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JOHNA.SEAVERNS 
 
OLIPHANT'S 
 
 LAW OF HORSES. 
 
^^ 
 
THE 
 
 LAW OF HOESES, 
 
 INCLtTDIXa THE LAW OF 
 
 |triiIvW|rtrs, Merirai'g ^itrgmts, 4c., 
 
 HUNTING, RACING, WAGERS & GAMING. 
 
 BY 
 
 GEORG-E HENRY HEWITT OLIPHANT, 
 
 0/ Trinity College, Cambridge, S.A., and Liner Temple, Esq., Barrister-at-Law. 
 
 dFourtfi iEtrttiott, 
 By CLEMENT ELPHINSTONE LLOYD, B.A., Oxoii., 
 
 OF THE INXEK TEMPLE, ESQ., BARRISTEK-AT-L.4.W. 
 
 "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." — Bohe of 
 Husbandry, by Sir A. Fitzherbert, Justice. of the Court of Common Fleas. 
 
 LONDON : 
 
 HENRY SWEET, 3, CHANCERY LANE, 
 
 MEEEDITH, RAY & LITTLER, IIANCHESTER. 
 J. C. JUTA, CAPE TOWN. C. F. MAX^VELL, IVIELBOURNE. 
 
 1882 
 
" Caveat emptor." — Lee/. Mao:. 
 
 "Equi donati dentes non iuspiciuntur." — D. Uicron. in rroccm. Eplst. ad 
 Ephcs. 
 
 ' ' Primus Erictlionius currus et quatuor ausus 
 Jungere equos." — Virg. Georg. 
 
 " Tu qui caeteris cavere didicisti, in Britannia ue ab essedariis decipiaris 
 caveto." — Cic. Ej). Lib. 7, Ej). 6. 
 
 " Seu quis, Olympiacas miratus prtcmia palmae, 
 
 Pascit equos 
 
 Corpora prtccipue matrum Icgat." — Tirg. Gcorg. 
 
PREFACE 
 
 TO THE FOURTH EDITION. 
 
 Since the publication of the last Edition of this 
 \York the changes which have taken place in the 
 law on the subjectKS embraced within its somewhat 
 extensive scope have been very considerable. 
 While strictly adhering to the plan of the original 
 Work, the present Editor has taken great pains 
 to eradicate all obsolete matter, and at the same 
 time to combine with the text the additions and 
 alterations rendered necessary by the above 
 changes. The most important alterations are 
 probably those necessitated by the passing of the 
 Regulation of Railways Acts, 1868 and 1871, the 
 Judicature Acts, and the Innkeepers Act, 1878; 
 whilst at the same time the reported decisions 
 during the last seventeen years have affected 
 every branch of the subject. 
 
 The Index has been thoroughly revised and 
 considerably enlarged, • and care has been taken 
 
VI PREFACE TO THE FOURTH EDITION. 
 
 to make the references to tlie new cases as 
 numerous as possible, and to notice any conflict 
 that may exist between the decisions in this 
 country and those in the United States. 
 
 CLEMENT E. LLOYD. 
 
 4, Ivixa's Bench Walk, Temple, 
 Jiaie, 1882. 
 
PREFACE 
 
 TO THE THIRD EDITION. 
 
 In preparing a new Edition of Mr. Oliphant's valuable 
 Treatise on tlie Law of Horses, it has been the endeavour 
 of the present Editor to amalgamate with the text of the 
 preceding Edition such new matter as the growth of legal 
 science during a period of eleven years has supplied, with- 
 out disturbing the symmetry or impairing the method of 
 the original Work. 
 
 It has been found necessary indeed to make considerable 
 additions to the text, for there are few subjects upon 
 which the law is long silent. But the alterations have been 
 few, inasmuch as the opinions expressed by Mr. Oliphant 
 have, in almost every instance, been confirmed by sub- 
 sequent decisions ; those, therefore, which have been made, 
 have been rendered necessary, for the most part, by legis- 
 lative enactment, as, for instance, by the Common Law 
 Procedui'e Acts of 185i and 1860, by the Railway and 
 Canal Traffic Act of 1854, and by the Act for the Sup- 
 pression of Graming Houses of the same year. 
 
 The present Editor has had access to the notes and 
 references made by the Author during the earlier part of 
 the period which has elapsed since the publication of . the 
 Second Edition, and must make due acknowledgment for 
 the assistance thence derived. 
 
Vlll PREFACE TO THE THIRD EDITION. 
 
 lie ventures to express his hope that this Edition will 
 not prove unworthy of the reputation which this Book has 
 hitherto enjoyed, and that his aim to preserve its character 
 as a complete Manual upon the various points of contact 
 between the Horse and the Law, and upon the subjects 
 kindred to them, has not been altogether unsuccessful. 
 
 G. R. EYDER. 
 
 10, King's Bench Walk, Temple, 
 Mdi/, 18G5. 
 
PREFACE 
 
 TO THE SECOND EDITION. 
 
 The ease of the Sale of a Horse Is often chosen by our 
 Judges as a favourite and popular mode of illustrating 
 their views in numerous cases coming before them with 
 respect to the Bargain and Sale of Chattels. It is here 
 intended that the Law relating to Horses should be used 
 for a similar purpose ; because nearly the same incidents 
 which affect the Bargain and Sale of Horses also affect 
 the Bargain and Sale of other Chattels, including manu- 
 factured 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. 
 
 Grreat care has been taken to keep out all matter which 
 might tend to encumber the Book, but the most ample 
 references are given. 
 
 During the last few years there have been numerous 
 decisions with respect to the Bargain and Sale of Chattels, 
 and the other subjects here treated of. It will also bo 
 seen that great changes have recently been made in the 
 Law of Pleading and Evidence; and that the Law of 
 Wagers has been most materially affected by the " Act for 
 the suppression of Betting Houses." 
 
 a. H. H. 0. 
 
 1, New Court, Temple, 
 Dec. 20111, 1853. 
 
PREFACE 
 
 TO THE FIRST EDITION. 
 
 The object of tlie present Treatise is to lay before the 
 profession and the public, in as short and convenient a 
 form as possible, the Law of Contracts concerning Horses, 
 whether it be in buying, selling, hii-ing, or in any other 
 manner dealing with them ; to ascertain the liabilities in- 
 curred 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 connection 
 with the recent alterations effected by the Act of Victoria. 
 The Appendix contains some very late cases, a few im- 
 portant Statutes, and other information which may be 
 found useful for general reference. An attempt has been 
 made, by a judicious division of the subject, and the 
 introduction of marginal notes, to make the text as acces- 
 sible as possible. 
 
 G. H. H. 0. 
 
 Temple, May Ihih, 1847. 
 
TABLE OF CONTENTS. 
 
 Paet I. 
 
 CONTRACTS CONCERNING HORSES, &c. 
 
 CHAPTEE I. 
 
 BITYIXG, SELLING AND EXCHANGING ; THE REQUISITES OF THE STATUTE OF 
 FRAUDS ; DELIVERY AND PAYMENT, AND THE LAW AS TO SUNDAY DEALING. 
 
 Bargaix, Sale and Exchange. page 
 
 Bargain 3 
 
 Sale and Exchange id. 
 
 Bargain and Sale id. 
 
 Transfer of Property by Gift id. 
 
 Executed and Executory Contract . . id. 
 
 Entire Contract id. 
 
 Severable Contract id. 
 
 Verbal Contract id. 
 
 Written Contract id. 
 
 Right of Rescission 4 
 
 Right of Trial id. 
 
 Buying a Horse under 10^ id. 
 
 Where neither Party can be off ... . 5 
 
 Striking a Bargain id. 
 
 Contract not to be performed within 
 
 a Year id. 
 
 Statute of Frauds, s. 4 id. 
 
 Requisites under s. 4 id. 
 
 Buying a Horse at 10/. or upwards 6 
 
 Statute of Frauds, s. 17 id. 
 
 Extended by 9 Geo. 4, c. 14 id. 
 
 Effect of Extension id. 
 
 Requisites under s. 1 7 7 
 
 The Acceptance and Receipt. 
 
 In what they consist 7 
 
 General Rule id. 
 
 Acceptance before Delivery 8 
 
 When Vendor may disaffirm Sale . . id. 
 
 Where an Article is selected id. 
 
 Question for Jiuy 9 
 
 Seller may become Agent of Buyer . 10 
 Constructive Possession of Buyer . . id. 
 What has been held sufficient as an 
 
 Acceptance and Receipt id. 
 
 What has been held insufficient .... 11 
 
 Various Acts of Ownership) 12 
 
 A Ready-Money Transaction , id. 
 
 The Acceptance and Receipt — con. page 
 Criterion for detennming whether 
 
 Goods accepted or not 13 
 
 Where Buyer offers to resell id. 
 
 Where Goods are agi-eed to be resold id. 
 Goods bought out of a larger Bulk . . id. 
 
 Vendee disposing of Goods 14 
 
 Goods sold by Sample id. 
 
 More Articles sent than ordered .... id. 
 Acceptance must be unequivocal . . 15 
 Delivery Order id. 
 
 The Earnest and Pabt-Payment. 
 
 Two Kinds of Earnest 15 
 
 Symbolical 16 
 
 Pecuniary id. 
 
 Pecuniary Earnest is Part-payment id. 
 Should be retained by Vendor .... id. 
 
 The Old Rule id'. 
 
 Effect of Earnest under Statute of 
 
 Frauds 17 
 
 Effect of Part-payment id. 
 
 Part-payment in Contract not within 
 
 Statute of Frauds id. 
 
 The Note or Memorandum in Writ- 
 ing. 
 
 Written Agreement 17 
 
 No particular Form required id. 
 
 Names of the Contracting Parties . . 18 
 Terms of the Contract must be stated id. 
 May be collected from more than one 
 
 Document id. 
 
 The Stamp Act id. 
 
 Catalogue at a Sale id. 
 
 Price where agreed upon 19 
 
 Where no Price is agreed upon .... 20 
 
 Contract by Letter id. 
 
 Sufficient between the Parties id. 
 
Xll 
 
 TABLE OF CONTENTS. 
 
 The Note or Memorandum in "Writ- 
 ing — continued. PAGE 
 Must express all the Terms of the 
 
 Agreement ■ 20 
 
 Mutual Assent 21 
 
 Where the Contract is complete .... 23 
 Tenns cannot be varied by Parol . . id. 
 
 But may be explained 24 
 
 Evidence that Goods are supi^ied on 
 
 Credit id. 
 
 Matters antecedent to the Writing . . id. 
 
 Condition Precedent id. 
 
 When admissible id. 
 
 Memorandum made after Action . . 25 
 A foreign Contract id. 
 
 The Signature by the Party to be 
 
 CHARGED. 
 
 What is necessary 25 
 
 As to Initials id. 
 
 Where a Man prints his Name .... id. 
 Names of Parties, how to be shown . . 26 
 Signature for other Purpose id. 
 
 The Signature by an Agent. 
 
 What is necessary 26 
 
 Who may be an Agent 27 
 
 How constituted id. 
 
 Need not be authorized in Writing . . id. 
 
 Auctioneer id. 
 
 Auctioneer's Clei-k id. 
 
 Clear Recognition of Contract by 
 Parties sufficient id. 
 
 Delivery and Payment. 
 
 Eights of Property and Possession . . 28 
 
 Executed and Executory Contracts id. 
 
 Property may pass without Delivery id. 
 
 What immediately passes the Pro- 
 perty id. 
 
 Condition as to Price ascertainable . . id. 
 
 Effect where not ascertainable .... 29 
 
 Unreasonable, but not therefore to be 
 rejected id. 
 
 Risk after Sale id. 
 
 Goods to be made to Order 30 
 
 Goods to be delivered on a future Day id. 
 
 Delivery and Payment — contd. page 
 
 Delivery and Payment contempo- 
 raneous Acts 30 
 
 Time not the Essence of a Contract id. 
 
 Where nothmg is said about the Time 
 of Delivery 31 
 
 Relative Position of the Parties .... id. 
 
 Seller's Lien for the Price id. 
 
 Lien in Case of an Exchange id. 
 
 Conditional Possession id. 
 
 Buyer's Right of Possession where 
 Goods are sold on Credit 32 
 
 How it may be defeated id. 
 
 Seller's Lien during Possession .... id. 
 
 His Right of Stoppage in transitu. . id. 
 
 When Goods are held to be in 
 transitu id. 
 
 Wlien anything remains to be done 
 by Seller id. 
 
 Effect of Stoppage in transitu 33 
 
 Goods to be delivered before Pay- 
 ment id. 
 
 When Tune of Delivery is not fixed 
 to a Day id. 
 
 Goods to be paid for before Delivery id. 
 
 Renunciation of Contract id. 
 
 Price directed to be sent by Post .... 34 
 
 Post Office Order id. 
 
 Forged Bank Note id. 
 
 Dishonoured Bill id. 
 
 Halves of Bank Notes •. . id. 
 
 Writing off Debt by Agent to 
 Agent id. 
 
 Banker's Cheque id. 
 
 Bill of Exchange 35 
 
 Debt paid to a Third Party id. 
 
 Sunday Dealing. 
 
 Law of King Athelstan 35 
 
 Statute of CUiarles 2 id. 
 
 Farmer not within the Statute .... 36 
 
 Sale by a Horsedealer ^ id. 
 
 By an ordinary Person id. 
 
 A subsequent Ratification id. 
 
 Breach of a Warranty given on a 
 Sunday 37 
 
 CHAPTER II. 
 
 HORSEDEALERS, REPOSITORIES AXD AUCTIONS. 
 
 Horsedealer. 
 
 Definition of a Horsedealer 38 
 
 A Seller on Commission id. 
 
 The Proprietor of Aldridge's 39 
 
 No Duty payable by a Horsedealer . id. 
 Horsedealer when a Trader within 
 Bankruptcy Act id. 
 
 Repositories and Auctions. 
 
 An Auctioneer , 39 
 
 Liable to an Action for Negligence. 40 
 
 Or for Conversion id. 
 
 Selling Horse comprised in Bill of 
 
 Sale 41 
 
 Horse sent to a Repository id. 
 
TAULE OF CONTENTS. 
 
 XIU 
 
 Repositories axd Auctions— cc/y^W. page 
 
 Auctioneer's Possession 41 
 
 An Auctioneer can set up Jus tertii. 42 
 
 Interpleader by Auctioneer id. 
 
 Goods privileged from Distress .... id. 
 His Right to remain on the Premises 43 
 Auctioneer or Clerk Agent of both 
 
 Parties id. 
 
 Purchaser's Name signed to a Cata- 
 logue id. 
 
 Printed Particulars of Sale 44 
 
 An incorrect Catalogue id. 
 
 A limited Warranty id. 
 
 Where it applies only to Soundness . 45 
 Trial of a Horse warranted quiet in 
 
 Harness 46 
 
 Notice of the Conditions of Sale .... id. 
 
 Notice of Particulars 47 
 
 Where a Bidder may retract id. 
 
 Sale " without reserve" id. 
 
 Effect of Advertisement 48 
 
 Warranty of Ownership id. 
 
 Auctioneer not disclosing his Prin- 
 cipal 49 
 
 Repositories and AvcTWKS—contd. page 
 
 Liability for Non-Delivery 49 
 
 PufiBng id. 
 
 Person employed to bid 50 
 
 Effect of previous Private Warranty 51 
 Agreement not to bid against each 
 
 other id. 
 
 Mock Auctions id. 
 
 Purchaser may transfer his Bargain id. 
 Where Party refuses to take Goods . id. 
 Goods resold without communicating 
 
 with Purchaser 52 
 
 Auctioneer proper Party to receive 
 
 the Price id. 
 
 Has no Authority to receive a Bill 
 
 of Exchange id. 
 
 He is Stakeholder for both Parties. . id. 
 
 Effect of this Attribute id. 
 
 As to Interest 53 
 
 Auctioneer's Lien id. 
 
 When the Price vests in the Vendor id. 
 Price obtained by Principal's Fraud id. 
 Agent not declaring himself to be so 54 
 Auctioneer's Commission id. 
 
 CHAPTEE III. 
 
 FAIRS AND MARKETS OVERT ; UORSE STEALING, AND THE RECOVERY OF STOLEN 
 
 HORSES. 
 
 Fairs and Markets overt. 
 
 Sales at Fairs and Markets overt . . 55 
 
 The General Rule of Law 5G 
 
 When Market overt is held id. 
 
 Where Market overt is held id. 
 
 What held to be Market overt with- 
 out the City of London id. 
 
 What held to be Market overt within 
 the City of London id. 
 
 Horse " an Article" within 10 & 11 
 Vict. c. 14 57 
 
 Fearon v. Mitchell id. 
 
 Where a Horse at a Fair is exempt 
 from Distress 59 
 
 Sale of Diseased Animals in id. 
 
 Horse Stealing. 
 
 Statute of 24 & 25 Vict. c. 9G 59 
 
 Description in an Indictment id. 
 
 When the Offence is complete .... GO 
 
 Property given up id. 
 
 Delivery of a Horse to a Stranger . . id. 
 
 Delivery on Trial Gl 
 
 Goods taken without Consent id. 
 
 id. 
 
 id. 
 
 62 
 
 id. 
 
 id. 
 
 id. 
 
 id. 
 
 Appropriation of a hired Horse . . 
 Larceny without Proof of Sale . . 
 Taking with an Intent to use .... 
 Possession Six Months after Loss 
 
 Killing or Maiming Horses 
 
 Other Animals 
 
 Pouring Acid into a Mare's Ear . . 
 
 Horse Stealing — continued. 
 
 " Maiming and Wounding" 62 
 
 Use of Instrument need not be proved 63 
 
 MaHco id. 
 
 Drugging of Animals Act id. 
 
 Recovery of Stolen Horses. 
 
 Sale in Market overt 63 
 
 Statutory Regulations 64 
 
 Recovery when sold under these re- 
 gulations id. 
 
 Owner must prove the Horse was 
 stolen .' id. 
 
 Sale out of Market overt id. 
 
 Recovery when not sold under these 
 Regulations id. 
 
 Proof of Compliance with Statute , . 65 
 
 Rule that Owner must first endea- 
 vour to bring the Thief to Justice id. 
 
 To be taken with Modifications id. 
 
 Where the Action is against a Thii-d 
 Party 66 
 
 Evidence of Conversion id. 
 
 Order for Restitution id. 
 
 Or Action of Trover id. 
 
 Order of Police Magistrate 67 
 
 Where no Special Damages can be 
 awarded id. 
 
 Rcjjievin for unlawful Taking 68 
 
 Wrongful Sale by Agent of Horse 
 entrusted to him id. 
 
XIV 
 
 TABLE OF CONTENTS. 
 
 CHAPTEE IV. 
 
 WHAT DISEASES OR BAD HABITS CONSTITUTE UXSOUXDXESS OR VICE. 
 
 Unsoxtndness and Vice. page 
 
 Present State of the Law 70 
 
 Definition of Soundness 71 
 
 A Sound Horse id. 
 
 Rule as to Unsoundness id. 
 
 The Term " Natural usefulness" . 72 
 Important Decision as to Unsound- 
 ness id. 
 
 Temporary Diseases 73 
 
 Acute Diseases 74 
 
 Rule as to Vice id. 
 
 How Unsoundness or Vice should 
 
 be left to a Jury id. 
 
 Diseases, Defects, or Alteeations in 
 
 Stkuctuee, and Bad Habits. 
 
 Backing and Gibbing 75 
 
 Biting id. 
 
 Blindness id. 
 
 Cataract id. 
 
 Remittent Inflammation 76 
 
 Opacity of the Lens held to be an 
 
 Unsoundness id. 
 
 Blood and Bog-Spa\'in 77 
 
 Bone- Spavin id. 
 
 Held to be an L^nsoundness .... id. 
 
 Broken-backed 78 
 
 Broken-down id. 
 
 Broken-knees id. 
 
 Broken-wind id. 
 
 Bronchitis 79 
 
 Canker id. 
 
 Capped Hocks id. 
 
 Cataract id. 
 
 Chestfounder id. 
 
 Chinked in the Chine 80 
 
 CHcking id. 
 
 Cloudiness id. 
 
 Contraction id. 
 
 "When held to be an Unsound- 
 ness 81 
 
 Corns id. 
 
 Cough 82 
 
 Held to be an Unsoundness when 
 
 temporary id. 
 
 Confirmed by a later Decision .... 83 
 
 Crib-bituig 84 
 
 When not an Unsoundness .... id. 
 
 Held to be a Vice 85 
 
 Curb id. 
 
 Curby Hocks not an Unsound- 
 ness 86 
 
 Cutting 87 
 
 Held not to be an Unsoundness . id. 
 
 Dropsy of the Skin id. 
 
 Dropsy of the Heart id. 
 
 Diseases, Defects, oe Alteeations in 
 
 Steuctuee, etc. — continued. page 
 
 Enlarged Glands 88 
 
 Enlarged Hock id. 
 
 Ewe Neck id. 
 
 Ealse Quarter id. 
 
 Farcy id. 
 
 Water Farcy 89 
 
 Founder id. 
 
 Gibbing id. 
 
 Glanders id. 
 
 Infectious to Mankind id. 
 
 The Contagious Diseases (Ani- 
 mals) Act 90 
 
 Glaucoma id. 
 
 Grease id. 
 
 Grogginess id. 
 
 Grunting 91 
 
 Gutta Serena id. 
 
 Hereditary Disease id. 
 
 Kicking 92 
 
 Kidney-di'opping id. 
 
 Lameness id. 
 
 Temporary Lameness an Un- 
 soundness id. 
 
 Laminitis 93 
 
 Lampas 94 
 
 Liver Disease id. 
 
 Lungs hepatized id. 
 
 Mallenders and Sallenders id. 
 
 Mange id. 
 
 Navicular Joint Disease id. 
 
 Nerved Horse id. 
 
 Held to be L^nsovmd 95 
 
 Nose, Chronic Discharge id. 
 
 Not lying do-rni 96 
 
 Opacity of the Lens id. 
 
 Ossification of the Cartilages .... id. 
 
 Overreach id. 
 
 Parotid Gland ulcerated 97 
 
 Poll-evil id. 
 
 Pumiced Feet id. 
 
 Qmdding id. 
 
 Quittor id. 
 
 Rat-tails 98 
 
 Rearing id. 
 
 Rheumatism id. 
 
 Ring-bone id. 
 
 Roaring 99 
 
 Decisions on the Subject id. 
 
 Rolling 100 
 
 Running away id. 
 
 Saddle-galls id. 
 
 Pimple on a Horse's Skin 101 
 
 Question for the Jiuy id. 
 
 Sallenders id. 
 
TABLE OF CONTENTS, 
 
 XV 
 
 Diseases, Defects, oe Alterations in 
 Steucttjee, etc. — contimied. page 
 
 Sandcrack 101 
 
 Scab 102 
 
 Statute of Hen. 8 id. 
 
 Shivering id. 
 
 Shying id. 
 
 Shying a result of short-sighted- 
 ness id. 
 
 Sidebones 103 
 
 Slipping the Collar id. 
 
 Spavin id. 
 
 Speedy-cut id. 
 
 Splint id. 
 
 Decision on the Subject 104 
 
 Sprain and Thickening of the Back 
 Sinews id. 
 
 Star-gazer 105 
 
 Ewe-necked id. 
 
 Strangles id. 
 
 Stringhalt id. 
 
 Held to be an Unsoundness .... id. 
 
 Thickenrng of the Back Sinews . . 107 
 
 Diseases, Defects, oe Alteeations in 
 Steucttjee, etc. — continued. page 
 
 Thick-wind 107 
 
 Thinness of Sole id. 
 
 Held not an Unsoundness id. 
 
 Thoroughpin 108 
 
 Thrush id. 
 
 Tripping id. 
 
 Vicious to clean 109 
 
 Vicious to shoe id. 
 
 Wall-eyed id. 
 
 Warbles id. 
 
 Warts id. 
 
 Water-farcy id. 
 
 Weak-foot id. 
 
 Weaving 110 
 
 Wheezing id. 
 
 Whistling id. 
 
 Wilremhaunch id. 
 
 Wind-gaUs id. 
 
 Wind -sucking Ill 
 
 Wolf's tooth id. 
 
 YeUows id. 
 
 CHAPTER V. 
 
 WARRANTY ; SALE ^VND WAKRAXTY BY AX AGENT ; AKD PATENT DEFECTS. 
 
 WaeeAnty. 
 
 biiyinc 
 
 Warranty requii'ed 
 
 Horse 
 
 Warranty of Title 
 
 Not implied by Law of England . , 
 
 How it may be inferred 
 
 Rule of Law 
 
 Where the Consideration fails .... 
 
 Mode of trying a disputed Title . . 
 
 Reason for requiring a Warranty . 
 
 Buyer should protect himself by one 
 
 What constitutes a WaiTanty .... 
 
 Article named in a Sold Note .... 
 
 Buyer entitled to Article commer- 
 cially known by the Name 
 
 A Sound Price not tantamount to a 
 Warranty 
 
 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 .... 
 
 Warranty may be gathered from 
 Letters 
 
 The Parties are bound by it alone . 
 
 It cannot be extended by Implica- 
 tion 
 
 113 
 
 id. 
 
 id. 
 
 id. 
 114 
 
 id. 
 
 id. 
 115 
 116 
 
 id. 
 
 id. 
 
 id. 
 
 117 
 
 id. 
 id. 
 id. 
 118 
 id. 
 id. 
 id. 
 
 119 
 
 id. 
 
 id. 
 
 Waeeanty — con tinned. 
 
 A Warranty is several though the 
 
 Contract be entire 119 
 
 A Warranty applies to the Time of 
 
 Sale id. 
 
 Warranting a future Event 120 
 
 Buying for a particular Purpose . . id. 
 Must be reasonably fit for the Pur- 
 pose id. 
 
 A Carriage Horse 121 
 
 Latent undiscoverable Defects .... id. 
 
 Quiet iu Harness id. 
 
 Unfitness must be clearly proved. . 122 
 
 General Rule id. 
 
 Warrantor's Liability 123 
 
 Sale avoided by Eraud id. 
 
 Sale and Waeeanty by an Agent. 
 
 An Agent cannot delegate his 
 Authority 123 
 
 Nor exceed it 124 
 
 Agency determines by Principal's 
 Death id. 
 
 Difference between a remunerated 
 and an unremunerated Agent . . id. 
 
 Agent acting without proper Au- 
 thority id. 
 
 His Personal Responsibility id. 
 
 Where he cannot be sued on the 
 Contract id. 
 
XVI 
 
 TABLE OF CONTENTS. 
 
 Sale and Waeeanxy by an Agent— 
 
 continued. tage 
 
 But is liable in Damages 125 
 
 Principal answerable for his Fraud id. 
 Misrepresentation collateral to tlie 
 
 Contract id. 
 
 Damage caused by his Negligence . id. 
 
 Undisclosed Principal id. 
 
 Person described as Agent may be 
 
 proved to be Principal 126 
 
 Principal cannot be proved to be an 
 
 Agent 127 
 
 Their respective Rights of Action 
 
 on a Contract id. 
 
 Warranty by a Servant as Special 
 
 Agent id. 
 
 Warranty by a Servant as General 
 
 Agent 128 
 
 Evidence of Usage not to warrant . 130 
 Warranty by a Servant after Sale . id. 
 Warranty by a Servant forbid to 
 
 give one id. 
 
 WaiTanty by a Stranger forbid to 
 
 ffive one 131 
 
 Sale and Waeeanty by an Agent — 
 
 continued. PAGE 
 
 Master unwilling to stand by his 
 
 Servant's Warranty 131 
 
 Rule as to a Servant binding his 
 
 Master 132 
 
 Warranty by a Person entmsted to 
 
 deliver id. 
 
 Agent employed to take a Warranty id. 
 Action against a pretended Agent . id. 
 
 Patent Defects. 
 
 Not covei-cd by a Warranty 133 
 
 In what they consist id. 
 
 How far the loss of an Eye is patent id. 
 
 "Bright Eye" 134 
 
 Convexity of Eye id. 
 
 Where the Buyer knows the Defect id. 
 
 Where Defects are discussed id. 
 
 Conclusion to be drawn from the 
 
 Cases 136 
 
 Suspected Defects 137 
 
 Piu-chase without Inspection .... id. 
 
 CHAPTEE VI. 
 
 ■SVARR^iJ^TY DISTINGUISHED FEOM EEPEESENTATION. 
 
 Representation intended as a War- 
 ranty 138 
 
 Recommendation of the Seller .... id. 
 
 Affirmation as to Value id. 
 
 Distinction between a Warranty 
 and a Representation , id. 
 
 Wliero a Representation amounts 
 to a Warranty 139 
 
 Question to be put to the Jury .... 140 
 
 Rule as to Warranty and Repre- 
 sentation 141 
 
 Mere Expression of Opinion 141 
 
 Selling according to Pedigree .... id. 
 
 Partly a Warranty and partly a 
 
 Representation id. 
 
 The Jiuy must decide between a 
 
 Warranty and Representation . . 142 
 
 rercival v. Oldacre 143 
 
 Judgment in Behn v. Btirncss .... id. 
 
 Counterfeit Trade Marks , 14-3 
 
 CHAPTER VII. 
 
 FRAUDULENT CONTRACTS. 
 
 Where the Law does not interfere . . 146 
 
 Where several Persons combine to 
 cheat 1;17 
 
 Conspiracy to cheat Indictable id. 
 
 There must be Evidence of Concert . . id. 
 
 What Evidence has been held Insuffi- 
 cient id- 
 
 Conspiring to obtain Money by False 
 Pretences 148 
 
 Conspiring to induce a Creditor to 
 forego his Claim 148 
 
 Where only one Person cheats, an 
 Action lies id, 
 
 ChancMor v. Lopus id. 
 
 Remarks on that Case 149 
 
 Form of Action id. 
 
 Foundation of the Action 150 
 
 In what Fraud consists id. 
 
TABLE OF CONTENTS. 
 
 XVU 
 
 PAGE 
 
 There must bo moral Fraud 150 
 
 EjGfect of Fraud id. 
 
 How the Question of Fraud is to be 
 
 decided id. 
 
 Falsehood must be followed by Da- 
 mage id. 
 
 A naked Lie no cause of Action .... 151 
 
 Presumption that Person defrauded 
 was influenced by the Misrepresen- 
 tation id. 
 
 Due Caution must always be observed id. 
 
 Not Fraud to suppress what there is 
 
 no Duty to communicate id. 
 
 Requisites to an Action for False Re- 
 presentation 152 
 
 Or on Breach of Warranty id. 
 
 Caveat I^inptor id. 
 
 A visible Defect and a nude Assertion id. 
 
 Dealing Talk id. 
 
 Collateral Fraud does not avoid a 
 
 Contract 153 
 
 A Foolish Bargain id. 
 
 Representation known to be untrue . . id. 
 
 Made before a Sale by Auction .... id. 
 
 Made by a Bidder at an Auction .... 154 
 
 Representation not known to be true. id. 
 
 A well-grounded Belief id. 
 
 Delusion affecting the Contract .... id. 
 
 Representation to prevent Inquiries . . id. 
 
 Representation through a Third Party 1 5 5 
 
 Representation by a Thml Party .... id. 
 
 A hona fide Representation id. 
 
 Representation as to Credit id. 
 
 PAGE 
 
 Sale of Goods " with all Faults" ex- 
 cludes latent Defects 156 
 
 Unless there be an express Warranty id. 
 
 Or Fraud is used to conceal them .... id. 
 
 Plugging, &c 158 
 
 Ward V. Uobbs id. 
 
 Contract made voidable by Fraud . . id. 
 
 Where Fraud is practised upon the 
 Buyer 159 
 
 Except where it works Injustice .... id. 
 
 Where he continues to deal with the 
 Article id. 
 
 Where Fraud is practised upon the 
 Seller id. 
 
 Resale by the Buyer to an innocent 
 Vendee id. 
 
 Contract with intent to cheat the 
 SeUer 160 
 
 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 id. 
 
 Payment by a Cheque which is dis- 
 honoured 161 
 
 Fraud of an Infant id. 
 
 Of a Married Woman id. 
 
 Where a Contracting Party is Weak- 
 minded 162 
 
 Drunkenness of a Contracting Party . id. 
 
 Goods kept by the Party when sober . id. 
 
 CHAPTEE VIII. 
 
 BREACH OF WARRANTY. 
 
 Beeach of Waeeanty. 
 
 Buyer neither bound to tender the 
 
 Horse nor give Notice 163 
 
 Seller not bound to take back the 
 
 Horse id. 
 
 Unless the Contract was executory ] 64 
 
 Street v. Blaij id. 
 
 Judgment of the Court of King's 
 
 Bench id. 
 
 Lord Eldon's Opinion discussed. 165 
 Evidence in Mitigation of Da- 
 mages 166 
 
 Unfitness for a particular Pur- 
 pose id. 
 
 An intermediate Profit id. 
 
 Acts of Ownership inconsistent 
 
 with Trial 167 
 
 Confirmed by a later Case id. 
 
 Goods are retiu-nable where there 
 
 is Fraud 168 
 
 But not for Non-correspondence 
 
 with Sample id. 
 
 O. 
 
 Beeach of Waeeakty — continued. 
 
 Agreement that a Horse is to be 
 returned if Unsound 
 
 Head v. Tattersall 
 
 Or unsuitable 
 
 Or unfit for a particular Purpose . . 
 
 Verbal Offer after Sale to take back 
 the Horse 
 
 Where Goods should be returned 
 immediately 
 
 Or the Contract becomes complete . 
 
 Where Buyer should tender the Horse 
 
 Sale after Tender 
 
 Notice instead of Tender 
 
 Length of Time before Notice .... 
 
 Seller should have the Horse ex- 
 amined 
 
 Breach of AVarranty no Defence to 
 an Action on a Bill of Exchange 
 
 Unless there be a total Failure of 
 Consideration 
 
 Sale by Order of Coui't 
 
 b 
 
 168 
 169 
 
 id. 
 170 
 
 id. 
 
 id. 
 id. 
 id. 
 171 
 id. 
 
 172 
 
 id. 
 
 id. 
 id. 
 
XVlll 
 
 TABLE OF CONTENTS. 
 
 CHAPTER IX. 
 
 PLEADING, EVIDENCE AND DAMAGES. 
 
 Pleading and Evidence foe the 
 
 Plaintiff. page 
 
 Executory and executed Contracts. 174 
 
 Action for Price of Horse 175 
 
 Action for not accepting id. 
 
 Resale of the Goods id. 
 
 Action for Detention of Goods .... id. 
 
 Delivery of specific Goods 176 
 
 Action for not delivering id. 
 
 Goods sold and delivered for Pay- 
 ment of the Price 177 
 
 Action maintainable on Rescission 
 
 of Contract by one of the Parties id. 
 
 Horse sold and delivered id. 
 
 Money had and received for Repay- 
 ment of the Price 178 
 
 Under a Mistake id. 
 
 Money had and received for Repay- 
 ment of Part of the Price id. 
 
 Money had and received for Price 
 
 of Horse ■wTongfully sold 179 
 
 Money received subject to certain 
 
 Conditions "^• 
 
 Action on a Breach of Warranty. . id. 
 
 Action for a False Warranty .... id. 
 
 Liability of an Infant id. 
 
 Action for Fraudulent Representa- 
 tion 180 
 
 Statement of Facts in an Action for 
 
 Breach of Contract id. 
 
 Statement of Facts in an Action for 
 
 Deceit id. 
 
 Statement of the Consideration . . id. 
 
 If the Horse turn out lucky .... 181 
 
 Words used in the Statement . . id. 
 
 Statement of the Promise or War- 
 ranty .' 182 
 
 Condition annexed to the Promise 
 
 or Warranty id. 
 
 Qualification of the Promise or 
 
 Warranty id. 
 
 The Purchase and the Payment . id. 
 
 Statement of the False Warranty 
 
 or Fraudulent Representation .. 183 
 
 Statement of the Breach id. 
 
 Statement of the Damage 184 
 
 Proof in Goods bargained and sold id. 
 
 Proof in an Action for not accepting id. 
 
 Meaning of Readiness and Wil- 
 lingness id. 
 
 Proof in an Action for not deliver- 
 ing 185 
 
 Proof in Goods sold and delivered. . id. 
 
 Proof in Money had and received. . id. 
 
 Proof of an Account stated 186 
 
 Pleading and Evidence fob the 
 
 Plaintiff — continued. page 
 
 Proof in an Action for Breach of 
 
 Warranty 186 
 
 Proof in an Action for a False 
 
 WaiTanty id. 
 
 Where it is doubtful whether False 
 
 Warranty is proA^eable id. 
 
 Proof in an Action for Fraudulent 
 
 Representation 187 
 
 Proof of the Bargain and Sale .... id. 
 
 Proof of the Consideration id. 
 
 Proof of Payment of the Price .... id. 
 Appropriation of the Money ten- 
 dered 188 
 
 Ilardiiu/ham v. Allen id. 
 
 Proof of the Promise or Warranty . id. 
 
 A AVarranty not contained in the 
 
 Receipt 189 
 
 Warranty in a Receipt not always 
 
 conclusive id. 
 
 Written Warranty requires no 
 
 Agreement Stamp id. 
 
 Where Authority to warrant need 
 
 not be proved 190 
 
 Where Authority to warrant must 
 
 be proved id. 
 
 Proof of Power to rescind id. 
 
 Proof of Fraudulent Representation id. 
 
 Proof of the Breach of Warranty. . 191 
 
 Notice of the Nature of the Un- 
 soundness id. 
 
 Evidence as to Unsoundness .... id. 
 
 Matter of Fact alone id. 
 
 Either Fact or Veterinary Opinion id. 
 
 Both Fact and Veterinary Opinion id. 
 
 Veterinary Opinion alone 192 
 
 Evidence as to Vice id. 
 
 Evidence as to Unfitness, &c. . . id. 
 
 Proof of Rescission id. 
 
 Proof of Tender id. 
 
 Pleading and Evidence for the De- 
 fendant. 
 
 Admissions by Pleading 192 
 
 What must be specially pleaded . . id. 
 
 Specific Denials must be made .... 193 
 
 Denial of Contract id. 
 
 Allegation of Malice, &c id. 
 
 Defence for Detention of Goods , . id. 
 
 Defence for Goods bargained and 
 
 sold, and for not accepting .... id. 
 
 Defence in an Action for not de- 
 livering 194 
 
TABLE OF CONTENTS. 
 
 XIX 
 
 Pleading and Evidence foe The De- 
 fendant — continited. page 
 Where Evidence of Usage of Trade 
 
 is not admissible 194 
 
 Defence for Goods sold and deli- 
 vered id. 
 
 Defence to Action on a Cheque for 
 
 the Price id. 
 
 E\ddence in Reduction of Da- 
 mages id. 
 
 Defence for Residue of the Price 195 
 Defence for Money had and received id. 
 Defence to an Action on a Breach 
 
 of Warranty id. 
 
 A surreptitious Warranty id. 
 
 Condition annexed to a Warranty 196 
 Evidence in Reduction of Da- 
 mages 197 
 
 Defence to an Action for Fraudu- 
 lent Representation id. 
 
 Disputing the Warranty id. 
 
 Disputing the Unsoundness, &c. . . id. 
 
 Subsequent Recovery 198 
 
 Competency of Witnesses id. 
 
 Damages. 
 
 General Damages 198 
 
 Special Damages id. 
 
 Legal and natural Consequences of 
 Breach of Contract id. 
 
 Judges to direct Juries as to Rules 
 of Damages 199 
 
 Damages arising from special Cir- 
 cumstances id. 
 
 Effect of Notice 200 
 
 Damages for "wrongful Conversion. 201 
 
 Damages in tort id. 
 
 In Actions for a Sum certain , . , . id. 
 
 Interest 202 
 
 Damages — continued. page 
 
 17 & 18 Vict. c. 90 202 
 
 In Actions vrhich sound in Damages id. 
 
 A foolish Bargain 203 
 
 An impossible Contract id. 
 
 Cannot be higher than the Amount 
 
 laid 204 
 
 In Goods bargained and sold .... id. 
 
 In an Action for not accepting .... id. 
 
 In an Action for not delivering . . id. 
 
 Nominal Damages 205 
 
 lu Goods sold and delivered id. 
 
 In Money had and received id. 
 
 On Breach of WaiTanty id. 
 
 General Rule id. 
 
 Where the Horse has been re- 
 turned id. 
 
 Where the Horse has not been 
 
 returned 206 
 
 Where the Horse has been ten- 
 dered id. 
 
 Expense of Keep id. 
 
 Seller liable for reasonable Keep. 207 
 
 What is reasonable id. 
 
 Keeping the Horse till a Fair . , 208 
 Expense consequent on the War- 
 ranty id. 
 
 Expense in Selling 209 
 
 Expense in advancing the Horse's 
 
 Value id. 
 
 Plorse tendered, and then sold by 
 
 Auction id. 
 
 Expense of Veterinary Certiiicato 
 
 and Counsel's Opinion id. 
 
 Travelling Expenses 210 
 
 Loss of a good Bargain id. 
 
 Re-selling with a Warranty . , . , id. 
 
 Damages for Misrepresentation . . id. 
 
 Where the Damages are very small 212 
 
 CHAPTER X. 
 
 INNKEEPEKS, VETERINAEY SURGEONS, EAKRIERS, HORSE-BREAKERS, 
 TRAINERS, ETC. 
 
 Innkeeper. 
 
 His Business 214 
 
 Definition of an Inn id. 
 
 Derivation of Hostler id. 
 
 Who is a Guest id. 
 
 What an Innkeeper undertakes . . id. 
 
 Hours of Closing id. 
 
 Travellers and Lodgers 216 
 
 Innkeeper compellable to receive a 
 
 Traveller id. 
 
 May be indicted for refusing .... 217 
 
 What has been held to be no De- 
 fence id. 
 
 Innkeepee — continued. 
 
 Sickness, Drunlienness, &c 217 
 
 Action for Compensation id. 
 
 Not liable for refusing to supply 
 Post-Horses id. 
 
 Traveller not entitled to select jiar- 
 ticular Apartments id. 
 
 Liability of Innkeeper limited by 
 26 & 27 Vi>3t. c. 41 id. 
 
 Salaried Manager not liable as Inn- 
 keeper 218 
 
 Goods to ■which his Liability ex- 
 tends id. 
 
 hi 
 
XX 
 
 TABLE OF CONTENTS. 
 
 Innkeeper — continued. page 
 
 How ousted 219 
 
 Where a Guest's Horse is stolen . . 220 
 Where another Person's Horse is 
 
 stolen id. 
 
 Principle upon which Liability de- 
 pends id. 
 
 Horse out at Grass by the Guest's 
 
 desire id. 
 
 Horse out at Grass without the 
 
 Guest's desii'e 221 
 
 Where a Guest's Horse is injured. . id. 
 
 Presumption of Negligence against 
 the Innkeeper id. 
 
 Not rebutted by Stables being 
 
 out of his Control 222 
 
 A Guest's Goods not distrainable . 223 
 
 Even where he is accommodated 
 out of the Inn id: 
 
 Or uses a Stable iDrovided for the 
 
 Occasion id. 
 
 Innkeeper's Lien id. 
 
 Innkeeper has a Lien on a Horse 
 
 for its Keep id. 
 
 Cannot detain a Guest for his BiU . 224 
 
 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 225 
 
 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 Thii'd Party when answerable . . id. 
 Horse removed to defeat the Lien., id. 
 
 Keep during Detention 226 
 
 He cannot use a Horse he detains., id. 
 
 Innkeeper — continued. page 
 
 He could not formerly sell a Horse 
 
 he detained 226 
 
 But may now do so after Six weeks 227 
 Provisions of 41 & 42 Vict. c. 38 . . id. 
 Distrainor may seU a Horse for his 
 
 Keep 228 
 
 Veterinaet Surgeon and Farrier. 
 
 No Law peculiar to Veterinary 
 Surgeons 228 
 
 Farrier cannot refuse to shoe a 
 Hor.se ; . id. 
 
 When brought at a reasonable Time 229 
 
 Answerable for Ids own Want of 
 Skill id. 
 
 Where a Third Person is affected . . id. 
 
 When answerable for his Servant. . id. 
 
 Action against a Farrier for prick- 
 ing a Horse when shoeing liim . , id. 
 
 Collins V. Rodway id. 
 
 Rule as to Farriers 230 
 
 No Insurance against Injury .... 231 
 Peculiar Difficulties should be 
 
 mentioned id. 
 
 Coming at an L'nseasonable Hour id. 
 
 FaiTying, &c., in the Street 232 
 
 Horses standing to be shod not dis- 
 trainable id. 
 
 Horse may be detained for the 
 
 Price of his Shoeing id. 
 
 Such Lien is favoured by Law . . id. 
 Extends only to each particular 
 
 Time id. 
 
 Liability to feed a Hoi se detained 233 
 
 Horsebreaker, Trainer, &c. 
 
 Horsebreaker liable for Damage . . 233 
 
 Horsebreaker' s Lien id. 
 
 Trainer' s Lien id. 
 
 Stallion -master has a Lien 234 
 
 For Work done on a Sunday . . 235 
 
 CHAPTEE XI. 
 
 LIVERY-STABLE KEEPERS, AGISTERS, AND THE HIRING AND BORROWING 
 
 HORSES. 
 
 Liveet-Stable Keeper. 
 
 Has no Privilege 237 
 
 Liable where the Horse is lost .... id. 
 
 Horse at Livery distrainable id. 
 
 But not where he is merely to be 
 
 cleaned and fed id. 
 
 Distinction taken vcLTamonsx. Gin- 
 <jcU 238 
 
 LrvERT- Stable Keeper — continued. - 
 Livery-Stable Keeper has no Lien 
 
 for Keep 238 
 
 May have a Lien by Agreement . id. 
 Horse removed to defeat such 
 
 Lien id. 
 
 Livery -Stable Keeper has no Lien 
 for Money expended on Horse . . id. 
 
TABLE OF CONTENTS. 
 
 Liveey-Stable Keepers — continued, page 
 Wliat cannot bo set off in an Action 
 
 for Keep 239 
 
 He must take reasonable care of tlie 
 
 Horse id. 
 
 An Action for not taking due care 
 
 of a Horse founded on Contract . 240 
 Agister. 
 
 His Possession 240 
 
 Does not insure a Horse's Safety. . id. 
 
 He is answerable for Negligence . . id. 
 
 If he leaves his Gates open 241 
 
 Fences out of Order, &c id. 
 
 Injury by another Horse id. 
 
 The Horse's Condition 242 
 
 Eatage let for a certain Time .... id. 
 
 Agister has no Lien id. 
 
 May have a Lien by Agreement . . 243 
 Horses and Cattle being agisted are 
 
 distrainable 244 
 
 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 /(/. 
 
 Hieing Hoeses. 
 
 Letting for Hire 244 
 
 Warranty of Fitness for a Journey id. 
 
 Hyiuan v. Nt/e 245 
 
 Where a particular Horse is selected 247 
 But a Horse should not be used for 
 
 a piu'pose other than that for 
 
 which it was hired id. 
 
 What Care is required id. 
 
 Infancy good Defence to an Action 
 
 on Contract id. 
 
 Secus, where Action founded in Tort 248 
 Where Hirer is answerable at all 
 
 Events id. 
 
 Unnecessary Deviation id. 
 
 Where Negligence must be proved, id. 
 
 Where the Horse falls Lame id. 
 
 Where the Horse is exhausted .... id. 
 Where the Horse refuses its Feed . 249 
 Where the Horse is returned in 
 
 worse Condition id. 
 
 Expenses of Curing Sick Horse . . id. 
 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 250 
 
 Where the Horse is stolen by the 
 
 Hirer id. 
 
 Must have been originally taken 
 
 with a Felonious Intention at 
 
 Common Law 251 
 
 Hieing Horses — continued. page 
 
 Now Bailee indictable for Larceny 
 
 under 24 & 25 Vict. c. 96, s. 3. 251 
 
 Horse hired by a Servant id. 
 
 Owner'sLiabilityincase of Accident id. 
 
 Horses driven by the Owner's Ser- 
 vants 252 
 
 Horses driven by the Owner's Ser- 
 vants to a certain Place id. 
 
 Travelling post id. 
 
 Horses driven about Town by the 
 Owner's Servants id. 
 
 Laugher v. Fainter id. 
 
 Owner held liable in Quarman v. 
 
 Burnett 253 
 
 Wearing the Hirer's Livery .... id. 
 
 A Job-Master's Agreement 254 
 
 Where the Hirer is liable for Damage id. 
 
 Hirer liable through his own Conduct id. 
 
 Hirer liable where he might have 
 controlled his Servant id. 
 
 M' Liiughlin v. Frijor 255 
 
 Opinion of the Coui't of Common 
 
 Pleas id. 
 
 The General Pi,ule 256 
 
 Wliere the Hirer would not be 
 
 liable id. 
 
 Hirer sitting outside liable .... id. 
 
 The Jury must decide whether the 
 Servant is acting for the Hirer or 
 Owner 257 
 
 A Hirer's Agreement id. 
 
 BoEEOwiNG Hoeses. 
 
 Lending for Use '. , . . 258 
 
 Duties of Borrower and Lender . . id. 
 
 Lender of a Horse id. 
 
 Must not conceal Defects id. 
 
 What Care is required 258 
 
 As much as the Borrower is capable 
 
 of bestowing 259 
 
 Showing a Horse for Sale id. 
 
 A gratuitous Bailee 260 
 
 Neg'ligence of a Bailee id. 
 
 Rule as to Negligence of gratuitous 
 
 Bailee id. 
 
 Use strictly personal id. 
 
 Cannot be used by a Servant .... 261 
 Must be used according to theLend- 
 
 inj? id. 
 
 Or else the Borrower is answer- 
 able id. 
 
 Where no Time is fixed for Beturn id. 
 
 Redelivery on Request id. 
 
 Borrower bound to feed the Horse . id. 
 
 Wliere the Horse is exhausted .... 262 
 
 Where the Horse is killed id. 
 
 Where the Horse dies from Disease id. 
 Wliere Borrower is answerable for 
 
 Damage id. 
 
 Bailment ended by Misuser id. 
 
XXll 
 
 TABLE OF CONTENTS. 
 
 CHAPTEE XII. 
 
 CAEEYING nOESES. 
 
 PAGE 
 
 A Common Carrier 264 
 
 Railway Companies Common Carriers id. 
 
 Duty of Common Carriers id. 
 
 Inherent Vice in Animal 265 
 
 Proof of 266 
 
 Rule applies to Common Carriers by 
 
 Sea 267 
 
 When Carrier may refiise to carry 
 
 Animals 268 
 
 Onus of Proof of Non-liability id. 
 
 Must carry for reasonable Charges . . id. 
 
 Defects in Carriages id. 
 
 A special Contract to carry id. 
 
 Binding at Common Law 269 
 
 Hardship thus occasioned id. 
 
 Remedy 17 & 18 Vict. c. 31 id. 
 
 Sections 1 — 6 id. 
 
 Section 7 id. 
 
 Application of Section 7 270 
 
 Construction of Section 7 271 
 
 Feck V. Xorfh Staffordshire Eailwaij Co. id. 
 
 General Notices invalid 272 
 
 Condition limiting Liabihty id. 
 
 "Condition" and "Special Con- 
 tract ' ' s3Tionymous Terms id. 
 
 Special Contract binding on Company 
 
 without Signature 273 
 
 Effect of Signature by Agent id. 
 
 As to reasonableness Court to decide . id. 
 General Effect of these Decisions . . 274 
 What Conditions just and reasonable 
 
 and what not id. 
 
 " To be free from all Risks "—Cattle 
 
 suffocated id. 
 
 " To be free from all Risks of Con- 
 veyance ' ' — Unsound Truck 275 
 
 Owner's Risk at lower Rate 276 
 
 Condition as to Time within which 
 Loss should be declared to create 
 
 Claim id. 
 
 Condition as to Special Rate id. 
 
 As to Package insufficiently packed id. 
 As to Non-liability for Loss of 
 
 Market as to Eish id. 
 
 As to Cheese id. 
 
 Condition as to Special Rate — page 
 
 As to Loss of Market coupled with 
 
 " Injury " to Cattle 277 
 
 As to Value coupled with unreason- 
 able Rate 278 
 
 Where Value untruly declared 279 
 
 Condition as to General Non-liability id. 
 As to Non-liability beyond their 
 
 own Limits 280 
 
 If Part of Special Contract is reason- 
 able, such Part may be relied on . . 281 
 
 Alternative Rates id. 
 
 What is Wilful Misconduct 282 
 
 Onus of Proof 283 
 
 General Effect of the Decisions as to 
 
 Conditions id. 
 
 Dehvcry by Carrier id. 
 
 Notice of Consignee's Refusal to Con- 
 signor id. 
 
 Eft'ect of Consignee's Refusal id. 
 
 Compensation paid in Error to Con- 
 signor no Answer to Action by 
 
 Consignee 284 
 
 Liability of Company when Accident 
 happens to Horse in their Yard . . id. 
 
 Opinion of Cockbui'n, C.J id. 
 
 Of Mellor, J 285 
 
 Of Blackburn, J id. 
 
 Declaration of Value under 17 & 18 
 
 Vict. c. 31, 8. 7 id. 
 
 Non-compliance with a Rule as to 
 
 Receipt id. 
 
 Through Carriage on Railways, what 
 
 Company liable id. 
 
 Gill v. Manchester, %c. Rail. Co 286 
 
 ContheY. London andSoiith Western R. Co. 287 
 Through Carriage by Rail and Sea . . id. 
 Regulation of Railways Act. 1868 . . id. 
 Regulation of Railways Act^ 1871 . . 288 
 
 Boolan V. Midland Rail. Co 289 
 
 Steamboat and Railway Companies to 
 
 disinfect Carriages, Boats, &c 290 
 
 ' ' Reasonable Time " id. 
 
 A Eerryman 291 
 
 Damages 292 
 
 Injury must not be too remote id. 
 
TABLE OF CONTENTS. 
 
 XXIU 
 
 Part II. 
 
 NEGLIGENCE IN THE USE OF HORSES, &c. 
 
 CHAPTEE 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, 
 
 Negligent Deiving. page 
 
 Definition of Negligence 296 
 
 Negligent Driving id. 
 
 Where killing a Person is held to be 
 
 Murder id. 
 
 Where killing a Person is held to be 
 
 Manslaughter 297 
 
 Burthen of Proof id. 
 
 Furious Driving id. 
 
 Carriages racing id. 
 
 Driver unable to pull up id. 
 
 Causing Death of Passenger 298 
 
 Defence of Contributory Negli- 
 gence id. 
 
 Where killing a Person is held to be 
 
 Accidental Death id. 
 
 And the Driver is not liable .... 299 
 
 Trotting a Waggon along a Road. id. 
 
 Trotting a Waggon along a Street id. 
 Remarks in East's Pleas of the 
 
 Crown id. 
 
 Where Streets are unusually 
 
 crowded id. 
 
 Where Driver is indictable under 
 
 24 & 25 Vict. c. 100, s. 35 300 
 
 Furious Drivinginthe Metropolitan 
 
 Police District id. 
 
 Power of Police Constables id. 
 
 Conviction no Bar to Action of 
 
 Trespass id. 
 
 Where Party injured by negligent 
 
 Driver may maintain an Action . id. 
 Duty of Drivers of public and 
 
 private Vehicles id. 
 
 Action lies for Negligence in the 
 
 care of vicious Horses, «S:c 301 
 
 Where another Person strikes a 
 
 Horse id. 
 
 Damages recovered in Trespass .... id. 
 
 Driving furiously round a Corner . id. 
 .Mail Cart rapidly entering Post 
 
 Office Yard id. 
 
 Negligent Deivino — eontimied. page 
 
 Frightening a Horse by a Fire- 
 
 basket 301 
 
 By Van left on Roadside 302 
 
 Judgment in Harris v. Mobhs . , 303 
 By blowing off Steam 305 
 
 Rules as to civil Liability id. 
 
 Negligence on one Side only id. 
 
 Passenger thrown from an Omnibus 306 
 
 Horse and Cart left standing in the 
 Street id. 
 
 Damage from Tackle breaking. . . . 307 
 Or from Defect in the Carriage . id. 
 
 Negligence on both Sides id. 
 
 Where the Negligence of the in- 
 jured Party did not contribute to 
 the Accident 308 
 
 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 on the 
 
 Pai-t of the Plaintiff 309 
 
 On the Part of the Defendant . . id. 
 
 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 Sti-cet. . 310 
 
 Judgment of the Court of Queen's 
 Bench id. 
 
 Where no Negligence on the Part 
 of the Defendant 314 
 
 Law deducible from these Cases . . id. 
 
 Abbott V. Macjie id. 
 
 A Heap left on a Highway 315 
 
 Opportimity of seeing the Obstruc- 
 tion id. 
 
 Running over Stones at Night .... id. 
 
 Leaving the Highway id. 
 
XXIV 
 
 TABLE OF CONTENTS. 
 
 Negligent Driving — continued. 
 
 Excavation a public Nuisance .... 31G 
 
 Trespasser may maintain an Action id. 
 
 True Test of legal Liability id. 
 
 Owners of private "Ways may be 
 liable for Negligence id. 
 
 Even where Injury caused by in- 
 tervening act of third Party .... 317 
 
 Liability of a Contractor id. 
 
 Where there are several "ways of 
 doing a Thing 318 
 
 Liability of an Employer id. 
 
 What is the Question in such Cases id. 
 
 Drain repaired by an ordinary but 
 skilful Labourer id. 
 
 Stones left by a SixU- Contractor .. 319 
 
 Statutory Duty — Surveyor of High- 
 ways id. 
 
 Peformance of anordinaryDomestic 
 Duty id. 
 
 Manure left on a Road 320 
 
 With regard to Works executed 
 under Local Acts , id. 
 
 Both Parties to hlamc id. 
 
 Identification of Child with Person 
 in charg-e of it 321 
 
 Identification of Passenger with 
 Driver id. 
 
 Remarks in Smith's Leading Cases id. 
 
 Power of Selection 322 
 
 Altogether an Acridod id. 
 
 Running over a Person at Night . . id. 
 
 Where it is the Result of the sudden 
 Fright of the Plorse 323 
 
 Hammack v. White id. 
 
 Manzoni v. Douglas 324 
 
 Horse running away id. 
 
 Qualification of Ride 325 
 
 Proof of Negligence must be 
 affimiative id. 
 
 Where Evidence is equally con- 
 sistent with Negligence and no 
 Negligence 326 
 
 Where a Horse straying in a High- 
 way kicked a Child 327 
 
 Horse kicldug at Sale id. 
 
 Accident itself sometimes affirma- 
 tive Proof of Negligence id. 
 
 Evidence identical with that re- 
 quii-ed for Manslaughter 328 
 
 As to Demand of Particulars in 
 Actions for Negligent Driving. . id. 
 
 Rule of the Road. 
 
 Right Side of the Road 328 
 
 Driving on the wrong Side in the 
 
 Dark id. 
 
 Seeing a Person coming on his 
 
 wrong Side id. 
 
 Does not justify a wanton Injury 329 
 
 Rtjle of the Road — continued. page 
 
 Rule of the Road not inflexible . . 329 
 
 Light Load meeting Heavy id. 
 
 Parties meeting on a sudden id. 
 
 Rule of the Road applies to Saddle 
 
 Horses 330 
 
 Ordinary Vehicles meeting Street 
 
 or Tram Cars id. 
 
 Foot Passengers id. 
 
 Rule of the Road does not apply . . 331 
 
 Going" over a Crossing id. 
 
 Nuisance on Public Highway .... id. 
 
 Horse and Carriage before Trades- 
 man's Door id. 
 
 Negligent Deiving by a Servant. 
 
 When the Master was liable ac- 
 cording to former Decisions .... 33 
 
 Liability now more extensive .... 332 
 
 Liinpus V. General Omnibus Co id. 
 
 Acts done within Employment and 
 
 for Master's Interest id. 
 
 If Servant vindictively strikes Horse 
 
 with his Whip 333 
 
 Instructions of Master, if disre- 
 garded, immaterial , id. 
 
 Master liable, if Acts are done for 
 
 his Benefit id. 
 
 Unless done out of the Course of 
 
 the Servant's Emploj^ment . . 33i 
 
 Liability of Cab Proprietor id. 
 
 Master and Servant driving together 335 
 
 Servant entrusting the Reins to a 
 
 Stranger id. 
 
 Servant striking the Horse of ano- 
 ther 336 
 
 Servant striking Passenger id. 
 
 Guard of Omnibus using undue 
 
 Violence to Passenger id. 
 
 Servant removing an Obstruction . . 337 
 
 Servant acting improperly id. 
 
 Making a Detoiu- for his own Pur- 
 poses id. 
 
 Servant acting contrary to his Trust 338 
 
 Taking his Master's Horse without 
 
 Leave id. 
 
 Re-enteriDg on Duty 339 
 
 Taking the Hoi'se of another id. 
 
 No express Authority of Master 
 
 necessary 340 
 
 Question for the Jury id. 
 
 Master's Name on the Cart id. 
 
 Giving an Address id. 
 
 Action for bodily Hurt id. 
 
 Liabihty of Master and Servant 
 
 respectively 311 
 
 Negligence of Fellow -Servant .... id. 
 
 Master bound to use due Care in 
 
 Selection of Servants id. 
 
 Liability of Cab Proprietor to Driver id. 
 
TABLE OF CONTENTS. 
 
 XXV 
 
 rAGE 
 Negligent Deiying by a Servant — con. 
 
 Action by Representatives of a Per- 
 son killecl 342 
 
 By Persons beneficially interested . id. 
 
 Construction to be put upon the 
 Condition in 9 & 10 Vict. c. 93. . id. 
 
 Plan of the Locality 343 
 
 Conviction for furious Driving a Bar 
 to subsequent Action id. 
 
 Damages 344 
 
 Responsibility for ' ' all possible 
 Consequences " id. 
 
 PAGE 
 
 Negligent Driving by a Servant — con. 
 
 Damage too Remote ', . 344 
 
 Inj ury done to a Carriage 345 
 
 Measure-of Damages where a Horse 
 has been injured id. 
 
 Damages where a Person has been 
 killed id. 
 
 How limited id. 
 
 Cannot be given for Funeral Ex- 
 penses 316 
 
 Damages not given to a Class, but 
 to Individuals id. 
 
 CHAPTEE II. 
 
 FEROCIOUS A^^D VICIOUS ANIMALS. 
 
 Wild and Tame Animals 347 
 
 As to Animals Fcra Naturcc only, 
 
 Scienter unnecessary 348 
 
 What ought to be the Liability of the 
 
 Person keeping them id. 
 
 The Athenian and Roman Laws .... id. 
 
 The French Code 319 
 
 Argument in Mason v. Keeling id. 
 
 Decision in Scotland id. 
 
 Reversed in House of Lords id. 
 
 In England a Scienter is held neces- 
 sary 350 
 
 Where a Dog bites a Person id. 
 
 Kot enough to show that the Dog 
 
 was of a fierce Disposition id. 
 
 Report that Dog had been bitten by 
 
 a Mad Dog id. 
 
 Where Dog had bitten a Child id. 
 
 Not necessarj' to show that Dog has 
 
 bitten another Man 351 
 
 Stray Dog on Defendant's premises .. id. 
 
 Evidence of Scienter id. 
 
 Damage done by Dog to Game, 
 
 ground of Action id. 
 
 Horse frightened by Dogs, and there- 
 by damaged id. 
 
 WTiere a Dog worries Sheep 352 
 
 Dictimi of Mr. Justice Maule id. 
 
 E\adence of mischievous Propensity 
 unnecessary under 28 & 2yVict. c. 60 352 
 
 ' ' Cattle ' ' includes Horses and Mares id. 
 
 Proof of Ownership id. 
 
 Scienter maybe proved against a Cor- 
 poration id. 
 
 The Dogs Act, 1871 ...'. 353 
 
 Where a Horse bit some other Horses 354 
 
 Breaking Horses in a Public Place . . id. 
 
 Where a Mad Bull wounds a Person . id. 
 
 Where a Bull singled out a Person 
 wearing Red id. 
 
 Where a Ram injured a Person .... id. 
 
 Where a vicious Beast kills a Person . id. 
 
 Owner bound to secure a vicious 
 Anmial at all events 355 
 
 He is liable to an Action for Damage id. 
 
 The Grist of the Action id. 
 
 Not necessary to prove Negligence . . id. 
 
 An unruly Horse escaping from a 
 Stable id. 
 
 Turning a dangerous Animal loose, 
 Manslaughter id. 
 
 Turning a vicious Horse out on a 
 Common id. 
 
 Injury occasioned by a vicious Bull. . id. 
 
 Shooting a Dog for worrying Sheep . id. 
 
 Shooting a Dog for worrying Fowls . 356 
 
 CHAPTEE III. 
 
 THE LIABILITIES OF PARTIES IIUKTIXG OR TRESPASSING UPON THE LANDS OF 
 
 ANOTHER. 
 
 Fresh Pursuit over another's Land . . 357 
 
 Pursuing Vermin id. 
 
 No unnecessary Damage 358 
 
 Digging for a Fox, &c id. 
 
 Hunting for Amusement 3.58 
 
 Earl of Esse.T v. Capel id. 
 
 Huntsman liable for Damage done by 
 the Field 359 
 
XXVI 
 
 TABLE OF CONTENTS. 
 
 PAGE 
 
 Master of Hounds, when responsible 
 
 for the Field 359 
 
 Hunting a Hare on another's Land. . 360 
 
 Taking a Stag on another's Land . . id. 
 
 Hunting a stray Deer id. 
 
 Dead Game Property of Owner .... id. 
 
 He has a Right to have his Game 
 
 imdistiirbed id. 
 
 Cattlegate Owners have not the Eight 
 
 of Shooting id. 
 
 Reservation of flights of Lords of 
 
 Manors under Enclosure Acts .... id. 
 Who may kill Hares without a Game 
 
 Certificate 361 
 
 Ground Game Act, 1880 id. 
 
 Anjr person may hiuit Hares id. 
 
 Continued Ti'cspass id. 
 
 Two Persons engaged in a common 
 
 Purpose 362 
 
 Trespass in Search of Game id. 
 
 Hunting with Hounds or Greyhounds id. 
 
 Jurisdiction of Justices ousted id. 
 
 Persons em^^loycd to kiU Rabbits by 
 
 Tenant 363 
 
 PAGE 
 
 Trespass from the Highway 363 
 
 From his own Land to pick up 
 
 Game id. 
 
 Under 25 & 26 Vict. 0. 114 id. 
 
 Laying Hands on a Trespasser id. 
 
 Opposing Force to Force 364 
 
 Defence to an Action id. 
 
 Horse with a Rider cannot be dis- 
 trained id. 
 
 Action of Trespass lies for riding over 
 
 Land id. 
 
 But not where a Dog jimips into a 
 Field id. 
 
 Notice imder 3 & 4 WiU. 4, c. 24, s. 3 id. 
 
 Notice transmitted by Post id. 
 
 Maintenance of Fences 365 
 
 Gate of a Field left open id. 
 
 Gate of a Railway Crossing left open 
 where there is a statutable Obhga- 
 tion id. 
 
 Gate of Station left open where there 
 is no statutable Obligation 366 
 
 Fence within Station Yard 367 
 
 PART III. 
 
 RACING, WAGERS, AND GAMING. 
 CHAPTER I. 
 
 THEIR HISTORY, RISE, AXD PROGRESS IN THIS COUNTRY. 
 
 PAGE 
 
 The Time of the Pharaohs 368 
 
 Horses used mostly for Warlike Piu-- 
 
 poses in Early Times id. 
 
 The Time of Julius Caesar 369 
 
 Reign of Athelstan id. 
 
 Reign of William the Conqueror .... id. 
 
 Reign of Henry the First id. 
 
 Reign of Henry the Second id. 
 
 Reign of Richard the First 370 
 
 Reign of John id. 
 
 Reign of Edward the Second id. 
 
 Reign of Edward the Thii-d id. 
 
 Reign of Richard the Second id. 
 
 Reign of Henry the Fourth id. 
 
 Reign of Henry the Seventh id. 
 
 Reign of Henry the Eighth 371 
 
 Reign of Edward the Sixth 374 
 
 PAGE 
 
 Reign of Philip and Mary 374 
 
 Reign of Queen Elizabeth id. 
 
 Reign of James the Fii-st 375 
 
 Reign of Charles the First 376 
 
 Reign of Charles the Second id. 
 
 Reign of William the Thii-d 377 
 
 Reign of Queen Anne id. 
 
 Reign of George the First 378 
 
 Reign of George the Second 379 
 
 Reign of George the Third 381 
 
 Reign of George the Fourth id. 
 
 Reign of William the Fourth 382 
 
 Reign of Queen Victoria id. 
 
 Repeal of Duty on Racehorses . . 385 
 
 16 & 17 Vict. c. 119 386 
 
 37 & 38 Vict. c. 15 id. 
 
 Racecourses Licensing Act, 1879 . 387 
 
TABLE OF CONTENTS. 
 
 XXYll 
 
 CHAPTEE II. 
 
 RACING, STAKEHOLDERS, AND STEWARDS. 
 
 Eacing. page 
 
 The Law as to Racing 389 
 
 Eights of Part-owners id. 
 
 Custom to Eace id. 
 
 To resort to Eaces td. 
 
 But though a good Custom, not an 
 Easement within the Prescription 
 Act 390 
 
 Stakeholdees. 
 
 Sweepstakes 390 
 
 Matches id. 
 
 The Act for the Suppression of 
 Betting Houses id. 
 
 Entry for a Eace 391 
 
 Eace not to be run within a Year . . id. 
 
 ' ' Scratching ' ' a Eace Horse .... id. 
 
 Clerk of the Course usually Stake- 
 holder 392 
 
 Has no Eight to the Stakes id. 
 
 Ground of Action against Stake- 
 holder id. 
 
 Position of Stakeholder towards the 
 Parties, if the Eace is not to be, 
 or cannot be, run id. 
 
 Cannot set off an unpaid Stake . . 393 
 
 Where he may cash a Cheque .... id. 
 
 Stake must abide the Event of a 
 legal Contract id. 
 
 A Foot Eace id. 
 
 Batty V. Marriott oven-uled by 
 Diggle v. Higgs 394 
 
 Jiidgment of Lord Cairns, L. C. . . id. 
 
 Eecovery of Money paid on an 
 
 illegal Contract 396 
 
 What the Party should do id. 
 
 Demand before the Money is paid 
 over id. 
 
 Bringing an Action not sufficient .. 397 
 
 Where the Money is paid over with- 
 out Dispute id. 
 
 Where a Horse is disqualified .... id. 
 
 Where Owner knows the Disquali- 
 fication 398 
 
 Proper Party to receive the Stakes id. 
 
 Under what Circumstances Winner 
 may maintain an Action id. 
 
 A Cricket Match 399 
 
 A Wrestlina: Match id. 
 
 Stakeholders — continued. page 
 
 A Dog Fight 399 
 
 Loser may recover his Stake where 
 
 there has been Fraud id. 
 
 How he may waive his Claim .... 400 
 Where a Stakeholder may recover 
 
 from the Winner id. 
 
 Money in the hands of a Stake- 
 holder does not pass as ' ' his 
 Moneys' ' under D epositor ' s Will . id. 
 
 Stewards. 
 
 Their Duties 401 
 
 Disputes to be settled by them .... id. 
 
 Award should be made by all .... id. 
 
 Custody of the Stakes in the mean- 
 time 402 
 
 Legal Position of Stewards id. 
 
 Decision not necessarily invalidated 
 by one of them being interested id. 
 
 Decision of two out of three Stew- 
 ards held binding id. 
 
 Stewards differ from legal Arbitra- 
 tors 403 
 
 Judge's Powers do not accrue if 
 Eace is invalid id. 
 
 Steward's Decision maintained by 
 the Court of Exchequer id. 
 
 Keiccomen v. Lynch 404 
 
 Provisional Decision id. 
 
 Appointment of a Judge 405 
 
 Negligence in not appointing one . . 406 
 
 Decision of the Umpire or Com- 
 mittee id. 
 
 When Jurisdiction has not attached id. 
 
 Terms of a Eace 408 
 
 Eules of a Eegatta id. 
 
 Stewards, &c. cannot waive any 
 Condition of a Eace 409 
 
 Eules of the Jockey Club 410 
 
 Arbitration of the Jockey Club . . id. 
 
 Sj)orting Phraseology id. 
 
 A " Selling" Eace 411 
 
 A professional Jockey id. 
 
 Horse regularly hunted with 
 Hounds id. 
 
 Match for a particular Meeting . , id. 
 
 Ordering off the Grand Stand .... 412 
 
 Ordering Goods 413 
 
xxvm 
 
 TABLE OF CONTENTS. 
 
 CHAPTER III. 
 
 WAGERS. 
 
 PAGE 
 
 Wagers at Common Law 411 
 
 Wager on the Life of Napoleon .... 415 
 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 416 
 
 What is a Wagering Contract 417 
 
 Money advanced with Stipulation . . id. 
 Price of Mare to be increased, if she 
 
 won, by her Winnings 418 
 
 Billiard Match id. 
 
 Rotundity of Earth id. 
 
 Trotting against Time id. 
 
 Agreement with Tipster id. 
 
 Walking Match 419 
 
 Contribution to Person nominating 
 
 the Winner not within Proviso .... id. 
 Second Horse may receive Part of the 
 
 Stakes within the Proviso 420 
 
 Effect of Wagers being void on Note 
 
 given in Payment id. 
 
 Wagering Contracts by Brokers void 
 
 biit not illegal 421 
 
 Contracts may be illegal, which are 
 
 not void id. 
 
 Money paid on void Contract id. 
 
 PAGE 
 
 Decision in Equity 422 
 
 Money paid on illegal Game not re- 
 
 co\'erable id. 
 
 The Act for the Suppression of Betting 
 
 Houses id. 
 
 The Stock Jobbing Act 423 
 
 Gaming on the Stock Exchange .... id. 
 
 As in a Time Bargain id. 
 
 Question to be left to the Jury id. 
 
 Statute only affects Contract which 
 
 makes Wager id. 
 
 Statute against Wagering Policies . . 424 
 
 What held to be such a Policy id. 
 
 Wager as to a Declaration of War . . id. 
 
 What was held not to be such a 
 
 Policy id. 
 
 Paying a Bet 425 
 
 Giving a Security id. 
 
 Where a Note or Bill is a Gift id. 
 
 Taking a stolen Bank Note in Pay- 
 ment 426 
 
 Taking a stopped Note in Payment . . id. 
 
 What invalidates the Holder's Right id. 
 
 Mala Jides must be distinctly proved . . id. 
 
 Money borrowed to pay Bets 427 
 
 A Betting Agent id. 
 
 A Betting Partner id. 
 
 Cheating Wager 428 
 
 CHAPTER IV. 
 
 GAMING. 
 
 Gaming not unlawful 
 
 Where a London Apprentice " fre- 
 quents ' ' Gaming 
 
 Where a Clergyman plays at un- 
 lawful 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 
 
 429 
 430 
 
 id. 
 
 id. 
 
 id. 
 
 id. 
 431 
 
 id. 
 
 id. 
 432 
 
 id. 
 
 id. 
 
 id. 
 
 id. 
 
 433 
 
 English Law as to Games 433 
 
 The word Game id. 
 
 Lawful Games, &c id. 
 
 La-«-ful Gaming or Play 434 
 
 " Game " under the Highway Act id. 
 
 Unlawful Games id. 
 
 Lotteries 435 
 
 Lotteries declared Nuisances id. 
 
 Penalty for keeping a Lottery .... id. 
 
 Penalty for drawing at a Lottery . id. 
 
 Littlegoes declared Nuisances .... id. 
 Penalty for keeping a Place for a 
 
 Lottery or Littlego id. 
 
 Penalty for suffering any Lottery 
 
 to be drawn 436 
 
 Justices have Summary Jurisdiction id. 
 5 Geo. 4, c. 83, s. 4, " Instnunents 
 
 of Gaming " id. 
 
TABLE OF CONTENTS. 
 
 XXIX 
 
 PAGE 
 
 36 & 37 Vict. c. 38, s. 3 430 
 
 Racing- Sweeps . . . .■ 437 
 
 Sale of Property by Lot id. 
 
 Attempt to evade the Law 438 
 
 Art Unions id. 
 
 A Lottery of Houses id. 
 
 Ballot in Land Societies 439 
 
 Allotment or Partition by Lots . . id. 
 
 Choice of Allotments id. 
 
 The Conservative Land Society . . id. 
 
 Periodical Drawings 440 
 
 Repayment of Money id. 
 
 Cock-fig-hting', Bull-baiting, &c. . . id. 
 Keeper of a Place for this purpose id. 
 
 Within the Metropolitan District 441 
 
 Gaming in a Public House id. 
 
 Where Money is staked id. 
 
 Where Money is not staked 442 
 
 Money lent for Gaming id. 
 
 Money lent for the Stakes of a Prize 
 
 Fight id. 
 
 PAGE 
 
 Test where the Transaction is illegal 442 
 
 Securities for Money lent for 
 
 Gaming 443 
 
 Action on a Promissory Note , , . . id. 
 
 Identification of Promissory Note . id. 
 
 An I U id. 
 
 Money lost at Play id. 
 
 Secimties for Money so lost 444 
 
 General Effect of 5 & G Will. 4, c. 4 1 id. 
 
 Action against Acceptor of Bill of 
 
 Exchange 446 
 
 Action by Acceptor of Bill of Ex- 
 change 447 
 
 Recovery of Principal and Interest id. 
 
 Evidence of Owner of a Gaming 
 
 House id. 
 
 Summons to set aside a Warrant of 
 
 Attorney id. 
 
 A Fost Obit Security held good .... id. 
 
 Deed substituted for one tainted 
 
 with Illegality id. 
 
 CI 
 
 BETTIXG HOUS 
 
 Betting Houses. 
 
 A Common Betting House 
 
 Act for the Suppression of Betting 
 
 Houses 
 
 ' ' Using ' ' under this Act 
 
 " Place " within this Act 
 
 Moveable Desk 
 
 lAP 
 
 3ES A 
 
 448 
 
 449 
 
 id. 
 
 id. 
 450 
 
 id. 
 
 id. 
 451 
 
 id. 
 452 
 
 id. 
 
 453 
 
 id. 
 
 id. 
 
 id. 
 id. 
 
 454 
 id. 
 455 
 
 id. 
 id. 
 
 id. 
 
 id. 
 
 456 
 
 id. 
 
 PEE y. 
 
 YD GAMING HOUSES. 
 
 Gaming Houses. 
 
 A Common Gaming House 
 
 Indictment for keeping one 
 
 Charge in the Indictment 
 
 Any Person may go on with it ... . 
 Statutory Provisions for an In- 
 dictment 
 
 456 
 457 
 
 id. 
 
 id. 
 
 id 
 
 Cricket Ground 
 
 Notice by two Inhabitants 
 
 Binding over the Party accused . . 
 Duty of Overseers of the Poor .... 
 Penalty where Constable neglects 
 
 his Duty 
 
 Setting up or playing at Hazard, 
 
 &c 
 
 id 
 
 Pigeon Shooting 
 
 id 
 
 Race Course, Umbrella 
 
 Moveable Box within Ring . , 
 
 Betting at a Club 
 
 Purposes for which Houses or 
 Places are not to be used 
 
 458 
 id. 
 
 id 
 
 Penalty for using them for such 
 Pur[30ses 
 
 Evidence that Hazard has been 
 played 
 
 id 
 
 Penalty for receiving Money, &c. 
 on certain Conditions 
 
 Rent of a Gaming House 
 
 A Subscription Club 
 
 What is a Common Gaming House 
 
 under 8 & 9 Vict. c. 109 
 
 Power of Justices 
 
 id. 
 id 
 
 Money, &c. so received may be re- 
 covered from the Plolder 
 
 Act does not extend to Stakes in a 
 
 459 
 
 id 
 
 Race, &c 
 
 In the Metropolitan PoKce Dis- 
 trict 
 
 
 Penalty for advertising, &c 
 
 Pro\-isions of Betting Act, 1874, as 
 
 to adveriising 
 
 Power to search susj^ected Houses 
 Power of Commissioners of Police . 
 
 460 
 
 Penalties on Gaming House Keepers 
 
 under 8 & 9 Vict. c. 109 
 
 Penalty for Playing 
 
 id. 
 461 
 
 Evidence of Gaming 
 
 id 
 
 The Levy and Application of 
 Penalties 
 
 Difficulty of obtaining Evidence . . 
 17 & 18 Vict. c. 38 
 
 id. 
 id 
 
 Where Party neglects to prosecute 
 No Objection allowed on Matter of 
 
 Form 
 
 No Appeal from High Court .... 
 
 The remaining Provisions 
 
 Extension to Scotland 
 
 Persons summarily convicted of 
 obstructing Officers 
 
 Persons giving false Names or 
 Addresses 
 
 id. 
 46'' 
 
 Owner or Occupier may be fined 
 500/., or imprisoned 
 
 id. 
 
XXX 
 
 TABLE OF CONTENTS. 
 
 Gaming HotrsES — continued. page 
 
 Persons apprehended may be made 
 
 Witnesses 462 
 
 Penalties and Costs id. 
 
 On neglect to proseciite, another 
 
 Person may be authorized to do so 463 
 
 Remaining Provisions id. 
 
 Billiards, Bagatelle, &c id. 
 
 Gaming Houses — cont'mued. page 
 
 Regulations regarding Billiard Li- 
 cences 463 
 
 Non-compliance with these Regu- 
 lations id. 
 
 Offences against the Tenor of the 
 Licence 464 
 
 When Billiard playingisnot allowed id. 
 
 Constables may visit licensed Houses id. 
 
 APPENDIX. 
 
 PAET I. 
 UNREPOHTED CASES. 
 
 Pettingall v. Pettingall. — Annuity be- 
 queathed to keep a Favourite Mare 465 
 Alexander and Another r. Laidley 
 and Others. — Rule of the Road . . 467 
 
 Simpson v. Potts. — Sidebones id. 
 
 Hall V. Roger son. — Laminitis 468 
 
 Regina r. Cook. — Furioiis Riding .. 471 
 Matthews v. Parker. — Navicular Dis- 
 ease id. 
 
 Atkinson v. Horridge. — Thick-wind . 472 
 Croekford v. Lord Maidstone. — A 
 Common Gaming House 473 
 
 PAGE 
 
 Smart v . Allison . — Alteration of Struc - 
 ture in the Feet 474 
 
 Hyde v. Davis. — Disease of the 
 Lungs 477 
 
 Buckingham v. Rogers. — Disease of 
 the Lungs 479 
 
 Elvin V. Chapman. — Negligent Driv- 
 ing in the Dark id. 
 
 Bowden v. Sherman. — Negligent 
 Driving at a Crossing 480 
 
 Hadland r. Price.— A "SelUngRace" 481 
 
 Percivali'. Dudgeon. — Horse damaged 
 by Negligent Driving 483 
 
 PAET II. 
 STATUTES. 
 
 33 Henry 8, c. 9 484 
 
 2 & 3 Philip & Mary, c. 7 486 
 
 31 Eliz., c. 12 
 
 2 Geo. 2, c. 28 
 
 12 Geo. 2, c. 28 
 
 13 Geo. 2, c. 19 
 
 18 Geo. 2, c. 34 
 
 5 Geo. 4, c. 83 
 
 3 & 4 Will. 4, c. 42 
 
 5 & 6 Will. 4, c. 41 
 
 488 
 491 
 492 
 497 
 498 
 501 
 502 
 504 
 
 508 
 
 520 
 
 521 
 
 530 
 
 531 
 
 537 
 
 539 
 
 26 & 27 Vict. c. 41 544 
 
 42 & 43 Vict. c. 18 540 
 
 8 & 9 Vict. c. 109 . 
 
 9 & 10 Vict. c. 48 . 
 16 & 17 Vict. c. 33 . 
 16 & 17 Vict. c. 127 
 
 16 & 17 Vict. c. 119 
 37 Vict. c. 15 
 
 17 & 18 Vict. c. 38 . 
 
 PAET III. 
 MISCELLANEOUS. 
 
 Queen's Plate Articles 548 
 
 The Rides of Racing 551 
 
 Rules of the Jockey Club 572 
 
 Post Horses 578 
 
 Slaughtering Horses 
 
 Conditions of Sale at Aldridge's . 
 Conditions of Sale at Tattersall's. 
 
 579 
 id. 
 581 
 
 INDEX .■ 583 
 
TABLE OF CASES. 
 
 A. 
 
 PAGE 
 
 Abbot v. Macfie, 33 L. J., Ex. 177 . . 314 
 Abbott v. Freeman, 35 L. T., N. S. 
 
 783— C. A 327 
 
 Acebal v. Levy, 10 Bing. 378 27 
 
 Adam V.Richards, 2 H. Bla. 573. . 168, 178 
 Adams v. Grave, 1 Cr. & M. 380 ... . 42 
 
 r. Masters, 24 L. T., N. S. 502 . . 363 
 
 Addison v. Gandaseqiii, 4Taunt. 574 . . 126 
 Ainsley v. Brown, N. P. 1845 .... 74, 101 
 Aldi'idge v. Great Western Rail. Co., 
 
 33 L. J., C. P. 161 .... 281 
 
 V. Johnson, 26 L. J., Q. B. 
 
 296 14 
 
 Alebury r. Walby, 1 Stra. 231 183 
 
 Alexander v. Gibson, 2 Camp. 555 . . 52, 
 
 129, 190 
 
 V. Laidley, Appendix .... 328 
 
 Allday v. Great Western Rail. Co., 
 
 34 L. J., Q. B. 5 276, 277 
 
 Allen V. Bennett, 3 Taunt. 169 26 
 
 V. Denstone, 8 C. & P. 760 .... 130 
 
 V. Hearn, 1 T. R. 56 415, 424 
 
 i;. Lake, 18 Q. B. 560 116 
 
 V. Pink, 4 M. & W. 140 .... 17, 189 
 
 V. Sharpe, 2 Ex. 352 38, 39 
 
 — V. Smith,9Jur.,N.S. 230, 1284.. 224 
 AUport V. Nutt, 1 C. B. 889 . . . .435, 437 
 Andrewsi;.Belfield,2C.B.,N.S.779.. 29,170 
 
 Anon., 3 Salk. 157 3 
 
 Anthony v. Halstead, 37 L. T., N. S. 
 
 433 119, 122, 142 
 
 Applebee v. Percy, L. R., 9 C. P. 647 ; 
 
 43 L. J., C. P. 365; 30 L. T., N. S. 
 
 785; 22 W. R. 704 351 
 
 Applebyv.Johnson,L.R.,9C.P. 158. . 23 
 Applegarth v. CoUey, 10 M. & W. 
 
 728 376, 383, 44 5 
 
 Arboin v. Anderson, 1 Q. B. 498 .... 426 
 Arbon v. Eussell, 3 F. & F. 152 .... 251 
 
 Archer v. Baynes, 5 Ex. 629 202 
 
 Amiisteadr. White, 20 L. J., Q. B. 524 . . 219 
 Armstrong v. Stokes, L. R., 7 Q. B. 
 
 598 ; 41 L. J., Q. B. 253; 26 L. T., 
 
 N. S. 872 126 
 
 Armsworth v. South Eastern Rail. 
 
 Co, 11 Jur. 758 346 
 
 Ashby V. White, 1 Sm. L. C. 125 . . 364 
 Ashcroft V. Mon-in, 1 M. & G. 450 . . 19 
 
 PAGE 
 
 Ashendon v. London, Brighton and 
 
 South Coast Rail. Co., L. R., 5 Ex. 
 
 D. 190; 42 L. T., N. S. 586 279 
 
 Ash worth r. Heyworth, L. R., 4 Q. B. 
 
 316; 38 L. J., M. C. 91 57 
 
 Atldnson v. Bell, 8 B. & C. 277 .... 175 
 
 — V. Horridge, Appendix 107 
 
 Atterbury v. Fairmanner, 8 Moore, 
 
 32 80, 191 
 
 Attorney- General v. Hollingworth, 
 
 27 L. J., Ex. 102 447 
 
 Attwoodv.Emery, 26L. J.,C.P. 73.. 33 
 
 V. Small, 6 C. & F. 232 .... 152 
 
 Austin V. Manchester, Sheffield and 
 
 Lincolnshire Rail. Co., 21 L. J., 
 
 C. P. 179; IOC. B. 454 .... 260, 269 
 
 B. 
 
 Bachv. Owen, 5 T. R. 409. . 17, 175, 177, 
 
 194 
 Baglehole v. Walters, 3 Camp. 156. . 157 
 Bagueley v. Hawley, L. R., 2 C. P. 
 
 625; 36 L. J., C. P. 328 114 
 
 Bailey v. Forrest, 2 C. & K. 131 108 
 
 V. Merrell, 3 Bulst. 95. . 133, 150, 152 
 
 V. Sweeting, 9 W. R. 273 . . 20, 21 
 
 Baird r. Graham, 14 Court of Sess. 
 
 615 (Sco.) 89, 125 
 
 Baker v. Berkley, 3 C. & P. 32 360 
 
 V. Firminger, 28L. J.,Ex. 130.. 184 
 
 Baldey v. Parker, 2 B. & C. 44 7 
 
 Baldway v. Ouster, 1 Ventr. 71 .... 227 
 Baldwin v. Casella, L. R., 7 Ex. 325 ; 
 41 L. J., Ex. 167; 26L. T., 
 N. S. 707; 21W. R. 16 .. 351 
 
 v. Dixon, 1 M. & Rob. 59. . 198 
 
 Balfe v.West, 22 L. J., C. P. 175, 176 . . 124, 
 
 406 
 Bannerman v. White, 10 C. B., N. S. 
 
 844 145 
 
 Bardell v. Spinks, 2 C. & K. 646 151 
 
 Barker v. Pott, 4 H. & N. 759 178 
 
 V. Windle, 6 El & B. 675, 680 . . 144 
 
 Barley v. Walford, 9 Q. B. 197.. 150, 180 
 Barnard r. How, 1 C. & P. 366. .237, 238 
 
 Barnes v. Ward, 9 C. B. 392 316 
 
 Barnet v. Ravenshaw, 21 L. T. 63 . . 447 
 
XX xn 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Barringlon i\ Turner, 3 Lev. 28 360 
 
 Barry v. Croskey, 2 J. ^*c H. 21 . . IhQ, 423 
 Bartholomew v. Freeman, L. E., 3 
 C. P. D. 316 ; 38 L. T., N. S. 8U; 
 
 26 W. K. 743 172 
 
 Bartholomew v. Markwick, 33 L. J., 
 
 C. P. 145 177, 185 
 
 . T. Sherwood, 1 T. K. 573 . . 39 
 
 Bartlett r. Wills, 31 L. J., Q. B. 57. . 161 
 Barwick v. Euo-lisli Joint Stock Bank, 
 
 L. R, 2Ex.'259, 265 125 
 
 Bassett v. Collis, 2 Camp. 552 100 
 
 Bather v. Day, 8 L. T., N. S. 205 . . 221, 223 
 Batson r. Newman, L. E,., 1 C. P. D. 
 
 573 ; 25 W. R. 85 390, 395, 418 
 
 Batty V. Marriott, 5 C. B. 831 . . 390, 394, 
 395, 419, 433, 434, 445 
 Baxendale v. Great Eastern Rail. Co., 
 L. R.,4Q. B.,244; 38L. J.,Q.B. 
 
 137 273 
 
 Bayley v. Gouldsmitli, Peake, 56. . . . 177 
 
 V. Merrell, Cro. EUz. 38 .... 133 
 
 Baylis v. Lawrence, 1 1 Ad. & E. 92G . . 74 
 
 Bayntine v. Sharp, 1 Liitw. 90 354 
 
 Beach v. Parmeter, 23 Penn. St. 196. . 329 
 
 Beal V. White, 12 A. & E. 670 184 
 
 V. Soutli Devon Rail. Co., 5 H. 
 
 &N. 875 260, 276, 278 
 
 Beamon v. Ellice, 4 C. & P. 586 . . 340, 343 
 Beaumont v. Brcngcri, 5 C. B. 301. . 10 
 
 Beck V. Dyson, 4 Camp. 198 350 
 
 Beeston r. Beeston, L. R., 1 Ex. D. 
 13 ; 45 L. J., Ex. 230 ; 33 L. T., 
 
 N. S. 700 ; 24 W. R. 96 427 
 
 Behn t'.Bm-ness, 32 L. J., Q. B. 204. . 143 
 
 V. Kemble, 7 C. B., N. S. 260. . 151 
 
 BeU r. Young, 24 L. J., C. P. 66 . . . . 39 
 Benbow r. Jones, 14 M. & W. 193 . . 404 
 Benliam v. United Guarantee Co., 7 
 
 Ex. 753 138 
 
 Benjamin v. Storr, L. R., 9 C. P. 400; 
 43L. J.,C. P. 162; 30L. T., N. S. 
 
 362; 22 AV. R. 631 316 
 
 Bennett v. Hall, N. P. 1853 423 
 
 i\ Henderson, 2 Stark. 650 . . 185, 
 
 187 
 
 -y.Mellor, 5 T. R. 273 220 
 
 Bentall v. Burn, 3 B. & C. 423 15 
 
 Bentinck v. Connop, 5 Q. B. 693 ... . 301 
 
 Bentley v. Dawes, 9 Ex. 666 175 
 
 Bernasconi 2'. Anderson, M. & M. 183 . . 185 
 Bertelr.Neveux, 39 L.T., N.S. 257. . 21 
 Besozzi V. Harris, 1 F. & F. 92 . . 348, 355 
 Bessant v. Great Western Rail. Co., 
 
 8 C. B., N. S. 308 292 
 
 Best V. Haves, 32 L. J., Ex. 129 .... 42 
 
 V. Osborne, R. & M. 296. .71, 95, 117, 
 
 131 
 Bevan r. Waters, 3 C. & P. 520. .231, 243 
 
 TAGE 
 
 Bew r. Harton, L. R., 3 Q. B. D. 454 ; 
 39 L. T., N. S. 233 ; 26 W. R. 915. . 442 
 
 Bexwell v. Christie, Cowp. 396 49, 50 
 
 Beyer v. Adams, 26 L. J., Ch. 841 . . 422 
 Bianchi «>. Nash, 1 M. & W. 545 .... 177 
 Biddle v. Bond, Q. B., Banc. 1865 . . 42 
 
 Bidmead v. Gale, 4 Burr. 2432 381 
 
 Bigge V. Parkinson, 31 L. J., Ex. 301 . . 123 
 
 Bill V. Bament, 9 M. & AY. 36 25 
 
 Binns v. Pigot, 9 C. & P. 208 225 
 
 Bird V. Boulton, 4 B. & Ad. 443 . . 27, 43 
 
 V. Holbrook, 4 Bing. 628 . . . .312, 313 
 
 V. Sharp,- N. P. 18o3 323 
 
 Birnie r. Mar.shall, 35L.T.,N.S. 373. . 363 
 Biss V. Mountain, 1 M. & Rob. 302 . . 198 
 Bissil V. New Tork Central Railroad 
 
 Co., 25 New York, ^42 265 
 
 Bize T. Dickason, 1 T. R. 285 178 
 
 Black V. Baxendale, 1 Ex. 410 292 
 
 Blackman v. Simmons, 3 C. & P. 138 . . 355 
 Blackmore i\ Bristol and Exeter Rail. 
 
 Co., 27L. J., Q. B. 167 258 
 
 Blades v. Higgs, 9 Jui-., N. S. 1040. . 360, 
 
 364 
 Blake v. Beech, L. R., 1 Ex. D. 320 ; 
 45L. J.,M. C. Ill; 34L.T., 
 
 N. S. 764 455, 456 
 
 V. Beech, L. R., 2 Ex. D. 335 ; 
 
 36 L. T., N. S. 723 456 
 
 V. Midland Rail. Co., 21 L. J., 
 
 Q,. B. 233 345 
 
 V. Thirst, 2 H. & C. 20 . . 316, 318, 319 
 
 Blakemore v. Lancasliire and York- 
 shire Rail. Co., 1 F. & F. 76 291 
 
 Blaxton r. Pye, 1 Wils. 309 378 
 
 Blenkinsop V. Claj'ton, 7 Taunt. 597. . 13, 16 
 
 Bliss V. Snow, N. P. 1853 196 
 
 Blofield V. Payne, 4 B. & Ad. 410 . . 145 
 Blower r. Great Western Rail. Co., L. 
 R., 7 C. P. 655; 41 L. J., C. P. 268; 
 
 27 L. T., N. S. 883 265, 267 
 
 Bloxam v. Sanders, 4 B. & C. 941 . .31, 32 
 Bloxsome f. Williams, 1 Taunt. 135. . 36 
 Blyth V. Bamptou, 3 Bing. 472 29 
 
 V. Biimingham Waterworks Co., 
 
 2 Jur., N. S. 333 296 
 
 Bolden v. Brogden, 2 M. & R. 113 . . 72, 
 
 74, 82, 84 
 Bone V. Ekless, 5 H. & N. 925 . .396, 397 
 Boorman v. Brown, 3 Q. B. 11 ISO 
 
 V. Nash, 9 B. & C. 145, 
 
 152 184, 198, 204 
 
 Booth V. Mister, 7 C. & P. 66 336 
 
 Bordenave v. Gregory, 6 East, 111.. 175, 177 
 Bomes v. Hutchinson, 1 3 W. R. 386 . . 204 
 Bosley v. Davies, L. R., 1 Q. B. D. 
 84; 45 L. J., M. C. 27; 33 L. T., 
 
 N. S. 528; 24 W. R. 140 442 
 
 Boss r. Litton, 5 C. & P. 407 330 
 
TABLE OF CASES. 
 
 XXXUl 
 
 PAGE 
 
 Bostock p. North Staffordshire Rail. 
 
 Co.. 4 E. & B. 798 433 
 
 Boulton V. Coghhin, 1 Bing. N. C. 640 . .446 
 
 Bowdell V. Parsons, 10 East, 359 177 
 
 Bowden r. Sherman, App 301, 331 
 
 Bower v. Peat, L. E., 1 Q. B. D. 321 ; 
 45 L. J., Q. B. 416 ; 35 L. T., N. 
 
 S. 321 318 
 
 Bowes V. Feuwick, L. R., 9 C. P. 339 ; 
 43L. J.,M. C. 107; 30L.T., 
 N. S. 524; 22 W. R. 804 . . 451 
 
 V. Shand, L. R., 2 App. Cas. 
 
 455; 46 L. J., Q. B. 561 116 
 
 Bowyer v. Cook, 4 C. B. 236 364 
 
 Boydell v. Driimmond, 1 1 East, 142 . . 18 
 Bradley v. Bardsley, 14 M. & W. 873 . . 194 
 
 ■ i'. Lee, 14 Allen, 20 211 
 
 Bradshaw's case, cited Cowp. 397 . . 49 
 
 Brady v. Giles, 1 M. & R. 496 257 
 
 V. Oastler, 3 H. & C. 112; 33 
 
 L. J., Ex. 300 205 
 
 V. Todd, 9 C. B., N. S. 604 . . 128, 
 
 131 
 Brayr. Mayne, 1 Cow, 1 ..248, 249, 262 
 Brickhead v. Archbishop of York, 
 
 Hob. 198, 233 183 
 
 Briddon r. Great Northern Rail. Co., 
 
 28 L. J., Ex. 51 269, 290 
 
 Bridge v. Grand Junction Rail. Co., 
 
 3 M. & W. 244 . . 307, 308, 321, 331 
 
 r. Parsons, 32 L. J., M. C. 95. .440 
 
 Briggs V. Baker, N. P. 1845 76 
 
 V. Crick, 5 Esp. 99 198 
 
 Bringloe i\ Morice, 1 Mod. 210 261 
 
 Bristol (Earl of) r. Wilmore, 1 B. & C 
 
 521 160, 161 
 
 Bristow V. Halford, N. P. 1853 .... 18 
 British and American Telegraph Co. 
 V. Colsou, L. R., 6 Ex. 108; 40 L. 
 J., Ex. 97 ; 23 L. T., N. S. 808 . . 23 
 British Empire Shipping Co. v. Somes, 
 
 28 L. J., Q. B. 220 226, 233 
 
 Broadwater v. Blot, Holt's Rep. 547 . . 240, 
 
 241 
 Bjoadwood v. Granara, 10 Ex. 417. . 219, 
 
 223 
 Broennenburgh r. Haycock, Holt's 
 
 Rep. 630 84 
 
 Broomfield r. Smith, 1 M. & W. 542. . 194 
 Brotherton v. Wood, 6 Moore, 34 . . 180 
 Brown r. Arundell, 10 C. B. 54 .... 43 
 
 V. Boonnan, 11 CI. & Fin. 1 . . 247 
 
 V. Elkington, 8 M. & W. 132. . 87, 
 
 96, 107 
 
 r. Giles, 1 C. & P. 119 301 
 
 V. Hare, 27 L. J., Ex. 372 . . 15 
 
 • v. Muller, L. R., 7 Ex. 319 ; 
 
 41 L. J., Ex. 214 ; 27 L. T., N. S. 
 
 272 204 
 
 o. 
 
 Brown v. Overbury, 25 L. J., Ex. 
 
 1G9 392, 393, 401 
 
 r. Turner, 13 C. B.,N. S. 485.. ^63 
 
 Browne v. Frye, cited 2 Camp. 407 . . 182, 
 
 190 
 Brownlow v. Metropolitan Board of 
 
 Works, 2 F. & F. 604 308 
 
 Bryant v. Wardell, 2 Ex. 482 262 
 
 Bubb V. Yelverton, Ker, In re, 24 L. 
 T., N. S. 822 ; 19 W. R. 739. .422, 425, 
 
 427 
 Buchanan?). Parnshaw, 2 T. R. 746. . 46 
 Buckingham v. Reeve, N. P. 1857 . . 122, 
 
 192, 198 
 
 V. Rogers, Appendix .... 94 
 
 Budd V. Fairmanner, 5 C. & P. 78 . . 141, 
 
 142 
 Buddie V. Green, 27 L. J., Ex. 33 . . 28 
 Burgess v. Clements, 4 M. & S. 306. . 217 
 Burnett v. Allen, 4 Jur., N. S. 488 . . 431 
 Burns v. Poulson, L. R,, 8 C. P. 663 ; 
 
 42 L. J., C. P. 302 337 
 
 Burrough v. Skinner, 5 Buit. 2639 . . 392 
 Bushell V. Wheeler, 15 Q. B. 442 . . 9 
 Butler V. Hunter, 7 H. & N. 826 . . 316, 
 
 318, 319 
 Butterfield v. Burroughs, 1 Salk.211. .133 
 
 r. Forrester, 1 1 East, 60 . . 307,^ 
 
 312, 315 
 Buttermere r. Hayes, 5 M. & W. 456 . . 193, 
 
 194 
 Buxton V. North Eastern Rail. Co., 
 L.R.,3Q.B. 549; 37L.J., 
 Q. B. 258; 18 L. T.,N.S. 
 795; 16 W. R. 1194 .... 365 
 
 V. Rust, L. R., 7 Ex. 1 ; 41 
 
 L. J., Ex. 1 ; 25 L. T., N. S. 502, 
 affirmed L. R., 7 Ex. 279 . . 21, 24, 26 
 Byrne r. Boadle, 33 L. J., Ex. 13 . . 328 
 Bywater r. Richardson, 1 A. & E. 
 508 45, 94, 117 
 
 C. 
 
 Caddick r. Skidmore, 27 L. J., Ch. 153 . . 18 
 Calder v. Dobell, L. R., 6 C. P. (Ex. 
 
 Ch.) 486 ; 40 L. J., C. P. 224 .... 126 
 
 Calye's case, 8 Coke, 32 b 214, 221 
 
 Camoys (Lord) r. Scurr, 9 C. & P. 386 . . 261 
 Campbell r. Fleming, 1 A. & E. 40. . 159 
 r. Mersey Docks Co. ,14 C. B., 
 
 N. S. 412 14 
 
 Canham r. Barry, 24 L. J., C. P. 
 
 100 151, 153 
 
 Canne v. Bryan, 3 B. & Aid. 179 427 
 
 Card r. Case, 5 C. B. 627 . . 349, 350, 352 
 Carew's Trusts, In re, 26 Beav. 187. . 51 
 
 Carr v. Jackson, 7 Ex. 382 127 
 
 C 
 
XXXIV 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Carr v. Lancashire andYorkshireEail. 
 
 Co., 7 Ex. 707 ....265, 268, 269 
 
 r. Martinson, 28 L. J., Q. B. 
 
 126 393, 403 
 
 Carter v. Crick, 28 L. J., Ex. 238 . . 116 
 
 ■ V. Tonissant, 2 B. & Aid. 855. . 12 
 
 Cashill r. Wright, 2 Jur., N. S. 
 
 1072 219, 222 
 
 Castle V. Playford, L. R., 7 Ex. 98 . . 30 
 
 ■ r. Sworder, 30 L. J., Ex. 310. . 10 - 
 
 Caswell r. Coare, 1 Taunt. 506.. 171, 172, 
 
 205, 206 
 Cave t: Coleman, 3 M. & E. 2 . . 29, 116, 
 
 139 
 Chadwick r. Burnley, 12 W. R. 1077. .24 
 Challand v. Bray, 1 Dowl., N. S. 783. .382 
 Chalmers, Ex parte, L. R., 8 Ch. App. 
 
 289 32 
 
 ■ V. Harding, 17 L. T., N. S. 
 
 571 121, 110 
 
 Chamberlain, Ex parte, 8 E. & B. 644 . . 403 
 Champion r. Plummer, 1 B. & P., 
 
 N. R. 252 18, 26 
 
 Chandelor v. Lopiis, Cro. Jae. 4 . . 138, 148 
 Chandler v. Broughton, 1 Cr. & M. 
 
 229 254, 257, 335 
 
 Chanter v. Hopkins, 4 M. •& W. 399 . . 114, 
 121, 170, 178, 194 
 'Chapman r. Gwyther, L. R., 1 Q. B. 
 163 ; 35 L. J.,' Q. B. 142 ; 14 L. T., 
 
 N. S. 477 117 
 
 ChapUn r. Hawes, 3 C. & P. 554 .... 330 
 
 r. Rogers, 1 East, 192 13 
 
 Chapman r. Allen, Cro. Car. 271.. 237, 
 
 242, 243 
 Charlewood's case, 1 Leach, 212 .... 250 
 Charlton r. Hill, 5 C. & P. 147 . .392, 393 
 Chase v. Westmore, 5 M. & S. 189 . . 30, 232 
 Cheeseman r. Hart, N. P. 1847. .409, 433 
 Chesterman v. Lamb, 2 A. & E. 129 . . 171, 
 192. 206, 207 
 Cheveley v. Morris, 2 W. Bla. 1300. . 204 
 Chew V. Jones, 10 L. T. 231 ... . 244, 247, 
 
 248 
 Child r. Hearn, L. R., 9 Ex. 176 ; 43 
 
 L. J., Ex. 100 322, 365 
 
 Chinery r. Viall, 29 L. J., Ex. 180 . . 201 
 Chippendale r. Lancashire and York- 
 shire Rail. Co., 21 L. J., Q. B. 22.. 269 
 
 Christie r. Griggs, 2 Camp. 80 245 
 
 Clare v. Maynard, 6 A. & E. 523 .... 206, 
 208, 209, 210 
 Clark r. Chambers, L. R., 3 Q. B. D. 
 327; 47 L. J., Q. B. 427: 38 
 L. T., N. S. 454 ....304, 315, 317 
 
 V. Glasgow Assurance Co., 1 
 
 Macq. H. of L. Cas. 668 .... 204 
 
 r. Rochester and Syracu.so Canal 
 
 Co., 14 New York, 570 205 
 
 PAGE 
 
 Clarke v. Callow, 46 L. J., Q. B. 53 
 
 — C. A 193 
 
 V. Dickson, 27 L. J., Q. B. 
 
 223 159 
 
 V. Gray, 6 East, 564 181, 182 
 
 V.Hague, 29 L. J., Q. B. 147.. 441 
 
 r. Roc, 4 Ir. Com. Law Rep. 7. .240 
 
 ■ • r. Smythies, 2 F. & F. 83 . . . . 54 
 
 Clay r. Wood, 5 Esp. 42 329 
 
 Clayards v. Dethick, 12 Q. B. 439 . . 309 
 
 Clayton v. Lilly, 4 Taunt. 165 427 
 
 V. Jennings, 3 W. Bla. 706 . . 378 
 
 Cleveland v. Spier, 16C.B.,N. S. 399. .318 
 Clinan v. Cooke, 1 Sch. & Lcf. 22 . . 17 
 Clothier v. Webster, 31 L. J., C. P. 
 
 316 320 
 
 Clough r. London and North Western 
 
 Rail. Co., L. R., 7 Ex. 26, 34 ; 41 
 
 L. J., Ex. 17; 25L. T.,N. S. 708.. 159 
 
 Coates V. Hatton, 3 Stark. 61 433 
 
 V. Stephens, 9 M. & Rob 157 . . 70, 
 
 71, 72, 73, 74, 82, 84, 92, 198 
 Cochrane r. Rymill, 40 L. T., N. S. 
 
 744; 27 W.R. 776 40 
 
 Coddington v. Paleago, L. R., 2 Ex. 
 
 193 30 
 
 Coggs r. Bernard, Lord Raym. 915 ; 
 
 1 Sm. L. C. oth ed. 171. .260, 261, 263, 
 
 268 
 Coleman v. Gibson, 1 M. & R. 168. . 14 
 
 c. Riches, 16 C. B. 101.... 125 
 
 Coles r. Trccothick, 9 Vesey, 249 a. . 27 
 Collen V. Gardner, 21 Beav. 543 .... 128 
 
 Collier v. Chaplin, N. P. 1865 300 
 
 Collins' case, Godb. 346 217 
 
 V. Rodway, N. P. 1845 229 
 
 Colquit r. Kirkman, 47 Ga. 555 (1873) . . 237 
 Coltherd v. Puncheon, 2 D. & R. 10. . 122 
 Combe v. London and South AVestern 
 
 Rail. Co., 31 L. T.,N. S. 613.. 268, 287 
 Commerce (Case of the), 3 Rob. Adm. 
 
 Cas. 287 329 
 
 Connor v. Quick, cited 2 W. Bla. 708 . . 415, 
 
 433 
 
 Cook r. Field, 15 Q. B. 475 425 
 
 Coombs V. Bristol and Exeter Rail. 
 
 Co., 27 L. J., Ex. 269, 401 . . 14, 
 32, 284 
 • V. Dibble, L.R., 1 Ex. 248; 35 
 
 L. J.,Ex. 167; 14 L. T., N. S. 415. .418 
 
 Cooper V. Andrews, Hob. 41 5 
 
 ■ V. Barton, 3 Camp. 5, n. . . 247, 248 
 
 z'. Hood, 28L.J.,Ch. 212 21 
 
 r. Neil, 27 W. R. 159 .... 423, 424 
 
 . V. Osborne, 35 L.T.,N. S. 347 . .442 
 
 ■ r. Smith, 15 East, 103 26 
 
 r. Willomatt, 1 C. B. 672 .... 250 
 
 Copley V. Burton, L. R., 5 C. P. 489; 
 
 40L. J.,M. C. 141 216 
 
TABLE OF CASES. 
 
 XXXY 
 
 PAGE 
 
 Coppin V. Craig, 7 Taunt. 243 53 
 
 Corbett t'.Packington, 6 B. & C. 258 . . 240 
 Cormack v. Gillis, cited 7 East, 480 . . 166 
 Comfoot V. Fowke, 6 M. & W. 358, 
 
 381 125, 131 
 
 Cornman v. East. Counties Rail. Co., 
 
 4H. &N. 781 326 
 
 Cornwellf. Sandars, 3 B. & S. 206.. 362, 
 
 363 
 Cort V. Ambergate Rail. Co., 20 L. J., 
 
 Q. B. 465 181 
 
 Cotteril r. Tui-ley, 8 C. & P. 693 . . 307, 
 
 331 
 Cotton r. Thurland, 5 T. R. 408 .... 432 
 
 v. Wood, 8 C. B., N. S. 568 . . 325, 
 
 326, 331 
 Coulbert v. Troke, L. R., 1 Q. B.D.I; 
 
 45L. J.,M. C. 7 216 
 
 Couston V. Chapman, L. R., 2 H. L. 
 
 ' (Sc. C.) 250 164 
 
 Coventry v. McEniry, 13 Ir. Com. 
 
 Law Rep. 160 13 
 
 • (Earl of) V. Willes, 9 L. T., 
 
 N". S. 384 389 
 
 Cowper V. Andrews, Hob. 41 30 
 
 Cox r. Burbridge, 13 C. B., N. S. 
 
 430 327, 350, 352 
 
 /•. Walker, cited 6 A. & E. 523 . . 206, 
 
 208, 209 
 Coxon V. Great Western Rail. Co., 
 
 29L. J.,Ex. 105; 5H. &lSr. 274.. 286 
 Coyne v. Brady, 9 L. T., N. S. 30 . . . . 441 
 Ci'ane v. London Dock Co., 33 L. J., 
 
 Q. B. 224 56 
 
 Crockford v. Lord Maidstone, Ap- 
 pendix 430, 434, 458, 459 
 
 Croft r. Allison, 5 B. & Aid. 592 .... 336 
 Crofton r. Colgan, 10 Ir. Com. Law 
 
 Rep. 133 418, 420 
 
 Croker v. Walsh, 4 Ir. Jur. 293 .... 443 
 Crosier v. Tomkinson, 2 Ld. Ken. 439 . . 223 
 
 Cross, Ex parte, 17 L. T. 100 32 
 
 V. Andrews, Cro. Eliz. 622 .... 219 
 
 r. Bartlett, 3 M. & B. 542 .... 171 
 
 Crouch V. Great Western Rail. Co., 11 
 
 Ex. 742; 20 L. J., Ex. 418. .264, 
 283 
 
 ■ r. London and IsTorth Western 
 
 Rail. Co., 23 L. J., C. P. 73 264 
 
 Crowder v. Austin, 2 C. & P. 208 . .50, 51 
 Cundy v. Lindsay, L. R., 3 App. Cas. 
 459; 47 L. J., Q.B. 481; 38L.T., 
 
 N. S. 573 56 
 
 Cunliffe r. Harrison, 6 Ex. 903 15 
 
 Currie v. Anderson, 29 L. J., Q. B. 87 . . 15 
 Curtis V. Hannay, 5 Esp. 83 .... 165, 206 
 
 ■ V. Rickards, 1 M. & Gr. 47 ... . 20 
 
 r. Thomas, 33 L. T., N. S. 
 
 664— V. C. H 47 
 
 Curtis V. Williamson, L. R., 10 Q. B. 
 
 57, 59; 44 L. J., Q. B. 27; 31 L. 
 
 T., N. S. 678 126 
 
 Cusack V. Robinson, 30 L. J., Q. B. 
 
 261 7, 8, 15 
 
 D. 
 
 D'Arc V. London and North Western 
 
 Rail. Co., L. R., 9 C. P. 325; 30 
 
 L. T., N. S. 763 276, 281 
 
 Daintree v. Hutchinson, 10 M. & W. 
 
 87 411, 412, 433 
 
 Dale V. Humfrey, El. Bl. & El. 1004. .24 
 
 Dallraan v. King, 5 Scott, 384 169 
 
 Dalton V. South Eastern Rail. Co., 27 
 
 L. J., C. P. 227 343, 340 
 
 Dansey v. Richardson, 3E. & B. 144. .217 
 Danube and Black Sea Rail. Co. r. 
 
 Xenos, 31 L. J.,C. P. 284 33 
 
 Davies v. Mann, 10 M.&W. 546. .309, 331 
 Davis V. Ai-tingstall, 49 L. J., Ch. 
 609 ; 42 L. T., N. S. 507 ; 
 
 29 W. R. 137 41 
 
 V. Garrett, 6 Bing. 716 248 
 
 V. Jones, 25 L. J., C. P. 91 . . 24 
 
 V. Oswell, 7 C. & P. 804 201 
 
 Davy ('. Chamberlayne, 4 Esp. 229. . 254 
 Dawes r. ^Harness, L. R., 10 C. P. 
 
 100 ; 44 L. J., C. P. 194 159 
 
 Dawson t). Chamney, 5Q. B. 165. .221, 222 
 
 V. CoUis, 10 C. B. 523 . . 164, 166, 
 
 168, 170, 195, 197 
 r. Midland Rail. Co., L. R., 
 
 8 Ex. 8 ; 42 L. J., Ex. 49 ; 21 
 
 W. R. 56 365 
 
 Dean v. Branthwaite, 5 Esp. 35 .... 252 
 
 • V. Keate, 3 Camp. 4 249 
 
 • V. Morley, 88 Iowa, 120 85 
 
 Deane v. Clayton, 7 Taunt. 489 312 
 
 De Mattos v. Calcutta Steam Co., 33 
 
 L. J., Q. B. 214 15 
 
 De Schwanberg v. Buchanan, 5 C. & 
 
 P. 343 143 
 
 Dicas V. Hides, 1 Stark. 247 217 
 
 Dickenson r. Follett, 1 M. & Rob. 
 
 299 86, 87, 96 
 
 V. Gapp, cited 1 M. & Scott, 
 
 78 141 
 
 Dickinson r. Naiil, 4 B. & Ad. 638. . 41 
 
 Dickson v. Zizinia, 10 C. B. 602 119 
 
 Diggle V. Higgs, L. R., 2 Ex. D. 
 
 422 ; 46 L. J., Ex. 721 ; 37 L. T., 
 
 N. S. 27 ; 25 W. R. 777— C. A. . .390, 
 391, 397, 399, 419, 425, 433 
 
 Dimes v. Petley, 15 Q. B. 283 331 
 
 Dingle v. Hare, 7 C. B., N. S. 145 . . 171, 
 
 210 
 
 C2 
 
XXXVl 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Dixon V. Birch, L. E., 8 Ex. Ub ; 42 
 L. J., Ex. 135 ; 28 L. T., 
 
 N. S. 36 218 
 
 • V. Yates, 5 B. & Ad. 390 ... . 28 
 
 Dobell V. Stevens, 3 B. & C. 625 .... 149 
 
 Dodwell V. Biirford, 1 Mod. 24 301 
 
 Dot?g-ett V. Catterus, 13 W. R. 390 . .449, 
 
 450 
 Donatty v. Crowder, 11 Moore, 479. . 238 
 Doolan r. Midland Eail. Co., L. R., 
 
 2 App. Cas. 792 ; 34 L. T., N. S. 
 
 317 289 
 
 Dorrington v. Edwards, 2 Rol. 188. . 137 
 Dossett V. Rymill and Gower, 19 L. T. 
 
 339 68 
 
 Drury r. De la Fontaine, 3 B. & C. 232 . . 36 
 Duckworth v. Johnson, 4 H. & N. 653 . . 345 
 Duncan v Cafe, 2 M. & W. 244 ... . 53 
 
 ,,. Topham, 8 C. B. 225 . .23, 33 
 
 Dunlop i\ Higffins, 12 Jur. 295 ; 1 
 
 H. L. C. 381 20, 23 
 
 r. Waugh, Peake, N. P. C. 223 . . 149 
 
 ■ r. Wright, 1 Peake, N. P. C. 
 
 197 141 
 
 Dunniore?'.Taylor, Peake, N.P. C. 56, . 175 
 Dunn V. Crump, 2 B. & B. 300 .... 204 
 Durrell v. Evans, 31 L. J., Ex. 337 . . 17, 27 
 Dyer v. Cowley, 17 L. J., Q. B. 360 . . 17, 
 
 ■ r. Hargrave, 10 Ves. 507 133 
 
 r. Pearson, 3 B. & C. 42 56 
 
 E. 
 
 Eastman's case, 1853 92 
 
 Eastonv.Pratchett, 1 C. M. &R. 798. .425 
 Eastwood v. Bain, 28 L. J., Ex. 74 . . 187 
 r. Miller, L.R.,9 Q. B.440; 
 
 43 L. J., M. C. 139 ; 30 L. T., N. S. 
 
 716; 22 W. R. 799 451 
 
 Eaves v. Dixon, 2 Taunt. 343 .... 88, 191 
 Eden v. Blake, 13 M. .^ W. 614 . . 39, 44 
 
 V. Dudfield, 1 Q. B. 307 15 
 
 ■ V. Parkinson, Doug. 732 a. . 119, 120 
 
 Edgebury v. Rosindale, 2 Lev. 94 . . 377 
 Edwards" r. Hudding, 5 Taunt. 815 . . 52 
 Egertou v. Eurzeman, 1 C. & P. 613 . . 399 
 
 V. Matthews, 6 East, 307 ... . 26 
 
 Eicholz I.'. Bannister, llJur.,]Sr.S.15. . 113, 
 
 114 
 
 EUiott V. Pybus, 10 Bing. 512 184 
 
 V.Thomas, 3 M.&W. 170.. 193, 194 
 
 V. Von Glehn, 18 L. J., Q. B. 
 
 221 1-14 
 
 Ellis V. Chinnock, 7 C. & P. 169 ... . 208 
 
 V. Hopper, 4 Jur., N. S. 1025. . 402 
 
 t'. LoftusIronCo.,L.R.,10C.P. 
 
 10; 44 L. J., C. P. 24; 31 L. T., 
 
 N. S. 483 ; 23 W. R. 246 354 
 
 PAGE 
 
 EUis V. Mortimer, 4 B. & P. 257 ... . 4 
 r. Sheffield Gas Co., 23 L. J., 
 
 Q. B. 42 317, 318 
 
 Elmore v. liingscote, 5 B. & C. 583 . . 1 9 
 
 V. Stone, 1 Taunt. 458 10, 12 
 
 Elphick V. Barnes, L. R., 5 C. P. D. 
 
 387; 49 L.J. , C. P. 698; 29 W. R. 
 
 139 lis 
 
 Elton r.'Brogden, 4 Camp. 281 . .74, 83, 93 
 ■ — - t'. Jordan, 1 Stark., N.P.C. 127. . 74, 
 
 83, 93 
 
 Elvin V. Chapman, Appendix 3-8 
 
 Emanuel v. Dane, 3 Camp. 299 .... 1C6 
 Emerson r. Dickson, N. P. 1853. .400, 433 
 
 r. Heelis, 2 Taunt. 48 .... 27, 39 
 
 Emery v. Richards, 14 M. & W. 729 . . 393 
 Eskridge v. Glover, 5 Stew. & Port. 
 
 (Amer.) 264 4 
 
 Essex (Earl of) v. Capel, N. P. 1809 ^ 
 
 358, 
 3 '19 
 363 
 
 382, 
 
 433 
 
 229 
 
 35 
 
 Evans r. Botteril, 33 L. J., M. C. 50. . 
 
 • V. Pratt, 4 Scott, N. R. 378 . . 
 
 406,410 
 Everard v. Hopkms, 2 Bulst. 332 ... . 
 Everett v. Collins, 2 Camp. 515 . . . . 
 
 F. 
 
 Fadenilke r. Holroyd, N. P. 1846 .. 444 
 Faii-maner r. Budd, 7 Bing. 575 .... 189 
 Falmouth (Earl of) v. Penrose, 6 B. & 
 
 C. 387 177 
 
 Farebrother v. Simmonds, 5 B. & Aid. 
 
 333 27, 43 
 
 Farina v. Home, 16 M. & W. 119 . . 15 
 Fawcett i\ York and North Midland 
 
 Railway Co., 16 Q. B. 610. . . .365, 360 
 Fearon r. Mitchell, L. R., 7 Q. B. 
 
 294, 295 58, 59 
 
 Fell V. Knight, 8 M. & W. 269, 276. .217 
 Felthouse v. Bindley, 31 L. J., C. P. 
 
 204 20 
 
 Fenn v. Harrison, 3 T. R. 760 . .131, 197 
 Fennell v. Ridler, 5 B. & C. 406 . . . . 36 
 
 Feret v. Hill, 6 Q. B. 587 151, 153 
 
 Ferguson v. Carrington, 9 B. & C. 59 . . 159, 
 
 160 
 FeiTier r. Peacock, 2 F. & F. 717 . . 153 
 Fesenmayer«.Adcock,16M.&W.449..443 
 Fielder v. Starkie, 1 H. Bla. 17. .123, 163, 
 
 171, 172 
 
 Finley v. Quirk, 9 Minn. 94 75 
 
 Firebrass (Sir Bazill) v. Brett, 2 Vern. 
 
 70 430 
 
 Firebrasse (Sir Bazil) v. Brett, 1 Vern. 
 
 489 430 
 
 Firth r. Ackroyd, N. P. 1853 315 
 
 Fisher r. Bridges, N. P. 1853 439 
 
TABLE OF CASES. 
 
 XXXVll 
 
 Fisher v. Howard, 13 W. R. 145 . . . . 216 
 
 t^. Ronalds, 22 L.J. ,C. P. 62.. 447 
 
 Fitch v. Jones, 5 E. & B. 238 . . 420, 421 
 Fitzmaurice v. Bayley, 9 H. of L. Cas. 
 
 78 18 
 
 Fivaz V. Nichoils, 2 C. B. 501, 513 . . 443 
 Fletcher r. Bowsher, 2 Stark. 561 .. 149 
 
 V. Rylands, L. R., 1 Ex. 265 . . 355 
 
 Flureau v. Thornhill, 2 W. Bla. 1078.. 210 
 Foot V. Baker, 5 M. & G. 339 . . 434, 442, 443 
 
 Ford V. Sykes, N. P. 1853 115 
 
 Foreman v. Great Western Rail. Co., 
 
 38 L. T., N. S. 851 273, 282 
 
 Forth V. Simpson, 13 Q. B. 680 .... 234 
 Foster v. Smith, 18 C. B. 156 . . 140, 144 
 
 V. Thackeray, 1 T. R. 57, n. . . 424 
 
 Fowler «>. Lock, L.'R., 7 C. P. 272; 
 
 41 L. J., C. P. 99; 26 L. T., N. S. 
 
 476 335, 342 
 
 Fowlest;. Great Western Rail. Co., 22 
 
 L. J., Ex. 76; 7 Exch. 099 285 
 
 France v. Gandet, L. R., 6 Q. B. 199 ; 
 
 40 L. J., Q. B. 121 201 
 
 Francis v. Cockrell, L. R., 5 Q. B. 509 ; 
 
 39 L. J., Q. B. 113 247 
 
 V. Wyatt, 3 Burr. 1498 . .59, 232, 
 
 237, 238 
 Franklin v. South Eastern Rail. Co., 
 
 3H. &N. 211 343 
 
 Frederick (Bart.) v. Lookup, 4 Burr. 
 
 2018 378 
 
 Freeman v. Baker, 2 N. & M. 446 . . 138, 149 
 Freestone,Exparte,25L.J.,M.C.121. . 437 
 French v. Styring, 26 L. J., C.P. 181 . . 389 
 Frend r. Dennett, 27 L. J., C.P. 314. . 194 
 Fuller r. Abrahams, 3 B. & Bing. 116 . . 154 
 
 Furley r. Bates, 33 L. J., Ex. 43 30 
 
 Fyson v. Chambers, 9 M. & W. 460 . . 28 
 
 G. 
 
 Gainsford v. Caroll, 2 B. & C. 624 . . 204 
 Gallaghers. Great Western Rail. Co., 
 
 Ir. R., 8 C. L. 326 .... 281 
 V. Humphrey, 6 L. T., N. S. 
 
 684 317 
 
 Gallaway r. Maries, L. R., 8 Q. B. D. 
 
 275; 30 W. R. 151 450, 451 
 
 Ganly v. Ledwidge, 10 L-. R., C. L. 
 
 33 (Q. B.) 56 
 
 Gapp V. Giandonati, N. P. 1857 .... 247 
 Gardiner v. Gray, 4 Camp. 145 .... 137 
 Gardner r. Grout, 2 C. B., N. S. 340 . . 14 
 
 Garment v. Barrs, 2 Esp. 673 93 
 
 Gamett v. Bradley, L.R., 3 App. Cas. 
 
 944 ; 48 L. J., Ex. 186 ; 39 L. T., 
 
 N. S. 261 212 
 
 Garton v. Bristol and Exeter Rail. 
 
 Co., 28 L. J., C. P. 306 269 
 
 PAGE 
 
 Gassiot r. Carpmael, 19 L. T. 64, 94. . 320 
 Gatty r. Field, 9 Q. B. 408, 431 . . 385, 396, 
 
 397 
 
 Gaunt r. Smith, N. P. 1856 241 
 
 Geddes i\ Pennington, 5 Dow, 163. . 122, 
 123, 191, 192, 198 
 
 Gedge r. Minue, 2 Bulst. 62 357 
 
 Gelber v. Berkley, Skin. 648 226 
 
 Gelley r. Clerk, Cro. Jac. 188 . .220, 237 
 George (The) and Richard, L. R., 3 
 
 Adm. 466 ; 24 L. T., N. S. 717 . . 342 
 Gething v. Morgan, N. P. 1857 .... 350 
 Gibbons v. Pepper, 1 Lord Raym. 38 . . 323 
 GibHn r. McMiillen, L. R., 2 P. C. 317 . . 260 
 Gibson v. Carruthers, 8 M. & W. 346 . . 160 
 
 V. Holland, L. R., 1 C. P. 1 . . 21 
 
 r. Pepper, 2 Salk. 637 301 
 
 Gilbert r. Svkes, 16 East, 150 415 
 
 Gilbert's case, 1 Mood. C. C. 186. .. . 61 
 Gilbertson v. Richardson, 5 C. B. 502 . . 345 
 Gillc. Manchester, &c. Rail. Co., L. R., 
 
 8 Q. B. 186; 42 L. J., Q. B. 89; 
 
 28 L. T., N. S. 587 286 
 
 Gilpin r. Clutterbuck, 13 L. T. 71 . . 447 
 Gimson v. Woodfall, 2 C. & P. 41 . . 65 
 Gladman r. Johnson, 36 L. J., C. P. 
 
 153 351 
 
 Godwin r. Francis, L. R., 5 C. P. 295; 
 
 39 L. J., C. P. 121 ; 22 L. T., N. S. 
 
 338 26 
 
 Goldsmith 'v. Martin," 4 M.. & G. 5 " '. '. 398 
 Gompertz v. Bartlett, 22 L. J., Q. B. 
 
 99 178 
 
 V. Denton, 1 Cr. & M. 207. . 168 
 
 Goodman v. Griffiths, 25 L. J., Ex. 145 21 
 
 V. Harvev, 4 A. (Sr E. 870. . 426 
 
 V. Kennell, 3 C. & P. 167 . . 340 
 
 V. Taylor, 5 C. & P. 410 . . 322 
 
 Goramt-. Sweeting, 2 Wms.Saund.200 , . 138 
 
 Gordon v. Rolt, 4 Ex. 366 341 
 
 V. Strange, 1 Ex. 477 34 
 
 Gore V. Gibson, 13 M. & ^Y. 626 .... 162 
 Graham v. Ewart, 26 L. J., Ex. 97. . 360 
 
 V. Musson, 5 Bing. N. C. 603 . . 28 
 
 Granger r. Dacre, 12 M. & AV. 431. . 184 
 Gravely v. Ford, Lord Raym. 209 . . 182 
 
 Gray v. Cox, 4 B. & C. 115 120 
 
 r. Gutteridge, 3 C. & P. 40 . . 52, 53 
 
 t'.Pullen,32L.J.,Q.B. 169 .317,319 
 
 Great Northern Rail. Co. r. Swaffield, 
 
 L. R., 9 Ex. 132; 43 L. J., Ex. 
 
 89 : 30 L. T., N. S. 562 284 
 
 Great Western Rail. Co. v. Glenister, 
 
 29 L. T., N. S.422; 22W. R. 72.. 282 
 Greathead v. Moriey, 3 M. & G. 139 . . 361 
 Green r. Bartlett, 8 L. T. , N. S. 503 . . 54 
 r. Baverstock, 32 L. J., C. P. 
 
 181 49 
 
 V. Goddard, 2 Salk. 640 364 
 
XXXYlll 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Greenr. Greeubauk, 2Marsh.485 . . 179, 180 
 Greenland v. Chaplin, 5 Exch. 243 . . 308, 
 
 344 
 Greenway v. Marshall, N. P. 1845 . . 81 
 
 Gregory v. Piper, 9 B. & C. 591 257 
 
 V. West Midland Eail. Co., 33 
 
 L. J., Ex. 155 274, 279 
 
 Greville v. Chapman, 5 Q. B. 745 410 
 
 Grier v. Sampson, 27 Penn. St. 183 . . 329 
 
 Grieve v. Milton, N. P. 1850 315 
 
 Griffiths V. Lee, 1 C. & P. 1 10 283 
 
 V. Perry, 28 L. J., Q. B. 204. .34, 
 
 205 
 Grill V. General Iron Screw Collieiy 
 
 Co., L. E., 1 C. P. 612 260 
 
 Grizewood v. Blane, 11 C. B. 538, 
 
 540 423 
 
 Groucott V. Williams, 32 L. J., Q. B. 
 
 237 241 
 
 Gundry v. Feltham, 1 T. R 337. .358,359 
 
 Gunnis v. Echart, 1 H. Bla. 289 44 
 
 Guthing v. Lj-un, 2 B. & Ad. 234 . . 29, 181 
 Gutsole r. Mathers, 1 M. & W. 495. , 180 
 
 H. 
 
 Hadland v. Price, Apj^endix 411 
 
 Hadleyr.Baxendale,23L.J.,Ex.l79..199, 
 
 200 
 
 r. Taylor, L. R., 1 C. P. 53. . 316 
 
 Haigh r. Sheffield (Corporation), L. P., 
 
 10 Q. B. 102; 44 L. J., M. C. 17; 
 
 31L.T.,N.S. 536; 23W. R. 547.. 450 
 Hale r. Eawson, 27L. J., C. P. 191.. 203 
 Hales V. London & North Western 
 
 Rail. Co., 32 L. J., Q. B. 292 ... , 291 
 HaU V. Condor, 2 C. B., N. S. 40 . . 114 
 
 V. Johnson, 13 W. R. 411 341 
 
 v. Knox, 33 L. J., M. C. 1 .... 363 
 
 r. Rogerson, Appendix 93 
 
 Hamlin v. Great Northern Rail. Co., 
 
 1 H. &N. 410 201 
 
 Hampden r. Walsh, L. R., 1 Q. B. D. 
 
 189; 45 L. J., Q. B. 238; 33L. T., 
 
 N. S. 852 ; 25 W. R. 607 . . 396, 397, 418, 
 
 433 
 Hammack r. White, 11 C. B., N. S. 
 
 588 323, 324, 325, 328 
 
 Handayside v. Wilson, 3 C. & P. 530 . . 328 
 Handford r. Palmer, 2 B. & Bing. 359 . . 262 
 Handley r. M'Laiue, 10 Bing. 488 . . 20 
 Hands v. Burton, 9 East, 349 ... . 182, 187 
 Hankey v. Smith, Peake, N. P. C. 57, n. 1 75 
 
 Hanson r. Meyer, 6 East, 621 31 
 
 • r. Roberdeau, Peake, N. P. C. 
 
 163 49, 52 
 
 Hardcastle r. South Yorkshire Rail. 
 
 Co., 28 L. J., Ex. 139, 287 316 
 
 Hardingham r. Allen, 5 C. B. 793 . . 46, 
 53, 179, 188, 189 
 Hardy v. Thacker, L. R., 4 Q. B. D. 
 685; 48L. J.,Q. B. 289; 39L. T., 
 N. S. 595 ; 27 W. R. 158— C. A.. . 424 
 Hare r. Osborne, 34 L. T., N. S. 294. .441 
 Harington v. Hogart, 1 B. & Ad. 577. .53 
 Harman r. Reeve, 25 L. J. , C. P. 257 . . 7 
 Harnor r. Groves, 24 L. J., C. P. 53 . . 13 
 Harper v. Williams, 4 Q. B. 232 .... 124 
 Harris r. Midland Rail. Co., 25 W. R. 
 
 63— D. C. A 276 
 
 r. Mobbs, L. R., 3 Ex. D. 268; 
 
 39L.T.,N.S.164; 27 W.R. 
 
 154 304 
 
 V. Nickerson, L. R., 8 Q. B. 
 
 286; 42 L. J., Q. B. 171; 
 28 L. T., N. S. 410; 21 
 
 W. R. 635 48 
 
 Harrison r. London, Brighton and 
 South Coast Rail. Co., 29 
 L. J., Q. B. 209; 31 L. J., 
 
 Q. B. 113 278, 279, 283 
 
 V. Luke, 14 M. & W. 139 . . 177 
 
 Hartr.Baxendale, 16 L. T.,N.S. 390. .292 
 
 r. Bush, 27 L. J., Q. B. 271 . . 15 
 
 Harvey r. Archbold, 3 B. & C. 626. . 185 
 
 • V. Young, Yelv. 20 153 
 
 Hastelow v. Jackson, 8 B. & C. 221 . . 396, 
 
 397 432 
 Hawker r. Hallewell, 3 Sm. & Giff.' 
 
 194 444 
 
 r. Wood, 1 W. R. 316 . .410, 447 
 
 Hawkes v. Smith, Car. & M. 72 .... 283 
 Hawkins v. Cooper, 8 C. & P. 473 . . 320 
 
 ■ V. Rutt, Peake, N. P. C. 248. .34 
 
 Hawser. Crow, R. & M. 414 161 
 
 Hawthorn v. Hammond, IC. &K. 407 .. 217 
 Hay V. Ayling, 20 L. J., Q. B. 171 . . 446 
 
 Haycroft r. Creasy, 2 East, 92 155 
 
 Hayworth r. Hutchinson, L. R., 2 
 
 Q. B. 447 ; 36 L. J., Q. B. 370 . . 168 
 Head v. Diggon, 3 M. & R. 97 .... 47 
 
 r. Tat'tersall, L. R., 7 Ex. 7; 41 
 
 L. J., Ex. 4; 25L.T., N. S. 631.. 118, 
 
 169 
 Hegan v. Eighth Avenue Rail. Co., 
 
 15N. Y. 380 330 
 
 Heilbut V. Hickson, L. R., 7 C. P. 438 ; 
 
 41 L. J., C. P. 228 13, 205 
 
 Hclver r. Hawke, 5 Esp. 72 .... 130, 197 
 Hemming r. Parry, 6 C. & P. 580 . . 118 
 
 Henderson r. Blake, N. P. 1852 116 
 
 Heugh i'. London aLd North Western 
 Piail. Co.,L. R.,5Ex. 51; 39 L. J., 
 
 Ex. 48 ; 21 L. T., N. S. 676 284 
 
 Hewitt V. Price, 4 M. & G. 355 .... 423 
 
TABLE OF CASES. 
 
 XXXIX 
 
 PAGE 
 
 Heyward v. Barnes, 23 L. T. 68 .... 22 
 Hibblewhite v. M'Morine, 5 M. & 
 
 W. 462 30 
 
 Hickman v. Hayiies, L. R., 10 C. P. 
 598; 44L. J.,C.P. 358; 32L. T., 
 
 N. S. 873; 23 W. R. 871 24 
 
 Higgins V. Senior, 8 M. & W. 845 . . 124 
 Higginson v. Simpson, L. R. , 2 C. P. 
 76 ; 46 L. J., C. P. 192 ; 36 L. T., 
 
 N. S. 17 ; 25 W. R. 303 419 
 
 Higgons ;-. Burton, 26 L. J. , Ex. 342 . . 160 
 
 Higgs r. Thrale, N. P. 1850 76, 118 
 
 HiU V. Balls, 3 Jur., N. S. 592 .. 114, 211 
 
 I'. Fox, 4 H. &N. 359..417, 423, 444 
 
 V. Gray, 1 Stark. N. P. C. 434.. 49, 
 
 154 
 
 • V. South Staffordshire Rail. Co., 
 
 L. R., 18 Eq. 194 ; 43 L. J., Ch. 
 
 566 202 
 
 Hilliard V. OrbeU, N. P. 1834 168 
 
 Hiuchcliffe r. Barwick, L. R., 5 Ex. D. 
 177 ; 49 L. J., Ex. 495 ; 42 L. T., 
 
 N.S. 492 117, 118 
 
 Hinde v. Whitehouse, 7 East, 568. . 18, 43 
 Hiort V. Bott, L. R., 9 Ex. 86, 89 ; 
 43L. J.,Ex. 81 ; 30L. T.,N. S. 25; 
 
 22 W. R. 776 40 
 
 Hirst V. Molesburv, L. R., 6 Q. B. 130 ; 
 40 L. J., M. C. 76; 23 L. T., N. S. 
 
 55 ; 19 W. R. 246 437 
 
 Hoare v. Great Western Rail. Co., 37 
 
 L. T., N. S. 186 ; 25 W. R. 83 . . . . 282 
 Hobbs V. London and South Western 
 Rail. Co., L. R., 10 Q. B. 117 ; 44 
 L. J., Q. B. 52 ; 32 L. T., N. S. 
 
 352; 23 W. R. 520 199 
 
 Hodgman r. West Midland RaU. Co., 
 
 33L. J., Q. B. 233 284 
 
 Hodson V. TerriU, 1 C. & M. 797, 
 
 802 432, 434 
 
 Hoghton's (Sir Henry) case, cited 5 B. 
 
 & C. 556 252 
 
 Holder r. Soulby, 29 L. J., C. P. 246. .217 
 Hole r. Sittingbourne RaU. Co., 6 
 
 H. &N. 488; 30L. J.,Ex. 81 .... 318 
 HoUeran v. Bagnell, L. R., 4lr. 740— 
 
 C. P.D 342 
 
 Hohnes v. Bagge, 17 Jur. 1095 434 
 
 V. Hoskins, 9 Ex. 753 7, 10 
 
 ■ V. Mather, L. R., 10 Ex. 261 ; 
 
 44 L. J., Ex. 176; 33 L. T., 
 
 N. S. 361 325 
 
 V. Onion, 2 C. B., N. S. 790 . . 251 
 
 v. Sixsnuth,7Ex.802..160,400,433 
 
 Holyday v. Morgan, 28 L. J., Q. 
 
 B. 9 71, 103, 134 
 
 Honeyman v. Marryat, 21 Beav. 14 . . 21 
 Hooper v.Kenshole, L. R., 2 Q. B. D. 
 127; 46 L. J., M. C. 160 57 
 
 PAGE 
 
 Hopkins v. Tanqueray, 28 L. J., C. P. 
 
 162 51, 140, 154 
 
 V.Ware, L. R., 4 Ex. 268 ; 
 
 38 L. J., Ex. 147 35 
 
 Hore V. Milner, Peake, N. P. C. 
 
 58, n 175 
 
 Home ('.Midland Rail. Co., L. R., 
 
 8 C. P. 131 ; 42 L. J., C. P. 54 ... . 201 
 HorsfaU v. Thomas, 1 H. & C. 90 . . . . 151 
 Hotson V. Brown, 9 C. B., N. S. 445 . . 150 
 Hounsell v. Smyth, 7 C. B. , N. S. 731 . . 316 
 HouseholdFire Insurance Co. 1'. Grant, 
 
 L. R., 4 Ex. D. 216 ; 48 L. J., Ex. 
 
 577; 41 L. T., N. S. 298; 27 W. 
 
 R. 858— C. A 23 
 
 Howard v. Castle, 6 T. R. 634 50 
 
 V. Sheward, L. R., 2 C. P. 
 
 148; 36 L. J., C.P.42. . . . 129, 130, 131 
 Howe V. Pahner, 3 B. & Aid. 324 . . 10, 12 
 Hewlett V. Haswell, 4 Camp. 118 . . 179 
 Hudson V. Baxendale, 2 H. & N. 575 . . 268, 
 
 283 
 
 t'. Lombard, L. R., 1 H. L. 
 
 324 186 
 
 r. Roberts, 6 Ex. 697 354 
 
 Hughes r. Quentin, 3 C. & P. 703 . . 345 
 Humble v. Hunter, 12 Q. B. 310 ... . 127 
 Hume V. Oldacre, 1 Stark. N. P. C. 
 
 351 359 
 
 Humphrey f. Dale, 27 L. J.,Q. B. 390 . . 194 
 
 Hunt V. Hecht, 22 L. J., Ex. 295 14 
 
 Hurst r. Orbell, 8 A. & E. 107 178 
 
 Hyams v. Webster, L. R., 2 Q. B. 
 
 264; L.R., 4Q. B. 138— Ex. Ch... 318 
 
 Hyde c. Davis, Appendix 94 
 
 Hyman v. Nye, L. R., 6 Q. B. D. 
 685 245 
 
 Iliidge V. Goodwin, 5 C. & P. 190, 
 
 193 306, 311 
 
 Ilott V. Wilkes, 3 B. & Aid. 304 .... 312 
 Imperial Land Co. of Marseilles, In 
 
 re, Harris' case, L. R., 7 Ch. 587 ; 
 
 41 L. J., Ch. 621 ; 26 L. T., N. S. 
 
 781 ; 20 W. R. 290 23 
 
 Inchbald v. Western Neilgherry Coffee 
 
 Co., 11 L. T., N. S. 345 204 
 
 Ireland r. Johnson, 1 Bing. N. C. 162 . . 180 
 Irons V. SmaUpiece, 2 B. & Aid. 551 . . 3 
 Irvine v. Watson, L. R., 5 Q. B. D. 
 
 102 ; 49 L. J., Q. B. 239; 41 L. T. 
 
 N. S. 51 127 
 
 Irving V. Motley, 7 Bing. 551 160 
 
 Irwin V. Osborne, 5 Ir. Com. Law 
 
 Rep. 404 420 
 
xl 
 
 TABLE OF CASES. 
 
 J. 
 
 PAGE 
 
 Jackson r. Cummius, 5 M. & W. 350. .233, 
 
 234, 242 
 
 V. Smithson, 15 M. & W. 563 . . 354 
 
 Jacobs r. Latour, 2 M. & P. 205 .... 234 
 
 James r. Morgau, 1 Lev. Ill 203 
 
 Janson r. Brown, 1 Camp. 41 356 
 
 Jay V. Whitefielcl, cited 4 Bing. 644 . . 313 
 Jeffeiyy.Walton, 1 Stark. N. P.C.267. . 258 
 
 Jeffreys v. Walter, 1 Wils. 220 434 
 
 Jelly r. Clark, Cro. Jac. 189 220 
 
 Jendwiue r. Slado, 2 Esjj. 572 . . 141, 149 
 Jennings r. Rimdall, 8 D. & R. 335. , 248 
 Jessoi3 «'. Lutwyche, 24 L. J., Ex. 65. . 422 
 Joel V. Morrison, 6 C. & P. 501 . .337, 338 
 Johnson v. Dodgson, 2 M. & W. 653. . 17, 
 25 193 194 
 
 V. Hill, 3 Stark.N.P.C. 172 . .' 225 
 
 r. Johnson, 3 B. & P. 162 . . 3 
 
 v. Lansley, 12 C. B. 468 . .422, 427 
 
 ■ V. Midland Ptail. Co., 4 Ex. 
 
 367, 373 268 
 
 v. Pye, 1 Sid. 258 161 
 
 v. Stear,33L.J.,C.P. 130.. 201 
 
 Joliff V. Bendell, R. & M. 136 92 
 
 Jones V. Bright, 3 M. & P. 175. . 113, 115, 
 116, 120, 121, 158 
 
 V. Carter, 15 L. J., Q. B. 96 . . 398 
 
 V. Cowley, 4 B. & C. 445 . . 118, 182 
 
 V. Dowlo, 9 M. & W. 19 193 
 
 t'. Gibbons, 22 L. J., Ex. 348 . . 177 
 
 ■ r. Hart, 2 Salk. 4 40 229 
 
 V. Jackson, 29 L. T., N. S. 399 . . 219 
 
 V. Just, L. R., 3 Q. B. 197; 37 
 
 L. J., Q. B. 89; 18 L. T., 
 
 N. S. 208 121, 137, 206 
 
 V. Osborn, 2 Chit. 484 214 
 
 r. Pearle, 1 Stra. 557 225, 226 
 
 V. Perry, 2 Esp. 482 350 
 
 r. Powell, 5 B. & C. 650 244 
 
 r. Randall, Cowp. 39 414 
 
 r. Thurloe, 8 Mod. 172. .. . 225, 226 
 
 • . V. Tyler, 1 A. & E. 522 221 
 
 • V. Victoria Graving Dock Co., 
 
 L. R., 2 Q. B. D. 314; 46 
 L.J., Q. B. 219; 32 L. T., 
 
 N. S. 347 26 
 
 r. Williams, 4G L. J., M. C. 270; 
 
 36L.T.,N. S. 559; 25 W. R. 501 . . 363 
 Jordan v. Norton, 4 M. & W. 155. . 9, 
 
 22, 132 
 Joseph r. Adkins, 2 Stark. N. P. C. 76 . . 64 
 Josling V. Irvine, 6 H. & N. 512 .... 204 
 
 v.Kingsford, 32L.J., C.P.94 ..116 
 
 Judson V. Etheridge, 1 Cr. & M. 743 . . 243 
 Justice V. GosUng, 21 L. J., C. P. 94 . . 300 
 
 K. 
 
 PAGE 
 
 Kain V. Old, 2 B. & C. 627 .... 3, 24, 119 
 Kearney v. London, Brighton and 
 South Coast Rail. Co., L. R., 5 
 Q. B. 411; Ex. Ch., L. R., 6 
 
 Q. B. 759 328 
 
 Kellett t'. Stannard, 4 Ir. Jur. 50 (Ex. 
 
 Ir.) 356 
 
 Kelner v. Baxter, L. R., 2 C. P. 174 ; 
 
 36 L. J., C. P. 94 124 
 
 Kendall v. London and Southwestern 
 
 Rail. Co., L. R., 7 Ex. 373; 41 
 
 L. J.,Ex. 184; 26L.T.,N. S. 735. . 266 
 
 Kennedy r. Gad, 3 C. & P. 376 . . 399, 434 
 
 Kent V. Midland Rail. Co., L. R., 10 
 
 Q. B. 1; 44 L. J., Q. B. 18; 31 
 
 L. T.,N. S. 43 270 
 
 Kenworthy v. Scholfield, 2 B. & C. 945 . . 19, 
 
 43 
 Kenyon v. Hart, 13 W. R. 406 .... 363 
 Keppel V. Countess Dowager of Albe- 
 marle, 1850 392 
 
 Kibble v. Gough, 38 L. T., N. S. 204 
 
 — C. A 10, 14 
 
 Kiddell v. Barnard, 9 M. & W. 670 . . 70, 
 
 71, 72, 73, 74, 82, 92, 101, 109, 197 
 
 King v. Boston, cited 7 East, 481, n. . . 166, 
 
 195 
 
 V. Price, 2 Chit. 416 205 
 
 V. Sears, 2 C. M. & R. 53 . . 181, 187 
 
 • V. Spurr, L. R., 8 Q. B. D. 104 . . 335, 
 
 342 
 
 King's case, N. P. 1853 436 
 
 Kingsford v. Merry, 11 Ex. 577 ; 26 
 
 L. J., Ex. 83 159, 160 
 
 Kington v. Kington, 1 1 M. & W. 233 . . 34 
 Kirby r. Great Western Rail. Co., 18 
 
 L. T., N. S. 658 273 
 
 Knight's case, 1 Lewin's C. C. 168. . 296 
 Knight r. Cambers, 15 C. B. 562. .422, 427 
 
 V. Fitch, 15 C. B. 566.... 422, 427 
 
 V. Fox, 5 Ex. 725 318 
 
 Knox V. Whalley, 1 Esp. 159 172 
 
 Kornegay v. White, 10 Ala. 255. ... 70 
 Kronheim v. Johnson, L. R., 7 Ch. D. 
 6; 47 L. J., Ch. 132; 37 L. T., 
 N. S. 752 25 
 
 L. 
 
 Lacey r. Umbers, 2 C. M. & R. 116 . 408 
 Laing r. Hain, 2 S. M. & P. 395 
 
 (Court of Sess. Sco.) 46, 52 
 
 Lake Shore Railroad Co. v. Perkins, 
 
 25 Mich. 329 268 
 
TABLE OF CASES. 
 
 xli 
 
 TAGE 
 
 Lamb v. Lady Elizabeth Palk, 9 C. 
 
 & P. 629 337 
 
 Lambert v. Harrison, N. P. 1853 302 
 
 Lane z;. Cotton, 1 Salk. 18 .... 217, 228, 
 
 232 
 Langton v. Higgins, 28 L. J., Ex. 
 
 252 14 
 
 Laugher r. Pointer, 5 B. & C. 547, 
 
 558 252, 253, 254 
 
 Laytliroap v. Bryant, 2 Bing. N. C. 
 
 244 18, 26 
 
 Layton v. Hurrv, 8 Q. B. 811 228 
 
 Leame v. Bray,"'3 East, 593 328 
 
 Leather Cloth Co. v. Heirouimus, 
 
 L. R.,10 Q. B. 140; 44 L. J.,Q. B. 
 
 .54; 32 L T., N. S. 307 21 
 
 Leatt r. Vine, 30 L. J., M. C. 207 . . 363 
 
 Lee V. Bayes, 18 C. B. 599 56, 66 
 
 • ?;. Gold, 44 J.P. 395— Q.B.D... 455 
 
 V. Irwin, 4 L. Jiir. 372 (Ex. Ir.) . . 234 
 
 . r. Paterson. 8 Taunt. 540 204 
 
 V. Piley, 18 C. B., N. S. 722; 
 
 34 L. J., C. P. 212 354 
 
 r. Shore, 1 B. & C. 94 185 
 
 Leeser's case, Cro. Jac. 497 430 
 
 Leeson r. Smith, 4 N. & M. 304 185 
 
 Legg V. Pardoe, 9 C. B., N. S. 289. . 363 
 Legge V. Tucker, 1 H. & N. 500 .... 240 
 Leroux v. Brown, 16 Jur. 1021 ... .5, 25 
 
 Levy r. Green, 1 El. & El. 969 15 
 
 V. Langridge, 4 M. & W. 337 . . 150 
 
 V. Lord' Herbert, 7 Taunt. 318 . . 185 
 
 Lewis t'. Bright, 24 L. J., Q. B. 191.. 421 
 
 V. Cosgreave, 2 Taimt. 2 194 
 
 V. Great Western Rail. Co., 5 
 
 H. & N. 867 276 
 
 r. Great Western Rail. Co. (2), 
 
 L. R., 3Q. B.D. 195; 47L.J., 
 Q.B.131; 37L.T.,N.S.744.. 272, 
 276, 281, 282 
 
 • r. Nicholson, 2 1 L. J., Q.B. 31 6.. 125 
 
 V. Peake, 7 Taunt. 153 74, 210 
 
 I'. Pedi'ick, 29L. T., N. S. 178 .. 22 
 
 Lickbarrow r. Mason, 2 T. R. 63. .32, 251 
 
 Liddard v. Kain, 2 Bing. 183 120 
 
 Limpus V. General Omnibus Co., 1 
 
 H. & C. 526 332, 334, 341 
 
 Lindley v. Lacey, 5 N. R. 51 24 
 
 Liverpool Adelphi Loan Association v. 
 
 Fairhurst, 9 Ex. 422 161 
 
 Llandaff and Canton Districts Market 
 
 Co. V. Lyndon, 6 Jur., N. S. 1344. . 57 
 Lloyd v. Ogleby, 5 C. B., N. S. 667. .328, 
 
 329, 331 
 Load V. Green, 15 M. & W. 216. . 159, 160 
 Lobb i: Stanley, 5 Q. B. 574, 581 . . 25 
 
 Lockett V. Nicivlin, 2 Ex. 93 24 
 
 Loder v. Kekulc, 27 L. J.., C. P. 27 . . 205 
 Logan r. Le Mesurier, 1 1 Jur. 1094 . . 28 
 
 London Chartered Bank of Australia 
 
 V. Lempriere, L. R., 4 P. C. 572 . . 186 
 Longmatev. Ledger, 6 Jur.,N. S. 481 . . 162 
 Longmead v. Holliday,6Ex.764, 766 .. 150, 
 
 229 
 Lord V. Midland Rail. Co., L. R., 2 
 
 C. P. 339 276 
 
 Loveseyr. Stallard, 30L. T.,N. S.792 . . 363 
 Lowe V. London and North Western 
 
 Rail. Co., 21 L. J., Q. B. 363 .... 174 
 Luard V. Batcher, 15 L. J.,C. P. 187. . 517 
 Lucas V. Bristow, El. Bl. & El. 913. . 24 
 
 ■ V. Delacoiir, I M. k W. 249 . . 127 
 
 Lygo V. Newbolt, 23 L. J., Ex. 108. .251, 
 
 306, 314 
 
 Lynch v. Nurdin, 1 Q. B. 33 306, 314 
 
 Lyne v. Siesfield, 1 H. & N. 278 ... . 422 
 Lynn ;-. Bell, 10 Ir. R., C. L. 487 . . 421 
 Lyons v. Be Pass, 11 A. & E. 326 . . 57 
 
 V. Martin, 8 A. & E. 515 332 
 
 Lysney v. Selby, Lord Raym. 1120. . 179 
 
 M. 
 
 Macdonald r. Longbottom, 6 Jur., 
 
 N. S. 724 24 
 
 Mackay v. Commercial Bank of New 
 
 Brunswick, L. R., 5 P. C. 394 ; 43 
 
 L. J., P. C. 31 125 
 
 Maclean v. Dunn, 4 Bing. 729. .27, 52, 175 
 Mahalen v. Dubhn, &c. Distillery Co. 
 
 Ir. R., 11 C. L. 83 21 
 
 Mallan v. Radloff, 5 N. R. 54 . . 123, 143 
 Manby r. Scott, 1 Mod. 136, 137. .31, 434 
 Manchester and Altrincham Rail. Co. 
 
 V. Fullarton, 14 C. B., N. S. 54 . . 305 
 Manchester, Sheffield and Lincolnshire 
 
 Rail. Co. «'. Wallis, 14 C. B. 213.. 366 
 Mangan r. Atterton, L. R., 1 Ex. 239 ; 
 
 4 H. & C. 388 314 
 
 Manning r. Purcell, 24 L. T. 317 . . 400 
 Manzoni «'. Douglas, L. R., 6 C. P. 
 
 D. 145 300, 324 
 
 Marfell v. South Wales Rail. Co., 8 
 
 C. B., N. S. 525 241, 367 
 
 Margetsont'. Wright, 1 M. & Sc. 622 . . 104, 
 
 134, 135, 136, 179 
 
 Marryatt v. Broderick, 2 M. &W. 369 . . 392, 
 
 393, 402, 410 
 
 Marsh v. Densham, 1 M. & R. 442 . , 183 
 
 V. Jelf, 3 F. & F. 234 39 
 
 r. Keating, 1 Bing. N. C. 198 . . 66 
 
 Marshall r. Lynn, 6 M. & W. 118 . .5, 23 
 Marson v. Short, 2 Bing. N. C. 118. . 184 
 
 Martin v. Hewson, 10 Ex. 737 396 
 
 V. Nightingale, 3 Bing. 421 . . 39 
 
 V. Smith, 6 Scott's N. R. 272 . . 443 
 
 Martindale v. Smith, 1 Q. B. 395.. 30, 32 
 
xlii 
 
 TABLE OF CASES. 
 
 30 
 
 9 
 
 155 
 
 350 
 
 156 
 
 331 
 
 Martineau r. Kitching, L. E.., 7 Q. B. 
 
 438 
 
 Marvin v. Wallace, 2 Jur., N. S. 689 . . 
 Mash V. Densham, 1 M. & Rob. 442.. 
 Mason v. Keeling, 12 Mod. 333 . .349, 
 
 V.Williams, 28L.T.,N.S. 232.. 
 
 Matthews r. Parker, Appendix 94 
 
 May V. Burdett, 9 Q. B. 101 355 
 
 Mayhew v. AVardley, 14 C. B., N. S. 
 
 550 3G2, 363 
 
 Mayor of Colchester v. Brooke, 7 Q. B. 
 
 359 301, 308, 
 
 ■ • Reading v. Clarke, 4 B. & 
 
 Aid. 269 181 
 
 M'Cance v. London and North Western 
 
 Rail. Co., 31 L. J., Ex. 65; 34 L. J., 
 
 Ex. 39 279, 281, 292 
 
 M'Carthy V.Young, 3 L.T.,N.S.785. . 258 
 M'Connell r. Murphy, L. R., 5 P. C. 
 
 203; 28 L. T., N.'S. 713 116 
 
 M'Elwainey. Mercer, 9 Ir. Com. Law, 
 
 13 397 
 
 M'Ewan v. Smith, 2 H. of L. Cas.309 . . 15 
 M'Hole r. Davies, L. R., 1 Q. B. D. 
 
 59; 45 L. J., M. C. 30 59 
 
 M'Kean v. M'lver, L. R., 6 Ex. 36; 
 
 40 L. J., Ex. 30; 24 L.T.,N.S.559. . 283 
 M'Kenzie r. Hancock, R. & M. 436. . 206 
 M'Keon v. Bolton, 3 Ir. Jur. 288 
 
 (Q. B. Ir.) 320 
 
 M'Kinnell v. Robinson, 3 M. & W. 
 
 434 422, 427, 434, 442, 444, 458 
 
 M'Laughliu v. Pryor, 1 C. & Marsh. 
 
 354 255, 257, 335 
 
 M'Lean r. Nicholl, 7 Jur , N. S. 999 . . 21 
 McMahon v. Field, L. R , 7 Q. B. D. 
 
 591 ; 50 L. J., Ex. 552-C. A 199 
 
 M'Manus v. Cricket, 1 East, 106 ... . 332 
 V. Lancashire and Yorkshire 
 
 Rail. Co., 4 H. & N. 327. .272, 275, 280 
 Mearing v. HeUings, 14 M. & W. 712 . . 396, 
 
 397 
 MeUisht'.Motteux,Peake,N.P.C.115. . 156 
 
 Mellor V. Leather, 17 Jur. 709 68. 
 
 Mesnard v. Aldridge, 3 Esp. 271 . .45, 47 
 Metzler r.Gouuod, 32 L.T. , N.S. 656 . . 22 
 Mews V. Carr, 26 L. J.. Ex. 39 .... 39 
 
 P. 1853 443 
 
 2 Lev. 173 301, 
 
 354, 355 
 Daykin, 17 C B. 
 366 
 
 Meynell v. Bone, N. 
 Michael v. Alestree, 
 
 Midland Rail. Co. 
 126 
 
 Miles V. Sheward, 8 East, 7 182 
 
 Miller v. Beale, 27 W. R. 403 (M. R.) . . 54 
 
 V. Lawton, 15 C. B., N. S. 834 . . 128 
 
 Milne v. Marwood, 15 C. B. 778 150 
 
 Milnes v. Cowley, 8 Price, 620 153 
 
 Miner v. Bradley, 22 Pick. Rep. 459 
 
 (Amer.) 3 
 
 PAGE 
 
 Mitchell V. CrasweUer, 22 L. J., C. P. 
 
 104 337, 338, 339 
 
 V. Hayne, 2 Sim. & S. 63 . . 42 
 
 Moffatt V. Bateman, L. R. , 3 P. C. 1 1 5 ; 
 
 22L.T.,N.S.140; 6 Moore, P. C. C, 
 
 N. S. 390 300 
 
 Motj-gridge v. Jones, 3 Camp. 38 ... . 172 
 Moudel r. Steel, 8 M. & W. 858 .... 195 
 Monkton v. Pashley, 2 Salk. 639 ... . 362 
 
 Moore V. Cooper, 1853 397 
 
 Moran v. Pitt, 42 L. J., Q. B. 47 ; 28 
 
 L. T., N. S. 554 ; 21 W. R. 525 . . 65 
 Morden v. Porter, 7 C. B.,]Sr. S.641 . . 363 
 Morgan v. Hedger, L. R., 5 C. P. 485; 
 
 40 L. J., M. C. 13 216 
 
 V. Ravey, 30 L. J., Ex. 131.. 219, 
 
 222 
 Morley i'. Attenborough, 18 L. J., Ex. 
 
 148 113, 114 
 
 V. Greenhalgh, 32 L. J., Q. B. 
 
 199 441 
 
 Morris v. Blackman, 10 Jur., N. S. 
 
 520 438 
 
 Morse v. Slue, 1 Ventr. 238 269 
 
 Morton r. Tibbett, 15 Q. B. 428 ... .8, It 
 Mosley v. Fossett, 1 Rol. Abr. 3 .... 221 
 Moss V. Sweet, 20 L. J., Q. B. 167.. 170, 
 
 177, 194 
 
 ■ V. Townsend, 1 Bulst. 207. . 225, 227 
 
 Mounsey r. Ismay, 1 H. & C. 729 . . 389 
 
 V. , 34 L. J., Ex. 52.. 390 
 
 Mullet r. Mason, L. R., 1 C. P. 559 ; 
 
 35 L. J., C. P. 299 211 
 
 Mulliner v. Florence, L. R., 3 Q. B. 
 
 D. 484; 47 L. J., Q. B. 700; 38 
 
 L. T., N. S. 167 223, 224 
 
 Mummery r. Paul, 1 C. B. 322. . 151,179,180 
 Murphy r. Boese, L. R., 10 Ex. 126 ; 
 
 44 L. J., Ex. 40 ; 32 L. T., N. S. 
 
 122 28 
 
 Murray v. Mann, 2 Ex. 538. .53, 125, 150, 
 159, 186, 187, 239 
 Muschamp v. Lancaster and Preston 
 
 Rail. Co., 8 M. & M. 421 ....281, 285 
 Myers r. London and South Western 
 
 Rail. Co., L. R., 5 C. P. 1 291 
 
 Mynn v. JolifPe, 1 M. & Rob. 326 . . 52 
 
 N. 
 
 National Mercantile Bank v. Rymill, 
 
 44 L. T., N. S. 767— C. A 40 
 
 Nelson v. Stocker, 28 L. J., Ch. 760. . 161 
 Newcomen v. Lynch, 10 Ir. R., C. L. 
 
 248, Ex. Ch 404 
 
 Newton v. Trigg, 1 Show. 270 217 
 
 Nicholas r. Badg-er, 3 T. R. 259, n. . . 357 
 
 NichoUe v. Plume, 1 C. & P. 272 ... . 15 
 
TABLE OF CASES. 
 
 xliii 
 
 Nichols V. Marsland, L. R., 10 Ex. 
 
 2oo; L.R.,2Ex. D. 1;46L. J. 174.. 265 
 Nicholson I'. Bower, 28 L. J., Q. B. 97..13 
 
 r. Great Western Rail. Co., 
 
 28 L. J., C. P. 89 269 
 
 Nitro-Phosphate, &:c. Manure Co. v. 
 London and St. Katherine Docks 
 Co., L. R., 3 Ch. D. 503 ; 39 L. T., 
 
 N. S. 433 265 
 
 Noadr.Murrow,40L.T.,N. S. 100.. 186 
 Noble r. Ward, L. R., 1 Ex. 117, Ex. 
 
 Ch. ; L. R., 2 Ex. 135 23 
 
 Norman r. PhiUips, 14 M. & W. 283. . 14 
 North V. Jackson, 2 F. & E. 198 . . . . 64 
 
 v. Smith, 10 C. B., N. S. 572 . . 309 
 
 Nugent V. Kirwan, 1 Jebb & Symes, 
 
 97 (Q. B. Ir.) 244 
 
 r. Smith, L. R., 1 C. P. D. 
 
 441, 444 ; 45 L. J., C P. 697; 34 
 
 L. T.', N. S. 827 265, 267 
 
 O. 
 
 Oakham r. Ramsden, 44 L. J., C. P. 
 
 309 ; 32 L. T., N. S. 825 422 
 
 Oakley v. Portsmouth, &c. Steam 
 Packet Co., llExch. 623; 
 
 21 L. J., Ex. 101 264 
 
 V, Rigby, 3 Scott, 194 423 
 
 Ockenden v. Henley, 27 L. J., Q. B. ' 
 
 361 16 
 
 O'Connor v. Bradshaw, 5 Ex. 890 . . 439 
 Ogler. Vane (Earl), L. R., 3 Q. B. 
 
 272, Ex. Ch. ; 37 L. J., Q. B. 771 . . 24, 
 
 205 
 Ohrby v. Ryde Commissioners, 33 
 
 L. J., Q. B. 296 320 
 
 Okell r. Smith, 1 Stark. N. P. C. 107. .166 
 Oldham c. Ramsden, 44 L. J., C. P. 
 
 309 : 32 L. T., N. S. 825 452 
 
 Ollivant v. Bailey, 5 Q. B. 288 164 
 
 Onley r. Gee, 30 L. J., M. C. 222 . . 455 
 Onslow V. Eames, 1 Stark. N. P. C. 
 
 81 100, 110 
 
 Oppenheim v. White Lion Hotel Co., 
 
 L. R., 6 C. P. 515 ; 40 L. J., C. P. 
 
 93; 25 L. T., N. S. 93 219 
 
 Orchard v. Rackstraw, 9 C. B. 698 . . 239 
 Ormrod v. Huth, 14 M. & W. 664 . . 116, 
 141, 155, 186, 190, 197 
 Orr r. Fleming, 1 W. R. 339 . . 349, 350, 352 
 Osborn v. Gillett, L. R., 8 Ex. 88 ; 44 
 
 L. J., Ex. 53 66 
 
 V. Meadows, 12 C. B., N. S. 
 
 10 363 
 
 V. Thompson, 9 C. & P. 337 . . 186 
 
 Cborne v. Hart, 23 L. T.,N. S. 851; 
 
 19 W. R. 331, Ex 114 
 
 Oughton V. Seppings, 1 B. & Ad. 241 . . 178 
 
 PAGE 
 
 Oulds V. Harrison, 24 L. J., Ex. 66. .422, 
 
 427 
 Overton r. Freeman, 21 L. .J.. C. P. 
 
 52 318, 319 
 
 Owen's case, 1 Mood. C. C. 205 .... 62 
 
 P. 
 
 Padgett 2'. Macnair, 15 Court of Sess. 
 
 76 (Sco.) 170 
 
 Paice r. Walker, L. R., 5 Ex. 173 ; 
 
 39 L. J., Ex. 109 ; 22 L. T., N. S. 
 
 547 127 
 
 Palmer r. Grand Junction Canal Co., 
 
 4M. & W. 749 264 
 
 Pappin V. Maynard, 9 L. T., N. S. 
 
 327 434 
 
 Pardington v. South Wales Rail. Co., 
 
 1 H. &N. 396 274 
 
 Parker r. Farebrother, 2 W. R. 370 . . 40 
 
 v. Great Western Rail. Co., 7 
 
 Scott, N. R. 835 264 
 
 r. Wallis, 5 E. & B. 28 13 
 
 Parkhurst r. Foster, 1 Salk. 387 .... 237 
 Parkinson v. Lee, 1 East, 323 . . 117, 123 
 Parr v. Winteringham, 28 L. J., Q. B. 
 
 123 402, 403 
 
 Parsey v. Edmonds, N. P. 1853 458 
 
 Parsons v. Alexander, 1 Jur., N. S. 
 
 660 418,434 
 
 — V. Gingell, 4 C. B. 550, 558 . . 237, 
 
 238, 364 
 
 ■ -— V. Sexton, 4 C. B. 905 .... 193, 195 
 
 Parton v. Crofts, 33 L. J., C. P. 189. .17 
 
 Pasley v. Freeman, 3 T. R. 56 . . 120, 147, 
 
 148, 151, 152, 153, 186 
 
 Pater.son r. Powell, 9 Bing. 320 424 
 
 Pateshall v. Tranter, 3 A. & E. 103. . 172 
 Patten v. Rea, 26 L. J., C. P. 235 . . 340 
 v. Rhymer, 29 L. J., M. C. 
 
 189 441 
 
 Patterson v. Gandasequi, 15 East, 69. . 126 
 
 Paul V. Dod, 2 C. B. 800 194 
 
 ■ -r. Hardwick, N. P. 1831 85 
 
 V. Summerhayes, L. R., 4 Q. B. 
 
 D. 9 ; 48 L. J., M. C. 33 ; 39 L. T., 
 
 N. S. 574 ; 27 W. R. 215 358 
 
 Payne v. Cave, 3 T. R. 148 4, 47 
 
 V. Whale, 7 East, 274 . . 118, 166, 170, 
 
 190 
 Peachey v. Roland, 13 C. B. 182 .... 318 
 
 Pear's case, 1 Leach, 212 250 
 
 Peek V. North Staffordshire Rail. Co., 
 
 32 L. J., Q. B. 241 271, 279, 280 
 
 Peer v. Humphrey, 2 A. & E. 495 . . 65 
 Peudlebury v. Grceuhalgh, L. R., 1 
 
 Q. B. D. 36 ; 45 L. J., Q. B. 3 ; 33 
 
 L. T., N. S. 372; 24 W. R. 98— 
 
 C. A 319 
 
xliv 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Percival r. Dudgeon, Appendix .... 345 
 
 V. Oldacre, N. P. 1865 .... 143 
 
 V. Spencer, Yelv. 45 204 
 
 Peto V. Hague, 5 Esp. 134 130 
 
 Pettingall r. Pettingall, Appendix . . 465 
 Pettitt r. Mitchell, 5 Scott, N. R. 
 
 740 30, 33 
 
 Phillpotts V. Evans, 5 M. & W. 475. . 204 
 
 Pickering v. Busk, 5 East, 38 41, 131 
 
 '■ — V. Dawson, 4 Taunt. 785 . . 119, 
 
 157 
 
 ■ V. Marsh, 43 L. J., M. C. 
 
 143; 22 W. R. 798 353 
 
 Pickford r. Grand Junction Rail. Co., 
 
 10 M. & W. 399 264 
 
 Pierce v. Corf, L. R., 9 Q. B. 217; 43 
 
 L. J., Q. B. 52 18, 19, 21, 27, 43 
 
 Pike r. Alcock, N. P. 1858 397 
 
 Pilmore v. Hood, 5 Bing. N. C. 97. . 49, 
 
 154 
 Pinder r. Button, 9 L. T., N. S. 269.. 117 
 Piatt V. Bromage, 24 L. J., Ex. 63. . 178 
 Plevins v. Downing, L. R., 1 C. P. D. 
 
 220 ; 45 L. J., C. P. 695 ; 35 L. T., 
 
 N. S. 263 185 
 
 PluckweU V. Wilson (Bart.), 5 C. & P. 
 
 375 320, 322, 328 
 
 Polhill V. Walter, 3 B. & Ad. 114 . . 150 
 Poole r. Longuevil, 3 Wms. Sauud. 
 
 290, n.(q) 244 
 
 Pope V. Whalley, 6 B. & S. 303 ; 1 1 
 
 Jur., N. S. 444 ; 34 L. J., M. C. 
 
 76; 11 L. T., N. S. 769 57 
 
 Potter V. Faulkner, 31 L. J., Q. B. 
 
 30 341 
 
 Poulton V. Lattimore, 9 B. & C. 265 . . 163, 
 
 171, 195 
 
 Povey r. Purnell, N. P. 1853 241 
 
 Powell V. Edmunds, 12 East, 6 44 
 
 ■ r. Salisbury, 2 Y. & J. 394 . . 262 
 
 Power v. Barham, 4 A. & E. 473 . . 138, 
 
 143, 149 
 
 r. Welles, Cowp. 818 167 
 
 V. Wells, Doug. 24, n. . . 166, 178 
 
 Powles r. Hider, 25 L. J., Q. B. 
 
 331 335 
 
 Prebble r. Boyhurst, 1 Swanst. 329 . 153 
 Frestwick v. Marshall, 7 Bing. 565 . . 27 
 Price V. Morgan, 2 M. & W. 55 .... 133 
 Prince v. Brunette, 1 Bing. N. C. 
 
 438 27 
 
 Pyke, Ex parte. Lister, in re, L. R., 
 
 8 Ch. D. 754 ; 47 L. J., Bk. 100 ; 
 
 38 L. T., N. S. 923 ; 26 W. R. 806 
 
 — C. A 421, 427 
 
 Pym V. Campbell, Ell. & Bl. 370 . . 24 
 
 V. Great Northern Rail. Co., 2 
 
 B. & S. 767 ; 4 B. & S. 396 .. 343, 
 345, 346 
 
 Q. 
 
 Quarman r. Burnett, 6 M. & W. 499 . . 252, 
 
 254 
 Quarrier t\ Colston, 1 Turn. & Ph. 
 147 427 
 
 R. 
 
 Raffles V. Wichelhaus, 33 L. J., Ex. 
 
 160 194 
 
 Rambert v. Cohen, 4 Esp. 213 188 
 
 Rambool v. SoojumnuU, 6 Moore's P. 
 
 C. 314 516 
 
 Randall v. Newson, L. R., 2 Q. B. D. 
 102; 46 L. J., Q. B. 259; 
 36L. T.,]Sr. S. 164; 25 W. 
 R. 113— C. A. .. 116, 121, 198 
 
 -y.Roper, 27 L. J.,Q.B.266.. 210 
 
 Randell«;.Trimen,25L.J.,C.P.307.. 199 
 Randleson v. Murray, 8 A. & E. 109 . . 229 
 Ransome r. Eastern Counties Rail. 
 
 Co., 26 L. J., C. P. 91 269 
 
 Raphael v. Bank of England, 17 C. B. 
 
 161 426 
 
 Rawson v. Johnson, 1 East, 203 .... 175, 
 
 185, 194 
 Rayner v. Mitchell, L. R., 2 C. P. D. 
 
 359 ; 25 W. R. 633 339 
 
 Read t'. Edwards, 11L.T.,N.S. 311.. 351, 
 
 360, 364 
 
 V. Fairbanks, 22 L. J., C. P. 206 . . 30, 
 
 201 
 
 r. King, N. P. 1858 351 
 
 Readhead r. Midland Rail. Co., L. R., 
 
 4 Q. B. 379 121, 245 
 
 Reading r. Menham, 1 M. & Rob. 234 . . 254 
 
 (Mayorof) r.Clarke,4 B.&Ald. . . 181 
 
 Redgate t'. Haynes, L. R., 1 Q. B. D. 
 
 89; 45L.J.,M.C.65; 33L.T.,N.S. 
 
 779 442 
 
 Reed r. Tate, N. P. 1846 321, 328 
 
 Reeve r. Palmer, 28 L. J., C. P. 168. . 193 
 Reeves r. Capper, 5 Bing. N. C. 136 . . 32 
 R. V. Aldi-idge, 4 Cox, C. C. 143.. 59, 181 
 
 — r. Ashton, 22 L. J., M. C. 1 .... 434, 
 
 441, 442 
 
 — V. Bailey, 4 Cox, C. C. 390, 397. . 147, 
 
 432, 434 
 
 — r. Banks, R. it R. 441 61, 251 
 
 — r. Bristol (Justices of) Banc. 1854 . . 436 
 
 — V. Brooks, 8 C. & P. 295. .62, 250, 251 
 
 — V. Bullock, 37 L. J., M. C. 47 ; L.R., 
 
 1 C. C. R. 115 63 
 
 — r. CarU,sle, 23 L. J., M. C. 109 . . 148 
 
 — v. Cavendish, 8 Ir. R., C. L. 178— 
 
 C. C. R 297 
 
TABLE OF CASES. 
 
 xlv 
 
 PAGE 
 
 R. V. Chappie, E. & R. 77 62 
 
 — r. Child (John), C. C. C. 1858 .... 355 
 ■ — r. Clark and Jcrvis, 1853 432 
 
 — V. Cook, Appendix 296, 297 
 
 — V. Cooper, 16 Jur. 750 62 
 
 — V. Cridland, 7 E. & B. 853 363 
 
 — V. Critchlow, 6 W. R. 681 263 
 
 — r. Crump, 1 C. & P. 658 62 
 
 — V. Dale, 7 C. & P. 352 61 
 
 — r. Dant, C. C. C. 1865 355 
 
 — V. Dixon, 10 Mod. 336 457 
 
 — V. Gardner, N. P. 1851 428 
 
 — V. Goldsmith, 12 Cox, C. C. 597. . 67 
 
 — V. Gompertz, 9 Q. B. 824 160 
 
 — V. Haigh, Liverpool Winter Assizes 68 
 
 — V. Harvey, 1 Leach, 467 61 
 
 • — V. Haywood, Russ. & Ry. 16 ... . 62 
 
 — V. Henson, 1 Dears. & Pearce, C. C. 
 
 24 90 
 
 — V. Holmes, 22 L. J., M. C. 122 . . 437 
 
 — V. Horan, 6 Ir. R., C. L. 293— C. 
 
 C. R 67 
 
 — V. Huggins, 2 Ld. Raym. 1583 . . 347, 
 
 355 
 
 — r. Ivens, 7 C. & P. 219 217 
 
 — V. Janson, 4 Cox, C. C. 82 62 
 
 — V. Jeans, 1 C. & K. 539 62 
 
 — r. Jones, 22 L. T., N. S. 298 ; 11 
 
 Cox, C. C. 544 298 
 
 — V. Kayley, 10 L. T., N. S. 339 . . 362 
 
 — V. Kendall, 30 L. T., N. S. 345; 12 
 
 Cox, C. C. 598— C. C. R 61 
 
 — V. Kenrick, 5 Q. B. 62 147, 148 
 
 — V. Kew, 12 Cox, C. C. 355 298 
 
 — V. Kilderby, 1 Saund. 312, n. 2 . . 229 
 
 — V. Lewis, 1 1 Cox, C. C. 484 51 
 
 — V. Liston, 5 T. R. 240 434, 458 
 
 — V. Luellin, 12 Mod. 445 217 
 
 — V. Mason, Loach, C. C. 548 457 
 
 — V. Mogg, 4 C. fc P. 364 63 
 
 — V. Murray, 5 Cox, C. C. 509 (Ir.)..299 
 
 — V. O'Connor, 45 L. T., N. S. 512— 
 
 C. C.R 431 
 
 — V. Orbell, 6 Mod. 42 428 
 
 — r. Parker, 33 L. J., M. C. 135 .... 363 
 
 — V. Patch, 1 Leach, 521 61 
 
 — r. Patey, 2 W. Bla. 721 62 
 
 — V. Peach, 1 Burr. 548 432 
 
 — V. Pear, 1 Leach, 521 61 
 
 — i\ Pembliton, L.R.,2C.C. R. 119; 
 
 43 L. J., M. C. 91 63 
 
 — r. Phillips, 2 East, P. C. c. 16, s. 98 . . 62 
 
 — i\ Pitman, 2 C. & P. 423 60 
 
 — V. Pratt, 1 Mood. C. C. 185 61 
 
 — T. , 24 L. J., M. C. 113 .... 363 
 
 — V. Pywell, 1 Stark. N. P. C. 402 . . 147 
 
 — i'. Read, 6 Cox, C. C. 135 147 
 
 — r. Roach, 1856 436 
 
 — r. Rogier, 1 B. & C. 272 449, 457 
 
 PAGE 
 
 R. V. Rymer, L. R., 2 Q. B. D. 13G ; 
 
 46 L. J., M. C. 108; 35 L. T., 
 
 N. S. 744; 25W. R. 415 .... 217 
 
 — V. Saddlers' Co., 32 L. J., Q. B. 
 
 337 151, 153, 159 
 
 — V. Saint Nicholas, Gloucester .... 463 
 
 — V. Sanders, 9 Q. B. 235 457 
 
 — V. Sheppard, 9 C. & P. 123 60, 147 
 
 — v. Silvester, 33 L. J., M. C. 79 36 
 
 — r. Smith, 1 Mood. C. C. 473 240 
 
 — V. , 12 Cox, C. C. 597 67 
 
 — V. Southwestern Rail. Co., 1 Q B. 
 
 581 463 
 
 — IK Stancliffe, 11 Cox, C. C. 318 . . 67 
 
 — V. Swiudall, 2 C. & K. 230 297 
 
 — V. Timmins, 7 C. & P. 500 298, 325 
 
 — v. Tivey, 1 C. & K. 704 63 
 
 — V. Walker, 1 C. & P. 32 297 
 
 — V. Welch, 45 L. J., M. C. 17 .... 63 
 
 — V. Wheatley, 2Burr. 1127 . . 147, 148, 150 
 
 — V. Whitney, 1 Mood. C. C. 3 . . . . 62 
 • — V. Wolverhampton (Justices), L. 
 
 R., 6 Q. B. 514; 40 L.J., M. 
 C. 209; 24 L. T., N. S. 508; 
 19 W. R. 890 437 
 
 — i\ Wood, 3 B. & Ad. 657 457 
 
 Reese River Silver Mining Co. v. 
 
 Smith, L. R., 4 H. L. 64, 69 ; 39 
 
 L. J., Ch. 849 154 
 
 Reuss V. Picksley, L. R., 1 Ex. 342, 
 
 Ex. Ch 26 
 
 Richards v. Porter, 6 C. &B. 438 . 20, 21 
 
 V. Symons, 8 Q. B. 90. .242, 243, 
 
 244 
 Richardson v. Brown, 8 Moore, 338 . . 142 
 
 V. Dunn,30L.J.,C.P.44..199 
 
 V. North Eastern Rail. 
 
 Co.,L. R., 7 C. P. 75; 
 41 L. J., C. P. 60; 26 
 
 L. T., N. S. 131 268 
 
 V. Sylvester, L. R., 9 Q. 
 
 B. 34 ; 43 L. J., Q. B. 1 155 
 
 Richmond v. Smith, 8 B. & C. 9. .218, 221 
 Rickard r. Moore, 38 L. T., N. S. 
 
 841— C. A 12, 13 
 
 Ricketts v. East India Docks and Bir- 
 mingham Junction Rail. Co., 21 L. 
 
 J., C. P. 201 365 
 
 Ridgway v. Wharton, 27 L. J., Ch. 46 . . 18 
 
 Rigby V. Hewitt, 5 Ex. 242 306, 344 
 
 Rigg V. Earl of Lonsdale, 1 H. & N. 
 
 923 360 
 
 Rimell r. Sampayo, 1 C. & P. 254 251 
 
 Ring V. Roxbrough, 2 C. & J. 418.. 181, 
 
 183 
 Rishton v. Whatmore, L. R., 8 Ch. D. 
 
 467; 20 W. R. 827 19, 43 
 
 Roberts v. Brett, 6 C. B., N. S. 611, 
 
 633 175 
 
xlvi 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Roberts v. Great Western Rail. Co., 
 
 4 Jur. N. S. 1240 367 
 
 -: V. Humphreys, L. R., 8 Q. 
 
 B. 483; 42 L. J., M. C. 
 147; 29 L. T., N. S. 387; 
 
 21 W. R. 885 216 
 
 . V. Jenkins, 1 Foster (N. H.), 
 
 116 70 
 
 Robertson r. Howard, L. R., 3 C. P. 
 
 280; 47 L. J., C. P. 480 181 
 
 Robinson v. Great Western Rail. Co., 
 35 L. J., C. P. 123; H. 
 
 &R. 97 276, 281 
 
 . V. Rutter, 24 L. J., Q. B. 
 
 250 41, 53 
 
 r. Southwestern Rail. Co., 
 
 C. P. Banc., May 1, 1865 . . 285 
 
 V. Walter, 3 Bulst. 270 ..226, 
 
 227 
 -, Pop. 127 
 
 Roddy i: Stanley, 5 Ir. Jur. 10 .... 438 
 
 Rodgers r. Nowill, 5 C. B. 109 145 
 
 Roo'ersr.Ingham,L.R.,3Ch.D.351.. 178 
 Rohde r. Thwaites, 6 B. & C. 388 . . 184 
 Rolinr. Steward, 23L. J., C. P. 148. . 201 
 Rolph V. Crouch, L. R., 3 Ex. 44 ; 
 
 37 L. J., Ex. 8 210 
 
 Rooth r. North Eastern Rail. Co., 
 L. R., 2 Ex. 173; 36 L. J., 
 
 Ex. 83 280 
 
 r. Wilson, 1 B. & Aid. 59 . . 241 
 
 Roper v. Johnson, L. R., 8 C. P. 167; 
 
 42L.J.,C.P.65;28L.T.,N.S.296..204 
 Roscorla v. Thomas, 3 Q. B. 234 .... 181 
 Rosewarner.Billing,10Jur.,N.S.496..422 
 Rosse V. Biamstead, 2 Rol. Rep. 438 . . 226 
 Roiirke r. Short, 5 E. & B. 901 .... 417 
 Routledge r. Grant, 4 Bing. 653 .... 47 
 Rowley v. London and North Western 
 
 Rail. Co., L. R., 8 Ex. 221 ; 42 L. 
 
 J., Ex. 153 ; 29 L. T., N. S. 180— 
 
 Ex. Ch 343, 346 
 
 Rnshforth r. Hadtiekl, 7 East, 229.. 233 
 
 S. 
 
 Sadler v. Henlock, 24 L. J., Q. B. 
 
 138 316, 318, 319 
 
 . r. Smith, 10 B. & S. 17; L. R., 
 
 5 Q. B. 40; 39 L. J., Q. B. 17; 21 
 L. T., N. S. 502; 18 W. R. 148— 
 
 Ex. Ch 406 
 
 Salmon r.Ward, 2 C. & P. 211. . 116, 139 
 
 Samuel v. Wright, 2 Esp. 263 252 
 
 Sanderson r. Bell, 2 C. & M. 304, 312 . . 233 
 Sandysr.Eloreuce,47L. J.,C.P.598. . 221 
 
 PAGE 
 Sarlr. Bourdillon, 26 L. J., C. P. 78.. 20, 
 
 26 
 Saunders z'.Plummer,Orl.Bridg.227.. 214, 
 
 220, 224 
 
 V. Topp, 4 Exch. 394 .... 7, 8 
 
 Saunderson v. Jackson, 2 B. & P. 238 . . 25 
 Savage r. Madder, 36 L. J., Ex. 178; 
 
 16L. T.,N. S. 600; 16 W. R. 910.. 399 
 
 Saxby a. Wilkm, 1 D. & L. 281 .... 181 
 
 Scarfe v. Morgan, 2 M. & W. 270 . . 226, 
 
 232, 233, 234, 235, 243 
 
 Scattergood r. Sylvester, 19L. J., Q. B. 
 
 447 66 
 
 Scetchett r. Eltham, Freem. 534 354 
 
 Schneider v. Heath, 3 Camp. 508 . . 154, 158 , 
 
 V. Norris, 2 M. & S. 286 . . 26 
 
 Scholefield v. Robb, 2 M. & R. 210. . 71, 74, 
 
 85, 92, 191 
 Scotland (Bank of) r.Watson, 1 Dowl. 
 
 45 131, 197 
 
 Scott r. Ea.stern Counties Rail. Co., 
 
 12 M. & W. 33 6 
 
 V. England, 2 D. & L. 524. . 51, 175 
 
 t'.LondonDockCo. 13W.R.410..328 
 
 Searle v. Laverick, L. R., 9 Q. B. 
 . 122 ; 43 L. J., Q. B. 43 ; 30 L. T., 
 
 N. S. 89 239 
 
 Semple's case, 1 Leach, 420 250 
 
 Settle V. Garner, N. P. 1857 90 
 
 Seymour t'. Greenwood, 7 H.& N. 355. . 336, 
 
 337 
 Sharman r. Brandt, L. R., 6 Q. B. 
 
 720 ; 40 L. J., Q. B. 312 27, 43 
 
 Sharp r. Powell, L. R., 7 C. P. 253 ; 
 
 41L.J.,C.P.95;26L.T.,N.S.436..344 
 Shaw r. Morley, L. R., 3 Ex. 137; 
 
 37 L. J., M. C. 105 450 
 
 Sheldon r. Cox, 3 B. & C. 420 177 
 
 Shelley v. Ford, 5 C. & P. 313 250 
 
 Shelton v. Livius, 2 C. & J. 416 44 
 
 Shepherd v. Bristol and Exeter Rail. 
 Co., L. R., 3 Ex. 189; 37 
 
 L. J., Ex. 113 283 
 
 V. Kain, 5 B. & A. 240 . . 138, 
 
 149, 156 
 Sherbon r. Coleback, 2 Ventr. 175 .. 430 
 Sheirod r. Longden, 21 Iowa. 518 .. 211 
 Shrewsbuiy r. Blount, 2M. & G. 475. .151, 
 
 154, 155 
 
 Siegel r. Eisen, 41 Cal. 109 330 
 
 Sieve Wright v. Archibald, 20 L. J., 
 
 Q. B. 529 17 
 
 Sigel V. Jebb, 3 Stark. N. P. C. 2 . . 434 
 Siramonds r. Humble, 13 C. B., N. S. 
 
 258 9 
 
 Simmons i: Swift, 4 B. & C. 857 .... 184 
 Simons r. Great Western Rail. Co., 
 
 26 L. J., C. P. 25 273, 276 
 
 Simpson v. Bloss, 7 Taunt. 246 443 
 
TA15LE OF CASES. 
 
 xlvii 
 
 PAGE 
 
 Simpson v. Potts, Appendix. .. ,96, 103, 
 
 178 
 Sims V. Marryat, 17 Q. B. 9 ... .113, 114 
 Simson v. London General Omnibus 
 Co., L. R., 8 C. P. 390 ; 42 L. J., 
 C. P. 112 ; 28 L. T., JST. S. 560 ; 21 
 
 W. R. 595 300, 325 
 
 Singleton r. Ea.stern Counties Rail. 
 
 Co., 7 C. B., N. S. 287 314 
 
 Skrine r. Elmore, 2 Camp. 407 . .187, 190 
 
 Slater v. Swan, 2 Stra. 872 331 
 
 Sleath V. Wilson, 9 C. & P. 608 . . 337, 338, 
 
 339 
 Slim V. Great Northern Rail. Co., 14 
 
 C. B. 647 ^ 285 
 
 Smart v. Allison, Appendix 71, 93 
 
 V. Hyde, 8 M. & W. 728 . . 182, 197 
 
 Smeed v. Foord, 28 L. J., Q. B. 178 . . 199, 
 
 200 
 Smethui-st r. Mitchell, 28 L. J., Q. B. 
 
 241 ^ 126 
 
 Smith r. Anderson, L. R., 15 Ch. D. 
 
 269 440 
 
 V. Bickmore, 4 Taunt. 474 .... 432 
 
 V. Chance, 2 B. & A. 755 185 
 
 r. Cook, L. R., 1 Q.'B. D 79 ; 
 
 45L. J.,Q. B. 122; 33 L. T., 
 
 N. S. 722 241, 350 
 
 V. Deerlove, 6 C. B. 132, n 214, 
 
 220, 223, 224 
 
 . r. Ferrand, 7 B. & C. 19 35 
 
 • V. Great EasternRail. Co., L.R., 
 
 2 C. P. 153 351 
 
 V. Green, L. R., 1 C. P. D. 92 ; 
 
 45 L. J., C. P. 48 198, 211 
 
 V. Hudson, 34 L. J., Q. B. 145. . 14 
 
 V. Hughes, L. R., 6 Q. B. 597 ; 
 
 40L. J.,Q. B. 221; 25L.T., 
 
 N. S. 329 151 
 
 . r. Kay, 7 H. of L. Cas. 775 . . 150 
 
 r. Lawrence, 2 M. & R. 1 .... 252 
 
 r. Lindo, 5 C. B., N. S. 587 . . 421 
 
 r. Littledale, 15 W. R. 69, C. P. . . 404 
 
 V. M'Namara, N. P. 1853 .... SOI 
 
 V. Mundy, 29 L. J., Q. B. 172. . 34 
 
 • V. Neale, 26 L. J., C. P. 143 . . 20 
 
 r. O'Brien, 11 L. T., N. S. 346. . 104, 
 
 136, 137 
 
 r. Par.sons, 8 C. & P. 199 122 
 
 . r. Rolt, 9 0. & P. 696 . . 185, 187, 194 
 
 r. Sparrow, 4 Bing. 88 36 
 
 Snead r. Watkins, 26 L. J., C. P. 
 
 57 223 
 
 Southcote's case, 4 Rep. 83 269 
 
 Southerne v. Howe, 2 Rol. Rep. 5 . . 134 
 Sowerby r. Wadsworth, 3 F. & F. 
 
 734 389 
 
 Spartali r. Benecke, 10 C. B. 212 . . 194 
 Specot's case, 5 Rep. 58a, p. 118. . . . 430 
 
 PAGE 
 
 Spice V. Bacon, L. R., 2 Q. B. D. 463; 
 
 46 L. J., Q. B. 713; 36 L. T., N. S. 
 
 896 218 
 
 Spicer v. Barnard, 28 L. J. , M. C. 176 . . 363 
 Springwell v. Allen, Aleyn, 91 .... 150 
 
 Squire r. Hunt, 3 Price, 68 185 
 
 ■ r. Wheeler, 16L. T., N. S. 93. .218 
 
 Stables r. Eley, 1 C. & P. 614 340 
 
 Stacey v. Live.say, N. P. 1856 241 
 
 r. Wliiteiiurst, 13 W. R 384 . .362 
 
 Stadhard r. Lee, 32 L. J. , Q. B. 75 . . 29 
 
 Standish v. Ross, 3 Ex. 527 178 
 
 Stanley r. Dowdeswell, L. R., 10 C. P. 
 
 102 ; 23 W. R. 389 23 
 
 Staunion v. Da\as, Salk. 404 221 
 
 Staunton r. Wood, 16 L. T. 486 .... 33 
 Stead r. Dawber, 10 A. & E. 57 .... 24 
 Steinthal v. Myers, Nov. 23, 1855 .. 170 
 
 Stevens v. Lee, N. P. 1853 54 
 
 Steward r. Coesvelt, 1 C. & P. 23 . . 123 
 Stilesr. Cardiff Steam Navigation Co., 
 
 10 Jur., N. S. 1199 352 
 
 Stone V. Mar.sh, 6 B. & C. 551 66 
 
 Storey v. Ashton, L. R., 4 Q. B. 476; 
 38 L. J., Q. B. 223; 17 W. 
 R. 727 339 
 
 r. Robinson, 6 T. R. 138 . . . . 364 
 
 Storr r. Scott (Bart.), 6 C. & P. 241 . . 413 
 Street v. Blay, 2 B. & Ad. 456. . 164, 167, 
 
 168, 169, 193, 194, 195 
 Strode v. Dyson, 1 Smith, 400 .. 132, 190 
 Stuart r. Wilkins, Doug. 18 .... 1 1 1, 123 
 Stuckfield r. Hind, N. P. 1859 .... 31, .35 
 Stucley r. Baily, 31 L. J., Ex. 483 . . 119 
 Sunboif V. Alford, 3 M. & W. 248 . . 224 
 Sutton r. Moody, Lord Raym. 250 . . 300 
 
 V. Temple, 12 M. & W. 60 . . 120, 
 
 242, 251 
 Suydam v. Grand St. Rail. Co., 41 
 
 Barb. 365 330 
 
 Sweet V. Lee, 3 M. & Gr. 452, 460 . . 25 
 Sweeting r. Turner, L. R., 7 Q. B. 
 
 310 : 41 L. J., Q. B. 58 ; 25 L. T., 
 
 N. S. 796; 20 W. R. 185 52 
 
 Swift V. Jewsbury, L. R., 9 Q. B. 
 
 391 ; 43 L. J., Q. B. 561 . . 55, 156 
 r. Winterbotham, L. R., 8 Q. B. 
 
 244, 254 125, 155 
 
 Swinfen v. Lord Chelmsford, 5 H. & 
 
 N. 890, 921 186 
 
 Swire v. Francis, L. R., 3 App. Cas. 
 
 106; 47 L. J., P. C. 18 125 
 
 Sykes v. Beadon, L. R., 11 Ch. D. 
 
 170 440 
 
 • V. Giles, 5 M. & W. 650 . .52, 127 
 
 r. North Ea.stern Rail. Co., 44 
 
 L. J., C. P. 191 ; 32 L. T., N. S. 
 
 199 ; 23 W. R. 473 343 
 
 Symondst'. Carr, 1 Camp. 361 ..119, 181 
 
xlvili 
 
 TABLE OF CASES. 
 
 T. 
 
 PAGE 
 
 TapHn r. Florence, 10 C. B. 744 .... 43 
 Tarlinff v. Baxter, 6 B. & C. 3G4. .28, 30, 
 
 31, 32 
 Tarrant t^ Webb, 25 L. J., C. P. 261. .341 
 Tarry v. Ashtou, L. R., 1 Q. B. D. 
 314; 45L. J.,Q. B. 260 ; 34L.T., 
 
 N. S. 97 ; 24 W. E. 581 318 
 
 Tate V. Gleed, C. B., H. T. 24 Geo. 3. .244 
 
 Taylor v. Ashtou, 11 M. & AV. 413 . .150, 
 
 ^ 154 
 
 r. BuUen, 5 Ex. 779 156 
 
 . V. Chester, L. R., 4 Q. B. 309; 
 
 38 L J., Q. B. 225 193 
 
 . r. Great AVestera Rail. Co., 
 
 L. R., 1 C. P. 385; 35 L. 
 
 J., C. P. 210 264, 290 
 
 V. Greeuhalgh, 24 W. R. 311 
 
 p A 319 
 
 V. Humphries'," 13 W."r. 136. .210 
 
 V. Wakefield, 6 El. & Bl. 765. . 8 
 
 Tempest v. Fitzgerald, 3 B. & Ad. G80 . . 13 
 
 . . V. Kilner, 2 C. & P. 308 . . 184, 
 
 185 
 Templeman v. Haydon, 19 L. T. 218. .307 
 Thistlewoodr. Cracroft, 1 M. & S. 500 . . 444 
 
 Thom r. Biglaud, 8 Ex. 725 186 
 
 Thomas v. Morgan, 2 C. M. & R. 496 . . 350 
 Thompson v. Bertram, 23 Ark. 730. . 70 
 
 r. Davenport, 9 B. & C. 
 
 86 49, 124, 126 
 
 r. Lacy, 2 B. & Aid. 286. .214 
 
 Thoruborow r. Whiteacre, 2 Ld. 
 
 Raym. 1164 203 
 
 Thoruett r. Haines, 15 L. J., Ex. 230. .51 
 Thorogoodi'. Bryan, 8 C. B. 130.. 300, 321 
 
 Thorpe v. Colman, 1 C. B. 199 445 
 
 V. Thorpe, 1 Ld. Raym. 665 . . 33 
 
 Threfall v. Borwick, L. R., 10 Q. B. 
 
 210; 44 L. J., Q. B. 87; 32 L. T., 
 
 N. S. 32, Ex. Ch 223 
 
 Tollett V. Thomas, L. R., 6 Q. B. 
 
 514; 40 L. J., M. C. 209; 24I-. T., 
 
 N. S. 508; 19 W. R. 890 437 
 
 Tooke V. HoUings worth, 5 T. R. 215.. 32 
 Toomey v. London, Brighton and S. C. 
 
 Rail. Co.,3C. B.,N. S. 146 326 
 
 Torrance v. Bolton, L. R., 8 Ch. 118; 
 
 42L. J., Ch. 177 40 
 
 Tourrett v. Cripps, 48 L. J., Ch. 567; 
 
 27 W. R. 706 26 
 
 Towers v. Barrett, 1 T. R. 133. .166, 169, 
 170, 178, 192 
 Trent and Mersey Navigation Co. v. 
 
 AVood, 2 Esp. r27 264 
 
 Trimble i\ Hill, L. R., 5 App. Cas. 
 
 3i2 394, 433 
 
 Tuff V. Warman, 27 L. J., C. P. 322. .307 
 
 PAGE 
 
 Turberville r. Stampe, 1 Lord Raym. 
 
 264 340 
 
 Turley r. Thomas, 8 C. & P. 103 ... . 330 
 Turnbull v. Appleton, 45 J. P. 469. . 437 
 Turner r. Hey land, L. R., 5 C. P. D. 
 432 ; 48 L. J., C. P. 535 ; 41 L. T., 
 
 N. S. 556 212 
 
 Tarrell v. Crawley, 18 L. J.,Q. B. 155 . . 225 
 Tyers v. Rosedale, &c. Iron Co., L. R., 
 8 Ex. 305 ; Ex. Ch., L. R., 10 Ex. 
 195 ; 44 L. J., Ex. 130 ; 33 L. T., 
 N. S. 56 205 
 
 U. 
 
 Udell V. Atherton, 7 H. & N. 172 . . 125 
 Underwood z'.NicholLs, 25 L. J., C. P. 
 
 79 34 
 
 Urquhart v. Macpherson, L. R., 3 
 
 App. Ca.s. 831 159 
 
 Uther V. Rich, 10 A. & E. 784 426 
 
 Valpy i>. Oakeley, 16 Q. B. 941 . . . . 
 Varney r. Hickman, 5 C. B. 281 . . 396, 
 
 Venables r. Smith, L. R., 2 Q. B. D. 
 279; 46L. J., Q. B.470; 36L.T., 
 N. S. 509 ; 25 AV. R. .584 .... 335, 
 
 Vernon v. Keys, 12 Ea.st, 637 153 
 
 Vicars r. AVilcocks, 8 East, 3 . 
 
 205 
 416, 
 417 
 
 342 
 , 1.54 
 
 198 
 
 W. 
 
 Wadhurst v. Damme, Cro. Jac. 44 . . 356 
 AVain V. AVarlters, 2 Sm. L. C, 8th 
 
 ed. 261 6 
 
 Waite r. North-Eastern Railway Co., 
 
 E. B. & E. 719 321 
 
 AVakeman r. Robinson, 1 Bing. 213 . . 323 
 AValker r. Holsiugton, 43 Vt. 608. .84, 85 
 
 — r. Laogham, N. P. 1865 442 
 
 r. Mellor, 1 1 Q. B. 478 1 94 
 
 AVallace r.AA^oodgate, 1C.&P.275 . . 226, 238 
 AValler v. Midland Great AVe.stem 
 
 Rail. Co., L. R.,4lr. 376.. 293 
 r. South -Eastern Rail. Co., 32 
 
 L. J., Ex. 205 341 
 
 AValley r. Holt, 35 L. T., N. S. 631 . .218 
 AVallingford v. Mutual Society, L. R., 
 
 5 App. Cas. 685; 43 L. T., N. S. 
 
 258 ; 29 W. R. 81~H. L 440 
 
 AValmesley v. Matthews, 3 Scott, N. R. 
 
 584 408, 411 
 
 AValioole v. Saunder.s, 7D. & R. 130. .399, 
 
 434 
 Walter r. Haynes, R. & M. 149 .... 34 
 
TABLE OF CASES. 
 
 xlix 
 
 PAGE 
 
 Wardv. General Omnibus Co., 42 L. J., 
 C. P. 265 ; 28 L. T., N. S. 850— Ex. 
 
 Ch 336 
 
 V. Hobbs, L. E,., 4 App. Gas. 13 ; 
 
 48 L. J., C. P. 281 ; 40 L. T., N. S. 
 73; 27 W. E. 114.. ..59, 158, 211, 212 
 
 Ware v. Juder, 2 C. & P. 351 181 
 
 Warlow V. Harrison, 29 L. J., Q. B. 14 . . 47 
 Warner y.Willington, 25 L. J.,Ch 662. .20 
 Warwicke v. Noakes, Peake, N. P. 98 . . 34 
 Washburn v. Cuddihy, 8 Gray, 430 . . 84, 85 
 Waterhouse v. Skinner, 2 B. & P. 447 . . 189 
 Watkins r. Major, L.R., 10 C. P. 662; 
 44L. J.,M. C. 164; 33L. T.,N. S. 
 
 352 ; 24 W. R. 164 262 
 
 AYatson v. Ambergate, Nottingham 
 and Boston Pail. Co., 15 
 
 Jur. 448 281, 292 
 
 — V. Denton, 7 C. &P. 86 . . 78, 205, 209 
 
 V. Earl of Charlmont, 12 Q. B. 
 
 862 151 
 
 r. Martin, 13 W. P. 144 ... . 436 
 
 Watts V. Ainsworth, 1 H. & C. 83 . . 20 
 Wayde v. Lady Carr, 2 D. & R. 256 . . 329 
 
 Weall V. King, 12 East, 452 180 
 
 Weaver v. Bush, 8 T. R. 78 364 
 
 Webb V. Bell, 1 Sid. 440 364 
 
 r. Fairmanner, 3 M. & W. 473. . 185, 
 
 194 
 
 • V. Fox, 7 T. R. 397 28 
 
 V. Great Western Rail. Co., 26 
 
 W. R. Ill 282 
 
 Weir v. Bamett, L. R., 3 Ex. D. 32. . 125 
 Weller v. Deakins, 2 C. & P. 618 ... . 398, 
 408, 410, 411 
 Wells ;•. Abrahams, L. R., 7 Q. B. 557 ; 
 
 41 L. J., Q. B. 306 65 
 
 V. Porter, 3 Scott, 141 423 
 
 Welsh V. Lawrence, 2 Chit. 262 307 
 
 Wentworth v. Outhwaite, 10 M. &W. 
 
 452 33 
 
 Westbrook v. Griffith, Moor, 876 214, 
 
 226, 227 
 Weston r.Downcs, Doug. 23.. 166, 171, 178 
 Whatman v. Pearson, L. R., 3 C. & P. 
 
 422 337 
 
 Wheatley v. Patrick, 2 M. & W. 650 . . 262 
 Wheeler v. Collier, M. & M. 126 ... . 51 
 Wheelton v. Hardisty, 27 L. J., Q. B. 
 
 241 144, 145 
 
 White r. Garden, 20 L. J., C. P. 166 . . 159 
 
 V. Great Western Rail. Co., 
 
 26 L. J., C. P. 158.... 276, 278 
 
 ■ V. Spettigiie, 13 M. & W. 603 . . 66 
 
 Whitehead v. Anderson, 9 M. & W. 
 
 518 32 
 
 Whitelcy r. Pepper, L. R., 2 Q. B. D. 
 276; 46L. J.,Q.B. 436; 36L.T., 
 
 N. S. 588 ; 25 W. R. B07 318 
 
 O. 
 
 PAGE 
 
 Wicksv.Macnamara,27L.J.,Ex.419. . 328 
 
 Wieler v. Schilizzi, 17 C. B. 619 116 
 
 Wiggett V. Fox, 25 L. J., Ex. 188 . . 341 
 Wilkes V.Atkinson, 1 Marsh. 412. .175,185 
 Wilkinson r. Evans,L. R. , 1 C. P. 41 7 . . 21 
 
 V. Godefroy, 9 A. & E. 536 . . 393 
 
 V. L'Eaugier, 2 Y. & C. 366 . . 443 
 
 , Willan V. Carter, N. P. 1853 79, 153 
 
 Williams v. Barton, 3 Bing. 145 28 
 
 V. Byrnes, 9 Jur., N. S. 
 
 363 18, 26 
 
 V. Evans, L. R., 1 Q. B. 352; 
 
 35 L. J., Q. B. 111.. 52 
 
 V. Hide, Palm. 548 262 
 
 V. Hill, Pabn. 548 261 
 
 V. Holmes, 22 L. J., Ex. 
 
 283 42, 223 
 
 V. Jordan, L. R., 6 Ch. D. 
 
 517; 46 L. J., Ch. 
 
 681 18, 26 
 
 V. Lake, 29 L. J., Q. B. 1 . . 18, 26 
 
 V. Lloyd, Jones on Bail- 
 
 ments, 179 261 
 
 V. Millington, 1 H. Bla. 81 . .39, 
 
 41, 42 
 
 v. Paul, 6 Bing. 653 37 
 
 V. Richards, 3 C. & K. 82. . 331 
 
 r. Trye, 23 L. T. 72 423 
 
 Williamson v. Allison, 2 East. 453 . . 150 • 
 V. Barton, 31 L. J., Ex. 
 
