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See Catalogue at end of this Volume. ] PEINCIPLES THE COMMON LAW, PEINCIPLES OF THE COMMON LAW. INTENDED FOR THE USE OF STUDENTS AND THE PROFESSION. BY JOHN INDERMAUE, III SOLICITOR, AUTHOR OF "MANUAL OF PRACTICE," "EPITOMES OF LEADIHG CASES, "MANUAL OF THE PRINCIPLES OF EQUITY," ETC. ETC. SEVENTH EDITION. LONDON: STEVENS & HAYNES, 3LaiD ^3ublisf)crs, BELL YARD, TEMPLE BAR. 1S95. Printed by Ballantvne, Hanson & Co. At the Ballajitytie Press r*» "> PEEFACE TO SEVENTH EDITION. The number of statutes that have been passed directly affecting the subject-matter of this work, since the last edition was published (November 1 891), is not very great ; but there has been one Act of particular importance, viz., the Sale of Goods Act, 1893, and there has also been the Gaming Act, 1892, to say nothing of various minor statutes. Needless to say during a period of four years there have been many cases of im- portance decided, and from statute law and case law together, I have found a great deal in the work requiring alteration and revision. It has, of course, been necessary to mainly rewrite that part of the book relating to the Sale of Goods, and I trust it will be found to present the sub- ject in a clear and compendious shape. I have throughout revised the work very carefully, and though I have added a good deal of new matter, I have succeeded in keeping it nearly within the same compass as the last edition — I only regret that I have not been able to quite do so. How- ever, as it is, there is only an increase of seven- teen pages ; and after all, five hundred pages vi PREFACE TO THE SEVENTH EDITION. can hardly be considered too much, even for students, on a subject of so wide a range as the "Principles of Common Law." With regard to case law, I think all useful decisions down to the end of last Trinity Sittings will be found to have been dealt with. I desire to express my thanks to my friend and colleague Mr. Charles Thwaites for having kindly perused the proof sheets and made many valuable suggestions. I am also, as usual, in- debted to many of my pupils for useful criticism, made whilst I have been taking them through the work. J. I. 22 Chancery Lane, W.C, October 1895. PKEFACE TO FIKST EDITION. The chief object of the present work is to supply the student with a book upon the subject of Common Law (or, in other words, of the law as usually administered in the Queen's Bench, Com- mon Pleas, and Exchequer Divisions of the High Court of Justice), which, while being elementary and readable on the one hand, yet also goes suffi- ciently into the subject to prepare the student for examination upon it. The present work is indeed written mainly with a view to the Exa- minations of the Incorporated Law Society, for which the Author has had considerable experience in reading with students ; but at the same time he trusts it may be found useful to those who are adopting the other branch of the profession. The Author does not consider that any apology is necessary for presenting this work, it being new in its design as offering to the student a com- paratively short volume combining the plain and popular divisions of "Contracts" and "Torts," and keeping as much as possible from all matters of practice, and from Criminal Law, and also from all matters of an exceptional nature and likely viii PREFACE TO THE FIRST EDITION. neither to be useful in examination nor in prac- tice. In addition to the two main divisions the Author has added another, in which the subjects of "Damages" and "Evidence" are discussed, as no work on the " Common Law " could be complete without. Besides his chief object, the Author has also had another in view, viz., to produce a book which may — if not alwaysinitself,yet,at any rate, by aid of the extensive references to either text- books or cases — form a work useful to the practi- tioner. In many cases it may — from its very size — be useful for this purpose only as an index ; and remembering this, the Author has considered that in many places references to larger text- books would be preferable to cases, and has acted accordingly ; and here he would acknowledge the obligations he is under to the learned authors and editors of the various works he has in the following pages referred to. With these few words the Author sends his work forth to speak for itself and be judged on its merits, assuring his readers that no pains have been spared on his part to ensure accuracy, and trusting that his labours may meet with appro- bation. J. I. 2 2 Chancery Lane, "VV.C, August 1876. TABLE OF CONTENTS. PAOH Table of Cases cited ..... xi Index to Statutes cited ..... xxxi Editions of Text-Books referred to . . xxxvi Introduction PAKT I. OF CONTRACTS. CHAP. I. Of the different kinds of Contracts : their Breach and the Eules for their Con- struction ...... 7 11. Of Simple Contracts, and particularly of Cases in which Writing is required for their Validity . . . . -31 III. Of Contracts as to Land, and herein of Landlord and Tenant .... 60 IV. Op Contracts as to Goods, and herein op Bailments, including Carriers and Inn- keepers . . . . . . -91 V. Op Mercantile Contracts, and herein op Bills of Exchange, Promissory Notes, and Cheques . . . . . -143 VI. Op some particular Contracts, irrespective OP ANY Disability of the Contracting Parties . . . . . . .198 VII. Of Contracts with Persons under some Dis- ability 231 X TABLE OF CONTENTS. CHA.P. P^OE VIII. Of the Liability ox Contracts, their per- formance, AND excuses for THEIR NON- PERFORMANCE . . . • • -256 IX. Of Fraud and Illegality .... 283 PART II. OF TORTS. I. Of Torts generally 3^9 II. Of Torts affecting Land . . . -3-° III. Of Torts affecting Goods and other Per- sonal Property, and herein of the Title to the same ....•■ 33^ IV. Op Torts affecting the Person . . • 35^ V. Of Torts affecting the Person (continued) 3S0 VI. Of Torts arising peculiarly from Negli- gence ....... 407 PART III. OF CERTAIN MISCELLANEOUS ISIATTERS NOT BEFORE TREATED OF. I. Of Damages 439 II. Of Evidence in Civil Cases . . . 464 GENERAL INDEX 501 TABLE OF CASES CITED. PAGE ABBOT V. Macfie .... 437 Abbott V. Wolsey . . . . 102 Abrahams v. Deakin . . . 409 Abrath v. North-Eastem Rv. Co 377 Aceball v. Levy .... 97 A'Court V. Cross . . 57, 273 Ackerman v. Ehrensperger 191 Ackroyd v. Smithies . . 263 Acraman v. Morris ... 96 Acton V. Blundell . . 5, 311 Adams v. Lindsell ... 36 v. Newbigging . . 155 Addington, Ux p«»'^e, /'i re Ives 374 Addison v. Gandesequi . . 146 Akerblom v. Price . . . 201 Alabaster v. Harness . . 297 Alderson v. Waistell . . 359 Aldous V. Cornwell . . . 183 Aldridge v. Fern .... 70 Alexander v. Jenkins . . 397 Allbutt V. Medical Council 385 Allinson v. Frisby . 270, 276 AUport V. Nutt .... 302 Allsop V. Wheatcroft . . 294 Allum V. Dickinson ... 70 Ames V. Hill 308 V. Hughes .... 494 Anderson v. Gorrie . 31 8, 389 V. Oppenheimer . 343 Anderson, Ex parte, lie ToUemache 12 Anderson's Trade - mark, Re 213 Angus V. Clifford .... 283 Angus V. M'Lachlan . . . 141 Appleby f. Franklin . . . 313 Arbuthnot t;. Bunsilal . . 11 Archer v. Marsh .... Arden v. Goodacre . . . Armory v. Delamirie 337 Armstrong, In re, Ex parte Gilchrist r. Lancashire, &c., Ry. Co. ... V. Milburn . V. South Lon don Tramways Co. V. Stokes Armsworth v. South-East ern Ry. Co Arnott V. Hayes . . . Ashby V. White 443 Ashenden v. L. B Ry Ashling V. Boon . . . Ashton V. Blackshaw . Asquith v. Asquith . . Attorney-General v. Day Light and Coke Co V. Moore Attwood V. Sellar Aubrey v. Cru.^ Avery v. Bowden Aylesford, Earl of v. Earl Poulett Aylesford Peerage Case 4> 310 &S. C B BADDELEY v. Granville Bailey v. Sweeting . . V. Walford . Bain v. Fothergill . . Baines v. Geary . . . PAGE 295 462 . 339 245 437 273 226 1 48 459 468 311. 132 192 115 220 60 331 340 200 171 257 471 425 47 284 454 294 Xll TABLE OF CASES CITED. 387 346 15S 297 PAGE Baines v. Toj'e 235 Baker v, Carrick .... Baldwin v. Casella . . . Ball, Ex parte, In Re Shep- herd V. Dunsterville . 57, V. Warwick .... Ballard v. Tomlinson 5, 327, 343 Bamford r. Turnley . . . 330 Banbury Peerage Case . . 496 Bank of England v. Vagliano 186 Banner v. Berridge . . 58, 274 Barber, In re, Ex •parte Stan- ford V. Houston . r. Lessiter Barclay, Ex parte . . Baring v. Corrie . . 15 Barker v. Furlong . . Barlow v. Teale . . . Barnaby v. Bailee . . Barnstaple Second Annul tant Society, In Re . Barraclough v. Greenhough 485 Barrow v. Isaacs . Barton shill Coal Eeid . . . . Co. Barwick v. English and Joint Stock Bank 2S6 Basebe r. Matthews . . . 376 Batchelor v. Bigger ... 70 V. Yates ... 74 Bateman v. Kingston 236, 237 V. Finder . . . 274 Battishill v. Eeed . . . 460 Batty V. Harriot .... 303 Baxendale v. Bennet . . 194 Baxter v. De Valmer . . 483 V. Earl of Ports- mouth 253 Bay ley, Ex farte .... 46 V. Rimmell . . . 227 Beaumont v. Reeve . . 43, 296 Beck V. Pierce 243 Beckett v. Tower Assets Co 116 Beddal v. Maitland . . Si, 325 Bedingfleld v. Onslow . . 455 Beech r. Jones . . . . 171 Beetson v. Beetson . . . 299 V. Collyer .... 227 118 273 376 74 154 34S 65 471 40 89 421 PAGE Behn V. Burness .... no Bell V. Banks 52 r. Midland Ey. Co, . 450 V. Stocker .... 243 Bellairs v. Tucker . , . 286 Bellamy v. Debenham . . 33 Belshaw v. Bush .... 265 Bentley v. Vilmont . . . 338 Bentson r. Taylor . . . no Berkeley Peerage Case . . 470 Bernina, The 437 Betts V. Gibbon . . . . 319 Bevan v. Carr 55 Bew, In re. Ex parte Bull . 86 Bewley v. Atkinson . 472, 474 Bianchi v. Offord . . . 118 Bickerdike v. Bollman 179, 181 Bidder v. Bridges . . . 475 Biffen v. Bignell .... 250 Binns, In re, Ex parte Hall 76 Birch V. Liverpool ... 55 Bird V. Davey 117 V. Lord Greville . . 90 V. Jones 359 Birkeley v. Presgrave . . 200 Birkmyr v. Darnell ... 50 Bissell V. Fox 197 Black V. Hunt 397 Blackburn v. Haslam . . 208 V. Mason . . 304 V. Vigors . . 208 Blackmore v. Bristol and Exeter Ey. Co. . . . Blades v. Free ... 14; Blake's Case Blankenstein v. Robertson Blenkinsop -;•. Clayton , . Bloodworth v. Gray . , . Bloomer r. Bernstein . . Boaler r. Mayor .... Boldero r. London & West- minster Discount Co. Bolton V. Lambert . . . V. Corporation of Liverpool Bonham, Ex parte, Re Tol- lemache Booth V. Arnold .... Borries v. Imperial Otto- man Bank Borthwick v. Evening Post 343 252 269 117 100 396 258 52 289 146 491 12 397 154 212 TABLE OF CASES CITED, Xlll Bortick v. Head, Wright- son & Co 425 Bosville r. Attorney-Gen. . 496 Botterill v. Whitehead 381, 393 Boughton, Re, Boughton v. Boughton . . Boulton V. Prentice Bound V. Lawrence Bourke v. Warren Bourne v. Wall Bowen v. Anderson V. Hall . . Bower v. Peate Bowies', Lewis Case 219 249 422 382 118 427 , . 406 328, 427 • • 334 66, Boydell v. Drummond 33, 34, 48 Bracegirdle v. Heald . . 55 Bradburn v. Great Western Ry- Co 459 Bradford v. Roulston . . 41 Bradford Corporation v. Pickles 5, 327 Bradlaugh v. Newdegate . 297 Brass v. Maitland . . . . 413 Brewer w. Jones .... 221 Bridger v. Savage . . . 299 Bridges v. Hawksworth . 339 Brind v. Dale 129 Briscoe t'. Briscoe . . . 218 Bristol, &c., Bread Co., Ltd. V. Maggs 33 Britain v. Eossiter ... 55 British American Tele- graph Co. V. Colson . . 37 British Columbia Saw Mills V. Nettleship .... 44S British Mutual Banking Co. V. Charnwood Forest Ry. Co 286 British South Africa Co. V. Companhia di Mogam- bique 321, British Waggon Co. v. Lea Broad v. Pitt . . . Broadwood v. Granara Brodribb v. Brodribb Bromage v. Prosser . Brooke v. Brooke . . V. Ramsden . Brooks V. Hassell . . Broughton v. Jackson Brown v. Ackrojd . 360 257 493 141 371 378 475 424 145 363 251 Brown, Re, Brown v. Brown Re, Dixon v. Brown Ex parte. In re Smith Ex parte. In re Suffield & Watts . V. Butterfly Co. V, Hawkes V. Mallett . . V. Tibbits . . Browne v. Croome Buckle V. Money . . Budd V. Marshall . . Bull, Ex pai-tc, In re Bew Bunker v. Midland Ry Co Burchell v. Hickisson Burdett, In re, Ex parte Byrne Burges v. Wickham . Burgess, Ex parte, Re Hood Burlinson v. Hall . , Burnard v. Haggis . Bursill V. Tanner . , Burton v. Henson Bury V. Thompson Butcher v. Nash . . Butler V. Hunter . . 41 M. S. & L. Ry. Co. PAGE 176 282 10 218 422 379 429 217 383 450 70 86 423 415 118 205 116 165 239 492 363 66 64 i, 412 409 470 19 485 118 37 V. Mountgarret . Butterworth, In re. Ex parte Russell . . . Buxton V. Garfit . . . Byrne, Ex parte. In re Burdett V. Van Tienhoven Bywell Castle, The . . C CAD AVAL V. Collins . . 281 Cahill V. Fitzgibbon . . . 12 Caird v. Sime 212 Calvert v. Thomas ... 118 Calye's Case . . . 139, 141 Canning v. Farquhar . . 208 Capital and Counties Bank r. Henty 383 Carlill V. Carbolic Smoke Ball Co 38 XIV TABLE OF CASES CITED. Carlton v. Bowcock . . . Carnac, Be, Ex parte Simmons Carol V. Bird .... Carpenter v. Deen . . Carslake r. Mapledoram Carter, Re, Carter v. Carter V. Drysdale . . Cartwriglit v. Green . Castelain v. Preston . Catling V. King . . Caton V. Caton . . Catt V. Tourle . . . 476, Catton V. Bennett . . Cave V. Hastings . . . Chalmers v. Shackell . Chamberlain v. Boyd . V. Williamson V. Young. . Chamberlyn v. Delarive Chambers v. Miller . . Chandelor v. Lopus . . Chanter v. Leese . . . Chapleo v. Brunswick Bdg, Society Chapman v. Great West ern Ry. Co Chappie, In re, Ex parU Ford Charleston v. London Tramways Co. . . Charlton v. Charlton Chartered Merc. Bank of India v. Netherlands India Steam Navigation Co 282 386 119 396 272 426 490 206 64 57 493 442 56 390 449 6 169 100 195 III 46 145 136 409 218 325: Life Chasemore v. Richards Chauntlet v. Robinson Chester v. Powell Chibnall v. Paul . . Child r. Hearn . . Churchill, In re . . City Bank v. Sovereign Assurance Co. Clarke v. Birley . . V. Chambers . V. Cuckfield Union V. Millwall Dock Co Clayards v. Dethick . . . Clayton's Case Clayton v. Blackey . . . 201 327 427 90 330 437 51 209 52 413 223 78 436 262 65 PAGE Cleary v. Booth .... 363 Cleave v. Jones .... 493 Cleaver v. Mutual Reserve Fund 207 Clench v. D'Arenberg . . 142 Clutterbuck v. Chaffers . 383 Clutton v. Attenborough . 187 Coates V, Coates .... 272 Coatsworth v. Johnson . 75 Cobb V. Great Western Ry. Co 417 Cochrane t». Entwistle . . 118 V. Moore . . . 120 V. Rymill . . . 348 Cockburn v. Edwards . . 220 Cockle i: South-Eastern Ry. Co 420 Cockroft V. Smith . . . 361 Coggs V. Bernard 122, 123, 125, 128, 142, 150 Cohen v. Kittel .... 299 Colchester, Mayor of v. Brook 333, 435 Cole V. Eley 218 Coleman v. Godwin . . . Collingridge v. Emmott . 212 Collins V. Blantern 16, 291 V. Renison . . . CoUis V. Selden .... Colonial Bank v. Cady . . Comitd des Assureurs Maritimes v. Standard Bank of South Africa Concha v. Concha . . Connar v. Justice . . Conner v. Fitzgerald Consolidated Co. v. Curtis Consolidated Cr. and Mort gage Co. V. Gosney . Conway v. Belfast Rv Co Cook V. Eshelby . Cooke V. Lamotte Coombs V. Dibble Cooper V. Crabtree V. Davis Coote V. Judd . . Corbishley's Trusts, In Corn V. Mathews . Cornfoot v. Fowke 395 211, 292 362 413 185 350 12 396 471 348 iiS 422 154 496 303 455 120 212 475 238 284 TABLE OF CASES CITED. XV Corrigan v. Great North- ern and Manchester, S, and L. Rys 132 Cory V. Thames Ironworks Co 448 Cotton, Ex parte .... 119 Coulson, £x parte, Re Gardiner 245 Coulthart v. Clementson . 52 Coutourier r. Hastie . . 151 Coutts V. Irish Exhibition 225 Cowburn, Re, Ex parte Firth 120 Cowley V. Newmarket Local Board 414 Cox V. Burbridge .... 429 V. Glue 322 V. Great Western Railway Co 423 V. Hickman .... 155 Coxhead v. Mullis . . . 233 Crabtree v. Robinson . . 80 Craddock v. Rogers . . . 220 Craigs, The 201 Crane v. London Dock Co. 337 Crawcour v. Salter . . . 492 Crepps V. Burden . . . 307 Cripps V. Judge .... 422 Croix V. Morris .... 2S4 Crosby v. Leng . . . . 313 V. Wadsworth . . 61 Crowhurst v. Amersham Burial Board .... 343 Crowther r. Elgood . . . 371 V. Thorley . . . 224 Cuff e V. Murtagh .... 1 59 Cukson V. Stones .... 228 CuUey V. Charman . . . 249 Cumber v. Wane . . 262, 263 Cundy v. Lindsay . . . 338 Cunningham & Co., In re, Simpson's Claim . . . 224 Curlewis v. Clarke . . . 269 Cuthbertson r. Parsons . 411 Cutter V. Powell .... 259 Dalton V. Angus V. South Ry. Co. . . . . 328, 427 • Eastern 460 220 142 parte D DAGLISH, Ex parte . . 74 Dalby v. India, &c., Assur- ance Co 206 Dangar's Trusts, Re, . Dansey v. Richardson Darley Main Colliery Co V. Mitchell .... Darley v. Tennant . Darrell v. Tibbitts . Davey v, London and South-Western Railway Co Davidson v. Carlton Bank Davies v. Davies . 1'. Makuna V. Mann , V. Rees . . V. White . r. Williams Davis, In re, Ex Pollen's Trustees . . V. Burton . . . V. Goodman . . Dawes, Ex parte. In re Moon 25 Dawkins v. Lord Poulett 318, 389 V. Lord Rokeby 318, 3S9 Day V. Bream 384 V. BuUer 396 V. M'Lea 263 Dean v, James 267 V. White 500 251 247 144 168 239 348 299 328 85 206 437 119 294 295 435 118 468 403 77 117 117 Deare v. Soutten .... Debeuham v. Mellon . . De Bussche v. Alt . . . Decroix v. Meyer .... De Francesco v. Baruum . Delaney v. Wallis . . . De Mattos v. Benjamin . . Denaby Main Colliery Co. V. Manchester, Sheffield, and Lincoln Ry. Co. . . Deusham's Trade-mark, Re Derry v. Peek . . . 283, Devaynes v. Noble . . . Diamond Fuel Co., In re, Metcalf's Case .... Dickinson v. Dodds . . . Dickson v. Great Northern Rv. Co 137 213 285 262 371 37 XVI TABLE OF CASES CITED, Dickinso Ry. Co. . . . Diggle V. Higgs . Ditcham v. War rail Dixon V. Bell . . V. Brown . V. Clark V. Yates . Dodd r. Holme . PAGE V. North-Eastern . . 418 301, 303 • ^33 • 413 . 282 . 268 96, 104 . 428 • 469 46S, Doe d. Banning v. Griffin . d. Didsbury v. Thomas 469 d. Gallop V. Vowles . 472 d. Mudd V. Sucker- more 482 d. Rigge V. Bell . . 65 V. Turford . . 473, 474 Donnellan v. Read ... 54 Donnison v. People's Cafe Co 56 Donovans. Laing, Wharton & Down's Construction Syndicate . . . 411, 412 Doodson V. Turner, Re Knowles 373 Doolan v. Midland Ry. Co. 133 Doughty r. Firbank . . . 423 Douglas V. Patrick . 266, 267 Dovaston v. Payne . . . 324 Drew V. Nunn . . 147, 252 Driver v. Broad .... 62 Drover v. Beyer . . . . 376 Dudgeon v. Pembroke . . 205 Duke V. Littleboy . . . 296 Duncan Fox & Co. v. North and South Wales Bank . 5 1 Duulop V. Higgins ... 36 Dyer v. Munday .... 410 E EADIE V. Anderson . . 488 Eager v. Grimwood . . . 405 Eaglesfield v. Marquis of Londonderry .... 287 Earl of Aylesford v. Earl Poulett 373 East India Co. v. Hensley . 145 Eastland v. Burchell 248, 250 Easton Estate Co. v. West- ern Waggon Co. ... 78 Eastwood V. Kenyon . . 50 Ebbetts V. Conquest . . . 455 Edge V. Strafford .... 63 Edgington v. Fitzmaurice 284, 2S6 Edridge v. Hawkes . . 81, 325 81, 325 219 V. Hawker Edwards, Ex parte Aberayron Mu tual Insurance Co, V. Carter V. Harben V. Marcus V. Midland Co. V. Yates Ed wick V. Hawker Elbinger v. Kaye . Ellis V. Sheffield Gas Con sumers Co. . Elphick V. Barnes Elsee V. Gatward Elwes V. Mawe . Emblem v. Myers Emmens v. Pottle Emmett v. Norton Empress Engineerin In re . . Engel V. Fitch . . England, Bank of v. liano . . . Esdaile v. Visser Etherington v. Parrott Evans v. Bremridge V. Collins . — ■ V. Drummond V. Judkins I'. Roberts Co, Vag 35 237 288, 289 120 Ry, 379 268 325 148 414 96 123 72 450 384 249 224 454 1 86 372 247 52 284 160 267 61, 116 • 79 Ewer v. Lady Clifton F FABRIGAS V. Mostyn . . 450 Fairman v. Oakford . . . 226 Falk, Ex parte, In re Keill 107, 108 Fanny, The 199 Farrant v. Barnes . 134, 413 TABLE OF CASES CI'l'ED. XVll lie Cow Scho Co. 262 Farrow v. Wilson . Favenc v. Bennett Fawcet v. Cash Fearnside v. Flint Fell V. Knight . . Fenn v. Bittlestone Fenton v. Blyth . Ferns v. Carr . . Fewings, Ex parte, Sneyd . , . Finlay v. Chirney Firth, Ex 'parte, Rt burn .... Re, Ex parte field .... V. Bowling Iron Fisher v. Leslie V. Eonald V. Taylor Fitch V. Jones . V. Sutton . FitzJolm V. Mackinder . Flannery v. Waterford an Limerick Ry. Co. Fleet V. Murton . V. Perrins Florence, The . . Flower v. Saddler Flureau- v. Thornhill Foakes v. Beer . . Forbes v. Jackson Ford, Ex parte. Chappie . . . Fores v. Wilson . Forse v. Skinner . Forster v. Mackreth Fountain v. Boodle Fowle V. Freeman Fox V. Bishop of Chester Foy V. London, Brightoiij and South Coast Ry. Co Frangaise des Asphaltes v. Farrell Francis v. Bruce . . . V. Cockrell . . V, Roose . . Franklin v. South-Eastern Ry. Co. ... Frasef v. Byas . . Freeman v. Pope . V. Rosher 26 //( FAOE 230 262 227 270 354 121 46 II 6 490 343 308 488 158 305 , 264 378 416 147 499 201 298 454 264 51 21 403 359 158 386 32 306 420 451 188 412 396 459 126 289 34S PAOE Fri.sby, Re, Allin.son v. Frisby 270, 276 Frost V, Knight . . .22, 257 Furber v. Cobb .... 118 GABRIEL V. Dresser . . 269 Galliard v. Laxton . . . 366 Gandy v. Gandy .... 32 Gardiner, Re, Ex 'parte Coulson 245 Gas Light and Coke Co. v. Vestry of St. My. Abbotts 331 Gebruder Naf v. Ploton . 349 Gent, Re, Gent- Davis v. Harris 373 George v. Clagett . . 154 Re, Francis v. Bruce 188 Gerhard v. Bates 38, 315, 317 Gibbs V. Guild 273 V. Great Western 423 496 239 245 55 414 263 219 206 389 & W, Ry. Co. . . . Gibson v, Jeyes . Gilbert v. Fletcher Gilchrist, Ex parte, In re Armstrong . . . Giraud v. Richmond Gladwell v. Steggall . Goddard v. O'Brien . Godfrey v. Dalton . Godsall V. Boldero . Gofiin V. Donelly . Gogarty v. Great S. Ry. Co Golding, Ex parte Good V. Cheesman , Goodman v. Harvey , Goodwin v. Parton , V. Robarts . Gordon v. Marwood , V. Silber . . Gosman, In re . . . Goss V. Lord Nugent Gould, In re, Ex Official Receiver Ex parte. Re Walker Govier v. Hancock Gowan v. Wright Grainger v. Hill . Grand Junction Canal Co, X. Shugar parte 131 108 264 1S4, 185 276 1S3 200 141 452 28 13 71 249 10 365 327 XVlll TABLE OF CASES CITED. Grant v. Ellis 85 Grant v. Thompson . . . 296 Graves v. Masters . . . 145 Gray v. Stait . . . . 81, 82 Great Western Rj. Co. v. Bunch . . . 135, 136, 137 Grebert-Borgnis v. Nugent 457 Green v. Button .... 45 1 V. Humphreys . 58, 273 V. Kopke . . . . 148 ;- V. Marsh . . . . 116 V. Sevin .... 29 V. Wynn .... 52 Greening v. Reeder . . . 207 Gregory v. Hurrill . . . 272 Griffiths V. Earl of Dudley 426 V. Teetgen . 403, 404 Grissell, In re 245 Guild V. Conrad . . . . 151 Gunn r. Bolckow 104, 199, 265 V. Roberts .... 199 Gurney v. Behrend . . . 203 Guy V. Churchill . . . . 218 Guy Mannering, The . . 204 Gwilliam v. Twist . 144, 410 Gwynne r. Gwynne . . . 275 H HADLEY V. Baxendale 447, 44S Haigh V. Royal Mail Steam Packet Co 420 Hall, Ex parte, In re Binns 76 V. Pickard .... 353 Hallett V. Hastings . . . 270 Hallett's Estate, In re . . 262 Hamborough v. Mutual Life Insurance Co. of New York 20S Hamilton v. Pandorf . . 203 V. Magill . . . 457 — V. Vaughan Sherrin Electric Co 238 Hamlin v. Great Northern Ry. Co 433 Hamlyn v. Talisker Dis- tillery 26 Hammack v. White . . . 352 Hammersmith and City Ry. Co. V. Brand . . . 431 Hampden v. Walsh . . . 301 PAGE Hannafoad v. Hunn . . . 318 Hanrahan v. Limerick Steamship Co 425 Hardwick, In re, Ex parte Hubbard 115 Hargrave v. Hargrave . . 471 Hargreave v. Spink . . . 337 Harman v. Johnson . . . 158 Harper v. Luffkins . . . 404 Harris, Ex ptartc ... 79 V. Briscoe .... 297 V. Carter .... 45 r. Great We.-tern Ry- Co 39, 1 36 V. Shipway Harris's Case . . . Harrison v. Bush . . V. Eraser . — V. London and North-Western Ry. Co. V. Stratton Hart V. Baxendale . . V. Prater .... r. Swaine . . . Hartley v. Ponsonby Harvey v. Brydges V. Gibbons V. Harvey . V. Croydon Union Sanitary Authority . Haslam v. Cron . . . V. Sherwood . . Hasleham v. Young . . Hastings' Estate, In Hallet V. Hastings Hastings v. Pearson . . Hawes v. Draegar . . Hawken v. Shearer . . Hawker v. Hallewell Hawkesworth v. Chaffey Hawks V. Cottrell . . Haydon v. Brown . . Heald v. Ken worthy Heaven v. Pender . . Heawood v. Bone . . . Hebdish v. M'llwaine . Hebdon v. West . . . Hedley v. Pinkuey & Sons Steamship Co. . . . Helby v. Matthews . . Henderson v. Stevenson 79 36 385 390 459 394 131 235 285 45 325> 362 45 80 499 470 45 158 270 152 496 325 305 32 219 115 147 316 79 385 207 422 154 39 TABLE; OF CASES CITED. XIX Heneage, In re . . Henthorn v. Fraser . Herman y. Zeuchner Heseltine v. Simmons Heske v. Samuelson . Hetherington v. Groome He J wood V. Dodson . Hickman v. Upsall . Hicks r. Faulkner 378, 379 Higham r. Ridgway . Hill V. Foley . , . — - r. L. & N. W. Ry. Hilton V. Eckersley . Hindebaugh v. Blakey Hinton v. Sparkes Hitchcock V. Cohen . V. Edwards Hoadley v. McLaine . Hoare v. Niblett . . V. Rennie . . • 245 36, 37 291, 292 . 121 . 422 118 485 475 377, 471 192 133 • 295 . 169 440, 454 • 295 • 194 40, 97 • 159 . 258 . 462 22, 257 Co Hobson V. Thellusson Hochster v. De la Tour Hockaday, In re, Ex parte Nelson 120 Hodgkinson r. Fletcher . 249 Hodkinson v. L. & N.-W Ry. Co. .... 135, 136 Hodson's Settlement, Re, Williams r. Knight . . 237 Hodson V. Walker . . . 321 Hogg V. Ward . . V. Kirkby . Hoghton i: Hoghton Holder v. Soulby . , Hole V. Barrow • • • • 331 Holland, Ex parte, In re Heneage 245 Holleran v. Bagnall . . , 419 Holloway, In re Young v. HoUoway ...... 493 Holmer v. Taunton . . . 382 Holmes v. Brierly . . . 233 Honck V. Muller .... 258 Hood, Re, Ex parte Burgess 116 Hooper, In re . . . . . 251 Hopkins v. Logan ... 43 V. Grazebrooke . . 454 Hopkinson v. Smith . . . 217 Houldsworth v. City of Glasgow Bank .... 290 . 212 496, 498 . 142 Household Fire, &c., Co., Limited v. Grant . , Howard v. Beal . . . V. Refuge Friendly Society Howe V. Finch .... V. Smith .... Howson V. Hancock . , Hoyle, Re, Hoyle v. Hoyle Hubbard, Ex parte, In re Hardwick .... Hudston V. Mid. Ry. Co. Huggall V. M'Lean . . Hughes V. Coles . . . V. Percival . . Hugill V. Masker . . HuUe V. Heightman . Hulme V. Tenant . . Hulton V. Brown . . Hume V. Druyff . . V. Peploe . . Hunt V. Great Northern Ry, Co Hunter v. Nockolds . . V. Johnston . . Hussey v. Horne-Payne Hutchinson v. Tatham . V. York, ic, Ry. Co Hutton V. Ballock . . Hydraulic Engineering Co V. M'HaiEe .... Hyman v. Nye .... 36 467 206 422 100 302 49 115 135 69 270 412 153 259 243 30 375 191 385 85 359 32, 33 147 421 148 457 417 I'ANSON V. Stuart . 381, 382, 394 Imperial Loan Co. v. Stone 253 Inca, The 20i Indermaur v. Dahies . . 415 Ingle V. M'Cutchan . . . 217 Ingram v. Little .... 34 Inman v. Stamp .... 62 Irvine v. Watson .... 147 Ives, In re. Ex parte Addington 374 JACOBS, Ex parte . . . V. Crddit Lronnais . 53 26 XX TABLE OF CASES CITED. PAGE I Jacoby v. Whitmore . . . 294 | Jakeman v. Cook .... 45 James, Ex parte, Re Mutual and Permanent Benefit Building Society . . . 144 V. Campbell . . . 358 r. Soulby .... 213 James' Trade-mark, In re . 213 Jameson v. Midland Ry. Co 134 Jarrett v. Hunter .... 64 Jay V. Johnstone .... 270 Jeffries v. Great Western Ry. Co 337 Jenkins v. Morris .... 253 Jennings r. Hammond 224, 303 Jennings v. Randall , . . 239 Jesser r. Gifford . . 322, 455 Jesus College v. Gibbs . . 467 Jetley v. Hill 247 John V. Bacon 412 Johnson, Re, Ex parte Edwards 219 Re, Sly V. Blake . 270 I. Credit Lyonnais 153 V. Colquhoun . . 263 ■ V. Lindsay . . . 422 V. Raylton ... 29 Juhuston V. Sumner . 248, 249 Johnstone v. Milling 22, 257, 258 Joliffe V. Baker .... 285 Jolly V. Rees . . . 247, 248 Jones, Ex parte. In re Grissell 245 Jones V. Bird 428 V. Brown 403 V. Gooday .... 460 V. Gordon .... 185 V. Liverpool Corpora- tion 410 V, Marshall .... 126 V. Merionethshire Building Society . . . 298 V. Simes 323 V. Thomas .... 386 V. Wylie 359 Jordan v. Norton .... 32 Joyce I'. Swann .... 97 Japp V. Powell ... 58, 273 K PAGE 148 292 KALTENBACH v. Lewis Kearley v. Thompson . Kearney i: London, Brigh- ton and South Coast Ry, Co 407 Keen r. Henny . . . . 411 Kellard v. Rooke .... 423 Kelly V. O'Malley . . . . 38S V. Partington . 446, 449 Kelner v. Baxter .... 224 Kemble v. Farren . . . 441 Kemp V. Burt 219 V. Talk . . 107, ic8 Kendal v. Hamilton . . . 159 Kennedy, Ex parte . . . 116 v. Brown . . . 216 V. Panama Mail Co 290 V. Thomas . . . 180 Kibble, Ex 2^arte, Re On- slow 12, 233 V. Gough .... 102 Kiell, In re, Ex parte Falk 107 Killeena, The 201 Kimber v. Press Association 387 King V. London Improved Cab Co 411 V. Stewart .... 281 Kingston's, Duchess of, Case 12 Kirk V. Blurton .... 158 V. Todd 323 Kitcat t). Short . . . . 493 Knight V. Crockford . . 56 v. Gibbs .... 451 V. Gravesend, &c. . 21 Knowles, Re, Doodson v. Turner 373 Knowlman v. Bluett . . 55 Knox V. Bushell .... 251 LAING V. Meader ... 267 Laird v. Pym 454 Lambert, In re .... 470 Lampleigh v. Braithwaite 18, 41 Lancaster v, AUsup . . . 162 Langridge r. Levy . 311,315, 31D. 317 TABLE OF CASES CITED. XXI Co and 28, Larios v. Guretj . . Latimer v. Official operative Society Latter v. Braddell Laugher v. Pointer Lavery v. Purssell Lawder v. Peyton Lawler r. Linden . Lawrence v. Fletcher Lawrie v, London South-Western Ky. Co. Lea V. Whittaker . . Leather Cloth Co. v. Lor sont . . . Le Blanche v. London and North-Western Ey. Co, Leduc V. Ward . . . Lee V. Butler .... V. Everest . . . V. Hammerton . . V. Riley .... Leeds Bank v. Walker . Leggott V. Barrett . . Lemmon v. Webb . . Lempri6re v. Lange . . Leonard v. Wells, Re Leo nard's Trade-mark Leroux v. Brown . Lewis V. Alleyne . V. Graham . V. Jones . . Leyman v. Latimer Licensed Victuallers News paper v. Bingham . , Lickbarrow v. Mason 105 Lightbound v. M'Myn Lilley r. Ranken . . Limpus V. London General Omnibus Co. . . . Lindsell v. Phillips . . Lines v. Rees .... Liver Alkali Co. r. John son Llewellin, Re ... . Lock r. Pearce .... London Assurance Co. v Mansel London and County Bank ing Co. V. Groome London Joint Stock Bank V. Simmons . 444 427 359 410 62 262 227 219 433 441 294 433 202 153 221 493 429 182 29 333 236 213 26 236 85 286 394 212 108 51 305 410 270 260 129 218 20S 194 185 PAGE London Wharfing and Warehousing Co., Re . 453 Long V. Clarke .... 80 V. Keightley . . . 403 V. Millar 35 Lonsdale, Earl of v. Nel- son 333, 334 Lovell V. Howell .... 422 Low V. Collum 377 Lowe, Ex parte. Re Stan- dard Manufacturing Co. 1 16 Lumley v. Gye . . . 405, 451 Lynch v. Knight .... 45 1 V. Nurdin . . 413. 434 Lytton, Earl of v. Devey . 213 M MACDONALD v. Whit- field 173 Macdonnell v. Marsden . 463 Macdougal v. Knight . . 38S Mackay r. Merritt . . . 118 Maclean v. Currie ... 90 r. Dunn . . . 146 Macnamara's Estate, In re 262 Macrae v. Clarke .... 462 Macrow v. Great Western Ry- Co 135 M'Cartan v. North-Eastern Ry- Co 433 M'Giffin V. Palmer's Ship- building Co 422 M'Gregor v. Gregory . . 381 • V. M'Gregory . 55, 298 M'Kenire v. Eraser . . . 476 M'Kinnell v. Robinson . . 296 M'Lay v. Perry .... 112 M'Lean v. Clydesdale Banking Co 193 M'Mahon v. Field ... 451 M'Manus v. Crickett . . 409 V, Lancashire Ry. Co 132 M 'Mullen v. Helberg . . 56 M'Myn, In re 51 M'Nally v. Lane, and Yorks. Ry 132 M'Pherson v. Daniels 393, 399 Maggi, III re, Winehouse v. Winehouse i^ XXil TABLE OF CASES CITED. PAGE Mainwaring r. Leslie . . 248 Malcolm Flinn & Co. v. Hojle 148 Mallam v. May .... 294 Mallet r. Bateman ... 53 Maltby v. Murrell ... 177 Manby v. Scott . . 246, 250 Manchester Bonded Ware- house Co. V. Carr . . 90, 428 Manchester, Mayor of v. Lyons 475 Manchester, Mayor of v. Williams 381 Manchester, &c., Ry. Co. V. Brown 132 Manchester, &c., Ry. Co. r. North Central Waggon Co 116 Manchester, &c., Ry. Co. V. Wallis 429 Manchester and Oldham Bank v. Cook .... 460 Mangan v. Atterton . . . 437 Manisty v. Churchill . . 51 Manley v. Field .... 404 V. St. Helen's Canal 430 Manzoni v. Douglas . 352, 408 Marewood v. South York- shire Ry. Co 289 Margrett, Ex parte. Re Soltykoff 236 Market Overt, The Case of, 337 Markwick v. Hardingham . 143 Marriott v. Hampton . . 281 Marris v. Ingram . . 371, 373 Marsden v. Meadows . . 115 Marshall r. Green . . 61,62 V. York, &c., Ry. Co 414 Martin v. Gale 236 V. Hewson . . . 301 V. Palmer .... 79 — ■ V. Shoppee ■ . • . . 358 Martindale v. Booth . . . 289 Marvin v. Wallace . . . 104 Marzetti v. Williams . 192, 444 Massey v. Allen .... 473 Master r. Miller . . . 181, 182 Mathieson r. London and County Bank .... 197 VAOE Mathilda, The 199 Matthew, Ex parte, Re Matthew 265 Maugham v. Hubbard . . 484 Maud, Re 219 Maunder v. Venn .... 403 Mears v. London and South- Western-Ry. Co. . . . 353 Melville v. Stringer . . . 117 Mercer, Ex parte, In re Wise 289 V. Irving .... 442 Merest v, Harvey . 323, 460 Merrivale v, Carson . . . 3S7 Merry weather V. Nixan 319, 416 Mersey Steel and Iron Co. V. Naylor 258 Metropolitan Asylum Dis- trict r. Hill 331 Metropolitan Bank, The, V. Pooley 376 Meux V. Great Eastern Ry. 414 Meyerstein's Trade - mark. Re 213 Mexborough, Earl of, and Wood, In re . . . 440, 443 Midland Insurance Co. v. Smith 313 Midland Ry. Co. v. Silvester 52 Milan Tramway Co., In re. Ex parte Theys .... 278 Mildred r. Maspons ... 150 Miles V. New Zealand Alford Estate Co. . . 39 Millen v. Brasch .... 130 Miller v. David .... 449 V. Hancock . . . 427 V. Race . . 183, 184 Millership v. Brookes . . 15 Mills V. Armstrong . . . 437 V. Dunham .... 294 V. Fowkes .... 262 Milward v. Midland Ry. Co. 423 Mineral Bottle Exchange Co. V. Booth .... 294 Missouri Steamship Co., Re 26 Mitchell V. Crassweller . 409 r. Jenkins . . . 378 V. Reynolds 226, 293, 295 Mitchison v. Thompson . 89 TAl'.LK OF CASES CITED. \Xlll Mogul Steamship Co. v. M'Gregor Monk V. Clayton .... Monkton v. Attorney- General Montague v. Benedict 247, 250 Montreal, Bank of v. Mun ster Bank .... Moodie v. Banister . . Moon, In re, Ex parte Dawes Moorcock, The . . . Moore v. Fiilham Vestry Moreton v. Hardern Morgan v. Hutchins V. Jackson . . . V. London General Omnibus Co. . . , V. Rowlands Morris v. Langdale . ■. V. London and West minster Bank . . . V, Salberg . . Morritt, In re. Ex part Official Eeceiver . . Morton v. Tibbitt . . Mostyn v. Fabrigas . . Mozon V. Sheppard . . Moyce v. Newington Moylei;. Jenkins . . . Mulligan v. Cole . . . MuUinger v. Florence . Mumford v. Collier . . V. Gething. . Munch's Application, Re Munday v. Asprey . . Munster v. Lamb . . . Murphy v. Sullivan . . V. Wilson . . . Murray v, Currie . . . Mutual and Permanent Building Society, lie Myers v. Elliott . . N NATIONAL Bolivian Navigation Co. v. Wil- son 12, 145 295 149 470 50 275 25 112 2S1 416 422 342 422 275 451 444 432 120 102 360 218 338 426 382 141 116 294 215 56 389 55 423 411 144 117 National Mercantile Bank V. Hampson .... V. Rymill National Telephone Co. Baker Nelson, In re, ■ Ex parte Hockaday .... V. Duncombe V. Liverpool Brew ery Co Nepean v. Doe . . Ness V. Stephenson Newbolt V. Bingham Newbould v. Smith . . Newlands v. National Em ployers' Accident Asso ciation . . . Newton v. Harland Nichols V. Marsland Nickson v. Brohan Noden v. Johnson Nordenfelt v. Maxim Nor denfelt Gun and Am munition Co. . . . Norman v. Bolt . . . V. Ricketts . . North Staffordshire Ry Co. V. Peek . . . Northcote v. Doughty Northumberland Avenue Hotel Co. Re, Sully'; Case Nugent V. Smith . . . Nurse v. Craig .... 348 348 431 120 253 • 244. 474 79 88 275 2S7 325 344 149 363 294 52 266 132 233 224 128 250 O OAKES V. Turquand . . 290 Oakey v. Dalton .... 355 Oakfi'eld, The . . . . . 204 O'Brien r. Clement . . . 381 Ockenden v. Henley . . 455 Official Recr., Ex parte, In re Morritt 120 Ex parte. In re Watson 116 Ogden V. Benas . ... 195 Ogle V. Earl Vane . . . 457 O'Keefe v. Walsh ... 68 Old V. Robson 296 XXIV TABLE OF CASES CITED. PAGE Oliver v. Hunting ... 35 V. Horsham Local Board 414 Omichund v. Barker . . 476 Onslow, Re, Ex parte Kibble 12, 233 Osborne v. London Docks Co V. Jackson O'Shea v. Wood . . O'Sullivan v. Thomas Ottway V. Hamilton . Owen V, Homan . . PADSTOW Assurance As sociation, In re Page V. Morgan . . . Paley v. Garnett . . . Palliser v. Gurney . . Palmer v. Bradley . . V. Grand Junction Ey. Co Palmer's Trade Mark, Re Pappa V. Rose .... Parker v. South - Eastern Ry. Co Parsons, Ex parte, In Townshend . . . 116, r. Brand . . . Pasley v. Freeman . . Paterson v. Gandesequi Patschieder v. Great West em Ey. Co. . . Pattison v. Jones . Pearce v. Brooks . Peareth v. Marriott Pearson v. Attorney- Gene- ral 469, V. Pearson V. Seligman Peek V. Gurney . Pennell v. Attenborough Penry v. Brown . Percival v. Nan son Perry v. Barnett . V. Fitzhowe . Perton, deceased, Re, Pear- son V. Attorney-Gen. 469, 488 423 474 301 251 52 224 lOI 422 245 79 129 215 3i« 39 117 117 III 146 136 386 PAGE Peter v. Compton ... 54 Peters i: Fleming . . . 234 Peto V. Blades 112 Phelan r. Tedcastle ... 56 Phelps V. London & North- western Ry. Co. . . . 135 Phenc^, In re 475 Phillips V. Barnett . . . 365 V. Eyre 361 V. Fordyce ... 52 V. Henson ... 79 V. Homfray . . 5, 324 V. Jansen . . 384, 396 471 293 2S7 284 126 72 472 304 334 471 V. London & South 459 315 147, 175 362 Western Ry. Co, Pickford v. Grand Junc- tion Ry. Co 134 Pigot's Case 181 Pilkington v. Scott . . . 295 Pinciani v. L. & S.-W. Ry. Co 131 Pinel's Case . . . 262, 269 Pirie v. Jliddle Dock Co. . 200 Pitman v. Francis . . . 219 Pittard v. Oliver .... 386 Planche v. Colburn . . . 260 Plating Co. v. Farquharson 297 Playford v. United King- dom Telegraph Co. Polhill V. Walter . . Polkinhorn v. Wright Pollen's Trustees, Ex parte, In re Davis 77 Pouting V. Noakes . . 343 Pooley's Trustee v, Whet- ham 220 Pope, In re 14 Popple V. Sylvester ... 11 Popplewell V. Hodgkinson 5 Portuguese Consolidated Copper Mines, Re . . . 146 Potter V. Dutfield ... 64 V. Peters ... 34, 35 Pounder v. North-Eastern Ry. Co 417 Powell V. Fall 431 Powers, Re, Lindsell v. Phillips 270 Preece V. Gilling . . . . 115 Pretty v. Bickmore . . . 330 Price ?'. Green . . 294, 440 TABLE OF CASES CITED. XXV PAGE Price V. Price 265 V. Earl of Torrington 473 Price's Patent Candle Co. , Re 213 Priestly v. Fowler . . . 421 Prince v. Howe .... 394 Protector Endowment Loan Co. t'. Grice. . . 442,443 Pryor v. Great Northern Ry. Co 420 Puckford V. Maxwell . . 265 Purcell V. Sowler . . . 38S Pusey V. Pusey .... 445 Pym V. Great Northern Ry. Co 460 Q QUARMAN V. Burnett . 410 Quartz Hill Gold-Mining Co. V. Eyre 379 Quenerduaine v. Cole . . 36 Quincey v. Sharp . . . 273 R RADLEY V. London and North-Western Ry. Co. 435 Railton v. Matthews . . 52 Rainforth, In re, Gwynne V. Gwynne 275 Ramsey V. Margrett . . 115 Raphael v. Bank of Eng- land 185 Rapier v. London Tram- ways Co 331 Rayner v. Mitchell . . . 409 V. Preston .... 206 Read v. Ambridge . . . 395 V. Anderson . . . 300 V. Coker . . 357, 358 V. Edwards . . . 346 V. Great Eastern Ry. Co 420 Reade v. Conquest . . . 212 Real and Personal Adv. Co. V. Clears . . . . 118 Reddie v. Scoolt .... 405 Redgrave v. Hurd . . . 283 Redhead v. Mid. Ry. Co. . 417 Reed v. Royal Ex. Co. . . 207 PAGE Reese Silver-Mining Co., In re 283 Reg. V. Birmingham . 472, 473 V. Brittleton . . . 479 V. Boyes 488 V. Castro 370 V. Cox & Railton . . 491 V. Ensor 400 r. Essex County Court Judge 453 V. Garbett .... 488 V. Jackson . . 252, 366 V. Labouchere . . . 391 r. Mahon 314 V. Moore 476 V. Vincent .... 353 V. Wilson .... 352 V. Yates 391 Reid V. Reid 241 Reuter v. Sala 29 Rex V. Topham .... 400 Reynolds, Fx parte, In re Reynolds 489 V. Bridge .... 442 Rhodes v. Moules . 158, 159 In re, Rhodes v. Rhodes 474 V. Smethurst . . 272 r. Sugden . . . 218 Rice, In 7-e 481 Rich V. Basterfield . . , 329 Richards v. London, Brigh- ton & South Coast Ry. Co. 136 V. West Middlesex Waterworks Co. . . . 364 Richardson v. Langridge . 65 r. Mellish . . 444 V. Williamson . 147 Rigborgs Minde, The . . 204 Rigby V. Bennett . . 328, 42S V. Connel .... 296 Riley v. Baxendale . . . 228 Rist V. Faux 403 Rivatz V. Gerussi .... 208 Robarts v. Tucker 186, 192, 194 Robbins v. Jones .... 427 Roberts, In re, Evans v. Thomas 116 r. Smitli .... 421 Robertson r. M'Donogh . 216 Robinson r. Lynes . . 243. 246 XXVI TABLE OF CASES CITED. Robinson i: M'Donnell . ■ . — r. Macdonnell — V. Marchant , - — - — — — V. Rutter . . Robson V. North-Eastern . Ry. Co. . . . Rodwell .V. Philips Roe V. Mutual Fund Loan Association, Limited Rofifey i;. Henderson Rogers, £x parte, In i\ Rogers ...... V. Lambert . . i Rolin V. Steward . , . Rona, The Ronan v. Midland Ry. Co. Ronayne v. Sherrard Roopeu D'Avigdor . . Roscoe r. Boden ... Roscorla v. Thomas . . 4 Rossiter v. Miller . . . Rotherham Alum anc '' Chemical Co., In re . Rousillon V. Rousillon . Routledge v. Grant . . Rowe V. London Sch. Brd Rowntree v. Richardson Royal Aquarium v. Parkin son Royal Bank of Scotland v. ' Tottenham . . Royle V. Busby . Ruddiman r. Smith Ruddy V. Midland Western Ry. Co. Ruel V. Tatnell . Rugg V. Minett Russell, Ex parte, Butterworth r. Shenton Ryder v. Wombwell Rylands v. Fletcher Great PAGE 2S9 97 396 150 420 61 17 71 300 , 142 444 199 133 63 313 429 , III 64 32 294 35 454 39 389 194 221 409 132 383 95 19 329 235 343 SAINTER V. Ferguson . . 442 St. Helen's Smelting Co. v. . Tipping 329 St. Lawrence, The . . . 202 Salaman v. Warner ... 5 PAGE Sale V, Lambert .... 64 Salford, Mayor of v. Lever 150 Sanders v. Teape . . 344, 4 1 3 Sanford r. Clarke ... 66 Sanguienetti v. Stuckey's Banking Co 19 Sarson v. Roberts ... 90 Satanita, The 204 Salherwaite r. Duerst .. . 401 Saunders I'. Dence . . .150 Saunderson v. Jackson . 56, 57 Sayers v. Collyer . . , . 461 r. Norriss ... 57 Schaffers r. General Steam Navigation Co . . . . 423. Schofield, Ex parte, Be Firth 490 Scholfield V. Earl of Lon- donderry 182 Scott V. Lord Seymour . . 360 V. Morley . . . 246, 373 V. Sheppard .... 364 r. Stansfield. . . . 318 V. Uxbridge Ry. Co. . 267 Scovell V. Boxall .... 62 Seager, Re 239 Seaman v. Netherclifi . . 3S9 Seaton, Ex parte. Re Deer- hurst . 12 ■ V. Benedict 247, 248, 250 Seeley.r. Briggs ..... 239 Semayne's Case ... 80, 342 Senior v. Ward . . . . 421 Seroka r. Kattenberg . . 252 Sewell V. Burdick .... 203 Seymour v. Bridge . . . 304 Sharp V. Powell .... 449 Shaw V. Benson .... 224 V. Great Western Ry. Co. ...... 133 t,. Port Philip Gold Mining Co 286 Sheffield v. London Joint Stock Bank , , . . . 185 Shepherd, In re, Ex parte Ball 313 Shipley v. Todhunter . . 395 Shore V. Wilson .... 28 Sibreez. Tripp .... 263 Silvester, Re, Mid Ry. Co. • r. Silvester ..... 52 TABLE OF CASES CITED. XXVll PAGE Simm V. Anglo-American Telegraph Co 16 Simmons, In re, Ex parte Carnac 282 V. Mitchell 381, 394 V. Woodward . 117 ■ V. Great Western Ry. Co 132 Simon v. Lloyd .... 265 Simpson's Claim, Jie Cun- ningham 224 Simpson v. Bloss .... 302 V. Crippin . . . 258 ■ • V. Eggington . . 261 r- V. Hartopp . . 76 V. Nicholls . . . 306 .Sinclair v. Bowles . . 259 Singer Manufacturing Co. V. Clark 127 Singleton v. Eastern Coun- ties Ry. Co 437 Six Carpenters' Case, The, 83, 342 Skinner v. L. B. & S. C. Ry. Co 407 i: Weguelin . . . 144 Skrine v. Gordon .... 234 Slade V. Tucker .... 493 Slattery v. Dublin, &c., Ry. Co 416 Sly V. Blake 270 Smale v. Roberts .... 25 Small V. National Provincial Bank of England ... 74 Smethurst v. Taylor . . . 145 Smith, In re, Ex parte Brown 10 V. Algar .... 39 V. Anderson . 224, 303 V. Baker .... 425 V. Braine .... 495 V. Chadwick . . . 285 V. Cook .... 346 V. Dickenson . . 442 — V. Keal . . , . . 432 V. Land and House Property Corporation . 286 V. London and South-Western Ry. Co. . 430 V. Marrable ... 90 V. Morgan 13 Smith V. Roche . . . — V. Steele . . . V. Surman . . V. Thorne . . , V. Union Bank of 147, Co. London . . . Smout V. Ilberry . Snead v. Watkins .... Snow V. Whitehead . . . Society Gdn^rale de Paris V. Milders Solomon v. Davis .... Soltau V. De Held . 329, Soltykoff, Ee, Ex parte Margrett Somerset, Duke of v. Cookson .... Southcote V. Stanley Southee v. Denny . South Hetton Coal Co North-Eastern News As sociation . • . Spears v. Hartley Speight V. Olivrera . Spencer v. Slater . . Spice V. Bacon . . . Spirett V. Willows Stainton v. The Carron Stamford Banking Co Smith Standard Manufacturing Co., In re, Ex parte Lowe Stanford, Ex parte, In re Barber .... Stanley v. Powell . Staplyton v. Clough Stead V. Salt . . Stein V. Cope . . Stevens r. Marston V. Sampson V. Woodward Stevenson v. M'Lean V. Newnbam Stewart v. Great Western Ry. Co. '. . Stiles V. Cardiff Steam Navigation Co. Stilk r. Meyrick Stockport Waterworks Co V. Potter . . Stokell V. Niven PAGB 44 422 61 273 197 252 141 343 257 171 332 236 445 413 396 381 272 405 289 140 289 150 275 116 118 434 474 158 145 116 387 409 36 290 269 346 45 330 64 XXVI 11 TABLE OF CASES CITED. Stokes V. Lewis .... Stonor V. Fowle .... Storey v. Ashton .... Stott V. Fairlamb ... 28 Strahan v. Universal Stock Exchange .... Stretton v. Rastell . . Strong, In re ... ■ V. Foster . . , Stroud V. Austin . . . Stuart V. Bell . . . • V. Evans . . Studds V. "Watson . . Studdy V. Beesty . . . Stum V. Dixon .... Sturges V. Bridgman Sturla V. Freccia . . , SuflEell V. The Bank England .... Suffell & Watts, In Ex. parte Brown Sury V. Pigot . . . 326, Sussex Peerage Case 470 Sutton V. Grey V. Great Western Ry. Co. . . - V. Sutton 85, Swain r. Ayres . . Sweet V. Lee . . . Sweeting v. Pearce . Swift V. Pannell . . Swinfen v. Swinfen Sykes v. Beadon . . T TAILBY V. Official Recr. . Talley v. Great Western Ry. Co. ... Tallis V. Tallis . . Tancred v. Delagoa Bay Co. Limited . . Tanner v. Smart . Tatam v. Reeve Tattersall v. National Steamship Co. Limited Taylor v. Bowers . r. M'Keand v. Roe . . V. Smith . V. Wit ham PAGE 42 374 409 , 186 301 265 372 52 457 385 422 34 181 319 331 475 182 218 327 474 151 137 270 75 55 304 122 499 224 165 136 294 165 274 300 •33 290 348 453 102 472 Temperton v. Bussell Tetley v. Griffith . . Thacker v. Hardy V. Wheatley . PAGE . 406 • ^45 300, 301 • 300 Theys, Ex parte, Re Milan Tramways Co 278 Thol V. Henderson . . . 447 Thomas r. Edwards . . . 148 V. Evans .... 267 V. Kelly . . . 118, 119 V. Quartermaine . 423, 424, 425 Thompson, In the goods of 475 V. Lacy .... V. North-Eastern Ry. Co. V. Ross Thomson v. Davenport . V. Robertson . V. Weems . . Thorogood v. Bryan . . V. Robinson Co, 393 289 141 79 399 324 212 225 o, 427 12 Thorpe v. Coombe . Three Towns Banking V. Maddever . . . Threlfal r. Barwick . Thwaites v. Wilding Tidman v. Ainslie Tillett V. Ward Tinsley v. Lacy Todd V. Emly . V. Flight . ToUemache, Re Tomlinson v. Consolidated Credit Co. . . . Torrence v. Gibbons Townsend v. Watken In re. Ex parte Parsons . . . . 116, 117 Trafford v. Blanc Tredegar Iron and Coal Co, V. Gielgud .... Trotter v. Maclean . . Trufort, In re . , . . Truman v. London, Brigh ton, and South Coast Ry. Co. . . Tucker v. Laing V. Linger 470 138 436 404 146 426 208 437 349 176 Tuff V. Warman 82 403 347 12 457 473 12 431 52 70 435 TABLE OF CASES CITED. XXIX Tullidge V. Wade . . . Tully V. Reid .... Tunney v. Midland Ky. Co Turner, Re, Turner v. Spencer . . V. Hockey V. Rookes V. Trisby PAGE 451 326 421 Twynne's Case Tyrringham's Case U UDELL r. Atherton Ultzen V. Nichols ... Underhay v. Reed . . Underwood v. Underwood United Telephone Co. v London and Globe Tele phone and Maintenance Co. . . . Usher v. Rich 270 348 251 235 288 326, 327 286 139 68 264 210 184 238 VALENTINI V. Canali . . Vallance, In re, Vallance V. Blagden 296 Vance v. Lowther . . . Vane v. Whittington . . Varley v. Hickman . . . Vaughan v. Tail Vale Ry. Co 352, Venables v. Smith . Vere v. Ashby . . . Vicars v. Wilcocks Victoria, The . . . Vincent v. Vincent . Vivian v. Moat . . V. Walker . . Volant V. Soyer . , Vreda, The .... 181 482 301 430 411 145 451 204 53 471 471 492 201 W Mar- 219 40 WADSWORTH shall Wain V. Warlters .... Wakelin v. London and South-Western Ry. Co. . 436 Wakeman v. Robinson . . 434 Wakley v. Froggatt . . . 280 Walker, lie, Ex parte Gould .... He, Walker Walker V. Bradford Bank V. Hirsch . V. Midland Ry V. Mottram V. Wiltshire 44 2'>art Waller v. Lock Wallmgford v. Mutual So ciety .... Wallis V. Smith . Walmesly v. Cooper Walsby v. Anly Walsh r. Lonsdale Walter v. Everard Ward V. Monaghan r. Sinfield . V. Weeks . Warne v. Seebohm Warner v. M'Kay Wason V. Walter . Watling V. Oastler Watson, In re. Ex Official Receiver v. Strickland V. Threkeld V. Whitmore Watts V. Shuttleworth Waugh V. Carver Weatherstone v. Hawkins Weaver, In re . Webb V. Bevan r. Page Webber r. Lee . Webster v. British E Life Assurance Co Weeton v. Woodcock Weir V. Bell . . Welch V, London North-Western Ry Weldon v. Winslow V, Neal . . Wells v. Mayor of Kings tou-upon-Hull . Wen man v. Ash . Wennall v. Adney Wennhak v. Morgan Wentworth v. Outhw Old Co 71 371 164 155 141 293 493 390 303 1.442 279 295 75 238 440 477 399 212 154 387 420 116 118 246 377 52 155 386 253 395 223 62 mpire 452, 453 71 285 and Co aite 135 246 246 223 384 44 384 107 XXX TABLE OF CASES CITED. West r. Blakeway . . . West London Commercial Bank v. Kitson .... Whalley v. Lancashire and Yorkshire Kj. Co. . . . Whatley r. HoUoway . . Whincup V. Hughes . . . Whitcomb v. Whiting 274 White V. British Empire Mutual Life Assurance Co r. Garden . . . V. Jameson . . V. Spettigue . . PAGE 72 175 344 423 46 I 275 Whiteley v. Adams . Whitham v. Kershaw . Whitmore v. Farley . . Whittingham v. Murdy Whyman v. Garth . . Wickham v. Wickham . Wigglesworth v. Dallison Wightman r. Townroe . Wilcox V. Redhead . . Wild V. Waygood . . Wildes V. Russell . . . Wilkinson r. Calvert V. Collyer . . . Willans v. Taylor . . . Williams, In re, Williams V. Stretton . . V. Carwardin r. Glenister V. Griffiths V. Knight . V. Smith . Williamson v. Frere Willis, In re, Ex Kennedy Willis, Winder & Co. Coombe Wilson V. Brett . . 124, V. Finch- Hatton r. Ford ... r. Merry . . 229, • V. Newport Dock Co. V. Owens .... V. Rastall .... V. The Xantho . . Wilton V. Girdleston . . 209 290 330 104 85. 390 455 4S» 62 237 483 151 29 162 67 423 12 65 70 377 parte 365 38 363 273 237 383 384 116 432 150 90 251 422 447 409 491 203 349 Windhill Local Board Vint Winehouse v. Winehouse Wing V. Angrave . . . Winn V. Bull .... Winterbottom r. Wright Winterburn v. Brooks . Wise, In re. Ex parte Mercer Wiseman v. Vanderput . Withernsea Brick Works In re .... Withers v. Reynolds Witt V. Banner Wood V. Lane . . V. Leadbitter Woodgate V. Great Western Ry. Co Woodhouse v. Farebrother Working Men's Mutual Society, Limited, Re . . Worth V. Gilling . . . . Wragg's Trade-mark, Re . Wren v. Wield . . Wright V. Pearson V. Woodgate Wyld V. Pickford . Wyse V. Russell . 385, 29S 13 475 32 421 363 289 13 260 119 365 326 433 280 223 346 215 335 345 390 129 56 YARMOUTH v. France 422, 425 Yates, Re, Batchelor v. Yates 74 V. Freckleton . . . 261 V. White 459 Yeoland's Consols, Re . . 237 Young r. Austen . . . . 171 V. Grote .... 194 r. HoUoway . . . 493 ZAGURY V. Furnell ... 95 Zunz V. South-Eastern Ry. Co 133, 134 INDEX TO STATUTES CITED. 13 Edw. I, c. 18 4 Edw. 3, c. 7 . . 25 Edw. 3, St. 2, c, 5 Rich. 2 St. I. c. * 27 Hen. 8, c. 16 2 & 3 Phil. & M. 5 Eliz. c. 9 . 13 Eliz. c. 5 . 27 Eliz. c. 4 . 31 Eliz. c. 6 . 31 Eliz. c. 12 21 Jac. I, c. 3 21 Jac. I, c. 16 393. 398 29 Car. 2, c. 3 . . , ss. I 143. 306 — , s. 4 61, 99, 226 , s. 7 -, s. 9 ■ , s. 10 , s. 17 57, 61, 99 29 Car. 2, c. 7 . . 2 Wm. & M. sess. i 453 10 & II Wm. 3, c. 17 3 & 4 Anne, c. 9 4 & 5 Anne, c. 16 8 Anne, c. 14 . 9 Anne, c. 14 . 12 Anne, st. 2, c. 2 Geo. 2, c. 22 . 4 Geo. 2, c. 28 . 8 Geo. 2, c. 24 . 11 Geo. 2, c. 19 13 Geo. 2, c. 19 18 Geo. 2, c. 34 19 Geo. 2, c. 37 PAGE 13 355 355 80 467 338 462 18, 287 19, 289 . 306 . 338 . 209 20, 271, 364, • . 47. 143 2, 3 57. 64, 48, 57, 60, ... 48 ... 48 • • 13 48, 50, 55, . 306 82, 83, 24 Geo. 2, c. 44 c-5 • 303 . 163 . 163, 271 81, 85, 86 304 306 277 66 277 81,83 303 303 206 67, c. 48 c. 78 c. 119 c. 141 4. c. 78 4, c. 94 14 Geo. 3, 14 Geo. 3, 42 Geo. 3, 53 Geo. 3, I & 2 Geo. 6 & 7 Geo 7 & 8 Geo. 4, 0. 18 9 Geo. 4, c. 14 . . 06, 207, 306 • 430 • 303 • 58 169, 172 • 152 • 362 47,99 57, 274 • 231 58, 287 • 99 68, 130, 4,0 1 1 Geo. 4, & I Wm 131 I Wm. 4, c. 47 232 I &2 Wm. 4, c. 32 . .340, 341 3 & 4 Wm. 4, c. 27 . . . 85 3 & 4 Wm. 4, c. 42 . 20, 81, 85, 270, 271, 273, 323, 355, 446, 452, 453 3 & 4^ Wm. 4, 0. 98 . . . 267 3 & 4 Wm. 4, c. 104 ... 20 5 & 6 Wm. 4,0.41 . 304, 305 5 & 6 Wm. 4, c. 50 . . . 415 5 & 6 Wm. 4, c. S3 . . . 209 7 Wm. 4, & I Vict. c. 26 . 483 1 & 2 Vict. c. no . .9 2 & 3 Vict. c. 1 1 67 2 & 3 Vict. c. 3 Vict. c. 5 . 5 & 6 Vict, c, 5 & 6 Vict, c, 5 & 6 Vict, c, 6 & 7 Vict, c, 6 & 7 Vict, c, 6 & 7 Vict, c 6 & 7 Vict, c, 6 & 7 Vict, c 7 & 8 Vict, c, 39 45 40 73 85 86 96 66 . 13, 453 14 . 209 ■ 303 • 69 • 152 211, 212 • 78 . 217 477. 47S . 411 391, 392 • 255 XXXll 1^,-DEX TO STATUTES CITED. 7 & S Vict. c. 69 . 8 & 9 Vict. c. 20 . 8 & 9 Vict. c. 75 . 8 & 9 Vict. c. 106 . 8 & 9 Vict. c. 109 , 303. 304 9 & 10 Vict. c. 93 . 436, 459 II & 12 Vict. c. 44 . 14 & 15 Vict. c. 19 . 14 & 15 Vict. c. 25 . 14 & 15 Vict. c. 99 . 15 & 16 Vict. c. 76, s PAGE . . . 209 • 137. 325 ... 392 . 64, 65, 143 29S, 299, 302, 418,419,420, 367 369 72, 73 478 4S2 84 23 & 24 Vict. c. 126 117 210 211 16 & 17 Vict. c. 59 . . . 194 16 & 17 Vict. c. 83 . . . 479 17 & 18 Vict. c. 31 131, 133, 137, 138 17 & 18 Vict. c. 36 17 & iS Vict. c. 12 s. 22 . s. 23. s. 24 . s. 25. s. 26 . s. 27 . s. 78. 122 478 478 47S 477 471 483 355> 444 18 & 19 Vict. c. 43 18 & 19 Vict, cm 18 & 19 Vict. c. 122 19 & 20 Vict. c. 97, s. ^.83 s. 87 192 s. 3 . s. 5 • s. 6 . s. 10 S, II S. 12 s. 13 , s. 14 280 190 . 232 163, 202 . 428 . 109 40, 51. 57, 20 & 21 Vict. c. 77 20 & 21 Vict. c. 85 21 & 22 Vict. c. 27 21 & 22 Vict. c. 79 21 & 22 Vict. c. 90 22 & 23 Vict. c. 35 23 Vict. c. 7 , , 23 & 24 Vict. c. 38 SI 169 271 271 274 274 275 • 244 . 461 • 197 . 221 . 88 . 221 14, 270 127 ,96 ■97 , 100 89 ,41 125 •75 ■95 4 112 -o "- — r ■ -" — 23 & 24 Vict. 24 & 25 Vict. 370 24 & 25 Vict, c 24 & 25 Vict, c, 25 & 26 Vict. c. 26 & 27 Vict, c, 26 & 27 Vict. c. 27 & 28 Vict. c. 27 & 28 Vict. c. 27 & 28 Vict. c. x^. 28 & 29 Vict. c. 60 28 & 29 Vict. c. 86 29 & 30 Vict. c. 69 29 & 30 Vict. c. 96 30 & 31 Vict. c. 29 30 & 31 Vict. c. 131 30 & 31 Vict. c. 144 31 & 32 Vict. c. 54 31 & 32 Vict. c. 86 31 & 32 Vict. c. 119 31 & 32 Vict. c. 122 32 & 33 Vict. c. 46 32 & 33 Vict. c. 62 372, 373. 374 32 & 33 Vict. c. 68 479 33 Vict. c. 10 . . 33 Vict. c. 14 . . 33 & 34 Vict. 0. 23 33 & 34 Vict. c. 28 297 33 & 34 Vict. c. 35 33 & 34 Vict. c. 9S 34 & 35 A^ict. 0. 31 34 & 35 Vict. c. 56 34 & 35 Vict. c. 74 34 & 35 Vict. c. 78 34 & 35 Vict. c. 79 35 & 36 Vict. c. 50 35 & 36 Vict. c. 65 35 & 36 Vict. c. 92 35 & 36 Vict. c. 93 36 & 37 Vict. c. 66, s. 24 279, 280 PAGE . . 88 105, 218 337, 338, . • 369 314, 362 223, 224 . . 141 . . 462 • ■ 41S 8, 419, 436 . . 14 345. 413 . . 156 • 135 122 • • 303 224, 225 . . 209 12, 13 . . 209 • 133 ■ • 249 . . 20 9, 10, 371. 476, 478, . . 267 162, 255 • • 313 217, 218, 207, 241 296 351 176 133 78 78 403 82 126, 127,370 278, , s. 25 II, 17, 20, 29, 60, 67, 164, 283, 323, 489 201, 251, 9 37 & 38 Vict. c. 50 s- 34 163 242 INDEX TO STATUTES CITED. XXXlll 37 & 38 Vict. c. 57 PAGE 85, 270, 45 & 46 Vict. 0. 61 37 & 38 Vict. c. 37 & 38 Vict. c. 38 & 39 Vict. c. 38 & 39 Vict. c. 38 & 39 Vict. c. 38 & 39 Vict. c. 38 & 39 Vict. c. 39 & 40 Vict. c. 40 & 41 Vict. c. 40 & 41 Vict. c. 40 & 41 Vict. c. 41 Vict. c. 13 . 41 Vict. c. 19 . 41 & 42 Vict. c. 116, 118, 119, 41 & 42 Vict. c. 41 & 42 Vict. c. 41 & 42 Vict. c. 42 Vict. c. 1 1 . 43 & 44 Vict. c. 423, 424, 425, 43 & 44 Vict. c. 44 & 45 Vict. c. 88, 118, 149 44 & 45 Vict. c. 44 & 45 Vict. c. 44 & 45 Vict. c. 45 Vict. c. 9 45 & 46 Vict. c. 45 & 46 Vict. c. 45 & 46 Vict. c. 119, 121, 122, 45 & 46 Vict. c. 62 17, 231, 232 78 . . 63,476 77, s. 10 . 12 217 422 214 73 197 479 467 152 169 244, 365 31 74, 114, 115, 121, 122, 482 33 . 221, 222 38 . . 104, 141 54 • ■ . 372 . . . 467, 468 42 229,418, 422, 426 47 ■ 341, 342 41 . 24, 63, 84, :i7, 218 ,88, 391 222 • 475 • 149 . 211 176, 179 44 60 62 39 40 43 114, 116, 117, 483 61 . 3, 59, 166 — , s. 3 . 1 87 — , s. 4 — , s. 8 . 10 -, S. 12 -, s. n — , s. 14 -, s. 15 -, s. 16 -, s. 17 -, s. 19 -, S. 22 -, s. 24 -, s. 25 168 176 177 177 175. 170 173 166, 172 237 186 174 305 '74 ^73 194 180 191 183. li 194 197 45 & 46 Vict. c. 75, 246 s. 26 s. 27 s. 28 s. 29 s. 30 .s. 31 s-34 •'^•35 s. 36 s. 44 s-45 s. 48 s. 49 s. 50 s. 51 s. 54 s- 57 s. 59 s. 60 s. 61 s. 62 s. 64 s. 69 s. 70 s. 72 s- 73 .'^. 74 s. 76 s. 77 s. 78 s. 79 s. 80 s. 81 s. 82 s. S3 s. 87 s. 89 s. 92 s. 96 PAOE 175 185 171 174, 305 172, 172, 173 •83, 171 193 178 179, 181 188 169 176, 187 '94 188 188 188 182, 191 191 190 166, 193 196 196 196 196 196 196 197 166 178 172, I So 170- 244. XXXIV INDEX TO STATUTES CITED. 479 45 & 46 Vict. c. 75, s. 2 279 , s. 5 . , s. II . S. 12 s. 13 , s. 14 , S. 22 46 Vict. c. 3 .... 46 & 47 Vict. c. 19 . . 46 & 47 Vict. c. 31 . . 46 & 47 Vict. c. 49 . . 46 & 47 Vict. c. 52, s. iS , s. 42 , s. 47 , s. 49 -.s. 55 , s. 103 374 46 & 47 Vict. c. 57 214, 215 46 & 47 Vict. c. 61 . 71, 72, 74, 77. 86 47 & 48 Vict. c. 14 . 48 & 49 Vict. c. 69 50 & 51 Vict. c. 19 50 & 51 Vict. c. 28 . 5c & 51 Vict. c. 57 . 50 & 51 Vict. c. 58 . 51 & 52 Vict. c. 21 . 51 & 52 Vict. c. 25 51 & 52 Vict. c. 46 . 51 & 52 Vict. c. 50 . 214 51 & 52 Vict. c. 51 . 51 & 52 Vict. c. 62 . 51 & 52 Vict. c. 64 . 393 52 & 53 Vict. c. 45 . 153 52 & 53 Vict. c. 63 . 53 & 54 Vict. c. 39 . 154. 155. '56, 157- 160, 161 53 & 54 Vict. c. 53 . 53 & 54 Vict. c. 57 ■ 53 & 54 Vict. c. 64 . 416 125 PAGE 241, 241 207 365. 242 242 242 242 490 221 226 461 53 46 86 19 340 87 373, i^ 209, 210, . 65,66, • • 479 479. 480 325, 415 114, 215 . 264 . 226 78,83 ■ 137 • 476 210, 212, . . 264 . . 87 388, 391, loS, 152, • 24, 30 • 3. 52, 158, 159- . 115 . . 67 285, 319, 53 & 54 Vict. c. 70 53 & 54 Vict. c. 71 87, 264, 490 54 Vict. c. 8 . . 54 & 55 Vict. c. 35 54 & 55 Vict. c. 39 308, 487 54 & 55 Vict. c. 51 55 & 56 Vict. c. 4 . 55 & 56 Vict. c. 9 . 55 & 56 Vict. c. 13 56 & 57 Vict. c. 21 56 & 57 Vict. c. 61 56 & 57 Vict. c. 63 56 & 57 Vict. c. 71 PAGE - • 90 . 13,86, . . 69 . . 115 190, 307, • • 397 . . • 257 299,300,301 . . . 89 . ■ 19, 289 . . . 367 . ■ • 245 . . • 3, 47 91 233. 234 50, 55- 57, 61, 100 s. I s. 2 s. 4 s. 6 . s. 7 . s. 8 . s. 10 . s. 13 , s. 14 , s. 15 , s. 16 . s. 17 , s. 18 , s. 19 , s. 20 , S. 22 , s. 24 , 5- 25 , s. 26 , s. 27 ■, s. 28 , s. 29 -, s. 30 -, s. 31 -, s- 32 •,s. 33 -, s. 34 -, s. 35 -, s. 36 -. s. 39 -, s. 41 -, s. 42 -, s. 43 97 30 110 112 "3 113 "3 93 93 93 98 93 337 337 153 340 91 91 92 1X2 258 92 92 92 92 92 103 104 104 104 INDEX TO STATUTES CITED. XXXV PAGE 107 107 202 S6&57 Vict. c. 71, s, 44 , s. 45 ■, s. 48 107, 108 ~ . s. 49 . 103 , s. 50 103, 456 ,8.51 103,456 ' s. 52 23, 109, 445 56 & 57 Vict. c. 71, s. 53 ,5.58 • , s. 62 57 & 58 Vict. c. 60 . 3, 199, 201, 204, 255 58 Vict. c. 16 . . . 58 & 59 Vict. c. 24 . . 58 & 59 Vict. c. 27 . . 58 & 59 Vict. c. 39 . . PAoe 109, 457 102 108 109 58, 198. 190, 307 7S ,83 74 365 EDITIONS OF TEXT-BOOKS REFERRED TO, Of which more than one Edition has been published. Addison on Torts .... Anson's Contracts .... Arnould on Marine Assurance . Baldwin's Bankruptcy Benjamin's Sale of Personal Property Broom's Commentaries Broom's Legal Maxims Brown's Law Dictionary . Bunyon on Life Assurance Byles on Bills Chitty on Contracts .... Folkard on Slander and Libel (founded on Starkie' Slander and Libel) Greenwood's Real Property Statutes Indermaur's Manual of Equity . Indermaur's Manual of Practice Mayne's Treatise on Damages . Pollock's Digest of the Law of Partnership Pollock's Contracts . Powell's Principles and Practice of the Law of Evidence Prideaux's Conveyancing Ringwood's Torts Smith's Leading Cases Smith's Mercantile Law Suell's Principles of Equity Story on Agency Tudor's Conveyancing Cases Tudor's Mercantile Cases Wharton's Law Lexicon White and Tudor's Equity Case Williams' and Bruce's Admiralty Practice Williams' Principles of the Law of Personal Property Woodfall's Landlord and Tenant . . . ■ 7th Edition 7th Edition 6th Edition 7th Edition 4th Edition 8th Edition 6th Edition 2nd Edition 3rd Edition 15th Edition 12th Edition 5th Edition 2nd Edition 3rd Edition 6th Edition 5th Edition 6th Edition 6th Edition 6th Edition 1 6th Edition 2nd Edition 9th Edition loth Edition nth Edition 9th Edition 3rd Edition 3rd Edition 9th Edition 7th Edition 2nd Edition 14th Edition 1 5lh Edition the common PRINCIPLES OF THE COMMON LAW INTRODUCTION. The origin of the Common Law of England — though The origin of it cannot be now certainly and surely found, being {.^^ lost in antiquity — may probably be set down to the customs and usages in the first instance of the early Britons, afterwards amended and added to by those of the Romans and other nations who spread themselves over the country. The early Common Law was of a narrow and limited kind, increased according to men's necessities, until, in the present highly artificial state in which we live, it has assumed such wide dimensions as to make it difiicult to believe in its early foundation. The terra " Common Law " would seem, accordinjr to Blackstone (a), to have originated in contradistinction to other laws, or more reasonably as a law common and general to the whole realm ; and, used in a wide and large sense, comprehends now not only the general law of the realm, but also that contained in Acts of Parliament ; and it may be divided as of two kinds, viz. : (i) The lex non scripfa, or unwritten law ; and (2) the lex scripta, or written law. With regard to the former division, in the very ancient times, in consequence of the utter ignorance of the mass of the people, the laws could not be, and were not, reduced into writinor, but were to a certain extent transmitted from age to age (a) I Bl. Com. 67. 2 INTRODUCTION. by word of mouth. But this is not all that is included in the lex non scripta, which term is indeed used in contradistinction to the statute law, which forms the actual lex scripta, for the monuments and records of our legal customs are now contained in the books of the reports of the decisions of different judges from time to time, and in the treatises of the different writers, commencing at periods of high antiquity and continued until the present time (&). With regard to the latter division, viz., the lex scripta, this comprises the statute law of the realm. In the earlier times but little attention was given to the laws, and indeed, from the essentially warlike nature of the people, it was not the greatest requirement ; but gradually, as civilization advanced, the lex non scripia was found insufficient, and indeed sometimes contrary to the benefit of the country, and the direct intervention of the legislature was required to amend, alter, and vary, or in some cases to simply declare, the law when doubts had arisen on it. As civilization has progressed, and age after age has become more and more artificial, so the statute law has increased, as is evidenced by the multi- tude of Acts of Parliament necessary to be referred to by the student of our laws. As to the It might be interesting, and perhaps useful, to here of aTodef^ enter into a consideration of the relative advantages and disadvantages of a code of laws, but such a dis- cussion would be beyond the scope of a work like the present, and the subject must be dismissed with a few remarks. True, there is in our present system of laws the disadvantage that it involves to master it deep and intricate study, and it requires to be traced back to the earliest times to understand various reasonings ; but, on the other hand, though a code would do away with this necessity of historical research, yet it would present law in a much more inflexible state than (h) I Bl. Com. 6. INTKODUCTION. 3 now ; aud as no code could be perfect, it is to be feared that doubts of construction and the like would arise ; and perhaps, therefore, to leave things on tlieii- present foundation would be well (c). The term " common law " has also been used in con- (Jouimon law trad is ti notion to equity jurisprudence, which is of later guished from growth, aud comprehends matters of natural justice "^'lui'y- (being other than matters of mei-e conscience), for which courts of law gave no relief, or no proper relief. Probably this distinction between common law and ■equity must to some extent always practically exist, for although the Judicature Acts of 1873 and 1875, to a certain extent, fuse law and equity, and though also the rules of equity are to govern where they have clashed with the rules of law (as will be frequently noticed in the course of the following- pages), yet as certain matters were formerly strictly the subjects of cognizance in the Common Law Courts and others in the Court of Chancery, so the like matters respectively are and will be commenced and carried on in the analogous divisions of the present High Court of Justice. It is important to have a clear and correct idea of Of the nature the nature of a person's rights which will entitle him right whicV to maintain an action for their infringrement. The 7.'^^ entitle " luni to main- two main divisions of the present work are Contracts tain an action. and Torts. In the case of the infringement of any person's legal rights, i.e. if a valid contract be broken, or a tortious act committed, the other party to the con- tract, or the person against whom the tort was com- mitted, has a right of action in respect of such breach of contract or tortious act ; and even though he suffers no substantial damage, yet he nevertheless has his right (c) A first attempt at codification of one branch of the law was made by the Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61). See also the Partnership Act, 1890 (53 & 54 Vict. c. 39), the Sale of Goods Act 1893 (56 & 57 Vict. c. 71), and the Merchant Shipping Act, 1S94 (57 & 58 Vict. c. 60), which are the most recent efforts in this direction. INTKODUCTION. Injuria sine (lam no. Askbv V. WKiic. of action. Tlie rule upon this point is, that Injuria sine damno will entitle a person to maintain an action, which, plainly expressed, means that when a person has suf- fered what in the eyes of the law is looked upon as a legal injury (d), he must have a corresponding right of action, even though he has suffered no harm. This is illustrated by the well-known case of Ashhy v. White (e), which was an action against a returning officer for maliciously refusing to receive the plaintiff's vote on an election of burgesses to serve in Parliament, and it was held that the defendant having so maliciously refused to receive the plaintiff's vote, although the members for whom he wished to vote were actually elected, and therefore he suffered no damage, yet he had a good right of action, for he had a legal right to vote, and that right had been infringed. Damnum siiic injuria. Chasemorc v. I:icka7-d$. On the other hand, there are many cases in which a person, although he suffers damage by the act of another, yet has no right of action, because there has been no irifringcmenf of what the lavj looks upon as a legal right, and this is expressed by the maxim, that Damnum sine injuria will not suffice to enable a person to maintain an action. Thus, in an action of seduction, unless loss of service is proved by the plaintiff, the action cannot be maintained, for though the plaintiff may have suffered damage without the loss of service, yet he has not sustained what in the eyes of the law is looked upon as an injury. The best instance, however, on this point is perhaps found in the principle that a person may deal with the soil of his own land as he thinks fit, so that if he digs down and thus deprives his neigh- bour of water that would otherwise percolate through (cZ) The italicised words must be particularly observed, because therf are many wrongful acts, i.e. acts not merely morally wrong and inde- fensible, but even contra legem, which give no right of action unless productive of actual damage, such as the breach of a public duty, men negligence, fraud, ordinary cases of slander. In such cases it is some- times said that injuria and damnum must combine in order to constitutt a right enforceable by action (Broom's Conis. 89, 90). (e) I S. L. C. 268 ; Lord Raymond, 938. INTRODUCTION. ,5 the laud, yet although this operates to the great detri- ment of such neighbour, it does not constitute the invasion of a legal right, and will not form any founda- tion for an action (/). And if a subsidence be caused by the withdrawal of such underground water, the same rule holds good (jj) — it is merely Damnum sine in- juria ih). However, in the words of Mr. Broom, in his ' Commentaries on the Common Law,' " in the vast majority of cases which are brought into courts of justice, both damnum and injuria combine in support of the claim put forth, the object of the plaintiff usually being to recover by his action substantial damages " (i). When both injuria, and damnum are combined, then, as a general rule, there is always a good cause of action, except indeed where there is some special reason to the contrary, e.g. some matter of public policy. Although a person may have suffered an injury in Actio the eyes of the law, whether accompanied with actual ^^,Zritur " damage or not, there are many cases in which, if '"w. ?j«-.wna. he dies before he has enforced his rights, the injury dies with him, the common law maxim being. Actio personalis moritur cum pcrsoiid. And so also, on the same principle, there are many cases in which a person having injured another dies, and there is an end of the remedy that the injured party would otherwise have had (k). Taken generally, the maxim applies to actions {/) Act07i V. Blundell, \2 M. & W. 324; Chasinnorc v. Richards, 7 H. L. C. 349. This last case should be carefully distinguished from that of Ballard v. Tomlinson, 29 Ch. D. I15 : 54 L. J. Ch. 454, post, Part II, chap. 2. See also hereon Bradford. Corporation v. Pickles, (1895), I Ch. 145 ; 64 L. J. Ch. loi ; 71 L. T. 793 (since affirmed in House of Lords, 29th July 1S95). (g) Popplcwdl V. Hodgkinson, L. R. 4 Ex. 248. (A) As a recent instance of the rule see iSalaman v. Wariic7; 64 L. T. 598, where it was held that conspiracy and fraudulent repre- sentation do not give a right of action to persons indirectly affected and damaged thereby ; and that conspiracy is oidy actionable if entered into with the view of injuring the plaintiff's rights, and he thereby suffers damage. (i) Broom's Corns. 106 ; and see generally upon the subject discussed above, Broom's Coms. 70-107. (k) See Phillips v. Hovifray, 24 Ch. D. 439 ; 52 L. .7. Ch. 833 ; 32 W. R. 6. INTRODUCTION. ftK delicto, but not to actions ex contractu, though as to the latter we must usually except actions of breach of promise of marriage, for it has been decided that an action will not lie by personal representatives for breach of promise to marry the deceased unless direct damage to the deceased's personal estate can be shewn {l) ; nor can such an action be maintained against the personal representatives of a deceased person except under similar circumstances (iii). The true distinction as to the cases in which the maxim does and does not apply appears strictly to be not merely between actions ex contractu and actions ex delicto, but between rights affecting persons and rights affecting property. In subsequent pages the exceptions that have been in- troduced to the maxim, Actio personalis moritvr cum persond are duly referred to. Having, therefore, in these few remarks, endeavoured to introduce the student to the subject of common law, and the nature of the legal right in respect of which a person has a remedy, let us proceed to our first chief subject, viz. that of contracts. (?) CTiamherlain v. Williamson, 2 M. & S. 408. (m) Fin/au v. Chimey, 20 Q. B. D. 494: 57 L. J. Q. B. 247 ; 58 L. T. 664. OF THE DIFFERENT KINDS OF CONTRACTS. PART I. OF CONTRACTS. CHAPTER I. OF THE DIFFERENT KINDS OF CONTRACTS, THEIR BREACH, AND THE RULES FOR THEIR CONSTRUCTION. A CONTRACT may be defined as some obligation of a legal Definition of a ., , ,, c ITT •,• contract, and nature — either by matter ot record, deed, writing, or different divi- word of mouth — to do, or refrain from doing, some act. I'^^^j-alts. Contracts are usually divided as of three kinds, viz.: — 1. Contracts of record, i.e. obligations proceeding Records, '^ , . - specialties, from some Court of record, such as judgments, recog- and simple T 'i. contracts. nizances, and cognovits. 2. Specialties, i.e. contracts in writing, sealed and delivered. 3. Simple contracts, i.e. those not included in the foregoing, and which may be either by writing not under seal, or by mere word of mouth. Contracts may also be divided as to their nature Express and *' implied into — contracts. 1. Express contracts, i.e. those the effect of which is openly expressed by the parties ; and 2. Implied contracts, i.e. those which are dictated by the law ; as, for instance, if a person goes into a shop and orders goods, his contract to pay their proper value is implied. ■8 OF THE DIFFEREI^T KINDS OF CONTRACTS, Executed and Again, contracts are divided, with reference to the traet^ ^^^ *'°"' time of their performance, into — 1. Executed contracts, and 2. Executory contracts. Contracts of Having, therefore, three different divisions of con- technially""'^ tracts, let US proceed to consider each of them sepa- the most ratelv ; and as to the first division, the most important important. •' ^ • n kind of contracts, technically speaking, are contracts of record, they proceeding from some Court of record, but in a practical sense they may be set down as the least important, for, with the exception of judgments, they are not of constant occurrence, and even judg- ments, considered in the light of contracts simply, are not entitled to much discussion, although, considered in other ways, they are of great importance (a). As we have given as instances of contracts of record, judg- ments, recognizances, and cognovits, it will be well at the outset to have a clear understanding of each, and then consider the peculiarities of contracts of record generally, but yet mainly with reference to judg- ments, as being the most important kind of contracts of record that occur. Definition of a A judgment may be defined to be the sentence of the law pronounced by the Court upon the matter ap- pearing from the previous proceedings in the suit. It is obtained by issuing a writ of summons, on which the defendant either makes default, whereby judgment is awarded in consequence of such default, or the case is tried and ultimately judgment awarded (b). (a) Sir W. R. Anson, in his work on contracts (7th ed. p. S), writes of a judgment as being " unfortunately styled a contract of record in English law," and continues — "The phrase is unfortunate, because it suggests that an obligation springs from agreement which is really imposed upon the parties ah extra." (h) See Indermaur's Manual of Practice, Part II. chaps. 2, 5, 7. judgment THEIR BREACH, AND RULES FOR THEIR CONSTRUCTION. 9 A recognizance is an acknowledgment upon record J)utinition <.f n of a former debt, and he who so acknowledges such debt ' " to be due is termed the I'ecognizor, and he to whom or for whose benefit he inakes such acknowledgment is termed the recognizee. It is very similar to a bond, but whereas a bond creates a new debt, a recognizance is merely an acknowledgment upon record of an ante- cedent debt (e). A cognovit is an instrument signed by a defendant Deiinition of a in an action already commenced, confessing the plain- ° tift"s demand to be just, and empowering the plaintiff to sign judgment against him in default of his paying the plaintiff the sum due to him within the time mentioned in the cognovit (d). By i & 2 Vict. c. 1 10, it was pro- vided for the protection of ignorant persons, who might Essentials as , . . • 1 1 ^^ execution, be persuaded into executing cognovits, that they must be attested by an attorney (e), and this protection has been still further extended by 32 & 33 Vict. c. 62 (/), which provides that " after the commencement of this Act (g) a warrant of attorney to confess judgment in any personal action, or cognovit actionem, given by any person shall not be of any force unless there is present some attorney of one of the superior courts on behalf of such person expressly named by him, and attending at his request, to inform him of the nature and effect of such warrant or cognovit before the same is executed, which attorney shall subscribe his name as a witness to the due execution thereof, and thereby declare himself to be attorney for the person executing the same, and state that he subscribes as such attorney ; " and also (h), that " if not so executed it shall not be rendered valid by proof that the person executing the same did, in (c) Brown's Law Diet. 446. id) Ibid., 67. (e) All attorneys are now styled solicitors ; Jud. Act, 1873, sect. 87. (/') Sect. 24. (g) I St. January 1870. ih) Sect. 35. lO OF THE DIFFERENT KINDS OF CONTRACTS, Difference between a warrant of attorney and a coarnovit. Judges' orders by consent. fact, understand the nature and effect thereof, or was fully informed of the same." In this enactment it will be noticed that a warrant of attorney is men- tioned, being made subject to the same provisions as to execution as is a cognovit, and as the two are some- times confused by students, it may be well to point out that there is this difference between them, viz. that a cognovit is a written confession of some existing action, whilst a warrant of attorney is simply a power given to an attorney or attorneys to appear in some action commenced, or to be commenced, and allow judgment to be entered up. Cognovits and warrants of attorney require to be filed in the Central Office of the High Court of Justice within twenty-one days after execu- tion (i). There is a like provision as to judge's orders made by the consent of any defendant in a personal action, whereby the plaintiff is authorized forthwith, or at any future time, to sign or enter up judgment, or to issue or to take out execution (k) ; and it has been held that if the order is not so filed, any judg- ment signed thereon is void as against creditors, though it cannot be set aside on the application of the defendant (/). Of tlie pecu- liarities of contracts of record, par- ticularly judgments. T. Merger. Now as to the peculiarities of contracts of record generally, but mainly with reference to judgments. I. Being of the highest nature of all contracts, they Jmve the effect of merging either a simple contract or a contract entered into hy deed (a specialty). — It is a prin- ciple not only with regard to contracts but also estates, that a larger interest swallows up or extinguishes a lesser one. If a person has an estate for years, and afterwards acquires an estate in fee simple in the same (i) 32 & 33 Vict. 0. 62, s. 26. {k) Ibid., s. 27. (l) Gowan v. Wright, iS Q. B. D. 201 ; 56 L. J. Q. B. 131 ; 35 W. R. 297 ; Ex parte Hrown, re Smith, 20 Q. B. D. 321 ; 57 L. J. Q. B. 212 ; 36 W. R. 403. THEIR BUKACH, AND RULES FOR THEIR CONSTRUCTION. I I land and in the same right, the former estate for years is lost in the greater estate in fee (m); and so here, if there is an ordinary contract by word of mouth, in writing, or by deed, and judgment is recovered on it. the judgment merges the rights on the former con- tract, and the person's rights henceforth are on the new and higher contract, the judgment. Thus where Ex parte a mortgage deed contained a covenant by the mortgagor .vfj^/"'^''^" "^ for payment of the principal sum with interest at 5 per cent, per annum, and the mortgagee sued for the mortgage money and obtained judgment, it was held that the covenant was merged in the judgment, and that the mortgagee was as from the date of the judg- ment entitled only to interest on the judgment debt at 4 per cent., and not to the 5 per cent, under the covenant (7^). 2. TJicy have the effect of estopping the parties to 2. Est<.i.i.ei. them. — Estoppel has been defined as a term of law whereby a person is stopped or hindered from denying a matter already stated {0), and it is because of the high nature of contracts of record that whilst they re- main in existence they are conclusive, for no one can aver against a record, and this has been stated by Lord Coke, as follows : — " The Rolls being the records or memorials of the judges of the Court of record, im- port in them such uncontrollable credit and verity as they admit of no averment, plea, or proof to the contrary " (p) The leading authority on the point of estoppel by (m) The Jud. Act, 1873 (s. 25 (4)), however, provides that there shall not now be any merj,rer by operation of law only of an}' estate, the beneficial interest in which would not be deemed to be merged or extinguished in equity. (>i) Ex ■parte Fewings, re Sneyd, 25 Ch. U. 33S ; 53 L. J. Ch. 545 ; 32 W. R. 352. The previous decision of Poj)ple v. Sylvester (22 Ch. I). 98; 52 L. J. Ch. 54; 31 W. R. 116) was distinguished as being decided on the special wording of the covenant in that case. See also Arbuthnot v. BunsUal, 62 L. T. 234. (o) Brown's Law Diet. 211. See also ^o.s<, p. 16. (p) I Inst. 260. 12 OF THE DIFFKKEJS'T KINDS OF CONTKACTS, D lichens of Kingston's Case. matter of record is the Duchess of Kingston's Case (q), which shews that a judgment is only a conclusive estoppel where the same matter is directly involved in it, and not where it is only incidentally involved ; and also that, even although it might be otherwise a conclusive estoppel, yet that may always be avoided by shewing fraud or collusion (r). 3- As to consideration. 3. I'hei/ require no consideration. — This peculiarity results from the preceding one of estoppel ; the want of consideration can be no defence or objection to pro- ceedings on a judgment or other record, which, as we have seen, the party is estopped from denying. How- ever, with regard to a proof in bankruptcy, the fact that the debt relied on is a judgment debt is by no means conclusive, for the Court has here full power to inquire into the consideration thereof (s). 4. As to priority of payment. 4. A judgment has no 'priority in payment. — In the administration of an insolvent estate in equity, a registered judgment creditor of the deceased is en- titled to priority, which is an important advantage if the estate is insufficient to pay every one {t^. And though the Judicature Act, 1875 00> provides that the same rules shall prevail as to the respective rights (5) 2 S. L. C. 812 ; Bui. N. P. 244. See also Peareth v. Marriott, 22 Ch. I). 182 ; 52 L. J. Ch. 221 ; 31 W. R. 68 ; Cahill v. Fitzgibbon, 16 L. K. Ir. 371. (r) See also Wildcg v. Rusacll, L. R. i C. P. 722; National Bolivian Navigation Company v. Wilson, L. R. 5 App. Cases, 176 ; 43 L. T. 60 ; Concha v. Concha, 1 1 App. Cases, 541 ; 55 L. T. 522. As to the effect of a foreign judgment see In re Trufort, Traford \\ Blanc, 36 Ch. D. 600; 36 W. R. 163. (s) Ex parte Bonham, re Tolloanchc, 14 Q. B. D. 604; 54 L. .J. Q. B. 388 ; Ex parte Anderson, re Tollcmache, 14 Q. B. D. 606 ; 54 L. J. Q. B. 383 ; Ex parte Kibble, re Onslow, L. R. 10 Ch. D. 373 ; 44 L. J. Bk. 63 ; 23 W. R. 423 ; Ex parte Scaton, re Decrhurst, 60 L. J. Q. P.. 411; 64 L.T. 273. (t) And this advantage does not only apply to English judgments, but also to Irish judgments and Scotch decreets, if registered here, it being by 31 & 32 Vict. c. 54, s. I, provided that if registered here, they shall have the same force and effect as if original judgments of this country. (u) 38 & 39 Vict. c. 77, s. 10 (instead of sect. 25, sub-sect, i of the Judicature Act, 1873). THEIK BRKACH, AND RULES FOU TIIEIl; ('ONSTRUCTfON. 1 3 of secured and unsecured creditors as are iu force in bankruptcy, this does not in any way affect this point (v). Insolvent estates of deceased persons may, Administra however, now be administered in bankruptcy under vtTnt estates in the provisions of the Bankruptcy Acts, 1883 and t^af'^^rni'tcy. I 890 (x), and in that event the rules of bankruptcy generally must prevail so far as they are possibly applicable (y). 5. A judgment constituted a charge on the lands 0/ 5. As to chai-i- the judrjment debtor (z). — This is a peculiarity of the ^"° ^''"'^''' past, and the following is a short summary of the past and present laws upon the subject {a) : — By 13 Ed. I, c. 18, half a judgment debtor's land could be taken in execution under a writ of elegit. By 29 Car. 2, c. 3, sect. 10, execution could also be issued to the above extent on judgments entered up against a cestui que trust of freeholds, provided they were vested in a trustee in fee simple, and he was duly seised of them. By I & 2 Vict. c. I 10, a judgment was made a charge upon the whole lands of a judgment debtor, of whatever nature, but judgment was not to affect purchasers until registered in the name of the debtor. (v) In re the Withernsea Brickworks Compan;/, L. R. 16 Ch. D. 337 ; 50 L. J. Ch. 185 ; 29 W. R. 178. In re Maggi, Winehome v. Winehouse, 20 Ch. D. 545 ; 51 L. J. Ch. 560 ; Smith v. Morgan, L. R. 5 C. P. D. 337 ■> 49 Ij- J- C. P. 410 ; Inderrnaur's Manual of Equity, 109, i lo. (x) 46 & 47 Vict. c. 52, s. 125 ; 53 & 54 Vict. c. 71, s.'2l. {y) See hereon Inderrnaur's Manual of Equity, ill, 112; In re Gould, Ex 'parte Official Rccr., 19 Q. B. D. 92 ; 56 L. J. Q. B. 333 ; 35 W. R. 569 ; 56 L. T. S06. (:) This was extended to Irish judgments and Scotch decreets if registered under 31 & 32 Vict. c. 54. (a) The law of judgments as affecting lands belongs more properly to the subject of conveyancing and real property, and, for fuller in- formation than is contained in a few remarks above, the student is referred to the dissertations in Prideaux's Conveyancing, vol. i. pp. 143-148. 14 OF THE DIFFEKENT KINDS OF CONTRACTS, By 2 & 3 Vict. c. 1 1, all judgments, to so bind, were required to be re-registered every five years. By 23 & 24 Vict. c. 38, no judgment to be entered up after the passing of that Act (July 23, i860) was to affect any lands, unless a writ of execution was issued and registered and put in force within three calendar months from the time of registration. By 27 & 28 Vict. c. 112, it is provided that no judgment to be entered up after the passing thereof (July 29, 1864) shall affect any lands until the same shall have been actually delivered in execution by virtue of a writ of elegit, or other lawful authority — that is to say, equitable execution, which is obtained by getting an order appointing a receiver. And now it is further provided by 51 & 52 Vict. c. 5 i (h), that no such writ or order shall bind the lands in the hands of a purchaser for value unless it lias been duly registered at the Land "Registry Office. 6. As to proof. 6. Thei/ prove themselves — which means that when necessary to prove a contract of record the mere pro- duction thereof is sufficient proof, and this is always their proper mode of proof, so that when there is an issue of mil tiel record (no such record), either the record itself must be produced, or it may be proved by exemplification under the great seal, or by an examined or sworn copy {<■). The two remaining kinds of contracts under this division are specialties, and simple contracts, and these are of ordinary, practical, and constant occurrence, and therefore of very much more importance to the student Specialty than contracts of record. A specialty, or contract cmtnic s.. under seal, has been styled " the only true formal (6) Sect. 6. This pruvision reverses the decision In re Pope, 17 Q. B. D. 743 ; 57 L. J. Q. B. 522. (e) Powell's Evidence, 350. THEIK BREACH, AND RULES FOR THEIR CONSTRUCTION, 1 5 contract because it derives its validity from its form alone, and not from the fact of agreement, nor from the consideration which may exist for the promise of either party " (d), and it is termed a deed because of the peculiar solemnities attending its execution, it being not only signed (e), but also sealed and delivered, whilst a simple contract is either oral, or at most in writing not under seal ; and it is from the point of the supposed additional solemnities attending the execution of deeds or specialties, that we may trace Distiuctions the numerous distinctions which exist between them between sjtecialties on the one hand and simple contracts on the other. -hkI simple These distinctions are mainly as follows : — I. As to the execution. — Here, as just stated, the i. As to essential formalities to be observed on the execution *^^®''"'^'°"- of a deed are sealing and delivery, whilst a simple contract may be even by word of mouth, and if writ- ing is used, signature only is necessary. One of the essentials, too, of the deed being delivery, a person Escrow. may execute a deed as an escrow, i.e. " so that it shall take effect or be his deed on certain conditions " (/), by delivering it to some third person, and then it will not take effect until the happening of the condition, though on the condition being performed it will relate back to the original date of execution. A deed cannot be de- livered as an escrow to the other party to it, it must be to some third person, but it may be delivered to a solicitor acting for all parties (g). iiiertrer. 2. As to merger. — The principle of merger has 2. As to already been explained (h), and it may be defined as an operation of law whereby a security or estate is swal- lowed up or lost in a greater. It has already been (d) Anson's Contracts, 51. (e) There is some doubt whether signing is actually necessary to the validity of a deed generally. (/) Chitty on Contracts, 4. ig) Millershi-p v. Brooke, 5 H. & N. 797. (/*) Ante, pp. 10, II. 1 6 OF THE DIFFERENT KINDS OF CONTRACTS, I remarked that the effect of a record will be to merge ^ any contract respecting the same matter not by record, because of its higher nature ; and so here, a deed, though of a technically less important nature than the record, and liable to be merged in it, j'-et in its turn, being more important than a simple contract, it will cause a merger of that. 3. As to 2. As to estoppel. — This doctrine has already been es oppe . touched upon in its bearing on contracts of record (i) ; but, in addition to the definition given there of it, it may be well to note here Lord Coke's definition, which is perhaps a better one when the term is applied to estoppel otherwise than by matter of record. His definition of it is, " Where a man is concluded by his own act or acceptance to say the truth " (A*). It has been noticed that a record will estop the parties to it and those claiming under them, and so in a deed the doctrine of estoppel applies, though generally speaking it does not in a simple contract, for there statements made are merely strong evidence against the parties. Estoppel by Thus, if a man executes a deed, stating or admitting in that deed a certain fact, he is precluded from denying it, the reason being the solemnity of the deed ; whilst in a simple contract the person entering into it may show the contrary of what he has admitted in it. But in discussing the doctrine of estoppel, what was Collins V. decided in the leading case of Collins v. Blantern (l) must be noticed, viz. that though a person is estopped from denying what he has stated in a deed, yet he may set up the illegality or fraud of the instrument. In that case the plaintiff sued on a bond executed by certain parties, of whom the defendant was one, the (i) Ante, pp. 11, 12. (/t) Co. Litt. 352a. See also Simm v. Anglo- Amcrkan Telegraph Co., 5 Q. B. D. 202 ; 49 L. J. Q. B. 392 ; 2S W. R. 290, where the doctrine was further explained by L. J. Bramwell, who remarked that an estoppel may be said to exist where a person is compelled to admit that as true which is not true, and to act upon a theory which is contrary to truth. (/) I'S. L. C. 369 ; 2 Wilson. 341. deed. Rl miter n. THEIR BKEACH, AND RULES FOR THEIR CONSTRUCTION. 1 7 obligation of which was i^/OO, conditioned for payment of £^ 5 o. The defendant pleaded the following facts : Certain parties were prosecuted by one John Rudge, and pleaded not guilty, and according to arrangement, the plaintiff gave his promissory note to the prosecutor, John Rudge, he to forbear further prosecuting, and as part of the arrangement, the bond on which the plaintiff sued was executed to indemnify hira. Now the facts shewed illegality in the whole matter, for it was the stifling of a criminal prosecution ; but had the doctrine of estoppel applied here, the defendant would have been precluded fi'om setting it up. It may be noticed on this point of estoppel, that if a person in the body of a deed admitted having received the consideration money, at law he was estopped from setting up that he had not received it ; but in equity he might always have done so, otherwise the doctrine of the vendor's lien for unpaid purchase-money could not well have existed. Now, as the Judicature Act, 1873 (m), pro- vides that where the rules of law and equity clash, the latter shall prevail, the consequence is, that in such a case a person is now always able to do what he could, as above stated, have only formerly done in equity. Estoppel, however, besides being by record or deed. Estoppel in may also in some cases be in ^ais, i.e. by the conduct^ of the parties ; e.g. where an infant, having made a lease, accepts rent after he comes of age, he will be estopped from denying its validity (n). Many circum- stances may produce estoppel of this kind, and as a practical example of it may be noticed the fact that a bailee is ordinarily estopped from denying the title of his bailor (0). (m) Sect. 25 (11). {n) See hereon as to the effect of 37 & 38 Vict. c. 62, post, p. 237. (o) Rogers v. Lambert, 24 Q. B. D. 573 ; 59 L. J. Q. B. 259 ; 62 L. T. 664. And see, as further instances of estoppel in pais. Roe v. Mutwil Fund Loan Association, Limited, 19 Q. B. D. 347 ; 56 L. J. Q. B. 145 • 3SW. R. 723. 1 8 OF THE DIFFERENT KINDS OF CONTRACTS, 4. As to 4. As to consideration. — Tlie consideration is the price or motive of a contract, and is either good or valuable. Definition of A Valuable consideration may be defined as some benefit cou'sideration. to the person making the promise, or a third person by the act of the promisee, or some loss, trouble, in- convenience to, or charge imposed upon the person to whom the promise is made (^9). It is an essential and unflinching rule that all simple contracts require a valuable consideration; if they have no consideration, or a merely good consideration, such as natural love and affection, they will not be binding, and no action will lie for their breach (q) ; whilst a deed will be perfectly valid and binding with a merely good con- sideration, or with no consideration at all (r). This distinction plainly arises from the fact of the additional solemnity and importance of a deed. A voluntary deed is not in every respect as good as a deed founded on valuable consideration. It must not, however, from this be taken by the student for granted that a voluntary deed is in every respect as good as a deed founded on valuable con- sideration. All that is meant is, that as between the parties it is no objection to the validity of a deed, and consequently no answer to an action brought upon it, that there was no consideration for the benefits con- ferred or the obligations entered into by it, as it would be in the case of a simple contract. But even a deed entered into without valuable consideration may pos- siblv be affected on account of its want of consideration. 13 Eliz. c. s. I , The statute 1 3 Eliz. c. 5 provides that all gifts and conveyances of either chattels or land, made for the purpose of defeating, hindering, or delaying credi- tors, are void against them unless made hond fide upon {p) This definition is gathered from what is stated as to the sufficiency of the consideration iu Chitty on Contracts, 21, 22. (q) Lampleigh v. Braithicaite, I S. L. C. 163 ; Hobart, 105. (r) An important exception to this rule arises in the case of contracts in restraint of trade, which, even though by deed, must have a valuable consideration, ^ee post, pp. 293-295. THEIR BREACH, AND RULES FOR THEIR CONSTRUCTION. 1 9 good (which means here valuable) consideration, and bo7id Jide to some person without notice of the fraud. The mere fact of any conveyance or assignment being voluntary will not necessarily render it bad under this statute ; but the fact of its voluntary nature will cause suspicion to attach to it, and every such volun- tary instrument is therefore liable to be set aside under this statute (s), 2. By 27 Eliz. c. 4, it was provided that all volun- 27 Eliz. c. 4. tary conveyances of land should be void against subse- quent purchasers for valuable consideration with or without notice ; the effect of which was that although a person might make a perfectly good voluntary con- veyance to another of his land, yet if he atterwards conveyed that land for value, even although the latter person knew of the prior voluntary conveyance, he would take in preference to it (t). This statute is, however, now practically repealed by the Voluntary Conveyances Act, 1893 00- 3. By the Bankruptcy Act, 1883 (x), any voluntary Bankruptcy settlement is void if the settlor becomes a bankrupt ''^' ^ ^' within two years ; and if he becomes bankrupt after that time, but within ten years, it is also void, unless the parties claiming under such settlement can prove that the settlor was at the time of making it able to pay all his debts without the aid of the property com- prised in such settlement (?/), and that the interest of the settlor in such property had passed to the trustee of such settlement on the execution thereof.(5!) (s) See further as to fraudulent dispositions under the statute 13 Eliz. c. 5, 2)ost, pp. 2S7-2S9. (t) See further hereon Indermaur's Manual of Equity, 37-39. (u) 56 & 57 Vict. c. 21. [x) 46 & 47 Vict. c. 52, s. 47. (y/) As to the meaning of these last words see Ex parte Russell, Re Buttericorth, 19 Ch. D. 588 ; 51 L. J. Ch. 621 ; 46 L. T. 113. (3) As to the effect of this enactment see Sanguinetti v. Stuchey's Banking Co., 1895, i Ch. 176 ; 64 L. J. Ch. 181 ; 71 L. T. 872. 20 OF THE DIFFERENT KINDS OF CONTRACTS, 5. As to 5. As to limitation. — A simple contract is barred after six years (a) ; a deed, after twenty years (&). 6. As to 6. As to their extent. — A deed, if the heirs were *^^ ^" ■ bound, and the heir had assets by descent, bound him, whilst a simple contract did not ; so that this distinction between a specialty and a simple contract was for- merly one of considerable importance, for a simple con- tract creditor had no right to come upon the real estate 3 & 4 Will. 4, descended to the heir for payment of his debt. By '^' ^°^' 3 & 4 Will. 4, c. 104, this anomaly was done away with, that statute providing that real estate should be liable for payment of simple contract as well as specialty debts, provided, however, that creditors by specialty in which the heirs were bound should be paid first. This 32 & 33 Vict, distinction has also now been done away with by 32 & '^' '^ ' 33 Vict. c. 46, which provides that all creditors, as well by specialty as by simple contract, shall be treated as standing in equal degree. 7. Astodis- 7, As to their discharge. — Though a simple contract ° ' may be discharged in various ways {e.g. by accord and satisfaction) (c), a deed, speaking generally, can at law only be discharged by an act of as high or of a higher nature (cZ). But in equity a deed might some- times have been put an end to by a new parol agree- ment, and it must be remembered that the rules of equity now prevail in all cases (e). This last distinc- tion, therefore, with the previous one, may be put down as of little practical importance, however valuable they both may be considered by the student as points in the history of the law. With regard to the division of contracts into those (a) 21 Jac. I, c. 16. (6) 3 & 4 Will. 4, c. 42. See as to limitation generan}% post, pp. 269- 276. (c) As to whicli, .see post, pp. 26S, 269. {d] Anson's Contracts, 2S0. \e) Jud. Act, 1873, sect. 25 (11). THEIR BREACH, AND RULES FOR THEIR CONSTRUCTION. 2 1 expressed and those implied, it is not necessary to say Express and much, as the very names, indeed, point out what is tracts!^ meant ; but it may be useful to enumerate, as instances, fi few cases in which a contract will be implied. If instances in any trade or business there is some well-known convicts'. and established usage or custom, and two persons enter into any contract which does not exclude such usage or custom, and contains nothing antagonistic to it, the usage or custom will be implied to be part of their contract : so if between two persons there has been a practice in past 3'ears for interest to be paid on balances between them, a contract will continue to be implied to that effect until something is said or done to the contrary (/). Again, if a landlord gives his tenant notice to quit or else pay an increased rent, and the tenant says nothing, but continues to hold on, his contract to pay such increased rent will be implied ; and if any deed or other instrument contains a recital, or any words shewing a clear intention to do some act, a contract to do it is im- plied (g). And it has been recently laid down in general terms, that whenever circumstances arise in the ordinary business of life in which, if two persons were ordinarily honest and careful, the one of them would make a promise to the other, it may properly be inferred that both of them understood that such a promise was given and accepted {h). An express contract is, however, naturally more cer- Expressum tain and definite than an implied contract, which indeed tucitum. can only exist in the absence of an express contract, the maxim being Expressum facit cessare taciturn. Again, on the third division of contracts into those Executed ajul .11,1 , • , . , executory cou- executed and those executory, it is necessary to say tracts. (/) See Chitty on Contracts, 59. (g) See Knight v. Gravesend, <£c., 2 H. & N. 6. (h) Per Lord Esher (M. II.) in Ex parte Ford, In re C'happcll, 16 Q. B. D. 307 ; 55 L. J. Q. B. 406. 22 OF THE DIFFERENT KINDS OF CONTRACTS, but little, the words almost explaining what is meant. An executed contract is one in which the act has been done, as if a contract is made for the sale and pur- chase of goods, and the price paid and the goods handed over ; an executory contract is one in which the act contracted for is to be done at some future time, as if a person agrees to supply another with certain goods on the arrival of a ship in which they are. Contracts may be entirely executed or entirely executory, or in part executed and in part executory (i). Breach of executory CO tract. On an executory contract one important point may be usefully noted. In such a contract, of course, it must be apparent that, generally speaking, no action can be brought for its breach until the day arrives for its performance ; but it has been decided that where a person before the day declares that he will not perform his contract, or renders himself incapable of perform- ing it, the action may be brought immediately without waiting for the future day (Jc). Consequences Where a valid contract has been entered into between the breach of the parties, and there is a breach of it, certain con- a contract. sequences flow from that breach. Looking at judg- ments as contracts of record, if a judgment is not complied with by the party against whom it is given, there are various means pointed out by law for obtain- ing satisfaction of it, the chief being by execution (/), In the case of a breach of a specialty or a simple con- tract a new obligation will in every case arise, a right of action conferred upon the party injured by the breach, that is to say, an action has to be brought against the person committing the breach, and damages (i) As to distinctions between contracts executed and executory, see Campbell on the Law of Sale of Goods, 2. (k) Hochstcr V. De la Tcnir, 2 ¥A\. & Bl. 678 ; Frost v. Knviht, L. R 7 Ex. 1 1 1. See, however, Johnatonc v. Milling, 16 Q. B. D. 460 ; 55 L. J. Q. B. 162 ; 34 W. R. 238 ; 54 L. T. 629 ; and post, ch. viii. pp. 244-247. (I) As to the different modes of enforcing a judgment, see Inder- maur's Manual of Practice, 148-165. THEIR BREACH, AND RULES FOR THEIR CONSTRUCTION. 23 are awarded in such action for the breach, such damages being estimated by a jury in accordance, as far as can be, with the settled principles of what is the proper measure of damage, a subject which will be discussed later on in the present work {in). In some cases, also, relief may be obtained beyond mere damages, e.g. in an action for breach of a contract to deliver specific goods sold, a plaintiff may, under the provisions of the Sale of Goods Act, 1893 (^Oj obtain an order for the delivery to him of the specific goods themselves (0). In some cases, also, the breach of a contract by one of Forfeiture of the parties may cause him to forfeit his right to any com- p^iisatk)ii?"' pensation for what he has done before breach. Thus, if a servant hired by the month wrongfully leaves, or is discharged on account of his misconduct, in the middle of a month, he will lose the whole month's wages (p). The last subject to be considered in the present Rules for the chapter is that of the rules for construction of contracts, contracts. a matter of considerable importance. In the first place, it must be observed, that while the jury decide on questions of fact, it is for the Court to put the correct construction on any instrument ; and, to ensure uni- formity in construction as far as possible, certain rules have been framed and handed down from time to time. Tliese rules are stated by Mr. Chitty in his work upon Contracts very fully {q), and the most important of them are as follow : — I. Every agreement shall have a reasonable constructioyi i- Agreements ,. , ,7 • , ,• /■ ,7 .• •/. tobe construed according to the intention oj the parties : e.g. it a person reasonably, borrows a horse, it will be considered a part of the agreement that he shall feed it during the time it (m) As to tbe measure of damages, see post, Part iii. ch. i. (n) 56 & 57 Vict. 0. 71, s. 52. (0) See pust, Part iii. ch. i. {p) See hereon also post, ch. vi. p. 216. (q) See Chitty on Contracts, 126-164, from which pages the following remarks on the construction of contracts are mainly gathered. 24 OF THE DIFFERENT KINDS OF CONTRACTS, remains in his possession. This is a great and important rule of construction, but upon it two points must be borne in mind : " First, that it is not enough for a party to make out a possible intention favourable to his view, but he must shew a reasonable certainty that the in- tention was such as he suggests ; and, secondly, that all latitude of construction must submit to this restric- tion, viz. that the words and language of the instru- ment will bear the sense sought to be put upon them ; for the Court cannot put words in a deed which are not there, or pat a construction on the words of a deed directly contrary to the plain sense of them " (r). 2. Agreements 2. Agreements shall he construed liberally, e.g. the iibeniUy. word " men " used in a contract may often be held to include both men and women (.s). 3. Agreements 3. Agreements shall he construed favouraUg ; which fiivourabiy. means that such a construction shall be put that, if possible, they may be supported : thus, if on an instru- ment it is possible to put two constructions, one of which is contrary to law and the other not, the latter shall be adopted ; and it is upon this principle that words sometimes have diff'erent meanings given to them : thus the word "from" is 2') rim d facie exclusive, but it always depends on the context ; and the words "on" or " upon" may mean either before the act to which it relates, or simultaneously with the act done, or after the act done ; and the word " to " may mean " towards " {t). 4. Words are to he understood in their i^lain, ordinary, (r) Chitty on Contracts, 12S. (s) See, as to the liberal construction of certain words in statutes, the Interpretation Act, 18S9 (52 & 53 Vict. c. 63), and see also the Con- veyancing Act, 1 88 1 (44 & 45 Vict. c. 41), sect. 66, which provides that " in the construction of a covenant or proviso, or other provision implied in a deed, by virtue of this Act, words importing the singular or plural number, or the masculine gender, shall be read as also importing the plural or singular number, or as extending to females, as the case may require." (0 Chitty on Contracts, 79. THEIR BREACH, AND RULES FOR THEIR CONSTRUCTION. 25 and iwpular sense ; but if words have by any usage of 4- Words are trade or custom obtained a particular signification, then stood h? their that meaning will generally be put upon them. ordinary " '^ ./ X r nieaiiiiig. 