iiiii iilii \\b iiiii ill 1 :^ -j^ UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A SELECTION OF LEADING CASES ON VARIOUS BRANCHES OF THE LAW: BY JOHN WILLIAM SMITH. THK THIRD AND FOURTH EDITIONS BY SIR JAMES SHAW WILLES & SIR HENRY SINGER KEATING, JUSTICES OF THE COURT OF COMMON PLEAS, THE FIFTH AND SIXTH EDITIONS BY FRED. PHILIP MAUDE & THOS. EDWARD CHITTY, BARRISTERS-AT-LAW, THE SEVENTH, EIGHTH, AND NINTH EDITIONS BY SIR RICHARD HENN COLLINS & ROBERT GEORGE ARBUTHNOT, JUSTICE OF THE HIGH COURT OF JUSTICE. BARRISTER-AT-LAW. THE TENTH EDITION BY THOMAS AYILLES CHITTY, JOHN HERBERT WILLIAMS, LL.B., AND HERBERT CHITTY, M.A., BARRISTERS-AT-LAW. " It Is ever good to ve]'- upon the book at large ; for many times. Compendia sunt dispendia, and Melius est peterc Jontes quaiti scctari rivulon." — 1 Inst. 305 b. IN TWO VOLUMES.— VOL. I. LONDON: SWEET AND MAXWELL, Limited, 3, CHANCERY LANE, l^ato |3ubUslurs anb ^ooksrllcvs. MEREDITH, RAY, & LITTLER, MANCHESTER; HODGES, FWGIS, & CO., Ltd., AND E. PONSONBY, DUBLIN; THACKER, SPINK & CO., CALCUTTA ; CHARLES F. MAXWELL, MELBOURNE & SYDNEY. 1896. LONnoN : BRADBURY, ACNEW, & CO. I,D,, PRINTERS, VVHITEFRIARS. PKEFACE TO THE TENTH EDITION. The first edition of Smith's Leading Cases was published in 1837. An interesting memoir of the author, Mr. John WilHam Smith, who died in 1845, will be found in the first volume of Mr. Samuel Warren's Miscellanies. The Law Magazine (N. S., vol. iv., p. 177) also contains an account of him, written by- Mr. J. G. Phillimore, whose translation of Siderfin's report of Manby v. Scott is given in Vol. IL of this work. The last three editions of the work were edited by the Hon. Sir Eichard Heun Collins, who was raised to the Bench in 1891, and Mr. Eobert George Arbuthnot, whose untimely death occurred in 1890. The present editors, while preserving all the distinctive features of the work and interfering to the least possible extent with the notes of former editors, have endeavoured to make the notes to the present edition as concise as possible, and by some re-arrangement to make the work more methodical. The brackets, which distinguished the notes of later editors, had become so numerous, and, in some instances, so confusing, that the editors considered that the time had come for omitting them altogether. The cases which deal with cognate subjects have now been brought together. The notes to Keech v. Hall and Moss v. Gallimore have been combined. Chandelor v. Lopus has been placed next before Pardey v. Freeman in Vol. II. , and the subject of "deceit " is dealt with entirely in the note to the latter case. PREFACE TO TBE TENTH EDITION. The cases on the Statute of Frauds, Birhnyr v. Darnell, Peter v. Compton, and Wain v. Warlters, will now be found together in Vol. I. The cases on evidence, Price v. Torrington, and Higham v. Ridgway, have been placed next to each other in Vol. II. And Collins v. Blantern and Merryweather v. Nixan are together in Vol. I. A portion of the former notes to Ashhy v. White has been expanded, and now appears in the notes to Fletcher v. Rylands, which has been added as a leading case. The Indexes have been carefully revised, and the Indexes of Cases now contain references to all the reports. Notwithstanding the additions, and the enlargement of the Indexes, the size of the volumes has been somewhat reduced. This desirable end has been attained to some extent by printing the text of the leading cases in smaller type. The editors wish to express their obligation to Mr. G. H. Taylor-Whitehead, Mr. C. G. S. McAlester, and Mr. D. H. Crompton, for their valuable assistance in verifying references to reports, and in preparing the Indexes of Cases for the present edition. T. W. C. J. H. W. H. C. 2Wi JanuAinj, 1896. PREFACE TO THE SECOND EDITION, BY THE AUTHOR. When this work was first published, it was hoped that it would be found to supply, in some degree, a want which was believed to have been felt, although on different occasions, both by the student and by the lawyer occupied in actual practice. The student, when he devotes himself to the perusal of Law, is frequently advised by experienced friends, that he ought early to habituate himself to the perusal of Reports at large, instead of pinning his faith upon the commentaries and abridgments of the treatise writers — " Melius est," says Lord Coke, " petere fontes quam sectari rivulos." — When, however, he attempts to follow this advice, he finds himself astray amid the masses of accumu- lated lore which the Reports present to him, the " aliarum super alias acervatarum legum cumuli ; " he feels his judgment perplexed, his choice distracted, and his immediate wish is, that some guide would direct him to the leading cases, embodied in which he might discover those great principles of Law of which it is necessary that he should render himself thorough master before he can trace with accuracy the numerous ramifications into which those principles are expanded in the surrounding multi- tude of decisions. The lawyer engaged in actual business frequently also feels the want of a portable collection of leading cases, but for a different reason. The leading cases are those with the names of which he is most familiar, which he has most frequently occasion to consult, and which, consequently, he would, if it were practi- cable, willingly carry into court or round the circuit with him. It was therefore thought that this collection might prove of some utility to both the classes of Readers just described. The PREFACE TO THE SECOND EDITION. cases it contains may all, it is believed, be properly denominated " leading cases." Each involves, and is usually cited to establish, some point or principle of real practical importance. In order that the consequences of each may be understood, and its authority estimated as easily as possible, notes have been sub- joined, in which are collected subsequent decisions bearing on the points reported in the text, and in which doctrines having some obvious connection with them are occasionally discussed. This, though of course the least valuable part of the work, has cost its author by far the greatest labour and anxiety ; care has been taken in executing it not to allow the notes to digress so far from the subject-matter of the text, as to distract the reader's mind from that to which they ought to be subsidiary. In perusing them, it will be found that the facts of some of the cases cited are set forth at considerable length, and portions of the judgments transcribed verhatim. This is done only when the case cited is itself of such importance as to merit the appel- lation of a leading case, with an abridgment of which the reader is thus furnished, where it could not, consistently with the plan of the work, be presented to him entire. ■^ ^ ^ ^ ^ J. W. S. 12, King's Bench Walk, Fch. 28, 1841, LIST OF CASES REPORTED IN VOLUME 1. Armory v. Delamirie page [Title against wrong-doer — Master and servant'] .... 34S AsHBY V. White [ Uhi jus ibi remedium] ..... BiRKMYR V. Darnell [Guarantee — Statute of Frauds] .... Calye's Case [Innkeeper's liability and lien] .... Garter v. Boehm [Insurance — Concealment of facts — Broker's opiiiion] CoGGS V. Bernard [Bailments — Gratuitous undertakings] Collins v. Blantern [Illegality of bond pleadable] ....... Crepps v. Burden [Actions against justices — Several convictions for one offence — Smn mary convictions] . Cumber v. Wane [Accord and satisfaction] Dumpor's Case [Conditions not to assign loithout licence — Forfeiture] . Fletcher v. Rylands [" Sic utere tuo ut alienum non Uedas"] ..... Keech v. Hall [Mortgagor's tenant by demise after mortgage] .... Lampleigh v. Brathwait [Consideration — Request] . LiCKBARRow V. Mason [Stoppage in transitu — Bills of lading —Factors] Master v. Miller [Alteration of instrument] . . .... 23T 287 115 4V4 167 355 632 325 31 789 494 136 674 747 LIST OF CASES REPORTED IN VOLUME I. Merryweather v. Nixan page [No contribution betiveen joint tort-feasors] . .... 383 Miller v. Race [Negotiable instrtiment] 447 Mitchel v. Reynolds [Restraint of trade] 391 Moss V. Gallimore [Alortgagee's right to rent] ........ 497 MOSTYN V. FaBRIGAS [Venue — Action against Governor of Colony for injury done there — Foreign cause of coction] ......... 57? Peter v. Compton [Contracts not performct,ble within year] 303 Scott v. Shepherd [Squib-throwing — Trespass and case] 43S Semayne's Case [" A man's house is his castle " — Sheriff] 99 Simpson v. Hartopp [Things privileged from distress] ..... .421 Six Carpenters' Case [Trespass ab initio] .......... 127 Spencer's Case [Covenants running toith land] ....... 52 Twyne's Case [Fraudulent gifts and conveyances] 1 Wain v. Warlters [Guarantee — What is sufficient signature under Statute of Frauds] . 310 Whitcomb v. Whiting [Statute of Limitations — Acknowledgment by co-contractor] . . . 561 Wioglesworth v. Uallison [Usages — Construction of written contracts by reference thereto]. . 528 Note. — Cluindelor v. Lopus, and Price v. Earl of Torrington, which were formerly jiriiited in this volume., will now be found in vol. ii. Waugh v. Carver ha.4 been omitted from this edition, as the note became of less importance after the I'aitiicisliii) Act, 1890 ; and Fletcher v. Rglands has been inserted instead. TABLE OF CASES TO VOLUME L A. PAGE Abbot v. Rogers, 16 C. B. 277 ; 24 L. J. C. P. 158 ; 1 Jur. N. S. 804 ; 3 C. L. R. 862 ; 3 W. R. 522 373 . 1;. Smith, 2 W. Bl. 947 152 Abbott V. Abbott, 29 L. J. Mat. 57 621 V. Bates, 43 L. J. C. P. 150 ; 30 L. T. 99 ; 33 Id. 491 ; 22 W. R. 488 ; 24 Id. 101 559 V. Macfie, 2 H. & C. 744 ; 33 L. J. Ex. 177 ; 10 Jur. N. S. 682 ; 9 L. T. 513 ; 12 W. R. 315 275 Abdv, Re, (1895) 1 Ch. 455; 64 L. J. Ch. 465; 12 R. ; 43 W. R. 323 368 Abouloff*?;. Oppenheimer, 10 Q. B. D. 295 ; 52 L. J. Q. B. 1 ; 47 L. T. 325 ; 30 W. R. 429 ; 31 Id. 57 608 Abrahams v. Deakin, (1891) 1 Q. B. 516 ; 60 L. J. Q. B. 238 ; 63 L. T. 690 ; 39 W. R. 183 ; 55 J. P. 212 352 Abrath v. N. E. R. Co., 11 Q. B. D. 440 ; 11 App. Cas. 247 ; 52 L. J. Q. B. 352, 620 ; 49 L. T. 618 ; 32 W. R. 50 ; 47 J. P. 692 . . 261 Acatos V. Burns, 3 Ex. D. 282 ; 47 L. J. Ex. 566 ; 26 W. R. 624 . 205 Ackroyd v. Smithies, 54 L. T. 130 ; 50 J. P. 538 . . . .332 Acraman, Ex j)., 31 L. J. Ch. 741 ; 7 L. T. 84 . . . . . 305 Acroyd v. Smith, 10 C. B. 164 ; 19 L. J. C. P. 315 ; 14 Jur. 1049 . 246 Acton V. Blundell, 12 M. & W. 324 ; 13 L. J. Ex. 289 . . 273, 812 Adames v. Halk'tt, 6 Eq. 468 ; 18 L. T. 789 15 Adams v. Clutterbuck, 10 Q. B. D. 403 ; 52 L. J. Q. B. 607 ; 48 L.T. 614 ; 31 W. R. 723 609, 622 V. Grane, 3 Tyrwh. 326 ; 1 C. & M. 380 ; 2 L. J. Ex. 105 427, 428 V. L. & Y. R. Co., L. R. 4 C. P. 739 ; 38 L. J. C. P. 277 ; 20 L. T. 850 ; 17 W. R. 884 276 V. Taplins?, 4 Mod. 88 327 V. WardleV, 1 M. & W. 374 ; 2 Gale, 29 ; IT. & G. 620 ; 5 L. J. Ex. 158 554 Adamson, Be, L. R. 3 P. & D. 253 785 V. Jarvis, 4 Bing. 66 ; 12 Moore, 241 . . . . 154, 390 Aga Kurboolie Mahomed v. Tlie Queen, 4 Moo. P. C. 237 . . . 106 Agar V. AtheucTum Ass. Soc, 3 C. B. N. S. 725 ; 27 L. J. C. P. 95 ; 4 Jur. N. S. 211 ; 6 AV. R. 277 379, 380 Agincourt, The, 2 P. D. 239 ; 47 L. J. A. 37 607 Agricultural Co. v. Fitzgerald, 16 Q. B. 432 ; 20 L. J. Q. B. 244 ; 15 Jur. 489 787 Aitkenheadt). Blades, 5 Taunt. 198; 1 Marsh. 17 . . . 131,132 Alabaster v. Harness, (1894)2 Q. B. 897; (1895) 1 Q. B. 339 ; 64 L. J. Q. B. 76 ; 71 L. T. 740 ; 43 W. R. 196 ; 14 R. . . . 371 Alchin V. Hopkins, 1 B. N. C. 99 ; 4 M. & Scott, 615 ; 3 L. J. C. P. 272 334 Alchorne v. Gonime, 2 Bing. 54 ; 9 Moore, 130 505 Alcock V. Leeuw, C. & E. 98 547, 560 V. Smith, (1892) 1 Ch. 238 ; 61 L. J. Ch. 161 ; 65 L. T. 335 ; 66 Id. 126 611 Alderson v. Lungdale, 3 B. & Ad. 660 781 Aldin V. Latimer, (1894) 2 Ch. 437 ; 63 L. J. Ch. 601 ; 71 L. T. 119 ; 42 W. R. 553 ; 8 R. 352 161 TABLE OF CASES TAQE Alclous V. Cornwell, L. R. 3 Q. B. 573 ; 37 L. J. Q. B. 201 ; 16 W. R. 1045 783 Aldred's Case, 9 Co. Rep. 57 b 795, 796, 800 Aldridge v. Aldridoe, 13 P. D. 210 ; 58 L. J. P. 8 ; 59 L. T. 896 ; 37 W. R. 240 367 V. G. W. R. Co., 3 M. & Gr. 515 ; 4 Scott. N. R. 156 ; 1 Dowi. N. S. 247 825 V. , 15 C. B. N. S. 582 ; 33 L. J. C. P. 161 200, 216 V. Haines, 2 B. & Ad. 395 641 Alexander v. Campbell, 41 L. J. Ch. 478 ; 27 L. T. 25 . . . 341 V. Vanderzee, L. R. 7 C. P. 630 ; 20 W. R. 871 . . . 541 V. Vane, 1 M. & W. 511 ; 2 Gale, 57 ; 1 T. & G. 865 ; 5 L. J. Ex. 187 147 Alhambra, The, 6 P. D. 68 ; 49 L. J. A. 73 ; 50 Id. 36 ; 43 L. T. 31 ; 4 Asp. M. C. 334, 410 ; 29 W. R. 215, 655 ... . 554, 555 Alivon V. Furnival, 4 Tyr. 751 ; 1 C. M. & R. 277 ; 3 Dowl 202 ; 3 L. J. Ex. 241 616 Allan V. Sundius, 1 H. & C. 123 ; 31 L. J. Ex. 307 ; 6 L. T. 359 ; 10 W. R. 648 543, 558 AUbutt V. Medical Council, 23 Q. B. D. 400 ; 58 L. J. Q. B 606 ; 61 L. T. 585 ; 37 W. R. 771 262 Allday v. G. W. R. Co., 34 L. J. Q. B. 5 ; 5 B. & S. 903 ; 11 Jur. N. S. 12 ; 11 L. T. 267 ; 13 W. R. 43 213, 216 AUen V. Coltart, 31 AV. R. 841 ; 11 Q. B. D. 782 ; 52 L. J. Q. B. 686 ; 48 L. T. 944 740 V. Havward, 7 Q. B. 960 ; 15 L. J. Q. B. 99 ; 10 Jur. 92 . . 814 V. Jac"kson, 1 Ch. D. 399 ; 45 L. J. Ch. 310 ; 33 L. T. 713 ; 24 W. R. 306 367 V. Kemble, 6 Moo. P. C. 314 ; 13 Jur. 287 ... . 611 V. L. & S. W. R. Co., L. R. 6 Q. B. 65 ; 40 L. J. Q. B. 55 ; 23 L. T. 612 ; 19 W. R. 127 ; 11 Cox, C. C. 621 . . . 352 V. Milner, 2 Tyr. 113 ; 2 C. & J. 47 ; 1 L. J. Ex. 7 . . . 325 V. Sniitli, 12 C. B. N. S. 638 ; 31 L. J. C. P. 306 ; 9 Jur. N. S. 230, 1284 ; 6 L. T. 459 ; 10 W. R. 646 125 Alliance Bank of Simla v. Carey, 5 C. P. D. 429 ; 49 L. J. C. P. 781 ; 29 W. R. 306 ; 44 J. P. 735 616 Allies I'. Piobvn, 5 Tyr. 1079 ; 2 C. M. & R. 408 ; 4 Dowl. 153 ; 4 L. J. Ex. 227 336 Alli)ort V. Nutt, 1 C. B. 974 ; 3 D. & L. 233 ; 14 L. J. C. P. 272 ; 9 Jur. 900 386 Allsop V. AUsop, 5 H. & N. 534 ; 29 L. J. Ex. 315 ; 6 Jur. N. S. 433 ; 2 L. T. 290 ; 8 W. R. 449 280 All<(^l.p r. Wheatcroft, 15 Eq. 59 ; 42 L. J. Ch. 12 ; 27 L. T. 372 ; 21 \V. R. 102 411 Abler V. George, 1 Camp. 392 328 Alst(jn, Ex J}., 4 Ch. 168 ; 19 L. T. 542 ; 17 VV. R. 266 . . . 737 V. Herring, 11 Exch. 822 ; 25 L. J. Ex. 177 . . . . 204 Alton V. Harrison, 4 Ch. 622 ; 38 L. J. Ch. 669 ; 20 L. T. 1001 ; 17 W. R. 1034 17 V. Mid. W. Co., 19 C. B. N. S. 213 ; .34 L. J. C. P. 292 ; 11 Jur. N. S. 672 ; 12 L. T. 703; 13 W. R. 918 202 Ainericaii ('onceiitiated Must Co. v. Hendry, 68 L. T. 742 ; 62 L. J. g. B. .388 ; ol J. I'. 521, 788; 5 R. 331 106 AnioH ,). Siuitli, 1 H. & C. 238 ; 31 L. J. Ex. 423 ; 7 L. T. 66 ; 10 W. U. 759 567 Ancoiia r. Marks. 7 II. .'t N. 686 ; 31 L J. Ex. 163 ; 8 Jur. N. S. 516 ; 5 L. T. 753 ; 10 W. I i. 251 350,473 Aiid.TSon V. (;onie,(18!)5) 1 (,). ]',. 668 ; 71 L. T. .382 ; 14 R. . 265, 631 t». Midlmid l{. ( 'o., .30 1.. J. Q. V,. 94 ; 3 E. & E. 614 ; 7 Jur. N. S. 411 ; 3 L. T. H09 . . . . 516 V. Opi.inlicimrT, 5 g. B. D. 602 ; 49 L. J. Q. B. 456, 708 ; 44 J. V. 697 824 TO VOLUME I. I'AOE 560 508 49 384 Anderson V. Pitcher, 'l B. & P. 164 ; 3 Esp. 124; 1 Stark. 262 ; 5 11. R. 565 V. Ratclitte, E. B. & E. 806, 819 ; 28 L. J. Q. B. 32 ; 29 Id. 128 ; 5 Jur. N. S. 704 ; 6 Id. 578 ; 1 L. T. 487 ; 6 W. R. 655 ; 8 Id. 283 371, Anderton, lie, 45 Cli. D. 476 ; 59 L. J. Oh. 765 ; 63 L. T. 332 ; 39 W. R. 44 Andrde v. Fletcher, 3 T. R. 266 ; 2 Id. 161 ; 1 R. R. 701 . Andrew v. Aitken, 22 Ch. D. 218 ; 52 L. J. Ch. 294 ; 48 L. T. 148 ; 31 W. R. 425 87 V. Boughay, Dyer, 75 ....... . 337 V. Hancock, 1 B. & B. 37 ; 3 Moore, 278 .. . 163, 164 V. Pearce, 1 B. & P. N. R. 158 96 Andrews v. Nott Bower, (1895) 1 Q. B. 888 ; 64 L. J. Q. B. 536 ; 72 L. T. 530 ; 43 W. R. 582 ; 14 R 262 Ane;us v. McLachlau, 23 Ch. D. 330 ; 52 L. J. Ch. 587 ; 48 L. T. 863 ; il W. R. 641 123, 126 Anon., 1 B. & Ad. 382 653 , Godb. 109 348 , 6 ]\Iod. 105 ; LofFt, 390 106 , 1^ Mod. 564 192, 194 , Moore, 21 47 , Moore, 159 67 , 1 Salk. 126 (5) ; 1 Ld. Raym. 738 449 , 1 Salk. 280 304 , 2 Salk. 522 .. . 191 • , Year Book, 7 H. 4, Hil. 34 b 348 Anscomb v. Shore, 1 Camp. 285 ; 1 Tannt. 261 ; 10 R. R. 686 . .130 Anthony v. Haney.s, 8 Bing. 186 ; 1 AIoo. & S. 300 ; 1 L. J. C. P. 81 135 Apharry v. Bodinghani, Cro. Eliz. 350 22 Aplm V. Pomitt.,'(1893) 2 Q. B. 57 ; 62 L. J. M. C. 144 ; 69 L. T. 433 ; 42 W. R. 95 ; 57 J. P. 456 432 Apollo, The, (1891) A. C. 499 ; 61 L. J. A. 25 ; 60 L. T. 112 ; 61 Id. 286 ; 65 Id. 590 ; 55 J. P. 820 ; 6 Asp. M. C. 356, 402 . . .352 Apothecaries' Co", v. Jones, (1893) 1 Q. B. 89 ; 67 L. T. 677 ; 41 W. R. 267 : 57 J. P. 56 ; 17 Cox, C. C. 588 ; 5 R. 101 . . . . 640 Appleby v. Franklin, 17 Q. B. D. 93 ; 55 L. J. Q. B. 129 ; 54 L. T. 135 ;' 34 W. R. 231 ; 50 J. P. 359 279 Appleton V. Braybrook, 2 Stark. 6 ; 6 M. & S. 34 . . . .621 Archer v. Bank of England, 2 Doiigl. 637 457 V. Mar.sh, 6 A. & E. 959 ; ' 2 N. & P. 562 ; W. W. & D. 641 405, 406, 414 Arcot (Nabob of) v. East India Co., 3 Br. C. C. 291 ; 4 Id. 180 ; 1 Yes. 371 ; 2 Yes. 56 626 . 740 Argentina, The, L. R. 1 A. & E. 370 ; 16 L. T. 743 . Arkwright v. Cantrell, 7 A. & E. 565 ; 2 N. & P. 582 ; 7 63 ; 2 Jur. 11 Arlett V. Ellis, 7 B. & C. 346 ; 9 Id. 671 ; 9 D. & R. 897 Armistead v. Wilde, 17 Q. B. 261 ; 15 Jur. 1010 ; 20 L. J Armory v. Delamirie, 1 Str. 504 ..... Armstrong v. L. & Y. R. Co., L. R. 10 Ex. 47 . Arnsby v. Woodward, 6 B. & C. 519 ; 9 D. & R. 536 . Artola Hermanos, Re, 24 Q. B. D. 640 ; 59 L. J. Q. B. 254 781 ; 7 M. B. R. 80 Ash V. Dawnay, 8 Exch. 237 ; 22 L. J. Ex. 59 . Ashbury Co. v. Riche. See Riche v. Ashoury. Ashby V. James, 11 M. & W. 542 ; 12 L. J. Ex. 295 . AVhite, 2 Ld. Raym. 938 ; 3 Id. 320 ; 1 Salk. 19 ; L. J. Q. B. Q. B. 524. . 343, ; 62 L. T. 3 Id. 17 Holt, 524 ; 6 Mod. 45 ; 1 Bro. P. C. 62 ; 14 How. St. Tr. 695 Ashcroft V. Bourne, 3 B. & Ad. 684 ; 1 L. J. K. B. 209 368 134 121 449 277 42 607 132 566 231 641 TABLE OF CASES PAUE Ashdown v. Curtis, 31 L.J. M. C. 216 ; 8 Jur. N. S. 511 ; G L. T. 331 ; 10 W. R. G67 671 Ashendon v. L. B. & S. C. R. Co., 5 Ex. U. 190 ; 42 L. T. 586 ; 28 W. R. 511 ; 44 J. P. 203 216 Ashford V. Redford, L. R. 9 C. P. 20 ; 43 L. J. C. P. 57 . . . 541 Ashley r. Harrison, 1 Esp. 48 ; 1 Peake, 256 ; 3 R. R. 686 . . 280 Ashpitel V. Br van, 32 L. J. Q. B. 91 ; 33 Id. 328 ; 3 B. & S. 474 ; 5 Id. 723 ; 9' Jur. N. S. 791 ; 7 L. T. 706 ; 11 Id. 221 ; 11 W. R. 279 ; 12 Id. 1082 351 Ashton V. Heaven, 2 Esp. 533 ; 5 R. R. 750 200 Aspden v. Seddon, 1 Ex. D. 496 ; 46 L. J. Ex. 353 ; 34 L. T. 906 ; 24 W. R. 828 81) Aspinall v. Sutton, (1894) 2 Q. B. 349 ; 63 L. J. M. C. 205 ; 58 J. P. 622 ; 10 R. 465 671 Astley V. Reynolds, 2 Str. 916 326 Athenaium Soc, Ee, 4 K. & J. 549 ; 27 L. J. Ch. 829 ; 4 Jur. N. S. 1140 ; 6 W. R. 779 380 Atkins V. Banwell, 2 East, 504 143 Atkinson v. Denbv, 6 H. & N. 778 ; 7 Id. 934 ; 30 L. J. Ex. 361 ; 31 Id.'362 ; 7 Jur. N. S. 705 ; 8 Id. 1012 ; 4 L. T. 252 ; 7 Id. 93 ; 9 W. R. 539 ; 10 Id. 389 . . . . 385 V. Hawdon, 2 A. & E. 628 ; 4 N. & M. 409 ; 4 L. J. K. B. 85 781 V. Maling, 2 T. R. 462 ; 1 R. R. 524 15 V. Newcastle Waterworks Co., 2 Ex. D. 441 ; L. R. 6 Ex. 404 ; 46 L. J. Ex. 775 ; 36 L. T. 761 ; 20 W. R. 35 ; 25 Id. 794 286 V. Stevens, 7 Exch. 567 ; 21 L. J. Ex. 329 . . . . 219 Atkyns r. Kinnier, 4 Excli. 776 ; 19 L. J. Ex. 132 . . . .404 Atlee v. Backhouse, 3 M. & W. 633 ; 1 H. & H. 135 ; 7 L. J. Ex. 234 331 Attack V. Bramwell, 3 B. & S. 520 ; 32 L. J. Q. B. 146 ; 7 L. T. 740 ; 9 Jur. N. S. 892 ; 11 W. R. 309 132 Attoe V. Hemmings, 2 BuLt. 281 60, 68 Att.-Gen. v. Bouwens, 4 M. & W. 171 ; 1 H. & H. 319 ; 7 L. J. Ex. 297 455, 462, 468 V. Churchill, 8 M. & W. 171 ; 9 Dow I. 772 ; 10 L. J. Ex. 314; 5 Jur. 803 600 V. Conduit Co., (1895) 1 Q. B. 301 ; 64 L. J. Q. B. 207 ; 43 W. R. 366 ; 71 L. T. 771 ; 15 R 271 ^— to the Prince of Wales v. Crossnian, L. R. 1 Ex. 381 ; 4 H. & C. 5()8 ; 35 L. J. Ex. 215 ; 12 Jur. N. S. 712 ; 14 L. T. 856 ; 14 W. R. 996 600 V. Diniond, 1 C. & J. 356 ; 1 Tyr. 243 . . . .468 of Victoria v. Ettershank, L. R! 6 P. C. 354 ; 44 L. J. P. C. 65 37, 43 V. G. E. R. Co., 5 App. Cas. 473 ; 49 L. J. Ch. 545 ; 42 L. T. 810 ; 28 W. R. 769 ; 44 J. P. 648 ... 378, 381 r. G. N. R. Co., 1 Drew. & Sni. 154 ; 29 L. J. Ch. 794 ; 2 L. T. 053 ; 8 W. R. 556 378 r.IIolliiigworlh,2H.&N.416 ; 27L.J.E.X. 102; 5 W. R. 684 377 t'. J lop.-, 1 C. M. cSi R. 530 ; 2 CI. & F. 84 ; 8 Bligh, 44 ; 4 'l"vr. 878 468 V. Ja.o. I'. C. 35 ; 5 Moo. Ind. A])p. 1 ; 13 Jur. 915 ... 469 N. S. \Val<'S V. Ovvslon, 4 Aj^p. Cas. 270 ; 48 li. J. P. C, 25 ; 40 L. 'I\ 500 352 TO VOLUME I. PAGE Bank of Scotland v. Dominion Bank, (1891) A. C. 592 .. . 785 Banks v. C.Vossland, L. R. 10 Q. B. 97 ; 44 L. J. M. C. 8 ; 32 L. T. 226 ; 23 W. R. 414 301 V. Goodwill, 3 B. & S. 548 ; 32 L. J. M. C. 87 ; 9 Jiir. N. S. 891 ; 7L. T. 740; 11 W. R. 309 671 Banner, Ex p., 17 Cli. D. 480 ; 51 L. J. Cli. 300 ; 44 L. T. 908 ; 30 W. R. 24 331 V. Berridge, 18 Cli. D. 254 ; 50 L. J. Cli. 630 ; 44 L. T. 680 ; 29 W. R. 844 570 Bannister v. Hyde, 2 E. & E. 627 ; 29 L. J. Q. B. 141 ; 1 L. T. 438 ; 6 Jur. N. S. 'l71 106 Banque Jacques-Cartier v. Banque D'Ejiargne, 13 App. Cas. Ill ; 57 L. J. P. C. 42 351 Barber v. Brown, 1 C. B. N. S. 121 ; 26 L. J. C. P. 41 ; 3 Jiir. N. S. 18 ; 5 W. R. 79 142, 165 1). Lesiter, 7 C. B. N. S. 175 ; 29 L. J. C. P. 161 ; 6 Jur. N. S. 654 261 V. Meverstein, L. R. 4 H. L. 317 ; L. R. 2 C. P. 38, 661 ; 36 L. J. C. P. 48, 289 ; 39 Id. 187 ; 15 L. T. 355 ; 16 Id. 569 ; 22 Id. 808 ; 15 W. R. 173, 998 ; 18 Id. 1041 . . 741 V. Nottingham & Grantham R. Co., 15 C. B. N. S. 726 ; 33 L. J..C. P. 193 ; 9 L. T. 829 ; 12 W. R. 376 801 Barbour v. S. E. R. Co., 34 L. T. 67 205 Barclay v. Pearson, (1893) 2 Ch. 154 ; 62 L. J. Ch. 636 ; 68 L. T. 709 ; 42 W. R. 74 ; 3 R. 388 369 V. Raine, 1 S. & Stu. 449 79-81 Barker v. Green, 2 Bing. 317 . . . . . . . . 273 Barkworth v. Young, 4 Drew. 1 ; 26 L. J. Ch. 153 ; 3 Jur. K S. 34 ; 5 W. E. 156 . ' 300 Barling v. Bishopp, 29 Beav. 417 ; 6 Jur. N. S. 812 ; 2 L. T. 651 ; 8 W. R. 631 20 Barnard, i?«, 56 L. T. 9 608, 609 V. Godscall, Cro. Jac. 309 69 Barnardiston v. Some, 2 Lev. 114 ; 6 Howell St. Tr. 1063 ; 3 Keb. • 365, 389 236, 257, 283, 631 Barnett v. Guilford, 11 Exch. 19 ; 24 L. J. Ex. 281 ; 1 Jur. N. S. 1142 ; 3 W. R. 406 496, 508 Barrack v. M'Cullock, 3 K. & J. 110 ; 26 L. J. Ch. 105 ; 3 Jur. N. S. 180 ; 5 W. R. 38 23 Barratt v. Price, 9 Bing. 566 ; 2 M. & Scott, 634 ; 2 L. J. C. P. 56 . 112 Barrett v. Rolph, 14 M. & W. 348 ; 14 L. J. Ex. 308 ... 96, 97 Barrow Ex p., 6 Ch. D. 783 ; 46 L. J. Bk. 71 ; 36 L. T. 325 ; 25 W. R. 466 727 , 18 Ch. D. 464 ; 50 L. J. Ch. 821 ; 45 L. T. 197 . . 144 V. Coles, 3 Camp. 92 ; 13 R. R, 763 737 V. Dvster, 13 Q. B. D. 635 ; 51 L. T. 573 ; 33 W. R. 199 . 558 V. Isaacs, (1891) 1 Q. B. 417 ; 60 L. J. Q. B. 179 ; 64 L. T. 686 ; 39 W. R. 338 ; 55 J. P. 517 . . . . 49, 51 V. Wood, unre])orted 398 Mutual V. Ashljurner, 54 L. J. Q. B. 377 ; 52 L. T. 898 , . 374 Barry v. Arnaud, 10 A. & E. 646 ; 2 P. & D. 633 . , . . 231 V. Robinson, 1 B. & P. N. R. 293 414 Barter, Exp., 26 Ch. D. 510; 53 L. J. Ch. 802 ; 51 L. T. 811 ; 32 W. R. 809 370 Bai:tlett V. Pentland, 10 B. & C. 760 548 V. Vinor, Carth. 251 . 373 Barton v. Bricknell, 13 Q. B. 393 ; 20 L. J. M. C. 1 ; 15 Jur. 668 . 643 V. Vanheythuigseu, 11 Hare, 126 ; 1 W. R. 429 . . . 30 Bartonshill Co. v. Reid, 3 Mac(i. 266 ; 4 Jur. N, S. 767 ; 6 W. R. 664 351, 352 Barwis v. Kej^pel, 2 Wils. 314 630 TABLE OF CASES Basebe v. Matthews, L. R. 2 C. P. 684 ; 36 L. J. M. C. 93 ; 16 L. T. 417 ; 15 W. R 839 261 Basteu v. Carevv, 3 B. & C. 649 ; 5 D. & R. 558 . . . 641, 649, 654 Batard v. Hawes, 2 E. & B. 287 ; 22 L. J. Q. B. 443 ; 17 Jur. 1154 . 152 Batcliellor v. Lawrence, 9 C. B. N. S. 543 ; 30 L. J. C. P. 39 ; 6 Jur. N. S. 1306 ; 3 L. T. 508 ; 9W. R. 373 183 Batcheloure v. Gage, 2 Sir W. Jones, 223 70 Batenian v. Ashton-under-Lyne, 3 H. & N. 323 ; 27 L. J. Ex. 458 ; 6 W. R. 829 .378 V. Bluck, 18 Q. B. 870 ; 21 L. J, Q. B. 406 ; 17 Jur. 386 . 276 I- Freston, 30 L. J. Q. B. 133 ; 7 Jur. N. S. 391 ; 3 L. T. 806; 9 W. R. 311 114 V Mid- Wales R. Co., L. R. 1 C. P. 499 ; 35 L. J. C. P. 205 ; 12 Jur. N. S. 453 ; 14 W. R. 672 . . . . 467 V. Phillips, 15 East, 272 ; 4 Taunt. 157 . . 293, 297, 300 V. Pinder, 3 Q. B. 574 ; 2 G. & D. 790 ; 11 L. J. Q. B. 281 ; 6 Jur. 714 564 Bates V. Hewitt, L. R. 2 Q. B. 595 ; 36 L. J. Q. B. 282 ; 15 W. R. 1172 478 Bath's Case, 8 Ch. D. 334 ; 47 L. J. Ch. 601 ; 38 L. T. 267 ; 26 W. R. 441 379 Bathe v. Taylor, 15 East, 412 783 Batson v. Eionovan, 4 B. & Aid. 21 202, 205 V Kin", 4 H. & N. 739 ; 28 L. J. Ex. 327 ... . 290 Batten, Be, 22 Q. B. D. 685 ; 58 L. J. Q. B. 333 ; 60 L. T. 271 ; 37 W. R. 303, 499 784 Battersbee v. Farrington, 1 Swanst. 106 ; 1 Wils. 88 . . . .20 Battersey's Case, Winch, 48 155 Batthvany v. Walford, 36 Ch. D. 269 ; 56 L. J. Ch. 881 ; 57 L. T. 206 ; 35 W. R. 814 603, 607 Baxeiidale v. Bennett, 3 Q. B. D. 525 ; 47 L. J. C. P. 624 ; 40 L. T. 23 ; 26 W. R. 899 472 r. E. Counties R. Co., 4 C. B. N. S. 63 ; 27 L. J. C. P. 137 203 V G. E. R. Co., L. R. 4 Q. B. 244 ; 38 L. J. Q. B. 137 ; 17 W. R. 412 207, 210, 218 r. L. C. & D. R. Co., L. R. 10 E.x. 35 ; 44 L. J. Ex. 20 ; 32 L. T. 330 ; 23 W. R. 167 150 ,;. L. & S. W. R. Co., L. R. 1 Ex. 137 ; 4 H. & C. 130 ; 35 L. J. Ex. 108 ; 12 Jur. N. S. 274 ; 14 L. T. 26 ; 14 W. R. 458 203 Bayley v. Ashton, 12 A. & E. 493 ; 4 P. & D. 204 ; 9 L. J. Q. B. 376; 4 Jur. 890 569 V. Iloman, 3 B. N. C. 915 ; 3 Scott, 384 ; 6 L. J. C. P. 309 336, 339 V M. S. & L. R. Co., L. R. 8 C. P. 148 ; 7 Id. 415 ; 41 L. J. C. P. 278 ; 42 Id. 78 ; 28 L. T. 366 .... 351, 352 BayliiFe v. Butterwurth, 1 Exch. 425 ; 17 L. J. Ex.78 ; 5 Railw. Cas. 548, 549 9,h2 ........ Baylis v. Le" Gros, 4 c". B. N. S. 537 ; 2 Id. 316 ; 4 Jur. N V. Liiitott, L. R. 8 C. P. 345 ; 42 L. J. C. P. 119 ; (ifiO V. Strickland, 1 M. & Gr. 591 ; 1 Scott, N. R. 540 M. C. 61 ; 4 Jur. 823 .... Bavne v. Stone, 4 Esj). 13 Bavnes V. Lloy.l, (1H95) 1 Q. B. 820 ; (1805) 2 Q. B. 61( 0. B. 411 ; 72 L. T. 505 ; 73 Id. 250; 43 W. R. 524 Bayiiton v. Morgan, 21 g. B. I). J 01 ; 22 Id. 74 ; 57 L. J. 58 Id. 139 ; 59 l>. T. 478 ; 37 W. R. 148 Bayspoohr V. (Collins, 6 Cli. 228 ; 40 L. J. Ch. 289 ; 22 L. W. R. 303 Bazeley ?;. Ford.M, L. i{. 3 C^ B. 559 ; 37 L. .1. Q. B. 237 756'; 9 B. i^ S. 599 S. 513 . 43 28 L. T. . 223 10 L. J. . 642 . 152 ; 64 L. J. . 101, 496 Q. B. 165 ; . 70 :\ 050 ; 19 . 30 18 L. T. . 145 TO VOLUME I. PAGE Beal V. S. Devon K. Co., 5 H. & N. 875 ; 3 H. & C. 337 ; 29 L. J. Ex. 441; 2 L. T. G65 ; 11 Id. 184; 8 \V. R. 651; 12 Id. 11 15 180, 213, 216 Beard v. Knight, 8 E. & B. 865 ; 27 L. J. Q. B. 359 ; 6 W. R. 226 . 432 V. Westcott, 5 B. & Aid. 801 ; 5 Taunt. 393 . . . .418 Beardman v. Wilson, L. R. 4 C. P. 57 ; 38 L. J. C. P. 91 ; 19 L. T. 282 ; 17 VV. R. 54 46, 98 Beardmore v. Tredwell, 3 Gill'. 683 ; 31 L. J. Cli. 892 ; 9 Jur. N. S. 272 ; 7 L. T. 207 826 Beauce v. Muter, 5 Moo. P. C. 69 618 Beauchamp v. Powley, 1 M. & Rob. 38 183, 225 Beaumont v. Reeve, 8 Q. B. 483 ; 15 L. J. Q. B. 141 ; 10 Jur. 284 144, 376 Beavan v. Oxford, 6 De G. M. & G. 507 ; 25 L. J. Cli. 299 ; 2 Jur. N. S. 121 ; 4 W. E. 275 26 Beck V. Denbi^di, 29 L. J. Cli. 273 ; 2 L. T. 154 ; 8 W. R. 392 . . 427 Becher v. G. E. R. Co., L. R. 5 Q. B. 241 ; 39 L. J. Q. B. 122 ; 22 L. T. 299 ; 18 W. R. 627 202 Beckford v. Crutwell, 1 M. & Rob. 187 ; 5 C. & P. 242 . . . 413 Beckwaite v. Nalgrove, 3 Taunt. 41 485 Beckwith v. CorriiU, 3 Bing. 444 ; 11 Moore, 335 ; 2 C. & P. 261 . 469 Beddall V. Maitland, 17 Ch. D. 174 ; 50 L. J. Ch. 401 ; 44 L. T. 248 ; 29 W. R. 484 134 Bedford v. British Museum, 2 M. & K. 552 . . . . 84, 88 Beely v. Parrv, 3 Lev. 154 70 Beer v. London Co., 20 Ec^. 412 ; 32 L. T. 715 . . . . 321, 322 Beeston v. Beeston, 1 Ex. D. 13 ; 45 L. J. Ex. 230 ; 33 L. T. 700 ; 24 W. R. 96 . 38o Besrl)ie V. Phosphate Co., L. R. 10 Q. B. 491 ; 1 Q. B. D. 679 ; 44 L. J. Q. B. 233 ; 33 L. T. 470 ; 35 Id. 350 ; 24 W. R. 115 ; 25 Id. 85 387 Behrens v. G. N. R. Co., 6 H. & N. 366 ; 7 Id. 950 ; 30 L. J. Ex. 153 ; 31 Id. 299 ; 8 Jur. N. S. 567 ; 3 L. T. 863 ; 8 Id. 328 ; 9 W. R. 338 ; 10 Id. 389 207 Belclier v. Collins, unreported ........ 495 Belfast & B. R. Co. v. Keys, 9 H. L. C. 556 ; 8 Jur. N. S. 367 ; 4 L. T. 841 ; 9 W. R. 793 201, 204 BeU V. Bucklev, 11 Exch. 631 ; 25 L. J. Ex. 163 ; 4 W. R. 251 . 326 V. Frankis, 4 M. & Gr. 446 ; 5 Scott, N. R. 460 ; 11 L. J. C. P. 300 354 Bellamont's Case, 2 Salk. 625 581, 588 Bellamy v. Debenham, 45 Ch. D. 481 ; (1891) 1 Ch. 412 ; 60 L. J. Ch. 166 ; 39 W. R. 257 ; 63 L. T. 220 ; 64 Id. 478 . . 302 V. Majoribanks, 7 Exch. 389 ; 21 L. J. Ex. 70 ; 16 Jiu\ 106. 458 Belshaw v. Bush, 11 C. B. 191 ; 22 L. J. C. P. 24 ; 17 Jur. 67 . . 338 Benett v. P. & 0. Co., 6 C. B. 775 ; 6 D. & L. 387 ; 18 L. J. C. P. 85 ; 13 Jur. 347 199 Benham v. Keane, 31 L. J. Ch. 129 ; 8 Jur. N. S. 604 ; 5 L. T. 439 ; 10 W. R. 67 26 Bennett v. Bayes, 5 H. & N. 391 ; 29 L. J. Ex. 224 ; 2 L. T. 156 ; 8 W. R. 320 130, 131 V. Brumfit, L. R. 3 C. P. 28 ; 37 L. J. C. P. 25 ; 17 L. T. 213 ; 16 W. R. 131 323 r. Herring, 3 C. B. N. S. 370 ; 6 W. R. 37 .... 45 r. Mellor, 5 T. R. 273 ; 2 R. R. 593 124 Bennington v. Taylor, 2 Lutw. 1517 531 Bennion v. Davison, 3 M. & W. 179 ; 1 H. & H. 46 ; 7 L. J. Ex. 116 137 Bentham v. Cooper, 5 M. & W. 621 ; 9 L. J. Ex. 114 . . .294 Bentlev v. Hoie, 1 Lev. 86 236 Bentinck v. London Bank, (1893) 2 Ch. 120 ; 62 L. J. Ch. 358 ; 68 L. T. 315 ; 42 W. R. 140 ; 3 R. 120 ... . 462, 466, 471 S.L.C. VOL. I. 6 TABLE OF CASES PAOK Benvvell v. Inns, 24 Beav. 307 ; 26 L. J. Ch. 663 . . 403, 414 Bei^heim r. G. E. E. Co., 3 C. P. D. 221 ; 47 L. J. C. P. 318 ; 38 L. T. 160 ; 26 W. R. 301 201 Berkley v. Shal'to, 15 C. B. N. S. 79 270 Bernstein v. Baxendale, 6 C. B. N. S. 251 ; 28 L. J. C. P. 265 ; 5 Jur. N. S. 1056 ; 7 W. R. 396 206 Bernina, The, 12 P. D. 58 ; 11 Id. 31 ; 13 App. Cas. 1 ; 56 L. J. A. 17 ; 57 Id. 65 ; 56 L. T. 258 ; 58 Id. 423 ; 6 Asp. M. C. 267 ; 35 W. E. 314 ; 36 Id. 870 ; 52 J. P. 212 278 Berwick v. Oswald, 1 E. & B. 295 ; 22 L. J. Q. B. 129 ; 17 Jur. 1148; 1 W. E. 113 341 Berntdson r. Strang 4 Eq. 481 ; 3 Ch. 588 ; 36 L. J. Ch. 879 : 37 Id. 665 ; 16 L. T. 583 ; 19 Id. 40 ; 15 W. E. 1168 ; 16 Id. 1025 . . 729 Berry v. Taunton, Cro. Eliz. 331 47 Berrid^e r. Berridge, 44 Ch. D. 168 ; 59 L. J. Ch. 533 ; 63 L. T. 101 ; 38 W. E. 599 152 Berthon v. Loui^hnian, 2 Stark. 258 490, 492 Bessell v. Wilson, 1 E. & B. 489 ; 22 L. J. xM. C. 94 . . . 642, 643 Bessey v. Windham, 6 Q. B. 166 ; 14 L. J. Q. B. 7 . . . . 15 Besslauer v. Brown, 3 App. Cas. 672 ; 2 C. P. D. 314 ; 47 L. J. C. P. 729 ; 46 Id. 593 ; 36 L. T. 18 ; 37 L. T. 34 ; 39 Id. 67 ; 26 W. E. 536 ; 25 Id. 815 340 Best V. Yates, 1 Vent. 268 198 Bethell, In re, 34 Ch. D. 561 ; 56 L. J. Ch. 334 ; 56 L. T. 92 . . 570 V. Clark, 20 Q. B. D. 615 ; 19 Id. 553 ; 57 L. J. Q. B. 302 ; 57 L. T. 627 ; 59 Id. 808 ; 36 W. E. 185, 611 . . 728, 729 Bettesworth v. Allingluini, 16 Q. B. D. 44 ; 34 W. E. 296 ; 50 J. P. 55 . . 641 Betts V. De Vitre, 3 Ch. 429 ; 37 L. J. Ch 325 ; 18 L. T. 165 ; 16 W. E. 529 352 V. Gibbins, 2 A. & E. 57 ; 4 N. & M. 64 ; 4 L. J. K. B. 1...154, 390, 731 Bevan v. Gethiu^, 3 Q. B. 740 ; 3 G. & D. 59 ; 12 L. J. Q. B. 37 ; 6 Jur. 971 569 Bibhy v. Carter, 4 H. & N. 153 ; 28 L. J. Ex. 182 ; 7 W. E. 193... 270, 347 Bickford v. Panson, 5 C. B. 920 ; 17 L. J. (1 P. 192 ; 12 Jur. 377 . 60 Bidden v. Leeder, 1 B. & C. 327 372 Bidder v. Bridges, 37 Ch. D. 406 ; 57 L. J. Ch. 300 ; 58 L. T. 656 320, 332, 337 Biddle v. Bond, 6 B. & S. 225 ; 34 L. J. Q. B. 137 ; 12 L. T. 178 ; 11 Jur. N. S. 425; 13 W. E. 561 195 Biddulph V. Goald, 11 W. E. 882 13 Bill V. P.anient, 9 M. & W. 36 ; 11 L. J. Ex. 81 302 V. Daienth Vale E. Co., 1 H. k N. 305 ; 20 L. J. Ex. 81 ; 2 Jur. N. S. 595 ; 4 W. E. 684 380 Billiter v. Ynung, 6 E. & B. 1 ; 25 L. J. Q. B. 169 ; 2 Jur. N. S. 438 ; 4 W. E. 369 19 Bindon's Case, Moorp, 213 425 Binstcad V. Buck, 2 W. iil. 1117 431 ]}ircli V. ])c]i('yster, 4 Camp. 385 ; 1 Stark. 210 541 V. Livcipriol, 9 V,. k C. 392 ; 4 M. & Ey. 380 . . . . 304 V. Wiight, 1 T. E. 378 ; 1 E. E. 2:i3 509 Bird V. Jioult.r, 4 B. & Ad. 443 ; 1 N. & M. 313 . . . . 321 V. lirowu, 4 ExcJi. 786 ; 19 L. J. Ex. 154 ; 14 Jur. 132. ..350, 726, 732 V. (iaiimion, 3 P. N. C. 883 ; 5 Scott, 213 ; 3 Hodges, 224 ; 6 I.. J. ('. I'. 2.-)8 289, 570 ]5iriMiii-liam <'o., /,'/, II Ecj. 615; lo L. J. Bkcy. 52; 24 L. T. 639 ; 1!) \\. W. 6(13 434 V. AlU'ii, 6 (.Ml. I). 284 ; 16 I.. J. Ch. 673 ; 37 L. T. 207 ; 25 \V. E. 810 272 Co. V. Cartwright, 1 1 Cli. ]). 421 ; 48 L. J. Cn 552 ; 40 L. T. 784 ; 27 W. E. 597 .418 TO VOLUME 1. PAGB Birkmyr v. Darnell, 1 Salk. 27 ; 3Salk. 15 ; 6 Mod. 248 ; 2 Ld. Eaviu. 1085 ; Holt, 606 " 2s7, 306 BiircU V. Dryer, 9 App. Cas. 345 ; 51 L. T. 130 . Biseop V. White, Cro. Eliz. 759 ...... Bishop V. Cliambre, 1 M. & M. 116 ; 3 C. & P. 55 . Bissell V. Beard, 28 L. T. 740 V. Fox, 51 L. T. 663 ; 53 Id. 193 ; C. & E. 395 547 105 784 547 458 621 Black V. Braybrook, 2 Stark. 7 ; 6 M. & S. 39 • V. Cliristclmrcli Co., (1894) A. C. 48 ; 63 L. J. P. C. 32 ; 70 L. T. 77 ; 58 J. P. 332 ; 6 E. 394 .... 352, 825, 830 Blackall v. Heal, Comyii, Rep. 12 326 Blackburn v. Mackey, 1 C. & P. 1 145 Blackett v. Royal Exchange Ins. Co., 2 Tyr. 266 ; 2 Cr. & J. 244 . 554 Blacklock v. Dobie, 1 C. P. D. 265 ; 45 L. J. C. P. 498 ; 35 L. T. 338 ; 24 W. R. 674 370 Blades v. Hi^irs 30 L. J. C. P. 347 ; 31 Id. 151 ; 34 Id. 286 ; 10 C. B. N. S. 713 •12 Id. 501 ; 13 Id. 844; 11 H. L. C. 621; 4 L. T. 551 ; 12 Id. 615 ; 7 Jur. N. S. 1287 ; 10 W. R. 318 ; 11 Id. 439 . 134, 135 Blain, Ex jx, 12 Ch. D. 522 ; 41 L. T. 46 ; 28 W. R. 334 . . . 607 Blake's Case, 6 Co. Rep. 44 341 Blake v. Beech, 1 Ex. D. 320 ; 45 L. J. M. C. Ill ; 34 L.T. 764... 649, 652 V. Blake, 18 W. R. 944 603 V. G. W. R. Co., 7 H. & N. 987 ; 31 L. J. Ex. 346 ; 8 Jur. N. S. 1113 ; 7 L. T. 94 ; 10 VV. R. 388 .. . 182, 200, 224 V. Mid. R. Co., 18 Q. B. 93 ; 21 L. J. Q. B. 233 ; 16 Jur. 562 . 267 Blakemore v. Bristol &E. R. Co., 8 E. & E. 1035 ; 27 L. J. Q. B. 167 ; 4 Jur. N. S. 657 ; 6 W. R. 336 228 Blanchet v. Powell Collieries, L. R. 9 Ex. 74 ; 43 L. J. Ex. 50 ; 30 L. T. 28 ; 22 W. R. 490 7 11 Bland v. Haselrig, 2 Yentr. 151 561 Blanshard, lie, 8 Oh. D. 601 ; 47 L. J. Bkcy. 113 ; 38 L. T. 619 ; 26 W. R. 636 551 Blaymire v. Haley, 6l\.& W. 55 ; 9 L. J. Ex. 147 ; 4 Jur. 107. . 263 Bleakleyy. Smith, 11 Sim. 150 320 Blewitt, Goods of, 5 P. D. 116 ; 49 L. J. P. 31 ; 42 L. T. 329 ; 28 W. R. 520 322 Bliss r. Hall, 4 B. N. C. 183 ; 5 Scott, 500 ; 6 Dowl. 442 ; 7 L. J. C. P. 1 22 ; Arn. 19 ; 2 Jur. 1 10 268 Blower v. G. W. R. Co., L. R. 7 C. P. 655 ; 41 L. J. C. P. 268 . 204, 205 Bloxam v. Sanders, 4 B. & C. 941 ; 7 D. & R. 396 . . . . 720 Blyth V. Birmingham Waterworks Co., 11 Exch. 781 ; 25 L. J. Ex. 212 ; 2 Jur. N. S. 333 ; 4 W. R. 594 . . . .828 r. Dennett, 13 C. B. 178 ; 22 L. J. C. P. 79 . . . 39, 40 V. Smith, 5 M. & Gr. 405 ; 6 Scott, N. R. 360 ; 12 L. J. C. P. 203 ; 7 Jur. 948 l-» Boden V. Roscoe, (1894) 1 Q. B. 608 ; 63 L. J. Q. B. 767 ; 70 L. T. 450 ; 42 W. R. 445 ; 58 J. P. 368 ; 10 R. 173 . . . . 340 Bod-er v. Arch, 10 Exch. 333 ; 2 C. L. R. 1491 ; 24 L. J. Ex. 19 . 567, 568 Bodily V. Long, unreported ....•••• 256 Bohtl'ingk V. Inglis. 3 East, 381 ; 7 R. R. 490 721 Bolch r". Smith,' 7 H. & N. 736 ; 31 L. J. Ex. 201 ; 8 Jur. N. S. 197 ; 6 L. T. 158 ; 10 W. R. 387 347 Bold V. Ravner, 1 M. & W. 343 ; 2 Gale, 44 ; 1 T. & G. 820 ; 5 L. J. Ex. 172 547 Boldero r. L. & Westminster Discount Co., 5 Ex. D. 47 ; 42 L. T. 56 ; 28 W. R. 154 17 Bolinr^brooke v. Swindon, L. R. 9 C. P. 575 ; 43 L. J. C. P. 287 ; 30 L. t. 723 : 23 W. R. 47 352 Boll and, Ex p., 17 Eq. 115 ; 43 L. J. Bkcy. 16 ; 29 L. T. 525 ; 22 W. R. 152 1^ Bolton V. Carlisle, 2 H. Bl. 260 786 h 2 TABLE OF CASES- Bolton V. L. & Y. E. Co., L. R. 1 C. P. 431; 35 L. J. C. P. 137 ; 12 Jur. N. 8. 317 ; 13 L. T. 764 ; 14 W. R. 430 . . . 731, 732 V. Lambert, 41 Cli. D. 295 ; 58 L. J. Ch. 425 ; 60 L. T. 687; 37 W. R. 236, 434 302, 350 V. Tomlin, 5 A. & E. 856 ; 1 N. & P. 247 ; 6 L. J. K. B. 45 . 787 Boiielli, Re, 1 P. D. 69 ; 45 L. J. P. 42 ; 34 L. T. 32 ; 24 W. R. 255 . 623 Bonion's Case, Fitzli. Detinue, 59 ....... 171 Bonner i: Liishington, 68 L. T. 91 ; 57 J. P. 168 ; 5 R. 180 . . 670 BonneweU v. Jenkins, 8 Ch. D. 70 ; 47 L. J. Ch. 758 ; 38 L. T. 581 ; 26 W. R. 294 302 Bonomi v. Backhouse. See Backlwuse v. Bonoini. Bonzi V. Stewart, 4 M. & Gr. 295; 5 Scott, N. R. 1; 11 L. J. C. P. 228 744 Boodle V. Cambell, 8 Scott, N. R. 104 ; 7 M. & Gr. 386 ; 2 D. & L. 66 ; 13 L. J. C. P. 142 ; 8 Jur. 475 157 Boothbev V. Snowden, 3 Camp. 175 . . . . . . . 335 Bott V. Acrovd, 28 L. J. M. C. 207 ; 5 Jur. N. S. 1053 ; 7 W. R. 420. 643, 654 1;. Smith, 21 Beav. 511 18 Bottomley v. Brooke, 1 T. R. 621 770 V. Forbes, 5 B. N. C. 121 ; 6 Scott, 866 ; 1 Arn. 431 ; 8 L. J. C. P. 85 ; 2 Jur. 1016 . . . .541, 559 V. Nuttali, 5 C. B. N. S. 122; 28 L. J. C. P. 110 ; 5 Jur. N. S. 315 336 Bouiston's Case, 5 Co. Rep. 104 a 237, 826 Bourdin v. Greenwood, 13 Eq. 281 ; 41 L. J. Ch. 73; 25 L. T. 782; 20 W. R. 166 281 Bouike V. Blake, 7 Ir. C. L, R. 348 372 Bourne -i;. Diggies, 2 Chit. 311 185 V. Fosbrooke, 18 C. B. N. S. 515 ; 34 L. J. C. P. 164 ; 11 Jur. N. S. 202 ; 13 W. R. 497 344 V. Gatlitf, 5 Scott, 667 ; 3 Scott, N. R. 1 ; 8 Id. 604 ; 4 B. N. C. 314 ; 1 Arn. 120 ; 3 M. & Gr. 643; 11 CI. & F. 45 204, 226, 559 V. Seymour, 16 C. B. 337 ; 24 L. J. C. P. 202 ; 1 Jur. N. S. 1001 ; 3 W. K. 511 560 Boustield v. Wilson, 16 M. & W. 185 ; 16 L. J. Ex. 44 . . . 386 Bevy's Case, 1 Vent. 193, 211, 217 131 Bowen v. Hall, 6 Q. B. D. 333 ; 50 L. J. Q. B. 305 ; 44 L. T. 75 ; 29 W. R. 367 ; 45 J. P. 373 281 Bower r. Peate, 1 Q. B. D. 321 ; 45 L. J. Q. B. 446 ; 35 L. T. 321 . 830 Bowes V. Foster, 2 H. & N. 779 ; 27 L. J. Ex. 262 ; 4 Jur. N. S. 95 ; 6 W. R. 257 16 V. Shand, 2 A])p. Cas. 455 ; 1 Q. B. D. 470 ; 45 L. J. Q. B. 507 ; 46 Id. 561 ; 34 L. T. 795 ; 36 Id. 161, 857 ; 25 W. R. 730 . 541, 560 Bowling & Well)y, Re, (1895) 1 Ch. 663 ; 64 L. J. Ch. 427 ; 72 L. T. 18, 41 1 ; 43 VV. R. 216, 417 ; 12 R. 218 370 Bowman v. Ilorsev, 2 M. & Rob. 85 541 V. ^Mchol, 5 T. R. 537 ; 1 Esp. 81 781 Bowriug r. Slie])h ; 3 W. R. 25 125 Brocklehurst v. Law, 26 L. J. Q. B. 107 ; 3 Jur. N. S. 436 ; 5 W. R. 311 433 Broder r. SaiJlard, 2 Ch. D. 692 ; 45 L. J. Ch. 414 ; 24 W. R. 1011 . 823 Brook r. Hook, L. R. 6 Ex. 89 ; 40 L. J. Ex. 50 ; 24 L. T. 34 ; 19 W. R. 508 351 Brooke v. Pickwick, 4 Bing. 218 ; 12 Moore, 447 ... . 199 Jirooks, Ex p., 23 Ch. D. 261 ; 48 L. T. 32, 453 ; 31 W. R. 833 ; 47 J. P. 470 551 I-. Cock, 3 A. t^ E. 138 ; 4 N. & M. 652 ; 4 L. J. K. B. 144 . 381 V. Glencross, 2 M. & Rob. 62 640 Broom r. Batclielor, 1 H. & N. 255 ; 25 L. J. Ex. 299 . . . 296 V. Hall, 7 C. B. N. S. 503 150 Broughton's Case, 5 Co. Rep. 24 a . . . . . . .158 Brown v. Arundell, 10 C. B. 54 428 V. Brine, 1 Ex. D. 5 ; 45 L. J. Ex. 129; 33 L. T. 703 ; 24 W. R. 177 365 V. Brown, 7 Eq. 185 ; 38 L. J. Ch. 153 ; 19 L. T. 594 ; 17 \V. R. 98 367 V. Bvnic, 3 E. & B. 703 ; 2 C. L. R. 1599 ; 23 L. J. Q. V,. 313 ; ' 18 Jur. 700 ; 2 W. R. 471 541,542 V. Carter, 5 Ves. 862 ; 5 R. R. 101 28 V. Crump, 1 Maish. 567 ........ 147 V. Glcun, l<; (,>. J5. 254 ; 20 L. J. Q. V,. 205 ; 15 Jur. 189 . 106 V. HawkcH, (1891) 2 (),. 15.718 ; 60 L. J.g.B. 332 ; 61 Id. 151; 65 L. '1'. 108; 55 J. P. 823 261,262 V. Hodgson, 2 CuiM]). 36 ; 4 Taunt. 189 221 - — V. Jones, 1 Atk. 188 27 TO VOLUxME I. PACK Brown v. Metropolitan Soc, 1 E. & E. 832 ; 28 L. J. Q. B. 23G ; 5 Jur. N. S. 1028 ; 7 AV. R. 477 520, 521 V. Perkins, 1 Hare, 564 ; 11 L. J. Ch. 307 ; 6 Jur. 727 . . 336 V. Powell Coal Co., L. R. 10 C. P. 562 ; 44 L. J. C. P. 289 ; 32 L. T. 621 ; 23 W. R. 549 741 V. Slun-ill, 2 A. & E. 138 ; 4 N. & M. 277 ; 4 L. J. K. B. 50 . 428 V. Storey, 1 Scott, N. R. 9 ; 1 M. & Gr. 117 ; 4 Jur. 319 . . 506 V. Thornton, 6 A. & E. 185 ; 1 N. & P. 339 . . . . 621 V. Robins, 4 H. & N. 186 ; 28 L. J. Ex. 250 . . 209, 270, 271 Browne v. Dawson, 12 A. & E. 624 ; 4 P. & D. 355 ; 10 L. J. Q. B. 7 134 V. Hare, 3 H. & N. 484 ; 4 Id. 822 ; 27 L. J. Ex. 372 ; 7 W. R. 619 729 V. Lee, 6 B. & C. 689 : 9 D. & R. 701 . . . . 151, 152 Browning v. Beston, 1 Plowd. 130 40, 41 ^ V. Morris, 2 Cowp. 790 384, 385 Brucklesbank v. Smith, 2 Burr. 657 635 Bruckshaw v. Hoj)kins, 1 Cowp. 409 600 Brudenell v. Boughton, 2 Atk. 268 26 Brnnnnell v. Macpherson, 14 Ves. 173 ; 7 Id. 237 .... 34 Brunsden r. Staines L. B., C. & E. 272 341 Brunswick (Duke of) v. King of Hanover, 6 Beav. 1 ; 13 L. J. Ch. 107 ; 8 Jur. 253 625 V. Slownian, 8 C. B. 317 ; 18 L. J. C. P. 299 . . .113 Brunt V. Mid. R. Co., 2 H. & C. 889 ; 33 L. J. Ex. 187 ; 10 Jur. N. S. 181 ; 9 L. T. 690 ; 12 W. R. 380 206 Bryant v. Banque du Peuple, (,1893) A. C. 170 ; 62 L. J. P. C. 68 ; 68 L. T. 546 ; 41 W. R. 600 ; 1 R. 336 . . . . 472 V. Busk, 4 Russ. 1 80 Brydges v. Lewis, 3 Q. B. 603 ; 2 G. & D. 763 ; 6 Jur. 837 ; 11 L. J. Q. B. 268 59 Bubb V. Yelverton, 9 Eq. 471 ; 39 L. J. Ch. 428 ; 22 L. T. 258 ; 18 W. R. 512 369, 372 Buckle V. Mitchell, 18 Ves. 100 ; 11 R. R. 155 . . . . 24, 25 V. Knoop, L. R. 2 Ex. 125 ; 36 L. J. Ex. 49 ; 16 L. T. 571 ; 15 W. R. 999 ...... 541 548 Buckley v. Gross, 3 B. & S. 566 ; 32 L. J. Q. B. 129 ; 9 Jur. N. S.' 986; 7 L. T. 743; 11 W. R. 465 344 V. Hull Docks Co., (1893) 2 Q. B. 93 ; 62 L. J. Q. B. 449 ; 69 L. T. 347 ; 5 R. 547 601 Buenos Ayres R. Co. v. N. R. Co. of Buenos Avres, 2 Q. B. D. 210 ; 46 L. J. Q. B. 224 ; 36 L. T. 148 ; 25 W. R. 367 . . . .603 Bullock V. Caird, L. R. 10 Q. B. 276 ; 44 L. J. Q. B. 124 ; 32 L. T. 814 ; 23 W. R. 827 620 Buhner v. Hunter, 8 Eq. 46 ; 38 L. J. Ch. 543 ; 20 L. T. 942 . . 18 Bunbury V. Fuller, 9 Exch. Ill 666 Bunch V. Kennington, 1 Q. B. 679 ; 4 P. & D. 509 ; 10 L. J. Q. B. 203 430 Bunu V. Guy, 4 East, 190 ; 1 Smith, 1 ; 7 R. R. 210 . . . 403, 407 Bunnev v. Poyutz, 4 B. & Ad. 570 ; 1 N. & M. 229 ; 2 L. J. K. B. 55 730 Burch field v. Moore, 3 E. & B. 683 ; 23 L. J. Q. B. 261 ; 18 Jur. 727 ; 2 W. R. 454 782 Burdett, Ee, 20 Q. B. D. 310 ; 57 L. J. Q. B. 263 ; 58 L. T. 708 ; 36 W. R. 128, 345 372 V. Abbot, 14 East, 1 ; 4 Taunt. 401; 5 Dowl. 165 ; 12 R.R. 450...109 Burdick v. Sewell, 10 Q. B. D. 363 ; 13 Id. 159 ; 10 App. Cas. 74 ; 5 Asp. 79, 298, 376 ; 52 L. J. Q. B. 428 : 53 Id. 399 ; 54 Id. 156 ; 48 L. T. 705 ; 51 Id. 453 ; 52 Id. 445 ; 31 W. R. 796 ; 32 Id. 740 ; 33 Id. 461 192, 193, 684, 702, 705, 739, 740 Burfurd v. Unwin, C. & E. 494 4S Burgess V. Clements, 4 M.& S. 306 ; Holt, N. P. 211, n.; 1 Stark. 251, n. 120, 121, 122 TABLE OF CASES PAGE Bur^'liall r. Howard, 1 H. Bl. 366, n. ; 6 East, 27, 11. . . . 698,713 Burke, v. S. E. R. Co., 5 C. P. D. 1 ; 49 L. J. C. P. 107 ; 41 L. T. 554 ; 28 W. R. 306 ; 44 J. P. 283 209 Burley v. Bethniie, 5 Taunt. 580 ; 1 Marsh. 220 642 Burling v. Read, 11 Q. B. 904 ; 19 L. J. Q. B. 291 ; 14 Jur. 395 . 134 Burn V. Boultou, 2 C. B. 476 ; 15 L. J. C. P. 97 . . . . 565, 566 Burnell v. Minot, 4 Moore, 340 152 Buron v. Denman, 2 Exch. 167 ; 12 Jur. 82 ... . 350, 629 Burrel's Case, 6 Co. Rep. 72 24, 27 BuiTidge V. Nicholetts, 6 H. & N. 383 ; 30 L. J. Ex. 145 ; 3 L. T. 703 r 9 W. R. 345 135 Burrouglies v. Clarke, 1 Dowl. 48 ...... . 146 Burro wes v. Gradin, 1 D. & L. 213 ; 12 L. J. Q. B. 333 ; 7 Jur. 942 503, 505, 506 Burrows r. March Gas Co., L. R. 5 Ex. 67 ; 7 Id. 96 ; 39 L. J. Ex. 33 ; 41 Id. 46 ; 22 L. T. 24 ; 26 Id. 318 ; 18 W. R. 348 ; 20 Id. 493 278 Burt V Gray, (1891) 2 Q. B. 98 ; 60 L. J. Q. B. 664 ; 65 L. T. 229 ; 39 W. R. 429 51 Burton v. Hughes, 2 Bing. 173 344 Bush r. Coles,' Carth. 232 ; 1 Salk. 196 ; 1 Show. 388. ... 65 Butcher v. Butcher, 7 B. & C. 399 ; 1 M. & Ry. 220 ; 1 B. & P. N. R. 113 133, 134 V. Harrison, 4 B. & Ad. 129 ; 1 N. & M. 677 ; 2 L. J. K. B. 189 23 V. L. & S. W. R. Co., 16 C. B. 13 ; 3 C. L. R. 805 ; 24 L. J. C. P. 137 ; 1 Jur. N. S. 427 ; 3 W. R. 409 . . . . 2U1 V. Steuart, 11 M. & W. 857 ; 1 D. & L. 308 ; 12 L. J. Ex. 391 ; 7 Jur. 774 288 Butler V. Archer, 12 Ir. C. L. R. 104 59, 90 V. Hunter, 7 H. & N. 826 ; 31 L. J. Ex. 214 ; 10 W. R. 214... 800, 814 V. Waierhouse, 2 Show. 46 ....... 25 Butt V. G. W. R. Co., 11 C. B. 140 ; 20 L. J. C. P. 241 . 205, 209, 222 ButterMekU-. Forrester, 11 East, 60 ; 10 R. R. 276 . . . . 275 r. Heath, 15 Beav. 408 ; 22 L. J. Cli. 270. . . 25, 27 Buttigieg V. Booker, 9 C. B. 689 ; 19 L. J. C. P. 330 . . . . 336 Buxton V. N. E. R. Co., L. R. 3 Q. B. 549 ; 9 B. & S. 824 ; 37 L. J. Q. B. 258 ; 18 L. T. 795 ; 16 W. R. 1124 . . . 224 V. Rust, L. R. 7 Ex. 279 ; 41 L. J. Ex. 1, 173 ; 25 L. T. 502 ; 27 Id. 210 ; 20 W. R. 100, 1014 . . . .300 Bvrom V. Thompson, 11 A. & E. 31 ; 3 P. & D. 71 ; 9 L. J. Q. B. 26; 3 Jur. 1121 783 c. Cadell V. Palmer, 10 Bing. 140 417, 418 Cadge, Rr, I,. R. 1 P. & D. 543 ; 37 L. J. i'. & M. 15 ; 17 L. T. 484 ; 16 \V. R. 406 785 Cadogun r. Keiinett, 2 Cow]). 432 14,30 Cahill V. L. c^ N. W. R. Co., 10 (I B. N. S. 154 ; 13 Id. 818; 30 L. J. C. I'. 2s!) ; 31 Id. 271 ; 7 Jur. N. S. 1164 ; 8 Id. 1063 ; 4 L. T. 246 ; 9 W. R. 653 ; 10 Id. 391 201,204 Cairns v. liohl.ins, H M. & W. 258 ; 10 L. J. I<:x. 452 . . 