 170 49, 54 
 
 Willoughby r. Horridge, 22 L. J., 
 
 C. P. 90 292 
 
 Wilson V. Brett, 11 M. & W. 113 ... . 260 
 
 V. Cole, 36 L. T., N. S. 702. . 417 
 
 ■ V. Merry, L. R., 1 H. L. 326, 
 
 341 319 
 
 Wiltshire «;. Willett, 11 C. B., N. S. 
 
 240; 31 L. J., M. C. 8 57 
 
 Wise v. Great AVestern Rail. Co., 1 
 
 H. & N. 63 ; 25 L. J., Ex. 258 . . 274 
 Wiseman v. Booker, L. R., 3 C. P. D. 
 
 184; 38 L. T., N. S. 392; 26 
 
 W. R. 634 365 
 
 Wood V. Leadbitter, 13M. &W. 838.. 413 
 
 r. Midgeley, 23 L. J., Ch. 553 . . 17 
 
 V. Smith, 4 C. & P. 45 ... .116, 117 
 
 Woodbvrry v. Robbins, 10 Cush. 
 
 (Mass.) 520 89 
 
 Woodin V. Burford, 2 Cr. & M. 391 . . 132, 
 
 190, 197 
 Woodleyt'.Coventry,32L. J., Ex.185 . . 14 
 WoodrofPe r. Farnham, 2 Vern. 291 . . 430 
 Woodward's case, 2 East, P. C. 653. . 240 
 
 Woolf V. Beard, 8 C. & P. 373 306 
 
 Woolfe V. Home, L. R., 2 Q. B. D. 
 
 355 ; 46 L. J., Q. B. 534 ; 36 L. T., 
 
 N. S. 705 ; 25 W. R. 728 49 
 
 Worth r. Gilling, L. R., 2 C. P. 1 . . 351 
 
 d 
 
TABLE OF CASES, 
 
 PAGE I 
 
 Wray v. Lister, 2 Str. 1110 204 | 
 
 Wren v. Pocock, 34 L. T., N. S. G97 . . 354 
 
 Wright V. Bii-d, 1 Price, 20 39 
 
 ■ r. Dannah, 2 Camp. 203 . . 27, 43 
 
 • r. Freeman, 48 L. J., C. P. 
 
 276; 40L. T.,N. S. 134.. 42, 115 
 
 V. Johnson, 1 Sid. 440, 447 . . 183 
 
 v. Leonard, 30 L. J., Ch. 365 . . 161. 
 
 V. London General Omnibiis 
 
 Co., L. P., 2 Q. B. D. 271 ; 
 
 40 L. J., Q. B. 429 ; 36 L. 
 
 T.,N. S. 590; 25W.R.647.. 344 
 v. London and North -Western 
 
 Eail. Co., L. P., 10 Q. B. 
 
 298; L. P., 1 Q. B. D. 252; 
 
 45 L. J., Q. B. 570 ; 33 L. 
 
 T., N. S. 830— C. A 341 
 
 Wright V. Pearson, L. R., 4 Q. B. 582; 
 
 38 L. J., Q. B. 312; 20 L. 
 
 T.,N.S.849;17W.R.1099.. 352 
 Wrightiip V. Chamberlain, 7 Scott, 
 598 210 
 
 Y. 
 
 York V. Greenhaugh, 2 Lord Raym. 
 
 867 220, 237, 238 
 
 r. Grindstone, 1 Salk. 388 .... 220 
 
 Z. 
 
 Znntz V. South Eastern Rail. Co., L. 
 P., 4 Q. B. 539; 38 L. J., Q. B. 
 209 ; 20 L. T., N. S. 873 270 
 
TABLE OF STATUTES. 
 
 PAGE 
 
 12 Ricli. 2, c. G 370 
 
 1 1 Hen. 4, c. 4 370 
 
 11 Hen. 7, e. 13 371 
 
 22 Hen. 8, e. 7 371 
 
 27 Hen. 8, c. 6 371 
 
 32 Hen. 8, c. 13 102, 371, 372, 375 
 
 33 Hen. 8, c. o 372 
 
 33 Hen. 8, c. 9, ApiJendix. .370, 372, 373, 
 
 459, 4C0, 461, 484 
 
 1 Edw. 6, c. 5 374 
 
 2 & 3 Ph. & M. c. 7, AiDpendix. .64, 374, 
 
 375, 486 
 2 & 3 Ph. & M. c. 9 374 
 
 5 Eliz. c. 19 375 
 
 8 EUz. c. 8 375 
 
 31 Eliz. c. 12, Appendix 64, 375, 488 
 
 43 EUz. c. 6 73 
 
 21 Jac. 1, c. 28 372, 375 
 
 16 Car. 2, c. 7 376, 377, 446 
 
 25 Car. 2, c. 6 371 
 
 29 Car. 2, c. 3 ..,.5, 6, 7, 10, 11, 15, 16, 
 
 23, 27, 184, 187, 391 
 
 29 Car. 2, c. 7 35, 36, 37, 235 
 
 10 & 11 Will. 3, 0. 17. .377, 434, 435, 438 
 
 6 Anne, c. 16 421 
 
 9 Anne, c. 6 378, 435 
 
 9 Anne, c. 14 378, 444, 445, 446 
 
 9 Anne, c. 19 377 
 
 10 Anne, c. 26 378, 435 
 
 8 Geo. 1, c. 2 379, 435 
 
 9 Geo. 1, c. 19 379, 435 
 
 2 Geo. 2, c. 28, Appendix 379, 491 
 
 6 Geo. 2, c. 35 379, 385 
 
 7 & 8 Geo. 2, c. 8 423 
 
 12 Geo. 2, c. 28, Appendix 379, 435, 439, 
 
 458, 492 
 
 13 Geo. 2, c. 19, Appendix 379, 380, 
 
 434, 435,497 
 
 17 Geo. 2, c. 5 436 
 
 18 Geo. 2, c. 34, Appendix. .380, 381, 498 
 
 25 Geo. 2, c. 36 457, 458 
 
 7 Geo. 3, c. 48 379 
 
 14 Geo. 3, c. 48 381, 424, 425 
 
 26 Geo. 3, c. 71 579 
 
 27 Geo. 3, c. 1 .. 381 
 
 29 Geo. 3, c. 49 38 
 
 42 Geo. 3, 0. 119 381, 436, 438 
 
 46 Geo. 3, 0. 148 381, 435 
 
 49 Geo. 3, 0. 98 3S1 
 
 PAGE 
 
 49 Geo. 3, c. 109 378 
 
 59 Geo. 3, e. 52 381 
 
 1 Geo. 4, c. 4 300 
 
 3 Geo. 4, c. 40 436 
 
 3 Geo. 4, c. 41 372, 374 
 
 3 Geo. 4, 0. 114 381 
 
 5 Geo. 4, c. 83, Appendix 381, 436, 
 
 501 
 
 6 Geo. 4, c. 105 381 
 
 7 Geo. 4, c. 64 428 
 
 7 & 8 Geo. 4, c. 29 59 
 
 7 & 8 Geo. 4, c. 30 62 
 
 9 Geo. 4, 0. 14 6, 155 
 
 9 Geo. 4, c. 61 442 
 
 11 Geo. 4 & 1 Will. 4, c. 68 270 
 
 1 & 2 Will. 4, c. 22 335, 578 
 
 1 & 2 Will. 4, c. 32 362, 363 
 
 1 & 2 Will. 4, c. 36 378 
 
 1 & 2 Will. 4, c. 58 42 
 
 2 & 3 Will. 4, c. 71 390 
 
 2 & 3 Will. 4, c. 120 578 
 
 3 & 4 Will. 4, 0. 42, Apjjendix 183, 
 
 202, 205, 502 
 
 3 & 4 Will. 4, 0. 48 578 
 
 5 & 6 Will. 4, c. 41, Appendix. .377, 382, 
 420, 425, 443, 4440 
 445, 446, 447, 604 
 
 5 & 6 Will. 4, c. 50 297,319 
 
 5 & 6 Will. 4, 0. 59 228, 434, 440 
 
 5 & 6 Will. 4, 0. 76 68 
 
 6 & 7 Will. 4, c. 66 382, 435 
 
 1 & 2 Vict. c. 106 421 
 
 2 & 3 Vict. c. 4 511 
 
 2 & 3 Vict. c. 47 297, 300, 344, 441 
 
 2 & 3 Vict. c. 71 67, 453, 454 
 
 3 & 4 Vict. c. 5 383 
 
 3 & 4 Vict. c. 24 364 
 
 5 & 6 Vict. c. 47 385 
 
 5 & 6 Vict. c. 55 366 
 
 5 & 6 Vict. c. 79 578 
 
 6 & 7 Vict. e. 85 198 
 
 6 & 7 Vict. c. 86 335, 343, 578 
 
 7 & 8 Vict. c. 3 384, 399, 434 
 
 7 & 8 Vict. c. 87 579 
 
 7 & 8 Vict. c. 109 385, 435 
 
 8 & 9 Vict. c. 20 365, 366 
 
 8 & 9 Vict. c. 57 385 
 
 8 & 9 Vict. c. 74 385, 435 
 
 8 & 9 Vict. c. 84 385 
 
 f/2 
 
TABLE OF STATUTES. 
 
 PAGE 
 
 8 & 9 Vict. c. 109, Appendix . .372, 380, 
 
 390, 391, 393, 394, 395, 397,415,416, 
 
 418, 419, 420, 421, 422, 423, 425, 427, 
 
 428, 431, 432, 433, 434, 437, 444, 447, 
 
 452, 459, 460, 461, 463, 464, 508 
 
 9 & 10 Vict. c. 23 385 
 
 9 & 10 Vict. c. 48, Appendix . .385, 435, 
 
 438, 520 
 
 9 & 10 Vict. 0. 62 342 
 
 9 & 10 Vict. c. 93 . .302, 342, 343, 345, 
 
 346 
 10 & 11 Vict. c. 14 57 
 
 10 & 11 Vict. c. 89 232, 578 
 
 11 & 12 Vict. 0. 29 361 
 
 11 & 12 Viet. c. 43 362 
 
 12 & 13 Vict. c. 92 228, 233, 440 
 
 12 & 13 Vict. c. 106 431 
 
 13 & 14 Vict. c. 7 578 
 
 13 & 14 Vict. c. Gl 240 
 
 14 & 15 Vict. c. 99 187, 198 
 
 14 & 15 Vict. 0. 100 60 
 
 15 & 16 Vict. c. 76 . . . . 180, 181, 182, 183 
 
 16 & 17 Vict. c. 33, Appendix . .521, 578 
 
 16 & 17 Vict. c. 83 187, 198 
 
 16 & 17 Vict. c. 90 385 
 
 16 & 17 Vict. 0. 119, Appendix.. 386, 422, 
 
 423, 449, 450, 451, 452, 453, 
 454, 455, 456, 531 
 
 16 & 17 Vict. c. 127, Appendix . .530, 578 
 
 17 & 18 Vict. c. 31.... 264, 269, 270, 271, 
 
 272, 273, 274, 277, 279, 284, 
 
 285, 289, 292 
 
 17 & 18 Vict. c. 38, Appendix . .461, 462, 
 
 463, 538 
 
 17 & 18 Vict. c. 60 228, 233 
 
 17 & 18 Vict. c. 90 202, 447 
 
 19 & 20 Vict. 0. 64 102, 371, 375 
 
 19 & 20 Vict. 0. 82 385 
 
 19 & 20 Vict. 0. 97 176 
 
 20 & 21 Vict. c. 54 68 
 
 21 & 22 Vict. c. 102 385 
 
 22 & 23 Vict. c. 17 463 
 
 23 & 24 Vict. c. 28 423 
 
 26 
 
 & 24 V 
 & 25 V: 
 & 25 V 
 & 25 V 
 & 25 V 
 & 25 V: 
 &26 V 
 & 26 V 
 & 27 V: 
 
 PAGE 
 
 ct. c. 126 42 
 
 ct. 0. 95 . 
 ct. c. 96 . 
 ct. c. 97 . 
 ct. c. 100 
 ct. c. 134 
 ct. c. 88 . 
 ct. c. 114 
 
 26 & 27 V: 
 
 .59, 66, 68, 251 
 
 .39, 
 
 68 
 428 
 
 60 
 300 
 431 
 145 
 363 
 
 ct. 0. 41, Appendix ..218, 219, 
 220, 544 
 ct. c. 125 ..370, 371, 373, 374, 
 375 
 27 & 28 Vict. c. 47 428 
 
 27 & 28 Vict. 0. 95 342, 343 
 
 28 & 29 Vict. c. 60 350, 352 
 
 30 & 31 Vict. c. 35 67 
 
 30 & 31 Vict. c. 134 578 
 
 30 & 31 Vict. c. 142 240 
 
 31 & 32 Vict. 0. 119 287, 288, 289 
 
 32 & 33 Vict. c. 14 578 
 
 32 & 33 Vict. c. 71 39 
 
 32 & 33 Vict. c. 1 15 578 
 
 33 & 34 Vict. c. 97 18, 187, 190 
 
 34 & 35 Vict. 0. 56 353 
 
 34 & 35 Vict. c. 78 288, 289 
 
 34 & 35 Vict. c. 87 35 
 
 35 & 36 Vict. c. 94 441, 464 
 
 36 & 37 Vict. c. 38 436 
 
 36 & 37 Vict. 0. 66.. 30, 42, 172, 181, 183, 
 
 192, 193, 212, 398 
 
 37 Vict. c. 15, Appendix . .386, 387, 456, 
 
 537 
 
 37 Vict. 0. 16 39, 385 
 
 37 & 38 Vict. c. 49 ....214, 215, 216, 442 
 
 37 & 38 Vict. c. 62 161 
 
 39 Vict. 0. 13 63 
 
 41 & 42 Vict. c. 38 225, 227 
 
 41 & 42 Vict. c. 74 59, 90, 211, 290 
 
 42 & 43 Vict. c. 18, Appendix . .387, 546 
 
 43 & 44 Vict. c. 42 341 
 
 43 & 44 Vict. c. 47 361 
 
 44 & 45 Vict. c. 61 215 
 
 44 & 45 Vict. c. 62 228 
 
INTRODUCTION. 
 
 Arrangement of the Subject .... liii 
 
 Giving a Warranty liv 
 
 Warranty should seldom be given liv 
 
 When to give a Warranty .... Iv 
 
 The Cause of Difficulty in Horse- 
 
 dcaling Iv 
 
 The Cause of Rascality in Horse- 
 dealing Iv 
 
 Veterinary Certificates Ivi 
 
 Veterinary Opinion Ivi 
 
 Difficulties felt by the Veterinary 
 
 Profession Ivii 
 
 Conflicting Certificates as to 
 
 Soundness Iviii 
 
 It lias been found most convenient to arrange under three Arrangement 
 heads the various subjects treated of in this work. ject^ 
 
 1st. Contracts concerning Horses, i^c, which, including 
 the Bargain and Sale of Chattels, comprises the law of 
 buying, selling, and exchanging, the doctrine of un- 
 soundness and vice, the law of warranty and false repre- 
 sentation ; the privileges and liabilities of Innkeepers, 
 Livery-stable Keepers, Farriers, Trainers, &c., and hiring, 
 borrowing and carrying Horses. 
 
 2nd. Negligence in the use of Horses, ^c, which includes 
 the criminal and civil liabilities incurred through negligent 
 driving, or keeping ferocious and vicious animals, and the 
 liabilities of parties in hunting or trespassing on the lands 
 of another. 
 
 3rd. Racing, Wagers, and Gaming, which gives a sketch 
 of their history, rise and progress 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 Grames and Wagers" (a), the 
 "Act for Legalizing Art Unions "(6), and the recent 
 "Act for the Suppression of Betting Houses" (c). 
 
 (a) 8 & 9 Vict. c. 109. ih) 9 & 10 Vict. c. 48. 
 
 [c) 16 & 17 Vict. c. 119. 
 
liv 
 
 INTRODUCTION. 
 
 Giving a 
 "Warranty. 
 
 Warranty 
 should 
 seldom be 
 criven. 
 
 One great peculiarity attending a portion of tliis work, 
 is the difficult question of "Warranty in connection mtli 
 Unsoundness. Because at wliat precise point Soundness 
 ends and Unsoundness begins has always been a subject 
 of dispute botli 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 calcidates, from the skill and materials employed, the 
 exact amount of responsibility he can take upon himself. 
 When a man warrants a Horse he does it at his own risk, 
 and of com-se that risk is very much greater, when he does 
 it upon his own opinion, than when he warrants after the 
 Horse has been pronounced sound by men of Yeterinary 
 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 Yeterinary evidence produced by the pur- 
 chaser ; 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 Yeterinary 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 Warranty should very 
 seldom be given : for there seems no reason why a person 
 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 
 takes his surveyor ^ith him, who points out all its defects, 
 and then he buys it or not according to the opinion he may 
 
INTRODUCTION. Iv 
 
 form of its value after these have been taken into consi- 
 deration. 
 
 And in all cases where a risk is run and an Insurance 
 effected, 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 manner 
 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. '\Yhere 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 Yeterinary 
 Surgeons of respectability and experience, and then, 
 knowing on what ground he goes, he may take the 
 risk of warranting him sound. 
 
 The vexation and difficulty experienced in Horse- The caiise of 
 dealing arises, in a great measure, from the loose manner I^ifficulty m 
 in which such transactions are conducted, and from the dealing, 
 thoughtless manner in which people give Warranties ; 
 and we generally find that the smaller a man's knowledge 
 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 The cause of 
 constantly buying and selling Horses, has an evident Rascality in 
 advantage over the persons with whom he deals, who dealing, 
 probably do not buy or sell Horses half a dozen times in 
 
Ivi 
 
 INTRODUCTION. 
 
 Veterinary 
 Certificates. 
 
 Veterinary 
 Opinion. 
 
 a year, and very few of wlioni 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 affair 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 hereditarij disease, is in the 
 possession of /ris iiafural and constitutional health, and has 
 as much hodihj perfection as is consistent with his natural 
 formation, a Yeterinary Surgeon may safely certify him 
 to be sound. But as there is in most Horses some slight 
 alteration in structure, either from disease, accident, or 
 work, a Veterinary Surgeon in giving his Certificate had 
 much better describe the actual state of the Horse, and 
 the probable consequences, without mentioning so »;;f/« ess or 
 unsoundness at all, and so let the purchaser buy him or not 
 as he may be advised. Because in such a case a straight- 
 forward statement would be made, and a man in the 
 Veterinary profession would not be called upon in an off- 
 hand manner to decide questions which are of the greatest 
 nicety, being full of uncertainty, and upon which no 
 conclusive decision can safely be arrived at. For we find 
 the greater the difficulty, the more likely is a decision 
 (if come to at all) to be the result of a slight prepon- 
 derance of one over each of many conflicting opinions. 
 
 We find that a man will sometimes warrant a Horse in 
 consequence of a Veterinary opinion given in an off-hand 
 manner, either without a sufficient examination of the 
 
INTRODUCTIOX. h 
 
 Horse having beeu 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. Rorjerson, tried at the Newcastle Spring Assizes, 
 1847 («), it appeared that a -fitness, who was a Veterinary 
 Surgeon, had taken off the Horse's shoes, and examined his 
 feet, when he found a slight Convexity of Sole. The o^^-ner 
 then asked him if he would he justified in warranting the 
 Horse as it had been warranted to him ; the witness asked 
 him if he was satisfied tlie 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 pre- 
 caution to see him go, things might have been different." 
 So that a Veterinary Surgeon finding that a Horse has 
 a disease in the Sole, and without taking the precaution 
 to see him go, tells the 0-\vner he is justified in warranting. 
 Now the use of the word justified shows that neither of 
 the parties fully knew the amount of liability incurred by 
 giving a Warranty, 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 Vetermary 
 called upon for a Certificate on that point, will appear profession. 
 from part of an article on " Soundness as opposed to 
 Lameness," by Mr. Percival, M.E.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 
 
 («) Hall V. Rogerson, Appendix. 
 
Iviii 
 
 INTRODUCTION. 
 
 purcliaser 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 which is liliehj 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 u-hich 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 2^rescnce 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 
 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 liappy unison in their 
 views of the case " (a). 
 Conflicting Mr. Godwin, M.E.C.S., Veterinary Surgeon to the 
 
 trsmmdnU ^^^en, makes the following sensible remarks on the 
 
 («) The Veterinarian, vol. xviii. p. 366. 
 
INTRODUCTION. lix 
 
 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 requii*ed 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 principles for 
 their guidance, that would make their Certificates less 
 liable to the censure and ridicule they both merit and 
 incur. The occurrence is by no means uncommon 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 
 Warranty of the dealer, purchases the Horse, and at the 
 end of six months has had to congratulate himself upon 
 the possession of a sound animal, and the escape he has 
 had in avoiding tico unsound Certificates " {a). 
 
 {a) The Veterinarian, vol. xix. p. 88. 
 
THE 
 
 LAW OF HORSES, 
 
 INCLUDING THE 
 
 BARGAIN AND SALE OF CHATTELS 
 
 .VLSO THE LAW OF 
 
 INNKEEPEES, VETEEINAEY SURGEONS, &c. ; 
 
 AND OF 
 
 EACING, WAGEES AND GAMING. 
 
 PART I. 
 
 CONTEACTS CONCEENING HOESES, &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 3 
 
 Afffe and Exchange id. 
 
 Bargain and Sale id. 
 
 Transfer of Property by Gift . . id. 
 Exectited and Executory Contract, id. 
 
 Entire Contract id. 
 
 Severable Contract id. 
 
 Verbal Contract id. 
 
 Writtoi Contract id. 
 
 Rigid of Rescission 4 
 
 Right of Trial id. 
 
 Buying a Horse under 10/ id. 
 
 Where neither Party can be off , . 5 
 
 Striking a Bargain id. 
 
 Contract not to be performed %cithin 
 
 a Year id. 
 
 Statute of Frauds, s. 4 id. 
 
 Requisites under s. 4 id. 
 
 Buying a Horse at lOl. or vp- 
 
 urirds 6 
 
 Statute of Frauds, s. 17 id. 
 
 Extended by 9 Geo. 4, c. 14 .... id. 
 
 Effect of Extension id. 
 
 Requisites under s. 17 7 
 
 O. 
 
 The Acceptance and Receipt. 
 
 In what they consist 7 
 
 General Rule id. 
 
 Acceptance before Delivery 8 
 
 When Vendor may disaffirm Sale id. 
 
 Where an Article is selected .... id. 
 
 Question for Jury 9 
 
 Constructive Possession of Buyer . id. 
 
 Seller may become Agent of Buyer 1 
 What has been held sufficient as 
 
 an Aeccptcmce and Receipt .... id. 
 
 What has been held insufficient . . 1 1 
 
 Various Acts of Ownership .... 12 
 
 A ready-Money Transaction .... id. 
 Criterion for determining xehether 
 
 Goods accepted or not 13 
 
 Where Buyer offers to resell .... id. 
 Where Goods are agreed to be re- 
 sold id. 
 
 Goods bought out of a larger Bulk id. 
 
 Vendee disposing of Goods 14 
 
 Goods sold by Sample id. 
 
 More Articles sent than ordered., id. 
 
 Aeceptance must be unequivocal. . 15 
 
 Ee livery Order id. 
 
 /t 
 
CONTRACTS CONCERNING HORSES, ETC. 
 
 The Earnest axd Part-Payitent. 
 
 Two Kinds of Earnest 15 
 
 Symbolical 16 
 
 Fccuniary id. 
 
 Fecuniary Earnest is Fart pay- 
 ment id. 
 
 Should be retained by I'cndor . . id. 
 
 The Old Male id. 
 
 Effect of Earnest under Statute of 
 Frauds 17 
 
 Effect of Fart-payment id. 
 
 Fart-payment in Contract not 
 icithin Statute of Frauds .... id. 
 
 The Note or Memorandum in 
 Writing. 
 
 Written Agreement 17 
 
 Ko particular Form required .... id. 
 Names of the Contracting Farties 18 
 Terms of the Contract must be 
 
 stated id. 
 
 May be collected from more than 
 
 one Bocument id. 
 
 The Stamp Act id. 
 
 Catalogue at a Sale id. 
 
 Frice ichere agreed xipon 19 
 
 Where no Frice is agreed upon . . 20 
 
 Contract by Letter id. 
 
 Sufficient between the Farties . . id. 
 Must express all the Terms of the 
 
 Agreement id. 
 
 Mutual Assent 21 
 
 Where the Contract is complete . . 23 
 Terms cannot be varied bg Farol . id. 
 
 But may be cvplained 24 
 
 Evidence that Goods are supiilicd 
 
 on Credit id. 
 
 3fatters antecedent to the Writing id. 
 
 Condition Frecedent id. 
 
 When admissible id. 
 
 Memorandum made after Action . 25 
 A foreign Contract id. 
 
 The Signature by the Party to 
 BE charged. 
 
 What is necessary 25 
 
 As to Initials id. 
 
 Where a Man prints his Name. . id. 
 
 Names of Farties, hoiv to he shoivn 26 
 
 Signature for other Furpose .... id. 
 
 The Signature by an Agent. 
 
 What is necessary 26 
 
 Who may be an Agent 27 
 
 JIoiv constituted id. 
 
 Need not be authorized in Writing id. 
 
 Auctioneer id. 
 
 Auctioneer'' s Clerk id. 
 
 Clear Recognition of Contract by 
 Farties stiff cient id. 
 
 Delivery and Payment. 
 Rights of F roper ty and Fossession 28 
 Executed and Executory Contracts id. 
 Fropcrty may pass tcithout Fe- 
 
 livery id. 
 
 What immediately passes the Fro- 
 
 perty id. 
 
 Condition as to Frice ascertainccble id. 
 Effect u-here not ascertainable , . 29 
 Unreasonable, but not therefore to 
 
 be rejected id. 
 
 Risk after Sale id. 
 
 Goods to be made to Order 30 
 
 Goods to be delivered on a future 
 
 Fay id. 
 
 Felivcry and Fayment contem- 
 
 jjoraneous Acts id. 
 
 Time not the Essence of a Contract id. 
 Where nothing is said about the 
 
 Time of Felivcry 31 
 
 Relative Fosition of the Farties . . id. 
 
 Seller'' s Lien for the Frice id. 
 
 Lien in Case of an Exchange .... id. 
 
 Conditional Fossession id. 
 
 Buyer'' s Right of Fossession where 
 
 Goods are sold on Credit 32 
 
 How it may be defeated id. 
 
 Seller'' s Lien during Fossession . , id. 
 His Right of Stoppage in transitu id. 
 Whe>i Goods are held to be in 
 
 transitu id. 
 
 When anything remains to be done 
 
 by Seller id. 
 
 Eff'ect of Stoppage in transitu . . 33 
 Goods to be delivered before Fay - 
 
 ment id. 
 
 When Time of Felivcry is not 
 
 fixed to a Fay id. 
 
 Goods to be paid for^ before De- 
 livery id. 
 
 Renunciation of Contract id. 
 
 Frice directed to be sent by Fost . . 34 
 
 Fost Office Order id. 
 
 Forged Bank Note id. 
 
 F'lshonourcd Bill id. 
 
 IDilves of Banli Notes id. 
 
 Wr'iting off Febt to Agent by 
 
 Agent id. 
 
 Banker'' s Cheque id. 
 
 Bill of Exchange 35 
 
 Febt paid to a Third Farty .... id. 
 
 Sunday Dealing. 
 
 Law of King Athelstan 35 
 
 Statute of Charles 2 id. 
 
 Farjner not within the Statute . . 36 
 
 Sale by a Ilorscdealer id. 
 
 By an ordinary Person id. 
 
 A subsequent Rat'ification id. ^ 
 
 Breach of a Warranty g'lren on a 
 
 Sunday 37 
 
BARGAIN, SALE AND EXCHANGE. 
 
 BARGAIN, SALE AND EXCHANGE. 
 
 A BARGAIN or mutual agreement or understanding as to Bargain, 
 terms between tlie parties, is implied in every contract for 
 a Sale or Exchange (a). 
 
 A Sale is a transfer of goods for money, and an Ex- Sale and ex- 
 change is a transfer of goods for other goods by way of c^i^^^ge- 
 barter, and in either case the same rules of law are pre- 
 scribed for regulating the transaction {b). 
 
 Therefore a bargain and sale of personal chattels is an Bargain and 
 agreement to sell, followed and completed by actual sale(c). '^^^^• 
 
 In order to transfer property by gift, there must either Transfer of 
 be a deed or instrument of gift, or there must be an actual Pyop^^^'ty ^7 
 delivery of the t/tijig to the donee. So, where the plain- ° 
 tiff claimed two Colts under a verbal gift made to him by 
 his father twelve months before his death, which how- 
 ever remained in his father's possession until his death, it 
 was held, that the property in them did not pass to the 
 son {(l). 
 
 A contract may be either executed, as if A. agrees to Executed and 
 change Horses with B., and they do it immediately ; or e-'^ecutory 
 it may be executory, as if they agree to change next ' " - 
 
 week [e). 
 
 If a person buy a Horse and a Pony together for 100/., Entire con- 
 the contract is entire, as there is no means of determining 
 the price of each (/). 
 
 But if he should purchase them both together, agreeing Severable 
 to pay 30/. for the Pony, and 70/. for the Horse, the con- contract, 
 tract would be severable ; and if the seller's title to the 
 Pony should fail, the buyer w^ould be obliged to keep and 
 pay for the Horse (./). 
 
 Where a bargain is made by word of mouth, all that Verbal con- 
 passes may sometimes be taken together as forming parcel 
 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 ( g) . 
 
 But if the contract be in the end reduced into writing. Written con- 
 nothing which is not found in the writing can be con- ^^'^ ' 
 sidered as part of the contract [g). 
 
 («■) See 2 Steph. Com. 67. Aid. 551. 
 
 [h) 2 Steph. Com. 66; Anou., 3 {c) 2 Steph. Com. 57. 
 
 Salk. 157; Chit. jun. Contr. 11th (/) See Ilincr v. Bradley, 22 
 
 ed. 353. Pick. Eep. 459 (Amer.); Johnson v. 
 
 (c) Com. Dig. Bargain and Sale Johnson, 3 B. & P. 162 ; Story on 
 
 (A.). Sales, 164, 190. 
 
 (rf) Irons V. HmaUpkcc, 2 Barn. & (v) Knln v. OW, 2 B. & C. 634. 
 
 b2 
 
CONTRACT? CONCERNING HORSES, ETC, 
 
 Eig-ht of res- 
 cission. 
 
 Risrlitof trial. 
 
 Buying a 
 horse under 
 10/. 
 
 "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 rescission 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 
 day 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.(0. 
 
 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- 
 tiation until the time allotted has elapsed. Thus A., 
 having a Ilorse 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 
 Ilorse 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 ho could not maintain such action (/r). 
 
 "Where a Horse is bought for any price or consideration 
 under the value of 10/., and there is not an actual payment 
 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 (/) ; 1st. An agreement to 
 deliver the Ilorse 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 the seller for his 
 money ; 2ndly. The payment of the whole price, and then 
 if the seller do not deliver the Horse, the buyer may sue 
 him, and recover it ; 3rdly. 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 (u/) 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 
 
 {h) Faym v. Cave, 3 T. E. 148; 
 Story on Sales, 99. 
 
 (») Eskridgc v. Glover, 5 Stew. & 
 Port. (Amer.) 2G4. 
 
 (/■) Ellis V. Mortimer, 4 B. & P. 
 257. 
 
 [I) Sheppard's Toucli. 225. 
 {in) Earnest, post, 15. 
 
BARGAIN, SALE AND EXCHANGE. 
 
 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 10/., and the seller states what Where neither 
 he asks for his Horse, and a buyer says he will give it, the ^^^^ ^^^ ^^ 
 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 («) . 
 
 Anciently, among all the northern nations, shaking of Striking a 
 hands was held necessary to bind a bargain, a custom which ^^'^^o^^^- 
 we still retain in many verbal contracts. A sale thus made 
 was called a //and sale, " venditio per mutuam manuum com- 
 pkxioiiem" (o). This method of striking a bargain is very 
 much practised in the north of England at the present day, 
 both in horsedealing and other transactions ; 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 10/. 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 ^J^ ^® ?®^',, • 
 
 ^ , , P -J 1 1 • "i- 1 lormed ■witmn 
 
 or some memorandum or note oi it must be m writing, and a year, 
 be signed by the party to be charged or his agent, within 
 the 4th section of the Statute of Frauds (p). 
 
 The words of the 4th section of the Statute of Frauds Statute of 
 applicable to a contract of this description are as follows : ^^^^^' ^- • 
 " And be it enacted, that no action (q) shall be brought 
 upon any agreement that is not to be performed within 
 the space of one year from the making thereof, unless the 
 agreement upon which such action shall be brought, or 
 some memorandum or note thereof, shall be in writing, 
 and signed by 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 Requisites 
 seldom made in buying or selling a Horse ; and it will be under s. 4. 
 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 con- 
 sideration which induced the party to make the stipula- 
 tion ; 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 liini (r). 
 
 («) Cooper V. Andreivs, Hob. 41 ; (i^) 29 Car. 2, c. 3. 
 
 Noy's Max. c. 42; 2Bla. Com. 447. (7) Leroux v. Broioi, post, p. 25. 
 
 (0) 2 Bla. Com. 448. (/) Marshall v. Lynn, 6 M. & W. 
 
b • CONTRACTS CONCERNING HORSES, ETC. 
 
 Buying- a The 17th sectlon of the Statute of Frauds is the founda- 
 
 horse at 10/. ^'qj^ q£ ^j^g ]^g^.^ o^overniuff the transfer of goods and chattels 
 
 or ui^'WcirQS cj cj o 
 
 worth 10/. or upwards, and among other things the buying 
 and selling of Horses of that value. 
 Statute of The words of the 17th section of the Statute of Frauds 
 
 Frauds, s. 17. r^j.Q ^g follows I " And be it enacted, that no contract for 
 the sale of any goods, wares or merchandizes, for the price 
 of 10/. or upwards, shall be allowed to be good, except the 
 buyer shall accept part of the goods so sold, and actnalhj 
 receive the same, or give something in earnest to bind the 
 bargain, or in part payment^ or that some note or memoran- 
 dum in writing of the said bargain be made and signed by 
 the party to he charged by such contract, or their agents 
 thereunto lawfully authorized." 
 Extended by This statute was further extended by 9 Greo. 4, c. 14, 
 9 Geo. 4, c. 14. commonly called Lord Tenterden's Act, by the' 7th sec- 
 tion of 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 10/. om upwards, notwithstanding 
 the goods may be intended to be delivered at some future 
 time, or may not at the time of such contract be actually 
 made, procured or provided, or fit or ready for delivery, or 
 some act may be requisite for the making or completing 
 thereof, or rendering the same fit for delivery." 
 Effect of ex- The 17th section of the Statute of Frauds, and the 7th 
 tension. section of Lord Tenterden's Act, must be read together ; 
 
 the effect of which is to substitute for the words " for the 
 price of 10/.," in the 17th section of the Statute of Frauds, 
 the words "of the value of 10/.," and thus to make the 
 rule uniform in all cases (.s) . Accordingly, where an 
 action was brought on a verbal contract, under which the 
 plaintiff agreed to sell to the defendant a certain Mare 
 and Foal, and at his own expense to keep this and 
 another Mare and Foal which belonged to the defendant 
 for a certain fixed time, and the defendant agreed to 
 purchase the first-named Mare and Foal and to fetch them 
 away at the end of the term thus fixed, and to pay the 
 plaintiff the sum of 30/. ; it was held, that this contract 
 was one within the statute, and which coidd not therefore 
 be enforced, inasmuch as though it did not very distinctly 
 appear on the face of the contract that the plaintiff's 
 Mare and Foal were worth more than 10/., yet that they 
 
 118; Wa'iHY. JFf/rltcrs, 2 Sin. Jj. G. (.s) Scoff v. Fasfcm Counties E. 
 
 8th ed. 261, 262 ; and see Benj. on Co., 12 M. & W. 33. 
 Sales, 2nd ed. 91, 
 
BARGAIN, SALE AND EXCHANGE, 7 
 
 miglit and would have been shown by parol evidence to 
 be so, and that there could be no doubt of the fact. It 
 was also held, that this contract was not less within the 
 statute because something else, which was merely ancillary 
 to its principal subject-matter, and to which the 17th section 
 of the Statute of Frauds did not apply, was included in it, 
 as the contract was an entire one and the price was indi- 
 visible (0. 
 
 Therefore to make the sale of a Horse at 10/. or upwards Eequisites of 
 valid under the 17th section of the statute, the buyer must * ^'^^j^ o^ 
 either actually accept and receive it, or give something in faluethanio^. 
 earnest to bind the bargain, or something in part payment ; 
 or the parties to bo charged must either themselves or by 
 their agents make and sign some note or memorandum in 
 writing of the bargain. 
 We shall consider — 
 
 1st. The Acceptance and Receipt. 
 
 2nd. 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, and the acceptance ''°^^^^''- 
 must be of the goods " so sold," for the enjoyment of 
 something merely engrafted upon the principal subject- 
 matter of the contract will not satisfy the statute (t). The 
 acceptance must be with the intention of taking pos- 
 session as owner. And the receipt implies deliver}^, either 
 actual or constructive {u). 
 
 There is always an acceptance and receipt by the pur- General rule, 
 chaser when 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 " {ir). 
 
 [t) minnan v. Seevc, 25 L. J., C. {ic) Baldeif v. Pnrl-er, 2 B. & C. 
 
 r. 257. 44 ; S. C. 3 D. & E. 220 ; Cxsack v. 
 
 {u) See per Parke, B., Saioiders liobiiisoii, 30 L. J., Q. B. 261 ; and 
 
 V. Topj), 4 Ex. 394 ; Holmes v. IIos- see Benjamin on Sales, 2nd cd, 140. 
 Icins, 9 Ex. 753. 
 
8 
 
 CONTRACTS CONCERNING HORSES, ETC. 
 
 Acceptance 
 before de- 
 livery. 
 
 In the case of Saunders v. Topp {u), the learned Judges 
 doubted whether in any case there could be an acceptance 
 and receipt before actual delivery. But recent cases 
 show that in the case of specific goods the acceptance 
 may precede the actual delivery, and need not be con- 
 temporaneous or subsequent to it (x). For inasmuch as 
 the vendor may lose his lien on the goods without losing 
 the personal possession of them, so may a vendee have 
 accepted and have actually received them within the 
 meaning of the statute without having the personal pos- 
 session of them ; ('.//., in a case in which it is agreed 
 between the vendor and the vendee that the possession 
 shall thenceforth be kept, not as vendor, but as bailee 
 for the purchaser, the lien of the vendor is gone, and the 
 goods are no longer in his possession as unpaid vendor {>/). 
 When vendor The vcndor may at any time disaffirm a sale of goods 
 maydisaffinn q£ ^|^g value of 10/. or upwards, if only contracted to be 
 made by parol, before the vendee does anything to bind 
 the bargain; if, however, the buyer has "taken to" the 
 goods, before the contract is disaffirmed, it will, as it would 
 seem, bind the bargain in favour of the buyer as well as 
 the seller (~) . 
 
 Where however an article is selected by the buyer, very 
 slight evidence of its acceptance, n-hen received, would be 
 sufficient to show an acceptance, coupled with a receipt. 
 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 their arrival he counted them over and 
 said, " It is all right." It was held that this was evidence 
 for the Jury of his acceptance of the sheep so as to satisfy 
 the Statute of Frauds, notwithstanding he afterwards re- 
 pudiated the purchase, and sent the sheep back to the 
 plaintiff (a). And Mr. Baron Alderson 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 w^ere received. The defendant says, ' It is all 
 right.' If he had never seen the sheep, and there had 
 
 Where an 
 article is 
 selected. 
 
 (u) Sec note («), ante, p. 7. 
 
 (z) Morton v. Ttbbcit, 15 Q. B. 
 428 ; UusacJcv. Robinson, 30 L. J., 
 Q. B. 261. 
 
 (;/) Cnsach v. Eohiuson, 30 L. J., 
 Q.B. 261. 
 
 (c) Tcnjlor v. WaJcrfield, 6 E. & 
 B. 765. 
 
 («) Saunders v. Topp, 4 Ex. 390. 
 
THE ACCEPTANCE AND RECEIPT. \) 
 
 been no previous acceptance, his saying ' It is all right ' 
 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 I bought.'" [b). 
 
 It is a question for the Jury whether there has been an Question for 
 acceptance and receipt. Thus W., living at Hereford, *^^*^ J^^'i"- 
 ordered goods (at a price above 10/.) of A., living at 
 Bristol, and directed that they should be sent by the 
 " Hereford " slooj) 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 warehousemen 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, whether 
 or not there had been such acceptance and actual receipt (r). 
 
 It has been stated above {d) that there may be an ac- Coustmctive 
 ceptance and receipt by the vendee before the goods are possession by 
 actually delivered by the vendor. Thus, after the de- 
 fendant had verbally agreed to jourchase of the plaintiff a 
 Horse, but before there had been any actual delivery 
 plaintiff requested defendant to lend it to him to take 
 certain journeys. To this the defendant assented, and the 
 Horse remained with plaintiff for a fortnight, when it was 
 sent to the defendant, who however refused to receive it : 
 the Jmy found that the bargain for the purchase of the 
 Horse was complete before the proposal to borrow it was 
 made, and that the defendant, as owner of the Horse, gave 
 plaintiff permission to keep it. It was thereupon held that 
 there was evidence of an acceptance and receipt of the 
 Horse to satisfy the Statute of Frauds (e). But the con^ 
 
 (i) Ibid. 395. See also Sun- 160. See also BeDJamiu on Sales, 
 
 monds v. Humble, 13 C. B., N. S. 2nd ed. 113. 
 
 258. ((/) See ante, p. 8. 
 
 (c) Bitshell V. Wheeler, 15 Q. B. [c) Marvin v. Wallace, 2 Jur., 
 
 442 ; Jordan v. Norton, 4 M. & W. N. S. 689. 
 
10 
 
 CONTRACTS CONCERNING HORSES, ETC 
 
 Seller may 
 become agent 
 for buyer. 
 
 What has 
 been held 
 sufficient as 
 an acceptance 
 and receipt. 
 
 structive possession by the vendee must be clearly siicli, as 
 that by it the vendor would lose his lien on the goods (./). 
 
 In all cases of this description there may be such a 
 change of character in the seller as to make him the agent 
 of the buyer, so that the buyer may treat the possession 
 of the seller as his own {(j) ; and the question for the Jury 
 will be, whether the seller held the subject-matter of the 
 sale as owner, or merely as keeper for the buyer. Thus, 
 when A. agreed to purchase of B. a Ovirriage 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 previously 
 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-IIouse as a second-hand Carriage. 
 The Carriage was accordingly sent to and iised 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 {Ji). 
 
 In some cases great difficulty arises in deciding whether 
 there has been such an acceptance and receipt as consti- 
 tutes a constructive delivery under the statute; and we 
 shall see by the following cases that some very nice dis- 
 tinctions have been drawn : Elmore v. Stone (i) is a leading 
 case on the subject, and, though its authority was doubted 
 by Mr. Justice Bayley in Hoire v. Palmer (./), it will be 
 seen that it may be distinguished from that and all the 
 following cases. 
 
 In Elmore v. Stone (/) an action was brought for the 
 price of two Horses, and a question arose whether there 
 had been a delivery of them under the Statute of Frauds. 
 The plaintiff was a Lirerij-stalile keeper and Horse dealer. 
 He asked 180 guineas for two Horses, which the defendant 
 at first refused to give, but afterwards sent word that 
 
 ( /) Holmes V. Hoskbis, 9 Ex. (J) Elmore v. Stone, 1 Taunt. 458. 
 
 753. See also Kibble v. Goii(//i, 38 L. T., 
 
 {(/) Castle V. Sicordo; 30 L. J., N. S. 204— C. A. 
 Ex. 310. U) iioi-<''<: V. Fulmcr, 3 B. & Aid. 
 
 {h) Beaumont v. Brcugeyi, 5 C. B. 324. 
 301. 
 
THE ACCEPTANCE AND RECEirT. 11 
 
 " the Horses were his, but that as he had neither servant 
 nor stable the plaintiff must keep them at livery for him ;" 
 the plaintiif assented, and removed them out of the sale 
 stable into another. The defendant afterwards 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 accepts the order, it is a suffi- 
 cient 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 ware- 
 house or a note to the wharfinger, who in consequence 
 makes a new entry of the goods in the name of the 
 vendee, although 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 difi;'erence 
 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 posses- 
 sion, 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." 
 
 But where a purchaser verbally agreed at a public Wliat has 
 market with the agent of the vendor to purchase twelve l^een held 
 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 
 apart for the purchaser, it was held by the Court of King's 
 Bench that this did not amount to an acceptance by tiie 
 latter, so as to take the case out of the 17th section of the 
 Statute of Frauds. And Mr. Justice Bayley said, " In 
 
12 
 
 CONTRACTS CONCERNING HORSES, ETC. 
 
 Various acts 
 of owuersliip. 
 
 A ready - 
 money trans- 
 action. 
 
 Elmore v. Stone (k) the buyer directed expense to be in- 
 curred, and the directing of that expense was considered 
 evidence of an acceptance on his part. That case goes as 
 far as any case ought to go, and I think we ought not to 
 go one step beyond it. There is this distinction between 
 that case and this, that there an expense was incurred on 
 account and by 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" (/). 
 
 However, the case of Elmore v. Stone (/•) seems to have 
 been properly decided, because the plaintiff, being a Licerij- 
 stabte keeper as well as a Horse dealer, the buyer, by order- 
 ing 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 Lieery-dahle keeper. 
 
 In the case of Carter v. Touissant (ni), which was a sale 
 upon credit, the purchaser had exercised various acts of 
 ownership over the Horse, which 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 was 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 was sent to grass by 
 the direction of the purchaser, and by his desire entered as 
 the Horse of the vendor. Chief Justice Abbott and Jus- 
 tices Bayley and Holroyd distinguished this case from 
 Elmore v. Stojie (/»•), on the ground that there the plaintiff 
 was both a. Lirer //-stable keeper and a Horse dealer; but that 
 here he was not ; and held that there was no acceptance of 
 the Horse by the purchaser within the 17th section of the 
 Statute of Frauds. 
 
 The following case was a ready-money transaction, and 
 the agreement was that the Horse should be taken away 
 and the money paid on a certain day ; on that ground 
 there was held to have been no acceptance within the sta- 
 tute, although the purchaser had exercised various acts of 
 ownership over him. It seems A. entered into a parol 
 
 {k)i:imore v. Stour, 1 Taimt. 458. 
 
 {!) Howe V. ralmer, 3 B. & Aid. 
 
 324. And see Itickard v. Moore, 
 
 38 L. T., N. S. 841— C. A. 
 
 (;«) Carter v. 'Touissant, 2 B. & 
 Aid. 855 ; S. C, 1 D. & E. 515. 
 
THE ACCEPTANCE AMD RECEIPT. 13 
 
 agreement to purcliase a Horse 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 
 expiration 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 (o). 
 
 The conduct of the vendee after the receipt of the goods Criterion for 
 will often be the criterion for determining whether he has detei-mining 
 accepted them(;;). Acts done for the mere purpose of ^e*accejted ^ 
 examination of the goods do not constitute an accept- or not. 
 ance (</). But a person must be taken to have accepted 
 goods within the statute, if, on their being sent to him, 
 he uses more of them than is necessary to test them (r). 
 
 Where a person, who has contracted for the purchase Where a 
 of a Horse or any other goods, offers to resell them as his buyer offers to 
 own, it is a question for the Jury whether or not a deli- ^^^^ ' 
 very to and acceptance by himself has been proved (.s). 
 Where, however, the defendant offered goods which he 
 had refused to accept, for resale in the market, stating at 
 the same time that he had not accepted them, and that he 
 would have to make other arrangements before he could 
 sell, it was held that there had been no acceptance (/). 
 
 An agreement for the resale of goods by the vendee is Where goods 
 sufficient evidence of a delivery and acceptance, as against are agreed to 
 him, to leave to the Jury [u). 
 
 If a man buys a quantity out of a larger bulk, he does Goods bought 
 
 (o) Tempest v. Fitzgerald, 3 B. & 13 Ir. Com. Law Reps. 160 ; and 
 
 Aid. 680. see Hcilbnt v. llickson, L. E., 7 C. 
 
 {p) Farker v. JFallls, 5 E. & B. P. 438 ; 41 L. J., C. P. 228. 
 
 28. (s) Blenkinsop v. Clayton, 7 Taunt. 
 
 {q) Kicholson v. Bower, 28 L. J., 597. 
 
 Q. B. 97. (0 Rielcard v. Moore, 38 L. T., 
 
 (r) Harnor v. Groves, 24 L. J., N. S. 811— C. A. 
 
 C. P. 53; Coventry v. M'Fnivry, {u) Chaplin v. Rogers, lEast, 192. 
 
14 
 
 CONTRACTS CONCERNING HORSES, ETC. 
 
 out of a larger 
 bulk. 
 
 Vendee dis- 
 posing of 
 goods. 
 
 Goods sold by 
 sample. 
 
 More articles 
 sent than 
 ordered. 
 
 ]iot buy it until it is separated from tlie rest, and there 
 must be an acceptance after the separation (i'). He must 
 have an opportunity of refusing what the vendor may 
 have selected. In some cases possibly an a priori assent 
 may be enough (;^•), but the general principle deducible 
 from the decisions is that the acceptance must be after the 
 purchaser has exercised his option, or has done something 
 to preclude him from so doing ; and {y) until he is so 
 precluded he cannot be said to have accepted them within 
 the meaning of the statute {z). But where goods are 
 delivered to the vendee, any objection on account of non- 
 compliance with the order or otherwise must be made* 
 within a reasonable time, otherwise the vendee will be 
 considered to have accepted them {a). It is for the reason 
 that the vendee cannot be said to have accepted goods 
 which he has not had an opportunity of rejecting, that the 
 delivery to a carrier is a delivery to and an acceptance by 
 the consignee only where the goods are specific and 
 ascertained (/>). 
 
 But where a vendor has recognized the right of his 
 vendee to dispose of goods remaining in the actual posses- 
 sion of the vendor, he cannot defeat the right of a person 
 claiming under the vendee, on the ground that no proj)erty 
 passed to the latter by reason of the want of a specific 
 appropriation of the goods {c). 
 
 Where goods are sold by sample, the handing over the 
 samples to the buyer does not, in the absence of evidence 
 of an usage or custom to the contrary, amount to a de- 
 livery and acceptance of a part of the thing sold ; but it is 
 otherwise, where the buyer draws samples from the bulk 
 after he has purchased the goods {d). 
 
 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 
 
 (y) Ca»ijjbeU v. Mersey Docks, 14 
 C. B., N. S. 412. 
 
 {x) AMridije v. Johiiso», 2G L. J., 
 Q. B. 296, per Campbell, C. J. ; 
 Langton v. Higgins, 28 L. J., Ex. 
 252 ; and see Kibble v. Gough, 38 
 L. T., N. S. 204, C. A., where 
 defendant's foreman received goods 
 and gave a receipt marked ' ' not 
 equal to sample," and it was held 
 that there was sufficient evidence 
 of an accejitance. See also Sinith 
 V. Hudson, 34 L. J., Q. B. 145. 
 
 (y) mint V. Etcht, 22 L. J. 295 
 
 (Ex.). Much of what was said in 
 Morton v. Tibbelt, 15 Q. B. 428, 
 doubted in this case. 
 
 (:;) Xorman v. FhllUps, 14 M. & 
 W. 283. 
 
 {a) Coleman v. Gibson, 1 M. & 
 Eob. 168. 
 
 {b) Coombs V. Bristol and Exeter 
 R. Co., 27 L. J., Ex. 401 ; and see 
 Benjamin on Sales, 2od ed. 135. 
 
 {c) iroodleg v. Corentrij, 32 L. J., 
 Ex. 185. 
 
 {d) Gardner v. Grout, 2 C. B., 
 N. S. 340. 
 
THE ACCEPTANCE AND RECEIPT. 15 
 
 can call his own. Thus, in an action to recover the price 
 of ten hogsheads of claret, it appeared that the defendant 
 having verbally ordered ten hogsheads of the plaintiif, the 
 latter in October sent him fifteen, whereupon the defend- 
 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 wine, but gave 
 no notice to the plaintiff of his disapproval until April ' 
 following, and in May refused to take any 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 (e). But in all cases where the 
 goods ordered are sent, together with others not ordered, 
 the vendee would not have a right to refuse to accept 
 any ; though if there is any danger or trouble attending 
 the severance of the two, or any risk that the vendee might 
 be held to have accepted the whole, if he accepted his own, 
 he is at liberty to refuse to accept at all (/) . 
 
 In all cases the acts of the parties, in order to be tan- Accei^tance 
 tamount to a delivery and actual receipt, must be unequi- ™"'^*^ ^^ "^' 
 vocal {(/) ; and therefore, where goods are lodged with a '^l'"^^^^ • 
 warehouseman as agent for the vendor, the mere acceptance 
 and retainer by the purchaser of the warrant or delivery * 
 order will not amount to an actual receipt of the goods so 
 as to bind the bargain {//) ; but to have this effect tlie 
 document must be lodged by the purchaser with the ware- 
 houseman, who must then, as it were, attorn to him, or, in 
 other words, agree to hold the property henceforth as his 
 agent (/). 
 
 THE EARNEST AND PART PAYMENT. 
 
 The civil law called the Earnest " Arr/ia,^' and this it ^wo kinds of 
 interprets to be " emptionis-venditionis, contractor argu- ■^''^^°^®*- 
 
 (6-) CunUfi! V. Jfarrison, 20 L. J., /S'^m;« Co., 33 L. J., Q. E. 214. 
 Ex. 325 ; ,S. C. 6 Ex. 903. (i) J]entaU v. Burn, 3 B. & C. 
 
 (/) Per Byles, J. ; Levy v. Green, 423 ; Farina v. Home, 16 M. & W. 
 
 1 El. & El. 969. 119 ; CitsacJc v. Rohimon, 30 L. J., 
 
 {g) NiehoUe v. Plume, 1 C. & P. Q. B. 261 ; Eart v. Bxsh, 27 L. J., 
 
 272 ; Eden v. Ludfeld, 1 Q. B. 307. Q. B. 271 ; Currie v. Anderson, 29 
 
 [h) M'-Ewmi. V. Smith, 2 H. L. L. J., Q. B. 87; see also Brown v. 
 
 Cas. 309 ; Le Matios v. Calcutta Hare, 27 L. J., Ex. 372. 
 
16 
 
 CONTRACTS CONCERNING HORSES, ETC. 
 
 Symbolical. 
 
 Pecuniary. 
 
 Pecuniary 
 Earnest is a 
 part pay- 
 ment. 
 
 Earnest 
 should be re- 
 tained by the 
 vendor. 
 
 The old rule. 
 
 mentiim" (/<•). It recognized two kinds of Earnest, — 
 symbolical and pecuniary ; the one being a transfer of 
 something by way of pledge or assiu-ance, and the other 
 being a payment of part of the purchase-money (/). A 
 similar distinction is made in the Statute of Frauds (ni). 
 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 
 parties to bind the bargain. Therefore, a saddle, bridle, 
 horsewhip or currycomb may be used for the purpose. 
 
 A pecuniary Earnest consists of a current coin or sum 
 of money given in part payment, and its efficacy does not 
 depend upon its value being proportioned to that of the 
 article contracted for. 
 
 Accordingly inasmuch as a pecuniary Earnest is to be 
 considered as a part payment of the purchase-money, in 
 a case where there was, upon a sale by auction, the com- 
 mon condition for the forfeiture of the deposit, and for a 
 resale, and the condition that " aH>/ deficicnci/ upon such 
 resale, with all expenses, should be made good by the 
 defaulter, and should be recoverable as liquidated da- 
 mages;" and the purchaser did not pay the deposit, which 
 amounted to 24/., and upon a resale the property fetched 
 15/. less than upon the first sale, and the expenses of the 
 second sale were 9/. 5.s-. ; it was held that the seller could 
 not recover the 15/., the expenses, and the deposit besides ; 
 for although the deposit, if it had been paid, would have 
 been forfeited, yet it would have been a part payment of 
 the purchase-money. The seller was allowed, therefore, 
 to recover only 24/. 5.s\, to which sum the loss on the 
 resale and the expenses amounted, exclusive of the de- 
 posit {ii). 
 
 Where the Earnest, whether symbolical or pecuniary, 
 is delivered to the vendor, it should be kept by him, and 
 not be returned to the purchaser. For where the pur- 
 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 England 
 is called " striking olf a bargain," it is neither an Earnest 
 nor a part payment within the Statute of Frauds (o). 
 
 Where an Earnest was given on a contract of sale, the 
 
 {k) 2 Bla. Com. 447. 
 [l) Code Ci\dle, 1590; Vinnius, 
 Com. in Inst. 1. 3, tit. 324. 
 (;«) 29 Car. 2, c. 3, s. 17. 
 
 (w) OcJcoiden v. Kcnhj, 27 L. J., 
 Q. B. 361. 
 
 (o) Blenlcinsoj) v. Chx'jton, 7 Taunt. 
 597. 
 
THE EARNEST AND PART PAYMENT. 17 
 
 old rule was, that if the buyer repented 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 vendor, 
 he was bound to make fourfold restitution to the vendee [p) . 
 
 But under the Statute of Frauds the Earnest binds the Effect of 
 bargain, and therefore the property passes in the same ^^^g^^^j^g 
 way as where there is a part payment. And under such statute of 
 circumstances an action for the price may be supported {q) . Frauds. 
 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 September following, and the 
 defendant, " to make the agreement more firm and bind- 
 ing, paid to the plaintiff one halfpenny in Earnest of the 
 bargain," it was held that the payment of the halfpenny 
 vested the property of the Colt in the defendant (r). 
 
 Where there was a part payment for some animals. Effect of part 
 which were deposited with a third party till the full payment, 
 amount was paid, and two of them died, the loss was held 
 to fall on the purchaser (s) . 
 
 It must be remembered that part payment of purchase- 
 money is only a part performance in respect of contracts 
 for the sale of goods, wares or merchandizes, within the 
 17th section of the Statute of Frauds {t). 
 
 THE NOTE OR MEMORANDUM IN WRITING. 
 
 ■If there has been either an agreement in writing, or a Written 
 parol agreement v/hich is afterwards reduced into writing, agreemen . 
 by the parties, tliat writing alone must be looked to, to 
 ascertain the terms of the contract {ii). 
 
 No particular form is necessary to constitute a good No particular 
 note or memorandum in writing ; and a sold note {x) or form re- 
 a bill of parcels is sometimes sufiicient, where it can be ^^"^'^'^• 
 proved that it has been recognized by the other party ( ?/). 
 
 (;;) Bracton, lib. 2, cap. 27, fol. Ch. 553. 
 02. (») Per Lord Abiuger, C. E., 
 
 (-?) Dijer V. Cowki/, 17 L. J., Q. Allen v. Fhik, 4 M. & W. 144. 
 B. 360. (.r) PartoH v. Crofts, 33 L. J., 
 
 (r) Sack V. Owen, 5 T. R. 409. C. P. 189 ; Sievewright v. Archi- 
 
 (s) Dyer v. Cowley, 17 L. J., Q. bald, 20 L. J., Q. B. 529. 
 B. 360. (y) See Johnson v. JDodgson, 2 M. 
 
 (0 Sugd. Vend. & Purch. 14th & W. 653; Diorell v. Evans, 31 
 
 ed. 152; Clinan v. Cooke, 1 Sch. & L. J., Ex. 337. 
 Lef. 22 ; Wood v. Mxdgley, 23 L. J., 
 
 O. C 
 
18 
 
 CONTRACTS CONCERNING HORSES, ETC. 
 
 Names of the 
 
 contracting 
 
 parties. 
 
 Terms of the 
 contract must 
 be stated. 
 
 May bo col- 
 lected from 
 more than 
 one docu- 
 ment. 
 
 The Stamp 
 Act. 
 
 Catalogue at 
 a Sale. 
 
 However, there are certain requisites whicTi must be con- 
 tained witliin the instrument, to satisfy the statute. 
 
 The note or memorandum in writing must state who are 
 the contracting parties (;:). But it is not necessary that 
 they shoukl appear actually on the face of the memoran- 
 dum ; if, from the memorandum taken in connection with 
 surrounding circumstances, it clearly appear who they are, 
 this is sufficient {n). 
 
 It must also state the terms upon which the contract 
 is made, because the word bargain means the terms upon 
 which the parties contract. As, for instance, in Bristoic v. 
 Ilalford {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, 
 100/. in three months, 100/, on the Horse winning the 
 Goodwood Cup, and 1,000/. on his winning the St. Leger 
 Stakes, for which the defendant undertook to enter him. 
 
 But though it does not state the terms upon which the 
 contract is made, it will be sufficient to satisfy the statute, 
 if it distinctly refers to and recognizes another document, 
 which does contain them (c) . The connection between the 
 documents must appear on the face of them, for it cannot 
 be supplied by parol evidence (r/), which can only be used 
 to show, what the writing is which is referred to, and which 
 is not admissible to supply any defects or omissions in the 
 written evidence (e). 
 
 An " agreement, letter, or memorandum made for or 
 relating to the sale of any goods, wares, or merchandize," 
 is exempted from stamp duty (/). 
 
 If at an auction the purchaser's name be signed to a 
 catalogue, it must be connected with or refer to the condi- 
 tions of sale, to make the contract valid ((/). And it is 
 not sufficient where they are merely in the room but not 
 adiialhj attached to the catalogue, or clearly referred to in 
 
 (r) WlUiams v. LaJcc, 29 L. J., 
 Q. B. 1 ; WiUiams v. Byrnes, 9 
 Jur., N. S. 363 ; Champion v. 
 Fhimmer, 1 N. R., B. & P. 252; 
 La\ithroap v. Bryant, 2 Bing., N. 
 S. 2-14 ; Williams v. Jordan, L. R., 
 C Ch. D. 517 ; 46 L. J., Ch. 681. 
 
 («) Chitty on Contracts, 10th ed. 
 359. 
 
 (i) Brisfoiv V. Ilalford, before 
 Lord Campbell, C. J.," West. C. P. 
 Feb. 1, 1853. 
 
 (f) Eidgivayy. Wharton, 27 L. J., 
 Ch. 46. 
 
 [d) Boydelly. Drummond, 1 1 East, 
 142 ; CaddicJc v. Skidmore, 27 L. J., 
 Ch. 153; Fierce v. Corf, L. R., 9 
 Q. B. 217; 43 L. J., Q. B. 52. 
 
 (f) Boydell v. Drummond, 11 
 East, 142 ; Fitzmanrice v. Bayley, 
 9 H. L. Cas. 78. 
 
 (/) 33 & 34 Vict. c. 97, Sch. 
 "Agreement" (3). 
 
 {(j) Hinde v. Whiie/iotisc, 7 East, 
 568. 
 
THE NOTE OR MEMORANDUM IN WRITING. 10 
 
 it ; and if during tlie sale they get separated, the signa- 
 tures made after the separation are unavailable {/i). 
 
 And where, at a sale of Horses, there was a catalogue 
 which contained the number of the lot, the description of 
 the Mare to be sold, and the conditions ; and a sales ledger 
 containing the same information with regard to lot and 
 description, together with the name of the purchaser and 
 the price at which the Mare was sold, but having no refer- 
 ence to the catalogue which contained the conditions of 
 sale ; it was held that the catalogue and conditions of sale 
 were not sufficiently connected with the sales ledger to 
 make a memorandum within the statute. 
 
 The Court was also of opinion that a letter, which the 
 purchaser subsequently wrote admitting the purchase, did 
 not constitute a sufficient memorandum, because it neither 
 stated a price nor referred to the sales ledger where the 
 price was stated («). 
 
 The price when agreed upon is a material part of the Price when 
 bargain, and must be stated in the memorandum. Thus, f^g^'eed upon, 
 where on the 13th Juno 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 Mr. 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 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 pnid constitutes a mate- 
 rial part of the bargain ; because if it were competent 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 (/<•) ; but it has been 
 held that a written order for goods " on moderate terms," 
 is sufficient (/). 
 
 (/^) Kcnworthy v. ScholfieU, 2 B. 47 L. J., Ch. 629 ; 26 W. R. 827. 
 & C. 945. (/.) Elmore v. Kingscote, 5 B. & 
 
 (0 Pierce V. Corf, L. R., 9 Q. B. C. 683. 
 ■ 210 ; 43 L. J., Q. B. 52 ; 29 L. T., (0 Ashcroft v. il/b?vi«, 4 M. & 
 
 N. S. 919. And see Itishton v. G. 450. 
 Whatmore, L. R., 8 Ch. D. 4G7 ; 
 
 c2 
 
20 
 
 CONTRACTS CONCERNING HORSES, ETC. 
 
 Where no 
 price is 
 agreed upoE. 
 
 Contract by- 
 Letter. 
 
 Sufficient 
 between the 
 parties. 
 
 Must express 
 all the terms 
 of the agree- 
 ment. 
 
 If, however, no price is fixed and agreed upon, a note 
 or memorandum which does not state any will be suffi- 
 cient, and the law will infer that a reasonable price was to 
 be paid {m) ; on the principle that if I take up wares from 
 a tradesman, without any agreement as to price, the law 
 concludes that I contracted to pay their real value («). 
 
 The omission of the particular mode or time of payment 
 does not necessarily invalidate the agreement (o). 
 
 A person who transacts a proposal 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 (^;). And if a letter be given in evidence 
 with the direction torn off, the jury will do well to pre- 
 sume prima facie, that it was addressed to the person who 
 produces it {q). 
 
 Where an intending purchaser wrote to the seller saying, 
 " If I hear no more about the Horse, I consider the Horse 
 is mine at 50/. 15s.," and the seller did not answer the 
 letter, the purchaser would have been bound to his offer, if 
 the seller had chosen to accept it ; but the fact of the seller 
 not having answered the letter Avill not bind him, as the 
 purchaser had no right to put upon him the burden of the 
 choice of writing a letter of refusal or being bound by the 
 agreement proposed (;•). 
 
 If letters taken together contain a sufficient contract, 
 namely, one that would express all its terms, they would 
 constitute a memorandum in writing 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 («). 
 
 But they must express all the terms of the contract (t). 
 Thus, where it was clear from Letters and Invoices that 
 the defendant had bought goods from the plaintiff upon 
 
 (m) HandJey v. M'Zaine, 10 Bing. 
 488. 
 
 («) 2 Bla. Com. 30. 
 
 (o) Sari V. Boicrdillon, 26 L. J., 
 C. P. 78. 
 
 (^j) Bxmlop V. Higyins, 12 Jui'. 
 295 ; Chitty on Contracts, 10th ed. 
 11. 
 
 {q) Curtis V. Richards, 1 M. & G. 
 47, per Tiudal, C. J. 
 
 (>•) Felthouse v. Bindley, 31 L. J., 
 C. P. 204. 
 
 (.•)) Archer v. Baynes, 5 Ex. 629 ; 
 Ilichards v. Forter, 6 C. B. 438; 
 Warner v. WiUington, 25 L. J., Ch. 
 662 ; Smith v. Neale, 26 L. J., C. P. 
 143 ; Watts v. Ainsicorth, 1 H. & 
 C. 83. 
 
 {t) Bailey v. Siveetiny, 9 W. R. 
 273. 
 
THE NOTE OR MEMORANDUM IN WRITING. 21 
 
 some contract or other ; but wliether he bought them on a 
 contract to take particular goods seen by him at the ware- 
 house, 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 
 agreement was that they should be delivered within a par- 
 ticular time, did not appear. It was held, that there was 
 no agreement coming within the Statute of Frauds ; be- 
 cause what was in truth the dispute between the parties 
 was not settled by the contract in writing (u) . 
 
 A letter signed by the party to be charged after the 
 transaction has taken place, which states (or plainly refers 
 to other documents which state) and admits the terms of 
 the contract, is a good memorandum under the Statute, 
 even if such letter contain an attempted repudiation by the 
 writer of his liability under the contract (x). 
 
 But as mutual assent is necessary to constitute a binding Mutual 
 contract, it is held that where it is sought to establish an assent. 
 agreement by means of Letters, such Letters will not 
 amount to an agreement, unless the answer be ex simpliccy 
 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 JVoji Assumpsit. It appeared that the 
 defendant having seen and ridden a Mare, wrote to the 
 plaintiff, " 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 hariiess.'" 
 The plaintiff wrote in reply, " She is warranted sound, 
 and quiet in double harness; I never put her in single 
 harness." The Mare was brought to the " World's End" 
 
 (m) Archer v. Baines, 5 Ex. 625 ; [x) BaiUy v. Sicectiiiq, 9 C. B 
 
 Eichards v. Porter, 6 B. & C. (N. S.) 843 ; 30 L. J., "C. P. 150 ; 
 
 438; Goodman v. Griffiths, 26 L. J., Wilkinson v. Evans, L. R., 1 C. P. 
 
 Ex. 145; M'leanv. MchoU,7 Jut., 417; Buxton v. Bust, L. R., 7 Ex. 
 
 N. S. 999 ; Honey man v. Marrijat, 1 ; 41 L. J., Ex. 1 ; 25 L. T., N. S. 
 
 21 Beav. 14; Tierce \. Corf, L. E,., 502, affirmed L. R., 7 Ex. 279; 
 
 9 Q. B. 214 ; 43 L. J., Q. B. 52 ; Leather Cloth Co. v. Hcironimus, L. 
 
 29 L. T., N. S. 919 ; Mahahn v. R., 10 Q. B. 140 ; 44 L. J., Q. B. 
 
 Buhlin, ^-c. Distillery Co., Ir. R., 11 54 ; 32 L. T., N. S. 307; and see 
 
 C. L. 83 ; Bertel v. Ncveiix, 39 L. Gibson v. Holland, L. R., 1 C. P. 1. 
 
 T., N. S. 257. (y) Cooperw.Hood,2fi'L.3 .,Qh..1l2. 
 
22 CONTRACTS CONCERNING HORSES, ETC. 
 
 on tlie 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 defendant 
 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 waiTanty. 
 The Jury found that the defendant did not accept the 
 Mare, and that the son had not authority to take her away. 
 It was held by the Court of Exchequer, on motion to enter 
 a verdict for the plaintiff, that there was no complete con- 
 tract in writing between the parties ; that therefore the 
 direction of the learned Judge was right. Also that the 
 defendant was not bound by the act of the son in- bringing 
 home the Mare, inasmuch as he had thereby exceeded his 
 authority as agent, and consequently that the plaintiff was 
 not entitled to recover (::) . And where the plaintiff sent 
 his Horse to a livery stable for sale, and the defendants 
 bid 75/. for him, but no final agreement was come to, and 
 the plaintiff left the Horse at the livery stable to see if the 
 defendants would buy the animal, arranging with the 
 livery stable keeper that he was to have no commission on 
 the sale unless 75/. or more were paid ; and the Horse 
 proving slightly unsoimd, the defendants wrote to the 
 livery stable keeper offering 70/. for him, and the livery 
 stable keeper having transmitted their Letter to the plain- 
 tiff, he (the plaintiif ) wrote to the livery stable keeper as 
 follows : " As the Horse is with you he shall go at 70/. 
 clear to me. I will pay no expenses, you must get what 
 you can of Mr. B. (one of the defendants) ; I cannot 
 allow anything off the 70/." It was held, that as the 
 plaintiff, by his answer to the defendant's offer, stipulated 
 that they should bear expenses to which he as vendor was 
 prinul facie liable, he had added a new term to those pro- 
 posed, and, in the absence of an acceptance of that term, 
 there was no complete contract between the parties (a). 
 
 On the other hand, however, two Letters may be suf- 
 ficiently identical to constitute a contract, although the 
 Letter of proposal may mention a term which is omitted 
 to be mentioned in the Letter of acceptance {b). 
 
 (;) Jordan v. Korton, 4 M. & W. N. S. 178. 
 155; mi/ward V. Barnes, 2ZL.T.GS. {b) Metzler v. Gounod, 32 L. T., 
 
 («) Lewis V. Fedrick, 29 L. T., N. S. 656, 
 
THE NOTE OR MEMORANDUM IN WRITING. 23 
 
 It is also necessary that the Letter of acceptance he 
 ahsolute and unqualified {e). 
 
 Where a contract is to be made out by an offer on one 
 side and an acceptance on the other, if the answer is 
 equivocal or anything is left to be done, the two do not 
 constitute a binding contract (d). 
 
 The better opinion is that a contract is complete upon Where the 
 the posting by one party of a Letter addressed to the contract is 
 other, accepting the terms offered by the latter, notwith- ^^^^ 
 standing such Letter never reaches its destination (e). 
 
 The terms of a written contract for the sale of goods. Terms can- 
 falling within the operation of the Statute of Frauds, ^^ot bo varied 
 cannot be varied or altered by parol ; and where a con- ^ ^^^^ ' 
 tract for the bargain and sale of goods was 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 writing, 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 con- 
 tract must be in writing, including the consideration 
 which induced the party to make the stipulation by 
 which he is to be bound; but by the 17th section it is 
 sufficient if all the terms by which defendant is to bo 
 bound are stated in writing so as to bind him. Now hero 
 there is a stipulation which is to bind the defendant, and 
 it is proposed to alter that by parol, which cannot bo 
 done. It is much better plainly to define what the law 
 is than to attempt to create fanciful distinctions " (/). So, 
 
 (e) Applehy v. Johnson, L. R., 9 Co. v. Grant, L. R., 4 Ex. D. 216 ; 
 
 C. P. 158. 48 L. J., Ex. 577; 41 L. T., N. S. 
 
 {d) Per Grove, J., ibid. 163; and 298; 27 W. R. 858—0. A., oxev- 
 
 sce Slanh'!/ V. DoKclestfeU,Jj. H., 10 ruling British and American Tele- 
 
 C. P. 102 ; 23 W. R. 389. r/rryj/t Co. v. Colson, L. R., 6 Ex. 
 
 (c) Duncan v. Topham, 8 C. B. 108 : 40 L. J., Ex. 97; 23 L. T., 
 
 225 ; Bunlop v. JUffffins, 1 H. L. C. N. S. 868, where it was held that 
 
 381; and see Imjicrial Land Co. of the contract was not complete until 
 
 Marseilles, In re, Harris's case, L. the actual receipt of the letter. 
 
 R., 7 Ch. 587; 41 L. J., Ch. 621 ; (/) MarshaUx. Lynn, 6 M. & W. 
 
 26 L. T., N. S. 781; 20 W. R. 118; and see iVoi^e v. JFard,L.Ii., 
 
 290; and household Fire Insurance 1 Ex.117; Ex. Ch., L. R., 2 Ex.135. 
 
24 
 
 CONTRACTS CONCERNING HORSES, ETC. 
 
 But may bo 
 explained. 
 
 Matters ante- 
 cedent to the 
 writins:. 
 
 Condition 
 precedent. 
 
 also, where the day appointed for the delivery of goods 
 was subsequently discovered to be a Sunday, and it was 
 then by word of mouth agreed between the parties that 
 the delivery should be made on the " Monday or Tuesday" 
 follo"^ang : 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 {g). But for- 
 bearance on the part of the plaintiff is not a variation of 
 the contract {Ji) . 
 
 But though the terms of a written contract cannot 
 be contradicted, altered or varied by parol evidence, yet 
 such evidence is admissible to define what the written 
 contract has left undefined (/) ; c. (/., where it contains no 
 date (/.•), or where its terms can only be given precision 
 when explained by the sense which mercantile usage has 
 put upon them (/), or where the subject-matter of the 
 contract can only be ascertained by the admission of a 
 conversation with reference to it (iii). So, too, where 
 goods are ordered by Letter, which does not mention any 
 time for payment, and such Letter amounts to a valid 
 contract within the Statute of Frauds, parol evidence is 
 admissible to showthat the goods were supplied on credit {n). 
 
 But a matter antecedent to and dehors the writing may 
 in some cases be received in evidence, as showing the in- 
 ducement to the contract ; 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 representation, 
 unless he can also show that the seller by some fraud pre- 
 vented him from discovering a fault which he, the seller, 
 knew to exist (o). 
 
 Parol evidence is also admissible of a condition, on 
 which the written agreement depends, such evidence being 
 as to facts distinct from, but collateral to, the written 
 agreement (|;). 
 
 {(/) Stead V. Baivher, 10 A. & E. 
 57 ; and see Hiclcman v. Harpies, 
 L. R., 10 C. P. 598; 44 L. J., C. P. 
 358 ; 32 L. T., N. S. 873 ; 23 "W. E. 
 871. 
 
 (A) Ogle V. Tane {Earl), L. R., 3 
 Q. B. 272, Ex. Ch. ; 37 L. J., Q. 
 B. 771. 
 
 (i) Per Erie, C. J., Lucas v. Bris- 
 tow, El. Bl. & El. 913. 
 
 (k) Davis v. Jones, 25 L. J., C. P. 
 91, 
 
 (/) Lucas V. Bristow, El. Bl. & 
 El. 907 ; Dale v. Humfrey, El. Bl. 
 & El. 1004. 
 
 [in) Maedonald v. Lougbottom, 6 
 Jul-., N. S. 724 ; Chadu-iek v. Burn- 
 leg, 12 W. R. 1077. See also Bux- 
 ton V. Bust, L. R., 7 Ex. 280, 281— 
 Ex. Ch. per WHles, J. 
 
 («) Lockett V. Nicklin, 2 Ex. 93. 
 
 (o) Kain V. Old, 2 B. & C. 634. 
 
 (2)) Pym V. Campbell, 6 El. & Bl. 
 370 ; Lindley v. Lacey, 5 N. R. 51, 
 
THE NOTE OR MEMO RAM DUM IN WRITING. 25 
 
 In order to sustain an action, there must be a good con- Memorandum 
 tract in existence at the time of action brought. There- ^^^^ ^^^^"^ 
 fore, a Memorandum in writing of a contract after action ^^ ^°^' 
 brought does not satisfy the Statute of Frauds {q). 
 
 But though an agreement be not in writing, as required A foreign 
 by this statute, it is not absohitely void, as the 4th section contract, 
 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 this country, there is 
 nothing in the statute to prevent any foreign Court from 
 giving force to the contract (r) . 
 
 THE SIGNATURE BY THE PARTY TO BE CHARGED. 
 
 The Statute of Frauds requires that there should be a What is 
 Note or Memorandum of the contract in writing, signed by necessary. 
 tJw j^arty to he 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 Jury, whether the party 
 not having signed it regularly at the foot, meant to be 
 bound by it as it then stood, or whether he left it so un- 
 signed, because he refused to complete it (.s'). 
 
 The Christian name of the Signature may be set out at As to initials, 
 length or denoted by the initial, or left out altogether it) ; 
 but it seems that the surname must be written at length, 
 and that the mere initials will not suffice iii). A mark by 
 a person unable to write may suffice if sufficiently iden- 
 tified ('^?). An unsigned postscript commencing, "I had 
 quite omitted to tell you and Martin," on a separate piece 
 of paper, enclosed in the same envelope with, but not re- 
 ferred to by, a letter signed with initials, is not sufficient 
 to satisfy the statute {x) . 
 
 If a man be in the habit of printing instead of writing Where a man 
 his name, he may be said to sign by his printed as well as Points hia 
 his written name {//). And an invoice with "Bought of "'^°^*^- 
 Norris & Co." printed on it, which was filled up in the 
 
 (q) Bill V. Banicnt, 9 M. & W. («) Sweet v. Lee, 3 M. & G. 452, 
 
 36. 460. 
 
 (?•) Leroux v. Broivn, 16 Jur. (v) Chitty on Contracts, 10th ed. 
 
 1021 (C. B.) . 362. 
 
 («) Per Lord Abinger, C. B., (.r) Kronheim v. Johnson, L. R., 
 
 Johnsonv. Lodgson, 2 M. & W. 659. 7 Ch. D. 60 ; 47 L. J., Ch. 132 ; 
 
 [l) Lohb V. Stanleij, 5 Q. B. 574, 37 L. T., N. S. 752. 
 
 58i. {y) Saiindcrson v. Jackson, 2 B. & 
 
 P. 238. 
 
26 
 
 CONTRACTS CONCERNING HORSES, ETC. 
 
 Names of 
 parties how- 
 to be shown. 
 
 Signature for 
 another pur- 
 pose. 
 
 body with the handwriting of Norris, was held to be, for 
 the purpose of the statute, signed by Noriis (s) . 
 
 The statute requires that the note should be signed by 
 the party to be charged ; accordingly it is no objection that 
 it is not also signed by the other party, and consequently 
 that there is no remedy against him {a). But a note in 
 writing, signed by one party, will be insufficient, unless it 
 also specifies the name of the other party (h). A signature 
 -by the defendant, however, in the plaintiffs' order-book on 
 the fly-leaf, at the beginning of which were written the 
 plaintiffs' names, will do (c) . And where the defendant 
 accepted an offer to buy, by telegram, giving signed in- 
 structions to the telegraph clerk, this was held to be a 
 sufficient signature {d). If, on the other hand, the note in 
 writing is signed by the seller only, it will plainly be in- 
 sufficient to charge the buyer (e) . 
 
 It is no objection to the signature that it was not made 
 to satisfy the Statute of Frauds, but in obedience to some 
 other statute ; so long as it is by the party to be charged 
 and attests the document which contains the terms of the 
 agreement, it is sufficient to satisfy the Statute of 
 Frauds (/). 
 
 THE SIGNATURE BY AN AGENT. 
 
 What is The statute requires some Note or Memorandum in 
 
 necessary. writing, to be signed by the party to be charged, or his 
 Agent thereunto lawfuUij authorized, leaving us to the rules 
 of common law as to the mode in which the agent is to re- 
 ceive his authority. Now, in all other cases a subsequent 
 sanction is considered the same thing in effect as assent at 
 the time. Omnis ratihahitio retrotrahitur, ct mandato cequi- 
 2Mratur ; 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. 
 
 {£) Schneider v. Norris, 2 M. & S. 
 286. And see Tourrct v. C'ripps, 
 48 L. J., Ch. 567 ; 27 W. R. 706. 
 
 {fi) Allen. V. Bennett, 3 Taunt. 
 160 ; Egcrton v. Mattheivs, 6 East, 
 307 ; Laytliroap v. Bryant, 2 Bing. 
 N. C. 744; Beussv. PicMcij, L. R., 
 1 Ex. 342, Ex. Ch. ; Buxton v. 
 Rust, L. R., 7 Ex. 279, Ex. Ch. 
 
 [b) Williams v. Lake, 29 L. J., 
 Q. B. 1 ; Williams v. Byrnes, 9 
 Jur., N. S. 363 ; Williams v. Jor- 
 dan, L. R., 6 Ch. 517 ; 46 L. J., 
 
 Ch. 681 ; 26 W. R. 230. 
 
 (c) Sari V. Bourdillon, 26 L. J., 
 C. P. 78. 
 
 {d) Godwin V. Francis, L. R., 5 
 C. P. 295 ; 39 L. J., C. P. 121 ; 22 
 L. T., N. S. 338. 
 
 (e) Champioti v. Plumnicr, 1 B. & 
 P., N. R. 252 ; Cooper v. Smith, 15 
 East, 103. 
 
 (/) Jo7ics V. Victoria Graving 
 Bock Co., L. R., 2 Q. B. D. 314; 
 46 L. J., Q. B. 219; 32 L. T., 
 N. S. 347. 
 
THE SIGNATURE BY AN AGENT. 27 
 
 Where the authority is given beforehand, the party must 
 trust to his agent ; if it be given subsequently to the con- 
 tract, the party knows that all has been done according to 
 his wishes (r/) . 
 
 An agent must be a third person, and not the other con- 
 tracting party {//). 
 
 An infant or married woman may be an agent, their Who may be 
 acts in that capacity not being affected by their disabilities ^^ ^S^^^- 
 of infancy and coverture respectively (/). 
 
 An agent may be constituted either by express appoint- How consti- 
 ment or by implication of law arising from the circum- tuted. 
 stance in which parties are placed (A-) . 
 
 The authority of the Agent to sell for his Principal may Need not be 
 be conferred by word of mouth (/) ; for it is now clearly ^^^t^onzed m 
 settled that the Agent need not be authorized in writing (m). °' 
 
 In general an Auctioneer may be considered as the Agent Auctioneer. 
 and Witness of both parties ; but a difficulty arises in the 
 case where the Auctioneer sues as one of the contracting 
 parties. The case of Wriglit v. Dannah («), seems to be in 
 point ; namely, that the Agent contemplated by the legis- 
 lature, who is to bind a defendant by his signature, must 
 be some third person, and not the other contracting party 
 upon the record (o) . 
 
 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 statute (;;) . 
 
 A Memorandum drawn up by the agent of both parties Clear recog- 
 by the authority of the defendants, in their presence, and 1"*''^°, °* ^'^^' 
 recognized by them at the time, though unsigned by them- ties suffi^eut. 
 selves, yet with their names inscribed on the document by 
 him, will bind them and satisfy the statute (*/). But a 
 
 {{/) Per Eest, C. J., Maclean v. son v. Hedis, 2 Taunt. 48. 
 
 Dunn, 4 Bing. 727. («) Wright v. Dannah, 2 Camp. 
 
 (//) Sharman v. Brandt, L. R., 6 203. 
 
 Q. B. 720; 40 L. J., Q. B. 312; (o) Farehrother v. Simmons, 5 B. 
 
 Wright v. Dannah, 2 Camp. 203 ; & Aid. 335 ; Sharman v. Drandf, 
 
 Farebrother v. Simmons, 5 B. & Aid. L. E.., 6 Q. B. 720. 
 
 333. {i)) Bird v. Boulton, 4 B. & Adol. 
 
 {i) Paley's Principal and Agent, 443. The book in which the entry 
 
 2 ; Fresticick v. Marshall, 7 Bing. is made must, however, be suffi- 
 
 565 ; Frince v. Brunette, 1 Bing. ciently connected with the con- 
 
 N. C. 438 ; 2 Steph. Com. 56. ditions of sale. Fierce v. Corf, 
 
 (k) 2 Steph. Com. 50. L. R., 9 Q. B. 310; and see lie- 
 
 {/) Aechal v. Lcvg, 10 Bing. 378, positorics and Auetions, post, 39. 
 
 {m) Per Lord Eldon, Coles v. {q) Durrell v. Evans, 31 L. J., 
 
 Trecothick, 9 Vesey, 249 a; Emmer- Ex. 337. 
 
28 CONTRACTS CONCERNING HORSES, ETC. 
 
 Memorandum written in the buyer's book, drawn up and 
 signed by a person, who is the agent of the seller only, 
 although this was done at the request of the buyer, will 
 not bind him (r). 
 
 DELIVERY AND PAYMENT. 
 
 Rights of The right of property and the right of possession are 
 
 possesswn^'^ distinct from each other ; the right of possession may be 
 in one person, the right of property in another (s). For 
 by the law of England, possession is not proof of pro- 
 perty (/). It is, at the same time, presumptive proof of 
 ownership, and may be acted on as such {ii). 
 Executed and "When the contract is executed, the possession and the 
 contract^s"^ right are transferred together; where it is executori/, the 
 right only vests, and the reciprocal property is not in 
 possession, but in action ; for a contract executed (which 
 when it relates to an exchange or sale of goods differs in 
 nothing from an assignment) conveys a chose in possession, 
 a contract executory/ conveys only a chose in action (x). 
 Property may It is clear that by the law of England the sale of a 
 deUvery °^^ specific chattel passes the property in it to the vendee 
 without delivery (y) . Even in this case, however, if the 
 contract show that there is no intention to pass the pro- 
 perty until something be done by the seller, either in 
 order to prepare the goods for delivery, or for the purpose 
 of ascertaining the price, the sale is not perfected, and the 
 property does not pass until that thing is done (;:). 
 Wliat immc- To constitute a sale which shall immediately pass the 
 diatcly passes property, it is necessary that the thing sold should be 
 ascertained in the first instance, and that there should be 
 a price ascertained or ascertainable (ci) . So that there may 
 be a sale of a specific chattel, which shall immediately pass 
 the property, even though the price may have to be after- 
 wards ascertained (b). 
 Condition as Where, in an agreement of sale, a condition as to the 
 tainable^^^^'^" V^^^^ ^^ annexed, and the fulfilment of it is ascertainable, 
 
 (;•) Graham v. Musson, 5 Bing. (//) See per Parke, J., Dixon v. 
 
 N. C. 603. And see Miirphi/ v. Yates, b B. & Adol. 340 ; Buddie v. 
 
 Boesc, L. R., 10 Ex. 126 ; 44 L. J., Green, 27 L. J., Ex. 33. 
 
 Ex. 40 ; 32 L. T., N. S. 122. {-) Chitty on Contracts, lOth ed. 
 
 (.?) Tarling v. Baxter, 6 B. & C. S48. 
 
 364. {a) Judgment of C. P., Logan v. 
 
 {t) See per Best, C. J., WiUiams Le Mcsurier, 11 Jur. 1094. 
 
 V. Barton, 3 Bing. 145. {h) See Logan v. Lc Mesiirier, 11 
 
 lu) Webh V. Fox, 7 T. R. 397 ; Jur. 1091 (C. P.) ; Chit. Contr., 
 
 Fy'son v. Chambers, 9 M. & W. 460. 10th cd. 316. 
 
 (z) 2 Steph. Com. 50. 
 
DELIVERY AND PAYMENT. 29 
 
 such condition would appear to be good ; as where the 
 plaintiff purchased a Horse for 55/., and the defendant 
 warranted him sound, and agreed to give back 1/. if the 
 Horse did not bring the plaintiff 4/. or 5/. profit (c). 
 
 But if such condition is not ascertainable, of course it EfEect where 
 cannot be enforced, and then it becomes an immaterial not ascer- 
 part of the agreement. Thus, where a horse was sold to *^i^^"^le. 
 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 10/. The buyer 
 might have said, ' the Horse does not suit me, but I choose 
 to keep him nevertheless' " (r/). So, also, where the plain- 
 tiff agreed to purchase a Horse for 63/., and " if the Horse 
 was lucky, he would give the defendant 5/. 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 remaining part of the consideration, 
 that if the Horse proved lucky the plaintiff should give 5/. 
 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 what circumstances a Horse shall be said to 
 have proved ' lucky' ? The price at which the Horse sold 
 would not determine it. Suppose a year passed before the 
 advanced 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 was asked" (e). 
 
 Where from the whole tenor of a contract it is clear Unreasonable 
 that, however unreasonable and oppressive a stipulation or ^^* notthere- 
 condition may be, the one party intended to insist upon, rejected. 
 and the other to submit to it, the Court will give full 
 effect to the terms which have heen agreed upon between 
 the parties (/). 
 
 The rule of law is, that where there is an immediate The risk after 
 sale, and nothing remains to be done by the vendor as sale. 
 
 (c) m>/th V. Hampton, 3 Bing. 234. 
 
 472. (/■) Stadhard v. Lee, 32 L. J., 
 
 [d) Cave v. Coleman, 3 M. & R. 3. Q. B. 75 ; Andreus v. BeJfield, 2 C. 
 \e) Guthing v. Lynn, 2 B. & Adol. B , N. S. 779. 
 
30 
 
 CONTRACTS CONCEHNING HORSES, ETC. 
 
 Goods to be 
 made to order. 
 
 Goods to be 
 delivered on a 
 future day. 
 
 Delivery and 
 payment con- 
 temporaneous 
 
 acts. 
 
 Time not tlie 
 essence of a 
 contract. 
 
 between him and tlie 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 
 vendee (r/). Thus, in Noy's Maxims it is said, "If the 
 Horse die in my stable between the bargain and the 
 delivery, I may have an action of debt for my money, 
 because, by the bargain, the property was in the buyer" (A). 
 By contract, however, the risk may be in the vendee, even 
 though the vendor may have both the property in and the 
 possession of the goods (/). 
 
 Where goods are to be made to order, as on a contract 
 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 (A-) . 
 
 A contract for the sale of goods, to be delivered at a 
 future day, is not invalidated by the circumstance that, 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 becoming 
 possessed of them by the time appointed for delivering 
 them, otherwise than by purchasing them after making 
 the contract (/). 
 
 "Where there is a sale of an ascertained article, and no 
 provision is made to the contrary, the delivery and pay- 
 ment are to be contemporaneous acts (;;?). 
 
 In a sale of chattels. Time was not generally, even at law, 
 of the essence of the contract, unless made so by express 
 agreement, by introducing conditional words into the 
 bargain (;;). And now, by the Judicature Act, 1873 
 (36 & 37 Yict. c. G6), s. 25, sub-s. 7, stipulations in con- 
 tracts as to Time or otherwise, which would not before the 
 passing of that Act have been deemed to be or to have 
 become of the essence of such contracts in a Court of equity, 
 
 {(j) Per Bayley, J., Tarling v. 
 Baxter, 6 B. & C. 364 ; see also 
 Furley v. Bates, 33 L. J., Ex. 43 ; 
 Castle V. Fhyford, L. R., 7 Ex. 98. 
 
 (A) Noy's'Maxims, 208. 
 
 (i) Martbieau v. Kltcliinq, L. R., 
 7 Q. B. 436, cited in Chitty on 
 Contracts, 10th ed. 348. 
 
 {k) Puad V. Fairbanks, 22 L. J. 
 206 (C. P.). 
 
 (/) Eihhlcwhite V. McMorine, 5 M. 
 & W. 462. 
 
 (;«) Fcttitt V. Mitchell, 6 Sco. N. 
 R. 740 ; Chase v. Westmore, 5 M. & 
 S. 189 ; Coicpcr v. Andreivs, Hob. 
 41 ; Noy's Maxims, cap. 42; 2 Bla. 
 Com. 447; Year Book, Easter Term, 
 5 Edw. 4, fol. 20. 
 
 («) Per Cur., Martindalc v. Smith, 
 1 Q. B. 395. See Coddington v. 
 Faleogo, L. R., 2 Ex. 193, 
 
DELIVERY AND PAYMENT, 31 
 
 sliall receive in all Courts the same construction and effect 
 as they would theretofore have received in equity. 
 
 "Where goods are sold, and nothing is said as to the time Where 
 of the delivery, or the time of payment, and every thing ^^^about 
 the seller has to do with them is complete, the property the time of 
 vests in the buyer, so as to subject him to the risk of any the delivery, 
 accident which may happen to the goods, and the seller 
 is liable to deliver them whenever they are demanded, 
 iijion payment of the price, but not before (o). 
 
 A vendor may have a qualified right to retain the goods Eelative posi- 
 unless payment is duly made, and yet the property in tionofthe 
 these goods maybe in the vendee {p). Thus it is said, P''^^ ^®^- 
 in Noy's Maxims (7), "If I sell my Horse for money, I 
 may keep him until I am paid, but I cannot have an 
 action of debt until he is delivered; yet the property of 
 the Horse is, by the bargain, in the bargainee or buyer. 
 But if he do presently 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 (r). 
 
 The seller's right in respect of the price is not a mere Seller's lien 
 lien which he will forfeit if he parts with the possession, ^^^ t^® P^°®- 
 but grows out of his original ownership and dominion, 
 because payment or a tender of the price is a condition pre- 
 cedent on the buyer's part, for until he makes such payment 
 or tender he has no right to the possession (s) . 
 
 In the case of an exchange of two Horses for one, a Lien in case 
 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 [t) . 
 
 And whatever conditional or temporary arrangement be Conditional 
 made as to possession, so long as it is consistent with possession. 
 an intention to retain a special right to detain the goods, 
 the seller will not forfeit his lien. Thus if A. purchase a 
 
 (0) Bhxam v. Sanders, 4 B. & C. Ex. N. P. Nov. 3, 1859, where two 
 
 94i. horses were sold, and were to bo 
 
 {p) Tarl'uig \. Baxter, 6 B. & C. kept by a third party, until a 
 
 364. cheque given in payment was 
 
 (q) Noy's Maxims, 208. cashed, that, as the cheque was 
 
 (r) Manhy v. Scott, 1 Mod. 137 ; dishonoured, the vendor had not 
 
 1 Dyer, 30 a, pi. 203. given up possession. 
 
 («) Bloxam v. Sanders, 4 B. & C. (t) See Hanson v. Meyer, 6 East, 
 
 948. It was held by Martin, B., 621. 
 in the case of Stuchfield v. Kind, 
 
32 
 
 CONTRACTS CONCERNING HORSES, ETC. 
 
 Buyer's right 
 of possession 
 "where goods 
 are sold on 
 credit. 
 How it may- 
 be defeated. 
 
 Seller's lien 
 during pos- 
 session. 
 
 His right of 
 stoppage in 
 transitu. 
 
 When goods 
 are held to be 
 in transittc. 
 
 When any- 
 thing remains 
 to be done by 
 seller. 
 
 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 
 which he allows A. to take the Horse (u). 
 
 If goods are sold upon credit, and nothing is agreed 
 upon as to the time of delivering them, the buyer is 
 immediately entitled to the possession, and the right of 
 possession and the right of property vest at once in him {v). 
 
 But his right of possession is not absolute ; it is liable 
 to be defeated if he becomes bankrupt before he obtains 
 possession {ir). 
 
 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 
 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 {x). 
 
 The seller of goods has not only a lien on them for the 
 price, whilst they are in his possession, but when the price 
 is unpaid, he may, after he has parted with the possession 
 of the goods, and whilst they are in transitu, retake them 
 in the event of the Bankruptcy or Insolvency of the buyer (//). 
 
 Stoppage in transitu, as its name imports, can only 
 take place whilst the goods are on their way to the buyer ; 
 and the rule to be collected fi-om 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 
 the seller, or at his risk or charge, the transit is incom- 
 plete. Thus, where corn was to be conveyed from the 
 warehouse at the railway to the buyer's waggons, at the 
 expense of the seller, it was held, even after it had reached 
 the station, to be still in transitu (b). 
 
 {u) See Stoiy on Sales, 236; 
 Reeves v. Capper, 5 Bing. N. C. 
 136 ; and see Benj. on Sales, 667. 
 
 {v) Bloxam v. Sanders, 4 B. & C. 
 948. 
 
 {w) Ibid. ; Tootce v. HolUngs- 
 worth, 5 T. R. 215 ; Ex parte Chal- 
 mers, L. R., 8 Ch. App. 289 ; and 
 see Chitty on Contracts, 10th ed. 
 392. 
 
 [x) See per Cur., Martindale v. 
 Smith, 1 Q. B. 395; Tarling v. 
 
 Baxter, 6 B. <& C. 362 ; Ex parte 
 Chalmers, 8 Ch. App. 289. 
 
 [y) See Chit. Contr. 1 1th ed. 400 ; 
 Lickbarroiv v. Mason, 2 T. R. 63. 
 
 {£) Whitehead v. Anderson, 9 M. 
 & W. 518. 
 
 {a) See 1 Smith's Leading Cases, 
 8th ed. 816. 
 
 {h) Ex parte Cross, re Flgot, Court 
 of Bankruptcy, 17 L. T. 160; see 
 Coombs V. Bristol, ^-c. B. Co., 27 
 L. J., Ex. 401. 
 
DELIVERY AND PAYMENT. 33 
 
 What tlie effect of stoppage in transitu is, whetlier en- EfPect of 
 tirely to rescind the contract, or only to replace the seller stoppage m 
 in the same position as if he had not parted with the pos- 
 session, and entitle him to hold the goods until the price 
 he paid, is a point not yet finally decided, but the latter 
 view of the case seems to be the correct one (c). 
 
 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 ^p^^j^'^'^ent 
 within fourteen days from the date of the contract," the 
 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(r/). 
 
 When there are no special indications of the limit of When time of 
 time in a contract, that it should be performed " directly" <lelivery is 
 means that it should be performed not " within a reason- ^^j_ ' 
 able time" but "speedily," or at least "as soon as prac- 
 ticable" ((^) ; and "as soon as possible" means "without 
 unreasonable delay," regard being had to the ability of 
 the person contracting, and the orders he has already in 
 hand (/) . 
 
 If there be an express contract between the parties, Goods to be 
 that the goods shall be paid for before delivery, an action f^^c deliver" 
 may be brought for the money before the goods are de- 
 livered. Thus if A. undertakes to pay 100/. on the 1st 
 of January for a Horse purchased by him, and B. agrees 
 to deliver it on the 1st of April following, B. may in the 
 meantime maintain an action against A. for the money, 
 without delivering or offering to deliver the Horse {g). 
 
 Where two parties enter into a contract which is to be Eenunciation 
 performed at a future day, and before the day of per- °* contract, 
 formance arrives, one of them gives the other notice that 
 he does not hold himself bound by it, the other is at liberty 
 to treat such renunciation as a breach of the contract, 
 without waiting for the arrival of the day which is fixed 
 for its performance (A). 
 
 (c) Wentworth v. OHthicaitc, 10 C. P. 73. 
 
 M. & W. 452 ; 1 Sm. L. C. 8th ed. (y) See Pcttitt v. Mitchell, 5 Sco. 
 
 811. N. R. 740; T/ior2)e v. T/iorpe, 1 
 
 {d) Stmmton v. Wood, 16 L. T., Lord Raym. 665 ; S. C. 1 Salk. 
 
 Q. B. 486. 171 ; and see Add. Contr. 7th ed. 
 
 (e) Duncan v. Topliam, 8 C. B. 461. 
 
 225. (A) Danube, ij'C. Co. v. Xenos, 31 
 
 (/) AftwoodY. Emery, 26 L. J., L. J., C. P. 281 (Ex. Ch.). 
 
 O. D 
 
34 
 
 CONTRACTS COXCERNING HORSES, ETC. 
 
 Price directed 
 to be sent by 
 post. 
 
 Post-office 
 order. 
 
 Forged bank 
 note. 
 
 Dishonoured 
 biU. 
 
 Halves of 
 bank notes. 
 
 Writing off 
 debt by agent 
 to agent. 
 
 Banker's 
 cheque. 
 
 If tlie buyer is directed to send the price by Post, or if 
 it lias been the usual practice between the parties, to do 
 so (i), and the letter containing the money properly di- 
 rected [j) and posted {k) is lost, the debt is extinguished, 
 and the seller must bear the loss (/). 
 
 Where the defendant, in answer to a letter demanding 
 payment, sent a Post-Office Order, in which the plaintiff 
 was described by a wrong christian name, and the plaintiff 
 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 pay- 
 ment {)n). 
 
 If payment be made in 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 (w). 
 
 Where there is a sale of specific chattels, and a bill is 
 given in payment, though the vendor has then lost his 
 lien in the strict sense of the word, yet, if afterwards an 
 insolvency happens, and the bill is dishonoiu'ed, then the 
 vendor has a right somewhat analogous to that which a 
 vendor has over goods i)i transitu, and if they are still in 
 his hands, he has a right to withhold the delivery of the 
 goods (o). 
 
 If payment is made by halves of Bank notes, no pro- 
 perty in them passes to the payee, till the other halves are 
 sent {p) ; and therefore it would seem that such an in- 
 choate payment will be no payment within the Statute of 
 Frauds. 
 
 If a creditor employs an agent to receive money from 
 a debtor, and the agent, instead of so doing, writes off a 
 debt due from himself to the debtor, his debtor is not 
 thereby discharged, unless indeed there is a subsequent 
 ratification by the creditor of the act of his agent (y) . 
 
 If a creditor is offered cash in payment of his debt, or 
 a cheque upon a Banker from an agent of his debtor, and 
 he prefers the latter, this does not discharge the debtor 
 if the cheque be dishonoured ; although the agent fails 
 
 {() WanvicTie v. Xoalxs, Peake, 
 N. P. 98. 
 
 [j) Walter V. Ilaijnes, E. & M. 
 149. 
 
 (^•) HaicMns v. Rutt, Peake, N. 
 P. 248. 
 
 (/) Kington v. Kington, 11 M. & 
 W. 233. 
 
 [m) Gordon, v. Strange, 1 Ex. 477. 
 
 («) See Chit. Contr.' 10th ed. 681. 
 
 [o) Per Cronipton, J., Griffiths \. 
 Ferry, 28 L. J., Q. B. 204. 
 
 {])) Smith V. Mundy, 29 L. J., 
 Q. B. 172. 
 
 {q) Undencood v. Nichols, 25 L. 
 J., C. P. 79. 
 
DELIVERY AND PAYMENT. 35 
 
 with a balance of liis principal in his hands to a larger 
 amount (/•). 
 
 The creditor must, however, present the cheque within 
 a reasonable time (s). 
 
 If a creditor prefers a Bill of Exchange accepted by a Bill of ex- 
 stranger to ready money from his debtor, he must abide change, 
 the hazard of the security he takes (t). 
 
 By the order of the creditor, a debt may be paid to a DeU paid to 
 third 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 (u). 
 
 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 : ^tliel^tau. 
 "Die autem Domiiiico nemo mercafnram facifo ; id quod 
 si quis egerif, et ij)sa mercc, ct 30 prieterea soUdis miilc- 
 tator'' {x). 
 
 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, ^'^'''■^■l'^^ 2. 
 "that no tradesman, artificer, workman, labourer, or 
 other person whatsoever, shall do or exercise any u-orldhj 
 labour, business or icorh of their ordinary callings upon 
 the Lord's Day or any part thereof (works of necessity 
 and charity only escej)ted), and every person being of the 
 age of fourteen years or upwards offending in the premises 
 shall for every such offence forfeit the sum of 5«. ; and 
 that no person or persons whatsoever shall publicly cry, 
 show forth or expose to sale any wares, merchandizes, 
 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." 
 
 By the 34 & 35 Yict. 6. 87 (continued by the Expiring 
 Laws Continuance Act), s. 1, no prosecution or other 
 proceeding shall be instituted for the contravention of this 
 Act, but with the consent in writing of the chief officer of 
 the police of the police district in which the offence is 
 committed, or of two justices of the peace, or of the 
 
 {r) Everett v. Collins, 2 Camp. {t) See per Lord EUenborough, 
 
 515; see Stuckfield v. Sincl, ante, Everett y. Collins, 2 Camp. 516; aud 
 p. 31. see Chit. Contr. 10th ed. 682. 
 
 (?) IIopMnsY.Warc, L. E., 4 Ex. («) Smith v. Ferrnnd, 7 B. & C. 
 
 268; 38 L. J., Ex. 147. 19 ; Chit. Contr. 10th ed. GSS. 
 
 (.»•) 2 Inst. cap. 31, p. 220. 
 
 d2 
 
36 
 
 CONTRACTS CONCERNING HORSES, ETC. 
 
 Farmers not 
 within sta- 
 tute. 
 
 Sale by a 
 Ilorscdcaler. 
 
 By an orcli- 
 naiy person. 
 
 Subseqiient 
 ratification of 
 a contract. 
 
 stipendiary magistrate having jurisdiction in tlie place 
 where such offence is committed. 
 
 A farmer has been held not to be within section 1 of the 
 29 Car. 2, c. 7, on the ground that he is not " a tradesman, 
 artificer, workman, or ejusdon generis with any of these" (v/). 
 
 A Ilorsedealer cannot maintain an action upon a con- 
 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 Feiinell v. Rieller (z) on a 
 motion for a new trial, and Mr. Justice Bayley delivered 
 the following judgment : " This was an action upon the 
 warranty of a Horse. The plaintiffs were Ilorsedeakrs, 
 and the Horse was bought and the warranty given on a 
 Sunday ; and the only question was, whether, under the 
 29 Car. 2, c. 7, the purchase was illegal, and the plaintiffs 
 precluded from maintaining the action. That the pur- 
 chase of a Horse by a Ilorsedealer is an exercise of the 
 business of ]iis ordinary calling no one can doubt. The 
 act does not apply to all persons, but to such only as have 
 some ordinar// calling. In Druri/ v. De la Fontaine {a) 
 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 contract on a Su)ida//, 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 exercise of the business of 
 his ordinary calling. His expression, that the contract 
 would be raid, 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 Court in Bloxsome v. Williams'^ (b). 
 
 "Where neither parties are Ilorsedcalers, a contract be- 
 tween them for the sale of a Horse is good, though made 
 on Sunday ; and this was recognized by Mr. Justice 
 Bayley in the last case, as having been distinctly laid 
 down by Lord Mansfield in Drury v. De la Fontaine, 
 
 Where a bargain for some cattle was made, and the 
 price agreed on, on a Saturday evening, subject to the 
 defendant's approval of the beasts upon inspection next 
 33 L. J., M. 
 
 (y) E. V. Silvester 
 C. 79. 
 
 (z) Fennell and another v. liidkr, 
 5 B. & C, 406. 
 
 {a) Drtiri/ v. De la Fontaine, 3 B. 
 & C. 232 ; but see per Parke, J., 
 Smith V. Sparroic, 4 Bing. 88. 
 
 (i) Bloxsome v. Williams, 1 
 Taunt. 135 ; -S. C. 3 B. & C. 232. 
 
SUNDAY DEALING. 37 
 
 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 pro- 
 mise was sufficient on a quant urn meruit, or as a ratification 
 of the agreement of the Saturday (c). 
 
 But a party cannot sue on a breach of warranty if he Breach of 
 take it on a Sunday from a pgrson he knows to be a Horse- warranty 
 dealer. However, where an innocent party brings an Sunday, 
 action on the breach of a warranty given to him by a 
 Jlorsedealer 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 IjIox- 
 some V. Williams {d), where an action was brought on the 
 warranty of a Horse, and an objection was taken that it 
 had been given on a Sunday. It ajipeared that the de- 
 fendant was a coach proprietor and Horsedealer, and that 
 the plaintiff's son was travelling on a Sunday in the de- 
 fendant'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 bargain that the 
 defendant exercised the trade of a Horsedealer. 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 Sunda// 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 discharged 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 nothiag was done to bind the bargain. 
 The contract, therefore, 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." 
 
 (c) WUUamsv. Paul, 6 Bing. 653. {d) See note ib), ante. 
 
( 38 ) 
 
 CHAPTER II. 
 
 HORSEDEALERS, REPOSITORIES AND AUCTIONS. 
 
 HOESEDEALEE. 
 
 Definition of a Horse-dealer .... 38 
 
 ji Seller on Commission id. 
 
 The Proprietor of Aldridge' s , . 39 
 Ko Duty payable by a Horsedealer id. 
 Horscdealer when a Trader within 
 BankrujJtcy Act id. 
 
 Kepositoeies and Auctions. 
 
 An Auctioneer id. 
 
 Liable to an Action for Negligence 40 
 
 Or for Conversion id. 
 
 Selling Horse comp)riscd in Bill of 
 Sale 41 
 
 Horse sent to a Repository id. 
 
 Auctioneer'' s Possession id. 
 
 An Auctioneer canset up Jus tertii 42 
 
 Interpleader by Auctioneer id. 
 
 Goods privileged from Distress .. id. 
 
 His Right to remain on the Pre- 
 mises 43 
 
 Auctioneer or Clerk Agent of both 
 Parties id. 
 
 Purchaser'' s Name signed to a 
 Catalogue id. 
 
 Printed Particulars of Sale .... 44 
 
 An incorrect Catalogue .... .... id. 
 
 A liiniicd IFarranty id. 
 
 JFhere it applies only to Sound- 
 ness 45 
 
 Trial of a Horse warranted quiet 
 in Harness 46 
 
 Notice of the Conditions of Sale. . id. 
 
 Notice of Particulars 47 
 
 JFhere a Bidder may retract .... id. 
 
 Sale " tviihouf reserve'''' id. 
 
 Effect of Advert'isement 48 
 
 Warranty of Ownership id. 
 
 Auctioneer not disclosing h is Pr'm- 
 cipal 49 
 
 Liabd'dy for Non- Delivery .... id. 
 
 Puffoig id. 
 
 Person employed to bid 50 
 
 Eff'ect of previous Private IFar- 
 ranty 51 
 
 Agreement not to b'ul against each 
 other id. 
 
 Mock Auctions id. 
 
 Purchaser may transfer his Bar- 
 gain id. 
 
 Where Party refuses to take Goods id. 
 
 Goods resold without comnmni- 
 eating luith Purchaser 52 
 
 Auctioneer proper Pccrty to receive 
 the Price id. 
 
 Has no Authority to receive a Bill 
 of Exchange id. 
 
 He is Stakeholder for both Parties id. 
 
 Effect of this Attribute id. 
 
 As to Interest 53 
 
 Auct'ioncer'' s Lien id. 
 
 When the Price vests in the Fendor id. 
 
 Price obtained by Principal's 
 Fraud id. 
 
 Agent not declaring himself to be 
 
 so 54 
 
 . . id. 
 
 Auct'ioncer^ s Commission 
 
 Definition of 
 a Horse- 
 dealer. 
 
 A seller on 
 Commission. 
 
 HORSEDEALER. 
 
 A Horscdealer, strictly, is a person who by liis traffic " dis- 
 tributes" Horses (f/). And by 29 Greo. 3, c. 49, s. 5, he 
 is clearly defined to be a person who " seeks his living by 
 buying and selling Horses" {a). 
 
 It has not however been decided, whether a person who, 
 for Commission, sells by auction or private contract the 
 
 («) Alloi V. Sltarp, 2 Excli. 357. 
 
HORSEDEALER. 39 
 
 Horses of others, is a Horsedealer within the Assessed Tax 
 Acts. 
 
 The Judges at Serjeants' Inn held the proprietor of ThoPro- 
 Aldridge's Kepository to be a Horsedealer. When the pi'ietor of 
 case came before the Court of Exchequer, Mr. Baron ^<l^'i<^^ge ^■ 
 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 word ' Horsedealer ' 
 in these statutes, was wrong ; if I were forced to give an 
 oj)iuion, it might be in accordance with theirs" (b). 
 
 The duty which was formerly payable by a Horsedealer No duty pay- 
 has been repealed by the 37 Vict. c. IG, s. 11, which '^^e by 
 provides that duties on licences for exercising or carrying '^^^^ ^^ ^^' 
 on the trade of Horsedealers shall cease to be payable. 
 
 Though all debtors are now liable to become bank- A Horso- 
 rupts (c), yet the distinction between traders and non- 'dealer when a 
 traders retains its importance, inasmuch as the test of the Bank- 
 bankruptcy varies in the case of traders and non-traders ruptcy Act. 
 (as defined before the Act of 1861), and many acts, which 
 in the case of a trader would be acts of bankruptcy, would 
 not justify an adjudication in the case of a non-trader. 
 It must therefore be borne in mind that a person who 
 seeks his living by buying and selling Horses (d), or who 
 buys Horses for the express purpose of gaining by it (e) as 
 part of his business (/), which is a question for the Jury {[/), 
 is a trader. 
 
 REPOSITORIES AND AUCTIOXS. 
 
 An Auctioneer is solely the agent of the seller of the An Anc- 
 goods, until the sale is effected, and then he becomes also t^oneer. 
 the agent of the buyer for particular purposes {h). For 
 when he signs the printed particulars of sale, he signs 
 them as the agent of the purchaser {i). But as soon as 
 the auction is over, the Auctioneer loses his distinctive 
 attributes; and to sales afterwards effected by him, the 
 rules of ordinary sales alone are applicable (/.•) . 
 
 (3) Allen v. Sharp, 2 Ex. 352, 66. 
 
 366. (/-/) Wright v. Bird, 1 Price, 20. 
 
 (c) Bankruptcy Act, 1861, 24 & [h) Story on Sales, 61 ; Williams 
 25 Vict. c. 134, s. 69. And see v. Millington, 1 H. Bla. 81 ; Em- 
 32 & 33 Vict. c. 71, s. 6. merson v. Jlcelis, 2 Taunt. 38 ; Ben- 
 
 [d] Martin v. Nightingale, 3 jamin on Sales, 2nd ed. 202. 
 Bing. 421. (() See per Eolfe, B., Eden v. 
 
 ((■) Bartholomew v. Sherwood, 1 Blake, 13 M. & W. 619. 
 T. R. 573. (/>•) Mews v. Carr, 26 L. J., Ex. 
 
 (/) Belly. Young, 24 L. J., C. P. 39 ; Marsh v. Jclf, 3 E. & E. 234, 
 
40 
 
 HOKSEDEALERS, REPOSITORIES AND AUCTIONS. 
 
 Liable to an 
 action for 
 ne^lio-ence. 
 
 Or fur con- 
 version. 
 
 An action lies against an Auctioneer employed to con- 
 duct a sale for negligence in his management of it. As 
 ■where the seller had to make the purchaser compensation, 
 in consequence of the property having been improperly 
 described by the Auctioneer who had been employed to 
 prepare particulars, and sell the property (/). 
 
 And where an Auctioneer, by an unauthorized sale, 
 deprives another of his property permanently or for an 
 indefinite time, he is liable to an action for conversion (w) . 
 The case of Cochrane v. Upmill {n) is an instance of wrongful 
 conversion by an Auctioneer. In that case the plaintiff 
 by agreement let some cabs on hire to one Peggs, who took 
 them to the defendant, who was an Auctioneer, and ob- 
 tained an advance on them. The defendant by Peggs' 
 instructions, and without any notice of the plaintiff's pro- 
 perty in the goods, subsequently sold them by auction, and 
 having recouped himself for his advance, commission, and 
 expenses, handed over the balance to Peggs ; and it was 
 held by the Court of Appeal (affirming the judgment of 
 Lord Coleridge, C. J.), that the plaintiff* was entitled to re- 
 cover damages from the defendant for conversion of the 
 goods ; and Bramwell, L. J., in the course of his judgment 
 said, " It is, no doubt, a very hard case for the defendant 
 who has acted innocently throughout in the matter ; but 
 setting aside the hardship of the case, the law applicable to 
 it is quite clear. Here is Peggs, a man who is not the true 
 owner of these goods, but appearing to act as such, but 
 who has no power whatever to sell, takes them to the de- 
 fendant and gets a loan from him on them. The defen- 
 dant keeps them and finally sells them in such a way as to 
 pass the property in them to the buyers, and if that is not 
 a conversion, then I think there can be no such thing. 
 Supposing a man were to come into an auction yard hold- 
 ing a Horse by the bridle and to say, ' I want to sell my 
 Horse : if you wall find a purchaser I will pay commission.' 
 And the Auctioneer says, ' Here is a man who wants to sell 
 a Horse ; will anyone buy him ?' If he then and there finds 
 him a purchaser and the seller himself hand over the Horse, 
 there could be no act, on the part of the Auctioneer, which 
 could render him liable to an action for conversion. But, 
 
 (0 rarhrv. Farchrothcr, 2'Weekly 
 Eep., C. B. 370; and see Torrance 
 V. Bolton, L. R., 8 Ch. 118; 42 
 L. J., Ch. 177. 
 
 {m) mart v. Botf, L. R., 9 Ex. 
 86, 89 ; 43 L. J., Ex. 81 ; 30 L. T., 
 N. S. 25 ; 22 W. R. 414. 
 
 {n) 40 L. T., N. S. 744; 27 
 W. R. 770. 
 
REPOSITORIES AND AUCTIONS. 41 
 
 looking at this case, there is a clear dealing with the pro- 
 perty and exercising dominion over the chattel, and a 
 delivery of it by the defendant to another person to do 
 what he likes with it." 
 
 But where the plaintiffs were the holders of a Bill of Selling' 
 Sale including certain Horses and harness ; and the grantor Worses com- 
 of the Bill of Sale, without the plaintiff's knowledge, took of sale. 
 the Horses and harness to the defendant's Repository for 
 sale by auction and they were entered in the catalogue, 
 the defendant knowing nothing of the Bill of Sale ; but 
 before the auction the grantor of the Bill of Sale sold the 
 Horses and harness by j)rivate contract in the defendant's 
 yard, and the purchase-money was paid to the defendant, 
 who deducted his commission and paid the balance to the 
 seller, the Horses and harness being delivered to the pur- 
 chaser ; it was held that the defendant was not guilty of 
 conversion (o). For the defendant had received the Horses 
 and harness from the grantor of the Bill of Sale, and had 
 delivered them back to the person to whom the grantor of 
 the Bill of Sale had given a delivery order ; he had not 
 claimed to transfer the title, and he had not purported to 
 sell ; all the dominion he exercised over the chattels was to 
 re-deliver them to the man, the person from whom he 
 had received them had told him to re-deliver them {p). 
 
 Where a Horse is sent to a common Bepository, for the Horse sent to 
 sale of Horses, an authority to sell is implied, although no ^ Kei^ositoiy. 
 authority was ever given in fact, and the owner will be 
 bound by a sale to a bond fide purchaser, although made 
 without his express consent [q). 
 
 Where a Horse is sold at a Bepository, the possession Auctioneer's 
 is in the Auctioneer, and it is he who makes the contract, po'^sestsion. 
 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- 
 vercd{r), but not in a case where the right of a third 
 person intervenes, and is established (-s). But where, as 
 in the north of England, there is a sale by auction of 
 Horses and cattle on the owner's premises, it is doubtful 
 
 (o) National Mercantile Bank v. (r) See Williams v. Milling ton, 1 
 
 Mymill, 44 L. T., N. S. 767— C. A. H. Bla. 85 ; Robinson v. Ruttcr, 24 
 
 Eeversiug Ibid. 307— Lopes, J. L. J., Q. B. 250. See also Bacis v. 
 
 {p) Ibid, per Bramwell, L. J. Artinr/stall, 49 L. J., Cli. G09 ; 42 
 
 {q) See Fickerinf/ v. Busk, 15 L. T., N. S. 507; 29 W. R. 137. 
 
 East, 38, 45; Chit. Contr. lltli («) Dickenson v. Naul, i B. & Ad, 
 
 ed. 195. 638. 
 
42 
 
 HORSEDEALERS, REPOSITORIES AND AUCTIONS. 
 
 An Auc- 
 tioneer can 
 set lip /MS 
 tertii. 
 
 Interpleader 
 by Auc- 
 tioneer. 
 
 Goods privi- 
 leged from 
 distress. 
 
 whether the Auctioneer has such an interest in them as 
 to recover the price {t). 
 
 An Auctioneer can set up the jus tertii, if he defends 
 the action upon the right and authority of the third person, 
 to a claim for the proceeds of a sale of goods, which he has 
 been employed to sell by auction by a person who had 
 gained possession of them by an illegal distress (w) . 
 
 An Auctioneer may interplead where he has sold goods, 
 and the proceeds of the sale are claimed by a third 
 party (.r) ; and it seems that he is entitled to do so not- 
 withstanding that he claims a lien on the proceeds of the 
 sale for his commission, for in such cases he claims no, 
 interest in the corpus of the property {y) . But where the 
 claims are not co-extensive, an auctioneer has no right to 
 interplead. Thus, in a case where the defendant, the 
 proprietor of a Horse repository, sold there by public 
 auction a Horse to the plaintiff, warranted quiet to ride 
 and in harness, but subject to a condition, by which, if 
 considered by the buyer incapable of working from any 
 infirmity or disease, it might be returned on the second 
 day after the sale, and the matter determined by veterinary 
 surgeons according to the terms provided for in such con- 
 dition. The Horse was returned accordingly by the 
 plaintiff, who demanded to have back the money he had 
 paid for the piu-chase, and this being refused, he brought 
 an action against the defendant for damages for breach of 
 the warranty, and the party who had placed the Horse at 
 the repository for sale, claimed of the defendant the 
 proceeds of the sale, stating that the Horse had left the 
 repository perfectly sound ; it was held that the defendant 
 was not entitled to an interpleader order {£). 
 
 Goods sent to an Auctioneer to be sold on premises 
 occupied by him are privileged from distress for rent {a) ; 
 although he may sell in a place let to him merely for 
 
 (t) See per "Wilson, J., Williams 
 V. MilH>ir/toH, 1 H. Bla. 86. 
 
 {u) Biddle V. Boml, 6 B. & S. 
 225; 34 L. J., Q. B. 137. 
 
 (.r) Best V. Hayes, 32 L. J., Ex. 
 129. 
 
 iy) Ibid., per Martin, B. In 
 this case the Court of Exchequer 
 refused to follow the decision in 
 Chancery in Mitchell v. Hayne (2 
 Sim. & S. 63), where it was held 
 that an Auctioneer, in such a case, 
 
 covdd not file a bill of interpleader. 
 As to interpleader generally, see 1 
 & 2 Wm. 4, c. 58, ss. 1, 2, 7; 23 
 & 24 Vict. c. 126, ss. 12—18 ; 36 & 
 37 Vict. c. 66, Sch. Ord. 1, r. 2. 
 
 (;) Wright v. Freeman, 48 L. J., 
 C. P. 276; 40 L. T., N. S. 134; 
 ibid. 358, C. A. 
 
 (rt) Adams v. Grave, 1 C. & M. 
 380 ; Williams v. Holmes, 22 L. J., 
 Ex. 283. 
 
REPOSITORIES AND AUCTIONS. 43 
 
 the occasion, or by a person witliout authority, or the 
 occupation has been acquired by the Auctioneer by any 
 act of trespass {b) . 
 
 An Auctioneer, who is employed to sell goods by public His right to 
 auction, has not such an interest as will make the licence remamonthe 
 to enter the premises irrevocable. 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 (c). 
 
 After a sale is effected, the Auctioneer may in general Auctioneer or 
 be considered as the agent and witness of both the parties 9^^^^ ageiit of 
 to a contract ; but a difficulty arises in the case where " ^'^^ ^^^' 
 the Auctioneer sues as one of the contracting parties {d), 
 because the agent, whose signature is to bind the de- 
 fendant, must not be the other contracting party upon 
 the record {e). However, an entry made in a sale book 
 by the 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 Statute of Frauds ; for the clerk is not identified with 
 the Auctioneer (who sues), and in the business which lie 
 performs of entering the names, &c., he is impliedly 
 authori2;ed by the persons attending the sale to be their 
 agent (/). 
 
 But if the purchaser's name be signed to a Catalogue, it Purchaser's 
 must be connected with or refer to the conditions of sale to ^ame signed 
 make the contract valid (g) ; and it is not sufficient if they logue. 
 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 {h). 
 
 {b) Brown v. Arumlell, 10 C. B. p. 27 ; Bird v. Bolton, 4 B. & 
 
 54 ; S. C. IG L. T. 126. Adol. 443 ; see Sugd. Vend. & 
 
 (e) TapUn v. Florence, 10 C. B. Purch. 14th ed. 147. 
 
 744 ; see -S'. C. 15 Jur. 402. {/)) Ilindc v. Whitchoiise, 7 East, 
 
 {d) Wright v. Dannah, 2 Camp. 568. 
 
 203. {h) Kenworthy v. Scholficld, 2 B. 
 
 (e) Farehrothcr v. Simmonds, 5 B. & C. 945. S(?e also Pierce v. Corf, 
 
 & A. 333. And sec Sharman v. L. K, 9 Q. B. 210; 43 L. J., 
 
 Brandt, L. E., 6 Q. B. 720; 40 Q. B. 52; 29 L. T., N. S. 919; 22 
 
 L. J., Q. B. 312 ; 19 W. R. 036, W. E,. 299 ; Eishton v. Whatmorc, 
 
 Ex. Ch. L. R., 8 Ch. D. 467 ; 47 L. J., Ch. 
 
 (/) 29 Car. 2, c. 3, and see ante, 629 ; 26 W. E,. 827. 
 
44 
 
 HORSEDEALERS, REPOSITORIES AND AUCTIONS. 
 
 Printed Par- 
 ticiilars of 
 a Sale. 
 
 An iucoiTCct 
 Catalo"-uc. 
 
 A limited 
 Avarranty. 
 
 It is a useful and proper general rule that an Auc- 
 tioneer by parol explanation at the time of sale shall not 
 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 bo different from the description ; Gunnis v. 
 Ecliart {I), Pojccll v. Udmunds (A-), and many other cases 
 collected in Mr. Phillip's book on Evidence, show the 
 2:)rinciple 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 (/). 
 
 But when the contract is not in waiting, a mistake in 
 the Catalogue may be explained by the Auctioneer. 
 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- 
 tioneer stated publicly from his box, and in the hearing 
 of tlie 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 Avas 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" {m). 
 
 By the conditions of sale at Repositories and public 
 auctions a specified short time is usually allowed, within 
 
 (i) Guiinis V. Echart, 1 H. B. {I) SJtcUon v. liviiis, 2 C. & J. 
 
 289. 41(3. 
 
 ik) FoutUy. Edmunds, 12 East, 6. (m) Eden v. Ela/cc, 13 M. & W. 
 
 G14. 
 
REPOSITORIES AND AUCTIONS. 45 
 
 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, 
 warranted sound. At the time of sale there was a board 
 fixed on the wall of the liepository 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 day following, when the sale should become 
 complete and the seller's responsibility terminate, unless a 
 notice and Yeterinary Surgeon's certificate of unsound- 
 ness were given in the meantime. The -rules were not 
 particularly referred to at the time of this sale and war- 
 ranty. 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 evidence was given to show that the 
 defendant knew of it, and the Horse was shown at the 
 sale under circumstances 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 " {ii). 
 
 If a horse sold at a public auction be warranted sound Whore it ap- 
 and six years old, and it be one of the conditions of sale pli^s ouly to 
 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 tlien 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 
 
 («) Byicater v. Richardson, I A. & E. 508 ; S. C. 3 N. & M. 748 ; 
 Mesnarclv. Aldriclge, 3 Esp. 271 ; and see post, p. 117. 
 
46 
 
 HOESEDEALERS, REPOSITORIES AND AUCTIONS. 
 
 Trial of a 
 Horse war- 
 ranted quiet 
 in harness. 
 
 Notice of the 
 conditions of 
 
 be confined solely 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, many accidents may happen to the Horse between 
 the time of sale and the time when the Plorse may be 
 returned, if no time were limited. But the circumstance 
 of the ago of the Horse is not open to the same diffi- 
 culty (o) . 
 
 By the rules of some Repositories every Horse sold, 
 warranted quiet in harness, is, in cases of dispute, to be 
 tried by an impartial person ; and the expense of trial, in 
 case 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 (p). 
 
 Where the Auctioneer declares that the conditions of 
 a sale by auction are as usual, there is a sufficient notice 
 of them to purchasers {q), where they are printed and 
 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 w\arranted 
 sound. The sale took place on the "Wednesday. 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 
 
 (o) Ijuchanayi v. Parnsliaic, 2 T. 
 R. 74G. 
 
 {p) Hardingham v. Allen, 5 C. B. 
 797. 
 
 (r/) By the law of Scotland, a 
 purchaser at a public auction can- 
 
 not be allowed to plead, that he 
 was ignorant of the articles and 
 conditions of sale. See Lalng v. 
 Ilaln, 2 S. M. & P. 395. (Court of 
 Sess. Sco.) 
 
REPOSITOEIES AND AUCTIONS. 47 
 
 goods lost above tlie value of 5/., unless entered as such, 
 the ijostiug 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 Plorse within two 
 days, which he has not done; I therefore think the plaintiff 
 must be nonsuited" {>•). 
 
 But when property is sold in lots described in particulars Notice of 
 of sale, a vendee is only affected with notice of what Particulars, 
 concerns the lots which he purchases, and is not to be 
 taken as having read all the particulars of all the lots (s). 
 
 A Bidder at an auction under the usual conditions that Where a 
 the highest bidder shall be the purchaser, may retract his ^^'Wer may- 
 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 
 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 (/) . 
 
 Where a Horse is to be sold "without reserve," and Sale"with- 
 the vendor buys it, the highest bo)id fide bidder is entitled °"* reserve." 
 to recover damages from the Auctioneer. In the case of 
 Warlow V. Harrison {u), the sale was stated to be "with- 
 out reserve," and one of the printed conditions was, 
 " any lot ordered for this sale, and sold by private con- 
 tract by the owner or advertiser 'without reserve,' fnid 
 bought by the owner, to be liable to the usual commission 
 of 5/. per cent." There was also the usual condition that 
 the highest bidder should be the buyer. After a bond fide 
 bid by a third person, the owner advanced on the bidding, 
 and the lot was knocked down to him. The Court of 
 Queen's Bench held that the owner could not claim the lot 
 as sold to the Auctioneer, against whom the action was 
 brought, and that they were not called upon to say whether 
 
 {r) Mesnard v. AUrldge, 3 Esi^. {t) Payne v. Cave, 3 T. R. 148 ; 
 
 271. and see Roullcdgc v. Grant, 4 Bing. 
 
 (s) Curtis V. Thomas, 33 L. T., C53 ; Head v. 'Biggon, 3 M. & R. 
 N. S. 664, V.-C. II. 97. 
 
 (m) 29 L. J., Q. B. 14. 
 
48 
 
 HORSEDEALERS, REPOSITORIES AND AUCTIONS. 
 
 Effect of ad- 
 vertisement. 
 
 Warranty of 
 ownership. 
 
 there was any or what remedy on the conditions of sale 
 against the vendor, who violated the condition that the 
 article should be bond fide sold " without reserve," but they 
 were clear that the bidder had no remedy against the 
 Auctioneer, whose authority to accept the offer of the 
 bidder had been determined by the vendor before the 
 hammer had been knocked down. But in the Exchequer 
 Chamber, to which this case was carried, three Judges held 
 that the jiurchaser was entitled to recover damages, for they 
 thought that the highest bond fide bidder at an auction may 
 sue the Auctioneer as upon a contract that the sale shall 
 be " without reserve," and that the contract is broken upon 
 a bid being made by or on behalf of the owner, whether it 
 be during the time when the property is under the hammer, 
 or it be the last bid on which the property is knocked down. 
 They did not doubt that the owner at any time before the 
 contract is legally comj)lete might revoke the Auctioneer's 
 authority. As to the conditions, they held that tlie owner 
 could not be the buyer ; and that the Auctioneer ought 
 not to have taken his bid, but to have refused it, stating 
 as his reason that the sale was " without reserve." 
 Inclining to differ from the Queen's Bench, they rather 
 thought the bid of the owner was not a revocation of the 
 Auctioneer's authority. The other two Judges agreed, but 
 founded their judgment upon the evidence that the 
 Auctioneer had not authority to sell except " without 
 reserve," and thought that there ought to be a count added 
 by way of amendment, stating an undertaking by the 
 Auctioneer that he had authority to sell " without reserve," 
 and a breach of that undertaking. 
 
 But where an Auctioneer advertised in the London 
 papers that a sale by auction would take place on a 
 particular day in a country town, and also circulated cata- 
 logues specifying the articles to be sold ; and a person 
 attended the sale intending to buy certain articles specified 
 in the catalogue, but on the day of sale they were with- 
 drawn by the Auctioneer ; it was held that there was no 
 implied contract by him to indemnify the intended pur- 
 chaser against the expense and inconvenience that he had 
 incurred, as the advertising was a mere declaration of 
 intention to sell {x). 
 
 A statement that a Horse is the property of the vendor, 
 
 {x) Harris v. NlcJicrson, L. E,., 8 Q. 
 28 L. T., N. S. 410 ; 21 W. K. 635. 
 
 B. 286; 42 L. J., Q. B. 171; 
 
REPOSITORIES AND AUCTIONS. 49 
 
 made by himself or agent, is a sufficient warranty of the 
 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 has 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 purchaser 
 would probably give a much higher price for a Horse 
 belonging to the stud in question, than for one without a 
 character (//) ; and the following case goes much further, 
 for where the defendant, erroneously supposing that a 
 picture had been in the possession of Sir F. Agar, pur- 
 chased it from the agent of the plaintiff, who, though 
 aware of the defendant's mistake, did not undeceive him ; 
 Lord Ellenborough held, that the plaintiff could not re- 
 cover the sum for which the picture was sold, the price 
 being probably enhanced by the error {z) . 
 
 Where an Auctioneer sells a commodity without saying Auctioneer 
 on whose behalf he sells it, in such case the purchaser is "?* disclosing 
 entitled to look to him personally for the completion of the "'^ pimcipa . 
 contract {a), and the same rule, according to the general 
 law of principal and agent, applies to purchasers [h). 
 
 An Auctioneer is not in the position of an ordinary Liability for 
 agent, but may be personally liable for non-delivery of iioii-<lelivery. 
 goods, even though he sells for a disclosed principal, and 
 although a condition of sale, by which goods are to be 
 cleared out by the purchaser within a given time, has not 
 been complied with, at all events where such condition is 
 not a condition precedent (c) . 
 
 Where 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 (c/). The law 
 on this point was 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 Alcbidge's 
 Repository. It appeared that it was one of the conditions 
 
 {y) Bexwell v. Christie, Cowp. jmrt, 9 B. & C. 86 ; and post, 54, 
 
 397; and see Bradshaiv^ s case, there Williamson v. Barton. 
 
 cited. (c) Woolfe v. Home, L. R., 2 Q. 
 
 (--) mil V. Gray, 1 Stark. N. P. B. D. 355"; 46 L. J., Q. B. 534; 36 
 
 C. 434. L. T., N. S. 705 ; 25 W. R. 728. 
 
 («) Hanson v. Roberdeau, 1 Peake, {d) Bilmore v. Hood, 5 N. C. 97; 
 
 163. Green v. BaverstocJc, 32 L. J., C. P. 
 
 {b) As to principal and agent, 181. 
 see the rule iu Thompson v. JJaren- 
 
 O. E 
 
50 HORSEDEALEHS, REPOSITORIES AND AUCTIONS. 
 
 of sale, " tliat each. Horse should be sold to the highest 
 bidder;" that the plaintiff's groom attended at the 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 
 29/., he and the groom were the only bidders ; 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 certain sum, and a person 
 (employed by the seller) whom he does not know attends 
 and pulfs against him, and in consecpence of that he is 
 compelled to pay a much larger price than he would other- 
 wise have paid. Is not this a gross fraud ? I am pre- 
 pared to nonsuit the plaintiff." 
 Person em- It was then proved for the plaintiff, by the evidence of 
 
 ployed to bid. ^]^g 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 was 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 the defendant, under them, was entitled to have the 
 Horse at the next highest bidding to that of the only fair 
 bidder" {e). The Court of Common Pleas confirmed 
 Chief Justice Best's ruling at nisi prius ; and Mr. Justice 
 Park said : "I entirely concur in the opinion expressed 
 by Lord Mansfield ;" as to which Lord Kenyon, in Howell 
 V. Castle (/), said : " The whole of the reasoning of Lord 
 Mansfield in Bexicell v. Christie [g] is founded on the 
 
 [e) Croicder v. Austin, 2 0. & P. 634. 
 208. iff) Bexwell v. Christie, Cowp. 
 
 (/) Howard v. Castle, 6 T. R. 396. 
 
EEPOSITORIES AND AUCTIONS. 51 
 
 noblest principles of morality and justice, — principles that 
 are calculated to preserve honesty between man and man. 
 The circumstance of puffers bidding at auctions has 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 com- 
 prehensive mind saw it in its true colours, and made a 
 precedent which I am happy to follow" (A). And this 
 decision has been further confirmed by a case in the 
 Court of Exchequer, where it was held, that in a sale by 
 auction without reserve, if a puffer be employed without 
 notice of his being there to protect the interest of the 
 seller, the sale is void (/). 
 
 The law is so jealous of the rights of boud fide bidders, Effect of pre- 
 that it has been held as doubtful (in the Court of Common ^^°^^ P^'^^*^*^ 
 Pleas) whether a previous private warranty to a jjerson ^^^"^"^ ^" 
 who became an unsuccessful bidder would not avoid the 
 sale to a third party ; for it was like puffing, and in a sale 
 by auction, all have a right to suppose that they are bid- 
 ding upon equal terms (/). 
 
 An agreement made by two persons not to bid against Agreement 
 each other, but that one of them should bid up to a certain ^J^ ^^^ Yl 
 sum, and that the lot should subsequently be divided other, 
 between them, is not illegal, and therefore furnishes no 
 ground for opening the biddings, or annulling the sale [k) . 
 
 A mock auction with sham bidders, for the purpose of M:ock auc- 
 selling goods at prices grossly above their worth, is an *^°^®' 
 offence at common law, and the persons aiding and abet- 
 ting such a proceeding may be indicted for a conspiracy 
 with intent to defraud (/). 
 
 A purchaser at an auction can, before payment, make Purchaser 
 a complete bargain and sale of the article which he has may transfer 
 bought, to a third party ; so as to maintain an action for ^^ argam. 
 Goods bargained and sold («?). 
 
 Where a party refuses to take goods he has purchased, -where party 
 
 (h) Crou-der v. Austin, 3 Bing. the rule prevailing in equity. See 
 
 368 ; ,S'. C. 11 Moore, 283 ; and see Sugd. V. & P. 14th ed. 9. 
 JVheeler v. CoUier, M. & M. 126 ; {J) Hoi^kins v. Tanqneray^ 23 L. 
 
 Sugd. V. & P. 24. J., C. P. 162. 
 
 ()■) Thornctt \. Haines, 15 L. J., [k) In re Carew^s Trusts, 26 Beav. 
 
 Ex. 230. Lord St. Leonards in- 187. 
 
 clined to the opinion that the seller (/) Seff. v. Lewis, 11 Cox, C. C. 
 
 should have the right to privately 484. 
 
 appoint one person, within a fixed (»?) Scott v. Englatid, 2 D, & L. 
 
 limit, and only to prevent a sale at 520. 
 an under value, in accordance -with 
 
 e2 
 
62 
 
 HORSEDEALER?, REPOSITORIES AND AUCTIONS. 
 
 refuses to 
 take goods. 
 
 Goods resold 
 without com- 
 municating 
 ■with pur- 
 chaser. 
 
 Auctioneer 
 proper party 
 to receive the 
 price. 
 
 Has no 
 authority to 
 receive a bill 
 of exchange. 
 He is stake- 
 holder for 
 both parties. 
 
 EfiPect of this 
 attribute. 
 
 tliey should be resold, and lie will be liable to the loss, if 
 any, upon the resale {n). 
 
 Thus in Scotland, where some Horses were sold by 
 public auction without stipulation as to credit, and the 
 purchaser allowed two days to elapse without tendering 
 the price. It was held that the seller, who had never 
 ]iarted w'ith 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 differ- 
 ence in the prices, and for the keep of the Horses between 
 the periods of sale and resale, and the expenses of the 
 resale (o). 
 
 An Auctioneer, employed to sell goods for ready money, 
 is the agent of the vendor to receive the price {])) ; but 
 w^here the goods are sold on credit, it depends upon the 
 extent of his authority, Avhich, in the absence of any proof 
 of general authority, must depend upon the conditions of 
 sale ; and where the only authority given to the Auctioneer 
 by these conditions is to receive the deposit money, the 
 vendor reserves to himself or his agent the power to receive 
 the remainder of the purchase-money {q) . 
 
 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 (>•). 
 
 Where, by the terms of a sale by auction, a deposit is 
 to be made with the Auctioneer, he becomes the stake- 
 holder of both parties, and must retain possession of it (-s) ; 
 and if he accepts a less sum than that which is to be paid 
 by the conditions of sale, he cannot afterwards object that 
 too little is paid (/). 
 
 If he parts with the deposit without authority from the 
 vendee, he may be sued for it. Thus, when the Auctioneer 
 received the deposit, and signed the agreement that he 
 would complete the sale, and the vendee found the title to 
 the estate sold defective, it was held that he might bring an 
 
 («) See 31aclea>i v. Diiiui, 4 Bing. 
 729 ; Stoiy on Sales, 348. 
 
 (o) Zaiiiff V. JIaiii, 2 S. M. & P. 
 396. (Court of Sess. Sco.) 
 
 {p) Si/kes V. Giles, 5 M. & W. 
 650; Williams v. Evans, L. R., 1 
 Q. B. 352; 35 L. J., Q. B. 111. 
 
 [q) Sykes v. Giles, 5 M. & W. 
 650 ; lii/nn v. JoUffc, 1 M. & Eob. 
 326. And see Alexander v. Gibson, 
 2 Camp. 555. 
 
 (r) ,Si//,-es v. Giles, 5 M. & W. 
 
 652. And see Williams v. Evans, 
 L. R., 1 Q. B. 352; 35 L. J., 
 Q. B. 111. 
 
 (v) See Edwards v. Sodding, 5 
 Taunt. 815; Gray y. Gutteridge, 3 
 C. & P. 40 ; Story on Contracts, 
 64. And see Sweeting v. Turner, 
 L. R, 7 Q. B. 310; 41 L. J., 
 Q. B. 58 ; 25 L. T., N. S. 796 ; 20 
 W. R. 185. 
 
 (/■) Hanson v. Rohcrdeau, 1 Peake, 
 N. P. 163. 
 
KEPOSITORIES AND AUCTIONS. 53 
 
 action for money had and received against the Auctioneer 
 for the deposit, though the latter had paid it over to the 
 vendor without any notice from' the purchaser not to do so, 
 and before the defect of title was ascertained {u) ; for in 
 strict law the Auctioneer, being a stakeholder, is not en- 
 titled to notice of the contract being rescinded (,r) . 
 
 An Auctioneer, being a mere stakeholder, is not liable As to intc- 
 f or interest on the deposit to the vendor {y) . ^"'^^t- 
 
 An Auctioneer has a lien upon the goods sold by him, Auctioneer's 
 and a right of lien upon the price when paid, for his ^*^^- 
 commission and charges (2). With this object he may 
 bring an action in his own name for the price of the 
 goods sold by him. Accordingly, where the defendant 
 pleaded to a declaration for the price of a Horse sold and 
 delivered by the plaintiff, who was an Auctioneer, that 
 the plaintiff sold the Horse as Auctioneer, agent and 
 trustee for K., and that defendant had paid K. before 
 action brought, this plea was held on demurrer to be a bad 
 plea («) . 
 
 Where a Horse is sold at a Repository on certain con- When the 
 ditions, one of which for instance may be, a power to P^'^°® ^^f"^ ^^ 
 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 {p) . 
 
 Where an Agent on a Sale receives as the price of an Price obtained 
 article money olDtained by the fraud of his principal, it is ^y principal's 
 not Money received to the tise of the principal, but to the ^^^ ' 
 use of the purchaser of the chattel. Thus a Horsedealer 
 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 Horsedealer 
 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 (c) applied with the greatest 
 force to this case. And it was said that it would be a 
 
 («) Gray v. Guttericlr/e, 3 C. & P. Robinson v. Rictter, 24 L. J., Q. B. 
 
 40. 250. 
 
 (.(•) Duncan v. Cafe, 2 M. & W. {a) Robinson v. Rutter, 24 L. J., 
 
 244. Q. B. 250. 
 
 {y) Harington v. Hogart, 1 B. & (i) Ilardingham v. Allen, 5 C. B. 
 
 Ad. 577. 796. 
 
 (i) Coppin V. Craig, 7 Taunt. 243 ; (c) Murray v. Mann, 2 Exch. 538. 
 
54 
 
 HORSEDEALERS, REPOSITORIES AKD AUCTIONS. 
 
 Agent not 
 declaring' 
 himself to be 
 so. 
 
 Auctioneer's 
 commission. 
 
 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 he liable to 
 an action at the suit of the purchaser (r/). 
 
 It is still an undecided question, the Court of Exche- 
 quer being equally divided on the point, whether an 
 agent, who does nothing by word or act at an auction to 
 indicate that he is contracting for himself, and who allows 
 the Auctioneer to put down his name as the purchaser, is 
 to be fixed as such, there being thus much of evidence 
 after the sale was over, that he was buying merely as an 
 agent, that the goods were fetched away afterwards by 
 the principal's carts, and made use of by him {e). 
 
 Where an Auctioneer, entrusted with a sale, is the 
 causa causans of the sale, he is entitled to his commission, 
 even though before the actual sale the vendor withdrew 
 the property from sale by him (/). Thus, by the terms 
 of an agreement between the parties, an Auctioneer was 
 to be entitled to a commission, if the estate should be sold 
 by him. The estate was not actually sold by him, but 
 the vendor after the Auctioneer had advertised the sale, 
 and had put up the property for sale by auction, wrote 
 to the plaintiff, and withdrew the property from sale for 
 the present. In the meantime, and before the sale was 
 withdrawn, the vendor and the afterv/ards purchaser were 
 in negotiation for the purchase of the property. In an 
 action by the Auctioneer against the vendor for his com- 
 mission, it was held by the Court of Common Pleas, that 
 under these circumstances the Auctioneer must be held to 
 be the causa causans of the sale, and therefore entitled to 
 his commission {g). 
 
 (d) Stevens v. Zee, Q. B., Nov. 7, 
 1853. 
 
 (e) Williamson V. Barton, Zl L. J., 
 Ex. 170. 
 
 (/) Clark V. Smythies, 2 F. & F. 
 83 ; and see Miller v. Beale, 27 W. 
 R. 403, M. R. 
 
 (.9) Green v. Bartlett, 8 L. T., N. 
 S. 503. 
 
( 55 ) 
 
 CHAPTER III. 
 
 FAIRS AND MARKETS OVERT ; HORSE STEALING AND THE 
 RECOVERY OF STOLEN HORSES. 
 
 Fairs and Maekets oveet. 
 Sales at Fairs and Markets overt . 55 
 
 The General Eule of Law 56 
 
 When Market overt is held .... id. 
 Where Market overt is held .... id. 
 What held to he Market overt 
 
 without the City of London . . id. 
 What held to he Market overt 
 
 within the City of London .... id. 
 Horse '■'an ArticW^ within 10 ^• 
 
 11 Vict. c.U 57 
 
 Fearon v. Mitchell id. 
 
 Where a Horse at a Fair is exempt 
 
 from Distress 59 
 
 Sale of Diseased Animals in ,,, , id. 
 
 HoESE Steaiino. 
 Statiiie of 24: ^- 25 Fict. c. 96 . . 59 
 Description in an Indictment .... id. 
 When the Offence is complete .... 60 
 
 Property given up id. 
 
 Delivery of a Horse to a Stranger id. 
 
 Delivery on Trial 61 
 
 Goods taken without Consent .... id. 
 Appropriation of a hired Horse . . id. 
 Larceny without Proof of Sale . . id. 
 Taking ivith an Intent to use , ... 62 
 Possession Six Months after Loss id. 
 Killing or Maiming Horses .... id. 
 
 Other Animals id. 
 
 Pouring Acid into a Mare's Far . id. 
 
 "Ifaiming and Womiding'^ .... 62 
 Use of Instrument need not he 
 
 p>-oved 63 
 
 Malice id. 
 
 Drugging of Animals Act id. 
 
 Eecovbey of Stolen Hoeses. 
 
 Sale in Market overt 63 
 
 Statutory Regulations 64 
 
 Recovery when sold under these 
 
 Regulations id. 
 
 Owner must prove the Horse teas 
 
 stolen id. 
 
 Sale out of Market overt id. 
 
 Recovery when not sold under 
 
 these Regulations id. 
 
 Proof of Compliance with Statute . 65 
 Rule that Owner must first endea- 
 vour to hring the Thief to Justice id. 
 To be taken ivith Modifications . . id. 
 Where the Action is against a 
 
 Third Party 66 
 
 Fvidence of Conversion id. 
 
 Order for Restitution id. 
 
 Or Action of Trover id. 
 
 Order of Police Magistrate 67 
 
 Where no Special Damages can he 
 
 awarded id. 
 
 Replevin /or unlawful Taking . . 68 
 Wrongful Sale by Agent of Horse 
 
 entrusted to him id. 
 
 FAIRS AND MARKETS OVERT. 
 
 The general rule of law is, that all sales and contracts Sales at Fairs 
 of anything vendible in Fairs or Markets overt (that is, and Markets 
 open), shall not only be good between the parties, but 
 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 ancestors 
 prohibited the sale of anything above the value of twenty 
 
56 
 
 FAIRS AND MARKETS OVERT, ETC. 
 
 The general 
 riile of law. 
 
 When market 
 overt is held. 
 
 Where market 
 overt is held. 
 
 What held to 
 be Market 
 overt without 
 the City of 
 London. 
 
 What held to 
 be Market 
 overt within 
 the City of 
 London. 
 
 pence -unless in open Market, and directed every bargain 
 and sale to be contracted in the presence of credible 
 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 exception 
 to this rule is the case of sales in Market overt (b), when 
 the purchaser's title is good against all the world (c). 
 
 This exception, however, only applies to bond Jide sales 
 commenced and perfected in Market overt ; that is, where 
 the goods sold are actually in the Market, and where both 
 the sale and delivery of them take place therein {d). It 
 does not extend to gifts ; nor to sales of pawns taken to any 
 pawnbroker in London, or within two miles thereof ; nor 
 to sales of goods belonging to the Sovereign ; nor to sales 
 made between sunset and sunrise (e). 
 
 Market overt in the country is only held on the special 
 days provided for particular towns by charter or pre- 
 scription, but in London every day, except Simday, is 
 Market day {a). 
 
 The Market place, or spot of ground set apart by 
 custom, or established under powers conferred by a modern 
 Act of Parliament (/'), for the sale of particular goods, is 
 also in the country the only Market overt, but in the 
 city of London by the custom of London every Shop 
 {except pau-JibroJiers) in which goods are exposed publicly 
 for sale is Market overt, but for such things only as the 
 owner professes to trade in (a). 
 
 Without the city of London, Market overt is an open, 
 public and legally-constituted Market (g). Therefore a 
 mere Repository for Horses, such as Eea's Repository in 
 Southwark, is not Market overt {h). 
 
 But within the city of London a sale in an open shop 
 of goods usually dealt in there, such sale being of the 
 goods in bulk and not by sample, and there not only 
 commenced but also completed (/), is a sale in Market 
 
 (ff) 2 Bla. Com. 449. 
 
 [b) See per Abbott, C. J., Djjer 
 V. Tearsoji, 3 B. & C. 42. 
 
 (c) Cundy v. Lindsay, L. R., 3 
 App. Cas. 459; 47 L. J., Q. B. 
 481; 38 L. T., N. S. 573. 
 
 {d) Chitty on Coutr. 10th ed. 35G. 
 (e) Benj. on Sales, 2nd ed. 8. 
 (/) Ganhj v. Ledwidge, "10 Ir. R., 
 C, L. 33, Q. B. 
 
 {(/) See Com. Dig. Market; per 
 Jervis, C. J., Lee v. Bayes, 18 C. B. 
 601. 
 
 [h) Leev. Bayes, 18 C. B. COL 
 ((') Crane v. London Lock Co., 33 
 L. J., Q. B. 224. It will be ob- 
 served that the sale must be of 
 goods usually dealt in at the shop. 
 Thus a scrivener's shop is not a 
 market overt for plate. So Smith- 
 
FAIRS AND MARKETS OVERT. 57 
 
 overt, thougli the premises are described in evidence as a 
 warehouse, and are not sufficiently open to the street for 
 a person on the outside to see what passes within {i). 
 
 By the Markets and Fairs Clauses Act (10 & 11 Yict. Horse "an 
 c. 14), s. 13, every person, other than a licensed hawker, '^^^j'^^*^^' ??^^" 
 is prohibited from selling or exposing for sale within the vict. c. H. 
 prescribed limits, except in his own dwelling-place or shop, 
 an// articles in respect of which tolls are by the special act 
 authorized to be taken in the Market. 
 
 The object of the act was evidently to protect the interests 
 of the Market ; to restrain anyone from setting up within the 
 limits a rival market; and the substantial meaning of sect. 13 
 is, that whenever it appears that the seller sells in a shop 
 which is private and permanent he is to be within the 
 exception, but whenever a man does not sell in his private 
 shop, but sets up a private market of his own, the section 
 imposes a penalty ; and whether or not the place of sale is 
 the seller's own private dwelling-place or shop is a question 
 which must be decided upon a consideration of all the 
 elements of the case (y). The section includes Horses 
 under the word article, when sold by a licensed Auctioneer 
 by auction in the yard belonging to a dwelling-house not 
 his own, and within the prescribed limits {k). But where 
 a special act enlarged the exception to a sale in an// shop 
 attached to ai/// dwelling-house, and an Auctioneer sold 
 goods in his auction room, which was attached to a dwell- 
 ing-house, but not his own dwelling-house, it was held 
 that this came within the exception (/). A skittle-ground 
 covered with a roof and enclosed, but having a door open- 
 ing upon the street, let for two days, for the sale of goods 
 mentioned in a special act, is not the lessee's shop, and 
 therefore does not come within the exception (;;?). But 
 seciis, where a shed is built out in front of the seller's shop 
 on land belonging to himself (»). 
 
 Where an Auctioneer sold sheep, cattle and Horses at Fearon v. 
 a building called the "Agricultural Hall," of which he Mitchell 
 
 field was held not to be a market S. 1344; 30 L. J., M. C. 105; 8 
 
 overt for clothes, nor Cheapside for W. R. 693. 
 
 horses, nor Aldridg-e's for carriages; (/) Wiltshire \. TFiUctt, II C.B., 
 
 see Benj. on Sales, 2nd ed. 7. N. S. 240 ; 31 L. J., M. C. 8 ; 10 
 
 (i) Zi/ons V. De Fass, 11 A. & E. W. R. 445 ; 5 L. T., N. S. 355. 
 
 326. {ill) Hooper v. Kenshole, L. R., 2 
 
 [j) Pope V. Whalleu, 6 B. & S. Q. B. D. 127; 46 L. J., M. C. 160; 
 
 303; llJur.,N. S. 444; 34 L. J., 36 L. T., N. S. 111. 
 
 M. C. 76 ; 11 L. T., N. S. 769. («) AshicortliY. Hey worth, L. R., 
 
 [k) Llandaff and Canton Districts 4 Q. B. 316 ; 38 L. J., M. C. 91 ; 
 
 Market Co. v. Lyndon, 6 Jui-., N. 20 L. T., N. S. 439. 
 
58' FAIRS AND MARKETS OVERT, ETC. 
 
 was proprietor, and whicli was capable of holding one 
 hundred head of cattle, and which was moreover con- 
 tiguous to a yard capable of holding 1,400 sheep; it 
 was held that these premises were not the Auctioneer's 
 dwelling-place or shop, notwithstanding that his dwelling- 
 house was only separated from the hall by the yard (o). 
 And, " under that state of facts," said Cockburn, C. J., 
 " it is impossible to say that the sale took place in the 
 dwelling-place of the respondent ; for the place is entirely 
 separated from his dwelling-house ; and assuming (con- 
 trary to my opinion) that a distinction was intended by 
 the use of the phrase ' dwelling-place,' instead of ' dwell- 
 ing-house,' which occurs in some of the other statutes, 
 and that ' dwelling-place' may apply to somewhat larger 
 and more extensive premises than the term * dwelling- 
 house' would apply to ; yet I do not think that in any 
 sense of the term can those premises be said to be the 
 dwelling-place of the respondent, separated as they are 
 from the place in which he lives. Then, is it his shop ? 
 I am of opinion that it is not. It cannot, in any proper 
 sense of the term, be called a shop. I agree that there 
 may be cases in which the term ' shop,' in its popular sense, 
 would not be applicable to the premises in which things 
 were sold or exposed for sale, and yet, by a liberal and 
 rational construction of the act, the premises might be 
 considered as within the exception of •' shop.' Take, for 
 instance, the place of business of a Horsedealer who has 
 stables in which he keeps Horses for sale, either as his own 
 or on commission. Although tolls are payable for the sale 
 of Horses in the market, it would be, perhaps, too much 
 to say that the Horsedealer is not at liberty to sell 
 Horses on his own premises, as not being within the ex- 
 ception of ' shop ' in the statute. I think we might say 
 that, on fair construction, the Horsedealer's premises were 
 ' a shop' within that term as used in sect. 13, But each 
 case must depend on its particular circumstances. Alv 
 though, as I have said, the premises of a Horsedealer 
 might come within the exception, it is a very different 
 thing when we have to deal with an extensive area like 
 the present, which is, in fact, nearly as extensive as the 
 Market-place itself. It is true that the auction itself took 
 place in a building, but the sheep and other things, the 
 subject of the sale, were exposed for sale in this large 
 
 (o) Fearon v. Mitchell, L. E., 7 Q. B. 090 ; 41 L. J., M. C. 170 ; 
 27 L. T., N. S. 33. 
 
FATES AND MARKETS OVERT. 59 
 
 3'-ard and kept there. To say that this could be a ' shop ' 
 within the meaning of this section would be, as it appears 
 to me, quite unreasonable. I own my individual opinion 
 is rather strong against an Auctioneer's premises being a 
 ' shop ' at all within the meaning of the section, but it is 
 not necessary to determine that. Assuming that an Auc- 
 tioneer's premises might be a shop for the purpose of 
 selling, so as to come within the exception, it seems to me 
 impossible to say that these extensive premises, being in 
 the open air and capable of holding so many hundred 
 sheep, can in any sense of the term be brought within the 
 description of a shop" (;;). 
 
 A Horse which brings goods to Market to be sold is, as where a 
 well as the goods themselves, exempt from distress, for the Horse at a 
 sake of public utility (q) . W dSr?sf 
 
 The Contagious Diseases (Animals) Act, 1878 (41 & 42 ^^ , » 
 Yict. c. 74), s. 32, Ord. 442, renders the exposure for diseased 
 sale of diseased animals unlawful, but it does not render the animals in. 
 sending of diseased animals to a public Market an action- 
 able wrong, in the absence of any warranty of soundness 
 or of any evidence of fraud or misrepresentation (r). 
 
 HORSE STEALING. 
 
 By 24 & 25 Vict. c. 96, s. 10, it is enacted, that " who- Stat. 24 & 25 
 soever shall steal any Horse, Mare, Gelding, Colt or Filly, ^^^^^ *^* ^^• 
 or any bull, cow, ox, heifer or calf, or any ram, ewe, sheep 
 or lamb, shall be guilty of felony:" and by sect. 11, it is 
 enacted, that " whosoever shall wilfully kill any animal 
 with intent to steal the carcase, skin or any part of the 
 animal so killed, shall be guilty of felony (s). 
 
 In an indictment for Horse-stealing under 7 & 8 Geo. 4, Description in 
 c. 29, s. 25, the phraseology of which section has been ^^^^ ^^ ' 
 followed in this respect by 24 & 25 Yict. c. 96, s. 10, it 
 was held, that the animal, whether a Horse, Mare, Geld- 
 ing, Colt or Filly, might, be described as a " Horse," 
 although the statute specified the particular species and 
 gender (f) ; and the construction thus given to the former 
 
 (p) Fearon v. Mitchell, L. R., 7 Cas. 13 ; 48 L. J., C. P. 281 ; 40 
 
 Q. B. 294, 295; see also J/'ifo^t- v. L. T., N. S. 73; 27 W. R. 114. 
 
 Bavies, L. R., 1 Q. B. D. 59 ; 45 Decided under 32 & 33 Vict. c. 70, 
 
 L. J., M. C. 30 ; 33 L. T., N. S. s. 57, repealed. 
 
 502 ; 24 W. R. 343. (,s) Repealing- but substantially 
 
 {q) See Francis v. Wijait, 3 Burr. re-enacting- 7 & 8 Geo. 4, c. 29, s. 
 
 1502, and the authorities there 25. 
 
 cited. (t) Rex v. Aldrielge, 4 Cox, C. C. 
 
 (?•) Ward V. Ilobhs, L. R., 4 App. 14 3. 
 
60 
 
 FAIRS AND MARKETS OVERT, ETC. 
 
 When the 
 offence is 
 complete. 
 
 Property- 
 given up. 
 
 Delivery of a 
 Horse to a 
 strang-er. 
 
 statute would probably make it unnecessary to amend in 
 a like case an indictment under the present statute. Now, 
 upon any similar objection being taken, not covered as in 
 this case by an express decision, the indictment might be 
 amended under 14 & 15 Vict. c. 100, s. 1. 
 
 If a Horse in a close is taken with intent to steal him, 
 but the thief is caught before he get out of the close, the 
 offence is complete (?()• And where the prisoner went 
 into the stable of an inn, and pointing to a Mare said to 
 the ostler, "that is my Horse, saddle him," and the ostler 
 did so, and the prisoner tried to mount the Mare in the 
 inn yard, but failing to do so directed the ostler to lead 
 the Mare out of the yard for him to mount, and the ostler 
 led her out, but before the prisoner had time to mount her 
 a person who knew the Mare came up and the prisoner 
 was secm'cd ; it was held, that if the prisoner caused the 
 Mare to be led out of the stable intending to steal her, 
 that was a sufficient taking to constitute a felony (.r) . 
 
 If the owner of goods gives up the possession of his 
 goods, at the same time intending to part with the entire 
 property in them, it is no larceny, although he may be 
 defrauded in the bargain {//). 
 
 A person selling a Horse at a Fair should take care 
 how he delivers his Horse to a stranger without receiving 
 payment for him, because whatever false statements and 
 pretences the stranger may make use of, if the seller part 
 with him on a promise being made that he shall be paid 
 for him at a certain place, and the Horse is ridden oif 
 without his receiving the money, he cannot get him back 
 again, neither can he indict the stranger for tricking him, 
 but his only remedy is an action for the price, which it 
 might be useless to bring against so worthless a party. 
 Thus, where a man was indicted for obtaining a Filly by 
 false pretences, it appeared that the prisoner pretending to 
 be a gentleman's servant, that he lived at Brecon, and that 
 he had bought twenty Horses at Brecon Fair, got posses- 
 sion of a Filly there from a person who had her on sale, 
 saying that if the prosecutor would take a Horse he de- 
 livered to him to the Cross Keys he would meet him and 
 pay the money. The prisoner never made his appearance, 
 and the Horse left was good for nothing. It was held 
 that as the prosecutor parted with the Filly because the 
 
 {ii) 1 Hale, 508. 
 
 (.*■) Hex V. rUman, 2 C. & T. 423. 
 
 (y) Per Coleridge, J. 
 Sheppard, 9 C. & P. 123. 
 
 Beg. 
 
HORSE STEALING. 61 
 
 prisoner promised to pay him, and not on account of any 
 of the false pretences charged, the prisoner was entitled 
 to an acquittal (s). 
 
 Where W. let a Horse on hire to C, who fetched the 
 Horse every morning from W.'s stable and returned it 
 after the day's work was done, and the prisoner went to 
 C. one day just as the day's work was done and fraudu- 
 lently obtained the Horse by saying, falsely, " I have come 
 for W.'s Horse ; he has got a job on and wants it as quickly 
 as possible;" and the same evening the prisoner was found 
 three miles off with the Horse by a constable, to whom he 
 stated it was his father's Horse and that he was sent to 
 sell it. This was held as against W. to be a larceny, 
 though as against C. it would have been an obtaining 
 by false pretences (a) . 
 
 If instead of delivering a Horse on the completion of Delivery on 
 a bargain, the owner allows the party to ride him by way *^'^^^- 
 of trial, and he rides away in pursuance of an intention 
 to defraud, the property is unchanged, and the felony is 
 complete {b). 
 
 If the owner does not consent to the goods being taken. Goods taken 
 and the person when he bargains for them does not intend ^'it^^out con- 
 to pay for them, but means to get them into his possession, 
 and dispose of them for his own benefit without paying for 
 them, it is a larceny (c). 
 
 If a Horse be hired for the day by a person intending Appropria- 
 at the time of hiring to appropriate it, ancl it is accordingly *ip^ "^ ^ 
 taken away and sold, a felony is committed, because the "^*^ °^^^' 
 owner did not intend to relinquish his property in the 
 Horse, but only the temporary possession (d). But where 
 a Horse is hired for a particular purpose the selling him 
 after that purpose is accomplished will not constitute a 
 iiciv felonious taking (e). 
 
 If goods are. delivered to a person on hire, and he takes Larceny 
 them away animo furancJi, he is guilty of larceny, although without proof 
 no actual conversion of them by sale or otherwise is 
 proved. Thus, where A. hired a horse and gig with the 
 felonious intention of converting them to his own use, 
 and afterwards offered them for sale, but no sale took 
 
 {£) Rex V. Bale, 7 C. & P. 352 ; (c) Gilbert's case, 1 Mood. C. C. 
 
 R. V. llarveij, 1 Leach, 467. 186. 
 
 {(i) Ecff. Y. Kendall, 30 Ij.T.3i5; (d) Rex v. Fear, 1 Leach, 521; 
 
 12 Cox, C. C. 598, C. C. R. Rex v. Pafc/i, Ibid. 238 ; Rex; v. 
 
 (A) See Dickinson, Q. S. 220. Fratt, 1 Mood. C. C. 185. 
 
 (e) Rex V. Fa)i/cs, R. & R. 4tl. 
 
G2 
 
 FAIRS AND MARKETS OVERT, ETC. 
 
 Taking with 
 an intent to 
 use. 
 
 Possession six 
 months after 
 
 loss. 
 
 Kilhng or 
 
 maiming 
 
 Horses. 
 
 Other ani- 
 mals. 
 
 Pouring acid 
 into a Mare's 
 ear. 
 
 ' ' Maiming 
 and wound- 
 
 place ; it was lield nevertlieless that lie was guilty of 
 larceny (*/). 
 
 A taking with the bare intent to use goods, though 
 unlawfully, will be only a trespass if the Jury are satisfied 
 that such was the original intention. Thus, where two 
 persons took two Horses from a stable, rode them to a 
 place at a distance, and there left them, proceeding on 
 foot, and the Jury found that they took the Horses merely 
 to forward them on their journey, and not to make any 
 further use of them, this was held not to be a larceny {<j). 
 And if a person stealing other property, takes a Horse not 
 with the intent to steal it, but only to get off more con- 
 veniently with the other property which he has stolen, 
 such taking of the Horse is not a felony {h). 
 
 Where a man is found in possession of a thing after a 
 lapse of six or seven months from the time when it was 
 lost, and there is no other evidence against him but that 
 possession, he ought not to be called on to account for it. 
 Thus, where a Mare, which had been lost in December, 
 was not found in the prisoner's possession till the June or 
 July following, it was held that his possession was not 
 sufficiently recent to put him on his defence (/). 
 
 By 24 & 25 Yiet. c. D7, s. 40 (A-), the malicious kill- 
 ing, maiming or wounding of any cattle is felony. And 
 the word " cattle," which alone is mentioned in the act, 
 has been held under former acts to include Horses (/), as 
 well as oxen, &c., pigs {m) and asses {n). 
 
 By section 41 of the same statute, the malicious killing, 
 maiming or wounding of other animals is made punishable 
 by imprisonment or fine. 
 
 Where a person had poured nitrous acid into a Mare's 
 ear, and some had run into her eyes and blinded her, and 
 the injuries produced to the ear were ulcers not wounds, 
 though such ulcers would have tm-ned to wounds, a con- 
 viction for maiming was held right (o). 
 
 The distinction between maiming [p) and wounding [q) 
 
 (/) Ecg. V. Jaiison, 4 Cox, C. C. 
 82, overruling Eeg. v. lirooks, 8 C. 
 & P. 295. 
 
 iff) Rex V. PhilUps, 2 East, P. C. 
 c. 16, s. 98. 
 
 [h) Rexv. Crump, 1 C. & P. 658. 
 
 (;■) Per Maule, J., Set/, v. Cooper, 
 16 Jur. 750. 
 
 {k) Repealing but re-enacting 7 
 & 8 Geo. 4, c. 30, s. 16. 
 
 (0 Rex V. Tatei/, 2 W. Bla. 721. 
 
 {m) Rex V. Chappie, R. & P. 77. 
 
 («) Rex V. Whitneij, 1 Mood. C. 
 C. 3. 
 
 (o) Oweti's case, 1 Mood. C. C. 
 205. 
 
 {p) R. V. Jeans, 1 C. & K. 539. 
 
 {q) R. V. JIai/H-ood, Puss. & 
 Pyan, 16. 
 
HORSE STEALING. 63 
 
 appears to "be that the former implies permanent injury, 
 while the latter does not necessarily do so. 
 
 It is not necessary under this statute to prove that any Use of in- 
 instrument has been used; where the roots of a Horse's ^*'^^Jf^*^"f*v 
 tongue were lacerated, and the tongue was protruding from proved, 
 his mouth, and there was only evidence to show that the 
 injury had been done by the prisoner's hand, it was held 
 that an offence against the act had been committed {>•). 
 
 To support an indictment under these sections, it is un- Malice, 
 necessary to give evidence of Malice against any particular 
 person (s), yet an evil intent in the prisoner must appear. 
 Thus, in a case in which the prisoner, a groom, adminis- 
 tered sulphuric acid to his Horses, Parke, J., left it to 
 the Jury to say, whether he had done it with the intent 
 feloniously to kill them, or under the impression that it 
 would improve their appearance (there being some evidence 
 of a practice of that kind among grooms), and that in the 
 latter case they ought to acquit him {t). 
 
 Where, however, the act is cruel and wanton the law 
 will imply malice. Thus, where a man caused the death of 
 a Mare from internal injuries not intending by his act to 
 kill, maim, or wound her, and acting recklessly and not 
 caring whether she was injured or not, though without any 
 ill-will or spite, either towards the owner of the animal, 
 or the animal herself, and without any motive except the 
 gratification of his own depraved tastes, he was found 
 gudty of maliciously killing the Mare contrary to the 
 Statute {i(). 
 
 By 39 Yict. c. 13 (The Drugging of Animals Act, 1876), Drugging of 
 the practice of administering poisonous drugs to Horses and ^^"^ ^ ' 
 other animals by disqualified persons and without the 
 knowledge and consent of the o^vner of such animals is 
 made punishable by fine or imprisonment. The act does 
 not extend to the owner of the animal, nor anyone acting 
 under his authority, nor does it exempt a person from pun- 
 ishment under any other act, so that he be not punished 
 more than once for the same offence. 
 
 KECOVERY OF STOLEN HORSES. 
 
 Although as a general rule the purchaser of stolen goods Sale in Mar- 
 in Market overt acquires a title to them, this is not the case o"^ert. 
 
 (>•) a. V. HullocJc, 37 L. J., M. C. 91 ; 30 L. T., N". S. 405 ; 22 W. R. 
 
 47 ; L. R., 1 C. C. R. 115. 553 ; 12 Cox, C. C. 607. 
 
 (*) H. V. Tlvetj, 1 C. & K. 704. {() H. v. Mogg, 4 C. & P. 364. 
 
 See also Reg. v. Fcmbliton, L. R., («) i?. v. Welch, 45 L. J., M. C. 
 
 2C. C. R. 119; 43 L. J., M. C. 17. 
 
64 
 
 FAIRS AND MARKETS OVERT, ETC. 
 
 Statutory 
 regulations. 
 
 Kecovery 
 when sold 
 under these 
 regulations. 
 
 Owner must 
 prove the 
 Horse was 
 stolen. 
 
 Sale out of 
 market overt. 
 
 Recovery 
 when not sold 
 under these 
 regulations. 
 
 with regard to stolen Horses. For a purcliaser gains no 
 property in a Horse which has been stolen, unless he buys 
 it in a Fair or Market overt, according to the directions of 
 the statutes of Philip and Mary (.r), and Elizabeth (i/). 
 
 By the statutes of Philip and Mary, and Elizabeth, it 
 is enacted, that the Plorse which is for sale shall be openly 
 exposed in the time of such Fair or Market, for one whole 
 hour together, between ten in the morning and sunset, in 
 the public place used for such sales, and not in any pri- 
 vate yard or stable ; and afterwards brought by both the 
 vendor and vendee to the bookkeeper of such Fair or 
 Market ; that toll be paid if any be due, and if not, one 
 penny to the bookkeeper, who shall enter down the price, 
 colour and marks of the Horse, with the names, additions 
 and abode of the vendee and vendor, the latter being pro- 
 perly attested (z). 
 
 The sale of a Horse under these statutory regulations 
 does not take away the property of the owner, if within 
 six months after the Horse is stolen he puts in his claim 
 before some Magistrate where the Horse shall be found, 
 and within forty days more proves it to be his property by 
 the oath of two witnesses, and tenders to the person in pos- 
 session such price as he bond fide paid for him in Market 
 overt (r/). 
 
 Unless, however, it is proved that the Horse was stolen a 
 Magistrate has no authority to restore it ; and, therefore, 
 where a complaint was made to a Magistrate by A. the 
 owner, that his Horse had been stolen by B., without actual 
 proof of its having been stolen, it was held that an officer, 
 although armed with a warrant against B., was not justified 
 imder the 31 Eliz. c. 12, s. 4, in taking the Horse out of 
 the possession of the bond fide purchaser from B. (b). 
 
 Where Horses or other stolen goods are sold out of 
 Market overt, the owner's property is not altered, and he 
 may take them wherever he finds them (c) . 
 
 We have seen that the sale of a stolen Horse, even in 
 Market overt, is void if certain statutory regulations have 
 not been observed, and in such case the owner does not 
 lose his property, but at any distance of time may seize 
 or bring an action for his Horse, wherever he happens to 
 find him {c). But, in a case (d) in which no evidence 
 
 (^) 2 & 3 Ph. & M. c. 7. 
 
 (V) 31 Eliz. 0. 12. 
 
 (z) 2 Ph. & M. c. 7, and 31 Eliz. 
 
 12. 
 
 {(f) 31 Eliz. c. 12, s. 4 ; Kel. 48. 
 
 {b) Joseph V. Adkins, 2 Stark. N. 
 P. C. 76. 
 
 [c) 2 Bla. Com. 449. 
 
 [d] North V. Jackson, 2 F. & F. 
 198. 
 
RECOVERY OF STOLEN HORSES. 65 
 
 was given of a compliance with the statutory regulations, 
 a bo)id fide purchaser of a horse from a person who had 
 bought it (as the second pm-chaser knew) at a fair, with- 
 out any evidence that he knew that it was obtained dis- 
 honestly, although it had been purchased on credit, and 
 not paid for, was held entitled to maintain trover against 
 the original owner for retaking it. 
 
 The onus of showing that the formalities required by Proof of com- 
 the statute have been observed lies on the buyer. In pliance with 
 Moran v. Pitt {e) the defendant's Mare, which he had 
 turned out in a public park, was found out of the park 
 and was sold at public auction by the " pinner" ; and after 
 an intermediate sale she was sold in Market overt by the 
 plaintiff and subsequently taken possession of by the 
 defendant. No proof was given that the formalities re- 
 quii'ed by the statute had been complied with ; and the 
 Com-t of Queen's Bench, in the absence of such proof, 
 declined to infer that such formalities had been observed, 
 and held that the plaintiff could not maintain an action 
 for the Mare against the defendant, the true owner. 
 
 It has been held, that where a party has good reason to Rule that 
 believe that his Horse has been stolen, he cannot maintain owner must 
 Trover against the person who bought it of the supposed your to brino- 
 thief, unless he has done everything in his power to bring the thief to 
 the thief to justice {/). But where the owner of the stolen J^^stice. 
 property had prosecuted the felon to conviction, and before 
 that time had given notice of the felony to the defendant, 
 who had purchased bond fide, but not in Market overt, and 
 the defendant after such notice had sold the property in 
 Market overt, it was held that the owner might recover 
 from the defendant the value of his property in Trover (g). 
 
 Though the decisions themselves in the cases of Gimson To be taken 
 V. Wood fall and Peer v. Hmnphrey have not been ex- ^ithmodifi- 
 
 CtltlOUS 
 
 pressly overruled, yet the general rule upon which they 
 rest can now only be taken with some modifications. It 
 is a true principle, that where a criminal and consequently 
 an injurious act towards the public has been committed, 
 which is also a civil injury to a party, that party shall not 
 be permitted to seek redress for the civil injury to the 
 prejudice of public justice, and to waive the felony (Ji). 
 
 [e) 42 L. J., Q. B. 47; 28 L. T., [h) Although this is the rule, it 
 
 N. S. 554 ; 21 W. R. 554. becomes a different question when 
 
 (/) Gimson v. Woodfall, 2 C. & we have to consider how it is to 
 
 P. 41. be enforced; per Cockbum, C. J., 
 
 [g) Peer v. Humphrey, 2 A. & E. Wells v. Ahrcihams, L. R., 7 Q. B. 
 
 495. 557; 41 L. J., Q. B. 306. 
 
 O. F 
 
66 
 
 FAIRS AND MAllKETS OVERT, ETC. 
 
 Wliere the 
 action is 
 against a 
 third party. 
 
 Evidence of 
 conversion. 
 
 Order for 
 restitution. 
 
 Or action of 
 trover. 
 
 But tills rule of public policy applies only to proceedings 
 between the plaintiff and the felon himself, or at the most 
 the felon and those with whom he must be sued (A), and 
 therefore it is not applicable where the action is against a 
 third party, who is innocent of the felony. 
 
 Thus, it was held that an action of Trover was main- 
 tainable to recover the value of goods which had been 
 stolen from the plaintiff and which the defendant had 
 innocently purchased, although no steps had been taken to 
 bring the thief to justice (//). Thus, too, in a case where 
 A. had bond fide purchased a stolen Horse at a public 
 auction (not being a Market overt), and had sent it for 
 sale to a Repository for Horses kept by B., and there it 
 was found by the owner, who demanded it of B. in the 
 presence of A., and B. refused to give it up without the 
 authority of A. ; it was held in an action of Trover against 
 A. and B., that in this case it was not necessary in the 
 first instance to prosecute the felon, and that there was 
 sufficient evidence of a joint conversion ; inasmuch as, 
 though a servant or agent, who has received goods from 
 his master or principal, may, on a demand made by the 
 true owner of the goods, give a qualified refusal to deliver 
 them up, without being liable to an action of Trover ; yet 
 when a bailee sets up or relies upon the title of his bailor, 
 in answer to such demand, his refusal is evidence of a 
 conversion by him {I). 
 
 If goods be stolen from any common person, and he 
 prosecutes the offender to conviction, he will be entitled 
 under 24 & 25 Yict. c. 96, s. 100 (A:), to an order of 
 restitution from the Court before whom the trial took 
 place, and this notwithstanding any intervening sale in 
 Market overt (/). 
 
 Or the goods may be recovered in Trover from the 
 purchaser of them in Market overt, upon a conversion by 
 him subsequent to the conviction of the felon, without any 
 order for restitution having been made. For the effect of 
 24 & 25 Yict. c. 96, s. 100 {!:), is to revest the property in 
 stolen goods in the original owner upon conviction of the 
 felon im). 
 
 {h) White V. Spettlgue, 13 M. & 
 W. 606 ; Stone v. Marsh, 6 B. &C. 
 551 ; Harsh v. Keating, 1 Bing. N. 
 C. 198 ; per Crowder, J., Lee v. 
 Bayes, 18 C. B. 602 ; and see Oshorn 
 V. Gillett, L. E., 8Ex. 88; 44 L. J., 
 Ex. 53. 
 
 [i) Lee V. Bayes, 18 0. B. 599. 
 
 [k) Taken from 7 & 8 Geo. 4, 
 c. 29, s. 57. 
 
 {1) 2 Steph. Com. 64. 
 
 [m] Scattert/ood v. Sylvester, 19 
 L. J., Q. B. 447. 
 
RECOVERY OF STOLEN HORSES. 67 
 
 This enactment applies to cases of false pretences as 
 well as felony, and the fact that the prisoner parted with 
 the goods to a bond fide pawnee will not disentitle the 
 original owner to the restitution of the goods {n). It also 
 applies to property received by a person knowing it to 
 have been stolen or obtained by false pretences. The 
 order of restitution is strictly limited to property identified 
 at the trial as being the subject of the charge ; it does 
 not, therefore, extend to property in the possession of 
 innocent third persons, which was not produced and 
 identified at the trial as being the subject of the indict- 
 ment (o). 
 
 Where stolen cattle were sold in Market overt at about 
 10 o'clock in the morning, and later on in the day resold 
 likewise in Market overt, both purchases being bond fide, 
 it was held, that, upon the conviction of the thief, the 
 judge had jurisdiction at the trial to order restitution to 
 the rightful owner [p). 
 
 And by the 30 & 31 Yict. c. 35, s. 9, provision is made 
 upon conviction of the thief, and restitution of the goods, 
 for the payment to an innocent purchaser from the thief, 
 out of any moneys taken from the thief on his apprehension, 
 of the price such purchaser has paid for the stolen goods. 
 
 Under 2 & 3 Vict. c. 71, the Metropolitan Police Ma- Order of 
 gistrates have power to order that any goods stolen or ^.^lH^ Magis- 
 f raudulently obtained be delivered up to the owner {q) . 
 
 And if the order is immediately complied with, no Where no 
 special damages can be awarded for the detention. Thus, ^^^^^l. 
 in the following case, A. hired a Horse and gig of B., be awarded, 
 and the same day pledged it with C, an innocent party, 
 for value. After some inquiries made, B. demanded the 
 restitution of them from C, who offered to restore them on 
 being satisfied of B.'s right to recover. A Magistrate's 
 order was then obtained by B., under 2 & 3 Yict. c. 71, 
 s. 40, compelling C. to deliver the goods to B., which 
 order was immediately complied with by C. A. was, 
 subsequently to this order, tried and convicted on the 
 evidence of B. and C of stealing the Horse and gig, and 
 after such conviction B. entered a plaint in the Sheriff's 
 Court against C. for special damage arising from the de- 
 
 («) Eeg.y.Stancliffe,llGoi!.,G.G. [i)) Reg. v. Uomn, G Ir. R., 0. 
 
 318. L. 293. C. C. E. 
 
 (o) Beg. V. Goldsmith, 12 Cox, C. (?) See 2 & 3 Vict. c. 71, ss. 27, 
 
 C. 594 ; Reg. v. Smith, 12 Cox, C. C. 40. 
 
 697. 
 
 f2 
 
'68 FAIRS AND MARKETS OVERT, ETC. 
 
 tention of the goods prior to sucli restitution. It was held 
 by Mr. Russell Guruey that there was no evidence of a 
 conversion by C. so as to enable B. to recover in this 
 action (r) . 
 Eepicvin for An action of Replevin may be maintained for any un- 
 
 imlawful lawful taking of goods, as upon a mistaken charge of 
 aang. felony, and is not confined to the case of goods distrained. 
 
 Thus, where there was a dispute between the defendant 
 L. and the plaintiff as to the ownership of a Horse, one 
 H., having obtained possession of it at the plaintiff's re- 
 quest, was charged by L. with stealing it. The defendant 
 C. was a policeman of the borough of Liverpool, appointed 
 imder 5 & (3 Will. 4, c. 7G, s. 76 ; and the charge having 
 been made to him, he apprehended H. and took jDOSsession 
 of the Horse. The charge of felony was afterwards dis- 
 missed by the police magistrate, but the defendant C, was 
 ordered to give up the Horse to the defendant L. The 
 plaintiff brought an action of Replevin against the defen- 
 dants C. and L. for taking and detaining his, the plaintiff's, 
 Horse, and it was held that, though unusual in such a 
 case, the action was maintainable («). 
 ■Wrongful It was held by Wightman, J., in the case of R. v. 
 
 sale by Agent Jjai{/Ii [f), that a person, who was employed to take a 
 entrusted to Horse to a particular place, and sold it on the way, was 
 liim. rightly indicted under the 2nd section of the Fraudulent 
 
 Trustees Act of 1S57 (20 & 21 Vict. c. 54), which section, 
 though repealed together with the rest of the act by 24 & 
 25 Vict. c. 95, has been re-enacted and extended by 24 & 
 25 Vict. c. 96, s. 76. 
 
 (>•) Dossett V. Riimill and Gower, [t) Livei-pool Winter Assize, 
 
 19 L. T. 339. (Sheriff's Court.) Dec. 1, 1857. 
 
 (s) Mellor\. Leather, 17 Jur. 709. 
 
( 69 ) 
 
 CHAPTER IV. 
 
 WHAT DISEASES OR BAD HABITS CONSTITUTE UNSOUNDNESS 
 OR VICE. 
 
 Unsoundness and Vice. 
 
 Present State of the Law 70 
 
 Definition of Soundness 71 
 
 A Sound Horse id. 
 
 Mule as to Ihisoundness id. 
 
 The Term ^^ Natural usefulness" . 72 
 Important Decision as to Un- 
 soundness id. 
 
 Temporary Diseases 73 
 
 Acute Diseases 74 
 
 Rule as to Vice id. 
 
 How Unsoundness or Vice should 
 
 be left to a Jury id. 
 
 Diseases, Defects, oe Axteea- 
 
 TIONS in StEUCTUEE, AND BaD 
 
 Habits. 
 
 Backing and Gibbing 75 
 
 Biting id. 
 
 Blindness id. 
 
 Cataract id. 
 
 Remittent Ltflammation 76 
 
 Opacity of the Lens held to be 
 an Unsoundness id. 
 
 Blood and Bog-Spavin 77 
 
 Bone-Spavin id- 
 Held to be an Unsoundness . . , . id. 
 
 Broken-backed 78 
 
 Broken-doicn id. 
 
 Broken-knees id. 
 
 Broken-ivind id. 
 
 Bronchitis 79 
 
 Canker : id. 
 
 Capped Hocks id. 
 
 Cataract id. 
 
 Chestfounder id. 
 
 Chinked in the Chine 80 
 
 Clicking id. 
 
 Cloudiness id. 
 
 Contraction id. 
 
 When held to be an Unsound- 
 ness 81 
 
 Corns id. 
 
 Cough 82 
 
 Held to be an Unsoundness 
 
 ichcH tcmiwrary id. 
 
 Confirmed by a later Decision . . 83 
 
 Crib-biting 84 
 
 When not an Unsoundness .... id. 
 
 Held to be a Vice 85 
 
 Curb id. 
 
 Curby Hocks not an Unsound- 
 ness 86 
 
 Cutting 87 
 
 Held not to be an Unsoundness . id. 
 
 Dropsy of the Skin id. 
 
 Dropsy of the Heart id. 
 
 Enlarged Glands 88 
 
 Enlarged Hock id. 
 
 Ewe Keck id. 
 
 False Quarter id. 
 
 Farcy id. 
 
 Water Farcy 89 
 
 Founder id. 
 
 Gibbing id. 
 
 Glanders id. 
 
 Infectious to Ifankind id. 
 
 The Contagious Diseases {Ani- 
 mals) Act 90 
 
 Glaucoma id. 
 
 Grease id. 
 
 Grogginess id. 
 
 Grunting 91 
 
 Gutta Serena id. 
 
 Hereditary Disease id. 
 
 Kicking 92 
 
 Kidney -dropping id. 
 
 Lameness id. 
 
 Temporary Lameness an Un- 
 soundness id. 
 
 Laminitis 93 
 
 Lampas 94 
 
 Liver Disease id. 
 
 Lungs hcpatizcd id. 
 
 Mailcnders and Sallenders id. 
 
 Mange id. 
 
 Navicular Joint Disease id. 
 
 Nerved Horse id. 
 
 Held to be Unsound 95 
 
 Nose, Chronic Discharge id. 
 
 Not lying doivn 96 
 
 Opacity of the Lens id. 
 
 Ossification of the Cartilages id. 
 
 Overreach id. 
 
70 
 
 "WHAT DISEASES CONSTITUTE INSOUNDNESS OR VICE. 
 
 Tnrotkl Gland ulcerated 97 
 
 Foil-evil id. 
 
 Fumiced Feet id. 
 
 Quidding id. 
 
 Quittor id. 
 
 Fat-tails 98 
 
 Fearing id. 
 
 Fhenmatism id. 
 
 Fing-hone id. 
 
 Foaring 99 
 
 Fecisions on the Subject id. 
 
 Foiling 100 
 
 Funning aicag id. 
 
 Saddle-galls id. 
 
 Fimple on a Horse's Skin .... 101 
 Question for the Jury id. 
 
 Sallenders id. 
 
 Sandcrack id. 
 
 Scab 102 
 
 Statute of Hen. 8 id. 
 
 Shivering id. 
 
 Shying id. 
 
 Shying a result of short-sighted- 
 ness id. 
 
 Sidebones 103 
 
 Slipping the Collar id. 
 
 Spavin id. 
 
 Speedy-cut id. 
 
 Splint id. 
 
 Decision on the Subject 104 
 
 Sprai)! and Thickening of the Back 
 
 Sinews 104 
 
 Star-gazer , . 105 
 
 Ewe-necked id. 
 
 Strangles id. 
 
 Stringhalt id. 
 
 Held to be cm Unsoundness .... id. 
 Thickening of the Back Sinews. . 107 
 
 Thick-wind id. 
 
 Thinness of Sole id. 
 
 Held not an JJnsoiindness .... id. 
 
 Thoroughpin 108 
 
 Thrush id. 
 
 Tripping id. 
 
 Vicious to clean 109 
 
 Vicious to shoe id. 
 
 Wall-eyed id. 
 
 Warbles id. 
 
 Warts id. 
 
 Water-farcy id. 
 
 Weak-foot id. 
 
 Weaving 110 
 
 Wheezing id. 
 
 Whistling id. 
 
 Wilremhaunch id. 
 
 Wind-galls id. 
 
 Wind-sucking Ill 
 
 Wolf's-tooth id. 
 
 Yellou-s id. 
 
 UNSOUNDNESS AND VICE. 
 
 Present state In buying and selling Horses, it is of tlie utmost import- 
 of the law. ancB to ascertain what constitutes Unsoundness, and what 
 habits are to be considered Vices. Until comparatively 
 lately there had been much perplexity on these j)oints ; no 
 correct rule as to unsoundness had been laid down, and 
 a difference of opinion existed among the Judges whether 
 or not a temporary disease was, during its existence, a 
 breach of a warranty of soundness. The law on these 
 subjects has been in a great measure settled by the 
 Judges of the Court of Exchequer, where Mr. Baron Parke 
 laid down a rule with regard to JJtisov.ndness, by which, 
 so far as the nature o*f the subject mil admit, all future 
 cases will be governed, it being the result of the deliberate 
 consideration of the Court (a). The same learned judge 
 
 {a) Kiddell v. Barnard, 9 M. & 
 W. 670 ; Coates v. Stephens, 2 M. & 
 Rob. 157. These cases have been 
 followed in America in Kornegay v. 
 
 White, 10 Ala. 255; Fobcrts v. Jen- 
 kins, 1 Foster (N. H.) 116; Thomp- 
 son V. Berfrand, 23 Ark. 730. 
 
UNSOUNDNESS AND VICE. 71 
 
 also in anotlier case expressed an opinion as to what 
 constitutes a Vice {b), and keeping this in view a correct 
 estimate may be formed of what will be considered a 
 breach of a warranty of " freedom from Yice." 
 
 It is a difficult matter without the use of negatives to Definition of 
 explain, fully and briefly, the meaning of the word Soundness. 
 *' Sound," as applied to Horses. Chief Justice Best, in 
 the case of Best v. Osborne {c) held that " sound " meant 
 perfect. In Kiddell v. Buvnard {d), Mr. Baron Parke 
 said, " The word ' sound ' means what it expresses, 
 namely, that the animal is sound and free from disease 
 at the time he is warranted." And in the same case Mr. 
 Baron Alderson said, " The word 'sound' means sound; 
 and the only qualification of which it is susceptible arises 
 from the purpose for which the warranty is given." 
 
 We may define a Horse to be " Sound " w/ien he is A Sound 
 free from liereditary disease, is in the possession of his natural Horse. 
 and constitutional health, and has as much bodily perfection 
 as is consistent tcith his natural formation. 
 
 The rule as to Unsoundness is, that if, at the time of Rule as to 
 sale, the Horse has any disease, which either actually Unsoundness, 
 does diminish the natural usefulness of the animal, so as 
 to make him less capable of work of any description ; or 
 which, in its ordinary progress, will diminish the natural 
 usefulness of the animal : or if the Horse has, either from 
 disease (whether such disease be congenital or arises sub- 
 sequently to its birth {e) ), or from accident, undergone 
 any alteration of structure, that either actually does at 
 the time or in its ordinary effects will diminish the natural 
 usefulness of the Horse, such a Horse is Unsound {f). 
 This very much resembles the definition of Unsoundness 
 given in an excellent work, on the Construction of the 
 Horse and the Treatment of his Diseases, by the late Mr. 
 Youatt, published by the Society for the Diffusion of 
 Useful Knowledge, and which will be used as an autho- 
 rity in the description of those diseases and bad habits to 
 which the Horse is subject. But in that work Unsou)icl- 
 ness is referred to disease only ; namely, to that alteration 
 of structure which is connected wit*h or will produce disease, 
 and lessen the usefulness of the animal ; and any alteration 
 
 (i) ScJioIeJeldy. Bobb, 2M. &Eob. {e) nolijday v. Sforgan, 28 L. J., 
 
 210. Q. B. 9 ; see post. 
 
 (c) BestY. Osborne, R. & M. 290. (/) Per Parke, B., Kiddell v. 
 
 (flf) Kiddell V. Burnard, 9 M. & Burnard, 9 M. & W. 670; Coates v. 
 W. 670. Stephens, 2 M. & Rob. 137; Smart 
 
 V. Allison, Appendix. 
 
72 
 
 WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE. 
 
 The term 
 " Natural 
 usefulness." 
 
 Important 
 decision as to 
 XJnsoixndness. 
 
 of structure from accident is not compreliended within the 
 definition there given. This, however, is an important 
 omission, because when the Court of Exchequer laid down 
 the rule as to unsoundness, Mr. Baron Alderson on this 
 point said, " It is, however, right to make to the definition 
 of Unsoundness the addition my brother Parke has made, 
 namely, that the disqualification for work may arise either 
 from disease or accident" {g). 
 
 The term " Natural usefuhwss" must be borne in mind. 
 One Horse may possess great speed, but is soon knocked 
 up ; another will work all day, but cannot be got beyond 
 a snail's pace ; one with a heavy forehead is liable to 
 stumble, and is continually putting to hazard the neck of 
 his rider ; another with an ii^itable constitution and a 
 washy make, loses his appetite, and begins to scour if a 
 little extra work is exacted from him. The term Unsound- 
 ness cannot be applied to any of these ; it would be 
 opening far too widely a door to disputation and endless 
 wrangling. The buyer can discern, or ought to know, 
 whether the form of the Horse is that which will render 
 him likely to suit his purpose, and he should try him 
 sufficiently to ascertain his natural strength, endurance 
 and manner of going (//). 
 
 The following is a most important case on Unsoundness 
 in animals : — An action of Assumpsit was brought on the 
 warranty of three bullocks, and under the direction of 
 Mr. Justice Erskine at the trial, a verdict was found for 
 the plaintiff. In refusing a rule for a new trial, Mr. 
 Baron Parke said, " The rule I laid down in Coates v. 
 Stejdiens (/) is correctly reported, that is the rule I have 
 always adopted and acted on in cases of Unsoundness : 
 although, in so doing, I differ from the contrary doctrine 
 laid down by my brother Coleridge in Bolden v. Brog- 
 den{j):— 
 
 " I think the word ' sound ' means what it expresses, 
 namely, that the animal is sound and free from disease at 
 the time he is warranted sound. If, indeed, the disease 
 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 sligJtt pimple on his skin, it 
 would not amount to an Unsoundness ; but even if such 
 
 {ff) Kiddell v. Barnard, 9 M. & 
 W. 671. 
 
 (A) Lib. U. K. "The Horse," 
 361. 
 
 (;) Coates V. Stephens, 2 M. & Rob. 
 137; and see " Kule as to Unsound- 
 ness," ante, p. 71. 
 
 {j) Bolden v. Brogden, 2 M. & 
 Rob. 113. 
 
UNSOUNDNESS AND VICE. 73 
 
 a thing as a pimple were on some part of tlie body wliere 
 it might have that effect, as, for instance, on a part which 
 would prevent the putting a saddle or bridle on the animal, 
 it would be different." 
 
 " An argument has, however, been adduced from the 
 shghtness of the disease and the facility of cure ; but if 
 we once let in considerations of that kind, where are we 
 to draw the line ? A Horse may have a cold which may 
 be cured in a day ; or a fever, which may be cured in a 
 week or a month ; and it would be difficult to say where 
 to stop. Of course, if the disease be slight, the Unsound- 
 ness is proportion ably so, and so also ought to be the 
 damages : and if they were very inconsiderable, the Judge 
 might still certify under the statute of Elizabeth (A-), to 
 deprive the plaintiff of costs." 
 
 " But on the question of law, I think the direction of 
 the Judge in this case was perfectly correct, and that this 
 verdict ought not to be disturbed. Were this matter pre- 
 sented to us now for the first time, we might deem it 
 proper to grant a rule, but the matter has been, we think, 
 settled by previous cases : and the opinion which we now 
 express is the result of deliberate consideration." 
 
 And Mr. Baron Alderson said, " I am of the same 
 opinion. The word ' sound ' means sound, and the only 
 qualification of which it is susceptible arises from the 
 purpose for which the warranty is given. If, for instance, 
 a Horse is purchased to be used in a given way, the word 
 * sound ' means that the animal is useful for that purpose ; 
 and ' unsound ' means that he, at the time, is affected with 
 something which will have the effect of impeding that use. 
 If the disease be one easily cured, that will only go in 
 mitigation of damages. It is, however, right to make to 
 the definition of Unsoundness the addition my brother 
 Parke has made, namely, that the disqualification for 
 work may arise either from disease or aeeident ; and the 
 doctrine laid down by him on this subject, both to-day 
 and in the case of Coates v. Stephens (/), is not new law; 
 it is to be found recognized by Lord Ellenborough and 
 other Judges in a series of cases " {ni). 
 
 The rule as to Unsoundness applies to cases of disease Temporary 
 and accident, which from their nature are only tempo- "^^^^^ses. 
 rary, it not being necessary that the disorder should be 
 
 {k) 43 Eliz. c. G, s. 2. {m) Eiddell v. Burmrd, 9 M. & 
 
 \l) Coates V. Stephens, 1 M. & Rob. W. 670. 
 137. 
 
74 
 
 WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE. 
 
 Acute dis- 
 eases. 
 
 Rule as to 
 Vice. 
 
 How Un- 
 soundness or 
 Vice should 
 he left to a 
 Jury. 
 
 permanent or incurable. And this is laid down as law by 
 Lord Ellenboroiigh in Elton v. Brogden {n) , and Elton 
 V. Jordan (o) ; also by Mr. Baron Parke in Coates v. 
 Stephens (p), and by the Court of Exchequer in Kiddell 
 V. Barnard {q), although Mr. Justice Coleridge in Bolden 
 V. Brofjden (r) was of a different opinion. 
 
 It will be unnecessary to take into consideration acute 
 diseases, such as fevers, inflammation, &c., because all 
 Horses are without dispute unsound, during the time they 
 are affected by them. 
 
 A Viee is a bad habit, and a bad habit to constitute a 
 vice must either be shown in the temper of the Horse, 
 so as to make him dangerous, or diminish his natui-al 
 usefulness ; or it must be a habit decidedly injurious to 
 his health is). 
 
 The Soundness or Unsoundness of a Horse is a question 
 peculiarly fit for the consideration of a Jury, and the 
 Court will not set aside a verdict, on account of there 
 being a preponderance of evidence the other way {t) ; 
 and they should consider whether the effect said to proceed 
 from the alleged Unsoundness, is such an effect as in the 
 eye of the law renders a Horse unsound. It is also a 
 question for them, whether a Horse warranted sound was 
 at the time of delivery rendered unfit for immediate use to 
 an ordinary person, on account of some disease {u). 
 
 And in case of Vice they should consider, whether the 
 effect alleged to proceed from a certain habit, is such an 
 effect as the law holds to be a Vice in a Horse. 
 
 DISEASES, DEFECTS OR ALTERATIONS IN STRUCTURE, AND 
 BAD HABITS. 
 
 We shall now consider, in alphabetical order, as the 
 most convenient method, the various diseases, defects or 
 alterations in structure, and bad habits, to which the 
 Horse is liable ; and with the assistance of decided cases, 
 and guided by the rules which have been laid down by 
 
 (ii) Elton V. Brogden, 4 Camp. 
 281. 
 
 (o) Elton V. Jordan, 1 Stark. N. 
 P. C. 127. 
 
 [p) Coates V. Stephens, 2 M. & 
 Rob. 137. 
 
 (q) KiddcU V. Bimiard, 9 M. & 
 W. 670. 
 
 (»•) Bolden v. Brogden, 2 M. & 
 Rob. 113. 
 
 {s) ScJwleJield V. Robh, 2 M. & 
 Rob. 210 ; and see Crib-biting-, 
 post. 
 
 (0 Leu-is V. Pcalce, 7 Taunt. 153; 
 S. V. 2 Marsh. 43 ; per Patteson, 
 J., Baijlis V. Lawrence, 11 Ad. & E. 
 926. 
 
 («) See Saddle-galls, post ; and 
 Alnsley v. Brown, there cited. 
 
DISEASES, DEFECTS, ETC. 75 
 
 tlie Courts, an attempt will be made to fix in eacli in- 
 stance, which of these does, or does not, amount to an 
 Unsoundness or a Vice. Such conclusions, however, unless 
 founded on decided cases, are merely stated as opinions 
 formed by the application of the rules already mentioned ; 
 and from the difficulty there often is in ascertaining where 
 Soundness ends and Unsoundness begins, people, in doubt- 
 ful cases, must necessarily be guided in a great measure 
 by circumstances. 
 
 Backing and Gibbing are closely allied, and are generally Backinj^ and 
 the result of bad breaking, at the time when the Horse is Cribbing, 
 first put to the collar and refuses to start. When the 
 habit becomes confirmed, the Horse swerves, gibs and 
 backs, as soon as he thinks he has had enough work, or 
 has been improperly checked or corrected, or when he 
 begins to feel the pressure of the collar painful. It is 
 impossible permanently to cure a Horse of this bad habit 
 when it has become fixed {v) ; and as it is both dangerous 
 and diminishes a Horse's natural usefulness, it is a breach 
 of a warranty of freedom from Vice. In an American 
 case, where these vices were proved to have appeared in a 
 Horse on trial, three or four days after purchase, this was 
 held to be evidence that they existed at the time of pur- 
 chase {lo). 
 
 Biting when dangerous is a Vice. Biting, 
 
 The Crystalline Lens is generally the seat of disease in Blindness, 
 the eye of a Horse ; it is so called from its resemblance to 
 a piece of crystal or transparent glass, and on it all the 
 important uses of the eye mainly depend. It is of a thick 
 jelly-like consistence, convex on each side, but there is more 
 convexity on the inner than on the outer side. It is in- 
 closed in a delicate transparent bag or capsule, and is placed 
 between the aqueous and the vitreous humours, and received 
 within a hollow in the latter, with which it exactly corre- 
 sponds. It has, from its density and its double convexity, 
 the chief concern in conveying the rays of light which pass 
 into the pupil. The Lens is very apt to be affected from 
 long or violent inflammation of the conjunctiva, and either 
 its capsule becomes cloudij, and imperfectly transmits the 
 light, or the substance of the Lens becomes opaque (x). 
 
 The confirmed Cataract, or the Opaque Lens of long Cataract. 
 standing, will exhibit a pearly appearance, which cannot 
 
 (f) Lib. XJ. K. "The Horse," {w) FiJiIei/ y. Quirk, ^ 'Minn. IM. 
 
 334. [x) Lib. tr. K. "The Horse," 94. 
 
4 O WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE. 
 
 be mistaken, and will frequently be attended with a change 
 of form, a portion of the Le)is being forced forward into 
 the pupil. Although the disease may not have proceeded 
 so far as this, yet if there be the slightest cloudiness of the 
 Le)is either generally, or in the form of a minute spot in 
 the centre, and with or without lines radiating from that 
 spot, the Horse is to be condemned ; for in ninety-nine 
 cases out of a hundred the disease will proceed, and Cataract, 
 or complete Opacity of the Lens and absolute Blindness will 
 be the result ix). Cataract is an Unsoundness {>/). 
 Remittent In- That Injf animation of the eye of the Horse, which usually 
 flaimiiatiuu. terminates in Blindness of one or both eyes, has the pecu- 
 liar character of remitting or disappearing for a time, once 
 or twice, or thrice, before it fully runs its course. The eye, 
 after an attack of inflammation, regains so nearly its former 
 natural brilliancy, that a man well acquainted with Horses 
 will not always recognize the traces of former disease. 
 After a time, however, the inflammation retiu-ns, and the 
 result is unavoidable (;:). 
 Opacity of the Blindness is undoubtedly an Unsoundness; but to con- 
 Lens held to stitute a breach of warranty in cases of Cloudiness of the 
 Eye or Opacity of the Lens, after the sale, there must 
 either be proof of an attack of inflammation before sale, 
 or Veterinary Surgeons must be produced who will dis- 
 tinctly state that, from the appearance of the eye, there 
 must have been inflammation before the time of sale. The 
 following case is in point : — ■ 
 
 A Horse was bought by the plaintiff in April, war- 
 ranted sound and quiet. He was sent on the 18th of 
 June to be examined by an eminent Veterinary Surgeon, 
 who detected an " Opacify of the crystalline Lens" in the 
 near eye, and pronounced it his decided opinion that the 
 defect must have been of long standing, and that in fact 
 it was chronic ; to produce which state, it must have re- 
 quired a great many successive attacks of inflammation. 
 It might have been produced in six months, and it was a 
 sort of thing which few dealers would have been likely 
 to find out. Another Veterinary Surgeon had examined 
 the Horse, and did not see the defect, but could not swear 
 that it did not then exist. On this evidence a verdict was 
 found for the plaintiff {a). 
 
 (.r) Lib. IT. K." The Horse," 94. („-) Lib. U. K. "The Horse," 
 
 \v) IDggs v. Thmlc, before Chief 363. 
 Baron Pollock, Guildhall, Feb. 18, ('/) Brings v. Balccr, before Chief 
 
 1850. Justice Tindal, Nov. 29, 1845. 
 
DISEASES, DEFECTS, ETC. 77 
 
 Attaclied to the extremities of most of the tendons, and Blood and 
 between the tendons and other parts, are little bags con- Bog-spavin, 
 taining a mucous substance to lubricate the tendons so as 
 to prevent friction. From violent exertion these little 
 bags are liable to enlargement, of which Wind-galls (/;) 
 and Thoroughpins (c) are instances. There is one of these 
 bags inside the bending of the hock ; this sometimes 
 becomes considerably increased in size, and the enlarge- 
 ment is called a Bog-spavin. When the vein, which passes 
 over this bag, is distended with accumulated blood, it is 
 called a Blood-spavin, and is therefore the consequence of 
 Bog-spavin, with which it is very often confounded (d) ; 
 they generally produce lameness, and constitute Un- 
 soundness. 
 
 Bone-spavin is an affection of the bones of the hock Bone-spavin, 
 joint. When an undue weight and concussion are thrown 
 on the inner splint bone, they cause an inflammation of 
 the cartilaginous substance, which unites it to the shank 
 bone ; the consequence of which is, that the cartilage is 
 absorbed and bone deposited, so that the union between 
 the splint-bone and shank becomes bong instead of carti- 
 laginous, and the degree of elastic action between them is 
 destroyed. A Splint in the form of a tumour appears 
 in the inside of the hind-leg, in front of the union of 
 the head of the splint-bone with the shank, and is called 
 a Bone-spavin. It almost invariably produces lameness, 
 and the enlargement rapidly spreads with quick and hard 
 work {c), so as to interfere with the flexion of the hock. 
 
 Bone-spavin, whether it produce lameness apparent at the Held to be an 
 time of sale or not, is an Unsoundness ; and the following unsoundness, 
 veterinary evidence was given in a case which was tried. 
 
 Mr. Nice, a Veterinary Surgeon, stated for the plaintiff, 
 that eleven days after sale he had seen the Horse, which 
 then had a confirmed Bone-spavin, and that in his opinion 
 it was not a curable disease. Mr. Sewell, of the Yeterinary 
 College, had examined him about a month after sale, and 
 said that at that time he had a confirmed Bone-spavin, 
 which could not have occurred subsequent to the time of 
 sale. 
 
 For the defendant, Mr. Child, a Veterinary Surgeon, 
 was called, who said that there was a bony deposit in the 
 interior of the hock, but that it did not interfere with its 
 
 {b) Wind-galls, post. 119. 
 
 (c) Thoroughpins, post. {e) Lib. U. K. "The Horse," 
 
 ('/) Lib. U. K. "The Horse," 270, 3G5. 
 