5. The construction shall he put iqwn the entire instru- 5. The con- 7nent, so that one part may assist another ; and it is upon be on tire'^'"'^ this rule that, to further the evident intention of the ^"*"'« instru- _ . nient. parties, words used in a contract may be transposed ; and again, that where there are general words follow- ing after certain particular words, they will be con- strued as only ejusdem generis with the particular words. This rule also has to be taken subject to the maxim Falsa deinonst'i-atio 7ion nocct, the meaning o^ Falsa dcmon- which maxim has been well stated to be, " that if there Si''''"" is in the former part of an instrument an adequate and sufficient description shewing with convenient certainty the subject-matter to which it was intended to apply, a subsequent erroneous addition will not vitiate that description " {v). As regards differences between the operative words used in a deed and the recitals, the Recitals, following rules have been laid down: — ( i .) If the recitals are clear, but the operative words ambiguous, the re- citals govern. (2.) If the recitals are ambiguous, but the operative words clear, the operative words govern. (3.) If the recitals and the operative words are both clear, but are inconsistent, the operative words govern (x). 6. A contract is to he construed according to the law 0/6. Tiie icx lod the country where made, except when the jjnrties at the preS uuies!" time of maJcing the contract had a view to a different *''« Parties •*' made their country. — From this it follows that if a contract is contract with made anywhere out of England, and an action is aLTim^^ brought on it here, it will ordinarily be necessary to '="""^^y- give evidence to shew what the law of the place where it was made is as to it {y) ; and with regard to the last (m) Chitty on Contracts, 86. (x) Ex -parte Bawes, In re Moon, 17 Q. B. D. 275 ; 34 W. R. 752 ; 55 L. T. 114. [y) Per Lord Eldon in Sma'e v. Roberts, 3 Esp. 163, 164. 26 OF THE DIFFERENT KINDS OF CONTRACTS, part of this rule, what is meant is, that although the lex loci contractus generally applies, yet if the parties have in contemplation, at the time, the performance of the contract in another country, then the law of that country will apply, e.g. if a bill of exchange is executed here but made payable abroad (z). However, the rule altogether only primarily holds good, and the Court must look at the circumstances of each contract, and consider, having regard to the nature of the contract, and the other circumstances of the case, what law it is to be governed by (a). But ill bring- And notwithstanding the rule that the lex loci con- the'iex'iuci fori fractals govems, yet, although a contract is made governs. abroad, as regards the proceedings to enforce it, the lex loci fori (that is, the law of the country where the action is brought) governs ; so that, for instance, al- though a contract is made abroad in a country where the period of limitation for bringing the action is diffe- rent to what it is here, yet, if the action is brought here, our Statute of Limitations will bind. Again, a contract may be made abroad, and by the law of the country where made may, perhaps, not be required to be in writing, although here it may be otherwise by reason of the provisions of the Statute of Frauds. Yet if such a contract is made abroad without writing, and an action is brought here upon it, such action cannot succeed, the Statute of Frauds dealing with matter of procedure only — that is, not invalidating the contract, but requir- ing the evidence of writing (b). 7. Of two re- pugnant clauses the first is to be received. 7. If there are tico repugnant clauses in a contract, the first is the one to he received (c). (r) See also hereon Jacobs v. Credit Lyonnais, 12 Q. B. D. 589 ; 53 L. J. Q. B. 156; 32 W. R. 761. (a) Re Missouri Steamship Co., 42 Ch. D. 321 ; 58 L. J. Ch. 721 ; 61 L. T. 316 ; Hamlyn v. Talisler Distillery (iSg^), A. C. 202 ; 71 L. T. I, (b) Leroux v. Bronn, 12 C. B. Soi. (c) It may be noted that the contrary is the rule in the case of a will ; THEIR BREACH, AND RULES FOR THEIR CONSTRUCTION. 2/ 8. The construction shall he taken most strongly ^. The con- ,,7 . ,, ij.j.1"* 1 i. struction is to against the grantor or contractor ; but this is a rule not ^g taken to be resorted to until after all other rules of con- against the grantor. struction fail ; and in some cases it will not apply at all — thus it does not apply against the crown. g. Parol evidence is never admissible to vary or con- 9- rarol evi- tradict a ivritten contract, hut it is admissible to explain missible to i)i the case of a lateyit, though not in the case of a patent ^v°j!itten'°*^ ^ ambiguity. — A patent ambiguity is one appearing on contract, the face of the instrument ; a latent ambiguity is one not so appearing, but raised by extraneous evidence ; and the distinction between these two cases as to the admissibility of parol evidence has been so well stated by Lord Chief- Justice Tindal, that the author cannot refrain from here giving his remarks, although some- what lengthy. His lordship stated the matter as follows : — " The general rule I take to be that where the words The distinc- p •. . • L 1 n c !••,• tion as to the or any written instrument are tree irom ambiguity inadmissibility themselves, and where external circumstances do not '!^ P'*'"'.*^ ®J'' ' _ _ dence in the create any doubt or difficulty as to the proper applica- case of a patent „ / , 1 . , T 1 • and a latent tion 01 those words to claimants under the instrument, ambiguity, as or the subject-matter to which the instrument relates, chief -Justice such instrument is always to be construed according to Tindal. the strict, plain, common meaning of the words them- selves ; and that, in such case, evidence dehors the instrument for the purpose of explaining it according to the surmised or alleged intention of the parties, is utterly inadmissible. The true interpretation, however, of every instrument being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has always been considered an exception, or, perhaps, to speak more precisely, not so much an exception from, as a corollary to, the for, as a subsequent will revokes a former, so a later clause will have effect over an earlier. OF THE DIFFERENT KINDS OF CONTRACTS, general rule above stated, that where any doubt arises upon the true sense and meaning of the words them- selves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument itself ; for both reason and common sense agree that by no other means can the language of the instrument be made to speak the real mind of the party. Such investi- gation does of necessity take place in the interpre- tation of instruments written in a foreii^n langruasre : in the case of ancient instruments ; in cases where terms of art or science occur ; in mercantile contracts, which in many instances are in a peculiar language employed by those who are conversant in trade and commerce ; and in other instances in which the words besides their general common meaning, have acquired, by custom or otherwise, a well-known, peculiar, idiom- atic meaning, in the particular county in which the party using them was dwelling, or in the particular society of which he formed a member, and in which he passed his life " ((/). When a contract has once been reduced into writing, evidence cannot be given to show that the parties at the time agreed orally that some other term or stipulation should be part and parcel of the contract, for to admit any such evidence would be in effect to vary the written instrument {e). If parties hav^e made an executory contract which is to be carried out by a deed which is afterwards executed, the real complete contract is to be found in the deed, and the parties have no right to look at the contract, althoufrh it is [d) Shore v. Wilson, 9 C. & F. 565-567. (e) Goss V. Lord Nwjcnt, 5 B. & A. 58 ; Stott v. Fnirlamb, 62 L. J. Q. B. 420 ; 48 L. T. 574 ; Leduc v. Ward, 20 Q. B. D. 475 ; 57 L. J. Q. B. 379 ; 58 L. T. 90S. Evidence which does not contradict a written contract, but shews what was the subject-matter, is admissible (Clarke V. Coleman, W. X. (1S95) ^'4 '< Law Students' Journal, August 1S95, p. 168). THEIR BIIEACH, AND RULES FOR THEIR CONSTRUCTION. 29 recited in the deed, except for the purpose of constru- ing the deed itself ; it must not be looked to for the purpose of enlarging, or diminishing, or modifying the contract which is to be found in the deed itself (/). In addition to the foregoing rules, it may be well Expressum to refer to a few other points on the construction of^^cLm?"'*^ contracts. In mentioning the subject of implied con- tracts, we have already stated that where there is some well-known and established usage or custom in a trade, persons may be taken in their contract to have had that in view at the time ; and a contract may be construed on that footing, provided, of course, that the custom or usage does not clash with the contract ; for it is an imperative principle of construction that when- ever there is an implied contract, and the parties have also expressly agreed on the point, the maxim JExpres- suin facit cessare taciturn will have effect {(j). When a contract is to be completed by a certain As to when day, the rule at law formerly always was that time esse'^,ceofV*' was of the essence of the contract ; but in equity it contract. was never so, unless expressly so stipulated, either at the time of the contract, or by notice given after- wards (Ji), or it appeared to be so intended from the nature of the property, e.g. where a reversion was being sold, as it might at any moment, through the falling in of the life estate, become an estate in possession. The Judicature Act, 1873 {i), however, now provides that stipulations as to time shall receive in all courts the same construction and effect as they would have (/) Legcjott V. Barrett, 15 Ch. D. 306 ; 28 VV, R. 962 ; 43 L. T. 641. {g) Ante, p. 21 ; and see hereon Wigglesivorth v. I)aUison. i S. L. C. 569 ; Dougl. 201 ; Johnson v. liayllon, 7 Q. B. D. 438 ; 50 L. J. Q. B. 735 ; 45 L- T. 374- (A) However, a party to a contract is not entitled in every case by giving notice to make time of the essence of the contract ; there must have been some unreasonable delay by the other party. Green v. Serin, 13 Ch. D. 589 ; 49 L. J. Ch. 166. (i) Jud. Act, 1873, s. 25 (7); Indermaur's Manual of Equity, 236. 30 OF THE DIFFERENT KINDS OF CONTRACTS. theretofore received in equity. But notwithstanding this enactment, in mercantile contracts stipulations as to time are still of the essence of the contract (k), subject to this, that with regard to contracts for the sale of goods, it has now been provided that, unless a different intention appears from the terms of the con- tract, stipulations as to time of payment are not deemed to be of the essence of the contract ; and whether any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract (/). Meaning of the term " month." The term " month " in a contract signifies a lunar month {7n), except in the case of mercantile contracts, e.g. bills of exchange, when it signifies a calendar month. In a statute passed before 1851, it means, prirnd facie, a lunar month, but after that time a calendar month (n). (k) Renter v. Sola, 4 C. P. D. 249 ; 48 L. J. Q. B. 492. \l) 56 & 57 Vict. c. 71, s. 10. [m) Hulton v. Broivn, 29 W. R. 928 ; 45 L. T. 343. {11) 52 & 53 Vict. c. 63, s. 3. OF SIMPLE CONTRACTS. 3 1 CHAPTER 11. OF SIMPLE CONTEACTS, AND PARTICULARLY OF CASES IN WHICH WRITING IS REQUIRED FOR THEIR VALIDITY. A SIMPLE contract may be defined as an agreement Definition of a relating to some matter, and either made by word of tr'act.^ ''°''" mouth or by writing not under seal ; and such contracts have been said to be called simple because they subsist by reason simply of the agreement of the parties, or because their subject-matter is usually of a more simple or of a less complex nature (a). Simple contracts have four great essentials, which are — (i) Parties able to Four essentials contract; (2) Such parties' mutual assent to the con- f,Vc'tT'^ *""" tract ; (3) A valuable consideration ; and (4) Something to be done or omitted which forms the object of the con- tract, and which must be neither illegal or immoral (&). There are in certain cases other requirements, and particularly writing is necessary in some cases, as will presently be shewn ; but in these cases the form of writing is not generally required to give efficacy to the contract, as is the case as regards a deed, but as evidence of its existence. Firstly, then, as to the parties to contract. As a Generally general rule, all persons are competent to contract, for jjersons^ue the law presumes this until the contrarv is shewn : co"'petent to . . . , -^ ' contract. but inability to contract is liable to be shewn in numerous cases, and it will be found that in some cases the incompetency to contract is absolute, in others only (o) Brown's Law Diet. 493. (6) Chitty on Contracts, 9, 10. 32 OF SIMPLE CONTRACTS, AND CASES IN WHICH limited, in some the contract is of no effect at all, in others only so with regard to the incompetent party. Cases of in- The chief cases of incompetency to contract, either contract"''^ ^° entire or limited, may be stated to be in the case of infants, married women, persons of unsound mind, intoxicated persons, persons under duress, and aliens ; and as contracts with all these persons ai*e discussed in a subsequent chapter, nothing further need here be remarked as to them (c). A person not Only a party to a contract can sue thereon, and a contract c.'u)- person taking a benefit under it, but not a party to it, not sue on it. Q^j^not sue, unless indeed there is a provision in an Act of Parliament enabling him to do so (d), or unless the circumstances are such that he is entitled to say that he is a cestui que trust of the benefit of the contract (e), or unless he is an assignee of a party to the contract, and thus entitled to stand in his shoes. There must be Secondly, as to the mutual assent, it is essential of\iie parties, that both the parties should agree to exactly the same thing ; there must be mutuality in the contract, or there can be no contract at all (/) ; thus if there is a direct offer on the one side, and direct and unequi- vocal acceptance on the other of exactly the same thing, then there is a perfect contract ; but if the acceptance is in any way conditional, or introduces any fresh term of stipulation, then there is no complete contract, unless that fresh stipulation is in its turn directly acceded to by the other contracting party {g). But even although there is an offer and a direct accept- (c) See fost, chap. vii. (fZ) In re Rothcrham Alum and Chemical Co., 25 Cli. D. in ; 53 L. J. Ch. 290; 32 W. R. 131. (c) GamUi V. Gandy, 30 Ch. D. 57 ; 54 L. J. Ch. 1154 ; 33 W. R. 803 ; 53 L. T. 306. (/) Jordan v. Norton, 4 M & W. 155. \g) Foide v. Freeman, 6 Ves. 351 ; IFmn v. BnU, 7 Ch. D. 29 ; 47 L. J. Ch. 139 ; Hussey v. Horn-Payne, 4 App. Cas. 311 ; 48 L. J. Ch. 846 ; Hawkestoorth v. Chaffey, 55 L. J. Ch. 335 ; 54 L. T. 72. WKITING IS REQUIRED FOE THEIR VALIDITY. 33 aace, it sometimes happens that no contract is produced thereby, for evidence may be given of extraneous facts which shew that the parties did not in fact mean to be bound. Thus, where matters generally are under dis- cussion, and then there is a bare offer to sell for so much, and an acceptance, and afterwards on further discussion as to payment, and other terms, the parties disagree ; here the fact of other matters having been at the time under consideration, and there having been subsequent negotiations with regard thereto, shews that there was in fact no concluded contract {h). But if, in fact, no other terms were under consideration, and there was a simple offer and a direct acceptance, the circumstance that the parties afterwards entered into further negotia- tions cannot alter the fact that a concluded contract has been actually made {i). Where it is necessary, to satisfy the Statute of What is neces- Prauds, that the contract should be in writing, there iTha* contract is also another point to be observed if it is desired to f™°^ different instruments. make out a contract from different instruments, and that is, that the different instruments offered as con- stituting an entire contract must be connected inter se — that is, by reference in themselves to each other — without the necessity of any parol evidence to connect them. This is well shewn by the case of Boydell v. Boydeii v. Dntmmond (k), which was an action for alleged breach ^^"'«'«<'"^- of contract to take and pay for a set of prints from some of the scenes in Shakespeare's plays, and which contract, as it was not to be performed within a year, was required to be in writing by section 4 of the Statute of Frauds. The agreement in writing on which it was sought to charge the defendant was this — that printed copies of the prospectus containing the full (A) Hussey v. Horn-Payne, 4 App. Cas. 311 ; 48 L. J. Ch. 846; Bristol and Stoansea Aerated Bread Co. Limited v. Maggs, 44 Ch. D. 616; 59 L. J. Ch. 472; 62 L. T. 416. (i) Bellamy v. Debenham, 45 Cli. D. 481 ; 63 L. T. 220. (k) 11 East, 142. 34 OF SIMPLE CONTRACTS, AND CASES IN WHICH particulars of the publication lay on the counter of the plaintiff's shop for inspection, and that there was also a book lying there, headed " Shakespeare Subscribers : their signatures," and that the defendant had signed his name in this book ; but it also appeared that there was nothing in the book containing the signatures referring to the prospectus, nor was there anything in the prospectus referring to the book ; and upon this it was held that there was no binding contract, the reason being shewn in the following passage from one of the judgments delivered : " If there had been anything in the book which had referred to the particular prospectus, that would have been sufficient ; if the title to the book had been the same as the prospectus, it might perhaps have done ; but as the signature now stands, without reference of any sort to the prospectus, there was nothing to prevent the plaintiff from substituting any prospectus, and saying that it was the prospectus exhibited in his shop at the time to which the signature related " (/). Modern relaxa- But the rule as thus laid down in Boydell v. strict rule in Drummond must be taken to have been somewhat re- ^univmnd ^^.xed by modern cases, it having been held that parol evidence is admissible to connect two documents where each obviously refers to another document, and where the two when thus connected make a contract without further explanation (m). Thus in one case the de- fendant agreed to sell to the plaintiff a freehold estate for £2 2)7 Si ^^^ signed a memorandum which contained all the essentials of the contract except that it omitted to mention or refer to the property agreed to be sold. Two days afterwards the plaintiff, pursuant to the con- tract, sent the defendant a cheque for the deposit and in part payment of the price, and the defendant replied (I) Per Le Blanc, J., ii P^ast, 158. See further /n^ram v. Little, I C. & E. 186 ; Stiidds v. Watson, ;i^ W. R. 118, and the very recent case of Potter v. Peters, 64 L. J. Ch. 357. (m) See Anson's Contracts, 62. WAITING IS liEQUIRED FOK TIIEIK VALIDITY. 35 by letter, " I be^ to acknowledge receipt of cheque on account of the purchase-money for the F. estate." It was held that parol evidence was admissible to ex- plain the circumstances under which the letter was written, and that as such evidence connected the letter and the memorandum, the two documents read to- gether constituted a sudicient memorandum under the Statute of Frauds (%). It will be observed that in this case there was an obvious reference in the letter to another document, which was not the case in Boydell v. Bruvimond, the rule in which case must still be taken as holding good in its general terms, and which has indeed been recently acted upon by the same Judge who decided the case just referred to (0). It must, however, be remembered that in the case of contracts not required by law to be in writing, there is nothing to prevent the connection of several documents by oral evidence (p). Any offer that is made by a person does not bind him, Au ofifer is and may be revoked by him, until it is accepted by "nf^ice^tfj the person to whom it is made, for until then he has a locus poenitentice allowed him (q) ; and this is true, although the person making the offer expressly gives the person to whom it is made a certain time to accept or reject it. There is nothing binding between the parties until the offer is accepted; but then, when the unconditional acceptance is once made, there is a per- fect and binding contract. When an offer is made by Presumption letter, which is to be accepted by a particular time,ofiXSor"' there is a presumption that the intention to contract *° contract. continues until that time arrives, unless the offer is before then rescinded ; so that where in one case an offer was made by the defendant to sell at a certain price, (n) Oliver v. Hunting, 44 Ch. D. 205 ; 59 L. J. Ch. 255 ; 62 L. T. 108. See also Long v. Millar, 4 C. P. D. 450; 49 L. J. Q. B. 596. (0) Mr. Justice Kekewich in Potter v. Peters, 64 L. J. Ch. 357. (p) Edwards v. Aberayron Mutual Insurance Company, i Q. B. D. (q) Routledge v. Grant, 4 Bing. 653. 36 OF simplj: contracts, and cases in which "receiving au answer by return of post," and through the defendant's mistake the plaintiff did not get the letter at the time he should have done, but when he did receive it sent an answer by return of post, and the defendant had in the meantime considered the bargain off, and sold to some one else, it was held that there was a perfect contract (r). In another case, an offer was made which required an answer by return of post, and, by the fault of the post-office officials, the letter did not reach the plaintiff when it ought to have done, but directly he did receive it he accepted the offer ; it was held that there was a complete contract (s). And it has been held that an offer by telegram is presumptive evidence that a prompt reply is expected, and an acceptance by letter may be evidence of such un- reasonable delay as to justify a withdrawal of the ofifer (0- When a con- tract taking place through the post is complete. It has now been definitely decided with regard to a contract taking place through the post — that is, where it is understood, either expressly or impliedly, between the parties that the acceptance is to be sent by post — that such a contract is complete directly the letter accepting the offer is posted, even although it may never reach its destination (w). In fact, where an offer is made under such circumstances that it must have been within the contemplation of the parties that, according to the ordinary usages of mankind, the post might be used as a means of communicating the accep- tance, the contract is complete as soon as the accep- tance is posted (x). It had formerly been held that such a contract is not complete until the letter of (?•) Adams v. Lindsell, i B. & Aid. 68i. See also Stevenson v. M'Lean, 5 Q. B. D. 356 ; 49 L. J. Q. B. 701 ; 28 W. E. 916. (s) iJunlop V. Hiijgins, i H. L. Cas. 381. (t) Quenerduaine v. Cole, 32 W. R. 185. (■«) Harris' Case, L. R. 7 Ch. Ap. 587 ; 41 L. J. Ch. 621 ; The Jlousehold Fire and Carriaqe Accident Insurance Co. {Limited) v. Grant, 4 Ex. Div. (C. A.) 216 ; 48 L. J. Ex. 577. (r) Ilenthorn v. Eraser, (1892), 2 Ch. 27 ; 61 L. J. Ch. 373 ; 66 L. T. 439- WRITING IS llEQUIRED FOR THEIR VALIDITY. "^i"] acceptance is received by the party making the offer (?/), but this decision is now clearly overruled, and the law is as just stated. An offer made under seal cannot be withdrawn, Kevocation of . T T , i 1 .1 • i.'i withdrawal or but in other cases, as already stated, there is until an offer, acceptance a locus pcenitentim, and it may be withdrawn. But no withdrawal or revocation of an offer is effective until communicated, and though, as already stated, in the case of contracts taking place through the post, an acceptance is communicated when it is despatched, a revocation or withdrawal is not communicated until it is received {z). Therefore, where the defendant wrote and posted an offer (which naturally indicates that the acceptance may be communicated in the same way), and the plaintiff wrote accepting it, and posted such acceptance, and in the meantime the defendant had written withdrawing his offer, but such letter of with- drawal had not been received by the plaintiff at the time of posting his acceptance, it was held that there was a complete contract (a). As stated in the case just referred to below, both legal principles and practical convenience require that a person who has accepted an offer not known to him to have been revoked shall be in a position safely to act upon the footing that the offer and acceptance constitute a contract binding upon both parties. Although a person makes an offer which is to remain open for a certain time, he may retract or withdraw the offer, even during that time, before it has been accepted, and it appears that a sale to another person is sufficient retractation or withdrawal if it comes to the knowledge of the other party, either directly or indirectly, under circumstances sufficient to induce such (jther party to believe it (6). {y) British American Telegriifh Co. v. Colson, L. R. 6 Ex. io8 ; 40 L. J. Ex. 07. {z) Henthorn v. Fraser, (1892), 2 Cli. 27 ; 61 L. J. Ch. 373 ; 66 L. T. 439- (a) Byrne v. Von T'uiihovcn, 5 C. P. D. 344 ; 49 L. J. C. P. 316 ; 42 L. T. 371. (h) Dickinson v. Dodds, 2 Cli. D. 463 ; 45 L. J. CI). 777. 38 OF SIMPLE CONTRACTS, AND CASES IN WHICH raent. Recovery of It bas been held that where a person offers by adver- reward ofifered ,. , ii-^it- c i_ " by advertise- tisement a reward tor the doing or some act, any person doing such act has a right to recover the advertised reward. This is at first only an offer to the whole world at large, but any particular person doing the act renders it the same as if the offer were made to and accepted by him, and the doing of the act required amounts to a valuable consideration, so that all the essentials of a valid simple contract exist (c). It is submitted that this principle does not apply if the person doing the act did not at the time know of the reward offered (d). Conditions on tickets, receipts, &c. If a person offers to sell or carry goods, or do any other act, on certain terms and conditions, and the party to whom the offer is made buys the goods, or delivers the goods to be carried, or suffers the other act to be done, he is taken to have assented to the special terms and conditions. Thus if A. puts up in his shop a notice that he charges interest on the price of all goods sold and not paid for within a certain time, and a person having seen that notice buys goods, he has assented to the condition as to interest, and it forms part of the contract. Matters of this kind often arise in the case of railway companies who make offers to carry or receive goods on certain conditions, e.g. by giving a receipt or ticket containing detailed terms and con- ditions. The question then arises whether the party is bound by such terras and conditions. If he read the conditions, then of course he is bound by them, but this is also the case if he saw there were certain conditions but did not choose to read them, or they were so plainly stated on the face of the document that he must be (c) Per Lord Campbell, in Gerhard v. Bates, 2 E. & B. 476 ; Carlill V. Carbolic Smoke Ball Co., (1893), I Q- 1^- 256 : 62 L. J. Q. B. 257 ; 67 L. T. 837. (f/) See this point and the case of Williams v. Caricardine (4 B. & Ad. 621), which is sometimes quoted as an authority to the contrary, dealt with in Anson's Contracts, p. 16. There appears to be no direct English autliority on the point. WRITING IS REQUIRED FOR THEIR VALIDITY. 39 taken to have seen them, or is guilty of negligence in not having read them (e). But if the conditions are stated on the back of the document, or in very small type, so that a person cannot be presumed to have seen them, and is guilty of no negligence in not having done so, then he is not bound unless it is proved that he did in fact see them (/). Thirdly, as to consideration. A valuable considera- The question tion has already been defined (g), and upon it the first noUcoSidJl-a- point to be noticed is, that though some valuable con- *'°° '^ ^"ffi- . -, . . . . cient for what sideration is an essential to a simple contract (h), yet the is agreed to be question of whether or not the consideration is sufficient irconsTdered. for what is agreed to be done will not be entered into ; thus the forbearance of legal proceedings for a very short time is a perfectly satisfactory valuable considera- tion for an agreement to pay a much larger sum (i), and a bond fide compromise of a real claim is a valuable consideration, whether the claim would have been suc- cessful or not, but the plaintiff must believe that he has a case, and must intend lond fide to maintain it Qc) ; and if the professed consideration is practically nothing at all, but simply a nullity, as, for instance, the sur- render of a tenancy at will, which may be determined at any time, then it will not be sufficient. In other words, consideration need not be adequate, but must (e) Harris \. Great Western Ri/., i Q. B. D. 515; 45 L. J. Q. B. 729; Parker v. South- Eastern Ry., 2 C. P. D. 416 ; 46 L. J. C P 768. (/) Henderson v. Stevenson, L. R. 2 Sc. App. 470 ; Rowntrec v. Richardson, 57 J. P. 533 ; 9 T. L. R. 297. (g) See ante, p. 18. [h) For some remarks on how consideration came to be the important ingredient in simple contracts, the student is referred to Anson's Con- tracts, 42-47 ; and it may be useful to here quote the following passage from that work (p. 46) : "It is a hard matter to say how consideration came to form the basis upon which the validity of informal promises might rest. Perhaps it may suffice for our present purposes to say that the ' quid pro quo,' as it is styled in some of the early reports, was probably borrowed by the Common Law Courts from the Court of Chancery." (i) See, for instance, Smith v. Alf/ar, i B. & A. 603. {k) Miles V. Neiv Zealand Alford Estate Company, 32 Cli. D. 266 ; 5t L. J. Ch. 801 ; 34 W. R. 669 ; 54 L. T. 5S2. ■40 OF SIMPLE CONTRACTS, AND CASES IN WHICH be real (/). It is also the rule in equity in cases of most utter and unconscionable inadequacy of considera- tion — such inadequacy, in fact, as to shock the conscience — to give relief on the ground of some imposition or fraud, and in the case of bargains with expectant heirs it is generally necessary to shew that a full considera- tion was paid (m) ; but this, though undoubtedly now applying to all divisions of the High Court of Justice, does not, nevertheless, do away with the correctness of the general rule, that the question of adequacy or inade- quacy of the consideration will not be entertained. When \yritiug When Writing is used it is not sufficient for the shew the con- Writing to shew the promise, and then to shew by oral wef/as^the**^ evidence that there was a consideration for that promise, promise. but both the promise and the consideration must appear Wain V. Wariter/t. on the facc of the written contract or be capable of being implied therefrom (7^1), or it will not be binding ; for the consideration is part of the agreement (0), and this Exceptions to is SO cveu though Writing was not necessary to the validity of the instrument. To this rule there are ex- ceptions in the case of bills of exchange and promissory notes, in which the consideration is presumed until the contrary is shewn, and also in the case of guarantees, as to which it is provided by the Mercantile Law Amend- ment Act, 1856 (p), as follows : " No special promise to be made by any person after the passing of this Act, to answer for the debt, default, or miscarriage of another person, being in writing, and signed by the person to (I) Anson's Contracts, S9-91. (m) See hereon Indennaur's MaTiual of Equity, 194. (n) Thus it is not necessary in a contract in writinjj for the sale of goods that the price of the goods should be actually named, if in fact no specific fact has been agreed on, for it will be presumed that the contract is to pay a reasonable price. But if a specific price is agreed on, then that price must be mentioned in the contract, and oral evidence would be inadmissible on the point : Iloadlci/ v. M'Laine, 10 Bina-. 482. (o) Wain v. Warlters, 2 S. L. C. 266 ; 5 Enst, 10. See, however, the case of In re Barngtaplc Second Annuitant Society, 50 L. T. 424, where it was held that oral evidence might be admitted to shew that there was another consideration besides the one mentioned in the contract. (p) 19 & 20 Vict. c. 97, s. 3. WRITING IS REQUIRED FOR THEIR VALIDITY. 4 1 be charged therewith, or some other person thereunto lawfully authorized, shall be deemed invalid to support any action, suit, or other proceeding, to charge the person by whom such promise shall have been made by reason only that the consideration for such promise does not appear in writing or by necessary inference from a written document." The reason of this altera- tion in the case of guarantees was because it was found in practice that the rule led to many unjust and technical defences to actions upon guarantees {q) ; but the student will of course observe here that the statute does not dispense with the necessity of a consideration to a guarantee, but merely provides that it need not appear on the face of the instrument. Considerations with reference to the time of their Cc.usiderations performance may be either executed, i.e. something reference'to' done before the making of the promise : execittorii. i.e. ^|ie time of , T ^ T their per- somethmg to be done at a future day ; concurrent, i.e. formance. taking place simultaneously ; or continuinej, i.e. partly performed, and partly yet to take place (?•). A very important question to be asked on this subject is, Will Au executed an executed consideration support a promise ? and the consideration I J- i will only sup- answer is mainly found in the leading case of Lamp- po^t a promise high V. Braithwaite (s), which decides that "a mere by a precedent voluntary courtesy will not uphold assumpsit, but 'd^2ampleighY. courtesy moved by a previous request will." An exe- Bmitimaite. cuted or past consideration, therefore, to support a promise, must be moved by a precedent request, e.g. if the plaintiff in his statement of claim alleges that in consideration that he had done a certain act for the defendant the defendant promised, this would be bad ; but if he stated that in consideration that he had done a certain act for the defendant at his request the defen- dant promised, this would be good. This previous re- (q) 2 S. L. C. 263. ()•) Chitty on Contracts, 45. (s) I S. L. C. 153 ; Hobart, 105 ; and see Bradford v. Roulston, 8 Ii R. C. L. 468. 42 OF SIMPLE CONTRACTS, AND CASES IN WHICH quest may be either express or implied, for it will be implied in the following cases : — Cases in which I . Where the plaintiff has been compelled to do that reqn^esrw'iif be which the defendant was legally compellable to do and implied. ought to have done, e.g. where the plaintiff was a surety for the defendant, and has been called upon to pay and has paid the amount for which he was surety. 2. Where the plaintiff has voluntarily done what the defendant was compellable to do, and in consideration thereof the defendant has afterwards expressly pro- mised to reimburse him. A person cannot recover for his spontaneous act unless there is such a subsequent promise (t), but the promise being made, then the prior request is implied. 3. Where the defendant has accepted the benefit of the consideration, e.g. if a tradesman sends to a man goods the latter never ordered, but he chooses to keep them {u) ; and 4. Where the plaintiff has voluntai-ily done some act for the defendant which is for the public good, e.g. in paying the expenses of burying a person^ in the absence of the one legally liable to pay such expenses (x). Counsels" services. There is one case even at the present day in which, though there is actually an express previous request, no action can be maintained, viz. in the case of counsels' services, for any fee is here looked upon as a honorarium. Au executed Iq discussing executed considerations, there is an- from'wWcir' o^^®^ important point to be mentioned, and that is, that {t) Stokes V. Leiuis, i T. U. 20. (it) I S. L. C. 160 ; Chitty on Contracts, 47. [x) Roscoe's Digest, 513. WRITING IS RKQUIKKD FOU THKIK VALIDITY. 43 where from the executed consideration the law implies the law im- a promise, the force and strength of the consideration is wiiTnot'suil-''* exhausted in producincr the implied promise, and it will i"^""*^ ^"J' oti'^r support no express promise in addition to it. Thus it was held that where an account had been stated and a sum found to be due thereon to the plaintiff, that this fact would not support an express promise to pay such sum in futuro, because the promise that the law implied from it was to pay in ^rrccsenti (?/). So again, in the case of Roscorla v. Thovias (s), where, in con- R„scorla v. sideration that the plaintiff had, at the defendant's ^'''""""■'*- request, bought a horse of the defendant, the defendant promised that the horse was free from vice, it was held that there was no consideration to support this promise, for it was an executed consideration from which the law had already implied a promise to deliver the horse, and therefore it would not serve to support any other promise. There are many matters of a past nature which throw a merely upon a person a moral obligation, but though there deratL*ll"wiii have been cases to shew that a merely moral considera- "°* support a • 11 • s 1 1 T promise. tion Will support a promise (a), they may be put aside as undoubtedly not law at the present day, and it can be definitely stated that a consideration only moral in its nature will not be sufficient to support a contract. This is well illustrated by the case oiBeaumontY. Reeve{h), Beaumont v. in which it was decided that a promise by a man that, '^^"'^" in consideration that he had seduced and cohabited with a woman, he would make her a certain payment, was merely nudum pactum, and could not be en- forced : the seduction gave forth no obligation towards the woman which, according to our laws, could be en- forced, and therefore no promise could give a right of action on it. The student must not confuse this with iy) Hopkins v. Lngan, 5 M. & W. 247. (2) 3 Q. B. 234 ; 6 Jur. 929. (a) Chitty on Contract-^, 35. (6) 8 Q. B. 4S3. 44 OF SIMPLE CONTRACTS, AND CASES IN WHICH a promise by a man to pay a sum to the mother of his illegitimate child towards its support, for this is perfectly valid, as a mother by undertaking the entire support of such child does more than by law she is bound to, and this forms a sufficient consideration for the promise (c). But a moral But though a merely moral obligation will not con- obligation . n^ • !• 1 • which was stitute a sumcient foundation to support a promise, yet, onrwill^sup- ^^ ^^ ^^ ^^^ entirely of a moral nature, but was once port a promise, q, legal obligation, which has only become a moral one by reason of having become devoid of legal remedy, it may support a promise (d). The correct rule upon the point has been well stated to be that " an express promise can only revive a precedent good consideration which might have been enforced at law through the medium of an implied promise, had it not been sus- pended by some positive rule of law ; but can give no original right of action if the obligation on whicli, it is founded could never have heen enforced at lau\ though not barred by any legal maxim or statute pro- vision " (c). Thus in the case of an agreement to pay a sum in consideration of past seduction, this is an obli- gation which never could have been enforced at law, but in the case of a debt which has been barred by the Statute of Limitations, though, being so barred, the obligation to pay is merei}^ a moral one, yet it is an obligation which could once have been enforced, and has only been rendered simply moral by reason of its having become devoid of legal remedy, and the promise (c) Smith V. Hocke, 28 L. J. C. P. 237. (d) I S. L. C. 161. (e) Note to Wetmall v. Adnry, 3 B. & P. 252. See also Chitty on Contracts, 36. The following quotation from Anson's Contracts (pp. lOi, 102) also puts the matter very plainly: — "Where the con- sideration was originally beneficial to the party promising, yet if he be protected from liability by some provision of the Statute or Common Law, meant for his advantage, he may renounce the bene- fit of that law ; and if he promises to pay the debt, which is only what an honest man ought to do, he is then bound by the law to perform it." WHITING IS REQUIRED FOR THEIR VALIDITY. 45 to pay such a debt is binding (/). This principle does not, however, apply to a debt from which a bankrupt is released by his order of discharge, for no promise to pay such a debt can be enforced unless supported by a new and valuable consideration (g), for the debt is, in fact, extinguished. With regard to an executory consideration, as it An executory consists of something to be done at a future day, of ;=°,^,f g^J^^^J"^^^^ course before an action can be maintained on the con- ^^^"^^ ^^en per- tract, the future act forming the consideration must an action can have been done by the plaintiff, or he must at least the^'onSct" have been always ready and willing to do it. The doing by a person of an act which he was The doiug of already under a legal obligation to do cannot form a wIs^bounTto" consideration ; thus a promise bv a master of a ship to ^*"' ^^ "° '■°"" , . .,,.." , . ^ sideratioii. pay his seamen a sum in addition to their proper wao-es as an incitement to extra exertion on sudden emergency is not binding, for they are, as seamen, bound to do everything in their power (h). This is an instance of unreality of consideration (i). But it would be different if risks had arisen which were not contemplated by the contract, and the agreement was to make further payments by reason of this (k). If the consideration stated for a promise is of such a As to an im- nature as to be either legally or morally impossible, no Nation"'" promise founded on it will be binding (I). By a con- sideration legally impossible, is meant where a person agrees to do an act which is contrary to the law, or not permitted by law to be done (m) ; and by a consideration (/) As to limitation generally, see 2}ost, pp. 269-276. (g) Jakeman v. Cook, 4 Ex. D. 26 ; 48 D. J. Ex. 165 ; 27 W. R. 171. (h) Harris v. Carter, 3 E. & B. 559 ; Stilk v. Meyrick, 2 Camp. 317. (i) See Anson's Contracts, 84, 85. {k) Hartley v. Ponsonby, 7 E. & B. 870. (l) Chitty on Contracts, 42, 43. (m) See Haslam v. Sherwood, 10 Bing. 540 ; Harvey v. Gibbons, 2 Lev. 161 ; Whitmore v. Farley, 29 W. R. 825 ; 45 L. T. 99. 46 OF SIMPLE CONTRACTS, AND CASES IN WHICH morally impossible, is meant where a person agrees to do an act which is simply an absurdity as being naturally and physically impossible, " as if the consideration be a promise that A. shall go from Westminster to Rome in three hours " (n). Here this is manifestly an absurdity and an impossibility, and from such a promise no benefit or advantage can result to the other party, so that it in fact amounts to no consideration at all. And although a consideration did not originally appear impossible, yet if from circumstances it appears that it is so, the rule equally applies, or if it is made impossible by statute (o). Articled clerk's or apprentice's premium. If an apprentice or articled clerk pays a premium, and the master dies before completion of the period of the apprenticeship or articles, no portion of the premium can be recovered (p), unless there is a stipu- lation providing for it, or the master is a member of a firm (q). In the event of the bankruptcy of the master, however, provision is made by the Bankruptcy Act, 1883, for a return of a portion of the premium (?•). The object of a Fourthly, As to the object of the contract. This no°*be'iil™^l* ^^st be neither of an illegal nor immoral nature, either or inniiorai. directly or indirectly, but if there are legal and illegal acts stipulated for in a contract, and they are clearly divisible, it will not render the whole contract void (s). erases in which writing is necessaiy. To a deed, writing is, of course, an essential, for to constitute a deed there must be a writing actually sealed and delivered ; but for simple contracts at com- mon law no writing was necessary, nor is it at the present day, except in those cases in which it has been rendered necessary either by statute or custom. Those (n) Chitty on Contracts, 42, 43. (o) See Chanter v. Leese, 4 M. & W. 295 ; Chitty on Contracts, 44. Ip) Wliincup V. Hughes, 24 L. T. N. S. 76 ; Ferns v. Carr, 28 Ch. D 409 ; 54 L. J. Ch. 478. (q) Ex parte Baylcy, 9 B. & C. 691. (r) 46 & 47 Vict. c. 52, s. 41. (s) See further as to illegal contracts, 'post, ch. ix. WIUTINC; IS REQUIRED FOR THEIR VALIDITY. 47 cases in which writing is necessary are mostly of great practical importance, and may be stated to be chiefly as follows : — 1 . In cases coming within the Statute of Frauds (t), Lord Tenterden's Act (u), or the Sale of Goods Act, 1893 (v). 2. In the case of grants of annuities. 3. Contracts relating to sale or assignment of copy- rights. 4. Contracts relating to sale or transfer of ships ; and, 5. Bills of exchange, promissory notes, and other like negotiable instruments. Of the above cases, by far the most extensive is that numbered i , and here it must be remembered that the writing required by these statutes does not go to the existence of the contract ; that the contract exists though it may not be clothed with the necessary form, and the effect of non-compliance with the statutory provisions is simply that no action can be brought until the omission is made good (x). Of the Statute of Frauds the most important sections are the ist, 2nd, 3rd, 4th, and 7th. The 17th section has now been repealed and re-enacted by the Sale of Goods Act, 1893. The 1st section provides that <' all leases, estates, {t) 29 Car. 2, c. 3. (m) 9 Geo. 4, c. 14. (v) 56 & 57 Vict. c. 71. (x) Anson's Contracts, 67, 72 ; and see Bailey v. Sweettnp q C B N. S. 843. y. y • 48 OF SIMPLE CONTRACTS, AND CASES IN WHICH Provisions of the ist, 2nd, and 3rd sec- tions of the St.itute of Frauds. interest of freehold or term of years, or any uncertain interest of, in, to, or out of, any messuages, manors, lands, tenements, or hereditaments made or created by livery and seisin only, or by pai'ol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater force or effect, any consideration for making any such parol leases or estates, or any former law or usage to the contrary notwithstanding." The 2nd section, however, goes on to provide, " Except, never- theless, all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord during such term shall amount unto two-third parts at least of the full improved value of the thing demised." The effect, therefore, of these two sections taken together is, that a lease by parol can only be made where it does not exceed three years from the makiuo- thereof, and the rent is at least two- thirds of the annual value {y). By the 3rd section all assignments and surrenders of leases must be in writing, signed by the persons or their agents autho- rized in writino-. Provisions of the 7th sec- tion. The 7th section, perhaps, should hardly be mentioned in the present work. It may, however, be noticed that it provides that trusts of land or any interest in land must be in writing ; but it does not require any writing to create a trust of purely personal property, though under section 9 all grants and assignments of any trust must be in writing. There then remain the 4th and 17th sections to be considered. Provisions of the 4th sec- tion. The 4th section provides that " no action shall be brought (l) to charge any executor or administrator (?/) See further hereon, post, eh. iii. p. 64. WRITING IS REQUIRED FOR THEIR VALIDITY. 49 upon any special promise to answer damages out of his own estate, or (2) to charge the defendant upon any special pi'omise to answer for the debt, default, or miscarriage of another person, or (3) to charge any person upon any agreement made upon consideration of marriage, or (4) lapon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, or (5) 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 is brought, or some memorandum or note thereof, shall be in writing, signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." As to what is a sufficient " memorandum or note " to " Memo- randa m or satisfy the statute, the recent case of Re Hoyle, Hoyle v. note." Hoyle (z), may usefully be referred to. A testator had in ^'^ ^^- y • his lifetime verbally promised to guarantee payment of debts due from his son to a certain firm, and he recited this fact in his will and codicil. In the administration of the estate, the firm made a claim against the estate under the guarantee, and it was held by the Court of Appeal that the reference in the will and codicil to the guarantee was a " note or memorandum in writing," within the meaning of section 4 of the Statute of Frauds, of a promise by the testator to answer for the debt of his son, and therefore the testator's estate was liable. With regard to a promise by an executor or admini- As to contracts ,,, J i. c ^ • j.j_-, by executors or strator to answer damages out 01 his own estate, it administrators need only here be said that, although the writing- re- *,° answer •' . damages out of quired by the statute exists, yet there must also be tteir own some valuable consideration for the promise ; thus the mere fact of an executor or administrator statingf in writing that he will see a certain debt paid, is not {z) 41 W. R. 81. 50 OF SIMPLE CONTRACTS, AND CASES IN WHICH sufficient to render him personally liable in the ab- sence of some consideration, e.g. the giving of time or forbearing of proceedings by the creditor. As to guar- But the next kind of contract mentioned in the 4th antees. . . , , , r, section, VIZ. a guarantee or agreement to answer lor the debt, default, or miscarriage of another person, demands a more lengthened considei*ation. Birkmyr v. In the first place must be observed the decision in "'^"^^ ' the leading case of Birkmyr v. Darnell (a), to the effect that a promise to answer for the debt, default, or miscarriage of another, for which that other person remains liable, is within the statute, and must be in writing ; but if that other does not remain liable, then it is not within the statute, and need not be in writ- ing. To illustrate this, the following example may be given : — A. goes into a shop with B., and says to the shopkeeper, " Supply goods to B., and if he does not pay you for them, then I will." This is within the statute, for it is a guarantee, and to render A. liable it must be reduced into writing. But if A. goes into a shop with B, and says, " Supply goods to B. and charge them to me," this is not within the statute, for it is no guarantee, but a direct sale to A., the goods being by his direction sent to B., and therefore, to render A. liable, there need be no writing (&). Promise to the Again, if the promise is made to the debtor himself, self. it is not within the statute, for the statute only ap- plies to promises made to the person to whom another is answerable (c). (a) I S. L. C. 334 ; Salkeld, 27. (b) Unless, indeed, it comes within section 4 of the Sale of Goods Act, 1893 (formerly section 17 of the Statute of Frauds), as to which see jiost, ch. iv. p. 99. The question as to whether words used do or do not amount to a guarantee is one for the determination of the Court, not the jury: Bank of Montreal v. Munstcr Bank, 11 Ir. Rep. C. L. 47- (c) Eastwood v. Kenyon, 11 A. & E. 446. See further as to what are and what are not guarantees within the 4th section of the Statute of Frauds, and the distinction between a contract of guarantee and a contract to indemnify, post, p. 151. WRITING IS REQUIRED FOR THEIR VALIDITY. 5 1 A guarantee formerly came within the common Formerly rule (d) that the consideration as well as the promise must appear in must appear on the face of the instrument, but in *^'^ guarantee, consequence of the difficulty of setting forth the con- sideration in a sufficient manner to satisfy the courts of law, this rule proved to be a grievance to the mercantile community (c), and in consequence, the Mercantile Law Amendment Act, 1856 (/), provides that a guarantee shall be valid without the conside- The considera- ration appearing on its face. The same statute (r/) ^'ow lippeaTon provides that on a surety paying the principal's debt ^^^^ ^'-^'^f ^^ ^ he shall be entitled to have assigned to him, or a trustee for him, every judgment or other security held by the creditor, notwithstanding the same may be deemed at law satisfied by his payment or perfor- Rights of a mance, and such person shall be entitled to stand in fng^hfs princi- the place of the creditor (h). Before this statute the ^^^'^ ^^^*- surety only had a right to collateral securities, and not to the principal scurity itself. The rule as to a surety's right to securities equally applies, though he did not know of the existence of such securities when he became a surety, his right in no way depending on contract, but being the result of the equity of indemni- fication attendant on suretyship (i) ; and the right of a co-surety who has satisfied a judgment obtained by the creditor against the debtor and his sureties, to stand in the place of the judgment creditor, is not affected by the circumstance that such surety has not obtained an actual assignment of the judgment (k). If a person gives a continuing guarantee to a firm, Surety to or , , 1 • J p n ', • 1 .1 • for a firm, &c. or to a third person tor a farm, it is, unless otherwise {d) Stated ante, p. 40. (e) I S. L. C. 330 ; ante, p. 41. (/) 19 & 20 Vict. c. 97, s. 3. (g) 19 & 20 Vict. c. 97, s. 5. (h) He Churchill, Manisty v. Churchill, 39 Ch. D. 174 ; 59 L. T. 597. (i) Duncan Fox i^ ^^7 of such cases effect would be given to the contract in all divisions of the Hicfh Court of Justice. The Statute But the Statute does not mention merely contracts extends to anv n,i -i e i j i, i. ^ n • i. j. • interest in for the salc ot lands, but also any interest m or con- land, cerning them ; " and it is frequently a point of some nicety to determine what is and what is not an interest (a) Attorney -General v. Day, i Ves. Sen. 2i8. (6) Indermaur's Manual of Equity, 187-191. (c) 36 & 37 Vict. c. 66, s. 25 (11). OF LANDLORD AND TENANT. 6l in land within the statute. Good instances of what have been held to be, and what have been held not to be, an interest in land are found in the decisions that a contract for the sale of growing grass is an interest in land within the statute {d), but a con- tract for the sale of growing potatoes is not {c). The what is au rule on this point is stated in Mr. Chitty's work on j^yj'^^* ^° Contracts (/) as follows: — "With respect to emble- ments, or frudus industrial es, a contract for the sale of them while growing, whether they have arrived at maturity or not, and whether they are to be taken off the ground by the buyer or seller, is not a contract for the sale of an interest in land ; but a contract for the sale of a crop which is the natural produce of the land, if it be unripe at the time of the contract, and is to be taken off the land by the buyer, is a contract for the sale of an interest in laud within the statute." To determine accurately what is an interest in land within this section and wliat is not is, however, frequently a most difficult matter ; indeed a learned judge {(j) once stated that there was no general rule laid down in any of the cases that was not contradicted by some other. It has been held that a contract for the sale of growing timber, to be cut by the vendor or vendee, if it is to be cut immediately, or as soon as possible, does not confer any interest in land, and therefore is not within the section now under discus- sion, though if the price exceeds ;^io it is within the 17th section {h), as being a contract for the sale of goods {i). In the case of Marshall v. Green, Lord Marshall v. Coleridge, in deciding that timber to be taken away ^'"^^"" immediately is not an interest in land within this section, said : " Planted trees cannot in strictness be (d) Crosby v. Wadsiuorlh, 6 East, 602. (e) Evans v. Roberts, 5 B. & C. 829. (/) Page 397. ig) Lord Abinger, in RodweR v. Phillips, 9 M. & K. 501. (h) Now the 4th section of the Sale of Goods Act, 1893, as to which see post, ch. iv. p. 99. (i) Smith V. Surman, 9 B. & C. 561 ; Marshall v. Green, i C. P D. 35; 45 L. J. C. P. 153. 62 OF CONTKACTS AS TO LAND, AND HEREIN said to be produced spontaneously, yet the labour employed in their planting bears so small a proportion to their natural growth that they cannot be considered as fructus industriaies ; but treating them as not being frudus industriaies, the proposition is, that where the thing sold is to derive no benefit from the land, and is to be taken away immediately, the contract is not for an interest in land. Here the contract was that the trees should be got away as soon as possible, and they were almost immediately cut down. Apart from any decision on the subject, and as a matter of common-sense, it would seem obvious that a sale of twenty-two trees, to be taken away immediately, was not a sale of an interest in land, but merely of so much timber " {k). From these observations it would seem that if timber is not to be immediately taken away, but is to remain on the land and derive some Particular benefit thercfrom, it will be an interest in land. The the point."^ following contracts may also be mentioned as having been decided not to be an interest in land within the statute : — A contract for the sale of railway shares. A contract by a tenant in possession by which he (Jc) Marshall v. Green, i C. P. D. 39, 40; 45 L. J. C. P. 153. In the case of Scovell v. Boxall, i Y. & J. 396, it was held that a contract for the sale of growing underwood was a contract or sale of an interest in land within this section ; but in that case it did not appear when it was to be cut, and probably had it been that the underwood was to have been cut immediately, it would have been decided the other way. As a further instance of a contract held to relate to an interest in land, see Whitmore v. Farley, 28 W. R. 908 ; 43 L. T. 192 ; also Webber v. Lee, 9 Q. B. D. 315 ; 51 L. J. Q. B. 485 ; 30 W. R. 4S6, where it was held that a grant of a right to shoot over land, and to take away a part of the game killed, comprised an interest in land ; also Lavery v. Purs- sell, 39 Ch. D. 508 ; 57 L. J. Ch. 570 ; 58 L. T. 846, where it was held that a contract for the sale of the materials of an old house to be pulled down and taken away within two months was a contract for the sale of an interest in land ; also Driver v. Broad, (1893), i Q. B. 744 ; 63 L. J. Q. B. 12 ; 69 L. T. 169, where it was held that a contract for the sale of debentures that created a floating charge on its property, consisting in part of leaseholds, was a contract for the sale of an interest in land. OF LANDLORD AND TENANT. 6;^ agreed to pay an additional sum per annum in con- sideration of improvements by the landlord. An agreement for lodging and boarding in a house (/). An agreement by a landlord with a quitting tenant to take the tenant's fixtures (■?»), On a contract for sale of land, in the absence of Title to i.e stipulation to the contrary, the title was formerly sixty years, but now, under the Vendor and Purchaser Act, 1874 (n), as regards any contract made after December 31, 1874, it is forty years (0), and if it is a leasehold property the purchaser cannot now call for the title to the reversion, whether freehold or lease- hold (p). On a contract for the sale of land the vendor is only bound to disclose to the purchaser facts relating to the property which in the ordinary course of events he could not discover for himself, and, generally speak- ing, a purchaser is not under any obligation to disclose to a vendor facts which he is aware of which enhance the value of the property, e.g. his private knowledge of the existence of minerals under the land (q). With regard to what is a proper signature within the one party to statute, one party to the contract cannot be the agent canm)*fc^si'*n for of the other, but a third person — e.g. the auctioneer at a ^iie other. (I) As to an agreement for the letting of apartments, if the tenant actually enters and it is not for more than three yfiars, no writing is required, as it comes within the exception in section 2 of the Statute of Frauds ; but until actual entry it is only a contract, and is not action- able unless in writing : Inman v. Stamp, i Stark, 12 ; £d/je v. Strafford, I Tyrw. 295. (m) See Chitty on Contracts, 398. It has been held that an agree- ment requires just as much to be in writing if the intei'est in the land moves to the plaintiff as it would if it moved /ro»?i him : Ronayne v. Sherrard, il Irish Reps. (C. L.) 146. (n) 37 & 38 Vict. c. 78. (0) Ibid., s. I. Ip) Ibid., s. 2 ; 44 & 45 Vict. c. 41, s. 3 (i). (q) See also Indermaur's Manual of Equity, 191, 192. 64 OF CONTRACTS AS TO LAXD, AND HEREIN sale — can be the agent of both parties. On a sale of land the name of the vendor, or some sufficient descrip- tion of the vendor, should be inserted before the contract is signed. The mere term " vendor " is not a sufficient description (r), but the word " proprietor " has been held sufficient (s). Different ways in which a tenancy may exist. Statute of Frauds as to leases, iind assign- ments of leases. A tenancy may exist in various different ways, as if one holds either for a fixed period, or simply from year to year, or at will, or sufferance. By the ist sec- tion of the Statute of Frauds, all leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to, or out of land, must be in writing signed by the parties or their agents authorized by icritinri, or they have the force and effect of estates at will only {t). The 2nd section excepts from this provision leases not exceeding three years from the making thereof, at two- thirds of the full improved value {u). And by the 3rd section all assignments of leases (not being copyhold or customary property) must in a like way, as is pro- vided in the ist section as to leases, be in writing. By 8 & 9 Vict. c. 106 {x), every lease required by law to be in writing, and assignments of leases (not being copyhold), shall be void at law unless made by deed. An agreement for a leise must always be ill writing. The student will observe that though, under the 2nd section, leases not exceeding three years may be made by word of mouth, yet, by force of the 4th section, any agreement for a lease, for however short a time, must be in writing. As above stated, the strict provision of the statute (»•) Potter V. DuMeld, L. R. i8 Eq. 4 ; 43 L. J. Ch. 472 ; Jarrett v. Hunter, 35 W. R."i32 ; Butcher v. Nash, 61 L. T. 72. (s) Rossiter v. Miller, L. R. 3 App. Gas. 1124 ; 48 L. J. Ch. 10 ; Sale V. Lambert, L. R. iS Eq. i ; 43 L. J. Ch. 470. See also Catling v. King, 5 Ch. Div. 660 ; 46 L. J. Ch. 3S4 ; StoMl v. Niven, 61 L. T. 18. (() This section is set out verbatim, ante, p. 48. (u) This section is set out verbatim, ante, p. 48. {x) Sect. 3. OF LANDLORD AND TENANT. 65 is, that leases which it requires to be by writing, and statute pro- which are not, are to have the force and effect of leases not iu estates at will only ; but although this is so, to simply ^ave oniy'the state that fact in answer to a question on the effect of effect of es- sueh a lease would be useless. The well-known case of " Clayton v. Blakey (y) decides the point that, notwith- ciaiiton v. standing the said enactment, yet if a tenant under '^ ^^' such a lease enters and pays rent, it may serve as a tenancy from year to year. In the first instance, no doubt, all the tenant has is a tenancy at will in strict conformity with the statute, but the court leans against that tenancy and in favour of a tenancy from year to year {z), and therefore it is afterwards converted into that. Further, if a person holds under a lease which from any cause is void under the Statute of Frauds, or from not being, as now required to be {a), by deed, or if a tenant holds over after the expiration of his me d. Riarle Gould, Re Walker, 13Q. B. D. 454; 51 L. T. 368. (z) Roffeij V. Henderson, 17 Q. B. 574. (^•) Post, p. T2,. T2 OF CONTRACTS AS TO LAND, AND HEREIN ters, pumps, partitions, shrubs, and trees planted for sale. The fixtures, if removable, must be taken away without material damage to the inheritance, and the right of removal is, of course, liable to be controlled by express contract ; so that, for instance, if a tenant cove- nants to keep in repair all erections built, or thereafter to be built, and surrender them at the end of the term, this will prevent him removing things which, but for the covenant, he might have removed (/). Ein-es V. Mane Under the exception to the common law rule in tnrai fixtures, favour of trade fixtures, it was decided in Elives v. Mawe (m) (which is a case very generally quoted and referred to on the subject of fixtures), that this would not apply to allow tenants in agriculture to remove things erected for the purposes of husbandry; but as the rule undoubtedly often worked hardship on tenants, it has been altered by the Legislature, it being provided Provision of bv 1 4 & I 5 Vict. c. 2 5 (?i), that all buildings, engines, c!*2s. * or the like, erected by the tenant for agricultural pur- poses, with the consent in writing of the landlord, shall remain the property of and be removable by the tenant, so that he do no injury in the removal thereof ; pro- vided that one month's notice in writing shall be given, l)efore removal, to the landlord, who within that time is to have a right of purchasing at a value to be ascertained by two referees or an umpire. The Agri- Pioyision of cultural Holdings Act, 1883 (0), also now contains a Holdings Act, provision ou this subject with regard to tenants under ^^^^" that Act, to the eflfect that where after the commence- ment of that Act {p), a tenant affixes to his holding any engine, machinery, fencing, or other fixture, or erects any building for which he is not under that Act or otherwise entitled to compensation, and which (/) West V. Blalcewuy, 2 M. & G. 729; Penry v. Brown, 2 Stark, 403. (m) 2 S. L. C. 1S2 ; 3 East, 38. (n) Sect. 3. (o) 46 & 47 Vict. c. 61, s. 34. Ip) I Jan. 1884. OF LANDLORD AND TENANT 73 is not SO aflixed in pursuance of some obligation in that behalf, or instead of some fixture belonging to the landlord, then such fixture or building shall be the property of and removable by the tenant before or within a reasonable time after the termination of the tenancy. Provided as follows : — i . Before the removal of any fixture the tenant shall pay all rent owing by him, and shall perform or satisfy all other his obligations to the landlord in respect of the holding. 2. In the removal of any fixture the tenant shall not do any avoidable damage to any other building or other part of the holding. 3. Immediately after the removal of any fixture the tenant shall make good all damage occasioned to any other building or other part of the holding by the removal. 4. The tenant shall not move any fixture without giving one month's previous notice in writing to the landlord of the in- tention of the tenant to remove it. 5. At any time before the expiration of the notice of removal, the land- lord by notice in writing given by him to the tenant may elect to purchase any fixture or building com- prised in the notice of removal, and any fixture or building thus elected to be purchased shall be left by the tenant, and shall become the property of the land- lord, who shall pay the tenant the fair value thereof to an incoming tenant of the holding ; and any difference as to the value shall be settled by a reference under that Act as in case of compensation, but without appeal (q). The most noticeable difference between this provi- Difference . , . , . ., TT-. , . between the sion and the one contained in 14 & 15 Vict. c. 25, is two foregoing that under the earlier statute only fixtures erected with Provisions, the consent in writing of the landlord can be removed, whilst no such consent is necessary under the latter. It must not be forgotten, however, that the operation (q) There was a provision almost identical with this in the now repealed Agricultural Holdings Act, 1875 (3^ ^ 39 Vict. c. 92, s. 53), but as a difference it may be noted that that Act specially exempted a steam-engine, unless previous notice of intention to erect had been given to the landlord and not objected to by him. 74 OF CONTRACTS AS TO LAND, AND HEREIN of the Agricultural Holdings Act, 1883 (except ns to compensation for unexhausted improvements (r) ), may- be excluded. The Act applies to all tenancies of an agricultuial or pastoral character, or partly one and partly the other, or wholly or partly cultivated as a market-garden ; but it does not apply to any holding let to a tenant during his continuance in any office, appointment, or employment held under the land- lord (s). On the sale or mortgage of land, fixtures pass without iiny special words. Mortgage of premises with fixtures thereon. Upon a sale or mortgage of land, fixtures will pass to the vendee or mortgagee in the absence of any con- trary intention ; and with regard to the question of whether a mortgage of land with fixtures requires to be registered as a bill of sale, it was prior to the Bills of Sale Act, 1878 (t), decided that it did so require, if the mortgagee had power given him to deal with the fixtures separately and apart from the land, but not unless (u). Now, however, by that Act it is definitely provided (x) that " personal chattels " (which are the things as to which registration is required) shall in- clude fixtures when separately assigned or charged by a distinct instrument, but not fixtures when assigned together with a freehold or leasehold interest in any land or building to which they are affixed, except trade machinery (y). And even as to trade machinery, it has been decided that if it is not specially mentioned, but merely passes as incidental to the conveyance of the premises, no registration is necessary {z). If, how- ever, it is specially mentioned, then it is otherwise (a). (r) 46 & 47 Vict. c. 61, s. 55. (s) Sect. 62. See also now the Market Gardeners' Compensation Act, 1895 (58 (fe 59 ^ict. 0. 27), as to market gardens. {t) 41 & 42 Vict. c. 31. {«) Ex parte Barclay, L. R. 9 Ch. App. 576 ; 43 L. J. Bk. 137 ; f.x parte Daglish, L. B. 8 Cli. App. 1072. On the law of fixtures generally, see Brown on Fixtures. (x) Sects. 4, 7. {y) See sect. 5, defining trade machinery. [z) Re Yates, Batchelor v. Yates, 38 Ch. D. 112 ; 57 L. J. Ch. 697 ; 59 L- T. 47. (a) Smnll V. National Provincial Bank of England, (1S94), I Ch. 686 ; 63 L. J. Ch. 270 ; 70 L. T. 492. OF LANDLORD AND TENANT. Tlie most apt and proper remedy of a landlord for Distress. the recovery from his tenant of the rent due is distress, which is a remedy by the act of the party, being the What it is. right the landlord has of entering and seizing goods for the purpose of liquidating the amount due to him, the word being derived from the Latin distringo. Besides a distress for rent, such a right also exists in the case of cattle taken damage feasant, and here the reason for the remedy is tolerably plain, because the distrainor may be said to be acting on the compulsion of the tres- pass, but in the case of the distress for rent the reason why it is allowed is by no means so clear. The following seem to be the requisites to the exer- Requisites to enable ^ ^ lord t train. <. , 1 J! 1 • i e L enable a land- cise oi the power of distress tor rent : — lord to dis- 1. There must be an actual demise, or an agreement for_a lease. If a tenant goes into possession under an agreement for a lease, and holds thereunder with- out any lease being actually granted, for all practical purposes the tenant is in the same position as if the lease had been made (&) ; his strict position, however, is, that when he first enters into possession he is, — not- withstanding his right to enforce the agreement, pro- vided that he has observed the conditions thereof on his part, — merely a tenant at will, but that as soon as he pays an annual rent, or the proportionate part of an annual rent, he becomes then strictly a tenant from year to year on such of the terms of the agreement as are applicable to a yearly tenancy (c). 2. The rent must be certain, that is, the premises must be let at a fixed rent id) ; for if the tenant hold (6) Walsh V. Lonsdale, 2i Ch. D. 9 ; 52 L. J. Ch, 2 ; 46 L. T. 858. (c) Coatsworth v. Johnson, 55 L. J. Q. B. 220 ; 54 L. T. 520 ; Swain V. Ayres, 21 Q. B. D. 289 ; 57 L. J. Q. B. 428 ; 36 W. R. 798. (fZ) A distress may be made for the whole rent reserved on a letting of furnished apartments, because in contemplation of law the rent issues out of the premises only, and not out of the furniture (Woodfall's Landlord and Tenant, 441). 76 OF CONTRACTS AS TO L:VND, AND HEREIN premises at a rent to be agreed on, or simply at their fair value, the landlord has no right of distress, but simply an action for use and occupation (e). 3. The rent must be in arrear ; and rent does not become due until the very end of the day on which it is payable ; but in the case of rent payable in advance, it has been decided to be in arrear directly the period for which it is payable commences (/). 4. The distrainor must have the j^eversion in lijm, either an actual reversion, or at the least a reversion by estoppel (g). Simpson v. Hartopp. All movable The general rule is that all movable chattels on chattels can ii-i • ^ y 1 • i>i t be distrained, the demised premises at the time or the distress are exciptio^ns. liable to be seized, whether they are the property of the tenant or of a stranger ; but this rule is subject to many exceptions. The leading case on the point of the exemption of things from distress is Simpson V. Hartopp (h) ; the case itself is only a direct decision to the effect that implements of trade are privileged from distress for rent, if they be in actual use at the time, or if there be any other sufficient distress on the premises ; but in the judgment is contained a summary of the authorities upon the matter generally. Instead of going into this case, it will be best to give a list of the principal things which at the present day are exempted from being taken in distress, and they are as follows : — Things ex- empted at the present day from being taken in distress. 1. Things in the personal use of a man. 2. Fixtures affixed to the freehold. (e) Woodfall's Landlord and Tenant, 405, 567. (/) Ex parte Hall, In re Bhiiis, i Ch. D. 285 ; 45 L. J. Bk. 21. (g) Brown, Law Diet. tit. Distress, p. 179. (h) I S. L. C. 463 ; Willes, 512. OF LANDLORD AND TENANT. ^7 3. Goods of a strauger delivered to the tenant to be wrought on in the way of his ordinary trade. 4. Perishable articles. 5. k.vi\mz\s, fercE natiirce. 6. Goods in custodia legis {%). 7. Instruments of a man's trade or profession (though not in actual use), if any other sufficient dis- tress can be found. 8. Beasts of the plough, instruments of husbandry, and beasts which improve the land, if any other suffi- cient distress can be found. 9. Live stock belonging to another person and taken in by the tenant to be fed at a price agreed on, if any other sufficient distress to be found ; and even if there is no other sufficient distress, they are only distrainable to the extent of the amount of the price agreed on for the feed remaining then unpaid, and the owner may redeem on paying this {k). 10. Agricultural or other machinery the hond fide property of a person other than the tenant, and only hired by the tenant {I). 1 I. Live stock of all kinds the hond fide property of a person other than the tenant, and on the tenant's premises solely for breeding purposes (m). 12. Loose money. (i) See hereon Ex parte Pollen's Trustees, In re Davis, 55 L. J. Q. B. 217 ; 34 W. R. 442 ; 54 L. T. 304. (k) 46 & 47 Vict. c. 61, 8. 45. (1) Ibid. (m) Ibid. 78 OF CONTRACTS AS TO LAND, AND HEREIN 13. Lodgers' goods (n). 14. Wearing apparel and bedding of the tenant and his family, and the tools and implements of his trade to the value oi £$ (0), Differeuce On the above the student's attention is particularly dfstresrand Called to the exception numbered 3, for the purpose execution as Qf j^jg observing the difference on that point between to goods of a ^ ^ stranger. an cxecution issued against goods and a distress. No goods of a stranger are liable to be taken in execution, but in distress they are so liable unless they have been delivered to be wrought upon in the course of the tenant's ordinary employment (p). Thus, if a book is lent, and a distress or an execution is put into the lendee's house, the book is liable to be taken in the distress though not in the execution ; but if the book is delivered to a bookbinder to be bound, it is not liable to be taken either in distress or execution, for here the bookbinder has it to work upon in the way of his ordinary calling. Again, upon this point the student must particularly notice the exception numbered i 3, being lodgers' goods. Lodger's goods A lodgcr's goods, being goods of a stranger, were never be^takeu^in liable to be taken in execution, but in the case of execution, distrcss tliev were formerly so liable ; and the excep- but could in *' , •' _ '■ distress. tion in this latter case is contained in the Lodgers' Provisions of Goods Protection Act, 1871 (q), which provides that Goods Pro- on any distress by a superior landlord upon a lodger's taction Act, . 1 871. (n) 34 & 35 Vict. c. 79. (0) 51 & 52 Vict. c. 21, s. 4; and see as to power of a court of summary jurisdiction to order return of goods in this case, 58 & 59 Vict. c. 24. See also further statutory exceptions, 6 & 7 Vict. c. 40, s. 18. as to hired machines in factories, and 35 & 36 Vict. c. 50, s. 3, as to roUins; stock ; and see hereon Easton Estate Company v. Western Waggon Co., 50 L. T. 735 ; 50 J. P. 790. For the purpose of compari- son note the following list of things exempt from being taken in exe- cution : — I. Wearing appai-el and bedding and implements of trade of any judgment debtor not exceeding ,^5. 2. Goods of a stranger. 3. Goods m custoclia legis. 4. Fixtures affixed to the freehold. 5. (In the case of an elegit) advowson in gross and glebe land. (p) Clark V, Millwall Dock Co., 17 Q. B. D. 494 ; 55 L. J. Q. B. 378 ; 54 L. T. 814. (9) 34 & 35 Vict. c. 79. OF LANDLORD AND TENANT. 79 furniture or goods for rent due to the landlord from his immediate tenant, the lodger may serve the land- lord or his bailiff with a declaration (r) (to which must be annexed an inventory of the furniture) that the immediate tenant has no property or beneficial interest in the goods, and that the same are the property of him, the lodger, and also setting forth whether any and what rent is due from the lodger to his immediate landlord, and the lodger may pay to the superior landlord, or his bailiff, the rent (if any) so due, or so much of it as may be sufficient to discharge the claim of such superior landlord ; and if the landlord proceeds with the distress after the tenant has complied with these provisions, he is to be guilty of an illegal dis- tress ; and the lodger may apply to a justice of the peace for restoration of the goods. The question of -wnmt consti- whether the relationship of landlord and lodger actually ^^^^^ ^ lodger, exists is one of fact (s), the general rule being that to constitute a person a lodger there must be a possession or control retained over the premises by the landlord, e.g. having a room in the house (t). If a landlord takes a bill, note, or bond for his rent, iMii or note this is no extinguishment of his original right to the dirnS™* rent, for the rent is of a higher nature than either of tiuguish the ,, -i- / \ 1 • 1 ■, , right of dis- those securities (%) ; but it has recently been held that tress. if a landlord take a bill of exchange for rent due, that fact is evidence from which a jury may infer an agree- ment by the landlord to suspend his right of distress during the currency of the bill (x). If, therefore, a landlord take a bill or note for his rent, it appears (r) As to the sufficiency of the declaration see Thwaites v. Wilding, 12 Q. B. D. 4 ; 53 L. J. Q. B. I ; 32 W. R. So ; 49 L. T. 396 ; Ex parte Harris, 34 W. K. 132 ; 50 J. P. 7. (s) Ness V. Hephenson, 9 Q. B. D. 245 ; 47 J. P. 134. (0 Philips V. Benson, 3 C. P. D. 26 ; 47 L. J. C. P. 273 ; 3Iavtin V. Palmer, 50 L. J. Q. E. 7 ; 30 W. R. 1 15 ; Ness v. Stephenson, supra ; see also Htawood v. Bone, 13 Q. B. D. 179; 32 W. R. 752 • 51 L T 125. («) Harris v. Shipway, and Etver v. Lady Clifton, Bui. X. P. 1S2. (x) Palmer v. Bradley, (1895), 2 Q. B. 405. 8o OF CONTKACTS AS TO LAND, AND HEREIN that he cannot safely distrain during its currency, but that upon its dishonour he may do so. Semayne^s Case. Maxim : castle. It is said that "every man's house is his castle" (?/), and therefore to make a distress, the landlord or his ''Every man 3 j^^jiiff must not break the house, and by breaking the house 13 his ' '' ° house is meant not only the forcing open the door, but even the opening of an unbolted window, though if the window is already partially open it is justifiable to open it further to efi'ect an entrance (z). And where a landlord's bailiff, being employed to distrain for rent, climbed over a wall surrounding the yard of the house, and entered the house by an open window, it was held that the climbing over the wall was not illegal, and that the distress was lawful (a). A landlord, in making a distress, is justified in opening an outer door in the way in which other persons are accustomed to use it ; and when entry has once properly been obtained into a house, inner doors may be forced open. If a dis- trainor, having properly entered, is afterwards turned out of possession, he has a right to break the house to re-enter (b). Provisions of statute of Richard II. It was formerly considered that if a tenant gave his landlord special leave and licence to break and enter premises, this would justify the landlord in so doing ; but the law must now be taken to be otherwise by reason of recent decisions on the effect of an old statute of the reign of Eichard II. (c), which enacts as follows : (y) Semayne's Case, i S. L. C. 115 ; 5 Coke, 91. (z) Crabtree v. Robinson, 15 Q. B. D. 312 ; 54 L. J. Q. B. 544; 33 W. R. 936. (a) Long v. Clarke, (1894), i Q. B. 119; 63 L. J. Q. P. 108 ; 69 L. T. 654. (6) See hereon notes to Semayne's Case, I S. L. C. 125. The principle of Semayne's Case applies equally to the levying of executions, but note that in executing a writ of attachment for contempt of court, the officer charged with the execution of the writ may break open even an outer door to execute it : Harvey v. Harvey, 26 Ch. D. 644 ; 51 L. T. 508 ; 33 W. R. 76 ; 48 J. P. 468. (c) 5 Rich. 2, St. I, c. 8. OF LANDLORD AND TENANT. 8 1 " And also the king enjoineth that none from hence- forth make entry into any lands and tenements but in case where entry is given by law, and in such case not with strong hand nor with multitude of people, but only in lawful, peaceable, and easy manner. And if any man from henceforth do to the contrary, and thereof be duly convicted, he shall be punished by imprisonment of his body, and thereof be ransomed at the king's will." On this statute it has been held that any leave and licence to break and enter premises is void in its inception, and that any forcible ejection by the act of the party is illegal (d). A landlord can, if his title still continues, and the A lan.llor.i .,, . . ,. , . - J e 1 may distrain tenant is still in possession, distrain for rent after tlie after exi.ira- expiration of the lease, provided he makes the distress *'°^°^g^^*^g^.^' within six months of such expiration (c). An executor cutor or admi- . . ' . . . ,., nistrator may or administrator of any lessor may distrain in like distmin. manner for rent as his testator or intestate might have done, but such distress must be within six calendar months after the determination of the term or lease (/). It is provided by statute (j), that if a tenant fraudu- Landlord nmy lently or clandestinely removes his goods after rent ciaildesfhieiy has become due, in order to avoid their being seized removed by ' . . , tenant. in a distress, the landlord may, if there is not a suffi- cient amount of other distrainable property left, within thirty days follow and distrain on the goods if they have not been sold bond fide for value and without notice in the meantime, and a penalty for such an act may be recovered of double the value of the goods. A landlord is not, under this provision, justified \n. 321 ; 49 L. .J. C. P. 698 ; 29 W. Ft. 139. (x) See Dixon v. Yates, 5 B. & Ad. 313 ; Campbell on the Law of Sale of Goods, 277. [y) Benjamin's Sale of Personal Property, 319 ; Campbell on the Law of Sale of Goods, 230. AND HEREIN OF BAILMENTiS. 97 appropriation is complete and the property has passed. But if in such a case the contract was that the vendor should load them on the purchaser's cart, here the right of appropriation would be in the vendor, for the first act is to be done by him ; and in all cases of appropriation by the vendor such appropriation must be assented to by the vendee before the property will pass ; but if it is made in pursuance of and as a term of the contract, the assent is presumed, and it is con- clusive (z). In the case also of a contract to make when the any article (though an action would of course lie for p^ssSn goods the breach of the contract), the property therein will ^<* ^^ i"'»<^« not pass until there has been a subsequent appropria-i tion thereof made by the vendor, and such appropria-; tion has been assented to by the purchaser. And so also a grant of goods not in existence, or not belong- ing either actually or potentially to the grantor at the time, is of no effect unless the grant is afterwards in some way ratified by him after acquiring a property in them (a). The mere fact of the price not being mentioned in the contract does not prevent the pro- perty passing, for it may be either a price to be thereafter agreed on, or determined in the course of dealing between the parties, or what the things are reasonably worth (b). If, however, there is an agree- ment to sell goods at a price to be fixed by the valua- tion of a third party who cannot or does not make such valuation, then the agreement is avoided, except that if the goods, or any part of them, have been delivered to and appropriated by the buyer, he must pay a reason- able price for them. If, however, such third party is prevented from making the valuation by the fault of the seller or buyer, the party not in fault may maintain an action for damages against the party in fault (c). (2) Benjamin's Sale of PersDnal Property, 319, 320. (a) Boblnson v. Macdonnel, 5 M. & S. 228. lb) 56 & 57 Vict. c. 71, 8. 8; Acebal v. Levy, 10 Bing. 376; Hoadly v. M'Laine, 10 Bing. 482 ; Joyce v. Swann, 17 C. B. N. S. 84. (c) 56 & 57 Vict. 0. 71, s. 8. G 98 OF CONTRACTS AS TO GOODS, Keservation of right of disposal. The Sale of Goods Act, 1893, also provides (d) that on any contract for the sale of goods the seller may specially reserve the right of disposal of the goods until certain conditions are fulfilled, and in such a case, notwithstanding the delivery of the goods to the buyer, the property does not pass until the conditions are ful- filled. Thus, when goods are shipped, and by the bill of lading the goods are deliverable to the order of the seller or agent, the seller is primd facie deemed to re- serve the right of disposal (e) ; and when the seller of goods draws on the buyer for the price and transmits the bill of exchange and bill of lading to the buyer together, to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honour the bill of exchange, and if he wrongfully retains the bill of lading the property in the goods does not pass to him (/). General Upou the question of when the property in goods question of passes, it will be found that it is a fairly correct ^^^'^ d'"'^^^'^^^' answer to say that, as a general rule, the property ivill passes. pass where there is a valid and comjjlcte contract, provided that the goods are in existence, and no act remains to be done to them, or the vendee has acquired possession of the goods (g). The effect of floods perish- ing. Where there is a contract for the sale of specific goods, and the goods, without the knowledge of the seller, have perished at the time when the contract is made, the contract is void (h) ; and where there is an agreement to sell specific goods, and subsequently the goods, without any fault of the buyer or seller, perish before the risk passes to the buyer, the agreement is there- by avoided (i). id) 56 & 57 Vict. c. 71, s. 19 (i). (c) Sect. 19 (2). (/) Sect. 19 (3). ig) See hereon Campbell on the Law of Sale of Goods, 225-274. (h) 56 & 57 Vict. c. 71, s. 6. (i) Sect. 7. AND HEREIN OF BAILMENTS. 99 Contracts as to goods are in many cases required by statute to be by writing. By the 4th section of the Statute of Frauds (^0 it is 4th section of ., , 7 • 1 1, 1 1 T 11. statute of provided that no action shall be brought whereby to Frauds as charge any defendant upon {inter alia) any contract i!/,'/,tracfs for n^T.0 be performed within one year from the making sale of goods, thereof. This section has already been discussed (/), and with regard to this portion of it, it is sufficient here to say that, applying to all contracts not to be per- formed within a year, it includes contracts as to goods. With regard, however, specially to contracts for the sale ■0^ goods, the 1 7th section of the Statute of Frauds, and the amendment thereof contained in the 7th section •of Lord Tenterden's Act (//?), were until lately the im- portant enactments, but these provisions have been re- pealed and substantially re-enacted by the Sale of Goods Act, 1893 (sect. 4), which provides as follows: — ( I .) A contract for the sale of any goods of the value ^:>le of Goods ■0*^ y^ I O or upwards shall not be enforceable by action 4, in subs'titu- unless the buyer shall accept part of the goods so sold, g^^° ofVtatute and actually receive the same, or give something in "^ Frauds as ■; . ^ , ' . ° ^ amended by earnest to bind the contract, or in part payment, or Lord Tenter- unless some note or memorandum in writing of the ^° * '^^' contract be made, and signed by the party to be charged, ■or his agent in that behalf. (2.) Tlie provisions of this section apply to every such contract, although the goods may be intended to be delivered at some future time, or may not at the time i of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requi- site for the making or completing thereof or rendering the same fit for delivery. (t) 29 Car. 2, c. 3. {I) Ante, pp. 48, 49. (m) 9 Geo. 4, c. 14, s. 7. TOO OF CON TRACTS AS TO GOODS, (3.) There is an acceptance of the goods within the meaning of this section when the buyer does any act in relation to the goods which recognizes a pre-existing contract of sale, whether there be an acceptance in per- formance of the contract or not. Writing not absolutely necessary. The memorandum required as sufficient evidence of a contract has been before touched on in treating of the Statute of Frauds generally (n). What has been there remarked is equalh^ applicable to the 4th section of the Sale of Goods Act, 1893, ^^^^ ^'^^ student will note that writing is not under that enactment an absolute essential (as neither was it under the i /th section of the Statute of Frauds), as there may be instead either part payment, earnest, or acceptance and receipt. Distinction between ear- nest and parr payment. Earnest is a matter quite distinct from part payment, being some gift or token given by a buyer to a seller, not on account, but quite irrespective of the price ; part payment is simply an actual payment of money on account of the price. The giving of earnest is not a course adopted often now. though, of course, part payment is frequently (o). What will On the point of part payment or earnest, it may 'earne^t*or ^^ noticed that an actual payment is necessary, so part payment, ^jjat what is called in the north of England " striking off" a bargain, i.e. drawing the edge of a shilling over the hand of the vendor and not paying him the money, is not sufficient (j)) ; but delivery of a bill of exchange or promissory note is, because it amounts to payment until dishonoured (q). (n) Ante, pp. 56, 57. (0) See Benjamin's Sale of Personal Property, 172, 173; Campbell on the Law of Sale of Goods, 195 ; Ilotve v. Smith, 27 Ch. D. 89 ; 32 W. R. 302 ; 53 L. J. Ch. 1055 ; 50 L. T. 373. (p) Blenkmsop v. Clayton. 7 Taunt. 597. (q) Chambcrlyn v. Delarive, 2 Wils. 253 ; see Benjamin's Sale of Personal Property, 175. AND HEREIN OF BAILMENTS. lOI The acceptance and receipt require a sli<>;htly more As to accu))t- detailed explanation. receipt. The words of the statute are, " accept part of the Recognition of J ij 1 i. 11 • ii, "1 -4. *'"* •contract goods so sold and actually receive the same ; and it le.mired. is provided that there is to be a sufficient accept- ance when the buyer does any act in relation to the goods which recognizes a pre-existing contract of sale, whether there is an acceptance in performance of the contract or not : thus there may be an acceptance and receipt as evidentiary matter to satisfy the statute, although the buyer may still have the right to reject the goods as not in accordance with sample. The enactment is well illustrated by the case of Page v. Poyex. Mor- Morgan (r). There the plaintiff had sold to the ^""' defendant certain wheat which was put into a barge and sent to the defendant's mill, where it arrived in the evening, and on the following morning was, by order of the defendant's foreman, taken into the mill and there examined with the sample. The defendant then rejected it as not being equal to sample, and it was put back into the barge and remained there for some weeks, when it was sold by order of the court. It w^as not the custom at the defendant's mill to examine wheat whilst it was in the barges. The plaintiff sued to recover damages from the defendant for not accepting the wheat, and the defendant objected that the requirements of the 17th section of the Statute of Frauds had not been complied with, and the judge directed the jury that the taking of the wheat into the mill to see if it was equal to sample constituted " acceptance and receipt " to satisfy the statute. The Divisional Court, and subsequently tlie Court of Appeal, upheld this direction, laying down that what is required by the statute is a recognition 1 of the contract, and that though acceptance and receipt are two distinct things, yet receipt under such cir- (r) 15 Q. ]?. 1). 228 ; 54 L. .1. Q. B. 434 : 53 L. T. 126: 33 W. K. 793. I02 OF CONTRACTS AS TO GOODS, cumstances as to import a recognition of a contract is also the acceptance contemplated by tlie statute (s). Every delivery TMs case appears to be an exact illustration of what is meant by the enactment on the subject in the Sale of Goods Act, 1893; but notwithstanding this, the student must not think that every mere delivery is sufficient, for there may be many a delivery without there being in an\^ way a recognition of the contract, and that is what is wanted (t). However clearly the principle may be put, it must ever in some cases be difficult of application. Summary on this point. Sales by auction. To endeavour to sum up an answer to the question of what will amount to a sufficient " acceptance and actual receipt " within the statute, we shall be tolerably correct in stating that there must he a delivery actual or constructive, and the vendee must hy his acts, either 'prior to or conteinporaneoiisly loith the rcccii^t, have signified his acceptance in some loay, hut that what is or is not an acceptance is a question, princijyally of fact, depending on the different ciorumstances of each particular case, and that all that is recdly required is an admission or recog- nition of the contract. Where goods are sold not by private contract but by auction, the sale is complete when the auctioneer's hammer falls, and until then a bidder may retract his bid. A sale by auction may be notified to be subject to a reserved or upset price, and a right to bid may also be expressly reserved, in which case, but not otherwise, the seller or any person may bid at the auction. Subject to this, it is not lawful for the seller to bid or to employ persons to bid at the sale, and if the seller or some one on his behalf does so bid, the sale may be held as fraudulent by the buyer (ii). (s) See also KibUc v. Gouqh, 38 L. T. (N. S.) 206 ; Morton v. Tihbitt, 15 Q. B. 428; 19 L. J. Q. B. 328; and the very recent case of Abbott V. Wolsey, (1895), 2 Q. B. 97 ; 64 L. J. Q. B. 587 ; 72 L. T. 581 ; 43 W. R. 513. {t) Taylor V. Smith, {i^<)t,), 2 Q. B. 65 ; 61 L. J. Q. B. 331 ; 67 L. T. 39. (m) 56 & 57 Vict. c. 71, .«. 58. ' AND HEREIN OF BAILMENTS. IQ3 The vendor of goods may maintain an action against Remedies of the vendee to recover their price where the property purchaser, has passed to the buyer, who wrongfully neglects or refuses to pay for the goods according to the contract ; and where under a contract for sale the price is payable on a day certain irrespective of delivery, and the buyer wrongfully neglects or refuses to pay such price, the seller may also maintain an action for the price, although the property in the goods has not passed and the goods have not been appropriated to the contract (x). In other cases, where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages (//). Where the seller wrongfully neglects or refuses to deliver goods contracted to be sold, the buyer may maintain an action against the seller for damages for non- delivery (z), but the vendee before he can sue for non- delivery of the goods must have paid or tendered the price, unless some period of credit was agreed upon, I for, subject to this, the vendor has a lien upon them for the price until actual possession by the vendee (a). A lien may be defined as a qualified right of property Definition which a person has in a thing arising from such person having a claim upon its owner (b) ; and it may be either general, e.g. the right of a solicitor to retain his client's papers for a general balance due to him, or 'particular, e.g. the ordinary right of a vendor to retain particular goods until payment of their price. The law leans in favour of a particular, but against a general lien, which will only be allowed when there is a custom or contract to justify it. The lien in both cases can only be commensurate with the interest of the person through whom it arises, and it may be lost by the How lien loat. vendor taking a security for payment, e.g. a bill of {x) 56 & 57 Vict. c. 71, s. 49. (2/) Sect. 50. (2) Sect. 51. As to getting specific delivery of the goods themselves, .see post, p. 109. As to the measure of damages, see post, part iii. oh. i. (a) Sect. 39. (6) Brown's Law Diet. 318. 104 OF CONTKACTS AS TO GOODS, exchange or promissory note ; but if such instrument is dishonoured, the right of lien will revive if the instrument is still in the hands of the vendor, though not if outstanding in a third person's hands (c). Where goods are sold expressly on credit, though, as has been already stated, the vendor has no right of sold on'credit. Hen, yet if, before delivery of the goods, the vendee becomes insolvent, the vendor may refuse to deliver, and may withhold them until payment ; and if the vendee of goods sold on credit permits them to remain in the vendor's possession till the period of credit has expired, the right of lien revives and attaches (d). No lieu generally where good A lieu cau only fxht be- fore delivery. A lien can, of course, only exist before the goods have been delivered to the purchaser (e), but the mere marking by the purchaser of goods remaining in the vendor's possession, or putting his name upon them, or other like acts, will not constitute a delivery suffi- cient to deprive the vendor of his right of lien (/). When an unpaid vendor has made part delivery of the goods, he may exercise his right of lien on the remainder, unless such part delivery has been made under such circumstances as to shew an agreement to waive the lien (ff). A lieu is a A lien is a right of a passive nature, and does not passive right, j* -i i> j^i • i, ■ i,i. except in the Ordinarily confer on the person possessing such right case of an inn- ^ny power to Sell the goods {h). But an unpaid vendor of goods has a right of re-sale in certain cases, as presently mentioned (i) ; and as regards an innkeeper, it has been provided by the Innkeepers' Act, 1878 (j), (c) Cliitty on Contracts, 473, 475 ; Gunn v. Bolckou; L. R. 10 Ch. App. 491 ; 44 L. J. Ch. 732. [d) 56 & 57 Vict. c. 71, s. 41. {e) Sect. 43. (/) Dixon V. Yates, 5 B. & Ad. 313; Marvin v. Wallace, 25 L. J. iQ. B.)369. ((f) 56 & 57 Vict. 0. 71, s, 42. (h) Per Aldersnn, B., White v. Spettitjiie, 13 M. & W. 60S. (i) See post, p. 107. \ji) 41 & 42 Vict. c. 38. AND HEREIN OF BAILMENTS. • IO5 that if n guest shall become indebted to him, and shall deposit or leave any personal effects with him or in his inn or adjacent premises for the space of six weeks, the innkeeper, after having advertised a month pre- viously in one London newspaper and one country newspaper circulating in the district a notice describing the goods, and giving (if known) the name of the owner or person who deposited the goods, and of his inten- tion to sell, may duly sell the same by public auction. Any surplus after paying the debts and expenses is to be paid to the person who left or deposited such goods. To a certain extent also a solicitor has, under the And in one provisions of the Solicitors' Act, i860 {k), a lien of an solicitor. active kind, as mentioned hereafter (I). Closely akin to the right of lien is a further right of Definition of 1 T ^ T • • J -J 1 ■ 1 • stoppage rn the vendor of goods, viz., stoppage m transitu, which is transitu. the prevention of wrong by a mere personal act, being the right of the vendor to stop the goods after they have left his possession, but are in course of transit to the vendee, on hearing of the vendee's bankruptcy or insol-1 vency (m). The doctrine of stoppage in transitu seems The doctrine to have been borrowed from equity (71), and the right, equity. as its name imports, only exists while the goods are in transit, and directly they come into the actual or constructive possession of the vendee the right is gone. It is not always easy to decide whether goods are in transitu or not, for there may be cases of constructive possession of the vendee not always very apparent. The subject is now dealt with by the Sale of Goods Act,] Duration of 1893, which (embodying the result of a number of^ decisions now unnecessary to be referred to) enacts as| follows : — (k) 23 & 24 Vict. c. 127, ?. 28. {I) Post, p. 218. (m) 56 & 57 Vict. c. 71, .s. 44. {n) Wiseman v. Vandcrput, 2 Verii. 203, seems to be the first case in which it was acted upon. The doctrine was clearly established by Liekbarrow v. Mason, I S. L. C. 737 ; 2 T. R. 93. 