187, 224, 225 Culderott, /';./• p., 4 Ch. D. 150 ; 46 L. J. Bkcy. 14 ; 35 L. T. 172, 503 ; 25 W. R. 103; 13 Cox, C. C. 374 365,386 Calderr. llalkef, 3 Moo. I'. (;. 2H 631 Navigatioi. r. I'illing, 14 M. cS; W. 76 ; 14 L. J. Ex. 223 ; 9 Jur. 377 ; 3 Uailw, Cas. 735 415 Caldwell V. l',all, 1 T. R. 205 ; 1 U. R. Is7 . 680, 682, 687, 70o, 706, 734 7-. I'ark.'r, Ir. Pc].. 3 E-1.51!) ; 17 W. R. 955 . . 782,788 TO VOLUME I. PAGE Caledonian Ins. Co. v. Gilniour, (1893) A. C. 85 ; 57 J. P. 228 ; 1 R. 110 341 Callaghan v. Dolwin, L. K. 4 C. P. 288 ; 38 L. J. M. C. 110 ; 17 W. R. 733 672 Callender v. Howard, 10 C. B. 290 ; 1 L. M. & P. 755 ; 20 L. J. C. P. 66 ; 15 Jur. 130 332 Calliope, The,(iy9I) A. C. 11 ; 14 P. D. 138 ; 58 L. J. A. 76; 60 Id. 28 ; 61 L. T. 6:)6 ; 63 Id. 781 ; 38 W. R. 155 ; 39 Id. 641 ; 6 Asp. M. C. 359, 440, 585 ; 55 J. P. 357 198 CaTlisber v. Bischoflslieim, L. R. 5 Q. B. 449 ; 39 L. J. Q. B. 181 ; 18 W. R. 1137 331 Calvert v. Baker, 4 M. & W. 417 ; 7 Dowl. 17 ; 1 Horn & H. 404 ; 8 L. J. Ex. 40 ; 2 Jur. 1020 782 Cameron, lie, 37 Ch. D. 32 ; 57 L. J. Cli. 69 ; 57 L. T. 645 ; 36 W. R. 5 28, 29 V. Kyte, 3 Knapp, 332 351 Camniell v. Sewell, 5 H. & N. 728 ; 3 Id. 617 ; 27 L. J. Ex. 447 ; 29 Id. 350 ; 4 Jur. N. S. 978 ; 6 Id. 918 ; 8 W. R. 639 .. . 608 Camoys v. Scurr, 9 C. & P. 383 190 Campbell r. Campbell, 7 CI. &F. 166, 179 156 . V. Im Thurn, 1 C. P. D. 267 ; 45 L. J. C. P. 482 ; 24 VV. R. 675 335 V. Lewis, 3 B. & Aid. 392 ; 3 Moore, 35 . . . 65, 72 V. Rickards, 5 B. & Ad. 840 ; 2 N. & M. 542 ; 2 L. J. K. B. 204 490, 491, 492 V. Spottiswoode, 32 L. J. Q. B. 185 ; 9 Jur. N. S. 1069 ; 8 8 L. T. 201 ; 11 W. R. 569 262 Cannan v. Wood, 2 M. & W. 465 ; 6 L. J. Ex. 112 ; 1 Jur. 498 . . 336 Canterbury v. A.-G., 1 Phillips, 306 273 Cardwell v. Martin, 9 East, 190 ; 1 Camp. 79,180 b. . . . 781, 784 Cariss v. Tattersall, 2 M. & Gr. 890 ; 3 Scott, N. R. 257 ; 10 L. J. C. P. 187 783 Carle v. Elkington, 67 L. T. 374 656 Carleton v. Bri-litwell, 2 P. Wms. 462 532 Carlon v. Irelaiid, 5 E. & B. 765 ; 25 L. J. Q. B. 113 ; 2 Jur. N. S. 39;4W. R. 200 457,470 Carnaby v. Welby, 8 A. & E. 872 ; 1 P. & D. 98 ; 1 W. W. & H. 597 ; 8 L. J. K. B. 22 ; 2 Jur. 1065 345 Carnes v. Nisltett, 31 L. J. Ex. 273 ; 7 H. & N. 158, 778 ; 7 Jur. N. S. 1250 ; 4 L. T. 558 412 Carpenter v. Mason, 12 A. & E. 629 ; 4 P. & D. 439 ; 10 L. J. M. C. 1 649 V. Parker, 3 C. B. N. S. 206 ; 27 L. J. C. P. 78 ; 6 W. R. 98 507 Carpue v. L. & B. R. Co.. 5 Q. B. 747 ; D. & U. 008 ; 3 Railw. Cas. 692 ; 13 L. J. Q. B. 133 ; 8 Jur. 464 200 Carr v. Burdiss, 5 Tyr. 309 ; 1 C. M. & R. 782 ; 4 L. J. Ex. 60 . .13 v. L. & Y. R. Co., 7 Exch. 707 ; 21 L. J. Ex. 261 ; 7 Railw. Cas. 426; 17 Jur. 397 208,210 V. Strineer, E. B. & E. 123 ; 4 Jur. N. S. 439 . . . .644 Carrington r.^Roots, 2 M. & W. 248 ; Mur. & H. 14 ; 6 L. J. Ex. 95 ; 1 Jur. 85 301 Carstairs v. Taylor, L. R. 6 Ex. 217 ; 40 L. J. Ex. 129 ; 19 W. R. 723 824 Carter I'. Boelim, 3 Burr. 1905; 1 W. Bl. 593 474 r. Carter, 5 Bill-. 406 ; 2 :\L & P. 723 . . . 157,164 V. Crick, 4 H. & N. 412 ; 28 L. J. Ex. 238 ; 7 W. R. 507 . 560 V. Wake, 4 Ch. U. 605 ; 46 L. J. Cn. 841 .. . 192, 193 V. Williams, 9 Eq. 678 ; 39 L. J. Ch. 560 ; 23 L. T. 183 ; 18 W. R. 593 87 Carteret v. Petty, 2 Swanst. 323, n 603 Cartwright i-. Cartwright, 26 W. R. 684 623 Carvalho v. Burn, 4 13. & Ad. 382 ; 1 A. & E. 883 ; 1 N. & M. 700 ; 4 Id. 889 . . . 520 TABLE OF CASES PAGK Carvick v. Blagrave, 1 B. & B. 531 ; 4 Moore, 303 . . . 91, 95 Cashill V. Wright, 6 E. & B. 891 ; 2 Jur. N. S. 1072 . . . 123, 187 Cassaboglou v. Gibb, 11 Q. B. D. 797 ; 9 Id. 220 ; 51 L.J. Q. B. 593 ; 52 Id. 538 ; 47 L. T. 98 ; 48 Id. 850 ; 32 W. K 138 ; 46 J. P. 568 725 Castellan v. Hobson, 10 Eq. 47 ; 39 L. J. Ch. 490 ; 22 L. T. 575 ; 18 W. E. 731 166, 546 Castrique v. Behrens, 30 L. J. Q. B. 163 ; 7 Jur. N. S. 1028 ; 4 L. T. 52 261 Caswell V. Worth, 5 E. & B. 849 ; 25 L. J. Q. B. 121 ; 2 Jur. N. S. 116; 4 W. R. 231 275 Caterham R. Co., In re, 1 C. B. N. S, 410 ; 26 L. J. C. P. 161 . . 203 Catford, Re, 71 L. T. 584 ; 43 W. R. 159 560 Cathcart v. Hardy, 2 M. & S. 534 651 Catling, Ex ]j., 29 L. T. 431 731 V. King, 5 Ch. D. 660 ; 46 L. J. Ch. 384 ; 36 L. T. 526 ; 25 W. R. 550 298 Caton V. Caton, L. R. 2H. L. 127 ; 1 Ch. 137 ; 35 L. J. Ch. 292 ; 36 Id. 886 ; 12 Jur. N. S. 171 ; 12 L. T. 532 ; 14 Id. 34 ; 13 W. R. 801 ; 14 Id. 267 299, 320 Catton V. Simpson. 8 A. & E. 136 ; 3 N. & P. 248 ; 1 W. W. & H. 157 ; 2 Jur. 888 782, 783 Cave V. Mountain, 1 M. & Gr. 257 ; 1 Scott, N. R. 132 ; 9 L. J. M. C. 90 649, 652 V. Hastings, 7 Q. B. D. 125 ; 50 L. J. Q. li. 575 ; 45 L. T. 348 297 Cawthorne v. CordreA', 13 C. B. N. S. 406 305 Chadburn v. Moore, 67 L. T. 257 ; 61 L. J. Ch. 674 ; 41 W. R. 39 . 322 Chaddock v. Wilbraham, 5 C. B. 645 ; 17 L. J. M. C. 79; 12 Jur. 136 ; 3 New Sess. Cas. 226 654 Chadwick v. Trower. See Trower v. Chadwick. Chalmers, Exp., 8 Ch. 289 ; 42 L. J. Bkcy. 2, 37 ; 28 L. T. 325 ; 21 W. R. 138, 349 723, 730 Chamberlain v. Boyd, 11 Q. B. D. 407 ; 52 L. J. Q. B. 277 ; 48 L. T. 328 ; 31 W. R. 572 ; 47 J. P. 372 . . . . 280 V. Napier, 15 Ch. D. 614 ; 49 L. J. Ch. 628 ; 29 W. R. 194 609 Chambers y. Donaldson, 11 East, 65 ; 10 R. R. 435 . . . 344,345 V. Manchester R. Co., 5 B. & S. 588 ; 33 L. J. Q. B. 268 ; 10 Jur. N. S. 700 ; 12 W. R. 980 373, 378 Chaney v. Payne, 1 Q. B. 712 ; 1 G. & D. 348 ; 6 Jur. 79 . . . 646 Chanter v. Money, 12 Ir. C. L. R. 161 185 Chaplco V. J^>runs\vick Building Soc, 6 Q. B. D. 696; 5 C. P. 1). 331 ; 50 L. J. g. B. 372 ; 42 L. T. 741 ; 44 Id. 449 ; 29 W. R. 153 . 380 Cliaplin, Jixj>., 26 Ch. D. 319 ; 53 L. J. Ch. 732 .... 17 Cliapman, 7?i re, 1 Manson, 415 413,415,551 r. Beecham, 3 Q. B. 723 ; 3 G. & D. 71 ; 12 L. J. Q. B. 42 ; 6 Jur. 968 520 V. Emery, 1 Cowp. 278 25 V. G. W. R. Co., 5 Q. B. D. 278 ; 49 L. J. Q. B. 420 ; 42 L. T. 252 ; 28 W. R. 566 ; 44 J. P. 363 .. . 225 t;. Pickersgill, 2 Wils. 145 258 V. RobJTison, I E. & E. 25 ; 28 L. J. M. C. 30 ; 5 Jur. N. S. 434 ; 7 W. R. 12 671 V. Rotiiwell, E. B. & E. 168 ; 27 L. J. Q. B. 315 ; 4 Jur. N. S. 1180 267 V. Sutton, 2 C. B. 634 ; 3 D. & L. 646 ; 15 L. J. C. P. 166 . 295 V. VValt(jii, 10 ]3ing. 57 ; 3 M. & Scott, 389 ; 2 L. J. C. P. 210 484,491 Cliarkich, M'he, L. li. 4 A. k E. 59 ; L. R. 8 Q. B. 197 ; 42 L. J. A. 17 ; 28 L. T. 513 626 Cliarlcstoii V. London 'rrauis., 36 W. R. 367 352 Chartered Bank v. J IciKJersoii, L. \l. 5 i'. C. 50] ; 30 L. T. 578. . 735 TO VOLUME I. PAGE Chartered Bank of India v. Netherlands Co., 10 Q. B. D. 521 ; 9 Id. 118 ; 51 L. J. Q. B. 393 ; 52 Id. 220 ; 46 L. T. 530 ; 48 Id. 54(5 ; 4 Asp. M. C. 523 ; 5 Id. 65 ; 31 W. R. 445 ; 47 J. P. 260 . 220, 605, 609 Chasemore v. Richards, 7 H. L. C. 349 ; 2 H. & N. 168; 26 L. J. E.x. 393 ; 29 Id. 81 ; 3 Jur. N. S. 984 ; 5 Id. 873 ; 5 W. R. 780 ; 7 Id. 685 273, 812 V. Turner, L. R. 10 Q. B. 500; 45 L. J. Q. B. 66; 33 L. T. 323 ; 24 W. R. 70 • 570 Chatenav v. Brazilian Submarine Telec^^raph Co., (1891) 1 Q. B. 79 ; eoL.'j. Q. B. 295; 63L. T. 739; 39 W. R. 65 . . . .622 Chatterton v. Secrt'tary of State for India, (1895) 2 Q. B. 189 ; 72 L. T. 858 ; 14 R 262 Chauntler v. Robinson, 4 E.\ch. 163 ; 19 L. J. Ex. 170 .. . 795 Chauranrlev, 8 T. R. 610 141 Chinery v. Viall, 5 H. & N. 288 ; 29 L. J. Ex. 180 ; 2 L. T. 466 ; 8 W. R. 629 191, 228 Chippendale v. L. & Y. R. Co., 21 L. J. Q. B. 22 ; 7 Railw. Cas. 824 ; 15 Jur. 1106 208 Cholmelev School v. Sewell, (1894) 2 Q. B. 906; 63 L. J. Q. B. 820 ; 71 L. f. 88; 58 J. P. 591 ; 10 R. 368 51 Chowne v. Baylis, 31 Beav. 351 ; 31 L. J. Ch. 757 ; 8 Jnr. N. S. 1028 ; 6 L. T. 739 ; 11 W. R. 5 18 Christchurch v. Buckingham, 17 C. B. N. S. 391 ; 33 L. J. C. P. 322 ; 10 Jur. X. S. 749 ; 10 L. T. 575 ; 12 W. R. 986 . . . . 504 Christiansborg, The, 10 P. D. 141 ; 54 L. J. A. 84 ; 53 L. T. 612 ; 5 Asp. M. C 491 (523 Christie v. Griggs, 2 Camp. 79 ; 11 R. R. 666 200 V. St. Luke's, Guardians of, 8 E. & B. 992 ; 27 L. J. M. C. 153 ; 4 Jur. N. S. 734, n. ; 6 W. R. 333 . . . .672 — V. Umvin, 11 A. & E. 373 ; 3 P. & D. 204 ; 9 Dowl. 294 ; 10 L. J. Ex. 129; 4 Jur. 363 649 Christmas v. Whinyates, 3 Sw. & Tr. 81 ; 32 L. J. P. 73; 9 Jur. N. S. 283 ; 7 L. T. 801 ; 11 W. R. 371 V84 Christopherson v. Burton, 3 Exch. 160 ; 18 L. J. Ex. 60 . . .23 Church V. Barnett, L. R. 6 C. P. 116 ; 40 L. J. C. P. 138 ; 23 L. T. 705 ; 19 W. R. 411 601 V. Brown, 15 Ves. 258 ; 10 R. R. 74 49 V. Dalton, 2 Ir. C. L. R. 249 93 Churchill v. Siggers, 3 E. & B. 929 ; 2 C. L. R. 1509 ; 23 L. J. Q. B. 308 ; 18 Jur. 773 260 Churchward v. Johnson, 54 J. P. 326 435 Citv Bank v. Barrow, 5 App. Cas. 664 ; 43 L. T. 393 . . . .743 Ckrk, Re, (1894) 2 Q. B. 393 ; 63 L. J. Q. B. 806 ; 70 L. T. 751 ; 9 R. 498 ; 1 Manson, 207 344 V. Alexander, 8 Scott, N. R. 147; 13 L. J. C. P. 133; 8 Jur. 496. 566, 569 V. Chambers, 3 Q. B. D. 327 ; 47 L. J. Q. B. 427 ; 38 L. T. 454 ; 26 W. R. 613 275, 278, 446 V. Clark, 10 P. D. 188 ; 54 L. J. P. 57 ; 52 L. T. 234 ; 33 W. R. 405 ; 49 J. P. 516 367 V. Gaskarth, 8 Taunt. 431 ; 2 jNIoore, 491 426 V. Gilbert, 2 B. N. C. 343 ; 2 Scott, 520 ; 1 Hodges, 347 ; 5 L. J. C. P. 61 190, 193, 228 V. Hooper, 10 Bing. 480 ; 4 M. & Scott, 353 . . . .567 V. Molyneux, 3 Q.^B. D. 237 ; 47 L. J. Q. B. 230 ; 36 L. T. 466 263 TABLE OF CASES PAGE Clarke, i?e, 2 Q. B. 619 ; 2 G. & D. 780 ; 11 L. J. Q. B. 75 ; 6 Jur. 757 663 V. Adair, unreported ........ 772 V. Ernsliaw, 1 Gow. 30 198 V. Millwall Co., 17 Q. B. D. 494 ; 55 L. J. Q. B. 378 ; 54 L. T. 814 ; 34 W. R. 698 429 V. Roystone, 13 M. & W. 752 ; 14 L. J. Ex. 143 . . . 556 V. Shee, 1 Cowp. 197 ; 2 Douc,d. 698, n 468 V. Westrope, 18 C. B. 765 ; 25 L. J. C. P. 287 . •. . 556 V. Willott, L. R. 7 Ex. 313 ; 41 L. J. Ex. 197 . . . .25 V. Wrii^ht, 5 H. & N. 401 ; 6 Id. 849 ; 29 L. J. Ex. 150 ; 30 Id. 113 ; 7 Jur. N. S. 1032 ; 2 L. T. 155'; 4 Id. 21 ; 8 W. R. 418 ; 9 Id. 571 28 Claridge v. S. Staffordshire Tram. Co., (1892) 1 Q. B. 422; 61 L. J. Q. B. 503 ; 66 L. T. 655 ; 56 J. P. 408 190, 230 Claverin.gUH V. ]}cniai(l, 2 Ld. Raym. 909 ; 3 I<1. 163 ; 1 Salk. 26 ; 3 Id. 11, 268 ; Jlolt, 13, l;51, 528 ;' 1 Comyns, 133 167 Cogliil »•. iMcclovc, 3 ]\Iod. 325; 2 Vent. 209 69 Cohen r. Kitt.11,22 (). V.. 1). 680 ; 58 L..). (,). B. 241 ; 60 L. T. 932 ; 37 W. |[. 400 ; 53 J. P. 469 369 V. "Alitclicll, 25 Q. 15. I). 262 ; 59 L. J. (,). P.. 1(>!) ; 63 L. T. 206 ; 38 W. R. 551 344 V. S. E. H. Cf)., 2 Ex. T). 253 ; 1 Id. 217 ; 45 L. J. Ex. 298 ; 46 Id. 298 ; 35 L. T. 213 ; 36 Id. 130 ; 24 W. R. 522 ; 25 Jd. 475 200, 213, 221, 609 TO VOLUME I. PAGE Colam V. Pagett, 12 Q. B. D. 66 ; 53 L. J. M. C. 64 ; 32 W. R. 280 . 432 Colborne v. Sttickdalu, 1 Str. 493 3G9 Colburn v. Patmore, 1 C. M. & R. 73 ; 4 Tyr. 677 ; 3 L. J. Ex. 317 155, 156 Colchester v. Brooke, 7 Q. B. 339 ; 15 L. J. Q. B. 173 ; 9 Jur. 1090 . 276 Cole's C!ase. See Buah v. Coles. Cole V. Davies, 1 Ld. Raym. 724 13 V. Gibson, 1 Ves. sen. 503 367 V. Green, 6 M. & Gr. 872 ; 7 Scott, N. R. 682 ; 13 L. J. C. P. 30 382 V. N. W. Bank, L. R. 9 C. P. 470 ; 10 Id. 354 ; 43 L. J. C. P. 194 ; 44 Id. 223 ; 30 L. T. 684 ; 32 Id. 733 ; 22 W. R. 861 . 743, 744 Coleman v. Riches, 16 C. B. 104 ; 3 C. L. R. 795 ; 24 L. J. C. P. 125 ; 1 Jur. N. S. 596 ; 3 W. R. 453 351 Coles V. Bank of England, 10 A. & E. 437 ; 2 P. & D. 521 ; 9 L. J. Q. B. 36 ; 4 Jur. 266 275 V. Bristowe, 4 Ch. 3 ; 6 E(i. 149 ; 37 L. J. Ch. 737 ; 38 Id. 81 ; 19 L. T. 403 ; 18 Id. 459 ; 17 W. R. 105 . . . . 545 . V. Pack, L. R. 5 C. P. 65 ; 39 L. J. C. P. 63 ; 18 W. R. 292 295, 296 V. Peyton, (1893) 3 Ch. 238 ; 62 L. J. Ch. 991 ; 69 L. T. 738 . 151 V. Trecothick, 9 Ves. 234 ; 1 Smith, 233 ; 7 R. R. 167 . . 321 Collett V. L. & N. W. R. Co., 16 Q. B. 984 ; 20 L. J. Q. B. 411 ; 15 Jur. 1053 182 Collingbourne v. Mantell, 5 M. & W. 289 ; 7 Dowl. 518 ; 8 L. J. Ex. 25f; 3 Jur. 847 336 Collingwood v. Berkeley, 15 C. B. N. S. 145 ; 8 L. T. 763 ; 12 W. R. 13 . . . ." 682 Collins, Re, 21 L. R. Ir. 508 . . 434 v. Blantern, 2 Wils. 341. . 350,355,384,389,401,767,773 V. Castle, 36 Ch. D. 243 ; 57 L. J. Ch. 76 ; 57 L. T. 764 ; 36 W. R. 300 88 V. Plumb, 16 Ves. 454 ; 10 R. R. 214 84 V. Lock, 4 A pp. Cas. 674 ; 48 L. J. P. C. 68 ; 41 L. T. 292 ; 28 W. R. 189 340, 341, 415 V. Martin, 1 B. & P. 648 ; 2 Esp. 520 ; 4 R. R. 752 . 457, 468 Collinson ■;;. Margesson, 27 L. J. Ex. 305 566 Colonial Bank v. Cady, 15 App. Cas. 267 ; 36 Ch. D. 659 ; 38 Id. 388 ; 57 L. J. Cli. 826 ; 60 Id. 131 ; 57 L. T. 188 ; 59 Id. 643 ; 63 Id. 27 ; 36 W. R. 625 ; 39 Id. 17 . 460, 466 of Australasia v. Willan, L. R. 5 P. C. 417 ; 43 L. J. P. C. 39 ; 30 L. T. 237 ; 22 W. R. 516 . . . 641, 663, 667, 670 Colquhoun, Ax jij., 38 W. R. 688 146 Coltman, Re, 19 Ch. D. 64 ; 51 L. J. Ch. 3 ; 45 L. T. 392 ; 29 W. R. 923 ; 30 Id. 342 370 Columbine v. Peuliall, 1 Sm. & Gift". 228 ; 19 L. J. Q. B. 302 ; 14 Jar. 460 18 Commins v. Scott, 20 Eq. 11 ; 44 L. J. Ch. 563 ; 32 L. T. 420 ; 23 W. R. 498 298 Comyn v. Sabine, unreported . 581 Concha v. Murrieta, 40 Ch. D. 543 ; 60 L. T. 798 .. . 622, 623 Congleton v. Pattison, 10 East, 130 65 Conlan's Estates, Re, 29 L. R. Ir. 199 27 Connell v. McGorlich, 12 Ir. C. L. R. 153 142 Conran v. Redder, 2 Ir. C. L. R. 200 70 Constitution, The, 4 P. D. 39 ; 48 L. J. P. 13 ; 40 L. T. 219 ; 27 W. R. 739 626 Cooch V. Goodman, 2 Q. B. 580 ; 11 L. J. Q. B. 225 ; 2 G. & D. 159 ; 6 Jur. 779 299 Cook V. Arundel, 1 Abr. Eq. 26, F. 1 ; Hardr. 87, pi. 5 . . 77, 78 V. Guerra, L. R. 7 C. P. 132 ; 41 L. J. C. P. 89 ; 26 L. T. 97 ; 20 W. R. 367 503 V. Lister, 13 C. B. X. S. 543 ; 32 L. J. C. P. 121 ; 9 Jur. X. 8. 823 ; 7. L. T. 712 ; 11 W. R. 369 .... 337, 338 TABLE OF CASES PAGE Cook V. Wright, 1 B. & S. 559 ; 30 L. J. Q. B. 321 ; 7 Jur. N. S. 1121 ; 4 L. T. 704 331 Cooke V. Birt, 5 Taunt. 765 ; 1 Marsh. 333 ; 15 R. R. 652 . 105, 106, 107 V. Chilcott, 3 Ch. D. 694 ; 34 L. T. 207 87 Cockney r. Anderson, 31 Beav. 452 ; 1 De G. J. & S. 365 ; 32 L. .J. Ch. 305, 427 ; 8 Jur. N. S. 1220 ; 9 Id. 736 ; 7 L. T. 491 ; 8 Id. 295 ; 11 W. R. 628 603, 604 Coombs V. Bristol & Exeter R. Co., 3 H. & N. 1, 510 ; 27 L. J. Ex. 269, 40] ; 6 W. R. 335, 725 . . . . . 221, 301 V. Wilkes, (1891) 3 Ch. 77 ; 61 L. J. Ch. 42 ; 65 L. T. 56 ; 40 W. R. 77 298 Cooper, Ex p., 11 Ch. D. 68 ; 48 L. J. Bkcy. 49 ; 40 L. T. 105 ; 27 W. R. 518 729, 730, 731, 732 . V. Blaudy, 1 B. N. C. 45 ; 4 M. & Scott, 562 ; 3 L. J. C. P. 274 96 r. Bill, 3 H. & C. 722 ; 34 L. J. Ex. 161 ; 12 L. T. 466 . . 727 r. Parker, 15 C. B. 822 ; 14 Id. 118 ; 2 C. L. R. 49 ; 3 Id. 710 ; 24 L. J. C. P. 68 ; 1 Jur. N. S. 281 ; 3 W. R. 245... 331, 332, 337 V. Phillips, 5 Tvr. 166 ; 3 Dovvl. 196 ; 1 C. M. & R. 649 . 334 V. Whittin-hani, 15 Ch. D. 501 ; 49 L. J. Ch. 752 ; 43 L. T. 16 ; 28 W. R. 720 285 . V. Willoniatt, 1 C. B. 672 ; 14 L. J. C. P. 219 ; 9 Jur. 598... 191, 228 V. Walde^rave, 2 Beav. 282 618 V. Wandsworth District Board, 14 C. B. N. S. 180 ; 32 L. J. C. P. 185 ; 9 Jur. N. S. 1155 ; 11 W. R. 646 652 Cope V. Doherty, 4 K. & J. 367 ; 2 De G. & J. 614 ; 27 L. J. Ch. 600 ; 4 Jur. N. S. 451 ; 6 W. R. 537, 695 618 V. Rowlands, 2 M. & W. 149 ; 2 Gale, 231 ; 6 L. J. Ex. 63 . 374 Copeland v. Stej.hens, 1 B. & Aid. 593 47 Copin V. Adamson, 1 Ex. D. 17 ; L. R. 9 Ex. 345 ; 43 L. J. Ex. 161 ; 45 Id. 15 ; 31 L. T. 242 ; 33 Id. 560 ; 22 W. R. 658 ; 24 Id. 85 . 620 Coppock V. Bower, 4 M. & W. 361 ; 8 L. J. Ex. 9 . . . . 365 Corbett V. Corbett, 13 P. D. 136 ; 14 Id. 7 ; 57 L. J. P. D. A. 97 ; 58 Id. 17 ; 60 L. T. 74 ; 37 W. R. 30, 114 . . .417 V. Hill, 39 L. J. Ch. 547 ; 9 Eq. 671 ; 22 L. T. 263 . . 273 V. Plowden, 25 Ch. D. 678 ; 54 L. J. Ch. 109 ; 50 L. T. 740 ; 32 AV. R. 667 507 Corby r. Hill, 4 C. B. N. S. 556 ; 27 L. J. C. P. 318 ; 4 Jur. X. S. 512 ; 6 W. R. 575 347 Cork Distilleries Co. v. G. S. & W. R. Co., L. R. 7 H. L. 269 . . 222 R. Co., Ee, 4 Ch. 748 ; 39 L. J. Ch. 277 ; 21 L. T. 47 ; 17 W. R. 873 373, 378 Corniick v. Trapaud, 6 Dov\, 60 24 Conil.urv V. Middleton, Ch. Cas. 208 78 Cornish v. Clark, 14 Eq. 184 ; 42 L. J. Ch. 14 ; 26 L. T. 494 ; 20 W. R. 897 ... 19 V. Stubbs, L. R. 5 C. P. 334 ; 39 L. J. C. P. 202 ; 22 L. T. 21 ; IK W. U. 547 60 Com well V. Sanders, 3 B. & S. 206 ; 32 L. J. M. C. 6 ; 9 Jur. N. S. 540; 7 L. T. 356; 11 W. R. 87 665,666 Costa Rica (Hci.ublic of) v. Erlan^er, 3 Ch. D. 62 ; 45 L. J. Ch. 145 ; 33 L. T. 632; 24 W. R. 151 .' 628 Cf)tertW()rtii V. Spokes, 10 C. B. N. S. 103 ; 30 L. J. C. P. 220 ; 7 Jur. N. S. 803 ; 1 li. T. 214; 9 W. R. 436 40 Cottam r. Parliid-.', 4 M. &(;r. 271 ; 4 Scott, N. R. 819 ; 11 L.J. C. P. 1(11 566 Cotlerell /•• Ilt^iiier, 13 Sim. 506 ; 7 Jur. 544 29 V. Jones, 11 C. B. 713 ; 21 L. J. C. P. 2 ; 16 Jur. 88 . . 261 Cotterill v. Leiii].ricrc, 24 Q. 13. D. 634 ; 59 L. J. M. C. 133 ; 62L.T. 695 ; 54 J. \\ 5.S3 651 Cotton V. Thurlaiid, 5 T. R. 105 386 TO VOLUME 1. PAGE Couch V. Steel, 3 E. & B. 402 .286 Coupe Co. V. Maddick (1891), 2 Q. E. 412; 60 L. J. Q. B. 076; 65 L. T. 489 191 Courtney v. CoUett, 1 Ld. Rayni. 272 ; 12 Mod. 164 . . . . 444 Couturier v. Hastie, 8 Exch. 40 ; 9 Id. 102 ; 5 H. L. C. 673 ; 22 L. J. Ex. 95, 299 ; 25 Id. 253 ; 17 Jur. 1127 ; 2 Jur. N. S. 1241 ; 1 W. R. 495 291 Coventry!'. (Iladstone, 6Eq. 44; 37 L. J.Ch.492; 16W.R.837...729,730,739 Covington v. Willan, Gow. 115 204 Cowan V. MilLourn, L. R. 2 Ex. 230 ; 36 L. J. Ex. 124 ; 16 L. T. 290 ; 15 AV. R. 750 368 Coward V. Gregory, L. R. 2 C. P. 153 ; 36 L. J. C. P. 1 ; 12 Jur. N. S. 1000 ; 15 L. T. 279 ; 15 W. R. 170 45 Cowas-jee v. Thomiison, 5 Moo. P. C. 165 ; 3 Moo. Ind. App. 422 . 728 Cowellr. Edwards, 2 B. & P. 268 151 Cowie V. Halsall, 4 B. & Aid. 197 ; 3 Stark. 36 782 Cowles V. Potts, 34 L. J. Q. B. 247 ; 13 W. R. 858 . . . . 262 Cowx r. Foster, 1 J. & H. 30 ; 29 L. J. Ch. 886 ; 6 Jur. N. S. 1051 ; 2 L. T. 797 18 Cox V. Bishop, 26 L. J. Ch. 389 ; 8 De G. M. & G. 815 ; 3 Jur. N. S. 499 ; 5 W. R. 437 89 V. Browne, Cha. Rep. 170 . . . . . . . .47 V. Fnrbidge, 13 C. B. N. S. 430 ; 32 L. J. C. P. 89 ; 9 Jur. N. S. 970 ; 11 W. R. 435 .... 431,804,806,826,827 V. ]\Luncey, 6 C. B. N. S. 375 375 Coxhead v. Richards, 2 C. B. 569 ; 15 L. J. C. P. 278 ; 10 Jur. 984 . 263 Crabtree v. Robinson, 15 Q. B. D. 312 ; 54 L. J. Q. B. 544 ; 33 W. R. 936 ; 50 J. P. 70 108 Craft V. Bovte, 1 Saund. 246 b ; 1 Vent. 22 ; Sir T. Raym. 181 ; 2 Keb. 496 . " 599 Crampton v. Ridley, 20 Q. B. D. 48 ; 57 L. T. 809 ; 36 W. R. 554 . 146 Crane v. Powell, L. R. 4 C. P. 123 ; 38 L. J. M. C. 43 ; 20 L. T. 703 ; 17 W. R. 161 297 Cranley v. Hillary, 2 M. & S. 120 334 Craven v. Ht-nlev, Barnes, 255 ........ 326 Crawcour v. Salter, 18 Ch. D. 30 ; 51 L. J. Ch. 495 ; 45 L. T. 62 ; 30 W. R. 21 551 Crawley v. Price, L. R. 10 Q. B. 302 ; 33 L. T. 203 ; 23 W. R. 874 . 49 Crears v. Hunter, 19 Q. B. D. 341 ; 56 L. J. Q. B. 518 ; 57 L. T. 554 ; 35 W. R. 821 295 Crepps V. Durden, 2 Ct)\vp. 640 . 632 Crenien v. Hawkes, 2 J. & L. 674 98 Cresswell v. Wood, 10 A. & E. 460 301 Creswell y. Davidson, 56 L. T. 811 51 Crijips V. Davis, 12 M. & W. 159; 13 L. J. Ex. 217 . . . . 568 V. HartnoU, 32 L. J. Q. B. 381 ; 2 B. & S. 697 ; 4 Id. 414 ; 10 Jur. N. S. 200 ; 8 L. T. 765 ; 11 W. R. 953 290 Crisp V. Anderson, 1 Stark. 35 353 Crispin, Ex j)., 8 Ch. 374 ; 42 L. J. Bk. 65 ; 28 L. T. 483 ; 21 ^Y. R. 491 607 Critchley, Exp., 3 D. & L. 527 ; 15 L. J. Q. B. 124 ; 10 Jur. 112 . 364 Croft V. Lumlev, 5 E. & B. 648, 682 ; 4 Id. 608 ; 6 H. L. C. 672 ; 24 L. J. Q. B. 78 ; 25 Id. 73, 223 ; 27 Id. 62 ; 1 Jur. N. S. 424 ; 2 Id. 62, 279 ; 4 Id. 904 ; 3 W. R. 234 ; 6 Id. 523 . 36, 38, 39, 47 v. Smallwood, 1 Esp. 121 287 Crofts V. Harris, Garth. 187 325 Crompton v. Lea, 19 Eq. 115 ; 44 L. J. Ch. 69 ; 31 L. T. 469; 23 W. R. 53 823 Cronin v. Rogers, 1 C. & E. 348 39 Croockewit v. Fletcher, 1 H. & N. 893 ; 26 L. J. Ex. 153 ; 5 W. R. 348 786 TABLE OF CASES PAGE Crook V. Jadis, 5 B. & Ad. 909 ; 3 N. & M. 257 ; 6 C. & P. 191 ; 3 L. J. K. B. 87 469 Cropp V. Tilnev, 3 Salk. 226 256 Cropper v. Cook, L. R. 3 C. P. 194 ; 17 L. T. 603 ; 10 W. R. 596 . 542 Cross V. Eglin, 2 B. & Ad. 106 560 V. Watts, 13 C. B. N. S. 239 ; 32 L. J. M. C. 73 ; 9 Jur. N. S. 776; 7 L. T. 463; 11 W. R. 210 654 Grotty V. Hodges, 4 M. & Gr. 561 ; 5 Scott, N. R. 221 ; 11 L. J. C. P. 289 781, 782 Crouch V. Credit Foncier, L. R. 8 Q. B. 374 ; 42 L. J. Q. B. 183 ; 29 L. T. 259 ; 21 W. R. 946 . 457, 462, 463, 465, 466, 467, 539, 553 V. L. & N. W. R. Co., 7 Exch. 705 ; 21 L. J. Ex. 207 . . 204 V. , 14 C. B. 255 ; 7 Railvv. Cas. 717 ; 2 C. L. R. 188 ; 23 L. J. C. P. 73 ; 18 Jur. 148 ; 2 W. R. 166 . 199, 200, 204 Crowhurst v. Aniersliani, 4 Ex. D. 5 ; 48 L. J. Q. B. 109 ; 39 L. T. 355 ; 27 W. R. 95 824 Crowther v. Boult, 13 Q. B. D. 680 ; 32 W. R. 150 ; 49 J. P. 135 . 672 V. Farrer, 15 Q. B. 677 ; 20 L. J. Q. B. 298 ; 15 Jur. 535 . 339 L-. Ramslwttom, 7 T. R. 654 ; 4 R. R. 540 . . . . 497 V. Solomons, 6 C. B. 758 ; 18 L. J. C. P. 92 . . . 353 Crusoe v. Bugby, 3 Wils. 234 ; 2 W. Bl. 766 ... . 45, 47 Cullen V. Morris, 2 Staik. 577 284 Cumber v. Wane, 1 Str. 426 325, 327 Cuming v. Brown, 9 East, 506 ; 1 Camp. 104 ; 9 R. R. 603 . . 737 Cumniing v. Bedborough, 15 M. & W. 438 164 V. Shand, 5 H. & N. 95 ; 29 L. J. Ex. 129 . . . .559 Cunard v. Hyde, 2 E. & E. 1 ; 29 L. J. Q. B. 6 ; 6 Jur. N. S. 14 . 370 CundelH-. Dawson, 4C. B. 376; 17 L. J. C. P. 311 . . . .373 Cunningham, Re, 29 L. J. P. 71 323 Ciirlewis v. Chirk, 3 Exch. 375 ; 18 L. J. Ex. 144 ... . 337 V. Cortield, 1 Q. B. 814 ; 1 G. & D. 489 ; 6 Jur. 259 . . 354 Currie v. Nind, 1 My. & C. 17 ; 5 L. J. Ch. 169 30 Curtis, Ex 2}., 3 Q. B. D. 13 ; 47 L. J. M. C. 35 ; 37 L. T. 533 ; 26 W. R. 210 673 V. Hubbard, 1 Hills' N. Y. Rep. 337 108 Curven v. Milburn, 42 Ch. D. 424 ; 62 L. T. 278 ; 38 W. R. 49 . . 570 Cusack V. Robinson, 1 B. & S. 299 ; 30 L. J. Q. B. 261 ; 7 Jur. N. S. 542 ; 4 L. T. 506 ; 9 W. R. 735 727 Cuthbert v. Cumniing, 10 Exch. 809 ; 11 Id. 405 ; 3 C. L. R. 401 ; 24 L. J. Ex. 198, 310 ; 1 Jur. N. S. 686 ; 3 W. R. 244, 553 . 542, 547 Cuthbertson v. Irving, 4 H. & N. 742 ; 6 Id. 135 ; 28 L. J. Ex. 306 ; 29 Id. 485 ; 5 Jur. N. S. 740 ; 6 Id. 1211 ; 3 L. T. 335 ; 8 W. R. 704... 91— 96 Cutler V. N. London R. Co., 19 Q. B. D. 64 ; 56 L. J. Q. B. 648 ; 56 L. T. 639 ; 35 W. R. 575 ; 51 J. P. 774 . . . . 216 V. Powell, 6 T. R. 320 ; 3 R. R. 185 336 Czech V. Gen. St. Nav. Co., L. R. 3 C. P. 14 ; 37 L. J. C. P. 3 ; 17 L. T. 246 ; 16 W. R. 130 220 D. Daines v. 11. •all), 3 C. ]?. 938 ; 16 L. J. C. P. 117 ; 11 Jur. 185 . 784 L)akin v. Cope, 2 iluss. 170 43 Dale V. Hall, 1 Wils. 281 204 D'Allax V. Jones, 26 L. J. Ex. 79 ; 2 Jur. N. S. 979 . . . . 373 Dalton V. Angus, 6 A])]). (Jas. 740 ; 3 Q. B. D. 85 ; 4 Id. 162 ; 50 L. J. il B. 689 ; 44 L. T. 844 ; 30 W. R. 191 ; 46 J. P. 132.. .270, 830 V. S. E. R. Co., 4 C. n. N. S. 296 267 V. Whittem, 3 Q. B. 961 ; 3 G. <^ D. 260 ; 12 L. J. Q. B. 55 . 426 Dalv V. Dublin 11. Co., 30 L. ii. Ir. 514 267 1 r. Thompson, 10 M. (St W. 309 465 Dul^ell r. Tyrei-, 28 L. J. q. B. 52; 1 E. B. & E. 899 ; 5 Jur. N. S. 335 353 TO VOLUME I. PAGE Dancer v. Hastings, 4 Bing. 2 ; 12 Moore, 34 ... . 93, 52rf Dansey v. Richavclson, 3 E. & B. 144 ; 2 C. L. R. 1449 ; 23 L. J. Q. B. 217 ; 18 Jur. 721 125 D'A.iuila V. Lambert, 2 Eden, 75 ; Anib. 399 720 Darby v. Harris, 1 Q. B. 895 ; 1 G. & D. 234 ; 5 Jur. 988 . . 426 D'Arc V. L. & N. W. R. Co., L. R. 9 C. P. 325 ; 30 L. T. 763 ; 22 W. R. 919 218 D'Arcv V. Taniar R. Co., L. R. 2 Ex. 158 ; 36 L. J. Ex. 37 ; 14 L. T. 626'; 4 H. & C. 463 379 Darnell v. Trott, 2 C. & P. 82 287 Dartnall v. Howard, 4 B. & (J. 345 ; 6 D. & R. 438 . . . 185, 227 Darvill v. Terry, 6 H. & N. 807 ; 30 L. J. Ex. 355 . . . 13, 18 Daubnz v. Lavin^ton, 13 Q. B. D. 347 ; 53 L. J. Q. B. 283 ; 51 L. T. 206 ; 32 W. R. 772 516, 524 Daun V. City Brewery, 8 Eq. 155 ; 38 L. J. Ch. 454 ; 20 L. T. 601 ; 17 W. R."663 . " 559 Davenport v. Bishopp, 2 Y. & C. 451 29 V. Tlie Queen, 3 App. Cas. 115; 47 L. J. P. C. 8 ; 37 L. T. 727 38,39,41,42 Davey v. Chamberlain, 4 Esp. 229 191 V. L. & S. W. R. Co., 12 Q. B. D. 70 ; 11 Id. 213 ; 52 L. J. Q. B. 665 ; 53 Id. 58 ; 49 L. T. 739 . . . .276 V.' Shannon, 4 Ex. D. 81 ; 48 L. J. Ex. 459 ; 40 L. T. 628 ; 27 W. R. 599 305 David V. Ellice, 5 B. .^ C. 196 ; 7 D. & R. 690 ; 1 C. & P. 368 . . 333 Davidson v. Cooper, 11 M. & W. 778 ; 13 Id. 343 ; 1 D. & L. 377 ; 12 L. J. Ex. 467 ; 13 Id. 276 785, 786, 788 Davies v. Aston, 1 C. B. 746 ; 3 D. & L. 188 ; 14 L. J. C. P. 228 . 434 V. Davies, 36 Ch. D. 359 ; 56 L. J. Ch. 962 ; 58 L. T. 209 ; 36 W. R. 86 412, 414 V. Edwards, 7 Excli. 22 ; 21 L. J. Ex. 4 ; 15 Jur. 1014 . . 568 V. Humphreys, 6 M. & W. 153 ; 9 L. J. Ex. 263 ; 4 Jur. 250.. .151,152 V. Jenkins, 11 M. & W. 745 ; 1 D. & L. 321 ; 12 L. J. Ex. 386 260 V. Lowen, 64 L. T. 655 413 V. Mann, 10 M. & W. 546 ; 12 L. J. Ex. 10 ; 6 Jur. 954 . 275, 276 r. Moreton, 2 Ch. Ca. 127 ''1 >'. Powell, WiUes, 46 430, 431 V. Snead, L. R. 5 Q. B. 60S ; 39 L. J. Q. B. 202 ; 23 L. T. 126 263 V. Solomon, L. R. 7 Q. B. 112; 41 L. J. Q. B. 10 ; 25 L. T. 799 ; 20 W. R. 167 280 V. Williams, 10 Q. B. 725 ; 16 L. J. Q. B. 369 ; 11 Jur. 750 . 266 V. , 16 Q. B. 546 ; 20 L. J. Q. B. 330 ; 15 Jur. 752 . 134 Davis, Re, 22 Q. B. D. 193 ; 60 L. T. 156 ; 37 W. R. 141 . . . 520 , Re, 54 L. T. 304 ; 55 L. J. Q. B. 217 ; 34 W. R. 442 . . 432 V. Black, 1 Q. B. 900 ; 1 G. & D. 432 ; 10 L. J. Q. B. 338 ; 6 Jur. 55 231 V. Eyton, 7 Bing. 154 ; 4 M. & P. 820 . . . . 46, 47 V. Garrett, 6 Biiit,'. 716 ; 4 M. & P. 540 204 V. Howard, 24 Q. B. D. 691 ; 59 L. J. Q. B. 133 . . .550 V. James, 5 Burr. 2680 221 V. L. & Blackwall R. Co., 1 M. & Gr. 799 ; 2 Scott, N. R. 74 ; 2 Railw. Cas. 308 270 V. Mason, 5 T. R. 118 ; 2 R. R. 562 403, 407 V. Nest, 6 C. & P. 167 650 V. Scrace, L. R. 4 C. P. 172 ; 38 L. J. M. C. 79 ; 19 L. T. 789 ; 17 W. R. 411 ^^ 648, 651 V. Shepstone, 11 App. Cas. 187 ; 55 L. J. P. C. 51 ; 55 L. T. 1 ; 34 W. R. 722; 50 J. P. 709 264 V. Yale, 2 Lutw. 946 576 Davison v. Duncan, 7 E. & B. 229 ; 26 L. J. Q. B. 104 ; 3 Jur. N. S. 613 ; 5 W. R. 253 264 S.L.C. — VOL. I. C TABLE OF CASES PAGE Davison v. Gill, 1 East, 64 654 V. Wilson, 11 Q. B. 890 ; 17 L. J. Q. B. 196 ; 12 Jur. 647 . 134 Davys v. Douglas, 4 H. & N. 180 ; 28 L. J. M. C. 193 . . . 670 Dawes v. Peck, 8 T. R. 330 ; 3 Esp. 12 ; 4 R. R. 675 . . . .221 Dawkins v. Paulet, L. R. 5 Q. B. 94 ; 39 L. J. Q. B. 53 ; 21 L. T. 584 ; 18 W. R. 336 262. 284 V. Rokebv, L. R. 8 Q. B. 255 ; L. R. 7 H. L. 744 ; 42 L. J. Q. B. 63 ; 45 Id. 8 ; 28 L. T. 134 ; 33 Id. 196 ; 21 W. R. 544 ; 23 Id. 931 262, 284 Dawson v. Chamney, 5 Q. B. 164 ; 1 D. & M. 348 ; 13 L. J. Q. B. 33 ; 7 Jur. 1037 121, 123 V. Fitzgerald, 1 Ex. D. 257 ; L. R. 9 Ex. 7 ; 43 L. J. Ex. 19 ; 45 Id. 893 ; 29 L. T. 776 ; 35 Id. 220 ; 22 W. R. 162 ; 24 Id. 773 341 1'. Linton, 5 B. & AM. 521 ; 1 D. & R. 117 . . . .161 Dav, Ex p., 1 Cli. D. 699 ; 45 L. J. Bkcy. 53 ; 33 L. T. 867 ; 24 W. R. 492 370 V. Bather, 2 H. & C. 14 ; 32 L. J. Ex. 171 ; 9 Jur. N. S. 444 ; 8 L. T. 205; 11 W. R. 575 126 V. King, 5 A. & E. 359 ; 6 N. & M. 845 ; 2 H. & W. 178 . . 646 V. McLea, 22 Q. B. D. 610 ; 58 L. J. Q. B. 293 ; 60 L. T. 947 ; 37 W. R. 483 ; 53 J. P. 532 332 V. Muskett, 2 Ld. Raym. 985 ; 2 Salk. 640 ; 6 Mod. 80 . . 590 Dean v. Keate, 3 Camp. 4 ; 13 R. R. 735 191 De Begnis v. Armistead, 10 Bing. 107 ; 3 M. & Scott, 511 ; 2 L. J. C. P. 214 . . . ' 373 De Cosse Brissac v. Ratliboue, 6 H. & N. 301 ; 30 L. J. Ex. 238 . 641 Deering v. Winclielsea, 2 B. & P. 270 ; 1 Cox, 318 ; 1 R. R. 41 . 151 De Gondouin v. Lewis, 10 A. & E. 117 ; 2 P. & D. 283 ; 9 L. J. Q. B. 148 ; 3 Jur. 1168 109, 112 De Greuchy r. Wills, 4 C. P. D. 362 ; 48 L. J. C. P. 726 ; 41 L. T. 345 ; 28 W. R. 169 609 De Haber v. Queen of Portugal, 17 Q. B. 171 ; 20 L. J. Q. B. 488 ; 16 Jur. 164 626 Delaney v. Fox, 1 C. B. N. S. 166 ; 2 Id. 268 ; 26 L. J. C. P. 5, 248 ; 2 Jur. N. S. 1233 ; 5 W. R. 148 134, 504, 507 De La Vega v. Vianna, 1 B. & Ad. 284 616 Deniandray v. Metcalf, Prec. Clia. 419 ; 2 Vern. 690 . . . . 193 De Medina v. Grove, 10 Q. B. 152 ; 15 L. J. Q. B. 284 ; 17 Id. 321 ; 10 Jur. 426 ; 11 Id. 145 260 De Most re r. West, (1891) A. C. 264 ; 60 L. J. P. C. 66 ; 64 L. T. 375 ; 55 J. P. 613 28 Denbvi;. .Moore, 1 B. & Aid. 123 163 Dendy r. Niclioll, 4 C. B. N. S. 376 ; 27 L. J. C. P. 220 ; W. R. 502... 39, 44 De Nicliolls v. Saunders, L. R. 5 C. P. 589 ; 39 L. J. C. P. 297 ; 22 L. T. 661 ; 18 W. R. 1106 503 Dennis v. Loving, Hard. 424 ........ 48 Denny v. Thwaites, 2 Ex. D. 21 ; 46 L. J. M. C. 141 ; 35 L. T. 628 . 667 Dent V. Nic.kalls, 22 W. R. 218 ; 29 L. T. 536 ; 30 Id. 644 . . 559 V. Smith, L. R. 4 Q. B. 414 ; 38 L. J. Q. B. 144 ; 20 L. T. 868 ; 17 W. R. 646 608 Dc'rl>y'H (Countess of) Case, Keilwev, 202 579 l)t'Hl)r()we V. Wctherby, 1 M. & ]{ob. 438 ; 6 C. c^- P. 758 . . .782 J^ever, Ex j>., \H (,). ]',. ]). 660 ; 56 L. J. Q. V,. 552 ; 53 L. T. 131 . 609 Dewey ?•. liayntuu, 6 East, 257 ; 8 ]{. R. 475 13 Dickenson t-. Jlatlield, 1 M. & Rol). 141 ; 5 C. & P. 46 . . . 570 V. .laidine, L. H. 3 C. P. 639 ; 37 L. J. C. P. 321 ; 18 L. T. 717 ; 16 W. R. 1169 555 V. Watson, T. Jones, 205 ....... 442 Dickinson r. (iiand .liinctidii Canal Co., 7 Exch. 282 ; 21 L.J. Ex.241; 16 Jur. 5^00 273 TO VOLUME T. Die sou r. G. N. R. Co., 18 Q. B. D. 17G ; 56 L 868 ; 35 W. R. 202 V. Renter Co., 3 C. P. 1). 1 ; 2 Id. 62 ; J. Q. B. Ill ; 55 L. T. . 209, 213, 217, 218 46 L. J. C. P. 197 ; 47 Id. 23 1 ; 35 L. T. 842 ; 37 Id. 370 ; 25 W. R. 272 ; 26 Id. 222 266 276 646 Dillon V. Balfour, 20 L. R. Ir. 600 Dimes v. Petley, 15 Q. B. 276 ; 19 L. J. Q. B. 449 ; 14 Jur. 1132 Diiusdale v. Clarke, unreported ........ Diss U. S. Authority v. Aldrich, 2 Q. B. D. 179 ; 46 L. J. M. C. 183 ; 36 L. T. 663 Dixon V. Ikldwen, 5 East, 175 ; 7 R. R. 681 V. Bovill, 3 Maai. 1 ; 2 Jur. N. S. 933 ; 4 W. R. 813 . 455, V. Farrer, 18 Q. B. D. 43 ; 17 Id. 658 ; 56 L. J. Q. B. 53 ; 55 L. T. 578 ; 6 Asp. M. C. 52 ; 35 W. R. 95 ;). Fawcus, 30 L. J. Q. B. 137 ; 3 E. & E. 537 ; 7 Jur. N. S. 895 ; 3 L. T. 693 ; 9 W. R. 414 149, 155 r. Metrop. Board of Works, 7 Q. B. D. 418 ; 50 L. J. Q. B. 772 ; 45 L. T. 312 ; 30 W. R. 83 ; 46 J. P. 4 . V. Smith, 5 H. & N. 450 ; 29 L. J. Ex. 125 . V. Yates, 5 B. & Ad. 313 ; 2 N. & M. 177 ; 2 L. J. K. B. 198 670 464 600 828 281 Doble, "Ex p., 26 \V. R. 407 ; 38 L. T. Dobree v. Napier, 2 B. N. C. 781 ; 3 Dobson r. Collis, 1 H. & X. 81 ; 25 L. V. Es])ie, 2 H. & N. 79 ; 26 L. 5 W. R. 560 183 . Scott, 148, 729, 733 26 201 ; 5 L. J. C. P. 273 347 J. Ex. 267 ; 4 W. R. 512 J. Ex. 240 ; 3 Jur. N. S. 470 ; Dod y. Monger, 6 Mod. 215 Dodd V. Holme, 1 A. & E. 493 ; 3 N. & M. 739 . Dodge V. Pringle, 29 L. J. Ex. 115 . Dodson V. Weutworth, 4 M. & Gr. 1080 ; 5 Scott, N C. P. 59 ; 6 Jur. 1066 Doe V. Adams, 2 Tyr. 289 ; 2 C. & J. 232 ; 1 L. J. E V. Ball, 11 M. & W. 531 ; 12 L. J. Ex. 328 V. Bancks, 4 B. & Aid. 401 ; Gow. 220 V. Barton, 11 A. & E. 307 ; 3 P. & D. 194 ; 4 J Q. B. 57 V. Bateraan, 2 B. & Aid. 168 V. Batten, 1 Cowp. 243 ; 9 East, 314, n. ; 9 R. R V. Benson, 4 B. & Aid. 588 . V. Bevan, 3 M. cS; S. 353 ; 2 Rose, 456 V. Bingham, 4 B. & Aid. 672 .. . V. Birch, 1 M. & W. 402 ; T. & G. 769 ; 5 L. J V. Bliss, 4 Taunt. 735 V. Bottriell, 5 B. & Ad. 1 31 ; 2 N. & M. 64 ; 2 L V. Bristol & Exeter R. Co., 6 M. & W. 320 , V. Burdett, 9 A. & E. 936 ; 4 Id. 1 ; 6 N. & M. 259 386 ; 1 P. & D. 670 ; 6 L. J. K. B. 73 r. Butcher, 1 Dougl. 51 ... . V. Cadwallader, 2 B. & Ad. 473 . V. Carter, 8 T. R. 57, 300 ; 4 R. R. 586 V. Cutomore, 16 Q. B. 745 ; 20 L. J. Q. B. 364 • V. Clarke, 8 East, 185 ; 9 R. R. 402 . V. Cox, 11 Q. B. 122 ; 17 L. J. Q. B. 3 ; 11 Jur. r. Curwood, 1 H. & AV. 140 r. Davies, 7 Exch. 89 ; 16 Jur. 44 ; 21 L. J. Ex. I'. Dav, 2 Q. B. 147 ; 6 Jur. 913 ; 2 G. & D. 757 86 V. Duruford, 2 C. & J. 667 ; 1 L. J. Ex. 251 V. E.lwards, 5 B. & Ad. 1065 ; 3 N. & M. 193 1 M. & Rob. 319 X. 105 629 304 337 132 27a 783 470, n. R. 821 ; 12 L. J. 727 512 19, 23 41, 42 432 ; 9 L. J. . 507 . 98 38, 44 . 552 46, 47 . 786 37, 42 .34, 44, Ab 158 29, 30 649 &Gr. 321 41 509 46, 47 . 784, 785 . 47 . 517 37, 39 . 521 J. Q. B. . 513, 514, 515 45 6 C. & P. 208 ; . 503 c 2 185 k. B. ;6M. 991 . 60 .' ; 12 L. 'J'ABLE OF CASES Doe Evans, 9 A. & E. 719 ; 1 P. & D. 472 ; 8 L. J. Q. B. 212 Eykins, 1 C. & P. 154 ; E. & M. 29 . . . Eallows, 2 C. & J. 481 ; 2 Tyr. 460 ; 1 L. J. Ex. 177 Foni, 3 A. & E. 649 ; 5 N. & M. 209 ; 5 L. J. K. B. 25 Giles, 5 Bino-. 421 ; 2 M. & P. 749 . Gladwin, 6 Q. B. 953 ; 14 L. J. Q. B. 189 ; 9 Jur. 508 2 C. & J. 674 ; 1 L. J. Ex. 256 1 G. & D. 463 ; 10 L. J. Q. B. 275 504 Goldsmith, 2 Tyr. 710 Goidwin, 2 Q. B. 143 ; ; 16 L. J. Q. B. 435 ; 11 Jur. 892 M. & P. 132 & M. 145 ; 3 L. J. Ex. 17 . PAGE 47 37 22 363 513 . 45 . 512 . 350, 513, 514 509, 519 . 509 Goodier, 10 Q. B. 957 Hales, 7 Bing. 322 ; 5 Hare, 4 Tvr. 29 ; 2 C. & M. 145 ; 3 L. J. Ex. 17 . . . 165 Hawke, 2 East, 481 46 Hogg, 4 D. & E. 226 ; 1 C. & P. 160 46 James, 16 East, 212 26, 30 Johnson, 1 Stark. 411 40 Jones, 5 Exch. 498 ; 19 L. J. Ex. 405 ; 2 C. & K. 743 . . 45 Kensington, 8 Q. B. 429 ; 15 L. J. Q. B. 153 ; 10 Jur. 305 . 514 Laming, 4 Camp. 73 ; E. & M. 36 ; 15 E. E. 728 . . 46, 125 Lea, 11 East, 312 552 Lewis, 5 A. & E. 277 ; 6 N. & M. 764 ; 2 Har. & W. 162 ; 5 L. J. K. B. 217 33, 36, 37 Lewis, 13 M. & AV. 241 ; 2 D. & L. 667 ; 13 L. J. Ex. 200 ; 14 Id. 198 509 Lewis, 11 C. B. 1035 ; 20 L. J. C. P. 177 ; 15 Jur. 512 . 26, 27 Lightfoot, 8 M. & W. 553 ; 11 L. J. Ex. 151 ; 5 Jur. 966 . 513, 514, 515 Lloyd, 5 B. N. C. 741 ; 8 Scott, 93 ; 9 L. J. C. P. 83; 3 Jur. 751 389 Maisey, 8 B. & C. 767 ; 3 M. & Ev. 107 504 Manning, 9 East, 59 ; 9 E. E. 503 24 Marchetti, 1 B. & Ad. 715 62 Martyr, 1 B. & P. N. E. 332 29 Meiix, 4 B. & C. 606 ; 1 C. & P. 346 ; 7 D. & E. 98 . .37 Olley, 12 A. & E. 481 ; 4 P. & D. 275 ; 9 L. J. Q. B. 379 4 Jur. 1084 20 L. J. Q. B. 367 Palmer, 16 Q. B. 747 Peck, 1 B. & Ad. 428 Powell, 5 B. & C. 308 Pritchard, 5 B. & Ad. 15 Jur. 836 Doll 516 784 40, 45 ; 8 D. & E. 35 46 765 ; 2 N. & M. 489 ; 3 L. J. K. B. 11 39, 41, 43, 44 V. Eecs, 4 B. N. C. 384 ; 6 Scott, 161 ; Arn. 159 ; 7 L. J. C. P. 184 45 V. Eoberts, 2 B. & Aid. 367 389 V. Eolfe, 8 A. & E. 650 ; 7 L. J. Q. B. 251 30 V. Eowe, 4 B. N. C. 737 26 V. lUigeley, 6 Q. B. 107 ; 13 L. J. M. G. 137 ; 8 Jur. 615 . . 47 V. Eusliam, 17 Q. B. 723 ; 21 L. J. Q. B. 139 ; 16 Jur. 359 26, 27 V. Seaton, 2 G. M. & E. 728 ; Tyr. & G. 19 ; 1 Gale, 303 ; 5 L. J. Ex. 73 65 V. Smith, 5 Taunt. 795 ; 2 Eose, 280 ; 1 Marsh. 359 ; 15 E. E. 660 46, 47 V. Snowden, 2 AV. Bl. 1224 535 V. Stanlr, -1 T. E. 684 ; 1 E. E. 565 496 V. StillwelJ, H A. & E. 645 ; 6 Dow). 305 ; 2 Jur. 591 . . .551 V. Tom, 4 g. I'.. 615 ; 3 G. & D. 637 ; 12 L. J. (,). B. 264 ; 7 Jur. 847 517 V. Williiinis, 7 ('. & P. 322 40, 43 r. W(.(,d, 2 r.. & Aid. 724 43 V. W()0(ll)ri(lg.-, 9 B. & C. 37r, ; 1 I\L i^ Ivy. 302 .... 45 V. Worslcy, 1 Gam]). 19 ........ 45 hill r. Ayiward, ]>. H. 4 H. L. 486 25 TO VOLUME I. PAOE Don V. Lippmann, 5 CI. & F. 1 . . . . . . . . G17 Donald V. Suckliiiir, L. R. 1 Q. B. 585 ; 7 B. & S. 783 ; 35 L. J. Q. B. 232 ; 12 Jur. N.' S. 795 ; 14 L. T. 772 ; 15 W. K. 13 . . . 195 Donaldson v. Forster, Abb. on Shipi)., part 3, cap. 1 . . . . 541 Donellan v. Read, 3 B. & Ad. 899 ; 1 L. J. K. B. 269. 305, 30(5, 307, 507 Donelly v. Pophani, 1 Taunt, 1 ; 9 R. R. 887 350 Donovan v. Laing, (1893) 1 Q. B. G29 ; 63 L. J. Q. B. 25 ; 68 L. T. 512 ; 41 W. R. 455 ; 57 J. P. 583 ; 4 R. 317 353 Doolan V. Mid. R. Co., 2 App. Cas. 792 ; 37 L. T. 317 ; 25 W. R. 882 209, 213, 215, 221 Doorman v. Jenkins, 2 A. & E. 256 ; 4 N. & M. 170 ; 4 L. J. K. B. 29 174, 183, 184, 189 Doss V. Sec. of State for India, 19 Eq. 509 ; 32 L. T. 294 ; 2S W. R. 773 604, 626 Doughty V. Bowman, 11 Q. B. 444 ; 16 L. J. Q. B. 414 ; 17 Id. Ill ; 12 Jur. 182 66 Douglas V. Corbett, 6 E. & B. 511 ; 2 Jur. N. S. 1247 . . .261 Douglasse v. Waad, 1 Clia. C. 99 25 Doulson V. Matthews, 4 T. R. 503 ; 2 R. R. 448 . . . . 594, 602 Douse, Re, 31 L. J. R 172 ; 8 Jur. N. S. 723 ; 6 L. T. 789 . . . 324 Dowell V. General S. Navigation Co., 5 E. & B. 195 ; 26 L. J. Q. B. 59 ; a Jur. N. S. 800 ; 3 W. R. 492 276 Dowling V. Ford, 11 M. & W. 329 ; 12 L. J. Ex. 342 . . . . 566 Down V. Hailing, 4 B. & C. 330 ; 6 D. & R. 455 ; 2 C. & P. 11 . . 469 V. Hatcher, 10 A. & E. 121 ; 2 P. & D. 292 ; 3 Jur. 651 . . 331 Downes v. Richardson, 5 B. & Aid. 674 ; 1 D. & R. 332 . . .784 Downing 17. ChajMnan, 9 East, 414, n. . ...... 356 Dracachi v. Anglo-Egyptian Nav. Co., L. R. 3 C. P. 190 ; 37 L. J. C. P. 71 ; 17 L. T. 472 ; 16 W. R. 277 739 Drake, Ex p., 1 M. D. & De G. 539 46 Drapers' Co. v. Hadder, 57 J. P. 200 672 Drewe v. Cn niton, 1 East, 563, n. (a) ; 6 R. R. 346, n. . . . 284 Drinkwater v. Goodwin, 1 Cowp. 251 ....... 704 Duckworth r. Jolmson, 4 H. & N. 653 ; 29 L. J. Ex. 25 ; 5 Jur. N. S. 630 267 Dudgeon v. Pembroke, 22 W. R. 914 370 Dudley, In re, 12 Q. B. D. 44 ; 53 L. J. Q. B. 16 ; 49 L. T. 737 ; 32 W. R. 264 109 Duero, The, L. R. 2 A. & E. 393 ; 38 L. J. A. 69 ; 22 L. T. 37 . 210, 220 Dutiield v. Scott, 3 T. R. 374 150 Dugdale v. Lovering, L. R. 10 C. P. 196 ; 44 L. J. C. P. 197 ; 32 L. T. 155 ; 23 W. R. 391 155 Duignan v. Walker, Johns. 446 ; 28 L. J. Ch. 867 ; 5 Jur. N. S. 976 ; 7 W. R. 562 404 Dumper v. Synis, Cro. Eliz. 815 ........ 47 Dumpor's Case, 4 Co. Rep. 119 b. 31 Dunbar v. Roxburghe, 3 CI. & Fin. 335 255 Duncan v. Hill, L.' R. 8 Ex. 242 ; 6 Id. 255, 268, n. ; 40 L. J. Ex. 137 ; 42 Id. 179 ; 25 L. T. 59 ; 29 Id. 179 ; 19 W. R. 894 ; 21 Id. 797 550, 559 Dundas v. Dutens, 2 Cox, 235 ; 1 Ves. 196 ; 1 R. R. 112 . . . 27 Dungannon's Case, 12 Co. Rep. 120 248 Dunlo]) 0. Lambert, 6 CI. & F. 600 222 Dunn r. Birminghani Canal Co., L. R. 8 Q. B. 42 ; 42 L. J. Q. B. 34 ; 27 L. T. 683 ;' 21 W. R. 266 828 Durie v. Hopwood, 7 C. B. N. S. 835 ; 29 L. J. C. P. 151 ; 6 Jur. X. S. 705 601 Durnford v. Messiter, 5 M. & S. 446 141 Durrell v. Bederley, Holt N. P. 283 . . . 485, 487, 490, 491, 492 V. Evans, 1 H. & C. 174 ; 31 L. J. Ex. 337 ; 9 Jur. N. S. 104 ; 7 L. T. 97 ; 10 ^Y. R. 665 319, 322 TABLE OF CASES Dutcliman v. Tooth, 5 B. N. C. 577 ; 7 Scott, 710 Button V. Howell, Show. Pari. Gases, 24 ... . V. Soloinonson, 3 B. & P. 5B2 ; 7 R. R. 883 . V. Thompson, 23 Cli. D. 278 ; 52 L. J. Ch. 661 ; 49 L. T. 109 31 W. E. 596 Duvergier v. Fellowes, 10 B. & C. 826 ; 5 Bing. 248 ; 5 M. & P. 403 1 CI. & F. 39 Dye V. Leatherdale, 3 Wils. 20 Dver v. Green, 1 Exch. 71 ; 16 L. J. Ex. 239 . -^— V. Mnndav, (1895) 1 Q. B. 742 ; 64 L. J. Q. B. 448 ; 72 L. T 448 ; 43 W. R. 440 Dynevor i: Tennant, 13 App. Cas. 279 ; 32 Ch. D. 375 ; 33 Id. 420 55 L. J. Ch. 817 ; 57 Id. 1078 ; 54 L. T. 640 ; 55 Id. 424 ; 59 Id 5 ; 32 W. R. 737, 777 ; 37 Id. 193 PAGE . 140 577, 580 221 16 367 132 784 352 65 E. Eager v. Giimwood, 1 Exch. 61 ; 16 L. J. Ex. 236 . . . .266 Eagleton v. Gutteridge, 11 M. & W. 465 ; 2 Dowl. N. S. 1053 ; 12 L. J. Ex. 359 106, 775 Earle r. Maugham, 14 C. B. N. S. 626 ; 10 Jiir. N. S. 208 ; 8 L. T. 637 ; 11 W. R. 911 164 Easley v. Crockloid, 10 Bing. 243 ; 3 M. & Scott, 700 ; 3 L. J. C. P. 22 469 East India Co. v. Campliell, 1 Ves. sen. 246 575 V. Clave), Pr. Ch. 377 27, 28 Eastcouit V. AVeekes, 1 Lutw. 799 531 Easterbv r. Sampson, 9 B. & C. 505 ; 6 Bing. 644 ; 4 M. & P. 601 ; 1 C. & J. 105 66 Eastern Counties R. Co. v. Broom, 6 Excli. 314 ; 20 L. J. Ex. 196 ; 15 Jur. 297 351 Eastwood V. Kenyon, 11 A. & E. 438 ; 3 P. & D. 276 ; 9 L. J. Q. B. 409 ; 4 Jur. 1081 143, 289 V. Saville, 9 M. & W. 615 ; 11 L. J. Ex. 383 . . .569 Eaton v. Southby, Willes, 131 432 Ecclesiastical Commrs. v. Mcrral, L. R. 4 Ex. 162 ; 38 L. J. Ex. 93 ; 20 L. T. 573 ; 24 W. R. 252 . . . 309 t'. Treemer, (1893) 1 Ch. 166; 62 L. J. Ch. 119 ; 68 L. T. 11 ; 41 W. R. 166 ; 3 R. 136 62 Eddleston v. Francis, 7 C. B. N. S. 568 ; 3 L. T. 270 . . . . 648 Edger v. Knapp, 6 Scott, N. R. 707 ; 5 M. & Gr. 753 ; 1 D. & L. 73 ; 7 Jur. 583 152 Edie V. East India Co., 2 Burr. 1216 ; 1 W. Bl. 295 . . . 464, 539 Edmunds v. Wallingford, 14 Q. B. D. 811 ; 54 L. J. Q. B. 305 ; 52 L. T. 720 ; 33 W. R. 647 142,159 Edmundson, lie, 17 Q. B. 67 ; stth nom. R. v. Leeds & Bradford R. Co., 21 L. J. M. C. 193; 16 Jur. 817 656 Edwards v. Aherayron Soc, 1 Q. B. D. 563 ; 44 L. J. Q. B. 67 ; 31 L. T. 779 ; 34 Id. 457 ; 23 W. R. 304 . . . .341 V. Baugh, 11 M. (Si W. 641 ; 1 D. & L. 304 ; 12 L. J. Ex. 426 ; 7 Jur. 607 331 V. Brewer, 2 M. & W. 375 ; 6 J.. J. Kx. 135 ; 1 Jur. 432 . 720, 724, 727 V. Cliai)inan, 1 M. & W. 231 ; 4 Dowl. 732 ; 1 Gale, 376 ; 1 T. &(}. 481 ; 5 L. J. Ex. 139 3.36 r. Cock, 58 J. P. 398 666 V. Cooml.e, L. |{. 7 C. V. 510 ; 11 L. J. C. P. 202 ; 27 L. T. 315 ; 21 W. R. 107 335, 340 V. Haiicher, 1 C. P. D. 11 1 ; 33 L. T. 575 . . 335, 336, 340 r. llarhcn, 2 T. R. 587 ; 1 R. R. 5 IS . . . .11, 12, 14 TO VOLUAIE I. PAGi; Edwards y. Janes, 1 K. & J. 534 5GU V. L. & N. W. E. Co., L. R. 5 C. P. 445 ; 39 L. J. C. P. 241 ; 22 L. T. 656 ; 18 W. R. 834 352 V. Roberts, (1891) 1 Q. E. 302; 60 L. J. M. C. 6 ; 65 J. P. 439 671 11. Sherratt, 1 East, 604 202 Edwick V. Hawkes, IS Ch. D. 199 ; 50 L. J. Cli. 577 ; 45 L. T. 168 ; 29 W. R. 913 134 Egerton v. Brownlow, 4 H. L. C. 1 ; 1 Sim. N. S. 464 ; 20 L. J. Ch. 645 ; 23 Id. 348 ; 16 Jur. 26 ; 18 Id. 71 . . 136, 364 V. Mathews, 6 East, 307 ; 2 Smith, 389 ; 8 R. R. 489 . . 292 Egremont v. Keene, 2 Jones (Exch. Ir.) 307 90 Eicke V. Jones, 11 C. B. N. S. 631 ; 8 Jur. N. S. 843 . . . . 369 Elderton v. Einmens, 4 H. L. C. 624 ; 4 C. B. 479 ; 6 Id. 160 ; 13 Id. 495 ; 16 L. J. C. P. 209 ; 11 Jur. 612 ; 18 Id. 21 . . . 147, 148 Ehlridge v. Stacey, 15 C. B. N. S. 458 ; 10 Jur. N. S. 517 ; 9 L. T. 291 ; 12 W. R. 51 108 Eley V. Positive Assurance Co., 1 Ex. D. 20, 88 ; 45 L. J. Ex. 58 ; 33 L. T. 743 ; 24 W. R. 252 305 Ellesuiere Co. v. Cooper, (1896) 1 Q. B. 75 . . . . Add. 786 Elliot, £'x ?9., 2 Ch. D. 104 ; 45 L. J. Ch. 293 17 1). Johnson, L. R. 2 Q. B. 120 ; 36 L. J. Q. B. 44 ; 15 W. R. 253 59 V. Richardson, 39 L. J. C. P. 340 ; L. R. 5 C. P. 744 ; 22 L. T. 858; 18 W. R. 1157 136 Elliotson V. Feetham, 2 B. N. C. 134 ; 2 Scott, 174 ; 1 Hodges, 259 . 268 Elliott V. Kemp, 7 M. & W. 306 ; 10 L. J. Ex. 321 . . . . 344 Ellis V. Bridgnorth, 15 C. B. N. S. 52 ; 32 L. J. C. P. 273 ; 9 Jur. N. S. 1078 ; 8 L. T. 668 85 V. Hunt, 3 T. R. 464 ; 1 R. R. 743 721 1-. Loftus Iron Co., L. R. 10 C. P. 10 ; 44 L. J. C. P. 24 ; 31 L. T. 483 ; 23 W. R. 246 827 V. M'Henrv, L. R. 6 C. P. 228 ; 40 L. J. C. P. 109 ; 23 L. T. 861 ; 19 W. R. 503 618 V. Taylor, 8 M. & W. 415 ; 10 L. J. Ex. 462 ... . 130 Eiphinstone v. Bedreechund, 1 Knapp, P. C. 316 . . . . 629 Elsee V. Gatevvood, 5 T. R. 143 228 Elton V. Larkins, 5 C. & P. 385 ; 8 Bing. 198 ; 1 M. & Scott. 323 . 478, 492 Elves V. Crofts, 10 C. B. 241 ; 19 L. J. C. P. 385 ; 14 Jur. 855 . . 413 Elvis V. Archbishop of York, Hob. 315 243 Emery v. Clark, 2 C. B. N. S. 582 149 Empress Co., Re, 16 Ch. D. 125 ; 43 L. T. 742 ; 29 W. R. 342 . . 349 Enipson v. Bathurst, Hutton, 52 . . . . . . . . 256 Engel V. Stourton, 53 J. P. 535 784 England (Bank of) v. Anderson, 3 B. N. C. 589 ; 4 Scott, 50 ; 6 L. J. C. P. 158 255 V. Davidson, 11 A. & E. 856 ; 3 P. & D. 594 ; 9 L. J. Q. B. 287 ; 4 Jur. 1032 141 V. Marsden, L. R. 1 C. P. 529 : 35 L. J. C. P. 259 ; 12 Jur. N. 8. 706 ; 14 L. T. 405 ; 14 W. R. 650 . . .142 English & Scottish Co. r. Flatau, 36 W. R. 238 152 Englishman, The, (1894) P. 239 ; (1895) P. 212 ; 63 L. J. P. 133 ; 64 Id. 74 ; 70 L. T. 846 ; 72 Id. 203 ; 43 W. R. 62, 670 ; 6 R. 743 . 390 Era Ass. Soc, Ee, 2 J. & H. 400 ; 30 L. J. Ch. 137 ; 6 Jur. N. S. 1334 ; 3 L. T. 314 ; 9 W. R. 67 380 Erichsen v. Barkworth, 3 H. & N. 601, 894 ; 27 L. J. Ex. 472 ; 28 Id. 95 ; 5 Jur. N. S. 517 ; 7 W. R. 97 . . . . . . . 227 Ernest v. Nicholls, 6 H. L. C. 401 ; sub nom. Re Sea, Fire and Life Ass. Co., 5 De d. M. & G. 465 ; 24 L. J. Ch. 704 ; 2 W. R. 546 ; 6 Id. 24 ; 3 Jur. N. S. 919 375 Estwick D. Caillaud, 5 T. R. 420 17 European Mail Co. v. P. & O. Co., 14 W. R. 843 ; 14 L. T. 704 . . 15 TABLE OF CASES EvangeUstria, The, 2 P. D. 241 ; 46 L. J. A. 1 ; 35 L. T. 410 ; 25 W. II. 255 607 Evans v. Davies, 4 A. & E. 840 ; 2 H. & W. 15 ; 3 N. & P. 464 ; 6 L. J. K. B. 268 566 V. Davis, 10 Ch. D. 747 ; 48 L. J. Ch. 223 ; 39 L. T. 391 ; 27 W. R. 285 37, 44, 49 V. Duncan, 1 Tyr. 283 ; 1 C. & J. 372 301 V. Elliot, 5 A. & E. 142 ; 9 Id. 342 ; 2 H. & W. 231 ; 1 P. & D. 256 ; 6 L. J. K. B. 259 ; 8 Id. 51 . . 130, 133, 505, 506 V. Hoare, (1892) 1 Q. B. 593 ; 61 L. J. Q. B. 470 ; 66 L. T. 345 ; 40 W. R. 442 ; 56 J. P. 664 299, 320 V. Jones, 3 H. & C. 423 ; 34 L. J. Ex. 25 ; 11 L. T. 636 ; 11 Jur. N. S. 784 17 V. M. S. & L. R. Co., 36 Ch. D. 626 ; 57 L. J. Ch. 153 ; 57 L. T. 194 ; 36 W. R. 328 828 V. Martlett, 1 Raym. 271 ; 12 Mod. 156.. .680, 682, 687,697,705, 734 V. Mathias, 7 E. & B. 590 ; 26 L. J. Q. B. 309 . . . . 523 V. Powis, 1 Exch. 601 ; 11 Jur. 1043 . . . 334, 336, 337 V. Pratt, 3 M. & Gr. 759 ; 4 Scott, N. R. 378 ; 1 Dowl. N. S. 505 ; 11 L. J. C. P. 87 ; 6 Jur. 152 551 V. Rees, 12 A. & E. 167 ; 4 P. & D. 36 ; 9 L. J. Q. B. 317 ; 4 Jur. 1059 342 V. SmallcomLe, L. R. 3 H. L. 249 ; 37 L. J. Ch. 793 ; 19 L. T. 207 350 V. Thomas, Cro. Jac. 172 515 V. Wvatt, 43 L. T. 176 ; 44 J. P. 767 44 Eveljm V. Templer, 2 Bro. Ch. C. 148 24 Evershed v. L. & N. W. R. Co., 3 Q. B. D. 134 ; 2 Id. 254 ; 3 App. Cas. 1029 ; 46 L. J. Q. B. 289 ; 47 Id. 284 ; 48 Id. 22 ; 36 L. T. 12 ; 37 Id. 623 ; 39 Id. 306 ; 25 W. R. 411 ; 26 Id. 102, 863 . . 