78 
 
 AVHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE. 
 
 Broken - 
 backed. 
 
 Broken- 
 down. 
 
 Broken- 
 kuees. 
 
 Broken-wind. 
 
 flexion. It was what is called a Bone-spavin, tliougli tlie 
 term was very indefinite ; that the deposit generally, but 
 not invariably, increases (/ ) ; and in the incipient stages it 
 requires skill, and is often difficult to determine ; that there 
 might be a deposit to a considerable extent without pro- 
 ducing lameness; that he had known Horses rejected for 
 Bone-spavin as unsound, which had not become lame, and 
 had one himself which was rejected three years ago, and 
 had not become so. Another witness, a Farrier, said, " I 
 do not think Bone-spavin is an Unsoundness myself, with- 
 out lameness ; but Bone-spavin is in our profession a known 
 Unsoundness, whether it produce lameness or not." The 
 plaintiff obtained a verdict {(j) . 
 
 Many old Horses, which have been put to hard service, 
 especially before they have gained their full strength, 
 have some of the bones of the back or loins anchylosed, 
 being united together by bony matter, instead of liga- 
 ment. When this exists to any considerable extent, the 
 Horse is not pleasant to ride ; he turns with difficulty in 
 his stall ; he is unwilling to lie down ; or when down, to 
 rise again ; and he has a curious straddling action. Such 
 Horses are said to be Broken-hacked, or Chinked in the 
 chine (li). Where this impairs the natural usefulness of 
 the Horse, it is such an alteration of structure as con- 
 stitutes Unsoundness. 
 
 For Broken-down, see " Sprain and Thickening of the 
 Back Sinews " (i). 
 
 Broken-knees do not constitute Unsoundness after the 
 wounds are healed, unless they interfere with the action 
 of the joint ; and a Horse may fall from mere accident, or 
 through the fault of the rider (/.•). 
 
 Brokcn-uind is the rupture or running together of some 
 of the air-cells. It is easily distinguished from Thick- 
 wind (/) ; in Thick-wind the breathing is rapid and 
 laborious, but the inspiration and expiration are equally 
 so, and occupy precisely the same tim«. In Broken-tvind 
 the inspiration is j)erformed by one effort, the expiration 
 by two, occupying double the time, which is plainly to be 
 distinguished by observing the flanks. The reason is that 
 when the lungs are expanded, the air will run in easily 
 
 (/) Reported decreases. 
 
 [g) Watson v. Denton, 7 C. & P. 
 86. 
 
 (/*) Lib. U. K. " The Horse," 
 165. 
 
 (/) Sprain and Thickening of the 
 Back Sinews, post. 
 
 {k) Lib. U. K. "The Horse," 
 361. 
 
 {I) Thick-wind, post. 
 
DISEASES, DEFECTS, ETC. 79 
 
 enough, and one effort of the respiratory muscles is 
 sufficient for the purpose ; but when these cells have run 
 into each other, the cavity is so irregular, and contains so 
 many corners and blind pouches, that it is exceedingly 
 difficult to force it out again, and two efforts can scarcely 
 effect it. This disease is also accompanied by a dry and 
 husky cough of a peculiar sound, and is the consequence 
 of Thick- wind (;;?), and of those alterations of structure 
 consequent on inflammation (n). It is most decidedly an 
 UiisoiDidness (o). 
 
 The division of the windpipe just before it enters the Bronchitis, 
 lungs, and the numerous vessels into which it immediately 
 afterwards branches out, are called the Broncliial tubes, 
 and the inflammation of the membrane that lines them 
 is called JJroiic/iifis. It is Catarrh (p), extending to the 
 entrance of the lungs, and is characterized by quicker and 
 harder breathing than Catarrh usually presents ; and by a 
 peculiar wheezing, which is relieved by the coughing up of 
 mucus (q). It is decidedly an Unsoundness. 
 
 Canker is a separation of the horn from the sensible Canker. 
 part of the foot, and the sprouting of fungous matter 
 instead of it, occupying a portion of or even the whole of 
 the sole and frog. It is the occasional consequence of 
 bruise, puncture, corn {r), quitter («), and thrush {t). It is 
 extremely difficult to cure (u), and is an Unsoundness. 
 
 Capped hocks may be produced by lying on an unevenly- Capped hocks, 
 paved stable, with a scanty supply of litter, or by kick- 
 ing (,r), in neither of which cases would they constitute 
 Uusoinuliiess, though in the latter they would be an indica- 
 tion of Vice ; but in the majority of instances they are 
 either the consequence of sprain in the hock, or are ac- 
 companied by enlargement of it, when they would be an 
 Unsoundness (y). 
 
 A Horse with a Cataract is Unsound. See Blindness (s). Cataract. 
 
 The muscles of the breast are occasionally the seat of Chest- 
 a singular and somewhat mysterious disease. The old ^*^^™*^^^- 
 
 (w) Thick-wind, post. [t) Thrush, post. 
 
 («) Lib. U. K. "The Horse," (m) Lib. U.K. "The Horse," 308. 
 
 194. [x) Kicking, post. 
 
 (o) Willan V. C'«/-/£')-, before Mr. [y] Lib. U. K. "The Horse," 
 
 Baron Martin, Lancaster Spr. Ass. 361. See, however, App. to Lib. U.K. 
 
 1853. "TheHorse," Ed. 1862, 522, where 
 
 ( j») See Cough, post. an opinion is given that it is not an 
 
 [q) Lib. U. K. " The Horse," unsoundness, on the ground that it 
 
 189. is never occasioned by strains, and 
 
 {r) Corns, post. is therefore no more than a blemish. 
 
 (s) Quittor, post. (~) Blindness, ante. 
 
80 
 
 "WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE. 
 
 Chinked in 
 the Chine. 
 Clicking. 
 Cloudiness. 
 
 Contraction. 
 
 Farriers called it Anticor and Chcdfonnder. The Horse 
 has considerable stillness in moving, evidently not refer- 
 able to the feet. There is a tenderness about the muscles 
 of the breast, and occasional swelling, and after a while 
 the muscles of the chest waste considerably {(i). It is 
 evidently an UnnoHndness, and was formerly supposed to 
 proceed from rheumatism ; but now, according to later 
 opinions {h), Chestfounder is pronounced to be the result 
 of navicular disease, which, preventing the forelegs from 
 being exercised to the same extent as before, produces an 
 absorption of the muscles of the chest. Anh'cor is dis- 
 tinguished from Chesffoimder, and declared to be an abscess 
 of the breast of the brisket. 
 
 But where an action was brought on the warranty of 
 a Horse, and the plaintiff obtained a verdict on the ground 
 that the Horse was Chestfoinidcrcd, the Court of Common 
 Pleas refused to grant a new trial on the grounds that 
 there was no known disease to constitute such an Unsound- 
 ness, or that the defendant was taken by surprise, the 
 plaintiff having before trial refused to inform him of the 
 cause or nature of the Unsoundness (c). 
 
 For Chinlied in the Chine, see Broken-backed {d). 
 
 As to Clicking, see Overreach {e). 
 
 Cloudiness of the Eye is an Unsoundness, as it is almost 
 quite sure to proceed to complete Opacity of the Lens, 
 Cataract and Blindness (/). 
 
 In Contraction the foot loses its healthy circular form ; 
 it increases in length, and narrows in the quarters, par- 
 ticularly at the heel ; the frog is diminished in width ; 
 the sole becomes more concave ; the heels higher, and 
 lameness, or at least a shortened and feeling action, en- 
 sues. It seems there is nothing in the appearance of the 
 feet which would enable a person to decide when Con- 
 traction is, or is not, destructive to the natui'al usefulness 
 of the animal ; but it is indicated by his manner of going, 
 and his capability for work. Lameness usually accom- 
 panies the beginning of Contraction ; it is the invariable 
 attendant on rapid Contraction, but it does not always 
 exist when the wiring in is slow or of long standing. 
 Contraction may be caused by neglect of paring, by 
 
 (a) Lib. U. K. "The Horse," 
 171. 
 
 {b) Lib. U. K. "The Horse," 
 Ed. 1862, App. 491. 
 
 (c) Alterburt/ 
 Moore, 32. 
 
 {d) Broken-backed, ante. 
 {e) Overreach, post. 
 (/) Blindness, ante. 
 
 Fairmanner, 8 
 
DISEASES, DEFECTS, ETC. 81 
 
 suffering tlie slioes to remain on too long, by the want of 
 natural moisture on account of the feet being kept too 
 dry, or by the removal of the bars, or by Thrushes (g), 
 which, however, are much oftener the consequence than 
 the cause of it. The Contraction, however, which is 
 connected with permanent lameness, though increased by 
 the circumstances just mentioned, usually derives its 
 origin from a cause which acts violently and suddenly, 
 namely, an inflammation of the little plates covering the 
 Coffin bone, and not sufiiciently intense to be charac- 
 terized as Acute founder {//). The contracted heel can 
 rarely or never permanently expand, as neither the 
 lengthened and narrowed Coffin bone can resume its 
 natural shape, nor can the portion of the frog which has 
 been absorbed be restored (/) . 
 
 Contraction of the hoof, when produced by inflamma- When held to 
 tion, or accompanied by disease in the foot, or any ^^ unsoimd- 
 alteration in its natural structure, though it may not 
 cause lameness at the time of sale, yet, if lameness be 
 afterwards produced by it, is an Unsoundness. This was 
 held in the following case, which was tried before Chief 
 Baron Pollock : — It appeared that the plaintiff, who was 
 a Horsedealer, bought a Mare at Lincoln Fair, warranted 
 sound, for 37/. On her way up to town, she gradually 
 became dead lame on her off foreleg. She was brought 
 by easy stages to London, and examined by various 
 Yeterinary Surgeons, who at once asserted that her lame- 
 ness proceeded from a Contraction of the hoof of the off 
 forefoot, which might have existed, and probably did 
 exist, before sale, though the disease had not developed 
 itself in lameness, and that at all events there must have 
 been a strong predisposition to Unsoundness. The defen- 
 dant wrote a letter offering to take her back ; however, 
 it was miscarried, and the Mare was sold by auction for 
 251. An action was brought for the balance, and on this 
 evidence the Jury gave a verdict for the plaintiff (J). 
 
 In the angle between the bars and the quarters, the Corns. 
 horn of the sole has sometimes a red appearance, and is 
 more spongy and soft than at any other part. The Horse 
 flinches when this portion of the horn is pressed upon, 
 and there is an occasional or permanent lameness. This 
 disease of the foot is termed Corns, bearing this resem- 
 
 (g) Thrush, post. 292. 
 
 {h) Founder, post. (J) Greemvay v. Ilarshall, Ex. 
 
 (i) Lib. U. K. "The Horse," Sittings, Dec. 9, 1845. 
 O. G 
 
82 
 
 WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE. 
 
 Cough. 
 
 Held to be 
 ■unsoundness 
 Tvlien tem- 
 porary. 
 
 blance to the corn of the human being, that it is produced 
 by pressure and is a cause of lameness, but differing from 
 it in that the horn, answering to the skin of the human 
 foot, is thin and weak, instead of being thickened and 
 hardened. When it is neglected, so much inflammation 
 is produced in that part of the sensible sole that suppu- 
 ration follows, which is succeeded by quitter (A-), and 
 the matter either undermines the horny sole or is dis- 
 charged at the coronet. The cause is, pressure on the 
 sole at that part, by the irritation of which a small quan- 
 tity of blood is extravasated. The horn is secreted in a 
 less quantity, and is of a more spongy nature, and the 
 extravasated blood becomes inclosed in it. The portion 
 of the foot in which they are situated will not bear the 
 ordinary pressure of the shoe, and any accidental addi- 
 tional pressure from the growing down of the horn or 
 the introduction of dirt or gravel will cause serious lame- 
 ness. They render it necessary to wear a thick and heavy 
 shoe or a bar shoe to protect the weakened and diseased 
 part (/). 
 
 Cor)is are hardly ever found on the hind feet ; in any 
 situation they are very seldom radically cured, and mani- 
 festly constitute Unsoundness. 
 
 A Cough from catarrh or common cold is a complaint 
 of frequent occurrence, generally subdued without much 
 difficulty, but often becoming of serious consequence 
 when neglected. It is accompanied by a little increase 
 of pulse, a slight discharge from the nose and eyes, a 
 rough coat, and a diminished appetite. If the inflam- 
 mation increases the complaint degenerates into bron- 
 chitis (;»), catarrhal fever, thick- wind (w), and broken- 
 wind (o). 
 
 Although it was laid down differently by Mr. Justice 
 Coleridge in Bolden v. Brogden {p), it may now be 
 considered as settled law that a Cough at the time of 
 sale, whether permanent or temporary, is a breach of a 
 ■vyarranty of soundness, and the subsequent recovery of 
 the Horse is no defence to an action on the warranty (q), 
 but may be proved in reduction of damages (r). The 
 
 (k) Quitter, post. 
 
 (0 Lib. U. K. "The Horse," 
 362. 
 
 ()w) Bronchitis, ante, p. 79. 
 
 (w) Thick-wind, post. 
 
 (o) Broken-wind, ante, p. 78 ; 
 Lib. U. K. "The Horse," 188. 
 
 {p) Bolden V. Brogden, 2 M. & 
 Rob. 113. 
 
 {q) Coates V. Stephens, 2 M. & 
 Eob. 157. 
 
 (r) Kiddell v. Burnard, 9 M. & 
 W. 670. 
 
DISEASES, DEFECTS, ETC. 83 
 
 law on the subject of temporary diseases was laid down 
 by Lord Ellenborougb nearly seventy years ago, and with 
 regard to a Cough his Lordship said, "I have always 
 held and now hold that a warranty 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 
 incurable. While a Horse has a Cough I say he is un- 
 sound, although that may be either temporary, or the 
 Cough may prove mortal (s). Any infirmity which renders 
 a Horse less fit for present use and convenience is Unsound- 
 ness^^ (t). 
 
 In a later case an action was brought on the warranty of Confirmed by 
 a Horse, which, immediately on being taken home after ^. l^^er deci- 
 sale, was found to have a Cough. The Cough became ^^^"" 
 worse, and on the Horse being examined by a Veterinary 
 Surgeon eighteen days afterwards, he was pronounced un- 
 sound from diseased bronchial tube and chronic inflamma- 
 tion. Cough being an incident of that disease. However, 
 it appeared that at the time of the trial the Cough had 
 been cured. Mr. Baron Parke, in summing up, said to 
 the Jmy, " I have always considered that a man who buys 
 a Horse warranted sound, must be taken as buying for 
 immediate use, and has a right to expect one capable of 
 that use, and of being immediately put to any fair work 
 the owner chooses." 
 
 " The rule as to Unsoundness is, that if at the time of 
 sale the Horse has any disease which either actually does 
 diminish the natural usefulness of the animal, so as to 
 make him less capable of work of any description, or which 
 in its ordinary progress will diminish the natural usefulness 
 of the animal ; or if the Horse has, either from disease or 
 accident, undergone any alteration of structure that either 
 actually does at the time, or in its ordinary effects will, 
 diminish the natural usefulness of the Horse, such a Horse 
 is Unsound.''^ 
 
 " If the Cough actually existed at the time of the sale 
 as a disease so as actually to diminish the natm'al useful- 
 ness of the Horse at that time and to make him then less 
 capable of immediate work, he was then Unsound; or if 
 you think the Cough, which in fact did afterwards diminish 
 the usefulness of the Horse, existed at all at the time of 
 
 (•■«) MonY.£roffden,4:Ca,mv.28l. (t) Elton v. Jordan, 1 Stark. N. 
 
 P. C. 127. 
 
 g2 
 
Unsoundness. 
 
 84 WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE. 
 
 sale, you will find for the plaintiff. I am not now deliver- 
 ing an opinion formed on the moment on a new subject, 
 but it is the result of a full previous consideration, as I 
 find I differ from the law as laid down by a learned 
 Judge" (ti). The Jury found a verdict for the plaintiff {v). 
 
 Crib-biting. Crih-hiting, being an unnatural sucking in of the air, 
 
 must be to a certain degree injurious to digestion, must 
 dispose to colic, and so interfere with the strength and use- 
 fulness and health of the Horse. Some Crib-biters are 
 good goers, but they probably would have possessed more 
 endui-ance had they not acquired this habit ; and it is a 
 fact well established, that as soon as a horse begins to be- 
 come a Crib-bifer, he, in more than nine cases out of ten, 
 begins to lose condition. He is not to the experienced eye 
 the Horse he was before. The wear of the front teeth, 
 and even the frequent breaking of them, makes a Horse 
 old before his time, and sometimes renders it difficult or 
 almost impossible for him to graze (ic). 
 
 When not an Crib-biting which has not yet produced disease or altera- 
 tion of structure is not an Unsoundness, but is a Vice under 
 a warranty that a Horse is " sound and free from vice." 
 Thus, where an action was brought on the warranty of a 
 Horse which had been sold for ninety guineas, the question 
 was, whether Crib-biting, which was the Vice in question, 
 was such a species of Unsoundness as to sustain the action. 
 The Horse had been warranted sound generally. Some 
 eminent Veterinary Surgeons were called as witnesses, who 
 stated that the habit of Crib-biting originated in indiges- 
 tion ; that a Horse by this habit wasted the saliva which 
 was necessary to digest his food, and that the consequence 
 was a gradual emaciation. They said that they did not 
 consider Crib-biting to be an Unsontidness, but that it might 
 lead to Unsoundness ; that it was sometimes an indication 
 of incipient disease, and sometimes produced Unsoundness 
 where it existed in any great degree. Upon this Mr. Jus- 
 tice Burrough said, " This Horse was only proved to be an 
 incipient Crib-biter. I am quite clear that it is not in- 
 cluded in a general warranty," and the plaintiff was ac- 
 cordingly nonsuited {x). 
 
 (m) Mr. Justice Coleridge in^o^ 1862, p. 523. 
 
 den V. Brogden, 2 M. & Kob. 113. (.r) Broennenhurgh v. HaycocJc, 
 
 {v) Coates v. Stephens, 2 M. & Holt's Rep. 630 ; and see IFash- 
 
 Rob. 157. burn v. Cuddihi/, 8 Gray, 430; 
 
 («■) Lib. U. K. "The Horse," Walker v. Hohington, 43 Vt. 608 
 
 362. See also App. to U. K. Ed. (American Cases). 
 
DISEASES, DEFECTS, ETC. 85 
 
 In a later case a Horse was bouglit waiTanted " sound Held to be a 
 and free from vice," and an action was brought against the ■^'^^• 
 vendor on the ground of its being a Crib-hiter and Wind- 
 sucker {>/) . Veterinary Surgeons were examined who said 
 that the habit of Crib-biting was injurious to Horses ; that 
 the air sucked into the stomach of the animal distended it, 
 and impaired its powers of digestion, occasionally to such 
 an extent as greatly to diminish the value of the Horse, 
 and render it incapable of work. Some of the witnesses 
 gave it as their opinion that Crib-biting was an Unsound- 
 ness ; it was not however shown that in the present instance 
 the habit of Crib-biting had brought on any disease, or 
 had, as yet, interfered with the power or usefulness of the 
 Horse. 
 
 Mr. Baron Parke told the Jury, that to constitute Un- 
 soundness there must either be some alteration in the 
 structure of the animal, whereby it is rendered less able 
 to perform its work, or else there must be some disease. 
 Here neither of those facts had been shown. If, how- 
 ever, the Jury thought that at the time of the warranty 
 the Horse had contracted the habit of Crib-biting, he 
 thought that was a Vice, and that the plaintiS would be 
 entitled to a verdict on that head. The habit complained 
 of might not indeed, like some others (for instance, that 
 of kicking (;:), show Vice in the temper of the animal, 
 but it was proved to be a habit decidedly injurious to its 
 health, and tending to impair its usefulness, and came, 
 therefore, in his lordship's opinion, within the meaning 
 of the term Vice, as used on such occasions as the pre- 
 sent [a). And in the case of Paul v. Hardwick, some of 
 the most eminent Veterinary Surgeons gave evidence that 
 Crib-biting was, in their opinion, at all events, a Vice 
 within the meaning of a warranty that a Horse was 
 free from vice, and the plaintiff had a verdict on that 
 ground {b). 
 
 From sudden or over exertion, the ligaments which tie Curb, 
 down the tendons in the neighbourhood of joints may be 
 extended, and inflammation, swelling and lameness may 
 ensue, or the sheaths of the tendons in the neighbourhood 
 
 {y) Windsucker, post. Chitty on Contracts, 11th ed. 429. 
 
 {z) Kicking, post. And see the American cases of 
 
 [a] ScJiolefield v. Eohb, 2 M. & IFaskburu v.Cuddi/uj, 8 Gray, 438; 
 
 Rob. 210. Dean v. Morley, 33 Iowa, 120; 
 
 {b) Paul V. Hardwick, Sittings at Walker v. Ilohmgton, 43 Vt. 608. 
 Westminster, H. T. 1831, MS.; 
 
86 
 
 WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE. 
 
 Curby Hocks 
 not an Un- 
 soundness. 
 
 of joints, from their extent of motion in these situations, 
 may be susceptible of injmy. A Curb is an affection of 
 this kind. It is an enlargement at the back of the hock, 
 about three or four inches below the point of the hock. 
 Any sudden action of the limb of more than usual violence 
 may produce it, and therefore Horses are found to " throw 
 out curbs" after a hardly-contested race, an extraordinary 
 leap, a severe gallop over heavy ground, or a sudden 
 check in the gallop. Young Horses are particularly 
 liable to it, and Horses that are Cowhoched, or whose hocks 
 and legs resemble those of the Cow, the hocks being turned 
 inward and the legs forming a considerable angle out- 
 wards ; for in hocks so formed the annular ligament must 
 be continually on the stretch to confine the tendon {c). 
 
 A Horse with a Curb is manifestly Unsound. But as 
 Curbs do not necessarily produce lameness, it is considered 
 that Horses with Curbs may be passed as sound on a 
 special warranty being given, that, should the Curb cause 
 lameness within a reasonable time (which time should be 
 fixed) , the seller should be responsible. 
 
 But if a Horse throw out a Curb immediately after 
 sale, it is no breach of a warranty of soundness, even if 
 he had Cuvbij /locks at the time of sale. Thus, where an 
 action was brought on a breach of warranty of sound- 
 ness, it appeared that the plaintiff before sale had objected 
 to the Horse because he had Ciwhy hocks. However, he 
 bought him on a general warranty of soundness being 
 given, and about a fortnight after sale the Horse sprung 
 a Curb. At the trial Veterinary Surgeons were called 
 by the plaintiff, who stated that the term Curby hocks 
 indicated a peculiar form of the hock, which was con- 
 sidered to render a Horse more liable to throw out a Curb, 
 but did not of itself occasion lameness. Lord Abinger, 
 0. B., told the Jury, " that a defect in the form of the 
 Horse, which had not occasioned lameness at the time of 
 the sale, although it might render the animal more liable 
 to become lame at some future time, was no breach of 
 the warranty." And, on a motion for a new trial, the 
 Court of Exchequer refused a rule, Mr. Baron Alderson 
 saying, " Dickenson v. Follett (d) is expressly in point 
 for the defendant, and the law as laid down by me on 
 
 (c) Lib. U. K. "The Horse," 
 2G7. See also App. to U. K. Ed. 
 1862, p. 509. 
 
 [d) Dickenson v. FoUett, I M. & 
 Eob. 299 ; and see Cutting, post. 
 
DISEASES, DEFECTS, ETC. 87 
 
 that occasion has not been questioned in any subsequent 
 case" (c). 
 
 Cuffing, like Speedy cut, arises from badness of struc- Cutting, 
 ture, and being neither a disease nor a bad habit, cannot 
 be pronounced a breach of a warranty of Soundness and 
 freedom from Vice; and although it may be a greater 
 detriment to the Horse than some kinds of Unsoundness or 
 Vice, yet if the wounds occasioned by it did not actually 
 exist at the time of sale, the purchaser has no legal remedy 
 against the buyer. This is a case to which the legal maxim 
 caveat emptor particularly applies ; the purchaser should 
 examine the Horse, and if there appear any probability 
 of Cutting a special warranty should be taken against it. 
 It is always a great annoyance, and the effects produced 
 by it are sometimes most serious. Many Horses go lame 
 for a considerable period after Cutting themselves severely ; 
 and others have dropped from sudden agony and en- 
 dangered themselves and their riders. Cutting renders a 
 Horse liable to serious injury of the legs, and indicates 
 that he is either weak or has an awkwardness of gait in- 
 consistent with safety (/). 
 
 In the only decided case on the subject, it was held that Held not to 
 mere Badness of shape, though rendering the Horse in- be an Un- 
 capable of work, is not Unsoundness. It appeared that at ^^^^ ^^®^* 
 the time of sale there existed neither lameness nor wound. 
 And Mr. Justice Alderson said, " The Horse could not be 
 considered unsound in law merely from Badness of shape. 
 As long as he was uninjured he must be considered sound. 
 Where the injury is produced by the badness of his action, 
 that injury constitutes the Unsoundness^^ (g). 
 
 There are two kinds of Dropsy, which must both be Dropsy of the 
 considered ; namely, Dropsy of the skin and Drop)sy of Skin. 
 the heart. Dropsical swellings often appear between the 
 forelegs and on the chest ; they are effusions of fluid 
 underneath the skin. They accompany various diseases, 
 particularly when the animal is weakened by them, and 
 sometimes appear when there is no other disease than the 
 debility, which, in the spring and fall of the year, accom- 
 panies the changing of the coat {h) . 
 
 When the pericardium or the heart itself becomes in- Dropsy of the 
 flamed, the secretion of the pericardium is much increased, Heart. 
 
 [c) Broivn v. Elkington, 8 M. & [g) Dickenson v. FoUett, 1 M. & 
 
 "W. 132. Eob. 299. 
 
 (/) Lib. U. K. "The Horse," {h) Lib. U. K. "The Horse," 
 
 363, and App. Ed. 1862, p. 523. 171. 
 
WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE. 
 
 Enlarged 
 Glands. 
 
 Enlarged 
 Hock. 
 
 Ewe neck. 
 False Quarter. 
 
 Farcy. 
 
 and so much fluid accumulates as to obstruct the beating 
 of the heart. This is called Dropsy of the heart {h), and 
 each of these diseases is an Unsoundness {i). 
 
 Simple Catarrh will occasionally, and severe affection 
 of the chest ■will generally, be accompanied by a swelling 
 of the Glands under the jaw, and this does not subside 
 for a considerable time after the cold or fever has appa- 
 rently been cured. If the Enlargement is considerable, 
 and especially if tender, and the gland at the root of the 
 ear partakes of it, and the membrane of the nose is redder 
 than it should be, the commencement or lurking of some 
 insidious disease is to be feared (A') ; and a Horse under 
 such circumstances is Unsound. 
 
 When the Hock is enlarged, the structure of this com- 
 plicated joint is so materially affected, that although the 
 Horse may appear for a considerable time to do ordinary 
 work well, he will occasionally fail even as to that, and a 
 few days' hard work will always lame him (/). A decided 
 case of Enlarged hock is an Unsoundness, unless it is a 
 mere blemish, the result of external injuries. 
 
 For Eu-e Neck see Star-gazer {ni). 
 
 Where the coronary ligaments by which the horn of the 
 coronet is secreted, is either divided by a cut or bruise, or 
 eaten through by caustic, there will be a division of the 
 horn as it grows down, either in the form of a permanent 
 Sandcrack {n), or of one portion of the horn overlapping 
 the other. This is not only a very serious defect, and a 
 frequent cause of lameness, but it is exceedingly difficult 
 to remedy (o) ; and must be considered Unsoundness. 
 Sometimes the horn grows down whole, but the ligament 
 is unable to secrete that which is perfectly healthy, and 
 therefore there is a narrow strip of horn of a different and 
 lighter colour. 
 
 Farcy, which is a disease of the absorbents of the skin, 
 ' an Unsoundness. It is immediately connected with 
 
 IS 
 
 Glanders ( p) ; they will run into each other, or their 
 symptoms will mingle together ; and before either arrives 
 at its fatal termination, its associate will almost invariably 
 appear. An animal inoculated with the matter of Farcy 
 
 (h) Lib. TJ. K. " The Horse, "171. 
 
 (i) See Eaves v. Dixon, 2 Taunt. 
 343. 
 
 (k) Lib. U. K. "The Horse," 
 363. 
 
 {I) Lib. U. K. "The Horse," 
 363. See also Lib. U. K., Ed. 
 
 1862, App. 523; and see Capped 
 Hocks, ante, p. 79. 
 
 {»i) Star-gazer, post. 
 
 (ii) Sandcrack, post. 
 
 (o) Lib. U. K. "The Horse," 
 301. 
 
 (p) Glanders, post. 
 
DISEASES, DEFECTS, ETC. 89 
 
 will often be afflicted with Glanders, while the matter of 
 Grlanders will frequently produce Farcy. They are dif- 
 ferent types or stages of the same disease. There is, how- 
 ever, a very material difference in their symptoms and 
 progress; and this most important of all, that while 
 Glanders are generally incurable, Farcy, in its early stage 
 and mild form, may be successfully treated ( 17) . 
 
 Water Farcy, confounded by name with the common "Water Farcy. 
 Farcy, is a dropsical (r) affection of the skin, either of the 
 chest or of the limbs generally [q), and is also an Unsound- 
 ness. 
 
 Inflammation of the Foot, or Acute Founder, is generally Founder, 
 caused by suffering a Horse to stand in the cold or wet 
 after being hard ridden or driven, and is called " Fever in 
 the feet." This fever is not easily subdued ; and, if it be 
 subdued, it sometimes leaves after it some fearful conse- 
 quences. The loss of the hoof is not an unfrequent 
 one (.s). A Horse, therefore, which either has " Fever in 
 the feet," or has been at all injured by it, is Unsound. 
 
 For Gibbing, see Backing and Gibbing it). Gibbing. 
 
 The most formidable of all the diseases to which the Glanders. 
 Horse is subject is Glanders. It is described by writers 
 fifteen hundred years ago ; and it was then, and is now, 
 not only a loathsome, but an incurable, disease. The 
 most early and unquestionable symptom of Glanders, is an 
 increased discharge from one or both nostrils ; different 
 from the discharge of Catarrh, because it is usually lighter 
 and clearer in its colour, and more glutinous or sticky. 
 It is not discharged occasionally and in large quantities 
 like the mucus of Catarrh, but it is constantly running from 
 the nostril (») . It need hardly be said that a Glandered 
 Horse has on him the worst sort of Unsoundness. 
 
 It is a disease not only infectious to beasts (r), but also Infectious to 
 to man. Thus, in the spring of 1853 a whole family in iQ^i^^^ii*!- 
 Sligo died of Glanders. The father first caught it from a 
 Horse bought at a fair in Mayo, and then his wife and 
 four children took it and all died in great agony. There- 
 
 {q) Lib. U. K. "The Horse," bins, 10 Gush. (Mass.) 520), it was 
 
 128, 131. held that the moment symptoms of 
 
 (>•) Dropsy, ante, p. 87. glanders appear in a Horse he is 
 
 [s] Lib. U. K. "The Horse," unsound; and that whether or not 
 
 290. the symptoms are in fact the seeds 
 
 {t) Backing and Gibbing, ante, of the disease is to be proved by 
 
 p. 75. the future history of the horse. 
 
 [u) Lib. U. K. "The Horse," (v) ^eeBaird^r. Graham, UOourt 
 
 12i ; and see Farcy, ante. In an of Sess. 615 (Sco.). 
 American case {Woodbury v. Rob- 
 
90 
 
 WHAT DISEASES CONSTITUTE UNSOUKDNESS OR VICE. 
 
 Contagious 
 Diseases 
 (Animals) 
 Act. 
 
 Glaucoma. 
 
 Grease. 
 
 Grogginess. 
 
 fore, knowingly to bring a Griandered Horse into a public 
 place is held to be an indictable offence («•). 
 
 By the Contagious Diseases (Animals) Act, 1878 (41 & 
 42 Yict. c. 74), sect. 32, sub-ss. xxsii., xxxiii., the Privy 
 Council may from time to time make such general or special 
 orders as they may think fit, subject and according to the 
 provisions of the act, for applying all or any of the pro- 
 visions of the act to Horses, Asses, and Mules, and to 
 glanders and farcy, and other diseases thereof ; and for 
 extending for all or any of the purposes of the act the 
 definition of disease in the act, so that the same shall for 
 those purposes comprise any disease of animals in addition 
 to the diseases mentioned in the act. Accordingly, by 
 Order 442, Horses, &c, are to be deemed " animals," and 
 glanders and farcy "diseases;" and it shall not be lawful to 
 expose a diseased Horse in a sale-yard or other public or 
 private place where Horses, &c. are commonly exposed for 
 sale. And provisions are also made against placing a 
 diseased Horse in a lair, &c. adjacent to a market or fair, 
 and also with regard to the carriage and pastming of 
 diseased Horses. 
 
 Glaucoma is a dimness or obscurity of sight from an 
 opacity of the vitreous humour. It is difficult to ascertain, 
 and is only to be discovered by a very attentive examina- 
 tion of the eye. It prevents a Horse from appreciating 
 objects, and is therefore an Unsoundness {x). 
 
 Swelled legs, although distinct from Grease, are apt to 
 degenerate into it. It is an inflammation of the skin of 
 the heel ; sometimes of the fore, but of tener of the hind, 
 foot. The skin of the heel of the Horse somewhat differs 
 from that of any other part. There is a great deal of 
 motion in the fetlock, and to prevent the skin from 
 excoriation or chapping, it is necessary that it should be 
 kept soft and pliable ; therefore, in the healthy state of 
 the part, the skin of the heel has a peculiar greasy feel. 
 Under inflammation, the secretion of this greasy matter is 
 stopped, the heels become red, dry and scurfy ; and being 
 almost constantly in motion, cracks soon succeed ; these 
 sometimes extend, and the whole surface of the heel 
 becomes a mass of soreness, ulceration and fungus (y) . 
 "When this disease renders a Horse unfit for immediate 
 work, it must be considered an Unsoundness. 
 
 The peculiar knuckling over of the fetlock- joint and 
 
 {w) Req. V. Senson, 1 Dears. & B., Westminster, Feb. 10, 1857. 
 Pearce, C. C. 24. (y) Lib. U. K. "The Horse," 
 
 (.r) Settle V. Garner, cor. Martin, 276. 
 
DISEASES, DEFECTS, ETC. 91 
 
 tottering of tlie whole of tlie fore leg, known by the name 
 of Grof/gincss, and which is so often seen in old and over- 
 worked Horses, is seldom an affection of either the fetlock 
 or pastern joints simply, although these have their full 
 share in the mischief that has been produced. It is some- 
 times difficult to fix on any particular joint ; at other times, 
 it seems to be traced to a joint deep in the foot, where the 
 flexor tendon runs over the navicular bone. It seems 
 usually to be a want of power in the ligaments of the 
 joints, generally produced by frequent and severe sprains, 
 or by ill-judged and cruel exertion, and, in the majority 
 of cases, admits of no remedy, esf)ecially as dissection often 
 discovers ulceration within the joints and of the membrane 
 which lines the cartilage, and even of the cartilage itself, 
 which it was impossible to reach or to remove (s) . "When 
 it exists in such a degree as to diminish the natural useful- 
 ness of the Horse, it must be considered an Unsoundness. 
 
 Grunting is an Unsoundness ; see Eoaring {a). Grunting. 
 
 Gutta serena, commonly called Glass-eye, is a species of Gutta serena. 
 Blindness. The pupil is unusually dilated ; it is immove- 
 able, bright and glassy. It is a i^alsy of the optic nerve, 
 or its expansion, the retina, and is usually produced 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 great, that the nerve has 
 been injured and its function destroyed [IS). It is an 
 Unsoundness. 
 
 There is scarcely a malady to which the Horse is subject Hereditary 
 which is not Kcreditary. Contracted feet, Curb, Spavin, <ii«ease. 
 Hearing, Thick- wind, Blindness, notoriously descend from 
 the father and dam to the Foal, which from them inherits 
 its constitution and endurance (c). It would no doubt be 
 a matter of great difficidty to maintain an action on a 
 breach of warranty of soundness on the sale of a Horse, 
 on the groimd of Hereditary disease alone, but it is pre- 
 sumed 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 
 
 (::) Lib. U. K. "The Horse," (4) Lib. U. K. "The Horse," 
 
 252. See also Lib. U. K. App. 116. And see Patent Defects, post. 
 
 Ed. 1862, p. 507. (e) Lib. U. K. " The Horse," 
 
 [a] Roaring, post. 35, 221. 
 
92 
 
 WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE. 
 
 Kickint 
 
 Kidney- 
 dropping 
 
 Lameness. 
 
 Temporaiy 
 lameness an 
 Unsoundness. 
 
 the Goggles, which was stated by farmers and others con- 
 veisant with sheep to arise from "breeding in and in from 
 relations;" and that sheep so disordered will thrive and 
 seem to be in sonnd health until they be about two or 
 three years old ; that there were no means of discovering 
 by the appearance or otherwise when sheep are affected ; 
 that it is generally fatal, and no cure or prevention known 
 for it, and that it was reputed among farmers an Unsound- 
 ness. Chief Justice Abbott left it to the Jury to say, 
 " whether, at the time of the sale, the sheep had existing 
 in their blood or constitution the disease of which they 
 afterwards died, or whether it had arisen from any subse- 
 quent cause." And on this direction a verdict was found 
 for the plaintiff (<■/). 
 
 KicJiing, either in the stable or in harness, is a bad and 
 dangerous habit, and therefore a Vice. Some Horses, 
 particularly 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 produces 
 swelled hocks or some more serious injury. It shows Vice 
 in the temper of the animal (e) , and it is very seldom that 
 a confirmed Kicker can be cured (/). 
 
 A Kidney-droppev 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 (g). 
 
 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 soundness 
 may be afterwards affected must depend on the circum- 
 stances of the case {h). 
 
 The law as laid down in Coates v. Stephens (i) and 
 Kiddle v. Burnard{k), with regard to temporary diseases, 
 is the same as was formerly held by Lord Ellenborough, 
 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 
 
 [d) JoViff V. Bendcll, R. & M. (/;) Lib. U. K. "The Horse," 
 
 136. 364. 
 
 {e) Lib. U. K. "The Horse," {%) Coates v. Stephens, 2 M. & 
 
 336. Rob. 137, overruling Boldcn v. 
 
 (/) Scholejicld v. Bohb, 2 M. & Brogden, 2 M. & Rob. 113. 
 
 Rob. 210. (A) Kiddell v. Burnard, 8 M. «fc 
 
 ((/) See Eastmau''s case, Lambeth W. 070. 
 Police Court, Nov. 11, 1853. 
 
DISEASES, DEFECTS, ETC, 93 
 
 to prove that the lameness was of a temporary nature, and 
 that the Horse had afterwards recovered, since which he 
 had been perfectly sound : however. Lord Ellenborough 
 said, " I have always held and now hold, that a warranty 
 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 incurable. While a Horse has a 
 Cough I say he is Unsound, although that may either be 
 temporary or may prove mortal. The Horse in question 
 having been lame at the time of sale, when he was war- 
 ranted to be sound, his condition subsequently is no defence 
 to the action" (/). And in another case, on the trial of an 
 action on the warranty of a Horse where the evidence was 
 very contradictory, but a witness of the defendant's ad- 
 mitted that he had bandaged one of the fore legs of the 
 Horse, but not the other, because the one was weaker than 
 the other. Lord Ellenborough said, " To constitute Un- 
 soundness, it is not essential that the infirmity should be of 
 a permanent 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 ulti- 
 mately prove fatal. Any infirmity which renders a Horse 
 less fit for present use and convenience is Unsoundness'^ {ni). 
 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 
 waiTanty 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 (»). 
 
 Lnminitis is an inflammation of the LcnnincB 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 structure as is 
 without doubt Unsoundness (o), 
 
 (?) Eltony. Broffden,4: Ca.m-p. 281, («) Garment v. Sars, 2 Esp. 673. 
 
 (»») Elton V. Jordan, 1 Stark. [o) See IfaU v. Rogerson, Appen- 
 
 N. P. C. 127. dix ; Smart v. Allison, Appendix. 
 
94 
 
 WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE. 
 
 Lampas. 
 
 Liver disease. 
 
 Lungs 
 hepatized. 
 
 Mallenders 
 and Sallen- 
 ders. 
 
 Mange. 
 
 Navicular 
 Joint disease. 
 
 Nerved 
 Horse. 
 
 Some of the lower bars of the paLate occasionally swell, 
 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. 
 
 A diseased Liver is of course an Unsoundness {q). 
 
 All diseases of the Lungs constitute Unsoundness. The 
 various symptoms were discussed in the case of Hyde v. 
 Daris (q). 
 
 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 erup- 
 tion, 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 proceeds from 
 them which it is afterwards difficult to stop (r). They 
 must be considered Unsoundness. 
 
 The 3Ian(je is a pimpled or lumpy eruption of the skin, 
 followed by blotches covered with scurf ; these change into 
 scabs, and occasionally extend over the whole carcase ; it is 
 one of the most contagious diseases to which the Horse is 
 exposed (s). A Mangy Horse is decidedly Unsound. 
 
 The Navieular Joint disease is Unsoundness, as it produces 
 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 contracted (f). 
 An action was brought for the breach of an alleged war- 
 ranty ; the Unsoundness in question was what is termed 
 " Navicular disease," which was stated to be an inflamma- 
 tion 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 permanently cured, so as to 
 qualify him for hard work {u). The " Navicular disease" 
 is an Unsoundness, and is iucm-able {j:). 
 
 A Horse on whom the operation of Nervinej has been 
 
 [p) Lib. U. K. "Tlie Horse," 379; and see Scab, post. 
 
 134. (0 Bywater v. Bichardson, 1 A. 
 
 {q) See Hyde v. Davis and Buclc- & E. 508. 
 
 ingham v. Rogers, Appendix. («) Bywater v. Richardson, 1 A. 
 
 (>•) Lib. U. K. "The Horse," & E. 508. 
 
 273. (•*■) Matthews v. Farker, Appea- 
 
 (.s) Lib. U. K. " The Horse," dix. 
 
DISEASES, DEFECTS, ETC. 95 
 
 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 {y). 
 
 This was decided in the following case, soon after Held to be 
 Neurotomy had been first introduced by Veterinary Sur- Unsound, 
 geons. An action was brought on the warranty of a 
 Horse which had been Nerved. 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 leg ; that it was usually performed in order to re- 
 lieve 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, ac- 
 cording to its character ; that Horses previously lame 
 from the pain of such a disease would, when Nerved, fre- 
 quently 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, whether by accident or de- 
 sign, was Unsound, and could not be safely trusted for any 
 severe work, and that it was an organic defect {z). 
 
 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 an 
 useful nerve was imperfect, and had not that capacity of 
 service which is stipulated for in a warranty." And the 
 Jury returned a verdict for the plaintiff {a) . 
 
 The most frequent disease of the Nose is an increased Nose, Chronic 
 and thickened discharge from it. It may properly be <iischarge. 
 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 every symptom of Catarrh 
 and fever has passed away, and an almost incredible 
 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 sometimes evidently 
 mingled with matter or pus ; and either constantly running, 
 or snorted out in masses many times in the day, often 
 
 [y) Lib. U. K. "The Horse," (2) Besty. Osborne, R. & M. 290. 
 
 364. («) Ibid. 
 
the Carti 
 lasses 
 
 96 WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE. 
 
 continuing several montlis, and sometimes eventually de- 
 stroying the Horse (6). Such a disease is without doubt 
 an Unsoundness. 
 
 Not lying It occasionally happens that a Horse will seldom or 
 
 ^^"^^- never Lie down 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 (c) . 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 Opacity of the crystalUne Lens of the eye is an Unsound- 
 
 theLens. ^^^^^^ See Blinducss (r/). 
 
 Ossification of The Slide 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 Ring- 
 bone (e) ; 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 effect the instances are very numerous, a few heavy 
 di'aught horses arriving at old age without this change 
 of structure (/) . Like Eingbone (^7), it is an Unsound- 
 ness [It). 
 
 Overreach. This very disagreeable noise known by the name of 
 
 " Clicliing, Oi-erreach," &c. arises from the toe of the 
 hind foot knocking against the shoe of the fore foot («'). 
 It is not altogether free from clanger, 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 Overreach, see False-quarter (/.■) and 
 Uuittor (/). This defect, like Cutting («?), arises from the 
 bad formation of the Horse {ni) and is therefore neither an 
 
 (b) Lib. XJ. K. "The Horse," [h) See Simpson v. Fotts, Ap^en- 
 121. dix. 
 
 (f) Lib. U. K. "The Horse," (i) Lib. U. K. "The Horse," 
 
 341. See App. to Lib. U. K. Ed. 341. 
 
 1862, p. 521. (k) False -quarter, ante, p. 88. 
 
 (d) Blindness, ante, p. 75. (0 Qi^iittor, post. 
 
 (c) Ringbone, post. (m) Brown v. Elkington, 8 M. & 
 (/) Lib. U. K. "The Horse," W. 132; Dickenson \. Follett, 1 M. 
 
 310. & Rob. 299. 
 
 {g) Ringbone, post. 
 
DISEASES, DEFECTS, ETC. 97 
 
 Unsoundness nor a Vice; but if suspected, a special warranty 
 should be taken against it. 
 
 The Parotid Gland is placed in the hollow which ex- Parotid 
 tends from the root of the ear to the angle of the lower ^V^^^ "^*'®' 
 jaw. In bad Strangles, and sometimes in violent cold, it 
 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 Un- 
 soundness (n). 
 
 The point of juncture between the head and the bone Poll-evil, 
 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 neighbour- 
 ing parts (o). 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 i,his unnatural weight, and becomes convex or rounded, 
 and thus, coming in contact with the ground, it gets 
 bruised and injured {p). This is called Pumiced-feet ; it is 
 incm-able, and is decidedly an Unsoundness. 
 
 A Horse will sometimes partly chew his hay, and suflter 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 {q) . It would be a symptom 
 of Unsoundness while the sore throat lasted. 
 
 Quittor is an Unsoundness. It has been described as Quitter. 
 being the result of neglected or bad tread or Over- 
 reach (r) ; but it may be the consequence of any wound 
 in any part of the foot. In the natural process of ulcera- 
 tion matter is thrown out from the wound ; this precedes 
 
 («) Lib. U. K. "The Horse," (p) Ibid. 291. 
 
 148. (y) Ibid. 342. 
 
 (o) Ibid. 153. {r) Overreach, ante, p. 96. 
 
 O. H 
 
98 WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE. 
 
 the actual liealing of tlie part. The matter which is 
 thrown out in wounds of the foot is usually pent up there, 
 and increases in quantity, and thus m^ges its way in every 
 direction ; it forces the fleshy little plates of the coffin 
 bone from the horny ones of the crust, or the horny sole 
 from the fleshy sole, or even eats deeply into the internal 
 parts of the foot. These Pipes or Sinuses rim in every 
 direction, and constitute the essence of Quiff or (s). 
 Rat -tails. On the back part of the leg are sometimes excrescences 
 
 called by Farriers Raf-faih, from the appearance they 
 give the hair. They generally yield to mild treatment (f), 
 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 Unsouiidjiess. 
 Rearing. Iieari)i(/, which is unprovoked by the bruising and 
 
 laceration of the mouth, is an inveterate and dangerous 
 bad habit {u), and a Vice. 
 Rheumatism. In the case of Couch V. Calbrcfh (jc) it was held, by the 
 Supreme Court of South Carolina, that in questions of 
 unsoundness, where the disease is chronic, like rheumatism, 
 it is not necessary to show that the symptoms existed at 
 the time of sale, for subsequent incidents and appearances 
 may show that the disease existed before the sale, although 
 the symptoms had not then been observed. 
 Ring--bonc. Ring-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 only, there is Httle 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 [y) . The law respecting 
 
 («) Lib. U. K. "The Horse," (.c) 11 Rich. Law, S. C. 9. 
 
 302. iy) Lib. U. K. "The Horse," 
 
 {t) Ibid 275. 254, 365. 
 
 \i,) Ibid. 337. 
 
DISEASES, DEFECTS, ETC. 99 
 
 Bone-spavin (z) appears on principle to be exactly appli- 
 cable to Ring-bone, the slightest appearance of which must 
 be considered an Unsoundness, whether it produce lameness 
 or not. 
 
 Roaring is so called from a peculiar sound uttered by Roaring. 
 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 of Roaring is a tough and viscid substance 
 which is thrown out in the shape of fluid, and adheres to 
 the side of the larynx and upper part of the windpipe, 
 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. Roaring is no • 
 
 unusual consequence of Strangles («), and it may proceed 
 from tight reining [h). Lord Mansfield and Lord Ellen- 
 borough seemed to think that Roari)ig was not necessarily 
 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 permanency, 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 difficult 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 by the 
 circumstance of the neck of the icindjjipe being too narrow for 
 accelerated respiration, and that the disorder is frequently 
 produced by sore throat or other topical inflammation, and 
 that the disorder is of such a nature as to incommode a 
 Horse very much when pressed to his speed. And Lord 
 EUenborough said, "If a Horse be affected by any 
 malady which renders him less serviceable for a per- 
 
 (;) Bone-spavin, ante, p. 77. (/') Lib. U. K. "The Horse," 
 
 (ft) Strangles, post. IGO. 
 
 ii2 
 
100 
 
 WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE. 
 
 manency, I have no doulot that it is an Unsoundness. I 
 do not go by the noise, but by the disorder" (c). 
 
 And in a previous case, where an action had been 
 brought on the Avarranty of a Horse, whicli 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 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 Un- 
 soundness. The plaintiff 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 {d), 
 
 Rolling. 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 collar, 
 and being cast. Yet, although the Horse is cast, and 
 bruised, and half-strangled, he will roll again on the fol- 
 lowing night, and continue so to do as long as he lives {e). 
 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 valuable, 
 and when inveterate may perhaps be considered a Vice. 
 
 Eunniiig Some headstrong Horses will occasionally endeavour to 
 
 away. -^^-^^ with the best rider. Others, with their wonted saga- 
 
 city, endeavour thus to dislodge the timid or unskilful. 
 Some are hard to hold, or bolt only during the excitement 
 of the chase ; others will Run awaij, prompted by a vicious 
 propensity, alone. There is no cure here; and being a 
 bad and dangerous habit, it is a Vice (/). 
 
 Saddle-galls. When the Saddle has been suffered to press long upon 
 the withers, a tumom^ 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 {g). It may burrow beneath the shoulder- 
 
 Eames, 2 Stark. 
 
 (e) Onslow 
 N. P. C. 81. 
 
 {(I) Basseit v. CoUis, 2 
 522. 
 
 Camp. 
 
 (f) Lib. U. K. " The Horse," 
 3-12. 
 
 (/) Ibid. 337. 
 
 (V) Poll-e\-il, ante, p. 97. 
 
DISEASES, DEFECTS, ETC. IQl 
 
 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 Siffasfs {/i). If the smallest 
 Warble is in such a situation as to prevent the putting 
 on of a saddle or harness, it is a breach of a Warrant// of 
 Soundness (i). 
 
 On this point Mr. Baron Parke expressed an opinion in Pimple on a 
 Kiddell v. Barnard {/:), where he said, " If the disease were Horse's skin, 
 not of a nature to impede the natural usefulness of the 
 animal for the purpose for which he is used, as, for in- 
 stance, if a Horse had a slight Pimple on his skin, it would 
 not amoimt to Unsoundness ; but even if such a thing as a 
 Fbnple 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 animal, 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 him 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 (/). 
 
 Salienders constitute Unsoundness. See Mallenders {ni). Sallenders. 
 
 Sander acli, as its name imports, is a Crack or division of Sandcrack. 
 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 disposi- 
 
 (A) Lib. IT. K. "The Horse," W. 670. 
 169. {I) Ainslei/ v. Broicn, before 
 
 (i) The same principle is appli- Mr. Justice "Wightman, Newcastle 
 
 csXAe to Bruised Shoulder. Spring Assizes, 18-15. 
 
 {k) Eiddcll V. Burneird, 9 M. & {m) See Mallenders, ante, p. 94. 
 
102 
 
 WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE. 
 
 Scab. 
 
 Statute of 
 Hen. 8. 
 
 Shivering 
 
 Shying. 
 
 Shying the 
 result of 
 short-sight- 
 edness. 
 
 tion 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 Fahc Quarter {n) ; and where the 
 horn has grown down whole, but leaves a narrow strip of 
 horn of a different and lighter colour, this indicates that 
 there has been a Sandcracl-, and that a disposition to it may 
 possibly remain (o). Sandcrack is an Uii ■soundness ; but as 
 in the case of a Cm*b {})), if a Horse, without any indica- 
 tion of having previously had the disease, throw out a 
 ScDidcraeJc immediately after sale, it is )io breach of a war- 
 ranty of Sou)idness. 
 
 The Scab is a disease which constitutes a breach of war- 
 ranty of Soundness, and there is a form of declaration in 
 the Liber PlacifaHdi {q), in a case where, in consequence 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 Mare infected with 
 Scab or Mange, in any Common or Common Fields, on 
 pain of forfeiting lO.S'., which offence shall be inquirable 
 in the leet, as other common annoyances be, and the for- 
 feiture shall be to the lord of the leet. This statute was, 
 however, repealed by the 19 & 20 Yict. c. 64. 
 
 Shicering is a disease known among the London Dray 
 Horses. The Horse constantly shivers, and frequently 
 cannot lie down ; he is unable to back, and consec^uently 
 can only be used in the team and not in the shafts. This 
 would no doubt be a breach of a warranty of Soundness. 
 
 Shoulder, Bruised. See ante, 101, n. (?'). 
 
 Shying is often the result of cowardice, playfulness or 
 want of work. 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 (;•). 
 When confirmed, it is a bad and dangerous habit, and 
 therefore a Vice. 
 
 Shying sometimes, however, results from defective sight. 
 An unusual convexity in the formation of the cornea of 
 the eye will produce short-sightedness, and if, as is often 
 
 («) False-quarter, ante, p. 88. 
 (o) Lib. U. K. "The Horse," 
 301. 
 
 (p) Curb, ante, p. 85. 
 
 (q) Lib. Plac. 30. 
 (r) Lib. U. K. "The Horse," 
 344. 
 
DISEASES, DEFECTS, ETC. 103 
 
 the case, tliere is thereby iuduced a habit of shying, such 
 shying is an Unsoundness, although there is no disease, and 
 although it is the natural result of a congenital malforma- 
 tion of the eye {s). 
 
 Side-bones is the same disease as Ossification of the carti- Side-bones. 
 lages(i^). 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 Unsoundness, 
 whether it produces lameness or not (u). 
 
 Many Horses are very clever at Slipping the collar at Slipping the 
 night ; they gorge themselves with food, and run the risk '^°ll^'^^"- 
 of being kicked and lamed by other Horses {v) . 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-spavin («'), Spa\an. 
 and Bone-spavin (x). 
 
 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 Speed //-cut, 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 
 of 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 Horse 
 drops as if he were shot (//). Speed ij-cut, like Cutting (;:), 
 is the consequence of defective shape ; and therefore, 
 where a Horse is sound at the time of sale, lameness from 
 a Speed//-cut immediately afterwards is no breach of a 
 Warrant// of Soundness. 
 
 A Splint, like a Bone-spa L-i)i (a), 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-sparin, by preventing the proper ilexion 
 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 Spjlint sometimes. It entirely 
 depends on the situation of the bony tumour on the inside 
 
 (?) RoJidaij y. Morgan, 28 L. J., («) Blood and Bog-spavin, ante, 
 
 Q. B. 9. See ante, p. 71. p. 77. 
 
 {t) Ossification of the Cartilages, {x) Bone-spavin, ante, p. 77. 
 
 ante, p. 96. (y) Lih. U. K. "The Horse," 
 
 («) Simpson V. Fotts, Appendix. 245. 
 
 \v) Lib. U. K. "The Horse," {--) Cutting, ante, p. 87. 
 
 344. [ft) Bone-spavin, ante, p. 77. 
 
104 
 
 WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE. 
 
 Decision on 
 the subject. 
 
 Sprain and 
 Thickening 
 of the Back 
 Sinews. 
 
 of the shank-bone, whether a Splint is to be considered 
 an Unsoundness {b). 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 
 unsightly, it does not lessen the capabilities and value of 
 the animal (e) . 
 
 In an action on the Warranty of a Horse "to be sound 
 wind and limb at this time," the breach of which was 
 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 ; 
 that the Splint in this instance was in a very bad situation, 
 as it pressed upon one of the sinews of the leg and was 
 calculated to produce, when the Horse was worked, inflam- 
 mation 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 par- 
 ties 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 hrohen" {d). 
 
 The Back Sinews are inclosed in a sheath of dense cellu- 
 lar substance, to confine them in their situation and to 
 defend them from injury. Between the tendon and the 
 sheath there is a mucous 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 produced, 
 and a different fluid is thrown out, which coagulates, 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-continued exertion, 
 some of the fibres which tie the tendons down are ruptured. 
 
 {b) See App. to Lib. U. K. Ed. 
 1862, 524, where Professor Spooner 
 gives it as his opinion that situation 
 has less to do with the lameness 
 occasioned by splint than the cha- 
 racter of the sphnt. He considers 
 that the test of its being an un- 
 soundness or not is, whether there 
 
 is tenderness or not on its being 
 pressed. 
 
 {(■) Lib. IT. K. "The Horse," 
 365. 
 
 {(1) 3[argetsoH v. Wright, 1 M. & 
 So. 622. See also Smith v. O^Brien, 
 11 L. T., N. S. 316; and post, 
 pp. 136, 137. 
 
DISEASES, DEFECTS, ETC. 105 
 
 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 cloicn{e). 
 
 A Thickening of the back 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 office it is to raise the neck and Star-gazer. 
 elevate the head, is too powerful in its action, the top of 
 the Horse's head is pulled hack 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 Ewe-necked, 
 beauty of the Horse is concerned ; he is Ewe-necked, that 
 is, he has a neck like a ewe, hollowed above, projecting 
 below, and the neck rises low out of the chest, sometimes 
 lower even than the points of the shoulders (/). These 
 being defects in the formation of a Horse are neither Un- 
 soundness nor Vice. 
 
 Strangles are peculiar to young Horses, almost all of Strangles. 
 which have it once. It is quite different from Grlanders (g), 
 though they have sometimes been confounded. In its 
 early stage it resembles a common cold and is accompanied 
 with sore throat. It is not dangerous, and is Unsoundness 
 onJi/ 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, observable 
 when the Horse first comes out of the stable, and gradually 
 ceasing on exercise. It is probably so called from its re- 
 semblance 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 endur- 
 ance, and is almost entirely confined to well-bred Horses (/) . 
 
 There has always, until lately, been a difference of Held to be 
 opinion whether String-halt constitutes Unsoundness ; how- anXJnsound- 
 ever, in Thompson v. Patteson it was held to be so, and as ^®^^" 
 the case has not been reported, it will now be given at 
 some length. It was tried before Mr. Justice Cresswell 
 
 {e) Lib. U. K. "The Horse," (A) Lib. U. K. "The Horse," 
 
 246. 123 ; Story on Contracts, 309. 
 
 (/) Ibid. 155. {i) Lib. U. K. " The Horse," 
 
 [g) Glanders, ante, p. 89. 365. 
 
106 WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE. 
 
 at the Liverpool Summer Assizes, 1846, and was an action 
 of Assumpsit on the warranty of a Horse, the breach of 
 which was Wilremhauncli or ^tring-Jialt 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 de- 
 fendant denied, saying there was nothing but the previous 
 kick. The horse was eventually bought for 52/., the de- 
 fendant warranting him "sound, except a kick on the 
 hock." The Horse was String-halted on both legs. 
 
 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 String-halt unsoundness, Mr. Howarth of Man- 
 chester, a Veterinary Surgeon, described it to be a spasmodic 
 affection of the ahdndor 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 Col- 
 lege. He had seen Ilorses 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 cj^uestioned 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-half does not impair a Horse's condition. He 
 had examined the Horse in question and considered him 
 Sound. 
 
DISEASES, DEFECTS, ETC. 107 
 
 Upon this his Lordship said, " It is a question for the 
 Jury whether String-half 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 Strincj-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 Thicliening of the Back Sinews see Sprain and Thickening 
 Thickening of the Back Sinews (/.:) . _ Sinews^"""^ 
 
 Thick-wind consists of short, frequent and laborious -Ph' 1 " ' l 
 breathings, especially when the Horse is in exercise ; the 
 inspirations and expirations often succeeding each other 
 so rapid 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, aud 
 so are almost all Horses unused to exercise or violently 
 exercised on a full stomach. The principal cause, how- 
 ever, of Thick-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 to ^'-•1<'- 
 lameness. 
 
 In a case tried at Liverpool before Mr. Justice Cress- Held not an 
 well, it appeared that a Horse, whose feet were Thin- "linsoimdness. 
 soled, was sold warranted sound. Some time after sale 
 he went lame, and an action was brought on the warranty. 
 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 Uisound. And 
 Mr. Justice Cress well in summing up said, " The plaintiff 
 must, in order to recover in this action, make out that the 
 Horse was 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. Elkington {n), where 
 
 {k) Sprain and Thickening of the 193 ; Atlcinson v. Eorridge, Appen- 
 
 Back Sinews, ante, p. 104. dix. 
 
 [1) Broken-Avind, ante, p. 78. («) Brown v. Elkington, 8 M. & 
 
 (w) Lib. U. K. "The Horse," W. 132. 
 
108 
 
 WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE. 
 
 Lord Abinger, C. B., held that Curby-liocks (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 of Soundness ; and therefore 
 unless you are of opinion that that peculiar formation had 
 produced, at the time of sale, actual lameness, you will 
 find for the defendant," which the Jury accordingly 
 did(i;). 
 
 ThoroughpLn. 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 {q). 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 pro- 
 jects in the form of a round swelling. It is called a 
 Thoronghpln, and is an indication of considerable work, 
 but, unless it be of great size, it is rarely attended with 
 lameness ((/). 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 warranty 
 against it had better be taken. 
 
 Thrush. A TJtrush 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 Unsound- 
 ness. 
 
 TrippiBg. Tripping arises from a heavy forehead, and from the 
 
 fore legs being too much under the Horse, so that, like 
 Cutting (;*), it is a consequence of malformation; it also 
 may indicate tenderness of the foot, Grrogginess (?<), or 
 
 (o) Ciu-by-hocks, ante, p. 86. 
 
 {p) Bailey v. Forrest, 2 C. & K. 
 131. 
 
 {q) Lib. U. K. "The Horse," 
 265. 
 
 (>■) Canker, ante, p. 79. 
 (*) Lib. IT. K. "The Horse," 
 3G6. 
 
 {t) Cutting, ante, p. 87. 
 («) Grogginess, ante, p. 90. 
 
DISEASES, DEFECTS, ETC. 109 
 
 old lameness (tr). 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 many Horses, perfectly quiet in other respects, Vicious to 
 are Vicious to clean, and this probably is the consequence clean, 
 of great sensibility in the skin, and of maltreatment at 
 some time or other ; and although it may be gradually 
 overcome by kindness {a), yet, when it exists in such a 
 degree as to be dangerous, it is a Vice. 
 
 The same may be said of being Vicious to sJioe as where Vicious to 
 a Horse is Vicious to clean, except that it is much less shoe, 
 common; however, when it is dangerous to shoe such a 
 Horse, he must be considered to have a Vice (i/) . 
 
 Horses perfectly white or cream-coloured have the iris Wall-eyed. 
 icJiite and the pujv'l red. When Horses of other colours, 
 and they are usually pied ones, have a ickife iris and a 
 black pupil, they are said to be Wall-eyed. Yulgar 
 opinion has decided that a Wall-eijed 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 {a). Warbles. 
 
 Warts are tumours of variable size, arising first from the Warts. 
 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 (b). Unless, 
 however, they exist to such an extent as to impede any of 
 the natural functions, or in such a situation as to prevent a 
 saddle, bridle, or harness being put on a Horse, they are 
 not 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 from the Coronet to the toe, an angle 
 is formed, amounting probably to not more than forty 
 instead of forty-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 midway 
 between the Coronet and the toe. Horses with these feet 
 
 («') Lib. U. K. "The Horse," {a) Saddle-galls, ante, p. 100. 
 
 344. [b) Lib. U. K. "The Horse," 
 
 {x) Ibid. 338. 381. 
 
 (V) See Lib. U. K. "The Horse," (c) Kiddell v. Burnard, 9 M. & W. 
 
 App. Ed. 1862, 521. G70. 
 
 {:) Ibid. 93. {il) Farcy, ante, p. 88. 
 
110 
 
 WHAT DISEASES CONSTITLTE UNSOUNDNESS OR VICE. 
 
 Weaving'. 
 
 Wlieezliio". 
 
 AVliistling'. 
 
 Wilrem- 
 haunch. 
 
 "Wind- galls. 
 
 can never stand miicli work. They will be subject to 
 Corns {('), 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 injury of the pastern, the 
 fetlock, and the flexor tendon (/). When it is the result 
 of disease, it is such an alteration of structure as constitutes 
 UnsoKudiicss. 
 
 Wearing 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 ^\^\\. seldom 
 carry flesh, or be safe to ride or drive {g). 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 {It), caused by the lodgment of some mucous 
 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 (?), which is confined to the in- 
 creased breathing during considerable exertion (/r). It is 
 an U) isoundn ess ( /) . 
 
 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 Wliistler very speedily becomes distressed {m) . This 
 is an Unsoundness {n). 
 
 WilremJiauneh 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 Unsoundness 
 unless they cause lameness, or perhaps when they are so 
 
 {e) Corns, ante, p. 81. [l) Onsloiv v. Eames, 2 Stark. N. 
 
 (/) Lib. U. K. "The Horse," P. C. 81. 
 
 310. (w) Lib. U. K. "The Horse," 
 
 {g) Ibid. 345. 196. 
 
 (//) Thick-wind, ante, p. 107. (w) Onshiu v. Eames, 2 Stark. N. 
 
 (i) Roaring, ante, p. 99. P. C. 81. 
 
 (/.) Lib. U. K. "The Horse," (o) String-halt, ante, p. 105. 
 
 190. [p) Thoroughpin, ante, p. 108. 
 
DISEASES, DEFECTS, ETC. Ill 
 
 large and numerous as to make it likely tliey will soon 
 cause it (^). 
 
 In an action wliicli was brought on the warranty of a 
 Horse, the breach of which was Wind-galls, a verdict 
 was found for the plaintiff (>•). The Wiiul-fjalls 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-sucMng bears a close analogy to Crib-biting (s) ; it Wind-suck- 
 arises from the same causes, and the same results follow, ^^s- 
 The Horse stands with his neck bent, his head drawn in- 
 Avard, his lips alternately a little opened and then closed, 
 and a noise is heard as if he were sucking [t) . It is a Vice. 
 
 In some few instances the second teeth do not rise im- Wolf's tootli. 
 mediately under the temporary or middle teeth, but some- 
 what by their side. The tootli is pushed out of its place 
 to the fore part of the first grinder, and remains for a con- 
 siderable time under the name of a Wolfs tooth, causing 
 swelling and soreness of the gums, and frequently wound- 
 ing the cheeks. This is easily remedied by drawing the 
 tooth (?^), and though an Unsoundness while it lasts, no 
 dispute would be likely to arise in practice respecting it. 
 
 The Yellows, otherwise the Jaundice, is the introduction Yellows. 
 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 ex- 
 hibits itself by a yellowness of the eyes and mouth, and 
 any part of the skin not covered with hair (.r) . It is, while 
 it lasts, an Unsoundness. 
 
 {q) Lib. U. K. "The Horse," 340. 
 
 366. (k) Lib. U. K. "The Horse," 
 
 (>•) Stziart V. JFiUcins, Doug. 18. 140. See, however, Lib. U. K. 
 
 14 Crib-biting, ante, p. 84. App. Ed. 1862, 487. 
 
 (0 Lib. U. K. "The Horse," {x) Ibid. 213. 
 
( 112 ) 
 
 CHAPTER V. 
 
 WARRANTY ; SALE AND WARRANTY BY AN AGENT ; AND 
 PATENT DEFECTS. 
 
 Waeeanty. 
 
 Waryantij required in biii/biff a 
 Horse 113 
 
 Warranty of Title id. 
 
 Not implied by Law of England . id. 
 
 Ilmv it may be inferred id. 
 
 Rule of Law 11-1 
 
 Where the Consideration fails .. id. 
 
 3Iode of trying a disputed Title id. 
 
 Reason for requiring a Warranty 115 
 
 Layer should protect himself by 
 one 116 
 
 What constitutes a Warranty . . id. 
 
 Article named in a Sold Note . , id. 
 
 Buyer entitled to Article com- 
 mercially knoicn by the Name. id. 
 
 A Sound Price not tantamount 
 to a Warranty 117 
 
 A General Warranty id. 
 
 A Qualified Warranty id. 
 
 A Limited Warranty id. 
 
 A Special Warranty 118 
 
 A Written Warranty id. 
 
 A Special Agreement id. 
 
 Form of Warranty id. 
 
 Effect of a Written Warranty., id. 
 
 Warranty may be gathered from 
 Letters 119 
 
 The Parties are bound by it alone id. 
 
 It cannot be extended by Lmplica- 
 tion id. 
 
 A Warranty is Several though 
 the Contract be entire id. 
 
 A Warranty applies to the Time 
 of Sale id. 
 
 Warranting a future Event .... 120 
 
 Buying for a particular Purpose id. 
 
 Must be reasonably Jit for the 
 Purpose id. 
 
 A Carriage Horse 121 
 
 Latent undiscoverable Defects , . id. 
 
 Quiet in Harness id. 
 
 Unfitness must be clearly proved. 122 
 
 General Rule id. 
 
 Warrantor'' s Liability 123 
 
 Sale avoided by Fraud id. 
 
 Sale and Waeeanty by an Agent. 
 
 An Agent cannot delegate his 
 Authority 123 
 
 Nor exceed it 124 
 
 Agency determines by PrincipaVs 
 Death id. 
 
 Difference between a remunerated 
 and an unremunerated Agent . id. 
 
 Agent acting ivithout proper Au- 
 thority id. 
 
 His Personal Responsibility .... id. 
 
 Where he cannot be sued on the 
 Contract id. 
 
 But is liable in Damages 125 
 
 Principal answerable for his 
 Fraud id. 
 
 Misrepresentation collateral to 
 the Contract id. 
 
 Damage caused by his Negligence id. 
 
 Undisclosed Principal id. 
 
 Person described as Agent may be 
 proved to be Principal 12G 
 
 Principal cannot be proved to be 
 an Agent 127 
 
 Their respective Rights of Action 
 on a Contract id. 
 
 Warranty by a Servant as Spe- 
 cial Agent id. 
 
 Warranty by a Servant as Gene- 
 ral Agent 128 
 
 Evidence of Usage not to icar- 
 rant 130 
 
 Warranty by a Servant after 
 Sale id. 
 
 Warranty by a Servant forbid to 
 give one id. 
 
 Warranty by a Stranger forbid 
 to give one 131 
 
 Master unwilling to stand by his 
 Servant's Warranty id. 
 
 Rule as to a Servant binding his 
 Master 132 
 
 Warranty by a Person entrusted 
 to deliver id. 
 
 Agent employed to take a War- 
 ranty id. 
 
 Action against a pretended Agent id. 
 
WARRANTY. 113 
 
 Patent Defects. 
 
 Kot covered hy a Warranty .... 133 
 
 In xchat they consist id. 
 
 How far the loss of an Eye is 
 
 patent id. 
 
 " Briffht JEye" 134 
 
 Convexity of Eye id. 
 
 Where the Buyer knows the De- 
 fect 134 
 
 Where Defects are discussed .... id. 
 Conclusion to be drawn from the 
 
 Cases 136 
 
 Suspected Defects 137 
 
 Furchase without Inspection .... id. 
 
 WARRANTY. 
 
 In buying a Horse, as well as in making an Exchange, Warranty 
 the maxim caveat emptor is the Rule of law, and a party required m 
 who has got an unsound Horse has in neither case any HOTget 
 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 ap- 
 pears 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 re- 
 cover as against the seller, as it must be assumed that he 
 purchased the animal at a cheaper rate {a). 
 
 According to the Roman law ib), and in France (c) and Warranty of 
 Scotland, and partially in America {d), there is always an *^*^^- 
 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- Not implied 
 ranty of title in the contract of sale of a personal chattel ; ^a^i^d^ 
 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 ; and the ques- 
 tion in each case, where there is no Warranty in express 
 terms, will be, whether there are such circumstances as to 
 be equivalent to such a Warranty (e). 
 
 But a wide construction has been put upon " the cir- How it may 
 cumstances which may be held to be equivalent to an ^^ inferred, 
 express Warranty." Indeed Lord Campbell has said, that 
 if by the law of England the maxim caveat emptor applies 
 on a sale of personal property, the exceptions have well- 
 nigh eaten up the rule (/'). And this dictum was quoted 
 with approval by Erie, C. J., in Eicholz v. Bannister (g). 
 Thus, it seems that executory contracts must be brought 
 
 («) Jones Y. Bright, 3 M. & P. 175. {e) Per Parke, B., Morley v. At- 
 
 [b] Domat, book 1, tit. 2, s. 2, tenborough, 18 L. J., Ex. 148 ; 
 art. 3. Eicholz v. Bannister, 11 Jur., N. S. 
 
 (c) Code Civil, chap. 4. s. 1, art. 15. 
 
 1603. (/) Sims V. Marryat, 17 Q. B. 
 
 ((/) 1 John's Rep. 274 (Amer.) ; 281. 
 
 Story on Sales, 4th Ed. 367. [g) 11 Jur., N. S. 15. 
 
 O. I 
 
114 warranty; sale axd warranty by agent, etc. 
 
 witliin the excoption {//). And a Warranty may be in- 
 ferred 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 understood 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 (/). 
 
 Rule of la-n-. Nevertheless it must still be taken as a rule of law, 
 that, with regard to the sale of ascertained chattels, there 
 is not any implied warranty of either title or quality, 
 unless there are some circumstances beyond the mere 
 fact of a sale, from which it may be imj)lied (A-). The 
 case of Morley v. Attenhorough (J), recognized and affirmed 
 by subsequent decisions (/;?), establishes the rule with re- 
 spect to title; and with respect to quality it is no less firmly 
 established {n). And in a more recent case (o) Mr. Baron 
 Martin said, " That in his view of the law, where there is 
 no Warranty, the rule caveat emptor applies to sales, and 
 except there be deceit, either by a fraudulent concealment 
 or fraudulent misrepresentation, no action for Unsoundness 
 lies by the vendee against the vendor upon the sale of a 
 Horse or other animal." 
 
 Where the If it be shown that it was the understanding of both 
 
 faiir'^^^^^^^^ parties, that the bargain should be put an end to if the pur- 
 chaser should not have a good title, it would seem that the 
 purchaser may recover back his money as on a consideration 
 which has failed (/). 
 
 Mode of try- A dispute respecting the title of different parties to a 
 
 mg 
 title 
 
 a disputed j£orse may be decided by an interpleader issue. Thus, a 
 
 {h) Morley V. Attcuhorouyh, 18 but ouly to transfer such interest 
 
 L. J., Ex. 148 ; EichoJz v. Bcoi- as he might have in the chattel 
 
 nister, 11 Jur., N. S. lo. And sold." Aid see Campbell on Sales, 
 
 Mr. Benjamin, in his work on Sales 328. 
 
 (2nd ed. pp. 522, .523), goes still fur- (/) Sbn!< \. Marryaf, 17 Q. B. 281. 
 
 ther and says: "The exceptions (A) i^ff^/ v. C'oHr/«-, 2 C. B., N. S. 
 
 have become the rule, and the old 40 ; Baguelcy v. Haivley, L. R., 2 
 
 rule has dwindled into the excep- C. P. 625; 36 L. J., C. P. 328. 
 
 tion, by reason, as Lord Campbell See Broom's Maxims, 4th Ed. 768. 
 
 said, of its having been well-nigh (/) Morley v. Attcnborough, 18 L. 
 
 eaten away;" and then proceeds J., Ex. 148; Eichohy. Bannister, 
 
 to lay do-rni the following rule as in 11 Jur., N. S. 15. 
 
 accordance with these cases, viz. : (»i) Hall v. Cornier, 2 C. B., N". 
 
 "A sale of personal chattels implies S. 40. See Broom's Maxims, 4th 
 
 an affirmation by the vendor that Ed. 768. 
 
 the chattel is his, and, therefore, («) Chanter v. Hopkins, 4 M. & 
 
 he warrants the title, unless it be W. 399. 
 
 shown by the facts and circum- (o) Hill v. Balls, 2 H. & N. 304. 
 
 stances of the .sale that the vendor See also Oshorne v. Hart, 23 L. T., 
 
 did not intend to assert ownership, N. S. 851 ; 19 W. R. 331 — Ex. 
 
WAKKAXTY. lie 
 
 question was tried wliether 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 a fi. fa., conse- 
 quent on a judgment obtained by the defendant against a 
 gentleman named Carew, and the Jury found a verdict for 
 the plaintiff (7;). 
 
 But an interpleader order will not be granted where the 
 respective claims are not co-extensive. Thus, where the 
 defendant, the proprietor of a Horse Repository, sold there, 
 by public auction, a Horse to the plaintiff, warranted quiet 
 to ride and in harness, but subject to a condition by which, 
 if considered by the buyer incapable of working from any 
 infirmity or disease, it might be returned on the second 
 day after the sale, and the matter determined by veterinary 
 surgeons according to the terms provided for in such con- 
 dition ; and the horse was accordingly returned by the 
 plaintiff, who demanded to have back the money he had 
 paid for the purchase, and this being refused he brought 
 an action against the defendant for breach of warranty ; 
 and the person who had placed the Horse at the Repository 
 for sale claimed of the defendant the proceeds of the sale, 
 stating that the Horse had left the Repository perfectly 
 sound. It was held that the defendant was not entitled to 
 an interpleader order {q). 
 
 The reason laid down for requiring a Warranty of Reason for 
 soundness in buying a Horse is, that it is well known ^umng a 
 they have secret maladies which cannot be discovered ^ ^' 
 
 by the usual trials and inspections, and that a Warranty 
 prevents the piu'chaser 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 (/•). 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 
 knowledge of the vendor too, who ventures to buy a Horse 
 without a Warranty" (s). But the same, nnitatis mutandis, 
 may very justly be said of a person who ventures to give 
 a Warranty on the sale of a Horse. 
 
 {p) Ford V. Sykes, before Lord (r) 1 Rol. Abr. 90 ; Jones v. 
 
 Campbell, C. J., Cambridge Spring Bright^ 5 Bing. 544. 
 
 Assizes, 1853. (s) Lib. U. K. "The Horse," 
 
 {q) Wright v. Freeman, 48 L. J., 368. 
 
 C. P. 276; 40 L. T., N. S. 134. 
 
 i2 
 
116 
 
 WARRANTY ; SALE AND WARRANTY BY AGENT, ETC. 
 
 Buyer should 
 protect him- 
 self by one. 
 
 What con- 
 stitutes a 
 Warranty. 
 
 Article named 
 inaSoldNote. 
 
 Buyer entitled 
 to article com- 
 mercially 
 known by the 
 name. 
 
 If a buyer, however, means to protects himself from 
 hidden defects, he must take a Warranty, and he is not 
 protected otherwise, unless he can make out fraud [t) . 
 
 It is much better both for the buyer and seller when 
 the latter states whether he professes to warrant or not ; 
 because where nothing has been said on that point, a con- 
 siderable degree of doubt must frecjuently 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 Warranty were ever intended. 
 No particular words are necessary to constitute a War- 
 ranty ; if a man says, " This Horse is sound," that is a 
 Warranty {u) ; 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 (r). The general Rule laid down by Mr. 
 Justice Bayley is, that whatever the vendor represents at 
 the time of sale is a Warranty {cc). 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 
 Warranty (//) . 
 
 If an article sold is described, the description amounts 
 to a Warranty or a condition precedent that it shall be an 
 article of the kind described (s) . 
 
 Words, however, of expectation and estimate only do 
 not amount to a Warranty (a). 
 
 So it was held that a Sold Note amounted to a War- 
 ranty that the article delivered should be as named in the 
 note, the contract being a sale of a certain known article 
 of commerce {b). 
 
 And w^hen goods are sold under a certain denomination, 
 the buyer is entitled to have such goods delivered to him 
 as are commercially known under this denomination, 
 though he may have bought after inspection of the bulk, 
 and without Warranty (c). 
 
 {t) Ormrod v. Euth, 14 M. & W. 
 661. 
 
 [u) Per Best, C. J., Salmon v. 
 Ward, 2 C. &P. 211. 
 
 (i) Per Best, C. J., Jones v. 
 Brigld, 3 M. & P. 173. See also 
 RandaU v. Kcwson, L. R., 2 Q. B. 
 D. 102; 46 L. J., Q. B. 259; 36 
 L. T., N. S. 164 ; 25 W. R. 313— 
 C. A. 
 
 {x) Wood V. Smith, 4 C. & P. 45. 
 
 (y) Cave v. Cnhtun), 3 M. & R. 2. 
 
 [z) Bowes V. Shand, L. R., 2 App. 
 Cas. 455; 46 L. J., Q. B. 561. 
 
 (a) JiPConnel v. Murphy, L. R., 
 5 P. C. 203; 28 L. T., N. S. 713. 
 
 (i) Henderson v. Blahe, Q. B. 
 1852; 3M. Dig. 326. 
 
 (f) Joslinq V. Kingsford, 32 L. J., 
 C. P. 94. See also AUen v. Lahe, 
 18 Q. B. 560 ; Wieler v. Schilizzi, 
 17 C. B. 619; Carter v. Crick, 28 
 L. J., Ex. 238. 
 
WARRANTY. 117 
 
 There was at one time a general opinion that a Sound A sound price 
 price given for a Horse was tantamount to a Warrant y ^*^* tanta- 
 of Soundness ; but Lord Mansfield considered the doc- "Warranty, 
 trine to be so loose and unsatisfactory that he rejected it, 
 and laid down the following Rule : " There must either 
 be an crpress Warranty of Soundness, or Fraud in the 
 seller, to maintain an action" [d). 
 
 A General Warranty is an unconditional undertaking A General 
 that a Horse or any other article really is what the War- Warranty, 
 rantor professes it to be. 
 
 A Warranty may be either General or Qualified. If a A Qualified 
 person at the time of his selling a Horse say, " I never Warranty, 
 warrant, but he is sound so far as I knou;^' it is a Qualified 
 Warranty, and an action for breach of Warranty may be 
 maintained upon it by the purchaser, if it can be proved 
 that the seller kneu^ of the Unsoundness (e). 
 
 By the conditions of sale at Eepositories and public A Limited 
 Auctions, a specified short time is usually allowed, within Warranty. 
 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 warranty was 
 to last till the noon of the following day, when the sale 
 was to become complete, Mr. Justice Littledale said, " The 
 Warranty here was as if the vendor had said, ' after 
 twenty-four hours I do not warrant ;' such a stipulation is 
 not unreasonable" (/). 
 
 In the case of Chapman v. Gwyther {g) the seller of a 
 Horse signed the following Warranty : — 
 
 "June 5th, 1865. Mr. C. bought of Mr. G. G. a bay 
 Horse for ninety pounds. Warranted Sound. 
 
 £90. G. G. 
 
 " Warranted Sound for one month. — G. G." 
 
 The Court of Queen's Bench held that the latter words 
 limited the duration of the Warranty, and meant that the 
 Warranty was to continue in force for one month only ; 
 and that the complaint of Unsoundness must therefore be 
 made by the purchaser within one month of the sale. 
 
 The pm-chaser, however, may return the Horse at any 
 
 {(I) ParMnson v. Lee, 2 East, 323. and see Best v. Oshonie, 2 C. & P. 
 
 (e) Wood V. Smith, 4 C. & P. 45. 74; HinchcUffe y . Baru-icJc, L. R., 5 
 
 See also Pinder v. Button, 7 L. T., Ex. D. 177; 49 L. J., Ex. 495; 42 
 
 N. S. 269. L. T., N. S. 492. 
 
 (/) By water v. Richardson, 1 A. (c/) L. R,., 1 Q. V,. 4G3; 35 L. J 
 
 & E. 508 ; 5. C. 3 N. & M. 748 ; Q. B. 142 ; 14 L. T., N. S. 477. 
 
118 
 
 ■WARRANTY ; SALE AND WAKRAKTY BY AGENT, ETC. 
 
 A Special 
 Warranty. 
 
 A Written 
 Warranty. 
 
 A Special 
 Agreement. 
 
 Form of 
 Warranty. 
 
 Effect of a 
 
 Written 
 
 Warranty. 
 
 time within that specified in the Warranty, even though 
 he has notice of the breach of "Warranty before he removes 
 the Horse, and the Horse, through an accident, becomes 
 dejDreciated in value (//). 
 
 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 (/) ; or 
 expressly state what he warrants : as where a Mare was 
 waiTanted to be "a good hunter, and to have one 
 eye" (k). But where the purchaser requires the vendor 
 to be answerable for some defect, he should take a Special 
 Warranty against the effects which may be likely to pro- 
 ceed 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- 
 ness, but freedom from Vice, and also Quietness and Age, if 
 necessary. 
 
 Also any Special terms which may have been agreed 
 upon at the time of sale ; for instance, an agreement to take 
 back the Horse, in case he does not suit or is unsound, 
 should be made a part of the Written Warranty or Agree- 
 ment upon which the sale is effected {)n). 
 
 The following form of Receipt and Warranty will be 
 found, for general purposes, short and comprehensive : — 
 
 " Received of P. J. D. fifty pounds for a grey Gelding, 
 warranted only six j^ears old, Sound, free from Yice, 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 
 passed may sometimes be taken together as forming parcel 
 of the contract, though not alwaj's, because matter talked 
 of at the commencement of a bargain may be excluded by 
 
 (A) Ucacl V. Taitcrsall, L. E., 7 
 Ex. 7; 41 L. J., Ex. 4 ; 25 L. T., 
 N. S. 631 ; see also lUnclicllffe v. 
 Barwick, L. R., 5 Ex. D. 177; 49 
 L. J., Ex. 495; 42 L. T., N. S. 
 492 ; Elphick v. Barnes, L. E., 5 C. 
 P. D. 387; 49 L. J., C. V. GOS ; 2;i 
 W. R. 139. 
 
 (() Junca V. Cowley, 4 B. & C. 
 445 ; *S'. C. 6 D. & E. 533 ; and 
 Hemming v. Parrjf, 6 C. & P. 580. 
 
 {k) Higgs v. ThraJe, before Chief 
 Baron Pollock, Feb. 18, 1850. 
 
 (/) See post, p. 138. 
 
 <„>) Bin/ne y. Whale, 7 East, 274. 
 
WARRANTY. 119 
 
 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 {n). 
 
 A Warranty may be gathered from Letters which have Warranty 
 passed between the parties. But where it is sought to ™^Z^!^jjr. 
 import a Warranty into a contract for sale contained in Letter. ^^^ 
 Letters, which are ambiguous in their terms, it is competent 
 to the party soaght to be charged to give evidence of all 
 the surrounding facts and circumstances, for the purpose * 
 of showing that a Warranty v»^as not contemplated by the 
 parties (o). 
 
 The Parties are bound by the Written Warranty alone, The Parties 
 unless some Fraud can be shown ; and even if there be a are bound by 
 Eepresentation it does not avail. If a man brings me 
 a Horse, and makes any Eepresentation 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 (p). 
 
 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 
 ranty by implication, as the Maxim, Expression facit cessare 
 taciturn, applies to such case {q). 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 Warranty [q) . 
 
 When several Horses are sold at an entire price, and a A Warranty 
 Warranty is given as to all, the contract of sale is entire, ^^^^^^'^l 
 but the AVarranty is several (r). _ contract be 
 
 A Warranty only extends to the state of a particular entire, 
 commodity at the time of sale, unless the Warrantor ex- A Warranty 
 pressly fixes some future period to which he undertakes ^PP^^*^^ „*g *^® 
 to extend it (i). 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 icill be 
 
 («) Per Abbott, C. J., Kaln v. {q) Dic/:son v. Zizinia, 10 C. B. 
 
 Old, 2 B. & C. 627. 602 ; see also Anthony v. Hahtcad, 
 
 (o) Stttdey V. Bailey, 31 L. J., 37 L. T., N. S. 433. 
 
 Ex. 483. (/■) Sec Story on Sales, 191 ; 
 
 [p) Per Gibbs, J., I'kh'ii/iy v. Symonds v. Carr, 1 Camp. 361. 
 
 Bauson, 4 Taunt. 785. (>) Edoi y . Parlc'inson ,'Dovig.l^2 a.. 
 
120 
 
 WARRANTY ; SALE AND WARRANTY BY AGENT, ETC. 
 
 Warranting a 
 future Event. 
 
 Buying for a 
 
 particular 
 
 Purpose. 
 
 Must be 
 reasonably fit 
 fur the pur- 
 pose. 
 
 sound two years hence {t). 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 person only 
 warrants such a thing as was at the time of "Warranty, and 
 not a thing which is to come " (»). 
 
 There is no doubt, however, that a Future Event may 
 be warranted if there be an express undertaking to that 
 effect [x) ; and it makes no difference whether the War- 
 ranty be made at the time of sale or tjefore sale, so long 
 as the sale is made upon the faith of the Warranty (.?/), 
 For where a seller informed a buyer that one of two 
 Horses he was 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 disturb it or grant a new trial, 
 as the Warranty did not apply to the time of sale but to 
 a future period (2) . 
 
 On the sale of goods, if the parties agree to the specific 
 chattels, there is no implied Warranty on the part of the 
 seller that the goods shall be fit for the Particular pur- 
 pose {a) for which they are required, but only that they 
 must be merchantable, that is to say, fit for some pur- 
 pose {h). 
 
 If a person sell a commodity for a Particular purpose 
 he must be understood to warrant it reasomiljhj fit and 
 proper for such purpose {c). If a man sells a Horse 
 generally, he warrants no more than that it is a Horse ; 
 the 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 animal and sells, undertakes on every 
 principle of honesty that it is fit for the purpose indicated ; 
 but if it should turn out that the Horse w^as vicious, or 
 
 {t) 3 Bla. Com. 165. 
 (m) Tear Book, 9 Edw. 4, p. 6. 
 \x) Edenx. Parkinson, Doiig. 732a. 
 {y) Fasley v. Freeman, 3 T. R. 59. 
 (s) Liddard v. Kain, 9 Moore, 
 356 ; «S. C. 2 Bing. 183. 
 
 («) Per Parke, B., Sutton v. Tem- 
 ple, 12 M. & W. 55. 
 
 (/;) Per Best, C. 3.,JonesY. Bright, 
 5 Bing. 544. 
 
 ((■) Per Abbott, C. J., Gray v. 
 Cox, 4 B. & C. 115. 
 
WARRANTY. 121 
 
 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 affirmation that he 
 possesses those qualities (c) . 
 
 And in Chanter v. Ilophins {d), Mr. Baron Parke said, A Carriage 
 " Suppose a party offered to sell me a Horse of such a °^^^' 
 description as 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 sending that Horse" {c). 
 
 Nor is there any exception as to latent undiscoverable Latent undis- 
 defects. In Randall v. Neicson (/), the plaintiff ordered ^overable 
 and bought of the defendant, a coach-builder, a pole for 
 his carriage. The pole broke in use, and the Horses 
 became frightened and were injured. In an action for 
 the damage, the Jury found that the pole was not reason- 
 ably fit for the carriage, but that the defendant had been 
 guilty of no negligence. On motion by the defendant 
 for judgment, the Court ( g) ordered judgment to be 
 entered for the defendant, on the ground that the answers 
 of the Jury amounted to a finding of a latent defect in 
 the wood of the pole, which no care or skill could discover, 
 and that the principle of the decision in Readhead v. Mid- 
 land Rail. Co. (//) extended to the sale of an article for a 
 specific purpose. The plaintiff appealed. And the Court 
 of Appeal held that the limitation as to latent defects, 
 introduced by Readhead v. Midland Rail. Co. {i), does not 
 apply to the sale of a chattel, and that the plaintiff was 
 entitled to recover the value of the pole, and also for 
 damage to the Horses, if the Jury on a second trial should 
 be of opinion that the injury to the Horses was the natural 
 consequence of the defect in the pole. 
 
 Proof that a Horse is a good drawer only will not Quiet in 
 
 Harness. 
 
 (c) Per Best, C. J., Jones v. 164. 
 Bright, 5 Bing. 544 ; -S. C. 3 M. & (y) Blackburn and Lush, JJ. 
 
 P. 162 ; see also Jones v. Just, L. R., \h) L. R., 4 Q. B. 379. 
 
 3 Q. B. 197; 37 L. J., Q. B. 89 ; (t) L. E., 4 Q. B. 379. This 
 
 18 L. T., N. S. 208. case decided that the contract made 
 
 {(l) 4 M. & W. 406. by a carrier of passengers is to take 
 
 [e) Chanter v. Hopkins, 4 M. & due care to carry the passengers 
 
 W. 406. See also Chalmers v. safely, and is not a warranty that 
 
 Harding, 17 L. T., N. S. 571. the carriage in which he travels 
 
 (/■) L. R., 2 Q. B. D. 102 ; 46 shall be in all respects perfect for 
 
 L. J., Q. B. 259 ; 36 L. T., N. S. its purpose. 
 
122 
 
 warranty; sale and warraniy v.y ag?:nt, etc. 
 
 Unfitness 
 must be 
 clearly 
 proved. 
 
 General rule. 
 
 satisfy a Warranty that he is " a good drawer and pulls 
 quietly in harness." And the Coiu-t of King's Bench 
 held that it was quite clear these were convertible terms, 
 because no Horse can be said to be a good dratcer if he will 
 not pull quietly in harness, and therefore proof that he is 
 merely a good puller will not satisfy the Warranty ; the 
 word good must mean " good" in all particulars (A-). And 
 where a Horse was warranted " sound and quiet in all 
 respects," Lord Abinger, 0. B.,held it to include the being 
 quiet in harness (/). But where the Warranty was as 
 follows, viz., " Eeceived from A. the sum of 00/. for a 
 black Horse rising five years, quiet to ride and drive, and 
 warranted sound up to this date, or subject to the examina- 
 tion of a veterinary surgeon;" it was held that there was 
 no Warranty that the Horse was quiet to ride and drive {m) . 
 
 But in setting up a Breach of such a Warranty, it 
 must be clearly proved that the Horse at the time of sale 
 was unfit for the purpose for which ho was bought ; and 
 if he has gone quietly with persons of ordinary skill, 
 there will be a strong presumption that he answers his 
 Warranty. In the following case it appeared that a 
 Horse warranted " a thoroughbroke Horse for a Gig," 
 kicked and broke the Gig, &c. the first time he was 
 driven by the pui"chaser. This was, however, two months 
 after sale, but in the meantime other persons had driven 
 him, and he had always answered his Warranty. It was 
 decided that this was no breach, because as the Horse had 
 previously behaved as he had been warranted, his bad 
 conduct must be attributed and have been owing to the 
 purchaser's want of skill in driving (n). And in the case 
 of Buckingham v. Reeve, Pollock, C. B., said, " A Horse 
 put into a new harness and an unaccustomed carriage once 
 or twice might kick, and yet be deserving of a Warranty 
 of being quiet in harness" {u). 
 
 The general rule, then, is this : — Where the purchase 
 is of a defined and well-known article, the vendor per- 
 forms his part of the contract by sending that article, 
 and it is the vendee's concern, whether it answers the 
 j)urpose for which he wanted to use it or not. And if 
 a man purchase goods of a tradesman, without in any way 
 
 (^■) Colthercl v. Puncheon, 2 D. & T., N. S. 433. 
 
 R. 10. («) Geddes v. Pennington, 5 Dow, 
 
 [I) Smith V. Parsons, 8 C. & P. 164. 
 
 199. (o) Buckingham v. Reeve, N. P. 
 
 [ill) A/'fhoug V. Enhtcad, 37 L. Ex. Dec. 1, 1857. 
 
WAKHANTY. 123 
 
 relying upon the skill and judgment of the vendor, the 
 vendor is not responsible for their turning out contrary to 
 his expectation. But if the tradesman is informed at the 
 time that the order is given of the purpose for which the 
 article is wanted, and the buyer relies upon the seller's 
 judgment, the seller impliedly warrants that the thing fur- 
 nished shall be reasonably fit and proper for the purpose 
 for which it is required ( 7;) ; and it seems that the liability 
 of the vendor in this latter case is the same, whether he be 
 also the manufacturer of the article or not, and whether 
 the vendee has or has not had an opportunity of inspecting 
 the goods purchased ; provided the defect be one which 
 cannot be discovered on inspection, but only on trial [p). 
 
 In all cases of Warranty as to the quality of the thing Warrantor's 
 sold, as, for instance, where a Horse is warranted sound or l^^tiility. 
 the like, the Warrantor undertakes that it is true at the 
 time of making it ; and the law annexes a tacit contract 
 that if it be otherwise than warranted, the vendor shall 
 make compensation to the buyer (y) ; and the seller will be 
 liable for any latent defect, according to the old law con- 
 cerning Warranties (/•), that is, as Lord Mansfield laid 
 down, for all faults, known or unknown to the seller (s), 
 inconsistent with the Warranty given. 
 
 But where a Horse is sold with a Warranty, any Fraud Sale avoided 
 at the time of sale will avoid the sale, though it is not on -^ ^^aud. 
 any point included in the Warranty {t). A sale, however, 
 is not avoided by some immaterial Representation in the 
 Warranty proving untrue. For Lord Eldon, in delivering 
 Judgment in the ease of an appeal to the House of Lords, 
 held, where a Horse was sold under a Warranty of Sound- 
 ness, but with a misrepresentation as to the place from 
 which he was brought, " that if the Warranty was answered, 
 a misrepresentation as to the place from which the Horse 
 Avas procured would not suffice to set aside the sale" [u). 
 
 SALE AND WARRANTY BY AN AGENT. 
 
 An Agent is always incompetent, without special autho- An Agent 
 rity for that purpose, to appoint another person to act in cannot dele- 
 
 [p) Chit, on Contr., Uth ed. (/■) 2'(»-A-e/iso>i v. Zt-e, 2 East, 321. ^' 
 
 417; BiggcY. Farkinson, 31 L. J., {s) Stuart \. TFilkins, Doug. 19. 
 
 Ex. 301, 303; 3Iallan v. Ilaclloff, {t) Steivard v. Coesvclt, 1 C. & P. 
 
 5 N. R. 54. 23. 
 
 {q) Archbold's N. P. 40; Fiehler (u) Geddcs v. Fennington, 5 Dow, 
 
 V. SlaH-in, 1 H. Bla. 17. 163. 
 
124 
 
 warranty; sale and warranty by agent, etc. 
 
 Nor exceed it. 
 
 Agency de- 
 termines by 
 Principal's 
 Death. 
 
 Difference 
 between a re- 
 munerated 
 and an un- 
 remnnerated 
 Agent. 
 
 Agent acting 
 ■without 
 proper autho- 
 rity. 
 
 His Personal 
 responsibility. 
 
 Where he 
 cannot be 
 sued on the 
 Contract. 
 
 his stead, the Maxim of the law being, Delegatus non potest 
 delegare {x) . 
 
 An Agent employed for a particular pm'pose has no 
 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 another (//) . 
 
 An Agency determines ipso facto by the death of the 
 Principal, and is also capable of being revoked by him in 
 his lifetime, with as little ceremony as it was created (s) . 
 
 There is a difference between the Principal's rights 
 against a remunerated and against an unremunerated 
 Agent. The former, having once engaged, may be com- 
 pelled to proceed to the task which he has undertaken ; 
 the latter cannot, for his promise to do so being induced 
 by no consideration, the Pule, Ex niido p>acto non oritur 
 actio, applies. But if he do commence his task, and after- 
 wards be guilty of misconduct in performing it, he will, 
 though unremunerated, be liable for the damage so occa- 
 sioned ; since by entering upon the business, he has pre- 
 vented the employment of some better qualified person [a) . 
 
 Wherever a party undertakes to do any act as the Agent 
 of another, if he does not possess any authority from the 
 Principal, and the other does not know it, or if he exceeds 
 the authority delegated to him, he will be personally 
 responsible to the person with whom he is dealing, for or 
 on account of the Principal {Ij) . 
 
 If the Agent contracts in such a form as to make him- 
 self personally responsible, he cannot afterwards, whether 
 his Principal were or were not known at the time of the 
 contract, relieve himself from that responsibility [c) . And 
 where a contract is signed by one who professes to be sign- 
 ing "as Agent," but w^ho has no Principal existing at the 
 time, and the contract would be wholly inoperative unless 
 binding upon the person who signed it, he is personally 
 liable on it {cl). 
 
 Where it clearly and expressly appears, that a person 
 really acting as Agent fairly contracts as such Agent in 
 the name of his Principal, and professes to make that 
 
 (.r) 2 Steph. Com. 59. 
 
 (y) Thompson Y. Davenport, 9 B. 
 & C. 78. 
 
 (;) 2 Steph. Com. 57. 
 
 {a) See Smith's Merc. Law, 112; 
 £atfe V. JFest, 22 L. J., C. P. 176. 
 
 (b) Story's Commentaries, 226 ; 
 Harper v. Williams, 4 Q. B. 232. 
 
 ((•) Uiggins v. Senior, 8 M. & W. 
 845. 
 
 [(1) Kelner v. Baxter, L. R., 2 
 C. P. 174; 36 L. J., C. P. 94. 
 
SALE AND WAllRANTY BY AN AGENT. 125 
 
 Principal liable, the Agent cannot bo sued upon the 
 contract (e). 
 
 But he may be sued so as to make him liable in But is liable 
 Damages, for the loss sustained by the person with whom ^'^ damages. 
 he has entered into the contract (c). 
 
 The Rule of law is, that, if an Agent is guilty of fraud Principal an- 
 in transacting his Principal's business, the Principal is hiTrraud 
 responsible (/) ; but the Agent must be acting within the 
 scope of his authority and in the course of his employ- 
 ment {g). 
 
 Nor is there any difference in its effect between a mis- Misrepresen- 
 representation made by an Agent, which is collateral to tation coi- 
 the contract, and one which is embodied in the contract, contract" 
 the fraud of the Agent in either case, if committed in the 
 course of his employment, rendering the contract voidable 
 as against the Principal, without its being shown that he 
 was privy to it (A). 
 
 A master sent his Servant with a Horse to a Fan-, at Damas-e 
 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 {i). 
 
 If a person sells goods, supposing at the time of the con- Undisclosed 
 tract that he is dealing with a Principal, but afterwards Principal, 
 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 Prin- 
 
 (e) Lewis v. Nicholson, 21 L. J., Stock Bank, L. E., 2 Ex. 259, 265 ; 
 
 Q. B. 316. Swift V. Winterbotham, L. R., 8 
 
 (/) See per Parke, B., Murray Q. B. 244, 254; Mackay v. Com- 
 
 V. Mann, 2 Ex. 539 ; Cornfoot v. mercial Bank of New Brunswick, 
 
 Fowke, 6 M. & W. 358; MackayY. L. R., 5 P. C. 394, 411, 412; 43 
 
 Commercial Bank of New Briinsivick, L. J., P. C. 31; Chit. Contr. 10th 
 
 L. R., 5 P. C. 394 ; 43 L. J., P. C. ed. 627 ; and see Swire v. Francis, 
 
 31. L. R., 3 App. Cas. 106; 47 L. J., 
 
 [g) Coleman v. Riches, 16 C. B. P. C. 18 ; IFeir v. Barnett, L. R., 
 
 104 ; Udell v. Atherton, 7 H. & N. 3 Ex. D. 32. 
 172. (») Balrdv. Graham, 14 Court of 
 
 (/() Barwiek v. English Joint Sess. (Sco.) 615. 
 
126 • WARRANTY ; SALE AND WARRANTY B\ AGENT, ETC. 
 
 cipal ; subject, however, to this qualification, that the state 
 of the account between the Principal and the Agent is not 
 altered to the prejudice of the Principal (/>•). So that a 
 vendor, who has given credit to an Agent, believing hinj to 
 be the Principal, cannot recover against the undisclosed 
 Principal, if the Principal has bond fide paid the Agent at 
 a time when the vendor still gave credit to the Agent and 
 knew of no one else as a 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 
 notwithstanding all that knowledge chooses to make the 
 Agent his debtor, then, according to the cases of Addison 
 V, Gandaspqni [m) and Paterson v. Gandascqui («) 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 choosing between the 
 one and the other" (o). 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 (o). The 
 seller, however, must make his election within a reasonable 
 time. Accordingly, when nine months had elapsed after 
 the discovery of the Principal, and no election had been 
 made by the seller, it was held that he could not recover [p). 
 The insertion of the Agent's name alone in the contract, 
 though the Principal is disclosed at the time, and the sub- 
 sequent demand of payment from the Agent, does not 
 necessarily amount to an election to give credit to the 
 Agent, and to him alone, but the principal may be sued {q). 
 The question whether credit was given to the Agent or to 
 the Principal being for the jury, for whose guidance in 
 resolving it, evidence of custom and usage will be admis- 
 sible (r). 
 Person Where a person describes himself in a written instru- 
 
 A^c^ent'may^e ^^^^ ^^ ^^® Agent of an unnamed Principal, it is com- 
 
 proved to be 
 
 ^ ' (/■) Thompson \. Davenport, 9 B. (o) Thompson y. Davenport, 9 B. 
 
 6 C. 86, per Lord Tenterdcn, C. J. & C. 86. 
 
 (/) Armstrong v. Stokes, L. E,., {p) Smethurst v. Mitchell, 28 
 
 7 Q. B. 598 ; 41 L. J., Q. B. 253 ; L. J., Q. B. 241. 
 
 26 L. T.,N. S. 872; and see Evans (r/) Calder v. Dohell, L. E., 6 
 
 on Agency, 442. C. P. (Ex. Ch.) 486.; 40 L. J., 
 
 (;«) Addison v. Gandasequi, 4 C. P. 224. 
 
 Taunt. 574. {r) Curtis v. Williamson, L. R., 
 
 («) Paterson v. Gandasequi, 15 10 Q. B. 57, 59; 44 L. J., Q. B. 
 
 East, G9. 27; 31 L. T., N. S. 078. 
 
SALE AND WARRANTY RY AN AGENT. 127 
 
 petent for the party with wliom he contracts to show that, 
 although described as Agent, he is in fact the Principal (s) . 
 But there is a distinction between cases where an Agent in 
 effecting a contract for the purchase of goods does not dis- 
 close the existence of a Principal at all and cases where he 
 discloses that he has a Principal but does not give his 
 name ; and it has been held by Bowen, J., on further con- 
 sideration, that in the latter class of cases the vendor may 
 have recourse to the Principal though he has bond fide paid 
 the Agent for the goods, unless there has been such con- 
 duct on the vendor's part, e. g. delay in applying to the 
 Principal, as might justify the Principal in concluding that 
 the vendor was not looking to his credit but to that of the 
 Agent it) . 
 
 Although the Pule of law is, that where a contract is PiinGipal 
 made by an Agent, the Principal may come in and take f^^^^o* be 
 the benefit of it, that doctrine cannot be applied where an^Ao-eut. 
 the Agent contracts as Principal (?r). Thus, Lord Ellen- 
 borough said, " If one partner makes a contract in his in- 
 dividual capacity, and the other partners are willing to 
 take the benefit of it, they mAist be content to do so, 
 according to the mode in which the contract was made" {x). 
 Thus, in Assumpsit on a charter-party executed, 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 was not admissible to show that such person 
 contracted merely as the plaintiff's Agent {y). 
 
 The Eule of law is, that the agent who makes the con- Their respeo- 
 tract may bring an action on the contract in respect of his artion^n*a°* 
 privity, and the Principal in respect of his interest {z) . Contract. 
 
 If the Agent is appointed only for a particular purpose, "Warranty by 
 and is invested with limited powers, or, in other words, is Servant as 
 a special Agent ; then it is the duty of persons dealing T^gn/ 
 with such Agent to ascertain the extent of his authority ; 
 and the Principal will not be bound by any act of the 
 Agent not warranted expressly by, or by fair and neces- 
 sary implication from, the terms of the authority delegated 
 
 («) Can- V. Jackson, 7 Ex. 382. 117. 
 See also Pake v. Walker, L. R., 5 («) Humble v. Hunter, 12 Q. B. 
 
 Ex. 173; 39 L. J., Ex. 109; 22 315. 
 L. T., N. S. 547. (x) Lucas v. Be la Com; 1 M. & 
 
 (0 Irvhie ^ Co. v. Watson S; Sons, S. 249. 
 L. R., 5 Q. B. T>. 102; 49 L. J., (y) Hi(mh?c v. Hunter, 12 Q. B. 
 
 Q. B. 239; 41 L. T., N. S. 51— 310. 
 Bowen, J. Affirmed W. N. 1880, [z) Si/kes v. OiJes, 5 M. & W. 650, 
 
128 
 
 warranty; sale and warranty by agent, etc. 
 
 Warranty by 
 a Servant aa 
 general 
 Asrent. 
 
 to him (a). Therefore the Servant of a private owner 
 entrusted to sell a Horse on one particular occasion, not 
 at a fair or public mart, is not by law authorized to bind 
 his master by a Warranty ; and the buyer who takes such 
 a Warranty, takes it at the risk of being able to prove 
 that the Servant had in fact his master's authority to give 
 it. But the existence of this authority may be inferred ; 
 c. g., it was held in an action for the breach of a Warranty 
 on the sale of a Horse by the Servant of a private owner, 
 that a letter from the plaintiff's attorney to the defendant 
 referring to the alleged Warranty and averring a breach 
 of it, and an answer from the defendant merely denying 
 the breach of it, afforded evidence whence the Jury were 
 justified in finding that the Servant had authority in fact 
 to warrant (b). 
 
 It is still an undecided question whether a special 
 Agent entrusted with the sale of a Horse in a fair or other 
 public mart, where stranger meets stranger, and the usual 
 course of business is for the person in possession of the 
 Horse, and appearing to be the owner, to have all the 
 powers of an owner in respect of the sale, is or is not 
 authorized to bind his master by a Warranty (c). 
 
 But wherever a general authority is given by a Prin- 
 cipal to an Agent, this implies and includes a right to do 
 all subordinate acts incident to and necessary for the ex- 
 ecution of that authority ; then, if notice is not given to 
 the person with whom the Agent deals that the Principal 
 has limited his authority, the Principal is bound (d). In 
 accordance then with this principle of law a Servant em- 
 ployed by a Horsedealer as his general Agent to carry on 
 his business, has an implied authority to warrant the 
 Horses sold by him for his Principal as sound without any 
 special authority for that purpose. And where a War- 
 ranty has been so given. Lord Ellenborough said, " If 
 the Servant was authorized to sell the Horse and to re- 
 ceive the stipulated price, I think he was incidentally 
 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 
 
 («) Chit. Contr. 11th Ed. 198. 
 
 (b) Miller v. Laivton, 15 C. B., 
 N. S. 834. 
 
 (c) Brady v. Todd, 9 C. B., N. S. 
 
 604. See also Miller v. Lawton, 15 
 C. B., N. S. 834. 
 
 {d) Per M. of K., CoUen v. 
 Gardner, 21 Beav. 543. 
 
SALE AND WARRANTY BY AN AGENT. 129 
 
 scope of his authority. This is the common and usual 
 manner in which the business is done, and the Agent must 
 be taken to be vested with powers to transact the business 
 with which he is entrusted in the common and usual 
 manner" {e). 
 
 The case of Howard v. Sheicard (/) very clearly illus- 
 trates the rule that the Agent or Servant of a Horsedealer 
 has an implied authority to bind his Principal or Master 
 by a Warranty. In that case it ajDpeared that the defen- 
 dant was a Horsedealer, and that in March, 1866, the 
 plaintiff, being at a riding-school, asked the proprietor " if 
 he knew of a horse that would be likely to suit him," and 
 that David Sheward, the brother of the defendant, who 
 happened to be present," and who was a Horsedealer, and 
 occasionally acted in the sale of Horses for the defendant, 
 said he thought the latter had one. After some conversa- 
 tion the Horse in question was brought to the riding- 
 school, and there ridden by the plaintiff and approved of 
 by him ; and David Sheward, in answer to questions as to 
 the character and soundness of the animal, said, "I'll gua- 
 rantee the Horse is sound." Ultimately the horse, — which 
 had at the plaintiff's request been previously examined by 
 a Veterinary Surgeon, who gave a certificate that it was 
 sound, — was purchased by the plaintiff for 315/., which 
 sum he paid to the defendant. The Horse, proving to be 
 unsound, was re-sold by the plaintiff, and this action was 
 brought to recover the dift'erence in price. On the part of 
 the defendant it was contended that the Servant of a 
 Horsedealer (assuming David Sheward to have been the 
 defendant's Servant for this purpose) has no implied 
 authority to warrant on his Master's behalf ; and evidence 
 was offered to show that it was not the custom with 
 Horsedealers to warrant where the Horse had been 
 examined by a competent Yeterinary Surgeon and pro- 
 noimced sound. Erie, 0. J., declined to receive the evi- 
 dence, and said that he should rule that David Sheward 
 had authority to warrant ; and the Jury, finding that he 
 had done so, and that the Horse was unsound, returned a 
 verdict for the plaintiff, damages 127/. 10s., and leave was 
 
 [e) Alexander v. Gibson, 2 Camp. Alexander v. Gibson must be taken 
 
 555. It appears to be taken foi* to he oYeT\raled.\)j Brady y. Todd [c), 
 
 granted in Chit. Contr. 7tli ed. 201, ante, and, therefore, such a reading 
 
 that the master in this case was a of the case does not affect the state- 
 
 Horsedealer, but it is not so ex- ment of the law in the text, 
 pressed in the Report. If the (/) L. R., 2 C. P. 148; 36 L. J., 
 
 master were not a Horsedealer, C. P. 42. 
 
 O. K 
 
130 
 
 warranty; sale and warranty by agent, etc. 
 
 E\idence of 
 ixsage not to 
 warrant. 
 
 Warranty by 
 a Servant 
 after Sale. 
 
 Warranty by 
 a Servant for- 
 bid to give 
 one. 
 
 reserved to tlie defendant to move to enter a nonsuit or 
 for a new trial. The rule was refused. And Willes, J., 
 in tlie course of Hs judgment, said, " David Sheward did 
 not negative the fact that this was an ordinary transaction 
 as between his brother and himself. It must be assumed, 
 therefore, that he negotiated the sale as his brother's 
 Servant or Agent. It was not an isolated instance, though 
 if it had been I do not conceive tliat it would have made 
 any difference ; but it appeared that David Sheward had 
 before assisted the defendant in the sale of Horses. Is it, 
 then, part of the business of a Horsedealer to warrant 
 Horses wliich he sells ? No doubt it is where a sufficient 
 price is given. Upon the whole I think there was clear 
 evidence of authority to warrant. It arose out of the 
 general character of the transaction, and any person 
 dealing with the Agent of a Horsedealer has a right to 
 assume it." 
 
 It was also decided in Howard v, Sheward (/) that evi- 
 dence of the alleged usage amongst Horsedealers not to 
 warrant where the Horse has been examined by a Yete- 
 rinary Surgeon, was not admissible to rebut the inference 
 of authority to warrant. 
 
 What an Agent says as a Warranty or Representation 
 at the time of Sale respecting the thing sold, is evidence 
 against the Principal ; but not what he has said at an- 
 other time, whether to the purchaser, or to a stranger, 
 unless it is a statement accompanying an act done in the 
 course of his agency {g). And Lord Ellenborough said, 
 " If the Servant is sent with a Horse by his master, and 
 which Horse is offered for sale, and gives the direction 
 respecting his sale, I think he thereby becomes the ac- 
 credited 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 acknowledgment 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 " (Ji). 
 
 If the Servant of a Horsedealer, with express directions 
 not to warrant do warrant, the master is bound ; because 
 
 (/) L. E., 2 C. P. 148. 5 Esp. 133 ; 1 Tayl. Evid. 4th ed. 
 
 {g) PerErskine, J., Allen v. Ben- 526. 
 Stone, 8 C. & P. 760 ; Peto v. Hague, [It) Helijer v. Eaiche, 5 Esp. 72. 
 
SALE AND WARRANTY BY AN AGENT. 131 
 
 the Servant having a general authority to sell, is in a 
 condition to warrant, and the master has not notified to 
 the world that the general authority is circumscribed (i). 
 And if' a person keeping Livery stables, and having a 
 Horse to sell, directs 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 conver- 
 sation between the master and Servant [k). And where 
 the owner of a Horse sold by a Lwery-sfable keeper with a 
 "Warranty went to the buyer and requested to have the 
 Horse back, stating that he did not authorize the War- 
 ranty 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 Warranty (/}. 
 
 But if the owner of a Horse were to send a Stranger WaiTautyby 
 to a Fair, with express directions not to warrant the ^ ^i^- w^^^- 
 Horse, and the latter acted contrary to the orders, the one. ° 
 pm'chaser 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 (ju). 
 
 But if the master, under such circumstances, is un- Master un- 
 willing to stand to the Warranty given by his Servant, ^^^^^?l\- 
 he is bound to take back the Horse and return the money Servants? 
 if it has been paid {m). And on this point Lord Abinger, Warranty. 
 C. B., said, "Put the ordinary case of a Servant employed 
 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 would have given for 
 an imsound Horse, when he discovers the Horse to be 
 unsound, is not entitled to rescind the contract ? This 
 would be to say, that though the Principal is not bound 
 by the false Pepresentation of an Agent, yet he is entitled 
 to take advantage of that false Representation, for the 
 purpose of obtaining a contract beneficial to himself, which 
 he could not have obtained without it («) . 
 
 (0 Per Bayley, J., Fichering v. (?) Best v. Osborne, 2 C. & P. 74. 
 
 Busk, 15 East, 45; Brady y. Todd, \ni) Per Ashurst, J., i^i^ww v.ifcur- 
 
 9 C. B., N. S. 604. rhon, 3 T. R. 761 ; and Scotland 
 
 {k) VerAahnrfit, J., Fcnnv. Rar- {Bank) v. Watson, I Dow, 45. 
 
 rison, 3 T. R. 760; see also Howard [n) Cornfoot v. Fowke, 6 M. (SbW. 
 
 T. SJieicard, L. R., 2 C. P. 148. 381. 
 
 k2 
 
132 
 
 wahranty; sale and warranty by agent, etc. 
 
 Rule as to a 
 Servant bind 
 ing hia 
 
 Master. 
 
 Warranty by 
 a Person en- 
 trusted to 
 deliver. 
 
 The general Eule tlien, in selling a Horse by a Servant 
 or Agent, appears to be the following : — That the master 
 or owner is bound by a Warranty given by his Servant 
 or Agent at the time of sale, icithout his consent, and 
 even against his express directions, if his Servant is his 
 general Agent to carry on his business. But the master 
 will not be bound by the "Warranty of the Servant, unless 
 the authority to give that Warranty can be proved either 
 to have been expressly or impliedly, i. e., by implication 
 of law, granted by the master. 
 
 Although a Warranty given by a person entrusted to 
 sell prima facie binds the Principal, the Warranty of a 
 person entrusted merely to deliver the thing sold is not 
 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 
 Servant, as no express authority to give the Warranty 
 was shown (o) . And where, on the purchase of a Horse, 
 the vendor had given a Warranty of Soundness generally, 
 and the Servant who "was sent with the receipt to the 
 Agent of the other party inserted at his request, but 
 without a special or general authority from his master, 
 " Warranted sound to the Eegiment," and the Horse 
 was sound when delivered in London, but was in a violent 
 Fever, of which he soon afterwards died, when he reached 
 Tewkesbury, where the Eegiment 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 {p). 
 
 If an Agent is employed to receive a Horse, pay for it, 
 ployed to take ^^-^^ ^g^j^Q r^ Warranty, he has no authority to receive it 
 a Warranty. ^.^^^^^^ ^ Warranty (<?) . 
 
 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 defendant 
 undertook that he was authorized by A. to purchase it on 
 
 Aarent em- 
 
 Action 
 ag-ainst a pre- 
 tended Agent 
 
 (o) Woodm V. Bnrford, 2 Cr. & 
 M. 391 ; S. C. 4 Tyrw. 264. 
 
 [p) Strode Y, Dt/so>i, 1 Smith, 400. 
 
 (q) Jordan v. Norton, 14 M. & W. 
 155. 
 
PATENT DEFECTS. 133 
 
 his behalf; that the plaintiff sent the Pony to the de- 
 fendant, and was willing to sell it to A., but that the 
 defendant had no authority from A. to purchase it {>•). 
 
 PATENT DEFECTS. 
 
 A general Warranty does not cover Patent defects, Not covered 
 being such as are obvious to the buyer. As if a Horse ^y ^ W*^" 
 warranted perfect be minus an Eye or a Tail (s), or a ^^"^ ^' 
 House warranted to be in perfect repair, be without Roof 
 or Windows (if), or, " as if one sells Purple to another, and 
 saith to him that this is Scarlet, this Warrant is to no pur- 
 pose, for that the other may perceive this, and this gives no 
 cause of action to him. To warrant a thing that may be 
 perceived by sight is not good" {u). 
 
 From these examples the proper principle regarding In what they 
 Patent defects may clearly be drawn ; they must be such ''°^'^^s*- 
 Defects as a man, unless he is perfectly incompetent to 
 conduct business, cannot help observing. For where a 
 person sees, or has the opportunity of seeing, goods before 
 purchase, Caveat emptor is the Pule of law ; and a man 
 who does not perceive the loss of an Eye or Tail in a 
 Horse, or the absence of the Poof or Windows from a 
 House, or does not distinguish between Purple and 
 Scarlet by the light of day, cannot expect the law to 
 give him any assistance, as every man making a bargain 
 is expected to have ordinary perception. Whether a 
 defect is Patent or not, or the purchaser has used ordinary 
 care, is a question for the consideration of the Jury. 
 
 Although the loss of an Eye is a breach of a Warranty How far the 
 of Soundness {x), it has been laid down, that " where one i^pa^iiT 
 buys a Horse upon warranting him to have both his Eyes, 
 and he have but one Eye, he is remediless ; for it is a thing 
 which lies in his own conusance, and such Warranty or 
 affirmation is not material nor to be regarded" {y). But 
 this seems to assume that the Eye has entirely disappeared, 
 or has been so obvious! y damaged, that it must lie in the 
 conusance of the buyer ; and nothing is said with regard to 
 a loss of sight, where there is little apparent injury to the 
 Eyes; for a Horse may appear to the majority of people 
 
 (?•) Price V. Morgan, 2 M. & W. 507. 
 55. («) Bailey v. Merrell, 3 Bulst. 95. 
 
 (») 2 Bla. Com. 165 ; and per \x) Butterfield v. Burroughs, 1 
 
 Hank, J., Year Book, 13 Hen. 4, Salk. 211. 
 p. 1. (?/) Year Book, 13 Hen. 4, p. 1 ; 
 
 {t) Bger v. Hargrave, 10 Vesey, Bayleij v. Merrell, Cro. Eliz. 389, 
 
134 
 
 warranty; sale and warranty by agent, etc. 
 
 " Bright 
 Eye." 
 
 Convexity of 
 Eye. 
 
 Where the 
 Buyer knows 
 the Defect. 
 
 Where De- 
 fects are dis- 
 cussed. 
 
 perfect in his Eyes, and yet have lost the sight of one or 
 both. Such is the case in Gutta serena, vulgarly called 
 " Glass-ei/e" (s), which is a Palsy of the optic nerve or 
 retina, and being difficult of detection can certainly never 
 be considered a Patent defect. 
 
 This point seems to have been taken in an old case, 
 where it is said, " Lou jeo vend chivaU que ad null Oculus 
 la null action gist; auter/nent lou H ad un counterfeit faux 
 et Bright Eye." " Where I sell a Horse that has no 
 Eye, there no action lies; otherwise where he has a 
 counterfeit, false and Bright Eye^^ {a). Thus it appears 
 that a distinction is here made between a Horse having 
 no eye at all, and having a counterfeit, false oi B rigid one. 
 And probably by Brig/it Eye is meant Glass-eye or Gutta 
 serena ; and the words " counterfeit" and " false" may be 
 an attempt of the Reporter to explain an expression which 
 he did not understand. Because, putting a false Eye into 
 a Horse is very far in advance of the sharpest practices of 
 the present day, or of any former period. 
 
 Thus, too, in a case in which a convexity in the forma- 
 tion of the cornea of the Eye made a Horse short-sighted, 
 and thence induced in him a habit of shying, Lord Camp- 
 bell said that this was not such a defect as the purchaser 
 was bound to take notice of. " There being an express 
 Warranty, he was not bound to examine so closely as to 
 ascertain whether the cornea was so formed as to produce 
 short-sight ; the most prudent man could not be expected 
 to do that" {b). 
 
 But if a person purchase a Horse hiowing it to be Blind, 
 he cannot sue the seller on a general warranty of sound- 
 ness, although he had warranted the animal to be sound in 
 every respect (f) . 
 
 AVhere the buyer observes some Defects, and they are 
 discussed by both parties before sale, and a Warranty is 
 given ; if an action is afterwards brought for a breach of 
 the Warranty, it is a question for the Jury to say whether 
 the Horse is sound in the terms of the Warranty, saving 
 those manifest and visible Defects which were known to 
 the parties. And then if he is sound with these exceptions, 
 they must consider whether the effect which might be pro- 
 duced by any of those Defects was contemplated or not. 
 
 (z) Gutta serena, ante, p. 91. 
 (ffl) Soiitherne v. Eowe, 2 Rol. 
 Rep. 5. 
 
 (i) Hohjdmj V. Morcjan, 28 L. J., 
 Q. B. 9. 
 
 (e) Marfjction v. Wyi'jht, 5 M. & 
 P. 610. 
 
PATENT DEFECTS. 135 
 
 that is, whether under the circumstances of the case the 
 seller undertook that they should not impede the natural 
 usefulness of the Horse. This appears in the following 
 case : — where an action was brought for a breach of War- 
 ranty on the sale of a Racehorse, the terms of which were, 
 "And the said Mr. Wright (the defendant) doth hereby 
 warrant the said Horse to be sound wind and limb at this 
 time," two subjects, namely. Crib-biting (d) and a Splint (e) 
 on the off-fore leg, were discussed by the parties at the 
 time of the bargain, and after that discussion, the War- 
 ranty in question was given. The Horse soon became 
 lame and afterwards broke done. On the case being tried, 
 the Jury returned a verdict for the plaintiff. 
 
 Chief Justice Tindal, in making a rule for a new trial 
 absolute, said, " It is laid down in the older books, that 
 where Defects are apparent at the time of a bargain, they 
 are not included in a Warranty, however general the 
 terms may be, because they can form no subject of deceit 
 or fraud ; and formerly the mode of proceeding for a 
 breach of Warranty was by an action of Deceit grounded 
 on an express fraud, and the averment in the declaration 
 was warraniizando vendklitP 
 
 " Although, however, certain exceptions may be grafted 
 on a contract of Warranty, yet in this case no fraud or 
 deceit can be attributed to the defendant, as the Horse's 
 defect was manifest, the Splint not only being apparent 
 but made the subject of discussion before the bargain was 
 made. If a person purchase a Horse, knowing it to be 
 blind, he could not sue the seller on a General Warranty 
 of soundness, although he had warranted the animal to 
 be sound in every respect. The Splint was known to 
 both the plaintiff and the defendant, and the learned 
 judge left it to the Jury to say whether the Horse was fit 
 for ordinary purposes. His direction would have been 
 less subject to misapprehension, if he had left it to them in 
 the terms of the Warranty to say whether the Horse was, 
 at the time of the bargain, sound wind and limb, saving 
 those manifest and visible defects which were known to 
 the parties ; the Jury might then have considered whether 
 the effect which might be produced by the Splint was 
 contemplated or not " (./). 
 
 When the case was again tried the Jury found for the 
 
 {d) Crib-biting, ante, p. 84. (/") Maryetson v. Wrighl, 5 M. & 
 
 [e) Splint, ante, p. 103. P. 610. 
 
136 warranty; sale and warranty by agent, etc. 
 
 plaintiff, as they tliought the Horse unsound at the time 
 of the contract from the Sj)lint, which was in a very had 
 situation, pressing upon one of the sinews, and which 
 would naturally produce lameness when the Horse was put 
 to work (g). 
 
 In a more recent case, in which the defendant sold a 
 Horse to the plaintiff with a generally written Warranty 
 of soundness, but at the same time pointed out a Splint 
 which it had, and the Horse subsequently became lame from 
 , the Splint, it was held that the lameness was a breach of 
 the Warranty. Pollock, C. B., in his judgment, said, 
 " The rule is asked for on the ground that when you point 
 out a Splint to the purchaser, you except it out of the 
 Warranty ; it may be so, if the Horse be blind, or have 
 any other patent defect, wliich is to be seen and is clear ; 
 but here it may well be that the defendant warranted that 
 the Splint should not grow into a lameness. A person 
 buying a Horse is often no judge of Horses, and may say, 
 I don't want to see the defects or blemishes of the Horse, 
 as I really know nothing about them ; I want and must 
 have a written Warranty. I do not see why this Warranty 
 should not be taken thus : ' I show you this Splint, and I 
 warrant the Horse perfectly sound notwithstanding.' It 
 may have been excepted in the Warranty, but there is no 
 exception at all. I think the defendant is liable on his 
 Warranty. This entirely agrees with the decision in ITctr- 
 getson v. Wright (g). Some Splints cause lameness and 
 others do not. A Splint, therefore, is not one of those 
 patent defects, against which a Warranty is inoperative." 
 Bramwell, B., in the same case, in giving judgment for 
 the plaintiff based his decision upon the broader ground, 
 that where the Warranty is a written one, it cannot be 
 modified by parol evidence to the effect that the defect 
 existed at the time, and was therefore excluded from the 
 Warranty (//). 
 Conclusion to The conclusion then to be drawn from the recent cases 
 be drawn from on this subject appears to be; — that the patent defects, 
 the cases. which the Warranty does not cover, and to which the doc- 
 trine of Caveat emptor applies, must be so manifest and 
 palpable, as to be necessarily within the knowledge and 
 apprehension of the purchaser, and also such defects as 
 at the time of sale either are, or will inevitably produce, 
 
 (r/) Margetson v. Wright, 1 M. & {h) Smith v. O'Brien, 11 L. T., 
 
 Sco. 627. N. S. 346. 
 
PATENT DEFECTS. 137 
 
 an Unsoundness. And as Mr. Baron Bramwell's opinion, 
 that parol evidence is inadmissible to modify the written 
 Warranty to the extent of proving the existence of patent 
 defects at the time of the Warranty being given (i), appears 
 to be well founded, the written Warranty must be taken 
 to contain all the terms of the contract, and evidence as to 
 Patent Defects will only be receivable in cases where the 
 Warranty is not in writing. 
 
 Where the "buyer suspects some Defect and wishes to Suspected 
 examine and try the Horse for it, but the seller objects Defects. 
 and says, *' I will warrant him," he is liable for the De- 
 fect. For where an action o)i the Case was brought when 
 a Horse warranted sound had turned out " Shoulder- 
 tied," it was contended that an action would not lie, 
 because the defect was visible. But Sir Henry Montague, 
 C. J., said, " This was the ground, that the plaintiff wished 
 to have ridden the Horse, but the defendant said, ' I will 
 warrant him sound.' " And Noy, J., said, " That is the 
 distinction, where the Defect is visible" (/«•). 
 
 Where there is no opportunity of inspecting the com- Turchase 
 modity, the Maxim Caveat emptor does not apply ; and gpecUon.^"^" 
 the intention of both parties must be taken to be, that it 
 shall be saleable in the Market under the denomination 
 mentioned between them (/). This has been laid down 
 with regard to Horses some centuries ago, for we find in 
 the Year Book it is said by Thirning, J., " If I buy a 
 Horse of you in a different place from where the Horse is, 
 through the confidence I have in you, and you warrant 
 him sound in all his parts, when he is Blind, I shall have 
 a good action of Deceit against you" {ni). Therefore, at 
 the present day, if A. in London were to buy a Carriage 
 Horse of B. in Yorkshire warranted sound, and the Horse 
 on its arrival were found to have some Patent defect, such 
 as the want of an ear or tail, A. would not be bound to 
 take it, because being maimed, it could not be said to 
 answer the description of the Horse he ordered; and by 
 taking a Warranty he has done everything in his power to 
 protect himself (»). 
 
 (/) Smiih V. O'Brien, 11 L. T., (;w) Year Book, 13 Hen. 4, p. 1. 
 
 N. S. 346. (w) ^ee Gardiner \. (?;•«■?/, 4 Gamp. 
 
 (k) Dorrington v. Edwards, 2 Rol. 145. See also Jones v. Just, L. R., 
 
 188. 3 Q. B. 197; 37 L. J., Q. B. 89; 
 
 {I) Gardiner v. Gray, 4 Camp. 18 L. T., N. S. 208. 
 145. 
 
( 138 ) 
 
 CHAPTER VI. 
 
 WARRANTY DISTINGUISHED FROM REPRESENTATION. 
 
 "Waeeanty distinguished feom 
 Representation. 
 Jieprescnfation intended as a JVar- 
 
 ranty 138 
 
 Recommendation of the Seller . . id. 
 
 ^'iJflrDiation as to Value id. 
 
 Distinction between a IVarrantij 
 
 and a Representation id. 
 
 Where a Representation amounts 
 
 to a Warranty 139 
 
 Question to be put to the Jury . . 140 
 
 Rule as to Warranty and Repre- 
 sentation 141 
 
 Mere Expression of Opinion .... id. 
 Selling according to Pedigree . . id. 
 Partly a Warranty and partly a 
 
 Representation id. 
 
 The Jury must decide between a 
 
 Warranty and Representation 142 
 
 Percival v. Oldacre 143 
 
 Judgment in Behn v. Burncss. . id. 
 Counterfeit Trade Marks 145 
 
 Representa- 
 tion intended 
 as a "War- 
 ranty. 
 
 Recommen- 
 dation of the 
 seller. 
 
 Aifirmation as 
 to value. 
 
 Distinction 
 between a 
 Warranty and 
 a Representa- 
 tion. 
 
 WARRANTY DISTINGUISHED FROM REPRESENTATION. 
 
 It is sometimes not very easy to determine wliether an 
 action for breach of Warranty should he brought against 
 the vendor of a chattel, or whether the proper remedy be 
 by an action for Misrepresentation, the Bule of law being 
 that every afhrmation at the time of sale of personal 
 chattels is a AVarranty, provided it appears to have been 
 so intended {a) . 
 
 In many cases, however, even the positive Recom- 
 mendation of the seller is not, from the nature of the case, 
 to be regarded as a Warranty, but merely as an expression 
 of his belief or opinion on a matter of which he can have 
 no certain knowledge, and on which the purchaser is gene- 
 rally capable of forming an opinion {b) ; the Eule being, 
 Commendatio simf)lex non ohlicjat. 
 
 Therefore a simple Affirmation or Assertion by the ven- 
 dor, as to the value or quality of his goods, does not 
 amount to a Warranty, unless it be made and received as 
 such, although the purchaser may liave bought the goods 
 on the faith of such Eecommendation ih). 
 
 The distinction between a Warranty and Bej)resentatio)i 
 is pointed out in a note to the case of Goram v. Sweeting (c), 
 
 [(i) Smith's Leading Cases, 7tli 
 ed. 174 ; Pouer v. Barham, 4 A. & 
 E. 473 ; Shephard v. Kain, 5 B. & 
 Aid. 240 ; Freeman v. Baker, 2 N. 
 & M. 446. 
 
 {b) Chandelor v. Lojms, Cro. Jac. 
 4; Rol. Abr. 101. 
 
 {c) Goram v. Sweeting, 2 Wms. 
 Saund. 200 c ; and see per Martin, 
 B., Benham v. United Guaruntee Co., 
 7 Ex. 753. 
 
WARRANTY DISTINGUISHED FROM REPRESENTATION. 139 
 
 and was also laid down by Chief Justice Best, in the fol- 
 lowing case. An action of Assumpsit was brought on the 
 Warranty of a Horse ; no direct evidence was given of 
 what took place when the contract was made, but letters 
 passed between the x^laintiff and defendant, in which the 
 plaintiff writes, " You well remember that you represented 
 the Horse to me as five years old ;" to which the de- 
 fendant answers, " The Horse is as I represented it." 
 Chief Justice Best said, " The question is, whether I and 
 the Jury can collect that a "Warranty took place ; I quite 
 agree that there is a difference between a Warranty and a 
 Representation, because a Representation must be loioicn to 
 be wrong. The plaintiff in his letter says, ' You remember 
 you represented the Horse to me as five years old.' To 
 which the defendant's answer is, ' The Horse is as I 
 represented it.' Now if the Jury find that this occurred 
 at the time of sale, and without any qualification, then I 
 am of opinion that it is a Warranty. If it occurred 
 before, or if it was qualified, then it must be taken to be a 
 Representation and not a Warranty." His Lordship then 
 left the question to the Jury, telling them " that if they 
 found that the defendant at the sale gave an undertaking 
 to the effect mentioned in the letters, then such under- 
 taking was a Warrant)/.''^ The Jury returned a verdict 
 •for the plaintiff {e). 
 
 A Eepresentation to amount to a Warranty must be Where a Re- 
 shown not only to have been intended to form part of amountfto'i 
 the contract, but also to have been made pending the WaiTanty. 
 contract. And therefore where A. sent his Horse to 
 Tattersall's for sale by auction without Warranty, and 
 on the day before the sale found B. in the stable exa- 
 mining the Horse's legs, and A. said to him, " You have 
 nothing to look for; I assm^e you he is perfectly sound 
 in every respect;" whereupon B. replied, "If you say so, 
 I am perfectly satisfied." Upon the faith of this repre- 
 sentation (admitted to have been made in good faith) B. 
 became the purchaser. It was held that this was no 
 Warranty, as this representation was not intended to form 
 part of the contract of sale, nor was it made pending the 
 contract. For the sale being by auction, the negotiations 
 between the parties had not commenced, inasmuch as the 
 contract began only when the Horse was put up for sale, 
 
 {e) Salmon v. Ward, 2 C. & P. 211; and see Cave v. Coleman, 3 M. 
 & Ey. 3. 
 
140 WARRANTY DISTINGUISHED FROM REPRESENTATION. 
 
 and ended when he was knocked down to the highest 
 bidder (/). 
 
 And in the case of Chalmers v. Harding (g) the plaintiff, 
 a farmer, having by letter inquired of the defendant, an 
 Agent for the sale of agricultural machines, the lowest 
 j^rice for which he could furnish a corn machine, the 
 defendant replied by letter as follows : — " I happen to 
 have a very good second-hand Wood's Eeaper, which I can 
 offer you at IG/. IGv. It belonged to a gentleman who 
 has retired from farming ; he paid me 35/. for it a little 
 time ago ; it has only cut fifty acres, and it is not one 
 penny the worse, — in fact, you would hardly know it 
 from a new one. I enclose drawings. I have shown more 
 than thirty of these machines in this part, all of which are 
 doing well, so that I can confidently recommend it. I do 
 not recommend it for cutting meadow grass, but it will 
 cut wheat, barley, oats, clover, French grass, &c., or any 
 grain crop efficiently." In an action to recover damages for 
 breach of Warranty, the machine having failed to perform 
 the desired work, it was held that the letter did not 
 amount to a Warranty on a contract tliat the particular 
 machine would do the specified work, but was a mere 
 representation and a description of Wood's Patent Reapers 
 generally. 
 Question to The proper question for the Jury in a case in which 
 
 Jury' ° ^ ^^® effect of a statement made during the sale is the point 
 at issue, is whether it is or is not intended to form part of 
 the contract. In the case of Foster v. Smith (A), an agent 
 sold a Mare to C, and having no express authority from 
 the owner to warrant her, refused to do so, but at the time 
 of the sale told C. that " if the Mare was not all right she 
 was not his." C. thereujoon paid the price, which was 
 received by the owner. The Mare proving Unsound, 
 C. returned her to the agent, and sued the owner in the 
 County Court for a return of the money. Jervis, C. J., in 
 delivering the judgment of the Court of Common Pleas, 
 said that the proper question to leave to the Jury in this 
 case was whether it was part of the contract that the Mare 
 should be returned, if she proved Unsound ; if so, and she 
 were returned, there would be a failure of consideration, 
 and the plaintiff would be entitled to recover back the 
 price. 
 
 (/•) Hoijkins V. Tanqueray, 23 L. (r/) 17 L. T., N. S. 571. 
 
 J.,"C. P. 162. (h) Foster v. Smith, 18 C. B. 156. 
 
WARRANTY DISTINGUISHED FROM REPRESENTATION. 141 
 
 The Judges in the Exchequer Chamber have laid Rule as to 
 down a Rule with regard to Warranty and Representation Warranty and 
 which appeared to them to be supported so clearly by tion!^^^^^ ^" 
 the early as well as the most recent decisions, that they 
 thought it unnecessary to bring them forward in review. 
 The judgment was pronounced by Chief Justice Tindal, 
 who said, " The Rule, which is to be derived from all the 
 cases, appears to us to be, that where upon the sale of 
 goods the purchaser is satisfied without requiring a War- 
 rant ij (which is a matter for bis own consideration), he 
 cannot recover upon a mere Representation of the quality 
 by the seller, unless he can show that the Representation 
 was bottomed in FramV {i). 
 
 In Jenchcine v. Slade{k), where two pictures were sold, Mere expres- 
 described in a Catalogue as one by Claude Loraine U). ^^'^^p^ 
 
 <D •/ \ J f ODinioii 
 
 and the other by Teniers [m), and they turned out to be 
 copies, Lord Kenyon seemed to think that the Represen- 
 tation of a fact of which the seller could have no certain 
 knoirkdge, must be taken as a mere expression of opinion, 
 as these were very old painters, and there was no way of 
 tracing the pictures. 
 
 And where a man not knowing the age of a Horse, but Selling 
 having a written Pedigree, which he received with him, Pe*^^i.^e^ ^ 
 said at the time of sale that he sold him according to that 
 Pedigree, knoiring notlting further than he learnt there- 
 from, the mark being out of his mouth when he bought 
 him, it was held to be 710 Warrant//, and that he was not 
 liable to an action on account of the Pedigree turning out 
 false {n). 
 
 But a written instrument may consist partly of a War- Partly a War- 
 ranty and partly of a Representation. Thus, where the partfy^rEe- 
 f olio wing Receipt was given on the purchase of a Horse, presentation. 
 " Received of Robert Dickenson lOU/. for a bay Grelding 
 got by Cheshire Cheese, and warranted Sound," and an 
 action was brought on an alleged breach of Warranty, on 
 the ground that he was not bred in the manner above 
 described. Chief Justice Dallas held that the Warranty 
 was confined to the Soundness, and the statement that he 
 was got by Cheshire Cheese was a mere Representation (o). 
 
 (i) Ormrod v. Huth, U M. & W. («) Dunlop v. Wright, 1 Peake, 
 
 664. 197. 
 
 {k) Jendwine v. Slade, 1 Esp. (o) Dickenson v. Gapp, H. T. 
 
 572. 1821, cited in Btidd v. Fairmanner, 
 
 (/) Claude Loraine died in 1G82. 1 M. & Sc. 78. 
 
 {ni) Teniers died in 1694. 
 
142 WARHANTY DISTINGUISHED FROM REPRESENTATION. 
 
 Also, wliere a Receipt on the sale of a Colt contained tlie 
 following words after the date, name and sum, " for a 
 grey four years old Colt warranted Sound in every re- 
 spect," and the Colt turned out to be only three years old, 
 Chief Justice Tindal nonsuited the plaintiff, who had 
 brought an action on that ground, and said, " I am of 
 opinion that the first part of the Receipt contains a Re- 
 prcscnfation and the latter part a Warranty. In the case 
 of a Representation, to render liable the party making it, 
 the facts stated must be untrue to his knoniedge ; but in 
 the case of a Warranty he is liable whether they are within 
 his knowledge or not.'' The Court of Common Pleas dis- 
 charged a rule nisi for setting aside the nonsuit, and Mr. 
 Justice Alderson said, " A Warranty must be complied 
 with whether it is material or not, but it is otherwise as 
 to Representation. If the word ^Warranted' had been 
 the last word, I should have held that it extended to the 
 whole" (p). However, in a previous case, where the 
 plaintiff larought an action to recover the price of a Horse 
 sold under the following Warranty, " A black Celding, 
 about five years old, has been constantly driven in the 
 plough — Warra)ited," it was held that the terms of such 
 AVarranty applied to the Souiubiess of the Horse rather 
 than to the nature of his employment ( q) . 
 
 So, also, in the case of Anthony y. Jlalstead {r), the 
 following document, viz. : " Received from A. the sum of 
 60/. for a black Horse, rising five years, quiet to ride and 
 drive, and w^arranted sound up to this date, or subject to 
 the examination of a veterinary surgeon," was held not to 
 be a Warranty that the Horse was quiet to ride and drive. 
 The Jury It is a question for the Jury whether the description of 
 
 must decide ^^^ article in a Catalogue, a Receipt, or a Bill of parcels, 
 Warranty and amounts to a Warranty, or is merely a matter of De- 
 a Eepresenta- script ion or intimation of an opinion, and it should be 
 *^°°- submitted to the Jury with all the attendant circum- 
 
 stances. Thus, where a Pictm'e had been sold as a Rem- 
 brandt, an action was brought on a Bill of exchange of 
 which the Picture was the consideration, and it appeared 
 doubtful on the evidence whether there had been a War- 
 ranty or only a Representation; Chief Justice Tindal, in 
 summing up, said, " The question is, whether you think 
 that a Warranty was in fact given, and that it was 
 
 {p) Budd V. Fair manner, 5 C. & {q) Richardson \.Brmvn,^'iS.oove, 
 
 P. 78. 338 ; iS. C. 1 Bing. 344. 
 
 (»•) 37 L. T., N. S. 433. 
 
WARRANTY DISTINGUISHED FROM REPRESENTATION. 143 
 
 broken ? For, if you do, you must find your verdict for 
 such sum as you think to be the real value of the picture ; 
 but if there was no express Warranty, but only a Repre- 
 senfation, then, as there is no evidence that the plaintiff 
 did not believe that the picture was not a Rembrandt, he 
 will be entitled to recover the full amount of the Bill," 
 which the Jury found (s). But in a case where Pictures 
 were sold with a Bill of parcels, containing the words 
 " Four Pictures, Yiews in Venice, Canaletti," the Jury 
 thought this a Warranty, and refusing a rule for a 
 new trial. Lord Denman, C. J., said, " It is for the Jury 
 to say, under all the circumstances, what was the effect 
 of the words, and whether they implied a Warrant!/ of 
 genuineness or conveyed only a Description or an ex- 
 pression of opinion, I think that their finding was right ; 
 Canaletti if) is not a very old painter" {ti). 
 
 So, too, in the case of Percival v. Oldacre {x) the plain- Perdval v. 
 tiff saw a Horse at Bank's, in Gray's Inn Lane, belong- (^^'■^"'^>'^- 
 ing to the defendant, which was for sale. He afterwards 
 saw the defendant, told him that he had seen the Horse, 
 and asked him ' What about the Horse ? ' The defendant 
 said that he was a good harness Horse, and that he had 
 been bought to match for Baron Rothschild for 85/., and 
 that he was only selling him because he would not match. 
 The plaintiff on this went to Bank's, and bought the 
 Horse eventually for 65/. The Horse, on being put in 
 harness, turned out to be a kicker, and kicked the plain- 
 tiff's trap to pieces. He was afterwards sent to a stable, 
 and sold for 40/., and the action was brought for the dif- 
 ference. The Jury found a verdict for the plaintiff for 
 the 25/. claimed. In moving for a new trial it was con- 
 tended that there was no -evidence of Warranty, but Erie, 
 C. J., said that Mr. Justice Byles, who tried the cause, 
 was of opinion that there was evidence to go to the Jury 
 of a Warranty, and that the verdict therefore ought not to 
 be disturbed. 
 
 In the case of Belin v. Burness (//) Mr. Justice Williams, Judgment in 
 in delivering the judgment of theExchequer Chamber, gave -^^^'" ^- •^"'■' 
 the following lucid exposition of the legal characteristics 
 
 ness. 
 
 (s) Be Schwanherg v. Buchanan, 5 (?<) Tower v. Barham, 4 A. & E. 
 
 C. & P. 343. 473. 
 
 it) Canaletti died in 17G8, and {x) Percival v. Oldacre, N. P. 0. 
 
 Claude Loraine and Teniers (tlic P. Jan. 18, 1865. 
 
 younger), mentioned in Jcudicine v. {ij) Behii v. Buriiess, 32 L. J., Q. 
 
 Slade, died, the formex' in 1682, the B. 204, recognized and approved 
 
 latter in 1694. by Erie, C. J., Mallan v. Madloff. 5 
 
 N. R. 54. 
 
144 WARRANTY DISTINGUISHED FROM REPRESENTATION. 
 
 of Representation as distinguislied from Warranty. He 
 said, " Properly speaking, a rej)resentation is a state- 
 " ment or assertion made by one party to tlie other, be- 
 " fore or at the time of the conti-act, of some matter or 
 " circumstance relating to it. Although it is some thing 
 " contained in a written instrument, it is not an integral 
 " part of the contract, and consequently the contract is 
 " not broken, although the representation proves to be 
 " untrue nor (with the exception of the case of policies 
 " of insiu-ance, or at all events marine policies, which 
 " stand upon a peculiar and anomalous footing) is such" 
 " untruth any cause of action, nor has it any efficacy 
 *' whatever, unless the representation was made fraudu- 
 " lently, either by reason of its being made with a know- 
 " ledge of its untruth, or by reason of its being made dis- 
 " honestly, or with a reckless ignorance whether it was 
 " true or untrue (2). If this be so, it is difficult to un- 
 " derstand the distinction which is to be found in some 
 " of the treatises, and is in some degree sanctioned by 
 " judicial authority (a), that a representation, if it differs 
 " from the truth to an unreasonable extent, may affect 
 " the validity of the contract. Where, indeed, a repre- 
 " sentation is so gross as to amount to sufficient evidence 
 " of fraud, it is obvious that the contract on that ground 
 " is voidable. Although representations are not usually 
 " contained in the written instrument of contract, yet 
 " they sometimes are, but it is plain that their insertion 
 " therein cannot alter their natiu-e. A question, however, 
 " may arise whether a descriptive statement in a "WTitten 
 " statement is a mere representation, or whether it is a 
 " substantive part of the contract. This is a question of 
 " construction, which the Com-t and not the Jury must 
 " determine. 
 
 " But with respect to statements in a contract descrip- 
 " tive of the subject-matter of it, or of some material 
 " incident thereof, the true doctrine established by prin- 
 " ciple as well as by authority appears to be, generally 
 " speaking, that if such descriptive statement was in- 
 " tended to be a substantive part of the contract {b), it 
 " is to be regarded as a Warranty, that is to say, a 
 " condition on the failure or nonperformance of which 
 " the other may, if he be so minded, repudiate the con- 
 " tract in tofo, and so be relieved from performing his 
 
 (2) EUiotty.ron Glehen, 18 L. J., («) Barker v. JJ'inclle, 6 El. & Bl. 
 
 Q. B. 221 ; Wheelton v. Ilardisty, 675, G80. 
 27 L. J., Q. B. 241. {b) Foster v. Smith, 18 C. B. 156. 
 
WARRANTY DISTINGUISHED FROM REPRESENTATION. 14-5 
 
 " part of it (c), provided it has not been partially exe- 
 " cuted in his favour. If, indeed, he has received the 
 " whole or any substantial part of the consideration for 
 " the promise on his part, the Warranty loses the cha- 
 " racter of a condition, or, to speak more properly, perhaps 
 " ceases to be available as a condition, and becomes a 
 " AVarranty in the narrow sense of the word, namely, a 
 " stipulation by way of agreement, for the breach of 
 " which a compensation must be sought in damages. 
 " Accordingly, if n specific thing has been sold with a 
 " Warranty of its quality, under such circumstances the 
 " property passes by the sale ; the vendee having been 
 " thus benefited by the partial execution of the contract, 
 " and become the proprietor of the thing sold, cannot 
 '* treat the failure of the Warranty as a condition broken, 
 " unless there is a special stipulation to that effect in the 
 " contract {d), but must have recourse to an action for 
 " damages in respect of the breach of Warranty. 
 
 " But in cases where the thing sold is not specific, and 
 " the property has not passed by the sale, the vendee 
 " may refuse to receive the thing proffered to him in per- 
 " formance of the contract, on the ground that it does 
 " not correspond with the descriptive statement, or, in 
 " other words, that the condition expressed in the con- 
 " tract has not been performed. Still, if he receives the 
 " thing sold, and has the enjoyment of it, he cannot 
 " afterwards treat the descriptive statement as a con- 
 " ditiou, but only as an agreement, for the breach of 
 " which he may bring an action to recover damages." 
 
 An action lies by a manufacturer of goods against a Countei-feit 
 person who affixes to his own goods the known and ^^'^^^ marks, 
 accustomed mark of the former, and sells them upon a 
 fraudulent representation that they are of the manufac- 
 ture which such mark would denote them to be (e) ; and 
 such action is maintainable without any allegation or 
 proof of special damage (/). And now by the Mer- 
 chandize Marks Act, 18(52 (r/), a sale of an article bearing 
 a trademark or description, imports a warranty of such 
 trademark or description, unless the contrary is expressed 
 in writing. 
 
 (c) Wheelton v. Hardisty, 27 L. J., {c) Rodyers v. Kowtll, 5 C. B. 109. 
 
 Q. B. 241. (/) JSlqficld V. Payne, 4 B. & Ad. 
 
 {d) J3annerma?iYJFhitc,lO G.B., 410. 
 
 N. S. 844. («/) 25 & 26 Vict. c. 88, ss. 19, 20. 
 
 O. L 
 
( 146 ) 
 
 CHAPTER VII. 
 
 PRAIIDDLENT CONTRACTS, 
 
 Where the Law does not interfere 
 Where several Persons eombine 
 
 to cheat 
 
 Conspiracy to cheat Indictable . . 
 There must be Evidence of Con- 
 cert 
 
 What Evidence has been held In- 
 sufficient 
 
 Conspiring to obtain Money by 
 
 False Fretences 
 
 Cvnspiriny to induce a Creditor 
 
 to forego his Claim 
 
 Where only one Ferson cheats, 
 
 an Action lies 
 
 Chandelor v. Lopus 
 
 liemarks on that Case 
 
 Form of Action 
 
 Foundation of the Action 
 
 In ivhat Fraud consists 
 
 There must be moral Fraud .... 
 
 Efect of Fraud 
 
 IIoiv the Question of Fraud is to 
 
 be decided 
 
 Falsehood must be followed by 
 
 Damage 
 
 A naked Lie no cause of Action . 
 Frcsumptivn that Person de- 
 frauded was influenced by the 
 
 Jlisrepresentation 
 
 Due Caution must always be ob- 
 served 
 
 Hot Fraud to suppress what there 
 
 is no Duty to communicate . . 
 
 Pequisites to an Action for False 
 
 Itepresentation 
 
 Or on Breach of Warranty .... 
 
 Caveat Emptor 
 
 A visible Defect and a nude As- 
 sertion 
 
 Dealing Talk 
 
 Collateral Fraud does not avoid a 
 
 Contract 
 
 A Foolish Bargain 
 
 Representation known to be un- 
 true 
 
 Made before a Sale by Auction . 
 Made by a Bidder at an Atiction 
 
 14C 
 
 147 
 
 (d. 
 
 id. 
 id. 
 148 
 id. 
 
 id. 
 
 id. 
 149 
 
 id. 
 150 
 
 id. 
 
 id. 
 
 id. 
 
 id. 
 
 id. 
 151 
 
 id. 
 
 id. 
 
 id. 
 
 152 
 id. 
 id. 
 
 id. 
 id. 
 
 153 
 
 id. 
 
 id. 
 id. 
 154 
 
 Pepresentotion not known to be 
 
 true 
 
 A well-grounded Belief 
 
 Delusion affecting the Contract . 
 Pepresentation to prevent In- 
 quiries 
 
 Pepresentation through a Third 
 
 Party 
 
 Pepresentation by a Third Party 
 A Bona fide Pepresentation . . 
 Pepresentation as to Credit .... 
 Sale of Goods ''with all Faults" 
 
 excludes latent Defects 
 
 Unless there be an express War- 
 ranty 
 
 Or Fraud is used to conceal them 
 
 Plugging, d,-c 
 
 Ward V. Hobbs 
 
 Contract made voidable by Fraud 
 Where Fraud is practised upon 
 
 the Buyer 
 
 Except ivhere it works Injustice . 
 Where he continues to deal with 
 
 the Article 
 
 Where Fraud is practised upon 
 
 the Seller 
 
 Pesale by the Buyer to an in- 
 nocent Vendee 
 
 Contract with intent to cheat the 
 
 Seller 
 
 Preconceived Design of not Pay- 
 ing for Goods 
 
 Question for the Jury 
 
 Pesale at a reduced Price 
 
 Unstamped Agreement admissi- 
 ble to prove Fraud 
 
 Payment by a Cheque which is 
 
 dishonoured 
 
 Fraud of an Infant 
 
 Of a Married TJ'oman 
 
 Where a Contracting Party is 
 
 Weak-minded 
 
 Drunkenness of a Contracting 
 
 Party 
 
 Goods kept by the Party when 
 sober 
 
 154 
 
 id. 
 id. 
 
 id. 
 
 155 
 id. 
 id. 
 id. 
 
 156 
 
 id. 
 id. 
 158 
 id. 
 id. 
 
 159 
 id. 
 
 id. 
 
 id. 
 
 id. 
 
 160 
 
 id. 
 id. 
 id. 
 
 161 
 id. 
 id. 
 
 162 
 id. 
 id. 
 
 FRAUDULENT CONTRACTS. 
 
 Where the J^ many cases, wliere an attempt is made by one man to 
 interfere.^*^ oveiTeacli another, the law does not interfere; because when 
 
FRAUDULENT CONTRACTS. 147 
 
 it is a mere struggle between mind and mind, caution and 
 ■wariness, if fairly exercised, may often be beld sufficient to 
 obviate the effects of cunning and duplicity {a) . 
 
 But where several combine for the pui'pose of aiding Where several 
 and assisting each other in outmtting a single individual, persons com- 
 there the parties stand on very different terms, and that ^^® ° ^ 
 which ordinary prudence might othermse prevent, becomes 
 oftentimes a dangerous and powerful Conspiracy, difficult to 
 be detected, and most disastrous in its consequences (a) . 
 
 Where there is CoUu^ion between two or more to cheat in Conspiracy to 
 the sale of a Horse, an Indictment for a Conspiracy maybe cheat indict - 
 maintained [b], because it is such an offence as affects the ^ ^* 
 Public, and against which no ordinary care or prudence 
 can guard {c). 
 
 But no indictment lies for a Conspiracy without e%idence There must be 
 either direct or indirect {d) of concert between the parties to evidence of 
 effectuate a Fraud. Thus in the case of Rex v. Pyu-ell {e) , '^^^^^^ ' 
 where a false Warranty had been given, Lord Ellenborough 
 directed an acquittal, because one of two defendants, though 
 acting in the sale, was not shown to have been aware that 
 a Fraud was practised (/'). 
 
 So on an indictment against A., B., C, D., E., F., Gr. and What evi- 
 H., for conspiracy to cheat M. by selling a glandered v^^^^^f? 
 Horse as a sound Horse, the e^ddence Avas that A. having insufficient, 
 previously cheated M. by selling him a kicking Horse, 
 the defendants B., C, D. andE. obtained that Horse from 
 M. in exchange for a glandered Horse which he sub- 
 quently sold. A., accompanied by Gr., afterwards sold M. 
 another Horse, in which transaction the latter was again 
 defrauded. Some evidence was given to show that A. was 
 frequently in company with some of the other defendants, 
 and that he was aware of a previous sale of the glandered 
 Horse by them, but there was no other evidence to connect 
 him with its sale to M. It was held by Mr. Justice Cress- 
 well, that in the absence of any evidence clearly leading to 
 the conclusion that A. was a party to that sale, there was 
 no evidence of a Conspiracy to go to the Jury against 
 him(r/). 
 
 (ff) See per Law, Recorder of {d) Reg. v. Read, 6 Cox, C. C. 
 
 London, Reg. v. Bailey, 4 Cox, 0. 134. 
 
 C. 397. (e) Re.v v. Pywell, 1 Stark. N. P. 
 
 {h) Pauley V. Freeman, 3 T. R. C. 402. 
 
 58 ; Reg. v. Hheppard, 9 C. & P. (/) See Reg. v. Kenricl; T) Q. B, 
 
 123. 62. 
 
 {<■) Rex V. Wheafh/, 2 Burr. (-/) Reg. v. Reed, 6 Cox, C. C. 
 
 1127, ■ 135. 
 
 l2 
 
148 
 
 FRAUDULENT CONTRACTS. 
 
 Conspiring to 
 obtain money 
 by false 
 pretences. 
 
 Conspiring 
 induce a 
 creditor to 
 forego his 
 claim. 
 
 to 
 
 Where only 
 one person 
 cheats, an 
 action lies. 
 
 Chandelor v. 
 Lopus. 
 
 "Wliere on the sale of two Horses the prosecutor was 
 told by both the defendants that certain Horses had been 
 the property of a lady deceased, and were then the pro- 
 perty of her sister, that they had never been the property 
 of a Horsedealer, and were quiet and tractable, all of 
 which was absolutely false, the defendants were found 
 guilty of conspiring to obtain money by fake pretences, as 
 they knew that nothing but a full belief of the truth of 
 the above statements would have induced the prosecutor 
 to make the purchase, he having repeatedly informed them 
 that he wanted the Horses for his claughter's use [h). 
 
 An indictment lies for conspiracy, where persons have 
 conspii^d to induce a creditor by false representations to 
 forego part of his claim. Thus an indictment was held 
 to be good which alleged that S. sold B. a Mare for 39/. ; 
 that while the price was unpaid B. and C. conspired by 
 false and fraudulent representations made to S. that the 
 Mare was unsound, and that B. had sold her for 27/., to 
 induce S. to accept 27/., instead of the agreed-on price of 
 39/., and thereby to defraud S. of 12/. {i). 
 
 If one man alone sell an Unsound Horse for a Sound 
 one, it is a mere Private imposition, and no Indictment 
 can be maintained, because the buyer should be more on 
 his guard {j). But if it be such an offence, as, if prac- 
 tisecl by two, would be the subject of an indictment for a 
 Conspiracy, the vendor is civilly liable in an action for 
 reparation of damages at the suit of the piu'chaser, be- 
 cause Collusion is not necessary to constitute Fraud (/.•). 
 
 Chandelor v. Lopus. (/) is a well-known case on the 
 subject of Fraudulent JRepresentation. It was an action 
 on the Case against a Jeweller for selling a Jewel, affirm- 
 ing it to be a Bezoar stone, when really it was not one. 
 All the Justices and Barons, except Anderson, held " that 
 the bare affirmation that it was a Bezoar stone, without 
 warranting it to be so, was no cause of action ; and that 
 although the seller hnew it to be no Bezoar stone, it was not 
 material, because every one in selling his wares ^dll affirm 
 that they are good, or that the Horse which he sells is 
 Sound ; yet if he does not warrant them to be so, it is 
 no cause of action, and the Warranty ought to be made 
 at the same time as the sale." 
 
 (A) Reg. V. Kenricl-, 5 Q. B. 63. 1128. 
 
 (i) R. V. Carlisle, 23 L. J., M. C. (/.■) Paslnj v. Freeman, 3 T. R. 
 
 109. oS. 
 
 (,/) Rex V. IVheath/, 2 Burr. (/) Cha>idelorY. Lopus, Cvo.3&cA. 
 
FRAUDULENT CONTRACTS. 149 
 
 But the opinion of Anderson is now held to have been Remarks on 
 the correct one ; for he said, " the Deceit in selHng it as *^^* ^^''®- 
 a Bezoar, whereas it was not so, is cause of action." And 
 the following remarks are made upon this case in Smith's 
 Leading Cases {>n) : — " If the plaintiff in this case were 
 to declare upon a Wan-anty of the stone, he would at 
 the present day perhaps succeed, the Rule of law being 
 that every affirmation at the- time of sale of personal 
 chattels is a WaiTanty, provided it appears to have been 
 so intended (;«). If not, he would at all events succeed 
 if he were to sue in tort, laying a scienter, since the 
 fact of the defendant's being a Jeweller would be almost 
 irresistible evidence that he kneio his Representation to 
 be false. When Chandelor v. Lopiis was decided, as the 
 action of assumpsit was by no means so distinguishable 
 from case, ordinarily so called, as at present, — so the 
 distinction was not clearly recognized, which is now how- 
 ever clearly established, between an action on a Warranty 
 express or implied, which is founded on the defendant's 
 promise that the thing shall be as warranted, and in order 
 to maintain which it is unnecessary that he should be at 
 all aware of the fallacious nature of his undertaking, and 
 the action upon the case for false representation, in order 
 to maintain which the defendant must be shown to have 
 been actually and fraudulently cognizant of the falsehood 
 of his representation, or to have made the representation 
 fraudulently "without belief that it was true ; actions of the 
 former description then being usually framed in tort, imder 
 the name of actions for deceit. However, the main doctrine 
 laid down in Cltandelor v. Lopus has never since been dis- 
 puted, viz., that the plaintiff must either declare upon a 
 contract, or, if he declare in tort for a misrej)resentation, 
 must aver a scienter. That such an action is maintainable 
 when the scienter can be proved, though there be no War- 
 ranty, is now (notwithstanding the dictum in Chandelor v. 
 Lopus) well established " (o). 
 
 Therefore where a person has been cheated or deceived Form of 
 by Fraud or artifice in piu^chasing a Horse, his proper ^^^^o^- 
 remedy against the vendor is an action for fraudulent 
 
 [m) 1 Smith's Leading Cases, 7th (o) Uunlop v. TJ'aiiff/i, Feake, 228; 
 
 ed. 17-1. Jcnduine v. Slade, 2 Esp. 572 ; 
 
 (») See Pouei- v. Barham, 4 A. Dobell v. Stevens, 3 B. & C. 625 ; 
 
 & E. 473 ; Shepherd v. Kain, 5 Fletcher v. Boushcr, 2 Stark. N. P. 
 
 B. & Aid. 240 ; Freeman v. Bakir, C. 561. 
 2 N. & M. 446. 
 
150 
 
 FRAUDULENT CONTRACTS. 
 
 Foundation of 
 the action. 
 
 In what Fraud 
 consists. 
 
 There must 
 be moral 
 Fraud. 
 
 Effect of 
 Fraud. 
 
 How the 
 question of 
 Fraud is to be 
 decided. 
 
 Falsehood 
 must be 
 followed by 
 damao'c. 
 
 misrepresentation or deceit (p). Because sucli action lies 
 where a man does any Deceit to the damage of another (q). 
 
 The foundation of this action is Fraud and Deceit in the 
 defendant, and Damage to the pLaintiff. Fraud without 
 Damage or Damage without Fraud gives no cause of 
 action, but where these two concur an action hes (r). 
 
 Fraud generally consists either in the Misrepresentation 
 or Concealment of a material fact. But what does or does 
 not amount to Fraud depends very much on the facts of 
 each particular case, on the relative situation of the parties, 
 and on their means of information [s) . 
 
 To support the action there must always be proof of 
 3Ioral Fraud (f) : because where there is no Warranty, the 
 Scienter or Fraud is the gist of the action. Thus it was 
 held that an action on the Case could not be maintained 
 against the defendant for selling a Horse as his own, when 
 in truth it belonged to A. B. ; because the plaintiif could not 
 prove that the defendant l-new it to be the Horse of A. B., 
 for it appeared that the defendant had bought it in Smith- 
 field Market, but had neglected to get it legally tolled (?^). 
 
 Fraud gives a cause of action, if it leads to any sort of 
 damage ; but it avoids contracts only where it is the ground 
 of the contract, and where, imless it had been employed, 
 the contract would never have been made(i"). 
 
 The facts to constitute Fraud must be found by the 
 Jmy ; but whether certain facts as proved amount to Fraud 
 is a question of law ; and therefore legal fraud may exist, 
 when the Jmy have found that the intention of the de- 
 fendant was not fraudulent (?r). 
 
 If a person knowingly utters a falsehood wdth intent to 
 deprive another party of a benefit and acquire it to him- 
 self (;r) , or mth intent to induce another party to do an act 
 which results in his loss, and damage nati.u"ally flows to the 
 other party from this belief, an action lies (v/). 
 
 (;;) Rex v. Whcathj, 2 Burr. 
 1128. 
 
 [q) Com. Dig-, tit. Action upon 
 the Case for a Deceit, A. 1. 
 
 (/•) Per Croke, J., Bailey y. Mer- 
 rell, 3 Bulst. 95. See Barry v. 
 CrosJicy, 2 J. & H. 21. 
 
 («) Chit. Coutr. 10th ed. 630. 
 
 \t) Per Parke, B., Taylor v. 
 Ashton, 11 M. & W. 413 ; per Lord 
 Wensleydale, Smith v. Kay, 7 H. 
 L. Cas. 775. 
 
 (?c) iSpriiigircll v. Allen, Aleyn, 
 91, cited in Williamson v. Allison, 
 
 2 East, 448. 
 
 (r) Per Lord Wensleydale, Smith 
 Y..Kay, 7 H. L. Cas. 775; per 
 Byles, J., Hotson v. Brotvn, 9 C. B., 
 N. S. 445. 
 
 («■) See per Piatt, B., Murray v. 
 Mann, 2 Ex. 539 ; 3[ilne v. Mar- 
 icood, 15 C. B. 778 ; Broom's 
 Maxims, 4th ed. 758, 759 ; Folwill 
 V. Walter, SB. & Ad. 114. 
 
 (.(■) Barley y. Walforcl,9 Q.B. 197. 
 
 [y] Longmeacl v. Holliday, 6 Ex. 
 766 ; and see Levy v. Lanyridge, 4 
 M. & W. 337. 
 
FRAUDULENT CONTRACTS. 151 
 
 But an actiou cannot be supported for telling a bare A naked lie 
 Naked Lie ; and that is defined to be, sajing a thing ^o p'^^^^^e of 
 which is false, knowing or not kno^^dng it to be so, and ^°*^°^" 
 without any design to injiu-e, cheat, or deceive another 
 person. Every Deceit comprehends a Lie ; but a Deceit 
 is more than a Lie, on accoimt of the view with which 
 it is practised, its being coupled A\dth some dealing, and 
 the injmy which it is calculated to occasion and does occa- 
 sion to another person (s) . 
 
 It it not necessary for the person defrauded to give Presumption 
 direct proof that he was influenced by the Misrepresenta- *^^^* person 
 tion. And upon this point Lord Denman, 0. J., said, " If influenced by 
 a fraudulent representation is published, it must be pre- the Misrepre- 
 sumed that a party who acts according to such a represen- sentation. 
 tation was influenced byit"(r/). But this appears to be 
 rather an inference for the Coui't than a question for the 
 Jmy, for in the case of Feret v. Hillib), though the Jmy 
 found that the plaintiff had obtained a lease by fraud and 
 misrepresentation, yet the Court entered a verdict for the 
 plaintiff on the ground that the Fraud was collateral, and 
 that it did not go to the root of the contract. 
 
 In considering the question of Fraud, the Comets have Due caution 
 endeavom^ed on the one hand to repress dishonesty, and must 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 snccurruntjura (c). 
 
 Therefore, to constitute Fraud there must be an assertion Not Fraud to 
 of something false within the knowledge of the person suppress what 
 asserting it, or the suppression of that which is true, and Duty to 
 which it was his dutij to communicate. So if a person piu^- communicate, 
 chases an article wliich is to be manufactm-ed for him, and 
 the manufactiu-er delivers it with a patent defect wliich 
 may render it worthless, if the purchaser has had an oppor- 
 tunity of inspecting it, but has neglected to do so, the 
 manufacturer is not guilty of Fraud in not pointing out 
 the defect {d). 
 
 (z) TerBuiler, J., Pa.il('>/ V. Free- L. J., C. P. 100; and in S. v. 
 
 man, 3 T. R. 56 ; and Mionmery v. Saddler.'i' Co., per Blackburn, J., 
 
 Paul, 1 C. B. 322. 32 L. J., Q. B. 343. 
 
 (ff) Watson V. Earl of Charlmont, (c) See Chit. Contr. 10th ed. 
 
 12 Q. B. 862. 63U ; Shrcusburyv. Blount, 2 Scott, 
 
 {b) Feret v. Hill, 23 L. J., C. P. N. K. 588. 
 185. But see the comments upon (r/) Horsfallv. Thomas, 1 H. & C. 
 
 this case in Caiiham v. Barry, 24 90 ; Smith v. Hughes, L. R., 
 
152 
 
 FRAUDULENT CONTRACTS. 
 
 Requisites to 
 an action for 
 False Repre- 
 sentation. 
 
 Or on Breacli 
 of Wan-anty. 
 
 Caveat Emptor. 
 
 A visible de- 
 fect and a 
 nude asser- 
 tion. 
 
 DeaUn;? Talk. 
 
 To support an action for a false representation or de- 
 ceit three cii'cumstances must combine. The representa- 
 tion must he proved, first, io be false in fact; sevoudh/, to 
 be false, or not to be true, to the knowledge and belief 
 of the person making it ; and thirdhj, that it was the false 
 representation which gave rise to the contracting of the 
 other party {e). 
 
 But to support an action ex contractu, for a breach of 
 Warranty, it is not necessary that all these three circum- 
 stances should concur, in order to ground an action for 
 damages at law or a claim for relief in a Court of Equity ; 
 for where a Warranty is given, by which the party under- 
 takes that the article sold shall, in point of fact, be such as 
 is described, no question can be raised upon the scienter, 
 u^Don the fraud or wilful misrepresentation (/). 
 
 If a purchaser, choosing to judge for himself, does not 
 avail himself of the knowledge or means of knowledge 
 open to him or to his Agent, he cannot be allowed to say 
 he was 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 {g). 
 
 Thus then there are cases of two sorts, in which, though 
 a man is deceived, he can maintain no action. The first 
 class of cases is, where the affirmation is that the thing- 
 sold has not 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) n. Nude 
 assertion ; such as the party deceived may exercise his own 
 judgment 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 lacJies if he is 
 deceived (//). 
 
 Assertions of this sort are what is called ^^ Dealing Tal/i," 
 such as is used more or less by Shopkeepers and Dealers 
 of every description. For instance, a Horsedealer tells his 
 customer that a Horse worth 40/. is "worth a hundred 
 guineas," or that a bad, clumsy goer, has "fine action," 
 
 Q. B. 597; 40 L. J., Q. B. 221 ; 
 25 L. T., N. S. 329. 
 
 {e) Attwood V. Small, 6 C. & F. 
 444, 445 ; Bch7i v. Kemble, 7 C. B., 
 N. S. 260. 
 
 (/) Attwood V. Small, G C. & F. 
 444, 445 ; Broom's Maxims, 4th ed. 
 756. 
 
 iff) Attwood V. Small, 6 C. & F. 
 232. 
 
 (k) 1 Rol. Abr. 101 ; Yelv. 20 ; 
 1 Sid. 146 ; Cro. Jac. 386 ; £ailet/ 
 V. Menrll, 3 Bulst. 95 ; and per 
 Grose, J., Faslsij v. Freeman, 3 
 T. R. 54. 
 
FRAUDULENT CONTRACTS: 153 
 
 or is a "clever little Horse." And a person who allows 
 himself to be imposed upon by siieb assertions has no 
 remedy against the vendor. Thus it appeared in the fol- 
 lowing case that J. S., who had a tenn for years, affirmed 
 to J. I)., that the term was worth 150/. to be sold, upon 
 which J. D. gave 150/. and afterwards 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 w^as only a naked assertion that the term was worth so 
 much, and it was the plaintiff's folly to give credit to such 
 assertion. Bnt if the (hfcndant had warranted 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 (/). 
 
 The Court will not set aside a deed on the gromid of Collateral 
 previous or collateral fraud, unless the party is deceived ^'^'^^^ 4°^'^ 
 with regard to the execution of the deed itself, for the ^eed. 
 representation must be as to matters material, and not 
 collateral only, to the contract (/•). 
 
 If the Folly of a contract be extremely gross, the circimi- A foolish 
 stance will tend, if there be other facts in corroboration, to ^^^'S''^^"- 
 establish a case for relief on the ground of Fraud ; but 
 mere folly and weakness, or want of judgment, will not 
 defeat a contract, even in Equity (/). 
 
 But a vendor is miquestionably liable to an action of Representa- 
 Deceit, if he fraudulently misrepresents the quality of the {jg^j^tTuI'' *° 
 thing sold to be other than it is in some particulars, which 
 the buyer had not equal means with himself of know- 
 ing [in) ; and the mere possession of the means of know- 
 ledge by the vendee does not necessarily, under all 
 circumstances, oust the vendor's liability for a false and 
 fraudulent representation (>?). 
 
 Certain misrepresentations about a Horse on Sale at a Made before 
 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 
 
 (() Harviij V. Young, Yelv. 20; (l) 3Illiies v. Coiclei/, 8 Vrice, 62Q; 
 
 cited per Grose, J., Fasleij v. Free- Prcbhle v. Boyhiirst, 1 Swanst. 329; 
 
 man, 3 T. E. 55. IJ'illan v. Carter, before Martin, B., 
 
 {k) Feret v. Mill, 23 L. J., C. P. Lancaster Spr. Ass. 1852. 
 
 185; Canham v. Barry, 2-i L. J., (/«) Per Lord Ellenborough, C.J. , 
 
 C. P. 100. See, too, per Black- Vernon v. F'eys, 12 East, 637. 
 
 burn, J., H. v. Saddlers'' Co., 32 («) Fcrrier v. Peacock, 2 F. & F. 
 
 L J., Q. B. 337, 343. 717. 
 
154 
 
 FRAUDULENT CONTRACTS. 
 
 Made by a 
 bidder at au 
 Auction. 
 
 Representa- 
 tion not 
 known to be 
 true. 
 
 A well- 
 grounded 
 belief. 
 
 Delusion 
 affecting the 
 Contract. 
 
 Representa- 
 tion to pre- 
 vent inquiries. 
 
 plaintiff iDOUglit him, and lie turned out to be unservice- 
 able. It was held that the plaintiff was entitled to recover 
 damages from the defendant, as the Jiuy were satisfied 
 that the defendant knew of the falseness of the representa- 
 tions, and that the fact of the sale haA'ing been made by 
 an Auctioneer made no difference (o). 
 
 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 hy, the late 
 owner of the article, it was held that such pui"chaser did 
 not acqiure any property against the vendor imder such 
 sale [j)). 
 
 It signifies nothing A\'liether a man represents a thing 
 to be different from what he Icnoics it to be, or whether he 
 makes a representation which he does not k)ww at the time 
 to be true or false, if in point of fact it funis out to be 
 false (q) ; because there may undoubtedly be a fraudulent 
 Representation, if made dishonestly, of that which the 
 party does not know to be initrue, if he does not know it 
 to be true, or at least has not good grounds for helieving it 
 to be true (r). 
 
 But to render a person liable to an action for false and 
 fraudulent representations, it is not enough to show that 
 the representations are false. If he acted upon a fair and 
 reasonably well-grounded belief that they were true, he is 
 not responsible for them, however unfounded they may 
 tmni out to be is). 
 
 It has been held that even the mere knowledge that the 
 other party is labouring under a Delusion which materially 
 affects the Contract, wdien the vendor suffers him to be 
 operated upon by that Delusion, makes the contract 
 
 void(0. 
 
 The seller, however, is undoubtedly liable, where he 
 makes such 3Iisrepresentation as induces the buyer to for- 
 bear making those inquiries, which for his own seciu'ity 
 and advantage he would otherwise have made (u). 
 
 (o) Bardell v. Spinhs, 2 C. & K. 
 646. But see Hopkins v. Tanqmray, 
 23 L. J., C. P. 162, ante, p. 140. 
 
 (j^j) Fuller V. Abrahams, 3 B. & 
 Bing. 116. 
 
 (-7) Per Lord Mansfield, C. J., 
 Schneider v. Heath, 3 Camp. 508. 
 
 [r) Per Parke, B., Taylor v. Ash- 
 ton, 11 M. & "W. 413; and per Lord 
 
 Cairns in Eeesc Hirer Silrer Mining 
 Co. V. Smith, L. R., 4H. L. 64, 69; 
 39 L. J., Ch. 849. 
 
 (.s) Shreivsbary v. Blount, 2 Scott, 
 N. R. 588. 
 
 {t) mil V. Gray, 1 Stark. N. P. 
 C. 434. 
 
 ('() Per Lord EUenborough, C. J., 
 T< rnon v. Keys, 12 East, 367. 
 
FRAUDULENT CONTRACTS. 155 
 
 Where a Representation is made and a Fraud practised Eepresenta- 
 througli the medium of a third party, and damage has re- tjon through a 
 suited, the vendor is liable to an action ; and this was so ^"^ ^^ ^' 
 held by the Comi: 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 
 agreed to piu-chase it, that the Keceipts 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 pm'chaser of it, and afterwards 
 found that the receipts had not been woi-th so much (r). 
 
 Where a third party makes a fraudulent Representation Representa- 
 with regard to an article about to be sold, he is liable to *|^" J'J' ^ 
 the piu'chaser. Thus where the plaintiff ^\'as about piu'- 
 chasing a Horse from a party who waiTanted him sound, 
 and who, for the corroboration of his statement, referred 
 him to the defendant, who warranted the Horse sound in 
 the wind : Mr. Baron Alderson said, " the merits are, 
 whether or not the defendant made a Fraudutcnt Repre- 
 sentation. It is proved that he did. He comes here to 
 defend himself from the charge of having made a Fraudu- 
 lent Pepresentation on the occasion of the sale." The 
 Jury found a verdict for the j>laintiff («•) . 
 
 An action however does not lie for a false Representation, A boudfdc 
 whereby a party being induced to piu-chase the subject- Representa- 
 matter of the Pepresentation even from a third party, has 
 sustained damage, if the Representation appear to have 
 been made bond fide mider a reasonable and well-groimded 
 belief that the same was true, as the Pule Caveat emptor 
 applies (a-). 
 
 A person should be careful how he gives credit to any Representa- 
 statement made by a tliird party as to the character and tjonasto 
 ability of the person ^\itli whom he is about to deal ; be- ^^ ^ ' 
 cause under 9 Geo. 4, c. 14, s. 6, "no action lies to charge a 
 person upon or by reason of any Representation ov 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 
 
 [v) Pllinoi-ev. IIoodjb'B'mg.'N.G. (iv) Mash v. Densliam, 1 M. & 
 
 97 ; see also Swift v. Wintcybotiom, Rob. 4-12. 
 
 L. R., 8 Q. B. 244, 253 ; 42 L. J., (.*:) Shreivshury v. Blount, 2 M. & 
 
 Q.B.lll; Swift v.Jeu-sbiir!/, L.R., G. 475; S. C. 2 Snott, N. R. 588 ; 
 
 9 Q. B. 301; 43 L. J., Q. B. 56; Haijcmft v. Creasy, 2 East, 92; 
 
 Richardson v. Sylrcslcr, L. R., 9 Q. Oniirod v. H/ith, 14 M. & W. 6G4. 
 B. 34; 43L. J.,Q. B. 1. 
 
1-56 
 
 FRAUDULENT CONTRACTS. 
 
 Sale of goods 
 "with all 
 faults" ex- 
 cludes latent 
 defects. 
 
 Unless there 
 be an express 
 Warranty. 
 
 Or Fraud is 
 
 [tliere]iipoii, unless sueli Representation, &c. be made in 
 n-riting, signed by the part j to be charged there^\ith." The 
 signature of an agent mil not satisfy this section (y) . And 
 one pai-tner signing in the name of and by the express au- 
 thority of his lirm will make himself only liable (s) . 
 
 It is now well settled {a) that if goods are sold expressly 
 " mth all faults," the seller is not boimd to disclose latent 
 defects, and is therefore not liable to an action in respect 
 of them, although he was aware of them at the time of sale, 
 unless there be an express Warranty against some particu- 
 lar defect, or luiless some ai-tifice or fraud was practised to 
 prevent the vendee from discerning such defects ; there- 
 fore, in effecting such a sale of a Horse, it is best for the 
 seller to say nothing, and let the piu'chaser inspect the 
 Horse, and so judge for himself. 
 
 So far as the description goes, there is an express War- 
 ranty against any particular defect, which is excluded by 
 that description. Accordingly, where an advertisement for 
 the sale of a ship described her as a " copper-fastened ves- 
 sel," adding that the vessel was to be taken "Avith all faults, 
 A\ithout any allowance for any defects whatsoever ; " and 
 it appeared that she was only partially copper-fastened ; it 
 was held that the vendor was liable on the groimd that she • 
 was warranted to be cop2:)er- fastened, and that " with all 
 faidts" applies to such faults only as a copper-fastened ves- 
 sel may have (/'>). But where a vessel, which was described 
 as "teak-built" was sold, "to be taken with all faults," 
 " with any allowance for any defect or error whatsoever," 
 and it turned out that she was not "teak-built," it was held 
 that this was a misdescription of the vessel, which came 
 within the term " error," and that the vendor was not 
 liable as for a breach of Warranty (c) . 
 
 At one time Lord Keuyon held that a seller iras hound 
 to disclose to the buyer all latent defects kno^Ti to him, 
 and that bujdng '■'' ivith ail faults" v^'ithoiit a Warranty 
 must be understood to relate only to those faults which 
 the buyer could have discovered, or with which the seller 
 was unacquainted {d). 
 
 However, Lord Elleuborough overruled this decision, 
 
 {>/) Swiff. V. Jewshunj, L. R.., 9 
 Q. B. 301, Ex. Ch., reversing 6'. C. 
 siibnoin. Sicift y. Wbtterbottom, "Li. 
 R., 8 Q. B. 244. 
 
 {z) 3IasoH V. WUIinim, 28 L. T., 
 N. S. 232, February, 1873. 
 
 (rt) Chit. Contr. 10th ed. 418. 
 
 \b) Shepherd v. Kain, 5 B. Sc Aid. 
 240. 
 
 (c) Taylor v. Bitllen, 5 Ex. 779. 
 
 (V) Jlle/n.sh V. Motteu.r, Peak. Cas. 
 115. 
 
FRAUDULENT CONTRACTS. 157 
 
 and said, " I cannot subscribe to the doctrine of that used to con- 
 case, although I feel the greatest respect for the Judge ^^^^ them, 
 by whom it Avas decided. Where an article is sold ' uith 
 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 piu^chaser. The very object of 
 introducing such stipulations is to put the purchaser on 
 his guard, and to throw upon him the bmxlen 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 smn he will fetch. 
 I desire my servant to dispose of him, and instead of 
 giving a Warranty of soundness, to sell him ' icith all 
 Faults.' Having thus laboriously freed myself from 
 responsibility, am I to be liable, if it be afterwards dis- 
 covered that the Horse was unsomid ? Why did not the 
 purchaser examine him in the Market, when exposed to 
 sale ? By acceding to buy the Horse ' u-ith 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 tenns 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, imless the seller by positive means renders ' it 
 impossible for the purchaser to detect latent faidts' " (e). 
 
 Therefore, the meaning of a Horse being sold " icith 
 all /lis Faults " is, that the pm'chaser shall make use of 
 his eyes and understanding to discover what Faults there 
 are ; 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 
 purchaser might recover (^7). 
 
 It would appear from this case, that where a Horse has 
 been sold ^Ucith all Ids faults,''' and artificial means have 
 been used to conceal some Defect, the vendor would be 
 liable to the purchaser for such conduct. 
 
 ((') Bagleliole v. Walters, 3 Camp. 784-. 
 loG. {g) Case cited by Gibbs, J., in 
 
 (/) Pickering v. Doivson, 4 Taunt. Fickering v. Doivson, 4 Taunt. 785. 
 
158 FRAUDULENT CONTRACTS. 
 
 Plugging, &c. For instance, tlie practice of Plugging, ^'C, or perhaps 
 the artificially filling up a Sandcrack (//) or Thrush (/) 
 (such devices being, without doubt, used to deceive the 
 purchaser) would each be a sufficient ground for an action 
 for Deceit ; because a man may act a Lie or Frnudulent 
 Representation without speaking a word, and .the injury 
 under such circumstances would be Damage as the result 
 of a Fraudulent Bej) re sent at ion coupled with dealing. Thus 
 where a Ship was sold " witli all her Faults,^'' but means 
 had been taken Fraudulentlii to conceal some Defects in 
 her bottom, the vendor was held liable {j). 
 
 But where animals are sold "with all Faults," it makes 
 no difference whether the sale takes place in a public market 
 or privately, provided that there is no fraudulent repre- 
 sentation. The mere exposure for sale of animals in a 
 public market is not evidence of fraudulent representation. 
 Ward V. Thus, in Ward v. Hobhs (/.•) the defendant sent for sale, to 
 
 Hobbs. a public market, pigs which he knew to be infected with 
 
 a contagious disease ; they were exposed for sale subject 
 to a condition that no Warranty would be given, and no 
 compensation would be made in respect of any fault. No 
 verbal representation was made by or on behalf of the 
 defendant as to the condition of the pigs. The plaintiff, 
 having bought the pigs, put them with other pigs, which 
 became infected ; some of the pigs bought from the de- 
 fendant, and also some of those with which they were put, 
 died of the contagious disease. The plaintiff having sued 
 to recover damages for the loss which he had sustained, 
 the Court of Appeal held (reversing the judgment of the 
 Queen's Bench Division), that, although the defendant 
 might have been guilty of an offence against the Con- 
 tagious Diseases (Animals) Act, 1869, he was not liable to 
 the plaintiff, for that his conduct in exposing the pigs for 
 sale in the market did not amount to a representation that 
 they were free from the disease. 
 Contractmade Fraud does not make a contract void, but only voidable, 
 voidable by ^^ ^|^g election of the party defrauded, who has the option 
 
 (/() Sandcrack, ante, p. 101. reversing judgment of Queen's 
 
 (J) Thrush, ante, p. 108. Bench Division, L. R., 2 Q. B. D. 
 
 \j) Schneider v. Hetith, 3 Camp. 331 ; 46 L. J., Q. B. 473; 37 L. T., 
 
 508 ; and Jones v. Bright, 3 M. & N. S. 511 ; 25 W. R. 585; affirmed 
 
 p. 175. by the House of Lords, L. E.., 4 
 
 'ik) Ward V. Hobbs, L. R., 3 Q. B. App. Cas. 13; 48 L. J., Q. B. 281; 
 
 D.150; 47L.J.,Q.B.90; 37L.T., 40 L. T., N. S. 73; 27 W. R. 114. 
 
 N. S. 654; 26 W. R. 151— C. A., 
 
FRAUDULENT CONTRACTS, 159 
 
 of acquiescing in it, or of avoiding it (/). But until the 
 party defrauded disaffirms the contract it remains good {m) . 
 
 If a party he induced to purchase an article hy fraudulent Where Fraud 
 representations of the seller respecting it, he may treat it '^^ practised 
 as a good contract, or the moment lie chooses to declare it Buyer, 
 void, he may recover the price from the seller (o). 
 
 If, when it is avoided, nothing has occurred to alter Except where 
 the position of affairs, the rights and remedies of the ^.*^ works m- 
 parties are the same as if it had been void from the ■'"'^ ^°^' 
 beginning ; but if any alteration has taken place, their 
 rights and remedies are subject to the effect of that 
 alteration {p). Thus where the plaintiff was induced by 
 the Fraud of the defendants to become a shareholder in 
 a company, it was held, that as he had in the interval 
 between the making of the contract and the discovery of 
 the Fraud, received dividends, and otherwise dealt with 
 the jiroperty, he could not treat the contract as void, and 
 sue for money had and received ; but, though he could 
 not rescind the contract, inasmuch as such rescission would 
 work injustice, yet he might bring an action on the 
 deceit, and recover his real damages {q). 
 
 But if after discovering the Fraud he continue to deal Where he 
 with the article as his own, he cannot recover back the jpl^Q^^fw? 
 money from the seller (r). And the right to repudiate article. 
 the contract is not afterwards revived by the discovery 
 of another incident in the Fraud (r). 
 
 A sale of goods effected by the Fraud of the buyer is }Vhere Fraud 
 not absolutely void, but the seller may elect to treat it as l^^jo^^t^e*^*^ 
 a valid transaction (s), or has a right to treat the contract Seller, 
 as a nullity, and recover the value of the goods in an 
 action of Trover (/). 
 
 If he does not treat the sale as void before the buyer Resale by the 
 has resold the goods to an innocent vendee (.s), or pledged ^^g^ent ^^ 
 them for a hond fide advance {u), the property will pass Vendee, 
 to the vendee. 
 
 {!) Murray v. Mann, 2 Ex. 541 ; (17) Clarke v. Dickson, 27 L. J., 
 
 TJrquhart v. jVarp/icrson, L. R., 3 Q. B. 223. 
 App. Cas. 831; Story on Sales, 126. (;•) Campbell v. Fleming, 1 A. & 
 
 [m) Dawes v. Harness, L. R., 10 E. 40. 
 C. P. 166; 44 L. J., C. P. 194; (.s) White v. Garden, 20 L. J., 
 
 Cloiigh V. London and North Western C. P. 166. 
 
 Rail. Co., L. E,., 7 Ex. 26, 34; 41 (t) Ferguson v. Carrington, 9 B. 
 
 L. J., Ex. 17; 25 L.T., N. S. 708. & C. 59; S. C. 3 C. & P. 457; load 
 
 . {0) Murray y. Mann, 2 Ex. 541. v. Green, 15 M. & W. 216, 221. 
 
 [p) See Broom's Maxims, 4th ed. {a) lungsford v. 3ferry, 11 Ex. 
 
 293; and per Blackburn, J., R. v. 577. 
 Saddlers' Co., 32 L. J., Q. B. 343. 
 
160 
 
 FRAUDULENT CONTRACTS. 
 
 Contract with 
 iuteut to cheat 
 the seller. 
 
 Preconceived 
 design of not 
 paying for 
 goods. 
 
 Question for 
 the Jury. 
 
 Resale at a 
 reduced price. 
 
 Unstamped 
 agreement 
 admissible to 
 prove Fraud. 
 
 But the property will not pass to an innocent vendee, 
 unless the relation of vendor and vendee existed between 
 the original owner of the goods, and the person who has 
 fraudulently obtained them ; for, if there be not a sale 
 between these parties there is no contract, which the 
 owner can either affirm or disaffirm (.r). Thus where A., 
 who had formerly been B.'s agent, and had been known 
 to the plaintiff as such, after his agency ceased, obtained 
 goods from the plaintiff in the name of B., which he 
 handed over to the defendant, an auctioneer, by whom 
 they were sold : it was held, that the plaintiff might 
 maintain Trover against the defendants, for there was 
 never any sale to A., or any contract between //iiii and 
 the plaintiffs {//). 
 
 All contracts of purchase made with the fraudulent 
 intent to cheat the seller, and dispose of the goods at a 
 swindling price, to raise money, are held void (2). 
 
 It would appear that where the buyer pmx-hases goods 
 with the preconceived design of not paying for them, such 
 sale does not pass the property therein {a). Thus where 
 some Sheep had been bought under such circumstances, 
 Chief Justice Abbott held that if the buyer contracted for, 
 and obtained possession of the Sheep in question, with a 
 preconceived design of not paying for them, that would be 
 such a fraud as would vitiate the sale and prevent the pro- 
 perty from passing to him (o). 
 
 Whether the buyer has obtained possession of the goods 
 with such a preconceived design, is a question for the 
 J my {b). 
 
 The resale of the goods at reduced prices immediately 
 after the buyer has obtained possession of them, is evidence 
 that such prior transaction is fraudulent (c). 
 
 A dociunent -whieh piu'ports to be an agreement, and 
 is valid upon the face of it, but which is tendered in evi- 
 dence to show the transaction with which it is connected 
 to be a Fraud, is admissible in evidence, although wa.- 
 stamped {d). 
 
 (.r) Kiiiffsford Y. Mernj, 26 L. J., 
 Ex. 83. 
 
 (y) Higgons v. Barton, 26 L. J., 
 Ex. 342. 
 
 (r) Gibson v. CtvrutJiers, 8 M. & 
 W. 346. 
 
 (r?) See Irving v. Motley, 7 Bing. 
 551 ; Load v. Green, 15 M. & W. 
 221 ; J'erguson v. C'arrington, 9 B. 
 
 & C. 59 ; see Chit. Contr. 11th ed. 
 382. 
 
 (i) Uarl of Bristol v. Wilsmore, 
 1 B. & C. 521. 
 
 (c) Ferguson v. C'arrington, 9 B. 
 & C. 59 ■ S. C. 3 C. & P. 457. 
 
 (d) Holmes v. Sixsmith, 7 Ex. 
 802 ; Reg. v. Gompertz, 9 Q. B. 
 824. 
 
FRAUDULENT CONTRACTS. 161 
 
 If a buyer, under terms to pay for goods on delivery, Payment by a 
 obtains possession of them by giving a Cheque, which is Cheque which 
 afterwards dishonoured, he gains no property in the goods, ifonoured 
 if at the time of giving the Cheque, he had no reasonable 
 ground to expect that it would be paid {e). 
 
 The contract of an infant, however fair and conducive Fraud of an 
 to his interests it may be, is not binding on him, unless it Iiif^nt. 
 be for necessaries. By the Common Law, however, the 
 contracts of an infant, other than for necessaries, were for 
 the most part only voidable. But now, by the 37 & 38 ^ 
 Yict. c. 62, s. 1, all contracts, whether by specialty or by 
 simple contract, entered into by infants for the repayment 
 of money lent or to be lent, or for goods supplied or to be 
 supplied (other than contracts for necessaries), and all ac- 
 counts stated wdth infants, are made absolutely void ; pro- 
 vided always, that the above enactment " shall not invalidate 
 any contract into which an infant may, by any existing or 
 future statute, or by the rules of Common Law or Equity, 
 enter, except such as are now by law voidable " (/) . And it 
 was no answer at law to a plea of infancy, that the defen- 
 dant, at the time of entering into the contract, fraudulently 
 represented himself to be of full age ; and that the other 
 party believing this representation, and on the faith thereof, 
 contracted with him {g). Nor did these facts form the sub- 
 ject of a good replication, on equitable grounds, to a plea of 
 infancy (li), although in such a case a Court of Equity 
 might grant relief against the infant on the ground of 
 fraud (/). 
 
 A husband is not liable for any fraud of the wife. Of a mamed 
 which is directly connected with and dependent upon a Woman, 
 contract (/r). In a case in which an action had been 
 brought against a husband and wife for a false and frau- 
 dulent representation by the wife to the plaintiffs, that 
 she was sole and unmarried at the time of her signing 
 a promissory note as surety to them for a third person, 
 whereby they were induced to advance a sum of money 
 to that person, it was held that an action would not lie. 
 And Pollock, 0. B., said, " A. feme covert is imquestionably 
 
 ie) Hawse V. Crou-e,'R.&M. Hi; {i) Nelsott v. StocJcer, 28 L. J., 
 
 Earl of Bristol v. Wilsmore, 1 B. & C. 760. 
 C. 521. {k) Liverpool Adelphi Loan Asso- 
 
 {/) Chit. Contr. 10th ed. 138. ciation v. Fairhurst, 9 Ex. 422 ; 
 
 (V) Johnson v. Tije, 1 Sid. 258. Wrifjht v. Leonard, 30 L. J., C. P. 
 
 {h) Bartlett v. Wills, 31 L. J., 3G5. 
 Q. B. 57. 
 
 O. M 
 
1G2 FRAHDITLENT CONTRACTS. 
 
 incapable of binding- herself by a contract ; it is altogether 
 
 void, and no action will lie against her husband or herself 
 
 for the breach of it. But she is undoubtedly responsible 
 
 for all torts committed by her on any person, as for any 
 
 other personal wrongs. But when the fraud is directly 
 
 connected with the contract vnth the wife, and is the 
 
 means of effecting it, and parcel of the same transaction, 
 
 the wife cannot be responsible, and the husband be sued 
 
 for it together with the wife " (/). 
 
 Where a con- Equity will give relief where there is no reasonable 
 
 is^oW^nd^'^*^ equality between the contracting parties, c. ^., in a case in 
 
 weakminded. which the vendor, being an aged, illiterate, weakminded 
 
 man, though not a person absolutely incapable of managing 
 
 his own affairs, executed a deed of conveyance of his 
 
 property for a grossly inadequate consideration (m) . 
 
 Drunkenness AVliere a party, when he enters into a contract, is in 
 
 h!<^ Trf '^'^'^*" '^^^""'^ ^ state of drunkenness as not to know what he is 
 
 ° ' doing, and particularly when it appears that this was 
 
 known to the other party, he cannot be compelled to 
 
 perform the contract (n). 
 
 Goods kept Ly If ^ however, a man buys a Horse when so cbunk as not 
 
 sober*^ ^ ^^'^ ^° know what he is doing, but keeps it after he is sober, he 
 
 cannot set up his ch'imkenness as an answer to an action for 
 
 the price (o). 
 
 (;) See note (/,), ante. {ii) Gore v. Gibso)/, 13 M. & W. 
 
 {>n) Longmate v. Ledger, G Jur., G2G. 
 N. S. 481. See also Roberts' (o) See Chit. Contr. 10th ed. 
 
 Principles of Equity, 3rd ed. 79. 137 ; Gore \. Gibson, 13 M. & W. 
 
 626. 
 
( 1G3 ) 
 
 CHAPTER VIII. 
 
 BREACH OF WARRANTY. 
 
 Beeach of Warranty. 
 Buyer neither hound to tender 
 
 the Horse nor give Notice .... 163 
 Seller not hound to take hack the 
 
 Horse id. 
 
 Unless the Contract was cxe- 
 
 cuiury 164 
 
 Street v. Blay id. 
 
 Judgment of the Court of King'' s 
 
 Bench id. 
 
 Lord FJdon'' s Opinion dis- 
 cussed 165 
 
 Evidence in Mitigation of 
 
 Damages 166 
 
 Unfitness for a particular pur- 
 pose id. 
 
 An intermediate Profit id. 
 
 Ads of Ownership inconsistent 
 
 u-ith Trial 167 
 
 Confirmed hy a later Case .... id. 
 Goods are returnahle where there 
 
 is Fraud 168 
 
 But not for non-correspondence 
 with Sample id. 
 
 Agreement that a Horse is to be 
 returned if Unsound 168 
 
 Head v. Tattersall 169 
 
 Or unsnitahle id. 
 
 Or unfit for a particular purpose 170 
 
 Vcrhal Offer after Sale to take' 
 hack the Horse id. 
 
 Where Goods should he returned 
 immediately id. 
 
 Or the Contract becomes com^jlete id. 
 
 jrhcre Buyer should tender the 
 Horse , id. 
 
 Sale after Tender 171 
 
 Not'ice instead of Tender id. 
 
 Length of Time before Notice , . id. 
 
 Seller should have the Horse ex- 
 amined 172 
 
 Breach of IFarranty no Defence 
 to an Act'io7i on a Bill of Ex- 
 change id. 
 
 Unless there be a total Failure 
 of Consideration id. 
 
 Sale hy Order of Court id. 
 
 BREACH OF WARRANTY. 
 
 Where a Horse has been sold warranted Sound, wliicli 
 it can be clearly proved was Unsound at the time of Sale, 
 the seller is liable to an action on the Warranty, without 
 either the Horse being returned or Notice given of the 
 Unsoundness. And in a case where there was a breach of 
 Warranty, Lord Loughborough said, " No length of time 
 elapsed after the sale "wdll alter the natiu-e of a contract 
 originally false. It is not necessary that the Horse should 
 be retm-ned to the seller or that Notice should be given" {a). 
 Where a Horse warranted Sound tiu'ns 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 
 
 {n) Fielder v. Starkie, I H. Bin. 17; and see Poulton v. Lattimore, 9 
 B. &' C. 26o. 
 
 m2 
 
 Buyer neither 
 bound to 
 tender the 
 Horse nor 
 a:ive Notice. 
 
 Seller not 
 bound to take 
 back the 
 Horse. 
 
164 
 
 BREACH OF WARRANTY. 
 
 Unless the 
 coutract was 
 executoiy. 
 
 tlie price on tlie ground of breach of Warranty, except 
 in case of fraud or express agreement authorizing the re- 
 turn, or on a mutual rescission of the contract ; but he may 
 give the breach of Warranty in evidence in reduction of 
 damages {b) . 
 
 And it would appear that where a contract is executory/ 
 only, as where a Horse is ordered of a party, and he con- 
 tracts to supply one fit for a certain purpose, the buyer may 
 rescind the contract after he has received the Horse, if he 
 does not answer that piu-pose, provided he has not kept 
 it longer than was necessary for trial, or exercised the 
 dominion of an owner over it, as by selling it. 
 Sired V. Dlifif. This was decided in Street v. Btai/ (c), 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 plain- 
 tiff, on the 2nd of February, sold a Horse to the defendant 
 for 43/. with 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 clay, parted with it in 
 exchange to one Osborne ; and Osborne, in two or three 
 days afterwards, sold it to the defendant for 30/. No 
 Warranty appeared to have been given on any of the three 
 last sales ; the Horse was, in fact, Unsound at the time of 
 the first sale, and on the 9th of February the defendant 
 sent the Horse back to the plaintifi:'s premises, requiring 
 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 cir- 
 cumstances, had a right to retm-n the Horse, and thereby 
 exonerate himself from the pa^ymient of the whole price ? 
 
 After taking time to consider, Lord Tenterden, in de- 
 livering the judgment of the Coiui, said, " It is not neces- 
 sary to decide whether in any case the purchaser of a 
 speelfc chattel, who, having had an opportmiity of exercis- 
 ing his judgment upon it, has bought it with a WaiTanty 
 that it is of any particular quality or description, and 
 actually accepted and received it into his possession, can after- 
 wards, upon discovering that the Warranty has not been 
 
 Judgment of 
 the Court of 
 Kin 2-' s Bench 
 
 {li) According to the law of 
 Scotland, it appears that there 
 "would be an absolute right to 
 return the horse npon the discovery 
 of the breach of warranty, without 
 any specific stipulation to that 
 effect. Coustoii v. Chapman, L. R., 
 
 2 H. L. (S. C), 250, per Lord 
 Chelmsford. 
 
 (c) Street v. Blay, 2 B. & Ad. 
 456 ; and see Bau-son v. CuUis, 10 
 C. B. 523; and OUiraut v. Bailoj, 
 5 Q. B. 288. 
 
BREACH OF WARRANTY. 1G5 
 
 complied witli, of liis own will only, without the concur- 
 rence of the other contracting party, retiu-n 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 piu-ehase." 
 
 " There is indeed authority for that position. Lord Lord Eldou's 
 Eldon, in the case of Curtis v. Hannay{d), is reported to "{Jg^gj'' •^'" 
 have said, that he took it to he clear law, that if a person 
 purchases a Horse which is warranted Sound, and it after- 
 wards tiu"ns 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 between the 
 value of a Sound Horse and one with such defects as ex- 
 isted at the time of the Warranty ; or he might return the 
 Morse 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 retm^hed 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 would have been in, if retm-ned immediately 
 after the discovery, the purchaser would have no defence to 
 an action for the price of the article." "It is to be im- 
 plied (says Lord Tenterden) that he would have a defence 
 in case it were returned in the same state, and in a reason- 
 able time after the discovery. This dictum has been adopted 
 in Mr. Starkie's excellent work on the Law of Evidence (r?), 
 and it is there said that a vendee may in such a case re- 
 scind 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 
 has no right, upon the breach of the Warranty, 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. 
 
 {d) Curtis v. Sannay, 3 Esp. 83. (e) Starkie ou Evidence, part iv. 
 
 p. 645. 
 
166 
 
 BREACH OF WAKRANTY. 
 
 Evidence in 
 mitigation of 
 damages. 
 
 Unfitness for 
 a particular 
 purpose. 
 
 An intcrme 
 diate profit. 
 
 lu Wcfiton V. Boicncs (/), Totcers v. Barret i {(j), Faijnc v. 
 Whale {/i), Power v. Well^ (i), and Emanuel v. Dane (J), 
 the same doctrine was applied to an Exchange mth a 
 WaiTanty 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 certainly have 
 been always acted upon, it is clear that the purchaser 
 cannot by his otsti act alone, unless in the excepted cases 
 above mentioned, revest the property in the seller, and 
 recover the price when paid, on the ground of the total 
 failui^e of consideration ; and it seems to foUoAv that he 
 cannot by the same means protect himself from the pay- 
 ment of the price on the same ground." 
 
 " On the other hand the cases have established, that the 
 breach of the Wan-anty may be given in eATidence in miti- 
 gation of damages, on the principle, as it should seem, of 
 avoiding circuity of action (/.-) ; and there is no hardship 
 in such a defence being allowed, as the plaintiff ought to 
 be prepared to prove a compliance vdih 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 \\'ith a Wan-anty, may not have a 
 right to retiu'n it, the same reason does not apply to cases 
 of executory contracts, where an article, for instance, is 
 ordered from a manufacturer, who contracts that it shall 
 be of a certain quality, or fit for a certain purpose, and the 
 article sent as such is never completely accepted by the 
 pai-ty ordering it. In this and similar cases the latter may 
 retmm it as soon as he discovers the defect, provided he has 
 done nothing more in the meantime than was necessary to 
 give it a fan- trial" (/). 
 
 " The observations above stated are intended to apply 
 to the pm'chase of a certain specific cJiattel, accepted and 
 received by the vendee, and the propeiiy in which is com- 
 pletely and entirely vested in him." 
 
 " But whatever may be the right of the piu-chaser to 
 retiu-n such a waiTanted article in an ordinary case, there 
 
 (/) Weston V. Downes, Doug. 23. 
 
 {g) Toiccrs v. Barrett, 1 T. E. 
 133. 
 
 (7() Payne v. Wlialc, 7 East, 27-1. 
 
 (i) Poiver v. JFells, Doug. 34, n. 
 
 (j) Etnaniiel v, Dane, 3 Camj). 
 299. 
 
 {k) Cormach v. GUlis, cited 7 East, 
 480; Kinffx. Boston, 7East, 481,n. ; 
 and see Dawson v. CoUis, 10 C. B. 
 532. 
 
 (/) OJccU V. Smith, 1 Stark. N. P. 
 C. 107. 
 