106 OF CONTRACTS AS TO GOODS, ( I .) Goods are deemed to be in course of transit from the time when they are delivered to a carrier by land or water, or other bailee, for the purpose of transmission to the buyer, until the buyer, or his agent in that be- half, takes delivery of them from such carrier or other bailee. (2.) If the buyer or his agent in that behalf obtains delivery of the goods before their arrival at the appointed destination, the transit is at an end. (3.) If, after the arrival of the goods at the appointed destination, the carrier or other bailee acknowledges to the buyer or his agent that he holds the goods on his behalf, and continues in possession of them as bailee for the buyer or his agent, the transit is at an end, and it is immaterial that a further destination for the goods may have been indicated by the buyer. (4.) If the goods are rejected by the buyer, and the carrier or other bailee continues in possession of them, the transit is not deemed to be at an end, even if the seller has refused to receive them back. (5 .) When goods are delivered to a ship chartered by the buyer, it is a question depending on the circum- stances of the particular case whether they are in the possession of the master as a carrier or as agent to the buyer. (6.) Where the carrier or other bailee wrongfully refuses to deliver the goods to the buyer, or his agent in that behalf, the transit is deemed to be at an end. [ (7.) Where part delivery of the goods has been made to the buyer, or his agent in that behalf, the remainder of the goods may be stopped in transitu, unless such part delivery has been made under such circumstances AND IIKKKIN OF B.VILMKNTS. IO7 as to show an agreement to give up possession of the whole of the goods (0). For the vendor to exercise the right of stoppage m Ho^^tbe _^ transitu it is not essential that he should actually seize transitu may , 00 ^ ^ \. • ■ ''S effected. the goods, but the stoppage may be effected by givmg a notice to the carrier or other forwarding agent. If a servant of the carrier is conveying the goods, notice may be given to tlie servant or tlie principal; but if to the principal, it must be given in time to enable him to inform the servant before he delivers them {p). Notice of stoppage in transitu given to a shipowner imposes no duty on him to communicate the notice to the master of the ship, and the notice is not effectual until it is communicated to the master {q). The mere exercise of a rvj\\t of lien or a right of Effect of exer- ^ _ else or right or stoppage in transitu by an unpaid vendor does not lien or stop- rescind the contract of sale (r), although where an ^tramih<. unpaid vendor has exercised such a right and re-sells the goods, a buyer (taking lond fide without notice) acquires a good title as against the original buyer (.s). This, of course, means notwithstanding the vendor has, in fact, no such right to re-sell ; but although the contract is not rescinded, he has such a right of re-sale Right of re- where the goods are perishable, or where he has given notice to tlie buyer of his intention to re-sell, and the buyer has not within a reasonable time paid or tendered the price (/)• And where the vendor has expressly reserved a right of re-sale in case the buyer makes default, and on such a default he accordingly re-sells, (o) 56 & 57 Vict. c. 71, s. 45. (p) 56 & 57 Vict. c. 71, s. 46. [q) Ex parte FaJk, In re Kiell, 14 Ch. D. 446 ; 28 W. R. 785 : 42 L. T. 780. Affirmed in House of Lords, suh nom. Kemp v. Folk; 7 App. Cas. 573 ; 52 L. J. Ch. 167 ; 31 W. R. 125 ; 47 L. T. 454. (r) 56 & 57 Vict. c. 71, s. 48 (i)- This enactment is; in accordance with the opinion expressed in Wentvorth v. Outhvxtite, lO M. & W. 451- (s) 56 & 57 Vict. c. 71, s. 48 (2). (0 Sect. 4S 13). ro8 OF CONTRACTS AS TO GOODS, the original contract is in that case rescinded, but without prejudice to any claim the vendor may have for damages (it). Kffect cif sale oi goods iluring course «>f transit. As to right against a sub- purchaser. If, whilst the goods are in course of transit and yet unpaid for, the buyer sells them to another without the vendor's consent, the right of stoppnge in transitv nevertheless remains in the vendor, subject to this, that if a document of title to the goods, e.g. a bill of lading (x), has been lawfully transferred to the buyer, who transfers such document to a person who takes the same in good faith and for valuable consideration, then if such last-mentioned transfer was by way of sale, the unpaid vendor's right is defeated, and if by way of pledge or other disposition for value, the vendor's right can only be exercised subject to the rights of the transferee {y). It will be observed that in the case of sale accompanied by a transfer of the bill of lading or other document of title, the vendor's right is absolutely defeated, and there- fore, even if the sub-purchase-money has not been paid, it appears that the unpaid vendor has no right to intercept that, or a sufficient ])art of it, to satisfy what is owing to him. The contrary was decided before the Act {£), but those decisions were dissented from by Lord Selborne in Kcm]) v. Falk (a), and Lord Selborne's opinion has apparently been adopted by the Sale of Goods Act, 1893, which, as (u) 56 & 57 Vict. c. 71, s. 48 (4). (x) Any bill of lulling, dock warrant, warehouse keeper's certificate, and warrant or order for the delivery of goods, and any other docu ment used in the ordinary course of business as proof of the possession or control of goods, and authorising or purporting to authorise, either by indorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented, is a " document of title " (56 & 57 Vict. c. 71, s. 62 ; 52 & 53 Vict. c. 45, .s. i (4)). <>j) 56 & 57 Vict. c. 71, s. 47. This enactment embodies the effect of the case of Lichbarrow v. Mason (i S. L. C. 737) and the Factors' Act, 1S89 (52 & 53 Vict. c. 45, s. 10). (-) Ex parte Goldinq, 13 Ch. D. 628 ; 42 L. T. 220 ; 48 W. R 481 : Ex parte Palk, 14 Ch.D. 446 ; 42 L. T. 780 ; 28 W. R. 785. (a) 7 App. Cas. 573 ; 52 L. J. Ch. 167 ; 31 W. R. 325 ; 47 L. T. 454. AND HEKEIN OF 15AILMKNTS. IO9 above stated, speaks of the vendor's right as being defeated (b). The respective rights of the vendor and purchaser Specific i)ei- of goods on breach of a contract for the sale of goods contract t.. have already been noticed (e), but in addition it is '^'"'^ S'>"fi^- provided by the Sale of Goods Act, 1893 (d), that <^ in any action for breach of contract to deliver specific or ascertained goods, the court may, if it thinks fit, on the application of the plaintiff, by its judgment or decree direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages. The ' judgment or decree may be unconditional, or upon such terms and conditions as to damages, payment of price, and otherwise as to the court may seem just, and the application by the plaintiff may be made at any time before judgment or decree. A warranty is sometimes given by a vendor of Detinition of goods on their sale. A warranty is defined as g^j^ ■'^^'^"^" y- agreement with reference to goods which are the sub- ject of a contract of sale, but collateral to the main purpose of such contract, the breach of which gives rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated (e). A warranty must be carefully distinguished both from Distinctions a condition and from misrepresentation. A warranty ^*^'^^®" ^ _ -^ warrant)', is made contemporaneously with the contract, and its condition, and breach does not vitiate the contract, but the buyer may tion. set up against the seller the breach of warranty in diminution or extinction of the price, or may maintain an action against the seller for damages for the breach {b) See Ker and Pearson-Gee's Sale of Goods Act, 1893, P- -^-• (c) Ante, p. 103. (d) 56 & 57 Vict. c. 71, s. 52. This is jlmost identical with the former provision of 19 & 20 Vict. c. 97, s. 2. {e) 56 & 57 Vict. c. 71, s. 62. no OF CONTRACTS AS TO GOODS, of warranty, and if necessary he has both such rights (/). A condition is, however, an essential term of a con- tract, a breach of which entitles the buyer to reject the soods and treat the contract as at an end. It is not always easy to determine whether a certain term in a contract is a warranty or a condition, and, as was stated in a recent case, " There is no way of deciding the question except by looking at the contract in the light of the surrounding circumstances, and then making up one's mind whether the intention of the parties will best be carried out by treating the promise as a warranty, sounding only in damages, or as a con- dition precedent, by the faiUire to periorm which the Provisions of Other party is relieved of his liability " (a). This is A'^ct*,i893,°as to substantially the effect also of the provisions upon the conditions and gubject uow contained in the Sale of Goods Act, i 893 (A), warranties. ^ i ^ ^ \ /> which enacts that the matter must depend in each case on the construction of the contract, and that a stipulation may be a condition, though called a warranty in the contract. It is also provided by this statute (i), that where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer may waive the condition, or may elect to treat the breach of such condition as a breach of warranty, and not as a ground for its repudiation ; and that where a contract of sale is not severable, and the buyer has accepted the goods or part thereof, or where the con- tract is for specific goods, the property in which has passed to the buyer, the breach of any contract to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as repudiated, unless there be a term of the contract, express or implied, to (/) Sect. 53. (g) Per Bowen, L. J., in Bentsen v. Taylor, (1893), 2 Q. B. 274 ; 63 L. J. Q. B. 15 ; 69 L. T. 487. See also on the distinction between warranty and condition, Behn v. Burness, 3 B. & S. 751 ; 32 L. J. Q. B. 204. (A) 56 & 57 Vict. c. 71, s. II. (i) Ibid. AND HEKEIN OF BAILMENTS. II J that effect. As regards misrepresentation, that is a Misrepreseuta- matter that precedes and induces the contract, and '**"■ gives the person to whom it is made the right to repudiate it. On an express warranty, it must be noticed that if "Warranty made subsequently to the contract, it will be void and saie'bad!"*^ ^'^ of no effect for want of consideration {k) ; and as to what will, and what will not, amount to a warranty, AVhat will the rule at the present day has been well stated to be aT"ranty. that " every affirmation at the time of sale of personal chattels is a warranty, provided it appears to have been so intended " (I). It would appear, upon this rule, that the well-known case of Chandelor v. Lopus (m) would chanddor v. now be decided differently, for there, on the sale of a ^''^*- stone, it was affirmed that it was a bezoar stone, and yet it was held no action lay. However, if, on any contract for sale, the words used are merely the ordinary puffiug of the articles, no action will lie ; and though the above rule is plain, yet the most that can be said on it is that it must be a question of intention in each particular case. As an instance of an implied warranty implied may be mentioned the fact that on the sale of certain '^■'"'*'^"*y- goods there is an implied warranty that they exist and are capable of transfer ; and again an implied warranty may arise sometimes by the mere custom or usage of some particular trade or business, or from the necessities of the case. Implied warranty is in all cases founded on the presumed intention of the parties and on reason. The implication which the law draws from what must obviously have been the intention of the parties is drawn with the object of giving efficacy to the trans- action, and preventing such a failure of consideration as cannot have been within the contemplation of either side. Probably in all cases of implied warranties it will be found that the law is raising an implication (fc) Roscorla v. Thomas, 3 Q. B, 234. (I) Per Buller, J., in Pasley v. FrecTnan, 3 T. R. 37. (m) I S. L. C. 186; 2 Coke, 2. 112 OF CONTRACTS AS TO GOODS, from the presumed intention of the parties, with the object of giving to the transaction such efficacy as both parties must have intended that at all events it should have (n). Warranty of title. As to warranty of quantity. Where a person sells goods, unless the circum- stances of the case show a contrary intention (o), he impliedly undertakes that he has a right to sell the goods — that is, that he has a good title thereto, and that the buyer shall have and enjoy quiet possession of the goods, free from any charge or incumbrance in favour of any third party, not declared or known to the buyer (p). On a sale of goods words may be used which will amount to a warranty of quantity, but many cases of statement as to quantity amount to nothing more than words of estimate or expectancy (q). Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them ; but if he accepts the goods so delivered, he must pay for them at tiie contract rate ; and if the seller delivers a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the con- tract and reject the rest, or he may reject the whole, or he may accept the whole of the goods so delivered, in which case he must pay for them at the contract rate (r). Warranty of quality, &c. There is, generally, no implied condition or warranty of the quality of goods, the maxim of caveat emptor (n) Per Bowen, L. J., in The Moorcock, 14 P.^D. 64 ; 58 L. J. P. 73 ; 60 L. T. 654. (0) As, for example, a sale by a sheriff, who is only bound by an implied warranty that he is not aware of any defect of title : Peto v. Blades, 5 Taunt. 657. (p) 56 & 57 Vict. c. 71, s. 12. (q) See M'La>/ v. Pei^ry, 44 L. T. 152. (r) 56 & 57 Vict. c. 71, s. 30. AND HEKEIN OV BAILMENTS. (let the buyer beware) applying (s) ; but to this general rule there are various exceptions, the chief of which are as follows : — 1. Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description (f). 2. Where the buyer expressly or by implication made known to the seller the particular purpose for which the goods are required, so as to show that he relies on the seller's skill or judgment, and the goods are of a description which it is the course of the seller's business to supply, there is an implied con- dition that the goods shall be reasonably fit for such purpose (u). 3. Where goods are bought by description from a seller who deals in goods of that description, there is an implied condition that they shall be of merchant- able quality, subject to this, that if the buyer has examined the goods, there is no implied condition as regards defects which such examination ought to have revealed (x). 4. Where goods are sold by sample, there are implied conditions that the bulk shall correspond with the sample in quality, that the buyer shall have a reason- able opportunity of comparing the bulk with the sample, and that the goods shall be free from any defect rendering them unmerchantable, which would not be apparent on reasonable examination of the sample (y). (s) 56 & 57 Vict. c. 71, s. 14. {t) Sect. 13. {u) Sect. 14. {x) Sect. 14. (2/) Sect. 15. H 113 114 ^^ CONTKACTS AS TO GOODS, 5. Where any article is sold with a trade-mark, label, or ticket, &c., thereon, or any statement thereon of the weight, quantity, or quality tliereof, a warranty is implied that the trade-mark, label, or ticket, &c., is genuine and true, and that any such statement is not in any material respect false, unless the con- trary is expressed in writing, signed by or on behalf of the vendor, and delivered to and accepted by the vendee (s). A wananty If a fact is kuowu to a purchaser at the time of S to* ^"^ the sale, or might have been so known to him (take, apparent £qj. instance, the familiar example of a horse being warranted sound, and wanting an ear or a tail), a warranty will not protect the purchaser (a) ; and where an article is sold expressly " with all faults," the only case of defect for which the purchaser can sue the vendor is where the vendor has used artifice to prevent the purchaser discovering it. It is not sufficient to merely show that the vendor knew of the defect (h). Bills of sale. A very frequent and common mode of dealing with goods is by bill of sale, which is an instrument used for the purpose of effecting a transfer of personal chattels from one person to another. The Acts now governing the subject of these instruments are the Bills of Sale Act, 1878 (c), which now only applies to bills of sale given otherwise than as security for money, and the Bills of Sale Act Amendment Act, 1882 (d), which applies to all bills of sale given by way of security for money, and which came into operation on What included ist November 1882. The Act of 1878 under the don^'^^'brn^of* term "bill of sale" includes assignments, transfers, sale." : =_^ (z) 50 & 51 Vict. c. 28, s. 17. As to trade-marks generally, see post, pp. 213-216. (a) Chitty on Contracts, 502. (6) Ibid. 503. (c) 41 & 42 Vict. c. 31. (d) 45 & 46 Vict. c. 43. AND HEREIN OF BAILMENTS. II5 declarations of trust without transfer, and other assur- ances of personal chattels, also powers of attorney and authorities or licences to take possession of personal chattels as security for any debt ; but it does not include assignments for the benefit of creditors, mar- riage settlements (that is, ante -nuptial settlements or settlements made in pursuance of an ante-nuptial agreement (c) ), transfers of goods in the ordinary course of business of any trade or calling, or bills of sale of goods in foreign ports or at sea, bills of lading, delivery orders, or any other documents used in the ordinary course of business, as the proof of the pos- session or control of goods (/). Difficulty sometimes arises as to whether a document is or is not a bill of sale. An inventory and receipt for the purchase of Inventories goods may amount to a bill of sale if thereby the '^^ ^eceip s. property passes, or the terms of agreement are therein contained ; but if a title can be made out by the payment of the money quite apart from the inventory and receipt, then it is otherwise. Thus if a landlord distrains and then sells the goods to a purchaser who pays his money and takes a receipt on the inventory, here ordinarily the inventory and receipt do not con- stitute a bill of sale (g). Where goods are pledged as Document re- security for a loan and delivered to the pledgee, a pledge? ^ document signed by the pledgor recording the trans- action and regulating the rights of the pledgee as to the sale of the goods is not a bill of sale (h). But any inventory, or invoice and receipt, or other document really used as the means of conferring the title to, and passing the property in the goods, does constitute (e) Ashton v. BlachsTiaw, L. R. 9 Eq. 510. (/) 41 & 42 Vict. c. 31, s. 4. {g) Marsden v. Meadoios, 7 Q. B. D. So ; 50 L. J. Q. B. 536 ; Preece V. OUling, 53 L. T. 763 ; Haydon v. Brown, 59 L. T. 330 ; Ramsay v. Margrett, (1894), 2 Q. B. 18 ; 63 L. J. Q. B. 513 ; 70 L. T. 788. (A) Ex parte Hubbard, hi re Hardwick, 17 Q. B. D. 690; 55 L. J, Q. B. 490 ; 35 W. R. 2. See also, as to certain instruments of hypo- thecation which are not to be deemed bills of sale, 53 & 54 Vict. c. 53, and 54 & 55 Vict. c. 35. Il5 OF CONTRACTS AS TO GOODS, Attornment a bill of sale (i). An attornment clause in a mort- , •'i*""^- gage is in effect a bill of sale, as it practically confers \ a power to seize personal chattels (k), and so also is a clause in any instrument which practically gives a Hiring agree- powcr of distrcss (/)• A genuine hiring agreement is ment." ° ^^^^ r^ bill of Sale (m), but it is a bill of sale, if, though nominally a hiring agreement, it is really a device to secure money, and the court in considering this point is not bound merely to look at the form of the docu- ment itself, but is entitled to go outside it and inquire into the facts of the case to see what is the real Debenture. transaction (n). A debenture issued by a company, and secured upon the capital, stock, or goods, chattels, and effects of such company is not a bill of sale (o). Attestation of It was provided by the Act of 1878 that every a'loiieitof "" ^' bill of sale must be attested by a solicitor, and the attestation was required to state that before execu- tion its effect had been explained to the grantor by the attesting witness (p) ; but it was held that if this was not so, the instrument was not void as between the parties themselves, but only as against execution creditors and trustees in bankruptcy and liquidation (i) Ex parte Parsons, In re 7'ownsend, l6 Q. B. D. 532 ; 55 L. J. Q B. 137 ; 53 L. T. 897 ; 34 W. R. 329 ; In re Roberts, Evans v. Roberts, 36 Ch. D. 196 ; 56 L. J. Ch. 952 ; 57 L. T. 79 ; 35 W. R. 684 ; Re Hood, Ex parte Burgess, 42 W. R. 23. (fc) In re Wdlis, Ex farte Kennedy, 21 Q. B. D. 384 ; 57 L. J. Q. B. 634 ; 59 L. T. 749 ; 36 W. R. 793. But such an attornment clause may be of value as constituting the relationship of landlord and tenant, so as to enable a mortgagee on suing his mortgagor in ejectment to specially indorse his writ as against a tenant holding over after the expiration of his tenancy, and proceed by means of a summons under Order I4. Mumford v. Collier, 25 Q. B. D. 279 ; 59 L. J. Q. B. 552 ; 38 W. R. 716. See further, as to the exact effect of an attornment claim, Green v. Marsh, (1892), 2 Q. B. 330 ; 61 L. J. Q. B. 442 ; 66 L. T. 480. {I) Stevens v. Marston, 39 W. R. 129. (m) M. S. cfc L. R;/. Co. v. North Central Waggon Co., 13 App. Cas. 554 ; 58 L. J. Ch. 219 ; 59 L. T. 730. (n) In re Watso7i, Ex parte Official Receiver, 25 Q. B. D. 27 ; 59 L. J. Q. B. 394 ; 63 L. T. 209 ; Beckett v. Tower Assets Co., (1891), i q'. B. 638 ; 60 L. J. Q. B. 493 ; 64 L. T. 497. (0) Re Standard Mamifacturlng Co. Ltd., Ex parte Lowe, (1891), I Ch. 627 ; 60 L. J. Q. B. 292 ; 64 L. T. 487 ; 45 & 46 Vict. c. 43. s. 17. (p) 41 & 42 Vict. c. 31, s. 10. AND HEKEIN OF BAILMENTS. II7 proceedings, aud under assign meuts for benefit of creditors (q). And now by the Act of 1882 (r), as regards bills of sale given by way of security for money, the above requirement as to attestation by a solicitor is repealed, and it is simply provided that the in- strument shall be attested by some credible witness, and that if not thus duly attested it shall be absolutely void (s). The witness must give his name, address, and description in the attestation clause (t). Bills of sale governed by the Act of 1882 are required The form of also to be in a certain form, and any substantial depar- ture therefrom renders them void. The rule to be col- lected from all the cases is that substantial departure \ from the form will vitiate the instrument, and this even \ though it may be practically impossible from the nature of the transaction to make the instrument in the prescribed form (u). Thus the form provides for the^""^ repayment of the money with interest at per cent, per annum, and it has been held that to provide for payment of a lump sum by way of interest or bonus is invalid, for the actual rate of interest must be stated (x). It has also been lield that a bill of sale which is in its terms so complicated as to substantially differ from the form is void (y). The form gives no covenants ( for title, and therefore when the grantor was expressed (5) Davis V. Goodman, L. K. 5 C. P. Div. 128 ; 49 L. J. C. P. 344. (r) 45 & 46 Vict. c. 43, s. 10. (s) Sect. 8. (t) Parsons v. Brand, 25 Q. B. D. no; 59 L. J. Q. B. 189; 62 L. T. 479 ; Blankcnstein v. Robertson, 24 Q. B. D. 543 ; 59 L. J. Q. B. 315 ; 62 L. T. 732 ; Bird v. Davey, 60 L. J. Q. B. 8 ; 63 L. T. 741 ; 39 W. R. 40 ; Simmons v. Woodward, (1892), A. C. ico ; 61 L. J. Ch. 252 ; 66 L. T. 534. (u) Ex parte Parsons, In re Townsend, 16 Q. B. D. 532 ; 55 L. J. Q. B. 137 ; 34 W. R. 329 ; 53 L. T. 897. (x) Davis V. Burton, 11 Q. B. D. 537 ; 52 L. J. Q. B. 636 ; 32 W. R. 423 ; Myers v. Elliott, 16 Q. B. D. 526 ; 55 L. J. Q. B. 233 : 54 L. T. 552 ; 34 W. R. 338 ; Blankenstcin v. Iiobcrtson, 24 Q. B. D. 543 ; 59 L. J. Q. B. 315 ; 62 L. T. 732. iy) Melville v. Strinqer, 13 Q. B. D. 392 ; 53 L. J. Q. B. 482 ; 32 W. R. 890 ; 50 L. T. 774. I 1 8 OF CONTRACTS AS TO GOODS, to convey and assign " as beneficial owner,"' it was held this invalidated the instrument, as these words would under the Conveyancing Act, 1 88 1 (z), imply covenants for title (a). So, again, a bill of sale providing for /payment of the money secured " on demand" has been held void (b), and instances might be multiplied in which a very slight departure from the prescribed form has been held fatal (c). On the other hand, provisions which are properly for the maintenance of the security are allowable, and do not vitiate the instrument, e.g. provisions relating to the replacing of chattels by the grantor, and to the disposal by the grantee of the purchase-money (d), or empowering the grantee to sell privately or by auction (c). Where a bill of sale is void as not being in accordance with the prescribed form, it is void not merely as regards the right to the chattels comprised therein, but in toto, so that no action can be brought on a covenant contained therein for payment of principal and interest (/). If the document is a security not merely on personal chattels, but also on other property not personal chattels within the meaning of the Act (g), e.g. tenant-right, valuation, and goodwill, this will vitiate the instrument as a bill of sale (li), but still it is only void in so far as it deals (c) 44 & 45 Vict. c. 41, P. 7. (a) Ex j)arte Stanford, hire Barber, 17 Q. B. D. 259 ; 55 L. J. Q. B. 341 ; 34 W. R. 507 ; 54 L. T. 894. {h) Hetherington v. Groome, 13 Q. B. D. 789 ; 53 L. J. Q. B. 577 ; 33 W. E. 103 ; Mack-ay v. Mcrritt, 34 W. R. 483. (c) See Furhcr v. Cobh, 17 Q. B. D. 459 ; 55 L. J. Q. B. 487 ; 55 L. T. 359; Bianchi v. Offord, 17 Q. B. D. 484; 55 L. J. Q. B. 486; Calvert v. Thomas, 19 Q. B. D. 204 ; 56 L. J. Q. B. 470 ; 57 L. T. 441 ; 35 W. R. 616 ; Watson v. Strickland, 19 Q. B. D. 391 ; 56 L. J. Q. B. 594 ; 35 W. R. 769 ; Real and Personal Advance Co. v. Clears, 57 L. J. Q. B. 164; 58 L. T. 610; Thomas v. Kelly, 13 App. Cas. 506; 58 L. J. Q. B. 66; 60 L. T. 114. (d) Consolidated Credit and Mortgage Co. v. Gosney, 16 Q. B. D. 24 ; 55 L. J. Q. B. 61 ; 34 W. R. 106. (e) Bourne v. Wall, 64 L. T. 530 ; 39 W. R. 510. (f)I>avies V. Bees, 17 Q. B. D. 40S ; 55 L. J. Q. B. 363 ; 34 W. R. 573; 54L. T. 813. {g) As to which see 41 & 42 Vict. c. 31, s. 7, ante, p. 74. (h) Cochrane v. Entivistle, 25 Q. B. D. 116; 59 L. J. Q. B, 418; 62 L. T. 852. AND HEREIN OF BAILMENTS. II 9 with the personal chattels, and the residue of the security is good (i). The Bills of Sale Act, 1882, also provides (k) that other points the amount of a bill of sale must not be less than 1882. -^30, and that it must have a schedule annexed to it, which schedule must be specific and not general in its Speciac de- character, so that a description in the schedule of " 450 ^^^^^^ ^°"" oil paintings in gilt frames " was held insufficient (/), as also was the description, "21 milch cows " (m). It is also provided by the Act (n) that a bill of sale shall not, except as against the grantor, pass future acquired property, with two exceptions, viz. (i) growing crops vhich are actually growing at the time, and (2) fix- tires, plant, &c., to be brought on to the premises in sibstitution for others specifically described in the schedule. But although the Act does, therefore, to a certain extent, contemplate assignments of future Future . , , 1 1 1 1 j_ 2.-\ c acquired acquired property, it has been held that as the form property. ol bill of sale prescribed by the Act contains nothing wth regard to it, to insert a clause in the body of the dccument dealing with future acquired property will be a departure from the form, and will therefore vitiate th; instrument (0). The proper course, if it is desired to affect any future acquired property, is to deal with it in the inventory or schedule, and not in the body of thilnstrument. It is also provided (^j>) that seizure Seizure, shill only be made on any of five certain events speci- fiel in the Act (q), and that the grantee on seizing Ex parte Byrne, Re Burdett, 20 Q. B. D. 310; 57 L. J. Q. B. 26, ; 58 L. T. 708. k) 41 & 42 Vict. c. 31, s. 4. Witt V. Banner, 20 Q. B. D. 1 14 ; 57 L. J. Q. B. 141 ; 58 L. T. 34. m) Carpenter v. Been, 23 Q. B. D. 566 ; 6 1 L. T. 860. See, however, anl compare Davidson v. Carlton Bank, (1S93), i Q. B. 82 ; 62 L. J. Q. B.I 1 1 ; 67 L. T. 641. n) Sects. 5, 6. o) Thomas v. Kelly, 13 App. Cas. 506 ; 58 L. J. Q. B. 66 ; 60 L. T. 14. (p) 45 & 46 Vict. c. 43, s. 7. Iq) And this provision applies, though it is a bill of sale before the Jet of 1882, if seizure is not made until after then (Ex parte Cotton, 1 1 C B. D. 301 ; 49 L. T. 52 ; 32 ^Y. R. 58). 120 OF CONTEACTS AS TO GOODS, shall not at once remove, but must wait five days, and that within that period the grantor may apply to a judge at chambers, who, if satisfied that the cause of seizure no longer exists, may restrain the grantee frou; removing or selling, or may make such other order as seems just. The Act does not give any special power of sale to the grantee of a bill of sale, but it has been held that after due seizure he has naturally a power of sale existing in him, on reasonable notice, in the same way that a pledgee of goods has (r). Consideration In order to make a bill of sale effectual, it nms; trati^, &c^,'of truly Set fortii the consideration lor which it is bills of sale, given (s), and an affidavit of the time of the bil of sale having been given, of its due execution anl attestation, of the residence and description (t) of tie person giving it, and of tlie attesting witness, must 1b made, and the bill of sale, together with any defeai- ance or condition affecting the same (u), must be regii- tered and the affidavit filed in the Central Office >f the High Court of Justice within seven clear da;s after giving it (unless the seven days expire on a Sunday or other day on which the office is closd, when registration is good if made on the next ff u bailment. Division of bailments by Lord Holt ill Gorjgs^ v. Bernard. OF CONTRACTS AS TO GOODS, position of the grantor of a bill of sale in tlie event of his bankruptcy (/); but as to bills of sale exe- cuted by a person on or after ist November 1882 as regards goods used by him in his trade or business, this is no longer so, as the provision in the Act of 1878 is repealed by the Act of 1882 {g). It has, however, been decided that this repeal does not apply to bills of sale governed by the Act of 1878 Qi). Goods are frequently delivered to some person not their absolute owner, and a bailment thus constituted. A bailment has been defined as " a delivery of a thing in trust for some special object or purpose, and upon an undertaking express or implied to conform to the object or purpose of the trust " {%). Different classi- fications of bailments have been given, but perhaps the best is found in the judgment of Lord Holt in the leading case of Coggs v. Bernard (/j), where they are divided as follows : — 1 . Bepositum — where goods are delivered to be kept by the depositee without reward for a bailor ; 2. Commodaluin — where goods are lent to some person to be used by him gratis ; 3. Locatio re I — where goods are lent out to a person for hire ; 4. Vadium — where goods are pawned or pledged ; 5. Locatio opcris faciendi — where something is to be done to goods, or they are to be carried for reward ; and (/) 41 & 42 Vict. c. 31, s. 20. (7) 45 & 46 Vict. c. 43, s. 15. As to bills of sale executed before 1st January 1S79, see 17 & iS Vict. c. 36, and 29 & 30 Vict. c. 96. (h) Sivift V. PanncU, 24 Ch. D. 210; 31 W. R. 543. (i) Broom's Corns. 881. (h) I S. L. C. 201 ; Lord Raymond, 909. AND HEREIN OF BAILMENTS. 1 23 6. Mandatum — where goods are to be carried gratis. Of the above, let us first deal with those bailments DeposUum and called respectively depositiim and mandatum, they being exactly similar to each other iu respect that each is the doing of some act by the bailee voluntarily and without reward. Now, in any contract or bailment of a merely voluntary nature a person cannot be compelled to do the act required, for a simple contract requires a valu- able consideration (l) ; and therefore it is said that a voluntary bailee is not liable for nonfeasance, so that thougli, from his not doing what he has contracted to do, damage may have arisen to the other party, yet he is not liable {m). But if a bailee enters upon the bailment, as by accepting a deposit of goods, there is said to be sufficient consideration by reason of the intrusting him with the goods, to create a duty in him to perform the matter properly, and if he does not do so, he is liable if he is guilty of such default as to amount to gross negligence ; and the before-mentioned case of Coggs v. Bernard is a direct decision to this effect. Tiie facts in that case were, that the defendant Facts iu Cofjrjs had promised the plaintiff to take up several hogsheads ^" '^"'"^'■"• of brandy then in a certain cellar, and lay them down again in a certain other cellar safely and securely ; and by the default of the defendant one of the casks was staved and a quantity of the brandy spilt. It was decided that the plaintiff was entitled to recover notwithstanding the defendant was not to be paid, but that a voluntary bailee was only liable for gross negli- gence. This, then, is the general principle of law governing the liability of voluntary bailees, but it has been in some slight degree altered, it being now de- cided that if a voluntary bailee is in such a situation as to imply skill in what he undertakes to do, an omission to use that skill is imputable to him as gross (I) Ante, p. 39. {m) Elsee v. Catward, 5 T. R. 143. 124 Wilson V. Brett. OF CONTRACTS AS TO GOODS, negligeuce (/i). Thus iu the case of Wilson v. Brett (cited below), it was held that a person who rode a horse for the purpose of exhibiting and offering him for sale, though he was to receive no reward for doing so, was yet bound to use such skill as he possessed, and that he being proved to be conversant with and skilled in horses, was equally liable with a borrower for any injury done to the horse on account of his omission to use such skill. In the above cases of mandatum and depositum, the reason of the bailee being only liable for his gross neglect is the fact of the bailment being practically altogether for the bailor's benefit ; but in the case of the Cowinodataia. bailment called commodatum, as the whole benefit is received by the bailee, the liability is different, for here the bailee is strictly bound to use the utmost care, and will be liable for even slight neglect; so that if a person lends a horse to another, and the lendee lets his servant ride it, and it is injured without his fault or the fault of his servant, that will nevertheless be quite sufficient slight neglect on his part to render him liable, for the horse was lent to liim, and he had no right to let his servant ride it (o). Locatio rei In the bailment locatio rei, or hiring of goods, the bailee is bound to use ordinary diligence, and is liable for ordinary neglect, for here the bailment operates for the benefit of both parties ; for that of the bailee in that he has the use of the goods, and for that of the bailor in that he has the amount agreed to be paid for the hire. Vadium, or So also the bailment cadiiivi, otiierwise known as acceptwii. pignori acceptum, or pawn, is for the benefit of both parties, the pawner getting a loan of money, and the (n) Wilson v. Brett, II M. & W. 113. (0) 1 S. L. C. 22S. AND HEREIN OF BAILMENTS. 12$ pawnee getting the use of the chattel, or interest, or both, and so the liability of the pawnee is only to use ordinary diligence. To constitute a valid pledge there must be either an actual or constructive delivery of the article to the pawnee, and the bailee here looks not only to the property but to the person of the bailor ; and if the subject of the bailment is lost and the bailee has used a proper amount of diligence, and the loss has occurred without any fault on his part, he may sue the bailor for the amount of the debt (p). It is not sufficient to exonerate a bailee from responsi- bility for the loss of the subject of the bailment to shew that it was stolen, but he must also shew that he used due care to protect it (g). As to the right of the whether the bailee in this kind of bailment, it was stated by Lord ug^the dhattei Holt, in his judgment in Coggs v. Bernard (r), that if it p;^wned. will do the article no harm, he may use it (as, for in- stance, the wearing of a jewel pawned), but such user will be at the peril of the bailee ; but if the article will be the worse for using, then it must not be used, and the law now seems to be that the pawnee is generally never justified in so using the article pawned, except it be of such a nature that the bailee is at some expense to maintain it (as, for instance, a horse, which naturally requires to be fed), for in such a case as this the bailee may use it in a reasonable way to recompense him for his expenditure (s). A pawn or pledge requires to be carefully dis- Distinctions tinguished from a lien, and from a mortgage of per- pf,wn^^aiien sonal estate (t). A lien, generallv speakinfj, gives but "^"^ a mort- . / °°., gage of a right to retain property, and no active right in personal respect of it (w) ; a mortgage passes the actual pro- p^'^'P^^ ^' perty in the goods to the mortgagee ; but a pawn or (p) I S. L. C. 229. Iq) Chitty on Contracts, 518. (r) I S. L. C. 213, 214. (s) Chitt}' on Contracts, 519. {t) See I S. L. C. 230. («) See ante, p. 104. 126 OF CONTRACTS AS TO GOODS, pledge simply gives a special or qualified property, and a limited right of possession. The proper remedy of a pawnee to recover his money is on reasonable notice to sell the subject of the pledge, or to sue, or if necessary he may adopt both remedies (x), and if he sells the subject of the pledge, and it does not produce sufficient to satisfy the debt, he may sue for the deficiency (y). Pawnbrokers. Pawnbrokers' Act, 1872. A certain practically very important kind of pawnees or pledgees are pawnbrokers, and at common law they stood on the same footing as other bailees of that class, and liable, therefore, as before stated. But it is evident that the system of pawning is open to many abuses, both from the necessities persons may be under to induce them to pledge, the desire of others to part with things to which they have no right beyond that of possession, and the opportunities that pawnbrokers may have of advantaging themselves to the injury of the pawners, and accordingly the Legis- lature has specially dealt with the subject. The present statute governing the matter is the Pawn- brokers' Act, 1872 (z), which, however, only deals with loans up to the sum of i^io, and as to loans beyond that amount the ordinary law of pawn applies (a). By this statute every pledge must be redeemed within twelve months from the day of pawning, with seven additional days of grace (h), and if not redeemed within that time, and the amount for which the article is pledged does not exceed los., it becomes the pawn- broker's absolute property (c) ; but if for above los., (x) I S. L. C. 228. A pledgee of a chattel cannot foreclose {Fraser v, Byas, W. N. (1895) 112 ; Law Students' Journal, August 1895, p. 168). As to a pledge of title-deeds, which constitutes an equitable mortgage, and as to the remedies of an equitable mortgagee, see Indermaur's Manual of Equity, 135, 136. {y) Jones v, Marshall, 24 Q. B. D. 269 ; 59 L. J. Q. B. 123 ; 61 L. T. 721. (z) 35 & 36 Vict. c. 93. (a) On the old law, see Pennell v. Attenhorough, 4 Q. B. 868. (6) 35 & 36 Vict. c. 93, s. 16. (c) Sect. 17. AND HEEEIN OF BAILMENTS. 1 27 then it is still redeemable until actual sale (ci), and any such sale is only to be by public auction, and the surplus after the costs of the sale and the amount of the pledge is to be accounted for (c). As to an Pawubroker is injury to the subject of the pledge by fire, formerly H^^i^?:? £^ the pawnbroker was not liable unless it was proved ^^y fire, that the fire took place through his default or neglect, but now he is absolutely so liable, and, to protect himself, is empowered to insure to the extent of the value of the goods (/). Formerly, also, as to goods which had been stolen, neither the pawnbroker nor a purchaser from him had a right to retain the goods as against the true owner ; but now, upon conviction of the thief, the court has a discretion to allow the pawn- broker to retain the goods as a security for the money advanced, or to order them to be returned to the true owner (g). If by the default or neglect of the pawn- broker the pledge suffers any injury or depreciation, the owner may recover summarily a reasonable satis- faction for the same (h). It is also provided (i), that Right to the holder for the time being of a pawn-ticket shall pioduction of be presumed to be the person entitled to redeem the pawn-ticket, pledge, and that the pawnbroker shall accordingly, on payment of the loan and profit, deliver the pledge to the person producing the pawn-ticket, and he is there- by indemnified for so doing. It has, however, been decided that this enactment only applies as between the pawnbroker and the pawner, or the owner who has authorized the pledge, and that it does not affect the common law rights of the owner of property which is pledged against his will (7j). There remains but to consider that kind of bailment (d) 35 & 36 Vict. c. 93, s. 18. (e) Sect. 19. (/) Sect. 27. ig) Sect. 30. (h) Sect. 28. {{) Sect. 25. (k) Singer Manufacturing Co. v. Clark, 5 Ex. D. 37 ; 49 L. J. Ex. 224 ; 28 W. R. 170. 128 OF CONTRACTS AS TO GOODS, Locatio operi-< faciendi. In the case of private per- sons, and those exercising a public employment. Reason of common law- liability of classified by Lord Holt as locatio operis faciendi, and as to this it is of two kinds ; either a delivery to one exercising a public employment, e.ff. a carrier, or a delivery to a private person, e.g. a factor or wharfinger. As to this latter kind, they are only liable to do the best they can, or, in other words, are bound only to use ordinary diligence, so that such a bailee would not be liable for a robbery of goods happening without his fault, but in such a case it would have to be very clearly shewn that no care on his part could have prevented the robbery. On the other hand, as to the former kind, such a bailee stands in the position of an insurer liable for all losses except those occurring by the act of God (/) or the Queen's enemies, and the reason on whicli this rule is founded has been stated with regard to carriers as follows: ''This is a politic establishment contrived by the policy of the law for the safety of all persons, the necessity of whose affairs oblige them to trust these sort of persons, that they may be safe in their ways of dealing ; for else these carriers might have an opportunity of undoing all persons that had any dealing with them by com- bining with thieves, &c., and yet doing it in such a clandestine manner as would not be possible to be discovered " (m). But the above, though formerly the correct rule at common law, is not so now, and it will be best to consider, firstly, the law of carriers, and then pass on to the law of innkeepers. (1) As to what will amount to an "act of God," see Nuf/ent v. Smith (I C. P. D. 423 ; 45 L. J. C. P. 697). In that case the defen- dant, a common carrier, received from the plaintiff a mare to be carried by sea. In the course of the voyage, the weather being rough and the mare being frightened, she struggled violently, and received injuries from which she died. It was held by the Court of Appeal that no facts being proved but these, the defendant was not liable, that this was in effect an "act of God," and that it was not necessary to prove that it was absolutely impossible for the carrier to prevent the injury, but that it was enough to prove that by no reasonable precaution under the circumstances could it have been prevented. (m) Per Lord Holt, in his judgment in Cogys v. Bernard, i S. L. C. AND HEREIN OF BAILMENTS. 129 A common carrier has been defined as one who un- Definition dertakes to transport from place to place for hire the cani^!"*^" goods of such persons as choose to employ him (n), and the rule is that to constitute a person a common car- rier he must hold himself out, expressly or by course of conduct, as ready to engage in the transportation of goods for hire as a business, not merely as a casual occupation jj?'o hac vice, and that a person who merely undertakes chance jobs is not a common carrier (0) ; also that he must be a person plying from one fixed terminus to another. It has, however, been held that a barge-owner who lets out a barge to different persons for different voyages is a common carrier, and liable as such, although he does not ply between any fixed termini, and the customer in each particular case fixes the point of arrival and departure (2?). Railway com- panies, as to goods which they ordinarily carry, are common carriers. The liability of a carrier at common law was for every Liability of carriers at common law. loss, unless it arose by the act of God or the Kino's •^^"'^'"^ ^^ enemies, and the reason of this extraordinary liability was as has been stated by Lord Holt in his remarks on the subject already set out (q). It was fully in the power of carriers, however, to make any special contracts with their customers, in which their liability might be limited in any way agreed upon, and it became their practice to put up in their warehouses notices limiting their liability, and then, if it could be proved that such a notice was brought to the knowledge of any particular customer, it was held to constitute a special contract with him, but if it could not be brought to his know- ledge it was utterly ineffectual. No such notice, how- ever, exonerated the carrier from liability for gross negligence (r). (n) Palmer v. Grand Junction Ry. Co., 4 M. & W. 247. (0) Chitty on Contracts, 529, 530 ; Brind v. Dale, 2 M. & Rob. 80. (p) Liver Alkali Co. v. Johnson, L. R. 9 Ex. 338 ; 43 L J Ex 216 • 31 L. T. 95. [q) Ante, p. 128. (r) Wyld V. Pick/ord, 8 M. & W. 443. I I30 OF CONTRACTS AS TO GOODS, Difficulties at It was evident that this state of tilings could not common law. ^^Q^^-ij^^^g^ £oj. it was Constantly a difficult thing to determine whether in each particular case notice had been brought to the customer's knowledge. Accord- The Carriers iugly the Carriers Act (s) was passed, which provides (t) t'^es)' ^^"'' '^' that no carrier by land shall be liable for any loss of or injury to any valuable articles of the nature there specified, — such as gold, silver, watches, clocks, bills, notes, title-deeds, stamps, engravings, silks, &c., — contained in any parcel, which shall have been de- livered, either to be carried for hire or to accompany the person of any passenger, where the value of such article shall exceed ;!{^io, unless, at the time of the delivery of such article to be carried, its value and nature shall have been declared, and an increased rate Notice of in- ot charge paid, or agreed to be paid, which increased to^be exhibTtId ^^^^^S® ^^Y ^^ leccived, provided it is legibly notified by carrier, iu a couspicuous part of the officc or warehouse, and such notification is to bind without proof of its having come to any customer's knowledge (u). Carriers who omit to affix such notification are precluded from the benefit of the Act so far as any right to extra charge is concerned, but it seems that in any event they are entitled to a declaration of the nature and value of No public the goods (x). The statute also provides (y) that no liability'"^ ^"^ public noticc or declaration shall have any binding allowed. effect, but nothing in the Act is to be construed to annul or in anywise affect any special contract between the carrier and the customer (2) ; and nothing in the Act is to extend to protect any carrier from any loss (s) 1 1 Geo. 4 & I Wm. 4, c. 68. This Act only applies to carriers by land. As to carriers by sea, see post, pp. 203, 204, (t) Sect. I. (u) II Geo. 4 & I Wm. 4, c. 68. This Act not only protects the carrier in respect of the loss of the articles themselves, "but also from any damages consequential to such loss, MUlen v. Brascli, 10 Q. B. D. 142 ; 52 L. J. Q. B. 127 ; 31 W. R. 190 ; 47 L. T. 685. [x) 1 1 Geo. 4 & I Wm. 4, c. 68, s. 3 ; see cases cited in note (c), on page 131. (y) Sect. 4. [z] Sect. 6. AND HEREIN OF BAILMENTS. 131 arising from the felonious acts of any person in his employ, or to protect any employee from any loss arising from his own personal misconduct or neglect (a). Although a customer may declare a package to be of Dedaratiou of some particular value, in the event of its loss the "'"''^"^ °^ ^°^'^'' carrier is not bound by that value, but may demand proof of the actual value, which is all he is liable for (5), and, as already stated, even although the carrier has omitted to put up any notification as to extra charge, it appears he is entitled to a declaration of the value and nature of the goods (c). In cases of goods not of the kind mentioned in the where this Act, or when the value is not above £10, then, in the ^«<^ does not aj ^) "i^-jj, iii uiio apply earner s absence of any special contract, and subject to the Act common law next mentioned, the carrier's common law liability reVains. remains by the express provision of the Act, notwith- standing any public notice (d). Eailway and canal companies frequently escaped Evasion of the the provisions of this Act by putting notices on the fj'^ ^[Jg^^'^''^ receipts given to persons delivering goods to be carried, and this was held to constitute a special contract between the parties. The Eailway and Canal Traffic The Railway Act, 1854 (e), therefore provides (/), that no such TrafSTcV notice given by any such company shall have any ^^54- effect, but that the company shall be liable for all loss or injury to goods which are being carried by them, occasioned by the neglect or default of the company or its servants. It is, however, also provided that nothing therein contained is to prevent companies from making such conditions with respect to the for- (a) Sect. 8. As to "felonious acts," see Gogarty v. Great S. <£• W. Ry. Co., 9 Irish Reports (C. L.) 233. (b) Sect. 9. (c) Hart V. Baxendale, 6 Ex. 769 ; Pinciani v. L. tt S. W. Ry. 18 C. B. 226. ' (d) 1 1 Geo. 4 & I Wm. 4, c. 68, s. 4. (c) 17 & 18 Vict. c. 31. (/) Sect. 7. 132 OF CONTRACTS AS TO GOODS, Difficulties in construing this Act. Burden of jiroviug condition reasonable. warding and delivering of any goods as shall be adjudged by the Court or judge before whom any question relating thereto shall be tried, to be just and reasonable, and no special contract as to the forward- ing and delivering of any goods shall be binding upon any one unless signed by him or the person deliver- ing the goods to be carried. Very great difficulty has arisen on the construction of this provision, as to whether the statute only requires that there should be some special contract, and requires nothing as to the conditions to be contained in it, and also whether, in addition to a special contract in writing signed, reason- able conditions may bind which are not made part of a contract, but only given notice of — or to put the matter more directly in the shape of two questions : I. When a condition is reasonable, does it require also to be reduced into writing and signed ? and 2. When there is a special contract, can the question of its reasonableness be gone into ? However, the weight of authority is certainly to answer both ques- tions in the affirmative, and to treat the words " special contract " and " conditions," used in the Act, as synonymous terms {g), so that there must always, to comply with the Act, be a special contract in writing signed, and reasonable conditions contained therein {li). The burden of proving that a condition inserted in a special contract is a reasonable condition is on the company setting it up {i), and it has been de- cided that an ordinary contract exempting a company from liability for injuries to goods does not protect them {g) Simmons v. Great Western Ry. Co., i8 C. B. 805 ; McManus v. Lancashire Ry. Co. , 2 H. & X. 693 ; North Stafford Ry. Co. v. Peek, E. B. & E. 9S6, and on appeal to the House of Lords, 32 L. J. (Q. B.) 241, in which the judges were divided in their opinion. {h) As to what is a reasonable condition, see Corrigan v. Great Northern and Manchester, Sheffield, and Lincolnshire Ry. Cos., 6 L. R. Ir. 90; Ashendcn v. Z. B. . 360; 53L. J.Q.B. 345; 32W.R.757; 50L.T.656. (A) 45 & 46 "Vict. c. 61, s. 26 ( I). (t) Ibid. 8. 14 (4). 1/6 OF MERCANTILE CONTRACTS, AND SO that a bill dated the ist of January, and payable three months after date, is not actually due and payable until the 4th of April (k). These " days of grace " do not, of course, exist in bills or notes payable on de- What is a bill mand (I) ; and with regard to what is a bill payable denfand."" ^^ demand, it is provided that a bill is so payable which is expressed to be payable on demand, or at sight, or on presentation, or in which no time for pay- ment is expressed (m). Where no time named, bill or Bote deemed pay- able on demand. Limitation. As just stated, all bills or notes in which no time for payment is specified are deemed payable on demand, and with regard to instruments on demand, or at sight, or on presentation, it should be noticed that it is not necessary before bringing an action thereon that any demand should actually be made, and the Statute of Limitations will run from the date of making the instrument, and not from the time of demand (n) ; but if an instrument is made payable a certain time after demand, e.g. one month after demand, then the statute does not commence to run until a demand has been made, and the period named after such demand has expired (0). Usance. Foreign bills are often drawn payable at an " usance " or two or more " usances," which signifies the period or periods customary for payment between {k) 45 & 46 Vict. c. 61, s. 14 (i). Days of grace were .so called because they were formerly only allowed as a favour ; but the laws of commercial countries long since recognized them as a right, and see now the above statutory provision. (I) 45 & 46 Vict. c. 61, s. 14. (m) Sect. 10. Sect. 96 of this Act repeals the former provisions to the same effect contained in 34 & 35 Vict. c. 74, s. 2. (n) Byles on Bills, 356. This is the rule as regards all principal debts payable on demand, but where a sum is payiible by a collateral debtor on demand, such demand is a condition precedent, and the statute will not commence to run against the collateral debtor until demand. Re Brown, Brown v. Brown, (1893), 2 Ch. 300; 63 L. J. Ch. 695 ; 69 L. T. 12. As regards payment of interest on a bill or note payable on demand, that does not run until demand (45 & 46 Vict. c. 61, s. 57). (o) Thorpe v. Coombe, R. & M. 388 ; 45 & 46 Vict. c. 61, s. 14 (3). HEREIN OF BILLS OF EXCHANGE, ETC. 1 77 the two countries where the bills are drawn and pay- able respectively {p). Where a bill, expressed to be payable at a fixed Non-dating or period after date, is issued undated, or where the Jb°J|° *^^^'"° acceptance of a bill payable at a fixed period after sight is undated, any holder may insert therein the true date of issue or acceptance, and the bill will * be payable accordingly, and parol evidence will be admissible to account for the omission of date, "Where the holder in good faith and by mistake inserts a wrong date, or in fact in every case where a wrong date is inserted, if the bill subsequently comes into the hands of a holder in due course, the bill is not avoided, but operates and is payable, as if the date so inserted had been the true date (q). Where a bill or an acceptance or any indorsement on a bill is dated, the date is, unless the contrary is proved, to be deemed to be the true date of the drawing, acceptance, or indorsement, as the case may be. A bill is not invalid by reason only that it is ante-dated or post-dated, or that it bears date on a Sunday (r). A person who without qualification accepts a bill As to present- of exchange or makes a promissory note payable on a SVo"/ given day, is liable to pay it when that day arrives, dishonour, though no demand is made. He must be aware of the contract he has entered into, and he has no right to say that he is taken by surprise, for he is bound to provide for payment on the day when the instrument becomes due (s) ; but of course this does not apply to a bill or note payable at a certain time after sight or on presentation, for in such cases it cannot become payable unless and until it is so presented ; nor does it apply in the case of a qualified acceptance of a (■p) Byles on Bills, 277. (q) 45 & 46 Vict. c. 61, s. 12. (r) Sect. 13. (s) Per Channell, B., in Maltbi) v. Murrell, 5 H, & N. 82 j M 178 OF MERCANTILE CONTRACTS, AND local kind, which has been already dealt with (t). As to a promissory note, if in the body of it it is made payable at a particular place, it must be pre- sented for payment at that place in order to render the maker liable (u). The law on this point, there- fore, is, that to charge an acceptor, presentment is not necessary unless accepted payable 07ily at a particular place ; but to charge the maker of a note, if in its body it is expressed to be payable at a certain place, though not only at that place, yet presentment is necessary ; but in both cases it may be observed that it is not essential that presentment should be made on the exact day. To charge But what has just been stated applies only to the indOTserTtbere parties primary liable, i.e. the acceptor of a bill and must always ^|^g maker of a note ; as to the parties not so primarily be present- ' •'■ •*■ _ •' mentand liable, i.c. the drawer or indorsers of a bill, or the in- dishouour. dorscrs of a note, it has no application, for they are only liable on the default of the party primarily responsible ; it is necessary with regard to them that the holder should present the instrument to the person primarily liable on the very day it becomes due, and if dishonoured, give notice of its dishonour, unless the notice of dis- honour is waived (.r). As to the presentment, even when necessary to charge the acceptor or maker, we have seen that it need not be on the actual day of the instrument becoming due (y), but to charge the other parties the presentment must be on the exact day (z). Instrument When, howcver, a bill or note becomes due on a Sun- ona'^lunTay, ^ay, Christmas Day, Good Friday, or public fast or &c., or a bank thanksgiving day, the instrument is presentable and payable on the day preceding such day; but if it {t) Ante, p. 172. (m) 45 & 46 Vict. c. 61, s. 87. (x) Ibid. s. 48. ly) Supra. (z) Byies on Bills, 276, 28S. HEREIN OF BILLS OF EXCHANGE, ETC. 1 79 becomes due on a bank holiday, it is presentable and payable on the day following such day (a). As to notice of dishonour, the law requires it to be Eeason why given for this reason, " because it is presumed that the jHshonour is bill is drawn on account of the drawee's having effects inquired. of the drawer in his hands ; and if the latter has notice that the bill is not paid, he may withdraw them immediately " (b). Upon this point of notice of dis- honour three matters require attention : — Firstly, What will be sufficient notice of dishonour ? What will be And the answer to this question is, that though no notice of formal notice is required, yet mere knowledge of the . 17S ; 58 L. J. Ch. 315 ; 60 L. T. 491. (e) Asquith v. Asquith, \V. N. (1885), 31. {/) Chitty on Contracts, 648. (g) Order xix. r. 3 ; Order xxi. rr. 15, 17. (h) As to what will amount to negligence in a solicitor, see Chitty on Contracts, 648. (i) See hereon Coclclurn v. Edwards, 18 Ch. D. 449: 51 L. J. Ch. 46 ; Craddoclc v. Rogers, 53 L. J. Ch. 968 ; 51 L. T. 191 ; Fooley's Trustee v. Whctliam, 33 Ch. D. in ; 55 L. J. Ch. 654 ; 55 L. T. 333 ; 34 W. R. 6S9. See further on this subject, which belongs more to equity, especially Indermaur's Manual of Equity, 200, 201. ANY DISABILITY OF THE CONTRACTING PARTIES. 22 1 trial has a claim for his expenses, and when called to witness's give an opinion and not to speak to a fact, for his loss expenses is of time (k), his claim is ordinarily not against the ^j^* ^=j|^^^'*^ solicitor in the action, but against the party on whose behalf he is subpcenaed Q). The remedy also of aNoiisa sheriff's bailiff who executes process in an action is against the client, not against the solicitor (m). Medical men may be either physicians, surgeons, vii. Medical apothecaries, or chemists and druggists. As to the dentists, &o. latter, they must be duly registered as chemists or druggists, and their duty is simply to prepare, dispense, and sell medicines, and they cannot recover for advice. As to the three former, they can recover their fees, provided they are duly registered under the Medical 21 k 22 vict. Act (n), and provided also, as to physicians, that they are not prohibited by the bye-laws of any college of physicians from so doing (0). If a medical man is guilty of such a want of reasonable care or skill that his patient receives no benefit, he cannot recover his fees, and he is liable to an action by the patient for negli- gence, even though he was not called in by such patient, or was not to be remunerated by him (p) ; and any negligence may be set off against him by way of counter-claim in an action brought by him for his fees (q). With regard to dentists, it is now provided by the Dentists Act, Dentists Act, 1878 (r), that from the ist August 1879 (k) See post, p. 223. (l) Lee V. Everest, 2 H. & N. 285 ; Chitty on Contracts, 653. (m) Roijlc V. Bushy, 6 Q. B. D. 171 ; 50 L. J. Q. B. 196, overruling Brewer v. Jones, 10 Ex. 655- (n) 21 & 22 Vict. 0. 90, amended by 23 Vict. c. 7, and 46 & 47 Vict, c. 19. (0) Chitty on Contracts, 629. Before 21 & 22 Vict. c. 90, a physician could not sue for services rendered unless there had been an express contract to pay him. {p) See generally as to torts arising peculiarly from negligence, post, Part ii. ch. vi. (q) Order xix. r. 3. {r) 41 & 42 Vict. c. 33. 222 OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF a person shall not be entitled to recover any fee or charge in respect of dentistry unless registered under that Act, or unless he is a duly qualified medical practi- tioner (s) ; and that no person shall be entitled to use the name or title of " dentist " or " dental practitioner," or any description implying that he is registered under this Act, or that he is a person specially entitled to practise dentistry, under a fine not exceeding ;^20, unless he is duly registered (t). Prior to this Act there was no provision of this character as to dentists, who are by force of it now placed in much the same position as medical men. Veterinary Surgeons Act, 1881. Vm. Wit- nesses. With regard also to veterinary surgeons, it is now provided by the Veterinary Surgeons Act, 1881 (u), that they must be duly registered, and any person practising as a veterinary surgeon after 3 1 st December 1883 without being on the register is liable to a fine not exceeding ^20, and is not entitled to recover any fee or charge for practising (x). Every person subpoenaed as a witness is entitled to be paid a reasonable sum for his expenses of going to, staying at, and returning from the trial, and this sum must be paid or tendered him at the time of his being served with his subpoena, otherwise he is not bound to attend. If a witness lives within the bills of mortality, it is sufficient to give him a nominal sum with his subpoena, usually one shilling. If a witness who is not paid a proper sum for his expenses yet chooses to attend, he is justified in refusing to be sworn until his expenses have been paid (y). But though a witness is always entitled to his expenses, yet he is not (s) 41 & 42 Vict. c. 33, s. 5. (t) Sect. 3. (u) 44 & 45 Vict. c. 62. (x) Sect. 17. (y) Chitty ou Contracts, 652. As to the meaning of expression "bills of mortality," see Wharton's Law Lexicon, title "Bills of Mortality." ANY DISA.BILITY OF THE CONTKACTING PARTIES. 223 entitled to be paid for his loss of time, unless he is a When a professional witness called not to give evidence upon ^ntrtied to be some matter of fact, but of opinion, e.g. an expert, and J^'^^^^g"^ ^"^^ then he is so entitled (s). The proper allowance to an ordinary professional man beyond his expenses is one guinea a day (a). Service of a subpoena on a witness must be personal, Service of and the remedy against a witness for not attending on his subpoena is either by attachment for contempt of court in not obeying the subpoena, which is a process of the court, or by an action for damages (&). A corporation is some legal body always known by ix. Corpora- 1 . ,n ■ •, ■ ^ i_-^ tions, com- the same name, and perpetually preservmg its identity, panics, and and it may be either a corporation sole, that is, composed institutions, of one person, e.g. a bishop, or a corporation aggregate, that is, one composed of many persons, e.g. some com- pany incorporated by Act of Parliament (c). Corpo- rations aggregate may be created either by Act of Parliament, charter, or letters-patent, and the great peculiarity as to their contracts is that, generally speak- ing, they must be under their common seal. To this rule there are, however, exceptions, which may chiefly be stated to be contracts comprising matters of every- day occurrence, or of such a nature as to be actually necessary, these being valid, though not under the common seal {d). Companies may be either unlimited or limited, and Differences now any company consisting of seven or more persons limited and may, and if more than twenty persons must, be re- companies, gistered (e). Associations consisting of more than (2) See Webb v. Page, i C. & R. 23 ; Lee v. Everest, 2 H. & N. 285. (a) In re The Working Mens Mutual Societi/, Limited, 21 Ch. D. 831 ; 51 L. J. Ch. 850 ; 47 L. T. 645 ; 30 W. R. 938. (6) See also as to witnesses, jtost. Part iii. ciiap. ii., on Evidence. (c) Williams' Personal Property, 2S0, {d) Clarke V. Curhfield Union, 21 L. J. (Q. B.) 349 ; Wells v. Mayor of Kingston upon Hull, L. R. 10 C. P. 402. (e) 25 & 26 Vict. c. 89, ss. 4, 6. 224 OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF twenty persons, and not so registered, are illegal associa- tions, and parties concerned therein are not entitled to the protection or assistance of the court (/). An unlimited company is simply a combination of several persons for some business, and the members stand in the position of ordinary partners, and liable to an un- limited extent for all the debts of the partnership, and the ordinary partnership rules generally apply to them (g). A company may, however, be limited if duly registered as such (h), and the members are then only liable to the extent of their respective shares or guarantees ; so that any person contracting with such a company must only look for payment to the assets of the company. How contracts Any contract made by a registered company need by*regfstemi Only be uudcr such company's seal when the same companies. would, if madc bv a private person, require a seal ; where, if made by a private person, writing would be necessary, signature by some person authorized by the company is sufficient ; and where no writing would be necessary if made by a private person, the contract may be made by parol by some person authorized by the company (/), and such authority may be implied as regards matters in the ordinary course of the com- pany's business, but not beyond that (Jc). A contract made by a person on behalf of an intended company cannot afterwards, on the formation of the company, be ratified by the company, but a fresh contract with the company must be entered into (l). Shares in a (/) Sykes v. Beadon, ii Ch. D. 170; 48 L. J. Ch. 822; Smith v. Anderson, 15 Ch. D. 247 ; 50 L. J. Ch. 39 ; 29 W. R. 21 ; Jennings v. Hammond, 9 Q. B. D. 225 ; 51 L. J. Q. B. 493 ; In re Padstow Assur- ance Association, 20 Ch. D. 137; 45 L. T. 774; Shaw v. Benson, 11 Q. B. D. 563 ; 52 L. J. Q. B. 575 ; Crowther v. Thorley, 48 L. T. 644 ; 31 W. R. 564- (g) As to which see ante, pp. 1 54- 1 63. \h) 25 & 26 Vict. c. 89. (t) 30 & 31 Vict. 0. 131, s. 37. (^•) In re Cunningham dj Co., Simpson's Claim, 36 Ch. D. 532. (I) In re Empress Engineering Co., 16 Ch. D. 125 ; 29 W. R. 342 ; 43 L. T. 742 ; In re Northumberland Avenue Hotel Co., Sully's Case, 33 Ch. D. 16 ; 54 L. T. 777 ; Kelner v. Baxter, L. R. 2 C. P. 174. ANY DISABILITY OF THE CONTRACTING PARTIES. 225 registered company may be transferred by deed duly registered at the company's office, or, in the case of such a company limited by shares, when shares are fully paid up, by simple delivery of share warrants (m). With regard to contracts made with persons acting Liability in on behalf of institutions and associations, such as ""e^pect of ' contracts on charities, clubs, and the like, the rule is that the behalf of 1 . , . . , . . n , cliarities and persons makmg, or authorizing the making, of the institutions contract are the persons liable, unless indeed the seneraliy. other party has specially agreed that he will look for payment only to the assets of the institution (n). And this rule applies to all miscellaneous undertakings, it being always a question, when a person disputes his liability, whether he in any way authorized what has been done, so as to make himself liable. Thus, if a person becomes one of a committee of direction of any such undertaking or institution, this will be evidence to shew that he has made himself liable for goods supplied for its purposes, even although he himself did not give, or assist in giving, the particular order in question (o). The mere fact, however, of a person being a member of a committee of management will not always in itself serve to render him liable ; it is only evidence of his having authorized the making of the contract. Thus, where wine for a club had been ordered by the house-steward of the club according to the directions of the committee of management, in an action brought against two members of that com- mittee, it was held that it was a question for the jury whether the defendants had authorized the steward to order the wine in question (p). (m) 30 & 31 Vict. c. 131, ss. 27-33. Tiie subject of companies is of such general importance that it is well worthy of some separate attention by every student. The student may gain a fair elementary knowledge on the subject from a perusal of Eustace Smith's Summary of the Law of Companies. See also Williams' Personal Property, Part iii. chap. i. (n) Coutts V. Irish Exhibition, W. N. (1891), p. 41 ; 90 Lavj Times Newspaper, 336; Law Students' Journal, April 1891, p. 81. (0) See Chitty on Contracts, 483, 484. (p) Todd V. JEmly, 8 M. & W. 505. P 226 OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF X. Master Contracts in the relation of master and servant may be conveniently considered under three heads, viz. : (i) As to the hiring ; (2) as to the power of the servant, and the relation between the parties during the service ; and (3) as to the determination of the service. As to the Firstly, then, as to the hiring. — There may be an " express contract for the hiring of a servant, and when there is, it may be either in writing or by word of mouth, unless it is a hiring for a period beyond a year, in which case writing is by the Statute of Frauds necessary {q), and it may perhaps be considered doubt- ful whether a contract for hiring and services for life does not require to be by deed (?'). In every express contract of hiring, its duration, and the wages in respect of the hiring, should be stated ; but if there is no express contract, but simply an entering into a service, it is called a general hiring, which has been decided to be for different terms according to the nature of the ser- vice (as will be next noticed), but in respect of which hiring it is always presumed, unless the contrary appears, that reasonable wages are to be paid (s). Diffeieutkiuds Pcrsous occupying the legal position of servants of servants. ^^^ ^^ classified as clerks, domestic or menial servants, and servants who are neither in the position of clerks Etfect of nor domestic or menial servants. A general hiring of a clerk is a yearly hiring determinable by three months' notice, or an equivalent three months' wages (t) ; a general hiring of a domestic or menial servant {q) 29 Car. 2, c. 3, s. 4, ante, pp. 53-55. {r) See notes to Mitchell v. Reynolds, i S. L. C. 430 ; Chitty on Contracts, 639. (s) Chitty on Contracts, 639. Payment of wages to workmen in public-houses is illegal, 46 & 47 Vict. c. 31 ; 50 & 51 Vict. c. 58, s. 11. Where there is an agreement entitling a master to retain a servant's wages, on breach by him of certain regulations, the servant must have an opportunity of first being heard on the matter before his wages can lawfully be declared forfeited {Armstrong v. South London Tramways Co., 64 L. T. 96). {t) Fairman v. Oakford, 5 H. & N. 635. general liiriug. ANY DISABILITY OF THE CONTRACTING PARTIES. 22/ is also a yearly hiring, but determinable by a month's notice, or an equivalent month's wages (w) ; and a general hiring of other kinds of servants, though it will be taken primarily as a hiring for a year (x), must depend more especially upon the circumstances of each particular case, as indeed it must to a certain extent in all cases, so that the fact of a servant's wages being payable at longer or shorter periods, as the case may be, may alter the presumption as to the hiring and the length of notice required, as also may a usage or custom in any particular trade or business. Although a general hiring of a servant may therefore be construed as a hiring for a year, and so on from year to year, yet as it need not necessarily extend beyond the year, it is valid though not in writing (y). Secondly, as to the poiver of the servant and the As to the relation hetioeen the parties during the service. — It rei^ant*, and will be at once seen that a person by entering into ^^^. relation •another's service becomes that other's agent for certain master and purposes, and that therefore the ordinary principles of agency apply, and answer the question of his power to bind his master by his contracts. These principles The ordinary of agency have already been considered, and the very agency IfppW great difference in the powers of a qeueral and special ^^ ^^^^^ agent pointed out {z) ; and it follows from that differ- ence that the power of a servant to bind his master must depend on whether he is merely a special agent, appointed simply to do some particular act, or whether he is a general agent, having a power given him by his master to do all acts of a certain nature. If he is of the former kind, then any contract which he makes (u) Fawcet v. Cash, 5 B. & Ad. 904. The housekeeper of a large hotel is not a menial servant, and cannot be dismissed on a month's notice in the absence of express agreement (Latvler v. Linden, 10 Irish Rep. C. L. 188). (x) Bayley v. Rimmel, I M. & W. 506. (y) Beeston v. Collyer, 4 Bing. 309. See as to contracts not to be performed within a year, a7ite, pp. 53-55. (z) See ante, pp. 144, 145. 228 OF SOME PARTICULAR CONTIIACTS IRRESPECTIVE OF can only bind his master when strictly in conformity with his master's orders ; but if he is of the latter kind, then any contract he may make will bind his master, even though it goes beyond his master's orders in the particular case, if it is within the scope of his ordinary and usual authority. As to torts A master is liable for his servant's torts when Ts'^r^lnt'^ ^^ committed by the servant acting in the course of his ordinary employment and duty, but he is not liable criminally for his servant's unauthorized acts («). Servant entitled to Ik- paid wages though dis- abled through temporary illness. INIustev not bound to pro- vide medical attendance. A servant is entitled to be paid wages during a time he was disabled from service by illness (b), and the relation between an ordinary master and servant (it is otherwise as to an indoor apprentice) does not make it obligatory on a master to provide medical attendance or medicines for his servant ; but if he sends for a medical practitioner for his servant whilst under his roof, he is liable, and he cannot deduct from the servant's wages any expenses incurred thereby, unless it was specially so agreed (c). Master not There was at common law no implied contract by ?ndemn\fy '<^ mastcT to indemnify his servant against any injury servant happeuiu'T in the course of his employment, or even against lu- '^^ , . . , . • i / 7\ juries, subject not to exposc his scrvaut to any extraordinary risks (rt) ; LiaSy'^Act, but there was always a duty cast on him to make 1880. ^^gg Qf proper tackle and machinery in his business, and also to employ duly competent co-servants ; and if any injury arose to the servant through the non- (a) See hereon, post, Part ii. chap. i. (6) Culcson V. Stones, I E. & E. 24S. (c) See Chitty on Contracts, 645 ; and the principle that a master its not bound to provide medical attendance or medicines for his servant is the same, even although the servant's illness has arisen through an accident which occurred in performing his duties as servant, unless, indeed, it arose in svich a way that the master could be held liable^ for it. (rf) KUey v. Baxendale, 6 H. & N. 445. ANY DISABILITY OF THE GONTKACTING PARTIES. 229 observance of such duties, the master was liable (e). This subject has been considerably affected by the Employers' Liability Act, 1880 (/), which is here- after fully dealt with {g). Thirdly, as to the determination of the service. — As to the The general way in which this happens is by notice ^f ui^^servke! either by the master or the servant, the length of which notice varies according to the contract for hiring or the nature of the service (A). In giving the notice, it is not necessary to allege when master any reason for it ; and in the following cases the servant with- master will be justified in putting an end to the *""* "°*'''^- contract of service without any notice : — 1. When the servant unlawfully absents himself from his work. 2, If he proves to be incompetent to perform any particular service which he had agreed to render. 3, If he refuses or neglects to obey his master's reasonable orders ; and 4. If he is guilty of any gross moral misconduct, or of habitual neglect in the performance of his duties. And in these cases the servant will only be entitled to wages already accrued due, so that if his wages are payable monthly, and he is discharged in the middle of a month, he forfeits his right to any part of such month's wages {i). (t) Wilson V. Merry, L. R. I H. L. Sc. 526. (/) 43 & 44 Vict. c. 42. (g) See post, Part. ii. chap. vi. {h) As to which see ante, pp. 226, 227. (i) Chitty on Contracts, 642, 643. As to the measure of damages in an action by a servant for wrongful dismissal, see post, Part iii. chap. i. 2^0 OF SOME PARTICULAR CONTRACTS. Master's liability as to giving a character t( his servant. The death of either master or servant will operate to dissolve the contract of service (k). A master is not bound to give his servant a character, but if he does so, he must give what he believes to be a true one ; if he wilfully gives a false character, he will be liable to an action for libel or slander ; but if he believes the character to be true, and gives it honestly and fairly without exaggeration, it comes within the designation of a privileged communication, and he is not liable (I). Many important ponits in the relation of master and servant belong to the second division of this work, viz. " Torts," and are there considered (m). (t) Farroiv v. Wilson, L. R. 4 C. P. 774 ; 3^ L. J. C. P. 326. {l) See post, Part ii. chap. v. (m) See post, Part ii., particularly chap, vi., "Of Torts arising peculiarly from negligence." OF CONTRACTS WITH PERSONS UNDER SOME DISABILITY. 23 1 CHAPTER VII. OF CONTRACTS WITH PERSONS UNDER SOME DISABILITY. In this chapter will be considered the position of the i. Infants, following parties as to their contracts : Infants, married women, persons of unsound mind, intoxicated persons, persons under duress, and aliens. An infant in the eyes of the law is a person under the age of twenty-one years, and at that period he or she is said to attain majority. For his torts and crimes an infant may be liable, but for his contracts, as a creneral rule, he is not liable, unless the contract is for necessaries. The law as to infants' liability on their contracts was much altered by the Infants Relief Act, 1874 (a), but to properly understand the application of that Act it will be necessary to first notice the law as it stood before its passing. On his contracts for necessaries an infant is now, and infant is always has been, liable ; and with regard to his other onTis^on- ^ contracts, they were not formerly actually void, but *g^c°*g^J°[e, only voidable, and accordingly, from the earliest times, capable of ratification after he came of age without any other con- new consideration ; and it was held that any act or Smerirbe declaration which recognized the original contract as ratified, binding was sufficient ratification. However, by Lord Lord Tenter- Tenterden's Act (5) it was provided that no action should be maintained whereby to charge any person upon any promise made after full age to pay any debt (a) 37 & 38 Vict. c. 62. \h) 9 Geo. 4, c. 14, s. 5. 232 OF CONTRACTS WITH PERSONS contracted uuritiL^^ infancy, or upon any ratification after full age of any promise or simple contract made during infancy, unless such promise or ratification was made by some writing signed by the party to be charged therewith (c). As to contracts not for neces- saries, therefore, tlie law, until lately, was that they might be ratified by the infant after coming of age by writing duly signed by him. Infants 13ut this is uo longer so, for by the Infants Relief Relief Act 1874. ' Act, 1874 {d), it is enacted that "all contracts, whether by specialty or by simple contract, henceforth 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 accounts stated with infants, shall be absolutely void ; provided always, that this enactment shall not invali- date 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 now by law are voidable " (e) ; and that " no action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during in- fancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not he any new considera- tion/or such promise or ratification after fidl age " (/). The law, therefore, as to infants' contracts at the present day is, that they are absolutely void and in- capable of ratification unless for necessaries, contracts as to which are good ; and it has been decided that (c) Signature by an agent was not sufficient, and 19 & 20 Vict. c. 97, s. 13, made no difference on this point. (d) 37 & 38 Vict. c. 62. (e) Sect. I. As to the latter part of this section, see note (/) infra. {/) Sect. 2. This Act, in making infants' contracts void, does not affect the powers of infants in certain cases to convey lands, viz. : By the custom of gavelkind at the age of fifteen by feoffment ; on marriage by the sanction of the court under 18 & 19 Vict, c 43 ; and by the sanction of the court for payment of debts under i Wm. 4, c. 47. UNDER SOME DISABILITY. 233 the Act applies to a ratification made after its passing of a debt contracted prior to it (17). In several cases since the Act the point has been I'romise to raised of the position of a person who, having during ",',fant.^^' infancy entered into a contract to marry, after full age recognizes the promise by continuing his position as before, or again promises to marry the party in ques- tion. It has been held that, with regard to ratification, the Infants Relief Act, 1874, applies to this in the same way as to other cases, and that in the absence of some distinct evidence of a new promise no action can be maintained (h). It is, however, in such cases very difficult to determine whether what has taken place is in fact a new contract or is only an attempted ratification. Thus, in one case, the defendant, when an infant, made a promise of marriage to the plaintiff, and the day after he had attained his majority he said to her, " Now I may and will marry you as soon as possible." It was held that it was a question of fact for the jury whether this was a fresh promise, or a ratification of the promise made during infancy (i). In another case the defendant, who had promised the plaintiff marriage when under age, continued in the same familiar position with her for four years after comin" of age, and it was held that there was here evidence to go to the jury of a new promise having been made (A). The iTifants Eelief Act, i 874, whilst providing that infant liable . ,. , 1111 -1 1 .for necessaries. an infants contract shall be void, expressly excepts a contract for necessaries ; and in addition to this the Sale of Goods Act, 1893 (I), enacts that where (g) I'x parte Kibble, Re Onslow, L. R. 10 Ch. 373 ; 44 L. J. Bk. 63. (A) Coxhead v. MulUs, 3 C. P. Div. 439 ; 47 L. J. C. P. 761. (i) Northcote v. Doughty, 4 C. P. D. 385. (k) Ditcham v. Warrall, 5 C. P. D. 410 ; 49 L. J. C. P. 688 ; 29 W. R. 59 ; see also Holmes v. Brierhj, 36 W. R. 795. (Z) 56 & 57 Vict. c. 71, s. 2. 234 OF CONTRACTS WITH PERSONS Functions of judge and jury. The meaning of tlie term "necessaries.' necessaries are sold and delivered to au infant, he must pay a reasonable price therefor. It is impor- tant, therefore, to properly understand the meaning of the term " necessaries," and it may also be well to mention that in any action against an infant for necessaries, it is for the judge to first consider whether the goods are of such a nature as could possibly come under that description, and if not, there is nothing to go to the jury, and the plaintiff will be non-suited ; but if the judge is of opinion that the goods are of such a nature that they may be considered necessaries, he leaves it to the jury to say whether, under the particular circumstances of the case, they are in fact necessaries. As a matter of course, the term " neces- saries " will include all things essential for existence, and without which a person cannot reasonably be supposed to live, viz. ordinary lodging, food, and clothing ; but it has a much wider application than this, and many things not actually essential to exist- ence are included under it. The rule as to what will be deemed necessaries has been stated as follows : "All such articles as are purely craamental are not necessary, and are to be rejected, because they cannot be requisite for any one ; and for such matters, there- fore, an infant cannot be held responsible. But if they are not strictly of this description, then the question arises whether they are bought for the neces- sary use of the party, in order to maintain himself pro- perly in the degree, state, and station of life in which he moved ; if they were, for such articles the infant may be responsible " (m). Instance. To take an instance to exemplify this rule, it has (m) Per Parke, B., in Peters v. Fleming, 6 M. & W. 47. See further as to meaninsj of term "necessaries," Skrinc v. Gordon, 9 Irish Reps. C. L. 479. the Sale of Goods Act, 1893 (56 k 57 Vict. c. 71, s. 2), also contains a definition of "necessaries," it enacting as follows: "Necessaries in this section mean goods suitable to the condition in life of such infant or minor, or other person, and to his actual requirement at the time of the sale and delivery." UNDER SOME DISABILITY, 235 been held that an infant is liable for the price of horses bought by him if his position warranted his keeping horses, or if riding was recommended by his medical adviser (n). To enumerate a series of cases in which things have or have not been held to be necessaries would be useless, and the answer to the question of what are necessaries for which an infant will be liable may be shortly stated to be, that he will be liable not merely for the bare essentials of life, but also for edu- cation, and generally for anything suitable to his rank and condition in life, and it will always be a question for the jury whether an infant is liable or not in every particular case (o). Where an infant is sued Evidence to for the price of goods supplied to him on credit, he necesskries. may, for the purpose of shewing that they were not necessaries, give evidence that when the order was given he was already sufficiently supplied with goods of a similar description, and it is immaterial whether the plaintiff did or did not know of the existing supply (p). If an infant has a wife or children, he Necessaries for will be equally liable for necessaries supplied to her children, or them as if supplied to himself (q). The statement that an infant is liable for necessaries An infant is must, however, be taken with the following restric- necessaries if tion, viz. that if an infant is residing under the [^'j'j;^^^;}'^'" parental roof, he cannot generally be made responsible roof. even for necessaries, for in such a case the presump- tion is that the credit is intended to be given to the parent, and not to the infant (r). It must not. Nor is the however, from this be taken as law, that in such a s^riiy liable, case the parent is necessarily liable for such things supplied to his child living with him, for he is not so (n) Hart v. Prated', I Jur. 623. (o) See hereon Ryder v. Wombwell, L. R. 4 E.v. 32 ; and also Chitty on Contracts, 196-206. (p) Baines v. Toye, 13 Q. B. D. 410 ; 53 L. J. Q. B. 567 ; 51 L. T. 292 ; 33 W. R. 15. (q) Turner v. Trishy, i Str. 168 ; Chitty on Contracts, 142. (?•) Chitty on Contracts, 207. 236 OF CONTRACTS AVITH PERSONS liable as a matter of course, it beiug always necessary., to render the parent liable, to shew that he in some way — either by a precedent act or a subsequent rati- fication — authorized his child to contract, and to bind him ; for if he has in no way given any authority, he is no more liable to pay a debt contracted by his child, even for necessaries, than a stranger would be. But slight evidence of the parent's authority will usually be sufficient, so that if goods are delivered at the parent's residence, this will jjrivid facie raise a presump- tion of his liability (s) ; though if, directly he heard of the goods or saw them, he objected to them, this would operate to rebut that liability. Infant not liable for money lent, unless ad- vanced to buy necessaries. For money lent to an infant not for the purposes of buying necessaries, he is, of course, not liable, but if money is advanced to him to procure necessaries, and is so expended by him, the court will order repayment to the lender, on the ground that he stands in the place of the infant's creditor, who could have recovered Nor is lie liable against him had his claim not been satisfied (t). The 11 h^e^halrepr"''*^ mere fact of a person having fraudulently represented sented himself himself to be of age when in fact he was an infant, to be of age. ° is not sufficient to render him liable. Thus, where an infant had obtained a lease of a furnished house on an implied representation that he was of full age, it was held that although the lease must be declared void, and possession ordered to be delivered up, yet the infant was not liable for use and occupation (m). Infant not liable on a bill or note, though for necessaries. An infant is not liable on a bill of exchange or pro- missory note to which he is a party, although it was given for necessaries (x), but though not liable on the (s) Chitty on Contracts, 207. (t) Martin v. Gale, 4 Ch. D. 428 ; 46 L. J. Ch. 84 ; Bnteman v. Kingston, 6 L. R. Ir. 328 ; Lewis v. Alleyne, 32 Solicitors' Journal, 486 ; Law Students' Journal, July 1S88, p. 150. (u) Lempriire v. Lange, 12 Ch. D, 675 ; see also Batcman v. King- ston, 6 L. R. Ir. 328. (a;) Re Soltykoff, Ex parte Margrett, C. A. (1891), i Q. B. 413 ; 60 L. J. Q. B. 339. UNDER SOME DISABILITY. 237 bill, he may yet be sued on the original debt for neces- saries. A bill given by an infant is, however, good as against the other parties thereto {y), unless it is a bill given after coming of age in respect of a loan made during infancy, in which case it is provided that the instrument shall be void as against all persons what- soever (z). Infancy is a personal privilege, and does not affect infancy is the other contracting person's liability, so that though privUeTe* an infant is not liable generally to be sued on his con- tracts, he is capable of suing, subject to this, that he cannot sue for specific performance of a contract {a). With regard to certain of an infant's contracts, embrac- Continuous ing matter of a continuous nature, they stand in this which infant different position from his other contracts in that, il' \^^^^ ^V!f- ■L _ _ ' does not dis- the infant does not disaffirm the contract within a affirm on reasonable time of attaining majority, he will be bound. This is so with regard to an infant's contract to buy land (h) ; also in the case of a lease made by an infant, who is bound thereby if he receives rent after he comes of age ; also with regard to shares in a company or a building society taken by an infant ; also in the case of his having entered into partnership (c). And if an infant makes a marriage settlement which is not binding on him, but he does not repudiate it within a reasonable time after attaining majority, he is bound thereby {d). Where an infant has contracted for things, not neces- saries, and has paid for them, he cannot afterwards (y) 45 & 46 Vict. c. 61, s. 22 (2). (z) 55 & 56 Vict. c. 4, s. 5. (a) Bateman v. Kingston, 6 L. R. Ir. 328. See Indermaur's Manual of Equity, 230. (6) Prideaux's Conveyancing, vol, i. p. 175, where it is also stated. " It is apprehended that an infant who has paid a deposit on a contract for purchase, is entitled to recover it if he refuses to complete when he comes of age. " (c) He YeolantVs Consols, 58 L. T. 922 ; Whittingham v. Murdy, 60 L. T. 956 ; Anson's Contracts, 108, 109 ; see also ante, pp. 161, 162. (d) Edwards v. Carter, (1893), A. C. 360; 63 L. J. icx) ; 69 L. T. 153 ; Re Hodson's Settlement, Williams v. Knight, (1894), 2 Ch. 421 ; 63 L.J. Ch. 609; 71 L. T. 77. 238 OF CONTKACTS WITH PERSONS recover back the amount if he has received any benefit from the contract {e), but if he has in fact received no benefit whatever, it is otherwise (/). Infant not Although an infant's contract to marry stands on the contract to same footing as any ordinary contract he enters into — marry. ^- ^^ ^-^q infant is not liable on it, but can sue in respect of jjut if it — yet if the infant actually completes the contract by marriage • 4.1 u ti, • • j-i takes place, it gomg through the mamage ceremony in the manner bindin^'^^^'^ prescribed by law, then if a male, and of the age of fourteen or upwards, or a female, and of the age of twelve or upwards, it is absolutely binding ; or if under those ages, but not under the age of seven, then he or she may avoid the marriage on arriving at such ages respectively ; but if either party is under the age of seven, then the marriage is absolutely void. Liability An infant may bind himself as an apprentice, be- ef infant \ ■ e t ■ ^ n apprentice. cause that IS lor his benefit ; and a covenant entered into in the apprenticeship deed by an infant to pay a premium, is capable of being enforced if the deed was a provident and proper arrangement for him, and necessary if he wished to learn the business, and pro- vided that the amount of the premium is fair and reasonable, and that the instruction has duly been given under the deed {g). If an apprentice mis- behaves himself in his service, the master may correct him, or complain to a justice of the peace to have him punished according to the statute {h) ; but the master cannot sue the infant for damages, or for an injunction in respect of breach of contract contained (e) Valentini v. Canali, 24 Q. B. D. 166; 59 L. J. Q. B. 74; 61 L. T. 731. (/) Hamilton v. Vaughan-Sherrin Electrical Engineering/ Co., (1894), 3 Ch. 589 ; 63 L. J. Ch. 795 ; 71 L. T. 325. (g) Walter v. Everard, (1891), 2 Q. B. 369; 60 L. J. Q. B. 738; 65 L. T. 443- (A) Unless indeed the apprentice is an infant, and the apprenticeship deed contains such conditions that it is manifestly not for his benefit, in which case it cannot be enforced at all against him {Corn v. Matthews, (1893), I Q. B. 310 ; 62 L. J. M. C. 61 ; 68 L. T. 482). IJNDEK SOME DISABILITY. 239 in the apprenticeship deed, though, of course, he can sue the father or other person who may have joined in the deed and covenanted (i). It has been already stated, incidentally, that an infant infants' torts, is liable in respect of his torts, so that, for instance, an action for assault, libel, or trespass may be brought against him. But if the tort is one arising out of contract, then the infant cannot be sued, so that where an infant, having hired a horse, drove negligently and injured the animal, it was held he could not be sued (k) ; but where a horse was hired by an infant expressly for driving only, and the animal was injured through being jumped, the contrary was held, on the principle that the jumping of the horse was quite outside the hiring, and that it was not strictly a tort arising out of the con- tract (l). Though an infant cannot ordinarily be sued for money had and received, yet if he wrongfully em- bezzles money he may be sued for that (m) ; and where, having embezzled money, an infant on coming of age gave a memorandum of charge on certain property to secure payment of the amount, it was held that, being liable to an action of tort, he gave the charge to avoid being sued, and that the charge was perfectly valid (?i). The position of married women as to their con- 11. Married tracts may be conveniently considered in the following ^"'"^°- order : — 1. As to their contracts made before marriase. 2. As to their contracts made after marriase and during cohabitation ; and (i) Gilbert v. Fletcher, Cro. Car. 1 79 ; Be Francesco v. Barnum, 43 Ch. D. 165 ; 59 L. J. Ch. 151 ; 62 L. T. 40. See also Chitty on Con- tracts, 198, 199. (Ic) Jennings v. Randall, 8 T. R. 335. (l) Burnard v. Haggis, 14 C. B. (N. S.) 45. (m) Chitty on Contracts, 205. (n) Re Meager, Seeley v. Briggs, 60 L. T. 665. 240 OF CONTRACTS WITH PERSONS 3. As to their contracts made after marriage and during separation. r. As to their contracts made before marriage. Rights of husband in wife's per- sonal property, What is a suflBcient reduction into possession. Firstly, as to contracts made before viarriage. — Here it is apparent that there may be a benefit or a liability in respect of them, and any such benefit being an outstanding right, is a chose in action. The effect of marriage upon personal property in possession has until lately been that it operated as an absolute gift of it in law to the husband, so that from that time it was no longer her property, but his in every way; but with regard to mere choses in action this has never been so, for to entitle the husband to them he must have reduced them into possession, and if he did this, then they formed part of his estate in the same way as choses in possession ; but if he did not reduce them into possession, and his wife died, he would not then be entitled to them jure mariti (that is, in his capacity of husband), but only by taking out letters of adminis- tration to his wife, and thus constituting himself her legal personal representative, which made a very great difference, for if he took jure mariti, he was not bound to pay her debts which might possibly exist. If the wife survived the husband, then her choses in action not having been reduced into possession, survived and belonged to her. To constitute a sufficient reduction into possession by the husband it was technically said that he must take some step shewing his disagreement to, and extinguishing, the interest of his wife, e.g. of course the actually receiving the principal money would always so operate, though not the mere receipt of interest, and again, the recovery of judgment in an action brought by husband and wife would be suffi- cient (0). (o) The subject of married women's property and the position of married women as to separate estate, &c., belongs more particularly to equity, and the student is referred to Indermaur's Manual of Equity, Part iii. ch. vi. UNDER SOME DISABILITY. 24 1 With regard, however, to all marriages on or after iMarried 1st January 1 883, it is now provided that all property S-operty Act, which a woman is then possessed of, as well as property ^^^^• she shall thereafter acquire, shall be to her separate use (jj). This is also to be the case as regards any property the title to which accrues to a woman on or after ist January 1883, although married before the Act {q). As to the liability of the husband, at common law Liability of the rule was absolute that he was liable for all his w^fe^s con-" wife's contracts and debts entered into and contracted ^''^Z*^ "^'^^^ beiore by her before marriage, and also for her torts, whether marriage. he had any property with her or not ; but this liability ended with her death, unless he took out administra- tion to her choses in action, when he would still be liable as administrator to the extent of her assets (r), but the rule has now been very materially altered, as is next stated. By the Married Women's Property Act, 1870 (s), Married it was provided that " a husband shall not, by reason pro™eny of any marriage which shall take place after this Act f^^' ^^7°. has come into operation {t), be liable for the debts of his wife contracted before marriage, but the wife shall be liable to be sued for, and any property belonging to her for her separate use shall be liable to satisfy such debts as if she had continued unmarried." This statute did not alter the husband's liability for his wife's ante-nuptial torts (w). A very short trial of the provision in the Act of ip) 45 & 46 Vict. c. 75, s. 2. {q) Sect. 5. See hereon Reid v. Reid, 31 Ch. D. 402 ; 54 L. T. 100 ; 55 L. J. Ch. 294 ; 34 W. R. 332. (r) Chitty on Contracts, 270-272 ; Edwards and Hamilton's Law of Husband and Wife, 117, 139. (») 33 & 34 Vict. c. 93, 8. 12. (0 August 9, 1870. (w) Edwards and Hamilton's Law of Husband and Wife, 139. Q 242 OF CONTRACTS WITH PERSONS Injustice caused by this provision. Married 1870 shewed that as it stood it was too extensive, for it created a possible manifest injustice. It provided that the husband should never be liable for his wife's ante-nuptial debts ; but yet in many cases the husband miorht have property through his wife, and it not being to the wife's separate use, the creditor had no hold on it. To remove this injustice, therefore, the Married Women's Property Act Amendment Act, 1874 (x), Pio'"eTt\ct ^'^s passed, which repealed so much of the Married Amendmeut Women's Property Act, 1870, as enacted that a hus- *" ' ^ ^'*" band should not be liable for the debts of his wife contracted before marriage, so far as respects marriages taking place after the passing of that Act (y), and provided that a husband and wife married after the passing of that Act might be jointly sued for any such debt (2), but that the husband should in such action, and in any action brought for damages sustained by reason of any tort committed by the wife before marriage, or by reason of the breach of any contract made by the wife before marriage, be liable to the extent only of the assets acquired through his wife as therein specified. Married W^omeu's Property Act, 1882. The Married Women's Property Acts of 1870 and 1874 have, however, now been repealed, except as regards the rights and liabilities of persons married before ist January 1883 (a), as to whom the law remains as above stated. In substance the provisions of the Act of 1874 on this point, given in the last paragraph, are re-enacted, it being, however, specially provided that the husband and wife may be sued together or separately, so that a husband is liable even after his wife's death for her ante-nuptial debts or torts to the extent of any assets he had with her (h), (x) 37 & 38 Vict. c. 50. (y) July 30, 1874. {z) Sect. I. (a) 45 & 46 Vict. c. 75, s. 22. (6) Sects. 13-15. Edwards and Hamilton's Law of Husband and Wife, 117, 140. UNDEK SOME DISABILITY. 243 which was not the case uuder the Act of 1874 (<^)' If a creditor sues the wife alone, and obtains judgment against her, such judgment is a personal one, and not one limited merely to the separate estate (d). If, having got such judgment, the creditor cannot succeed in enforcing payment, the judgment is no bar to a subsequent action against the husband, who has had assets with her, and who might therefore have been sued in the first instance (e). Any question, therefore, as to the liability of a Summary as husband for his wife's ante-nuptial debts or torts must husSld'for ^ depend on the date of the marriage : if it took place '^i^^'^ ^'^'^^- ,„ , , p I, ^ -i-T-iini nuDtial debts before the 9th of August 1870, he is liable for them and torts, all; if between that date and before the 30th of July 1874, he is not under any liability in respect of ante- nuptial debts, but he still remains liable for ante-nuptial torts ; if on or since this latter date and prior to 1st January 1883, he is liable for either ante-nuptial debts or torts to the extent of the assets or property which he has or acquires with or through his wife, but they must be sued together; and if on or since ist January 1883, he is liable for them both to the extent of such assets or property, and may be sued together with or separately from his wife. Secondly, as to contracts made after marriage and 2. As to con- during cohabitation. — Marriage produced a general dis- dm?ng™ohabi- ability on the part of the wife to contract, so that no t'^tio"- contract that she might make would be binding on her, and any advantage she might acquire thereunder vested in her husband. But some contracts (/) of a married woman always bound her separate estate in (c) Bell V. Stacker, 10 Q. B. D. 129 ; 52 L. J, Q. B. 49 ; 47 L. T. 624; 31 W. R. 183. (d) Robinson v. Lyncs, (1894), 2 Q. B. 577 ; 63 L. J. Q. B. 759; 71 L. T. 249. (e) Beck v. Pierce, 23 Q. B. D. 316 ; 58 L. J. Q. B. 516 ; 61 L. T. 448. (/) See Hulme v. Tenant, i White and Tudor's Leading Cases in Equity, 521. 244 OF, CONTRACTS WITH PERSONS equity; and besides this, there were several excep- tions to the rule, which were chiefly as follows : — Cases in wiiich I • Where the husband was banished, or transported, a married ^j. gufferin"- Sentence of penal servitude, the wife could woman was ° . , , x i always in the coutract, sue, or be sued as if she M-ere a jcme sole. position of a feme sole. ^ Where the husband had not been heard of for a period of seven years she might also do so, as he was then presumed to be dead (g). 3. Where a judicial separation had been obtained under the Divorce Act she might also do so (h), or where under the Matrimonial Causes Act, 1878, a separation order had been obtained, which that Act provides shall, as regards her property, have the same effect as a decree of judicial separation (i). 4. Under the Divorce Act (A) a married woman may obtain an order, called a protection order, when she has been deserted by her husband, protecting her earnings or property acquired since desertion from her husband and persons claiming under him. Position under And uow by the Married Women's Property Act, the Married i882 (/) a married woman may generally contract in Women sV/' /\ij Property Act, rcspcct of all her separate property {m), and render '^^^' herself liable thereupon as though she were a feine sole. This statute also enacted that every contract entered into by her should be deemed to bind her separate property which she then had or might thereafter acquire, unless the contrary was shewn {71). It was held under this enactment, that to render subsequently acquired separate estate liable, a married woman must have been possessed of some separate estate at the (g) See Nepean v. Doe, 2 S. L. C. 584 ; 2 M. & W. S94. (A) 20 & 21 Vict. c. 85, s. 25. (t) 41 Vict. c. 19, s. 4. Ik) 20 & 21 Vict. c. 85, s. 21. (1) 45 & 46 Vict. c. 75. (m) Sect. I (2). (n) Sect. I, (3), (4). UNDER SOME DISABILITY. 245 time of contracting the debt (0), and it was necessary in every action on contract against a married woman that this should be alleged in the statement of claim, and duly proved (p). This has, however, now been altered by the Married Women's Property Act, 1893 (2)> which provides that every contract thereafter (r) entered into by a married woman otherwise than as agent, shall be deemed a contract entered into by her with respect to and to bind her separate property, whether she is or is not in fact possessed of or entitled to any separate property at the time when she enters into such contract, and shall bind all separate property which she may thereafter be possessed of or entitled to, and be enforceable also against all property which she may thereafter while discovert be possessed of or entitled to (s). It has been decided that a married woman cannot Married be made a bankrupt in respect of a debt for which she cIm!ot be made is liable, even thoup'h she has a separate estate (t) ; but ^^^'^^"ipt ' ^ f \ / ' unless trading it is now provided by the Married Women's Property .ip;irt from Act, 1882, that if a married woman is carrying on a trade separately and apart from her husband, she shall in respect of her separate property be liable to the bankrupt laws (u). A married woman cannot be com- mitted to prison under the provisions of sect. 5 of the Debtors Act, 1869, for non-payment of a judgment debt contracted during coverture, for the liability created by the Married Women's Property Act, 1882, (o) Palliser v. Gurney, 19 Q. B. D. 519; 56 L. J. Q. B. 546 ; 35 W. R. 760. {p) Ttthy V. Griffith, 57 L. T. 673 ; 36 W. R. 96. (q) 56 & 57 Vict. c. 63, s. I. (V) 5 Dec. 1893. (s) yub-sections (3) and (4) of sect. I of 45 & 46 Vict. c. 75 are re- pealed by this statute (sect. 4). [t) Ex parte Holland, In re Heneage, L. R. 9 Ch. App. 307 ; 43 L. J. Bk. 85 ; Ex parte Jones, In re (irissell, 12 Ch. D. 4S4 ; 48 L. .J. Bk. 109. (n) 45 & 46 Vict. c. 75, s. I (5) ; Ee Gardiner, Ex parte Coidson, 20 Q. B. I). 249 ; 58 L. T. 1 19 ; 36 W. R. 142. The expression " separate property" does not include a general power of appointment (Ex parte Gilchrist, In re Armstrong, 17 Q. B. D. 521 ; 55 L. J. Q. B. 578 ; 55 L. T. 538 ; 34 W. R. 709). 