203 Every v. Smith, 26 L. J. Ex. 344 344 Exall V. Partridge, 8 T. R. 308 ; 3 Esp. 8 ; 4 R. R. 658 . . 142, 159 Eyles V. Faikney, 1 Peake, 195, n. ; 8 East, 172, n 390 Eyre V. Forbes, '12 C. B. N. S. 191 369 V. Shelley, 6 M. & W. 269 ; 10 L. J. Ex. 295 ; 5 Jur. 439 . . 375 F. Fairlie v. Denton, 8 B. & C. 395 ; 2 M. & Ry. 353 ; 3 C. & P. 103 . 140 Falcke v. Scottish, &c., Co., 34 Ch. D. 234 ; 56 L. J. Ch. 707 ; 56 L. T. 220 ; 35 AV. R. 143 142 Falk, Ex 2); 14 Ch. D. 446 ; 7 App. Cas. 573 ; 52 L. J. Ch. 167 ; 42 L. T. 780 ; 47 Id. 454 ; 28 W. R. 785 ; 31 Id. 125 ; 4 Asp. M. C. 280 ; 5 Id. 1 . . . . 722, 730, 731, 732, 733, 739, 742 V. Fletcher, 18 C. B. N. S. 403 ; 34 L. J. C. P. 146 ; 11 Jur. N. S. 176 ; 13 W. R. 346 725 Falkner v. Earle, 32 L. J. Q. B. 124 ; 3 B. & S. 360 ; 7 L. T. 672 ; 9 Jur. N. S. 847 ; 11 W. R. 307 542 Faliiioulli r. Roberts, 9 U. & W. 46!) ; 1 Howl. N. S. 633 ; 11 L. J. Ex. 180 786 V. Thomas, 1 C. & M. 89 ; 3 Tyr. 26 ; 2 L. J. Ex. 57 . . 308 Fancam v. booster. Skin. 326 ........ 304 Farley v. iJanks, 4 E. I't B. 493 ; 21 L. .1. (,). ]'.. 244 ; 1 Jur. N. S. 331 ; 3 W. I{. 173 265 Farm.doe v. B.iiii, I C. 1'. I). 11.") ; 45 L. .). ('. P. 264 ; 34 L. T. 324 . 742 Fanner r. KuhhcII, 1 B. & P. 296 386 Fariiwortli ?;. Packwood, 1 Stark. 219 ; Holt, N. P. 209 . . .121 Farrant?'. P,arneH, 31 \j. J. C. I*. 137 ; II C. B. N. S. 553 ; 8 Jur. N. S. 868 204, 230 TO VOLUME I. Farrer v. Nelson, 15 Q. B. D. 258 ; 54 L. J. Q. B. 385 ; 52 L. T. 7G6 33 W. R. 800 FaiTington v. Donolioe, 1 Ir. R. C. L. 675 . Faviell v. Gaskoin, 7 Exch. 273 ; 21 L. J. Ex. 85 Fawcett v. Fowlis, 7 B. & C. 394 V. Hall, Ale. & N. 248 . & Holmes, Re, 42 Ch. D. 150 ; 58 L. J. Ch. 763 ; 61 L. T PAGE 827 306 538 641 97 105 Fawkes v. Lamb, 31 L. J. Q. B. 98 ; 8 Jur. N. S. 385 ; 10 W. R. 348. 559 Fav 1'. Prentice, 1 C. B. 828 ; 14 L. J. C. P. 298 ; 9 Jur. 876 . . 273 Fearon v. Aylesford, 14 Q. B. D. 792 ; 12 Id. 539 ; 50 L.J. Q. B. 508 ; 54 Id. 33 ; 52 L. T. 954 ; 32 W. R. 718 ; 33 Id. 331 ; 49 J. P. 596 367 V. Bowers, 1 H. Bl. 364, n 693, 696, 697, 705 Feather v. The Queen, 35 L. J. Q. B. 200 ; 6 B. & S. 257 ; 12 L. T. 114 630 Featherston v. Hutchinson, Cro. Eliz, 199 372 Feilden v. Slater, 7 Eq. 523 ; 38 L. J. Ch. 379 ; 20 L. T. 112 ; 17 W. R. 485 87 Feise i;. Wray, 3 East, 93 ; 6 R. R. 551 724, 725 Fell V. Knight, 8 M. & W. 269 ; 10 L. J. Ex. 277 ; 5 Jur. 554 . . 125 Felthouse,i;. Bindley, 31 L. J. C. P. 204 ; 6 L. T. 157 ; 10 W. R. 423 301 Fenn v. Bittleston, 7 Exch. 152 ; 21 L. J. Ex. 41 . . . 191, 228 Fenner v. Meares, 2 W. Bl. 1269 771, 772 Fenton v. Emblers, 3 Burr. 1279 ; 1 W. Bl. 353 .... 304 V. Logan, 9 Bing. 676 ; 3 M. & Scott, 82 ; 2 L. J. C. P. 102... 429, 434 Fenwick v. Bell, 1 C. & K. 312 492 Feret v. HUl, 15 C. B. 207 ; 2 C. L. R. 1366 ; 23 L. J. C. P. 185 ; 18 Jur. 1014 ; 2 W. R. 493 374 Ferguson v. Kinnoull, 9 01. & F. 251 283, 284 Fergusson v. Norman, 5 B. N. C. 76 ; 6 Scott, 794 ; 3 Jur. 10 . . 373 Fernley v. Worthington, 1 IM. & Gr. 491 ; 1 Scott, N. R. 432 ; 10 L. J. M. C. 81 ; 4 Jur.^918 640 Ferrall v. Shaen, 1 Wms. Sauud. 292 369 Few V. Perkins, L. R. 2 Ex. 92 ; 36 L. J. Ex. 54 ; 16 L. T. 62 ; 15 W. R. 713 37 Ffytche v. Bishop of London, 1 East, 487 369 Field V. Adames, 12 A. & E. 649 ; 4 P. & D. 504 ; 4 Jur. 1033 . . 430 V. Lelean, 6 H. & N. 617 ; 30 L. J. Ex. 168 ; 7 Jur. N. S. 918 ; 4 L. T. 121 ; 9 W. R. 387 542 V. Megaw, L. R. 4 C. P. 660 140 Filburn v. People's Palace Co., 25 Q. B. D. 258 : 59 L. J. Q. B. 471 ; 55 J. P. 181 ; 38 W. R. 706 827, 828 Filliter v. Phippard, 11 Q. B. 347 ; 17 L. J. Q. B. 89 ; 12 Jur. 202 . 273, 799, 825 Filow's case, 12 Hen. 8, 3, pi. 3 430, 431 Finch V. Throgmorton, Cro. Eliz. 221 41 Findon v. M'Laren, 6 Q. B. 891 ; 14 L. J. Q. B. 183 ; 9 Jur. 369 . 428 V. Parker, 11 M. & W. 675 ; 12 L. J. Ex. 444 ; 7 Jur. 903 . 769 Fine Art Society v. Union Bank, 17 Q. B. D. 705 ; 56 L. J. Q. B. 70; 55 L. T. 536 ; 35 W. R. 114 ; 51 J. P. 69 . . . . 455, 466 Firth V. Bowling Iron Co., 3 C. P. D. 254 ; 47 L. J. C. P. 358 ; 38 L. T. 568 ; 26 W. R. 558 825 V. N. E. R. Co., 36 W. R. 467 201 V. Slingsbv, 58 L. T. 481 570 Fish V. Kelly, 17 C. B. N. S. 194 228 Fisher v. Bridges, 2 E. & B. 118 ; 3 Id. 642 ; 2 C. L. R. 928 ; 24 L. J. Q. B. 165 ; 1 Jur. N. S. 157 ; 1 W. R. 350 . 375, 376, 377 v. Fallows, 5 Esp. 171 ; 8 R. R. 843 149 V. Val de Travers Co., 1 C. P. D. 511 ; 45 L. J. C. P. 135 ; 35 L. T. 366 150 TABLE OF CASES VAGB Fishmongers Co. v. Robertson, 3 C. B. 970 ; 16 L. J. C. P. 118 . . 342 Fissington v. Hutchinson, 15 L. T. 390 279 Fitch V. Sutton, 5 East, 230 ; 1 Smith, 415 ... 326, 327, 328 Fitzerv. Fitzer, 2 Atk. 511 18 Fitzgerald v. Dressier, 7 C. B. N. S. 374, 392 ; 29 L. J. C. P. 113 ; 5 Jur. N. S. 598 ; 7 W. R. 190 288, 291 Fitzherheit v. Mather, 1 T. R. 12 ; 1 R. R. 134 477 Fitzjolm V. Mackinder, 9 C. B. N. S. 505 ; 30 L. J. C. P. 257 ; 7 Jur. N. S. 1283 ; 4 L. T. 149 ; 9 W. R. 477 265 Fitzmaurice v. Baylev, 6 E. & B. 868 ; 8 Id. 664 ; 9 H. L. C. 78 ; 3 Jur. N. S. 264 ; 4 Id. 506 ; 6 Id. 1215 ; 6 W. R. 125 ; 8 Id. 750 297, 350 Fivaz V. Nicholls, 2 C. B. 501 ; 15 L. J. C. P. 125 ; 10 Jur. 50 . . 387 Fleet V. Murton, L. R. 7 Q. B. 126 ; 41 L. J. Q. B. 49 ; 26 L. T. 181 ; 20 W. R. 97 291, 545, 556, 560 Fleetwood r. Hull, 23 Q. B. D. 35 ; 58 L. J. Q. B. 341 ; 60 L. T. 790 ; 37 W. R. 714 65 Fleming v. Hislop, 11 App. Cas. 686 268, 269 1 1,. M. S. & L. R. Co., 4 Q. B. D. 81 ; 37 L. T. 403 ; 39 Id. 555 ; 26 W. R. 741 ; 27 Id. 481 223 Fletcher v. Harcot, Hutt. 55 155 V. Rylands, L. R. 1 Ex. 265 ; L. R. 3 H. L. 330 ; 3 H. & C. 774 ; 4 Id. 263 ; 35 L. J. Ex. 154 ; 37 Id. 161 ; 11 Jur. N. S. 714 ; 12 Id. 603 ; 14 L. T. 523 ; 19 Id. 220 ; 13 W. R. 992 ; 14 Id. 799 273, 789 V. Smith, 2 App. Cas. 781 ; L. R. 7 Ex. 305 ; 41 L. J. Ex. 193 ; 47 Id. 4 ; 27 L. T. 164 ; 31 Id. 190 ; 37 Id. 367 ; 20 W. R. 987 ; 26 Id. 83 823 V. Sondes, 3 Ring. 501 369 Flight V. Gray, 3 C. B. N. S. 320 ; 27 L. J. C. P. 13 ; 4 Jur. N. S. 13 339 — -- V. Reed, 1 H. & C. 703 ; 32 L. J. Ex. 265 ; 9 Jur. N. S. 1016 ; 8 L. T. 638 144, 369, 377 V. Thomas, 10 A. & E. 590 ; 2 P. & D. 531 ; 7 Dowl. 741 ; 3 Jur. 822 269 Flockton V. Hall, 14 Q. B. 380 ; 16 Id. 1039 ; 19 L. J. Q. B. 4 ; 20 Id. 208 ; 14 Jur. 571 ; 15 Id. 600 337 Flood V. Jackson, (1895) 2 Q. B. 21 ; 64 L. J. Q. B. 665 ; 73 L. T. 161 ; 43 W. R. 453 ; 14 R 281 Flory V. Denny, 7 P:xch. 581 ; 21 L. J. Ex. 223 194 Flounders, Be", 4 B. & Ad. 865 ; 1 N. & M. 592 .. . . 659 Flower v. Adam, 2 Taunt. 314 . 275 V. Sadler, 10 Q. B. D. 572 ; 9 Id. 83 ; 46 J. P. 503 . . 365 Flowers v. S. E. R. Co., 16 L. T. 329 .206 Foakes v. Beer, 9 Ai)p. Cas. 605 ; 11 Q. B. D. 221 ; 52 L. J. Q. B. 426, 712 ; 54 Id. J 30 ; 51 L. T. 833 ; 33 W. R. 233 . 328, 330, 332, 335, 339 Foley r. Flelclic-r, 28 L. J. Ex. 100 ; 3 H. & N. 769 ; 5 Jur. N. S. 342 ; 7 W. R. 141 340 FolkestJ. Chadd, 3 Doug]. 157 491 Ford V. lieech, 11 Q. B. 842, 852 ; 5 D. & L. 610 ; 10 L. J. Q. B. 100 ; 17 Id. ri4 ; 11 Jur. 299 ; 12 Id. 310 339 -y. Brooke, Cro. Eliz. 261 598 i;. Hopkins, 1 Sails. 283 449,451,453 V. Hoskins, Cro. .lac. 368 : Moore, 842 ; 2 Bulstr. 330; 1 Roll. K(q.. 125 . 237, 238, 242 i;. Tynte, 31 J.. J. Ch. 177 430 V. YatcH, 2 M. k (Jr. .549 ; 2 Scott, N. R. 645 ; 10 L. .). C. P. 117 559 Foreman v. (i. W. R. Co., 38 L. T. 851 217 For..ter v. Taylor, 5 B. .V Ad. 887 ; 3 N. & M. 244 ; 3 L. J. K. B. 137 369 Forth V. Stanh-i!, ] Wm. Sauiid. (6th ed.) 210 ; 2 Keb. 465 ; 1 Lev. 202 ^SB, 291 Forward u. I'illanl, I T. R. 21; 1 R. R. 142 199 TO VOLUME I. PAGK Foster, Re, 6 Cli. D. 87 ; 46 L. J. Ch. 480 ; 36 L. T. 582 ; 25 W. R. 553 27 V. Bates, 12 M. & W. 226 ; 1 D. & L. 400 ; 13 L. J. Ex. 88 ; 7 Jur. 1093 350 V. ])a\v))er, G Excli. 839 ; 20 L. J. Ex. 385 . . . 337, 564 V. Framptnn, 6 B. & C. 107 ; 9 D. & R. 108 ; 2 C. & P. 469 727, 732 r. Green, 7 H. & N. 881 ; 31 L. J. Ex. 158 ; 6 L. T. 390. 452, 682 1-. Jackson, Hob. 52 113 V. Mentor Life Ass., 3 E. & B. 48 ; 23 L. J. Q. B. 145 ; 18 Jur. 827 ; 2 C. L. R. 1404 556 V. Rowland, 7 H. & N. 103 ; 30 L. J. Ex. 396 ; 7 Jur. N. S. 998 297 Foulger v. Steadman, L. R. 8 Q. B. 65 ; 42 L. J. AL C. 3 ; 26 L. T. 395 665 — V. Taylor, 5 H. «Si N. 202 ; 29 L. J. Ex. 154 ; 1 L. T. 481 ; 8 W. R. 279 432 Foulkes V. Met. Dist. R. Co., 5 C. P. D. 157 ; 4 Id. 267 ; 48 L. J. 0. P. 555 ; 49 Id. 361 ; 41 L. T. 95 ; 42 Id. 345 ; 28 W. R. 526 . 202, 224 Fowler v, Knoop, 4 Q. B. D. 299 ; 47 L. J. Q. B. 473 ; 48 Id. 333 ; 40 L. T. 180 ; 27 W. R. 299 740 V. Lock, L. R. 7 C. P. 272 ; 10 Id. 90 ; 41 L. J. C. P. 99 ; 26 L. T. 476 ; 31 Id. 844 ; 20 W. R. 672 ; 23 Id. 415 . . . .230 Fowles V. G. W. R. Qo., 7 Exch. 699 ; 22 L. J. Ex. 76 ; 7 Railw. Gas. 421 . V 208 Fox 1-. Bisliop of Chester, 6 Bing. 1 369 V. Nott, 6 H. & N. 630 ; 30 L. J. Ex. 259 ; 7 Jur. N. S. 663 . 739 ('. Scard, 33 Beav. 327 401 V. Swann, Styles, 482 47 Franipton v. Frampton, 4 Beav. 287 ; 5 Jur. 980 ... . 366 France v. Clark, 26 Cli. D. 257 ; 22 Id. 830 ; 52 L. J. Ch. 362 ; 53 Id. 585 ; 48 L. T. 185 ; 50 id. 1 ; 31 W. R. 374 ; 32 Id. 466 . 192, 466, 473 Francis, Ex. p., 56 L. T. 577 ; 6 Asp. M. C. 138 ; 4 M. B. R. 146 . 729 t'. Cockerell, L. R. 5 Q. B. 184, 501 ; 39 L. J. Q. B. 113, 291; 22 L. T. 203 ; 23 Id. 466 ; 18 W. R. 668, 1205 . 220, 230 V. Wyatt, 1 W. Bl. 483 ; 3 Burr. 1498 429 Franklin v. Xeate, 13 M. & W. 481 ; 14 L. J. Ex. 59 . . . . 194 V. S. E. R. Co., 3 H. & N. 211 ; 4 Jur. N. S. 565; 6 W. R. 573 267 Eraser v. Witt, 7 Ya^ 64 ; 19 L. T. 440 ; 17 W. R. 92 . . . 727 Fray v. Blackburn, 3 B. & S. 576 631 Frazer v. Jordan, 8 E. & B. 303 ; 26 L. J. Q. B. 288 ; 3 Jur. N. S. 1054 ; 5 W. R. 819 339 Freedom, Tlie, L. R. 3 P. C. 594 ; 38 L. J. A. 25 ; 24 L. T. 452 . . 739 Freeman y. Appleyard, 32 L. J. Ex. 175 ; 7 L. T. 282 . . . . 742 V. Bernard, 1 Salk. 69 ; 1 Ld. Raym. 247 . . . . 325 V. Birch, 3 Q. B. 492, n. ; 1 N. &"M. 420 ... . 222 V. Edwards, 2 Exch. 7o2 ; 17 L. J. Ex. 258 . . . . 519 V. Freeman, 2 Vern. 233 ; Eq. Ca. Ab. 87, pi. 9 ; Pre. Ch. 28 419 V. Pope, 9 Eq. 206 ; 5 Ch. 538 ; 39 L. J. Ch. 148, 689 ; 21 L. T. 816 ; 23 Id. 208 ; 18 W. R. 399, 906 . . 21, 22, 23 V. Rosher, 13 Q. B. 780 ; 18 L. J. Q. B. 340 ; 13 Jur. 881 . 351 Fremantle v. L. & N. AV. R. Co., 10 C. B. N. S. 89 ; 31 L. J. C. P. 12 ; 5 L. T. 550 ; 9 W. R. 611 825 French v. French, 6 De G. M. & G. 95 ; 25 L. J. Cli. 612 ; 2 Jur. N. S. 169 ; 4 W. R. 139 19, 20 V. Phillips, 1 H. & N. 564 ; 26 L. J. Ex. 82 ; 2 Jur. N. S. 1169; 5 W. R. 114 274 V. Styring, 2 C. B. N. S. 357 ; 26 L. J. C. P. 181 ; 3 Jur. N. S. 670 ; 5 W. R. 561 153 Frend v. Dennett, 4 C. B. N. S. 576 ; 27 L. J. C. P. 314 ; 4 Jur. X. S. 897 ; 5 L. T. 73 379 Freston, Re, 11 Q. B. D. 545 ; 52 L. J. Q. B. 545 ; 49 L. T. 290 ; 31 W. R. 804 109 TABLE OF CASES PAGE Freston, Ex p., 30 L. J. Ch. 460 ; 7 Jur. N. S. 402 ; 3 L. T. 832 ; 9 W. R. 321 114 Flicker c. Tomliiison, 1 M. & Gr. 772 302 Friere v. Woodliouse, Holt, N. P. 572 478 Fritz V. Hobson, 14 Ch. D. 542 ; 49 L. J. Cb. 321 ; 42 L. T. 225 ; 28 W. E,. 459 274 Fuentes •;;. Montis, L. E. 3 C. P. 268 ; 4 Id. 93 ; 37 L. J. C. P. 137 ; 38 Id. 95 ; 18 L. T. 21 ; 19 Id. 364 ; 16 W. R. 900 ; 17 Id. 208 . . 743 Fuller V. Redman, 26 Beav. 614 ; 29 L. J. Cb. 324 ; 5 Jur. N. S. 1046 571 Furley v. Wood, 1 Esp. 198 552 Furlong v. S. London Trams., 48 J. P. 329 ; C. & E. 316 . . . 352 Furness v. Meek, 27 L. J. Ex. 34 299 G. Gabarron v. Kreeft, L. R. 10 Ex. 274 ; 44 L. J. Ex. 238 ; 33 L. T. 365 ; 24 W. R. 146 736 Gabay v. Llovd, 3 B. & C. 763 ; 5 D. & R. 641 548 Gabriel v. Dresser, 15 C. B. 622 ; 3 C. L. R. 415 ; 24 L. J. C. P. 81 ; 3 W. R. 236 336 Gaban v. Lafitte, 3 Moo. P. C. 382 631 Gale V. Capern, 1 A. & E. 102 ; 3 N. & M. 863 ; 3 L. J. K. B. 140 . 568 V. Gale, 6 Cb. D. 144 ; 46 L. J. Cb. 809 ; 36 L. T. 690 ; 25 W. R. 772 28 V. Reed, 8 East, 80 ; 9 R. R. 376 405, 411 V. Williamson, 8 M. & W. 405 ; 10 L. J. Ex. 446 .. . 29 Gallin v. L. & N. W. R. Co., L. R. 10 Q. B. 212 ; 44 L. J. Q. B. 89 ; 32 L. T. 550 ; 23 W. R. 308 210 Gambier's Case, unreported ........ 594 Games, Exp., 12 Cb. D. 314 ; 40 L. T. 789 ; 27 W. R. 492, 744 . 17 Gandy v. Adelaide Ins. Co., L. R. 6 Q. B. 746 ; 40 L. J. Q. B. 239 ; 25 L. T. 742 478 V. Gandy, 30 Cb. D. 57 ; 54 L. J. Cb. 1154 ; 46 L. T. 607 ; 30 W. R. 673 140 Gardiner v. Williamson, 2 B. & Ad. 336 54 Gardner u. Walsh, 5 E. & B. 83 ; 24 L. J. Q. B. 285 ; 1 Jnr. X. S. 828 ; 3 W. IL 460 782, 783 Gargrave v. Smith, 1 Salk. 221 131, 132 Garnett v. Backhouse, L. R. 3 Q. B. 699 ; 9 B. & S. 306 ; 37 L. J. Q. B. 228 ; 19 L. T. 145 ; 16 W. R. 1203 . . .671 V. Ferrand, 6 B. & C. 611 283 Garrard v. Lewis, 10 Q. B. D. 30 ; 47 L. T. 408 ; 31 W. R. 475 . 472, 783 V. Woolner, 8 Bing. 258 ; 1 M. & Scott, 327 ; 4 C. & P. 471 . 334 Garside v. Trent Nav. Co., 4 T. R. 581 ; 2 R. R. 468 ... 199 Gas Light Co. v. Hardy, 17 Q. B. D. 619 ; 56 L. J. Q. B. 168 ; 55 L. T. 585 ; 35 W. R. 50 437 V. Turner, 5 B. N. C. 666 ; 6 Id. 324 ; 7 Scott, 779 ; 8 Id. 609 ; 9 L. J. C. P. 75 ; 9 Id. Ex. 336 373 Gaskellv. [h.'de V. Swan, 1 Exch. 154 ; 16 L. J. Ex. 284 . . . . 294 Gooch's Case, 5 (.'o. Rep. 60 22, 24 Goodr. Chceseman, 2B. & Ad. 328; 4C. &P. 513 . . . 334,336 r. Walker, 61 L. J. Q. B. 736 457 Goodman v. Jioycott, 2 B. & S. 1 ; 31 L. J. (,). P.. 69 ; S Jur. N. S 763 ; 6 L. T. 25 73 r. Chase, 1 B. & Aid. 297 288 r. Harvey, 4 A. & E. 870 ; 6 X. & M. 372 ; 6 L. J. K. B 260 . 469 ChM-diight r. Davids, 2 Cowj.. 803 . . ... 36,45 TO VOLUME I. PAOB Goodrightv. Moses, 2 W. Bl. 1019 24,25 Goodwin v. Cremer, 18 Q. B. 7'u ; 22 L. J. Q. B. 30 ; 17 Jur. 2 . 338 V. Barton, 41 L. T. 91 ; 42 Id. 568 568 V. Robarts, 1 App. Cas. 476 ; L. R. 10 Ex. 76,337 ; 44 L.J. Ex. 57, 157 ; 45 Id. 748 ; 32 L. T. 199 ; 33 Id. 272 ; 35 Id. 179 ; 23 W. R. 342, 915 ; 24 Id. 987 . . 457, 462, 465, 466, 540, 553 Goodwyn v. Clieveley, 4 H. & N. 631 ; 28 L. J. Ex. 298 ; 7 W. R. 631 827 Gordon v. Fluskey, 1 Arms. M. & 0. 155 279 V. G. W. R. Co., 8 Q. B. D. 44 ; 51 L. J. Q. B. 58 ; 45 L. T. 509 ; 30 W. R. 230 ; 46 J. P. 294 218 V. Harper, 7 T. R. 9 ; 4 R. R. 369 721 V. Silber, 25 Q. B. D. 491 ; 59 L. J. Q. B. 507 ; 63 L. T. 283 ; 39 W. R. Ill 125 Gorgier v. Mieville, 3 B. & C. 45 ; 4 D. & R. 641 . 456, 462, 463, 466 Gorris v. Scott, L. R. 9 Ex. 125 ; 43 L. J. Ex. 92 ; 30 L. T. 431 ; 22 W. R. 575 286 Gorrisen v. Perrin, 2 C. B. N. S. 681 ; 27 L. J. C. P. 29 ; 3 Jur. X. S 867 ; 5 W. R. 709 547 Gorst V. Lowndes, 11 Sim. 434 ; 10 L. J. Cli. 161 ; 5 Jur. 457 . . 420 Gorton v. Falkner, 4 T. R. 565 ; 2 R. R. 463 434 V. Gregory, 3 B. & S. 90 ; 31 L. J. Q. B. 302 ; 6 L. T. 656 ; 10 W. R. 7^3 ■^. Gosbell V. Arclier, 2 A. & E. 500 ; 4 N. & M. 485 ; 1 H. & W. 31 ; 4 L. J. K. B. 78 Goss V. Jackson, 3 Esp. 198 Gosset V. Howard, 10 Q. B. 359, 411 ; 14 L. J. Q. B. 367 ; 16 Id. 345 9 Jur. 842 ; 11 Id. 750 Gould, Ex 2}; 13 Q. B. D. 454 ; 51 L. T. 368 ; 1 M. B. R. 168 . ■V. Coombs, 1 C. B. 543 ; 14 L. J. C. P. 175 ; 9 Jur. 494 . 89 321 654 286 47 787 91 66 Gouldsworth v. Knights, 11 M. & W. 337 ; 12 L. J. Ex. 282 Gower v. Postmaster-General, 57 L. T. 527 .... Grace v. Wilmer, 6 E. & B. 982 ; 26 L. J. Q. B. 1 ; 3 Jur. N. S. 64 5 W. R. 47 600 Graeme v. Wroughton, 11 Ex. 146 ; 24 L. J. Ex. 265 ; 3 W. R. 509 . 369 Graetano & Uarm, The, 7 P. D. 137, 1 ; 51 L. J. P. 7, 67 ; 45 L. T 510 ; 46 Id. 835 ; 4 Asp. M. C. 470, 535 ; 30 W. R. 108, 766 608, 609, 622 Graham v. Gibson, 4 Exch. 768 ; 19 L. J. Ex. 204 .... 339 V. Massev, 23 Ch. D. 743 ; 52 L. J. Ch. 750 ; 48 L. T. 701 ; 32 W. R. 147 '. 603 Granger v. Collins, 6 M. & W. 458 ; 9 L. J. Ex. 172 . . . . 147 Grants. Maddox, 15 M. & W. 737 ; 16 L. J. Ex. 227 ... 550 V. Sec. of State for India, 2 C. P. D. 445 ; 46 L. J. C. P. 681 ; 37 L. T. 188 ; 25 W. R. 848 262, 630 V. Yaughan, 3 Burr. 1516 ; 1 W. BL 485 . . . . 455, 457 Grantham v. Gordon, 1 P. Wms. 612 400 V. Hawlev, Hob. 132 532 Gravely r. Barnard,' 18 Eq. 518 ; 43 L. J. Ch. 659 ; 30 L. T. 863 ; 22 W. R. 891 406, 407 Graves v. Key, 3 B. & Ad. 313 328 V. Legg, 2 H. & N. 210 ; 26 L. J. Ex. 316 ; 3 Jur. N. S. 519 ; 5 W. R. 597 550 Gray v. Cookson, 16 East, 13 641 V. Smith, 43 Ch. D. 208 ; 59 L. J. Ch. 145 ; 62 L. T. 335 ; 38 W. R. 310 302 Great Berlin Steamboat Co., Ee, 26 Ch. D. 616 ; 54 L. J. Ch. 68 ; 51 L. T. 445 3S8 G. N. R. Co. V. Inett, 2 Q. B. D. 284 ; 46 L. J. M. C. 237 ; 25 W. R. 584 671, 672 V. Morville, 21 L. J. Q. B. 319 : 7 Railw. Cas. 830 ; 16 Jur. 528 208 TABLE OF CASES PAGE G. N. R. Co. V. Shepherd, 8 Exch. 30 ; 21 L. J. Ex. 114, 286 ; 7 Railw. Cas. 310 201 V. Swaffield, L. R. 9 Ex. 132 ; 43 L. J. Ex. 89 ; 30 L. T. 562 225 V. Tavlor," L. R. 1 C. P. 385 ; Harr. & R. 471 ; 35 L. J. C. P. 210 ; 12 Jiir. N. S. 372 ; 14 L. T. 363 ; 14 W. R. 639 . . 223 G. W. R. Co. V. Ba<,^ge, 15 Q. B. D. 625 ; 54 L. J. Q. B. 599 ; 53 L. T. 225 ; 34 W. R. 45 222 V. Bunch, 13 App. Cas. 31 ; 17 Q. B. D. 215 ; 55 L. J. y. B. 427 ; 57 Id. 361 ; 55 L. T. 427 ; 58 Id. 128 ; 34 ^Y. R. 74, 574 ; 36 Id. 785 . . . .201 V. Crouch, 3 H. &N. 183 ; 2 Id. 491 ; 26 L. J. Ex. 418 ; 27 Id. 345 ; 3 Jur. N. S. 796 ; 4 Id. 457 ; 5 W. R. 831 ; 6 Id. 391 225 V. Goodman, 12 C. B. 313 ; 21 L. J. C. P. 197 ; 16 Jur. 862 205 r. McCarthy, 12 App. Cas. 218 ; 56 L. J. P. C. 33 ; 56 L. T. 582 ; 35 W. R. 429 ; 51 J. P. 582 . 215, 217, 218 r. Riniell, 18 C. B. 575 ; 27 L. J. C. P. 201 . . 209, 210 Green's Case, Cro. Eliz. 3 37, 39 Green v. Attenborou<,di, 3 H. & C. 468 ; 34 L. J. Ex. 88 ; 11 Jur. N. S. 786 601 140; 11 L. T. 513 ; 13 W. R. 185 V. Bennett, 54 L. J. Ch. 85 ; 50 L. T. 706 ; 32 W. R. 848 V. Chelsea Waterworks Co., 70 L. T. 547 . . . . 828, 829 V. Cresswell, 10 A. & E. 453 ; 2 P. & D. 430 ; 9 L. J. Q. B. 63 ; 4 Jur. 169 290 V. Humphreys, 26 Ch. D. 474 ; 23 Id. 207 ; 53 L. J. Ch. 625 ; 51 L. T. 42 570 V. James, 6 M. & W. 656 ; 10 L. J. Ex. 73 . . . . 70 V. Marsh, (1892) 2 Q. B. 330 ; 61 L. J. Q. B. 442 ; 66 L. T. 480; 40 W. R. 449 ; 56 J. P. 839 524 V. Price, 13 M. & W. 695 ; 16 Id. 346 ; 14 L. J. Ex. 105, 225 ; 16 Id. 108 ; 9 Jur. 880 .... 372,408,413,414 V. Saddington, 7 E. & B. 503 ; 3 Jur. N. S. 717 ; 5 W. R. 593 . 308 V. Sichel, 7 C. B. N. S. 747 ; 29 L. J. C. P. 213 ; 6 Jur. N. S. 827 ; 8 W. R. 663 729 Greenaway v. Adams, 12 Ves. 395 . 46 V. Hart, 14 C. B. 340 ; 2 C. L. R. 370 ; 23 L. J. C. P. 115 ; 18 Jur. 449; 2 W. R. 702 61,63 Greenland v. Chaplin, 5 Exch. 243 ; 19 L. J. Ex. 293 . . .277 Greenslade v. Tapscott, 1 C. M. & R. 59 ; 4 Tyr. 566 ; 3 L. J. Ex. 328 46 Gregory v. Piper, 9 B. & C. 591 ; 4 M. & Ry. 500 . . . .799 V. VV. Mid. R. Co., 2 H. & C. 944 ;' 33 L. J. Ex. 155 ; 10 Jur. N. S. 243 ; 10 L. T. 38 ; 12 W. R. 528 . . . . 216 V. Wilson, 9 Hare, 683 ; 22 L. J. Ch. 159 ; 16 Jur. 304 . 37 Gndl V. lA'.vy, 16 C. B. N. S. 73 ; 10 Jur. N. S. 210 ; 9 L. T. 721 ; 12 W. R. 378 605 Greville v. Attkins, 9 B. & C. 462 ; 4 M. & Ry. 372 . . . . 364 r. (Jhai)man, 5 Q. B. 731 ; U. & M. 553 ; 13 L. J. Q. B. 172 . 492 Grice V. Richards(,n, 3 App. Cas. 319 ; 47 L. J. P. C. 48 ; 37 L. T. 677 ; 26 W. R. 358 723 (irillin r. Tc.inkins, 42 L. T. 359 ; 44 J. P. 457 45 r. Weatlierhy, L. R. 3 Q. P.. 75:j ; 9 R. Sc S. 726 ; 37 L. J. (,). B. 280 ; IH L. T. 881 ; 17 W. R. 8 140 (irilliidKiolc V. Daiibuz, 5 E. & R. 7 16 ; 4 Id. 230 ; li I L. .1. g. R. 20 ; 2.-. Id. 237 ; 2 Jur. N. S. 392 ; 4 W. R. 131 . . 142, 159 (jrillitli r. IlarrieH, 2 M. & \V. ;i35 ; M. & II. 8 ; 6 L. J. M. C. 29 ; 1 Jnr. 57 640, 646 V. MatthewH, 5 T. R. 296 ; 2 R. R. 598 347 (irillitliH r. Lee, 1 C. & P. 110 222 V. Piileston, 13 M. & W. 359 ; 14 L. J. Ex. 33 . . .528 TO VOLUME I. PAGE Grill V. Gen. Iron Screw Co., L. R. 1 C. P. 600 ; 3 Id. 470 ; 35 L. J. C. P. 321 ; 37 Id. 205 ; 14 L. T. 711 ; 18 Id. 485 ; 14 W. R. 893 ; 16 Id. 796 186, 220 Griinwood v. Moss, L. R. 7 C. P. 360 ; 41 L. J. C. P. 239 ; 27 L. T. 268 ; 20 W. R. 972 40, 44 Grinnell v. Wells, 7 M. & Gr. 1033 ; 8 Scott, N. R. 741 ; 2 D. & L. 610; 14 L. J. C. P. 19; 8 Jur. 1101 266 Grissell v. Bristowe, L. R. 4 C. P. 36 ; 3 Id. 112 ; 37 L. J. C. P. 89 ; 38 Id. 10 ; 17 L. T. 564 ; 19 Id. 390 ; 16 W. R. 428 ; 17 Id. 123 166, 545, 549, 550 V. Robinson, 3 B. N. C. 10 ; 3 Scott, 329 ; 5 L. J. C. P. 313 142, 551 Grocers Co. v. Donne, 3 B. N. C. 34 ; 3 Scott, 356 ; 2 Hodges, 120 . 270 Groenvelt v. Burwell, 1 Salk. 396 ; 12 Mod. 386 ; 20 How. St. Tr. 203 ; 1 Raym. 454 577 Groome v. Forrester, 5 M. & S. .314 640 Guepratte v. Young, 4 De G. & S. 217 608 Guild V. Conrad, (1894) 2 Q. B. 885 ; 63 L. J. Q. B. 721 ; 71 L. T. 140 ; 42 W. R. 642 ; 9 R. 746 290 Gunmakers Co., v. Fell, Willes, 384 402 Gunn V. Bolckow, 10 Cli. 491 ; 44 L. J. Ch. 732 ; 32 L. T. 781 ; 23 W. R. 7^9 724, 742 Gunnis v. Erhart, 1 H. Bl. 289 ; 2 R. R. 769 313 Gurney, Re, 67 L. T. 598 728 V. Behrend, 3 E. & B. 622 ; 23 L. J. Q. B. 265 ; 18 Jur. 856 ; 2 W. R. 425 736, 740 Guy V. Churchill, 40 Ch. D. 481; 58 L. J. Ch. 345 ; 60 L. T. 473 ; 37 W. R. 504 371 Gwynne v. Burnell, 2 B. N. C. 7 ; 2 Scott, 16 ; 4 L. J. Ex. 340. . 382 H, Haddan v. Lett, 15 C. B. 411 ; 3 C. L. R. 144 ; 24 L. J. C. P. 49 . 281 Haigh V. Brooks, 10 A. & E. 309 ; 2 P. & D. 477 ; 3 Id. 452 ; 9 L. J. Q. B. 99 141, 294 Hailes v. Murks, 7 H. & N. 56 ; 30 L. J. Ex. 389 ; 7 Jur. N. S. 851 ; 4 L. T. 805 ; 9 W. R. 808 261 Hale, Exp., 1 Ch. D. 285 ; 45 L. J. Bkcy. 21 ; 33 L. T. 706 ; 24 W. R. 300 433, 434 V. Saloon Omnibus Co., 4 Drew, 492 ; 28 L. J. Ch. 777 ; 7 W. R. 316 13, 18 Halestrap v. Gregory, (1895) 1 Q. B. 561 ; 64 L. J. Q. B. 415 ; 72 L. T. 292 ; 43 W. R. 507 198, 278 Halifax Bank v. Gledhill, (1891) 1 Ch. 31 ; 60 L. J. Ch. 181 ; 03 L. T. 623 ; 39 W. R. 104 16, 28, 30 Union v. Wheelright, L. R. 10 Ex. 183 ; 44 L. J. Ex. 121 ; 32 L. T. 802 ; 23 W. R. 704 458 Hall V. Citv of London Brewery, 2 B. & S. 737 ; 31 L. J. Q. B. 257 ; 9" Jur. N. S. 18 161 V. Comfort, 18 Q. B. D. 11 ; 56 L. J. Q. B. 185 ; 55 L. T. 550 ; 35 W. R. 48 524 V. Ewin, 37 Ch. D. 74 ; 57 L. J. Ch. 95 ; 57 L. T. 831 ; 36 W. R. 84 m V. Featherstone, 3 H. k N. 284 ; 27 L. J. Ex. 308 ; 4 Jur. X. S. 813 472 V. Hall, 8 Ch. 430 ; 14 £([. 305 ; 41 L. J. Ch. 007 ; 27 L. T. 115 ; 28 Id. 383 ; 20 W. R. 797 16 V. Janson, 4 E. & B. 500 ; 3 C. L. R. 737 ; 24 L. J. Q. B. 77 ; 1 Jur. N. S. 571 542, 555 V. N. E. R. Co., L. R. 10 Q. B. 437 ; 44 L. J. g. B. 164 ; 33 L. T. 306 ; 23 \N\ R. 800 . 2-?4 S.L.C. — VOL I. d TABLE OF CASES PAGE Hall V. Palmer, 3 Hare, 532 ; 13 L. J. Cli. 353 ; 8 Jur. 459 . . 368 v. Potter, 3 Lev. 411 367 Hallett, Ee, 13 Ch. D. 696 ; 49 L. J. Ch. 415 ; 41 L. T. 186 ; 42 Id. 421 ; 28 W. R. 732 452 Hallev, The, L. R. 2 P. C. 193 ; L. R. 2 A. & E. 3 ; 37 L. J. A. 33 ; 18 L. T. 879 ; 16 W. R. 998 605 Halliday v. Holgate, L. R. 3 Ex. 299 ; 37 L. J. Ex. 174 ; 18 L. T. 656 193, 195, 196 Hamelin v. Brack, 9 Q. B. 306 ; 15 L. J. Q. B. 343 ; 10 Jur. 1094 . 781 Hamer v. Knowles, 6 H. & N. 454 ; 30 L. J. Ex. 102 ; 3 L. T. 746 ; 9 W. R. 615 270, 271 Hamilton v. Young, 7 L. R. Ir. 289 558 Hanilyn v. Talisker Distillery, (1894) A. C. 202 ; 71 L. T. 1 ; 58 J. P. 540 ; 6 R. 188 . . ." 609 Hammack v. White, 11 C. B. N. S. 588 ; 31 L. J. C. P. 129 ; 8 Jur. N. S. 796 ; 5 L. T. 676 ; 10 W. R. 230 798, 810 Hammersley v. De Biel, 12 CI. & F. 45 ; 3 Beav. 469 . . . 296, 309 Hammersmith R. Co. v. Brand, L. R. 4 H. L. 171 ; L. R. 1 Q. B. 130 ; 2 Id. 223 ; 1 B. & S. 1 ; 35 L. J. Q. B. 53 ; 36 Id. 139 ; 38 Id. 265 ; 12 Jur. N. S. 336 ; 13 L. T. 501 ; 16 Id. 101 ; 21 Id. 238 ; 14 W. R. 129 ; 15 Id. 437 ; 18 Id. 12 825, 828 Hammond r. Anderson, 1 B. & P. N. R. 69 ; 2 Camp. 243 ; 8 R. R. 763 730 v. Bussey, 20 Q. B. D. 79 ; 57 L. J. Q. B. 58 . . . 150 V. St. Pancras Vestry, L. R. 9 C. P. 316 ; 43 L. J. C. P. 157 ; 30 L. T. 296 ; 22 W. R. 826 828 Hamond r. Howell, 2 Mod. 218 ; 1 Id. 184 . . . . 236, 577 Hampshire v. Wickens, 7 Ch. D. 555 ; 47 L. J. Ch. 243 ; 38 L. T. 408 ; 26 W. R. 491 49 Hampson v. Fellows, 6 Eq. 575 ; 37 L. J. Ch. 694 . . . . 521 Hanljurv v. Cundv, 58 L. T. 155 401 1 ,,. Lovett, 16 W. R. 795 ; 18 L. T. 366 .... 781 Hannam v. Mockett, 2 B. & C. 934 432 Hanson r. Mever, 6 East, 614 ; 2 Smith, 670 ; 8 R. R. 572 . . 730 Hardcastle v. Howard, 2 T. R. 28, n 326, 327 Harden v. Clifton, 1 Q. B. 522 ; 1 G. & D. 22 ; 10 L. J. Q. B. 159 ; 5 Jur. 562 788 Harding v. Nott, 7 E. & B. 650 ; 26 L. J. Q. B. 244 ; 3 Jur. N. S. 1020 ; 5 W. R. 574 418 Hardnian v. Booth, 1 H. & C. 803 ; 32 L. J. Ex. 105 ; 9 Jur. N. S. 81 ; 7 L. T. 638 ; 11 W. R. 239 744 Hare v. Ehns, (1893) 1 Q. B. 604 ; 62 L. J. Q. B. 187 ; 68 L. T. 223 ; 41 W. R. 297 ; 57 J. P. 309 ; 5 R. 189 . . . .51 V. L. & N. W. R. Co., 2 J. & H. 80 ; 30 L. J. Ch. 817 ; Johns. 722 ; 7 Jur. N. S. 1145 ; 3 L. T. 289 ; 9 W. R. 33 .... 366 Hargreaves v. Diddams, L. R. 1(» Q. B. 582 ; 44 L. J. M. C. 178 ; 32 L. T. ()0() ; 23 W. R. 828 665 r. I'arsous, 13 M. & W. 561 ; 14 L. J. Ex. 250 . . . 289 V. 1'avlor, 32 L. J. M. C. Ill ; 3 B. & S. 613 ; 9 Jur. N. S. 1053 ; 8 L. T. 149 ; 11 W. R. 562 670 Haikcr r. liiikheck, 3 Burr. 1556 ; 1 W. Bl. 482 ... . 440 Harland 7-. Binks, 15 Q. B. 713 ; 20 L. J. Q. B. 126 ; 14 Jur. 979 . 17 Hi.rlcy V. King, 5 Tyr. 692 ; 1 Gale, 100 ; 2 C. M. & R. 18 ; 4 L. J. E.\. 144 70 Haiiiier v. Cornelius, 5 C. B. N. S. 236 ; 4 Jur. N. S. 1110 . . 185 Harms r. Parsons, 32 I'.eav. 328 ; 32 L. J. Ch. 247 ; 9 Jur. N. S. 145 ; 7L. T. 815; IIW. R. 250 411 Harper ?•. Charlesworth, 4 B. & C. 574 ; 6 1). & R. 572 . . .344 V. Marcks, (1894) 2 Q. B. 319 ; 63 L. J. M. (I 167 ; 70 L. T. 804 ; 42 W. U. 605 ; 58 J. P. 527 ; lO R. 335 .... 432 Harrij.gton r. Victoria Graving Docks, 3 Q. B. I). 549 ; 47 L. J. Q. B. 5!)4 ; 39 L. T. 120 ; 26 W. K. 740 372, 375 TO VOLUME I. Harris, Ex. p., 16 Q. B. D. 130 ; 55 L. J. M. C. 24 ; 53 L. T. 655 ; 34 W. R. 132 ; 50 J. P. Is7 HcIhcIi ■»). ( 'arriiigtnn, 5 C. & P. 171 ...... lleihy V. MalthewH, (1895) A. C. 471 ; (1894) 2 Q. B. 262 ; 63 L. J g. B. 577 ; 70 L. 'J\ 837 ; 42 VV. R. 514 ; 58 J. P. 785 ; 9 R. 707 746 207 328 342 144 436 263 266 220 21)5 727 542 TO ^'OLUME I. PAOK Hellavvell v. Eastwood, 6 Excli. 29.-) ; 20 L. J. Ex. 154 . . 426, 427 1 Keb. 679 . . . 69 743 601 551 823 501, 562 Ht-llier v. Casbard, 1 Si.l. 266 ; 1 Lev. 127 Helliiii,^s V. RussfU, 33 L. T. 380 Helliweli v. Hobson, 3 0. B. N. S. 761 Helps V. Clayton, 17 C. B. N. S. 553 ; 34 L. J. C. P. 1 ; 10 Jur. N. S 1184 ; 11 L. T. 476 ; 13 W. R. 161 Htilsliuvv V. Langley, 11 L. J. Ch. 17 Hemiiigs v. Robinson, Barnes, 436 Hemingway v. Fernandes, 13 Sim. 228 ; 12 L. J. Ch. 130 ; 7 Jur. 888 66 Henderson^;. Bioomliea.l, 4 H. & N. 569 ; 28 L. J. Ex. 360 ; 5 Jur. N. S. 1175 265 V. Comptoir D'Esconipte, L. R. 5 P. C. 253 ; 42 L. J. P. C. 60 ; 29 L. T. 192 ; 21 W. R. 873 .... 460 V. L. & N. W. R. Co., L. R. 5 Ex. 90 ; 39 L. J. Ex. 55 ; 21 L. T. 756 ; 18 W. R. 352 206 y. Stevenson, L. R. 2 H. L. Sc. 470 ; 32 L. T. 709 . . 208 V. Stobart, 5 Exch. 99 ; 19 L. J. Ex. 135 . . . . 338 V. Underwriting Ass., 65 L. T. 616, 732 ; 64 Id. 774 ; (1891) 1 Q. B. 557 ; 60 L. J. Q. B. 406 ; 39 W. R. 528 . . . 332 Henfree v. Bromlev, 6 East, 309 ; 2 Sniitli, 400 : 8 R. R. 491 . . 786 Hentig V. StannifoVth, 5 M. & S. 122 385 Herbert n Markwell, 45 L. T. 649 ; 46 J. P. 358 .... 123 V. Sayer, 5 Q. B. 965 ; 2 D. & L. 49 ; 12 L. J. Q. B. 286 ; 13 Id. 209 ; 8 Jur. 812 344 Herizi;. Riera, 11 Sim. 318; 10 L. J. Ch. 47 618 Herman v. Jeuchner, 15 Q. B. D. 501 ; 54 L. J. Q. B. 340 ; 53 L. T. 94 ; 33 W. R. 006 ; 49 J. P. 502 365, 387, 388 Herring v. Finch, 2 Lev. 250 237, 241, 240, 256 Hesketh v. Braddock, 3 Burr. 1847 393 Heugh V. L. &N. W. R. Co., L. R. 5 Ex. 51 ; 39 L. J. Ex. 48 ; 21 L. T. 676 225 Hewison v. Negus, 16 Beav. 594 ; 22 L. J. Uh. 655 ; 17 Jur. 445, 567 ; 1 W. R. 262 27 Hey V. Moorhouse, 6 B. N. C. 52 ; 8 Scott, 156 ; 9 L. J. C. P. 113 . 134 Heylin v. Hastings, 1 Salk. 29 ; 1 Ld. Raym. 389, 421 ; 1 Com. 54 ; 5 Mod. 426 ; 12 Id. 223 561,564 Hibbert v. Carter, 1 T. R. 745 ; 1 R. R. 388 . . 680, 700, 705, 734 nibble white v. McMorine, 6 M. & VV. 200 ; 9 L. J. Ex. 217 ; 4 Jur. 709 775 Hickman v. Cox, 18 C. B. 817 ; 3 C. B. N. S. 523 ; 9 Id. 47 ; 8 H. L. C. 268 ; 25 L. J. C. P. 277 ; 27 Id. 129 ; 30 Id. 125 ; 2 Jur. N. S. 884 ; 4 Id. 88 ; 4 W. R. 630 ; Id. 166 ; 8 Id. 758 17 V. Havnes, L. R. 10 C. P. 598 ; 44 L. J. C. P. 358 ; 32 L. T. 873 ; 23 W. R. 872 300 V. Machin, 4 H. & N. 716 ; 28 L. J. Ex. 310 ; 5 Jur. N. S. 576 •'308, 526 Hicks V. Faulkner, 8 Q. B. D. 167 ; 51 L. J. Q. B. 208 ; 46 L. T. 127 ; 30 W. R. 545 ; 46 J. P. 420 262 V. Powell, 4 Ch. 741 ; 17 W. R. 449 621 Hide V. Thornborough, 2 C. & K. 250 269 Higginsun v. Simpson, 2 C. P. D. 76 ; 46 L. J. C. P. 192 ; 36 L. T. 17 ; 25 W. R. 303 369 Hi-ham v. Ridgway, 10 East, 109 ; 10 R. R. 235 . . . . 569 Hill V. Barclay, 16 Ves. 402 ; 18 Id. 56 ; 11 R. R. 147 . . • 51 V. Bateman, 2 Str. 711 634 V. Bigge, 3 Moo. P. C. 465 585, 623 V. Exeter, 2 Taunt. 69 ; 11 R. R. 527 25 V. Royds, 8 Eq. 290 ; 38 L. J. Ch. 538 ; 20 L. T. 842 . . .140 V, Scott, (1895) 2 Q. B. 371, 713 119 V. Tupper, 2 H. & C. 121 ; 32 L. J. Ex. 217 ; 9 Jur. N. S. 725 ; 8 L. T. 792 345, 346 TABLE OF CASES PAGE Hilliard, Re, 2 D. & L. 919 ; 14 L. J. Q. B. 225 ; 9 Jur. 664 . . 301 Hilton V. Eckersley, 6 E. & B. 47, 66 ; 24 L. J. Q. B. 353 ; 25 Id. 199 ; 2 Jur. N. S. 587 ; 4 W. R. 326 364, 377, 415 Hinde v. Gray, 1 M. & Gr. 195 ; 1 Scott, N. R. 123 ; 9 L. J. C. P. 253 ; 4 Jur. 392 65, 403 Hindley v. Westmeath, 6 B. & C. 200 ; 9 D. & R. 351 . . .366 Hindmarsh v. Charlton, 8 H. L. C. 160 ; 7 Jur. N. S. 611 ; 4 L. T. 125 ; 9 W. R. 521 324 Hinton v. Dibbiu, 2 Q. B. 646 ; 2 G. & D. 36 ; 11 L. J. Q. B. 113 ; 6 Jur. 601 186, 205, 210 Hirschfield v. Smith, L. R. 1 C. P. 340 ; 35 L. J. C. P. 177 ; 12 Jur. N. S. 525 ; 14 L. T. 886 '; 14 W. R. 455 612, 782 HiLSchman v. Budd, L. R. 8 Ex. 171 ; 42 L. J. Ex. 113 ; 28 L. T. 602 ; 21 W. R. 582 781 Hitchcock r. Coker, 6 A. & E. 439 ; 1 N. & P. 796 ; 2 H. & W. 464 ; 6 L. J. Ex. 266 405, 406, 411 Hoad V. Grace, 7 H. & N. 494 ; 31 L. J. Ex. 98 ; 8 Jur. N. S. 43 ; 5 L. T. 359 ; 10 W. R. 85 295 Hoare v. G. W. R. Co., 25 W. R. 631 ; 37 L. T. 186 . . . . 218 Hobbs V. Dunce, L. R. 9 C. P. 30 ; 43 L. J. ]\1. C. 21 ; 29 L. T. 689 ; 22 W. R. 90 670 Hobson V. Thelluson, L. R. 2 Q. B. 642 ; 36 L. J. Q. B. 302 ; 16 L. T. 837 ; 15 W. R. 1037 274 Hockin v. Cooke, 4 T. R. 314 552, 553 Hodder V. AVilliams, (1895) 2 Q. B. 662 Add. 106 Hodgkinson v. Crowe, 10 Ch. 622 ; 19 Ec[. 591 ; 44 L. J. Ch. 238, 680 32 L. T. 144 ; 23 W. R. 406, 885 . . . .49 V. Ennor, 4 B. & S. 229 ; 32 L. J. Q. B. 231 ; 9 Jur. N. S 1152 ; 8 L. T. 451 ; 11 W. R. 775 . 273, 794, 797, 815 V. Fernie, 2 C. B. N. S. 415 ; 27 L. J. C. P. 66 . . 630 Hod Oman v. W. Mid. R. Co., 5 B. & S. 173 ; 6 Id. 560 ; 33 L. J. Q. B 233 ; 35 Id. 85 ; 10 Jur. N. S. 673 ; 10 L. T. 609 ; 12 W. R. 1054 13 Id. 758 212 Hodgson V. Johnson, E. B. & E. 685 ; 28 L. J. Q. B. 88 ; 5 Jur. N. S 290 308 V. Loy, 7 T. R. 440 ; 4 R. R. 483. . . . 720, 721, 727 V. Towning, 5 Dowl. 410 112 Hodkinson v. L. & N. W. R. Co., 14 Q. B. D. 228 ; 32 W. R. 662 201, 225 Hodson V. Terrill, 1 C. & M. 797 ; 3 Tyr. 929 ; 2 Dowl. 264 ; 2 L. J Ex. 282 Iloi^artli V. Latham, 3 Q. B. D. 643 ; 47 L. J. Q. B. 339 ; 39 L. T. 75 26 W. R. 388 Hogg t. Berrington, 2 F. & F. 246 Hoggins V. Gordon, 3 Q. B. 466 ; 2 G. & D. 656 ; 11 L. J. Q. B. 286 6 .lur. 895 Holliird V. Anderson, 5 T. R. 235 Holborn Union v. St. Leonards, 2 Q. B. D. 145 : 46 L. J. Q. B. 36 ; 35 L. T. 400 ; 25 W. R. 40 HohiaIVs Case, Dyer, 294b IJohlcr /•. Sonlbv, 8 (.'. B. N. S. 254 ; 29 L. J. C. P. 246 ; 2 L. T. 219 O.lur. N. S. 1031 ; 8 \V. R. 438 Ilohling r. Figott, 7 J5ing. 465 ; 5 M. & P. 427 . Hole V. Harlow, 4 C. 15. N. S. 334 ; 27 L. J. C. P. 207 ; 4 Jur. N. S 1019; 6 W. R. 619 ?•. Ifarrison, 1 (Iha. Ca. 246 Holland V. (Jolc, 1 II. & C. 67 ; 31 L. J. Ex. 481 ; 6 L. T. 503 ; 10 W. K. r,iy.i ; 8 Jur. N. S. 1066 V. Hodgson, L. ]{. 7 (.'. P. 328 ; 41 L. J. C. P. 146 ; 26 L. T 709 ; 20 W. R. 990 V. King, G C. I'.. 727 386 472 553 146 17 286 20 125 538 268 151 46 427 350 Hollin'.'slifad, /iV, 37 Ch. I). ^51 ; 57 L. .1. Ch. 100 ; .58 L. T. 758 ; 36 \V. H. 660 568 TO VOLUilE I. I'AOK Hollis V. Edwards, 1 Veni. 159 305 566 Holme V. Green, I Stark. 488 Holmes, Re, 2 J. & H. 527 ; 31 L. J. Cli. 58 ; 8 Jur. N. S. 76 ; 5 L. T, 548 ; 10 W. R. 39 . V. Buckley, 1 Abr. Eq. 2 V. Clarke, 6 H. & N. 349 ; 30 L. J. Ex. 135 ; 7 Jur. X. S 397 ; 3 L. T. 675 ; 9 Id. 178 ; 9 W. R. 419 . V. Mather, L. R. 10 Ex. 261 ; 44 L. J. Ex. 176 ; 33 L. T. 361 23 W. R. 869 442, 827 V. Mitchell, 7 C. B. N. S. 361 ; 28 L. J. C. P. 301 ; 6 Jur. N. S. 73 292, 297, 299 V. Newhinds, 5 Q. B. 367 ; 11 A. & E. 44 ; 3 P. & D. 128 9 L. J. Q. B. 19 V. Penney, 3 K. & J. 90 ; 26 L. J. Ch. 179 ; 3 Jur. N. S. 80 5 W. R. 132 V. The Queen, 31 L. J. Ch. 58 ; 2 J. & H. 527 ; 8 Jur. N. S 76 ; 5 L. T. 548 : 10 W. R. 39 . 603 78, 79 275 113 20 — V. Williamson, 6 M. & S. 158 Hoist V. Pownal, 1 Esp. 240 ; 2 B. & P. 461, n. . Holthausen, JEx j)., 9 Ch. 722 ; 44 L. J. Bk. 26 ; 31 L. T. 13 Home, Re, 54 L. T. 301 Homer 1?, Ashford, 3 Bing. 322 ; 11 Moore, 91 ... Hood V. Barrington, 6 Eq. 218 ...... Hooper v. Clark, L. R. 2 Q. B. 200 ; 36 L. J. Q. B. 79 ; 15 W. R. 347 „. Lane, 6 H. L. C. 443 ; 10 Q. B. 546 ; 17 L. J. Q. B. 189 27 Id. 75 ; 3 Jur. N. S. 1026 ; 6 W. R. 146 . . 11 V. Stephens, 4 A. & E. 71 ; 1 H. & W. 480 ; 5 N. & M. 635 7 C. & P. 260 ; 5 L. J. K. B. 4 - V. Treffry, 1 Exch. 17 ; 16 L. J. Ex. 233 591 152 732 609 27 403 298 65 2, 114 566 149 605 663 437 267 Hope V. Hope, 26 L. J. Ch. 417 ; 8 De G. M. & G. 731 ; 3 Jur. N. S 454 ; 5 W. R. 387 Hopkins, Re, E. B. & E. 100 ; 4 Jur. N. S. 529 . . . . 659, 663 V. De Robeck, 3 T. R. 79 ; 1 R. R. 650 .. . V. G. N. R. Co., 2 Q. B. D. 224 ; 46 L. J. Q. B. 265 ; 36 L. T 898 V. Logan, 5 M. & W. 241 ; 7 Dowl. 360 ; 8 L. J. Ex. 2] 8 147, 148 V. Prescott, 4 C. B. 578 ; 16 L. J. C. P. 259 ; 11 Jur. 562 . 369 Hopper V. Warburton, 32 L. J. Q. B. 104 ; 7 L. T. 722 ; 11 W. R. 384 649 Hornby v. Cardwell, 8 Q. B. D. 329 ; 51 L. J. Q. B. 89 ; 45 L. T. 781 ; 30 W. R. 263 151 Home V. Rouquette, 3 Q. B. D. 514 ; 39 L. T. 219 ; 26 W. R. 894... 61 2, 613 Horner v. Graves, 7 Bing. 735 ; 5 M. & P. 768 . . . 406, 407, 411 Horsford v. Webster, 5 tyr. 409 ; 1 C. M. & R. 696 ; 4 L. J. Ex. 100 434 Horsley v. Style, 69 L. T. 222 ; 58 J. P. 38 ; 4 R. 574 .. . 260 Horton v. Riley, 11 M. & W. 492 ; 13 L. J. Ex. 81 ... . 149 V. Saytir, 4 H. & N. 643 ; 29 L. J. Ex. 28 ; 5 Jur. N. S. 989 ; 7 W. R. 735 341 Houghton V. Matthews, 3 B. & P. 485 ; 7 R. R. 815 . . . . 704 Houlden v. Smith, 14 Q. B. 841 ; 19 L. J. Q. B. 170 ; 14 Jur. 59S (•.31, 657 House & Land Trust, Re, 1 Mansou, 148 ; 42 W. R. 572 ; 8 R. 232 . 433 Howard v. Fanshaw, (1895) 2 Ch. 581 Add. 51 V. Gosset, 10 Q. B. 359 286 V. , 1 Car. & K. 380 286 V. Harris, C. & E. 253 190 i\ Refuge Soc, 54 L. T. 644 384,388 v. Shepherd, 9 C. B. 297 ; 19 L. J. C. P. 249 .. . 739 V. Woodward, 34 L. J. Ch. 47 ; 10 Jur. N. S. 1123 ; 11 L. T. 414 ; 13 W. R. 132 401 Howden v. Haigh, 11 A. & E. 1033 ; 3 P. & D. 661 ; 9 L. J. Q. B. 198 ; 4 Jur. 821 372 TABLE OF CASES PAGE Howden v. Simpson, 10 A. & E. 793 ; 9 CI. & F. 61 ; 2 P. & D. 714, 731 ; 8 L. J. Q. B. 169 ; Id. Ex. 281 ; 1 Rail. Cas. 347 ; 3 Id. 294 365 Howe V. Synge, 15 East, 440 372 Howell V. White, 1 M. & Eob. 400 344 , Re, (1895) 1 Q. B. 844 ; 64 L. J. Q. B. 454 ; 72 L. T. 472 ; 43 W. R. 447 433 Howes V. Martin, 1 Esjx 162 287 Howkins v. Bennet, 7 C. B. N. S. 507 ; 30 L. J. C. P. 193 ; 6 Jur. N. S. 1152; 1 L. T. 297 369 Howson V. Hancock, 8 T. R. 575 384, 386 Hoyle, Ee, (1893) 1 Ch. 84 ; 62 L. J. Ch. 182 ; 67 L. T. 674 ; 41 W. R. 81 ; 2 R. 145 290, 299, 300 Huber v. Steiner, 2 B. N. C. 202 ; 2 Scott, 304 ; 1 Hodges, 206 ; 2 Dowl. 781 616 Hubert V. Moreau, 2C. &P. 528 ; 12 Moo. 216 323 V. Treherne, 3 M. & Gr. 743 ; 4 Scott, N. R. 486 ; Car. & M. 351 ; 11 L. J. C. P. 78 ; 6 Jur. 194 299, 321 Hudson V. Baxendale, 2 H. & N. 575 ; 27 L. J. Ex. 93 ; 6 W. R. 83 . 225 V. Clementson, 18 C. B. 213 ; 25 L. J. C. P. 234 . . . 547 V. Grainger, 5 B. & Aid. 27 704 V. MacRae, 4 B. & S. 585 ; 33 L. J. M. C. 65 ; 9 L. T. 678 ; 12 W. R. 80 665 V. Tabor, 2 Q. B. D. 290 ; 1 Id. 225 ; 45 L. J. Q. B. 190 ; 46 Id. 463 ; 34 L. T. 249 ; 36 Id. 492 ; 24 W. R. 579 ; 25 Id. 740 . 266 Hudston V. Mid. R. Co., L. R. 4 Q. B. 366 ; 38 L. J. Q. B. 213 ; 20 L. T. 526 ; 17 W. R. 705 202 Hufi'er r. Allen, L. R. 2 Ex. 15 ; 4 H. & C. 634 ; 36 L. J. Ex. 17 ; 12 Jur. N. S. 930 ; 15 L. T. 225 ; 15 W. R. 281 261 Hughes ('. G. W. R. Co., 14 C. B. 637 ; 2 C. L. R. 1360 ; 23 L. J. C. P. 153 ; 18 Jur. 1001 200 V. Palmer, 19 C. B. N. S. 393 ; 34 L. J. C. P. 279 ; 11 Jur. N. S. 876 ; 12 L. T. 635 ; ]3 W. R. 974 .. . 42 V. Percival, 8 App. Cas. 443 ; 52 L. J. Q. B. 719 ; 49 L. T. 189 ; 31 W. R. 725 ; 47 J. P. 772 830 r. Smallwood, 25 Q. B. D. 306 ; 59 L. J. Q. B. 503 ; 63 L. T. 198 432 V. AVavertree L. B., 58 J. P. 654 673 Hull V. Pickersgill, 1 B. & B. 282 ; 3 Moore, 612 ... . 350 Hulme V. Tenant, 1 Bro. C. C. 16 ; 2 Dick. 560 417 Hulse V. Hulse, 17 C. B. 711 ; 25 L. J. C. P. 177 ; 4 W. R. 239. . 144 liuml)ertson. Be, 1 De G. 262 ; 2 M. D. & D. 654 ; 11 L. J. Bkcy. 15 ; 8 Jur. 675 '. . 724 Humfrey v. Dale, 7 E. & B. 266 ; E. B. & E. 1004 ; 26 L. J. Q. B. 137 ; 27 Id. 390 ; 3 Jur. N. S. 213 ; 5 Id. 191 ; 5 W. R. 466 ; 6 Id. 854 539, 543, 555, 556, 557, 560 Humphreys v. Welling, 1 H. & C. 7 ; 32 L. J. Ex. 33 ; 6 L. T. 250 . 370 IIum])hries v. Cousins, 2 C. P. D. 239 ; 46 L. J. C. P. 438 ; 36 L. T. 180; 25 W. li. 371 826 Humplirys v. Pratt, 2 Dow. &; CI. 288 ; 5 Bligh, N. S. 154 . . 155 Hungerlonl v. Karle, 2 Veni. 261 20 ILuntv. I'.at.', Dyer, 272 a 137 V. liishop, H Exch. 675 ; 22 D. .1. Ex. 337 37 1'. Dowiiian, (/'ro. Jac. 478 ........ 254 V. <;. N. I{. Co., (1891) 2 Q. B. 189 ; 60 I.. .1. Q. P.. 498 ; 55 J. P. CAH 262 V. Iloojier, 12 M. I't W. 664 ; 1 1). ^^ Iv. 626 ; 13 L. J. Ex. 183 ; H .liir. 203 19 V. Hunt, 31 I.. .1. Ch. 161 ; 8 Jur. N. S. 15, 85 ; 5 L. T. 412, 778 ; ]0 W. R. 161, 215 366 -'. Rciimarit, 9 Exch. 635; 23 !.. J. K.\. 135; 18 Jur. 335; 2 W. U. 276 37 TO VOLUME I. PAGE Hunt V. WimMedon L. B., 3 C. P. D. 208 ; 4 Id. 48 ; 48 L. J. V. P. 207 ; 39 L. T. 35 ; 26 W. R. 830 ; 27 Id. 123 . . . . 379 Hunter •?;. Hunt, 1 C. B. 300 ; 14 L. J. C. P. 113 ; 9 Jur. 375 . . 156 v. M'Gowan, 1 Bligh, 573 219 V. Parker, 7 M. & W. 322 ; 10 L. J. Ex. 281 . . . . 350 Huntington v. Attrill, (1893) A. C. 150 ; 62 L. J. P. C. 44 ; 68 L. T. 326 ; 41 W. 11. 575 ; 57 J. P. 404 575, 608 Huntley V. Bedford Hotel, 56 J. P. 53 123,124 V. Ward, 6 C. B. N. S. 514 ; 6 Jur. N. S. 18. . . . 263 Hurdman v. N. E. R. Co., 3 C. P. D. 168 ; 47 L. J. C. P. 368 ; 38 L. T. 339 ; 26 W. R. 489 823 Hurry v. Mani,des, 1 Camp. 452 ; 10 R. R. 727 727 Husl)and v. Davis, 10 C. B. 645 ; 2 L. M. & P. 50 ; 20 L. J. C. P. 118 341 Hussey v. Horne-Pavne, 4 App. Cas. 311 ; 8 Ch. D. 670 ; 47 L.J. Ch. 519, 751 ; 48 Id. 846 ; 38 L. T. 341, 543 ; 41 Id. 1 ; 26 W. R. 532, 703 ; 27 Id. 585 302 Hutcheson v. Eaton, 13 Q. B. D. 861 ; 51 L. T. 846 . . . . 558 Hutchins v. Chambers, 1 Burr. 579 434 V. Scott, 2 M. & W. 809 ; M. & H. 194 ; 6 L. J. Ex. 186 ; 1 Jur. 265 786, 787 Hutchinson v. Birch, 4 Taunt. 619 ; 13 R. R. 703 . 105, 106, 107, 109 • — , V. Bowker, 5 M. & W. 535 545, 560 V. Guion, 5 C. B. N. S. 149 ; 28 L. J. C. P. 63 ; 4 Jur. N. S. 1149 ; 6 W. R. 757 204 V. Sydney, 10 Exch. 438 ; 3 C. L. R. 175 ; 24 L. J. Ex. 25 ; 3 W. R. 65 161 V. Tatham, L. R. 8 C. P. 482 ; 42 L. J. C. P. 260 ; 29 L. T. 103 ; 22 AV. R. 18 545, 556, 560 Hutlev V. Hutley, L. R. 8 Q. B. 112 ; 42 L. J. Q. B. 52 ; 28 L. T. 63 ; 21 W. R. 479 371 Hutton V. Eyre, 6 Taunt. 289 152 V. Parker, 7 Dowl. 739 406, 407 V. Warren, 1 M. & W. 466 ;, 2 Gale, 71 ; 1 T. & G. 646 ; 5 L. J. Ex. 234 535, 536, 537, 538 Hyde v. Trent Nav. Co., 5 T. R. 389 ; 2 R. R. 620 . 124, 199, 224, 226 V. Warden, 3 Ex. D. 72 ; 47 L. J. Ex. 121 ; 37 L. T. 567 ; 26 W. R. 201 48, 49 V. Watts, 12 M. & W. 254 ; 1 D. & L. 479 ; 13 L. J. Ex. 41 . 42 Hyman v. Helm, 24 Ch. D. 531 ; 49 L. T. 376 ; 32 W. R. 258 . . 623 V. Nye, 6 Q. B. D. 685 ; 44 L. T. 919 ; 45 J. P. 554 . . 230 I. ILLINGWORTH V. Bulmer East H. B., 53 L. J. M. C. 00 ; 52 Id. 680 ; 48 J. P. 37 ; 32 W. R. 451 660 imperial Bank v. L. & St. K. Dock Co., 5 Ch. D. 195 ; 46 L. J. Ch. 335 ; 36 L. T. 233 . . . . 1 54, 545, 724, 725, 730 Land Co., Re, 11 Eq. 478 ; 40 L. J. Ch. 93, 343 ; 23 L. T. 515 ; 24 Id. 255 ; 19 W. R. 223 467 Imray v. Magnay, 11 M. & W. 267 ; 2 Dowl. N. S. 531 ; 12 L. J. Ex. 188; 7 Jur. 240 19,23,24 India (Sec. of State for) v. Kamachee Boye Sahaba, 13 Moo. P. C. 22 350, 629, 630 ladus. The, 12 P. D. 46 ; 56 L. J. P. 88 ; 56 L. T. 376 ; 6 Asp. M. C. 105 ; 35 W. R. 490 219 lodustrie. The, (1894) P. 58 ; 63 L. J. P. 84 ; 70 L. T. 791 ; 42 W. R. 280 ; 6 R. 681 609 logate V. Christie, 3 Car. & K. 61 199 Ingham v. Primrose, 7 C. B. N. S. 82 ; 28 L. J. C. P. 294 ; 5 Jur. N. S. 710 472 TABLE OF CASES VAGK Inglis V. De Barnard, 3 Moo. P. C. 425 351 r. Usherwood, I East, 515 721 lona. The, L. E. 1 P. C. 426 ; 4 Moo. P. G. N. S. 336 ; 16 L. T. 158 . 219 lonides v. Pender, L. E. 9 Q. B. 531 ; 43 L. J. Q. B. 227 ; 30 L. T. 547 ; 22 W. E. 884 493 Ireland v. Hig^nns, Cro. Eliz. 125 431 Irons V. Smallpiece, 2 B. & Aid. 551 148 Irvine v. Union Bank of Australia, 2 App. Gas. 366 ; 46 L. J. P. G. 87 ; 37 L. T. 176 ; 25 W. E. 682 . 350 Irving V. Veitch, 3 M. & W. 90 ; Mur. & H. 313 ; 7 L. J. Ex. 25 . 567 Isaack v. Clark, 2 Bulst. 306 ; 1 EoUe, 59, 126 . . . . 190, 194 Isaacson, Re, (1895) 1 Q. B. 333 ; 64 L. J. Q. B. 191 ; 71 L. T. 583, 812 ; 43 W. E. 128, 278 372 Isherwood, Ex p., 22 Ch. D. 384 ; 52 L. J. Ch. 370 ; 46 L. T. 539 . 527 V. Oldknow, 3 M. & S. 382 60, 63 Islington (InJiabitants of) Gase, Co. Lift. 3 a, n. 3 . . . . 248 Israel v. Douglas, 1 H. Bl. 239 773 Jackson, Exp., 14 Ch. D. 725 ; 43 L. T. 272 ; 29 W. E. 253 . . 521 V. Cobbin, 8 M. & W. 790 ; 1 Dowl. N. S. 96 ; 10 L. J. Ex. 389 147, 375 V. Kidd, 29 L. J. G. P. 221 ; 8 C. B. N. S. 354 ; 6 Jur. N. S. 1094, 1117 601 V. Lowe, 1 Bing. 9 ; 7 Moore, 219 296 V. Eogers, 2 Sliow. 327 202 V. S]nttall, L. E. 5 C. P. 542 ; 39 L. J. C. P. 321 ; 22 L. T. 755 ; 18 W. E. 1162 603 V. Warwick, 7 T. E. 121 375 Jacob V. Hart, 6 M. & S. 142 ; 2 Stark. 45 783 V. Kirk, 2 M. & Eob. 221 322 Jacobs V. Credit Lyonnais, 12 Q. B. D. 589 ; 53 L. J. Q. B. 156 ; 49 L. T. 39 ; 50 Id. 194 ; 32 W. E. 761 609 Jacobson v. Blake, 6 M. & Gr. 919 ; 13 L, J. G. P. 89 . . . 133 Jacciues v. Golightly, 2 W. Bl. 1073 385 V. Witiiy, 1 H. Bl. 65 385 Jagger v. Jagger, 25 Gh. D. 729 ; 53 L. J. Ch. 201 ; 49 L. T. 667 ; 32 W. E. 284 420 Jago V. Graham, 32 L. J. P. & M. 10 ; 3 Sw. & Tr. 103 ; 8 Jur. N. S. 1081 ; 7 L. T. 645 ; 11 W. E. 86, 192, 551 618 Jakenian v. Cook, 4 Ex. D. 26 ; 48 L. J. Ex. 165 ; 27 W. E. 171 . 144 James v. Giitlin, ] M. & W. 20 ; 2 Id. 623 ; 6 L. J. Ex. 241 . . 727 V. Isaacs, 12 C. B. 791 ; 22 L. J. C. P. 73 ; 17 Jur. 69 ; 1 W. E. 21 338 V. AVilliams, 5 B. & Ad. 1109 ; 3 N. & M. 196 ; 3 L. J. K. B. 97 294 Janes v. Wliillii(;ad, 11 C. B. 406 ; 20 L. J. C. P. 217 ; 15 Jur. 612 . 18 Jaques V. Millar, 6 Gh. D. 1.53 ; 47 L. J. Ch. 544 ; 37 L. T. 151 ; 25 W. E. 846 298 Jai.linc V Leatliley, 3 ]'>. & S. 700 ; 32 L. .). Q. B. 132 ; 9 Jur. N. S. 1035 ; 7 L. T. 783 ; 11 VV. R. 432 350 Jarrett v. Hunter, 34 Ch. D. 182 ; 56 L. J. Ch. 141 ; 55 L. T. 727 ; 35 W. K. 132 ; 51 J. P. 165 298 JarvJH '/;. Wilkins, 7 M. & W. 410 ; 10 L. J. Ex. 104 ; 5 Jur. 9 . . 294 Jcui). Tlnnlow, 2 15. &G. .547 ; 4 I). &E. 11 366 Jelfery.s v. (Jurr, 2 J5. & Ad. 833 ; 1 L. J. K. 11 23 . . . .142 JeffricH V. Al.-xamler, 31 L. J. (Jh. 9 ; 8 II. !.. C. 591 ; 7 Jur. N. S. 221 ; 2 L. T. 748 370 V. 0. W. H. Co., 5 E. & B. 802 ; 25 !...). (,). B, 107 ; 2 Jur. N. S. 230 ; 4 W. R. 201 344 TO VOLUME I. 1>A0E Jeffries V. Williams, 5 Excli. 792 ; 20 L. J. Ex. 14 . . . 270, :U7 Jeffs V. Day, L. R. 1 Q. B. 372 ; 35 L. J. Q. B. 99 . . . . 340 Jemmotv. Cooly, 1 Lev. 170; 1 Saiind. 112 c; 1 Sid. 223, 262, 344; T. Raym. 135, 158 ; 1 Kcb. 784, 915 ; 2 Id. 20, 184, 270, 295 . 515 Jenings v. Florence, 2 C. B. N. S. 467 ; 26 L. J. (J. P. 277 ; 3 Jur. N. S. 774 260 Jenkins v. Keuiislu', Hard. 395 ; 1 Lev. 150 .... 25, 28 -y. Milford, 1 J. & W. 629 514 Jenkyn v. Vau^han, 3 Drew. 419 20 Jenkyns, Re, 32 L. J. P. 71 ; 3 Sw. & Tr. 93 ; 9 Jur. N. S. 31 1 ; 8 L. T. 517 ; 11 W. R. 501 323 V. Usborne, 8 Scott, N. R. 505 ; 7 M. & Gr. 678 ; 13 L. J. C. P. 196 ; 8 Jur. 1139 722,725,733,745 Jennings v. Brown, 9 M. & W. 496 ; 12 L. J. Ex. 86 . . . . 145 ■ V. Hammond, 9 Q. B. D. 225 ; 51 L. J. Q. B. 493 ; 31 W. R. 40 370 Jenoure v. Delmege, (1891) A. C. 73 ; 60 L. J. P. C. 11 ; 63 L. T. 814 ; 39 W. R. 388 ; 55 ,1. P. 500 263 Jenys v. Fawler, 2 Stra. 946 450 Jervis v. Berridge, L. R. 8 Ch. 351 ; 42 L. J. Ch. 518 ; 27 L. T. 436 ; 28 Id. 481 ; 21 W. R. 96, 395 302 V. Bruton, 2 Vern. 251 ; Eq. Ca. Ab. 87, pi. 8 . . . . 