BREACH OF WARRANTY. 167 
 
 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 property 
 to another, and where he has derived a pecimiary benefit 
 from it. These circimistances concur in the present case ; 
 and even supposing it might have been competent for the 
 defendant to return this Horse, after having accepted it 
 and taken it into his 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 o^Miership wholly inconsistent with Acts of 
 the purpose of trial, and which are conclusive as^ainst the o"^^?'^*^'? ^^- 
 defendant that the particular chattel was his own ; and it -with trial. 
 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 inter- 
 mediate benefit in consequence of the bargain, which 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, where the question of return was con- Confirmed hy 
 sidered, the law laid do^^-n by the Court of Queen's a later case. 
 Bench was confirmed by the Court of Exchequer. And 
 Mr. Baron Bay ley said, " One party cannot rescind the 
 contract unless the other party agrees to it. The contract 
 of Warranty was open, and entitled the plaintilf to re- 
 cover damages for the breach of it, but did not entitle him 
 to retiu-n the Horse, and rescind the contract. In Street 
 V. Bin;/ {m), the law on this subject was fully considered 
 by the Court of King's Bench, and it was there laid do^\-n 
 that a purchaser has no right to return the article, unless 
 there has been a condition in the original contract autho- 
 rizing the return, or the vendor has subsequently consented 
 to rescind the contract, or un-less the case turn out to be 
 one of fraud. According to Poicerr. Welles {n), if the con- 
 tract is still open, you cannot maintain an action for Jloncy 
 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 of Indebitatus assiimp'iit on the ground of the failure 
 of consideration." 
 
 (m) Street v. £la>/, 2 B. i" Ad. («) Foicer v. Welles, Cowp. 818. 
 
 4.56. 
 
168 
 
 BREACH OF WARRANTY, 
 
 Goods are re- 
 turnable 
 where there is 
 fraud. 
 
 But not for 
 n on -corre- 
 spondence 
 M ith sample. 
 
 Agreement 
 that a Horse 
 is to be re- 
 turned if 
 unsound. 
 
 And Lord Lyndluu'st said, " There was a proposition in 
 this ease to rescind the contract, which the defendant was 
 at first willing to accede to, bnt the agreement to rescind 
 was never completed, therefore the contract remained open. 
 One party alone could not, hy his own act, rescind the con- 
 tract. The case of Street v. Bla// (o) seems to have been 
 very much considered. That case shows that you cannot 
 treat a contract as rescinded on the groimd of the breach of 
 Warranty, except there was an original agreement that the 
 party should be at liberty to rescind in such case, or unless 
 both parties have consented to rescind it. According to 
 that decision, which is the most recent, yoiu' remedy was an 
 action for damages " (^;) . 
 
 In an unconditional Warranty, the only gromid on 
 which goods are retm-nable is that of Fraud. And Mr. 
 Baron Parke, referring to the case of Street v. JB/a// (o), 
 said, " When a Horse is warranted sound, and turns out 
 otherwise, the purchaser has no right to retiun him, im- 
 less the Warranty was fraudulent ; his only remedy is an 
 action on the Warranty ; this has been latehj settled, but 
 the general impression formerly among the profession, and 
 now amongst all others, is, that the pui'chaser is to return 
 the Horse "(^). 
 
 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 ; Ijut he must trust to a cross-action, or rely on the 
 non- correspondence with sample as a ground for reduction 
 of damages (r). 
 
 But if on the sale of a Horse there be an express War- 
 ranty by the seller that the Horse is sound, free from vice, 
 &c., yet if it be accompanied with an undertaking on the 
 part of the seller to take back the Horse and repay the 
 piu'chase-money, and on trial he shall be found to have 
 any of the defects covered by the Warranty, the buyer 
 must retiu'n him as soon as he discovers any of those 
 defects, imless 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 (s). 
 
 (o) Street v. Bhni, 2 B. & Ad. 
 456. 
 
 (p) Gomjxrfz v. Denton, 1 Or. & 
 M. 207. 
 
 (y) miliard V. OrbeU, Ex. Sit- 
 tings, Jan. 11, 1834. 
 
 {>•) Dan-sou v. CoHls, 10 C. B. 
 523 ; Hayitorth v. Hutchinsou, L. 
 E., 2 Q. B. 447; 36 L. J., Q. B. 
 370, per Cockburn, C. J. 
 
 (s) Adam v. Richards, 2 H. Bla. 
 573. 
 
BREACEl OF WARRANTY. ' 169. 
 
 The right to retiirn a horse sold with a Warranty which 
 proves incorrect, is not taken away by the fact that the 
 buyer, before removing him, might have found out that 
 the Warranty was untrue, or by the fact that the Horse 
 whilst it is in the buyer's possession is injui-ed without his 
 default, by an accident arising from a defect inherent in 
 the Horse (f). Thus, in Head v. Tattersall (n), the plaintiff Head v. Tat- 
 bought a Mare, warranted to have been hunted with ^''^'^"'^^• 
 certain packs of hounds. According to the terms of the 
 sale, the Mare, if objected to, was to be retiu-ned within a 
 specified time. The plaintiff paid for the Mare, but before 
 removing her from the defendant's establishment he was 
 informed by some person that the Warranty was incorrect. 
 The Mare, whilst she was being taken away by the plain- 
 tiff's groom, became restive and received serious injury. 
 The plaintiff retm^ned her within the specified time. The 
 Warranty was in fact untrue. The plaintiff brought an 
 action to recover the price of the Mare, and it was held 
 that nothing that had happened took away the plaintifi''s 
 right to return the Mare, and that he was entitled to 
 succeed. 
 
 "Wliere a Horse is bought on condition that he is to bo Or unsuit- 
 retm-ned if he does not suit, as the contract for sale is not ^^^^* 
 absolute, the Horse may be retm-ned, and an action 
 brought for the price, if paid, as Money had and received 
 to the use of the plaintiff (.?•). But the purchaser must 
 not keep him longer than is necessary for trial, nor ex- 
 ercise the dominion of an owner over him, as by selling 
 him (//). 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, paying 3s. Qd. per diem for 
 the hire of it. This contract was made by the defendant'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, ^^ithout any consent on his part to 
 receive it ; the hire of 3s. Qd. jjer diem was tendered at 
 the same time, which the defendant refused, as w'ell as to 
 return the money. A verdict was found for the plaintiff. 
 
 (;:) Head V. Tattersall, L. R., 7 Ex. 4 ; 25 L. T., N. S. 631. 
 
 Ex. 7 ; 41 L. J., Ex. 4 ; 25 L. T., (x) Towers v. Barrett, 1 T. R. 133. 
 
 N. S. 631. (//) Street v. Blaij, 2 B. & Ad. 
 
 {a) L. R., 7 Ex. 7; 41 L. J., 456. 
 
170 
 
 BREACH OF NVAURAXTY. 
 
 Or unfit for 
 a particular 
 jjurpose. 
 
 Verbal offer 
 after f^ale to 
 take back the 
 Horse. 
 
 "Where goods 
 should be re- 
 turned imme- 
 diately. 
 
 Or the con- 
 tract becomes 
 comjplcte. 
 
 Where buyer 
 
 And a rule to show cause wliy a nonsuit should not lie 
 entered, on the ground that this action for Money had 
 and received would not lie, was discharged (;:;). 
 
 Where goods are bought on condition that they should 
 be retiu-ned, if unsuitable, they would not be returnable 
 on a disapproval, which is not bond fide, or which is 
 merely capricious {a). But in a case in which an order 
 for a carriage had been given and accepted on the express 
 condition that the carriage should meet the approval of the 
 defendant on the score of convenience and taste : it was 
 held that he was entitled (acting bond fide, and' not from 
 mere caprice) to retmii it {b). 
 
 ^Vhere a llorse is bought, warranted fit for a particular 
 purpose, and he proves unfit for that piu'pose, it has been 
 held, that the pmxihaser may retm-n him and bring an 
 action for the price, if paid {c). 
 
 But where, after a Warranty of a Horse as sound, the 
 vendor, in a subsequent conversation said, that // tlie 
 Home irere Ujisoiind (which he denied) he would tal;e it 
 again and return the monet/, 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 (r/). 
 
 A Ijuyer ^^'ho rejects goods sent to him as not being- 
 equal to sample, is bound to retm-n them immediately, if 
 it can be done without injmy to the goods. He has no 
 right to retain them in secmity of his claim of damages 
 for non-performance of the contract {c). 
 
 If goods delivered on " sale or return " be not retm-ned 
 A\ithin a reasonable time, or the retni'n 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 (/). 
 
 Where a Breach of Warranty has taken place it is 
 
 {z) Totccrsv. Barrett, 1 T. R. 138. 
 
 («) Dallman v. King, 5 Scott, 382. 
 
 {h) Andrews v. Bctjidd, 2 C. B., 
 N. S. 779. 
 
 {c) Chanter v. Bopl-'ms, 4 M. & 
 W. 400 ; but see Bauson v. CoUls, 
 10 C. B. 523. 
 
 {d) Paijne v. Whale, 7 East, 274. 
 
 [e) Fadgett v. Maoiair, 15 Court 
 of Sess. 76 (Sco.) ; 6'. C. 2 S. M. & 
 
 P. 41; S. C. 4M. Dig. 187. 
 
 (/■) Moss V. Siveet, 16 L. T. 341; 
 S. C. 20 L. J. 167 (Q. B.); S. C. 
 16 Q. B. 493. In the case of 
 Ste'mthal v. Mijers, Nov. 23, 1855 
 (Cor. Brandt, County Court, Man- 
 chester), a month was held to be a 
 reasonable time to keep a Horse on 
 sale or return. 
 
]5 REACH OF WATIUANTY. 171 
 
 prudent for the Buyer, iu an ordinary case, to tender tlie should tender 
 Horse back to the Seller immediately on discovering sucli *^^ Horse. 
 Breach {g) ; and so entitle himself to be repaid the ex- 
 penses he has been put to in keeping him {h) ; and if the 
 Seller receive him back there Avili l)e a mutual rescission of 
 the original contract (/'). 
 
 But where the Seller refuses to take back the Horse, Sale after 
 he should be sold as soon as possible for the best price that ^^ ^^' 
 can be procured (./). And, perhaps, the best coin-se to be 
 pm'suecl under such circumstances is to sell him by public 
 auction, for in that way tlie true market value, which is the 
 proper measure of damages, can best be discovered [k) . 
 
 If the buyer does not wish to tender the Horse, he Notice in- 
 should at any rate give Notice of the Breach of Warranty, *l*f^'^ °* ^^^' 
 because the not giving Notice Avill be strong presumption 
 against the Buj'er that the Horse, at the time of sale, had • 
 not the defect complained of, and will make the proof on 
 his part much more difficidt (/). And unless the Breach 
 in such case is clearly established, the Jury will naturally 
 suppose that the Horse corresponded with the War- 
 ranty {m). 
 
 The longer the time before Notice, or bringing an Length of 
 action after discovering the Breach of Warranty, the ^otict!^''''*' 
 greater will be the dithculty in making out a good case 
 to a Jmy (/). But where the Breach of Warranty can 
 be clearly proved, the length of time before Notice does 
 not appear material. For the Comt of King's Bench, iu 
 a case where an Unsound Horse Avas sold with a Warranty 
 of Soundness, decided that the Buyer might maintain an 
 action on the Warranty, 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 oa\ti, dmung which period ho 
 had given him physic, and used otlier means to cure him ; 
 ho had also cut the Horse's tail. Tlie case had been tried 
 at the Hereford Assizes before Mr. Justice Parke, who di- 
 rected a nonsuit. However, in the ensuing term a rule was 
 obtained to set that nonsuit aside, and for new trial, the 
 
 ((/) Selwyn's N. P. 8th ed., vol. i. (./) Casuxll v. Coare, 1 Taimt. 
 
 p. 657, tit. Deceit, I. 2, cited in 5GG. 
 
 Chcstevman v. Lamb, 2 A. & E. 129. {_/■) Bbinle v. Earc, 7 C. B., N. S. 
 
 (/() Chrslcrman v. Lanih, 2 A. & 145. 
 
 E. 129 ; Cross v. BartlcU, 3 M. & P. (0 Fielder y. Slarlde, 1 H. Bla. 17. 
 
 542. ('«) Poulton v. Lattimore, 9 B. & 
 
 (i) Weston. V. Dowiics, Doug. 24. C. 265. 
 
172 
 
 BREACH OF WARRANTY. 
 
 Seller sliould 
 have the 
 Horse ex- 
 amined. 
 
 Breach of 
 "Warranty no 
 defence to 
 action on 
 Bill of Ex- 
 chans-e. 
 
 fnless there 
 be a total 
 failure of 
 consideration. 
 
 Sale by order 
 of Court. 
 
 cases of Fielder v. Starlie {n), and Ccmcell v. Coave (o) 
 being referred to. In sho^ving cause, it was contended 
 \hs\k. Fielder v. Starkie [n) was overruled^ or at least qualified, 
 by subsequent cases; but Lord Denman, ^\i\h. the assent of 
 Justices Littledale, Patteson and Coleridge, said, "We 
 think that Fielder v. Starhie is not overruled. The ride 
 must be absolute" {p). 
 
 The Seller, on receiving jNotice of a Breach of War- 
 ranty, should have the Horse examined by some skilful 
 person, and so ascertain the exact state of the case. If 
 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 l:)y the strength of Veterinary 
 testimony. But if he find that there is really no Breach 
 of AVarranty, the e\ddence of the party who has examined 
 the Horse, will place him in a favourable position in case 
 an action should be brought. 
 
 It seems that if a Bill 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, evQU. pro tan to, 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 {q) . 
 
 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 priee of goods, and an action upon the 
 security given for them (/•). 
 
 In an action for the Breach of Warranty of a Horse, an 
 order may be made under Ord. LII. r. 2 (Judicature Act, 
 Sched.), for the sale of the Horse, as "goods which for 
 some just and sufiicient reason it may be desirable to have 
 sold at once" (s). 
 
 (w) Fielder v. Starkie, 1 H. Bla. 
 17. 
 
 (o) Caswell V. C'oarc, 1 Taunt. 566. 
 
 (j)) Pateshall v. Tranter, 3 A. <&: 
 E. 103 ; 8. C. 4 Nev. & M. 649. 
 
 {q) See Chit. Contr. 11th ed. 678, 
 and the cases there cited ; Moggruhje 
 
 V. Jones, 3 Camp. 38 ; Knox v. 
 Whallnj, 1 Esp. 159. 
 
 (/•) See Chit. Contr. 11th ed. 678, 
 and the cases there cited. 
 
 (.s) Bartholomew v. Freeman, L. R. , 
 3C.P.D.316; 38L.T., N. S. 814; 
 26 W. E. 743. 
 
( 173 ) 
 
 CHAPTER IX. 
 
 PLEADING, EVIDENCE AND DAMAGES. 
 
 Pleading and Evidence for the 
 Plaintiff. 
 
 Executory and executed Contracts 174 
 
 Action for Price of Ilorsc .... 175 
 
 Action for not accepting id. 
 
 Resale of the Goods id. 
 
 Action for Detention of Goods .. id. 
 
 Deli very of specific Goods 176 
 
 Action for not delivering id. 
 
 Goods sold and delivered for Pay- 
 ment of the Price 177 
 
 Action maintainable on Rescission 
 
 of Contract by one of the Parlies id. 
 
 Horse sold and delivered id. 
 
 Money had and received for Re- 
 payment of the Price 178 
 
 Z^?ider a- 3Iista]ce id. 
 
 Money had and received for Re- 
 payment of Part of the Price . id. 
 Money had and received for Price 
 
 of Horse wrongfully sold .... 179 
 Money received subject to certain 
 
 Conditions id. 
 
 Action on a Breach ofTFarranty id. 
 
 Action for a False TFarranty . . id. 
 
 Liability of an Infant id. 
 
 Action for Fraudulent Represen- 
 tation 180 
 
 Statement of Facts in an Action 
 
 for Breach of Contract id. 
 
 Statement of Facts in an Action 
 
 for Deceit id. 
 
 Statement of the Consideration .. id. 
 
 If the Horse turn out lucky . . 181 
 
 Words used in the Statement . id. 
 Statement of the Promise or 
 
 Warranty 182 
 
 Condition annexed to the Pro- 
 mise or Warranty id. 
 
 Qualification of the Promise 
 
 or Warranty id. 
 
 The Purchase and the Pay- 
 ment id. 
 
 Statement of the False Warranty 
 
 or Fraudulent Representation . 183 
 
 Statement of the Breach id. 
 
 Statement of the Damage 184 
 
 Proof in Goods bargained and 
 
 sold id. 
 
 Proof in an Action for not ac- 
 cepting 184 
 
 Meaning of Readiness and Wil- 
 lingness id. 
 
 Proof in a)i Action for not de- 
 livering 185 
 
 Proof in Goods sold and delivered id. 
 Proof in Money had and received id. 
 Proof of an Account stated .... 186 
 Proof in an Action for Breach 
 
 of Warranty id. 
 
 Proof in an Action for a False 
 
 IFarranty id. 
 
 Where it is doubtful whether 
 
 False Warranty is p) oveable . , id. 
 Proof in an Action for Fraudu- 
 lent Representation 187 
 
 Proof of the Bargain and Sale .. id. 
 
 Proof of the Consideration id. 
 
 Proof of Payment of the Price. . id. 
 Appropriation of the Money 
 
 tendered 188 
 
 Hardiiigham v. Allen id. 
 
 Proof of the Promise or War- 
 ranty id. 
 
 A Warranty not contained in 
 
 the Receipt 189 
 
 Warranty in a Receipt not 
 
 always conclusive id. 
 
 Written Warranty requires 
 
 no Agreement Stamp id. 
 
 Where Authority to ivarratit 
 
 need not be proved 190 
 
 IJ'herc Authority to ivarrant 
 
 must be proved id. 
 
 Proof of Power to rescind id. 
 
 Proof of Fraudulent Represen- 
 tation id. 
 
 Proof of the Breach of Warran ty 191 
 Notice of the Nature of the 
 
 Unsoundness id. 
 
 Fvidcnce as to Unsoundness . . id. 
 
 Matter of Fact alone id. 
 
 Either Fact or Veterinary 
 
 Opinion id. 
 
 Both Fact and Veterinary 
 
 Opinion , . id. 
 
 Veterinary Opinion alone. ... 192 
 
 Evidence as to Vice id. 
 
 Evidence as to Unfitness, ^-c. . id. 
 
174 
 
 PLEADING, EVIDENCE AND DAMAGES. 
 
 Proof of Rescission 192 
 
 Froof of Tender id. 
 
 PleadinCt and Evidexce fok the 
 Defendant. 
 
 AdmissioJis hy Plcadinrj 192 
 
 What must be speeialhj lAeaded . id. 
 Hpceijic Denials must be made . . 193 
 
 Denial of Contraet id. 
 
 Allegation of Maliec, 'S;c id. 
 
 Defence for Detention of Goods . id. 
 Defence for Goods bargained and 
 
 sold, and for not accepting . , id. 
 Defence in an Action for not 
 
 delivering 194 
 
 Where Evidence of Usage of 
 
 Trade is not admissible id. 
 
 Defence for Goods sold and de- 
 livered id. 
 
 Defence to Action o)i a Cheque 
 
 for the Price id. 
 
 Evidence in Redaction of 
 
 Damages id. 
 
 Defence for Residue of the 
 
 Price 195 
 
 Defence for Money had (end re- 
 ceived id. 
 
 Defence to an Action on a Breach 
 
 of Warranty id. 
 
 A surreptitious Warranty . . id. 
 Condition annexed to a War- 
 ranty 196 
 
 Evidence in Reduction of 
 
 Damages 197 
 
 Defence to an Action for Frau- 
 dulent Representation id. 
 
 Disputing the Warranty id. 
 
 Disputing the Unsoundness, ^-c. . id. 
 
 Subsequent Recovery 198 
 
 Competency of Witnesses id. 
 
 Damages. 
 
 General Damages 198 
 
 Special Damages id. 
 
 Legal and natural Consequences 
 
 of Breach of Contract id. 
 
 Judges to direct Juries as to 
 
 Rules of Damages 199 
 
 Damages arising from special 
 
 Circumstances 199 
 
 Effect of Notice 200 
 
 J)ai)iagcsfor wrongful Conversion 201 
 
 Damages in tort id. 
 
 In Actions for a, Sum certain . , id. 
 
 Interest 202 
 
 17 % 18 Tict. c. 90 id. 
 
 In Actions which sound in 
 
 Damages id. 
 
 A foolish Bargain 203 
 
 Ayi impossible Contract id. 
 
 Cannot be higher than the 
 
 Amount laid 204 
 
 In Croods bargained and sold . . id. 
 
 In an Action for not accepting . . id. 
 
 In an ylctionfor not delivering . id. 
 
 Nominal Damages 205 
 
 In Goods sold and delivered .... id. 
 
 In Money had and received ... . id. 
 
 On Breach of JUarranty id. 
 
 General Rule id. 
 
 Where the Horse has been 
 
 returned id. 
 
 Where the Horse has not been 
 
 returned 206 
 
 Where the Horse has been ten- 
 dered id. 
 
 E-cpense of Keep id. 
 
 Seller liable for reasonable 
 
 Keep 207 
 
 What is reasonable id. 
 
 Keeping the Horse till a Fair 208 
 Expense consequent on the War- 
 ranty id. 
 
 Expense in Selling 209 
 
 Expense in advancing the 
 
 Horsc^s Value id. 
 
 Horse tendered, and then sold 
 
 by Auction id. 
 
 Expense of Veterinary Certi- 
 ficate and CounseVs Opinion id. 
 
 Travelling Expenses 210 
 
 loss of a good Bargain id, 
 
 Re-selliny icith a Warranty .. id. 
 Damages for Misrepresentation id. 
 Where the Damages are very 
 
 small 212 
 
 Executory 
 and executed 
 contracts. 
 
 PLEADING AND EVIDENCE FOR THE PLAINTIFF. 
 
 Where you proceed for a breach of an executor// con- 
 tract, you must rest on the contract itself ; but when the 
 contract has been cxfciifcd, you proceed on the promise 
 implied by law {a) . 
 
 (a) Per Lord Campbell, Lour v. London and North Western Rail. Co., 
 21 L. J., Q. B. 3G3. 
 
PLEADING AND EVIDENCE FOTl THE rLATNTTFF. 175 
 
 Where the property has completely passed (/>), and the Action for 
 Yendor does not wish to deliver the Horse till he has re- P!.'^*^° °* 
 ceived the Price agreed upon ; or if the purchaser refuse to 
 receive him, the Vendor may bring an action for payment 
 of the price of the Horse (r). 
 
 Where the Purchaser refuses to accept the Horse he Actiou for not 
 has bought, the Vendor may maintain against him an 'Accepting-, 
 action for not accepting, even though the Horse may after- 
 wards have been re-sold {d) ; and the Statement of Claim 
 will set out facts showing the ConHideration and the Pro- 
 mhe, the Breach, and the Bamafje. 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 {e). 
 
 Where by the terms of the Contract the defendant was 
 bound to fetch away the Horse, the plaintiff should state 
 in the Statement of Claim that he has not done so, and aver 
 his own readiness and willingness to deliver (/) . 
 
 It appears that the general averment of the performance 
 and happening of all things necessary to the plaintiff's 
 right of action imports a sufficient statement of his being 
 ready and willing to do all things necessary to be done on 
 his part for the future (</). But the general averment of 
 readiness and willingness is not sufficient in a case of con- 
 dition precedent {li): 
 
 Where the Pm'chaser of goods refuses to take them, the Resale of the 
 Vendor by reselling them does not preclude himself from ^^^^*- 
 recovering Damages for breach of Contract. And it was 
 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 for the loss, if any, 
 upon the resale" ii). 
 
 An action for the detention of goods may be maintained Action for 
 by any person who has either an absolute or a special Retention of 
 property in goods, which are capable of being ascertained, '^ 
 against another, who is in actual possession of such goods 
 
 (5) Atkinson v. Bell, 8 B. & C. (c) Bordenave v. Gregory, 5 East, 
 
 277; Scott v. England, 2 D. & L. 111. 
 
 524. (/) Bach v. Owen, 5 T. R. 409 ; 
 
 (c) Biinmore v. Taylor, Peake, N. Jiairson v. Johnson, 1 East, 203 ; 
 P. C. r)G; HanJccy v. Smith, Ibid. Wilks y. Atkinson, 1 Marsh. 412. 
 57, n. ( r/) Bcntlcy v. Baives, 9 Ex. 666. 
 
 [d) Maclean v. Bunn, 1 M. & P. (//) Roberts v. Brett, 6 C. B., 
 761; S. V. 4 BiDg. 722; More v. N. S. 611, 633. 
 
 Mibier, Peake, N. P. C. 58, n. (*) Maclean v. Bunn, 4 Biug. 
 
 722. 
 
176 PLEADING, EVIDENCE AND DAMAGES. 
 
 either by delivery or finding, and refuses to deliver 
 them(/). 
 
 As this action proceeds on the ground of property in 
 the plaintiff at the time of action brought, it cannot be 
 maintained, if the defendant took the goods tortiously, for 
 by the trespass the property of the plaintiff is divested (/). 
 But if I lend a man a Horse, and he afterwards refuses to 
 restore it, this injury consists in the detaining, and not in 
 the original taking ; and the regular method for me to 
 recover possession is by action for the detention (m). This 
 would be the proper form of action for the specific restitu- 
 tion of a Horse, which has been unlawfully detained by a 
 Trainer, Veterinary Surgeon, Livery Stable-keeper, or 
 other person, into whose hands it had lawfully come in the 
 first instance. 
 Delivery of The delivery of specific goods, contracted to be delivered, 
 
 specific goods, may, in accordance with a special finding of the Jury, be 
 enforced under the Mercantile Law Amendment Act, 1856 
 (19 & 20 Vict. c. 97). Section 2 of the Act providing, that, 
 in actions in the Superior Coiu"ts, or any Court of Record, 
 for breach of contract to deliver specific goods for a money 
 price, on application of the plaintiff, and by leave of the 
 Judge, the Jury shall, if they find for the plaintiff, find 
 ■what are the goods which remain undelivered, the sum 
 %vhich the plaintiff was liable to pay on delivery, the 
 damages sustained if the goods should be delivered under 
 execution, and the damages if not so delivered; and, 
 thereupon, if judgment be given for the plaintiff, the Court 
 or any Judge thereof, at their or his discretion, and on 
 application of the plaintiff, may order execution to issue 
 for the delivery of the goods on payment of the sum 
 found payable by the plaintiff, without giving the defen- 
 dant the option of detaining the goods on payment of the 
 damages assessed. Where it is intended to proceed under 
 this section, a formal tender of the price agreed, and a 
 demand of the specific chattel, should be made before 
 action, as probably execution for the specific chattel would 
 not be allowed to issue, unless the writ had been specially 
 indorsed with notice of the specific claim, and unless that 
 claim is repeated in the Statement of Claim {ii). 
 Action for not But where the Vendor refuses to deliver the Horse he 
 delivering. j^as sold, and the Pmx'haser is satisfied with his remedy 
 
 (1) Selwyn'sN. P. i2th ed. 660, («) See Day's Common Law Pro- 
 
 C62. cedure Acts, 4th ed. 393. 
 
 [hi) 3 Steph. Comm. 4th ed. 514. 
 
PLEADING AND EVIDENCE FOR THE PLAINTIFF. 177 
 
 in damages, he may maintain against liim an action for 
 not ddkering (ii) ; and where a pai-ticular time for dehvery 
 has been agreed upon, the Statement of Claim will set out 
 facts showing the CouHideyation and Promise, the Breach 
 and the Damage, and aver a readiness and willingness to 
 accept and receive the Horse and pay the Price (o) . If no 
 particular time has been specified, and the Contract be 
 to deliver the Horse generally, as where an action of 
 Assufnjysif 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 retmii the money (p), 
 there must be a special Request to deliver, which will come 
 imder a general averment of performance of conditions 
 precedent {q) . But if a place is mentioned, and no time (r) , 
 or the defendant has incapacitated himself from completing 
 the agreement, as by reselling, &c., a Bequest to deliver is 
 imnecessary (s). 
 
 Where the Vendor has delivered the Horse, and the Goods sold 
 Pm'chaser neglects or refuses to pay for him ; or if a and delivered 
 Horse or Groods be taken in part payment, and the residue of^he Prioe. 
 is unpaid (;*) ; or if the Pm-chaser has the Horse on the 
 terms of sale or retm-n, and keeps him an unreasonable 
 time, the Vendor may maintain an action for Goods sold 
 and delivered iii) . 
 
 Where a portion only of a larger bulk of goods to be Action main- 
 delivered in pursuance of a written contract by a stated tainable on 
 time has been delivered, and the pmxhaser then rescinds ContracUw 
 the contract, the Vendor may maintain an action for goods one of the 
 sold and delivered, although the time fixed for the payment Parties, 
 of the goods has not elapsed {x). 
 
 And where A. agreed to give a Horse warranted sound, Horse sold 
 in exchange for a Horse of B. and a sum of money, and ^^^ delivered, 
 the Horses were exchanged ; but B, refused to pay the 
 money, pretending that A.'s Horse was unsound ; it was 
 held that A. might recover for a Horse sold and delivered (y) . 
 
 (w) Bach V. Owen, 5 T. li. 410. (?«) Bayley v. Gouldsmith, Peake, 
 
 (o) 15 & 16 Vict. c. 76, s. 57; 56; and see Bianchi v. Kash, 1 
 
 BorclenavcY. Gregory, 5 East, 111. M. & W. 545; and see Dyer v. 
 
 [p) 3 Wentw. 3; and 2 Chit. Cowley, 17 L. J., Q. B. 361 ; Moss 
 
 Pleading-, 6tli ed. 166. v. Sweet, 16 L. T., Q. B. 441. 
 
 {q) Bach v. Owen, 5 T. R. 410. {x) Bartholomew v. Markwkk, 33 
 
 (>■) See JonesY. Gibbons, 22 L. J., L. J., C. P. 145. 
 Ex. 348. ( y) Sheldon v. Cox, 3 B. & C. 
 
 (s) Bowdell V. Parsons, 10 East, 420 ; S. C, 5 D. & E. 277 ; Earl of 
 
 359. Falmouth v. Penrose, 6 B. & C. 387; 
 
 {t) Sheldon v. Cox, 3 B. & C. 420; and see 2 Chit. Pleading, 6th ed. 
 
 Harrison v. Zahe, 14 M. & W. 139. 167. 
 
 O. N 
 
178 
 
 PLEADING, EVIDENCE AND DAMAGES. 
 
 Money had 
 and received 
 for Repay- 
 ment of the 
 Price. 
 
 Under a mis- 
 take. 
 
 Money had 
 and received 
 for Repay- 
 ment of part 
 of the Price. 
 
 "WTiere an article, wliicli has been paid for, does not 
 answer the description of the thing which when bought it 
 purported to be (z) ; or where a Horse is bought warranted 
 sound, &c., and paid for, and on its turning out unsound 
 is returned to the sellers, who receives it, there is a mutual 
 Rescission of the Contract, and the buyer may recover the 
 Price paid in an action for Monei/ had and received {a). 
 Also, where a Horse has been bought warranted sound, to 
 be returned if Unsound (b) ; or if the contract is, that the 
 Horse is to be returned if Un suit able [c] ; or Unfit for a 
 particular pm^pose {d) ; and circumstances arise in any of 
 these cases which justify the return of the Horse, and the 
 Horse is tendered, the same form of action lies for Repay- 
 ment of the Price. A claim for Horse meat and Stablinrj 
 may be added if necessary. 
 
 Where money is paid with a knowledge of all the facts, 
 but under a mistake of the law, it cannot in general be re- 
 covered back {e) . But money paid under a mistake of 
 facts, and which the party retaining it has no claim in 
 conscience to retain, is recoverable as money paid without 
 consideration (/'), even though the plaintiff cannot be put 
 i)i statu quo (r/). 
 
 Where a Horse is bought and the Price paid, but the 
 Buyer, by the terms of the agreement, has the option of 
 retiirning 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 Monei/ 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 10/. out of the 80/., but that if the buyer kept them 
 beyond the month, he should pay the seller 10/. 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 for Monei/ had and re- 
 ceived (//) . 
 
 (r) Goiiipcri: v. Dartlctf, 22 L. J., 
 Q. B. 99. 
 
 {a) IVeston v. Dorcncs, Doug. 24 ; 
 Fourr v. TFells, Cowp. 818; and 
 Simpson v. Foils, before Rolfe, B., 
 Carlisle Spr. Ass. 1847, Appendix. 
 
 {b) Adam v. Richards, 2 H. Bla. 
 573. 
 
 (r) Tuiccrs V. Barren, 1 T. R. 
 133. 
 
 {d) Chanter v. Hopkins, 4 M. & 
 W. 406. 
 
 {c) Flatt V. Bromage, 24 L. J., 
 Ex. 63 ; Barlcr v. Fott, 4 H. & N. 
 759 ; Rogers v. Ingham, L. R., 3 
 Ch. D. 351. 
 
 (/) Bize V. Fickason, 1 T. R. 285. 
 
 (>/) Standish v. Ross, 3 Ex. 527. 
 
 (h) Hurst V. Orbell, 8 A. & E. 
 107. 
 
TLEADING AND EVIDENCE FOR THE ri-AlNTIFF. 179 
 
 If a Sheriff -wroDgfully seize and sell the Horse of a Money had 
 third person under an execution, the latter may sue him ^^^^ received 
 for Mo lie!/ had and received ; and he will make out a prima Hore^wrono-- 
 facie case hy merely proving his, the plaintiff's, possession fully sold. 
 of the Horse at the time of seizure. Thus in the case of 
 Oughton v. 8ep)pings{i), a Sheriff's officer had wrongfully 
 seized under a fi. fa. against A. a Horse belonging to B. 
 The Horse was sold by the Sheriff, and the money paid 
 over to the officer. B. brought an action against the 
 officer, for Money had and received, to recover the amount. 
 It appeared that the Horse had belonged to the husband 
 of B., but that after his death she had provided for his 
 keep ; and although no letters of administration were pro- 
 duced, it was held that this was sufficient evidence against 
 a wrongdoer 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 subject 
 complied with, be recovered as Money had and received to aiUons^^"^ ^°^' 
 A.'s use (/t). 
 
 Where a Horse or other article has been sold warranted, Action on a 
 but is in fact hot according to the Warranty, the purchaser S^!^^?^ ?* 
 may of course maintain an action on the Warranty (/) ; 
 and in such action the Statement of Claim will set out facts 
 showing the Consideration and the Warraniy, and state a 
 PurcJiase; it will also set out the Breach and the Damage. 
 
 The old method of suing on a Breach of Warranty was Action for a 
 an action on the Case {m). And now the plaintiff instead ^^^seWar- 
 of suing on the breach of contract may claim damages for 
 a false Warranty : and where this is done the Statement of 
 Claim should set out concisely the facts leading up to the 
 Warranty; the statement of the Wrongful Act, namely, the 
 Sale by means of the False Warranty [n) ; and the state- 
 ment of the Damage. It ought to appear in the Statement 
 of Claim that the Warranty was made at the time of 
 Sale, Warrantizando vendidit (o). But a ^c/e»fer need not 
 be alleged, and if stated it need not be proved. 
 
 Although Infants are liable for torts and injuries of a Liability of 
 private natm^e (^j), yet w^here the substantial groimd of ^^I^^fant. 
 
 (i) Oughton v. Scppings, 1 B. & 325. 
 Ad. 241. (o) Com. Dig. Action on tbc 
 
 {k) IlarcUngham v. Allen, 5 C. B. Case for Deceit, F. 2 ; Marqetson 
 
 793. V. Wright, G M. & P. GIO ; Lysncg 
 
 (l) Roscoe, N. P. 13tli ed. 403. v. &•%, Ld. Eaym. 1120. 
 
 {>«) Margetson v. Wright, 6 M. & {p) Green v. Greoibank, 2 Marsh. 
 
 P. 610. 485 ; Iloivlett v. Eastvell, 4 Camp. 
 
 {>i) 3[mnmery v. Paul, 1 C. B. 118. 
 
 n2 
 
180 
 
 PLEADING, EVIDENCE AND DAMAGES. 
 
 Action for 
 Fraiiclulcnt; 
 Representa- 
 tion. 
 
 Statement of 
 Facts in an 
 action for 
 Breach of 
 Contract. 
 
 Statement of 
 Facts in an 
 action for 
 Deceit. 
 
 Statement of 
 
 action is contract, the plaintiff cannot, by suing in tort, 
 render a person liable Avho would not have been liable on 
 his promise. Therefore where the plaintiff declared that 
 having agreed to exchange Mares with the defendant, the 
 defendant by falsely warranting his Mare to be sound, well 
 knowing her to be unsomid, falsely and fraudulently de- 
 ceived the plaintiff, &c., it was held that Infancy was a 
 good plea in bar (^j). 
 
 We have seen in the Seventh Chapter under what cir- 
 cumstances an action lies, where a Horse has been sold 
 without a Warranty, and also Avhat constitutes Fraudulent 
 Eepresentation {q). Where such an action is brought, the 
 Statement of Claim, in setting out the material facts, should 
 include the statement of the Wrongful act, namely, the Sale 
 by means of the Fraudulent Bepresentation (;•), and with 
 regard to which a Scienter must be laid ; and also the 
 statement of the Damage. 
 
 In an action for breach of Contract, a preamble, stating 
 the circumstances under which the Contract was made, or 
 to which the Consideration has reference is sometimes 
 necessary. But where the mere statement of the Con- 
 sideration and Promise will be sufficiently intelligible, 
 without any prefatory allegation, they may be set forth 
 without any preamble. 
 
 The action for a misrepresentation in the nature of Deceit 
 seems to be an exception from the general rule, that in 
 actions for words, or special damage arising therefrom, 
 the very words must be set out, but the Statement of 
 Claim must correctly state the Contract (s) . Thus, where 
 a Declaration in Case stated tliat the plaintiff bargained 
 uitJi. the defendants, and then alleged a deceitful Warranty 
 of tSheep, the joint property of two defendants, uj)on 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 
 Yict. c. 76, that the plaintiff could not recover, as the action, 
 though laid in tort, was founded on the joint contract 
 alleged (/). 
 
 The Consideration may either be Executed or Executory. 
 
 (/;) See note {p), ante. 
 
 ((/) See ante, pp. 150 — 152. 
 
 (r) Mummery v. Faid, 1 C. B. 
 325. 
 
 (,s) Gutsole V. Mathers, 1 M. & W. 
 495 ; Barley v. Walford, 9 Q. B. 
 197. See also 1 Chit. Pleadins-, 
 
 6th ed. 384 ; and Ireland v. John- 
 son, 1 Bing. N. C. 162 ; Brotherton 
 V. Wood, 6 Moore, 34 ; Boortnan v. 
 Brown, 3 Q. B. 11. 
 
 (0 Weall V. King, 12 East, 452 ; 
 and see Green v. Greenbank, 2 
 Marsh. 485. 
 
PLEADING AND EVIDENCE FOR THE PLAINTIFF. 
 
 181 
 
 An Executed Consideration consists of something past, or theConsido- 
 done before the making of the Promise, and must be shown ^'^^on. 
 to have arisen at the defendant's request (?^). 
 
 An Executor 11 Consideration is something to Jye done, and 
 in the statement of it a greater degree of certainty is 
 required {x). But in either case the whole of the Con- 
 sideration, if it be an entire one, should be stated, no part 
 of it ought to be omitted (//). Thus, where an agent sold 
 a florse belonging to A., and another belonging to B., to 
 C. at an entire Price, and warranted them sound ; andB.'s 
 Horse turning out to be Unsound, C. brought his action 
 against B., declaring in the usual form as upon a Purchase 
 and Warranty of one Horse only ; Lord Ellenborough, 
 C. J., held that the evidence did not support the Declara- 
 tion, 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 (s). 
 
 But where in an action of Assumpsit on the Warranty If the Horse 
 of a Horse, the Consideration stated for the Warranty t^™ out 
 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 " luchj^^ 
 would give the defendant bl. 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 (fl) . 
 
 If the plaintiff, in stating the Consideration, uses the Words used 
 words " Had bought " instead of " Would buy," it is bad, ^^ ^^^ state- 
 because an executed Consideration will support no other 
 promise than such as would be implied by law (^). But 
 this would be amended by the Judge at the Trial (c). 
 There is, however, no variance if the word " Horse " is 
 used and it is proved to be a "Mare" {d), or " Gfeld- 
 
 («) See 1 Chit. Pleading, 6th ed. 
 29.5 ; and King v. Sears, 2 C, M. 
 & R. 53. 
 
 (:r) See 1 Chit. Pleading-, 6th ed. 
 296 ; andIii)iffV.Iioxbronffh,2Tjvw. 
 468; S. C. 2 C. & J. 418. 
 
 {y) Clarke v. Gray, 6 East, 564 ; 
 see also Robertson v. Hoivard, L. R., 
 3 C. P. D. 280; 47 L. J., C. P. 480. 
 As to an Exchange, see Mayor of 
 Reading v. Clarke, 4 B. & Aid. 269. 
 
 (;) SymondsY. Can; 1 Camp. 361. 
 
 («) Giithing v. Lynn, 2 B. & Ad 
 232 ; and %QeSaxby v. Wilkin, 1 D 
 &L. 281. 
 
 [b) Roscorla v. Thomas, 3 Q. B 
 234. 
 
 (c) 15 & 16 Vict. c. 76, 8. 222 
 and see also Order XXVII. (.Judi 
 cature Act), which still further 
 extends the power of amendment. 
 
 {d) Ware v. Juder. 2 C. .fc P. 351 
 or "Colt" or "Filly," in an In 
 dictment, Reg. v. Aid ridge, 4 Cox 
 143, 
 
182 
 
 PLEADING, EVIDENCE AND DAMAGES. 
 
 Statement of 
 the Promise 
 or Warranty. 
 
 Condition an- 
 nexed to the 
 Promise or 
 Warranty. 
 
 Qualification 
 of the Promise 
 or Warranty. 
 
 The Purchase 
 and the Pay- 
 ment. 
 
 ing" (c) ; nor where the price is stated as money, and 
 part of the price was paid by giving goods of a specified 
 value (/). 
 
 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 redelivery 
 to the defendant of an Unsound Horse, the defendant 
 promised to deliver to him another Horse in lieu, which 
 should be worth 80/. and be a young Horse, and then 
 alleged a Breach in both respects, it was held sufficient, 
 though it was proved that the defendant had also promised 
 that the Horse was sound and had never been in harness {g) . 
 
 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 sufficient 
 to declare on the Warranty alone without the condition 
 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" (h). 
 
 But where there is a Qualification of the Promise it 
 should be stated in the Statement of Claim ; for where the 
 plaintiff, before the passing of 15 & IG Vict. c. 7G, declared 
 on a Warranty that the Horse was " sound," and the 
 Warranty proved was that the Horse was " sound every- 
 where except a kick on the leg," the omission was held to 
 be fatal (/) . The plaintiff would now, however, be per- 
 mitted to amend. 
 
 Where the Consideration is executory, it is necessary 
 for the plaintiff to prove the performance of the Considera- 
 tion on his part, that is to say, the Purchase, in order 
 
 [e) "UquHs,'" in the Latin plead- 
 ings, was satisfied by proof of a 
 "Grclding," Gravely Y. Ford, Lord 
 Raym. 209. 
 
 {/) Rands y. Burton, 9 East, 349; 
 Brown v. Fry, 1 Selw. N. P. 12th 
 ed. 652. 
 
 [y) Miles V. Sheivard, 8 East, 7 ; 
 Clarke v. Gray, 6 East, 5G8. 
 
 (A) Smart v. Hyde, 8 M. & W. 
 728. 
 
 (j) Jones V. Cowley, 4 B. & C. 
 445 ; .S'. C. G D. & R. 533. 
 
PLEADING AND EVIDENCE FOR THE PLAINTIFF. 183 
 
 to show that he possesses a right of action, and there must 
 be a general averment of performance of conditions pre- 
 cedent (/•), And as the Price has usually been paid when 
 an action is brought on a Breach of Warranty, the Pay- 
 ment, if made, will be included in such an averment, 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 ^^^ ^''•l^^ 
 case, it may be that the Judge at the trial will refuse to rrauduleufc°^ 
 amend on the ground that the defendant has been misled or Reprcseuta- 
 taken by surprise. Where an action on the Case was brought ti^u. 
 against a thii-d party for a Misrepresentation on the sale 
 of a Horse, the Declaration stated that the Defendant war- 
 ranted the Horse to be " sound and a good worker," and it 
 appeared in evidence that he wan-anted the Horse " sound 
 in the wind," an objection was taken that the Warranty 
 and Misrepresentation alleged in the Declaration were not 
 proved ; but Mr. Baron Alderson said, " I think the De- 
 claration is substantially proved, and therefore I shall 
 direct the record to be amended imder the recent statute (/). 
 The variance relied upon by the defendant is not material 
 to the merits. The merits are, whether or no the defendant 
 made a Fraudulent Misrepresentation. It is proved that 
 he did; and the terms of the Misrepresentation 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 de- 
 fend himself from the charge of having made a Fraudulent 
 Misrepresentation on the occasion of the sale, and whether 
 he represented the Horse to be wholly sound, or merely 
 sound in the wind, makes no difference to the merits." 
 After this amendment a verdict was foimd for the plain- 
 tiff (m). 
 
 A Breach must always be stated in the Statement of Statemcut of 
 Claim, so that the cause of complaint may appear (y?). If t^*^ Breach, 
 the contract be in the disjunctive the breach ought to be 
 assigned 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 (o). It is a liule in Pleading that 
 
 {h) SeeBul. N. P. 146;andi2i«-7 c. 75, s. 222; and Ord. XXVII. 
 
 V. Roxbroufjh, 2 Tyr. 468; S. C. 2 & rr. 1—6. 
 
 J. 418; and 1 Chit. Pleading, 6th ed. {^i) Brickhead v. Arclihisho}) of 
 
 296 ; 15 & 16 Vict. c. 76, s. 57. York, Hob. 198, 233. 
 
 {I) 3 & 4 Will. 4, 0. 42, s. 23. (o) Com. Dig. Pleader, C. ; Wright 
 
 \m) Marsh v. Densham, 1 M. & v. Johnson, 1 Sid. 440, 447; Alchcrnj 
 
 Rob. 442 ; and sec 15 & 16 Vict. v. Walh'j, 1 Stra. 231. 
 
184 
 
 PLEADING, EVIDENCE AND DAMAGES. 
 
 Statement of 
 the Damasre. 
 
 Proof in 
 Goods bar- 
 gained and 
 sold. 
 
 Proof in an 
 action for not 
 accepting. 
 
 Meaning of 
 readiness and 
 ■willingness. 
 
 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 (p). 
 
 In order to recover Special Damages it is necessary 
 that they be explicitly stated in the Statement of Claim, 
 so that the defendant may be prepared to dispute the facts. 
 But Damages which necessaribj, and by implication of lan\ 
 ensue from the non-performance of the contract, need not 
 be expressly detailed, and are recoverable under the com- 
 mon conclusion of the Statement of Claim ((7). 
 
 Where the plaintiff brings an action for the price of his 
 Horse as Goods bargained and sold, he must be prepared to 
 prove such a Contract of a sale (r), made by him to the 
 defendant and completed, as was sufficient in law to vest 
 the property in the defendant. For instance, where the 
 price is 10/. or upwards, the plaintiff must prove that some 
 requisite of the 17th section of the Statute of Frauds has 
 been complied with (s). And it will be necessary to show 
 that a specific price was agreed upon (/) as part of the 
 contract. 
 
 Where the plaintiff brings an action for not accepting 
 the Horse he has sold to the defendant, and a plea travers- 
 ing the Contract or Agreement in the Statement of Claim 
 is pleaded, the plaintiff must prove the Contract, that is, 
 the alleged Consideration and the Promise {li). And if the 
 defendant contest it in his pleading, the plaintiff must 
 show either a Tender (.r), as the case may be, or that 
 during a reasonable time he was Ready and Willing to 
 deliver it [g) . 
 
 The meaning of Readiness and Willingness is, that the 
 non-completion of the Contract was not the fault of the 
 plaintiff, and that he was disposed and able to complete it, 
 if it had not been renounced by the defendant (s). 
 
 Where the plaintiff has otherwise than at the buyer's 
 request delayed delivery beyond the proper time, he can- 
 
 {p) Com. Dig. Pleader, C. 45; 
 and see 1 CMt. Pleading, 6tli ed. 
 172. 
 
 [q) See Boorman v. Kaslt, 9 B. & 
 C. 152 ; and Chit. Contr. 11th cd. 
 817; BuUen and Leake's Pleading, 
 4th ed. 19 ; and Damages, post. 
 
 {>■) Requires no Stamp. Mtirson 
 V. f^/wrt, 2 Bing. N. C. 118 ; 6'. C. 
 2 Scott, 24 a. 
 
 (i-) Elliott v.Fijhus, 10 Bing. 512; 
 
 Eohde V. Thwaitcs, 6 B. & C. 388. 
 
 {t) Simmons v. Swift, 5 B. & C. 
 857. 
 
 [u) Bcal V. White, 12 A. & E. 
 670. 
 
 {x) Proof of Tender, post. 
 
 (y) Granger v. Bacre, 12 M. & "W. 
 431 ; Tcmjjest v. Kilncr, 2 C. B. 308. 
 
 [z) Cort V. Amherc/ate Railway 
 Company, 20 L. J., Q. B. 465 ; Baker 
 y.Firminyer, 28 L. J., Ex. 130. 
 
PLEADING AND EVIDENCE FOR THE PLAINTIFF. 185 
 
 not enforce acceptance, nnless the defendant has entered 
 into a new binding contract (a). 
 
 Where a Horse is bought, and an action is brought for Proof in an 
 not deUrering him, a plea traversing the Contract or Agree- ^°*!°^ ^^r not 
 ment alleged in the Statement of Claim will put the plain- ^ ^' 
 
 tiff to prove the Contract, namely, the alleged Consideration 
 and Promise ; and if the defendant contest it in his plead- 
 ing, the plaintiff must prove that he was Ready and Willing 
 to accept and pay for it. But where there is a traverse of 
 readiness, if nothing remain for the plaintiff to do, it lies 
 on the defendant to disprove, rather than on the plaintiff 
 to prove, the readiness and willingness to deliver {b). But 
 it will not be necessary to prove a Tender of the money (c). 
 And it is sufficient evidence that the plaintiff was Ready 
 and Willing, if within a reasonable time the Horse is de- 
 manded by him (f/), or his servant [e). 
 
 Where the plaintiff after delivering the Horse brings an Proof in 
 action for his price, he must be prepared to prove, if Goods sold 
 denied, 1st, the ^ale, of which the Delivery of the Horse ^^ ^ ^"'^ ' 
 to the defendant and an acceptance by him will be suffi- 
 cient iwima facie evidence {e) ; 2nd, the Delivery either to 
 the defendant or his agent, or something which has been 
 done equivalent to a Delivery (,/') ; and 3rd, the Rrice 
 agreed upon for the Horse; but if the Price forms no part 
 of the Contract, or if the Contract is merely to be implied 
 from the Delivery to and acceptance by the defendant, the 
 plaintiff must be prepared to show the real and reasonable 
 Value of the Horse by persons of competent experience. 
 
 Where the plaintiff* after a Breach of Warranty sues for Proof in 
 liepayment of the purchase-money as Money had and re- Money had 
 ceived, he may be compelled by a proper defence to prove ^^ receive . 
 the receipt of the money by the defendant, and his own 
 title to recover it as received for him {g) . He must, there- 
 fore, prove the Consideration and the Performance of it on 
 his part, namely, the Payment of a particular Price {/i) ; 
 
 (a) Flcvins v. Downing, L. R., Bolt, 9 C. & P. G96, and Roscoe, 
 
 I C. P. D. 220 ; 45 L. J., C. P. 695 ; N. P. 14th ed. 497. 
 35 L. T., N. S. 263. (/) Lee v. Shore, 1 B. & C. 94 ; 
 
 (i) Rawson v. Johnson, 1 East, Smith v. Chance, 2 B. & A. 755. 
 
 203 ; Waterhouae v. Skim/er, 2 B. See also Bartholomew v. Markwick, 
 
 &P. 447. 33 L. J., C. P. 145, and Wehh v. 
 
 (r) TFilkes v. Atkinson, 1 Marsh. Fairmancr, 3 M. & W. 473. 
 412; Levy\. Lord Herbert, ITaxxni. [g) Roscoe, N. P. 14th ed. 542. 
 
 318; Tempest Y. miner, 2 G.B.'im. {h) Harvcg v. Archbold, SB. &G. 
 
 (d) Squire v. Uimt, 3 Price, 68. 626 ; Bernasconi v. Anderson, M. & 
 
 {e) Bennett \. Henderson, 2 Stark. M. 183; Lccson v. Smith, 4 N. & 
 
 N, P. C. 550; and see Smith v. M. 301. 
 
186 
 
 PLEADING, EVIDENCE AND DAMAGES. 
 
 Proof of an 
 
 Account 
 
 fcitated. 
 
 Pi-oof in an 
 action for 
 Breach of 
 Warranty. 
 
 Proof in an 
 action for a 
 False War- 
 ranty. 
 
 Where it is 
 doubtful 
 whether false 
 Warranty is 
 proveable. 
 
 also tlio TFarraiif//, the Breach of Warranty, and cither an 
 ii(iiux\\. Ilcscission of tlie Contract or a Power to Rescind, and 
 a consequent Tender of the Horse. 
 
 To support a claim for Money found to he 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 (/) . 
 
 Where an action is brought on a Breach of Warranty, 
 and the Warranty is denied, the plaintiff must prove the 
 fact of the sale and Warranty having been given. If the 
 Breach is traversed the onus lies upon him to prove the 
 Unsoundness or Vice, or whatever is alleged as the subject- 
 matter of the Breach (A-) . And of com'se he must in all 
 cases prove Damaye whether General or Special. 
 
 Where an action is brought for a False Warranty, the 
 plaintiff should be prepared to prove the Wrongful act 
 alleged to have been committed by the defendant (/), 
 namely, the Sale by means of the False Warranty. He 
 must also prove Damage whether general or special. 
 
 Where no Warranty exists in the contract, but the con- 
 tract is induced by false representation, known by the 
 seller to be false, the action is grounded on the fraud, and 
 should be so framed (;«). As we have before stated (^i), 
 the knowledge of the defendant is in such case essential 
 to the cause of action (o). Where there is evidence of 
 fraud, it should be alleged in addition to a Breach of War- 
 ranty, where it is doubtful whether a Warranty can be 
 proved (7;). For if a Statement of Claim discloses a state 
 of facts, upon which an action may be maintained without 
 fraud, fraud need not be proved, though it be alleged ; and 
 the plaintiff may recover upon the facts disclosed, though 
 fraud be alleged and disproved {q). But where the plain- 
 tiff relies on fraud alone and does not succeed, he cannot 
 pick out facts which would othermse have entitled him to 
 relief apart from the fraud (r). 
 
 (J) See Chit. Contr. 11th ed. 601, 
 608, and the authorities tliere cited. 
 
 {k) Oshorn v. Thompson, 9 C. & P. 
 337; 1 Tayl. Evid. 337. 
 
 {I) SeeMu)nmcri/y.raiiI,lG.B.3'27. 
 
 (w.) Onnrod\.'Huth, 14 M. & W. 
 G51. 
 
 («) Ante, pp. 150, 151. 
 
 (o) Paslcj/Y. Freeman, 2 Sm. L. C. 
 8th ed. CO. 
 
 (p) Bullen & Leake's Pleadings, 
 4th ed. 428. 
 
 (q) Swinfcn V. Lord Chelmsford, 5 
 H. & N. 890, 921. Per Parke, B., 
 Thorn V. Bhjland, 8 Ex. 725. 
 
 ()■) Il/id.son V. Lombard, L. E., 1 
 II. L. 324 ; London Chartered Bank 
 of Australia v. Lcmpriere, L. E,., 4 
 P. C. 572 ; Noad v. Murroio, 40 
 L. T., N. S. 100. 
 
PLEADING AND EVIDENCE FOR THE PLAINTIFF. 187 
 
 Where an action is brougM for Fraudulent Eepresenta- Proof in an 
 tion on the sale of a Horse, the plaintiff should be prepared action for 
 to prove the Wrongful act alleged to have been committed Hc^resenta- 
 by the defendant, namely, the Sale by means of the tion. 
 Fraudulent Rejjresentation (s) ; and it is essential to show 
 that there was a Sale and also a Misrejjresentation (t). But 
 he must give proof of Damage whether general or special {u) . 
 
 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- I^argain and 
 chaser (.r). "We have seen, in the First Chapter, what ^ ^" 
 is sufficient evidence of a contract for Sale, either where 
 the value is under 10/. ( g) ; or the agreement is not to be 
 performed within a year (s) ; or the value is 10/. or 
 upwards, within the 17th section of the Statute of 
 Frauds {a) . Where there is an agreement in writing, it 
 should be put in and proved, and it is not necessary that 
 it should be stamped {b). Where, however, the Bargain 
 and Sale has been made by word of mouth, the plain- 
 tiff {c), or some witness {d) of the transaction must bo 
 called. 
 
 Where the Consideration is set out in the Statement of Proof of the 
 Claim as executorg, it will in point of fact depend upon the Considera- 
 same proof as the Contract for Sale. When it is executed, 
 the plaintiff must show that it took place before the 
 Contract, and that it arose at the defendant's request {e) . 
 In the case of a Sale he must prove Pagment of the Price ; 
 but where the Consideration is another Horse, or other 
 goods, a Deliverg and Accejytaiice must be proved. Where, 
 however, the transaction is substantially a Sale, the plaintiff 
 may prove that the defendant took another Horse in part 
 payment (/). 
 
 The Pagment of t/ie Price is usually proved by producing Proof of 
 the Receipt, which of course must bear a Stamp, where Payment of 
 the sum is 21. or upwards ( g) ; and if no Receipt was ^ ^^^^' 
 given, or it was unstamped or lost, the plaintiff, or some 
 
 (s) Per Cresswell, J., Mummcnj (a) 29 Car. 2, c. 3, s. 17; and see 
 
 V. Faul, 1 C. B. 327. ante, Chap. I. 
 
 {() Per Erie, J., Ibid. (i) Skrliw v. Elmore, 2 Camp. 
 
 {/() Per Bramwell, B., Eastwood 407. 
 V. liain, 28 L. J., Ex. 74. (c) 14 & 15 Vict. c. 99, ss. 1, 2. 
 
 (2-) Bennett v. Ilotdvrson, 2 Stark. [d) The phxintiff's husband or 
 
 5-50 ; and see Smith v. Halt, 9 C. & wife is now admissible as a witness, 
 
 P. G96. IG & 17 Vict. c. 83, ss. 1, 4. 
 
 (?/) See ante. Chap. I. (c) King v. Scars, 2 Cr. M. & E. 
 
 (;) 29 Car. 2, c. 3, s. 4 ; and see 48. 
 ante, Chap. I. (/) Hands v. Burton, 9 East, 349. 
 
 (y) 33 & 34 Vict. c. 97, 's. 120. 
 
188 PLEADING, EVIDENCE AND DAMAGES. 
 
 person wlio witnessed the transaction, must be put into tlie 
 box (h). 
 Appropria- Where a claim consists of several items, the party 
 
 Y^^ °^ money flaking 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 (/'). 
 
 The plaintiff's Horse, warranted quiet in harness, was 
 sold for 1 61. at Aldiidge's Repository. It was afterwards 
 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 lO-s-. 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 : — £ s. d. 
 
 1847. July 31. Bay gelding bait ... 1 6 
 
 Auction 5 
 
 Au^. 4 1 -^^^ gelding, three days 10 6 
 Aug. '6 To cash price for trial of 
 
 Bay gelding in harness 10 
 
 £17 
 
 The plaintiff, objecting that the charge was exorbitant, 
 laid down 19.s. 6d. on the desk in the defendant's office 
 and demanded his Horse. The defendant's clerk told him 
 he could not have it unless he complied with the Rules and 
 paid the 11. 7s. The plaintiff then went away, leaving 
 the 19s\ 6d. on the desk. 
 Proof of the The plaintiff brought an action of Debt for Monet/ had 
 ^omise or ^^^^^^ received, with a count in Detinue for the Horse. It 
 was held by 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 liad 
 and received to the use of the plaintiff, until those con- 
 ditions had been complied with, and the time for returning 
 the Horse had elapsed. Also that the evidence did not 
 
 {h) ScQ liionberi V. Cohen, i Esp. (/) Soc per Wilde, C. J., 2f«?Y/i«y- 
 
 213. ham v. Allen, 5 C. B. 797. 
 
PLEADING AND EVIDENCE FOR THE PLAINTIFF. 189 
 
 support a Tender, inasmuch as there was no specific appro- 
 priation of any part of the 19s. 6(1. to the lOs. claimed in 
 respect of the trial of the Horse (/<•) . 
 
 Where the Promise or Warranty has been made by word A Warranty 
 of mouth, the plaintiff or some party who heard it given not contained 
 must be called to prove it. AVhere the Promise or War- Receipt, 
 ranty is to be gathered 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 put in and read. 
 
 The buyer may give evidence of a Warranty, although 
 in a note of the sale and receipt for the money, given by 
 the seller after the conclusion of a parol contract, there be 
 contained no notice of any Warranty. Thus the defendant 
 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 Gr. Pink a Horse for the sum of 71. 2s. M. 
 
 a. Pink." 
 
 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 Com-t of Exchequer, that parol evidence might not- 
 withstanding be given of the Warranty (/). 
 
 But a Warranty contained in a Receipt is not always Warranty in 
 conclusive evidence that a Warranty has been given. For ^ Receipt not 
 where some hours after bargain the defendant sent his elusive '^°^" 
 coachman to pay the plaintiff the money, and the coach- 
 man drew out the following Receipt, which was signed by 
 the plaintiff, an illiterate man, " Received 10/. 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 authority, by an after-thought of the de- 
 fendant's Servant [m) . 
 
 It is not necessary that a written Warranty should Written 
 have an Agreement Stamp. This was so decided in the Warranty 
 following case, where the plaintiff gave in evidence a A^eemeut 
 
 Stamp. 
 [k) Hardingham v. Allen, 5 C. B. (/«) Falnnaner v. Budd, 7 Bing. 
 
 796. 575. 
 
 (/) Allen V. Pink, 4 M. & W. 140. 
 
190 
 
 PLEADING, EVIDENCE AND DAMAGES. 
 
 Where au- 
 thority to 
 warrant need 
 not be 
 proved. 
 
 Where 
 authority to 
 warrant must 
 be proved. 
 
 Proof of a 
 power to 
 rescind. 
 
 Proof of 
 Fraudulent 
 Representa- 
 tion. 
 
 Proof of the 
 
 ■written instrument signed hy the defendant, wliicli had a 
 Receipt Stamp, and contained a Receipt for the price of 
 the Horse, with 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 LaAv- 
 rence, in Broicne v. Frye {n), Lord Ellenborough held 
 that such a Receipt might be received to prove the War- 
 ranty, as Avell as the Payment of the Price of the Horse, 
 with a Receipt Stamp only (o) ; and a Warranty comes 
 within the exception in the schedule of 33 & 34 Yict. 
 c. 97 (the Stamp Act, 1870), as it is an Agreement re- 
 lating to the Sale of Groods, 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 (p). 
 
 But the WaiTanty of a person merely entrusted to 
 deliver a Horse, is not prima facie binding on ihe. Prin- 
 cipal, but an express authority must be proved (^7) . So 
 also where an Agent makes an alteration in a Warranty 
 given by his Principal, a special or general authority 
 must be shown (r). 
 
 Where a power to rescind is one of the terms of a 
 verbal contract for a Plorse, some witness to the trans- 
 action must be called to prove it («). Where, however, 
 there is a ■written Contract, and such power ajipears 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 [t) . 
 
 We have seen in the Seventh Chapter what constitutes 
 a Fraudulent Ftcprescntation, so as to support an action 
 for deceit. And it may be laid down as a Rule, with 
 regard to the proof of the Scienter or Fraud, that where a 
 Representation is false to the knowledge of the party making 
 it, this is in general conclusive evidence of Fraud {u) . 
 
 Where the Breach of Warranty {x) is Unsoundness, 
 
 [n) Bro icne v. Frije, cited in Shine 
 V. Elmore, 2 Camp. 407. 
 
 (o) Sh-inc V. Elmore, 2 Camp. 407. 
 
 {p) Alexander Y. Gibson, 3 Camp. 
 555. 
 
 (q) Woodin v. Burford, 2 C. & M. 
 391; S. C. 4Tp-w. 264. 
 
 (>•) Strode v. Dyson, 1 Smith, 400. 
 
 (.s) As to unfitness, see Breach of 
 Warranty, ante, Chap. 8. 
 
 {t) Payne v. Whale, 7 East, 274. 
 
 [u) In the Exchequer Chamber, 
 Ormrodv. Iluth, 14 M. &W. 6G4. 
 
 (.(■) See Breach of Warranty, 
 ante, Chap. 8. 
 
PLEADING AND EVIDENCE FOR THE TLAINTIFF. 191 
 
 the plaintiff must prove either an actual existence of Breacli of 
 Unsoundness at the time of Sale, or that from the appear- Warranty, 
 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 (y). 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 eye of the 
 law constitutes a Vice {z). 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 [a). 
 
 It is not necessary that the plaintiff should inform the Notice of the 
 defendant of the natm'e of the Unsoundness, and he may mature of the 
 refuse to do so if applied to before the trial ; and the ^ ^^^^' 
 
 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 {h). 
 
 As there are a variety of particular causes of Unsound- Evidence as 
 ness {c),\hQ proof of it will vary according to the cir- *« Unsouud- 
 cumstances of the case. 
 
 There are some cases which merely depend upon evi- Matter of 
 dence as to a certain Fact; for instance a Horse after ^^^t alone, 
 sale is discovered to be Lame from a Curb [d], 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 Either Fact 
 certain Fact, or by Veterinary opinion. As where the or Veterinary 
 Buyer discovers a Spavin (e) after Sale, he must either °P^^^°^- 
 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 of Fact Both Fact and 
 and Veterinary opinion ; as where a Horse has a Splint (/) ^^^^o^*^^^ 
 and is Lame, the question is whether the present Lame- 
 ness ( g) proceeds from the Splint ; and if it does, whether 
 the Splint actually existed or must have existed before or 
 at the time of Sale. 
 
 (v) Haves v. Dixon, 2 Taimt. 343. {c) See Unsoundness and Vice, 
 
 (z) Scholejicld v. liobb, 2 M. & Rob. ante, Chap. 4. 
 
 210. ((/) Curb, ante, p. 85. 
 
 (a) Geddes v. renningtoii, 5 Dow, {() Spavin, ante, p. 103. 
 
 164. (/) Si^lint, ante, p. 103. 
 
 [h) Attcrhury v. Fairmanncr, 8 [g) Lameness, ante, j). 92. 
 Moore, 33. 
 
 opinion. 
 
192 
 
 PLEADING, EVIDENCE AND DAMAGES. 
 
 Veterinary 
 opinion alone. 
 
 Evidence as 
 to Vice. 
 
 Evidence as to 
 unfitness. 
 
 Proof of 
 
 Rescission. 
 
 Proof of 
 Tender. 
 
 Or a pure question of Veterinary opinion may arise, as 
 wliere there is a dispute whether a Ilorse is Spavined (//) or 
 not ; or where the natiu'al appearance of a Horse's Hock 
 is altered, and it is doubtful whether it is merely a Capped 
 Hock (?■), or a material alteration in the structure of the 
 Hock joint. 
 
 The proof of an alleged Vice [j) 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 certain 
 habit before or at that time, and then upon Veterinanj 
 opinioji as to the effect of it. 
 
 The Unfitness (/.•) 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 person of ordinary 
 skill cannot safely drive him (/.-) . 
 
 To prove a Rescission, the plaintiff must either prove that 
 the defendant accepted the Horse when tendered, or he 
 must show a Rescission by mutual agreement. 
 
 The plaintiff may prove a Tender by showing that he 
 sent the Horse hack to the defendant, who refused to 
 accept it (/) ; or that he sent the Horse to Livevij, and 
 informed the defendant that he had done so {m). 
 
 Admissions 
 by pleading. 
 
 What must 
 be specially 
 pleaded. 
 
 PLEADING AND EVIDENCE FOR THE DEFENDANT. 
 
 Every allegation of fact in any pleading in an action, 
 not being a petition or summons, if not denied specifically 
 or by necessary implication, or stated to be not admitted in 
 the pleading of the opposite party, shall be taken to be 
 admitted, except as against an infant, lunatic or person of 
 unsound mind not so found by inquisition. (Ord. XIX. 
 r. 17.) 
 
 By Ord. XIX. r. 18, the defendant must plead specially 
 all facts not previously stated on which he relies, and 
 must raise all such grounds of defence as, if not pleaded, 
 w^ould be likely to take the plaintiff by surprise, or would 
 raise new issues of fact not arising out of the pleadings, as, 
 for instance, fraud, or that any claim has been barred by 
 the Statute of Limitations, or has been released. 
 
 {h) Spavin, ante, p. 103. 
 
 (i) Capped Hocks, ante, p. 79. 
 
 {j) See Unsoundness and Vice, 
 ante. Chap. 4. 
 
 {k) Geddcs v. Pemi'mgton, 5 Dow, 
 164. See ante, p. 122, BtickingJiam 
 
 V. Bcere. 
 
 (0 See ToicersY. Barrett, 1 T. R., 
 138. 
 
 ()h) Chesterman v. Lamh, 2 A. & 
 E. 129. 
 
PLEADING AND EVIDENCE FOR THE DEFENDANT. 193 
 
 By Ord. XIX. r. 20, it shall not be sufficient for a Specific de- 
 defendant in bis defence to deny generally the facts ^^^^ ™^^' ^® 
 alleged by the Statement of Claim; but the defendant 
 must deal specifically with each allegation of fact of which 
 he does not admit the truth. 
 
 By Ord. XIX. r. 23, when a contract is alleged in any Denial of 
 pleading, a bare denial of the contract by the opposite Contract, 
 party shall be construed only as a denial of the making of 
 the contract in fact, and not of its legality or its sufficiency 
 in law, whether with reference to the Statute of Frauds or 
 otherwise. This rule requires the defendant specifically to 
 allege in his defence that he relies on the objection to the 
 contract arising under the Statute {n). 
 
 And by Ord. XIX. r. 25, whenever it is material to Allegation of 
 allege malice or fraudident intention, knowledge or other ^^fialice, &c. 
 condition of the mind of any person, it shall be sufficient 
 to allege the same as a fact without setting out the circum- 
 stances from which the same is to be inferred. 
 
 The ordinary e\ddence of detention is that the defendant Defence for 
 refused to deliver the goods when demanded (o). It is no q^qo^*^*^" °^ 
 defence to show that the goods were not in his possession 
 when demanded if he had improperly parted with the 
 possession {p), as where he had sold them, or lost them by 
 carelessness {q). 
 
 Where goods have been deposited or pledged with the 
 defendant as part of an illegal or immoral agreement, the 
 maxim " In pari delicto potior est conditio defendentis " 
 appHes, and the plaintiff cannot recover them (r). 
 
 In an action for goods bargained and sold the defendant. Defence for 
 provided that he plead them specially, may rely on any of G^oods^ar- 
 the following facts, viz., that the defendant never bought a ^old and for 
 Horse of the plaintiff at all, or that the sale was invalid not accepting. 
 under the Statute of Frauds (s) ; or where he did not see 
 the Horse before piu-chase he may show that it does 72ot 
 correspond Avith its description (/) ; or where it has been 
 ordered for a pai-ticular jiiu-pose, for instance, to run in a 
 carriage, he may show that it was unjit for that pur- 
 
 (») Clarice v. Callow, 46 L. J., (;•) Tai/lor v. C/iester, L,. B., 4^ Q. 
 
 Q. B. 53— C. A. B. 309 ; 38 L. J., Q. B. 225. 
 
 (o) Jones V. Bowie, 9 M. & W. (v) Johnson v. Bodgson, 2 M. & 
 
 19. W. 653 ; Elliott v. Thomas, 3 ibid. 
 
 {p) Ibid. 170 ; Buttermere v. Hayes, 5 ibid. 
 
 \q) Reeve v. Palmer, 28 L. J., 456. 
 
 C. P. 168. [t) See Street v. Blay, 2 B. & Ad. 
 
 456 ; Parsons v. Sexton, 4 C. B. 905. 
 
 O. O 
 
194 
 
 PLEADING, EVIDENCE AND DAMAGES. 
 
 Defence in 
 action for not 
 delivering. 
 
 Where evi- 
 dence of the 
 usage of trade 
 is not admis- 
 sible. 
 
 Defence for 
 Goods sold 
 and delivered. 
 
 Defence to 
 action on a 
 Cheque for 
 the price. 
 
 Evidence in 
 
 pose (ii) ; or that it was not the Horse which he bargained 
 to purchase, though of the same name (.r), or that the 
 Contract was made without the proper formalities (//). 
 
 In an action for not delivering a Horse, the defendant 
 may show that he did not sell a Horse to the plaintiff at 
 all, or that the Sale was informal under the Statute of 
 Frauds (s). And where he contests it in his pleading, he 
 may show that the plaintiff was not Ready and Willing to 
 accept and receive it and pay the Price {a). And where 
 no particular time has been specified for delivery, he may 
 show that the plaintiff never made any demand {b). 
 
 Where there is no ambiguity in the language of a 
 contract, evidence is not admissible to show that, by the 
 usage of the particular trade, persons selling under such 
 contracts are not bound to deliver the goods without pay- 
 ment (c). 
 
 ^\Tiere an action is brought for the price of a Horse as 
 Goods sold and delivered, the defendant, by proper allega- 
 tions in his statement of defence, may dispute the Sale and 
 Delivery in point of fact. Therefore he may show that the 
 Sale was on credit which had not expired when the action was 
 brought {d) ; that no absolute Sale took place ; that there 
 was no Delivery at all [e) ; or that the Delivery was for the 
 purpose of a reasonable trial, and that the Horse did not 
 suit (/) ; or he may show that the Horse was returned on 
 the ground of a Breach of Warranty, pursuant to an 
 agreement embodied in the contract. If his defence is 
 Payment, of course it must be specially pleaded. So also 
 must want of title (r/). 
 
 Breach of Warranty is no answer to an action on a 
 Cheque for the price ; but a fraudulent representation 
 is (70. 
 
 However, it is only reasonable and just that when an 
 
 («) Chanter v. Hopkins, 4 M. & 
 W. 406. 
 
 (a) Raffles V. IFicheUiaus, 33 L. J., 
 Ex. 160. 
 
 (v) Frcnd v. Dennett, 27 L. J., 
 C. P. 314 ; Bradley v. Barehleij, 14 
 M. & W. 873. 
 
 [z) Johnson v. Dodyson, 2 M. feW. 
 653 ; ElUott v. Thomas, 3 ibid. 170; 
 Buttcrmcre v. Hayes, 5 ibid. 456. 
 
 («) Raivson v. Johnson, 1 East, 
 203. 
 
 ib) Bach V. Given, 5T. R. 410. 
 
 (e) Spartali v. Beneche, 10 C. B. 
 212 ; and see Humphrey v. Bale, 11 
 L. J., Q B. 390. 
 
 [il) Broomfield v. Smith, 1 M. & 
 W. 542 ; Wchh v. Fairmanner, 3 M. 
 & W. 473 ; and see I'aul v. Dod, 
 2 C. B. 800. 
 
 {(■) See Smith v. Bolt, 9 C. & P. 
 696. 
 
 (/) Street v. Blay, 2 B. & Ad. 
 456; Mossy. Siveet, 16 Q. B. 493. 
 
 [y) Walker v. Melhr, 11 Q. B. 
 478. 
 
 [h) Lciris V. Cosfjreave, 2 Taunt. 2. 
 
PLEADING AND EVIDENCE FOR THE DEFENDANT. 195 
 
 action is broiig-lit hy the seller to recover the Price or Reduction of 
 Yalue of a Horse or any other goods, that the buyer Damages, 
 should be at liberty to show the Breach of Warrant// in 
 Reduction of Damafies (/). 
 
 And where a Horse is bought warranted Sound, and Defence for 
 part of the Price is paid, and on turning out Unsound, he ^s.^i*^^^ of the 
 is found to be w^orth no more than that sum, it is a good 
 defence to an action for the residue. Thus in the follow- 
 ing case, it appeared that the plaintiff sold to the defen- 
 dant 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 Pesidue of 
 the Horse's Price. It was proved that the Horse, at the 
 time of sale to the defendant, was not worth more than 
 \I. lis. Qd., 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 (/<•) . 
 
 Wliere an action is brought to recover back the Price Defence for 
 paid for a Horse, on failure of consideration, as Money had ^o/^^y ^.^^^ 
 and received., the defendant may show that he never received 
 the Price, or that he never warranted, or that there was no 
 Bread) of Warranty, or that there was no Rescission of the 
 contract, or that there was no power to rescind, or no Tender 
 of the Horse, or that being sold on trial, it was kept longer 
 than was necessary for such trial (/). 
 
 The defendant in an action on a Breach of Warranty Defence to an 
 may deny the Warranty, or he may show that, at the 5°*^°^]^°^/ 
 time of Sale, the Horse ansicered his JFa r ra n t y, ^Yhet\ler it Warranty. 
 were Soundness, Freedom from Vice, Fitness for a par- 
 ticular Pm-pose, &c. (m). 
 
 The defendant may prove that the Warranty was added Surreptitious 
 to the form of receipt unknown to him. Thus, in an Warranty, 
 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 Eeceipt by the Plaintifi before it was signed by the 
 defendant. And ]\Ii'. Baron Piatt said, that if the Jmy 
 
 (j) FoiiUon V. Lnttimore, 9 B. & 481. 
 C. 265 ; Momlel v. StceJ, 8 M. & W. (/) Street v. Bhiy, 2 B. & Ad. 450 ; 
 
 858 ; »S'. C. 1 D. N. S. 8 ; Farsons v. and seeBatvsonv.Collis, 10 C. B. 532. 
 Sexton, 4 C. B. 908 ; (S'. C. IG L. J., (;«) See evidence as to Unsound- 
 
 C. P. 184. uess, Vice and Unfitness, ante, pp. 
 
 (/■■) Khnix. Boston, cited 7 East, 191, 192. 
 
 o2 
 
196 
 
 PLEADING, EVIDENCE AND DAMAGES. 
 
 Condition an- 
 nexed to a 
 Warranty. 
 
 liaci 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 {n). 
 
 Where the defendant relies on a condition annexed to 
 a Warranty according to a Notice of certain Rules of Sale, 
 it appears that luiless the matter relating to the Notice has 
 been by way of Proviso upon the Warranty, such condition 
 must be set out in the Statement of Defence. Thus, in an 
 action of Assumpsit on a Breach of Warranty, the De- 
 claration 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 day 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 Avithin the 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 shows 
 it to have been made subject to certain Rules, Avhich have 
 not been compHed with. "What is the meaning 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 Warranty, but of a 
 mere Condition annexed to it. No Notice and Certificate 
 were delivered, and therefore the Contract is to be con- 
 sidered as compilied with. 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. It is 
 enough to say that every word of this plea is consistent 
 with the Contract stated in the Declaration." 
 
 (w) Bliss V. S/ww, before Mr. Baron Piatt, Ex. N. P., May 12, 18.53. 
 
PLEADING AND EVIDENCE FOR THE DEFENDANT. 197 
 
 And Mr. Baron Alderson said, "The meaning of the 
 plea is, that there was a sort of conventional Warranty 
 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 Grurney 
 and Eolfe concurred (o). 
 
 Where an action is brought on a Breach of a Warranty Evidence in 
 of Soundness, the subsequent Recovery of the Horse may Reduction of 
 be i^roved in Reduction of Damages. Evidence may also ^^^^S^^- 
 be given as to the slightness of the disease ; because of 
 com'se, if the disease be slight, the Unsoundness is pro- 
 j)ortionably so, and so also ought to be the Damages ; and 
 if they were very inconsiderable, the Judge might certify 
 to deprive the plaintiff of costs (p). 
 
 In an action for Fraudulent Representation on the Sale Defence to an 
 of a Horse, the defendant may show that he never made action for 
 any Representation on the sale ; or that the Representation ^^^.udulent 
 was honesfl/j made and believed by him at the time, though tion. 
 not true in point of fact ; or that the Horse at the time of 
 sale correspo)ided with the Representation, A statement 
 merely untrue is not sufficient evidence of fraud ; there 
 must be wilful deceit with the object of inducing the 
 plaintiff to act upon it (q). 
 
 The defendant may show that he is not bound by the Disputing the 
 Warranty (r), as where it has been given by a person Warranty. 
 merely entrusted to deliver the Horse (s), or by a Servant 
 after Sale(?'). And where the defendant is neither a 
 HorsedeaJer nor Stahlekeej)er he may prove that the War- 
 ranty was given by an Agent who was expressly /or J /c/ to 
 warrant {u), and that in consequence he had offered to take 
 back the Horse. 
 
 The defendant may show that the Horse at the time of Disputing the 
 sale was Sound, or free from Vice, or that the defect was Unsound- 
 Patent at the time of Sale. And this will depend upon ^®^^' ^^' 
 the same sort of evidence as we have before described (x). 
 The defendant may also show that the Horse was not nnjii 
 
 (o) Smart v. Ilt/de, 8 M. & W. M. 391 ; S. C. 4 Tyrw. 264. 
 723, 728. {t) Hchjer v. Eaivke, 5 Esp. 72. 
 
 [p] Kiddell v. Burnard, 9 M. «&; {n) FeimY.Har7-isoH,ZT.'R,.'tQ\; 
 
 W. 670. See Dawson v. CoUis, 10 and Scotland {Bank) v. Watson, I 
 
 C. B. 532. Dow, 45. 
 
 {q) Orm}-odv.IIuiJi,liM.&W.65l. (x) Evidence as to Unsoundness, 
 
 (>•) See Warranty, Chap. 5, ante. ante, p. 191; Patent Defects, Chap. 
 
 («) Woodinf/ V. Biirford, 2 Cr. & 5, ante. 
 
198 
 
 PLEADING, EVIDENCE AND DAMAGES. 
 
 Subsequent 
 Eecovery. 
 
 Competency 
 of witnesses. 
 
 for the purpose for whicli he was bought ; for iustance, 
 that he has answered his Warranty when used by persons 
 of ordinary skill (//). 
 
 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 Warranty, because where a 
 Horse is warranted it is to be presumed he is fit for im- 
 mediate use (z). 
 
 There was formerly a diiference of opinion as to the 
 competency of a Witness, on the ground of interest. Thus 
 it was at one time held, that the former OA\Tier of a Horse, 
 which he had sold with a Warranty to the defendant, 
 was a competent Witness for him to prove that the Horse 
 when so sold was Sound {a) . And in a later case, Mr. 
 Justice Alderson considered such a Witness incompetent 
 on the ground that the effect of a verdict for the defendant 
 would be to relieve the witness from an action {h). 
 
 Now, however, by the Acts of Yictoria (r) , no person is 
 to be excluded, and the plaintiff or defendant, or the hus- 
 band or wife of each or either, are competent witnesses. 
 
 General 
 damages. 
 
 Special 
 damages. 
 
 Legal and 
 natural con- 
 sequences of 
 the breach 
 of Contract. 
 
 DAMAGES. 
 
 The Damages which iiccessari///, and by imj^lication of law, 
 ensue from the non-performance of the Contract, or the com- 
 mission of the Wrongful act, need not be expressly detailed, 
 and are recoverable under the connnon conclusion of the 
 Statement of Claim {d). 
 
 But damages which really took place, but do not necessa- 
 rily arise from the non-performance of the Contract, or the 
 commission of the Wrongful act, and are not implied by law, 
 must be expressly stated in the Statement of Claim ; so 
 that the defendant may be prepared to dispute the facts. 
 
 The Damages must be the legal and natural consequences 
 of the Breach of Contract, or of the Injury which has been 
 inflicted (c). Thus the costs of an action brought on a 
 
 (y) Geddes v. Fetmington, 5 Dow, 
 164 ; see ante, p. 122, BHclcinghain 
 V. Reeve. 
 
 {z) Coatcs V. Stephens, 2 M. & 
 Rob. 157. 
 
 («) Briggs v. Crick, 5 Esp. 99 ; 
 Baldwin v. Dixon, 1 M. & Rob. 69. 
 
 {b) Bissy. Mountain, I M. & Rob. 
 302. 
 
 (e) 6 k 7 Vict. c. 85 ; 14 & lo Vict. 
 0.99; 16 & 17 Vict. c. 83. 
 
 {d) See Boorman v. Nash, 9 B. & 
 C. 1 52 : Bullen & Leake's Pleadings, 
 4th ed. 19. 
 
 (e) See 1 Chit. Pleading, 6th ed. 
 395; also J'icarsY. Wilcocks, SEa.st, 
 3 ; Smith V. Gree7i, L. R., 1 C. P. D. 
 92 ; 45 L. J., C. P. 28 ; Randall v. 
 Xewson, L. R., 2 Q. B. D. 102 ; 
 46 L. J., Q. B. 259 ; 36 L. T., N. 
 S. 164; 25 W. R. 313— C. A. 
 
DAMAGES. 199 
 
 False Representation made by a third person of the profits 
 of a business, such third person not having been communi- 
 cated with before the action was brouglit, nor having re- 
 presented himself as Agent for the defendants in that 
 action, are not the legal and natural consequences of the 
 Breach of Contract or of the Injury which has been in- 
 flicted (/). But it is otherwise, when on the third person 
 being communicated with, before action was brought, he 
 said that the plaintiffs might safely go on with their 
 action, and also professed to have authority as Agent for 
 the Representations which he made {g). 
 
 This rule illustrates the maxim " In jure non remota 
 causa sed proxima spectatur" — it is the proximate only and 
 not the remote consequences of an act that are to be re- 
 garded. But as to the degree of remoteness it is said that 
 no distinct line can be drawn. In each case the Court 
 must say, as a matter of law, whether it is on the one side 
 or the other {//). In Ilobbs v. Lo)idon and South Western 
 Raihcay Co. (/), the plaintiffs took tickets to travel by a 
 midnight train from W. to H. The train did not go to 
 H., and the plaintiffs were taken to E., which was a station 
 further from the plaintiffs' house than H. was. The 
 plaintiffs walked home in the wet from E., there being no 
 conveyance to be had. It was held that damages might 
 be given for the personal inconvenience and discomfort of 
 having so to walk, but not for illness brought on by the 
 dampness of the night. But where an innkeeper contracted 
 to provide stabling for twelve horses for the plaintiff during 
 a particular fair, and failed to do so, it was held that the 
 plaintiff could recover damages for injmy caused to the 
 Horses by exposui-e to the weather while he was engaged in 
 finding other stables for them (/.•). 
 
 The Judge should direct the Jury as to any established Judge to 
 rules of measuring the Damages applicable to the parti- ^'^f^^ J|"y 
 cuiar case, and tiie omission to do so is a ground tor a new Damages 
 trial (/). 
 
 In accordance with the ride that Damages should be Damages 
 estimated by the legal and natural consequences of the arising from 
 
 "^ ° special cir- 
 
 (/) Ekhanhon v. Diaui, 30 L. J., 
 C. P. 44. 
 
 (ff) Randell v. Triinoi, 2o L. J., 
 C. P. 307. 
 
 (A) Hohhs V. London and South 
 Western Itailuay Co., L. E,., 10 Q. 
 B. 117; 44 L. J., Q. B. .52; 32 L. 
 T., N. S. 3.')2 : 23 W. E. 520 ; per 
 
 Blackbuni, J. 
 
 stances, 
 
 (i) Vbi supra. 
 
 
 \k) 3IcMahon v. Field, L. E., 
 
 
 7 Q. B. D. 591 ; 50 L. J., Ex. 552 
 
 
 -C. A. 
 
 
 (/) Hadlcy v. Baxmdalc, 23 L. J., 
 
 
 Ex. 179 ; fimccd v. Foord, 28 L. J., 
 
 
 Q. B. 17S. 
 
 
200 PLEADING, EVIDENCE AND DAMAGES. 
 
 Breach of Contract, or such as may be reasonably sup- 
 posed to have been in the contemplation of the parties at 
 the time they made the Contract, as the probable result of 
 the Breach of it, it was laid down in Iladley v. Baxendale {m), 
 that where a Contract is made under special circimistances, 
 which are communicated b}^ one of the contracting parties 
 to the other, the Damages residtiug from a Breach of the 
 Contract, which the parties would reasonably be supposed 
 to have contemplated, are the amount of Injury, which 
 woidd ordinarily follow from such a Breach of Contract 
 under the special circumstances. But if the special cir- 
 cumstances are unknown to the party breaking the Con- 
 tract, he, at the most, can only be held to have contem- 
 plated the amount of Injmy which would arise generally, 
 and in the great multitude of cases, not aifectecl by any 
 special cii'cumstances, from such a Breach of Contract. 
 Therefore in a case where a miller employed a carrier to 
 deliver a broken shaft to an engineer for repair, and the 
 carrier was guilty of an unreasonable delay in delivering 
 it, the result of which was the stoppage of the mill, and a 
 consequent loss of profits, it was held that such a loss of 
 profits should not be taken into consideration by the Jury 
 in estimating the Damages, as the carrier had not been in- 
 formed that this would be the result or the probable result 
 of his negligence [m). 
 Effect of And it is held that generally the mere notice or know- 
 
 ledge of the special circumstances will not render the party 
 liable for the special consequences of a Breach under such 
 circmustances, or for the failure of the special purposes of 
 the contract ; unless he has expressly or impliedly contracted 
 upon the basis of such special circumstances, and under- 
 taken to be bound for the consequences. Thus, in an 
 action against a carrier for not delivering a parcel of 
 goods, the mere knowledge on his part that the parcel 
 contained a part of the machmery of a mill, without which 
 the mill could not be erected, was held not sufficient to 
 charge him with the consequences of the stoppage of the 
 mill until the machinery could be replaced ; and the 
 damages were restricted to the cost of replacing the part 
 lost, with interest upon that amoimt whilst remaining 
 unpaid {n). And it is said that "in order that the notice 
 may have any effect, it must be given under such circum- 
 
 (;«) Hadley \. Baxendale, 2^1^.3 ., [n) Leake on Contracts, 1046, 
 
 Ex. 179 ; Sineed v. Foord, 28 L. J., 1017, and cases there cited. 
 Q. B. 178. 
 
 notice. 
 
DAMAGES. 201 
 
 stances as that an actual contract arises on tlie part of the 
 defendant to bear the exceptional loss" (»). 
 
 In the ordinary case of Trover for a Horse, the plaintiff Damages 
 recovers the value of the Horse, and not what the Horse !?"" wrongful 
 might have earned besides io). Special damages may be 
 recovered in trover if laid. Therefore, where in trover for 
 a Horse it was laid as special damage, that the plaintiff 
 was obliged to hire other Horses, it seems that the amount 
 of damages should be the value of the plaintiff's Horse 
 when taken, and the sum be paid for hire, deducting what 
 would have been the expense of keeping his own Horse for 
 the time(jj). 
 
 Where the property in goods has passed under the Con- 
 tract, but the price has not been paid, and the vendor has 
 wrongfully converted and disposed of the goods so as to 
 preclude himself from delivering them, and recovering the 
 price, the vendee can only recover the difference between 
 the value of the goods and the contract price, and cannot 
 recover the full value by suing for the Conversion of the 
 goods instead of for the Breach of Contract {q) . 
 
 Whenever a party is liable for a Breach of a Contract, Damages in 
 either express or implied, it seems that the plaintiff is ^°''^- 
 entitled at all events to nominal Damages ; although the 
 action be framed in Tori for such Breach of Contract, and 
 no actual Damage be proved (r) . But in the case of 
 actions framed in Tort for Breach of Contract (s), the 
 Damages must be such as are capable of being appreciated 
 or estimated, whereas in such as are not founded on Con- 
 tract the Jury may consider the injury to the feelings, 
 and many other matters, which have no place in actions 
 of Contract (f) . 
 
 In an action for the recovery of a fixed pecuniary de- In actions for 
 mand, which the defendant has not shown groimds for ^J^™ ^^^' 
 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 {it) . 
 
 (h) Per Blackburn, J., in Norne C. P. 130. 
 Y. Midhoid Jiailuai/ Co., Jj.H., 8G. (r) Molin v. Steward, 23 L. J., 
 
 P. 131 ; 42 L. J.fC. P. 54. C. P. 148; Chit. Contr. 10th ed. 
 
 (o) Per Jervis, C. J., Read v. 813. 
 Fairbanks, 22 L. J.i C. P. 20C. (s) The action for breach of con- 
 
 [p) Davis V. Osivell, 7 C. & P. tract of marriage is the only ex- 
 
 804 ; see further, Trance v. Gaudet, ception. 
 
 L. R., 6 Q. B. 199 ; 40 L. J., Q. (/) Per Pollock, C. B., Hamlin v. 
 
 B. 121. Great Northern Ilaihcay Co., 1 H. & 
 
 {q) Chincrij V. Viall, 29 L. J., N. 410. 
 Ex. 180; Johnson \.8tcar,2,'ilj. J., {>() Chit. Contr. 10th ed. 813. 
 
202 
 
 PLEADING, EVIDENCE AND DAMAGES. 
 
 Interest. 
 
 Effect of 3 & 
 4 Will. 4, 
 c. 42, s. 28. 
 
 17 & IS Vict. 
 c. 90. 
 
 In Actions 
 which sound 
 in DamaEres. 
 
 However, by 3 & 4 Will. 4, c. 42, s. 28, it is enacted, 
 '' tliat upon all debts or sums certain, payable at a certain 
 time or otlierwise, the Jury on tbe trial of any issue, or 
 on any inc[uisition of Damages, 7nai/, \f they shall think fit, 
 allow Interest to the creditor, at a rate not exceeding the 
 current rates of Interest, from the time when such debts 
 or sums certain were payable if such debts or sums be 
 payable by \'irtue of some written instrument at a certain 
 time; or if imyahle othermse, then from the time when 
 demand of payment shall have been made in writing, so as 
 such demand shall give Notice to the debtor, that Interest 
 will be claimed from the date of such demand until the 
 term of payment : x>roi'idcd that Interest shall be payable 
 in all cases in which it is now payable by law." 
 
 This provision does not extend to special actions on 
 Contracts, strictly for the recovery of unliquidated Damages 
 resulting from the Breach of such Contracts, and ascer- 
 tainable only by a Jmy, for instance, actions for not 
 delivering goods, &c. (,r). Nor, as it appears, to any case 
 in which the claim is not for a sum certain as contradis- 
 tinguished from one the amount of which is merely capable 
 of being ascertained (//). Its effect is to leave it discre- 
 tionary in the Jury to allow Interest even in the cases 
 specified ; in other cases it is to be taken as limiting their 
 discretion, unless there be proof of a written instrument, 
 whereby the sum certain is made payable at a certain time, 
 or of a written demand of the money containing a Notice 
 that Interest from thenceforth will be claimed ; and in all 
 those cases, in which it was payable by law at the time the 
 act was passed, to make it compulsory on the Jury to give 
 Interest. 
 
 By the Act to repeal the laws relating to usury (;:) , it is 
 enacted, that, where Interest is now piayable upon any 
 Contract, express or implied, far payment of the legal or 
 current rate of Interest ; or where upon any debt or sum 
 of money Interest is now payable by any rule of law, the 
 same rate of Interest shall be recoverable as if that Act 
 had not passed. 
 
 But in all actions which sound in Damages, the Jury 
 seem to have a discretionary power of giving what Damages 
 they think proper ; for though in contracts the very sum 
 specified and agreed upon is usually given, yet, if there be 
 
 (.r) Chit. Contr. 10th ed. 599. 43 L. J., Ch. 560. 
 
 {>/) Bill V. South Stofonhhirc (r) 17 & 18 Vict. c. (»0, s. 3. 
 
 Hallway Co., L. R., 18 Eq. 154; 
 
DAMAGES. 203 
 
 any cii'cumstances of hardship or extreme folly, though not 
 sufficient to invalidate the contract, the Jury may consider 
 them, and proportion and mitigate the Damages accord- 
 ingly. Thus, where an action was brought on a promise 
 of 1,000/. if the plaintiff should find the defendant's Owl; 
 the Court held, though the promise was proved, that the 
 Jury might mitigate the Damages {a) . 
 
 And where an action was brought in special Assumj^sit, A Foolish 
 on an agreement to pay for a Horse a barley-corn a nail, bargain, 
 doubling it for every nail in the Horse's shoes; there were 
 thirty-two nails, and this being doubled, every nail in a 
 geometrical progression, came to five hundred quarters of 
 barley ; and on the cause being tried before Mr. Justice 
 Hyde at Hereford, the Jury, under his direction, gave the 
 real value of the Horse, 8/. as Damages ; and this Contract 
 seems to have been held valid ; for it appears by the report 
 that there was afterwards a motion to the Cornet in arrest 
 of Judgment, for a small fault in the Declaration, which 
 was overruled, and the plaintiff had judgment {h). 
 
 And where in consicleration of 2s. 6d. paid down, and An impossible 
 41. 17s. 6d. to be paid at the end of the year, the de- contract, 
 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 
 one, yet it would hold good in law, and that the defendant 
 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 compromised {c). 
 And an action will lie for the performance of a Contract 
 imdertaken for a valuable consideration, though its per- 
 formance turns out to be impossible (unless it has been 
 rendered impossible by the act of the other party), for it 
 is the result of the " heedlessness of the contracting party, 
 if he runs the risk of undertaking to perform an impos- 
 sibility, when he might have provided against it by his 
 Contract " {d). But where the law casts a duty on a man, 
 
 («-) Bac. Abr. Damages (D), 602. (c) TliornhoroicY. JF/ntacrf,2'Ld. 
 
 {b) James y. Morgan, 1 Lev. Ill; Raym. 1164. 
 S. C. 1 Keb. 569 ; and Chit. Contr. [d) Per Williams, J., Hale v. 
 
 10th ed. 20. Rawmii, 27 L. J., C. P. 101. 
 
204 
 
 PLEADING, EVIDENCE AND DAMAGES. 
 
 Cannot be 
 higher than 
 the amount 
 laid. 
 
 In goods 
 bargained 
 and sold. 
 
 In an action 
 for not ac- 
 cepting. 
 
 In an action 
 for not de- 
 livering. 
 
 •which, without fault on his part, he is unable to perform, 
 the law will excuse him for non-performance (p). 
 
 The Jury cannot give higher Damages than the amount 
 laid in the Statement of Claim ; and if judgment be entered 
 for the excess such judgment would be bad (/). But 
 where the Jury find greater Damages than the amount 
 laid, the plaiatiff may enter a ronittitur of the surplus 
 before judgment (r/), or he may amend his claim and have 
 a new trial {h). 
 
 The Damages in an action for the price of a Horse, as 
 Goods hargained and sold, will be the ic/iolc sum, and not 
 merely damages for not accepting and paying for it. 
 
 In an action for not accepting a Horse, the measure of 
 damages is the difference between the contract price and 
 the market price, on the day when the vendor ought to 
 have received him (/). 
 
 In an action for not delirering a Horse according to a 
 Contract, the Damages over and above what is laid spe- 
 cially, wdll be the difference between the price at which the 
 Horse was hougJtt and his value at the time he ought to 
 have been delivered [k) ; even though the vendor in the 
 interim have resold the Horse, provided that the vendee 
 did not assent to rescind the contract (/). And this rule 
 applies to each period of delivery, when more than one {m) ; 
 even though the action is commenced before the periods of 
 delivery have elapsed ; for the repudiation of the Contract 
 before the time for its fulfilment goes to the question of 
 breach, but does not afi^ect the damages {n). If the buyer, 
 at the request of the seller, forbear to enforce the Contract 
 at the time the goods ought to be delivered, but after- 
 wards do so, the measiu-e of damages is the difference 
 between the contract price and the market price when the 
 
 [c) Clarh v. Glasqoxv Assurance 
 Co., 1 Macq. H. of L. Cases, 668 ; 
 Inc/ibaldv. IVestern Kcilghcrry Coffee 
 Co., 11 L. T., N. S. 345. 
 
 (/) Chevchi V. Morris, 2 Bla. R. 
 1300. 
 
 {g) Perceval v. Spencer, Yelv. 45 ; 
 Wray v. lister, 2 Stra. 1110, 1171. 
 
 {h) Tidd, 9th ed. 896, and note 
 (A:); Chit. Cont. 10th ed. 816; and 
 see Dunn v. Crump, 2 B. & B. 300, 
 307 ; 'S'. C. 7 Moore, 137. 
 
 (i) PhiUpotts V. Evans, 5 M. & W. 
 475 ; Boorman v. Nash, 9 B. & C. 
 145 ; Josllnj v. Irvine, II. & N. 
 
 512. See also Bornes v. Hutchinson, 
 13 W. R. 386. 
 
 (/.•) Gainsford v. Carol!, 2 B. & C. 
 624; 8. C. 4 D. & R. 161. 
 
 {I) Lee V. Paterson, 8 Taunt. 540 ; 
 S. C. 2 Moore, 588. 
 
 [m) Brown v. Muller, L . R., 7 Ex. 
 319 ; 41 L. J., Ex. 214 ; 27 L. T., 
 N. S. 272. 
 
 [n) Brou-n v. 3fuller, L.R., 7 Ex. 
 319 ; 41 L. J , Ex. 214 ; 27 L. T., 
 N. S. 272 ; Poper v. Johnson, L. R., 
 8 C. P. 167 ; 42 L. J., C. P. 65 ; 
 28 L. T., N. S. 296 ; Roscoe, N. P. 
 14th cd. 494. 
 
DAMAGES. 205 
 
 buyer so enforces tlie contract, e. g., by buying the goods 
 in the market (o) . Where there has been a written 
 Contract, the vendee cannot enhance the damages by oral 
 proof that the contract price was higher than the market 
 price by reason of the shortness of the time fixed by the 
 Contract for delivery {p). 
 
 Where there is no difference between the contract price Nominal 
 and the market price, the Damages are only nominal (q). Damages. 
 And where goods are paid for by bill, and after a Breach 
 of Contract by the vendor in not delivering the goods the 
 bill was dishonoui-ed, the purchaser was held entitled to 
 recover only Nommal Damages (r). 
 
 In an action for the Price as Goods sold and delivered^ Damages in 
 the Damages will be the Price or value of the Horse. goods sold 
 
 Where an action for Money had and received is brought ^^ergj" 
 for the Eepayment of the Price, and there is a count for j^ money 
 Horsemeat and Stabling, the measure of Damages is the had and 
 Price paid for the Horse ; and also the Expense of Keep received. 
 from the day of Sale ; as the Contract must be taken to 
 have been rescinded from the day it was entered into (s). 
 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 if) . 
 
 The Damages in the case of a Breach of Warrant// must On breach of 
 be treated in the same way as an action on a Contract {u). Warranty. 
 
 The general rule is this, that, where goods are delivered, General rule, 
 which are inferior in quality to those contracted for, the 
 measure of Damages is the difference between the value of 
 the goods of the quality contracted for, and the amount 
 produced by the resale of the goods actually delivered; 
 that is, provided the goods are resold immediately on their 
 being delivered, or if they cannot be resold inunediately, 
 then provided that they are resold mthin a reasonable 
 time {x). 
 
 Where the Horse has been retiu-ned, and no special loss Where^the 
 has accrued, the Damages consist of the price paid {y) . 
 
 (o) Offle V. Mrl Vane, L. R., 2 Q. Q. B. 204. 
 
 B. 275; Ex. Ch., L. K, 3 Q. B. {s) CaswellY.Coare, I Taunt. 566; 
 
 272. See TyersY. liosedale, ^-c. Iron King v. Price, 2 Chit. 416. 
 
 Co., L. E,., 8 Ex. 305 ; Ex. Ch., {t) See Interest, ante, p. 202. 
 
 L. R., 10 Ex. 195; 42 L. J., Ex. [u) Per Tindal, C. J., Watson v. 
 
 185 ; 29 L. T., N. S. 751 ; and see Denton, 7 C. & P. 90. 
 
 Roscoe, N. P. 14th ed. 495. (-») Loder v. Kekule, 27 L. J., C. 
 
 {p) Brady v. Oastler, 3 H. & C. P. 27. 
 
 112; 33 L. J., Ex. 300. (y) CasicellY.Coare,n&\mi. b66\ 
 
 [q) Valp^i V. Oakeley, 16 Q.B. 941. Hdlbutt v. Hickson, L. R., 7 C. P. 
 
 (>■) Griffiths V. Perry, 28 L. J., 438 ; 41 L. J., C. P. 228. 
 
 Horse has 
 been re- 
 turned. 
 
206 
 
 PLEADINO, EVIDENCE AND DAMAGES. 
 
 Where the 
 Horse has 
 not been 
 returned. 
 
 V/here the 
 Horse has 
 been ten- 
 dered. 
 
 Expense of 
 Keep. 
 
 "WTiere the Horse lias not been retiu-ned tlie measure of 
 Damages will be the difference between its A-alue with the 
 defect wan-anted against and the value it would have 
 borne without the defect. It was formerly laid down that 
 the measure of Damages would be the difference between 
 the contract price and that for which it would sell with 
 its defect (s) . But the rule in England is now settled as 
 stated above, and the doctrine is the same in America (a). 
 ^^Tiere the Horse has been resold by the piu'chaser before 
 the Breach of Warranty has been discovered, the price 
 obtained at the second sale may be left to the Jury as a 
 mode of estimating what the real value of the Horse, if 
 perfect, would have been ; but the difference between the 
 price and the purchase-money cannot be given as specific 
 Damage on account of the loss of profit which might have 
 been made on it (b). 
 
 But after a Breach of Warranty, the buyer is entitled 
 to recover a reasonable smu 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 (c) . AVhat length of time and smn 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 Chester man v. Lamb (r/), where an action oi 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 28tli of June. Early in July the Horse was found 
 to be lame; and on the 10th, upon examination by a 
 Veterinary Surgeon, the complaint was found to be 
 Spa\'in (e). On the 11th of July the plaintiff gave the 
 defendant notice that the Horse was Unsound, and that 
 he should return him and demand back the purchase- 
 money ; and on the 21st the plaintiff sent the Horse to 
 Livery, and informed the defendant that he had done so. 
 
 (z) Caswell X. Coare, 1 Taunt. 566. 
 
 \a) See perBuUer,J., 1 T.R. 136 ; 
 per Lord Eldon, C. J., Curtis v. 
 Sannai/, 3 Esp. 82 ; C/are v. Ma//- 
 nard, 6 A. & E. 519 ; Cox v. Walker, 
 ibid. 523, n. ; Jones v. Just, L. R., 
 3 Q. B. 197; 37 L. J., Q. B. 89; 
 Lodcr V. Kchtle, 3 C. B., N. S. 128; 
 27 L. J., C. P. 27; Mayne on 
 Damages, 3rd ed. 162; Sedgwick 
 
 on Damages, 7th ed. 606. 
 
 {b) Clare v. Maynard, 6 A. & E. 
 519 ; Cox V. Walker, ibid. 523, n. ; 
 Mayne on Damages, 3rd ed. 163. 
 
 [e) M'Kenzie v. Hancock, R. & M. 
 436. 
 
 {d) Chesterman v. Lamb, 2 A. & 
 E. 129. 
 
 ((') Spavin, ante, p. 103. 
 
DAMAGES. 207 
 
 On the 27th tho action was commenced; and on the 
 16th of September, the plaintiff (having informed the 
 defendant of his intention to do so) sold the Horse hy 
 auction for twenty-three guineas. The action was brought 
 to recover the difference between that sum and 40/., the 
 price given by the plaintiff, and hkewise 9/. 176'. for the 
 Horse's Keep at Livery till the second sale. 
 
 For the defendant it was insisted that the Horse was 
 not Unsound, and consecj^uently 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 of the Horse back to tlie defendant ; that if the 
 Horse was Unsound, it was the defendant's duty to pro- 
 vide for the charges of standing at Livery ; and therefore 
 the plaintiff, in that case, would be entitled to the 9/. 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 Donman, 0. J., said, "I can conceive no case Seller liable 
 where a purchaser returns a Horse, in which the seller may foi" reasonable 
 not be liable for some Keep. The law upon the subject is ^^^' 
 thus laid down in Mr. Selwyn's Law of Nisi Prius(/). 
 As soon as the Unsoundness is discovered, the buyer should 
 immediately tender the Horse to the seller ; and, if he re- 
 fuses to take him back, sell the Horse as soon as possible 
 for the best price that can be procm-ed ; 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." 
 
 " Whether the time of keeping be reasonable or not, is What is 
 a question for the Jury. But here the defendant alto- reasonable. 
 gether 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 insisting 
 on that point, and taken the opinion of the Jury upon 
 it"(i7). 
 
 (/) Selwyn's 'N. P. 12th ed. vol. (.9) CheHhrmau v. Lamb, 2 A. & 
 
 1, p. G.')G, tit. Deceit, I. 2. E. 129. 
 
208 PLEADING, EVIDENCE AND DAMAGES. 
 
 Keeping the 111 tlio following case, where an action of Assiimpsii was 
 Horse till brought on the Warranty 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 ex- 
 pense 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 Reading 
 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 beyond the time." 
 The Jury gave the plaintiff a verdict for the whole 
 amount (h). 
 Expense con- In the case of Coxy. Walker (/), where an action was 
 ^^^H^* ^^ brought for a Breach of the Warranty of a Horse sold as 
 ranty. 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 Unsoundness. It 
 appeared that the plaintiff had bought the Horse of the 
 defendant for 100/., and had been offered 140/. for him, 
 but the Horse, proving Unsound, the plaintiff had been 
 obliged to give up the bargain, and sell him for 49/. 7s. 
 Lord Denman, C. J., directed the Jury that the plaintiff 
 w^as entitled to recover the difference between the Price at 
 w^hich he was finally sold, and the actual Vcdiie of the 
 Horse if he had been sound at the time of such sale ; and 
 he left to the consideration of the Jmy, as a measure of 
 
 {h) ElUfi V. Chhmocl:, 7 C&P. (i) Cox \. Walker, cited per Lord 
 
 169. Denman, C. J., in Clare v.Maynard, 
 
 G A. & E. 523. 
 
DAMAGES. 209 
 
 tlie value, the Price oflPered for the Horse whilst in the 
 plaintiff's hands. The Jury found for the plaintiff 90/. 13.s. 
 damages. A rule nisi was obtained for a new trial on the 
 ground of misdirection, or for a reduction of damages. 
 Cause was shown in Easter Term, 1836, before Lord Den- 
 man, 0. J., and Littledale, Patteson, and Coleridge, J J. 
 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 tendered Expense in 
 to the defendant and refused. Chief Justice Tindal in ^^^'^s^- 
 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 which was of 
 no use to him, for a certain time, at least to the time when 
 he offered the Horse to the defendant" {k). 
 
 The increase in value consequent on the care and ex- Expenses in 
 pense bestowed on a Horse after iDurchase, and evidenced advancing- 
 
 f , • 1 • \ L 1 T 1 1 the Horse 8 
 
 by an advance of price on a resale, might probably be value, 
 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. Maynard (/), 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, and then the measure of Damages 
 would be the difference between the Price ultimately ob- 
 tained for him, and his actual Value if he had been sound 
 at the time of such last resale [m). 
 
 And where a Horse had been bought in the country. Horse ten- 
 and brought up to London, and after it was discovered ^^^'^^ ami 
 to be Unsound was tendered to the seller, and then sold Auction. ^ 
 by auction. Lord Denman, C. J., told the Jury that the 
 measure of Damages was the difference between the Value 
 of the Horse, if Sound (of which the price was only strong 
 evidence), and the Sum it brought as TJnsound {n). 
 
 That the buyer could not recover the expenses of obtain- Expense of 
 ing a Certificate of Unsoundness from the Veterinary Col- p*^*f-'fl°^J^ 
 lege or of Counsel's opinion, as they were no part of the and Coun- 
 necessary expenses, but were merely for the plaintiff's own sel's opinion. 
 
 (/t) TTafson v. Doiton, 7 C. & P. {»i) Cox v. WalJcer, cited ibid. 
 
 91. («) Clare v. Maynard, 7 C & P. 
 
 (0 Clare v. Maynard, 6 A. & E. 741. 
 523. 
 
 O. P 
 
210 
 
 PLEADING, EVIDENCE AND DAMAGES. 
 
 Travelling 
 Expenses. 
 
 Loss of a 
 good Bar- 
 gain. 
 
 Reselling 
 "vvith a War- 
 ranty. 
 
 Damages for 
 
 comfort, and to convince him that he could bring an action 
 in safety (»). 
 
 But that he was entitled to be paid the expenses of 
 bringing the Horse up to London, and of its Keep (n). 
 
 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 Warranty recover Damages for the 
 "Loss of a good bargain" (o); and on this ground the 
 Court of Queen's Bench gave their decision in C/are v. 
 3Ia//nai'd {p), because the Declaration there merely alleged 
 that the plaintiff houglit 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 contract of sale at a profit had been actually 
 completed before the Unsoundness was discovered, 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 {q). 
 
 If the buyer of a Horse with 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 (;■). He may also recover not only a 
 sum fairly and reasonably paid to the second vendee as 
 compensation is), but also a sum in respect of damages, 
 which he has agreed to make good, although no amount 
 has been fixed, nor any sum actually paid, the mere 
 liability to pay such costs being sufficient to sustain the 
 claim for special damage {£). But he cannot recover any 
 such costs if, by a reasonable examination, he could have 
 discovered the breach of Warranty before sale {u). 
 
 Where there is a misrepresentation of the character or 
 
 741. 
 
 Clare v. Mcynard, 7 C. & P. 
 
 (o) Flureau v. ThornhiU, 2 W. 
 Bla. 1078 ; 1 Sug. Vend. & Purch. 
 14th ed. 237, and the cases there 
 cited. 
 
 [p) Clare v. Maijnard, 6 A. & E. 
 624 ; and see a form of Special 
 Damage in such case giA'en in 
 Pears. Chit. Plead. 202. 
 
 (7) Chtrc V. ilaijuard, G A. & E. 
 524. 
 
 ()•) Lewis V. Pcake, 7 Taunt. 153; 
 S. C. 2 Marsh. 43 ; and see Solph 
 V. Crotwh, L. R., 3 Ex. 44 ; 37 L. 
 J., Ex. 8. 
 
 {s) Bimjle V. Earc, 7 C. B., N. S. 
 145. 
 
 it) Haiidall V. Jioper, 27 L. J., 
 Q. B. 266. 
 
 {/<) TFrir/Jifiip V. Chamberlain, 7 
 Scott, 598; Chit. Contr. 10th ed. 
 816. 
 
DAMAGES. 211 
 
 condition of goods, the vendor is responsible for all injury Misrepresen- 
 which is the direct and natural result of the purchaser's tation. 
 acting on the faith of his representation. Therefore, where 
 a cattle dealer fraudulently represented a cow to be free 
 from infectious disease when he knew that it was not so, 
 and the purchaser placed it with five others which caught 
 the disease and died, the latter was held entitled to recover 
 as damages, in an action for fraudulent misrepresentation, 
 the value of all the cows (.?•) . And the same rule would be 
 applied where there was no fraud, but the beast was war- 
 ranted free from disease, and both parties contemplated its 
 being placed with other stock {y). 
 
 It is illegal to bring a glandered Horse into a public 
 market or fair (s), but there is nothing illegal in a simple 
 sale ; therefore a person who sold a glandered Horse with- 
 out a Warranty and without Misrepresentation was held 
 not responsible for disease communicated to other Horses 
 of the purchaser's in the stable to which he removed it {n). 
 But a breach of statutory duty may not constitute the 
 foundation for a private right of action. A statement 
 that the pm"chaser of a Horse must take it "with all faults" 
 and that the vendor will give no warranty with it, and will 
 refuse all future claim for compensation (where the vendor 
 does nothing to conceal the defect), relieves the vendor 
 from all liability in respect of any defect in the Horse 
 itself [h). If such a statement were followed by a decla- 
 ration of the vendor (who knew the reverse) that he knew 
 the animal to be free from objection, there might be 
 ground for an action of deceit (c). Thus where a statute 
 prohibited persons from sending animals infected with a 
 contagious disease to market, and inflicted penalties on 
 any person so sending them, the act of sending them, if 
 known to be so infected, was a public offence, but did not 
 amount by implication to a representation that they were 
 sound, and did not itself raise as between the vendor of the 
 animals and the purchaser of them any right of the pm*- 
 
 {x) MuUet V. Mason, L. R., 1 C. 27 L. J., Ex. 45. And see per 
 
 P. 559 ; 35 L. J., C. P. 299 ; Mayne Willes, J., L. R., 1 C. P. 563. 
 
 on Damages, 3rd ed. 167; Sherrod {b) Ward v. Hobbs, L. R., 3 Q. 
 
 V. Longdon, 21 Iowa, 518. B. D. 150; 47 L. J., Q. B. 90. 
 
 (v) Smith V. Green, L. R., 1 C. Affirmed by H. L., L. R., 4 App. 
 
 P. D. 92; 45 L. J., C. P. 28. And Cas. 13; 48 L. J., Q. B. 281. 
 
 see Bradlci/ v. Lea, 14 Allen, 20. Reversing judgment of the Queen'a 
 
 (r) 41 & 42 Vict. c. 74, s. 32, Bench Division, L. R., 2 Q. B. D. 
 
 Ord. 442. 331 ; 4(3 L. J., Q. B. 473. 
 
 {a) Hill V. r,alh, 2 H. & N. 299; (r) Ibid, per Lord Cairns, C. 
 
 r2 
 
212 
 
 PLEADING, EVIDENCE AND DAMAGES. 
 
 Where the 
 Damages are 
 very small. 
 
 chaser to claim damages in respect of an iujmy lie liad 
 suffered in consequence of their purchase {d). But it 
 seems that if the defendant had sent tainted animals into 
 the public market-place, and the plaintiff's animals, in 
 that public place, by contact or neighbom-hood had been 
 infected, and the plaintiff suffered loss, that he might have 
 recovered damages for that loss (e). 
 
 Of course if the Unsoundness be slight, so also ought 
 to be the Damages ; and if they be very inconsiderable, 
 the Judge may make an order under Ord. LV. r. 1, that 
 the costs shall not follow the event (/). 
 
 (d) Ward v. Hobhs, ante, note lb). 
 
 [e) Ibid, per Lord Cairns, C. 
 (/') Turner -V. HeyJand, L. R., 5 
 
 C. P. D. 432 ; 48 L. J., C. P. 535 ; 
 41 L. T., N. S. 556. See also 
 Garnet t v. Bradletj, L. R., 3 App. 
 
 Cas. 941; 48 L. J., Ex. 186; 39 
 L. T., N. S. 261. Reversing judg- 
 ment of the Court of Appeal, L. 
 R., 2 Ex. D. 349; 46 L. J., Ex. 
 545 ; 36 L. T., N. S. 725. 
 
( 213 ) 
 
 CHAPTEE X. 
 
 INNKEEPERS, VETERINARY SURGEONS, FARRIERS, HORSE- 
 BREAKERS, TRAINERS, ETC. 
 
 Innkeeper. 
 
 JTis Business 214 
 
 Definition of an Inn id. 
 
 Derivation of Hostler id. 
 
 Who is a Guest id. 
 
 What an Innkeeper undertakes . id. 
 
 Hours of Closing id. 
 
 Travellers and Lodgers 216 
 
 Innkeeper compellable to receive 
 
 a Traveller id. 
 
 May be indicted for refusing . . 217 
 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. 
 
 Liability of Innkeeper limited by 
 
 26 f 27 Vict. c. 41 id. 
 
 Salaried Manager not liable as 
 
 Innkeeper 218 
 
 Goods to which his Liability ex- 
 tends id. 
 
 Hoiv ousted 219 
 
 Where a Guesfs Horse is stolen 220 
 Where another Person's Horse is 
 
 stolen id. 
 
 Principle upoti which Liability 
 
 depends id. 
 
 Horse out at Grass by the Guesfs 
 
 desire id. 
 
 Horse out at Grass tvithout the 
 
 Guesfs desire 221 
 
 Where a Guesfs Horse is injured id. 
 
 Presumption of Negligence 
 against the Innkeeper .... id. 
 
 Not rebutted by Stables being 
 
 out of his Control 222 
 
 A Guesfs Goods not distrainable 223 
 
 Even ivhere he is accommodated 
 out of the Inn id. 
 
 Or uses a Stable provided for 
 
 the Occasion id. 
 
 Innkeeper'' s Lien id. 
 
 Innkeeper has a Lien on a Horse 
 
 for its Keep id. 
 
 Cannot detain a Guest for his Bill 224 
 
 But may detain his Horse .... 224 
 
 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 225 
 
 But not if he knew it at the Time 
 
 it icas left id. 
 
 A Horse left by the Police . . id. 
 
 Giving a Guest credit id. 
 
 A Third Party tvhen ansiverable id. 
 Horse removed to defeat the Lien id. 
 
 Keep during Detention 226 
 
 He cannot use a Horse he de- 
 tains id. 
 
 He could not formerly sell a Horse 
 
 he detained id. 
 
 But may now do so after Six 
 
 Weeks 227 
 
 Provisions o/41 ^42 Vict. c. 38 id. 
 Distrainor may sell a Horse for 
 
 his Keep , 228 
 
 Veteeinaey Suegeon and Faeeiee. 
 No Law peculiar to Veterinary 
 
 Surgeons 228 
 
 Farrier cannot refuse to shoe a 
 
 Horse id. 
 
 When brought at a reasonable 
 
 Time 229 
 
 Answerable for his own Want of 
 
 Skill id. 
 
 Where a Third Person is affected id. 
 When answerable for his Servant id. 
 Action against a Farrier for 
 
 pricking a Horse when shoeing 
 
 him id. 
 
 Collins V. Rodway id. 
 
 Rule as to Farriers 230 
 
 No Insurance against Injury.. 231 
 
 Peculiar Difficulties should be 
 mentioned id. 
 
 Coming at an Unseasonable 
 
 Hour id. 
 
 Parrying, ^c, in the Street, . , . 232 
 Horses standing to be shod not 
 
 distrainable id. 
 
214 
 
 INNKEEPERS, VETEKINAUY SURGEONS, ETC. 
 
 His business. 
 
 Definition of 
 an Inn. 
 
 Derivation of 
 Hostler. 
 
 Who is a 
 Guest. 
 
 Horse may he detained for the 
 
 Price of his Shoeing 232 
 
 Such Lien is favoured by Law id. 
 
 Extends only to each particular 
 Time id. 
 
 Liability to feed a Horse de- 
 tained 233 
 
 "What an Inn- 
 keeper under- 
 takes. 
 
 Hours of 
 closinor. 
 
 HOESEBEEAKEE, TeAINEE, &C. 
 
 Horsebreaker liable for Damage . 233 
 
 Horsebreaker'' s Lien id. 
 
 Trainer^ s Lien id. 
 
 Stallion-master has a Lien .... 234 
 
 For Work done on a Sunday . 235 
 
 INNKEEPER. 
 
 "When a Horse is taken to an Inn, the Innkeeper has a 
 particular responsibility imposed' upon him, in return for 
 which he has certain peculiar privileges. 
 
 An Innkeeper 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 («) . 
 
 The true definition of an Inn is, "a house where the 
 traveller is 'furnished with every thing which he has occa- 
 sion for whilst on his way " [h). 
 
 The word Hostler is derived ah Jiostle; and the word 
 Hospitafor, which is used in the old writs for an Innhohier, 
 is derived ah hospitio ; and Hosjies est quasi Hospitimn 
 petens (c). 
 
 A Guest is properly a lodger or stranger at an Inn ; and 
 the word " Guest " 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 Innkeeper 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 hislnn(/). 
 
 By the 3rd section of the 37 & 38 Yict. c. 49, the hours 
 of closing are thus provided for : — 
 
 " All premises in which intoxicating liquors are sold by 
 retail shall be closed as follows (that is to say) : 
 
 " (1) If situate within the metropolitan district — 
 
 " (a) On Saturday night from midnight until 
 one o'clock in the afternoon on the following 
 Sunday; and 
 
 («) Palm. 374 ; 2 Eol. Eep. 345. 
 [h) Per Bayley, J., Thompson v. 
 Lae\i, 3 B. & Aid. 286. 
 
 (f) Calye'scase, 8 Coke, 32. 
 
 {d) Westbrook v. Griffith, Mo. 
 
 876, 877 ; Saunders v. Plummer, 
 Orl. Bridg. 227. 
 
 (f) See Smith v. Learlove, 6 C. B. 
 132, n. 
 
 (/■) Jones V. Osborn, 2 Chit. 484. 
 
INNKEEPER. 215 
 
 " (b) On Sunday niglit from eleven o'clock 
 until five o'clock on the following morning ; and 
 " (c) On all other days from half-an-hour after 
 midnight until- five o'clock on the same morning ; 
 and 
 " (2) If situate beyond the metropolitan district, and in 
 the metropolitan police districtj or in a town, or 
 in a populous place as defined by this Act — 
 
 " (a) On Saturday night from eleven o'clock 
 until half-an-hour after noon on the following 
 Sunday ; and 
 
 " (b) On Sunday night from ten o'clock until 
 six o'clock on the following morning ; and 
 
 " (c) On the nights of all other days from eleven 
 o'clock until six o'clock on the following morn- 
 ing ; and 
 " (3) If situate elsewhere than in the metropolitan dis- 
 trict, or the metropolitan police district, or such 
 town or populous place as aforesaid — 
 
 " (a) On Saturday night from ten o'clock until 
 half-an-hour after noon on the following Sunday ; 
 and 
 
 " (b) On Sunday night from ten o'clock until 
 six o'clock on the following morning ; and 
 
 " (c) On the nights of all other days from ten 
 o'clock until six o'clock on the following morning. 
 ''Such premises, wherever situate, shall, save as hereinafter 
 mentioned, be closed on Sunday afternoon from three 
 or half-past two, according as the hour of opening shall 
 be one o'clock in the afternoon or half-an-hour after noon, 
 until six o'clock. 
 
 Such premises, wherever situate, shall be closed on Christ- 
 mas Day and Grood Friday, and on the days preceding 
 Christmas Day and Grood Friday respectively, as if Christ- 
 mas Day and Cood Friday were respectively Sunday, and 
 the preceding days were respectively Saturday ; but this 
 provision shall not alter the hours during which such 
 premises shall be closed on Sunday when Christmas Day 
 immediately precedes or succeeds Sunday." 
 
 Section 6 gives power to the licensing justices to vary 
 the hours of closing on Sunday afternoon ; and section 7 
 makes provisions for the granting of early closing licences. 
 And the 44 & 45 Yict. c. 61, enacts, that all licensed 
 premises in Wales shall be closed duiing the whole of 
 Sunday. 
 
216 
 
 INNKEEPERS, VETERINARY SURGEONS, ETC. 
 
 Travellers 
 and Lodsfers. 
 
 Innkeeper 
 compellable 
 to receive a 
 Traveller. 
 
 The lOtli section of the 37 & 38 Yict. c. 49, provides 
 that nothing contained in the Licensing Acts shall pre- 
 clude a person licensed to sell any intoxicating liquor to 
 be consumed on the premises from selling such liquor at 
 any time to bond fide travellers or persons lodging in his 
 house ; but prohibits the holder of a six-day licence from 
 selling any such liquor on Sunday to any person whatever 
 not lodging in his house. The same section also provides, 
 that nothing in the Act contained as to hours of closing 
 shall preclude the sale at any time at a railway station of 
 such liquor to persons arriving at or departing from such 
 station by railroad ( g). And a person, for the purposes of 
 the Licensing Acts, is not to be deemed a bo}id fide 
 traveller unless the place where he lodged the preceding 
 night is at least three miles distant from the place where 
 he demands to be supplied with liquor: such distance to be 
 calculated by the nearest public thoroughfare. 
 
 In calculating the distance from one place to another by 
 the nearest public thoroughfare, for the purpose of satisfy- 
 ing the above definition of a bond fide traveller, it is proper 
 to measiu-e it across a navigable estuary where there is 
 a public ferry which can be used by any person on pay- 
 ment of a toll (A). 
 
 The circmnstances under which the Guest is admitted 
 and supplied are matters for consideration in deciding 
 whether the Innheeper had reason to believe and did believe 
 that he was a Traveller within the description, either when 
 he admitted him or when he supplied him, such as whether 
 he was a stranger or a neighbour, or whether he delayed 
 longer or took more than was consistent with the need of 
 refreshment (/). But the onus of showing that the persons 
 supplied with refreshment are bond fide travellers is on the 
 Innkeeper (Z-). 
 
 It is said that an Inn];eeper may be compelled by the 
 Constable of the Town to receive and entertain a Traveller 
 as his Guest (/) . 
 
 [g) See also Fisher v. Howard, 
 34 L. J., M. C. 42. 
 
 (A) Coulhcrt V. TroTce, L. R., 1 
 Q. B. D. 1; 45 L. J., M. C. 7. 
 
 (i) Taylor v. Humphries, 13 W. 
 R. 136; S. C. 34 L. J., M. C. 1; 
 and see 37 & 38 Vict. c. 49, s. 10. 
 
 (k) Roberts v. Humphreys, L. R., 
 8 Q. B. 483 ; 42 L. J., M. C. 147 ; 
 29 L. T., N. S. 387; 21 W. R. 
 
 885. Previous to the Licensing 
 Act, 1872, it was held, that the 
 burden of proof lay on the informer, 
 see Taylor v. Humphries, tthi supra ; 
 Morgan v. Heclqer, L. R., 5 C. P. 
 485; 40 L. J., M. C. 13; Copley y. 
 Burton, L. R., 5 C. P. 489; 40 
 L. J., M. C. 141. 
 
 (/) 5 Edw. 4,2b; Dalt. cap. 7 
 1 Show. 2C8. 
 
INNKEEPER. 217 
 
 I£ an Innlxceper who has room in his house refuse to May be in- 
 receive a Traveller, after a tender or an attempted tender <iictecl for 
 of a reasonable sum for his accommodation, he may be ' ' ^" 
 indicted for it, and the Indictment must state that the per- 
 son refused was a Traveller {m). 
 
 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 ^*^ ^° ^^- 
 after the Innkeeper^ s family had gone to bed ; 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 {n) . 
 
 But although an Innkeeper cannot refuse a person who Sickness, 
 is sick, he is not bound to receive a person who comes to Drimken- 
 the Inn drunk, or behaves in an indecent or improper °*^''^' 
 manner (o). 
 
 An action lies to recover compensation for any injury in Action for 
 consequence of such refusal ; but, as it appears, not for the ^°™^'^^^^" 
 mere refusal to receive the Traveller or his Horse (/;). 
 
 An Innkeeper, though licensed to let Post-Horses, is not Not liable for 
 liable to an action for refusing to supply a Chaise and refusm^to 
 Horses to enable his Guest to pursue his journey, although Horsed. 
 they be disengaged and a reasonable sum be tendered for 
 them ((/). 
 
 But although a Traveller is entitled to reasonable ac- Traveller not 
 commodation in an Inn, he is not entitled to select a par- ggi*'4*^*^*° 
 ticular apartment, or to insist on occupying a bedroom for ticular apart- 
 the purpose of sitting up all night, so long as the Innkeeper ments. 
 is willing and offers to furnish him -vNath a proper room 
 for that purpose (r) ; nor is he entitled to compel an 
 Innkeeper to furnish rooms in which to exhibit the wares 
 of his Guest, for an Innkeeper is not bound by law to find 
 show-rooms for his Guests, but only convenient lodging- 
 rooms and lodging (s) . 
 
 An Innkeeper [t) was formerly ^r/w a /r/c/e liable to any Liability of 
 
 (w) Fell v. Knight, 8 M. & W. {q) Bicas v. Bides, 1 Stark. 247. 
 
 276; Bcxv. Ivens, 7 C. & P. 219; [r) Fell y. Knight, 8 M. & W. 
 
 Mex V. Luellin, 12 Mod. 445. 269. 
 
 («) Eex V. Iveiis, 7 C & P. 213. («) Burgess \. Clements, 4 M. & S, 
 
 (o) Bex V. Luellin, 12 Mod. 445 ; 306. 
 
 and see Reg. v. Rymer, L. E., 2 {t) As to the difFerence of liabi- 
 
 Q. E. D. 136; 46 L. J., M. C. lity existing between a Boardiiig- 
 
 108; 35 L. T., N. S. 774; 25 House Keeper and an. Innkeeper, 
 
 W. R. 415. see Bansey v. Bichardson, 3 E. & B. 
 
 [p) Haivthorn v. Hammond, 1 C. 144. The law casts no obligation 
 
 & K. 407; Lane v. Cotton, 1 Salk. on aLodging-HonseKeepertotake 
 
 18 ; Colli7)''s case, Godb. 346 ; Palm. care of the goods of his lodger, 
 
 374; 2 Rol. Eep. 315; Kcicton v. Holder v. Sonll>g, 29 L. J., C. P. 
 
 Trigg, 1 Show. 270. 246. 
 
218 
 
 INNKEEPERS, VETERINARY SURGEONS, ETC. 
 
 Innkeeper 
 limited by 
 26 & 27 Vict. 
 c. 41. 
 
 Salaried 
 manager not 
 liable as 
 Innkeeper. 
 
 Goods to 
 •which his 
 liability 
 extends. 
 
 amount for loss not occasioned by the act of Grod or tlie 
 King's enemies («-). But by the 26 & 27 Yict. c. 41, s. 1, 
 he is no longer liable to make good to a Gruest any loss to 
 goods or property brought to his Inn, not being a Horse or 
 other lice animal, or any gear appertaining thereto, or any 
 carriage, to a greater amount than the sum of 30/., except 
 where the loss shall have been occasioned "through the 
 wilful act, default or neglect of the Innkeejter, or any 
 servant in his employ," or " where such goods or property 
 shall have been deposited expressly for safe custody" with 
 him : provided always, that in the case of such a deposit, 
 the Innheeper may require, as a condition of liability, 
 " that such goods or property shall be deposited in a box 
 or other recej)taele fastened and sealed by the person 
 depositing the same." By sect. 3, the Innheeper must 
 exhibit in a conspicuous part of the hall or entrance to his 
 Inn at least one copy of the first section of this Act, in 
 order to be entitled to its benefit. 
 
 It has been held that "wilful" in sect. 1 of the 26 & 27 
 Yict. c. 41, must be read with "act" only, and not also 
 with "fault or neglect" [x). A mere verbal error in a 
 copy of sect. 1 of the Act, exhibited for the purpose of 
 limiting an Innkeeper'' 8 liability, will not vitiate the 
 notice so as to make it ineffectual, provided the notice states 
 correctly the provisions of the Act ; but the omission of a 
 material portion of the Statute will render the notice 
 ineifectual to protect the InnJieeper {■//). A notice was 
 exhibited in an Hotel, containing a copy of the first 
 section of the Act, correct in every particular, only that 
 in the exception the word " act " was accidentally omitted. 
 The Court held that this was a material omission, and that 
 the notice was insufficient to protect the Innkeeper {z). 
 
 The salaried manager of an Hotel belonging to a 
 company is not an Innkeeper, so as to be by law respon- 
 sible for the goods and property of the Gruests, although 
 the usual licence has been granted to him personally (a). 
 
 An Innlceeper is not absolved from responsibility for his 
 Guest's goods by reason of the luggage being placed in a 
 particular room at the request of the Gruest {b) ; nor before the 
 
 (m) Per Bayley, J., Eichmond v. 
 Smith, 8 B. & C. 9. 
 
 {x) Squire V. Wheeler, 16 L. T., 
 N. S. 93, per Byles, J. 
 
 (y) Spice V. Bacon, L. R., 2 Q. B. 
 D. 463; 46 L. J., Q. B. 713; 36 
 L. T., N. S. 896. 
 
 (z) Ibid. 
 
 \a) Dixon v. Birch, L. R., 8 Ex. 
 135 ; 42 L. J., Ex. 135 ; 28 L. T., 
 N. S. 360. 
 
 [h) Per Bayley, J., Jtichmond v. 
 Smith, 8 B. & C. 9. 
 
INNKEEPER. 219 
 
 Innkeepers' Liability Act (c) was passed was he compellable 
 to receive every description of goods with a Guest, but only 
 such as a person ordinarily travels with {d ) . But by the 2nd 
 section of the 26 & 27 Vict. c. 41, it is enacted that, " if an 
 Innkeeper shall refuse to receive for safe custody, as before 
 mentioned, any goods or property of his Gruest, or if any 
 such Guest shall, through any default of such Innkeeper, be 
 unable to deposit such goods or property as aforesaid, such 
 Innkeeper shall not be entitled to the benefit of this Act in 
 respect of such goods or property." However, it is to be 
 presumed that this section does not apply to such goods as 
 an Innkeeper was entitled to refuse before this Act came 
 into operation, as, if made applicable to all goods, an Inn- 
 keeper who refused to convert his Inn into a Warehouse for 
 the goods of his Guest would be disentitled to the benefit 
 of the Act in respect of them. 
 
 It is no defence to an action by a Guest for the loss of How ousted, 
 his goods for the Innkeeper to allege that he was sick or of 
 non sane memortj at the time {e) ; nor that there was no 
 positive negligence on his part (/) ; but the negligence of 
 the Guest is a good defence, if it is gross negligence {g) , or 
 if it occasioned the loss " in such a way as that it would 
 not have happened if the Guest had used the ordinary 
 care that a prudent man may be reasonably expected to 
 take under the circumstances" (/?). 
 
 In Oppenheim v. JF/tite Lion Hotel Co. (/), the plaintiff , who 
 was a Guest at the Inn, went to bed, having a bag contain- 
 ing about 271. in his trouser's pocket. He left his trousers 
 on the ground at the side of his bed farthest from the door. 
 There was a key in the lock of the door, but he only shut 
 the door and did not lock it. He had previously pulled 
 the bag containing the money out of his pocket in the com- 
 mercial room for the purpose of pajdng somebody some 
 money. And the Court of Common Pleas held, that there 
 was evidence of negligence on his part, which occasioned 
 the loss in such a way that it would not have happened 
 had he used the care that a prudent man might reasonably 
 be expected to have taken under the circumstances. 
 
 (c) 26 & 27 Vict. c. 41. Q. B. 524. 
 
 (d) £roadicood v. Granara, 10 Hx. (h) Per Erie, C. J. (Ex. Ch.), 
 417. Cashill V. TFric/Jit, 2 Jur., N. S, 
 
 (e) Cross v. Andreics, Cro. Eliz. 1072. 
 
 622. (0 L. R. 6 C. P. 515 ; 40 L. J., 
 
 (f) j\Iorrjan v. Havoj, 30 L. J., C P. 93; 25 L. T., N. S. 93. 
 ' Ex. 131. Hee also Jones v. Jackson, 29 L. T., 
 
 (g) Armistead t. White, 20 L. J., N. S. 399. 
 
220 
 
 INNKEEPERS, VETERINARY SUKGEONS, ETC. 
 
 Where a 
 Guest's 
 Horse is 
 stolen. 
 
 Where ano- 
 ther person's 
 Horse is 
 stolen. 
 
 Principle 
 npon which 
 liability de- 
 pends. 
 
 Horse out at 
 grass by the 
 Guest's de- 
 sire. 
 
 If the Guest's Horse is stolen tlie Innkeeper is answer- 
 able in an action upon the custom of the realm (/r), 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 servant (/). And inasmuch as 26 & 27 Yict. c. 41, s. 1, 
 specially exempts Horses from the operation of that Act, 
 the Innkeeper's liability as respects amount is not restricted 
 with regard to them. 
 
 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 {m) . 
 
 The liability of an Innkeeper for loss continues only so 
 long as he derives benefit from his visitor or his property, 
 for if the Innkeeper could not gain a profit, he is not liable 
 to suffer loss without a special undertaking {n), for so long 
 only is a visitor a Guest. Upon this principle a person 
 leaving a Horse at an Inn becomes a Guest, while a person 
 leaving dead goods at an Inn does not become a Guest, for 
 the Horse must be fed, by which the Innkeeper has gain (o). 
 And therefore the Innkeeper is liable for the loss of the 
 Horse, although its owner is not staying at the Inn. 
 Thus, too, when a person came to an Inn, and desired to 
 leave some goods there till the next week, which was 
 refused, and then stayed to drink something, during which 
 time his goods were stolen, the Innkeeper was held to be 
 liable (7:*). But if a man who has been a Guest, gives up 
 his room, and quits the Inn for a few days, intending to 
 return, and asks for permission to leave his goods at the 
 Inn, and the Innkeeper takes charge of them, the Innkeeper 
 is clothed only with the ordinary duties and responsibilities 
 of a bailee {q). 
 
 An Innkeeper is only bound by the custom of the realm 
 to answer for those things that are infra hospitimn, 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 uilful negligence (/•) : for instance, an action hes against 
 
 ik) Fitzherbert'sNat. Brev. 943; 
 Jelly V. Clark, Cro. Jac. 189 ; York 
 V. Grcenanqh, 2 Lord Kaym. 867 ; 
 S. C. 1 Salk. 338. 
 
 {I) 1 Salk. 338 ; 1 Rol. Abr. 3 ; 
 Moor, 877; Cro. Jac. 224; Yelv. 
 162; Bac. Abr. tit. Inns and Inn- 
 keepers. 
 
 (w) 1 Rol. Abr. 3. 
 
 Gelley v. Clerk, Cro. Jac. 188. 
 York V. Grindstone, 1 Salk. 
 
 {n) 
 
 (0) 
 388. 
 
 (;;) BoDiet v. Mellor, 5 T. R. 
 273. 
 
 (q) Smith 
 132. 
 
 (r) Saunders v. Flummcr, Orl. 
 Bridg. 227. 
 
 Dcarlove, 6 C. B. 
 
INNKEEPER. 221 
 
 an Iiinhecper wlio volimtarily leaves open the gates of Ms 
 close, whereby the Horse strays out and so is lost or 
 stolen («). 
 
 But he is answerable if he has put the Horse out to grass Horse out at 
 without the owner requiring him to do so («) . And where f^^^^ without 
 an Innkeeper took in a Horse and gig on a Fair day, and desire, 
 the Hostler, without the Gruest'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 VQS])on?>\h\Q. And Mr. Justice Taunton said, 
 " It does not appear that the gig was put in this place at 
 all at the request or instance of the plaintiff ; the place is 
 therefore a part of the Inn ; for the defendant by his con- 
 duct treats it as such. If he would wish to protect himself, 
 he should have told the plaintiff that he had no room in 
 his yard, and that he would put the gig in the street, but 
 could not be answerable for it ; not having done so, he is 
 bound by his common law liability " {t). 
 
 It is said in Calye's case {u), that an Innliceper'' s liability Where a 
 is confined to " bona et catalla^'' and that he is not answer- i^^u^^re?"^^^ 
 able if the Guest himself is beaten, as that is not a damage 
 to " hona et catalla.^^ But it seems that this statement 
 must be simply taken to mean that the Innkeeper is not 
 bound to insure his Guest ; for in a recent case it was held 
 that it is the duty of an Innkeeper to take reasonable care 
 of the persons of his Guests, so that they are not injured by 
 reason of a want of such care on his part whilst they are in 
 the Inn as his Guests [x) . Where the Guesfs Horse has 
 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 (//) . 
 
 Where a Guest's Horse is injured, there is always a Presumption 
 presumption of negligence against the Innkeeper. It is of negligence 
 questionable, indeed, if in any case this presumption can innkeeper.^ 
 be rebutted without proof of actual negligence on the part 
 of the Guest. The case of Bauson v. Chamney {z) has been 
 
 (s) Bao. Abr. tit. Inns and Inn- S. C. 8 Co. 32. 
 
 keepers; Calye's case, 8 Coke, 32 b ; {x) Sandys v. Florence, 47 L. J., 
 
 Moor, 1229 ; Pop. 127 ; Moslcy v. C. P. 598, per Lindley, J. 
 
 Fosset, 1 Rol. Abr. 3 ; 4 Leon. 96 ; (//) Stannion v. Davis, 1 Salk. 
 
 2 Brownl. 255 ; Richmond v. Smith, 404 ; S. C. 6 Mod. 323. See also 
 
 S. B. & C. 11. Bather v. Bay, 32 L. J., Ex. 171 ; 
 
 (/■) Junes V. Tyler, 1 A. & E. 522; 2 H. & C. 14. 
 
 S. C. 3 N. & M. 576. (z) Dawson v. Chamnei/, 13 L. J., 
 
 (m) Calye's case, S Rep. 32 a; Q. B. 33; 6'. C, 5 Q. B'. 165; S. C. 
 
222 
 
 INNKEEPERS, VETERINARY SURGEONS, ETC. 
 
 Not rebutted 
 by stables 
 being out of 
 bis control. 
 
 relied upon to sliow that this presumption maybe rebutted 
 by giving proof of such skilful management on the part of 
 the Innkeeper, as to convince the Jury that the damage 
 could not have been occasioned by the negligence imputed, 
 But this view of the law was held to be untenable by 
 Pollock, C. B., in the ease of Morgan v. Eavey («), who, in 
 delivering the judgment of the Court of Exchequer, said, 
 " We think the cases show there is default in the Innkeeper 
 wherever there is a loss not arising from the plaintiff's 
 negligence, the act of Grod, or the Queen's enemies" [b). 
 
 And it must be borne in mind that, though there be a 
 private arrangement between the Innkeeper and the Keeper 
 of the Inn Stables or Hostler, and the result of that 
 arrangement be that as between him and the Innkeeper, the 
 Innkeeper has lost all control over the >Stables, yet as between 
 
 7 Jur. 1037. See also Cashill v. 
 Wright, 2 Jur., N. S. 1072. 
 
 («) Morgan v. Eavcy, 6 H. & N. 
 265; S. C. SOL. J., Ex. 131. 
 
 (i) According to the report of 
 tbe case of Dawson v. Chamncy, in 
 13 L. J., Q. B. 33, and in 5 Q. B. 
 16-1, the Horse of the Guest was 
 left at the defendant's Inn on a 
 raarket day, and given in charge to 
 the Ostler, who placed it in a stall 
 where there was another Horse, 
 which kicked it, and so inflicted an 
 injury. On these facts it was held 
 by the Coui't of Queen's Bench, 
 that in such case there was a pre- 
 siimption of negligence on the part 
 of the Innkeeper or his servants ; 
 but that this presumption might 
 be rebutted by gi-ving proof of such 
 skilful management on his or their 
 part as to convince the Jury that 
 the damage could not have been 
 occasioned by the negligence im- 
 puted. But a material difference 
 will be found in the report of the 
 facts of this case in 7 Jur. 1057, 
 for it is there stated, that " there 
 was no e-vidence of the manner in 
 which the Horse received the in- 
 jury for which the action was 
 brought." It appears that the 
 only report of this case which was 
 seen by the Coui-t, when giving 
 judgment in the case of Morgan v. 
 Eavei/, was that of the Jurist, and 
 that'Pollock, C. B., foimded the 
 only possible reconcilement of 
 Dawson v. C7iamne;/ with the law 
 upon this point, which is the very 
 
 point of discrepancy between the 
 Jurist and the other Reports. He 
 said, " The only case which points 
 the other way is that of Dawson v. 
 ChaDuiei/, and according to the re- 
 port of that case in 7 Jui*. 1057, 
 there was no e^ddence of the 
 manner in which the Horse re- 
 ceived the injury for which the 
 action was brought ; and this may 
 be the explanation of that case, for 
 though the damage happening to 
 the Horse from what occurred in 
 the stable might be evidence of 
 default or neglect, still it was not 
 shown how the damage arose, and 
 it was not even shown that it arose 
 from what occurred in the stable. 
 It might have arisen from some- 
 thing which had occurred long 
 prior to the Horse being put into 
 the custody of the Innkeeper. 
 That would distingiiish this case, 
 and reconcile all the cases with the 
 general current of authority." It 
 matters not indeed, so far as the 
 law is concerned, which report of 
 the case of Dawson v. Vliamncy is 
 authentic, for if that contained in 
 the L. J. and Q. B. Reports is the 
 correct one, it has been overruled 
 by Morgan v. Ravey ; and if that 
 of the Jurist is to be taken, it does 
 not establish the point that in case 
 of loss to the Guest, the presump- 
 tion of negligence on the part of 
 the Innkeeper can be rebutted, 
 otherwise than by proof of actual 
 negligence on the part of the 
 Guest. 
 
INNKEEPER. 223 
 
 the Innlxcepcr and lils Gruest no sucli private arrangement 
 can be recognized, and the Inn'keeper'' 8 liability towards him 
 for injury done to the Horse remains imimpaired (c). 
 
 For the security and protection of travellers, Inns are A Guest's 
 allowed certain privileges, such as that the Horse and f.°,?'^^.^°^, 
 goods of the Guest cannot be distrained, &c. (f/). 
 
 If an Innhceper takes his Gruest to rooms that he has Even where 
 provided for him, on account of not having sufficient room ^® ^,^ accom- 
 
 • i-T J.1 ••1 -y p f i / \ modated out 
 
 m ms inn, these rooms are privileged from distress (e). of the Inn. 
 
 So also if a Gruest's Horse is put into a Stable provided Or uses a 
 for a particular occasion, it cannot be distrained. Formerly, stable pro- 
 however, a different view was taken in a similar case. For "^i^ed for the 
 where the tenant of a Stable had sub-let it to an I)inkeepey 
 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, 0. J., thought that the 
 owner of the Horses had his remedy against the Inn'keeper 
 under the implied warranty for safe custody (_/). 
 
 An InnJceeper has a general lien on all goods and chattels 
 belonging to his Guest {g). 
 
 He has no lien on goods sent to his Guest for a parti- Innkeeper's 
 cular purpose, and known by him to be the property of ^^^^• 
 another person (/?), but his lien extends to goods brought 
 to the Inn by a Guest, though they belong to a third 
 party, provided they be such as persons ordinarily travel 
 with (/), as these he is compelled to receive. And in 
 Throfall v. Boncich (k), it was held that his lien extends to 
 all the goods which he has actually received with a Guest 
 whether the property of the Guest or not, and is not limited 
 to such things as he was bound to receive with the Guest. 
 
 As an I)uike(per by law is bound to receive the Horse of Innkeeper has 
 a traveller in case his stable is not full, he has therefore a ^^^"^ o^ ^ 
 lien for its keep upon a Horse left with him, and received keep. 
 by him in his character as Innl-eeper {I), whether it be 
 kept in the stable or put out to grass. For the pasture 
 
 (c) Bather v. Day, 32 L. J., Ex. (/;) BroadwoodY. Granara, 10 Ex. 
 
 171'; 8L. T., N. S. 205. 417. 
 
 (f/) 1 Rol. Abr. 668 ; Co. Litt. 47. (0 Snead v. JFatkins, 26 L. J., 
 
 (e) See per Pollock, C. B., Wil- C. P. 57. 
 
 Hams V. Holmes, 22 L. J., Ex. 284. (A) L. R., 10 Q. B. 210 ; 44 L. 
 
 (/) Crosier v. TomJdnson, 2 Ld. J., Q. B. 87; 32 L. T., N. S. 32 ; 
 
 Ken. 439; S. C. Barnes' Notes, Ex. Ch. Affii-ming, L. R., 7 Q. B. 
 
 472. 711 ; 41 L. J., Q. B. 266 ; 26 L. T., 
 
 {g) MulUner v. Florence, L. P., N. S. 794. 
 
 3 Q. B. D. 484; 47 L. J., Q. B. (/) Smiihw. I)rarlovc,(jC.'Q.\ro\ 
 
 700 ; 38 L. T., N. S. 167. H. C 12 Jur. 377. 
 
224 
 
 INXKEEPERS, VETERINARY SURGEON?, ETC. 
 
 Cannot detain 
 a Guest for 
 his bill. 
 
 But may 
 
 detain bis 
 Horse. 
 
 His right of 
 lien. 
 
 Horses and 
 carriages 
 sent to lively 
 at an Inn. 
 
 Cannot sell 
 one Hoi'se for 
 tlie keep of 
 others. 
 
 of siicli persons, set up by law for entertainment, has the 
 same privilege as the stables, and an action of Trover can- 
 not bo maintained against him for detaining the Horse of 
 his Gruest, unless the money due for its keep has been paid 
 or tendered («^). 
 
 An Innl^eeper cannot detain a Guest, or take off his 
 clothes, in order to secm-e payment of his bill («). 
 
 But he may detain his Horse, or may bring an action for 
 lodging, &c. without any special contract (o). 
 
 It has been said that the Horse of a Guest can be de- 
 tained only for his own meals, and not for the meals and 
 expenses of the Guest (75). But this doctrine was doubt- 
 ful ((z). And in a recent case (r), the Court of Appeal 
 held, that a chattel although deposited with the Innkeeper 
 and placed by him apart from the personal goods of the 
 Guest, may be detained by him on account of money owing 
 to him for the lodging, food, and entertainment of the 
 Guest. 
 
 An InnJceeper^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 (s). So in a case in 
 which a Trainer of Racehorses went to an Inn, stayed 
 there for a length of time, and put the Horses into train- 
 ing ; nothing being said of any special Contract between 
 him and the Innkeeper, it was held by the Exchequer 
 Chamber that he came there on the ordinary terms of an 
 Inn, and that the Innkeeper had a lien on the Horses 
 for their keep, although they were frequently taken off the 
 premises for days together to attend races (t). 
 
 But if a man send his Horses and Carriage 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 (s). 
 
 Where several Horses are brought to an Inn by the 
 same person, each by the custom of London may be sold 
 for his own keep only and not for the keep of the others ; 
 
 (to) 2 Eol. Abr. 85; Cro. Car. 
 271 ; Cai-th. 150 ; 1 Salk. 388. 
 
 (w) Bac. Abr. Tit. Inns and Inn- 
 keepers, 451 ; Sunholf y. Alford, 3 
 M. & W. 248. 
 
 (o) Saunders v. Plummer, Orl. 
 Bridg. 227 ; Smith v. Dearlove, 6 
 C. B. 135. 
 
 {p) Bac. Abridg. Inns and Inn- 
 keepers. 
 
 {q). See Story on Bailments, 503, 
 
 504. 
 
 (r) Florence v. Mullbier, L. R., 
 3 Q. B. D. 484; 47 L. J., Q. B. 
 700; 38 L. T., N. S. 167. 
 
 {s) Smith V. Dearlove, 6 C. B. 
 135 ; S. C. 12 Jur. 377. 
 
 [t) Allen V. Smith, 9 Jur., N. S. 
 230, 1284 ; and see MuUiner v. 
 Florence, L. R., 3 Q. B. D. 484 ; 
 47 L. J., Q. B. 700; 38 L. T., 
 N. S. 167. 
 
INNKEEPER. 225 
 
 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 (r). 
 
 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 °^ a Horse 
 he has satisfied the Innlxceper for its meat ; for the Inn- -s^ron^doer. 
 keeper is not bound to inquire who is the owner of the 
 property brought to his Inn(s). 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" (/). 
 
 But if he knew at the time the Horse was left, that But not if he 
 the person who brought it was a wrongdoer, and not the ^^^^, ^^ ^^ 
 owner of it, he has made himself a party to thq wrongful -„ras lef t/ 
 act, and has no lien upon the Horse for its keep ; and 
 the question as to the scienter must be left to the Jury (?<). 
 
 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 ^^ *^® Police. 
 a person was stoj)ped 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 direction of the Innkeeper, selling the 
 Horse for its keep, was liable to the owner of the Horse 
 in an action of Trover {x). 
 
 If the Innkeeper previously agree to give the Guest Giving a 
 credit for his entertainment, he cannot detain his Horse ^^^^^^ credit. 
 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 (//). 
 
 If a third parttj promise the Innkeeper to satisfy him A third party 
 for the meat of the Horse, in consideration that he will ^^^f"^ answer- 
 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 (;:). 
 
 But where the owner of a Horse has fraudulently got Horse re- 
 
 (;•) Moss V. Townscnd, 1 Bulst. («) Johnson v. HiU, 3 Stark. N. 
 
 207. But see the Innkeepers' Act, P. C. 172. 
 
 1878 (41 & 42 Vict. c. 38), s. \,post. {x) Binns v. Flgot, 9 C. & P. 208. 
 
 («) Turrell v. Crau-Ui/, 18 L. J., (y) Jones v. Thioioe, 8 Mod. 172 ; 
 
 Q. B. 155. ' ,S'. a. Jones v. Fearle, 1 Str. 557. 
 
 (0 Robinson v. IValler, Pop. 127. (:) Hutton, 101. 
 
226 
 
 INNKEEPEKS, VETERINARY SURGEONS, ETC. 
 
 moved to de- 
 feat the lien. 
 
 Keep during- 
 detention. 
 
 He cannot 
 use a Horse 
 he detains. 
 
 He could not 
 formerly sell 
 a Horse he 
 detained. 
 
 possession of it to defeat the lien, the Innliceper 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 {a). But 
 it is held that the Iinil-ceper must make fi'esh pursuit 
 after it, and retake it, otherwise the custody is lost ; for he 
 cannot talce it at any other time, as it is in the nature of a 
 D/sfress. But where there is a lien by agreement, it is in 
 the nature of a Pledge, and the Innheeper may retake the 
 Horse, not only on fresh pursuit, but also wherever he 
 finds it (^). 
 
 It has been held that an In)ikeeper 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 di- 
 rected that the IiviJceeper should not give him any more 
 food, as he would not be responsible for it, and the 
 question ^^'as, whether the OA^'ner was chargeable for the 
 food given after this direction. Chief Justice Holt was at 
 first inclined to consider this a diseharge, and that the 
 Horse, though he might be retained by the Innheeper, 
 was but in the natiu-e of a Distress, and that being in the 
 custody of the Innl-ceper in his Inn, it was a pound 
 eovert, and the Horse consequently ought to be main- 
 tained at his peril. However, he afterwards changed his 
 opinion, and directed that this was no discharge ; for then 
 any Innkeeper might be deceived, and his security would 
 be lessened (r). But his first opinion appears to be con- 
 sistent Avith the law [d). 
 
 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 (e). 
 
 An Innkeeper could not formerly sell the Horse he de- 
 tained for his meat and so pay himself, because, as the 
 Court said in Jones v. TJiurloe, "he is not to be his own 
 carver" {f). And even if the Horse "eat out the price 
 
 [a) Wallace v. Woodqatc, Ry. & 
 M. 193 ; S. C. 1 C. & P. 575. 
 
 {b) liosse V. Bramstcad, 2 Rol. 
 Eep. 438. 
 
 (f) Gelher v. BerkvJeij, Skin. 648 ; 
 and see Scarfe v. Morgan, 4 M. & 
 W. 270. 
 
 [d) Co. Litt. 47 b; British Em- 
 pire Shipping Co. v. Somes, 28 L. J., 
 
 Q. B. 220 (Ex. Ch.); -S". C. 30 
 L. J., Q. B. 229. See also Scarfe 
 V. Ilorgan, 4 M. & W. 279, 284. 
 
 (f) JJ'estbrook v. Griffith, Moor. 
 870 ; Eobinson v. Walter, 3 Bulstr. 
 270 ; Bac. Abr. tit. Inns and Imi- 
 keepers. 
 
 (/) Jones V. Thurloe, ^Modi. 172 ; 
 S. C. Jones v. Pearle, Str. 556. 
 
INNKEEPER. 227 
 
 of its head," that is, consume as much as it is worth, he 
 could not sell it, except he lived in London or Exeter, 
 where by the custom of those places, if the Horse is the 
 property of the guest, he may take it as his own upon the 
 reasonable appraisement of four of his neighbours {y). 
 
 But now, by the Innkeepers' Act, 1878 (41 & 42 Vict. But may now 
 c. 38), s. 1, "the landlord, proprietor, keeper or manager sell Horse 
 of any hotel, inn or licensed public-house shall, in addition -^^eeks. 
 to his ordinary lien, have the right absolutely to sell and 
 dispose by public auction of any goods, chattels, carriages, 
 Horses, wares or merchandise which may have been de- 
 posited with him, or left in the house he keeps, or in the 
 coach-house, stable, stable-yard, or other premises appur- 
 tenant or belonging thereunto, where the person depositing 
 or leaving such goods, chattels, carriages. Horses, wares or 
 merchandise shall be or become indebted to the said inn- 
 keeper either for any board or lodging or for the keep 
 and expenses of any Horse or other animals left with or 
 standing at livery in the stables or f].elds occupied by such 
 Innhecper : 
 
 "Provided that no such sale shall be made until after the 
 said goods, chattels, carriages. Horses, wares or merchandise 
 shall have been for the space of six weeks in such charge 
 or custody or in or upon such premises without such debt 
 having been paid or satisfied, and that such Iinikeeper, 
 after having, out of the proceeds of such sale, paid himself 
 the amount of any such debt, together with the costs and 
 expenses of such sale, shall on demand pay to the person 
 depositing or leaving any such goods, chattels, carriages. 
 Horses, wares or merchandise the surplus (if any) remaining 
 after such sale : 
 
 " Provided further, that the debt for the payment of 
 which a sale is made shall not be any other or greater debt 
 than the debt for which the goods or other articles could 
 have been retained by the Ijuikcejjer under his lien : 
 
 " Provided also, that at least one month before any such 
 sale the landlord, proprietor, keeper or manager shall cause 
 to be inserted in one London newspaper and one country 
 newspaper circulating in the district where such goods, 
 chattels, carriages. Horses, wares or merchandise or some of 
 them shall have been deposited or left, an advertisement 
 
 in/) Baldivay v. Ouster, 1 Vent. 207 ; Robinson v. Walter, 3 Bulstr. 
 71; TTesibrook v. Griffith, Moor. 270; Bac. Abr. tit. Inns and Inn- 
 876 ; Moss v. Tounsend, 1 Bulstr. keepers. 
 
 y2 
 
228 
 
 INNKEEPERS, VETERINARY SURGEONS, ETC. 
 
 Distrainor's 
 power of sale 
 by statute. 
 
 containing notice of such intended sale, and giving sliortly 
 a description of the goods and chattels intended to be sold, 
 together with the name of the owner or person who de- 
 posited or left the same, where known." 
 
 Under statute 5 & 6 Will. 4, c. 69, s. 4, requiring the 
 distrainor of any Horse (which word "Horse" may 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 may, by a proper exercise of discretion, sell one 
 or more, for the expense of all. And it Avould seem that 
 he may repeat such sale from time to time as need re- 
 quires [It). This statute has been repealed. But its pro- 
 visions have been substantially re-enacted by 12 & 13 Vict. 
 c. 92, excej^t as to the power of sale. And this was 
 restored by 17 & 18 Vict. c. 60, s. 1. 
 
 No law pecu- 
 liar to Vete- 
 rinary Sur- 
 geons. 
 
 Farrier 
 cannot re- 
 fuse to shoe 
 a Horse. 
 
 VETERINARY SURGEON AND FARRIER. 
 
 There is no law which applies to a Vctcnnanj Surgeon 
 in particular ; and where there is no contract, he must go 
 upon a qua nf tun meruit. And an usage to charge for 
 attendance, where there is not much medicine required, is 
 too uncertain (/). 
 
 Where a man takes upon himself a public employment 
 he is bound to serve the public as far as his employment 
 
 I 
 
 (Ji) Layton v. Il/nri/, 8 Q,. B. 811. 
 
 (/) Zaiw V. Cotton, 1 Salk. 18. 
 The Eoyal College of Veterinary 
 Sm-geons was founded in the year 
 1791, and received a Charter of in- 
 corporation in the year 1815. By 
 its Charter, Veterinary Surgery is 
 constituted a profession, and the 
 registered members of its body are 
 alone to be recognized as the mem- 
 bers of the Veterinary profession. 
 Its diploma is granted only to per- 
 sons who have qualified themselves 
 by a certain educational course 
 tested by examination. In the 
 earlier editions of this work it was 
 suggested that it would be a secu- 
 rity to the Public against unc[iiaH- 
 fied practitioners, if the Legisla- 
 ture were to impose a penalty on 
 persons practising as Veterinary 
 Surgeons, without possessing a 
 diploma from this or some other 
 diily constituted body. This sug- 
 gestion is carried out by the Vete- 
 
 rinary Surgeons Act, 1881 (44 & 45 
 Vict. c. C2), which by sects. 11, 12, 
 imposes a penalty not exceeding 
 50/. or imprisonment with or with- 
 out hard labour, for any term not 
 exceeding twelve months, on any 
 l^erson obtaining registration by 
 false representation, or on the re- 
 gistrar for wilful falsification of 
 the register of Veterinary Siu-- 
 geons. The Act, by sects. 13, 14, 
 further provides for the registra- 
 tion of colonial or foreign practi- 
 tioners possessing some recognized 
 diploma; by sect. 16 imposes a 
 penalty of 50/. on any person falsely 
 reiH-esenting himself to be a Mem- 
 ber of the Royal College ; and by 
 sect. 17 imjioses a like iienalty on 
 any person who, after 1883, prac- 
 tises without the necessary quali- 
 fications, and further incajjacitates 
 any such person from i-ecovering 
 any fee for iDcrforniing any vete- 
 rinary operation. 
 
VETERINARY SURGEON AND FARRIER. 229 
 
 goes, or an action lies against him for refusing. Thus if 
 a Farrier refuse to shoe a Horse (/), an Innkeeper to re- 
 ceive a guest, a Carrier to carry, when he may do it, an 
 action lies (k) . 
 
 But the Horse must be brought to be shod at a reason- When 
 able time for such purpose ; because if brought at an irregu- 'wrought at a 
 lar hour, the Farrier may say, " I will not do it" (y ). tfme°^^ ^ 
 
 A Farrier is liable for laming a Horse in shoeing it, and Answerable 
 the action is founded on the implied contract, that every for his own 
 workman undertaking any work will perform it properly (/), "^^^^* o^ skill, 
 because it is the duty of every artificer to exercise his art 
 rightly and truly as he ought {m) . 
 
 And an action may be maintained for a breach of duty. Where a third 
 arising out of a contract with a third person. Thus pey^on is 
 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 
 iipon the Case for pricking of his Horse ; and the master 
 also shall have his action tipon the Case for the special wrong 
 which he hath sustained by the non-payment of his money 
 occasioned by this" {n). 
 
 And where a Horse has been injured in shoeing from when an- 
 the negligence of a Farrier's servant, the master is liable (o), swerable for 
 But not if the wrong be u-iifnl, as if the servant maliciously ^^^ servant. 
 drives a nail into the Horse's foot in order to lame him (/j). 
 
 An action lies against a Farrier for pricking a Horse, Action 
 when shoeing him {q), and where one Smith lends a Horse against a 
 to another, and the second pricks him in shoeing, the action pHekin""- a" 
 lies against the first, or the second, in the option of the Horse.'' 
 owner (r). 
 
 The Rule of Law as to the extent of a Farrier's liability roUhis v. 
 in shoeing a Horse, is fully and clearly laid down by Chief liodwaij. 
 Baron Pollock in the case of Collins v. Roduay {s) ; and as 
 that case does not appear in any of the Reports, it will 
 
 (.;•) 14 Hen. 6, 18. (;;) Jones x. Hart, 2 Salk. 440. 
 
 {k) See note (*), ante. [q) Nat. Brev. 94 d; 17 Edw. 4, 
 
 (0 2 Chit. Pleading, 6th ed. 262. 43 ; 11 Edw. 4, 6 ; 56 Edw. 3, 19; 
 
 {m) Rex V. EUdcrby, 1 Saund. 3 Hen. 6, 36 ; 14 Hen. 6, 88 ; Orig. 
 
 312, n. 2. 106 a: 48 Edw. 3, 6, pi. 11. 
 
 [n) Everard \ . Bopldns, 2 Bidstr. (/) 12 Edw. 4, 13. 
 
 332 ; and see Longmcad v. Ilolllday, (a) Collins v. Itodicay, before Pol- 
 
 6 Exch. 704. lock, C. B., Guildhall, Dec. 15, 
 
 (o) 1 Bla. Com. 431; Raiidlcson 1845; 14 Veterinarian, 102. 
 V. Muryrnj, 8 A. & E. 109. 
 
230 INNKEEPERS, VETERINARY SURGEONS, ETC. 
 
 here be given at considerable length. The following is 
 compressed from an exact copy of the shorthand notes 
 which were taken at the trial, and afterwards published in 
 the Veterinarian. It was an action brought against the de- 
 fendant, a Farrier, for unskilfulness 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 grey 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 appeared that 
 subsequently she had been tm-ned out for nine weeks. 
 
 The other, a black entii-e 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 withdrawal 
 of two of the nails. It Avas 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 simi at Aldridge's Reposi- 
 tory some time in October. 
 
 At the trial no Veterinary Surgeons were called to give 
 any information as to the nature of the injmy or of the 
 parts in]\u-ed. And the allegation that the patent shoe 
 was one likely to produce lameness by its apj)lioation, was 
 withdi-awn 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 Avas not liable because he had brought to the perform- 
 ance of that duty competent skill and reasonable care, and 
 that the plaintiff knowingly 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 fi'om other causes. 
 Rule as to In summing up Chief Baron Pollock said to the Jury : 
 
 Tamers. u rpj^^ ^^^^y -j^^^Iq gf j^r^^ fj^at I feel it necessary to lay 
 
 doAvn upon the subject in this case is, that if this operation 
 has been performed unskilfidly and improperly, no doubt 
 
VETERINARY SURGEON AND FARRIER. 231 
 
 the defendant is liable to the plaintiff for any mischief 
 that may have resulted from such unskilfulness ; but he is 
 liable only to the extent to which mischief has been pro- 
 duced. The Ride I take to be this, that a person employed 
 for any purpose must bring to the subject-matter a reason- 
 able skill and fitness, and he must exercise that reasonable 
 skill and fitness with due and proj)er care. If he be defi- 
 cient in the requisite skilfulness, and in consequence of 
 that the operation is performed 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 which results 
 from that." 
 
 " I need hardly tell you, that an operation of this sort No Insur- 
 cannot be considered in the light of an Insurance. If you ^^nce against 
 apply to a Surgeon or a medical man to cure you of any ^^■I'^^J"- 
 disorder, he is liable if there is any want of skill or proper 
 care ; and I observed that one of you asked whether 
 pricking a Horse was a frequent accident. I think the 
 answer to that immediate question was, that it was not, 
 at all events, very unfrequent ; still it may hai^pen with- 
 out 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 responsible 
 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 without 
 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 operation of shoeing." 
 
 " Wherever that is the case, you would naturally ex- Peculiar dif- 
 pect some information given that there were those defects Acuities 
 and difficulties, so that the Farrier might be made ac- Mentioned 
 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 operation of shoeing these Horses. 
 I own it appears to me that I think it is impossible to 
 doubt as to the fact that there was an actual pricking." 
 
 " With respect to the man's skill, he may have done Coming at an 
 it on this occasion badly, they coming to him at night to unseasonable 
 insist upon the job being done at an iiTCgular hour; °^^* 
 that was partly suggested at one time. I must say it 
 appears to me as a question of law, that that it is no ex- 
 cuse. If you go to any place, and call in a Surgeon or 
 a Farrier, or any person to perform an operation, if the 
 
232 
 
 INNKEEPERS, VETERINARY SURGEONS, ETC. 
 
 Farrymg, &c. 
 in the street. 
 
 Hoi'se stand- 
 ing to be shod 
 not dis- 
 trainable. 
 
 Horse may be 
 detained for 
 the ijrice of 
 his shoeing. 
 
 Such Lien is 
 favoured by 
 law. 
 
 Extends only 
 
 time is inconvenient, and if the light be not sufficient, 
 and if the occasion he not suitable, he is bound to say, 
 ' I will not do it.' If he does it, he is answerable, unless 
 indeed he distinctly and explicitly says, ' I do it at your 
 urgent request, but / in7l not be responsible for the con- 
 sequences.' 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 responsible, 
 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 verdict 
 was against the evidence. 
 
 Under the Police of Towns Act every person who, in any 
 street, to the obstruction, annoyance or danger of the 
 residents, shoes, bleeds or farries any Horse or animal 
 (except in cases of accident), or cleans, dresses, exercises, 
 trains, or breaks, or turns loose any Horse or animal, is 
 liable to a penalty not exceeding 40s. (t). 
 
 A Horse standing at a Farrier's to be shod is exempt 
 from Distress on tlie ground of public utility (ii). 
 
 As a party has a right to go to a Farrier's shop by the 
 tacit permission of the law {x), an action of Trover does 
 not lie against a Farrier for refusing to deliver a Horse 
 which he has shod, unless the money due for the shoeing 
 has been paid or tendered ( //) . 
 
 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 Horse- 
 breaker by whose skill a Horse is rendered manageable, 
 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 coiisfriied liberally 
 in such cases (~). 
 
 But the Horse can only be kept for work done at that 
 
 {t) 10 & 11 Vict. c. 89, s. 28. 
 
 (u) Francis v. JTyatt, 3 Burr. 
 1502, and the authorities there 
 cited. 
 
 (.r) Lane v. Cotton, 1 Salk. IS. 
 
 {y) Bac. Abr. Trover (E.) 816. 
 
 (r) Scarfc v. 2Iorr/an, 4 M. & W. 
 280 ; Chase v. Westmore, o M. & S. 
 189. 
 
VETERINARY SURGEON AND FARRIER. 233 
 
 particular time, for the lien does not extend to any pre- to each parti- 
 vious account ; and when this point was decided by the ^"^^"^ *^"^^' 
 Court of Uueen'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"(«). 
 
 In the case of Scarfe v. Morgan {h) a difficulty arose Liability to 
 out of the circumstance that a living chattel might be- feed a Horse 
 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 ; and to 
 the case of a lien upon Corn, which requires some labour 
 and expense in the j^roper custody of it (c) . 
 
 HORSEBREAKER, TRAINER, ETC. 
 
 A Horsehreahcr is liable for any damage which through Horsebreaker 
 his negligence may happen to the Horse he is breaking, liable for 
 Thus an action on the Case was brought, and damages thrHOTs*^ 
 recovered against the defendant, to whose charge a Mare 
 had been committed, "to be taught to pace " {d). 
 
 The Horsehrealier, by whose skill the Horse is rendered Horse- 
 manageable, has a lien upon him in respect of his charges; tireaker's lien, 
 and such lien being consistent with the principles of 
 natural equity, is favoured by the law, which in such case 
 is construed liberally {e) . 
 
 It was for a long time doubtful whether in any case a Trainer's lien. 
 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 spe- 
 cified Race{f). In Be van v. Waters {g) he was held to 
 have a lien ; and the question also arose in Jacobs v. 
 
 (a) Rushforth v. Kadficld, 7 East, Q. B. 220 (Ex. Ch.). 
 229. (,/) Lib. Plac. 25. 
 
 (i) Scarfe v. Morgan, 4 M. & TV. (V) 8carfe v. Morgan, 4 11. & W 
 
 280. 276. 
 
 {c) See ante, p. 228 ; 12 & 13 Vict. (/) See Jackson v. Cummins, post. 
 
 c. 92, and 17 & 18 Vict. c. 60, s. 1 ; {g) Sevan v. Waters, 3 C. & P. 
 
 also ante, p. 226, British Empire 520. See also Sanderson v. Bell, 2 
 
 Shipping Co. v. Somes, 28 L. J., C. k M. 304. 
 
234 INNKEEPERS, VETERINARY SURGEONS, ETC. 
 
 Latour (h), 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 re-delivery 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-stahle heeper, if by the contract he 
 is to allow the owner to run the Horse" {i). Mr. Baron 
 Parke, shortly afterwards in another case, said, "As to 
 the case of the training Grroom it is not necessary to say 
 anything, as it has not been formally decided ; for in 
 Jacobs v. Latour {h) the point was left undetermined. 
 It is true there is a Nisi prim decision of Best, 0. J., in 
 Beian v. Waters (k), 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 dm-ing 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 of Bevan v. Waters {k) was wrongly 
 decided ; I only doubt if it extends to the case of a Race- 
 horse, unless perhaps he was delivered to the groom to be 
 trained for the pm"pose of running a specified race, when of 
 course these observations would not apply " (/). 
 
 It 'has however been decided in a later case, that the 
 labour and skill employed on a Racehorse b}^ a Trainer 
 are a good foundation for a lien {m). 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 [m) . 
 Stallion- ^]jq owner of a Stallion is entitled to a specific lien on 
 
 Uen. ^^ ^^ ^ the Mare in respect of his charge for covering her. Thus 
 
 [h) Jacobs V. Latour, 2 M. & P. [l) Jackson v. Ctimmins, 5 M. & 
 
 205. W. 350. 
 
 (i) Scarfe v. Morgan, 4 M. & AY. [m) Forth v. Simpson, 13 Q. B. 
 
 276. G80; S. C. 18 L. J., Q. B. 266; 
 
 \k) Bevan v. Waters, 3 C. & P. Lee v. Lricin, 4 Ir. Jur. 372. 
 520. 
 
HORSEBBEAKER, TRAINER, ETC. 235 
 
 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 accordingly upon a 
 Sunday. However, the charge for covering not 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 occasiofi, 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 3Iare for the general balance was not a waiver 
 of his lien for the charge on the particular occasion, and 
 did not dispense ^\ith the necessity of a tender of that 
 sum(;?). 
 
 It was also decided that such a contract was not void For work 
 within 29 Car. 2, c. 7, s. 1, on the ground of its having ^one on a 
 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 a 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 " («). 
 
 («) Scarfe v. Morgan, 4 M. & W. 270. 
 
( 236 
 
 CHAPTER XI. 
 
 LIVERY-STABLE KEEPERS, AGISTERS, AND THE HIRING AND 
 BORROWING HORSES. 
 
 LivEET- Stable Keeper. 
 
 Has no rrivikf/e 23 / 
 
 Liable icJtcre the Horse is lost . . id. 
 Horse at Livery distrainable . . id. 
 But not ichere he is merely to be 
 
 cleaned and fed id. 
 
 Distinction taken in Parsons r. 
 
 Giugell 238 
 
 Livery -Stable Keeper has no Lien 
 
 for Keep id. 
 
 May have a Lien by Agree- 
 ment id. 
 
 Horse removed to defeat such 
 
 Lien id. 
 
 Livery- Stable Keeper has no Lien 
 
 for Money expended on Horse . id. 
 What cannot be set off in an Ac- 
 tion for Keep 239 
 
 He must take reasonable Care of 
 
 the LLorse id. 
 
 An Action for not taking due 
 care of a Horse founded on 
 
 Contract 240 
 
 Agister. 
 
 His Possession 240 
 
 Does not insure a Horse's Safoiy id. 
 He is answerable for Xegligcncc. id. 
 
 If he leaves his Gates open 241 
 
 Fences out of Order, ^-f id. 
 
 Injury by another Horse id. 
 
 The Horse's Condition 242 
 
 Eatage let for a certain Time .. id. 
 
 Agister has no Lien id. 
 
 May have a Lien by Agreement. 243 
 Horses and Cattle being agisted 
 
 are distrainable 244 
 
 But not when taken in to rest 
 
 for a Night id. 
 
 Decision of the Irish Court of 
 
 Queen's Bench id. 
 
 Distinction ivliere Cattle enter 
 by breaking Fences id. 
 
 Hieing Hoeses. 
 
 Letting for Hire 244 
 
 Warranty of Fitness for a 
 Journey id. 
 
 Ilymaii r. Nye 245 
 
 IVhcre a ^^ff)Yifif/«r Horse is 
 
 selected 247 
 
 But a Horse should not be used 
 for a purpose other than that 
 'for u-h ich it ivas h ired id. 
 
 What Care is required id. 
 
 Infancy good Defence to an Ac- 
 tion on Contract id. 
 
 Sccns, ichere Action founded in 
 Tort 248 
 
 Where Hirer is ansurrable at all 
 Events id. 
 
 Unnecessary Deviation id. 
 
 Where Negligence must be p)roved id. 
 
 Where the Horse falls Lame id. 
 
 Where the Horse is exhausted . . id. 
 
 Where the Horse refuses its Feed 249 
 
 Where the Horse is returned in 
 icorse Condition id. 
 
 Expenses of curing Sick Horse . . id. 
 
 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 250 
 
 Wlierc the Horse is stolen by the 
 Hirer ib. 
 
 Must have been originally taken 
 irith a Felonious Intention at 
 Common Law 251 
 
 Noiv Bailee indictable for Lar- 
 ceny under 24 ^- 25 Vict. c. 96, 
 s. 3 id. 
 
 Horse hired by a Servant id. 
 
 Owner's Liability in case of 
 Accident id. 
 
 Horses driven by the Owner's 
 Servants 252 
 
 Horses driven by the Owner^s 
 
 Servants to a certain Flace . id. 
 Travelling post id. 
 
 Horses driven cdjout Town by the 
 Owner's Servants id. 
 
 Laug-her v. Pointer id. 
 
LIVERY-STABLE KEEPER. 
 
 237 
 
 Owner held liable in Quarman 
 
 V. Bm-nett 253 
 
 Wearbig the Hirer'' s Livery . . id. 
 A Job-Master's Affreement . . . , 254 
 Where the Hirer is liable for 
 
 Damage id. 
 
 Hirer liable through his own 
 
 Conduct id. 
 
 Hirer liable ivh ere he might have 
 
 controlled his Servant id. 
 
 M'Laughlin v. Pryor 255 
 
 Opinion of the Court of Com- 
 mon Pleas id. 
 
 The General Rule 256 
 
 Where the Hirer ivould not be 
 liable id. 
 
 Hirer sitting outside liable . . id. 
 The Jurg must decide whether 
 
 the Servant is acting for the 
 
 Hirer or Oicner 257 
 
 A Hirer's Agreement id. 
 
 BoKEOwiNG Horses. 
 
 Lending for Use 258 
 
 Duties of Borrower and Lender . id. 
 
 Lender of a Horse id. 
 
 Must not conceal Defects id. 
 
 What Care is requited , . 258 
 
 As much as the Borrower is 
 
 capable of bestowing 259 
 
 Showing a Horse for Sale id. 
 
 A gratuitous Bailee 260 
 
 Negligence of a Bailee id. 
 
 Rule as to Negligence of gra- 
 tuitous Bailee id. 
 
 Use stricthj personal id. 
 
 Cannot be used by a Servant . . 261 
 Must be used according to the 
 
 Lending id. 
 
 Or else the Borrower is an- 
 swerable id. 
 
 Where no Time is fixed for 
 
 Return id. 
 
 Redelivery on Request id. 
 
 Borrower bound to feed the 
 
 Horse id. 
 
 Where the Horse is exhausted . . 262 
 Where the Horse is killed .... id. 
 Where the Horse dies from 
 
 Disease id. 
 
 Where Borrower is answerable 
 
 for Damage id. 
 
 Bailment ended by Misuser .... id. 
 
 LIVERY-STABLE KEEPER. 
 
 A Livery-stahle Keeper, who is not an Innkeeper, has no 
 privilege himself, and none can be claimed under him ; he 
 must therefore rest on his own agreement {a). But he is 
 not liable to the inconveniences to which Innkeepers are 
 subject, such as taking out Licences, &c. ; and he is not 
 bound to have Soldiers quartered upon him {b). 
 
 But if a Horse in his keeping be lost or stolen, he is 
 answerable for it {c). 
 
 A person should satisfy himself of the credit and solvency 
 of the LiDery-stahle Keeper, to whom he proposes to entrust 
 his Horse ; because Horses and Carriages standing at 
 Livery are diatrainahle for rent {e). 
 
 But the case of a Horse sent to a Livery-stable merely 
 to be cleaned and fed, is very different from one, where he 
 
 («) Yelv. 66 ; Chapman v. Allen, 
 Cro. Car. 271 ; Yorlcc\. Greenaugh, 
 2 Ld. Raym. 687; S. C. 1 Salk. 
 388 ; Gelly v. Clerk, Cro. Jac. 188. 
 la some of tlie States in America 
 statutes are in force giving the 
 livery-stable keeper a lien upon 
 animals for their keei). See Hanover 
 on Horses; Colquit v. Jiirkman, 47 
 
 Ga. 555 (1873). 
 
 {b) Rarkhurst v. Foster, 1 Salk. 
 387 ; Barnard v. How, 1 C. & P. 
 366. 
 
 (c) Yorke v. Greenaugh, 2 Ld. 
 Raym. 866 ; Francis v. Wyatt, 3 
 Burr. 1498 ; S. C. 1 Bla. Rep. 485; 
 Parsons v. Gingcll, 4 C. B. 558 ; 
 S. C. 16 L. J., C. P. 227. 
 
 Has no pri- 
 vilege. 
 
 Liable where 
 the Horse is 
 lost. 
 
 Horse at 
 Livery dis- 
 trainable. 
 
 But not 
 where he is 
 merely to be 
 cleaned and 
 fed. 
 
238 
 
 LTYERY-STABLE KEEPERS, AGISTERS, ETC. 
 
 Distinction 
 taken in 
 Parsons v. 
 Gingell. 
 
 Livery -stable 
 Keeper has 
 no lien for 
 keep. 
 
 May have a 
 lien by agree- 
 ment. 
 
 Horse re- 
 moved to 
 defeat such 
 lien. 
 
 Livery -stable 
 Keeper has 
 no lien for 
 money ex- 
 pended on 
 Horse. 
 
 is sent to remain during the owner's pleasure, the feeding 
 and grooming being only incident to the principal 
 object {(l). 
 
 In the case of Parsons v. Gingell (e), the following 
 distinction was taken by Chief Justice Wilde : "If the 
 goods are sent to the premises for the purpose of being 
 dealt with in the way of the party's trade, and are to re- 
 main 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 consideration." 
 
 A Liverj/stahle Keeper cannot detain a Horse for his 
 keep as an Innkeeper may, because he is not bound to take 
 it, much less can he detain, or be bound to take a Carriage 
 without Horses (/). 
 
 But he may have a lien by special agreement, as where 
 a Mare was placed with a Lirery-stahle Keeper, who ad- 
 vanced 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 Livery- 
 stable Keeper was held to have a lien on her for the amount 
 due (r/)._ 
 
 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 may retake it 
 without force, for the lien is not put an end to by his 
 having parted with the possession under such circum- 
 stances [h) . 
 
 A Livery-stable Iveeper has no lien on a Horse for money 
 expended by him on the Horse at the request of the owner. 
 Thus in a case in which a Livery-stable iLeej^er had em- 
 ployed a Yeterinary Surgeon at the request of the owner 
 to blister a Horse standing at Livery with him for splints, 
 and had actually paid the bill, it was held that he had no 
 right to detain the Horse for the amount of this bill, 
 inasmuch as the Veterinary Surgeon had no lien for his 
 bill, nor the Livery-stable Keeper for his keep ; and 
 inasmuch as there is no rule of law, which gives a Livery- 
 
 [d) See per Wilde, C. J., Parso/is 
 V. Ginffell, 4 C. B. 558. 
 
 (e) Farso/is v. Gingell, 4 C. B. 
 558 
 
 (/) Barnard v. Soiv, 1 C. & P. 
 366 ; Yorke v. Greenaugh, 2 Ld. 
 Raym. 867; Francis v. Wyatt, 3 
 
 BiuT. 1498 ; ,V. C. 1 Bla. Eep. 485; 
 Parsons v. Gingell, 4 C B. 558 ; 
 -S'. C. 16 L. J., C. P. 227. 
 
 [g) Bonatty v. Crowder, 1 1 Moore, 
 479. 
 
 ill) Wallace v. Woodqate, R. & M. 
 193 ; .S'. C. 1 C. & P. 575. 
 
LIVERY-STABLE KEEPER. 239 
 
 stable Keeper a lien for money expended upon a Horse 
 standing at livery at the request of the owner {i) . 
 
 Where a Lkery-stahle Keeper brings an action for a What cannot 
 Horse's keep, money received by him as the price of the ^"^ ^®* ?^ V^ 
 
 TT 1 J. £L IX 1 i-i ' • £ ail action for 
 
 Horse, but aiterwards returned on the rescission oi a con- ^ggp^ 
 tract of sale, cannot be set off against him by the defendant. 
 Thus, the plaintiff, a Lii-ery-stahle Keeper, sold for the 
 defendant a Horse and received the price. The purchaser 
 afterwards rescinded the contract on the ground of fraud, 
 and v/as 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 ig- 
 norant of the fraud {k) . 
 
 A Livery-stable Keeper who undertakes for reward to He must talie 
 receive a Horse or Carriage and lodge it in a stable or reasonable 
 coach-house, is bound to take reasonable care (/). The Horse, 
 obligation to take reasonable care of the thing entrusted to 
 a bailee of this class, involves in it an obligation to take 
 reasonable care that any building in which it is deposited 
 is in a proper state, so that the thing deposited may be 
 reasonably safe in it ; but no Warranty or obligation is to 
 be implied by law on his part that the building is absolutely 
 safe. The fact that the building has been erected by the 
 Livery-stable Keeper on his own ground makes no differ- 
 ence to his liability {m). 
 
 In Searle v. Lavericli {ii) the plaintiff brought his Horses 
 and two Carriages to the defendant, a Livery-stable 
 Keeper ; the Carriages were placed under a shed on his 
 premises, a charge being made by him in resj)ect of each. 
 The shed had just been erected, the upper part still being 
 in the hands of workmen. The defendant had employed 
 a builder to erect the shed for him as an independent 
 contractor, not as his servant, and he was a competent and 
 proper person to employ. The shed was blown down by a 
 high wind, the defendant being ignorant of any defect in 
 it, and the Carriages were injured, upon which the plaintiff 
 brought an action against him. At the trial, the above 
 facts having been admitted, the Judge rejected evidence 
 to prove that the fall of the shed was owing to its being 
 
 (i) Orchard v. Eackstraw, 9 C. B. Q. B. 122 ; 43 L. J., Q. B. 43 ; 
 
 698. 30 L. T., N. S. 89. 
 
 {k) Murray v. Mann, 2 Ex. 538. {m) Ibid. 
 
 (/) Searle v. Laverick, L. E,., 9 {») Ibid. 
 
240 
 
 LIVERY-STABLE KEEPERS, AGISTERS, ETC. 
 
 An action for 
 not taking 
 due care of a 
 Horse 
 founded on 
 contract. 
 
 His posses- 
 sion. 
 
 Does not in- 
 sure a 
 Horse' s 
 safety. 
 
 He is answer- 
 able for 
 Neg-liarence. 
 
 imskillfully built tlirougli the negligence of the contractor 
 and his men ; and he nonsuited the plaintiff, ruling that 
 the defendant's liability was that of an ordinary bailee for 
 hire, and that he was only bound to take ordinary care in the 
 keeping of the Carriages, and that if he had exercised in 
 the employment of the builder such care as an ordinary 
 careful man would use, he was not liable for damage 
 caused by the carelessness of the builder, of which the 
 defendant had no notice. And this nonsuit and ruling 
 were held right. 
 
 An action against a Licenj-stahle Keeper for not taking 
 due and proper care of a Horse of the plaintiff's, whereby 
 damage resulted, is founded on contract, and not in tort, 
 and thus differs from an action against a Farrier, who 
 shoes a Horse negligently, and so commits a breach of a 
 common law duty. Therefore, where less than 20/. is 
 recovered against a Livery-stable Keeper, the plaintiff is 
 deprived of costs by the County Courts Act (30 & 31 Vict. 
 c. 142), s. 5, unless -the Judge certifies that there was 
 sufficient reason for bringing the action in the High 
 Court (o) . 
 
 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 {p). He may also 
 maintain an action of trover for Horses or other Cattle 
 during their agistment (q) . If a Horse so left be sold by 
 him, it is no Larceny (r) ; and if it be stolen, and the thief 
 prosecuted, the property may be laid as his [s). 
 
 A person who takes in Horses to agist does not, like an 
 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 (/). 
 
 A person who takes Horses to agist is answerable, 
 either if a particular negligence be proved, thi'ough which 
 the Horse was lost, or if, in ignorance of the special cir- 
 
 (o) Lcggc v. Tucker, 1 H. & N. 
 500, decided iinder 13 & 14 Vict, 
 c. 61, s. 11. 
 
 {p) See 4 Inst. 293; 2 Eol. Abr. 
 551 ; WoodwarcV s case, 2 East's P. 
 C. 653. 
 
 {q) Clark v. Roe, 4 Ir. C. L. Rep. 7. 
 
 (/■) Tux V. ^mlth, 1 Mood. C. C. 
 473. 
 
 (.v) WoodwariV s case, 2 East's P. 
 C. 653. 
 
 (0 Broadwater V. Blot, Holt, 547. 
 See Corbctt v. Paekingto», 6 B. & C. 
 268 ; Lib. Plac. 14. 
 
AGISTER. 241 
 
 cumstances of the case, tliere be gross general negligence, 
 to which the loss may reasonably be ascribed («) . 
 
 For instance, if cattle be agisted, and the Agister leaves If ho leaves 
 the gates of his field open, he uses less than ordinary dili- ■'"^ Gates 
 gence ; and if the Cattle stray out, and are stolen, he must °^^^' 
 make good the loss (r). 
 
 So, too, if the Fences were in an improiDcr state when the Fences out of 
 Horse was taken in to agist, or if the party taking it in, order, &c. 
 did not apply that care and diligence to its custody, even 
 though it be taken in gratuitously (.r), which the owner 
 had a right to expect (.r) ; as where, from not properly 
 Fencing a Pond, the Horse stuck in the mud and died, the 
 Agister is answerable for such negligence (y) . But where 
 a Horse fell through some rotten boards into a cesspool 
 and was injured, it was doubted by Willes, J., whether the 
 defendant was liable (z). 
 
 In the ease of Gaunt v. Smith {a), tried before Pollock, Injury by 
 C. B., which was an action brought against an Agister for ?J^o*^^er 
 negligence in the care of the plaintilf's Pony, which was °^^^' °' 
 kicked and damaged during its agistment by a Horse, 
 whose shoes had not been taken oS, there being no evi- 
 dence that the defendant knew the Horse to be vicious, the 
 plaintiff was nonsuited. But this case has recently been 
 overruled by the case of Smith v. Cook {b), the facts of 
 which were as follows : — An Agister of cattle placed a 
 Horse in a field with a number of heifers, knowing that a 
 bull, kept on adjoining land, had several times been found 
 in the adjoining field, and there was no sufficient fence to 
 keep it out. He did not, however, know that the bull was 
 of a mischievous disposition. The IPorse was gored by tlie 
 bull and killed; and in an action by the owner of the 
 Horse against the Agister for breach of contract to take 
 reasonable care, the jury found for the plaintiff. It was 
 held that the fact that the Agister had no knowledge of 
 the mischievous disposition of the particular bull was no 
 
 (tf) See note {i), ante. Horse when grazing in a field, by 
 
 [v) Broadwater v. Blot, Holt, falling down a shaft, which was 
 
 5-17. Also per Byles, J., Marj'dl improperly fenced by the defend- 
 
 V. South H'ales Bailw. Co., 8 C. B., ants, who were in occupation of 
 
 N. S. 525. the minerals under the Held, was 
 
 {x) Booth V. JTihon, 1 B. & Aid. actionable. 
 59. (r) Slacci/ v. Livesay, C. P., N. P., 
 
 {y) Poveyy.Purnell, before Chief Nov. 14, 1856. 
 Justice Jervis, C. P.,N. P., Dec. 6, {a) Gaunt y. Smith, N. P., Ex., 
 
 1853. And see Groucott v. WU- Dec. 11, 1856. 
 
 lUuns, 32 L. J., Q. B. 237, in which {}>) L. R., 1 Q. B. D. 79 ; 45 L. 
 
 it was held that injury done to a J., Q. B. 122 ; 33 L. T., N. S. 722. 
 
 U. R 
 
242 LIVERY-STABLE KEEPERS, AGISTERS, ETC. 
 
 ground for disturbing the verdict, as such knowledge was 
 not essential to his liability under his contract as an Agister 
 to take reasonable care of the horse. 
 The Horse's It is only just, that if A. send his horse to B. to be kept 
 con ion. £^j, j^^j^ ^|. gj.jjgg f^y, r^ certain time, B. should be answer- 
 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 off 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. 
 Eatage let for It will be seen by a modern case that on a demise of 
 time*^^^ land or the vesture of land (as the eafage of a field) for a 
 
 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 eafage of twenty-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 throw up the land, but continued liable for the whole 
 rent. Mr. Baron Parke saying, in the course of the argu- 
 ment, " 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 qncestio ; if not, the 
 plaintiff has jDerformed his engagement, and the defendant 
 has had all he bargained for, namely, a demise of the 
 eatage for six months, and must pay for all" (<?). 
 Agister has If a man take in Horses, kine or other cattle to de- 
 
 no lien. pastui'e, 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 effect {d). And the law 
 on this subject was laid down and explained in the case of 
 Jctclson V. Cummins (e), in which Mr. Baron Parke said, 
 " I think that by the common law no lien exists in the 
 case of Agistment. The general Rule as laid down by 
 
 (f) Sutton V. Temple, 12 IL & W. 273 ; Ilkhayds v. Sijmons, 8 Q. B. 
 60. 93. 
 
 (d) Chapman v. Alien, Cro. Car. (f) Jarlson v. Ciiminimt, 5 M. & 
 
 W. 312. 
 
AGISTER. 243 
 
 Best, C. J., in Bcvan v. Waters (/), and by this Court in 
 Scarf e v. Morgan {g), is, that by the general law, in the 
 absence of any special agreement, whenever a party has 
 expended labour and skill in the improvement of a chattel 
 bailed to him, he has a lien upon it. Now, the case of 
 Agiafment does not fall within that principle, inasmuch as 
 the Agister does not confer any additional value on the 
 article either by 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 Scarfe v. Morgan (g) ; he 
 simply takes in the animal to feed it. In addition to 
 which we have the express authority of Chapman v. 
 Allen (h), 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 Y. Ethridge{i). 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 ; which 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 (/.•). Thus the plaintiff having a Cow at lienbyagree- 
 grass in defendant's field, and being indebted for the 
 Agistment, agreed with him that the Cow should be 
 security ; that he would not remove her till the defendant 
 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 -svithout having paid the 
 
 (/) Sevan v. Waters, 3 C. & P. 278. 
 
 520 ; S. C. M. & M. 236. (i) Judson v. Ethrichje, 1 Cr. & M. 
 
 ici) Scarfe v. Morgan, 4 M. & W. 743. 
 
 283 ; S. C. 1 Horn. & Hurl. 292. [k) Richards v. Si/mons, 8 Q. B. 
 
 {h) Chapman v. Alien, Cro. Car. 90. 
 
 ii2 
 
244 
 
 LIVERY-STABLE KEEPERS, AGISTERS, ETC. 
 
 Horses and 
 Cattle being 
 agisted are 
 distrainable. 
 
 Bat not when 
 taken in to 
 rest for a 
 niglit. 
 
 Decision of 
 the Irish 
 Court of 
 Queen's 
 Bench. 
 
 Distinction 
 ■where Cattle 
 enter by 
 breaking 
 fences. 
 
 Letting for 
 hire. 
 
 "Warranty of 
 fitness for 
 journey. 
 
 debt, and tlie 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 {Ic). 
 
 Horses and Cattle put into a close to be agisted are 
 liable to be taken in distress by the landlord, the general 
 Eule being that all things on the land are distrainable for 
 rent in arrear (/). 
 
 Horses or cattle driven to a distant Market, and put into 
 land to rest for one night, cannot be distrained for rent by 
 the owner of the land, such protection being absolutely 
 necessary for the public interests {m). 
 
 Thus it was held in the Irish Court of Queen's Bench, 
 that certain Cattle belonging to a drover on their way to 
 a Market for the purpose of being sold there, and put to 
 graze for one night, immediately before the morning on 
 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 {n). 
 
 The settled distinction seems to be, that where a 
 stranger's Cattle escape into another's land by breaking 
 the fences, where there is no defect in them, or if the 
 tenant of the land where the distress is taken is not bound 
 to repair the fences, though there is a defect in them, the 
 Cattle may be distrained for rent whether they are levant 
 ct couchant or not. If, however, the Cattle escape through 
 the defect of fences which the tenant of the land is bound 
 to rejDair, they cannot be distrained by the landlord for 
 rent, though they have been levant et couehant, unless the 
 owner of the Cattle, after Notice that they were on the 
 land, neglects or refuses to drive them away (o). 
 
 HIRING HORSES. 
 
 Letting for Eire is a bailment of a thing to be used by 
 the Hirer, for a compensation in money {p). 
 
 If a Horse or Carriage be let out for Hire for the 
 purpose of performing a particular journey, the party 
 letting warrants that the Horse or Carriage, as it may be, 
 is fit and proper and competent for such journey [q). 
 
 (/>•) Richards y. Si/mous, 8 Q. B. 90. 
 
 (0 Jones V. FoiccU, 5 B. & C. 650 ; 
 S. 0. 8 D. & R. 416. 
 
 (;«) Tate v. G!eed, C. B., H. T. 
 24 Geo. 3; 2 Christ. Bla. Com. 
 p. 8, n. 4 ; and see Foole v. Longue- 
 vill, 3 Wms. Saund. 290, n. (q). 
 
 (>i) Kuc/ent V. Kinran, 1 Jebb & 
 
 Symes, 97 (Q. B. Ir.). 
 
 (o) Foole V. LomjuevWl, 3 Wms. 
 Saund. 290 ; and see 2 Lutw. 1580 ; 
 Gilb. Dist. 34, 2nd ed. See also 
 Woohych on Fences, 309, 310. 
 
 [p] Jones on Bailments, 118. 
 
 [q) Per Pollock, C. B., Chew v. 
 Joms, 10 L. T. 231. 
 
HIKING HORSES. 245 
 
 The fact tliat the defendant has taken all reasonable 
 and proper care to provide a fit and proper Carriage is not 
 sufficient, and this was so held in the recent case of 
 Hyman v, Ni/e{)'), in which the point was very fully- 
 discussed. In that case the plaintiff hired from the de- 
 fendant, a jobmaster, for a specified journey a Carriage, 
 a pair of Horses, and a driver. During the journey a 
 bolt in the underpart of the Carriage broke, the splinter bar 
 became displaced, the Horses started off, the Carriage was 
 upset, and the plaintiff injured. In an action against the 
 defendant for negligence, the jury were directed that, if in 
 their opinion the defendant took all reasonable care to 
 provide a fit and proper Carriage, their verdict ought to be 
 for him. The Jury found a verdict for the defendant, and 
 in particular that the Carriage was reasonably fit for the 
 purpose for which it was hired, and that the defect in the 
 bolt could not have been discovered by the defendant by 
 ordinary care and attention. A rule having been ob- lT>jmanv.Xt/e. 
 tained, calling upon the defendant to show cause why 
 there should not be a new trial on the ground of mis- 
 direction, and that the verdict was against the weight of 
 the evidence, Lindley, J., in the course of his judgment 
 said, "A careful study of the authorities leads me to the 
 conclusion that the learned judge at the trial put the duty 
 of the defendant too low. A person who lets out Car- 
 riages is not, in my opinion, responsible for all defects 
 discoverable or not ; he is not an insurer against all defects; 
 nor is he bound to take more care than coach proprietors, 
 or railway companies who provide Carriages for the public 
 to travel in ; but, in my opinion, he is bound to take as 
 much care as they ; and although not an insurer against 
 all defects, he is an insurer against all defects which 
 care and skill can guard against. His duty appears to 
 me to be to supply a Carriage as fit for the purpose for 
 which it is hired as care and skill can render it ; and if 
 whilst the Carriage is being properly used for such purpose 
 it breaks down, it becomes incumbent on the person who 
 has let it out to show that the break down was in the proper 
 sense of the word an accident, and not preventible by 
 any care or skill. If he can prove this, as the defendant 
 did in Christie v. Griggs [s), and as the railway company 
 did in Eeadhead v. Midland Rail. Co. (/), he will not be 
 
 ()•) L. R., 6 Q. B. D. 685. (0 L. E,., 2 Q. B. 412 ; 36 L. J., 
 
 (•s) 2 Camp. 80. Q. B. 181. 
 
246 LIVERY-STABLE KEEPERS, AGISTERS, ETC. 
 
 liable ; but no proof short of tbis will exonerate bim. 
 Nor does it appear to me to be at all unreasonable to exact 
 such vigilance from a person wbo makes it bis business to 
 let out Carriages for bire. As between bim and tbe Hirer 
 tbe risk of defects in tbe Carriage, so far as skill and care 
 can avoid tbem, ougbt to be tbrown on tbe owner of tbe 
 Carriage. Tbe birer trusts bim to supply a fit and proper 
 Carriage ; tbe lender bas it in bis power not only to see 
 tbat it is in a proper state, and to keep it so, and tbus 
 protect bimself from risk, but also to charge his customers 
 enough to cover bis expenses. 
 
 " Such being, in my opinion, the law applicable to the 
 case, it follows tbat the direction given to the Jury did not 
 go far enough, and tbat it was not sufficient, in order to 
 exonerate the defendant from liability, for bim to prove 
 that be did not know of any defect in tbe bolt, bad no 
 reason to suppose it was weak, and could not see tbat it 
 was by an ordinary inspection of the carriage. It further 
 follows tbat, in my opinion, the evidence was not such as 
 to warrant the finding that the carriage was in a fit and 
 proper state when it left tbe defendant's yard. 
 
 " In many cases bearing on this subject, tbe expression 
 ' reasonably fit and proper ' is used. Tbis is a little 
 ambiguous, and requires explanation. In a case like the 
 present, a Carriage to be reasonably fit and proper must be 
 as fit and proper as care and skill can make it for use in a 
 reasonable and proper manner, /. e., as fit and proper as 
 care and skill can make it to carry a reasonable number of 
 people, conducting themselves in a reasonable manner, and 
 going at a reasonable pace on the journey for which tbe 
 Carriage was hired, or (if no journey was specified) along 
 roads or over grounds reasonably fit for Carriages. A 
 Carriage not fit and proper in this sense would not be 
 reasonably fit and proper, and Tice vend. The expression 
 ' reasonably fit ' denotes something short of absolutely fit ; 
 but in a case of this description the difference between the 
 two expressions is not great. 
 
 "It was objected on the part of tbe defendant that the 
 plaintiff had, in bis statement of claim, based bis case -on 
 negligence on the part of the defendant, and not on any 
 breach of warranty express or implied, and consequently 
 that the plaintiff' could not recover in this action, at least 
 without amending. But the absence of such care as a 
 person is by law bound to take is negligence ; and whether 
 the plaintiff' sues tbe defendant in tort for negligence in 
 
HIRING HORSES. 247 
 
 not having supplied such a fit and proper Carriage as he 
 ought to have supplied, or whether the plaintiff sues him 
 in contract for the hreach of the implied warranty that the 
 Carriage was as fit and proper as it ought to have been, 
 appears to me wholly immaterial. Upon this point I 
 adopt the opinion of Baron Martin in Francis v. Cocli- 
 re/l{i(), which is based upon and warranted by Bronii v. 
 Boorman (.r). 
 
 " The plaintiff's pleadings would have been free from all 
 objection if he had stated in his statement of claim that 
 he hired the Carriage of the defendant, and not merely 
 that the plaintiff was lawfully in the Carriage. But the 
 defendant knew under what circumstances the plaintiff 
 was lawfully in it, and there was no surprise or miscar- 
 riage of justice occasioned by the omission of the statement 
 of the fact of hiiing. It appears to me, therefore, that the 
 plaintiff ought not to be precluded from recovering in this 
 action as the pleadings stand, if the facts come out in his 
 favour. 
 
 "For the above reasons I am of opinion that there 
 should be a new trial, and that the costs of the first trial, 
 and of this rule, should abide the event." 
 
 And even if a particular Horse has been selected out of Where a par- 
 the owner's stables, it makes no difference, as it must be ticular Horse 
 supposed that all are fit for their work {y). 
 
 But if a Horse is hired for one purpose and is used But a 
 for another, and the Horse when thus used is injured, the lio^'^e should 
 Hirer is liable for the damage thus occasioned. Accord- foj, ^ purpose 
 ingly where a Horse was hired as a lady's riding Horse, other than 
 the Hirer was held to be liable for damage occasioned when that for which 
 
 ,.,.., , s ° it was hired, 
 
 trymg mm m harness (;:). 
 
 In contracts reciprocally beneficial to both parties, such What care is 
 as Hiring, &c., such care is exacted, as every prudent man required, 
 commonly takes of his own goods ; and by consequence 
 the Hirer is answerable for ordinary neglect {a). If there- 
 fore 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 {b). 
 
 Where the plaintiff declared that, at the defendant's Infancy good 
 request, he delivered a Mare to the defendant to be pru- <iefence to an 
 
 ^ ' '- action on 
 
 contract. 
 39 L. J., {z) Gapp V. Giandonati, C. P., 
 
 N. P., Nov. 14, 1857, coram Cress- 
 well, J. 
 T. 231, {n) Jones on Bailments, 2.5. 
 
 (/') Cooper \. Burton, 3 Camp. 5, n. 
 
 (w) L. R. 
 
 ,5 Q.B. 509; 
 
 Q. B. 113. 
 
 
 {x) 11 CI. 
 
 &Pin. 1. 
 
 (y) Chew 
 
 V. Jones, 10 L, 
 
 308. 
 
 
248 
 
 LIVERY-STABLE KEEPERS, AGISTERS, ETC. 
 
 Seals where 
 action founded 
 in tort. 
 
 Where Hirer 
 is answerable 
 at all events. 
 
 Unnecessary 
 deviation. 
 
 Where negli- 
 gence must 
 be proved. 
 
 Where Horse 
 falls lame. 
 
 Where the 
 Horse is ex- 
 hausted. 
 
 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 {c). 
 
 But where it is clear, from the Statement of Claim, the 
 whole of which must be looked at in order to see whether 
 the action is substantially founded in tort or in contract, 
 that the plaintiff claims damages for a tort ; and that in 
 addition to breaking the contract, the defendant by driving 
 the Horse at an excessive speed, and unduly flogging and 
 otherwise illtreating and negligently and carelessly using 
 him, has committed a separate and independent wrong 
 apart from the contract, he will be liable for that wrong 
 in the action, and the plea of infancy will afford no 
 defence (r/). 
 
 A Hirer is answerable at all events, if he keep the thing 
 hired, after the stipulated time, or use it differently from 
 his agreement {e). 
 
 If a man Hire a Horse to go from A. to B., he ought to go 
 by the usual road, and should not unnecessarily 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 (_/). 
 
 Where there has been no material deviation, and the Horse 
 has not been kept after any stipulated time, there must be 
 positive proof of negligence, to fix the Hirer. For instance, 
 if an action is brought against him for using a Hired 
 Horse so negligently that it broke its knees, it will not be 
 sufficient for the plaintiff merely to show that the Horse 
 was a good Horse, and not in the habit of falling {g) . 
 
 If the Horse falls lame on the journey, the Hirer may 
 abandon him at any place where he turns out unfit, and 
 give notice of that fact to the party letting him out, whose 
 duty it is to send for him (A). 
 
 Where the strength of a Horse which has been Hired 
 or Borrowed is e.rJiausted, and it has refused its feed, the 
 Hirer or Borrower has no right to pursue his journey with 
 it. This was so held in Bray v. Mayne (/), where a person 
 had a Horse on trial for some days on condition that he 
 should pay 10/. for its hire if he did not like it. The 
 
 [c) Jcnmngs v. Rioidall, 8 D. & R. 
 335. 
 
 id) Wallcy v. EoU, 35 L. T., 
 N. S. 631. 
 
 (e) Jones on Bailments, 121. 
 
 (/) Hee Davis v. Garreff, 6 Bing. 
 
 716. 
 
 {if) Cooper V. Burton, 3 Camp. 
 5, u. 
 
 (A) Per Pollock, C. B., Chew v. 
 Jones, 10 L. T., Ex. 231. 
 
 (i) Braij X. Mayne, 1 Gow, 1. 
 
HIRING HORSES. 249 
 
 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, however, 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 plaintiff's stables, 
 it was in much worse condition than when delivered. 
 
 A Veterinary Surgeon in his evidence said that he con- Where the 
 sidered it a want of proper care and attention to compel a ^^g^fg^d^^"^^^ 
 Horse to pursue his journey after it had been driven twenty 
 miles, and had then refused its feed ; and Chief Justice 
 Dallas directed the Jury accordingly {J). 
 