246 OF CONTEACTS WITH PERSONS IMariied woman suing or defending;. is not personal, but is merely in respect of her separate property (x). A married woman, until lately, has sued either together with her husband or by her next friend ; but now, under the provisions of the Married Women's Property Act, 1882 (y), she may in all cases sue or be sued as if she were a feme sole, and her husband need not be joined. It was decided under this provision that a married woman might sue alone, even though the cause of action arose before ist January 1883 (2), and that as a married woman's right to bring an action in her own name dated from the commencement of the Married \yomen's Property Act, 1882, she might, within the statutable limits from that date, bring an action for a cause which accrued many years previously to that date, but while she was a married woman (a). The wife's The question of the power of a wife living with bhldhigthe her husband to bind him is one of great importance. husband. rp^^ earliest leading case constantly referred to upon Manhy V.Scott, the subject is that of Manbij v. Scott (h), which may be taken as laying down the broad principle that a wife's contract does not bind her husband, unless she acts by his authority. The wife, therefore, may be said to stand in the position of an agent, but to some extent as an agent of a peculiar kind ; for the general rule is that, apart from any special power or authority that may be given her, from her very position of living as a wife (c) she is presumed to be invested with an (a-) Scott V. Morley, 20 Q. B. D. 120 ; 57 L. J. Q. B. 43 ; 36 W. ^- 97 ; 57 ^- T. 919. But it is otherwise as regards a judgment obtained against a married woman in respect of an ante-nuptial debt {Robinson v. Lynes, (1894), 2 Q. B. 577 ; 63 L. J. Q. B. 759 ; 71 L. T. 249). {y) 45 & 46 Vict. c. 75, s. I (2) ; Order xvi. r. 16. (2) Weldon v. Winsloiv, 13 Q. B. D. 784 ; 53 L. J. Q. B. 528 ; 51 L. T. 643. (a) Weldon v. Neal, 32 W. R. 828 ; 51 L. T. 2S9. {b) 2 S. L. C. 445 ; I Levintz, 4. (c) And this principle applies to a woman living with a man as his wife, though not actually married, and even although the tradesman knows she is not married {Watson v. Threkeld, 2 Esp. 637). UNDER SOME DISABILITY. 247 authority to bind him for necessaries suitable to his rank and condition (d) ; but (as was decided in the case of Montagiic v. Benedict (e) ) this does not extend Montagve v. to anything beyond actual necessaries, for as to any- -^^"^ ^'^^' thing beyond this to bind the husband some evidence of his assent must always be shewn (/). But a husband is not in all cases absolutely liable Husband not for necessaries, for as the power of a wife to bind her even for husband for them only arises from his 2)resumed autho- i^ecessanes. rity to her, such authority is liable to be rebutted by its being shown that she was kept fully supplied by her husband with all necessary articles. This is shewn by the leading case of Seaton v. Benedict (g). So also Seaton v. modern cases have decided that this presumption of liability may be rebutted by shewing a prohibition Joilp v. itees. by the husband to the wife, forbidding her to pledge his credit, or by an agreement between them to that effect (h). This may at first sight seem somewhat to Explanation, militate against what has been before explained with regard to general agency (i), namely, that a principal is liable for all acts of his general agent coming within the scope of his ordinary authority, although done con- trary to the principal's directions, if they were not known to the contractee ; but the reason of the deci- sion is, that the wife does not, simply as wife, actually stand in the position of general agent for her husband, but is only presumed to do so, and that this presump- tion is always liable to be rebutted. If the position of agent is actually constituted by the husband allow- ing the wife to contract, then no doubt, to prevent his being further liable for necessaries, he must have given notice to the tradesman. (d) Etherington v. Parrott, Lord Raym. 1006. (e) 2 S. L. C. 504 ; 3 B. & C. 673. (/) See Jetley v. Bill, i C. & E. 239. ig) 2 S. L. C. 512 ; 5 Bing. 28. (A) Jolly V. Recs, 15 C. B. (N. S.) 628 ; 12 W. R. 473 ; 43 L. J. C. P. 177 ; Bebenham v. Mellon, 6 App. Cas. 24 ; 50 L. J. Q. B. 155 ; 43 L. T. 673; 29 W. R. 141. (i) Ante, p. 145. 248 OF CONTEACTS WITH PERSONS Correct answer To Summarize the foregoing remarks, the answer to to the question ,i ,. ■, , i. ^ e -c ,.,.. of what con- the question, what contracts of a wife who is Jiving rnr^ d^ '^ with her husband will bind him, may be stated woman living as follows : All her contracts entered into with his husband will express or implied authority will bind him, and his bind inm. authority will be implied for necessaries, but only for necessaries {k) ; and this implied authority is liable to be rebutted by shewing that she is already fully supplied with necessaries (/), or that the husband has forbidden lier to pledge his credit, or that they have so agreed between themselves, even altiiough unknown to the tradesman, unless indeed the husband has previously actually constituted her his agent, when this must be communicated to the tradesman {m). 3. As to con- Thirdly, as to contracts made after marriage, hut tracts made 7-7^^7 ,• i- • t /. during sej. a- wliitst tiu parties are Living separate and apart from ration. ^^^j^ otlicr. — The separation never made any difference in the wife's former incapacity to contract, so as to bind herself, and the observations previously made hereon, under the second division of this subject, apply equally here {n) ; but the wife's power to bind her husband stands on a totally different footing, for in the case of husband and wife living together, we have seen that, from tlieir so living together, the presumption is that the husband is liable for necessaries ; but here there is no such presumption, and it is always incumbent on a creditor seeking to charge the husband, to shew that the wife, from the circumstances of the separation, or from the conduct of the husband, has such an im- plied authority (o). The wife's power, therefore, to bind her husband by her contracts depends on the way in which the separation occurred, which may be either {1-) Montague v. Benedict, ante, p. 247. \l) Sta'on V. Benedict, ante, p. 247. (m) Jolly V. Bees, Dehenham v. Mellon, ante, p. 247. (n) Ante, pp. 243, 244. (0) See Johnston v. Sumner, 3 H. & N. 261 ; Mainwaring v. Leslie, M. & M. 18 ; Eastland v. Burchell, 3 Q. B. D. 432 ; 47 L. J. Q. B. 500. UNDER SOME DISABILITY. 249 by the fault of the husband, by the fault of the wife, or by mutual consent and arrangement. Where the separation is by the fault of the husband, Where the e.g. if he either actually turns his wife away, or refuses by^rhus" '^ to receive her, or behaves in such a way, either by ^'^">^f. ^fj'^*; ' _ •' ' •' he IS liable for cruelty or otherwise, as to render it impossible for her necessaries. to continue to live with him, then unless she has an adequate allowance for maintenance paid to her, she goes forth to the world with full authority to bind him for necessaries, which authority the husband cannot deprive her of, even though he gives particular notice to the tradesmen not to trust her {p), and in this case if the husband seeks to exonerate himself by shewing a separate allowance, it is a question for the jury whether or not it is adequate {q). Where the separation is by the fault of the wife, as But the if she elopes and lives in adultery, or the husband turns thrsepaTatlon her away for adultery, or she voluntarily, and without ^^V^. H'.^ ,. fault on his part, simply leaves him, she has no autho- rity to bind him for necessaries in any degree (r). And even though she originally leaves him on account of his misconduct, but then she commits adultery, she has no further power to bind him (s). Where the separation is by mutual consent, the rule where separa- is, that the wife has an implied authority to bind her coTse^iftfhur-'^^ husband for necessaries, unless there is some express ^^V^ ^'^^^^® '- unless a agreement between the husband and wife on the contrary subject of the separation and the rights of the wife. ^°''^®™'^° • (p) Johnston V. Sumner, 3 H. & N. 261 ; Boulton v. Prentice, Selwyn's N. P. 334. (g) Uodghinson v. Fletcher, 4 Camp. 70 ; Emmett v. Norton, 8 C. & P. 506. (?•) Chitty on Contracts, 2S4, 285 ; 2 S. L. C. 535. And there is no ]iai)ility on the husband even under the Poor Law Amendment Act, 1878 (31 & 32 Vict. c. 122, s. 33), to support a wife with whom he has ceased to cohabit in consequence of her adultery {Culley v. Char- man, 7 Q. B. D. 89 ; 50 L. J. M. C. in ). (») Govier v. Hancock, 6 T. R. 603. 250 OF CONTRACTS WITH PERSONS Although it was at one time considered that, in sucli a case as this, to exonerate the husband it was necessary to shew that the wife had from some source adequate separate maintenance, it appears to be now clear that it is not necessary to shew this, but that, when the parties separate by mutual consent, they may make their own terms and conditions, and, so long as the separation exists, these terms are binding on them both (t). If, however, under the agreement of sepa- ration, a certain allowance is to be paid, if it is not kept up, the wife may bind the husband by contract- ing to the extent of it (u). Effect of notice From the foregoing remarks, it will be seen that to I'y aTusWnr givc a correct answer to any general question on the that he will iiot pQ^^er of a wife to bind her husband during separation, be answerable ^ _ . for his wife's the different ways in which the separation may have occurred must be stated (x). The student may perhaps have sometimes observed in the newspapers notices by husbands that they decline to be answerable for the debts of their wives, and applying to that fact what has been stated in the previous pages on the subject of the husband's liability, he will see that any such notice can have no legal effect or object where the parties are actually separated ; for if the separation has taken place by the wife's fault, there is no need for any such notice, for the husband is not liable anyhow ; if by the husband's fault, then he is liable, and any such notice cannot lessen his liability ; and if by mutual consent, the husband is not liable if the arrangement between them is that he shall not be. However, such notice by advertisement may have some effect where husband and wife are living together, and he has actually con- [t) Biffen v. Bignell, 7 H. & N. 877 ; 31 L. J. Ex. 1S9 ; Eastland v. Burchell, 3 Q. B. D. 432 ; 47 L. J. Q. B. 500. (m) Nurse v. Craig, 2 N. R. 148. (x) See hereon, generally, notes to Manhy v. Scott, Montague v. Bene- dict, and Seaton v. Benedict, in 2 S. L. C. 466-540, and cases there quoted. UNDEK SOME DISABILITY. 25 I stituted her his agent, but has since withdrawn his authority to her to pledge his credit ; for in such a case, as has been pointed out, the principle of private notice or arrangement being sufficient does not apply {y). If a husband, by his conduct, renders it necessary Husband is for his wife to protect herself by applying for him to casts^of^Liy** be bound over to keep the peace, the costs of such proceeding ^ ^ ' rendered application will always fall on the husband, and he necessary ))y will be liable to an action by the solicitor who has incurred such costs, and this even although he allow and pay her separate maintenance, for he has no right to diminish her means by his improper conduct (z). And the same rule will also, generally speaking, apply as to the costs of other proceedings rendered necessary by his conduct, e.g. the costs of the institution of an action for divorce, or for judicial separation, or the costs of necessary advice taken by the wife (a), A husband, although he may be liable under the Money lent to circumstances for necessaries supplied to his wife, necessaries^ would not at law have been liable for money lent to his wife, even for the purpose of buying necessaries (5). It was, however, otherwise in equity if the money so lent was actually expended on necessaries (c), and the equity rule now prevails (d). It has before been pointed out, in considering the Effect of con- subject of agency, that if a married woman, having fornecesIiVfes, {y) Ante, p. 247. (z) Turner v. Jiookes, lO B. & E. 47. (a) Broivn v. Ackroyd, 5 E. & B. 819 ; Wilson v. Ford, L. R. 3 Ex. 63 ; Ottaway v. Bamdtoii, 3 C. P. D. 393 ; 47 L. J. C. P. 725. The case of In re Hooper, 33 L. J. Cli. 300, dues not clash with the general rule stated in the text, the reason of the husband being there held not liable being that there was no reasonable foundation for the wife's proceedings ; but in so far as any observations in that case tend to decide that to render the husband liable for the costs of any proceed- ings they must have resulted in actual success, it is submitted that it is clearly not law, and that it is sufficient that there was a reasonable ground for such proceedings. And see hereon 2 S. L. C. 536, 537. {b) Knox V. Bushell, 3 C. B. (N. S.) 334. (c) Deare v. Soulten, L. K. 9 Eq. 151. [d) Jud. Act, 1873, s. 25 (II). 252 OF CONTRACTS WITH PERSONS her husband being dead, though not known to be by her. power to bind her husband for necessaries, contracts for such necessaries after his death, but before she could possibly have known thereof, no liability therefor attaches to her personally, and that in such a case the husband's estate would not be liable either (c). Liability of husband for wife's torts committed during marriage. The subject of torts committed by a married woman may be here incidentally noticed. With regard to these, it makes no difference whether the husband and wife are living together or are separated. He had by the old principles of common law a control over her person (though it seems this is now no longer so, or at any rate to a very limited extent (/) ), and therefore it was not unreasonable on this theory to make him liable jointly with his wife for her wrongdoings. One would have thought, however, that an alteration would have been made hereon by one of the Married Women's Property Acts, but such is not the case, and it has been held that the common law liability of the husband has not been taken away, and that a person affected by the tortious act of a married woman may sue either the husband and wife jointly, or the wife alone {g). III. Tersonfe of unsound mind. Persons of unsound mind may be either idiots or lunatics. By the designation idiot is meant a person who has never from his birth upwards had any glim- mering of reason ; whilst a lunatic " is one w'ho hath had understanding, but by disease, grief, or other acci- dent has lost the use of his reason " Qi). However, with regard to these two classes of non-sane persons, this distinction is of no practical importance, as no person is now found an idiot, the inquiry as to the (e) See ante, p. 147, and note (5) on that page, and cases of Smout v. libery, 10 M. & W. i ; Blades v. Free, 9 B. & C. 167 ; and Drew v. NtiTin, 4 Q. B. D. 661 ; 48 L. J. Q. B. 591, there referred to. (/) Hcff. V. Jack-son, (1891), i Q. B. (C. A.) 671 ; 60 L. J. Q. B. 346 ; 64 L. T. 679. ig) Scroka v. Kattenherg, 17 Q. B. D. 177; 55 L. J. Q. B. 375 ; 54 L. T. 649 ; 34 W. R. 542. (/t) I Bl. Com. 304. UNDER SOME DISABILITY. 253 commencement of the insanity not being carried back to the birth (i). It was formerly considered that a person could not To what extent T- ^ ,• j.i.i.Tj.1, unsoundness of set up as a defence to an action on a contract tiiat ne nii,ui is a was of unsound mind when it was entered into, but f^efewce. this is no longer law (k). But although unsoundness of mind may be set up, yet it must not be thought tliat it will form an answer to every action that may possibly be brought ; for, firstly, a person of unsound mind is liable for all necessaries suitable to his state and condition in life, provided no advantage has been taken of his mental incapacity (/) ; and, secondly, al- though the contract may not be for necessaries, and even though it may be executory, yet, if the other party to it had no knowledge of the person's want of mental capacity, unsoundness of mind will be no defence (vi). The burden of proving both the insanity, and the knowledge of it by the other contracting party, lies upon the party seeking to avoid the contract. Any acts done by a lunatic during a lucid interval Acts during u are perfectly valid {n). The mere existence of a de- ^11\.q existence lusion in the mind of a person making a disposition °^ ^^^ or contract is not sufficient to avoid it, even though the delusion is connected with the subject-matter of such disposition or contract ; it is a question for the jury whether the delusion affected the particular transaction (0). And although a person may not be (t) See hereon Phillips on Lunacy, 224. (i-) Chitty on Contracts, 191. (I) Aelson V. Dunconibe, 9 Beav. 211 ; Baxter v. Earl of Portsmouth, 5 B. & C. 170. In the recent case of In re Weaver, 21 Ch. D. 615 ; 48 L. T. 93 ; 31 W. R. 224, doubt was expressed whether, if a person supplies necessaries to a lunatic, knowing of the lunacy at the time, a contract on the part of the lunatic to pay for them can be implied ; but the judges carefully abstained from deciding the point, and I think what principle and authority there are on the subject appear tu incline towards the .statement made above. (m) Imperial Loan Co. v. Stone, (1892), i Q. B. 599 ; 61 L. J. Q. B. 449 ; 66 L. T. 556. (n) Chitty on Contracts, 193. (0) Jenkins v. Morris, 14 Ch. D. 674 ; 42 L. T. 817. usion. 254 OF CONTRACTS WITH PERSONS strictly of unsound mind, yet if he is of weak capacity, though this by itself would be, generally, no ground of defence to an action on his contract, yet it may afford evidence of undue influence, misplaced confi- dence, or imposition, so as to render the act a construc- tive fraud {p). IV. Intoxi- cated persons. If a person is in such a state of intoxication as not to know what he is doing, so that, indeed, his reason is for the time being destroyed, he cannot be said to have any agreeing mind, and his contract, made whilst he is in such a state, cannot be enforced, unless he afterwards when sober ratifies it, which he may do, for it is only voidable and not absolutely void. But intoxication can never be any defence to an action for things actually supplied fur the person's preserva- tion (2). V. Persons under duress. A person is said to be under duress when he is subjected to great terror or violence, e.g. if his person is wrongfully detained, or even legally detained, and excessive and unnecessary violence is used, or if he is threatened with loss of life or serious injury. Any contract made by a person who is under duress is, as regards him, voidable, and cannot be enforced against him unless he subsequently ratifies it (r). VI. Aliens. An alien may be defined as a subject of a foreign state, and may be an alien ami, that is, a subject of a friendly state, or an alie^i enemy, that is, a subject of a state at enmity with ours. The Common Law. By the Common Law, though an alien ami might contract and sue, yet the contract of an alien enemy was absolutely void ; and even with regard to the {p) As to Constructive Frauds, see Inderniaur's Manual of Equity, 195-216 [q) See hereon Chitty on Contracts, 193, 194. (r) Ibid., 219-221. UNDER SOME DISABILITY. 255 contract of an alien ami, if after the contract war broke out, so that he thus became an alien enemy, liis remedy here was suspended until the war ceased, and he asain became an alien ami (s). The Naturalization Naturalization Act, I 870 (t), however, now also provides that real and ° ' ^ ^°' personal property of every description (u) may be taken, acquired, held, and disposed of by an alien, in the same manner in all respects as by a natural-born British subject ; and that a title to real and personal property of every description may be derived through, from, or in succession to an alien, in the same manner in all respects as if a British subject (x), provided that this shall not qualify an alien for any office, or for any municipal, parliamentary, or other franchise (?/), nor shall it qualify him to be the owner of a British ship, or any share therein (z). It may be considered Distinction be- that, by reason of this comprehensive provision, the a^^iTand 'aUen distinction as to their contracts between an alien ami ^^^"^y- and an alien enemy is now done away with, and that an alien enemy may contract and sue in the same way as an alien ami ; but as the before-mentioned distinc- tion was founded on principles of public policy and expediency, this may well be considered as somewhat doubtful (a). (s) See Chitty on Contracts, 210. \t) 33 Vict. c. 14. {u) Formerly, as regards land, an alien could only hold a lease not exceeding twenty-one years (7 & 8 Vict, c. 66, s. 5). (a:) 33 Vict. c. 14, s. 2. (2/) Ibid. (z) Sect. 14 ; and see 57 & 58 Vict. c. 60, s. i. (a) The learned editors of the work "Chitty on Contracts," however, clearly give it as their opinion that the Naturalization Act, 1870, has done away with all such distinction. They state as follows : "As the statute appears to give this power " (the power of holding and disposing of all property) "to all aliens, whether they be the subjects of a friendly state or not, and whether they reside in this country or not, and the power so given cannot be enjoyed without entering into contracts for the taking, acquiring, and disposing of real and personal property, it seems to follow that all aliens are now enabled to enter into such con- tracts, and may now enforce by action in our courts any obligation arising therefrom." See Chitty on Contracts, 210, 211. 256 OF THE LIABILITY OX CONTRACTS. CHAPTER VIII. OF THE LIABILITY ON CONTRACTS, THEIR PERFORMANCE, AND EXCUSES FOR THEIR NON-PERFORMANCE. In this chapter it is proposed to consider the position of a person who has entered into a contract, and other points incidental thereto. "When any person enters into a valid contract, it follows, as a matter of course, tliat he therehy incurs a liability to perform such contract, and must either per- form it, or shew some good excuse for not doing so. "\viien !i This liability on a contract arises directly it is entered a contiicT into, and if it is for the doing of some immediate act, arises. ^j^g remedy of the other party to the contract may be taken immediately on breach thereof. But if the con- tract is for the doing of an act at some future day, then generally tlie remedy of the other party in respect of such liability cannot be taken until the future day ; e.g. if A. for consideration agrees to employ B. at some future day, the remedy cannot, of course, be taken until that When on an future day. To this rule there is, however, one im- contract a portaut exceptiou, which may be stated to be, that liability arises where there is an executory contract, and the person before the day , , . - , ~ arrives for liable to do the act, before the happening of the future day, expressly states that he will not do it when the future day arrives, or renders himself before the day incapable of doing it, the remedy may be taken against him at once, though the time for performance has not actually arrived, for in the meantime he has a right to have the contract kept open as a valid and subsisting doius the act. OF THE LIABILITY ON CONTRACTS. 257 contract. Thus in Hochstcr v. Dc la Tour (a) there nochsur v. was an agreement to employ the plaiutifF as a courier ^ " ''"'■ from a day sulscquent to the date of the writ, and, before the time for the commencement of the employ- ment, the defendant refused to perform the agreement, and discharged the plaintiff from performing it, and he at once commenced his action for breach of this con- tract. It was objected that he could not sue until the future day arrived, but it was held that he might do so, and the principle before stated was laid down. It should be noticed in cases of this kind that the repudia- Exact effect of tion of the contract, or the total refusal to perform it ^epudiatiou. before the day of performance arrives, is not of itself a breach of the contract, but may be acted on by the other party, and adopted by him as a rescission of the contract if he so chooses. In otlier words, where one party refuses by anticipation to perform the contract, he declares that so far as he can lie rescinds the con- tract, and by doing so wrongfully, he entitles the other party either to agree to the rescission and treat the contract as at an end, or to elect not to adopt the repudiation, and to continue to treat the contract as binding and wait until the time of performance arrives ; and when the promisee thus does not accept the rescission, the contract remains in existence for the benefit, and at the risk, of both parties, and if anything occurs to discharge it from other causes, the promisor may take advantage of such discharge (li). But a party entitled to take advantage of a rescission can- not both act on the contract as existing for some pur- poses, and at the same time bring an action upon it on other points (c). Probably, also, the principle of rescission or renunciation giving an immediate right of (a) 2 El. & Bl. 678 ; Frost v. Knight, L. R. 7 Ex. ill ; 41 L. J. Ex, 78. See also British Waygon Co. v. Lea, 5 Q. B. D. 149 ; 49 L. J. Q. B. 321 ; 42 L. T. 437 ; 28 W. R. 349 ; Society Generale dt Paris v. MUders, 49 L- T. 55- (6) Avery \. Bowdin, 5 El. & Bl. 714; Johnstone v. Mdlin'/, 16 Q. B. D. 460 ; 55 L. J. Q. B. 162 ; 54 L. T. 629 ; 34 W. R. 238. (c) Ibid. li 258 OF THE LIABILITY ON CONTRACTS, action has no application at all to the case of a lease or other contract containing various stipulations, where the whole contract cannot be treated as put an end to upon the wrongful repudiation of one of the stipula- tions of the contract by the promisor (d). Faiiuve in A question may sometimes arise whether, in the payments by casc of an agreement to deliver goods by instalments, instalments. ^ failure to deliver one instalment operates as an entire discharge of the other party to the contract (e), and again, if, where goods are to be paid for by instal- ments, non-payment of one instalment entitles the vendor to treat the whole contract as at an end (/). The Sale of Goods Act, 1893, now enacts as follows: — " Where there is a contract for the sale of goods to be delivered by stated instalments, which are to be separately paid for, and the seller makes defective deliveries in respect of one or more instalments, or the buyer neglects or refuses to take delivery of or pay for one or more instalments, it is a question in each case, depending on the terms of the contract and the circumstances of the case, whether the breach of the contract is a repudiation of the whole contract, or whether it is a severable breach giving rise to a claim for compensation, but not a right to treat the whole contract as repudiated " ([/). To entitle a "Where a special contract is entered into by a person, onT^onti^rt to entitle him to his remedy against the other party to he must have |f [^ [^ ygj.y necessarv that he himself should strictly performed Ins ' '' *' ■ t ■ c ^ part of it. carry out on his part the stipulations of the contract, for it is always open to the parties to agree that the entire performance of a consideration in its nature (d) Johnstone v. Milling, i6 Q. B. D. 460; 55 L. J. Q. B. 162; 54 L. T. 629 ; 34 W. R. 238. (c) Hoare v. Rennic, 5 H. & N. 19 ; Honck v. Muller, 7 Q. B. D. 92 ; 45 L. T. 202 ; 50 L. J. Q. B. 529 : Simpson v. Crippin, L. R. 8 Q. B. 14. (/) Bloomer v. Bernstein, L. R. 9 C. P. 588. (g) 56 & 57 Vict. c. 71, s. 31. This section substantially embodies the previous decision in Mersey Steel and Iron Co. v. Naylor (9 App. Cas. 434 ; 51 L. J. Q. B. 576 ; 47 L. T. 369). OF THE LIABILITY ON CONTRACTS. 259 divisible, shall be a condition precedent to tlie riglit to a fulfilment by the other party of his promise (A). Thus, where the agreement was to pay a man a certain cutter v. sum provided he proceeded, continued, and did his '^°^^^^- duty as mate of a ship during the whole of a certain voyage, and he died before the voyage was completed, it was held that his representatives could not recover, for the contract had not been strictly carried out by the deceased, and therefore no right of action had accrued {i). But although, where there is a special contract, the remedy must be on that special contract, and therefore there can generally be no remedy when the person suing has not himself performed its stipu- lations, yet if the special contract has been abandoned or rescinded by the parties, then an action will lie for what has been done by the person suing on a quan- Suing on a turn meruit (Jc). And where there has been a special meruit. contract which has not been fully performed, but the other party has taken advantage of and benefited by the partial performance, in many cases a new contract will be implied to pay remuneration commensurate with the benefit derived from the partial performance. Thus, if A. agrees to build and complete a house for B., and then stops in the middle and refuses to con- tinue the work, and B. completes the house, using and benefiting by A.'s work, a contract to pay for this would be implied, though of cour.^e it would be subject to any counter-claim B. might have for damages for breach of the original contract (/). It may be stated, as a correct general rule, that where there is a special contract not under seal, and one of the parties refuses to perform his part of it, or renders himself absolutely unable to do so, it is open to the other party to at (h) Anson's Contracts, 289. (i) Cutter v. Poivell, 2 S. L. C. I ; 6 T. R. 320 ; see also Ilulle v. Heifjhtman, 2 East, 145 ; Sinclair v. Bowles, 9 B. & C. 92. (k) Tliat is to say, for as much as it is worth ; see Brown's Law Diet. 435- (0 See 2 S. L. C. 34, 35. 26o OF THE LIABILITY ON CONTEACTS. What refusal will justify a party to a contract in rescinding it. How tlie liability on a contract may be put an end to. once rescind such special contract, and immediately sue on a quantum meruit for whatever he has done under the contract previously {m). But to entitle a person so to rescind a special contract on the ground of the refusal of the other party to perform it, such refusal must be absolute and unqualified, and a mere conditional refusal will not be sufficient {n). The liability of a person upon a contract may be put an end to either — I . By its performance ; or, I. Performance of contracts. 2. By shewing some excuse for its non- performance. Firstly, as to the performance of contracts. Con- tracts may be and are of the most varied nature, and they must be carried out according to the stipulations in each particular case, attention being paid always to the ordinary and well-known rules of construction, e.g. that the intention of the parties shall be observed, that the construction shall be liberal, and, failing all other rules of construction, that the contract shall be taken most strongly against the grantor or con- tractor (o). The most practically useful points to con- sider under this head appear to be Payment, Tender, and Accord and Satisfaction. I. Payment. Payment has been defined as the normal mode of discharging an obligation {y), and payment by a per- son liable on a contract to the other party to it, of the amount which is actually agreed on between them to be payable in respect of the contract, naturally puts an end to it and furnishes a complete performance. (m) Planche v. C'olburn, S Bing. 14 ; Withers v. Reynolds, 2 B. & Ad. 882. (n) See Lines v. Rees, cited 2 S. L. C. 36. (0) For rules of construction, see ante, pp. 23-30. [p) Brown's Law Diet. 395. OF THE LIABILITY OX CONTRACTS. 26 1 But a payment made under a contract, to amount to performance, must be actually made by the party, or some one on his behalf, and if made by some third Pdyment by , ., ., , . p J a third person person voluntarily, it amounts to no performance, and voluntarily, does not destroy the contracting party's liability, unless ance\n^iels""" afterwards ratified and accepted by him as his act (q). afterwiirds . . , ratified and But this, of course, is only where payment is made accepted, voluntarily ; if made — as by a surety — in pursuance of a legal obligation, then the contract is performed so far as the original liability is concerned, and a new perform- ance is necessary, viz. the repayment to the surety (?'). It is, of course, also necessary, to make the payment To wiiom a performance of the contract, that it should be actually be^iIJl^de. made to the creditor, or one having authority from him, either as a particular or a general agent, to receive it. Payment in an action to the plaintiff's solicitor is equivalent to payment to the plaintiff; but it seems payment to the agent of the plaintiff's solicitor does not necessarily so operate (s). Where there are several sums of money due fromKuleasto one person to another at different times, and the party oFpay^ments.^ liable to pay makes a payment, but not sufficient to discharge his liability in respect of the whole of the debt, the question arises. In respect of which matter is it to operate as a performance or part performance ? The answer to this question is known as the rule as Clayton's Case. to the appropriation of payments, and is, that the party liable to performance, i.e. the debtor, has the right in the first instance to declare in respect of which contract or debt the payment is made ; failing his doing so, the person entitled to performance, i.e., the creditor, has such right ; and failing either doing so, then the law considers the payment to be in respect of the contract or debt which is the (q) See Simpson v. Eggington, lo Ex. 845. (r) As to sureties, see ante, pp. 47-51. (3) Yates V. FrecMeton, 2 Doug. 625. 262 OF THE LIABILITY OX CONTRACTS. earliest in point of date commencing with the liqui- dation of any interest that may be due {t). And where, under this rule, the creditor has the right of appropriating the money, he may appropriate it to a debt barred by the Statute of Limitations (lo). Where a payment is made to a person to whom two or more debts are due, of a sum not sufficient to satisfy all, and the debts are owing in respect of contracts of the same date, the amount paid, unless expressly appro- priated by one of the parties, will be apportioned between the different debts (x). A smaller Where the performance that is required by a con- sum cannot be ... ,1 . e n 1 p -^ • a satisfaction tract IS the payment of a nxed sum oi money, it is no of a greater, sufficient performance for the debtor to pay a smaller sum, even though the parties expressly so agree, and the party to whom the payment is made gives a receipt expressly stating that it is received in full dis- charge (y), the reason being that there is no considera- tion for the smaller sum being received in satisfaction of the greater ; and as an ordinary simple contract re- quires a consideration to support it (z), so here there But some- niust be some consideration for the giving up of the though of Te^s' balance. But if something is given in performance value, may be ^f q^^ oblijiation of a different nature, there may be a a satisfaction. ° _ "^ complete satisfaction, though of less value ; thus, a horse may be given in satisfaction of a debt, though of much less value than such debt ; and it has been expressly decided that a negotiable security, such as a bill, note, or cheque, may operate, if so given and (t) Clayton's Case, in Devaynes v. Noble, I Mer, 585 ; Tudor's Mer- cantile Cases, I, and notes thereto ; In re Macnamara's Estate, 13 L. R. Ir. 158. This ordinar}' rule does not apply as between trustee and cestui que trust, see Re Hallett's Estate, 13 Ch. D. 696; 49 L. J. Ch. 415 ; 28 W. R. 732 ; Indermaur's Manual of Equity, 140. (m) Mills V. Fojvkes, 5 Bing. (N. C.) 455. (x) Favenc v. Bennett, 11 East, 36. (y) PineVs Case, 5 Rep. 117a; Cumber v. Wane, i S. L. C. 366; i Strange, 436 ; Fitch v. Sutton, 5 East, 230 ; Sibree v. Tripp, 15 M. & W, 23. A smaller sum paid by a third party at the debtor's request may satisfy a greater {Lawder v. Peyton, II Irish Reps. C. L. 41). (r) See ante, p. 39. OF THE LIABILITY ON CONTRACTS. 263 taken, in satisfaction of a debt of greater amount, the circumstance of negotiability making it in fact a diffe- rent thing, and theoretically more advantageous tiian the original debt, which was not negotiable («) ; a decision which we can best reconcile with the general principle and common sense by saying that the general principle is to be taken very literally, and not to be extended. Where there is any doubt or disagreement about the amount of a debt, and in all cases of unliquidated demands, the rule that a smaller sum cannot satisfy a greater does not apply, nor does it if the time for payment is accelerated, or any other advantage given to the payee, for in such cases there is a considera- tion — in the one case the settlement of doubts, and in the other the obtaining the money before it would smaller sum be otherwise paid (&). And where a less sum was **'^" ^'^''^''^''^^ tendered after the time for payment, and retained in discharge of a larger sum which was to become due in default of payment of the lesser sum, it was held that the receiver could not retain the sum paid other- Remittance in wise than as a complete discharge (c). If a debtor ^jf^^^puVed^^ who disputes the amount claimed from him remits a claim, smaller sum to his creditor in entire satisfaction of his demand, and the creditor retains it, giving a receipt simply on account, he may still sue for the balance (d). Following out the principle of the case of Camber Foakes v. Bter. V. Wane, it has been held that an agreement between a judgment debtor and his judgment creditor, that in consideration of the debtor paying down part of the judgment debt and costs, and on condition of his paying to the creditor the residue by instalments, the creditor would not take any proceedings on the judgment, was (a) Sibree v. Tripp, 15 M. & W. 23 ; Goddard v. O'Brien, 9 Q R. D. 37 ; I S. L. C. 373. (6) See notes to Cumber v. Wane, I S. L. C. 368 et seq. (c) Johnson v. Colquhoun, 32 W. R. 124. (d) Arkroi/d v. Smithies, 54 T^- T. 130; 50 J. P. 358 ; Z)ay v. M'Lea, 22 Q. B. D. 6:0 ; 58 L. J. Q. B. 293 ; 60 L. T. 947. 264 OF THE LIABILITY OX CONTKACTS. oiudum j^actiim, being without consideration, and did not prevent the creditor, after payment of the whole debt and costs, from proceeding to enforce payment of the interest upon the judgment (e). A smaller sum A Smaller sum ma}', however, be paid in satisfaction may satisfy a •/• 1 • • ^ greater if a of a greater if the receipt is under seal, for this would seansy'veu^ ^^ ^ ^^^^ whicli, as we have seen, requires no conside- or ouacom- ration to support it, and operates also bv way of estop- posiiioii uuder i//.\ ' •> J r the Bank- pel (/). And under the Bankruptcy Act, 1890 {g), isgo!"^ ^ ' ^ statutory majority of creditors may, as therein pro- vided, and subject to the Court's confirmation, agree to accept a composition in satisfaction of their debts, which will be binding on the other creditors, and the payment of which composition will discharge the Private debtor. Irrespective of this, a private composition arrangements . , ,. , . . ^ with cieditors. witli creditors, whereiii each creditor agrees to take a smaller sum than what is due to him, has always been held to be good ; but this is no real exception to the general rule that a smaller sum cannot satisfy a greater, for there is a consideration, viz. the for- bearance by other creditors (A). It may here be men- tioned that all private arranL;ements with creditors require now to be registered within seven days of their first execution, and are generally governed by the Deeds of Arrangement Act, 1887 {i). Performance Performance of a contract will in some cases be of a contract i -i i • ^ maysumetimes presumed Until the contrary is sliewn, e.g. from lapse e presumed, ^j time; and where there is money coming due from time to time, e.g. rent, the production of a receipt for (f) FoaJces v. Beer, 9 App. Cas. 605 ; 54 L. J. Q. B. 130 ; 51 L. T. 833. And see also Underwood v. Underwood, (1894), P. 204 ; 63 L. J. P. 109 ; 70 L. T. 390. {j) Ante, pp. 16, 18. {,9) 53 & 54 Vict. c. 71, s. 3. {h) Good V. Cheeswan, 2 B. & Ad. 335 ; Fitch v. Sutton, 5 East, 230. (i) 50 & 51 Vict. c. 57 ; and see also 51 & 52 Vict. c. 51, ss. 7, 8, requiring deeds of arrangement affecting land to be registered at the Land Registry Office. OF THE LIABILITY ON CONTRACTS. 265 a payment will be presumptive evidence that all rent that has become due before that date has been paid. But a receipt, even for any particular sura, is not conclusive evidence of payment of that sum, but, like other presumptions generally, the fact of the receipt may be controverted (k). Payment should strictly be made in money orEflfectof bank-notes, but if a cheque is given and received, that cheque" ^ operates as payment unless and until dishonoured ; and if a cheque is given in payment, the payee is guilty of laches if he does not present it for payment within the proper time, so that if in the meantime the banker fails, having sufficient assets of the custo- mer in his hands, the person to whom the cheque was paid has no further claim for payment against his debtor, and can only prove against the banker's estate (/). So, also, a bill of exchange or other negoti- Or by a 11 -i i. i- J J • •<- negotiable able security may operate as payment, and during its security. currency the remedy for recovering the debt is sus- pended (m) ; but upon the dishonour of the instrument the original remedy revives, unless it be then out- standing in the hands of a third person for value, in which case it does not (n). On the dishonour of a bill, note, or cheque given in payment, the creditor may sue eitiier for the original debt or on the instru- ment itself. If a creditor requests his debtor to make payment by Payment by tiansmission through the post, or if that is the usual throu'^h tile' course between the parties, the debtor is safe in adopting 1^°***- that course, provided he properly addresses and posts the letter ; but unless tliere is such a request made. (k) Stretton v. Rastcll, 2 T. R. 366. {I) See hereon, ante, p. 1 93. (m) Per cur. Belshaw v. Bush. II C. B. 191 ; Simon v. Lloyd, 2 Cr. M. & R. 187 ; Byles on Bills, 392 ; Lx parte Mattheiv, Re Matthews, 12 Q. B. D. 506 ; 32 W. R. S13 ; 51 L. T. 179. (n) Puckford v. Maxwell, 6 T. R. 52 ; Price v. Price, 16 M. & W. 232 ; Gunn v. Bolckoiv, L. R. xo Ch. App. 491 ; 44 L. J. Ch. 732. 266 OF THE LIABILITY OX CONTRACTS. either expressly or iropliedly, if the money is lost in transmission, the debtor will have to pay it over again (o). If a creditor residing at a distance from his debtor writes a letter by post simply requesting the debtor to send a cheque, this is an implied request or authority to send the cheque by post, and the debtor is safe in adopting that course, and not liable to be again called upon to pay, although the cheque never reaches the creditor, but is stolen in the course of transit through the post, and cashed by the thief (2>). 2. Tender. By tender is meant the act of offering a sum of money in satisfaction of some claim : if it is accepted, it of course is payment ; but if refused, it is simply a tender, and amounts to a performance as far as the debtor is able of himself to effect performance. The advisable course to be taken by a person on whom a claim is made of a pecuniary character, and reduced or reducible to a certainty, and who admits a liability but not to the full amount claimed, is to tender to the other person the amount which he admits, and it is therefore important to properly understand what will be a valid tender, and how a valid tender may bcj made. What will A tender may be made either by the debtor or vidid tender, some ouc ou his behalf, and either to the creditor personally, or some one who has been duly authorized by him to receive the money (q), e.g. if a solicitor writes for payment of a debt, tender may be made to him. The tender must be made of the actual debt that is due, and nothing less than it, but tender of an amount in excess of the debt is a perfectly good (o) See Chitty on Ci>ntracts, 747. (p) Norman V. Rlcketis, 31 Solicitors' Journal, 124; Law Students' Journal, 1S87, p. 6. (q) Chitty on Contracts, 783, 788. It may be noticed that tender by one of several joint debtors is good, operating as tender by all (see JJou'jlas V. Patrick, 3 T. R. 683). OF THE LIABILITY ON CONTRACTS. 267 tender provided change is not required, or, if required, provided that no objection is made to the tender on that ground (r) ; and the tender must be made before any action has been commenced for recovery of the sum claimed. To constitute a valid tender it is not sufficient for in making a the debtor to merely say he will pay the money, or ^oney should even that he has it with him ; there must be an actual p^oduS!^ production of the money itself, unless, indeed, the cre- ditor expressly dispenses with the production of it at the time (s). The tender must also be absolute and Tender must ^ ' . . , be uncon- unconditional ; for instance, in case a receipt is wanted, ditionai. the proper course is for the debtor to bring a stamped receipt with him and ask the creditor to sign it and pay him the amount of the stamp (t). So also a sum offered, if the creditor would accept it, in full discharge of a larger sum claimed, has been held not to be a valid tender (u). It seems a tender under protest is But a tender under protest good {X). is good. A tender must (except as is presently mentioned) in what money be made in money or bank-notes. It is provided that be made.™'^ a tender of Bank of England notes payable to bearer on demand is a valid tender for all sums above ;^5, except by the governor and company of the Bank of England, or any branch thereof (y). It is also pro- vided (z) that a tender of money in coins which have been issued by the Mint in accordance with the provisions of that Act shall be a legal tender, in the case of gold coins, for the payment of any amount ; in the case of silver coins, for the payment of any (r) Bean v. James, 4 B. & A. 546. (s) Thomas v. Evans, 10 East, loi ; Douglas v. Patrick, 3 T. R. 683. (t) Laing v. Meader, I C. & P. 257. (m) Evans v. Judkins, 4 Camp. 156. (x) Scott V. The Uxbridge 7?//. Co., 14 L. T. Rep. (N. S.) 596. [y) 3 & 4 Wm. 4, c. 98, s. 6. {z) Zl Vict. c. 10, s. 4. 268 OF THE LIABILITY ON CONTRACTS. amount not exceeding 40s. ; and in the case of bronze coins, for the payment of any amount not exceeding 15. Wlien countrj' notes or clieques are a good tender. Person tender- ing must reni.iin ready to pay the money at any time after- wards. Notwithstanding that a tender should usually be actually in money or Bank of England notes, yet a tender of country notes, or of a draft or cheque on a banker, is valid if a creditor at the time raises no objection to the tender being made in that way (a). Although a creditor rejects a tender that is made to him by his debtor, yet he has afterwards a right to demand payment of the amount previously tendered, whicli if refused will make tlie case as if no tender had been made (h) ; the reason of this being, that the very principle of tender is, that the person was then ready, and afterwards remains ready, to pay the amount ten- dered (c). Effect of a tender. The only effect of a tender as a defence is, that if it is the fact that the amount tendered was the whole amount due, although interest may be payable, no subsequent interest can be recovered, and the debtor will be entitled to his costs of any action that may subsequently be brought against him (d). On any action being brought, the proper course for the de- fendant to take is to set up the tender in his state- ment of defence, and pay the money into court ; and payment into court must, in fact, always ac- company a plea of tender. If a defendant sets up tender as a defence, he naturally thereby admits the contract, and a liability on it to the amount of the tender. 3. Accord and Accord and satisfaction is a defence in law, con- satisfaction. • ,• a , , . ., . . , sistmg of two parts, viz. somethmg given or done to (a) Chitty on Contracts, 793. (6) The demand must be personal, and not by letter (Edwards v, Tates, R. & M. 360). (c) Chitty on Contracts, 794, (d) See Dixon v. Clark, 5 C. B. 365. OF THE LIABILITY ON CONTRACTS. 269 the plaintiff by the defendant as a satisfaction, and agreed to as such Ly the plaintiff (c) ; it therefore amounts to a performance of a contract, thouyh not in the way originally agreed on, and furnishes an answer to any action on it (/). The value of the satisfaction cannot he inquired into, provided it is shewn that it is of some value {g) ; but if an accord and satisfaction has been brought about by means of any fraud, it will be set aside on application to the Court, in the same way that any contract induced by fraud may be set aside (A). Secondly, as to excuses for the non-performance of ii. Excuses for 11 ^ • ^ \ D J.^ the llOIl- co7itracts ; and these may be various, botli from the performance different natures of contracts themselves, and f rom °^ •'°"*'''"'^'- the circumstances that may arise in particular cases to justify a contracting party in not carrying out his contract. Of these excuses it is proposed in this chapter to consider the following, viz. : The Statutes of Limitation, Set-off, and Eelease. The subject of fraud or illegality in a contract, forming a valid excuse for its non-performance, is specially considered in the next chapter. The subject of bankruptcy and composition with creditors may well be considered as beyond the scope of this work ; and with regard to incompetency of a party to contract, this matter has already been sufficiently dealt with (t). The Statutes of Limitation are certain statutes i. statutes of which have been passed for the purpose of establish- in" fixed periods or limits after which actions cannot be brought, and claims, or the remedies whereby such (e) Brown's Law Diet. 11. See also the term "accord and satis- faction" explained, ;pcr Maule, J., in Gabriel v. Dresser, 15 C. B. 628. (/) See Blale's Case, 6 Keps. 43b. (g) Pinel's Case, 5 Reps. 117a; Curltwis v. Clarice, iS L. J. Ex. 144. (/i) Sle^oart v. Great Western Ry. Co., 2 De G. J. & S. 319. \i) See ante, chap. vii. p. 231 et seq. 270 OF THE LIABILITY ON CONTRACTS. claims niif^ht have been enforced, are extinguished and gone. There are several of these statutes, and different periods are fixed within which different actions must As to recnrd-i be brought (k). To take contracts by record and am bpecia Lies, gp^^jg^ij-y fjj.g^_ j^ jg provided that all such actions must be brought within twenty years after the cause of such action or suit accrued, and not after (/), but if (k) The following are some of the chief periods of limitation : — On a specialty contract ....... 20 vears. (but with regard to a mortgage of land, although mider seal, an action for the principal money secured by it must always be brought within twelve years {Sutton v. Sulton, 22 Ch. D. 5 1 1 ; 52 L. J. Ch. 333 ; 48 L. T. 95) ; and this is the same even though there is besides the mortgage a collateral bond by the mortgagor (Fcarnsidc v. Flint, 22 Ch. D. 579; 52 L. J. Ch. 479 ; 48 L. T. 154). If, however, there is a collateral bond by a third person, the period is then twenty years as to him {Re Powers, Lindsdl v. Phillips, 30 Ch. D. 291) ; and this is so even thonirh he is joined by the same instrument {He Frisby, Allinson v. Frishy, 61 L. T. 632 ; 38 W. R. 65). Only six years' arrears of interest can be recovered on a mort- gage, but a mortgagor will not be allowed to redeem without paying nil arrears of interest {Re Tiirner, Turner V. Spencer, 43 W. R. 153). As regards what arrears of rent can be recovered hy a landlord against his tenant, the rule is six years, but if there is a covenant under seal to pay, then twenty years. See ante, p. 85, note (<). For recovery of share of personalty under an intestacy {23 & 24 Vict. c. 38, s. 13, and see hereon, Re Johnson, Sly V. Blale, 29 Ch. D. 694 ; 52 L. T. 682 ; 33 W. R. 502) 20 years. For recovery of land and arrears of rent or mesne profits, against a wrongful owner . . . . . .12 years. For recovery of an annuity charged upon land (see hereon Hughes v. Coles, 27 Ch. D. 231 ; 53 L. J. Ch. 1047 ; 51 L. T. 226 ; 32 W. R. 27) .... 12 years. For recovery of a legacy . . . . . . .12 years. On a simple contract ....... 6 years. For libel .......... 6 years. For assault ......... 4 years. For false imprisonment ....... 4 years. For slander ......... 2 years. For penalty bj' common informer ..... 2 years. To recover an advowson three successive adverse incum- bencies, or sixty years, whichever is the longer, but in no case after . . . . . . . . . loc years. It has been held that the Statutes of Limitation apply so as to bar claims against the separate estate of a married woman {In re Hastings Estate, Hallett v. Hastings, 35 Ch. D. 94; 56 L. J. Ch. 631 ; 57 L. 126; 35W. R. 584). {I) 3 & 4 Wm. 4, c. 42, s. 3. It has recently been held that judgments come within the Real Property Limitation Act, 1874 {t,^ & TiS Vict. c. 57, s. 8), and in the absence of part payment or acknow- ledgment in writing, are barred by the lapse of twelve years {Jay v. Johnstone, (1S93), TQ. B. 189; 62 L. J. Q. B. 12S; 68 L. T. 129). coniracts. OF THE LIABILITY ON CONTEACTS. 2/1 any person shall be an infant, /c??ie covert, or non compos mentis at the time of the cause of action accruing, then such person is at liberty to commence the same within the like time after coming of full age, being discovert, or of sound memory {m) ; and if any person or persons against whom there shall be any such cause of action is or are, at the time of such cause of action accruing, beyond the seas, then the person or persons entitled to any such cause of action may bring the same against such person or persons within the like time after the return of such person or persons from beyond the seas (ti). It is also provided that if there shall have been any acknowledgment of the debt in writing signed by the party liable or his agent, or any part payment or part satisfaction, then there shall be a like period of twenty years from such acknowledg- ment, part payment, or part satisfaction (o). To next take simple contracts, it is provided that As to sinii.ie all such actions must be brought within six years of the cause of action arising, and not after (p). But if the person to whom any cause of action accrues is at tlie time an infant, /e7ne covert, or non compos mentis, then such person may commence the same within the like period after coming of full age, being discovert, or of sane memory {q) ; and if any person or persons against whom there shall be any cause of action is or are at the time of its accrual beyond seas, then the person or persons entitled to any such cause of action may bring the same within the like period after his or their return from beyond seas (r). No part of {m) There was also by this statute a further period allowed in the case of the absence of the creditor beyond seas, but this is not so now (19 & 20 Vict. c. 97, s. 10). {11) 3 Act, 1874. debtors {e.g. joint mortgagors of land), a part payment, or payment of interest, by one, will keep the debt alive against all, the reason being that there is not in the Eeal Property Limitation Act, 1874, any corre- sponding provision to that in the Mercantile Law Amendment Act, 1856, and therefore the common law principle with regai'd to the matter still prevails (s). Issuing of process to prevent Statutes of Limitation applying. A creditor cannot, by merely issuing a writ of summons to recover his debt, keep it alive for an indefinite space of time. The writ will primarily only remain in force for twelve months, but if not served it may by leave be renewed for six months, and so on from time to time, on its being shewn that reasonable efforts have been made to serve it, or for other good reason ; and so long as the writ, having originally been issued before the debt was statute- barred, is thus kept on foot, the debt will be kept alive {(). 2. Set-off. Set-off is a demand which the defendant in an action sets up against the plaintiff's demand, so as to counterbalance that of the plaintiff either altogether or in part. As, if the plaintiff sues for .^^50 due on a note of hand, the defendant may set off a sum due to himself from the plaintiff for merchandise sold to the plaintiff; and if he pleads such set-off in reduction of the plaintiff's claim, such plea is termed a plea of set-off. A set-off may therefore be defined as a claim (?•) However, if one partner makes a part payment or pays interest in respect of a debt of the firm, this would be presumed to be within the scope of his authority, and would revive the debt or keep it alive, not merely as against him, but against the whole firm {Goodwin v. Farton, 42 L. T. 568). (s) Re Frisby, Allinson v. Frishy, 61 L. T. 632 ; 38 W. K. 65. [t] Order VIII. rr. I, 2. OF THE LIABILITY ON CONTRACTS. 2/7 which a defendant has upon a plaintiff, and which he sets np or places against the plaintiff's demand {u). Before any statute upon the suhject a defendant Former rules was not allowed to set off any claim he had against the plaintiff unless it was strictly connected with the plaintiff's demand, so that, for instance, if the defendant had simply some independent counter-debt against the plaintiff, he must have brought a cross action to re- cover it, but in an action for money received by him he might have set off any deduction he was entitled to make out of such sums by way of commission or otherwise {x). In equity the rule was somewhat dif- ferent, being much more extensive, for there, whenever there was some mutual credit between the parties, set- off was allowed. However, by the Statutes of Set- off {y) all mutual debts were allowed to be set off, and this even although such debts were of a different nature. But under the Statutes of Set-off only debts were allowed to be set off, and so the law remained until the coming into operation of the Judicature Acts, Rule now. 1873 and 1875, when it received a great extension, the provision on the subject now being that a defen- dant in an action may set off or set up by way of counter-claim against the claims of the plaintiff any right or claim, v:)lui}ur such set-off or counter-claim sound in damages or not, and such set-off or counter- claim shall have the same effect as a statement of claim in a cross action, so as to enable the court to pronounce a final judgment in the same action both on the original and on the cross claim. But the court or a judge may, on the application of the plaintiff before trial, if in the opinion of the court or judge such set-off or counter-claim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail (m) Brown's Law Diet. 486. (x) Chitty on Contracts, 821. {y) 2 Geo. 2, c. 22 ; 8 Geo. 2, c. 24. 278 OF THE LIABILITY ON CONTRACTS. himself thereof (z). The student will observe that the great alteration and extension of the principle of set-off that is made by this last provision is, that any- thing, even a mere claim for damages, may be set off, whereas formerly it must have been liquidated, or of such a nature as might be rendered liquidated, without an actual verdict to liquidate it (a). Kelease. A release given to oue of several joint con- tractors dis- cli.ai'ges all. By release, as applied to contracts, is meant some act which operates as an extinguishment of a person's liability on a contract, and it may occur either where the contractee expressly exonerates or discharges the contractor from his liability, or impliedly, where the same effect takes place by the act of the law. An ex- press release may be by an instrument under seal, in which case no consideration is necessary to its validity and effect ; or provided there be a valuable considera- tion for the release, it need not be under seal, if it is made before breach, and a' so provided the original contract was not under seal ; if the original contract was under seal, then it can only be discharged by a release under seal. After breach, a release must be under seal, unless, being founded on a valuable con- sideration, it can operate, as it may possibly do, as an accord and satisfaction {h). A contract of record may be discharged by a release under seal (c). A release can only generally operate to discharge the liability of the person to whom the release is given, but in the case of several joint contractors a release given to one will operate to discharge all, and this even though the contract be several as well as joint, the reason of which is apparent, for if it did not so (-) 36 & 37 Vict. c. 66, s. 24 (3) ; Order xix. r. 3. (a) See hi re Milan Tramways Co., Ex parte Theys, 22 Ch. D. 122 ; 48 L. T. 213 ; 52 L. J. Ch. 29 ; 31 W. R. 107. In practice, since the commencement of the new Acts counter-claims of almost every kind have been allowed. (6) As to which see ante, pp. 268, 269. (c) Chitty on Contracts, 769. OF THE LIABILITY ON CONTRACTS. 279 operate, the effect would be that any co-contractor from whom the amount was recovered would have a right over for contribution against the one released, so that the release would really be without effect (d). Although one of two joint creditors can give a re- Covenant not o to sue irivGii i}v lease, yet a covenant not to sue given by one of two one of two joint creditors does not so operate, and cannot be set J"'"* creditors, up as a defence to an action brought by both (e). An instance of release by operation or implication Effect of a of law occurred formerly in the case of a creditor polnting'his appointing his debtor executor of his will and dying, f J*°^^j._ for here, as he, as executor, is the person entitled to receive the debts, and the debt is due from himself, and he cannot sue himself, the debt was at law gone. But in equity he would have been a trustee for the benefit of the persons entitled under the will, or the next-of- kin, and it is now provided by the Judicature Act, 1 873 (/), that where there is any variance between the rules of law and equity, the rules of equity shall pre- vail. Another instance of release by operation of law, Or of a womAu which might until lately have occurred, was where ^j'Jj.'o'"'" a man married a woman to whom he was indebted ; but in equity any such debt might always have been kept alive by the agreement of the parties prior to marriage by way of settlement, and the same provi- sion in the Judicature Act applies here, and now in marriages on or since ist January 1883 the debt will remain to her separate use ((/). There remain still some few matters that may con- EquitiiWe de fences veniently be touched upon in concluding the present chapter. It has frequently happened that on an action at law being brought, the defender has had (d) Chitty on Contracts, 773. (e) Walmeslei/ v. Cooper, 11 A. & E. 221. (/) 36 & 37 Vict. c. 66, s. 25 (11). ( '-""^ persona. committed within six months of the owners death, and that the action is brought within one year after his death ; and this forms an exception to the maxim, Actio personalis moritur cum i^crsond (p). So also if injury is done to land, or, in fact, any property, real or personal, by a person who then dies, though the maxim primarily applies, yet there is a like exception, provided the injury was committed within six months before the death, and the action is brought within six months after the executors or administrators have taken upon themselves the administration of the estate of such deceased person (q). And, apart from this provision, it must be remembered that where a person by his wrongful act acquires the property of another — e.g. if he wrongfully cuts and takes timber — the right of (m) 36 & 37 Vict. c. 66, s. 25 (5). See also ante, p. 67. (n) Broom's Corns. 838. (o) Merest v. Harvey, 5 Taunt. 441. (p) 3 & 4 Wm. 4, c. 42, s. 2. See as to this maxim, ante, pp. 5, 6 ; and see other exceptions to the maxim, post, pp. 355, 418. (7) 3 & 4 Wm. 4, c. 42, s. 2. See hereon Kirk v. Todd, 21 Ch. D. 484 ; 52 L. J. Ch. 224 ; 47 L. T. 676 ; 31 W. R. 69 ; Jones v. Simes, 43 Ch, D. 607 ; 59 L. J, Ch, 351 ; 62 L. T. 447. 3^4 OF TORTS AFFECTING LAND. action does not die with the person, but may still be enforced (?■). 2. "What will amount to a trespass to land? Entry may be constructive. Cattle stray- ing. Dogs straying. Tilletl V. Ward. Obligation as to fencing out cattle. Secondly, What will amount to a trespass to land ? We have defined trespass to land as a wrongful and unwarrantable entry upon the soil or land of another person (s), and it therefore follows that entry is the essential to constitute a trespass. But this entry need not be actual, it may be constructive, as by a person throwing stones or rubbish on to his neighbour's land, or by letting a chimney or any other part of his house fall thereon, or by erecting a spout on his own lands or buildings, which discharges water on to his neigh- bour's {t). So also if a man's cattle stray from his own lands on to his neighbour's, the latter not being under any legal obligation to fence them out, this amounts to trespass ; but this rule as to cattle does not apply to dogs, for the owner of a dog is not liable for its straying and doing injury, unless it is of some peculiarly miscliievous disposition (?/). And if cattle are lawfully passing along a highway and stray on to adjoining land through its not being properly fenced off, this does not amount to a trespass, though it is otherwise if they are not merely passing along, but staying there {x). Upon this principle, it was held that where an ox belonging to the defendant was being driven through the streets of a country town, and entered the plaintiff's shop and damaged his goods, the defendant was not liable, there being no negligence on his part (y). A person is not gene- rally under any obligation to fence out his neighbour's cattle for his neighbour's protection, though the con- trary may be the law either from express contract (r) Phillips V. Homfray, 24 Cli. D. 439 ; 52 L. J. Ch. 833 ; 49 L. T. 5. (s) Ante, p. 320. (t) Addison on Torts, 360, 361. («) Ibid. 128. (x) See Dovadon v. Panne. 2 S. L. C. 154 ; 2 Hen. Elackstone, 527. [y] Tillett v. Ward, 10 Q. B. D. 17 ; 52 L. J. Q. B. 61 ; 47 L. T. 546 ; 31 \V. R. 197. OF TORTS AFFECTING LAND. 325 to that effect or by prescription. Eailway companies are, however, under the provisions of the Eailway Clauses Act, 1845 (z), bound to fence to keep out the cattle of adjoining proprietors (a). It has also been held that the owner of an open quarry is bound to fence it to protect his neighbour's cattle from fall- ing therein (h). The fact of a lawful owner of lands out of posses- a lawful sion peaceably entering thereon is justifiable, and does p^g^ggg""* "[^^y not constitute a trespass ; thus, if a tenant wrongfully peaceably holds over after the expiration of his tenancy, there is no doubt that the landlord may peaceably enter, and thus by his own act regain possession, but he must not But must not use force. So also may a mortgagee entitled to posses- ^^^ ^°^'^^' sion thus peaceably enter. If such a person, however, enters forcibly, though technically he cannot be liable for a trespass on his own land (c), yet he might be liable for an assault (d), and generally his act would be contrary to the provisions of 5 Eich. 2, s. i, c. 8, and illegal (e). The fact that the owner of lands gave leave and Licence to licence to a person to come on his lands will, of course, ^^ ^^' justify and excuse what would otherwise be a trespass, but will not justify the remaining after rescission of such licence or permission, for if it be a mere permis- sion or licence, and not a grant, it is always revocable (2) 8 & 9 Vict. c. 20, s. 68. (a) And it has been decided that this duty of railway companies extends to keeping out swine, although swine require a stronger kind of hedge than cattle [Child v. Hearn, L. R. 9 Ex. 176 ; 43 L. J. Ex, 100). (6) Ilawken v. Shearer, 56 L. J. Q. B. 284. There is also now a duly cast on the owner of a quarry witliin fifty yards of a highway to fence it in (50 & 51 Vict. c. 19). See further post, p. 428. (c) Newton v. ILirland, i Mr. & Gr. 644 ; Per Parke, B., Harvey v. Brydrjes, 14 M. & W. 442. ('(/) Beddall v. Maidand, 17 Ch. D. 174; 50 L. J. Oh. 401 ; 44 L. T. 248; 29 W. R. 484 ; Edridije v. Ilawkes or Edwich v. IlaioJces, 18 Ch. D. 199 ; 50 L. J. Ch. 577 ; 45 L. T. 168 ; 29 W. R. 91. (e) Ante, pp. 80 81. 326 OF TORTS AFFECTING LAND. even though under seal (/). A licence to break and A person is enter premises with force is absolutely void. A person Sivin"a is justified in removing a trespasser from his lands, trespasser provided he first require him to leave, and in removing from his lands, , . , , . i. r j »i_ • him he does not use a greater amount of force than is necessary under the circumstances. or in forcibly A pcrson is justified in forcibly defending the pos- possesdon. scssiou of liis land against any one who attempts to take it {(j). Some special rights over the lands of others. Easements. Persons sometimes have rights over the lands of others, entitling them to do acts which, if they had not such rights, would amount to trespasses ; and of such rights the chief are Easements and Rights of Common. An easement has been well defined as " The right which the owner of one tenement, which is called the dominant, has over another, which is called the servient, to compel the owner thereof to permit something to be done, or to refrain from doing some- thing, on such tenement for the advantage of the former " (Ji). Eights of watercourse and rights of way may be mentioned as easements {€). A right of common has been which one person has of taking duce of land, while the whole itself is vested in another " {k). common are the right of pasturi lands, called common of pasture turf on another's lands, called defined as " The right some part of the pro- property in the land Instances of rights of na cattle on another's , the right of cutting common of turbary ; {/) Wood V. Leadhitter, 13 M. & W. 838. (g) Per Fry, J., in Edridge v. Haickes, supra; Tvlly v. Rcid, l C. & P. 6. . ^ (h) See notes to Sury v. Pigot in Tudor's Conveyancing Cases, {i) This is a subject belonging to Conveyancing. As to it, see Sury V. Pigot {supra), and notes thereon. (k) See notes to Tyrringham s Case in Tudor's Conveyancing Cases, p. 120. OF TORTS AFFECTING LAND. 327 and the right of fishing in water on another's lands, called common of piscary (/). Where persons own land adjoining a river (???-), the Kipariau soil is vested in each up to the centre of the stream, i'^°i'"'' °^^- and if either deals with it beyond that point he is a trespasser. Each of such persons has a right to use the water for all proper purposes, provided he does not thereby interfere with his neighbour's enjoyment thereof, and to do so — e.g. by preventing the water from flowing to some proprietor below — is a tort for which an action will lie (n). But this does not apply where water flows under the surface in no defined channel, for in such a case a landowner is justified in sinking a well and preventing the water from percolat- ing through to, or in draining it from, his neighbour's lauds, and this even though his design may be to injure his neighbour (0). He may, in fact, appropriate the under-ground water in which at present, until appro- priation, there is no property ; but still he may not foul it, for whilst it percolates, every owner through whose land it passes, has a right to receive it in its natural condition (p). Where one person is possessed of the surface of land Position when and another of the subsoil, each has an independent p^gggggeJ^f property in respect of which trespass may be com- the surface and mitted. It is the duty of the owner of the subsoil to the subsoil of leave sufficient support to maintain the ground above, {I) This subject pertains to Conveyancing, and reference may be made to the notes in Tyrrimjham s Case in Tudor's Conveyancing Cases, p. 1 20. (m) Such persons are called riparian proprietors. \n) See notes to Sury v. Pigot, Tudor's Conveyancing Cases, p. 1 54. (o) Chasemore v. Richards, 7 H. of L. Cas. 349 ; Grand Junction Canal Co. v. Shugar, L. R. 6 Ch. 483 ; Bradford Corporation v. Pickles, (1895), I Ch. 145 ; 64 L. J. Ch. loi ; 71 L. T. 793 (since affirmed in House of Lords, 29 July 1 895). This, it will be remembered, is an instance of a damage without what is considered an injury in the eyes of the law — that is, damnum sine injuria. See ante, p. 4. (p) Ballard v. Tomlinson, 29 Ch. D. 1 15 ; 54 L. J. Ch. 454 ; 52 L. T. 942. 328 OF TORTS AFFECTING LAND. Colli erju Co. Mitchell. and the owner of the ground above must not interfere with the soil beneath. The owner of the subsoil is liable for every subsidence occurring tlirough his not Dariey Main leaving Sufficient support for the surface land. In a recent case the facts were that the lessees of coal under the plaintiff's land worked the coal so as to cause a sub- sidence of the land and injury to houses thereon in the year 1 868. For the injury thus caused they made com- pensation and ceased working the coal, but in the year 1882 a further subsidence occurred, causing fresh injury. The defendants contended that the plaintiff's right of action accrued only from tlie time of the last working of the coal, and that any claim was statute-barred, and that the case was therefore one of damnum absque injurid. The House of Lords, however, held that the cause of action in respect of the further subsidence did not arise until the subsidence occurred, and that the action could be maintained though more than six years had elapsed since tlie last working of the coal (q). Every owner of land has a right to the lateral support of his neigh- bour's land to sustain his own land unweighted by build- ings, but nothing more ; unless, indeed, a title is gained by prescription, M'hich will be the case after twenty years' enjoyment of the additional support (r) ; or where there is an express grant of the additional right, or such a grant can be implied, which would be the case when the adjoining land belongs to the same vendor, who sold for building purposes, for where there is a grant for building purposes there is an implied grant of the right of support for the land with the buildings to be erected, from adjoining land of the grantor (s). Right to Literal support. (5) Darlei/ Main Colliery Co. v. Mitchell, II App. Cas. 127 ; 55 L. J. Q. B. 529 ; 54 L. T. 882. Lord Blackburn dissented from this judg- ment. (r) Bolton v. Angus, 6 App. Cas. 740; 50 L. J. Q. B. 689 ; 44 L. T. 844 ; 30 W. R. 191 ; Bower v. Pcate, I Q. B. D. 321 ; 45 L. J. Q. B. 446; 35L. T. 321. (s) Ri'jby V. Bennett, 21 Ch. D. 559 ; 48 L. T. 47 ; 31 W. R. 222. OF TORTS AFFECTING LAND. 329 A nuisance (/) may be defined as some act -which 11. Nuisances. unlawfully and unwarrantably injures or prejudices the rights of another person ; thus, the carrying on an offensive or noisy trade (u), the excessive ringing of a peal of bells (x), the improper emission of smoke from a chimney (y), and suffering drains to get into an offen- sive state (z), and many other acts, have been held to be nuisances (a). But it must not be understood from the foregoing that because a person simply car- ries on a trade which is somewhat objectionable to his neighbour, the carrying on of that trade must necessarily constitute a nuisance ; to amount to a wiiat acts are nuisance the matter must go further than that, and c"„stitute a it must be shewn that there is some special injury nuisance, resulting therefrom. Thus, a person may possibly have a material objection to a butcher's shop being set up next door to him, and it may deteriorate from the value of his house, but the setting up of such a shop will not of itself be a nuisance ; but if, by reason of the way in which the person conducts his business, offensive smells penetrate to the next house, then undoubtedly it will be. It is not every mere discomfort a person may experience that will constitute a nuisance (h). Were it otherwise, the question of nuisance or no nuisance would frequently involve questions of fancy, of whether this person's delicacy made an act a nuis- ance which to another person in the same position would be no nuisance at all (c). Where a nuisance arises not directly from the act (t) From nuire, to annoy. The author has considered the subject of nuisances generally in this chapter, though many nuisances affect only the person, and do not therefore come under the heading of this chapter, " Of Torts affecting Land." (m) St. Helen's Smelting Co. v. Tipping, 11 H. L. Ca. 642 [x) Soltau V. Be Held, 2 Sim. (N. S.) 133. ly) Rich V. Basterfield, 4 C. B. 7S6. (z) Russell V. Shenton, 3 Q. B. 449. (a) For numerous instances of acts that will amount to nuisances t^ie student is referred to Addison on Torts, 365-374. [h) St. Helens Smelting Co. v. Tipping, u H. L. Ca. 650. (c) See also hereon Broom's Corns. 792. 330 OF TORTS AFFECTING LAND. Party liable for probable consequence of his acts. Landlord and tenant. of the defendant, but only incidentally from something he has done, he is nevertheless liable in respect of it, if it can be considered as the probable consequence of his act {d). If a man creates a nuisance on his pro- perty, and then conveys or demises it to another, they both are liable in respect of it. And if a nuisance arises on property in the possession of a tenant, from an omission on the part of the landlord to do repairs which he was bound to do, the landlord is liable ; and so also a landlord will be liable if he by licence authorizes the doing on his land of something whereby a nuisance is created (e). Primd facie, however, in the case of a nuisance on premises in the occupation of a tenant, the tenant and not the landlord is the person liable, and in all such cases the remedy will be against the tenant if the landlord is not a party to it in any way, and the tenant has covenanted to repair (/). It is no defence to an action for a nuisance that the act is a benefit toother persons or to the community at large. Although a person comes to a nuisance he still has a right to have it abated. Where an act is done which really does amount to a nuisance to some person or persons, it is no defence to say that the act is a benefit to other persons or to the community at large, or that the place where it is carried on is very convenient for the public. Thus, there are many trades of an offensive character that necessarily must be carried on, and as to which it would be a detriment to the public were they not fol- lowed, but that fact does not justify a person in esta- blishing such a trade where it prejudices another (r/) ; he must seek out another place where he can carry it out without doing injury to any one. And if a person comes to a place where a nuisance is existing, he has an equal right to his legal remedies in respect of that nuisance as if he had been there first, and the (d) Chihnall v. Paid, 29 W. R. 536, (e) Todd V. Flight, 30 L. J. C. P. 21 ; White v. Jameson, 18 Eq. 303. (/) Pretty v. Bichmore, L. R. 8 C. R 401 ; 21 W. R. 733 ; Nelson v. Liverpool Brewery Co., 2 C. P. D. 311 ; 46 L. J. C. P. 675 ; 25 W. R. 877. {(j) Bamford v. Turnley, 31 L. J. (Q. B.) 286; Stockport WaterwovJci Co. V. Potter, 31 L. J. (Ex.) 9. OF TORTS AFFECTING LAND. 331 nuisance had been afterwards established (h). Where an Act of Parliament authorizes the doing of certain things, but does not by direct and imperative provisions order them to be done, if in doing them a nuisance or other injury is created, the Act does not afford any statutory protection (i). And even if the thing is imperatively required to be done, the onus rests on the person who has to do it of shewing that it was impossible to do it without creating a nuisance (A). Nuisances are divided into two classes, viz.: — 1. Public nuisances, which are acts that affect the Nuisances mny II. IT- c Ti- vT^e either public at large, e.g. the digging of a ditch m a public public or road, or the causing of a great smoke ; and private. 2. Private nuisances, which are acts that affect only some particular individual or individuals, and not the public at large, e.g. an offensive smell which only penetrates to the next house, or a noise only affecting a neighbour. There are very material differences in the remedies Differences - , -. , . . . between them in the case of a public and a private nuisance. A in the remedy public nuisance being a public wrong, affecting the t^eT^^'"'' "^ community at large, a public remedy is applied to it, the proper course being to proceed either by indict- ment or information. An indictment is a written indictment, accusation laid against one or more persons of a felony or misdemeanour, preferred to and presented upon oath by the grand jury (/), and there are many cases of (h) Per Byles, J., Hole v, Barrow, 27 L. J. (C. P.) 208 ; Sturges v. Bridgman, il Ch. D. 852 ; 48 L. J. Ch. 875 ; 28 W. R. 200. (i) Metropolitan Asylum District v. Ilill, 6 App. Cas. 193 ; 50 L. J. Q. B. 353 ; 44 L. T. 653 ; 29 \V. R. 617 ; Gas Light and Coke Co. V. Vestry of St. Mary Abbotts, 15 Q. B. D. I ; 54 L. J. Q. B. 414 ; 53 L. T. 457 ; 33 W. R. 892 ; Rapier v. London T'ramways Co. (1893), 2 Ch. 588 ; 67 L. J. Ch. 36 ; 69 L. T. 361. {k) Attorney -General v. Gas Light and Coke Co., 7 Ch. D. 217 ; 47 L. J. Ch. 534. (I) Brown's Law Diet. 272. JJ- OF TORTS AFFECTIXG LAXD. Information, public nuisances in which an indictment is the strictly- proper course, e.g. the keeping of gunpowder in large quantities in close proximity to populous neighbour- hoods, the blocking up of, or other injury to, a public road, the keeping of a disorderly house, indecent bathing, or the carrying of persons suffering from infectious disorders through the public streets in such a way as to endanger the health of the public (m). An information is a process preferred in the name of the Attorney-General or Solicitor-General for the purpose of restraining, on behalf of the public, the commission or continuance of some public injury, and is a remedy frequently resorted to in cases of ordinary public nuisances. However, although indictment and information are the proper remedies for a public nuis- ance, an action may be brought in respect of it by a private individual if he can show that the nuisance affects him more than the community at large (?i). Tiie remedy As to a private uuisancc, however, it is no offence !i"private* °^ against the public, but only against a private individual, nuisance is j^^j therefore there is no public remedy, but merely a au action. ■"■ —ii • • i • private one, in respect of it. This private remedy is exercised by bringing an action, in which the plaintiff simply seeks damages for the injury that has been done to him by the commission of the nuisance, or an injunction to restrain the commission or continuance of the nuisance, or both ; that is to say, damages for the injury already done him, and an injunction to pre- But a person vent the coutinuauce of such injury. If, however, bTbislacber there has been leave and licence expressly given, or impliedly given by a person standing by for some time and acquiescing tacitly in the doing of some act which constitutes a nuisance — e.g. if he stands by and sees a building completed which he knows is being erected for the purpose of carrying on an obnoxious trade (m) See Broom's Corns. 992, 993. \n) SoUau v. De Held, 2 Sim. (N. S.) 133. OF TOKTS AFFECTING LAKD. T,23 amounting to a nuisance — he will lose his right to an injunction, though it would be otherwise were he not aware that the act would constitute a nuisance, or if the nuisance exceeded what he had reasonable grounds for believing it would amount to (o). Besides the before-mentioned remedies by legal Abatement ,, . , ,1 J.U i. „ of nuisances. process, there is yet another course that can some- times be taken by a person affected by a nuisance, and that is the abatement of it, which may be defined as a remedy by the act of the party, consisting in the removal and doing away of the nuisance. Hei e a public again is another difference between a public and a "j^Q^oJI^y ^j^ private nuisance, for in one of the former kind it can iii^ted where ■t ' ... it particularly only be abated where it does the person abatmg it affects the some special and peculiar harm, but in one of the latter kind the person prejudiced has always the right of abating it (p). Thus, in the case of an obstruction placed on a public road, strictly speaking a private person has no right to remove it unless he requires to pass that way, and then, as it does him a special and peculiar injury, he may; but in the case of, say, the erection of a spout discharging water on to a person's land, here, as this is a private nuisance only affecting that person, he has a right to remove it. And so also Cutting trees. if trees on one man's land overhang the adjoining land, the owner thereof is entitled to cut them, however long they may have been thus overhanging, and it is not necessary first to give notice of the intention to so cut them (q). The abatement of a nuisance must, however, be The abatement done peaceably and without danger to life or limb ; niu'^st^iT so that although, if a house is wrongfully built on peaceable, another's land (which will constitute both a trespass (o) Addison on Torts, 394. (p) 3Liyor of Colchester v. Brook, 7 Q. B. 389 ; Earl of Lomdale v. Nelson, 2 B. & C. 302. (fy) Lemmon v. Webb, (1S95), A. C. i ; 64 L. J. Ch. 205 ; 71 L. T. 61 7- 334 OF TORTS AFFECTING LAND. and a nuisance), the person affected is justified in pulling it down, yet he cannot do so if individuals Notice usually are actually in the house at the time (r). And if to before entering ahate a nuisancc it is necessary to enter on another's iTnd"to*a,bate ^^°^j noticc must be given to the occupier of such a nuisance. land requiring him first to remove it (s), uuless it is of such a kind as to render it positively unsafe to wait, when an immediate entry will be perfectly jus- tifiable (t), provided it is made peaceably, or at the most with as little violence as is necessary under the circumstances. But although a person may be justi- iied in entering on another's lands to abate, he is not justified in so entering to prevent the commission of a nuisance (u). 111. "\Vaste. Waste may be defined as some act committed by a limited owner of an estate exceeding the right which he has therein. It does not appear to be strictly correct to say that it is some act w^iich tends to the deprecia- tion of the inheritance, nor to say that it is some havoc or devastation, for an act which does not really injure the property, but, on the contrary, improves it, may Persons liable possibly yet amount to waste. As to who are liable oi was e. £^^ waste, tenants for life, for years, at will, or at sufferance are ; but a tenant in tail is not, because he can at any time bar the entail and make himself absolute owner of the property, unless he be a tenant in tail after possibility of issue extinct, and then, as he cannot bar the entail, he is liable for that kind of waste called equitable waste. A tenant in fee simple is, of course, not at all liable for waste, unless, indeed, he be a tenant in fee simple with an executory devise over (x). (r) Perry v. Fitzhowe, 8 Q. B. 757. (s) Ibid. (t) Per Best, J., Earl of Lonsdale v. Xelson, 2 B. & C. 31 1. (u) Addison on Torts, 396. See further as to abatement of nuis- ances, Addison on Torts, 396-399. (x) The subject of waste is most properly discussed in a work on real property law. It is not, therefore, dealt with further here. On the subject generally the reader is referred to Lewis Bowles' Case, OF TORTS AFFECTING LAND. 3 Another tort indirectly affecting land may here be Slander of shortly referred to, viz. slander of title. If lands are about to be sold by auction, and a person declares in the auction-room, or elsewhere, that the vendor's title is defective, or makes other statements calculated to deter, and which do deter, people from buying, or from buying at as high a price as would otherwise have been the case, this is actionable unless the truth of the state- ments can be proved. In all such cases, however, the plaintiff must prove special damage caused to him by the defendant's act (y). This right of action for slander of title formerly only existed as regards laud, but such an action may now be brought even as regards chattels (z). and notes, in Tudor's Convej-ancing Cases, 37, and to Garth v. Cotton, and notes, in i White and Tudor's Equity Cases, 806. The student will also find a useful short statement of the liabilities of different owners in respect of waste in Indermaur's Epitome of Conveyancing and Equity Cases, 7th edit. 5. [y) Addison on Torts, 259. (3) Wren v. WeiU, 38 L. J. Q. B. 327. ^j6 OF TORTS AFFECTING GOODS CHAPTER III. OF TORTS AFFECTING GOODS AND OTHER PERSONAL PRO- PERTV, AND HEREIN' OF THE TITLE TO THE SAME. Torts to soods, TORTS to goods and Other personal property mainly tndeTTe come Under one of two divisions, viz.: (i) Trespass, headof tres- r^jj^j ^2) Conveision. The former may be described as vursion.*^"''' the wrongful meddlinpr by a person with the goods of another, and the latter as the taking of goods from the possession of another and exercising some dominion or control over tliem. Mode of con- "^^0 will Consider the subject of torts affecting goods sidering torts ^^j^j other pcrsonal property in the following manner : — to goods, &c. , ■^ adopted in this cbiipter. ^ rj<^^^ ^.j.^g necessary to enable a person to sue in respect of such a tort. 2. The tortious acts themselves. 3. Justification of the tortious acts. 4. Some miscellaneous points connected with the subject. I. Title. The mere fact of a person having goods in bis pos- session generally raises a presumption that they are Possessiou his property, and that he has a perfect title to them, raises a ^hat he can dispose of and deal with them to the presumption ^^ uric^u r of title. fullest extent ; but this is of course only a presump- tion, and the general rule is Kemo dat quod non habet. Generally speaking, the mere fact of bare possession OF TORTS AFFECTING GOODS. 337 constitutes a sufficient title to enable the party enjoy- ing it to maintain an action against a mere wrong- doer (a) ; but this is not always so, for a person may have possession of goods and yet have no real title to them, or an imperfect one. As to stolen goods, the thief naturally has no good As to stolen title to them, and the law is (except in the case of ^°°^ *' bills of exchange, promissory notes, and other negoti- able instruments (b) ) that he can give no title to them, except by a sale in market overt when it is otherwise (c). By a sale in market overt is meant "svhat is meant selliug goods in open market as opposed to selling overtr them privately. In the country, the market-place or piece of ground set apart by custom for the sale of goods is in general the only market overt there ; but in the city of London, and in other towns when so warranted by custom, a sale in an open shop (<^) of proper goods is equivalent to, and in fact amounts to, sale in market overt (c). This advantage of a sale in The advantage market overt, which is now expressly recognized by market^oveit the Sale of Goods Act, 1893 (/), existed at common ^■'^'*'®'^^ ^* J ^u \^ /^ common law. law (g), and is of material importance, enabling, as it does, a person to give a good title to goods where he could not have done so by a private sale of them ; but it must also be carefully borne in mind that there is one case in which even this kind of sale by a wrongful owner will not have this effect, it being provided by the Sale of Goods Act, 1893 (^Oj that Sale of Goods where goods have been stolen and the offender is s.%.^^'^^' prosecuted to conviction, the property in the goods so (a) Armory v. Delaviirie, I S. L. C. 385 ; i Strange, 504 ; Per Lord Campbell, C.J., in Jeffries v. Great Western Ry. Co., 5 E. & B. 805. (b) As to wliich, see ante, pp. 165-197. (c) 56 & 57 Vict. c. 71, s. 22. (d) Haryreave v. Spink, (1892), I Q. B. 25 ; 61 L. J. Q. B. 318 ; 65 L. T. 650. (e) Brown's Law Diet. 332. (/) 56 & 57 Vict. c. 71, s. 22. {g) See the case of Market Overt, Tudor's L. C. Mer. Law, 274 ; and also see Crane v. London Dock Co., 33 L. J. (Q. B.) 224. (A) 56 & 57 Vict. C.71, s, 24, which is based upon the provision con- tained in the Larceny Act, 1861 (24 & 25 Vict. c. 96, s. lOo). Y 338 OF TORTS AFFECTING GOODS stolen revests in the person who was the owner of the goods, notwithstanding any intermediate dealing with them whether by sale in market overt or otherwise, so that he can sue to recover them from any person into whose hands they may have got (i). The Act goes on, however, specially to provide that where goods have been obtained by fraud, or other wrongful means not amounting to larceny, the property in such goods shall not revest in the person who was the owner of the goods by reason only of the con\'iction of the offender. This is a modification of the previous law, for it had formerly been held that, under the provisions contained in the Larceny Act, 1861 (k) (which formerly entirely governed tlie matter), there was no distinction between cases of false pretences and larceny (/). Special pro- And as to One particular kind of property, viz. a saie'^of a horse, horse, it is cxpressly provided that even although bought in market overt, a sale of it will confer no better title than the vendor had, unless it has been exposed there for sale for an hour between ten in the morning and sunset, and also the price, colour, and marks of it, together with the names, descrip- tions, and abodes of the buyer and seller, have been taken down by the book-keeper ; and even when these formalities are complied with, if the horse has been stolen, the rightful owner may at any time within six months after the sale recover it, on tender- ing to the person possessed of it the price he has bo7id jide paid for it (wi). (i) Cundy v. Lindsay, 3 App. Cas. 459 ; 47 L. J. Q. B. 481. (it) 24 & 25 Vict. c. 96, s. 100. \l) Bentley v. Vilmont, 12 App. Cas. 471 ; 57 L. J. Q. B. 18. The case of Moyce v. Newington, 4 Q. B. D. 32 ; 48 L. J. Q. B. 125, which was overruled by Bentley v. Tilmont, is, therefore, now good law under the new provisions, and it furnishes an apt illustration of the modification now introduced. (m) 2 & 3 P. & M. c. 7 ; 31 EHz. c. 12. It is extraordinary that the Sale of Goods Act, 1893, should have left these old statutes still ex- isting, but it does, and it in fact expressh' recognizes them by enacting (s. 22), "Nothing in this section shall affect the law relating to the sale of horses." AND OTHER PERSONAL PROPERTY. 339 A person who has found goods does not acquire Eights of a any absolute title by such finding, but he does acquire " ®^ ° ^°° ^' a qualified title that will be good against all the world except the rightful owner or his representatives. This was decided in the important case of Armory Armory v. V. Delamirie (n). There the plaintiff, a chimney- ^'^" ""■"'• sweeper's boy, had found a jewel, and taken it to the shop of the defendant, a goldsmith, to know what it was ; he there delivered it to the defendant's ap- prentice, who, under a pretence of weighing it, took out the stone, and the master, the defendant, then offered the plaintiff three-halfpence for it. On the plaintiff refusing to accept this, and requiring to have the jewel back, the socket was returned to him with- out the stone, and this action was brought for damages in respect of the wrongful conversion. It was objected that the plaintiff had no title to enable him to sue in respect of the wrongful conversion, but the Court decided that he might do so, as, though he had no absolute title to it, yet he had a title against every one but the rightful owner. So also where a person picked up a parcel of bank-notes in the defendant's shop, and temporarily deposited them with the de- fendant to restore to the true owner when he was ascertained, and no owner appeared to claim them, it was held that the original finder might recover them from the defendant (o). These cases illustrate the rule already stated, that bare possession is generally a sufficient title as against wrongdoers. If an honest finder sells to a person bond fide in market overt, he will give a perfect title, as there is here no one liable to be prosecuted and convicted. Any money, coin, gold, silver plate, or bullion found Treasure (troiivd) in the earth or sea, the owner whereof is un- known, is called treasure trove. The property therein, (n) I S. L. C. 385 ; l Strange, 504. (0) Bridges v. Mawkesivorth, 21 L. J. (Q. B.) 75. 340 OF TORTS AFFECTING GOODS and the title thereto, under different circumstances, vest either in the Crown, the lord of the manor within whose limits it is found, or the finder (j)), but the Crown is ^:)n?n(i facie entitled (q). A judgment A person purchasing goods from one against whom a thrtitie tf '''^ judgment has been signed gains a perfect title to such goods unless they are actually taken in execution, or he has, at the time of acquiring his title, notice that a writ of execution is lying unexecuted in the hands of the sheriff, under which the goods might be seized (r). A person purchasing goods from one against whom a receiving order has been actually made, can gain no title to them ; nor can he after an act of bankruptcy and before the date of the receiving order, unless he has bought them ho7id fide without notice of the act of bankruptcy (.s). Property in animals and fish. Property in game as between land- lord and tenant. In animals of such a nature as horses, cows, sheep, &c., a person may, of course, have an absolute property ; but in animals of a wild nature and not ordinarily in man's dominion, called animals fercc naturcc, he can only gain a qualified property, as by taming them, or their being on his land, or their being so young as not to be able to get away, or by reason of his being pos- sessed of a forest, chase, or rabbit-warren. Also in fish a person may gain a title by harpooning or hooking them (f). Where a person leases his lands to another without reserving the game, it belonged by the common law to the tenant ; but by the principal Game Act (w), it was provided that in all cases of tenancies existing before (p) Brown's Law Diet. 539. (q) Att.-General v. Moore, (1893), I Cb. 676 ; 62 L. J. Ch. 607 ; 68 L. T. 574- (r) 56 & 57 Vict. c. 71, s. 26. (s) 46 & 47 Vict. c. 52, s. 49. [t] Addison on Torts, 542. \u) I & 2 Wm. 4, c. 32. AXD OTHER PERSONAL PROPERTY. 34 I the passing of that Act (x) the landlord should have the right to the game, except such a right had been expressly granted or allowed to the tenant, or a fine had been taken upon the granting or renewal of the lease (y). Under this Act, as regards the future, the occupier for the time being of lands had given to him the sole and exclusive right of killing and taking the game upon the land, unless such right was reserved to the landlord or any other person ; and where any landlord had reserved to himself the right of killing game upon any land, it was made lawful for him to authorize any other person or persons, who should have obtained an annual game certificate, to enter upon such land for the purpose of pursuing and killing game thereon (z). The subject of ground Ground Game game is, however, now governed by the Ground Game Act, 1880 (a). Under this Act every occupier has, as incident to and inseparable from his occupation, the right, either by himself or by persons duly authorized by him in writing (b), to kill, take, and sell ground game, concurrently with any other person who may be entitled to kill and take the same, and every condition or agreement which purports to divest the occupier's right in this respect is void (c). This provision does not, however, apply to cases in which, at the time of the passing of the Act (d), the right of taking game was for valuable consideration vested in some person other (x) October 5, 1831. iy) I & 2 Wm. 4, c. 32, ?. 7. (s) I & 2 Wm. 4, c. 32, s. II. (a) 43 & 44 Vict. c. 47. (6) The Act provides that the occupier himself and one other person authorized in writing by such occupier, shall be the only persons entitled under its provisions to kill ground game with firearms, and that no person shall be authorized by the occupier to kill or take ground game in any way, except members of his household resident on the land in his occupation, persons in his ordinary service on such land, and any one other person bond fide employed by him for reward in the taking and destruction of ground game {43 & 44 Vict. c. 47, s. I). (c) 43 & 44 Vict. c. 47, ss. I, 3, 4, 8. (d) September 7, 1880. 342 OF TORTS AFFECTING GOODS than the occupier (c). It has recently been decided that the Ground Game Act does not prevent a tenant from absolutely assigning his right to kill game to a third person for value, but that it only makes void any arrangement, of any kind, which as between the landlord and the tenant would bar the tenant's right (/). II. The tortious acts themselves. Instances. It has been stated that torts to personal property consist mainly of trespass or conversion. The dis- tinction between trespass to goods (which is called trespass de bonis asportatis) and conversion of goods has been well expressed as follows : " If a man who has no right to meddle with goods at all, takes them and removes them from one place to another, an action may be maintained against him for a trespass; but he is not guilty of a conversion of them unless he re- moved the goods for the purpose of taking them away from the plaintiff, or of exercising some dominion or control over them for the benefit of himself or of some other person " {(/). Numerous instances of trespass to goods might be given ; thus in the case of carriers of goods, or innkeepers, dealing wrongfully with the goods they are conveying or holding, here are common instances in which an action will lie {h). So also if a wrongful distraint is made on goods, this is a tres- pass (i). As examples of conversion of goods may be mentioned the appropriation of goods by a bailee, or where anv one finding (roods afterwards refuses to give the same up to the real owner on demand made. But all acts of trespass or injury to goods are not (e) 43 & 44 Vict. c. 47, s. 5. (/) Morgan v. Jackson, (1895), I Q. B. 885 ; 64 L. J. Q. B. 462 ; 72 L. T. 593. {g) Addison on Torts, 49S. (h) See as to carriers, ante, pp. 129-138; as to innkeepers, ante, pp. 139-141- ()') As to which, see ante, p. 76, and Semay7ie's Case, there referred to ; also as to when a person will be a trespasser ab initio, see ante, p. S3, and the Six Carpenters' Case, there referred to. AND OTHER PERSONAL PROPERTY. 543 of a direct nature, but may arise in various ways. Duty as to Thus, if one person lends out to another, or gives to thmgT"^^ another to carry, any article of a highly dangerous character, or which, though not naturally dangerous, has yet such defects as to make it dangerous, of which fact he is or ought to be aware, he is liable for any injury done to property thereby (k). Am l any person ^g«jj ^• who brings and keeps on his property for his own pur- poses animals or any other things — e.g., water or sewage — which may escape and do injury to property, is liable for any injury occasioned thereby, for it is the duty of the owner to keep the same under due control, so that they may do or cause no injury (I). Sic uUre tuo ut alieniLm non Icedas (w) is, indeed, an established principle governing such cases as this, and if a person will bring into or collect on his property things of a manifestly dangerous nature, or which may become so, he does it at his own peril, and it is not necessary, if damage occurs by reason of their escape, to prove nefjligence. Thus, to further illustrate this, it may be mentioned that where the owner of land had thereon a yew-tree, the branches of which projected on to his neighbour's land, and the neighbour's horse ate some of the leaves and was poisoned thereby, the owner of the land on which the tree was growing was held liable (w) ; but where the same thing happened, ex- cept that the branches of the yew-tree did not pro- ject, but the plaintiff's horse trespassed and ate the leaves, it was held the defendant was not liable (o). And, notwithstanding what has been stated, if the injury caused by a dangerous thing on a person's land (k) Blackmore v. Bristol and Exeter By. Co., 27 L. J. (Q. B.) 167. (I) Bylands v. Fletcher, L. R. 3 H. L, Cas. 330; 34 L. .J. Ex. 177 ; Anderson v, Oppenheimcr, 5 Q. B. D. 602 ; 49 L. J. Q. B. (App.) 708 ; Snow V. Whitehead, 27 Ch. D. 588 ; 53 L. J. Ch. 885 ; 51 L. T. 253 ; 33 W. R. 128 ; Ballard v. Tomlinson, 29 Ch. D. 115; 54 L. J. Ch. 454 ; 52 L. T. 942. ^ „ (m) " Use your own rights so that you do not hurt those of another. (n) Croivliurst v. Amersham Burial Board, 4 Ex. D. 5. See also Fii-th V. Bowliwj Iron Co. , 3 C. P. D. 254. (0) Panting v. Noakes, (1894), 2 Q. B. 281 ; 63 L. J. Q. B. 549 ; 70 L. T. 842. 344 OF TORTS AFFECTING GOODS Whalley v. Lancashire and Yorkshire Railway Oompany. Injuries by animals. Scienter. is due to the act of God — that is, such an act as could not ordinarily be anticipated — the party is not here liable. Thus, where the defendant had on his land stored up water, and an overflow occurred from an extraordinary storm, it was held that the defendant was not liable (j^)- Where a person is not responsible for the dangerous thing that is on his land being there, he is, of course, not liable for its escape ; but he is not justified in actively transferring the mischief on to his neighbour, and will be liable if he does that. Thus in a recent case (q), on account of excessive rainfalls, a quantity of water accumulated against a railway embankment, which it threatened to destroy, and to protect it the railway com- pany cut trenches which caused the water to be trans- ferred to the lower land of the plaintiff; it was held that the company were liable for the damage done. With regard to animals fercc naturcc, such as rabbits, and with regard also to pigeons, it seems that though a person breeds them on his land, as he only has pro- perty in them whilst on his land, he is not liable for any injury they may do if they escape, the only remedy of the person injured being to capture or de- stroy them (?'). Subject to this, however, in the case of creatures which are by their very nature likely to do injury, the person owning, keeping, or harbouring them is always liable for any damage done by them ; but in the case of animals not of such a character, to make a person liable for injuries to property done by them, a previous scienter or knowledge of the creature's mischievous propensities must be proved (s). This is (p) I^'ichols V. Marsland, 2 Ex. D. i ; 46 L. J. Ex. 174 ; 25 W. R. 173. {q) Whalley v. Lancashire and Yo7-lshire Ry. Co., 13 Q. B. D. 131 ; 50 L. T. 472 ; 53 L. J. Q. B. 285 ; 32 W. R. 7". (r) Addison on Torts, 1 31. (s) Sanders v. Tcape, 51 L. T. 263 ; 48 J. P. 757 ; Cox v. Burbridge, 16 C. B. N. S. 430. AND OTHER PERSONAL PROPERTY. 345 shewn more particularly with regard to injuries to the person {t), but it has also application to injuries to goods. On the above principle, therefore, that the scienter of the owner must be shewn, it was formerly held that if a man's dog strayed and trespassed on another's land, and by biting, worrying, or otherwise, injured that other's sheep or cattle, unless the owner could be proved to have known that his dog had previously so acted, he was not liable, because, it was said, the worrying and killing of sheep is not in ac- cordance with the ordinary instinct and nature of the animal (it). The contrary is, however, now the law, it Dogs Act, being enacted (.';) that " 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 shew a previous mischievous propensity in such dog, or the owner's knowledge of such mischievous propensity, or that the injury was attributable to neglect on the part of such owner " (y). Damages, where not exceeding £$, are under the provisions of this Act recoverable summarily before a justice or justices in petty sessions. It will be noticed that the words used in the Act are injuries to " cattle and sheep " only, so that as to injuries to animals not coming under those designations, or to other personal property, the rule as to the necessity of proving the scienter' of the owner still remains law ; thus in the case of an injury done by one dog to another, scienter must still be proved. It has, how- ever, been decided on the general intention of the Act that the term " cattle " includes horses (z). As to what will amount to a scienter of viciousness, what will . . . . ,1 , ,1 • amount to it IS enough to shew that the owner was m any way scienter. (t) See this noticed post, in chapter vi. , " Of Torts arising particularly from Net;ligence. " (u) Addison on Torts, 130. (x) 28 & 29 Vict. c. 60. (y) Sect. I. (z) Wri(jht V. Pearson, L. R, 4 Q. B. 582 ; 38 L. J, (Q. B.) 312. 