419 Jessel V. Bath, L. R. 2 Ex. 267 ; 36 L. J. Ex. 149 ; 15 W. R. 1041 . 741 Jewan v. Whitwoith, 2 Eq. 692 ; 36 L. J. Ch. 127 ; 14 W. R. 1020 . 745 Jewel's Case, 5 Co. Rep. 3 54 Jezeph V. Ingram, 8 Taunt. 838 ; 1 Moore, 189 13 Jodrell V. Jodrell, 9 Beav. 45 ; 15 L. J. Ch. 17 ; 9 Jur. 1022 . . 366 Joel V. M orison, 6 C. & P. 501 353 John V. Bacon, L. R. 5 C. P. 437 ; 39 L. J. C. P. 365 ; 22 L. T. 477 ; 18 W. R. 894 224 Johns V. James, 8 Ch. D. 744 ; 47 L. J. Ch. 853 ; 37 L. T. 778 ; 39 Id. 54 ; 26 W. R. 276, 821 17 Johnson, Be, 70 L. T. 381 ; 1 Manson, 54 48 V. Credit Lyonnais, 2 C. P. D. 224 ; 3 Id. 32 ; 47 L. J. C. P. 241 ; 36 L. T. 253 ; 37 Id. 657 ; 26 W. R. 195 . . 455, 743, 745 V. Dodgson, 2 M. & W. 653 ; 6 L. J. Ex. 185 ; 1 Jur. 739 296, 319, 320 V. Emerson, L. R. 6 Ex. 329 ; 40 L. J. Ex. 201 ; 25 L. T. 337 262, 265 v. Faulkner, 2 Q. B. 925 ; 2 G. & D. 184 ; 11 L. J. Q. B. 193 ; 6 Jur. 833 430 V. Hill, 3 Stark. 172 125 V. Hudson, 11 East, 180 ; 10 R. R. 465 .... 374 V. Jones, 9 A. & E. 809 ; 1 P. & D. 651 ; 8 L. J. Q. B. 124 157, 162, 507 ('. Leigh, 6 Taunt. 246 ; 1 Marsli. 565 .... 105, 106 n ]\larib(.rough, 2 Stark. 313 784 V. Mid. R. Co., 4 Excli. 367 ; 6 Railw. Cas. 61 ; 18 L. J. Ex. 366 200, 202 c. Raylton, 7 Q. B. D. 438 ; 50 L. J. Q. B. 753 ; 45 L. T. 374 ; 30 W. R. 350 542 V. Royal Mail Co., L. R. 3 C. P. 38 ; 37 L. J. C. P. 33 ; 17 L. T. 445 142 V. Stear, 15 C. B. N. S. 330 ; 33 L. J. C. P. 130 ; 10 Jur. N. S. 99 ; 9 L. T. 538 ; 12 W. R. 347 . . 195, 228, 72 V. Upham, 2 E. & E. 250 ; 28 L. J. Q. B. 252 ; 5 Jur. N. S. 681 131 Johnston i: Meldon, 30 L. R. Ir. 15 666 r. Salvage Ass., 19 Q. B. D. 458 ; 57 L. T. 218 ; 6 Asp. M. C 167 ; 36 W. R. 56 152 TABLE OF CASES Johnston v. Usborne, 11 A. & E. 549 ; 3 P. & D. 230 . . . 542, Johnstone v. Nicholls, 1 C. B. 251 ; 14 L. J. C. P. 151 ; 9 Jur. 429 . Jolly V. Arbuthiiot, 4 De G. & J. 224 ; 28 L. J. Ch. 274, 547 ; 5 Jur. N. S. 80, 689 ; 7 W. R. 127, 532 . . . .93, 94, 516, 522, Jonassohn v. Ransome, 3 C. B. N. S. 779 Jones V. Ashui'st, Skinn. 357 .... V. Broadhurst, 9 C. B. 173 V. Carter, 15 M. & W. 718 ; 15 L. J. Q. B. 96 V. Chapman, 2 Exch. 803 ; 18 L. J. Ex. 456 I'. Croucher, 1 Sim. & S. 315 . V. Festiniof,' R. Co., L. R. 3 Q. B. 733 O. B. 214 ; 18 L. T. 902 ; 17 W. ; 9 B. & S. 835 ; 37 L. J. R. 28 . ). B. 464 ; 64 L. T. 538 ; PAGE 560 295 527 339 18 338 44 344 30 825 V. Foley, (1891) 1 Q. B. 730 ; 60 L. J. 39 W. R. 510 ; 55 J. P. 521 134 V. Gordon, 2 App. Cas. 616 ; 1 Ch. D. 137 ; 45 L. J. Bkcy. 1 ; 47 Id. 1 ; 33 L. T. 483 ; 37 Id. 477 ; 24 W. R. 257 ; 26 Id. 172 470, 472 61 L. T.721 V. Hughes, 5 Exch. 104 ; 19 L. J. Ex. 200 .. . V. Jones, 8 M. & W. 431 ; 10 L. J. Ex. 481 V. , 1 H. & C. 1 ; 31 L. J. Ex. 506 ; 8 Jur. N. S. 1132 V. Lees, 1 H. & N. 189 ; 26 L. J. Ex. 9 ; 2 Jur. N. S. 645 V. IMarsh, Forrest. fem|). Talbot, 64 . V. Marshall, 24 Q. B. D. 269 ; 59 L. J. Q. B. 123 38 W. R. 269 V. Merionethshire Soc, (1892) 1 Ch. 173 ; (1891' L. J. Ch. 564 ; 61 Id. 138 ; 65 L. T. 685 ; 17 Cox C. C. 389 r. North, 19 Eq. 426 ; 44 L. J. Ch. 388 ; 32 W. R. 468 V. Owen, 2 D. & R. 600 568 731 1.34 411 27 192 2 Id. 587 ; 60 40 W. R. 273 . 365, 386 L. T. 149 ; 23 . 415 . 649 Ryder, 4 M. & W. 32 ; 1 H. & H. 256 ; 7 L. J. Ex. 216 . 571 V. Taylor, 1 E. & E. 20 665, 671 . V. Tyler, 1 A. & E. 522 ; 3 N. & M. 576 ; 3 L. J. K. B. 166 . 122 V. Victoria Dock, 2 Q. B. D. 314 ; 46 L. J. Q. B. 219 ; 36 L. T. 347 ; 25 W. R. 501 299, 300, 322 V. Waite, 5 B. N. C. 341 ; 1 Id. 656 ; 1 Scott, 730 ; 7 Id. 317 ; Hodges, 166 ; 4 M. & Gr. 1104 ; 5 Scott, N. R. 951 ; 9 CI. & F. 101 ; 8 L. J. Ex. 305 ; 4 L. J. C. P. 184 ; 6 Jur. 653 366, 372, 373 V. Williams, 7 M. & W. 493 ; 9 Dowl. 252 ; 10 L. J. Ex. 120 . 150 Joseph V. \\^el)b, C. & E. 262 743 Joule V. Jackson, 7 M. & W. 450 ; 10 L. J. Ex. 142 . . . . 428 K. Kaltenjjach v. Lewis, 10 App. Cas. 617 ; 24 Ch. D. 54 ; 51 L. J. Ch. 881 ; 55 Id. 58 ; 45 L. T. 660 ; 48 Id. 844 ; 30 W. R. 356 ; 31 Id. 731 Kane r. Mulvany, 2 Ir. Rep. C. L. 402 Kayc r. Diittuu, 8 Scott, N. R. 495 ; 2 D. & L. 291 13 L. .1. C. I'. 1K3 ; 8 Jur. 910 Keane v. Siiialll)nm^, 17 C. B. 179 ; 25 L. J. C. P. 72 ; 4 W. R. 11 Kearley /•. Tli..n.s.,ii, 24 Q. B. 1). 742 ; 59 L. J. i}. B. 288 ; 63 L. T 1.50 ; 38 W. R. 614 Kt-arney r. King, 2 I'. (S: Aid. 301 r. Wliitcliaveii Co., (1893) 1 Q. P>. 700 ; 62 L. J. M. C. 129 68 L. T. (590 ; 41 VV. R. 594 ; 57 J. P. 645 ; 4 R. 388 . KeaniH v. Durell, 6 i). B. 596 ; 18 I.. J. C. P. 28 ; 13 .hir. 153 . Keurslake t). Mfjrgan, 5 T. R. 513 745 264 7 M. & Gr. 807 147, 148 775 365, 370, 385, 387, 388 553 372 141 326 TO VOLUME I. Kearsley v. Philips, 1 1 (,). V,. D. 621 ; 52 L. J. Q. B. 581 ; 49 L. T. 435; '31 W. E. 90!) Keate v. Temple, 1 B. & P. 158 Keates v. Lyon, 4 Ch. 218 ; 38 L. J. Cli. 357 ; 20 L. T. 255 ; 17 W. R. 338 . ' Keecli r. Hall, 1 Dougl. 21 495, Keen v. Henry, (1894) 1 Q. B. 292 ; 63 L. J. Q. B. 211 ; 69 L. J. 671 ; 42 'W. R. 214 ; 58 J. P. 262 ; 9 E. 102 . . . 205, V. Priest, 4 H. & N. 236 ; 28 L. J. Ex. 157 ; 7 W. R. 376 . Keir v. Leeman, 6 Q. B. 308 ; 9 Id. 371 ; 13 L. J. Q. B. 259 ; 15 Id. 360 ; 8 Jur. 824 ; 10 Id. 742 Keith V. National Telephone Co., (1894) 2 Ch. 147 ; 63 L. J. Cli. 373 ; 70 L. T. 276 ; 42 W. R. 380 ; 58 J. P. 573 ; 8 E. 776 . Kellock V. Enthoven, L. R. 9 Q. B. 241 ; 8 Id. 458 ; 42 L. J. Q. B. 174 ; 43 Id. 90 ; 28 L. T. 893 ; 30 Id. 68 ; 21 W. E. 944 ; 22 Id. 322 Kelly V. Metrop. R. Co., (1895) 1 Q. B. 944 ; 64 L. J. Q. B. 568 ; 72 L. T. 551 ; 43 W. E. 497 223, V. Partin^ton, 5 B. & Ad. 645 ; 2 N. & M. 460 ; 3 Id. 116 ; 3 L. J. K. B. 104 Kelner v. Baxter, L. R. 2 C. P. 174 ; 36 L. J. C. P. 94 ; 15 L. T. 213 ; 15 W. R. 278 Kelsall V. Marshall, 1 C. B. N. S. 241 ; 26 L. J. C. P. 19 ; 2 Jur. N. S. 1142; 5 W. E. 114 Kemp V. Falk. See Falk, Ex p. V. Finden, 12 M. & \V. 421 ; 13 L. J. Ex. 137 ; 8 Jur. 65 V. Neville, 10 C. B. N. S. 523 ; 31 L. J. C. P. 158 ; 7 Jur. N. S. 913 ; 4 L. T. 640 ; 10 W. E. 6 . . . . 283, 631, V. Watt, 15 M. & W. 672 ; 4 D. & L. 21 V. Westbrook, 1 Ves. Sen. 278 Kerape v. Crews, 1 Ld. Raym. 167 ; 2 Lutw. 1573 Kendal r. Marshall, 11 g. B. D. 356 ; 52 L. J. Q. B. 313 ; 46 693 ; 48 Id. 951 ; 31 W. R. 597 ; 46 J. P. 631 Kendall v. L. & S. W. R. Co., L. R. 7 Ex. 373 ; 41 L. J. Ex. 184 ; L. T. 735 ; 20 W. R. 886 V. Webster, 1 H. & C. 440 ; 31 L. J. Ex. 492 V. Wilkinson, 4 E. & B. 680 ; 24 L. J. M. C. 89 ; 3 C. 668 ; 1 Jur. N. S. 538 ; 3 W. R. 234 . Kendillon v. Maltby, Car. & M. 402 ; 2 M. & Rob. 438 Kennaway v. Treleaven, 5 M. & W. 498 ; 9 L. J. Ex. 20 ; 3 Jur Kennedy v. Broun, 13 C. B. N. S. 677 ; 32 L. J. C. P. 137 " N. S.'ll9 ; 7 L. T. 626 ; 11 W. R. 284 . Kennerly v. Nash, 1 Stark. 452 Kent V. Shuckard, 2 B. & Ad. 803 V. Ward, 70 L. T. 612 ; 9 R. 593 Keppell V. Bailey, 2 M. & K. 517 ; Coop. temp. Brough. 298 Kerbey v. Denbv, 1 M. & W. 336 ; 2 Gale, 31 ; 1 T. & G. 688 Ex. '162 193, L. t! 26 200, L. r! 265, 1034 Jur. Kern v. Deslandes, 10 C. B. N N. S. 194 ; 5 L. T. 349 . . . . Kerr r. Willan, 6 M. & S. 150 ; 2 Stark. 53 Kerrison v. Cole, 8 East, 231 V. Dorien, 9 Bim:. 76 82, 86, 5 L.J. ■ 105, S. 205 ; 30 L. J. C. P. 297 ; 8 Jur. Kershaw v. Cox, 3 Esp. 246 Kettle V. Bromsall, Willes, 118 Kevan v. Crawford, 6 Ch. D. 29 W. R. 49 . 2 M. & Scott, 114 46 L. J. Ch. 729 ; 37 L. T. 322 ; 26 729, 111 ; Key V. Cotesworth, 7 Ex. 595 ; 22 L. J. Ex. 4 . Keyes v. Elkins, 5 B. & S. 240 ; 34 L. J. Q. B. 25 ; 11 Jur. N. S I'l L. T. 474 ; 13 W. E. 180 Keys V. Belfast il. Co., 9 H. L. C. 556 ; 8 Ir. C. L. E. 167 ; 9 W. E. 793 Kidd V. Rawlinsoii, 2 B. & P. 59 ; 3 Esi). 52 ; 5 E. R. 540 . 516 287 87 526 353 434 364 44 166 233 280 349 620 151 641 338 194 435 728 205 367 642 281 295 146 784 122 375 418 113 733 205- 372 25 781 189 18 r40 339 210 13 TABLE OF CASES PAGE Kidderminster r. Hard wick, L. R. 9 Ex. 13 ; 43 L. J. Ex. 9 ; 29 L. T. 611 ; 22 W. E. 160 309 Kidson v. Turner, 3 H. & N. 581 ; 27 L. J. Ex. 492 ; 6 W. E. 678 . 370 Kidwelly r. Brand, Plowd. 69 60 Kielley r. Carson, 4 Moore, P. C. 63 286 Kilpin r. Eatlev, (1892) 1 Q. B. 582 ; 66 L. T. 797 ; 40 W. E. 479 ; 56 J. P. 565 " 148 Kimher v. Press Association, (1893) 1 Q. B. 65 ; 62 L. J. Q. B. 152 ; 67 L. T. 515 ; 41 W. E. 17 ; 57 J. P. 247 ; 4 E. 95 . . . . 263 King's Trade Mark, Re, (1892) 2 Ch. 462; 66 L. T. 489, 491 ; 67 Id. 33 ; 40 W. R. 580 607 Kin^ r. Dickestm, 40 Ch. D. 596 ; 58 L. J. Cli. 464 ; 60 L. T. 785 ; 37 W. E. 553 86 V. Hansel], 5 H. & N. 106 ; 1 L. T. 376 412 V. Hinde, 12 L. E. Ir. 113 547 . r. Jones, 5 Tannt. 418 ; 1 Marsh. 107 ; 4 M. & S. 188 ; 15 E. E. 533 73 V. London Cab Co., 23 Q. B. D. 281 ; 58 L. J. Q. B. 456 ; 61 L. T. 34 ; 37 W. E. 737 ; 53 J. P. 788 353 V. Meredith, 2 Camii. 639 221 r. Sears, 2 C. U. & E. 53 ; 5 Tyr. 587 ; 1 Gale, 241 ; 4 L. J. Ex. 181 . 139 V. Spurr, 8 Q. B. D. 104 ; 51 L. J. Q. B. 105 ; 45 L. T. 709 ; 30 W. E. 152 ; 46 J. P. 198 353 Kingdon v. Nottle, 4 M. & S. 53 72, 73 Kinpsford v. Merry, 1 H. & N. 503 ; 11 Exch. 577 : 26 L. J. Ex. 83 ; 3 Jur. N. P. 68 ; 5 W. R. 151 744 Kingston's (Duchess of) Case, 2 Smith's L. C. 713... 389, 465, 608, 669, 713 Kinlock r. Craig, 3 T. R. 783 ; 1 R. E. 664 713 Kirchner v. Venus, 12 Moore, P. C. 361 ; 5 Jur. N. S. 395 ; 7 W. E. 455 547, 548 Kirk v. Brondey, 2 Phil. 640 ; 2 Coop. 177 ; 16 L. J. Ch. 114 ; 17 Id. 127 ; 12 Jur. 85 308 V. Clark, Prec. Cha. 275 27, 28 Kirkpatrick v. Tattersall, 13 M. & W. 766 ; 14 L. J. Ex. 209 ; 9 Jur. 214 144 Kirwan v. Goodman, 9 Dowl. 330 ; 5 Jur. 293 365 V. Kirwan, 4 Tyr. 491 ; 2 C. & M. 617 ; 3 L. J. Ex. 187 . 333 Kitchen r. Irvine, 28 L. J. Q. B. 46 ; 5 Jur. N. S. 118 ; 8 E. & B. 789 194 Kite's Case, 1 B. & C. 101 650 Kitto V. Bilbie, 72 L. T. 266 746 Kleinwort 7;. Cnmiitoir National, (1894) 2 Q. B. 157 ; 63 L. J. Q. B. 674 ; 10 R. 259 458, 473 Kiiiglit V. Clements, 8 A. & E. 215 ; 3 N. & P. 375 ; 1 W., W. & H. 280 ; 7 L. J. Q. B. 144 ; 2 Jur. 395 . . . .784 *•. Coleswortl), C. & E. 48 541,559,560 ,: Crockford, 1 Esp. 190 ; 5 R. R. 729 320 V. (iihhs, 1 A. & E. 43 ; 3 N. & M. 467 ; 3 L. J. K. B. 135 . 280 r. Halliwell, L. R. 9 Q. B. 412 ; 43 L. J. M. (J. 113 ; 30 L. T. 359 ; 22 W. R. 689 671 V. Hughes, 1 M. & M. 247 ; 3 C. & P. 467 . . . .149 Knill c. Towsc, 24 Q. B. D. 186, 697 ; 59 L. J. Q. P.. 13(!, 455 ; 62 L. T. 259 ; 63 Id. 47 ; 38 W. R. 383, 521 ; 54 J. P. 454, 789 285 I'. Williams, 10 East, 431 781 Knnwlesr. i\Iit. T. 751 ; 26 \\'. E. 142 297, 299 Kniger r. Wilcox, Amlil. 25:^ ; 1 Dick. 269 7(U TU VOLUME I. I'AGE Labalmondiere V. Addi.son, 1 E. & E. 41 ; 28 L. J. M. C. 25 ; 5 Jur. N. S. 431 648 V. Frost, 1 E. & E. 527 ; 28 L. J. M. C. 155 ; 5 Jur. N. S. 789 ; 7 AV. R. 205 052, 053 Lackington v. Atherton, 7 M. & Gr. 360 ; 8 Scott, N. R. 38 ; 13 L. J. C. P. 140 ; 8 Jur. 407 730 Ladd r. Thomas, 4 P. & D. 9 ; 12 A. & E. 117 ; 4 Jur. 797 ; 9 L. J. Q. B. 345 130 Lalor V. Bland, 8 Ir. C. L. R. 115 042, 043, 668 Lamb v. Attenljoroui:;]!, 31 L. J. Q. B. 41 ; 1 B. & S. 831 ; 8 Jur. N. S. 280; low. R. 211 743 V. Walker, 3 Q. B. D. 389 ; 47 L. J. Q. B. 451 ; 38 L. T. 043 ; 26 W. R. 775 272 Lambert v. Bessey, T. Raym. 421 ... . 794, 799, 816, 820 V. Norris, 2 M. & W. 333 ; M. & H. 29 ; 6 L. J. Ex. 109 ; 1 Jur. 24 507 041 492 La Mert, Ej: p., 33 L. J. Q. B. 09 ; 4 B. & S. 582 ; 12 W. R. 201 Lampleigh v. Braitlnvait, Hob. 105 ; Moore, 860 ; Brownl. & Gold. 7 Lancashire Co., Ee, 35 Gh. D. 056 ; 56 L. J. Cli. 701 ; 57 L. T. 511 30 W. R. 305 Waggon Co. r. Fitzhugli, H. & N. 502 ; 30 L. J. Ex. 231 3 L. T. 7f)3 °° 433 89 L. & Y. R. Co. V. Greenwood, 21 Q. B. D. 215 ; 58 L. J. Q. B. 10 ; 59 L. T. 930 203 Lancaster v. Greaves, 9 B. & C. 028 040 Lander, Re, (1892) 3 Ch. 41 ; 01 L. J. Ch. 707 ; 07 L. T. 521 . . 49 Lane, Be, 23 Q. B. D. 74 ; 58 L. J. Q. B. 373 ; 01 L. T. 54 ; 37 W. R. 071 ; M. B. R. 143 500 V. Capsev, (1891) 3 Ch. 411 ; 01 L. J. Ch. 55 ; 05 L. T. 375 ; 40 W. R. 87 134 V. Cotton, 1 Ld. Raym. 046 ; 11 Mod. 12 ; 12 Id. 473 ; 1 Salk. 17 ; Holt, 582 202 V. Horlock, 5 H. L. C. 580 ; 1 Drew. 587 ; 25 L. J. Ch. 253 ; 2 Jur. N. S. 289 ; 4 W. R. 408 309 Lang V. Smytli, 7 Bing. 284 ; 5 M. & P. 78 402 Langforti;. Tiler, 1 Salk. 113 712 Langridge v. Levy, 2 M. & W. 519 ; 4 Id. 337 ; 7 Dowl. 27 ; L. J. Ex. 137 ; 7 Id. 387 ; 1 Jur. 059 259 Langtun v. Lazarus, 5 M. & W. 029 ; 9 L. J. Ex. 89 . . . . 788 Lanuian v. Audley, 2 M. & W. 535 ; L. J. Ex. 130 ; 1 Jur. 479 . 342 Lariviere v. Morgan, 7 Ch. 550 ; L. R. 7 H. L. 423 ; 44 L. J. Ch. 457 ; 26 L. T. 339, 859 ; 32 Id. 41 ; 20 W. R. 731 ; 23 Id. 537 . . 028 Lassence v. Tierney, 1 Mac. & G. 551 ; 2 Hall & Tw. 115 . . . 309 Latimer v. Batson, 4 B. & C. 052 ; 7 D. & R. 100 . . . . 13 Latouche v. Latouche, 3 H. & C. 570 ; 34 L. J. Ex. 85 ; 11 Jur. N. S. 271 ; 11 L. T. 773 ; 13 W. R. .503 143 Lattimore v. Garrard, 1 Exch. 809 ; 17 L. J. Ex. 100 . . . . 148 Laughton v. Sodor & ]\Ian, L. R. 4 P. C. 495 ; 9 Moore, P. C. N. S. 3i8 ; 42 L. J. P. C. 11 ; 28 L. T. 377 ; 21 W. R. 204 . . .202 Launock v. Brown, 2 B. & Aid. 592 109 Laurie v. Scholefield, L. R. 4 C. P. 022 ; 38 L. J. C. P. 290 ; 17 W. R. 931 295 Lavender v. Blackstone, 2 Lev. 140 25 Law V. Law, 3 P. Wms. 391 369 V. Parnell, 7 C. B. N. S. 282 ; 29 L. J. C. P. 17 ; 6 Jur. X. S. 172 ; 1 L. T. 32 ; 8 W. R. 473 V. Wilkin, A. & E. 718 ; 1 N. & P. 097 ; W. W. & D. 235 . 145 Lawless v. Anglo-Egyptian Co., L. R. 4 Q. B. 202 ; 10 B. & S. 220 ; 38 L. J. Q. JB. 129 ; 17 W. R. 498 263 Lawrenson v. Hill, 10 Tr. C. L. R. 177 642 TABLE OF CASES I'AQK Lawrie v. Lees, 14 Cli. D. 249 ; 49 L. J. Cli. 636 ; 42 L. T. 485 ; 28 W. R. 779 . . . 45 Lawsou V. Buiness, 1 H. & C. 396 ; 2 F. & F. 793 ; 10 W. R. 733 . 547 V. Weston, 4 Esp. 56 468 Laycock v. Pickles, 4 B. & S. 497 ; 33 L. J. (2- B. 43 ; 10 Jiir. N. S. 336 ; 9 L. T. 378 ; 12 W. R. 76 308, 332 Layer v. Nelson, 1 Vern. 456 .151 Laying v. Paine, "W^illes, 571 . 369 Laytlujarp v. Bryant, 2 B. N. C. 735 ; 3 Scott, 238 ; 5 L. J. C. R 217 297 298 Lazarus v. Cowie, 3 Q. B. 459 ; 2 G. & D. 487 ; 11 L. J. Q. B. 310 . ' 788 Leake v. Loveday, 4 M. & Gr. 972 ; 2 Dowl. N. S. 624 ; 5 Scott, N. R. 908 ; 12 L. J. C. P. 65 ; 7 Jnr. 17 344 Learoyd ». Robinson, 12 M. .^ W. 745 ; 13 L. J. Ex. 213 . . .744 Leary v. Patrick, 15 Q. B. 266 ; 4 New Sess. Cas. 258 ; 19 L. J. M. C. 211 ; 14.1ur. 932 642 Leask v. Scott, 2 g. B. U. 376 ; 46 L. J. Q. B. 329, 576 ; 35 L. T. 903 ; 36 Id. 784 ; 25 W. R. 654 735, 736, 739 Leatlier Clotli Co. v. Hieronimus, L. R. 10 Q. B. 140 ; 44 L. J. Q. B. 54 ; 32 L. T. 307 ; 23 W. R. 593 300 Co. V. Lorsont, 9 Eq. 345 ; 39 L. J. Ch. 86 ; 21 L. T. 661 ; 18 W. R. 572 404, 410, 411 Lebel v. Tucker, L. R. 3 Q. B. 77 ; 8 B. & S. 830 ; 37 L. J. Q. B. 46 ; 17 L. T. 244 ; 16 W. R. 338 610, 613, 614 Leek V. Maestaer, 1 Camp. 138 ; 10 R. R. 660 198 Le Conteur v. L. & S. W. R. Co., L. R. 1 Q. B. 54 ; 35 L. J. Q. B. 40 ; 12 Jur. N. S. 266 ; 13 L. T. 325 ; 14 W. R. 80 . . 201, 206, 210 Lee V. Abdy, 17 Q. B. I). 309 ; 55 L. T. 297 ; 34 W. R. 653 . 613, 614 V. Bayes, 18 C. B. 599 ; 25 L. J. C. P. 249 ; 2 Jur. N. S. 1093 . 279 V. Butler, (1893) 2 Q. B. 318 ; 62 L. J. Q. B. 591 ; 69 L. T. 370 ; 42 W. R. 88 ; 4 R. 563 192, 742, 746 V. Coleshill, 2 And. 55, 107 ; Cro. Eliz. 529 . . . . 7, 371 V. Cancel, 1 Cowp. 1 ; Lotft, 374 106 V. Mattliews, 6 L. R. Ir. 530 26 V. Muggeridirp, 5 Taunt. 36 ; 1 Ves. & B. 118 . . . . 143 V. Page, 30 L. J. Ch. 857 ; 7 Jur. N. S. 768 ; 9 W. R. 754 . . 341 V. Riley, 34 L. J. C. P. 212 ; 18 C. B. N. S. 722 ; 11 Jur. N. S. 527 ; 12 L. T. 388 ; 13 W. R. 751 827 V. Rowlev, 8 E. & B. 857 ; 27 L. J. Q. B. 193 ; 4 Jur. N. S. 583 . 649 Leeds v. Wright, 3 B. & P. 320 ; 7 R. R. 779 727 Leeds Bank v. Walker, 1 1 Q. V,. I). 84 ; 52 L. J. Q. B. 590 ; 47 J. P. 502 780, 781 Legatees, Tlie, 1 Swa. Ad. 168 ; 5 W. R. 154 150 Legg V. Ciieesebrough, 28 L. J. C. P. 209 ; 5 C. B. N. S. 741 ; 5 Jur. N. S. 795 340 Legge V. Pardoe, 30 L. J. M. C. 108 ; 9 C. B. N. S. 289 ; 7 Jur. N. S. 499 ; 3 L. ^^ 371 ; 9 W. R. 234 665 Leggott V. (i. N. R. Co., 1 Q. B. D. 599 ; 45 L. J. Q. B. 557 ; 35 L. T. 334 ; 24 W. R. 784 267 Lehain v. Philpott, L. R. 10 Ex. 242 ; 44 L. J. Ex. 225 ; 33 L. T. 98 ; 23 W. R. 876 340 Lehniann v. McAilliur, 3 E([. 746 ; 3 Ch. 496 ; 37 L. J. Cli. 625 ; 18 L. T. 806 ; 16 Id. 196 ; 15 W. R. 551 ; 16 Id. 877 . . .48 Leic.-Hter U. S. Auth. v. Holland, 57 L. .1. M. C. 75 ; 52 J. P. 788 . 665 Leidfiiian v. Scliultz. 14 C. P.. 38 ; 2 C. 1^. R. 87 ; 23 L. J. C. P. 17 ; IK.hir. 12 ; 2 VV. K. 35 547 Leigh V. JJickeson, 15 g. 1',. 1). 60; 12 Id. 194 ; 53 L. J. Q. 11. 120; 54 Id. 18 ; 50 L. '!'. 121 ; 52 Id. 790 ; 32 W. R. 339 ; 32 id. 538 143 V. Hind, 9 l'>. iSi (j. 774 ; 4 M. & Ry. 579 404 Leiglitoii V. VValc«, 3 M. & \V. 545 ; 7 L. '.I. Ex. 145 . . . 103, 405 TO VOLUME I. PAGE Le Ki-iix V. Nasi), 2 Str. 1221 70 Leiuiiitn! V. Davis, 19 Cli. D. 281 ; 51 L. J. Ch. 173 ; 4G L. T. 407 ; 30 W. R. 360 ; 4G J. P. 324 272 Lainpriere y. Pasley, 2 T. R. 485 710,712 Lenzbei-r, L'e, 7 Ch. D. G50 ; 47 L. J. Ch. 178 ; 26 W. R. 258 . . 370 Leon, Tlie, 6 P. I). 148 ; 50 L. J. P. 59 ; 44 L. T. 613 ; 4 Asp. M. C. 404 ; 29 W. E. 916 609 Leonard v. Baker, 1 M. & S. 251 13 Lepla V. Rofrers, (1893) 1 Q. B. 31 ; 68 L. T. 584 ; 57 J. P. 55 ; 5 R. 57 49 Leroux v. Brown, 12 C. B. 801 ; 22 L. J. C. P. 1 ; 16 Jur. 1021 ; 1 W. R. 22 297, 622 Leslie v. Baillie, 2 Y. & C. C. C. 91 ; 12 L. J. Ch. 153 ; 7 Jnr. 77 .CIS V. French, 23 Ch. D. 552 ; 52 L. J. Cli. 762 ; 48 L. T. 564 ; 31 W. R. 561 142 Lester v. Foxcroft, Colles, 1(»8 ; 1 Wh. & TuJ. L. C 309 Lethulier's Case, 2 Salk. 443 541 Leuckhart v. Cooper, 3 B. N. C. 99 ; 3 Scott, 521 ; 2 Hodges, 150 ; 6 L. J. C. P. 131 559 Lenw V. Dud£;-eou, L. R. 3 C. P. 17, n. ; 37 L. J. C. P. 5, n. ; 17 L. T. 145 ; 16 W. R. 80 220 Leverick v. Mercer, 14 Q. B. 759 ; 22 L. J. M. C. 81 . . . 655 Lew V. Bai;nard, 8 Taunt. 149 709 ^ f. Rice, L. R. 5 C. P. 119; 21 L. T. 717 ; 18 W. R. 458 . . 601 V. Yates, 8 A. & E. 129 ; 3 N. & P. 249 ; 1 W. W. & H. 219 ; 7 L. J. Q. B. 138 369 Lewis, Ex p., 21 Q. B. D. 191 ; 57 L. J. M. C. 108 ; 59 L. T. 338 . 644 • V. Campbell, 8 Taunt. 715 72 V. Cx. W. R. Co., 5 H. & N. 867 ; 29 L. J. Ex. 425 . . .216 V. , 3 Q. B. U. 195 ; 47 L. J. Q. B. 131 ; 37 L. T. 774 ; 26 W. R. 255 217, 218 . V. Lew, E. B. & E. 537 ; 27 L. J. Q. B. 282 ; 4 Jur. N. S. 970 ; 6'W. R. 629 263 V. Marshal], 7 i\i. & Gr. 729 ; 8 Scott, N. R. 477 ; 13 L. J. C. P. 193 ; 8 Jur. 848 560 V. Rees, 3 K. & J. 132 ; 26 L. J. Ch. 101 ; 3 Jur. N. S. 12 ; 5 W. R. 96 26 Leyfield's Case, 10 Co. Rep. 88, a ; 1 Bulst. 154 . . . 775, 778 Leyland v. Tancred, 16 Q. B. 664 ; 19 L. J. Q. B. 313 ; 14 Jur. 695 . 274 Liberia (Republic of) v. Rove, 1 App. Cas. 139 ; 16 Eq. 179 ; 9 Ch. 569 ; 42 L. J. Ch. 574 ; 43 Id. 640 ; 45 Id. 297 ; 31 L. T. 262 ; 34 Id. 145 ; 22 W. R. 814 ; 24 Id. 965 628 Lickbarrow v. Mason, 2 T. R. 63 ; 5 Id. 683 ; 1 H. BI. 357 ; 4 Bro. P. C. 57 ; 6 East, 20, n. ; 1 R. R. 425 .... 455, 674, 702 Lightbown v. IM'Myn, 33 Ch. D. 575 ; 55 L. J. Ch. 841 ; 55 L. T. 834 ; 35 W. R. 179 153 Lillev V. Runev, 61 L. J. Q. B. 727 265 Lilly V. Hay.s,"5 A. & E. 548 ; 1 N. & P. 26 ; 2 H. & ^Y. 338 ; 6 L. J. K. B. 5 140 Limpus '.'. L. G. O. Co., 1 H. & C. 526 ; 32 L. J. Ex. 34 ; 9 Jur. X. S. 333 ; 7 L. T. 641 ; 11 W. R. 149 352 Lindenau v. Desborough, 8 B. & C. 586 487 Lindon v. Sharp, 6 M. & Gr. 893 ; 7 Scott, N. S. 730 ; 13 L. J. C. P. 67 13 Linsell v. Bonsor, 2 B. N. C. 241 ; 2 Scott, 399 ; 1 Hodges, 305 ; 5 L. J. C. P. 40 564, 568 Lister v. Perryman, L. R. 4 H. L. 521 ; L. R. 3 Ex. 197 ; 37 L. J. Ex. 166 ; 39 Id. 177 ; 18 L. T. 574 ; 23 Id. 269 ; 19 W. R. 9. 261 V. Turner, 5 Hare, 281 ; 15 L. J. Ch. 336 ; 10 Jur. 751 . . 25 Litchfield V. Ready, 5 Exch. 939 ; 20 L. J. Ex. 51 . 496, 508, 514, 526 Littledale V. Dixon, 1 B. & P. N. R. 151 492 Littlefield v. Shee, 2 B. & Ad. 811 ; 1 L. J. K. B. 12 . . . . 143 S.L.C. VOL. I. e TABLE OF CASES Liver Alkali Co. v. Johnson, L. E. 7 Ex. 267 ; 9 Id. 338 ; 41 L. J. Ex. 110 ; 43 Id. 216 ; 31 L. T. 95 . 199 Liverpool Bank v. Eccles, 4 H. & N. 139 ; 28 L. J. Ex. 122 . . 298 Marine Credit Co. v. Hnnter, 3Ch. 479 ; 4 Eq. 62 ; 36 L.J. Ch. 567 ; 37 Id. 386 ; 16 L. T. 447 ; 18 Id. 749 ; 15 W. E. 758 ; 16 Id. 1090 608 Liversidge v. Broadbent, 4 H. & N. 603 ; 28 L. J. Ex. 332 ; 7 W. E. 615 140, 338 Livinc,'ston v. Ealli, 5 E. & B. 132 ; 24 L. J. Q. B. 269 ; 1 Jur. N. S. 594 341 Llewellyn v. Llewellyn, 3 D. & L. 318 ; 15 L. J. Q. B. 4 ; 9 Jur. 991 331 Lloyd V. Crispe, 5 Taunt. 249 ; 14 E. E. 744 . . . . 34, 36, 44 . V. Gen. Iron Screw Collier Co., 33 L. J. Ex. 269 ; 3 H. & C. 284 ; 10 Jnr. N. S. 661 ; 10 L. T. 586 ; 12 W. E. 882 . 220 V. Guibert, L. E. 1 Q. B. 115 ; 6 B. eSt S. 100 ; 33 L. J. Q. B. 241 ; 35 Id. 74 ; 10 Jur. N. S. 949 ; 10 L. T. 570 ; 12 W. E. 953 550, 608, 609 V. Nowell, (1895) 2 Ch. 744 Add. 302 V. Sandilands, 8 Taunt. 250 . . . . . . . 106 Lohb V. Stanley, 5 Q. B. 574 ; D. & M. 635 ; 13 L. J. Q. B. 117 ; 8 Jur. 462 320, 354 lock V. Pearce, (1893) 2 Ch. 271 ; 62 L. J. Ch 41 W. E. 369 ; 2 E. 403 . Lockhart v. St. Albans, 21 Q. B. D. 188 ; 57 W. E. 800 ; 52 J. P. 420 . Lo^kwood V. Coysgarne, 3 Burr. 1676 . V. Ewer, 9 Mod. 275 ; 2 Atk. 303 Lodge V. Dicas, 3 B. & Aid. 611 . Logan V. Hall, 4 C. B. 598 ; 16 L. J. C. P. 252 Lohre v. Aitchison, 3 Q. B. D. 558 ; 2 Id. 501 47 Id. 534 ; 36 L. T. 794 ; 38 Id. 802 ; 26 W. E. 42, 780 . . 541 London B. & S. C. E. Co. v. Truman, 11 App. Cas. 45 ; 25 Ch. D. 423 ; 29 Id. 89 ; 53 L. J. Ch. 209 ; 54 Id. 849 ; 55 Id. 354 ; 54 L. T. 250 ; 50 L. T. 89 ; 52 Id. 522 ; 32 W. E. 364 ; 33 Id. 762 ; 34 Id. 657 ; 50 J. P. 388 828 & County Bank v. London & E. Plate Bank, 20 Q. B. I). 232 ; 21 Id. 535 ; 57 L. J. Q. B. 601 ; 37 W. E. 89 . 335, 338, 459 Founders' Ass. v. Clarke, 20 Q. B. D. 576 ; 57 L. J. Q. B. 291 ; 59 L. T. 93 ; 36 W. E. 489 550 J. S. Bank v. Simmons, (1892) A. C. 201 ; (1891) 1 Ch. 270 ; 60 L. J. Ch. 313 ; 61 Id. 723 ; 62 Id. 427 ; 63 L. T. 789 ; 66 Id. 625 ; 39 W. E. 449 ; 41 Id. 108 ; 56 J. P. 644 162, 468, 469, 471, 472 & N. W. E. Co. V. Bartlett, 7 H. & N. 400 ; 31 L. J. Ex. 92 ; 8 Jur. N. S. 58 ; 5 L. T. 399 ; 10 VV. E. 109 221,732 V. Evershed. See Everi-hed v. L. ,'e, 19 Ch. D. 233 ; 51 L. J. Ch. 329 ; 45 L. T. 599 30 W. R. 93 V. Holloway, 2 Swanst. 432 PAGJ 27.-> 6ii 298 419 V. Marshall, 5 P. D. 19 ; 48 L. J. P. 49 ; 39 L. T. 640 ; 27 W. R. 399 367 V. Nat. Provincial Bank, 61 L. J. Ch. 465 ; 66 L. T. 525 ; 40 W. R. 328 471 V. York, N. & B. R. Co., 11 C. B. 655 ; 21 L. J. C. P. 34 ; 16 Jur. 124 202 Martin v. G. I. P. R. Co., L. R. 3 Ex. 9 ; 37 L. J. Ex. 27 ; 17 L. T. 349 202, 210 V. G. N. R. Co., 16 C. B. 179 ; 3 C. L. R. 817 ; 1 Jur. N. S. 613 . 278 V. Podoer, 2 W. Bl. 701 ; 5 Burr. 2631 12 V. Pridgeon, 28 L. J. M. C. 179 ; 1 E. & E. 778 ; 5 Jur. N. S. 894 ; 7 W. R. 412 647 V. Reid, 11 C. B. N. S. 730 ; 31 L. J. C. P. 126 ; 5 L. T. 727 192, 196 V. Seamore, 1 Cha. C. 170 ....... 26 Martindale v. Booth, 3 B. & Ad. 498 ; 1 L. J. K. B. 166 . . 13, 14 V. Smith, 1 Q. B. 389 ; 1 G. & D. 1 ; 10 L. J. Q. B. 155 ; 3 Jur. 932 695, 7 II Martini v. Coles, 1 M. & S. 140 741 ' 65 90 L41 Martyn v. Clue, 18 Q. B. 661 ; 22 L. J. Q. B. 147 .. . V. AVilliams, 1 H. & N. 817 ; 26 L. J. Ex. 117 ; 5 W. R. 351 Marzetti v. Smith, C. & E. 6 Mason r. Bradley, 11 M. & W. 590 ; 1 D. & L. 380 ; 12 L. J. Ex. 425 7 Jur. 496 r. Corder, 7 Taunt. 9 ; 2 Marsh. 332 3 5 V. Jennings, T. Rayni. 401 216 V. Morley, 34 L. J. Ch. 442 ; 12 L. T. 414 ; 13 W. R. 669 . 354 V. Paynter, 1 Q. B. 974 ; 1 G. & D. 381 ; 10 L. J. Q. B. 299 6 Jur. 214 231 Master v. Miller, 4 T. R. 320 ; 5 Id. 367 ; 2 H. Bl. 140 ; 1 Austr, 225 • 2 R. R. 399 ......... 747 777 Masters v. Green, 20 Q. B. D. 807 ; 59 L. T. 476 ; 52 J. P. 597 ; 36 ' W. R. 591 436 Mather v. Eraser, 2 K. & J. 536 ; 25 L. J. Ch. 361 ; 2 Jur. N. S. 900 ; 4 W. R. 387 427 Matheson v. Killnnn, unreported 349 Mathew v. Blackniore, 1 H. & N. 762 ; 26 L. J. Ex. 150 ; 5 W. R. 363 147 Mathews >: Feaver, 1 Cox, Ch. C. 278 ; 1 R. R. 39 . . . . 23 . V. Williams & Co., 63 L. J. Q. B. 494 ; 10 R. 210 . . 458 Mathias v. Mesnard, 2 C. & P. 353 427 Matson V. Cook, 4 B. N. C. 392 ; 6 Scott, 179 ; 1 Arn. 172 . . .344 V. VVhaiani, 2 T. R. 80 ; 1 R. R. 429 288 Matthaei r. (Jalitzin, 18 Eq. 340 ; 43 L. J. Cli. 536; 30 L. T. 455 ; 22 W. J{. 700 604 Matthews r. Carjienter, 16 L. R. Ir. 420 666 Matthieson v. London and County Bank, 5 C-. P. D. 7 ; 48 L. J. C. P. 529; 41 l>. T. 35 ; 27 W. R. 838 458 Maugham /;. Sliarpe, 17 C. B. N. S. 443 ; 34 L. J. C. P. 19 ; 10 Jur. N. S. 989; 10 B. T. 870; 12 W. R. 1057 193 Maunsell r. Mid. R. Co., 1 H. & M. 130 ; 32 L. J. Ch. 513 ; 9 Jur. N. S. 660 ; 8 L. '1\ 347, 826 ; 11 W. R. 768 366 Mnvingr. Todd, 1 Stark. 72; 4 (Jamp. 225 199 May, Vi'xju., 2 B. (.t S. 426; 31 L. J. M. C. 161 670 V. Burdett, 9 (,). \'>. 101 ; 16 L. J. Q. J!. 64 ; 10 Jur. 692 . . 805 v. Chapman, 16 M. iSi W. 355 470 V. Tomson, 20 Ch. ]). 705 ; 51 L. J. Cli. 917 ; 47 L. T. 295 . 298 TO VOLUME 1. PAGE Mayer v. Harding, L. R. 2 Q. B. 410 ; 9 B. & S. 27, n. ; IG L. T. 429 . 070 Mayhew v. E.-imes, 3 B. & C. 601 ; 1 C. & P. 550 .... 205 . V. Herrick, 7 C. B. 229 ; 18 L. J. C. P. 179 ; 13 Jur. li)78 . 344 V. Nelson, 6 C. & P. 58 206 Mavou, Ex p., 4 De G. J. & S. 664 ; 34 L. J. Bkcy. 25 ; 12 L. T. 254 ; 13 W. R. 629 19 Maxted v. Paine (No. 1), L. R. 4 Ex. 81, 203 ; 38 L. J. Ex. 41 ; 20 L. T. 34 ; 17 W. R. 886 546 V. (No. 2), L. R. 6 Ex. 132 ; 38 L. J. Ex. 129 ; 40 I<1. 57 ; 24 L. T. 149 ; 19 W. R. 527 106, 546 Mazzinghi v. Stephenson, 1 Canq). 291 309 Hears v. S. W. R. Co., 11 C. B. N. S. 850 ; 31 L. J. C. P. 220 ; 6 L. T. 190 89 Medawar v. Grand Hotel, (1891) 2 Q. B. 11 ; 60 L. J. Q. B. 209 ; 64 L. T. 851 ; 55 J. P. 614 123, 124, 125 Medcalfe v. Hodgson, Hutt. 120 236 Meggison v. Foster, 2 Y. & C. C. C. 336 ; 12 L. J. Ch. 415 ; 7 Jur. 546 28 Melbourn, Exp., 6 Ch. 64 ; 40 L. J. Bk. 25 ; 23 L. T. 578 ; 19 W. R. 83 621 Melhado v. Porto R. Co., L. ]{. 9 C. P. 503 ; 43 L. J. C. P. 253 ; 31 L. T. 57 ; 23 W. R. 57 349 Melliss V. ^liirlev L. B., 16 Q. B. D. 446 ; 55 L. J. Q. B. 143 ; 53 L. T. 810 ; 34 W. R. 187 ; 50 J. P. 214 373 Mellor V. Spateman, 1 Wms. Saund. 343 ; 2 Keb. 527 ; 1 Rayni. 406... 250, 274 Memherv v. G. W. R. Co., 14 App. Cas. 179 ; 58 L. J. Q. B. 563 ; 61 L. T. 566 ; 38 W. R. 145 ... .... 277 Mennie v. Blake, 6 E. & B 842 ; 25 L. J. Q. B. 399 ; 2 Jur. N. S. 953 ; 4 W. R. 739 228 Menzies v. Lighttbot, 11 E(|. 459 ; 40 L. J. Ch 561 ; 24 L. T. 695 ; 19 W. R. 578 555 Mercer, Ex p., 17 Q. B. D. 290 ; 55 L. J. Q. B. 558 ; 54 L. T. 720 . 22 Merchant Banking Co. v. Phcenix Co., 5 Ch. D. 205 ; 46 L. J. Ch. 418 ; 36 L. T. 395 ; 25 W. R. 547 . . . 455, 466, 542, 727, 742 Merry v. Nickalls, 7 Ch. 733 ; L. R. 7 H. L. 530 ; 41 L. J. Ch. 767 ; 45 Id. 575 ; 26 L T. 496 ; 27 Id. 12 ; 32 Id. 623 ; 20 W. R. 531, 929 ; 23 Id. 663 166, 546, 559 Merrvweather v. Ni::an, 8 T. R. 186 ; 16 R. R. 810 . 152, 154, 155, 365, 383, 390 Messina v. Petrococihino, L. R. 4 P. C. 144 ; 41 L. J. P. C. 27 ; 26 L. T. 561 ; 20 W R. 451 608 Metcalfe v. L. & B R. Co., 4 C. B. N. S. 307 ; 27 L. J. C. P. 205 ; 4 Jur. 487 ; 6 W. R. 498, 580, 593 209 Metrop. Asylum v- Hill, 6 App. Cas. 193 ; 4 Q. B. D. 433 ; 48 L. J. Q. B. i62 ; 50 Id. 353 ; 40 L. T. 491 ; 44 Id. 653 ; 29 W. R. 317 826, 828 Bank v. Pooley, 10 App. Cas. 210 ; 54 L. J. Q. B. 449 ; 53 L. T. 163 ; 33 W. R. 709 261 R. Co. t: Jackson, 3 App. Cas. 193 ; L. R. 10 C. P. 49 ; 44 L. J C. P. 83 ; 47 Id. 303 ; 31 L. T. 475 ; 37 Id. 679 ; 23 ^A . R. 78 ; 26 Id. 175 276 Society v. Brown, 4 H. & N. 428 ; 1 E. & E. 832 ; 28 L. J. Ex. 340 ; 5 Jur. N. S. 378 517 Meux V. City of London Electric Co., (1895) 1 Ch. 287 ; 64 L. J. Ch. 216 ; 70 L T. 762 ; 72 Id. 34 ; 42 W. R. 644 ; 43 Id. 238 ; 8 R. 823 828 Mews V. Carr, 1 H. & N. 484 ; 26 L. J. Ex. 39 321 Meyer v. Decroix, (1891) A. C. 520 ; 25 Q. B. D. 343 ; 59 L. J. Q. B. 538 ; 61 Id. 205 ; 65 L. T. 653 : 40 W. R. 513. . . 458 V. Dresser, 16 C. B. N. S. 640 ; 33 L. J. C. P. 289 ; 10 L. T. 612 ; 12 W. R. 983 553 Meyerhotf v. Froelich, 4 C. P. D. 63 ; 3 Id. 333 ; 48 L J. C. P. 43 ; 39 L. T. 020 ; 27 W. R. 258 570 TABLE OF CASES PAOE Meyerstein v. Barber, L. E. 2 C. P. 38, 661 ; L. R. 4 H. L. 317 ; 36 L. J. C. P. 48 ; 39 Id. 187 ; 16 L. T. 569 ; 22 Id. 808 ; 15 W. R. 998; 18 Id. 1041 1^5 Michael v. Scockwitli, Cro. Eliz. 120 751, 778 Middlecome v. Marlow, 2 Atk. 519 20 Middleditch v. Ellis, 2 Exch. 623 ; 17 L. J. Ex. 365 . . . . 147 Middleniore r. Goodale, Cro. Car. 503, 505 ; 1 Rolles Abr. 521 K. pi. 6; W. Jones, 406 65, 72 Middlesex (Sheriff of). Re, 11 A. & E. 273 ; 3 P. & D. 330 ; 9 L. J. Q. B. 218 ; 4 Jur. 68, 70 .286 Midland Ins. Co. v. Smith, 6 Q. B. D. 561 ; 50 L. J. Q. B. 329 ; 45 L. T. 411 ; 29 W. R. 850 ; 45 J. P. 699 . . . .279 R. Co. V. Bromley, 17 C. B. 372 ; 25 L. J. C. P. 94 ; 2 Jur. N. S. 140 ; 4 W. R. 258 201, 222 Mighell V. Sultan of Johore, (1894) 1 Q. B. 149 ; 63 L. J. Q. B. 593 ; 70 L. T. 64 ; 58 J. P. 244 625, 626, 627, 629 Mildred v. Mas]ious, 8 App. Cas. 874 ; 9 Q. B. D. 530 ; 51 L. J. Q. B. 604 ; 53 Id. 33 ; 47 L. T. 318 ; 49 Id. 685 ; 30 W. R. 862 ; 32 Id. 125 745 Miles, ^x^j., 15 Q. B. D. 39 ; 54L. J. Q. B. 566 . . . .728 V. Bougli, 3 D. & L. 105 ; 15 L. J. Q. B. 30 ; 10 Jur. 390 ; 3 Railw. Cas. 668 342 V. Cattle, 6 Ring. 743 ; 4 M. & P. 630 206 V. Furber, L. R."8 Q. B. 77 ; 42 L. J. Q. B. 41 ; 27 L. T. 756 ; 21 W. R. 262 428, 429 V. New Zealand Co., 32 Ch. D. 266 ; 54 L. J. Ch. 1035 ; 55 Id. 801 ; 54 L. T. 582 ; 34 W. R. 669 . . . 295, 307, 331 V. Tobin, 17 L. T. 432 ; 16 W. R. 465 45 V. AVilliams, 9 Q. B. 47 ; 16 L. J. Q. B. 56 ; 11 Jur. 36 . . 342 Millen v. Brasch, 10 Q. B. D. 142 ; 8 Id. 35 ; 51 L. J. Q. B. 166 ; 52 Id. 127 ; 45 L. T. 653 ; 47 Id. 685 ; 31 W. R. 190 ; 46 J. P. 183 ; 47 Id. 180 206, 207 MiUer v. Green, 2 Tvr. 1 ; 2 C. & J. 143 ; 8 Ring. 92 ; 1 M. & Scott, 199 ; 1 L. J. Ex. 51 426, 430 V. Hope, 2 Shaw, App. Cas. 125 265 T. Race, 1 Burr. 452 447, 752 V. Tetherington, 6 H. & N. 278 ; 7 Id. 954 ; 31 L. J. Ex. 363 ; 7 Jur. N. S. 214 ; 3 L. T. 893 ; 9 W. R. 437 ; 10 Id. 356 . 541, 555 Mills V. Aurio], 4 T. R. 94 ; 1 H. Bl. 433 ; 2 R. R. 341 . . .70 V. Ball, 2 B. & P. 457 ; 5 R. R. 653 727, 732 V. Dunham, (1891) 1 Ch. 576 ; 60 L. J. Ch. 362 ; 64 L. T. 712 ; 39 W. R. 289 . 412 V. Fowkes, 5 B. N. C. 455 ; 7 Scott, 444 ; 2 Arn. 62 ; 8 L. J. C. P. 276 ; 3 Jur. 406 565 Milner i;. G. N. R. C-., 50 L. T. 367 353 Milnes v. Bale, L. R. 10 C. P. 591 ; 44 L. J. C. P. 330 ; 33 L. T. 174 ; 23 W. R. 660 640 V. Branch, 5 M. & S. 411 72, 79, 89, 90 Mineral Water Soc. v. Booth, 36 Ch. ]). 165 ; 57 L. T. 573 ; 36 W. R. 274 415 Minet v. Gibson, 3 T. P. 481 ; 1 11. 151. 569 ; 1 K. II. 754 . . 751, 752, 755, 761, 763, 773 MiuHJiall r. Lh.yd, ;;i M. i*t W. 450 ; 1 .lur. 336 14 Minshull /;. Gukes, 2 II. & N. 793; 27 L. .1. Ex. 194; 4 Jur. N. S. 169 66—69 Mirabita r. Iinpi rial Ott.mian P,ank, 3 Ex. 1). 161 ; 17 L. J. Ex.418 ; 38 L. T. 597 736 MininiH, /.V, (1891) I (,). 15. 594 ; 60 L. .1. (,». P.. 397 ; 61 L. T. 117 ; 39 W. [{. 464 ; 8 M. I',. R. 59 377 MiKsouii S. S. Co., /.V, .12 Ch. I). 321 ; 5H L. T 377 ; 6 Asp. M. C. 261 ; 37 \y. V. CUr, .... 609 TO VOLUME I. PAOB Mitchell V. Cragg, 10 M. & W. 367 ; 2 Dowl. N. S. 252 ; 11 L. J. Ex. 343 328 V. Crassweller, 13 C. B. 237 ; 22 L. J. C. P. 100 ; 17 Jur. 716 ; 1 W. R. 153 353 V. Daiiev Main Co., 14 Q. B. D. 125 ; 11 App. Ca^;. 127 ; 53 L. J. Q. B. 471 ; 32 W. R. 947 . . . 271, 272, 446 V. Foster, 9 Dow). 527 ; 12 A. & E. 472 ; 9 L. .T. M. C. 95 ; 4 P. & D. 150 652 V. L. & y. R. Co., L. R. 10 Q. B. 256 ; 44 L. J. Q. B. 107 ; 33 L. T. 161 ; 23 W. R. 853 218 V. Reynolds, 1 P. Wms. 181 ; 10 Mod. 27, 85, 130 ; Fort. 296. 391 Mitchison r. Thomson, C. & E. 72 51 Moakes v. Nicholson, 19 C. B. N. S. 290 ; 34 L. J. C. P. 273 ; 12 L. T. 573 729 Moenich v. Fenestra, 61 L. J. Ch. 737 ; 67 L. T. 602 . . . .412 Moffatt r. Bateman, L. R. 3 P. C. 115 ; 6 Moore, P. C. C. X. S. 369 ; 22 L. T. 140 227 Moffett V. Whittaker, L. & T. 141 26 Mogul S. S. Co. V. McGregor, (1892) A. C. 25 ; 23 Q. B. D. 598 ; 21 Id. 544 ; 57 L. J. Q. B. 541 ; 58 Id. 465 ; 61 Id. 295 ; 66 L. T. 1 ; 59 Id. 1 ; 61 Id. 820 ; 40 W. R. 337 ; 37 Id. 286, 756 ; 56 J. P. 101 ; 53,Id. 391, 709 ; 7 Asp. M. C. 120 ; 6 Id. 320, 455 ... 267, 377, 415 Mollett V. Wackerl)arth, 5 C. B. 181 785 Monk V. Whittenbury, 2 B. & Ad. 484 ; 1 M. & Rob. 81 . . . 743 Montrose Peerage Case, 1 Macq. H. L. 401 255 Moodie v. Bannister, 4 Drew. 432 ; 28 L. J. Ch. 881 ; 5 Jur. X. S. 402 ; 7 W. R. 278 571 Moon ^j. Witney Union, 3 B. X. C. 814 ; 5 Scott, 1 ; 3 Hiidges, 206 ; 6 L. J. C. P. 305 541 Moor V. Roberts, 3 C. B. X. S. 830 ; 27 L. J. C. P. 101 ; 4 Jur. X. S. 241 ; 6 W. R. 297 342 Moorcock, Tlie, 14 P. D. 64 ; 13 Id. 157 ; 58 L. J. P. 15, 73 ; 60 L. T. 654 ; 59 Id. 872 ; 37 W. R. 31, 439 ; 6 Asp. M. C. 357, 373 . 179, 198 Moore v. Bushell, 27 L. J. Ex. 3 140 V. Campbell, 10 Exch. 323 ; 23 L. J. Ex. 310 ; 2 C. L. R. 1084 547, 560 V. Greg, 2 Phil. 717 ; 2 De G. & S. 304 ; 12 Jur. 952 . . 88 V. Harris, 1 App. Cas. 318 ; 47 L. J. P. C. 54 ; 34 L. T. 519 24 W. R. 887 V. Hart, 1 Vern. 110, 201 — V. Meagher, 1 Taunt. 39 ; 3 Smith, 135 ; 9 R. R. 702 — V. Mid^ R. Co., Ir. R. 9 C. L. 20 .... — V. Mourgue, 2 Cowp. 479 ..... — I'. Pvrke, 11 East, 52 V. Wilson, 1 T. R. 659 ; 1 R. R. 347 609 300 280 221 185 158 221 648 47 218 15 18 430 724 641 539 671 r. Hedger, L. R. 5 C. P. 485 ; 40 L. J. M. C. 13 . . 648, 651 Morant v. Tavlor, 1 Ex. D. 188 ; 45 L. J. M. C. 78 ; 34 L. T. 139 ; 24 W. R. 46r More's Case, Cro. Eliz. 26 Morewood v. Pollok, 1 E. & B. 743 ; 1 C. L. R. 78 ; 22 L. J. Q. B 250 ; 17 Jur. 881 ; 1 W. R. 304 . r. S. Yorksliire R. Co., 3 H. & X. 798 ; 28 L. J. Ex. 114 • V. AVilkes, 6 C. & P. 144 Morgan v. Aber^iavenny, 8 C. B. 763 ...... r. Bain, L. R. 10 C. P. 15 ; 44 L. J. C. P. 47 ; 31 L. T. 616 23 W. R. 239 ■ V. Brown, 4 A. & E. 515 ; 6 X. & M. 57 ; 1 H. & W. 717 ; 5 L. J. M. C. 77 V. Davies, 3 C. P. D. 260 ; 39 L. T. 60 ; 26 W. R. 816 . . V. E.lwavds, 5 H. & X. 415 ; 29 L. J. M. C. 108 ; 6 Jur. X. S 379 TABLE OF CASES Morgan v. Hill, (1894) 3 Ch. 400 ; 64 L. J. Cli. 6 ; 71 L. T. 557 ; 42 W. R. 618 ; 43 Id. 1 154 V. Hughes, 2 T. R. 2^5 640 V. Ravev, 6 H. & N. 265 ; 2 F. & F. 283 ; 30 L. J. Ex. 131 ; 3 L. T. 784 ; 9 W. R. 376 123 V. Rowlands, L. R. 7 Q. B. 493 ; 41 L. J. Q. B. 187 ; 26 L. T. 855 ; 20 W. R. 726 563, 564 Morison v. TuniouT, 18 Ves. 175 320 Morland v. Cook, 6 E(j[. 252 ; 37 L. J. Cli. 825 ; 18 L. T. 496 ; 16 W. R. 777 89, 266 Morley v. Pincombe, 2 Exch. 101 ; 18 L. J. Ex. 272 . . . . 429 ■ V. Rennoldson, (1895) 1 Ch. 449 ; 64 L. J. Ch. 485 ; 72 L. T. 308 ; 43 W. R. 518 367 Morrel v. Cowan, 7 Ch. D. 151 ; 47 L. J. Ch. 73 ; 37 L. T. 586 ; 26 W. R. 90 296 Morris v. Dixon, 4 A. & E. 845 ; 6 N. & M. 438 ; 2 H. & W. 57 .571 ■ V. Langdale, 2 B. & P. 284 280 i;. Morris, (1895) A. C. 587 Add. 17 V. Salberg, 22 Q. B. D. 614 ; 58 L. J. Q. B. 275 ; 61 L. T. 283 ; 37 W. R. 469 ; 53 J. P. 772 349 Morrish v. Murrey, 13 M. & W. 52 ; 2 D. & L. 199 ; 13 L. J. Ex. 261 107 Morritt, Ee, 18 Q. B. D. 222 ; 56 L. J. Q. B. 139 ; 56 L. T. 42 ; 35 W. R. 277 192, 193 V. N. E. R. Co., 1 Q. B. D. 302 ; 45 L. J. Q. B. 289 ; 34 L. T. 940 ; 24 W. R. 386 207, 210 Morse v. Slue, 2 Lev. 69 ; 1 Vent. 190, 238 ; T. Raym. 220 178 181, 199, 256 Mors Le Blanch v. Wilson, L. R. 8 C. P. 227 ; 42 L. J. C. P. 70 ; 28 L. T. 415 150, 227 Mortimer v. S. Wales R. Co., 1 E. & E. 375 ; 28 L. J. Q. B. 129 ; 5 Jur. N. S. 784 ; 7 W. R. 292 663 Mortimore v. Wright, 6 M. & W. 482 ; 9 L. J. Ex. 158 ; 4 Jur. 465 . 145 Morton v. Palmer, 51 L. J. Q. B. 7 ; 46 L. T. 285 ; 30 W. R. 115 . 436 V. Woods, L. R. 3 Q. B. 658 ; 4 Id. 293 ; 9 B. & S. 632, 650 ; 37 L. J. Q. B. 242 ; 38 Id. 81 ; 18 L. T. 791 ; 16 W. R. 979 ; 17 Id. 414 93, 94, 516, 518, 523 Moss V. Gallimore, 1 Dougl. 279 497, 526 Mostyn v. Fahrigas, 1 Cowp. 161 ; 20 Howell, St. Tr. 82 . . . 573 V. Mostyn, 5 Ch. 457 ; 39 L. J. Ch. 780 ; 22 L. T. 461 ; 18 W. R. 657 146 MouHet V. Cole, L. R. 8 Ex. 32 ; 7 Id. 70 ; 41 L. J. Ex. 28 ; 42 Id. 8 ; 25 L. T. 839 ; 28 Id. 678 ; 20 W. R. 339 ; 21 Id. 175 . . . 404 Mouklsdale v. liirchall, 2 W. Bl. 820 770 Mouk; V. Garrett, L. R. 5 Ex. 132 ; 7 Id. 101 ; 39 L. J. Ex. 69 ; 41 Id. 62 ; 26 L. T. 367 ; 20 W. R. 416 70, 166 Mountjoy's Case, 5 Co. Rep. 3 b 54 Mounl.stephen v. Lakeman, L. R. 5 Q. B. 613 ; 7 Id. 190 ; L. R. 7 H. L. 17 ; 39 L. J. Q. B. 275 ; 18 W. R. 1001 .... 290 M(;xliain, The M., 1 1'. J). 43, 107 ; 46 L. J. A. 17 ; 34 L. T. 559 ; 24 W. it. 650 605, 606 Moxon V. Atkins, 3 Cam)). 200 ; 13 R. R. 789 546 Mul<:arry r. Eyres, (Jii). Car. 511 . 41 Mulliner v. Florence, 3 Q. P.. i). 484 ; 47 L. J. Q. B. 700 ; 38 L. T. 167 ; 26 W. K. 385 125, 126, 192, 195, 228 Muiiifoi'd r. Collier, 25 Q. Ji. J;. 279 ; 59 L. J. Q. P.. 552 ; 2 Meg. 307 ; 3H AV. R. 716 . . . . . \ 524 V. (Jetliiiig, 7 C. B. N. S. 305 ; 29 L. .1. C. P. 105 ; 6 Jur. N. S. 428 ; 1 L. T. 64 ; 8 W. R. 187 . . 294, 403, 407, 408, 409 Muncey V. Dennis, 1 IL & N. 216 ; 26 L. J. Ex. 66 .... 538 Mnnday v. Asi.rev, 13 Ch. D. 855 ; 49 L. J. Ch. 216 ; 42 L. T. 143 ; 28 \\\ R. 347 ,' 299 TO VOLUME I. I'AGK Munclen v. Duke of Bnin.swick, 10 Q. B. 656 ; 16 L. J. Q. B. 300 ; 11 Jur. 801 626 Municipiil Society v. Smith, 22 Q. B. D. 70 ; 58 L. J. Q. B. 01 ; 37 W. R. 42 04, 511 Munroe v. Pilkin^toii, 2 B. & S. 11 : 31 L. J. Q. B. 81 ; 8 Jur. N. S. 557 ; 6 L. T. 2i 608 Munster v. Lamb, 11 Q. B. D. 588 ; 52 L. J. Q. B. 720 ; 49 L. T. 252 ; 32 W. K 243 ; 47 J. P. 805 265 V. S. E. R. Co. 4 C. B. N. S. 676 ; 27 L. J. C P. 308 ; 4 Jur. N. S. 738 201 Murphy v. Boese, L. R. 10 Ex. 126 ; 44 L. J. Ex. 40 ; 32 L. T. 122 ; 23 AV. R. 474 322 V. O'Sullivan, 11 Ir. Jur. N. S. Ill 304 Murray v. Currie, L. R. 6 C. P. 24 ; 40 L. J. C. P. 26 ; 23 L. T. 557 ; 19 W. R. 104 353 V. Glasgow & S. W. R. Co., 11 Court of Sess. Cases, 4th series, 205 ; 4 Nev. & Mac. 456 203 Muschanip v. Lancaster & P. J. R. Co., 8 M. & W. 421 ; 2 Railw. Cas. 607 ; 5 Jur. 656 224 Musgrave v. Pulido, 5 App. Cas. 102 ; 49 li. J. P. C. 20 ; 41 L. T. 629 ; 28 W. R. 373 585, 624 Muskett V. 'Hill, 5 B. N. C. 694 ; 7 Scott, 855 ; 9 L. J. C. P. 201 . 90 Muspratt v. Gregory, 1 M. & W. 633 ; 3 Id. 677 ; 1 T. & G. 1086 ; 7 L. J. Ex. 385 428 Musurus Bey v. Gadban, (1894) 2 Q. B. 352 ; 63 L. J. Q. B. 621 ; 71 L. T. 51 ; 42 W. R. 545 ; 9 R. 519 630, 631 Myers v. Sari, 3 E. & E. 306 ; 30 L. J. Q. B. 9 ; 7 Jur. N. S. 97 ; 9 W. R. 96 538, 555, 556 Mytton V. Mid. R. Co.; 4 H. & N. 615 ; 28 L. J. Ex. 385 ; 7 W. R. 737 224 N. Naden, Exp., 9 Ch. 670 ; 43 L. J. Bk. 121 ; 30 L. T. 575, 743 ; 22 W. R. 768, 936 368 Nailor v. Scott, 2 Ld. Raym. 155fj 532 Naish V. Tatlock, 2 H. Bl. 319 ; 3 R. R. 384 . . . . 141 Nargett v. Nias, 1 E. & E. 439 ; 28 L. J. Q. B. 143 ; 5 Jur. N. S. 198 434 Nash V. Hodgson, 6 De G. M. & G. 474 ; 25 L. J. Ch. 186 ; 1 Jur. N. S. 946 565 V. Lucas, L. R. 2 Q. B. 590 ; 8 B. & S. 531 ; 16 L. T. 610 . . 108 National Bank v. Silke, (1891) 1 Q. B. 435 ; 60 L. J. Q. B. 199 ; 63 L. T. 787 ; 39 W. R. 361 458 Prov. Bank v. Marshall, 40 Ch. D. 112 ; 58 L. J. Ch. 229 ; 60 L. T. 341 ; 37 W. R. 183 401 Telephone Co. v. Baker, (1893) 2 Ch. 186 ; 62 L. J. Ch. 699 ; 68 L. T. 283 ; 57 J. P. 373 ; 3 R. 318 828 Neale v. Day, 28 L. J. Ch. 45 ; 4 Jur. N, S. 1225 ; 7 W. R. 45 . . 19 V. Ratclitf, 15 Q. B. 916 ; 20 L. J. Q. B. 130 ; 15 Jur. 166 . 50 V. Wyllie, 3 B. & C. 533 151 Needham & Beaumont's Case, 1 And. 233 9 Neilson v. Harford, 8 M. & W. 806 ; 11 L. J. Ex. 20 . . . . 560 V. James, 9 Q. B. D. 546 ; 51 L. J. Q. B. 369 ; 46 L. T. 791 . 554 Nelson v. Dahl, 12 Ch. D. 576 ; 6 App. Cas. 38 ; 50 L. J. Ch. 411 ; 41 L. T. 365 ; 44 Id. 381 ; 28 W. R. 57 ; 29 I<1. 543 . . . 559 Nene Co. v. Dunkley, 4 Ch. D. 1 297 Ness V. Stephenson, 9 Q. B. D. 245 ; 47 J. P. 134 . . . . 436 Netherlands Steamboat Co. v. Styles, 9 Moo. P. C. 286 .. . 276 Neve V. Hollands, 18 Q. B. 262 ; 21 L. J. Q. B. 289 ; 16 Jur. 933 . 568 Nevill's Case, 6 Ch. 43 ; 40 L. J. Ch. 1 ; 23 L. T. 577 ; 19 W. R. 36 . I(i6 Nevin v. Great S. & W. R. Co., 30 L. R. Ir. 125 . . . . 217, 218 TABLE OF CASES New Club Co., Re, 34 Ch. D. 646 ; 56 L. J. Ch. 332 ; 56 L. T. 792 35 W. R. 421 Eberbardt Co., Re, 43 Cb. D. 118 ; 59 L. J. Cb. 73 ; 62 301 ; 38 W. E. 97 Eiver Co. v. Johnson, 29 L. J. M. C. 93 ; 2 E. & E. 435 ; 6 Jur, N. S. 374 ; 1 L. T. 295 ; 8 W. R. 179 . Newbould v. Coltman, 6 Excb. 189 ; 20 L. J. M. C. 149 . V. Smitb, 29 Ch. D. 882 ; 33 Id. 127 ; 14 App. Cas, 55 L. J. Ch. 788 ; 53 L. T. 137 ; 55 Id. 194 ; 61 Id. 814 ; 33 690 ; 34 Id. 690 Newburv v. Armstrong, 6 Bing. 201 Newcastle v. A.-G., 12 CI. & F. 402 ; 5 Beav. 307 ; 6 Jur. 789 Newell V. Radford, L. R. 3 C. P. 52 ; 37 L. J. C. P. 1 ; 17 L. T 16 W. R. 79 V. Van Praayh, L. R. 9 C. P. 96 ; 43 L. J. C. P. 94 ; 29 . 423 W. R L. T 433 299 273 462 568 294 30 118; 295, 298 L. T. . 335 334; . 340 . 670 C. 58 641 M. C. . 640 . 371 727, 741 . 28 891 ; 22 W. R. 377 Newington v. Levy, L. R. 5 C. P. 607 ; 6 Id. 180 ; 39 L. J. C. P, 40 Id. 29 ; 23 L. T. 70, 595 ; 18 W. R. 1198 ; 19 Id. 473 Newman D. Baker, 8 C. B. N. S. 200 V. Bendy-sbe, 10 A. & E. 11 ; 2 P. & D. 340 ; 8 L. J. M, V. Hardwicke, 8 A. & E. 124 ; 3 N. & P. 368 ; 7 L. J 101 ; 2 Jur. 493 V. Newujan, 4 M. & S. 66 ; 1 Stark, lol Newsom v. Thornton, 6 East, 17 ; 2 Sniith, 207 ; 8 R. R. 378 Newstead v. Searles, 1 Atk. 265 ...... Newton v. Harland, 1 M. & Gr. 644 ; 1 Scott, N. R. 473 ; 2 Jur. 350 133, 134 V. Marsden, 31 L. J. Cb. 690 ; 8 Jur. N. S. 1034 ; 6 L. T. 155 ; 10 W. R. 438 367 Nicbolls V. Bastard, 2 C. M. & R. 659 ; T. & G. 156 ; 1 Gale, 295 ; 5 L. J. Ex. 7 344 V. Le Feuvre, 2 B. N. C. 83 ; 1 Hodges, 255 ; 2 Scott, 146 ; 4 L. J. C. P. 281 727 Nichols V. Haywood, Dyer, 59 a 778 V. Marsland, L. R. 10 Ex. 255 ; 2 Ex. D. 1 ; 46 L. J. Ex. 174 ; 35 L. T. 725 ; 25 W. R. 173 829 V. Regent's Canal Co., 71 L. T. 249, 836 ; 63 L. J. Q. B. 641. 570 . t'. Stretton, 10 Q. B. 346 ; 11 Jur. 1009 . . . .413 Nicholson v. G.joch, 5 E. & B. 999 ; 25 L. J. Q. B. 137 ; 2 Jur. N. S. 303 386 V. Harper, (1895) 2 Cb. 415 ; 73 L. T. 19 ; 43 W. R. 550 . 745 V. Reviil, 4 A. & E. 675 ; 6 N. & M. 192 ; 1 Har. & W. 756 ; 5 L. J. K. B. 129 782 V. Willan, 5 East, 507 ; 2 Smitb, 107 ; 15 R. R. 745 . . 205 Nickalls V. Merry. See Memi v. Nickalls. Nicklin v. Williams, 10 Exch! 259 ; 2 C. L. R. 1304 ; 23 L. J. Ex. 335 446 Nield V. L. & N. AV. R. Co., L. R. 10 Ex. 4 ; 44 L. J. Ex. 15 ; 23 W . R. 60 266, 824 Nielsen v. Wait, 16 (,). li. D. 67 ; 55 L. J. Q. B. 87 ; 54 L. T. 344 ; 34 W. J{. 33 Nifa. The, (1K92) l>. 41 1 ; 62 L. J. A. 12 ; 69 L. T. 56 . Niiid r. Nineteeiitli (Jentiiry Society, (1894) 2 Q. B. 226; 63 L.J. Q. V,. 106, 636 ; 70 L. T. 316, 831 ; 42 W. K. 3J9, 481 ; 58 J. P. 732 ; 9 U. 4(;8 Nitr(.-l'iios])liat.- Co. V. L. & St. K. Docks, 9 Cb. D. 503 ; 37 L. T. 330 ; 39 Id. 133 ; 27 \V. I{. 267 205, 266, 829 Noble V. Durr.ll, 3 T. 1{. 271 552 V. Kennowav, 2 Dougl. 510 478, 541 V. National Discount Co., 5 11. & N. 225 ; 29 L. J. Ex. 210 . 140 Noel V. Hart, 8 C. & I'. 230 287 Noke V. Awder, (Jro. Eliz. 373, 436 ; Moore, 419 . . 65, 72, 91, 95 547 554 51 TO VOLUME I. PAGE Norontt v. Dodd. Cr. & PIi. 100 ; 10 L. J. Ch. 296 ; 5 Jur. 835 . . 23 Norden Steam Co. v. Denipsey, 1 C. P. D. 654 ; 45 L. J. C. P. 764 ; 24 W. R. 984 547, 548, 554 Nordenfelt v. Maxim Nordenfelt Co., (1893) 1 Ch. 630 ; (1894) A. C. 535 ; 62 L. J. Ch. 273, 749 ; 63 Id. 908 ; 67 L. T. 469 ; 68 Id. 833 ; 71 Id. 489 ; 41 W. E. 604 ; 42 Id. 238 ; 2 R. 298... 404, 408, 410, 412, 413 Norman v. Binnington, 25 Q. B. D. 475 ; 59 L. J. Q. B. 490 ; 63 L. T. 108 ; 38 W. R. 702 220 V. Cole, 3 Esp. 253 136 V. Phillips, 14 M. & W. 277 ; 14 L. J. Ex. 306 ; 9 Jur. 832 . 221 Norris v. Chamhres, 29 Beav. 246 ; 3 De G. F. & J. 583 ; 7 Jur. N. S. 689 ; 3 L. T. 720 ; 9 W. R. 794 603 North V. Bassett, (1892) 1 Q. B. 333 ; 61 L. J. Q. B. 177 ; 66 L. T. 189 ; 40 W. R. 223 ; 56 J. P. 389 546 Loudon Co. v. Jacques, 49 L. T. 659 ; 32 W. R. 283 ; 48 J. P. 405 51 Staft'ordsliire R. Co. v. Peek. See Peek v. N. Sfnfordshire R. Co. AVestern Bank v. Poyuter, (1895) A. C. 56 ; 64 L. J. P. C. 27 ; 72 L. T. 93 196 Northam v. Bowden, 11 Exch. 70 ; 24 L. J. Ex. 237 . . . . 344 Northumberland Avenue Hotel, Re, 33 Ch. D. 16 ; 54 L. T. 76, 777 ; 56 Id. 833 350 Norton v. t'lorence Land Co., 7 Ch. D. 332 ; 38 L. T. 377 ; 26 W. R, 123 603, 623 V. Svms, Moore, 856 ; Hob. 12 371, 396 V. Wood, 1 Russ. & M. 178 339 Nerval v. Pascoe, 34 L. J. Ch. 82 ; 10 Jur. N. S. 792 ; 10 L. T. 809 ; 12 W. R. 973 00, 91 Norwich *-. Norfolk R. Co., 4 E. & B. 395 ; 24 L. J. Q. B. 105 ; 1 Jur. N. S. 344 ; 3 C. L. R. 519 378 Nottingham Co. v. Butler, 16 Q. B. D. 778 ; 15 Id. 261 ; 54 L. J. Q. B. 545 ; 55 Id. 280 ; 54 L. T. 444 ; 34 W. R. 405 . . . 88 Nouvion V. Freeman, 15 App. Cas. 1 ; 35 Ch. D. 704 ; 37 Id. 244 ; 57 L. J. Ch. 367 ; 59 Id. 337 ; 56 L. T. 829 ; 58 Id. 242 ; 62 Id. 189 ; 38 W. R. 581 608 Novelli V. Rossi, 2 B. & Ad. 757 785 Novello V. Toogood, 1 B. & C. 554 ; 2 D. & R. 833 . . . . 437 Nowell V. Worcester, 9 Exch. 457 ; 23 L. J. Ex. 139 ; 18 Jur. 64 . 