 His Lordship also held that the defendant was not Where the 
 entitled to return the Horse on payment of the 10/., because J^^^g^Tu ^' 
 as the Horse, on being retm'ned, was in a worse state than worse con- 
 when originally delivered, the condition on which it was dition. 
 delivered had not been fulfilled (,/ ). 
 
 If a Sired Horse is taken sick on the journey agreed Expenses of 
 upon, without the fault of the Hirer, its cure is at the ^^rmg Sick 
 expense of the owner [k). 
 
 But if the Hirer prescribes medicines for it, he is an- Where the 
 swerable for any improper treatment, but not if he call Horse is m- 
 in a Farrier. Thus, where a Horse has been hired of the tored. 
 plaintiff by the defendant, who, on the Horse having been 
 taken ill, prescribed improper medicines for it, and the 
 Horse died. Lord EUenborough said, " Had the defendant 
 called in a Farrier, he would not have been answerable for 
 the medicines the latter might have administered ; but 
 when he prescribes himself, he assumes a new degree of 
 responsibility ; and prescribing so improperly, I think he 
 did not exercise that degree of care which might be ex- 
 pected from a prudent man towards his Horse, and was in 
 consequence guilty of a breach of the iniplied undertaking 
 he entered into when he hired the Horse from the plain- 
 tiff (/). 
 
 Pothier says, that where a Horse is let to one on hire, to Who must 
 be kept by him for a certain period, the Hirer is to pay for P'^y *°^ ^^°^' 
 his shoeing during that time. But that it is otherwise, if a "* 
 person lets his Coach and Horses to another for a journey, 
 to be driven by his own servants {ni) . 
 
 A bailee of goods for hire, by selling them determines Bailment de- 
 
 (./) 7? ray V. 3Iayne, 1 Gow, 1. {!) Dean v. Kcate, 3 Camp. 4. 
 
 [k) Pothier, Louage, p. 129; (;«) See Pothier, Louage, pp. 107, 
 
 Story on Bailments, 258. 129 ; Story on Bailments, 2.58. 
 
250 
 
 LIVERY-STABLE KEErEIlS, AGISTERS, ETC. 
 
 termined by 
 selling the 
 goods. 
 
 Where the 
 Horse is 
 stolen from 
 the Hirer. 
 
 Where the 
 Horse is 
 stolen by the 
 Hirer. 
 
 the bailment, and the bailor may maintain Trover against 
 the purchaser, though the purchase was bond fide {n). 
 Thus, where a person Iiircd 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 (o). 
 
 If through the ITirer^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 way for 
 the negligence of his servant when acting under his direc- 
 tions either express or implied (p). 
 
 If a person gets a Horse out of the possession of the 
 Owner under the pretence of hiring it, and then go and 
 offer it for sale, there will be no Felony at common law 
 until the sale is 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 Manchester Square, London. It appeared 
 that he drove it off for 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 custody {q). 
 
 On the trial Pearls case (r), Charleuvod^s case (s) 
 and SempJe's ease it) were referred to, and the following 
 passage from the latter Cjuoted : — " But, on the other 
 hand, if the hiring was only a, j^refenee 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 be the Felony. ^^ 
 
 And Chief Justice Tindal said, " This case comes near 
 to many of those which have decided that the appro- 
 priation of property, under circumstances in some degree 
 similar to the present, amounts to Larceny. However, 
 
 {n) Cooper V. WiUomatf, 1 C. B. 
 C72. 
 
 (o) ShcUi/, Administratrix, v. Ford, 
 5 C. & P. 313; and see Stolen 
 Horses, ante, Chap. 3. 
 
 (p) Jones on Bailments, 8S. 
 {q) Hcff. V. Uroolcs, 8 C. & P. 295. 
 [r) I'car^s case, 1 Leach, 212. 
 (.v) CharlnvoocVscase, 1 Leach, 409. 
 {t) Scmple's case, 1 Leach, 420. 
 
HIRING HORSES. 251 
 
 there lias been no actual conversion of the property, but 
 only an offer to sell ; therefore the prisoner must be ac- 
 quitted {u). 
 
 If the Owner parts with the possession of a Horse for a Must have 
 sjjecial purpose, and the bailee, when that purpose is exe- ^^^ ^ta^ken 
 cuted, neglects to return it, and afterwards disposes of it ; -vvith a felo- 
 if he had not a felonious intention when he originally took nious inten- 
 it, his subsequent withholding and disposing of it will not, ^g^ law^"^" 
 at common law, constitute a new felonious taking, or make 
 him guilty of Felony {x). 
 
 But these questions will not now arise in cases of the Now bailee 
 kind just referred to, as by 24 & 25 Yict. c. 96, s. 3 (//), j^^°*f ^^^^'^ 
 the fraudulent appropriation of property by bailees is 2I & 2.5 Vict. 
 declared to be Larceny, and may be the subject of an in- c. 96. 
 dictment for Larceny. 
 
 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 ^ ^ servan . 
 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 the coachman hired them on his own account, 
 and not for his master (s) ; for wherever one of two in- 
 nocent persons must suffer by the acts of a third, he who 
 has enabled such third person to occasion the loss, must 
 sustain it («). 
 
 In general the Owner of a Horse is liable for any acci- Owner's lia- 
 dent which may befall it when fairly used by the IT/r^r (h). ^Si^enr 
 Thus, where a Carriage is let for hire, and it breaks down 
 on the journey, the person who lets it is liable, and not the 
 Hirer (c) ; unless it breaks down through some act of the 
 Hirer, which is not within the Contract {d). And we 
 shall see in a variety 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. 
 
 ((/) Beg. V. Broolis, 8 C. & P. 295. (a) Per Ashurst, J., Liclharroiv 
 
 But see post. v. Mason, 2 T. R. 70. 
 
 (.!■) Rex V. Banl;s, R. & Pt. 441. {])) See Arbon v. Fussell, 3 F. & 
 
 But see post. P. lo2 ; and Holmes v. Onion, 2 C. 
 
 iy) Founded on 20 & 21 Yict. c. B., N. S. 790. 
 
 54, s. 4. (r) Sutton v. Temple, 12 IM. & ^Y. 
 
 {z) Eimell v. Sampayo, 1 C. & P. 60. 
 
 254. {(I) Lygo v. KcwboU, 23 L. J., 
 
 Ex. 108. 
 
252 
 
 LIVERY-STABLE KEEPERS, AGISTERS, ETC. 
 
 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 
 servant. 
 
 Laugher v. 
 Ifointer. 
 
 If a man hire a Carriage and any number of Horses, 
 and the 0/nicr 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 Oicner^s servants (c). 
 
 Where Horses are hired to ch^aw a private carriage to 
 a certain place, and they are driven by the Oicner\s servants, 
 the Owner is liable for any damage done through the 
 servants' negligence. For where a person hired Horses to 
 take his own Carriage to Epsom, and he was driven by the 
 Oicner^s postboys. Lord Ellenborough held that a person 
 who hires Horses under such circumstances has not the 
 entire management and power over them, but that they con- 
 tinue under the control and j)ower of the servants who are 
 entrusted with the driving ; and that the Oivner of them 
 would be answerable for any accident occasioned liy the 
 postboys' misconduct on the road ; and his lordship 
 mentioned a case of the kind, in which damages were 
 recovered against the O/oier of a Chaise for an injury done 
 by it when Mr. Burton, a Welsh Judge, was in it, and who 
 was called as a witness (/). 
 
 And where Horses were hired to draw a private Car- 
 riage to Windsor, the Oinier of the Horses was held liable 
 for damage done, because they were under the care and 
 direction of his servant {rj). 
 
 And in the case of Sir Henry Hoghton (A), Horses 
 were hired by him to draw his Carriage, trarelUng post, and 
 he was held not to be answerable for damage which had 
 been done. 
 
 But where Horses have been hired to be driven about by 
 the Oivner^ s servant wherever the Hirer pleases, and for 
 which he gives him some gratuity, there seems at one time 
 to have been a difference of opinion among the Judges as 
 to the party liable for injury done. 
 
 In Laugher v. Pointer (/), where the able Judgments on 
 both sides, as is observed by Mr. Justice Story in his book 
 on Agency, " exhausted the whole learning of the subject," 
 
 ((') Jones on Bailments, 88 ; 
 Samuel v. Wright, 5 Esp. 2G3 ; 
 Smith V. Laivrencc, 2 M. & E,. 1. 
 
 (/) Dea/i V. Branthu-aite, 6 Esp. 
 35 ; and quoted by Mr. Justice 
 Littledale in Laugher v. I'ointcr, 
 
 5 B. & C. 558. 
 
 (g) Samuel Y. JFright, BBsyi. 2G3. 
 
 (h) Sir II. Hoghtotis case, cited 
 5 B. & C. 550. 
 
 (i) Laugher v. Fointcr, 5 B. k C. 
 558. 
 
HIRING HORSES. 253 
 
 the Judges of tlie 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 
 Hoh'oyd being of the contrary opinion. 
 
 In the case of Quarmcui v. Buriiett (J:), the owners of Owner held 
 the carriage had always been driven by the same driver, livable m 
 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 circumstances which dis- 
 tinguish the present case, and that we must decide the 
 difference between the Judges in Laugher y. Pointer (1). 
 There is no satisfactory evidence of any selection by which 
 this man was made the defendant's servant ; 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 servant, where there is a choice 
 amongst more, any more than a hack postboy ceases to be 
 the servant of an Innkeeperj where a traveller has a 
 particular preference to one over the rest, on account of his 
 sobriety and carefulness. 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 themselves, it would have made all the 
 difference." 
 
 " The fact of the coachman wearing the defendants' Wearing- the 
 livery with their consent, and so being the means of in- Hirer's li- 
 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 defendants 
 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 contract ; 
 but this representation can only conclude the defendants 
 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, 
 
 (/.•) Qnarman v. Burnett, 6 M. & {I) Laugher v. Pointer, 5 B. & C. 
 
 W. 499. 547. 
 
254 
 
 LIVERY-STABLE KEEPERS, AGISTERS, ETC. 
 
 A Job- 
 master's 
 Asyreement. 
 
 Where the 
 Hirer is liable 
 for damaM. 
 
 Hirer liable 
 through his 
 own conduct. 
 
 Hirer liable 
 where he 
 might have 
 controlled his 
 Servant. 
 
 wliicli the fact at once answers. We have fully considered 
 the judgments on both sides in Laugher v. Pointer {in), and 
 think that the weight of authority and legal principle is in 
 favour of the view taken by Lord Tenterden (w) and 
 Mr. Justice Littledale." 
 
 A person Jobbing a Carriage by the year under a 
 written agreement, by which the owner binds himself 
 " to keep the same in perfect repair without any fiu-ther 
 charges whatever," is not liable for repairs made necessary 
 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 through the ^cilful default of 
 the defendant. With regard to the evidence of the usage 
 of the trade, the language of the agreement between the 
 parties being clear and unequivocal, evidence as to the 
 general usage of the trade cannot be of any avail" (o). 
 
 The Hirer of a Horse or Carriage is liable for damage 
 occasioned by the negligence of himself or his servant ; 
 and where two persons hire a Carriage, they are both 
 answerable for any damage occasioned by the negligent 
 driving of one of them ; but if it be hu-ed by one only, the 
 other, who is a m.ere passenger, is not liable [p). 
 
 It is undoubtedly true that there may be special circum- 
 stances which may render the Hirer of Job Horses 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 order- 
 ing the Servant to drive in a particular manner which 
 occasions the damage complained of {q). 
 
 When a Master and Servant are together in a Carriage, 
 and an injmy ensues, the Master, from his mere presence, 
 is a co-trespasser, if the act of the Servant amount to a 
 trespass (r). And on this principle w^here a Carriage and 
 Horses are hired, and the postboys are servants of the 
 owner ; if the Mirer be sitting outside, and have a view of 
 their proceedings, and do not interfere to prevent their 
 
 (;k) Laugher v. Foinier, 5 B. & C. 
 547. 
 
 (w) Then Chief Justice Abbott. 
 
 (o) Reading v. Mcnhain, 1 M. & 
 Eob. 234. 
 
 (p) Davy V. Chamherlayne, 4 Esp. 
 229. 
 
 {q) Per Parke, B., Quarman v. 
 Burnett, 6 M. & W. 499. 
 
 ()•) Chandler v. Broughton, 1 Cr. 
 & M. 229. 
 
TURING HORSES, 255 
 
 miscondact, and an iujmy ensues, lie is a co-trespasser with 
 them, hecause 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 McLaughlin v. 
 subject, and laid down the law upon it in the case of ^'''J°^'' 
 MLaughUn v. Pry or (s), in which a tresjmss had been 
 committed by a Carriage and Horses hired by the de- 
 fendant driving against the plaintiff's gig. It appeared 
 that the defendant and seven others were driving in a 
 Carriage and four, with two postillions, to Epsom races 
 on the 3rd of June, 1840. The defendant with another 
 party sat upon the box. The Carriage Avas not in the 
 line of the vehicles which were going through the turnpike 
 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 and a friend of his, 
 Mr. Mason, were 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 Carriage caught the wheel 
 of the plaintiff's gig ; the gig was uj^set, and the plaintiff 
 was injured and rendered lame for life. Immediately 
 before the accident the defendant called out to his pos- 
 tillions to let the plaintift^'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 Car- 
 riage, 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 — reserving 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 Opinion of 
 
 (.v) M'LaughUn v. Fnjor, 1 C. & Marsh. 354; S. C. 4 Scott, N. E. G55; 
 4 M. & G. 48. 
 
256 
 
 LIVERY-STABLE KEEPERS, AGISTERS, ETC. 
 
 the Court of 
 
 Common 
 
 Pleas. 
 
 The General 
 Rule. 
 
 Wliere the 
 Hii'er would 
 not be liable. 
 
 Hirer sitting' 
 outside liable. 
 
 rule iiisi 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 he entrusts the government and direction of 
 his Plorses 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 Greneral Eule is, that all who are present, and who 
 from the circumstances may be presumed to be assenting 
 to the wrongful act, are tresjjassers. 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 
 box of the Carriage ; and when he saw that the Carriage 
 was out of the line, he must have known that the post- 
 boys 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- 
 tate not to say that he would not have been a trespasser, 
 whatever might have ensued ; for no servant can against 
 his master's u-iil make him a trespasser by any wrongful 
 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, 
 and seeing the improper manner in which the postboys 
 were endeavoming 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 some evidence whence the 
 Jury might properly infer that the defendant assented to 
 
HITIING HORSES. 257 
 
 that course. But tlie 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 (/) and Chandler v. 
 BrougJiton {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 
 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 Jmy 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 (.r) . 
 
 It is always a question for the Jmy whether the driver The Jury 
 is acting as servant for the Hirer or Owner; and Lord must<iecide 
 Abinger, in leaving that point to the Jury, observed, servant is 
 "that no satisfactory line could be drawn, at which, as acting for the 
 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 A^ Hirer's 
 answerable for accidents. Thus in the following case it ° 
 appeared that a man who let out Horses to hire told a 
 
 (0 Gregonj v. Tlpcr, 9 B. & C. (.r) M'LaurjUin v. Pnjor, 1 C. & 
 
 591 ; 4 M. & E. 500. Marsh. 354 ; ^5'. C. 4 Scott, N. R. 
 
 («) Chandler v. Broughtou, 1 C. & 655 ; 4 M. & G. 48. 
 M. 29. (y) Brady v. Giles, 1 M. & Rob. 
 
 49(5. 
 
 0. S 
 
258 
 
 LTVERY-STABLE KEEPERS, AGISTERS, ETC, 
 
 person who applied to Lim for one, tliat lie had no Horse 
 at home hut a hlack one which shied, and that if he took 
 it on hire he must be answerable for all accidents. The 
 Horse was engaged for six weeks at a certain price, and 
 it appeared that whilst it was in the Jlirer'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 was held answerable for the damage done (s). 
 
 Lending for 
 use. 
 
 Duties of 
 BoiTower and 
 Lender. 
 
 Lender of a 
 Horse. 
 
 Must not 
 
 conceal 
 
 defects. 
 
 "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(rO. 
 
 The duties of the Borroiccr and Lender are thus well 
 laid down by Mr. Justice Coleridge in Bkickniore v. 
 Bristol and Exeter Railway Company (b) : — " The duties 
 of the Lender and Borrower are in some degree correlative. 
 The lender must be taken to lend for the purpose of a 
 beneficial use by the Borrower ; the Borrower therefore is 
 not responsible for reasonable wear and tear ; but he is 
 for negligence, for misuse, for gross want of skill in the 
 iise, above all, for anything which may be defined as legal 
 Fraud. So, on the other hand, as the Lender lends for 
 beneficial use, he must be responsible for defects in the 
 chattel, with reference to the use for which he knows the 
 loan is accepted, of which he is aware, and owing to which 
 directly the Borroircr is injiu'ed." 
 
 " "Would it not be monstrous to hold, that if the owner 
 of a Horse, knowing it to be vicious and unmanageable, 
 should lend it to one ignorant of its bad qualities, and 
 conceal them from him, and the rider, using ordinary care 
 and skill, is thrown from it and injured, he should not be 
 responsible." 
 
 " By the necessarily implied purpose of the loan a duty 
 is contracted towards the Borrower not to conceal from him 
 those defects, known to the Lender, which may make the 
 loan perilous or unprofitable to him." 
 
 In contracts from which a benefit accrues only to him 
 
 {z) Jeffery v. Walton, 1 Stark. 
 N. P. C. 267. 
 
 (a) Jones on Bailments, 118. 
 
 [h) BlacJnnore v. Bristol ^- Exeter 
 Raihvay Co., 27 L. J., Q. B. 167. 
 Seealso 31 'Cart /ti/v. Young, 3L. T., 
 
 N. S. 785. 
 
BORROWING HORSES. 259 
 
 who has the goods in his custody, as in that of lending for 
 use, an c.rfraordinary degree of care is demanded, and the 
 Borroiccr is therefore responsible for fsUght negligence {c). 
 
 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 sup- *^® Borrower 
 posed to have demanded no higher care than that of which bestlwm^.'^ 
 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 {d) . 
 
 Where a person rides a Horse gratuitously at the Sliowing a 
 Owner^s request, for the pm-pose of shouing him for sale, Horse for 
 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 Borrou-er for 
 injury done to the Horse while ridden by him. In a case 
 tried before Mr. Baron Eolfe, it appeared that the plain- 
 tiff had entrusted a Horse to the defendant, requesting 
 him to ride it to Peckham, for the ]3urpose of showing it 
 for sale to a Mr. Margetson. The defendant accordingly 
 rode the Horse to Peckham, and, for the purpose of 
 showing it, took it into the East Surrey Pace Grrouncl, 
 where Mr. Margetson was engaged with others playing 
 at cricket ; and there, in consequence of the slippery 
 nature of the ground, the Horse slipped 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 borrowed 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 misdirection. Lord Abinger, 
 C. B., saying, "We must take the siunming-up altogether; 
 
 (c) Jones on Bailments, 6.5. See Dumoulin's Tract — De eo quod 
 Exod. xxii. 14, 15. interest, 185 ; Story on Bailments, 
 
 [d) Jones on Bailments, G5 ; 161. 
 
 s. O 
 
260 
 
 LIVERY-STABLE KEEPERS, AGISTERS, ETC. 
 
 A gratuitous 
 Bailee. 
 
 Negligence of 
 a Bailee. 
 
 Rule as to 
 negligence of 
 gratuitous 
 Bailee. 
 
 Use strictly 
 personal. 
 
 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 J)ailee is onh/ hound to exercise such skill as he 
 possesses, whereas a Hirer or Borrower may reasonably 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 
 diif erence in the liability. I said I could see no cliiference 
 between negligence and gross negligence — that it was the same 
 thing with the addition of a vituperative epithet" (e). 
 
 Whether there is a distinction, and what that distinction 
 is, if there be one, between negligence and gross negligence, 
 is a matter of little importance ; but one thing is settled, 
 that the negligence of a gratuitous bailee, to be actionable, 
 differs from the negligence which would be actionable in a 
 bailee, who is not gratuitous, and the distinction appears to be 
 that a gratuitous bailee is not liable for simple negligence, 
 for which a borrower would be liable, but only for such 
 negligence as he is guilty of in spite of the better sliill or 
 knowledqe, n-liich he either actually had, or undertook to 
 have (/). 
 
 And the principle upon which he is liable is thus well 
 laid down in Coggs v. Bernard (g) : " If a man will enter 
 upon a thing, and take the trust upon himself, and mis- 
 carries in the performance of the trust, an action will lie 
 against him for that ; though no one could have compelled 
 him to do the thing." 
 
 In cases of mere gratuitous loan, the use is to be deemed 
 strictly a personal favour and confined to the Borrower, 
 
 {e) Wilson v. Brett, II M. & W. 
 113. See also per Willes, J., in 
 Grill V. General Iron Screw Colliery 
 Co., L. R., I C. P. 612. 
 
 (/) 1 Smith's L.-C. Sth ed. 221, 
 222; per Pollock, C. B., Bml v. 
 South Bcvou liailicaij Co., 5 H. & N. 
 
 881 ; Austin v. Manchester Rail- 
 tcay Co., 10 C. B. 454; Gihlin v. 
 McMullen, L. R., 2 P. C. 317. 
 
 {g) Coqgs v. Bernard, I Smith's 
 L. C. Stii ed. 199 et seq. ; Glblin v. 
 McMullen, L. R., 2 P. C. 317. 
 
BORROWING HORSES. 261 
 
 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 (/»). 
 
 A borrowed Horse cannot be used by a servant. Thus, Cannot be 
 where an action of Trespass was brought for immoderately used by a 
 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 
 annexed to the person of the defendant, and could not be 
 communicated to another (?). 
 
 If a Horse or Cart, or such other thing as may be used Must be used 
 and delivered again, be used according to the purpose for th°°i ndm*° 
 which they are lent and they perish, he who owns them 
 must bear the loss, if they perish not through default of 
 him who horroicecl them, or he made a promise at the 
 time of delivering to redeliver them safe again (/r) . 
 
 But if they be used in any other manner than according Or else the 
 to the lending, in whatever manner they may perish, if it Borrower is 
 be not by default of the Owner, the Borrower is chargeable 
 both in law and conscience (/). Thus, if the Borrower, 
 instead of coming to London, for which purpose the Horse 
 was lent, go towards Bath, or having borrowed him for a 
 week, keep him for a month, he becomes responsible for 
 any accident that may befal the Horse in his journey to 
 Bath, or after the expiration of the week {in). 
 
 In regard to time, if no particular time is f red, a reason- Wliereno 
 
 able time must be intended, keeping in view the obiects of time is fixed 
 
 • • - tor rGturn 
 
 the bailment. If a Horse is lent for a journey, it is pre- 
 sumed 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 {u). 
 
 But where the Borrower of a Horse promised to re-deliver Redeliv^ery 
 it on request, and the Horse died without his default before °^ request, 
 request, he was held not liable (o). 
 
 A party who borrows a Horse is bound to feed it during Borrower 
 
 (h) Story on Bailments, 161 ; {m) Jones on Bailments, 68 ; 
 
 and lord Canioys v. Scurr, 9 C. & Coqqs y. Bernard, Ld. Raym. 915; 
 
 P. 386. 2 Ld. Raym. 909 ; 3 Bract, c. 2, 
 
 (i) Bringloe v. Morrice, 1 Mod. s. 1 ; 1 Smith's L. C. 8th ed. 199. 
 R. 210 ; ;S'. C. 3 Salk. 271. (w) Story on Bailments, 161. 
 
 {k) Noy's Maxims, 91. (o) Williaim v. Lloi/d, Jones on 
 
 (0 Ibid. Bailments, 179; S. C. nom. Wil- 
 liams V. mil, Palm. 518. 
 
262 
 
 Ll VERY-STABLE KEEPERS, AGISTERS, ETC. 
 
 bound to feed 
 the Horse. 
 
 Where the 
 Horse is ex- 
 hausted. 
 Where the 
 Horse is 
 kiUed. 
 
 W^here the 
 Horse dies 
 from disease. 
 
 Where Bor- 
 rower is 
 answerable 
 for damage. 
 
 Bailment 
 ended by 
 misiiser. 
 
 the time of the loan ( 7;) ; and if it is returned out of 
 condition, the Borroircr would probably he called upon to 
 prove that lie fed it properhj, and that the falling off in 
 condition did not arise from any neglect on his part ((7). 
 
 Where the Horse is exltaustcd and refuses his feed, he 
 must not be ridden or driven any further (r). 
 
 If a man through his own imprudence has his borrowed 
 Horse killed, by robbers for instance, or by a ruinous 
 House or Stable, in manifest danger of falling, coming on 
 to his head, the Owner is entitled to the price of the Horse, 
 but not if the House or Stable were in good condition, and 
 fell by the violence of a sudden hurricane (s). 
 
 Where a borrowed Plorse dies from disease, the Borroicer 
 is not answerable. Thus, in Williams v. Hide et Uxor, (t) 
 the plaintiff declared that in consideration he had lent to 
 the defendant's wife, du?)i sola, a Horse to be returned upon 
 request, she promised to return it upon request, but had 
 not done so. The defendants pleaded that, before the 
 request, the Horse per diversos morbos in corpore 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 Grod, 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 j)erson in driving (?/). 
 
 The Rule is, that w^hen 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). 
 
 (;?) Ilandford v. Falnicr, 2 B. & 
 Bing-. 359. 
 
 («/) Bray \. Mayne, 1 Gow, 1 . 
 
 (r) Ibid. ; and see Hiring Horses, 
 ante. 
 
 (s) Jones on Bailments, 68. 
 
 [t) WiUiaiiJs V. Hide ct Uxor., 
 
 Palm. 548 ; cited in Foiccl v. Salis- 
 biin/, 2 Y. & J. 394. 
 
 (ll) WheafUy v. FnfricL; 2 M. & 
 W. 650 ; and see Hii-ing Horses, 
 ante. 
 
 (.r) See per PoUock, C. B., Bryant 
 V. Wurddl, 2 Ex. 482. 
 
( 263 ) 
 
 CHAPTER XII. 
 
 CARRYING HORSES. 
 
 A Common Carrier 26-t 
 
 Bailway Companies Common Car- 
 riers id. 
 
 Duty of Common Carriers .... id. 
 Inherent Vice in Animal 265 
 
 Froofof 266 
 
 Rule applies to Common Carriers 
 
 by Sea 267 
 
 When Carrier may refuse to 
 
 carry Animals 268 
 
 On Ks of Proof of Xo)i -liab ility . . id. 
 Must carry for reasonable Charges id. 
 
 Defects in Carriages id. 
 
 A special Contract to carry .... id. 
 
 Binding at Common La,w 269 
 
 Hardship thus occasioned id. 
 
 Remedy 17^-18 Vict. c. 31 id. 
 
 Sections 1 — 6 id. 
 
 Section 7 id. 
 
 Application of Section 7 270 
 
 Construction of Section 7 271 
 
 Peek r. North Staffordshii-e 
 
 Railway Co id. 
 
 General Xotices invalid 272 
 
 Condition limiting Liability .... id. 
 " Condition''^ and " Special Con- 
 tract'''' synonymous Terms .... id. 
 Special Contract binding on Com- 
 
 jmny without Signature . . . , 273 
 Effect of Signature by Agent . . id. 
 As to reasonableness Court to decide id. 
 General Effect of these Decisions 274 
 JFhat Cond'itions just and reason- 
 able and tchat not id. 
 
 ''To be free from all Risks''^ — 
 
 Cattle suffocated id. 
 
 ''To be free from all Risks of 
 
 Conveyance'''' — Unsound Truck 275 
 Owner'' s Risk at lower Rate .... 276 
 Condition as to Timewithinwhich 
 
 Loss should be declared to create 
 
 Claim id. 
 
 Condition as to Special Rate .... id. 
 
 As to Package insuffic'iently 
 packed id. 
 
 As to Non-l'iab'iVity for Loss 
 of Market as to Fish id. 
 
 As to Cheese id. 
 
 As to Loss of Market cou2)led 
 w'Uh " Injimf to Cattle . . 277 
 
 Condition as to Value coupled 
 w'ith unreasonable Rate 278 
 
 Where Value untruly declared. . 279 
 
 Condition as to General Non- 
 
 ~liability id. 
 
 As to Non-UabiUty beyond 
 their oicn Limits 280 
 
 If part of Spec'ial Contract is 
 reasonable, such Part may be 
 rel'ied on 281 
 
 Alternatire Rates id. 
 
 What is Wilful Misconduct 282 
 
 Onus of Proof 283 
 
 General Effect of the Dec'tsions as 
 to Conditions id. 
 
 Delivery by Carrier id. 
 
 Notice of Consignee's Refusal to 
 Consignor id. 
 
 Eff'ect of Consignee'' s Refusal . . id. 
 
 Compensat'wn paid in Error to 
 Consignor no Answer to Action 
 by Consignee 28-4 
 
 Liability of Company when Ac- 
 cident happens to Horse 'in their 
 Yard id. 
 
 Opinion of Cockburn, C.J. .... id. 
 
 OfMellor, J. 285 
 
 Of Blackburn, J. id. 
 
 Declaration of Value under 17 ^' 
 18 Vict. P. 31, s. 7 id. 
 
 Non-compliance tcith a Rule as to 
 Receipt id. 
 
 Through Carriage on Railways, 
 what Company licMe 'id. 
 
 Gill V. Manchester, &c. Rail. 
 Co 286 
 
 Combe v. London & South 
 Western Rail. Co 287 
 
 Through Carr'iage by Rail and 
 Sea id. 
 
 Regulation ofRa'ilwaysAct, 1868 id. 
 
 Regulation of Ra'ilwai/s Act, 1871 288 
 
 Doolan v. Midland Rail. Co. . . 289 
 
 Steamboat and Railway Com- 
 panies to dis'iufect Carriages, 
 Boats, S;c 290 
 
 " Reasonable Time" id. 
 
 A Ferryman 291 
 
 Damages 292 
 
 Injury must not be too remote . . id. 
 
264 
 
 CARRYING HORSES. 
 
 CARRYING HORSES. 
 
 A Common 
 Cai-rier. 
 
 Railway 
 
 Companies 
 
 Common 
 
 Carriers. 
 
 Duty of 
 Common 
 Carriers. 
 
 A Common Carrier is a person who undertakes for hire 
 to transport from place to place, either by land or water, 
 the goods of such persons as think fit to employ him (a). 
 A person who carries persons onI>/ is not a Common 
 Carrier {b). 
 
 Railway Companies are Common Carriers (c). But 
 their duties and obligations differ in some respects from 
 those which attach to Common Carriers by virtue of the 
 Statutes under which they are constituted, and of other 
 Acts, more especially the Eailway and Canal Traffic Act, 
 1854 {d). 
 
 A Common Carrier is bound to convey to and from the 
 places within which he professes to ply (although one of 
 those places may be without the realm (e) ), the goods of 
 any person who offers to pay his hire, unless his carriage 
 be already full, or the risk sought to be imposed upon him 
 be extraordinary, or unless the goods be of a sort which he 
 cannot convey, or which he is not in the habit of con- 
 veying (/). He is not, in the absence of a special contract, 
 bound to carry within any given period of time, but only 
 within a time which is reasonable, regarding all the circum- 
 stances of the case ; and he is not responsible for delay 
 arising from causes beyond his control {g). He is bound 
 to deliver the goods safely, and in the same condition as 
 when they were received ; or in default thereof to make 
 compensation to the owner for any loss or damage which 
 happens while the goods are in his custody, except 
 such loss or damage as arises from the act of God, as 
 storms, tempests, and the like ; or from the Queen's 
 enemies {/>). Act of Grod means not merely an accidental 
 
 (ff) C'offffs V. Bernard, 1 Smith's 
 L. C. Sth ed. 199 ; Trent and Mersey 
 Navigation v. Wood, 3 Esp. 127 ; 
 S. C. 4 Doug. 287. 
 
 {h) See Co(jgs v. Bernard, 1 Smith's 
 L. C., 8th ed. 199, and cases there 
 cited. 
 
 (c) Coqgs V. Bernard, 1 Smith's 
 L. C. 8th ed. 199 ; Palmer \. Grand 
 Junction Canal Co., 4 M. &W. 749 ; 
 Pichford V. Grand Junction Jxaihrag 
 Co., 10 M. & W. 399; Parl-er v. 
 Great Western Eailwatj Co., 7 Scott, 
 N. R. 835. 
 
 {d) 17 & 18 Vict. c. 31 ; see post, 
 
 p. 269. 
 
 (f) Crouch V. London and Xorth 
 Western Bailway Co., 23 L. J., C. 
 P. 73. 
 
 (/■) See Coggs v. Bernard, 1 
 Smith's L. C. 8th ed. 199 ; Chit. 
 Contr. 7th ed. 433 ; Piekford v. 
 Grand Junction Railway Co., 10 M. 
 & W. 399 ; ParJccr v. Great Western 
 Bailway Co., 7 Scott, N. R. 835. 
 
 [(/) Tai/lorw Great Northern Rail- 
 vay Co.,'L. R., 1 C. P. 385 ; 35 L. 
 J., C. P. 210. 
 
 {h) Crouch v. Great Western Rail- 
 way Co., 11 Ex. 742. 
 
CARRYING HORSES. 265 
 
 circumstance but something overwhelming (i), and which 
 "could not have been prevented by any amount of foresight 
 and pains, and care reasonably to be expected from " the 
 Carrier (/»■). 
 
 The liability of railway companies as common carriers Inlierent 
 of animals is subject to a further exception in cases where ^^°^' 
 the injury is the consequence of an inherent vice of the 
 animal carried, w^hich results in its destruction, without 
 any negligence on their part. The leading case on this 
 subject is Blower v. Great Western Rail. Co. (I), which was 
 an action brought in the County Court of Monmouthshire 
 against the Great Western Railway Company for the 
 non-delivery of a Bullock which was delivered to them at 
 Dingestow station to be carried by them to Northampton. 
 In the course of the journey the animal escaped from the 
 truck in which it was placed, and was killed. In a case 
 stated by the County Court Judge, it was found that the 
 escape was w^holly attributable to the efforts and exertions 
 of the animal itself, and not to any negligence on the part 
 of the company, and that the truck -was in every respect 
 proper and reasonably sufficient for the conveyance of cattle ; 
 the Court held that, upon this state of facts, the Judge ought 
 to have directed a verdict for the defendants, and Willes, J., 
 in the course of his judgment, said, " The Bullock was 
 received by the company under the terms of a notice 
 which is assailed by the plaintiff. It is unnecessary to 
 consider whether or not the notice was a reasonable one. 
 The question for our decision is, whether the defendants, 
 upon the facts and findings of the County Court Judge, 
 are liable as common carriers for the loss of this animal. 
 Whether a railway company are common carriers of animals 
 is a question upon which there has been much conflict of 
 opinion, and, although there may be difficulties in deter- 
 mining that question, such as induced Lord Wensleydale, 
 in Carr v. LancasJdre and Yor/cs//irc Rail. Co. {m), to make 
 the observations which have elicited remarks from some 
 
 (i) OaMey Y. Portsmouth, ^-c. Steam Katharine Lochs Co., L. R., 3 Ch. 
 
 Packet Co., 11 Exch. 623 ; 21 L. J., D. 603 ; 39 L. T., N. S. 433. 
 
 Ex. 101, per Martin, B. (/) L. R., 7 C. P. 655 ; 41 L. J., 
 
 [k) Nvgent v. Smith, L. E., 1 C. C. P. 268 ; 27 L. T., N. S. 883 ; 
 
 P. D. 441, 444 ; 45 L. J., C. P. 697 ; and see Clark v. Rochester and Si/ra- 
 
 34L.T.,]Sr.S. 827; per James,L. J. cuse Hailroad Co.,!^ Nevf York, 570; 
 
 See also Nichols v. ilarsJand, L. R., liisseU v. New York Central liailroacl 
 
 10 Ex. 255 ; L. R., 2 Ex. D. 1 ; Co., 25 New York, 442. 
 
 46 L. J., Ex. 174: Roscoe, N. P. (w) 7 Ex. 712, 713; 21 L. J., 
 
 14th ed. 569, and Nitro- Phosphate, Ex. 261. 
 ^•c. Manure Co. v. London 6; St. 
 
266 CARRYING HORSES. 
 
 learned Judges apparently to the contrary, it may turn 
 out after all to be a mere controversy of words. The 
 question as to their liability may tiu'n on the distinction 
 between accidents which happen by reason of some vice 
 inherent in the animals themselves, or disposition producing 
 unruliness or phrenzy, and accidents which are not the 
 result of inherent vice or unruliness of the animals them- 
 selves. It comes to much the same thing whether we say 
 that one who carries live animals is not liable in the one 
 event, but is liable in the other, or that he is not a common 
 carrier of them at all, because there are some accidents, 
 other than those falling within the exception of the act of 
 Grod and the Queen's enemies, for which he is not respon- 
 sible. By the esp)ression ' vice,' I do not, of course, mean 
 moral vice in the thing itself, or its owner, but only that 
 sort of vice which, by its internal development, tends to 
 the destruction or the injury of the animal or thing to be 
 carried, and which is likely to lead to such a result. If 
 such a course of destruction exists, and produces that 
 result in the course of the journey, the liability of the 
 carrier is necessarily excluded from the contract between the 
 parties." 
 Proof of. Kendall v. London and South Western Rail. Co. (o) 
 
 was an action to recover damages for injuries sustained by 
 the plaintiff's Horse whilst it was being carried by the 
 defendants on their railway. The cause was tried before 
 Martin, B., at Gfuildhall, at the sittings after Hilary 
 Term, 1872. It appeared that the Horse was taken, 
 saddled and bridled, to the defendants' station at Waterloo, 
 and was there delivered to the defendants to be carried to 
 Ewell. It was attempted to be shown that the defendants' 
 servants were guilty of negligence in not fastening up the 
 stirrups ; but as the plaintiff was himself present when the 
 Horse was put into the box, and had, after first objecting, 
 acquiesced in the stirrups being allowed to hang down : 
 and, as evidence was also given that the course adopted 
 was usual and proper, that contention was abandoned. 
 
 No accident happened to the train, nor anything likely 
 to alarm the Horse, which was proved to be a quiet 
 animal and accustomed to travel by rail ; but, at the end 
 of the journey, the Horse was found to have sustained 
 considerable injuries : and it was in respect of these injuries 
 that the action was brought. 
 
 (o) L. R., 7 Ex. 373 ; 41 L. J., Ex. 18i ; 26 L, T., N. S. 735. 
 
CARRYING HORSES. 267 
 
 A verdict was entered for the plaintiff for 31/. lO^., 
 leave being reserved to the defendants to move to enter the 
 verdict for them, the Court to have power to draw inferences 
 of fact. A rule having been obtained accordingly, the 
 Court held, drawing inferences of fact (Martin and Bram- 
 well, BB., Pigott, B., dissenting), that the defendants 
 were not liable, since it was to be inferred that the injuries 
 resulted from the proper vice of the Horse. Bramwell, B., 
 saying, " There is no doubt that the Horse was the imme- 
 diate cause of its own injuries. That is to say, no person 
 got into the box and injured it. It slipped, or fell, or 
 kicked, or plunged, or in some way hurt itself. If it did 
 so from no cause other than its inherent propensities, ' its 
 j)roper vice,' that is to say, from fright, or temper, or 
 struggling to keep its legs, the defendants are not liable. 
 But if it so hurt itself from the defendants' negligence, or 
 any misfortune happening to the train, though not through 
 any negligence of the defendants, as, for instance, from 
 the horse-bos leaving the line owing to some obstruction 
 maliciously put upon it, then the defendants would, as 
 insurers, be liable. If perishable articles, say soft fruit, 
 are damaged by their own weight and the inevitable 
 shaking of the carriage, they are injured through their 
 own intrinsic qualities. If through pressure of other 
 goods carried with them, or by an extraordinary shock or 
 shaking, whether through negligence or not, the carrier is 
 liable. Since this was ^VTitten, the case of The Great 
 Wedern Rail. Co. v. Blower {p) has been decided in the 
 Common Pleas to this effect." 
 
 In Nugent v. Smith (7) a common carrier by sea from Rule applies 
 London to Aberdeen received a Mare to be carried to to Common 
 Aberdeen for hire. In the course of the voyage the ship gg™^^^ ^^ 
 encountered rough weather, and the Mare received such 
 injuries that she died. The Jury found that the injuries 
 were caused partly by more than ordinary bad weather, 
 and partly by the conduct of the Mare herself by reason of 
 fright and consequent struggling, without any negligence 
 of the carrier's servants. It was held that the carrier was 
 not liable for the death of the Mare, on the ground that a 
 carrier does not insure against the irresistible act of nature, 
 nor against defects in the thing carried itseK ; and if he 
 can show that either the act of nature, or the defect of the 
 
 (ja) Ante, p. 265. J.,C.P.G97; 34 L. T., N. S. 827— 
 
 q) L. R., 1 C. P. D. 423 ; 45 L. C. A. 
 
268 
 
 CARRYING HORSES. 
 
 When Car- 
 rier may re- 
 fuse to carry 
 Animals. 
 
 Onus of proof 
 of non-lia- 
 bility. 
 
 Must carry 
 for reason- 
 able Cbarffes. 
 
 Defects in 
 carriasres. 
 
 A special con- 
 tract to caiTy. 
 
 thing itself, or both taken together, formed the sole, direct 
 and iiTesistible cause of the loss, he is discharged. 
 
 In Richardson v. The North Eastern Rail. Co. (p), it 
 was apparently assumed that railway companies are not 
 bound to carry animals, but may limit their business of 
 carriers in this respect, and may refuse to carry animals 
 except under special contract. There the company had 
 given public notice that they were not " common carriers 
 of Horses, Cattle, Sheep, Pigs and other animals," but 
 would only undertake the carriage of animals under special 
 contract. A Grreyhound, having on a leathern collar with a 
 strap attached, was delivered to the defendants for carriage, 
 and the fare paid. In the course of the journey there was 
 a change of trains, and the Greyhound was fastened by the 
 strap and collar to an iron spout on the open platform of 
 the station. While so fastened, it slipped from the collar 
 and ran upon the line and was killed. It was held that the 
 fastening of the Greyhound by the means furnished by the 
 owner himself, which at the time appeared to be sufficient, 
 was no evidence of negligence on the part of the company. 
 
 The onus of proving that damage, happening during 
 transit or while the goods were in the Carrier's hands, was 
 occasioned by a cause for which he was not responsible, 
 lies upon the Carrier (q) . 
 
 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 customer 
 or class of customers cannot be charged more than another 
 customer or class of customers, or the public generally (r) . 
 
 Eailway Companies, being Common Carriers, are prima 
 facie liable at common law for defects in their Carriages or 
 Trucks, by which damage accrues to the goods entrusted to 
 them to carrj^ (.s;). 
 
 But a special contract entered into with a Common 
 Carrier, 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 (/) at Common Law. 
 
 (p) L. E., 7C. P. 75: 41 L. J., 
 C. P. 60; 26 L. T., N. S. 131; 
 and see Lake Shore Railroad Co. v. 
 Ferklns, 25 Micb. 329. 
 
 (q) Hudson V. Baxendale, 2 II. & 
 N. 575. 
 
 (r) Johnson v. ilidland Railicay 
 Co., 4 Ex. 367 ; and Coyrjs v. Ber- 
 
 nard, 1 Smith's L. C. 8th ed. 199, 
 and cases there cited. 
 
 (*) See Combe v. London and South 
 Western Railway Co., 31 L. T., N. 
 S. 613. 
 
 [t) Carr v. Lancashire and York- 
 shire Railway Co., 7 Ex. 707. 
 
CARRYINO HORSES. 269 
 
 At one period indeed there was a disposition in our Eluding at 
 Courts to hold that Common Carriers could not by their Cr'ominon 
 Notices shake off their Common Law responsibility ; but ^^' 
 Mr. Justice Story says {u) : — " 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 (.r), and it was admitted in Morse v. 
 Slue {//) . It is now fully recognized and settled beyond 
 any reasonable doubt in England." For this assertion he 
 cites a number of authorities, and the Court of Common 
 Pleas held that he had arrived at a correct conclusion (;;). 
 
 It being thus established, that the Common Law liability Hardship 
 of Railway Companies as Common Carriers might always *^^^ ^^^^' 
 be defeated by the express contracts to carry, which were 
 embodied in their Notices and Tickets (a), the monopoly 
 enjoyed by them led to their unduly restricting their 
 liability by sj)ecial contracts with customers, who could 
 not afford the time or expense of litigating the right to 
 refuse to carry except upon such contracts, and thus in 
 many cases they were enabled to protect themselves against 
 the legal consequences of the grossest negligence on their 
 part {b). 
 
 With the view of remedying the hardships thus occa- Remedy 
 sioned the Eailway and Canal Traffic Act was passed in ^"^ ^ 1 8 Vict. 
 1854(c). 
 
 That Act by the first six sections provides for enforcing Sections 1—6. 
 against these Companies the duty of making arrange- 
 ments for receiving and forwarding traffic of every de- 
 scription without delay and without partiality (d). 
 
 By the 7th section it enacts that every such Company Section 7. 
 *' shall be liable for the loss of or for any injury done to 
 any Horses, Cattle, or other animals, or to any articles 
 or goods," "in the receiving, forwa]:ding or delivering 
 
 (m) Story on Bailments, 549. {b) Carr v. Lancashire and York- 
 
 [x) Southcote^s case, 4 Kep. 83. shire Railway Co., 7 Ex. 707, and 
 
 {y) Morse v. Slue, 1 Vent. 2o8. cases there cited. 
 
 {z) See Judgment of Court of C. {c) 17 & 18 Vict. c. 31. 
 
 P., Austin V. Manchester, Sheffield (d) As to the construction to be 
 
 and Lincolnshire Hallway Co., 21 L. put upon these sections, see Brid- 
 
 J., C. P. 183. don V. Great Northern Railway Co., 
 
 (a) Carr v. Lancashire and York- 28 L. J., Ex. 51 ; Garten v. Bristol 
 
 shire Railway Co., 7 Ex. 707; Austin and Exeter Railway Co., 28 L. J., 
 
 V. Manchester, Sheffield and Lincoln- C. P. 30G ; also per Crowder, J., 
 
 shire Railway Co., 21 L. J., C. P. Nicholson v. Great Western Railway 
 
 183; Chippendale v. Lancashire and Co., 28 L. J., C. P. 89; and Ran- 
 
 Yorkshire Railway Co., 21 L. J., Q. some y. Eastern Counties Railway Co., 
 
 B. 22. 26 L. J., C. P. 91. 
 
270 CARRYING HORSES. 
 
 thereof," "occasioned by tlie neglect or default of such 
 company or its servants, notwithstanding any Notice, 
 Condition or Declaration made and given hij such Com- 
 pani/ contrary thereto, or in anyicise limiting such liabi- 
 lity ; every such Notice, Condition or Declaration made 
 and given, being thereby declared to be null and void; 
 provided always, that nothing herein contained shall be 
 construed to prevent the said Companies from making 
 such Conditions with respect to receiving, forwarding 
 and delivering of any of the said animals or goods that 
 shall be adjudged by the Court or Judge, before whom 
 the question relating thereto shall be tried, to be just 
 and reasonable ; provided always, that no greater damages 
 shall be recovered for the loss or for any injury done to 
 any such animals," beyond 50/. for any Horse, 15/. per 
 head for any Neat Cattle, and 2/. per head for Sheep or 
 Pigs : " unless the person sending or delivering the same 
 to such Companj^ shall, at the time of such delivery, have 
 declared them to be respectively of higher value than as 
 above mentioned, in which case it shall be lawful for such 
 Company to demand and receive by way of compensation 
 for the increased risk and care thereby occasioned, a 
 reasonable percentage upon the excess of the value so 
 declared above the respective sums so limited as aforesaid, 
 and which shall be paid in addition to the ordinary rate of 
 charge." 
 
 It is also provided by this section that such percentage 
 or increased rate of charge shall be publicly notified {e) ; 
 that the onus of proof of value and injury shall lie with 
 the person claiming compensation, and that " the Special 
 Contract shall be signed by him or the person delivering 
 the animals or goods for carriage." 
 Application The Act only extends to the traffic on a Company's own 
 
 of section 7. lines, and section 7 does not apply to a Contract exempting 
 a Company from liability for loss on a Railway not belong- 
 ing to or worked by the Company (/) . But where the Com- 
 pany contract to carry over their own as well as other 
 lines, they must prove that the loss did not occur on their 
 line, in order to avail themselves of a condition of non- 
 liability (r/). 
 
 ((•) According to the provisions Q. B. 209 ; 20 L. T., N". S. 873. 
 
 of the Carriers Act, 11 Geo. 4 & 1 (ff) Kent v. Midland Rail icay Co., 
 
 WiU. 4, 0. 68. L. R., 10 Q. B. 1 ; 44 L. J., Q. B. 
 
 (/) Zunz X. South Eastern Raihcaij IS; 31 L. T., N. S. 430. 
 Co., L. R, 4 Q. B. 539; 38 L. J.. 
 
CARRYING HORSES. 271 
 
 The principal points of difficulty in the construction of Construction 
 this ill-drawn and ambiguous section are those restrictions ^f section 7. 
 on the common law, which it appears to have been its 
 especial object to create. They are these : First, whether 
 General Notices given by such Companies are valid for 
 the purpose of limiting their Common Law liability as 
 Carriers ? Secondly, what, if any, distinction is to be drawn 
 between the words "Special Contract" and "Condition"? 
 And, thirdly, whether this Common Law liability may be 
 limited by such Conditions as the Court or Judge shall 
 determine to be just and reasonable ? And, moreover, if 
 this Common Law liability may be limited by such 
 Conditions as the Court or Judge shall determine to be 
 just and reasonable, it is important to consider what 
 Conditions have come within that definition. 
 
 Notwithstanding a great divergence of opinion among 
 the learned Judges, the construction to be put upon this 
 section, with especial regard to these points of difficulty, 
 has been defined with considerable exactitude by decisions, 
 which it will be necessary to give in some detail. 
 
 In the case of Peck v. TJie North Staffordshire Railway Peek v. KortJi 
 Compant/ (h), the w^hole law on this subject was reviewed ^iaffordslm-e 
 by the House of Lords, and in a great measure settled, paly"^^ 
 It is therefore unnecessary, with regard to those points 
 which it determined, to advert to the judicial decisions 
 which preceded it, and which exhibit considerable variances 
 of opinion. 
 
 The defendants in this case had issued a Notice, that 
 they would receive, forward and deliver goods solely sub- 
 ject to certain Conditions, one being, " That they would 
 not be responsible for the loss or injury to any marbles, 
 &c. unless declared or insured according to their value." 
 The plaintiff's forwarding agent had knowledge of this 
 Notice or Condition, and on the 1st of August, 1857, by 
 letter, directed the defendants to forward the goods in 
 question (three cases of marbles), '■^ not insured.''^ The 
 marbles sustained injury on the journey from wet im- 
 pregnated with the rust of the nails of the cases penetrating 
 through and discolouring the stone, and this action was 
 brought for the damage thus occasioned against the Com- 
 pany as Common Carriers. 
 
 By their fourth plea the Company pleaded under 17 & 18 
 
 [h) Peek V. North Slafforchlure Railway Co., 32 L. J., Q. B, 241 
 (Dom. Proc.) 
 
272 
 
 CARRYING HORSES. 
 
 General No- 
 tices invalid. 
 
 Condition 
 
 limiting 
 
 Liability. 
 
 "Condition" 
 and ' ' Special 
 Contract' ' 
 synonymous 
 terms. 
 
 Yict. c. 31, s. 7, that tlie marbles were delivered to be car- 
 ried by tbem subject to a certain Special Contract, whereby 
 it was agreed that they should not be responsible for the 
 loss of or injury to marbles unless declared and insured 
 according to their value, and that the same were not nor 
 was any part thereof so declared or insured ; and by their 
 fifth plea, that the marbles were delivered and received on 
 the above Condition ; that such Condition, made by the 
 defendants, and assented to by the plaintiff, was a just and 
 reasonable Condition. 
 
 It having been decided by the Exchequer Chamber (re- 
 versing the judgment of the Queen's Bench) that the de- 
 fendants were entitled to the verdict on these pleas, the 
 House of Lords reversed that decision, and affirmed the 
 judgment of the Court of Queen's Bench, holding that no 
 Greneral Notice given by a Railway Company is valid in 
 law for the purpose of limiting the Common Law liability 
 of the Company as Carriers ; but that such Common Law 
 liability may be limited by such Conditions as the Court or 
 Judge shall determine to be just and reasonable. 
 
 The majority of the Lords present were of opinion that 
 the Condition above cited was neither just nor reasonable, 
 as the effect of such a Condition would be to exempt the 
 Company from responsibility for injury however caused, 
 whether by their own negligence, or even by fraud or 
 dishonesty on the part of theii' servants ; and that the letter 
 of the 1st of August, 1857, did not constitute a Special 
 Contract in writing, the words " not insured " being in- 
 sufficient, either expressly or by reference, to embody the 
 Condition itself into the letter. 
 
 It was held also by the Lord Chancellor (Lord West- 
 bury) and by Lord Wensleydale, Lord Cranworth and 
 Lord Chelmsford dissenting, that the Conditions must be 
 embodied in a Special Contract in writing, to be signed 
 by the owner or person delivering the goods (?"). This 
 question therefore remains as decided by M^JIanns y. Lanca- 
 shire and YorJcs/iire Raihcay Company (/r), that in order to 
 give this section (/) its intended extent of remedy, it must 
 be construed, in accordance with the approved principle of 
 interpretation, with reference to the state of the law when 
 the Statute was passed. Before that time, every case in 
 which a special limited liability was substituted for the 
 
 (j) See also Lewis v. Great Western 
 Hailwai/ Co., L.R., 3Q.B.D. 195. 
 (A') M^Mainis v. Lancashire and 
 
 Yorkshire Raihcay Co. (Ex. Cli.) 
 4 H. & K 349. 
 
 (/) 17 & 18 Vict. c. 31, s. 7. 
 
CARRYING HORSES. 273 
 
 general Common Law obligation of the Carrier, whether 
 by Notice acquiesced in, or document signed by the cus- 
 tomer, was one of Special Contract. Therefore, the con- 
 struction to be put upon the words "Special Contract" in 
 the Act must date back to a state of the law, when a 
 Condition signed by the owner or his agent for delivering 
 the goods was held to be " a Special Contract," except 
 where expressly varied by the words of the Statute. 
 
 But a Railway Company cannot repudiate a Special Special con- 
 Contract on the around that it has not been signed by the ^'^^^^ bimiing 
 
 ji • • J ^ ^ !• i Oil company 
 
 consignor ; the proviso m sect. 7 only applies to cases without si^-- 
 
 where the company seek to relieve themselves from liability nature. 
 
 by reason of there being a Special Contract [in) . 
 
 Where an agent who is employed to deliver cattle to be Effect of 
 sent by a Railway Company signs the consignment note, A^ent*^^^ ^ 
 he must be taken to have known the contents, and thereby 
 binds his principal {)i). If a man who can read sends a 
 man who cannot read to sign a document or to enter into 
 a contract in which a document must to his knowledge be 
 signed, he cannot dispute his liability on the contract so 
 signed, on the ground that his agent could not read the 
 contents ; for in such a case the principal must be taken to 
 be in the same position as though he had signed it himself 
 without reading it (o) . 
 
 It was also decided, in the case of irManus v. Lancashire As to reason- 
 and Yorkshire Raihcay Compani/{p), that the 17 & 18 Vict. ^ou^tT 
 c. 31, s. 7, gave power to the Court or Judge trying the decide, 
 cause to decide upon the justice and reasonableness of Con- 
 ditions in a Special Contract for the carriage of animals or 
 goods on a Railway ; and the Court expressed their con- 
 currence with the opinion pronounced by Jervis, C. J., in 
 Simojis V. Great Western Railaru/ Company {q), that "the 
 Company may make Special Contracts with their cus- 
 tomers, provided they are just and reasonable, and signed ; 
 and that, whereas the monopoly created by Railways com- 
 pels the public to employ them in the conveyance of their 
 goods, the Legislature have thought fit to impose the 
 further security, that the Court shall see that the Condition 
 or Special Contract is just and reasonable." 
 
 (w) Baxendale v. Great Eastern {o) Foreman v. Great Western 
 
 Hailwai/ Co., L. R., 4 Q. B. 244; Raihcay Co., 38 L. T., N. S. 351. 
 38 L. J., Q. B. 137. {p) See note (/■:), ante. 
 
 («) Klrhij V. Great Western Rail- [q) Simons v. Great Western. Rail- 
 
 u-aii Co., 18 L. T., N. S. 658, per xauj Co., 26 L. J., C. P. 25. 
 Martin, B. 
 
 O. T 
 
274 
 
 CARHYTXG HORSES. 
 
 General effect 
 of these 
 decisions. 
 
 What Condi- 
 tions are just 
 and reason- 
 able, and 
 what not. 
 
 To be free 
 from all risks 
 in respect of 
 damage — 
 Cattle suffo- 
 cated. 
 
 Thus then the effect of the 7tli section of the Railway 
 and Canal Traffic Act {q) has been determined by the 
 foregoing decisions to be this: — First, to make Greneral 
 Notices given by Companies under this Statute, for the 
 purpose of limiting their Common Law liability as Car- 
 riers, invalid ; and, secondly, to make the words " Special 
 Contract " and " Condition " in the 7th section synony- 
 mous terms, to the extent of permitting the Common Law 
 liability of such Companies to be limited by such Condi- 
 tions, or such Special Contract, signed by the owner or 
 his agent for delivering the goods, as the Court or Judge 
 shall determine to be just and reasonable. 
 
 It is therefore important to consider what Conditions 
 have been held to be just and reasonable, and what have 
 been held not to be so. For no rule of universal applica- 
 tion can be laid down with respect to what is a mixed 
 question of law and fact, inasmuch as a reasonable Con- 
 dition may be applied to a state of facts which makes it 
 unreasonable {>•). 
 
 In the case of Pardiugfon v. Soidh Western Railicay 
 Comjxuvf (s), a person sending cattle by railway signed 
 a Contract containing the following amongst other Con- 
 dition : — " A pass for a drover to ride with his stock, 
 the Company is to be held free from all risks in respect 
 of any damages arising in the loading or unloading, from 
 suffocation or from being trampled upon, bruised, or 
 otherwise injured in transit, from fire, or from any other 
 cause whatsoever." A drover received a pass to go with 
 the cattle. The cattle were not put into proper cattle- 
 trucks, but into vans closing with lids ordinarily used 
 for the conveyance of salt, and this was done with the 
 consent, or, at all events, without any objection on the 
 part of the drover. The lid of one of the vans having 
 become closed in the course of the journey, several of 
 the cattle were suffocated. The drover travelled in the 
 same carriage with the Gruard, and did not get out during 
 the journey to look at the cattle. The Jury having 
 found that the cattle were suffocated dm-ing the transit, 
 Alderson, B , directed a verdict to be entered for the de- 
 fendants, giving leave to the plaintiffs to move to enter a 
 verdict for 135/. if the Court thought that the Conditions 
 were unreasonable. The Court refused a rule, and con- 
 
 {(]) 17 & 18 Vict. c. 31, s. 7. 
 
 (r) Per Martin, B., in Grcgor>j v. 
 West Midkuid Eailuat/ Co., 33 L. J., 
 Ex. 155. 
 
 (.s) Fardiiiffton y. South IVestcni 
 Raihmy Co., 1 H. & N. 392 ; and 
 see Wise v. Great Western Railway 
 Co., 1 H. & N. 63 ; 25 L. J., Ex. 258. 
 
CARRYING HORSES. 275 
 
 sidered that the drover had the means of knowhig whether 
 the cattle could travel safely in the carriage provided for 
 them, and that the Condition was a reasonable one. 
 
 In the case of M'JIaiiiis v. Lancashire and Yorkshire To be free 
 Railicaij Company (t), a Horse was placed by defendants' of°Conve^^-^^^ 
 servants in a truck which was insufficient and unsound, ance— Horse 
 and the Horse put its foot through a hole in the floor, and injured by 
 was injured ; and the question of liability on the contract J^^rudT^*^ 
 turned upon the reasonableness or unreasonableness of the 
 following Condition : — This ticket is issued, subject to the 
 owner's undertaking " all risks of conveyance, loading 
 and unloading whatsoever, as the Company will not be 
 responsible for any injury or damage (however caused) 
 occurring to live stock of any description travelling upon 
 the Lancashire and Yorkshire Railway, or in their 
 vehicles." This Condition was held to be neither just 
 nor reasonable, and Williams, J., in delivering the judg- 
 ment of the Court, said : "In order to bring the de- 
 fendants within the protection of the Special Contract, it 
 is necessary to construe it as excluding responsibility for 
 loss occassioned not only by all risks, of whatever kind, 
 directly incident to the transit, but also for that caused by 
 the insufficiency of the carriages provided by the de- 
 fendants, thougli occasioned by their own negligence or 
 misconduct. The sufficiency or insufficiency of the vehicles 
 by which the Company are to carry on their business is a 
 matter, generally speaking, which they, and they alone, 
 have, or ought to have, the means of fully ascertaining. 
 And it would, we think, not only be unreasonable, but 
 mischievous, if they were to be allowed to absolve them- 
 selves from the consequences- of neglecting to perform 
 properly that which seems naturally to belong to them as 
 a duty. It is unreasonable that the Company should 
 stipulate for exemption from liabilitj'' from the conse- 
 quence of their own negligence however gross, or mis- 
 conduct however flagrant ; and that is what the Condition 
 •under consideration professes to do. That Condition is 
 therefore void ; and the case stands simply upon the 
 ground that the plaintiif has employed the defendants to 
 carry his Horses safely, and that they have used an in- 
 sufficient and improper vehicle for that purpose, whereby 
 the Horses have been injured." 
 
 (t) HP Manns v. Lancasliirc and Yorksliire Eaihvay Co, (Ex. Ch.), 4 II. & 
 N 349. 
 
 t2 
 
2:6 
 
 CARRYING HORSES. 
 
 Owner's risk 
 at lower rate. 
 
 Condition as 
 to time "with- 
 in "which loss 
 should be de- 
 clared to 
 create claim. 
 
 Condition as 
 to Special 
 Rate. 
 
 As to pack- 
 age insuffici- 
 ently packed. 
 
 As to non- 
 liability for 
 Loss of Mar- 
 ket as to Fish. 
 
 As to Cheese. 
 
 But where A. knew that there was a certain rate for 
 carrying Horses on a railway by passenger train, and in 
 horse-boxes, and that there was a lower rate for carrying 
 them by goods train, and in waggons ; it was held that it 
 was a reasonable condition of the contract for conveyance 
 that the Horses should be carried entirely at the owner's 
 risk, and that such condition would protect the railway 
 company if the Horses were injured on the journey, but 
 would not protect them from the consequences of delay 
 where the contract was to deliver in a reasonable time (?<). 
 
 Conditions protecting the Company against claims for 
 loss unless made within seven days from the time at which 
 the goods should have been delivered, and against liability 
 for the loss of goods untruly or incorrectly declared or 
 described by the sender are reasonable, and binding (x). 
 
 A Condition that a Railway Company should not be re- 
 sponsible for loss or damage for any cause whatsoever to 
 goods conveyed (it a special or mileage rate, is reasonable. 
 
 A Condition that a Company should not be liable for 
 the loss, detention or damage of any package insufficiently 
 packed, is unreasonable (//) . 
 
 In Bcal V. SoutJi Devon Railicaij Compani/ (z), the Company 
 gave notice that they would only convey fish on their line 
 by special agreement, and the Condition in question pro- 
 vided that the Company should not be responsible under 
 any circumstances for Loss of Market, or for other loss 
 or injury, from any cause whatsoever, other than gross 
 negligence or fraud ; and this condition was held to be 
 reasonable, dissentiente Martin. B. 
 
 In the case of White v. Great Western Raihcaij Com- 
 'pa)nj [a), in which the plaintiff delivered a quantity of 
 cheese at a station of the defendants' Railway for a parti- 
 cular market, and the cheese was delayed in delivery, and 
 thus lost a market, it was held that a Condition that " the 
 
 ((/) Si»ions Y. Great Western Eail- 
 u-ay Co., 26 L. J., C. P. 25. 
 
 {z) Beat V. South Devon Railway 
 Co., 5 H. & N. 875. See also 
 AUdaij V. Great Western Railway 
 Co., 3t L. J., Q. B. 5, post. 
 
 {a) White v. Great Western Rail- 
 way Co., 26 L. J., C. P. 158 ; and 
 see cases there cited, and Alhlay v. 
 Gt-eat irestcrn Railway Co., 31 L. J., 
 Q. B. 5, post. See also Lord v. 
 jMidlaml Railway Co., L. E., 2 C. 
 P. 339. 
 
 («) Robinson v. Great Western 
 Railway Co., 35 L. J., C. P. 123 ; 
 H. & E.. 97 ; see also D'Arc v. 
 London and North Western Railway 
 Co., L. R., 9 C. P. 325; 30 L. T., 
 N. S. 763. See also Harris v. Mid- 
 land Railway Co., 25 W. E. 63— 
 D. C. A. ; &ndi Lewis v. Great West- 
 ern Railway Co., L. E., 3 Q. B. D. 
 195; 47L. J.,Q. B. 131; 37L. T., 
 N.S. 774. PerBrett, L. J., L.E., 
 3 Q. B. D. 209. 
 
 (.(,■) Lewis V. Great Western Rail- 
 way Co., 5 H. & N. 867. 
 
CARRYING HORSES. 277 
 
 Company will not under any circumstances be liable for 
 Loss of Market, or any other claim arising from delay or 
 detention of any train, whether at starting, or at any of 
 the stations, or in the course of the journey," was not an 
 unreasonable one. 
 
 In the case of Alldai/ v. Great Western Railarty Com- As to Loss of 
 pnnij {b), the plaintiff delivered some beasts to the Station- M:arket cou- 
 Master at Oxford, with directions to send them to Binning- ?< injury" to 
 ham, for the market there, and signed a ticket, containing Cattle, 
 certain Conditions, and amongst others that the defendants 
 were " not to be answerable for any consequences arising 
 from overcarriage, detention or delay in, or in relation to 
 the conveying or delivery of the said animals, however 
 caused." The Company have two stations at Birmingham, 
 one at Bordesley, for the cattle from Oxford and places 
 south of Birmingham, and the other at Hockley, north of 
 Birmingham, which would not be the proper station for 
 the plaintiff's cattle to be sent to. The plaintiff made in- 
 quiries for them the next morning at the Bordesley Station, 
 but inasmuch as they had been carried to the Hockley 
 Station, he did not get them till the middle of the day. 
 The proper time for him to have received them would have 
 been early in the morning, and at the Bordesley Station. 
 By reason of the delay which took place he lost the market ; 
 and in addition it was proved that the cattle had become 
 injured by having been kept in the trucks without food or 
 water. The defendants refused to make any compensa- 
 tion, and contended that they were protected by the Con- 
 ditions of the ticket above specified, and that they were 
 therefore not liable in respect of overcarriage. It was held 
 however by the Court of Queen's Bench that the cattle 
 were "injured" within the meaning of the statute, and 
 also that the Condition in the ticket was unreasonable. 
 And Cockbrn-n, C. J., said, "It is admitted that there had 
 been loss of condition to the cattle, and it is clear that that 
 amounts to ' injury' within the meaning of the 7th section. 
 I am also of opinion that the Condition expressed in the 
 ticket is unreasonable. The defendants claim complete 
 immunity from liability in respect of all delay, overcar- 
 riage, &c. They talk of reduced rates, but there is no 
 proof that they charged the plaintiff anything less than 
 the ordinary rates of charge. It might perhaps be reason- 
 able, if they had given the plaintiff the choice of two 
 
 (i) Alldai/ V. Great Western Railwaij Co., 34 L. J., Q. B. 5. 
 
278 
 
 CAHRYING HORSES. 
 
 Condition as 
 to value 
 conplcd with 
 unreasonable 
 rate. 
 
 classes of rates, and had made a Special Contract limiting 
 their liability in consideration of the lesser rate being 
 charged. But no such thing has been done here." And 
 Mr. Justice Cronipton said, " I am of the same opinion. 
 It is clear that the cattle sustained injury by reason of the 
 conduct of the defendants. It is also clear that the Condi- 
 tion is an unreasonable one ; it was compulsory upon the 
 plaintiff, no option being given to him, and the defendants 
 cannot in such a manner protect themselves from liability." 
 In these judgments Mr. Justice Mellor and Mr. Justice 
 Shee concm^red. It is important to observe in this case, 
 that the " injmy " to the cattle is the only damage adverted 
 to by the learned Judges, so it may be inferred, in accord- 
 ance with former decisions (c), that the Loss of Market 
 alone would not have entitled the defendants to compen- 
 sation. 
 
 In Harrison v. London, Brighton and South Coast 
 liaihcay Comjxmy (d), the following Condition was called 
 in question : — " The Company will not be liable in any 
 case for loss or damage to any Horse or other animal 
 above the value of 40/., or any dog above the value of 51., 
 unless a declaration of its value, signed by the owner, or 
 his agent, at the time of booking, shall have been given to 
 them ; and by such declaration the owner shall be bound, 
 the Company not being in any event liable to any greater 
 amount than the value declared. The Company will in 
 no case be liable for injmy to any Horse or other animal, 
 or dog, of whatever value, where such injury arises wholly 
 or partially from fear or restiveness. If the declared value 
 of any Horse or other animal exceed 40/., or any dog 5/., 
 the price of conveyance will, in addition to the regular 
 fare, be after the rate of Two and a half per cent, upon 
 the declared value of above 40/., whatever may be the 
 amount of such value, and for wliatever distance the 
 animal is to be carried." In this case the plaintiff de- 
 livered to the defendants a dog to be carried, and signed a 
 ticket with this Condition annexed. The value of the 
 dog was 21/., but the plaintiff made no declaration of its 
 value, and paid only the regular fare, Ss. The dog 
 escaped from the train during the journey, and was lost, 
 without any negligence on the part of the defendants. 
 
 {<■) Beal V. South JDcron MaUway 
 Co., 5 H. & N. 875, ante; llliitcv. 
 Great Western Railway Co., 26 L. J., 
 C. r. 158, ante. 
 
 {(l) Harruon v. London, BrUjliton 
 and South Coast Ilailwai/ Co., 29 L. 
 J., Q. B. 209. 
 
CARUYING HOUSES. 279 
 
 The plaintiff having sued the defendants for the loss, it 
 was held by the majority of the Court of Exchequer: 
 first, that the meaning of this ticket, the whole of which 
 must be read together, was, that if the value of a dog was 
 above 5/., and its value was not declared, and the extra 
 price paid accordingl}^, the defendants would not be liable 
 at all, even for loss or injury caused by their own negligence, 
 and that the Condition was therefore within 17 & 18 Vict, 
 c. 31, s. 7 ; secondly, that this Condition was not just and 
 reasonable, inasmuch as the extra charge of Two and a 
 half 2^er cent, (without proof to the contrary, which it lay 
 on the defendants to give) appeared excessive and un- 
 reasonable ; and, thirdly, that the Condition being void, 
 the plaintiff, although there was no negligence on the 
 part of the defendants, was entitled to recover the full 
 value of the dog against them as Common Carriers. 
 
 The judgment in this case was reversed in the Ex- 
 chequer Chamber {e), and, as reversed, was the subject of 
 some discussion in As/iendon v. T/ie London, BrigJdon and 
 Soiif/i Coast Railicaij {/), where it was held that a Condition 
 that a Railway Company will not be liable " in any case " 
 for loss or damage to a Horse or dog above certain 
 specified values delivered to them for carriage, unless the 
 value is declared, is not reasonable, as it is in its terms 
 unconditional, and would, if valid, protect the Company 
 even in case of the negligence or wilful misconduct of their 
 servants ; and the Court further gave its opinion that the 
 judgment of the Exchequer Chamber was in effect over- 
 ruled by Peek v. Nortli Staffordshire Raibmij Compani/ (rj). 
 
 But where the Condition as to an increased rate for Where value 
 increased value is not objectionable on the ground of "^'^*^„^^^ *^' 
 excess or otherwise, a wilfully false statement as to the 
 value of a Horse to be conveyed made by the plaintiff in 
 order that it might be conveyed at the lower rate will 
 disentitle him from recovering in damages, if it is injured, 
 upon any other value than that which was falsely declared 
 to be its real value (//). 
 
 In the case of Gregory v. West Midland Railicay Com- Condition as 
 pany (i), a cow and a heifer had been placed by the defen- *° ^T^^vit 
 dants' servants without halters in a sheep or calf truck 
 
 {(■) 31 L. J., Q. B. 113. (It) M'Cancc v. T.oiirlon and XortJi 
 
 (/) L. R., 5 Ex. D. 190 ; 42 L. Western Railway Co., 31 L. J., 
 T., N. S. 586. Ex. 39. 
 
 {;/) Ante, p. 271. (i) Grcgori/ v. IFcst 3Iidland Rail- 
 
 tvaij Co., 33 L. J., Ex. 155. 
 
280 
 
 CARRYING HORSES. 
 
 Condition as 
 to non-liabi- 
 lity beyond 
 their own 
 limits. 
 
 without rails, and during the journey the cow fell or 
 jumped out of the truck, and was injured. An action was 
 brought for the damage thus occasioned, and the Company 
 relied upon the Special Contract made by them with the 
 plaintiff, among the Conditions of which were these : — 
 That "the Company are to be free from all risk and 
 responsibility with respect to any loss or damage arising in 
 the loading or unloading, or injury in the transit from 
 any cause whatever, it being agreed that the animals are 
 to be carried at the owner's risk, and that the owner of the 
 cattle is to see to the efficiency of the waggon, before his 
 stock is placed therein ; complaints to be made in writing 
 to the Company's officer before the waggon leaves the 
 Station." In accordance with the decision of the Exchequer 
 Chamber in M'Mcnuis v. T//e Lancashire and Yorlishire 
 JRaUicay Company i^j), these Conditions were held to be 
 neither just nor reasonable. 
 
 In Roofh V. The North Eastern Raihcai/ Company (/<•), a 
 Contract for the conveyance of cattle by railway, signed by 
 the party sending them, contained the two following, 
 amongst other, Conditions : — " The owner undertakes all 
 risks of loading, unloading and carriage, whether arising 
 from the negligence or default of the Company or their 
 servants, or from defect or imperfection in the station, 
 platform or other places of loading or unloading, or of the 
 carriage in which the cattle may be loaded or conveyed, or 
 fi'om any other cause whatsoever." " The Company will 
 grant fi'ee passes to persons having the care of live stock, 
 as an inducement to owners to send proper persons with 
 and to take care of them:" — It was held that the first 
 of these Conditions was unreasonable, and that its un- 
 reasonable character was not removed by the fact that the 
 Company, under the second condition, granted, and the 
 o^Tier accepted, a fi^ee passage for a person who travelled 
 with the cattle sent. 
 
 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 joui-ney, whether they themselves carry it 
 all 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 
 
 [j) M'Ma)ins v. Lancashire and 
 Yorkshire Eaihcay Co. (Ex. Ch.) 
 4 H. & N. 327. See also Tceh v. 
 North Staffordshire Eaihvay Co., 32 
 
 L. J., Q. B. 241, ante, p. 271. 
 (/.) L. E., 2 Ex. 173; 3C L. 
 Ex. 83. 
 
 J., 
 
CARRYING HORSES. 281 
 
 determined (/). But a Company (whieli is within tlio 
 Railway and Canal Traffic Act) may divest itself of this 
 responsibility for goods beyond its own limits, as the 
 following Conditions have been held to be just and reason- 
 able, viz., that "in respect of goods destined for places 
 beyond the limits of the Company's railway, the Company's 
 responsibility will cease when such goods shall have been 
 delivered over to another Carrier in the usual course for 
 another conveyance." And " that any money, which may 
 be received by the Company as payment for the convey- 
 ance of goods beyond their own limits, will be so received 
 for the convenience of the Consignors, and for the purpose 
 of being paid to the other Carrier " {iii). 
 
 If a Railway Company puts two Conditions into their If part of 
 carrying clause, one of whicli is unreasonable, they may special con- 
 rely upon the other, which is reasonable. So, too, if part go'nable such 
 of a Condition, which is severable from the rest of it, is part may be 
 reasonable (yj). relied on. 
 
 It has been said that the principle deducible from the Alternative 
 authorities is, that a contract, j^vimd facie unreasonable, Kates, 
 becomes reasonable if an alternative rate is offered to the 
 customer, i. e., if the company have two rates, at one of 
 which, the higher, it undertakes the ordinary risk of a 
 carrier, while at the other, the reduced rate, it carries upon 
 condition of being relieved from that risk(o). But the 
 f>rinciple w^ould not be applied in a case where the higher 
 rate is excessive, and the Court of Common Pleas refused 
 to apply it to a case where wax- work was carried "at 
 owner's risk" {p). 
 
 But it seems that it would apply where the expression 
 " at owner's risk" is modified by an exception of the wilful 
 misconduct of the defendants' servants [q). 
 
 Where alternative rates are charged for the conveyance 
 of cattle or goods, the lower rate being at owner's risk, 
 a 2)riori the higher rate, if within the parliamentary limit, 
 
 (/) Muschamp v. Lancaster and see also Hodges on Railways, 6tli 
 
 Preston Junction Eailway Co., 8 M. ed. 598. 
 
 & W. 421 ; Watson v. Anibcrgatc, {]}) B'' Arc v. London and North 
 
 Nottingham and Boston liallicaij Co., Western Railwaii Co., L. R., 9 C. P. 
 
 15 Jur. 448. 325 ; 30 L. T.,'N. S. 763 ; and see 
 
 («i) Aldridge v. Great Western Itobii/son v. Great Western Railuay 
 
 Railway Co., 33 L. J., C. P. 161. Co., 35 L. J., C. P. 123. 
 
 («) M'Cance v. London and North [q) Leivis v. Great Western Rail- 
 Western Raihva>/ Co., 7 H. &N. i'7. u-ay Co., L. R., 3 Q. B. D. 195, 
 
 ['j) Gallagher v. Great Western 200; 47 L. J., Q. B. 131 ; 37L. T., 
 
 Railway Co., Ir. R., 8 C. L. 326 ; N. S. 774. 
 
282 CARRYING HORSES. 
 
 is not necessarily unreasonable or prohibitory (>•). It is a 
 question for the jury whether the higher rate is unreason- 
 able in the sense that it is so high as to be prohibitory ; 
 and the mere fact that the lower rate is so low that cattle 
 dealers invariably avail themselves of it is not, standing 
 alone, evidence that the higher rate is unreasonable or 
 prohibitory (.s). 
 What is wilful When a Railway Company agrees to carry, at a re- 
 misconduct. ducccl rate, upon condition of being relieved from the 
 ordinary liability for negligence, and to be responsible 
 only for the consequences of the wilful misconduct of 
 their servants, it will be for the plaintiff, in an action 
 for injury to the goods carried, to prove more than culpable 
 negligence. There must be evidence of actual wilful mis- 
 conduct causing the injury (/). Thus, where a Railway 
 Company contracted with the plaintiff to carry a van at 
 a reduced rate, on the terms that the Company should not 
 be liable for damage or delay, except sucli as was occasioned 
 by wilful misconduct on the part of its servants ; and the van 
 was to be delivered at a station outside the Company's 
 system, and on the line of another Company ; and a delay 
 was occasioned by the van having been loaded on a truck 
 which was too high to allow of its passing under the other 
 Company's gauge, although it passed under that of the 
 Company ; it was held that there was not sufficient evi- 
 dence of wilful misconduct on the part of the Company's 
 servants to go to a Jury, inasmuch as it was not proved 
 that they knew that the truck was too high to carry the 
 van under the other Company's bridge {m). But where a 
 Railway Company had carried goods from one of its 
 stations to another, and the station master at the place to 
 which they were carried, without making inquiries of the 
 Consignor, after a delay of a week, delivered the goods to 
 a person of a very similar name to that of the person 
 named as Consignee ; and the Contract of Carriage was at 
 a reduced tariif, conditioned to exclude all liability ex- 
 cept for wilful misconduct ; the delivery of the goods was 
 held to amount to wilful misconduct {x). 
 
 {>•) Foreman v. Great Western way Co., 26 W. E,. 111. See also 
 
 Itailicay Co., 38 L. T., N. S. 851. Lewis y. Great Western Rail a-ny Co., 
 
 («) Ibid. L. R., 3 Q. B. D. 195; 47 L. J., 
 
 \t) Great Western Jlaiticai/ Co. v. Q. B. 131. 
 G/e/iister, 29 L. T., N. S. 422 ; 22 (r) Jloare v. Great Western Rall- 
 
 W. R. 72 vay Co., 37 L. T., N. S. 18G ; 25 
 
 {ii) Webb V. Great Western Rail- W. R. 63. 
 
CARRYING HORSES. 283 
 
 The onus of proving that a Condition is reasonable, lies Onus of proof. 
 upon the Company {y) . 
 
 It will have been seen by a consideration of the eases General effect 
 that the reasonableness or unreasonableness of a Condition ^f *^^ ^^^^' 
 depends upon the nature of the articles to be conveyed, the Conditions, 
 degree of risk attendant upon their conveyance, the rate of 
 charge made, and all the circumstances of each particular 
 case {z). 
 
 Very slight evidence of non-delivery is sufficient to call Delivery by 
 upon the defendant to prove delivery {a). If the carrier ^^^■^^<^'-'- 
 deliver the goods at the place directed in accordance with 
 the ordinary usage, he has fulfilled his obligation, although 
 he has delivered them to a person the sender did not 
 intend (b). Where cattle sent by railway were kept at the 
 arrival station with the sanction of the plaintiff's servant, 
 until they could be removed according to the police 
 regulations, it was held that the liability of the Railway 
 Company as carriers had ceased when the alleged loss and 
 damages occurred (c). 
 
 There is no general rule of law requiring Carriers to Notice of 
 give notice to the Consignor of the refusal of the Con- Consignee's 
 signee to receive goods, but Carriers are merely bound to Consignor, 
 do what is reasonable, under the particular circumstances 
 of each case (r/). However, Bramwell, B., said in the case 
 of Hudson V. Baxendalc {d), that "the judgment of the 
 majority of the Court" (from which however he dissented) 
 " in Crouch v. Great Western RaUu-ay Cojnpany (e) seemed 
 to show that it was the duty of the Carrier to communicate 
 with the Consignor." 
 
 If the Consignee makes default in receiving the goods Effect of 
 the Carrier is entitled to recover from him the expenses consignee's 
 reasonably incurred in taking care of the goods. A person ^^ ^^'^ " 
 sent a Horse by railway, consigned to himself at a station 
 on the line, and paid the fare. When the Horse arrived 
 at the station there was no one on his behalf to receive it, 
 and the Railway Company therefore placed it with a 
 livery stable-keeper ; and it was held that the Company 
 
 (y) Harrison v. London, Brighton 6 Ex. 36; 40 L. J., Ex. 30 ; 24 L. 
 
 a7id South Coast Railwaij Co., 29 L. T., N. S. 559. 
 J., Q. B. 209. [c) Shepherd y. Bristol and Exettr 
 
 (=) See Addison on Torts, 2nd Railivar/ Co., L. R., 3 Ex. 189 ; 37 
 
 ed. p. 403. L. J., Ex. 113. 
 
 {a) Griffiths V. Lee, 1 C. & P. 1 10 ; {d) Hudson v. Baxcndalc, 27 L. J. , 
 
 llaukes v. Smith, Car. & M. 72 ; Ex. 93. 
 Eoscoe, N. P., 14th ed. 585. («) Crouch v. Great Western Rail- 
 
 {')) M'Kcan v. M'lvcr, L. E., ivay Co., 26 L. J., Ex. 418, 
 
284 
 
 CARRYING HORSES. 
 
 Compensa- 
 tion paid 
 erroneously 
 to Consignor 
 no answer to 
 action by 
 Consignee. 
 
 Liability of 
 Company 
 ■when acci- 
 dent happens 
 to a Horse in 
 their yard. 
 
 Opinion of 
 Coekbiu'n, 
 C.J. 
 
 could recover from tlie owner of the Horse the reasonable 
 charges which it had paid to the stable-keeper (/). 
 
 After goods have been refused at the Consignee's address, 
 the Carrier becomes an involuntary bailee, and is only 
 bound to act with due and reasonable care and diligence (g). 
 
 It is no answer to an action against Carriers by the 
 owner of goods lost (who was the Consignee), that the 
 Consignor, after the loss of the goods, claimed compen- 
 sation, and that the Carriers, without notice, and believing 
 him to be the owner, paid compensation to him {/>). 
 
 In a case (?) in which the plaintiff sent a Horse of 
 great value to the yard of the defendant's Railway Station 
 at Worcester, for the purpose of its being carried by their 
 Railway : by the direction of a servant of the Company, 
 the plaintiff's groom was leading the Horse to the plat- 
 form, when it was startled by another Horse, and backed 
 upon some sharp iron girders lying on the spot, receiving 
 such an injury that it was necessary to kill it. No 
 declaration of value had been made, nor had any ticket 
 been taken or fare demanded ; the usual practice at that 
 Station being to put the Horse into the box, in which it 
 was to be conveyed in the first instance. The Jury found 
 that the defendants were guilty of negligence in putting 
 the girders where they were, and that there was no 
 negligence on the part of the groom, and found a verdict 
 for the plaintiif for 1,000/. A rule was subsequently 
 obtained, pursuant to leave reserved, calling upon the 
 plaintiff to show cause why the damages should not be 
 reduced to 50/., on the ground that the plaintiff's right to 
 recover was limited to that sum by 17 & 18 Vict. c. 31, 
 s. 7. The Court differed in opinion, but it was held by 
 the majority that the rule should be made absolute to 
 reduce the damages to 50/. 
 
 It was held by Cockburn, C. J., who dissented from 
 this judgment, that as the negligence complained of was 
 not the negligence of the defendants in their character of 
 Carriers, they were not entitled to the protection of this 
 section ; secondly, if they would have otherwise been 
 entitled to the protection, there was no evidence of their 
 having notified the increase rate of charge as required 
 
 (/■) Great Korthern Railway Co. 
 V. SwafficM, L. R., 9 Ex. 132; 43 
 L.J.,Ex. 89; 30L. T., N. S. 562. 
 
 {g) Heugli v. London and North 
 Western Railway Co., L. R., 5 Ex. 
 51 ; 39 L. J., Ex. 48; 21 L. T., 
 
 N. S. 676. 
 
 [h) Coombs v. Bristol and Exeter 
 Railway Co., 27 L. J., Ex. 269. 
 
 (;') Hodgman v. West Midland 
 Railway Co., 33 L. J., Q. B. 233. 
 
CARRYING HORSES. ' 285 
 
 by the section ; and thirdly, therefore, on both grounds, 
 the plaintiff was entitled to recover the full value of the 
 Horse. 
 
 Mr. Justice Mellor was of opinion that the provision of Mellor, J. 
 in the section applied not only to the risks of carriage and 
 conveyance, but also to those which attend the receiving 
 and delivery ; that the injury was done in receiving the 
 Horse ; and therefore, that as there was no declaration of 
 value, the plaintiff could not recover more than the 50/. 
 
 It was held by Mr. Justice Blackburn, that the Statute of Black- 
 is not confined to neglects and defaults after the relation t)iirn, J. 
 of Carrier and Customer has been completely established, 
 and that the real value above 50/. cannot be recovered 
 unless the declaration is made before the injury happens, 
 though it happen before the receipt by the liailway Com- 
 pany is complete. 
 
 The mere casual knowledge of a Railway Company of Declaration 
 the excess in value of a Horse sent to be carried, derived °^ ^'^^^^ under 
 from a letter of the sender to their Traffic Manager, does ^ 3^ g -j^^ 
 not entitle them to refuse to carry it, except at the 
 increased percentage of charge (/.•). 
 
 A Railway Company is not responsible for the non- Non-com- 
 delivery of live stock, where the owner has, in defiance of pliance with 
 the known com-se of business of the Company, permitted ^_ ^'^^^ ^^ *° 
 them to be delivered at one of the Company's Stations ^^°^^P * 
 without an acknowledgment from the proper Officer of 
 their receipt for the purpose of their being carried, although 
 they are proved to have been delivered to an Officer in the 
 Company's employ (/). 
 
 Where one railway company undertakes to carry goods Througli car- 
 from a station on their railway to a place on another distinct ^iage on rail- 
 railway, with which it communicates, this is evidence of a ^'^^^' "^^^* 
 contract with them for the whole distance, and the other liable, 
 company will be regarded simply as their agents (ni). 
 But the first company might by a special contract restrain 
 their liability to the limits of their own rail, where they 
 expressly act as agents for the other company (>;). And 
 the question as to which company is liable will depend on 
 the terms of the special contract in each individual case. 
 
 ik) Robinson v. South Western Railway Co., SM.. kW. '^21 ; ZH. 
 
 i?«;7iTOyCo.,C.P.Banc. May, 1865; & C. 771 ; 4 H. & C. 582, Exch. 
 
 19 C. B., N. S. 51 ; 34L.J., C. P. Ch. 
 
 234. («) Fowles \. Great Western Rail- 
 
 {I) Slim V. Great Northern Rail- way Co., 22 L. J., Ex. 76; 7 Exch. 
 
 u-ay Co., 14 C. B. 647. 699; and see Roscoe, N. P., 14th 
 
 («() Muschamp v. Lancaster, ^c. ed. 572. 
 
Rail. Co. 
 
 286 CAHRYING HORSES. 
 
 Thus, in Coxon v. Great Western Raihcay Compan!/ {o), 
 the plaintiff delivered cattle at a station of the Shrews- 
 bury and Hereford Railway Company, to be conveyed to 
 Birmingham, and signed a contract-note with that com- 
 pany, one of the terms of which was, that the company 
 would not be subject to liability for any damage arising 
 on other railways. The cattle were placed on a truck of 
 the defendants lying at the station, and were conveyed in 
 it along the Shrewsbury and Hereford Railway to Shrews- 
 bury, and then on the defendants' line to Birmingham. 
 Between Shrewsbury and Birmiogham the cattle were 
 injured by the floor of the truck giving way ; and it was 
 held that, as the contract of carriage was with the Shrews- 
 bury and Hereford Company for the entire journey, the 
 defendants were not liable. 
 Criily. Man- In Gill V. Manchester, Sheffield and Lincolnshire Raihcaij 
 chesie>'^ ^r. Company ( p) , the Great Northern Railway Company and 
 the Manchester Railway Company had agreed that a 
 complete and full system of interchange of traffic should 
 be established from all parts of one company and beyond 
 its limits, to all parts of the other company and beyond its 
 limits, with through tickets, through rates and invoices, 
 and interchange of stock at junctions, the stock of the two 
 companies being treated as one stock. The agreement 
 provided for the division of the traffic. The plaintiff, 
 wishing to send a cow from Doncaster to Sheffield, went 
 to the station of the Grreat Northern Railway Company at 
 Doncaster and booked her- for Sheffield by the Manchester 
 line. He signed a contract, by which it was agreed that 
 the cow was to be conveyed upon certain conditions, one 
 of which was as follows : — " The Grreat Northern Railway 
 Company gives notice that they convey Horses, Cattle, 
 Sheep, Pigs and other live stock in waggons, subject to 
 the following condition : That they will not be respon- 
 sible for any loss or injury to any Horse, Cattle, Sheep, or 
 other animal, in the receiving, forwarding or delivering, if 
 such damage be occasioned by the kicking, plunging or 
 restiveness of the animal." The cow was put into a truck 
 belonging to the Manchester Railway Company, and was 
 conveyed to Sheffield, where their servant, who was in 
 charge of the yard or loading place, let her out of the 
 truck, although he was cautioned by the plaintiff not to 
 
 (o) 29 L. J., Ex. 1G5 ; 5 H. & (;j) L. R., 8 Q. B. 186; 42 L. J., 
 
 N. 274. Q. B. 89 ; 28 L. T., N. S. 587. 
 
CARRYING HORSES. 287 
 
 do SO at that time. The cow rushed out of the truck, 
 and, after running about the yard, got upon the line and 
 was killed. It was held that the Grreat Northern Railway 
 Company was the agent of the Manchester Railway 
 Company to make the contract for the carriage of the 
 cow, and that, as the Manchester Railway was not pro- 
 tected by the condition above set out, an action was 
 maintainable against them. 
 
 In Co)nhe v. London and South Western Baitnrii/ Co. (q), Combe y. ion- 
 the plaintiff sent off some Horses from Wadhurst, a ^" ^"'^ ^°"^^ 
 
 , ,• r^ ■) ^• • Tx 1 T 1 • Western Mail. 
 
 station on one Company s ime, m Horse-boxes belongmg co. 
 to that Company in charge of a groom, who was to take 
 them to Farnham, a station on the defendants' line. At 
 Gruildford was the junction with the defendants' railway, 
 where it was necessary to book again, and whence there 
 are two routes to Farnham. The groom, on going to take 
 tickets, was told, in answer to his inquiries, that the train 
 direct to Farnham did not go for some hours, but that by 
 paying a little higher fare, he could go on by a train 
 which was about to start immediately, and went round a 
 longer way. He said he would go on at once, and he 
 and the Horses proceeded in the same trucks in which 
 they had come from Wadhurst. At Farnham two porters 
 came to unload the trucks, and the groom told them of the 
 danger of an accident arising from a wide space between 
 the flap and the body of the Horse-box, and how at 
 Wadhurst it had been stopped up for the Horses to be put 
 in. They accordingly tried to stop it up with straw, while 
 the groom kept the Horses quiet inside. When done they 
 said " all right," and he then led out the Mare, her Foal 
 following. The latter put its foot through the opening and 
 broke its leg. It was held that the Company were bound 
 to provide a truck reasonably fit for the conveyance of the 
 plaintiff's Horses, and there was evidence that this was 
 unfit, and that the defendants had adopted it from the 
 other Company at Gruildford, and, by sending it on to Farn- 
 ham, became liable for an accident caused by its defects. 
 
 The Regulation of Railways Act, 1868 (31 & 32 Vict. Througli car- 
 c. 119), Part II., sect. 14, provides that where a Company, "yf^ilway^^ 
 by through booking, contracts to carry any animals, luggage and partly by 
 or goods from place to place, partly by railway and partly sea. Eegula- 
 by sea, or partly by canal and partly by sea, a Condition ^aYs^AdT^^" 
 exempting the Company from liability for any loss or 1868. 
 
 {(j) 31 L. T., N. S. G13. 
 
288 
 
 CARRYING HORSES. 
 
 Company to 
 furnish par- 
 ticulars of 
 char ores. 
 
 Regulation of 
 Eailwaj-sAct, 
 1871. 
 
 damage wliicli may arise during the carriage of sucli 
 animals, &c. by sea, from the act of Grod, the king's enemies, 
 fire, accidents from machinery, boilers and steam, and all 
 and every other dangers and accidents of the seas, rivers 
 and navigations, of whatever nature and kind soever, shall, 
 if published in a conspicuous manner in the office where 
 such through booking is effected, and if printed in a 
 legible manner on the receipt or freight note which the 
 Company gives for such animals, &c., be valid as part of 
 the contract between the consignor of such animals, &c. and 
 the Company, in the same manner as if the Company had 
 signed and delivered to the consignor a bill of lading 
 containing such Condition. For the purpose of this section, 
 the word "Company" includes the owners, lessees or 
 managers of any canal or other inland navigation. 
 
 Section 16 of the same Act contains provisions for securing 
 equality of treatment in respect of tolls where a railway 
 company is authorized to work steam vessels in connection 
 with their lines ; and also provides that "the provisions of 
 the Railway and Canal Traffic Act, 1854," so far as the 
 same are applicable, shall extend to the steam vessels and 
 to the traffic carried on thereby. 
 
 By section 17, "where any charge shall have been made 
 by a Company in respect of the conveyance of goods over 
 their railway, on application in writing within one week 
 after payment of the said charge made to the secretary of 
 the Company by the person by whom or on whose account 
 the same has been paid, the Company shall within fourteen 
 days render an account to the person so applying for the 
 same, distinguishing how much of the said charge is for 
 the conveyance of the said goods on the railway, including 
 therein tolls for the use of the railway, for the use 
 of carriages, and for locomotive power, and how much 
 of such charge is for loading and unloading, covering, 
 collection, delivery, and for other expenses : but without 
 particularizing the several items of which the last-mentioned 
 portion of the charge may consist." 
 
 By section 18, " where two railways are worked by one 
 Company, then, in the calculation of tolls and charges for 
 any distances in respect of traffic (whether passengers, 
 animals, goods, carriages or vehicles) conveyed on both 
 railways, the distances traversed shall be reckoned con- 
 tinuously on such railways, as if they were one railway." 
 
 The ilegulation of Railways Act, 1871 (^34 & 35 Vict. 
 c. 78), section 12, enacts that " where a Railway Company 
 
CARRYING HORSES, 289 
 
 under a contract for carrying -persons, ajiimak, or goods 
 by sea procure the same to be carried in a vessel not 
 belonging to the Railway Company, the Railway Company 
 shall be answerable in damages in respect of loss of life or 
 personal injury, or in respect of loss or damage to animals 
 or goods, in like manner and to the same amount as the 
 Railway Company would be answerable if the vessel had 
 belonged to the Railway Company ; provided that such 
 loss of life or personal injury, or loss or damage to an i Dials 
 or goods, happens to the person, animals or goods (as the case 
 may be) dming the carriage of the same in such vessel, the 
 proof to the contrary to lie upon the Railway Company." 
 
 This section extends the provisions of the 31 & ^2 Yict. 
 c. 119, s. 16, ante, p. 288, and therefore of 17 & 18 Yict. 
 c. 31, s. 7, ante, p. 269, to the carriage of goods which the 
 Company contract to carry in ships not belonging to them. 
 In Boolan v. The Midland Railway Company (r), the defen- DoolmiN.Mid- 
 dants, an English Railway Company, having no special ^""(^ l^ad. Co. 
 powers to work steam vessels, contracted at their office in 
 Dublin to convey cattle by sea to Liverpool, and thence by 
 railway to St. Ives. The cattle were lost on the passage 
 to Liverpool through the negligence of the crew of the 
 steam vessel, with the owners of which the Railway Com- 
 pany had a through booking arrangement for the conveyance 
 of their traffic. The contract was made subject to a written 
 condition exempting the Railway Company from liability 
 for " loss of, or any damage or injury to, animals, goods, 
 or property intrusted to them, arising from the dangers or 
 accidents of the sea, or of steam navigation, the act of God, 
 the Uueen's enemies, jettison, barratry, collision, improper, 
 careless or unskilful navigation, accidents connected with 
 machinery or boilers, or any default or negligence of the 
 master or any of the officers or crews of the company's 
 vessels ; " and it was held by the House of Lords, reversing 
 the judgment of the Irish Exchequer Chamber (.s), and 
 restoring the judgment of the Irish Court of Common 
 Pleas [t], that the contract was governed by the Railway 
 and Canal Traffic Act, 1854, s. 7 (»), that its conditions 
 were unreasonable, since they tried to exempt the Company 
 from all liability for the negligence of its officers and 
 servants, and therefore that the Railway Company was 
 liable for the loss of the cattle. 
 
 (r) L. R., 2 App. Cas. 792 ; {t) 9 Ir. R., C. L. 20. 
 
 34 L. T., N. S. 317. {u) Ante, p. 2G9. 
 
 (6) 10 Ir. R., C. L. 47. 
 
 o. u 
 
290 CAKRYIISG HORSES. 
 
 Steamboat Section 32 of the Contagious Diseases (Animals) Act, 
 
 aud Railway 1878 (41 & 42 Yict. c. 74), empowers tlie Privy Council 
 &c!X^dism- from time to time to make such orders as tliey think fit, 
 feet Carriages, subject to the provisions of the Act, for prescribing and 
 Boats, &c. regulating the cleansing and disinfecting of vessels, vehicles 
 and pens, and other places used for the carrying of animals 
 for hire or purposes connected therewith. Accordingly, 
 by Order in Council of August 16th, 1878 (the Cleansing 
 and Disinfecting Order of 1878), provisions are made for the 
 cleansing ancj, disinfecting in the mode therein ordered — 
 of every vessel used for carrying animals by sea, or on a 
 canal, navigation, or river, after the landing of animals 
 therefrom and before the taking on board of any fresh 
 animals or other cargo — of every loading pen, either on 
 each day on which it is used and after the using thereof, 
 or at some time not later than twelve o'clock at noon of 
 the next following day, unless the following day is 
 Sunday, and then on the following Monday, and before 
 the using thereof — of every truck and every van on every 
 occasion after an animal is taken out of the same, and 
 before any other animal is placed therein — of every move- 
 able gangway or other apparatus used for transit of 
 animals on or from a truck or vessel as soon as practicable. 
 For any contravention of these provisions the owner and 
 master of the vessel in which ; and the Railway Company 
 carrying animals on or owning or working the Railway 
 on which ; and the owner of the apparatus, in respect of 
 which the same is done, shall each be deemed to be guilty 
 of an offence against the Act. 
 "Reasonable A Carrier of goods or cattle is only bound to carry in a 
 time. reasonable time under ordinary circumstances, and is not 
 
 bound to use extraordinary efforts, or incur extra expense 
 in order to surmount obstructions caused by the act of God, 
 such as a fall of snow {ii). Nor is he responsible for delay 
 arising from causes beyond his control ; e.g., a Railway 
 Company was prevented from unavoidable obstruction on 
 its line from carrying goods within the usual time. The 
 obstruction was occasioned by an accident resulting solely 
 from the negligence of another Company, having parlia- 
 mentary running powers over their line ; and it was held 
 that the Railway Company was not liable to the owner of 
 the goods for damage caused to them by the delay (o). 
 
 («) Uriddo)!. V. Great JS'ortltcni («) Taylor \. Great NortJicrn Ra'd- 
 
 Railwatj Co., 28 L. J., Ex. 51. vay C'o.,"L. R., 1 C. P. 385 ; 35 L. 
 
 J., C. P. 210. 
 
CARRYING HORSES. 291 
 
 What is, or is not, reasonable time, must be judged with 
 reference to the means at the Carrier's disposal for for- 
 warding the goods (;;) ; but if his course of business is 
 inconsistent with reasonable expedition, it is no answer to 
 an action against him for damages arising from delay, that . 
 he carried at the ordinary rate at which he conducted 
 business {q). Provided that he carry by a reasonable and 
 usual route he is not bound to carry by the shortest route, 
 even though empowered by statute to charge a mileage 
 rate for carriage (r). 
 
 A Ferryman is bound not only to provide a safe mode A Feirjman. 
 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 Mare towards the shore ; but she pushed 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 provide means 
 for getting from one to the other. And that although 
 the Mare was under the control and management of the 
 plaintiff, they were liable for the injury to her in con- 
 
 [p] Hales V. London and Xorth Western Eailwai/ Co., 32 L. J., Q. 
 
 Western Railway Co., 32 L. J., Q. B. 292. 
 
 B. 292. (/•) Myers v. London and South 
 
 (q) Blalcemore v. Lancashire and Western Railway Co., L. E., 5 C. 
 
 Yorkshire Railway Co., 1 F. & F. P. 1. 
 76 ; Halei v. London and Kortli 
 
 v2 
 
292 
 
 CARRYING HORSES. 
 
 Damaffes. 
 
 Injury must 
 not be too 
 remote. 
 
 Failing' to pro- 
 vide Horse- 
 boxes for 
 Plorses to be 
 sold at 
 Auction. 
 
 sequence of their culpable negligence in allowing an im- 
 proper slip to be used (r). 
 
 The Damages to be paid will be measured by the value 
 of the animal, if it be killed, or by the loss on the sale, 
 if it be injured, but in respect of Companies under the 
 Railway and Canal Traffic Act (s), within the limit of 
 Damages imposed by that Statute, viz., for a horse 50/., 
 neat cattle per head 15/., and for sheep and pigs per 
 head 2/., unless at the time of delivery they shall be de- 
 clared to be of higher value than that above mentioned ; 
 in which case however they cannot be estimated upon a 
 higher value than that which has been declared by their 
 owner or his agent in the written declaration required by 
 the Company, though the declared value is less than the 
 real value [t) 
 
 If Horses or cattle are injured on their way to an 
 Agricultural Show, the chance of obtaining a prize is 
 too remote a ground for Damages (») . But such ex- 
 penses as are reasonably and necessarily incurred by the 
 Owner in consequence of unreasonable delay in the de- 
 livery of goods, may be recovered against the Carrier (,r). 
 
 In order to recover Damages for non-sale, owing to delay 
 in carrying, there must have been an actual Contract to 
 buy for a price {y). 
 
 A Railway Company having failed to provide Horse- 
 boxes, pursuant to Contract, for the conveyance of Horses 
 for sale by auction in Dublin on the day but one following, 
 the Owner was compelled to send them by road, a distance 
 of twenty-four miles, in order that they might arrive 
 in due time for the sale, and for previous inspection by 
 purchasers. The Horses, which v/ere valuable hunters, 
 were in soft condition at the time. They were deteriorated 
 in appearance by the fatigue of the road journey ; one of 
 them was lamed : and such as Avere sold realized prices 
 below what would have otherwise been obtained, the others 
 being left on the Owner's hands. It appeared that if they 
 had been in hard-fed condition, they would have borne the 
 journey without injury. The Company's station master 
 was, at the time of the Contract, aware of the intended 
 
 (r) JVilloughbi/ v. Horridge, 22 L. 
 J., C. P. 90. 
 
 is) 17 & 18 Vict. c. 31. 
 
 {t) M'Cance v. London and North 
 Western Baihcai/ Co., 31 L. J., Ex. 
 65 ; <•?. C. Ex. Ch. 34 L. J., Ex. 39. 
 
 [>() Watson V. Amhergatc, Not- 
 ihtg/iam and Boston Railway Co., 
 15 Jur. 448. 
 
 (.r) Black v. Baxendalc, 1 Ex. 410. 
 
 [>/) Hart V. BaxcndaU, IG L. T., 
 N. S. 390, IMartin, B. 
 
CARRYING HORSES. 293 
 
 sale and of the day on whicli it was to take place. It was 
 held that the Company were not liable in Damages for the 
 whole of the loss which the Owner sustained in consequence 
 of the injuries occasioned by the road journey ; but that 
 the measure of Damages was the deterioration which the 
 Horses, if in ordinary condition and fit to make the 
 journey, would have suffered thereby, and the time and 
 labour expended on the road (~) . 
 
 (z) Waller v. Midland Great Western Railicay Co., L. E., 4 Ir. 376; 
 reversing L. E.., 1 Ir. 520. 
 
( 204 ) 
 PART II. 
 
 NEGLIGENCE IN THE USE OF HOESES, &c. 
 — * — 
 
 CHAPTEE 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. 
 
 Negligent Driving. 
 
 Definition of Xcgligoice 296 
 
 Negligent JJriving id. 
 
 Where killing a Person is held to 
 be Murder id. 
 
 Where lalling a Person is held to 
 be Manslmighter 297 
 
 Burthen of Proof id. 
 
 Furious Driving id. 
 
 Carriages racing id. 
 
 Driver unable to pull up id. 
 
 Causing Death of Passenger . . . . 298 
 
 Defence of Contributor;/ Neg- 
 ligence id. 
 
 Where killing a Person is held to 
 
 be Accidental Death id. 
 
 jlnd the Driver is not liable. . 299 
 
 Trotting a Waggon along a Poad id. 
 
 Trotting a Waggon along a Street id. 
 
 Memarks in Easfs Pleas of the 
 Crown id. 
 
 Where Streets arc unusually 
 crowded id. 
 
 Where Driver is indictable under 
 24 ^- 25 Viet. c. 100, s. 35 . . 300 
 
 Furious Driving in the Metro- 
 politan Police District id. 
 
 Poiccr of Police Constables .... id. 
 
 Conviction no Par to Action of 
 Trespass id. 
 
 Where Party injured by negli- 
 gent Driver may maintain an 
 Action id. 
 
 Duty of Drivers of public and 
 private Vehicles id. 
 
 Action lies for Negligence in the 
 care of vicious Horses, S;c. .. 301 
 
 Where another Person strikes a 
 Horse id. 
 
 Damages recovered in Trespass . id. 
 
 Driving furiously round a Corner 301 
 
 Mail Cart rapidly entering Post 
 Office Yard id. 
 
 Frightening a Horse by a Fire- 
 basket id. 
 
 By Van left on Poadside .... 302 
 Judgment in Harris v. Mobbs 303 
 By bloivitig off Steam 305 
 
 Pules as to civil Ziability .... id. 
 
 Negligence on one Side only . . id. 
 
 Passenger throivn from an Om- 
 nibus 30G 
 
 Horse and Cart left standing in, 
 the Street id. 
 
 Damage from Tackle breaking.. 307 
 Or from Defect in the Car- 
 riage id. 
 
 Negligence on both Sides .... id. 
 
 Where the Negligence of the in- 
 jured Party did not contribute 
 to the Accident 308 
 
 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 Poad id. 
 
 Question of ordinary Care on the 
 
 Part of the Plaintiff' 309 
 
 On the Part of the Defendant id. 
 
 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 310 
 
 Judgment of the Court of Queen'' s 
 Bench id. 
 
 Where no Negligence on the Part 
 of the Defendant 31-1 
 
 Law deducible from these Cases . id. 
 
NEGLIGENT DRIVING. 
 
 295 
 
 Abbott r. Macfie 314 
 
 A Heap left on a Rigltwaij .... 315 
 
 Opportunity of seeing the Ob- 
 struction id. 
 
 Eunning over Stones at Night . , id. 
 
 Leaving the Highicaij id. 
 
 Excavation a public Nuisance . . 316 
 
 Trespasser may maintain an 
 Action id. 
 
 True Test of legal Liability .... id. 
 
 Owners of private Ways may be 
 liable for Negligence id. 
 
 Even where Lnjury caused by 
 intervening act of third Tarty . 317 
 
 Liability of a Contractor id. 
 
 Where there arc several ivays of 
 doing a Thing , .... 318 
 
 Liability of an Emp)loyer id. 
 
 What is the Question in such 
 Cases id. 
 
 Drain repaired by an ordinary 
 but skilful Labourer id. 
 
 Stones left by a Sub-Contractor . 319 
 
 Statutory L)uty — Surveyor of 
 Highicays id. 
 
 Terformance of an ordinary Do- 
 mestic Duty id. 
 
 Manure left on a Road 320 
 
 With regard to Works cvccutcd 
 under Local Acts id. 
 
 Eotli Parties to blame id. 
 
 Identification of Child icith Ter- 
 son in charge of it 321 
 
 Identification of Tassenger ivith 
 Driver id. 
 
 Remarks in Smith's Leading 
 Cases id. 
 
 Tower of Selection 322 
 
 Altogether an Accident id. 
 
 Manning over a Terson at Night . id. 
 
 Where it is the Result of the 
 sudden Fright of the Horse . . 323 
 
 Hammack c. White id. 
 
 Manzoni v. Douglas 324 
 
 Horse running away id. 
 
 Qualification of Rule 325 
 
 Froof of Negligence must be 
 
 affirmative 4 id. 
 
 Where Evidence is equally con- 
 sistent ivith Negligence and no 
 
 Negligence 326 
 
 Where a Horse straying in a 
 Highivay kicked a Child .... 327 
 
 Horse kicking at Sale id. 
 
 Accident itself sometimes affirma- 
 tive Froof of Negligence . . .-. id. 
 
 Evidence identical with that re- 
 quired for Manslaughter .... 328 
 As to Demand of Farticulars in 
 Actions for Negligent Driving, id. 
 
 KULE OP THE EOAD. 
 
 Right Side of the Road 328 
 
 Driving on the wrong Side in the 
 
 Dark id. 
 
 Seeing a Ferson coming on his 
 
 wrong Side id. 
 
 Does not justify a wanton In- 
 jury 329 
 
 Rule of the Road not inflexible. . id. 
 
 Light Load meeting Heavy .... id. 
 
 Farties meeting on a sudden, . . , id. 
 
 Rule of the Road ap2)Ues to Saddle 
 
 Horses 330 
 
 Ordinary Vehicles meeting Street 
 
 or Tram Cars id. 
 
 Foot Fassengers id. 
 
 Rule of the Road does not apply. 331 
 
 Going over a Crossing id. 
 
 Nuisance on Fublie Highway . . id. 
 
 Horse and Carriagebefore Trades- 
 man'' s Door id. 
 
 Negligent Driving by a Seevant. 
 
 When the Master was liable ac- 
 cording to former Decisions ., 331 
 
 Liability now more extensive . . 332 
 
 Lirapus v. General Omnibus 
 Co id. 
 
 Acts done within Employment 
 and for Master'' s Interest .... id. 
 
 If Servant vindictively strikes 
 Horse with his Whip 333 
 
 Instructions of Master, if disre- 
 garded, immaterial id. 
 
 Master liable, if Acts are done 
 
 for his Benefit id. 
 
 Unless done out of the Course 
 ' of the ServanV s Employment 334 
 
 Liability of Cab Froprictor .... id. 
 
 Master and Servant driving to- 
 gether 335 
 
 Servant entrusting the Reins to a 
 Stranger id. 
 
 Servant striking the Horse of 
 another 336 
 
 Servant striking Fassenger .... id. 
 
 Guard of Omnibus using undue 
 Violence to Fassenger id. 
 
 Servant removing an Obstruction 337 
 
 Servant acting im2}roperly .... id. 
 
 Making a Detour for his own 
 Furposcs id. 
 
 Serva)it acting contrary to his 
 Trust 338 
 
 Taking his Master's Horse with- 
 out Leave id. 
 
 Re-entering on Duty 339 
 
 Taking the Horse of another . , id. 
 
296 
 
 NEGLIGENCE IN THE USE OF HORSES, ETC. 
 
 No express Autlioritij of Master 
 
 necessary 340 
 
 Question for the Jury id. 
 
 Master^ s Name vn the Cart .... id. 
 
 Giving an Address id. 
 
 Aetion for bodily Hurt id. 
 
 Liability of 3Iaster and Servant 
 
 respectively 341 
 
 Negligence of Fellow-Servant .. id. 
 Master bound to use due Care in 
 
 Selection of Servants id. 
 
 Liability of Cab Proprietor to 
 
 Driver id. 
 
 Action by Eepresentatives of a 
 
 Person hilled 3-12 
 
 By Persons henejicially in- 
 terested id. 
 
 Construction to be put upon the 
 
 Condition in 9 ^ 10 Vict. c. 93 id. 
 
 Flan of the Locality 313 
 
 Conviction for fur ioics Friving a 
 Bar to subsequent Action .... id. 
 
 Damages 344 
 
 Eesjjonsibility for "all possible 
 Consequences" id. 
 
 Famage too Remote id. 
 
 Lnjury done to a Carriage .... 345 
 
 Measure of Faniages where a 
 Horse has been injured id. 
 
 Famages where a Person has been 
 killed id. 
 
 How limited id. 
 
 Cannot be given for Funeral Ex- 
 penses 34G 
 
 Famages not given to a Class, 
 but to Lndividuals id. 
 
 Definition of 
 nesrlicrence. 
 
 Negligent 
 driving. 
 
 Where killing 
 a person is 
 held to be 
 Murder, 
 
 NEGLIGENT DRIVING. 
 
 Negligence is defined to be the omitting to do something 
 which a reasonable man would do, or the doing something 
 which a reasonable man would not do ; in either case 
 causing mischief to a thu-d party; not intentionally., for 
 then there would be no negligence («). 
 
 An abstract rule as to what will constitute negligent 
 driving can hardly be laid down. It must depend upon 
 all the circumstances of each case. Thus, it was held by 
 Bay ley, J. (i), that a carter sitting inside a cart, instead of 
 attending at the Horse's head, was guilty of negligenee ; 
 and the fact that while he was there sitting, the cart went 
 over a child, who was gathering up flowers on the road, and 
 killed it, made him guilty of manslaughter. And the 
 same point was ruled by HuUock, B. (c). But under 
 other circumstances a driver would be more negligent in 
 being off than on his vehicle. 
 
 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 has 
 been so held when bricks were thrown from the top of a 
 House into a thoroughfare, and killed a person {d). 
 
 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 KilfuUy drove on, it will be Murder ; for the 
 
 (rt) Per Alderson, B., Blyth v. 
 Birmingham Waterworks Co., 2 Jiu'., 
 N. S. 333. 
 
 {b) Knighfs case, 1 Lewin, C. C. 
 168. 
 
 (f;) Spring Assizes, 1829, quoted 
 1 Lewin, C. C. 168. 
 
 (rf) See per Alderson, B., Peg. v. 
 Cook, Appendix; 1 Ld. Raym. 143. 
 
NEGLIGENT DRIVING. 297 
 
 presumption of malice arises from tlie doing a dangerous 
 act intentionally, and " there is the heart regardless of 
 social duty " {e). 
 
 If the driver might have seen the danger, but did not Where killint? 
 look before him, it will be Ilanslaiirjhter for want of due a person is held 
 circumspection {e) . And generally it may be laid down, skuo-hter!' 
 that, where one by his negligence has contributed to the 
 death of another, he is guilty of Manslaughter (/). 
 
 Where a man was indicted for the Manslaughter of a Burthen of 
 woman by driving a Cab over her in a public street, and P^'*^*^^* 
 his defence was, that he had used due and proper care in 
 driving the Cab upon the occasion in question ; it was 
 held that the burthen of proving negligence did not lie on 
 the crown, but that, upon the fact of the kilKng being 
 proved, it was cast upon the prisoner to show that he had 
 used due and proper care in driving the Cab ( g). 
 
 If a man drive a Carriage or Cart at an unusiiaUij rapid Fiu-ious 
 2mce {h), whereby a person is killed, though he calls ^'^^"'o- 
 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 driver is in law guilty of Manslaughter (?). 
 
 If each of two persons be driving a Cart or Carriage, Carriages 
 at a dangerous and furious rate, along a highway, and racing, 
 they be racing and inciting each other so to drive, and 
 one of them runs over a man and kills him, both are 
 guilty of Manslaughter (/.•) ; 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 ^^^'^ ^"^ ^^^^^ 
 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 
 
 (e) 1 Hale, 476; Fost. 263; 1 (h) See the General Highway 
 
 East's Pleas of the Crown, 263 ; Act, 5 & 6 WUl. 4, c. 50, s. 78 ; 
 
 and see Hcff. v. Cook, Appendix. and for the Metropolis, 2 & 3 Vict. 
 
 (/) licff. V. Swindall, 2 C. & K. c. 47, s. 54. 
 
 230. [i) VevGiivTow,B., Jicxv.TFalkcr, 
 
 iff) Berj. V. Cavendish, 8 Ir. E., 1 C. & P. 32. 
 
 C. L. 178— C. C. R. (/.-) Ecy. v. Stvindall, 2 C. & K. 
 
 230. 
 
298 NEGLIGENCE IN THE USE OF HOP.SES, ETC. 
 
 Patteson in summing up said to tlie 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 his Horses ? 
 And that depends on whether the Horses were unruly, or 
 whether you believe tliat 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 will 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, 
 witliout any act of his own, 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" (/). 
 Causing death If a man undertakes to drive another in a vehicle, he is 
 of Passenger. Ijq^^,^ ^q exercise proper care in regard to the safety of the 
 man under his charge, and if by culpable negligent driving 
 he causes the death of the other, he will be guilty of man- 
 slaughter. But he cannot be found guilty of manslaughter 
 if the deceased himself interfered in the management of the 
 Horse and thereby assisted in bringing about an acci- 
 dent {m) . 
 Defence of Contributory negligence is not an answer to a criminal 
 
 Nr-Sencef charge, as to a civil action (»). And even if the doctrine 
 ° ° ■ ' of contributory negligence does apply to criminal cases, yet 
 there is no contributory negligence on the part of anyone 
 in merely getting into a vehicle and allowing himself to 
 be driven, although the diiver be perceptibly drunk (o) . 
 Where killing "VVhen a person has been killed in such a manner that 
 heM^to'ibr ^^0 u-ant of care could be imputed to the driver, it will be 
 Accidental Accidental Death, and he will be excused (;j). 
 
 Death, 
 
 m Sex T. Timmiiis, 1 C. & P. 500. (o) Beg. v. Jones, 22 L. T., N. S. 
 
 [m) Reg. v. Jones, 21 L. T., N. S. 217 ; H Cox, C. C. 544— Lush, J. 
 
 217; 11 Cox, C.C. 544— Lush, J. {p} 1 Hale, 476; Post. 2G3 ; 1 
 
 {n) Beg. v. Kcic, 12 Cox, C. C. East's Pleas of the Crown, 263. 
 356 — Byles, J. 
 
NEGLIGENT DRIVING. 299 
 
 Therefore, if tlie driver of a. conveyance use all reason- And the driver 
 able care and diligence, and an accident happen through ^'^ ^°* liable. 
 some chance which he could not foresee or avoid, he is not 
 to be held liable for the results of such accident {q). 
 
 Thus, in an old case, where A. was driving a waggon Trotting a 
 with four Horses in the highway at Whitechapel, and he Waggon 
 being in the waggon, and the Horses upon a trot, they ^^°^o ^ ^^''^*^- 
 threw clown a woman who was going the same way with a 
 burden upon her head, and killed her, Chief Justice Holt, 
 Justice Tracy, Baron Bury, and the Recorder Lovel, held 
 this to be only a Misadve)iture{r). 
 
 But Lord Holt held in that case, if it had been in a Trotting a 
 street where people usually pass, it would have been Man- Waggon 
 slaughter ; but it was clearly agreed that it could not be ° 
 M(()'(Ier{r). 
 
 It must be taken for granted from this note of the case, Eemarks in 
 that the accident happened in a highway ichere j^cople East's Pleas 
 did not nsually pass (s) ; for otherwise, the circumstance ° ^ rown. 
 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 any, 
 though but few, persons might probably pass by the same 
 road. The greatest possible care is not to be expected, 
 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 (/). 
 
 The fact that Streets are unusually crowded from any "Wlicre Streets 
 public procession or other cause, instead of excusing a are unusually 
 driver when proceeding at his ordinary pace and with °^'°''^<i^*^^- 
 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 with those 
 precautions which he might have ordinarily observed {u). 
 
 (7) Itcff. v. Murray, 5 Cox, C. C. present day. 
 509 (Ir.). (0 1 East's Pleas of the Crown, 
 
 (r) O. B. Sess. before Mich. T. 263. 
 1704, M. S. Tracy, 32. («) Rcrj. y. Murray, 5 Cox, C. C. 
 
 (.v) Unlike Whitechapel of the 509 (Ir.). 
 
300 
 
 NEGLIGENCE IN THE USE OF HORSES, ETC. 
 
 Where driver 
 is indictable 
 under 24 & 25 
 Vict. 0. 100, 
 B. 35. 
 
 Fm-ious driv- 
 ing in the 
 Metropolitan 
 Police Dis- 
 trict. 
 
 Power of 
 Police Con- 
 stables. 
 
 Conviction no 
 bar to action 
 of Trespass. 
 
 Where party- 
 injured by 
 negligent 
 di'iviug may 
 maintain an 
 action. , 
 
 Duty of dri- 
 vers of public 
 and private 
 vehicles. 
 
 If any one be maimed or otherwise injured by the 
 "wanton and furious driving or racing," or by the "wilful 
 misconduct" of the driver of any public stage carriage, 
 the person so offending is guilty of a misdemeanor, and 
 indictable under the statute 24 & 25 Yict. c. 100, s. 35 {x). 
 
 Under 2 & 3 Yict. c. 47, s. 54, every person who, within 
 the Metropolitan Police District, " shall ride or drive 
 furiously, or so as to endanger the life or limb of any per- 
 son, or to the common danger of the passengers in any 
 thoroughfare," is liable to a penalty of not more than 40.s. 
 
 Police Constables are empowered to take a person into 
 custody without warrant, who may commit any such offence 
 " within view of any such Constable " («/) ; and this power 
 is not confined to cases where the offender's name and 
 residence is unknown (2) . 
 
 A conviction for fmious cbiving under this Statute, 
 not alleging the oft'ence to have been committed within 
 view of the Police Constable, was held not to be a bar to 
 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 {a) . 
 
 A party who sustains an injury from the careless or 
 negligent driving of another may maintain an action, 
 unless he has himself been guilty of such negligence or 
 want of due care as to have contributed or conduced to 
 the injury (b). 
 
 The driver of a public vehicle is bound to be a skilful 
 driver, and any damage arising from his unskilful driving 
 is a ground of action. A less degree of skill is to be 
 looked for from the driver of a private vehicle, but he is 
 bound to drive with reasonable care and skill. Thus, in 
 the case of Collier v. Chaplin (c), which was an action 
 to recover damages for an injury to the plaintiff, and to 
 her clothes, from being upset by the defendant, when 
 driven by him, it appeared that the plaintiff at the de- 
 fendant's request took a drive with him in his cart, and 
 
 (x) Re-enacting 1 Geo. 4, c. 4. 
 
 (y) 2 & 3 Vict. c. 47, s. 54. 
 
 (c) Justin: V. Gosling, 16 J. P. 105 
 (C. P.) ; 8. G. 21 L. J., C. P. 94 ; 
 2 & 3 Vict. 0. 47, s. 63. 
 
 («) Justice V. Gosling, 16 J. P. 105 
 (C. P.); ^. C. 21L. J.,C. P. 94. 
 
 {b) See per Coltman, J., Thoro- 
 good V. Bryan, 8 C. B. 130. 
 
 {c) Collier v. Chaplin, N. P., C. P. 
 cor. Byles, J., Westminster, Feb. 1, 
 1865. See also Moffat v. Batcman, 
 L. R., 3 P. C. 115 ; 22 L. T., N. S. 
 140 ; 6 Moore, P. C. C, N. S. 369 ; 
 Simsoii V. London General Omnibus 
 Co., L. R., 8 C. P. 390 ; 42 L. J., 
 C. P. 112; 28 L. T., N. S. 560; 
 21 AV. R. 565.; and Manzoni v. 
 Douglas, L. R.. 6 C. P. D. 145, 151. 
 
NEGLIGENT DRIVING. 301 
 
 that tlie defendant upset the cart, by reason of which 
 a can of gas-tar, which was in the cart, was spilt over 
 her clothes, and her ankle was injured. Mr. Justice 
 Byles told the Juiy that the defendant was not bound to 
 bring the same skill and care as a driver of a public vehicle, 
 to the driving of his cart, in which he allowed the plaintiff 
 to accompany him, but he was bound to drive with reason- 
 able care and skill, and that the question for them was 
 whether the accident arose from the defendant's culpable 
 negligence or not. 
 
 An action lies for neglect in taking care of vicious Action lies for 
 Horses, Cattle, Dogs, &c. As if a man ride an unruly iieghgence m 
 Horse in Lincoln's Inn Fields (or other public place -vricious 
 of resort) to tame him, and he break loose and strike a Horses, S:c. 
 person {d). 
 
 But where damage is done in consequence of a person Where ano- 
 striking a Horse on which another rides, the striker is the strike^^r""^ 
 trespasser and the rider is not (c). Horse. 
 
 A man and his wife brought an action of Trespass for Damages 
 a battery, and declared that the defendant struck the recovered in 
 Horse whereon the wife rode, so that the Horse ran away ^''^^i^"^^- 
 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 (/). 
 
 If a man diive fmuously round a corner and injure a Driving f un- 
 person on the further side, he is liable to an action for his ^^^^7 round 
 
 T / \ a corner. 
 
 negligence ( g) . 
 
 One of the Mail Carts, entering the Greneral Post Office Mail cart 
 Yard at the rate of five or six miles an hour, knocked rapidly enter- 
 down and seriously injured the plaintiff, a widow. On an y"^^*^^*^^"® 
 action being brought the defence was, that the accident 
 was occasioned by the plaintiff's own awkwardness, 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 (A). 
 
 If damage is caused by a Horse taking fright at some- Frightening 
 thing which is improperly placed in the public street, the j^-^^^^ w^ 
 
 (d) See Com. Dig. Action upon {</) See Slaijor of Colchester v. 
 
 the Case for Negligence, A. 5; and Brooke, 7 Q. B. 359. 
 Ferocious and Vicious Animals, (/() Smithv. M''Namara,cov.'Liovdi 
 
 post, Part 2, Chap. 2; see also Cami^bell, C. J., Queen's Bench, 
 
 jUichaelv. Alcstrce, 2 Lev. 173. N. P., May 12, 1853; and see 
 
 (r) Gibson V. Fcpjxr, 2 Salk. G37. Boivdcn v. Sherman, Appendix. 
 
 (/) BodwcU V. Burford, 1 Mod. 21. 
 
302 NEGLIGEXCE IN THE USE OF HORSES, ETC. 
 
 person so placing it is liable. Thus, in tlie 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 wag 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 bone was set, but 
 hospital gangrene supervened, 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. Eventuoily he 
 w^as able to walk about with the help of a stick, and earn 
 lO.s. a- week, but at the time of the accident he was in the 
 receipt of 1/. a- week, on which he supported himself and 
 two young daughters. The defendant had contracted to 
 lay the floor of a room in the Angel Inn with asphalte, 
 which he caused to be boiled in the lane, as the smell was 
 too powerful for the house. He had been warned 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 
 ]Aaee it in the yard of the Inn, where it had been suggested 
 it would be more out of the way. The Jury returned a 
 verdict for the plaintiff — damages 60/. (/). 
 ByVanlefton A house-van attached to a steam-plough was left for 
 Roadside. ^|-^q night on the grassy side of a highway by the de- 
 fendant. The van and plough were four or five feet from 
 the metalled part of the way. During the evening the 
 plaintiffs' testator drove his Mare in a Cart along the 
 metalled road. The Mare was a kicker, but he was un- 
 aware of her vice. Passing the van she shied at it, kicked, 
 and galloped, kicking for 140 yards, then got her leg over 
 the shaft, fell, and kicked her driver as he rolled out of the 
 Cart. He afterwards died from the kick so received. In 
 an action under Lord Campbell's Act (9 & 10 Yict. c. 93, 
 s. 1), by his executors for wrongful and negligent 
 obstruction of the highway, the Jury found that the van 
 was left where it stood unreasonably, and negligently, and 
 caused some appreciable danger to vehicles passing along the 
 metalled parts of the road ; that the death was occasioned 
 by the van standing where it did, and by the inherent 
 
 (i) Lamhcrt v. Harrison, cor. Talfoiml, J., Guildhall (C. P.), Feb. 25, 
 18:)3. 
 
NEGLIGENT DRIVING. 303 
 
 vice of the Mare combined, and that there was no con- 
 tributory negligence. Denman, J., in delivering judg- 
 ment for the plaintiff said, " It was, I think, clearly made 
 out at the trial, that the Mare which the deceased was driving 
 was a vicious Mare, in the sense that she was a kicker. It 
 must, however, be taken that the Jury negatived any 
 knowledge in the deceased of this habit, such as would 
 have rendered it negligent in him to drive the Mare. 
 Contributory negligence on any other ground was nega- 
 tived. The immediate cause of the accident was clearly 
 that the Mare in kicking got her leg over the shaft which 
 caused her to fall, and in falling, the deceased received the 
 kick which ultimately caused his death. The Jury found Judgment in 
 that the accident was due to the van being there (which -^^"''J'" ^" 
 must be taken to mean ' to the van being unreasonably 
 left on that part of the highway so as to cause some danger 
 to vehicles passing by'), combined with the vice of the 
 Mare. I understood this finding to mean that the accident 
 would not have happened but for both these causes combined 
 — an imreasonable and dangerous user by the defendants of 
 that part of the road by their van and plough so as to 
 cause danger to vehicles passing by, — and an exception- 
 ally dangerous animal shying, and running away from 
 fright at the van and plough, and then kicking the vehicle 
 whether from fright or vice, the kicking being an excep- 
 tional vice in the Mare. This finding must also, if pos- 
 sible, be reconciled with the other finding that the accident 
 was not a mere accident, which was explained to the Jury 
 as meaning one for which no one was to be fairly con- 
 sidered to blame. 
 
 " The plaintiffs' counsel argued that, inasmuch as the 
 defendant was guilty of an unauthorized and dangerous 
 act in derogation of the public rights, by which the Mare 
 had been frightened, this must be taken to be the only 
 material cause of the mischief, the deceased being guilty 
 of no wrong at all, and the whole transaction being one 
 flowing directly from the alarm caused by the defendant's 
 unauthorized act. 
 
 "On the other hand, it was contended that the causa 
 proxima of the injury was the kicking of the Mare, which 
 was not a necessary or natural consequence either of the 
 shying or of the running away, so that, although it might 
 be true that, in some sense, the van and plough being 
 there led to the accident, it was not true that their being 
 there was material to the accident, or caused it, in such a 
 sense, so to make the defendant responsible for it. 
 
304 NEGLIGENCE IN THE USE OF HORSES, ETC. 
 
 " Tliougli, not without licsitation, I have come to the 
 conckision that the plaintiffs are entitled to have the verdict 
 and judgment entered for them. Looking at the undis- 
 puted facts in the case, I think it is clear that, although 
 the immediate cause of the accident was the kicking of the 
 Mare, still the unauthorized and dangerous appearance of 
 the van and plough on the side of the highway was, within 
 the meaning of the law, the proximate cause of the acci- 
 dent. It cannot, I think, be laid down that no one is 
 entitled to recover damages for an injury caused by a 
 kicking horse, in the absence of any knowledge on his part 
 that it is such. In the present case it must be taken that 
 the deceased was not aware that the horse was a kicker. 
 Then was the kicking which caused the death a natural 
 and necessary consequence of the act complained of ? I 
 think, upon the whole, that it was. The van was there, 
 and it in fact frightened the deceased's Mare so that she 
 shied and swerved to run away, and, having got one wheel 
 on the footpath, kicked violently, and within 150 yards 
 fell and injured the deceased so that he died. The whole 
 transaction is within a few seconds, and originates in the 
 fright of the Mare caused by the van. I think it cannot 
 be laid down as having been the duty of the deceased to 
 abstain from driving the Mare. On the other hand, it 
 cannot be laid down as the right of the defendant to 
 assume that no nervous or runaway or kicking Horse would 
 come along the highwa3^ It is only in the case of Horses 
 liable to be frightened that any danger exists, and where 
 a Horse has once been frightened by a dangerous apparition 
 unlawfully placed on the highway, running away and 
 kicking can hardly be considered unusual or unnatural 
 consequences of the fright. The wrongdoer has no right 
 to lay down the measure of his own wrong, or to limit the 
 free use of the highway to Horses which shall only shy 
 when frightened and do no further mischief. On the 
 whole, I think that the finding of the jury only amounts 
 to this, that the accident was caused by the van, but that 
 if the Horse was not a kicker it would not have happened. 
 Looking at the finding and the facts together, I come to 
 the conclusion that the plaintiffs were entitled to the 
 verdict. I therefore dii-ect it to be entered for them for 
 the amount assessed by the jury, and give judgment for 
 that amount with costs" {k). 
 
 (k) Harris v. Mobbs, L. R., 3 Ex. L. R., 3 Q. B. D. 327 ; 47 L. J., 
 D. 268; SOL. T.,N.S. 164; 27 W. Q. B. 427; 38 L. T., N. S. 454. 
 R. 154 ; and Reo Clark v. Cliambers, 
 
NEGLIGENT DRIVING. 305 
 
 So, too, where an Engine-driver blew off steam at a By Engine- 
 spot where a Railway crossed a Highway on a level, so as P^'i^er blow- 
 to frighten Horses waiting to cross the line, such crossing I't^^Crossin^ 
 being a place where there was considerable traffic, it was 
 held to be actionable negligence on the part of the Com- 
 pany (/). 
 
 Where damage has been caused by collision, there may Rules as to 
 be Negligence on one side onlij [m) \ ov Negligence on both civil liability. 
 sides (u). Both 2^n>'ti&s majj be to blame (o) ; or it may 
 be Altogether an accident {p). The following Rules, which 
 appear fully borne out by the cases hereafter quoted, will 
 fix the liabilities of the parties concerned, under whatever 
 circumstances the damage may be inflicted. 
 
 1st. If a party who is taking reasonable and proper care 
 receives damage in consequence of a Horse or Carriage he 
 encounters being negligently managed, the person who 
 has the control over such Horse or Carriage is answerable. 
 
 2nd. Where damage is not the neeessanj consequence of 
 a particular wrongful act, the person sustaining damage, 
 though a wrongdoer, 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 im- 
 properly, to avoid doing him damage, the person inflicting 
 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, Negligence on 
 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 
 
 {]) Manchester ami AUrlncham («) Negligence on both sides, 
 
 Mailuaij Co. v. Fullarton, 1-1 C. B., post, p. 307. 
 
 N. S. 54. (o) Both parties to blame, post, 
 
 {m) Negligence on one side only, p. 320. 
 
 infra. (p) Altogether an accident, post, 
 
 p. 322. 
 
 O. X 
 
306 
 
 NEGLIGENCE IN THE USE OF HORSES, ETC. 
 
 Passenger 
 thrown from 
 an Omnibus. 
 
 Horse and 
 Cart left 
 standing' in 
 the street. 
 
 plaintiff lias coutributecl to the accident by her own 
 neglect, slie cannot recover in this action. I will pnt 
 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 s]ie could not save herself, and thus met with the 
 accident, 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 
 too fast, and was therefore guilty of negligence as well as 
 the plaintiff. If, however, the plaintiff took reasonable 
 and proper care, and it was the negligence of the driver 
 which caused the accident, you ought to find a verdict for 
 
 the plaintiff "C/)- 
 
 So, also, where it appeared that the plaintiff was a 
 passenger on the top of an Omnibus, which was struck 
 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 (r). 
 
 If a Horse and Cart are left standing in the street, 
 without any person to watch them, the owner is liable for 
 any damage done by them, though it be occasioned by 
 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" (s). And in like manner a master is 
 liable if his Cart be so left by his servant {t) . 
 
 {q) Woolfx. Beard, 8 C. & P. 373. 
 {)■) Righy v. Heivitt, 5 Ex. 242. 
 \d) llUdfje V. Goodwin, 5 C. & P. 
 
 193. 
 
 [t) Lynch V. Nurdin, 1 Q. B. 33. 
 See also Lt/go v. Ncu-hoU, 9 Ex. 302. 
 
NEGLIGENT DRIVING. 307 
 
 The owner of a Cart or Carriage is bound to have good Damage from 
 tackle, and he is liable for an accident in consequence of its tackle break- 
 breaking ; as where the chain-stay of a Cart broke, and the ^^°' 
 Horse being frightened ran away and did damage {u) ; and 
 where, in consequence of the reins breaking, a foot passenger 
 was run over and injured (,r). 
 
 So, also, in the following case, in which it appeared that Or from a de- 
 the defendant was driving his Cart down a hill, and the feet in the 
 Horse, which was usually quiet, suddenly commenced kick- ''^"^^o®- 
 ing, 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 {>/) . 
 
 The subject of Negligence on loth sides was fully con- Xcgllgenee en 
 sidered by the Court of Exchequer in Bridge v. The Grand ^^^^^ «'**• 
 Jnnetion Canal Company (s), and Mr. Baron Parke there 
 said, " The Rule of law is laid down with perfect correct- 
 ness in the case of Butterfield v. Forrester (a), that although 
 there may have been Negligence on the part of the 
 plaintiff, yet unless he might by the exercise of ordinary 
 care have avoided the consequence of the defendant's 
 Negligence, he is entitled to recover. But if by ordinary 
 care he might have avoided them, he is the author of his 
 own wrong." And in a later case (b) the law as deducible 
 from preceding decisions was thus laid down by Wight- 
 man, J., delivering the judgment of the Exchequer 
 Chamber : — " It appears to us that the proper question for 
 the Jury is, whether the damage was occasioned entirely 
 by the negligence or improper conduct of the defendant, 
 or whether the plaintiff himself so far contributed to the 
 misfortune by his own negligence, or want of ordinary and 
 common care and caution, that but for such negligence or 
 want of ordinary and common care and caution on his part, 
 the misfortune would not have happened. In the first 
 place, the plaintiff Avould be entitled to recover ; in the 
 latter not, as but for his own misconduct the misfortune 
 would not have happened. Mere negligence or want of 
 
 («) JFchh V. Lawrence, 2 Chit. (~) Bridge v. The Grand Jtmction 
 
 262. Raihca;/ Co., 3 M. & W. 246. 
 
 (a-) Cutkril v. Turley, 8 C. k P. («) Jlutterfeld v. Forrc&ter, 11 
 
 693. East, GO. 
 
 ((/) Tewpleman y.Baydon, 19 L. [b) Tnffy. JFannan, 27 L. J., C. 
 
 T. 218. P. 322. 
 
 X2 
 
308 
 
 NEGLIGENCE IN THE USE OF HORSES, ETC. 
 
 Where negli- 
 gence of the 
 injured party 
 did not con- 
 tribute to the 
 accident. 
 
 Where such 
 negligence 
 occasioned 
 part of the 
 mischief. 
 
 A -R-rongdoer 
 not without 
 the pale of 
 the law. 
 
 Dri\-ing 
 against an 
 Ass left fet- 
 tered on the 
 road. 
 
 ordinary and common care and cantion would not liow- 
 ever have disentitled him to recover, unless it was such 
 that but for the negligence and want of ordinary care 
 and caution the misfortune would not have happened ; or 
 if the defendant might, by the exercise of caution on his 
 part, have avoided the consequences of the neglect or 
 carelessness of the plaintiff." 
 
 Where the negligence of the party injured did not in 
 any degree contrihute 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 an 
 injury (c). 
 
 A person who is guilty of negligence, and thereby pro- 
 duces injury to another, cannot set up as a defence that 
 2Kiyt of the mischief would not have arisen if the person 
 had not himself been guilty of some negligence {d). 
 
 As a general liule 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 the law for this purpose (e). 
 
 Therefore, where the defendant negligently 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 defen- 
 dant'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 travelling along it might be illegal, still 
 if the proximate cause of the injury was attributable to 
 the want of proper conduct on the part of the driver 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 exercise 
 of ordinary care on the part of the driver, to find for the 
 plaintiif , 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 
 Mr. Baron Parke said, " The correct rule is laid down in 
 Bridge v. The Grand Junction Railway Company (/), 
 
 (c) See Greenland V. Chaplin, 5 Ex. 
 248. See also Broitmlow v. Metro- 
 politan Board of Works, 2 F. & F. 
 604. 
 
 {d) Greenland v. Chaplin^ 5 Ex. 
 243. 
 
 (e) See per Lord Denman, C. J., 
 Mayor of Colchester v. Brooke, 7 Q. 
 B. 377. 
 
 ( f) Bridge v. The Grand Junction 
 Mailuay Co., 3 M, & W. 246. 
 
NEGLIGENT DRIVING. 309 
 
 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 ordinary care have avoided the 
 consequences of the defendant's negligence. Although 
 the Ass may have been wrongfully there, still the de- 
 fendant 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 [g). 
 
 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 the plamtiff. 
 on his own part {Ji). 
 
 There is negligence, and a want of ordinary care, if a On the part 
 person riding a vicious Horse, applies the spur when in 'f t^® ^e- 
 close proximity to a bystander, and the Horse kicks out 
 and injures him : but there would not be negligence nor 
 a want of ordinary care, if the person riding the Horse is 
 not aware that it is a vicious one, and it suddenly kicks 
 out without provocation, and kills a bystander (/). 
 
 The defendant however is not excused merely because Circumstances 
 the plaintiff knew that some danger existed through the °^ *^®, °^^^., 
 defendant's neglect, and voluntarily incurred such danger; ^o the Jury, 
 the amount of danger, and the circumstances which led the 
 plaintiff to incur it, are for the consideration of the Jury(//). 
 
 Therefore, where Commissioners of Sewers had made a Horse injured 
 dangerous trench in the only outlet from a mews, putting ^^ ?%°? ^^^ 
 up no fence, and leaving only a narrow passage, on Avhich stable, 
 they heaped rubbish, and a Cabman, in the exercise of his 
 calling, attempted to lead his Horse out over the rubbish, 
 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 defendants, 
 brought his Horse out of the stable. Also, that the case 
 was properly left to the Jury on the question whether or 
 not the plaintiff had persisted, contrary to express warning 
 at the time (as to which there was contradictory evidence), 
 in running upon a great and obvious danger (A). 
 
 {g) Bavies v. Mann, 10 M. & W. 439. 
 546. (0 North v. Smith, 10 C. B., 
 
 [h) Clayards v. Dethich, 12 Q. B. N. S. 572. 
 
310 
 
 NEGLIGENCE IN THE USE OF HORSES, ETC. 
 
 Horse and 
 Cart left in 
 the street. 
 
 Judgment of 
 the Court 
 of Queen's 
 Bench. 
 
 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 had 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 was tried before my brother Williams at the 
 sittings in Easter Term, 1839. It was an action of Tort 
 for Negligence by the defendant's servant, in leaving his 
 Cart 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 approach 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 defen- 
 dant's servant in leaving the Cart and Horse. Witnesses 
 were then called to establish a defence by a fuller explana- 
 tion 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 with 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 
 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 
 
NEGLIGENT DRIVING. 311 
 
 for the plaintiff. 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 evidence. 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 plaintiff's 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 necessary 
 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 injury 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 unquestionably 
 against the first. If, for example, a Gamekeeper, re- 
 turning 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 j)ossibly be assumed 
 to be clear in principle, but there is also the authority of 
 the present Chief Justice (/) of the Common Pleas in its 
 support in IlUdge v. Goodwin " {m). 
 
 " But in the present case an additional fact appears. 
 The plaintiff himself has done wrong ; he had no right to 
 enter the Cart ; and, by abstaining from so doing, he 
 would have escaped the mischief. Certainly he was a 
 co-operating cause of his own misfortune by doing an 
 unlawful act ; and the question arises, whether that fact 
 alone must deprive the child of his remedy. The legal 
 proposition that one who has by his own Negligence con- 
 tributed to the injury of which he complains, cannot 
 maintain his action against another in respect of it, has 
 received some qualifications. Indeed Lord EUenborough's 
 
 (/) Chief Justice Tindal. [m) IllUhje v. Goodwin, 5 C. & P. 190. 
 
312 NEGLIGENCE IN THE USE OF HORSES, ETC. 
 
 doctrine in Buiterfidd v. Forrester (u), wliicli lias 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 I/oft v. Wilkes (o), a decision which excited 
 great attention both in Westminster Hall and beyond it, 
 this Court indeed held that a trespasser in a wood, where 
 he well knew sj)ring-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 Jowic'uhj of the danger and roluntarih/ incurring 
 it. Best, J., who was supposed to carry to the greatest 
 extent the right of protecting property against invaders 
 by placing dangerous instruments, took infinite pains, when 
 Chief Justice of the Common Pleas, to explain that his 
 opinion in Ilott v. WlUies (o) rested exclusively on the Notice, 
 In Bird v. Holbrook (p) his expressions are most remark- 
 able ; and so far is his Lordship from avowing the doctrine 
 that the plaintiff's concmTcnce in producing the evil debars 
 him from his remedy, that he considers liotf v. Wilhes (o) 
 an authority in favour of the action. He also expresses 
 an inclination to agree with the two learned judges who 
 held the action maintainable in Deane v. Clayton (q). There 
 the plaintiif's dog had been killed by a spike, placed on 
 defendant's land for the protection of his preserves, while 
 in pursuit of a hare. Park and Burrough, JJ., gave judg- 
 ment 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. 
 Holbrook (r) is a decisive authority against the general 
 proposition that misconduct, even wilful and culpable mis- 
 conduct, must nccessarili/ exclude the plaintiif who is guilty 
 of it from the right to sue. I remember being present at 
 
 [n) Buttcrfehl v. Forrester, 11 {q) Beane v. Clayton, 7 Taunt. 
 
 East, 60. 489. 
 
 {o) Ilott V. WUJccs, 3 B. & Aid. (;•) Bird v. Holbrook, 4 Bing. 
 
 301. 628. 
 
 {p) Bird V. Holbrook, 4 Bing. 628. 
 
NEGLIGENT DRIVING. 313 
 
 a trial at "Warwick, before Lord Chief Baron Richards, where 
 the same law prevailed. The case is Jay v. WJnf field (.s-), 
 mentioned in Bird v. Holhrook (/). 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 Negligence 
 of the defendant's servant in leaving his cart in the open 
 street. But between icilfnl Mischief and gross Nepligence 
 the boundary line is hard to trace ; I should rather say 
 impossible. The law runs them into each other, consider- 
 ing 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 
 assistance 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 {u) : 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- 
 sistently with the authorities, maintain his action, having 
 been at least equally in fault ? The answer is, that sup- 
 posing that fact ascertained by the Jury, but to this extent, 
 that he merely indulged the natural instinct of a child in 
 amusing himself with the empty Cart and deserted 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, however, shown these qualities in 
 as great a degree as he could be expected to possess them. 
 
 (*■) Jai/ V. WhUfichl, cited 4 Bing. case that Compton Street was more 
 
 644. througed than usual in consequence 
 
 [t) Bird v. Ilollirook, 4 Bing. 628. of a neighbouring street having 
 
 (m) It appeared in the present been stopped up. 
 
314 
 
 NEGLIGENCE IN THE USE OF HORSES, ETC. 
 
 Where no 
 
 negligence on 
 the part of the 
 defendant. 
 
 Lawdeducible 
 from these 
 decisions. 
 
 Abbott V. 
 Macfie, 
 
 His misconduct bears no proportion to that of the defen- 
 dant which produced 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" (r). 
 
 In a case in which a child three years old strayed upon 
 a railway, and had its leg cut off by a passing train, it 
 was held that in the absence of any evidence to show any 
 negligence on the part of the Company, they were not 
 responsible for the injury {x). 
 
 The law then deducible from these decisions is, that 
 where there is only so much negligence and so little ordi- 
 nary care on the part of the child, as it is natural the child 
 should possess, if negligence, and a want of ordinary care, 
 be shown by the defendants, the child is entitled to recover. 
 But if no negligence, and no want of ordinary care, be 
 proved against the defendants, the child is not entitled to 
 recover. 
 
 But in a more recent case it was held by the Court of 
 Exchequer (//), that the contributory negligence of an 
 infant has the same effect in disentitling him to maintain 
 an action as that of an adult. For, in a case in which the 
 defendants placed the shutter of their cellar against the 
 wall of a public street, and the dress of a child, who was 
 playing in the street and jumping off the shutter, caught 
 the corner of the shutter, which fell upon and injured 
 him, it was held that the defendants were not liable to 
 an action, and Pollock, C. B., said, "Had the plaintiff 
 been an adult, it is clear that he could maintain no 
 action ; he voluntarily meddled for no lawful purpose 
 with that which, if left alone, would not have hurt 
 him ; he would therefore, at all events, have contributed 
 by his own negligence to his damage. We think that the 
 fact of the plaintiff being of tender years makes no differ- 
 ence. His touching the flap was for no lawful purpose, 
 and if he could maintain the action, he could equally do 
 so, if the flap had been placed inside the defendant's 
 premises within sight of the child. As far as the child's 
 act is concerned, he had no more right to touch the flap 
 
 (r) Lynch v. Ktirdin, 1 Q. B. 33. 
 See also the case of L>jgo v. Xcivbolf, 
 y Ex. 302. 
 
 [x) Singleton v. Eastern Counties 
 Railivmj Co., 7 0. B., N. S. 287. 
 
 (y) Abbott V. Macfii; 33 L. J., 
 Ex. 177. See also Mangan \. At- 
 terton, L. E., 1 Ex. 239; 4 H. & C. 
 388. 
 
NEGLIGENT DRIVING. 315 
 
 for the purpose for which, he did touch it than he would 
 have had it been on the defendant's premises." This 
 decision presents a different view of the law from the 
 foregoing ones, inasmuch as it appears to rest upon the 
 fact that the contributive act of the child was an unlawful 
 one, rather than upon the absence of proof of negligence or 
 of a want of ordinary care upon the part of the defendants. 
 But it is questionable whether a decision not only at 
 variance with the current of authority, but also containing 
 no allusion to the law as deducible from the former cases, 
 can be entitled to great weight (2). 
 
 If a person using ordinary care is injured by falling over A heap left on 
 a heap on a Highway, the person who left it there is liable. *^® Highway. 
 
 But a person who is injured by an obstruction, against Opportunity 
 which he may fall on a Highway, cannot maintain an of seeing the 
 action, if it appear that he was riding with great violence 
 and want of ordinary care, without which he might have 
 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 " {a). 
 
 The opportunity, however, of seeing Stones during the Running over 
 day is no defence to an action for damage caused by stones at 
 running over them at night (b). ^^^ 
 
 If a person leaves the Highway and sustains injury. Leaving the 
 he cannot recover any damages. Thus, where a person Highway, 
 stepped aside at night from a Highway, 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 Highway, and, 
 in summing up, directed the Jury that the first question 
 for them to consider was, whether the excavation made 
 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 (c) . 
 
 (r) And see observations of (A) Per Eolfe, B., Grieve v. 3['d- 
 
 Cockburn, C. J., in Clark v. to)i, Carlisle Spr. Ass. 1850. 
 Chambers, L. R., 3 Q. B. D. 338, («) Firth v. Ackroyd, before Mr. 
 
 339 ; 47 L. J., Q. B. 427. Justice Cresswell, York Spr. Ass. 
 
 {a) See Biitterfehl v. Forrester, 11 March 10, 1853. 
 East, Gl. 
 
316 
 
 NEGLIGENCE IN THE TSE OF HORSES, ETC. 
 
 Excavation a 
 
 public 
 
 nuisance. 
 
 Trespasser 
 may maintain 
 an action. 
 
 True test of 
 legal liability. 
 
 Owners of 
 private ways 
 may be liable 
 for negli- 
 gence. 
 
 But when the newly-made and unfenced excavation 
 for a house adjoins an immemorial public way, which is 
 found by the Jury to render the way unsafe to those who 
 use it with ordinary care, it is a public nuisance, though 
 the danger consists in the risk of accidentally deviating 
 from the road ; for the danger thus created may reason- 
 ably deter prudent persons from using the way, and thus 
 the full enjoyment of it by the public is, in effect, as 
 much impeded, as in the case of an ordinary nuisance to 
 a highway {(/). And a private injury arising from a 
 j)ublic nuisance is the subject-matter of an action for 
 damages {e) . 
 
 It by no means follows that, because the person in- 
 jured is a trespasser on the land at the time the injury 
 was sustained, he cannot maintain an action. A tres- 
 passer is liable to an action for the injury which he does ; 
 but he does not forfeit his right of action for an injury 
 sustained (_/). 
 
 The proper and true test of legal liability in these cases 
 is, whether the excavation be substantially adjoining the 
 way. When an excavation is made adjoining a public 
 way, so that a person walking on the public way might,, 
 by making a false step, or being affected with sudden 
 giddiness, or, in the case of a Horse or Carriage, who 
 might by the sudden starting of a Horse be thrown into 
 the excavation, it is reasonable that the person making 
 such an excavation should be liable for the consequences. 
 But it would not be reasonable that he should be liable for 
 the consequences, when the excavation is made at some 
 distance from the way, and the person falling into it 
 would be a trespasser upon the defendant's land, before he 
 reached it [e) . 
 
 But it is not only when injury results to persons using 
 a public way from the negligence of adjoining proprietors, 
 that an action lies. It lies also against the owner of a 
 private way for injury to persons lawfully, and by his 
 permission, using it, if caused by the negligence of his 
 servants, and if not arising from the risks attendant on 
 the ordinary nature of the business carried on, as where 
 
 {d) Barnes v. Ward, 9 C. B. 392; 
 Sadlei/ V. Ta7jlor, L. R., 1 C. P. 
 53. 
 
 (e) Hardcastle v. South Yorkshire 
 JRaibcai/ Co., 28 L. J., Ex. 139. 
 See also Hounsell v. Smyth, 7 C. B., 
 N. S. 731 ; Benjamin v. Storr, L. R., 
 
 9 C. P. 400; 43 L. J., C. P. 162; 
 30 L. T., N. S. 362; 22 W. R. 
 631. 
 
 (/') Sadler v. Hcnloch, 24 L. J., 
 Q. B. 138; Blahe v. Thirst, 2 H. & 
 C. 20; Butler \. Hunter, 7 H. k N. 
 826. 
 
NEGLIGENT DRIVING. 317 
 
 the injury was caused by negligently lowering goods 
 from the warehouse, under which the private way 
 passed (//). 
 
 In Clarke v. Chambers (Ji) the defendant, who was in Even where 
 the occupation of certain premises abuttino: on a private ^}^^?-^J caused 
 
 1 •/• • ~i c I ^ • ^ ^ • byintervenmsT 
 
 road consisting oi a carriage and footway, which premises act of third 
 he used for the purposes of athletic sports, had erected party. 
 a barrier across the road to prevent persons driving 
 vehicles up to the fence surrounding his premises and 
 overlooking the sports. In the middle of this barrier was 
 a gap, which was usually open for the passage of vehicles, 
 but which, when the sports were going on, was closed by 
 means of a pole let down across it. It was admitted 
 that the defendant had no legal right to erect this bar- 
 rier. Some person, without the defendant's authority, 
 removed a part of the barrier armed with spikes, com- 
 monly called cJieraux-de-friac, from the carriage-way where 
 the defendant had placed it, and put it in an upright 
 position across the footpath. The plaintiff, on a dark 
 night, was lawfully passing along the road on his way 
 from one of the houses to which it led. He felt his way 
 through the opening in the middle of the barrier, and 
 getting on the footpath was proceeding along it when his 
 eye came in contact with one of the spikes of the cJtcvanx- 
 de-frise and was injured. It was not suggested that the 
 plaintiff was guilty of any negligence contributing to the 
 accident, and the Jury found that the use of the chevaux- 
 de-frise in the road was dangerous to the safety of the per- 
 sons using it. It was held, that the defendant, having un- 
 lawfully placed a dangerous instrument in the road, was 
 liable in respect of injuries occasioned by it to the plaintiff, 
 who was lawfully using the road, notwithstanding the fact 
 that the immediate cause of the accident was the inter- 
 vening act of a third party in removing the dangerous 
 instrument from the carriage-way (A) . 
 
 Although where a Contractor does what he contracts to Liability of 
 do, the act of the employed is the act of the employer ; yet Contractor. 
 where the act to be done is lawful, the Contractor is liable 
 for anything done negligently, or beyond his contract {i). 
 But a Contractor lawfully employed to construct a sewer 
 under a road, is not liable for injury caused to an in- 
 
 io) Gallagher v. Humphcry, 6 L. 38 L. T., N. S. 454. 
 
 T., N. S. 684. (0 Ellis v. Sheffield Gas Co., 23 
 
 [h) Clark v. Chambers, L. R., 3 L. J., Q. B. 42; Gray v. Fiillen, 32 
 
 Q. B. D. 327; 47 L. J., Q. B. 427; L. J., Q. B. 169. 
 
318 
 
 NEGLIGENCE IN THE USE OF HORSES, ETC. 
 
 Where there 
 are several 
 ways of doing 
 a thing. 
 
 Liability of an 
 employer. 
 
 What is the 
 question in 
 such cases. 
 
 Drain re- 
 pau'ed by an 
 ordinary but 
 sldlful 
 labourer. 
 
 dividual, through a hole having formed in the roadway 
 from the natural subsidence of the ground, the work 
 having been properly completed by the defendant {k). 
 
 So, if a man employs another to do a thing, and there 
 are several ways of doing it, one criminal and another 
 innocent, and he does it in a criminal manner, the em- 
 ployer is not liable (/). 
 
 If a Contractor, however, is employed to do an unlawful 
 act, the employer is liable, because in such case the act of 
 the employed is the act of the employer. Therefore 
 where the defendants had employed a Contractor to open, 
 without legal authority, the Streets of Sheffield, and the 
 plaintiff was injured by the rubbish, it was held that this 
 being the act from which the injury arose, the defendants 
 were liable {ui). And where a duty is imposed on the 
 defendant by common law (ii), or by a statute (o), he 
 cannot excuse himself by throwing the blame on his 
 Contractor. 
 
 The question in such cases is, whether the injury was 
 the act of the party as the employer's servant, or in the 
 character of Contractor ; because in the first case the 
 employer would be liable to an action, and in the second 
 he would not {p). And the test applicable to the de- 
 termination of this fact is whether the employer has any 
 control over the persons employed as to the manner in 
 which their work should be performed {q). 
 
 Thus the defendant with the consent of the owner of 
 the soil and the surveyor of the district, emj)loyed P., who 
 was an ordinary labourer, but nevertheless a person par- 
 ticularly skilled in the construction of drains, to cleanse a 
 drain, which ran from the defendant's garden under the 
 public road, and paid P. five shillings for the job. The 
 defendant had never before employed P., and did not in 
 any way interfere with or direct him in doing the job. 
 
 {k) m/ams V. Webster, L. R., 2 Q. 
 B.264; ■L.E,.,4Q.B.138— Ex.Ch. 
 
 (/) Peachei/ v. lioland, 13 C. B. 
 182. See, too, Cleveland v. Spie?; 16 
 G. B., N. S. 399. 
 
 {»>) Ellis V. Sheffield Gas Co., 23 
 L. J., Q. B. 42. And see Whitclcij 
 V. Fvpjyer, L. E., 2 Q. B. D. 276 ; 
 46 L. J„ Q. B. 436; 36 L. T., N. 
 S. 588; 25 W. R. 607. 
 
 («) Tarry v. Ashton, L. E,., 1 Q. 
 B. D. 314 ; 45 L. J., Q. B. 260 ; 
 34 L. T., N. S. 97; 24 W. R. 581. 
 
 See also Bower v. Peaie, L. R., 1 
 Q. B. D. 321; 45 L. J., Q. B. 446; 
 35 L. T., N. S. 321. 
 
 (o) Hole V. Sittinghoiirne Railway 
 Co., 6 H. & N. 488; 30 L. J., Ex. 
 81. 
 
 [p) Knight v. Fox, 5 Ex. 725 ; 
 Overton v. Freeman, 21 L. J., C. P. 
 52. 
 
 [q) Sadler v. Uenloek, 24 L. J., 
 Q. B. 138; Blake v. Thirst, 2 H. & 
 C. 20 ; Butlers. Hunter, 7 H. & N. 
 826. 
 
NEGLIGENT DRIVING. 319 
 
 But it was held tliat the relationship of master and servant 
 had been established between the defendant and P., so as 
 to render the defendant liable for an injury occasioned to 
 the plaintiff, whilst riding on the public road, by reason 
 of the negligent manner in which P. had left the soil of 
 the road over the drain, because P. was not a person exer- 
 cising the independent business of making and repairing 
 drains, but only a labourer chosen by the defendant in 
 preference to any other person (r). 
 
 But in a case in which the defendants were employed by Stones left 
 A. to pave a district, and contracted with B. to pave one J^yaSub- 
 of the Streets, and 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 plaintiff was in- 
 jured by falling over these stones ; it was held that, as no 
 personal interference of the defendants with, or sanction of, 
 the work of laying down the stones was proved, the de- 
 fendants were not liable (■>>•). 
 
 When a Surveyor of Highways has been ordered by a Statutory 
 Vestry to do certain works on a Highway, and during the ^}^^^^; » 
 periormance of tliose works an accident occurs m conse- Highways, 
 quence of the road being left in a dangerous condition, the 
 Surveyor is guilty of neglect of a statutory duty, under 
 5 & 6 Will. 4, c. 50, s. 56, and will be liable in an action 
 for damage, notwithstanding that he has contracted with a 
 third party for supplying the necessary labour, and has not 
 personally interfered with the work (/) . 
 
 And where an action on the Case for Negligence was Performance 
 brought against A. by B., a Car proprietor, for damage of an ordinary 
 occasioned to a vehicle of the latter, in consequence of a ^x\tj. 
 heap of rubbish having been left in a Street, near the 
 dwelling-house of A., by a man employed by him to clear 
 out his ashpit, and 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 by the Irish Court 
 of Queen's Bench, that the subject-matter of the contract 
 
 (r) Sadler v. Hcnhck, 24 L. J., see Wlhon v. Mem/, L. E.., 1 H. 
 
 Q. B. 138 ; Blake v. Thirst, 2 H. & L. 326, 341 ; and Roscoe's N. P. 
 
 C. 20 ; Butler \. Sunter, 7 H. & N. 14th ed. 689. 
 
 826. {t) Taylor v. Greenhalgh, 24 W. 
 
 (s) Overton Y. Freeman, 21 L. J., R. 311 — C. A. ; reversing L. E., 
 
 C. P. 52 ; Gray v. Tullen, 32 L. J., 9 Q. B. 487 ; 43 L. J., Q. B. 168 ; 
 
 Q. B. 169 ; this latter case was re- 31 L. T., N. S. 184 ; 23 W. R. 4 ; 
 
 versed in the Exchequer Chamber, and see Pendleburij v. Greenliahjh, 
 
 34 L. J., Q. B. 265; but the L. R., 1 Q. B. D. 36; 45 L. J., 
 
 reasoning on which the decision Q. B. 3; 33L.T., N. S. 372; 24 "W. 
 
 was founded has been disapi^roved ; R. 98 — C. A. 
 
320 NEGLIGENCE IN THE USE OF HORSES, ETC. 
 
 being the performance of an ordinary domeHflc duty, the 
 defendant was liable for the injury sustained {u). 
 Manure left In another case, some Manure left on a Highway for 
 
 on a road. ^ ^^^^ ^^^ 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 falling 
 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 w^ho left it was responsible (.r). 
 With regard If in the execution of works authorized by Act of Par- 
 cutTd under^" li^ment damage be sustained, and the Act provides a special 
 Local Acts. mode in which compensation for such damage may be 
 recovered, no action will lie for it. But this only relates 
 to works carefully and skillfully executed, and if there be 
 a want of proper skill on the part of those executing the 
 works an action for the negligence, to recover damages for 
 the injury thus sustained, will lie (//). 
 Both parties to 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 down 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 driver and to that aIo)ie, before they 
 could find a verdict for the plaintifi^ ; for if they thought 
 that it was occasioned in a)iy degree by the improper con- 
 duet of the plaintiff in crossing the road in an incautious 
 and imprudent manner, they must find their verdict for 
 the defendant (z) . And where an action was brought for 
 an injury to the plaintiff's Chaise by the defendant's Car- 
 riage, Mr. Justice Alderson left it to the Jury to say 
 whether the injury was occasioned by Negligence on the 
 part of the defendant's servant, without any Negligence 
 on the part of the plaintiff himself ; for that if the plain- 
 tiff's Negligence in any way concurred in producing the 
 injury, the defendant would be entitled to the verdict {a). 
 
 {/() M'Kcon V. Bolton, 3 Ir. Jur. sioncrs, 33 L. J., Q. B. 296. 
 288 (Q. B. Ir.). (--) ITaickuis v. Cooper, 8 C. & P. 
 
 (.r) Gassiot v. Carpmael, 19 L. T. 473. 
 64, 94. {fi) Tluchu-dl v. JTilmi, Bart., 5 
 
 {!/) Clothier v. Webster, 31 L. J., C. & P. 375. 
 C. P. 316; Ohrli!/ y. Bydc Commis- 
 
 blame. 
 
NEGLIGENT DRIVING. 321 
 
 So, also, if a person sees another Carriage 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 (b). 
 
 In an action brought by an infant plaintiff against a Identification 
 Eailway Company for an iniury from an accident, which of child with 
 was caused by the joint negligence of the defendants and change of it. 
 the grandmother of the child, who had charge of it, the 
 child being unable to take care of itself, it was held by 
 the Exchequer Chamber, affirming the judgment of the 
 Court of Queen's Bench, that the child could not maintain 
 an action against the Company, as a comj^lete identification 
 was constituted between the plaintiff and the party whose 
 negligence contributed to the damage (c). 
 
 In the case of Tliorogood v. Brijan [d), where a person Identification 
 was run over and killed by an Omnibus which was racing, of passenger 
 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 deceased, it was 
 hold that the deceased having trusted the party by selecting 
 the particular conveyance, he had so far identified himself 
 with 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 clu'eetly caused the injury ; 
 and that this was in accordance with the opinion expressed 
 by the Court of Exchequer in Bridge v. TJie Grand Junction 
 llaihcay Company {e) . 
 
 Upon this last case the following remarks are made Remarks in 
 in Smith's Leading Cases :— " If two drunken Stage f^J^'Sse^^^*^" 
 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 inconceivable 
 that each set of passengers should, by a fiction, be identi- 
 fied with the Coachman who drove them, so as to be re- 
 stricted for remedy to actions against their own driver or 
 his employer {/). And "why in this particular case both 
 the wrongdoers should not be considered liable to a person 
 free from all blame, not answerable for the acts of either 
 of them, and whom they have both injured, is a question 
 
 (i) See Seed v. Tate, post, p. 328. 130. 
 
 (c) Waite v. North-Eastern Rail- {e) Bridge v. The Grand Junction 
 
 way Co., E. B. & E. 719. Hailway Co., 3 M. & W. 244. 
 {d) Thorogood v. Bryan, 8 C. B. (/) 1 Sni. L. C, 8th ed. 315. 
 
 O. Y 
 
822 
 
 NEGLIGENCE IN THE USE OE HOUSES, ETC. 
 
 Power of 
 selection. 
 
 Altogether an 
 Accident. 
 
 Running over 
 a person at 
 night. 
 
 ■wliicli seems to deserve more consideration tlian it received 
 in the ease of TJiorogood v. BrijcDi" {[/). 
 
 And indeed it seems absurd to say tliat the Driver of 
 an Omnibus is the servant of the passenger on account of 
 his " selecting the particular conveyance," An omnibus 
 is a carriage ] lying 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 Parliament, 
 tlie passenger in no case being able either to alter or 
 modify the regular routine of the Driver's employment. 
 And it would be idle to say that a passenger 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 (//). Thus, where an action of 
 Trespass was brought for injury done to a Horse by a 
 Pony and Chaise running against it, the plaintiff called 
 witnesses who said they 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, w'hen a 
 Punch and Judy show coming by frightened the Pony, 
 which ran away, and almost pulled down the defendant's 
 wife while she tried to hold it in, and she was obhged 
 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 ineritahle 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 Yan 
 and a Plorse on some errand by the defendant, with 
 
 (r/) 1 Sm. L. C, 8th ed. 316; and 
 see also Child v. Ileum, L. E., 9 
 Ex. 17G; 4;)L. J., Ex. 100. 
 
 ill) Per Alderson, J., TlueJciccll 
 V. Wilson, 5 C. & P. 37.5. 
 
 (i) Goodman v. Taylor, 5 C. & P. 
 410. 
 
NEGLIGENT DRIVING. 323 
 
 directions to bring back witb bim anotber Horse, wbicb 
 bad been left on tbe road. Wben tbe servant obtained 
 possession of the second Horse, wbicb seemed to bave 
 been in tbe babit of following the Van witbout being 
 tied, be gave a boy permission to ride bim. As tbe ser- 
 vant drove on, be came upon tbe plaintiff wbo was re- 
 turning borne late at nigbt witb a band-barrow, and, 
 seeing bim, be turned bis Horse's bead out of bis direct 
 line to avoid bim. Tlie boy and Horse bebind, bowever, 
 went on witbout noticing tbe plaintiff, and tbe conse- 
 quence was tbey both fell over bim and severely injured 
 bim. On tbe trial Cbief Baron Pollock nonsuited tbe 
 plaintiff, being of opinion tbat tbe defendant was not 
 liable for this, and ruled tbat tbe declaration was not 
 supported, as tbe Horse wbicb did tbe injury was not 
 conducted or driven by tbe servant of tbe defendant. 
 And tbe Court of Exchequer afterwards beld tbat tbe 
 Chief Baron's ruling was correct, and that tbe facts clearly 
 showed that tbe injury sustained by the plaintiff was tbe 
 result of the purest accident {k). 
 
 This was held to be the case, where the defendant's Where it is 
 Horse, being frightened by the sudden noise of a butcher's the resuitof a 
 cart, which was driven f m-iously along tbe street, became ^^ ^ Horsef ^ 
 ungovernable, and plunged the shaft of a gig into the 
 breast of the plaintiff's Horse (/). So, too, where a Horse 
 ridden by the defendant was frightened by a clap of 
 thunder, and ran over tbe plaintiff, wbo was incautiously 
 standing witb others in the carriage-road («?). 
 
 And in the case of Hammack v. White {n), in which the iTammacJcx. 
 defendant bought a Horse at Tattersall's, and the next ^^''"^^• 
 day took him out to try bim in Finsbury Circus, a much- 
 frequented thoroughfare ; and from some unexplained 
 cause the Horse became restive, and notwithstanding the 
 defendant's well-directed efforts to control him ran upon 
 the pavement, and killed a man, it was held that these 
 facts disclosed no evidence of negligence, which the Judge 
 was warranted in submitting to the Jury. And Erie, 
 C. J., said, " I am of opinion that the plaintiff in a case of 
 this sort is not entitled to bave his case left to the Jury, 
 unless he gives some affirmative evidence that there has 
 been negligence on the part of the defendant. The sort 
 
 (/;) Bird v. Hharpc, Ex. Nov. 5, (jh) Gibbons v. Tipper, 1 Ld. 
 
 1853. Rayra. 38. 
 
 (/) Walccman v. Robinson, 1 Bing. («) Ilammncic v. Wliitc, H C. B., 
 
 213. N. S. 588. 
 
 y2 
 
324 
 
 NEGLIGEXCE IN THE USE OF HORSES, ETC. 
 
 of negligence imputed here is either that the defendant 
 was unskilful in the management of the Horse, or im- 
 prudent in taking a vicious animal, or one with whose 
 propensities or temper he was not sufficiently acquainted, 
 into a populous neighhourhood. The evidence is, that the 
 defendant was seen riding a Horse at a slow pace, that the 
 Horse seemed restless and the defendant was holding the 
 reins tightly, omitting nothing he could do to avoid the 
 accident ; but that the Horse swerved from the roadway 
 on to the pavement, where the deceased was walking, and 
 knocked him down, and injured him fatally. I can see 
 nothing in this evidence to show that the defendant was 
 unskilful as a rider or in the management of a Horse. 
 There is nothing which satisfies my mind affirmatively that 
 the defendant was not quite capable of riding so as to justify 
 him in being with his Horse at the place in question. It 
 appears that the defendant had only bought the Horse 
 the day before, and was for the first time trying his new 
 purchase, — using his Horse in the way he intended to use 
 it. It is said that the defendant was not justified in 
 riding in that place a Horse whose temper he was unac- 
 quainted with. But I am of opinion that a man is not 
 to be charged with want of caution because he buys a 
 Horse without having had previous experience of him. 
 There must be Horses without number ridden every day 
 in London of whom the riders know nothing. A variety 
 of circumstances will make a Horse restive. The mere 
 fact of restiveness is not even prima facie evidence of 
 negligence" (o). 
 Manzoni v. And where a Horse drawing a Brougham under the 
 
 ou(/ as. ^^^^ ^£ ^j^g defendant's coachman in a public street 
 
 suddenly, and without any explainable cause, bolted, and, 
 notwithstanding the utmost efi'orts of the driver to control 
 him, swerved on to the footway and injured the plaintiff, it 
 was held that there was no evidence of negligence to go to 
 the Jury : and it was also held, that the fact that the 
 Horse had cast a shoe shortly after he bolted, and that the 
 driver did not under the circumstances in which he was 
 placed call out or give any warning, did not alter the 
 case {j)). 
 Horse run- J^ all cases, therefore, where a Horse riois away and 
 
 nmgaway, inflicts an injury, if the rider or driver have not acted in 
 such a manner as would lead a Jury to suppose that his 
 
 (o) Hammack v. White, 11 C. B., C. P. D. 145; 50 L. J., C. P. 289; 
 N. S. 588. upholdiiitr Hnnunark v. Whiti; kIiI 
 
 ( p) ]\r(inznni y. Bnuf/laa, L, R., 6 foq). 
 
NEGLIGENT DRIVING. 325 
 
 conduct must liave contributed to the accident, he is not 
 answerable {q). 
 
 But the rule that a person is not answerable for injury Qualification 
 resulting from circumstances over which he has no control of I'^iie- 
 admits of this qualification, namely, that if a person is 
 aware beforehand that the circumstances in which of his 
 own free will he is about to place himself, will put him in 
 a position over which he has no control, and in which, he 
 will probably cause injury to others, he will then be an- 
 swerable for an injury so caused ; thus, if in the case 
 quoted above of Hanimack v. White, the defendant had 
 been proved to have known beforehand that the Horse was 
 vicious and unmanageable (/•), he would have been held 
 responsible. So, also, in Simson v. London General Omnibus 
 Compel n// («), where a passenger in an Omnibus was injured 
 by a blow from one of the Horses, which had kicked 
 thi'ough the front panel of the vehicle, and there was no 
 evidence on the part of the passenger that the Horse was 
 a kicker ; but it was proved that the panel bore marks of 
 other kicks, and that no precaution had been taken by the 
 use of a kicking strap or otherwise against the possible 
 consequences of a Horse striking out, and no explanation 
 was offered on the part of the owner of the Omnibus : — It 
 was held that there was evidence of negligence proper 
 to be submitted to a Jury. 
 
 The proof of negligence must be affirmative. Therefore Proof of neg- 
 where there is a perfectly even balance of evidence there is I'^^S?*^ ™?-^!' 
 no negligence. Thus, in the case of Cotton v. Wood (t), 
 the plaintiff's wife, on a dark night, and in a snowstorm, 
 proceeded slowly, accompanied by another female, to cross 
 a crowded thoroughfare, whilst the defendant's Omnibus 
 was coming up on the right side of the road, and at a 
 moderate pace. There was abundant time for the women 
 to have got safely across, and they had got so far across 
 as to have passed in front of the Omnibus, when they were 
 alarmed by the approach of another vehicle from the 
 opposite direction, and turned back ; the result of which 
 was that the plaintiff's mfe was knocked down and run 
 over by the Omnibus, and was so injured that she died. 
 
 (q) See ante, Bex v. Timmins, 7 597. 
 C. & P. 500 ; and see Holmes v. (s) L. R., 8 C. P. 390; 42 L. J., 
 
 Mather, L. R., 10 Ex. 261 ; 44 L. C. P. 112; 28 L. T., N. S. 500 ; 
 
 J., Ex. 170; 33L. T., N. S. 361. 21 W. R. 595. 
 
 (r) See judgment of WiUes, J., (t) Cotton v. Wood, 8 C. B.,]Sr. S. 
 
 JIammack v. Wldte, 11 C. B.,N. S. 568. 
 
326 
 
 NEGLIGENCE IN THE USE OF HORSES, ETC. 
 
 Where evi- 
 dence is 
 eqiially con- 
 sistent with 
 neglig-ence 
 and no negli- 
 srence. 
 
 The only circumstance wliicli was at all suggestive of neg- 
 ligence on the part of the defendant was that, though he 
 saw the women cross in front of his Omnibus, he had at 
 the moment when they turned back looked round to speak 
 to the conductor, and therefore was not aware of their 
 danger, until warned by the cry of a bystander, when it 
 was too late to avert the mischief. 
 
 It was held that there was in this case no proof of 
 negligence on the part of the defendant, for it w^as not 
 shown that there existed some duty owing from the de- 
 fendant to the plaintiff, of which there had been a breach. 
 And Erie, 0. J., said, " Where it is a perfectly even 
 balance upon the evidence whether the injury complained 
 of has resulted from the want of proper care on the one 
 side or on the other, the party who founds his claim upon 
 the imputation of negligence fails to establish his case." 
 " One of the plaintiff's witnesses stated that the driver was 
 looking round at the time to speak to the conductor. 
 That clearly would be no affirmative proof of negligence. 
 The man was driving on his proper side, and at a proper 
 pace. As far as the evidence goes, there appears to me 
 just as much reason for saying that the plaintiff's wife 
 came negligently into collision with the defendant's Horses 
 and Omnibus as for sajdng that the collision was the residt 
 of negligence on the part of the defendant's servant." 
 "A scintilla of evidence, or a mere surmise that there may 
 have been negligence on the part of the defendants, 
 clearly would not justify the Judge in leaving the case to 
 the Jury(^^). There must be evidence upon which they 
 might reasonably and properly conclude that there was 
 negligence." " The very vague use of the term negligence 
 has led to many cases being left to the Jury in which I 
 have been utterly unable to find the existence of any legal 
 duty, or any evidence of a breach of it." 
 
 And in the same case (,r) "Williams, J., said, " There 
 is another rule of the law of evidence, which is of 
 the first importance, and which is fully established in all 
 the Courts, viz., that where the evidence is equally con- 
 sistent with cither view, — with the existence or non- 
 existence of negligence, — it is not competent to the Judge 
 to leave the matter to the Jury." 
 
 («) Quoting from Williams, J., 
 in Toomcy v. London, Brighton and 
 South Coast Railway Co., 3 C. B., 
 N. S. 146 ; and see Cornman y. 
 
 Eastern Counties Eailicai/ Co., 4 H. 
 &N. 781. 
 
 (.r) Cotton V. IFood, 8 C. B., N. S. 
 568, ante, p. 32.5. 
 
NEGLIGENT DRIVING. 327 
 
 So, in a case in which the defendant's Horse, being on "Wlien a Horse 
 a highway, kicked the pLaintiff, a child Avho was pLaying -"tancling in a 
 there. There being no evidence to show how the Horse kifkedTchild. 
 got to the spot, or that the defendant knew that he was 
 there, or that the defendant knew that he was accustomed 
 to kick, or that the Horse was accustomed to kick, or what 
 induced him to kick the child, it was held that there was 
 no evidence from which a Jury would be justified in in- 
 ferring that the defendant had been guilty of actionable 
 negligence ( //) . 
 
 In Abbott V. Freeman iz), the defendant was the pro- Horse kicking 
 prietor of a yard and premises used for the sale of Horses, at Sale. 
 The plaintiff attendee! a sale, and was walking up the 
 yard behind a row of spectators, who were watching a 
 Horse then on sale. In order to show the Horse's pace, a 
 servant of the defendant led it with a halter -down a lane 
 formed by the spectators on one side, and a blank wall on 
 the other. There was no barrier between the Horse and 
 the spectators, and when the Horse was about ten yards 
 from the plaintiff, another servant of the defendant struck 
 it with a whip in order to make it trot. On being struck 
 the Horse swerved into and through the crowd, and kicked 
 and injured the plaintiff. It was a usual thing for a man 
 to be stationed with a whip at the particular point when 
 Horses where brought out for sale. There was no evidence 
 as to the kind of blow that was given, nor the character of 
 the Horse, nor how it was being led, nor that it was 
 customary to put a barrier for the protection of the public 
 in yards where Horses were being sold. The plaintiff 
 sued the defendant to recover damages for injuries caused 
 by the negligence of the defendant's servant ; and it was 
 held that there was no evidence upon which the Jury could 
 reasonably find negligence on the part of the defendant. 
 
 But there are cases in which the mere occurrence of Accident itself 
 an accident is prima feicie proof of negligence, the pre- sonietimes 
 sumption depending upon the nature of the accident, proof of neo-- 
 Thus in a case in which the plaintiff, while walking in a ligence. 
 street in front of the house of a Hour-dealer, was injured 
 by a barrel of flour falling upon him from an upper 
 window, it was held that the mere fact of the accident 
 without any proof of the circumstances under which it 
 occurred was evidence of negligence to go to the Jm-y in 
 
 0/) Cox V. Burhridrjc, 13 C. B., (;) 35 L. T., N. S. 783— C. A. 
 
 N. S. 430. Reversing 34 L. T., N. S. 544— 
 
 Ex. D. 
 
328 
 
 NEGLIGENCE IN THE USE OF HORSES, ETC. 
 
 Evidence 
 identical with 
 that requii'ed 
 for man- 
 slaughter. 
 
 As to demand 
 of particulars 
 in actions 
 for negligent 
 dii\ing. 
 
 an action against the flour-dealer, the declaration alleging 
 that the plaintilt' was injiu'ed by the negligence of the 
 defendant's servants. And Pollock, C. B., said, " There 
 are certain cases of which it may be said res ipsa loquitur, 
 and this seems to be one of them. The Courts have held 
 that from certain occurrences negligence may be presumed, 
 railway accidents, &c." {a). 
 
 It may be taken as a rule that the same evidence is re- 
 quired to establish a case of negligence as would suffice 
 to convict a man of manslaughter {b). 
 
 In an action of fort for an injury to the person, as by 
 careless driving, it is within the discretion of the Judge 
 at Chambers, upon ajDplication by the defendant on affi- 
 davit, to oid.QX p)(i^'ticulars as to the nature and extent of the 
 injuries or of the claim for compensation {c). 
 
 Right side of 
 the Eoad. 
 
 RULE OF THE ROAD. 
 
 If there be no peculiar circumstances to the contrary, it 
 is the duty of each party to keep the regular side of the 
 road. However, a person riding or driving is not hound to 
 keep his side ; but if he does not, he must use more care, 
 and keep a better look out, to avoid collision, than would 
 be necessary if he were on the proper part of the road (rf). 
 But the mere fact of a man driving on the wrong side of 
 the road is no evidence of negligent driving in an action 
 brought against him for running over a person, who was 
 crossing a road on foot {e) . 
 
 If a person driving on the wrong side of the road in the 
 darl; accidentally injures another Carriage or person, he is 
 answerable for it (_/' ) . 
 
 If a person driving a Gig on his proper side sees a Gig 
 
 son coming on comiug dowu ou the wrong side of the road, he must not 
 
 his wrons: jg^. j^imsclf be run down, but if he have time and room, 
 
 must get out of the way ; for if he does not, he cannot 
 
 bring an action and recover damages (</). 
 
 Driving on 
 the wrong 
 side in the 
 dark. 
 
 Seein 
 
 g a per- 
 
 side. 
 
 («) Byrne v. BoacUc, 33 L. J., Ex. 
 13. See also Scott v. London Dock 
 Co., 13 W. R. 410, and Kearney v. 
 London, Briyltton and South Coast 
 lictUu-a)i Co., L. R., 5 Q. B. 411 ; 
 afBrmed in Ex. Ch., L. R., 6 Q. B. 
 759. 
 
 {h) See judgments of "Williams, 
 J., and Wilde, J., llammack v. 
 White, 11 C. B., N. S. 588. 
 
 (e) Wicks V. Macnama)-a, 27 L. 
 J., Ex. 419. 
 
 (d) See Ale.i-ander v. Laidley, Ap- 
 pendix; and I'lucJcicell v. Wilson, 
 5 C. & P. 375. 
 
 (c) Lloyd V. Offleby, 5 C. B., N. S. 
 667. 
 
 (/) See Handayside v. Wilson, 
 3 C. &P. 530; Alex((nder\. Laidley, 
 Appendix ; Elvin v. Chapman, Ap- 
 pendix. See also Lcame v. Bray, 
 3 East, 593. 
 
 ('/) PerPatteson, J., Beed v. Tate, 
 Newcastle Sj^r. Ass. 1846; and see 
 
RULE or THE ROAD. 329 
 
 And where an action was brought for negligently Does not jus- 
 driving against the plaintifJ's Horse, it appeared that ^^^ ^ wanton 
 the defendant's Chaise came out of another road, and in ^^J'^^' 
 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 Ellenborough held that the circumstance of 
 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 
 would 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 {//). 
 
 And in another similar case it was held by the Court of Rule of the 
 King's Bench, that whatever might be the law of the road, ^o^.'^^ot m- 
 it was not to be considered as inflexible and imperatively 
 governing cases where Negligence was the question. In 
 the crowded streets of the Metropolis situations and cir- 
 cumstances might frequently arise where a deviation from 
 what is called the law of the road would not only be justi- 
 fiable 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 (*). 
 
 On the same principle, apparently, it has been laid down Light load 
 in the United States that a traveller on foot or on horse- meeting 
 back must give way to and, if necessary, cross the road for ^^^^^' 
 a vehicle with a heavy load (/.), and that a lightly-loaded 
 vehicle must, in like manner, give way to a heavily-loaded 
 one (/). 
 
 Though the rule of the road is not to be adhered to, if Parties meet- 
 
 Case of the Commerce, 3 Rob. Adm. N. S. 667. 
 
 Cas. 287. (/) Beach v. Parmcio; 23 Penn. 
 
 [h) Clay V. Wood, 5 Esp. 42. St. 196. 
 
 (/) Waijde V. Ladij Can; 2 D. & (/) Gricr v. Scidijjso/i, 27 Penn. 
 
 E. 256 ; Llo>/d v. Or/lebij, 5 C. B., St. 183. 
 
330 
 
 NEGLIGENCE IN THE USE OF HORSES, ETC. 
 
 ing on a 
 sudden. 
 
 Eule of the 
 Road applies 
 to Saddle 
 Horses. 
 
 Ordinary 
 
 vehicles meet- 
 ing street or 
 tramcars. 
 
 Foot pas- 
 sengers. 
 
 by departing from it an injury can be avoided, and tliere 
 is clear space enough to get out of the way, yet in cases 
 where parties meet o)i a sudden, and an injury results, the 
 party on the wrong side is answerable, unless it clearly ap- 
 pear that the party on the right side had ample means and 
 opportunity to prevent it (w?). 
 
 The rule of the road as to keeping the proper side 
 applies to Saddle Horses as well as to Carriages ; and if a 
 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 
 fm'iously on its wrong side of the road, it is the duty of 
 the driver of the Carriage to give way and avoid an acci- 
 dent, although in so doing he goes a little on what would 
 otherwise be the wrong side of the road {ii). 
 
 In America it has been held that the rule of the road 
 has no application to the meeting of ordinary vehicles with 
 street cars. The ground for such decision being, that the 
 latter cannot turn off their path, and the former should 
 turn to that side which appears, under the circumstances, 
 to be the safest without regard to the usual rule, and the 
 fact that either was on the left of the road at the time of a 
 collision, is no evidence of negligence (a). And for the 
 same reason, when a collision occiu\s between an ordinary 
 vehicle and a street car, travelling side by side, the pre- 
 sumption is that the driver of the vehicle was negligent, 
 the car being unable to turn out(^). This rule appears 
 to be dictated by common sense, and to be applicable to 
 similar cases of collision between an ordinary vehicle and a 
 tramcar in England. 
 
 The law as to Foot piassengers is laid down in the fol- 
 lowing case, where an action of Trespass was brought 
 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 persons driving 
 Carriages along the road ar£ liable if they do not take care 
 
 554. 
 
 C/iapUn V. Ilaurs, 3 C. & P. 
 
 103. 
 
 (;/) Ttirle>/ v. Thomas, 8 C. & P. 
 
 (o) Ucfjan V. E'ujlitli Aajuteltall- 
 
 tcai/ Co., 15 N. T. 380. 
 
 {p) Suijdam v. Grand St. Eailway 
 Co., 41 Barb. 305; Siegel y. Eisen, 
 41 Cal. 109. 
 
 {q) Host) V. lii/on, 5 C. & p. 407. 
 
RULE OF THE ROAD. 331 
 
 SO as to avoid driving against the Foot passengers who are 
 crossing the road ; and if a person diiviug along the road 
 cannot pnll 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 
 riage being on the wrong side of the road, I think you ^°^^ <ioes not 
 should lay it out of your consideration, as the Hule 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" (>•). 
 
 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 drive "'°''*^^^S- 
 slowly, cautiously and carefully; but it is also the duty 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 injury {s). 
 
 If there be a nuisance in a public highway, a private in- Nuisance on 
 dividual cannot of his own authority abate it, unless it does P^^^ilic lngh- 
 him a special injury, and he can only interfere with it so ^^'"^^ 
 far as is necessary to exercise his right of passing along 
 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). 
 
 A Tradesman may remove a Horse and Cart or Car- Horse and 
 riage from before his door, if it impedes his business. 1''^.^™^*] ^,^' 
 Thus if a Hackney Coach stands before a Shopkeeper's man's door, 
 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). 
 
 NEGLIGENT DRIVING BY A SERVANT. 
 
 It was formerly held that the Master was liable only When the 
 where his servant caused injury by doing a lawfal act ^^'-^^^^^^ T!^^.^ 
 ncfjJicjenthj, but not where he icilfuUij did an illegal one ; ing to former 
 and, therefore, in cases of negligent driving, where the decisions. 
 
 (r) Cotteril v. Turin/, 8 C. & P. (0 See Judgment of Court of 
 
 693. See also Llotjd v. Otjlvbi/, Queen's Beucli, JJlmcs v. Fctlcij, 
 
 5 C. B., N. S. 667. 15 Q. B. 288; Bridge v. Grand 
 
 (s) See per Pollock, C. B., 7/1/- Jiniction Railway Co., 3 M. & W. 
 
 Hams V. Richards, 3 C. & K. 82 ; 244 ; Davies v. 3Iann, 10 M. & W. 
 
 and see Boxodcn v. Sherman, Ap- 54G; Mayor of Colchester y. Brooke, 
 
 pendix. See also Cotton v. If^ood, 7 Q. B. 339. 
 8 C. B., N. S. 568. («) Slater v. Suwin, 2 Str. 872. 
 
332 
 
 NEGLIGENCE IN THE USE OF HORSES, ETC. 
 
 Liability uow 
 held to be 
 more exten- 
 sive. 
 
 Zimjms v. The 
 General Om- 
 nibus C'om- 
 paiii/. 
 
 Acts done 
 ■within em- 
 ployment and 
 for Master's 
 interest. 
 
 Servant liad the autliority of bis Master to do the par- 
 ticular act, namely, to drive along the highway, which is 
 perfectly lawful in itself, it was held by Mr. Justice 
 Patteson that the Master was chargeable, because the act 
 so authorized by him had been done negligently ; but 
 that, if the Servant drove wilfully against another, the 
 Master was not chargeable for the injury done (.r). 
 
 But this definition is not an exhaustive one, for the 
 liability of the Master extends beyond the lawful acts of 
 his Servant. And the test of his liability is, not whether 
 the acts of his Servant are illegal and wilful, or the con- 
 trary, but whether they are within the scope of the 
 Servant's employment and in the execution of the service 
 for which he is engaged {>/). 
 
 In the case of LiiupKS v. T//e Genevol Omnibus Com- 
 2ianij (i/), decided in the Exchequer Chamber, which fixed 
 and defined the law on this subject, the driver of the 
 defendant's Omnibus drove it across the road in front of 
 a rival Omnibus belonging to the plaintiff, which was 
 thereby overturned. The driver said, that he pulled 
 across the plaintiff's Omnibus, to prevent it passing him. 
 The defendants had given printed instructions to their 
 driver not to obstruct any Omnibus. 
 
 Mr. Baron Martin, before whom the case was tried, 
 directed the Jury that, "When the relation of Master 
 and Servant existed, the Master was responsible for the 
 reckless and improper conduct of his Servant in the 
 course of the service ; that if the Jury believed that the 
 defendant's driver, being dissatisfied and irritated with 
 the plaintiff's driver, acted recklessly, wantonly, and 
 improperly, but in the course of the service and employ- 
 ment, and doing that which he believed to be for the in- 
 terest of the defendants, then they were responsible ; that 
 if the act of the defendants' driver, although a reckless 
 driving on his part, was nevertheless an act done by him 
 in the course of his service, and to do that which he thought 
 best to suit the interest of his employers, and so to inter- 
 fere with the trade and business of the other Omnibus, the 
 defendants were responsible ; that the instructions given to 
 the defendants' driver by them were immaterial if he did 
 not pursue them ; but that, if the act of the defendants' 
 Servant was an act of his own, and in order to effect a pur- 
 
 [r) Lyons v. Martin, 8 A. & E. 
 515; S. C. SNev. &P. 509; and see 
 M'Mauus V. Cricket, 1 East, 106. 
 
 (//) Lhi/pus V. T/w General Omni- 
 bus Co., 1 H. & C. 526. 
 
KEGLTGENT DRIVING BY A SERVANT. 333 
 
 pose of bis own, the defendants were not responsiljlo." 
 This direction was held to be right by all the Judges with 
 the exception of Mr. Justice Wightman. 
 
 Mr. Justice Williams in the course of the argument said, If Servant 
 " If a driver in a moment of passion vindictively strikes a "vm^ictively 
 Horse with a whip, that would not be an act done in the Horse with 
 course of his employment ; but in this case the Servant his wliip. 
 was jDursuing the pm-pose for which he was employed, vh. 
 to drive the defendants' Omnibus. Suppose a Master told 
 his Servant not to drive when he was drunk, but he never- 
 theless did so, would not the Master be responsible ?" And 
 in his judgment he said : " If a Master employs a Servant 
 to drive and manage a carriage, the Master is responsible 
 for any misconduct of the Servant in driving and managing 
 it, which must be considered as having resulted from the 
 performance of the duty entrusted to him, and especially 
 if he was acting for his Master's benefit and not for any 
 purpose of his own." 
 
 Mr. Justice Willes said, with reference to the question Instructions 
 whether the injury was done by the driver in the course °f Master, if 
 of his employment, "It may be said that it was no part fmmSeriaf' 
 of the duty of the defendants' Servant to obstruct the 
 plaintiff's Omnibus, and moreover the Servant had dis- 
 tinct instructions not to obstruct any Omnibus whatever. 
 In my opinion, those instructions are immaterial. If dis- 
 obeyed, the law casts upon the Master a liability for the 
 act of his Servant in the course of his employment; and 
 the law is not so futile as to allow a Master, by giving 
 secret instructions to his Servant, to discharge himself 
 from liability. Therefore, I consider it immaterial that 
 the defendants directed their Servant not to do the act. 
 Suppose a Master told his Servant not to break the law, 
 would that exempt the master from responsibility for an 
 unlawful act done by his Servant in the course of his 
 employment ? The act of driving as he did is not incon- 
 sistent with his employment, when explained by his 
 desire to get before the other Omnibus," which desire was 
 prompted by the fact " that he was employed not only to 
 drive the Omnibus, which alone Avould not support this 
 summing-up, but also to get as much money as he could 
 for his Master, and to do it in rivalry with other Omni- 
 buses on the road." 
 
 Mr. Justice Byles, after expressing his agreement with Master liable, 
 the direction of Mr. Baron Martin, said, " The direction '^^0^^*^^'"^^ 
 amounts to this, that if a person acts in the prosecution of benefit. 
 
334 
 
 NEGLIGENCE IN THE USE OF HORSES, ETC. 
 
 Unless done 
 out of the 
 course of the 
 Servant's em- 
 ployment. 
 
 Liability of 
 Cab Pro- 
 prietor. 
 
 liis Master's business for tlie benefit of bis Master, and not 
 for the benefit of himself, the Master is liable, although 
 the act may in one sense be wilful on the part of the 
 Servant. It is said that what was done was contrary to 
 the Master's instructions ; but that might be said in ninety- 
 nine out of a hundred cases in which actions are brought 
 for reckless diiving. It is also said that the act was illegal. 
 So, in almost every action for negligent driving, an illegal 
 act is imputed to the Servant. If we were to hold this 
 direction wrong, in almost every case a driver would come 
 forward, and exaggerate his own misconduct, so that the 
 Master would be absolved. Looking at what is a reason- 
 able direction, as well as at what has been already decided, 
 I think tliis summing-up perfectly correct." 
 
 And Mr. Justice Blackburn said, with reference to the 
 act being done by the defendant when " in the coiu'se of 
 his service and emplojmient," it is " not universally true 
 that every act done for the interest of the Master is done 
 in the course of the emplojanent. A footman might think 
 it for the interest of his Master to drive the coach, but no 
 one could say that it was within the scope of the footman's 
 employment, and that the Master Avould be liable for 
 damage resulting from the wilful act of the footman in 
 taking charge of the Horses. But, in this case, I think 
 the direction given to the Jiuy was a sufficient guide to 
 enable them to say whether the particular act was done in 
 the course of the employment. The learned Judge goes 
 on to say, that the instructions given to the defendants' 
 Servants were immaterial if he did not pursue them (upon 
 which all are agreed) ; and at the end of his direction he 
 l")oints out that, if the Jiuy were of opinion ' that the true 
 character of the act of the defendants' Servant was, that 
 it was an act of his own and in order to effect a pm-pose 
 of his own, the defendants were not responsible.' That 
 meets the case which I have already alluded to. If the 
 Jury should come to the conclusion that he did the act, 
 not to further his Master's interest nor in the course of his 
 emplopnent, but from private spite, and with the object of 
 injuring his enemy, the defendants were not responsible. 
 That removes all objection, and meets the suggestion that 
 the Jury may have been misled by the previous part of the 
 summing-up." 
 
 Generally, the Registered Proprietor and the Licensed 
 Driver of a cab stand in the relation of a Master and Ser- 
 vant quoad the public, and therefore the Proprietor is liable 
 
NEGLIGENT DRIVING IJY A SERVANT. 335 
 
 for tlie loss of a Passenger's luggage tbrougli the negligence 
 of the driver (;:), or for personal injiuy to the passenger 
 or a stranger, where there is no wrongful user of the cab by 
 the driver. Thus, where a driver who had no specified 
 time for starting from or returning to the proprietor's 
 stables, made a short deviation for his own convenience at 
 the close of his day's work, and while returning to the 
 stables ; and after such deviation he was again returning 
 when he ran over and injured the plaintiff; it was held, 
 that the driver was not on an independent journey, and 
 must be considered to be in the proprietor's employ at the 
 time of the accident {a) . But the relationship of Master 
 and Servant does not necessarily exist between the proprie- 
 tor and the driver of a cab ; there is only a ■prima facie 
 presumption that such is their relation [h), which may be 
 rebutted by the circumstances of the case ; as in King v. 
 Spurr (b), where the defendant was proprietor of a cab 
 and had let it to the driver for a weekly payment, the 
 Horse, harness, and whip being provided by the driver ; 
 and it was held, that the defendant was not liable for in- 
 juries done to the plaintiff's cart and Pony owing to the 
 negligence of the driver. 
 
 Where a Master and Servant are together in a vehicle. Master and 
 and an accident occurs from which an immediate injury ?':?^^.'^'^ 
 ensues, the Master is liable, although the Servant is driving, together. 
 and there is no evidence of any interference on the 
 Master's part ; and even where the evidence on the part of 
 the defendant strictly negatives an interference, the mere 
 presence of the Master with the Servant will constitute him 
 a trespasser if the act of the Servant amount to a trespass {c). 
 So where a Carriage and Horses are hired, and the post- 
 boys are servants of the owner, and an accident ensues in 
 consequence of their Negligence, the hirer, if he sit out- 
 side and have a view of their proceedings, and do not en- 
 deavour to stop their misconduct, is a co-trespasser with 
 them (d). 
 
 A Master is liable in an action for damage resulting Servant en- 
 from the Negligence with which his Cart has been driven, *™s*^i^o t^^Q 
 
 ° ° ' rems to a 
 
 Stranger. 
 
 (r) Poivles V. Hidir, 25 L. J., 36L. T., N. S. 509 ; 25W. E,. 584. 
 Q. B. 331. See also Fowler V. Lock, {b) Seeper Bowen, J., in JiT/w^ v. 
 
 L. R., 7 C. P. 272 ; 41 L. J., C. P., S^pun; L. R., 8 Q. B. D. 104, 108. 
 99 ; 26 L. T., N. S. 476 ; and 1 & 2 (c) Chamller v. Bmir/hton, 1 Cr. 
 
 Will. 4, c. 22 ; 6 & 7 Vict. c. 86. & M. 29. 
 
 {a) Vcnables v. Smith, L. P., 2 Q. (rf) M'LauqhVm v. Prtjor, 4 Scott, 
 
 B. D. 279 ; 46 L. J., Q. B. 470; N. P. 655; 8. C, 4 M. & G. 48. 
 
336 
 
 NEGLIGENCE IN THE USE OF HuRSES, ETC. 
 
 Servant strik- 
 ing the Horse 
 of another. 
 
 Servant strik- 
 ing passenger. 
 
 Guard of 
 Omnibus 
 using imdue 
 violence to a 
 passenger. 
 
 altlioiigli it should appear that his Servant was not driving 
 at tlie time of the accident, but had cutnided the reins to a 
 Stranger who was riding with him, and who was not in the 
 Master's service {c). 
 
 If a Servant driving his Master's Carriage, in order to 
 effect some purpose of his own, icantonhj strike the Horse 
 of another person, and produce an accident, the Master 
 will not be liable. But if in order to perform his Blas- 
 ter's orders he strikes, but injudiciously, and in order to 
 extricate himself from a difficulty, that will be negligent 
 and careless conduct, for which the Master will he liable, 
 being an act done in pursuance of the Servant's employ- 
 ment. And where a Coachman, in consequence of his 
 Master's Carriage having become entangled with another, 
 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 originally from 
 the fault of the Coachman, and that as he was acting irithiii 
 the scope of his employment in endeavoming to extricate 
 himself, the Master was liable (/). 
 
 The fact that a Passenger in an Omnibus is struck by the 
 driver's whip is prinid facie evidence of negligence by the 
 driver in the course of his employment ; and even if it 
 appears that the blow was struck at the Servant of another 
 Omnibus, with whom there had been a dispute, and who 
 had jumped on the Omnibus step to get his number, it is a 
 question for the Jiuy whether the blow was struck by the 
 driver in private spite, or in supposed fm'therance of his 
 Employer's interests (g). 
 
 It was held by the Exchequer Chamber in the case of 
 Seymour v. Greenwood {h) that the Master was liable, where 
 the Gruard of an Omnibus belonging to him, in removing 
 therefrom a Passenger, whom he deemed to be di'unk, 
 dragged him out with imdue violence, and threw him upon 
 the ground, whereby he was seriously injm-ed ; for the 
 Master, by giving the Gruard authority to remove offensive 
 Passengers, necessarily gives him authority to determine 
 whether any Passenger had misconducted himseK. And 
 inasmuch as the Master puts the Gruard in his place because 
 it is not convenient for him personally to conduct the 
 
 (e) Sooth V. Mister, 7 C. & P. G6. 
 
 ( f) Per Curiam in Croft v. Alison, 
 4 B. & Aid. 592. 
 
 (g) Ward v. General Omnibus Co., 
 42 L. J., C. P. 265 ; 28 L. T., 
 
 N. S. 850— Ex. Ch., affirming the 
 decision of C. P., 27 L. T., N. S. 
 761 ; 21 W. R. 358. 
 
 {h) Sei/moicr v. Greenwood, 7 H. & 
 N. 355. 
 
NEGLIGENT DRIVING BY A SERVANT. 337 
 
 Omnibus, if tlie Guard forms a wrong judgment, the 
 Master is responsible (/). 
 
 But where a van was standing at the door of the plaintiff, Servant re- 
 from which the plaintiff''s goods were being unladen, and ^°T^°i^^^ 
 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 bos 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 defendant was not liable, as the Coach- 
 man was not acting in the employ of his Mistress, that is, 
 within the scope of his employment, at the time this matter 
 occurred [k). 
 
 If a Servant does what his Master employs him to do in Servant act- 
 a negligent, improper or round-about way, and damage is ^°^ ™P^o- 
 done, his Master is liable (/). 
 
 If a Servant diiving his Master's cart, on his Master's Making a de- 
 business, make a detour from the direct road for some ^"e^- for his 
 pm'pose of his o^vn, his Master ^vill be answerable in """^ P^^P^^®^- 
 damages for any injury occasioned by his careless driving- 
 while so out of his road (ni). Because wherever the Master 
 has intrusted the Servant with the control of the Carriage, 
 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 entrusting 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 
 own in Old Street Road, and in retiu-ning along it he 
 di-ove against an old woman and injured her {ii). 
 
 So, in Whatman \. Pearson (o), the defendant, a contractor 
 under a district board, was engaged in constructing a 
 sewer, and employed men with Horses and Carts. The 
 men so employed were allowed an hour for dinner, but 
 were not permitted to go home to dine, or leave their 
 
 («) Per Williams, J., Seymour v. (jh) Joel \. Morrison, 6 C. & P. 
 
 Grcemcood, 7 H. & N. 355. 501. 
 
 (A-) Lamb v. Lady Elizabeth Fall; («) Sleath v. Wilson, 9 C. & P. 
 
 9 C. & P. 629. 608. 
 
 (/) See per Cresswell, J., Mitchell {o) L. E., 3 C. P. 422; and see 
 
 V. Crasm-eller, 22Ij. J., CP-lOi. Burns v. Paulson, L. E,., 8 C. P. 
 
 563; 42 L. J., C. P. 302. 
 
 O. Z 
 
338 
 
 NEGLIGENCE IN THE USE OF HORSES, ETC. 
 
 Servant act- 
 ing contrary 
 to his trust. 
 
 Taking his 
 Master's 
 Horse -with- 
 out leave. 
 
 Horses and Carts. One of the men Avent home, about 
 a quarter of a mile out of the direct line of his work to his 
 dinner, and left his Horse unattended in the street before 
 his door. The Horse ran away and damaged certain 
 raihngs belonging to the plaintiff ; and it was held that it 
 was properly left to the Jury to say whether the driver was 
 acting within the scope of his employment, and that they 
 were justiiEied in finding that he Avas. 
 
 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 (p). 
 
 Thus if a Servant without his Master's leave or knowledge 
 take his Cart or Carriage when it is not wanted, and drive 
 it about for his oaati piu^poses, the Master is not answerable 
 for any injury he may do, because he has not in such case 
 intrusted him with the Cart or Carriage {q). 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 adjoining Street; on his return one 
 eveniug he got the key, and instead of going to the Mews, 
 and without the defendant's leave, he drove a fellow-servant 
 in an opposite direction, and on his way back injured the 
 plaintiff by his negligent driving ; it was held that the 
 defendant was not liable (>■). 
 
 And this is fm-ther illustrated by Storey v. AsJiton. In 
 that case the defendant, a wine merchant, sent his Carman 
 and clerk with a Horse and Cart to deliver some wine, and 
 bring back some empty bottles ; on their retm-n, when 
 about a quarter of a mile from the defendant's offices, the 
 Carman, instead of performing his duty and driving to the 
 defendant's offices, depositing the bottles, and taking the 
 Horse and Cart to stables in the neighbom-hood, was 
 induced by the clerk (it being after business hoiu-s) to 
 drive in quite another direction on business of the clerk's ; 
 and while they were thus driving the plaintiff was nm 
 over, owing to the negligence of the Carman ; it was held 
 that the defendant was not liable, for that the Carman 
 was not doing the act, in doing which he had been guilty 
 of negligence, in the com-se of his employment as a Ser- 
 
 {p) See per Cresswell, J. , MitchcU 
 V. Cnissiccllcr, 22 L. J., C. P. 10-1. 
 {'[) Joel V. Morrison, 6 C. & P. 
 
 501 ; Slcath v. Wilson, 9 C. & P. 
 608. 
 
 {)•) Mitchell V. CrasswcUer, 22 L. 
 •T., C. P. 100. 
 
NEGLIGENT DRIVING BY A SERVANT. 339 
 
 vant (s). But Cockbimi, C. J., in delivering judgment in 
 this case, said, " I think that the judgments of Maule and 
 Cresswell, J J., in Mitchell v. Crassiceller (t), express the 
 true view of the law, and the view which we ought to 
 abide bj : and that we cannot adopt the view of Erskine, 
 J., in Sleath v. Wilson {n), that is, because the Master has 
 entrusted the Servant with the control of the Horse and 
 Cart that the Master is responsible. The true Rule is, 
 that the Master is only responsible so long as the Servant 
 can be said to be doing the act, in the doing of which he is 
 guilty of negligence, in the course of his employment as a 
 Servant. I am very far from saying, if the Servant, when 
 going on his Master's business, took a somewhat longer 
 road, that, owing to his deviation, he would cease to be in 
 the employment of the Master, so as to divest the latter of 
 all liability ; in such cases it is a question of degree as to 
 how far the deviation could be considered a separate 
 journey." 
 