346 OF TORTS AFFECTING GOODS aware of the animal's savage disposition, and it is not actually necessary to prove that the animal has pre- viously bitten some one else (a). If the owner of an animal appoints a servant to keep it, the servant's knowledge of the animal's disposition is equivalent to the knowledge of the master ; but it is not necessarily so if the servant is not so specially appointed, or has no special control in the matter (6). The doctrine The doctrine of scienter in relation to injuries to doesn'ot^appiy animals, is not applicable to cases where there is an when there is independent obligation by contract to take reasonable au obligation ^ . existing by care ; SO that where the plaintiff entrusted the defen- dant with a colt to take care of, and the defendant put it in a field near to where he kept a bull, and the bull gored the colt, it was held that the defendant was liable although he had no knowledge of the bull's viciousness, and in fact had always believed it to be a perfectly gentle animal {c). If a dog of a Although a person is not liable as a trespasser for miscliiGVoiis C3 X •*- propensity his dog Straying on to his neighbour's lands {d), yet if strays and does ■ injury irv^the °^^ it be of a peculiarly mischievous propensity, which is owner is liable, i^^own to him, he is liable for any injury it may do to his neighbour's property (c) ; and if a dog whose nature it is to destroy game, or who has been trained for that purpose, strays on to another's land and does injury in that way, the owner is liable in respect of all such injury (/). It is a tortious To kill or injure any creature the property of injure another auothcr is a tortious act, for which the person so man's dog killing or injuring will be liable, even although the or cat. o J o o (a) Worth v. GilUng, L. R. 2 C. P. 685. (6) Baldunn v. Casella, L. R. 7 Ex. 325 ; Stiles v. Cardiff Steam I^avigatioti Co., 33 L. J. Q. B. 310. (c) Smith V. Cook, I Q. B. D. 79 ; 45 L. J. Q. B. 122. (d) See ante, p. 324. (c) Addison on Torts, 130. (/) Read v. Edivards, 17 C. B. (N. S.) 245 ; 34 L. J. C. P. 32. JOHB OTHER PERSONAL PROPERTY. 347 creature be only a dog or a cat. And it is also a tortious act to kill the dog of another, although it is actually known to be of a ferocious disposition, and is found going at large ; unless, indeed, it is actually attacking a person at the time when it is killed (g). A person is not justified in killing his neighbour's straying dos or cat which he finds on his land, unless the ani- "^ mal is in the act of doing some injurious act which can only be prevented by its slaughter (h). And it injury done has been held that if a person sets on his lands a trap ^' ^^^^^' for foxes, and baits it with such strong-smelling meat as to attract his neighbour's dog or cat on to his land to the trap, and such animal is thereby killed or injured, he is liable for the act, though he had no intention of doing it, and though the animal ought not to have been there (i). A person can be guilty of an act of trespass or con- Conversion version by his agent; and the ratification of a prior ^^agent's act, act originally unauthorised will amount to a conver- ^^t*^jf^.ation"^ sion by the person so ratifying it, provided the per- son doing the act professed at the time to be doing it as his agent. Thus, if A. meddles with the goods of B. and takes them away, professing to act in so doing for C, who gave him no instructions or authority to do so, but C. afterwards acknowledges and ratifies the act, it amounts to conversion by C. But for a ratifi- cation to have this effect, it must be with the full knowledge of the nature of the act committed, or with an intention to adopt that act at all events (k) ; so that where a landlord gave a broker a warrant to distrain for rent, and the broker took away and sold a fixture and paid the proceeds to the landlord, who received the money without inquiry, but yet without (r/) Addison on Torts, 508. (h) Ibid. 508, 509. (i) Townsend v. Watkcn, 9 East, 277 (k) I S. L. C. 391. 348 OF TORTS AFFECTING GOODS auctioneers. any knowledge of the broker's irregularity, it was held that no such authority appeared as would sustain an action against the landlord (/). Conversion by If a person in any way unlawfully meddles with inSkhig'^''' and exercises an act of ownership over the goods of away goods, another, an act of conversion is at once committed, and an action for such conversion may be maintained immediately against him. Thus, in the case of Cochrane v. Ryriiill (m), the plaintiff advanced money Conversing by to One Peggs OH a bill of Sale of his effects. The defendant, an auctioneer, without notice of the plain- tiff's rights, by the direction of Peggs, sold the effects, and after deducting money he had advanced Peggs on account, paid the whole balance to him. The plaintiff sought to recover the value of the goods on the ground of their conversion by the defendant, and it was held that the plaintiff was entitled to recover, for the dealing with the property and sale by the defendant amounted to a conversion. But if in this case the goods had been sent to the defendant in the ordinary and usual course of the business of the person sending them (n), the decision would have been different (o). It may be noticed that the protection afforded to a purchaser of goods in market overt (j>) does not ex- tend to an auctioneer selling in market overt so as to save him from the consequences of an inadvertent conversion (q). {I) Freeman v. Rosher, 13 Q. B. 780. (m) 40 L. T. 744 ; 27 W. R. 776. This case is perfectly distinguish- able from a subsequent case of National Mercantile Bank v. Ryrnill, 44 L. T. 767. (n) It matters not that the auctioneer was acting in the way of his ordinary business ; that will not protect him. The case of Turner v. Hockey (S6 L. J. Q. B. 301), in so far as it decides anything to the contrary, cannot be maintained. See Barker v. Furlong, (1S91), 2 Ch. 172; 64 L. T. 411 ; Consolidated Co. v. Curtis, (1892), I Q. B. 495; 61 L. J. Q. B. 325 ; 40 W. R. 426. (o) National Mercantile Bank v. ITampson, 5 Q. B. D. 177 ; 28 W. R. 424 ; Taylor v. M'Keand, 5 C. P. D. 35S ; 49 L. J. C. P. 563 ; 28 W. R. 528. {p) See ante, p. 337. iq) Delaney v. Walli?, 14 Ir. Reps. Ch. 31. AND OTHER PERSONAL PROPERTY. 349 If goods come to a person's hands lawfully in the when demand first instance, and he then detains them, to enable the beforrsuing owner to maintain an action for conversion, he must ^°^' conversion, first make a demand for such goods, and then, on refusal to deliver them, he may sue for their con- version (r). This demand for, and refusal of, the goods furnishes evidence of a conversion of them either then or at some time previously (s). There are, however, some cases in which a person is When a justified in refusing to deliver up goods in his posses- f'ustifiecUn sion thoua^h he is not the owner of them, and in which ^'^fusmg to c _ ' dehvei- goods his refusal will not render him guilty of a conversion, to the owner. Thus if goods are deposited in a person's hands for another, but subject to a certain charge in some third person's favour, here the depositee is justified in refus- ing to deliver the tioods over to the owner of them unless he has ascertained whether such charge does or does not exist. And, of course, with still greater force, if the depositee has himself some claim in the nature of a lien, he is justified in retaining the goods until such lien is satisfied. If, however, the lien is disputed, and the owner brings an action to recover the goods, he can at once obtain possession of them on paying into court the amount of the lien to abide the result of the action (t). And if a person has goods of another and leaves them with his servant, and demand of them from the servant is made by the owner, here the ser- vant is justified in refusing to deliver them up until he has had an opportunity of receiving his master's in- structions upon the subject ; and such a refusal is a qualified, reasonable, and justifiable refusal, and no evidence of a conversion in an action brought by the owner against the master (u). (?•) Thorogood v. Robinson, 6 Q. B. 772. (s) Wilton V. Girdlestone, 5 B. & Aid. 847. (t) Order L. rule 8 ; Gebruder Naf v. Ploton, 25 Q. B. D. 13 ; 63 L. T. 328. (m) Addison on Torts, 505. 350 OF TORTS AFFECTING GOODS Right of owner to follow proceeds of goods wrong- fully converted. Interpleader, what it is, &c. III. Justifica- tion. Instances of justification. The owner of goods which liave been wrongfully- converted may follow the proceeds thereof so long as he can mark or distinguish them, and provided there is no countervailing and superior title, such as a pur- chase in market overt. Tiius, where a person wrong- fully obtained goods and sold them, and the proceeds of sale were paid into a colonial bank for the purpose of transmission to its London branch, it was held that the owners of the goods were entitled to follow the proceeds into the hands of the bank (x). Where a person is in doubt which of two or more persons demanding goods of him is the true owner to whom he ought to deliver them, the course open to him is to interplead, that is, take certain steps to have it decided between those parties which of them is the one entitled. There was always a process of inter- pleader in equity, but this necessitated the person in doubt filing a bill there, so that if an action was brought against him by one of the parties, and he did not know whether that person or the other was entitled, his only course to obtain relief was to file a bill of interpleader. This process of interpleader in equity has, however, long been obsolete, there being full provisions as to interpleader at common law (y). There may be many cases in which the commission of a trespass to goods is justifiable, as has incidentally appeared in some of the foregoing remarks. " If a man's goods and chattels obstruct me in the exercise of my right of way, I have a right to remove them. If he places a horse and cart in the way of the access to my house, or before the door, so that I cannot drive up to it, I have a right to lay hold of the horse and lead him away, and, if necessary, to whip him to make {x) Comitides Assureurs Maritimes v. Standard Bank of South Africa, I C. & E. 87. (y) The practice as to interpleader is now regulated by Order LVir. AND OTHEE PERSONAL PROPERTY. 35 I him move on. So, if a person's goods are placed on my ground, I may lawfully remove them ; and if his cattle or sheep come upon my land, I may chase them and drive them out " (z). All these form instances of the justification. It is perfectly justifiable to kill a naturally ferocious when justifi- animal which is found at large, e.g. a lion or a tiger, another's but this does not extend to justify a person killing a ^•^i^^'^l- ferocious dog simply found at large (a). But it is perfectly justifiable for a person who is attacked by a dog to kill it in self-defence, or to kill it when it is chasing sheep or cattle, and they cannot be preserved without (h). It is also justifiable for the police to detain any dogs found at large without an owner, and if any dog is of an actually dangerous disposition, application may be made to justices, who may order ir, to be destroyed (c). Cases in which a person is justified in refusing to Acts not really J i.1 T- t. 1 • J. i-i, ^ • amounting to give up goods, though belongmg to the person makmg trespass or the application for delivery to him, have already been conversion, mentioned (d). These cases cannot be called the justi- fication of a conversion, but rather cases in which acts, though apparently constituting a conversion, do not actually amount to it. So also with regard to the justification of a trespass, perhaps these cases would be more correctly described as cases in which acts, though apparently constituting a trespass, do not actually amount to it. Although a person does what is apparently an un- An act done ,•£• ^ 1 • • i ±.1 } J.1 n ^ accidentallv justmable mjury to another s property, he may find maybe ex- an excuse for it by showing that it was the result of c^sabie. (z) Addison on Torts, 497, 498. (a) Ante, pp. 346, 347. {b) Ibid. (c) 34 & 35 Vict. 0. 56. [d) Ante, p. 349. 352 OF TORTS AFFECTING GOODS IV. Miscella- neous poiut. Eecaptiou. How a person is justified in effecting a recaption. unavoidable accident ; as, if a man is riding along the streets, and accidentally, and without any fault on his part, his horse runs away and does injury, lie is not liable. So again, on the same principle, if a person is walking along the streets, and accidentally slips and falls against and breaks a window, he is not liable for the damage done. But if, in either of these cases, at the time of the accident the person was doing an unlawful act, e.g., committing an assault, he would be liable {e). Self-defence is a natural act open to every man, and if a person has actual possession of goods or other personal property, and another wrongfully attempts to take the same from him against his will, he is perfectly justified in using all force necessary for the purpose of defending his own possession and preventing the act of trespass or conversion ; he must, however, use no more force than is, under the circumstances of the case, necessary (/). And even if a person is wrongfully dispossessed of his goods, he has the right of recaption. Eecaption may be defined as a remedy by the act of the party, consisting in the right of the true owner of goods to follow them into the hands of another, and actually retake them from that other and repossess himself thereof {g). And a person to exercise this right of recaption, if the taker has removed the goods on to his own land, may enter thereon and take them, and will commit no trespass in so doing ; but in exercising this right he must be careful not to do any act that may render him in his turn an aggressor — he must not use any undue force, must not effect the retaking (c) Hammach v. White, 5 L. T. Rep. (X. S.) 676 ; and see Vaughan V. Taff Vale Ry. Co., 5 H. & N. 679; Manzoni v. Douglas, 6 Q. B. D. 145 ; 50 L. J. Q. B. 2S9 ; 29 W. R. 425. ( /■) Broom's Coins. 200 ; judgment in case of Rcrj. v. Wilson, 3 A. & E. 825. {7) Brown's Law Diet. 444. AND OTHER PERSONAL PROPERTY. 353 ia a riotous manner, and must not commit a breach of the peace. But although (as stated above) if a man actually The mere takes goods away and places them on his land, the being on°" * owner may enter and retake them, yet the mere fact 'another's land '' "^ does not that goods which have been actually wrongfully taken justify an away are on another's land will not justify the owner them. ° ^ ^ in entering on such land to retake them ; he must shew how they have got there. If, however, the goods so wrongfully taken are found in a fair or on a common, then the mere fact of their being there justifies the owner in retaking them {h). When trespass to goods is committed, or a conversion who can sue of them takes place, the person possessed of them at conversum.^ *"^ the time of the committing of the wrongful act is generally the person entitled to maintain an action in respect of it. But in the case of a bailment of Bailments. goods, there being an interest in both the bailor and the bailee, the rule in the case of many tortious acts is, that either or both of them may maintain an action in respect thereof {i). Thus, if goods are let out by A. to B., and a trespass is committed in respect of them by a third person, C, whereby they are de- stroyed or permanently and materially damaged, B. may sue in respect of the direct loss to him, and the bailor A., who is entitled after the determination of the bailment, may sue for the ultimate injury done to him. To entitle the bailor, however, in such a case to sue, the injury done must be of a permanent nature {k). But where a conversion takes place in respect of goods the subject of a bailment, and the bailee has a right to them for some fixed and specific {h) Broom's Corns. 200, 201. {i) Per Parke, B., Reg. v. Vincent, 21 L. J. (N. C.) 109; see also ante, p. 142. (h) Hall V. Pickard, 3 Camp. 187 ; Mears v. London and South- western Ry. Co., II C. B. (N. S.) 850. Z 354 OF TORTS AFFECTING GOODS period yet unexpired, here the bailor cannot sue in respect of the conversion, but the action must be by the bailee ; unless, indeed, the very conversion occurs by the tortious act of the bailee which determines the bailment (/). Remedy for trespass to goods. The legal remedy for a trespass was originally either by action of trespass for damages for the direct injury done, or an action of trespass on the case for the injury, not direct, but consequential, and this was, in fact, the only difference in the two forms of action. The present system of pleading under the Judicature practice, however, now entirely does away with all such distinctions (and, indeed, this distinction of forms of action had ceased long before), and in respect of a trespass committed to goods, the proper remedy is by an action to recover damages for the tortious act. Remedies for wrongful con version. With regard, however, to cases in which the tor- tious act amouuts not merely to trespass, but to a conversion of goods, that is, to the actual taking away and wrongful appropriation of them, or where goods are wrongfully detained by a person from the true owner, though all distinctions in the forms of action are now quite done away with, yet it will be useful to note the former remedies and the present Former action position. In cases of convcrsion, the action brought was an action of trover (so called because founded on the supposition, generally a mere fiction, that the defendant had found the goods in question (m) ), and the claim of the plaintiff was not for the return of the goods, but to recover the value of them. In the case of wrongful conversion now, though there is no such thing as an action of trover, yet the remedy may still well be called an action in the nature of an action of trover, being to recover the value of them as formerly. of trover. (I) Fenn v. Bittleston, 7 Ex. 159. (m) Wharton's Law Lexicon, 748. AND OTHEK PEESONAL PROPERTY. 355 But when goods were wrongfully detained from a Foimer action person, there was another action that he might bring, ° ^^t^""®- called an action of detinue, being to recover the goods, or on failure thereof the value, and also damages for the detention (n). It was in the option of the defen- dant, on a verdict against him, either to return the goods or pay their value ; but by the Common Law Procedure Act, 1854 (0), it was enacted that the plaintiff might apply to the Court or a judge to order exe- cution to issue for the return of the particular goods without giving the defendant the option of retaining them on paying their value, and the Court or a judge might at discretion so order (^). So now, therefore, though, under the Judicature practice, all distinctions in forms of actions are done away with, yet an action may still be brought for the return of the goods detained, which may well be styled an action in the nature of an action of detinue. Where an injury has been committed to the goods Exception to and chattels of a person who then dies, the right oi ^^^^^^^^ff^^^^ action survives to his executors or administrators, thus forming an exception to the maxim, Actio personalis moritur cum persond (q). Thus, where the plaintiff sued in respect of the infringement of his trade-mark, and died pending the action, it was held that the cause of action involved damage to the plaintiff's property, and consequently his personal representa- tives could continue the action (r). So also, as has been previously noticed, there is a further exception to the maxim in the case of injuries committed by a deceased person to any property, whether real or personal (s). {n) Wharton's Law Lexicon, 235. (0) 17 & 18 Vict. c. 125. (p) Sect. 78 ; see also post. Part iii. chap. i. (q) 4 Edward 3, c. 7 ; 25 Edward 3, st. 5, c. 5 ; see other exceptions to the maxim, ante, p. 323, and post, p. 418. See also as to the maxim, ante, pp. 5, 6. (?•) Oakey v. Dalton, 35 Ch. D. 700 ; 56 L. J. Ch. 823 ; 57 L. T. 18. (s) 3 & 4 Wm. 4, c. 42, s. 2, ante, p. 323. 356 OF TORTS AFFECTING THE PERSON. CHAPTER IV. OF TORTS AFFECTING THE PERSON (a). Torts to the person are more impor- tant than torts to propertj'. I. Assault and batter}-. Definition of an assault. We have iu the two preceding chapters considered the subject of Torts to Property ; in this and the next chapter we proceed to the subject of Torts to the Person, which may be said to be still more important than torts affecting property, because every one does not possess property for a tort to be committed in respect of, but these torts affecting the person may equally be committed on any one. The different torts affecting the person are numerous, and those which may most usefully be considered appear to be the following : — 1. Assault and battery. 2. False imprisonment and malicious arrest. 3. Malicious prosecution. 4. Libel and slander ; and 5. Seduction and loss of services. Assault and battery are always classed together because they are acts closely connected, and, in fact, depending on each other; for though an act may be an assault without amounting to a battery, yet a battery must comprise an assault, and so it is most usual to find an assault and battery taking place simultaneously. An assault may be defined as the (a) Some of the torts ranged under this head in the present chapter and the one next following, are sometimes styled Torts affecting the Reputation ; but it does not appear necessary to introduce this further division in a work like the present, as torts particularly affecting the reputation necessarily more or less affect the person, for the reputation appertains to the person. OF TORTS AFFECTING THE PERSON. 357 unlawful laying of hands on another person, or an attempt or offer to do a corporal hurt to another, coupled with a present ability and intention to do the act (b). A battery may be defined as the actual Definition of striking of another person, or touching him in a rude, '' '^ ^^^' angry, revengeful, or insolent manner (c). We will now proceed to notice the essentials to constitute an assault, and some instances of assaults ; and then the essentials to constitute a battery, and the distinction between the two torts, and their combination. To constitute an assault by a mere attempting or What acts will „ . , . . 1 • ji 1 n -i- J.1 J. ^iG suflBcient offermg to do an act, it is stated in the dennition tnat to constitute there must be a present ability and intention to do the ^^ assault, act attempted or offered to be done. This means that it is not sufficient for a person to offer to do the act, unless he apparently is both able to and intends to do it. Thus, " holding up a fist in a threatening attitude sufficiently near to be able to strike ; presenting a gun or pistol, whether loaded or unloaded, in a hostile and threatening manner, within gun-shot or pistol-shot range, and near enough to create terror and alarm ; riding after a man with a whip, threatening to beat him, or shaking a fist in a man's face," are all acts of assault (d), for the person in all these cases has the apparent power of doing the act he threatens to do, and the intention of doing it. But if, in the foregoing instances, though the person threatens the act, yet he has not the then present apparent ability to perform what he threatens, e.g. if, holding up his fist, he is yet not near enough to strike, or presenting a gun or pistol, is out of gun-shot or pistol-shot range, here no assault is committed. Again, in any of these instances, even although the person has the ability to do the act he threatens to do, yet, if he shews from his words or conduct that he does not mean to do it, e.g. if he says (6) See Brown's Law Diet. 48 ; Jiead v. C'oker, 13 C. B. 860. (c) Ibid. 49. {(l) Addison on Torts, 137. 358 OF TORTS AFFECTING THE PERSON. were it not for some event he would strike or would shoot, here no assault is committed (e). An assault The definition of assault also shews that a tort mfued by a may be committed by a mere touching or laying on mere touching, q£ hands, and this is so however slight may be the however ' i T t i slight. touching, for " the law cannot draw the hue between different degrees of violence, and therefore totally prohibits the lowest stage of it, every man's person being sacred, and no other having the right to meddle with it in any, even the slightest manner " (/). There are, however, some few acts, consisting in the touching of another person, which from their very nature are not assaults, e.g. if one has to push through a crowd, he has of necessity to touch others ; but unless he does it with roughness or violence, tliis is no tort, but an act which he is justified in doing {g). Except iu a few cases. Instances of Jq the forcgoiug remarks some instances of assault be assaults'.' have already been given. The following acts have also been held to be assaults, and furnish apt in- stances : — The riding after a person and obliging him to run away into a garden to avoid being beaten Qi). The forcing a person to leave premises by threats of violence if he did not do so {i). Where two persons were fighting-, and one of them accidentally struck a third person (/.•). This, of course, proceeds upon the principle that the person was doing an unlawful act in fighting. Had he not been doing (c) Addison on Torts, 137, 13S. (/)2 Bl. Com. 120. [g) Addison on Torts, 138. (A) Martin v. Shoppee, 3 C. & P. 373. (i) Read v. Coker, 22 L. J. (C. P.) 201. (k) James v. Campbell, 5 C. & P. 372. OF TORTS AFFECTING THE PERSON. 359 SO, then he would not have been liable for what was a pure accident ; so that where a person threw a stick which accidentally hit another, it was held that it was fair to presume that the stick was thrown for a proper purpose, and therefore that defendant was not liable (/). The cutting off of the hair of a pauper in the work- house by force and against his will (m). The unlawful restraining the liberty of a person (11). A person cannot be guilty of an assault by acting in An assault 1 . ^1 j_ 1 T cannot be a merely passive manner ; so that where a policeman committed obstructed persons from entering a room, it was held ^^ a merely ■T o » passive act, or that this was no assault by him (0). A person also is in some cases in some cases precluded from complaining of an assault sented to. where he has consented to the act complained of (p). The definition of a battery (q) shews that the striking Assaults not ^ 1 ■ i_ 1 • '^ 1 n ^ amounting to or touching must be m a rude, angry, revengiul, or battery. insolent manner to constitute it a battery. If, there- fore, the touching is not in this way, it will only amount to an assault. The distinction, therefore, between the two acts of Distinction assault and battery may be said to be, that the assault assault and is a lesser offence than the other, that there may be ^ ^'"^t^^^y- an assault without a battery by simply touching the person of another without any violence, or by a threat- ening without the carrying out of the threat ; but that in every battery there must have been an assault pre- ceding it, and therefore in cases of battery there is a {!) Alderson v. Waistell, i C. & K. 358 ; see also as to the principle stated in the above paragraph, aiite, pp. 351, 352. (m) Forse v. Skinner, 4 C. & P. 239. (m) Hunter v. Johnson, 13 Q. B. D. 225 ; 53 L. J. M. C. 182 ; 51 L. T. 791 ; 32 W. R. 857 ; Bird v. Jones, 7 Q. B. 742 ; 15 L. J. Q. B. 82. (0) Jones V. Wylie, i C. & K. 257. (p) Latter v. Braddell, 50 L. J. Q. B. 448 ; 29 W. R. 366 ; 44 L. T, 369- (7) Ante, p. 357. 360 OF TORTS AFFECTING THE PERSON. combination of the two torts, which are rightly de- scribed together as assault and battery. Definitiou of Assault and battery may sometimes be of such an what^^iV^"' aggravated kind as to amount to an actual wounding and will not ^f ^^le person, or to constitute the offence called may- amount to it. ^ ' _ '' hem. Mayhem (or maihem) has been described as " the violently depriving another of the use of such of his members as may render him the less able in fighting to defend himself or to annoy his adversary, e.g. the cutting off, or disabling, or weakening a man's hand or finger, striking out his eye or fore-tooth, or depriving him of those parts the loss of which in all animals abates their courage " (r). But the doing of an injury that only detracts from a person's appearance is not considered as mayhem, but only as wounding, because it does not weaken, but only disfigures him. An action may Notwithstanding that an assault or battery may here7"/an have been committed abroad, out of the jurisdiction mTtted abroad °^ ^^^® Court, yet the party injured has his remedy Mostynv. here if the assaulter comes to this country (s) ; thus, in the case of Mostyn v. Fabrigas, cited below, it was held that an action might be maintained against the Governor of Minorca for an injury to the person of the plaintiff committed there. And although, in the case of a tort committed abroad, it happens that it could not, according to the law of the country where committed, be sued upon there until after certain penal proceedings had been taken in respect of it, yet, as that only goes to the procedure, it does not at all affect the remedy here {t). But where an action was brought against the Governor of Jamaica for assault and false imprisonment there, it was held (r) Brown's Law Diet. 327. (s) Mostyn v. Fabriyas, i S. L. C. 628 ; Cowp. 161 ; Order xi. rule i. An action cannot be maintained here in respect of trespass to land abroad. See ante, p. 321, and case of British South Africa Co. v. CompanJiia di Mozambique, there quoted. (<) Scott V. Lord Seymour, i H. & C. 219. Fabrigas. OF TORTS AFFECTING THK PERSON. 36 1 that an Act of Indemnity, retrospective in its nature, passed by the Legislature of the island and assented to by the Crown, for acts done in good faith after a proclamation of martial law in the suppression of a rebellion, prevented any action being maintained here (u). There are, however, many cases in which, though Assault aud an assault and battery may have been committed, yet sometimTs^be such acts may, under the circumstances, be justifiable, J«'*tifiaWe. and such cases of justification may chiefly be ranged under two heads, viz. (i) Where done in defence of person or property ; and (2) Where allowed by reason of the defendant's peculinr position. Now, as to defence, this is a justification of a very justifiable in defence lierson. extended nature, for not only is a person justified in ^ ^"*'® ^ striking another in his own defence, but also in defence of husband, wife, child, relative, or even neighbour or friend (x) ; and as these last terms are very wide, it seems almost, if not entirely, correct to say that a person is justified in assaulting another in defence either of himself or others. But the nature of the But the assault and battery done in defence must be carefully J^ot be more observed, for some extreme act of defence, being more ^'''^" is neces- ' . s^i'y under the than was necessary from the nature of the assault it circumstances. was done in defence of, is not justifiable, e.r/. if one attempts to hit another, that other is perfectly justified in warding off the blow, or in striking a blow of the same nature in defence, but he is not justified in using some offensive weapon, and materially injuring the person, as by striking with a sword or knife (y). In every case in which justification on this ground is set up as a defence, the original act to prevent which it was necessary to resort to defence must be looked to. (u) Phillips V. Eyre, L. R. 6 Q. B. 21 ; 40 L. J. Q. B. 28 ; 22 L. T. 869. (a;) Addison on Torts, 143. (y) See Cockcroft v. Smith, 11 Mod. 43, quoted in Addison on Torts, 140. 362 OF TORTS AFFECTING THE PERSON. and a person is not justified in going beyond mere defence, and avenging himself, as by not being content with warding off a blow, but following it up by fresh Son assault and Unnecessary blows. Where a justification for an demesne. assault and battery is set up on the ground of defence to the person, such defence is called a plea of son assault demesne {z). Justifiable uiso Assault and battery, also, in defence of one's property, protertT"^ whether real or personal, is perfectly justifiable (a) ; for if a person attempts to dispossess another of his goods, that other is fully justified in using means to prevent him doing so, and laying hands on him for that purpose. And so, also, if the attempt is to dis- possess another of his land, that other is justified in committing an assault and battery for preventing the attainment of that object. If, however, a person peaceably enters on another's land, the owner is not justified in forthwith assaulting him for the pur- pose of ejecting him therefrom, but he must first request him to go, and then, if he will not do so, proceed to eject him, using only as much force as is necessary (&). But here And here, again, must be noticed — as in cases of «ft^"e gm'i'ter defence of the person— that the act in defence of one's thannecessary. p^-Qperty must not be of an excessive character, for if it is more than is necessary under the circumstances, then it is not justifiable, nor is it justifiable to do an act in defence of property which may manifestly tend Setting man- to injure the other party (c). And particularly it is traps, &c. pi-ovided by statute {d) that any person causing to be set, or knowingly suffering to be set, upon his lands any spring-gun, man-trap, or other engine calculated (z) Brown's Law Diet. 496. (a) 3 Bl. Com. 120; Addison on Torts. 140, 141. \h) Polhinhorn v. Wruiht. 8 Q. B. 197 ; Per Parke, B., Harvey v. Brychjes, 14 M. & W. 442. (c) Collins V. Renison, Say. 138. (rf) 24 & 25 Vict. c. 100, s 31, re-enacting 7 & 8 Geo. 4, c. 18. OF TORTS AFFECTING THE PERSON. 363 to destroy life, with the intent of destroying or doing grievous bodily harm to trespassers, shall be guilty of a misdemeanour. Now, as to the assault and battery being justifi- JustiBabie on , ,. -J.- rri account of a able by reason of a persons peculiar position, iliere person's pecu- are many cases in which the law gives a direct power ^'*^' position. of laying hands on the person of another and assaulting him, and a primary instance of this may be seen in the chastisement sometimes awarded to offenders by flogging. And, irrespective of any sentence of the law, a person, by the relationship in which he stands towards another, may have a justification for assault and battery committed on that person, e.g. a father E.g. a father naturally has a right to reasonably chastise his ^\is cMW. children, and so also has a master his apprentices, and a schoolmaster his scholars, but the chastisement must not be excessive (e). A master or captain of a ship has also a right by virtue of his position to imprison or reasonably chastise any of the sailors who behave in a mutinous or disorderly manner, or refuse or neglect to obey his lawful and proper orders, but any chastisement must be reasonable (/) ; and a constable, a churchwarden, a beadle, or other person employed in that capacity in a place of worship, is justified in laying hands on, and forcibly removing from that place, any person who by his conduct is disturbing the congregation {g). It necessarily appears that in actions for assault and Malice is not battery it is not at all essential that malice should "n assault exist. Malice may, of course, be shewn, and may ^"'^ battery, operate to inflame the injury done, and increase the amount of the damages ; but a wanton, or thoughtless, (e) See hereon Winterbum v. Brooks, 2 C. & K. 16 ; Clearyv. Booth, (1893), I Q. B. 465 ; 62 L. J. M. C. 87 ; 68 L. T. 349. (/■) Brou'/liton v. Jackson, 21 L. J. (Q. B.) 265 ; Nudcn v. Johnson, 20 L. J. (Q.' B.) 95. {r/) Burton v. Henson, lo M. & W. 105 ; Williams v. Glcnister, z B. & C. 699. 564 OF TOKTS AFFECTING THE PEKSON. An assault aud battery may be committed indirectly. Remedies iu respect of assault and battery. or negligent act, without the slightest malicious intent, may equally constitute an assault and battery. Assault and battery may also be committed indirectly as well as directly ; thus, where the defendant threw a lighted squib which fell on a stall on the street, and the keeper of the stall for his own protection threw it oft", and it then exploded and injured the plaintiff, it was held that the defendant, the original thrower, was liable, for a person is liable for the natural and probable consequences of his own act (h). A person is liable for an assault committed by his agent or servant by his authority express or implied, for qui facit per alium facit per se ; but he is not liable if he has not authorized the act, and it was outside the scope of the servant's duties. Thus, where a person employed to levy a distress committed an assault in doing so, it was held that the employer was not liable, the assault not being directed or authorized, and it not being within the scope of the main authority to commit an assault {i). A person may proceed either civilly or criminally in respect of an assault, and the period of limitation for bringing any action in respect of such a tort is four years {k). It has already been noticed, however, in considering the subject of torts generally, that sentence will not be passed in a prosecution for an assault if an action for the same assault is also pending ; that if a conviction on summary proceed- ings takes place, that bars further civil proceedings ; and that if a magistrate dismisses a charge of assault, his certificate of dismissal will operate to bar any further proceedings, civil or criminal, in respect of it (/). (h) Scott V. Sheppard, i S. L. C. 480 ; 2 Blackstone, 892. (i) Richards v. West Middlesex Waterworks Co., 15 Q. B. D. 660; 54 L. J. Q. B. 551 ; 33 W. R. 902. {k) 21 Jac. I, c. 16, s. 3. (I) Ante, p. 314. OF TORTS AFFECTING THE PERSON. 365 If a man assaults his wife, she has no right of A wife cannot , . , \ 1 ^ ^ • J. i. sue her hus- action against him (m), her remedy being to prosecute band in respect him, or to apply for him to be bound over to keep ^Ji^tlTto he\- the peace, or the assault and battery may constitute during cover- cruelty sufficient to enable her to obtain a separation order from a Court of Summary Jurisdiction (71), or to found proceedin f e^^^^'''*' which enacts that, with the exceptions thereinafter mentioned, no person shall after the commencement of the Act (s) be imprisoned for making default in payment of a sum of money (t). The exceptions are as follows : — 1 . Default in payment of a penalty, or sum in the Six cases of nature of a penalty, other than a penalty in respect of ^^q^I ^^'^®^" any contract. 2. Default in payment of any sum recoverable summarily before a justice or justices of the peace. 3. Default by a trustee or person acting in a fiduciary capacity {ii), and ordered to pay by a Court of Equity any sum in his possession or under his control (x). {p) Brodribh v. Brodribb, 11 P. D. 66; 55 L. J. P. 47 ; 34 W. R. 580. (q) See the title of 32 & 33 Vict, c 62, " An Act for the Abolition of Imprisonment for Debt," &c. (r) 32 & 33 Vict. c. 62. (s) 1st January 1870. (t) 32 & 33 Vict. c. 62, s. 4. (m) As to who is a trustee or a person acting in a fiduciary capacity, see Harris v. Ingram, 13 Ch. D. 33S ; 49 L. J. Ch. 123 ; 28 W. K. 434 ; In re Diamond Fuel Co., Metcalf's Case, 13 Ch. D. 815 ; 49 L. J. Ch. 347 ; 28 W. R. 4S5 ; Crowther v. Elgood, 34 Ch. D. 691 ; 56 L. J. Ch. 416 ; 56 L. T. 415 ; 35 W. R. 369, in which case an auctioneer neglect- ing to pay over the proceeds of a sale was held to be in such a capacity and liable to imprisonment. (x) See Re Walker, Walker v. Walker, 59 L. J. Ch, 386 ; 62 L. T. 449. 372 OF TOETS AFFECTING THE PERSON. 4. Default by a solicitor in payment of costs when ordered to pay costs for misconduct as such, or in pay- ment of a sum of money when ordered to pay the same in his character of an officer of the Court making the order (3/). 5. Default in payment for the benefit of creditors of any portion of a salary or other income in respect of the payment of which any Court having jurisdiction in bankruptcy is authorized to make an order. 6. Default in payment of sums in respect of the payment of which orders are in this Act authorized to The imprison- be made (z). It is provided, however, that in all or ™e7or'b"j''oVd any of these excepted cases no person shall be im- one year. prisoned for a louger time than one year, and nothing in the section is to alter the effect of any judgment or order of any Court for payment of money, except as regards the arrest and imprisonment of the person making default in paying such money (a). 41 & 42 Vict. With regard, however, to the exceptions numbered '^' ■^'*' 3 and 4, it is now provided by the Debtors Act, 1878, that the Court or judge may inquire into the circum- stances of the case, and is to have a discretionary power as to imprisoning (?>). It hns been held that under this provision the Court will not necessarily refuse to grant an application for a writ of attachment against a defaulting trustee, where, owing to the de- faulter being wholly without means, no useful object would be gained thereby, for the imprisonment is {y) See hereon In re Strong, 32 Ch. D. 342 ; 55 L. J. Ch. 553 ; 34 W. R. 614; 55 L. T. 3. (z) 32 & S3 Vict. c. 62, s. 4. (a) However, a person who makes default in payment of a sum of money whicli he has been ordered by the Court to pay cannot be attached for contempt, but must be proceeded against under sect. 5, as to which see post, p. 373 (Esdaile v. Visser, 13 Ch. D. 421 ; 28 W. R 281 ; 41 L- T. 745)- (6) 41 & 42 Vict. c. 54. OF TORTS AFFECTING THE PERSON. 373 to a certain extent meant as a penalty and to deter others (c). But where a trustee, though he has been guilty of negligence, has not been guilty of any criminal or fraudulent act, nor of any contumacious refusal to comply with the Court's order, the Court will not attach him (d). In addition to the foregoing cases, the Debtors Act, Aii?o power to 1869, also provides that any person (e) making default prison for six in payment of any debt, or instalment of any debt, due ^/^^^^^g/'™"* from him in pursuance of any order or judgment, may be committed to prison for a term not exceeding six weeks, on its being proved that he has, or has had since the date of the order or judgment, the means to pay the sum in respect of which he has made default, and has refused or neglected, or refuses or neglects, to pay the same (/). The application to commit to prison Judgment , ,, . ... IT n J summonses under this provision is made by a summons called a ^ow bank- judgment summons, and such an application is now '■"pt^y busi- bankruptcy business, and must, irrespective of the amount of the judgment, be made to the County Court within the jurisdiction of which the judgment debtor is or resides, unless the judgment creditor first applies for and obtains an order of the bankruptcy judge of the High Court, or unless the amount remaining due on the judgment exceeds ^50, and the judgment debtor resides or carries ou business within the London Bankruptcy District, when the same may be issued in the High Court (g). A judgment summons must in a (c) Marris v. Ingram, 13 Ch. D. 338 ; 49 L. J. Ch. 123 ; 28 W. R. 434 ; Re Gent, Gent- Davis v. Harris, 40 Ch. D. 190 ; 58 L, J. Ch. 162 ; 60 L. T. 355 ; In re Knowlcs, Doodson v. Turner, 52 L, J. Ch. 685 ; 48 L. T. 760. {d) Earl of Aylesford v. Earl Poulett, {1S92), 2 Ch. 60 ; 61 L. J. Ch. 406 ; 66 L. T. 484. (e) This does not apply to a married woman against whom judgment has been signed for a debt contracted during coverture {Scott v. Morley, 20 Q. B. D. 120 ; 57 L. J. Q. B. 43 ; 57 L. T. 919 ; 36 W. R. 67). (/) 32 & 33 Vict. c. 62, s. 5. Ig) 46 & 47 Vict. c. 52, s. 103 ; Bankruptcy Rules, 18S6 and 1S90, Rules 355, 356. 374 OF TOETS AFFECTING THE PERSON. County Court be heard in open court before the judge or his deputy (Ji). Conditional No Conditional order for committal to prison at a committal not future day can be made under any circumstances; good. jjQ^ even by consent. Every committal order must be absolute and present in its terms, but the issue of the order may be restrained for a certain time for the purpose of giving a locus pcenitcnticc to the default- Power to make ing party (i). It is now provided by the Bankruptcy orderTiftead Act, 1 883 (k), that ou an application made under a of committal -judfTment summons to a Court havinsf bankruptcy Older. Jo 1 . , /. 1 T jurisdiction, the Court may, if it thinks fit, decliue to commit, and in lieu thereof, with the consent of the judgment creditor, on payment of the prescribed fee, at once make a receiving order against the debtor (l) ; • and if the Court has not got bankruptcy jurisdiction, it may transfer the matter to the Court having bank- ruptcy jurisdiction as regards the particular debtor (m). "When a defen- The Dcbtois Act, 1 869, also contaius an enactment action may be as to the arrcst of a defendant, a matter totally dis- tinct and apart from imprisonment for debt, it being provided (n) that where the plaintiff in any action in any of Her Majesty's superior courts of law proves at any time before final judgment, by evidence on oath to the satisfaction of a judge of one of those courts, that ( I ) the plaintiff has good cause of action against the defendant to the amount of ;^50 or upwards ; (2) that there is probable cause for believing that the defendant is about to quit England unless he is appre- hended ; and (3) that the absence of the defendant (h) 32 & 33 Vict. c. 62, s. 5. As to the powers of the County Court as regards a judgment of the High Court, see L'x parte Addin'jton, In re Ives, 16 Q. B. I). 665 ; 55 L. J. Q. B. 246 ; 54 L. T. S77 ; 34 W. R. 593- (i) Stonor v. Foide, 13 App. Cas. 20 ; 57 L. J. Q. B. 387 ; 5S L. T. i. (k) 46 k 47 Vict. c. 52. (I) Sect. 103. (m) Bankruptcy Rule.', 355-362. {«) 32 «& 33 Vict. c. 62, s. 6 arrested. OF TORTS AFFECTING THE PERSON. 375 from England will materially prejudice the plaintiff in the prosecution of his action (o), the judge may order such defendant to be arrested and imprisoned for a period not exceeding six months, unless and until he has sooner given the prescribed security, not exceeding the amount claimed in the action, that he will not go out of England without the leave of the Court. "Where the action is for a penalty, or sum in the nature of a penalty, other than a penalty in respect of any con- tract, it is not, however, necessary to prove that the absence of the defendant from England will materially prejudice the plaintiff in the prosecution of his action, and the security given (instead of being that the de- fendant will not go out of England) is to be to the effect that any sum recovered against the defendant in the action shall be paid, or that the defendant shall be rendered to prison. Under the above provision, although a debtor may be committed to prison for a fixed period, lie cannot be detained in prison after final judgment has been signed {p). If a person obtains an order for arrest under the iMaiicious foregoing provision by any false statement or wrongful '"'^'^^*- suppression of facts, he may, in addition to the false imprisonment, be liable to an action for malicious arrest. Malicious arrest may be described or defined as a tortious act consisting in the malicious {q) arrest of another without reasonable or probable cause. It will be noticed that the provision as to the arrest Distinction of a defendant is quite distinct and different from the andlmj™* foregoing provisions as to imprisonment for debt; in "i^"^*- the latter there is a judgment or order for payment, and the object of the imprisonment is to get satis- faction of it ; in the former there is no debt as yet (o) 'J'his being a matter very difficult to prove, orders for the arrest of a defendant under this section are not at all frequently granted. (p) Hume V. Druyff, L. R. 8 Ex. 214 ; 42 L. J. Ex. 145. (q) Using the word "malicious" in the sense ascribed to malice in law, post, p. 378. 376 OF TORTS AFFECTING THE PERSON. III. Malicious prosecution. adjudged by the Court to be due, and the object is to prevent the defendant from leaving the country. The student should carefully remember this distinction, as it is important (r). Malicious prosecution may be defined as a tortious act consisting in the unjust and malicious prosecution of one for a crime, or the unjust and malicious making one a bankrupt, without any reasonable or probable cause. Three esseu- tials in an action for malicious prosecution. There are three essentials necessary to entitle a person to maintain an action for malicious prosecution, viz. : (i.) That the prosecution was determined in the plaintiff's favour if from its nature it was capable of being so determined (s). (2.) The absence of any rea- sonable and probable cause for the prosecution (t). (3.) Malice on the part of the defendant. A person cannot sue for malicious prosecution if there is a conviction on it standing against him. Tiie first essential, viz. that the prosecution was determined in the plaintiff 's favour if it was capable of being so determined, scarcely calls for any com- ment. From it will be seen that if a person has been actually convicted, or has been actually adjudicated a bankrupt, he cannot maintain this action whilst the conviction or adjudication stands against him, for that furnishes at once irrebuttable evidence of reasonable and probable cause. To entitle a person, therefore, in such a case, to maintain his action, he must shew that the conviction or adjudication has been reversed or superseded (u). (r) Since the Judicature Acts, 1873 ^° 49 ^- J- Ex. 120; 41 L. T. 7S2). 388 OF TORTS AFFECTING THE PERSON. it has been held that a fair and accurate report of the judgment in an action, published bond fide and without malice, is privileged, although not accompanied by any report of the evidence given at the trial {t). It was formerly held that a report of proceedings at a meeting of poor-law guardians, affecting an individual, could not be considered to be privileged {u) ; but with regard to this and certain other reports, it has now been provided Libel Act, by the Libel Act, 1888 {x), that a fair and accurate '^^^" report published in any newspaper of the proceedings of a public meeting (ij), or (except where neither the public nor any newspaper reporter is admitted) of any meeting of a vestry, town council, school board, board of guardians, board of local authority, and some other bodies mentioned in the Act, and the publication at the request of a Government ofhce or department, officer of state, commissioner of police, or chief con- stable, of any notice or report issued by them for information of the public, shall be privileged, unless published or made maliciously. But this enactment is not to protect a person who has refused or neglected to insert, on request, in the newspaper in which the report or other publication appeared, a reasonable letter or statement explaining the same, and it is not to protect the publication of any matter not of public concern, and the publication of which is not for the public benefit {z). (t) Macdougall v. Knight, 17 Q. B. D. 636 ; 55 L. J. Q. B. 464; 34 \V. R. 727 ; 55 L. T. 274. Tiiis case afterwards went to the House of Lords' (14 App. Cas. 194 ; 58 L. J. Q. B. 537 ; 60 L. T. 762), and was affirmed, but on different grounds, and Lord Halsbury certainly ex- pressed his view to be different from that of the Court of Appeal. The matter was, however, in 1890 further considered by the Court of Appeal in a second case of Macdoiigall v. Knight (25 Q. B. D. I ; 59 L. J. Q. B. 517 ; 63 L. T. 43), and they again distinctly laid down the law to be as stated in the text above. (u) Piircdl V. Sowlcr, 2 C. P. D. 215 ; 46 L. J. C. P. 3C8. (x) 51 & 52 Vict. c. 64, s. 4. The previous provision contained in 44 & 45 Vict. c. 60, s. 2, is repealed by this Act (s. 2). (y) The Act defines a public meeting to mean any meeting bond fide and lawfully held for a lawful purpose, and for the furtherance or dis- cussion of any matter of public concern, whether the admission be general or restricted (s. 4). (z) See Kelly v, Malky, 6 Times L. R. 62. OF TORTS AFFECTING THE PKRSOX. 389 Judges, magistrates, and others acting in a judicial statements capacity («) are not liable for defamatory publications adv^caS i^c. made by them in the exercise of their judicial functions, even though they may have acted maliciously and contrary to good faith and honesty (b) ; and any state- ■ ment made by an advocate in the course of his advo- cacy is also absolutely privileged, and this although uttered by the advocate maliciously and not with tlie object of supporting the case of his client, and even though uttered without any justification or excuse, and from personal ill-will or anger towards the person defamed, arising out of a previously existing cause, and even although irrelevant to every issue of fact which is contested before the tribunal (c). The statements of a witness in a Court of Justice statements i.y /. 1 TT c T ^ witnesses. or before a select committee of the House of Lords or House of Commons are absolutely privileged (cl), and this even although the witness goes somewhat beyond what he was asked (c). And with regard to what will be a Court so as to render a witness not liable for his statements, it may be noticed that it has been decided that a court of inquiry instituted by the Commander- in-chief of the army, under the Articles of War, to inquire into a complaint made by an officer of the army, is such a court, and therefore that statements, whether oral or written, made by an officer summoned to attend before such court, are absolutely privileged (/). In many cases of what are alleged to be privileged (a) Royal Aquarium v. Parkinson, (1892), i Q. B. 431 ; 61 L. J. Q. B. 409; 66 L. T. 513. (b) Anderso7i v. Gorrie, (1895), I Q. B. 668 ; 71 L. T. 382. (c) Munstcr v. Lamb, 1 1 Q. B. U. 588 ; 52 L. J. Q. B. 726 ; 32 W. R. 248. (d) Goffin V. Donelly, 6 Q. B. D. 307 ; 50 L. J. Q B. 303 ; 29 W. R. 440. (e) Seaman v. Netherdif, 2 C. P. D. 53 ; 46 L. J. C. P. 128. (/) Daiokins v. Lord Rokeby, L. R. 7 H. L. 744 ; 42 L. J. Q. B._8. It has also been held tliat reports made by a military officer for the in- formation of the Commander-in-chief are ab-iolutely privileged {Dawkins V. Lord Paulct, L. R. 5 Q. B. 94 ; 39 L. J. Q. B. 53). 390 OF TOETS AFFECTING THE PERSON. The judge decides whether a particuhir matter is privileged. communications on the ground of moral or social duty, it is often a difficult matter to decide whether or not there is shewn to have existed such a duty as to render the communication privileged ; in all such cases it is for the judge to decide whether the principle can be applied to the particular case {g). JIany cases that would prima, facie appear to be privileged may yet on particular facts not be. Distinction between qualified and absolute privilege. In many cases of alleged privileged communica- tions, however, it is open to the plaintiff to shew that, notwithstanding that the communication would ordinarily be privileged, yet the defendant has been guilty of actual malice, i.e., malice in fact (A). Thus, it has been pointed out (^) that a master is privileged in giving a character to his servant; but yet, if he knowingly gives a false character, here there is actual malice, and there cannot possibly be any privilege. Cases of this character are designated as cases of qualified privilege, as opposed to cases in which no such evidence could be given, which are styled cases of absolute privilege, e.g. statements by judges and advocates in the course of their duties. The truth of libel affords a complete answer in a civil action. Effect of the truth of a libel iu a The truth of a libellous imputation affords a com- plete answer to any action for damages, because the action is brought by the plaintiff to free his character from such imputation, which he cannot be entitled to do if the imputation is actually true (Z) ; and where the truth of the imputation is not thoroughly and strictly proved, but it is proved substantially or to a great extent, this, though not sufficient to form a defence, may go in mitigation of damages (/). Libel is, how- ever, punishable, not only civilly, but also criminally {g) Per Erie, C.J., in Whiteley v. Adams, 15 C. B. (X. S.) 41S ; Waller V. Lock, 7 Q. B. D. 619 ; 30 W. R. 18 ; 45 L. T. 242 ; Harrison V. Eraser, 29 W. R. 652. (A) Wright v. Woodgate, 2 C. M. & R. 573. As to malice in fact, see ante, p. 378. (i) Ante, p. 3S6. (k) Folkard on Slander and Libel, 21, 22. (0 Chcdmcrs v. ^hacLcll, 6 C. & P. 475. OF TOUTS AFFECTIXG THE TERSON. 39 1 by indictment, and in some special cases, wliere tlic criminui persons libelled are in some public office or position, fJi'ir"*^'"" by criminal information (m). In any criminal prose- cution the truth of the libel was formerly no defence, for the object of the proceeding is to a great extent the preservation of public peace and good order, which cannot be maintained if one man is allowed to publish of another everything that may chance to be true of that person, so that, whether true or false, the imputa- tion may have equally mischievous results, and con- sequently be equally a public wrong (n). This state of the law is, however, now to a considerable extent altered, it having been provided that the truth of a libel shall form a defence to a criminal prosecution, Libel Act, if it is also for the public benefit that the matters complained of should be published (0). With regard to criminal proceedings in respect of a Order of jutlge libel, it is provided by the Libel Act, 1888 (^j), that beforrpfo- no criminal prosecution shall be commenced against if^Y'"^**''' any proprietor, publisher, editor, or any person respon- newspaper, sible for the publication of a newspaper, for any libel published therein, without the order of a judge at chambers first being obtained, on notice to the person accused, M-ho shall have an opportunity of being heard against it. This provision, however, does not apply to a proceeding by way of criminal information (q). The Libel Act, 1843 (?•), also contains two impor- (m) See He;/, v. Labouchere, 12 Q. B. D. 320 ; 53 L. J. Q. B. 362 ; 32 W. R. 861. (n) See Folkard on Slander and Libel, 21, 22. (0) 6 & 7 Vict. c. 96, s. 6. See hereon Reg. v. Labouchere, 14 Cox, C. C. 419. (p) 51 & 52 Vict. c. 64, s. 8, which repeals the previous provision of 44 & 45 Vict. c. 60, s. 3, which required the fiat of the director of public prosecutions. (5) Her/. V. Yates, 14 Q. B. D. 648 ; 54 L. J. Q. B. 258 ; 33 W. R. 482 ; 52 L. T. 305. This was a decision under 44 & ^5 Vict. c. 60, s. 3, but it no doubt still holds good as regards the provision of 51 &, 52 Vict. c. 64, s. 8. (r) 6 & 7 Vict. c. 96. 392 OF TOKTS AFFECTING THE FEKSON. Trovision of taiit provisions on the subject of libel, besides the 1843, as^t'o o^^6 ah-eady mentioned as to the truth of a libel =*''"^"sy g"'e- ijeing set up in criminal proceedings in respect of it. The first of such provisious is, that in any action for defamation it shall be lawful for the defendant (after notice in writing of his intention so to do duly given to the plaintiff at the time of filing or delivering the defence in such action) to give in evidence, in mitigation of damages, that he made or offered an apology to the plaintiff for such defamation before the commencement of the action, or so soon afterwards as he had an opportunity of doing so, in case the action shall have been commenced before there M-as an oppor- tunity of making or offering such apology (s). Trovision of The Other of such provisious is, tliat in an action Libel Act, ri-ii ^-t- it i 1843, as to for libel contained in any public newspaper or other i.'ubiic'iiews- periodical publication, it shall be competent for the vnpur, &o. defendant to plead that such libal was inserted therein without actual malice and without gross negligence, and that before the commencement of the action, or at the earliest opportunity afterwards, he has inserted in such newspaper or other periodical publication a full apology for the said libel, or, if such newspaper or other periodical publication shall be ordinarily pub- lished at intervals exceeding one week, that he has offered to publish the said apology in any newspaper or other periodical publication to be selected by the plaintiff in such action ; and that every such defen- dant shall upon filing such plea be at liberty to pay into court a sum of money by way of amends for the injury sustained by the publication of such libel (t). (s) Sect. I. The statement above, and the notice required, must not be confused by the student with the seven days' notice that is required to be given under Order xxxvi. rule 37, to entitle a defen- dant who does not set up the truth of the libel or slander to give in evidence at the trial the circumstances under which the libel or slander was published, or evidence as to the character of the plaintiff. (0 6 & 7 Vict, c 96, s. 2. By 8 & 9 Vict. c. 75, s. 2, it is provided that it shall not be competent for a defendant to plead an apology as stated in the text, without at the same time making a payment of money into court. Ob' TOUTS AI'FKCTINii THP: I-KKSON. 393 This latter provi.-ion is not, however, now of the im- portance it formerly was, as under the Judicature prac- tice money may be paid into court in all actions {u). With regard to actions brought in respect of libels con- Jr(^^j«^"^].« «^ tained in newspapers, a further provision has recently isss, as to been made by the Libel Act, 1888 (.•), it being enacted 'jf.^^fJs^fof that in an action for any such libel the defendant may ij^';!^;;;^^^^^ prove in mitigation of damages that the plaintiff has already recovered, or brought actions for, damages, or has received or agreed to receive compensation in respect of a libel or libels to the same purport or effect as the libel for which such action has been brought. An action of libel may be brought at any time Wctbn for within six years of the publication thereof (y). brought witbiu six j'ears. If a person, to whom a libel is published, in his LiaMity f-r i ' '■ . fresh publiCH- turn publishes it again, he is liable m respect of it, as tiun of libel, well as the original libeller, even though he believed it to be true (z). Slander may be defined as the malicious defamation Definition of sln.IlQ.6F of another person, not in writing, but simply by word of mouth. For ordinary slander, the only remedy of the person slandered is to bring an action for damages, for the injury done to him is not so great as by libel, which, being in writing or the like, is more lasting and permanent in its nature, while slander, being but by word of mouth, is from its very nature fleetino-; but in some exceptional cases of slander, t?.^. Cases in wiiich ° ' , , . . -, . 1 a criminal where the words used are seditious, grossly immoral, prosecution or blasphemous, or addressed to a magistrate with ^iJ^Jg^./'*' reference to his duties or whilst he is performing his (u) Order xxii. rule i. (a;) 51 & 52 Vict. c. 64, s. 6. {y) 21 Jac. I, c. 16, s. 3. (z) UPPherson v. Daniels, lO B. & C. 273 ; Tidman v. A inslic, lO Ex. 63 ; Hotter ill v. Whitehead, 41 L. T. 5S8. 394 OF TORTS AFFECTING THE PERSOX. duties, or uttered as a challenge to fight a duel or to provoke such a challenge, a criminal prosecution will lie (a). Instances of As to what words will be sufficient to enable a person to maintain an action of slander, may be instanced words imputing a crime to any one, as Sfenerallv that he is a thief, or that he has committed a certain wrongful act (h) ; but it is not necessary that the words used should be so extreme as that, and generally speaking any defamatory words causing damage will give rise to the action. On the other hand, there are many cases of words merely spoken which confer no right of action, although had they ■ ■ been written they would have done so (c). Words made use of expressing simply a suspicion (d), or charging another with having evil desires and inclina- tions, but not stating that they have been brought into action, are not actionable (c), but if they go beyond that, and charge another with actually having evil principles, then it seems they are (/). Facts to be The facts to be proved in an action for slander are aXn'^fir'' generally three, viz.: (i) The uttering of the slan- siander. derous words ; (2) The malice of the defendant ; and (3) The damage caused to the plaintiff. What words The first point involves the question of whether or niatoiy. "^ '^ ^oti the words are really defamatory ; and to render them so they must be such that, if not the whole world, at any rate some persons would have taken them in a defamatory sense (g). The question as to (a) See Folkard on Slander and Libel, 794, (b) It is slanderous to call a person a felon who has undergone his seTitence and been discharged, for he is then no longer a felon iu law {Lcyman v. Latimer, 3 Ex. D. 352 ; 47 L. J, Ex. 470; 26 W. R. 305). (c) FA nson v. Sliiart, i T. R. 748. (d) Simmom v. Mitchell, 6 App. Cas. 156 ; 50 L. J. P. C. 1 1 ; 29 W. R. 401. (e) Harrison v. Stratton, 4 Esp. 218. (/) Prince v. Howe, i Bro. P. C. 64, (y) Ante, pp. 38 1 382. OF TORTS AFFECTING THE PERSON. 395 the nieanincr of the words used is, — In what sense did the person uttering them mean them to be under- stood ? Qi). But although words, if they stood by themselves, might be defamatory and actionable, yet it is quite possible that they may be controlled by other words made use of at tlie same time, so as to prevent them having the ordinary usual and primary meaning that they otherwise would have had (/). The malice that is required is only malice in a The malice legal sense, which is implied if the uttering of the on'iy"Kji'ce in defamatory words is proved (A'). ^''•^• We have stated that the third essential of proof Special tlamage n,. i!ii-i.ii ji must be proved in all actions tor slander is the damage caused by in an action the defamatory words ; for, generally speaking, unless ^"^^^'^°'^^'^- the slander has been productive of damage, no action lies, in which respect slander differs from libel ; for in the former we have pointed out that the plaintiff' will at any rate be entitled to a nominal verdict, although he may not give one atom of evidence that the libel has caused him any injury (/). In some few cases Except in four this is also so in slander ; and when so, the words used are said to be words actionable in themselves, and they are as follows : — I. Where a criminal off'ence {iti), or actual conviction r- imputing thereof, is imputed ; and it is not necessary that the offence. crime should be technically described, for any words by which it would ordinarily be understood are suffi- cient ill) ; nor is it necessary to particularly specify any crime; it is sufficient if a person says be has a (A) Read V. Amhridge, 6 C. & P. 308. {i) Shipley V, Todhunter, 7 C. & P. 680. {k) As to malice in fact and malice in law, see ante, p. 37S. (I) Ante, p. 380. (m) It need not be an indictable offence {Webb v. Bevan, 1 1 Q. B. D. 609 ; 52 L. J. Q. B. 544 ; 49 L. T. 201). [n) Coleman v. Godwin, 3 Doug. go. 396 OF TORTS AFFECTING THE PERSON. right to have another punished (o). General terms of abuse, such as rogue, rascal, scoundrel, &c., are not words actionable in themselves, for they do not im- pute any precise and definite offence punishable in the courts of justice (j)). 2. Imputiug an infectious disorder. 2. Where the words used impute to the plaintifi" a contagious or infectious disorder, which may have the effect of excluding him from society {q), e.g. the leprosy or the itch. It is not, however, sufficient to say that a person has at some past time had such a disorder (r). 3. Imputing 3, "Where the words used impute to the plaintiff" incompetence • , • ^ , • ^ • cf 1 ^ in a trade, some incompetence or misconduct m his otnce, trade, inofession, or pj-ofessiou, or Calling, or tend to injure or prejudiciallv employment. -t^ ' '^' ...." affect him therein. Thus, words imputing to a solicitor in any way that he is a knave (s), or that he deserves to be struck off the rolls {t), come within this category. So, also, to say of a doctor that none of the other medical men in the town will meet him is in itself actionable («), and so are w^ords imputing indigent circumstances to a banker {x). To render words actionable in themselves as coming within this class, it matters not how humble the calling or employment of the plaintiff may be ; thus, menial servants have been held entitled to maintain an action for words spoken against them in their employment without any proof of special damage (y). The great criterion to ascertain whether or not words do come within this heading is. Do they directly touch or affect the plaintifi" (0) Francis v. Roose, 3 M. & W. 191 (p) Folkard on Slander and Libel, 139. {q) Ibid. 108, 109; Bloodivorth v. Gray, 7 M. & Or. 334. (r) Carslake v. Maplcdoram, 2 T. R. 473. (s) Day V. Bullar, 3 Wils. 59. (t) Per Kenyon, C.J., Philips v. Jansen, 2 Esp. 624. (m) Southee v. Denny, i Ex. 196. (x) Robinson v. Marchant, 7 Q. B. 91S. {y) Ooniior v. Justice, 13 Ir. C. L. K. 451. OF TOUTS AFKKCTINC THE PEHSOX. 397 in Lis oflice, trade, profession, or calling ? If they do, then they are actionable per se (z). It has been held that words imputing want of integrity, malversation, or dishonesty to a person holding an oflice of confidence or trust, whether an ofiice of profit or not, are actionable without proof of special damage ; but that words im- puting unsuitableness for an office, or want of ability, are not actionable without proof of special damage if the office is merely an honorary one (a). 4. Where words are spoken or published of a woman 4- imputinc , ., 11. 1 mi • • • uncliastity to imputing unchastity or adultery to her. ilns is quite a a woman, recent provision by the Slander of Women Act, i 89 1 (h), for formerly it was otherwise (c) ; and the Act is not retrospective, but only applies to words uttered after its passing ((/). The Act also provides that for words spoken and made actionable by reason of its provisions, a plaintiff shall not recover more costs than damages unless tlie judge shall certify that there was reasonable ground for bringing the action (e). It is only important to prove that words come within one of these ibur classes when special damage cannot be proved ; and, of course, proof of special damage is, when possible, always given for the purpose of increasing the amount of the damages. The truth of slanderous matter will form a perfect The trutii of defence to any action in respect of it, on the like answer to an action for {z) Folkard on Slander and Libel, 126 ; see BlacJ; v. Hunt, Ir. Reps. 2 Q. B. D. 104. (a) Booth V. Arnold, (1895), I Q- I^- 57' ; 64 L. J. Q. B. 443 ; 72 L. T. 310 ; Alexander v. Jenkins, (1892), i Q. B. 797 ; 61 L. J. Ch. 634 ; 66 L. T. 391. (6) 54 & 55 Vict. c. 51. (c) It may, however, be mentioned that callin;^ a woman a whore, or otherwise imputing unchastity to her, was even formerly actionable by itself in the City of London courts ; and so calling a woman a strumpet in the city of Bristol was even formerly actionable there by the custom of that place. See Fisher's C. L. Digest (tit. "Defamation"), (d) August 5, 1 89 1. i^e) 54 & 55 Vict. c. 51, s. 1. 598 OF TORTS AFFECTING THE PERSON. principle that, as has been stated (/), the truth of a libel may be set up as a defence to an action for damages. This point has been extremely well stated {g) as follows : " It is essential to the claim for damages that the imputation should be false ; for, as in point of natural justice and equity, no one can possibly have any claim or title to a false character, so also would it be contrary to the prin- ciples of public policy and convenience to permit a man to make gain of the loss of that reputation which he had forfeited by liis misconduct. In foro conscicnticc, it is no excuse that the slander is true ; but in compassion to men's infirmities, and because if the words spoken are true, the individual of whom they are spoken cannot justly complain of any injury, the law allows the truth of the words to be a justifi- cation in an action for slander." Privileged comniuuica- tions. The remarks that have been made under the head of libel on the subject of privileged communications apply equally to cases of slander (/i). Scandah/m magiiatum. A special and peculiar kind of defamation occurs in what is called scandalum magnatum, of which it is sufficient to say, that it consists in the spreading of false reports against peers and certain high officers of the realm, and that it is subjected to peculiar punish- ments by various ancient statutes (i). Limitation for An actlou for slauder may be brought at any time slander. withiu two years after the uttering of it (A;). Repetition of slander. A person repeating a slander uttered by another renders himself liable in respect of it, and cannot in (/) Ante, p. 390. (r/) Folkard on Slander and Libel, 79, So. (A) See ante, pp. 385-390. (i) See Brown's Law Diet. 475. (k) 21 Jac. I, c. 16, s. 3. As to the construction put upon this pro- vision, see Folkard ou Slander and Libel, 429, 430. OF TOUTS AFFECTING THE TERSON. 399 nny way discharge himself by giving up the name of the author or first utterer of it, for both are liable (/). In an action, however, against the original utterer of the slander, proof of the unauthorized repetition of it by the person to whom uttered is not admissible as proof of special damage (m). Tlie differences between libel and slander have DifFerences ,. T ■ ..-i , f J^ between libel appeared m discussing respectively each of those and siauder. torts, and all that is therefore necessary under this third heading is to summarize those differences. They are as follows : — • 1 . There is the difference in the very nature of the two torts which appears from their respective defini- tions (n). 2. Libel, from its nature, is of a more lasting, and slander of a more fleeting character, so that libel is a tort of a more serious nature than is slander (0). 3. It is not essential to prove special damage in an action of libel (p), but it is in slander, except in the four cases already given (q). 4. Libel is punishable both civilly and criminally, but slander, generally speaking, only civilly (?-). 5. Libel is statute barred after six, but slander after two years (s). {I) M'Pherson v. Daniels, 10 B. & C. 273 ; Tidman v. Ainslie, 10 Ex. 63 ; Botterill v. Whitehead, 41 L. T. 588. (m) Ward v. Weeks, 7 Bing. 21 1. (n) Ante, pp. 380, 393. (o) Ante, p. 393. (p) Ante, pp. 380, 3S1. (q) Ante, pp. 395-397- (r) Ante, p. 393. An injunction may also be granted in some casrs (and even on an interlocutory application) to restrain the publication of a libel. See Indernianr's Manual of Equity, 385, 3S6. (s) Ante, pp. 393, 398. 400 OF TORTS AFFECTING THE PEKSON. Libel or Auotliev, tlioiigli somewhat out-of-the-way, differ- tiie dead. 6uce may perhaps be usefully referred to, viz. as re- gards a libel published or slander uttered concerning a dead person. No one could here sue in a civil action for damages, and therefore there would be no remedy as regards the slander. Nor generally would there be any remedy as regards the libel ; but if it were shewn that the design and effect of the libel was to bring contempt on the family of the dead, and to stir up the public against them, then, and then only, it might be prosecuted for (t). V. Seduction " Au action of seduction is in our law founded upon a fiction — the basis of this action, when brought even services. by a father, to recover damages for the seduction of his daughter, having been from the earliest times uni- formly placed, not upon the seduction itself, which is the wrongful act of the defendant, but upon the loss of service of the daughter, in which service the parent is supposed to have a legal right or interest. It has, accordingly, always been held that in an action for seduction loss of service must be alleged, and must be proved at the trial, or the plaintiff will fail, notwith- standing the production of evidence conclusive as re- gards the guilt of the defendant ; for the wrong done by his act the law does not esteem p^r sc as an wjuria, using that word in its strict sense, but merely as damnum sine injuria, for which, consequently, an action will not lie" {n). The action of The forcgoiug quotatiou shews lucidly enough the not for the nature of the action commonly called an action of seduction, but geduction. From it the student will carefully observe lor the loss oi •' service. that although the action is said to be " for seduction," yet this is not strictly correct ; it is really for the loss of (t) Rex V. Topkam, 4 East, 126 ; and see Mr. Justice Stephen's remarks in Heg. v. Ensor, 82 L. T. Newspaper, 2S7. (w) Broom's Corns. 74, 75. As to damnum sine injuria, see ante, pp. 4, 5. OK TORTS AFFECTINi; THE PKRSON. 4OI service that ensues from the antecedent act of seduction, and is therefore so called, but a parent or other person has no remedy simply because liis daughter or other relative has been seduced (x). This may have injured him substantially in his position or in his feelings, yet it is not what the law considers as a legal injury, but constitutes an instance of the rule already explained (y), that damnum sine injuria will not be sufficient to enable a person to maintain an action. Again, a woman cannot herself maintain any action Vojentin(mfit in respect of her own seduction, for she has been a ^"■^"'^^• consenting party, and the maxim of our law. Volenti non fit injuria, deprives her of any remedy she might but for its existence have had (2). Did the law stop here, there would, therefore, be no The fiction remedy for the tortious act of seduction ; but, as stated action of'° in commencintT the subject, this action is, in our law, seduction la o •> ' ' ' niaintainable. founded upon a fiction, which is that, although the person seduced cannot maintain any action, nor can a parent in his character of parent, yet any person, whether parent or not, between whom and the seduced party the relationship of master and servant exists, may sue for the loss of service that ensues from the pregnancy and illness consequent on the seduction, whereby the person is deprived of the services that should have been rendered to him, and to which he was entitled. This action, therefore, can be maintained by a person The usual cases who is purely and simply a master ; but this is not the oui^''courts*'are usual class of case that occurs, for in such, practically, ^^'^"^ ^ parent the damages the master would recover would be but small. The actions of seduction usually occurring in our courts are where a parent or other person sues (x) Satherwaite v. Duerst, 5 East, 47 n- (y) Ante, pp. 4, 5. (z) See Broom's Legal Maxims, 262 ct seq. 2 C 402 OF TORTS AFFECTING THE PEESON. for the seduction and subsequent loss of service to him of his daughter or other relative ; and here, though he has to make out a state of service as existing be- tween himself and the person seduced, yet this being made out technically, substantial damages may be given to the plaintiff very far beyond any real injury done by the loss of service, as a solatnim to his feelings, and increased in amount according to the conduct of the seducer. The jury also, undoubtedly, in most cases of seduction, look to the fact that, although generally look ^Y\q, actiou is nominally for loss of service, yet, sub- to the substan- ,,.. ^ ■ n e l_l n tiai object of stautially, or probably, it is chiefly for the benent of the seduced herself, it being, at any rate, the only means she has of obtaining any redress from the seducer («). The jury in an action of seduction the action. Points to be proved in an action of seduction. In every action of seduction the points to be proved are three, viz. : — 1. The fact of the seduction, and consequent illness and loss of service. 2. That the relation of master and servant existed between the plaintiff' and the party seduced ; and 3. The damages sustained. What will constitute the position of master and servant to enable a person to sue in this action. With reference to the first and third points, it has already been pointed out that it is not the actual act of seduction which really gives rise to the action, but the illness and loss of service, and that the jury have a very wide discretion in awarding damages. The second point remains, as to what will be sufficient proof of the relationship of master and servant, and as — as has also been pointed out — it is not in simple (a) Excppt, indeed, a bastardy summons for the maintenance of the child, as to which see 35 & 36 Vict. c. 65. Also, of course, practically, in an action for breacli of promise of marriage, if there has also been seduction, that may go to increase the damages. OF TORTS AFFECTING THE PERSON. 403 cases of ordinary service that the action is usually brought, but in other cases, in which it is necessary to establish a technical service, it is sometimes not easy of determination whether or not that relationship can be said to exist. It is not at all necessary to shew that the seduced it is not neces- was actually employed in a regular routine of duty (h), tha"t the ^"^ for very slight evidence of actual service, such as reduced wa.s m Jo ' any regular milking cows, making tea, nursing children, will suffice routine of sGrvicc to prove the fact of actual service. And where a daughter is shewn to have been living with her father at the time of the seduction, forming part of his family, and liable to his control and direction, service will be presumed, and proof of acts of actual service will be unnecessary (c). Where the plaintiff's daughter was seduced in his house and service in Ireland, and the day after left the country, pursuant to prior arrange- ments, for America, and whilst in service there, finding herself pregnant, returned to Ireland to the house of her sister, where she was confined, and after her con- finement she returned to the house of the plaintiff, it was held that there was evidence to go to the jury of loss of service sufficient to sustain the plaintiff's miction (d). The relationship of master and servant must be The relation- shewn to have existed not only at the time of the and servant illness and loss of service, but also at the time of the ^igte^^aYthe seduction (e), upon the principle that a master taking time of the , , 1 , , 1 ^ , ^ ^ seduction. a servant who has ah^eady been seduced, takes her with the injury already done ; it is not an injury committed during the time of his rights over her. (6) See Griffiths v. Teetgen, 15 C. B. 344 ; Torrence v. Gibbins, 5 Q. B. 297 ; Rist V. Faux, 32 L. J. Q. B. 386. (c) Addison on Torts, 587, 588 ; and as to the latter statement in the text, see Maunder v. Venn, M. & M. 323 ; Jones v. Brovm, I Esp. 217; Fores V. Wilson, 1 Peake, 77. {d) Long v. Keightley, 11 Ir. Keps. C. L. 221. (c) Davies v. Williams, 10 Q. B. 729. 404 OF TORTS AFFECTING THE PERSON. An actiou may be maintained for the seduc- tion of a married woman. The fact of the seduced party being a married woman does not prevent the action, for, provided she is separated from her husband and living with and serving her parent or other person who brings the action, without any interference on the part of the husband, the plaintiff's rights are just the same as if she were not married (/). But if a daughter is in a house of her own, the fact of her father being there, with her consent, cannot place her in a subordinate position so as to confer on him any right of action (g) ; and if she is away in actual service to some third person, and does not come home regularly, but only occasionally, although she then renders services, this cannot give the parent any right to bring the action Qi) ; but if she is generally at home, and simply away making a temporary visit when the seduction or the illness occurs, here the parent has his right of action, because he has a right to call for her services {i). If the woman is actually and substantially in the la .ncacx.i.. service of her seducer when the seduction takes place, of her seducer. ^^ Qj^g ^^1 have any right to maintain the action, unless, indeed, she has been fraudulently lured away from her home and taken into service with the view of seduction, in which case the parent or person standing in loco imrcntis will still have his remedy, because such a fraudulently arranged service does not put an end to the relationship of master and servant that before existed. In such cases it will always be a question for the jury whether there was a land fide service between the woman and the defendant (if there was a lond fide service the verdict must be for the defendant), or whether the service was arranged simply and expressly for the purposes of and with a view to the accomplishment of the seduction (if it was Effect of a woman beiu in the service (/) Harper v. Liiffhins, 7 B. & C. 387. {(,) Manlcij V. Field, 29 L. J. C. P. 79. (h) Thompson v. Ross, 29 L. J. Ex. i. \i) Grijnths v. Teetgen, 15 C. B. 344. OF TORTS AFFECTING THE PERSON. 405 SO arranged, the plaintiff will still Ije entitled to a verdict, notwithstanding such service (k) ). It will always be a good defence to an action of if the plaintiff this kind that the plaintiff has by his own conduct couduct"^ broujrht about the evil he complains of, e.fi. if he has J''ought about ° _ _ , ^ ' '^ _ the seduction encouraged any improper intimacy between the parties, lie cannot or has introduced the person seduced to, or encouraged action for it. her acquaintance with, persons of a known loose, dan- gerous, or immoral character (/). If a defendant proves that, although he seduced Scductiuu, but the woman, yet he was not the father of the child tbe*^fLther of of which she was delivered, no action lies against tjie seduced's ' o child. him (w). There are also cases in which an action can be An action for maintained for loss of services arising otherwise than (,^j^^,^g^^^j^^^^^ by seduction, for " every person who knowingly and ^'ined quite •'. . ,. .. irrespective of designedly interrupts the relation subsisting between seduction, master and servant by procuring the servant to depart from the master's service, or by harbouring him and keeping him as servant after he has quitted his place and during the stipulated period of service, whereby the master is injured, commits a wrongful act, for which he is responsible in damages " (n). And this Procuring a principle is applied not only to cases in which the j'^eakVis strict relationship of master and servant actually exists, <^"ntract. but to cases in which a person has maliciously pro- cured another to break his contract. Thus, in the case of Lumlcy v. Gyc (0), the plaintiff alleged in hh Lumhyv.Gye. declaration that he was lessee and manager of the Queen's Theatre, and that he had agreed with one Johanna Wagner to perform in his theatre for a certain (Ic) See Addison on Torts, 589, and remarks of Abbot, C.J. , in Speight V. Olivrera, 2 Stark, 495, there quoted and referred to. (l) See, as an instance of this, Rcddie v. Scoolt, I Peake, 316. (m) Eager v. Grimwood, 16 L. J. Ex. 236. (n) Addison on Torts, 583. (o) 2 Ell. & B. 224 ; 22 L. J. Q. B. 463. 406 OF TORTS AFFECTING THE PERSON. time, with a condition that she should not sing or use her talents elsewhere during the term without the plaintifiF's consent in writing ; and the defendant, know- ing these facts, and maliciously intending to injure the plaintiff as lessee and manager of the theatre, whilst the agreement with Wagner was in force, and before the expiration of the term, enticed and procured Wagner to refuse to perform, by means of which enticement and procurement of the defendant, she wrongfully refused and did not perform during the term. On de- murrer, the Court held that this shewed a good cause of action in the plaintiff, and that an action lies for maliciously procuring a breach of a contract to give exclusive personal service for a time certain, equally whether the employment has commenced or is only in fieri, provided the procurement be during the sub- sistence of the contract, and produces damage, and that to sustain such an action it is not necessary that the employer and employed should stand in the strict rela- tion of master and servant. It must be taken as now clearly decided that in all cases an action lies for maliciously inducing a person to break his con- tract with the plaintiff, and that it is immaterial whether the contract is between a master and servant or not {p). (p) Bowen v. Hall, 6 Q. B. D. 2,^,2, ] 50 L. J. Q. B. 305 ; 44 L. T. 75 ; 29 W. R. 367 ; Tempcrton v. Russell, (1893), i Q. B. 715 ; 62 L. J. Q. B. 412 ; 69 L. T. 78. OF TORTS ARISING PECULIARLY FROM NEGLIGENCE. 407 CHAPTER VI. OF TORTS ARISING PECULIARLY FROM NEGLIGENCE. In the foregoing pages many matters depending on Many matters Eegligence have incidentally been touched on, as, for [iave^fn^d^n^ instance, particularly in the chapter on Bailments, and ^^^^y ^^^^ therein of Common Carriers, which subject mostly in- prior pages, volves negligent breaches of duties on the part of the bailee (a). The design of the present chapter is to treat particularly of the subject of Negligence, intro- ducing some matters that have been before casually mentioned, and some that have not been treated of at all. Negligence producing damage to another is in all Negligence cases a ground of action to the party suffering thereby, f^e^fu'^ni't' ^"^"^ provided there is some obligation on the part of the '^f i^^ge aid T T -Tin jUrV. negligent person to use care. In cases tried before a judge and jury in which negligence is alleged, it is for the judge to consider whether any evidence of negli- gence has been given, or if the circumstances are such that negligence may reasonably be inferred, for there may be many cases in which it is rightly said res ipsa Res ipsa loqiiitur, or the thing speaks for itself, e.g. in the case ^*"^'"''- of a collision between two trains belonging to the same railway company (h). If the judge, however, considers that there is no evidence of negligence, and that it is not a res ipsa loquitur case, lie should not let the case go to the jury, but should nonsuit the plaintiff; (a) As to which see ante. Part i. chap. iv. pp. 1 22-142. (6) Skinner v. L. B. d: S. C. Ry., 5 Ex. 7S7 ; Kearney v. L. B. d> S. a Ry., L. R. 6 Q. B. 759 ; 40 L. J. Q. B. 2S5. 405 OF TORTS ARISING PECULIARLY FROM NEGLIGENCE. but if he thinks there is some such evidence, or it is such a case tliat negligence may reasonably be inferred, then he should leave the case to the jury as a question of fact, subject to rules of law or of common sense, according to which the measure of culpable or action- able negligence varies as the circumstances of each particular case differ ; for in some cases a person is liable only for very extreme acts of negligence, in others for very slight acts of negligence (c) ; thus, to again refer to the subject of bailments, we have seen that a remunerated bailee is liable for ordinary negligence, whilst a mere voluntary bailee is liable only for acts amounting to gross negligence. A person, too, may be liable not only for acts of negli- gence done in his own proper person, but also by those whom he employs, under the maxim. Qui facit per alium facit per se (d); and this is only reasonable, for the person employing has the selecting of those whom he employs, and if he employs negligent, care- less, or unskilful persons, it is only fair and proper that he should be liable for their negligence, carelessness, or unskilfulness. The burden of proving negligence in all cases, of course, lies on the plaintiff who alleges it, unless, indeed, the case is one that, as already explained, speaks for itself (c). Mode of The subject of Negligence may be conveniently the subject. Considered under the following heads, viz. : — 1. Negligence causing injury to the person. 2. Negligence causing injury to property, real or personal. 3. Defences to an action for negligence. (c) See Brown's Law Diet., tit. "Negligence," 362. (d) See Broom's Legal Maxims, 799 et seq. (e) Manzoni v. Douglas, 6 Q. B. D. 1 45 ; 50 L. J. Q. B. 289 ; 29 W. R. 425. OF TORTS ARISING PECULIARLY FROM NEGLIGENCE. 409 If a person, through negligent driving, runs over or 1. Negligence otherwise injures any person, he is liable for such injury, to"the person?" and this equally so whether the driving is by himself or by his coachman or other servant, and whether he is at the time in the vehicle or not, provided always that, in the case of a servant being the driver, he is acting in the course of his duty ; for if this is not so — as if the servant takes out the vehicle contrary to his mas- ter's orders or without any express or implied authority to do so — then the master is not liable (/). If, how- ever, the servant is out in the course of his duty, and then merely disobeys his master's instructions in some way, as by driving by a different route than what he was told to, the master is nevertlieless liable, though it is otherwise if the servant, though originally out in the course of his duty, afterwards starts off on an inde- pendent enterprise of his own {g). And generally a master or principal is liable civilly for all his servant's or agent's torts, committed whilst he was acting under his master's or principal's authority, or in the ordinary course of or incidental to his employment (Ji), for, as is ordinarily said, Respondeat siiperior, and again. Qui Respondeat facit per alium facit per se ; but if the act complained ^"P"^''- of is not witiiin the scope of the servant's or agent's authority, or incident to the ordinary duties of his employment, the master or principal is not liable {i). A master or principal is not liable criminally for his servant's or agent's act, unless he directed or sanctioned the same ; but he may be liable civilly for his servant's act though it was criminal in its nature, if it was done in the course of his employment, and in doing that (/) M'Manus V. Crickctt, i East, 106 ; Wilson v. Owens, 16 L. R. Ir. 225 (since affirmed by C. A.). (g) Storey v. Ashto'n, L. R. 4 Q. B. 476 ; 38 L. J. Q. B. 223 ; Mitchell V. CrassweUer, 22 L. J. C. P/ioo; Rayner v. Mitchell, 2 C. P. D. 357 ; 25 W. R. 633. (h) Ruddinian v. Smith, 60 L. T. 708 ; 37 W. R. 528. (i) Stevens v. Woodward, 6 Q. B. D. 318 ; 50 L. J. Q. B. 231 ; 44 L. T. 153 ; 29 \V. R. 506 ; Charleston v. London Tramways Co., 36 W. R. 367 ; Butler v. M. S. <£• L. Ry. Co., 21 Q. B. D. 207 ; 57 L. J. Q. B. 564 ; 60 L. T. 89 ; 36 W. R. 726; Abrahams v. Deakin, 60 L. J. Q. B. 238 ; 63 L. T. 690. 4IO OF TORTS ARISING PECULIARLY FROM NEGLIGENCE. which he believed to be for his employer's interest {k). Thus, if A.'s coachman whilst driving A. wantonly runs over X., no action for damages would lie against A. ; but if the coachman is driving very quickly to get A. as soon as possible to his destination, and driving carelessly runs over and kills X., under such circumstances that he is guilty of manslaughter, A. would be liable to an action for damages by X.'s representatives, notwith- standing that the coaclunan's act was criminal in its nature. Injury cause. 1 Upou the principle deleiiatus nan potest delegare a agent.*^'* ^ ' master cannot ordinarily be liable for the negligence or misconduct of a person to whom his servant or agent has delegate). Should the solicitor give assistance or information, and in fact direct the sheriff to seize particular goods, this is not within his implied authority, so as to render his client the judgment creditor liable for the act, unless indeed it was done by his (the client's) direct instructions (c). But if all the solicitor does is to indorse on the fi. fa. a statement that the debtor resides at a certain place, which is inaccurate, and by reason of it the sheriff is misled and seizes another person's goods, it has been held that to make such an indorsement is within the solicitor's implied authority, and that the client is liable in respect of the wrongful seizure {d). Negligence by If a railway company advertises a certain train to company by arrive or depart at a specified time, and through their (a) Willis, Winder <£• Co. v. Combe, i C. & E. 353. (h) Addison on Torts, 690. See, as to the measure of damages in actions against sheriffs, post, Part iii. chap. i. p. 462. (c) Smith V. Kenl, 9 Q. B. D. 340 ; 51 L. J. Q. B. 4S7. (c^) Morris v. Salberg, 22 Q. B. D. 614 ; 5S L. J. Q. B. 275 ; 61 L. T. 283. OF TOKTS AEISING PECULIARLY FROM NEGLIGE^•CE. 433 negligeuce considerable delay occurs, whereby a person reason of the is put to expense or otherwise damnified, he may of*a trahAt recover from the company, even although one of the *^^i'™P®'^ company's general conditions is to the effect that the company will not guarantee the punctuality of the trains ; and under particular circumstances, but not as a matter of course, a person is justified in taking a special train, and charging the expense thereof to the company (e). If, however, a ticket is issued subject to a condition that the company will not be liable for loss or inconvenience for delay unless due to wilful misconduct of their servants, there can be no right of action unless proof is given of such misconduct, as such a condition is not unreasonable (/). A company is justified on special occasions, such as race meetings, in suspending the running of their ordinary trains, and puiting on special trains at fares in excess of the maximum rates allowed by statute for their ordinary trains (j). 3. In addition to the self-evident defence of a 3- Defences to simple denial of the negligence alleged, in which the negligence, matter usually resolves itself into a question for the jury of yes or no, there may be two other defences of a rather more complex nature, viz. : ( i ) That the alleged negligence was really and substantially an inevitable accident; and, (2) That there was contributory negli- gence on the part of the person complaining of the negligence. As to the first of these two defences, that of inevitable accident, this might be put down under the head of a simple denial of the negligence, for, of course, if it is an inevitable accident there is (c) Jlamlin v. Great Northern Ry. Co., I H. & N. 408 ; Le Bluiche v. London and North- Western Ry. Co., i C. P. D. 286 ; 45 L. J. (Apps.) C. P. 521. (/) Woodrjate v. Great Western Ry. Co., 51 L. T. S26 ; 33 W. R. 428. See also M^Cartan v. North-Eastem Ry. Co., 54 L. J. Q. B. 441. ((j) Lawrie v. London and South- Western Ry. Co., 80 L. T. Newspaper, 120; Law Students' Journal, Jan. 1886, p. 5. 2 E 434 OF TORTS ARISING PECULIARLY FROM NEGLIGENCE. no negligence ; but a few words are necessary to point out what is such an accident, one or two instances of it, and the distinction between it and an act really amounting to negligence. What will and An inevitable accident that will form a defence to will not be an . • ■,■ i j -i i i. inevitable an action for negligence, may be descnbeu as some act accident. quite Undesigned and unforeseen, and in respect of which the person committing it has not been guilty of the slightest particle of negligence (/<)• Thus, for instance, a railway accident generally happens through some negligence on the part of the railway company's servants, but, as has been pointed out, an accident may arise in which the ingredient of negligence may be totally wanting, as by lights being obscured by fog or snow, or by there being some latent defect in a wheel or in machinery that no care or foresight could have discovered (i). So also, if a person being en- gaged in lawfully shooting game, accidentally and without any negligence shoots some jierson, he is not liable (k). But although an act may apparently result from inevitable accident, yet on close examination some negligence may often be discovered. Thus, if A. puts away a gun belonging to him in a proper and ordinarily secure place, and in some utterly unforeseen way a child gets possession of it and shoots some one, this will be an inevitable accident, and there will be no liability on A.'s part ; but if A. has left his gun in a place he should not have done, and it is there got pos- session of by the child and an injury done, here this is not an inevitable accident, for there is original negli- gence on A.'s part in thus carelessly leaving it about (I). (A) Wake/nan v. Eobiiismi, I Bing. 213. See Brown's Law Diet. 9, tit. "'Accident." Of course, the "accident" above spoken of is quite distinct from accident in equity, in which the Court gives relief in a limited class of cases against the consequences of an act which has actually occurred, as to which see Indermaur's Manual of Equit}', 177. (i) Ant€, p. 416. (k) Stanlci/ V. PoweU, (1891), I Q. B. S6 ; 60 L. J. Q. B. 52 ; 6j L. T. S09 ; 39 W. R. 76. {!) Per Lord Denman in Lynch v. Xurdin, 1 Q. B. 29. OF TORTS AKISING PECULIAKLY FROM NEGLIGENCE. v\:$'$ Contributory negligence may be defined as such an Definition of act of negligence on the part of a person complaininyniond, 938 ; ante, pp. 3. 4- (r) Mayne on Damages, 4, 5. 444 0¥ DAMAGES. harm can be shewn to have resulted (s). In other cases there are what are called special damages, that is, substantial and real damage, reasonably or probably caused by the act of the defendant (t). In our second division of the subject of damages, the general rules to be followed by the jury in assessing these special damages will be noticed (w), A person who Where a person has suffered injury from the tortious damages once, ^^t of another, and has brought an action and recovered cannot bring damacTCS for it, lie cannot, on further damacre resulting another action /-- ' ' ... in resjiect of to him from the act, bring another action, for it is all presumed to have been contemplated in the original action. Thus, if A. has met with a railway accident, and recovered damages for it, and afterwards the injury turns out more serious, still he cannot bring a fresh action (.t:). An action, It has been stated that the main object of an action usuaUy is, is generally to recover compensation for the injury need not complained of (v), but this is not invariably so ; for necessarily be -c^ \.y/5 j > for damages, instaucc, an actiou may be brought for an injunction against the commission or continuance of some act by the defendant, such as waste, and although damages may be claimed for the injury already done, yet some- times the injunction is what is particularly desired (z). Two cases in which the action need not mainly be for Provision of damages may specially be mentioned, viz : (i) Under Law Procedure the Common Law Procedure Act, 1854 (a), in any Act^ 1854, action in respect of the wrongful detention of goods or (s) See as to such actions, per Cress well, J., in Bolin v. Steward, 14 C. B. 605 ; Larios v. Gurety, L. R. 5 Priv. C. 346 ; Marzctti v. Willinms, 1 B. & A. 415 ; Morris v. London and Westminster Bank, I C. & E. 498 ; Broom's Corns. 83, 84. (t) Broom's Corns. 942. {u) Post, pp. 446-45.V. (.t) Per Best, C.J., Richardsoti v. Mellish, 2 Bing. 240. {y) Ante, p. 439. (2) An injunction may be granted by any division of the High Court of Justice. (a) 17 & iS Vict. c. 125, s. 78. OF DAMAGES. 445 chattels, the plaintiff may, on a verdict being given for him, apply to the Court or a judge to order execution to issue for the return of the particular goods, with- out giving to defendant the option of retaining them on paying their value, and the Court may, at discre- tion, so order (b). (2) Under the Sale of Goods Act, Provision of 1893 (c), the Court has power to order the specific ^^t^^ 1893°° * performance of contracts for the sale of goods. This ^- s^- provision has already been referred to in a previous part of this work (d). A person against whom damages are awarded is, Liability of ar^ of course, liable to have the judgment fully enforced admiuistrator against him by execution ; but in the case of an executor ^^ ^^ action. or administrator defendant, although he is personally liable for the costs, yet he is not for the damages, but only his testator's or intestate's estate, unless he has set up some defence he knew to be false, when on default of the estate he will be personally liable. He will, however, be personally liable to the fullest extent when he has in writing, for valuable consideration, agreed to pay his testator's or intestate's debt (e), e.g. where, in consideration of the creditor forbearing to take proceedings for the administration of the estate by the Court, the executor promises personally to see him paid, or when he is sued on some contract he has himself entered in to, e.g. where he gave instructions for the funeral, he will be personally liable. If an (6) See also ante, p. 355. (c) 56 & 57 Vict. e. 71, s. 52. {d) Ante, p. 109. Prior to the Acts mentioned above, Courts of Law had no power of giving specific delivery of chattels. But the Court of Chancery had long had such a power, though only when the chattel _^as of some special and peculiar value, for which damages would not compensate (see Puseij v. Puscy, and Duke of Somerset v. Cookson, I White & Tudor"s Leading Cases in Equity, 820, 821, and notes). It will be observed that the statutory powers given to the courts of law are quite irrespective of any special or peculiar value in the chattel. Under the Judicature Act, 1873, any division of the Court can give specific delivery of chattels, either under these Acts or on the principle of special and peculiar value formerly acted on by the Court of Chancery. (c) Ante, pp. 49, 50. 446 OF DAMAGES. executor or administrator sues and fails, he will be liable for costs in the same way as an ordinary plain- tiff, unless the Court otherwise orders (/). Assessment of Damages are, generally speaking, assessed by a jury, amages. ^^^ when they are really and substantially a matter of calculation — e.g. in cases of complicated accounts between the parties that cannot be conveniently dis- posed of by a jury in the ordinary way — they may be referred for assessment to one of the Masters of the Court, or to an official or special referee. In all cases in which damages are to be assessed (whether at the trial or on an inquiry or reference after inter- locutory judgment), they are calculated not merely down to the date of the issuing of the writ, but down to the date of the assessment {g). 