380 Nugent V. Kirwan, 1 Jebb. & S. 97 429 V. Smith, 1 C. P. D. 19, 423 ; 45 L. J. C. P. 19, 697 ; 33 L. T. 731 ; 34 Id. 827 ; 24 W. R. 237 ; 25 Id. 117 . . . 199, 205, 220 Nunn V. Wilsmore, 8 T. R. 521 ; 5 R. R. 434 . . . . 14, 18 Nuttall V. Bracewell, L. R. 2 Ex. 1 ; 4 H. & C. 714 ; 36 L. J. Ex. 1 ; 12 Jur. N. S. 989 ; 15 L. T. 313 346 Nye V. Moseley. 6 B. & C. 133 ; 9 D. & R. 165 368 0. Oak Pits Co., Re, 21 Ch. D. 322 ; 51 L. J. Ch. 768 ; 47 L. T. 7 ; 30 W. R. 759 Oakelev v. Ooddeen, 2 F. & F. 856 Oakley v. Monck, 4 H. & C. 251 ; 3 Id. 706 ; L. R. 1 Ex. 159 ; 34 L. J Ex. 137 ; 35 Id. 87 ; 11 Jur. N. S. 376 ; 12 L. T. 465 14 Id. 20 ; 13 W. R. 721 ; 14 Id. 406 . V. Portsmouth Co., 11 Exch. 618 ; 25 L. J. Ex. 99 ; 4 W. R 236 O'Brien v. Lewis, 32 L. J. Ch. 665 ; 9 Jur. X. S. 620, 764 ; 8 L. T 380, 683 ; 11 W. R. 716, 673 O'Brvne v. Hartington, Ir. R. 11 C. L. 445 .... Ockford V. Barelli, 20 W. R. 116 ; 25 L. T. 504 .... 433 470 506 204 114 630 331 TABLE OF CASES Oclclord V. Freston, 6 H. & N. 466 ; 30 L. J. Ex. 89 ; 7 Jur. N. S. 78 ; 3 L. T. 705 ; 9 W. R. 315 114 Odell V. Wake, 3 Camp. 394 ; 14 R. R. 763 70 Ogden V. Benas, L. R. 9 C. P. 513 ; 43 L. J. C. P. 259 ; 30 L. T. 683 ; 22 W. R. 805 458 Ogs V. Shunter, 1 C. P. D. 47 ; L. R. 10 C. P. 159 ; 44 L. J. C. P. 161 ; 45 Id. 44 ; 32 L. T. 114 ; 33 Id. 492 ; 23 W. R. 319 ; 24 Id. 100 737 630 533 O'Grady v. Caidw.-U, 21 W. R. 340 , . Oland i: Burdwick, Cro. Eliz. 460 ; 5 Co. Rep. 116 a ; Moore, 394 . Oldersbaw v. King, 2 H. & N. 399, 517 ; 27 L. J. Ex. 120 ; 3 Jur. N. S. ] 152 292, 295 Oliver 7-. Hunting, 44 Ch. D. 205 ; 59 L. J. Cli 255 ; 62 L. T. 108 ; 38 W. R. 618 ^ 297 Olliver V. King, 25 L. J. Ch. 427 ; 1 Jur. N. S. 1066 ; 2 Id. 312 ; 4 W. R. 382 Oneley's Case, Dyer, 355 b Onslow's Case, 2'Vent. 37 236, Onslow V. Corrie, 2 Madd. 330 V. Raplv, 3 Lev. 29 Com r. Bruce, 12 East, 225 ; 11 R. R. 367 . Oppenbeiui v. Russell, 3 B. & P. 42 ; 6 R. R. 604 V. Wbite Lion Hotel Co., L. R. 6 C. P. 51i . /32, 40 L. J. C. P. . 123, 231 ; 25 L. T. 93 ; 20 W. R. 34 Orcbis, Tbe, 15 P. D. 38 ; 59 L. J. A. 31 ; 62 L. T. 407 ; 38 W. R. 472 142 Orr r. Union Bank of Scotland, 1 Macq. 513 ; 2 C. L. R. 1566 . Orr-Ewing v. Orr-Ewiiig, 22 Ch. D. 456 ; 9 App. Cas. 34 ; 52 L. J. Cb. 529 ; 48 L. T. 555 ; 31 W. R. 464 Osbuldiston ■;;. Simpson, 13 Sim. 513 ; 7 Jur. 734 .... Osborn V. Gillett, L. R. 8 Ex. 88 ; 42 L. J. Ex. 53 ; 28 L. T. 197 ; 21 AV. R. 409 267, 279 Osborne v. Rogers, 1 Wms. Saund. 264 0s"().m1 r. Strode, 2 P. Wms. 245 O'Sullivan v. Tbomas, (1895) 1 Q. B. 698 ; 64 L. J. Q. B. 398 ; 72 L. T. 285 ; 43 W. R. 269 Ougier r. Jennings, 1 Camp. 505, n. ; 10 R. R. 739, n. Outbwaite v. Luntley, 4 Camp. 179 Owen V. Bodv, 5 A. & E. 28 ; 6 N. & M. 448 ; 5 L. J. K. B. i91 V. Burnett, 4 Tyr. 133 ; 2 C. & M. 353 ; 3 L. J. Ex. 76 . V. Owen, 3 H. & C. 88 ; 33 L. J. Ex. 237 ; 10 Jur. N. S. 11 L. T. 137 Owens V. Denton, 5 Tyr. 359 ; 1 C. M. & R. 711 ; 4 L. J. Ex. Oxlev V. James, 13 U'. & W. 209 ; 13 L. J. Ex. 358 . - V. Watts, 1 T. R. 12 ; 1 R. R. 133 .... 15 137 241 70 239 385 733 186 159 140 622 385 280 139 28 386 541 781 17 210 26 384 61 131 P. Padstow Association, Re, 20 Cb. D. 137 ; 51 L. J. Cb. 344 ; 45 L. T 774 ; 30 W. R. 326 Page 7J. Delries, 7 B. & S. 137 .... Paget V. Ede, 18 Ecj. 118 ; 43 L. J. Cb. 571 ; 30 L. T. 228 ; 22 W. R 625 V. I'ercbard, 1 Ks]). 205 .... Pain, Kx ]>.,-> B. & (J. 251 Painter V. Liv.-rj^ool Cias Co., 3 A. & E. 433 ; 6 N. & M. 736 ; 2 H. & W. 233 ; .-) !-. .1. M. C. 108 Paley v. J'.ir.b, IC L. T. IK) ; 8 J',. & S. 336 Palliscr's ('asc, uni'cpoiMcd ..... I'almeri;. Edwards, 1 Dougb 1H7, n. . 370 353 603 12 650 652 (565 595 97 TO VOLUME I. PAOR Palmer )■. Ekins, 2 Ld. Ravin. 1550 91 r. Grand Junction R. Co., 4 M. & W. 749 ; 7 J)uwl. 232 ; I 11. & 11. 489 ; 8 L. J. Ex. 129 ; 3 Jur. 559 . . . .200 r. Hutchinson, 6 App. Cas. 619 ; 50 L. .1. P. C. 62 ; 45 L. T. 180 030 v. L. B. & S. C. R. Co., L. R. 6 C. P. 194 ; 40 L. J. C. P. 133 . 203 V. Wick Co., (1894) A. C. 318 ; 71 L. T. 163 ; 6 R. 245 . 154, 390 Panton v. AVillianrs, 2 Q. B. 169 ; 1 G. & D. 504 ; 10 L. J. Ex. 545 . 261 Paradine v. Jane, Stvl. 47 629 Pardington t: S. Wales R. Co., 1 H. & N. 392 ; 26 L. J. Ex. 105 ; 2 Jur. N. S. 1210 ; 5 W. R. 8 213 Pardo V. Bingham, 4 Ch. 735 ; 39 L. J. Cli. 170 ; 20 L. T. 464 ; 17 W. R. 419^ 616, 621 Parqeter v. Harris, 7 Q. B. 708 ; 15 L. J. Q. B. 113 ; 10 Jur. 260 ... 93, 94 Parke, Exp., 18 Eq. 381 ; 43 L. J. Bk. 139 ; 30 L. T. 618 ; 22 W. R. 768 437 Parker v. Carter, 4 Hare, 400 26, 30 V. G. W. R. Co., 7 Scott, N. R. 835 ; 7 M. & Gr. 253 ; 13 L. J. C. P. 105 ; 8 Jur. 194 200 V. Ibbetson, 4 C. B. N. S. 346 ; 27 L. J. C. P. 236 ; 4 Jur. N. S. 536 ; 6 W. R. 519 551 V. Lewis, 8 Ch. 1035 ; 43 L. J. Ch. 281 ; 28 L. T. 91 ; 29 Id. 199 ; 21 W. R. 928 L50 V. g. E. R. Co., 2 C. P. D. 416 ; 46 L. J. C. P. 768 ; 25 W. R. 564 -208 Parkhurst v. Foster, 1 Salk. 387 ; 1 Ld. Raym. 479 ; 5 Mod. 427 ; Carth. 417 124, 125 larkins v. Scott, 1 H. & C. 153 ; 31 L. J. Ex. 331 ; 8 Jur. N. S. 593 ; 6 L. T. 394 ; 10 W. R. 562 280 larkinson r. Potter, 16 Q. B. D. 152 ; 55 L. J. Q. B. 153 ; 53 L. T. 818 ; 34 W. R. 215 ; 50 J. P. 470 630 larlement Beli^ie, The, 5 P. D. 197 ; 4 Id. 129 ; 48 L. J. A. 18 ; 40 L. T. 222 ; 42 Id. 273 ; 27 W. R. 692 ; 28 Id. 642 . . 625, 627, 628 Parnell v. Stedman, C. & E. 153 18 Put v. Eliason, 1 East, 92 ; 3 Esp. 210 28 Parry v. Nicholson, 13 M. & W. 788 ; 2 D. & L. 640 ; 14 L. J. Ex. 119 781 Parsioe v. Baily, 1 Salk. 76 ; 2 Ld. Rayni. 1039 325 Parsons v. GiuKell, 4 C. B. 545 ; 16 L. J. C. P. 227 ; 11 Jur. 437 . 429 Partington, v. Woodcock, 6 A. & E. 690 ; 5 N. & M. 672 ; 1 H. & W. 262 505 Prxtridge v. Bank of England, 9 Q. B. 396 ; 13 L. J. Q. B. 281 ; 8 Jur. 803 459, 464 V. Scott, 3 M. & W. 220 ; 1 H. & H. 31 ; 7 L. J. Ex. 101 270, 814 Pascal, Ex 2}., 1 Ch. I). 509 ; 45 L. J. Bk. 81 ; 34 L. T. 10 ; 24 W. R. 263 607, 618 Pasley v. Freeman, 3 T. R. 51 ; 1 R. R. 634 258 Passenger v. Brookes, 1 B. N. C. 587 ; 7 C. & P. 110 ; 1 Scott, 560 . 137 Paterson v. Powell, 9 Binq. 320, 620 ; 2 M. & Scott, 399 ; 2 L. J. C. P. 68 . . . . ' 474 Patman r. Harland, 17 Ch. D. 353 ; 50 L. J. Ch. 642 ; 44 L. T. 728 ; 29 W. R. 707 87 Patria, The, L. R. 3 A. & E. 436 ; 41 L. J. A. 23 ; 24 L. T. 849 . . 609 Patrick ?•. Colerick, 3 ]\I. & W. 483 ; 7 L. J. Ex. 135 ; 2 Jur. 377 . 135 Patscheider r. G. W. R. Co., 3 Ex. D. 153 ; 38 L. T. 149 ; 26 W. R. 268 .225 Patten r. Rea, 2 C. B. X. S. 606 ; 26 L. J. C. P. 235 ; 3 Jur. N. S. 892 ; 5 W. R. 689 ... 351 Patterson -?'. Tash, 2 Str. 1178 693 Pattinson v. Lnckley, L. R. 10 Ex. 330 ; 44 L J. Ex. 180 ; 33 L. T. 360 ; 24 W. R. 224 . 787, 788 Pattle V. Anstrutl;er, 69 L. T. 175 ; 41 W. R. 625 4 R. 470 . . 982 TABLE OF CASP:S 28 746 143 363 814 21 \\. li. 334, 335 . 432 224; 6 671, 672 52 368 381 468 I'AGE Paul, Re, 24 Q. B. D. 247 ; 59 L. J. Q. B. 30 ; 61 L. T. 835 . . 538 Paull V. Simpson, 9 Q. B. 365 ; 15 L. J. Q. B. 382 ; 11 Jur. 13 . .47 Pauncefoot's Case, unreported . . 5, 18 Pawle V. Gunn, 4 B. N. C. 445 ; 6 Scott, 286 ; 1 Arn. 200 ; 7 L. J. C. P. 206 141, 142 Pavne v. Brecon, 3 H. & N. 572 ; 27 L. J. Ex. 495 ; 6 W. R. 801... 377, 379 — ^ — V. Johnson, cited 1 Tvr. 284 301 V. Mortimer, 28 L. .J. Ch. 437, 716 ; 5 Jur. N. S. 307, 749 ; 7 W. R. 378, 646 V. Wilson, (1895) 1 Q. B. 653 ; (1895) 2 Q. B. 537 ; 64 L. J 328 ; 72 L. T. 110 ; 73 Id. 12 ; 43 W. R. 2.50, 657 . Paynter v. Williams, 1 C. & Isl. 810 ; 3 Tyr. 894 ; 2 L. J. M. C. Paxton V. Popham, 9 East, 408 Peachev v. Rowland, 13 C. B. 182 Peacock, Ex jj., 8 Ch. 682 ; 42 L. J. Bkcy. 78 ; 28 L. T. 830 755 V. Purvis, 2 B. & B. 362 ; 5 Moore, 79 . V. The Queen, 4 C. B. N. S. 264 ; 27 L. J. C. P. AV. R. 517 V, Rhodes, 2 Dourrl. 634 457 Pearce v. Brooks, L. R. 1 Ex. 213 ; 35 L. J. Ex. 134 ; 12 Jur. N. S 342 ; 14 L. T. 288 ; 14 W. R. 614 V. Morrice, 2 A. & E. 84 ; 4 N. & M. 48 ; 4 L. J. K. B 21 Pearse r. Pearse, 9 Sim. 430 ....... Pearson, i.V, (1892) 2 Q. B. 263 ; 61 L. J. Q. B. 585 ; 67 L. T. 367 9 M. B. R. 185 ; 40 W. R. 532 607 V. Scott, 9 Ch. D. 198 ; 47 L. J. Ch. 705 ; 38 L. T. 747 ; 26 W. R. 796 549, 559 V. Skelton, 1 M. & W. 504j 1 T. & G. 848 . . . 155, 390' Pease v. Chaytor, 1 B. & S. 658 ; 3 Id. 620 ; 32 L. J. M. C. 121 ; 9 Jur. F. S."664 ; 8 L. T. 613 ; 11 W. R. 563 .... 642, 657 Pedlev '?. Davis, 10 C. B. N. S. 492 ; 30 L. J. C, P. 374 ; 8 Jur. N. S. 263 ; 5 L. T. 253 642 V. Morris, 61 L. J. Q. B. 21 ; 65 L. T. 526 ; 40 W. R. 42 . 265 Peek r. N. Stafford. R. Co., 32 L. J. Q. B. 241, 270 ; 29 Id. 97 ; 27 Id. 465 ; E. B. & E. 958, 986 ; 10 H. L. C. 473 ; 4 Jur. N. S. 1078 ; 6 Ifl. 370 ; 9 Id. 914 ; 1 L. T. 407 ; 8 Id. 768 ; 6 W. R. 797 ; 8 Id. 364 ; 11 Id. 1023 . . . 20.5, 210, 213, 214, 216, 218, 297, 551 Peer v. Humphrey, 2 A. & E. 495 ; 4 N. & M. 430 : 4 L. J. K. B. 100 455 Peerless, Be, ] Q. B. 143 Peeters v. Opie, 2 Wms. Saund. (1871 ed.) 742 . Peirce v. Corf, L. R. 9 Q. B. 210 ; 43 L. J. Q. P 52 ; 29 L. T. 22 W. R,. 299 Pellatt V. lioosev, 31 L. J. C. P. 281 ; 8 Jur. >'. S. 1107 Penerlo v. Johnscm, 22 W. R. 103 ; 29 L. T. 452 Pen fold /'. Ahhott, 32 L. J. Q. B. 67 ; 9 Jur. N. S. 517 ; 7 L. T 11 W. P. 169 Peidiall V. Elvvin, 1 Sm. & Giff. 258 ; 1 W. R. 273 . P. i^ O. Ste;im Nav. Co. v. Shand, 3 Moo. P. C. N. S. 272 ; 13 1049 Penh-v r. Walts, 7 M. & W. 601 ; 10 L. J. Ex. 229 . pen II r. Baltimore, 1 Ves. Sen. 444 I'limant's (!as.', 3 Co. Rep. 64 a iVmirll r. Atl.Mil.orou.^'h, 4 Q. B. 868 ; 1). & l\r. 145 ; 12 L. J. :'.70 ; 7 Jur. 927 V. Dawson, 18 (J. B. 355. V. Uxl)n(l. R. 216, 268 . Q. B. 225 ; 5 W. R. .eb. 698 612 650' 137 . 919 ; . 297, 322 37, 39, 338 629' . 384; . 65, 161 1& W. R. 210 . 150, 166 603 41 Q. P.. 197 13 . 685 ; 671 18 ()63 lOf? TO VOLUME I. PAGE Percival v. Stamp, 9 Excli. 1G7 ; 2 C. L. R. 282 ; 23 L. J. Ex. 25 ; 2W. R. 14 113 Perhaui, Be, 5 H. & N. 30 ; 29 L. J. M. C. 33 ; 5 Jur. N. S. 1221 . 050 Perls V. Saalfiel.l, (1892) 2 Ch. 149 ; Gl L. J. Ch. 409 ; 6G L. T. GG6 ; 40 W. R. 548 412 Perriiig v. Harris, 2 M. & Rob. 5 231 V. Hone, 4 BiiiK- 28 ; 12 Moore, 135 .... 781, 782 Perrott v. Perrott, 14 East, 423 785 Perrv v. Attwood, 6 E. & B. 691 ; 25 L. J. Q. B. 408 ; 2 Jur. N. S. 1071 ; 4 W. R. G08 332 V. Barnett, 15 Q. B. D. 388 ; 14 Id. 4G7 ; 54 L. J. Q. B. 351, 4G6 ; 53 L. T. 585 549, 554, 559 V. Fitzhowe, 8 Q. B. 757 134 V. Skinner, 2 xM. & W. 471 ; M. & H. 122 ; 6 L. J. Ex. 124 ; 1 Jur. 433 350 Persse v. Persse, 7 CI. & F. 279 ; 1 West, 110 ; 4 Jur. 358 . . 26, 30 Peru (Republic of) v. We^uelin, 20 Ecj. 140 ; 44 L. J. Ch. 583 ; 32 L. T. 426 ; 23 W. R. 776 628 Peruvian Guano Co. v. Bockwoldt, 23 Ch. D. 225 ; 52 L. J. Ch. 714 ; 48 L. T. 7 ; 31 W. R. 851 623 Peter v. Compton, Skin. 353 303, 306 -y. Rich, 1 Cha. R. 19 151 Peto V. Brighton R. Co., 32 L. J. Ch. G77 ; 1 H. & M. 468 ; 9 L. T. 227 ; ll"W. R. 874 339 Phelan v. Tedcastle, 15 L. R. Ir. 169 298 Phelps V. L. & N. W. R. Co., 19 C. B. N. S. 321 ; 34 L. J. C. P. 25!) ; 11 Jur. N. S. 652 ; 12 L. T. 496 ; 13 W. R. 782 . . . . 202 Phelps Co. V. Comber, 29 Ch. D. 813 ; 26 Id. 755 ; 53 L. J. 111. 1134 ; 54 Id. 1017 ; 51 L. T. 16 ; 52 Id. 872 ; 33 W. R. 829 .. . 733 Philips V. Beale, 26 Ch. D. 621 ; 54 L. J. Ch. 80 ; 50 L. T. 433 ; 32 W. R. 665 . 602 V. Biugs, Hard. 164 154, 384 Phillips V. Allan, 8 B. & C. 477 ; 2 M. & Ry. 576 . . . .619 ■ V. Briard, 1 H. & N. 21 ; 25 L. J. Ex. 233 . . . .558 ■ V. Clark, 2 C. B. N. S. 156 ; 26 L. J. C. P. 168 ; 3 Jur. X. S. 467 ; 5 W. R. 582 220 V. Dickson, 8 C. B. N. S. 391 154 V. Edwards, 3 H. & N. 813 ; 28 L. J. Ex. 52. . . . 223 V. Eyre, L. R. 6 Q. B. 1 ; 4 Id. 225 ; 9 B. & S. 343 ; 10 Id. 1004 ; 38 L. J. Q. B. 113 ; 40 Id. 28 ; 19 L. T. 770 ; 22 Id. 869 ; 17 W. R. 375 602, 605, 618 V. Henson, 3 C. P. D. 26 ; 47 L. J. C. P. 273 ; 26 W. R. 214 . 436 V. Huth, 6 M. & W. 572 ; 10 L. J. Ex. 65 . . . . 744 ('. Innes, 4 Cl. & F. 234 . . 550 V. :\lullings, 7 Ch. 244 ; 41 L. J. Ch. 211 ; 20 W. R. 129 . 16 V. Navlor, 3 H. & N. 14 ; 28 L. J. Ex. 225 ; 5 Jur. N. S. 966 ; 7 W. R. 504 . 260 V. Whitsed, 2 E. & E. 804 ; 29 L. J. Q. B. 164 ; 6 Jur. N. S. 727 ; 2 L. T. 278 ; 8 W. R. 494 497 Philpot V. St. George's Hospital, 6 H. L. C. 338 ; 21 Beav. 134 ; 25 L. J. Ch. 33 ; 27 Id. 70 ; 1 Jur. N. S. 1102 ; 3 Id. 1269 ; 5 W. R. 845 369 Philpott V. Lehain, 35 L. T. 855 340 Phoenix, Re, 4 Ch. D. 108 ; 44 L. J. Ch. 683 ; 46 Id. 115 ; 33 L. T. 403 ; 35 Id: 776 ; 24 W. R. 19 ; 25 Id. 187 724 Phos]jhate Co. v. Green. L. R. 7 C. P. 43 ; 25 L. T. 636 . 350, 351, 380 Pianciani r. L. & S. W.R. Co., 18 C. B. 226 119 Pickard r. Smith, 10 C. B. N. S. 470 ; 4 L. T. 470 . . . 800, 816 Picker v. London and Couutv Bank, 18 Q. B. D. 515 ; 56 L. J. Q. B. 299 ; 35 AV. R. 469 . . ' 463 Pickering r. Ilfracombe Rail. Co., L. R. 3 C. P. 235 ; 37 L. J. C. P. 118 ; 17 L. T. 650 ; 16 W. R. 458 372 S.L.C. — VOL. I. J TABLE UF CASES PAGE Pickerinc; v. James, L. R. 8 C. P. 489 ; 42 L. J. C. P. 217 ; 29 L. T. 210 ; 21 W. R. 786 285 Pickford v. Grand Junction R. Co., 8 M. & W. 372 ; 9 Dowl. 766 ; 10 L. J. Ex. 342 ; 2 Rail. Cas. 592 ; 5 Jur. 731 . . . 202 r. Grand Junction R. Co., 10 M. & W. 399 ; 3 Rail. Cas. 193 200 Pierce v. Bartruni, 1 Cowp. 269 393 Piggot V. Eastern Counties R. Co., 3 C. B. 229 ; 15 L. J. C. P. 235 ; 10 Ji;r. 571 825 Piggott V. Birtles, 1 M. & W. 441 ; 2 Gale, 18 ; T. & G. 729 ; 5 L. J. Ex. 193 434 Pigot's Case, 11 Co. Rep. 27 a . . 749, 751, 754, 776, 778, 783, 785 Pigot V. Cubley, 15 C. B. N. S. 701 ; 33 L. J. C. P. 134 ; 10 Jur. N. S. 318 ; 9 L. T. 804 ; 12 W. R. 467 192 Pike V Onglev, 18 Q. B. D. 708 ; 56 L. J. Q. B. 373 ; 35 W. R. 534... 545, 557 Pilkington ^;. Scott, 15 M. & W. 657 ; 15 L. J. Ex. 329 . . 406, 414 Pillans V. Van Mierop, 3 Burr. 1664 771 Pinhorn v. Souster, 8 Excli. 763 ; 22 L. J. Ex. 18, 266 ; 1 W. R. 336 521 Pinnel's Case, 5 Co. Rep. 117 a 327, 328, 329, 337 Pitclier V. Bailev, 8 East, 171 390 V. Tovey, 4 Mod. 71 ; 1 Salk. 80 ; 1 Show. 340 . . . 69 Pitt V. Dacre, 3 Ch. D. 295 ; 45 L. J. Cli. 796 ; 24 W. R. 943 . . 617 V. Purssord, 8 M. & W. 538 ; 5 Jur. 611 . . . . 157, 158 Pittard V. Oliver, (1891) 1 Q. B. 474 ; 60 L. J. Q. B. 219 ; 64 L. T. 758 ; 39 W. R. 311 ; 55 J. P. 100 266 Pixley V. Clark, 32 Barl.our's Rep. (N. Y.) 268 812 Place V. Fagg, 4 M. & Rv. 277 426 Planck V. Anderson, 5 T. R. 37 274 Plavfair v. Musgrove, 14 M. & W. 239 ; 3 D. & L. 72 ; 15 L. J. Ex. 26 ; 9 Jur. 783 132 Plavford V. U. K. Telegraph Co., L. R. 4 Q. B. 706 ; 10 B. & S. 759 ; 38 L. J. Q. B. 249 ; 21 L. T. 21 ; 17 W. R. 968 . . . .222 Plevins v. Downing, 1 C. P. D. 220 ; 45 L. J. C. P. 695 ; 35 L. T. 263 300 Pluck V. Digger, 5 Bligh, N. S. 31 ; 2 Dow. & CI. 180 ... 96 Pole V. Harrol)in,9 East, 416,n 363,367 Pollen V. Brewer, 7 C. B. N. S. 371 ; 6 Jur. N. S. 509 ... 134 Pollock V. Stacy, 9 Q. B. 1033 ; 16 L. J. Q. B. 132 ; 11 Jur. 267... 96, 97, 98 Pontifex v. Foord, 12 Q. B. D. 152 ; 53 L. J. Q. B. 321 ; 49 L. T. 808 ; 32 W. R. 316 151 V. l\Iid. R. Co., 3 Q. B. D. 23 ; 47 L. J. Q. B. 28 ; 37 L. T. 403 ; 26 AV. R. 209 223 Ponting V. Noakes, (1894) 2 Q. B. 281 ; 63 L. J. Q. B. 549 : 70 L. T. 842 ; 42 W. R. 508 ; 58 J. P. 559 ; 10 R. 265 .... 272, 825 Poole's Case, Moore, 810 419 , 1 Salk. 368 426 Poole V. Hill, 6 M. & W. 835 ; 9 Dowl. 300 ; 10 L. J. Ex. 81 . . 551 Poole, Mavor of, v. Whitt, 15 M. & W. 571 ; 16 L. J. Ex. 22 . . 507 Pooley V. (,)uilter, 2 De G. & J. 327 ; 27 L. J. Ch. 180 ; 4 Jur. N. S. 45 ; 6 W. II. 216 369 Pope V. I'.iggs, 9 V>. & C. 245 ; 4 M. & Ry. 193 505 Pophani V. J'.athurst, Amb. 68 452 r. Pickbnrn, 7 H. & N. 891 ; 31 L. J. Ex. 133 ; 8 Jur. N. S. 179; 5 B. T. 816 ; 10 W. R. 324 264 Pojiplewell r. Hoilkinson, L. J{. 4 Ex. 248; 38 L. J. Ex. 126; 20 L. T. 578 ; 1 7 W. Jl. 806 273 Portalis v. Tetley, 5 Ivj. 140 ; 37 L. J. Ch. 139 ; 17 L. T. 314 ; 10 A\'. W. 503 741 Porter i;. French, 9 Jr. L. R. 514 60,97 Portniore v. liunn, 1 B. & C. 694 ; 3 D. & R. 145 . . . 79, 90, 96 Portugal (King ot) v. llussell, 31 L. J. Cli. 34 ; 3 Gill". 287 ; 5 L. T. 277 ; 7 Jur. N. S. 1143 ; 10 W. R. 36 629 TO VOLUME I. PAGE Potlionier v. Dawson, Holt, 383 l'.)2 Pott V. Todlmntpr, 2 Coll. C. C. 7G ; 9 Jiir. 589. . . . 29,30 Potter V. Duttield, 18 Eq. 4 ; 43 L. J. Ch. 472 ; 22 W. R. 585 . . 298 Poultney v. Holmes, 1 Str. 405 97, 98 Poulton V. L. & S. W. R. Co., L. R. 2 Q. B. 534 ; 36 L. J. Q. R. 294 ; 17 L. T. 11 ; 8 B. & S. 616 352 Powell, Ex 2]., 1 Ch. D. 501 ; 45 L. J. Bk. 100 ; 34 L. T. 224 ; 24 W. R. 37e V. Aiken, 4 K. & J. 343 540 527 V. Cobl), 29 Ch. 1). 486 ; 54 L. J. Ch. 962 ; 52 L. T. 183... 001, 602 785 43 L.T. 562... 826, 828 V. Divett, 15 East, 29 ; 13 R. R. 358 V. Fall, 5 Q. B. D. 597 ; 49 L. .J. Q. B. 428 V. Horton, 2 B. N. C. 668 ; 2 Hodges, 12 ; 3 Scott, IK) ; L. J. C. P. 204 .... '. 547 Power V. Wigmore, L. R. 7 C. P. 386 ; 27 L. T. 148 .... 672 Powers -y. Fowler, 4 E. &B. 511 297 Powles V. Hider, 6 E. & B. 207 ; 2 Jur. N. S. 472 ; 4 W. R. 492 . 353 V. Page, 3 C. B. 16 ; 15 L. J. C. P. 217 ; 10 Jur. 526 . . 334 Pownal V. Ferrand, 6 B. & C. 439 ; 9 D. & R. 603 . . . .149 Powsely V. Blackman, Cro. Jac. 659 ; Palmer, 201 .... 515 Preston v. Merceau, 2 W. Bl. 1249 313 Price V. Easton, 4 B. & Ad. 433 ; 1 N. & M. 303 ; 2 L. J. K. B. 51 . 139 • V. (3reen. See Green v. Price . . . . . . .414 V. Harwood, 3 Camp. 108 108 V. Jenkins, 4 Ch. D. 483 ; 5 Id. 619 ; 46 L.J. Ch. 214,805 ; 36 L. T. 237 ; 37 Id. 51 ; 25 W. R. 429 .. . 26, 28 V. Neal, 3 Buir. 1354 ; 1 W. Bl. .390 752 V. Shnle, 2 Molloy (De Jure Mar.), c. 10, s. 28. ..753, 755, 764, 765, 779 V. Williams, 1 M.' & W. 6 ; 1 Gale, 362 ; T. & G. 197 ; 5 L. J. Ex. 129 551 V. Worwood, 4 H. & K. 512 ; 28 L. J. Ex. 329 ; 5 Jur. N. S. 472 39, 45 Prince v. Oriental Bank, 3 App. Cas. 325 ; 47 L. J. P. C. 42 ; 38 L. T. 41 ; 26 W. R. 543 785 of Wales Ass. Co. v. Harding, E. B. & E. 183 ; 27 L. J. Q. B. 297 ; 4 Jur. N. S. 851 . . " 379, 380 Prioleau v. U. S. of America, 2 Eq. 659 ; 36 L. J. Ch. 36 ; 14 L. T. 700 ; 14 W. R. 1012 62^ Prior's Case, The 56, 64, 72, 73 Prior V. Hemlnow, 8 M. & W. 873 ; 10 L. J. Ex. 371 ... 152 Pritchard v. Hitchcock, 6 Scott, N. R. 851 ; 6 M. &: Gr. 151 ; 12 L. J. C. P. 322 326 Proctor V. Sargent, 2 M. & Gr. 20 ; 2 Scott, K R. 289 ; 10 L .J. C. P. 34 403 V. Webster, 16 Q. B. D. 112 ; 55 L. J. Q. B. 150 ; 53 L. T. 765 265 Prodgers v. Langham, 1 Sid. 133 27 Prole V. Wiggins, 3 B. N. C. 230 ; 3 Scott, 601 ; 2 Hodges, 204 ; 6 L. J. C. P. 2 363, 367 Propert v. Parker, 1 Russ. & M. 625 320 Prosser v. Rowe, 2 C. & P. 421 279 Prvce V. Belcher, 3 C. B. 58 ; 4 Id. 866 ; 4 D. & L. 238 ; 15 L. J. C. P. 305 ; 16 Id. 264 ; 11 Jur. 675 259, 285 Pugh V. Griffith, 7 A. & E. 827 ; 3 N. & P. 187 ; 7 L. J. Q. B. 169 ; 2 Jur. 614 106, 109 Pulbrook V. Lawes, 1 Q. B. D. 284 ; 45 L. J. Q. B. 178 ; 34 L. T. 95 308 Pulling V. G. E. R. Co., 9 Q. B. D. 110 ; 51 L. J. Q. B. 453 ; 30 W. R. 798*; 46 J. P. 617 267 Pulvertoft V. Pulvertoft, 18 Ves. 84 ; 11 B. R. 151 .... 29 Punnett, Ex jk, 16 Ch. D. 226; 50 L. J. Ch. 212 ; 44 L. T. 226 ; 29 W. R. 129 518, 523 /2 TABLE OF CASES PAGE Purcell V. Sowler, 2 C. P. D. 215 ; 1 Id. 781 ; 46 L. J. C. P. 308 ; 36 L. T. 416 ; 25 W. R. 362 264 Pyke, Ex p., 8 Cli. D. 754 ; 47 L. J. Bk. 100 ; 38 L. T. 923 ; 26 W. R. 806 369 Pym V. G. N. R. Co., 4 B. & S. 396 ; 2 Id. 760 ; 31 L. J. Q. B. 249 ; '32 Id. 377 ; 8 Jur. N. S. 819 ; 10 Id. 199 ; 6 L. T. 537 ; 8 Id. 734 ; 10 W. R. 737 ; 11 Id. 922 267 Q. QuARMAN V. Burnett, 6 M. & W. 499 ; 9 L. J. Ex. 308 ; 4 Jur. 969 209, 277 Quartz Hill Co. v. Eyre, 11 Q. B. D. 674 ; 52 L. J. Q. B. 488 ; 49 L. T. 249 ; 31 W.R. 668 261,262 Quilter v. Mapleson, 9 Q. B. D. 672 ; 52 L. J. Q. B. 44 ; 47 L. T. 561 ; 31 W. R. 75 51 Quincey v. Sharpe, 1 Ex. D. 72 ; 45 L. J. Ex. 347 ; 34 L. T. 495 ; 24 W. R. 373 570 <^uinlan v. Barber, Bat. 47 279 R. R. V. Abingdon, 1 Esp. 226 ; 5 R. R. 733 265 — V. Ayardslev, 5 Dowl. 19 ........ 242 — V. Allan, 4 B. & S. 915 ; 33 L. J. M. C. 98 ; 10 Jur. N. 8. 796 ; 9 L. T. 761 659 — V. Allen, unreported (see 5 D. & R. 490) 661 — -;;. , 15 East, 333 . . . . ' 658 — V. Allin[,^ton, 2 Str. 678 638 — V. Arnould, 8 E. & B. 550 ; 27 L. J. M. C. 92 ; 4 Jur. N. S. 162 ; 6 W. R. 61 644 — V. Asliwell, 16 Q. B. D. 190 ; 55 L. J. M. C. 65 ; 53 L. T. 773 ; 34 W. R. 297 ; 50 J. P. 181 ; 16 Cox, C. C. 1 . . . . 230 — V. Badger, 6 E. & B. 137 ; 25 L. J. M. C. 81 ; 2 Jur. N. S. 419 . 664 — V. Barton, 13 Q. B. 389 ; 18 L. J. M. C. 56 ; 13 Jur. 232 ; 3 New Sess. Cas. 470 654 — i;. Bass, 5 T. R. 251 659 — V. Battanis, 1 East, 298 659 — V. Bellamy, 1 B. & C. 500 654 — V. Berkeley, 1 Ken. 80 659 — V. Berry, 28 L. J. M. C. 86 ; Bell, C. C. 46 ; 8 Cox, C. C. 121 ; 5 Jur. N. S. 320 ; 7 W. R. 229 652 — V. Binnev, 1 E. & B. 810 ; 1 C. L. R. 236 ; 22 L. J. M. C. 127 ; 17 Jur. ^854 655 — V. Bird, 2 Siiow. 87 106 — V. Bloxani, 1 A. & E. 386 ; 3 N. & ]\I. 385 ; 3 L. J. M. V. 115 . 659 — V. Bolton, 1 Q. r>. 66 ; 4 P. & D. 679 ; 10 L. J. M. C. 49 ; 5 Jur. 1154 649,660,663,664 - V. Boteler, 33 L. J. M. C. 101 ; 4 11 & S. 959 ; 10 Jur. N. !S. 798 ; 28 J. P. 453 ; 12 W. R. 466 644 — V. Bouf,'liev, 4 T. R. 281 ; 2 R. R. 381 659 — V. Boultl.ee, 4 A. & E. 498 ; 6 N. k l\. 26 ; 5 L. J. M. C. 57 . . 658 — V. Bradley, 70 L. T. 379 ; 63 L. J. ]\r. C. 183 ; 58 J. P. 199 ; 17 Cox, C. C.'739 ; 10 R. 183 668 — V. liradsliaw, 29 L. J. M. C. 176 ; 6 Jur. N. S. 629 ; 8 W. R. 435 . 644 — V. lircwers' Co., 3 V,. & C. 172 ; 4 D. & R. 492 .... 242 — V. Brickliall, 33 7;. J. M. C. 156 ; 10 Jur. N. S. 677 ; 10 L. T. 385 ; 12 W. R. 826 647 TO VOLUxME 1. PAGE R V. Bridge, 24 Q. B. D. 60.0 ; 59 L. J. M. C. 49 ; 62 L. T. 297 ; 38 W. R. 464 ; 54 J. P. 629 ; 17 Cox, C. C. 66 . . . . 672 — V. Bridger, 1 M. & W. 145 ; T. & G. 437 ; 5 L. J. Ex. 127 . .18 — V. Bristol JJ., 3 E. & B. 479, n. ; 18 Jur. 426, n. . . . 644, 662 — V. & Ex. R. Co., 1 P. & D. 170, n. ; 11 A. & E. 202, n. . 668 — V. Brown, 7 E. & B. 757 ; 26 L. J. M. C. 183 ; 3 Jur. N. S. 745 ; 5 W. R. 625 ; 21J. P. 357 644 — V. Browne, 13 Q. B. 654 644 — V. Buckinghamshire J J., 3 Q. B. 800 ; 2 G. & D. 560 ; 12 L. .J. M. C. 29 ; 7 Jur. 256 660, 662 — V. Bunkall, 33 L. J. M. C. 75 ; L. & C. 371 ; 9 Cox, C. C. 419 ; 10 Jur. N. S. 216 ; 9 L. T. 778 ; 12 W. R. 414 . . . . 230 — V. Cambridge (Recorder of), 8 E. & B. 637 ; 27 L. J. M. C. 160 ; 4 Jur. N. S. 334 ; 6 W. R. 80 663 — V. Cambridgeshire JJ., 3 B. & Ad. 887 ; 1 L. J. M. C. 97 . . 659 — V. , 4 A. & E. Ill ; 5 N. & M. 440 ; 1 Har. & W. 600 668, 669 — V. Central C. C. (JJ. of), 18 Q. B. D. 314 ; 17 Id. 598 ; 55 L. J. AI. C. 183 ; 56 Id. 25 ; 55 L. T. 486 ; 56 Id. 352 ; 35 W. R. 243 ; 50 J. P. 727 ; 51 Id. 229 ; 16 Cox, C. C. 196 . . .660 — V. Chandler, 1 Salk. 378 ; 1 Ld. Ravm. 581 .... 650, 651 — V. Clia»trell, L. R. 10 Q. B. 587 ; 44 L. J. M. C. 94 ; 33 L. T. 305 ; 23 W. R. 707 658, 660, 661 — V. Cheltenham Commissioners, 1 Q. B. 467 ; 1 G. & D. 167 ; 10 L. J. M. C. 99 ; 4 Jur. 1060 663, 668 — V. Cheshire JJ., 5 B. & Ad. 439 ; 2 N. & M. 827 ; 2 L. J. M. C. 95 646 — V. , 1 P. & D. 88 ; 8 A. & E. 398 ; 8 L. J. M. C. 1 663, 670 — V. Christopher, 28 L. J. M. C. 35 ; Bell, C. C. 27 ; 8 Cox, 91 ; 5 Jur. N. S. 24 ; 7 W. R. 60 190 — V. Clarke, 1 Cowp. 35 651, 653 — V. Coggan, 6 East, 431 ; 2 Smith, 417 ; 8 R. R. 509 . . .242 — V. Cotton, 15 Q. B. 569 ; 4 New Sess. Cas. 291 ; 19 L. J. M. C. 233 ; 14 Jur. 788 644 — V. Cowper, 24 Q. B. D. 60, 533 ; 59 L. J. Q. B. 26, 265 ; 62 L. T. 583 ; 38 W. R. 207, 408 323 — V. Cox, 2 Burr. 786 635 — V. Cridland, 7 E. & B. 853 ; 27 L. J. M. C. 28 ; 3 Jar. N. S. 1213 653, 664, 665 — V. Crisp, 7 East, 389 ; 3 Smith, 377 650 — V. Croke, 1 Cowp. 26 649 — V. Cutlmsh, L. R. 2 Q. B. 379 ; 36 L. J. M. C. 70 ; 16 L. T. 282 ; 10 Cox, C. C. 489 655 — V. Davies, 5 T. R. 626 ; 2 R. R. 683 658 — V. Dayman, 7 E. & B. 672 ; 26 L. J. M. C. 128 ; 3 Jur. X. S. 744 ; 5 W. R. 758 644, 662, 670 — V. Denbighshire J J., 1 B. & Ad. 616 669 — V. Dickenson, 7 E. & B. 831 ; 26 L. J. M. C. 204 ; 3 Jur. X. S. 1076 ; 5 W. R. 654 661 — V. Dimpsey, 2 T. R. 96 654 — V. Doljbyn, 2 Salk. 474 650 — V. Doutre, 9 App. Cas. 745 ; 53 L. J. P. C. 85 ; 51 L. T. 669 . 146 — V. Drury, (1894) 2 Ir. R. 489 659 — V. Dullingham, 8 A. & E. 858 ; 1 P. & D. 172 ; 8 L. J. Q. B. 37 . 242 — V. Dunn, 7 E. & B. 220 ; 26 L. J. M. C. 74 ; 3 Jur. X. S. 341 . 644 — V. E. Counties R. Co., 10 A. & E. 531 ; 2 P. & D. 648 ; 8 L. J. Q. B. 340 662 — V. E. Counties R. Co., 10 M. & W. 58 ; 6 Jur. 875 ... 640 — V. , 5 E. & B. 974 ; 24 L. J. M. C. 49 ; 2 Jur. X. S. 161 . 644 TABLE OF CASES E. V. — V. — V. Edwards, 13 Q. B. D. 586 ; 53 L. J. M. C. 149 ; 51 L. T Ehvell, 2 Str. 794 ; 2 Ld. Raym. 1514 ; 1 Se.ss. Cas. 360 Ely JJ., 5 E. & B. 489 ; 25 L. J. M. C. 1 ; 1 Jur. N. S. 4 W. R. 5 Farmer, (1892) 1 Q. B. 637 ; 61 L. J. M. C. 65 ; 65 L. T. 40 W. E. 228 ; 56 J. P. 341 ; 17 Cux, C. C. 413 Fletcher, 2 Q. B. D. 43 ; 46 L. J. M. C. 4 ; 35 L. T. 538 W. E. 149 , 51 L. T. 334 ; 32 W. E. 828 Fuller, 1 Ld. Eavm. 509 ; 12 Mod. 309 . Ga^e, 1 Str. 546"; 8 Mod. 64 . . . Giilyard, 12 Q. B. 527 ; 17 L. J. M. C. 153 586 12 Jur. 655 ; 11 Cox,C. C. E. 1174 . 103 ; 37 L. J. 1 L. 6R. J. M. C. E. 420 20 Glossop, 4 B. & Aid. 616 . Glvde, L. E. 1 G. C. E. 139 107 ; 18 L. T. 613 ; 16 W, Goodenoui,di, 2 A. & E. 463 Gravesend, 3 B. & Ad. 240 ; Great Marlow, 2 East, 244 ; Hall, 1 T. E. 320 Hanson, 4 B. & Aid. 519 . Harris, 7 T. R. 238 . Harrison, 3 Burr. 1323 ; 1 ^Y. Bl. 372 , 8 T. E. 508 ; 5 R. E. 424 . Hartley Union, 1 Q. B. 677 ; 10 L. J. M. C. 161 ; 1 G. & D. 732 Hassali, 30 L. J. M. C. 175 ; L. &C. 58 ; 8 Cox, C. C. 491 ; 7 Jur. N. S. 1064 ; 4 L. T. 561 ; 9 W. R. 708 . PAGE . 656 . 654 1017 ; . 655 736; . 664 ; 25 . 660 . 652 . 650 . 653 669, 670 . 653 M. C. . 190 . 659 . 381 663, 667 651, 653 . 657 653 393 650 649 230 653 637 655 242 662 644 Hawks, 2 Str. 858 Heber, 2 Str. 915 Hellier, 17 Q. B. 229 ; 21 L. J. M. C. 3 ; 15 Jur. 901 Hendon (Lord of the Manor of), 2 T. R. 484 ; 1 R. R. 527 Hewes, 3 A. & E. 725 ; 5 L. J. M. C. 45 Hig£,dnson, 31 L. J. M. C. 189 ; 2 B. & S. 471 ; 8 Jur. N. S. 1176 Hig'ham, 7 E. & B. 557 ; 26 L. J. M. C. 116 ; 3 Jur. N. S. 691 ; 5 W. R. 507 646 Hodgson, 9 L. T. 290 659 Holbrook, 4 Q. B. D. 42 ; 47 L. J. Q. B. 35 ; 37 L. T. 530 ; 26 W. R. 144 ; 13 Cox, C. C. 650 154 Huggins, 2 Ld. Raym. 1574 ; 2 Str. 882 439 Hughes, 4 Q. B. 1). 614 ; 48 L. J. M. C. 151 ; 40 L. T. 685... 649, 652 Huntley, 3 E. & B. 172 ; 2 C. L. R. 246 ; 23 L. J. M. C. 106 ; 18 Jur. 745 655 Hutchings, 5 Q. B. D. 353 ; 6 Id. 300 ; 49 L. J. M. C. 64 ; 50,Id. 35 ; 42 L. T. 766 ; 44 Id. 364 ; 28 W. R. 595 ; 29 Id. 724 ; 45 J. P. 504 648 Ingham, 17 Q. B. 884 ; 21 L. J. M. C. 125 ; 16 Jur. 526 . . 644 Ipswich (Recorder of), 8 Dowl. 103 ; 1 W. W. & H. 337 . . 657 Iveus, 7 C. & P. 213 125 James, 1 East, 303, n 659 Jarvis, 1 Burr. 148 651 Jennings, (1896) 1 Q. B. 64 Add. 652 Johnson, 1 Str. 261 652 Jukes, 8 T. R. 536 ; 5 R. R. 445 651, 657 Kent, 2 Ld. Raym. 1546 650 Kent JJ., 3 B. & Ad. 250 ; 1 L. J. M. C. 29 ... . 659 Keyn, 2 Ex. 1). 63 ; 46 L. J. 1\L C. 17 ; 13 Cox, C. C. 403 . 607 Kingsl)v, 15 J. ]*. 65 653 Kingsloii-ui)on-Thanios J J., E. J',. &E. 256 ; 27 L. J. M. C. 199 ; 4.)ur. X. S. 758 ; 6 W. R. 551 644 Landiardc, L. II. 1 Q. B. 388 ; 35 L. J. M. C. 190 ; 14 W. R. 680 672 Lancashire .1.1., 1 P.. & Aid. 289 659 , 3 1'. ^c I). 86 ; 11 A. «.V E. 144 ; 4 -Iiir. 121 . 659 TO VOLUME I. PAGE R. V. Leicester JJ., 7 B. & C. 6 382 — V. Lesley, 29 L. J. M. C. 97 ; Bell, C. C. 220 ; 8 Cox, C. C. 269 ; G Jur. N. S. 202 ; 1 L. T. 452 ; 8 W. R. 220 . . . . (i29 — V. Lewis, 8 A. & E. 881 ; 1 P. & D. 112 ; 8 L. J. M. C. 4 . . G46 — V. Lightfoot, 6 E. & B. 822 ; 25 L. J. M. C. 115 ; 2 Jur. N. S. 786; 4 W. R. 655 652 — V. Linford, 7 E. & B. 950 644 — V. Lovet, 7 T. R. 152 638 — V. Lnndie, 31 L. J. M. C. 157 ; 8 Jur. N. S. 640 ; 5 L. T. 830 ; 10 W. R. 267 646 — V. McDonald, 15 Q. B. D. 323 ; 52 L. T. 583 ; 33 W. R. 735 ; 19 J. P. 695 ; 15 Cox, C. C. 757 230 — V. Mallinsoii, 2 Burr. 679 652 — V. Manchester & Leeds R. Co., 1 P. & D. 164 ; 8 A. & E. 413 ; 3 N. & P. 439 ; 1 W. W. & H. 458 ; 7 L. J. Q. B. 192 ; 8 Id. 66 ; 2 Jur. 857 659, 669 — V. Marsh, 2 B. & C. 717 ; 2 D. & R. M. C. 182 ; 4 D. & R. 260... 651, 661 — V. Marsham, (1892) 1 Q. B. 371 ; 61 L. J. M. C. 52 ; 65 L. T. 778 ; 40 W. R. 84 ; 56 J. P. 164 644 — V. Metropolitan R. Co., 32 L. J. Q. B. 367 663 — V. Middlesex JJ., 5 B. & Ad. 1113 ; 3 N. & M. 110 ; 3 L. J. M. C. 32 662 ._. V. , 9 A. & E. 540 ; 1 P. & D. 402 . . . . 662 — V. , 2 Q. B. D. 516 ; 46 L. J. M. C. 225 ; 36 L. T. 402 ; 25 W. R. 510 661 — V. Moore, 30 L. J. M. C. 77 ; L. & C. 1 ; 8 Cox, C. C. 416 ; 7 Jur. N. S. 172 ; 9 W. R. 276 190 — V. Morrison, 28 L. J. M. C. 210; Bell, C. C. 158; 8 Cox, C. C. 194; 5 Jur. N. S. 604 ; 7 W. R. 554 193, 197 — V. Neville, 2 B. & Ad. 299 660 — V. Nunueley, E. B. & E. 852 ; 27 L. J. M. C. 260 ; 4 Jur. N. S. 1146 664, 666 — V. Padwick, 8 E. & B. 704 ; 27 L. J. M. C. 113 ; 4 Jur. N. S. 3()U; 6 W. R. 224 644 — V. Pagham Commissioners, 8 B. & C. 355 ; 2 M. & Ry. 468 . 266, 824 — V. Pain, Comb. 358 - ... 652 — V. Paty, 2 Ld. Raym. 1104 ; 2 Salk. 504 281 — V. Paynter, 7 E. & B. 328 ; 26 L. J. M. C. 102 ; 3 Jur. X. S. 51 1 ; 5 W. R. 267 ; 21 J. P. 626 644, 670 — V. Pease, 4 B. & Ad. 30 ; 2 L. J. M. C. 26 825 — V. Percy, L. R. 9 Q. B. 64 ; 43 L. J. M. C. 45 ; 22 W. R. 72 . . 644 — V. Perrott, 2 M. & S. 379 ; 15 R. R. 280 651 — V. Philliniore, 14 Q. B. D. 474, n. ; 51 L. T. 205 ; 32 W. R. 593 ; 48 J. P. 774 644 — V. Picton, 2 East, 198 654 — V. Pitt, 10 A. & E. 272 ; 2 P. & D. 385 ; 8 L. J. Q. B. 277 ; 3 Jur. 1028 243 — V. Powell, 1 Q. B. 352 ; 4 P. & D. 719 243 — V. Price, 5 Q. B. D. 300 ; 49 L. J. M. C. 49 ; 42 L. T. 439 ; 28 A\'. R. 615 ; 44 J. P. 248 656 — V. PuUen, 1 Salk. 369 650 — V. Read, 9 A. & E. 619 ; 1 P. & D. 413 ; 8 L. J. M. C. 19 . . 640 — V. Reeve, 1 W. Bl. 231 657 — V. Rennett, 2 T. R. 197 ; 8 R. R. 809, n 242 — V. Roberts, 3 Keb. 578 256 — V. Robinson, 28 L. J. M. C. 58 ; 5 Jur. N. S. 203; 8 Cox, C. C. 115; Bell, C. C. 34 ; 7 W. R. 203 431 — V. Robson, 31 L. J. M. C. 22 ; L. & C. 93 ; 9 Cox, C. C. 29 ; 8 Jur. N. S. 64 ; 5 L. T. 402 ; 10 W. R. 61 230 — V. Rochester, 7 E. & B. 910 ; 27 L. J. Q. B. 45 ; 3 Jur. X. S. 1097 644 TABLE OF CASES — V. PAGE Eudge, 16 Q. B. D. 459 ; 55 L. J. M. C. 112 ; 53 L. T. 851 ; 34 W. R. 207 ; 50 J. P. 755 . 660 Rymer, 2 Q. B. D. 136 ; 46 L. J. M. C. 108 ; 35 L. T. 774 ; 13 Cox, C. C. 378 ; 25 W. R. 415 125 Saddlers Co., 3 E. & E. 42 ; 10 H. L. C. 404 ; 30 L. J. Q. B. 186 ; 32 Id. 337 ; 33 Id. 68 ; 6 Jur. N. S. 1113 ; 7 Id. 138 ; 9 Id. 1081; 2 L. T. 503; 4 Id. 54; 9 Id. 60; 11 W. R. 1004 669 St. George's, Bloomsbury, 4 E. & B. 520 ; 3 C. L. R. 550 ; . 24 L. J. M. C. 49 ; 1 Jur. N. S. 231 ; 3 W. R. 170 . . .650 St. Gregory, 2 A. & E. 99 ; 4 N. & M. 137 ; 4 L. J. M. C. 9 . 381 St. James, Westminster, 2 A. & E. 241 ; 4 L. J. M. C. 15 . 662, 670 St. Mary, 13 East, 57, n 654 St. Nicholas, 3 A. & E. 79 ; 4 N. & M. 624 ; 4 L. J. M. C. 97 . 654 St. Olave's D. B., 8 E. & B. 529 664 Salomons, 1 T. R. 249 ; 1 R. R. 194 653 Sandon, 3 E. & B. 547 ; 23 L. J. M. C. 129 ; 18 Jiir. 401 . . 657 Scot, 3 T. R. 602 255 Scott, 33 L. J. M. C. 15 ; 4 B. & S. 368 ; 8 L. T. 662 . . 640 Searle, 2 M. & M. 75 491, 492 Sevenoaks, 7 Q. B. 136 ; 14 L. J. M. C. 92 ; 9 Jur. 489 ; 1 New Sess. Cas. 595 659 Sheffield & M. R. Co., 11 A. & E. 194 ; 3 P. e^ D. Ill ; 9 L. J. Q. B. 13 663, 668 Shevvard, 9 Q. B. D. 741 ; 5 Id. 179 : 49 L. J. Q. B. 329, 716 ; 42 L. T. 363 ; 28 W. R. 506 659 Shickle, L. R. 1 C. C. R. 158 432 Shrewsbury JJ., 9 Dowl. 501 ; 10 L. J. M. C. 8 ; 5 Jur. 291 ; llA. &E. 159 659 Simpson, 1 Str. 44 ; 10 Mod. 248 653 Slade, 21 Q. B. D. 433 ; 57 L. J. M. C. 120 ; 59 L. T. 640 ; 37 W. R. 141 431 , (1895) 2 Q. B. 247 ; 72 L. T. 568 648 Smith, 8 T. R. 588 638, 664 , L. R. 10 Q. B. 604 647 Somersetshire JJ., 1 D. & R. 443 669 , 5 B. & C. 816 ; 6 D. & R. 469 . . . 667 , 22 Q. B. D. 625 ; 58 L. J. M. C. 155 ; 60 L. T. 834 ; 37 W. R. 492 655 S. Holland Drainage Comrs., 1 P. & D. 79 ; 8 A. & E. 429 ; 8 L. J. Q. B. 64 659, 669 Spencer, 9 A. & E. 485 ; 8 L. J. M. C. 17 660 Stimpson, 4 B. & S. 301 ; 32 L. J. M. C. 208 ; 8 L. T. 536 664, 665, 666 Stoke-upon-Trent, 5 Q. B. 303 ; I). & M. 357 ; 13 L. J. M. C. 41 ; 8 Jur. 34 550 Stone, 1 East, 639 Surrey J J., L. R. 5 Q. B. 466 ; 39 L. J. M. C. 145 Svmo'uds, 1 East, 189 f heed, 2 Str. 919 Totncs Union, 7 Q. B. 690 ; 2 New Sess. Cas. 82 ; 14 L. J. 118; 9 Jur. 660 1\.tness JJ., 2 L. M. & P. 230 ; 15 Jur. 227 Treasury (Lords ot), 10 A. & E. 179 ; 2 P. & D. 369 ; 8 Q. P.. 249 ; 3 Jur. 1167 . , 10 A. I't E. 374 ; 2 P. & D. 498 TrelJc, 2 Taunt. 328 Trelawney, 1 T. R. 222 Venal.h^s, 2 Str. ()3() Walsall, 3 g. P,. D. 457 ; 38 L. T. 665 ; 26 W. R. 70 Waral'ord, 5 1^. & R. 489 .... 638, 650, 652 . 659, 668 . 654 . 638 M. C. L. j! 652 664 662 662 781 650 638 658 661 TO VOLUME I. PAGE R. V. Warwickshire JJ., 6 E. & B. 837 ; 25 L. J. M. C. 119 ; 2 Jur. N. S. 930 ; 4 W. R. 650 657, 668 — V. West Riding- Yorks. JJ., 5 T. R. 629 663, 667 — V. ^^ , 1 A. & E. 563 ; 3 N. & M. 802 ; 3 L. J. M. C. 117 657,658 — V. Wlicatman, 1 Doug]. 345 650 — V. Williams, 18 Q. B.' 393 ; 21 L. J. M. C. 150 ; 16 Jur. 1065 . 653 — V. Wilson, 5 U. & Ry. 140 ; 10 B. & C. 80 98 — V. , 1 A. & E.'627 ; 4 N. & M. 243 ; 4 L. J. M. C. 19 . . 662 — T. Wiltshire JJ., 12 A. & E. 793 ; 4 P. & D? 406 ; 10 L. J. M. C. 17; 5 Jur. 217 652,653,654 — V. Wood, 5 E. & B. 49 ; 24 L. J. M. C. 130 ; 1 Jur. N. S. 802 ; 3 W. R. 419 644, 667 — V. Woodward, 31 L. J. M. C. 91 ; L. & C. 122 ; 9 Cox, C. C. 95 ; 8 Jur. N. S. 104 ; 5 L. T. 686 ; 10 W. R. 298 . . . . 351 — V. Worcester JJ., 3 E. & B. 477 ; 23 L. J. M. C. 113 ; Id. Q. B. 259 ; 18 Jur. 424 657 Raikes v. Todd, 8 A. & E. 846 ; 1 P. & D. 138 ; 8 L. J. Q. B. 35 . 295 Raitt V. Mitchell, 4 C.inip. 146 541 Ram Coomar Coondoo's Case, 2 A pp. Cas. 186 260 Rauikissenseat r. Barker, 1 Atk. 51 ...... . 579 Ramsay v. Qilchrist, (1892) A. C. 412 ; 61 L. J. P. C. 72 ; 66 L. T. 806; 56 J. P. 711 30 V. Mar^rett, (1894) 2 Q. B. 18 ; 63 L. J. Q. B. 513 ; 70 L. T. 788 ; 1 Manson, 184 13 Randall v. Rigby, 4 M. & W. 130 ; 6 Dowl. 650 ; 1 H. & H. 231 ; 7 L. J. Ex. 240" 84, 90 Randle v. Gould, 8 E. & B. 457 ; 27 L. J. Q. B. 57 ; 4 Jur. N. S. 304 ; 6 W. R. 108 366 Rannie v. Irvine, 7 M. & Gr. 969 ; 8 Scott, N. R. 674 ; 14 L. J. C. P. 10 ; 8 Jur. 1051 403, 413 Raper v. Birkbeck, 15 East, 17 ; 13 R. R. 354 785 Raphael v. Bank of England, 17 C. B. 161 ; 25 L. J. C. P. 33 ; 4 W. R. 10 469, 470 V. Pickford, 5 M. & Gr. 551 ; 6 Scott, N. R. 478 ; 12 L. J. C. P. 176 ; 7 Jur. 815 223 Rapier v. London Tram. Co., (1893) 2 Ch. 588 ; 63 L. J. Ch. 36 ; 69 L. T. 361 ; 2 R. 448 828 Ratcliffv. Davis, YeL 178 191,193 Ratclitt'e v. Burton, 3 B. & P. 223 ; 6 R. R. 771 . . . 105, 106, 109 Rawley v. Rawley, 1 Q. B. D. 461 ; 45 L. J. Q. B. 675 ; 35 L. T. 191 ; 24 W. R. 995 622 Rawson v. Eicke, 7 A. & E. 451 ; 2 N. & P. 423 ; W. W. & D. 675 ; 7 L. J. Q. B. 17 503 Rawstron-i;. Tavlor, 11 Exch. 369; 25 L. J. Ex. 33 . . . .273 Ray V. Jones, 19 C. B. N. S. 416 ; 34 L. J. C. P. 306 ; 11 Jur. N. S. 812 ; 12 L. T. 737 ; 13 W. R. 1018 339 Raymond v. Fitch, 5 Tyr. 985 ; 1 Gale, 337 ; 2 C. M. & R. 588 ; 5 L. J. Ex. 45 73 Rayner v. Mitchell, 2 C. P. D. 357 ; 25 W. R. 633 . . . .353 Rayson v. S. London Trams., (1893) 2 Q. B. 304 ; 62 L. J. Q. B. 593 ; 69 L. T. 491 ; 42 W. R. 21 ; 4 R. 522 260 Read's Case, Cro. Eliz. 645 425 Read v. Anderson, 13 Q. B. D. 779 ; 10 Id. 100 ; 52 L. J. Q. B. 214 ; 53 Id. 532 ; 48 L. T. 74 ; 51 Id. 55 ; 31 W. R. 453 ; 32 Id. 950; 47 J. P. 311 ; 49 Id. 4 147 V. Brookman, 3 T. R. 151 750, 753 V. Burley, Cro. Eliz. 596 428 V. Edwards, 34 L. J. C. P. 31 ; 17 C. B. N. S. 245 ; 11 L. T. 311 827 V. Victoria Station & P. R. Co., 32 L. J. Ex. 167 ; 1 H. & C. 826; 9 Jur. N. S. 1061 ; 11 W. R. 1032 .663 TABLE OF OASES PAGE Keader v. Kingham, 13 C. B. N. S. 344 ; 32 L. J. C. P. 108 ; 9 Jur. N. S. 797 ; 7 L. T. 789 ; 11 W. R. 366 290 Readhead v. Mid. R. Co., L. R. 4 Q. B. 379 ; 2 Id. 412 ; 36 L. J. Q. B. 181 ; 38 Id. 169 ; 16 L. T. 485 ; 8 B. & S. 371 ; 9 Id. 519 ; 15 W. R. 831 ; 17 Id. 737 200, 220, 230 Reading v. Menliam, 1 M. & Rob. 234 191, 556 Reay v. Richardson, 2 C. M. & R. 422 ; 5 Tyr. 931 ; 1 Gale, 219 ; 4 L. J. Ex. 236 334 V. Wliite, 1 C. & M. 748 ; 3 Tyr. 596 ; 2 L. J. Ex. 229 . . 334 Rede v. Farr, 6 M. & S. 121 ." 41, 43 Reece v. Strousberg, 54 L. T. 133 ; 50 J. P. 292 504 Reed v. Blades, 5 taunt. 212 12, 13 V. Wilmot, 7 Bing. 577 14 Reedie v. L. & N. W.'R. Co. 4 Exch. 244 ; 6 Railw. Cas. 184 ; 20 L. J. Ex. 65 277 Reeve v. Palmer, 5 C. B. N. S. 84 ; 27 L. J. C. P. 327 ; 28 Id. 168 ; 4 Jur. N. S. 929 ; 5 Id. 916 ; 7 W. R. 325 . . . 199 V. Yeates, 1 H. & C. 435 ; 31 L. J. M. C. 241 ; 8 Jur. N. S. 751 ; 10 W. R. 779 648 Reeves v. Capper, 5 B. N. C. 136 ; 6 Scott, 877 ; 1 Arn. 427 ; 2 Jur. 1067 14, 195, 196 v. Hearne, 1 M. & W. 323 ; 2 Gale, 4 ; 5 L. J. Ex. 156 . . 336 V. Reeves. 9 Mod. 128 28 Regent Stores, Re, 8 Ch. D. 616 ; 38 L. T. 493 ; 26 W. R. 425 . . 433 Reicbel v. Oxford, 14 App. Cas. 259 ; 35 Ch. D. 48 ; 56 L. J. Ch. 1023 ; 59 Id. 66 ; 56 L. T. 539 ; 61 Id. 131 369 Raid V. Dickons, 3 B. & Ad. 499 ; 2 N. & M. 369 ... . 564 Reigate (Mayor ot) v. Hart, L. R. 3 Q. B. 244 ; 37 L. J. M. C. 70 ; 18 L. T. 237 ; 9 B. & S. 129 ; 16 W. R. 896 655 Reiner v. Salisbury, 2 Ch. D. 378 ; 24 W. R. 843 . . . . 603 Remmett v. Lawrence, 15 Q. B. 1004 ; 20 L. J. Q. B. 25 ; 14 Jur. 1067 23 Eenals v. Covvlishaw, 9 Ch. D. 125 ; 11 Id. 866 ; 48 L. J. Ch. 33,830 ; 41 L. T. 116 ; 28 W. R. 9 87, 88 Eendlesham v. Robarts, 23 Beav. 321 ; 28 L. J. Ch. 948 ; 5 Jur. N. S. 1031 ; 7 W. R. 563 419 Rennie v. Robinson, 7 Moore, 539 ; 1 Bing. 147 91 Renteria v. Ruding, 1 M. & M. 511 460, 461 Reuss V. Pickslev', L. R. 1 Ex. 342 ; 35 L. J. Ex. 218 ; 12 Jur. N. S. 628; 15L. T.''25; 14 W. R. 924; 4 H. &C. 588 . . . .299 Renter v. Electric Co., 6 E. & B. 341 ; 26 L. J. Q. B. 46 ; 2 Jur. N. S. 1245 ; 4 W. R. 564 350 Eevis V. Smilii, 18 C. B. 126 ; 25 L. J. C. P. 195 ; 2 Jur. N. S. 614 ; 4 W. R. 506 265 Reynolds v. Clarke, 2 Ld. Rayni. 1399 ; 1 Str. 634 . . . . 440 V. Hall, 28 L. J. Ex. 257 ; 4 H. & N. 519 . . . .788 u Pill, 19 Ves. 134 51 V. Wheeler, 10 C. B. N. S. 561 ; 30 L. J. C. P. 350 ; 7 Jur. N. S. 1290; 4 L. T. 472 151 Rhviiinc-y R. Co. v. Rhymney Iron Co., 25 Q. B. D. 146 ; 59 L. J. Q. B. 414; 63L. T. 407 ; 38 W. R. 704 203 Rich i;. Kneeland, Cro. Jac. 330 199 Richards v. Harper, L. R. 1 Ex. 199 ; 35 L. J. Ex. 130 ; 12 Jur. N. S. 770 ; 14 W. R. 643 85 V. Hiiyvvard, 2 M. & Gr. 574 ; 2 Scult, N. I!. 670 ; 10 L. J. C. P. 108 814 ',;. L. P.. k S. C. R. Co., 7 C. B. 839 ; 18 L. J. C. P. 257 ; 13 Jur. 986 201 V. liose, 9 Exch. 218 ; 2 C. L. R. 311 ; 23 L. J. Ex. 3 ; 17 .lur. 1036 272 V. West Middlesex Co., 15 (.}. B. D. 660 ; 54 L. J. (,). V,. 551 ; 33 W. R. 902 ; 49 J. P. 031 352 TO VOLUME i. PAGE Richardson v. Dunn, 8 C. B. N. S. 655 ; 30 L. J. C. P. 44 ; 2 L. T. 430 280 V. Evans, 3 Madd. 218 34 ,;. Goss, 3 15. & P. 119 ; 6 R. R. 727 727 V. Hall, 1 B. & B. 50 ; 3 Mooie, 307 .... 141 V. Horton, 7 Beav. 112 ; 5 Id. 87 ; 6 Id. 185 ; 12 L. J. Ch. 333; 13 Id. 186; 7 Jur. 1144 22 V. N. E. R. Co., L. R. 7 C. P. 75 ; 41 L. J. C. P. 60 ; 26 L. T. 131 ; 20 W. R. 461 200 V. Rowntree, (1894) A. C. 217 ; 63 L. J. Q. B. 283 ; 70 L. T. 817 ; 58 J. P. 493 ; 6 R. 95 209 Riche V. Ashbury Co., L. R. 9 Ex. 224 ; L. R. 7 H. L. 653 ; 43 L. J. Ex. 177 ; 44 Id. 185 ; 31 L. T. 339 ; 33 Id. 450 ; 23 W. R. 7 ; 24 Id. 794 350, 378, 380, 381 Riches v. Evans, 9 C. & P. 640 14 Riclunond v. Smith, 8 B. & C. 9 ; 2 M. & Ry. 235 ... . 122 Rickards v. Murdock, 10 B. & C. 527 .... 487, 490, 491, 492 Ricket V. Metropolitan R. Co., 5 B. & S. 149 ; L. R. 2 H. L. 175 ; 34 L. J. Q. B. 257 ; 3G Id. 205 ; 11 Jur. N. S. 260 ; 12 L. T. 79 ; 16 Id. 542 ; 13 W. R. 455 ; 15 Id. 937 274 Rider V. Wood, 29 L. J. M. C. 1 ; 5 Jur. N. S. 1354 ; 1 L. T. 30 ; 8 W. R. 23 672 Ridf^'way v. Wharton, 6 H. L. C. 238 ; 3 De G. M. & G. 677 ; 27 L. J. Ch. 46 ; 4 Jar. N. S. 173 ; 2 W. R. 137 ; 5 Id. 804. . . . 296 Ridler v. Ridler, 22 Ch. D. 74 ; 52 L. J. Ch. 343 ; 48 L. T. 396 ; 31 W. R. 93 ; 47 J. P. 279 26 Ridlev V. Ridley, 34 L. J. Ch. 462 ; 11 Jur. N. S. 475 ; 12 L. T. 481 ; 15 W. R. 829 304 Rigby V. Conuol, 14 Ch. D. 482 ; 49 L. J. Ch. 328 ; 42 L. T. 139 ; 28 W. R. 650 370 V. Hewitt, 5 Exch. 240 ; 19 L. J. Ex. 291 277 Riley v. Home, 5 Bing. 217 ; 2 M. & P. 331 202 Risbourg v. Bruckner, 3 C. B. N. S. 812 ; 27 L. J. C. P. 90 ; 6 W. R. 215 161 Rishton v. Wliatmore, 8 Cli. D. 467 ; 47 L. J. Ch. 629 ; 26 W. R. 827 321 Rist V. Faux, 4 B. & S. 409 ; 32 L. J. Q. B. 386 ; 10 Jur. N. S. 202 ; 8 L. T. 737 ; 11 W. R. 918 266 River Steamer Co., Re, 6 Ch. 822 ; 25 L. T. 319 ; 19 W. R. 1130.. .569, 571 Rix, Ee, 4 D. & R. 352 664 Roach V. Tliompson, 1 M. & M. 487 ; 4 C. & P. 194 . . . .149 V. Wadham, 6 East, 289 ; 2 Smith, 376 . . . . 74, 75 Robbins v. Jones, 15 C. B. N. S. 221 ; 33 L. J. C. P. 1 ; 9 L. T. 523 ; 12 W. R. 248 ; 10 Jur. N. S. 239 347 Robert v. Harnage, 6 Mod. 228 ; 2 Ld. Ravm. 1043 ; 2 Salk. 659 . 591 Roberts, Ex jx, 50 J. P. 567 . . " 659 V. Barker, 1 C. & M. 808 ; 3 Tyr. 945 ; 2 L. J. Ex. 268 . . 556 V. Crowe, L. R. 7 C. P. 629 ; 41 L. J. C. P. 198 ; 27 L. T. 238 166 V. Davev, 4 B. & Ad. 664 ; 1 N. & M. 443 ; 2 L. J. K. B. 141... 42, 43 V. Shaw, 4 B. & S. 44 ; 32 L. J. Q. B. 308 ; 10 Jur. X. S. 147 ; 8 L. T. 634 ; 11 W. R. 829 567 Robertson v. Amazon, &c. Co., 7 Q. B. D. 598 ; 51 L. J. Q. B. 68 ; 46 L. T. 146 ; 4 Asp. M. C. 496 ; 30 W. R. 308 . . . 230 V. CUirke, 1 Bing. 445 ; 8 Moore, 622 546 . V. Jackson, 2 C.^B. 412 ; 15 L. J. C. P. 28 ; 10 Jur. 98 . 547 Robins V. Gray, (1895) 2 Q. B. 78, 501 ; 73 L. T. 252 . . . .125 Robinson v. G. W. R., 35 L. J. C. P. 123 216 V. Kilvert, 41 Ch. D. 88 ; 58 L. J. Ch. 392 ; 61 L. T. 60 ; 37 \V. R. 545 161, 268 V. L. & S. W. R. Co., 19 C. B. N. S. 51 ; 34 L. J. C. P. 234 ; 11 Jur. N. S. 390 ; 12 L. T. 347 ; 13 W. E. 06i) . . 213 1'. M'Donuel, 2 B. & Aid. 134 15 V. MoUett, L. R. 7 H. L. 802 ; L. R. 5 C. P. 646 ; 7 Id. 84 ; 39 L. J. C. P. 290 ; 41 Id. 65 ; 44 Id. 362 .. . 542, 549, 557 TABLE OF CASES PAGE Robinson v. Ommannev, 23 Ch. D. 285 ; 21 Id. 780 ; 51 L. J. Cli. 894 ; 52 LI. 440 ; 47 L. T. 78 ; 49 Id. 19 ; 30 W. R. 939 ; 31 Id. 525 372 V. Walter, Poph. 127 ; 3 Bulstr. 269 ; 1 Ro. Rep. 449 . 119, 125 Rolison V. Douglas, Freem. 535 ; 3 Lev. 20 344 Rodger v. Coniptoir d'Escompte, L. R. 2 P. C. 393 ; 5 Moore, P. C. N. S. 538 ; 38 L. J. P. C. 30 ; 21 L. T. 33 ; 17 W. R. 468... 735, 736, 739 Rodt^ers v. Maw, 15 M. & W. 444 ; 4 D. & L. 66 ; 16 L. J. Ex. 137 . 158 '- V. Parkei', 18 C. B. 112 : . 132 V. Richards, (1892) 1 Q. B. 555 ; 66 L. T. 261 ; 40 W. R. 331 ; 56 J. P. 281 ; 17 Cox, C. C. 474 647 Roe V. Birkenhead R. Co., 7 Exch. 36 ; 21 L. J. Ex. 9 ; 6 Railw. Cas. 795 351 V. Galliers. 2 T. R. 133 ; 1 R. R. 445 46, 47 V. Harrison, 2 T. R. 425 ; 1 R. R. 513 34, 37, 45 V. Haylev, 12 East, 464 ; 11 R. R. 455 65 V. Lees, 2 W. Bl. 1171 533 V. Min shall, B. N. P. 96 c 39 V. Mitton, 2 Wils. 356 27 1). Rea.le, 8 T. R. 118 496 V. Sales, 1 M. & S. 297 46 V. York, 6 East, 86 ; 2 Smith, 166 ; 8 R. R. 413 . . . .786 Rogers v. Dejoncourt, 7 Ir. L. R. 482 ; 8 Id. 450 . . . .350 V. Grazebrook, 8 Q. B. 895 514 V. Hull Dock Co., 34 L. J. Ch. 165 ; 10 Jur. N. S. 1245 ; 11 L. T. 42, 463 ; 12 W. R. 1101 ; 13 Id. 217 .. . 553 V. Humphreys, 4 A. & E. 299 ; 5 N. & M. 511 ; 1 H. & W. 625 ; 5 L. J. K. B. 65 61, 505 V. Lambert (No. 1), 24 Q. B. D. 573 ; 59 L. J. Q. B. 259 ; 62 L. T. 694 ; 38 W. R. 542 ; 54 J. P. 501 . . 195 V. (No. 2), (1891) 1 Q. B. 318 ; 60 L. J. Q. B. 187 ; 64 L. T. 406 ; 39 W. R. 114 ; 55 J. P. 452 .. . 195 V. Maddocks, (1892) 3 Ch. 346 ; 62 L. J. Ch. 219 ; 67 L. T. 329 413 V. Parrey, 2 Bulst. 136 394 y. Rajendro Dutt, 13 Moo. P. C. 209 630 V. Rice, (1892) 2 Ch. 170 ; 61 L. J. Ch. 573 ; 60 L. T. 640 ; 40 W. R. 489 51 Roll a. The, 6 Rob. 364 350 RoUason v. Rollason, 34 Ch. D. 495 ; 56 L. J. Ch. 768 ; 56 L. T. 303 ; 35 W. R. 607 197 Ronneberg v. Falkland Islands Co., 34 L. J. C. P. 34 ; 17 C. B. N. S. 1 ; 10 Jur. N. S. 940 ; 10 L. T. 530 ; 12 W. R. 914 . . . 149 Roope V. D'Avigdor, 10 Q. B. D. 412 ; 48 L. T. 761 ; 47 J. P. 248 . 279 Rooth V. N. E. R. Co., L. R. 2 Ex. 173 ; 36 L. J. Ex. 83 ; 15 L. T. 624 ; 15 W. R. 695 216, 224 V. Wilson, 1 B. & Aid. 59 189 Roper V. Lendon, 1 E. & E. 825 ; 28 L. J. Q. B. 260; 5 Jur. N. S. 491; 7 W. R. 441 341 Roret V. Lewis, 5 D. & L. 371 ; 17 L. J. Ex. 99 260 Roscorla v. Thomas, 3 Q. B. 234 ; 2 C. & I). 508 ; 11 L. J. Q. B. 214; 6. Jur. 929 147 Rosevear (!<.., Kx i\, 11 Ch. D. 560 ; 48 L. J. Bkcy. 100 ; 40 L. T. 730 ; 27 W. R. 591 728, 729 Rosewanu; v. Pulling, 15 C. P.. N. S. 316 ; 33 L. J. C. P. 55 ; 10 Jur. N. S. 496 ; 9 L. T. 441 ; 12 W. R. 104 147 Boslicr V. Roslicr, 26 Ch. D. 801 ; 53 L. J. Ch. 722 ; 51 L. T. 785 ; 32 VV. U. 8:!1 417 V. Williams, 20 Eq. 210 ; 44 L. J. Ch. 419 ; 32 L. T. 387 ; 26 W. R. 561 25 Rcwling V. Muggeridgc, 16 M. & W. 181 ; 4 D. & L. 298 ; 16 L. J. Ex. 38 334 RoHS V. Fcddcn, \u R. 7 il B. 661 ; 41 L. J. Q. B. 270 ; 26 L. T. 966 824 V. Hill, 2 C. B. 877 ; 3 D. & L. 788 ; 15 L. J. C. P. 182 ; 10 Jur. 435 200 TO VOLUxME I. Boss V. ■Rimi.a-Price, 1 Ex. D. 269 ; 45 L. J. Ex. 777 ; 34 L. T. r,35 ; 24 W. E.'78{) 286 Rossiter 7). IMiller, 3 App. Gas. 1124 ; 5 Ch. D. 648; 48 L. J. Oh. 10 ; 46 Id. 228, 737 ; 39 L. T. 173 ; 37 Id. 14 ; 36 Id. 304 ; 26 W. R. 865 ; 25 Id. 870 298, 302 Rosslvn's Trusts, Re, 16 Sim. 391 ; 18 L. J. Cli. 98 ; 13 Jiir. 27 . 