 The case of Eai/ner v. Mitchell {r) is another instance of Re-entering 
 a Servant acting beyond the scope of his authority. There ^^ ^^ ^" 
 a Carman, without his Master's permission, and for a 
 purpose of his own wholly unconnected with his Master's 
 business, took out his Master's Horse and Cart, and on his 
 way home negligently ran against a cab and damaged it. 
 The com"se of the employment of the Carman was, that, 
 with the Horse and Cart, he took out beer to his Master's 
 customers, who was a brewer, and in returning to the 
 brewery, he called for empty casks wherever they would 
 be likely to be collected, for which he received from his 
 Master a gratuity of Id. each. At the time of the 
 accident the Carman had with him two casks, which he had 
 picked up on his return jom-ney at a public-house which 
 his Master supplied, and for which he afterwards received 
 the customary Id. : and it was held, that the Carman had 
 not re-entered upon his ordinary duties at the time of the 
 accident, and, therefore, the Master was not liable. 
 
 And where a Master sent his Servant on an errand, and Taking the 
 he took and rode a Horse belonging to another person j^^^^iJ^er^ 
 without his Master's permission, and on his way back 
 iniiicted an injury on the plaintiff, Mr. Justice Park 
 said, "I cannot bring myself to go the length of sup- 
 
 (a) Storey v. Ashton, L. E,., 4 Q. ((/) See note ((/), ante. 
 
 B. 476; 38L.J., Q. B. 223; 17 W. (r) L. K, 2 0. P. D. 359 ; 2o W. 
 
 R. 727. R. 633. 
 
 [t) See note (>•), ante. 
 
340 
 
 NEGLIGEXCE IN THE USE OF HORSES, ETC, 
 
 No express 
 authority of 
 Master ne- 
 cessary. 
 
 Master's 
 name on the 
 Cart. 
 
 Giving an 
 address. 
 
 Action for 
 bodily liui't. 
 
 posing that if a man sends his Servant on an errand with- 
 out providing him with a Horse, and he meets a friend 
 who has one, who permits him to ride, and an injury- 
 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" (*•). 
 
 But where (//) the General Manager of the defendant, 
 a Horsedealer, had a Horse and gig of his own, which he 
 used for the defendant's business as well as his own, and 
 was allowed to keep them on the defendant's premises 
 at the defendant's expense ; and, on one occasion, the 
 Manager, on putting the Horse into the gig, told the 
 defendant that he was going to S. to collect a debt for him 
 and afterwards to see his own doctor ; and before he got 
 to S. he drove against and killed the plaintiff's Horse ; 
 it was held that there was abundant evidence to make 
 the defendant responsible, although he had not expressly 
 requested the Manager to use the Horse and Grig on that 
 occasion ; and that it is not necessary in cases of this sort 
 that there should be any express request, as the Jury 
 may imply a request or assent from the general nature 
 of the Servant's duty and employment (s). And it was 
 also held in the same case {>/) that the proper cj[uestion to 
 leave to the Jury is, whether at the time of the act com- 
 plained of, the Servant was driving on his Master's 
 business and with his authority. 
 
 If it appear that the Master holds himself out to the 
 world as the owner of a Cart by suffering his name to 
 remain painted on it, and over the door of the house of 
 business to which it belongs, an 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 {a). 
 
 "Where a Carriage strikes against another, and a person 
 who sees the transaction demands the addi^ess of the owner, 
 the Address given by a person in the Carriage is admissible 
 in evidence ; but a statement that any damages done will 
 be paid for is not so {b). 
 
 "Where a party has received a bodily hurt from negli- 
 
 (.(■) Goodman v. Koinell, 3 C. & P. 
 167. 
 
 {y) Paticn v. Rea, 26 L. J., C. P. 
 235. 
 
 {z) Turlervlll'} v. Stampe, 1 Lord 
 Eaym. 264. 
 
 {a) Stables v. Eky, 1 C. & P. 614. 
 
 [b] Beamon v. Elliee, 4 C. & P. 
 586. 
 
NEGLIGENT DRIVING 15Y A SERVANT. 341 
 
 gent driving, he may of course personally recover damages 
 for the injiuy done to him. 
 
 If a Servant, in the course of his Master's employ, Liability of 
 drives over any person and does a wilful injiuy (described Master and 
 by Martin, B., as an act of his own, and in order to effect gpectlvely^" ■" 
 a purpose of his own) (c) , the Servant, and not the Master, 
 is liable ; if the Servant, by his negligent driving, in the 
 course of his employment, causes an injmy, the Master is 
 liable ; if the Master himself is diiviug, or though not 
 actually dii\dng is sanctioning the conduct of his Servant, 
 he is liable whether the damage be the effect of negligence 
 or of a wilfid act done or sanctioned by him (d). 
 
 It is a well-established rule of law that a Servant cannot Negligence 
 ordinarily sue his Master for an iniuiT sustained thi-oug^h °* fellow- 
 the negligence of a fellow-servant (e). And a stranger 
 invited by a Servant, or one who volunteers to assist a Ser- 
 vant in his work, while engaged in giving such assistance, 
 bears the same relation to the Master as a Servant, and is 
 subject to the same disabilities in this respect (/). But a 
 person who, with the consent of a Railway Company, assists 
 in unloading goods consigned to him by their line, is not a 
 volunteer within this rule (g). 
 
 But in all cases the Master is bound to use due care in Master bound 
 the selection of competent Servants, and is liable for neg- *« ^^^ ^"^ 
 
 %■! • • 11 X 1 • o X care m selec- 
 
 ence m employing incompetent persons to his Servants ^^^^ ^^ g^j.. 
 
 and to those acting as such. Nevertheless he is not bound vants. 
 to warrant the competency of his Servants ; and in an 
 action against him for an injury done by one of his Ser- 
 vants to another, the question for the Jury is, not whether 
 the Servant was incompetent, but whether the Master exer- 
 cised due care in employing him (A). 
 
 The usual terms on which a Cab Proprietor lets a cab to Liability of 
 a driver are, that the o^vner feeds the horse, and exercises tor to IhivTr 
 
 (c) Limpus V. General Omnibus bility Act, 1880 (43 & 44 Vict. 
 
 Co., ante, p. 332. c.42) ; but that act does not extend 
 
 {d) See per Parke, B., Gordon v. to domestic or menial servants. 
 
 Rolt, 4 Ex. 366; -S'. 6'. 18 L. J., {f) I'otter \. Faulkner, 31 L. J., 
 
 Ex. 433. Q.B. 30. 
 
 {c) Tarrant v. Webb, 25 L. J., {[/) U'rlr/ht v. London and North 
 
 C. P. 261 ; Waller V. South Eastern Western RaUicaii Co., L. E., 10 Q. 
 
 Railway Co., 32 L. J., Ex. 205 ; B. 298; L. E., 1 Q. B. D. 252 ; 45 
 
 Ball V. Johnson, 13 W. R. 411 ; L. J., Q. B. 570; 33 L. T., N. S. 
 
 Wlggett v. Fox, 25 L. J., Ex. 188. 830— C. A. 
 
 The law relating to the liability of {h) Tarrant v. Webb, 25 L. J., 
 
 employers to make compensation C. P. 261 ; Waller v. South Eastern 
 
 for injui'ies suffered by workmen Bailway Co., 32 L. J., Ex. 205; 
 
 in their service is extended and Hall v. Johnson, 13 W. R. 411 ; 
 
 regulated by the Employers' Lia- Wiggett v. Fox, 25 L. J., Ex. 188. 
 
342 
 
 NEGLIGENCE IN THE USE OF HOKSES, ETC 
 
 Action by re- 
 presentatives 
 of a person 
 kiUed. 
 
 By persons 
 beneficially 
 interested. 
 
 Construction 
 to be put 
 upon the con- 
 dition in 9 & 
 10 Vict. 0. 93. 
 
 no control over the driver after lie leaves the yard, for 
 •wliictL the driver pays a fixed sum a day. It is doubtful 
 whether the relation between the parties is that of bailor 
 and bailee, or of Master and Servant (h) . But the Pro- 
 prietor is liable to the driver if he do not take reasonable 
 precautions to provide a horse reasonably fit for the pur- 
 pose, and injmy is thereby caused to the driver (i). 
 
 Formerly, if a person were killed, no action could be 
 maintained by his representatives. Now, however, Deo- 
 dands are abolished (J), and under Lord Campbell's Act (A-) 
 a party causing death is liable to an action in all cases 
 where the party injured might himself have maintained 
 one, if death had not ensued. And such action is to be 
 brought, within twelve calendar months of the death of 
 the injm-ed party, by his executor or administrator, and to 
 be "for the benefit of the Wife, Husband, Parent and 
 Child of the person whose death shall have been so caused," 
 and among whom the Damages are to be divided as the 
 Jury shall direct (/). A Child oi ventre sa mere is entitled 
 to sue under this Act on the death of its Father by negli- 
 gence (in). 
 
 This Act is amended by and is to be read with the 27 
 & 28 Vict. c. 95, called "An Act for compensating the 
 Families of Persons killed by Accident," by the first 
 Section of which, where no action has been brought within 
 six months of the death by the executor or administrator 
 of the person killed, then the action may be brought by 
 the persons beneficially interested in the result of the 
 action. The action may be sustained by a relative of the 
 deceased, though brought within six calendar months from 
 the death, unless there be at the time an executor or admi- 
 nistrator of the deceased («). By the second Section, the 
 money paid into Court may be paid in one sum, without 
 regard to its division into Shares (o). 
 
 The condition contained in Lord Campbell's Act (/r), that 
 the action is maintainable in all cases when the party in- 
 jured might himself have maintained one, if death had not 
 
 (h) Foivlcr V. Zocl; L. E., 7 C. P. 
 272 ; 41 L. J., C. P. 99 ; 26 L. T., 
 N. S. 476. But see Vcnablcs v. 
 Smith, L. E,., 2 Q. B. D. 279 ; 46 
 L. J., Q. B. 470; 36 L. T., K S. 
 509 ; King v. Simrr, L. P., 8 Q. B. 
 D. 104 ; and ante, p. 335. 
 
 (») ^S". C. on motion for second 
 new trial, 43 L. J., C. P. 394, n. ; 
 30 L. T., N. S. 800— Ex. Ch. 
 
 (/) 9 & 10 Vict. c. 62. 
 
 (k) 9 &10Vict. c. 93. 
 
 [l) 9 & lOVict. c. 93, ss. 1, 2, 3. 
 
 (w) The George and Richard, 
 L. P., 3 Adm. 466 ; 24 L. T., K 
 S. 717. 
 
 («) HoUeran v. Bagnell, L. P., 4 
 Ir. 740— C. P. D. 
 
 (o) 27 & 28 Vict. 0.95. 
 
NEGLIGENT DRIVING BY A SERVANT. 343 
 
 ensued, has reference not to the nature of the loss or injury 
 sustained, but to the circumstances under which the bodily 
 injury arose, and the nature of the wrongful act, neglect 
 or default complained of. Thus, if the deceased has by 
 his own negligence materially contributed to the accident 
 by which he lost his life, as he, if still living, could not 
 have maintained an action in respect of any bodily injury 
 thus sustained, notwithstanding there might have been neg- 
 ligence on the part of the defendants, an action cannot be 
 maintained under Lord Campbell's Act {p) . But supposing 
 the circumstances of the negligence to be such that, if 
 death had not ensued, the deceased might have brought 
 his action in respect of any injury arising to him from it, 
 his representative, or a person beneficially interested in the 
 result of the action (q) , might maintain an action in respect 
 of an injury arising from a pecuniary loss occasioned by 
 the death, although that pecuniary loss would not have 
 resulted from the accident to the deceased, if he had 
 lived (r). But in order to maintain the action the persons 
 on whose behalf it is brought must prove that during the 
 lifetime of the deceased a pecuniary advantage accrued to 
 them owing to their relationship with him. They are not 
 entitled to compensation under the statute, if the only 
 pecuniary benefit to them from his life was derived from a 
 contract which they had entered into with him (s). 
 
 In an action for negligent driving, a Pkii, which is to Plan of the 
 be put into the hands of the witnesses, should merely show locality. 
 the street, the pavement, the turnings, corners, &c., and 
 not the supposed position of the Carriages ; for if it does, 
 the Judge will not allow it to be used (t) . 
 
 An award of compensation by a magistrate against the Conviction for 
 driver of a hackney or metropolitan stage-carriage upon j^^°^f^ r^ 
 an information for furious driving under 6 & 7 Vict. c. 8G, to subsequent 
 s. 28 (the Metropolitan Police Act), is a bar to a subsequent action, 
 action against such driver's employers by the party injured 
 in respect of his injuries. And if the party accepts such 
 compensation he is barred from further proceedings, even 
 
 {p) 9 & 10 Vict. c. 93. and Rowley v. London and North 
 
 [q) 27 & 28 Vict. c. 95, s. 1, Western Raihvay Co., L. R., 8 Ex. 
 
 (r) Per Cockbum, C. J., Fi/m v. 221, Ex. Ch. ; 42 L. J., Ex. 153 ; 
 
 Great Northern Railway Co., 2 B. & 29 L. T., N. S. 180. 
 
 S. 767; and per Erie, C. J., S. C. (s) Sykes v. North Eastern Rail- 
 
 4 B. & S. 40G. See also Franklin u-ay Co., 44 L. J., C. P. 191 ; 32 L. 
 
 V. South Eastern Railway Co., 3 H. T., N. S. 199 ; 23 W. R. 473. 
 
 & N. 211; Balton v. South Eastern {f) Beamon y.Ellice, 4 C. & P. 
 
 Railway Co., 27 L. J., C. P. 227 ; 586. 
 
344 
 
 NEGLIGENCE IN THE USE OF HORSES, ETC, 
 
 Damages. 
 
 Responsi- 
 bility for ' ' all 
 possible con- 
 sequences." 
 
 Damage too 
 remote. 
 
 wliere lie did not lay the information, or, in tlie first 
 instance, request the magistrate to award compensation (/). 
 
 Grenerally 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 mis- 
 conduct {u). 
 
 But it is doubtful whether a person guilty of negligence 
 is responsible for all possible consequences of it, although 
 they could not have been reasonably foreseen or expected. 
 For instance, if a person chooses to w^alk in a crowded 
 street with an open knife tmder his coat, and 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 carries it (.r) ? 
 
 A servant, in breach of the Metropolitan Police Act 
 (2 & 3 Yict. c. 47, s. 54), washed a van in a public street, 
 and allowed the waste water to run down the gutter 
 towards a grating leading to the sewer, about twenty-five 
 yards off. In consequence of the extreme severity of the 
 weather, the grating was obstructed by ice, and the water 
 flowed over a portion of the causeway, which was ill-paved 
 and uneven, and there froze. There was no evidence that 
 the master knew of the grating being obstructed. A Horse, 
 while being led past the spot, slipped upon the ice and 
 broke its leg. It was held that this was a consequence 
 too remote to be attributed to the wrongful act of the 
 servant (//). And Bovill, C. J., said, "No doubt, one who 
 commits a wrongful act is responsible for the ordinary 
 consequences which are likely to result therefrom ; but, 
 generally speaking, he is not liable for damage which is 
 not the natm-al or ordinary consequence of such act, 
 unless it be shown that he knows, or has reasonable means 
 of knowing, that consequences not usually resulting from 
 the act are, by reason of some existing cause, likely to 
 intervene so as to occasion damage to a third person. 
 Where there is no reason to expect it, and no knowledge 
 
 {() Wright V. London General 
 Omnibus Co., L. R., 2 Q. B. D. 271 ; 
 46 L. J., Q. B. 429 ; 36 L. T., N. 
 S. 590 ; 25 W. R. 647. 
 
 {u) Rigby v. Heivitt, 5 Ex. 243. 
 
 (.r) See quaere per Pollock, C. B., 
 Greenland^. Chaplin, 5 Ex. 243, 246. 
 
 (v) Sharp V. Foivell, L. R., 7 C. 
 P. 253; 41 L. J., G. P. 95; 26 L. 
 T., N. S. 436. 
 
NEGLIGENT DRIVING BY A SERVANT. 345 
 
 in tlie person doing tlie wrongful act that such a state of 
 things exists as to render the damage probable if injury 
 does result to a third person, it is generally considered that 
 the wrongful act is not the proximate cause of the injury, 
 so as to render the wrongdoer liable to an action" (z). 
 
 A Carriage was driven against the wheel of B.'s Chaise, Injury done 
 and the collision threw a person w^ho was in the Chaise *° ^ Carnage, 
 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 entitled 
 to recover in Trespass against A. damages commensurate 
 with the whole of the injury sustained {a). 
 
 Where a Horse has been injured by negligent driving, Measure of 
 the Jury must give as Damages the expenses of curing <iamages 
 the Horse and of his keep during that time, in addition jjorse has 
 to the difference between the value of the Horse before been injured, 
 he was injured, and his value after he had 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 purj)ose of 
 being cured. At the end of that time it was ascertained 
 that the Horse was permanently 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 Fariier's, the amount of the Farrier's bill, 
 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 {h). 
 
 In an action by the personal representatives of a de- Damages 
 ceased person, to recover Damages for his death under ^q^ {^^^16*611 
 9 & 10 Vict. c. 93, the Jury, in assessing the Damages, killed, 
 are confined to injuries of which a pecuniary estimate 
 can be made, and cannot take into their consideration 
 the mental suffering or the loss of society occasioned to 
 the survivors by his death (c). 
 
 Such an action cannot be maintained without some evi- How limited. 
 dence of actual pecuniary damage (<:/), or the loss of the 
 reasonable probability of pecuniary benefit from the con- 
 tinuance of the life of the deceased {e) . 
 
 [z) See note {y), ante. 21 L. J., Q. B. 233 ; Pijm v. Great 
 
 \a) Gilbcrtson v. Richardson, 5 C. Korthern Railway Co., 4 B. & S. 
 
 B. 502. 396. 
 
 {h) Hughes V. Quentin, 8 C. & P. (d) BucTcworth v. Johnson, 4 11. & 
 
 703 ; and see Percival v. Dudgeon, N. 653. 
 Appendix. (e) Pym v. Great Northern Rall- 
 
 (r) Blake v. Midland Railway Co., way Co., 4 B. & S. 396. 
 
346 
 
 NEGLIGENCE IN THE USE OF HORSES, ETC. 
 
 Cannot be 
 given for 
 funeral ex- 
 penses. 
 
 Damages not 
 given to a 
 class but to 
 individuals. 
 
 The expectation of life of the deceased is an element 
 to be considered by the Jury in assessing Damages (/). 
 But the Jury are to give a fair compensation, and not to 
 treat the Damages on the footing of the value of an 
 annuity {g). 
 
 No Damages can be given for funeral expenses or 
 mourning. For the subject-matter of the Statute is 
 compensation for injury by reason of a relative not being 
 alive, and there is no language in the Statute referring 
 to the cost of the ceremonial of respect paid to the 
 memory of the deceased in his funeral, or in putting on 
 mourning for his loss (A) . 
 
 The remedy given by Lord Campbell's Act (?') is not 
 given to a class but to individuals ; and, therefore, on 
 the death of a person, whose income arose from land 
 and personalty independent of any exertion of his own, 
 although no portion of it was lost to his family, as a 
 whole, by his death, the action is maintainable, if, in con- 
 sequence of that death, the mode of its distribution is 
 changed to the detriment of some of the members of the 
 family, though to the advantage of others (/>•). 
 
 (/) Moivley v. London ami North 
 IFcstcrn Railway Co., L. R., 8 Ex. 
 221 ; 42 L. J., Ex. 153— Ex. Ch. 
 
 {g) Armsworth v. South Eastern 
 Eaihvaii Co., 11 Jur. 758 ; Surrey 
 Summer Assizes, 1847, cor. Parke, 
 B., cited L. R., 8 Ex. 230 ; Eoscoe, 
 
 N. P., 13tb ed. 753. 
 
 (/;) Bait on v. South Eastern liail- 
 u-aij Co., 27 L. J., C. P. 227. 
 
 (0 9 & 10 Vict. c. 93. 
 
 [k) Pym V. Great Northern Rail- 
 tcay Co., 4 B. & S. 396. 
 
( 347 ) 
 
 CHAPTER II. 
 
 FEROCIOUS AND VICIOUS ANIMALS. 
 
 JFild and Tame Animals 347 
 
 As to Animals Feroe Naturpe 
 onli/, Scienter unnecessarij . . 348 
 
 What ought to be the Liability 
 of the Person keeping them . . id. 
 
 The Athenian and Roman Laws . id. 
 
 The French Code 349 
 
 Argument in Mason v. Keeling . id. 
 
 Decision in Scotland id. 
 
 Reversed in House of Lords .... id. 
 
 In England a Scienter is held 
 necessary 350 
 
 Where a Log bites a Perso)i .... id. 
 
 Not enough to show that the Log 
 tvas of a fierce Lisposition .. id. 
 
 Report that Log had been bitten 
 by a Had Log id. 
 
 Where Log had bitten a Child. . id. 
 
 Not necessary to show that Log 
 has bitten another Man 351 
 
 Stray Log on Lefendanf s pre- 
 mises id. 
 
 Evidence of Scienter id. 
 
 Lamage done by Log to Game 
 ground of Action id. 
 
 Horse frightened by Logs, and 
 thereby damaged id. 
 
 Where a Log ivorries Sheep .... 352 
 
 Lictum of Mr . Justice Maule .. id. 
 
 Evidence of mischievous Pro- 
 pensity unnecessary under 28 
 ^ 29 Vict. c. 60 id. 
 
 " Cattle''^ includes Horses and 
 Mares id. 
 
 Proof of Ownership 352 
 
 Scienter may be p)roved against 
 
 a Corporation id. 
 
 The Logs Act, 1871 353 
 
 Where a Horse bit some other 
 
 Horses 354 
 
 Breaking Horses in a Public 
 
 Place id. 
 
 Where a Mad Bull u-ounds a 
 
 Person id. 
 
 Where a Bull singled out a Per- 
 son wearing Red id. 
 
 Where a Ram injured a Person . id. 
 Where a vicious Beast kills a 
 
 Person id. 
 
 Owner bound to secure a vicious 
 
 Animal at all events 355 
 
 He is liable to an Action for 
 
 Lamage id. 
 
 The Gist of the Action id. 
 
 Not necessary to prove Negli- 
 gence id. 
 
 An unruly Horse escaping from 
 
 a Stable id. 
 
 Turning a dangerous Animal 
 
 loose, Manslaughter id. 
 
 Turning a vicious Horse out on a 
 
 Commofi id. 
 
 Injury occasioned by a vicious 
 
 Bull id. 
 
 Shooting a Log for ivorrying 
 
 Sheep id. 
 
 Shooting a Log for worrying 
 
 Fowls 356 
 
 FEROCIOUS AND VICIOUS ANIMALS. 
 
 It is laid down tliat "there is a difference between wild and 
 things fene natune, as Lions, Bears, &c., which a man tame animals, 
 must always keep np at his peril, and beasts that are 
 mansuetcv natnrw, and break through the tameness of their 
 nature, such as Oxen and Horses {a). 
 
 («) Rex V. Huggins, 2 Ld. Kaym. 1583. 
 
348 
 
 FEROCIOUS AND VICIOUS ANIMALS. 
 
 As to Animals 
 
 fera naturce 
 only, scienter 
 unnecessary. 
 
 "What ought 
 to be the lia- 
 bility of the 
 person keep- 
 ing them. 
 
 The Athenian 
 and Roman 
 laws. 
 
 Thus in the case of Bcsozzi v. Ham's (h), the defendant 
 was owner of a bear, which he left fastened by a chain six 
 feet long, on a part of his premises accessible to persons 
 frequenting his house. The plaintiff walking past his 
 house was seized by the bear, and injured. An action 
 being brought for damages for this injury, it appeared at 
 the trial tliat there was no notice or caution, written or 
 verbal, to those visiting the premises, but the bear was 
 proved to have been always tame and docile in its habits 
 up to the time of this attack being made on the plaintiff. 
 The evidence was contradictory as to the plaintiff's know- 
 ledge of the bear being there. Mr. Justice Crowder thus 
 laid down the law to the Jury, "The statement in the 
 declaration, that the defendant knew the bear to be of a 
 fierce nature, must be taken to be proved, as every one 
 must know that such animals as lions and bears are of a 
 savage nature. For though such nature may sleep for a 
 time, this case shows that it may wake up at any time. 
 A person who keeps such an animtil is bound so to keep it 
 that it shall do no damage. If it be insufficiently kept, or 
 so kept that a person passing is not sufficiently protected, 
 the owner is liable. If the plaintiff, with knowledge that 
 the bear was there, put herself into a position to receive the 
 injury, she could not recover. But, assuming such know- 
 ledge, it is for you to say, whether she had such notice of 
 the proximity of the bear as would amount to negligence 
 disentitling her to recover." The Jury found for the 
 plaintiff. 
 
 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 injmy occasioned by it he 
 ought to be cirilh/ 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 Roman law required it to be 
 proved, that the owner had Notice of the mischievous 
 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 ascertain 
 
 [h) Besozzi \. maris, 1 F. & F. 92. 
 
FEROCIOUS AND VICIOUS ANIMALS. 349 
 
 tliat wliicli slionld determine the degree of care which 
 ought to be exercised (c) . 
 
 Bo 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 {d). 
 
 In arguing the case of Mason v. Keeling ie), it was said, Argument in 
 " If a man have an unruly Horse, which breaks through -''{««c|» v. 
 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 laud, 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 pre- 
 vent a first mischief ?" 
 
 And in accordance with this common sense view of the Decision in 
 case, it was decided in Scotland, that a scienter was not Scotland, 
 necessary ; and Lord Cockburn said, " I have always 
 thought that if a Dog worries Sheep, his Master is liable. 
 I do not attach any weight to the law of England. I am 
 told that knowledge on the part of the owner is requisite 
 to make him liable. This is absurd ; he cannot know it 
 until it is done. This would allow each Dog to have one 
 worry with impunity" (/). 
 
 But this case was carried to the House of Lords, where Reversed in 
 Lord Cockburn's judgment was reversed on the ground the House of 
 of there being no allegation of a scienter nor of negli- 
 gence on the part of the defendant, it being held that 
 blame can only attach to the owner of a Dog, when, after 
 having ascertained that the animal has propensities not 
 generally belonging to his race, he omits to take precau- 
 tions to protect the public against the ill consequences 
 of those anomalous habits. However in this case Lord 
 Campbell said, " If in Scotland it is sufficient to allege 
 negligence on the part of the owner, without averring or 
 proving his knowledge of the animal's habits, it is not 
 that the foundation of the action is dijEferent, but that the 
 Scotch law does not so readily permit the owner of the 
 annual to rely on the general consequences from its being 
 supposed to be an animal mansuetce naturce, a supposition 
 which experience shows to be very often far from the truth, 
 
 (c) SeeCardv.Case,5G.B.627,n. 31,32,36. 
 
 {(l) Code Civil, No. 1385 ; Card (e) Mason v. Keeling, 12 Mod. 
 
 V. Case, 5 C. B. 627, n. ; see also 333 ; S. C. I Ld. Eaym. 606. 
 
 Exodus, chap. 21, vv. 21, 29, 30, (/) Orr y . Fleming , 1 W. R. 339. 
 
350 
 
 FEROCIOUS AND VICIOUS ANIMALS. 
 
 In England 
 a scienter is 
 held neces- 
 sary. 
 
 Where a Doc 
 bites a per- 
 son. 
 
 Not enough 
 to show that 
 the Dog was 
 of a fierce 
 disposition. 
 
 Report that 
 Dog had been 
 bitten by a 
 Mad DOS'. 
 
 Where Dog 
 had bitten a 
 child. 
 
 and wMcli I am inclined to think tliat we in England have 
 sometimes too readily acted on" (//). 
 
 By the law of England, as laid down in a large number 
 of cases, a scienter is held necessary (A) ; and therefore, as 
 there is practically no efficient means of keeping snapping 
 Dogs, &c. off the Highways, every Dog has the opportunity 
 of indulging once in the luxury, not, since the 28 & 29 Yict. 
 e. 60 (as to which see post, p. 352), of worrying Sheep, 
 as suggested by Lord Cockbm-n, but of biting men, women 
 and childi'en. But it was the opinion of the Com-t in 
 Smith V. Cook (/) that the rule requiring proof of scienter 
 in the case of injuries by animals mansuetce naturce is an 
 artificial rule which ought not to be extended. 
 
 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 natui'e (/r). 
 
 And it was held by Lord Ellenborough in an action o)i 
 the Case for keeping a Dog, which 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 (/). But, in the later case of 
 Thomas v. Morgan {ni), such an offer to make satisfaction 
 was held to be evidence, though slight, of the defendant's 
 knowdede:e of the habits of the animal: 
 
 In an action on the Case for keeping a mischievous 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 Jury, that the plaintiff hneio the Dog 
 was mischievous and ought to be confined, and particularly 
 as by tying up the Dog he had showTi some knowledge or 
 suspicion of the fact {n). 
 
 It was held also in the case of Ge thing v. Morgan (o), 
 that where a Dog had bitten a girl foui' years before he 
 worried the plaintiff's Sheep, an action would lie. 
 
 iff) On- V. Fleming, 25 L. T. 73. 
 
 (h) But see dictum of Mr. Justice 
 Maule, post, in Cardy. Case, 5 C. B. 
 634. See, however, per Erie, C. J. , 
 and Willes, J., Cox v. Burbridgc, 
 13 C. B., N. S. 430, 436. 
 
 (i) L. R., 1 Q. B. D. 79; 45 L. 
 J., Q. B. 122 ; 33 L. T., N. S. 722; 
 
 24 W. R. 206. 
 
 (/.■) Mason v. Keeling, 12 Mod. 
 332. 
 
 {I) Bed;, v. Dyson, 4 Camp. 198. 
 
 {m) 2 C, M. & R. 496. 
 
 (;?) Jones v. rerrij, 2 Esp. 482. 
 
 (o) Gcthing v. Morgan, N. P., 
 Q. B., May 1, 1857. 
 
FEROCIOUS AND VICIOUS ANIMALS. 351 
 
 And it is not necessary to show that the Dog has bitten Not necessary 
 another man before it bit the plaintiff ; it is sufficient *° ^^9^ ^^'^^ 
 to show that the defendant knew it had evinced a savage bitten an- 
 disposition by attempting to bite (p). other man. 
 
 Where the defendants have done all that is reasonable to stray Do"' on 
 get rid of a stray dog which has come on to their premises, defendant's 
 they are not liable for injury it may do (q). prenuses. 
 
 Where the defendant was a milkman, and his wife occa- Evidence of 
 sionally attended to his business, carried on in the premises Scienter. 
 where he kept the Dog, it was held that a complaint that 
 the Dog had bitten a person, made to the wife on the 
 premises, to be communicated to the husband, was evidence 
 of scienter (r). So, where complaint was made to two men 
 serving customers behind the bar of the defendant's public- 
 house out of which the dog had come ; not'wdthstanding 
 that there was no evidence that these complaints were 
 communicated to the defendant ; or that either of the men 
 spoken to had the general management of the defendant's 
 business or had the care of the dog (s). These two cases 
 ajopear to have been decided upon the inference that the 
 persons to whom notice of the Dog's ferocity had been 
 given had communicated such notice to the defendant. 
 
 If the o"\vner of a Dog appoints a servant to keejD it, the 
 servant's knowledge of the Dog's ferocity is the knowledge 
 of the master (t). But notice to an ordinary servant is 
 not sufficient {u). 
 
 An action may be maintained against a person for Damage done 
 damages done to the plaintiff's game by his Dog, which by Dog to 
 was in the habit of hunting game on its own account, and ff^action°"^ 
 in a peculiarly destructive manner, a fact known to the 
 defendant, who also knew that the plaintiff preserved 
 game (x). 
 
 And in a case in which the plaintiff's Horse took fright, Horse 
 and damaged itself, in consequence of the defendant's Dogs frig^^tened by 
 running out and barking at him, a verdict was given for thereby 
 the plaintiff with damages to the amount of 53/. 10s. {//). damaged. 
 
 {p) Worth V. Gillinff, L. R., 2 C. {t) Baldwin v. CascUa, L. E,., 
 
 P. 1. 7 Ex. 325; 41 L. J., Ex. 167; 
 
 [q) Smith V. Great Eastern Rail- 26 L. T., N. S. 707 ; 21 W. R. 16. 
 way Co., L. E., 2 C. P. 4. («) Ibid. And see judgments of 
 
 (r) Gladman v. Johnson, 36 L. J., Lord Coleridge, C. J., and Brett, J., 
 
 C. P. 153. in Applehec v. Fercy, uhi mpra. 
 
 (s) Applehee y . Tercy , L. R., 9 C. (.r) Read V. Edwards, 11 L. T., 
 
 P. 647 ; 43 L. J., C. P. 365 ; 30 L. N. S. 311. 
 
 T., N. S. 785; 22 W. E. 704. Per (y) Read v. Einy, N. P., Guild- 
 Lord Coleridge, C. J., and Keat- hall, Jan. 26, 1858. 
 ing J. (Brett, .T., dissenting). 
 
352 
 
 FEROCIOUS AND VICIOUS ANIMALS. 
 
 Where a Dog 
 
 worries 
 Sheep. 
 
 Dictum of 
 Mr. Justice 
 Maule. 
 
 Evidence of 
 mischievous 
 propensity- 
 unnecessary 
 under 28 & 29 
 Vict. c. GO. 
 
 "Cattle" in- 
 cludes Horses 
 and Mares. 
 
 Proof of 
 ownership. 
 
 Sclent e)- may 
 be proved 
 against a 
 Corporation. 
 
 Where an action on the Case was broiiglit 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 (s). 
 
 In this case, however, Mr. Justice Maule is reported to 
 have said, " It may be that the allegation of negligence, 
 coupled with the consequent damage to the plaintiff, would 
 show a cause of action" [a). 
 
 But now, by the statute 28 & 29 Yict. c. 60, in the case 
 of injury by a Dog to Sheep or Cattle, evidence of a mis- 
 chievous propensity of the Dog or of the owner's knowledge 
 thereof is unnecessary ; and the act also simplifies in such 
 cases the proof of the ownership of the Dog. 
 
 By sect. 1, " the owner of every Dog shall be liable in 
 damages for injury done to any Cattle or Sheep by his 
 Dog, and it shall not be necessary for the party seeking 
 such damages to show a previous mischievous propensity 
 in such Dog, or the owner's knowledge of such previous 
 propensity, or that the injury was attributable to neglect 
 on the part of the owner." The word "Cattle" in this 
 section includes Horses and Mares (i^). 
 
 By sect. 2, " The occupier of any house or premises, 
 where any Dog was kept or permitted to live or remain at 
 the time of such injury, shall be deemed to be the owner 
 of such Dog, and shall be liable as such, unless the said 
 occupier can prove that he was not the owner of such Dog 
 at the time the injury complained of was committed, and 
 that such Dog was kept or permitted to live or remain in 
 the said house or premises without his sanction or know- 
 ledge ; provided always, that where there are more occu- 
 piers than one in any house or premises, let in separate 
 apartments or lodgings or otherwise, the occupier of that 
 particular part of the premises in which such Dogs shall 
 have been kept or permitted to live or remain at the time 
 of such injury shall be deemed to be the owner of such Dog." 
 
 In the case of Stiles v. Cardiff Steam Navigation Com- 
 pany (c), the plaintiff was a passenger by one of the 
 
 (z) Cardv. Case, 5 C. B. 622. 
 
 (a) Ibid. 634. But see Orr v. 
 Fleming, 25 L. T. 73, and Cox v. 
 £Hrbridf/e,U C.B., N.S. 436—439. 
 
 (b) Wright Y. Fcarson, L. R., 4 Q. 
 B. 582 ; 38 L. J., Q. B. 312 ; 20 L. 
 T., N. S. 849; 17 W. R. 1099. 
 
 {c) Stiles V. Cardif Steam Naviga- 
 tion Co., 10 Jul-., N. S. 1199. 
 
FEROCIOUS AND VICIOUS AXIMALS. 35^ 
 
 defendants' boats, and having gone to their premises for 
 the piu'pose of inquiring for his luggage, which had been 
 left there with their consent, found them closed, but was 
 directed to inquire at other premises of the defendants 
 close at hand. He went there, and while there was bitten 
 by a Dog of the defendants chained up round an angle of 
 the building, so as to be previously out of sight of the 
 plaintiff. The Dog had to the knowledge of persons in 
 the employ of the defendants (but who had no control 
 over their business, or authority with respect to the Dog) 
 previously bitten another person. It was held that, as- 
 simiing the defendants to be aware of the dangerous nature 
 of the Dog, they (there being no diiference in this respect be- 
 tween a corporation and individuals) were liable in damages, 
 but that there was no evidence in this case of scienter 
 to enable the plaintiff to maintain his action, inasmuch as 
 the knowledge was not brought home to any person com- 
 petent to bind the defendants by his admissions, and who 
 was entrusted with the control of their business. And 
 Crompton, J., said, "It may be doubted whether the 
 knowledge should not be brought home to somebody who 
 kept and had the care of the Dog, and also the power of 
 putting an end to the keeping of him." 
 
 Sect. 1 of the 34 & 35 Vict. c. 56 (The Dogs Act, 1871), The Dogs 
 provides that any police officer may take possession of any ^^*' ^^~^^- 
 Dog that he has reason to suppose to be savage or dan- 
 gerous straying on any highway, and not under the con- 
 trol of any person, and may detain such Dog until the 
 owner has claimed the same, and paid all expenses incurred 
 by reason of such detention. By sect. 2, any Court of 
 Summary Jurisdiction may take cognizance of a complaint 
 that a Dog is dangerous, and not kept under proper control, 
 and if it appears to the Court having cognizance of such 
 complaint that such Dog is dangerous, the Court may make 
 an order in a summary way directing the Dog to be kept 
 by the owner under proper control or destroyed, and any 
 person failing to comply with such order shall be liable to 
 a penalty not exceeding twenty shillings for every day 
 dm'ing which he fails to comply with such order. Under 
 this section the Court may orcler a dangerous Dog to be 
 destroyed, without giving the owner the option of keeping 
 it under proper control (rf). By sect. 3, power is given to 
 
 {d) Flrlrring v. Marsh, 43 L. J., IM. ('. 143 ; 22 W. R. 798. 
 O. A A 
 
154 
 
 FEROOTOUS AND VICIOUS ANIMALS. 
 
 Where a 
 Horse bit 
 some other 
 Plorses. 
 
 Breakiug" 
 Horses in a 
 jpublic place. 
 
 Where a IMad 
 Bull wounds 
 a person. 
 
 Wliere a Bull 
 singled out a 
 person wear- 
 insr red. 
 
 Where a Earn 
 injured a 
 person. 
 
 Where a 
 vicious beast 
 kills a person. 
 
 tlie local authority to place restrictions upon Dogs being at 
 large, if danger from mad Dogs is apprehended {d). 
 
 Where it was stated in a Declaration, that the defen- 
 dant kept his Horse so negligently that it broke into the 
 plaintiff's close, and bit some of his Horses, so that 
 " they were spoilt and died," a verdict was found for the 
 plaintiff, but Judgment was arrested because no scienter 
 was alleged {e). But where, through the defect of a gate 
 which the defendant was bound to repair, the defendant's 
 Horse strayed into a field belonging to the plaintiff, and 
 kicked the plaintiff's Horse, it was held that the plaintiff 
 was entitled to recover, as the damage resulted from a 
 trespass for which the defendant was responsible, and, 
 therefore, proof of scienfer was unnecessary (/). 
 
 Where, however, a servant breaking an ungovenuihle 
 pair of Horses in Lincoln's Inn Fields, ran over and hurt 
 a man, it was held that no scienfer was necessary, as a 
 place so frequented by the public was an improper place 
 for Horse-breaking (g). 
 
 But where a Bull made mad, from having been " cut 
 or hoxed," escaped through the defendant's negligence, 
 and tossed, gored and wounded the plaintiff', and a verdict 
 was found for him, the Judgment was arrested, because 
 there was no scienfer alleged in the Declaration (//). 
 
 And where a Bull passing along a highway, seeing 
 the plaintiff with a red handkerchief, ran at and gored 
 him, the decision turned upon the question, whether or not 
 the owner of the Bull knew that he had a tendency to run 
 at any person wearing red (i). 
 
 So, too, in a case in which a Eam, which is an animal 
 known to be mischievous at certain seasons, butted and 
 injured the Plaintiff''s wife in the street, the Court of 
 Exchequer held that the owner of the animal was not liable 
 to an action in the absence of evidence that he was aware 
 of its propensity to attack passers-by (/.•). 
 
 If through negligence a vicious beast goes abroad, 
 after warning or Nofice of his condition, and kills a 
 
 [d) As to proof of ownership 
 under this section, see Wren v. 
 Focock, 34 L. T., N. S. C97. 
 
 {() Scctclictt v. FJtham, Freem. 
 o34 (C.P.). 
 
 (/) Lre V. Riley, 18 C. B., N. S. 
 722 ; 34 L. J., C. P. 212. See also 
 Fi/ixv. I.of/iis Irov To., L. E,., 10 
 C. P. TO;"44L. .T.,C.P. 24 ; 31 L. 
 
 T., K S. 483; 23W. R. 246. 
 
 {'l) 3IicJiael v. Alestrce, 2 Lev. 
 172; S. C. 1 Vent. 295. 
 
 (//) Boyntine v. Sharp, 1 Lutw. 
 90. 
 
 (0 Iludsou V. Foherts, 6 Ex. 697. 
 
 (/•) Jaekson v. S.mithmi, 15 M. & 
 W. 563. 
 
FEROCIOUS AND VICIOUS ANIMALS, 355 
 
 person, it is the opinion of Hale, that it is Mamlauglde)' 
 in the owner [1). 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 (/). 
 
 The owner of a vicious animal, after Notice of its Owner bound 
 having done an injury, is bound to secure it at all events, *? ?ecure a 
 
 i'Tii'T-\ I 1 ^ n • • 1 VICIOUS ammal 
 
 and IS liabie m Damages to a party subsequently injured, atalleveuts. 
 if the mode he has adopted to secure it proves iusufh- 
 cient {»i). 
 
 A person who keeps an animal accustomed to attack and He is liable 
 bite mankind, -with knou-kdge that it is so accustomed, is ]P ^^ action 
 2)rimd facie liable in an action at the suit of any person ° ' ° ' 
 attacked and injured by such animal (^?), 
 
 The gist of the action being the keeping of the animal The gist of 
 after knowledge of its mischievous propensities (n). the action. 
 
 And it is not necessary to prove negligence or default in Not necessaiy 
 the seeming or taking care of it («). to prove 
 
 If a man has an unruly Horse in his Stable, and leaves ^^° igence. 
 open- the Stable Door, and the Horse in consequence escapes Hoi-se^e^cap- 
 and does mischief, the ovaier is liable in an action (o). ing from a 
 
 If a man turn an animal, which he knows to be a Stable. 
 dangerous one, out of a place where he may be restrained. Turning a 
 into a public thoroughfare, and the animal afterwards dangerous 
 kills a man, it will be Manslaughter, unless the person ammal loose, 
 accused can show that the act was done in self-preserva- slaughter. 
 tion [p). 
 
 If a man turn out a Horse, which he knows to be vicious. Turning a 
 upon a Common with a footpath across it, and it kills a "Vicious Horse 
 child, he is guilty of Manslaughter ((/). _ Common. 
 
 In an action for an injury by a ^deious Bull, the plain- jjj-,jj.y Q^^a- 
 tiff recovered, although it appeared that the Bull was sioned by a 
 attracted by a Cow the plaintiff was driving past the vicious Bull, 
 field in which the Bull was, and that the plaintiif first 
 struck the Bull on the head to drive him away from the 
 Cow {m). 
 
 To justify a person in shooting a Dog for worrying his Shooting a 
 Sheep, it is not necessary to prove that he was shot in the ^?g ^°L^, "^°^" 
 
 •^ ^ J. rymg Sheep. 
 
 {!) See judgment— 7?«.r v. Hug- v. Rylands, L. R., 1 Ex. 265, 281. 
 
 gins, 2 Ld. Raym. 1583, cited May (o) Michael v. Alestree, 1 Vent. 
 
 V. Burdett, 9 Q. B. 107. 295. 
 
 (w) BlackmauY, Simmons, 3 C. & [p) Per Bramwell, B., Eeq. v. 
 
 P. 138. John Child, C. G. C. Feb. 4, 1858. 
 
 («) Ma}/ V. Burdett, 9 Q. B. 101. (?) Jieg. v. Dant, G. C. C. April 
 
 See also Beso::i v. Jfarris, 1 F. & F. 29, 1865. 
 92, ante, p. 348. See also J-'l<-fchcr 
 
 A A 2 
 
356 
 
 FEROCIOUS AND VICIOUS ANIMALS. 
 
 Shooting a 
 Dog for wor- 
 rying Fowls. 
 
 act ; but it is sufficient if it appear that he has been accus- 
 tomed to worry Sheep, and that just before he was shot he 
 had been Avorr^dng Sheep, and could not have been other- 
 wise restrained from further doing- so (>•). 
 
 It has, however, been held that a person cannot justify 
 shooting a Dog worrjdng his Fowls, unless it appear that 
 the Dog was in the very act at the time, and could not 
 otherwise be prevented (s) . 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 iras 2)ursHing 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 otherwise be prevented killmg them {f). 
 
 {>•) KcUctt V. Stannard, 4 Ir. Jur. (/) IJ^adhurst 
 
 50 (Ex. Ir.). Jac. 44. 
 
 (s) Janson v. Broioi, 1 Camp. 41. 
 
 V. Damme, Cro. 
 
( ;557 ) 
 
 CHAPTER III. 
 
 THE LIABILITIES OF PARTIES HUNTING OR TRESPASSING 
 UPON THE LANDS OF ANOTHER. 
 
 Fresh Pursuit over another'' s 
 Land 357 
 
 Pursuing Vermin id. 
 
 Xo unnecessary Damage .... 358 
 
 Digging for a Fox, S;c id. 
 
 Hunting for Amusemetit id. 
 
 Earl of Essex v. Capel .... id. 
 
 Huntsman liable for Damage 
 done by the Field 359 
 
 Master of Hounds, tvhen re- 
 sponsible for the Field id. 
 
 Hunting a Hare on another^s 
 Land 360 
 
 Taking a Stag ofi another''s 
 Land id. 
 
 Hunting a stray Deer id. 
 
 Dead Game Property of Owner . , id. 
 He has a Right to have his 
 Game undisturbed id. 
 
 Cattlegate Owners have not the 
 Right of Shooting id. 
 
 Reservation of Rights of Lords of 
 Manors under Enclosure Acts . id. 
 
 Who may kill Hares without a 
 Game Certificate 361 
 
 Ground Game Act, 1880 id. 
 
 Any Person may hunt Hares . . id. 
 
 Continued Trespass id. 
 
 Two Persons engaged in a com- 
 mon Purpose 362 
 
 Trespass in Search of Game .... id. 
 
 Hunting with Hounds or Grey- 
 hounds 362 
 
 Jurisdiction of Justices ousted , , id. 
 
 Persons employed to kill Rabbits 
 by Tenant 363 
 
 Trespass from the Highway . ... id. 
 From his own Land to pick up 
 
 Game id. 
 
 Under lb ^ 26 Vict. c. 114 . . id. 
 
 Laying Hands on a Trespasser . id. 
 
 Opposing Force to Force 364 
 
 Defence to an Action id. 
 
 Horse tvith a Rider cannot be 
 distrained id. 
 
 Action of Trespass lies for 
 
 riding over Land id. 
 
 But not where a Dog jumps 
 into a Field id. 
 
 Notice wider 3^4 Will. 4, c. 24, 
 «. 3 id. 
 
 Notice transmitted by Post .... id. 
 
 Maintenance of Fences 365 
 
 Gate of a Field left open id. 
 
 Gate of a Railway Crossing left 
 open where there is a statut- 
 able Obligation id. 
 
 Gate of Station left open tvhere 
 there is no statutable Obliga- 
 tion 366 
 
 Fence within Station Yard .... 367 
 
 HUNTING AND TRESPASSING. 
 
 Fresh pursuit 
 over another's 
 land. 
 
 Where the Fox, Gray or Otter, and other noxious ani- 
 mals, are pursued as Verniin, and the governing object 
 of the pursuers is their extirpation, as such, and not merely 
 the amusement of " a run" 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 over Pursuing- 
 the ground of another because they are noisome Vermin {a) ; ^^™^- 
 
 {a) Nicholas v. Badger, 3 T. K. 259, n. ; Gedge v. Slinue, 2 Bulst. 62. 
 
338 
 
 THE hlABlLrilES OF I'AKTIES HUNTING, ETC. 
 
 No unneces- 
 sary damage. 
 
 Digging for a 
 Fox, kc. 
 
 Hunting for 
 amusement. 
 
 JEarl of Essex 
 V. Cajjel. 
 
 and also Gray or Otter aud other noxious animals, as tliey 
 are injimoiis to the commonwealth (6). And in Gundry v. 
 FcHliam (f). Lord Mansfield, C. J., said, "By all the cases 
 as far back as the reign of Hemy the Eighth, it is settled 
 that a man may follow a Fox into the grounds of another." 
 
 But a person so hunting must not unnecessarily trample 
 do"VMi another man's hedges, nor maliciously ride over his 
 grounds ; for if he does more than is absolutely necessary 
 he cannot justify it {c). Therefore, pursuing an animal as 
 Yermin does not justify fifty or sixty people following the 
 dogs(r/). 
 
 A man cannot justify entering a close or digging up the 
 soil to hunt or take a Fox, Badger, &e., though it be for 
 the public good(f). So that it appears a person cannot 
 enter another's grounds to find Vermin, nor can he dig it 
 out Avhen it has run to earth. 
 
 Persons hunting for their own amusement, and going 
 over the lands of another, are trespassers; and Fox-hunters, 
 like all other Hunters, may be warned off (./'). 
 
 This point was decided by Lord Ellenborough in the case 
 of The Earl of Essex v. Cape! (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 diversion and amuse- 
 ment of the chase merely, but as the only Avay and means 
 of killing and destroying the Fox. Now if you were to 
 put it upon this question, which ^Ya.s the principal motive ? 
 Can any man of common sense hesitate in saying that the 
 principal motive and inducement was not the Idlling of 
 Vermin, but the enjojanent of the sport and diversion of 
 the chase ? And we cannot make a new law to suit the 
 pleasiu-es and amusements of those gentlemen who choose 
 to hunt for their diversion. These pleasm-es are to be 
 
 [b) Com. Dig. Pleader, 3 M. 37. 
 
 (c) Gundnj v. Feltham, 1 T. E. 
 337. 
 
 {(1) Earl of Essex v. Capel, Hert- 
 ford Summer Assizes, 1809. 
 
 (t) Com. Dig. Pleader, 3 M. 37, 
 and the authorities there cited. 
 
 (./■) Earl of Essex v. Capel, Hert- 
 ford Summer Assizes, 1809; Boici/er 
 y. Cook, 4 C. B. 236; >S. C. 16 L. J., 
 
 C. P. 180. 
 
 {g) Earl of Essex v. Capel, Hert- 
 ford Summer Assizes, 1809, cited 
 in Chitty on Game Laws, 31. See 
 also Paul V. iSiai/iiier/ia>/es, L. R., 4 
 Q. B. D. 9; 48 L. J., M. C. 33; 
 39 L. T., N. S. 574 ; 27 W. R. 
 21.5, in which this case was dis- 
 cussed and approved. 
 
HUNTING AND TRESPASSING. 359 
 
 taken ouly where there is the cousent of those who are 
 likely to be inj\irecl 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 Gundry v. 
 Feltham {//) ; if it be necessary I shouKl be glad that that 
 case should be fully considered. I have looked into the 
 case in the Year Book (?') ; that seems to be nothing more 
 than the case of a person who had chased a Stag from the 
 forest into his own 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 wi'it. 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 rehed on. But even in that case it is emphatically 
 said by the Judge, that a man may not hunt for his 
 2}leasure 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" (k). 
 The Jur}^, under his Lordship's direction, found a verdict 
 for the plaintiff. 
 
 And in an action against a Huntsman for hunting over Huntsman 
 the lands of another, Lord EUenborough, C. J., held that liable for^da- 
 damages might be recovered, not only for the mischief im- th.e^eld.'^'^ "^ 
 mediately occasioned by the defendant himself, but also by 
 the concourse of people who accompanied him (/). 
 
 And in another case it was laid down by Lord Ten- Master of 
 terden, C. J., that if a gentleman sends out his Hounds and Hounds, when 
 his Servants, and invites other gentlemen to hunt with him, for^the'field. 
 although he does not himself go on the lands of another, 
 
 (A) Gundry v. Feltham, 1 T. R. ford Summer Assizes, ISflO, cited 
 
 337. in Cliitty on G-anie Laws, 31. 
 (0 12 Hen. 8, p. 9. (0 llumo v. Ohlacrc, 1 Stark. N. 
 
 (A) Earl of Essex v. Copcl, Hert- P. C. 351. 
 
360 
 
 THE LIABILITIES OE rAIlllES HL^NTING, ETC. 
 
 Killing a 
 Hare on 
 another's 
 land. 
 
 Taking a Stag 
 on another's 
 land. 
 
 Hunting a 
 stray Deer. 
 
 Dead Game 
 property of 
 owner. 
 
 He has a 
 right to have 
 his G-ame un- 
 disturbed. 
 
 Cattlegate 
 owners have 
 not the right 
 of shooting. 
 
 Eeservation' 
 of rights of 
 Lords of the 
 Manor under 
 Enclosure 
 Acts. 
 
 but tliose other gentlemen do, lie is answerable for the 
 trespass they may commit in so doing, unless he distinctly 
 desires them not to go on those lands (w). 
 
 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. {n). 
 
 And where a Stag hunted by the Hounds of B. was run 
 into the barn of A., it was held that B. and his servants 
 had no right to enter the barn to take the Stag, and that if 
 they did so they would be trespassers (m). 
 
 But where a Deer strayed from a Park on to the plain- 
 tiff's land, and eat his grass, and he hounded it with Grey- 
 hounds, which pursued it into the owner's Park, and killed 
 it there, the Court of Common Pleas held that he was 
 justified in doiog so (o). 
 
 Grame taken on land, as soon as killed there, becomes the 
 property of the owner of the land(^j), though up to the 
 time of its being killed, he has no property in it, yet he has 
 a right to have it kept undisturbed (7) ; therefore he has a 
 right of action against the master of a dog, which is in the 
 habit of disturbing and destroying it, after having received 
 due notice of the fact, and taken no steps to restrain it (q). 
 
 The customary right of pasture in a manor, or Cattle- 
 gates, gives the owners no right to possession of the soil ; 
 but the ownership of it remains in the Lord of the Manor, 
 subject to the right of several pasture upon it by the 
 Cattlegate o^Miers, and therefore the lord may maintain 
 trespass against a Cattlegate owner for sporting over it, 
 without his permission (r). 
 
 The reservation of the rights of the Lords of the Manor 
 under Enclosure Acts reserves the right of shooting ; there- 
 fore in the case of Graham v. Eirart {s), in which Sir James 
 Graham was entitled under a Private Enclosiu^e Act " to 
 all mines and minerals within and under the soil, and to 
 other rights, royalties, liberties and pri^dleges in and 
 over the same," it was held by the Exchequer Chamber, 
 
 {ni) Bal;er v. BerJcleij, 3 C. & P. 34 L. J., C. P. 286 ; Ring v. Earl 
 
 32. of Lonsdale, 1 H. & N. 923. 
 
 (m) Sutton V. Moody, Ld. Raym. [q) Per Keating, J., Read v. 
 
 250. Edwards, 11 L. T., N. S. 3n. 
 
 (o) Barrington v. Tamer, 3 Lev. (;•) Rigq v. Earl of Lonsdale, 1 
 
 28. H. &N. 923. 
 
 (;j) Blades V. 7/!>/s, 9 Jur., N. S. («) Graham v. Ewart, 26 L. J., 
 
 1040; 10 C. B., N. S. 713; 30 Ex.97. 
 L. J., C. P. 347; 11 H. L. C. 621; 
 
HUNTING AND TRESPASSING. 361 
 
 reversing the decision of the Court below, and overruling 
 Greathead v. Morley (t), that the right of hunting, fishing, 
 shooting and fowling over the allotment in question was 
 thereby intended to be included, and that this right must 
 be exclusive, for that was the character of the right existing 
 before the Act passed, and the object of the proviso was 
 exjDressly to preserve the former right unimpaired by the 
 consequences of the enclosure. It was also held in this 
 case, that a subsequent conciuTcnt enjoyment of sporting 
 for more than twenty years by the owners of the allot- 
 ments, claiming to do so as of right, did not deprive the 
 original Lord of his exclusive right. 
 
 Persons in the occupation of enclosed Ground, and in Who may kill 
 certain cases o^vners, may kill (ii) Hares without a Grame Hares without 
 Certificate (x). The owner may also give authority to kill tificate^ ^^' 
 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 receive Notice of 
 revocation {>/). 
 
 And now hj the Ground Game Act, 1880 (43 & 44 Yict. Ground Game 
 c. 47), every occupier of land has a right, inseparable from ■^^^' ^^^^• 
 his occupation, to kill Hares and Rabbits concurrently with 
 any other person entitled to kill the same on land in his 
 occupation (sect. 1) ; where the occupier is otherwise en- 
 titled to kill Ground Game on land in his occupation, he 
 cannot divest himself wholly of such right (sect. 2) ; and 
 all agreements in contravention of the right of the occupier 
 to destroy Game are declared void (sect. 3). The occupier 
 and the persons duly authorized by him do not require a 
 Game Licence for the purpose of killing Ground Game 
 under the Act. But they are not exempt from the Gun 
 Licence Act, 1870 (sect. 4). 
 
 And it is "lawful for any person to pursue and kill, or Any person 
 join in the pursuit and killing of, any Hare by coursing ^^J ^^^^ 
 with Greyhounds, or by hunting with Beagles or other ^^^^' 
 Hounds, without having obtained an Annual Game Cer- 
 tificate (s). 
 
 Where acts terminate in themselves, and once done can- Continued 
 not be done again, there can be no continued trespass, as trespass. 
 hunting and killing a Hare or five Hares. But hunting 
 
 [t) Greathead v. Morley, 3 M. & (.r) Ibid. s. 1. 
 
 G. 139. (//) Ibid. s. 2. 
 
 (?/) Not to authorize the laying {z) Ibid. s. 4. 
 of poison, 11 & 12 Vict. c. 29, s. 5. 
 
362 
 
 THE LIABILITIES OF PARTIES HUINTING, ETC. 
 
 Two persons 
 engaged in a 
 common pur- 
 pose. 
 
 Trespass in 
 search of 
 Grame. 
 
 Hunting with 
 Hounds or 
 Greyhounds. 
 
 Jurisdiction 
 of Justices 
 ousted. 
 
 may be continued as well as spoiling, consuming or cutting 
 grass (a) . 
 
 When two persons are engaged in a common purpose, 
 wliat one does is the act of Loth. Therefore, in a case in 
 which A. and B. were driving in a trap along the turnpike 
 road for a lawful pm-pose, and A. got out of the trap, went 
 into a field, and shot a Hare, which he gave to B., who 
 had remained in the trap, it was held that there was suffi- 
 cient evidence that B. was present Aiding and Abetting A. 
 in a trespass in pursiiit of Game (under 11 & 12 Vict. c. 43, 
 s. 5), and that he was not the less an Aider and Abettor, 
 because he might have been convicted as a Principal (h). 
 
 Under 1 & 2 Will. 4, c. 32 (c), trespassers in pursuit of 
 Game may be required 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 Justice, is to forfeit 
 a sum not exceeding o/., together with the costs of con- 
 viction (c). 
 
 But Hunters in fresh pursuit of Deer, Hare or Fox 
 (with Hounds or Grreyhounds) started on other lands, 
 are exempted from the provisions of 1 & 2 Will. 4, c. 32, 
 against trespassers (d). 
 
 By 1 & 2 AVill. 4, c. 32, s. 30, it is provided that " any 
 person charged with any such trespass shall be at liberty 
 to prove, by way of defence, any matter which would have 
 been a defence to an action at law for such trespass." But 
 the Jurisdiction of the Justices is not ousted by the claim 
 of a prescriptive right in gross to kill Game on the land, 
 there being no coloiu' for such a claim ; nor by the asser- 
 tion that the land is not in the occupation of the Lord of 
 the Manor, but is vested in other persons, as the claim of 
 title to oust the jurisdiction of the Justices must be a claim 
 of title in the party charged, and not in a third person [e). 
 In a case in which a prescriptive right in gross to kill 
 Game is set up, which is an impossible right, unkno^vm to 
 the law, the bona Jides is immaterial; but where a hona fide 
 and 25robable right of property is set up, the Justices are 
 bound to hold their hands (/). The mere belief, however, 
 
 (ff) Monldon v. Tasldey, 2 Salk. 
 639. 
 
 (i) Staccy V. Whitchurst, 13 W. 
 R. 384 ; Mai/hcw y. Jf'ardie!/, 14 C. 
 B., N. S. 5.30. 
 
 (e) 1 &2 WiU. 4, c. 3_>, s. 31. 
 
 [d) Ibid. s. 35. 
 
 ((') CunuceU V. Sanders, 3 B. & S. 
 206. 
 
 (/) Hrff. V. KaJ/h'!/, 10 L. T., N. 
 S. Sod. See also JFatkius v. Major, 
 L. R., 10 C. P. G62; 44 L. J., M. 
 
HUNTING AND TRKSrASSlN'G. 363 
 
 on the part of the alleged trespasser that he has such a 
 right, is not a bond fide claim of right {g). 
 
 A landlord may give verbal permission to another to 
 take Grame on his land, and such permission is a justifica- 
 tion for a fresh pursuit of Game on an adjoining field 
 within the meaning of sect. 30 (/?). 
 
 Persons employed by a tenant to kill Eabbits upon his Persons em- 
 farm, the right of shooting on which is reserved to the ployed to kill 
 landlord, cannot be proceeded against under this section, ^^^^g^j^t^ ^ 
 inasmuch as the tenant himself coidd not thus be con- 
 victed, but Avas entitled to kill the Rabbits himself, and, 
 as they were acting by his directions, they had the same 
 rights as he had {i). 
 
 It is a trespass in pursuit of Game within the meaning of Trespass from 
 this statute to fire at it from the Highway (y). But the highway, 
 merely sending a Dog into an adjoining cover in search or 
 pursuit of Grame, is not a trespass by entering and being in 
 or upon such cover, the Act requiring a personal trespass {k) . 
 
 A person who from his own land shoots a Pheasant in From his own 
 the land of another, and goes on such land to pick the bird land to pick 
 up, commits a trespass in pursuit of Game within the Act, 
 the shooting and the picking up the Game being one 
 transaction (/). But it is not a trespass in pursuit of Game 
 to pick up dead Game, which rose from the person's own 
 land, and fell dead within the land of another («?) . 
 
 Under 25 & 26 Yict. c. 114, s. 2, a person may be lTnder25&26 
 convicted of having obtained Game by milawfully going °" ^^^' 
 
 on land in search or pui'suit of Game, without evidence of 
 his having been on any particular land («) . 
 
 The owner of a close must fijst request a trespasser to Laying hands 
 depart before he can lay hands on him to tm-n him out, on a tres- 
 because every impositio inanuum is an assault and battery, r^^^*^^- 
 
 C. 164; 33 L. T., N. S. 352; 24 (/) Splcer v. Barnard, 28 L. J., 
 
 W. R. 164 ; Lovcseij t. Stallard, 30 M. C. 176. 
 
 L. T., N. S. 792. (./) Mayhew v. Wardleij, 14 C. B., 
 
 {g) Per "Wightman, J., Cormcvll N. S. 550. 
 
 V. Sanders, 3 B. & S. 213. See also (/.) R. r. Fratt, 24 L. J., M. C. 
 
 Leatt V. Vine, 30 L. J., M. C. 207; 113. 
 
 M. V. Cridlaml, 7 E. & B. 853 ; (/) Osborn v. Meadows, 12 C. B., 
 
 Morden v. Porter, 7 C. B., N. S. N. S. 10. 
 
 641 ; Lcgg v. Fardoe, 9 C. B., N. S. {m) Kcuijon v. Eart, 13 W. R. 
 
 289 ; Adams v. Masters, 24 L. T., 406. 
 
 N. S. 502; Reg. v. Critehhw, 26 [ii) Evans v. Bottcril, 33 L. J., 
 
 "W. R. 681; Birnie v. Marshall, 35 M. C. 50; and see as to this Statute, 
 
 L. T., N. S. 373. Broxvn v. Turner, 13 C. B., N. S. 
 
 (//) Jones V. Williams, 40 L. J., 485 ; Hall v. Knox, 33 L. J., M. C. 
 
 M. C. 270 ; 36 L. T., N. S. 559 ; \\ R. y. Barker, 33 L. J., M. C. 
 
 25 W. R. 501. 135. 
 
364 
 
 THE LIABILITIES OF PARTIES HUNTING, ETC. 
 
 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 junifis 
 into a field. 
 
 Notice under 
 3 & 4 Vict. 
 c. 24, 8. 3. 
 
 Notice trans- 
 
 which cannot be justified on the ground of a person 
 breaking into the close, mthout a request (o) . 
 
 But in case of actual force, as in burglary or breaking 
 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 
 violence with violence (o). 
 
 Therefore to Trespass for an assault and battery, it was 
 held that the defendant might plead that the plaintiff, 
 \vith force and arms and with a strong hand, endeavoured 
 forcibly to break and enter the defendant's close, where- 
 upon the defendant resisted and opposed such entrance, 
 &c. ; and it was held that if any damage happened to the 
 plaintiff it was in consequence of the defence of the posses- 
 sion of the close [p). And it is also a good defence to an 
 action for an assault that it was committed in an attempt 
 to take from the plaintiff dead rabbits of the defendant's 
 master, which he refused to give up {q). 
 
 A Horse cannot be distrained damage feasant if there be 
 a rider upon him ; for if such a distress were permitted, it 
 would perpetually lead to a breach of the peace (r) , And 
 indeed if a man or woman be riding a Horse, it cannot be 
 distrained at all (.s). 
 
 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 (/). 
 
 But where a Dog jumps into a field A^dthout the consent 
 of its master, it is not a trespass for which an action will 
 
 lie 00- 
 
 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 OwTier 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 Boinjer v. Cook (x) the Notice, although 
 
 (o) Green v. Goddard, 2 Salk. 
 640. 
 
 [p) Weaver v. B\ish, 8 T. R. 78. 
 
 (V) Blades v. Higgs, 10 C. B., 
 N. S. 713; 30 L. J., C. P. 347; 11 
 H. L. C. 621; 34 L. J., C. P. 
 286. 
 
 (r) Storey v. Robinson, 6 T. R. 
 138. 
 
 (s) Co. Litt. 47 a, cited Farsons 
 V. Givgell, 4 C. B. 550 ; and see 
 Webb V. Bell, 1 Sid. 440. 
 
 (;■) See per Holt, C. J., Ashby v. 
 White, 1 Smith's L. C. 125. 
 
 (m) See per Parke, J., Brown v. 
 Giles, 1 C. & P. 119; Ready. Ed- 
 wards, 11 L. T. 311. 
 
 {x) Boiajer v. Cook, 4 C. B. 
 237, n. 
 
HUNTING AND TRESPASSING. 365 
 
 not " served on tlie defendant or left at his last reputed or mitted bj- 
 known place of abode," but transmitted to his address by -P"^*- 
 Post, was admitted imder a Judge's Order, and read at the 
 trial. 
 
 The obligation to make and maintain Fences, both at Maintenance 
 common law and by the Railway Clauses Consolidation ^^ fences. 
 Act (//), is only as against the owners or occupiers of the 
 adjoining close. If the company neglect to fence, neither 
 they nor their servants can recover for injury caused by 
 animals straying on their land (s), nor can the tenants of 
 the land [a). And where the plaintiff's Sheep trespassing 
 on A.'s close, strayed upon the defendant's Railway 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 Coui't of Common Pleas that the 
 plaintiff could not recover {b). . 
 
 But a person using the lands of an adjoining owner by 
 his permission is in the same position as he is (c). 
 
 A person whose field adjoins a Highway may leave his Gate of afield 
 field open and permit cattle to pass over it. He cannot ^®^* open, 
 distrain them if he has suffered them to come there ; but he 
 commits no breach of duty by leaving the field open (d). 
 
 The following important case decided that where a Pail- Gate of a 
 way Company is by statute boimd absolutely to keep the I^ailyay 
 Gates of its level crossings closed, it is liable for damage open^where 
 occasioned to a trespasser in consequence of one of these there is a sta- 
 Gates having been left open. It appeared that the Y. Pail- tutable obli- 
 way 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 plaintiff 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 third field, all three being the plaintiff's fields ; they 
 then strayed through an open gate of the third field into 
 
 ( y) 8 & 9 Vict. c. 20, s. 68 ; and (b) Rickctts v. East and West 
 see Buxton V. North Eastern Railway India Docks and Birminqham June- 
 Co., L. R., 3 Q. B. 549; 37 L. J., tion Railway Co., 21 L. J., C. P. 
 Q. B. 258 ; 18 L. T., N. S. 795 ; 201. 
 16 W. R. 1194. (c) Dawson v. Midland Railway 
 
 {:) Child V. mam, L. R., 9 Ex. Co., L. R., 8 Ex. 8 ; 42 L. J., Ex. 
 
 176 ; 43 L. J., Ex. 100 ; 22 W. R. 49 ; 21 W. R. 56. 
 864. {d) See per Patteson, J., Fawcett 
 
 {a) Wiseman Y.Booker, L. R., 3 v. York and North Midland Railway 
 
 ■C. P. D. 184 ; .38 L. T., N. S. 392; Co., IG Q. B. 617 ; S. C, 20 L. J., 
 
 26 W. R. 634. Q. B. 222. 
 
366 
 
 THE LTARIUTIES; OF PARTIES IIIIXTING, ETC. 
 
 Gate of 
 Station left 
 open where 
 there is no 
 statutable 
 oblig'ation . 
 
 the liighway crossed by tlie Railway on a level. One of 
 the gates across the end of the road where it was crossed 
 by the line of Railwaj' 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 plaintiif against the Railway 
 Company, who contended that the Horses were, under the 
 circumstances, trespassers on the Highway. But it was 
 held by the Court of Queen's Bench, that the plaintiif was 
 entitled to recover the value of his Horses from the Com- 
 pany, because the obligation imposed on them bj^ Statute 
 5 & 6 Vict. c. 55, s. 9, to keep the Grates closed, was not 
 only against Cattle travelling on the road but also against 
 all Cattle straying there (e). 
 
 In the preceding case it will be observed that there was 
 an express statutable obligation to keep the gate closed 
 across the road under all circumstances ; consequently, the 
 Company were guilty of committing a wrong, in omitting 
 to do so. But under the Railway Clauses Consolidation 
 Act(/), s. 68, the obligation of a Railway Company is 
 merely to fence against the owners and occupiers of adjoin- 
 ing lands, and therefore where some Horses strayed into a 
 high road, and thence into the yard of a Railway Station, 
 the gate of which was open, from which they got on the 
 line through a gap in the fence, and were killed by a train, 
 it was held that the Company were not responsible for the 
 injury, inasmuch as their obligation under 8 & 9 Yict. 
 e. 20, s. 68, is co-extensive only with the Common Law 
 prescriptive obligation to repair fences, which would only 
 render them responsible, if the Horses were using the high- 
 way according to the dedication of the ow^ner of the soil (r/). 
 So, where a Colt had strayed on to a highway, and whilst 
 being driven home escaped into a Railway-yard and thence 
 on to the line, and was killed, the Company were held 
 liable, as the Colt was then lawfully using the highway (A). 
 But if the adjoining land belongs to the Company, and 
 Cattle stray thence on to the line, and are killed, the Com- 
 pany are not liable ; nor if Cattle are by the permission 
 of the Company grazing on the slopes or embankments of 
 
 («) Faiccett v. York and Korth 
 Midland Baihray Co., 16 Q. B. 
 610; -S'. C, 15 "Jur., Q. B. 173; 
 S. C, 20 L. J., Q. B. 222. 
 
 (/) 8 & 9 Vict. e. 20. 
 
 (ff) Manchester, Sheffield and Lin- 
 colnshire Raihcay Co. v. WalUs, 14 
 C. B. 213. 
 
 (/() Midland Eaihvai/ Co. v. Bay- 
 l-in, 17 C. B. 12G. 
 
HUNTING AND TRESPASSING. 367 
 
 tte Railway, or in a yard belonging to the Company, and 
 stray thence on the line, and are injured {i). 
 
 There is no obligation upon a Railway Company car- Fence within 
 rying Cattle to provide fences or guards at the station Station Yard, 
 where the Cattle may be landed, between the line and 
 the station-yard, so as to prevent them straying on the 
 line (/.•). 
 
 (0 Marfcll V. SoHth Wales Rail- {k) Roberts y. Great Western Rail- 
 
 way Co., 29 L. J., C. P. 315. nm;/ Co., 4 Jur., N. S. 1240. 
 
( 368 ) 
 
 PART III. 
 EACING, WAGEES, AND GAMING. 
 
 CHAPTER I. 
 
 THEIR HISTORY, RISE, AND PROGRESS IN THIS COUNTRY. 
 
 The time of 
 the Pharaohs. 
 
 Used mostly 
 for warlike 
 purposes. 
 
 The Time of the Fharaohs .... 
 Horses used mostly for Warlike 
 
 FtirjMses in Early Times . 
 The Time of Julius Ceesar . 
 
 Reign of Athelstan 
 
 Reiyn of William the Conqueror 
 
 Reiyn of Henry the First 
 
 Feign of Henry the Second . . . 
 Feign of Fiehard the First , . . 
 
 Feign of John 
 
 Feign of Edward the Second . . , 
 Feign of Edward the Third . , . 
 Feign of Fiehard the Second . 
 Feign of Henry the Fourth . . . 
 Feign of Henry the Seventh. . . 
 Feign of Henry the Eighth . . . 
 Feign of Edward the Sixth . . . 
 
 368 
 
 id. 
 
 269 
 
 id. 
 
 id. 
 
 id. 
 
 id. 
 370 
 
 id. 
 
 id. 
 
 id. 
 
 id. 
 
 id. 
 
 id. 
 371 
 374 
 
 Feign of Fhilip and Mary .... 
 
 Feign of Queen Elizabeth 
 
 Feign of James the First 
 
 Feign of Charles the First .... 
 Ftign of Charles the Second. . . , 
 Feign of William the Third , . 
 
 Feign of Queen Anne 
 
 Feign of George the First 
 
 Feign of George the Second .... 
 Feign of George the Third .... 
 Feign of George the Fourth .... 
 Feign of William the Fourth . . 
 Feign of Queen Victoria 
 
 Fepeal of Duty on Faeehorses 
 
 16 # 17 Vict. c. 119 
 
 37 cj- 38 Vict. c. 15 
 
 Faceco urses L icensingAct, 1879 
 
 374 
 
 id. 
 375 
 376 
 
 id. 
 377 
 
 id. 
 378 
 379 
 381 
 
 id. 
 382 
 
 id. 
 385 
 386 
 
 id. 
 387 
 
 During tlie Pharaoli Dynasty the Egyptians seem to 
 have been well acquainted with the use of the War-horse, 
 and from dealers out of Egypt Solomon derived a great 
 supply of Horses, not only for his own use, but also for 
 the purposes of resale to the people living between Pales- 
 tine and the Euphrates (a). It has been thought, from 
 the name given by the Egyptians to the Horse, that it was 
 introduced into Egypt originally from Persia {b). 
 
 The most striking feature in the Bibhcal notices of the 
 Horse is the exclusive application of it to warlike pur- 
 poses (c), with one exception, when it is mentioned as 
 employed in threshing by trampling upon the strewed 
 grain {d). 
 
 (a) 1 Kings, X. 28. 
 
 [b) Smith's Dictionary of the 
 Bible, tit. Horse. 
 
 {e) Ibid. 
 
 (d) Isa. xxviii. 28. 
 
RACING, WAGERS AND GAMING, THEIR HISTORY, RISE, ETC. 369 
 
 The first mention of the British Horse is made by Julius The time of 
 Ceesar ; and when he invaded the Island, he was opposed J^^s Caesar. 
 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 fom* thousand war- 
 Chariots (e). 
 
 Athelstan, who was second in succession from Alfred Reign of 
 the Great, received from Hugh Capet of France, as an ^t^elstan. 
 acceptable present, several German Running Horses (/) ; 
 and in a.d. 930, he decreed that no Horses should be 
 sent abroad for sale, or on any account, except as Royal 
 presents {g). 
 
 William the Conqueror was very much indebted to his Reign of 
 superiority in Cavalry for the Victory at Hastings ; he William the 
 introduced the Spanish Horse, and his favourite charger °'^1^®^'^^- 
 was a Spaniard. In his Reign there was a marked im- 
 provement in the breed of Horses, and about a.u. 1066, 
 we have on a piece of tapestry wove at Bayonne, the figure 
 of a man driving a Horse and harrow, being the earliest 
 notice of the use of Horses in Field labour {g). 
 
 In the Reign of Henry the First, a.d. 1121, the first Eeign of 
 Arabian Horse on Record was introduced by Alexander ^^°f"y *^° 
 King of Scotland, who presented it and its furniture to a 
 Church [g). 
 
 In the reign of Henry the Second, forty years after- Reign of 
 wards, Smithfield was celebrated as a Horse Market. Henry the 
 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 coui'se, and hurry along with un- 
 remitting swiftness. The jockeys, inspired with the 
 thought of applause and the hope of victory, clap spurs 
 
 (e) See Cses. Bell. G. 5, Szc, and Peece, 16th editiou. 
 Lib. U. K. "The Horse," 22. {(/) Lib. U. K. "The Horse," 
 
 (/) See Markham's Maister- 23. 
 
 O. B B 
 
370 
 
 ItACING, WAGERS AND GAMING. 
 
 Reign of 
 Richard the 
 First. 
 
 Reign of 
 John. 
 
 Reign of 
 Edward the 
 Second. 
 
 Reign of 
 Edward the 
 Third. 
 
 Reign of 
 Richard the 
 
 Second. 
 
 Reign of 
 Henry the 
 Fourth. 
 
 Reign of 
 Henry the 
 Seventh. 
 
 to their willing Horses, brandisli their whips and cheer 
 them with their cries" (A). 
 
 An old Metrical Romance records the excellence and 
 great value of two Horses belonging to Richard Coeur 
 de Leon, which he purchased at Cyprus, and which there- 
 fore were probably of Eastern origin (/). 
 
 John accumulated a very numerous and valuable stud 
 of Horses ; and he formed our breed of draught Horses 
 by importing one hundred chosen Flemish Stallions (,/). 
 
 Edward the Second, one hundred years afterwards, in 
 the beginning of the fourteenth century, purchased thirty 
 Lombardy JFar Horses, and twelve heavy draught Horses. 
 Lombardy, Italy and Spain at that time suppUed the most 
 valuable Cavalry or Parade Horses {j). 
 
 Edward the Third devoted one thousand marks to the 
 purchase of fifty Spanish Horses, and formal applications 
 were made to the Kings of France and Spain for their 
 safe conduct. The King had many Running Horses [k), 
 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 rapidly increased, and to such an extent, that in 
 A.D. 1386, a proclamation was issued regulating their price; 
 and it was ordered to be published in Lincolnshire, Cam- 
 bridgeshu'e, and the East and West Ridings of York- 
 shire {m). In this Reign Grames are first mentioned in the 
 Statute Book ; and we find that in a.d. 1389, Servants 
 in husbandry or Laboui-ers were prohibited wearing any 
 sword, buckler, or dagger ; or plaj'ing at Tennis, Football, 
 Uuoits, Dice, Casting of Stone kails, and such like importune 
 Games {n). 
 
 This Statute was confirmed and extended in the Reign 
 of Henry the Fourth, a.d. 1409, and an additional penalty 
 of six days' imprisonment was imposed (o). 
 
 In the Reign of Henry the Seventh, a.d. 1494, we find 
 the Legislature paying much attention to the breed of 
 Horses, as being of great importance to the defence of the 
 kingdom. It appears that Horses had at this time become 
 
 (A) See Fitz StejAen, and Lib. 
 U. K. "The Horse," 24. 
 
 (0 Lib. U. K. "The Horse," 24. 
 
 (.;) Ibid. 25. 
 
 (/) See Marldiam's Maister- 
 Peece, 16th edition, and Lawrence 
 on " The Horse," vol. 1, cap. 5. 
 
 (/) Lib. U.K. "The Horse," 25. 
 
 {m.) Ibid. 26. 
 
 («) 12Ric. 2, c. 6; see 26 & 27 
 Vict. 0. 125. 
 
 {o) 11 Hen. 4, c. 4, repealed by 
 33 Hen. 8, c. 9. 
 
THEIR HISTORY, RISE AND PROGRESS. 371 
 
 scarce and expensive, and it was supposed to "be the con- 
 sequence 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 Eeahn without 
 the King's Licence. But any Denizen might carry a Horse 
 beyond the sea on making oath that it was for his own use ; 
 and any Mare of three years old or upwards, whose price 
 Avas 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 shoulcl bid him seven 
 sliillings {p). 
 
 In the Reign of Henry the Eighth, a.d. 1530, it was Reign of 
 fm'ther enacted, that any person conveying any Horses, 5-^;!|^T ^^^ 
 Geldings or Mares to any parts beyond the sea, without ° 
 the King's Licence, should forfeit forty shillings for every 
 Poll {q). It appears, however, that notwithstanding these 
 enactments, good Horses continued to be scarce, aud 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 depastui'e and 
 also to cover Mares and Felys of very small statm'e." 
 To remedy this, an Act was passed in a.u. 1535, com- 
 pelling the owners and occupiers of Deer-parks of a mile 
 or upwards in cu^cumference, 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 fom-teen hands or upwards (r). 
 This Act did not extend to the counties of Westmore- 
 land, Cumberland, Northumberland and the Bishoprick of 
 Dm-ham («). 
 
 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 another 
 Act in A.D. 1540, which prohibited any stoned Horse, 
 under fifteen hands, being pastured on such lands through- 
 out the greater part of England and the whole of Wales, 
 or under fom^teen hands elsewhere {t). Any person, on 
 
 {p) 11 Hen. 7, c. 13, repealed by pealed by 26 & 27 Vict. c. 125. 
 
 25 Car. 2, c. 6. (*) 27 Hen. 8, c. 6, s. 5. 
 
 (y) 22 Hen. 8, c. 7. (0 32 Hen. 8, c. 13, s. 2, re- 
 
 (>•) 27 Hen. 8, c. G, ss. 2, 4, ro- pealed by 19 & 20 Vict. c. 64. 
 
 15 H 2 
 
]72 RACING, WAGERS AND GAMING. 
 
 measm-ing a Horse whicli was under the lawful height, 
 might seize and retain it for his own use {ii) ; the pastures 
 were to he driven once a year, and any unlikely-looking 
 beasts were to be killed (r) ; and the owner of every Horse, 
 Mare or Gelding infected with the Scab, at any time 
 pasturing on these grounds, was to forfeit ten shillings {ic). 
 An Act was also passed prescribing the number of stoned 
 troti'mg Horses for the saddle each man was to keep, ac- 
 cording to his degree (.r). 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 Beign of Queen Elizabeth, tells us that they con- 
 sisted principally of strong clumsy beasts, the few lighter 
 ones being weak and without bottom. 
 
 It appears that in this Beign Races were first established 
 in various parts of England, and the first meetings 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 " bearing away the 
 beir'(//). 
 
 In this Reign also a variety of regulations were made 
 with regard to Qaming, some of which are in force at the 
 present day. The object of the legislature was to encour- 
 age Archery, and in a.d. 1511 it was enacted, that " all 
 sorts of men under the age of foiiy years" should "have 
 bows and arrows and use shooting," and that " imlawful 
 Games" should not " be used." This, however, was fol- 
 lowed 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 
 imlawful 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 field. Slide-thrift, otherwise 
 called Shove-groat," had caused the decay of Archery (s). 
 It made various regulations concerning the use of bows and 
 
 («) 32 Hen. 8, c. 13, s. 3. (y) Lib. U.K. "The Horse," 28. 
 
 (r) Ibid. 8S. 6, 7. [z) 33 Hen. 8, c. 9 (now virtu- 
 
 (m) Ibid. s. 9. ally repealed by 3 Geo. 4, c. 41, s. 4, 
 
 {x) 33 Hen. 8, c. 5, now vii-tu- and 8 & S Vict. c. 109, s. 1), 8S. 1, 2. 
 
 ally repealed by 21 Jac. 1, c. 28. See Appendix. 
 
THEIR HISTORY, RISE AND PROGRESS. 373 
 
 arrows, and imposed a penalty of foi-ty shillings a day for 
 the maintenance of " any common House, Alley or Place 
 of Bowling, Coyting, Cloyshcayles, Half-bowl, Tennis, 
 Dicing Table or Carding," or any Game previously pro- 
 hibited by Statute, or any unlawful new Grame which 
 might afterwards be invented (a). 
 
 There was a penalty of six shillings and eightpence each 
 time for using and haunting any of the above-mentioned 
 " Houses or Plays and there playing'' (b). 
 
 Any Justice of the Peace, Mayor, Sheriff, Bailiff, &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 
 plajdng there, until the keepers should find sureties and 
 the other parties should give security to abstain from such 
 practices for the future (c). The chief authorities in 
 To\vns 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 shillings (d) ; 
 and the Leases of Houses used for unlawful Games were 
 to be void (e) . 
 
 " No manner of artificer or craftsman, husbandman, 
 apprentice, labourer, servant at husbandry, jomnejonen, 
 mariners, fishermen, watermen or any serving man," was 
 to play at " the Tables, Tennis, Dice, Cards, Bowles, 
 Closh, Coyting, Legating, or any other unlawful Game 
 out of Christmas, imder the pain of twenty shillings for- 
 feit each time ;" and in Christmas they were to play in 
 " their master's houses or in theii' 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 (/). 
 
 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 (g) . And a 
 master might license his servant to play with him or any 
 other gentleman at his own house or in his presence (h) . 
 Also a nobleman or person with an income of 100/. a-year 
 might license his servants to play among themselves at his 
 or their houses, gardens or orchards (i) . 
 
 (a) 33 Hen. 8, c. 9, s. 11. 27 Vict. c. 125. 
 
 {b) Ibid. 8. 12. (/) Ibid. s. 16. 
 
 (c) Ibid. s. 14. (ff) Ibid. s. 13. 
 
 (d) Ibid. s. 15. (70 Ibid. s. 22. 
 
 (e) Ibid. s. 21, repealed by 26 & (J) Ibid. s. 23. 
 
374 
 
 RACING, WAGERS AND GAMING. 
 
 Reign of 
 Edward the 
 Sixth. 
 
 Reign of 
 Philip and 
 Mary. 
 
 Reign of 
 Queen Eliza- 
 beth. 
 
 In tlie Eeign of Edward the Sixth, it was found that a 
 great many Horses had been exported to foreign countries, 
 and particularly to Scotland, which was supposed 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 {j). But every person was 
 permitted to take abroad with him Horses or Greldings, 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 (/). 
 
 It appears that so far the Statutes on the subject of 
 Gaming had been directed against it, because it was sup- 
 posed to '\\ithdi'aw 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 persons, 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 other unlawful Grames, many unlawful assemblies, 
 conventicles, seditions, and conspiracies," had been daily 
 and secretly practised, and robberies and other misde- 
 meanours 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 Grames be used," and all Placards, Licenses or 
 Grrants were made void (;;?) . 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 («) . 
 
 Notwithstanding the regulations made in the Reign of 
 Edward the Sixth, it appears that a large number of Horses 
 were exported by persons who unscrupulously took the 
 
 {j) 1 Edw. 6, c. 5, s. 1, now re- {in) 2 & 3 Ph. & M. c. 9, repealed 
 
 pealed by 3 Geo. 4, c. 41. by 26 & 27 Vict. c. 125. 
 
 {k) Ibid. s. 6. («) 2 & 3 Ph. & M. c. 7, Appen- 
 
 (/) Ibid. 8. 9, di.x; ; and see Stolen Horses, ante, 
 
 Part 1, Chap. 3. 
 
THEIR HISTORY, RISE AND PROGRESS. 375 
 
 required oath, and the difficulty of punishing then was so 
 great, that in the Reign of Queen Elizabeth, 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 men- 
 tioned in the Act of Henry the Eighth (7;), 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 those fen Counties was reduced to thirteen hands {q) . 
 
 We have seen that in the Reign 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 claim- 
 ing 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 cer- 
 tain additional forms to be observed in sales at such places, 
 and making it a matter of greater difficulty to sell a stolen 
 Horse (s). _ This is the Act now in force, and which we 
 have already considered. 
 
 In the Reign of James the First, an immaterial and Reign of 
 trifling alteration was made in the Law of Gaming by the ^^^^ *^^® 
 repeal of the Statute of Richard the Second in A.D. 1623 (/). 
 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 acknowledged system, 
 and were mixed up with other exercises of skill and activity. 
 The pastime had continued on the same footing since the 
 time of Henry the Eighth, but this Reign may be con- 
 sidered the era in which Racing began to be ranked as a 
 
 (0) 5 Eliz. c. 19, repealed by 26 («) 31 Eliz. c. 12, Appendix ; 
 
 & 27 Vict. c. 125. and see Stolen Horses, ante, Part 1, 
 
 {p) 32 Hen. 8, c. 13. Chap. 3. 
 
 (?) 8 Eliz. c. 8, repealed by 19 & (t) 21 Jac. 1, c. 28, s. 11, re- 
 
 20 Vict. c. 64. pealed by 10 & 20 Vict. c. 64. 
 
 (>■) 2 & 3 Ph. & M. 0. 7. 
 
376 
 
 KACING, WAGERS AND GAMING. 
 
 Reign of 
 Charles the 
 First. 
 
 Reign of 
 Charles the 
 Second. 
 
 distinct sport. James the Fii-st was extremely fond of 
 field sports ; he established Races on a new footing ; under 
 his patronage Rules were promulgated for their regulation, 
 and his favoiuite coui"ses 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 considerable 
 improvement in the breed of the animal was thus effected (u). 
 
 Charles the First established Races in Hyde Park and at 
 Newmarket ; yet, although these were discontinued during 
 the Protectorate, attention was not withdrawn from breed- 
 ing, and Cromwell had his stud of Race Horses (,r). 
 
 On the Restoration, a new impulse was given to gaiety 
 and amusement of every kind, and the Newmarket meet- 
 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 pm-chased 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 
 Uueen, Catherine of Braganza (/y). 
 
 No sooner had Horse Racing been fully established, 
 than we find an Act was passed to endeavoui* 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 deceiffiil, dhorderhj and excessive Gamhig^^ and 
 recites that " all lawful Grames and exercises should not 
 be otherwise used than as innocent and moderate recrea- 
 tions, 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 dishonest, 
 lewd and dissolute course of life, and to the circumventing, 
 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 
 
 {n) Lib. IT. K. "The Horse," 
 28; and 31 Law Mag. 65. 
 
 (x) Lawrence on "The Horse," 
 vol. i. p. 218; and Lib. U. K. 
 
 "The Horse," 28. 
 
 (y) Lib. U. K. "The Horse," 
 29 ; and Martin arqucndo, Apple- 
 garth V. Collcy, 10 M. & W. 728. 
 
THEIR HISTORY, RISE AND PROGRESS. 377 
 
 estates and fortunes, and withdrawing them from noble 
 and laudable employments and exercises" (s). By this 
 Act persons winning by fraud, or cheating at Cards, Dice, 
 Tables, Tennis, Bowles, Kittles, Shovel-board, Cock-fight- 
 ings, Horse Eacings, Dog-matches, Foot Eaces, and all other 
 Grames and Pastimes, were to forfeit treble the sum or 
 value of the money so won {a). 
 
 Every person losing above 100/. on ticket or credit at 
 these or any other Games and Pastimes, either by bearing 
 a pai-t in them or betting, was discharged from paying any 
 part of the money; all secmities given for it were to be 
 void ; and the winner was to forfeit treble the sum above 
 100/. so won {b) ; and it was held that an agreement to run 
 a Horse Eace for more than 100/. a-side w^as prohibited by 
 this statute (r). 
 
 In the Eeign of William the Third, a.d. 1699, it Reign of 
 appears that certain Grames called Lotteries had been set ^^^^"^ ^^^'^ 
 up throughout England and Wales, by means of which 
 great sums of money had been fraudulently got from 
 unwary persons, and from the Childi'en and Servants of 
 several Greutlemen and Merchants; to remedy this, an Act 
 was passed " for suppressing Lotteries," which declared 
 them to be public nuisances, and imposed a penalty of 
 500/. on every keeper of a Lottery, and 20/. on every 
 player (r/). 
 
 In the Eeign of Queen Anne the Darley Arabian was Eeign of 
 introduced by Mr. Darley, which tended very much to Queen Anne, 
 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 Eeign that the Act of Charles the 
 Second was insufficient to prevent the mischiefs arising 
 from the spirit of Grambiing then existing, and which it 
 appears had become so very prevalent that further legisla- 
 tion was required. Therefore, in a.d, 1710, 9 Anne, 
 c. 14, was passed, being " An Act for the better prevent- 
 ing of excessive and deceifful Gaming.^' It recited that 
 " the laws now in force for preventing the mischiefs 
 which may happen by Gaming have not been found suf- 
 
 (z) 16 Car. 2, c. 7, now repealed (c) Edgebury v. Rosindah, 2 Lev. 
 
 by 9 Anne, c. 19, and 5 & 6 Will. 4, 94 ; .S'. C. 1 Ventr. 253. 
 c. 41. {d) 10 & 11 Will. 3, c. 17. 
 
 (rt) Ibid. s. 2. (e) Lawrence on " The Horee," 
 
 [b) Ibid. s. 3. vol. i. p. 222. 
 
378 RACING, WAGEES AND GAMING. 
 
 ficient for tliat piu'pose ;" and enacted, that all moi'tgages 
 and securities, where the consideration was for money 
 won by Graming or Betting, or for repayment of money 
 lent at Gaming or Betting, were to be void ; that all 
 property 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 prevent 
 this were to be deemed fraudulent and void (/). 
 
 The loser of 10/. or upAvards by playing or betting at 
 any Grame might sue for the money so lost within three 
 months ; and if he did not sue mthin 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 oifence was committed {g) ; any 
 person winning by fraud by betting or playing at any 
 Grame, or any person winning above 10/. 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 eases of wilful 
 perjury (70. _ 
 
 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 behavioiu' for the space of 
 twelve months (/) ; clming which time, if they played or 
 betted to the amount of twenty shillings at any one time 
 or sitting, they were to forfeit their recognizances {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 (/»■). But this Act was not 
 to prevent Graming in any of the Queen's Palaces duiing 
 her residence there (/). 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/. a- side or upwards was illegal. In this Eeign 
 two Acts were passed to enforce 10 & 11 Will. 3, c. 17, 
 with regard to Lotteries {)i). 
 Eeign of In a.d. 1721, and the following year of the Reign of 
 
 (/) 9 Anne, c. 14, s. 1. {m) Blaxton v. Pijc, 1 Wils. 309 ; 
 
 [g) Ibid. s. 2; FredericJc, Bart. Cla>/toii v. Jc>i?iiii(/s, 2 W.Bla. 706. 
 v. Zool-xp, 4 'Burr. 2018. (;/) These -were 9 Anne, g. 6, ss. 
 
 (/() Ibid. s. 5. 56, 57, now virtually repealed; and 
 
 (j) Ibid. s. 6. 10 Anne, c. 26, s. 109, repealed by 
 
 (J) Ibid. s. 7. 49 Geo. 3, c. 109, and 1 & 2 Will. 4, 
 
 {/>■) Ibid. s. S. c. 36. 
 (/) Ibid. s. 9. 
 
THEIR HISTORY, RISE AND PROGRESS. 379 
 
 George the First, an attempt was made by fiu-ther legis- George the 
 lation to suppress unlawful Lotteries (o), and to prevent 3^"'^^- 
 foreign Lotteries being carried on in this kingdom {p). 
 
 In the Eeign of Greorge the Second it appears that Reign of 
 there was an excessive increase in Gaming, and to re- ^eorge the 
 medy the evil, 12 Geo. 2, c. 28, was passed, a.d. 1739, 
 being " An Act for the more effectual preventing of cx- 
 cessire 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, 
 c. 9 (r) ; and another to prevent the selling chances in 
 Foreign Lotteries (s) . 
 
 It was foimd 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 imder 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 Legislatin-e, endeavouring to remedy 
 these evils, passed 13 Geo. 2, c. 19, in a.u. 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 owners, and no person was to 
 start more than one for the same Plate, under pain of 
 forfeiting the Horse (/). No Plate was 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 advertising such a Race was subject to the penalty 
 of 100/. {ii). An arbitrary standard of weights was fixecl, 
 a five-year-old Horse was to carry ten stone, a six-year- 
 old eleven stone, and a seven-year-old twelve stone, under 
 a penalty of 200/. (jic), and every Race was to be begun 
 and ended in the same day (?/) . The entrance money was 
 
 (o) 8 Geo. 1, 0. 2, ss. 36, 37. (.?) 6 Geo. 2, c. 35, ss. 29, 30. 
 
 (p) 9 Geo. 1, c. 19, virtually (t) 13 Geo. 2, c. 19, repealed in 
 
 repealed by 7 Geo. 3, c. 48, ss. so far as it relates to Horse-Racing 
 
 4, 5. by 3 & 4 Vict. c. 5. 
 
 (g) 12 Geo. 2, c. 28, ss. 1, 2, 3. (u) 13 Geo. 2, c. 19, s. 2. 
 
 {r) 2 Geo. 2, c. 28, s. 9, Appen- (.)) Ibid. s. 3. 
 
 dix. ( I/) Ibid. 8. 4. 
 
580 RACING, WAGERS AND GAMING. 
 
 to be repaid to the second best Horse (;:). 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 Ne^svanarket 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 
 Grames with 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 deceiffid Gaming ; and 
 to restrain and prevent the excessive increase of Plorse 
 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 with 
 Cards or Dice, or himself playing at any of these Games, 
 shoidd be liable to the several penalties of 12 Geo. 2, 
 e 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 unlawf id 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 (g). 
 
 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 
 sufficient encouragement to breeders to raise their cattle 
 to the utmost possible size and strength ; and, therefore, 
 some of the restrictions which had been thought favom-- 
 able to the breed of Horses were removed, and it was 
 
 (2) 13 Geo. 2, c. 19, s. 7. (e) 18 Geo. 2, c. 34, ss. 1,_ 2, 
 
 («) Ibid. s. 8. Appendix, repealed by 8 & 9 Vict. 
 
 (b) Ibid. s. 2. c. 109, s. 15. 
 
 (c) Ibid. s. 5. (/) Ibid. s. 7. 
 {d) Ibid. 8. 9, Appendix. (ff) Ibid. s. 8. 
 
THEIR HISTORY, RISE AND PROGRESS. 381 
 
 made lawful for a person to run any Matcli, 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, e. 19, relating to weights {//), 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 (/). 
 
 In the Reign of George the Third, a.d. 1774, it having Reign of 
 been found by experience that making Insm-ances 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" {k). In the same Reign, a.d. 
 1787, an Act w^as passed to render more effectual the laws 
 then in being for suppressing unlawful Lotteries (/) ; but 
 the Government raised money by State Lotteries. In 
 A.D. 1802 an Act was passed to suppress certain Games or 
 Lotteries called Littlegoes, under very heavy penalties (m). 
 In this Reign there was no legislative interference with 
 regard to Racing, but the breed of Horses continued 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(;?), 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 impoi-ting 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, Reign of 
 and was owner of some first-rate Horses. In this Reign, S®"Ti^ *^^ 
 A.D. 1823, an act was passed authorizing the infliction 
 of imprisonment and hard labour on persons convicted of 
 keeping a common Gaming House (q) ; and people playing 
 or betting on any Game of chance in the Street or High- 
 way are to be deemed rogues and vagabonds, and be liable 
 
 [k] 18 Geo. 2, c. 34, s. 11. (w) 49 Geo. 3, c. 98, Sched. (A.), 
 
 (i) Bidmead v. Gale, 4 Burr. Outwards, repealed by 6 Geo. 4, 
 
 2432. c. 105. 
 
 (A-) 14 Geo. 3, c. 48. (o) Ibid. Inwards. 
 
 (0 27 Geo. 3, c. 1, repealed by [p] 59 Geo. 3, c. 52, s. 1, and 
 
 46 Geo. 3, c. 148, s. 64. Table (B.), Inwards, repealed by 
 
 {m) 42 Geo. 3, c. 119. C Geo. 4, c. 105. 
 
 [q) 3 Geo. 4, c. 114. 
 
382 
 
 RACINO, WAGERS A^'D GAMING. 
 
 Reign of 
 "William the 
 Fourth. 
 
 Reign of 
 Queen Vic- 
 toria. 
 
 to imprisonment with liard laLoiir for any term not ex- 
 ceeding three calendar months (/■) . 
 
 In tlie Eeign of William the Fom'th an Act was passed, 
 A.D. 1835, which is now in force. It is 5 & 6 Will. 4, c. 41, 
 heing " An Act to amend the Law relating to Secmities 
 given for Considerations arising ont of Graming, usurious, 
 and certain other illegal Transactions." It repealed 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 consi- 
 deration, or made such securities enure for the benefit of 
 parties in remainder, and enacted that such secm-ities 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 consideration, 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 Eeign also an Act was passed to pre- 
 vent the advertising of any foreign or illegal Lottery under 
 a penalty of 50/. {u). 
 
 When Queen Victoria ascended the throne, the law of 
 Racing, Wagers and G-aming was in a most unsatisfactory 
 condition; but the Judges began to look more favourably 
 upon Sporting transactions. Formerly, the tendency of 
 the Com'ts was towards an extension of the prohibitory 
 enactments, and a corresponding strict construction of any 
 relaxations of them. But now the current of j udicial opinion 
 took another direction, and a different view of the subject 
 prevailed. Racing and matters connected with it Avere no 
 longer regarded in Westminster Hall \\i\h. an unfavourable 
 eye, and it is, perhaps, hardly going too far to assert, that 
 some transactions were supported which former Judges 
 would barely have allowed to be argued {x) . Steeple- 
 chases were held to be legal (//), as also Trotting matches 
 along a road (s) . 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 tani actions against certain in- 
 fluential individuals. 
 
 (r) 5 Geo. 4, c. 83, s. 4, Appen- 
 dix. 
 
 (.y) 5 & 6 Will. 4, c. 41, ss. 1, 3, 
 Ajipendix. 
 
 {t) Ibid. 8. 2, and see Gaming, 
 post, Chap. 4. 
 
 («) 6 & 7 WiU. 4, c. 66. 
 
 {x) 31 Law Mag. 72. 
 
 ( y) Ecans v. Pratt, 4 Scott, N. 
 R. 378 ; S. C, 1 DowL, N. S. oOo. 
 
 (:;) Challand v. Bra>j^ 1 Dowl., 
 N. S. 783. 
 
THEIR HISTORY, RISE AND PROGRESS. 383 
 
 In A.D. 1840, 3 & 4 Vict. c. 5 was passed, winch re- 
 pealed so much of 13 Geo. 2, c. 19, as relates to the 
 subject of Horse Racing [a) ; and persons sued for penalties 
 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 
 liacing and Gaming were nearly the whole of 33 lien. 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, 
 e. 34 ; b Sc Q Will. 4, c. 41 ; and 3 & 4 Vict. c. 5. 
 
 Such being the state of the law, the famous case of 
 Applcgarth 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 ; that 
 a Horse Race might be run for a sweepstakes of 21. each, 
 as there could not be any loser to the amount of 10/.; 
 and therefore it was 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 co)i- 
 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, nmnerous 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.; 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, 
 on apphcation 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. Sailing 
 matches. Coursing matches. Fencing matches, Golf, 
 Wrestling matches. Cricket, Tennis, Fives, Rackets, Bowls, 
 
 («) 3 & 4 Vict. c. 5, s. 1. (c) Applcgarth v. C'o/fcy, 10 M. & 
 
 (A) Ibid. s. 2. "W. 728 ; and see post, Chap. 4. 
 
384 RACING, WAGERS AND GAMING. 
 
 (iuoits, Curling, Putting Stone, FootLall or any hoxa fide 
 variety, or any aimilar description of these sports, pastimes 
 and games [d) ; no common informers, but only the actual 
 loser, or his representatives, were to commence any proceed- 
 ings 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 enumerated [e). And if such 
 proceedings were in the nature of an indictiuent, 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 Yict. c. 109 was passed, in- 
 tituled " An Act to amend the Law concerning Games 
 and Wagers," and received the Poyal Assent on the 8th 
 of August, 1845. It recites that " The Laws heretofore 
 made in. restraint of unlawful Gaming have 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 '6'6 Hen. 8, c. 9, whereby any Game of mere skill 
 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 Arrows, 
 and also so much of the Act as requires the Mayors, 
 Sheriffs, 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 100/. a year, to license his servants or 
 family to play {(j). It repeals the whole of 16 Car. 2, c. 7, 
 and so much of 9 Ann. c. 14, as was not altered by 5 & 6 
 Will. 4, c. 41, and also so much of 18 Geo. 2, c. 34, as re- 
 lates 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 smn or value of 10/., or within 
 the space of twenty-foui' hom's the smn or value of 20/. [h). 
 
 {d) 7 & 8 Vict. c. 3, 8. 1. {g\ 8 & 9 Vict. c. 109, s. 1, Ap- 
 
 {e) Ibid. s. 3. pendix. 
 
 (/) Ibid. s. 4. [h) Ibid. s. 15, Appendix. 
 
THEIR HISTORY, RISE AND PROGRESS. 385 
 
 This Statute and the 17 & 18 Yict. c. 38, which is supple- 
 mentaiy to it, make 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. 
 
 It may here be mentioned, that the Statutes now in 
 force with reference to Racing and Graming, 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 Graming ; 2 Greo. 2, c. 28, 
 s. 9 ; 12 Geo. 2, c. 28 ; 13 Geo. 2, c. 19, sections 9 and 10; 
 18 Geo. 2, c. 34, sections 1, 2, 4, 5, 6, 7, 9 ; 5 & 6 Will. 4, 
 c. 41, which incorporates and alters 9 Ann. c. 14, s. 1, and 
 given in the Appendix ; 8 & 9 Yict. c. 109 ; 16 & 17 Vict, 
 c. 119; 17 & 18 Vict. c. 38, which is a supplementary Act 
 to 8 & 9 Vict. c. 109 ; and 37 & 38 Vict. c. 15. 
 
 By the 19 & 20 Vict. c. 82, the duty of 3/. 17.s'. payable 
 on every Horse kept or used for the purpose of Racing {i) 
 was made payable for every Horse which should start or 
 run for any Plate, Prize or sum of money or other thing {k) . 
 
 The whole of this Act is, however, repealed by the 37 & Repeal of 
 
 38 Vict. c. 16, ss. 11, 21, and the duty on Race Horses is 5"*^°^ 
 
 T T ^ ^ "^ Kace Horses, 
 
 abonshed. 
 
 By an Act passed in this Reign the duty on importing 
 a Horse was reduced to 1/. (/) ; and now Horses may be 
 imported duty free {m). Acts were passed from time to 
 time to indemnify persons connected with Art Unions 
 from certain penalties {n) ; and at last an Act was passed 
 under which they may be legalized by charter (o), which, 
 was supplemented by another Act to remove certain doubts 
 which had arisen as to their legality (p). The 6 & 7 Will. 
 4, c. 66, was also amended so as more effectually to prevent 
 the advertising of foreign and other illegal Lotteries (q). 
 
 After the passing of 8 & 9 Vict. c. 109, an attempt was 
 made to set up Racing Lotteries and Sweeps, and it was 
 suggested diuing the argument of the case of Gatty v. 
 Field (r), that under the proviso of the 18th section of the 
 above Statute, Derby Lotteries were no longer illegal. 
 
 (i) 16 & 17 Vict. c. 90. Vict. c. 57. 
 
 [k] 19 & 20 Vict. c. 82, s. 2. (o) 9 & 10 Vict. c. 48, Appen- 
 
 [l) 5 & 6 Vict. c. 47, Table (A), dix. 
 Class 1, repealed by 8 & 9 Vict. {p) 21 & 22 Vict. c. 102, re- 
 
 c. 84. pealed. 
 
 (»«) 9 & 10 Vict. c. 23, Table (?) 8 & 9 Vict. c. 74. 
 
 (IV.). {>■) Gatti/ V. Field, 9 Q. B. 431 ; 
 
 («) 7 & 8 Vict. c. 109 ; 8 & 9 S. C. 15 L. J., Q. B. 408. 
 
 o. c c 
 
386 RACING, WAGERS AND GAMING. 
 
 They were liowever held to be on the same footing as 
 other Lotteries, and after that time were gradually super- 
 seded by Offices kept for the purpose of Betting. In these 
 places Lists were exhibited and Odds given in sums 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 Eace. 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. 
 16 & 17 Vict. To remedy these evils, 16 & 17 Yict. c. 119 was passed, 
 ^- 11^- being "An Act for the Suppression of Bettiug Houses," 
 
 which received the Eoyal Assent on the 20th of August, 
 1858. 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 Bet- 
 ting 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 Betting Houses 
 being kept (.s), and makes them Graming Houses within 
 8 & 9 Yict. c. 109 (/). It forbids any person using a place 
 for the purpose of betting with persons resorting there, or 
 using a place for the piu-pose of receiving deposits on 
 Bets {i(), and imposes penalties on persons connected with 
 Betting Houses (.r), or exhibiting placards or advertising 
 them (y). This most stringent Act (c), containing various 
 other provisions, has had the effect of putting down Bet- 
 ting Houses in those parts of Grreat Britain, to which it 
 extends. It does not extend to Scotland {a). 
 37Vict. c. 15. The 37 Yict. c. 15 (The Betting Act, 1874), amends 
 the 16 & 17 Yict. c. 119, and extends its provisions to 
 Scotland, and by sect. 1 it shall be construed as one 
 with that Act, which is referred to as the Principal Act. 
 By sect. 3, where any letter, circular, telegram, placard, 
 handbill, card or advertisement is sent, exhibited or pub- 
 lished, (1) whereby it is made to appear that any person, 
 either in the United Kingdom or elsewhere, will, on appli- 
 cation, give information or advice for the purpose of or 
 with respect to any such Bet or Wager, or any such event 
 
 («) 16 & 17 Vict. 0. 119, s. 1, (.r) Ibid. ss. 3, 4. 
 
 Appendix. (y) Ibid. s. 7. 
 
 (0 Ibid. s. 2. (z) See post, Chap. 5. 
 
 {ii) Ibid. ss. 1, 3, Appendix. («) Ibid. s. 20. 
 
THEIR HISTORY, RISE AND PROGRESS. 387 
 
 or contingency as is mentioned in the Principal Act, or 
 will make on behalf of any other person any such Bet or 
 Wager as is mentioned in the Principal Act ; or (2) with 
 intent to induce any person to apply to any house, office, 
 room or place, or to any person, with the view of obtaining 
 information or advice for the purpose of any such Bet or 
 Wager, or with respect to any such event or contingency as 
 is mentioned in the Princii^al Act ; or (3) inviting any per- 
 son to make or take any share in, or in connexion with, 
 any such bet or wager ; every person sending, exhibiting 
 or publishing, or causing the same to be sent, exhibited or 
 published, shall be subject to the penalties provided in the 
 seventh section of the Principal Act with respect to offences 
 under that section (b). 
 
 The 42 & 43 Vict. c. 18, after reciting that " the fre- Racecourses 
 quency of Horse Races in the immediate neighbourhood Licensing 
 of the Metropolis is productive of much mischief and ° ' ' " 
 inconvenience, and the holding of such Paces in thickly- 
 populated places near the Metropolis is calculated to cause, 
 and does in fact cause, annoyance and injury to persons 
 resident near to places where such Paces are held ;" and 
 (sect. 1) enacting that " a Horse Pace within the meaning 
 of this Act shall mean any Pace in which any Horse, 
 Mare or Gelding shall run, or be made to run, in competi- 
 tion with any other Horse, Mare or Gelding, or against 
 Time, for any prize of what nature or kind soever, or for 
 any Bet or Wager made or to be made in respect of any 
 such Horse, Mare or Gelding, or the riders thereof, and at 
 "which more than twenty persons shall be present," pro- 
 ceeds (sect. 2) to declare all Horse Paces unlawful within 
 ten miles of Charing Cross unless licensed pursuant to the 
 provisions contained in sects. 3 and 4 of the Act. The 
 Act also imposes certain penalties on persons convicted of 
 taking part in unlicensed Horse Paces, and on the owners 
 and occupiers of the ground where the unlicensed Horse 
 Paces take place ; and (sect. 7) enacts that every Horse 
 Pace held or taking place in contravention of the provi- 
 sions of the Act shall be deemed to be a nuisance, and 
 shall be liable accordingly (c). 
 
 {b) 37 Vict. c. 15, Appendix. (r) 42 & 43 Vict. c. 18, Appendix. 
 
 cc2 
 
( 388 
 
 CHAPTER II. 
 
 RACING, STAKEHOLDERS, AND STEWARDS, 
 
 Racing. 
 
 The Law as to Racing 389 
 
 liights of Fart-Oivners id. 
 
 Custom to Race id. 
 
 To resort to Races id. 
 
 Rut though a good Custom, not 
 an Easement within the Pre- 
 scription Act 390 
 
 Stakeholdees. 
 
 Swcepstahcs 390 
 
 Mcdches id. 
 
 The Act for the Suppression of 
 
 Betting Houses id. 
 
 Entry for a Race 391 
 
 Race not to be rumvithin a Year id. 
 
 ^'- Scratching''"' a Race Horse .. id. 
 Clerh of the Course usually 
 
 Stakeholder 392 
 
 Has no Right to the Stakes .... id. 
 Ground of Action against Stake- 
 holder id. 
 
 Position of Stakeholder towards 
 the Parties, if the Race is not 
 
 to be, or cannot be, run .... id. 
 
 Cannot set off an unpaid Stake .. 393 
 
 Where he may cash a Cheque . . id. 
 Stake must abide the Event of a 
 
 legal Contract id. 
 
 A Foot Race id. 
 
 Batty v. Marriott overruled by 
 
 Diggle V. Higgs 394 
 
 Judgment of Lord Cairns, L. C. id. 
 Recovery of Money paid on an 
 
 illegal Contract 396 
 
 What the Party should do .... id. 
 Demand before the Money is paid 
 
 over id. 
 
 Bringing anActioti not sufficient. 397 
 Where the Money is paid over 
 
 without Dispute id. 
 
 Where a Horse is disqualified . . id. 
 Where Owner knows the Dis- 
 
 qualif cation 398 
 
 . Proper Party to receive the Stakes id. 
 Under xvhat Circumstances Win- 
 ner may maintain cm Action .. id. 
 
 A Cricket Match 399 
 
 A Wrestling Match id. 
 
 A Dog Fight id. 
 
 Loser may recover his Stake 
 ivhere there has been Fraud . . 399 
 
 How he may waive his Claim . . 400 
 
 Where a Stakeholder may re- 
 cover from, the Winner id. 
 
 3Ioney in the hands of a Stake- 
 holder does not pass as " his 
 Moneys'^ under Depositor's 
 Will id. 
 
 Stewaeds. 
 
 Their Duties 401 
 
 Disputes to be settled by them . , id. 
 
 Award should be made by all . . id. 
 
 Custody of the Stakes in the 
 meantime 402 
 
 Legal Position of Steicards .... id. 
 
 Decision not necessarily invali- 
 dated by one of them being 
 interested id. 
 
 Decision of two out of three 
 Stewards held binding id. 
 
 Stewards differ from legal Arbi- 
 trators 403 
 
 Judge's Powers do not accrue if 
 Jtace is invalid id. 
 
 SteivarcVs Decision maintained 
 by the Court of Exchequer . . id. 
 
 Newcomen v. Lynch 404 
 
 Provisional Decision id. 
 
 Appointment of a Judge 40-5 
 
 Negligence in not appointing one 406 
 
 Decision of the Umpire or Com- 
 mittee id. 
 
 When Jurisdiction has not at- 
 tached id. 
 
 Terms of a Race 408 
 
 Rules of a Regatta id. 
 
 Stnvards, ^-c. cannot waive any 
 Condition of a Race 409 
 
 Rules of the Jockey Club 410 
 
 Arbitration of the Jockey Club . , id. 
 
 Sporting Phraseology id. 
 
 A "■Selling'' Race 411 
 
 A professional Jockey id. 
 
 Horse regularly hunted with 
 Hounds id. 
 
 Match for a particular Meeting . id. 
 
 Ordering off the Grand Stand ... 412 
 
 Ordering Goods 413 
 
RACING. 389 
 
 RACING. 
 
 There are now no longer any restrictions witli regard to The law as to 
 Racing, and transactions of this description are governed ^'^cmg. 
 by the same laws as all other contracts. 
 
 Race Horses may be owned by two persons as tenants Rights of 
 in common, claiming under different titles, and each part-owners, 
 having the right to take the Horse, and to use it exclu- 
 sively, not destroying it. And such being their rights, 
 money expended by one according to a previous arrange- 
 ment for their common benefit, is recoverable from the 
 other (a). Thus in a case in which the plaintiff and de- 
 fendant, owning a Horse in this way, agreed that the 
 plaintiff' should have the entire management of the Horse, 
 and that the expenses of keeping, training, and running 
 him should be borne, and his winnings shared, by both 
 equally ; and the Horse having won nothing, the plaintiff 
 paid the whole expenses ; it was held that even if a partner- 
 ship existed between the plaintiff and defendant (and it 
 was held by Cockbiu^n, C. J., that it did) in the manage- 
 ment and running of the Horse, half the sum expended by 
 the plaintiff was in the nature of an advance by him of 
 capital on behalf of the defendant, and which he was 
 entitled to recover from the defendant (a). 
 
 A custom for the freemen and citizens of a particular Custom to 
 town to enter upon a certain piece of land on a particular ^^^^' 
 day for the purpose of Horse-Racing is a good custom, 
 and in pleading it, it is not necessary to aver that the 
 particular day was a seasonable one {b). But such a 
 customary right can only be applicable to certain inha- 
 bitants of the district where the custom is alleged to exist, 
 and cannot be claimed by the public at large ; and there- 
 fore if alleged to be in all the Queen's subjects, it is 
 bad (c). 
 
 A right to race, and a right to resort to races, are on the To resort to 
 same footing ; accordingly where a person pleaded to an races, 
 action of trespass on Newmarket Heath during the Races 
 a common right for all persons to go and remain for a 
 reasonable time for the purpose of witnessing the Races, 
 the plea was held to be a bad one (c) . Nor does a right of 
 highway include a right to race {d), or a right in the public 
 to resort to Races (c). 
 
 («) French v. Styring, 26 L. J., (c) Earl of Coventry v. Willes, 9 
 
 C. P. 181. L. T., N. S. 384. 
 
 {b) Mounsey v. Ismay, 1 H. & C. {d) Sowerby v. Wadsivorth, 3 F. 
 
 729. & F. 734. 
 
390 
 
 RACING, ^STAKEHOLDERS AND STEWARDS. 
 
 But though 
 a good Cus- 
 tom, not an 
 Easement 
 within the 
 Prescription 
 Act. 
 
 But thougli it is a good custom at Common Law for tlie 
 citizens of a particular town to enter upon a certain piece 
 of land on a particular day for tlie purpose of Horse- 
 Racing, this is not " an easement" mtbin the Prescription 
 Act (e), the words of which are " no claim which may be 
 lawfully made at common law by custom, prescription, or 
 grant, to any way or other easement, or to any water- 
 course, or to the use of any water to be enjoyed upon any 
 land, &c., when such way or other matter shall have been 
 actually enjoyed by any person claiming right thereto 
 without interruption for twenty years, shall be defeated or 
 destroyed by showing only that such way, &c. was first 
 enjoyed at any time prior to such period of twenty years." 
 To make this custom to race a claim of right within the 
 term " easement" in this section, it must be one analogous 
 to that of a right of way, and a right of watercourse which 
 follows it, and must be a right of utility and benefit, and 
 not one of mere recreation and amusement (/). 
 
 Sweepstakes. 
 
 Matches. 
 
 The Act for 
 the sujjpres- 
 sion of Bet- 
 ting Houses. 
 
 STAKEHOLDERS. 
 
 A Sweepstakes is a Stake or Fund for which at least 
 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 {(/). 
 
 Many Races run with Horses are Matches, that is, 
 where the Horse of one person runs against the Horse of 
 another for certain Stakes to be awarded to the Winner. 
 Such Matches are no doubt lawful, but it seems that the 
 Winner would not be entitled to recover the Stakes from 
 the Stakeholder, or from the Loser, if they were in his 
 hands, as the transaction is simply a Wager and void 
 under the 8 & 9 Yict. c. 109, s. 18 (//). 
 
 The " Act for the Suppression of Betting Houses " (?) 
 does not " extend to any person receiving or holding any 
 money or valuable thing by way of Stakes or Deposit to 
 
 (e) 2 & 3 Will. 4, c. 71, s. 2. 
 
 (/■) Per Martin, B., Moioiseij v. 
 Ismaij, 34 L. J., Ex. 52. 
 
 {g) Batty v. Marriott, 5 C. B. 
 831. 
 
 (A) Batson v. Xeicman, L. E,., 1 
 
 C. P. D. 573 ; 25 W. K. 85 ; and 
 see Bifjglc v. Higos, L. P., 2 Ex. 
 
 D. 422; 46 L. J., Ex. 721. A 
 contrary opinion was expressed in 
 
 the third edition of this work ; hut 
 the authority for that opinion, viz. , 
 Batty V. Marriott, 5 C. B. 831, has 
 since been overruled by I)iggle v. 
 Hiqgs. See post, p. 394. 
 
 {() 16 & 17 Vict. c. 119, s. 6, Ap- 
 pendix ; and see Wagers, post, 
 Chap. 5 ; Betting Houses, post, 
 Chap. 6. 
 
STAKEHOLDERS. 391 
 
 be paid to tlie winner of any Race, or lawful Sport, Game 
 or Exercise, or "to be paid " to the Owner of any Horse 
 engaged in any liace," as, for instance, to the second 
 Horse. 
 
 The 18th section of 8 & 9 Yict. c. 109, which makes Entry for a 
 void all contracts or agreements by way of Graming or ^'^'^s- 
 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 Granie, 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 manner. 
 
 Many of the great Races are not run within a year liace not to _ 
 from the time the Horses are entered, and therefore to ^® ^^^ withm 
 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 writing 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 {k) . However, this need not cause any trouble, as it 
 maybe effected by letter (/). 
 
 The owner of a Horse entered for a Race can withdraw, "Scratching" 
 or, as it is termed, " scratch " him before the Race is run. aEaceHorse. 
 A curious application was made to Vice-Chancellor 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 immediately, 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 
 restrained from withdrawing or erasing the above-men- 
 tioned Racehorse from the Book in which his name was 
 entered for the Derby or St. Leger Stakes, or any other 
 Race. 
 
 (/■) See Bentinvk v. Connop, 5 Q. (/) See Requisites of the Statute 
 
 B. 693 \ S.G.I Day. & M. 536. of Frauds, ante, Part 1, Chap. 1. 
 
392 
 
 RACING, STAKEHOLDERS AND STEWARDS. 
 
 Clerk of the 
 Course 
 usually 
 Stakeholder. 
 
 Has no right 
 to the stakes. 
 
 Ground of 
 action against 
 Stakeholder. 
 
 Position of 
 Stakeholder 
 towards the 
 parties, if the 
 Race is not 
 to be, or can- 
 not be, run. 
 
 The Countess also filed a Bill in the Court of the Yice- 
 Chancellor of England, stating* that the personal .estate 
 was sufficient, 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 
 Yice-Ohancellor Knight Bruce's Court as to the manner 
 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 arrangement 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 Book (m). 
 
 The Clerk of flie Course is usually the Stakeholder at 
 Races, and he is bound to retain the Stake till some party 
 be clearly entitled to receive it ; and if he pays it to a 
 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 (;?). 
 
 But he has no rigJd to the Stakes till he gets the money 
 into his hands ; he is never more than a mere Stakeholder. 
 Indeed, if he could bring actions for unpaid Stakes, he 
 would be liable to have actions brought against him for 
 every Stake that was won, whether he had received it or 
 not; and his situation would not be a very enviable one(o). 
 
 In order to enable one of the parties to maintain an 
 action against a Stakeholder to recover the amount of 
 Stakes deposited with him to abide the determination of 
 the Stewards, the plaintiff must either have the decision 
 in his favour, or show that it was no longer practicable to 
 obtain it {jy). 
 
 The position of the Stakeholder towards the parties, 
 where the Race has not and cannot be run, is that of a 
 debtor to each party for the amount deposited by each. 
 It appears, therefore, that in that case a specific demand 
 of ■ the Stake fi'om the Stakeholder is unnecessary ; but 
 
 {»)) Kcppclx. Coxjitess Boxcagcr of 
 Albemarle^ before Vice -Chancellor 
 Knight Bruce, Feb. 18, 1850. 
 
 (/*) Burrough v. Skinner, 5 Burr. 
 2639 ; Marnjat v. Broderick, 2 M. 
 
 & W. 369. 
 
 (o) Per Patteson, J., Charlton v. 
 Hill, 5 C. & P. 147. 
 
 {}j) Brown v. Occrbury, 25 L. J., 
 Ex. 169. 
 
STAKEHOI.DERS. 393 
 
 where the Race might still bo nm and decided, each party 
 must make a specific demand of his Stake from the Stake- 
 holder before he can recover from him, because in this 
 ease it is necessary to inform the Stakeholder, that the 
 authority given to him to keep the money has been 
 revoked (q). 
 
 He cannot set off a claim of an unpaid Stake due from Cannot set off 
 a person on one Race against a Stake won by the same ^ uupai^l 
 person in another Race (r). 
 
 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 ^^-y ^^^^ ^ 
 Cheque as money (s). 
 
 When the eijtrance 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 i^^^i c^^. 
 Race, which, being a legal contract, it cannot be recovered tract, 
 by the party who has made the entry, unless there be a 
 mutual agreement for the rescission of the contract, which 
 is called being "off by consent." On this point an 
 opinion was expressed by Mr. Baron Parke, where an 
 action had been brought 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 retiu"ned, 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 varied without the 
 assent of all parties. But here there was no demand 
 made ; no rescission of the contract before the Race " (/). 
 
 And where before 8 & 9 Yict", c. 109, the sum of ten A Foot Race, 
 shillings was deposited with a Stakeholder to abide the 
 event of a Foot Race, Mr. Baron Parke said, " The trans- 
 action is valid and the contract binding ; and therefore one 
 of the parties cannot determine it by a simple countermand, 
 without the consent of all the other parties depositing " {u). 
 
 After the passing of 8 et 9 Vict. c. 109, where two 
 
 {q) Carr v. Martinson, 28 L. J., (0 Marryat Y.BrodericJc, 2 M. & 
 
 Q. B. 126. W. 369. See also Broicn v. Over- 
 
 {r) Charlton v. BUI, 5 C. & P. hur>i, 25 L. J., Ex. 169. 
 147. (") Emery v. Richards, 14 M. & 
 
 («) Wilkinson v. Godcfroy, 9 A. & W. 729. 
 E. 536. . - 
 
SM 
 
 RACING, STAKEHOLDERS AND STEWARDS. 
 
 J]atti/ V. Mar- 
 riott over- 
 ruled by 
 Dif/ffle V. 
 Biggs. 
 
 Judgment of 
 Lord Cairns, 
 L. C. 
 
 persons agreed to run a Foot Eace, and eacli of them 
 deposited 10/. with the third person, the whole 20/. 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 recover 
 back his deposit from the Stakeholder {x) . 
 
 This case appears to have been decided on the ground 
 that the game was not an unlawful one, and that there 
 was nothing in the case that was struck at by the Act of 
 Parliament ; but the true test appears to be whether the 
 deposit was in the nature of a wager or of a subscription 
 or contribution to a prize to be awarded to the winner of 
 any laAvful game, sport, pastime, or exercise. And tliis 
 has been so held by the Coiu't of Appeal in the recent case 
 of Diggle v. HigO'i {y), overruling Batty v. Harriott (s), on 
 very similar facts. The law on the subject being very 
 clearly laid down in the following judgment of Lord 
 Cairns, L. C. : — 
 
 " The first question which we must ask ourselves is, 
 was this contract a Wager? It seems to me beyond a 
 doubt that it was a Wager ; it was a Wager between two 
 men for a walking match. They agreed to walk at the 
 Higginshaw Grounds for 200/. a-side ; it is not the less a 
 Wager because the money was deposited with the de- 
 fendant as Stakeholder. When the Wager was decided, 
 the winner would be paid the 200/. deposited by the loser, 
 and receive back his own 200/. Now upon that, what is 
 the construction of sect. 18 of 8 & 9 Yict. c. 109 ? Is a 
 contract of this kind excepted by the proviso ? We start 
 with this, that the contract was clearly a Wager, and was 
 within the first part of the section. But the section says 
 all contracts and agreements, whether by parol or in writing, 
 by way of Graming or Wagering, shall be null and void ; 
 and then there is a proviso which follows upon an inter- 
 vening sentence in these words — 'And no suit shall be 
 brought or maintained in any court of law or equity for 
 recovering any simi of money or valuable thing alleged to 
 have been won upon any Wager, or which shall have been 
 deposited in the hands of any person to abide the event on 
 which any wager shall have been made.' Then comes the 
 proviso on which this question mainly rests — ' Provided 
 always, that this enactment shall not be deemed to apply 
 
 (.r) Batty Y. Marriott, 5 C. B. 818. 
 
 hj) L. E., 2 Ex. D. 422; 46 L. 
 J., Ex. 721 ; 37 L. T., N. S. 27; 
 25 W. K. 777. Reversing the de- 
 
 cision of Huddleston, B., 25 W. 
 R. 607. And see Trimble v. Mill, 
 L. R., 5 App. Cas. 342. 
 {•) 5 C. B. 818. 
 
STAKEHOLDERS. 395 
 
 to any subscription or contribution, or agreement to sub- 
 scribe or contribute, for or towards any plate, prize or sum 
 of money to be aAvarded to tbe winner or winners of any 
 lawful game, sport, pastime or exercise.' 
 
 " It is clear that there may be in scores of forms ' sub- 
 scriptions or contributions' towards a plate or prize "with- 
 out there being any AVager, and I cannot read this proviso, 
 which has a natural and intelligible meaning, in a different 
 way, and one which would have the effect of neutralizing 
 the enactment. The legislatiu-e, I think, never intended 
 to say that there should be no action brought to recover a 
 sum of money which shall have been deposited in the hands 
 of any person to abide the event on which any Wager shall 
 have been made, and yet that if the Wager is in the form 
 of a subscription or contribution the winner may recover it. 
 I read the proviso thus — ' Provided that so long as there is 
 a subscription which is not a Wager, the second part of the 
 section shall not apply to it.' There is no authority in 
 favour of the view of the defendant, except Batty v. Mar- 
 riott (a), and if that authority is to be followed, it cannot 
 be denied it is a very strong authority for the defendant. 
 What the Court had in their minds in that case was the 
 question whether the Grame was a lawful or an unlawful 
 Game, and having come to the conclusion that it was a 
 lawful Game, they were of opinion that there was nothing 
 in the case which was struck at by the Act of Parliament, 
 and that the Act was only intended to strike at unlawful 
 Games. That view seems to me to be erroneous, and I 
 think that the Court overlooked the first part of the section, 
 which applies to all contracts, lawful or unlawful, by way 
 of Gaming or Wagering. When Batson v. Newman (b) 
 came before this Court, although there was a certain de- 
 gree of difference between that case and Batty v. Mar- 
 riott (a), yet it is obvious that Batty v. Marriott did not 
 meet with approval. I cannot follow that case. I there- 
 fore think that, although there was a deposit of money, the 
 contract in this case was a Wager, and that all the con- 
 sequences which are imposed by sect. 18 on contracts by 
 way of Wagering follow. 
 
 " Then it is said that this is an action by a party to the 
 contract, and that he has revoked the authority given to 
 the defendant to pay over the money, on the ground that 
 the contract is void, and that section 18 has taken away his 
 
 (a) 5 C. B. 818. {b) L. R., 1 C. P. D. 573. 
 
396 
 
 RACING, STAKEHOLDERS AND STEWARDS. 
 
 Recovery of 
 money paid 
 on an illegal 
 Contract. 
 
 What the 
 party shoiild 
 do. 
 
 Demand be- 
 fore the 
 money is 
 paid over. 
 
 riglit to maintain an action under that part of tlie section 
 which says no suit shall be brought for recovering money 
 which shall have been deposited in the hands of any person 
 to abide the event on which any wager shall have been 
 made. On that I must observe that in Hampden v. 
 Wahh {e) the Queen's Bench Division appeared to have 
 been of opinion that an action under similar circumstances 
 could be maintained; and in Batty v. 3Iarriott (d), the 
 objection was not taken. Be that as it may, I am of 
 opinion that that objection cannot be maintained. The 
 section amounts to this : All contracts by way of gaming 
 and wagering are null and void ; and then, dealing with 
 those contracts, it says that no action shall be brought 
 with respect to them ; that is to say, all gaming contracts 
 are void, and the winner of the game or wager shall not 
 maintain a suit against his antagonist or the stakeholder. 
 This construction makes one member of the section in 
 unison with the other. What legal right there may be to 
 recover back money paid under a contract that is void, the 
 statute leaves it untouched. The decision of the learned 
 Judge was wrong, and I think that judgment ought to be 
 entered for the plaintiff." 
 
 If two parties enter into an illegal or void contract, and 
 money is paid upon it by one to the other, or to a Stake- 
 holder, it may be recovered back before the execution of 
 the contract, but not afterwards (e) : unless, if paid to a 
 Stakeholder, the Stakeholder has paid it over contrary to 
 notice given to him by one of the parties not to do so (./). 
 
 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 atfair. And he should demand 
 back his deposit before the illegal or void transaction has 
 taken place {g), and the money has reached the other 
 party's hands (/), because if he does not, he permits the 
 Stakeholder to dispose of it (//). 
 
 It was held in the case of Hastelow v. Jaclsoii (/) that 
 where the event in such case has been decided, but before 
 the money has been paid over, and one party expresses his 
 
 (c) L. R., 1 Q. B. D. 189. 
 
 {d) 5 C. B. 818. 
 
 (c) Hastcloiv V. Jackson, 8 B. & C. 
 226 ; and see Mearintj v. IlcUhtgs, 
 14 M. & W. 712 ; Varnetj v. Hick- 
 man, 5 C. B. 281. See also Bone v. 
 Ekless, 5 H. & N. 925. 
 
 (/) Hastelow v. Jackson, 8 B. & 
 C. 226 ; Bone v. Ekless, 5 H. & N. 
 925. 
 
 (9) Martin Y.Heivson, 10 Ex. 737. 
 
 \h) See Gatty v. Field, 9 Q. B. 
 440. 
 
STAKEHOLDERS. 397 
 
 dissent from the payment, lie may recover it from the 
 Stakeholder. For although the event has happened, 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 {i). Some doubt in- 
 deed has been thrown upon this case, Mr. Baron Alderson, 
 in Mearing v. Hellings [k), saying of it, "I accede to its 
 authority, though I think it a very strong decision. It 
 does not convince me. It overcomes me." And Pollock, 
 C. B., in the same case said, " With respect to the case of 
 Ilastclow V. Jackson, I forbear saying anything about it 
 at present ; it is binding upon us until reviewed by a Court 
 of Error. If the same question arose before me, I should 
 certainly advise a bill of exceptions." And, in the case of 
 IPEhcaine v. Mercer (/), Hastelow v. Jaekson was held by 
 the Irish Court of Common Pleas to be irreconcilable with 
 the law as established by 8 & 9 Yict. c. 109, s. 18. But 
 it has never been expressly overruled, and indeed with 
 these exceptions it has been treated uniformly, both from 
 the Bench and by text writers, as an authority (^m) . 
 
 If it be pleaded to an action, for 3Io)iei/ had and received, Bring-ing an 
 that the money was staked on an illegal Game, the plaintiff ^^^2^^ ^°* 
 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 demand (//). 
 
 But although the contract be illegal or void, yet if the Wliere the 
 event happens, and the money is paid over by the Stake- ^^JfJ ^^ 
 
 K ^ t • -I • puicl over 
 
 holder without dispute, there is a complete execution of without dis- 
 the contract, and the money cannot be reclaimed (o). pute. 
 
 If a person pays his entrance money to the Clerk of the Where a 
 
 (j) Hastelow Y. Jackson, 8 B. & C. {m) Per Bramwell, B., Bone v. 
 
 227. And see Hampden v. TFalsh, Ekless, 5 H. & N. 928. Per Cock- 
 
 L. R., 1 Q. B. D. 189 ; 45 L. J., b\im, C. J., Hampden v. Walsh, L. 
 
 Q. B. 238 ; 33 L. T., N. S. 852 ; R., 1 Q. B. D. 193 ; 45 L. J., Q. 
 
 24 W. R. 607 ; Biggie v. Higgs, L. B. 238 ; 33 L. T., N. S. 852 ; 24 
 
 R., 2 Ex. D. 422 ; 46 L. J., Ex. W. R. 607 ; Higgle y. Higgs, L. R., 
 
 721 ; 37 L. T., N. S. 27 ; 25 W. 2 Ex. D. 422 ; 46 L. J., Ex. 721 ; 
 
 R. 777— C. A. 37 L. T., N. S. 27 ; 25 W. R. 777 
 
 (k) Mearing v. Hellings, 14 M. & — C. A. See also Selw. N. P. r2th 
 
 W. 712. ed. 97, and 2 Sm. L. C. 7th ed. 
 
 (;) 3PElwaine v. Mercer, 9 Ir. 530. 
 
 Com. Law Reps. 13. The judg- («) GattyY. Field,9) Q.-'B. iZl. 
 
 ment in this case appears to he (o) Hastelow v. Jackson, 8 B. & 
 
 founded upon a misconception of the C. 226; and see Moore v. Cooper, 
 
 principle which rules the English before Mr. R. Gumey, Sheriffs' 
 
 decisions, and of the facts in the Court, Dec. 10, 1853. And per 
 
 case of Hastelow v. Jackson. Erie, J., Q. B., N. P., Guikllaall, 
 
 in Pike x.Alcock, Jan. 26, 1858. 
 
398 
 
 RACING, STAKEHOLDERS AND STEWARDS. 
 
 Eorse is dis- 
 qualified. 
 
 Where Owner 
 knows the dis- 
 qualification. 
 
 Proper party 
 to receive the 
 Stakes. 
 
 Under what 
 circumstances 
 
 Course bond fide and without any attempt to impose upon 
 the other subscribers, and then finds his Horse disqualified, 
 he may recover his Stake {p). 
 
 But the owner cannot recover his own Stake after the 
 Eace, if before the Eace he hncic that his Horse was dis- 
 quahfied. Thus where the conditions of a Race were that 
 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 
 Fkifihy Moll she had started against thorough-bred Horses, 
 run for Plates, and had won many Races. Upon this !li3 
 plaintiff brought an action to recover back his own entrance 
 money. However, Mr. Baron Yaughan 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. H the plaintiff knew 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 {-p). 
 
 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 Plaintiff 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 
 3Io)teij 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 negotiable like a Pro- 
 missory 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 {q). But now, by 
 sect. 25, sub-sect. 6 of the Judicature Act, 1873 (36 & 37 
 Yict. c. 66), the owner of any debt or other chose in action 
 may assign the same to a third person absolutely, and place 
 such person in the position he himself was in at the time 
 of the transfer, and with the same legal and equitable 
 rights. 
 
 The actual Winner may maintain an action against a 
 Stakeholder for all moneys actually in his hands, and 
 
 [p) Weller v. Beakins, 2 C. & P. 
 618 ; Goldsmith v. Martin, 4 M. & 
 G. 5. 
 
 {<]) Jones V. Carter, 15 L. J., Q. 
 B. 96. 
 
.STAKEHOLDERS. 399 
 
 against the party who has agreed to subscribe or con- Winner may 
 
 tribute to the Stakes, where it has not been paid up, and mamtam an 
 
 this however great the amount may be ; provided that the 
 
 game is lawful and that the transaction is not in the 
 
 nature of a Wager. But it is a good answer to an action 
 
 for money had and received, that the money w^as deposited 
 
 in the hands of the defendant to abide the event on which 
 
 a Wager was made, and was claimed by the plaintiff as 
 
 the Winner of the Wager, and that he did not repudiate 
 
 the Wager, or demand back his money before the event 
 
 thereof, and had never repudiated the Wager, or claimed 
 
 the money on any ground than as Winner of the Wager, 
 
 and that no part of the money was a subscription or 
 
 contribution, or due on any agreement to subscribe or 
 
 contribute towards any plate, prize or sum of money to be 
 
 awarded to the Winner or Winners of any lawful Game, 
 
 Sport, Pastime, or Exercise (r). 
 
 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 Yict. c. 3 (s).^ 
 
 Where five shillings a head had been staked by the -^ Cricket 
 eleven players on each side in a Cricket Match, an action ^ ° ' 
 was tried, and the Winners recovered the Stake from the 
 Stakeholder {t). 
 
 But Lord Tenterden refused to try an action to recover A Wrestling 
 back a deposit on a Wrestling Match {u) . Match. 
 
 So also Abbott, C. J., refused to try an action brought A Dog Fight, 
 against the Stakeholder on a Dog Fig Jit, and said, " The 
 time of the Court is not to be wasted in trying which Dog 
 or which Man won a battle" (.r). 
 
 Where fraud has been practised the loser of a Pace may Loser may- 
 recover his Stake from the Stakeholder, and produce the g^t^kTwhere 
 agreement without a Stamp. In the following case the there has 
 plaintiff entered into a written agreement with a third been Fraud, 
 party to race their Horses upon certain terms, and he de- 
 
 (r) Savage v. Madder, 36 L. J., [t) Walpole v. Saimders, 7 D. & 
 
 Ex. 78 ; 16 L. T., N. S. 600 ; 16 R. 130. 
 
 W. R. 910; and see Diffgle v. {u) Kennedij v. Gad, 3 C. & P. 
 
 Biggs, L. R, 2 Ex. D. 422 ; 46 L. 376. 
 
 J., Ex. 721 ; 37 L. T., N. S. 27. [x) Egcrton v. Furzeman, 1 C. & 
 
 (s) See Gaming, post, Chap. 4. P. 613. 
 
400 
 
 RACING, STAKEHOLDERS AND STEWARDS. 
 
 How he may 
 waive liis 
 Claim. 
 
 Where a 
 Stakeholder 
 may recover 
 from the 
 Wioner. 
 
 Money in the 
 hand of 
 Stakeholder 
 does not pass 
 as ' ' his 
 moneys" 
 nndcr the 
 Depositor's 
 will. 
 
 posited 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 recover the 
 Stakes, and it was held by the Court of Exchequer, that 
 the written instrument, although unstamped, was properly 
 admitted in evidence in proof of the fraud {//). 
 
 But if a person once affirms the contract by claiming 
 the Stake, he cannot afterwards turn round and claim a 
 return of his money on the ground of the agreement being 
 void by reason of fraud (;:) . 
 
 Where, however, the Stakes have been paid over to a 
 fraudulent winner, they may even then be recovered from 
 him in an action by the Stakeholder. Thus a Bitch called 
 Emily Deans was entered for the " Great Open Puppy 
 Stakes" in Northumberland. The Stakes were run for 
 and a Bitch described as Emily Deans Avon 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 by the Secretary, who was also Stake- 
 holder, to recover the Stakes from the defendant. It was 
 submitted by the counsel for the defendant that the plain- 
 tiff 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 Emily Deans being 
 the animal entered for the match, the defendant had no 
 more right to substitute 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 was refused by the Court (a). 
 
 A sum of money deposited with Stakeholders, to abide 
 the result of a Wager, which sum was repaid by them on 
 the death of the party depositing to the Administratrix, does 
 not pass under the words " I give all 7nt/ moneys, house- 
 hold furniture, &c., &c.," because this sum of money being 
 in the hands of Stakeholders, could not be said, after being 
 so deposited, to have been in the possession or power of the 
 Testator at any subsequent moment of his existence {b). 
 
 {y) Holmes v. Sixsmiih, 7 Ex. 
 802. 
 
 {z) See per Pollock, C. B., Holmes 
 V. Sixsmiih, 7 Ex. 808. 
 
 ((?) Emerson v. Dickson, before 
 Mr. Baron Martin, Durham Spr. 
 Ass. March 4, 1853. 
 
 (i) Manning \.Furcell,2i L.T.317. 
 
STEWARDS. 4 [ 
 
 STEWARDS. 
 
 The Stewards are generally the proper parties to decide Their duties, 
 all disj)utes in a Race, and all matters which, according to 
 the conditions of the Race, are to he referred to them. In 
 order to their award being a satisfactory one, they should 
 hear both sides and all join in making it ; or if one make 
 an award for all, the disputing parties, and probably also 
 the Clerk of the Course or Stakeholder, should exj)ressly 
 submit themselves to his authority ; though it would ap- 
 pear that without a strict adherence to this procedure their 
 award might be a legal one (r). The judgment of the 
 Stewards should, if possible, be obtained ; and recourse 
 should not be had to legal proceedings, unless it can be 
 shown that it is no longer practicable to get judgment from 
 the Stewards (d). But if the Stewards are unable or in- 
 competent 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 
 following cases. 
 
 There was a Sweepstakes at Newport Pagnell Races for Disputes to 
 Horses not tJtorough-hred. Before the Race was run, the ^^ settled by 
 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 present, and on A.' being referred to, 
 he submitted the question to the Jockey Club, who refused 
 to entertain it, on the ground that it was a mere question 
 of fact, and referred it back to the decision of the Stewards. 
 A. afterwards wrote a letter to the plaintiff, saying he con- 
 sidered him entitled to the Stakes ; but no proof was given 
 that the first Horse was thorough-hred. 
 
 It was decided that the letter was no authority, but that Award should 
 there ought to have been an express award by both ^^ °^ade by 
 Stewards; or to make an award by A. binding, there ^ ' 
 ought to be clear proof that both the disputing parties, 
 
 (c) See post, p. 403. [d) Brown v. Ofcrlunj, 25 L. J., 
 
 Ex. 169. 
 
 O. D D 
 
402 
 
 RACING, STAKEH0],1)ERS AND STEWARDS. 
 
 Custody of 
 Stakes in the 
 meantime. 
 
 Legal position 
 of Stewards. 
 
 Decision not 
 necessarily 
 invalidated 
 by one of 
 them being 
 interested. 
 
 Decision of 
 two out of 
 three Stew- 
 ards held 
 binding. 
 
 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 hands 
 until it be determined by due coiu-se of law who is winner ; 
 that is, by the Stewards, if they are competent to deter- 
 mine it, if not, by a Jury. The plaintiff may now submit 
 the case to the Stewards if they are competent to entertain 
 it ; if not, he may bring an action and show himself the 
 winner, by showing that Shaw's Horse was thorough-hrcd 
 and that his own was not" {e). 
 
 The decision of the Stewards is not invalidated by the 
 fact of one of them being interested in the decision, inas- 
 much as it does not appear to be in the contemplation of 
 the parties, that they shoidd be excluded on that ground, 
 nor are they arbitrators in the strict legal sense (/"), the 
 intention of the parties being to constitute a tribunal for 
 the termination of any dispute without litigation of any 
 kind either by arbitration or action, and therefore the 
 principle of law as to interested judges is not applicable 
 to them. 
 
 Thus in the case of Ellis v. Hopper (rj), where a Steeple- 
 chase was run according to certain rules and conditions, 
 one of which was that all disputes should be settled by the 
 Stewards, whose decision was to be final, it was held that 
 the fact that one of the Stewards joined in the award, 
 where the winning or not of his own Horse was in 
 question, did not render the award void. And Bramwell, 
 B., said in his judgment, "If in the betting code no such 
 implied condition exist, that the appointed arbitrators or 
 judges shall cease to be empowered to act, if one of them 
 becomes interested in the event ; the only remaining ques- 
 tion is, is there a general proposition of law, that whenever 
 a matter is referred to one or several persons, his or their 
 powers shall cease, if one of them becomes interested in 
 the event ? I know of no such rule. When parties agree 
 to refer a matter, they may, if they please, put in a con- 
 dition to that effect ; but if they clo not, why should the 
 law make such a condition for them." 
 
 It appears to be at present undecided whether, on one of 
 the Stewards becoming disqualified, the tribunal would still 
 be in its integrity (A). But it has been held that a de- 
 
 {e) Marnjat v. JBroderick, 2 M. 
 & W. 369. 
 
 (/) Ellis V. Hopper, 4 Jur., 
 N. S. 1025 ; S. C. 28 L. .J., Ex. 1 ; 
 I'lUT V. WiHlrrhxiliam, 2S L. .T., 
 
 Q. B. 123. 
 
 {g) Ellis T. Hopper, 4 Jur., N. S. 
 1025 ; S. C. 28 L. J., Ex. 1. 
 
 {/>) Ibid. 
 
STEWARDS. 403 
 
 cisiou made by two of the Stewards, three having been 
 appointed, was valid and binding, although it was made in 
 the absence of the third Steward, and although he dissented 
 from that decision {i). 
 
 In the case of Parr v. Wintennrjhani (/), Lord Campbell, Stewards 
 C, J., thus defined the position of Stewards : — " If Stewards '^^^^^ *™™ 
 were in the position of arbitrators, they would have to meet trators!^^" 
 together, to deliberate together, and to give a joint judg- 
 ment. But they are judges of a peculiar character, and to 
 avoid the technicality of a legal proceeding, it is intended 
 that each should give a final judgment, and not that they 
 should give a joint judgment. Accordingly it is not 
 necessary that they should meet together and make a joint 
 decision. And it may be stated as a general principle, 
 that if that decision is a fair and honest one, it will be 
 upheld by the Courts of Law" (?'). 
 
 Although the Judge of a Horse-race has power to decide Judge's 
 finally who is entitled to the Stakes as Winner, such power po^^rs do 
 does not accrue to him, until the Race has been run ; and -^^heu Race 
 the Race has not been run, if, what has been made a Con- is invalid, 
 dition Precedent to the running, e. g. that a certain person 
 should be the Starter, has not been performed (A-). 
 
 Whore the printed conditions of a Steeple Chase in 1843 Steward's de- 
 contained the following (amongst other) stipulations: "A^o cisionmain- 
 Groom or Professional Jockey will he alloiced to ride," and Oourt o/ex- 
 " all disputes and other matters shall be decided by the chequer. 
 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 con- 
 sidered Walker as a Professional Jockei/, 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 plaintiff'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. Notwithstanding this intima- 
 tion. 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 
 
 (i) Parr v. Whiterlwjham, 5 [k) Carr v. Martinson, 28 L. J., 
 
 Jur., N. S. 787; S. C. 28 L. J., Q. B. 126. 
 Q. B. 123. 
 
 D D 2 
 
404 
 
 KACIXG, STAKEHOLDERS AND STEWARDS. 
 
 Neiccomen v. 
 Lynch. 
 
 Provisional 
 decision. 
 
 plaintiff then brought an action against the defendant, who 
 was Secretary to the Eace Committee, and holder of the 
 Stakes. A verdict was found for the plaintiff, reserving 
 leave to the defendant to enter a nonsuit. The Court of 
 Exchequer made the rule absolute to enter a nonsuit, and 
 Chief Baron Pollock said, " The question is, whether the 
 Steward has decided this point, and whether his decision is 
 good in point of law. I am of opinion that he has come 
 to a decision, and that that decision is sufficient." 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 Steward, that witnesses should 
 be examined upon oath, and the same strictness required as 
 in arbitrations under the sanction of a Court of Justice" (/). 
 
 At a Steeple Chase, weight for age — run under certain 
 rules, one of which made the decision of the Stewards 
 final, and another required that upon entering a Horse his 
 age should be stated — the defendant's Horse was entered 
 as "aged;" he came in first, but was objected to as being 
 a " six-year-old," and not an " aged" Horse ; the Stewards 
 decided that, though, as a matter of fact, the Horse was a 
 " six-year-old," and not " aged," the misstatement in the 
 entry was immaterial, inasmuch as the weight imposed on 
 a "six-year-old" and on an "aged" Horse was the same. 
 The Irish Court of Exchequer Chamber held, that the 
 Stewards had not exceeded their jurisdiction, that there 
 being no question as to the bona fides of their judgment, 
 their decision on the construction of the rules, as well as on 
 the matters of fact, was final and conclusive between the 
 parties, and accordingly that the defendant's Horse was 
 entitled to the Stakes {ni). 
 
 Where by the conditions of a Race the decision of the 
 Stewards in all cases of dispute is to be final, they need not 
 decide on the whole case at once, but may come to a pro- 
 visional decision on the facts before them, and subsequently 
 reopen the question and decide on the whole case, and such 
 ultimate decision will bn final. Thus, in SmitJt, v. Little- 
 dale [n), the plaintiff's Horse ran in a Eace subject to the 
 following conditions, viz.: — that he had been fairly hunted 
 with certain hounds during the season, that he had been 
 
 (/) Bcnhow V. Jones, 14 M. & W. 
 193; S. C. 14 L. J., Ex. 257. 
 
 (m) Neivcomen v. Lynch, 10 Ir. R., 
 C. L. 248— Ex. Ch. 'Eerersing the 
 
 decision of the Queen's Bench, 9 
 Ir. R., C. L. 1. 
 
 («) 15 W. R. 69—0. P. 
 
STEWARDS. 405 
 
 a certain time in the possession of his owner; and the 
 Stewards w' ere to disqualify any Horse that they did not 
 consider to have been hunted in a genuine bond fide 
 manner, and their decision in all cases of dispute to be 
 final. The Horse came in first, and the owner claimed the 
 ►Stakes. On an objection that the Horse had not been 
 fairly hunted, the Stewards at once went into the question 
 in the weighing-room, and held that he had, leaving the 
 question whether the plaintiff was owner within the condi- 
 tions for future decision. They subsequently decided that 
 he was such owner, but at the same time disqualified the 
 Horse as not being fairly hunted because he had not been 
 ridden by his owner. In an action for the Stakes, the 
 Jury found that the decision in the weighing-room was in 
 favour of the Horse subject to the question of ownership, 
 and that the Stewards afterwards decided that question in 
 favour of the plaintiff, and at the same time disqualified 
 the Horse. Cockburn, C. J., told the Jury that in his 
 opinion the Stewards could not make a conditional decision, 
 and that the decision in the weighing-room was a provi- 
 sional decision only, and directed the verdict to be entered 
 for the defendant, leaving it to the plaintiff to move to 
 enter it for him, if on the findings of the J ury on the facts 
 of the case the Court should think him entitled to it. The 
 plaintiff's counsel moved accordingly, and contended that 
 the decision of the Stewards in the weighing-room was con- 
 clusive, and that as no further evidence was brought before 
 them, they could not reopen it. Erie, C. J., said, "I am 
 of opinion that there should be no rule : the action is 
 against a Stakeholder; the Ivace was run, and the Stewards 
 decided that the Stakes should not be given to the plaintiff, 
 but to another person. The Race was subject to this con- 
 dition : ' The Stewards will strictly carry out the object 
 of this meeting by disqualifying any Horse they do not 
 consider to have been hunted in a genuine and bond fide 
 manner, and their decision in all cases of dispute will be 
 final.' That makes them absolute judges of fact and law, 
 and they have ultimately decided against the plaintiff's 
 Horse. The decision in the weighing-room was an inchoate 
 decision only. A Stakeholder is not to be made liable to 
 an action where there is a stipulation in such terms as 
 these." Willes and Keating, JJ., concurred, and the rule 
 was therefore discharged. 
 
 The Stewards of a Race are the proper parties to ap- Appointment 
 point the Judge, who may decide which is the winning °^ ^ Judge. 
 
406 
 
 RACiiS'G, ^STAKEHOLDERS AND STEAVARDS. 
 
 Negligence in 
 not appoint- 
 ing one. 
 
 Decision of 
 the Umpire 
 or Committee. 
 
 "Wlien Juris- 
 diction has 
 not attached. 
 
 Horse ; and if tliey are paid for their trouble, or enter upon 
 tlieir duties, they are liable to an action for not doing so (o) . 
 
 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 [p). 
 
 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 Evaxs. 
 '' Thomas Holyoake, Esq., Umpire. 
 " Frederick Pratt bets Thomas Evans 100/. to 25/. p.p. 
 \_phi>/ or pay'], Mr. Ryley's brown Mare [late his pro- 
 perty] beats Thomas Evans's Mare, Matilda, four miles 
 across a coimtry, thirteen stone each. To come off 1st 
 March, 1811. The Umpire.' s decision to he final. 
 
 (Signed) " Thomas Evans, 
 
 "Frederick Pratt." 
 
 The Match came off on the day appointed. Mr. Ryley's 
 brown Mare came in first ; but Mr. Holyoake, the Umpire, 
 decided that the other Mare was the winner, in con- 
 sequence of the former having passed through a gateway 
 instead of goiug over the hedge, which the rules of Steeple- 
 chasing seem to require. It was held that it was not com- 
 petent to either party to dispute the decision of the Umpire, 
 as they had constituted him Judge of the law and the 
 fact(^). 
 
 But it may be that the jurisdiction of the Referee has 
 not properly attached, in which case his decision will not 
 be final, and the party against whom his award has been 
 made will be entitled to recover in an action against the 
 Referee for the Stakes (r). In Sadler y. Smith, the plaintifi 
 and Kelley, watermen on the Thames, agreed to row a 
 right-away Scidler's Race, according to the recognized 
 rules of boat racing, the decision of the Referee to be 
 final. The stakes were deposited A^dth the defendant. In 
 
 (o) See the principle stated in 
 Smith's JVIerc. Law, 112, and cited 
 
 by Jervis, C. J., Balfey. West, 22 
 L. J., C. P. 176. 
 
 {p) Balfe V. West, 22 L. J., C. 
 
 P. 175 ; S. C. 1 C. L. Ecp., C. P. 
 225. 
 
 (<l) Evans v. Trait, 4 Scott, N. Pt. 
 378. 
 
 (r) Sadler v. Smith, 10 B. & S. 
 17; L. R., 5 Q. B. 40; 39 L. J., 
 Q. B. 17; 21 L. T.,N. S. 502; 18 
 W. R. 148— Ex. Ch. 
 
STEWARDS. 407 
 
 Sculling Eaces between professional watermen it is tlie 
 custom for the competitors to start themselves, but if either 
 should make default in starting, and any question should 
 in consequence arise, it would be in the power of the 
 Referee to determine that question. The plaintiff and 
 Kelley attempted, unsuccessfully, to start, and Kelley rowed 
 to the Eeferee, who ordered him to tell the plaintiff that if 
 he would not start Kelley must start without him. Kelley 
 rowed over the course without the plaintiff, and the Referee 
 awarded the Race and Stakes to him, without hearing any 
 evidence or taking any steps to ascertain if his order had 
 been communicated to the plaintiff, and without having 
 any means of acquiring the knowledge of the fact. The 
 plaintiff brought an action to recover his deposit. The 
 Jmy found that the order of the Referee was not com- 
 municated to him, and that he had not a fair opportunity 
 of starting. It was held by the Exchequer Chamber, 
 affirming the judgment of the Court of Queen's Bench, 
 that the jurisdiction of the Referee never attached, and 
 therefore his decision was not final, and the plaintiff was 
 entitled to recover. And Kelly, C. B., said, " In giving 
 judgment in the present case, the Court has no desire to 
 cast the slightest doubt upon the principle that whenever 
 a Referee, Arbitrator or Umpire has given a decision upon 
 a question within his jurisdiction, a Court of Law has no 
 power to interfere. And if the Referee in the case now 
 before us, having the materials before him, had pronounced 
 a decision, it would not have been within the province of 
 any Judge or any Jury to overrule it. But on examining 
 the facts of the case it will appear that the Referee had no 
 jurisdiction, his jurisdiction was to be founded upon the 
 performance of a condition which he himself prescribed, 
 and that condition never was performed. Kelley was to 
 tell the plaintiff that if he did not start, Kelley was to 
 start without him. The Referee thereby imposed a specific 
 condition, upon the fulfilment of which, but not otherwise, 
 the start might take place. If the plaintiff, on receiving 
 the message from the Referee, had refused or forborne to 
 start, and Kelley had started, the condition imposed by the 
 Referee would have been so far complied with as to give 
 him jm-isdiction to determine that a start had taken place. 
 But we must assume that the message from the Referee 
 was never communicated by Kelley to the plaintiff, who 
 therefore had no means of knowing that he was to start at 
 the time at which Kelley started. Therefore the start, 
 
408 RACING, STAKEHOLDERS AND STEWARDS. 
 
 which according to the terms imposed by the Referee was 
 to he a condition precedent to the Race, never took place." 
 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 Jocl-eijs or paid lliders^ 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 plaintiif's Horse, which came first to the 
 mnning chair, had been in the habit of riding at Races, 
 sometimes receiving his expenses, but never having been paid 
 for his services, and that the plaintiff's right to the Stakes 
 was disputed on the ground of an alleged cross. Imme- 
 diately after the Race, the Jockey was required to attend 
 before the Committee, but omitted to do so. The Com- 
 mittee therefore entered upon the inquiry, and ultimately 
 came to the resolution, that unless the plaintiff would pro- 
 duce 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 evidence was not satis- 
 factory ; and, in his opinion, the Jockey's disqualification 
 had not been established. The Jmy returned a verdict 
 for the plaintiff, and the Court of Common Pleas dis- 
 charged a rule for a new trial («). 
 
 Terms of a All the parties whose Horses are entered must of course 
 
 ^^^' adhere to the terms of the Race, such as the weights, pay- 
 
 ment of entrance money, &c., because no single condition 
 can be waived without the unanimous consent of the Sub- 
 scribers (/). 
 
 Rules of a According to the Rules by which a Regatta was regu- 
 
 ega a. lated, and which had been signed by all the parties taking 
 
 [s] Walmslcy v. Mattheus, 3 (0 WcUcr v. Deakins, 2 C. & P. 
 
 Scott, N. E. 584. 618 ; and see Lacey v. Umbers, 2 
 
 C. M. &R. 116. 
 
STEWARDS. 409 
 
 part in tlie Eace, tlie Prize, Avhieli was a Boat, was not to 
 be delivered np, 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 conversion on the part of the defen- 
 dant was very strong, the Jury found a verdict for the 
 plaintiff («). 
 
 Neither the Stewards, Clerk of the Course, nor any stewards, &c. 
 other persons, can waive or vary the published conditions cannot waive 
 of any Race without the consent of all the Subscribers. of^aKaceV°^ 
 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. Ilorses 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 wit- 
 ness 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 Yaughan 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 par- 
 
 (m) Chccscman v. Hart, before Lord Denman, C. J., Guildhall, Dec. 23, 
 1847. 
 
410 
 
 KACING, STAKEHOLDEKS AND STEWARDS. 
 
 Arbitration 
 of the Jockey 
 Club. 
 
 ticular condition. I take it that there was a printed pro- 
 posal to run Horses on certain terms ; what the Clerk said 
 after this was published cannot have the effect of waiving 
 any of those terms without all the other Subscribers are 
 proved to have consented to it" (.r). 
 Rules of the On those Courses which are governed by the Rules of 
 Jockey Club, ^j^^ Jockey Club (//), the Stakeholders, Stewards, and all 
 persons concerned in the llaces, 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 
 them, but will send it back for the decision of the . 
 Stewards (z) ; and the Courts will receive the Rules of 
 the Jockey Club as evidence with respect to the laws of 
 Racing (a). 
 
 A submission to the Arbitration of the Jockey Club 
 of a disputed account, amounts to an agreement which 
 cannot be impeached under the Acts against Graming, 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 arbitration of the Jockey Club in 1837, the Steward 
 decided that one debt should be set off against the other, 
 and the secmity 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 transaction in the Books of the Jockey Club, and also 
 the testimony of Mr. Grreville, the Steward ib). 
 Sporting The Courts will not take judicial notice of sporting 
 
 phraseology. pJirascolofjij, but tliey will admit evidence to explain it. 
 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 (r). And in another case 
 
 {x) WeUcr v. JJealclns, 2 C. & P. (/) GreviUe v. Chapman, 5 Q. B. 
 
 618. 745 ; and see the Riiles of Racing-, 
 
 (y) For the Rules of the Jockey Appendix. 
 
 Club, see Racing Calendar for [b) Uawl-er \. TTood, I W. R. 
 
 1882. 31G (M. R.). 
 
 (?) Marryat v. Broderick, 2 M. & (r) Evans v. Pratt, 4 Scott, N. R. 
 
 W. 369. 378. 
 
STEWARDS. 411 
 
 evidence was admitted to sliow tliat tlie letters " P. P." 
 signified that the parties were bound either to run the 
 match or forfeit the Stakes {d). 
 
 So, also, where the Eace 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 
 them, those of the highest price carrying the greatest 
 weight (e). 
 
 Where by the terms of a Race the riders were to be A professional 
 persons who had never ridden as Regular JocJiC//s or Paid Jockey. 
 Riders, it was held by Chief Justice Tindal, in the Court of 
 Common Pleas, that a Reejular Joclicy or Raid 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, was clearly not disqualified (/). 
 
 Where by the terms of a Race the Horse must have been Horse regu- 
 recjularhj hunted with some particular Hounds, it is not larly hunted 
 necessary to qualify a Horse to run that he should have ^^ °^° ^' 
 been hunted every day the Hounds went out. It is sufii- 
 cient to show that the Horse has been hunted frequently, 
 but one day's hunting is decidedly not enough ( g). 
 
 Where a Match is made for a particular Meeting which Match for a 
 depends upon weather or other circumstances, of course the ^^^\'^^]^^ 
 Match must be run when such Meeting actually takes °' 
 
 place. Thus where an agreement in writing was made 
 between the plaintiff and the defendant to run a Match 
 with Greyhounds " on the Wednesday during the New- 
 market Meeting, 1841, P. P." It appeared that the 
 Newmarket Meetings were Meetings of a Coursing 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 Tuesday in that 
 month, weather permitting ; and if at the Meeting the 
 ground proved unfit for Coursing, their practice was to 
 
 {d) Daintree v. Hutchinson, 10 ( /") Wahnesley v. Matthews, 3 
 
 M. & W. 89. Scott, N. R. 584. 
 
 {e) See Hadhnd v. Trice, Ap- (//) WcUer v. Lcakins, 2 C. & P. 
 
 pendix. 618. 
 
412 RACIKG, STAKEHOLDERS AND STEWARDS. 
 
 adjourn to a given day, or the first open day. At the 
 time when the contract in question %yas made, the day 
 appointed for the February Meeting was Tuesday the 
 2nd of February, 18-11. On Wednesday the 3rd, the 
 plaintiff and defendant were there, but frost prevented the 
 Meeting from being then held, and it was adjoiu'ned to 
 Tuesday the 9th, veathcr permitting. The frost, however, 
 continued beyond that day, and the Meeting was ultimately 
 held on Tuesday the 16th. On Wednesday the 17th the 
 plaintiff came with his Dog ready to run the Match, but 
 defendant did not appear. 
 
 It was held, first, that the construction of the contract 
 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 con- 
 tract by being ready to run on Wednesday the 17th; 
 secondly, that the plaintiff was not bound to produce the 
 printed llules, 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 joarties 
 intended by the letters "P. P." subjoined to the agree- 
 ment {/i). 
 Ordering off ^]^q Steward of a Race-course can order any person 
 Stand^^^ off the Gfrand Stand or Inclosure, though he has paid for 
 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 giving him Notice to quit the Stand or Inclosure 
 to which the Ticket had giving him admittance. But the 
 person who had sold it to him 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 would 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 184'i, Lord Eglinton being Steward of Doncaster 
 Races, Tickets were sold in Doncaster at one guinea each, 
 which were understood to entitle the holders to admission 
 into the Gfrand Stand and its Inclosure, and to remain 
 there during the Races. They were issued with Lord 
 
 {h) Baintrec v. Hntchinson, 10 M. & W. 87, 89. 
 
STEWARDS. 413 
 
 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 Inclo- 
 sure 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 Notice that 
 if he did not go away force would be used to turn him out. 
 The plaintiff had in no respect misconducted 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 
 unnecessary 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 as- 
 signing 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 defendant, 
 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(/). 
 
 In ordering goods or work for, the purpose of Races, the Ordering 
 Stewards should expressly inform the parties who it is that goods, 
 intends to be answerable for the payment, otherwise they 
 will be personally liable. In the case of Storr and another 
 v. Scott, Bart. (A-), it appeared that the defendant, 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. 
 
 (j) Wood V. Lcadbitter, 13 M. & {k) Storr and another v. Scott, 
 
 W. 838. ^ff/Y., 6C. &P. 241. 
 
( 414 ) 
 
 CHAPTER III. 
 
 WAGERS. 
 
 Wagers at Common Laic 
 
 Wager on the Life of Kapolcon . 
 
 Wager on the Eesiilt of an 
 Election 
 
 Betting on a Race 
 
 Bets not recoverable 
 
 Deposit recoverable before tJie 
 Event 
 
 Eccision of the Court of Common 
 I'leas 
 
 irhat is a Wagering Contract . . 
 
 Money advanced icith Stipula- 
 tion 
 
 Trice of Mare to be increased, if 
 she won, hy her Winnings . . 
 
 Billiard 3Iatch 
 
 Eotundity of Earth 
 
 Trotting against Tune 
 
 Agreement with Tipster 
 
 Walking Match 
 
 Contribution to Terson nominat- 
 ing the Winner not within 
 Troviso 
 
 Second Horse may receive Tart 
 of the Stakes within the Tro- 
 viso 
 
 Effect of Wagers being void on 
 Xote given in Taymcnt 
 
 Wagering Contracts by Brokers 
 void but not illegal 
 
 Contracts may be illegal, which 
 are not void 
 
 Money paid on void Contract . . 
 
 414 Lecision in Equity 
 
 415 Money paid on illegal Game not 
 
 recoverable 
 
 id. The Act for the Suppression of 
 
 id. Betting Llouses 
 
 id. The Stock Jobbing Act 
 
 Gaming on the Stock Exchange . 
 id. As in a Time Bargain 
 
 Question to be left to the Jury . . 
 
 416 Statute only affects Contract 
 
 417 tchich makes Wager 
 
 Statute against Wagering Toli- 
 
 id. cies 
 
 What held to be such a Tolicy . . 
 
 418 irar/er as to a Eeelaration of 
 
 id. War 
 
 id. What was held not to be such 
 
 id. a Tolicy 
 
 id. Taying a Bet 
 
 419 Giving a Security 
 
 Where a Note or Bill is a Gift . 
 Taking a stolen Bank Note in 
 
 id. Tayment 
 
 Taking a stopped Note in I\(y- 
 ment 
 
 420 What invalidates the Holder's 
 
 Bight 
 
 id. Mala fides must be distinctly 
 proved 
 
 421 Money borrowed to pay Bets .... 
 A Betting Agent 
 
 id. A Betting Tartner 
 
 id. I Cheating Wager 
 
 422 
 
 id. 
 
 id. 
 423 
 
 id. 
 id. 
 id. 
 
 424 
 id. 
 
 id. 
 
 id. 
 425 
 id. 
 id. 
 
 426 
 
 id. 
 
 id. 
 
 id. 
 427 
 
 id. 
 
 id. 
 428 
 
 Wagers at 
 common law. 
 
 WAGERS. 
 
 Ai.L Wagers wliicli were not against the principles of 
 morality, public decency or sound policy, were held good 
 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 happen 
 within the terms upon which the contract was made {a). 
 
 (a) Junes V. Bandall, C'uwp. 09 ; 2 IIa-\vk. c. 92. 
 
WA(iERS. 415 
 
 A Wager by wliicli A. received from B. one hundred Wager on tlie 
 guineas on tlie 31st of May, 1802, in consideration of pay- j^^*^ ^^ Napo- 
 ing him a guinea a day so long as Napoleon Bonaparte 
 (then First Consul of the French Eepublic) should live, 
 was held to be roid on the grounds of immorality and 
 imjDolicy. 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 Wager on the 
 two voters with respect to the event of an election of a ^f^^l* o* ^^ 
 
 GiGCtlOU 
 
 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 (r). 
 
 Until the late Act of Victoria ((i?), Wagers above a cer- Betting on a 
 tain amount were declared to be illegal by Statute ; now, , ^^^ ^?„ , 
 
 o ^ */ / ? longer iii6^3-l, 
 
 however, the illegality no longer exists, and therefore '^ " 
 Betting on a Eace may now be practised to any extent 
 without any penalty being incurred (e). 
 
 But by the above-mentioned Act (/) it is provided, that Bets not re- 
 " all contracts or agreements, whether by parol or in writ- <^overable. 
 ing, by way of Gaming or Wagering, shall be null and 
 void ; and no suit shall be brought or maintained in any 
 Court of Law or Equity for recovering any sum of money 
 or valuable thing alleged to be won upon any wager, or 
 which shall have been deposited in the hands of any per- 
 son 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 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" (/). 
 
 However, a party depositing a sum of money with a Deposit re- 
 Stakeholder, by way of Wager and not as a Stake (g), may f^^^^^'"^^^^® 
 recover his money back, if he give Notice to the Stake- event, 
 holder, 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 in the Court 
 of Common Pleas, Westminster, Nov. 30th, 1846, it ap- 
 peared that a match in harness had been made between one 
 Isaacs, a Jew dustman, and the plaintiff, who was a Cab 
 
 (i) Gilbert v. iS>/kes, 16 East, (r) See the Eules of Eacing, 
 
 150. ' Appendix, Part 3. 
 
 (c) Allen V. Hearn, 1 T. R. 56. (/) 8 & 9 Vict. c. 109, s. 18. 
 
 {(I) 8 & 9 Vict. c. 109, s. 15. (y) Distinction taken in Connor 
 
 V. Qi<ic/c, cited 2 W. Ela. 708. 
 
41G AVAGERS. 
 
 owner, aud on the event of this Race they had made a 
 Wager of 20/. 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 require 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 was 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 Yict. 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 de- 
 positing the money had given Notice to the Stakeholder to 
 pay him it back before the time had arrived for the Wager 
 to be decided. And the Jmy, on the evidence, found a 
 verdict for the plaintiff (A). 
 Decision of A rule uini for a new trial, on the ground of misdirec- 
 
 the Court of f [gn, was afterwards obtained in the Court of Common 
 Pleas. Pleas, and in discharging the rule Mr. Justice Maule said : 
 
 — " Looking at the whole section (/), critically and gram- 
 matically, 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 Wager. 
 This cannot be considered as an action brought for re- 
 covering 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 that he declined to abide by the 
 Wager, the money ceased to be money dej)osited 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. PTpon these grounds I think this point 
 
 {h) Varney v. Hichnan, Nov. 30, (/) 8 & 9 Vict. c. 109, s. 18, 
 
 1846; 5 C. B. 281. Appendix. 
 
WAGERS. 417 
 
 ought to be determined in favour of the plaintiff. It was 
 said in the course 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 moneys depo- 
 sited 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, JJ., agreed (,/). 
 
 The test applicable in some cases to the determination What is a 
 of the question whether a Contract is a Wagering Con- Wagering 
 tract or not within this Statute, is, whether the price of *^°^ ^^° ' 
 the subject-matter is to vary according to the issue of an 
 event totally unconnected with its actual value. Thus 
 in a case in which the plaintiff and defendant, while con- 
 versing as to some rags, which the plaintiff proposed to 
 sell, and defendant to buy, disputed as to the price of a 
 former lot of rags, the plaintiff asserting the pjice to have 
 been lower than the defendant asserted it to have been. 
 They agreed that the question should be referred to M., a 
 spirit merchant, and that Avhichever party was wrong, 
 should pay M. for a gallon of brandy, and that if the 
 plaintiff was right, the price of the lot now on sale should 
 be G.s. per cwt., but, if the defendant was right, it should 
 be 3s. per cwt. M. decided that the plaintiff was right. 
 The plaintiff thereupon sent the rags to the defendant, but 
 the defendant refused to accept them at 6b\, offering 5.s. 
 An action having been brought for goods bargained and 
 sold, it was held by the Court of Queen's Bench that this 
 was a Wagering Contract, which could therefore not be 
 enforced by legal process, and that it made no difference 
 that there was a real intention to part with the goods {k). 
 
 If money is advanced upon the security of a deed in Money ad- 
 pm'suance of a stipulation or agreement between the danced with, 
 plaintiff and defendant, that out of it money lost by the ^ ^^^ ^ ^°°" 
 defendant to the plaintiff on betting transactions should 
 be paid to the jDlaintiff, it is a mere colourable loan and 
 evasion of the Statute, and the deed is invalid ; but if 
 there be no such stipulation or agreement, and the plaintiff 
 advance the money as a loan for the defendant to dispose 
 of as he pleased, though the plaintiff expected to be paid 
 out of the money so lent, the deed is valid (/). 
 
 [j) Varneij v. Hickman, 5 C. B. 90-t. And see Wihon v. Cole, 36 
 
 282. And see further, ante, pp. 393 L. T., N. S. 702. 
 
 —397, "Stakeholders." [1) Millx. Fox, 4 H. & N. 359 
 
 (/.•) Roiirke v. Short, 5 E. & B. [Ex. Ch.). 
 
 O. E E 
 
418 
 
 "WAGERS. 
 
 Price of 
 Mare to be 
 increased, if 
 she won, by 
 her Avin- 
 ninofs. 
 
 Billiard 
 Match. 
 
 Rotundity of 
 earth. 
 
 Trotting 
 ao'ainst time. 
 
 Agreement 
 ■with Tipster. 
 
 In a ease where the plaintiff and defendant agreed that 
 the plaintiff should take the defendant's Mare in exchange 
 for that of the plaintiff; and that the defendant should 
 give the plaintiff half of the winnings of her first two races, 
 or, in case she should be sold before then, that the defen- 
 dant should pay the plaintiff one-third of what she should 
 have been sold for; it was held by the Irish Coui-t of 
 Common Pleas, that the above agreement, being one 
 simply to give an increased price for the Mare, upon 
 the occurrence of a state of facts, which might add to her 
 value, was a legal Contract, and not in the nature of a 
 Wager {m). 
 
 Where an action was brought to recover a sum of money 
 lost by playing in the ordinary way with two persons at 
 billiards, the players having staked sums of money on suc- 
 cessive games ; it was held that such a transaction was not 
 within the proviso of the 8 & 9 Vict. c. 109, s. 18, inas- 
 much as the players did not contribute or agree to contri- 
 bute any sum to be awarded to the winner (;?). 
 
 Where the plaintiff and W. deposited each 500/. with 
 the defendant, on an agreement that if W. on or before 
 the 15th of March, 1870, proved the convexity or ciu-vatiu-e 
 to and fro of the surface of any canal, river, or lake, by 
 actual measurement and demonstration to the satisfaction 
 of the defendant, W. would receive the two sums de- 
 posited ; but if W. failed in doing this, the two sums were 
 to be paid to the plaintiff — it was held that the agreement 
 was a wager, and consequently null and void within the 
 statute (o). 
 
 So where H. and the plaintiff deposited 50/. each with 
 the defendant and entered into a written agreement that 
 the 100/. shoidd be paid to H. if his horse trotted eighteen 
 miles in an hour, and if not then to the plaintiff ; it was 
 held that the transaction was simply a wager, and did not 
 come within the proviso in 8 & 9 Vict. c. 109, s. 18, as to 
 contributions to a prize or sum of money to be awarded to 
 the winner of any lawful game, sport, pastime or exer- 
 cise (p). 
 
 And a wager under the disguise of a contract to pay a 
 
 {m) Crofton v. Colffaii, 10 Ir. 
 Com. Law. Reps. 133. 
 
 («) Farso)is Y. Alexander, 1 Jur., 
 N. S. 660. 
 
 (o) Ilampdcji v. Wahh, L. R., 
 IQ.B. D. 189 ; 45 L. J., Q. B. 238 ; 
 
 33 L. T., N. S. 852 ; 24 W. R. 607. 
 ( p) Batson v. Newman, L. R., 1 
 C. P. D. 573 ; 25 W. R. 85. And 
 see Coombs v. Dibble, L. R., 1 Ex. 
 248 ; 35 L. J., Ex. 167 ; 14 L. T., 
 N. S. 415. 
 
WAGERS. 419 
 
 reward for information will not evade the Act. In Ilig- 
 (jinson v. SiDfpson {q), the plaintiff was a tipster, i.e. gave 
 information as to the probable winners of Horse races. 
 Upon his giving the name of a Horse to the defendant as 
 the probable winner of a certain race, it was agreed between 
 them that the plaintiff shonld have 21. on the Horse at 25 
 to 1 , that is to say, that if the defendant backed the Horse 
 and won, the j)laintiff should have 50/. out of his winnings, 
 but if the Horse lost the plaintiff should pay the defendant 
 21. The defendant did back the Horse and it won, and 
 the plaintiff thereupon claimed 50/. out of the defendant's 
 winnings ; and it was held that the agreement was void, 
 and that the 50/. could not be recovered. 
 
 It was laid down in the case of Batty v. Marriott (r). Walking 
 that though there be but two subscribers to a plate, prize, or ^^atch. 
 sum of money to be awarded to the winner of a lawful 
 game, and those two subscribers the competitors themselves, 
 yet it is not less a contribution within the exception in the 
 statute, (8 & 9 Yict. c. 109, s. 18,) if the agreement be, 
 that the whole sum subscribed shall be paid over to the 
 winner, and if it be a bond fide subscription or contribution 
 on the part of those two persons. But what the court had in 
 their minds in that case was the question whether the game 
 was a lawful or unlawful game, and having come to the 
 conclusion that it was a lawful game, they were of opinion 
 that there was nothing in the case which was struck at by 
 the Act of Parliament, and that the Act was only intended 
 to strike at unlawful games (s). This view has, however, 
 been recently held by the Court of Appeal to be erro- 
 neous {t) ; and it has been decided that an agreement to 
 walk a match for 200/. a-side, the money being deposited 
 with a stakeholder, is a wager, and null and void under 
 the statute ; and that the deposit of the money is not a 
 subscription or contribution for a sum of money to be 
 awarded to the winner of a lawful game within the proviso. 
 
 And in a case in which the plaintiff agreed with B. Contribution 
 and others, that a match should be made between a Mare, **^ person 
 the property of M., and a Mare, the property of the plain- ^"^er nof 
 tiff, and that the party nominating the winner should receive within pro- 
 from the others 100/., and that 100/. should be forfeited ^^i^*^- 
 
 (?) L. R., 2 C. P. D. 76; 46 Biggie \. Eiqgs, L. R, 2 Ex. D. 
 
 L. J., C. P. 192 ; 36 L. T., N. S. 422 ; 46 L. J., Ex. 721 ; 37 L. T., 
 
 17 ; 25 W. R. 303. N. S. 27 ; 25 W. E. 777— C. A., 
 
 (r) 5 C. B. 832. and ante, p. 394. 
 
 (n) See per Lord Cairns, L. C, (/) JDigglry. Higgf, xbl xiijirr. 
 
 V. E 
 
 O 
 
420 
 
 WAGERS. 
 
 Second Horse 
 may receive 
 part of the 
 Stakes with- 
 in the pro- 
 viso. 
 
 Effect of 
 wagers being 
 void on note 
 given in pay- 
 ment. 
 
 by the party making default in causing tlie Mare nominated 
 by him to run, it was held by the Irish Court of Queen's 
 Bench that no action was maintainable upon such an 
 agreement, inasmuch as it did not come within the proviso 
 of the Section (i^), which excepts "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 Grame, Sport, 
 Pastime, or exercise," from the operation of the previous 
 part of the Section ; and that this Contract was a mere 
 Wager depending upon an accidental circumstance, and 
 not upon the running of a Pace (.r). 
 
 The proviso that the foregoing part of this Section shall 
 not apply to any Subscription or Contribution, for or 
 towards any plate, &c. to be awarded to the Winner or 
 Winners of any lawful game, is not the less applicable 
 where the entire sum of money subscribed is not awarded 
 to the fii'st Horse. Therefore where the conditions of a 
 Pace were that a subscription should be made up of the sum 
 of 3/. each, subscribed by the owners of the Horses, and 
 a sum of thirty sovereigns added thereto out of the Pace 
 Fund, out of which the expenses and a sum of 1/. 10s. were 
 to be deducted and paid to the Treasurer, and 3/. '6s. to 
 the owner of the second Horse, they were held to be good, 
 and satisfied the requirements of the proviso (?/). 
 
 The onus of proving the consideration to be a good 
 one does not lie with the subsequent holder of a promissory 
 note given in payment of money lost on a wager, such 
 wager not being within the statutes to which the 5 & 6 
 Will. 4, c. 41, is applicable, and being therefore simply void 
 within 8 & 9 Yict. c. 109, s. 18. Thus in a case {z) in 
 which a promissory note was given in payment of a bet 
 (upon the amount of hop duty payable in 1851, which was 
 not therefore within 5 & 6 Will. 4, c. 41 (a) ), and an 
 action was brought upon it, it was held that it lay upon 
 the defendant to prove the absence of consideration for it ; 
 for, though proof that a negotiable instrimient was affected 
 with fraud or illegality in the hands of a jorevious holder 
 raises a presumption that he would indorse it away to an 
 agent without value, and consequently calls on the plaintiff 
 
 (m) 8 & 9 Vict. c. 109, 8. 18. 
 
 (z) Iricin v. Otborne, 5 Ir. Com. 
 Law Eeps. 404. 
 
 {y) Crofton V. CoJgnn, 10 Tr. Com, 
 Law Reps. 133. 
 
 (.-) Fitch V. Jones, 5 E. & B. 238 ; 
 S. v., 24 L. J., Q. B. 293. 
 
 (") As to the scope of this Sta- 
 tute, see post. Chap. 5, and see 
 also the Statute, Appendix. 
 
^YAGERS. 421 
 
 for proof that he gave value, yet the presumption does not 
 arise, when the previous holder merely held without con- 
 sideration. "The note was given to secure payment of a 
 Wagering Contract, Avhich even before 8 & 9 Yict. c. 109, 
 the law would not enforce, but it was not illegal, and there 
 is no penalty attached to such a Wager ; it is not in viola- 
 tion of any Statute nor of the common law, but is simply 
 void, so that the consideration was not an illegal con- 
 sideration, but equivalent in law to no consideration at 
 all"{b). 
 
 In accordance with the same principle it was held by Wagering 
 the Exchequer Chamber in the case of Smith v. Liiu/o {c), ^^^^^^^^^^^ 
 that although an unlicensed person who assumes to act as void but not 
 a broker (in London) in the buying of shares in a public illegal. 
 Company, is, by reason of 6 Anne, c. 16, incapacitated 
 from suing for commission, yet he may recover money 
 which by the usage of the share-market he has been obliged 
 to pay to the seller as the price of the shares ; there being 
 nothing to show that the payment was made in pursuance 
 of any illegal Contract, or that it was a necessary part of 
 the duty of a broker, as such, to pay the money. 
 
 A Contract may be illegal without being void. Thus Contracts 
 by 1 & 2 Vict. c. 106, s. 29, it is rendered illegal for any "Jf/^^j^JT" 
 spiritual person holding a benefice to engage in trade, fre'not void, 
 except in certain cases. And by section 31 it is expressly 
 provided that no Contract shall be deemed to be void by 
 reason only of the same having being entered into by a 
 spiritual person trading or dealing ; but that every such 
 Contract may be enforced by or against such spiritual 
 person. The effect of this Statute is to allow a Con- 
 tract, which it pronounces to be illegal, to be enforced, 
 although the party with whom it was made was at the 
 time aware that the other party was a spiritual person 
 holding a benefice. The party offending is liable to the 
 penalty, but at the same time must perform the Con- 
 tract (f/). 
 
 The fact that the Contract was originally void cannot Money paid 
 be set up as a defence to an action for money paid, in ^^ ^^^ ^"^* 
 satisfaction of that Contract, to the defendant for the 
 
 (i) Per Lord Campbell, C. J., K. 80G- C. A. 
 
 Fitch V. Joues, 5 E. & B. 238. And (r) Smith v. Undo, 5 C. B., N. S. 
 
 see Li/)m v. Bell, 10 Ir. R., C. L. 587. 
 
 487 ; Fi/ke, Ex parte. Lister, lit re, {d) Leivis v. Briffht, 24 L. J,, 
 
 L. E,., 8 Ch. D. 754 ; 47 L. J., Bk. Q. B. 191. 
 100 ; 38 L. T., N. S. 923 ; 26 W. 
 
422 
 
 AVAGERS. 
 
 Decision in 
 Equity. 
 
 Money paid 
 on illegal 
 game not re- 
 coverable. 
 
 The Act for 
 the suppres- 
 
 use of the plaintiff (o) , and where money has been paid 
 by a third party for the Loser of a Wager to the Winner, 
 it is no answer to an action for money paid by the third 
 party for the use of the Loser at his request (./), or 
 without his request, if the third party is his agent for 
 making bets, unless deprived of the authority to do so 
 in express terms (g), that the money was paid in respect 
 of losses on Wagering Contracts made void by 8 & 9 Vict, 
 c. 109, s. 18. 
 
 But in the case of Beyer v. Adams (//), in which the 
 amount of a bet lost at a race was paid by the Loser into 
 the hands of a third party, who was the Betting Agent 
 of the Winner, and who died before he had paid it to the 
 Winner, it was held by Yice-Chancellor Stuart, upon a 
 claim being made by the Winner for payment out of the 
 deceased's estate of the amount due to him, and which 
 had been paid to the deceased, that this case was within 
 the words of the Statute that "no action or suit shall be 
 brought for recovering any sum of money won upon any 
 wager" («), and the claim was thereupon disallowed. It 
 must be observed that this decision is contrary to the 
 whole current of authority embodied in the decisions of 
 the Courts of Common Law (A-) . 
 
 When the game itself is illegal, or the money has been 
 won by some fraud or unlawfid device, so as to render the 
 winning of it illegal under the 8 & 9 Vict. c. 109, s. 17, it 
 is probable that an action would not lie to recover money 
 knowingly paid by the plaintiff (being a third party), at 
 the defendant's request, to a person to. whom the defendant 
 has thus lost it (/). 
 
 The Act for the Suppression of Betting Houses (;;?), 
 which is treated of in the Chapter on Betting Houses and 
 
 {e) Johnson v. Lansley, 12 C. B. 
 468. 
 
 (/) Knight v. Cambers, 15 C. B. 
 562 ; Knight v. Fitch, 15 C. B. 
 566 ; Jessop v. Lutivi/tch, 24 L. J., 
 Ex. 65 ; Lyne\. Siesfdd, 1 H. &N. 
 278; Rosewarnc N. Billing, lOJur., 
 K. S. 496. 
 
 [g) Oiilds V. Harrison, 24 L. J., 
 Ex. 66 ; Bnhb v. Yclverton, Kcr, 
 In re, 24 L. T., N. S. 822; 19 
 W. R. 739 ; Oalcham v. Banndvn, 
 44 L. J., C. P. 309; 32 L. T., 
 N. S. 825. 
 
 {h) Beyer v. Adams, 26 L. J., 
 Ch. 841. 
 
 (0 8 & 9 Vict. c. 109, s. 18. 
 
 (/.') Knight v. Cambers, 15 C B. 
 562 ; Knight v. FUch, 15 C. B. 566 ; 
 JessopY. Lntxcgtch, 24L. J., Ex. 65; 
 Quids V. Harrison, 24 L. J., Ex. 66 ; 
 Ly7w V. Siesjeld, 1 H. & N. 278 ; 
 Bosocarnc v. Billing, 10 Jur., N. S. 
 496. 
 
 (/) Chitty on Contracts, 1 1th ed. 
 548. See M^Kinnell v. Bobinson, 3 
 M. & W. 434 ; also post. 
 
 (m) 16 & 17 Vict. c. 119, Ap- 
 pendix. 
 
A\ AGE lis. 423 
 
 Gramiug Houses {)>), has made various important provisions sion of Bet- 
 witli respect to Betting, and with respect to receiving ^^^S Houses, 
 money, &c., as the consideration for any assui-ances, &c., 
 to pay money, &c. (o) — or as a Deposit on any Bet, on 
 condition of paying any money, &c. — " on the happening of 
 any event or contingency of or relating to a Horse Race, or 
 any other Eace, or any Fight, Game, Sport or Exercise " {p) . 
 
 The Stock- Jobbing Act (7 Greo. 2, c. 8), which is inti- The Stock- 
 tuled " An Act to prevent the infamous Practice of Stock- Jobbing Act. 
 Jobbing," was passed with a view to prevent a common 
 practice which had been found destructive to the interests 
 of the country. It rendered illegal all Time bargains in 
 the Public Funds (q), but Time bargains relating to 
 Shares (r), or in Foreign Funds (s), were held not to be 
 void either under the Act or at Common Law. The Act 
 was repealed in 18G0 by the 23 & 24 Yict. c. 28. 
 
 AVhere each i^arty means to break the contract, but to Gaming on 
 ffive the other a remedy ao:ainst him for the difference of ^^ ^^ock 
 
 O I/O ^ ^ JTi X C n cjTl Q*6 
 
 price, according as the Market may rise or fall, it is a ° ' 
 
 Gfambling transaction, being a mere Bet upon the futm-e 
 price, and the contract is therefore void under 8 & 9 Viet, 
 c. 109 {f). 
 
 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 into ^^rgam. 
 the hands of the purchaser. It is nothing more than a 
 Wager made between the parties upon the diif erence 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. 
 
 And the question to be left to the Jury in such case is. Question to 
 whether it be a bond fide contract, which each party at the Je Mt to 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 {ii). 
 
 But the statute only atfec-ts the contract which makes Statute only 
 
 (h) See Eetting Houses and (a) Wells -v. Porter, 3 Scott, 141. 
 
 G-aming Houses, post, Chap. 5. [t) Grizetcoodr. Blane, 11 C. B. 
 
 (o) 16 & 17 Vict. c. 119, s. 1, 540. Aijd f-.ee Barry r. Croske}/, 2 
 
 Appendix. J. & H. 1 ; Coojoer v. Neil, 27 W. R. 
 
 {p) Ibid. ss. 3. o. 159. 
 
 Iq) Oakley v.JUffbi/, S Scott, I9i. («) Ibid. 541; Bennett v. Kail, 
 
 (r) Hewitt v. Price, 4 M. & G. before Mr. Justice Crompton, 
 
 355; Williams v. True, 23 L. T. Guildhall, .Tan. 23, 1853. See Hill 
 
 72. V. Fox, 4 H. & N. 359. 
 
424 
 
 WAGERS. 
 
 affects Con- 
 tract ■which 
 makes Wiiffer. 
 
 Statute 
 against Wa- 
 gering Poli- 
 cies. 
 
 What held to 
 be such a 
 Policy. 
 
 Wager as to 
 declaration 
 of War. 
 
 What was 
 held not to 
 be such a 
 Policy. 
 
 tlie'Bet or "Wager (.r). Thus where the plaintiff, a broker, 
 was employed by the defendant to speculate for him on 
 the Stock Exchange ; to the knowledge of the plaintiff the 
 defendant did not intend to accept the stock bought for 
 him, or to deliver the stock sold for him, but expected that 
 the plaintiff would so arrange matters that nothiug but 
 differences should be payable by him ; and the plaintiff 
 accordingly entered into contracts on behalf of the defen- 
 dant upon which he became personally liable, and sued the 
 defendant for indemnity against the liability incurred by 
 him, and for commission as a broker; it was held by the 
 Court of Appeal, affirming the judgment of Lindley, J., 
 that the contract was not illegal at common law, and was 
 not in the nature of a Gaming and Wagering contract 
 against the provisions of the statute (>/). 
 
 It is enacted by 14 Greo. 3, c. 48, s. 1, that " No In- 
 surance shall be made by any Person or Persons, Bodies 
 Politic or Corporate, on the life or lives of any person 
 or persons, or on any other event or events whatsoever, 
 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 Wagering ; 
 and that every Assurance made, contrary to the true 
 intent and meaning hereof, shall be null and void to all 
 intents and pm-poses 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 mider 14 
 Geo. 3, c. 48 (;:). 
 
 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 Coiu't of Exchequer was of a contrary opinion, that 
 the Wager was void under 14 Geo. 3, c. 48. No Judg- 
 ment, however, was ever given on the case {a). 
 
 Where money was advanced upon an Assignment of 
 an expected devise, with a condition that if there should 
 not be such a devise, then that the money should be re- 
 
 [x) Per Brett, L. J., Cooper v. 
 Niel, 27 W. R. 1.59. 
 
 (y) Hardy v. Thacker, L. R., 4 
 Q. B. D. 685 ; 48 L. J., Q. B. 
 289; 39 L. T., N. S. 595; 27 W. 
 
 R. 158— C. A. 
 
 (z) ratersoii v. Toivell, 9 Bing. 
 320. 
 
 [ii) See Foatcr v. Thackeray, cited 
 in Allen v. Hearyu 1 T. R. 57, n. 
 
^": 
 
 WAGERS. 425 
 
 paid witliout interest ; it was lield not to be a Policy on 
 the life of the testator within ]■! Gfeo. 3, o. 48 {b). 
 
 As no Wager can be tried in any Com't of Law or Paying a Bet. 
 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 secmity for Giving a 
 money, either won by betting on the sides and hands of security, 
 persons Gaming, or hnoiiinghj lent for the purpose of such 
 betting^ or where such betting is going on, the consideration 
 is illegal under 5 & 6 Will. 4, c. 41. But any other 
 secmity under seal would appear to be good, where the 
 Graming is not illegal {d). 
 
 A bond given to persons to whom the obligor has lost 
 Bets on Horse-races, which he is unable to pay, in order to 
 prevent them from taking the steps which, under the con- 
 ventional code established among betting men, they are 
 entitled to take, and which would be followed by conse- 
 quences involving the obligor in considerable pecuniary 
 loss, is valid [e). 
 
 So that if a Note or Bill be given in payment of any Where a note 
 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 v. 
 
 ratehett {/), said, "If a man give money as a gratuity, 
 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 
 writing not under seal can have any binding effect. The 
 law makes no difference between such a promise and a 
 verbal one. There is the same distinction as to a Bill of 
 Exchange. If a party gives to another a negotiable in- 
 strument on which other pai-ties are liable, the man w^ho 
 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 
 
 {b) Cook V. Field, 15 Q. B. 475. [e) Bulb v. Yelverton, L. R., 9 
 
 (c) 8 & 9 Vict. c. 109, s. 18. And Eq. 471 ; 39 L. J., Ch. 428 ; 22 
 
 see per Lord Cairns, L. C, JJifi'ile L. T., N. S. 258 ; 18 W. R. 512. 
 
 V. Iliqgs, L. R., 2 Ex. D. 422; if) Easton \. Pratchctt, 1 C. M. 
 
 46 L.J., Ex. 721 ; 37 L. T., N. S. & R. 798 ; 8. C. 3 Dowl. 472 ; 1 
 
 27. Gale, 83 ; and see the same case in 
 
 {d) See Gaming, post, Chap. 4. error, 2 C. M. & R. 542 ; 4 Dowl. 
 
 549 ; 1 Gale, 250 ; 6 C. & P. 736. 
 
426 
 
 "VVAGERS. 
 
 Taking a 
 stolen Bank 
 Note in pay- 
 ment. 
 
 Taking stop- 
 ped Note in 
 payment. 
 
 Wliat invali- 
 dates the 
 holder's 
 right. 
 
 Mala Jill es 
 must be dis- 
 tinctly 
 proved. 
 
 wliether the giver binds himself by the indorsement 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 promise of a gift, 
 whether verbal or in writing, will not be binding." 
 
 A Race Cburse is a mart where stolen or lost Notes may 
 be readily disposed of, and therefore a party should always 
 use due caution in taking a Bank Note from a stranger, 
 either in pajonent of a Bet, or in change out of payment 
 for Bds lost, and the larger the amomit of the Note the 
 greater the care required. 
 
 A loud fide holder of a stopped note, or other negotiable 
 secimty, that is to say, a person who has giv^en value for 
 it, and who has had no notice at the time that the party 
 from whom he takes it has no title, is entitled to recover 
 upon it, even although he may at the time have had the 
 means of knowledge of that fact, of which means he neg- 
 lected to avail liimself. Thus, where a money-changer at 
 Paris, twelve months after he had received notice of a 
 robbery of bank-notes at Liverpool, took one of the stolen 
 notes (for 500/.) at Paris, giving cash for it, less the cur- 
 rent rate of exchange, from a stranger, whom he merely 
 required to produce his passport, and Tvaite his name on 
 the back of the note, it was held that the circumstance of 
 his forgetting or omitting to look for the notice was no 
 evidence of mala fides {[/). 
 
 In Goodman v. Harvey (h), the Court of Queen's Bench 
 held that there must be actual mala fides to invalidate the 
 right of the holder of a Bill or Bank Note, received from 
 a person having no title to it. And also that the existence 
 even of gross negligence was unimpoi*tant, except so far as 
 it might be evidence of mala fides {//). 
 
 This decision was confirmed by the case of Ufl/er v. 
 liich (/), where the Com't of Queen's Bench held that mala 
 fides in the holder of a negotiable security, if relied on, 
 must be distinctly alleged. And that the only proper 
 way of implicating him in an alleged fraud, is by averring 
 that he had Notiee of it, and that an allegation that he was 
 not a houd fide holder, is not equivalent to an averment of 
 such Notice. 
 
 (ff) JiapJiael v. Hank of JEtigland, 
 17 C. B. 161. 
 
 (/*) Goodman v. Ilorvcy, 4 A. & 
 E. 870. 
 
 (;) Uther V. Rich, 10 A. & E. 
 784 ; and sec Arboin v. Anderson, 
 1 Q. B. 498. 
 
AVAGERS. 427 
 
 Formerly money borrowed for the express purpose of Money bor- 
 settling losses on a Race to the amount of 10/. or upwards rowed to i^ay 
 could not be recovered by the lender, although he bore no 
 part in the transaction (/.•). This was so held on the 
 groimd 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 liace, 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 IJ afforded 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 country, where such Grames were not illegal, the 
 injunction was refused (/). 
 
 An Agent authorized by a party to lay Bets for him on A Betting 
 a Eace to the amount of 10/. or upwards, could not if he Agent, 
 lost pay the winner without an express direction so to 
 do (vi). But now since 8 & 9 Yict. c. 109, has done away 
 with the illegality of all wagers on Races, a Betting Agent 
 may pay all losses within the scope of his commission, and 
 recover the money so disbursed from his Principal (;?). 
 And an agreement between a Principal and his Agent that 
 the Agent shall employ moneys of the Principal in betting 
 on IPorse-races, and pay over the winnings therefrom to 
 his Principal, is not a contract by way of Gaming and 
 Wagering, and it is not illegal (o) . 
 
 The Act (p) does not make gaming contracts illegal^ but A Betting- 
 null and void, and therefore it would be contrary to public Partner, 
 morality to lay down that a party who has received money 
 lost in a Wager should by pleading this statute escape 
 paying over the fair share to his partner {q). Where 
 therefore a Bill of Exchange was given as a security for 
 a share of money won in betticg transactions a plea of 
 Gaming under 8 & 9 Yict. c. 109, s. 18, was held to be 
 bad ((/). 
 
 [k) iPKinneU v. Rohlnson, 3 M. 562; Knight v. Fitch, 15 C. B. 566; 
 
 & W. 434 ; Canne v. Bryan, 3 B. Oulds v. Harrison, 24 L. J., Ex. 
 
 & Aid. 179. 66 ; Buhb v. Yeherton, Ker, In re, 
 
 (0 Quarricrv. C'ohtoi, 1 Turn. & 24 L. T., N. S. 822; 19 W. R. 
 
 Ph. 147. And see Fi/f:e, i:.v 2]arfc, 739. See ante, p. 422. 
 
 Lister, In re, L. E.., 8 Cli. D. 754 ; (o) Becston v. Beeston, L. R., 1 
 
 47 L. J., Bk. 100 ; 38 L. T., N. S. Ex. D. 13 ; 45 L. J., Ex. 230 ; 33 
 
 923 ; 26 W. R 806— C. A. L. T., N. S. 700 ; 24 W. E,. 96. 
 
 (;h) Clayton v. Lilly, 4 Taunt. {p) 8 & 9 Vict. c. 109, s. 18. 
 
 165. [q] Johnson v. Lansley, 12 C. B. 
 
 («) Knight x. fambcrs, 15 C. B. 168. Sec ante, pp. 420, 122. 
 
428 
 
 WAGERS. 
 
 Cheating In the casG of Reg. v. Orbcn{r), it was held to be an 
 
 wager. indictable offence to get a person to lay money on a Race, 
 
 and prevail with the party to run booty ; for though the 
 Cheat was pricate in this particular, yet it was puhllc in its 
 consequences. Cheatiu(i, however, is now specially pro- 
 vided against by the 17th section of 8 & 9 Vict. c. 109, 
 where it is enacted that " every person who shall by any 
 fraud or unlaivful device or /// practice, in icagering 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 pretence with intent to checd or defraud 
 such person of the same, and being convicted thereof shall 
 be punished accordingly;" and therefore every such per- 
 son is guilty of a misdemeanor, and on conviction is liable 
 at the discretion of the Court to Penal Servitude for the 
 term of five years (.s), or to be imprisoned for any term 
 not exceeding two j^ears {t), and the prosecutor is entitled 
 to his costs under 7 Geo. 4, c. 64, s. 23 [u). 
 
 (r) Reg. v. Orbell, 6 Mod. 42. {l) 24 & 25 Vict. c. 96, s. 88. 
 
 («) 24 & 25 Vict. 0. 96, s. 88, {ii) Per Patteson and Talfourd, 
 
 amended by 27 & 28 Vict. c. 47, JJ., Reg. v. Gardner, "Worcester 
 
 8. 2. Spr. Ass. 1851. 
 
( 4-29 ) 
 
 CHAPTER IV. 
 
 GAMING. 
 
 Gaming not unlawful 429 
 
 Where a Loiulon Apprentice 
 
 '■'■frequents^'' Gaming 430 
 
 Where a Clergyman plays at tin- 
 lawful Games id. 
 
 Unfair or excessive Gaming .... id. 
 
 Using false Bice id. 
 
 Winning exorbitant Sums .... id. 
 
 Losses by a Bankrupt 431 
 
 Cheating in a Game or at Play. . id. 
 The Fraud or unlauful Device. . id. 
 Conspiracy to cheat at Skittles. . 432 
 Conspiracy to cheat at Cards . . id. 
 Where a Criminal Information 
 
 tvas refused id. 
 
 Contracts for Gaming id. 
 
 Money deposited for Gaming . . id. 
 
 French Law as to Games 433 
 
 English Laiv as to Games id. 
 
 The ivord Game id. 
 
 Laivful Games, ^r id. 
 
 Lawful Gaming or Play 434 
 
 " Game'''' under the Highway 
 
 Act id. 
 
 Unlawful Games id. 
 
 Lotteries 435 
 
 lotteries declared Nuisances , . . . id. 
 Penalty for keep'ing a Lottery . . id. 
 Penalty for drawing at a Lot- 
 tery id. 
 
 Lietlegoes declared Nuisances . . id. 
 Penalty for keeping a I'laee for 
 
 a Lottery or Littlego id. 
 
 Penalty for suffering any Lot- 
 tery to be drawn 436 
 
 Justices have Summary Juris- 
 diction id. 
 
 5 Geo. 4, c. 83, s. 4, "Instrtf- 
 
 ments of Gam'ing'''' id. 
 
 36 ^- 37 Vict. c. 38, s. 3 id. 
 
 Racing Sweeps 437 
 
 Sale of Property by Lot id. 
 
 Attempt to evade the Law .... 438 
 Art Unions id. 
 
 A Lottery of Houses 438 
 
 Ballot in Land Societies 439 
 
 Allotment or Partition by Lots . id. 
 
 Choice of Allotments id. 
 
 The Conservative Land Society . . id. 
 
 Periodical Braw'mgs 440 
 
 Repayment of Money id. 
 
 Cock-jight'ing , Bull-baiting, ^r. id. 
 
 Keeper of a Place for this pur- 
 pose id. 
 
 Within the Metropolitan Dis- 
 trict 441 
 
 Gaming in a Public House .... id. 
 
 Where Money is staked id. 
 
 Where Money is not staked .... 442 
 
 Money lent for Gaming id. 
 
 Money lent for the Stakes of a 
 
 Prize Fight id. 
 
 Test ichere the Transaction is 
 
 illegal id. 
 
 Securities for Money lent for 
 
 Gaming 443 
 
 Action on a Promissory Note . . id. 
 
 Identification of Promissory 
 
 Note id. 
 
 An I U id. 
 
 Money lost at Play id. 
 
 Securities for 3Ioney so lost .... 444 
 
 General Effect of 5^-6 Will. 4, 
 
 f. 41 id. 
 
 Action against Acceptor of Bill 
 
 of Exchange 446 
 
 Action by Acceptor of Bill of 
 
 Exchange 447 
 
 Recovery of Principal and In- 
 terest id. 
 
 Evidence of Owner of a Gaming 
 
 House id. 
 
 Summons to set aside a War- 
 rant of Attorney id. 
 
 A Post Obit Security held good . id. 
 
 Deed substituted for one tainted 
 
 with Illegality id. 
 
 GAMING. 
 
 Gaming, by playing at Cards, Dice, or any other Games, Gaming not 
 and all exercises, when practised without fraud and as a unlawful. 
 
430 
 
 GAMING. 
 
 Where a 
 London 
 apprentice 
 ' ' frequents ' ' 
 Gaming. 
 
 Where a 
 Clergyman 
 plays at un- 
 lawful 
 Games. 
 
 Unfair or 
 excessive 
 Gaming. 
 Using false 
 Dice. 
 
 Winning ex- 
 orbitant 
 sums. 
 
 recreation, are not offences at common law ; sneTi trans- 
 actions, however, have never met with much encourage- 
 ment when brought into a Court (a). 
 
 By the custom of London, it is a sufficient cause for a 
 Master to turn away his Apprentice, that he frequents 
 Graming, and he may justify it before the Chamberlain (b). 
 
 But it is laid down that the Bishop cannot refuse to 
 induct a Clergyman when presented to a living, merely 
 because he is a Player at unlawful Gfames, or a Haunter 
 of Taverns {c) ; because, as Sir Simon Degge says, each of 
 these is not malum in sc, but only malum prohibitum {d). 
 
 An Indictment lies for unfair or excessive Gaming, 
 which has always been considered illegal {e). 
 
 "Common players and hazarders with false Dice" are 
 indictable (/"), and even an infant may be indicted for 
 cheating with false Dice {cj). 
 