2. The measure 2. Juries in Essessing damages are bound by certain of damages established and recognized rules, which are pointed generall}-. ° . . , out to them by the judge in summmg up the case, which rules constitute the scale or measure of damages in an action. Some of these rules equally apply whether the action is founded upon contract or upon tort, and some particularly to each class of action. Damages must The first and most important rule which applies to not be too ^YY actions is, that the damages must not be too remote, remote. ' ° but must be the natural and probable result of the defendant's wrongful act {h). " Damage is said to be too remote when, although arising out of the cause of action, it does not so immediately and necessarily flow from it as that the offending party can be made responsible for it " (i). One or two illustrations will explain what is meant (/)3&4 Wm. 4, c. 42, s. 31. (r/) Order xxxvi. rule 58. (h) See per Patteson, J., in KeUy v. Partington, 5 B. & A. 645. (() Mayne on Damages, 47. OF DAMAGES. 447 by this rule, and, firstly, as an instance of its appli- what is meant cation in an action of contract, we may take the ^^ *^'^" important case of Hadle// v. Baxendale (k), which it Hadiey v. has been said was a case intended to settle the law ■^''^«**^^«- upon the subject (I). In that case the facts were shortly as follows : The plaintiffs were mill-owners, and one of the mill shafts being broken, they sent a ser- vant to the office of the defendants, who were common carriers, who informed the clerk at their ofHce that the shaft must be sent at once, the mill being stopped for want of it, and the clerk told him in reply that if it were sent any day before twelve o'clock it would be delivered the following day. Accordingly the shaft was entrusted to the defendants to carry, and the carriage paid, but through the defendants' neglect it was not delivered in the proper time, and the work- ing of the mill was therefore stopped for several days. The plaintiffs contended that in estimating the damages the jury should consider not merely what it would have cost to have procured another shaft, but that the loss of profits caused by the stoppnge of the mill should be taken into account ; but the Court decided that this was not so, for that the rule is, that the damages in respect of breach of contract must be such as may fairly and reasonably be considered as either arising naturally from the breach, or to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it. Here the mere fact of what the servant had told the clerk, in the absence of any express or implied contract on the carrier's part that special diligence should be taken on that account, was not sufficient to make this loss of profits damages that might reasonably be expected to flow from the breach. With regard to this case, it should also be mentioned that, even had the person who delivered the (k) 9 Ex. 343. See also Thol v. Henderson, 8 Q, B. D. AC?: 46 L. T. 483. 't^/ , ^ (I) Per Pollock, C.B., in Wilson v. Newport Dock Co., L. R. i Ex. i8q. 448 OF DAMAGES. Difficulty of application of tliu rule as to shaft then informed the carriers that loss of profits would ensue from any delay, they would not thereby have been liable in respect of such loss of profits, because, being common carriers, they were bound to receive the shaft to carry. The rule that damages must not be too remote is, indeed, in cases of this remoteness of kind, most difficult of application, and it is very hard, if not impossible, to reconcile all the decisions in which the fact of notice or knowledge of some special cir- cumstances has been held sufficient to render damages arising from it recoverable as not being too remote, and different rules have been laid down upon this point ; thus in one case : " The damages are to be what would be the natural consequences of a breach under circumstances which both parties were aware of " (in) ; but this rule would appear too wide viewed by the side of the following one : " The knowledge must be brought home to the party sought to be charged, under such circumstances that he must know that the person he contracts with reasonably believes that he accepts the contract with the special conditions " (n). Correct rule, Tlie coiTCCt rulc appears to be, that where there are any special circumstances connected with a con- tract which may cause special damage to follow if it is broken, mere notice of such special circumstances given to one party will not render him liable for the special damage, unless it can be inferred from the whole transaction that he consented to become liable for such special damage, and that if the person has an option to refuse to enter into the contract, but still after such notice enters into it, this will be evidence that he accepted the additional risk in case of breach (o). (m) Per Blackburn, J., iu Cory v. Thames Ironworks Co., L. R. 3 Q. B. 186 (n) Per Willes, J., in British Columbia Saw-mills v. Nettleship, L. R, 4 C. P. 509. (0) Mayne on Damages, 41 ; and see the case of Hadley v. Baxendale, and subsequent cases ou the subject collected and dealt with in Mayne on Damages, 10-42, OF DAMAGES. 449 The case of Kelly v. Partington (p) furnishes anKeHi/v. illustration of the rule against remoteness of damages, ■^"'■^"'i/'<'"- arising in an action of tort. That was an action by a servant for slander, the words not being actionable in themselves, and the plaintiff sought to prove as damages the fact that in consequence of the slander a third person had refused to employ her, which he otherwise would have done ; but the Court held that as the words which were made use of were not such as would have naturally led to such a result, such damages were too remote. So, to take another in- stance, in Sharp v. Poiccll (q) the facts were, that tlie sharp v. defendant's servant wrongfully washed a van in a ^'^^''^'^^ public street, and the water ran down a gutter, and would have run down a drain had it not been ob- structed by ice, of which fact he was not shewn to be aware. As it was, the water spread over the road and formed a sheet of ice, on which the plaintiff's horse fell and was injured. It was held that the defendant was not liable for this damage, as it was not the natural consequence of his servant's act, for in the ordinary course of events the water might have been expected to properly pass away. In actions on contract the measure of damages does in actions ec not depend upon the motives which led the defendant motWeVof t'L to break the contract, for, however evil his intention defendant cannot attect may have been in breaking it, that fact cannot be ^^^ damages, taken into consideration. Thus, the defendant may, from motives of annoyance, or even worse, have refused to pay a debt due until actually compelled to do so, yet all that can be recovered is the amount of the debt, with interest in some cases (7-), which will presently be noticed. To this rule, however, there is ip) 5 B. & A. 645. (.7) L. R. 7 C. P. 253 ; 41 L. J. C. P. 95 ; 20 W. R. 584 ; see also Miller v. Bavicl, L. R. 9 C. P. 126 ; Chamberlain v. Boyd, 11 Q. B. D. 407 ; 52 L. J. Q. B. 277 ; 48 L. T. 328 ; 31 W. R. 572. (r) Mayne on Damages, 43-44. 2 F 450 OF DAMAGES. Except in breach of promise of marriage. one exception, viz. an action for breach of promise of marriage, which, though strictly speaking an action on a contract, yet so strongly pertains to a tort, that the motives of the defendant iu committing the breach, and his conduct, are often a most important point, as also his position in life (s). In this action, tlierefore, the principles stated in the next paragraph will gene- rally apply. IJut it is otherwise iu actions ex delicto. In actions of tort, the motives of the defendant in committing the tortious act are all-important, for in such actions any species of aggravation will give ground for additional dama^jes (/). Tlius, if two assaults are committed, the one perhaps unintentionally, or at any rate hastily, or under circumstances of a somewhat ex- cusable nature, and the other premeditated and fully intended, and perhaps accompanied with insulting or opprobrious expressions or other circumstances of aggravation ; in the latter case very much heavier damages will be given than in the former, although practically the plaintiff may not have sustained any greater or more substantial injury than in the other case. Instances might be multiplied to any extent, for almost every action of tort will be found to con- stitute an instance in itself more or less striking. A jury, therefore, in assessing damages in tort, are governed by far looser principles than in contract (w) ; and in many cases of tort the jury are justified in giving damages quite beyond any possible injury sus- actions^ex" '" ^i^'^^Q^ by the plaintiff, on the ground that the action is brought to a certain extent as a public example, and damages, when so awarded, are styled exemplary or vindictive damages (x). As an instance of this liooser prin- ciples are observed in awarding (luniages in actions ex contractu. Vindictive danmses. (s) Mayne on Damages, 43. (() Ibid. 45. (m) Ibid. 45, 46. (x) Buckle V. Money, 2 Wils. 205 ; Fahrvjas v. Mostyn, 2 W. Bl. 929 ; Emblem v. Myers, 30 L. J. (Ex.) 71 ; Bell v. Midland Ry. Co., 30 L. J. (C. P.) 273. OF DAMAGES. 451 an action for seduction may be particularly men- tioned (y). It was formerly laid down as a rule in actions of Although it tort, that not only must the damage be the natural ^^conl^ered, and probable result of the defendant's act, but also that ll\l°^^lll^y the ivrongful act of a third person, even although it that damages might be the natural and probable result of the de- should be the fendant's act, could never be taken into consideration quenc'l°g°orthe in assessing the damaQ-es against the defendant, or, in defendant's other words, that damages must be the natural and legal consequence of the defendant's act {z). The practical working of this rule may be well illustrated by an extreme case. Suppose that the defendant had slan- dered the plaintiff openly before a number of people, by using words leading them to believe the plaintiff guilty of some such disgraceful action that they might naturally have been expected to set upon him and ill- use him in consequence of their belief in such words, as by putting him in an adjacent pond ; and suppose this to have been not only what might have been expected, but also what actually occurred, yet as such an act was, of course, an unlawful one on the part of such third persons, it could not have been taken into account by the jury in estimating the amount of the damages, as though under the circum- stances the natural, it was not the legal consequence of the act («). This former rule was manifestly unjust, and must now be taken as clearly not law (b). (y) Per Wilmot, C.J., in Tullidge v. Wade, 3 Wils. 18. As to actions of seduction, see ante, pp. 400-405. (z) Vicars v. Wilcocks, 2 S. L. C. 577 ; 8 East, I ; Morris v. Langdale, 2 B. & P. 284. {a) See per Lord Wensleydale, in Lynch v. Knight, 9 H. L. Cas. 577. (6) Lynch v. Knight, 9 H. L. Cas. 577 ; Knight v. Gihhs, I A. & E. 43 ; Green v. Button, 2 C. M. & R. 707 ; LumJey v. Gye, 22 L. J. Q. B. 463 (the facts of which latter case are set out ante, pp. 405, 406) ; M'3fahon V. Field, 7 Q. B. D. 591 ; 50 L. J. Q. B. 552 ; 45 L. T. 381 ; Frangaise des A sphaltes v. Farrell, i C. & E. 563 ; notes to Vicars v. Wilcochs, 2 S. L. C, 580-609, and cases cited and referred to ; Mayne on Damages, 75. 452 OF DAMAGES. AVh en interest In actioDS on Contract interest may properly he recoverable. i i i xi • • • j.i i. r xi awarded by the jury as increasing tlie amount or the damages in some cases, though not in all, for the law- does not allow interest unless the right to it is given by statute, or contract, or the law merchant (c), though it may also sometimes be recovered as damages for the wrongful withholding of money (d). That interest is allowed in tlie case of bills of exchange and promissory notes has been noticed in considering those instruments (c) ; also interest may, of course, be recovered where there has been an express contract to pay it, or where a contract can be implied to that effect, as from the custom of a banking-house, known to the defendant, or where it has been paid in like previous trans- actions between the parties ; also where a bill or note has been agreed by the defendant to be given for a debt, and not given, the plaintiff may recover interest from the time it would have become due if given, because then it would have itself carried interest (/). Trovision of It has also been provided by statute (f/), that upon all c/42^ 8. 23/' tlebts or sums certain, payable at a certain time or otherwise, the jury, on the trial of any issue, or on any inquisition of damages, may, if they shall think fit, allow interest to a creditor at a rate not exceeding the current rate of interest, from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time, or if payable otherwise, then from the time when demand of payment shall have been made in waiting, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the time of payment (h). It is also provided that the jury on the trial of any (c) In re Gosman, 17 Ch. D. 771 ; 50 L. J. Ch. 624 ; 29 W. R. 793. (d) Webster v. British Empire Life Assurance Co., 15 Ch. D. 109 ; 49 L. J. Ch. 769 ; 28 W. R. 818. (e) Ante, p. 191. (/) Mayne on Damages, 156-158. ((/) 3 & 4 Wnj. 4, c. 42, (h) Sect, 28. OF DAMAGES. 453 issue, or on any inquisition of damages, may, if they shall think fit, give damages in the nature of interest over and above the value of the goods, in actions for wrongful conversion or trespass to goods, and also over and above all money recoverable on policies of insur- ance made after the Act (i). A judgment of the High Court carries interest at interest on 4 per cent, from its date (Z-), and where costs are given jebf!"^" by a judgment or order and taxed, interest on such costs runs from the date of the judgment or order, and not merely from the date of the taxing-master's certificate (/). A County Court judgment does not carry interest (m). There are some few cases in which it has been pro- Double and vided by statute that double or treble damages shall damages. be recoverable, e.g. in the case of a wrongful distress for rent where no rent was actually due, the party so wrongfully distraining forfeits double the value of the chattels distrained on, together with full costs of suit (n). 3. Damages in every particular case depend mores. Damages in or less on the general rules as to the measure of trc^far cases. damages laid down in the preceding pages. Where, on a contract for the sale of land, it turns Damages out that the vendor has no valid title to convey to the a^pul-chaser ^ purchaser, naturally the latter has a right of action »" Y^^fl °^ *•' against the former, and he is entitled to recover as his sell land. (i) 3 & 4 Wm. 4, c. 42, s. 29. See hereon Webster v. British Empire Mutual Life Assurance Co., 15 Ch. D. 169 ; 40 L. J. Ch. 769 ; 28 W. R. 818. (k) I & 2 Vict. c. no, s. 17. {[) Re London Wliarfinrj and Warehousing Co., 54 L. J. Ch. I137 ; 30 W. R. 836 ; 53 L. T. 112 ; Taylor v. Roe, (1894), I Ch. 413 ; 63 L. J. Ch. 282 ; 70 L. T. 232. {m) Rc(j. V. Essex County Court Judge, 18 Q. B. D. 704 ; 56 L. J. Q. B. 315; 57L. T. 643; 35W. R. 511. (n) 2 Wm. &. M., sess. i, c. 5, s. 5. 454 OF DAMAGES. damages any expenses he has properly incurred in in- vestigating the title, and also, if he has paid a deposit, such deposit and interest thereon (o), but he is not entitled to recover anything for expenses incurred purely on his own behalf and not actually necessary, e.g. surveying the estate, nor any expenses he has incurred before the proper time for doing so, e.g. the preparing of the conveyance in anticipation of matters being all right ( p). This rule appears to be an absolute one if the action is simply for damages for breach of the contract; but there may be circumstances justifying an action for fraud and deceit, which will enable the purchaser to recover substantial further damages, as where the vendor knew he had no title and no means of acquiring it {q). Damages In an action against a purchaser of land for refusing Iga^ust a'^'' to complete as he should have done, the damages that jmrcbaser for ^\^q plaintiff is entitled to recover are not the full price refusing to ^ i^iiiij-i ^oniiiiete. agreed to be paid, or the value of the land, but the loss he has actually sustained by the defendant's breach of contract, which will in most cases be the expenses the plaintiff has been put to, and any special incon- venience he has sufTered, and the difference between the price agreed upon and the sum produced on a re- sale (r). Under the ordinary stipulation, that if the purchaser fails to comply with the conditions of sale the deposit shall be forfeited to the vendor, the vendor is entitled to forfeit it on such an event (s) ; this does not, however, preclude him from bringing an action (o) Mayne on Damages, 198. (p) Ibid. 199. (q) Flurcau v. Thornhill, 2 W. Bl. 1078 ; Bain v. Fothergill, L. R. 7 H. L. 15S ; 43 L. J. Ex. 243 ; Roicc v. School Board for Londwi, 36 Ch. D. 619 ; 57 L. T. 1S2, The old case of Hopkins v. Grazcbrooke, 6 B. & C. 31, is overruled by Bain v. Fotherr/ill (supra), and the case of Eiigel V. Fitch (37 L. J. Q. B. 145) must be considered a doubtful authority, and is questioned in Bain v. Fothergill (supra). It is there- fore safest to consider Engel v. Fitch as not being a binding authority, and that the law is correctly stated above. (r) Laird v. Fi/m, 7 M. & W. 474. (s) Ilinton V. Sparkcs, L. R. 3 C. P. 16 1. OF DAMAGES. 455 against the vendee also, but if he does so, the amount of the deposit will be taken into account in calculat- ing the damages {t). Where an action is during the continuance of a Damages lease brought by the landlord for breach of a cove- aractkm by'^ nant to repair, the measure of damaiies is generally ^ landlord 11 , ... , .'=' . ° . "^ for breach of considered to be the real injury that has been done to a covenant to the reversion {v) ; but if the lease has actually expired, '^^P'^^^- then the measure of damages will ordinarily be what it has cost, or would cost, to put the premises in proper repair in accordance with the covenant (x). In the case of trespass or other injury done to land. Damages for the actual occupier of it is naturally the person entitled on^iamfmay to brinfij an action, but if the in jury is one of a perma- sometimes ^ . -^ be recovered, nent nature, that tends to depreciate the value of the both by the inheritance as well as the immediate ownership, not the"rever*'^^ only may the occupier sue, but also the reversioner (y), sio°er. which has been well instanced by the case of injury done to trees, where the occupier would have his right of action in respect of the loss of shade from them, and the reversioner for the loss of the timber (z). And if the reversioner would have a right of action for dam- ages in respect of the injury done to his reversion, ordinarily he may also sue for an injunction to restrain the doing of the act, but he must shew that his rever- sionary property has been or will be injured (ct). With regard to a contract for the sale and purchase Damages of goods, the Sale of Goods Act, 1893 (&), provides f^-^^^f^*' {t) Ocl-endenv. Henhj, 27 L. J. Q. B. 371. (w) Mayne on Damages, 263 ; Wkitharn v. Kershaio, 16 Q. B. D. 613 ; 34 W. B. 340 ; 54 L. T. 124. See also and compare the recent case of JMMs v. Conquest, (1895), 2 Ch. 377. (x) Mayne on Damages, 267. {y) Jesser v. Gifford, 4 Burr. 2141. (2) See Bedinr/field v. Onslow, 3 Lev. 209. See ante, p. 322. (a) Cooper v. Crahtree, 19 Ch. D. 193 ; 51 L. J. Q. B. (Apps.) 544. (6) 56 & 57 Vict. c. 71. 456 OF DAMAGES. purchaser of ^oods for breach of contract. that on breach of it by the purchaser the measure of damages is the estimated loss directly and naturally re- sulting in the ordinary course of events from the buyer's breach of contract, and that where there is an available market for the goods in question the measure of damages is ])rimd facie to be ascertained by the difference be- tween the contract price, and the market or current price at the time when the goods ought to have been accepted by the buyer, or, if no time was fixed for acceptance, then at the time of the refusal to accept {e). But if there is not merely a contract for the sale of goods, but the property in them has actually passed to the purchaser {d), although they may not have been delivered, here the vendor may usually recover the full amount of the price agreed to be paid by the pur- chaser (e). Damages recoverable on lireach of contract to deliver goods. The Sale of Goods Act, 1893, f^^so provides that on the breach of a contract for the sale and purchase of goods by a seller in not delivering them, the measure of damages is the estimated loss directly and naturally resulting in the ordinary course of events from the seller's breach of contract, and that where there is an available market for the goods in question, the measure of damage is jprimd facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time when they ought to have been delivered, or, if no time was fixed, then from the time of refusal to deliver (/). If, however, the goods are of such a kind that they are not procurable in the market, or not at or about the time of the breach, then some other evidence must be fiiven to shew what their value was at the time when the contract was broken ; and a variety of circum- (c) 56 & 57 Vict. c. 71, s. 50. (d) As to when the property in goods passes, see ante, pp. 93-9 U) 56 & 57 Vict. c. 71, s. 50. (/)Sect. 51. OF DAMAGES. 457 stances may be looked at to arrive at an answer to the question, Wliat was the article worth at the time ? (y) Then, ascertaining in some way that value, the measure of damage is the difference between the contract price and such value. A buyer cannot recover the loss of profit which he would have made by carrying out a contract for re-sale at a higher price, made in the interval between the first contract and the time for delivering (h). This rule applies equally in the case of the sale of an unmanufactured article (i). Still, the price that would have been obtained on a re-sale may be evidence of the value of the goods (/.:). And, notwithstanding the rule above stated, where a chattel is purchased for a particular purpose of which the vendor knows, and for which he expressly sells the article — e.r/, to enable the purchaser to carry out a Case of sub- sub-contract — on breach, loss of profit may be recovered as well as any damages the purchaser may have to pay through not carrying out his contract (/). AVith regard to an action for the breach of any Damases warranty on a sale of goods, the Sale of Goods Act, cases of breach 1893, provides that the measure of damages is the ^'^ ^^''^"'''^"*y- estimated loss directly and naturally resulting in the ordinary course of events from the breach of warranty, and that in the case of breach of warranty of quality the loss is iirimd facie the difference between the value of the goods at the time of delivery to the buyer, and the value they would have had if they had answered to the warranty {m). This of course means that this is the measure of damages where the goods {g) Mayne on Damages, 181, 182. (h) Ibid., 177. See also, as shewing that the general rule may be departed from in some cases through the conduct of the defendant himself, Ogle v. Earl Vane, L. R. 3 Q. B. 272. [i) Tredegar Iron and Coal Co. v. Gielgud, i C. & E. 27. (X.) Stroud V. Austin, i C. & E. I19 ; Mayne on Damages, 183. (Z) Hydraulic Engineering Co. v. McIIafie, L. R. 4 Q. B. (Apps. ) 670 ; 27 W. R. 221 ; Hamilton v. Magill, 12 L. 1!. Ir. 186 ; Grcbert-Borgnis V. Nugent, 15 Q. B. D. 85 ; 54 L. J. Q. B. 51 1. ("O56& 57 Vict. c. 71, s. 53. 45 S OF DAMAGES. have not been returned ; and ordinarily the purchaser has no right to return them (n), but he may have such a right by express agreement, or the seller may assent to their being returned. In such cases as this, if the buyer has not paid the price, then, if he has not suf- fered any special injury, he will be entitled to nominal damages only, and if he has paid the price and suffered no injury beyond that, then the measure of damages will be the price paid (o). Damages If a carrier is guilty of delay in carrying either against a passeugcrs or goods, he is liable for the natural conse- 5gi"f ^°'' quences of his neglect. Thus, where the contract is to carry a passenger, a failure to do so entitles him to procure another conveyance, if it was reasonable so to do, and to charge the carrier with the expense of the substituted conveyance, and with all other expenses necessarily and properly incurred (^)). As regards the carriage of goods, where the result of the delay is absolutely to destroy them, if their nature was known to the carrier, the whole value is recoverable ; and in the case of goods sent by land, which are or may be supposed to be consigned for immediate sale, the de- faulting carrier is liable for any diminution in their value caused by a fall in the ordinary market price. But in the case of goods sent by a long sea-voyage, no such ground of damage is allowed, but only interest on the invoice price of the goods is recoverable ; and the carrier can never be liable for loss of profit on some special contract lost through the delay in carriage, unless such special contract was communicated to him, and he had contracted to be answerable for such special damage (q). With regard to actions against a carrier of passen- (n) Ante, pp. 109, no. (0) Mayne on Damages, 191. ip) Ibid. 298, 299. (2) Ibid. 299, 300. OF DAMAGES. 459 gers for some personal injury caused by the defendant's Damages negligence, the measure of damages consists in the against a substantial iniury the plaintiff has suffered by the ^^"'^"^^ "^'^ J L ^ >i passengera. expenses of his cure, his loss of time and consequent injury to his business, and his inability to continue that business, and the general pain and discomfort he has been put to (r) ; and the fact of the plaintiff having through an insurance received compensation for his accident cannot be set up by the defendant in reduction of damages is). "With regard to actions brought under the provisions Damages of Lord Campbell's Act (/), the rule has been stated to campiu's be " that the damages should be calculated in reference ^^t. to a reasonable expectation of pecuniary benefit, as of right or otherwise from the continuance of the life " {it), which means that the jury cannot speculate on mere probabilities of advantages that might possibly have ensued to the persons for whose benefit the action is brought, nor can they look to the grief caused such persons by the death, but they may consider the fair loss of comforts and conveniences to such parties through the death, for this is fairly within the pecu- niary loss for which the action is brought (:/j). And in -calculating this pecuniary loss the jury may con- sider any reasonable probabilities of pecuniary benefit capable of being estimated in money, e.g. that the deceased, who had been in the habit of contributing towards the support of a relative, for whose benefit the action is brought, would have continued to have (r) Mayne on Damages, 453, 454, and see, as to how far this principle will be extended, Armsicorth v. South-Eastern Ry. Co., Ii Jur. 760; Phillips V. London and South- Western Hi/. Co., 5 C. P. D. 280; 49 L. J. C. P. 233 ; 42 L. T. 6. (s) Yates v. White, 4 B. N. C. 2S3 ; Bradhurn v. G. W. Ry., 44 L. J. Ex. 9. (t) 9 & 10 Vict. c. 93, as to the provisions of which see ante, pp. 418, 419. (w) Per cur. FranMin v. South-Eastern Ry. Co., 3 H. & N. 211. See, as a recent illustration of the above rule, Harrison v. London and North- Western Ry. Co., i C. & E. 540. (x) Franklin v. South-Eastern Ry. Co., 3 H, & N. 211 460 OF DAMAGES. Damnges recoverable on breucli of contract to lend money. Damages recoverable iu actions for trespass, or otht-r injury to land. Damages recoverable in respect of nuisances. done so (ij). It has been held that the jury cannot give damac^es in respect of the funeral expenses, there being nothing in the Act to justify their so doing (;:). The ordinary damages recoverable for breach of a contract to lend money are any excess of interest, and any additional costs and expenses properly incurred, but where special damage results from the breach of the agreement, and the party is deprived of the opportunity of getting money elsewhere, these circumstances may also be considered, and substantial damages awarded iu respect of them (a). In an action for trespass or other injury to land, the general measure of damages is tlie diminished value of the land (h) ; and in cases of trespass, where no real injury has been sustained, and there are no special circumstances of aggravation, nominal damages only will be given. If, however, there are any circum- stances of aggravation, or the trespass has been com- mitted after notice not to trespass, exemplary or vindictive damages may be given, quite beyond any real injury that the plaintiff has suffered (c). In cases of nuisances where no substantial injury has been done, if it is the first time that an action has been brought iu respect of the nuisance, nominal damages generally will only be given ; but if it is a second or subsequent action for the continuance or re-occurrence of the same nuisance, exemplary damages may be given with a view to compelling its removal (d). In any action the plaintiff may also obtain an injunc- (2/) Dalton V. South-Eastern Ry. Co., 27 L. J. C. P. 227 ; Pyni v. Great Northern Ry. Co., 2 B. & S. 767 ; 4 B. & S. 396. {z) Dalton v. South-Eastern Ry. Co., 27 L. J. C. P. 227. (a) Manchester and Oldham Bank v. Cook, 49 L. T. 674. (6) Jones v. Gooday, 8 M. & W. 146. (c) Merest v. Harvey, 5 Taunt. 442. As to trespass to land, see ante, pp. 320-328. {d) Battishill y. Reed, 25 L. J. C. P. 290. OF DAMAGES. 46 1 tior, either in addition to or instead of damages (c). whenarever- Not only the actual occupier of lands, but also the tldn'^danw^es. ' reversioner may obtain damages if the nuisance is of a permanent nature (/). In actions for breach of promise of marriage the Damages in only rule that can be given is that temperate and breach of"^ reasonable damages should be awarded, the iury Promise of ° _ ' >> J marriage. fairly considering the grief caused by the breach, and the probable pecuniary or social loss sustained by the plaintiff; but any evil motives of the defendant, or circumstances of aggravation, may be taken into account. The damages to be awarded the plaintiff in an action Damages in for assault and battery {g) must always depend on the assault and circumstances of the case. In the case of a simple and battery, ami ■"■ raise 1111- somewhat excusable assault, nominal damages only will prisonment. generally be given, but exemplary damages may be given if there has been any special injury, or the assault has been attended with circumstances of insult, or has been premeditated. In actions, too, for false imprisonment Qi) the damages must depend on the same principles {i). In actions for malicious prosecution (/.) damages may Damnges be awarded not only in respect of the actual pecuniary [rrjtlons^for loss the plaintiff may have been put to in defending mi^iicious ,.,.,,. , prosecution. himself, but also in respect of the mjury done to his character (Z). The damages recoverable against a witness who has (e) 21 & 22 Vict. c. 27. This statute was repealed by 46 & 47 Vict. c. 49, but its principle is preserved by sect. 5 {80/yers v. Collyer, 28 Ch. D. 103 ; 54 L. J. Ch. I ; 51 L. T. 723 ; 33 W. R. 91). (/) See as to nuisances, ante, pp. 329-334. {g) As to which see ante, pp. 356-365. (A) As to which see ante, pp. 365-376. (t) Mayne on Damages, 457. (k) As to which see ante, pp. 376-379. {I) Mayne on Damages, 447. 462 OF DAMAGES. Damages been served with a subpcena, and whose reasonable aga?usra^!foii- expenses have been tendered, consist of a penalty of attending ;^I0, and such further sum as may be awarded for the witness. .111 i 1 i injury or loss sustained by the party who subpoenaed him (m). If, through the non-attendance of the witness, the party gets the trial postponed, the proper measure of damages will be the expenses of going down to the trial and of getting it postponed, and all costs inci- dental to such postponement. Damnges against a sheriff for negligence executing process. In an action against a sheriff (?i) for having by his negligence allowed some person arrested by him for debt to escape, althou;_'li formerly the damages re- coverable against him were the full amount of the debt, yet this is not always so now, for the measure of damages is the value of the custody of the debtor at the time of his escape ; that is, if he was reasonably or probably able to satisfy the debt, the full amount will be awarded, but if he had no means, or very slight means of doing so, then the damages will be very much less. And if the plaintiff has by his con- duct prevented the defendant from retaking the debtor, or has in any way aggravated or increased his loss, this will naturally affect the amount to be recovered (o). In an action against a sheriff for neiiligence in not having levied on goods when he might and ought to have done so, the damages recoverable are not neces- sarily the full amount of the debt for which the levy ought to have been made, or the full value of the goods ; but the real measure of damages is the benefit that the plaintiff would have probably derived from the levy had it been made (p). In an action by a servant for wrongful dismissal (q), (m) 5 Eliz. c. 9, s. 12, made perpetual by 26 & 27 Vict. c. 125. (n) As to which see ante, pp. 431, 432. (0) Ai-den v. Goodacre, 20 L. J. C. P. 184 ; Macrae v. Clarke, 35 L. J. C. P. 247 ; and see also Mayne on Damages, 439, 440. {■p) Hohson V. Thelluson, 36 L. J. Q. B. 302 ; L. R. 2 Q. B. 642. (q) As to the subject of master and servant generally, see ante, pp. 226-230. OF DAMAGES. 463 the measure of damages is obtained " by considering Damages what is the usual rate of wages for the employment a^^'acUou by a contracted for, and what time would be lost before a se>'^an* for ' ■wrongrul similar employment could be obtained. The law con- dismissal, siders that employment in any ordinary branch of industry can be obtained by a person competent for the place, that the usual rate of wages for such employ- ment can be proved, and further, that when a promise for continuing employment is broken by the master, it is the duty of the servant to use diligence to find another employment. If, indeed, the particular employ- ment could not be again obtained without delay, and if the wages stipulated for in the contract broken were hitiher than usual, the damages should be such as to indemnify for the loss of wages during that delay, and for the loss of the excess of wages contracted for above the usual rate," but nothing beyond this (r). Therefore it follows that only nominal damages are recoverable for wrongful dismissal if the servant could have at once obtained other employment of a similar kind which a reasonable man would have accepted (s). (r) Broom's Corns. 702. (s) Macdonnell v. Marsdcn, i C. & E. 2S1. 4^4 OF EVIDENCE IN CIVIL CASES. CHAriER IT. OF EVIDENCE IN CIVIL CASES. Mode of con- sidering the subject. Having in the previous pages discussed the different rights that a person has in respect of contracts and of torts, and the damages to be awarded him in an action in respect of them, there necessarily remains to be con- sidered tlie important subject of the evidence to be given by a person in our courts in support of the ri;.:ht that he tliere sets up. The subject may conveniently be considered in the following order : — 1. The nature of evidence generally. 2. The competency of witnesses and the admissibility of particular evidence. 3. Cases of privilege. 4. Some miscellaneous points. I. As to the nature of evidence generally. Direct and indirect evidence. I, As to the nature of evidence generally. Evidence has been defined as the proof, or mode of proving, some fact or written document, and in its nature may be direct or indirect (or, as it is more usually styled, circimistantial), primary or secondary, and there may also be admissions which may serve as evidence (a). By direct evidence is meant some positive or conclusive proof; by indirect or circumstantial evidence, some proof from particular circumstances (h). The division of direct and indirect (or circumstantial) evidence, ap- plies more particularly to criminal than to civil cases, and therefore that division will not be further discussed (a) Brown's Law Diet. 212. \h) See Brown's Law Diet. 93, tit. " Circumstantial Evidence." OF EVIDENCE IN CIVIL CASES. 465 beyond explaining the distinction by an illustration. Thus, let us take the case of a man prosecuted for murder, the death of the deceased having resulted from a pistol-shot. Proof by some one who saw the prisoner fire the shot would be direct evidence ; but if it was not actually seen, but the prisoner was found near the spot with a pistol recently discharged in his hand, and the shot fitted the barrel of the pistol, this would be indirect or circumstantial evidence that he was the murderer. Primary evidence may be defined as the highest kind Difference of evidence which the nature of the case admits of (c), ''^*'^^'° *''*'™- and secondary evidence as everything falling short of the best or primary evidence (d). Thus, where at a trial it is required to prove a certain contract entered into in writing, the production of that writing itself is the best or primary evidence, and a copy or merely parol evidence of what that contract contains is secondary evidence. It is a rule in every case, subject Primary to some exceptions, that the best or primary evidence possfbietmust^ must be given (e) ; thus, in our instance of proof re- ^^ °^^®°- quired to be given of a contract that has been entered into, if it is in the power of the party requiring to prove it, to produce the original contract, he must do so, for if he can, then he is not permitted to give proof of it otherwise than by the very contract itself. " The rule Eeason of the is founded on the presumption that if inferior evidence ^" '^' is offered when evidence of a better and more original nature is attainable, the substitution of the former for the latter arises either from fraud or from gross negli- gence, which is tantamount to fraud. Thus, if a copy of a deed or will be tendered when the original exists and is producible, it is reasonable to assume that the person who might have produced the original, but omits (c) Brown's Law Diet. 212. {d) Ibid. (e) Powell's Evidence, 63. 2 G 466 OF EVIDENCE IN CIVIL CASES. to produce it, has some private and interested motive for rendering a copy in its place " (/). A person though not having prim,ary evidence in his own possession, must do all he can to obtain it. Notice to produce. And although a person may not have the best or primary evidence actually in his possession or power, yet if he can by any means cause its production he is bound to do so {g). This is well shewn by the fact that if at the trial of an action one of the parties rests his evidence upon some writing in his opponent's possession, before he can give in evidence a copy of it, or parol evidence of its contents, he must give to the other party a notice to produce the original, and then, if it is not produced, having done all in his power to get the best or primary evidence, he is allowed to give secondary evidence. This notice to produce is practically given before the trial of nearly every action, there generally being some documents in the opponent's possession which the other party considers ought to be laid before the jury (A). There are no degrees of secondary evidence. There are no degrees of secondary evidence ; when a person has done everything he can to get the best or primary evidence, and thus entitled himself to give secondary evidence, it may be of any kind (t). Thus, if an original writing cannot be produced, the party may give as secondary evidence either a copy of it, or oral evidence of its contents, though, of course, in such a case it would always be preferable to give the copy, as being, from its greater certainty, entitled to more credence. When a document requiring to be proved is in a third Although if a person gives his opponent notice to produce a deed or other document, and this is not done, he may give secondary evidence of its contents ; (/) Powell's Evidence, 63. (f/) Ibid. 396. (A) As to the notice to inspect and admit usually given before going to trial, see post, p. 482. See also as to both these notices, Indermaur's Manual of Practice, 131, 132. (t) Powell's Evidence, 396, 397. OF EVIDENCE IN CIVIL CASES. 467 yet if the document is not in that opponent's possession, person's but in the possession of a third person, not a party to sw^pcma duces the action, here his proper course is to issue a suhpcena ■g^^g^™"^*^'^ duces tecum for such person to attend and produce it. If on such subpoena the witness refuses to produce the deed or document in question, that does not entitle the plaintiff or defendant to give secondary evidence, unless the witness was under no legal obligation to produce the document; (k). There are, however, some exceptions to the strict rule Exceptions to as to the non-admissibility of secondary evidence, e.g. non-admissi- the probate of a will (l) ; an office copy of a duly secondary enrolled bargain and sale (m) ; various documents e\adence. in the case of companies {%) ; and in particular copies of entries in bankers' books (0). As regards the last-mentioned, it is provided by the Bankers' Books Evidence Act, 1879 (ji), that a copy of an entry in Bankers' Books a banker's book {q) shall in all legal proceedings be is^g.^ '^^ ° ' received as primd facie evidence of entries therein, provided that the book was at the time of the entry one of the ordinary books of the bank, that the entry was made in the usual course of business, that the book is in the custody and control of the bank, and also provided that the copy is duly proved, either orally or by affidavit, to be a true copy, by some person who has examined the copy with the original entry. In all cases in which the bank is not a party to the action, the banker or officer of the bank cannot be compelled to produce his books unless specially ordered to do so, but this course must be adopted. If the banker will not voluntarily produce books or (k) Jesus College v. Gibhs, i Y. & C. 156. (l) See ^os^, pp. 484, 485. (m) 27 Henry 8, c. 16. {11) 40 & 41 Vict, c, 26. (0) 42 Vict. 0. II. ip) Sects. 3, 4, 5. (9) This applies even as regards the accounts of third persons, strangers to the action {Howard v. Beall, 23 Q. B. D. i ; 58 L. J. Q. B. 384 ; 60 L. T. 637). 468 OF EVIDENCE IN CIVIL CASES. entries to a party to an action, an order may be obtained for production, and for liberty to take copies of entries (r). An application for such an order may in a proper case be made ex parte, but should ordinarily be made by summons (s). Definition of hearsay- evidence. Another kind of evidence that is sometimes, thourrh not usually, allowed to be given is hearsay evidence, which lias been well defined or described as some " oral or written statement of a person who is not produced in court, conveyed to the court either by a witness or by the instrumentality of a document " {t). If a person appears in court and himself on oath deposes to a cer- tain fact, this evidence is at first hand ; but if a witness appears and deposes that a person told him a certain fact, or if a writing by some person stating a fact is produced, this is only at secondhand, and is hearsay evidence. Reason of The general rule as to hearsay evidence is that it is evi^dence not ^^^t admissible, upon the ground that it really is not on Sftte!r™^^^ oath at all, and therefore is not entitled to credibility {u)\ so that a witness stating that he was told such and such a fact is at once stopped, an^ not allowed further Cases in which to proceed with that testimony. In some cases, how- evidence is ever, hearsay evidence is, contrary to the general rule, admitted. admitted, apparently upon the principle that were it not, no possible proof of the matters could be given. The following are the chief cases in which it is so admitted : — I. In matter? of public or general interest. I. It is admitted in matters of public or general interest, though not in any matter of merely private right {x). Here the fact of a popular reputation or (r) 42 Vict. c. II, ss. 6, 7, 8, II. (s) Davies v. White, 53 L. J. Q. B. 275 ; 32 W. R. 320 ; Arnott v. Hayes, 37 Ch. D. 731 ; 56 L. J. Ch. 844 ; 59 L. T. 299. {t) Powell's Evidence, 157. (m) Ibid ; Doe d. Didsbtiry v. TJwmas, 2 S. L. C. 541 ; 14 East, 323. (x) Powell's Evidence, 170-185. OF EVIDENCE IN CIVIL CASES. 469 opinion upon the matter, or a statement made by some deceased person of competent knowledge, before any dispute arose, may be given in evidence, the par- ticular reason for this being, that matters of public and general interest are usually of a very ancient date, and consequently there is a great difficulty in obtaining direct testimony as to their existence, and also because a general reputation in a matter in which many are interested, existing when there was no dispute as to that right, is likely to be true {y). Thus, traditionary reputation of boundaries between two parishes may be given in evidence, for this is a matter of public and general interest to the persons dwelling there {z). But it must be clearly borne in mind that this case of the admissibility of hearsay evidence does not extend to merely private rights ; thus, evidence of reputation of a boundary between two estates has been rejected, because it is a matter which only affects the respective owners {a). 2. In questions of pedigree hearsay evidence is 2. in matters sometimes admitted (&). Here, if no better proof ° ^^^ '^^^' can be found, evidence may be given of the common reputation in the family, or of any declaration or statement of any deceased relatives ; thus, common reputation in a family to prove who was the ancestor of a member of it is admissible, or to prove how many children that ancestor had (c) ; and in a case where it was desired to prove that a member of the family had not been married, Lord Ellenborough said, " What other proof could the plaintiff be expected to produce that such person had not been married than that none of the family had ever heard that he was ? " {d). (y) 2 s. L. c. 548. {2) See note to Doe d. Lidshury v. Thomas, 15 East, 331. (a) Ibid. {h) Powell's Evidence, 193-204. (c) Bull, N. P., 294, cited 15 East, 294 n. See also Re Ferton deceased, Pearson v. Attorney-Qeneral, 53 L. T. 707. (d) Doe d. Bcmninrj v. Griffin, 15 East, 293. 470 OF EVIDENCE IX CIVIL CASES. Under this bead, too, entries in old family Bibles or in Prayer-books have been held admissible in evi- dence (e), as also has a genealogy made by a deceased member of the family (/), and inscriptions on tomb- stones (g). r.ut a iieciara- It is important to observe that a declaration made h'caVm'ust be ^ by a person under this head must have been made by a froni a relative j-glative either by blood or marriage, and a person who is marriage. illegitimate is not considered as a relation (h). The person whose declaration or statement is tendered must be proved to be dead, otherwise his declaration cannot be admitted (i). It is not necessary that the declara- tion or statement should have been made at the same time as the event happened (Jc), but it must have been made before the matter came into dispute. Where in an action the direct issue between the parties is a question as to some tolerably recent matter of pedigree, hearsay evidence is not admitted, but strict proof is necessary (/). 3. Incases 3. Hearsay evidence is admissible when it forms parTof the ^ part of the actual transaction (res gcstce) which is the resgestce. subject-matter of the action (w?); thus in an action for assault and battery, words or expressions of intention made use of by the defendant at the time of commit- ting an assault may be given in evidence. And where in an action the legitimacy of the plaintiff was in issue, a witness was allowed to state the declarations and conduct of the deceased mother when questioned as (e) See Berkeley Peerage Case, 4 Camp. 401 ; Sussex Peerage Case, II CI. & Fin. 85. See also In re Lambert, 56 L. J. Ch. 122 ; 56 L. T. 15- (f) Monl-ton v. Attorney -General, 2 Russ. & M. 147. \g) HasJam v. Cron, 19 W. R. 969. (h) Powell's Evidence, 194. (0 Butler V. Mountgarret, 7 H. L. C. 33. {Ic) Monkton v. Attorney-General, supra; and see In the goods of Thompson, 12 P. D. 100 ; 56 L. J. P. 46 ; 35 W. R. 3S4. (/) Berkeley Peerage Case, 4 Camp. 401. (»»)See hereon Powell's Evidence, 162-166. OF EVIDENCE IN CIVIL CASES. 47 1 to the parentage of the child (71). Again, in another case where the legitimacy of a child born in wedlock was in issue, previous statements by the mother that the child was a bastard were held admissible as evidence of her conduct, although she could not have been allowed to make such statements in the witness-box (o), for the rule is that a parent cannot bastardize his or her issue. 4. A declaration or entry by a deceased person who 4. in the case had a competent knowledge of a fact, and no interest ^^ T ^°*'-^' * to pervert it, and which declaration was against the person's . , . ^ , „ , , , , pecuniary or pecuniary or proprietary interest of the declarant at proprietary the time when it was made, is evidence between third '"*^'^®^*- parties of everything stated in the declaration (jj). The leading case upon this principle is that of Higham Higham v. v. Ridgioay (q). In that case it was necessary to ^'''^^"^• prove the precise date of the birth of one William Fowden, and to prove this an entry made by a man- midwife (since deceased), who had delivered the mother, of his having done so on a certain day, and referring to his ledger, in which he had made a charge for his attendance, which ivas marked as paid, was tendered in evidence. It was decided that, though it was, of course, not testimony on oath, yet it could be received, because the fact of the entry of payment made it an entry against the pecuniary interest of the party (r). {n) Ilanjrave v. Hargrave, 2 C. & K. 701. It may be mentioned that this third instance of hearsay evidence is not treated as hearsay in Powell on Evidence, but it has been thought advisable to treat it so here. (0) The Ayhsford Peerage, 11 App. Cas. i; see also Re Perton deceased, Pearson v. Attorney-General, 53 L. T. 707 ; Barnahy v. Bailee, 42 Ch. D. 2S2 ; 58 L. J. Ch. 842 ; 61 L. T. 634. {p) Powell's Evidence, 214-225. iq) 2 S. L. C. 348 ; I East, 109. (r) As illustrative of what is and what is not an entry against in- terest, see Vivian v. Moat, Vivian v. Walker, 29 W. R. 504 ; 44 L. T. 210. See also Connor v. Fitzgerald, li L. R. Ir. 106, where an entry was admitted on this ground. 472 OF EVIDENCE IN CIVIL CASES. Remarks on Hifjham v. Ridgicay. It will be noticed that iu this case the portion of the entry that was really required as evidence, viz. the fact of the delivery of the mother of the child, was not at all against the party's interest ; the part that was against his interest was the acknowledgment of the payment of the charge for attendance. The case, therefore, clearly shews that it is quite sufficient for any part of an entry to be against a person's interest to render the whole of it admissible in evi- dence (s). On this point there is an important dis- tinction between this and the case that will be next mentioned {t). Although the case of Higham v. Bidgway only goes to entries against a person's 'pecuniary interest, yet the rule equally applies where the entry is against a proprietary interest, but the interest must he either of a pecuniary or proprietary character {li). As to an entry against interest, forming also the only evidence of that interest. Where a declaration or entry against interest is also the only evidence of the existence of the interest against which it tends, it was formerly held that the entry was not admissible {x). This decision, however, cannot be considered as good law at the present day, and the rule must be taken simply to be, that where an entry by a deceased person is primd facie a clear entry against interest, it is always admissible in evidence for what it is worth (y). Proof of a declaration. In the case of a declaration or entry coming within the rule as being an admission against interest, proof of the handwriting of the party, and his death, is (s) See also jicr Pollock, C.B., Peixival v. Aanson, 7 Ex. i. (t) See post, p. 473. {^l) 2 S. L. C. 366 ; Per Cockburn, C.J., Per/, v. Birmingham, I B. & S. 768 ; Bcwky v. AtJcinson, 13 Ch. D. 283 ; 49 L. J. Ch. 153 ; 28 W. R. 63S. {x) Doe V. Gallop v. Vowles, i M. & Eob. 261. (y) Taylor v. Witham, 3 Ch. D. 605 ; 35 L. J. Ch. 798, in which case Jessel, M.R.. expressly disapproved of Doe d. Gallop v. Vowks, supra. Powell's Evidence, 221, 222. OF EVIDENCE IN CIVIL CASES. 473 enough, to authorize its reception, and at whatever time it was made it is admissible (z). 5. A declaration or entry made by a person strictly 5. in the case in the course of his trade or business, and in perform- ^^ade \n the ance of his duty, and without any apparent interest on f^upe of •' ^ IT r business, and his part to misrepresent the truth, if contemporaneous in discharge with the fact, is evidence after his death against third '^ " ^' persons (a). The entry or declaration must have been made both in the course of business and in discharge of duty (h). The leading case upon this principle is that of Fi'ice v. Earl of Torrington (c). The plaintiff Price v, Eari there was a brewer, and the action w;is for beer sold "■^ '^(>'>">'^'^9ton. and delivered to the defendant. The evidence given to charge the defendant was, that the plaintiff's drayman, who had since died, had in the usual course of his business, and in discharge of his duty, made and signed a note of the fact of the delivery of the beer in a book kept for that purpose. It was held that this was good evidence and admissible. This class of cases is entirely distinct from that Distinction previously mentioned where the entry is admitted as efa^^oTc^es against interest. Here the entry is not admitted at all ^^^^ *^^ P^e- . vious one. on that ground, but simply on the ground of duty and course of business ; it must also be carefully noted that here, unlike that other class of cases, only so much of the entry is admitted as it was in the course of the person's ordinary business and duty to make, and no matter in the entry extraneous to this can be admitted (d). In the case of an entry falling under this rule it is The entry essential to prove that it was made at the time it pur- temporaneous {z) Per Parke, B., Doc v. Turforcl, 3 B. & A. 898. (a) Powell's Evidence, 226-236. {h) Massey v. Alhii, 13 Ch. D. 55S ; 47 L. J. Ch. 76 ; 28 W. R. 212 ; Trotter v. Maclean, 13 Ch. D. 574 ; 42 L. T. 118 ; 28 W. R. 244. (c) I S. L. C. 452 ; Salkeld, 285. (d) Reg. \ . Birmingham, i B. & S. 763 ; see also i S. L. C. 354-35S. 474 OF EVIDENCE IX CIVIL CASES. This and the previous class of cases include oral statements. Reputation. Presumptions sometimes furnish evidence. Presumption as to death after seven years. ports to bear date, for it must be a contemporaneous entry (e). In both this class of cases and that in which the matter is admitted as against interest, not only are statements in writing admitted, but any oral statement made by a person agaiust his interest, or in the course of bis business and duty, is also equally admissible (/). There is no distinction in principle between the written entries of a deceased person and his verbal declarations. Where the statements are merely verbal, there is reason for watching more carefully the evidence by which those declarations are proved, but if it is clearly shewn that they were in fact made, there is no reason whatever why there should be any distinction between the admissi- bility of the verbal declarations and of the written entries (g). Evidence of general reputation, general character, and general notoriety is original evidence and not hearsay, so that general evidence is admissible to prove marriage, except in prosecutions for bigamy or in divorce proceedings (/t). Presumptions sometimes furnish evidence. Thus, it is a rule that where a person goes abroad and is not heard of for seven years, the law presumes that such person is dead, but not that he died at the beginning or the end of any particular period during those seven years (i). This, however, is of course liable to be rebutted, and although, as stated above, (e) Per Parke, J., Doe v. Turford, 3 B. & A. 89S. If) See Sussex Peerage Case, li C. & F. 85 ; Staplyton v. Clough, 2 E. & B. 933 ; and 2 S. L. C. 353. (7) Per Thesiger, L.J., in Bexoley v. Atkinson, 13 Ch. D. 283 ; 49 L. J. Ch. 153; 28 W. R. 638. {h) Powell's Evidence, 167. (i) Nepcan v. Doe, 2 S. L. C. 610 ; 2 M. & W. 910 ; In re Rhodes, Rhodes v. Rhodes, 36 Ch. D. 586 ; 56 L. J. Ch. 825 ; 57 L. T. 652. OF EVIDENCE IN CIVIL CASES. 475 there is no presumption of the time of death, such a presumption may arise from particular circum- stances (k). This is, however, purely matter of evi- dence, and the onus of proving that the death took place at any particular time within the seven years, lies upon the person who claims the right to the establishment of which the fact is essential. There is also no presumption of law in favour of the con- tinuance of life, though an inference of fact may legitimately be drawn that a person alive and in health on a certain day was alive a short time afterwards (I). It has also been held that where a person has not been heard of for seven years, and during that period — that is, before the expiration of the seven years — a gift is made to him, he must, until the contrary is shewn, be taken to have been in existence at the date of the gift, and if the contrary cannot be shewn, there is no failure of the gift, but it will go to his repre- sentatives (???). Deeds and other documents, until the contrary is Deeds, &c., shewn, are presumed to have been executed or written f ^^ piesumed •^ to have been at the date they bear (n). executed at their date. Public records and documents (0) are evidence of Deeds and their own authenticity, and deeds or wills which are la'jgg'^fj.^'jjl'^ thirty years old, and come from the proper custody y^'^^^^ ^^^ P .1 . .1- 1 ■ 1 • , coming from or trom that custody in which it was most reasonable the proper to expect to find them, prove themselves (p). The theSjr''^ (k) See In the goods of Thompson, 12 P. D. 100 ; 56 L. J. P. 46 ; 36 >V. R. 3*4- (1) Winrj V. Angravc, 8 H. of L. Cas. 183 ; In re Phene, L. R. 5 Ch. 239 ; 39 L. J. Ch. 316 ; Hichnan v. UpsaU, L. R. 20 Eq. 136. (m) In re Covbishlcy's Trusts, 14 Ch. D. 846 ; 49 L. J. Ch. 266 • 28 W. R. 536. (n) Powell's Evidence, 85. (0) As to what are public documents, see Sturia v. Freccia, 5 App. Cas. 623 ; 50 L. J. Ch. 86 ; 29 W. R. 217 ; Broole v. Brooke, 17 Ch. D. 833 ; 50 L. J. Ch. 528 ; 30 \V. R. 45 ; Mayor of Manchester v. Lyons, 22 Ch. D. 299 ; Bidder v. Bridges, 34 W. R. 514 ; 54 L. T. 529, affirmed by Court of Appeal, W. N. 1886, p. 148. As to proof of Acts of Parliament, proclamations, &c., see also 45 Vict. c. 9. [p) Powell's Evidence, 88. 476 OF EVIDENCE IN CIVIL CASES. thirty years are computed from the date of the instru- ment, even in the case of a will (j). II. As to the II. As to the competency of witnesses and the admissi- 3estes,''&c. ^ility ofparticidar evidence. As a general rule, every person is a competent wit- Atheists, ness in an action. Formerly, however, an atheist was incapable of giving evidence, because he was unable to take an oath, the rule being that for a person to take an oath it is necessary that he should believe in the ex- istence of a God who would punish in a future state (r). Oaths Act, However, it is now provided by the Oaths Act, 1 888 (s), that every person who objects to be sworn on the ground that he has no religious belief, or that the taking of an oath is contrary to his religious belief, may make a solemn afhrmatiou instead of taking an oath, in all places and for all purposes where an oath is or shall be required by law, and that if such person shall wilfully, lalsely, and corruptly affirm anything that, if on oath, would amount to perjury, he shall be liable to prosecution as if he had committed perjury. On this enactment it has been decided that where a witness is desirous of making an affirmation instead of taking an oath, it is the duty of the judge presiding at the trial to himself examine the witness, and ascertain that he objects to being sworn on the ground either that he has no religious belief, or that the taking of an oath is contrary to his religious belief {t). [q) M'Kcnire v. Frascr, 9 Yes. 5. On presumptive evidence generally, see Powell's Evidence, 70-I10. See also, as to presumption between vendor and purchaser of correctness of facts recited in deeds twenty years old, 37 & 38 Vict. c. 78, s. 2. See also further, as to the general effect of recitals as between vendor and purchaser, 44 & 45 Vict. c. 4I, s. 3 (3)- {r) Omichund v. Barlcer (Willes, 550) decided that if a witness be- lieved in a God who would punish in this world, that was sufficient, but in subsequent cases it was laid down as stated in the text. (s) 51 & 52 Vict. c. 46, repealing the previous provision of 32 & 33 Vict. c. 68, s. 4. [t) Reg. v. Moore, 61 L. J. M. C. So ; 66 L. T. 125 ; 40 W. R. 304 ; Powell's Evidence, 32. OF EVIDENCE IN CmL CASES. 477 Persons who were infamous, — as criminals, — were Criminals or formerly inadmissible as witnesses, but it is now pro- E^fam^uf vided that no person shall be excluded from giving character were • J 1 . • p • / X 00 formerly ex- evidence by mcapacity from crime {u). Any person, eluded from therefore, whatever he may have been guilty of, is com- evkrence, but petent as a witness, and it is for the jury to say to what ^"^^ "°* "^^• extent they will credit his testimony. In some cases it may be important to bring before the jury the fact of the witness's crime or bad character, to show that he is not worthy of credence ; and it has been provided that a witness in any case may be questioned as to whether he has been convicted of any felony or misdemeanour, and upon being so questioned, if he either denies the fact, or refuses to answer, it shall be lawful for the opposite party to prove his conviction {x) ; and this may be done although the fact of the conviction be altogether irrelevant to the matter in issue in the cause {y). It is also, irrespective of this enactment, quite open to a party to examine a witness on points affecting his char- acter, or tending to discredit him ; but if he denies such points, the evidence of other witnesses to contradict him is not admissible, unless the fact sought to be established is material to the issue (s). A party producing a witness who deposes contrary to Contradictiou what was expected, is not allowed to impeach the credit ^u^n'^ei'!''^'^^^ of his own witness by giving general evidence of his bad character ; but he may, in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony, the circumstances of such state- ment being first mentioned to him, and he being asked (m) 6 & 7 Vict. c. 85, s. I (Lord Denman's Act) ; Powell's Evidence, 35- (x) 17 & 18 Vict. c. 125, s. 25. (y) Ward v. Sinfidd, 49 L. J. C. P. 696 ; 43 L. T. 252, {z) See notes in Day's Common Law Procedure Acts to section 25 of 17 & 18 Vict, c. 125. 478 OF EVIDENCE IN CIYIL CASES. Persons interested in the result of an action were formerly excluded from giving evidence, but not now. I'rovision of the Evidence Amendment Act, 1869. whether or not he has made such statement (a), and if, on being so asked, he does not admit that he made such statement, proof may be given that he did (h). Where any witness has made a previous contrary statement in writing, in cross-examining on it it is not necessary to shew him the writing, but if it is intended afterwards to contradict him by such writing, then, before the con- tradictory proof can be given, his attention must first be called to those parts of the writing which are to be used for the purpose of so contradicting him (c). Persons were also formerly excluded from giving evidence if in any way interested in the result of the action, either as parties or otherwise (d), but this is not so now. The first provision on the subject was made by Lord Denman's Act (c), which provided that no person offered as a witness should be thereafter ex- cluded from giving evidence by reason of incapacity from interest, but this was not to extend to render competent any person actually a party to any suit, action, or proceeding (/). By a later Act (g), however, it was provided that even the parties to any action should be both competent and compellable witnesses (h), except in proceedings instituted in consequence of adultery, or in actions of breach of promise of mar- riage (i). And it has now been provided by the Evidence Amendment Act, 1869 (k), that the parties to any action for breach of promise of marriage shall be competent to give evidence in such action, provided, however, that no plaintiff in any such action shall recover a verdict unless his or her testimony shall be (rt) 17 & 18 Vict. c. 125, s. 2 (6) Sect. 23. (c) Sect. 24. (d) Powell's Evidence, 35. (e) 6 & 7 Vict. c. 85. (/)Sect. I. (g) 14 & 15 Vict. c. 99. (h) Sect. 2. {{) 14 & 15 Vict. c. 99, s. 4. {k) 32 & 33 Vict. c. 68. OF EVIDENCE IN CIVIL CASES. 479 corroborated by some other material evidence in support of such promise (I) ; and that the parties to any pro- ceedings instituted in consequence of adultery, and the husbands and wives of such parties, shall be competent to give evidence in such proceeding ; provided that no witness in any proceeding, whether a party to the suit or not, shall be liable to be asked, or bound to answer, any question tending to shew that he or she has been guilty of adultery, unless such witness shall have already given evidence in the same proceeding in dis- proof of his or her alleged adultery (?n). Not only were the actual parties to actions excluded Husbands and from giving evidence, but the rule applied to the hus- witnesses. bands and wives of such witnesses (w), but this is not so now (0). The Act upon this subject, however, also provides that no husband shall be compellable to dis- close any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her by her husband during the marriage (2)). An idiot is incapable of giving evidence (q), and so (I) 32 & 33 Vict. c. 68, s. 2. (m) Sect. 3. The student will bear in mind that what is stated above as to parties to proceedings giving evidence is not applicable to criminal law. A prisoner is not capable of giving testimony for himself — of course the prosecutor may. There are, however, excep- tions, c.fj. it isprovided by 40 & 41 Vict. c. 14, s. i, that on the trial of any indictment or other proceeding for the non-repair of any public highway or bridge, or for a nuisance to any public highway, river, or bridge, and of any other indictment or proceeding instituted for the purpose of trying or enforcing a civil right only, every defen- dant to such indictment or proceeding, and the wife or husband of such defendant, shall be admissible witnesses, and compellable to give evi- dence. See also the Criminal Law Amendment Act, 1885 (48 & 49 Vict. c. 69, s. 20). See also further hereon Powell's Evidence, 48-52. (n) See Powell's Evidence, 48. (0) 16 & 17 Vict. c. 83, s. 2. Under the Married Women's Property Acts, 1882 (45 & 46 Vict. c. 75, s. 12) and 1884 (47 & 48 Vict. c. 14, s. I), in any proceeding, civil or criminal, under the Act of 1882, a husband and wife are rendered competent to give evidence against each other. As to the omission from the Act of 1882 which gave rise to the Act of 1884, see Beg, v. Brittlcton, 12 Q. B. D. 266. (p) 16 & 17 Vict. c. 83, 8. 3. See sect. 4 as to criminal cases. (q) Powell's Evidence, 27. 48o OF EVIDENCE IN CIYIL CASES. An idiot cannot give evidence, nor can a lunatic, except during a lucid interval. A deaf and dumb person can give evidence. is a lunatic, except during a lucid interval, when, if duly proved that it is a lucid interval, he is a perfectly competent witness (r). A deaf and dumb person is a competent witness through the means of signs, or by an interpreter, if it seems that he has sufficient understanding (s). As to the testimony of children. Children may or may not be competent witnesses, the matter entirely depending upon whether they have sufficient intelligence. " Age is immaterial, and the question is entirely one of intelligence, which, whenever a doubt arises, the Court will ascertain to its own satisfaction by examining the infant on his knowledge of the obligation of an oath, and the religious and secular penalties of perjury. Although tender age is no objection to the infant's competency, he cannot, when wholly destitute of religious educa- tion, be made competent by being superficially instructed just before a trial with a view to qualify him. A judge may, in his discretion, postpone a trial in order that a witness may be instructed in the nature of an oath, but the inclination of judges is against this practice " (t). It has been stated that deeds and other documents thirty years old, and coming from the proper custody, prove themselves (w) ; in cases when this is not so it is important to understand the different ways in which they may be proved. (r) Powell's Evidence. The distinction between an idiot and a lunatic is, that the former has always, even from his birth, been devoid of understanding, whilst the latter has by some subsequent event been deprived of it ; see also ante, pp. 252, 253. (s) Powell's Evidence, 2S. {t) Powell's Evidence, 29. Under the Criminal Law Amendment Act, 1SS5, a child may give evidence though not understanding the nature of an oath, and the child need not be sworn. Such child's evidence must, however, be corroborated (48 & 49 Vict. c. 69, s. 4). (?t) Ante, p. 475. OF EVIDENCE IN CIVIL CASES. 481 "It was a common law principle that where a writing it is not now was attested, the witnesses, or one of them, must be caiTan attest- called to prove the execution of the instrument ; and J"" 7^*"®^^ it was not competent to a party to prove it even by instrument . . n 1 ^ 1 • "^ot requiring the admission of the persons by whom it was exe- attestation. cuted " (x). The most apt and usual way even now of proving any instrument which has been attested is un- doubtedly, in the absence of admission, by calling the attesting witness ; but this is not generally absolutely necessary, it having been provided that " it shall not be necessary to prove by the attesting witness any instrument to the validity of ivJiich attestation is not requisite, and such instrument may be proved by ad- mission or otherwise, as if there had been no attesting witness thereto " (y). Instruments, therefore, not requiring attestation may Different ways , T . /> j_i I! n • in which sucli be proved in any 01 the following ways : — instruments not requiring -p, J • • attestation 1. i5y admission. may be provetl. 2. By calling the attesting witness, if there is one. 3. By calling any person who actually saw the writing or signing, or the party who wrote it or signed it himself. 4. By calling a witness who has acquired a know- ledge of the writing in question by having seen the person write at some other time, even though only once, or by having had correspondence with such person which has been acted upon. 5. By comparison of the writing in question with any writing proved to the satisfaction of the judge to be genuine (2). (x) Powell's Evidence, 403. (y) 17 & 18 Vict. c. 125, s. 26 ; see, however, on this enactment, Jn re Rice, 32 Ch. D. 35 ; 55 L. J. Ch. 799 ; 54 L. T. 589 ; 34 W. R. 749. (z) Powell's Evidence, 399, 400. 2 H 482 OF EVIDENCE IN CIVIL CASES. Notice to inspect and admit. As to the first of the above modes of proof, it may be mentioned that a notice to inspect and admit, i.e. a notice to the other party or parties to the action to inspect some document and admit its execution, is usually given just before the trial of most actions ; the other party or parties can then inspect the docu- ment, and give an admission, and this saves further proof of execution, and in case of refusal or neglect to admit, the costs of proving the document have to be borne by the party so neglecting or refusing, what- ever may be the result of the action, unless at the trial the judge certifies that the refusal to admit was reasonable ; and no costs of proving any document is allowed unless such notice has been given, unless in the opinion of the taxing-master the omission to give the notice has been a saving of expense (a). The object, therefore, of giving this notice is to get the document admitted, or to throw the expense of irs proof on the opponent or opponents (&). Menning of an admission being made " saving all just excep- tions.'' As to pi'oof by comparison of handwriting. An y admission made under such a notice as is last mentioned is made " saving all just exceptions " (c), that is, that the party admits nothing more than the bare execution, so that, for instance, the admission by a person of his handwriting to a bill, has been held not to preclude him from objecting to its admissibility in evidence on the ground of its being unstamped (d). The last of the before-mentioned modes of proof of handwriting, viz. by comparsion with other writings by the same person proved or admitted to be genuine, was not formerly allowed (e), but it is now otherwise by reason of the provisions of the Common Law Procedure (a) 15 & 16 Vict. c. 76, s. 117. (6) As to the notice to produce usually given before going to trial, see ante, p. 466 ; and as to both notices, see Indermaur's Manual of Practice, 131, 132. Also as to a notice to admit facts, see Order XXXII. rule 4 ; Indermaur's Manual of Practice, 87. (c) 15 & 16 Vict. c. 76, s. 117. (d) Vane v. WhiUington, 2 Dowl. (N. S.) 757. (e) Doe d. Mudd v. Sackermore, 5 A. &. E. 703. OF EVIDENCE IN CIVIL CASES. 483 Act, 1854 (/). Under this enactment experts may be called, quite unconnected with the writer, to prove that by a comparison, and a careful observance of the different letters, and the general style, with a document or documents proved or admitted to be genuine, they are of opinion that the handwriting in question is the work of the same person ; this kind of evidence, however, from its manifest uncertainty, has, of late years been much disfavoured. Eor the purpose of comparison the disputed writing must always be produced in court, so that the enactment does not apply to documents which are not produced, and of which it is sought to give secondary evidence {g). But where attestation is necessary to the validity of To prove an instrument, and actual proof is required of it, the iTtuaiiy^''*'' attesting witness, or one of the attesting witnesses, if requiring living, must be called as a witness (A). The student is tte attesting reminded that some of the chief instruments requiring be*c" UedT"" attestation are wills and codicils to wills {i), warrants of attorney and cognovits {k), bills of sale {l\ and powers of appointment, and other instruments which the person giving the authority for their execution has directed shall be attested (m). When, however, an unless dead, attesting witness is dead or abroad, or for some other not'to'S' °'" reason cannot be produced after due efforts to brinf^ found, him before the Court, evidence of his handwriting may be given ; and if there are several attesting witnesses who cannot be produced, generally it is sufficient to prove the handwriting of one of such witnesses {%). (/) 17 & 18 Vict. c. 125, s. 27. (f/) See Day's Common Law Procedure Acts, notes to sect. 27 of 17 & 18 Vict. c. 125. (A) ]Vhyman v. Garth, 8 Ex. 803. (i) I Vict. c. 26, s. 9. (A-) I & 2 Vict. c. 1 10, s. 9 ; 32 & 33 Vict. c. 62, s. 24 ; ante, pp. 9, 10. (0 41 & 42 Vict. c. 31, s. 10 ; 45 & 46 Vict. c. 43, s. 8 : ante, pp. 1 14-122. (m) As to the execution of powers of appointment by will or deed respectively, see i Vict. c. 26, s. 10, and 22 & 23 Vict. c. 35, s. 12. (n) Powell's Evidence, 405 ; and see Baxcndale v. Be Valmer, i;7 L. T. 556. ' ^' 484 OF EVIDENCE IN CIVIL CASES. AVhat it is sufficient for an attesting witness to depose to. Mode of ])rovinf,' :i will at a trial. Notice. Although an attesting witness, on being called to prove the execution of an instrument, states that he does not remember the actual fact of the execution, but yet he deposes that, seeing his signature to the attesta- tion, he is therefore sure he saw the party execute the deed or sign the document, this is quite sufficient proof of the execution (o). For all ordinary matters, probate of a will, or, if lost, an examined copy or an exemplification, is the proper evidence (j)). In the case, however, of an action involving the question of title to lands, or any descrip- tion of realty, it was formerly necessary to produce the original will (q), but it has been now provided that in any action, where necessary to establish a devise of or affecting real estate, it shall be lawful for the party intending to establish in proof such devise, to give to the opposite party, ten days at least before the trial, notice that he intends at the trial to give in evidence, as proof of the devise, probate of the said will, or administration with the will annexed, or a copy there- of, stamped with any seal of the Probate Court (r) ; and in every such case such probate or letters of administration, or copy thereof respectively, stamped as aforesaid, shall be sufficient evidence of the will and its validity, notwithstanding the same may not have been proved in solemn form, unless the party receiv- ing such notice shall, within four days after such receipt, give notice that he disputes the validity of such devise (s). This enactment was intended to prevent expense, it being also provided that where the original will is produced and proved, the Court or judge before whom the evidence is given shall direct (o) Per Bayley, J., Maugham v. Hubbard, 8 B. & C. l6 ; Powell's Evidence, 405. (p) Powell's Evidence, 362, 363. (q) Ibid. 364, 365. (r) Now the Probate, Divorce, and Admiralty Division of the High Court of Justice. (s) 20 & 21 Vict. c. 77, s. 64. OF EVIDENCE IN CIVIL CASES. 485 which of the parties shall bear the costs thereof (t). It has been decided that even iu the absence of a Effect of counter-notice the probate is only sufficient, or primd courtei-uotice, facie evidence, and that, therefore, the party omitting to give such notice is not, on his part, precluded from giving evidence against the validity of the will {u). If the will has been proved in solemn form, it is pro- vided that the probate shall not only be sufficient, but conclusive proof (x). A person is not allowed to make evidence for him- a person is self, so that a person's own books are not evidence to°nmkT^*^ for him, nor, indeed, is anything written, said, or done evidence for \ . . ° Inmself; so, by a person having an interest, any evidence for him, for instance, for this would be self-serving evidence. But many aie^not^ documents and facts, not iu themselves evidence, may ^y^^ence for be admitted to refresh a witness's memory (?/), for here he speaks to the facts from separate knowledge, only assisted from this extraneous matter ; thus, for instance, a witness may refer to his own books of account for this purpose, or to some entry in a diary or other book, and it is not actually necessary that the entry should have been made at the time, but it is sufficient if made shortly afterwards, so that he may be presumed then to have had accurate memory on the point {z). And where any memorandum or entry is produced in court to a witness, such memorandum or entry, or so much thereof as is used to refresh the witness's memory, must be shewn to the opponent, who is entitled to cross-examine on it (a). Witnesses are required to depose to facts, and not There are to give forth mere matters of opinion, but, notwith- of'cTsesTu^' {t) 20 & 21 Vict. c. 77, s. 65. (m) Barraclaurjh v. Greenhough, L. R. 2 Q. B. 612. (x) 20 & 21 Vict. c. 77, s. 62. {y) Powell's Evidence, 406-41 1. {z) Ibid. 410 ; Ueijwood v. Dodson. 44 L. T. 2S5 ; Buxton v. Garjit, 44 L. T. 287. (a) Powell's Evidence, 409. 486 OF EVIDENCE IN CIVIL CASES. which evidence standing this, tliere are many cases in which the opinion partakes in its nature of fact, and is, there- fore, receivahle in evidence. In Mr. Powell's work upon Evidence (h) there are stated to be three classes of cases in which evidence consisting of matters of opinion is receivable, viz. : — consisting of matters of opinion is receivable. 1. On questions of identification; e.f/. in the case of a long-absent claimant of property, or in the case of identification of handwriting. 2. To prove the apparent condition or state of a person or thing ; e.g. iu the case of an assault, to prove from a person's manner his intention, or to prove the state of some building or of some goods the subject of the action. 3. To prove matters strictly of a professional or scientific character, by skilled or scientific witnesses ; e.g. in cases of terms having, in some business or amongst a particular class, a special and peculiar meaning, or in cases where words of a scientific or exceptional character are used, or the comparison of handwriting with other handwriting to tell its genuine- ness. And not only may a witness be called to prove the meaning of terms or matters in his opinion, but even dictionaries or other books may be referred to. The evidence, however, by experts, of matters of opinion, is always received with great caution (c). An affidavit The forcgoiug remarks, of course, apply generally, interlocutory not Only to Oral evidence, but also to affidavits ; but application ^^ ^.^^ iutcrlocutorv motiou an affidavit may contain may contain " •' a statement a Statement founded only on the deponent's belief, thrdepouenfs with the grounds of such belief (d). belief. (b) Page 114. (c) See per Lord Campbell, 10 CI. & Fin. 191 ; and see also ante, p. 482. {d) Order xxxvill. rule 3. OF EVIDENCE IN CIVIL CASES. 487 A document requiring a stamp cannot be given in Effect of the evidence without one, except in criminal proceedings, "f'an ^^^^^^ or for the purpose of proving some collateral or inde- instrument pendent fact (e). There are some instruments which stamp— time require to be stamped before execution, e.g. articles of &c. clerkship to a solicitor; but, generally, after execu- tion fourteen days are allowed within which to stamp an agreement, and thirty days within which to stamp an instrument under seal ; and an instrument executed abroad may be stamped within thirty days after being received in the United Kingdom. If not stamped within these times, the unstamped instrument can only be stamped on payment of the unpaid duty, and a penalty of ^10, and also by way of further penalty, where the unpaid duty exceeds ^10, of interest on such duty at the rate of ^5 per cent, per annum from the day upon which the instrument was first executed up to the time when such interest is equal in amount to the unpaid duty (/). If an instrument is not stamped, or has been Who objects nn ■ .1 . t J.-I i. 1 •, • to insufficiency msuinciently stamped, the opponent may, when it is ^f stamp, tendered in evidence, object to it on that ground ; but, strictly, it is the place of the officer whose duty it is to read the instrument to call the attention of the judge to the fact ; and even then, if the instrument is one which may legally be stamped after execution, it may, on payment to such officer of the amount of the unpaid duty and the aforesaid penalty payable on stamping, and also on payment of a further sum of ^i, be received in evidence, saving all just excep- tions on other grounds (g). III. Cases of Primleqe. — It has been pointed out, ni. Cases of •^ 'J -L privilege. (e) Powell's Evidence, 654. (/) 54 & 55 Vict. c. 39, ss. 14, 15. The Commissioners of Inland Revenue have, however, in special cases, povi^er to remit or reduce the penalty on memorial to them. See ante, p. 307, note (x). Uj) Ibid. 488 OF EVIDENCE IN CIVIL CASES. in discussing the subject of libel and slander, that there are certain circumstances in which a party is privileged to make assertions which in ordinary cases would be libellous or slanderous, but which are from such circumstances prevented from being so (h). So, also, in matters of evidence, generally speaking a wit- ness must answer all questions put to him relating to the subject-matter of the action, or in any way relevant to it ; but there are certain cases in which, from special circumstances, either the witness is privileged from being obliged to disclose the matter, or some third person has a right to object to his doing so. There are two chief cases of privilege, viz. : — 1. Facts that I. A wituess is not compellable to disclose any criminate. matter that may tend to criminate him, or to expose him to a penalty (i) ; and 2. Professional 2. Professional communications between counsel, tions. solicitors, or their clerks, and their clients, made in confidence, cannot be disclosed without the client's consent, nor can a client be compelled to disclose any communication made in confidence to his professional adviser (k). "Who is As to the first class of privilege. The question at to determine .,.,.,, whether oucc presents itself, who is to be the person to judge a'qj^ttion °^ whether or not a question asked has a tendency to may tend criminate or to expose the witness to a penaltv — the to cnmmate ■'• . witness. pcrsou askcd the question, or the presiding judge ? After various conflicting dicta (/) the law may be now (A) See ante, pp. 385-390. (?) Powell's Evidence, 120. (k) Ibid. 12S ; Eadie v. Anderson, 52 L. J. Ch. Si ; 31 W. R. 320 ; 47 L. T. 543. {I) See Fisher v. Ronald, 12 C. B. 762 : Reg. v. Garhett, i Den. 236 ; Reg. V. Boyes, i B. & S. 311 ; and see per Parke, B., in Osborne v. London Docks Co., 10 Ex. 69S. OF EVIDENCE IN CIVIL CASES. 489 stated to be as follows : Where a witness refuses to answer a question put to him on the ground that his answer may tend to criminate him, his mere state- ment of his belief that his answer will have that effect is not enough to excuse him from answeriug, but the Court must be satisfied, from the circumstances of the case, and the nature of the evidence which the witness is called upon to give, that there is reasonable ground to apprehend danger to him from his being compelled to answer. But if it is once made to appear that the witness is in danger, great latitude should be allowed to him in judging for himself of the effect of any par- ticular question. Subject to this reservation, the judge is bound to insist on the witness answering, unless he is satisfied that the answer will tend to place him in peril (m). Where a question is asked a witness which will not a witness is actually tend to criminate him or expose him to any bounu^o^^ penalty, but is yet one the answer to which may tend ^"swer a •,,,.... . question to degrade him, if it is not actually material to the tending to issue, but merely some point tending to affect his ^^** ^ ''"* character, and thus reduce damages, or to have some other incidental effect, he is not bound to answer it (71). This first case of privilege has always been wider in Distinction equity than at law ; for in equity any question the and" quity^as^ answer to which might subject the witness to any to.fii'st^case of pains or penalties, or to ecclesiastical censure, or a forfeiture of interest, has been held to be within the rule (0) ; and it is presumed that, as the rules of equity are now generally to prevail (p), this is now the case in all divisions of the Hi<'h Court of Justice. (711) Ex parte Reynolds, In re Reynolds, 20 Ch. D. 294 ; 51 L. J. Ch. 766 ; 46 L. T. 508 ; 30 W. R. 651. (n) Powell's Evidence, 127. (0) Ibid. 128. {p) Judicature Act, 1S73, s. 25 (11). 490 OF EVIDENCE IN CIVIL CASES. Privilege of a ■wife. The rule of privilege upon this ground extends not only to a man himself, but also to his wife, so that a wife cannot he compelled to answer any question which may expose her husband to such consequences (q). No privilege by reason that answer might exjiose witness to a civil action. A witness may waive his privilege and answer a question tending to criminate liim if he chooses. A witness cannot object to answer any question upon the mere ground that his answer might expose him to a civil action (r). A witness may, of course, waive his privilege and answer at his peril, for he is the party concerned, and if he chooses to waive the privilege that the law allows him, there is nothing to prevent his doing so (s). There are several cases in which it has been expressly provided by different statutes that a witness cannot refuse to answer questions as to certain matters on the ground that the answers would criminate him, but that such answers shall not be used against liim in a criminal ]iroceeding arising out of the same transac- tion (t). With regard to a bankrupt being examined under the Bankruptcy Act, 1883, as to his property, lie is bound to make the fullest disclosure, and is not entitled to any privilege on the ground that his answer may tend to criminate him (?<). In the case of professional communica- As to the second chief ground of privilege, this is of a very different nature, for in the first case the (5) Cartwright v. Green, 8 Ves. 410; Powell's Evidence, 118. (r) Powell's Evidence, 123, 124. (s) Ibid. 123. (t) Powell's Evidence, 124, 125. Thus in an inquiry under the Ex- plosive Substances Act, 18S2 (46 Vict. c. 3), a witness examined there- under is not excused from answering any question on the ground that the answer thereto may criminate or tend to criminate him ; but any statement made by any person in answer to any question put to him on such an examination is not, except in the case of an indictment or other criminal proceeding for perjury, admissible in evidence against him in any proceeding, civil or criminal. (Sect. 6 (2).) («) Ex parte Schofield, Re Firth, 6 Ch. D. 230 ; 46 L. J. Bk. 112. As regards frauds by agents, bankers, or factors, it is, however, pro- vided that a statement or admission made by any person in any com- pulsory examination in bankruptcy shall not be evidence against that person in any proceeding in respect of any such offence (53 & 54 Vict. c. 71, s. 27). OF EVIDENCE 1^ CIVIL CASES. 491 privilege is always that of the witness, which he may tions the at his option waive, but in this case, where counsel, the^cnfut'I solicitors, or their clerks are witnesses, the privilege is not theirs, but that of their client, and it is not in such a case the witness who may waive the privilege, but the client ; and if the client does not so waive it, then the witness is not allowed to make any such dis- closure (x). And for this case of privilege to exist, it in cases of is not necessary that the position of solicitor and client u'pou this should be actually subsistincr at the time; it is quite s™"^^ the ...•'. '--' ^ ^ relationship sufficient if it has existed at some past time, and the of solicitor communication in question took place whilst that re- neeci'uot be lationship existed. This rule of privilege is founded the^time*^*^ upon principles of public policy, for if some such rule did not exist, no man would know what he was safe in Eqi. v. c,>x disclosing to his professional adviser (y). However, it "" ^<»»''on. must be borne in mind that a communication made by a client to his solicitor, not with the view of obtaininji advice, but for the purpose of obtaining information upon some matter of fact, or for some purpose other than in the ordinary position of solicitor and client, is not privileged {z) ; and also that professional con- fidence and professional employment are essential to render communications between solicitors and their clients privileged. Where, therefore, the client has a criminal object in view in his communication with his solicitor, one of these elements nnist necessarily be absent, and a communication between a solicitor and his client, which was a step preparatory to the com- mission of a criminal offence, is admissible as evidence in the prosecution of the client for such offence {a). A solicitor employed to obtain the execution of a Solicitor, deed, and who is one of the witnesses, is not precluded. (x) Wilson V. RastaU, 4 T. R. 759. (y) See per Lord Brougham, Bolton v. Corporation of Liverpool, i M. & K. 84. {z) See Powell's Evidence, 140, 141 ; O'Shea v. Wood, 65 L. T. 30. (a) Beg. v. Cox and Radton, 14 Q. B. D. 153 ; 54 L. J. M. C. 41 ; 52 L. T. 25 ; 33 W. R. 396. an attestuiE witness, may give evidence. 492 OF EVIDENCE IN CIVIL CASES. on the ground of breacli of professional confidence, from giving evidence as to what passed at the time of execution, by which the deed may be proved invalid (b). A client also cannot be compelled to disclose confidential communica- tions made to Lis pro- fessional adviser. The student will observe that part of the rule in this class of cases of privilege is also that a client cannot be compelled to disclose any communication made in confidence to his professional adviser (c). This seems to follow naturally upon the same reason- ing, and here, of course, the privilege is that of the witness. This privilege of the client can always be w^aived by him, and if waived, a witness who has objected to answer a question on the ground of his client's privilege must then answer it. It is for a solicitor to decide whether a document he is called on to produce is privileged. It seems that a solicitor called upon to produce any document of his client's must exercise his own dis- cretion as to producing it, and that it is not for the judge to decide whether or not it ought to be pro- duced (d). Where, however, an inquiry was directed as to what separate estate a married woman was entitled, and the solicitor for the married woman's trustees was subpoenaed on the inquiry to produce documents, and he refused on the ground of privilege to produce a deed under which the married woman was entitled to certain separate property, and also refused to state the names of the trustees, it was held that the privilege could not be claimed, and that he must both produce the deed and state the names of the trustees (e). A document ])iivi]eged in a solicitor's Although some document originally in a solicitor's possession would, bad it remained in his possession, (6) Vrawcour v. Salter, i8 Ch. D. 30 : (c) Ante, p. 488. (d) Volant v. Soyer, 12 C. B. 231. (e) Bursill v. Tanner, 16 Q. B. D. i 35 ; S3 L- T. 446. 45 L. T. 62. 55 L. J. Q. B. 53 ; 34 W. R. OF EVIDENCE IN CIVIL CASES. 493 have been privileged, yet, if he has parted with it to hands is not some other person, although he should not have done ff he p|i4 so, yet the privilege is gone, and it may be given ^''■h it- in evidence by the party into whose possession it has come (/). This case of privilege does not extend beyond the No privilege persons named {g) ; thus, medical men Qi) and clergy- J," medical men (i) are not within the rule, though some doubts ^^^"^ ^"'^ clergymen. nave been expressed as to the latter {k). All communications in or with reference to litigation Communica- which are expressed to be "without prejudice" are prJjuai^/''"" privileged (/) ; but when an offer is made in a letter written " without prejudice," and such offer is accepted, or when an admission is made in a letter subject to a condition, and such condition has been performed, the letter can be used in evidence against the writer, notwithstanding that it was written " without pre- judice " (m). A letter cannot be made privileged by being simply marked " private and confidential " {n). Anonymous letters sent to a barrister or solicitor with reference to a matter in which he is concerned are privileged, but not anonymous letters sent to the party to the action himself (0). Letters between a country solicitor and his town agents are privileged {p). In addition to the foregoing may be mentioned two (/) See Cleave v. Jones, 21 L. J. Ex. 105. {rf) See ante. p. 488. (h) Lee v. Hammerton, 12 W. R. 975. (i) Broad v. Pitt, M. & M. 233. (h) See Powell's Evidence, 146, 147. A pursuivant of Heralds' College is not in the position of a legal adviser, and communications between him and the person employing him are not privileged {Slade v. Tucker, 14 Ch. D. 824 ; 49 L. J. Ch. 644 ; 28 W. R. 807). (I) Walker v. Wihher, 23 Q. B. D. 337 ; 58 L. J. Q. B. 501 ; 37 W. R. 723. (m) Powell's Evidence, 303, 304. (n) Kitcat v. Short, 48 L. T. 641. (0) In re Holloivay, Young v. Holloioay, 12 P. D. 167 ; 56 L. J. P. 81; 57L. T. 515; 35 W. R. 751. (p) Catt V. Tourle, 19 W. R. 56. 494 OF EVIDENCE IN CIVIL CASES. Some other other cases of privilege, which, however, are of much privilege. l^ss importance in civil proceedings than the two chief cases that have been given. The first is, that a witness cannot be asked, and will not be allowed to state, any facts, or to produce any documents, the disclosure of which may be prejudicial to the public interest (q), e.g. state (locu- in the case of some high documents of State. The i"eiits. i'i.-i • 111- second is, that evidence may sometimes be excluded m a civil case on the ground of indecency (r) ; but the indecency must be something of a very exceptional character, as tending to outrage all conventional pro- priety, or involving some matter particularly affecting domestic morality. It may, however, be safely stated that this rule is of such a very fine nature as to be practically of very little importance, or almost of no importance at all. IV. Misceiia- IV. Of soiuc miscellaneous points on the law of evi- iieous points on , tiie law of clencc. evideuce. Tiie oniis In any action the onus prolandi, or burden of proof, probandi \s on . , , i /v • • i o i the persou IS on the persoii who asserts the amrmative side oi the affirmirtfve hi c[uestion (s), that is to Say, that any person who asserts an action. a fact is bouud to prove that fact to enable him to succeed in his case, and it is not necessary for the person alleging the negative to prove it in the first instance. At a trial, therefore, it is generally for the person on whom the affirmative lies to begin. In all cases, by the affirmative is not merely meant the affir- mative in point of form, but the affirmative in sub- stance, and the true test for determining on whom the affirmative lies is this : If no evideuce was offered, who would be unsuccessful in the action ? It is for the party who would be unsuccessful in such event to commence {t). (q) Powell's Evidence, 150. (7-) Ibid. 155. (s) See Brown's Law Diet. 374, tit. " Onus proband!." (<) Amos V. Hughes, i M. & Rob. 464. OF EVIDENCE IN CIVIL CASES. 495 Instances without number to illustrate the foregoing An instance remarks could be easily given. Thus, take an ordinary ° * ^®" action for goods sold aud delivered : here, if the de- fendant in his statement of defence denies the sale and delivery, or otherwise puts the question in issue, if the plaintiff offered no evidence the verdict would be for the defendant, so here the 07ius probandi lies on the plaintiff; but if the defendant admits the sale and delivery of the goods, but sets up some counter- claim against the plaintiff, in this case if the de- fendant gave no evidence, the verdict would be for the plaintiff, so here the oiius probandi lies on the defendant. But there are numerous cases in which, iu conse- But sometimes quence of presumptions of the law, the onus probandi tioiro^tife lies on the party on whom it would not lie, but for ^^'^r"'^^*^^^. . . . onus probandi such presumption. Thus, in an action on any ordinary where it simple contract, it is for the plaintiff to prove that otherwise be. the essentials of a simple contract exist, unless the contract is admitted by the defendant {u) ; but as bills of exchange and promissory notes are presumed to have been given for a valuable consideration until the contrary is shewn {x), here it lies on the party who denies the consideration to prove his denial. It is, however, sufficient for a defendant to prove some- thing in the nature of fraud in the prior dealings with the instrument ; and if he does this, the plain- tiff is then bound to shew how he became possessed of it iy). Again, where a person takes an interest under a As to the case voluntary settlement, or any other voluntary instru- settkuient^^^ ment, aud proceedings are instituted to set aside or otherwise question his interest thereunder, the burden [u) As to what are the essentials of a simple contract, see ante, p. 31. (x) See ante, p. 192. (y) Smith v. Braine, 16 Q. B. 244 ; 20 L. J. Q. B. 2gi. 496 OF EVIDENCE IN CIVIL CASES. of proof lies on the defendant to prove that such voluntary instrument was fairly and honestly made, without any fraud or pressure upon his part, and if he stood in a fiduciary capacity towards the person making such voluntary instrument, he must, in addi- tion, shew how the intention to make it was produced in the other person (z). A child born during wedlock is presumed to be legitimate until the contrary is shewn. A child born during wedlock is presumed to be legitimate, a presumption which, however, like other presumptions, is capable of being rebutted (a), though the burden of proof lies on the party who denies the legitimacy (h), unless, indeed, the circumstances are such as to rebut the presumption of legitimacy, e.g. non-access between the husband and wife (c). There are also many other cases in which the presumption of the law puts the onus probandi where it would not be but for that presumption, but to go into them is beyond the scope of the present work {d). Eight to It has already been stated that the person on whom for personal*'"^ the affirmative lies has the right to begin {e), but it has injuries, &c. j^^g been an established rule at law that in actions of libel, slander, and in respect of other personal injuries, or, indeed, in any action where the plaintiff seeks to recover actual damages of an unascertained amount, he is entitled to begin, although the affirmative of the issue may in point of form be with the defendant (/). Leading questions are not Leading questions cannot be put to a witness by the person on whose behalf he is called {g). By a (2) Per Lord Eldon, Gibson v. Jeyes, 6 Ves. 266 ; Hoghton v. Hoghton, 15 Beav. 299; Coolce v. Lamotte, 15 Beav. 234. (a) BosviUe v. Attorney-General, 12 P. D. 177 ; $6 L. J. P. 97 ; 57 L. T. 88 ; 36 W. R. 79. (6) Banbury Peerage Case, I S. & S. 155. (c) Halves V. Draegar, 23 Ch. D. 173 ; 52 L. J. Ch. 449 ; 48 L. T. 518; 31 W. R. 576. (d) See some in Powell's Evidence, 325-330. (e) Ante, p. 494. (/) Powell's Evidence, 333. {g) Ibid. 512. L OF EVIDENCE IN CIVIL CASES. 497 " leading question " is meant some question put or allowed in an framed in such a form as to suggest to the witness ^n^chi^f"*'"" the answer that is desired (h). Thus, if at a trial it is desired to elicit from a witness the effect of a certain conversation, the proper way to put the question is to simply ask the witness what then took place, or to that effect, and it is not allowable to state in the question the conversation and ask the witness if it did not take place, for this would be a leading question (i). The reason of the rule prohibiting leading questions must be apparent to all ; and it has been well stated in Mr. Powell's work on Evidence (k) to be "because the object of calling witnesses and examining them vivd voce in open court, is that the judge and jury may hear them tell their own unvarnished tale of the cir- cumstances which they are called to attest." In cross-examination of a witness, however, or even ^/t another action. especially it it has been put in on oath, as would be the case as regards an answer to interrogatories (r). An admission need not necessarily be in writing, Admissions but it may be by parol, e.g. in the course of conver- ^^oUr'by sation ; and acts, conduct, manner, demeanour, and conduct, &c. acquiescence may operate as admissions if they can be so fairly construed (s). Counsel may at a trial bind their clients by any Effect of admissions they in their discretion see fit to make (t), co,^se1°"' ^^ and where an order has been made by the consent or^sents,'&c. on the admission of counsel, the party for whom such counsel appeared cannot afterwards arbitrarily with- draw any such consent or admission, but the other party is entitled to perfect the judgment or order and to proceed thereon, subject to the right of the party objecting to counsel's consent or admission, to apply to the Court that made the order to be relieved from the consent or admission on the ground of mistake or surprise, or for other sufficient reason (u). An agent can only bind his principal by admissions when the making of such admissions comes within the scope of his ordinary and usual authority (x) ; and a wife can only bind her husband by her admissions so far as she can be said to have his authority, express or implied, to do so (?/), so that even in an action against (r) Fleet v. Perrins, L. R. i Q. B. 536. (s) Powell's Evidence, 277. (t) See Sioinfen v. Sivinfen, 18 C. B. 485. {u) Harvey v. Croydon Union Sanitary A utkority, 26 Ch D 24Q • 53 L. J. Ch. 707 ; 50 L. T. 291 ; 32 W. R. 389. (x) This is simply on the ordinary principle of the power of an agent to bind his principal, as to which see ante, p. 145. (y) This, again, is on the ordinary principle of the power of the wife to bind her husband, as to which see ante, p. 243 et seg. 500 OF EVIDENCE IN CIVIL CASES. It is for the judge to decide on the admissibility of evidence ; but it is for the jury to decide as to the credence to be given to it. a husband for his wife's tort, her admission of it cannot be given in evidence against him (z). An infant cannot make admissions, nor generally can his guardian or next friend do so for him (a). We have seen in the foregoing pages that there are many kinds of proof that may be tendered that cannot or ought not to be received. It is for the presiding judge to determine as to the admissibility of particular evidence. There is also another and perhaps even more important point, viz. as to the credence to be given to a witness, for very often evidence of a most conflicting character is given at a trial. It is for the jury to decide on the point of credence, for they sit to try the facts of the case, and in exercising their judgment they should regard the whole circumstances connected with a witness; they should look to his demeanour, and see whether he appears to be giving his evidence in an honest, straightforward, and true manner, and whether he appears to be an over-zealous witness, unduly anxious to befriend the party on whose behalf he is called, in which case he must be regarded with, at any rate, some suspicion. They should look, also, in cases of conflicting evidence, not only to outward circumstances, but to inner matters, and consider any interest or possible motive that the witness may have, that may tend to weaken his evidence, and look even to his general character and past doings as some criterion on the all-important question of truth (h). (s) Bean v. White, 7 T. R. 112. (a) Powell's Evidence, 297. (b) As to the mode of taking evidence, and of enforcing the attend- ance of witnesses, and generally on the practice of the Court thereon, the student is referred to Indermaur's Manual of Practice, 134-137. GENERAL INDEX. A Abatement, Of a nuisance, 333, 334. Acceptance, And receipt of goods within the 4th section of Sale of Goods Act 1893, loi, 102. Of bills : See Bills of Exchange. Accident, A person not liable for accidental injury if free horn fault, 351, 352. But otherwise if any negligence, or if the party was doing an unlawful act, 352. Liability for fire caused by, 429, 430. What will be an inevitable accident, 433. Accidental Injury, A person is not liable for, if he is free from fault, 351. 