420 Roswell V. Prior, 12 Mod. 635 439 Rotheram Co., Re, 25 Ch. D. 103 ; 53 L. J. Ch. 290 ; 50 L. T. 219 ; 32 W. R. 131 140 Rothschild V. C;urric, 1 Q. B. 43 ; 4 P. & D. 737 ; 10 L. J. Q. B. 77 ; 5 Jur. 865 612 Rouqiiette v. OvL-nuann, L. R. 10 Q. B. 525 ; 44 L. J. Q. B. 221 ; 33 L. T. 420 606, 611, 612 Rouse V. Bradford Bank, a894) 2 Ch. 32 ; (1894) A. C. 586 ; 63 L. J. Ch. 337 ; 69 L. T. 828 ; 70 Id. 427 ; 71 Id. 522 ; 43 W. R. 78 ; 7 R. 127 334 Rousillon V. Rousillon, 14 Ch. D. 351 ; 49 L. J. Ch. 338 ; 42 L. T. 679 ; 28 W. R. 623 ; 44 J. P. 663 404, 411 Rowbotham v. Wilson, 8 H. L. C. 348 ; 6 E. & B. 593 ; 8 Id. 123 ; 25 L. J. Q. B. 362 ; 27 Id. 61 ; 30 Id. 49 ; 2 Jur. N. S. 736 ; 3 Id. 1297 ; 6 Id. 965 ; 2 L. T. 642 ; 4 W. R. 638 ; 5 Id. 820 . 89, 269 Rowcliffe V. Leigh, 6 Ch. D. 256 W. R. 783 . . . . 46 L. J. Ch. 60 ; 37 L. T. 557 Rowe V. Pickford, 8 Taunt. 83 ; 1 Moore, 526 Rowley v. Home, 3 Bing. 2 ; 10 Moore, 247 V. Rowlev, L. R. 1 H. L. Sc. 63 ; 35 L. J. Mat. 110 Royal Aciuariiun v. Parkinson, (1892) 1 Q. B. 431 ; 61 L. J. Q. B. 409 ; 66 L. T. 513 ; 40 W. R. 450 ; 56 J. P. 404 . Royal British Bank v. Turquand, 6 E. & B. 327 ; 5 Id. 248 ; 24 L. J. Q. B. 327 ; 1 Jur. N. S. 1086 ; 2 Id. 663 Ruddiman v. Smith, 60 L. T. 708 ; 37 W. R. 528 53 J. P. 518 352, Q. B. 346 . 462, 46.' P. 244 ; 10 Rudge V. Birch, 1 T. R. 622 Rudyard's Case, 2 Vent. 2 Runiball v. Metropolitan Bank, 2 Q. B. D. 194 ; 46 L. J 36 L. T. 240 ; 25 \\ . R. 366 Rumsey v. N. E. R. Co., 14 C. B. N. S. 641 ; 32 L. J. C Jur. N. S. 208 ; 8 L. T. 666 ; 11 W. R. 911 . Russel V. Langstaffe, 2 Dougl. 514 .... Russell, Exp., 19 Ch. D. 588 ; 51 L. J. Ch. 521 ; 46 L. T. 113 ; 30 W. R. 584 . V. Hammond, 1 Atk. 13 V. Shenton, 3 Q. B. 449 ; 2 G. & D. 573 ; 11 L. J. Q. B 6 Jur. 1083 ... Rustomjee v. The Queen, 2 Q. B. D. 69 ; 1 Id. 487 ; 45 L. J. (,). B. 46 Id. 238 ; 34 L. T. 278 ; 36 Id. 190 ; 24 W. R. 428 ; 25 Id Ruttinger v. Temple, 4 B. & S. 491 ; 33 L. J. Q. B. 1 ; 9 Jur. 1239 ; 9 L. T. 256 ; 12 W. R. 9 Rvall V. Rolle, 1 Atk. 165 ; 1 Ves. Sen. 348 .. . Ryan v. Shilcock, 7 Exch. 72 ; 21 L. J. Ex. 55 ; 15 Jur. 1200 Rylands v. Fletcher. See Fletcher v. Rylands. 289 249 338 N. S 559 727 205 377 266 380 824 770 375 ), 466 200 703 21 20 826 625 145 195 108 S. Sadler v. Nixon, 5 B. & Ad. 936 ; 3 N. & M. 258 ; 3 L. J. K. B. 101 153 St. Cloud, The, Brown & Lush. 4 ; 8 L. T. 54 739 St. Cross V. De Walden, 6 T. R. 338 552, 553 St. James, Westminster (Governors of) r. Battersea Overseers, 6 Jur. N. S 100 ; 6 C. B. X. S. 878 ; 29 L. J. M. C. 26 . . . . 671 TABLE OF CASES PAGE St. Pancras v. Batterburv, 2 C. B. N. S. 477 ; 26 L. J. C. P. 243 ; 3 Jur. N. S. 1106 . ' 285 Sainter v. Ferguson, 7 C. B. 716 ; 18 L. J. C. P. 217 ; 13 Jur. 828 . 407 Sale V. Laml)eit, 18 Eq. 1 ; 43 L. J. Ch. 470 ; 22 W. R. 478 . . 298 Salomons v. Nipsen, 2 T. R. 674 703 Salvin v. N. Brancepeth Co., 9 Cli. 705 ; 44 L. J. Ch. 149 ; 31 L. T. 154 ; 22 W. R. 904 268 Sampson v. Easterliv. See Easterhy v. Bamjison .... 66 V. Hoddinott, 1 C. B. N. S. 590 ; 26 L. J. C. P. 148 ; 3 Jur. N. S. 243 ; 5 W. R. 230 . 273 Sandgate L. B. v. Pledge, 14 Q. B. D. 730 ; 52 L. T. 546 ; 33 W. R. 565 ; 49 J. P. 342, 670 672 Sandon v. Jervis, E. B. & E. 935, 942 ; 28 L. J. Ex. 156 ; 5 Jur. N. S. 860 ; 7 W. R. 290 106, 108, 109 Sandy.'^ v. Hodgson, 10 A. & E. 472 ; 2 P. & D. 435 ; 9 L. J. Q. B. 31 431 Santler v. Heard, 2 W. Bl. 1031 600 Santos V. lUidge, 6 C. B. N. S. 841 ; 8 Id. 861 ; 28 L. J. C. P. 317 ; 29 Id. 348 ; 5 Jur. N. S. 1358 ; 6 Id. 1348 ; 3 L. T. 155 ; 8 W. R. 705 605 Sapslbrd I'. Fletcher, 4 T. R. 511 157,162,16a Sargent v. Morris, 3 B. & Aid. 277 221 Sari V. Bourdilloii, 26 L. J. C. P. 78 ; 1 C. B. N. S. 188 ; 2 Jur. N. S. 1208 ; 5 W. R. 196 320 Saundei's v. Merryweather, 3 H. & C. 902 ; 35 L. J. Ex. 115 ; 11 Jur. N. S. 655 ; 13 W. R. 814 512 V. Waketield, 4 B. & Aid. 595 291, 318 V. Wharton, 32 L. J. Ch. 224 ; 4 Giff. 179 ; 9 Cox, C. C. 279 ; 9 Jur. N. S. 570 ; 7 L. T. 704 18 Saunderson v. Jackson, 2 B. & P. 238 ; 5 R. R. 580 . . . . 320 Savignac v. Cuff, 2 T. R. 66, cited .... 677, 686, 700, 703 Savile v. Roberts, 1 Ld. Ravni. 374 ; 3 Id. 264 ; Rayni. Ent. 374, 396 ; 5 Mod. 394, 405 ; 12 Id.''208 ; 1 Salk. 13 ; 3 Id. 16 ; Carth. 416 ; Holt, 8, 150, 193 ; 2 Yin. 25, pi. 42 260 Saxon Life Ass. Co., Re, 32 L. J. Ch. 206 ; 30 Id. 137 ; 7 L. T. 22, 404 ; 2 J. & H. 408 ; 10 W. R. 724 ; 11 Id. 59 . . . .380 Say & Seale r. Stephens, Cro. Car. 135 239 Savers v. Collyer, 24 Ch. D. 180 ; 28 Id. 103 ; 58 L. J. Ch. 1 ; 51 L.T. 723 ; 32 W. R. 200 ; 33 Id. 91 88 Scaile v. Farrant, L. R. 10 Ex. 358 ; 44 L. J. Ex. 36, 234 ; 32 L. T. 563 ; 33 Id. 278 ; 23 W. R. 469, 840 ... 199, 208 t'. Tohin, 3 B. & Ad. 523 ; 1 L. J. K. B. 183 . . . .461 Scaltock V. Harston, 1 C. P. D. 106 ; 45 L.J. C. P. 125 ; 34 L. T. 130; 24 W. R. 431 50 Scarfe v. Morgan, 4 M. & W. 270 ; 1 H. & H. 292 ; 7 L. J. Ex. 324 ; 2 Jur. 569 ' 374 Scattergood v. Sylvester, 15 Q. B. 506 ; 19 L. J. Q. B. 447 ; 14 Jur. 977 . . ' 473 Schibsljy v. Weslenholz, L. R. 6 Q. B. 155; 40 L. J. Q. B. 73 ; 24 L.T. 93 ; 19 W. R. 587 608 Schlenckcr v. IMoxsy, 3 B. & C. 789 ; 5 D. & R. 747 . . . . 158 Srhmidt u. 11. :\Iail Co., 45 L. J. Q. B. 646 218 Sclioley 7-. AN'alton, 12 M. & W. 510 ; 13 L. J. Ex. 122 ; 8 Jur. 319 567 Schollield r. Londesborough, (1895) 1 Q. B. 536 ; (1894) 2 Q. B. 660 ; 63 Jj. J. (.). V,. 649 ; 64 Id. 293 ; 71 L. T. 86 ; 72 Id. 46 ; 43 W. R. 331 ; 10 11.376; 14 Id 281,780, 783,784 Schotsnians v. L. tt Y. R. ( 'o., 2 Ch. 332 ; 1 E<[. 349 ; 35 L. J. Ch. 100; 36 id. 361 ; 13 L. T. 733 ; 16 Id. 189 ; 14 W. R. 270 ; 15 Id. 537 722, 729 Sclireiber ?;. Dinlsel, 54 L. T. 911 27 Schuster v. McKclhir, 7 E. & B. 704 ; 26 L. J. Q. B. 281 ; 3 Jur. N. S. J320 ; 5 W. U. 657. ... . . 555,729,733,736 TO VOLUME I. PAGE Schuster v. Wlieelriglit, 8 C. B. N. S. 383 ; 29 L. J. C. P. 222 ; GJur. N. S. 944 601 Scliwan, The, (1892) P. 419 ; 09 L. T. 34 219 Scobie V. Collins, (189.")) 1 Q. B. 375 ; 64 L. J. Q. B. 10 ; 71 L. T. 775 519 Scottv. Avery, 5 H. L. C. 811 ; 8 Exch. 487 ; 25 L.J. Ex. 308 ; 22 Id. 157, 287 ; 17 Jur. 810 ; 2 Jur. N. S. 815 ; 4 W. R. 746 . 340 V. Bell, 2 Lev. 70 27 V. Brown, 51 L. T. 747 134 V. , (1892) 2 Q. B. 724 ; 61 L. J. Q. B. 738 ; 67 L. T. 782 ; 41 W. R. 116 ; 57 J. P. 213 ; 4 R. 42 . . . 364, 368, 387 i;. Buckley, 16 L. T. 573 108 V. Irving, 1 B. & Ad. 605 549 .V. Liverpool, 3 De G. & J. 334 ; 27 L. J. Ch. 641 ; 28 Id. 230 ; 4 Jur. N. S. 402 ; 5 Id. 105 ; 7 W. R. 153 . . . . 341 V. London Dock Co., 3 H. & C. 596 ; 34 L. J. Ex. 17, 220 ; 11 Jur. N. S. 204 ; 13 W. R. 410 ; 13 L. T. 148 . . 798, 810 V. Mercantile Ins. Co., 66 L. T. 811 341 V. Pettit, 3 B. & P. 469 ; 7 R. R. 804 727 ('. Sevniour, 1 H. & C. 219 ; 31 L. J. Ex. 457 ; 8 Jur. N. S. 568; 6 L. T. 607 ; 10 W. R. 739 6()7, 620 V. Shepherd, 2 W. Bl. 892 ; 3 Wils. 403 . . . . 266, 438 V. Stanstield, L. R. 3 Ex. 220 ; 37 L. J. Ex. 155 ; 18 L. T. 572 ; 16W. R.'911 265,284,631 Scottish N. E. R. Co. v. Stewart, 3 Macq. 382 ; 5 Jur. N. S. 607 ; 7 W. R. 458 366 Scrutton v. Childs, 36 L. T. 212 554 Seaborne v. Maddy, 9 C. & P. 497 144 Seamen v. Netlierclilt, 1 C. P. D. 540 ; 46 L. J. C. P. 128 ; 35 L. T. 784; 25 W. R. 159 265 Sear v. House Soc, 16 Ch. D. 387 ; 50 L. J. Ch. 77 ; 43 L. T. 531 ; 29 W. R. 192 ; 45 J. P. 204 48 Searle v. Laverick, L. R. 9 Q. B. 122 ; 43 L. J. Q. B. 43 ; 30 L. T. 89; 22 W. R. 367 199 Searles v. Scarlett, (1892) 2 Q. B. 56 ; 61 L. J. Q. B. 573 ; 66 L. T. 837 ; 40 W. R. 696 ; 56 J. P. 789 264 Seath V. Moore, 1 1 App. Cas. 350 ; 55 L. J. P. C. 54 ; 54 L. T. 690 ; 5 Asp. M. C. 586 148 Seaton v. Deerhurst, (1895) 1 Q. B. 853 ; 64 L. J. Q. B. 430 ; 72 L. T. 453 ; 43 W. R. 436 335 Sedgwick v. Daniell, 2 H. & N. 319 ; 27 L. J. Ex. 116 .. . 153 Seei-s v. Hind, 1 Ves. 294 47 Sellin V. Price, L. R. 2 Ex. 189 ; 36 L. J. Ex. 93 ; 16 L. T. 21 ; 15 W. R. 749 784 Semayne's Case, 5 Co. Rep. 91 99 Semple v. Pink, 1 Exch. 74 ; 16 L. J. Ex. 237 295 Senior v. Arniitage, Holt, N. P. 197 536 V. Butt, 1 Tyr. 283, cited 301 Seton v. Slade, 7 Ves. 265; 6 R. R. 124 315 Sewell V. Burdick, see Burdick v. Sewell .... 193, 684, 702 Seymour v. Bridge, 14 Q. B. D. 460 ; 54 L. J. Q. B. 347 . . . 554 V. Greenwood, 6 H. & N. 359 ; 7 Id. 355 ; 30 L. J. Ex. 189, 327 ; 4 L. T. 835 ; 9 W. R. 518, 785 342, 351 Shackell v. Chorlton, (1895) 1 Ch. 378 ; 64 L. J. Ch. 353 ; 72 L. T. ■ 188 ; 43 W. R. 394 433 ('. Rosier, 2 B. N. C. 634 ; 3 Scott, 59 ; 5 L. J. C. P. 193.. .156, 372 V. West, 2 E. & E. 326 ; 29 L. J. M. C. 45 ; 1 L. T. 28 : 6 Jur. N. S. 95 ; 8 W. R. 22 197, 671 Shadwell v. Shadwell, 9 C. B. N. S. 159 ; 30 L. J. C. P. 145 ; 7 Jur. N. S. 311 ; 3 L. T. 628 ; 9 W. R. 163 139, 267 Shardlow r. Cotterell, 20 Ch. D. 90 ; 51 L. J. Ch. 353 ; 45 L. T. 572; 30 W. R. 143 297, 298 TABLE OF CASES Sliaiman r. Bran.lt, L. R. 6 Q. B. 720 ; 40 L. J. Q. B. 312 ; 19 W. R. 936 Sharp V. Grey, 9 Bing. 457 ; 2 M. & Scott, 620 ; 2 L. J. C. P. 45 V. Waterhousej 7 E. «& B. 816 ; 27 L. J. Q. B. 70 ; 3 Jur. N. S. 1022 27 L. T. 699 ; 29 Id. 9 . Exch. 580 ; 7 D. & L. 213 ; 14 Jur. Sharpe v. San Paulo, 8 Ch. 597 ; Sharrod v. L. & X. W. R. Co., 4 23 ; 6 Railw. Cas. 239 . Shattack v. Garden, 6 Exch. 725 ; Simw V. Benson, 11 Q. B. D. 563 V. Bran, 1 Stark. 319 V. G. W. R. Co., (1894) 1 Q. B. 373 ; 285 ; 58 J. P. 318 ; 10 R. 85 . V. Y. & N. Mid. R. Co., 13 Q. B. 347 ; Jur. 385 ; 6 Railw. Cas. 87 V. Woodcock, 7 B. & C. 73 ; 9 D. & R Shears v. Ro^rers, 3 B. & Ad. 363 ... Shedden v. Patrick, 1 Macq. 535 ; 1 Paterson, 332 Sheers v. Brooks, 2 H. Bl. 120 ; 3 R. R. 357 Sheffield v. London J. S. Bank, 13 App. Cas. 333 ; 2 L. M. & P. 466 ; 21 L. J. Ex. 200 52 L. J. Q. B. 575 ; 49 L. T. 651 . 70 L. T. 18 L. J. 839 218 Q. B. PAGE 322 200 72 341 445 23 370 . 18 42 W. R. 207, 209, 210 181 ; 13 208, 210, 212 . 301 . 11, 20, 22 . 669 . 107 34 Ch. Id. 986 ; 55 L. T. 678 : 58 Id. 735 D. 95 ; 56 35 W. R. L. J. Ch. 569 ; / 220 ; 37 Id. 33 Shelling v. Farmer, 1 Str. 646 Shelton v. Sjirin-^a'tt, 11 C. B. 452 Shenstone v. Hilton, (1894) 2 Q. B. 452 ; 63 L. J. Q. B. 584 ; 71 L. T. 339 ; 10 R. 390 . Shepherd v. Berger, (1891) 1 Q. B. 597 ; 60 L. J. Q. B. 395 ; 64 L. T. 435 ; 39 W. R. 330 ; 55 J. P. 532 V. Bristol & E. R. Co., L. R. 3 Ex. 189 ; 37 L. J. Ex. 113 ; 18 L. T. 528 ; 16 W. R. 982 V. Harrison, L. R. 5 H. L. 116 ; L. R. 4 Q. B. 196, 493 ; 38 L. J. Q. B. 105, 177 ; 40 Id. 148 ; 20 L. T. 24 ; 24 Id. 857 ; 17 W. R. 609, 770 ; 20 Id. 1 V. Hills, 11 Exch. 55 ; 25 L. J. Ex. 6 Sheppard v. Gilmore, 57 li. J. Ch. 6 ; 57 L. T. 614 .... V. Gosnold, Vauyh. 159 V. Hong Kong Bank, 20 W. R. 459 V. Union Bank, 7 H. & N. 661 ; 31 L. J. Ex. 154 ; 8 Jur. S. 264 ; 5 L. T. 757 ; 10 W. R. 299 472 594 145 746 45 224 729 285 88 255 48 744 N. Sheridan v. New Quay Co., 4 C. B. N. S. 618 ; 28 L. J. C. P. 58 ; 5 Jur. N.S. 248 195,733,737 1, M. c;. W. R. Co., 24 L. R. Ir. 146 .... 217,218 Shiells V. Blackljurne, 1 H. Bl. 159 ; 2 R. R. 750 . . 184, 185, 227 Shillil)eer v. Glyn, 2 M. & W. 143 ; 2 Gale, 212 ; 6 L. Shillito V. Hohson, 30 Ch. D. 396 ; 55 L. J. Ch. 741 : 34 W. R. 286 Sliipley V. Kymer, 1 M. & S. 484 Shipton V. Casson, 5 B. & C. 378 . . . . Shorland v. Govett, 5 B. & C. 485 ; 8 D. & R. 257 . Short V. Kallowav, 11 A. & E. 28 V. Simpson", L. R. 1 C. P. 248 ; 1 H. & R. 181 ; J. Ex. 53 L. (46 35 147 ; 12 Jur. N. S. 258 ; 13 L. T. 674 ; 14 W. R. 307 Shortrede v. Cheek, 1 A. & E. 57 ; 3 N. & M. 866 Shower v. Pilck, 4 Exch. 478 ; 19 L. J. Ex. 113 . Shrew.sliurv'.s (Countess of) Case, 5 Co. Hep. 13 1) ; Shrnder '!J.'Mver.s, 34 W. R. 261 . Sliurmur v. Sedgwi.k, 24 C!li. I). 597 ; 53 L. J. Ch 31 \V. R. 884 Sibrce V. 'fripp, 15 M. & W. 23 ; 15 L. J. Ex Siddons V. Slinrt,, 2 C. P. 1). 572 ; 46 L. J. C. Sidehothani v. Holland, (1895) 1 (,). ]'.. 378 ; L. T. 62 ; 43 W. R. 228 . 3L Cn 87 318 P. 795 ; 64 L. J, 182 194 741 334 133 149 L. J. C. P 739, 740 J. K. B. 1 25 293 . 148 Eliz. 777, 784 170 . 601 49 L. T. ] 56 ; 26, 27 325, 326, 331, 332 37 L. T. 230 . 272 (.,). B. 200 ; 72 . 305 TO VOLUME I. PAGE Si.lw.'ll V. ]\rasoii, 2 n. & N. 30G ; 2G L. J. Ex. 407 ; 3 Jur. X. S. G49 ; 5 W. Iv. 72!J 570 Sievewright v. Aiclul)aia, 17 Q. U. 103 ; 20 L. J. Q. B. 529 ; 15 Jur. 947 302 Sitt'ken v. Wrav, 6 East, 371 ; 2 Smith, 480 724 Siij-ers v. Evans, 5 E. & B. 367 ; 24 L. J. Q. B. 305 ; 1 Jur. N. S. 851 17 Sii^ourney v. Lloyd, 8 B. & C. G22 ; 5 l^ing. 525 ; 3 M. & By. 58 ; 3 M. & P. 229 ; 3 Y. & J. 220 . . 457 Sills V. Brown, 9 C. & P. GOl 492 Simmoncls r. HnniLle, 13 C. B. N. S. 258 ; 9 L. T. 168 . . .319 Simon v. Metivier, 1 W. Bl. 599 321 Simons v. G. W. R. Co., 18 C. B. 805 ; 26 L. J. C. P. 25 ; 2 C. B. X. S. 620 213,214,216,217,223 Simpkin Simeon's Case, 3 Bulstr. 165 ; Hob. 47 ; 1 Roll. Rep. 81 ; Cro. Eliz. 436 57 Simpson V. Bloss, 7 Taunt. 246 ; 2 Marsh. 542 387 . V. Clavton, 4 B. X. C. 758 ; 6 Scott, 469 ; 1 Arn. 299 ; 8 L. J. d P. 59 ; 2 Jur. 892 60, 65 V. E^gington, 10 Exch. 845 ; 24 L. J. Ex. 312 . . .338 V. Fogo, 1 H. & M. 195 ; IJ. & H. 18 ; 32 L. J. Ch. 249 ; 9 Jur. X. S. 403 ; 8 L. T. 61 ; 11 W. R. 418 . . . 608 v. Hartopp, Willes, 512 421 Sims V. Landrav, (1894) 2 Ch. 318 ; 63 L. J. Ch. 535 ; 70 L. T. 530 ; 42 W. R". 621 ; 8 R. 582 299, 321 V. Thomas, 12 A. & E. 536 ; 4 P. & D. 233 ; 9 L. J. Q. B. 399 ; 4 Jur. 1181 23 Singer Co. v. Clark, 5 Ex. D. 37 ; 49 L. J. Ex. 224 ; 41 L. T. 591 ; 28 W. R. 170 ; 44 J. P. 59 197, 200 Singleton v. E. Counties R. Co., 7 C. B. X. S. 287 . . . . 275 V. Williamson, 7 H. & X. 747 ; 31 L. J. Ex. 287 ; 8 Jur. X. S. 60, 157 ; 5 L. T. 644 ; 10 W. R. 174, 301 . . 130, 131, 827 Sirdar Gurdyal Singh v. Faiidkote (Rajah of), (1894) A. C. 670 ; 11 R 607, 608 Six Carpenters' Case, 8 Co. Rep. 146 a 127 Skaile v. Jackson, 3 B. & C. 421 ; 3 D. & R. 290 .... 328 Skarf V. Soulbv, ] Mac. & G. 364 ; 1 Hall & T. 426 ; 18 L. J. Ch. 8 ; 19 Id. 30 ; iG Sim. 344; 13 Jur. 1109 20 Skeate v. Beale, 11 A. & E. 983 ; 3 P. & D. 597 ; 9 L. J. Q. B. 233 ; 4 Jur. 766 141 Skeet V. Lindsay, 2 Ex. D. 314 ; 46 L. J. Ex. 249 ; 36 L. T. 98 ; 25 AV. R. 322 " 570 Skelton v. L. & N. W. R. Co., L. R. 2 C. P. 631 ; 36 L. J. C. P. 249 ; 16 L. T. 563 ; 15 W. R. 925 182 Skinner v. Gunton, 1 Wms. Saund. 228 b 260 Skinners Co. v. Knight, (1891) 2 Q. B. 542 ; 60 L. J. Q. B. 629 ; 65 L. T. 240 ; 40 W.^R. 57 50 Slater v. Baker, 2 Wils. 359 439, 442 . V. Jones, L. R. 8 Ex. 186 ; 42 L. J. Ex. 122 ; 29 L. T. 56 ; 21 W. R. 815 335, 340 Slattery v. Dul)lin-Wicklow R. Co., 3 App. Cas. 1155 ; 39 L. T. 365 ; 27 W. R. 191 276 Sleap V. Xewnian, 12 C. B. X. S. 116 ; 6 L. T. 386 . . . 47, 56 Sleath V. Wilson, 9 C. & P. 607 353 Slim V. G. X. R. Co., 14 C. B. 647 ; 2 C. L. R. 864 ; 23 L. J. C. l\ 166 ; 18 Jur. 1119 200 Slipper V. Tottenham R. Co., 4 Eq. 112 ; 36 L. J. Ch. 841 ; 16 L. T. 446 ; 15 W. R. 861 47 Slubey v. Hevward, 2 H. Bl. 504 ; 3 R. R. 486 730 Small V. Moates, 9 Bing. 574 ; 2 M. & Scott, 674 ... . 733 Smartle r. Williams, '3 Lev. 387; 1 Salk. 245, 280; Holt, 478; Comb. 247 28, 504, 525 S.L.C. — VOL. I. (J TABLE OF CASES PAGE Smith V. Arnold, 3 Salk. 4 67 V. Baker, (1891) A. C. 325 ; 60 L. J. Q. B. 683 ; 65 L. T. 467 ; 40 W. E. 392 277 V. Bickmore, 4 Taunt. 474 386 V. Bromlev, 2 Doucjl. 695, n. ; B. N. P. 133 . . . .385 V. Cherrili, 4 Eq. "^390 ; 36 L. J. Ch. 738 ; 16 L. T. 517 ; 15 W. R. 919 29 V. Clegcr, 27 L. J. Ex. 30O 554 V. Conipton, 3 B. & Ad. 407 ; 1 L. J. K. B. 146 . . 149, 150 V. Cook, 1 Q. B. D. 79 ; 45 L. J. Q. B. 122 ; 33 L. T. 722 ; 24 W. R. 206 198 V. Crawshaw, Cro. Car. 15 ; Sir W. Jones, 93 . . . . 256 V. Cufi; 6 M. & S. 160 385 V. Dearlove, 6 C. B. 132 ; 17 L. J. C. P. 219 ; 12 Jur. 377... 124, 125 V. Dobson, 3 M. & Gr. 59 ; 3 Scott, N. R. 336 . . . . 276 V. Eggington, 7 A. & E. 167 ; 6 Dowl. 38 ; 2 N. & P. 143 ; 6 L. J. K. B. 206 ; 1 Jur. 607 . . . . 132 . V. , L. R. 9 C. P. 145 ; 43 L. J. C. P. 140 ; 30 L. T. 521 60 V. Garland, 2 Mer. 123 25 V. Goodwin, 4 B. & Ad. 413 ; 1 N. & M. 371 ; 2 L. J. K. B. 192 130 V. Gordon, C. & E. 105 337 V. Goss, 1 Camp. 282 727, 733 V. Gronovv, (1891) 2 Q. B. 394 ; 60 L. J. Q. B. 776 ; 65 L. T. 117; 40 W. R. 46 47 V. Home. 2 Moo. 18 ; 8 Taunt. 144 ; Holt, N. P. 643 . . 205 ■ V. Kenrick, 7 C. B. 515 ; 13 Jur. 362 ; 18 L. J. C. P. 172 ... 794, 799, 812, 814, 815, 818, 820, 821, 822 V. Lindo, 4 C. B. N. S. 395 ; 5 Id. 587 ; 27 L. J. C. P. 196 ; 4 Jur. N. S. 484 ; 6 W. R. 552, 748 . . . . 147, 374 V. L. & S. W. R. Co., L. R. 6 C. P. 14 ; 40 L. J. C. P. 21 ; 23 L. T. 678 ; 19 W. R. 230 . 825 V. Mawliood, 14 M. & W. 452 ; 15 L. J. Ex. 149 .. . 374 V. Mouteith, 13 M. & W. 427 ; 2 D. & L. 358 ; 14 L. J. Ex. 22 ; 9 Jur. 310 332 V. Neale, 2 C. B. N. S. 67 ; 26 L. J. C. P. 143 ; 3 Jur. N. S. 516 297, 299 V. N. Metropolitan Trams, 55 J. P. 630 352 V. Pocklington, 1 Tyr. 309 ; 1 C. & J. 445 . . . .512 V. Reynolds, 66 L. t. 808 147, 546, 548 V. Roche, 6 C. B. N. S. 223 ; 28 L. J. C. P. 237 ; 5 Jur. N. S. 918 ; 7 W. R. 413 145 V. Sinionds, Comb. 64 68 V. Sydney, L. R. 5 Q. B. 203 ; 39 L. J. Q. B. 144 ; 22 L. T. 16 ; 18 W. R. 628 261 V. Thackerah, L. R. 1 C. P. 564 ; 35 L. J. C. P. 276 ; 12 Jur. N. S. 545 ; 14 L. T. 761 ; 14 W. R. 832 . . . 270, 271 V. Trnwsdale, 3 E. & B. 83 ; 2 C. L. R. 874 ; 23 L. J. (,). B. 107 ; 18 Jur. 552 341 V. Union Bank, 1 Q. B. D. 31 ; L. R. 10 Q. B. 291 ; 44 L. J. Q. B. 117; 45 Id. 149 ; 32 L. T. 456 ; 33 Id. 557 ; 23 W. R. 652 ; 24 Id. 194 458 V. Walton, 8 liing. 235 ; 1 M. & Scott, 380 ; 1 L. J. C. P. 85 . 553 V. Wiitson, Jiunb. 55 300 .- V. Webster, 3 Ch. D. 49 ; 45 L. J. Ch. 528 ; 35 L. T. 44 ; 24 W. [I. 891 322 V. Wcgii.-iin, 8 K. 43 ; 18 Jur. 510 ; 2 W. R. 57 225 Taitc V. Gosling, 11 (^h. \). 273 ; 48 L. J. Ch. 397 ; 40 L. T. 251 ; 27 W. |{. 394 50, 75 Tallcy /■. G. W. R. Co., L. R. 6 (!. P. 44 ; 40 L. J. C. P. 9 ; 23 L. T. 413 ; 19 W. R. 151 200, 201 Tallis V. Tallis, 1 E. & J'.. 391 ; 22 L. J. (). B. 185 ; 17 Jur. 1149 . 409 TO VOLUME I. PAOE Tamvaco v. Timothy, C. & E. 1 200 Tancred v. Allgood, 4 H. & N. 438 ; 28 L. J. Ex. 362 ... 89 Tanner v. Scovell, 14 M. & W. 28 ; 14 L. J. Ex. 321 . . . 730, 731 V. Smart, G B. & C. 603 ; 9 D. & R. 549 . . . . 563, 564 Tajipenden v. Randall, 2 B. & P. 467 ; 5 R. R. 682 . . . . 388 Tar back v. Marburv, 2 Vein. 510 ; Eq. Cas. Abr. 148, pi. 3 . 20, 25 Tarletou v. Liddelf, 17 Q. B. 390 ; 4 De G. & S. 538 ; 20 L. J. Q. B. 507 ; 15 Jur. 1170 30 Tarn v. Turner, 39 Ch. D. 456 ; 57 L. J. Ch. 452 ; 58 L. T. 558 ; 37 W. R. 276 509 Tarry v. Ashton, 1 Q. B. D. 314 ; 45 L. J. Q. B. 260 ; 34 L. T. 97 ; 24 W. R. 581 830 Tatam v. Haslar, 23 Q. B. D. 345 ; 58 L. J. Q. B. 432 ; 38 W. R. 109 472 Tatem v. Chaplin, 2 H. Bl. 133 ; 3 R. R. 360 65 Tatlock V. Harris, 3 T. R. 174 144, 753, 756, 773 Tattan v. G. W. R. Co., 2 E. & E. 844 ; 29 L. J. Q. B. 184 ; 6 Jnr. N. S. 800 ; 2 L. T. 596 ; 8 W. R. 606 223 Taunton v. Costar, 7 T. R. 431 ; 4 R. R. 481 133 Tayler v. Baker, 5 Mod. 136 326 Taylor v. Best, 14 C. B. 487 ; 23 L. J. C. P. 89 ; IS Jur. 402 ; 2 W. R. 259 630, 631 V. :^owers, 1 Q. B. D. 291 ; 45 L. J. Q. B. 163 ; 34 L. T. 263 ; 24 W. R. 499 387, 388 . V. Caldwell, 3 B. & S. 826 ; 32 L. J. Q. B. 164 ; 8 L. T. 356 ; 11 W. R. 726 169 V. Chester, L. R. 4 Q. B. 309 ; 10 B. & S. 237 ; 38 L. J. Q. B. 225 ; 21 L. T. 359 387 V. Clemson, 2 Q. B. 978 ; 2 G. & D. 346 ; 11 L. J. Ex. 447 . 650 V. Ccenen, 1 Ch. D. 636 ; 34 L. T. 18 23 V. Cole, 3 T. R. 292 ; 7 Id. 3, n. ; 1 H. Bl. 535 ; 1 R. R. 706 . 133 V. Crowland Gas Co., 10 Exch. 293 ; 2 C. L. R. 1247 ; 23 L. J. Ex. 233 ; 18 Jur. 913 ; 2 W. R. 563 374 V. Hawkins, 16 Q. B. 308 ; 20 L. J. Q. B. 313 ; 15 Jur. 746 . 263 V. Kymer, 3 B. & Ad. 320 ; 1 L. J. K. B. 114 . . . . 744 V. M. S. & L. R. Co., (1895) 1 Q. B. 134 ; 64 L. J. Q. B. 6 ; 71 L. T. 596 ; 43 W. R. 120 202, 223 V. Moseley, 6 C. & P. 273 782 ?;. Needham, 2 Taunt. 278; 11 R. R. 572 .... 96 V. Oram, 31 L. J. M. C. 252 ; 1 H. & C. 370 ; 8 Jur. N. S. 748 ; 7 L. T. 68 ; 10 W. R. 800 670 V. Plumer, 3 M. & S. 562 ; 2 Rose, 457 ; 16 R. R. 361 . . 452 V. Shum, 1 B. & P. 21 ; 4 R. R. 759 70 V. Smith, (1893) 2 Q. B. 65 ; 61 L. J. Q. B. 331 ; 67 L. T. 39 ; 40 W. R. 486 297 . V. Stray, 2 C. B. N. S. 175 ; 26 L. J. C. P. 185, 287 ; 3 Jur. N. S. 540, 964 ; 5 W. R. 528, 761 . . . . 147, 550 • V. Waters, 5 M. & S. 103 113 . V. Zamira, 6 Taunt. 524 156, 158, 161, 162 Teal V. Auty, 2 B. & B. 99 ; 4 Moore, 542 308 Teasdale v. Braithwaite, 5 Ch. D. 630 ; 4 Id. 85 ; 46 L. J. Ch. 396, 725 ; 35 L. T. 590 ; 36 Id. 601 ; 25 AV. R. 222 .... 27 Temperton v. Russell, (1893) 1 Q. B. 715 ; 62 L. J. Q. B. 412 ; 69 L. T. 78 ; 41 W. R. 565 ; 57 J. P. 518, 676 ; 4 R. 376 . . . . 281 Tenant v. Elliott, 1 B. & P. 3 ; 4 R. R. 755 386 V. Goldwin, 2 Ld. Raym. 1089 ; 1 Salk. 21, 360; 6 Mod. 311 ; Holt, 500 .... 793, 799, 801, 804, 806, 809, 812, 815, 816 Tennant v. Cumberland, 1 E. & E. 401 ; 5 Jur. N. S. 763 ; 7 W. R. 161 651 V. Field, 8 E. & B. 337 ; 27 L. J. Q. B. 33 ; 3 Jur. N. S. 1178 ; 6W. R. 11 130 Terry v. Hutchinson, L. R. 3 Q. B. 599 ; 9 B. & S. 487 ; 37 L. J. Q. B. 257 ; 18 L. T. 521 ; 16 W. R. 932 267 TABLE OF CASES PAGT3 Thactrah v. Fergnsson, 25 W. R. 307 741, 744 Thames Haven Co. v. Rose, 4 M. & Gr. 552 ; 5 Scott, N. R. 524 ; 2 Dowl. N. S. 104 ; 12 L. J. C. P. 90 382 Thames Ironworks Co. v. Patent Derrick Co., 1 J. & H. 93 ; 29 L. J. Ch. 714 ; 6 Jur. N. S. 1013 ; 2 L. T. 208 ; 8 W. R. 408 . . . 192 Theideman v. Gohlschmidt, 1 De G. F. & J. 4 ; 1 Giff. 142 ; 5 Jur. X. S. 855 ; 1 L. T. 50 ; 7 W. R. 627 ; 8 Id. 14 . . . . 457 Thellusson v. Woodford, 4 Ves. 227 ; 11 Ves. 112 ; 1 B. & P. (N. R.) 357 ; 4 R. R. 205 ; 8 R. R. 205 419 Thin V. Richards, (1892) 2 Q. B. 141 ; 62 L. J. Q. B. 39 ; 66 L. T. 584 ; 40 W. R. 617 220 Thomas, Re, (1894) 1 Q. B. 747 ; 63 L. J. Q. B. 572 ; 70 L. T. 567 . 371 V. Brown, 1 Q. B. D. 714 ; 45 L. J. Q. B. 811 ; 35 L. T. 237 ; 24 W. R. 821 301 V. Churton, 2 B. & S. 475 ; 31 L. J. Q. B. 139 ; 8 Jur. N. S. 795 ; 6 L. T. 320 265, 284 V. Cook, 8 B. & C. 728 ; 3 M. & Ry. 444. . . 151, 289, 301 V. Day, 4 Esp. 262 ; 6 R. R. 857 199 V. Harries, 1 M. & Gr. 695 ; 1 Scott, N. R. 524 ; 4 Jur. 723 ; 9 L. J. C. P. 308 130 V. Havward, L. R. 4 Ex. 311 ; 38 L. J. Ex. 175 ; 20 L. T. 814 66 V. Heiitliorn, 2 B. & C. 477 ; 3 D. & R. 647 . . . 328, 332 r. Lnlhani, (1895) 2 Q. B. 400 ; 73 L. T. 146 . . . Add. 40 V. Quartermaine, 18 Q. B. D. 685 ; 17 Id. 414 ; 56 L. J. Q. B. 340 ; 57 L. T. 537 ; 35 W. R. 555 ; 51 J. P. 516 . V. Rhvmnev R. Co., L. R. 6 Q. B. 266 ; 5 Id. 226 ; 39 L. J. Q. B. "141 ; 40 Id. 89 ; 22 L. T. 297 ; 24 Id. 145 ; 18 W. R. 668 ; 19 Id. 668 V. Sliillibeer, 1 M. & W. 125 ; T. & G. 290 ; 5 L. J. Ex. 138 . V. Wliip, unreported Thompson, Re, 6 H. & N. 193 V. Doniinv, 14 M. & W. 403 ; 14 L. J. Ex. 320 . V. Gardner, 1 C. P. D. 777 V. Hakewell, 19 C. B. N. S. 713 ; 35 L. J. C. P. 18 ; 13 L. T. 289 V. Harvey, Comb. 121 ....... V. , 4 H. & N. 254 ; 28 L. J. M. C. 163 ; 7 W. R. 276 224 139 452 665 739 322 62 356 281 V. Lacv, 3 B. & AU1. 283 V. Mashiter, 1 Binij. 283 ; 8 Moore, 254 . V. Parish, 5 C. B. N. S. 685 ; 28 L. J. C. P. 153 ; 5 Jur. N. S. 986 ; 7 W. R. 210 V. Percival, 5 B. & Ad. 925 ; 3 N. & M. 167 ; 3 L. J. K. B. 98 V. Ross, 5 H. & N. 16 ; 29 L. J. Ex. 1 ; 5 Jur. N. S. 1133; 1 L. T. 43 ; 8 W. R. 44 V. Webster, 4 Drew. 628 ; 4 De G. & J. 600 ; 28 L. J. Ch. 700 ; 5 Jur. N. S. 668, 931 ; 7 Id. 531 ; 4 L. T. 750 ; 7 W. R. 596, 048 ; 9 Id. 641 Thorne v. Heard, (1893) 3 Cli. 530 ; (1894) 1 Cli. 599 ; (1895) A. C. 495 ; 68 L. T. 791 ; 70 Id. 541 ; 73 Jd. 291 . Thomhil V. Kinf,', Cro. Eliz. 757 .... Tlioriitoii V. II. 10. A. Co., 1 Peake, 25 Tlujro^^ood V. Bryan, 8 C. B. 115 ; 18 L. J. C. B. 336 . Thorj. V. Faccy, 35 L. J. C. P. 349 ; 12 Jur. N. S. 741 Thorpe v. Coleman, 1 C. B. 990 ; 14 L. J. C. P. 200 ; 9 Jur V. Thorpe, Holt, 96 . Tlin^fall V. ]}<>rwick, 7 Q. B. 711 ; 10 Id. 210 ; 20 W. R. 1032 ; 41 L J. Q. !'.. 260 ; 44 Id. 87 ; 20 L. T. 791 ; 32 Id. 95 . 118, 124, 125 Threlfall, Re, 16 V,h. D. 274 ; 50 L. J. Ch. 318 ; 42 L. T. 596 ; 44 Id. 74 ; 28 W. K. 708 ; 29 Id. 128 510,518 903 381 1L4 427 113 333 266 20 568 47 492 277 527 386 708 TO VOLUME I. PAGE Threr v. Barton, Moore, 94 61 Thrift V. Youle, 2 C. P. D. 432 ; 4G L. J. C. P. 402 ; 3G J.. T. 114 .220 Thunder v. Belcher, 3 East, 449 504, 526 Thni'sby v. Plant, 1 Wnis. Sauiid. 237 58, G9, 70 Thwaites V. Wil ; J8 Jur. 187 567 Tuniuand, JCx p., 14 Q. B. D. 636 ; 54 L. J. Q. B. 242 ; 53 L. T. 579 ; 33 W. ]{. 137 540, 551 Tuirill r. ( 'lawley, 13 Q. B. 197 ; 18 L. J. Q. B. 155 ; 13 Jur. 878 . 125 'J'w<-(1(1U; ,;. Atkinson, 1 B. & S. 393 ; 30 L. J. Q. B. 295 ; 8 Jur. N. S. 332 ; 4 L. T. 468 ; 9 W. R. 781 139 TwycroHH v. Dreyfus, 5 Ch. D. (;05 ; 46 L. J. Ch. 510 ; 30 L. T. 752... 626, 628 Twynam v. I'ickard, 2 \'>. & Aid. 105 60 Twyiie's Case, 3 Co. Rep. 80 ; Moore, 638 1 Tyson V. Smith, 9 A. i"t K. WC, ; 1 P. ct T). 307 ; 1 N. & P. 781 ; 6 L. J. K. B. 189 559 TO VOLUME I. U. PAGE Udell v. Atherton, 7 11. & N. 172 ; 30 L. J. Ex. 337 ; 7 Jiir. X. S. 777 ; 4 L. T. 797 682 Uhde V. Walters, 3 Camp. 16 ; 13 R. R. 737 546 Ultzen V. Nichols, (1894) 1 Q. B. 92 ; 63 L. J. Q. B. 289 ; 70 L. T. 140 ; 28 W. R. 58 125, 198 Undeihay v. Read, 20 Q. B. D. 209 ; 57 L. J. Q. B. 129 ; 58 L. T. 79, 457 ; 36 W. R. 298 506, 507 Underwood v. Underwood, (1894) P. 204 ; 63 L. J. P. & D. 4, 109 ; 70 L. T. 390 ; 42 W. R. 372 329 United Service Co., Be, 6 Ch. 212 ; 40 L. J. Cli. 286 ; 24 L. T. 115 ; 19 W. R. 89, 457 187 U. S. of America v. McRae, 8 Eq. 69 ; 38 L. J. Ch. 406 ; 20 L. T. 476 ; 17 W. R. 764 679 V. Wacrner, 2Ch. 582 ; 3 Eq. 724 ; 36 L. J. Ch. 624; 16 L. T. 86, 646 ; 15 W. R. 634, 1026 629 Unwin v. Leaper, 1 M. & Gr. 747 ; 10 L. J. C. P. 41 ; 4 Jur. 1037 . 355 Upton & Basset's Case, Cro. Eliz. 445 8, 26 Urmston v. Newcomen, 4 A. k E. 899 ; 6 N. & M. 454 ; 5 L. J. K. B. 175 144 V. Whiteleeg, 55 J. P. 453 ; 63 L. T. 455 . . . .415 Usill V. Hales, 3 C. P. D. 319 ; 47 L. J. C. P. 323 ; 38 L. T. 65 ; 26 W. R. 371 263 Uther V. Rich, 10 A. & E. 784 ; 2 P. & D. 579 469 Vadala v. Lawes, 25 Q. B. D. 310 ; 62 L. T. 701 ; 63 Id. 128 ; 38 W. R. 594 608 Vallance, Re, 26 Ch. D. 353 ; 50 L. T. 474 ; 32 W. R. 918 . . . 368 V. Dewar, 1 Camp. 503 ; 10 R. R. 738 . . . . 478, 541 V. Falle, 13 Q. B. D. 109 ; 53 L. J. Q. B. 459 ; 51 L. T. 158 ; 32 W. R. 770 ; 48 J. P. 519 ; 5 Asp. M. C. 280 . . . .286 Vallezjo V. Wheeler, Lofft, 631 539 Valpy V. Gibson, 4 C. B. 837 ; 16 L. J. C. P. 241 ; 11 Jur. 826 . . 727 Van Casteel v. Booker, 2 Exch. 691 ; 18 L. J. Ex. 9 . . . 729, 745 Van der Donckt v. Tlielhisson, 8 C. B. 812 ; 19 L. J. C. P. 12 . . 623 Van Toll v. S. E. R. Co., 12 C. B. N. S. 75 ; 31 L. J. C. P. 241 ; 8 Jur. N. S. 1213 ; 6 L. T. 244 ; 10 W. R. 578 . . . . 208, 213 Vance -;;. Lowther, 1 Ex. D. 176 ; 45 L. J. Ex. 200 ; 34 L. T. 286 ; 24 W. R. 372 780, 781 Vandenbergh v. Spooner, L. R. 1 Ex. 316 ; 4 H. & C. 519 ; 35 L. J. Ex. _ _ _ . ^ ^gg 193 384 201 ; 12 Jur. N. S. 527 ; 14 L. T. 701 ; 14 W. R. 843 Vanderzee v. Willis, 3 Bro. C. C. 21 . Vandvck v. Hewitt, 1 East, 96 ; 5 R. R. 518 Vanquelin v. Bouard, 33 L. J. C. P. 78 ; 15 C. B. N. S. 341 ; 10 Jur. N. S. 566 ; 9 L. T. 582 ; 12 W. R. 128 620 Vansittart v. Vansittart, 4 K. & J. 62 ; 27 L. J. Ch. 222 ; 4 Jur. N. S 276, 519 ; 6 W. R. 238, 386 366, 367 Varlev v. Coppard, L. R. 7 C. P. 505 ; 26 L. T. 882 ; 20 W. R. 972 . 46 Vaughan v. Menlove, 3 B. N. C. 468 ; 7 C. & P. 525 ; 4 Scott, 244 ; 3 Hodges, 51 ; 6 L. J. C. P. 92 ; 1 Jur. 215 . . 272, 825 V. Taff Vale R. Co., 5 H. & K 679 ; 29 L. J. Ex. 247 ; 6 Jur. N. S. 899 ; 2 L. T. 394 ; 8 W. R. 549 . . 825, 828 V. Wilson, 4 B. N. C. 116 ; 5 Scott, 404 ; 7 L. J. C. P. 22 . 342 Vaughton v. L. N. W. R. Co., L. R. 9 Ex. 93 ; 12 Cox, C. C. 580 ; 43 L. J. Ex. 75 ; 30 L. T. 119 ; 22 W. R. 336 . .• . . . 210 Vavasseur v. Krupp, 9 Ch. D. 351 ; 39 L. T. 437 ; 27 W. R. 176 . 626 Veitch V. Russell, 3 Q. B. 928 ; 3 G. & D. 198 ; Car. & M. 362 ; 12 L. J. Q. B. 13 ; 7 Jur. 60 146 TABLE OF CASES PAGE Venables v. Barinrri;, (1892) 3 Cb. 527 ; 61 L. J. Ch. 609 ; 67 L. T. 110; 40 AV. R. 699 462 V. Hardman, 1 E. & E. 79 ; 28 L. J. M. C. 33 ; 4 Jur. N. S. 1108 671 V. Smith, 2 Q. B. D. 279 ; 46 L. J. Q. B. 470 ; 36 L. T. 509; 25 W. R. 584 353 Vere v. Smith, 1 Ven^. 121 ; 2 Keb. 761, 779, 830 ; 2 Lev. 5 . 191, 199 Vernon v. Hallam, 34 Ch. D. 748 ; 56 L. J. Ch. 115 ; 55 L. T. 676 ; 35 W. R. 156 411 V. Smith, 5 B. & Aid. 1 65 Vertue v. Beaslev, 1 M. & Rob. 21 130, 133 Vicars v. Wilcock.';, 8 East, 1 ; 9 R. R. 361 . . . . 280, 281, 827 Victoria (Speaker of) v. Glass, L. R. 3 P. C. 560 ; 7 Moore, P. C. N. S. 449 ; 40 L. J. P. C. 17 ; 24 L. T. 317 ; 20 W. R. 42 . . . 286 Victors V. Davies, 12 M. & W. 758 ; 1 D. & L. 984 ; 13 L. J. Ex. 214 142 Villers v. Beaumont, 1 Vern. 100 ; Eq. Ca. Ab. 23, pi. 2 . . .26 Vinev v. Bignold, 20 Q. B. D. 172 ; 57 L. J. Q. B. 82 ; 58 L. T. 26 ; 36 W. R. 479 341 Vinkinstone v. Ebden, Carth. 357 ; 5 Mod. 356, 359 ; 1 Ld. Raym. 384; 3 Id. 148 ; 1 Salk. 148 424 Virany v. Warne, 4 Esp. 47 ; 6 R. R. 839 146 Voinet v. Barrett, 55 L. J. Q. B. 39 ; 54 Id. 521 ; 34 W. R. 161 . 608 Voisev, Ex IX, 21 Ch. D. 442 ; 52 L. J. Ch. 121 ; 47 L. T. 362 ; 31 W. R. 19 516, 518, 521 Vyvyan v. Arthur, 1 B. & C. 410 ; 2 D. & R. 670 . . . . 66 W. Waddilove v. Barnett, 4 Dowl. 347 ; 2 B. N. C. 538 ; 2 Scott, 763 ; 1 Hodges, 395 ; 5 L. J. C. P. 145 505, 508 Wadham v. Postmaster-General, L. R. 6 Q. B. 644 ; 40 L. J. Q. B. 310 ; 24 L. T. 545 ; 19 W. R. 1082 49 Wadsworth v. Queen of Spain, 17 Q. B. 171 ; 20 L. J. Q. B. 488 ; 16 Jur. 164 626 Wafers. Mocato, 9 Mod. 112 51 Wain V. Warlters, 5 East, 10 ; 1 Smith, 299 ; 7 R. R. 645 ... 291, 293, 299, 306, 310 Waiuman v. Kynman, 1 Exch. 118 ; 16 L. J. Ex. 232 . . .564 Waite V. Jones. See Jones v. Waite. V. N. E. R. Co., E. B. & E. 719 ; 27 L. J. Q. B. 417 ; 28 Id. 258 ; 4 Jur. N. S. 1300 ; 5 Id. 936 ; 7 W. R. 311 . . . . 278 Wake V. Tinkler, 16 East, 36 770 Wakefield v. Brown, 9 Q. B. 209 ; 15 L. J. Q. B. 373 ; 10 Jur. 853 ...70, 71 Wakelin v. L. & S. W. R. Co., 12 Ajip. Cas. 41 ; 56 L. J. Q. B. 229 ; 55 L. T. 709 ; 35 W. R. 141 ; 51 J. P. 404 276 Walker v. Bartlett, 18 C. B. 845 ; 17 Id. 446 ; 25 L. J. C. P. 156 ; 2 Jur. N. S. 261, 643 ; 4 W. R. 300, 681 ... . 166 V. Butler, 6 E. & B. 506 ; 25 L. J. Q. B. 377 ; 2 Jur. N. S. 687 565 • r. Delacombe, 63L. J. M. C. 77 673 V. (Jiles, 6 C. B. 662 ; 18 L. J. G. P. 323 ; 13 Jur. 588, 753 . 520, 521 V. f!. N. R. Co., 28 L. R. Ir. 09 202 V. Hastings, 4 Camp. 223 ; 1 Stark. 215 ; 2 Cliit. 121 . . 781 V. Hattoii, 10 M. & W. 249 ; 2 Dowl. N. S. 263 ; 11 L. J. Ex. 361 149, 150 V. Jackson, 10 M. & W. 1(51 ; 12 L. J. Ex. 165 . . 204, 224 V. Novill, 3 11. & C. 403 ; 34 L. J. Ex. 73 ; 1 1 Jur. N. S. 246 ; 1 1 L. T. 774 ; 13 W. R. 523 340 V. Perkins, 3 Burr. 1568 ; 1 W. Bl. 517 368 V. liu.stron, 9 M. & W. 411 ; 11 L. J. Ex. 173 ... 148 TO VOLUME T. PAGE Walker v. S. E. R. Co., L. R. 5 C. P. 640 ; 39 L. J. C. P. 340 ; 23 L. T. 14 ; 18 W. R. 1032 V. Walker, 54 L. T. 792 . V. Will()Ughl)V, 6 Taunt. .530 ; 2 Marsh. 230 V. York. & N! Mid. R. Co., 2 E. & B. 750 ; 23 L. J. Q. P,. 73 ; 352 420 108 -* 2 C. L. R. 237 ; 18 Jiir. 143 ; 2 W. R. 11 . . . . 208, 210 Wall V. Cockerell, 29 L. J. Ch. 816 ; 30 Id. 417 ; 32 Id. 276 ; 10 H. L. C. 229 ; 6 Jur. N. S. 768 ; 7 Id. 29 ; 9 Id. 447 ; 3 L. T. 138, 490 ; 8 Id. 1 ; 8 W. R. 441 ; 11 Id. 442 351 Wallace v. A.-G., 33 L. J. Ch. 314 ; 35 Id. 124 ; 1 Ch. 1 ; 10 Jur. N. S. 249 ; 10 L. T. 51 ; 12 W. R. 506 . . . .413 -!). Telfair, 2 T. R. 188, u 183 Waller v. Lacy, 1 M. & Gr. 54 ; 1 Scott, N. R. 186 ; 8 Dowl. 563 ; 9 L. J. C. P. 217 ; 4 Jur. 435 570 V. Loch, 7 Q. B. D. 619 ; 51 L. J. Q. B. 274 ; 45 L. T. 242 ; 30 W. R. 18 ; 46 J. P. 484 262 Wallis V. Day, 2 M. & W. 273 ; M. & H. 22 ; 6 L. J. Ex. 92 ; 1 Jur. 73 406, 414 V. Littell, 11 C. B. N. S. 369 ; 31 L. J. C. P. 100 ; 8 Jur. N. S. 745 ; 10 W. R. 192 340 Walmsley v. Child, 1 Ves. sen. 341 454 Walrond i\ Hawkins, L. R. 10 C. P. 342 ; 44 L. J. C. P. 116 ; 32 L. T. 119 ; 23 AV. R. 390 37, 45 V. Walrond, 1 Johns. 18 ; 28 L. J. Ch. 97 ; 4 Jur. N. S. 1099 ; 7 W. R. 33 367 Walsall V. L. & N. W. R. Co., 4 App. Cas. 30 ; 3 Q." B. D. 449 ; 48 L. J. M. C. 57, 166 ; 38 L. T. 665 ; 39 Id. 453 ; 26 W. R. 705 ; 27 Id. 189 658, 660 Walsby v. Anley, 30 L. J. M. C. 121 ; 7 Jur. N. S. 465 ; 3 L. T. 666 ; 9 W. R. 271 650 Walsh V. Feelv, 1 Jones (Exch. Ir.) 413 97 V. Walsh, 1 Ir. Eq. 209 433 Walter D. Wallet, The, [1893] P. 202 ; 62 L. J. P. 88 ; 69 L. T. 771 ; 1 R. 627 261 Walter v. Cubley, 2 C. & M. 151 ; 4 Tjr. 87 ; 3 L. J. Ex. 2 . . 782 V. Hanger, Moore, 832 250 V. James, L. R. 6 Ex. 124 ; 40 L. J. Ex. 104 ; 24 L. T. 188 ; 19 W. R. 472 338 V. Smith, 5 B. & Aid. 439 ; 1 D. & R. 1 . . . . 193, 197 Wannel v. Chamber of the City of London, 1 Str. 675 ; 8 Mod. 267 ; 3 Burr. 1328 393 Wanstead L. B. v. Hill, 13 C. B. N. S. 479 ; 32 L. J. M. C. 135 ; 9 Jur. N. S. 972 ; 7 L. T. 744 ; 11 W. R. 368 268 Warburton r. Ivie, 1 Jones (Exch. Ir.) 313 96 V. Loveland, 6 Bligh, N. S. 1 27 Ward's Case, 2 Str. 747 ; 2 Ld. Raym. 1461 ; 3 Id. 358 . . . 758 , Latch. 4, 77, 84 ; W. Jones, 69 577 V. Byrne, 5 M. & W. 548 ; 9 L. J. Ex. 14 ; 3 Jur. 1175 . .403 V. Day, 4 B. & S. 337 ; 5 Id. 359 ; 33 L. J. Q. B. 254 ; 10 L. T. 578 ; 12 W. R. 829 37, 38, 39, 40 V. Dudley, 57 L. T. 20 427 V. Llovd, 6 M. & Gr. 785 ; 7 Scott, N. S. 499 ; 1 D. & L. 763 ; 13 L. J. C. P. 5 365 V. Lumley, 5 H. & N. 87 ; 29 L. J. Ex. 325, 372 ; 6 Jur. N. S. 560 ; 8 W. R. 543 788 V. Weeks, 7 Bing. 211 ; 4 M. & P. 796 280 Warde v. Stewart, 1 C. B. N. S. 88 ; 5 W. R. 6 547 Warden v. Jones, 2 De G. & J. 76 ; 26 L. J. Ch. 427 ; 27 Id. 190 : 4 Jur. N. S. 269 .27 Ware v. Gardner, 7 Eij. 317 ; 38 L. J. Ch. 348 ; 20 L. T. 71 ; 17 \V. R. 439 20 TABLE OF CASES Warrington v. Early, 2 E. & B. 763 ; 2 C. L. R. 979 ; 23 L. J. Q. B. 47 ; 18 Jur. 42 ; 2 W. R. 78 782 Warwick v. Richardson, 10 M. & W. 284 375 -;;. Rogers, 5 M. & Gr. 340 ; 6 Scott, N. R. 1 ; 12 L. J. C. P. 113 785 Wason V. Walter, L. R. 4 Q. B. 73 ; 38 L. J. Q. B. 34 ; 19 L. T. 409 ; 8 B. & S. 671 ; 17 W. R. 169 262, 264 Waterfall v. Penistone, 6 E. & B. 876 ; 26 L. J. Q. B. 100 ; 3 Jur. N. S. 15 ; 4 W. R. 726 .427 Waters v. Tompkins, 2 C. M. & R. 723 ; T. & G. 137 ; 5 L. J. Ex. 61 569 Watkins v. Birch, 4 T:iunt. 823 13 V. Rymill, 10 Q. B. D. 178 ; 52 L. J. Q. B. 121 ; 48 L. T. 426 ; 31 W. R. 337 ; 47 J. P. 357 209 . V. Towers, 2 T. R. 275 600 Watling V. Oastler, L. R. 6 Ex. 73 ; 40 L. J. Ex. 43 ; 23 L. T. 815 ; 19 W. R. 388 275 Watson, Ex p., 5 Ch. D. 35 ; 46 L. J. Bkcy. 97 ; 36 L. T. 75 ; 25 W. R. 489 727, 733 v. Svvann, 11 C. B. N. S. 756 ; 31 L. J. C. P. 210 . . .349 V. Turner, B. N. P. 129, 147, 281 143 V. Woodman, 20 Eq. 721 ; 45 L. J. Ch. 57 ; 24 W. R. 47 . 568 Watters v. Smith, 2 B. & Ad. 889 ; 1 L. J. K. B. 31 . . . . 330 Waugh V. Cnpe, 6 M. & W. 824 ; 10 L. J. Ex. 145 . . . .564 V. Morris, L. R. 8 Q. B. 202 ; 42 L. J. Q. B. 57 ; 28 L. T. 265 ; 21 W. R. 438 371 Way V. G. E. R. Co., 1 Q. B. D. 692 ; 45 L. J. Q. B. 874 ; 35 L. T. 253 210 V. Hearn, 13 C. B. N. S. 292 ; 32 L. J. C. P. 34 ; 6 L. T. 751 . 295 Weatherall v. Gearing, 12 Ves. 504 ; 8 R. R. 369 ... 46, 48 442 199 92, 93 . 135 425 218 389 537 139 9 Jur. . 278, 279 306 ; 26 L. T. . 278 . 304 . 434 . 334 Q. V,. 577 ; 53 L. T. 62 : 49 J. P. 773 378 C. P. SirT. 221 18 Weaver v. Ward, Hob. 134 Webb, In re, 8 Taunt. 443 V. Austin, 8 Scott, N. E. 419 ; 7 M. & Gr. 701 ; 13 L. J 203 V. Beavan, 6 M. & Gr. 1055 ; 7 Scott, N. R. 936 V. Bell, Sid. 422, 440 ; 1 Ventr. 36 ; 2 Keb. 529, 595 ; Raym. 218 V. G. W. R. Co., 26 W. R. Ill V. Heme Bay Commrs., L. R. 5 Q. B. 642 ; 39 L. J. Q. B 22 L. T. 745 ; 19 W. R. 241 V. Plummer, 2 B. & Aid. 746 . V. Rhodes, 3 B. N. C. 732 ; 4 Scott, 497 ; 6 L. V. Russell, 3 T. R. 393 ; 1 R. R. 735 V. Salmon, 13 Q. B. 886, 894 ; 3 H. L. C. 510 143 ; 19 Id. 34 ; 14 Jur. 33 ... . Webber v. Maddocks, 3 Camp. 1 . . . Webster v. De Tastet, 7 T. R. 157 ; 4 R. R. 402 . Weeks V. Maillardet, 14 East, 568 Welby V. Drake, 1 C. & P. 557 . Welch V. L. & N. W. R. Co., 34 W. R. 166 . Weld V. Baxter, 11 Exch. 816 ; 1 H. & N. 568 ; 25 L. J. Ex. 214 ; 26 Id. 112 ; 3 Jur. N. S. 91 ; 5 W. R. 113 Wcl.lon V. De Bathe, 54 L. J. Q. B. 113 ; 14 Q. B. D. 339 ; 53 L. T. 520 ; 3:? W. R. 32H Wellock V. (Jonstantine, 32 L. J. Ex. 285 ; 2 H. & N. S. 232 ; 7 L. T. 751 AVell.s V. Abrahams, L. R. 7 Q. B. 554 ; 41 L. J. (,>. I 433 ; 20 \V. R. 659 . V. Ilorton, 4 Ring. 40 ; 12 Moore, 176 Widsli 7-. Rose, 6 Bing. 638 ; 4 M. & P. 484 Wen ham i;. Fowle, 3 I^owl. 43 . Wcnlock V. River Dee Co., 10 App. Cas. 354 ; 54 L. J. J. C. P. 212 . 60, 62, 74, 512 L. J. Q. B. . 339 . 784 . 480 . 784 . 338 . 201 95 . 280 C. 146 TO VOLUME I. PAGE Wenman v. Lyon, 64 L. T. 88 ; (1891) 1 Q. B. 634 ; 60 L. J. Q. B. 223 ; 39 W. R. 301 18 Wennall v. Adnev, 3 B. & P. 247 ; 6 R. E. 780 143 WentAvorth v. B alien, 9 B. & C. 840 260 V. Outhwiiite, 10 M. & W. 436 ; 12 L. J. Ex. 173 720, 721, 722, 727, 730 West V. Dobb, L. R. 5 Q. B. 460 ; 4 Id. 634 ; 9 B. & S. 755 ; 38 L. J. Q. B. 289 ; 39 Id. 190 ; 20 L. T. 737 ; 23 Id. 76 ; 17 W. K. 879 49, 65, 69 V. Fritclie, 3 Exch. 216 ; 18 L. J. Ex. 50 516 V. Nibbp, 4 C. B. 172 ; 17 L. J. C. P. 150 . . . . 130, 133 V. Skipp, 1 Ves. sen. 239, 456 19 V. Steward. 14 M. & W. 47 786 West Cumberland Co. v. Kenyon, 11 Ch. D. 782 ; 6 Id. 773 ; 46 L.J. Cli. 850 ; 48 Id. 793 ; 40 L. T. 703 ; 28 W. R. 23 . . . . 823 West Norfolk Manure Co. v. Archdale, 16 Q. B. D. 754 ; 55 L. J. Q. B. 230 ; 54 L. T. 561 ; 34 W. R. 401 ; 50 J. P. 500 . . .266 Westbury-upon-Severn Union, Ke, 4 E. & B. 314 . . . 641, 663 Westbury v. Powell, Co. Lit. 56 a 245, 253 Westlake v. Adams, 5 C. B. N. S. 248 ; 27 L. J. C. P. 271 ; 4 Jur. N. S. 1021 375 Westmdre,r. Paine, (1891) 1 Q. B. 482; 60 L. J. M. C. 89 ; 64 L. T. 55 ; 39 W. R. 463 ; 55 J. P. 440 ; 17 Cox, G. C. 244 . . . 673 Weston V. Snevd, 1 H. & N. 703 ; 26 L. J. Ex. 161 ; 5 W. R. 317 . 645 Westzinthus, lie, 5 B. & Ad. 817 ; 2 N. & M. 644 ; 3 L. J. K. B. 56 738, 739 Wey V. Yallv, 6 :\Iod. 194 ; 2 Salk. 651 ; 3 Id. 381 ; Holt, 705 . . 588 Whaite v. L. & Y. R. Co., L. R. 9 Ex. 67 ; 43 L. J. Ex. 47 ; 30 L. T. 272 i 22 W. R. 374 207 AVhalev v. Laing, 2 H. & N. 476 ; 26 L. J. Ex. 327 ; 8 W. R. 439 . 345 Whalley v. L. & Y. R. Co., 13 Q. B. D. 131 ; 53 L. J. Q. B. 285 ; 50 L. T. 472 ; 32 W. R. 711 ; 48 J. P. 500 443, 823 Wharton v. Naylor, 12 Q. B. 673 ; 6 D. & L. 136 ; 12 Jur. 894 ; 17 L. J. Q. B. 278 432 AVhatman v. Pearson, L. R. 3 C. P. 422 ; 37 L. J. C. P. 156 ; 18 L. T. 290 ; 16 W. R. 649 353 Wheatley v. Low, Cro. Jac. 668 181 Wheeler' i;. Branscombe, 5 Q. B. 373 ; 1 D. & M. 406 ; 13 L. J. Q. B. 83 ; 7 Jur. 1131 507 V. Montitiore, 2 Q. B. 133 ; 1 G. & D. 493 ; 11 L. J. Q. B. 34 ; 6 Jur. 299 513 Whistler v. Foster, 32 L. J. C. P. 161 ; 14 C. B. N. S. 248 ; 8 L. T. 317 ; 11 W. R. 648 472 Whitby V. Mitchell, 42 Ch. D. 494 ; 44 Id. 85 ; 59 L. J. Ch. 8, 485 ; 61 L. T. 353 ; 62 Id. 771 ; 38 W. R. 5, 337 418 Whitcomb v. Whiting, 2 Dou^l. 652 561 White V. Carmarthen R. Co., 1 H. & M. 786 ; 33 L. J. Ch. 93 ; 9 L. T. 439 ; 12 W. R. 68 373 V. Feast, L. R. 7 Q. B. 353 ; 41 L. J. M. C. 81 ; 26 L. T. 611 ; 20 W. R. 382 667 V. G. W. R. Co., 2 C. B. N. S. 7 ; 26 L. J. C. P. 158 ; 5 W. R. 488 223 V. Hawkins, unreported 496, 500 V. Morris, 11 C. B. 1015 ; 21 L. J. C. P. 185 ; 16 Jur. 500 . 15 V. Sawyer, 1 Palm. 211 532 V. Spettigue, 13 M. & W. 603 ; 1 C. & K. 673 ; 14 L. J. Ex. 99 ; 9 Jur. 70 279 V. Stringer, 2 Lev. 105 29 V. Wiltshire, Palm. 52 ; 2 Rolle, 137 ... . 105, 108 Whitehead r. Anderson, 9 :\I. & W. 518 ; 11 L. J. Ex. 157.. .726, 729, 732, 733 V. Greetham, 2 Bing. 464 ; M'Clel. & Y. 205 ; 10 Moore, 183... 182 TABLE OF CASES Whitehead v. Taylor, 10 A. & E. 210 ; 2 P. & D. 367 ; 9 L. J. Q. B. 65 ; 4 Jur. 247 350 Whitehouse v. Fellowes, 10 C. B. N. S. 765 ; 30 L. J. C. P. 305 ; 4 L. T. 177 ; 9 W. R. 557 446 Whiteley v. Adams, 15 C. B. N. S. 392 ; 33 L. J. C. P. 89 ; 10 Jur. N. S. 470 ; 9 L. T. 483 ; 12 W. R. 153 262 Whitmg V. Burke, 6 Ch. 342 ; 10 Eq. 539 151 Whitlock's Case, 8 Co. Rep. 70 61 Whittaker r. Howe, 3 Beav. 383 404, 411 Whittle V. Fraukland, 31 L. J. M. C. 81 ; 8 Jur. N. S. 382 ; 5 L. T. 639 647 Whitton V. Peacock, 3 Myl. & K. 325 ; 2 B. N. C. 411 ; 2 Scott, 630 ; 1 Hodges, 376 60, 91, 93 Wickham v. AVickliam, 2 K. & J. 478 291 Wig!4 V. Shuttlewortli, 13 East, 87 371 Wigglesworth v. Dallison, 1 Dougl. 201 528 Wilbraham v. Snow, 2 Wms. Saund. (ed. 1871), 87 . . . . 113 Wild Ranger, The, 32 L. J. A. 49 ; 31 Id. 206 ; 9 Jur. X. S. 134 ; 7 L. T. 725 ; 11 W. R. 255 618 Wildbor r. Rainforth, 8 B. & C. 4 ; 2 M. & Ry. 185 .... 133 Wildes V. Dudlow, 19 Eq. 198 ; 44 L. J. Ch. 341 ; 23 W. R. 435 . 290 Wildy V. Stephenson, C. & E. 3 . . . . . . . 545, 559 Wilkes V. Broadbent, 2 Str. 1224 533 . V. Perks, 5 M. & Gr. 376 ; 6 Scott, X. R. 42 ; 12 L. J. C. P. 145 ; 7 Jur. 68 342 Wilkins v. Henisworth, 7 A. & E. 807 ; 3 X. & P. 55 ; 1 W. W. & H. 10 ; 7 L. J. M. C. 28 ; 2 Jur. 94, 301 . . . . 640 . V. Wright, 3 Tyr. 824 ; 4 Id. 121 ; 2 C. & M. 191 ; 3 L. J. M. C. 39 640 Wilkinson v. Byers, 1 A. & E. 106 ; 3 X. & M. 853 ; 3 L. J. K. B. 144... 330, 331 . V. Coverdale, 1 Esp. 75 183 . V. Dutton, 3 B. & S. 821 ; 32 L. J. M. C. 152 ; 9 Jur. X. S. 1104; 8L. T. 276 665 V. Evans, L. R. 1 C. P. 407 ; 1 H. & R. 552 ; 35 L. J. C. P. 224 ; 12 Jur. X. S. 600 ; 14 W. R. 963 . . 297, 300 V. Hall, 3 B. X. C. 508 ; 4 Scott, 301 ; 3 Hodges, 56 ; 6 L. J. C. P. 82 513, 514 V. Johnson, 3 B. & C. 428 ; 5 D. & R. 403 . . . . 785 . V. Stoney, 1 Jebb & S. 509 351 Willans v. Ayres, 3 App. Cas. 133 ; 47 L. J. P. C. 1 ; 37 L. T. 732... 556, 559 William's Case, 5 Co. Rep. 72, b. 237, 253 Williams, Ex p., 7 Ch. D. 138 ; 47 L. J. Bkcv. 26 ; 37 L. T. 764 ; 26 W. R. 274 521 ,Be, 21 L. J. M. C. 46 ; 2 L. M. & P. 580 ; 15 Jur. 1060 . 652 r. African S. S. Co., 1 H. & X. 300 ; 26 L. J. Ex. 69 ; 2 Jur. X. S. 693 219 V. Bayley, L. R. 1 II. L. 200 ; 4 GifF. 638 ; 35 L. J. Ch. 717 ; 11 Jur. X. S. 236 ; 12 Id. 875 ; 12 L. T. 110 ; 14 Id. 802 351, 365, 385, 386 r. Biirrell, 1 C. B. 402 ; 14 L. J. C. P. 98 ; 9 Jur. 282 70, 96 V. Earic, L. R. 3 Q. B. 739 ; 37 L. J. Q. B. 231 ; 19 L. T. 238; HI W. It. 1041 65, 69 V. Everett, 14 Kast, 582 ; 13 R. U. 315 .... 140 . V. (iesse, 3 B. X. C. 849 ; 5 Scott, 56 ; 7 C. & P. 777 . .124 V. Groiicott, 4 n. & S. M9 ; 32 L. J. g. P.. 237 ; 9 Jur. X. S. 1237 ; 11 \V. R. 886 ; 8 L. T. 458 .. . 795, 816 r. Jlolnies, 8 Excii. 861 ; 22 L. J. Ex. 283 ; 1 W. }{. 391 . 428 . V. Lake, 29 1.. J. Q. \'>. 1 ; 2 E. & E. 349 ; 6 Jur. X. S. 45 ; 1 L. T. 56 ; 8 W. R. 41 298 . V. LejH'r, 3 P.urr. 18H6 ; 2 Wils. 302 . . . 291, UIO, 461 . V. Lewis, 6 II. li. C. 1013 ; 3 Drew. 668 ; 5 ,Iur. N. S. 323 ; 5 VV. \i. 17,243; 7 Id. 349 419 . J. Ex. 289 ; 274 .9 L. T. 757 ; 264 622 2 J. P. 343 . 656 769 456 TO VOLUME I. I'AGE Williams v. Moor, 1 1 M. & W. 256 ; 2 Dowl. N. S. 993 ; 12 L. J. Ex. 253; 7.hir. 817 143 V. Morris, 8 M. & W. 488 ; 11 L. J. Ex. 126 ... . 135 V. Mostyii, 4 M. & W. 145 ; 7 Dowl. 38 ; 7 L. 2 jur. 643 V. Smith, 22 Q. B. D. 134 ; 58 L. J. Q. B. 21 37 W. B. 93 ; 52 J. P. 823 . r. Wheeler, 8 C. B. N. S. 299 . V. Wynne, 57 L. J. M. C. 30 ; 58 L. T. 283 ; 52 J. Williamson v. Henley, 6 Bin". 299 ; 3 M. & P. 731 V. Thomson, 16 Ves. 443 . V. Williamson, 9 Ch. 729 ; 17 Eq. 549 ; 43 L. J. Ch. 382, 738 ; 30 L. T. 154 ; 31 Id. 291 ; 22 W. R. 682 . 47 Willis, Re, 21 Q. B. D. 384 ; 57 L. J. Q. B. 634 ; 59 L. T. 749 ; 36 W. R. 639 524 V. De Castro, 4 C. B. N. S. 216 ; 27 L. J. C. P. 243 ; 6 W. R. 50l) 340 V. Muclachlan, 1 Ex. 1). 376 ; 45 L. J, Q. B. 689 ; 35 L. T. 218 631 V. Newhani, 3 Y. & J. 518 568 Willfams v. Bullmore, 33 L. J. Ch. 461 ; 11 Jur. N. S. 1115 ; 9 L. T. 216 ;■ 11 W. R. 506 368 Wilmhnrst v. Bowker, 5 B. N. C. 541 ; 7 M. & Gr. 882 ; 8 Scott, N. R. 571 ; 8 L. J. C. P. 309 ; 3 Jur. 796 720 Wilson V. Brett, 11 M. &W. 113 ; 12 L. J. E.\-. 264 . . . 185,190 *v. Couplaml, 5 B. & Aid. 228 . . . . . . .140 V. Cutting, 10 Bing. 436 ; 4 M. & Scott, 268 . . . . 153 V. Dickson, 2 B. & Aid. 2 219 V. Ducket, 2 Mod. 61 429 r. Hart, 7 Taunt. 295 ; 1 Moore, 45 539 V. , 1 Ch. 463 ; 2 H. & M. 551 ; 35 L. J. Ch. 569 ; 11 Jur. N. S. 735 ; 12 Id. 460 ; 12 L. T. 798 ; 14 Id. 499 ; 13 W. R. 988 ; 14 Id. 748 87 V. Muskett, 3 B. & Ad. 743 366 r. Newlierry, L. R. 7 Q. B. 31 ; 41 L. J. Q. B. 31 ; 25 L. T. 695 ; 20 W. R. Ill 825,829 V. Nightingale, 8 (,). B. 1034 ; 15 L. J. Q. B. 307 ; 10 Jur. 917 497 V. Qiieen's'Club, (1891) 3 Ch. 522 ; 00 L. J. Ch. 698 ; 65 L. T. 42 ; 40 W. R. 172 64, 511 V. R. E. A. Co., 2 Camp. 623 ; 12 R. R. 760 .... 