 The winning of exorbitant sums of money has been dis- 
 couraged both by Courts of Law and Equity. Thus, in 
 the case of Sir Bazil FirehmMc v. Brett (A), it appeared 
 that the defendant and Sir William Eussell dined with 
 the plaintiff at his house, and after dinner fell into play. 
 When they began, the defendant and Sir William Eussell 
 had not above eight guineas between them, but they won 
 about 900/. in ready money, which the defendant brought 
 away with him. The plaintiif, 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 witli it in his 
 possession, the plaintiff and his servants seized upon it, 
 and took it from him. The plaintiff had brought an in- 
 formation 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 his Lord- 
 ship said, that he thought the sum very exorbitant for a 
 
 (ff) Bac. Abr. tit. Gaming, A. ; 
 Dalton, c. 23 ; Shcrhon v. Colthacl:, 
 2 Vent. 175 ; Crockford v. Lord 
 Maidstone, Appendix. 
 
 (i) Woodroffe v. Farnham, 2 Vem. 
 291. 
 
 [c) Specofs case, 5 Rep. 58 a, 
 p. 118. 
 
 {d) Degge's P. C, Part 1, 
 Chap. 1. 
 
 {e) 2 Rol. Abr. 78. 
 
 ( /') LecHer s crtse, Cro. Jac. 497. 
 
 iff) Bac. Abr. Infant (H.). 
 
 (h) Sir Basil Fircbrasse v. Brett, 
 1 Vem. 489 ; Sir Bazill Firehraas v. 
 Brett, 2 Vern. 70. 
 
(iAMiX(;. 4:31 
 
 man to los^ at play in one night, and that if it was in Lis 
 power he would prevent it ; and cited the case of Sir Cecil 
 Bishop V. Sir John Staples in the time of Lord Chief Jus- 
 tice 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 
 discouragement was given to Gaming at Common Law, it 
 ought much more to be done in a Court of Equity. 
 
 By 12 & 1;} Yict. c. 106, s. 201, no Bankrupt was enti- Losses by a 
 tied to his Certificate if he should have lost by any sort of bankrupt. 
 Gaming or Wagering in one day 20/., or within one year 
 next preceding his Bankruptcy 200/., 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 performed within one week after the con- 
 tract, or where the Stock bought or sold was not actually 
 transferred or delivered, in pursuance of such contract" (/). 
 But this clause was repealed by 24 & 25 Yict. c. 134. 
 
 Cheating in a Game or at Play is now an indictable Cheating in a 
 offence; for by the 17th section of 8 & 9 Vict. c. 109, it Gjimeorat 
 is enacted, " that every person who shall by any fraud or *^' 
 nnlauful device or ill p)raeticc 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 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 obtain- 
 ing 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 "accordingly" {j). 
 
 Tossing coins for wagers is a sport, pastime or exercise 
 if not a game within this section (/r) . 
 
 The "fraud or unlawful device" must be practised The fraud or 
 during the Game itself to support an indictment for obtain- ^^J^^^ful <ie- 
 inrj moncii hy a false pretence, under 8 & 9 Yict. c. 109, 
 
 (0 12 & 13 Vict. c. 106, 8. 201. equally divided as to whether the 
 
 (V) 8 & 9 Vict. c. 109, s. 17; term '''blackleg" was x>er se de- 
 
 and see Cheating in a Wager, ante, f amatory or not. 
 
 Part 3, Chap. 3. In the case of (/.) liecj. v. O'Connor, 45 L. T., 
 
 Burnett v. Allen (4 Jur., N. S. N. S. 512— C. C. K. 
 
 488), the Court of Exchequer were 
 
432 
 
 GAMING, 
 
 Conspiracy 
 to cheat at 
 
 Slcittles. 
 
 Conspiracy 
 to cheat at 
 Cards. 
 
 Where a cri- 
 minal infor- 
 mation was 
 refused. 
 
 Contracts for 
 Gaming'. 
 
 Money de- 
 positf d for 
 Gaming-. 
 
 s. 17 ; aud it is not sufficient that a fraud was resorted to, 
 to induce the prosecutor to play (/). 
 
 Where several persons confederated and combined to- 
 gether to play at Skittles, so that the play of one of 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 conspiracy {ui). 
 
 So, also, where C. and J. were indicted for conspiring to 
 cheat certain persons out of money by playing at Cards, 
 it appeared that J. went first into an Inn and sat down 
 to drink ; 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. Tliere 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 eventually C, 
 who had won some money, was discovered cheating in 
 concert with J. ; upon this 0. left the room, but was after- 
 wards 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 (;?)• 
 
 A Criminal information was refused by the Court of 
 Queen's Bench for a conspiracy to cheat, where it appeared 
 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 Yict. c. i09 (p), "all contracts or agreements, 
 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 by way of Gaming, either party 
 may recover back his share before it has been paid over [q). 
 But in no case can the ichole be recovered by the Winner. 
 
 ij) Reg. V. Bailcu, 4 Cox, C. C. 
 397. 
 
 (;«•) Beg. v. Bailey, 4 Cox, C. C. 
 390. 
 
 («) Reg. V. Clark and Jervis, be- 
 fore Mr. Justice Erie, Bodmin Spv. 
 Ass. March 23, 1853. 
 
 (rt) Rex Y. Peach, 1 Burr. 548. 
 
 Ip) 8 & 9 Vict. c. 109, s. 18, 
 Appendix. 
 
 (q) Cotton V. Thurland, 5 T. Ri 
 408 ; Smith v. Bickmore, 4 Taunt. 
 474 ; lladchw v. Jackson, 8 B. & C. 
 221 ; Hodson v. Terrell, 1 C. & M. 
 
(ixynsG. 433 
 
 The French law does not allow an action for a debt at French law 
 play. But Gaines proper in the exercise of Feats of arms, ^^ *o ^^^ ^^' 
 Foot races, Horse or Chariot races. Tennis, and other sports stakes ° 
 of the same nature, which require address and agilitj of ^ 
 
 body, are excepted, subject to the power of the Court to re- 
 ject the demand where the sum appears to be excessive (>•). 
 
 Under the Proviso in the 18th section of 8 & 9 Yict. English law 
 c. 109, the enactment in that section is " not to be deemed ^^ ^° *^*^ ^^- 
 to apply to any subscription or contribution, or agreement stakes ° 
 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 winner " at the termination of " any 
 lawful Gfame, Sport, Pastime, or 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 Grame has con- 
 eluded. It would appear, therefore, that so long as the 
 money won is a SfaJie and not a JBef, and the Game, &c. is 
 lawful, and perhaps the sum ascertained before the com- 
 mencement of such Game, &c., the winner may maintain 
 an action against a loser for his Subscription or Contribu- 
 tion to the Stake {t). 
 
 The following are lawful Games, Sports, Pastimes or Lawful 
 exercises : — Plorse Paces («), Steeple Chases (.r). Trotting Games, &c. 
 Matches (^), Coursing Matches (;:), Foot Races («), Boat 
 Paces {b), Eegattas (c), Powing Matches (c), Golf, Wrest- 
 
 802; Hampden V. Walsh, Ij. R., 1 37 L. T., N. S. 27; 25 W. R. 
 
 Q. B. D. 189 ; 45 L. J., Q. B. 238; 777— C. A., ante, p. 394. 
 
 33 L. T., N. S. 852; 24 W. R. («) See the Law as to Racing, 
 
 607 ; Bifjgle v. Higgs, L. R., 2 ante, Part 3, Chap. 2. 
 
 Ex. D. 422 ; 46 L. J., Ex. 721 ; 37 [x) See Evans v. I'ratt, 4 Scott, 
 
 L. T., N. S. 27 ; 25 W. R. 777— N. R. 378. 
 
 C. A. ; Trimble v. Hill, L. R., 5 (y) See Holmes v. Sixsmith, 7 
 
 App. Cas. 342. See ante, p. 396. Exch. 802. 
 
 (?•) Code Civil, Book 3, tit. 3, {z) See Daintree v. Hutchinson, 
 
 Chap. 1, art. 1905, 1966. 16 M. & W. 87 ; Emerson v. Dick- 
 
 (a) 8 & 9 Vict. c. 109, 8. 18, son, ante, p. 400. 
 Appendix ; and see "Wagers, ante, [n) See Battij v. Harriott, 5 C. 
 
 Part 3, Chap. 3. B. 818 ; Coates r. Hatton, 3 Stark, 
 
 {t) The distinction between a 61. 
 Stake and a Bet was taken in {l>) See Cheeseman v. Hart, ante, 
 
 Connor v. Quick, cited 2 W. Bla. p. 409. 
 
 708. See also liatti/ v. Marriott, 5 (c) See Bostock v. North Stafford- 
 
 C. B. 818; Biggie Y. Higgs, L. R., shire Hail icag Co., 4 E. & B. 798: 
 2 Ex. D. 422 ; 46 L. J., Ex. 721 ; 
 
 O. F F 
 
434 
 
 CAMINf;, 
 
 Lawful 
 Gaming or 
 Play. 
 
 "Game" 
 under the 
 Highway- 
 Act. 
 
 Unlawful 
 Games. 
 
 ling Matches (rf), Cricket (e), Tennis, Fives, Rackets, 
 Bowls (./), Skittles (g), Quoits, Curling, Putting Stone, 
 Football {//), and every bo)id fide variety, or similar de- 
 scription of sucli Games, &c. (/). The winner therefore, 
 in any of these, may recover from the loser, or each of the 
 losers, his Subscription or Contribution to the Stake (/.•). 
 
 The following lawful Games when played for money {I) 
 may be called Lawful Gaming or Piay : — Whist and 
 other lawful Games at Cards, Backgammon {m), Bil- 
 liards (»), Bagatelle (»), Chess (o). Draughts (o), Domi- 
 noes (o), &c. 
 
 By the 72nd section of the Highway Act (p) a penalty 
 is imposed upon any person " who shall play at Football 
 or any other Game on any part of the Highw\ay, to the 
 annoyance of any passenger or passengers." Therefore 
 where a number of persons assembled together in a public 
 Highway to enjoy a diversion called " a Stag-hunt," 
 which consisted in one of the number representing a Stag, 
 and the others chasing him, whereby an obstruction was 
 caused, it was held that this was " a Game " within the 
 meaning of the Act {q). 
 
 A variety of Games are prohibited by Statute. Thus 
 all Lotteries are declared to be jjublic nuisances in what- 
 ever way they may be drawn or arranged (r). The 
 Games of The Ace of Hearts, Pharaoh, Basset and 
 Hazard («) are to be deemed Games, or Lotteries by Cards 
 or Dice, and are iinlaicfnl, whether played at a public table 
 or in private (/). Also the Game of Passage and every 
 other Game with Dice, except Backgammon and other 
 Games played with Backgammon tables, are to be deemed 
 
 ((/) See Kennedy v. Gad, 3 C. «& 
 P. ;i76; Ma)ihy\. Scott, 1 Mod. 136. 
 
 {e) See Jeffreys y. Walter, iWils. 
 220 ; Walpole v. Sanders, 7 D. & R. 
 130 ; Hodson v. Terrill, 1 C. <S: M. 
 797 ; Holmes v. Bagge, 17 Jur. 1095. 
 
 (/) See Slgel v. Jebb, 3 Stark. 2. 
 
 [g) See Foot v. Baker, 5 M. & G. 
 339; Batti/Y. Marriott, 5 C. B. 818; 
 Seg. V. Bailey, 4 Cox, C. C. 396. 
 
 (A) See Manby v. Scott, 1 Mod. 
 136. 
 
 (J) See 7 & 8 Vict. c. 3. 
 
 (A-) See 8 & 9 Vict. c. 109. 
 
 (/) If money is not staked, it is 
 not Gaming, lieg. v. Ashton, 22 L. 
 J., M. C. 1, Q.B. 
 
 {m) See 13 Geo. 2, c. 19, s. 9, 
 Appendix. 
 
 («) See 8 & 9 Vict. c. 109, s. 13, 
 Appendix. See I'arsons v. Alex- 
 ander, 1 Jur., iSr. S. 660. 
 
 (o) See Ecg. \. Ashton, 22 L. J., 
 M. G. 1, Q. B. 
 
 {p) 5 & 6 Will. 4, c. 50. 
 
 [q) Pappin V. Maynard, 9 L. T., 
 N. S. 327. 
 
 {r) 10 & 11 Will. 3, c. 17, s. 1. 
 
 (.S-) See Crocl-ford v. Lord Jfaid- 
 stone, Ajjpendix ; Bex v. Liston, 
 T. R. 240. 
 
 (0 12 Geo. 2, c. 28, s. 2, Appen- 
 dix ; and see M^Einnell v. Robinson, 
 3 M. & W. 441 ; Rex v. Listou, 
 5 T. R. 240. 
 
GAMING. 435 
 
 Games or Lotteries by Dice within 12 Geo. 2, c. 28 {ii). 
 The Game of Kolypoly, or Roulet, is also prohibited under 
 the same penalties (r). 
 
 The Statutes containing provisions concerning Lotteries Lotteries. 
 and Littlegoes are 10 & 11 Will. 3, c. 17; 9 Ann. c. 6 ; 
 10 Ann. c. 2G ; 8 Geo. 1, c. 2 ; 9 Geo. 1, c. 19 ; 6 Geo. 2, 
 c. 35 ; 12 Geo. 2, c. 28 {ic) ; 13 Geo. 2, c. 19 ; 42 Geo. 3, 
 0. 119; 46 Geo. 3, c. 148 ; 6 & 7 Will 4, c. 66; and 
 7 & 8 Vict. c. 109 ; and are to be found in Burn's Jus- 
 tice (.r), 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, for legalizing 
 Art Unions. 
 
 The statute 10 & 11 Will. 3, c. 17, recites the mischiefs Lotteries de- 
 arising from Lotteries under colour of certain patents and clared nui- 
 grants ; and then enacts, not only that all such Lotteries, 
 but also that all other Lotteries, are public nuisances [ij). 
 
 It imposes a Penalty of 500/., to be recovered in any of Penalty for 
 her Majesty's Courts at Westminster, upon every person LQ^j.^g'^^ ^ 
 who may " exercise, expose, open or show to be played, 
 thrown or drawn at, any such Lottery, Play, or Device, or 
 other Lottery" (;:). 
 
 Also a Penalty of 20/. to be recovered in like manner Penalty for 
 upon every person who " shall play, throw or draw at any ^ ^7^°^ ^* ^ 
 such Lottery, Play or Device, or other Lotteries" {a). 
 
 The statute 42 Geo. 3, c. 119, recites the mischiefs Littlegoes 
 occasioned by certain Lotteries called Littleejoes, and de- declared uui- 
 clares that " all such Games or Lotteries called Littlegoes '''^^°^''^- 
 are public nuisances " {h). 
 
 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, dra^^oi, or thrown at or in. Lottery or 
 either by Dice, Lots, Cards, Balls, or by numbers or Littlego. 
 figm'es, or by any other way, contrivance, or device what- 
 soever, any Game or Lottery called a Littlecjoe, 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). 
 
 («) 13 Geo. 2, c. 19, s. 9, Ap- and see AUport v. Xntt, 1 C. B. 
 
 pendix. 989. 
 
 (r) 18 Geo. 2, c. 34, s. 1, Ap- (-) 10 & 11 Will. 3, c. 17, s. 2. 
 
 pendix. [a) 10 & 11 Will. 3, c. 17, s. 3. 
 
 (m) See Appendix. {b) 42 Geo. 3, c. 119, s. 1 ; and 
 
 (V) 3 Bere & Chitty's Burn's see AUport v. Nuit, 1 C. B. 989. 
 
 Justice, 322. {<■) 42 Geo. 3, c. 119, ss. 1,2; and 
 
 (//) 10 & 11 Will. 3, 0. 17, s. 1 ; see JUport v. Xidf, 1 C. B. 989. 
 
 F f2 
 
436 
 
 GAMING. 
 
 Penalty for 
 suffering any 
 Lottery to be 
 drawn, &c. 
 
 Justices have 
 
 summary 
 
 jurisdiction. 
 
 5 Geo. 4, 
 c. 83, s. 4, 
 " Instru- 
 ments of 
 Gaming'." 
 
 The same Penalty is also incurred by any person who 
 " shall knowingly suffer to be exercised, kept open, shown, 
 or expose to be played, drawn, or thrown at or 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" (r/). 
 
 Before the passing of the Vagrant Acts, 3 Greo. 4, c. 40, 
 and 5 Geo. 4, c. 83, Offenders not proceeded against for the 
 above Penalty were punishable as lioyues and Vagabonds, 
 imder 17 Geo. 2, c. o. 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 Justices 
 of the Peace their jurisdiction under 42 Geo. 3, c. 119 {e). 
 
 By 5 Geo. 4, c. 8-J, s. 4, people playing or betting "in 
 any street, road, highway, or other place, at or with any 
 table or instrument of Gaming, at any Game or pretended 
 Game of Chance, are to be deemed Pogues and Yaga- 
 bonds," and to be liable to imprisonment with hard labour 
 for any term not exceeding three calendar months. The 
 words "instruments of gaming" here signify things des- 
 tined for that purpose, and therefore were held not to apply 
 to halfpence used for pitch and toss (/) ; nor to cards, as, 
 in a case in which the defendant was seen to play with 
 three cards, they were held by Erie, J., not to come within 
 this designation in this statute {g). But it is now provided 
 by the Yagrant Act Amendment Act, 1873 (36 & 37 Yict. 
 c. 38), s. 3, that " every person playing or betting by way of 
 wagering or gaming in any street, road, highway, or other 
 open and public place, or in any open place to which the 
 public have or are permitted to have access, at or with any 
 table or instrument of gaming, or any coin, card, token or 
 other article used as an instrument or means of such wager- 
 ing or gaming at any game or pretended game of chance, 
 shall be deemed a rogue and vagabond within the true in- 
 tent and meaning of 5 Geo. 4, c. 83, and as such may be 
 convicted and punished under the provisions of that Act, 
 or in the discretion of the Justice or Justices trying the 
 case, in lieu of such punishment, by a penalty for the first 
 
 {d) 42 Geo. 3, c. 119, s. 2. 
 
 [e) Case of H. King, Bristol, 
 Dec. 6, 1853 ; S. C. nom. Err/, v. 
 Justices of Bristol, Jan. 11, 1854, 
 Q. B. 
 
 (/) Watson V. Martin, 13 W. R. 
 144. 
 
 {g) li. v. Itoach, Judge's Cham- 
 bers, July 12, 1856. 
 
GAMING. , 437 
 
 offence not exceeding forty shillings, and for the second or 
 any subsequent offence not exceeding five pounds." Where 
 the defendants were charged with being on a Racecourse 
 taking deposits on the bets made and amounts staked on 
 the several Horses, and soliciting bystanders to make bets, 
 charging ten per cent, on the amounts won, for the use of an 
 instrument which displayed the state of the odds, and by a 
 mechanical arrangement varied the announcement from time 
 to time according to the bets made, and they having been 
 convicted, it was held, that such a machine was " an instru- 
 ment or means of wagering" (A). But betting odds on 
 one of several Dogs about to run in a race and paying half 
 a sovereign, is not jolaying or betting with a coin as an 
 instrument of gaming (?). It would appear that a railway 
 carriage {k), no less than an omnibus (/), is an " open and 
 public place " within this statute (k) . And a field belonging 
 to a company which they allow their workmen and their 
 families to use for recreation and bowling matches, and 
 where strangers are also allowed to play and are not turned 
 away, is a place to which "the public have access" (w?). 
 
 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 
 of the Horse, which afterwards should be placed first in 
 the Race, was drawn out of another box, should be en- 
 titled to receive 100/. (o). 
 
 The mischief intended to be remedied by the Laws Sale of Pro- 
 against Lotteries was not the gain acquired by the indi- P^^'^^y ^7 ^°^- 
 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 (p). 
 
 (h) Eeg. v. Wolverham ptoti {Jus- {m) TurnbuU Y.Ap2)Ieton. Ab 3 .V. 
 
 tices), Tollett v. Thomas, L. R., 6 Q. 469. 
 
 B. 514 ; 40 L. J., M. C. 209 ; 24 L. {u) The proviso in s. 18 of 8 & 9 
 
 T.,N. S. 508; 19 W. R. 890. Vict. c. 102, has no relation to 
 
 (i) Hirst v.lfolesbHn/, Ij.Ti., 6 Q. Racing Lotteries, and therefore 
 
 B. 130 ; 40 L. J., M. 'C. 76 ; 23 L. does not make them legal; Gattij 
 T., N. S. 55 ; 19 W. R. 240. v. Field, 15 L. J., Q. B. 408. 
 
 [k) Ex parte Freestone, 25 L. J., [o) Allport v. Nutt, 1 C. B. 988. 
 
 M. C. 121. \p) See Al^wrt v. Nutt, 1 C. B. 
 
 (0 Reg. V. Holmes, 22 L. J., M. 984. 
 
 C. 122. 
 
438 
 
 GAMING. 
 
 Attempt to 
 evade the 
 Law. 
 
 Ai't Union.s. 
 
 A Lottery of 
 Houses. 
 
 Where an announcement was made by a dramatic per- 
 former that the holder of a certam 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 consequently 
 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 Lotlenj (q). 
 
 So, too, the distribution of presents, accordingto a previous 
 announcement after a musical entertainment to persons 
 occupying certain numbered seats, who with the rest of the 
 audience had paid a sum of money for admission generally 
 to the room, the numbers of the fortunate recipients being 
 called out, and the presents handed to them, was held to 
 be a Lottery within 42 Greo. 3, c. 119, s. 2 (r). 
 
 By the Act legalizing Art Unions (s), it is provided 
 that voluntary associations constituted for the distribu- 
 tion of Avorks 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 630/. 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 agreement 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 Lotfcnj. The defendant contended that the agreement 
 was illegal under 10 & 11 Will. 3, c. 17, and the deed 
 founded upon it void. The issue being upon the defen- 
 dant, the defendant himself was put into the box, and 
 stated that a scheme had been adopted at Manchester for 
 disposing of house property by Lottery, 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. The shares were publicly advertised 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 
 
 ('/) Roddi/ V. Stanleij, 5 Ir. Jur. ()■) Morris v. BIackina», 10 Jur., 
 
 10. N. S. 520. 
 
 (.s') 9 & 10 Vict. c. 48, s. 1. 
 
(.•AMIJS(;. 4-i9 
 
 plaintiff. 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 knowledge 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 exag- 
 gerated by the illegal nature of the contract. The plain- 
 tiff had taken a book containing shares Avhich he sold, and 
 accounted for the proceeds to the defendant, who, at the 
 time of the purchase, had no other means of paying for 
 the propert}', except from any proceeds which he might 
 obtain from the sale of the shares, and that was well 
 known to the plaintiff. The Jury, upon this statement, 
 immediately found a verdict for the defendant {t). 
 
 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 [u). 
 
 It is provided by the 11th section of this Act {x) 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 (//). 
 
 "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 pre- 
 sent in statu quo, that is, without the land, but with the 
 same account in the books of the Society as before the 
 Allotment. 
 
 • The plan of drawing by Ballot for priority of the right The Conser- 
 of choice, as adopted by the Conservative Land Society, g^*":^^ ^^^^^ 
 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 
 
 (0 Fisher v. Bridges, before Lord [x) 12 Geo. 2, c. 28, s. 11, Ap- 
 
 Campbell, C. J., Queen's Bench, penclix. 
 
 Feb. 1, 1853. («/) See ff Cuinior \. Bradshaic, 5 
 
 («) See Appendix. Exch, 890. 
 
440 
 
 GAMING. 
 
 Periodical 
 Drawinars. 
 
 Kepayment 
 of money. 
 
 Cock-fig-ht- 
 ing, BuU- 
 baiting, &c. 
 
 Keeper of a 
 place for this 
 purpose. 
 
 allotments, and to advances upon them when selected, 
 does not appear to fall within the words or spirit of the 
 Lotie)'!/ Ads. 
 
 A Society constituted avowedly for the benefit of its 
 members, making certain of them entitled to particular 
 benefits by the process of periodical drawings, does not 
 come within the Lottery Acts {z). 
 
 And the only system of allotment which could be con- 
 sidered a Ldttenj, is where there are a number of subscribers 
 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. 
 
 Cod:-fi(jhtin(j is illegal, and indictable at common law {a). 
 Coclx-fi(jhUncj and a variety of other cruel sports were 
 prohibited under a penalty by 5 & 6 Will. 4, c. 59, s. 3, 
 which however was repealed by 12 & 13 Yict. c. 92, s. 1. 
 By the 2nd section of this Act it was enacted that any 
 person " cruelly beating, ill-treating, over-driving, abusing, 
 or torturing, or causing or procuring to be cruelly beaten, 
 ill-treated, over-driven, abused or tortured, any animal, 
 shall pay a penalty not exceeding 5/." A cock has been 
 held to be " an animal " within this section, and therefore 
 a person who takes an active part in a cock-fight after one 
 or both is disabled, is liable to be convicted under this 
 section for causing or procuring a cock to be cruelly ill- 
 treated, abused or tortured (i). 
 
 And by s. 3 of this Act it is enacted, that "every person 
 who shall heep or use or ad in the management of any place 
 for the purpose of fighting or baiting any bull, bear, badger, 
 dog, cock, or other bird or animal, whether of domestic or 
 wild nature, or shall permit or suffer any place to be so 
 used, shall be liable to a penalty not exceeding 5/. for 
 every day he shall so keep or use or act in the manage- 
 ment of any such place, or permit or sufi^er any place to 
 be used as aforesaid : provided always, that every person 
 who shall receive money for the admission of any other 
 person to any place kept or used for any of the purposes 
 aforesaid, shall be deemed to be the keeper thereof ; and 
 
 {z) Jl'dllhu/ford V. Ilutual Societii, 
 L. R., 5 App. Cas. 685 ; 43 L. T., 
 iSr. S. 258; 2D W. R. 81— H. L. 
 And see Smith v. Anderson, L. E., 
 15 Ch. D. at p. 269, disapproving 
 Sykes w.Beadon, L. E.., 11 Ch. D. 
 
 170. 
 
 {a) Bac. Abr. Gaming (A.) ; 3 
 Keb. 403, 510. 
 
 {h) Bridge v. Parsons, 32 L. J., 
 M. C. 95. 
 
GAMING. 441 
 
 every person who shall in any manner encourage, aid or 
 assist at the fighting or baiting of any bull, bear, badger, 
 dog, cock, or other animal as aforesaid, shall forfeit and 
 pay a penalty not exceeding 5/. for every such offence." 
 It has been held to be no offence under this section to 
 assist at a cock-fight unless in a place kept or used for the 
 purpose (c). 
 
 By the Metropolitan Police Act (2 & 3 Yict. c. 47), s. 47, Within the 
 it is enacted, " that every person who within the Metro- Metropolitan 
 politan 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 
 of 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 
 n;ionth ; and it shall be lawful for the Commissioners of 
 Police, by order in writing, to authorize any Superinten- 
 dent belonging to the Metropolitan Police Force, with such 
 Constables as he shall think necessary, to enter any Pre- 
 mises kept or used for any of the purposes aforesaid, and 
 take into custody all persons who shall be found therein 
 without lawful excuse, and every person so found shall be 
 liable to a penalty of not more than 6s., 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 Licence Gaming in a 
 to suffer any gaming or any unlawful game to be carried P^^^lic 
 on on his premises (r/). ^^'^''^• 
 
 If money is staked at a lawful Game played in a Public Wliere money 
 House it is an offence against the tenor of the Licence ((?). ^^ staked. 
 Accordingly it is an offence against the tenor of his Licence, 
 if a licensed person allow private friends of his own, in his 
 own private room in the Licensed Premises, to play at 
 Cards for money (/). 
 
 But it is no offence on the part of a private friend of 
 a licensed person entertained by him after the hours of - 
 closing at his own expense within the Licensing Act, 1874 
 
 {c) 3Iorlci/ V. Greenhaigh, 32 L. {c) Eerj. v. Asliton, 22 L. J., M. 
 
 J., M. C. 93 ; Clarke v. Hague, 29 C. 2, Q. B. Decided under 9 Geo. 
 
 L. J., M. C. 105; Coy7ie v. Brady, 4, c. 61. 
 9 L. T., N. S. 30. (/) Pntten v. Ttliymer, 29 L. J., 
 
 {d) Licensing Act, 1872 (35 & 36 M. C. 189. See also Hare v. Os- 
 
 Vict. c. 94), 8. 17. home, 34 L. T., N. S. 294. 
 
442 GAMING. 
 
 (37 & 38 Viet. c. 49), s. 30, that lie was playing Cards for 
 money on tlie Licensed Premises (g). If a licensed person 
 permits on the Licensed Premises a Grame to be played, in 
 which each person contributes a certain sum towards the 
 purchase of a prize to be given to the winner, he is properly 
 convicted of unlawfully suffering Graming to be carried on 
 on his licensed premises contrary to s. 17 of the 35 & 36 Vict. 
 c. 94 (A). But in order to support a conviction under 
 s. 17 it is necessary to give some evidence of actual or con- 
 structive knowledge on the part of the person charged that 
 Graming was carried on on his premises (/) . The offence 
 may, however, be committed by connivance, either on the 
 part of the principal or the person in charge {j ) . 
 Where money But not if there is no money staked. Therefore a con- 
 is not staked, yiction was held to be bad which stated that the keeper of 
 a Public House licensed under 9 Greo. 4, c. 61, had been 
 " Gruilty of an oifence 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 Dominoes is not itself un- 
 lawful, and playing at Dominoes does not necessarily 
 amount to " Gaming" within the meaning of the Licence {k). 
 Money lent ' Moucy lent f or the purpose of Gaming would appear to 
 for Gaming, "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 (/) ; 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 (w) . 
 Money lent Thus in a case in which an action was brought to recover 
 
 for the Stakes ^^^ g^^^^ of money which was lent for the express purpose of 
 fio-ht. ^^^ " making up to the required sum the stakes to be deposited 
 by one of the parties to a Prize-fight, Mr. Justice Shee 
 nonsuited the plaintiff, on the ground that it was money 
 deposited by the plaintiff for an imlawful purpose (ii). 
 Test where The Test whether a demand connected with an illegal 
 
 the transac- transaction is capable of beino' enforced at law, is, 
 
 tion IS illegal. '- ^ 
 
 (ff) Cooper V. Osborne, 35 L. T., L. T., N. S. 779. 
 
 N.'S. 347. (a-) lirff. V. As/>(oii, 22 L. J., M. 
 
 (//) JBew V. Harstoii, L. E,., 3 Q. C. 1, Q. B. 
 
 B. D. 454 ; 39 L. T., N. S. 233 ; (/) Foot y. Baker, 5 M. & G. 339 ; 
 
 26 W. U. 915. and see ante, p. 427. 
 
 {i) Bosley v. Darics, L. R., 1 Q. (w) M' luunellY. Robinson, Zlsl.k 
 
 B. D. 84; 45 L. J., M. C. 27; W. 441. See ante, p. 422. 
 
 33L. T.,N. S. 528; 24W. R. 140. [n] Walker v. Langham, Bail 
 
 (;■) Redgate\.Haynes, L. R., 1 Q. Court, Feb. 9, 1865. 
 B. D. 89; 45 L. J., M. C. 65; 33 
 
GAMING. 443 
 
 whether the plaintiff requires any aid from the illegal 
 transaction to establish his case (o). As where illegality 
 appeared upon the plaintiff's own showing, who was 
 unable to establish his case, without setting up an illegal 
 agreement ( i)) . 
 
 ■ Bills of Exchange, Promissory Notes, or Mortgages Securities for 
 given for money lent knowingly for the purpose of ^"^^ ^^^^^ 
 Gaming, or playing at any Grame, or lent at the time and °* 
 
 place of such play {<}), to persons who during any part of 
 the time may play, are to be deemed to have been given 
 for an illegal consideration (r). 
 
 Thus where an action was brought to recover the sum Action on a 
 of 25/. on a Promissory Note given by the defendant to Promissory 
 the plaintiff, the defendant pleaded that he had given the 
 Note as security for a sum of money which the plaintiff 
 had given him to enable him to carry out a gambling pur- 
 pose on their joint account, namely — to enable him to make 
 certain Bets on a Plorse Race. And on this plea being 
 proved, the Jury found a verdict for the defendant (.s). 
 
 To an action on a Promissory Note, the defendant Identification 
 pleaded that it was given for a Gambling transaction, but ^' -^ xr f 
 gave the plaintiff no Notice to produce it, and it was not 
 produced. 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 {t). 
 
 An I O U being a mere acknowledgment of a debt, An I U. 
 does not amount to a Promissory Note. It is prima facie 
 evidence of an account stated, but not of money lent («). 
 And it has been held that a Bill in Equity will lie to dis- 
 cover whether an I TJ was given for money lent for the 
 purpose of Gaming (r). 
 
 Money lost at Play when paid cannot be recovered back Money lost 
 
 at Play. 
 
 (o) Simpson v. Bloss, 7 Taunt. (.s) Meynell v. Bone, before Mr. 
 
 246; i^ii-ar V. A"iV/io/;«, 2 C. B. 501, Baron Alderson, Middlesex Sit- 
 
 513 ; Broom's Maxims, 4th ed. tings, E. T. 1853. 
 
 692, 693. (0 Meynell v. Bone, 21 L. T. 158. 
 
 {p) See Mart in Y. Smith, 6 Scoit, («) Ftsenmayer y. Adcoek, 10 M. 
 
 N. R. 272. & W. 449 ; Croker y. JFalsh, 4 Ir. 
 
 (fj) If the money is lent at the Jur. 293 (Ex. Ir.) ; Byles on Bills, 
 
 time and place, the purpose of the 13th ed. 29, and the cases there 
 
 loan is assumed ; loot v. Baker, cited. 
 
 5 M. & G. 339. ((•) Wilkinson v. VEaugier, 2 Y. 
 
 (r) 5 & 6 Will. 4, c. 41 ; and see & C. 366. 
 Giving a Security for a Bet, p. 425. 
 
444 GAMING. 
 
 again by the loser (ic). But if it has not heen paid, the 
 winner cannot maintain any action for it, because the 
 contract is null and void (^). 
 Securities for All Securities under seal, except Mortgages, given for 
 money so lost. ]y;oney lost at lawful Play, or at any legal Game, would 
 now appear to be good (//) . 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 con- 
 sideration (z). 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 with Notice of the ille- 
 gality, or after they have become overdue, 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 [ct) . 
 
 Accordingly where a bond was assigned for a valuable 
 consideration without notice of objection to its validity, 
 the obligor having applied to the assignee for a further 
 advance, and offering to give a mortgage for the whole, 
 but stating no objection to the validity of the bond, was 
 not allowed afterwards to endeavom* to avoid the bond 
 by evidence that it was given to secure money lost by a 
 bet on a Horse Pace ; for the Court will not allow a 
 person to set up an objection to the validity of his own 
 obligation upon grounds which he suppressed at the time, 
 but against which, if divulged, the obligee could have pro- 
 tected himself (Z^). It appears, therefore, that bonds are 
 within the equity of 5 & 6 Will. 4, c. 41, which makes 
 securities valid in the hands of liond fide holders without 
 notice that the consideration was a gaming debt {c). 
 General effect The effect of the Act, therefore, seems to be, that where 
 w'^ii'^4^ a sum of money is won as a Stake in a lawful Grame, or 
 
 ■ ' ■ ' under other circumstances therein mentioned, and a Pro- 
 missory 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 circumstance of its 
 
 («') iPKinnell v. Robinson, 3 M. & pendix. 
 W. 441 ; Thistleu-ood v. Cracroft, (a) Smith, Contr. 186 ; TadenUhe 
 
 IM. &S. 500; Smith, Contr. 188. v. Holroyd, before Chief Justice 
 
 [x) 8 & 9 Vict. c. 109, s. 18. Wilde, Common Pleas Sittings, 
 
 (//) Formerly void under 9 Ann. Nov. 30, 1846. 
 c. 14, s. 1, which is altered and re- {b) Hawker v. Halliicell, 3 Sm. & 
 
 pealed by 5 & 6 Will. 4, c. 41, ss. 1, Giff . 194. See also ante, p. 417, Eill 
 
 2, and 8 & 9 Vict. c. 109, s. 15. v. Fox, 4 H. & N. 359. 
 
 (z) 5 & 6 Will. 4, c. 41, Ap- (f) See post, p. 446. 
 
GAMING. 445 
 
 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 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 Apple- 
 garth V. CoUey (d), 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 void, expressly enacts that 
 they shall be deemed to have been given on an illegal con- 
 sideration, 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 dii'ectly before the Court, perhaps a different 
 opinion might have prevailed. 
 
 In Thorpe v. Cohnan (e), 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 (/), however, Mr. Justice Coltman makes 
 the following remarks: — "It certainly does seem to be a 
 
 [d) Appleaarth t. CoUey, 10 M. & (r) Thorpe v. Cohnan, 1 C. B. 199. 
 
 W. 732. ' ' {f) Batty Y.Marriott, bC.B.^2B. 
 
446 GAMlX(i. 
 
 singular anomaly, that the Winner of a Race sliould be en- 
 titled to recover the Stakes, and yet that by the combined 
 operation of 9 Anne, c. 14, and 5 & 6 Will. 4, c. 41, if a 
 Promissory 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 consideration." 
 ^ The 5 & 6 Will. 4, c. 41, is " An Act to amend the Law 
 relating to Securities given for Considerations arising out 
 of Graming, usurious and certain other illegal Transac- 
 tions." It is founded on 16 Car. 2, c. 7, and 9 Anne, c. 14, 
 both of which are Acts to prevent excessive Graming ; and 
 the notion upon which the sections with regard to secu- 
 rities 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 pos- 
 sible to playing for ready money. The Legislature there- 
 fore 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 
 between the parties immediately on secmity being given. 
 This construction of the statute seems much more reason- 
 iable, than that all contracts within 5 & 6 Will. 4, c. 41, 
 in connection with 9 Anne, c. 14, before any security is 
 "given, should be void between the actual parties. 
 Action To an action against the acceptor of a Bill of Exchange, 
 
 cf tor ofBill drawn by the plaintiff, the defendant pleaded that a Bet 
 of Exchange, was lost by the defendant to A. B., and that the said Bill 
 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 plaintiif 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 uj)on was given in 
 consideration of the Bet, and that the plaintiif 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 {(j). 
 
 ((/) Hai/v. Ayl'uig, 20 L. J., Q. B. 171; and see BoxUon v. Ctghlan, 
 \ Bhio'. N. C. 640. 
 
GAMING. 447 
 
 Uuder 5,& 6 Will. 4, c. 41, s. 2, money paid to the Action by 
 indorsee by the acceptor of a Bill of Exchange, given for ^*^.^fPf%'^^ 
 a Gaming consideration, may be recovered from the person ciiaii°e. 
 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 {/i). 
 
 And where such a Bill paid by the plaintiff bore Inte- Recovery of 
 rest upon the face of it, it was held by the Court of P^'ii^cipal ^^^ 
 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 (/). 
 
 In an action on a Bill of Exchange, the defence was, Evidence of 
 that the money for which the Bill was given had been q^^^ ^ 
 lost in a Graming transaction. The person who let the House. 
 Room in which the Grambling took place, was asked a 
 question tending, if answered, to render him liable to be 
 proceeded against under 8 & 9 Yict. 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 (J). 
 
 In Barnett v. Raveniihaw (h), an order was made by a Summons to 
 Judge at Chambers, on a summons to show cause why a ^arran*t of 
 certain Warrant of Attorney, alleged to have been given Attorney. 
 for a Grambling debt, should not be set aside. 
 
 In 1833, a Post Obit security was given in considera- -A. Post out 
 tion of certain Gaming debts. In 1842, it was assigned Joa!'*^^'^*^ 
 to another pai-ty 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 (/). 
 
 In the case of The Attorney-General y. HoUingicorth {in), Deedsubsti- 
 it was held, that where, upon an advance of money, a talented wltlf 
 security has been taken, Avhich is tainted with usury (;?) or illegality, 
 other illegality, and afterwards another security is taken 
 for the same advance, not tainted with the illegality, and 
 obviating any necessity for resorting to the former one for 
 the recovery of the money, such substituted security is valid, 
 and the money really advanced can be recovered thereon. 
 
 (70 Gilpin V. Cluttcrbiick, 13 L. {I) Raivkcr y. TFood, IW.B.. 316, 
 
 T. 71. M. R. 
 
 (J) Ibid. 159. (/«) Att.-Gen. v. UolVuHjicorth, 
 
 (/) Fisher V. Ronalds, 22 L. J., 27 L. J., Ex. 102. 
 
 C. JP. 62. {n) The 17 & 18 Vict. c. 90, s. 1, 
 
 (/.•) Barnett v. Ravensltaw, 21 L. repeals all existing laws against 
 
 T. 63. usury. 
 
( 448 ) 
 
 CHAPTER V. 
 
 BETTING HOUSES AND GAMING HOUSES. 
 
 Betting Houses. 
 
 A Common Betting House .... 448 
 
 Act for the Suppression of Bet- 
 tin;/ Ilotises 449 
 
 " Using'" under this Act id. 
 
 " Flace" ivithin this Act .... id. 
 
 Moveable Desk 450 
 
 Cricket Ground id. 
 
 Figeon Shooting id. 
 
 Race Course, Umbrella .... 451 
 
 Moveable Box icithin Ring id. 
 
 Betting at a Club 452 
 
 Bur poses for irhich Houses or 
 
 Places are not to be used .... id. 
 
 Penalty for using them for such 
 
 Purposes 453 
 
 Penalty for receiving Money, ^-c. 
 
 on certain Conditions id. 
 
 Money, ^r. so received may be 
 
 recovered from the Holder . . id. 
 
 Act docs not e.rtend to Stakes in 
 
 a Race, i^-c id. 
 
 Penalty for advertising, ^-c id. 
 
 Provisions of Betting Act, 1874, 
 
 as to advertising 454 
 
 Poicer to search suspected Houses, id. 
 
 Power of Commissioners of Police. 455 
 
 The Levy and Application of 
 
 Penalties id. 
 
 Where Party neglects to prose- 
 cute id. 
 
 Ko Objection allowed on Matter 
 
 of Form id. 
 
 No Appeal from High Court . . id. 
 
 The remaining Provisions 456 
 
 Extension to Scotland id. 
 
 Gaming Houses. 
 
 A Common Gaming House .... 456 
 
 Indictment for keeping one .... 457 
 
 Charge in the Indictment id. 
 
 Any Person may go on ivith it. . id. 
 
 Statutory Provisions for an In- 
 dictment id. 
 
 Notice by two Inhabitants .... id. 
 
 Binding over the Party accused . id. 
 
 Puty of Overseers of the Poor . . 458 
 Penalty where Constable neglects 
 
 h is Duty id. 
 
 Setting up or playing at Hazard, 
 
 cjr id. 
 
 Evidence that Hazard has been 
 
 played id. 
 
 Rent of a Gaming House id. 
 
 A Subscription Club id. 
 
 What is a Common Gaming 
 
 House under 8 i^- 9 Vict. e. 109 . 459 
 Power of Justices id. 
 
 In the Metropolitan Police 
 
 District 460 
 
 Penalties on Gaming House 
 
 Keepers under 8^9 Vict. 
 
 f. 109 id. 
 
 Penalty for Flaying 461 
 
 Evidence of Gaming id. 
 
 Pijficulti/ of obtaining Evidence . id. 
 
 17 cj- IS Vict. c. 38 id. 
 
 Persons summarily convicted of 
 
 obstructing Officers id. 
 
 Persons giving false Names or 
 
 Addresses 462 
 
 Owner or Occupier may be fined 
 
 500/., or imprisoned id. 
 
 Persons apprclicnded may he 
 
 made Witnesses id. 
 
 Penalties and Costs id. 
 
 On neglect to prosecute, another 
 
 Person may be authorized to 
 
 do so 463 
 
 Remaining Provisions id. 
 
 Billiards, Bagatelle, ^-c id. 
 
 Regulations regarding Billiard 
 
 licences id. 
 
 Non-compliance ivith these Regu- 
 lations id. 
 
 Offences against the Tenor of the 
 
 licence 464 
 
 When Billiard playing is not 
 
 allowed id. 
 
 Constables may visit licensed 
 
 Houses id. 
 
 A Common 
 
 Betting' 
 
 House. 
 
 BETTING HOUSES. 
 
 It is quite clear tliat any practice whicli has a tendency 
 to injure the public morals, is an offence at common 
 
BETTING HOUSES. 449 
 
 law (a) . And it is equally clear that the keeping of a common 
 Betting House has such a tendency. For it is found that 
 persons are tempted by such places, not only to spend more 
 of their own money than they can properly afford to lose, 
 hut 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 " Act for the Suppression of Betting Houses "(^), Act for the 
 various stringent provisions are made, and it would appear ^f ^'^Tf-^^o.'^ 
 that persons tising any " House, Office, Koom or other Houses. " 
 place," not excepting the Eoom at Tattersalls or New- 
 market, or the Stand at Epsom, for certain j)urposes men- 
 tioned in the Act, are liable to the Penalties which it 
 specifies (c). 
 
 It is not quite clear what is meant by the word "w.s?>?^," " Using" 
 but as a " person using " a Place is distinguished from ^nder this 
 " persons resorting thereto," it is presumed that a person 
 using a Place within the meaning of this Act, must be a 
 person who uses the Place habitually not as a private 
 individual, but as a person who makes a business of at- 
 tending 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 Herse Pace, or other Pace, Fight, 
 Grame, Sport or Exercise" (c). 
 
 In the case of Doggett v. Caf ferns (d), the defendant, "Place" 
 a Betting agent and Bookmaker, was in the habit of within this 
 standing under certain trees in Hyde Park, and there 
 making bets on Horse Paces, and receiving deposits. 
 The plaintiff having made a bet with him, and paid his 
 deposit, brought an action for the return of the deposit, 
 and it was held by the Court of Common Pleas that the 
 defendant had brought himself within the meaning of this 
 Act, quite as much as if he had carried on his betting 
 transactions in a room or booth, and that the plaintiff 
 was therefore, under sect. 5 {e) entitled to recover back his 
 deposit in an action for money had and received. But this 
 decision was reversed by the Exchequer Chamber, and 
 Pollock, C. B., was of opinion that such a construction of 
 the Act was supplemental legislation ; but concurred with 
 
 {a) See Rex v. Eoqier, 1 B. & C. {d) Bogqett v. Cat terns (Ex. Ch.), 
 
 272; <S. C. 2D. & R. 431. 13W. 11.390; 19C. B., N. S. 767. 
 
 [h) 16 k 17 Vict. e. 119, Ap- {e) 16 & 17 Vict. e. 119. See 
 
 pendix. post, p. 453. 
 
 [r) Ibid. ss. 1, 3. 
 O. GG 
 
450 
 
 BETTING HOUSES, 
 
 Moveable 
 Desk. 
 
 Cricket 
 ground. 
 
 Pigeon 
 shooting'. 
 
 the Judges in tlie Court below in thinking- that a mere 
 spot, although not a " house," " office " or " room," would 
 not alone prevent it from being a place within the Act. 
 But he thought it must be a place capable of having an 
 owner or occupier, which that was not. There the defen- 
 dant resorted to a spot by a tree. The crowd might push 
 him away in moving about. There was no fixity of tenure 
 even for the daytime. He had no more exclusive occupa- 
 tion of the spot than anyone else in the park (/"). 
 
 In Sludc V. Morlei/ {[/), the facts were as follows: On 
 land adjoining a Race-course, and just outside an inclosure 
 reserved for ticket holders, was a long strip of ground of 
 six feet wide, bounded on one side by an iron railing, 
 which surrounded the inclosure, on the other side by a 
 l^ermanent wooden paling facing the open ground. Within 
 this strip were placed temporary wooden structures, in 
 which during the Races the business of betting was 
 carried on. They had desks fronting both ways, and at 
 each desk was a clerk with a book, and a person standing 
 in front of each desk conducted the business on behalf of 
 the person who rented the strip of land, and the bets were 
 'recorded by the clerk. At one of these structures the 
 defendant conducted this business, and, on appeal from a 
 conviction under section 3, it was held that this was an 
 " office " and a " place " within the meaning of the statute, 
 and that the appellant was rightly convicted. And Kelly, 
 C. B., expressly said that it did not matter whether there 
 was a roof or none, or whether the structure was moveable 
 or fastened to the earth. 
 
 A ground used for Cricket, Foot-racing, and other 
 Games or Sports, is a place within the meaning of the Act, 
 and the Owner, Occupier or Keeper, may be convicted 
 under the Act for knowingly permitting any other person 
 to use any such place for the purpose of betting with 
 persons resorting to it, though the person so using it is in 
 no sense the Occupier or Keeper of the premises {/i). 
 
 In Easticood v. Miller the defendant was the Occupier of 
 enclosed grounds, in which a pigeon shooting match between 
 two persons for 10/. a-side, and afterwards afoot-race, took 
 place : and into which the public were admitted on payment 
 of money. The persons who were admitted into the grounds 
 
 (/) Borigdt v. Cattcrns, 19 C. B., 
 N. S. 767 ; and see per Grove, J., 
 Gallaicay v. Maries, L. R., 8 Q. B. 
 D. 280, 281. 
 
 ((/) L. E., 3 Ex. 137; 37 L. J., 
 
 M. C. 105. 
 
 {h) Haigh v. Sheffield (Corpora- 
 iiou), L. E,., 10 Q.'B. 102; 44 L. 
 J., M. C. 17; 31 L. T., N. S. 536 ; 
 23 W. R. 517. 
 
BETTIKG HOUSES. 451 
 
 made bets with each other, both on the pigeon mateli and 
 on the foot-race. It was held that the grounds were a 
 " place," and that they were kept and used by the defen- 
 dant for the purpose of betting within the meaning of the 
 statute (/). 
 
 In Boices v. Fenirick (/.•), the appellant, Bowes, was on Race-com-se, 
 a Race-course, standing on a stool, over which was a large i^mttrella. 
 umbrella, similar to a carriage umbrella, capable of covering 
 several persons, the stock being made in joints like that of 
 a sweep's brush, so as to be taken in pieces, and it was 
 fastened in the ground with a spike. The umbrella, when 
 opened, v/as seven or eight feet high. It was a showery 
 day ; but the umbrella was kept up rain or dry. On the 
 umbrella was painted in large letters, " Gr. Bowes, Victoria 
 Club, Leeds." There was also a card exhibited on which 
 were the words " we pay all Bets first past the post." 
 Bowes was calling out offering to make Bets ; and he was 
 seen to make Bets, the money being deposited with him, 
 and for which he gave a ticket. On a case stated by 
 Justices, the question for the opinion of the Court was, 
 whether the stool and umbrella, used as aforesaid by the 
 appellant, did constitute a " place " within the terms of 
 section 3 of the Act. The Court held that they did, and 
 the conviction was therefore affirmed ; and Lord Coleridge, 
 C J., in delivering judgment, said, "It is plain that the 
 appellant was (provided the stool and umbrella constituted 
 an office, room or place within the meaning of the Act) 
 l^ublicly using them for a purpose prohibited by the Act. 
 The only question raised before us was, whether or not 
 they did constitute an office, room or other place. Now 
 the thing described clearly was not a house or room. Was 
 it an office or other place ? Possibly it might be said to be 
 in some sense an office : but I am of opinion that, at all 
 events, it was a ' place.' It was an ascertained spot 
 where the appellant, for the time at least, carried on the 
 business of betting with all persons who might resort 
 thither for that purpose. The card connected with the 
 umbrella and inscription upon it clearly indicated a fixed 
 and ascertained place used by the appellant for a purpose 
 prohibited by the Act." 
 
 In GaUaicay v. Ilan'cs (/), the respondent and a com- Moveable 
 
 (0 EastH-oodv.Miner,^.^., 9 Q. M. C. 107; 30 L. T., N. S. 524; 
 
 B. 440 ; 43 L. J., M. C. 139 ; SOL. 22 W. R. 804. 
 
 T., N. S. 716; 22W.R. 799. (/) L. R., 8 Q. E. D. 27.); ;;0 
 
 (A) L. R., 9 C. P. 339 ; 43 L. ,T., W. R. lol. 
 
 ,: t: O 
 
4o2 
 
 BETTING HOUSES. 
 
 Box •within 
 Rino-. 
 
 Betting at 
 Club. 
 
 Purposes for 
 which 
 Houses or 
 Places are 
 not to be 
 used. 
 
 panion, having paid for admission, were in a railed in- 
 closure of the grand stand at a Race-meeting. The 
 companion stood on a small wooden box not attached to 
 the ground, and he and the respondent called out offering 
 to make and making Bets with other persons. The 
 companion received the money for Bets made, and the 
 respondent booked the same. They stood together in one 
 place within the inclosure during the Races ; and it was 
 held that the fixed and ascertained spot, defined in the 
 inclosure by the box at which the respondent orally adver- 
 tised his willingness to bet, was a "place" used by him 
 for the purj)ose of betting with persons resorting thereto ; 
 and Gfrove, J., in the course of his judgment, said, " There- 
 fore I think all the cases show that a ' place ' to be within 
 the statute must be a fixed ascertained place, occupied or 
 used so far permanently that people may know that there 
 is a person who stands in a particular spot indicated by a 
 certain definite mark with whom they may bet. I do not 
 decide whether a person standing on a carriage step or in 
 a circle where the turf was cut away, or where a little 
 heap of stones was put down during the Races, would be 
 within the Act if he offered to bet there. But I am far 
 from saying that he would not be so. Here, however, in 
 my opinion, was a place Avithin the meaning of the Act." 
 
 But a Club, whose members habitually bet, is not within 
 the meaning of the Act (ni). 
 
 No House, &c. or other Place is to be opened, kept or 
 used for the purpose of the Owner, &c. or of any person 
 'Ks/'iir/ 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, 
 betting with persons resorting thereto, or for 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, Sjoort 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 {n), and is to be deemed a common 
 Gaming House within 8 & 9 Vict. c. 109 (o). 
 
 (w) Oldliam v. lif/inxJeii, 41 L. .T., 
 C. P. 309; 32 L. T., N. S. S25. 
 
 («) IG & 17 Vict. 
 Appendix. 
 (o) Ibid. s. 2. 
 
 119, s. 1, 
 
BETTIxXG HOUSES. 4o3 
 
 Any Owner or Occupier, or person unmg any House, Penalty for 
 &c. or other Place, opening, keeping or using the same ^^ing them 
 for any of the above-mentioned purposes, or being Owner poseT^ ^"^" 
 or Occupier wilfully permitting the same to be opened, 
 kept or used for any such purposes, or any person managing 
 or assisting in conducting the business of any Houses, 
 &c. or Place opened, kept or used for any such jiurposes, 
 is on summary conviction before two Justices of the 
 Peace {p) liable to a penalty not exceeding 100/., and 
 payment of costs, or to imprisonment not exceeding six 
 calendar months {q). 
 
 Any Owner or Occupier, or person acting on his behalf, Penalty for 
 or managing or assisting in conducting the business of any receiving 
 House, &c. or Place opened, kept or used for any of the ^^"^^^i ^*^- 
 
 , ' . Tin- on certain 
 
 above-mentioned purposes, who shall receive any money or conditions, 
 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 jierson 
 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 {j)) liable to a Penalty not exceeding 
 50/., and payment of costs, or to imprisonment not exceed- 
 ing three calendar months (r). 
 
 Any money or valuable thing received by any such person Money, &c. 
 as a Deposit on any Bet, or as or for the consideration for ^° received 
 any such agreement, &c. is to be deemed to have been re- ^^ercd from 
 ceived for the use of the person from whom it was received, the holder. 
 and may be recovered with full costs in any Court of com- 
 petent Jurisdiction {s). 
 
 The Act is not to extend to the Holder of any " Stakes Act does not 
 or Deposit to be paid to the "Winner of any Race or lawful ^^^^^ .*° 
 Sport, Grame or Exercise," or to be paid " to the Owner of j^^ce &c. 
 any Horse engaged in any Race" (/) ; as where, for in- 
 stance, the Owner of the Second Horse is entitled to receive 
 back his Stake. 
 
 Any person exhibiting or publishing, or causing to be Penalty for 
 
 [p) Or a Police Magistrate within Appendix, 
 
 the Metropolitan Police District, {r) Ibid. s. 4. 
 
 2 & 3 Vict. 0. 71, 8. U. (.5) Ibid. s. 5. 
 
 (■/) 16 & 17 Vict. c. 110, s. 3, {t) Ibid. s. 6. 
 
454 
 
 BETTING HOUSES. 
 
 advertisiug, 
 &c. 
 
 Provisions of 
 Betting Act, 
 1874, as to 
 advertisins:. 
 
 Power to 
 search sus- 
 pected 
 Houses. 
 
 exhibited or publislied, any Placard, Advertisement, &c. 
 making it to aj^pear that any House, &e. 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 AVagers 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 (ii) liable to a 
 Penalty not exceeding oO/., and payment of costs, or to 
 imprisonment not exceeding two calendar months (,r) . 
 
 And section 3 of the Betting Act, 1874 (37 Yict. c. 15), 
 further provides that where any letter, circular, telegram, 
 placard, handbill, card, or advertisement is sent, exhibited, 
 or published — (1) whereby it is made to appear that any 
 person, either in the United Kingdom or elsewhere, will, 
 on application, give information or advice for the purjDOse 
 of or with respect to any such Bet or Wager, or any such 
 event or contingency as is mentioned in the principal Act, 
 or will make on behalf of any other person any such Bet 
 or Wager as is mentioned in the principal Act ; or (2) with 
 intent to induce any person to apply to any house, office, 
 room or place, or to any person, with the view of obtaining 
 information or advice for the purpose of any such Bet or 
 Wager with respect to any such event or contingency as is 
 mentioned in the principal Act ; or (3) inviting any per- 
 son to make or take any share in or in connection with any 
 such Bet or Wager — every person sending, &c., or causing 
 the same to be sent, &c., shall be subject to the penalties 
 provided as above in the 7th section of the principal Act 
 with respect to offences under that section. 
 
 A Justice of the Peace, upon complaint made on oath, may 
 authorize the search of any suspected House or Place by 
 special warrant 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 Pacing or Betting (//). But the 
 warrant and arrest above provided for do not dispense with 
 the necessity of a regular information and summons giving 
 
 («) Or a Police Magistrate within 
 the Metropolitan Police District, 
 2 & 3 Vict. c. 71, s. 14. 
 
 (.r) 16 & 17 Vict. 
 Appendix. 
 
 (y) Ibid. s. 11. 
 
 c. 119, s. 7, 
 
KETTING HOUSES. 455 
 
 the defendaut notice of the charges made against him ; 
 and the want of such information and summons will 
 render the proceedings on the hearing invalid (s) . The 
 information need not, however, be laid before two Justices 
 — one is sufficient (a). 
 
 Within the Metropolitan Police District, and the Dublin Power of 
 Metropolitan Police District, a Commissioner of Police Commission- 
 
 Grs 01 JrOllCG 
 
 may authorize any Superintendent of Police, accompanied 
 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 {h). 
 
 Penalties and costs may be levied by distress (c) . Half The levy and 
 of ever}' pecuniary penalty is to be paid to the Informer, ap^cation 
 and the remaining half to be applied in aid of the Poor 
 Rate of the parish or extra-parochial place where the 
 offence was committed (d). 
 
 In ease a person who has laid any complaint or informa- Where party 
 tion do not appear at the time at which the defendant may neglects to 
 have been summoned to appear, or on the adjournment of 
 the summons, or neglect to prosecute, any Justices having 
 authority to adjudicate may authorize some other person 
 to proceed on such summons, or take out a fresh one, as if 
 the previous summons had not been granted (e) . 
 
 An Appeal is given to Quarter Sessions (/), and no No objection 
 objection is to be allowed to the Information or Convic- allowed on 
 tion on matter of form (g). Thus, in a case in which the form, 
 information charged the defendant with having " on the 
 5th of October, and on divers other days and times 
 between the said 5th of October, and the laying the in- 
 formation (Nov. 16), being then the occupier of a certain 
 House in the said city knowingly and wilfully kept and 
 used the same for the purpose of his betting with persons 
 resorting thereto ;" a conviction for so keeping and using 
 the house on the 8th of November was held to be good and 
 valid (/0._ 
 
 A conviction before justices under this Act is a " criminal No appeal 
 
 (z) Blake v. Beech, L. R., 1 Ex. (r) Ibid. s. 8. 
 
 D.'320 ; 45 L. J., M. C. Ill ; 24 (d) Ibid. s. 9. 
 
 L. T., N. S. 764. {c) Ibid. s. 10. 
 
 [a) Zee v. Gold, 44 J. P. 395— (/) Ibid. s. 13. 
 Q. B. D. (q) Ibid. s. 14. 
 
 (b) 16 & 17 Vict. c. 119, 88. 12, (h) OhIoj v. Gee, 30 L. J., M. C. 
 18, Appendix. 222. 
 
456 
 
 HETTTNG HOUSES. 
 
 from High 
 Court. 
 
 The remaiu- 
 ing Provi- 
 sions. 
 
 Extension to 
 Scotland. 
 
 cause or matter " within sect. 47 of tlie Judicature Act, 
 1873, and the Court of Appeal has, therefore, no juris- 
 diction to hear an Appeal from a judgment of the High 
 Court quashing the Conviction on a case stated by Justices(j). 
 
 In this Act the certiorari is taken away (/.■), and a dis- 
 tress is not to he unlawful for want of form (/). In any 
 action amends may be tendered {m), but one month's 
 Notice of Action must be given, and it must be brought 
 within three months of the doing of the alleged damages (w) . 
 This Act, which came into operation on the 1st of Decem- 
 ber, 1853 (o), did not extend to Scotland {p). 
 
 But now by s. 4 of the Act of 1874 (37 Vict. c. 15), the 
 Act is extended to Scotland with the following modifi- 
 cations and provisions: — (1) The term "distress" shall 
 mean poinding and sale. The term " misdemeanor " 
 shall mean a crime and oifence. (2) All offences or 
 penalties under the Acts shall be prosecuted and recovered 
 before the Sheriff of the County, or his substitute in the 
 Sheriff Court, at the instance of the Prociu'ator Fiscal, or of 
 anyprivatepersoUjUnderthe provisions of the Summary Pro- 
 cedure Act, 1864, and all the jurisdictions, powers, and au- 
 thorities necessary for the purposes of this section are hereby 
 conferred on the Sheriffs and their substitutes. (3) Every 
 pecuniary penalty which is adjudged to be paid under 
 either of the Acts is to be paid to the Clerk of the Court 
 and by him accounted for and paid to the Queen's and 
 Lord Treasurer's Pemembrancer on behalf of Her Majesty. 
 (4) The 13th and 14th sections of the principal Act are 
 not to apply to Scotland, but any person who is convicted 
 imder either of the Acts may appeal against such con- 
 viction to the High Court of Justiciary, in the manner pre- 
 scribed by such of the provisions of the 20 Geo. 2, c. 43, 
 and any Acts amending the same, as relate to Appeals in 
 matters criminal, and by and under the rules, limitations, 
 convictions and restrictions contained in the said provisions. 
 
 GAMING HOUSES. 
 
 A common 
 
 Gp.ming 
 
 House. 
 
 All common Gaming Houses are nuisances in the eye 
 of the law, not only because they are great temptations to 
 
 (i) Blal-ev. Beech, L. E,., 2 Ex. 
 D. 335; 36 L. T., N. S. 723. 
 
 (/,:) IG & 17 Vict. c. 119, s. 14, 
 Appendix. 
 
 (/) Ibid. s. 15. 
 
 (w) Ibid. s. 16. 
 
 (h) Ibid. s. 17. And see Blake 
 V. Beech, L. E., 1 Ex. D. 320; 45 L. 
 J.,M. C. Ill; 34L. T.,N.S. 764. 
 
 (o) IG & 17 Vict. c. 119, 8. 19, 
 Appendix. 
 
 (;;) Ibid. s. 20. Repealed bv 
 37 Vict. c. 15, s. 4. 
 
GAMING HOUSES. 457 
 
 idleness, but because they are apt to draw together great 
 numbers of disorderly persons ; they promote cheating and 
 other corrupt practices, and incite to idleness and avari- 
 cious ways of gaining property (q). 
 
 The Keeper of a common Graming House is indictable indictment 
 and punishable as for a misdemeanor with fine or imprison- ^or keeping 
 ment, or both ; and his wife may be joined with him, or °^^' 
 they may be indicted severally (q). 
 
 The Indictment would seem to be good if it merely Charge in the 
 charges the defendant with keeping a common Graming ludictmeut. 
 House (r) ; as where the person is indicted for the offence 
 of keeping a House where people assembled to play Rouge 
 et Noir («). 
 
 And as it is an Indictment for a public Nuisance, and Any person 
 not for any matter in the nature of a private injury, any ^^J s^ on 
 person may go on with it even against the consent of the 
 original prosecutor, if he has discontinued it {f ) . 
 
 Under 25 Geo. 2, c. 36 {u), provision is made for the Statutory 
 indictment of " any person who shall act or behave him rrovisions for 
 
 lip X • i i.1 1 • an Indict - 
 
 or lierselr as master or mistress, or as the person havmg ment. 
 the care, government or management of any Gaming 
 House, &c." 
 
 To encourage prosecutions for keeping Gaming Houses, Notice by 
 &c., two inhabitants of any Parish or Place may give twomhabit- 
 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 recogni- 
 zance in the sum of 20/. to give evidence, and the constable 
 into a recognizance in the sum of 30/. to prosecute at the 
 next General or Quarter Sessions or Assizes (^r). 
 
 After the constable has entered into such recognizance Binding over 
 to prosecute, the Justice is to make out his warrant to ^^® v^^^J ^c- 
 bring the accused person before him to be bound over to 
 appear at the General or Quarter Sessions or Assizes, 
 there to answer such bill or indictment (//) as may then be 
 found for the offence. And the Justice may, in his dis- 
 
 {/]) Hawk. c. 32, tit. Common («■) Ibid. 
 
 Nuisances, 66; Hex v. Dixon, 10 {t) Rex v. TToofZ, 3 B. & Ad. 657. 
 
 Mod. 330 ; Rex v. Mason, Leach, [n) 'lb Geo. 2, c. 36, ss. 6, 8. 
 
 C. C. 548 ; Rex v. Rogier, 1 B. &C. (.r) Ibid. s. 5. 
 
 272; <S. C. 2 D. & R. 431. (//) The certiorari in all cases 
 
 (>•) Rex V. Rogier, 1 B. & C. 272 ; is taken away by s. 10. See Rey. 
 
 S. C, 2 D. & R. 431. V. Sanders, 9 Q. B. 235. 
 
458 
 
 GAlSfING HOUSES. 
 
 Duty of 
 
 Overseers of 
 the poor. 
 
 Penalty 
 where Con- 
 stable neg- 
 lects his 
 duty. 
 
 Setting up 
 or playing at 
 Hazard, &c. 
 
 Sufficient 
 evidence that 
 Hazard has 
 been played. 
 
 Rent of a 
 
 Gaming 
 
 House. 
 
 A subscrip- 
 tion Club. 
 
 cretion, take security for such person's good beliaviour in 
 the meantime (;:). 
 
 The Overseers of the Poor of the parish or place are to 
 jiay the constable the reasonable expenses of prosecution, 
 and on conviction 10/. to each of the two inhabitants, on 
 penalty of forfeiting double the sum (r/). 
 
 Any constable who may neglect or refuse upon such 
 Notice to go before any Justice of the Peace, or to enter 
 into such recognizance, or may be wilfully negligent in 
 carrying on such prosecution, is for every offence to forfeit 
 20/. to each inhabitant giving such Notice (b). 
 
 Any person setting up the Grames of the Ace of Hearts, 
 Pharaoh, Basset or Ilazant, is liable on summary conviction 
 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/. (c). 
 
 On an information before two Magistrates under this 
 Statute (d) " for setting up, maintaining and keeping a 
 certain Grame, to be determined by the chance of Dice, 
 called Plazard," 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 plaj^ed (e) . 
 
 If a person knowingly lets a House for the purpose of 
 its being used as a Gaming House, he cannot recover the 
 rent. This defence w^as set up in the case of Parsey v. 
 Edmonds (./), but as it was not proved the Jury found a 
 verdict for the plaintiff. 
 
 An establishment which is carried on as an ordinary 
 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 supper, which is provided 
 gratuitously for the members by the proprietor (r/). But 
 
 {z) 25 Geo. 2, c. 36, s. 6. 
 
 (ff) Ibid. s. 5. 
 
 {b) Ibid. s. 7. 
 
 \c) 12 Geo. 2, 0. 28, ss. 2, 3, 
 Appendix ; M'Xinnell v. Robinson, 
 3 M. & W. 438. 
 
 {fl) 12 Geo. 2, c. 28, s. 2, Ap- 
 pendix. 
 
 {e) Rex V. Liston, 5 T. R. 390. 
 
 (/) Parsey v. Edmonds, before 
 Mr. Baron Martin, Ex. N. P. Jan. 
 20, 1853. 
 
 {g) Crockford v. Lord Maidstone, 
 8 L. T. 217; and see S. C, Ap- 
 pendix. 
 
GAMING HOUSES. 459 
 
 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 {//). 
 
 Under 8 & 9 Vict. c. 109, a common Gaming House, V/hat is a 
 " contrary to law," may be a place either where people q!*^^"^ 
 play an unlawful Game against a Bank, or where a lawful House,°uii- 
 Game is so arranged that the chances are in favour of the der 8 & 9 
 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 subscribers 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 allegation in any indictment 
 or information, 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 players exclusively of the others, 
 or that the chances of any Game plaj^ed 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 whom the other players stake, play or 
 bet"(y). 
 
 In every case, except within the Metropolitan Police Power of 
 District, in which the Justices of Peace in every Shire, J^^^tices. 
 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 {k) ; 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 any Constable, toge- 
 ther with necessary assistance, to make an entry in the 
 same manner as might have been done by such Justices, 
 Mayors, &c. in person. Permission is also given to use 
 force if necessary in making such entry, either by breaking 
 open doors or otherwise, and authority is given to arrest, 
 
 {h) See note {g), ante. Pleading. As to other evidence of 
 
 (') 8 & 9 Vict. c. 109, s. 2, Ap- a house being a common Gaming 
 
 pendix. House, see post, pp. 461, 462. 
 
 {j) Ibid. For form of indict- " (/,) 33 Hen. 8, c. 9, s. 14, Ap- 
 
 ment, see Archbold's Criminal pendix. 
 
460 
 
 GAMING HOUSES. 
 
 In the Me- 
 tropolitan 
 District. 
 
 Penalties on 
 
 Gramiug 
 
 House 
 
 Keepers 
 
 under 
 
 8 & 9 Vict. 
 
 c. 109. 
 
 searcli aud bring before a Justice of the Peace both " the 
 keepers and the persons resorting and playing there" (/), 
 to be dealt with according to law {in). 
 
 Within the Metropolitan District, if any Superin- 
 tendent belonging to the Metropolitan Police Force report 
 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 Metropolitan 
 Police District is kept or used as a common Grambling 
 Plouse ; either of these Commissioners, by theii* order in 
 writing, 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 Graming, and all 
 Monies and Securities for money found in such house or 
 premises (»). He may also search all parts of the house or 
 premises where he shall suspect that Tables or Instruments 
 of Graming are concealed, as well as all persons there found, 
 and seize all Tables and Instruments of Graming he may 
 happen to find (o). 
 
 Under 8 & 9 Vict. c. 109, the owner or keeper, and 
 every person having the care or management of such 
 Graming 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 3'i Hen. 8, c. 9, to pay a fine of 
 forty shillings for each day (p), and to be imprisoned till 
 he shall have found sureties to abstain from such practices 
 for the future (q), is liable to such an additional penalty of 
 not more than 100/. as might 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 with- 
 out hard labour. On non-paj^ment of any penalty so ad- 
 judged, and of the reasonable costs and charges attending 
 the conviction, one of the convicting Justices may, by his 
 warrant, authorize the same to be levied by distress and 
 sale of the goods and chattels of the offender (/■). 
 
 (0 8 & 9 Vict. c. 109, s. 3, Ap- 
 pendix. See post, p. 4G2. 
 (m) 33 Hen. 8, c. 9, s. 14. 
 {») 8 & 9 Vict. c. 109, s. 6. 
 
 (o) Ibid. s. 7. 
 (p) 33 Hen. 8, c. 9, s. 11. 
 (?) 8 & 9 Vict. c. 109, s. 4. 
 ()•) Ibid. See post, p. 4C2. 
 
GAMING HOUSES. 4G1 
 
 The penalty under 33 Hen. 8, c. 9, for using and Penalty for 
 haunting and playing in Graming Houses, was six shil- playmg. 
 lings and eightpence for each time of so doing (s), and 
 such persons when taken might be imprisoned till they 
 gave security to abstain from such practices for the 
 future (/). 
 
 And where any Cards, Dice, Balls, Counters, Tables Evidence of 
 or other Instruments of Gaming used in playing any un- ^^^^^S- 
 lawful game are so found, it is evidence, until the contrary 
 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 was 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 
 by virtue of the warrant or order, may direct all such 
 Tables and Instruments of Gaming to be forthwith de- 
 stroyed (u). 
 
 But the difficulty of obtaining such evidence of Gaming Difficulty of 
 was so great, that this portion of the Act proved to be obtaining 
 practically a dead letter ; for all Gaming Houses were 
 found to be provided with the means of secretly making 
 away with the Instruments of Gaming on any alarm being 
 given ; and the penalties inflicted were insufficient to 
 correct the evil. 
 
 Accordingly to remedy these defects in the operation 17 & 18 Vict, 
 of the 8 & 9 Vict. c. 109, and the other Acts for the ^- ^^■ 
 prevention of unlawful Gaming, a supplementary Act was 
 passed in the year 1854, intituled " An Act for the Sup- 
 pression of Gaming Houses" (x), which has been com- 
 pletely successful in accomplishing that object. It recites 
 that " the keepers of common Gaming Houses contrive, 
 by fortifying the entrances to such houses, or by other 
 means, to keep out the officers authorized to enter the 
 same until the Instruments of Gaming have been re- 
 moved or destroyed, so that no sufficient evidence can be 
 obtained to convict the offenders, who are thereby en- 
 couraged to persist in the Violation of the Law ; and " 
 that "it is expedient that the Law shall be made more 
 efficient for the Suppression of Gaming Houses." 
 
 With this object persons may be summarily convicted Persons sum- 
 
 (a) 33 Hen. 8, c. 9, s. 12. See {t) Ibid. s. 14. 
 
 post, p. 462, as to the penalties, {/<) 8 & 9 Vict. c. 109, s. 8. 
 
 which may be adjudged under 17 (') 17 & ISVict. c. 38, Appendix.' 
 k 18 Vict. 0. 38. 
 
462 
 
 GAMING HOUSES. 
 
 marily con- 
 victed of 
 obstructing 
 Officers. 
 
 Persons 
 giving false 
 Names or 
 Addresses. 
 
 Owner or 
 Occupier may 
 be fined 500/. 
 or impri- 
 soned. 
 
 Persons ap- 
 prehended 
 may be made 
 Witnesses. 
 
 Penalties 
 and Costs. 
 
 under this Act before two Justices of the Peace of thus 
 obstructing the officers, and, in the discretion of the 
 Justices, may be fined a sum of money not exceeding 
 100/., or be imprisoned, with or without hard labour, 
 for any period not exceeding six calendar months (y). 
 And the mere fact of obstructing the officers is to be 
 evidence of the House being a common Gaming House (z). 
 
 Persons found there, and giving false names or ad- 
 dresses, or refusing to give their names and addresses, may, 
 iipon summary conviction, be fined 50/., or imprisoned for 
 one month {a). 
 
 The Owner or Occiipier, or any person " having the 
 use of any House, Room, or Place, who shall open, keep 
 or use the same for the purpose of unlawful gaming being 
 carried on therein, and any person, who being the Owner 
 or Occupier of any House or Poom, shall knowingly and 
 wilfully permit the same to be opened, kept or used by 
 any other person for the purpose aforesaid, any person 
 having the care or management of or in any manner 
 assisting in conducting the business of any House, Room 
 or Place opened, kept or used for the purpose aforesaid, 
 and any person who shall advance or furnish money for 
 the purpose of gaming with persons frequenting such 
 House, Room or Place," may be summarily convicted 
 before two Justices of the Peace, and be adjudged to pay 
 any sum not exceeding 500/. and costs, or may be im- 
 prisoned, with or without hard labour, for twelve calendar 
 months {h). 
 
 Under this Act the Justices of the Peace, before whom 
 persons found in a Room or Place of this description shall 
 be brought, may require any of the persons apprehended 
 to be sworn and to give evidence under a penalty for 
 refusal (r) ; but persons making a full discovery may be 
 freed from all penalties (r/). 
 
 The Penalties and Costs inflicted under this Act may 
 be levied by distress (c), whicli shall not be unlawful for 
 want of form (/). And one-half of each Penalty shall be 
 applied in aid of the Poor Rate of the Parish in which 
 the offence shall have been committed, and the other half 
 shall be paid to the person laying the information ( g). 
 
 (//) 17 & 18 Vict. c. 38, s. 1, Ap- (r) Ibid. s. 5. 
 
 pendix. (d) Ibid. s. 6. 
 
 (=) Ibid. s. 2. {e) Ibid. s. 7. 
 
 (a) Ibid. s. 3. (A) Ibid. s. 12. 
 
 [b) Ibid. s. 4. {(/) Ibid. s. 8. 
 
GAMING HOUSES. 463 
 
 On the neglect of the person laying the information to On neglect 
 prosecute the summons, the Justices may authorize any ^° P^®f*^*°' 
 other person to proceed thereon, or to lay a fresh informa- gg^ ^^y ^g " 
 
 tion [h). authorized to 
 
 An appeal is given to Quarter Sessions (?"), but no <io «"• 
 objection is to be allowed to matters of form at the hearing Remaining 
 of that appeal (/.•). And the judgment of the Justices thus P^^'^^®^'^^^'^- 
 given is not removable by certiorari (/). 
 
 By 8 & 9 Vict. c. 109, s. 10, a Licence is required for Billiards, 
 every House (in), Room or Place where a public Billiard Bagatelle, &c. 
 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 a Yictualler's 
 licence (»). 
 
 Justices of the Peace are authorized at their general Regulations 
 annual licensing meeting to grant Billiard Licences to ^.|,'!'^"'^°§' 
 such persons as, in their discretion, they deem fit and Licences, 
 proper to keep such public Billiard tables, on payment of 
 six shillings, and such licences are to continue a year (o). 
 And no appeal lies against a refusal by Justices to grant 
 a Billiard Licence (7;). 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-compli- 
 tions may be proceeded against as the keeper of a common ^nce with 
 Gaming House, and in addition to the penalty to which ^^^^^ ^^^" ^" 
 he is liable for that offence, he may be fined any sum the 
 
 (/t) 17 & 18 Vict. 0. 38, s. 9, Ap- the Superior Coiu-ts or of Her 
 
 pendix. By the 22 & 23 Vict. c. 17, Majesty's Attorney- General or 
 
 s. 1, no bill of indictment for keep- Solicitor- General, 
 
 ing a Gambling House (amongst (i) 17 & 18 Vict. c. 38, s. 10, 
 
 other offences) shall be presented Appendix, 
 
 to or be found by any Grand Juiy, (/.) Ibid. s. 11. 
 
 unless the Prosecutor or other per- [1) Ibid. 
 
 son presenting such indictment has {iii) If a Billiard Table stands in 
 
 been bound by recognizance to a House, and the House should, in 
 
 prosecute or give evidence against respect of such Tablo, let at a higher 
 
 the person accused of such offence, sum, it is rateable, while the Table 
 
 or unless the person accused has continues there and it is so let at a 
 
 been committed to or detained in higher rate ; perWilles, J., Hex v. 
 
 custody, or has been bound by re- St. Nicholas, Gloucester, cited in Reg. 
 
 cognizance to appear in answer v. South Western Eailwaij Co., 1 Q. 
 
 to an indictment to be preferred B. 581. 
 
 against him for such offence, or {») 8 & 9 Vict. c. 109, s. 11, 
 
 unless such indictment for such Appendix, 
 
 offence, if charged to have been (o) Ibid. s. 10. 
 
 committed in England, be preferred {p) Ex parte Chamberlaui, 8 E. & 
 
 by the direction or with the consent B. G44. 
 
 in writing of a .Judge of one of {q) 8 & 9 Vict. c. 109, s. 11. 
 
461 
 
 GAMING HOUSES. 
 
 Offences 
 against the 
 tenor of the 
 Licence. 
 
 When Bil- 
 liard playing 
 is not al- 
 lowed. 
 
 Constables 
 may visit 
 licensed 
 Houses. 
 
 Justices may fix upon of not more tlian 10/. fgr 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 penalty ; but no person 
 summarily convicted can be indicted 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 Creo. 4, c. 61, 
 and all the provisions of that Act with respect to con- 
 victions, 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, Gfood 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 opened for the sale of liquors ; and during the 
 hours that play is prohibited, every licensed house and 
 every Billiard room in every licensed Victualler's must be 
 closed {t). 
 
 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 (»). 
 
 {>■) 8 & 9 Vict. c. 109, s. 11, {t) Ibid. s. 
 
 Appendix. («) 8 & 9 
 
 (i) Ibid. s. 12. Eut see 35 & 3G Appendix. 
 Vict. c. 94, s. 75. 
 
 13. 
 
 Vict. 
 
 c. 109, s. 14, 
 
APPENDIX. 
 
 PART I. 
 
 UNEEPOETED CASES. 
 
 PAGE 
 
 Fettinffall v. Fettingall. — Annuity bequeathed to keep a Favourite 
 
 Mare 465 
 
 Alexander and another v. La'ulley and others. — Rule of the Road 467 
 
 Simpson V. Potts. — Sidebones 467 
 
 Jlall V. i2o/7e/'so«.— Laininitis 468 
 
 Mcfjina V. CmIc. — Furious Riding 471 
 
 Matthews v. P«/-Z,rr.— Navicular Disease , 471 
 
 Atkinson v. Horridge. — Thick- wind 472 
 
 Croekford v. Lord Maidstone. — A Common Gaming House 473 
 
 Smart v. Allison. — Alteration of Structure in the Feet 474 
 
 Hjjde V. Davis. — Disease of the Lungs 477 
 
 Buckingham v. Rogers. — Disease of the Lungs 479 
 
 Elcin V. Chapman. — Negligent Driving in the Dark 479 
 
 Bouden v. Sherman. — Negligent Driving at a Crossing 480 
 
 Hadland v. Price. — A " Selling Race" 481 
 
 Pereival v. Dudgeon. — Horse damaged by Negligent Driving 483 
 
 ♦— 
 
 Fettingall v. Fettingall. 
 
 Before Vice- Chancellor Sir J. L. Knight Bruce, February 12th, 
 
 1847. 
 This was a petition presented by five reversionary legatees of a Annuity be- 
 fund wliieli it was souglit to have distributed among them, queathed to 
 security being given to provide for the object of the testator's -^^^ avour- 
 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 exj)ended for 
 the keep of his favourite black Mare, which was to be "pro- 
 perly and comfortably kept in some park or paddock," to 
 have her ' ' shoes taken oif , and never to be ridden or har- 
 nessed." "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 removable at his will, and at 
 the Mare's death all payments to cease." The fund had been 
 carried to an account called " The Black Mare's Account." 
 
 0. H H 
 
466 APPENDIX. 
 
 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 Mare had been placed 
 in Holland Park, Kensington, and it was stated that the exe- 
 cutor had fully complied, not only with the letter but with 
 the spirit of the testator's will, and expended 30^. or 401. 
 annually in this way. Three of the reversioners vi'erefemnies 
 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 fulfilment of the testator's wishes. 
 
 The ViCE-CiiANCELLOB 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 Coiu't allow the executor to re- 
 ceive the annuity ? The Court would find somebody else to 
 take proper care of the animal." 
 
 Mr. IViffram, 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 YicE-CnANCELLOE said, "Is it not the duty of this 
 Court to fulfil the lawful intention of the testator? This 
 animal, 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 securit}' 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 carrying out the testator's wishes. He ultimately referred 
 it to the Master to approve of a security, directing that the 
 case should come again before the Court for its sanction of 
 such security. 
 
UNREPORTED CASES. 467 
 
 Alexander and iys^oinEii v. Laidley and others. 
 Before Mr. Baron Alderson, Carlisle Spring Assizes, 1847. 
 Grainger, Temple and Perronet Thompson for the plaintiffs. 
 Atherton and Vance for the defendants. 
 
 This was an action on the Case against the defendants for Rule of the 
 running down the ship of the plaintiffs. Eoad. 
 
 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 wrong 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. Barofi 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 
 rescission 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 pro- 
 duced by Sidehones, which is in fact Ossif cation of the Carti- 
 lages («), and is an unsoundness, whether it produce lameness 
 or not. If the Mare had absolute rest for any length of time, 
 the lameness 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. 
 
 It was contended for the defendant that there was no con- 
 dition in the AVarranty authorizing a return, and that the 
 defendant had taken her back to sell her on behalf of the 
 plaintiff. 
 
 EoLFE, B., told the Jury, "that they must be satisfied, 
 either that the contract was rescinded, or that there was a 
 
 («) O.«8ifirntion of the CartilagOH, ante. 
 11 H '1 
 
468 APPENDIX. 
 
 condition in the Warranty authorizing a return of the Horse 
 if it turned out unsound, and that in either of these cases 
 Monetj had and received "woidd lie." The Jury returned a 
 verdict for the plaintiff. 
 
 Hall v. Rogerson. 
 Before Mr. Baro7i Alderson, Neivcastle Sj)ring Assizes, 1847. 
 
 Knoivles, Q.C., and Mulcuster, for the plaintiff. 
 
 Granger and Otter for the defendant. 
 Laminitis. This was an action of Assumpsit on a breach of the War- 
 
 ranty of a Horse. 
 
 Pleas, 1st. Non Assumpsit. 
 
 2nd. Traverse of the unsoundness. 
 
 The plaintiff bought a Horse of the defendant at the New- 
 castle August Fair, 184G, 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 tahen back by the plaintiff" to New- 
 castle, and sold by auction in December. Tlie Horse, before 
 the first sale, had been twice burned for Sandcrack {b), which 
 had been removed, and he hud 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 j ustified 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 sJiort and crippled iti 
 his action, and he then had Cracked heels {d). A man was in- 
 structed to poultice the forelegs, the heels were very tedious, 
 and an ointment was applied. The Horse never got better of 
 the crijipled 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 groimd first, he went lame at that j)eriod, and was not 
 a sound Horse. 
 
 {b) Sandcrack, ante. Feet, ante. 
 
 [c) See Laminitis and Pumiced {d) See Grease, ante. 
 
UNREPORTED CASIES. 469 
 
 The witness's opinion was that he had Laminitis (e), or 
 inflammation of the Lamince of the feet, namely, of the con- 
 necting medium between the Coffin-bone and the interior of 
 the foot, wliich is admitted to be the supporter of the foot, 
 there being numerous fleshy plates. That injlammation of the 
 foot {/) includes many other diseases, and produces an alte- 
 ration 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 {(/), and must have lasted some time, 
 several months, most jorobably in August ; it generally pro- 
 duces lameness, 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 dift'erent." He then stated that after an inflammation 
 of the Lamince, the feet are never thoroughly restored. Con- 
 vexity of sole (e) comes on some 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 important organ is known to settle in the feet. 
 
 Mr. Pluyes, a Veterinary 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 his fore feet freely at that 
 time ; he thought it proceeded from Cracked heels (A). 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 wei'e vei-y acute. 
 
 Mr. Bramley, a Horse-dealer and Publican at Nottingham, 
 bought the Horse of the plaintiff for 5bl. at the Newcastle 
 October Fair warranted sound. The morning after purchase, 
 he came out lame at Ferry Hill, about twenty miles off ; it was 
 supposed to proceed from Cracked heels (A). (Aldekson, B. : 
 That would be an unsoundness.) When the Horse arrived 
 at Nottingham he was still lame, and the witness had him 
 examined by Mr. Taylor, a Veterinary Surgeon, and in a 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 
 
 (e) See Laminitis and Pumiued [g) See Founder, ante. 
 
 Feet, ante. (A) See Grease, ante. 
 
 (J) See Contraction, ante. 
 
470 APPENDIX. 
 
 never had inflammation before sale, but only a Sandcrack {k), 
 wbich had been burnt and cured. It was also proved that 
 the Horse, when in the plaintiff's possession, had been hard 
 di-iven 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 
 unsoimd. The feet had all the appearance of Laminitis il) 
 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 of Laminitis {I). 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. 
 (Aldersox, B. : It must be ordinary ivork, 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, Aldersox, B., said to the Jury — "The 
 plaintiff must make out the Horse xmsound 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 its 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 
 jilaintiff, 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/. 19s., the cost of bringing him back from Nottingham." 
 The Jury found a verdict for the defendant. 
 
 (A) Sandcrack, ante. 
 
 [1) See Laminitis and Pumiced Feet, ante. 
 
UJJKErORTEl) CASES. 471 
 
 Eegixa V. Cook. 
 Before Mr. Baron Alderson, Liverpool Spring Assizes, 1847. 
 
 The Prisoner was indicted for Manslaughter in having Furious 
 furiously ridden over and killed a person on the road. riding. 
 
 ALDEKSoisr, B., in summing' np, said to the Jury — " The 
 Prisoner is indicted iov 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 person ; 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 
 Mati sla ugh ter.^ ' 
 
 "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 8th, 
 
 1847. 
 
 Godson, Q.C., and Cripps, for the plaintiff. 
 
 Whatelg, Q.C., and Cooke, for the defendant. 
 
 This was an action on the "Warranty of a Horse. It Navicular 
 appeared that in May, 1846, the plaintiff bought at Stow disease. 
 Pair of the 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, who pronounced it to have Navicular 
 disease {?n) 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 attend- 
 ing Cirencester Market. 
 
 For the defendant witnesses were called to prove that the 
 Horse was sound, and could therefore never have had the 
 Navicular disease (tn), as it is incurable. It transpired during 
 
 {>n) Navicular Joint Disease, ante. 
 
472 APPENDIX. 
 
 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 Sprint/ Assizes, A^jril 9th, 
 
 1847. 
 
 Toivnsend and Egerton for the plaintiff. 
 Chilton, Q.C., and Welsby, for the defendant. 
 
 Thick-wind. This was an action of Assumpsit on the Warranty of a 
 
 Horse. 
 
 Pleas, 1st. No7i 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, bvit 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 the mucous memhrane {ii), which was in- 
 curable and an unsoundness, although it would not prevent 
 the Horse being hunted. The plaintiff then wrote to the 
 defendant 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 comjietent surgeon and a 
 good sportsman, who said that no specific unsoundness had 
 been alleged. He oft'ered 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 j)assages, 
 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 56/., which 
 sum was reduced by expenses to 48/., and it was for the dif- 
 
 {») See Thick--niud. ante. (o) Ibid. 
 
UNREPORTED CASES. 473 
 
 ference between tliis sum and the purchase-money that the 
 action was brought. 
 
 The defendant called several Veterinary Surgeons, but the 
 Jury found for the plaintiff lOll. 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 Thich- 
 xvindedi^p), was not unsound; as the celebrated Horse Eclipse 
 was known to be Thick-toincled { p), though the Veterinary Sur- 
 geons called by the plaintiff professed themselves ignorant of 
 such having been the fact. 
 
 Lord Denm.uv, C.J. — " We will see the learned Judge on 
 the subject." 
 
 Crockfokd v. Lord Maidstoite. 
 
 Before the Court of Exchequer {Sittings in Banco), May 1th, 
 
 1847. 
 
 Humfrexj 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 ^ammg 
 the 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 Street, 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 
 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. H they decided that 
 it was not a Common Gaming House, then they would give a 
 verdict for the plaintiff, j)rovided 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. 
 
 House. 
 
 {p) See Thick -wind, ante. 
 
474 APPENDIX. 
 
 It was contended for the defendant, that as Hazard, which 
 is an illegal Game {q), was played in the House, it was there- 
 fore a Common Gaming House. 
 
 The Court, however, seemed to be of opinion, that as there 
 v\-as no evidence that the defendant was admitted into the 
 Club for 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 witlKJut any formal decision 
 on the subject. 
 
 S^JAKT V. Allisox. 
 
 Before Lord Chief Justice Wilde, Guildhall, December 17th, 
 
 1847. 
 Cockhurn, Q.C., James and Branuoell, for the plaintiff. 
 J\noioles, Q.C., and Addison, for the defendant. 
 Alteration of This was an action brought to recover damages for the 
 sj^ructure in 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 wei-e both 
 Horsedealers, the former residing at Cricklade, in AViltshire, 
 and the latter near Darlington. On the 22nd of September, 
 1846, the servant of the jDlaintiff being at Howden Fair, for the 
 purpose of purchasing Horses, saw there the Black Gelding 
 in c[uestion, and, after some bargaining, bought him for 150/., 
 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 
 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 phj'sic and moderate exercise in a neighbouring 
 paddock. 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 kejit for about a month on gentle daily 
 exercise. At the end of that time the Horse, on being one 
 
 the Feet. 
 
 {q) See Hazard, ante. 
 
UNllEPORTED CASES. 475 
 
 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 plaintift', who paid back 
 to Mr. Hardy the 200/. purchase-money. On the 6th of No- 
 vember, 1846, the defendant was made aware by letter of what 
 had taken place, and called upon to receive back the Horse, 
 otherwise he would be sold by auction, and the defendant held 
 responsible for any difference in price. At first the defendant 
 did not rej)ly, 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/. I3s. 6d. net, and for the 
 diiference 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 Irom 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 Avere afi^ected 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 cover- 
 ing; 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 fii-st proved that 
 whilst on different occasions looking at the Horse, with the 
 object of purchasing him before he was sold to the plaintiff, 
 each observed 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 receive him at a place about twenty-two miles distant 
 from the plaintiff's residence, he found the Horse qiiite lame, 
 and refused to accept him ; and the residt was, that the Horse 
 
476 APPEXuix. 
 
 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 fiat-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 ]ios- 
 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 j)laintiff'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 
 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/. 65. ed. 
 
unreported cases. 477 
 
 Hyde v. Davis. 
 
 Before Mr. Justice Coleridge, Liverpool Spring Assizes, 
 March 24th, 1819. 
 Wilkins, Serjt., and Aspinall, for tlie plaintiff. 
 Martin, Q.C, and Atkinson, for the defendant. 
 
 This was an action on the Warranty of a Horse. Disease of the 
 
 The plaintiff and defendant were both Horsedealers, the Lungs, 
 plaintiff carrying on business in Liverpool, and the defend- 
 ant at Stratton-on-Harrow, in Herefordshire. 
 
 On the 23rd of August, 1848, the plaintiff purchased a 
 young Chesnut Grelding 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 Grelding ; 
 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 Sei:)tember, sold at Howden Fair, to Mr. Widdows, 
 Veterinary Surgeon, who took him to Bristol, where he died 
 on 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 
 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 hap- 
 pens in Horses ; the ordinary causes being changes of tem- 
 perature, particularly a transition from cool air to a close 
 
478 APPENDIX. 
 
 coiifiaed stable, and more especially during the prevalence 
 of particular winds. The disease is usually ascertained b}^ a 
 Cougb, 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 be- 
 come liverlike, and have tubercles and abscesses, which run 
 into one another and are two different stages. A\Tien the 
 Lungs are much diseased or hepatized, there is an interrup- 
 tion of blood and consequent enlargement of the Liver. 
 Hepatization takes place very rapidly in the Lungs, in con- 
 sequence of their extreme vascularity. It seldom happens 
 that both Lungs are equally affected. AVhen inflammation 
 has taken place sufficiently to produce hepatization, there is 
 an invariable tendency to produce tubercles and abscesses. 
 Then the disease commonly runs its coiu-se from ten days to 
 a fortnight, depending in some measure upon the treatment. 
 If he had found the Lungs hepatized Avith 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 carried 
 to excess increases inflammation of the Lungs. The func- 
 tions 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 disease 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 d-eath, but that there had been a 
 Catarrh from the time the man led him home." 
 
 Mr. Justice Colekidge 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 
 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 62/. 
 
■UNREPORTHl) CASES. 479 
 
 Buckingham v. Eogers. 
 Before Martin, B., Guildhall, Dec. \2>th, 1864. 
 
 Huddleston, Q.C., and Barnard, for the plaintiff. 
 
 //. James and Talfourd Salter for the Defendant. 
 
 This was an action on the Warranty of a Horse. Disease of the 
 
 The plaintiff, a Horsedealer, on the 2nd of Juno, 1864, Lungs, 
 purchased at Eugby Fair a grey Mare, fit for cartwork, from 
 the defendant, who was farm bailiff under Mr. Nash, the 
 manager of Lord Shrewsbury, to whom the Horse belonged. 
 A written "Warranty was given with the Mare, which was sold 
 for 29/. The plaintiff' brought her up to London, and ac- 
 cording to his case, she shortly after appeared ill, whereupon 
 he called in a farmer to doctor her. She seemed at first to 
 recover, but eventually, on the 26th of July, she died, when it 
 was discovered that her lungs, liver and spleen were most 
 extensively diseased. The plaintiff's witness swore that the 
 animal must have been greatly diseased at the period she 
 was piirchased by the plaintiff. 
 
 The defence was, that the animal had been in perfect 
 health up to the time the Warranty was given, and that the 
 disease was the effect of her being put into a hot stable and 
 fed upon stimulating food. 
 
 The Jury found a verdict for the defendant. 
 
 Elvin v. Chapman. 
 Before Lord Camphell, C. J., Norivich Spring Assizes, 1853. 
 G'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 driving in 
 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 
 appi-ised 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 vio- 
 lence as to force the cart against the Avail and project the 
 
480 APPENDIX. 
 
 plaintifl' from his seat to the road, wheu he received such in- 
 juries as " imsensed him" and rendered it necessary that he 
 should be taken to a neighbouring Chymist. From that 
 time to the present the plaintitf had continued to suffer much 
 from lameness, 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 bj^ 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 
 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 Juiy found a verdict for the plaintiff. Damages 30/. 
 
 BOWDEN V. Shermais'. 
 Before Lord Campbell, C. J., Guildhall, July 2, 1853. 
 James, Q.O., and Phinn, for the plaintiff. 
 Wilkins, Serjt., and Willes, for the defendant. 
 Negligent This was an action on the Case to recover compensation for 
 
 diiving 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 lioad, 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 
 seeing 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 Eailway 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 
 
 crossing. 
 
UNREPORTED CASES. 481 
 
 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 Avere 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 Southampton Street, which, it was suggested, had accele- 
 rated the pace of the Horse and rendered it more difficult to 
 pull up. 
 
 The Jury found a verdict for the plaintiff'. Damages 150/. 
 
 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 Ma- 
 jesty's subjects in imminent peril. Only a short time ago 
 Mr. Commissioner Phillips had met with a very similar acci- 
 dent, which was near proving fatal. It was not enough to 
 shout oiit, 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. 
 G' Mallei), 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 Kace." 
 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 
 Pochester and Chatham Paces, where a Pace was run called 
 a "Selling" Pace. 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 
 according 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. 
 
 O. II 
 
482 APPENDIX. 
 
 The question now was wliether the plaintiff or the defendant 
 ■was the purchaser. 
 
 Accordinp: 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 
 451. in his pocket, and, not wishing it to be known that he 
 was the purchaser, he borrowed 20/. 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 j)lain- 
 tift^'s evidence, the defendant, when he had thus got the 
 Horse, refused to give it up to the plaintiff, unless he would 
 pay him 51. for his trouble ; but the plaintiff refused to give 
 him more than a half-sovereign. The defendant then kept 
 the Horse. The next day the plaintil¥ again went down to 
 Chatham, and tlien 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, value at 50/., and was again sold the same day for an 
 increased price. Evidence 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 oft'er 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 wit- 
 ness 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 chec[ue for a considerable amount in his 
 j)ocket at the time, he had only 23/. 5s. in cash, and that he 
 borrowed the sum of 45/. from the plaintiff to make up the 
 amount required. 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 purchaser ; but it appeared there was a large con- 
 course 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 82/. 
 
UNREPORTED CASES. 483 
 
 Peecival v. Dudgeon. 
 
 Before Lord Chief Baron Pollock, Exchequer, N. P., 
 'December 1th, 1853. 
 
 Maccmley, Q.C., and Willes, appeared for the j^laintiff. 
 
 Keating, Q.O., and Iloncyman, for the defendant. 
 
 The phiintiff in this ease was a Horsedealer and Riding- Horse da- 
 Muster carrj'ing on business in London and Brighton, and maged by 
 this was an action to recover the value of a Horse described "eg-hgent 
 as "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 j)urchased in the previous Ajiril by the 
 plaintiff for 25^., 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 foreman 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 oppor- 
 tunity 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 struggled 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/. lOs., 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 specta- 
 tors, but was entirely contradicted by the coachman of the 
 defendant and other spectators, the effect of whoso 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 spurred him as 
 the carriage was passing. 
 
 The Jury found a verdict for the plaintiff. Damages 
 48/. 8s. 9f/., exclusive of the sum realized on the sale of the 
 Horse. 
 
 it2 
 
PART II. 
 
 The penalty 
 foi" maiute- 
 nance of a 
 house for iin- 
 hiwful srames. 
 
 The penalty 
 for resorting 
 to a house 
 of unlawful 
 games. 
 
 Magistrates 
 may repress 
 imlawful 
 games and 
 punish of- 
 fenders. 
 
 STATUTES. 
 
 33 Hexry YIII. Cap. 9. 
 
 The Bill for the Maintai)iing Artillery, and the Debarring of 
 Unlauful Games. 
 
 Sect. 11. Be it enacted, That no manner of person or per- 
 sons, of what degree, equality 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 
 unlawful 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 Avithin any such house, garden, 
 alley or other place, contrary to the form and effect of this 
 estatute, forty shillings. 
 
 12. 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 susj^ected 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 
 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 {h) ; and also that 
 
 («) Keeping a Cock-pit is within 
 this statute; Dalton, c. 40. 
 
 {b) For further provisions, see 
 2 Geo. 2, c. 28, s. 9, Appendix. 
 
STATUTES. 485 
 
 the persons there so found be in like case hound by them- Further pro- 
 selves, or else with sureties, by the discretions of the justices, visions re- 
 mayors, sheriffs, baihtfs or other head officers, no more to lati;°o hereto, 
 play, haunt or exercise from thenceforth in, at or to any of ^ 28°'s 9 
 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 an}'- handicraft or occupa- hibited to play 
 tion, husbandman, apprentice, labourer, servant at husbandry, ^* unlawful 
 journeyman or servant of artificer, mariners, fishermen, chxi'^tmas (°) 
 watermen or any serving-man, shall from the said Feast of 
 
 the Nativity 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 kno^^"ing 
 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 
 from 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 tutes made 
 for the maintenance of artillery, as touching the penalties or ^oamst im- 
 forfeitures of the same, shall be from hencefoi'th utterly void; an^ for the ' 
 and that all informations, plaints, actions or suits that shall maintenance 
 be taken or siied upon any part of this statute, shall be com- of artillery 
 menced within the year after the offence committed and done, repealed. 
 
 or otherwise no advantage or suit thereof to be taken. 
 
 18. And where any such forfeitures shall happen to be Within what 
 found within the precinct of any franchise, leet or lawday, *™^ ^^ ^"^* 
 then the lord of the same franchise, leet or lawday to have geCTited^iipon 
 the one moiety thereof, and the other moiety thereof to any of this statute 
 the king's subjects that will sue for the same in any of the and who shall 
 king's courts, by action, information, bill or otherwise, in ^^^^'^ ^^^ ^°^' 
 which action or suit the defendant shall not be admitted to ^^^tures. 
 wage his law, nor any protection nor essoin shall be allowed ; 
 
 and where such forfeiture shall be found out of the precinct of 
 any franchise, 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 defen- 
 dant shall not be admitted to wage his law, nor any protection 
 or essoin shall be allowed. 
 
 ((■) 1 Lutw. 1. 
 
486 
 
 APFExNDlX. 
 
 Proclamation 19. Aud to tlie intent that every person may liave know- 
 of this statute, ledgo of tliis 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 jiuisdictions 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. 
 
 11 Hen. 7, 
 c. 13. 
 
 Further pro- 
 visions re- 
 latiui? hereto. 
 31 Eiiz. c. 12. 
 
 In what man- 
 ner horses 
 shall be sold 
 in fairs or 
 markets. 
 
 The former 
 misuse in sale 
 of stolen 
 horses. 
 A place shall 
 be appointed 
 for a horse 
 fair and also 
 a toll taker. 
 
 "When, where, 
 and of whom 
 toll for horses 
 shall be taken. 
 
 2 & 3 Philip and Mary, Cap. 7. 
 An Act ac/ainst the Buyincj of Stolen Horses. 
 
 "Forasmuch as stolen horses, mares and geldings by 
 thieves and their confederates, be for the most parts sold, 
 exchanged, given or put away in houses, stables, back-sides 
 and other secret and privy places of markets and fairs, and 
 the toll also privily paid for the same, whereby the true 
 owners thereof 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 
 parliament, That the owner, governor, ruler, fermor, steward, 
 bailiff' or chief keeper of every fair and market overt within 
 this realm, and other the queen's dominions, shall before the 
 feast of Easter next, and so yearl}^, appoint and limit out a 
 certain and special open place within the town, place, field or 
 circuit where horses, mares, geldings and colts have been and 
 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 
 the said ruler or keeper of the said fair or market, put in and 
 appointed one sufficient person or more to take toll and keep 
 the same place from ten of the clock before noon until sunset 
 of every day of the foresaid fair and market, upon pain to 
 lose and forfeit for every default forty shillings : And that 
 every toll-gatherer, his deputy or deputies, shall, during the 
 time of every the said fairs and markets, take their due and 
 lawful tolls 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, 
 
>sTATUT?:s. 487 
 
 gift, contract or puttiug away of every sucli 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-j)laces of all the said parties, 
 and the colour, with one special mark at the least of every 
 such horse, mare, gelding 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 A note of all 
 shall within one day next after every such fair or market horses sold 
 bring and deliver his said book to the owner, governor, ruler, ^^ v^f ^' °^ 
 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 '?■ stolen horse 
 day of February now next coming, in any fair or market ^^ "j' 
 overt, of any horse, mare, gelding or colt that is or shall be owner's pro- 
 thievishly stolen or feloniously taken away from a.ny person perty shall 
 or persons, shall not alter, take away nor exchange the pro- he taken 
 perty of any person or persons to or from any such horse, ^'^^'^J- 
 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. 
 
488 
 
 APPENDIX. 
 
 The justices 
 of peace shall 
 hear and de- 
 termine the 
 offences 
 aforesaid. 
 
 The allow- 
 ance of the 
 keeper of the 
 book where 
 no toll is due. 
 
 5. And if any horse, mare, gelding or colt that is or sliall 
 be thievislily stolen or taken away, sliall after the said last 
 day of February next coming be sold, given, exchanged or 
 j)ut a^va}^, 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 ordi- 
 nary courts of record, by bill, plaint, action of Debt or infor- 
 mation, in which suits no protection, essoin or wager of law 
 shall be allowed. 
 
 7. And be it enacted by the authority aforesaid, That the 
 justices of peace of every place and county, as well within 
 liberties as without, shall have authority in their sessions, 
 within the limits of their authority and commission, to inquire, 
 hear and determine all offences against this estatute, as they 
 may do aay other matter triable before them. 
 
 8. Provided alway, that in every such fair or market where 
 any toll is nor shall be due ne leviable by reason of the free- 
 dom, liberty or privilege of the said fair or market, the keejier 
 or keepers of the book, touching the execution of this present 
 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. 
 
 " AVhereas through most coimties of this realm horse steal- 
 ing is grown 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 j)Ossibly 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 efi^ect for the repressing or 
 avoiding of horse stealing as was expected:" 
 
STATUTES, 489 
 
 2. Now for a further remedy in lliat Lelialf, be it enacted li 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- fellers of 
 ment shall in any fair or market sell, give, exchange or put fXs^or mar- 
 away any horse, mare, gelding, colt or filly, unless the toll kets must be 
 taker there, or (where no toll is paid) the book keeper, known to the 
 bailiff or the chief officer of the same fair or market, shall toll taker, or 
 and will take upon him perfect knowledge of the person that ^'^^^ °!'jj®'-' 
 so shall sell or oifer to sell, give or exchange any horse, mare, avouch the 
 gelding, colt or filly, and of his true christian name, surname sale, which 
 and place of dwelling or resiancy, and shall enter all the same shall be en- 
 his knowledge into a book there kept for sale of horses ; or ^''[f *? "i the 
 else that he so selling or ofl'ering to sell, give, exchange or 2°& 3°Ph'l & 
 put away any horse, mare, gelding, colt or filly, shall bring m. c. 7. 
 unto the toll taker or other officer aforesaid, of the same fair ^ sufficient 
 or market, one sufficient and credible person that can, shall and credible 
 or Avill testify and declare unto and before such toll taker, person shall 
 book keeper or other officer, that he knoweth the party that ■'''Vouch the 
 so selleth, giveth, exchangeth or putteth away such horse, ^°^'^^ seller. 
 mare, gelding, colt or fill}^ and his true name, surname. The price of 
 mystery and dwelling place, and there enter or cause to be >,^ii v,^^^ 
 entered in the book of the said toll taker or officer, as well tered in the 
 the true christian name, surname, m3'stery and place of dwell- toller's book. 
 ing or resiancy of him that so selleth, giveth, exchangeth or 
 putteth away such horse, mare, gelding, colt or filly, as of him 
 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 ofiter to sell, give, exchange or put away 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, ex- 
 changeth 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 
 selling, 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 
 
490 
 
 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. 
 
 The justices 
 of peace may 
 hear and de- 
 termine the 
 offences 
 aforesaid. 
 
 person, and of tlie name, surname, mystery and place of tlio 
 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 twopence 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 
 officer 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 jmumh ; 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 c^ueen'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, 
 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 
 every place and county, as well within liberties as without, 
 shall have authority in their sessions, within the limits of 
 their authority and commission, to inquire, hear and deter- 
 mine all offences against this statute, as they may do any 
 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 shall be used 
 in all points and circumstances as aforesaid, that yet never- 
 theless 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 jiarty 
 from whom the same was stolen, or by his executors 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 
 
STATUTES. 491 
 
 corporate or raarket toAvn, or else before any justice of peace 
 of that county near to the place where such horse, mare, geld- 
 ing-, colt or fill}'- shall he found, if it he 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 administrators 
 shall and may at all times after, notwithstanding any such 
 sale or sales in any fair or open market thereof made, have The owner 
 property and power to have, take again and enjoy the said may redeem a 
 horse, mare, gelding, colt or filly upon payment or readiness, horse stolen 
 or ofi:er to pay, to the p)arty that shall have the possession and -^[^{^^ ^x 
 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 price, 
 peace (who by virtue of this act shall have authority to 
 minister and give an oath in that behalf) that he paid for the 
 same bond fide, without fraud or collusion ; any law, statute 
 or other thing to the contrary thereof in anywise notwith- 
 standing. 
 
 2 Geo. II. Cap. 28. 
 
 An Act (among other things) for more effectual dcharriug 
 of unlaivful Games. 
 
 9, "And whereas a good and profitable statute was made Act 33 Hen. 
 
 in the three-and-twentieth year of the reign of King Henry 8, c. 9, 
 
 the Eiffhth, (among: other things) for the debarring of unlaw- f o'^'^.^^t ^^^i- 
 
 PT All ixi,-iiv.j. • • lawful srames 
 
 f ul games ; And whereas by the said statute no power is given ^.^^^^^ ^^^.^ 
 
 unto the justices of the peace to demand and take from per- effeetual. 
 sons found playing contrary to law any other security than 
 their own recognizances that they or any of them shall not 
 from thenceforth iise such unlawful games, unless such per- 
 sons 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 person or per- 
 sons have or hath used or exorcised any unlawful game con- 
 trary to the said statute, the said justice or justices shall have 
 
492 APPENDIX. 
 
 full power and authority to commit all and every such offender 
 and offenders to prison, without bail or mainprize, unless and 
 until such offender and offenders shall enter into one or more 
 recog'nizance or recognizances, with sureties 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 Ga m incj . 
 
 "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 acts(f/) de- 
 signed ; but that, contrary to the true intent and meaning of 
 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 
 by Raffles, by mathematical machines or engines, and by other 
 indirect ways and means, tending to evade the said good and 
 wholesome laws before mentioned ; and whereas several per- 
 sons have for many j^ears past carried on and set up certain 
 fraudulent games and lotteries, to be determined by the 
 chance of cards and dice, under the denomination of the games 
 of the ace of hearts, pharaoh, basset and hazard, and thereby 
 defrauded several of his majesty's subjects ignorant of the 
 great disadvantage adventures in the said games and lotteries 
 so denominated the games of the ace of hearts, pharaoh, hasset 
 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, hasset and hazard {e) are within the de- 
 scriptions of the lotteries prohibited by the said recited acts of 
 parliament (c/) ; and whereas great difficulties have arisen 
 ujion the methods of conviction of the offenders against the 
 said acts of parliament ; for remedy whereof, and for explain- 
 ing 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- 
 
 (rf) 10 & 11 Will. 3, c. 17; 9 (r) Fax v. Liston, 5 T. E. 340; 
 
 Anue, c. 6, s. 56; 8 Geo. 1, c. 2, M'Jumicll v. Robinson, 3 M. & "W. 
 s. 36, prohibiting Lotteries. 434. 
 
STATUTES. 493 
 
 ritual and temporal, and commons, in the j)resent parliament 
 assembled, and by the authority of the same, That if any per- 200;. penalty 
 son or persons shall, after the twenty-fourth day of June, one °^ ^^Y o^: 
 thousand seven hundred and thirty -nine, erect, set up, con- !f°^^ against 
 tinue or keep any office or place under the denomination of a 
 sale or sales of houses, land, advowsons, presentations to 
 livings, plate, jewels, shij^s, 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 prices 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, 
 method or device Avhatsoever, 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 
 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 otfence 
 shall be committed ; which said forfeitures, when recovered, The same how 
 after deducting the reasonable charges of such prosecution, to be levied 
 shall go and be aj^plied, one-third thereof to the informer ^^^ applied, 
 and the remaining two-thirds to the use of the poor of the 
 parish where such offence shall be committed, excej^ting 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 use and benefit of poor persons 
 resorting to the said city for the benefit of the mineral waters, 
 after deducting the charges of conviction as aforesaid. 
 
491 
 
 APPENDIX. 
 
 Games within 
 intent of the 
 act. 
 
 60/. [leualty 
 on the adven- 
 turers. 
 
 Sales by lot- 
 teries void ; 
 
 and lands, 
 «S:c. forfeited. 
 
 Aj^peal. 
 
 2. And it is hereby enacted and declared, That the said 
 games of the ace of hearts, pharanh, basset and hazard {/), 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 
 inflicted 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 convicted, 
 and the penalties and forfeitures shall be sued for and re- 
 covered, 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, j^haraoh, lasset and hazard (/), and 
 shall be thereof convicted in such manner and form as in and 
 by this act is prescribed, every such person or persons shall 
 forfeit and lose the sum of Ft/ti/ pounds, to be sued for and 
 recovered as aforesaid. 
 
 4. And it is hereby further enacted by the authority afore- 
 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, machine, 
 engine or other device whatsoever, depending ixpon or to be 
 determined by chance or lot, shall and are hereby declared to 
 be void to all intents and purposes whatsoever ; and all such 
 houses, lands, advowsons, presentations to livings, 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, 
 That if any person or persons shall think him, her or them- 
 selves aggrieved by the judgment or determination of any 
 justice or justices of the peace or mayor as aforesaid, upon 
 any conviction of or for an}' of the offences in this act, such 
 person or persons may appeal from the said judgment of the 
 said justice or justices or mayor to the next general qtiarter 
 sessions of the peace for the said county, riding, division, city 
 
 (/) Rex V. Lldun, .5 T. R. 340 ; M'Klnitell v. Robinsox, 3 M. & W. 43-i. 
 
STATUTES. 495 
 
 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 ajjpeal, 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 aj)peal 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 a2:)pealiug shall 
 pay unto the prosecutor or prosecutors his, her or tlioir 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. 
 
 6. Provided always, ancl be it further enacted by the au- Convictions, 
 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 Record re- 
 aforesaid, That no writ of certiorari or other process shall movable 
 issue or be issuable to remove the record of any such convic- '"poii.ioo^- 
 tion from the said court of quarter sessions, or to remove any ^^°"" ^^ 
 order or other proceedings taken or made by the said court of 
 cjuarter sessions upon, touching or concerning such conviction, 
 
 into any of his majesty's courts of record at "Westminster, 
 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 irehle costs and charges, in case such 
 order or couvictioii shall be affirmed. 
 
49G 
 
 APPENDIX. 
 
 Offenders not 
 able to 11 ay 
 the penalties 
 to be im- 
 prisoned. 
 
 Penalty on 
 neglect of 
 justices or 
 mayors. 
 
 This act not 
 to hinder any 
 games in 
 palaces where 
 the king re- 
 sides ; 
 
 nor to affect 
 the right to 
 any lands, &c 
 held by lot. 
 
 8. Aud it is hereby further enacted and declared, That if 
 any person or persons who shall he convicted of erecting, 
 setting up, maintaining or keeping any of the said lotteries, or 
 the said games of the ace of Jiearts, j-iJiaruoh, basset or hazard, 
 or tlierein or in either of tliem 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 security for the same, it shall and may be 
 lawful for the said justice or justices, before whom such per- 
 son 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 
 continue 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 where 
 such offence shall be committed (y), and shall be recovered 
 with full costs of suit, by action, bill, plaint or information in 
 any of his majesty's courts of record, or at the assize for any 
 county ; in which action, bill, plaint or information no essoign, 
 protection or wager of law, nor more than one imparlance 
 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- 
 clared. That nothing in this act or in any former acts against 
 gaming contained shall extend to prevent or hinder any 
 person or persons from gaming or playing at any of the games 
 in this or in any of the said former acts mentioned within any 
 of his majesty's royal palaces, where his majesty, his heirs 
 and successors shall then reside. 
 
 11. Provided always, and it is hereby further enacted and 
 declared. That nothing herein contained shall extend, or be 
 any ways construed, deemed or taken to extend, or in any 
 sort to affect or prejudice any estate or interest in, out of, or 
 to any manors, honours, royalties, lands, tenements, advow- 
 sons, presentations, rents, services and hereditaments what- 
 soever, which shall or may at any time or times hereafter be 
 according to the laws now in being legally allotted to, or held 
 by, or by means of any allotment or partition by lots (A) ; but 
 that all persons who now are, or that shall hereafter become 
 really and truly seised as part owners, joint tenants, and 
 tenants in common of any manors, honours, royalties, lands, 
 tenements, advowsons, presentations, rents, services, and 
 
 {g) But see 46 Geo. 3, c. 148, s. 59. 
 
 (/() See Ballot in Land Societies, ante. Part 3, Chap. 4. 
 
STATUTES. 497 
 
 hereditaments 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 commenced or prosecuted ^^ actions, 
 against any person or persons for anything done in j)ursu- 
 ance 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 issue, 
 shall and may plead the general issue, and give this act and 
 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 j)laintiffs shall Treble costs, 
 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 de- 
 fendants 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] (a). 
 
 13 Geo. II. Cap. 19. 
 An Act to restrain and prevent the excessive Increase of Horse 
 Eaces, and for amending an Act made in the last Sessio?i of' 
 Parliament, intituled " An Act for the more effectual pre- 
 venting of excessive and deceitful Gaming ^ 
 
 9. " And whereas a good and wholesome law was made in 12 Geo. 2, 
 the twelfth year of the reign of his present Majesty King c. 28. 
 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 
 j)assage is now daily practised and carried on, to the ruin and Game of 
 impoverishment of many of his Majesty's subjects ;" it is passage, and 
 therefore hereby enacted and declared, that the said game of ° •th'^r^"^^^ 
 passage, and all and every other game and games invented or prohibited, 
 to be invented, loith 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 tliereon {hackga^nmon and the 
 
 {(() Repealed, 5 & 6 Vict. c. 97, s. 2. 
 O. K K 
 
498 
 
 ArPENDIX. 
 
 Under penal- 
 ties of 12 
 Geo. 2, c. 28. 
 
 Double costs. 
 
 other games now played within tlie 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 
 plaj'ed 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 (backgam- 
 mon and 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 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 pla}', 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 re- 
 covered 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, j)rotection, 
 wager of law, or more than one imparlance shall be allowed ; 
 [and that over and above the penalties and forfeitures to be 
 recovered by virtue of this act, the plaintiff' or informer shall 
 recover his or her double costs] («). 
 
 18 Geo. II. Cap. 34. 
 An Act to explain, amend, and maJ^e more effectual the Laws in 
 being, to prevent excessive and deceitful Gayning ; and to re- 
 strain and prevent the excessive Increase of Horse Races. 
 "Whereas notwithstanding the many good and wholesome 
 laws now in being for j^reventing excessive and deceitful 
 gaming, many persons of ill fame and rejmtation, who have 
 no visible means of subsistence, do keep houses, rooms, and 
 
 {f() Repealed, 5 ,S: G Vict. o. 97. s. 2. 
 
STATUTES. 499 
 
 otlier places for playing, and do permit persons therein to play 
 at cards, dice and otlier 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 
 lords spiritual and temporal, and commons, in this present 
 parliament assembled, and by the authority of the same. That No person 
 from and after the twenty-fourth day of June, one thousand shall keep a 
 seven hundred and forty-five, no person or persons, of what Pj^^°*r ^°'-' 
 condition soever, shall keep any house, room or place for poiy^^f oth^r 
 playing, or permit or suffer any person or persons whatsoever, o-ame with, 
 within any such house, room or place, to play at the said game cards or dice, 
 of roulet, otherwise roly-poty, or at any other game, with cards ^mder penal- 
 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 suft'er any 
 person or persons as aforesaid to x>lay 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. Persons play- 
 That if any person or persons whatsoever shall after the said jng shall 
 twenty-fourth day of June, one- thousand seven hundred and ^^°'^.^' *^^ P^" 
 forty-five, play at the said game of roulet, otherwise roly-poly, q.^^ 2 c 28 
 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 de- 
 ceitful Gaming." 
 
 4. And for the more easy conviction of persons off'ending On informa- 
 against this or any other former act, for preventing excessive tion for any 
 and deceitful gaming, be it enacted by the authority aforesaid, °^^^^^ , . 
 That it shall and may be lawful to and for such person or ^^^^^^, ^2^^ 
 persons who have jm-isdiction to hear and determine infor- q^o. 2, c. 28^ 
 mations upon the statutes against excessive and deceitful or 13 Geo. 2, 
 
 p 10 
 
 K K 2 
 
500 
 
 APPENDIX. 
 
 persons may 
 be summoned 
 to give evi- 
 dence. 
 
 No person 
 incapable of 
 being a wit- 
 ness, &c. 
 
 Proviso for 
 royal palaces, 
 &c. 
 
 No privilege 
 of parliament, 
 &c. 
 
 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 I-iaces, 
 and for amending an Act made in the last Session of Parlia- 
 ment, intituled ' An Act for the more effectual preventing 
 excessive and deceitful Graming ;' " 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 
 neglect or refusal to appear, or if upon appearance such p»erson 
 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 persons 
 having jurisdiction as aforesaid committed to the common, 
 gaol for the county, city or jDlace where such offence shall be 
 committed, there to remain for the space of six months with- 
 out bail or mainprize. 
 
 5. And be it further enacted by the authority aforesaid, 
 That from and after the twenty-fourth day of June, one 
 thousand seven hundred and forty-five, no person or persons 
 other than the parties plaintiff and defendant in the cause 
 shall be incapacitated from being a "witness, touching any 
 offence committed against 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, 
 That nothing in this act contained shall extend to prevent or 
 hinder any person or persons from 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. 
 That no privilege of parliament shall be allowed to any person 
 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 
 
STATUTES. 501 
 
 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. IV. Cap. 83. 
 
 An Act for the Punishment of idle and disorderly Persons, and 
 Rogues and J'agabonds, iii 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 mitting cer- 
 
 havine: been convicted as an idle and disorderly person ; every tarn ottences 
 
 ° . -,. p-xiiiiii • herein men- 
 
 person pretending or proiessing to tell fortunes, or using any ^j^^g^j ^^ -^^ 
 
 subtle craft, means or device, by palmistry or otherwise, to deemed 
 
 deceive and impose on any of his majesty's subjects; every rogues and 
 
 person wandering abroad and lodging in any barn or out- vagabonds. 
 
 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 jDublic highway, 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 j^laying or betting in any street, road, 
 
 highicay or other open and public j^lace, at or loith 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 
 
 weapon, or having upon him or her any instrument, with 
 
 intent to commit any felonious act ; every person being found 
 
 in or upon any dwellinghouse, warehouse, coachhouse, stable 
 
 or outhouse, or in any enclosed 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 
 
502 
 
 APPENDIX. 
 
 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 aj^prehended 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 he deemed a rogue and vaga- 
 bond, within 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 
 to be hej)t 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. 
 
 Allowing 
 amendments 
 to be made 
 on the record 
 in certain 
 cases. 
 
 3 & 4 Will. IV. Cap. 42. 
 
 An Act for the further Ame7idment of the Laiv, and the better 
 Advancement of Justice. 
 
 Sect. 23. And whereas great expense is often incurred, and 
 delay or failure of justice takes place at trials, by reason of 
 variances as to some particular or particulars between the 
 proof and the record or setting forth, on the record or docu- 
 ment on which the trial is had, of contracts, customs, pre- 
 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 writing or in 
 print produced in evidence and the record : And whereas it 
 is expedient to allow such amendments as hereinafter men- 
 tioned to be made on the trial of the cause ; be it therefore 
 enacted, That it shall be lawful for any court of record, hold- 
 ing 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 Cjuo warranto, or proceedings 
 on a mandainus, when any variance shall appear between the 
 j)roof and the recital or setting forth, on the record, writ or 
 document on which the trial is proceeding, of any contract, 
 custom, prescription, name or other matter, in any particular 
 
STATUTES. 503 
 
 or particulars in the judgment of sucli 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 post- 
 poning 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 particular or particulars in the judgment of such court 
 or judge not material to the merits of the case, but such as 
 that the opposite i^arty may have been prejudiced thereby in 
 the conduct 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 Avith- 
 drawing the record or j)ostponing 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 otherwise, 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 Avith 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 dissatislied with the decision of such judge 
 at nisi prius, sheriff, or other officer, respecting his allowance 
 of any such amendment, to apply to the court from which 
 such record or writ issued for a new trial upon that ground, 
 and in case any such court shall think such amendment im- 
 proper, 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 Power for 
 shall and may, if they or he think fit, in all such cases of t^e court or 
 variance, instead of causing the record or document to be ■* (ffT,*°f ts 
 amended as aforesaid, direct the jury to find the fact or facts ^.q ^^g found " 
 according to the evidence, and thereupon such finding shall specially, 
 be stated on such record or document, and, notwithstanding 
 the finding on the issue joined, tlie said court or the court 
 from which the record has issued shall, if they shall think the 
 
504 APPENDIX. 
 
 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. 
 Power to state 25. And be it further enacted, That it shall he lawful for 
 a special case q^q parties in any action or information, after issue joined, by 
 ceedino- to°" consent and by order of any of the judges of the said superior 
 trial. ° courts, to state the facts of the case, in the form of a special 
 
 case, for the 02:)inion 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. 
 
 5 & 6 AYiLL. IV. Cap. 41. 
 
 An Act to amend the Laiv relating to Securities given for Con- 
 siderations arising out of gaming, usurious and certain other 
 illegal Transactions. 
 
 16 Car. 2, c. 7. Whereas by an act passed in the sixteenth year of the reign 
 of his late majesty King Charles the Second, and by an act 
 2:)assed in the parliament of Ireland in the tenth year of the 
 
 10 Will. 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, statiites, 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 
 9 Ann. c. 14. utterly void and of none effect : and whereas by an act j)assed 
 in the ninth year of the reign of her late majesty Queen 
 Anne, and also by an act passed in the parliament of Ireland 
 
 11 Ann. (I.) 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 daj^s 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 jiart 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, boicls, or other game or games xohatsoever, or hy 
 betting on the sides or hands of such as did game at any of the 
 
STATUTES. 505 
 
 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 p)lay 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 grantors thereof, or the person or persons so incum- 
 bering the same, had been natiu-ally dead, and as if such 
 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- 
 soever : and whereas by an act passed in the twelfth year of 12 Ann. st. 2, 
 the reign of her said late majesty Queen Anne, intituled "An °- 1^- 
 Act to reduce the E,ate 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 perforaied upon or for any loan, whereupon or whereby 
 there should be taken or reserved above the rate of six pounds 
 in the hundred, shoidd 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 Greorge the Third, intituled "An Act to afford 
 Eelief 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 
 
506 APPENDIX. 
 
 slioulcl, thougli it might liave been given for a usurious con- 
 sideration or upon a usurious contract, be void in the hands 
 of an indorsee for vahiable 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- 
 11 & 12 Geo. deration or iipon a usurious contract : and whereas by an act 
 3» (!•) passed in the parliament of Ireland in the eleventh and twelfth 
 
 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 whatsoever 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 secu- 
 rity of the payment of any debt or sum of monej^ due from 
 such bankrupt at the time of his becoming bankrupt, 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 
 4.5 Geo. 3, be recovered or recoverable : and whereas b}^ an act passed in 
 <:'■• 72. the forty-fifth year of the reign of his said late majesty Kang 
 
 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 
 6 Geo. 4, c. 16. effect whatsoever : and whereas by an act passed in the sixth 
 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 
 any 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 thereb}^ 
 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 j^ear of the reign of his said late majesty 
 King William the Third, the ninth and eleventh j'ears of the 
 reign of her said late majesty Queen Anne, the eleventh and 
 
STATUTES. 507 
 
 twelfth years of tlie reign of his said late majesty King Greorge 
 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 
 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 
 parliament assembled, and by the authority of the same. That Securities 
 so much of the hereinbefore recited acts of the sixteenth year giyen for con- 
 of the reign of his said late majesty King Charles the Second, arish:^<^Tit of 
 the tenth year of the reign of his said late majesty King iUeo-af trans- 
 William the Third, the ninth, eleventh and twelfth years of actions not 
 the reign of her said late majesty Queen Anne, the fifth year to be void, 
 of the reign of his said late majesty King George the Second, ^"* *°j^+' 
 the eleventh and twelfth and the forty-fifth years of the reign havTbeen 
 of his said late majesty King George the Third, and the sixth given for an. 
 year of the reign of his said late majesty King George the illegal consi- 
 Fourth, as enacts that any note, bill or mortgage shall be <leration. 
 absolutely void, shall be and the same is hereby repealed ; 
 but nevertheless every note, hill or mortgage, which if this act 
 had not been passed would, 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, Money paid 
 after the passing of this act, make, draw, give or execute any *° the holder 
 note, bill or mortgage for any consideration on account of '^•,?^^° j,^^?^" 
 which the same is by the hereinbefore recited acts of the six- deemed to be 
 
508 
 
 APPENDIX. 
 
 paid on ac- 
 count of the 
 person to 
 •whom the 
 same was 
 oricriaally 
 o-iveu . 
 
 Repealing 
 so much of 
 recited acts of 
 9 & 1 1 Ann. 
 as enacts that 
 securities shall 
 enure for the 
 benefit of 
 parties in re- 
 mainder. 
 
 teentli 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 have so paid such money, and shall 
 accordingly be recoverable {i) by action at law in any of his 
 majesty's courts of record. 
 
 3. And be it further enacted, That so much of the said acts 
 of the ninth and eleventh years of the reign of her said late 
 majest}^ Queen Anne as enacts that where such mortgages, 
 securities or other conveyances as therein mentioned should 
 be of lands, tenements or hereditaments, or should be such as 
 should incumber 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 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 lauds, tenements or here- 
 ditaments 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 reiDoaled ; saving to all persons all rights acquired by 
 virtue thereof previously to the passing of this act. 
 
 8 & 9 YicT. Cap. 109. 
 
 An Act to amend the Law concerning Games and Wagers. 
 
 Whereas the laws heretofore made in restraint of unlawful 
 gaming have been found of no avail to prevent the mischiefs 
 which may happen therefrom, and also apply to sundry games 
 
 (() Both principal and interest are recoverable ; Giljpin v. Chtttcrbuck, 
 Q. B., May 8, 1849. 
 
STATUTES. 
 
 509 
 
 of skill from wliicli tlie like mischiefs cannot arise ; 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 so much of an act passed in Repeal of 
 the thirty-third year of the reign of King Henry the Eighth, Pj^i't of 33 
 intituled " The Bill for maintaining Artillery, and the de- ^^"^^ ^' ^- ^• 
 barring 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 afore- 
 said, 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 re- 
 pealed, 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 j^early value of a hundred pounds 
 or above, to command, aj^point or license, by his or their 
 discretion, his or their servants or family of his or their house 
 or houses to play at cards, dice or tables, or any unlawful 
 game, as therein more fu.lly set forth, shall be rej)ealed ; 
 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, What shall 
 alleged or reputed to be opened for the use of the subscribers he sufficient 
 only, or not open to all persons desirous of using the same, Tl^^l%^ T 
 
 j1 T 1 • 1 /TNT'IT 1 J-lOU.Sc IS at 
 
 are to be deemed common gaming houses (A:) ; be it declared common 
 and enacted. That, in default of other evidence proving any gaming 
 house or jolace to be a common gaming house, it shall be suffi- house, 
 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 
 
 {k) See Crockford v. Lord 3Iaidstone, Appendix. 
 
510 
 
 APPENDIX. 
 
 Power of jus- 
 tices may be 
 exercised 
 luider Avar- 
 rant. 
 
 Penalties on 
 gaming 
 house keep- 
 ers, &c. 
 
 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 unlawfid 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 
 persons 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 
 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 
 common gaming house, and every person having the care or 
 management thereof, and also every banker, croupier and 
 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 o?ie or more 
 credible witnesses, before any two justices of the jjeace, 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, 7iot 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, tluit notliing herein contained shall 
 
STATUTES. 511 
 
 prevent any proceeding Ly indictment against the owner or 
 keeper or other person having the care or management of a 
 common gaming house ; hut 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 gaming in, or sufl'ering any gaming for 
 games or gaming in, or for keeping or using, or being con- ^i^oney, &c. 
 cerned in the management or conduct of a conniion gaming P^* ^^ecessary 
 house, to_ prove that any person found playing at any game informations 
 was playing for any money, wager or stake. for gamin o-. 
 
 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 autlio- 
 grounds for believing, and that he does believe, that any ^?^^ super- 
 house, room or place within the meirojjoliian police district {I), consi*^bl t 
 is kept or used as a common gaming house, it shall be lawful enter o-amino- 
 for either of the said commissioners, by order in writing, to houses' and ° 
 authorize the superintendent to enter any such house, room ^^^^'^ ^11 ^^- 
 or place, with such constables as shall be directed by the ^*™™ents of 
 commissioner to accompany him, and, if necessary, to use f^keTiSo^^ 
 force for the purpose of efl'ecting such entry, whether by break- custody all 
 ing oj)en doors or otherwise, and to take into custody all i)er- persons found 
 sons who shall be found therein, and to seize all tables and therein, 
 instruments of gaming found in such house or premises, and 
 
 also to seize all monies and securities for money found 
 therein. 
 
 7. And be it enacted, That it shall be lawful for the police Police super- 
 superintendent making such entry as aforesaid in obedience intendent may 
 to any such order of one of the commissioners of police of the ^^^^'^^^ for in- 
 metropolis, with the assistance of any constable or constables ^*^^'"™^^^*^ o* 
 accompanying him, to search all parts of the house, room or ° "' 
 place which he shall have so entered, where he shall suspect 
 
 that tables or instrimients of gaming are concealed, and all 
 persons whom he shall find therein, and to seize all tables and 
 instruments of gaming Avhich he shall so find. 
 
 8. And be it enacted. That where any cards, dice, balls, -WTiat shall 
 counters, tables or other instruments of gaming used in play- be deemed 
 ing any unlawful game shall be found in any house, room or evidence of 
 place, suspected to be used as a common gaming house, and S^^'^^S- 
 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 
 
 ij) See 2 & 3 Vict. c. A, s. 48. 
 
512 
 
 APPENDIX. 
 
 Indemnity of 
 ■witnesses. 
 
 Justices may- 
 grant billiard 
 licences at 
 licensine: 
 
 actually going on in tlie presence of the superintendent or 
 constable entering the same, under a warrant or order issued 
 under the pi^ovisions 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 j)rosecution 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 keej^er or other person 
 having the care or management of any common gaminghouse, 
 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. 
 
 10. And be it enacted, That the justices in every division, 
 district and place in England, for which a special session of 
 the justices of the peace (called the general annual licensing 
 meeting) is holden annually for granting licences to persons 
 keeping or being about to keep inns, alehouses and victualling 
 houses, to sell exciseable licpiors 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 aj)ply for 
 such billiard licence, and entitled to receive the like notice of 
 the licensing daj's, as is required in the case of persons intend- 
 ing to apply for a licence or the transfer of a licence to sell 
 exciseable liquors by retail to be drunk or consumed on the 
 premises, 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 
 
STATUTES. 513 
 
 the counties of Middlesex and Surrey from tlie 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 rec^uired 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 offence, on conviction before one justice, forfeit and pay 
 the sum of Five pounds. 
 
 11. And be it enacted, That after the fifth day of Ajoril, in Places kept 
 the year one thousand eight hundred and forty-six, in the for public 
 counties of Middlesex and Surrey, and elsewhere after the J*^^|^'^'',*^ tables 
 tenth day of October next after the passing of this act, every ° ® cense . 
 house (m), room, or place kept for public billiard pla;^dng, 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, c. 61. 
 regulate the granting of Licences to Kee^^ers of Inns, Ale- 
 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 Notice that 
 Surrey, and elsewhere after the said tenth day of October, such places 
 every person keeping any such public billiard table or baga- ^^^ bilUard 
 telle board, or instrument used in any game of the like kind to be put up. 
 for public use, without being duly licensed so to do, and not 
 holding a victualler's licence for the house 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 
 
 ()h) As to rating a House containing a Billiard Table, see Part 3, 
 Chap. 5. 
 
 O. X- L 
 
614 
 
 APPENDIX, 
 
 Penalties for 
 offences 
 against tenor 
 of licences. 
 
 9Geo.4, c. 61. 
 
 When billiard 
 playing shall 
 not be al- 
 lowed. 
 
 more than Ten pounds for every day on wliich 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 
 one 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 oif ender, 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 offence 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 punish- 
 ments in the case of a first, second or third offence respec- 
 tively to which persons licensed tmder an act passed in the 
 ninth year of the reign of King George the Fourth, intituled 
 "An Act to regulate the granting of Licences to Keepers of 
 Inns, Alehouses, and Yictualling Houses in England," are 
 respectively liable on conviction of a first, second or third 
 offence, against the tenor of the licence granted to them 
 imder the last-recital act, or as near thereunto as the nature 
 of the case wiU 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 the execution of the last-recited act, shall 
 be deemed to apply, so far as they are applicable, to convic- 
 tions for offences against the tenor of the licences granted 
 imder this act, and to the proceedings consequent thereupon 
 or connected therewith, as if they were herein re-enacted. 
 
 13. And be it enacted. That every person keeping any 
 public billiard table or bagetelle board, or instrument used 
 in any game of the like kind, whether he be the holder of a 
 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- 
 
STATUTES. 515 
 
 giving; and every person liolding- 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- Empowering- 
 stables and officers of police to enter into any house, room or constables to 
 place where any public table or board is kept for playing at 7^ icense 
 billiards, bagatelle or any game of the like kind, when and 
 
 so often as such constables and ofiicers shall think proper ; 
 and every person licensed under the said act of the ninth year 
 of the reign of King Gleorge the Fourth, or imder this act, 
 who shall refuse to admit or who shall not admit any such 
 constable or officer of police into such house, room or place 
 shall, on conviction thereof before a police magistrate or any 
 two justices of the peace, be deemed guilty of an offence 
 against the tenor of his licence, whether the same be a bil- 
 liard 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 Repeal of 16 
 year of the reign of King Charles the Second, and an act ^''^^- -> ^- "'■ 
 passed by the parliament of Ireland in the tenth year of the 10 Will. 3, (I.) 
 reign of King William the Third, each of such acts being 
 cntituled "An Act against deceitful, disorderly and excessive 
 Gaming," and so much of an act passed in the ninth year of 9 Anne, c. H. 
 the reign of Queen Anne, and of an act passed by the parlia- 
 ment of Ireland in the eleventh year of the same reign, each 11 Anne, (I.) 
 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, 5 & 6 Will. 4, 
 
 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 and part of 
 
 more effectual the Laws in being to prevent excespive and ^^ ^^°- -» 
 
 „ c. 34. 
 
 ll2 
 
)16 
 
 APPENDIX, 
 
 Cheating at 
 play to be 
 punished as 
 obtaining 
 money by 
 false pre- 
 tences. 
 
 Wagers not 
 recoverable 
 
 at law. 
 
 Proceedings 
 under feigned 
 issues abo- 
 lished. 
 
 deceitful Graming, and to restrain and prevent the excessive 
 Increase of Horse Eaces," as relates to the first-recited act 
 of Queen Anne, or as renders any person liable to he indicted 
 and j)unished 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 repealed, 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 Avhich any suit shall 
 have been commenced before the said fifth day of March, and 
 the proceedings for recovery and application of the same. 
 
 17. And be it enacted. That every person who shall, by 
 any fraud or xmlaivful device or ill practice («), in playing at 
 or with cards, dice, tables or other game, 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 wagering on the event 
 of any game, sjDort, 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 hy a false 
 pretence (o), with intent to cheat or defraud such person of the 
 same, and, being convicted thereof, shall be punished ac- 
 cordingly. 
 
 18. And be it enacted, That all contracts or agreements, 
 whether by parol or in writing, by way of gaming or wager- 
 ing, shall be null and void {pi) '■> ^^^ ^"^^^ ^^ suit {q) shall be 
 hrought 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(r): 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 
 exercise (s). 
 
 19. And whereas many important questions are now tried 
 in the form of feigned issues, by stating that a wager was laid 
 between two parties interested in respectively maintaining the 
 
 («) This must be in the Game ; 
 Heg. V. Baileij, 4 Cox, C. C. 390. 
 
 (o) Prosecutor entitled to costs 
 under 7 Geo. 4, c. 64, s. 23 ; Reg. 
 V. Gardner, Worcester Spr. Ass. 
 1851 ; S. C. 17 L. T. 7. 
 
 {])) Wagers declared void in 
 India by the act of the Governor in 
 Council, Oct. 10, 1848. See Eam- 
 boll V. SooJumnuU, 6 Moore's P. C. 
 314. See ante, Part 3, Chap. 3. 
 
 [i]) See Varney v. Hickman, ante, 
 Part 3, Chap. 3. 
 
 {r) This should be specially 
 pleaded ; Varney v. Hickman, 5 C. 
 
 B. 282. Plea to this effect bad for 
 Generality, Grizewood v. Blane, 11 
 
 C. B. 538. See ante, p. 423. 
 
 («) This proviso has no relation 
 to Derby lotteries. See Gatty v. 
 Field, 15 L. J., Q. B. 408. 
 
STATUTES. 517 
 
 affii'mative and tlie negative of certain propositions ; but sucli 
 questions may he as satisfactorily tried without such form (t) ; 
 be it therefore enacted, That in every case where any court of 
 law or equity may desire to have any question of fact decided 
 by a juiy, 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- Appeal to 
 marily convicted under this act may appeal to the next gene- Qy^'i'ter ses- 
 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 forty-eight hours thereafter, shall enter into a recogni- 
 zance, with two sufficient sureties, conditioned personally to 
 appear at the said session to try such apj^eal, 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 7Geo.4, c. 64. 
 the Administration of Criminal Justice in England," and in 
 case the appeal shall be dismissed, and the order or conviction 
 affirmed, the reasonable expenses of all svich witnesses attend- 
 ing as aforesaid, to be ascertained by the court, shall be rej^aid 
 to the said treasurer by the appellant. 
 
 21. And be it enacted, That when any distress shall be Distress not 
 made for any money to be levied by virtue of the warrant of unlawful for 
 any justice under this act, the distress shall not be deemed ^^'^'^ ^^ form, 
 unlawful, nor shall any joarty making the same be deemed a 
 trespasser, on account of any defect or want of form in the 
 information, summons, warrant of apprehension, conviction, 
 
 {f) This form may still be used ; see Luardy. Butcher, 15 L. J., C. P. 
 187. 
 
518 
 
 APPENDIX. 
 
 PlaintifF not 
 to recover 
 after tender 
 of amends. 
 
 Limitation of 
 actions. 
 
 Construction 
 of tei-ms. 
 
 Conviction, 
 &c. not to be 
 qnashed for 
 infonnality, 
 &c. 
 
 warrant of distress, or other proceeding relating thereto, nor 
 shall such party he deemed a trespasser from the beginning 
 on account of any irregularity which shall he afterwards 
 committed by him ; but all persons aggrieved by such defect 
 or irregularity may recover full satisfaction for the special 
 damage 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 
 any action for any irregularity, trespass or other wrongful 
 proceeding made or committed in the execution of this act, or 
 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 irregxdarity, trespass 
 or other wrongfid 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 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, 
 or any other proceeding, of what nature 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, imless notice in writing shall be 
 given by the party intending to prosecute such suit, informa- 
 tion or other proceeding, to the intended defendant, one 
 calendar 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- 
 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 me- 
 tropolitan police force, the commissioners of police of Dublin 
 metropolis, and the police district of Dublin metropolis. 
 
 25. And be it enacted, That no information, conviction or 
 other proceeding before or by any justice or justices under 
 this act shall be quashed or set aside, or adjudged void or in- 
 sufficient, for want of form, or be removed by certiorari into 
 her majesty's court of Queen's Bench. 
 
STATUTES. 519 
 
 The FiKST Schedule to -wliieh the foregoing Act refers. 
 
 Form of Warrant. 
 Comity of \ To the constable 
 
 Whereas it appears to me, /. 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 SJicrc insert a description of the house, room 
 or place by tchich it may be readily known andfound\ 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 wan-ant. 
 
 /. 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, [<»• such other county as may he directed.'] 
 Whereas^. B. affirms and C. D. denies [liere state fully the fact or facts 
 in issue], and the lord chancellor \or such other court, ^-c] is desirous of 
 ascertaining the truth by the verdict of a jiuy, and both parties pray that 
 the same may be inqiiired of by the country : Now let the juiy, &c. 
 
 The Third Schedule to which the foregoing Act refers. 
 
 Form of Licence. 
 
 At the generallicensing annual meeting [or " an adjournment of the 
 general annual licensing meeting," or " at a special petty session"] of 
 her majesty's justices of the peace acting for the division [or "liberty," 
 
 &c., as the case may be], of , in the county of , holden at on 
 
 the day of , in the year , for the purpose of granting 
 
 bilhard licences, we being of her majesty's justices of the peace 
 
 acting for the said county [or "liberty," &c. 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 \_hcre specify the house], 
 
 provided that he [or "she "] put and keep uji the words "licensed for 
 billiards' ' legibly painted in some conspicuous place near the door and on 
 the outside of the said house, and do not wilfully or knowingly permit 
 drunkenness or other disorderly conduct in the said house, and do not 
 
520 
 
 APPENDIX. 
 
 knoTvingly allow the consumption of exciseable liquors therein by the 
 persons resorting thereto, and do not knowingly suffer any unlawful 
 games therein, and do not knowingly suffer persons of notoriously bad 
 character to assemble and meet together therein, and do not open the said 
 house for play or allow any f>lay therein after one and before eight of the 
 clock in the morning, or keep it open or allow any play therein on Sun- 
 days, Christmas 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 licence 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. 
 
 A7i Act for legalizing Art Unions. 
 
 AVliereas certain voluntary associations have been and may 
 hereafter he formed in various parts of the United Kingdom, 
 under the name of Art Unions, for the i^urchase of paintings, 
 drawings, or other works of art, to be afterwards allotted and 
 distributed, by chance or otherwise, among the several mem- 
 bers, 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, 
 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 piu'chase, 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 
 
STATUTES. 521 
 
 and temporal, and commons, in tliis present parliament as- 
 sembled, and by the authority of the same, That all such Voluntary 
 voluntary associations as aforesaid, now constituted, or which associations 
 may hereafter be constituted according to the provisions ^onstituted _ 
 hereinafter contained, shall be deemed to be lawful associa- bution of 
 tions ; and the members of and subscribers and contributors to works of art 
 all such lawful associations, and all person acting under their ^J lot deemed 
 authority or on their behalf for the purposes aforesaid, shall ^^M^h ^^'°' 
 be freed and discharged from all pains and penalties, suits, charter shaU 
 prosecutions and liabilities, to which by law they would be have been 
 liable but for the passing of this act, as being concerned in first obtained, 
 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 ' 
 such committee ; and that it shall be exjn'essed 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 partnershij), 
 or other instrument constituting the same, shall have been so 
 revoked or annidled. 
 
 16 & 17 Vict. Cap. 33. 
 
 An Act for the better Regulation of Metropolitan Stage and 
 Hackney Carriages, and for prohihiting the Use of advertising 
 Vehicles. 
 
 AVhereas it is desirable to improve the condition of the 
 metropolitan stage and hackney carriages, and to alter and 
 amend the system of licensing such carriages : be it therefore 
 enacted by the Queen's most excellent majesty, by and with 
 
522 
 
 APPENDIX. 
 
 Persons desi- 
 rous of ob- 
 taining a 
 licence to 
 keep a hack- 
 ney carriage, 
 &c. to make 
 application 
 to commis- 
 sioners of 
 police, wIlo, 
 if carriage is 
 found fit, 
 shall grant a 
 certificate. 
 
 No licence to 
 be granted by 
 board of in- 
 land revenue 
 •without siich 
 certificate. 
 
 Commission- 
 ers of police 
 may cause 
 carriages, 
 &c. to be in- 
 spected, and 
 if not in fit 
 condition 
 may suspend 
 licences and 
 recall stamp 
 office plate. 
 
 Notice to be 
 given to in- 
 land revenue. 
 
 Penalty for 
 using carriage 
 not in fit con- 
 dition. 
 
 tlie advice and consent of tlie lords spiritual and temporal, 
 and commons, in this present parliament assembled, and by 
 tlie authority of the same, that — 
 
 1. From and after the first day of October next every per- 
 son desirous of obtaining a licence to keep, use, and let to 
 hii'e any metropolitan stage or hackney carriage (o) within 
 the limits of this act (Z') must apply in writing to the com- 
 missioners 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 car- 
 riage, within the limits of this act, unless the person applying 
 for the same shall produce such certifi.cate 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 
 necessarj^, 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 suspend, 
 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 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 
 hackney carriage who shall use or let to hire within the limits 
 
 (a) See 6 & 7 Vict. c. 86, s. 2. 
 {h) See post, s. 20 ; 16 & 17 Vict. 
 
 c. 127, s. 13, Appendix. 
 
STATUTES. o23 
 
 of this act any carriage as a metropolitan stage or hackney- 
 carriage which has not been certified by the said commis- 
 sioners 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 commis- 
 sioners that such carriage was no longer in a fit and proper 
 condition for pubKc use, shall be liable to a penalty not ex- 
 ceeding Three pounds for each day that he shall so use or let 
 to hire such carriage, or in default of payment may be impri- 
 soned 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 and fares to 
 the hire of such carriage the fares set forth in the schedule (A.) ^^ taken for 
 to this act annexed : provided always, that when the j)ro- ria"-eT^ ^^^' 
 prietor or driver of any hackney carriage to be paid a fare ° 
 calculated 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 from the hirer so requiring him to stop 
 
 a further sum (above th,e 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 proj^rietor or driver shall demand or re- No back fare 
 
 ceive over and above the said fare any sum, for or by way of *o ^° taken 
 
 back fare, for the return of such carriage from the place at *^^' "^™anded. 
 
 which such carriage shall be discharged (f/). 
 
 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 *<? be put up 
 painted or marked, in such a manner and in such a position distinctly 
 
 as shall be directed by the said commissioners of police, both ou^tsjc^jf qj 
 on the inside and outside of such hackney carriage, the hackney- 
 amount of fare according to distance and time which may carriages, 
 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 <iiice book of 
 for hire a book or table in such form as shall be directed by '^^'^^\ when 
 the said commissioners of police of the fares for the hire of ^^1^^° • 
 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. 
 
 6. In case of disputes as to the fare to be calculated As to settle- 
 according to the distance, any table or book signed by the ment of dis- 
 said commissioners of police shall, on proof of such signature, Pyt®^ as to 
 be deemed and taken to be conclusive evidence of all the dis- i^*^^^^^- 
 tances therein stated to have been measured by the authority 
 
 (c) See post, s. 7. 
 
 \d) See 16 & 17 Vict. c. 127, s. 13, Appendix. 
 
524 
 
 APPENDIX. 
 
 As to distance 
 drivers of 
 hackney car- 
 riages shall be 
 required to 
 drive. 
 
 Driver to de- 
 liver a ticket 
 to hirer of 
 carriao-e. 
 
 Number of 
 persons to be 
 carried to be 
 painted or 
 marked on 
 hackney 
 carriaa:e. 
 
 As to quantity 
 of luggapfe to 
 be carried 
 "without extra 
 charge. 
 
 of tlie 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 di'iver 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 di'iver thereof shall be entitled to de- 
 mand, 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 affixed on 
 such hackney carriage, or such other words or figures as the 
 said commissioners of police may direct (y). 
 
 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 such carriage the number of persons painted or marked 
 thereon, or any less number of persons. 
 
 10. The driver of every hackney carriage within the limits 
 of this act shall carry in or upon such carriage a reasonable 
 quantity of luggage for every person hiring such carriage 
 without any additional charge, except as provided in sche- 
 dule (A.) to this act annexed. 
 
 (e) See 1 & 2 Will. 4, 
 (/) See 16 & 17 Vict. ( 
 Iff) See post, s. 17. 
 
 . 22, s. 35. 
 127, s. 13, Appendix. 
 
STATUTES. 525 
 
 11. The driver of every hackney carriage within the limits Property left 
 of this act wherein any jDroperty shall be left by any person in hackney 
 shall within twenty-four hours carry such projjerty, if not carriages to 
 sooner claimed by the owner thereof, in the state in which he ^^ ^eposited 
 shall find the same, to the nearest police station, and shall office^ ^° ^^ 
 there deposit and leave the same with the inspector or other 
 ofiicer on duty, uj)on pain that every such driver making any Penalty on 
 default herein shall be liable to a penalty not more than Ten driver for 
 2}ou)uls, or at the discretion of the magistrate may be impri- <iefault. 
 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 kej)t for that purj)ose the 
 descrij)tion 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 pajang all expenses incurred, together with 
 such reasonable sum to the di-iver 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 disposed of. 
 dej)osited, 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 
 proj)erty, 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- refusing or 
 ductor of such carriage, or, if there be no conductor, to the neglecting to 
 
 driver, upon pain of a penalty of Ten pounds, to be paid bv ^^^? "? P^°' 
 \e • 1 i- J. • 1 perty left in 
 
 any person refusmg or neglectmg to give up any such pro- g^ao-e car- 
 
 perty belonging to another person ; and the conductor or riages. 
 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 ofiicer 
 on duty, upon pain that every such driver or conductor making 
 default herein shall be liable to a penalty not more than Te)i 
 potmds, or at the discretion of the magistrate may be im- 
 prisoned for any time not exceeding One month ; and the pro- 
 perty 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 g^g of^^olice' 
 
526 
 
 APPENDIX. 
 
 to appoint 
 persons to 
 enforce good 
 order at 
 liackney 
 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 
 stasre car- 
 
 Printed bills, 
 &c. not to 
 be put on 
 metropolitan 
 stage or hack- 
 ney carriages, 
 so as to ob- 
 struct light, 
 &c. 
 
 Advertising 
 vehicles, &c. 
 prohibited. 
 
 enforce good order at the standings for liackney carriages (A) 
 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 re- 
 lative 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 aj)point 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 commission.ers of police, subject to the appro- 
 bation of the commissioners of her majesty's treasiuy, shall 
 appoint wages to be paid to the said jDorsons 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 metropoKtan 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 suffer 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 
 manner as to obstruct the light or ventilation of such carriage, 
 or on the inside of any such carriage, in such a position that 
 any 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 
 any carriage or on horseback or on foot in any thoroughfare 
 or pubHc place within the limits of this act, to the obstruction 
 or annoyance of the inhabitants or passengers, any picture, 
 
 (/*) See 13 Vict. c. 7, s. 4. 
 
STATUTES. 527 
 
 placard, notice or advertisement, wlietlier written, printed or 
 painted uj)on or posted or attached to any part of such carriage 
 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- conductors 
 tively commit any of the f ollowina: offences within the limits ?.. ™6*™P0" 
 of this act, shall be liable to a penalty not exceeding Forty carriao-es" 
 shillings for each oiience, or, in default of payment, to im- and drivers 
 prisonment for any time not exceeding one calendar month (j) : of hackney 
 
 1 . Every driver of a hackney carriage who shall demand carnages, 
 
 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 offences herein 
 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 
 
 diive such carriage to any place within the limits of 
 this act (/:), 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 
 imfit 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 ofiice 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 against the provisions of this act, and ti'^tes or 
 also all disputes or causes of complaint that may arise out of •'"^ '°^/ "^ ® 
 the same ; or if the offence, dispute or cause of complaint ^ud deter- 
 shall be committed or occur in any place not comprised within mine offences, 
 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 occiu" within the city of London, the same shall be 
 heard and determined by one justice of the peace for the said 
 
 (0 See 1 & 2 Will. 4, c. 22, s. 42. 
 [k) See 16 & 17 Vict. c. 127, s. 17. 
 
528 
 
 APPENDIX. 
 
 In case of 
 disputes the 
 hirer may 
 reqixire the 
 driver to 
 drive to a 
 police court, 
 &c., or to a 
 police station. 
 
 Penalty for 
 offences 
 against this 
 act for which 
 no i^enalty is 
 appointed. 
 
 Meaning of 
 certain VFords 
 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. 
 
 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 jirovisions 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 in- 
 clude every part of the metropolitan police district (/) 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, 
 c. 127, s. 17, Appendix. 
 
 s. 2; 16 & 17 Vict. 
 
STATUTES. 
 
 SCHEDULES referred to in the foregoing Act. 
 
 529 
 
 Rates and Faees to be paid for any Hackney Caeeiage 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 
 
 MUe. 
 
 For any Dis- 
 tance exceeding 
 One Mile. 
 
 For any Time 
 within and not 
 
 exceeding 
 One Hour (6). 
 
 "With Four or 
 Two Wheels, 
 drawn by One 
 Horse. 
 
 6c?. 
 
 After the Eate 
 of Sixpence 
 for every 
 Mile, and for 
 any part of 
 a Mile over 
 and above 
 any Num- 
 ber of Miles 
 completed. 
 
 2i. 
 
 And for every 
 Hackney Car- 
 nage drawn by 
 Two Horses, 
 One Third 
 above the Kates 
 and Fares here- 
 inbefore men- 
 tioned. 
 
 The above fares to be paid according to distance or time, at the option of 
 the hirer, to be expre.ssed 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 car- 
 riage, one sum of Qd. 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 car- 
 riage with more luggage than can be carried inside the carriage, a 
 further sum of twopence for every package can-ied outside the said 
 carriage is to be paid by the hirer in addition to the above fares. 
 
 I, 
 
 SCHEDULE (B). 
 
 CEETIFICATE. 
 
 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] ; and I 
 certify that the said carriage is in a At and proper condition for public 
 use, and that persons are to be carried thereby [if the carriage be a 
 metropolitan stage carriage, the number of passengers to be carried inside and 
 outside thereof respective/y is to be specified, exclusive of the driver and con- 
 ductor.'] (Signed) 
 
 Commissioner of the police of 
 the metropolis. 
 
 (rt) The fares in this schedule, as 
 amended by 16 & 17 Vict. c. 127, 
 post, are minimum fares. A secre- 
 tary of state may raise them by 
 O. 
 
 order under 32 & 33 Vict. c. 115, 
 s. 9. 
 " (6) 16 & 17 Vict. c. 127, s. 15. 
 ((•) Ibid. s. 14. 
 
 M M 
 
530 
 
 APPENDIX. 
 
 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 carriagcl, 
 and known by the following- marks or description \here state marks or 
 description bij which the carriage may be 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 hackney carriage~\i.ox 
 the period of from this date. 
 
 (Signed) , 
 
 Commissioner of the police of 
 the metropolis. 
 
 Is. a mile to 
 be paid for 
 every mile 
 beyond the 
 circumference 
 of a circle 
 four miles 
 from Charing 
 Cross if car- 
 riage be dis- 
 charged 
 beyond such 
 circumfer- 
 ence. 
 
 Addition to 
 the fare to be 
 paid for each 
 person above 
 two. 
 
 When car- 
 riage hii-ed 
 by time, &d. 
 to be paid for 
 every fifteen 
 minutes, 
 or portion 
 thereof, over 
 the hour. 
 
 Proprietors 
 of hackney 
 
 16 & 17 Vict. Cap. 127. 
 
 An Act to reduce the Duties payable in respect of Hackney 
 Carriages used in the Metropolis, and to amend the Laios 
 relatiny 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 Carriages in certain Cases. 
 
 13. It shall be lawful for the driver of any hackney car- 
 riage 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, pro- 
 vided such carriage shall be discharged beyond such circum- 
 ference, anything contained in the thirty -third chapter of an 
 act of the sixteenth and seventeenth year of the reign of her 
 jDresent majesty, or in the schedule thereto, notwithstanding. 
 
 14. Whenever more than two persons shall be conveyed by 
 any hackney carriage drawn by one horse only, a sum of Six- 
 pence for each person above the number of two shall be paid 
 for the whole hiring in addition to the fare now directed to 
 be paid for two persons under the said act of the sixteenth 
 and seventeenth years 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 
 act hired for a fare to be paid according to time shall be hired 
 or used by the hirer thereof for any longer time than one 
 hour, Sixpence shall be paid for every fifteen minutes, or any 
 portion of fifteen minutes not completed, above one hour. 
 
 16. The proprietor of every hackney carriage or metropo- 
 litan stage carriage licensed to ply for hire within the limits 
 of this act who shall withdraw his carriage from hire for two 
 
STATUTES. 531 
 
 consecutive days, or for any two days in one week,, without withdrawing 
 just cause, of which, the magistrate before whom the complaint carriages from 
 is heard shall be the judge, shall be liable to a penalty of a ^^^^ beyond a 
 sum not exceeding Twenty shillings in resj)ect of every car- ^^abLe'to^™^ 
 riage for each day he shall so withdraw the same, and the penalty, 
 licence of such propri'etor shall be suspended or recalled and 
 taken away at the discretion of the said commissioners of 
 police : Provided always, that it shall be lawful for such pro- 
 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 <i6*"i®"- 
 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 Ofiice 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. 
 
 16 & 17 Vict. Cap. 119. 
 An Act for the Sup2)ressio7i 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, «S:c. 
 kept or used for the purpose of the owner, occupier, or keeper to be kejit f or 
 thereof, or any person using the same, or any person procured P^^'Pose ot 
 or employed by or acting for or on behalf of such owner, occupier bet- 
 occupier, or keeper, or person using the same, or of any ting with 
 person having the care or management or in any manner con- other persons, 
 ducting the Ijusiness thprenf, betting with persons resorting 
 
 M M 2 
 
632 
 
 APPENDIX. 
 
 Betting 
 houses to be 
 gaming 
 houses within 
 8 & 9 Vict. 
 c. 109. 
 
 Penalty on 
 owner or 
 occupier of 
 betting house. 
 
 Penalty on 
 persons re- 
 ceiving money 
 on condition 
 of paying 
 money on 
 event of any 
 bet. 
 
 tliereto ; or for tlie purpose of any money or valuable thing 
 being received by or on behalf of such owner, occupier, keeper, 
 or person as aforesaid as or for the consideration for any 
 assurance, undertaking, promise or agreement, exjiress 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 
 for the purposes aforesaid, or any of them, shall be taken and 
 deemed to be a common gaming house within the meaning of 
 an act of the session holden in the eighth and ninth years of 
 her majesty, chapter one hundred and nine, " to amend the 
 " law concerning games and wagers." 
 
 3. Any person who, being the owner or occupier of any 
 house, office, room, or other place, or a person using the same, 
 shall open, keep, or use the same for the purposes hereinbe- 
 fore mentioned, or either of them; and any person who, being 
 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 
 the business of any house, office, 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 j^oiinds, as shall be adjudged by such justices, 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 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 ex- 
 ceeding Six calendar months. 
 
 4. Any person,, being the owner or occupier of any house, 
 office, room or place opened, kejit or used for the purposes 
 aforesaid, or either of them, or any person acting for or on 
 behalf of any such owner or occupier, or any person having 
 the care or management or in any manner assisting in con- 
 ducting the business thereof, who shall receive, directly or 
 indirectly, any money or valuable thing as a dejiosit on any 
 bet, on condition of paying any sum of money or other valuable 
 thing on the happening of any event or contingency of or re- 
 
STATUTES. 633 
 
 latin g to a horse race or any other race, or any figlit, game, 
 sport or exercise, or as or for the consideration for any assur- 
 ance, undertaking, 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 ac- 
 knowledgment, note, security or draft on the receipt of any 
 money or valuable thing so paid or given as aforesaid, pur- 
 porting 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 contingency as aforesaid, shall, upon sum- 
 mary conviction thereof before two justices of the peace, 
 forfeit and pay such penalty, not exceeding Fifty pounds, as 
 shall be adjudged by such justices, and may befurther adjudged 
 by such justices to pay such costs attending such conviction 
 as to the said justices shall seem reasonable ; and on the non- 
 payment 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 correction, with or without hard 
 labour, for any time not exceeding Three calendar months. 
 
 5. Any money or valuable thing received by any such person Money so re- 
 aforesaid, as a deposit on any bet, or as or for the considera- ceived may 
 tion for any such assurance, undertaking, promise or agree- ^f recovered 
 ment as aforesaid, shall be deemed to have been received to or ^^^ y.c.r.cF-.Ar^r,- 
 for the use of the person from whom the same was received, the same. 
 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 alwaj's, that nothing in this act contained shall This act not 
 extend to any person receiving or holding any money or to extend to 
 valuable thing, by way of stakes or deposit to be paid to the stakes due to 
 winner of any race or lawful sport, game or exercise, or to the hor^rwin- 
 owner of any horse engaged in any race. ning a race. 
 
 7. Any person exhibiting or publishing or causing to be Penalty on 
 exhibited or published any placard, handbill, card, writing, persons ex- 
 sign or advertisement, whereby it shall be made to appear hibiting pla- 
 that any house, office, room or place is opened, kept or used cards or ad- 
 for the purpose of making bets or wagers in manner afore- I-^Vhoues " 
 said, or for the purpose of exhibiting lists for betting, or with ° 
 intent to 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 summary 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 
 
534 
 
 APPENDIX. 
 
 Penalties and 
 costs may be 
 levied by 
 distress. 
 
 Application of 
 penalties. 
 
 On neglect to 
 prosecute 
 any sum- 
 mons, jiis- 
 tices may 
 authorize 
 some other 
 person to 
 proceed. 
 
 Justices may 
 authorize 
 search of 
 suspected 
 houses. 
 
 costs, or in the first instance if to siicli justices it shall seem, 
 fit, may he committed to the common gaol or house of correc- 
 tion, with or without hard labour, for any time not exceeding 
 Two calendar months. 
 
 8. If any person convicted under this act on information 
 before justices shall be adjudged to pay any penalty, or any 
 costs and charges attending the conviction, and shall fail to 
 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- 
 judged to be paid under this act shall be paid to the informer, 
 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 
 or information in respect of any oifenee against this act shall 
 not appear at the time at which the defendant may have been 
 summoned to appear, or at any time to which the hearing of 
 the summons may have been adjourned, or, in the opinion of 
 any justices having authority to adjudicate with resj)ect to the 
 ofience 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 
 
STATUTES. 535 
 
 force for making such, entry, whether by breaking open doors, 
 or othervrise, 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 Commissioner 
 police force shall report in writing to the commissioners of of police may- 
 police of the metropolis that there are good grounds for be- authorize 
 lievino: and that he does believe that any house, office, room, superintend- 
 
 o^ ,•, Gilt 01 "DOilCG 
 
 or place within the metropolitan police district is kept or used to enter and 
 
 as a betting house or office, contrary to this act, it shall be search sus- 
 
 lawful for either of the said commissioners by order in writing pected houses. 
 
 to authorize 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 
 
 breaking open doors or otherwise, and to take into custody all 
 
 persons 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 Appeal to 
 this act may appeal to the next general or quarter session of quarter ses- 
 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 
 forty-eight hours thereafter, enter into a recognizance with 
 two sufficient sureties conditioned jpersonally 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 convic- 
 tion shall have been made to bind over any party who shall 
 have made information against the party convicted, and any 
 witnesses who shall have been examined, in sufficient recog- 
 nizances 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 
 justices, shall be allowed compensation for his or her time, 
 trouble, and expenses in attending the appeal, which com- 
 pensation shall be paid in the first instance by the treasurer 
 of the county or place in like manner as in eases of misde- 
 meanor under the provisions of an act passed in the seventh 
 year of the reign of King George the Fourth, intituled "An 7 & 8 Geo. 4, 
 Act for improving the Administration of Criminal Justice in c. 28. 
 England;" and in case any such appeal shall be dismissed and 
 
536 
 
 APPENDIX. 
 
 No objection 
 in matter of 
 form and 
 certiorari 
 taken away. 
 
 Distress not 
 unlawful for 
 want of form. 
 
 Tender of 
 amends, &c. 
 
 Limitation 
 of actions. 
 
 the order or conviction affirmed, the reasonable expenses of all 
 such witnesses attending as aforesaid, 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 information whereon the conviction has taken place, or to 
 such conviction, on any matter of form or on any insufficiency 
 of statement, provided it shall appear to the justices in quarter 
 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 
 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 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 fuU 
 satisfaction for the sj)ecial damage by an action on the case in 
 any of her majesty's courts of record. 
 
 16. No plaintiff shall recover in any action for any irregu- 
 larity, trespass, or other wrongful proceeding made or com- 
 mitted in the execution of this act, or 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 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 nature 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, 
 imless 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 compla:ned of, 
 
STATUTES. 537 
 
 or in case there sliall 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 Interpreta- 
 the terms "commissioners of the police of the metropolis," tion of terms, 
 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 jiolice 
 district of Dublin metropolis. 
 
 19. This act shall commence and come into operation on Commence- 
 the first day of December, one thousand eight hundred and ™ent of act. 
 fifty-three. 
 
 37 Vict. Cap. 15. 
 
 An Act to amend the Act of sixteenth and seventeenth Victoria, 
 chapter one hundred and nineteen, intituled " An Act for the 
 Suppression of Betting Houses." 
 
 "WTiereas it is expedient to amend the act of the session of 
 the sixteenth and seventeenth years of the reign of her present 
 majesty, chapter one hundred and nineteen, intituled " An Act 
 for the Suppression of Betting Houses," and to extend the 
 provisions of such act to Scotland: 
 
 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 j)arliament assembled, and by 
 the authority of the same, as follows: 
 
 1. This act shall be construed as one with the act of the Act to be 
 session of the sixteenth and seventeenth years of the reign of construed 
 her present majesty, chapter one hundred and nineteen, in- ^^}^ ^^ ^ ^^ 
 tituled "An Act for the Suppression of Betting Houses" (in ^^^^' ^' ^^^* 
 this act referred to as the principal act), and the principal act 
 
 and this act may be cited together as the Betting Acts, 1853 and Short title. 
 1874, and each of them may be cited sei^arately as the betting 
 act of the year in which it was passed. 
 
 2. This act shall not come into operation until the thirty- Commence- 
 first day of Jidy, one thousand eight hundred and seventy-four. °ient of act. 
 
 3. Where any letter, circidar, telegram, placard, handbill, Penalty on 
 card, or advertisement is sent, exhibited, or published, — persons ad- 
 
 (l.) Whereby it is made to appear that any person, either vertising as 
 in the United Kingdom or elsewhere, will on appli- ^^ letting', 
 cation give information or advice for the purpose of 
 or with respect to any such bet or wager, or any such 
 event or contingency as is mentioned in the princiftal 
 act, or will make on behalf of any other person any 
 such bet or wager as is mentioned in the principal 
 act ; or, 
 
538 APPENDIX. 
 
 (2.) Witli intent to induce any person to apply to any house, 
 office, room, or place, or to any person, with, the view 
 of obtaining information or advice for the pui'pose of 
 any such bet or wager or with respect to any such 
 event or contingency as is mentioned in the principal 
 act ; or, 
 (3.) Inviting any person to make or take any share in or in 
 connection with any such bet or wager ; 
 every person sending, exhibiting, or publishing, or causing 
 the same to be sent, exhibited, or published, shall be subject 
 to the penalties provided in the seventh section of the prin- 
 cipal act with respect to offences under that section. 
 Extension to 4. The twentieth section of the principal act is hereby re- 
 Scotland, pealed, and the principal act, as amended by this act, shall 
 extend to Scotland, with the following modifications and pro- 
 visions : 
 
 (1.) The term " distress" shall mean poinding and sale : 
 The term " misdemeanour" shall mean a crime and 
 offence : 
 (2.) All offences or penalties under this act and the prin- 
 cipal act shall be prosecuted and recovered before the 
 sheriff of the county or his substitute in the sheriff 
 court, at the instance of the procurator fiscal, or of 
 any private person, under the provisions of the Sum- 
 mary Procedure Act, 1864, and all the jurisdictions, 
 powers, and authorities necessary for the purposes of 
 this section are hereby conferred on the sheriffs and 
 their substitutes : 
 (3.) Every pecuniary penalty which is adjudged to bo paid 
 under this or the principal act, shall be paid to the 
 clerk of the court, and shall be by him accounted for 
 and paid to the Queen's and lord treasurer's remem- 
 brancer on behalf of her majesty : 
 (4.) The thirteenth and fourteenth sections of the principal 
 act shall not apply to Scotland, but it shall be com- 
 petent to any person who is convicted under this act 
 or the principal act to appeal against such conviction 
 to the high court of justiciary, in the manner pre- 
 scribed by such of the provisions of the act of the 
 twentieth year of the reign of King George the 
 Second, chapter forty-three, and any acts amending 
 the same, as relate to appeals in matters criminal, 
 and by and under the rules, limitations, convictions, 
 and restrictions contained in the said provisions. 
 
STATUTES. Of39 
 
 17 & 18 Vict. Cap. 38. 
 An Act for the Suppression of Gaming Houses. 
 
 Whereas divers statutes have been made from time to time 
 for the prevention of unlawful gaming ; and particularly by 
 the act of the session holden in the eighth and ninth years of 8 «fe 9 Vict. 
 her majesty, chapter one hundred and nine, powers are given ^' l*^^- 
 to justices of the peace in places beyond the metropolitan 
 police district to authorize constables, and to either of the 
 commissioners of police within such district to authorize 
 superintendents belonging to the metropolitan police force, 
 to enter houses suspected to be kept as common gaming 
 houses, and to arrest all persons found therein : and it is 
 thereby enacted, that where any cards, dice, balls, counters, 
 tables or other instruments of gaming used in playing 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 that 
 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 common 
 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 : and whereas the keepers 
 of common gaming houses contrive, by fortifying the entrances 
 to such houses, or by other means, to keep out the officers 
 authorized to enter the same until the instruments of gaming 
 have been removed or destroyed, so that no sufficient evidence 
 can be obtained to convict the offenders, who are thereby 
 encouraged to persist in the violation of the law ; and whereas 
 it is expedient that the law shall be made more efficient for 
 the suppression of gaming houses ; 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 who shall wilfully prevent any constable or Penalty on 
 officer authorized under the provisions of the said act of the persons ob- 
 eighth and ninth years of her majesty to enter any house, structmg the 
 room or place, from entering the same or any part thereof, constables 
 or who shall obstruct or delay any such constable or officer authorized 
 in so entering, and any person who, by any bolt, bar, chain to enter any 
 or other contrivance shall secure any external or internal house sus- 
 door of or means of access to any house, room or place so P^^*^*^ *o ^® 
 authorized to be entered, or shall use any means or contriv- gamine- 
 ance whatsoever for the purpose of preventing, obstructing house.° 
 or delaying the entry of any constable or officer authorized 
 as aforesaid into any such house, room or place, or any part 
 
640 
 
 APPENDIX. 
 
 Obstructing 
 entry of 
 constables 
 to be evi- 
 dence of 
 bouse being 
 a common 
 gaming 
 house. 
 
 Penalty on 
 persons ap- 
 prehended 
 for giving 
 false names 
 or addresses. 
 
 Penalties on 
 
 persons 
 
 keeping 
 
 gaming 
 
 houses. 
 
 thereof, may for every such offence, on a summary conviction 
 of the same before two justices of the peace, be adjudged by 
 such justices to forfeit and pay any penalty not exceeding 
 one hundred pounds, together with such costs attending the 
 said conviction as to the said justices shall appear reasonable ; 
 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 period not exceeding six 
 calendar months. 
 
 2. Where any constable or officer authorized as aforesaid 
 to enter any house, room or place is wilfully prevented from 
 or obstructed or delayed in entering the same or any part 
 thereof, or where any external or internal door of or means 
 of access to any such house, room or place so authorized to be 
 entered shall be found to be fitted or provided with any bolt, 
 bar, chain or any means or contrivance for the purpose of 
 preventing, delaying or obstructing the entry into the same 
 or any part thereof of any constable or officer authorized as 
 aforesaid, or for giving an alarm in case of such entry, or if 
 any such house, room or place is found fitted or provided 
 with any means or contrivance for unlawful gaming, or with 
 any means or contrivance for concealing, removing or destroy- 
 ing any instruments of gaming, it shall be evidence, until the 
 contrary be made to appear, that such house, room or place is 
 used as a common gaming house within the meaning of this 
 act and of the former acts relating to gaming, and that the 
 persons found therein were unlawfully' playing therein. 
 
 3. If any person found in any house, room or place entered 
 by any constable or officer authorized as aforesaid to enter the 
 same, upon being arrested by any such constable or officer, or 
 upon being brought before any justices, on being required by 
 such constable or officer or by such justices to give his name 
 and address, shall refuse or neglect to give the same, or shall 
 give any false name or address, he may, upon summary con- 
 viction thereof before the same or any other justices, be 
 adjudged to pay any penalty not exceeding fifty pounds, 
 together with such costs as to such justices shall appear 
 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 imprisoned in the common gaol or house of correction 
 for any period not exceeding one month. 
 
 4. Any person, being the owner or occupier, or having the 
 use of any house, room or place, Avho shall open, keep or use 
 the same for the purpose of unlawful gaming being carried 
 on therein, and any person who, being the owner or occupier 
 of any house or room, shall knowingly and wilfully permit 
 the same to be opened, kept or used b}' any other person for 
 the purpose aforesaid, and any person having the care or 
 
STATUTES. 541 
 
 management of or in any manner assisting in condncting the 
 business of any house, room or place ojieued, kept or used for 
 the purpose aforesaid, and any person who shall advance or 
 furnish money for the purpose of gaming with persons fre- 
 quenting such house room or place, may, on summary convic- 
 tion thereof before any two justices of the peace, be adjudged 
 by such justices to forfeit and pay such penalty not exceeding 
 five hundred pounds as to such justices shall seem fit, and 
 may be further adjudged by such justices to pay such costs 
 attending such conviction as to them shall seem reasonable ; 
 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 twelve 
 calendar months. 
 
 5. It shall be lawful for the justices before whom any 73er- Justices may 
 sons shall be brought who have been fovmd in any house, require any 
 room or place entered in pursuance of any authority granted ^^^' 
 under the provisions of the said act of the eighth and ninth handed to * 
 years of her majesty, to require of any such j^ersons to be be sworn 
 examined on oath and give evidence touching any unlawful an<i give 
 gaming in such house, room or place, or touching any act evidence, 
 done for the purpose of preventing, obstructing or delaying 
 
 the entry into such house, room or place or any part thereof 
 of any constable or ofiicer authorized as aforesaid ; and no 
 person so required to be examined as a witness shall be ex- 
 cused from being so examined when brought before such jus- 
 tices as aforesaid, or from being so examined at any subse'quent 
 time, by or before the same or any other justices, or by or before 
 any court, on any proceeding, or the trial of any indictment, 
 information, action or suit in anywise relating to such unlaw- 
 ful gaming or any such acts as aforesaid, or from answering 
 any question put to him touching the matters aforesaid, on 
 the ground that his evidence will tend to criminate himself ; 
 and any such person so required to be examined as a witness Penalty on 
 who refuses to make oath accordingly, or to answer any such refusing to 
 question as aforesaid, shall be subject to be dealt with in all ^® sworn, 
 respects as any person appearing as a witness before any 
 justices or court in obedience to a summons or subpoena, and 
 refusing, without lawful cause or excuse, to be sworn or to 
 give evidence, may by law be dealt with. 
 
 6. Every person so required to be examined as a witness Persons re- 
 as aforesaid, who upon such examination shall make true ^^^ed to 
 and faithful discovery to the best of his knowledge of all aswiSSsses 
 things as to which he is so examined, shall receive from the and making' 
 justices or judge of the court by whom he is examined a cer- a full dis- 
 tificate in writing to that efi'ect, and shall be freed from all covery, to be 
 criminal prosecutions and penal actions, and from all penal- ^^^^^ ivom 
 ties, forfeitux'es and punishments to which he may have &(. ^^^' 
 
542 
 
 APPENDIX. 
 
 Penalties 
 and costs 
 may be 
 levied by 
 distress. 
 
 Applications 
 of penalties. 
 
 On neglect 
 to prosecute 
 any sum- 
 mons, jus- 
 tices may 
 authorize 
 some other 
 person to 
 proceed. 
 
 become liable for anything done before that time in respect of 
 the matters touching which he has been so examined ; but 
 such witness shall not be indemnified under this act unless 
 he receive from such justices or judge a certificate in writing 
 under their hands, stating that such witness has on his ex- 
 amination made a true disclosure touching all things as to 
 which he has been examined ; and if any action, information 
 or indictment be at any time pending in any court against 
 any person so examined in respect of any act of gaming 
 touching which he was so examined, and if any action, in- 
 formation or indictment be at any time pending in any court 
 against any person so examined as a witness in manner be- 
 fore mentioned, for any such matter or thing, such court shall, 
 on the production and proof of such certificate, stay the pro- 
 ceedings in any such action, information or indictment, and 
 may, in its discretion, award to such person such costs as he may 
 have been put to by such action, information or indictment. 
 
 7. If any person convicted under this act on information 
 before justices shall be adjudged to pay any penalty or any 
 costs and charges attending the conviction, and shall fail to 
 pay such penalty or costs, the same may be levied by dis- 
 tress 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 com- 
 mitted to prison for default of payment of any penalty and 
 costs, then the costs alone may be levied by distress as 
 aforesaid. 
 
 8. One half of any pecuniary penalty which shall be 
 adjudged to be paid under this act shall be paid to the^person 
 laying the information upon which the conviction takes place, 
 and the remaining half shall be applied in aid of the poor 
 rate of the parish in which the offence shall have been com- 
 mitted, 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 re- 
 maining 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 
 poor rate or district. 
 
 9. In case any person who shall have laid any information 
 in respect of any offence against this act shall not appear at 
 the time at which the defendant shall have been summoned 
 to appear, or at any time to which the hearing of the sum- 
 mons may have been adjourned, or if such person, in the 
 opinion of any justices having authority to adjudicate with 
 respect to the offence charged in such information as afore- 
 said, shall otherwise have neglected to proceed upon or prose- 
 
STATUTES. 543 
 
 cute such informatiou with due diligence, it shall be lawful 
 for such justices to authorize any other person to proceed on 
 such information and summons instead of the person to whom 
 the same may have been granted, or such justices may dis- 
 miss the first information and summons, and authorize any 
 person to lay a fresh information in respect to the offence 
 charged in such first information, in like manner as if the 
 previous summons had not been granted. 
 
 10. Any person who shall be summarily convicted under Appeal to 
 this act may appeal to the next general or quarter session of quarter 
 the peace to be holden for the county or place wherein the sessions, 
 cause of complaint shall have arisen, provided that such per- 
 son, at the time of such conviction, or within forty-eight 
 
 hours thereafter, enter into a recognizance, with two suffi- 
 cient securities, conditioned personally to appear at the said 
 session to try such apj)eal, 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 any party who shall have made 
 information against the party convicted, and any witnesses 
 who shall have been examined, in sufficient recognizances, 
 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 justices, 
 shall be allowed compensation for his or her time, trouble 
 and expenses in attending the appeal, which comj)ensation 
 shall be paid in the first instance by the treasurer of the 
 county ^r 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 JFourth, intituled " An Act for 7 & 8 Geo. 4, 
 improving the administration of Ci'iminal Justice in Eng- °' ■^^• 
 land," and in case any such appeal shall be dismissed, and 
 the order or conviction affirmed, the reasonable expenses of 
 all such witnesses attending as aforesaid, to be ascertained 
 by the court, shall be repaid to the said treasurer by the 
 appellant. 
 
 11. On any such appeal no objection shall be allowed to the No objection 
 information whereon the conviction has taken place, or to allowed to 
 such conviction, on any matter of form or on any insufficiency information 
 of statement, provided it shall appear to the justices in quarter ric^on*has^" 
 sessions that the defendant has been sufficiently informed taken place, 
 of the charge intended to be made against him, and that such &c. in matter 
 conviction was proper on the merits of the case ; and no in- of form, 
 formation, conviction or judgment of the justices in general Judgment not 
 or quarter sessions shall be removed by certiorari into the certiorari ^ 
 Court of Queen's Bench. 
 
 12. When any distress shall be made for any money to be Distress not 
 
 levied by virtue of tlie warrant of an}' justice under this act, unlawful for 
 
 want of form. 
 
544 
 
 APPENDIX. 
 
 Tender of 
 amends. 
 
 Limitation 
 of actions. 
 
 Commence- 
 ment of act. 
 
 tlie 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 
 satisfaction for the sjiecial damage by an action on the case 
 in any of her majesty's courts of record. 
 
 13. No plaintitf shall recover in any action for any irregu- 
 larit}', trespass or other wrongful proceeding made or com- 
 mitted in the execution of this act, or 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 shall think fit, whereupon such proceed- 
 ing, oi'der 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. 
 
 14. No action, suit or information, or any other proceeding 
 of what nature 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 intend- 
 ing to prosecute sucii suit, information or other proceeding to 
 the intended defendant, one calendar month at least before 
 prosecuting the same, nor unless such action, suit, informa- 
 tion 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. 
 
 15. This act shall commence and come into operation on 
 the first day of August, one thousand eight hundred and fifty- 
 four. 
 
 26 & 27 Vict. Cap. 41. 
 
 An Act to amend the Law respecting the Liability of Lnnkeepers, 
 and to p7'eve7it certain Frauds upon them. 
 
 Whereas it is expedient to amend the law concerning the 
 liability of innkeepers in respect of the goods of their guests 
 
STATUTES. 546 
 
 in manner hereinafter 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, as follows ; (that is to say,) 
 
 1. No innkeeper shall, after the passing of this act, be Innkeeper 
 liable to make good to any guest of such innkeeper any loss ^ot to be 
 of or injury to goods or property brought to his inn, not being jia-b^e lor 
 a horse or other live animal, or any gear appertaining thereto, beyond 'so^ 
 or any carriage, to a greater amount than the sum of thirty except in 
 pounds, except in the following cases ; (that is to say, ) certain cases. 
 
 (1.) Where such goods or property shall have been stolen, 
 lost, or injured through the wilful act, default, or 
 neglect of such innkeeper or any servant in his em- 
 ploy : 
 (2.) Where such goods or property shall have been de- 
 posited expressly for safe custody with such inn- 
 keeper : 
 Provided always, that in the case of such deposit it shall be 
 lawful for such innkeeper, if he think fit, to require, as a con- 
 dition of his liability, that such goods or property shall be 
 deposited in a box or other receptacle, fastened and sealed 
 by the person depositing the same. 
 
 2. If any innkeeper shall refuse to receive for safe custody. Obligation 
 as before mentioned, any goods or property of his guest, or if to receive 
 any such guest shall, through any default of such innkeeper, property of 
 be unable to deposit such goods or property as aforesaid, such safe" custody 
 innkeeper shall not be entitled to the benefit of this act in 
 
 respect of such goods or property. 
 
 3. Every innkeeper shall cause at least one copy of the Notice of 
 first section of this act, printed in plain type, to be exhibited law, &c. 
 in a conspicuous part of the hall or entrance to his inn, and ^°.^*^ ^'^^' 
 he shall be entitled to the benefit of this act in respect of such exhibited^ 
 goods or property only as shall be brought to his inn while 
 
 such copy shall be so exhibited. 
 
 4. The words and expressions hereinafter contained, which Interpretation 
 in their ordinary signification have a more confined or a dif- of terms, 
 ferent meaning, shall in this act, except where the nature of 
 
 the provision or the context of the act shall exclude such 
 construction, be interpreted as follows ; that is to say, the 
 word "inn" shall mean any hotel, iim, tavern, public house, 
 or other place of refreshment, the keeper of which is now by 
 law responsible for the goods and property of his guests ; 
 and the word "innkeeper" shall mean the keeper of any 
 such place. 
 
 N N - 
 
546 
 
 APPENDIX. 
 
 Definitions. 
 
 Horse-races 
 unlawful 
 within ten 
 miles of 
 London unless 
 licensed. 
 
 Power to jus- 
 tices to license 
 at Michaelmas 
 quarter ses- 
 sions. 
 
 Mode of 
 making appli- 
 cation for 
 licence. 
 
 Penalty on 
 persons taking 
 part in un- 
 licensed 
 horse-races. 
 
 42 & 43 Vict. Cap. 18. 
 An Act fo7' the Licensing of Metropolitan Suhiirhan Racecourses. 
 
 "Whereas the frequency of horse-races in the immediate 
 vicinity of the metropolis is productive of much mischief and 
 inconvenience, and tlie holding of such races in thickly popu- 
 lated places near the metropolis is calculated to cause, and 
 does in fact cause, annoyance and injury to persons resident 
 near to the places where such races are held : 
 
 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 parlia- 
 ment assembled, and by the authority of the same, as follows ; 
 (that is to say,) 
 
 1. A horse-race within the meaning of this act shall mean 
 any race in which any horse, mare or gelding shall run or be 
 made to run in competition with any other horse, mare or 
 gelding, or against time, for any prize of what nature or kind 
 soever, or for any bet or wager made or to be made in respect 
 of any such horse, mare or gelding, or the riders thereof, and 
 at which more than twenty persons shall be j)resent. 
 
 2. From and after the twenty-fifth day of March, one thou- 
 sand eight hundred and eighty, it shall not be lawful that 
 any horse-race be held or take place on any pretext whatso- 
 ever within a radius of ten miles from Charing Cross, in the 
 City of Westminster, unless in a place for which a licence for 
 horse-raciug has been obtained pursuant to the provisions 
 hereinafter contained. 
 
 3. Any person desirous of obtaining a licence for horse- 
 racing for any open or enclosed land or place, being the 
 owner, lessee or occupier of such land or place, may apply to 
 the justices assembled at any Michaelmas quarter sessions of 
 the peace to be holden for the county, city, riding, liberty or 
 division in which such land or place is situate, which justices 
 are hereby empowered to grant or withhold a licence at their 
 discretion, such licence to be of force and valid for twelve 
 months dating from the twenty-fifth day of March next fol- 
 lowing the date of such application. 
 
 4. Every such application shall be made to the justices in 
 the same manner as applications for licences for places to be 
 kept for pubhc dancing, music, or other entertainment under 
 the provisions of an act passed in the twenty-fifth year of his 
 late Majesty King George the Second. 
 
 5. Any person who after the said twenty-fifth day of March, 
 one thousand eight hundred and eighty, shall take part in 
 any horse-race in any open or enclosed land or place for 
 which a licence is required under this act, and for which a 
 licence has not been obtained, shall upon summary conviction 
 
STATUTES. 547 
 
 he liatle to a penalty of ten pounds, or an imprisonment not 
 exceeding two months. 
 
 6. Any person wlio sliall bo tlie owner or lessee or in pos- Penalty on 
 session or occupation of any open or enclosed land or place owners and 
 for which, a licence for horse-racino: is required under this act, occupiers ot 
 and upon which any horse-race shall he held after the said fmlicensed 
 twenty-fifth day of March, one thousand eight hundred and horse-races 
 eighty, without such licence having been obtained, shall be take place, 
 guilty of a misdemeanor, and on conviction thereof shall be 
 punishable for every such offence Avith fine or imprisonment 
 
 at the discretion of the court, such fine not to be less than five 
 pounds nor more than twenty-five pounds, and such imprison- 
 ment not to be less than one month nor more than three 
 months. 
 
 7. Every horse-race held or taking place in contravention Unlicensed 
 of the provisions of this act shall be deemed to be a nuisance, liorso-racrs to 
 and any person injured or inconvenienced thereby shall have ^,^^^^(^ ^ 
 all such rights and remedies against all persons taking part in li^Me accord- 
 the same, and against owners, lessees, and occupiers of the ingly. 
 
 land or place, as he would have in case of a nuisance at 
 common law. 
 
 8. This act may be cited as the Racecourses Licensing Act, Short title. 
 1879. 
 
 N N 2 
 
PART III. 
 
 MISCELLANEOUS. 
 
 Qncoi^s Plate Articles 548 
 
 'Ilio Elites of Racing 551 
 
 Rules of the Jockcij Club 572 
 
 Tost Horses 578 
 
 Slauf/hterliig Horses 579 
 
 Conditions of Sale at Ahlridge''s . 579 
 Conditions of Sale at TattcrsalV s 581 
 
 QUEEN'S PLATE AETICLES («). 
 [It is Iler Majesty's Command, that tliese following Rules 
 be observed by the Owners and. Riders of all such Horses and 
 Mares as shall run for Her Majesty's Plates at Newmarket 
 and elsewhere.] 
 
 1. Every horse, or mare, that runneth for any of the said 
 Plates, shall carry the weig-ht appointed in the Schedule here- 
 unto annexed. 
 
 2. Every person that putteth in a horse, or mare, for any 
 of the said Plates, shall enter the same Avith the name of the 
 owner, and the age, name, pedigree, or sufficient description 
 of the horse, according to the Pule of the Jockey Club re- 
 garding nominations, at the time and place appointed by the 
 Steward or Stewards of the Paces at which such Plate is to 
 be run for. The charge for such entry shall not exceed five 
 shillings, and no further charge shall be made on the winner 
 of the Plate. 
 
 3. Horses that run for any of Her Majesty's Plates shall 
 start at the time appointed by the Steward or Stewards of the 
 Paces at which such Plate is run for. 
 
 4. Each horse's or mare's place, as he or she come by the 
 ending-post, shall be determined by the Judge a.j)pointed by 
 the Steward or Stewards of the Paces at the place where the 
 said Plate is run for. 
 
 5. Every rider shall, immediately after the race be run, be 
 obliged to come to the usual j^lace of weighing, with his horse 
 or mare, then and there to alight, and not before, and there 
 to weigh to the satisfaction of the person appointed for that 
 purpose. 
 
 6. And in case of neglect or refusal thereof, such owners and 
 riders shall immediately be declared incapable of running or 
 riding anymore forthisor any of Her Majesty's Plates hereafter. 
 
 7. No horse or mare that runneth on the wrong side of the 
 post or flags shall have any claim to the said Plates. 
 
 8. None of Her Majesty's Plates to bo run for in heats. 
 
 9. When the age or cpialification of a horse entered for any 
 of Her Majesty's Plates shall be objected to, either before or 
 after running, the Stewards of the Paces at which such Plate 
 
 {a) From the Racinsr Calet^dar, 1881. 
 
MISCELLANEOUS. 549 
 
 is run for sliall 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 to 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 
 decision 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. Her Majesty's Plates to be run for between the 25th of 
 March and the week which includes the 22nd of November, 
 both inckisive, in each year. 
 
 11. The distance shall not be less than two miles, and the 
 weights, regulated according to the months in which the races 
 are run, are to be according to the subjoined Schedule. 
 
 12. And in case any difference shall arise in running, or 
 respecting 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 aj^point. 
 
 The following regulations were published by order in 
 November, 1875: — 
 
 The Master of the Horse gives notice that after 1875, with 
 a view to encourage a greater number and a higher class of 
 horses running for Her Majesty's Plates, the number of plates 
 will be reduced and their value doubled. 
 
 No plate to be given at a meeting not held annually and 
 otherwise supported by public money. 
 
 No geldings to be allowed to run, and no plate to be con- 
 fined to mares. 
 
 (Signed) Bradfoed, Master of the Horse. 
 
 Until further notice they wiU be given as follows : — 
 
 Newmarket (every year) 300 GS. 
 
 York ,, 200 
 
 Stockbridge ,, 200 
 
 In alternate years : 
 
 Newcastle and Carlisle 200 
 
 Manchester ,, Liverpool 200 
 
 Chester ,, Shrewsbury 200 
 
 LicMeld ,, Warwick 200 
 
 Nottingham ,, Leicester 200 
 
 Lewes , , Ipswich 200 
 
 Weymouth ,, Plymouth 200 
 
 Winchester , , Salisbury 200 
 
 Hampton ,, Egham 200 
 
 Goodwood ,, Epsom 200 
 
 Lincoln ,, Doncaster 200 
 
 Northampton ,, Huntingdon 200 
 
 Richmond, 200 every other year. 
 
 The places mentioned in the first column will have the 
 Plates in 1882. Eichmond commenced in 1877. 
 
 (Signed) West2>iii\^stee, Master of the Horse. 
 
550 
 
 APPENDIX. 
 
 The Plates for ScotlaucI, viz., for Ediubiirgli and Eoyal 
 Caledonian Hunt come from a different fund from the above, 
 are granted annually, and are only of the value of lOOgs. 
 
 Queen's Plate Weights. 
 
 Prom this date, the weights for Her Majesty's Plates will he in accord- 
 ance with the new Scale of Weight-for-age and Distance approved by the 
 Stewards of the Jockey Club. 
 
 London, March 2nd, 1880. (Signed) Bradeoiid. 
 
 Age. 
 
 March. 
 
 and 
 April. 
 
 May. 
 
 June. 
 
 July. 
 
 August. 
 
 Sep- 
 tember. 
 
 October 
 & Nov. 
 
 Three yrs 
 
 Foui- yrs 
 
 rive, six, and ayed, 
 
 Three yrs 
 
 Four yrs , 
 
 Five jTs , 
 
 Six and apfed . . . . , 
 
 
 TWO MILES AND TmDEE THREE : 
 
 
 St. lb. 
 
 St. lb. 
 
 St. lb. 
 
 St. lb. 
 
 St. lb. 
 
 St. lb. 
 
 7 4 
 
 7 7 
 
 7 8 
 
 7 10 
 
 7 13 
 
 8 
 
 9 
 
 9 
 
 9 
 
 9 
 
 9 
 
 9 
 
 9 6 
 
 9 5 
 
 9 4 
 
 9 3 
 
 9 2 
 
 9 1 
 
 THREE MILES AND UPWARDS : 
 
 7 1 
 
 7 -1 
 
 7 o 
 
 7 7 
 
 7 9 
 
 7 11 
 
 9 
 
 9 
 
 9 
 
 9 
 
 9 
 
 9 
 
 9 8 
 
 9 7 
 
 9 6 
 
 9 5 
 
 9 
 
 9 4 
 
 9 10 
 
 9 8 
 
 9 7 
 
 9 6 
 
 9 5 
 
 9 4 
 
 St. lb. 
 
 8 1 
 
 9 
 9 
 
 7 13 
 9 
 9 3 
 9 3 
 
 Form of Certificate of having won a Queen'' s Plate. 
 These are to certify, that Her Majesty's Plate of Two Hundred Guineas 
 
 was won at the 
 
 called 
 
 A. B. Steward. 
 CD. Clerk of the Course. 
 E. 
 
 day of 
 
 188 ,by 
 
 horse 
 
 Lord Lieutenant of 
 the County. 
 
 The Duke of Westminster, 
 
 Master of the Horse to Her Majesty. 
 
 N.B. The certificate, when properly signed, is payable at three days' 
 sight to the winner of the Plate (or to any other jjerson, if endorsed by 
 the -winner) at the Office of the Clerk of Her Majesty's Stables, in the 
 Royal Mews, Pimlico. 
 
 The Plates at Chester, HamiDton, Goodwood, Huntingdon, Shrew.sbury, 
 Leicester, Livci'pool, Northampton, Egham and Plymouth, and the 
 lOOgs. added to the Whip at the Curragh, are given from a different 
 fund, and the Certificates are to be addressed to the Keeper of the Privy 
 Purse. 
 
 I^° The Clerk of the Stables requires the person presenting a certifi- 
 cate for payment to pay for a receipt stamp. 
 
 * If the Lord Lieutenant be officially out of the kingdom, the signature 
 of the Vice-Lieutenant is admissible. 
 
MISCELLANEOUS. 551 
 
 EULES OF EACING («). 
 
 At a Special Meeting of the Jockey Club, held in London 
 on Monday, the 18th of December, 1876, to take into con- 
 sideration the new Eules of Eacing as submitted by the Com- 
 mittee appointed for that purpose, and discussed during tho 
 preceding Houghton Meeting, it was resolved that the following 
 Eules should come into operation on the 1st of January, 1877, 
 and that all former rules be repealed on and from that day. 
 
 "\* The alterations made in the Eules during the year 1881 
 are printed in italics. 
 
 PAET Contents. 
 
 I. Interpretation and Application of these Rules. 
 II. Management of Race Sleetings and Powers of Stewards. 
 
 III. General Conditions and Restrictions. 
 
 IV. Entiy and Subscription for Races. 
 V. Stakes and Forfeits. 
 
 VI. The Race. 
 VII. Objections and Complaints. 
 VIII. Special Conditions (Claiming and Selling Races ; Produce Races ; 
 Post Races ; Handicaj)s ; Sale with Engagements). 
 IX. Miscellaneous. 
 
 Eules of Eacixg made by the Jockey Club at Newmarket. 
 Part I. — Interpretation and Application of these Rules. 
 
 1. "Eace" includes plate, match or sweepstakes, bvit does General 
 not include or refer to a steeplechase or hurdle race, or a definitions, 
 hunters' race on the flat. 
 
 " Horse" includes mare or gelding. 
 
 "Plate" means a race to be run for money or other prize 
 given without any stake being made by the owners of the 
 horses engaged to go to the winner. 
 
 "Sweepstakes" means a race in which stakes, are to be 
 made by the owners of three or more horses to go to the 
 winner ; and any such race is still a sweepstakes, even although 
 the number is reduced by death to two subs., or although 
 money or any other prize be added, and although tho word 
 " plate" be used in the official or ordinary name or description 
 of such race. 
 
 "Eecognised meeting" or "recognised race," used with 
 reference to a foreign meeting or race, means a meeting or 
 race included in the list of foreign meetings and races to be 
 made as directed in these rules. 
 
 A " maiden" means a horse which has never won a plate or 
 sweepstakes at any meeting in Great Britain, or at any recog- 
 nised meeting in any other country. 
 
 A match at " catch weights" means a match in which the 
 riders need not weigh before or after the race. Catch weights 
 are permissible only for matches. 
 
 " Eegistry office" means such office as is for the time being 
 appointed as the registry office by the Jockey Club ; and ox- 
 (n) From the Racing Calendar, 1881. 
 
552 
 
 APPENDIX. 
 
 Application of 
 these Kules. 
 
 Commence- 
 ment of these 
 Rules. 
 
 pi'GSsions in these Eules or in tlie programme or conditions of 
 any meeting or race referring to Messrs. Weatherby's mean 
 the registry office as herein defined. 
 
 The "Eacing Calendar" and the " Stud Book" mean the 
 works published under those names respectively for the time 
 being authorized by the Jockey Club. 
 
 The "Sheet Calendar," the "Monthly Calendar," and the 
 " Book Calendars" of "Eaces Past" and of " Eaces to Come" 
 mean the parts or editions of the "Eacing Calendar" as pub- 
 lished under or usually known liy those names respectively. 
 
 The Channel Islands and the Isle of Man are not included 
 in the expression " Great Britain," but they are included (with 
 Ireland) in the expression "the United Kingdom." 
 
 " Month" means a calendar month. 
 
 2. (i.) These Eules apply to aU meetings held under the 
 control of the Jockey Club, or advertised in the "Eacing 
 Calendar" to be held subject to these Eules. 
 
 (ii.) If a horse run in a race at any meeting in Great 
 Britain which is not so advertised, he is perpetually disquali- 
 fied for all races to which these Eules apply. 
 
 (iii.) The Stewards of the Jockey Club may at their dis- 
 cretion prohibit the advertisement of any meeting in the 
 " Official Eacing Calendar." 
 
 3. These rules shall come into operation on the first day of 
 January, 1877, and any other Eules of Eacing shall be 
 annulled as from that day, without prejudice to then existing 
 riffhts or liabilities. 
 
 Paut II. — Mcmagement of Meetings mid Potcers of Stewards. 
 
 Meetings. 4. (i.) Every meeting must be advertised in the "Eacing 
 
 Calendar." 
 
 (ii.) The advertisement must state that the meeting is to be 
 subject to the Eules of Eacing, and must state as soon as 
 practicable the days on which the meeting is to begin and 
 end, the dates for closing the stakes (which shall always be 
 on a Tuesday, except for races closing within six days of, or 
 during, a meeting), and, in every advertisement, all fees pay- 
 able at the meeting, and tlie names of two or more persons as 
 Stewards, and of the Judge, Starter, Clerk of the Course, 
 Handicapjier, Stakeholder, and Clerk of the Scales, and the 
 Clerk of the Course, or corresjyonding official, shall he the sole 
 person responsible to the Stewards for the general arrangeinents 
 of the meeting. 
 
 (iii.) No meeting shall be advertised in the "Eacing 
 Calendar" imless the money added be not less than 300 sov. 
 per day, 150 of which at least shall be added to races of a 
 mile and upwards, and the minimum so required to be added 
 shall be given notwithstanding any condition to the contrary, 
 if there be five entries, and three horses the ^iroj^erty of dif- 
 ferent owners start. 
 
MISCELLANEOUS. 553 
 
 (iv.) No race shall be run earlier than in the week which 
 includes the 25th of March, or later than in the week which 
 includes the 22nd of November. Exception. — If the week 
 including the 25th of March be the week next before Easter 
 Sunday, races may be run in the week next but one before 
 Easter Sunday. 
 
 (v.) A meeting' shall be deemed to commence at ten in the 
 morning of the day for which the first race is advertised, and 
 to conclude at ten in the evening of the last day of the races. 
 
 (vi.) The Stewards in case of urgent necessity may from 
 time to time put off any races from day to day until a Sunday 
 intervenes. 
 
 Powers of Steivards. 
 
 5. (i.) The Stewards of a meeting shall have full power to General 
 make all such arrangements for the conduct of the meeting as powers of 
 they think fit ; and to regulate and control the conduct of all stewards, 
 ofiicials, and of all jockeys, grooms and persons attendant on 
 horses ; and to determine all questions or disputes arising 
 between any persons at or in relation to anything done or 
 omitted in reference to racing, except only disputes or claims 
 relating to bets. 
 
 (ii.) They shall have power to punish at their discretion 
 any official or jockey or other person subject to their control 
 with fine or with suspension from acting or riding at the same 
 meeting, and to report to the Stewards of the Jockey Club 
 any further punishment which they consider necessary. 
 
 Provided that they shall not fine any person more than 
 50/. (unless they are Stewards of the Jockey Club, in which 
 case they may impose any fine not exceeding 100/.) 
 
 (iii.) They shall exclude from the stands, enclosures, sad- 
 dling paddocks, weighing rooms, and other places under their 
 control, every person who has been warned off Newmarket 
 Heath, and every person ivhose name is in the Unpaid Forfeit 
 List, and which has been twice so published in the Racing Calen- 
 dar, also every jockey who has been suspended for corrujit 
 practices on the turf, so long as the sentence against such 
 person or jockey remains in force. They shall in like manner 
 exclude any person who has been declared by the Turf Club 
 in Ireland, or by the stewards of any recognised meeting in 
 any country, to have been guilty of any corrupt or fraudiilent 
 practice on the turf. They shall farther have power to exclude 
 at their discretion any person from all or any places under their 
 control. 
 
 (iv.) If any case occur which is not, or which is alleged 
 not to be, provided for by these Eules, it shall be determined 
 by the Stewards in such manner as they think just, and they 
 shall report the case with their decision (and with their con- 
 sent to an appeal, if they give such consent) to the Stewards 
 of the Jockey Club for confirmation. 
 
554 
 
 APPENDIX. 
 
 Stewards and 
 deputies. 
 Powers of 
 Stewards after 
 conclusion of 
 meeting. 
 
 Judges, 
 stai'ters, &c. 
 
 General Rules 
 with res^Dect 
 to asre. 
 
 Weights and 
 allowances. 
 
 (v.) The decision of the Stewards, or of the Stewards of the 
 Jockey Chib in case of appeal, shall be final, and shall not be 
 questioned in any court except by leave of the Stewards by 
 whom it was made. 
 
 6. A Steward may appoint a deputy at any time. 
 
 7. The powers of the Stewards continue after the meeting 
 for all purposes relating to disputes, objections, penalties and 
 disqualifications. 
 
 Judges, Starters, and other Officials. 
 
 8. The Stewards shall appoint an adequate staff of officials for 
 every meeting. 
 
 The following officials shall require a licence to he granted hy 
 the Stewards of the Jochey Cluh anmuilly before they can act, 
 viz., Judge, Starter, Clerh of the Course, and Clerk of the Scales, 
 and one of each shall he named for each meeting advertised in the 
 Calendar ; but, in case of emergency, the Stewards may, during 
 a meeting, appoint an unlicensed deputy to fill any of such offices, 
 in lohich case they shall make a special report to the Stewards of 
 the Jochey Cluh, 
 
 A race cannot be decided unless the judge or his authorized 
 deputy or substitute, or a steward, occupy the judge's box at 
 the time when the horses pass the winning-post. 
 
 The judge shall send a report of the result of the race, 
 signed by him, to the registry office. 
 
 P^VET III. — General Conditions a7id Restrictions. 
 Age of Horses. 
 
 9. (i.) The age of a horse shall be reckoned as beginning 
 on the 1st of January in the year in which he is foaled. 
 
 (ii.) Yearlings shall not run for any race. Two-year-olds 
 shall not run for any handicap before the 1st of September, 
 nor after that date with any but two-year-olds. 
 
 (iii.) Two-year-olds shall not run more than six furlongs 
 before the Is't of July, nor less than five furlongs at any time. 
 
 (iv. Thi-ee-ycar-olds and upwards shall not run less than 
 five furlongs for a plate or sweepstakes. 
 
 Weights and Alloivances. 
 
 10. (i.) No horse shall carry less than 5st. 7 lb. in any plate 
 or sweepstakes. 
 
 (ii.) The top weight in a handicap shall not be less than 
 8st. 12 lb., and if the highest weight accepting be less than 
 this it shall be raised to 8st. 121b., and the other weights shall 
 be raised in proportion. 
 
 (iii.) No horse shall receive allowance of weight, or be 
 relieved from extra weight, for having been beaten in one or 
 more races ; provided that this rule shall not prohibit maiden 
 allowances. 
 