352. Accord and Satisfaction, A smaller sum cannot satisfy a greater, but something different may, 262. Definition of, and generally as to, 268, 269. The value of the satisfaction cannot be inquired into, 269. Acknowledgment, To take a case out of the Statutes of Limitation, 5 7 , 58, 273. ^ An unqualified admission of account being open is suflficient, 273. Must always be in writing, 57, 274. Effect of, by one of several, 274. Must have been made before action, 274, 275. 502 GENERAL INDEX. Act of God, As to what is, 128, note (e). Actio personalis moritur cum persona, Meaning of maxim, 5, 417. Distinction as to when maxim applies and when it does not, 5, 6. Applies generally to actions of breach of promise of marriage, 5, 6. Exceptions to maxim, 323, 355, 417. Provisions of Lord Campbell's Act and decisions therein, 417, 418. Actual Partner : See Partnership. Admissibility of EvioENfE : See Evidence. It is for judge to decide as to, 500. Distinction between admissibility and credence, 500. Admissions, An unqualified admission of an account being open is a sufficient acknowledgment to revive statute barred debt, 273. On a notice to inspect and admit, 482. Meaning of "saving all just exceptions," 482. May do away with necessity of strict e\4dence, 498. Effect of, if made in some other action, 499. ^lay occur by parol, or even by conduct, 499. Effect of, by counsel, agents, &c., 499. Infants cannot make, 500. Adultery Proceedings, Parties to, are competent witnesses, 479. Adverse "Witness, May be contradicted, 477. If intended to contradict him by a writing, his atten- tion must first be called to it, 478. Advertisement, Action may be brought for reward offered by, 38. May constitute contempt of Court, 370, 371. Advocate, Absolutely privileged in what he may say in the course of his advocacy, 389. GENERAL INDEX. 503 Affidavit, "When used on an interlocutory application, may con- tain a statement founded upon deponent's belief, 486. Affirmation, By witness under the Oaths Act, 1888, 476. Agent : See Principal and Agent. Agreement : See Simple Contract — Combination. For lease, effect of going into possession under, 75. Agricultural Fixtures, 72-74. Aliens, Who are, 254. Their position prior to and since the Naturalization Act, 1870, 254, 255. Alterations in Instruments, Effect of, after execution, 181, 182. Ambiguity, Rule as to admissibility of evidence to explain, 27, 28. Difference between patent and latent, 27, 28. Distinction as stated by Lord Chief-Justice Tindal, 27, 28. The case of Gosa v. Lord Nugent, 28. If an instrument is so ambiguous as to make it doubt- ful if a bill or note, it is in the election of the holder to treat it as either, 190. Animals. As to property in, 340. Injuries done by and to, 344, 345. Annuity, Definition of, 58. Writing is necessary under the Annuity Act, 58. Apartments, Agreement for letting of, 6t^, note {I). Apology, Effect of, in an action for libel, 392. Special provision in the case of libels in newspapers, 392. 504 GENERAL INDEX. Apportionmen*t of Rent, Provisions as to, 87, 88, Apprentice : See Master and SERVArrr. Position of, with regard to premium paid, if master dies or becomes bankrupt, 46, A master is bound to provide medical attendance for indoor apprentice, though not for an ordinary ser- vant, 228. Liability of an infant apprentice, 238. Is liable to be reasonably chastised by master, 363. Appropriation of Payments, The rule as to, 261, 262. Exception to general rule, 262, note {t). Creditor may appropriate even to a statute barred debt, 262. Arbitrator, Not liable for mistake or errors of judgment, if he acts honestly, 318. Arrest, When a constable may arrest without a warrant, 368, 369- When a private person may arrest another, 369. Power of pawnbrokers to, 370. Under the Debtors Act, 1869, 371-374. Liability for malicious arrest, 375. Definition of malicious arrest, 375. Distinction between, and imprisonment for debt, 375. Articled Clerk : See Apprentice. Assault and Battery, Definition of assault and of battery, 356, 357. What will constitute an assault, 357-359. Instances of assaults, 358, 359. A merely passive act cannot amount to. 359. Consenting to an assault, 359. Distinction between, 359, 360. May amount to mayhem, 360. An action may be brought here for, though committed abroad, 360. But protection possible by reason of local Act of In- demnity, 360, 361. GENEEAL INDEX. 505 Assault and Battery — continued. May be justifiable in defence of one's person, or in de- fence of husband, wife, child, relative, neighbour, or friend, 361. Or in defence of one's property, 362. Or on account of a person's peculiar position, 2,^2,. May be committed irrespective of malice, 363, 364. May be committed indirectly, as by the throwing of a squib, 364. When principal liable for assault committed by his agent, 364. Remedies for, 364. Wife cannot sue her husband for, not even if she has since been divorced, 365. Damages recoverable in respect of, 461. Assignments of Leases, Must be by deed, 64. Association, Of more than twenty persons illegal if not registered, 224. Assurance, Definition of, 204, Three things generally impliedly warranted in a marine policy, 205. But in a time policy no implied warranty of seaworthi- ness, 205, note (0). Meaning of term "seaworthy," 205, note (0). Contracts of fire and marine assurance are contracts of indemnity, 205, 206. But contracts of life assurance are not, 206. Rights in respect of insurance by vendor of house he has agreed to sell, 206. Wager policies not allowed, 206, 207. A person to insure must have an insurable interest, but a person may insure his own life, or a wife her husband's, 207. Under Married Women's Property Act, 1882, assur- ance may be effected for separate use of wife and children, subject to rights of creditors, 207. As to effect of concealment on a policy, 207, 208, Contracts of, are uherrimae fidei, 207, 208. 5o6 GENERAL INDEX. Assurance — continued. Necessity of disclosing alteration of circumstances occurring after offer to insure, 208. Effect of suicide on a policy, 208, 209. Life and marine policies are by statute assignable, 163, 164, 209. Atheists, Rule as to evidence of, formerly, 476, May now give evidence under provisions of Oaths Act, 1888, 476. Attesting Witness, When it is necessary to call, 483. Course when he is dead or cannot be found, 483. What it is sufficient for him to depose to, 483. Attorney : See Solicitors. Warrant of, 10. Attornment Clause, In a mortgage constitutes a bill of sale, 116. But clause may still be of some value, 116, note (k). Auction, Sale of goods by, 102. Auctioneer, How he may be liable for conversion, 348. Is not protected from consequences of a wrongful sale because he sold in market overt, 348. Average, General and particular, 200. B Bail, Agreement to indemnify is illegal, 291, 292. Bailee, Estopped from denying the title of his bailor, 1 7. Bailiff : See Distress. Has no claim for his fees against solicitor employing him, 221. GENERAL INDEX. 507 Bailments : See also particular titles. Generally, 122-142. Lord Holt's division of, 122, 123. The cases of Goggs v. Bernard and Wilson v. Brett, 123, 124. Distinction between a pawn, a lien, and a mortgage, 125, 126. As to pawnbrokers, 126, 127. Carriers, 129-138. Innkeepers, 138- 141. Lodging and boarding-house keepers, 141, 142. Another division of, 142. Banker and Customer : See Cheque. Relation between, 192. Statutory provisions as to bankers' books in evidence, 467. Bankrupt, Cannot on his examination object to answer question on the ground that it may criminate him, 467. Bankruptcy, As to proof of judgment debt in, 12. Administration of estates in, 13. Position of voluntary settlements in, 19. Debt barred by, is not revived by mere promise to y^J, AS- Right of trustee in, to disclaim onerous property, 87. In event of, trade or business goods comprised in a conditional bill of sale pass to trustee if in bankrupt's possession, 121, 122. Married woman cannot be made a bankrupt unless trading apart from husband, 245. Composition with creditors under provision of the Bankruptcy Act, 1890, 264. Barristers, Cannot recover their fees, 2 1 6. Are not liable for negligence, 216. Contracts between, and clients as to their services void, 216. Battery: See Assault and Battery. 508 GENEKAL INDEX. Beadle, Is justified in forcibly removing a person disturbing congregation, 363. Begin, Who has the right to, at trial, 494, 495. Belief : See Evidence. An affidavit on an interlocutory application may con- tain a statement founded only on deponent's belief, 486. Betting : See Gaming Contracts. Beyond Seas : See Limitation of Actions. Meaning of, 272. Bills of Exchange and Promissory Notes, Origin of the system of exchange, 165. This subject now governed by Act of 1882, 165. Definitions of a bill, a promissory note, and a cheque, 165, 166. Advantages derived from, 166, 167. Forms of, 168. When negotiable, 168. Effect of making a bill payable to an unnamed person, 168, 169. What is a sufiicient acceptance, 169. Two classes of persons liable on bills and notes, 169. Engagement of the acceptor, 169. Acceptance for honour or supra protest, 170. Referee in case of need, 170. Accommodation acceptance, 170, 171. The giving of parol evidence to shew no consideration, 171- Acceptance of, may be either general or qualified, 171, 172. Distinction between general and qualified acceptance, 172. Difference between indorsement in blank and special indorsement, 172, 173. Right of party to whom instrument payable to order transferred without indorsement, 172, 173. Blank indorsement may be converted into special in- dorsement, 172, 173. GENERAL INDEX. 509 Bills op Exchange and Promissory Notes — continued. Position of indorsers of bills or notes, 173. Indorsement may be restrictive, 173. Effect of an indorsement "sans recoiirs," 173. Holder in due course, 174. Effect of accepting, making, or indorsing ''per proc," 174. Liability of an executor or administrator making, accepting, or indorsing, 175. How bills and notes may be made payable, 175. Days of grace, 175, 176. Statute of Limitations runs from date of instrument payable on demand, 176. But no interest payable until demand, 176, note (n). Meaning of the term "usance," 176, 177. Non-dating or wrong dating of instrument, 177. As to presentment and notice of dishonour generally, 177-181. What is sufficient notice of dishonour, 179. To whom given generally, 'and in the case of death, 179, 180. Time for giving it, 180. Cannot be sued upon until the day after it is due, 180, note (/). Delay in giving notice of dishonour, 181. When notice of dishonour dispensed with, 181. Effect of alterations after execution, 181-1 83. Difference in transfer of bills or notes before and after becoming due, particularly as to a stolen or lost bill, 183-185. The cases of Miller v. Race and London Joint Stock Bank V. Simmons, 184, 185. What is a sufficient consideration for a bill or note, 185. Forgery of a bill or note cannot confer any title, 186. The case of Bank of England v. Vagliano, 186, 187. How liability on bills and notes may be discharged, 187, 188. When noting and protesting necessaiy, 188. Difference between an inland and a foreign bill, 188, 189. Eules as to, when laws conflict, 189, 190. Receipt on back of a bill or note now requires a stamp, 190. 510 GENERAL INDEX. Bills of Exchaxge axd Promissory Notes — continued. If it is doubtful whether an instrument is a bill or note, it is in the election of the holder to treat it as either, 190. EfiFect of loss of a bill or note, 1 90. Rights in such a case, 191. Bills and notes carry interest, 191. Tender after bill due, 191. Summary of differences in bills and notes from other simple contracts, 191, 192. Infants not liable on, 236, 237. Bills or notes given for gaming debts are not absolutely void, but only to be taken to be given upon an illegal consideration, 304, 305. Difference as regards bills and notes given in payment of other wagers, 305. Bill of Lading, Indorsement of, may affect right to stop in transitu, 108, 109. This rule applies to indorsement of all documents of title, 108. "What it is, 202. Difference between, and a charter-party, 202. To a certain extent negotiable, 202, 203. Effect of indorsement of, as regards liability of indorsee for freiglit, 203. Meaning of clause in, as to "perils of the sea," 203, note {h). Bill of Sale, "When a mortgage of fixtures requires registration as a bill of sale, 74. If goods removed under, landlord cannot follow them, 82. Provisions of Bills of Sale Acts, 1878 and 1882, points decided on, and generally as to, 114-122. Position of, on the bankruptcy of the giver, 121, 122. BOARDIXG-HOUSE KEEPERS, Liability of, 141, 142. Books, &c., Bankers' books, provision as to admission in evidence, 467. Companies' books, &c., like provision, 467. GENERAL INDEX. 5II Books, &c. — continued. A person's own, are not evidence, but he may refresh his memory by reference to them, 485. Bottomry Bond, Definition of, &c., 201. In such a security the Usury Laws never had any apph- cation, 202. Breach of Contract, Consequences flowing from, 22, 23. Breach of Promise of Marriage, The maxim Actio personalis moritur cum persona applies generally to, 5, 6. Infant not liable in respect of, 238. Damages recoverable for, 461. In actions for, parties are now competent witnesses, 478. Plaintiff's evidence must be corroborated, 478, 479. Brokers, Difference between, and factors, 151. Builders, Injuries done by, 412. Burden of Proof, Is on party seeking to prove affirmative in an action, 494. But presumption of law may put it where it would not otherwise be, 495. Onus of proof where a voluntary settlement is called in question, is on the person taking the benefit, 495, 496. Child born during wedlock is presumed legitimate, 496. Business, When entries in the course of, admitted in evidence, 473. 474- C Cab Proprietors, As to the liability of, 410, 411. Captain or Master of a Ship, Has power during voyage to sell or hypothecate ship and cargo, 199. 512 GENERAL INDEX. Captain or Master of a Ship — continued. Generally he has unlimited discretion how to act, 200. Jettison, 200. May imprison or reasonably chastise sailors, 363. Carrier, Non-liability of, for loss of mare, it being " act of God," 128, note (/). Reason of extensive liability of carrier's of goods, 128. Definition of a common carrier of goods, 129. Liability of carriers of goods at common law, 129. Provisions of the Carriers Act, 131, 132. Provisions of the Railway and Canal Traffic Act, 131, 132. As to special contracts and conditions under this Act, 132. Act does not apply to conti-acts by companies to carry beyond the limits of their own line, 133. Liability where contract to carry partly by sea, 133. Provisions of the Railway Regulations Act, 1868, 133, 134- Duty of carrier of goods, 134. As to carriage by a railway company ovei' their own and another line, 134. Who is to sue the cai'rier, 134. As to carrying dangerous goods, 134. As to railway passengers' personal luggage, 135. As to goods deposited in a cloak-room, 136. As to goods sent to a certain station to be called for, 136. As to the Equality Clauses relating to railways, and the powers of the Railway Commissioners, 137, 138. Liability for injuries to passengers, 138. Liability of, by sea, 203, 204. Liable for negligence causing injury to passenger, 416, 417. Damages recoverable against, 458, 459. Cart, Injury arising from servant washing, 449. Cases, For index of, see ante, p. xi. GENERAL INDEX. 513 Cats, Scienter, 344, 345. Injuries to, 346, 347. Cattle, Obligation as to fencing out, 324, 325. As to liability if they stray, 428. Caveat Emptor, As to furnished houses, 90. Meaning and instance of the rule, 112, 113. Exception to the rule, 113, 114. The rule does not apply to the contract of insurance, 207, 208. Certified Conveyancers, May recover their fees, 216. Champerty, Definition of, 297. Character, Master's position as to giving character to his servant, 230, 386. Persons of infamous character may yet give evidence, 477- Evidence affecting a person's, 477. Charities, Liability for contract made on behalf of, 225. Charter-party, What it is, 202. Difference between, and a bill of lading, 202. Meaning of clause in, as to " perils of the sea," 203, note (/t). Chemists and Druggists, Cannot recover for advice, 221. Cheque. Definition of a, 166. The rules as to bills and notes generally apjjly to, 193. Time within which it should be presented, and conse- quences of non-presentment, 193. Position of a person taking an overdue cheque, 194. Post-dated cheque good, 194. 2 K 514 GEXEKAL INDEX. Cheque — continued. Consequences of a banker paying a forged cheque or a cheque with the indorsement forged, 194. A banker cannot recover the amount of a cheque from a person to whom he has paid it on discovering th;it his customer's account lias been overdrawn, 195. Crossing of, 195-197. Crossing it, *' not negotiable," 196, 197. Protection of bankers paying, 197. When a good tender, 268. CniLD : See Infants — Parent and Child, Rule as to when testimony of children is admitted, 480. If Ijorn during wedlock presumed legitimate, 496. Chose in Action, Definition of, 163. Not generally assignable, but exceptions, 163, 164. Provision of Judicature Act, 1S73, as to, 164. Remarks on this provision, 164, 165. A future debt may be assigned, 165. Clergymen, Have no privilege as to giving evidence, 493. Cloak-room, Liability of a railway company for goods deposited in, 136. Clubs, Liability for contracts made on behalf of, 225. Coal, Liability of worker of, as regards owner of surface, 327» 328. Code, As to the advantages of, 2, 3. First and most recent attempts at, 3, note (c). Cognovit, Definition of, 9. Essentials as to execution of, 9. Difference between, and a warrant of attorney, i o... GENEEAL INDEX. 51^ Collision : See Contributory Negligence. Injuries arising froui, 416. Duty as to removing obstruction in the case of, 429. Combination, Of employers to decrease or limit wages illegal, 295. Of employees to increase wages also illegal, 295. This is subject to Trade Unions Act, 1871, 295, 296. Committal Order on Judgment Summons, Cannot be made against married woman, 245. Must not be conditional, 374. Common Employment, 228, 421, 422. Common Law, Origin of, i. As distinguished from equity, 3. Companies, Diffei'ence between limited and unlimited, 223, 224. More than twenty persons cannot carry on business without registi-ation as a company, 223. Contracts by, 224, 225. Statutory provision as to various documents in evidence, 467. Comparison of Handwriting, Proof by, 482, 483. Composition, As to rights against a surety after accepting a composi- tion, 53. With creditors as an excuse for non -performance of a contract, 264. Compulsion : See Duress. Money paid under compulsion of legal process cannot be recovered back as money had and I'eceived, 281. Compromise of Claim, When a valuable consideration, 39. Condition, distinction between, and warranty and mis- representation, 109, no. Conditions on tickets, receipts, &c., constituting a contract, 38. Consents to Judgment, to. 5l6 GENERAL INDEX. COXSIDERATIOX, What is a valuable, i8. A simple contract must have a valuable, i8. A deed does not require one, i8. But though not requiring one, it is liable practically to be called in question in three ways, through want of it, 18, 19. What is a good, iS. Origin of necessity for, 39, note {h). Whether it is sufficient cannot be inquired into, 39, 40. But it must be real, 40. Must appear on the face of a written contract, or be capable of being implied therefrom, except in two cases, 40, 41. May bo either executed, executory, concurrent, or c-on- tinuing, 41. When an executed consideration will support a pro- mise, 41, 42. A merely moral consideration is not sufficient for a simple contract, 43, 44. But a moral obligation which was once a legal one is, 44. The doing of an act a person was bound to do is not a, 45- Unreality of, 45. As to an impossible, 45, 46. A pre-existing debt is sufficient, for the handing over of a negotiable instrument, 185. Constable, As to liability of, 36S, 369. Demand for warrant must be made, 368. Course then to be taken, 368. When he may arrest without warrant, 368, 369. Construction of Contracts, Rules for, 23-30. Contempt of Court, 370. Contracts : For particular contracts, see respective titles. Different divisions of, 7, 8. Of record, 8-14. Specialties and simple contracts, differences between, 14-20. GENERAL INDEX. 517 Contracts — continued. Express and implied contracts, difference between, 21. Executed and executory contracts, difference between, 21, 22. Rules for construction of contracts, 23-30. A person not a party to a contract cannot sue on it, 32. When may be made out from different documents, 33-35- As to offer and acceptance, and revocation of offer, 35-38. As to, through the post, 36, 37. When required to be in writing, 47. In such case the form of writing does not go to the existence of the contract, 47. When an agent's authority to sign must be by writing, 57- One party to a contract cannot sign for the other, 57. As to land generally, 60-go. When a liability arises on, 256. When an action may be brought before the time for performance, 257, 258. Performance of, generally, 260-269. Excuses for the non-performance of, 269-379. Illegality of, never presumed, 292, 293. Stricter principles observed in assessing damages for breaches of, than in respect of torts, 450. Damages recoverable in various particular cases, 453-463- Contractor, Liable for negligence in or consequences of his work, 411, 412. But a person desiring a dangerous work to be done, cannot rid himself of liability by employing another to do it, 412. Contradiction, Of an adverse witness, when allowed, 447, 478. Contribution, Not allowed between wrongdoers, 319. Under the Directors' Liability Act, 1890, 319. 5l8 GENERAL INDEX. Contributory Negligence, In cases under Lord Campbell's Act, 419. Definition of, 434. Instance of, 434. What will and wliat will not be, 435. Necessary for plaintiff to disprove if injury may have happened from, 435, 436. The doctrine of, applies to children, &c., 436. Contributory negligence of servant is that of master, 437- Doctrine of identification in contributory negligence now overruled, 437. Doctrine of, is founded on the maxim, Volenti non fit injuria, 437, 438. COXVERSIOX, Meaning of, 336. Distinction between, and trespass, 336. May be by an agent's act, and even by ratification, 347. Conversion by auctioneers, 348. When a demand is necessary before action for, 349. Ilight to follow proceeds of goods wrongly converted, 35°- Justification of, 350, 351. Who is the person to sue for, 353. Remedy for, 354. Copyright, Definition of, 2 10. Term for which it exists, 211. Enactment of Act of 1882 as to music, 2 it. Right of, in article in an encyclopsedia, magazine, &c., 211. In lectures, 211. A novel may be dramatized, 212. None in a name, 212. Assignable by mere entry in register, 212. What suificient registration of. 212, note (/i). Consequence of omission to register, 212. Rights in case of infringement of, 212. As to property in letters, 212, 213. Corporation, Definition of, 223. GENEKAL INDEX. 519 Corporation — continued. May be either sole or aggregate, 223. Contract by a, 223. A municipal corporation cannot maintain an action for libel, 381. Counsel, Cannot recover their fees, 216. Are absolutely privileged in what they say in course of their advocacy, 389. INIay bind their clients by admissions, 499. Counter-claim : See Set-off. Country Notes, When a good tender, 268. Covenant, To pay all taxes, &c., 69, 70. Crane, Liability for injury done by, 41 1. Credence, It is for a jury to decide as to credence to be given to a witness, 500. Distinction between admissibility and credence, 500. Crimes, Distinction between, and torts, 312. Criminal Act of Servant, When master liable foi", 409, 410. Criminal Information, When prosecution can be by, 391. When prosecution for libel against proprietor, &c., of newspaper by, fiat of director of public prosecutions not necessary, 391. Criminals, Formerly were not good witnesses, 477. But they now are, 477. Witness may be questioned as to his criminality, and after denial conviction proved, 477. Crossed Cheques, Former position as to, 195. Provision of Bills of Exchange Act as to, 169. 520 GENERAL INDEX. Crossed Cheques — continued. Different modes of crossing, 196. Effect of crossing cheque "not negotiable," 196, 197. Custom, Rights are sometimes given by, 70. Customs are subject to the maxim, Expressum facit cessare taciturn, 70. D Damages, Generally as to, 439-446. Definition of the term, 439. Distinction between liquidated and unliquidated, 439- 443- Difference between nominal, general, and special, 443. An action need not necessarily be for, 444. Liability of an executor or administrator for, 445, 446. Need not always be assessed by a jury, 446. Are assessed not merely to date of issuing w-rit, but down to date of assessment, 446. ^Measure of, generally, 446-453. Must not be too remote, 446-448. Instance of remoteness of damages in slander, 449. Instance of remoteness of damages in case of servant washing cart, 449. "When defendant's motive may be considered in assess- ing, 449, 45°- Vindictive or exemplary, 450. Need not necessarily be the legal consequences of de- fendant's acts, 451. Interest as damages, 452. Double and treble, 453- In various particular cases, 453-463. Recoverable for breach of contract to sell or buy land, 453> 454- For trespass or other injury to land may sometimes be recovered both by actual occupier and rever- sioner, 455. For breach of contract to buy or deliver goods, 455- 457- For breach of warranty, 457, 458. Ao-ainst carriers, and particularly in actions under Lord Campbell's Act, 458-460. GENEEAL INDEX. $21 Damages — continued. On breach of contract to lend money, 460. In respect of injuries to land and nuisances, 460, 461. For breach of promise of marriage, 461. For assault and battery, false imprisonment, malicious prosecutions, 461. Against a non-attending witness, 462. Against a sheriff for negligence, 462. By a servant against a master for wrongful dismissal, 463- Damnum sine injuria, Meaning of, 4. Where there is both damnum and injur id then there is a cause of action, 4, 5. Dangerous Goods and other Things, Duty and liability in respect of, 134, 343, 415. Duty not to let dangerous creatures or things escape, 343- Days of Grace, 175, 176. Dead Person, Ordinarily no proceedings for libel or slander of, 400. Deaf or Dumb Persons, Are good witnesses if of sufficient understanding, 480. Death, Does not revoke a continuing guarantee until notice, 52. Effect of death of husband on wife's power to bind for necessaries, 147, and note (y). Of principal revokes agent's authority, 149. Special pi'ovisions on this last point with regard to powers of attorney, 149, note {tj). Usually puts an end to right of action, but there are exceptions, 5, 6, 323, 355, 417, 422. "What damages are recoverable under Lord Campbell's Act, 459. Presumption as to, after seven years, 474, 475. Debentures, Contract for the sale of, 62, note (A"). 522 GENERAL INDEX. Debt: See Imprisonment — Abiiest. Assignment of future, 165. When interest recoverable on, 452. Deed, Is the only true formal contract, 14, 15. Proves itself after thirty years, 475. Provisions of Vendors and Purchasers' Act, 1874, as to recitals in, 476, note {q). Defamation: See Libel and Sl.\xdeu. Defence, Of one's land is justifiable, 326. Or of one's goods, 352. Assault and battery committed in defence of person or property justifiable, 362. Del ckedeue Agent, 150, 151. Delegatus non potest delegare, 144, 410. Demand, Sometimes necessary before bringing an action for cou- version, 349. Dentists, Must register to entitle them to sue for fees, 221, 222. Detinue, Former action of, 355. Direct and Indirect Evidence, DifiFerence between, 464, 465. Directors' Liability Act, 1890, 285, 319. Discharge of Liability : See Accord and Satisfaction^ Payment. Disclaimer, Trustee in bankruptcy may disclaim onerous property, 87. Time for so doing, 87. Dishonour, Notice of, 1 7 7-1 8 1. GEXEKAL INDEX. 523 Distress, What it is, 75. Requisites to enable a landlord to distrain, 75, 76. Ma}' be made for the whole rent for furnished apart- ments, 75, note (d). Things exempted from, 76. 77. Bill or note taken for rent does not extinguish right of> 79; Maxim of " every man's house is his castle," and appli- cation, 80. Provision of statute of Richard II., 80, Si. After expiration of lease, or by executor or adminis- trator, 81. Landlord may follow goods clandestinely removed, unless if they had remained on the premises he would nevertheless have had no right of distress, 81, 82. Landlord cannot follow goods removed by bill of sale holder, 82. Manner of making a distress, 82. 83. Decision in Six Carpenters' Case, and provision of 1 1 Geo. 2, c. 19, s. 19, thereon, 83. Replevin, 83, 84. Extent of landlord's right under, 84-87. Attornment clause in mortgage will not give right of, 116. Divorce, Does not give a woman a right of suing her husband for torts committed by him during the coverture, 365. DocuMEXT OF Title, What is n, 108, note (x). Dogs, Straying and doing injury, 324. Owners liable for injuries done by, 344-346. As to scienter, 345, 346. Injuries to, 346, 347. Dormant Partner : See Partnership. Double Damages, 453. Drunkards : See Intoxicated Persons. 524 GENERAL INDEX. Dumb or Deaf Persons, Are good witnesses if of sufficient understanding, 480. Duress, What is meant by, 254. Persons under, not liable on their contracts, 254. INIoney paid under compulsion of legal process cannot be recovered back, 281. Duty, Of a person as to dangerous goods and other things, 134, 343> 415- Entries made in course of business and discharge of duty are admitted as evidence, 473, 474. E Earnest, AVhat is meant by, 100. Easements, 326. Ejectment, In respect of non-payment of rent, and as to prior demand, 84. The subject of ejectment for non-payment of rent not afifected by Conveyancing Act, 18S1, 84, note (?). Tenant liable to be ejected on breach of covenant, but relief long given in certain cases, 88. Provisions of Conveyancing Act, 1881, as to relief against forfeitures of leases, 88, 89. Electric Tramway, Causing damage, 430, 431. Employers, Common law liability of, for injuries to servants, 420, 421. Provision of Employers' Liability Act, 1S80, and decision thereon, 422-426. Ejusdem generis, The rule of, 306. Encyclop.edia, As to copyright in an aiticle written for, 211. GENEEAL INDEX. 525 Entry, On premises must not be forcible, 80, 81, 334. Entries, When entries made by deceased persons are admissible, 471-473- Equality Clauses, As to railways, 137. Equitable Defences, 279, 280. Escrow, Meaning of, 1 5. Estoppel, Generally, 11, 12, 16, 17. Estoppel i're j9fl/s, 17. The doctrine of estoppel does not prevent illegality being set up, 16, 292. Bailee is estopped from denying the title of his bailor, 17- Tenant is estopped from denying his landlord's title, 67, 68. "Every man's house is his castle," Maxim of, 80. Evidence. Generally as to, 464-476. Direct and indirect, 464, 465. Primary and secondary, 465. Primary, must always be given where possible, 465. Object of notice to produce, 466. No degrees of secondary, 466. Suhjjoena duces tecum, 467. Exceptions to the rule as to non-admissibility of secondary evidence, 467. Of entries in bankers' books, 467. Hearsay, definition of, 468. Cases in which hearsay is admitted, 468-474. When entries made by deceased persons admitted in, 471-473; Of reputation, 474. Different cases in which presumptions furnish evidence, 474, 475- 526 GENERAL INDEX. Evidence — continued. As to the competency of witnesses, Sec, 476-487. As to atheists and the provisions of the Oaths Act, 1888, 476. Criminals and infamous persons are now good witnesses, 476. As to contradiction of an adverse witness, 477, 478. Persons interested in result of an action are now good witnesses in it, 478. In adultery and breach of promise case?, now the parties are competent witnesses, 478, 479. In breach of promise cases plaintiff's evidence must be corroborated, 478, 479. Of idiots and lunatics, 4S0. Of deaf and dumb persons, 480. Of children, 480. When necessary to call an attesting witness, 481. Different ways of proving instruments not requiring attestation, 481. Object of notice to inspect and admit, 482. Meaning of admission "saving all just exceptions," 482. As to proof by comparison of handwriting, 482, 483. To be given if attestation necessary and attesting witness dead or abroad, 483. What is sufficient for an attesting witness to depose to, 484. Mode of proving a will at a trial, 484. A person is not allowed to make evidence for himself. When evidence consisting of matters of opinion is re- ceivable, 485, 486. Affidavits used on interlocutory application may con- tain statements as to belief, 486. Effect of not stamping an instrument within the proper time, 487. Cases of privilege generally, 487-494. Privilege, meaning of, 488. A witness is not bound to disclose anything that will criminate him, 488, 4S9. Nor a wife that will criminate her husband, 490. Who is to determine whether answering a question will tend to criminate, 488, 48 9. GENEKAL INDEX. 527 Evidence — continued. A witness not always bound to answer questions tend- ing to degrade him, 4S9. No ground of privilege that witness may be exposed to a civil action, 490. A witness may waive his privilege of not answering questions tending to criminate, 490. No such privilege in the case of a bankrupt being examined, 490, and note (m). Professional communications, 490, 491. Professional confidence and professional employment are essential to this privilege, 491. No privilege in the case of medical men and clergy- men, 493. Communications " without prejudice " are privileged, 493- Other cases of privilege, 494. Miscellaneous points as to, generally, 494-500. Onus prohandi is on the person asserting affirmative in an action, 494. Unless the presumption of the law puts it elsewhere, 495- Presumption in case of a voluntary settlement, 495, 496. Presumption as to legitimacy, 496. As to leading questions, 496, 497. Effect of plaintiff or defendant not appearing at a trial, 497, 498. Admissions may do away with necessity of strict proof, 498. Effect in one action of admission made in another, 499. Admission may be by parol, or even by conduct, 499. Effect of admissions by counsel, agents, &c., 499. Admissions cannot be made by an infant, 500. Functions of judge and jury as to, 500. Exchange, Origin of the system of, 165. ex dolo malo ngn oritur actio, 289. Executed Consideration, 41-43. Executed Contracts, 21, 22. 528 GENERAL INDEX. EXECDTTOX, Effect of, on land, 14. Things exempt from, 77, 78. Effect of, on goods, 340. Liabilities and duties of sherifF in levying, 431, 432. Executors and Administrators, Provisions of Statute of Frauds as to their contracts, 49> 5°- How they should accept, make, and imlorse bills or notes so as not to he personally liable, 175. Effect of a creditor appointing his debtor executoi-, 279. When they may maintain action notwithstanding maxim. Actio personalis moritur cum lyersond, 5, 323, 355- 417- Liability of, in an action, 445, 446. Executory Consideration, 41, 45. Executory Contracts, Generally. 22. When a liability on, may arise before the time for per- formance of, 256, 257. Express Contracts and Implied, Difference between, 21. EXPRESSUM FACIT CESSARE TACITUM, 21, 70. Ex TURPI CAUSA NGN ORITUR ACTIO, 3 1 9. F. Factors, Difference between, and brokers, 151, 152. Their power to bind their principals by pledging at common law, and under the Factors Act, 1889, 152. As to right of set-off when action brought by principal, 154. False Imprisonment, Definition of, 365. Distinction between an actual and a constructive deten- tion, 365. Cases in which imprisonment justifiable, 2>^6. As to the liability of justices and constables, 366-369. GENERAL INDEX. 529 False Imprisoxment — continued. A person obtaining a warrant is not liable for false imprisonment, 368. When a constable may arrest without warrant, 368, 369. When a private person is justified in arresting another, 369- As to detention for contempt of court, and for debt, &c., 370-374- Distinction as to proof of reasonable and probable cause in action for, and action for malicious prosecution, 377> 37S. Damages recoverable for, 461. False Eepresextatiox : See Fraud. Father : See Parent and Child. Felony, Action may generally be brought although tort amounts to, 313. Fences, Liability to keep in repair, 324, 428. Ferocious Animals, Injuries done by, 344-346. The doctrine of scienter, 344-346. Finder of Goods, His rights, 336, 337. Fire : See Assurance. As to liability in respect of injuries through accidental fires, 429, 430. Fish, As to property in, 340. Fixtures, Contracts for the sale of, need not be in writing, Gt,. What are, 70. Must be removed during tenancy, 71. Originally fixtures not removable, 71. Cases in which they are now removable, 71-74. Agricultural, 72-74. When a mortgage of, requires registration as a bill of sale, 74. 2 L 530 GENERAL INDEX. Flats, Liability for non-repair of common staircase, 427. Foreign and Inland Bills, Differences between, 188, 189. Forfeiture of Leases, Relief in respect of, 84, 88, 89. Forgery, No title can be obtained througli, 186. Formal Contract, AVhat is said to be tlie only true, 14, 15. Fraud, Effect of, as i-egards the Statutes of Limitation, 272. Definition of, in law, and what representations sufficient to constitute, 283. Legal and moral fraud discussed, 2 84, 285. A false statement honestly believed in does not con- stitute, 2S5, Directors' Liability Act, 1890, 285. A mere lie not sufficient to constitute, 285, 286. Nor words amounting merely to puffing, 286. Misrepresentation as to the legal effect of a document not, 286. As to liability of principal for liis agent's, 286, 287. When a fraudulent representation must be in writing, 58, 287. Provision of 13 Eliz. c. 5, and decision in Twynne^s Case, 287, 288. Provision of 27 Eliz. c. 4, 289. Provision of Yoluntary Conveyances Act, 1893, 289. Ex dolo malo non oritur actio, 289, Contract induced by, may nevertheless be enforced by third person innocently acquiring an interest, 290. Rescission of a contract on the gi'ound of, must take place within a reasonable time, 290. Need not go to the whole of the contract, 290. In pari delicto potior est conditio defendentis et possi- dentis, 290, 291. Position if a person obtains goods by, and disposes of them to an innocent party, 338. GENEKAL INDEX. 53 I Frauds, Statute of, Provisions of, generally, 47-57. As to the memorandum required by the statute, 49. When an agent within, must be authorized by writing, 57- Provisions of, as to land, 48, 49, 60-62. Freight, What it is, 203, Position of indorsee of bill of lading by way of security as regards liability for, 203. Furnished Apartmexts, Distress for rent of, 90. Furnished House, Condition on taking, 90. Future Day, Where action can be maintained before time has arrived for it to be done, 256, 257. G Game, As to property in, 340, 341. Provisions of Ground Game Act, 1S80, 341. Gaming Contracts, 298-306. Provision of the Gaming Act, 1845, and the Gaming Act, 1892, 298, 299. Money won and received by agent may be recovered by his principal, 299. Agent paying a bet he has made for principal cannot recover from principal, 299, 300. Stock Exchange contracts for differences, 300, 301. As to the position of a stakeholder, 301, 302. What is a lawful game within the Gaming Act, 1845, 3°2, 303. As to horse-racing and lotteries, 303. Provision of Leeman's Act, and decisions thereunder, 303> 304- Bills or notes given for money won at betting on games are not void, but to be taken as upon an illegal con- sideration, 304, 305. 532 GENERAL INDEX. Gaming Contracts — continued. Difference as regards bills and notes given in payment of other wager transactions, 305. Wager policies, 306. General Average, 200. General Damages : See Damages. General or Public Interest, To prove matters of, hearsay evidence is admitted, 468, 469. Geographical Description, Cannot be registered as a trade-mark, 213. Goods, Contracts for the sale of, generally, 91-114. Codification of the law as to sale of, 91. Points as to deliver}' and acceptance of, 91, 92. As to property passing in specific, 93. Rules for ascertaining intention as to property in, passing, 94. Instances of cases in which property in, does not pass, 95. 96- When property passes in goods part of an entire bulk, 96. When property passes in goods to be made, 97. Effect of sale of, at price to be fixed by valuation, and no such valuation made, 97. Reservation of right of disposal of, on contract for sale of, 98. General answer to question of when property in goods passes, 98. Perishing after contract for sale, 98. Provisions of Statute of Frauds, and Sale of Goods Act, 1893, as to contracts for sale of, 99. As to earnest and part payment, 100. As to acceptance and receipt of, within meaning of sec- tion 4 of Sale of Goods Act, 1893, loi, 102. Sales of, by auction, 102. Remedies of vendor and purchaser on breach of con- tract for sale of, 103. Vendor's lien on, 103, 104. Stoppage in transitu, 105-109. GENEEAL INDEX. 533 Goods — continued. Effect of exercise of right of lien or stoppage in transitu, 107. Specific performance of contract to sell, 109. As to warranty, 10 9-1 14 As to bills of sale, 1 14-122. Duty as to dangerous, 134, 343, 413. Effect of sale of, to an infant, 237, 238. Failure in delivery of instalment of goods, or in pay- ment of an instalment for goods, 258. Torts affecting, two divisions of, t,t^6. Title to goods, 336-342. Sale in market overt, 337, 338. If stolen and sold in market overt may nevertheless after conviction be obtained back by true owner, 337, ZZ^- But not if the goods were obtained by fraud uot amounting to larceny, 2,Z^- Distinction between trespass and conversion, 2>Z^, 342. Interpleader, 350. Justification of trespass or conversion, 350-352.' Miscellaneous points as to, including defence and re- caption, 352-355. Goodwill, Sale of, and right of vendor as to setting up fresh busi- ness and soliciting former customers, 293-295. Grace, Days of, 175, 176. No days of, in the case of instruments payable demand, at sight, or on presentation, 176. Ground Game, 341, Guarantee : See Surety. Must always be in writing, by Statute of Frauds, 49, 50- How this provision was evaded, and provision of Lord Tenterden's Act, 287. A promise made to a debtor himself, however, need not be in writing, 50. Provision of Mercantile Law Amendment Act, 1856, as to, 51, 534 GENERAL INDEX. Guarantee — continued. Distinction between, and a contract of indemnity, 151- Guests, Of innkeepers, 1 38-141, Position of, if injury happens to them, 412. H Hackney Carriages, Position of person letting out, 411. Handwriting, Comparison of, 482, 483. Hearsay Evidence, Definition of, 468. Cases in which it is admitted, 468-474. Hire Purchase Agreement, May sometimes constitute a bill of sale, 116. Effect of wrongful sale by person having possession of goods under, 153, 154. Holder in due course, 174. Holding : See Landlord and Tenant. A defendant to bail in a civil action, 374, 375. Horse, Injured during voyage, 128, note (/). Special provisions as to the sale of, 338. Liability for, if it strays, 428. Horse-racing, 303. House, Implied warranty on taking a furnished, 90. Housing of the Working Classes, ImpHed condition on letting house for, 90. Husband : See Married Woman. Liability of, and position generally with regard to his wife, 240-252. Still liable for wife's torts during marriage, 252. No right to detain person of his wife, 366. GENERAL INDEX. 535 I Identification, Doctrine of, does not now apply in cases of contributory negligence, 437. Idiot : See Non compos mentis. Distinction between, and lunatic, 252, 253. Cannot give evidence, 480. Illegal Associations, 223, 224. Illegality, Makes a contract void, 291. Money paid under illegal contract cannot be recovered, 291. Unless illegal purpose in no way carried out, 291, 292. Or parties not in 2Mri delicto, 291. The doctrine of estoppel does not prevent its being set up, 292. Is never presumed, 292, 293. Is of two kinds, 293. As to contracts in restraint of trade, 293-296. Other particular cases of, 296-307. An illegal instrument cannot be confirmed, 307. Non-stamping of an instrument does not render it illegal, 307, 308. Illegitimacy, Evidence of, 469, 470. Immoral Contracts, Are always void, 46, 296. Implied Contract, 21, 70, 90. Impossible Consideration, 45, 46. Imprisonment : See False Imprisonment. For contempt of court, 370. Cases in which imprisonment for debt still allowed, 371-374- Distinction from arrest, 375, 376. Indemnity, Distinction between contract of, and contract of guarantee, 151. When it can be claimed by a wrongdoer, 319. 536 GENERAL INDEX. Indictment, What it is, 331. Indirect and Direct Evidence, Difference between, 464, 465. Infamous Character, Persons of, may yet give evidence, 477. Infants, Who are, 231. Liability of, on their contracts, 231-239. Provisions of Infants' Relief Act, 1874, 232, 233. Position of an infant who continues a marriage engage- ment after coming of full age, 233. Functions of judge and juiy in action for necessaries, 234- What are necessaries, and what would be evidence on this point, 234. Who is liable for necessaries when infant residing with his parent, 235, 236. As to whether liable for money lent to buy necessaries, 236. Not liable merely on account of misrepresentation of age, 236. Never liable on bills or notes, 236, 237. Infancy is a personal privilege, 237. Continuous contracts on which liable if not disaffirmed, 237- Position when an infant has paid for things not necessaries, 237, 238. Contracts to marry by, and marriage of, 238. Liability of apprentices, 238. Liability of, in respect of torts, 239. Infidels, Can now give evidence under pi^ovisions of Oaths Act, 1888, 476. Information, What it is, 331. Injunction, May in certain cases be granted against the publication of libel, 399, note (r). GENERAL INDEX. 537 Injuria sine damno, Meaning of, 3, 4, 192, note (?■), 311. Inland and Foeeign Bills, Differences between, 1S8, 189. In pari delicto potior est conditio dependentis et possi- dentis, 291. Innkeeper, Definition of, 138. His liability at common law for guest's goods, 139. Reason of this extensive liability, 139. Who is the guest of, 139. Galyes Case, 139, 140. Provisions of the Innkeepers Act, 1863, 140. Not liable for personal injury to guest unless negli- gence shewn, 141. Has a lien on his guest's property, but not on his person, 141. No lien on goods of a third person sent to the guest at the inn, 141. Effect on lien of taking security, 141. Provisions of the Innkeepers Act, 1878, 104, 105, 141. Innuendo in Libel Actions, 382, 383. Inspect and Admit, Notice to. Object of, &c., 482. Instalments, Failure in delivery or payment by instalments, 258. Provision for payment of debt by, and that on one becoming in arrear, whole shall become due, not a penalty, 443. Institutions, Liability for contracts made on behalf of, 225. Insurance : See Assurance. Interest, Is payable on bills and notes, 192. When recoverable in other cases, 452, 453. Payment of, prevents operation of Statutes of Limita- tion, 275. 53^ GENERAL INDEX. Interest — continued. Effect of such a payment by one of several persons jointly liable on a contract, 275. Is payable on judgment of High Court, but not on judgment of County Court, 453. Interest, Pecuniary or Proprietary, Entries made contrary to, are admitted, 471. Even though they form the only evidence of the interest, 472. Difference between entries against interest and entries made in the course of duty, 473. Interpleader, What it is, and generally as to, 350. Intoxicated Persons, Liability of, on their contracts, 254. Invitation, Doctrine of, 414. J Jettison, 200. Judge, Not liable for acts done in discharge of his duties and within his jurisdiction, 389. Judgmext, Definition of, S. As to consents to, 10. When recovered will merge a covenant contained in a deed, 10, 11. Is not conclusive proof of a debt in bankruptcy, 1 2. Has priority in payment, 12, 13. As to charging lands, 13, 14. Not satisfied by payment of a smaller sum, 262, 263. Does not by itself affect the title to goods, 340. Of High Court carries interest, but not judgment of County Court, 453. Judgment Summons, Married woman cannot be committed on, 245. Now bankruptcy business, 373, 374. Conditional order for committal not good, 374. GENERAL INDEX. 539 Justices, As to their liability, 366, 367. Xotice need not be given before bringing action against, 367. Eight of action barred after six months, 367. Justification, Of trespass, 325, 350. Of an assault, 363. K KixG, The, Can do no wrong, 317, and note {g). L Land, Contracts for sale of, must be in writing, 60. But in three cases Chancery has been in the habit of decreeing specific performance of a parol contract for the sale of, 60. What is an interest in, 61, 62. Title to be shewn to, 6t,. Sufficient signature of, and description in, a contract for the sale of, 63, 64. Torts affecting, generally, 320-335. Trespass quare clausum /regit, 320. Time for bringing action for recovery of, 321. As to action for trespass to, 321, 322. Action for trespass to land abroad cannot be brought here, 321. When an action may be brought in respect of injuries to, after death of party, 323, 324. What will amount to trespass to, 324. Right of, or building, to adjacent support, 328, 427, 428. Damages recoverable by a purchaser on breach of con- tract to sell, 453, 454. Damages recoverable against a purchaser for refusing to complete, 454, 455. Damages for injury to reversion, 455. 540 GENERAL INDEX. Landlord axd Tenant : See Distress. Different ways in which a tenancy may exist, 64. "When writing necessary for a lease, 64. Effect of a parol lease for more than three years, 64, 65. Effect of payment of rent, 65. Position of tenant holding over after expiration of lease, 65, 66. Notice to be given by a tenant on determining tenancy, 65- What a sufficient notice to quit, 66, Notice to quit part of demised premises not good except under Agricultural Holdings Act, 1883, 66. Tenancy at will arising by construction of law, 67. Tenant cannot deny his landlord's title, 67, 68. Position of, as to repairs, 68, 69. General position of, with regard to rates and taxes, 69, 70. Tenant's right by custom, 70. Fixtures, 70-74. Pi'ovisions of Agricultural Holdings Act, 1883, 72, 73. Disti'ess, 75-87. Position where tenant holds under agreement for lease, 75- Requisite to enable landlord to distrain, 75, 76. Things exempt from distress, 76, 77. General rule to determine whether a person is a lodger, 79- Amount of rent landlord entitled to sue and distrain for, 84, 85, and note (/). Landlord's rights against an execution creditor, and in the case of bankruptcy, 85-S7. Apportionment of rent, provisions as to, 88. As to forfeiture and relief therefrom, 88, 89. Tenant may appropriate any part of the rent to in- demnify himself against prior charges, 89, 90. Condition on the letting of furnished houses or apart- ments, 90. Condition on letting to working classes, 90. A tenant wrongfully holding over may be forcibly ejected by landlord, though landlord may be liable for the assault, 81, 325. Position of responsibility in case of nuisance, 330. GENERAL INDEX. 54 1 Latent Ambiguity, Parol evidence is admissible to explain, 27, 28. Distinction between, and a patent ambiguity, 27, 28. Lateral Support, As to the right to. 328, 427, 428. Leading Questions, What they are, 496, 497. Not allowed in examination in chief, but they are in cross-examination, 497. Lease, Provisions of Statute of Frauds as to, 47, 48, 64. Effect of a parol lease which should have been in writing, 64, 65. Effect of going into possession under agreement for, 75. On bankruptcy of a lessee, trustee may disclaim lease as onerous property, 87. Effect of such disclaimer, 87. Lectures, As to copyright in, 211. Legal and Moral Fraud : See Fraud. Legal Practitioners, 216: See respective titles. Legitimacy, Evidence as to, 469, 470. Presumption as to, 496. Leeman's Act, Provision of, and decisions thereunder, 303, 304. Letters, Property in, written from one person to another, 212, 213. Lex non scripta, Meaning of, i. Lex scripta, Meaning of, i. Liability on Contracts, When it arises, 256. When there is liability before day for performance of contract, 256-258. 542 GENERAL INDEX. Libel and Slaxder, 380-400. Definition of libel, 380. Not necessary a libel should have caused any special damage, 380, 381. Municipal corporation cannot sue for, 381. Trading corporation may sue for, 381. Instances of words held to be libellous, 381. Mere words of suspicion will not constitute, 381. Innuendo in, 381, 382. Publication of libel must be proved, 3S3. What will amount to publication, 383, 384. A person unwittingly publishing a libel is not liable, 384. Malice in law is essential to constitute a libel, 384. Privileged communications, 385-390. Privilege of master giving character to servant, 386. Comments and criticisms are not privileged, 387. Privilege of ^Member of Parliament, 387. Privilege in reporting legal proceedings, 387, 388. Reports of proceedings in Parliament, meetings, &c., 387, 388. Provision of Libel Act, 1888, 388. Statements by judges, magistrates, and the like, and by advocates, are absolutely privileged, 389. So also are statements made in the witness-box, 389. Difference between absolute and qualified privilege, 390. Libel may be prosecuted for, and in certain cases by criminal information, 390, 391. Effect of truth of libel in civil and criminal proceedings respectively, 390, 391. For prosecution of the proprietor, &c., of a newspaper for libel, an order of a judge must first be obtained, 391- But this does not apply to criminal informations, 391. Efifect of apolog}' in action of libel, 392. Notice necessary to entitle defendant to give evidence of circumstances of excuse in publication of, 392, note (s). Course to be taken by proprietor of a newspaper in action for libel published in his paper, 392. In such a case defendant cannot plead an apology with- out paying something into court, 392, note (t). Provision of Libel Act, 1888, as to mitigation of damages, 393. GENERAL INDEX. 543 Libel axd Slaxder — continued. Action for libel must be brought within six years, 393. Definition of slandej-, 393. AVhen a criminal prosecution will lie for slander, 393. 394- Instances of slander, 394. Calling a person a felon who has undergone sentence is actionable, 394, note (6). Facts to be proved in an action for slander, 395. Special damage must be proved in an action for slander, except in four cases, 395, 396. Position as regards words spoken of a person holding a public office, 396, 397. Effect of truth of slander, 397, 398. Action for slander must be brought within two years, 398. Repetition of slander, 398, 399. Obtaining injunction against, 399, note (?•). Summary of differences between, 399. As to libel or slander concerning a dead person, 400. Instance of damage for slander held too remote, 449. Licence, To break open premises void, 80, 81. To trespass may be revoked, 325. Licensees, Position of, in i-espect of injuries, 412. Lien, Definition of, 103. How lost, 103, 104. No lien where goods sold on credit, 104. Only exists until delivery, 104. Solicitor's, 105, 218, 219. Is generally a mere passive right, 104, 105. Except in the one case of an innkeeper, 105. And to a certain extent also in the case of solicitors, 105, 2x8, 2ig. Effect of exercise of right of, 107. Distinction between, and a pawn, and a mortgage, 125, 126. Extent of innkeeper's, 141. 544 GENERAL INDEX. Life : See Asscrance. Limitations of Actions, Periods for, 20, 85, and note {t), 269-276. 321. 367, 393. 398, 399' 418, 425. List of most important periods, 270, note (A). Nature of an acknowledgment, and what is sufficient acknowledgment, 57, 58, 273, 274. Object of the Statutes of Limitation, 269, 270. The statutory periods apply to claim against separate estate of married woman, 270, note (A-). Effect of one of several joint debtors being beyond seas, 271, note (/•)• jNIeaning of " beyond seas," 272. The statute only bars the remedy, not the right, as regards contracts, 272. Otherwise as regards land, 272, note (/). Ignorance of rights does not prevent statute running, except in cases of fraud, 272, 273. Four ways in which the Statutes of Limitation may be prevented from applying, 273. An acknowledgment must alwaysbe in writing, 273, 274. Effect of acknowledgment by one of several, 274. Acknowledgment must be before action brought, 274, 275- Effect of part payment or payment of interest by one of several, 275. Difference if by one of several pai'tners. 276, note (r). As to issuing process to prevent statutes applying, 276. Liquidated Damages, Distinction between, and unliquidated damages and penalties, 439-443. Question as to whether, or penalty is one of law, 443. Locomotive, Causing damage, 430. Lodger, His goods cannot now be taken either in distress or execution, 78, 70. Rule for determining whether a person is a lodger, 79. LODGIXG-HOUSE KEEPERS, Liability of, 141, 142. GENEKAL INDEX. 545 Lord's Day Act, The, 306, 307. Loss OF Service : See Seduction. Actions for, may arise quite irrespective of seduction, and instance of, 405, 406. Lotteries, 303. Luggage, As to liability of railway company for loss of, 135, 136. Lunatic : See Non compos mentis. Distinction between, and an idiot, 252, 253. To what extent unsoundness of mind is a defence, 253. Acts done during lucid interval, 253. Can only give evidence during a lucid interval, 479, 480. M Maintenance, Definition of, 296. Exceptions to, 297. Malice, Difference between, in law and in fact, 378, 379. Malicious Arrest, 375, ^Ialicious Prosecution, A person obtaining a warrant may be liable for, 3 68. Definition of, 376. Three essentials in an action for, 376. Person cannot sue for, if there is a conviction standing against him, 376. The question of reasonable and probable cause is for the judge, 377. Respective functions of judge and jury in an action for, 377- Distinction as to proof in action for, and in action for false imprisonment, 377, 378. A prosecution not at the outset malicious may become so, 378. Difference between malice in fact and malice in law, 378. Nature of the malice necessary in action for, 378, 379. Difference between the findings as to reasonable and probable cause, and malice, 379. 2 J\I 54^ GENERAL INDEX. Malicious Prosecutiox — continued. Action for, will lie against a company, 379. No action lies for malicious prosecution of a civil action, 379- Xor by a subordinate against a commanding officer for bringing him to court-martial, 379. But action will lie for malicious presentation of a wind- ing-up petition, 379. Damages recoverable for, 461. ^Iare, Injured during voyage, 128, note {I). Marine Insurance : See Assurance. Market Overt, What is meant by, 337. Advantage of purchasing in, 337. Notwithstanding sale in, if goods are stolen and the thief convicted, restitution may be obtained by true owner, 337, 338. IJut not if goods only obtained by fraud not amounting to larceny, 338. An auctioneer selling in, is not protected, 348. Marriage : See Breach of Promise of Marriage. An agreement made in consideration of, must be in writing, 49, 53. Of a female does not now revoke any authority she may possess as an agent, 149. Position of an infant continuing a marriage engagement after attaining full age, 233. Infants not liable on contracts for, but if marriage takes place it is generally binding, 238. * Contracts in general restraint of, are invalid, 293. Married Woman, May insure her husband's life, and policy may be ex- pressed to enure for her separate use, 207. Position of, and of husband, as to contracts made and torts committed before marriage, 240-243, Position of, and of husband, as to contracts made after marriage and during cohabitation, 243-24S. Cases in which a married woman is in the position of a feme sole, 244. GENERAL INDEX. 547 Married W^'oman — continued. Position of, as to contracts under Married Women's Property Acts, 1882 and 1893, 244, 245. Cannot be made a bankrupt unless trading apart from her husband, 245. Committal order cannot be made against, 245, 246. Her position as to suing and being sued under the Married Women's Property Act, 1882, 246. Position of, and of husband, as to contracts made after marriage, but during separation, 248-250. Effect of notice in papers by husband that he will not be liable for his wife's debts, 250, 251. A husband is liable for the costs of any proceedings rendered necessary by his conduct, 251. Money lent to wife to buy necessaries, 251. Who is liable on a contract by a wife for necessaries when husband is dead unknown to her, 251, 252. Committing tort, husband still liable, 252. Claim against separate estate of, is governed by Statutes of Limitation, 270, note (k). Effect of a woman marrying her debtor, 279. A wife cannot sue her husband for a tort committed during coverture, even though she has since obtained a divorce, 365. Representatives of lunatic husband allowed to sue for wife's torts in connection with property, 365, note {p). Cannot lawfully be detained by her husband, 366. Master and Servant, As to hiring of servants, 226. Doubtful whether a contract for service for life does not require to be by deed, 226. A hiring always presumes reasonable wages, 226. Different kinds of servants, 226. Effect of a general hiring, 226, 227. As to the power of a servant to bind his master by his contracts, 227, 228. As to master's liability for his servant's torts, 228, 364, 409, 410. Servant entitled to wages during temporary illness, 228. 548 GENERAL INDEX. Master and Servant — continued. Master not bound to provide medical attendance for his servant, though he is for apprentice, 228. But if he sends for a medical man he will be liable, and cannot make deduction from wages, 228. Position with regard to injuries done by one servant to another acting in course of common employment, at common law, 228, 229. And now under Employers' Liability Act, 1880, 229, 422-426. Length of notice to determine relationship of, 229. "When master may discharge servant without notice, 229. Effect of death on relationship of, 230. Master's position as to giving a character to servant, 230. Master may reasonably chastise his apprentice, 363. Liability of master for servant's torts, 409, 410. Relationship of, may exist between cab proprietor and driver, 411. As to the position of a contractor or a sub- contractor, 411. Servant's claim against railway company when ticket to travel taken by master, 413, 414. Master's claim against railway company for his own property when ticket to travel taken by servant, 414. Damages recoverable by a servant for wrongful dis- missal, 463. Master of a Ship: See Captain or Master of a Ship. Maxims — Actio personalis moritur cum persond, 5, 6, 323, 355, 417. Caveat emptor, 90, 112, 113, 207. Delegatus nan potest delegare, 144, 410. Every man's house is his castle, 80. Ex dole vialo non oritur actio, 289. Expressum facit cessare taciturn, 21, 70. Ex turpi causa non oritur actio, 319. In pari delicto potior est conditio defendentis et possi- dentis, 291. Nemo dat quod non hahet, 336. GENEKAL INDEX. 549 Maxims — continued. Omnis ratihahitio retrotraliitur et mandato priori mqui- paratur, 145, 146. Qui facit 2}er alium facit per se, 143, 409, 420. Quod ah initio nan valet in tractu temporis non con- valescit, 307. Res ipsa loquitur, 407. Respondeat superior, 409. Sic utere tuo ut alienum non Icedas, 343. The king can do no wrong, 3 1 7, and note {g). Volenti non fit injuria^ 401, 424, 438. Mayhem, What it is, 360. Medical Men^, When they may recover their fees, 221. No privilege in giving evidence, 493. Members of Parliament, Position of, as regards privilege from slander or libel 387. Memorandum, Or note of contract to satisfy the Statute of Frauds, 49. Mercantile Agents, 151, 152. Merger, What it is, 10, 15. Is caused by recovering judgment on a deed, 10, 15. Misrepresentation: See Fraud. Distinction between, and condition and warranty, 109, no. Mistake, As to recovery of money paid under, 281, 283. In telegraphic message, 315. Monopolies : See Patent. The Statute of, 209. Month, Meaning of the term, 30. Monthly Tenancy, Notice to determine, 65, 66. 550 GENERAL INDEX. Moral Consideration, Is not suiFicient to support a simple contract, 43. But a moral obligation which was once a legal one will support a promise, 44. But this does not apply to promises to pay a debt dis- charged by bankruptcy, 45. Moral Fraud : See Fraud. Mortality, Bills of, 222. Mortgage, When a mortgage of fixtures requires registration as a bill of sale, 74. Distinction between a mortgage of personal property, a lien, and a pledge, 125, 126. Remedy of an equitable mortgagee, 126, note (.f). Action on, must be brought within twelve years, 270, note (/.•). Mortgagor, Provision of Judicature Act, 1S73, as to his powers, 67, 322, 323. When allowed to make leases, 67. Motive, Of a defendant cannot be looked to in an action ex con- tractu, but can be in an action ex delicto, 449, 450. Music, Provision of Act of 1S82 as to copyright in, 211. Municipal Corporation : See Corporation. Cannot maintain an action for libel, 381. Mutual Assent, Necessary to a simple contract, 32, 33. N Necessaries, For an infant or a married woman, what are, 234, 247. Negligence : {See also the different headings of specific acts of Negligence.) Liability of voluntary bailee for, 123, 124, GENERAL INDEX. 551 Negligence — continued. Must be shewn to render innkeeper liable for personal injury to guest, 141. Generally as to torts arising peculiarly from, 407-438. The functions of judge and jury, 407. Res ipsa loquitur, 407. Burden of proving is on plaintiff, 407, 408. May arise from act of agent or servant, 409, 410. Injury arising from negligence in driving vehicle, 410, 411. Injury arising from negligence of a sub- contractor, 411. Liability in respect of dangerous goods or animals, 411, 412. An action for, may be maintained irrespective of privity, 413' 414- Injuries from nuisances, 414. Injuries in respect of faulty erection or building, 414. The doctrine of invitation, 414. Liability in respect of engines, shafts, windmills, &c., near a public road, 414, 415. When an injury is done by several, one or all may be sued, but there is no contribution, 415. The liability of carriers of passengers depends on ques- tion of, 416. Maxim of Actio personalis moritur cum persona, and statutory provisions thereon, 417-419. From train overshooting platform, 420. When master liable for injury done to a servant by negligence of a co-servant, 420-426. Causing injury to land or buildings, 426, 427. Collisions arising through, 429. Causing fire, 429, 430. Injury through sparks of an engine is not, 430. Unless some negligence, 430, and note (r). Injury from traction or similar engine is, 430. Causing waste, 431. By sheriff's officers, 431, 432. Consisting of non-arrival of train at proper time, 432. Defences to an action for, 433-436. Contributory, 434-438. Necessary for plaintiff to prove no contributory negli- gence if injury may have happened from that cause, 435. 436- 552 GENERAL INDEX. Negotiable Instruments : See Bills of Exchange and Promissory Notes. Pledge of, by stockbroker or money-dealer, 184, 185. Nemo cat quod non habet, 336. Newspaper, Reports in, of proceedings, privileged to a certain extent, 387, 388. Proprietor, editor, or publisher of, not liable to be prosecuted for libel in, without order of judge, 391. Course that may be taken by proprietor of, in respect of libel, 392, 393. Nominal Damages : See Damages. Nominal Partner : See Partnership. Non compos mentis, Two classes of persons of this kind, and difference be- tween them, 252. Liability of such persons on their contracts, 253. Idiots cannot give evidence, and lunatics only can during a lucid interval, 4S0. Non-performance of Contracts : See also particular titles. Excuses for, generally, 269-279. Notice, To quit premises, 65, 66, Of dishonour of bill or note, 17 7-18 1. Need not now be given before bringing action against justices, 367. Required under Employers' Liability Act, 1880, 425. Notice to Inspect and Admit, Object of giving, &c., 482. Notice to Produce, Object of giving, &c., 466. Noting and Protesting, What is meant by, and when necessary, 188, 189. Nuisance, Definition of, 329. "What will constitute, and instances, 329. GENERAL INDEX. 553 Nuisance — continued. Party may be liable for, as a probable consequence of his acts, 330. Question whether landlord or tenant liable for, in case it occurs on demised premises, 330. A person coming to a nuisance has still a right to have it abated, 330, An act may be a nuisance, though a benefit to others. May be committed, though act authorised by Parlia- ment, 331. Position in such case as to onus of proof, 331. Difference between a public and a private nuisance, 33i> 332. When a private remedy lies for a public nuisance, 332. Abatement of, 333, 334. Notice usually necessary before entering on another's lands to abate, 334, A person may not go on another's lands to prevent, 334- May arise peculiarly from negligence, 414. Damages recoverable in respect of, 460. O Oaths Act, 1888, 476. Object of a Contract, Must not be illegal or immoral, 46. Obligation, Arising from breach of a contract, 22, 23. Offer, Made under seal cannot be withdrawn, 37. But not under seal may be, 37. Necessity of withdrawal of offer being communi- cated, 37. Officer, Superior, Not liable for acts done in the course of his duty, or justified by his position, 318, 319. Is justified in detaining subordinate, 366. 554 GENERAL INDEX. Officer, Superior — continued. No action lies against, for malicious prosecution in bringing subordinate to court-martial, 379. OmNIS RATIHABITIO RETROTRAHITUR ET MANDATO priori iEQUI- PARATUR, 145, 146. Onerous Property, May be disclaimed by trustee in bankiniptcy, 87. Effect of such disclaimer, 87. Onus probaxdi, Is on party seeking to prove affirmative in an action, 494, 495- But presumption of law may put it where it would not otherwise be, 495. Rule in the case of voluntary settlements, 495, 496. Opinion, When matters of, are receivable in evidence, 485, 486. An affidavit on an interlocutory application may contain a statement founded only on deponent's belief, 486, 487. Outgoings, Covenant to pay all, 70. Parent and Child : See Infants. Father justified in chastising his child reasonably, 363. Or in detaining him, 366. Evidence as to legitimacy, 469, 470. Child boi-n duiing wedlock is presumed to be legitimate, 496. Parent cannot bastardize his or her issue, 471. Parol Evidence, Is not admissible to vary a written contract, but is admissible to explain a latent ambiguity, 27, 28. Also admissible to explain technical words, or words which have by custom acquired a particular mean- ing, 28. ^ "Where there is an executory contract afterwards carried out by deed, the deed only can be looked to, 28, 29. GENERAL INDEX 555 Parol Lease, When good, 64. Effect of, when required to be in writing, 64, 65. Particular Average, 200. Parties to Actions, Are now good witnesses, 478, 479. Partnership, Definition of, 154. Actual and nominal partners, 155. "When liability as partner constituted by holding out, 155- What will constitute a, 155. Provisions of Partnership Act, 1890, hereon, 155-157. Quasi- partnership, 157. Dormant partner, 157. Liability of partners ex contradu, 157. Bill given by a partner in the firm's name, 157, 158. Pledge by partner, 158. Effect of agreement restricting powers of partners, 158. Liability is joint, 158, 159. Liability of partners ex delicto, 159. Introduction of new partner and retirement of old partner, 159. Dissolution of, 160, 161, Powers of partner after dissolution, 161. As to infants and others being partners, 161, 162. Remedies between partners, 162, 163. Passenger on Railway, When he has a right of action against railway company for injuries happening to him during the journey, 416, 417. Damages recoverable for injury to, 459. Passengers' Luggage, Generally as to, 135, 136. Patent, Definition of a, 209. The Statute of Monopolies, 209. Term for which it may be gi'anted, &c., 209, 210. Remedy for infringement of, 210. 5S6 GENERAL INDEX. Patent Ambiguity, Parol evidence not admissible in the case of, 27, 28. Pawn, Distinction between, and a lien and a mortgage, 125, 126. Pawnbrokers, 126, 127. Absolutely liable for loss by fire, 127. llight of pledgee to redeem on production of pawn- ticket, 127. Their special power to arrest, 370. Paymkkt, Definition of, and generally a.s to, 260-266. Itule as to appropriation of payments, 261, 262. Exception to rule, 262, note (/). A smaller sum cannot satisfy a greater, except in some special cases, 262. But something different may, 262, 263. Effect of remitting a smaller sum in full discharge of disputed account, 263. Decision in Faakes v. Beer, 263, 264, Effect of, by a cheque, bill, or note, 265. Through the post, 265, 266. Into court, 268. Of interest or part-payment of principal prevents Statutes of Limitation applying, 275. Effect of such a payment by one of several persons jointly liable on a contract, 275. Pecuniary or Propriltary Interest, Admission of entries against, 471. Pedigree, To prove matters of, hearsay evidence is admitted, 469, 470. Penalty, Sum agreed to be paid by way of, cannot be enforced, 440, 441. "Whether more than a named penalty can be recovered, 442. Question of whether penalty or liquidated damages is one of law, 443. GENERAL INDEX. 557 Penalty — continued. Provision that on failure to pay one instalment the whole to become due, not a penalty, 443. Performance of Contracts : See also particular titles. Generally as to, 260-269. May sometimes be presumed, 264, 265. Excuses for non-performance generally, 269-279. Peril, Of the sea, 203, note (//). Perishing, Of goods after contract for their sale, 98. Person, Torts affecting the, 356-406 : See also particular titles. Assault and battery, 356-365. False imprisonment, 365-376. Malicious arrest, 375. Malicious prosecution, 376-379. Libel and slander, 380-400. Seduction and loss of service, 400-406. Injuries to the person from negligence, 407-438. Personal Luggage, "What is, 135. Liability of railway company for, 135, 136. PBnrsiciANS, When they may recover their fees, 221. Pledge, Distinction between, and a lien, and a mortgage, 125, 126. If pledge docs not realize sufficient, pledgee may sell, 126. A pledgee cannot foreclose, 126, note {x). Of securities by stockbrokers or money-dealers, 1 84, 1 85. Policy of Assurance : See Assurance. Post, When a contract taking place through, is complete, 36, 37. Payment made through the, 265, 266. 55^ GENERAL INDEX. PouxD Breach, S^. Power of Attorxey, Provision of Conveyancing Acts as to, 149, note (>/). Presumption, Cases in -wliich presumptions furnish evidence, 474, 475- May sometimes cause the burden of proof to be where it would not otherwise be, 495. Various cases of, 495. PjaMARY AND SECONDARY EVIDENCE : See EVIDENCE. Difference between, and reason for difference, 465, 466. Rules as to, and exceptions, 466, 467. Principal and Agent, Wlicn an agent must be authorized by writing to sign a contract, 57. Qui facit per alium facit pel' se, 143, 409, 420. Persons not sui juris may act as agents, 144. Delegatus non potest dde, 344- 345- What will amount to, 345, 346. Secondary Evidence : S'^e Evidexce. Seduction, Nature of action fur, and generally as to, 400, 401. Damages recoverable for, 402. As to the relationship of master and servant necessary to enable a person to sue for, 402, 403. An action may l)e maintained for seduction of a married woman. 404. Effect of woman being in service of seducer, 404. It is a good defence to shew that defendant not the father of the child, 405. Action for loss of services irrespective of seduction, 405- Action for maliciously inducing a person to break his contract, 405, 406. Self-serving Evidence, 485. Separation, Contract for future separation of husband and wife contrary to public policy and illegal, 29S. Requisite to separation arrangement, 298. GENERAL INDEX. 565 Servaxt : See Master and Servant. Set-off, In the case of goods bought of a factor, and principal suing, 154. Definition of, 276. Former rules as to, 277. Statutory provisiojis as to, 277, 278. Defendant may now obtain damages against a plaintiff in an action, 277. Sheriff, Duties of sheriff's officers, 431. Liability of, if goods he seizes are taken from him, 431. 432. Damages recoverable against, for officer's negligence, 462. Ships, Law as to generally, now contained in Merchant Shipping Act, 1894. 198. How shares iu, transferred, 198. As to ownership of, 198, 199. Powei\s of masters of, during voyage, 199. Jettison, 200. As to general and particular average, 200. As to salvage, 200. Pilot's services, 201. Rules as to damages in case of collision when both ships in fault, 201. Bottomry and respondentia, 201, 202. Position of person advancing money to pay dock dues, 202. Differences between a charter-party and a bill of lading, 202. As to freight, 203. Liability of owners of, for losses during a voyage, 203, 204. Meaning of "dangers and accidents of the sea," 203, note (Ji). Position as to contributory negligence, 437. Sic utere tuo ut alienum non l^das, 343. 566 GENERAL INDEX. Simple Contracts, Distinction between, and specialties, 15-20. Definition of, 31. Four essentials to, 31. Mutual assent always necessary, 31-33. What is necessary to establish a contract from different instruments, 33, 34. As to a contract through the post or by telegram, 35' 36- From the offering of a reward, 38. As to consideration, 39-46. If in writing, the writing must usually shew the con- sideration as well as the promi.se, 40, 41. When an executed consideration is sufficient for, 41, 42. A merely moral consideration is not sufficient for, 43' 44- Chief cases in which writing necessary for, 47. Limitation for suinfir on, 2-1. Slander : Si'c Libel and Slander. Slander of Title, What it is, 335. Special damage must be proved in, 335. Applies to goods as well as to lands, 335. Smaller Sum, Cannot satisfy a greater, 262. Solicitors, Must deliver a signed bill before suing for costs ex- cept leave obtained. 217. On what grounds such leave will be given, 217. Assignee of bill of costs may sign and deliver bill, 217, note (I). May contract for remuneration by commission or otherwise, 217, 21S. Costs may be made a charge on property recovered and raised thereout, 218. Lien of, 218, 21 9. Lien of London agent, 219. Their duty, 219. When proceedings commenced by, may be discontinued, 219. GENERAL INDEX. 5^7 Solicitors — continued. Liable for their own or their agents' negligence or fraud, 219, 220. When negligence may be set up as a defence to an action for costs, 220. Position of, in dealing with clients, 220. Payment to a solicitor in an action is sufficient, 261. When privileged in what he has written on behalf of a client, 386, 387. When liable for wrongly directing a sheriff to levy under Sifi. fa, 432. Privilege of, with regard to giving evidence, and extent of such privilege, 490-492. Sox ASSAULT DEMESXE, Defence of, 362. Sparks, From locomotives causing damage, 430. Special Damages : See Damages. Special Pleaders, Not at the bar, may recover their fees, 216. Specialties, Distinctions between, and simple contracts, 15-21. Limitation for suing on, 270. Specific Delivery of Chattels, Provisions as to, 355, 444, 445- Practice of Chancery as to, 445, note {d). Specific Performance, Of contract of sale of goods, 109. Staging, Liability for defective, 302. Stakeholder, His position, and rights of the parties as to deposit, 301, 302. Stamping Instruments, Times allowed for, 307. Effect of nob stamping within proper time, 307. Proper stamp for and agreement and exemptions, 307, 308. 568 GENERAL INDEX. Stamping Instruments — continued. Who takes the objection to insufficiency of stamp, 307. Power to remit penalties for not, 307, note {x). Statutes : for Index of, see ante, p. xxxi. Steam Traction-engine. As to damage caused by, 431. Stock Exchange, As to tran.sactions on, being gaming contracts, 300, 301. Provisions of Leeman's Act, 303, 304. Stolen Goods, nights as to, and effect of sale in market overt, 337, 338.^ Provisions of Sale of Goods Act, 1893, 337, 338. Stoppage in transitu, Definition of, 105. Origin of, 105. When the goods are in transitu, 105, 106. How effected, 107. Notice of, must be given not to shipowner, but to master of vessel containing the goods, 107. Effect of, on the contract, 107, 108. Effect of sale of goods during course of transit, 1 08. As to right against a sub-purchaser who has not paid his purchase-money, 108. SUBPCENA, Service of, must be personal, 223. Subrogation, Meaning and instance of, 206. Subsoil, Position of owner of, as regards surface owner, 327, 328. Sufferance, Position of tenant at, 66. Sufficiency, Of a consideration cannot be inquired into, 39, 40. Suicide, Effect of, on a policy of assurance, 208, 209, GENERAL INDEX. 569 Support, As to the right to lateral, 328, 427, 42 8. Surety : See. Guarantee. Ilis rights on paying principal's debt, 51. To or for a firm, 51, 52. Acts which will operate to discharge him, 52. Effect of a principal accepting a composition under the Bankruptcy Act, 1883, 53. Surface, Rights of owner of, as against owner of subsoil 427, 428. Surgeons, When they may recover their fees, 221. Provision of Veterinary Surgeons Act, 1881, 222. Suspicion, As to arresting a person on, 368, 369. T Telegraphic Message, Mistake in, 315. Tender, What is meant by a, 266. The essentials to constitute a valid tender, &c., 266, 267. Must be absolute and unconditional, 267. In what money it may be made, 267, 268. When country notes or cheques are a good tender, 268. If refused, the money must still be kept ready, 268. Effect of, 268. Tickets, Notices on, constituting a contract, 38. Time, When of the essence of a contract, 29, 30. Tithe Rent-charge, Is a charge on the lands, 69. Is always payable by owner, 69. 5/0 GENERAL INDEX. Title, To be shewn to lands, 63. As to warranty of, on sale of goods, 109 r 14. Slander of, 335. To goods generally, 336-342. As to stolen goods, 337. As to goods obtained by fraud, 337, 338. Rights of a finder of goods, 339. Treasure trove, 339, 340. Property in animals, fish, and game, 340. Torts : For particular torts, see individual titles. Definition of a tort, 309. Divisions of, and as to, generally, 309-319. The newness of a tort is no objection to an action, 310. Distinction between, and crimes, 312, Although amounting to crimes, civil remedy not neces- sarily suspended until after prosecution, 313. Cases in which civil and criminal proceedings cannot both be taken, 313, 314. As distinguished from contracts, 314-317. It may sometimes be in a pei-son's election to sue either in tort or on contract, 316, 317. Privity is never necessary in torts, 317. Maxim that the king can do no wrong, 317, note (7). Position of judges, superior officers, &c., as to, 318. There is no indemnification generally between wrong- doers, 319. Affecting land, 320-335. Affecting goods and other personal property, 336-^55. Affecting the person, 356-406. Arising peculiarly from negligence, 407-43S. Looser principles are observed in awarding damages foi- torts than in respect of breaches of contract, 450. Traction- engine, As to injui'v done by, 430, 431. Trade-mark, The use of, implies a warranty, 114, 215. Definition of, 2x3. What it may and may not consist of, 213. Remedies for infringement of. 213. GENERAL INDEX. 57 ^ Trade-Mark — continued. Provisions of the Patents, Designs, and Trade-marks Acts, 18S3 and 1888, 214, 215. Requisite proof in action for infringement of, 215. Right of action for infringement of, does not die with person, 355. Trade Union Act, 187 i, 295, 296. Trains, Overshooting platform. 420. A company not liable for injury arising from sparks emitted by, 430. XJnpunctuality of, 432, 433. Treasure Trove, Rights as to, 339, 340. Treble Damages, 453. Trees, Overhanging another's land, 333, 343 Trespass to Goods, Definition of trespass, 336, Distinction between, and conversion, 336, 342. Meaning of trespass de bonis asportat/s, 342. Instances of, 342. Justification of, 350, 351. Who is the person to sue in respect of, 353, 354. Remedy for, 354. Action survives to executors or administrators, 355. Trespass quare clausum fregit. Meaning of, 320. An action for, tries the titles to land, 321. Possession is an essential to an action for, 321. Limitation of action, 321. Action for in respect of land abroad cannot be brought here, 321. When a reversioner may sue for, and damages, he will recover, 322, 455. When a mortgagor may sue for, 322, 323. Special damage need not be proved in action for, 323. Right of executors or administrators to sue for, 323, 324- 5/2 GENERAL INDEX. Trespass quare clausum fregit ^continued. Liability of estate of deceased person in respect of, 323, 324- What will amount to, 324. Obligation as to fencing out cattle, 324. Owner of cattle not liable for their trespass whilst passing along highway, 324. A lawful owner out of possession may re-enter peace- ably, but must not use force, 325. License to trespass may be revoked, 325, 326. A trespasser may be forcibly ejected after refusal to leave, 326. A person is justified in forcibly defending possession of his lands, 326. Damages recoverable for, 460. Trial, Effect of a plaintiff or defendant not appearing at, 497, 498. Trover, Furujor action of, 354. Trusts, Provision of Statute of Frauds as to, 48. Truth of Libel or Slander, Complete defence in civil actions, 390, 397. At common law no defence to criminal prosecution, 391- But now it is if also shewn that publication was for the public good, 391. Turf Commissioner, Receiving bets must pay over to principal, 299. Making a bet for principal not now entitled to be in- demnified, 299. U Uberrimae fidei, Fire and marine insurances are said to be, 207, 208. Unliquidated Damages, Distinction between, and liquidated, 439, 440. GENERAL INDEX. 573 USAXCE, Meaning of the term. 176. Use axd Occupation, Action for, 76. Vendor and Purchaser, When the property in goods passes, 93-98. When vendor may sue for the price of the goods. 103, 456. Lien of vendor, 103, 104. Vendor's right of stoppage in transitu, 105-108. Rights of vendor on vendee's breach, 109, 456. Rights of vendee on vendor's breach, 109, 456. Power of vendor left in possession of goods, 152, 153. Veterinary Surgeons, Must register to entitle them to recover their fees, 222. Voluntary Deed. In what respects not as good as a deed for valuable consideration, 18, 19. If called in question, burden of proof lies on person taking a benefit under, 495, 496. Volenti non fit injuria, 401, 424, 438. W •Wager Policies : See Assurance. Are invalid, 206, 306. Wagers : See Gaming Contracts. Warrant, Definition of, and mode of acting thereunder, 366. As to liability of justice granting, 366, 367. Protects constable acting under, 368. Person obtaining, is not liable for false imprisonment, but may be for malicious prosecution, 368. 574 GENERAL INDEX. Warrant — continued. When a constable may arrest without, 368, 369. When a private person may arrest without, 369. Warrant of Attorney, Difference between, and a cognovit, 10. Warranty, On the taking of furnished house, 90. Definition of, 109. Distinction between, and condition and misrepresenta- tion, 109, 1 10. Remedy for breach of warranty, or condition, or in respect of misrepresentation, 109-111. Provision of Sale of Goods Act, 1893, ^^ ^^ conditions and warranties, no. iii. If subsequent to sale, bad, 1 1 1. What will amount to a, in. May sometimes be implied, 1 1 i-i 14. Rea-son of implied warranty, i i i. As to warranty of title, 112. As to warranty of quantity and quality, i 1 2-1 14. Effect of delivery of goods more than, or less than agi-eed, 1 1 2. Cases in which warranties of quality implied, 113, 114. Does not extend to defects which are apparent, 1 14. Damages recoverable for breach of, 457, 458. Waste, Definition of, 334 Persons liable for, 334. Water, As to right to, where flowing in a defined channel, and where only percolating through the ground, 4, 5, 327. Must not be fouled in either case, 327. Weekly Tenancy, Notice to determine, 65, 66. Wife : See Married Woman. Effect of contracts by, as husband's agent, but after his death, 147, note [q), 251, 252. GENERAL INDEX. 575 Will, Tenancy at, May arise by reason of Statute of Fraiuls, 64, 65. Wills, May prove themselves after thirty years, 475, 476. Recitals in, 476, note (q). How proved at trial, 484, 485. Without Prejudice, Communications made, are privileged from being given in evidence, 493. Witnesses : See Evidence. Their claim for expenses is not against solicitor, but the party who has subpoenaed them, 221. Are entitled to be paid expenses, but not generally for loss of time unless a professional witness, 222, 223. Service of subpoena on, must be personal, 223. Statements of, are al'solutely privileged, 389. Damages recoverable against, for not attending, 462. Evidence of, by aflBrmation under the Oaths Act, 1888, 476. Distinction between admissibility of evidence and cre- dence of, 500. Writing, When necessary for a contract, 47-49* Not necessary on a contract for sale of fixtures, 63. Necessary in representations concerning a person's credit, 287. Wrongdoers, No contribution and indemnity between, 3 1 9. Exception under Directors' Liability Act, 1 890, 3 1 9. Wrongful Dismissal : See IMaster and Servant. Damages recoverable in action for, 463. Year, An agreement not to be performed within a year must be in writing, 49, 53, 54. 576 GENERAL INDEX. Year — continued. When everything on one side is to be performed within a year, agreement is not within the statute, 54. Year to Year, Liability of tenant from, as to repairs, 68. Yew-tree, Liability in respect of injury to neighbour's horse by eating, 343. Printed by Ballaxtvne, H.vnson & Co. Edinburgh and London A CATALOGUE OF LAW WORKS PUBLISHED AND SOLD BY Stevens &. Haynes, fall) fublrsljers, goohstKers & Cvportcrs, i3, BELL YARD, TEMPLE BAR, LONDON. BOOKS BOUND IN THE BEST BINDINGS. Works in all Classes of Literature supplied to Order. FOREIGN BOOKS IMPORTED. LIBRARIES VALUED FOR PROBATE, PARTNERSHIP, AND OTHER PURPOSES. LIBRARIES OR SMALL COLLECTIONS OF BOOKS PURCHASED. A large Stock of Reports of tJu various Courts of England, Ireland, and Scotland, always on hand. Catalogues and Estimates Furnished, and Orders Promptly Executed. NOTE. — r^ avoid confusing our firm with any of a similar name, we beg to notify that we have no connexion -whatever with any other house of business, and we respectfully req uest that Corre- spondents zuill take special care to direct all comm unications to the above names and address. 15 00. Q.4.96. STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. ■ INDEX OF SUBJECTS. PAGE ABSTRACT DRAWING— Scott 32 ADMINISTRATION ACTIONS— Walker and Elgood 18 ADMINISTRATORS— Walker 6 ADMIRALTY LAW- Kay 17 Smith 23 AFFILIATION— Martin 7 ARBITRATION — Slater . . 7 BANKRUPTCY— Baldwin 15 Ilazliii 29 Inderniaiir (Question 29 BAR EXAMINATION JOURNAL 39 BIBLIOCRAl'IIY 40 BILLS OF EXCHANGE— Willis 14 BILLS OF LADING — Campbell 9 Kay . ■ 17 BILLS OF SALE— Baldwin .... ... 15 Indcrniaur . . 28 Ringwood 15 BUILDING CONTRACTS— Hudson 12 CAPITAL PUNISHMENT— Copinger 42 CARRIERS— Sec RAILWAY LAW. ,, SHIl'MASTKRS. CHANCERY DIYISION, Practice of— Brown's Edition of Snell ... 22 Inderniaur 25 Williams 7 And see EQUITY. CHARITABLE TRUSTS— Cooke 10 Whiteford 20 CHURCH AND CLERGY- Brice 9 CIYIL LAW— 6-.V ROMAN LAW. CLUB LAW— Wertheimer 32 CODES— Argles 32 COLLISIONS AT SEA— Kay . . 17 COLONIAL LAW— Cape Colony T)^ Forsyth 14 Tarring 41 CO.MiMERCIAL AGENCY— Campbell 9 COMMERCIAL LAW— Hurst and Cecil . , . . . COMMON LAW— Indennaur .... . . . COMPANIES LAW— Brice Buckley Reilly's Reports Smith Walts COMPENSATION— Browne Lloyd CO^H•ULSORY PURCHASE— Browne CONSTABLES— .W POLICE GUIDE. CONSTITUTIONAL LAW AND H I.STORY— Forsyth ........ Taswell-Langmead Thomas CONSULAR JURISDICTION— Tarring CONYEYANCING— Copinger, Title Deeds . . . . Copinger, Precedents in Dcane, Principles of COPYRIGHT— Copinger CORPORATIONS— Brice Browne COSTS, Crown Office- Short COVENANTS FOR TITLE— Copinger CREW OF A SHIP- CRIMINAL LAW— Cojiinger Harris . . CROWN LAW— Forsyth Hall Kelyng Taswell-Langmead Thomas CROWN OFFICE RULES— Short CROWN PRACTICE— Comer Short and Mellor CUSTOM AND USAGE— Brow ne Mayne . . DAMAGES— Mayne DICTIONARIES— Brrwn . FACE II 24 16 17 29 39 47 «9 19 i 14 21 28 42 45 40 23 45 16 19 4« 45 17 42 14 30 35 21 28 10 10 19 3S 31 26 STEVENS <^ HAYNES, BELL YARD, TEMPLE BAR. INDEX OF SUBJECTS continued. DIGESTS— PAGE Law Magazine Quarterly Digest . 37 iSIenzies' Digest of Cape Reports. 38 DISCOVERY— Peile 7 DIVORCE— Harrison 23 DOMESTIC RELATIONS— Eversley 9 DOMICIL— 5cv PRIVATE INTER- NATIONAL LAW. DUTCH LAW 38 ECCLESIASTICAL LAW— Brice 9 Smith .23 EDUCATION ACTS— See ^L\GISTERIAL LAW. ELECTION LAW and PETITIONS— Hardcastle 33 O'Malley and Hardcastle ... 33 Seager 47 EQUITY— Blyth 22 Choyce Cases 35 Pemberton 32 Snell 22 Story 43 Williams 7 EVIDENCE— Phipson 20 EXAMINATION OF STUDENTS— Bar Examination Journal ... 39 Indcrmaur 24 and 25 Intermediate LL.B 21 EXECUTORS— Walker and Elgood 6 EXTRADITION— Clarke 45 See MAGISTERIAL LAW. FACTORIES— See MAGISTERIAL LAW. FISHERIES— See MAGISTERIAL LAW. FIXTURE.S— Brown 33 FOREIGN LAW— Argles 32 Dutch Law 3^ Foote 36 Pavilt 32 FORESHORE— Moore 3° FORGERY— 5«?c MAGISTERIAL LAW. FRAUDULENT CONVEYANCES- May 29 GAIUS INSTITUTES- Harris 20 GAME LAWS— See MAGISTERIAL LAW. GUARDIAN AND WARD— Eversley 9 HACKNEY CARRIAGES— See ^L\GI.STERIAL LAW. HINDU LAW— Coghlan 28 Cunningham 38 and 42 Mayne 3^ HISTORY— Taswell-Langmead 21 HUSBAND AND WIFE— Eversley 9 INDEX TO PRECEDENTS— Copinger 40 INFANTS— Eversley 9 Simpson 43 INJUNCTIONS — Joyce 44 INSTITUTE OF THE LAW— Brown's Law Dictionary ... 26 INSURANCE— Porter 6 INTERNATIONAL LAW— Clarke 4.S Cobbett 43 Foote 3^' Law Magazine 37 INTERROGATORIES— Peile 7 INTOXICATING LIQUORS— See MAGISTERIAL LAW. JOINT STOCK COMPANIES— See COMPANIES. JUDGMENTS AND ORDERS - Pemberton ^° JUDICATURE ACTS— Cunningliam and Mattinson . . 7 Indermaur 25 Kelke 6 JURISPRUDENCE— Forsyth '4 Salmond ^3 JUSTINIAN'S INSTITUTES— Campbell 47 Harris 20 LANDLORD AND TENANT— Foa ^' LANDS CLAUSES CONSOLIDA- TION ACT— Lloyd 13 LATIN MAXIMS 28 LAW DICTIONARY— Brown 26 L.AW MAGAZINE and REVIEW. 37 LEADING CASES— Common Law 25 Constitutional Law .... 28 Equity and Conveyancing ... 25 Hindu Law 28 International Law 43 LEADING STATUTES - Thomas 28 STEVENS ^ HAYNES, BELL YARD, TEMPLE BAR. INDEX OF SUBJECTS-^''«/'««'^- PACE LEASES— Copinger 45 LEGACY AND SUCCESSION— Hanson 10 LEGITIMACY AND MARRIAGE— See PRIVATE INTERNA- TIONAL LAW. LICENSES— ^-r.- MAGISTERIAL LAW. LIFE ASSURANCE— Buckley 17 Reilly 29 LIMITATION OF ACTIONS— Banning 42 LUNACY— Williams 7 MAGI.STERIAL LAW— Green\v(KKl and .Marlin . ... 46 MAINTENANCE AND DESERTION. .Martin 7 MARRIAGE .md LEGITIMACY— Foote 36 MARRIED WCMEN'S PRO- PEK TY ACTS— Jirown's Edilion of Griffith . . 40 MASTER AND SERVANT- Evcrslcy 9 Sec MACISTKRIAL LAW. „ SIIIIMASTERS^ SE.V.MEN. MERCANTILE LAW 32 Campbell 9 Duncan .... -33 Ilurst and Cocil .11 SlatLT ... . . 7 See Sini'M ASTERS. „ STOPPAGE IN TRANSITU. MERCHANDISE MARKS — Daniel 42 MINES— Harris .^7 :tee MACiyPERIAL LAW. MORTMAIN— .9^ 7 PI LOTS - i^ay .17 POLICE GUIDE— tirccnwcKKl and Martin .... 46 POLLUTION OF RIVERS— HiRgins 30 PRACTICE BOOKS— Bankruptcy 15 Companies Law ... 29 and 39 Compensation 13 Compulsory Purchase 19 Conve)-ancinjj 45 Dam.ajjcs 31 Ecclesiastical Law 9 Election Petitions 33 Ecjuity 7, 22 and 32 Injunctions 44 Magisterial 46 Pleading, Precedents of . . . 7 Railways 14 Railway Commission ... 19 Rating 19 Supreme Court of Judicature . . 25 PR.\CTICE STATUTES, ORDERS AND RULES— Emden 11 PRECEDENTS OF PLEADING— Cunningham and Mattinson . . 7 Mattinson and .Macaskie ... 7 PRIMOGENITURE— Lloyd 13 PRINCIPLES— Brice (Corporations) 16 Browne (Rating) 19 Deane (Conveyancing) .... 23 Harris (Criminal Law) .... 27 Houston (Mercantile) .... 32 Indennaur (Common Law) , 24 Joyce (Injunctions) 44 Ringwood (Bankruptcy) . . . 15 Snell (E«iuity) 22 PRIVATE INTERNATIONAL LAW— Foote :;6 S7 EVENS &- HAYNES, BELL YARD, TEMPLE BAR. NDEX OF SUBJECT3-'W'/""^ev/. PAGE PROBATE— Hanson lO Harrison 23 PROMOTERS— Watts 47 PUBLIC WORSHIP— Brice 9 QUARTER SESSIONS— Smith (F. J.) 6 QUEEN'S BENCH DIVISION, PracUce of— Indermaur 25 QUESTIONS FOR STUDENTS— Aldred 21 Bar Examination Journal • • . 39 Indermaur 25 Waite 22 RAILWAYS— Browne ig Godefroi and Shortt 47 See MAGISTERIAL LAW. RATING— Browne 19 REAL PROPERTY— Deane 23 Edwards 16 Tarring 26 REGISTRATION— Elliott (Newspaper) .... 14 Seager (Parliamentary) .... 47 REPORTS- Bellewe 34 Brooke 35 Choyce Cases 35 Cooke ■ • • 35 Cunningham 34 Election Petiiians 33 Finlason 32 Gibbs, Seymour Will Case . . 10 Kelyng, John 35 Keljmge, William 35 Reilly 29 Shower (Cases in Parliament) . 34 ROMAN DUTCH LAW— Van Leeuwen 38 ROMAN LAW— Brown's Analysis of Savigny . , 20 Campbell 47 Harris . . 20 Salkowski I4 Whitfield I4 SALVAGE— Jones 47 Kay 17 SANITARY ACTS— See MAGISTERIAL LAW. SAVINGS BANKS— Forbes 18 SCINTILLAE JURIS— Darling (C.J.) 18 SEA SHORE— PAGE Hall 30 Moore 30 SHIPMASTERS AND SEAMEN- Kay 17 SOCIETIES— See CORPORATIONS. STAGE CARRIAGES— See MAGISTERIAL LAW. STAMP DUTIES— Copinger 40 and 45 STATUTE OF LIMITATIONS— Banning 42 STATUTES— Craies .... .... 9 Hardcastle 9 Marcy 26 Thomas 28 STOPPAGE IN TRANSITU— Campbell 9 Houston 32 Kay 17 STUDENTS' BOOKS . 20— 28, 39, 47 SUCCESSION DUTIES— Hanson 10 SUCCESSION LAWS- Ll-yd 13 SUPREME COURT OF JUDICA- TURE, Practice of— Cunningham and Mattinson . . 7 Indermaur 25 TELEGRAPHS— See MAGISTERIAL LAW. TITLE DEEDS— Copinger 45 TORTS— Ringwood 13 TRADE MARKS— Daniel 42 TREASON— Kelyng 35 TaswellLangmead ..... 21 TRIALS— Bartlett, A. (Murder) . . 32 Queen r'. Gurney 32 ULTRA VIRES— Brice 16 USAGES AND CUSTOMS— Browne 19 Mayne 355 VOLUNTARY CuNVEYANCES— May 29 WATER COURSES— Higgins 30 WILLS, CONSTRUCTION OF— Gibbs, Report of Wallace v. Attorney-General ro WORKING CLASSES, Housing of— Lloyd 13 6 STEVEA'S 57= HAYNES, BELL YARD, TEMPLE PAR. Second Edition, in 8vo. Price 2\s., cloth, THE LAWS OF INSURANCE: ^-fFirr, iiiff, llffit)fnt, anti (fiuarantrr. EMBODYING CASES IN THE ENGLISH, SCOTCH, IRISH, AMERICAN, AND CANADIAN COURTS. By JAMES BIGGS PORTER, OF THE INNER TEMI'LE AND SOITH EASTERN CIRCUIT, BARRISTER-ATLAW. ASSISTEH T?Y W. FEILDEN CRAIES, M.A., OP THE INNER TEMI'LE AND WBSTERN CIRCUIT, BARRISTER-AT-LAW. " In reviewing the first edition of this book we expressed an opinion thnt it wns n painstakinf; and useful work. Its ulilily has been shown by the speedy appearance of the ; ! ri, and the labour of its authors is still apparent to anyone who will glance through its page-; /.'«r»r,j/. " The success of the first edition proves tt« \-ulue. Il is clearly and con' i ^ ■ \ .'• !, and upwards of i.ccx) cases are quoted." — Latu /'iniei. " Mr. Porter's useful book on insurance law hac reached a second edition in less than three years, which is not common in a bk of this clnss. llie fact is, that in taking up insurance law in all its branches, except marine insurance, he hits upon a popular subject Mr. Porter well fills the gap thus made for him, and he has callc*! to his »in •-•( Mr. Craie*."— /Ifiif yourmil. " When wrilitig on ill' ' ■.-'•-- tk a ^leat success, We -.poke in terms cfi:: \ It, the llmrough ncss of his work and hi^ ::ii'j a small space Practical experience of I he . .iiit- ;i(> ',1 li,c v luiiic 'iuiii'i; tlic \^A thicc yc.irs h.i^, we may say, fully con firmed our favourable views." — jHSuritme Rfcord. In Royal l2mo, jiricc 2CXf., cloth, QUARTER SESSIONS PRACTICE, A WADE MECVM 01- GENERAL PRACTICE IN APPELLATE AND CIVIL CASES AT Ql'ARTER SESSIONS. By FREDERICK JAMES SMITH, OP THE MIDL>t.E TEMPLE, BARRISTEK-AT-LA \V, AND RECORIJER OP MARGATE. Second E. a second edition of his ' Principles of the I-att- of Negligence,' in so far as r ; of in both liools arc the same ; and the matcri;il> collected in the one have been u- :i the other. .As to anything beyond this, he continues, the i>ri-.ent is a new work. I .'t -rthcr different from that previously adopted. Nearly a half of the content* r>! -iy new, and of the remainiicr tb«ra is vcr)- little which has not beeo materially i c, )-ct in expression. "Upon ii paired as a wwk uf ihc ear upon his task I;ii.: has been greatly incre.i.tJ o> Uic piu. ucitr\c5 a pl.n.c iii the first rank aoioiif; authoriialtve espa*iliaok of the law. ,..|-, , , , , .. ,. .1 , . .1 1 __ fj,. ;. .. . v.: r ... - i ,.,... ^^jj it i-, , . .! is clear!\ "•< ca-sc-s- l-uk;. *"" •'^'r- licven, the » "». if '!>«>' would (fain 1 t.iken up for .1 ha-iy i '*«• On the othr res research, .iij ^^ or of general stud), it cauii-t fj., tu [ r ■• c Jccj Iy iMeicn-.,. . . . "The ;ib.)ve account is but a sketch of Mr. Beam's crcat work. It is uiipossible within the present limits to give an. -ulci|U.itc uJc.i v>f the \ariely ! ' .- .. i-d^ of the learr ...' ...r ,,„... with wlvich they are dis>-ii-scU. Nei;liK<:iicc n.i'. ^He law ; 1 . .--re accorded to it throws into pr>5mineni;c a ho-i i importain. j .»nd thcorftic;illy Hy his contribution to the dii< unur -u. .i;..; . i moc Mr. IJeven o.i^ cn'.rii i.ic ij.uics- sion under a Ixsting obligation, au obligauun which tio reader of his work will fail to realue."— .>Wi«/orr' Jeurrml. _____^____^__— _ "The book upon which this is founded, and which is in a measure a former edition of the present volumes, h.is made Mr. Beven an authority on the subject ■ f the '.rw of negligence. He has. to writing these Volumes, made full use of h.s lornier lalx>uis ; but • in reality the present work is a new one, and his claim is justified. . . . Just occ.. .i-»rittcn and ably-conceived law book is published, and such a one is this of Mr. Heven's. ' it to compare it with other books on the subject would be impossible ; il stands easily the best U>oK v>a t.'ie subject. I jsition of I law, for good classification of subject-matter, for accuracy of detail, and for ex-cry.' to facili- j tate reference it cannot be be.iten. We may congratulate Mr. Beven upon the .; tit of his [ laborious task ; he hxs given to the profession a valuable work, and one which will eiii.aut.« iiia tcputatioo I as a writer on the Law of Xegligence."— /.aw Journal, .\ugust 3, 1895. | "He has treated the well-known subject of Negligeuce in a scientific way, and has not been content with : merely collecting, in more orjess relevant positions, a number of cases which anyone coald find for himself ; in any Digfst o( Law Reports, but has endeavoured to reduce from the chaosof decided ca-ses a systematic study of the subject, with clear enitncialions of the principles he finds governing the various decisions. In . the arrangement of the book the author has been very happy in his method, a by no means easy Uusk in the treatment oi a subject in which each branch of it in reality overlaps another. . . . \ goo- la«-j-er who wishes rather to get an intelligent understanding of the Law of Negligence, than merely to find correct and reliable legal propositions for practical use, and that whether he be a student or a practitioner. To the student the work is valuable for the searching and well-sustained discussion of the cases ; and to the practitioner there are presented all the cases that b«u- on most points for which he may be iti search of authority. One of the chief merits of the work is, that all the available authority on emca point is collected and so arranged that it can be easily found." — jMridical Rez'iew. " Contains evidence of much serious work, and ought to receive a fair trial at the hands of the pcofeip sion." — Law Quarterly Her-iat: STEJ'EXS &- HAYNES, BELL YARD, TEMPLE BAR. 9 Second Edition, in royal Svo, in the press, THE LAW OF THE DOMESTIC RELATIONS, INCLUDING HUSBAND AND WIFE : PARENT AND CHILD : GUARDIAN AND WARD : INFANTS : AND MASTER AND SERVANT. By WILLIAM FINDER EVERSLEY, B.C.L., M.A., OF THE INNER TEMPLE, BARRISTER- AT-LA\V. " It b essentially readable and interesting, and ought to take a high place among text-books. . . . We say, without hesitation, that this is a learned book, written in a peculiarly fascinating style, having regard to the nature of the subject. ... It can only be said, therefore, that the book is deserving of success upon the merits ; and that the attempt to combine the treatment of three branches of the law which have hithertj been unnaturally divided shows, in itself, a comprehensive grasp of principle." — La7u Times. "The author may be congratulated upon having produced an excellent treatise on this branch of the law, well arranged, cle.-irly written, and complete. A word of praise, too. must be accorded to the laborious care with which he has accumulated references to the various Reports, and constructed his very full index." — Solicitors' Jojintal. Second Edition, in one volume, royal Svo, price ^2^., cloth, THE LAW RELATING TO THE SALE OF GOODS AND COMMERCIAL AGENCY. SECOND EDITION. By ROBERT CAMPBELL, M.A., OF Lincoln's inn, aARKisTER-AT-LAw; advocate of the scotch bar. AUTHOR OF THE "LAW OF NEGLIGENCE," ETC. "An accurate, careful, and exhaustive handbook on the subject with which it deals. The excellent index deserves a special word of commendation." — Law Quarterly Rcine-Zi). _ " We can, therefore, repeat what we said when reviewing the first edition— that the book is a contribu- tion of value to the subject treated of, and that the writer deals with his subject carefully and fully." — Law yourttal. Second Edition, in one volume, Svo, price 22>s., cloth, A TREATISE ON THE CONSTRUCTION AND EFFECT OF STATUTE LAW. WITH APPENDICE.S CONTAINING WORD.S AND EXPRESSIONS USED IN ST.\TU1ES WHICH HAVE BEEN JUDICIALLY OR STATUT.\BLY CONSTRUED, AND THE POPULAR AND SHORT TITLES OF CERTAIN STATUTES. Bv HENRY HARDCASTLE, Barrister-at-law. SECOND EDITION, REVISED AND ENLARGED, \i\ W. F. CRAIES, BARRISTER- AT-LAW. " The result of Mr. Craies' industry is a sound and good piece of work, the new light thrown on the subject since 1879 having been blended wiih the old in a thoroughly workmanlike manner. Though less a student's manual than a practitioner's text book, it is tiie sort of volume an intelligent perusal of which would educate a student better than the reading of much substantial law." — Saturday Review. In one volume, Svo, price 2^s., cloth, THE LAW RELATING TO PUBLIC WORSHIP ; With special reference to Matters of Ritual and Ornamentation, and the Means of Securing the Due Observance thereof, and containing in extenso, with Notes and References, The Public Worship Regulation Act, 1874 ; The Church Discipline Act; the various Acts of Uniformity; the Liturgies of 1549, 1552, and 1559, compared with the Present Rubric ; the Canons ; the Articles ; and the Injunc- tions, Advertisements, and other Original Documents of Legal Authority. By Srward Brice, LL.D., of the Inner Temple, Barrister-at-Law. 10 STEVENS cr' HAYNES, BELL YARD, TEMPLE BAR. In 8%-o, price 30J., cloth, THE PRACTICE ON THE CROWN SIDE Of the Queen's Bench Division of Her Majesty's High Court of Justice (Foumled on Corner's Crown Ori ice Practice;, including Api'Eai.s from Inferior Courts; avith Ai'i-endices of Rl'les and Forms. By FREDERICK HUGH SHORT, Chief Clerk of ihe Crown Office, Author of "Txxation of Costs in the Crown Office," and Editor of " Crown Office Rules and Forms, 1886 ;" and FRANCIS HAMILTON MELLOR, M.A., Trin. Coll. Camb., Northern Circuit, Inner Temple, Barrister-at-Law. THE CROWN office' RULES AND FORMS, 1886. The Supreme Court of Judicature Acts and Rules of the Supreme Court. 