480 V. Stiugnell, 7 Q. B. D. 548 ; 50 L. J. M. C. 145 ; 45 L. T. 218 ; 45 J. P. 831 : 14 Cox, C. C. 624 365 — • V. Tummon, 6 M. & Gr. 236 ; 6 Scott, N. R. 894 ; 1 D. & L. 513 ; 12 L. J. C. P. 307 349 V. Waddell, 2 Ai^p. Cas. 95 ; 35 L. T. 639 . . . .822 r. Wilson, 14 Sim. 405 ; 1 H. L. C. 538 ; 1 De G. it S. 152 ; 14 L. J. Ch. 204 ; 9 Jur. 148 ; 11 Id. 340 . . 366 V. , 1 Sim. N. S. 288 ; 20 L. J. Ch. 365 ; 15 Jur. 349 . 419 Wilton V. Atlantic R. Mail Co., 10 C. B. N. S. 453 ; 30 L. J. C. P. 369 ; 8 Jur. N. S. 231 ; 4 L. T. 700 ; 9 W. R. 748 . 220 V. Dunn, 17 Q. B. 294 ; 21 L. J. Q. B. 60 ; 15 Jur. 1104 ... 508, 526 AVinch v. Keeley, 1 T. R. 619 771 Winchilsea's Policy Trust, Be, 39 Ch. D. 168 ; 58 L. J. Ch. 20 ; 59 L. T. 167 ; 37 W. R. 77 142 Windhill L. B. v. Vint, 45 Ch. D. 351 ; 59 L. J. Ch. 608 ; 62 L. T. 725 ; 63 Id. 366 ; 17 Cox, C. C. 41 ; 38 W. R. 738 . . . . 364 Winds jr's (Dean of) Case, 5 Co. Rep. 24 a 65 Windsor (Dean ol') v. Cover, 2 Wm.?. Saund. 301 .... 54 Wing V. Earle. Cro. Eliz. 2G7 552 T. Mill, 1 B. & AW. 104 143 Wingate r. Waite, 6 M. & W. 739 ; 9 L. J. Ex. 319 ; 4 Jur. 860 . 649 Winn r. Mos-man, L. R. 4 Ex. 292 ; 38 L. J. Ex. 2.10 ; 20 L. T. 672 ; 17 W. R. 924 655 S.L.C. — VOL. I. /( TABLE OP CASES PlOB Winsmore v. Greenbank, Willes, 577 i!58 Winter v. Innes, 4 My. & C. 101 ; 2 Juv, 981 333 Winterbottom v. Derby, L. R. 2 Ex. 316 ; 36 L. J. Ex. 194 ; 16 L. T. 771 ; 16 W. R. 15 274 Wise V. G. W. R. Co., 1 H. & N. 63 ; 25 L. J. Ex. 258 ; 4 W. R. 551 213 Wiseman v. Vandeputt, 2 Vern. 203 . . . 688, 705, 716, 720 Witherley v. Regent's Canal Co., 12 C. L. N. S. 2 ; 3 F. & F. 61 ; 6 L. T. 255 276 Witt, Ee, 2 Ch. D. 489 ; 45 L. J. Bkcy. 118 ; 34 L. T. 785 ; 24 W. E. 891 559 Wolfe V. Matthews, 21 Ch. D. 194 ; 51 L. J. Ch. 833 ; 47 L. T. 158 ; 30 W. R. 838 370 Wollaston v. Hakewill, 3 Scott N. R. 593 ; 3 M. & Gr. 297 ; 10 L. J. C. P. 303 47, 96 V. Tribe, 9 Eq. 44 ; 21 L. T. 449 ; 18 W. R. 83 . . . 29 Wolmerhausen v. Gullick, (1893) 2 Ch. 514 ; 62 L. J. Ch. 773 ; 68 L. T. 753 152 Wolverhampton Bank, Ex p., 14 Q. B. D. 32 ; 33 W. R. 642 ; 1 M. B. R. 261 364, 386 Banking Co. v. Marston, 7 H. & N. 148 ; 30 L. J. Ex. 402 ;' 7 Jiir. N. S. 1040 ; 4 L. T. 524 ; 9 W. R. 790 17 Waterworks Co. v. Hawkesford, 28 L. J. C. P. 242 ; 6 C. B. N. S. 336 ; 5 Jur. X. 8. 1104; 7 W. R. 464. . . 285 r. HavvksCord, 7 C. B. N. S. 795 ; 29 L. J. C. P. 121 ; 6 Jur. N. S. 632 ; 2 L. T. 354 ; 8 W. R. 446 . 381 Womerslev v. Church, 17 L. T. 190 826 -' V. Dallv, 26 L. J. Ex. 219 538 Wood V. Benson, 2 Tyr. 97 ; 2 C. & J. 94 ; 1 Price, 169 ; 1 L. J. Ex. 18 .372 V. Clarke, 1 Tyr. 314 ; 1 C. & J. 484 ; 1 Price, 26 . . . 429 V. Curling, 15 M. & W. 626 ; 16 Id. 628 ; 17 L. J. Ex. 301 ; 12 Jur. 1055 198 V. Dixie, 7 Q. B. 892 ; 9 Jur. 798 18 V. Leadbitter, 13 M. & W. 838 ; 14 L. J. Ex. 161 ; 9 Jur. 187 . 345 V. Roberts, 2 Stark. 417 335 V. Rowcliffe, 6 Hare, 183 743 V. Slack, L. R. 3 Q. B. 379 ; 37 L. J. Q. B. 130 ; 18 L. T. 510 16 W. R. 859 784 Woodhouse v. Wood, 29 L. J. M. C. 149 ; 6 Jur. N. S. 421 ; 1 L. T. 59 671 Woodley v. Metr. District R. Co., 2 Ex. D. 384 ; 46 L. J. Ex. 521 ; 36 L. T. 419 275 Woodman v. Nottingham, 49 New Hampshire R. 387 ; Sedgwick, L. C. on Damages, 685 \ . 230 Woodward v. L. & N. W. R. Co., 3 Ex. D. 121 ; 47 L. J. Ex. 263 ; 38 L. T. 321 ; 26 W. R. 354 206 ,.. I',.]], L. R. 4 Q. B. 55 ; 38 L. J. Q. B. 30 ; 19 L. T. 557 ; 17 W. i;. 117 113 Wookey v. Pole, 4 K & Aid. 1 457, 468 Woollen V. Wright, 1 H. & C. 554 ; 31 L. J. Ex. 513 ; 7 L. T. 73 ; 10 W. li. 715 349 Woolley r. Idle, 4 I'.urr. 1951 393 AVoottoii 7.. Slcireiioni, 12 M. & W. 129 ; 13 L. .). Ex. 72 . . . 62 Woniall r. Smith, 1 Camp. 332 12 Worrall r. Jac.ol), 3 Mer. 256 18 Worthington v. (irinifiditch, 7 Q. 15. 479 ; 15 L. J. Q. J?. 52 ; 10 Jur. 26 566, 567 V. Wiglcv, 3 B. N. C. 451 ; 3 Scott, 555 ; 5 Dowl. 504 ; 5 L. J. (\ P. 325 ; i Jur. 183 323 Wortley v. Nottingham L. I',., 21 L. T. 582 415 TO VOLUME 1. I'AGK Wright 7-. Burroui^heP, 3 C. B. 685 ; 4 D. & L. 226 ; 15 L. J. C. P. 277 ;'lG Id. 6 ; 10 Jur. 860 . . . . 50, 60, 134 V. Campbell, 4 Burr. 2041 ; 1 AV. Bl. 627 . 678, 680, 683, 686, 687,699, 70.-), 713, 715, 734 V. Dewes, 1 A. & E. 641 ; 3 N. & M. 790 ; 3 L. J. K. li. 181 . 432 V. Inshaw, 1 Dowl. N. S. 802 ; 6 Jur. 857 .... 783 V. Mid. R. Co., L. R. 8 Ex. 137 ; 42 L. J. Ex. 89 ; 29 L. T. 436 ; 21 W. R. 460 224 Wyatt V. G. W. R. Co., 34 L. J. Q. B. 204 ; 6 B. & S. 709 ; 1 1 Jur. N. S. 825 ; 12 L. T. 568 ; 13 W. R. 837 . . . . 276 V. Harrison, 3 B. & Ad. 871 ; 1 L. J. K. B. 237 . . . 270 Wyld V. Picklbrd, 8 M. & W. 443 ; 10 L. J. Ex. 382 . . 185, 202, 205, 206, 208, 222 Wylie V. Birch, 4 Q. B. 566 ; 3 Cx. & D. 629 ; 12 L. J. Q. B. 260 ; 7 Jur. 626 274 Wyndhain v. Chetwynd, 1 W. Bl. 95 ; 1 Burr. 41 4 ; 1 Ld. Ken. 253 ; 2 Id. 121 315 Wynne v. Hughes, 21 W. R. 628 295 Yarmouth v. France, 19 Q. B. D. 647 ; 57 L. J. Q. B. 7 ; 36 W. R. 281 * 277 Yates, Ex p., 2 De G. & J. 191 ; 27 L. J. Bkcy. 9 ; 4 Jur. N. S. 649 . 783 i;. Delamavne, Bac. Abr., ii'xt;cM'. Cas, „ 783, line 8, for Clark, read Clerk. TWYNE'S CASE. MICH. 44 ELIZ.—IN THE STAR CHAMBER. [RErORTED 3 COKE, 80.] What transactions are fraudulent within St. 13 Eliz. c. 5, and 27 Eliz. c. 4. In an information by Coke, the Queen's Attorney-General, against Twyne of Hampshire, in the Star Chamber, for making and publishing of a fraudulent gift of goods, the case on the statute of 13 Eliz. c. 5, was such : Pierce was indebted to Twyne in 400/., and was indebted also to C. in 200L : C. brought an action of debt against Pierce, and pending the writ, Pierce, being possessed of goods and chattels of the value of 300L, in secret made a general deed of gift of all his goods and chattels, real and personal whatsoever, to Twyne, in satisfaction of his debt ; notwithstanding that Pierce continued in possession of the said goods, and some of them he sold ; and he shore the sheep, and marked them with his own mark : and afterwards C. had judgment against Pierce, and had a fieri facias directed to the sheriff of Southampton, who by force of the said writ came to make execution of the said goods ; but divers persons, by command of the said Twyne, did with force resist the said sheriff, claiming them to be the goods of the said Twyne by force of the said gift ; and openly declared b}^ the command- ment of Twyne, that it was a good gift, and made on a good and lawful consideration. And whether this gift, on the whole matter, was fraudulent and of no effect by the said Act of (o) 13 Eliz. or not, was the question. And it was resolved by Sir Thomas Egerton, Lord Keeper of the Great Seal, and by the Chief Justice Popham and Anderson, and the whole court of (a) 5 Co. 60 a, b. 6 Co. 18 b. 10 Jac. 270, 271. Dy. 295, pi. 17, 351, Co. 56 b. 3 Inst. 152. Co. Lit. 3 b, pi. 23. 2 Bulst. 226. Rastal, Entries, 76 a, 290 a, b. 13 El. c. 5. 2 Leon. 207 b. Lane, 47, 103. Hob. 72, 166. 8, 9, 47, 223, 308, 309. 3 Leon. 57. Moor, 638. Doct. pla. 200. Yelv. 196, Latch. 222. 2 Rol. Rep. 493. Palm. 197. 1 Brownl. 111. Co. Ent. 162. 415. Cr. El. 233, 234, 645, 810. Cro. S.L.C. — VOL. I. 1 2 twyne's case. star Chamber, that this gift was fraudulent, within the statute of 13 EHz. And in this case divers points were resolved : 1. That this gift had the signs and marks of fraud, because the gift is general, without exception of his (b) apparel, or of anything of necessity ; for it is commonly said, quod (r) dolosus rersatur in generalibus. 2. The donor continued in possession, and used them as his own ; and by reason thereof he traded and trafficked with others, and defrauded and deceived them. 3. It was made in secret, et dona clandestina sunt semper siispiciosa. 4. It was made pending the writ. 5. Here was a trust between the parties, for the donor possessed all, and used them as his proper goods, and fraud is always apparelled and clad with a trust, and trust is the cover of fraud. 6. The deed contains, that the gift was made honestly, truly, and honcifide', et clausidcs inconstief semper inducunt suspicionem. Secondly, it was resolved, that notwithstanding here was a true debt due to Twyne, and a good consideration of the gift, yet it was not within the proviso of the said Act of 13 Eliz., by which it was provided, that the said Act shall not extend to any estate or interest in lands, &c., goods or chattels, made on a good consideration and bond Jidc ; for, although it is on a true and good consideration, yet it is not bond fide, for no gift shall be deemed to be bond fide within the said proviso which is accompanied with any trust. As if a man be indebted to five several persons in the several sums of 20/., and hath goods of the value of 20Z., and makes a gift of all his goods to one of them in satisfaction of his debt, but there is a trust between them, that the donee shall deal {d) favourably with him in regard of his poor estate, either to permit the donor, or some other for him, or for his benefit, to use or have possession of them, and is contented that he shall pay him his debt when he is able, this shall not be called bond fide within the said proviso ; for the proviso saith on a good consideration, and bond fide ; so a good consideration does not sullice, if it be not also bond fide. And therefore, reader, when any gift shall be to you in satisfac- {b) Godh. 398. Hep. ir.7. Moor, 321. (c) 2 Iroiiiptu causa est, crescit in orlic dolus. And because fraud and deceit abound in these days more ill ill 1 ill former times, it icas resolved in this case by the whole {e) Sec Stat.. I l.'irli. :',, .m].. ] ; Siindors (/) 2 Roll. 779. on U-scs, 5th Ivl., 1.. 21 ; 2 IC.Il. 779. {g) 33 H. 6, 16. 7 Co. 39 b. TWYNES CASE. 5 court, that all statutes made against fraud shouhl he liheralbj and beneficially expounded to suppress the fraud. Note, reader, accord- ing to their opinions, divers resolutions have been made. Between Pauncefoot and Bkint {h), in the Exchequer Chamber, Mich. 35 & 36 Eliz., the case was : Pauncefoot being indicted for recusancy, for not coming to divine service, and having an intent to flee beyond sea, and to defeat the Queen of all that might accrue to her for his recusancy or flight, made a gift of all his leases and goods of great value, coloured with feigned consideration ; and afterwards he fled beyond sea, and afterwards was outlawed on the same indictment : and whether this gift should be void to defeat the Queen of her forfeiture, either by the common law, or by any statute, was the question. And some conceived that the common law which {i) abhors all fraud, would make void this gift as to the Queen ; vide Mich. 12 & 13 Ehz.; Dyer 0') 295; 4 & 5 P. & M. 160. And the statute of (/i) 50 E. 3, c. 6, was considered : but that extends only in relief of creditors, and extends only to such debtors as flee to sanctuaries, and other privileged places. But some conceived that the statute of (/) 3 H. 7, c. 4, extends to this case ; for although the preamble speaks only of creditors, yet it is pro- vided by the body of the act generally, that all gifts of goods and chattels made or to be made on trust to the use of the donor, shall be void and of no effect ; but that is to be intended as to all strangers who are to have prejudice by such gift, but between the parties themselves it stands good. But it was resolved by all the barons, that the statute 13 Eliz. c. 5 {m), extends to it ; for thereby it is enacted and declared, that all feoffments, gifts, grants, &c., "to delay, hinder, or defraud creditors and others of their just and lawful actions, suits, debts, accounts, damages, penalties, forfeitures, heriots, mortuaries, and reliefs," shall be void, &c. So that this Act doth not extend only to {h) Lane, 44, 45. 47, 308, 309. 2 Leon. 8, 9, 223. 3 (i) 3 Co. 78 a. ■ Leon. 57. Latch. 222. 2 Roll. Rep. U) 3 Co. 78 a, b. Dyer, 295, pi. 8, 493. Palm. 415. Cr. EI. 233, 234, 645, 9, 10, &c. Lane, 44. 810. Cr. Jac. 270. 2 Bulst. 226. Hob. (k) Co. Lit. 76 a. 72, 166. Yelv. 196, 197. 1 Brownl. 11. (l) Cro. El. 291, 292. Lane, 45. Dyer, 295, pi. 17, 351, pi. 23. Rastal, (m) Co. Lit. 3 b, 76 a, 290 a, b. 3 Fraudulent Deeds. 1 Rast. Ent. 207 b. Inst. 152. 5 Co. 60 a, b. 6 Co. 18 b. Lane, 47, 103. Moor, 638. Doct. pi. 10 Co. 56 b. Co. Ent. 162 a. 1 Leon. 200. 6 twyne's case. creditors, but to all others iclio had cause of action, or suit, or any Ijenaltij, or forfeiture, dc. And it was resolved, that this ivord forfeiture slioidd not he intoided only of a furfeiture of an obligation, recognizance, or such like {as it was objected by some, that it should, in respect that it comes after damage and penalty), but also to everything ivkich shall by law be forfeit to the king or subject. And therefore, if a man, to prevent a forfeiture for felony, or by outlawry, makes a gift of all his goods, and afterwards is attainted or outlawed, these goods are {n) forfeited, notwithstanding this gift (o) ; the same law of recusants ; and so the statute is expounded bene- licially to suppress fraud. Note well this word (j9) "declare" in the Act of 13 Eliz., by which the parliament expounded that this was the (g) common law before. And according to this resolution it was decreed, Hil. 36 Eliz., in the Exchequer Chamber. Mich. 42 & 43 Eliz. in the Common Pleas, on evidence to a jury, between Standen (r) and Bullock, these points were resolved by the whole court on the statute of 27 Eliz. c. 4. Walmsley, J., said that Sir Christ. Wray, late C. J. of England, reported to him, that he and all his companions of the King's Bench were resolved, and so directed a jury on evidence before them ; that where a man had conveyed his land to the use of himself for life, and afterwards to the use of divers others of his blood, with a future power of revocation, as after such feast, or after the death of such one ; and afterwards, and before the power of revocation began, he, for valuable consideration, bargained and sold the land to another and his heirs ; this bargain and sale is within the (s) remedy of the said statute. For although the statute saith, "the said first conveyance not by him revoked, according to the power by him reserved," which seems by the literal sense to be intended of a present power of revocation, for no revocation can be made by force of a future power until it comes in esse ; yet it was held that the intent of the Act was, that such volun- tary conveyance which was originally subject to a power of (n) ( :o. Lit. 290 b. c. r.9, s. 3. (o) The ■y.i & :J4 Vict. c. 23, iiholished {j>) Co. Lit. 70 a, 290 b. forfeitures for treaHoii or felony, but did (q) JIard. 397. not aMect the law of forfeiture couseciucnt (r) Moor, 605, 01. "J. iJridgm. 23. 5 Co. upon outlawry. Outlawry in civil jiro- Go !>. I':dni. 217. Lane, 22. 2 Jones, 95. ceeding.s wa.") abolished by 42 & 43 Vict. (a) 1 Sid. 133. TWYNES CASE. 7 revocation, be it in pi'cescnti or in faturo, should not stand against a purchaser bond fide for a valuable consideration ; and if other construction should be made, the said Act would serve for little or no purpose, and it would be no difficult matter to evade it : so if A. had reserved to himself a power of revocation with the assent of B., and afterwards A. bargained and sold the land to another, this bargain and sale is good, and within the remedy of the said Act ; for otherwise the good provision of the Act, by a small addition, and evil invention, would be defeated {t). And on the same reason it was adjudged, 38 Eliz., in the Common Pleas, between Lee and his wife executrix of one Smith, plaintiff, and Mary (u) Colshil, executrix of Thomas Colshil, defendant in debt on an obligation of 1000 marks, Eot. 1707. The case was, Colshil, the testator, had the office of the Queen's customer, by letters patent, to him and his deputies ; and by indenture between him and Smith, the testator of the plaintiff, and for 6001. paid, and lOOZ. j^ei' ann. to be paid during the life of Colshil, made a deputation of the said office to Smith ; and Colshil covenanted with Smith, that if Colshil should die before him, that then his executors should repay him 300/. And divers covenants were in the said indenture concerning the said office, and the enjoying of it ; and Colshil was bound to the said Smith in the said obligation to perform the covenants ; and the breach was alleged in the non-payment of the 3001., for- asmuch as Smith survived Colshil ; and although the said covenant to repay the 300/. was lawful, yet, forasmuch as the rest of the covenants were against the statute of (.r) 5 E. 6, cap. 16, and if the addition of a lawful covenant should make the obligation of force as to that (y), the statute would serve for little or no purpose ; for this cause it was adjudged, that the obligation was utterly void. (0 But see 2 Show. 46, post in notis, 3 Leon. 33. 1 Kol. Rep. 157, 23G. p. 25. Goldsb. 180. {u) 2 And. 55, 107. Godb. 213. Gro. {y) 2 And. 56, 57, 108. 1 Mod. Eep. El. 529, Moor. 857. Ley, 2, 75, 79. 35, 36. Hob. 14. 11 Co. 27 b. 2 {x) Style, 29. Cro. El. 520. Cro. Roll. 28. Co. Lit. 234 a. 2 Jones, 90, Jac. 269. Hob. 75. Co. Lit. 234 a. 91. Cro. El. 529, 530. Cro. Car. 338. 12 Co. 78. 3 Inst. 148, 154. 3 Keb. Godb. 212, 213. 1 Brownl. 64. Plowd. 26, 659, 660, 717, 718. 1 Brownl. 68 b. Moor, 856, 857. Ley, 75, 79. 70, 71. 2 And. 55, 107. 3 Bulst. 91. 8 TWYNES CASE. 2nd. It was resolved that if a man hath power of revocation, and afterwards to the intent to defraud a purchaser, he levies a (z) fine, or makes a feoffment, or other conveyance to a stranger, by which he extinguishes his power, and afterwards bargains, and sells the lands to another for a valuable con- sideration, the bargainee shall enjoy the land, for as to him, the fine, feoffment, or other conveyances by which the condition was extinct, was void by the said Act ; and so the first clause, by which all fraudulent and covinous conveyances are made void as to purchasers, extends to the last clause of the Act, sciL, when he who makes the bargain and sale had power of revocation. And it was said that the statute of Eliz. hath made voluntary estates made with power of revocation, as to purchasers, in equal degree with conveyances made by fraud and covin to defraud pur- chasers. Between (a) Upton and Basset in trespass, Trin. 37 Eliz., in the Gammon Pleas, it was adjudged that if a man makes a lease for years by fraud and covin, and afterwards makes another lease hnnd fide, but without fine or rent, reserved, that the second lease should not avoid the first lease. For, 1st. It was agreed, that by the common law an estate made by fraud should be avoided only by him who had a former right, title, interest, debt, or demand, as by 33 H. 6, a sale in open {h) market by covin shall not bar a right which is more ancient : nor a covinous gift shall not defeat execution in respect of a former debt, as it is agreed in 22 Ass. 72 ; but he who hath right, title, interest, debt, or demand more puisne, shall not avoid a gift or estate precedent by fraud by the common law. 2nd. It ivas resolved that no pnrcliaser should avoid a 'precedent conveyance made hy fraud and covin, hut he ivho is a (c) purchaser for money or other valuable consideration ; for although in the prciim)>lo it is said " for money or other good consideration,'" and likewise in the body of the Act " for money, or other good consideration," yet these words "good consideration" are to be {z) ] Co. 112 1), 174 a. Co. Lit. 237 a. (//) Dow. 46 b, 55 a. Fitz. Keplic. Holi. 3:57, 3!i8. Moor, COS. 2 Kol. Kep. 15. 15r. Trespass. 26. Br. Collusion, 4. 337, 496. Wincli. 05. J5r. Property, 6. 2 Inst. 713. 14 H. 8, (o) Co. Knt. 670 b, I'J. Cro. El. 444, 8 b. 33 il. 6, 6 a, b. 445. Lane, 45. (c) Cro. El. 446. TWYNES CASE. 9 intended only of valuable consideration ; and that appears by the clause which concerns those who had power of revocation ; for there it is said, " for money or other consideration paid or given," and this "paid" is to be referred to "money," and "given" is to be referred to "good consideration;" so the sense is " for money paid, or other good consideration given," which words exclude all considerations of nature or blood, or the like, and are to be intended only of valuable considerations which may be given ; and therefore he who makes a purchase of land for a valuable consideration is only a purchaser within the statute ; and this latter clause doth well expound these words "other good consideration," mentioned before in the preamble and body of the Act. And so it was resolved, Pasch. 33 Eliz., in a case (d) referred out of the Chancery to the consideration of Wyndham and Perian^, Justices : between John Needham, plaintiff, and Beau- mont, Serjeant-at-law, defendant : where the case was. Hen. Babington seised in fee of the manor of Lit- Church, in the county of Derby, by indenture, 10 Feb. 8 Eliz., covenanted with the Lord Darcy, for the advancement of such heirs males, as well those he had begot, as those he should afterwards beget, on the body of Mary then his wife (sister to the said Lord Darcy), before the feast of St. John Baptist then next following, to levy a fine of the said manor to the use of the said Henry for his life, and afterwards to the use of the eldest issue male of the bodies of the said Henry and Mary begotten in tail, &c., and so to three issues of their bodies, &c., with the remainder to his right heirs. And afterwards, 8 Mali, ann. 8 Eliz., Henry Babington, by fraud and covin, to defeat the said covenant, made a lease of the said manor for a great number of years to Robert Heys : and afterwards levied the fine accordingly : and on conference had with the other Justices, it was resolved, that although the issue was a purchaser, yet he was not a purchaser in vulgar and common intendment : also consideration of blood, natural affec- tion, is a good consideration, but not such a good consideration which is intended by the statute of 27 Eliz., for (e) a valuable consideration is only a good consideration within that Act. In {d) 1 And. 233. Needham and Beau- (c) 2 Eoll. Kep. 305, 306. mont's Case. 10 TWYNES CASE. this case, Anderson, C.J., of the Common Pleas, said that a man who was of small understanding, and not able to (/) govern the lands which descended to him, and being given to riot and disorder, by mediation of his friends, openly conveyed his lands to them, on trust and confidence that he should take the profits for his maintenance, and that he should not have power to waste and consume the same ; and afterwards, he being seduced by deceitful and covinous persons, for a small sum of money bar- gained and sold his land, being of a great value : this bargain, although it was for money, was holden to be (g) out of this statute, for this Act is made against all fraud and deceit, and doth not help any purchaser, who doth not come to the land for a good consideration lawfully and without fraud or deceit ; and such conveyance made on trust is void as to him who purchases the land for a valuable consideration bond fide, without deceit or cunning. And by the judgment of the whole court Twyne was convicted of fraud, and he and all the others of a riot. (/) Cro. El. 445. (g) Cro. El. 445. Stat. 13 Eliz. c. 5 ; feoff- ments. &c., made with in- tent to delay or dcfiaiul creditors void. Act not to affect bond fvlf imnliasers for ^ood con- sideration without notice. Statute 13 Eliz. c. 5 (made perpetual by 29 Eliz. c. 5), after reciting that feoffments, gifts, grants, alienations, conveyances, bonds, suits, judgments, and executions have been contrived of malice, fraud, covin, collusion, or guile, to delay, hinder, or defraud creditors, or others, of their just and lawful actions, suits, debts, accounts, damages, forfeitures, &c., declares and enacts that every feoffment, &c., of lands, tenements, hereditaments, goods or chattels, by writing or otherwise, and every bond, suit, judgment, or execution, made for any intent or purpose before declared and expressed, shall be as against that person, his heirs, successors, executors, administrators, or assigns, whose actions, &c., are or might be in anywise disturbed, hindered, delayed, or defrauded by such practices, utterly void. By s. G, however, the Act is not to extend to any estate or interest in lands, &c,, on good consideration and bona fide, lawfully conveyed to an}' person not having notice of such covin, iVc. This Act was not by any means the first attempt of the twyne's case. U legislature to foil covinous transactions, for by 3 H. 7, c. 4, Previous " all deeds of gift of goods and chattels made or to be made of trust to the use of the person or persons that made the same deed of gift " were declared " void and of none effect." And b}' the prior Act of 50 Ed. 3, c. G, after reciting "that divers persons do give their tenements and chattels to their friends by collusion to have the profits at their will and after do flee to the franchise of Westminster, of St. Martin-le- Grand of London, or other such privileged places, and there do live a great time with a high countenance of another man's goods, and profits of the said tenements and chattels, till the said creditors shall be bound to take a small parcel of their debt and release the remnant," it was ordained that " if it be found that such gifts be so made by collusion, the said creditors shall have execution of the said tenements and chattels as if no such gift had been made." These two Acts, as well as the 2 R. 2, c. 3, which contained provisions on the same subject, were repealed by the Stat. Law Rev. Act, 1863, with, amongst other qualifications, this somewhat enigmatical one, that the repeal is not to affect any "principle or rule," &c., "derived by, in, or from " the repealed enactments. When it is attempted to invalidate a transfer of goods by Question for showing it to fall within 13 Eliz. c. 5, a question arises proper 13 ](;ii2"'^^vas for the consideration of a jury, who are to say whether the the tiansac- , ,. 7 -^ ^ 7 J. • ± T r ^ T t\oi\ bond fides transaction was bonajiae, or a contrivance to deiraud credi- tors. Where an absolute bill of sale of chattels is executed by a debtor to his creditor, purporting to convey the pro- perty to the vendee immediately, yet the vendor is after its execution suffered to remain in possession, a very strong Presumption presumption of fraud arises: for, as Lord Coke remarks in ^' "■^^^'' r I > ' debtor remain of fraud, from debtor remain- the principal case, continuance in possession by the donor ing in posses- is a sign of a trust for his benefit. Accordingly, in Edwards w" bilTof^^° V. Harbeii, 2 T. R. 587, where a creditor took an absolute sale. bill of sale of the goods of his debtor, but agreed to leave them in his possession for a limited time, and in the mean- time the debtor died, whereupon the creditor took and sold the goods, he was held liable to be sued as executor de son tort for the debts of the deceased; see Slieai's v. Rogers, 3 B. & Ad. 363. Indeed, in Edwards v. Harhen, the court went so far as to say, " This has been argued as a case in which the want of possession is only evidence of fraud, and that it was not such a circumstance, per se, as makes the transaction fraudulent in point of law. That is the point 12 Former rule that absolute conveyance without de- livery of pos- session is in law fraudu- lent. Qualified by later decisions. we have considered, and we are all of opinion that if there be nothing hut the absolute com-eyance without the -possession, that, in point of law, is fraudulent ; " see Bamford v. Baron, 2 T. E. 594, n. ; Reed v. Blades, 5 Taunt. 212 ; Paget v. Perchard, 1 Esp. 205; Martin v. Podger, 2 W. Bl. 702. Nay, Lord Ellenborough thought that if the vendor remained in possession of the goods after the sale, the case was not bettered by the vendee's remaining in possession along with him ; and, therefore, in Wordall v. Smith, 1 Camp. 333, where an action was brought against a sheriff for a false return to a writ oifi. fa., sued out by the plaintiff against M., and returned by the sheriff nidla bona, and upon the trial it appeared that M. had, before the issuing of the fi. fa., assigned all his effects to a creditor, whose servant was immediately put into the house, and remained there conjointly with M., Lord Ellenborough directed a verdict for the plaintiff", saying: — " To defeat the execution there must have been a bond fide substantial change of possession. It is a mere mockery to put another person in to take possession jointly with the former owner of the goods. A concurrent possession with the assignor is colourable ; there must be an exclusive possession under the assignment, or it is fraudulent and void, as against creditors." However, though in Edwards v. Harben it was laid down in the express terms above stated that an absolute sale without delivery of possession was, in point of law, fraudu- lent, the tendency of the courts has since been to qualify that doctrine, and leave the whole circumstances of each case to a jury, bidding them decide whether the presump- tion of fraud deducible from the absence of a transmutation of possession shall prevail. And, indeed, it ought to be remarked, that even in Edwards v. Harben, the words of Buller, J., were, " If there be nothing but an absolute conveyance, withcjut the possession, that in point of law is fraudulent ; " by which his lordship may have intended that where there was nothing, i.e., no facts whatever appearing in the case, except the absolute conveyance and the non- delivery, tliatthen the inference of fraud would be so strong, that a jury ought not to resist it. But it is very different in cases where, althougli tlie conveyance is absolute, and the poss(!ssion lias not passed, still there are surrounding circumstances which show that a fraud may not have been intciudcd ; in such cases it cannot properly be said, that there is " noUdtig but an absolute conveyance without the twyne's case. 13 j)ossession." Therefore in Latimer v. Batson, 4 B. & C. 652, where the sheriff seized the Duke of Marlborough's goods and sold them to the judgment creditor, who sold them to the plaintiff, who put a man in possession, but allowed them to remain in the duke's mansion and be used by him Notoriety of as before, it was held that it was properly left to the jury to nelJltivVilre'- say whether the sale was a bond fide sale for money paid by sumption of the plaintiff; and that, if so, they should find a verdict for him. Here the goods had been seized by the sheriff, who is a public officer, and his seizure a public act, so that the transaction was accompanied with some notoriety, and as the secrecy of the transfer is a badge of fraud (see the principal case, and Mace v. Cammel, Lofft. 782), so is its notoriety always a strong circumstance to rebut the presumption there- of; see also Leonard v. Baker, 1 M. & S. 251 ; Watkins v. Birch, 4 Taunt. 823 ; Jezej^hy. higram, 8 Id. 838 ; Kidd v. Rawlinson, 2 B. & P. 59 ; Cole v. Davies, 1 Ld. Raym. 724 ; Macdona v. Swiney,, 8 Ir. C. L. R. 73. For a case of a sale by a man to liis wife, see Ramsay v. Margrett (1894) 2 Q. B. 18. It may, therefore, be safely laid down, that, under almost Fraud now a any circumstances, the question fraud or no fraud, is one ^Luestion tor for the consideration of the jury ; see the judgments in Martindale v. Booth, 3 B. & Ad. 498, where several cases establishing this point are cited; and Carr v. Burdiss, 5 Tyr. 316, per Parke, B. ; Dewey v. Bayntun, 6 East, 257; Reed V. Blades, 5 Taunt. 212 ; Lindon v. Sharp, 6 Man. & Gr. 898, per Tindal, C. J. ; Pennell v. Dawson, 18 C. B. 355 ; Darvill v. Terry, 6 H. & N. 807. In Biddulph v. Goold, 11 W. R. 882, an exaggeration in a bill of sale of the amount of the consideration given was held not to invalidate it, though the misstatement was intentional ; the jury finding that it was made innocently, though the making it was unbusinesslike. So, in Chancery there are no rules and is a ques- establishing particular circumstances to be indelible badges *\°^^ °^ ^^'^^ "^ . • 1 1 r Chancery. of fraud ; but the question of bona fides is there also one of fact; Hale v. Saloon Omnibus Co., 4 Drew. 492. The above observations apply to cases where the convey- ance is absolute, and there is no transmutation of possession, but where the conve^'ance is not absolute to take effect where trans- immadiately, as for instance, where it is by way of mort- ^^ction is a . , . .,, mortgaffe, ab- gage, and the mortgagee is not to take possession till a sence of default in payment of the mortgage money, there, as the change of [>os- ^ -^ _ o t^ J ' ' session no nature of the transaction does not call for any transmutation evidence of of possession, the absence of such transmutation seems to '^^^ ' 14 TWYNES CASE. Nor where possession of vendor is con- sistent with deed. Transfers not void under 13 Kliz. merely he- cause secret. I '.lit they may 1m! void iiixlcr the IJank- niptcy law, be no evidence of fraud. " We consulted," said Buller, J., in Edwards v. Harhen, " with all the judges, who are unani- mously of opinion, that unless possession accompanies and follows the deed, it is fraudulent and void; I lay stress on the words accompanies and follows, because I shall mention some cases where, though i3ossession was not delivered at the time, the conveyance was held not to be fraudulent." And then his lordship proceeded to point out the distinc- tion between " deeds, or bills of sale, which are to take place immediately, and those which are to take place at some future time: for, in the latter case, the possession continuing in the vendor till that future time, or till that condition is pei'formed, is consistent with the deed, and such possession comes within the rule as accompanying and following the deed ; " see B. N. P. 258 ; and Cadogan v. Kennett, Cowp. 436 ; Minshidl v. Lloyd, 2 M. & W. 450. This doctrine was affirmed and acted ujDon in Martindale v. Booth, 3 B. & Ad. 505, and in Reed v. Wilmot, 7 Bing. 577. See also per Tindal, C.J., Reeves v. Capper, 5 B. N. C. 140. Cases may arise of attempts to take advantage of this doctrine for the purposes of fraud, by introducing terms consistent with the continuing jDossession of the vendor into deeds really- intended not to operate as a bond fide transfer of property, but to enure for the vendee's protection. In such cases, however, the collusion, as soon as discovered, would be held to invalidate the deed as much as if the conveyance purported upon the face of it to be absolute, for the presence or absence of fraud depends on the motives of the party making the conveyance ; see Nunn v. Wilsniore, 8 T. R. 521, per Le Blanc, J. ; Riches v. Evans, 9 C. & P. 640. In cases of secret transfer of goods not impeachable on the ground of fraud, or want of consideration, the 13 Eliz. c. 5, left the creditor liable to incur a loss by trusting to the false appearance of ownership which the debtor's continuance in possession presented. In the event of his bankruptcy this defect in the law was remedied by later statittes, which vested in his assignees, all goods which by consent and permission of the true owner were in the debtor's possession, order, or disposition at the time of his bankruptcy and of whicli he was tlien the reputed owner. A ])rovision to this effect is contained in s. 44, sub-s. (iii), of the Bankruptcy Act, 1883. As to the doctrine of reputed ownership in P>!inknipt<'y, see th(> notes to JIov)! v. Baker, vol. ii., post. In general tlie secrecy of the transfer was not absolutely TWYNES CASE. 15 fatal to its validity until the Bills of Sale Act, 1854. Now, by the Bills of Sale Acts, 1878 and 1882, all bills of sale of personal chattels, as therein defined, if given " by way of security for the payment of money," are void in all cases unless made in the prescribed form and duly registered ; and, if not given by way of security for the payment of money, they are void, as against the trustee in bankruptcy, or execution creditor, of the grantor, as to all goods in the grantor's possession or apparent possession. The limits of this note do not permit a consideration of the decisions upon these Acts, which are fully dealt with in the text books upon this specific subject. There are some cases, that for instance of the sale of a ship at sea, in which an actual delivery being impossible, no presumption of fraud can possibly arise from the substitu- tion of one merely symbolical ; Atkinson v. Maling, 2 T. li. 472. In the case of British ships, notoriety of transfer is to a certain extent secured by the Merchant Shipping Act, 1894, which requires that when a registered ship, or any share in her, is disposed of to persons qualified to own British ships, the transfer must be made by bill of sale, which must contain a description of the ship, and must be registered according to the provisions of that Act (ss. 24 — 26). See StapUton v. Haymcn, 2 H. & C. 918. This does not apply to a wreck or hulk which has lost the character of a ship ; European Mail Co. v. P. d- 0. Co., 14 W. R. 843. It will be observed that the 13 Eliz. only declares the fraudulent conveyance to be void, "as against that person, his heirs, &c., who are, or might be in anywise disturbed, hindered, delayed, or defrauded." Such a conveyance is good as against the party executing it, Rohinson v. M'Donncl, 2 B. & Aid. 134 ; and also as against any other person privy and consenting to it, Steel v. Broicn, 1 Taunt. 381 ; Olliver V. King, 25 L. J. Ch. 427 ; and as against strangers other than creditors or bond fide purchasers for valuable considera- tion, Bessey v. Windham, 6 Q. B. 166 (see, as to the question of evidence raised in this case, WJiite v. Morris, 11 C. B. 1015). A person claiming under a yolnntavy j^ost- obit bond is a creditor who may impeach under 13 Eliz. a subsequent voluntary settlement, Adames v. Hallett, 6 Eq. 469. If before the conveyance is avoided the transferee assigns the goods to a bond fide purchaser for value, the transfer is valid, Moreicood v. S. Yorkshire R. Co., 3 H. & N. 798 ; and in the case of fraudulent settlements, purchasers for value or or under the bills of Sale Acts. Where actual delivery im- possible, fraud not presumed. Ships. 57 & 58 Vict, c. 60. Conveyances within 13 Eliz. good against maker, and privies, and strangers not creditors or purchasers for value. 16 TWYNES CASE. Sometimes not binding upon maker. Ground of decision in principal case. Want of hona fides. mortgagees, whether legal or equitable, of any interest created by the settlement are protected, provided that they took before the settlement had been avoided and without notice that it was fraudulent, Halifax Bank v. Gledhill, (1891) 1 Ch. 31. A sham transfer for the purpose of defrauding creditors has been held not to pass the property in the goods even as between the debtor and his confederate, Bo7ces V. Foster, 2 H. & N. 779. In Manning v. Gill, 13 Eq. 485, a voluntary settlement made by a lunatic in prison on a charge of felony was, after his acquittal, held void as between himself and the donee. Under what circumstances the maker of a voluntary settlement may himself avoid it, see Phillips v. Mullings, 7 Ch. 244; HalU. Hall, 8 Id. 430; Dutton V. Thovipson, 23 Ch. D. 278. In the principal case, Pierce, the grantor, was indebted to the grantee, Twyne, which debt would have been a sufficient consideration to support a honCi fide transfer of the goods, and the ground on which the court proceeded was not that there was no sufficient consideration to sustain a grant by Pierce to Twyne, but that the secrecy, the non -delivery, the clausidce inconsuetcB, &c., raised a presumption that the whole transaction was collusive and a juggle, and though pui-porting to be a sale, was, in reality, the creation of a trust for the benefit of Pierce ; to use their own words, " it was resolved that, notwithstanding here was a true debt due to Twyne, and a good consideration of the gift, yet it was not within the proviso of the said Act of 13 Eliz., by which it was provided that the said Act shall not extend to any estate or interest in lands, &c., goods or chattels, made on good consideration and hand fide ; for although it is on a true and good consideration, yet it is not hand fide, for no gift shall be deemed to be hand fide, within the said proviso, which is accompanied with any trust." In other words, although a debtor has a right to prefer one creditor to another, and by making a transfer of his property to one favoured claimant to defeat the other, provided he do so in an open manner, and without any further object than his act upon the face of it imports ; still the law will not allow a creditor to make use of his demand to shield his debtor, and, while he leaves him in statu quo by forbearing to enforce the assignment, to defeat the other creditors by insisthig upon it. Thus, (to illustrate this position by Lord Coke's woi-ds in tlie principal case,) "if a man Ix; indebted to five several persons in the several sums of 20/., and hath TWYNES CASE. 17 goods of the value of 20Z., and makes a gift of all his goods to one of them in satisfaction of his debt, l)iit there is a trust between tJiein that the donee shall deal favourably with him in regard of his poor estate, eitlier to permit the donor or some other person for him, or for his benefit, to use or have possession of them, and is contented that he shall pay him his debt when he is able ; this shall not be called hondjide Good con- within the said proviso, for the proviso saith on a i>'ood con- sideratum not ^ ' ^ _ o suihcieut. sideration and hondjide, so a good consideration doth not suffice if it be not also bond fide." There is, however, no doubt but that a debtor, provided Common law that the transaction is not invalidated as a fraudulent pre- "'''''° "^ 't''"" i to i)V(Her ference under the bankruptc}' law (see now the Bankruptcy particular Act, 1883, s. 48), may openly prefer a particular creditor to '^^'^^'^''^•'^• the rest ; and may transfer property to him or to a trustee in trust for him for the bond fide purpose of discharging his debt, even after the other creditors have brought actions,' or recovered judgments ; and such transfers are not void, under the 13 Eli/., as against the preferred creditors ; Hollmxl v. Anderson, 5 T. R. 235 ; Estioick v. Caillaud, Id. 420 ; Ex p. Elliott, 2 Ch. D. 104; Alton v. Harrison, 4 Ch. G22. In the last case Giffard, L.J., held that it was immaterial that the transfer was of the wdiole of the debtor's property, saying " if the deed is bond fide, i.e., if it is not a mere cloak for retaining a benefit to the grantor, it is a good deed under the 13 Eliz." See also Exp. Games, 12 Ch. D. 314, 324. Upon the same footing stands a transfer to a trustee for Trusts for the benefit of all the creditors, so soon as an}- one creditor creditors. has assented to it; Harland v. Binks, 15 Q. B. 713; or if the trustee is a creditor, as soon as he has had notice of it ; Siggers v. Evans, 5 E. & B. 367 ; see also Wolverhampton Hank V. Marston, 7 H. & N. 148 ; Evans v. Jones, 3 H, & C. 423 ; Johns v. James, 8 Ch. D. 744 ; Boldero v. L. dc Westminster Discount Co., 5 Ex. I). 47; Godfrey v. Poole, 18 App. Cas. 497, 502. The transfer must, however, be made for the bond fide purpose of discharging the creditors' claims ; and it Avill be void if its real intent is to delay, hinder, or defeat creditors; see Owen v. Body, 5 A. & E. 28 (explained in Hickman v. Cox, 8 C. B. 817, 3 C. B. N. S. 523, 9 Id. 47) ; Spencer v. Slater, 4 Q. B. D. 13 ; Ex p. Chaplin, 26 Ch. D. 319. The mere fact, how^ever, that the trustee is empowered to carry on the debtor's business for the purpose of winding it up does not render it S.L.C. VOL. I. 2 18 TWYNES CASE. Sale for good consideration to defeat ex- pected execu- tion valid. Assignment before con- viction for felony. Sepaiation deed. Marriage settlements. void ; Janes v. Whitbread, 11 C. B. 406 ; Coatcs v. Williams, 7 Exch. 205. It was broadly laid down in Wood v. Dixie, 7 Q. B. 892, that a bond fide sale of propei'ty for good consideration is not, either at common law or under the statute, void merely because it is made with intent to defeat an expected execu- tion ; and this was accepted as good law in Hale v. Saloon Omnibus Co., 4 Drew. 492, and Darrill v. Terry, 6 H. & N. 807 ; see also Golden v. Gillam, 20 Ch. D. 389, 396. Bott v. Smith, 21 Beav. 511, and Stokoe v. Coivan, 29 Id. 637, seem to be cases where the sale was not a bond fide sale for good consideration. Where the writ has been actually delivered to the sheriff, see s. 26 of Sale of Goods Act, 1893, which repeals 29 C. 2, c. 3, s. 16, and 19 & 20 Vict. c. 97, s. 1. Before forfeiture for felon}^ was abolished by the Forfei- ture Act, 1870, an assignment of all his effects in trust for his family by a man about to be tried for felony, was held to be within the 13 Eliz., and void against the crown ; Shaw V, Bran, 1 Stark. 