MISCELLANEOUS. 555 
 
 (iv.) No horse sliall carry extra weiglit for having run 
 second, or in any lower place in any race or races ; provided 
 that this rule shall not exempt a horse which has received 
 100^. or upwards for having been placed, from being debarred 
 from maiden allowance by the conditions of any particular 
 race. 
 
 (v.) Allowances and extra weights shall not be allowed or 
 incurred in respect of matches or private sweepstakes, and 
 penalties are not cumulative unless so declared by the condi- 
 tions of the race. 
 
 (vi.) "Where winners of selling races are exempted from 
 penalties, only such horses as have run to be sold shall be 
 entitled to the allowance. 
 
 Miscellaneous. 
 
 11. Subject to the express provisions of the conditions of a Miscellaneous 
 race, the following rules shall apply to all conditions of races : Eules with 
 
 (i.) Winnings during the year shall include all prizes from respect to 
 the commencement of the racing season to the time apj)ointed ^^^^^^^^^^^^ of 
 for the start, and shall apply to all recognized races in any 
 country, and winning shall include walking over or receiving 
 forfeit. 
 
 (ii.) The value of prizes not in money must be advertised. 
 
 (iii.) In estimating the value of a race, there shall be de- 
 ducted the amount of the winner's own stake and entrance, 
 and any money payable to other horses, or out of the stakes 
 by the conditions of the race, or by the general conditions of 
 the meeting, except discount, Clerk's fees, stakeholding and 
 weighing fees. 
 
 (iv.) Conditions referring to maidens shall mean maidens 
 at the time of the start. 
 
 12. No plate or sweepstakes shall be run for unless the Minimum 
 clear value to the winner (calculated under Rule II.), in case value of plate 
 the race be run by two or more horses, will amount to 100^. or stakes. 
 But if the value would amount to 100/., if the race were so 
 
 run, a horse may walk over, although he thereby receives less 
 than 100/. 
 
 13. (i.) No entrance fee to any fund but that devoted to the Fees, 
 winner of the race shall exceed 3 per cent, on the added 
 money. 
 
 (ii.) The Stakeholder shall be allowed to retain, out of the 
 stakes in his hands, the following fees for expenses, viz. : — 
 For every match, 1/. 
 For every plate, 1/. 
 
 For every subscription or sweepstakes where the lowest 
 forfeit amounts to 20 sov. ^ per cent, on the whole stake, 
 and on all other races 1 per cent, 
 (iii.) 2.S. 6r/. shall be the maximum charge for Clerk's fee 
 for entry, and the same for weighing. 
 
556 
 
 APPENDIX. 
 
 (iv.) Provided that in the ease of any meeting at which it 
 shall be proved to the satisfaction of the Stewards of the 
 Jockey Club, that no more than a reasonable interest upon 
 capital invested is applied to any purpose other than the 
 support of the races, and that the scale vipon which the 
 officials are remunerated is not excessive, they may sanction 
 such modification of this Rule as they may consider expe- 
 dient. 
 
 Iloi'ses must 
 bo duly 
 entered for 
 plate or 
 
 sweepstakes. 
 
 Time and 
 place of entry. 
 
 Entry, how 
 made. 
 
 Part IV. — Entry and Si(bscriptio}i for Races. 
 
 14. A horse shall not be qualified to run for any plate or 
 sweepstakes unless he has been and continues duly entered 
 for the same. 
 
 15. A time and place or places for the entry of horses for 
 every plate or sweepstakes must be advertised in the " Sheet 
 liacing' Calendar:" Provided that if the time so advertised 
 fall during a Newmarket race week, any entry to be made at 
 Messrs. Weatherby's may be made at Newmarket, whether so 
 advertised or not. 
 
 The list of entries shall be closed at the advertised time, 
 and no entry shall be permitted in any case or on any terms 
 to be made after that time. 
 
 If no hour be fixed for closing, the list shall not be closed 
 till midnight on the advertised day. 
 
 No declaration of forfeit, except for races of the current tveeh, 
 shall he fixed to he made at noon or any hour earlier than the end 
 of the day. 
 
 All entries made elsewhere than at Messrs. Weatherby's 
 office (except entries made during the week of the meeting or 
 on the Saturday preceding the meeting) shall be lodged at 
 that office on or before the seventh day after the day of closing, 
 or the receiver of nominations shall be fined 10 sov. and the 
 nomination shall be void unless the nominator can prove to 
 the satisfaction of the Stewards of the Jockey Club that the 
 entry was made in due time. 
 
 16. Entry shall bo made by writing, signed by the owner 
 of the horse or by some person deputed by him, or by tele- 
 graph, which shall be equally binding. Entries by telegram 
 must, however, be confirmed in writing at the earliest possible 
 opportunity, and in all cases before the time of weighing, or 
 the horse shall not be allowed to start. 
 
 It shall state the name of the owner and the name or 
 description of the horse, and (if the race be for horses of 
 different ages) the age which the horse will be at the time of 
 the race. 
 
 Entrance money must (if so required) be paid at the time 
 of entry. 
 
 Allowances must be claimed at the time of entry, except 
 when otherwise specified, or they shall not be allowed. 
 
MISCELLANEOUS. 657 
 
 17. In entering a horse for the first time he shall be de- Description 
 scribed by stating his colour (when possible), and whether he of horse in 
 is a horse, mare or gelding, and the Calendar or Stud-book ^^'^^ entry, 
 names of his sire and dam. If the dam was covered by more 
 
 than one stallion the names of all must be stated, and by 
 which stallion the mare was last covered. If the sire or dam 
 has no name in the Calendar or Stud-boob, such further pedi- 
 gree and description must be added as will clearly distinguish 
 the horse entered from all other horses, and if the j)edigree of 
 the sire or dam be vmknown, such further particulars as to 
 where they were purchased or obtained must be given as will 
 identify them. 
 
 18. The description as in the last rule mentioned must be Name or de- 
 repeated in every entry of the horse until an entry of him by scription in 
 description, with a proposed name, has been published in the ^uos.en.uent 
 " Racing Calendar." In any entry after such publication it 
 
 will be sufficient to enter him by such name without de- 
 scription. 
 
 If a horse be entered with a pro^josed name for the first 
 time in several races closing on the same day, the description 
 need not be added in more than the first of such entries. 
 
 19. AVhenever the name of a horse which has run is Change of 
 changed, his old name as Avell as his new name must be given name. 
 
 in every entry until the change has been published in two 
 Monthly Calendars or the Book Calendar. 
 
 20. A name may bo claimed for a horse, either by entry Similar 
 and publication as mentioned in the foregoing rules, or at any names, 
 time by sending the pedigree to the Registry Office. When a 
 name has been claimed for a horse in either of the above ways, 
 
 any other horse for which the same name is afterwards claimed 
 must be distinguished by the addition of the numerals II. or 
 III. &c., and on tlie first time of entry with numerals, by the 
 names of the sire and dam. If the same name is proposed 
 or claimed for two or more horses at the same time, the order 
 of priority shall be determined by lot by Messrs. Weatherby. 
 Any person entering a horse in contravention of this rule 
 shall be liable to a fine not exceeding 50/. 
 
 21. No assumed name of an owner shall be used in any Assumed 
 subscrij)tion or entry unless such assumed name is duly names of 
 registered, as follows : — owners. 
 
 (i.) The person intending to use an assumed name must 
 register it annually at the Registry Office. A registration 
 continues effectual during the current year. 
 
 (ii.) A person cannot have more than one assumed name 
 registered at the same time, nor can he use his real name in 
 any subscription or entry so long as he has a registered 
 assumed name. 
 
 (iii.) An assumed name may be changed at any time by 
 registering a new assumed name. 
 
558 
 
 APPENDIX. 
 
 Subscriptions 
 are trans- 
 ferable. 
 
 Subscriptions 
 and entries 
 cannot bo 
 struck out. 
 
 Death of per- 
 son who has 
 made a sub- 
 scrijjtion or 
 entry. 
 
 No alteration 
 of entry after 
 closine:. 
 
 Partnership 
 in horses. 
 
 Liability for 
 stakes and 
 forfeits. 
 
 (iv.) A person cannot register as lils assumed name a name 
 Tvliicli lias been already registered by any other person, or the 
 real name of any other person who runs horses in races in 
 such other person's real name. 
 
 (v.) On every registration or change of an assumed name 
 there must be paid at the Kegistry Office, to the credit of the 
 Jockey Club, a fee of twenty-five guineas. 
 
 (vi.) Out of the fees received under this Rule, a percentage, 
 to be fixed from time to time by the Jockey Club, shall be 
 paid to the Bentinck Benevolent Fund, and the remainder 
 shall be carried to the liacing Fund of the Jockey Club. 
 
 22. A person who subscribes to a sweepstakes has the right 
 of transferring the right of entry under any one or more of 
 his subscriptions to any other person or persons. 
 
 23. A subscription cannot be withdrawn, but an entry of a 
 horse under a subscription may, before the time of closing, be 
 altered by substituting another horse. 
 
 24. Subscriptions and all entries or rights of entry under 
 them become void on the death of the subscriber. 
 
 Entries (except entries made under another person's sub- 
 scription) become void on the death of the persons in whose 
 names they are made. 
 
 If either party to a match die the match is off. 
 
 25. No alteration or addition shall be made in any entry 
 after the time fixed for closing except that when a horse has 
 been duly described a name or number may be added. 
 
 In the event of a horse being entered for a race with the 
 wrong age, or an incorrect or imperfect description according 
 to Eule 17, it may be corrected on the papnent of a fine of 
 51. for each entry, provided it be proved to the satisfaction of 
 the Stewards that it was accidental, and provided also that the 
 correction is made, and the fine paid, before the Calendar 
 following that in which the wrong entry appears. 
 
 This liule will allow of an entry being omitted, on the payment 
 of a fine, from a race for which it was not qualified at the 
 time of entry, e.g. a colt for a filly stakes, but will not admit 
 of any correction amounting to the substitution of another 
 animal, which would be of the nature of a post entry. 
 
 The fines under this Rule to go to the winner, unless the 
 winner be the person fined, when it shall go to the second 
 horse. 
 
 26. A horse cannot bo entered in the real or assumed name 
 of any person as his owner unless that person's interest or 
 property in the horse is at least ecj[ual to that of any other one 
 person. 
 
 Part V. — Sialics and For/cits. 
 
 27. A person entering a horse for a race thereby becomes 
 liable for the entrance monev and stake or forfeit. 
 
MISCELLANEOUS. 559 
 
 A subscriber to a sweepstakes is liable for the stake or* 
 forfeit ; but if be transfer the right of entry to any other per- 
 son he is liable only in case of default by the transferee, and 
 in that case he may recover it from the transferee. 
 
 A person taking an entry under another person's subscrip- 
 tion, where forfeit must be declared by a particular time, if he 
 do not declare forfeit by that time, shall be considered to have 
 taken the engagement upon himself, and the original sub- 
 scriber shall cease to be liable. • 
 
 28. Entrance money, stakes and forfeits must be paid in Payment and 
 cash (if required) to the clerk of the course or authorized application 
 stakeholder. If any clerk of the course allow a horse to start ?* _^*'?'|^*^^ ^^'^ 
 in a race without his stake for that race having been paid, 
 
 such clerk shall be liable for it himself. 
 
 Stakes and forfeits in a race belong to the winner, except as 
 otherwise declared in the conditions, and the stakeholder shall 
 render an account to him, or his agent, and pay over all stakes 
 and added money within fifteen days of the conclusion of the 
 meeting. If the race be never run or be void, they shall be 
 returned. 
 
 Entrance money shall be paid into the race-fund of the 
 meeting, except in the case of a sweepstakes where no money 
 or less than 501. is given from the race-fund or other public 
 source, in which case the entrance money shall go to the 
 winner, or to some other horse or horses in the race. 
 
 29. Ahorse shall not start for a race unless there have been Stake, arrears, 
 duly paid before weighing (1) any stake, entrance money or fee ^'^^ jockey's 
 payable in respect of that race ; (2) all arrears due from any . T^"®.^ ^^° 
 person for such horse, or due for the same or any other horse startinf^"^*^ 
 from any person by whom such horse is wholly or partly 
 
 owned, or in whose name or under whose subscription he is 
 entered, and (3) the jockey's fee under Eule 53. 
 
 In this rule " arrears" includes any sums payable for fines, 
 fees, entrance money, stakes, or forfeits in respect of any race 
 at the same or any other meeting in the United Kingdom, and 
 any sum in respect of which a person has been declared a de- 
 faulter : Provided that arrears of forfeits in respect of a meet- 
 ing at any other place than the place at which the race is run 
 shall not be included, unless notice of such forfeits being over- 
 due has been published in the Unpaid Forfeit List or Steeple 
 Chase Forfeit List, or delivered in writing, signed by the party 
 claiming the arrears, to the clerk of the course or stakeholder 
 or to the person indebted, before ten in the evening preceding 
 the race. 
 
 This rule shall apply to arrears at the Curragh and other 
 recognized meetings in Ireland, or at any steej^lechase meeting 
 in the United Kingdom held under the Grand National 
 Steeplechase Eules, or Irish National Hunt Steeple Chase 
 Eules. 
 
560 APPENDIX. 
 
 The Unpaid Forfeit List. 
 
 Unpaid for- 30. (i.) An Unpaid Forfeit List shall be kept at the registry 
 
 feit list. office, and shall be published in the Sheet Calendar after the 
 
 Newmarket July Meeting and again at the conclusion of the 
 Eacing season in every year. It shall include all due and 
 unpaid entrances, stakes, fines, and forfeits which have been 
 notified as hereinafter mentioned, and shall state the real name 
 or names, and also the assumed name or names (if any), of the 
 persons from whom, and the horses (if any) in respect of which 
 the same are due. Entrances, stakes, fines and forfeits which 
 have been so published must be paid directly into the registry 
 office, and until so paid they shall not be removed from the 
 list. 
 
 (ii.) Any person to whom any entrance, stake, fine, fee, or 
 forfeit is payable (whether as an official or otherwise) may (or 
 shall, if he be an official, within a month of the publication 
 of the next Forfeit List) notify the same in writing, signed by 
 him, to the registry office, or to the clerk of the course, and 
 every such statement received by the clerk of the course shall 
 be forthwith transmitted by him to the registry office. 
 
 (iii.) 80 long as the name of a person is in the Unpaid For- 
 feit List he cannot subscribe to any sweepstakes, and no horse 
 can be entered by him or under his subscription for any race, 
 whether acting as an agent or otherwise, and no horse which 
 has been- entered by him, or in his name, or under his subscrip- 
 tion, or of which he is wholly or partly the owner, or which, 
 after his default has been twice published in the Eacing 
 Calendar, shall be proved to the satisfaction of the Stewards 
 to be under his care, training, management, or superintend- 
 ence, shall be qualified to run for any race ; and so long as any 
 horse is in the Unpaid Forfeit List, such horse shall not be 
 entered or run for any race. 
 
 (iv.) A corrected alphabetical Index of the horses and 
 owners in the last Forfeit List and Irish Forfeit List shall be 
 published in the first Calendar of every month during the 
 racing season. Such monthly list shall commence not less 
 than three years before the time at which it is published, and 
 shall be carried down to and include the latest Forfeit List 
 which has been published in the Sheet Calendar as above 
 mentioned. 
 
 The Clerk of the Course at every meeting shall put uj) in 
 his office during such meeting two copies of the last Monthly 
 List for the time being. 
 
 (v.) If any horse which, or the owner of which, is in any 
 Forfeit List be allowed to start the Clerk of the Course shall 
 be fined 10/. 
 
 (vi.) If a horse which, or the owner of which, is in any 
 Forfeit List be entered for any race, the owner of such horse 
 shall be fined 50/. 
 
MISCELLANEOUS. 561 
 
 Part Yl.—The Race. 
 Weighing out and starting. 
 
 31. (i.) A horse sliall not be qualified to run in a race Weighing- out 
 unless Ms name has been notified, as a starter to the clerk of ^'^^ starting, 
 the scales on the day of the race, and his number exhibited 
 one quarter of an hour before the time appointed for the race. 
 If any alteration be made in a number after it has been ex- 
 hibited, the stewards may call upon the owner, trainer, or 
 jockey, for an explanation, and if no satisfactory explanation 
 be given, the owner, trainer, or jockey, may be fined, and the 
 horse shall not be allowed to start nor the jockey to ride again 
 until the fine is paid. 
 
 (ii.) Every jockey who is to ride in the race shall weigh at 
 the appointed or usual place, unless especially excused by the 
 Stewards. 
 
 (iii.) No person shall, without special leave from the 
 Stewards in writing, be admitted to the weighing-room except 
 the owner, trainer and jockey, or other person having the care 
 of a horse engaged in the race. 
 
 (iv.) If a jockey intend to carry overweight exceeding by 
 more than two pounds the weight at which his horse is to run, 
 he must declare the amount of such overweight. The declara- 
 tion must be made to the clerk of the scales not later than 
 twenty minutes before the time appointed for the start ; and 
 the clerk shall exhibit the amount of such extra weight with 
 the number of the horse. 
 
 (v.) If a horse carry more than two pounds overweight, 
 which has not been duly declared, he is disqualified, unless the 
 Steivards he satisfied that such excess of iceight has been caused 
 hy ivet weather. 
 
 (vi.) Any overweight exceeding two pounds which has been 
 carried, whether it has been duly declared or the horse has 
 been disqualified, shall be published in the "Racing Calen- 
 dar," and the clerk of the scales shall send a return thereof to 
 the Registry Office. 
 
 (vii.) Every trainer shall have his horse at the post, ready 
 to start, at the time appointed by the Stewards ; and every 
 jockey is to be there, ready to start at the same time. Every 
 trainer or jockey making default herein shall be fined. 
 
 (viii.) The horses must be started by the official starter or 
 his authorized deputy or substitute. No horse when once 
 under the starter's hands shall be allowed to go back and 
 correct his weight, unless some accident has occurred to him. 
 
 (ix.) The starter may give all such orders and take all such 
 measures as are necessary for securing a fair start ; and in 
 particular he may, if he think it necessary, order the horses 
 to be drawn up in a line as far behind the starting post as he 
 thinks necessary. 
 
 0. 
 
562 
 
 APPENDIX. 
 
 Crossing, 
 jostling, &c. 
 in the race. 
 
 Running over 
 again. 
 
 Weighing in. 
 
 (x.) The horses must be started from a walk. If the starter 
 allow a start to take place in front of the starting post, the 
 start is void, and the horses must be started again, and the 
 starter shall forfeit a sum not exceeding 50/. 
 
 (xi.) The horses shall (so far as is practicable) be drawn up 
 before the start in an order (reckoned from the whip hand) to 
 be determined, when the Stewards think fit, by lots to be 
 drawn by the jockeys at the time of weighing out. 
 
 (xii.) The person appointed to start the horses shall mark in 
 his list the time when the horses in each race actually started ; 
 and if there have been any false starts, the first of them shall 
 be considered as the time of starting for that race, and he ' 
 shall make a report thereof to the Stewards in the afternoon 
 of the day the races are run. And if any delay shall have 
 taken place, he shall state by whom, or by what cause, the 
 delay was occasioned. 
 
 (xiii.) Everj^ horse which comes uj) to the post in time to 
 start shall be liable for his whole stake. 
 
 ' Rtmninrj. 
 
 32. (i.) A horse which crosses another is disqualified, unless 
 it be proved that he was two clear lengths ahead of the other 
 when he crossed. 
 
 (ii.) If a horse or his jockey jostle another horse, or the 
 jockey of another horse, the jockey which jostles the other is 
 disqualified, unless it be proved that the jostle was wholly 
 caused by the fault of some other jockey, or that the other 
 horse or his jockey was partly in fault. 
 
 (iii.) If a horse run the wrong side of a post he must turn 
 back and run the course from the post at which he left it. 
 
 33. If a race has been run by all the horses at wrong 
 weights, or a wrong distance, or when the Judge is not in the 
 box, the Stewards shall order it to be run after the advertised 
 time of the last race of the same day. 
 
 Weigh'mg in. 
 
 34. (i.) Every jockey must, immediately after pulling up, 
 ride his horse to the place of weighing, and there immediately 
 dismount and be weighed by the clerk of the scales : Provided 
 that, if a jockey be prevented from riding to the place of 
 weighing by reason of accident or illness, by which he or his 
 horse is disabled, he may walk or be carried to the scales. 
 
 (ii.) If a jockey do not weight in, or be short of weight, or 
 be guilty of any fraudulent practice with respect to weight or 
 weighing, or dismount before reaching the scales, or touch 
 (except accidentally) any person or thing other than his own 
 ec[uipments before weighing in, his horse is disqualified, un- 
 less he can satisfy the Stewards that he was justified by extra- 
 ordinary circumstances. 
 
MISCELLANEOUS. 563 
 
 (iii.) It is optional for the jockey to weigh out or in with 
 his bridle, and the clerk of the scales shall allow one pound 
 for a curb or double bridle ; but no weight shall be allowed 
 for a snaffle bridle unless it is put into the scales before the 
 horse is led away, and no whip or substitute for a whip shall 
 be allowed in the scales. 
 
 If a horse run in a hood or clothing it must be put into the 
 scale and included in the jockey's weight. 
 
 The clerk of the scales shall always put 21b. extra into the 
 scale to j)rove that the horse has not carried too much weight 
 under Eule 31 (v.). 
 
 Dead Heats. 
 
 35. (i.) A dead heat for the first place shall be run off after Dead heats, 
 the last race on the same day (except by special permission of 
 the Stewards) unless the owners agree to divide. The other 
 horses shall be deemed to have been beaten, but they shall be 
 entitled to their places (if any) as if the race had been finally 
 determined the first time. 
 
 (ii.) If a dead heat be run by two or more horses for second 
 or any lower place in a race, the OY\'ners shall divide, subject 
 to the provisions of Part VII., where the winner is objected 
 to, and if they cannot agree as to which of them is to h-ave a 
 cup or other prize which cannot be divided, the question shall 
 be determined by lot by the Stewards. 
 
 (iii.) When owners divide they shall divide equally all the 
 moneys or other prizes which any of them could take if the 
 dead heat were ruu off. 
 
 (iv.) Horses running a dead heat for a race or place shall be 
 deemed winners of the race or place until the dead heat is run 
 off or the owners agree to divide, and if the owners agree to 
 divide, each horse which divides shall be deemed a winner of 
 the race or place for which he divides. 
 
 Second Money. 
 
 3G. Any money or prize which by the conditions is to go to Second 
 the horse placed second, or in any lower place in the race, money, 
 shall, if the winner has Avalked over or no horse has been so 
 placed, bo dealt with as follows, namely : — 
 
 (i.) If it be part of the stakes or plate, it shall go to the 
 •v\T.nner ; or 
 
 (ii.) If it was to be given as a separate donation from the 
 race fund, or any other source, it shall not be given at all ; or 
 
 (iii.) If it is entrance money for the race, it shall go to the 
 race fund of the meeting. 
 
 Part YII. — Objections and Cotnplaints. -r -, , , . 
 
 Judge s deci- 
 
 37. The determination of a judge, declaring a horse to have sion final, 
 
 won or to be entitled to a place shall be final, unless an snbject to 
 
 Q objections. 
 
564 APPENDIX, 
 
 objection is made and allowed on the ground of disqualifi- 
 cation : Provided that this Eule shall not prevent a judge 
 from correcting any mistake. 
 Objections. (i.) Every objection must be made by the owner, jockey or 
 
 groom of some other horse engaged in the same race [or by 
 the starter], or by a Steward, and must be made to one of the 
 Stewards, or to the Judge, clerk of the course or clerk of the 
 scales. The person to whom it is made may require it to be 
 put in writing and signed. 
 
 (ii.) If an objection to a horse engaged in a race be made 
 not later than half -past ten in the morning of the day for the 
 race, the Stewards may require his qualihcatiou to be proved 
 before the race ; and in default of such proof being given to 
 their satisfaction, they may declare him disqualified. 
 
 (iii.),An objection to a horse, on the ground of a cross or 
 jostle, or of his not having run the proper course, or of any 
 other matter occurring in the race, must be made within a 
 quarter of an hour after the finish. 
 
 (iv.) An objection on the ground of fraudulent, or wilful 
 mis-statement or omission in the entry under which a horse 
 has run, or on the ground that the horse which ran was not 
 the horse which he was represented to be in the entry or at 
 the time of the race, or was not of the age which he was 
 represented to be, or on the ground that he is disqualified by 
 reason of any default entered in tlie Unpaid Forfeit List, may 
 be received at any time within twelve months after the race. 
 
 (v.) In any other case an objection shall be made before the 
 conclusion of the meeting. 
 
 (vi.) Every objection shall be determined by the Stewards, 
 and their determination shall (if they are not the Stewards of 
 the Jockey Club) be subject to appeal to the Stewards of the 
 Jockey Club, through the Stewards of the meeting and with 
 their consent and that of the Stewards of the Jockey Club, 
 and not otherwise. 
 
 (vii.) If an objection to a horse which has won or been 
 placed in a race be declared valid, the horse shaU be regarded 
 as having been last in the race, and the other horses shall 
 take positions accordingly. 
 
 (viii.) AVhen a dead heat is run for second place, and an 
 objection is made to the winner of the race, if such objection 
 be declared valid in time for the dead heat to be run off on 
 the day of the race, the Stewards may direct it to be run off 
 accordingly. Otherwise the horses which ran the dead heat 
 shall divide. 
 
 (ix.) Every objection which cannot be decided by the 
 Stewards during a meeting must be made in writing and 
 lodged with the clerk of the course. 
 
 (x.) An objection made in writing cannot be withdi-awn 
 without leave of the Stewards. 
 
MISCELLANEOUS. 565 
 
 (xl.) All costs and expenses in relation to determining an 
 objection shall be paid by the person decided against. 
 
 (xii.) If the Stewards decide an objection to be frivolous 
 they may order the person making it to pay a fine not ex- 
 ceeding 201. to the Bentinck Benevolent Fund. 
 
 38. Pending the determination of an objection, any money Effect of 
 or prize which the horse objected to may have won or may pending 
 win in the race shall be withheld until the objection is deter- objection, 
 mined, and any forfeit payable by the owner of any other 
 
 horse shall be paid to and held by the clerk of the course for 
 the person who may be determined to be entitled to it. 
 
 When any race is in dispute both the horse that came in 
 first and any horse claiming the race shall be liable to all the 
 penalties attaching to the winner of that race till the matter is 
 decided. 
 
 39. (i.) The Stewards shall have power at any time, and Stewards may 
 either upon or without objection made, to order an examina- order ex- 
 tion by such person or persons as they think fit, of the mouth '^^i^ation 
 
 of any horse entered for a race, or who has run in a race. proofs. 
 
 If a horse be declared to be of the wrong age, the expense 
 of such examination shall be paid by his owner. Otherwise, 
 it shall be paid by the person (if any) at whose request the 
 examination is ordered, or out of the race fund of the meeting, 
 as the Stewards direct. 
 
 (ii.) The Stewards shall also have power to call on any 
 person in whose name a horse is entered to produce proof that 
 the horse entered is not the property either wholly or in part 
 of any person whose name is in the Unpaid Forfeit List or 
 otherwise disqualified, or to produce proof of the extent of his 
 interest or property in the horse, and in default of such proof 
 being given to their satisfaction they may declare the horse 
 disqualified. 
 
 Pabt VIII. — Special Conditions {claiming and selling Races : 
 Produce Races : Post Races : Hanclicajys : Sale tvith E71- 
 gagements). 
 
 Horses entered to he sold. 
 
 40. Any horse running for any race "to be sold," shall, if 
 the winner, be liable to be claimed for the selling price, and 
 if it be a condition of the race that the winner is to be sold by 
 auction the sale shall take place immediately after the race, 
 and the surplus over the selling price shall be divided between 
 the owner of the second horse and the race fund of the meet- 
 ing. If sold the horse shall not leave the place of sale until 
 authorized by the clerk of the course to do so ; and if the 
 horse be not paid for, or the clerk of the course satisfied with 
 the security, within a quarter of an hour, he may order the 
 horse to be put up a second time, and the purchaser at the 
 
566 
 
 APPENDIX. 
 
 Si^ecial Rule 
 where horse 
 objected to. 
 
 Special Rule 
 where dead 
 heat. 
 
 first sale shall be resjionsible for any deficiency arising from 
 the second sale, and shall be declared a defaulter untU it is 
 paid. 
 
 All other horses running to be sold may be claimed for the 
 selling price and the amount of the stakes or plate by the 
 owners of horses running in the race. 
 
 In no selling race shall the lowest selling price be less than 
 50 sov. 
 
 Owners of horses placed shall have priority in the order of 
 their places, and if the owners of two or more horses having 
 equal rights claim, they are to draw lots. The owner of the 
 winner has the last claim. 
 
 No person can claim more than one horse. 
 
 Every claim must be made to the clerk of the scales within 
 a quarter of an hour after the race. 
 
 The price of every horse claimed or sold, or bought in, must 
 be paid to the clerk of the course, and an order given by him 
 for the delivery of the horse. 
 
 In the case of a horse being claimed, if the price be not 
 paid before seven o'clock in the evening of the day of the 
 race, the claimant forfeits his right. If none of the other 
 persons entitled accept the horse, the owner may insist on the 
 first claimant taking and paying for it, and if he refuse or 
 neglect to do so, he shall bo declared a defaulter in respect of 
 the price. If a horse walk over for a selling race he shall 
 not be liable to be sold unless the added money be given. 
 
 Provision in case of Objection or Dead Heat. 
 
 41. The foregoing Rules relating to claiming and selling 
 races shall be subject to the following provisions in cases 
 ^^here a horse is objected to under the provisions of Part VII. 
 of these Eules : — 
 
 (i.) If the objection has not been made until after the horse 
 has been claimed or bought, the person who claimed or bought 
 him shall, if the objection be declared valid, have the option 
 of returning him or retaining him at the price of a beaten 
 horse. 
 
 (ii.) If the objection be made before the horse has been 
 claimed or bought, the time for delivering him is thereby 
 postponed until such time after the determination of the 
 objection as the Stewards appoint, and if the objection be 
 declared valid, the person who has claimed or bought him 
 shall have the same option as in the last-mentioned case. 
 
 42. If a dead heat be declared for the first or any other 
 place in a race, the time for claiming or selling the horses 
 running the dead heat is thereby postponed until the dead 
 heat is run off, as the Stewards appoint. In case of a divi- 
 sion, each of the horses dividing is a winner for the j)urposes 
 of these Eules relating to claiming and selling, and any 
 
MISCELLANEOUS. 567 
 
 surplus (in the case of a selling race) shall be divided between 
 those horses and the Eace Fund. 
 
 Produce Races. 
 
 43. (i.) A produce race is one for which horses are named Produce 
 by whose produce the race is to be run. Races. 
 
 (ii.) The produce is entered by entering the dam and sire, 
 or sires; 
 
 (iii.) If the produce of a mare be dropped before the 1st of 
 January, or if there be no produce, or if the produce be dead 
 when dropped, the entry of such mare is void, and the 
 entrance money (if any) shall be returned. 
 
 (iv.) Conditions of a produce race referring to allowances 
 to the produce of untried horses, extend only to the produce 
 of horses whose produce never won- a recognized race in any 
 country up to the day previous to that fixed for claiming 
 allowances, and any such allowance must be claimed before 
 the expiration of the time for naming. 
 
 Post Races. 
 
 44. A post race is a race for which a subscriber must enter Post Races. 
 two or more horses, and may run any one or more of them, 
 
 as the conditions prescribe. 
 
 Handicaps. 
 
 45. (i.) A "handicap" is a race in which the weights Handicarps. 
 which the horses are to carry are to be adjusted after the 
 
 time limited for entering or naming according to the handi- 
 capper's judgment of the merits of the horses, for the purpose 
 of equalizing their chances of winning. 
 
 (ii.) In a handicap (other than a free handicap) the horses 
 must be entered in the usual way, and the person entering a 
 horse becomes liable for the stake or forfeit whether he 
 accepts or not. 
 
 (iii.) A free handicap is one in which no liability for stake 
 or forfeit is incurred until acceptance, and no entry need be 
 made ; and acceptance shall be considered as equivalent to an 
 entry and as a representation that the horse is of the age and 
 description stated in the list of weights ; and if the horse be 
 not in fact of that age and description he shall be disqualified. 
 
 There shall not be a greater difference than 4st. 71b. between 
 the highest and lowest weight in a handicap to which there is 
 a second forfeit. 
 
 Sale with Engagements. 
 
 46. "When a horse is sold with his engagements, or any Liability for 
 part of them, the seller cannot strike the horse out of any of engagements 
 such engagements, and he remaiils liable for the amount of ^'^ liorses sold. 
 the forfeits in each of the engagements, but he may, if 
 
668 APPENDIX. 
 
 compelled to pay tliem by tlie purchaser's default, place the 
 forfeit on the Forfeit List, as due from the purchaser to 
 himself. 
 
 In all cases of sale hy private treaty, the written acknow- 
 ledgment of both parties that the horse was sold with the 
 engagement is necessary to entitle the seller or buyer to the 
 benefit of this E,ule, and if certain engagements be specified 
 it is to be understood that those only are sold with the horse ; 
 but when the horse is sold by public auction the advertised 
 conditions of the sale are sufiicient evidence, and if certain 
 engagements only be specified, it is to be understood these 
 only are sold with the horse, and if he has been claimed as 
 the winner of a race of which it was a condition that the 
 winner was to be sold with his engagements, this also is 
 sufficient. 
 
 "When a person is entitled by purchase or otherwise to start 
 for any engagement a horse which was entered by another 
 person, and he is prevented by these Rules from starting the 
 horse without paying forfeits or fees to which he would 
 not otherwise be liable, he may, if he pay such forfeits and 
 fees, start the horse and place the forfeits or fees on the 
 Forfeit List, with the names of the horses in respect of which 
 they are due as due to himself. 
 
 Paet IX. — Miscellatieous. 
 
 Foreign Horses. 
 
 Foreign cer- 47. A horse foaled out of the United Kingdom shall not be 
 
 titicates, &c. qualified to start for any race imtil there have been deposited 
 
 at the Registry Office (1) such a foreign certificate, and 
 
 (2) such a certificate of age as are next mentioned, that is to 
 
 say:— 
 
 (i.) The foreign certificate must state the age, pedigree and 
 colour of the horse, and any mark by which it may be distin- 
 guished, and must be signed by the secretary or other officer 
 of some approved racing club of the country in which the 
 horse was foaled, or by some magistrate, mayor or public 
 officer of that country. 
 
 The Stewards of the Jockey Club may from time to time 
 approve any racing club for the purposes of this Rule, and 
 prescribe the magistrate, mayor or public officer by whom a 
 foreign certificate must be signed. They may also require 
 any further proof or confirmation in any particular case, and 
 may declare any horse disqualified in default thereof. 
 
 (ii.) The certificate of age must be signed by a veterinary 
 surgeon in the United Kingdom, approved for this purpose 
 by the Stewards of the Jockey Club either by general order or 
 in the particular case. 
 
 Note. — The Stewards of the Jockey Club have approved 
 
MISCELLANEOUS. 569 
 
 generally of certificates given by the Eoyal College of 
 Veterinary Surgeons, and by persons holding the Highland 
 and Agriculture Society's dij)loma. 
 
 A horse which has been out of the United Kingdom (other- 
 ■wise than as a foal at the foot of his dam) before having run 
 for any public plate or sweej)stakes in Great Britain, shall not 
 be qualified to start for any public race until a certificate of 
 age signed as in the last Eule mentioned has been deposited 
 at the Eegistry Office. 
 
 Corrupt Practices and Disqualifications. 
 
 48. (i.) If any person corruptly give or offer any money, Penalties 
 share in a bet, or other benefit to any person having official for corrupt 
 duties in relation to a race or to any jockey ; or ?/^^°r!^^*^*^f °" 
 
 (ii.) If any person having official duties in relation to a 
 race, or any jockey, corruptly accept or offer to accept any 
 money, share in a bet, or other benefit ; or 
 
 (iii.) Wilfully enter or cause to be entered or to start for 
 any race a horse which he knows to be discj^ualified ; or 
 
 (iv.) If any person be detected watching a trial, or proved 
 to the satisfaction of the Stewards of the Jockey Club to have 
 emploj'ed any person to watch a trial, or to have obtained 
 surreptitiously information respecting a trial from any person 
 or persons engaged in it, or in the service of the owner or 
 trainer of the horses tried, or respecting any horse in training 
 from any person in such service ; or 
 
 (v.) If any person be guilty of any other corrupt or fraudu- 
 lent practices on the Turf in this or any other country ; 
 
 Every person so offending shall be warned off Newmarket 
 Heath and other places where these Eules are in force. 
 
 49. When a person is warned off Newmarket Heath and so Disqualifi- 
 long as his exclusion continues, he shall not be qualified, cation for 
 whether acting as an agent or otherwise, to subscribe for or to corrupt prac- 
 enter or run any horse for any race either in his own name or ^^^' 
 
 in that of any other person, and any horse of which he is 
 wholly or partly the owner, or which after the fact of his being 
 warned off has been twice published in the Eacing Calendar, 
 shall be proved to the satisfaction of the Stewards to be under 
 his care, training, management, or superintendence, shall be 
 disqualified. 
 
 If a person be so excluded for any fraudulent practice in 
 relation to a particular horse wholly or partly belonging to 
 him, such horse shall be perpetually disqualified for all races, 
 and such person shall return all money or prizes which such 
 horse has won in any race at any meeting. 
 
 50. If any person be reported by the Committee of the Disqualifi- 
 Subscription Eooms at Newmarket or at Tattersall's as being cation for 
 a defaulter in bets, he shall be disqualified as in the last Eule ^^^^^t in 
 mentioned until his default is cleared. ® ' 
 
570 
 
 APPENDIX. 
 
 Fines, 51. All fines shall be paid to the Bentinck Benevolent 
 
 Fund. 
 
 Omission of Conditions. 
 
 Omissions, 52. (f.) When any match or sweepstakes is made, and no 
 
 how supplied, weight mentioned, the horses shall carry 8st. lOlb. each, and if 
 of weight; any weight be given the highest weight shall be 8st. 121b. 
 of course • (ii-) When any match or sweepstakes is made, and no 
 
 course mentioned, the course shall be as follows : — 
 
 If at Newmarket. 
 
 If two years old, six furlongs T.Y.C. 
 
 If three years old, one mile E.M. 
 
 If four years old, two miles D.I. 
 
 If five years old, or upwards, four miles .... B.C. 
 
 And if the horses be of different age, the course shall be fixed 
 by the age of the youngest, 
 of day. (iii.) If no day be mentioned for a race, it shall be run on 
 
 the last day of the meeting, unless otherwise agreed by aU the 
 parties engaged. 
 
 JocTicys' Fees. 
 
 Jockeys' fees. 53. In the absence of special agreement the fee to a winning 
 jockey shall be five guineas, and to a losing jockey three 
 guineas, and no further charge except for expenses shall be 
 allowed. 
 
 All jockeys' fees shall be paid to the stakeholder or clerk 
 of the course at the same time as the stakes, as by Rule 28. 
 
 In the absence of special agreement, a jockey who accepts 
 a retainer cannot terminate it otherwise than by three months' 
 notice in writing, ending at the close of a season ; and failing 
 such notice, his retainer continues for the next season, and so 
 on from season to season until duly terminated by such notice 
 as above mentioned, provided the same or any agreed retain- 
 ing fee is paid in advance in respect of each season before the 
 commencement thereof. 
 
 Employers retaining the same jockey have precedence ac- 
 cording to the priority of their retainers. A retainer which 
 is continued as above mentioned has priority as from the date 
 of its first commencement. 
 
 If a jockey be prevented from riding by susj)ension for 
 fraudulent practices or other misconduct, any person who has 
 retained him may cancel the retainer. 
 
 The Stewards of the Jockey Club shall have power to 
 release a jockey from his retainer for any cause aj)pearing 
 to them sufficient. 
 
 No jockey shall ride in races on Newmarket Heath, or 
 elsewhere where these Rules are in force, until he shall have 
 obtained a licence from the Stewards of the Jockey Club, on 
 
MISCELLANEOUS. 571 
 
 application at tlio Eegistry Office, but no ridor will bo required 
 to take out a licence until the last day of the week in which 
 he shall have ridden a winner for the first time. 
 
 Every jockey shall, on application for a licence, furnish 
 Messrs. Weatherby with his full name and address. A list 
 of the licensed jockeys shall be published annually 'in the 
 Eacing Calendar. 
 
 Any rider who shall infringe these Eules will be reported 
 to the Stewards of the Jockey Club, who may suspend him 
 from riding. 
 
 Any owner, or trainer, or both, who shall knowingly employ 
 an unlicensed jockey, shall be fined not less than 25/. each. 
 
 54. No trainer shall engage any lad or other stable servant 
 without previously referring to his last employer in England, 
 France, Ausb-ia or Hungary, and receiving a satisfactory reply 
 in writing. 
 
 Any trainer infringing this Eule and continuing to employ 
 such boy after notice has been served on him, shall not be 
 allowed to train or run horses where these Rules are in force ; 
 and any lad leaving his master before the terms of his en- 
 gagement are complete shall be disqualified from riding in 
 any race. 
 
 Any boy prevented from obtaining employment by this Kulo 
 shall have the right of appeal to the Stewards of the Jockey 
 Club. 
 
 Every jockey at the termination of his apprenticeship is 
 free to form engagements for himself, irrespective of any 
 which may have been made for him during such apprentice- 
 ship. 
 
 Calculation of Time. 
 
 55. "When the last day for doing anything in relation to a Sundays 
 race falls on a Sunday, it may be done on the following Monday, omitted, 
 unless the race to which such act relates is appointed for that 
 
 day, in which case it must be done on the previous Saturday. 
 
 Foreign Meetings. 
 
 56. The Stewards of the Jockey Club shall cause a list to Foreign 
 be from time to time published and kept, as they think fit, of mceting-s. 
 meetings and races in countries other than Great Britain, 
 
 which are to be deemed recognized meetings and races for 
 the purposes of these Rules. 
 
 Neiv Rules. 
 
 57. No new Eule of Eacing can be passed, nor can any New Rules, 
 existing Eule be rescinded or altered without being previously 
 advertised three times in the "Sheet Calendar," and notice 
 
 given of the meeting of the Jockey Club at which it is to be 
 proposed ; and no now Eule, or repeal or alteration of a Eule, 
 shall take effect until it has been confirmed at the meeting 
 
o<: 
 
 APPENDIX. 
 
 ensuing that at "which it was passed, and until it has been 
 twice published in the Sheet Calendar. Any owner of race- 
 horses or persons affected by such new Rule, rescission or 
 alteration, may, before it is made, petition the Jockey Club 
 through the Secretary. All such petitions shall be laid before 
 the meeting before the question is put. 
 
 Mode of 
 annual elec- 
 tion. 
 
 In case of 
 death or 
 resignation. 
 
 Substitute 
 for absent 
 Stewards. 
 
 The Stewards 
 have power 
 — to appoint 
 officers : 
 
 to fix time of 
 startinj? : 
 
 to manage 
 the Course 
 and Exercise 
 ground : 
 
 to settle dis- 
 putes at 
 Newmarket : 
 
 RULES AND ORDERS OF THE JOCKEY CLUB. 
 
 [These are only applicable to races run at Newmarket."] 
 
 Respecting the Steivards. 
 
 1 . The three Stewards uf the Jockey Club shall be con- 
 tinued in their office till the next annual financial meeting 
 (which takes place in the Craven) when the senior Steward 
 shall vacate after settling the accounts made uj) to the 31st of 
 December preceding, and shall then name a member of the 
 Jockey Club to succeed him, subject to the approbation of the 
 Members of the Jockey Club then present, and at every sub- 
 sequent financial meeting the senior Steward shall, in like 
 manner, retire and propose his successor. 
 
 2. If any of the Stewards shall die or resign, the remaining 
 Stewards may appoint a member of the Club to succeed the 
 deceased or declining Steward, but such nomination shall be 
 notified to the Club at the first general meeting, and if 
 the appointment meet their approval, the said member shall 
 remain in office until the expiration of his predecessor's time. 
 
 3. AVhen only one Steward is present, and neither of the 
 absent Stewards shall have appointed a substitute, the member 
 of the Jockey Club present who has last served the office shall 
 act ex officio. 
 
 4. The three Stewards shall have the power of appointing all 
 the public officers and the servants of the Club ; the Keeper of 
 the Match-book to receive the stakes and collect the entrance- 
 money, and all other funds belonging to the Jockey Club ; 
 and the Stewards shall produce an account of the funds and 
 disbursements of the Club at the annual financial meeting, 
 and they shall be responsible to the Club for the correctness 
 of the annual accounts, and for all the money collected as 
 belonging to the Jockey Club. 
 
 5. The Stewards shall fix the hour of starting for each race 
 at or before nine o'clock in the evening preceding the day of 
 running, and notice of the time of starting is to be fixed up in 
 the Coffee-room immediately afterwards. 
 
 6. The Stewards have full power to make such regulations 
 as they may think proper in regard to the Course and Exer- 
 cising-ground. 
 
 7. All disputes relating to racing at Newmarket shall be 
 determined by the three Stewards ; if only two Stewards be 
 
MISCELLANEOUS. 573 
 
 present they shall fix upon a third person, being a member of 
 the Club, in lieu of the absent Steward, but the Stewards, if 
 they think fit, may call in any other members of the Jockey 
 Club to their assistance, or may refer the case to a general 
 meeting, if the importance or difficulty of the matter in dis- 
 pute shall aj)pear to them to require it. The witnesses ex- 
 amined shall be required to sign their evidence, and if either 
 party desire to have a short-hand writer engaged to take down 
 the evidence, the Stewards may (if they think proper) engage 
 a writer at the exj)ense of the person making the request. 
 
 8. If any dispute arising elsewhere shall be referred to the may decide 
 Stewards of the Jockey Club, and they shall think fit to take cases referred 
 it into consideration, the matter must relate to horse-racing, to ^"ein from 
 and be sent by the Stewards of the Meeting where the matter ° ^^ ^ ^^^^ ' 
 in question occurred. 
 
 9. The Jockey Club and the Stewards thereof take no cog- not to decide 
 nizance of any disputes or claims with respect to bets. betting cases : 
 
 10. The Stewards have a discretionary power to warn any may warn off 
 person off the Eace-course at Newmarket, or any premises t^'^ Course : 
 belonging to the Jockey Club, and in case of such notice being 
 disregarded, to take legal proceedings against the offenders. 
 
 1 1 . All meetings of the Club shaU be called by the Stewards to call Meet- 
 at their discretion. Notice of Meetings at Newmarket for the ^^S^ of t^e 
 transaction of general business, and the days upon which they Club. 
 
 are to be held, must be given in the Sheet Calendar published 
 during the previous week. 
 
 Meetings for the election of candidates for the New Rooms 
 and Coffee Eoom may be called by a notice in writing, which 
 must be put up in the Coffee Eoom the day preceding such 
 meeting. 
 
 All meetings at Newmarket shall be held about an hour 
 after the last race of the day. Special meetings for the elec- 
 tion of Honorary Members of the New Eooms, may be held, 
 without notice, at any time during a Newmarket week. 
 
 12. If a member of the Jockey Club shall impugn or object 
 to any act or decision of the Stewards, he shall give notice of 
 it in writing to the Keeper of the Match-book, who will im- 
 mediately request the Stewards to fix an early day to assemble 
 the members for the purpose of hearing the objection. 
 
 Upon the request of not less than twenty members given in 
 writing to the Keeper of the Match-book, the Stewards shall 
 call a General Meeting of the Jockey Club in London, within 
 twenty-eight days of such requisition being jDresented. 
 
 13. The Stewards of the Jockey Club are ex officio Stewards Act atEpsom, 
 of Epsom, Ascot, and Goodwood. Ascot, and 
 
 Goodwood. 
 
 Respecting the Admission of New Members. 
 
 14. The election of Members for the Jockey Club, New To be by 
 Eooms, and Coffee Eoom shall be by ballot. Ballot. 
 
574 
 
 APPENDIX. 
 
 Ballots may take place during any of the Newmarket Meet- 
 ings, and must be lield at a Greueral Meeting of tke Club. 
 Nine Members at least shall ballot, and two black balls shall 
 exclude ; but for the New Kooms and Coffee Room, when 
 eighteen Members vote, there must bo three black balls to ex- 
 clude. 
 
 The number of Members for the New Eooms are limited to 
 280, the Stewards having the power to propose special names 
 for election to exceed that number. 
 For the 15. For the Jockey Club, each candidate must be proposed 
 
 Jockey Club, jm^i seconded by two Members of the Club. Notice of his 
 being a candidate must be given at a meeting previous to 
 that in which the ballot is to take place, or in the Calendar 
 published during the week preceding the ballot. The name 
 of the candidate, as well as the day of the meeting, must be 
 put up in the Coffee Room on the Monday preceding the ballot. 
 Members of the Jockey Club being abroad for two or more 
 whole years from the 1st of January, shall not be liable for 
 their subscription during their absence. Honorary Members 
 have not the power of voting at meetings of the Club. 
 
 16. A member of the Jockey Club may be admitted a 
 Member of the New Eooms without ballot, by applying to 
 Mr. AVeatherby, Keeper of the Match-book, and paying the 
 same sum for his admission, and the same subscrijption, as 
 are required of Members chosen by ballot. 
 
 17. For the New Eooms and Coffee Eoom each candidate 
 must be proposed and seconded by a Member of the Jockey 
 Club, and the name of the candidate, with his usual place of 
 abode, as well as the name of the Member proposing him, 
 must be x^iit up in the Coffee Eoom on the dav preceding the 
 Ballot. 
 
 Honorary Members of the New Eooms are elected for the 
 current year only, and shall not he liahle for amj admission fee, 
 hut for tlic suhscription only for that year. 
 
 ]\Ienihers ahroad from the 1st of January to the end of the 
 year, on giving notice, shall continue to he Memhers icithout 
 paying suhscription. 
 Arrears of 18. A person, though chosen, shall not be considered as a 
 
 subscription. Member of any of these Clubs until he shall have paid the 
 usual sums for the admission and subscription of a new 
 Member. And the name of every Member whose subscrij^tion 
 shall be in arrear for one year shall be placed over the 
 chimney-piece in the New Eooms and in the Coffee Eoom at 
 Newmarket, in the Craven Meeting in each year. And if 
 such arrear be not paid at the end of the following Spring 
 Meetings, he shall cease to be a Member, and shall not be 
 again admitted as a Member until his arrears bo paid, and 
 until he be again chosen by ballot. 
 
 If any Member of the Eooms or Stands at Newmarket 
 
 For the New 
 Eooms aud 
 Coffee -room. 
 
MISCELLANEOUS. 575 
 
 sliall leave his bill for liouseliold expenses unpaid two months 
 after tlie same sliall have been delivered to him, the Keeper 
 of the Rooms is to report his default to the Stewards, who 
 will cause notice to be sent to him, that if it be not cleared by 
 a time to bo mentioned in the said notice (not to exceed three 
 months), his name will bo erased from the list of Members, 
 and he will be warned off the Heath. 
 
 19. Gentlemen not Members of the New Eooms or Coffee Admission to 
 Room may be admitted to the Stands on Newmarket Heath, the Stands. 
 for any one meeting on the nomination of the Stewards, pro- 
 vided that they be ballotted for in the same manner as the 
 Members of the New Eooms at the next ensuing meeting of 
 
 the Club. 
 
 20. If any Member of the Jockey Club, or of the New 
 Kooms or Coffee Eoom at Newmarket, should appear in the 
 published Forfeit List as a defaulter for stakes or forfeits, or 
 be reported by the Committee of the Subscription Eooms at 
 Newmarket or at Messrs. Tattersall's, as being a defaulter for 
 bets lost on horse racing, the Stewards shall cause notice to 
 be sent to him that if his default be not cleared by a time to 
 be stated in the said notice (not to exceed three months) his 
 name will be erased from the list of Members ; and if a Member 
 of any of these Clubs should be convicted of fraudulent prac- 
 tices on the Turf, or should compound with his creditors, ho 
 shall cease to be a Member. 
 
 Trials. 
 
 21. The day, with respect to the engaging of the ground How to en - 
 for trials, is divided into five periods, from the first day of S^°^ ^^^ 
 the Craven Meeting to the last day of the Houghton Meet- S"^^"^"^' 
 ing, viz., from five to seven o'clock, and from seven to eight 
 
 in the morning ; from one to half-past two, from half-past 
 two till four, and from four till five in the afternoon. During 
 the rest of the year it is divided into three periods — viz., 
 previous to nine in the morning, from one to half -past three, 
 and after half -past three in the afternoon. 
 
 No trainer shall have the ground for trying horses more 
 than one portion of the morning and one portion of the after- 
 noon in the same week, and trainers having less than ten 
 horses shall be allowed to have the ground only for one period 
 of time. A trainer not having more than five horses in train- 
 ing can only have his name down once at the same time ; 
 a trainer not having more than ten horses only twice ; and a 
 trainer with more than ten only three times. 
 
 Notice for engaging the ground shall, at least one day 
 before the day it is used, be entered in a book to be kept for 
 that purpose at the Keeper of the Match-book's Ofiice in New- 
 market. And no notice or warning shall be deemed sufficient 
 unless given as before directed. 
 
676 APPENDIX. 
 
 For the future tlie ground will be kept clear during trials by 
 a person appointed by the Stewards, unless he is requested to 
 retire by the owner or trainer of the horses being tried. 
 
 The Challenge Cup and Whiji. 
 
 The Cup. 22. The Cup may be challenged for on the Tuesday or 
 
 AVednesday in the July Meeting in each year, to be run for 
 over the B.C. on Thursday in the Houghton Meeting follow- 
 ing, by horses, &c., the property of Members of the Jockey 
 Club or of the rooms at Newmarket ; four years old carrying 
 8st. 71b. five years old, 9st. 1 lb. six years old and aged, 9st. 41b. 
 Each person, at the time of challenging, is to subscribe his 
 name to a paper to be hung up in the Coffee-room at New- 
 market, and deliver to the Keeper of the Match-book the 
 name or description of the horse, &c. sealed up, which shall 
 be kept till six o'clock on the Saturday evening of that week ; 
 and if not accepted, or only one challenger, to be returned 
 unopened ; but if accepted, or if more than one challenger, to 
 be then opened and declared a match, or sweepstakes of 200 
 sov. each, play or pay. If the challenge be not accepted, the 
 Cup to be delivered to the Keeper of the Match-book in the 
 Meeting ensuing the challenge, for the person who may 
 become entitled to the same. 
 
 The Whip. 23. The Whip maybe challenged for twice in each year, 
 
 viz. : on the Tuesday after the July Meeting, when the ac- 
 ceptance must be signified or the Whip resigned on the 
 Tuesday following, or challenged for on Monday or Tuesday 
 in the Second October Meeting, when the acceptance must be 
 signified, or the Whip resigned, before the end of the same 
 meeting. If challenged for and accepted in July, to be run 
 for on the Friday in the Second October Meeting following ; 
 and if in the October, on the Thursday in the First Spring 
 Meeting following; B.C. weight lOst., and to stake 200 sov. 
 each, play or pay. 
 
 Charges at Newmarket. 
 
 Discount on 24. Five poixnds per cent, shall be allowed on all forfeits 
 
 Forfeits. under 100^. and not less than 20/. declared to the Keeper of 
 
 the Match-book, at or before ten o'clock the evening before 
 running; and if the forfeit amount to lOOZ. and upwards, 
 10/. per cent, shall be allowed. All forfeits shall be paid before 
 twelve o'clock at night of the day fixed for the race, and on 
 those forfeits which shall not be so paid, the deduction for the 
 timely declaration of such forfeit shall not be allowed. 
 
 No horse shall be considered as struck out of his engage- 
 ment, unless the owner, or some person authorized by him, 
 shall give notice to the Keeper of the Match-book, or to his 
 clerk, or to one of the Stewards present. 
 
MISCELLANEOUS. O/i 
 
 2o. The Stakeholder at Newmarket is allowed to retain, out TheStake- 
 of the stakes in his hands, the following fees for his trouble, bolder. 
 viz. — 
 
 For every match one pound. 
 
 For every plate one pound. 
 , For every subscription or sweepstakes where the lowest 
 forfeit amounts to 20 sov. i- per cent, on the whole stake, and 
 on all other races 1 per cent. 
 
 [The charges for stake-holding at Ascot and Groodwood are 
 the same as at Newmarket.] 
 
 26. The Keeper of the Match-book is entitled to charge a Fees for 
 fee of 2s. 6f/. on all nominations at Newmarket, if published nominations. 
 in the Racing Calendar before running, but not on the entries 
 
 which are made at Newmarket during the week of running. 
 
 27. Towards defraying the expense of repairing the Course Heath tax. 
 and Exercise-ground, five guineas annually shall be paid in 
 
 respect of every horse that shall be trained at Newmarket. 
 Any horse remaining at Newmarket more than a week before 
 or after any Race meeting there, shall be considered as trained 
 at Newmarket, and his trainer shall apply for a licence under 
 Rule 28. All yearlings broken on the Heath and Exercise- 
 ground to be charged two guineas. And the same shall be 
 paid by the stable-keeper or servant ha\T.ng the care of such 
 horse, and be charged by hina to the owner of such horse. The 
 Stewards shall make such orders as they think fit relative to 
 the returns to be made by the stable-keepers or servants of 
 horses under their care, and if any stable-keeper or servant 
 shall fail to make a true return according to this order, he 
 will be surcharged one guinea for each horse omitted in his list. 
 N.B. — At present all trainers are required to send in on the 
 1st of February, a list of the horses which have been under 
 their charge from the 1st of January, and on the 1st of every 
 succeeding month a list of any additional horses that have 
 been under their care since the preceding return. 
 
 28. Every trainer who wishes to train horses on the lands Licence to 
 belonging to, or in the occupation of, the Jockey Club, must train at New- 
 apply annually to the Stewards for a licence, and on making '^'''•''^^*- 
 such application must specify the horses then under his charge, 
 
 and the names of their owners. 
 
 A trainer shall be liable to have his licence withdrawn for 
 breaking the rules laid down by the Stewards for the manage- 
 ment of the ground, or for any misconduct on the Turf, 
 or in matters connected with it, and the prohibition to use 
 the lands of the Jockey Club attached to the refusal or with- 
 drawal of a licence shall extend to the Race meetings. 
 
 The payment of Heath Tax shall not be taken to confer on 
 the person paying the same any legal rights which shall 
 interfere or be inconsistent with the absolute control the Club 
 now has over all persons using or going on to their grounds. 
 
 o. p p 
 
578 
 
 APPENDIX. 
 
 Plates and 
 Sweepstakes 
 walked over 
 for. 
 
 Races for 
 
 Gentlemen 
 
 Riders. 
 
 Raising 
 weights in 
 handicaps. 
 
 Should the Stewards find it necessary to refuse or withdraw 
 a licence from any trainer, they will report that they have 
 done so at the next General Meeting of the Club. 
 
 29. When fewer than three horses, the property of persons 
 having different interests, start for any plate or race in which 
 money is advertised to be given by the Club, only half the 
 amount shall be paid, and in case of a walk-over for a Sweep- 
 stakes, no money shall be given. 
 
 Relating to other matters not before specified. 
 
 30. No races for gentlemen riders are allowed at New- 
 market during the regular meetings without the sanction of 
 the Stewards, and, that accorded, such races must be the first 
 or last of the day. 
 
 31. Any member of a Racing Club riding in with the lead- 
 ing horses in a race shall be fined to the amount of 25/., and 
 all other persons to the amount of bl. 
 
 32. Rule 10 (ii.) of the Rules of Racing, extends at New- 
 market to the highest weight left in at ten o'clock the pre- 
 ceding evening in liandicaps for plates and stakes, where 
 there is no declaration of forfeit, and where the weights are 
 fi:sed the night before running. 
 
 33. No rule or alteration of a rule of the Jockey Club takes 
 effect until it has been published in the Racing Calendar, 
 unless specially ordered to the contrary at the time the said 
 rule or alteration is adopted ; and no new rule of the Jockey 
 Club can be passed, and no rule be rescinded without previous 
 notice being given in the Sheet Racing Calendar, except ichen 
 it relates to the private business of the Club, ivhen notice shall be 
 sent by circular to all the meinbers in the iveek pireceding the 
 meeting^ nor at any meeting at which less than nine members 
 are present. 
 
 POST HORSES. 
 
 The acts of parliament as to Stage Coaches and Post 
 Horses are 2 & 3 WiU. 4, c. 120 ; 3 & 4 Will. 4. c. 48 ; 5 & 6 
 Vict. 0. 79 ; and 32 & 33 Yict. c. 14. 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 ; 6 & 7 Yict. c. 86 ; 13 & 14 Vict. c. 7 ; 16 & 17 
 Vict. c. 33 ; 16 & 17 Vict. c. 127 ; 30 & 31 Vict. c. 134 ; 32 & 
 33 Vict. c. 115 ; and the Police of Towns Clauses Act (10 & 11 
 Vict. c. 89). The 32 & 33 Viet. c. 14, s. 17, repeals the 
 Excise duties upon licences to let Horses for hire and to keep 
 Haoknev and Stas-e Can-iases. 
 
MISCELLANEOUS, / 1 
 
 SLAUGHTEEING HOESES. 
 
 Eegulations as to tlie Sluugliteriug- of Horses, &c., are con- 
 tained in 26 Geo. 3, c. 71 ; and 7 & 8 Yict. c. 87 ; and are to 
 be found in Burn's Justice (a), under tlie head " Horses and 
 Horse Eacing." 
 
 — ♦ — 
 
 Aldeidge's, Uppeb St. Maeti>''s Lane, London, Public Sales 
 BY Auction of Horses and Careiages, &c. 
 
 CONDITIONS OE SALE. 
 
 1 . The highest bidder to be the buyer, and if any disjmte 
 arise between two or more bidders respecting any Lot, before 
 the same is returned into the Stable, or place of such Lot, it 
 may be immediately put up again for sale, or the Auctioneer 
 may declare which bidder he thinks proper to be the Pur- 
 chaser. 
 
 2. No person to advance less than Five Shillings above One 
 Pound ; Ten Shillings and Sixpence above Ten Pounds ; and 
 One Guinea after Twenty Guineas, and so on in proportion. 
 
 3. Buyers are to state their names and places of abode, and 
 pay a deposit of 25 per cent, on each Lot at the time of 
 purchase, and the remainder of the purchase-money on the 
 day of sale and before delivery of the Lot ; and in case of 
 non-payment the Seller may either rescind the contract, in 
 which case the deposit will be forfeited, or resell the Lot by 
 Public Auction on the Buyer's behalf with or without notice 
 to him, in which case the Buyer will be liable to pay to the 
 Seller the difference (if any) between the sum agreed to be 
 paid by him for the Lot and the amount realized by such 
 resale, also the commission on the resale, the keep of the Lot, 
 and all other charges whatever, deducting the deposit. 
 
 4. Any Horse sold at this Establishment with a warranty, 
 must, in case the Buyer contend that it does not correspond 
 with such warranty, be retiu-ned before Five o'clock p.m. on 
 the second day after the Sale (Sunday excluded), otherwise it 
 shall be deemed and taken to be in all respects as warranted 
 as between all persons, and the non-return within the time 
 limited shall be a bar to any claim on account of any breach 
 of warranty, and the Buyer shall be bound to keep and pa}'' 
 for the Horse whether it be or be not according to the warranty. 
 
 5. Should a horse, warranted quiet in harness or to ride, bo 
 returned, it shall be tried by an impartial person to be named 
 by the Proprietors of this Establishment, whose decision shall 
 be final and conclusive upon all persons, and a fee of Ten 
 Shillings for the ti-ial shall be paid by the party in error. 
 
 6. Should any horse, sold here, warranted to ride or draw, 
 be considered by the Buyer to be incapable of working, from 
 
 (17) Bum's .Tustice, vol. ii. p. lool. 
 
 V r 2 
 
580 APPENDIX. 
 
 any infirmity or disease, it may be returned here before Five 
 o'clock on the second day after the Sale, with a certificate 
 from a Veterinary Surgeon to that effect ; if not so returned 
 with such certificate it shall be taken not to have been retiu'ned 
 within the meaning of the 4th Condition ; and if such certifi- 
 cate be not confirmed by another, to be furnished by the 
 Yendor within two days, or in case the Vendor shall neglect 
 or refuse to furnish such certificate, the Auctioneer shall im- 
 mediately appoint a Veterinary Surgeon, whose decision shall 
 be final and binding, and the whole expense must be paid by 
 the party in error. 
 
 7. No horse considered to be aft'ected with Glanders, Mange, 
 or other infectious or contagious disorder, must, under any 
 circumstances, be returned in accordance with the 4th Condi- 
 tion, but in lieu of such return a notice in writing of the fact 
 of the Horse being so affected, and of the place where it 
 stands, must be given at this establishment within the time 
 mentioned in that condition, accompanied with the certificate 
 of a Vetei-inary Surgeon that the Horse is so affected ; and in 
 case of omission to give such notice, accompanied by such 
 certificate within such time, the said Horse shall be deemed 
 and taken to be as between all persons not affected with any 
 such disorder, and such omission shall be a bar to any claim 
 on account of the said Horse being so affected, and the Buyer 
 shall be bound to keep and pay for the same whether it be or 
 be not so affected. 
 
 8. If such notice from the Buyer, accompanied by a certifi- 
 cate be given, the Vendor will immediately be required to 
 procure a certificate from his Veterinary Surgeon ; and in case 
 of non-agreement of these two opinions, or in case the Vendor 
 neglect or refuse to furnish a certificate within two days after 
 his receiving the notice, then the Auctioneer shall appoint a 
 Veterinary Surgeon, whose decision shall be final and binding 
 upon all parties, and all expenses must be paid by the party 
 in error. 
 
 9. The seller shall in no case be entitled to receive payment 
 of any money before it has been received from the Buyer ; 
 but if received he shall be entitled to the net proceeds of the 
 property sold at the Wednesday's sale, on the following Mon- 
 day, and on property sold on Saturdays, on the following 
 Thursday, between Ten and Four o'clock. 
 
 10. A right is reserved to the Vendor of any Horse, Car- 
 riage, or other property sent to or left at this Establishment, 
 to bid by or through the Auctioneer, and unless such property 
 is protected by a written reserve, it shall be considered to have 
 been sent or left for the purpose of Sale by Auction, and may 
 be sold by Public Auction without reserve, at the next Sale 
 day after it shall have been sent in, or if any Horse, Carriage, 
 or other property, protected by a written reserve, be not sold 
 or removed within one month from the date of such reserve, 
 
MISCELLANEOUS. 581 
 
 the same may be sold by Public Auction witbout reserve, at 
 the next Sale clay, with or without notice to the owner, who 
 may receive the net proceeds of such Sale on either of the 
 days as above. 
 
 11. The Commission on all Sales is five percent., except 
 for Dogs which is ten per cent., and the same will be charged 
 on any Lots returned as not answering warranty, but there 
 shall not be a less charge than Five Shillings for any Horse 
 or Carriage sold. An Auction fee of Pive Shillings is charged 
 on each Horse, Five Shillings on each Carriage, Two Shillings 
 and Sixpence on Harness or Saddle and Bridle, and Ten 
 Shillings on each Dog entered on the Books, whether the Lots 
 be put up for Sale or not. 
 
 3s. 6d. is charged for the keep of each Horse per Day and 
 Night, 6d. for Ostlers, and if sold Is. 6d. for Halter, 
 Dog's keep, 6r/. each per Day and Night, Collar and 
 Chain Is. 6d. each, unless supplied by Vendor. 
 
 5s. is charged per Week for the standing of four-wheel 
 Carriages ; and 3s. per Week for the standing of two- 
 wheel Carriages, and Is. for washing. 
 
 12. The above Conditions apply to all Horses, Carriages, 
 &c., brought to this Eepository for Sale, whether they be sold 
 by Auction, or privately by the owner, or by any person 
 employed by him. 
 
 13. No Horses, Carriages, &c., shall be taken away until 
 all expenses are paid. 
 
 Lastly. The name, description and addi-ess given by the 
 Vendor will in all cases be furnished to a Purchaser if requested; 
 and in case of dispute the remedy of the Buyer shall be 
 against such Vendor only, and in no case or imder any cir- 
 cumstances against the Auctioneer or Proprietors of this 
 Establishment, who are to be regarded to all intents and 
 purposes as agents for a disclosed principal. 
 
 Willia:m & Stewart Freeman, Proprietors. 
 
 Albert Gate, Hyde Park, October 23rd, 1780. 
 
 CONDITIONS OF EVEEY SALE BY AUCTION AND 
 PEIVATE CONTEACT 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 re-sold. 
 
 2nd. No person to advance less than Five Shillings ; 
 above Ten Pounds, Ten Shillings, and so on in proportion. 
 
 3rd. The Purchasers to give in their Names and Places of 
 Abode (if required) and to pay down Five Shillings in the 
 Pound (if required) as Earnest and in part of Payment ; in 
 Default of which, the Lot so purchased may be immediately 
 put up again and re-sold if the Auctioneer shall think fit. 
 
582 APPENDIX. 
 
 4tli. The Lots to be taken away within One Bay after tlie 
 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 re-sold by public or private Sale, and the 
 Deficiency (if any) attending such Re-sale shall be imme- 
 diately 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 oth 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 on the third Day from the 
 Sale Day ; and all Horses sold with a warranty of any descrip- 
 tion 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 Custodj^ but not before. 
 
 8tli. 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. 
 
 Oth. All Horses, Carriages, &c., brought to this Repository 
 for Sale, and sold or advertised to be sold by Private Contract, 
 either by Messrs. Tattersall, 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, Keej) 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. 
 Tattersall (though not upon the Premises at the time of Sale, 
 either by Private Contract or Public Auction) shall pay the 
 usual Commission. 
 
 Lastly. The Conditions of Sale are : 
 
 K sold by Public Auction, One Shilling in the Pound ; 
 If by Private Contract, One Shilling in the Pound ; and 
 If not sold, 2h per cent, on the reserve price up to 200 
 
 guineas. 
 No Lot will be offered for less than Five Shillings. 
 
 The Days of Pajonent are, for UnAvarranted Horses sold ou 
 Mondays, Wednesdays ; for Warranted Horses, Fridays only, 
 between the Hours of Ten and Four o'clock. 
 
 N.B. — Xo Money paid without a written Order. 
 
INDEX. 
 
 ACCEPTANCE AND RECEIPT. 
 
 In what they consist, 7. 
 
 Must be of the goods "so sold," id. 
 
 General Eule, id. 
 
 Acceptance and actual receipt before delivery, 8, 10. 
 
 Where an article is selected, 8. 
 
 Question for the Jviry, 9. 
 
 What should be left to them, id. 
 
 Constructive possession by vendee, id. 
 
 Must divest vendor of his lien, 10. 
 
 Seller may become agent for buyer, id. 
 
 Question for Jury in such case, id. 
 
 What has been held sufficient as an acceptance and re- 
 ceipt, id. 
 
 Buyer directing expense to be incurred, 11. 
 
 ^Vhat has been held insufficient, id. 
 
 Various acts of ownership, 12. 
 
 A ready-money transaction, id. 
 
 Criterion for determining whether goods are accepted or 
 not, 13. 
 
 Conduct of buyer, id. 
 
 If more used than necessary to test them, id. 
 
 "Where buyer offers to resell, id. 
 
 Where goods are agreed to be resold, id. 
 
 Goods bought out of a larger bulk, id. 
 
 Purchaser must have exercised his option, 14. 
 
 He must object within a reasonable time, id. 
 
 Goods sold by sample, id. 
 
 More articles sent than ordered, id. 
 
 Acts must be unequivocal, 15. 
 
 Acceptance of delivery order insufficient without attorn- 
 ment, id. 
 
 ACCIDENT. 
 
 Unsoundness caused by it, 73. 
 To Hired Horse or Carriage, 251. 
 To Horse in Eailway Yard, 284. 
 Pony and carriage running away, 322. 
 Horse running away, 324. 
 From the sudden fright of a Horse, 323, 324. 
 Collision in the dark, 322. 
 
 Accident itself sometimes prima facie proof of negligence, 
 327. 
 
584: INDEX. 
 
 ACCIDENTAL DEATH. See Negligent Drivikg. 
 
 ACCOUNT STATED. 
 Proof of, 186. 
 
 ACE OF HEAETS. 
 
 An illegal gam.e, 434. 
 Penalty for setting up, 458. 
 
 ACTS OF OWNEESHIP. 
 
 Not necessarily proof of acceptance, 12. 
 Which destroy the right to return goods delivered on exe- 
 cutory contracts, 107. 
 
 ACUTE DISEASES, 74. 
 
 ADDRESS. 
 
 Giving one after an accident, 340. 
 Promising to pay for damage, ul. 
 Giving false address or name in Gaming House, 462. 
 
 ADVERTISING. 
 
 Effect of, by auctioneer, 48. 
 
 Lotteries, 385. 
 
 Betting Houses, 386, 454. 
 
 AFFIRMATION. 
 
 When it amounts to a warranty, 138. 
 
 AGENT. 
 
 Signature by Agent under Statute of Frauds, 26. 
 
 who may be an Agent, 27. 
 
 How constituted, 'id. 
 
 Need not be authorized in writing, id. 
 
 Auctioneer, Agent of both jiarties, 27, 39. 
 
 Except when he sues as a contracting party, 27, 43. 
 
 Auctioneer's Clerk, Agent at an Auction, id. 
 
 Writing off debt duo from Agent by Agent, 34. 
 
 Money coming to Agent by fraud of Princijjal, 53. 
 
 Agent not declaring himself to be so, 54. 
 
 Cannot delegate his authority, 123. 
 
 Nor exceed it, 124. 
 
 Agency determines by Principal's death, id. 
 
 Difference between remunerated and unremunerated Agent, 
 
 id. 
 Acting without proper authority, id. 
 His personal responsibility, id. 
 Where he cannot be sued on the contract, id. 
 But is liable in damages, 125. 
 Principal answerable for his fraud, id. 
 Misrepresentation by, collateral to contract, id. 
 Damage caused by his negligence, id. 
 Undisclosed principal, id. 
 
 Person described as Agent maybe proved to be Principal, 126. 
 Principal cannot be proved to be Agent, 127. 
 Their respective rights of action on a contract, id. 
 Warranty by Servant as special Agent, id. 
 Does a\ithority to sell imply authority to warrant, 128. 
 
INDEX. 585 
 
 AGE1<!T— (continued). 
 
 Warranty by a Servant as general Agent, 128. 
 Warranty by a Servant after sale, 130. 
 Warranty by a Servant forbid to give one, id. 
 Warranty by a Stranger forbid to give one, 131. 
 Master unwilUng to stand by his Servant's Warranty, id. 
 Rule as to Servant binding his Master, 132. 
 Warranty by a person entrusted to deliver, id. 
 Agent employed to take a Warranty, id. 
 Action against a pretended Agent, id. 
 Effect of signature by, 273. 
 Betting Agent, 422, 427. 
 And see Servakt. 
 
 AGISTEE. 
 
 His possession, 240. 
 
 Does not insure a Horse's safety, id. 
 
 He is answerable for negligence, id. 
 
 If he leaves his gates open, 241. 
 
 Fences out of order, &c., id. 
 Injury by another Horse, id. 
 The Horse's condition, 242. 
 Eatage let for a certain time, id. 
 Agister has no lien, id. 
 May have a lien by agreement, 243. 
 Horses and cattle being agisted are distrainable, 244. 
 
 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. 
 
 AGEEEMENT. See Note or Memorandum. 
 Unstamped, admissible to prove fraud, 160. 
 By a jobmaster, 254. 
 By a hirer, 257. 
 
 AGREEMENT STAMP. 
 
 Written warranty does not require, 189. 
 
 ALDRIDGE'S. 
 
 Proprietor of, a Horse-dealer, 39. 
 Conditions of sale used there, 579. 
 
 ALTERNATIVE RATES, 281. See Carrying Horses. 
 
 AMENDI^IENT. 
 
 In statement of consideration, 181. 
 
 Power of, extended, 181, n. 
 
 In statement of fraudulent representation, 183. 
 
 ANNE. 
 
 Reign of, 377. 
 
 Statutes. See Table of Statutes. 
 
 ANNUITY. 
 
 To keep a favourite Mare, 465. 
 
 ANTICOE, 80. 
 
58() INDEX. 
 
 APPRENTICE. 
 Gaining, 430. 
 
 ARBITEATION. 
 
 Of the Jockey Club, 410. 
 
 AEEOWS. 
 
 Penalty for lacking, repealed, 384. 
 
 ARTICLES. 
 
 For Queen's Plate, 548. 
 
 ARTIFICE. 
 
 To conceal faults, 156 — 158. 
 
 ART UNIONS. 
 
 Acts to legalize, 385. 
 May obtain charters, 438. 
 
 ASSISTANCE. 
 
 To enter a Betting-bouse, 455. 
 Or Gaming-bouse, 459. 
 
 ATHELSTAN. 
 Reign of, 369. 
 
 ATTORNMENT. 
 
 Necessary to make receipt of deHvory order an acceptance, 
 15. 
 
 AUCTIONS AND REPOSITORIES. 
 
 Deposit at an auction is part payment, 16. • 
 
 An auctioneer, 39. 
 
 Liable to an action for negligence, id. 
 
 Or for conversion, 40. 
 
 Selling Horses comprised in bill of sale, 41. 
 
 Horse sent to a Repository, id. 
 
 Auctioneer's possession, id. 
 
 An auctioneer can set up Jus tertii, 42. 
 
 Interpleader by auctioneer, id. 
 
 Goods privileged from distress, id. 
 
 His right to remain on the premises, 43. 
 
 Auctioneer or clerk agent of both parties, id. 
 
 Purchaser's name signed to a catalogue, 18, 43. 
 
 Printed particulars of sale, 44. 
 
 An incorrect catalogue, id. 
 
 A limited warranty, id. 
 
 Where it applies only to soundness, 45. 
 
 Trial of a Horse warranted quiet in harness, 46. 
 
 Notice of the conditions of sale, id. 
 
 Notice of particulars, 47. 
 
 Where a bidder may retract, id. 
 
 Sale " without reserve," id. 
 
 Effect of advertisement, 48, 
 
 Warranty of ownership, id. 
 
 Auctioneer not disclosing his principal, 49. 
 
 Liability for non- delivery, id. 
 
 Puffing, id. 
 
 I 
 
INDEX. 587 
 
 AUCTIONS AND REPOSITOEIES— (coH^inMccZ). 
 Person employed to bid, 50. 
 Effect of previous private warranty, 51. 
 Agreement not to bid against each other, id. 
 Mock auctions, id. 
 
 Purchaser may transfer his bargain, id. 
 Where party refuses to take goods, id. 
 Goods resold without communicating with purchaser, 52. 
 Auctioneer proper party to receive the price, id. 
 Has no authority to receive a bill of exchange, id. . 
 He is stakeholder for both parties, id. 
 Effect of this attribute, id. 
 As to interest, 53. 
 Auctioneer's lien, id. 
 When the Price vests in the vendor, id. 
 Price obtained by principal's fraud, id. 
 Agent not declaring himself to be so, 54. 
 Auctioneei''s commission, id. 
 
 Entitled to commission though no sale by auction, id. 
 Misrepresentation made before sale by auction, 153. 
 
 B. 
 BACK-GAMMON. 
 
 A lawful game, 433. 
 
 BACK SINEWS. See Splint and Thickening of the Back 
 
 Sinews. 
 
 BACKING AND GIBBING, 75. 
 BAGATELLE. See Billiards. 
 
 BAILEE. 
 
 Vendor may become, 8. 
 
 Setting up title of bailor, evidence of conversion, 66. 
 
 Innkeeper may become, 220. 
 
 Fraudulent appropriation by, Larceny, 251. 
 
 A gratuitous Bailee, 260. 
 
 Negligence of a Bailee, id. 
 
 Of a gratuitous Bailee, id. 
 
 BAILIFFS, 459. 
 
 BAILMENT. See Borrowing Horses and Bailee. 
 
 BALLOT IN LAND SOCIETIES, 439, and sec Lotteries. 
 
 BALLS. 
 
 Evidence of a Gaming-house, 461. 
 May be taken, 460. 
 May be destroyed, id. 
 
 BANK NOTES. And see Wagers. 
 Forged, 34. 
 
 Single Halves of, no payment, id. 
 Taking stolen notes, in jDayment, 426. 
 Taking stopped note, id. 
 What invalidates holder's right, id. 
 Mala fides must be proved, id. 
 
588 INDEX. 
 
 BANKEK, 
 
 At a Gaming-liouse, 460, 462. And see Games and 
 Gaming. 
 
 BANKRUPT, 
 
 Where goods are sold on credit, 32. 
 Gaming losses, 431. 
 
 BARGAIN. 
 
 Implied in contract of Sale, 3. 
 
 Striking a Bargain, 5. 
 
 Bargain wlien struck, id. 
 
 Where neither party can be off, id. 
 
 Striking off a Bargain, 16. 
 
 Bound by an Earnest, 17. 
 
 Loss of a good Bargain, 210. 
 
 BARGAIN AND SALE. 
 Definition of, 3. 
 Proof of, 187. 
 
 BASSET, 
 
 An illegal game, 434. 
 Penalty for setting up, 458. 
 
 BEAR. 
 
 Injury from a bear chained in a yard, 348. 
 
 BEHN V. BURNESS, Mr. Justice Williams' Judgment in, 143, 
 145. 
 As to distinction between Warranty and Representation, id. 
 
 BETTING. See Wagers. 
 
 BETTING AGENT. 
 
 Decision in Equity as to, 422. 
 
 May recover disbursements from principal, 427. 
 
 Agreement to pay over winnings by, id. 
 
 BETTING HOUSES. 
 
 A common Betting House, 448. 
 
 Act for the Suppression of Betting Houses, 449. 
 
 " Using " under this Act, id. 
 
 " Place" within this Act, id. 
 
 Moveable Desk, 450. 
 
 Cricket Ground, id. 
 
 Pigeon Shooting, id. 
 
 Umbrella on Race-Course, 451. 
 
 Moveable box within Ring, 452. 
 Betting at a Club, id. 
 
 Purposes for which houses or places are not to be used, id. 
 Penalty for using them for such purposes, 453. 
 Penalty for receiving money, &c. on certain conditions, id. 
 Money, &c. so received may be recovered from the Holder, 
 
 id. 
 Act does not extend to stakes in a Race, &c., id. 
 Penalty for advertising, »&c., 453, 454. 
 
INDEX. 589 
 
 BETTING llOVfiBS—icontmued). 
 
 Power to search suspected houses, 454. 
 Power of Commissioners of Police, 455. 
 The levy and application of penalties, id. 
 Where party neglects to prosecute, id. 
 No objection allowed on matter of form, -id. 
 No ajDpeal from High Court, 456. 
 The remaining provisions, id. 
 Extension to Scotland, id. 
 
 BIDDING AT AN AUCTION. 
 Bidding up a Horse, 49. 
 Person emj^loyed to bid, 50. 
 Agreement by persons not to bid against each other, 51. 
 
 BILL OF EXCHANGE. See Promissory Note. 
 
 Dishonoured, effect of, when goods are in transitu, 34. 
 
 Payment for goods, 35. 
 
 Agent receiving one, 52. 
 
 Breach of warranty no defence to action, 172. 
 
 Unless there be a total failure of consideration, id. 
 
 Given for a Gaming consideration, 420, 425, 443. 
 
 In paj'ment of a bet, 425. 
 
 As security, id., 444. 
 
 When avoided, id. 
 
 Where a note or bill is a gift, id. 
 
 Bill not void in the hands of a bond fide holder, id. 
 
 Effect of such payment, 444, 446. 
 
 Bill accepted with notice of illegal consideration, 446. 
 
 BILL OF SALE. 
 
 Auctioneer selling horse comprised in, 41. 
 
 BILLIAEDS. 
 
 A lawful Game, 434. 
 
 A licence required, 463. 
 
 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, 464. 
 
 Enforced by distress, id. 
 
 Billiard table may be rateable, 463, n. 
 
 Offences against the tenor of the Licence, id. 
 
 First, second, or third offence, id. 
 
 When Billiard playing is not allowed, id. 
 
 Constables may visit licensed Houses, id. 
 
 BITING, 75. 
 
 BLACKSMITH. See Farrier. 
 
 BLINDNESS. 
 
 Cataract, 75, 76, 79. 
 
 Eemittent inflammation, 76. 
 
 Opacity of the lens held to be an unsoundness, id. 
 
1 
 
 590 INDEX. 
 
 BLOOD AND BOG-SPAVIN, 77. 
 
 BOAT EACE, 406, 408, 433. 
 
 BOND, given in payment of a bet, 425, 444. 
 
 BONE-SPAVIN. 
 
 Held to be an nnsoundncss, 77, 78. 
 
 BOEEOWING IIOESES. 
 
 Eemedy against borrower for detaining, 176. 
 
 Lending for use, 258. 
 
 Duties of Borrower and Lender, id. 
 
 Lender of a Horse, id. 
 
 Must not conceal defects, id. 
 
 What care is required, id. 
 
 As much, as the borrower is capable of bestowing, 259. 
 
 Showing a Horse for sale, id. 
 
 A gratuitous bailee, 200. 
 
 Negligence of a bailee, id. 
 
 Eule as to negligence of gratuitous bailee, id. 
 
 Use strictly personal, id. 
 
 Cannot be used by a servant, 261. 
 Must be iTsed according to the lending, id. 
 
 Or else the borrower is answerable, id. 
 Where no tinie is fixed for return, id. 
 EedeUverj' on reqiiest, id. 
 Borrower bound to feed the Horse, id. 
 Where the Horse is exhausted, 262. 
 Where the Horse is killed, id. 
 Vfhere the Horse dies from disease, id. 
 Where borrower is answerable for damage, id. 
 Bailment ended by misuser, /(/. 
 
 BOWLS, 434. 
 
 BOWS. 
 
 Penalty for lacking, repealed, 384. 
 
 BEEACH OF WAEEANTY. 
 
 Eequisites to action on, 152. 
 
 Buyer neither bound to tender the Horse nor give Notice, 
 
 163. 
 Seller not bound to take back tbe Horse, id. 
 Unless the contract was executory, 164. 
 Sired v. Bhiy, id. 
 Judgment of the Court of King's Bench, id. 
 
 Lord Eldon's opinion discussed, id. 
 
 Evidence in mitigation of damages, 166. 
 
 Unfitness for a i:)articular purj)oso, id. 
 
 An intermediate i:)rofit, id. 
 
 Acts of ownership inconsistent with trial, 167. 
 
 Confirmed by a later case, id. 
 Goods are returnable where there is fraud, 168. 
 But not for non-correspondence with sample, id. 
 Agreement that a Horse is to be returned if Unsound, id. 
 Or unsuitable, 1G9. 
 
INDEX. 
 
 i91 
 
 BEEACH OF ^Y ARBANTY— {continued). 
 Or unfit for a particular purpose, 170. 
 Verbal offer after sale to take back the Horse, id. 
 Where goods should be returned immediately, id. 
 Or the contract becomes complete, id. 
 Where Buyer should tender the Horse, id. 
 Sale after tender, 171. 
 Notice instead of tender, id. 
 Length of time before Notice, id. 
 Seller should have the Horse examined, 172. 
 Breach of Warranty no defence to an action on a Bill of 
 
 Exchange, id. 
 Unless there be a total failure of consideration, id. 
 Sale by order of court, id. 
 Pleading in action on, 179. 
 Warranty must be stated to have been made at time of sale, 
 
 id. 
 Statement of Claim, how framed for, 182. 
 When any one substantive part is untrue, id. 
 When condition is annexed to the Warranty, id. 
 When Warranty is qualified, id. 
 Payment in action on, 183. 
 Proof of Breach of Warranty, 191. 
 Plea of, in reduction of damages, 195. 
 Defence to action on, id. 
 And see Warrajstty. 
 
 BEEAiaNG HOESES. 
 In a pubUc place, 254. 
 
 BEIGHT EYE, 134. 
 
 BEOKEN-BACKED, 78. 
 
 BEOKEN-DOWN, 78. 
 
 BEOKEN-KNEES, 78. 
 
 BEOKEN-WIND, 78. 
 
 BEOKEES. 
 
 Wagering contracts by, 421. 
 
 BEONCHITIS, 79. 
 
 BULL. 
 
 Where a mad bull wounds a person, 354. 
 Where a bull singled out a person wearing red, id. 
 Injury occasioned by a vicious bull, 355. 
 Bull-baiting, 440. 
 
 BUTTS. 
 
 Penalty for not making or continuing, repealed, 384. 
 
 BUYING, SELLING AND EXCHANGING. 
 Bargain, 3. 
 Sale and exchange, id. 
 
592 INDEX. 
 
 BUYING, SELLING AND EXCHANGING— (co^.^v/aie J). 
 Eargaiii and Sale, 3. 
 Executed and executory contract, id. 
 Entire contract, id. 
 Severable contract, id. 
 Verbal contract, id. 
 Written contract, id. 
 Eight of rescission, 4. 
 Eight of trial, id. 
 Buying a Horse under lOZ., id. 
 Where neither party can be off, 5. 
 Striking a bargain, id. 
 
 Contract not to be performed within a year, id. 
 Statute of Frauds, s. 4, id. 
 Eequisites under s. 4, id. 
 Buying a Horse at 10^. or upwards, 6. 
 Statute of Frauds, s. 17, id. 
 Extended by 9 Geo. 4, c. 14, id. 
 Effect of extension, id. 
 Eequisites under s. 17 . . 7. 
 
 C. 
 
 CAB. 
 
 Liability of Cab Proprietor, 334. 
 
 For loss of luggage, 335. 
 
 Or personal injury, id. 
 
 Eelationship between Proprietor and Driver, id. 
 
 Liability of Proprietor to Driver, 341. 
 
 CANKEE, 79. 
 
 CAPPED HOCKS, 79. 
 
 CAEDS. 
 
 Lawful play, 429, 434. 
 
 Unlawful games, id. 
 
 Used as instruments of gaming, 436. 
 
 Evidence of a Gaming house, 461. 
 
 May be taken, 460. 
 
 May be destroyed, id. 
 
 CAEEIAGE. 
 
 Horse suitable for, 121, 137. 
 
 Defects in Eailway Carriages, 268, 274, 275. 
 
 Carriages racing, 297. 
 
 Defect in, presumption from, 307. 
 
 Maybe removed, if obstructing tradesman's door, 331. 
 
 CAEEYING HOESES. 
 
 A common Carrier, 264. 
 
 Eailway Companies common Carriers, id. 
 
 Duty of common Carriers, id. 
 
 Bound to carry within reasonable time, id. 
 
 And to deliver safelv, ('(7. 
 
INDEX. 593 
 
 CAERYING HORSES— {continued). 
 Exceptions, 264. 
 
 Meaning of "Act of God," id., 265. 
 Eule as to Inherent Vice, 265. 
 Blower v. Great Western Railiuay Company, id. 
 Proof of, 266. 
 
 Eule applies to common Carriers by Sea, 267. 
 When Carrier may refuse to carry animals, 268. 
 Onus of pi'oof of non-liability, id. 
 Must carry for reasonable charges, id. 
 Defects in Carriages, id. 
 A special contract to carry, id. 
 Binding at Common Law, 269. 
 Hardship thus occasioned, id. 
 Eemedy 17 & 18 Vict. c. 31, id. 
 
 Sections 1 — 6, id. 
 
 Section 7, id. 
 Application of Section 7. . 270. 
 Construction of Section 7 . . 271. 
 Peek V. North Staffordshire Railway Company, id. 
 General Notices invalid, 272. 
 Condition limiting liability, id. 
 
 "Condition" and "Special Contract" sj'nonymous terms, id. 
 Special Contract binding on company without signature, 273. 
 Effect of signature by agent, id. 
 As to reasonableness Court to decide, id. 
 General effect of these decisions, 274. 
 What conditions just and reasonable, and what not, id. 
 "To be free from all risks" — Cattle suffocated, id. 
 " To be free from all risks of conveyance" — Unsound truck, 
 
 275. 
 Owner's risk at lower rate, 276. 
 Condition as to time within which loss should be declared, 
 
 to create claim, id. 
 Condition as to special rate, id. 
 As to package insufficiently packed, id. 
 As to non-liability for loss of market as to fish, id. 
 As to cheese, id. 
 
 As to loss of market coupled with " injury" to cattle, 277. 
 Condition as to value coupled with unreasonable rate, 278. 
 Where value untruly declared, 279. 
 Condition as to general non-liability, id. 
 As to non-liability beyond their own limits, 280. 
 If part of special contract is reasonable, such part may be 
 
 relied on, 281. 
 Alternative rates, id. 
 What is wilful misconduct, 282. 
 
 Plaintiff must prove more than culpable negligence, id. 
 Onus of proof, 283. 
 
 General effect of the decisions as to conditions, id. 
 Delivery by Carrier, id. 
 
 Notice of consignee's refusal to consignor, id. 
 Effect of consignee's refusal, id. 
 
 Compensation paid in error to consignor no answer to action 
 by consignee, 28J. 
 O. Q Q 
 
594 INDEX. 
 
 CAEEYING HOUSES— {contlmiecl). 
 
 Liability of company when accident happens to Horse 
 
 ■within yard, 284. 
 Opinion of Cockburn, 0. J., id. 
 
 Of Mellor, J., 285. 
 
 Of Blackburn, J., id. 
 Declaration of value under 17 & 18 Vict. c. 31, s. 7, id. 
 Non-compliance Avith a rule as to receipt, id. 
 Through carriage on railways, id. 
 What company liable, id. 
 
 Through carriage, partly by railway and partly by sea, 287. 
 Eegulation of Eailways Act, 1868, id. 
 
 Company to furnish particulars of charges, 288. 
 Eegulation of Eailways Act, 1871, id. 
 
 Effect of section 12 . . 289. 
 
 DooJan v. Midland Rail. Co., id. 
 Steamboat and railway companies to disinfect carriages, 
 boats, &c., 290. 
 
 Contagious Diseases (Animals) Act, 1878, id. 
 " Eeasonable time," id. 
 A Ferryman, 291. 
 Damages, 292. 
 
 Injury must not be too remote, id. 
 Failing to provide Horse-boxes, id. 
 
 CAET. 
 
 Carter in, killing child, guilty of manslaughter, 296. 
 Left in the street, 306, 310. 
 Tackle breaking, 307. 
 Shafts breaking, id. 
 Name on the Cart, 340. 
 
 CATALOGUE. 
 
 At a sale, 18. 
 
 Purchaser's name signed, 18, 43. 
 
 Conditions sejDarated, id. 
 
 Terms of, must not be varied from, 44. 
 
 Incorrect, may be explained, id. 
 
 DescriiDtion amounting to a warranty, 142. 
 
 CATAEACT, 75, 79. 
 
 CATAEEH, 82. 
 
 CATTLEGATE OWNEES, rights of, 360. 
 
 CAYEAT EMPTOE. See Warranty. 
 
 Eule in buying and exchanging, 113, 133, 136, 137, 155. 
 
 Exceptions well nigh eaten up rule, 113. 
 
 Still however rule of law, 114. 
 
 Dictum of Mr. Baron Martin, id. 
 
 When it does not apply, 137, 153. 
 
 Possession of the means of knowledge, 153. 
 
 CEETIOEAEI. 
 
 Taken away in 16 & 17 Yict. c. 119 . . 456. 
 In 25 Geo. 2, c. 36 . . 457, n. 
 In 17 & 18 Yict. c. 38 . . 463. 
 
INDEX. 595 
 
 CHARIOT EACES, 433. 
 
 CHAELES THE FIEST. 
 Eeign of, 376. 
 
 CHAELES THE SECOND. 
 Eeign of, 376. 
 Statutes. See Table of Statutes. 
 
 CHAETEE. 
 
 For Art Union, 438. 
 
 CHEATING. 
 
 Where several persons combine to cheat, 147. 
 Conspiracy to cheat indictable, id. 
 Miist be evidence of concert, id. 
 What evidence sufficient, id. 
 Where only one person cheats an action lies, 148. 
 In a wager, 428. 
 Eunning booty indictable, id. 
 By using False Dice, 430. 
 In a game, 431. 
 At play, id. 
 
 Deemed a False Pretence, id. 
 CHEQUE. 
 
 Payment by, 34. 
 
 Dishonoured, no payment, 31, n., 34, 161. 
 
 Defence to action on, 194. 
 
 Stakeholder cashing one, 393. 
 
 CHESS. 
 
 Lawful Game, 434. 
 
 CHEST-FOUNDEE, 79. 
 
 CHILD. 
 
 Horse to carry, 120. 
 
 Injury to, by negligence, 310 — 315. 
 
 Ordinary care in, 309. 
 
 Identification of, with person in charge of, 321. 
 
 Effect of such identification, id, 
 
 CHINEIID IN THE CHINE, 80. 
 
 CHEONIC OPACITY OF THE LENS, 76. 
 
 CLEEGYMAN. 
 Gaming, 430. 
 
 CLEEK OF THE COUESE. 
 Stakeholder, 392. 
 Steward, 40. 
 Cannot waive any condition of a race, 409. 
 
 CLICKING, 80. 
 
 CLOUDINESS, 80. 
 
 CLUB. 
 
 Jockey Club, 410. 
 Betting at, 452. 
 Subscription Club, 458. 
 
 Q Q 2 
 
596 
 
 INDEX, 
 
 COACHMAN. 
 
 A hired carriage, 253. 
 Wearing hirer's livery, id. 
 And see Hieixg Horses and Negligent DEivma by 
 Servant. 
 
 COCKFIGHTING. 
 Illegal, 440. 
 Keeping a place for, id. 
 Penalty for, 440, 441. 
 
 COIN. 
 
 Tossing with, a sport, 431. 
 
 Using as instrument of gaming, 436. 
 
 Betting odds and paying, 437. 
 
 COMMENDATIO SIMPLEX NON OBLIGAT, 138. 
 
 COMMISSION. 
 
 Aixctioneer's, 54. See Auctioneer, Lien, S^ile. 
 
 COMMITTEE OF A RACE. See Stewards. 
 
 COMMON. 
 
 Turning a vicious Horse upon a common, 355. 
 
 CONDITIONS. 
 
 Annexed to Warranty, when to be specially pleaded, 192. 
 Of carrying. See Carrying Horses. 
 
 CONDITIONS OP SALE. 
 
 Catalogue mtist refer to them, 43. 
 
 Separation from Catalogue, id. 
 
 Printed j^articulars, 44. 
 
 Warranty limited as to time may be one of them, id. 
 
 Notice of conditions, 46. 
 
 Annexed to the Warranty, 182, 192. 
 
 Form used at Aldridge's, 579. 
 
 At Tattersall's, 581. 
 
 CONJUNCTIVA. 
 Inflamed, 75. 
 
 CONSIDERATION. 
 
 Under sect. 4 of the Statute of Frauds, 5. 
 
 Failure of it in the case of Sunday dealing, 36. 
 
 Where a good title is a condition of the contract, 114. 
 
 Grossly inadequate, 162. 
 
 Statement of, 177, 181. 
 
 Executed or executory, 181, 182. 
 
 Certainty required in statement of executory, 181. 
 
 If the Horse turn out " lucky," id. 
 
 Conditions jjrecedent must be performed when consideration 
 
 executory, 183. 
 Proof of, 187. 
 Where promissory note has been given in paj^ment of a bet, 
 
 420. 
 Notice of illegal consideration, 444, 446. 
 Security for money lent for gaming, 443. 
 
INDEX. 597 
 
 CONSIGNEE. 
 
 Effect of consignee's refusal, 283. 
 
 CONSIGNOE OF GOODS. 
 
 Notice by carrier to, of refusal of goods by consignee, 283. 
 Compensation paid erroneously to, no answer to action by 
 consignee, 284. 
 
 CONSPIEACY TO CHEAT. See Cheating, Fraudulent 
 Eepresentation, Indictment. 
 To obtain money by false pretences, 148. 
 To induce a creditor to forego bis claim, id. 
 
 CONSTABLES. 
 
 May be autborized to enter a Betting House, 454, 455. 
 May be autborized to enter Gaming Houses, 459, 460. 
 And take into custody all persons tbere found, 454, 455, 
 
 460. 
 Bond to prosecute, 457. 
 Persons obstructing, punishable, 462. 
 May visit licensed BiUiard Eooms, 464. 
 
 CONTAGIOUS DISEASES (ANIMALS) ACT. 
 Application of provisions of, to Horses, 90. 
 Glanders and farcy " diseases" under, id. 
 Unlawful to expose diseased Horse for sale under, id. 
 Disinfecting carriages and boats under, 290. 
 
 CONTEACT. 
 Executed, 3. 
 Executory, id. 
 
 Entire, and price indivisible, id. 
 Entire, and warranty several, 119. 
 Severable, 3. 
 Verbal, id. 
 "Written, id. 
 
 Eight of rescission of, 4. 
 Not to be performed witbin a year, 5. 
 Not invalidated by unreasonable condition, 29. 
 Time not the essence of, 30. 
 Eeduced to writing, 119. 
 To carry. See Carrying Horses. 
 A fooUsb bargain, 153, 203. 
 Affected by a delusion, 154. 
 An impossible contract, 203. 
 Action against Livery Stable Keeper for not taking due 
 
 care of Horse, founded on contract, 240. 
 Injury by Hirer of Horse founded on contract, 248. 
 ForEacing, 391, 393. 
 
 Money staked on illegal contract, 396 — 398. 
 Contract void, but not illegal, 421. 
 Illegal, but not void, id. 
 
 Money paid on void contract for winner or loser, id. 
 Gaming contract for shares, 423. 
 Contracts for gaming, 432. 
 Security for money lost at play, 444, 445. 
 
598 INDEX. 
 
 CONTEACTION, 80. 
 
 "When held to be an Unsoundness, 81. 
 
 CONTEACTOR. 
 
 Liability of, for negligence, 317, 318. 
 
 CONTEIBUTOEY NEGLIGENCE. And see Negligent 
 Deivi^'G. 
 No defence to a criminal charge, 298. 
 
 CONVEESION. 
 
 Damages for wrongful, 201. 
 
 Setting up title of bailor, evidence of, 66. 
 
 Auctioneer liable to action for, 40. 
 
 CONVEXITY. 
 Of eye, 134. 
 Of sole, 110. 
 
 CON^^CTION. 
 
 For furious driving, no bar to action of trespass, 300. 
 But it is for subsequent action for damage, 343. 
 
 COENS, 81. 
 
 COUGH, 82. 
 
 Held to be an Unsoundness, tbougb temporary, 82, 83. 
 
 COUNTEES. 
 
 Evidence of a Gaming House, 461. 
 May be taken, id. 
 May be destroyed, id. 
 
 COUESING MATCH, 383. 
 
 Eor a particular meeting, 411. 
 A lawful game, 433. 
 
 COWHOCKED, 86. 
 
 CEACEIID HEELS, 90. 
 
 CEIB-BITING, 84, 135. 
 
 When not an Unsoundness, 84. 
 Held to be a vice, 85. 
 
 CEICKET GEOUND. 
 
 Held to be a " place" within Betting Acts, 450. 
 
 CEICKET MATCH, 383. 
 Eecovery of stakes, 399. 
 A lawful game, 434. 
 
 CEOSSING. 
 
 Eailway, 305. 
 Street, 331. 
 
 CEOUPIEE. 
 
 At a Gaming House, 460, 462. 
 
 CEYSTALLINE LENS. See Blindness. 
 
INDEX. 599 
 
 CUEB, 85, 191. 
 
 CUEBY HOCKS. 
 
 Not an Unsoundness, 86. 
 
 CUELINa, 384, 434. 
 
 CUSTOM TO EACE, 389. 
 To resort to races, ul. 
 Not an easement, 390. 
 
 CUTTING. 
 
 Held not to be an Unsoundness, 87. 
 
 D. 
 
 DAI^IAGES. 
 
 General Damages, 198. 
 
 Special Damages, id. 
 
 Legal and natural consequences of breach of contract, 199. 
 
 Judge to direct Jury as to Eules of, id. 
 
 Damages arising from special circumstances, id. 
 
 Effect of notice of, 200. 
 
 Eor wrongful conversion, 201. 
 
 In tort, id. 
 
 In actions for a sum certain, id. 
 
 Interest, 202. 
 
 Effect of 3 & 4 Will. 4, c. 42, s. 28, id. 
 
 17 & 18 Vict. c. 90, id. 
 
 In actions which sound in damages, id. 
 
 A foolish Bargain, 203. 
 
 An impossible Contract, id. 
 
 Cannot be higher than the amount laid, 204. 
 
 In goods bargained and sold, id. 
 
 In an action for not accepting, id. 
 
 In an action for not delivering, id. 
 
 Nominal, 205. 
 
 In Goods sold and delivered, id. 
 
 In Money had and received, id. 
 
 On Breach of Warranty, id. 
 
 General rule, id. 
 
 AVhere the Horse has been returned, id. 
 
 Where the Horse has not been returned, 206. 
 
 Where the Horse has been tendered, id. 
 
 Expense of Keep, id. 
 
 Seller liable for reasonable Keep, 207. 
 
 What is reasonable, id. 
 
 Keejiing the Horse till a Pair, 208. 
 
 Expense consequent on the Warranty, id. 
 
 Expense in selling, 209. 
 
 Expense in advancing the Horse's value, id. 
 
 Horse tendered and then sold by Auction, id. 
 
 Expense of Veterinary Certificate and Counsel's opinion, id. 
 
 Travelling expenses, 210. 
 
 Loss of a good Bargain, id. 
 
 Ee-selling with a Warranty, id. 
 
600 INDEX. 
 
 D AM A.QEQ— (continued). 
 
 Damages for misrepresentation, 210, 211. 
 
 Where the damages are very small, 212. 
 
 For loss of or injury to Horse, by Carrier, 292. 
 
 For failing to provide Horse-boxes, id. 
 
 Deodands abolished, 342. 
 
 Lord Campbell's Act, id. 
 
 Damages through negligent driving, 344. 
 
 Where the party is killed, 345. 
 
 How limited, id. 
 
 Cannot be given for funeral expenses, 346. 
 
 Not given to a class, but to individuals, id. 
 
 So individuals may recover, when class do not suffer, id. 
 
 Wrongdoer not res23onsible for all possible consequences, 344. 
 
 Not given where injury too remote, id. 
 
 Injury done to a Carriage, 345. 
 
 Measure of, when Horse has been injured, id. 
 
 DAEK. 
 
 Wrong side of Eoad, 328. 
 
 DEALING-TALK, 152. 
 
 DEATH. 
 
 Of Principal, 124. 
 
 DEED. 
 
 Substituted for one tainted with illegality, 447. 
 
 DEFECTS. 
 
 Latent, 115. See Latent Defects. 
 
 Buyer protected against, by warranty, 116. 
 
 Concealment, 157. 
 
 Patent, 133. See Patent Defects. 
 
 Su.spected, 137. 
 
 Visible, 152. 
 
 Lender of Horse must not conceal, 258. 
 
 DEFENCE. See Pleading and Evidence for the Defen- 
 dant. 
 
 DELIVEEY AND PAYMENT. 
 
 Delivery implied in receipt, 7. 
 
 Actual or constructive, 7, 9, 10. 
 
 Eights of property and possession, 28. 
 
 Executed and executory contracts, id. 
 
 Property may pass without delivery, id. 
 
 What immediately passes the property, id. 
 
 Condition as to price ascertainable, id. 
 
 Effect where not ascertainable, 29. 
 
 Unreasonable condition, id. 
 
 Eisk after sale, id. 
 
 Goods to be made to order, 30. 
 
 Goods to be delivered on a future day, id. 
 
 Delivery and pajTuent contemjioraneous acts, id. 
 
 Time not the essence of a contract, id. 
 
 When nothing is said about the time of delivery, 31. 
 
INDEX. 601 
 
 DELIVEEY AND -pAYME^T— {continued). 
 Eelative position of the parties, 31. 
 Seller's lieu for tlie price, id. 
 Lien in case of an exchange, id. 
 Conditional possession, id. 
 Buyer's right of possession where goods are sold on credit, 
 
 32. 
 How it may be defeated, id. 
 Seller's lien dui'ing possession, id. 
 His right of stoppage in transitu, id. 
 Where goods are held to be in transitu, id. 
 "When anything remains to be done by seller, id. 
 Effect of stojipage in transitu, 33. 
 Goods to be delivered before payment, id. 
 When time of delivery is not fixed to a day, id. 
 Goods to be paid for before delivery, id. 
 Renunciation of Contract, id. 
 Price directed to be sent by post, 34. 
 Post-office order, id. 
 Forged bank note, id. 
 Dishonoured bill, id. 
 Halves of bank notes, id. 
 Writing ofi debt from Agent by Agent, id. 
 Banker's cheque, id. 
 Bill of exchange, 35. 
 Debt paid to a third party, id. 
 
 DELIVEEY OEDEE. See Attornment. 
 
 DELUSION. 
 
 Affecting the contract, 154. 
 
 DEODANDS. 
 
 Abolished, 342. 
 
 DEPOSIT. 
 
 At an auction is a part payment, 16. 
 
 With a Stakeholder recoverable before the event, 415, 432. 
 
 And see Stakeholdees. 
 Betting House-keeper receiving deposits on bets, 453. 
 
 DEEBY SWEEPS. 
 Unlawful, 437. 
 
 DETINUE. 
 
 By whom maintainable, 175. 
 Defence in action of, 193. 
 
 DICE. 
 
 Unlawful, 434. 
 
 Except Back-gammon, id. 
 
 Evidence of a Gaming-house, 461. 
 
 May be taken, 460. 
 
 May be destroyed, 461. 
 
 Using false Dice, 430. 
 
 DIGGING. 
 
 For a Fox, &c., 358. See Hunting and Trespassing. 
 
602 INDEX. 
 
 DISEASES. 
 
 Congenital, or otherwise, 71. 
 Alterations in structure, id. 
 Temporary, 73. 
 Acute, 74. 
 Hereditary, 91. 
 
 DISTANCES. 
 
 For Queen's Plate, 550. 
 
 DISTEAINOE. 
 
 His power of Sale, 228. 
 
 DISTEESS. 
 
 Auctioneer selling goods taken by illegal distress, 42. 
 
 Goods privileged from distress, id. 
 
 Horse bringing goods to market exempt, 59. 
 
 Guest's Horse at an Inn exempt, 223. 
 
 Horse at a Farrier's exempt, 232. 
 
 Horse at Livery not exemj)t, 237. 
 
 Nor Horses during agistment, 244. 
 
 Except wben taken in to rest for a nigbt, id. 
 
 Distinction as to distress, where cattle enter by breaking 
 fences, id. 
 
 Horse with a rider on him damage feasant, cannot be dis- 
 trained, 364. 
 
 DOG. 
 
 Where a dog bites a jDerson, 350. 
 
 Not enough to show that it was of a fierce disposition, id. 
 
 Eeport that dog had been bitten by mad dog, id. 
 
 Where it has bitten a child, id. 
 
 Not necessaiy to show that dog had bitten another man, 351. 
 
 Stray dog on defendant's premises, id. 
 
 Evidence of scienter, id. 
 
 Damage done by dog to game, ground of action, id. 
 
 Horse frightened by dogs, and thereby damaged, id. 
 
 Where a dog worries sheep, 350, 352. 
 
 Dictum of Mr. Justice Maule, 352. 
 
 Evidence of mischievous propensity unnecessary under 28 & 
 
 29 Vict. c. 60, id. 
 In case of inJLuy to Horses, id. 
 Proof of ownership, id. 
 
 Scienter mav be found against a corporation, id. 
 Dogs Act, 1871. .353. 
 Dangerous dogs straying, id. 
 
 Court may order confinement or destruction of, id. 
 And impose fine for noncompliance with order, id. 
 General restrictions on dogs being at large, 354. 
 Shooting a dog for worrying sheep, or fowls, 355, 356. 
 Dog jumping into a field, 364. 
 Dog-fighting, 399, 440. 
 
 DOMINOES. 
 
 A lawful game, 434. 
 
INDEX. 603 
 
 DEAUGHTS. 
 
 A lawful game, 434. 
 
 DEAY. See Waggon. 
 
 DEIVEES. 
 
 Of public and private vehicles, respective duties of, 300. 
 
 DEIVINGr. See Negligent Driving. 
 
 DEOPSY. 
 
 Of the Skin, 87. 
 Of the Heart, id. 
 
 DEUGGING. 
 Horses, 63. 
 
 DEUNKENNESS. 
 
 Of contracting party, 162. 
 
 DUTY ON EACE-HOESES. 
 Abolished, 385. 
 
 E. 
 
 EAENEST AND PAET PAYMENT. 
 
 A requisite under Statute of Frauds, 6. 
 
 Two kinds of Earnest, 16. 
 
 Symbolical, id. 
 
 Pecuniary, id. 
 
 Is a part payment, id. 
 
 Should be retained by vendor, id. 
 
 The old Eule, id. 
 
 Effect of earnest under Statute of Frauds, 17. 
 
 Effect of part payment, id. 
 
 EAETH. 
 
 Eunning a Fox, &c., 357 — 359. 
 Wager as to rotundity of, 418. 
 
 EDWAED THE SECOND. 
 Eeign of, 370. 
 
 EDWAED THE THIED. 
 Eeign of, 370. 
 
 EDWAED THE SIXTH. 
 Eeign of, 374. 
 
 ELECTION. 
 
 Wager on result, 415. 
 
 ELIZABETH. 
 Eeign of, 374. 
 Statutes. See Table of Statutes. 
 
 ENLAEGED GLANDS, 88. 
 
604 INDEX. 
 
 ENLARGED HOCK, 88. 
 
 ENTIEE CONTEACT. 
 What is, 3. 
 
 ENTRY. 
 
 For a race, 391. 
 
 Into a Betting-house, 454. 
 
 Into a Gaming-house, 459, 460, 461. 
 
 Into a public Billiard-room, 464. 
 
 EVIDENCE. See Pleading aa^d Evidence. 
 
 EWE NECK, 88, 105. 
 
 EXCHANGE. See Buying, Selling and Exchanging. 
 What is, 3. 
 
 EXECUTED CONTEACT. 
 What is, 3. 
 
 EXECUTOEY CONTEACT. 
 What is, 3. 
 
 EXPENSE. See Damages, Keep. 
 Of Keep, 206. 
 
 In Selling, damages for, 209. 
 In advancing Horse's value, damages for, id. 
 Veterinary certificate and counsel's opinion, damages for, id. 
 Travelling expenses, damages for, 210. 
 
 EXPEESSUM FACIT CESSAEE TACITUM. 
 Applies to Warranties, 119. 
 
 EYE. 
 
 How far loss of, patent, 133. 
 Convexity of, 134. 
 
 F. 
 
 FAIES AND MAEKETS OVEET. 
 
 Sales at Fairs and Markets overt, bo. 
 The general rule of law, 56. 
 When Mai-ket overt is held, id. 
 Where Market overt is held, id. 
 What held to be Market overt, id. 
 
 What held to be Market overt without the city of London, id. 
 What within the City of London, id. 
 Markets and Fairs Clauses Act, 57. 
 Setting up private market, id. 
 Horse " an article" within Act, id. 
 
 Sale by auctioneer in yard not belonging to his own dwelling- 
 house, id. 
 Where sj^ecial Act enlarges exception, id. 
 Building let for two days, id. 
 Temporary shed in front of shoji, id. 
 
INDEX. 605 
 
 FAIES AND MAEKETS OYBBT— {continued). 
 
 Building separated from auctioneer's dwelling-liouse by 
 
 3'ard, 58. 
 Horse-dealer's premises "a shop," id. 
 Where a Horse at a fair is exempt from distress, 59. 
 Sale of diseased animals in, id. 
 Purchaser of stolen Horses in Market overt, 63. 
 Eestitution of stolen goods, notwithstanding sale in Market 
 
 overt, 66. 
 
 FALSE PEETENCES, 60, 61, 148. 
 
 FALSE QUAETEE, 88. 
 
 FALSE EEPEESENTATION. See Feaud, Fraudulent 
 Contracts, Eepresentation, and Fraudulent 
 Eepresentation. 
 Of the profits of a business, 199. 
 
 FAECY, 88. 
 
 Water Farcy, 89. 
 
 FAEEIEE. 
 
 Cannot refuse to shoe a Horse, 228. 
 ' When brought at a reasonable time, 229. 
 Answerable for his own want of skill, id. 
 Where a third person is affected, id. 
 When answerable for his servant, id. 
 Action against a farrier for pricking a Horse, id. 
 Collins V. Rodway, id. 
 
 Eule as to farriers, 230. 
 
 No insurance against injury, 231. 
 
 Peculiar difficulties should be mentioned, id. 
 
 Coming at an unseasonable hour, id. 
 Farrying, &c. in the street, 232. 
 Horses standing to be shod not distrainable, id. 
 Horse may be detained for the price of his shoeing, id. 
 
 Such lien is favoured by law, id. 
 
 Extends only to each particular time, id., 233. 
 
 Liability to feed a Horse detained, 233. 
 
 FAULTS, SALE OF GOODS WITH ALL, 156. 
 
 Excludes latent defects, id. 
 
 Unless there be an express warranty, id. 
 
 Or fraud is used to conceal them, id., 157. 
 
 For instance, the practice of j)lugging, 158. 
 No difference whether sale takes place in market or pri- 
 vately, id. 
 
 FAVOUEITE MAEE. 
 
 Annuity for her keep, 465. 
 
 FENCES. 
 
 Maintenance of, 365. 
 
 Obligations of Eailway Companies in respect of, id., 366. 
 
 Fence within Station-yard, 367. 
 
 FENCma MATCH, 383. 
 
606 INDEX. 
 
 FEE^ NATURE, 347. 
 
 PEROCIOUS AND YICIOUS ANIMALS. 
 "Wild and tame animals, 347. 
 
 As to animals /tree naturw only, scienter unnecessary, 348. 
 What oiiglit to be the liability of the person keeping them, 
 
 ul. 
 The Athenian and Eoman Laws, id. 
 The French Code, 349. 
 Argument in Mason v. Keeling, id. 
 Decision in Scotland, id. 
 Reversed in the House of Lords, id. 
 In England a scienter is held necessary, 350. 
 Where a dog bites a person, id. 
 Not enough to show that the dog was of a fierce disposition, 
 
 id. 
 Eeport that dog had been bitten by a mad dog, id. 
 Whore dog had bitten a child, id. 
 
 Not necessary to show that dog has bitten another man, 351. 
 Stray dog on defendant's premises, id. 
 Evidence of scienter, id. 
 
 Damage done by dog to game, ground of action, id. 
 Horse frightened by dogs, and thereby damaged, id. * 
 
 Where a dog worries sheep, 352. 
 Dictum of Mr. Justice Maule, id. 
 Evidence of mischievous propensity unnecessary under 
 
 28 & 29 Vict. c. 60, id. 
 " Cattle" includes Horses and Mares, id. 
 Proof of ownership, id. 
 
 Scienter may be proved against a corporation, id. 
 The Dogs Act, 1871 . . 353. 
 
 Dangerous dogs straying, id. 
 
 Coiu't may order destruction or confinement of, id. 
 
 And impose fine for non-compliance with order, id. 
 
 General restrictions on dogs being at large, 354. 
 Where a Horse bit some other Horses, id. 
 Breaking Horses in a public place, id. 
 Where a mad bull wounds a person, id. 
 Where a bull singled out a person wearing red, id. 
 Where a ram injui-ed a person, id. 
 Where a vicious beast kills a person, id. 
 Owner bound to secure a vicioiis animal at all events, 355. 
 He is liable to an action for damage, id. 
 The gist of the action, id. 
 Not necessary to prove negligence, id. 
 An unruly Horse escaping from a stable, id. 
 Tui'ning a dangerous animal loose, manslaughter, id. 
 Turning a vicious Horse upon a common, id. 
 Inj ury occasioned by a vicious bull, id. 
 Shooting a dog for worrying sheep, id. 
 Shooting a dog for worrying fowls, 356. 
 
 FEEEY. 
 
 Carrying Horses, 291. 
 
 FISTULOUS WITHEES, 100. 
 
INDEX. 607 
 
 FIVES, 383, 434. 
 
 FOOD. 
 
 Liability to feed a Horse detained, 226, 228. 
 Hired Horse refusing kis feed, 249. 
 Borrower bound to feed the Horse, 262. 
 
 FOOLISH BAEGAIN, 153, 203. 
 
 FOOT-BALL, 384, 434. 
 
 Penalty for plajdng, on bigbway, 434. 
 
 FOOT-PASSENGEE. 
 
 Eule of tbe Eoad does not apply, 330, 33L 
 His rigbt to cross a road, 331. 
 
 FOOT-EACE, 383, 393, 433. 
 
 FOECE. 
 
 May be used in entering a Betting-bouse, 454, 455. 
 May be used in entering a Gaming-bouse, 459, 460. 
 
 FOEM OF WAEEANTY, 118. 
 
 FOULING, 409. 
 
 FOUNDEE, 89. 
 
 FOX. See Hunting and Trespassing, 357. 
 
 FEAUD. 
 
 Avoids Sale, 123. 
 
 Unless party defrauded wisbes otberwise, 158. 
 And unless injustice results, 159. 
 Or be continues to deal witb tbe article, id. 
 In wbat it consists, 150. 
 Moral fraud, id. 
 Must concur witb damage, id. 
 Legal fraud, id. 
 Principle of relief for, 151. 
 
 Not fraud to suppress wbat tbere is no duty to communi- 
 cate, id. 
 Collateral, does not avoid deed, 153. 
 Implied by a foolisb bargain, id. 
 Practised upon tbe buj'er, 159. 
 Practised iipon tbe seller, id. 
 Of infant, 161. 
 Of a married woman, id. 
 On a weak-minded person, 162. 
 On a person wben drunk, id. 
 Goods returnable, wbere tbere is fraud, 168. 
 Must be specially pleaded, 193. 
 Fraud or unlawful device at play, 431. 
 Loser may recover stake, wbere tbere is fraud, 399. 
 Unless be bad, witb knowledge of fraud, claimed tbe 
 money, 400. 
 
608 INDEX. 
 
 FEAUDULENT CONTEACTS. 
 
 Where the law does not interfere, 1-16. 
 
 Where several persons combine to cheat, 147. 
 
 Conspiracy to cheat indictable, id. 
 
 There must be evidence of concert, id. 
 
 What evidence has been held insufficient, id. 
 
 Conspiring to obtain money by false pretences, 148. 
 
 Conspiring to induce a creditor to forego his claim, id. 
 
 Where only one person cheats an action lies, id. 
 
 Chandelor v. Lopus, id. 
 
 Eemarks on that case, 149. 
 
 Form of action, id. 
 
 Foundation of the action, 150. 
 
 In what fraud consists, id. 
 
 There must be moral fraud, id. 
 
 Effect of fraud, id. 
 
 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, 151. 
 
 Due caution must always be observed, id. 
 
 Not fraud to suppress what there is no duty to communi- 
 cate, id. 
 
 Eeqmsites to an action on false representa,tion, 152. 
 
 Or on breach of warranty, id. 
 
 Caveat emptor, id. 
 
 A visible defect and a nude assertion, id. 
 
 Dealing talk, id. 
 
 Collateral fraud does not avoid a Contract, 153. 
 
 A foolish bargain, id. 
 
 Eepresentation known to be untrue, id. 
 
 Made before a sale by auction, id. 
 
 Made by a bidder at an auction, 154. 
 
 Eepresentation not known to be true, id. 
 
 A well-grounded belief, id. 
 
 Delusion affecting the contract, id. 
 
 Eepresentation to prevent inquiries, id. 
 
 Eepresentation through a third party, 155. 
 
 Eepresentation by a third party, id, 
 
 A bond fide representation, id. 
 
 Eepresentation as to credit, id. 
 
 Sale of goods " with all faults" excludes " latent defects," 
 156. 
 
 Unless there be an express warranty, id. 
 
 Or fraud is used to conceal them, id. 
 
 Plugging, &c., 158. 
 
 Exposure in public market not evidence of fraud, id. 
 
 Contract made voidable by fraud, id. 
 
 Where fraud is practised upon the buyer, 159. 
 
 He may recover price, id. 
 
 Except where it works injustice, id. 
 
 Where he continues to deal with the article, id. 
 
 Where fraud is practised upon the seller, id. 
 
 Eesale by the buyer to an innocent vendee, id. 
 
INDEX. 609 
 
 FRAUDULENT CONTRACTS— (cofti/« unl) . 
 Contract with intent to cheat the seller, 160. 
 Preconceived design of not j)aying for goods, id, . 
 Question for the jury, ul. 
 Resale at a reduced price, id. 
 
 Unstami^ed agreement admissible to prove fraud, iJ. 
 Payment by a cheque which is dishonoured, 101. 
 Fraud of an infant, id. 
 Of a married woman, id. 
 
 Where a contracting party is weak-minded, 162. 
 Drunkenness of a contracting party, id. 
 Goods kept by the party when sober, id. 
 
 FRAUDULENT REPRESENTATION. See Fraudulext 
 
 Contracts. 
 Action for, ISO. 
 Statement of, in Claim, 183. 
 How Claim should be framed, when doubtful if it can be 
 
 proved, id. 
 Proof in an action for. 187. 
 Defence to an action for, 197. 
 
 FRIGHTENING A HORSE. See Horse and Negligent 
 Driving. 
 
 FURIOUS DRIVING, 300, 301, 320. 
 
 Conviction for, no bar to action of trespass, 300. 
 But it is for subsequent action for damage, 343. 
 
 FURIOUS RIDING, 300. 
 
 G. 
 
 GAME. 
 
 Dead, property of owner of land, 360. 
 Owner has a right to have it undisturbed, id. 
 Cattlegate owners have not right of shooting, id. 
 Reservation of Manorial Rights under Enclosure Acts 
 
 includes Shooting, id. 
 Two persons engaged in common pursuit, 362. 
 Trespass in search of, id. 
 Shooting from the highway, 263. 
 Game falling on another's land, id. 
 Conviction for unlawfully obtaining, id. 
 
 GAMES AND GAMING. 
 
 Gaming not unlawful, 429. 
 
 Where a London apprentice " frequents Gaming," 430. 
 
 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, 431. 
 
 Cheating in a Game or at Play, id. 
 
 The fraud or unlawful device, id. 
 
 O. R R 
 
610 l^^DEX. 
 
 GAMES AND GAMING— (coni/nuecZ). 
 Conspiracy to cheat at skittles, 432. 
 Conspiracy to cheat at cards, id. 
 Where a criminal information was refused, id. 
 Contracts for Gaming, id. 
 Money deposited for Gaming, id. 
 French Law as to Games, 433. 
 English Law as to Games, id. 
 The word Game, id. 
 Lawful Games, &c., id. 
 Lawful Gaming or Play, 434. 
 " Game " under the Highway Act, id. 
 Unlawful Games, id. 
 Instruments of Gaming, 43G. 
 
 Money paid on illegal Game by third party not recover- 
 able, 422. 
 Cock-fighting, bull-baiting, &c., 440. 
 Keeper of a place for this purpose, id. 
 Within the Metropolitan District, 441. 
 Gaming in a public house, id. 
 Where money is staked, id. 
 By private friends of publican, id. 
 Evidence to suj^port conviction, 442. 
 Where money is not staked, id. 
 Money lent for Gaming, id. 
 Money lent for the Stakes of a Prize Eight, id. 
 Test where the transaction is illegal, id. 
 Securities for money lent for Gaming, 443. 
 Action on a j^romissory note, id. 
 Identification of j)romissory note, id. 
 An I U, id. 
 Money lost at Play, id. 
 Securities for money so lost, 444. 
 General effect of 5 & 6 Will. 4, c. 41, id. 
 Action against accejitor of bill of exchange, 446. 
 Action by acceptor of bill of exchange, 447. 
 Recovery of principal and interest, id. 
 Evidence of owner of a Gaming House, id. 
 Summons to set aside a warrant of attorney, id. 
 A |josf ohit security held good, id. 
 Deed substituted for one tainted with illegality, id. 
 
 GA5^nNG HOUSES. 
 
 A Common Gaming House, 456. 
 Indictment for keejjing one, 457. 
 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, 458. 
 Penalty where constable neglects his dutj', id. 
 Setting up or playing at Hazard, &c., id. 
 Evidence that Hazai'd was played, id. 
 Pent of a Gaming House, id. 
 
INDEX. 611 
 
 GAMING HOUSES— (coH^t«?(e(0. 
 A subscription club, 458. 
 What is a Common Gaming House under 8 & 9 Vict. c. 109, 
 
 459. 
 Evidence on an information for playing Hazard, id. 
 Power of Justices, id. 
 
 In tbo Metropolitan District, 460. 
 Penalties on Gaming House Keepers under 8 & 9 Vict. c. 109, 
 
 id. 
 Penalty for playing, 461. 
 Evidence of Gaming, id. 
 Difficulty of obtaining evidence, id. 
 17 & 18 Vict. c. 38, id. 
 
 Persons summarily convicted of obstructing officers, 461, 462. 
 Persons giving false names or addresses, 462. 
 Owner or occupier may be fined 500/., or imprisoned, id. 
 Persons apprehended may be made witnesses, id. 
 Penalties and costs, id. 
 On neglect to prosecute another jjerson may be authorized 
 
 to do so, 463. 
 Eemaining jirovisions, id, 
 
 GATES. 
 
 Left open by agister, 241. 
 Of a field, 365. 
 Of a Railway Crossing, id. 
 Of a Eailway Station, 366. 
 
 GEOEGE THE FIEST. 
 Eeign of, 379. 
 Statutes. See Table of Statutes. 
 
 GEOEGE THE SECOND. 
 Eeign of, 379. 
 Statutes. See Table of Statutes. 
 
 GEOEGE THE THIED. 
 
 Eeign of, 382. 
 
 Statutes. See Table of Statutes. 
 
 GEOEGE THE FOUETH. 
 Eeign of, 382. 
 Statutes. See Table of Statutes. 
 
 GIBBING. 
 
 Backing and, 75, 89. 
 
 GIFT. 
 
 Eequisites of transfer of property by, 3. 
 Where a note or bill is a gift, 425. 
 
 GLANDEES, 89. 
 
 Infectious to mankind, id. 
 ■ The recent act, 90. 
 
 GLASS EYE, 91, 134. 
 GLAUCOMA, 90. 
 
 R R 2 
 
Gt2 INDEX. 
 
 GOLF, 383, 433. 
 
 GOODS. . . 
 
 Buyer entitled to goods commercially known by the 
 
 name, 116. 
 Shoixld be merchantable, 120. 
 Eeturnable, where there is fraud, 168. 
 But not for non- correspondence with sample, id. 
 Eeturnable, where so agreed, 168, 169. 
 If rejected should be returned immediately, 170. 
 When part of, have been delivered, contract rescinded, 177. 
 Damage to goods in Carrier's hands, 264. 
 
 GOODS BAEGAINED AND SOLD. 
 For payment of the Price, 175. 
 Proof for the plaintiff, 184. 
 Defence, 193. 
 Damages, 204. 
 
 GOODS SOLD AND DELIVERED. 
 For pajTiient of the Price, 177. 
 Proof for the plaintiff, 185. 
 Defence, 194. 
 Damages, 205. 
 
 GRAND STAND. 
 Ordering off, 412. 
 
 GRASS. See Iis^^'keepek and Agister. 
 
 GREASE, 90. 
 
 GROGGINESS, 90. 
 
 GRUNTING, 91. 
 
 GUARD OF OMNIBUS. 
 
 Using tindue violence to drunken passenger, 336. 
 
 GUEST. See Innkeeper. 
 GUTTA SERENA, 91, 134. 
 
 H. 
 
 HACKNEY CARRIAGES. 
 Statutes, 521, 530, 578. 
 
 HARE. See Hunting and Trespassing. 
 
 HARNESS. 
 
 Quiet in, 118, 121, 122. 
 
 HAZARD. 
 
 An illegal game, 434. 
 
 Penalty on person setting up, 458. 
 
 Evidence that it has been played, id. 
 
INDEX. 613 
 
 HEATS. 
 
 Eules under Quecu'a Plate Articles, 548. 
 
 HENEY THE FIEST. 
 Eeign of, 369. 
 
 HENEY THE SECOND. 
 Eeign of, 369. 
 
 HENEY THE FOUETH. 
 Eeign of, 370. 
 Statutes. See Table of Statutes. 
 
 HENEY THE SEVENTH. 
 Eeign of, 370. 
 Statutes. See Table of Statutes. 
 
 HENEY THE EIGHTH. 
 Eeign of, 371. 
 Statutes. See Table of Statutes. 
 
 heeeditaey disease, 91. 
 highway;. 
 
 Person injured bj' falling over lieaji on, 315. 
 
 Opportunity of seeing it, id. 
 
 Eunning over stones by nigbt on, id. 
 
 Leaving it, and sustaining injury, id. 
 
 True test of legal liability, 316. 
 
 Wbo liable for injury thus caused, 317, 318, 319. 
 
 Neglect of statutory duty by Surveyor of, 319. 
 
 Nuisance on, 316, 331. 
 
 Trespass in jDursuit of Game from, 363. 
 
 " A Game" under Highway Act, 434. 
 
 HIEING HOESES. 
 
 Letting for Hire, 244. 
 
 Warranty of fitness for a journey, id. 
 
 Eeasonable care not sufficient, 245. 
 
 Person letting, insurer against all defects wliicli care and 
 
 skill can guard against, id. 
 Wbere a particular Horse is selected, 247. 
 Horse sbould not be used for a purpose other than that for 
 
 "which it was hired, id. 
 What care is required on part of Hirer, id. 
 Infancy good defence to an action on contract, id. 
 Secus, where action founded on tort, 248. 
 Where Hirer is answerable at all events, id. 
 Unnecessary deviation, id. 
 Where Negligence must be proved, id. 
 Where the Horse falls lame, id. 
 Where the Horse is exhausted, id. 
 Where the Horse refuses his feed, 249. 
 "Where the Horse is returned in worse condition, id. 
 Expenses of curing Sick Horse, id. 
 Where the Horse is improperly doctored, id. 
 Who must pay for shoeing, id. 
 
614 INDEX, 
 
 HIEING HORSES— (co^th"H«e(/). 
 
 Bailment determined by selling tlie goods, 249. 
 
 Where the Horse is stolen from the Hirer, 250. 
 
 Where the Horse is stolen by the Hirer, id. 
 
 Must have been originally taken with a felonious intention 
 
 at common law, 251. 
 Now Bailee indictable for larceny by 24 & 25 Vict. c. 96, s. 3, id. 
 Horse hired by a servant, id. 
 Owner's liability in case of accident, id. 
 Horses driven by the owner's servants, 252. 
 Horses driven by the owner's servants to a certain place, id. 
 Travelling Post, id. 
 
 Horses driven about town by the owner's servants, id. 
 Laucjlier v. Pointer, id. 
 Owner held liable in Quarman v. Burnett, 253. 
 
 Wearing the Hirer's Livery, id. 
 A job-master's agreement, 254. 
 Where the Hirer is liable for damage, id. 
 Hirer liable through his own conduct, id. 
 Hirer liable where he might have controlled his servant, id. 
 M'Lauf/Jilin v. Pryor, 255. 
 
 Opinion of the Court of Common Pleas, 255, 256. 
 
 The general rule, 256. 
 
 Where the Hirer would not be liable, id. 
 
 Hirer sitting outside liable, id. 
 The Jury must decide whether the servant is acting for the 
 
 Hirer or owner, 257. 
 A Hirer's agreement, id. 
 
 HOCK. 
 
 Enlarged, 88. 
 
 HOESE. 
 
 An " article" within 10 & 11 Vict. c. 14 . . 57. 
 
 "WTiat included within this description, 59. 
 
 lulling or maiming, 62. 
 
 Drugging, 63. 
 
 Exposure for sale, when diseased, 90. 
 
 Sale of, by order of Court, 172. 
 
 Accident to, in yard of Eailway Company, 284. 
 
 Damage from Horse being frightened by a Eire-basket, 301. 
 
 By Van left on roadside, 302. 
 
 By an Engine Driver blowing ofi steam, 305. 
 Eestive, 323, 324. 
 Kicking at a Sale, 327. 
 Injury to, by dog, 352. 
 Where a Horse bit some other Horses, 354. 
 Breaking Horses in a public place, id. 
 Where a vicious Horse kills a person, id. 
 An unruly Horse escaping from a stable, 355. 
 Turning a vicious Horse u2:)on a Common, id. 
 See also Eaceiiokse. 
 
 HOESE-BEEAKEE. 
 
 Liable for damage, 233. 
 Has a lien, id. 
 
INDEX. 615 
 
 HOESEDEALER. 
 
 Definition of a Horsedealer, 38. 
 
 A Seller on Commission, id. 
 
 The Proprietor of Aldridge's, 39. 
 
 No duty payable by a Horsedealer, id. 
 
 When a trader •within the Bankruptcy Act, id. 
 
 Giving a Warranty on a Sunday, 36. 
 
 Premises of, a " Shoj)" within Markets Clauses Act, 58. 
 
 His servant forbid to warrant, 128, 130. 
 
 General Rule, 132. 
 
 HOESE PACE. See Pacing, Pules of Pacing. 
 What is, within Racecourses Licensing Act, 387. 
 
 HORSE STEALING. 
 
 Statute of 24 & 25 Vict. c. 96 . . 59. 
 
 Description in an Indictment, id. 
 
 When the Offence is complete, 60. 
 
 Property given up, id. 
 
 Delivery of a Horse to a Stranger, id. 
 
 Delivery on Trial, 61. 
 
 Goods taken without consent, id. 
 
 Appropriation of a hired Horse, id. 
 
 Larceny without Proof of Sale, id. 
 
 Taking with an Intent to use, 62. 
 
 Possession Six Months after Loss, id. 
 
 Eilling or maiming Horses, id. 
 
 Other animals, id. 
 
 Pouring Acid into a Mare's Ear, id. 
 
 " Maiming and wounding," id. 
 
 Use of instrument need not be proved, 63. 
 
 MaHce, id. 
 
 Drugging of Animals Act, id. 
 
 Where the Horse is stolen by the Hirer, 250. 
 
 Fraudulent appropriation by Bailee of a Horse, 251. 
 
 HOSTLER. See Innkeeper, 214. 
 
 Arrangement with, by Innkeeper, 222. 
 
 HOTEL-KEEPER. See Innkeepee. 
 
 HUNTED. 
 
 A Horse regularly, 411. 
 
 HUNTING AND TRESPASSING. 
 
 Fresh pursuit over another's land, 357. 
 Pursuing vermin, id. 
 
 No unnecessary damage, 358. 
 Digging for a fox, &c., id. 
 Hunting for amusement, id. 
 
 Earl of Essex v. Ccqiel, id. 
 Huntsman liable for damage done by the field, 359. 
 Master of hounds, when responsible for the field, id. 
 Hunting a hare on another's land, 360. 
 Taking a stag on another's land, id. 
 Hunting a stray deer, id. 
 Dead game property of owner, id. 
 
616 INDEX. 
 
 HUNTING AND TRESPASSING— (co«^"«HeJ). 
 
 He lias a right to liave his game undisturbed, 360. 
 Cattlegate owners have not right of shooting, id. 
 Eeservation of rights of Lords of Manors under Enclosure 
 
 Acts, id. 
 Who may kiU hares without a Game certificate, 361. 
 Ground Game Act, 1880, id. 
 Any person may hunt hares, id. 
 Continued trespass, id. 
 
 Two persons engaged in a common purpose, 362. 
 Trespass in search of game, id. 
 Hunting with hounds or greyhounds, id. 
 Jurisdiction of Justices ousted, id. 
 Persons employed by Tenant to kill rabbits, 363. 
 Trespass from the Highway, id. 
 From own land to pick uji Game, id. 
 Under 25 & 26 Vict. c. 114, id. 
 Laying hands on a tresjiasser, id. 
 Disposing force to force, 364. 
 Defence to an action, id. 
 Horse with a rider cannot be distrained, id. 
 Action of trespass lies for riding over land, id. 
 But not where a dog jumps into a field, id. 
 A trespass after notice, /(/. 
 Notice under 3 & 4 Yict. c. 24, s. 3, id. 
 Notice transmitted by jjost, id. 
 Maintenance of fences, 365. 
 Obligation to maintain, id. 
 At common law, id. 
 By statute, id. 
 Gate of a field left open, id. 
 
 Leaving gate open where there is statutable obligation, id. 
 Leaving gate open where no statutable obligation, 366. 
 Fence -^dthin station yard, 367. 
 
 IDENTIFICATION. 
 
 Of child with person in charge of it, 321. 
 Of i^assenger \vith driver, id. 
 
 IMPOSSIBLE CONTRACT, 203. 
 
 INDICT^IENT. 
 
 For Horse-stealing, 59. 
 
 May be maintained for collusion on a sale, 147. 
 
 But not where one person sells an unsound Horse, 148. 
 
 Innkeeper refusing to receive a Traveller, 217. 
 
 What such Indictment must state, id. 
 
 Stealing a hired Horse, 251. 
 
 Killing a person by negligent driving, 296, 297. 
 
 Cheating in a Game or at Play, 431. 
 
 To be deemed obtaining money by false pretences, id. 
 
 Excessive and unfair Gaming, 430. 
 
 Using false dice, id. 
 
INDEX. 017 
 
 INDICTMENT— (coi^<//z»ecZ). 
 
 Keejiing a House for playing Eoiige et Noir, 457. 
 "What the Indictment should charge, id. 
 Bill of, for keeping Gambling-house, presentable on certain 
 conditions only, 463, n. 
 
 INFANT. 
 
 May be an agent, 27. 
 
 Fraud of, 161. 
 
 Liable for torts, 179. 
 
 But not where substantial ground of action is contract, 180. 
 
 When liable for injury to hired Horse, 247, 248. 
 
 Indictment against, 430. 
 
 INITIALS. See Sigxatuee. 
 
 INN. See Ixnkeeper. 
 
 INNKEEPEE. 
 
 His Business, 214. 
 
 Definition of an Inn, id. 
 
 Derivation of Hostler, id. 
 
 "VMio is a Guest, id. 
 
 What an Innkeeper undertakes, id. 
 
 Hours of closing, id. 
 
 Within metropolitan district, id. 
 
 In a town or populous place, 215. 
 
 Elsewhere, id. 
 
 During the whole of Sunday in Wales, id. 
 Travellers and Lodgers, 216. 
 
 Who is a bona fide Traveller, id. ' ' 
 
 Onus of proof, id. 
 Innkeeper compellable to receive a Traveller, id. 
 May be indicted for refusing, 217. 
 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. 
 Liability of Innkeeper limited by 26 & 27 Vict. c. 41 . . 218. 
 Horses exempted from operation of this Act, id. 
 " Wilful," in section 1, must be read with " act" only, id. 
 Verbal error will not vitiate notice, id. 
 Omission of word " act," material, id. 
 Salaried manager not liable as Innkeeper, id. 
 Goods to which his liability extends, id. 
 How ousted, 219. 
 Negligence on part of Guest, id. 
 Where a Guest's Horse is stolen, 220. 
 "Where another person's Horse is stolen, id. 
 Principle iipon which liabilitj' depends, id. 
 Circumstances under which he becomes merely a bailee, id. 
 Horse out at Grass by the Guest's desire, id. 
 Horse out at grass without the Guest's desire, 221. 
 Where a Guest's Horse is injured, td. 
 
 Presumption of negligence against the Innkeeper, id. 
 
 Not rebutted by Stables being out of his control, 222. 
 
618 INDEX. 
 
 INNKEEPER— (co/.i//.«e(/). 
 
 A Guest's goods not distrainable, 223. 
 
 Even wliere lie is accommodated out of the Inn, 
 
 Or uses a Stable provided for the occasion, id. 
 Innkeeper's lien, id. 
 Innkeeper has a lien on a Horse for its keep, id. 
 
 Whether in the Stable or at grass, id. 
 He cannot detain a Guest for his Bill, 224. 
 
 But may detain his Horse, id. 
 What his right of lien depends on, 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, 225. 
 But not if he knew it at the time it was left, id, 
 
 A Horse left by the poKce, id. 
 Giving a Guest credit, id. 
 A third party when answerable, id. 
 Horse removed to defeat the lien, 225, 226. 
 Keep during detention, id. 
 He cannot use a Horse he detains, id. 
 He could not formerly sell a Horse he detained, 226. 
 But may now sell a Horse after six weeks, 227. 
 
 Advertisement of sale, id. 
 Distrainor may sell a Horse for his keep, 228. 
 
 INNOCENT VENDEE. 
 
 Eesale to, by buyer under fraudulent sale, 159. 
 
 INSPECTION. 
 
 Purchase without, 137. 
 
 INSTRUMENTS OF GAMING. 
 What are, 436. 
 May be taken, 460. 
 
 And destroyed, 461. 
 Used for billiards, 463. 
 
 INTEREST. 
 
 When recoverable, 202. 
 
 INTERPLEADER. 
 
 By auctioneer, when allowed, 42. 
 Claims must be co-extensive, id. 
 Mode of trjing disputed title, 114, 115. 
 
 INVOICE. See Bill of Parcels. 
 
 I O U. 
 
 For money borrowed to pay bets, 427. 
 Not evidence of money lent, 443. 
 For gaming debt, id. 
 
 J. 
 
 JAMES THE FIRST. 
 Reign of, 375. 
 Statutes. Sec Table of Statutes. 
 
INDEX, 619 
 
 JOBMASTEE. 
 
 Letting for hire, 244. 
 
 His agi'eement, 254. 
 
 Where the Hirer is liable for damage, 254 — 257. 
 
 JOCKEY. 
 
 Professional, 403. 
 Eeceiving his expenses, 408. 
 
 JOCKEY CLUB. 
 
 Courses governed by theii- Eules, 410. 
 Arbitration by them, id. 
 Will not entertain matter of fact, id. 
 Enles and orders of, 572. 
 
 JOHN. 
 
 Eeign of, 370. 
 
 JUDGE OF A EACE. 
 
 Powers of, do not accrue when race invalid, 403. 
 Stewards are proper parties to appoint, 405. 
 
 JULIUS C^SAE. 
 His time, 369. 
 
 JUS TEETH. 
 
 May be set up by Auctioneer, 42. 
 
 JUSTICES. 
 
 Jurisdiction of, when ousted, 362. 
 
 K. 
 
 KEEP. 
 
 Eecovering the cost of, 206. 
 Seller liable for reasonable keep, 207. 
 What is reasonable, id. 
 Keeping a Horse till a Fair, id. 
 Lien on a Horse for, 223—227. 
 During detention, 226. 
 Lively- stable keeper has no lien for, 238. 
 Unless by agreement, id. 
 
 Money received but returned cannot be set off in an action 
 by Livery-Stable Keeper for, 239. 
 And see Lien. 
 
 KICKING, 92. 
 
 Horse kicked at an Inn, 222, n. 
 
 KIDNEY-DEOPPING. 
 An Unsoundness, 92. 
 
 KILLING OE MAIMING, 62. 
 
 Killing with intent to steal the skin, &c., 59. 
 
 KNUCKLING OVEE, 90. 
 
620 IXDEX. 
 
 LADY. 
 
 Horse to cany, 120. 
 
 LAMENESS. 
 
 Temporary lameness an Unsoundness, 92. 
 
 LAMINITIS, 93. 
 
 LAMPAS, 94. 
 
 LAECENY. See Hoese Stealing. 
 
 LATENT DEFECTS, 115. 
 
 Buyer j)rotected against, by Warranty, 116. 
 
 No exception as to, in case of purchase for particular 
 
 purjwse, 121, 123. 
 Seller not bound to disclose, 151. 
 Sale " witli all faults" excludes, 156. 
 
 LENDING HOESES. See Boeeowing Hoeses. 
 
 LETTING HOESES. See Hieing Hoeses. 
 
 LETTEE. 
 
 Contract by, 20, 21, 22, 23. 
 
 Where direction torn off, 20. 
 
 Comj)leted by posting, 23. 
 
 Though it never arrives, id. 
 
 How supplemented by parol evidence, 24. 
 
 Price sent by post letter, 34. 
 
 AVarranty may be gathered from letters, 119. 
 
 LIABILITY. 
 
 Of Warrantor, 123. 
 
 LICENCE. 
 
 For Eace-course, 387. 
 
 For Billiards, 463. 
 
 Offence by publican against tenor of, 441. 
 
 LIE. 
 
 When cognizable by law, 151. 
 
 LIEN. 
 
 Loss of, by vendor, 8. 
 
 Seller's lien, 31. 
 
 In case of exchange, id. 
 
 How susj^ended, 32. 
 
 Keeper of repository has, for expense of trial, 46. 
 
 Auctioneer has, for commission, &c., 53. 
 
 Innkeeper's lien, 223, 227. And see Innkeepee. 
 
 Farrier's lien, 232, 233. 
 
 Horsebreaker's lien, 233. 
 
 Trainer's lien, 233, 234. 
 
 Stallion-master's lien, 234. 
 
 Livery-stable keeper has no lien for keep, 238. 
 
INDEX. 
 
 G21 
 
 Ijl'EN—{conti>tU€d). 
 
 Except by agreement, 238. 
 
 Horse removed to defeat his lien, id. 
 
 Livery-stable Keeper lias no lien for money expended on 
 
 Horse, id. 
 Agister has no lien, 242. 
 Except by agreement, 243. 
 
 LISTS. 
 
 Penalty for exhibiting, for betting, 454. 
 
 LIVEE DISEASE, 94. 
 
 LIVEEY. 
 
 Servant wearing a Hirer's, 251, 253. 
 
 LIVEEY-STABLE KEEPEE. 
 
 Constructive delivery by, 10. 
 Eemedy against, for detaining a Horse, 176. 
 Has no privilege, 237. 
 Liable where the Horse is lost, id. 
 Horse at livery distrainable, id. 
 
 But not where he is merely to be cleaned and fed, id. 
 Distinction taken in Parsons V. Gingell, 238. 
 Livery-stable keeper has no lien for keep, 10, 11, 238. 
 May have a lien by agreement, 238. 
 Horse removed to defeat such lien, id. 
 Has no lien for money expended on Horse, id. 
 What cannot be sot off in an action for keep, 239. 
 He must take reasonable care of the Horse, id. 
 And see that stable is in a proper state, id. 
 But there is no implied warranty on his part that it is safe, 
 
 id. 
 An action for not taking due care of a Horse founded on 
 
 contract, 240. 
 
 LOED CAMPBELL'S ACT (9 & 10 Vict. c. 93). 
 Action by representatives of person killed, 342. 
 By persons beneficially interested, id. 
 Where the action is maintainable, 342, 343. 
 Damages under, confined to injuries of which pecuniary 
 estimate can be made, 345. 
 Cannot be given for funeral expenses, 346. 
 Does not give remedy to a class but to individuals, id. 
 And see Damages. 
 
 LOED TENTEEDEN'S ACT (9 Geo. 4, c. 14). 
 
 Sect. 7 to be taken with sect. 17 of Statute of Frauds, 6. 
 Effect of being taken together, id. ; 
 
 LOSS OE ISIAEKET. 
 
 Eailway Company not liable for, 276, 277, 278. ^ - 
 
 LOTTEEIES. 
 
 Statutes relating to, 435. 
 Lotteries declared nuisances, id. 
 Penalty for keeping a Lottery, id. 
 
622 INDEX. 
 
 LOTTERIES— (co«f/7n(ecZ). 
 
 Penalty for drawing at a Lottery, 435. 
 
 Littlegoes declared nuisances, id. 
 
 Penalty for keeping a place for a Lottery or Littlego, id. 
 
 Penalty for suffering any Lottery to be di'awn, 436. 
 
 Justices have summary jiuisdiction, id. 
 
 5 Geo. 4, c. 83, s. 4, "instruments of gaming," id. 
 
 Pacing Sweeps, 385, 437. 
 
 Sale of property by lot, 437. 
 
 Attempt to evade the law, 438. ^ 
 
 Art Unions, id. 
 
 A Lottery of Houses, id. 
 
 Ballot in Land Societies, 439. 
 
 Allotment or partition by lots, id. 
 
 Choice of allotments, id. 
 
 The Conservative Land Society, id. 
 
 Periodical drawings, 440. 
 
 EejDayment of money, id. 
 
 LUNGS. 
 
 Hepatized, 94. 
 
 M. 
 
 MAIMING. 
 
 Maiming Horses felony, 62. 
 
 Distinction between maiming and wounding, id. 
 
 Evidence of malicious, 63. 
 
 MALLENDEES, 94. 
 
 MANGE, 94. 
 
 MANOEIAL EIGHTS. 
 
 Under Inclosure Acts, 360. 
 
 I^IANSLAUGHTEE. See Negligent Driving. 
 "Where killing a person held to be, 297. 
 Defence of contributory negligence in case of, 298. 
 Evidence identical with that required to establish actionable 
 
 negligence, 328. 
 Turning a dangerous animal, or a vicious Horse, on a 
 
 thoroughfare or common, 355. 
 
 MANSUET^ NATUE^, 349. 
 
 MAEKETS. See Fairs and [Markets overt. 
 
 MAEKETS AND FAIES CLAUSES ACT. 
 Horse " an article" within that Act, 57. 
 
 MAEEIED WOMAN. 
 
 May be an agent, 27. 
 
 Cannot bind herself by a contract, 161, 162. 
 Nor her husband by a fraudulent contract, id. 
 She is responsible for torts committed by her, 162. 
 Keeping a Gaminghouse, 457. 
 
INDEX. 623 
 
 MAEY. See Philip asb Mary. 
 
 MASTER AND SERVANT. See Servant. 
 
 MASTER OF HOUNDS. 
 Liable for damage, 359. 
 When done by the field, id. 
 
 MASTER OF THE HORSE. 
 
 "What disputes he may decide, 549. 
 
 MASTIFF. 
 
 Injxiry by, 350. 
 
 MATCH. 
 
 Between Horses, 390. 
 At billiards, 418. 
 "Walking match, 419. 
 
 ]VIEMORAND"UM. See Note or Memorandum in Writing. 
 MERCANTILE LAW AMENDMENT ACT, 176. 
 
 METROPOLITAN DISTRICT. 
 Cockfighting, &c., 441. 
 Entering Betting-houses within, 455. 
 Or Gaming-houses within, 460. 
 
 MISCHIEVOUS ANIMALS, 347. 
 
 MISREPRESENTATION. 
 Damages for, 211. 
 
 And see Fraudulent Contracts. 
 
 MISTAKE. 
 
 Money paid under, 178. 
 
 MOCK AUCTIONS. 
 
 An offence at common law, 51. 
 
 MONEY. 
 
 Paid under a mistake, 178. 
 
 Borrowed to pay Bets, 427. 
 
 Deposited for Gaming, 432. 
 
 Sum of, to be awarded to winner, 433. 
 
 Staked in a Public-house, 441. 
 
 Lent for Gaming, 442. 
 
 Lent for Stakes of Prize-fight, id. 
 
 Lost at Play, 443. _ 
 
 Received in a Betting-house, 453. 
 
 Found in a Gaming-house, 460. 
 
 MONEY FOUND TO BE DUE UPON AN ACCOUNT 
 STATED. See Account Stated. 
 
 MONEY HAD AND RECEIVED. 
 For repayment of the price, 178. 
 For repayment of part of the price, id. 
 For price of Horse wrongfully sold, 179. 
 
(324: INDEX. 
 
 MONEY HAD AND HECEIYED -{continued). 
 Subject to certain conditions, 179. 
 
 Where Conditions of Sale have not been comj^lied with., 188. 
 Proof for the plaintiff, 185. 
 Defence, 195. 
 Damages, 205. 
 
 J^IOEAL FEAUD, 150. 
 
 MOETGAGE. 
 
 Given for a Gaming consideration, 425, 444. 
 
 Void between the parties, 444. 
 
 Good in the hands of a bond fide holder, {d. 
 
 MOVEABLE BOX. 
 
 Within Eing, a " place" within the Betting Acts, 152. 
 
 MOVEABLE DESK. 
 
 A " place" within Betting Acts, 450. 
 
 MUEDEE. See Negligent Driving. 
 
 N. 
 
 NAME. 
 
 Giving false, or address, in Gaming-house, 462. 
 
 NASAL GLEET, 95. 
 
 NATUEAL USEFULNESS, 72. 
 
 NAVICULAE JOINT DISEASE, 94. 
 
 NEGLIGENCE. See Hiring Horses, Borrowing Horses. 
 
 NEGLIGENT DEIVING. 
 
 Definition of negligence, 296. 
 
 Negligent driving, id. 
 
 Where killing a person is held to be Murder, id. 
 
 Where killing a person is held to be Manslaughter, 297. 
 
 Burthen of proof, id. 
 Furious driving, id. 
 Carriages racing, id. 
 Driver unable to pull up, id. 
 Causing death of passenger, 298. 
 Defence of contributory negligence, id. 
 "\Miere killing a person is held to be Accidental Death, id. 
 
 And the driver is not liable, 299. 
 Trotting a waggon along a road, id. 
 Trotting a waggon along a street, id. 
 Eemarks in East's Pleas of the Crown, id. 
 Where streets are unusually crowded, id. 
 Where driver is indictable under 24 & 25 Vict. c. 100, 
 
 s. 35 . . 300. 
 Furious driving in the Metropolitan Police District, id. 
 Power of police constables, id. 
 Conviction no bar to action of Tresjxiss, id. 
 
INDEX. 625 
 
 NEGLIGENT -DBIVING— {continued). 
 
 Where party injured by negligent Driving may maintain 
 
 an action, 300. 
 Duty of drivers of public and private vehicles, id. 
 Action lies for negligence in the care of vicious Horses, 
 
 &c.,301. 
 Where another person strikes a Horse, id. 
 Damages recovered in Trespass, id. 
 Driving furiously round a corner, id. 
 Mail Cart rapidly entering Post-Office Yard, id. 
 Frightening a Horse by a Fire-basket, id. 
 
 By Van left on Eoadside, 302. 
 
 Judgment in Harris v. Mohbs, 303. 
 
 By blowing off Steam, 305. 
 Rules as to civil liability, 305. 
 Negligence on one side only, id. 
 Passenger thrown from an Omnibus, 306. 
 Horse and cart left standing in the street, id. 
 Damage from tackle breaking, 307. 
 Or from defect in the carriage, id. 
 Negligence on both sides, id. 
 Where the negligence of injured party did not contribute to 
 
 the accident, 308. 
 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 on the part of Plaintiff, 309. 
 On the part of the Defendant, id. 
 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, 310. 
 Judgment of the Court of Queen's Bench, id. 
 Where no negligence on the jjart of the defendants, 314. 
 Law deducible from these cases, id. 
 Remarks on Abbott v. Macfie, id. 
 A heap left on a highway, 315. 
 Opportunity of seeing the obstruction, id. 
 Running over stones at night, id. 
 Leaving the highway, id. 
 Excavation a public nuisance, 316. 
 Trespasser may maintain an action, id. 
 True test of legal liability, id. 
 
 Owners of private ways may be liable for negligence, id. 
 Even where injury caused by intervening act of third party, 
 
 317. 
 Liability of a Contractor, id. 
 
 Where there are several ways of doing a thing, 318. 
 Liabilitj'^ of an employer, id. 
 What is the question in such cases, id. 
 Drain repaired by an ordinary but skilful labourer, id. 
 Stones left by a Sub-Contractor, 319. 
 Surveyor of Highways guilty of neglect of Statutory Duty, 
 
 id. 
 Performance of an ordinary domestic duty, id. 
 Manure left on a road, 320. 
 
 o. s s 
 
626 INDEX. 
 
 NEGLIGENT I)mYl^G—{cordinued). 
 
 With regard to works executed under Local Acts, 320. 
 
 Both parties to hiame, id. 
 
 Identification of child with person in charge of it, 321. 
 
 Identification of passenger with driYcr, id. 
 
 Eemarks in Smith's Leading Cases, id. 
 
 Power of selection, 322. 
 
 Altogether an Accident, id. 
 
 Eunning over a person at night, id. 
 
 Where it is the result of the sudden fright of the Horse, 
 
 323. 
 HarmnacJi v. White, id. 
 Driver not calling out, 324. 
 Horse running away, id. 
 Qualification of rule, 325. 
 
 Where defendant knows that Horse is unmanageable, id. 
 Or a kicker, id. 
 
 Proof of neghgence must be affirmative, id. 
 When evidence is equally consistent with negligence and 
 
 no negligence, 326. 
 Where a Horse straying in a Highway kicked a child, 
 
 327. 
 Horse kicking at a sale, id. 
 Accident itself sometimes affirmative proof of negligence, 
 
 id. 
 Evidence identical with that required for manslaughter, 328. 
 As to demand of jDarticulars in actions for negligent diiving, 
 
 id. 
 
 NEGLIGENT DEIVING BY A SEEVANT. 
 
 When the Master was liable according to fonner decisions, 
 
 331. 
 Liability now held to be more extensive, 332. 
 Limpus V. General Omnibus Comjyany, id. 
 Acts done within employment and for master's interest, id. 
 If Servant vindictively strikes Horse with his whip, 333. 
 Instructions of Master, if disregarded, immaterial, id. 
 Master liable, if acts are done for his benefit, id., 334. 
 
 Unless done out of the Servant's employment, 334. 
 Liability of Cab Proprietors, id. 
 
 Eor loss of luggage, 335. 
 
 Or personal injury, id. 
 
 Eelationship between Proj)rietor and Driver, id. 
 Master and Servant driving together, id. 
 Servant entrusting the reins to a stranger, id. 
 Servant striking the Horse of another, 336. 
 Servant striking jDassenger, id. 
 
 Guard of omnibus using undue violence to passenger, id. 
 Servant removing an obstruction, 337. 
 Servant acting imj^roperly, id. 
 Making a detour for his own purposes, id. 
 Servant acting contrary to his trust, 338. 
 Taking his Master's Horse without leave, id. 
 Ee-entering on duty, 339. 
 Taking the Horse of another, id. 
 
INDEX. 627 
 
 NEGLIGENT DEIVING BY A SEEV ANT— {contimml). 
 No express authority of Master necessary, 34o. 
 Question for the jury, id. 
 Master's name on the cart, id. 
 Giving an address, id. 
 Action for bodily hurt, id. 
 
 Liability of Master and Servant respectively, 341. 
 Negligence of fellow- servant, id. 
 
 Master bound to use due care in selection of Servants, id. 
 Liability of Cab -proprietor to Driver, id. 
 Action by representatives of a person killed, 342. 
 Within what time it may be brought, id. 
 By whom it may be brought, id. 
 By persons beneficially interested, id. 
 Construction to be put upon the condition in 9 & 10 Yict. 
 
 c. 93, id. 
 Plaintiff must prove pecuniary loss, 343. 
 Plan of the locality, id. 
 
 Conviction for furious driving a bar to subseqiient action, id. 
 Damages, 344. 
 
 Eesponsibility for "all possible consequences," id. 
 Damage too remote, id. 
 Injury done to a carriage, 345. 
 
 Measure of damages where a Horse has been injured, id. 
 Damages where a person has been killed, id. 
 How limited, id. 
 
 Cannot be given for funeral expenses, 34G. 
 Damages not given to a class, but to individuals, id. 
 
 NEEVED HOESE, 94. 
 
 Held to be unsound, 95. 
 
 NOMINAL DAMAGES, 205. 
 
 NOJ^nNATING THE WINNEE, 419. 
 
 NOSE. 
 
 Chronic discharge, 95. 
 Nasal gleet, id. 
 
 NOT LYING DOWN, 96. 
 
 NOTE. See Bank Note, Promissory Note, Sold Note. 
 
 NOTE OE I^IEMOEANDUM IN WEITING. 
 Under Statute of Frauds, 6. 
 Written agreement, 17. 
 No particular form required, id. 
 Names of the contracting Parties, 18. 
 Terms of the Contract must be stated, id. 
 Terms may be collected from more than one document, id. 
 The Stamp Act, id. 
 Catalogue at a Sale, id. 
 Price where agreed upon, 19. 
 Where no Price is agreed upon, 20. 
 Where no mode or time is stated, id. 
 Contract by letter, id. 
 
 ss2 
 
628 INDEX. 
 
 NOTE OE MEMOEANDUM IN WETTING— (co?i««me(Z). 
 Sufficient between the parties, 20. 
 Must express all the terms of the Agreement, id. 
 Mutual assent, 21. 
 Introduction of new term, 21, 22. 
 When the Contract is complete, 23. 
 Terms cannot be varied by parol, id. 
 But may be exj)lained, 24. 
 Evidence that goods are supplied on credit, id. 
 As to matters antecedent to the writing, id. 
 As to condition precedent, id. 
 Memorandum made after action, 25. 
 A foreign Contract, id. 
 
 Memorandum drawn up by Agent of both parties, 27. 
 Though unsigned, sufficient, id. 
 
 By agent of seller, at request of buyer, not sufficient, 28. 
 By Auctioneer, 43. 
 By Auctioneer's Clerk, id. 
 
 NOTICE. 
 
 Of conditions of sale, 46. 
 
 Of the Breach of Warranty, 163. 
 
 Of the Nature of the Unsoundness, 191. 
 
 Buyer not bound to give it in either case, 163, 171, 191. 
 
 Length of time before it is given, 163, 171. 
 
 By Eailway Companies with regard to carrying, 269, 272. 
 
 And see Carrying Horses. 
 General, invalid, 272. 
 
 Of consignee's refusal of goods to consignor, 283. 
 Not to trespass, 364. 
 
 NUDE ASSEETION, 152. 
 
 O. 
 
 OMNIBUS. 
 
 Eacing, 297. 
 
 Passenger thrown from one, 306. 
 Case of Thorocjood v. Bryan, 321. 
 Case of Limpus v. General Omnibus Company, 332. 
 Guard of, using undue violence to drunken passenger, 336. 
 Eegulations in London, 521, 578. 
 And see Negligent Drfv^ing. 
 
 OPACITY OF THE LENS. 
 
 Held to be an Unsoundness, 96. 
 
 OEDEE. 
 
 Of Court, for sale of Horse, 172. 
 
 OSSIFICATION OF THE CAETILAGES, 96. 
 
 OTTEE. See Hunting and Trespassing, 357. 
 
 OYEEEEACH, 96. 
 
 OWNEESHIP. 
 
 Warranty of, by Auctioneer, 48. 
 And see Acts of Ownership. 
 
ixDEX. 629 
 
 PAEOL EVIDENCE. 
 
 Written contract cannot be varied by, 18, 23. 
 But may be explained, 24. 
 
 PAROTID GLAND. 
 
 Ulcerated, 97. 
 
 PAETICULAES. 
 
 In actions for negligent driving, 328. 
 
 PAETICULAES OF SALE. 
 
 Notice of, 47. 
 
 PAET PAYMENT. See Earnest and Pakt Payment. 
 
 Only a part performance in respect of contract under Statute 
 of Frauds, 17. 
 
 PAETY TO BE CHAEGED. See Signature. 
 
 PASSAGE. 
 
 Illegal game, 380, 434. 
 
 PATENT DEFECTS. 
 
 Not covered by a Warranty, 133. 
 
 In wbat they consist, id. 
 
 Loss of an Eye or Tail, id. 
 
 How far the loss of an Eye is Patent, id. 
 
 " Bright Eye," 134. 
 
 Convexity of the Eye, id. 
 
 Where the buyer knows the Defect, id. 
 
 Where Defects are discussed, id. 
 
 Conclusion to be drawn from the cases, 136. 
 
 Suspected Defects, 137. 
 
 Where seller objects to examination, id. 
 
 Purchase without inspection, id. 
 
 Caveat emptor does not apply, id. 
 
 Purchase after inspection, 151. 
 
 PAYMENT. See Delivery and Payment. 
 Proof of Payment of Price, 187. 
 
 PEDIGEEE. 
 
 Selling according to, 141. 
 When first attended to, 377. 
 Entry for the Queen's Plate, 548. 
 
 PEEIODICAL DEAWINGS. See Lotteries. 
 
 PHAEAOH. 
 
 An illegal game, 434. 
 Penalty for setting up, 458. 
 
 PHAEAOHS. 
 
 The time of the, 368. 
 
630 INDEX. 
 
 PHILIP AND MAEY. 
 Reign of, 374. 
 Statutes. See Table of Statutes. 
 
 PIGEON SHOOTING. 
 
 Ground for, held to be a " place" within Betting Acts, 450. 
 
 PIMPLE ON THE SKIN, 101. 
 
 PLACE. 
 
 " Open and public place" under o Geo. 4, c. 83, s. 4 . . 437. 
 " Using a place" for betting purposes under 16 & 17 Yict. 
 c. 119. .449—452. 
 And see Betting Hottses. 
 
 PLAN OF THE LOCALITY. 
 Of an accident, 343. 
 What it should show, id. 
 
 PLATE. 
 
 To be awarded to the winner, 391. 
 Queen's Plate Articles, 548. 
 
 PLAY OE PAY. 
 
 Evidence admitted to explain, 410, 412. 
 
 Its effect where the Horse does not start, 411. 
 
 PLEADING AND EVIDENCE FOE THE PLAINTIFF. 
 Executory and executed contracts, 174. 
 Action for price of Horse, 175. 
 Action for not accepting, id. 
 Eesale of the goods, id. 
 Action for detention of goods, id. 
 Delivery of specific goods, 176. 
 Action for not delivering, id. 
 
 Goods sold and delivered for payment of the price, 177. 
 Action maintainable on rescission of contract by one of the 
 
 parties, id. 
 Horse sold and delivered, id. 
 
 Money had and received for repayment of the price, 178. 
 Under a mistake, id. 
 Money had and received for repayment of jmrt of the 
 
 price, id. 
 Money had and received for price of Horse wrongfully 
 
 sold, 179. 
 Money received subject to certain conditions, id. 
 Action on a breach of warranty, id. 
 Action for a false warranty, id. 
 Liability of an infant, id. 
 Action for fraudulent representation, 180. 
 Statement of facts in action for breach of contract, id. 
 Statement of facts in action for deceit, id. 
 Statement of the consideration, id., 181. 
 If the Horse turn out lucky, 181. 
 Words used in the statement, id. 
 Statement of the warranty, 182. 
 Condition annexed to the warranty, id. 
 
INDEX, 631 
 
 PLEADING AND EVIDENCE FOR PLAINTIFF— (conicZ.).. 
 Qualification of the warranty, 182. 
 The i^urcliase and the payment, id. 
 
 Statement of the false warranty or fraudulent representa- 
 tion, 183. 
 Statement of the breach, id. 
 Statement of the damage, 184. 
 Proof in goods bargained and sold, id. 
 Proof in an action for not accepting, id. 
 Meaning of readiness and willingness, id. 
 Proof in an action for not delivering, 185. 
 Proof in goods sold and delivered, id. 
 Proof in money had and received, id. 
 Proof of an account stated, 186. 
 Proof in an action on a Breach of warranty, id. 
 Proof in an action for a false warranty, id. 
 Where it is doubtful whether false warranty is proveable, id. 
 Proof in an action for fraudulent representation, 187. 
 Proof of the bargain and sale, id. 
 Proof of the consideration, id. 
 Proof of payment of the price, id. 
 Appropriation of the money tendered, 188. 
 Proof of the promise or warranty, id. 
 A warranty not contained in the receipt, 189. 
 "Warranty in a receipt not always conclusive, id. 
 Written warranty requires no agreement stamp, id. 
 Where authority to warrant need not be proved, 190. 
 Where authority to warrant must be proved, id. 
 Proof of power to rescind, id. 
 Proof of fraudulent representation, id. 
 Proof of the breach of warranty, 191. 
 Notice of the nature of the unsoundness, id. 
 Evidence as to unsoundness, id. 
 Matter of fact alone, id. 
 Either fact or veterinary opinion, id. 
 Both fact and veterinary opinion, id. 
 Veterinary opinion alone, 192. 
 Evidence as to vice, id. 
 Evidence as to unfitness, &c., id. 
 Proof of rescission, id. 
 Proof of tender, id. 
 
 PLEADING AND EVIDENCE FOE THE DEFENDANT. 
 Admissions by pleading, 192. 
 What must be specially pleaded, id. 
 Specific denials, 193. 
 Denial of contract, id. 
 Allegation of malice, &c., id. 
 Defence for detention of goods, id. 
 Defence for goods bargained and sold, and for not accepting, 
 
 id. 
 Defence in an action for not delivering, 194. 
 Where Evidence of usage of trade is not admissible, id. 
 Defence for goods sold and delivered, id. 
 Defence to action on a cheque for the price, id. 
 
632 INDEX. 
 
 PLEADING AND EVIDENCE FOE DEFENDANT— (co»fd.)- 
 Evidence in reduction of damages, 195. 
 Defence for residue of tlie price, id. 
 Defence for money had and received, id. 
 Defence to an action on a breach of warranty, id. 
 A surreptitious warranty, id. 
 Condition annexed to a warranty, 196. 
 Evidence in reduction of damages, 197. 
 Defence to an action for a false warranty, id. 
 Defence to an action for fraudulent representation, id. 
 Disputing the warranty, id. 
 Disputing the unsoundness, &c., id. 
 Subsequent recovery, 198. 
 Competency of witnesses, id. 
 
 PLUGGING, 158. 
 
 POLICE. See Coxstables, Betting Houses, Gaming Houses. 
 
 POLICE MAGISTEATE. 
 
 Powers equal to that of two justices, 454, n. 
 
 POLICY. 
 
 Wagering, 424. 
 
 POLL-EVIL, 97. 
 
 POSSESSION. 
 
 Constructive, by vendee, 9. 
 
 Only presumptive proof of ownership, 28. 
 
 POST. See Letter, Price. 
 
 POST-HOESES. 
 
 Innkeeper not liable for refusing to supply, 217. 
 Statutes, 578. 
 
 POST OBIT. 
 
 When security for a bet may be set off against subsequent 
 
 losses, 410. 
 Assigned, held good, 447. 
 
 POST-OFFICE OEDEE. 
 Payment of debt, 34. 
 
 POSTING. 
 
 Damage done when, 252. 
 
 P. P., meaning of, 411, 412. 
 
 PEESCEIPTION. 
 
 Prescriptive right to kill game, 362. 
 
 To resort to races, a good custom, but not an easement 
 within Prescription Act, 390. 
 
 PEICE. 
 
 Under 10?., 4. 
 
 Day agreed upon for payment, id. 
 
 \01. or upwards, 6. 
 
 I 
 
INDEX. 633 
 
 F'RlCE—{co7itinued). 
 
 When agreed upon, material part of bargain, 19. 
 
 *' On moderate terms," held sufficient statement, id. 
 
 A reasonable price is to be inferred, when none stated, 20. 
 
 But price should be ascertained, or ascertainable, 28. 
 
 Condition as to, ascertainable, id. 
 
 Effect where not ascertainable, 29. 
 
 When sent by post and lost, 34, 
 
 Who entitled to receive it at an auction, 52. 
 
 When price vests in vendor at an auction, 53. 
 
 Where auctioneer is innocent agent of principal's fraud, id. 
 
 A sound price not tantamount to a warranty, 117. 
 
 Action for price of Horse, 175. 
 
 Goods sold and delivered for payment of, 177. 
 
 Money had and received for payment of, 178. 
 
 For repayment of part of the price, id. 
 
 For price of Horse wrongfully sold, 179. 
 Trooi oi paymejit of price, 187. 
 Defence to action for residue of, 195. 
 
 PEICKINGr, when shoeing. See Fareiers. 
 
 PEINCTPAL. 
 
 Effect of, not being disclosed by auctioneer, 49. 
 
 PEINOIPAL AND AGENT, 123. See Agent. 
 
 FEINTED PAETICULAES OF SALE. 
 
 Auctioneer not to vary from terms of, 44. 
 
 PEIVATE WAYS. See Ways. 
 
 PEIZE. 
 
 Chance of obtaining, too remote ground for damages, 292. 
 To be awarded to the winner, 391. 
 
 PEIZE FIGHT. 
 
 Money lent for stakes of, 442. 
 
 PEOFESSIONAL JOCKEY, 403, 408, 411. 
 
 PEOMISSOEY NOTE. See Bill of Exchange. 
 Breach of warranty no defence in action on, 172. 
 Unless there be a total failure of consideration, id. 
 Given for a Gaming consideration, 420, 425, 444. 
 Void between the parties, 444, 445, 446. 
 Good in the hands of a bond fide holder, 420, 444. 
 Effect of payment, 420, 444. 
 Identification of, 443. 
 
 PEOOFS. See Pleading and Evidence. 
 
 PUBLIC WAYS. See Highways. 
 
 PUBLICAN. 
 
 AUoTving gaming, 441, 442. 
 
 Lending money for unlawful gaming, 442. 
 
634 INDEX. 
 
 PUFPING. 
 
 At an Auction, 49. 
 Sale void, 50. 
 
 PUMICED FEET, 97. 
 
 PUNCTUEE. 
 
 In nailing, 229. 
 
 PUECHASE. 
 
 Without inspection, 137. 
 
 Of goods, with, preconceived design of not pajing for them, 
 160. 
 
 PUTTINa STONE, 384, 434. 
 
 Q. 
 
 QUALITY. 
 
 "Warranty of, 113, 114. And see "Waerais^ty. 
 
 QUEEN'S PLATE. 
 Ai-ticles, 548. 
 
 QUIDDING, 97. 
 
 QUIET. 
 
 In harness, 118, 120, 121, 122. 
 
 QUITTOE, 97. 
 
 QUOITS, 384, 434. 
 
 E. 
 
 EACE-CqUESE. 
 
 In neighbourhood of metropolis to be licensed, 387. 
 
 EACE-HOESE. 
 
 Eepeal of Duty payable on, 385. 
 Eights of part-owners of, 389. 
 Scratching a Eace-Horse, 391. 
 
 EACING, WAGEES AND GAMING. 
 History of, 368. 
 Eacing lawful game, 433. 
 The Law as to Eacing, 389. 
 Eights of part-owners of a Eace-Horse, id. 
 Custom to race, id. 
 To resort to races, id. 
 
 Though a good custom, not an easement within the Pre- 
 scription Act, 390. 
 Stakeholders, id. 
 Sweepstakes, id. 
 Matches, id. 
 
 The Act for the Suppression of Betting Houses, id. 
 Entry for a Eace, 391. 
 Eace not to be run within a year, id. 
 " Scratching " a Eace-Horse, id. 
 
INDEX. 635 
 
 EACING, WAGEES AND GAMlt=^G— (continued). 
 Terms of a Eace, 408. 
 Eules of a regatta, id. 
 
 Stewards, &c., cannot waive any Condition of a Eace, 409. 
 Eules of the Jockey Club, 410, 
 Arbitration of the Jockey Club, id. 
 Sporting Phraseology, id, 
 A "Selling" Eace, 411. 
 A professional Jockey, id. 
 Horse regularly hunted with Hounds, id. 
 Match for a particular meeting, id. 
 Betting on a Eace not illegal, 415. 
 
 EACKETS, 383, 434. 
 
 EAILWAY. See Oaebying Hoeses, Hunting and Tees- 
 passing. 
 
 EAM. 
 
 Scienter in case of injury by, 354. 
 
 EATE. 
 
 Increased, for Carriage, under 17 & 18 Vict. c. 31, s. 7. 
 See Caeeying Hoeses. 
 
 EAT-TAILS, 98. 
 
 EEADINESS AND WILLINGNESS. 
 Averment of, to deliver, 175. 
 
 Not sufficient in a case of condition precedent, 175. 
 To accept, 177. 
 Meaning of, 185. 
 Defence that plaintiff was not ready and willing, 194. 
 
 EEAEING, 98. 
 
 EECEIPT. See Acceptance and Eeceipt, Stamp, Deliveey, 
 Pleading. 
 
 EECOYEEY. 
 
 Subsequent, no defence to action on breach of Warranty, 
 198. 
 
 EECOYEEY OF STOLEN HOESES. See Stolen Horses. 
 
 EEGATTA, 383, 433. 
 Eules of, 408. 
 
 EEGULATION OF EAILWAYS ACTS, 287, 288. And see 
 Caeeying Hoeses. 
 
 EEINS. 
 
 Breaking, 307. 
 
 No defence, id. * 
 
 Entrusted to a Stranger, 335. 
 
 EEMITTENT INFLAI^fMATION, 76. 
 
 EEPLEVIN. 
 
 Maintainable for any unlawful taking of goods, 68. 
 
636 INDEX. 
 
 EEPOSITOEIES. See Auctions and Eepositories. 
 Eea's Eepository in Soutli-wark not market overt, 56. 
 
 EEPEESENTATION. See Warranty distinguished from 
 Eepresentation and Fraudulent Contracts. 
 Does not affect a written Warranty, 118, 119. 
 Untrue, if immaterial, does not avoid sale, 123. 
 Distinguished from Warranty, 138. 
 The Correct Eule, 141. 
 False, requisites of action for, 152. 
 Known to be untrue, 153. 
 Made before sale by auction, id. 
 Made by a bidder at, 154. 
 Not known to be true, id. 
 Not founded upon a well-grounded belief, id. 
 To prevent inquiries, id. 
 Through a third party, 155. 
 By a third party, id. 
 Bond fide, id. 
 
 As to the character of another, id. 
 Influence of, need not be proved, 151. 
 
 EESCISSION. 
 Eight of, 4. 
 
 Action maintainable on, 177. 
 Money had and received lies, 178. 
 Proof of Eescission, 186, 190, 192. 
 
 EE-SELLING. 
 
 Damage on, with false warranty, 210. 
 
 EESEEVE. 
 
 Sale without, 47. 
 
 EESTITUTION. 
 
 Order for, of stolen goods, 66. 
 
 If comj)lied with at once, no special damages claimable, id. 
 
 EETUEN. See Breach of Warranty. 
 Condition as to, 53, 168, 169. 
 If unsound, 168. 
 If unsuitable, 169. 
 If disapproval capricious, 170. 
 
 EHEUMATISM, 98. 
 
 EICHAED THE FIEST. 
 Eeign of, 370. 
 
 EICHAED THE SECOND. 
 Eeign of, 370. 
 Statutes. See Table of Statutes. 
 
 EINGBONE, 98. 
 
INDEX. 637 
 
 EISK. 
 
 After sale, 31. 
 
 Condition as to, in contract for carriage of Horse, 274. 
 
 Owner's risk, 276. And see Cabeying Horses. 
 
 EOAD. See Eule of the Eoad. 
 
 EOAEING. 
 
 Decisions on the subject, 99. 
 
 EOLLING, 100. 
 
 EOUGE ET NOIE, 457. 
 
 EOULET, OR EOLY-POLY. 
 Prohibited, 435. 
 
 EOWING MATCH, 383, 406, 408. 
 
 EULE. 
 
 As to Acceptance and Eeceipt, 7. 
 
 As to Earnest, the old rule, 16. 
 
 As to Sales in Market Overt, 55. 
 
 As to Unsoundness, 71. 
 
 As to Vice, 74. 
 
 As to Warranty of title, or quality, 113, 114. 
 
 As to "Warranty of fitness for a purpose, 120 — 122. 
 
 As to Undisclosed Principal, 125. 
 
 As to a Servant binding his Master, 132. 
 
 As to Warranty and Eepresentation, 141. 
 
 As to measure of Damages for Breach of Warranty, 205. 
 
 As to Farriers, 230. 
 
 In trespass, 256. 
 
 As to civil liability in negligent driving, 305, 308. 
 
 EULE OF THE EOAD. 
 
 Eight side of the road, 328. 
 
 Driving on the wrong side in the dark, id. 
 
 Seeing a person coming on his wrong side, id. 
 
 Does not justify a wanton Injury, 329. 
 
 Eule of the Road not inflexible, id. 
 
 Light load meeting heavy, id. 
 
 Parties meeting on a sudden, 330. 
 
 Eule of the Eoad applies to Saddle Horses, id. 
 
 Ordinary vehicles meeting Tramcars, id. 
 
 Foot Passengers, id. 
 
 Eule of the Eoad does not apply, 331. 
 
 Going over a crossing, id. 
 
 Nuisance on Public Highway, id. 
 
 Horse and Carriage before Tradesman's door, id. 
 
 EULES OF THE JOCKEY CLUB. 
 Admitted as evidence, 410. 
 Submission to arbitration of, id. 
 
 EULES OF EACING, 551. 
 
638 INDEX. 
 
 EUNNING AWAY, 100. 
 
 EUNNING HOESES. 
 Meaning of, 370. 
 
 S. 
 SADDLE GALLS, 100. 
 
 SADDLE HOESES. 
 
 Eule of the Eoad applies, 330. 
 
 SAILING MATCH, 383, 433. 
 
 SALE. 
 
 What is, 3. 
 
 Of goods under 107., 4. 
 
 Hand sale, 5. 
 
 Of specific chattel, 28. 
 
 "Without reserve," 47. 
 
 Auctioneer entitled to commission on sale, not bj' auction, 
 
 54. 
 Avoided by fraud, 123. 
 By an agent, id. 
 With all faults, 156. 
 Fraudulent, 159. 
 
 Effect of, on resale to innocent vendee, id. 
 Of goods bought by person when drunk, 162. 
 By order of Court, 172. 
 Of property by lot, 437. 
 Conditions at Aldridge's, 579. 
 Conditions at Tattersall's, 581. 
 
 SALE OE EETUEN, 170, 177. 
 
 SALLENDEES, 101. 
 
 SANDCEACK, 101. 
 
 SCAB, 102. 
 
 SCHEDULE. 
 
 Of Weights, Queen's Plates, 550. 
 Of Distances, id. 
 
 SCIATIC NEEVE, 106. 
 
 SCEENTEE. _ 
 
 Where injury has been done by animals, 347. 
 And see Ferocious and Vicious Animals. 
 
 SCOTLAND. 
 
 Extension of Betting Act to, 456. 
 
 SECUEITIES. See Gaming, Gaming Houses. 
 
 SELLEE. 
 
 Effect of his becoming bailee, 8. 
 When he may disaffirm sale, id. 
 
INDEX. 639 
 
 Q'EL'LE'R— {continued) . 
 
 May become agent of buyer, 10. 
 
 Seller's lien for the price, 31. 
 
 His right of stoppage in transitu, 32. 
 
 Not entitled to notice of unsoundness, 163. 
 
 Not bound to take back unsound Horse,, id. 
 
 Unless tbe contract was executory, 164. 
 
 Or there is fraud, 168. 
 Where he refuses to take back the Horse, 171. 
 
 SEEYANT. See Warranty and Sale by an Agent, HraiNa 
 
 Horses. 
 May set up title of master, 66. 
 Damage caused by servant's negligence, 125. 
 Warranty by servant as special agent, 127. 
 As general agent, 128. 
 
 Does authority to sell imply authority to warrant, id. 
 Warranty by a servant after sale, 130. 
 By a servant forbid to give one, id. 
 
 Master unwilling to stand by his servant's warranty, 131. 
 Eule as to servant binding his master, 132. 
 When farrier is answerable for his servant, 229. 
 Horse hired by a servant, 251. 
 Horses driven by the owner's servants, 252. 
 Horses driven about town by the owner's servants, id. 
 Hirer liable where he might have controlled his servant, 254. 
 Jury must decide whether servant is acting for hirer or 
 
 owner, 257. 
 Borrowed Horse cannot be used by a servant, 261. 
 Test whether person employed is a contractor or a servant, 
 
 318. 
 Negligent driving by a servant, 331. And see Negligent 
 
 Driving by a Servant. 
 Striking another's Horse, 333, 336. 
 Striking a Passenger, 336. 
 
 Negligence of fellow-Servant, or stranger volunteering, 341. 
 Master bound to use care in selection of servants, id. 
 
 SEVEEABLE CONTEACT. 
 What is, 3. 
 
 SHAETS. 
 
 Breaking, 307. 
 
 SHEEP. 
 
 Dog worrying, 252. See Ferocious and Vicious Animals. 
 
 SHIVEEING, 102. 
 
 SHOULDEE, BEUISED, 101, n. 
 
 SHOULDEE-TIED, 137. 
 
 SHYING. 
 
 A vice, 102. 
 
 An unsoundness, id. 
 
640 INDEX. 
 
 SIDEBONES, 103. 
 
 SIGNATURE. 
 
 By the Party to be cliarged, 25. 
 
 What is necessary, id. 
 
 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. 
 What is sufficient, as to initials, id. 
 By a printed name, id. 
 By filling up a printed invoice, id. 
 Of other party unnecessary, 26. 
 In order book, on fly-leaf, sufficient, id. 
 Of instructions to telegraj^h clerk, id. 
 By Seller insufficient, id. 
 Sufficient when made for another purpose, id. 
 By an Agent, id. 
 
 What equivalent to, under Statute of Frauds, 27. 
 Authority may be conferred by word of mouth, id. 
 Auctioneer, Agent and Witness of both Parties, id. 
 Auctioneer's Clerk, id. 
 
 SKITTLES. 
 
 Conspiracy to cheat at, 432. 
 A lawful Game, 434. 
 
 SLAUGHTERING HORSES. 
 Statutes, 579. 
 
 SLIPPING THE COLLAR, 103. 
 
 SMITH. See Farrier. 
 
 SOLD NOTE. 
 
 Memorandum within Statute of Frauds, 17. 
 May amount to a Warranty, 116. 
 
 SOUNDNESS. 
 
 Definition of, 71. 
 
 Important decision as to, 72, 73. 
 
 SPAVIN, 103, 191. 
 
 SPECIAL CONTRACTS TO CARRY. See Carrying Horses. 
 
 SPECIFIC GOODS, DELIVERY OF. 
 How enforceable, 176. 
 
 SPEEDY-CUT, 103. 
 
 SPLINT, 103. 
 
 Decision on the subject, 104, 191. 
 Not a patent defect, 134 — 137. 
 
 SPORTING PHRASEOLOGY. 
 Across country, 410. 
 A Selling Race, 411. 
 P. P., id. 
 
 SPRAIN AND THICKENING OF THE BACK SINEWS, 104. 
 
INDEX. . 641 
 
 STAG. See Hunting and Tkespassing, 357. 
 STAGGEES, 91. 
 
 STAKE. 
 
 Clerk of tlie Course usually Stakeholder, 392. 
 
 Has no right to the Stakes, id. 
 
 Ground of action against Stakeholder, id. 
 
 Position of Stakeholder towards Parties, if the Eace cannot 
 
 be, or is not to be run, id. 
 Cannot set oif an unpaid Stake, 393. 
 Where he may cash a cheque, id. 
 Stake must abide the event of a legal contract, id. 
 A Foot Eace, id. 
 A recent decision, 394. 
 Batty V. Marriott overruled, id. 
 Judgment of Lord Cairns, L. C, id. 
 Eecovery of Money paid on an illegal contract, 396. 
 "What the Party should do, id. 
 Demand before the Money is paid over, id. 
 French law as to the recovery of Stakes dej)0sited, 433. 
 English law, id. 
 
 Distinction between Stake and Bet, id. 
 16 & 17 Vict. c. 119, does not apply to Stakes, 453. 
 Bringing an action not sufficient, 397. 
 Where the Money is paid over without dispute, id. 
 Where a Horse is disqualified, 398. 
 Where owner knows the disqualification, id. 
 Proper Party to receive the Stakes, id. 
 Winner may maintain an action, 398, 399. 
 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, 400. 
 Where a Stakeholder may recover from the winner, id. 
 Money in the hands of Stakeholder does not pass as ' ' my 
 
 monies " under the Depositor's will, id. 
 Notice to Stakeholder to withdraw Stake, 415. 
 
 STAKEHOLDEE. See Stake. 
 Auctioneer a Stakeholder, 52. 
 
 STALLION-MASTEE. 
 Has a lien, 234. 
 
 For work done on a Sunday, 235. 
 
 STAMP. 
 
 Agreement admissible to prove fraud without, 160. 
 Agreement Stamj) not necessary to Warranty, 189. 
 
 STAND. 
 
 When Steward of Eace-course may order off, 412. 
 
 STAE-GAZEE, 105. 
 
 O. T T 
 
642 INDEX. 
 
 STATUTE OF FEAUDS. 
 The 4tli Section, 5. 
 
 Requisites under sect. 4, id. 
 
 Whole contract must bo in writing, id. 
 The 17th Section, 6. 
 
 Extended by 9 Geo. 4, c. 14, id. 
 
 AcceiDtance and Eeceii^t, 7. 
 
 Earnest, 15. 
 
 Part Payment, 16. 
 
 Note or Memorandum in writing, 17. 
 
 Bill of Parcels, id. 
 
 Catalogue at a Sale, 18. 
 
 Contract by Letter, 20. 
 
 Signature by Party to be charged, 25. 
 
 Signature by an Agent, 26. 
 
 Need not be authorized in writing, 27. 
 
 Clear recognition of Contract bj^ Parties sufficient, id. 
 
 Delivery and Payment, 28. 
 
 STEEPLE CHASES. 
 Lawful Grames, 433. 
 
 STEWAEDS. 
 
 Their duties, 401. 
 
 Disputes to be settled by them, id. 
 
 Award should be made by all, id. 
 
 Custody of the Stakes in the meantime, 402. 
 
 Legal position of Stewards, id. 
 
 Decision not necessarily invalidated by one of them being 
 
 interested, id. 
 Decision of two out of three Stewards held binding, id. 
 Stewards differ from legal arbitrators, 403. 
 Judge's powers do not accrue, when Eace is invalid, id. 
 Stewards' decision maintained by the Court of Exchequer, id. 
 Provisional decision, 404. 
 Appointment of a Judge, 405. 
 Negligence in not appointing, 406. 
 Decision of the L^mpii'e or Committee, id. 
 When jurisdiction has not attached, id. 
 Cannot waive any condition of a Eace, 409. 
 Where Course governed by rules of Jockey Club, 410. 
 Ordering off the grand stand, 412. 
 Ordering goods, 413. 
 
 STOCK JOBBING ACT. 
 Eepealedinl860..423. 
 
 STOLEN HOESES. 
 
 Eecovery of them, 63. 
 Sale in market overt, id. 
 Statutory regulations, 64. 
 
 Eecovery when sold under these regulations, id. 
 Owner must prove the Horse was stolen, id. 
 Sale out of market overt, id. 
 
 Eecovery when not sold under these regulations, id. 
 Proof of compliance with statute, 65. 
 
 Eule that owner must first endeavour to bring the thief to 
 justice, id. 
 
INDEX. 643 
 
 STOLEN llOnHEH—icordiuued). 
 
 To be taken witli modifications, 65. 
 Where the action is against a third partjr, 66. 
 Evidence of conversion, id. 
 Order for restitution, id. 
 Or action of 'Trover, id. 
 Applies to false pretences, 67. 
 And receiving stolen goods, id. 
 May be made ■where second bond fide purchase, id. 
 Order of police magistrate, id. 
 Where no special damages can be awarded, id. 
 Replevin for unlawful taking, 68. 
 
 Wrongful sale by Agent of Horse entrusted to him, id. 
 And see Hirixg Horses, Horse Stealing, and Fairs 
 AND Markets Overt. 
 
 STOPPAGE IN" TEANSITU. 
 Seller's right of, 32. 
 "When goods are held to be in, id. 
 When anything remains to be done by seller, id. 
 Effect of, 33. 
 
 STEANGLES, 105. 
 
 STEIKING. 
 
 Another's Horse, 301. 
 
 Servant striking another's Horse, 333, 336. 
 
 Servant striking Passenger, 336. 
 
 STEINGHALT. 
 
 Held to be an unsoundness, 105. 
 
 SUBSOEIPTION. 
 
 Agreement to subscribe to a Eace, 391. 
 
 SUNDAY. 
 
 Market overt in London on all days but Sunday, 56. 
 AVhen Inns may be open in England on, 214, 215. 
 Inns to be closed in Wales on, 215. 
 Billiard plajdng not allowed on, 464. 
 
 SUNDAY DEALING. 
 
 Law of King Athelstan, 35. 
 
 Statute of Charles 2, id. 
 
 Institution of proceedings under, id. 
 
 Farmers not within this Statute, 36. 
 
 Sale by a Horsedealer, id. 
 
 By an ordinary Person, id. 
 
 A subsequent ratification, id. 
 
 Breach of Warranty given on Sunday, 37. 
 
 Work done by a Stallion-master, 235. 
 
 SUEVEYOE. See Highway. 
 
 SWEEPS. 
 
 On Eaces, illegal, 437. 
 
 SWEEPSTAKES, 390. 
 
 tt2 
 
641 INDEX. 
 
 TABLES. 
 
 For Gaming, 460, 461. 
 
 May be taken, 460. 
 
 Evidence of a Gaming-liouse, 461. 
 
 May be destroyed, id. 
 
 TACKLE, 
 
 Breaking, 307. 
 No defence, id. 
 
 TAIL. 
 
 Loss of, 133. 
 
 TATTEESALL'S. 
 
 Conditions of Sale used there, 581. 
 
 TEMPOEARY DISEASE. 
 Unsoundness, 73. 
 
 TENDEE. 
 
 By buyer of Horse, 170. 
 
 Sale after, 171. 
 
 Notice instead of, id. 
 
 Length of time before notice of, id. 
 
 Api^ropriation of it, 188. 
 
 Proof of it, 192. 
 
 Necessary to recover keep, 206, 207, 208. 
 
 TENNIS, 383, 434. 
 
 THICIvENING OF THE BACK SINEWS, 107. 
 
 THICK-WIND, 107. 
 
 THINNESS OF SOLE. 
 
 Held not to be an Unsoundness, 107. 
 
 THOEOUGH-PIN, 108. 
 
 THEOUGH CAEEIAGE, 285, 287. And see Carryixg Houses. 
 
 THEUSH, 108. 
 
 TIME. 
 
 Eeasonable, as to delivery of goods by Carriers, 290. 
 Wager as to trotting against, 418. 
 
 TIME BAEGAIN, 423. 
 
 TIPSTEE. 
 
 Agreement with, void, 419. 
 
 TITLE. 
 
 Warranty of, 113, 114. 
 
 Dispute respecting, decided bj^ interpleader, 114. 
 
INDEX. 645 
 
 TORTS. 
 
 Married wouaan responsible for, 162. 
 
 Infants liable for, 179. 
 
 But not where substantial ground of action is contract, 180. 
 
 Damages in, 201. 
 
 TRADE MARKS, 145. 
 
 TRAINER. 
 
 Remedy against, for detaining a Horse, 176. 
 Has a Lien, 233. 
 
 TRAM CARS. See Rule of the Road. 
 
 TRAVELLER. 
 
 Innkeeper may serve bona fide traveller at any time, 216. 
 
 Onus of proof, id. 
 
 Innkeeper compellable to receive, id. 
 
 TRAVELLING EXPENSES. 
 
 In case of breach of warranty, 210. 
 
 TRESPASS. See Negligent DRivmG, Hunting and Tres- 
 passing. 
 May be maintained by agister, 240. 
 Hirer may be liable in, 254 — 257. 
 Master driving with servant liable in, 335. 
 Continued tresjjass, 361. 
 
 Two persons engaged in common j)ursuit, 362. 
 Trespass in search of Game, id. 
 Trespass from the Highway, 363. 
 Laying hands on a trespasser, id. 
 Defence to an action for, 364. 
 Lies for riding over land, id. 
 But not where a dog jumps into a field, id. 
 Notice not to trespass, id. 
 
 TRIAL OF A HORSE. 
 Right of, 4. 
 
 By rule of a Repository, 46. 
 Objected to, to conceal a defect, 137. 
 
 TRIPPING, 108. 
 
 TROTTING. 
 
 Against time, 418. 
 
 TROTTING MATCH, 433. 
 
 TROVER. 
 
 Damages in, 201. 
 
 Against a Farrier, 232. 
 
 By Agister, 240. 
 
 By Lender of goods against Borrower, 262. 
 
G46 INDEX. 
 
 u. 
 
 UMBRELLA. 
 
 On Eace-course, a "place" -witliin Betting Acts, loL 
 
 TJMPIEE. See Stakeholders, Stewards. 
 
 UNSOUNDNESS. 
 
 What constitutes it, 70. 
 
 Present state of the Law, id, 
 
 Eule regarding it, 71. 
 
 Imijortant decision, 72. 
 
 How it should be left to a Jury, 74. 
 
 Proof of, 191. 
 
 Notice of nature of, id. 
 
 Matter of fact alone, id. 
 
 Either fact or veterinary opinion, id. 
 
 Both fact and veterinary opinion, id. 
 
 Veterinary opinion alone, 192. 
 
 USAGE. 
 
 Of trade when admissible to explain written contract, 24. 
 
 When not, 194. 
 
 Evidence of usage not to warrant, 130. 
 
 V. 
 
 VALUE, declaration of. See Carrying Horses and Eate. 
 
 VENDOE. See Seller. 
 
 VEEBAL CONTEACT, 3. 
 
 VEEBAL OFFEE to take back Horse, 170. 
 
 VEEMIN. See Htjnting and Trespassing, 357. 
 
 VETEEINAEY SUEGEONS. See Farriers. 
 Eoyal College of, 228, n. 
 No law peculiar to them, 228. 
 Eemedy against, for detaining a Horse, 176. 
 Evidence of, 191, 192. 
 
 VICE. 
 
 What constitutes it, 70. 
 
 Present state of the Law, 70, 71. 
 
 Eule regarding it, 74. 
 
 How it should be left to a Jury, id. 
 
 Proof of, 191, 192. 
 
 Inherent Vice, 265. And see Carrying Horses. 
 
 VICIOUS. 
 
 To clean, 109. 
 To shoe, id. 
 
INDEX. 647 
 
 VICIOUS ANIMALS, 301, 309, 347. And see Ferocious and 
 Vicious Animals. 
 
 VICTOEIA. 
 
 Eeign of, 382. 
 
 Statutes. See Table of Statutes. 
 
 VISIBLE DEFECT, 152. 
 
 W. 
 
 WAGEEING POLICIES, 424. 
 
 WAGEES. 
 
 Wagers at Common Law, 414. 
 
 Wager on the life of Napoleon, 415. 
 
 Wager on the result of an election, id. 
 
 Betting on a race no longer illegal, id. 
 
 Bets not recoverable, id. 
 
 Deposit recoverable before tbe event, id. 
 
 Decision of tlie Court of Common Pleas, 416. 
 
 What is a wagering contract, 417. 
 
 Money advanced with stipulation, id. 
 
 Price of Mare to be increased, if she won, by her winnings, 
 418. 
 
 Billiard Match, id. 
 
 Eotundity of earth, id. 
 
 Trotting against time, id. 
 
 Agreement with Tipster, id. 
 
 Walking Match, 419. 
 
 Contribution to person nominating winner not within pro- 
 viso, id. 
 
 Second Horse may receive part of the Stakes within the 
 proviso, 420. 
 
 Effect of wagers being void on note given in payment, id. 
 
 Wagering contracts by brokers void but not illegal, 421. 
 
 Contracts may be illegal which are not void, id. 
 
 Money paid on void contract, id. 
 
 Decision in Equity, 422. 
 
 Money paid on illegal game not recoverable, id. 
 
 The Act for the Suppression of Betting Houses, id. 
 
 The Stock-Jobbing Act, 423. 
 
 Gaming on Stock Exchange, id. 
 
 Where each Party means to break the contract, id. 
 
 As in a time bargain, id. 
 
 Question to be left to the Jury, id. 
 
 Statute only affects contract which makes the Wager, id. 
 
 Statute against wagering policies, 424. 
 
 What held to be such a policy, id. 
 
 Wager as to a declaration of war, id. 
 
 What was held not to be such a policy, id. 
 
 Paying a bet, 425. 
 
 Giving a security, id. 
 
 Where a note or bill is a gift, id. 
 
 Taking a stolen bank note in payment, 426. 
 
 Taking stopped note in payment, id. 
 
648 INDEX. 
 
 ^YAGERS—{cordinued). 
 
 What invalidates the holder's right, 426. 
 
 Mala fides must be distinctly proved, id. 
 
 Money borrowed to pay bets, 427. 
 
 A betting agent, id. 
 
 May recover disbursements from principal, id. 
 
 Agreement to pay winnings to principal not within Act, id, 
 
 A betting partner, id. 
 
 Cheating Wager, 428. 
 
 WAGGON. 
 
 Trotting along a road, 299. 
 Trotting along a street, id. 
 
 WALL-EYED, 109. 
 
 WAEBLES, 109. 
 
 WAERANT OF ATTOENEY. 
 
 Given for a gambling debt, 447. 
 
 WAEEANT OE DELIVEEY OEDEE. 
 
 Mere acceptance of, bj' purchaser will not bind bargain, 15. 
 
 WAEEANTY. 
 
 Of soundness limited as to time by Conditions of Sale, 45. 
 
 Of ownership by Auctioneer, 48. 
 
 Effect of jirivate warranty of soundness before Sale, 51. 
 
 Warranty required in buying a Horse, 113. 
 
 Warranty of title, id. 
 
 Not implied by law of England, id. 
 
 How it may be inferred, id. 
 
 Eule of Law, 114. 
 
 When the consideration fails, id. 
 
 Mode of trj'ing a disputed title, id. 
 
 Interpleader order not granted unless claims co-extensive, 
 
 115. 
 Eeason for requiring a Warranty, id. 
 Buyer should protect himself by one, 116. 
 What constitutes a Warranty, id. 
 No particular words necessary, id. 
 Eepresentation of vendor at time of Sale, id. 
 Where article is described, id. 
 Words of expectation do not amount to, id. 
 Article named in a sold note, id. 
 Buyer entitled to Article commercially known by the 
 
 name, id. 
 A sound price not tantamount to a Warranty, 117. 
 A general Warranty, id. 
 A qualified Warranty, id. 
 A limited Warranty, 44, 117. 
 
 Complaint of breach must be made within time limited, id. 
 A special Warranty, 118. 
 A wi'itten Warranty, id. 
 A special Agreement, id. 
 Form of Warranty, i<l. 
 
INDEX. 649 
 
 'SVA'RRA.'NTY—iconimued). 
 
 Effect of a written "Warranty, 118. 
 
 Warranty may be gathered from Letters, 119. 
 
 The Parties arc bound by it alone, id. 
 
 Unless fraud is shown, id. 
 
 Eepresentation does not avail, 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, id. 
 
 Warranting a future event, 120. 
 
 Buying for a particular purpose, id. 
 
 Must be reasonably fit for the purpose, id, 
 
 A Horse to carry a Lady, id. 
 
 A carriage Horse, 121. 
 
 No exception as to latent undiscoverable defects, id. 
 
 Quiet in harness, id. 
 
 Unfitness must be clearly proved, 122. 
 
 Must have existed at time of Sale, id. 
 
 "Where there is presumption that Horse answers Warranty, 
 
 id. 
 General rule, id. 
 Warrantor's liability, 123. 
 Sale avoided by fraud, id. 
 But not by immaterial representation, id. 
 Proof of Warranty not contained in the Eeceipt, 189. 
 Proof of, when to be gathered from Letters, id. 
 
 "When formally made in writing, id. 
 Warranty in a Eeceipt not always conclusive, id. 
 Warranty need not have Agreement Stamp, id. 
 Defence to breach of Warranty, 195. 
 Proof of surreptitious Warranty, id. 
 
 Condition annexed to, when it should be specially pleaded, 
 196. 
 
 And see Breach of Warranty. 
 
 WAEEANTY AND SALE BY AN AGENT. 
 
 An agent cannot delegate his authority, 123. 
 
 Nor exceed it, 124. 
 Agency determines by principal's death, id. 
 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, 125. 
 Principal answerable for his fraud, id. 
 Misrepresentation collateral to the contract, id. 
 Damage caused by his negligence, id. 
 
 Servant putting up glandered Horse in stable of another, id. 
 Undisclosed principal, id. 
 
 "Where vendor does not know that there is a principal, id. 
 
 Alteration of account between principal and agent, 126. 
 
 "Where vendor knows name of principal, id. 
 
 "Vendor's election, id. 
 
 Where vendor does not know name of principal, id. 
 
 0. u u 
 
G50 INDEX. 
 
 WAEEANTY AND SALE BY AN AGE'^T—icorMnned). 
 
 Person described as agent may be proved to be principal, 12G. 
 Principal cannot bo proved to be an agent, 127. 
 Their respective riglits of action on a contract, id. 
 Warranty by a servant as special agent, ul. 
 
 When entrusted to sell Horse privatelj', 128. 
 
 When entrusted to sell Horse at a fair, id. 
 Warranty by a servant as generab agent, id. 
 Servant "of Horse-dealer has implied authoritv to warrant, 
 
 id. 
 Illustration of rule, 129. 
 Evidence of custom not to warrant, 130. 
 Warranty by a servant after sale, id. 
 Warranty by a servant forbid to give one, id. 
 Warrant}' by a stranger forbid to give one, 131. 
 Master unwilling to stand by his servant's Warranty, id. 
 Eule as to a servant binding his master, 132. 
 Warranty by a person entrusted to deliver, id. 
 Agent employed to take a Warranty, id. 
 Action against a pretended Agent, id. 
 Proof in Warranty by a servant, 190. 
 
 WAEEANTY DISTINGUISHED FEOM EEPEESENTA- 
 TION. 
 Eepresentation intended as a Warranty, 138. 
 Eecommendation of the seller, id. 
 Affirmation as to value, id. 
 
 Distinction between a Warranty and a Eepresentation, id. 
 Where a Eepresentation amounts to a Warranty, 139. 
 It must form part of the contract, id. 
 And be made pending contract, id. 
 Description of a class of goods, 140. 
 Question to be put to Jury, id. 
 Eule as to Warranty and Eepresentation, id. 
 Mere expression of opinion, 141, 
 Selling according to a pedigree, id. 
 Partly a Warranty and partly a Eepresentation, id. 
 Jury must decide between a Warranty and a Eepresentation, 
 
 l4l. 
 Judgment in BeJin v. Burness, 143. 
 Counterfeit trade marks, 145. 
 
 WAETS, 109. 
 
 WATEE FAECY, 88, 109. 
 
 WAYS. 
 
 Owners of private ways liable for negligence, 31G. 
 Even where injury caused by intervening act of third 
 party, 317. 
 
 WEAK-FOOT, 109. 
 
 WEAVING, 110. 
 
INDEX. 651 
 
 WEIGHTS. 
 
 Under 13 Geo. 2, c. 19 . . 379. 
 For Queen's Plate, 550. 
 
 WHEEZIXG, 110. 
 
 WHIST. 
 
 Lawful, 434. 
 
 WHISTLING, 110. 
 
 WILFUL MISCONDUCT, 282. See CARRYixa Horses. 
 
 WILLIAM THE CONQUEEOR. 
 Eeign of, 369. 
 
 WILLIAM THE THIRD. 
 Reign of, 377. 
 Statutes. See Table of Statutes. 
 
 WILLIAM THE FOURTH. 
 Reign of, 382. 
 Statutes. See Table of Statutes. 
 
 WILREMHAUNCH, 110. 
 
 WIND-GALLS, 110. 
 
 WIND-SUCKING, 111. 
 
 WITNESS. 
 
 Competency, 198. 
 
 Person found in Gaming House may be made a witness, 4G2. 
 
 And freed from all penalties, id, 
 
 WOLF'S-TOOTH, 111. 
 
 AVOUNDING. 
 
 Wounding a Horse, felonj', 62. 
 
 WRESTLING I^IATCH, 383, 399, 433. 
 
 WRITTEN CONTRACT, 3. 
 
 Y. 
 
 YACHTING, 383, 433. And see Regattas. 
 YELLOWS, HI. 
 
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