1SS3, relating to the I'raciice on the Crown side of the Queen's Bench I>ivision ; including Appeals from Inferior Courts, Tables of Court Fees, Scales of Costs ; together with Notes, Cases, and a Full Index. By F. H. SHORT, Chief Clerk of the Crown Office. In 8vo, price 6j. fid. , cloth, • THE CUSTOMS AND INLAND REVENUE ACTS, ISSO and Ibt-l (43 \'ici. cAf. 14, and 44 \iCT. cat. 12), So far as they Relate to the I'rohale, Legacy, and Succession Duties, and the Duties on Accounts. With an Introduction and Notes. By Alfred Hanson, Esq., Comp- troller of Legacy and Succession Duties. •«• This forms a Supplement to the Third Edition of the Probate, Legacy, and Succession Duty Acts, by the same .Author. Fourth Edition, in Svo, in the press, THE ACTS RELATING TO PROBATE, LEGACY, AND SUCCESSION DUTIES. Comprising the 36 Geo. HI. c. 52 ; 45 Geo. IIL c. 2bi ; 55 (le I. III. c. 1S4 ; and 16 i^: 17 Vict. c. 51 ; the Customs and Inland Revenue Acts, 43 Vict. c. 14; and 44 Vict. c. 12; also the New Estate Duty Finance Act, 57 iS: 5S Vict. c. 30; with an Introduction, Copious Notes, and References to all the Decided Cases in England, Scotland, and Ireland. An Appendix of Statutes, Tallies, and a full Index. By Alfred Hanson, of the Middle Temple, Esq., Barrister-at-Law, Comptroller of Legacy and Succession Duties. Fourth Edition by Lewis T. Dibdin, M.A., D.C.L., and F. H. L. Errington, M.A., Barristers-at-Law. " It is the only complete book upon a subject of 1 " His book is in itself a most useful one ; its great importance. author knows every in and out of the subject, and "Mr. Hanson is peculiarly qualified to be the ] has presented the whole in a form easily and adviser at such a time. Hence a volume without readily handled, and wath good arrangement and ariv.il." — Lau> Times. I clear exposition." — Solicitors J oumai. In royal Svo, 1877, price io.f., cloth, LES HOSPICES DE PARIS ET DE LONDRES. THE CASE OF LORD HENRY SEYMOUR'S WILL (WALLACE V. THE ATTORNEY-GENERAL). Reported by FREDERICK WAYMOUTH GIBBS, C.B., Barrister at-Law, I.ATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE. In Svo, 1S67, price 165., cloth, CHARITABLE TRUSTS ACTS, 1853,1855,1860: THE CHARITY COMMISSIONERS' JURISDICTION ACT, 1862; THE ROMAN CATHOLIC CHARITIES ACTS: Together with a Collection cf Statutes relating to or affecting Charities, including the Mortmain Acts, Notes of Cases from 1S53 to the present time, Forms of Decla- rations of Trust, Conditions of Sale, and Conveyance of Charity Land, and a ver}' copious Index. Second Edition. By HUGH COOKE and R. G. HARWOOD, of the Charity Commission. S7EVE.VS &- HAVXES, BELL YARD, TEMPLE BAR. 11 In one Volume, 8vo, price 205. , cloth, THE PRINCIPLES OF COMMERCIAL LAW; WITH AN APPENDIX OF STATUTES, ANNOTATED BY MEANS OF REFERENCES TO THE TEXT. By JOSEPH HURST and LORD ROBERT CECIL, OF THE INNER TEMPLE, BARRISTERS-AT-LAW. "Their compendium, we believe, will be found a really useful volume, one for the lawj'er and the business man to keep at his elbow, and which, if not giving them all that they require, will place in their hands the key to the richer and more elaborate treasures of the Law which lie in larger and more exhaus- tive works." — Laiu Times. "The object of the authors of this work, they tell us in their preface, is to state, within a moderat compass, the principles of commercial law. Very considerable pains have obviously been expended on th task, and the book is in many respects a very serviceable one." — Laiv yoiimal. Second Edition, in royal 8vo, price 2^s. cloth, THE RELATIONSHIP OF LANDLORD AND TENANT. By EDGAR FOA, OF THE INNER TEMPLE, BARRISTER- AT-LA\V. "Will be found of much value to practitioners, and when a second edition has given the author the opportunity of reconsidering and carefully revising his statements in detail, we think it will take its place as a very good treatise on the modern law of landlord and tena.nl."— Solicitors' Journal. " Mr. Foa is a bold man to undertake the exposition of a branch of law so full of difficulties and encum- bered by so many decisions as the Law of Landlord and Tenant. But his boldness is justified by the excellent arrangement and by the lucid statements which characterise his hook." —La7v Quarterly Revicai. " Mr. Foa's is a compact work, treating (i) of the creation of the relationship ; (2) the incidents of creation (distress) and determination of the .elationship ; (3) modes and incidents of determination. We commend it to the attention of the Profession and predict for Foa on Landlord and Tenant a very useful and very permanent future." — Law Times. " We have nothing but praise for the work, and we shall be astonished if it does not take rank in course of time as one of the best— if not the best — work for every-day practice on the subject of Landlord and Tenant." — Law .Votes. "Without making any invidious comparison with existing works on the subject, we may frankly say that Mr. Foa's work indisputably possesses merit. . . . Our verdict on the book must be a decidedly favourable one." — Law Students' Journal. '.' '.'^'^? Relationship of Landlord and Tenant,' written by Mr. Edgar Foa, Barrister-at-Law, affords a striking instance of accuracy and lucidity of statement. The volume should be found useful not only by lawyers but by landlords and tenants themselves, the law in each particular being stated with a simplicity and clearness which bring it within the grasp of the lay mind."— Law Gazette. Second Edition, in one Volume, medium 8vo, price 35^., cloth, EMDEN'S COMPLETE COLLECTION OF PRA.CTICE STATUTES, ORDERS AND RULES. Being a Selection of such Practical Parts of all Statutes, Orders and Rules, as are now in force, and relate to the Practice and Procedure of the Supreme Court. From 1275 to 1886. With Tabulated Summaries of the Leading Cases and Analytical Cross-references. By ALFRED EMDEN, OF THE INNER TEMPLE, ESQ., BARRISTER-AT-LAW ; AUTHOR OF "THE PRACTICE IN WINDING-UP CO.MPANIES ; " "the law RELATING TO BUILDING, BUILDING LEASES, AND CONTRACTS;" "the shareholder's legal GUIDE," ETC. ASSISTED BY HERBERT THOMPSON, M.A., OF THE INNER TEMPLE, BARKISTER-AT-LAW. 12 S7 EVENS cr- HAYNES, BELL YAUD, TEMPLE BAR. In royal Svo, price 28^., cloth, A TREATISE ON THE LAW AND PRACTICE KLI.ATING TO LETTERS PATENT FOR INVENTIONS. v. ITH AN APPENDIX OF STATUTES, INTERNATIONAL CONVENTION, RULES, FORMS AND PRECEDENTS, ORDERS, &c. By ROBERT FROST, B.Sc. (Lond.), FtLLOW OF THE CHEMICAL SOCIETY; OF LINCOLN'S INN, ESQLIRB, BARRISTER-AT-LAW. " In our view a good piece of work ma \ -.s ithout disparaging existing literature upon the subject of patents, we think the . the voUime liy >\r. Frost has been compiled entitles it to recognition ai tl' . . . Ji;'!^i: ^ Mr. Frost on this ground, we find him completely sati ::ie ••ali-.lies u.s that great care and much l.ibour have 1 • ■ think that patent agents, solicitors, the b.«r .-ind the 1< ^ ..^lion to the pages of Mr. Frost." — Z-rtic J'tmet. " Few practice books cooiain .so much in »o reav>Dahle a space, and we repeat that it will be found gener.illy useful by practitioners in ihU important branch of the law. ... A capital index concludes the boi)k."' — Law Journal. " The l)ook is, .ts it professes to be, a treati.se on patent law and practice, the several topics being con- veniently arranged and discuricd in the thirteen chapters which form the body of the work, to which are appended statute.s, rule-., and forms. The statements of the law, so far as we have been able to test them, appc.tr to be clear and accurate, and ihe .luthor's style is plea.saiit and good. . . . The book is a good one, and will make its way. The index is better than usual. I'oth paper and type are alio excellent." — Solicitors' Journal. Second Etlition. In two volumes, royal S%'o, price 5CW., cloth, A PR.ACTICAL TRE.VnSE ON THE LAW OF BUILDING AND ENGINEERING CONTRACTS, And 01 THE DUTIES anu LIAIULITU:.-. of ENGINEERS, ARCHITECTS, SURVEYORS AND VALUERS, WITH AN APPENDIX OF PRECEDENTS, ANNOTATED BY MEANS OF REFERENCE TO THE TEXT AND TO CONTRACTS IN USE. AND AN APPENDIX OF UNREPORTED CASES ON BUILDING AND ENGINEERING CONTRACTS, By ALFRED A. HUDSON, OF THE INNER TEMPLE, BARRISTER-AT-LAW. " This is a book of ^reat elalwration and completeness. It appears from the preface that the author has the twofold qualification of technical knowledge of building, gained as an architect, and devotion to the legal aspects of building, engineering, and shipbuilding contracts since he became a member of the bar. .... The list ol c.-ises cited covers lifty large p.iges, and they include, not merely English, but American and Colonial decisions The book as a whole represents a large amount of well-directed labour, and it ought to become the standard work on its subject." — ■Solicitors' Jouriiac. " A very full inde.x completes the book. Mr. Hudson has struck out a new line for himself, and pro- duced a work of considerable merit, and one which will probably be found indispensable by practitioners, in.ismuch as it contains a great deal that is not to be found elsewhere. The Table of Cases refers to all the reports." — Law yourtuil. " Mr. Hudson, having aoandoned his profession of an architect to become a barrister, hit upon the idea of writing this work, and he has done it with a thoroughness which ever;- houseowner would like to see bestowed upon modern houses The Index and Table of Cases reveal a vxst amount of industrj- expended upon detail, and we shall be much surprised i< Mr. Hudson does not r»ap the reward of his labours by obt.-tinii;g a large and appreciative public." — Ln-v Times. STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 13 Second Edition. In 8vo, price \os. 6d., cloth, OUTLINES OF THE LAW OF TORTS. By RICHARD RINGWOOD, M.A., OF THE MIDDLE TEMPLE, BARKISTER-AT-LA\V ; AUTHOR OF "PRINCIPLES OF BANKKUPTCV," &C., A>fD LECTURER ON COMMON LAW TO THE INCORPORATED LAW SOCIETY. I "This is a work by the well-known author of a student's book on Bankruptcy. Its groundwork is a series of lectures delivered in 1887 by Mr. Ringwood, as lecturer appointed by the Incorporated Law Society. It is clear, concise, well and intelligently written and one rises from its perusal with feelings of pleasure. . . . After perusing the entire work, we can conscientiously recommend it to students." — Latu SUtdents Joiinial. \ " The work is one we well recommend to law students, and the able way in which it is written reflects much credit upon the author." — La7v Tiiiies. I "Mr. Ringwood's book is a plain and straightforward introduction to this branch of the law." — Law J youmai. ] *^* Prescribed as a text-book by the Incorporated Law Society 0/ Ireland. \ Si.\th Edition, in Svo, price 21s., cloth, 1 THE LAW OF COMPENSATION FOR LANDS, HOUSES, h. I UNDER THE LANDS CLAUSES CONSOLIDATION ACTS, THE RAILWAYS CLAUSES CONSOLID.\TION .VCTS, THE PUBLIC HEALTH ACT, 1S75 ; THE HOUSING OF THE WORKING CLASSES ACT, 1890; THE METROPOLIS LOCAL MANAGEMENT ACT, AND OTHER ACTS, WITH A FULL COLLECTION OF FORMS AND PRECEDENTS. By eyre LLOYD, OF THE INNER TEMPLE, BARRISTER- AT-LAW. SIXTH EDITION. By W. J. BROOKS, OF THE INNER TEMPLE, BARRISTEK-AT-LAW. " In providing the le^al profession luith a book which contains the decisions of t)u Courts of Law and Equity upon the various statutes relating to the Law of Compensation, Mr. Eyre Lloyd has long since left all competitors in the distance, and his book may no7u be considered the standard work upon the sub- ject. The plan of Mr. Lloyds book is generally knozun, and its lucidity is appreciated ; t lie present quite fulfils all tlu promises of the preceding editions, and contains in cuidition to other matter a complete set of forms under the Artizans and Labourers Act, 1875, and specimens of Bills of Costs, which will be found a nai'cl feature, extremely ttseful to Ugal practitioners." — Justice of the Peace. In Svo, price Js., cloth, THE SUCCESSION LAWS OF CHRISTIAN COUNTRIES, WITH SPECIAL REFERENCE TO THE LAW OF PRIMOGENITURE AS IT EXISTS IN ENGLAND. By eyre LLOYD, B.A., Barrister-at-Law. In crown Svo, price 6s. , cloth, ESSAYS IN JURISPRUDENCE AND LEGAL HISTORY. By JOHN W. SALMOND, M.A., LL.B. (Lond.), a barrister of THE SUPREME COURT OF NEW ZEALAND. In crown Svo, price 6j., cloth. THE FIRST PRINCIPLES OF JURISPRUDENCE. By JOHN W. SALMOND, M.A., LL.B., BAKRISTER-AT-LAW ; AUTHOR OF "ESSAYS IN JURISPRUDENCE AND LEGAL HISTORY.' U STEVENS c:' HAYNES, BELL YARD, TEMPLE BAR. In the Press, in Svo, ami nearly ready. THE LAW OF NEGOTIABLE SECURITIES. CONTAINED IN A COURSE OF SIX LECTURES. Delivered by WILLIAM WILLIS, Esq., Q.C, THE COUNCIL OF LEGAL EDUCATION. In one large vol., Svo, price 32/., cloth, INSTITUTES AND HISTORY OF ROMAN PRIVATE LAW, WITH CATENA OF TEXTS. By Dr. CARL SALKOWSKI, Professor of Lnws, Konigsberg. Translated and Edited by E. E. Whitkield, M..\. (Oxen.). In 8vr>, price 4/. A.!". , cloth. Tin: NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. WITH A STATEMENT OF THE LAW uF LliiEL Ab AFFECTING PKOrRIETORS, PUBLISHERS, and EDITORS OF NEWSPAPERS. By G. ELLIOTT, Barrister-at-Law, of the Inner Temple. In one volume, royal Svo, CASES AND OPINIONS ON CONSTITUTIONAL LAW, AND VARIOUS POINTS OF ENGLISH JURISPRUDENCE. COLLECTED AND DIGESTED FROM OFFICIAL DOCUMENTS AND OTHER SOURCES. WITH .VOTES. By WILLIAM FORSYTH, M.A., M.P., Q.C, STANDING COUNSEL TO THE SECRETARY OF STATE IN COUNCIL OF INDIA, Author of " Hortensius," " History of Trial by Jury," "Life of Cicero," etc., late Fellow of Trinity College, Cambridge. STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 15 Sixth Edition, in Svo, price 10^. 6rf., cloth, THE PRINCIPLES OF BAHRRUPTCY. WITH AN APPENDIX, CONTAINING THE CONSOLIDATED RULES OF 1886, 1890 k 1891, SCALE OF COSTS, AND THE BILLS OF SALE ACTS, 1878, 1882, 1890 k 1891, AND THE RULES THEREUNDER; THE DEEDS OF ARRANGEMENT ACT, 1887, AND THE RULES THEREUNDER. By RICHARD RINGWOOD, M.A., OF THE MIDDLE TEMPLE, BARRISTEK-AT-LAW ; LATE SCHOLAR OF TRINITY COLLEGE, DUBLIN. " We welcome a new edition of this excellent student's book. We have written favourably of it in reviewing previous «ditions, and every good word we have written we would now reiterate and perhaps even more so. . . . In conclusion, we congratulate .Mr. Ringwood on this edition, and have no hesitation in saying that it is a capital student's book."— Z.a:y Students' Joiit-nal. "This edition is a considerable improvement on the first, and although chiefly written for the use of Students, the work will be found useful to the practitioner." — Ln-,u Times. Seventh Edition, in Svo, price 2ls., cloth, A TREATISE UPON THE LAW OF BANKRUPTCY AND BILLS OF SALE. WITH AN APPENDIX CONTAINING THE BANKRUPTCY ACTS, 1883—1890; GENERAL RULES, FORMS, SCALE OF COSTS AND FEES ; RULES UNDER S. 122 OF 1888; DEEDS OF ARRANGEMENT ACTS, 1887—1890; RULES AND FORMS; BOARD OF TRADE AND COURT ORDERS ; DEBTORS ACTS, 1869, 1878 ; RULES AND FORMS ; BILLS OF SALE ACTS, 1878—1891, Etc., Etc. By EDWARD T. BALDWIN, M.A., OF THE I.NNER TEMPLE, BARRISTEK-AT-LAW. "The seven editions simply record the constant progress of case growth and statute law. It is a remarkably uieful compendium." — Laiu Times, July 20, 1895. >. r " As a well-arranged and complete collection of case law this book should be found of great use. —Law Journal, July 20, 1895. " Carefully brought down to date." — Sfl/icitors' Journal, tJovemhtr g, zSgs- ... " We have always considered the work an admirable one, and the present edition is quite ujj to the previous high standard of excellence. We know of no better book on bankruptcy for the practitioner s library." — La2v Students' Journal, August, 1805. ... " Practitioners may, we feel sure, safely rely on its accuracy. A distinct acquisition for reference purposes to the shelf of any practitioner." — Law Notes. 16 STEVENS <5- HAYNES, BELL YARD, TEMPLE BAR. Second Etliiion, in one vol., price 20J., cloth, A COMPENDIUM OF THE LAW OF PROPERTY IN LAND. FOR THE USE OF STUDESTS AND THE PROFESSION. SECOND EDITION. By WILLIAM DOUGLAS EDWARDS, LL.B., OF LIKCOLN's IN'N, BAKRISTrS-AT-l.>W. " We consider it one of the best worlc^ published on Rtal Property I jiw."— /.rtn- w ntoL "Another exceHent compendiiitn \rhich has entered n »coond edition i» Mr. tdw Jium of the Law of I'ropcrty in Ijnd.' No work on tngli^h law i". written more p<-: , . . Mr. Edwards has manifestly bestowed the ntmost c*re in puttinj: into^the mo«t inodcm ilie^ a ucaiiic which we think will continue to grow in the estimation of the prolcsMon." — I.a'v Timet. " We formed a very fa \ r . , .■ f thU little book, and our opinion is coil- firmed by the pcru-cil of ti merit of being a sound lawver, a merit pcrh.np«; not alway<; po c ' ^xw^Tit'.."— //f;<- Quarterly Rri'irtv. "Ihe l>ook is en' ; l.i e ..-, a -: — I-aw of Property in Land. The style i- . accurate, ar r well >electcd The amount of del.ni - i- !.;■..«' r.in *ith great confidence rciuiiiinciiii u i -• • ''"J it a ■• ol the modem law. AltoRclher it . 'the author ^e improved notions of Ltw wKith t:,'- .. , , . . ' ■ the front. . •:■«/. "This book shows signs of thorough work throughout Ihe book is a btisincu-likc and useful performance."— /.««• Joutnat. Third Edition, royal 8vo, price 38/., clolh. Tin: LAW OF CORPORATIONS AND COMPANIES. .\ TKL.\TI.sE ON THE DOCTRINE OF ULTRA VIRES: BEING An Investigation of the Principles which Limit the Capacities, Powers, and Liabilities of CORPORATIONS, ASn MORR ESPECIALLY OF JOINT STOCK COMPANIES. Bv SEWARD BRICE, M.A., LL.D., London, OF THE INNER TEMPLE, CNE OF HEK MAJESTY'S COU.NSEL. THIRD EDITION. REVISED THROUGHOUT AND ENL.\RGED, AND CONTAINING THE UNITED STATES AND COLONIAL DECISIONS. R£VI£WS. ", . . . C'rt the rvhoU, ««• coiisider Mr. Brice'i exkaiutirt ivork a valuable addition to tke litertffurt^ the /ye>fessicn."—S.KTVRV\y Review. •' It is the Law of Corporations that Mr. Brice treats of (and treats of more fully, and at the same' time more scientifically, than any work with which we are acquainted), not the law of principal and agent ; and Mr. Brice does not do his book justice by giN-ing it so vague a title." — La-w JoumaL "On this doctrine, first introduced in the Common Law Courts in Eiut Anglian Rail^atay Co. ▼. Eastrm Cciinties Raitioay Co., Brice on Ultra \ires may be read with advantage."— yu^r*"*"* cf Lord Justice Bramwki.u, in the Case 0/ Everthed v. L. <5r» .V. W. Ry. Co. (L. R., 3 Q. B. Diw. 141.). STEVENS ^^ HAYNES, BELL YARD, TEMPLE BAR. 17 Sixth Edition, in royal 8vo, price 34-f., cloth, BUCKLEY ON THE COMPANIES ACTS. SIXTH EDITION BY THE AUTHOR. THE LAW AND PRACTICE UXDER THE COMPANIES ACTS, 1862 to 1890; and THE LIFE ASSURANCE COMPANIES ACTS, 1870T01S72; inxluding THE COMPANIES (MEMORANDUM OF ASSOCIATION) ACT; THE COMPANIES (WINDING-UP) ACT, and the DIRECTORS' LIABILITY ACT. ^ %xtA\.\st Oil tlxc g.itu of Jlotitt j^todi (Companies. CONTAINING THE STATUTES, WITH THE RULES, ORDERS. AND FORMS, TO REGULATE PROCEEDINGS. By H. burton BUCKLEY, M.A., OP LINCOLN'S INN, ESQ., ONE OF HER MAJESTv's COUNSEL. Second Edition, with Supplement, in royal 8vo, price 46^., cloth. THE LAW RELATING TO SHIPMASTERS AND SEAMEN. THEIR APPOINTMENT, DUTIES, POWERS, RIGHTS, LIABILITIES, AND REMEDIES, By the late JOSEPH KAV, Esq., M.A., Q.C. Second Edition. WITH A SUPPLEMENT Comprising THE MERCHANT SHIPPING ACT, 1894, The Rules of Court made thereunder, and the {proposed) Regulations for Pre7>enting Collisions at Sea. By the Hon. J. W. MANSFIELD, M.A., and G. W. DUNCAN, Esq., B.A., OK THE INNER TEMPLE, BARRISTBRS-AT-LAW. REVIEWS OF THE SECOND EDITION : " It will, however, be a valuable book of refer- ' Editors have c.irried out an arduous t.isk carefully ence for any lawyer desiring to look up a point i and well." — Law Journa'., .April, 1894. connected with the rights and duties of a shii>- | master or a seaman— the list of cases cited covers "It has had practical and expert knowledge ne.irly seventy pages— while any shipmaster, ship | brought to bear upon it, while the case law is agent or consul who masters this edition will be 1 brought down to a very late date. Considerable well posted up We hope this new improvement has been made in the index." — Lain Edition will be quickly appreciated, for the ' 7V>«^.t, April, 1894. In royal Svo, pri:c lo.f. 61/., cloth, THE MERCHANT SHIPPING ACT, 1894: With the Rules of Court made thereunder. Being a Supplement to KAY'S LAW RELATING TO SHIPiMASTERS AND SEAMEN. To which are added the (proposed) Regulations for Preventing Collisions at Sea. With Notes. By Hon. J. W. Mansfield, M.A., and G. W. Duncan, B.A., of the Inner Temple, Barristers- at-Law. 18 STEVENS &' I/AYNES, BELL YARD, TEAfPLE BAR. Fourth Edition, in roypJ Svo, price 40/., cloth, THE JUDGMENTS, ORDERS, AND PRACTICE OF THE SUPREME COURT, CIIIKKLV in KESl'ECT to ACTIONS ASSIGNED lo theCHANCEKY DIVISION. I5y LOFTUS LEIGH rEMHERTOX, One of the registrars of the Supreme Court of Judicnture ; and Author of " The Practice in Equity by way of Revivor and Supjilement." "The work under notice ought to l>e of cunsuicrable service to fhe profession The fomis throughout the work — and ihey r.rc thi- mo«t important element in it — appear to us to be accurate, and of the most approved type. 1 •• will commend the new edition to practitioner* in the Chancery Division, '1 here is a uscft: l/^rd Chancellors and Judgo at the beginning of the book, and a very full inde x ( ..iK.Iiulfs it -vx. In dcmv I2nu», jiricc >•• THE STATUTORY LAW RELATING TO TRUSTEE SAVIisGS BANKS '1863-1891), together with the Trea.sury Kegu- lalioiis (iSSS- iSSc,), and the Si heme for the ApiHuntmcnl of the Inspection Coniniittce of Trustee Savii>j;s I5.niiks. By Uk<,>ihaki A. KOKBF.s, of Lincoln's Inn, Es*]., Harristerat-Law, Author of " The I^w Relating to Savings Hanks ;" the "Law of Savings Itanks since 1878;" and joint Author of "The Law Relating to Water. " In demy l2ino, price 61., cloth, THE LAW OF SAVINGS BANKS SINCE 1878; With a DipcM of I>rcisi€»ns mad* l»y the Cliief Ke^i^-lrar anJ Ai.sutant Kc^L<:rar4 of l''rien.s of the Chancery liix-i- | claims in Chr.m'Ter'.' .-nii 'The cv^t of nrimtnis- sioii is ire.itcd with concisciic-v. ;uid care. _ Judcini; trat ■ »e from the admirable clearness 01' expression which gl.T >-t chnr.icteriscs the entire work, and the labour which suii>: '^e has evidently licen bestowed on every detail, we do tested u, 11 j '^■•. - , • cii not think that a lilerar\' executorship could have omitted .... le devolved upon a more able and conscientious repre- of cases, with re' -ill scntalive .... Useful chapters are introduced the report-s, and a :'.i;r^>_ g.^.--! i:i'.;c.\,nij'.h increase in their appropriate places, dealing with the the utility of the work." — Solicitors' JeHniai. In Foolscap Svo, superfine paper, bound in Vellum, price y. dd. tut. •^* A liinitea nttmher of ii.'tt<:n prittted urcti Ijr^-^ /ii/' memlwr of these bodies should have a copy by him for constant reference. Probably at no very distant date the property of all the existing gas and water companies will pass under municipal both by the promoters and opponents, and as this was the first time in which the principle of com- pulsory purchase was definitely recognised, there can be no doubt that it will long be regarded as a leading case. As a matter of course, many inci- dental points of interest arose during the progress control, and therefore it is exceedingly desirable I of the case. Thus, besides the mam question of that the principles and conditions under which such transfers ought to be made should be clearly under- stood. This task is made easj by the pre^ient volume. The stimulus for the publication of such a work was gpven by the action of the Parliamentary Committee which la^it session passed the preamble of the 'Stockton and Middlesborough Corporations Water Bill, 1876.' The volume accordingly con- tains a full report of the case as it was presented compulsorj' purchase, and the question as to whether there was or was not any precedent for the Kill, the questions of water compensations, of appeals fiom one Committee to another, and other kindred sub- jects were discussed. These are all treated at length by the Author in the body of the work, which is thus a complete legal compendium or. the large subject with which it so ably deals." 20 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. In crown 8vo, price xos. 6r/., cloth, THE LAW OF EVIDENCE. By S. L. I'HIPSON, M.A., of the Inner Temple, Barrister-al-Law. " This book condenses a head of law inio a " We are of opinion that Mr. Phipson has pro- uced a book which will be found very serviceable. comparatively small compass — a class of literarj' undertaking to which ever>- encouragement should be given. . . . 'l"he volume is most portable, most compendious, and as far as we have l>een able to examine it, as accurate as any law book can be expected to be." — Law Times. dt not ooly for practitioners, but also for students. We have tried it in a good many places, and we find that it is well brought down to date." — Latt^ "Journal-. In 8vo, 1878, price 6x., clolh, LAW RELATINg"''T0 CHARITIES, KhlKCIAl l.Y Willi KKKF.kKNCK TO 1 H K VAl.II'HY AM) CO.Ns 1 KL CTION OF CHARITABLE BEQUESTS AND CONVEYANCES. Bv IKRDIN.XNI) M. wmiKKORD. of Lincoln's Inn. Rarrister -at-Law. In 8vo, 1872, price Ti. (ai., cloth, SAVIGNY'S TREATISE ON OBLIGATIONS IN ROMAN LAW. lU ARCIIlliALI) BROWN, M.A. KDIN. AND OXOK., AND B.C.L. OXOK., Ot TM« MinOLB TVMrLK, »A«l«lvnt«-AT-I^W. "Mr. Archibald Hrown de»er\e« the thanks ihe French trantlatln . r^i^i:..: "f t«'' volume*. ol all interested in the science of Law, whether with v.nic fne i '•d as a study or a pracliue, for his edition of with Mr. Hrow i 'd Herr von bavigny's great work "'ii ' l>':.lii;.iiion*.' fifty \:>.^r- A: ' ■" ^n Mr. Hrown h.-ui undertaken .i the Sa^ Uly pre- Iransl.-xiion of his nuihor, arnl i • f his •cr\ to '»« author's matter, 'lliat lie has Mit-t> ...jun? Kn^ - „ ., . ■■:."— Lam the bulk of the original will 1-c •cen at a glance ; yt'tti-nai. THE ELEMENTS OP ROMAN LAW. Second Edition, in crown Svo, price 6s., cloth, A CONCISE DIGEST OK TIIK INSTITUTES OF GAIUS AND JUSTINIAN. i/V//; lO/icuj Kefcti':,:' ijfiati^c.i in laralul Cclutnm, also Ckionclogii-al and Atialytiiol Talks, Lists of Laws, vSr-f. «S^i-. Primarily desig:ned for the Use of Students preparing for Examination at Oxford. Cambridge, and the Inns of Court. By SEYMOUR F. HARRIS, B.C.L., ^LA., WORCESTER COLLEGE, OXFUKP. ANU THE ISNEK TE.MILE, BAKKISTER-AT-LAW ; AfTHOR OK " I'MVKKSITIKS AM) LEOAL El>lCATlOK." * ' Mr. Harris's digest ought to haiv very great success among law stu^ients both in the /tins of Court and the Universities. His book gives evidence of paisrworthy accuracy and lal'onons condcnsattcn." — Law Jolrnai.. " 77iis hook contains a summaty in English of the elemetits of Roman Laxv as contained in the -voiks of Gains and ftestinian, ami is so arranged that the reader can at once su ■what are the ofinicns of either of these t-u-o -enters on each point. From the very exact and accurate references to title: and sections f^iven he can at once refer to the otiginal writers. The concise manner in which Air. Harris has arranged his digest will render it most useful, not only to the students for whom it was ori^nally written, but also to those persons who, though they have not the time to wade throu:;h the larger treatises of Postt, Sanders, Ortolan, and others, yet desire to obtain some knowledge of Roman Law. ' — Oxford and CAMBRinc.F UNnF.RGRADrAiKs' Joi-rnai.. " -Vr. Hatris dcserfes the credit of having produced an epitome which will be of srrvict \ to those numerous students who haze no time or sufficient ability to analyse the Institutes ■ ; for themselves.'" — Law Ti.mk.s. WORKS FOR LAW STUDENTS. 21 Fourth Edition, in 8vo, price lis., cloth, ENGLISH CONSTITUTIONAL HISTORY: FROM THE TEUTONIC INVASION TO THE PRESENT TIME. ^csigueb as a '^Text-book for .Stubcnts aab ffthcrs, By T. p. TASWELL-LANGMEAD, B.C.L., OP Lincoln's ink, barrister-at-la\v, formerly vinerian scholar in the university AND LATE PROFESSOR OF CONSTITUTIONAL LAW AND HISTORY, UNIVERSITY COLLEGE, LONDON. Fourth Edition, Revised throughout, with Notes and Appendices. By C. H. E. Carmichael, M.A. Oxon. "Mr. Carmichael has performed his allotted task with credit to himself, and the high standard ol excellence attained by Taswell-Langmead's treatise is worthily maintained. This, the third edition, will b« found as useful as its predecessors to the large class of readers and students who seek in its pages accurate knowledge of the history of the constitution." — Lazv Times. "To the student of constitutional law this work will be invaluable The book is remarkable for the raciness and vigour of its style. The editorial contributions of Mr. Carmichael are judicious, and add much to the value of the work." — Scottish Law Kt-'it:i: " The work will continue to hold the field as the best class-book on the subject." — Contemporary Revit-M. "The book is well known as an admirable introduction to the study of constitutional law for students at law Mr. Carmichael appears to have done the work of editing, made necessary by the death of Mr. Taswell-Langmead, with care and judgment." — Latu Journal. " The work before us it would be h.ardly possible to praise too highly. In style, arrangement, clearness, and sue, it would be difficult to find anything better on the real history of England, the history of its constitutional growth as a complete story, than this volume." — Boston (U.S.) Literary lyorld. "As it now stands, we should find it hard to name a better te.\t-book on English Constitutional History." — Solicitors' Jourtial. " Mr. Taswell-Langmead's compendium of the rise and development of the English Constitution has evidently supplied a want The present Edition is greatly improved. . . . We have no hesitation in saying that it is a thoroughly good and useful work." — Spectator. " It is a safe, careful, praiseworthy digest and manual of all constitutional history and law." — GMe. "The volume on English Constitutional Historj', by Mr. Taswell-Langmead, is exactly what such a history should be." — Stamiard. _ . ■ .■ " Mr. Taswell-Langmead has thoroughly grasped the bearings of his subject. It is, however, in dealing with that chief subject of constitutional history — parliamentary government — that the work exhibits its great superiority over its rivals." — Academy. Second Edition, in 8vo, price 6.f. , cloth, HANDBOOK TO THE INTERMEDIATE AND FINAL LL.B. OF LONDON UNIVERSITY ; (PASS AND HONOURS), Including A COMPLETE .SUMMARY OF "AUSTIN'S JURISPRUDENCK,' AND THE EXAMINATION PAPERS ok LATE YEARS in ALL IJRANCHES. By a B.A., LL.B. (Lond.). " Increased in size and usefulness. . . . The book will undoubtedly be of help to those students who prepare themselves for examination. . . . The .A.ppendix contains a good selection of papers set at the different examinations." — Law Times. " \ very good handbook to the Intermediate and Final LL.B. by a B.A., LL.B." — Law Notes. In crown 8vo, price 3^. ; or Interleaved for Notes, price 4J., CONTRACT LAW. QUESTIONS ON THE LAW OF CONTRACTS. With Notes to the Answers. Founded oh " A/ison," " Chitty" and ^'^ Pollock.''' By Philip Foster Aldred, D.C.L., Hertford College and Gray's Inn ; late Examiner for the University of Oxford. "This appears to us a very admirable selection of questions, comparing favoura'oly with the average run of those set in examinations, and useful for the purpose of testing progress." — Law Journal. 22 WORKS FOR LAW STUDENTS. Eleventh Edition, in 8vo, price 2li-., cloth, THE PRINCIPLES OF EQUITY. INTENDED FOR THE USE OF STUDENTS AND THE PROFESSION, By EDMUND H. T. S N E L L, OF THH MIDDLE TEMI'LB, B ARRISTER-AT-LAW. ELEVENTH EDITION. By ARCHIBALD BROWN, M.A. Edin. & Oxon., & B.C.L. Oxon., OK THE MIDDLE TEMPLE, BARRISTER-AT-LAW ; AfTHOR OF "a NEW LAW DICTIONARY," "an ANALYSIS OK SAVIGNY ON OBLIGATIONS," AND THE "LAW OF FIXTURES." REVIEWS. " The Eleventh Kdition of ' Snell's Equity ' U remark.-iblc in one respect, viz., the learned editor has, as he tells us in his prcfarc. nctu.'illy :ic. eer!riuUe)ii - tcxi-lK^k winch (iic i>r<..«ciil editor tiaj. l.rl uul. . . . the hook is a good introduction to Equity, and is additionally useful by having a full index. ' — Sclicitor^ youmal. " The l>ook rein.iins wh.it it nlwa>-s has httn, the indispensable guide to the berinner of the study of Equity, without ccisiiig to be above the notice ol the more experienced stMAcn%.."—Ox/n^ Atagaxint. " Whether to the l>cgiicM elemcntarj- treatise on the subject, and it would not be nc' ■ more of this Edition, than to iiu-T,i,,,n thr 1 ,.! .,1 ,1 . u;!, ,•! n vv,i, it ,,..i i.r il r fa, t that i Jili.Snell, is dead, .it.d the l.-tlr > i>uwii. It xlduiii happens that a new editor is . ur iLs dctaiU. Hut in the case of the present w ..> .. ». .....; i ^...,. .- .. .........v .. ....,-..^.v .....;.. ....i the former ones, and well as Mr. Sncll did his work we discover thai .Mr. Kruun has liooc il t>cllcr.' — inih I^atv Timts, " This is now unquestionably the standard book on Equity for students." — Saturday Review. " U'f knom of no better vitr<^n to the Pri triples of Equity.'" — Canad.v Law Journal. Fifth Edition, in Svo, price 6.f., cloth, AN ANALYSIS OF SNELL'S PRINCIPLES OF EQUITY. Founded ON THE Eleventh Edition. With Notes thereon. By E. E. Blvth, LL. D., Solicitor. " Mr. Blyth"s txiok will undoubtedly be ver>- useful to readers of Snell." — Law Times. " This is an .-idmirable anal)-sis of a good treatise ; read with Snell, this little book will be fouiui very profitable to the student." — Law Jourtuti. In Svo, price 2s., sewed, QUESTIONS ON EQUITY. FOR STUDENTS FREPARIXG FOR EXAMINATION. FOUNDED ON THE NINTH EDITION OF SNELL'S "PRINCIPLES OF EQUITY." Bv W. T. AVAITE, BARRISTEK-.\T-LA\V, HOLT SCHOLAR OF THE HONOLKABLE SOCIETY OF CRAY'S INN. JVORKS FOR LA IV STUDENTS, 23 | Second Edition, in one volume, Svo, price i8j., clolh, PRINCIPLES OF CONVEYANCING. A^f ELEMENTARY WORK FOR THE USE OF STUDENTS. By henry C. DEANE, OF Lincoln's inn, barrister-at-la\v, sometime lecturer to the incorporated law society OF THE UNITED KINGDOM. "^F^ hofe to see this book, like Snell's Equity, a standard class-book in all Laiv Schools where EtigHsh la-c is taught."— Canada Law Journal. " We like the work, it is well wxitten and is an " In the parts which have been rewritten, Mr. excellent student's book, and being only just pub- Deanehas preserved the same pleasant style marked lished, it has the great advantage of having in it all by simplicity and lucidity which distinguished his the recent important enactments relating to convey- first edition. After ' Williams on Real Property,' ancing. It possesses also an excellent index." — ; there is no book which we should so strongly La'w Students' Jourjial. I recommend to the student entering upon Real Pro- " Will be found of great use to students entering ; perry Law as Mr. Deane's ' Principles of Convey, upon the difficulties of Real Property Law. It has i ancing," and the high character which the first an unusually exhaustive index covering some fifty I edition attained has been fully kept up in this pages."— Z-rtti/ Times. I second."— Z,rt7«/ Journal. Fourth Edition, in Svo, price los., cloth, A SUMMARY OF THE LAW & PRACTICE IN ADMIRALTY. FOR THE USE OF STUDENTS. By EUSTACE SMITH, OK THE INNER TE.MFLE; AUTHOR OF "a SUMMARY OF COMPANY LAW." "The book is well arranged, and forms a good introduction to the subject." — Solicitors' Jaurnai '■ It is, however, in our opinion, a well and carefully written little work, and should be in the hands of every- student who is taking up Admiralty Law at the Final."— Zrtic Students' Joumal. '■' Mr. Smith has a happy knack of compressing a large amount of useful matter in a small compass. The present work will doubtless be received with satisfaction equal to that with which his previous • Summary' has been met." — Oxford and Cambridge Undergraduates' "Journal. Fourth Edition, in Svo., price %s., cluth, A SUMMARY OF THE LAW AND PRACTICE IN THE ECCLESIASTICAL COURTS. FOR THE USE OF STUDENTS. By EUSTACE SMITH, OF THE INNER TEMPLE) AUTHOR OF "a SUMM.\RY OF COMPANY LAW " AND "a SUMMARY OF THE LAW AND PRACTICE IN ADMIRALTY." " His object has been, as he tells us in his preface, to give the student and general reader a fair outline of the scope and extent of ecclesiastical law, of the principles on which it is founded, of the Courts by which it is enforced, and the procedure by which these Courts are regulated. We think the book well fulfils its object. Its value is much enhanced by a profuse citation of authorities for the propositions contained in it." — Bar Examination Journal. Fourth Edition, in Svo, price 7^. 6t/., cloth, AN EPITOME OF THE LAWS OF PROBATE AND DIVORCE, FOR THE USE OF STUDENTS FOR HONOURS EXAMINATION, By J. CARTER HARRISON, Solicitor. " The work is considerably enlarged, and we think improved, and will be found cf great assistance to students." — Law Students' Journal. 24 MOA'A'S FOR LA IV STUDENTS. Seventh Edition. In one volume, 8vo, price 20s., cloth, PRINCIPLES OF THE COMMON LAW. INTENDED FOR THE USE OF STUDENTS AND THE PROFESSION. SEVENTH EDITIOS. J5Y JOHN INDERMAUR, Solicitor, AUTHOR OF "A MANUAL OF THE PRACTICE OF THE SUPREME COURT," •' EPITOMES OF LEADING CASES," AND OTHER WORKS. } " The Student will find in Mr. Indermaur's liook a safe .ind clear guide to the Prin- I ciples of Common Law." — Laiw Journal, 1892. "The present edition of this elementary treatise has been in general edited with praise- worthy care. The provisions of the statutes affecting the suhjects discussed, which have been passed since the publication of the last etlition, are clearly summarised, and the effect of the leading cases is generally verj* well given. In the difficult task of selecting and distinguishing principle from detail, Mr. Indcrmaur has been very successful ; the leading principles are clearly brought out, and very judiciously illustrated."— io/zVi/^rj' Jourtiai. "The work is acknowledged to be one of the best written and most useful elementary works fur Law Students that has been published." — Law Limes. " The praise which we were enabled to bestow upon Mr. Indermaur's very useful com- jiilation on its first appearance has been justified l>y a demand for a second edition." — La-v Mai;azitu. " We were able, four years ago, to praise the first edition of Mr. Indermaur's book as likely to be of use to students in acquiring the elements of the law of torts and contracts. The second edition maint-oins the character of the book." — La-v Journal. "Mr. Indermaur renders even law light reading. He not only possesses the faculty j of judicious selection, but of lucid exposition and felicitous illustration. And while his works are all thus characterised, his ' Principles of the Common Law ' especially displays those features. That it h.is already reached a second edition, testifies that our estimate of the work on its first appearance was not unduly favourable, highly as we then signified approval ; nor needs it that we should add anything to that estimate in reference to the general scope and execution of the work. It only remains to say, that the present edition evinces that every c.ire has been taken to insure thorough accuracy, while including all the modifications in the law that have taken place since the original publication ; and that the references to the Irish decisions which have been now introduced are calculated to render the work of greater utility to practitioners and students, both English and Irish." — Jrish Law Times. " This work, the author tells us in his Preface, is -vritten mainly with a view to the examinations of the Lncorforated Law Society ; but we think it is likely to attain a wider iLsefulness. Li seems, so far as we can judge from the farts we have examined, to be a careful and clear outline of the principles of the common law. Lt is very readable ; and not only students, but many practitioners atul the public might benefit by a perusal of its pages." — Solicitors' Journal. WORKS FOR LAW STUDENTS. 25 Sixth Edition, in 8vo, price 14J., cloth, A MANUAL OF THE PRACTICE OF THE SUPREME COURT OF JUDICATURE, IN THE QUEEN'S BENCH AND CHANCERY DIVISIONS. Sixth Edition, adapted to the new Rules of Court of November, 1893. Intended for the use of Sttidents and the Profession. By John Indermaur, Solicitor. "Mr. Indermaur has brought out a sixth edition of his excellent ' Manual of Practice' at a very opportune time, for he has been able to incorporate the effect of the new Rules of Court which came into force last November, the Trustee Act, 1S93, and Rules, and the .Supreme Court Fund Rules, 1893, as well as that of other Acts of earlier date. A very complete revision of the work has, of course, been necessary, and Mr. Indermaur, assisted by Mr. Thwaites, h.is effected this with his usual thoroughness and careful attention to details. Ihe book is well known and valued by students, but practitionei^ also find it handy in many cases where reference to the bulkier ' While Book ' is unnecessary. —Lazv rimes, February, 1894. . . . . • j ui " This well-known students' book may verj' well be consulted by practitioners, as it contains a considerable amount of reliable information on the practice of the Court. It is written so as to include the new Rules, and a supplemental note deals with the alterations made in Rule XI. by the Judges in Janu.-vry last. Ihe praise which we gave to previous editions is quite due to the present issue." — Law Join-nal, hcbruary, 1894. Seventh Edition, in 8vo, price 6j-., cloth, AN EPITOME OF LEADING COMMON LAW CASES; WITH SOME SHORT NOTES THEREON. Chiefly intended as a Guide to " S.mith's Leading Cases." By John Indermaur, Solicitor (Clifford's Inn Prizeman, Michaelmas Term, 1872). " We have received the third edition of the ' Epitome of Leading Common Law Cases,' by Mr. Inder- maur, Solicitor. The first edition of this work was published in February, 1873, the second in .\pril, 1874; and now we have a third edition dated September, 1875. No better proof of the value of this book can be furnished than the fact that in less than three years it has reached a third edition ."— Z-aw Journat. Seventh Edition, in 8vo, price 6j., cloth, AN EPITOME OF LEADING CONVEYANCING AND EQUITY CASES; WITH SOME SHORT NOTES THEREON, FOR THE USE OF STUDENTS. By John Indermaur, Solicitor, Author of "An Epitome of Lcadmg Common Law Cases." "We have received the second edition of Mr. Indermaur's very useful Epitome of Leading Convey- ancing and Equity Cases. The work is very well done." — Laru Times. , u • ■ • 11 "The Epitome well deserves the continued patron.-ige of the class— Students— for whom it is especially i ntended. Mr. Indermaur will soon be known as the ' Students' Friend.' "—Canada Law 'Journal. Sixth Edition, 8vo, price 6j., cloth, THE ARTICLED CLEKK'S GUIDE TO AND SELF-PREPARATION FOR THE FINAL EXAMINATION. Containing a Complete Course of Study, with Books to Read, List of Statutes, Cases, Test Questions, <.\:c., and intended for the use of those Articled Clerks who read by themselves. By John Indermaur, Solicitor. "In this edition Mr. Indermaur extends his counsels to the whole period from the Intermediate examination to the Final. His advice is practical and sensible : and if the course of study he recommends is intelligently followed, the articled clerk will have laid in a store of legal knowledge more than suthcient to carry him throuijh the Final Examination." — Solicitors' Journal. ^^ Now ready. Fifth Edition, in 8vo, price \os., cloth, THE ARTICLED CLERK'S GUIDE TO AND SELF- PREPARATION FOR THE INTERMEDIATE EXAMINATION, As it now exists on Stephen's Commentaries. Containing a complete course of Study, with Statutes, Questions, and Advice. Also a complete Selected Digest of the whole of the Questions and Answers set at the Examinations on those parts of "Stephen" now examined on, embracing a period of foiirteen and a h.alf years (58 Examinations), inclusive of the Examination in April, 1894, &c. cS;c., and intended for the use of all Articled Clerks who have not yet passed the Inter- mediate Examination. By John Inder.maur, Author of " Principles of Com- mon Law," and other works. In 8vo, 1S75, price 6j-., cloth, THE STUDENTS' GUIDE TO THE JUDICATURE ACTS, AND THE RULES THEREUNDER: Being a book of Questions and Answers intended for the use of Law Students. By John Indermaur, Solicitor. 26 WORKS FOR LAW STUDENTS. Y\i\\\ Edition, in crown Svo, price \2i. GJ., cloth, AN EPITOME OF CONVEYANCING STATUTES, Extending from 13 Edw. I. to the End of 55 & 56 Victori.e. Fifth Edition, with Short Notes, liy George Nichols Marcy, of Lincoln's Inn, Barristerat-Law. Second Edition. In Svo, price 26s., cloth, A NEW LAW DICTIONARY, AND INSTITUTE OF THE WHOLE LAW ; liMBRACI.NG FRKNLH A.\D LATIN TERMS AND REFERENCES TO THE AUTllORinES, CASES, AND STATUTES. SECOND EDITION, revised throughottt, and considerably enlarged. By ARCHIBALD BROWN, M.A. KUI.N. ANU UXOK., AND I1.C.L. OXO.N., OK THK NM : : i K IKMI'LK, BAKKISTKR-AT-L^W ; AUTHOR Of THE "law of riXTURES," "AKALVSI- i. (CATIONS IN KOMAN L^*," ETC Reviews of the Second Edition. "6(7 Jar ■;.. .> c .,,,, ,■ l>itfi al'U to exaiintu the -iCil:, it seems to have htcn most lare/ully and accurately executed, the /"resent Edition, besides ccnlatninj^ niuch new matter, having been thoroughly m-iad in lOttsc/ucn^e of the riiCnt ihanges in the laic ; and we have no doubt whatever that it will U found extremely useful, not only to students aftd practitioners, but to puldic men, and men of letters." — Irish Law Tl.MF.i. ^^ Mr. Bror.im has revised his Dictionary, aiui cuiapted it to the chatij^es effected by the Judicature Acts, and it noio constitutes a very usejul work to fut into the hands of any student or articled clerk, and a work which the prcutitioner will find of value for reference. " — Soi.iciiDRs' Journal. " // 7uill proz'c a reliable guide to law students, and a handy book of reference for f.uu :itioit.ii." — I,AU Tim Ks. In royal Svo, price 5/., cloth, ANALYTICAL TABLES OF THE LAW OF REAL PROPERTY; Drawn up chiefly from STEPHEN'S BLACKSTONE, with Notes. L5y (.\ J. TARRING, of the Inner Temple. Barrisier-at-Law. CONTENTS. Taulk I. Tenures. | Table V. Uses. ,, 11. Estates, according to quantity of _^ VT. Acquisition of Estates in land of lcn.-uits Interest. freehold tenure. ,, 111. tst.ites, according to the time at ,.,, , , t, ,■ which the Interest is to be enjoyed. " ^ "• l"'--^T«'-eal Hereditaments. ,, IV. Estates, according to the number and ,, Vlll. Incorporeal Hereditaments. connection of the Tenants. i "Great care and considerable skill have been shown in the compilation of these tables, which will be foui.d of much service to students of the Law of Real Property." — La'oi Times. WORKS FOR LAW STUDENTS. 27 Sixth Edition, in 8vo, price 20s., cloth, PRINCIPLES OF THE CRIMINAL LAI. INTENDED AS A LUCID EXPOSITION OF THE SUBJECT FOR THE USE OF STUDENTS AND THE PROFESSION. By SEYMOUR F. HARRIS, B.C.L., M.A. (Oxon.), AUTHOR OF "a CON'CISE DIGEST OF THE INSTITUTES OF GAILS AND JLSTINIAN." SIXTH EDITION. By C. L. ATTENBOROUGII, of the Inner Temple, Banister-at-Law. REVIEWS. I "The characteristic of the present Edition is the restoration to the book of the character of ' a concise exposition ■ proclaimed by the title-page. Mr. Attenborough has carefully pruned away the excrescences j which had arisen in successive editions, and has improved the work both as reeiards terseness and clearness , of exposition. In both respects it is now an excellent student's book. The text is very well broken up into headings and paragraphs, with short marginal notes— the importance of which, for the convenience of the student, is too often overlooked." — Solicitors Jounial. " We think the book— always a favourite with students— has got a new lease of life, and will now prove the only text-book which most men will care to study until they get beyond the examination stage of their existence. ... On the whole our verdict is that the new Edition is distinctly a success, and we have no hesitation in commending it to the student as the best text-book that exists for his purposes. '—Law Students' yoitr;uti. " The favourable opinion 7ve expressed of the first edition of this work appears to have been justified by the reception it has met with. Looking through this new Edition, we see no reason to modify the praise we bcsto^ved on the former Edition. The recent cases have been added and the provisions of the Summary furisdiction Act are noticed in the chapter relating to Summary Convictions. The book is one of the best manuals of Criminal Law for the student.'' — Solicitors' Journal. " There is no lack of Works on Criminal Law, but there was room for such a useftti handbook of Principles as Mr. Seymour Harris has supplied. Accustomed, by his previous labours, to the task of analysing the law, Mr. Harris has brought to bear upon his present 1 work qualifications well ailapted to scctire the successful accomplishment of the object which ; he had set before him. That object is not an ambitious one, Jor it does not pretend to soar \ above utility to the young practitioner and the student. For both these classes, and for the ^ yet wider class who may require a book ofrefeience on the subject, Mr. Harris has produced \ a clear and convenient Epitome of the Law. A noticeable feature of Mr. Harris's work, \ which is likely to prove of assistance both to the practitioner and the student, consists of a \ Table of Offences, with their legal character, their punishment, and the statute under which [ it is indicted, together with a reference to the pages where a Statement of the Law will be c found^" — Law Magazine and Review. "This work purports to contain 'a concise exposition of the nature of crime, the various offences punish- able by the English law, the law of criminal procedure, and the law of summary convictions,' with tables of offences, punishments, and statutes. The work is divided into four books. I'.ook I. treats of crime, its divisions and essentials ; of persons capable of committing crimes ; and of principals and accessories. Book II. deals with offences of a public nature ; offences against private persons ; and offences aRajnst the property of individuals. Each crime is discu.ssed in its turn, with as much brevity as could well be used consistently with a proper explanation of the legal characteristics of the several offences. Book III. explains criminal procedure, including the jurisdiction of Courts, and the various steps in the apprehension and trial of criminals from arrest to punishment. This part of the work is extremely well done, the description of the trial being excellent, and thoroughly calculated to impress the mind of the uninitiated. Book IV. contains a short sketch of ' summary convictions before magistrates out of quarter sessions, ihe table of offences at the end of the volume is most useful, and there is a very full index. Altogether we must congratulate Mr. Harris on his adventure." — Latu Journal. '''■Mr. Harris has undertaken a work, in our opinion, so much needed that he might diminish its bulk in the next edition by obliterating the apologetic preface. The appearance of his volume is as zuell timed as its execution is satisfactory. The author has shotvn an ability of omission -which is a good test of skill, and from the ovcj-^v helming mass of the criminal law he has discreetly selected just so much only as a learner needs to know, and has presented it in terms which render it capable of being easily taken into the mind." — Solicitors' Journal. 28 WORK'S FOR LAW STUDENTS. Second Exlition, in crown 8vo, price 5^. 6' infortnation in this little book." — Law Joumai. Second Edition, in 8vo, price 4/., cloth, A COLLECTION of LATIN MAXIMS ^ PHRASES. LITERALLY TRANSL.VTED. INTENDED FOR THE LbK OK SI LUES IS KOR ALL LEGAL EXA.MINATIONS. Second E, price 9/., cloth, LEADING STATUTES SUMMARISED, FOR THE U.sE OV .STUDENTS. By ERNEST C. THOMAS, BACON SCHOLAR OP THE HON. SOCIETY OP CRAV'S INW, I^TB SCHOI^R OP TRINITY COLt.BCK, OXPOKO; Al'THOK i.i¥ " UiAUING CASE& IN CONSTITITIONAL LAW BRIEFLV STATKU." Second Edition, in 8vo, enlarged, price dr., cloth, LEADING CASES IN CONSTITUTIONAL LAW Briefly Staiki', wnii Im KohLciii'.s a.mj Nuies. By ERNEST C. THOMAS, BAtON SCHOLAR OF THE HON. SOCIETY OF GRAV's INN, LATE SCHOLAR OF TRINITY COLLEGE, OXFORD. " Mr. E. C. Thomas has put together in a slim octavo a digest of the principal cases illustrating Con- stitutional Law, that is to say, all questions as to the rights or authority of the Crown or persons under it, as regards not merely the constitution and structure given to the governing body, but also the mode i I which the sovereign power is to be e.\erci>ed. In an introductory- essay Mr. Thomas gives a ver\- clear and intelligent survey of the general functions of the Executive, and the principles by which they are regulated ; and then follows a summary of leading cases." — Saturday Kn-iav. "Mr. Thomas gives a sensible introduction and a brief epitome of the familiar eading cases." — Law Times. In Svo, j^rice S.f., cloth, AN EPITOME OF HINDU LAW CASES. With Short Notes thereon. And Introductory Chapters on Sources of Law, Marriage, Adoption, Farlition, and Succession. By William M. P. Coghla.v, Bombay Civil Service, late Judge and Sessions Judge of Tanna. STEVENS &- HAYNES, BELL YARD, TEMPL.E BAR. 29 Second Edition, in crown 8vo, price I2j. (xi., cloth, THE BANKRUPTCY ACT, 1883, With Notes of all the Cases decided under the Act ; The consolidated RULES and FORMS, iSS6 ; The Debtors Act, 1869, so FAR AS applicable TO BANKRUPTCY ^LA.TTERS, WITH RULES AND FORMS THEREUNDER ; THE BiLLS OF SALE ACTS, 1878 AND 18S2 ; Board of Trade Circulars and Forms, and List of Official Receivers ; Scale of Costs, Fees, and Percentages, 18S6 ; Orders of the Bankruptcy Judge of the High Court ; and a Copious Index. By WILLIAM HAZLITT, Esq., and RICHARD RINGWOOD, M.A., SENIOR REGISTRAR IN BANKRUPTCY, OF THE MIDDLE TEMPLE, ESQ., BARRISTER- AT-LAW. Second Edition, by R. RINGWOOD, M.A., Barrister-at-Law, " This is a ver>- handy edition of the .^ct and Rules The cross references and marginal references to corresponding provisions of the Act of 1869 are exceedingly useful There is a verj- full index, and the book is admirably printed." — Solicitors' Journal. Part I., price 7.>-. 61/., sewed, LORD WESTBURY'S DECISIONS IN THE EUROPEAN ARBITRATION. Reported by Francis S. Reilly, of Lincoln's Inn, Barrister-at-Law. Parts I., II., and III., price 25J-., sewed, LORD CAIRNS'S DECISIONS IN THE ALBERT ARBITRATION. Reported by Francis S. Reilly, of Lincoln's Inn, Barri>ter-at-Law. Second Edition, in royal Svo, price 30J., cloth, A TREATISE ON THE STATUTES OF ELIZABETH AGAINST FRAUDULENT CONVEYANCES. The Bills of Sale Acts 1S78 and 1882 and the LAW OF VOLUNTARY DISPOSITIONS OF PROPERTY. By the late H. W. MAY, B.A. (Ch. Ch. Oxford). Second Edition, thoroughly revised and enlarged, by S. Worthington Worthington, of the Inner Temple, Barrister-at-Law; Editor of the "Married Women's Property Acts," 5th edition, by the late J. R. Griffith. " In conclusion, we can heartily recommend this book to our re.iders, not only to those who are in large practice, and who merely want a classified list of cases, but to those who have both the desire and the leisure to enter upon a systematic study of our law." — Solicitors' Jonrital. " As Mr. Worthington points out, since Mr. May wrote, the ' Bills of Sale Acts' of 1878 and 1S82 have been p.-issed ; the ' Married Women's Property Act, 1882 '(making settlements by married women void as against creditors in cases in which similar settlements by a man would be void), and the ' Bankruptcy Act, 18B3.' These Acts and the deci- sions upon them have l>een handled by Mr. Worth- ington in a manner which shows that he is master of his subject, and not a slavish copyist of sections and head-notes, which is a vicious propensity of many modern compilers of text-books. His Table of Cases (with reference to all the reports), is admirable, and his Index most exhaustive." — Laiv Times. "The results of the authorities appear to be given well and tersely, and the treatise will, we think, be found a convenient and trustworthy book of reference." — Law Journal. " Mr. Worthington's work appears to have been conscientious and exhaustive." — Saturday Review. " Examining Mr. May's book, we find it con- structed with an intelligence and precision which render it entirely worthy of being accepted as a guide in this confessedly difficult subject. The subject is an involved one, but with clean and clear handling it is here presented as clearly as it could be. . . . On the whole, he has produced a very useful book of an exceptionally scientific character." —Solicitors' Journal. "The subject and the work are both very good. The former is well chosen, new, and interesting ; the latter has the quality which always distin- guishes original research from borrowed labours." — A inerican La7v Review. "We are happy to welcome his (Mr. May's) work as an addition to the, we regret to say, brief cata- logue of law books conscientiously executed. We can corroborate his own description of his labours, ' that no pains have been spared to m.-ike the book as concise and practical as possible, without doing so at the expense of perspicuity or by the omission I of any important points.'" — Law Times. 30 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. In one volume, medium 8vo, price 38^., cloth ; or in half-roxburgh, 42^., A HISTORY OF THE FORESHORE AND THE LAW RELATING THERETO. With a Hitherto Unpublished Treatise by Lord Hale, Lord Hale's " De Jure Maris," and the Third Edition of Hall's Essay on the RIGHTS OF THE CROWN IN THE SEA-SHORE. With Noies, and a.n Aitkndix kelaiing jo Fi.^hekies. By STUART A. iMOORE, F.S.A., OK THE INNER TEMI'LE, DAKRISTER-AT-LAW. "This work is nominally a third edition of the late Mr. Hall's essay on the rights of the Cro»-n in the Sca-shorc, but in rcility is .t> ' .!.i. '.• new production, for out of some 90. Mall's essay takes up but 227. Mr. .M en a book of >;rcat importance, whit \ I: an epoch in the history of the riKhi- .ind the subject in the iittu rnarit, ' ihr kingdom. Hall's treatise (with 1 set out with fresh notes by ibc ; is anylhinR but kindly di'j>"vcd ! for his notes are nc'i! of what he deems l^ scntations. Mr. .M brief for the op|>OMi'' ^i' '-y- ported by Hall, and a 11 .>rgu- inenlivc treatise we havi- i' = arguments .are clearly an.' supported by a wealth I't show the rese.irch of the ■■ been most full .ind claljoratc. . . . l!.'-ri- i- ■. ■ doubt that this is an imjwrtant work, which must have .1 considerable influence on that branch of the law with which it deals. That law is contained in ancient and most inaccc-,iblc nc^wd* ; tbr*c have now been brought to liyht, atiii it in.iv » <. ! !c that ini)>ortant results to the - therefrom. The Profession, not : public, owe the learned authot . . gratitude for providing ready lu ii^nX »u>Jt a wealth of materials for founding and building up arjniments. Mr. Stuart Moore has written a worK whi- ' ' -' i.-U-.. ) . t.rii.v, .-irc utterly un- fo«i :d textbook on th< iiifs, Dec. 1st, ". .i .-. -- ..■> ..i.ii..L.ie work on the Foresnore. ' — '//:f I'lmts. " Mr. Stuart Moore's work on the title of the fv ... . . .1 , \. . .: -. — 1 ,f,g coast of England i low water mark is irv l.iw K-V-. It is • '.nd >t of .1 1,1 11' Crott'O and not to the owner of man .r, Tl.c I'l-t v.i,! h Mr. M.-.r.- wbrr raiK ad ihe altcady 00 the I. ^alu- the •. of •„. / i'St. In one volume, 8vo, price izr., cloth, A TKKATI.^K ON THE LAW RELATING TO THE POLLUTION AND OBSTRUCTION OF WATER COURSES ; Tor.FTHF.U WITH A ]'>KItK SlMMAKY OT THE VaKIOLS SOL KCEs OK Kl\EKS Pollution. By clement HIGGINS, M.A., F.C.S., OK THE INNER TEMPLE, H.\KKISTER-AT-1_AW. " As a compendium of the law upon a special and rather intricate subject, this treatise cannot but prove of great practical valuej and more especially to those who have to advise upon the institution of proceedings under the Rivers Pollu- tion Prevention Act, 1S76, or to adjudicate upon thofe proceedings when brought." — /risA Law Tiiiiis. "We can recommend Mr. Higgins' Manual as the best g^iide we possess." — PuHic Health. "County Court Judges, Sanitary* .Authorities, and Ripari.-in Owners will find in Mr. Higgins" "Treatise a v.iluable aid in obtaining a clear notion of the Law on the Subject. Mr. Higgins has accomplished a work for which he will readily be recognised as having special fitness on account of his practical acquaintance both with the scientific and the legal aspects of his subject." — Laiv Ma^O' sine and Refiew. "The volume is very carefully arranged through- out, and will prove of great utility both to miners' and to owners of land on the banks of rivers." — The Mining yournal. "Mr. Higgins writes tersely and clearly, while his facts are so well arranged that it is a pleasure to refer to his book for information ; and altogether the work is one which will be found verj- useful by all interested in the subject to which it relates." — Engineer. "A compact and convenient manual of the law on the subject to which it relates." — Solicitors' youmaL STEVENS &^ HAYNES, BELL YARD, TEMPLE BAR. 31 In 8vo, Fifth Edition, price 2&., clolh. MAYNE'S TREATISE ON THE LAW OF DAMAGES. FIFTH EDITION. REVISED AND PARTLY REWRITTEN. BY JOHN D. M A Y N E, OF THE IN.S'ER TEMPLE, BARRISTER-AT-LA\V ; AND His Honor Judge LUMLEY SMITH, O.C. " ' Mayne on Damages ' has now become almost a classic, and it is one of the books which we cannot afford to have up to date. We are therefore pleased to have a new Edition, and one so well wTitten as that before us. With the authors we regret the increasing size of the volume but bulk in such a case is better than incompleteness. Every lawyer in practice should have this book, full as it is of practical learning on all branches of the Common Law. The work is unique, and this Edition, like its predecessors, is indispensable."— Z.<72i;/t;«/v/(7/, April, 1894. " Few books have been better kept up to the current law than this treatise. The earlier part of the book was remodelled in the last edition, and in the present edition the chapter on Penalties and Liquidated Damages has been rewritten, no doubt in consequence of, or with regard to the elaborate and exhaustive judgment of the late Master of the Rolls in Wall is v. Smith (^i W. k. 214 ; L. R. 21 Ch. D. 243). The treatment of the subject by the authors is admirably clear and concise. Upon the point involved in Wallis v. Smith they say : ' The result is that an agreement with various covenants of different importance is not to be governed by anv inflexible rule peculiar to itself, but is to be dealt with as coming under the general rule, that the intention of the parties themselves is to be considered. If they have said that in the case of any breach a fixed sum is to be paid, then they will be kept to their agreement, unless it would lead to such an absurdity or injustice that it must be assumed that they did not mean what they said." This is a very fair summary of the judgments in Wallis v. Smith, especially of that of Lord justice Cotton ; and it supplies the nearest approach which can be given at . present to a rule for practical guidance. We can heartily commend this as a carefully edited j edition of a thoroughly good hook."— Solicitors' Journal. I • ' During the twenty-two years which have elapsed since the publication of this well-known \ work, its reputation has been steadily growing, and it has long since become the recognised i authofity on the important subject 0/ which it treats."— 1.\\\ Magazine and Revikw. "This edition of what has become a standard j work has the advantage of appearing under the supervision of the original author as well as of Mr. Lumley Smith, the editor of the second edition. The result is most satisfactory. Mr. Lumley Smith's edition was ably and conscientiously pre- pared, and we are glad to find that the reader still enjoys the benefit of his accuracy and learning. At the same time the book has doubtless been improved by the reappearance of its author as co- editor. The earlier part, indeed, has been to a considerable extent entirely rewritten. " Mr. Mayne's remarks on damages in actions of tort arc brief. We agree with him that in such actions the courts are governed by far looser prin- ciples than in contracts ; indeed, sometimes it is impossible to say they are governed by any prin- ciples at all. In actions for injuries to the person or repuution, for example, a judge cannot do more than give a general direction to the jury to give " This text-book is so well known, not only as the highest authority on the subject treated of but as one of the best text-books ever written, that it would be idle for us to speak of it in Hu words of commendation that it deserves. It is a work that no practising lawyer can do without.'' — Canada Law Journal. what the facts proved in their judgment required. And, according to the better opinion, they may give damages 'for example's sake,' and mulct a rich man more heavily than a poor one. In actions for injuries to property, however, 'vindictive' cr 'exemplary' damages cannot, except in very raie cases, be awarded, but must be limited, as in con- tract, to the actual harm sustained. "It is needless to comment upon the arrangement of the subjects in this edition, in which no alteration has been made. The editors modestly express a hope that all the English as well as the principal Irish decisions up to the date have been included, and we believe from our own examination that the hope is well founded. We may regret that, warned by the growing bulk of the book, the editors have not included any fresh American cases, but we feel that the omission was unavoidable. We should add that the whole work has been thoroughly revised," — Solicitors Journal. 32 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. In crown 8vo, price 4J. 6^., clolh, ABSTRACT DRAWING. Containing Instructions on the Drawing of Abstracts of Title, and an Illustrative Appendix. By C. E. ScOTT, Solicitor, " This little book is intended for the assistance of those who have the framing of abstracts of title entrusted to their care. It contains a number of useful rules, and an illustrative appendix." — I.m'm Times. " A handy book for all articled clerks." — Law Students' Jountal. " Solicitors who have articled clerks would save themselves much trouble if they furnished their clerks with a copy of this little book before putting them on to draft an abstract of a heap of title deeds."— /.(ttc A''otes. " The book ought to be perused by all law students and articled clerks." — Reti Tape. Second Edition, in crown 8vo, price 7J. , cloth, THE LAW RELATING TO CLUBS. By the l.vie JOHN WERTHEIMER, Barristek-at-Law. Second Edition, by A. \V. CHASTER, Barrister-at-Law. " A convenient handbook, drawn up with great judgment and perspicuity." — Morning Post. " Both useful and interesting to those interested in cltil) iii;in.ii;ement." — La-.v Times. " Mr. NVertheimer's historj- of the cases is com- plete and well arranged." — Saturday Revirai. " This is a \cxy neat little book on an intetestinc subject. The law is accurately and well expressed." — Law "Joumal. " This i* a very handy and complete little work. This excellent little treatise should lie on the table of ever)- club." — Pump Cp»rt. In 8vo, price 2'., sewed, TABLE of the FOREIGN MERCANTILE LAWS and CODES in Force in the Principal Slates of EURUl'E and A.MERICA. By CHARLES Lyon-Cakn, Professeur agrcge a la Kacultc de Droit lic Paris ; Profcsseiu k I'Ecole librc des Sciences poliliques. Translated by NAfOLEON Argles, Solicitor, Paris. In 8vo, price is., scvcd. A GUIDE TO THE FRENCH LAWS OF 1889, ON NATION- ALITY AM) MILIT.\RV SERVICE, as affecting British Subjects. By A. l'A\ riT, Solicitor, Paris. In royal Svo, price JO.;. 6,/.. clott.. THE PRACTICE OF EQUITY BY WAY OF REVIVOR AND SUPPLEMENT. With Forms of Orders and Appendix of Bills. By LoFTUS Leigh Pe.mberton, of the Chancery Registrar's Office. In one volume, demy Svo, price ioa 6_ ■„ I " -^ work of such handy reference, well mde.xed, the progress ot time. — isatiirday Rnueiv. ■ . • • ., ' r '.,..' C,, . and containing the essence of a years decisions, There can only be one opinion, and that a very „,ill be found a valuable addition to office libraries. " decided one indeed, in favour of the value of this | — Liverpool Daily Post. *,* The Annual Digest of Mercantile Cases, for 1885, can also he had, price 6s., cloth. THE LAW AND PRACTICE OF ELECTION PETITIONS, With an Appendix containing the Parliamentary Elections Acts, the Corrupt and Illegal Practices Prevention Acts, the Ceneral Rules of Procedure made by the Election Judges in England, Scotland, and Ireland, Forms of Petitions, &c. Third Edition. By Henry Hardcastle, of the Inner Temple, Barrister-at-Law. _" Mr. Hardcastle gives us an original treatise I guide. We can thoroughly recommend Mr. with foot-notes, and he has evidently taken very I Hardcastle's book as a concise manual on the law considerable pains to make his work a reliable | and practice of election petitions." — Law Times. Vols. I., II., III., and IV., price 4/. 17^. REPORTS OF THE DECISIONS OF THE JUDGES FOR THE TRIAL OF ELECTION PETITIONS IN ENGLAND AND IRELAND. PURSUANT TO THE PARLIAMENTARY ELECTIONS ACT, i858. By EDWARD LOUGHLIN O'MALLEY and HENRY HARDCASTLE. %* Vol. IV. Parts III., IV. and V. Edited/?)' J. S. SandarS, Bar^-ister-at-Laiv. In 8vo, price \2s., cloth, THE LAW OF FIXTURES, in the PRINCII'AL RELATION OF LANDLORD AND TENANT, AND IN ALL OTHER OR GENERAL RELATIONS. FOURTH EDITION. By ARCHIBALD BROWN, M.A. Edin. and Oxon., and B.C.L. O.xon. OF THE MIDDLE TEMPLE, BAKRISTER-AT-LAW. "Anew chapter has been added with reference to the Law of Ecclesiastical Fixtures and Dilapida- tions. The book is worthy of the success it has achieved." — LaTv Times. "The treatise is commendable as well for origi- nality as for laboriousness." — Law yournal. M STEVENS d:- HAYNES, BELL YARD, TEMPLE BAR. ^tcbcns anb ^)viBnts' ^crics ai Reprints of the (Earlg ^Icportcrs. SIR BARTHOLOMEW SHOWER'S PARLIAMENTARY CASES. In 8vo, 1876, price 4/. 4^., best calf binding, SHOWER'S CASES IN PARLIAMENT RESOLVED AND ADJUDGED UFUX EET/T/OXS b' U'A'/JS VF ERROR. FOURTH EDITION. CONTAINING ADDITIONAL CASES NOT HITHERTO REPORTED. REVISED AND EDITED BY RICHARD LOVELAND LOVELAND, OF THE INNER TEMPLE, BARRISTER-AT-LAW ; EDITOR OF " KELYNG's CROWN CASES,"' AND "hall's essay on the rights of the ckown i.v the seashore." " Messrs. Stevens & Havnes, the successful publishers of the Reprints of Bellewe, Cooke, Cunningham, Brookes's New Cases, Choyce Cases in Chancery, William Kelynge and Kelyng's Crown Cases, determined to issue a new or fourth Edition of Shower's Cases in Parliament. "The volume, although beautifully printed on old-fashioned Paper, in old-fashioned type, inste.Ki of being in the quarto, is in the more contenient octavo form, and contains several additional cases not to be found in any of the pre\ious editions of the work. " These arc all cases of imjKjrtance, worthy of being ushered into the light of the world by enterprising publishers, I "Shower's Cases arc models for reporters, even in our day. The statements of the I case, the argumcntsofcounsel.andthe opinions of the Judges, are all clearly and ably given. " This new edition with an old face of these valu.able reports, under the able editorship of R. L. Lovcland, Esq., should, in the langu.ige of the advertisement, ' be welcomed by the profession, as well as enable the custodians of public libraries to complete or add to their series of English Law Reports.'" — Canada Law Jonmal. BELLEWES CASES, T. RICHARD II. In Svo, 1S69, price 3/. 3/., lK)und in calf antique, LES ANS DU ROY RICHARD LE SECOND. Collect' ensenibl" hors Ics abria^^inLUis uc ^juihaiu, 1 ililicji'cri cl LJrtXikc. Per Richard Bellewe, dc Lincolns Inne. 15S5. Reprbied from the Original Edition. " No public librarj' in the world, where EnglLih | highly creJiuUle to the spirit and enterprise of law finds a place, should be without a ropy of this private publishers. The work is an important link edition of Bellewe." — Canada Laxv Jaumai. in our legal hiiiorj- ; there are no year books of the 1 reign of Richard II., and Bellewe supplied the only "We have here a./^--«w;V^ edition of Bellewe, ^ substitute by carefully extracting and collecting all and it is really the most beautiful and admirable I the cases he could iind, and he aid it in the most reprint that has appeared at any time. It is a convenient form — that of alphabetical arrangement perfect gem of antique printing, and forms a most ! in th» order of subjects, so that the work is a digest interesting monument of our early legal histor>\ as well as a book of law reports. It is in fact a It belongs to the same class of works as the Year collection of cases of the reign of Richard II.. Book of Edward I. and other similar works which arranged according to their subjects in alphabetical have been printed in our own time under the order. It is therefore one of the most intelli^ble auspices of the M.oster of the Rolls ; but is far I and interesting legal memorials of the Middle superior to any of them, and is in this respect . .'\ge<." — La'u Titttes. CUNNINGHAM^ REPORTS. In Svo, 1871, price 3/. 3^., calf antique, Cunnini;ha.m"s (T.) Reports in K. B., 7 to 10 Geo. II.; to which is prefixed a Proposal Tor rendering the Laws of England clear and certain, humbly offered to the Consideration ol both Houses of Parliament. Third edition, with numerous Corrections. By Thomas Townsend Bcckmll, Barrister-at-Law. " The instructive chapter which precedes the cases, entitled ' A proposal for rendering the Laws of England clear and certain," gives the volume a degree of peculiar interest, independent of the value of many of the reported cases. That chapter begins fjeace and prosperity of every nation than good aws and the due execution of oiem.' The history of the civil law is then rapidly traced. Next a history is given of English Reporters, beginning with the reporters of the Year Books from i Edw. with words which ought, for the information of III. to 12 Hen. VIII. — being near 200 years — and everj- people, to be printed in letters of gold. They | afterwards to the time of the author." — Canada are as follows: 'Nothing conduces more to the ' La-v Journ- well, and the l>ook will I* useful 10 all who have to deal with th« class of cases in which English law alone is not sufKcicnt to settle the question." — Saturday Rez-ictv, March 8, 1879. " The author's object has been to reduce into order the mass of materials already accumulated in the shape of explanation and actual dcriMon on the ini' ' ' ' . ..;s ; and to construct a framework of private intemati0n.1l law, not from t?.' n judicial decisions in English Courts which have sujper«eded them. .-Xn^ .. . , - „ uTanging in a concise form this valuable materLil, that Mr. Foote's wide range of knowledge and legal acumen bear such good fruit. As a guide and assistant to the student of international law, the whole treatise will be invaluable : while a tabic of cases and n general index will enable him to find what he wants without trouble." — SUuuiard. "The recent decisions on points of international law (and there have been a large number since Westlake'i publication) have been well stated. So far as we ha^-e ob«erN'ed, no case of any importance has been omitted, and the leading ca.v:s have been fully anal>-sed. The . ■•' • ' ". not hesitate to criticise the grounds of a decision when these appear to him to conflict « . r rule of law. Most of his criticisms seem to us ver>- just On the whole, we can re '■'.:. Fooie's treatise as a useful addition to our text-books, and we expect it will rapidly find its way into the bands of practising Lawyerv" — Tk* Journal pfjuritprudenct aiui Scottiik Laxv Magasin*. " Mr. Foote hxs eWdently borne closely in mind the needs of Students of Jurisprudence as well as those of the Practitioners. For both, the fact that his work is almcKt entirely one of Case-law will commend it as one useful alike in Chaml>ers and in Court." — Latv Magnxint ana Kreiem. "Mr. Fooie's book will be useful to the student One of the best points of Mr. Foote's book is the ' Continuous Summary-,' which occupies about thirty pages, and is divided into four parts — Persons, Property, Acts, and Procedure. Mr. Fcxjte remarks that these summaries are not in any way intended as an attempt at codification. However that may be, they are a digest which reflects high credit on the author's assiduity and capacity. They are * meant merely to gtiide the student ; ' but they will do much more than guide him. They will enable him to get such a grasp of the subject as will render the reading of the text e.-isy and fruitful." — Z.'erj--day requirements of the English Practitioner. The whole \'olume. although designed for the use of the practitioner, is so moderate in size — an octavo of 500 pages only — and the arrargenient and development of the subject so well conceived and executed, that it will amply repay perusal by those whose immediate object may be not the actual decisions of a knotty point but the satisfactory disposal of an examination paper." — Oxford and Cambridge Undergraduatti Journal. "Since the publication, some twenty years ago, of Mr. Westlake's Treatise, Mr. Foote's book is, in our opinion, the best work on private international law which has appeared in the English language. .... The work is executed with much ability, and will doubtless be found of great value by all person* who have to consider questions on pri%-ate international law." — Athena^um. STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 37 THE QUARTERLY DIGEST OF ALL REPORTED CASES. Price FIVE SHILLINGS each Number. No CCXVIII. (Vol. I, No. I. of the New Quarterly Series.) November, 1875. No. CCXIX. (Vol. I, 4th Series No. II.) February, 1876. N.B.— These two Numbers are out of print. No CCXX (Vol. I. 4th Series No. III.) For May, 1876. No! CCXXI. (Vol. I. 4th Series No. IV.) For August, 1S76. Nos CCXXII. to CCXLV. (Vol. 2, 4th Series, to VoL 7, 4th Series, Nos. V. to XXVIII.), * " November, 1876, to August, 1882^ Nos CCXLVI. to CCXLIX. (Vol. 8, 4th Series Nos. XXIX. to XXXII.), November, 1882, to August, 1883^ Nos. CCL. to CCLIII. (Vol. 9, 4th Series, Nos. XXXIII. to XXXVI.), November, 1883, to August, 1884^ Nos. CCLIV. to CCLVII. (Vol. 9. 4th Series, Nos. XXXVII. to XL.), November, 1884, to August, 1885^^ Nos. CCLVIII. to CCLXI. (Vol. X., 4th Series, Nos. XLI. to XLIV.), November, 1885, to August, ihhb. Nos. CCLXlT. to CCLXV. (Vol.'xLT^^ries, Nos. XLV.To XLVIII.), November, 1886, to August, 1887^ Nos. CCLXVI. to CCLXIX. (Vol XII., 4th Series Nos. XLIX. to LIT.), November, 1887, to August, 1888^ Nos. CCLXX. to CCLXXIII. (Vol. XIII 4th Series, Nos. LIII. to LVI.) November, 1888, to August, 1889. V rri VXIV to CCLXXVII. (Vol. XIV., 4th Series, Nos. LVII. to LX.), Nos. CCLXXIV. to ^"^^ ^^"^^^^ ,^889. to August, 1890. Nos CCLXXVIII. to CCLXXXI. (Vol. XV., 4th Series, Nos. LXI. to LXIV.), JNos. ^.v,i..v.v November, 18 90, to August, 1891. M rri VXXTl' to CCLXXXV. (Vol. XVI., 4th Series, Nos. LXV. to LXVIII.), Nos. CCLXXXII. to CCLXX^^^^^ ^^^^^ to^gust^_i892. Nos CCLXXXVL to CCLXXXIxTo^^rXVII., 4th Series, Nos. LXIX. to LXXII.), Nos. LCLAA.vv 1. November, 1892, to August, 1893^ Nos CCXC. to'cCXCHMVol. XVIII., 4th Series, Nos. LXXIII. to LXXVI.). NOS. L-CAV.. 10 November, 1893 , to August, 1894- Nos CCXCIV. to CCXCVnTr^^^XD:., 4th Series, Nos. LXXVII. to LXXX.), Nos. CCX^iv. November, 1894, to August, i895- , r, .- •»•«„«? ^n<; naid in advance to the Publishers, will United Kmgdom, or tor 24s. to the Colonies and Abroad. 38 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. Fifth KHition, revised and enlarged, 8%-o., price 32/. net. A TREATISE ON HINDU LAW AND USAGE. By John D. MayiNE, of the Inner Temple, liarrister-at-Law, Author of "A Treatise on Damages," y I>. I', de liKUVN, H.A., LL.H., Elnien Essayist of the University of the Caj>e of Good Hope ; Advocate of the .Supreme Court of the Colony of the Cape of Good Hope, and of the High Court of the South African Republic With Kacsiniile Portrait of Mr. Ht'CO UE CiROOT. In 2 Vols.. Royal Svo, price QCXf.. cloth, VAN LEEUWEN'S COMMENTARIES ON THE ROMAN-DUTCH LAW. Revised and Editid with Notes in Two \'olumes l)y C. \V. Decker, Advocate. Translated from the original Dutch by J. G. KoTZfe, LL. H., of the Inner Temjile, Harrister-al-Law, :ind Chief Justice of the Transvaal. With Fac- simile Tortrait of Df.ckkr from the Edition of 17S0. *,• Vol. II. can be had separately, price 50/. In Svo, juice K/. 6rice 42.^., cloth. THE JUDICIAL PRACTICE OF THE COLONY OF THE CAPE OF GOOD HOPE. AND OF SOUTH AFRICA GENERALLY. With suitable and copious I'ractical Forms, subjoined to, and illu»lrating the Practice of the several Subjects treated of. Hy C. H. V.an Zvl, Attorney-at-Law, Notary Public, and Conveyancer, etc. etc. In Crown Svo, price ^\s. 61/., boards, THE INTRODUCTION TO DUTCH JURISPRUDENCE OF HUGO GROTIUS. with Notes by Simon van Groenwegen van der Made, and References to Van der Kee.sel's Theses and Schorer's Notes. Translated by A. F. S. MA.\sDORr, V>.\., of the Inner Temple, Barrister-at-Law. In i2mo, price 15^. net, boards, SELECT THESES ON THE LAWS OF HOLLAND & ZEELAND. Being a Comment.iry of Hugo Grotius' Introduction to Dutch Jurisprudence, and intended to supply certain defects therein, and to determine some of the more celebrated Controversies on the Law of Holland. By D. G. van der Kessel, Advocate. Translated by C. A. LORKNZ, Barrister-at-Law. Second Edition. With a Biographical Notice of the Author by Professor J. De Wal, of Leyden. STEVENS &- HAYNES. BELL YARD, TEMPLE BAR. 39 THE Bar Examination Slnnual FOR 1894. (In Continuatioii of the Bar Examination Journal.) Price 3^. EXAMINATION PAPERS, 1893. FOR Pass, Honors, and Barstow Scholarship. RESULT OF EXAMINATIONS. NAMES OF SUCCESSFUL CANDIDATES. EXAMINATION REGULATIONS FOR 1S94. A GUIDE TO THE BAR. LEADING DECISIONS AND STATUTES OF 1894. NEW BOOKS AND NEW EDITIONS. W. D. EDWARDS, LL.B., OF Lincoln's inn, barrister-at-la\v. Now published, in 8vo, price i8j. each, cloth, THE BAR EXAMINATION JOURNAL, VOLS.IV., v.. VI. VII., VIII., IX. & X. Containing the Examination Questions and Answers from Easter Term, 1S78, to Hilary Term, 1S92, with List of Successful Candidates at each examination, Notes on the Law of Property, and a Synopsis of Recent Legis- lation of importance to Students, and other information. By a. D. TV.SSEN and W. D. EDWARDS, Barristers-at-Law. Fifth Edition. In 8vo, price 9s. cloth, A SUMMARY OF JOINT STOCK COMPANIES' LAW. By T. EUSTACE SMITH, OF THE INNER TEMPLE, BARRISTER- AT- LAW. " The author of this handbook tells us that, when an articled student reading for the final examina- tion, he felt the want of such a work as that before us, wherein could be found the main principles of law relating to joint-stock companies . . . Law students may well read it ; for Mr. Smith has very wisely been at the pains of giving his authority for all his statements of the law or of practice, as applied to joint-stock company business usually transacted in solicihjrs' chambers. In fact, Mr. Smith has by his little book offered a fresh inducement to students to make themselves— at all events, to some extent — acquainted with company law as a separate branch of study."— Zaw Times. "These pages give, in the words of the Preface, ' as briefly and concisely as possible a general view both of the principles and practice of the law affecting companies.' The work is excellently printed, and authorities are cited ; but in no case is the very language of the statutes copied. The plan is good, and shows both grasp and neatness, and, both amongststudents and laymen, Mr. Smith's book ought to meet a ready sale." — La7u Journal. " The book is one from which we have derived a large amount of valuable information, and we can heartily and conscientiously recommend it to our readers." — Oxford and Cambridge Under^ra- duates JournaL 40 STEVENS &> HAYNES, BELL YARD, TEMPLE BAR. In 8vo, Sixth Edition, price 9^., cloth, THE MARRIED WOMEN'S PROPERTY ACTS ; 1870, 1874, 1882 and 1884, With Copious and Explanatory Notes, and an Appendix of the Acrs RELATING TO MARRIED WOMEN. By Archihald Brown, M.A., Edinburgh and Oxon., and the Middle Temple, Barnsler-at-Law. Being the Sixth Edition of The Married Women's Property Acts. By the late J. K. GRIFFITHS, B.A. Oxon., of Lincoln's Inn, Barnster- at-Law. " Upon the whole, we are of opinion that thU is the best work upon the subject which has been issued since the passing of the recent Act. Its po'^ition a< n w' of the marKinnl lic.iilings of the v-arious par.tgraphs in the body of the text. This book u worthy of all .success." — Lau- Mit);azint. In 8vo, price I2r., cloth, THE LAW OF NEGLIGENCE. SECOND EDITION. By Robert Campbell, of Lincoln's Inn, B.irri.stcr-at-La\v, and Advocate of the Scutch B.ir. " No less an authority than the late Mr. Justice new edition broaeht down to date. It is indeed an Willes, in his judgment in (''f^rnhrim v. li'hitr n! Ir n-;-) t-h -l:\ri\- fn-nti^e -n .t somewhat difficult LioH Hottl (o., characir:^ ■ ■ ^ .,;h the ' Law of NcgliKence ' .vs a ' Juris- sincc very good books jic ' We coa- when comiwrcd will. t tii'.'-:jt ) rr ,:iimr:i.; it .'.liWe to the student and the ones which annually I :ik practitioner." — Lnui Ma^azint. the profession will be 1 ■ : lis > In rojTil 8vo, AN INDEX TO TEN THOUSAND PRECEDENTS IN CONVEYANCING and to common and commercial KOKM.S. Arr.Tni;ni in Alphabetical order with Subdivisions of aa Analytical Nntiirc : together with .in Appendix containing an Abstract of the Stamp Act, 1870, with a Schedule of Duties ; the Regulations relative to, and the Stamp Duties pay- at^le on, Probates of Wills. Letters of Administration, Legacies, and Successions. By Walter Arthl'R (^opinger, of the Middle Temple, liarrister-at-Law. BIBLIOTHECA LEGUM. In i2mo (nearly 400 pages), price zs., cloth, A CATALOGUE OF LAW BOOKS, including aH the Reports in the various Lourts of England, L->C'.'tlanvi. aaJ Ireland; with a .Supplement lo December, 1SS4. By Henry G. Stevens and Robert W. Havnes, Law Publishers. In small 410, price 2s., cloth, beautifully printed, with a large margin, for the special use of Libr.irians, A CATALOGUE OF THE REPORTS IN THE VARIOUS COURTS OF THE UNITED KINGDOM OF GREAT BRITAIN AND IRELAND, arranged both in alpha- betical >S- CHRONOLOGICAL ORDER. By Stevens & IIaynes, Laiv Publishers. STEVENS 6- HAYiXES, BELL YARD, TEMPLE BAR. 41 Second Edition, much enlarged, in 8vo, price 20J., cloth. CHAPTERS ON THE LAW RELATING TO THE COLONIES. To which are appended Topical Indexes of Cases decided in the Privy Council on Appeal from the Colonies, Channel Islands and the Isle of Man, and of Cases relating to the Colonies decided in the English Courts otherwise than on Appeal from the Colonies. By CHARLES JAMES TARRING, M.A., ASSISTANT JUDGE OF H.B.M. Sl'PREXlE CONSILAK COURT, CONSTANTINOPLE, AND H.M.'S_ CONSUL ; AUTHOR OF "BRITISH CONSULAR JURISDICTION IN THE EAST," "a TURKISH GRAMMAR, ETC. CONTENTS. Table of Cases Cited. I Chapter IV.— The Judiciary and the Bar. Table of Statutes Cited. Chapter V.— Appeals from the Colonies. j Chapter VI. — Imperial Statutes relating to the Introductory. — Definition of a Colony. I Colonies. Chapur I.— The laws to which the Colonies are ' Section i.— Imperial Statutes re ating to the subject. ' Colonies m general. Section I.— In newly-discovered countries. Section 2.— Subjects of Imperial Legislation Section 2.— In conquered or ceded countries. relating to the Colonies in Section 3.— Generally. general. _ Chapter II.— The Executive. Section 3.— Impenal Statutes relating to par- Section I.— The Governor. ticular Colonies. A. — Nature of his office, power, and • . . , , . , ti • duties. j Topical Index of Cases decided in the Frivy B.— Liability to answer for his acts. ' Council on appeal from the Colonies, the 1. —Civilly. I Channel Islands, and the Isle of Man. 1. a.— In the courts of his Govern- [ Index of some Topics of English Law dealt with nient. in the Cases. , ,^ , ■ b.—\n the English courts. ; Topical Index of Cases relating to the Colonies 2. — For what causes of action. j decided in the English Courts otherwise than on II. — Criminally. appeal from the Colonies. Section 2.— The Executive Council. Index of Names of Cases. Chapter III. — The Legislative Power. Section I. — Classification of colonies. Appendix I. Section 2. — Colonies with responsible govern- 1 — II. ment. 1 Section 3.— Privileges and powers of colonial I General Index. Legislative Assemblies. I In 8vo, price io.f., cloth, THE TAXATION OF COSTS IN THE CROWN OFFICE, CO.MrRISING A COLLECTION OK BILLS OF COSTS IN THE VARIOUS MATTERS TAXABLE IN THAT OFFICE; including COSTS UPON THE PROSECUTION OF FRAUDULENT BANKRUPTS. AND ON APPEALS FROM INFERIOR COURTS ; TOGETHER WITH A TABLE OF COURT FEES, and a scale of costs usually allowed to solicitors, on the taxation of costs on the crown side of the queens bench division of the high court of justice. By FREDK. H. short, CHIEF CLKKK IN THE CKOWN OFFICE. "This is decidedly a useful work on the subject of those costs which are liable to be taxed before the , Queen's Coroner and .Attorney (for which latter name that of ' Solicitor' might now well be substituted), or before the master of the Crown Office ; in fact, such a book is almost indispensable when preparing costs [ for taxation in the Crown Office, or when taxing an opponent's costs. Country solicitors will find the scale \ relating to bankruptcy prosecutions of especial use, as such costs are taxedin the Crown Office. The general j observations' constitute a useful feature in this manual."— ZdTw 7V;««. \ "The recent revision of the old scale of costs in the Crown Office renders the appearance of this work ; particularly opportune, and it cannot fail to be welcomed by practitioners. Mr. ijhort gives, in the fiist j place, a scale of costs usually allowed to solicitors on the taxation of costs in the Crown Office, and thun bills of costs in various matters. These are well arranged and dearly ^r'vaX.^A."— Solicitors' Journal. 42 STEVENS &^ HAYXES, PELL YARD, TEMPLE BAR. Just Published, in 8vo, price "js. dd., cloth, j BRITISH CONSULAR JURISDICTION IN THE EAST, ! WITH TOPICAL INDICES OY CASES ON APPEAL FROM, AND RELATING TO, CONSULAR COURTS AND CONSULS; Alsu .1 Collection of Statutes concerning Consuls. Bv C. J. TARRING, M.A., ASSISTANT-JL'DGE OF H.B.M. SUfKeME COSSl'LAR COVRT FOR THE LEVANT. In one volume, 8vo, price %s. 6d., cloth, A COMPLETE TREATISE UPON THE NEW LAW OF PATENTS, DESIGNS, & TRADE MARKS, CON.SISTINC; OF THE PATENTS. I)ESI(..\S. AND TRADE MARKS ACT, 1883, WITH THE RULES AND EOR.MS, FULLY ANNOTATED WITH CASE.S, &c. .\ncl a Statement of the Principles of the Law \x\Mm those subjects, '.vith a Time Table and Copious Imlex. By EDWARD MORTON DANIEL, OF Lincoln's inn, dakkister-at-law, associate of the institttk or patfjL\S BANNING, M..\., OK THE I.S'NEK TEMI'LE, BAKRISTER-AT-LAW. "The work is decidedly valuable." — Law Timts. " Mr. Hanning hax adhered to the plan of printing the Acts in an appendix, and making his book a running treatise on the ca.<«-law iherron. 1 ne case5 have evidently been investigated with care and digested with clciniess and intellectuality." — /.an' Jcurnal. In Svo, price li., sewed, .\N ESSAY ON THE ABOLITION OF CAPITAL PUNISHMENT. Embrcuiiti^ more f^ariUuUily an Euunciaticn and Analysis of the I^i iiuipUs 0/ Law as applicable to Criminals 0/ the Highest Degree of Guilt. By WALTER ARTHUR COPINGER, OF THE MIPDLE TEMPLE, ESy., BARRISTER- AT-LA\V. Sixlh Edition, in Svo, price 31J. 6orte<; r the most part the very languiiKc .Til..- (" un , li.i^ ! .-.-t .,..1 .-rr . t... Wriiirn ;, i; .--d a master of his subject, and will, t .v. jrk cannot fail to prove of the grc. • 1 from their supenncum- I*"''''! . . , .;il4 of doctrine amidst the oppressive dcLiuib of prufc-AiwUMi wwrtc" — Lttw Mmg»*tnt mmd Kevirto. BY THE SAME AUTHOR. In two volumes, royal 8vo, 1872, price 70/., cloth, THE LAW k PRACTICE OF INJUNCTIONS. KMUK \i I.S.. ALL THE SUBJECTS IN WHICH COURTS OF EQUITY AND COMMON LAW HAVE JURISDICTION. li V W I L L I A M J O Y C K, OK Lincoln's ins, makristw-at-law. RSVZXWB. " .'X work which aims at being so ntKoluiely complete, as that of Mr. .K.>.c wy.-w a vifi.jc. t which is of alnivjsi ucrpc. CourLs, cannot fail to be a ^ profession, and doubtless, 1 and largely used, for it is as ali^olutcly couip.cic ;»» it aims at being This work Ls therefore, eminently a work for the practitioner, being full of practical utility in every page, and every sentence, of it We have to congratulate the pro- fession on this new acquisition to a digest of the law, and the author on his production oi a work of permanent utility and fame." — Latv Magazint and Ka-icif. " Mr. Joyce has produced, not a treatise, but a complete and compendious ex/t>itriifm of the Law and Practice of Injunctions both in equity and common law. "Part in. is devoted to the practice of the Courts. C^Mttitns an iitHount ct raJuai'ie ami ttciiHicni tiiatter iwa.'kfrc tisc coilecldi. " From ihew renuirks it will !« sufficiently jier- cei»cii \^'.,.xi c;.>";> .-ale .ii.d p.iiii-t.i'Kinc liiiiu*li-\. as ...;~u(, ikiiti iio 4' could lend towaii cation of the gci.-. ... , , ._ : :..^ ._ u Practice of Injunciiuiu>. — Law Journal. " He does not attempt to ^o an inch beyond that for which he has express written authoric)- ; he al- lows the cases to speak, and does not speak for them. "The work is .something more than a treatise on the Law of Injunctions. It gives us the general jaw on almost every- subject to which the process of injunction is applicable. Not only tnglLsh, but .\nierican decisions are cited, the aggre.ijatc number being 3,500, and the statutes cited 160, whilst the incex is. wc think, the moni elaborate we have ever seen — occup\nnc nearly ^o ^lasc-;. The work is proLiabiy ectireiy c.\hausti^-e.' — Laze Thnes. " This work, considered either as to its matter or manner of execution, is no ordinarj' work. It is a complete and e.\haustive treatise both as to the law and the practice ci granting injunctions. It must supersede all other works on the subject. The terse statement of the practice will be found of incalculable value. We know of no book as suitable to supply a knowledge of the law of injunctions to our common law friends .is Mr. Joyce's exhausti\-e work. It is alike indispen.sable to membiers of the Common Law and Equity Hars. Mr. Joyce's great work would be a casket without a key unless accompanied by a good index. His index is ver>- full and well arranged. We feel that this work is destined to take its place as a standard text-l>ook, and tki text-book on the particular subject ol which it treat.s. l"he author deserves great credit for the very ereat labour bestou-ed upon it. The publishers, as usual, have acquitted themselves in a manner deserving of the high reputation they bear." — Canada Law Journal. STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 45 Third Edition, in 8vo, price 20j-., cloth, A TREATISE UPON THE LAW OF EXTRADITION, WITH THE CONVENTIONS UPON THE SUBJECT EXISTING BETWEEN ENGLAND AND FOREIGN NATIONS, AND THE CASES DECIDED THEREON. By Sir EDWARD CLARKE, OF Lincoln's ixn, s.-g., q.c, m.p. " Mr. Clarke's accurate and sensible book is the wants to learn the principles and practice of the best authority to which the English reader can law of extradition will be greatly helped by Mr. turn upon the subject of Extradition." — Saturday Clarke. Lawyers who have extradition business Review. . . \ ^'" t*"*^ ''^'^ volume an excellent book of reference. "The opinion we expressed of the merits of this ■ Magistrates who htLve to administer the extradition work when it first appeared has been fully justified law will be greatly assisted by a careful perusal of by the reputation it has gained. It is seldom we 'Clarke upon Extradition.' This may be called a come across a book possessing so much interest to warm commendation, but those who have read the the general readerand at the same time furnishing so book will not say it is unmerited." — Laui Journal. useful a guide to the lawi-er."—6W/rr'/<"""««^ i T"^ Ti.mes of September 7, 1874, in a long "The appearance of a second edition of this article upon "Extradition Treaties," makes con- treatise does not surprise us. It is a useful book, siderable use of this work and writes of it as " Mr. well arranged and well written. A student who Clarke s useful Work on Extradition." In Svo, price 2s. 6d., cloth, TABLES OF STAMP DUTIES FROM 1815 TO 1878. By WALTER ARTHUR COPINGER, OP THE MIDDLE TEMPLE, ESQI_'1RE, BAKKISTER-AT-LAW : AUTHOR OK " THE LAW OF COPYRIGHT IN WORKS OF LITERATURE AND ART," " I.NDEX TO PRECEDE.NTS IN CONVEYANCING," "TITLE DEEDS," &C. 'We think this little book ought to find its way into a good many chambers and offices." — Soli- citors yournal. " This book, or at least one containing the same amount of valuable and well-arr.-inged information, should find a place in every Solicitor's office. It is of especial value when examining the abstract of a large number of old title-deeds."— Zrtfc Times. " His Tables 0/ Stain f> Duties, from 1815 to 1878, have already been tested in Chambers, and being now published, will materially lighten the labours of the profession in a tedious department, yet one re- quiring great care."— Zdw Magazine and Review. In one volume, Svo, price 14J., cloth, TITLE DEEDS: THEIR CUSTODY, INSPECTION, AND PRODUCTION. AT LAW IN EQUITY. AND IN MATTERS OF CONVEYANCING. [ncluding Co%enants for the Production of Deeds and Attested Copies ; with an Appendix of Precedents, the Vendor and Purchaser Act, 1874, ..Sic. &c. &c. By Walter Arthur Copi.nger, of the Middle Temple, Barrister-at-Law ; Author of " The Law of Copyright" and " Index to Precedents in Conveyancing." " The literary execution of the work is good here. -Mr. Copinger has supplied a much-felt want enough to invite quotation, but the volume is not by the compilation of this volume. We have not large, and we content ourselves with recommending ' sp.ice to go into the details of the book ; it .ippears it to the profession. " — Law Times. 1 well arranged, clearly written, and fully elaborated. " A really good treatise on this subject must be j With these few remarks we recommend his volume essential to the lawyer : and this is what we have to our readers." — Law Journal. Third Edition, in Svo, considerably enlarged, price 36^., cloth, THE LAW OF COPYRIGHT In Works of Literature and Art ; including that of the Drama, Music, Engraving, Sculpture, Painting, Photography, and Ornamental and Useful Designs ; together with International and Foreign Co]iyright, with the Statutes relating thereto, and References to the English and American Decisions. By Walter Arthur Copinger, of the Middle Temple, Barrister-at-Law. "Mr. Copinger's book is very comprehensive, merits which will, doubtless, lead to the placing of dealinj^ with every branch of his subject, and even ^his edition on the shelves of the members of the extending to copyright in foreign countries. So far profession whose business is concerned with copy- as we have examined, we have found all the recent 1 right ; and deservedly, for the book is one of con- authorities noted up with scrupulous care, and siderable value." — Solicitors' Journal. there is an unusually good index. These are 1 46 STEVENS &» HAYNES, BELL YARD, TEMPLE BAR. Third Edition, in One larfje Volume, 8vo, price 321., cloth, A MAGISTERIAL AP POLICE GUIDE: BEIxNG THE LAW RELATIKC. TO THE PROCEDURE, JURISDICTION, AND DUTIES OF MAGISTRATES AND POLICE AUTHORITIES, IN THE METROPOLIS AND IN THE COUNTRY. With an Introduction showing the General Procedure before Magistiates both in Indictable and Summary Matters. By henry C greenwood, stihendiakv ma&istratk for the district of the starfurushirk rotteeles ; and TEMPLE CHEVALIER MARTIN, CHIF.I' CLERK TO TMK MAGISTRATE". AT LAMBKTN MlUIOt tOL RT, LOMJO.S : AITIIOR or "THE LAW Of MAIKTBKANCE A.NU UEiERTIOK,' "THE NEW FOEMOUST," ETC Third Edition. Including the SF.SSI0S 52 & 53 Vict., and the Cases Drcii.Kn in the .stiiKKioK CoTRIs to the Em> of the VeaR 1889, rri'istd and enlatk;cd . liv TEMPLL CHEVALIER MARTIN. •A second cdiiion h.^ apjx-ared of Messrs. Greenwood and M.artin's valuable and compnhcnsive maKiMinal and police liuide. a lxx>k which Justices of the peace should take cart- 10 include in tluir Libraries ■—.S<7/»fni'tfr Rmnc. "lknccilislli.iiwer.il . . .. ._ ^-. ^.,„,y by Its rrsi-.irch, but also by ;' '•* iscni- of the happy fi-w of tl. ..,,,■ 11''?, certainly wait iil>on it. We are moreover convintcu H.ai no cJluU 1.^3 been spaieU by its authors to render it a thoroughly trticicnt and trustworthy guide. "—/-JU' Journal. ••Macistratcs will lind a valuable bandl)ook in Ntcssre. Greenwood and Martin's • Maijibu'riai and Police Guide." of which a fn->h Kdition h.^ just lut think that its usefulness will speedily ensure /or U as large a sale as its vierits deserve.'— Midland CoutUies Herald. " The exceedinclv arduous task of collecting together all the enactments on the subject Ins been ablv and etti'cientlv pertbrmed. and the arrangement is so m'-lhodical and precise that one is able to liw a linger on a Section ol an .\ci almost in a moment. Ii is wonderful what a nv\ss of information is comprised in so comparauvely small a space. \\ e have much pleasure in recommending the volume not only to our professional, but also to our gener.U readers ; nothing ^can be more useful to the public than an acqiuunuince wiih the outlines of magisterial! jurisdiction and procedure.'— 5/t^^/i/ Post. STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 47 In one thick volume, 8vo, price 325. , cloth, THE LAW OF RAILWAY COMPANIES. Comprising the Companies Clauses, the Lands Clauses, the Railways Clauses Consoli- dation Acts, the Railway Companies Act, 1867, and the Regulation of Railways Act, 1868 ; with Notes of Cases on all the Sections, brought down to the end of the year 1868 ; together with an Appendix gi\-ing all the other material Acts relating to Railways, and the Standing Orders of the Houses of Lords and Commons ; and a copious Index. By Henry Godefroi, of Lincoln's Inn, and John Shortt, of the Middle Temple, Barristers-at-Law. In a handy volume, crown Svo, 1870, price \os. 6d.^ cloth, THE LAW OF SALVAGE, As administered in the High Court of Admiralty and the County Courts; with the Principal Authorities, English and American, brought down to the present time ; and an Appendix, containing Statutes, Forms, Table of Fees, etc. By Edwyn Jones, of Gray's Inn, Barrister-at-Law. In crown Svo, price 4^., cloth, A HANDBOOK OF THE LAW OF PARLIAMENTARY REGISTRATION. WITH AN APPENDIX OF STATUTES AND FULL INDEX. By J. R. SEAGER, Registration Agent. In Svo, price 5^., cloth, THE LAW OF PROMOTERS OF PUBLIC COMPANIES. Bv NEWMAN WATTS, OF Lincoln's inn, barrister-at-law. " Some recent cases in our law courts, which at " Mr. Watts has brought together all the lead- the time attracted much public notice, have demon- ing decisions relating to promoters and directors, strated the want of some clear and concise exposi- | and has arranged the information in a verj- satisfac- tion of the powers and liabilities of promoters, and | tor>- manner, so as to readily show the rights of this task has been ably performed by Mr. Newman i different parties and the steps which can be legally Watts." Investor's Guardian. taken by promoters to further interests of nf w com- I panies." — Daily Chronicle. In Svo, price Ts. 6c/., cloth, TITLES TO MINES IN THE UNITED STATES, WITH THE STATUTES AND REFERENCES TO THE DECISIONS OF THE COURTS RELATING THERETO. By W. a. HARRIS, B.A. Oxon., OF LINCOLN'S INN. BARRISTER-AT-LAW ; AND OF THE AMERICAN BAR, Second Edition, in One Vol., Svo, price 12s., cloth, A COMPENDIUM OF ROMAN LAW, Founded on thf. Insi'ITUTES or Jtstinian; together with Examination Questions Set in the University and Bar E.xaminations (with Solutions), and Definitions of Leading Terms in the Words of the Principal Authorities. Second Edition. By Gordon Campbell, of the Inner Temple, M.A., late Scholar of Exeter College, Oxford ; M.A., LL.D., Trinity College, Cambridge ; Author of "An Analysis of Austin's Jurisprudence, or the Philosophy of Positive Law." 48 STEVENS «&* HA YNES, BELL YARD, TEMPLE BAR. N Jo the Names of Authors and Editors Alured (P. F.), page 21. Argi.rs (N.), 32- Atiknhorouch (C. L. ), 27. Baldwin (E. T.), I5- Banning (II. T.), 42 Heal lE.), 32- liELLEWE (R.), 34- ISeven (T.), 8. 15LYTJI (E. E.), 22. Hrice (Skwaro), 9, 16. Hrooke (Sir K.), 35. Urooks (W. J.), »3- Brown (Ar* iiiiiau>), 20, 22, 26, 33, 40. Browne (J. II. Bai-koik). 19. Buchanan (J.), 38. BUCKLKV (11. B.), 17- BucKNiu. (T. T.). 34, 35- Camihei.i. (Gordon), 47. CAMriiKi.i. (KoiiERT), 9. 40. t ARMUUAKI. {C. n. E.), 21. ( ixii. (Lord K.), II. ( IIASTI.R(A.\V.).32. CHITTY(J.J.C.},38. (LARKK (Edward), 45' C'linivrr (Pin), 43- (.(KiUI.AN (\V. M.), 28. Cooke (Sir G.), 35. l'(WKE (Hic.H), lo. Coi-iNGER (W. A.), 40. 42. 45- Corner (R. J.), 10. Ckaifs (W. p.). 6, 9. CUNNINCIIAM (II. S.), 3S, 42, CuNNiNr.iiAM (John), 7. Cunningham (T.), 34- Daniki. (E. M.), 42. Darling (C. J.), iS. I)eane(H. C), 23. I)K Briyn (D. P.), jS- I^K "^^ -^i U)- j^ DIBDIN. (L. T.), 10. DlNCAN (J. A.), ii. Edwards (W. U.), 10, 39. Ei.GOOD (E. J.), 6, 18, 43. ELi-ioiT ^G.), 14. Emden (A.). II. Errington (F. II. L.), 10. EVEKSl.EY (\V. p.), 9- FiNI.ASON (\V. F.), 32. FoA(E.), II. FOOTE (J. Aldekson), 36. FORIiES (U. A.), 18. Forsyth (W.), 14. Frost (R.). 12. GiBBS (F. \V.). 10. GODEKKOl (II.), 47- Greenwood (H. C), 46. Griffiths (J. R.), 40. Grigsby (W. E.). 43. Groiu's (Hugo), 38. ITali. (R. G.), 30. Hanson (A.), 10. Hardcastle (II.), 9. 33- Harris (Seymour F.), 20, 27. Harris (\Y. A.), 47. Harrison (J. C). 23. Harwood (R. G.), 10. Hazlitt (\\.), 29. D EX of Works enu merated in thts Catalogue. Hicgins (C), 30. Houston (J.), 32. Hudson (A. A.), 12. Hurst (J.>, n. Indermaur (John), 24, 25, 28. Jones (E.), 47- Joyce (W.), 44. Kay (Josei'H), 17. Kei.ke(W. IL), 6. Kelyng (Sir T-). 35' Kelync.e (\V.), 35- ' KoTzfe(J. (;.). 38. Ll.OYD (EVRK). 13. LOKKNZ (C. -\-), 3S. LovEi.AND (R. L.), 30, 34, 35- Maasdorp(A. F. S.), 38. MArASKIE (S. C). 7- Ma n..n. T. W.), 17- yi •). 35- Ma... . ,t.. iN.), 26. Martin (Temi-i.r C), 7. 46. Maitins-in (M. \V.), 7. May (H. W.). 29. Maynk(John I).). 31. 38. MmoR (K. H.\ 10. Mes/.ies(\V.), 38. M.-.KE (S. A. , 30. 0'Mai.ley(E. L.), 33- pAvin (A.), 32. Peile (C. J.», 7- Prmherton (L. L.), 18, 32. Pini'^oN (S. I_\ 20. POkTEK (1. \i.\ 6. Rkiii.y (F. S.), 29. RiNr.\vooD(R.), 13. 15. 29 Sai KoWsKI (C), 14. -; •■ .Nn(T. NV.). 13. > NV (F. C. Von), 20. ^. ..., (C. E.). 32- r>HAi.fcK (J. R.), 47- Short (F. H.), 10, 41. Shorti (John), 47. Shower (Sir B.), 34- SiMisoN (A. H.), 43. Si-ATER (J.), 7. Smith (Tustace), 23, 39. Smith (F. J.), 6. Smith (Lumi.ey), 31. Sneli. (E. II. T.), 22. Story, 43. Tarring (C. J.), 26, 41, 42- Tasweli-Langmead, 21. Thomas (Ernest C), 28. Tyssen (A. D.), 39. Van der Keesel (D. G.), 38. Van Leeuwen, 3& Van Zyi., 38. WAnE(\V. T.), 22. Walker (^^ . G.). 6, iS, 43- Watts (C. N.). 47. Wertheimer (J.), 32. Whiteford (F. M.), 20. Whitfield (E. E.), 14. Williams (S. E.), 7. Willis (W.), 14. Worth i*»'gton (S. W.), 29. BRADBl'KY. AGNEW. & CO. LD., PRINTFKS, WHITEFRIARS. E.C. [A Catalogue of New Law Works may be obtained gratis upon application to S.dH. STEVENS AND HAYNES' LAW PUBLICATIONS. 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