3] 9 ; Jones v. Ashurst, Skinn. 357 ; Morewood v. Wilkes, 6 C. & P. 145 ; Panncefoofs Case, ante, p. 5 ; Saunders v. Wharton, 32 L. J. Ch. 224 ; see also R. V. Bridger, 1 M. & W. 145; Manning v. Gill, 13 Eq. 485 ; but an assignment before conviction was valid, if made for good consideration and bond, fide ; Chowne v. Baylis, 31 Beav. 351. A deed of separation which recited an agreement to sepa- rate in consequence of disputes, and \)\ which tlie husband granted an annuity to trustees for his wife's benefit, was held voluntary and void against creditors, in Clough v. Lambert, 10 Sim. 174. But bond fide separation deeds have been held not to be void under the 13 Eliz. when founded on valuable consideration ; e.g., when the trustees cove- nanted to indemnify the husband against the wife's debts, Stephens v. Olive, 2 Bro. Cli. C. 90 ; or when the wife gave up her right to a divorce, Nunn v. U^ilsmore, 8 T. R. 521, 529 ; see also Fitzer v. Fitzer, 2 Atk. 511 ; Worrall v. Jacob, 3 Mer. 256 ; Coirx v. Foster, 1 J. & H. 30. A marriage settlement is void under the 13 Eliz. where th(! intention of tlie parti(!s is to defraud or delay creditors, and the marriage is merely \r.\rt of a scheme in which husbiuid and wife are both ini])li('ated to i)rote('t the pro- perty from tlieir claims; (.'olutnbine v. PenJtall, 1 Sm, & Giflf. 228 ; Buhner v. Unnter, 8 Eq. 46 ; Re Pennington, 59 L. T. 774; see Kevan v. Cniiefnrd, 6 Ch. I). 29; Wenman v. twyne's case. 19 Lyon, G4 L. T. 88; Parnell v. Stcdman, C. & E. 3 53; and though the marriage he hojid fide and the settlor solvent at the date of tlie settlement, yet it seems that a general covenant in an ante-nuptial settlement made hy a trader to settle all after-acquired property upon his wife and children may be void as against his creditors under the Act ; Ex j>. Bolland, 17 Eq. 115. A deed of dissolution of partnership Dissolutions made at a time when the partners were insolvent, has been ot partner- . snip. held void against creditors as being mala fide ; Ex p. Mayoa, 4 De G. J. & S. 664, 668 ; and where an insolvent trader sold the stock in trade of his business partly in considera- tion of an annuity to his wife, if she survived him, she was, on his death, declared to be a trustee of the annuity for the creditors, the gift of the annuity being held to be void as against them ; Erench v. Erench, 6 De G. M. & G. 95 ; see Neale v. Day, 28 L. J. Ch. 45 ; Cornish v. Clark, 14 Eq. 184. As to the favour accorded in Chancery to family arrangeinents, see Penhall v. Elivin, 1 Sm. & Giff. 258 ; Golden v. Gillam, 20 Ch. D. 389, and p. 30, infra. A judgment and execution "contrived of malice " are Judgments within the same mischief and same rule as a gift or assign- tions^con-" ment. An early case on this subject is West v. Skipp, 1 trived of Ves. sen. 244, where it is laid down by Lord Hardwicke, that if a creditor seize the goods of his debtor and suffer them to remain long in his hands, this is evidence of fraud ; see Lovick v. Croivder, 8 B. & C. 132 ; Imray v. Magnay, 11 M. & W. 267; Hunt v. Hooper, 12 Id. 664. It has been said by Lord Mansfield, that " the principles of the common law, as now universally known and under- stood, are so strong against fraud in every shape, that the common law would have attained every end proposed by Stat. 13 Eliz. c. 5 ; " 2 Cowp. 434. The question, whether a conveyance be fraudulent under Transiersfiau- this statute, is different from the question, whether it be ig^EhV'are'^ fraudulent under the bankruptcy law. Any transfer which acts of liank- is fraudulent under the 13 Eliz. is also fraudulent and an ^1^**^^- act of bankruptcy under the bankruptcy law, and void as against the trustee in bankruptcy ; Doe v. Ball, 11 M. & W. 531 ; Billiter v. Young, 6 E. & B. 1, 17 ; see the Bankruptcy Act, 1883, s. 4 (1) (h). A discussion, however, of the effect of the Bankruptcy Act seems to be beyond the scope of this note. It has been laid down that a voluntary settlement or con- VoUmtary veyance is not void against creditors under 13 Eliz. unless Xen vo"!*^^' the maker was indebted at or about the time of making it ; under 13 Eliz. 20 twyne's case. HolcrafVs Case, T)yev, 294 {h) ; Stepliens v. Olive, 2 Bro. C. C. 90 ; Lush \. Wilhinson, 5 Ves. 384 ; where Lord Alvanley said that to invalidate a post-nuptial settlement, under 13 Ehz., the settlor must be in insolvent circumstances at the time ; see also Shears v. Rogers, 3 B. & Ad. 362 ; Battersbee V. Farnngton, 1 Swanst. 106 ; Russell v. Hammond, 1 Atk. 15 ; Middlecome v. Marloiv, 2 Atk. 519 ; Townshend v. Windham, 2 Yes. sen. 1. In later cases, however, the above doctrine has not been applied; Towjisendy. Westacott, 2 Beav. 340, 4 Id. 58; approved in Skarfx. Soulhy, 1 Mac. & G. 364 ; French v. French, 6 De G. M. & G. 95 ; Tarback y. Marhiry, 2 Vern. 510; Ilungerford v. Earle, Id. 261; Jenkyn v. Vaughan, 3 Drew. 419 ; Barling v. Bishopp, 29 Beav. 417 ; Ware v. Gardner, 7 Eq. 317. These cases show that it is not essential that there should be existing debts, or insolvency, at the time of the conveyance or settle- ment. In Thompson v. Webster, 4 Drew. 628, 632, Rule laid Kindersley, Y.-C, said : " It is not necessary, in order to set down tiy Km- ^^\^q q^ voluntarv deed, that the settlor should be in a state deisley. \ .-C. * , . . of insolvency. The principle now established is this : the language of the Act being that any conveyance of property is void against creditors if made with intent to defeat, hinder, or delay creditors, the Court is to decide in each particular case whether, on all the circumstances, it can come to the conclusion that the intention of the settlor in making the settlement was to defeat, hinder, or delay his creditors ; " and this statement of the law was accepted as correct by the Judicial Committee in Godfrey v. Poole, 13 App. Cas. 497. Subsc(iuent The voluntary settlement may be impeached by subsequent creditors. creditors as well as by creditors existing at the time it was made. "If a man makes it with a view to his being indebted at a future time, it is equally fraudulent and ought to be set aside ; " Stilcman v. Ashdoicn, 2 Atk. 477, per Lord Hardwicke. In Holmes v. Penney, 3 K. & J. 99, Wood, Y.-C, said : " where, in order to evade the statute, a person being considerably indebted makes a voluntary settlement, which would be void if impeached by those who were then his creditors, and afterwards pays them off, and a new set of creditors stand in their places, .... such a settlement would be void against the subsequent creditors, because it would bo a fraud on the statute." In Mackayy. Douglas, 14 Kq. 100, where a man about to embark in a hazardous trade made n voluntary settlement of the bulk of his property, Mulins, V.-C, set the settlement aside, liolding tliat it was TWYNES CASE. 21 sufficient to avoid a voluiitiiry settlement that the settlor at the time of the settlement contemplated a state of things which might result in insolvenc}^ although he was then solvent and continued so for some time afterwards. This case was approved and followed in the C. A. \n Exp.liuHaeV , 19 Ch. D. 588. In Ex p. Stephens, 3 Ch. 1). 807, a solvent man who was not then a trader made a voluntar}' settlement upon himself for life, determinable upon his bankruptcy, with further trusts for his wife and children. Thirteen years afterwards he embarked in trade and became bankrupt, and the settlement was set aside as fraudulent on its face. In Spirett v. Willoivs, 3 De G. J. & S. 293, a man made a i>ord Wcst- vohmtary settlement of property on his wife, reserving other \n^^pireUy, property sufficient to pay his existing debts ; but immediately tVillows. afterwards, instead of paying them, he realized everything that he had and denuded himself of it all. Lord Westbury, in setting aside the settlement at the suit of a creditor whose debt existed at the time of the settlement, said : "If the debt of the creditor, by whom the voluntary settlement is impeached, existed at the date of the settlement, and it is shown that the remedy of the creditor is defeated or delayed by the existence of the settlement, it is immaterial whether the debtor was or was not solvent after making the settlement. But if a voluntary settlement or deed of gift be impeached by subsequent creditors, whose debts had not been con- tracted at the date of the settlement, then it is necessary to show either that the settlor made the settlement with express intent to 'delay, hinder, or defraud creditors,' or that after the settlement the settlor had no sufficient means or reason- able expectations of being able to pay his then existing debts ; that is to say, was reduced to a state of insolvency, in which case the law infers that the settlement was made with intent to ' delay, hinder, or defraud creditors,' and is therefore fraudulent and void. It is obvious that the fact of a voluntary settlor retaining money enough to pay the debts which he owes at the time of making the settlement, but not actually paying them, cannot give a different character to the settlement, or take it out of the statute. It still remains a voluntary alienation or deed of gift, whereby, in the event, the remedies of creditors, whose debts existed at the time, are ' delayed, hindered, or defrauded.' " The above dicta were considered and commented on in Freeman v. Pope 9 Eq. 200, 5 Ch. 538, where a voluntary settlement was held void at thejnstance of a subsequent creditor. 23 TWYNES CASE. Inference of intent to de- feat creditors. Rule derivable from cases. Bankruptcy Act, 1883, " s. 47. Where del it incurred l)y ancestor. Conveyances ]>y heirs and executors. In Freeman v. Pope, supra, and other cases it was laid down that it is not " necessary to prove any actual intention to delay creditors, wliere the facts are such as to show that the necessary consequence of what was done was to delay them : " and that in such cases the intent must be inferred. This doctrine that the intent must be inferred was criticized in Ex p. Mercer, 17 Q. B. D. 290, where however the court carefully abstained from deciding that a voluntary settlement can never be void without an actual intention to defeat creditors. In that case it was held that the defeat or delay of creditors was not a necessary consequence of the settle- ment, and that there was no intent to defeat or delay them, and the settlement was therefore upheld. The true test derivable from the above cases appears to be, not whether there be any debt in existence which was due prior to the settlement and which in the result has remained unpaid, though the settlor continued solvent after making the settlement, but whether from all the circumstances the Court can infer that the settlement was made with the intent, actual or constructive, of delaying or defeating existing or sub- sequent creditors. Voluntary settlements made by persons who become bank- rupt are dealt with by s. 47 of the Bankruptcy Act, 1883. This Act makes every voluntary settlement made within two years of the settlor's bankruptcy void as against his trustee in bankruptcy ; and also every voluntary settlement made within ten years of his bankruptcy, unless the parties claim- ing under it prove that he was solvent without the aid of the settled property, and that his interest in the property passed immediately to the trustee of the settlement. It has been held to make no difference in the application of the 13 Eliz. that the debt was contracted, not by the party making the conveyance but by his ancestor from whom he derived the estate ; Ayharryy. Bodmgham, C'ro. Eliz. 5G ; GoocJis Case, 5 Hep. 60 ; see Richardson v. Ilorton, 7 Beav. 112 ; and as a fraudulent conveyance by the heir is void, so is one by an executor or administrator of the property of the deceased, and he is chargeable with what he so conveys as assets; Doev.Iudloics, 2 C. & J. 481 ; Be Troufihton, 71 L. T. 427. And property fraudulently conveyed by the deceased himself is, in cc^ntcinplation of law, assets for pay- ment of liis debts in the hands of his executors; Shears v. lUxjers, 3 \\. &i Ad. 303. By s. 3 of 13 Eliz., parties to the fraudulent conveyance, bond, &c., forfeit a year's value of TWYNE'S CASE. 2^ the lands or tenements conveyed, the whole value of the Penalties. chattels, and the amount of any covenous hond, half to the crown, and half to the parties aggrieved. The assignees of an insolvent are parties grieved within this section ; Parties Butcher v. Harrison, 4 B. & Ad. 129 ; the fraudulent con- ^''^'""^■ veyance being void as against them ; Doc v. Bali, 11 M. & W. 581. As a general rule, in the case of ordinary creditors, where Rule that the debtor is not dead or bankrupt, the 13 Eliz. operates q,|\ property onl}'' upon property capable of being taken in execution ; see capable of Sims V. Thomas, 12 A. & E. 536. Thus, before 1 & 2 Vict, jq executiou. c. 110, it is found laid down that copyholds are not, generally Copyholds, speaking, within 13 Kliz., on account of their not being subject to debts ; Mathews v. Fearer, 1 Cox, Ch. Ca. 278, and the same is stated to be the law, since that statute, in 1 Scriven on Copyholds, by Stalman, 146. It seems, how- ever, that the law is otherwise, since s. 11 of that statute has subjected copyholds, like other lands, to execution by elegit. With regard to choses in action, it was laid down by Choses in Lord Cottenham, in Norcutt v. Dodd, Cr. & Ph. 100, that a ''°^'°"- voluntary' assignment of a chose in action is not fraudulent as against creditors, within the 13 Eliz,, during the lifetime of the assignor, since it could not be reached b}' an execu- tion ; but that, after his death, it might be treated as fraudulent in a proceeding against the executor, because the chose in action would have been assets in his hands available towards paj'ment of the creditors. Pursuing this doctrine, it has been decided that a voluntary assignment of such choses in action as are seizable in execution by the provisions of 1 Vict. c. 110, are now subject to the operation of 13 Eliz. c. 5 ; Barrack v. M'Ctdlock, 3 K. & J. 110; Stokoe v. Coivan, 29 Beav. 637 ; and this view was, apparently, assumed to be correct in Freeman v. Pope, 9 Eq. 206, 5 Ch, 538, where Stokoe v. Cowan was cited, and in Taylor V. Coeneri, 1 Ch. D. 636. The effect of 13 FAiz. c. 5 upon the sheriff's duty was Duty of explained by the Court of Exch. in Imray v, Magnay, 11 ^^^^^ M. & W. 267 ; from which decision it follows that the sheriff is bound (at all events if he have notice of the fraud) to seize and sell, notwithstanding a fraudulent assignment or judgment and execution, and that if he do not, an action lies against him. That case was followed by Cliristopherson V. Burton, 3 Exch, 160, and recognised in Shattock v. Garden, 6 Exch. 7ii7. In Remmett v. Lawrence, 15 Q, B. 24 twyne's case. 1010, however, Lord Campbell expressed a wish to have the case oi Imniy v. Magnay reconsidered. Creditors' rights, under the 13 Eliz,, are legal rights, and their enforcement will not be barred b}- the equitable doc- trine of laches ; Re Maddever, 27 Cii. D. 523. 27 Eliz. c. 4. The statute 27 Eliz. c. 4, being in -pari materia with the Fraudulent jg Ei}^. c. 5, is referred to in the text, in illustration of the conveyance -, • ^ ^ ■ ^ ^ • ^ • /• i void as against doctrine thei^e laid down, respectnig the construction oi the purchasers. j^^ter statute. The 27 Eliz. (rendered perpetual by 30 Eliz. c. 18) was enacted for the protection of purchasers, as 13 Eliz. was for that of creditors. It enacts, s. 2, that every conveyance, grant, charge, lease, estate, incumbrance, and limitation of use of, in, or out of any lands, tenements, or other hereditaments whatsoever, made for the intent and purpose to defraud and deceive such person as shall pur- chase the same, or any rent, profit, or commodity, in or out of the same, shall be deemed and taken, only against that person and his heirs, successors, executors, administrators, and assigns, and against every one lawfully claiming under them, who shall so purchase the same for money or other good consideration, to be luholly void, frustrate, and of none effect. Under this Act it was held that not merely is a conveyance executed with express intention to defraud subsequent pur- chasers for value void as against them (see BurreVs Case, 6 Ptep. 72 ; Gooch's Case, 5 Rep. 60 ; and Standen v. Bidlock, Voluntary cited ante, p. G) ; but a voluntary conveyance is so likewise, V yanc . gygjj though the subsequent purchaser have notice of it ; Goodrifjht v. Moses, 2 W. Bl. 1011) ; Evelyn v. Templar, 2 Bro. Ch. C. 148 ; Buckle v. Mitchell, 18 Ves. 100; Doe v. Manniufj, 9 P^ast, 59 ; Corniick v. Trapaud, 6 Dowl. 60 ; for the very execution of a subsequent conveyance was con- sidered to sufficiently evince the fraudulent intent of the Voluntary former one. Now, however, it is provided by the Voluntary Art^iTo'r'^ Conveyances Act, 1893, that a voluntary conveyance of ia^^ r.7 Vict, lands, whenever made, if made bond fide and without any fraudulent intent, shall not "be deemed fraudulent or covinous within the meaning of 27 Eliz. c. 4 by reason of any subsequent ])urchase for value," or be defeated by a conveyance inude upon any such purchase (s. 2). This Act does not affect a purchase for value from the voluntary grantor made before the passing of the Act, 29th June, 1893 (8.3). The 27 Eliz. makes a conveyance executed with intent to 21. twyne's case. 35 defraud void only as against a purchaser for value. Such a 27 VAix. c. 4. conveyance is still good as against the grantor, who there- Conveyance fore cannot as against a purchaser without notice compel f°antor^"'^ specific performance of a subsequent contract to purchase for value ; SmitJi v. Garland, 2 Mer. 123; see B utter jidd V. Heath, 15 Beav. 408 ; or resist an action by a purchaser who has refused the title to recover his deposit, Clarke v. Willott, L. R. 7 Ex. 313. The purchaser, moreover, can compel specific performance of the contract ; Buckle v. Mit- chell, 18 Ves. IGO ; Rosher v. Williams, 20 Eq. 210. S. 5 of the 27 Eliz. enacts, that if any person shall make S. 5. any conveyance of lands, with a clause of revocation, at his Conveyance •11 T 1 ^1 1 (• 1 ''^itli power of Will and pleasure, oi such conveyance, and, alter such con- revocation. veyance, shall bargain, sell, grant, demise, convey, or charge the lands to any person for monej'^ or other good considera- tion, the first conve3^ance not being revoked, such first con- veyance, as against such bargainee, vendee, lessee, his heirs, successors, executors, administrators, and assigns, shall be void and of none efiect ; see the observations on this section in the principal case. A power to mortgage to any extent is Power to a power of revocation within the meaning of this section; "'"'' Tarhack v. Marhury, 2 Vern. 511 ; but a power to charge with a particular sum is, if no fraud be found, not so ; Jenkins v. Kemish, 1 Lev. 152. A power to lease for an}^ Power to number of years, with or without rent, is also a power ^^^'^' of revocation within this section ; for both that and the mortgage power enable the party exercising them in sub- stance to defeat the estate ; Lavender v. Blackstone, 2 Lev. 146. But a power to be exercised with the consent of third Power subject persons is not within this clause, unless, as in the case put 0^]!^°"^^" in the text, they be under the control of the settlor ; Butler V. Waterhouse, 2 Show. 46. A legal mortgagee is a purchaser within the 27 Eliz. ; who are Chapman v. Emery, Cowp. 279 ; Dolphin v. Aylward, L. R. l^'d'asers. 4 H. L. 486. So, in equity, is an equitable mortgagee by deposit ; see Lister v. Turner, 5 Hare, 281 ; Buckle v. Mitchell, supra ; and Rosher v. Williams, supra ; although the mere deposit does not make him a jjurchaser at law ; Kerrison v. iJorrien, 9 Bing. 76. And so is a lessee at a rack rent ; Goodright v. Moses, 2 W. Bl. 1019 ; or a person who releases a contested right in consideration of the con- veyance to him ; Hill v. Exeter, 2 Taunt. 69 ; or the jjur- chaser under a settlement made in consideration of an intended marriage ; Douglasse v. Waad, 1 Clia. Ca. 99 ; but 26 twyne's Cx\,SK. 27 Eliz. c. 4. not under a post-nuptial settlement, unless made in pur- suance of articles entered into before marriage ; Martin v. Seamore, 1 Clia. Ca. 170 ; for one voluntary conveyance cannot defeat another ; Clavering v. Clavering, 2 Vern. 473 ; and semble that the articles ought to be binding ones, Doe v. Rowe, 4 B. N. C. 737. A lessee without fine or rent is not a purchaser within the statute ; Upton v. Bassett, Cro. Eliz, 444; cited in Twyne's Case; nor is a judgment creditor, Beavan v. Oxford, 6 De G. M. & G. 507 ; see Benham v. Keane, 31 L. J. Ch. 129. Will is a vol- A will is looked on as a voluntary conveyance ; Villers v. nntary con- Beaumont, 1 Vern. 100 ; Brudenell v. Boughton, 2 Atk. 625 ; veyance. ' ' . . . Assic^nment of ^^® ^ Swanst. 411, 414, in notis. An assignment of lease- leaseholds not. holds to which a responsibility is attached is not ; Price v. Jenkins, 5 Ch. D. 619 ; Exp. Dohle, 26 W. R. 407 ; Harris V. Tubh, 42 Ch. D. 79 ; but see Lee v. Mathews, 6 L. R. Ir. 530; Shurmur v. Sedgwick, 24 Ch. D. 597. The principle of Pi-ice V. Jenkins has no application to cases arising under 13 Ehz. c. 5 ; Ridler v. Ridler, 22 Ch. D. 74. There may be cases in which, on account of the inadequacy of the price, a question may arise, whether a subsequent convey- Conveyance ance, though some value pass, be not in effect voluntary, tor inadequate .^^^ ^ mere trick for the purpose of invalidating a former one ; Doe v. James, 16 East, 212 ; see Persse v. Persse, 7 CI. & F. 279, and Owen v. Owen, 3 H. & C. 88. (July imr- It was decided by Doe v. Rusham, 17 Q. B. 723, and .hiiseiK hom Jjewis V. Recs, 3 K. & J. 132, in accordance with Parker v. j^iantor him- . i ■ • self protected. Carter, 4 Hare, 409, and not following the decision of the Irish Court of Exch. in Moff'ett v. Whittaker, Long. & T. 141, that a bond fide purchaser for value from the heir-at-law or devisee of the maker of a voluntary conve^'ance cannot im- peach it under the statute. And the rule laid down in Doe V. RusJiani equally excludes from the benefit of the statute a purchaser for value from a person claiming under a second voluntary conveyance or from any other person than the maker of the voluntary conveyance himself; God- frey V. Poole, 13 App. Cas. 497, 504. For a like reason, in Doe V. Lewis, 11 C. B. 1035, where a woman before her marriage had executed a voluntary conveyance of leaseholds, it was held that, upon her subsequent marriage; without any settlement, the leaseholds did not vest in her husband as a purchaser for value under 27 Eliz. ; for, though marriage is a viihiiihh; consideration, yet the husband taking merely by operation of law was not a purchaser within the statute. twyne's case. 27 In Doe V. Rusham, Doc v. Lewis, and Lewis v. Rees, it was laid down that the resohition in BurreVs Case, G Hep. 72, Rule in that "if a father makes a lease by fraud and covin of his (.xp^^iued "*" land to defraud others to whom he shall demise or sell it (and all fraudulent leases shall be so intended), and before the father sells or demises he dies, and the son, knowing or not knowing of the lease, sells the land on good considera- tion, the vendee shall avoid the lease by the act 27 Eliz.," is to be understood as applying only to a case of actual fraud ; and the case of Warhurton v. Loveland, 6 Bligh N. S. 30, was explained as having turned uj^on the construction of the Registr}^ Acts. In 27 Eliz. there is a proviso, s. 4, similar to that in 13 Bomtfide Eliz. s. 6, in favour of hand fide purdiasers for good con- sideration. Such are considered persons taking under in- struments made bond fide and for a valuable consideration ; Roe V. Mitton, 2 Wils. 356 ; or under ante-nuptial settle- ments ;. Kirk v. Clark, Pr. Cha. 275 ; or post-nuptial settle- ments made in consideration of ante-nuptial articles ; or of an additional portion ; Diindas v. Diitens, 2 Cox, 235 ; Jones v. Marsh, Forester, 63 ; Browne v. Jones, 1 Atk. 188 ; Spurgeon v. Collier, 1 Eden, 55 ; or in consideration of the wife's joining to destroy an ante-nuptial settlement ; Scott v. Bell, 2 Lev. 70 ; or of the husband giving up his interest in his wife's estate, Hewison v. Negus, 16 Beav. 594 ; Tees- dale V. Braithwaite, 5 Cli. D. 630 ; Shurinur v, Sedgwick, 24 Ch. D. 597 ; see Schreiber v. Dinkel, 54 L. T. 911 ; or of the wife giving up her equity to a settlement ; Re Home, 54 L. T. 301. As to the invalidity of a post-nuptial settle- ment of the wife's estate without such consideration, and of such a settlement when made in pursuance of a merely parol ante-nuptial agreement, see Butterfield v. Heath, 15 Beav. 408, and Warden v. Jones, 2 De G. & J. 76. Butterfield v. Heath was, however, questioned and distinguished by Jessel, M.R., in Re Foster, 6 Ch. D. 87, where the authori- ties are collected and reviewed ; see also Troivell v. Shen- ton, 8 Ch. D. 318; and Re Conlan's Estates, 29 L. R. Ir. 199. Persons who, between the voluntary settlement and the purchase, have acquired as purchasers under the volun- tary settlement any legal or even equitable right, are pur- chasers within s. 4, Prodgers v. Langluun, 1 Sid. 133. East India Co. v. Clavel, Pr. Ch. 377, seems opposed to Prodgers V. Langham, but the latter case was not referred to in the former, and it was approved of by Lord Eldon, George v. 28 TWYNES CASE. How far con- sideration of marriage will extend. Issue of former or subsequent marriage. Milbanke, 9 Ves. 193, and by Lord Kenjoii, Parr v. Eliason, 1 East, 95, where it is called " a very leading authority." See East India Co. v. Clavel, exjjlained in Payne v. Mortimer, 28 L. J. Ch. 716 ; and also Smartle v. Williams, 3 Lev. 387 ; Kirk V. Clark, Pr. Cha. 275 ; Brown v. Carter, 5 Ves. 862 ; George v. Milbanke, 9 Ves. 190 ; Meggison v. Foster, 2 Y. & C. C. C. 336; and Halifax Bank v. Gledhill, (1891) 1 Ch. 31, 37. There have been some cases in which the question has been how far the consideration of marriage will extend, and whether limitations in favour of remote objects may not be void as against subsequent purchasers ; see Je?ikins v. Kemishe, Hard. 395 ; White v. Stringer, 2 Lev. 105 ; Osgood V. Strode, 3 P. Wms. 245 ; Ball v. Burnford, Pr. in Cha. 113 ; Reeves v. Reeves, 9 Mod. 132 ; Hart v. Middlehurst, 3 Atk. 371. The issue of the marriage are always within the consideration. A limitation to the issue of the settlor by a second marriage was certified by the K. B. not to be voluntary ; Clayton v. Wilton, 3 Madd. 302 ; and, in Neiv- stead V. Searles, 1 Atk. 265, a settlement made by a widow, upon her re-marriage, on the children of her former marriage, was upheld by Lord Hardwicke against a subsequent mort- gagee. In Clarke v. Wright, 5 H. & N. 401, 6 Id. 849, and Gale V. Gale, 6 Ch. D. 144, these two cases were treated as bind- ing authorities by the Exch. Cham., and by Fry, J., and a provision in the marriage settlement of a woman's property for her illegitimate child, and a covenant by a widow, upon her second marriage, to convey property for the benefit of her children by her first marriage, were held not to be voluntary. In Price v. Jenkins, 4 Ch. D. 483, Hall, V.-C, held that a son of the intended husband by a fonner mar- riage was a volunteer; and the same was decided by Kay, J., in Re Cameron, 37 Ch. D. 32. Lord Selborne, in the Scotch case, Mackie v. Herhcrtson, 9 App. Cns. 303, commented upon the earlier cases and explained the decision in New- steads. Searles; and in De Mestre v. West, (1891) A. C. 264, Lord Selborne, in delivering the judgment of the Privy Council, expressly dissented from the decision in Clarke v. Wright, and said that Clayton v. Wilton and Newstead v. Searles were decided upon the principle, adopted in Mackie V. Herhcrtson, that " where the limitations which were not within tlie marriage consideration were covered by those which were, so tliat those which were within the marriage consideration could not take effect in the form and manner provid(!d by the instrument without also giving effect to the TWYNKS CASE. 29 others," the former limitations couhl not be defeated. lu A.-G. V. Jacohs-Smlth, (1895) 1 Q. B. 472, Wright and Collins, JJ., treated NewsUiad v. Scarles as still an autho- rity, that when a widow, upon her remarriage, makes a settlement on children of her former marriage, such children are not volunteers, but their decision was reversed in the C. A., W. N., 1895, p. 85. Limitations in favour of collaterals are, as a general rule, voluntary ; Stdckpoole v. Stackpoole, 4 Dru. & War. 320 ; Cotter ell \. Homer, 13 Sim. 506; Smithy. Cherrill, 4Eq. 390 ; Wollaston v. Tribe, 9 Eq. 44. In Heape v. Tonge, 9 Hare, 104, Turner, V.-C, laid it down, that limitations in favour of collaterals are to be supported, if there be any part}^ to the settlement who purchases on their behalf: and he referred to the example put by Lord Eldon in Pulvertoft v. Pulvertoft, 18 Ves. 92, where he said, " In the case for instance of a father, tenant for life, with remainder to his son in tail, they may agree upon the marriage of the son to settle not only on his issue, but upon the brothers and uncles of that son ; and the question would be, whether they, though not within the consideration of the marriage, are not within the con- tract between the father and the son, both having a right to insist upon a provident provision for uncles, brothers, sisters, and other relations, and to say to each other, I will not agree unless you will so settle." Limitations, even though void as against subsequent purchasers, may be binding as against the settlor and his heirs ; see Davenport v. Bishopp, 2 Y. & C. 451 ; per Kay, J., Re Cameron, supra; unless the settlement is otherwise invalid ; see Wollaston v. Tribe, 9 Eq. 44. The title of a purchaser for valuable consideration, from a person who has obtained a conveyance by fraud, of which he, however, has no notice, falls within the above proviso, and cannot be impeached ; Doe v. Martyr, 1 B. & P. N. E. 332. The existence of a valuable consideration, though it should differ from the consideration specified in the instru- ment, may be proved, in order to rebut fraud and establish a right to the benefit of the proviso ; thus, where a deed purported to be in consideration of love and affection, evidence was allowed that the grantor was under a bond to support the objects of it ; Gale v. Williamsoti, 8 M. & W. 405 ; see Pott v. Todkunter, 2 Coll. C. C. 76. The adequacy of the consideration is an important ele- ment in forming a conclusion as to the bona fides of the Collaterals. Puicliaser from fraudu- lent jrraiitee. Actual con- sideration may be proved, to reliut fraud. Adequacy of consideration. ao TWYNE S CASE. Stat. 27 Eliz. more bene- ficial than Stat. 13 Eliz. Copyholds are within act. Anil efjuitahlc interests. rersonalty not, J I or gifts to <:haritics. transaction ; see Doe v. James, 16 East, 212. In no case, however, can inadequacy of consideration alone be said, as a proposition of law, conclusivel}^ to establish mala fides. The relation between the parties, and other circumstances, may explain away its inimd facie effect. For instance, a conveyance in a deed, by way of family arrangement, part of the inducement to execute which is obviously natural love and affection, may be sustained by any valuable considera- tion not very inadequate ; Persse v. Persse, 7 CI. & F. 279 : see Pott V. Todhunter, 2 Coll. C. C. 76; Parker v. Carter, 4 Hare, 409 ; Bayspoole v. Collins, 6 Ch. 228 ; Townend v. Toker, 1 Id. 446 ; Heapex. Tonge, 9 Hare, 90, where an amicable settlement of a supposed claim under a lost will was upheld. The joinder of a necessary party in a conveyance is not always a sufficient consideration. It has been held not to be so where a limitation was made, not for his benefit or at his desire, nor in pursuance of an}' contract of his ; Doe v. Rolfe, 8 A. & E. 650. The 27 Eliz. was, perhaps, a more beneficial enactment than the 13 Eliz., for it has been laid down, that at common law no fraud was remedied which should defeat an after purchase, but only that which was committed to defraud a former interest; Cro. Eliz. 445, and ante, p. 8 ; yet there is a dictum of Lord Mansfield's to the contrary, in Cadogan V. Kennett, Cowp. 434. The words of the act, it will be observed, are very large and comprehensive. They include every " conveyance, grant, charge, lease, estate, and hmita- tion of use." Therefore, it was held that the uses declared on a recovery might be void as against a subsequent i)ur- chaser, though the recovery itself remained valid and destroyed an estate tail for his benefit, Doc v. Bolfe, 8 A. & E. 650; Tarleton v. Liddell, 17 Q. B. 390. (Jopyholds are within this act, Doe v. Bottriell, 5 B. & Ad. 131 ; Currie V. Nind, 1 Myl. & Cr. 17 ; Doe v. Bolfe, 8 A. & E. 650. So are equitable interests. Barton v. Vanhcythmjscn, 11 Hare, 126. But not personal property, Jones v. Croucher, 1 Sim. & S. 315, and Sugd. V. & P., 14th ed., 719; see Halifax Bank v. Gledhill, (1891) 1 Ch. 31, 39. There are also cases to whicli, from their nature, as im- poi-tivig the absence of valuable consideration, the 27 Eliz. c. '1, does not, it seems, extend ; for instance, a voluntiu-y (!ii(lc)\viii(iit of a cliarity is not dd'eated b}' a subsequent conveyance foi- valuabl(! consideration; Neivcastle v. A.-G., 12 CI. iV F. 402; Ramsay v. Gilchrist, (1892) A. C. 412. DUMPOR'S CASE. EIL. 45 ELIZ.—IN THE KING'S BENCH. [reported 4 COKE, 119.] When a condition not to alien without licence is determined by the first Licence granted. — Apportionment of conditions (a). In trespass between Dumpor and Symms, upon the general issue the jurors gave a special verdict to this effect : the Presi- dent and Scholars of the College of Corpus Christi, in Oxford, made a lease for years, in anno 10 Eliz., of the land now in question, to one Bolde, proviso that the lessee or his assigns should not alien the premises to any person or persons, without the special licence of the lessors. And afterwards the lessors by their deed, anno 13 Eliz., licensed the lessee to alien, or demise the land, or any part of it, to any person or persons qiubuscunque. And afterwards, anno 15 Eliz., the lessee assigned the term to one Tubbe, who by his last will devised it to his son, and b}^ the same will made his son executor, and died. The son entered generally, and the testator was not indebted to any person, and afterwards the son died intestate, and the ordinary committed administration to one who assigned the term to the defendant. The President and Scholars, by warrant of attorney, entered for the condition broken, and made a lease to the plaintiff for 21 years, who entered upon the defendant, who re-entered, upon which re-entry this action of trespass was brought ; and tliat upon the lease made to Bolde, the yearly rent of 33s. M. was reserved, and upon the lease to the plaintiff, the yearly rent of 22s. was only reserved. And the jurors prayed upon all this matter the advice and discretion of the Court, and upon this verdict judgment was given against the plaintiff. And in this case divers points were debated and resolved; 1st. That the (a) The rule laid down in this case far as relates to conditions contained iu was abolished by 22 & 23 Vict. c. 35, so leases. See post in notd. 32 DUMPOR S CASE. alienation by licence to Tuhhe, had (h) determined the condition, so that no alienation which he might afterwards make could break the proviso, or give cause of entry to the lessors, for the lessors could not dispense with an alienation for one time, and that the same estate should remain subject to the proviso after. And although the proviso be, that the lessee or his assigns shall not alien, yet when the lessors license the lessee to alien, they shall never defeat, by force of the said proviso, the term which is absolutely aliened by their licence, inasmuch as the assignee has the same term which was assigned by their assent : so if the lessors dispense with one alienation, they thereby dispense with all alienations after ; for inasmuch as by force of the lessor's licence, and of the lessee's assignment, the estate and interest of Tubbe was absolute, it is not possible that his assignee who has his estate and interest shall be subject to the first condition : and as the dispensation of one alienation is the dispensation of all others, so it is as to the persons, for if the lessor dispense with one, all the others are at liberty. And therefore it was adjudged, Trin. 28 Eliz., Eot. 256, in Com Banco inter Leeds (c) and Compton, that where the Lord Stafford made a lease to three, upon condition that they or any of them should not alien without the assent of the lessor, and afterwards one alienated by his assent, and afterwards the other two without licence, and it was adjudged that in this case the condition being determined as to one person (by the licence of the lessor) was determined in all. And {d) Popham, Chief Justice, denied the case in 16 Eliz., Dyer {e), 334: that if a man leases land upon condition that he sha.l not alien the land, or any part of it, without the assent of the lessor, and afterwards he aliens part with the assent of the lessor, that he cannot alien the residue without the assent of the lessor : and conceived, that is not law, for he said the condition could not bo divided or (/) appointed by the act of the parties ; and in the same case, as to parcel whicli was aliened by the assent of the lessor, the condition is {h) 1 Itoll. lie]). 70, :',90. 1 Jtoll. \-l->, 291. '171. '2 UhImI. 2U]. Cio. Jac. yiJ«. :! {d) Stylus, 317. Co., 64, J'liiuiant's case. 3 Ed. 6, Dyer, (<•) \'>y. ^34, pi. 32. Cro. El. 816. 66 a. Stylus, 3;31. Moor, 205. (c) 1 Roll. 472. Cm. El. 81(). CchII,. (/) Co. Lit. 21;. a. m. Noy, ;52. 4 Leon. ;jS. 2 I'.ulMti. DUMPORS CASE. 33 determined ; for although the lessee aHens any part of the residue, the lessor shall not enter into the part aliened by licence, and, therefore, the condition being determined in part, is determined in all. And therefore, the Chief Justice said, he thought the said case was falsely printed, for he held clearly that it was not law. Nota, reader, PascJue 14 Eliz. Eot. 1015, in Com' Banco, that where the lease was made by deed indented for 21 years of three (r/) manors. A., B., C, rendering rent, for A. 6^., for B. 51., for C. 101. , to be paid in a place out of the land, with a condition of re-entry into all the three manors, for default of payment of the said rents, or any of them, and after- wards the lessor, by deed indented and enrolled, bargained and sold the reversion of one house and forty acres of land, parcel of the manor of A., to one of his heirs, and afterwards, by another deed indented and enrolled, bargained and sold all the residue to anothej." and his heirs ; and if the second bargainee should enter for the condition broken or not, was the question : and it was adjudged, that he should not enter for the (/i) condition broken, because the condition, being entire, could not he apportioned hy the act of the jiartics, but by the severance of part of the reversion it is destroyed in all. But it teas agreed, that a condition may he (i) apportioned in two cases, 1. By act in law. 2. By act and irrong of the lessee. By act in law, as if a man, seised of two acres, the one in fee, and the other in (k) borough English, has issue two sons, and leases both acres for life or years, rendering rent with condition ; the lessor dies ; in this case by this descent, which is an act in law, Wie reversion, rent, and condition are divided. 2. By act and wrong of the lessee, as if the lessee makes a feoffment of part, or commits waste (1) in part, and the lessor enters for the forfeiture, or recovers the place wasted, there, the rent and condition shall be apportioned, for none shall take advantage of his own wrong, and the lessor shall not be prejudiced by the wrong of the lessee : and the Lord Dyer, then Chief Justice of the (g) Dyer, 308, 309, pi. 75. 5 Co. s. 12, as to apportionment in tlie case of 55 b. Moor, 97, 98. By 22 & 23 Vict. leases made after that Act. c. 35, s. 3, where the reversion on a lease (A) Co. Lit. 215 a. Cro. Jac. 390. is severed and the rent is legally appor- 5 Co. 55 b. tioned, the assignee of each part of the (i) 3 Bulstr. 154. Co. Lit. 215 a. reversion is entitled in respect of the (^O 1 Rol. Rep. 331. Co. Lit. 215 a. apportioned rent to the benefit of the See Doe v. Lciuis, 5 A. & E. 277. condition. And see 44 & 45 Vict. c. 41, (I) 1 Rol. Rep. 331. Moor, 203. S.L.C. — VOL. I. 3 34 dumpor's case. Common Pleas, in the same case, said, that he who enters for a condition broken, ought to he in of the same estate ivhich he had at the time of the condition created, and that he cannot have, when he has departed with the reversion of part : and with that reason agrees Litt. 80 b. And vide 4 & 5 Ph. & Mar., D3^er (/n), 152, where a proviso in an indenture of lease was that the lessee, his executors or assigns, should not alien to any person without licence of the lessor, but only to one of the sons of the lessee ; the lessee died ; his executors assigned it over to one of his sons ; it is held by Stamford and Catlyn, that the son might alien to whom he pleased, without licence {n), for the condition, as to the son, was determined : which agrees with the resolution of the principal point in the case at bar. 2. It w^as resolved, that the statutes of 13 Eliz. cap. 10, and 18 Eliz. cap. 11, concerning leases made by Deans and Chapters, Colleges, and other ecclesi- astical persons, are (o) general laws whereof the court ought to take knowledge, although they are not found by the jurors : and so it was resolved between Claypole and Carter in a writ of error in the King's Bench. (m) Dy, 152, pi. 7. Co. Lit. 215 a. (o) 2 Roll. 465. Yelv. 106. Doct. Cro. Eliz. 757, 816. pi. 337, 338. Noy, 124. 2 Brownl. 208. {n) Qucere, see Lloyd v. Crispe, 5 Cro. El. 816. Moor, 593. 1 Leou. 306, Taunt. 249, 'post in notd, p. 36. 307. The derision This decision was acted on for a long time, although lolloweil in . o ' t) later cases more than once disapproved of. In Doe v. Bliss, 4 Taunt. V^c?f sV^ 735, Mansfield, C. J., said: "The profession have always 23 k 24 Vict. Wondered at Dumpor's Case, but it has been law so many '■• ^^- centuries, that we cannot now reverse it." In Brummell v. Macpherson, 14 Ves. 173, Lord Eldon said : " Though Dumjwrs Case always struck me as extraordinary, it is the law of the land." Accordingly it was affirmed by many subsequent decisions, and was even carried further, for it was lield that whether the licence to assign was general, as in the principal case, or particular as " to one particular person subject to the performance of the covenants in the original lease," still the condition was gone, and the assignee might assign witliout licence ; Brummell v. Mac- pherson, 14 Ves. 173. At length, however, the legislature interfered, and tliis rule has, by the operation of 22 & 23 dl'mpor's case. 35 Vict. c. 35, and 23 & 24 Vict. c. 38, ceased to be law, so far as relates to conditions in leases, and to licences and waivers of such conditions occurring since those Acts. Under 22 & 23 Vict. c. 35, s. 1, a licence given to a Law of Pro- lessee or his assigns to do an act which, without such P^^rty Amend- . . . . lueut Act, licence, would create a forfeiture, or give a right to re-enter, i859. under a condition or power reserved in a lease, whether Effect of granted before or after the Act, unless otherwise expressed, leaseTe-"^ ^^ extends only to the permission actually given, or the specific stricted. breach of a proviso or covenant made or to be made, or to ^- ^• the act specifically authorized ; and, unless otherwise ex- pressed, does not prevent proceedings for any subsequent breach ; and all rights under covenants, and powers of forfeiture and re-entry, remain effectual in respect of any subsequent breach of covenant or condition not specifically authorized by the licence. By s. 2, where, in any such lease, there is a right of re- S. 2. entry on assigning, or sub-letting, or doing any specified act, without licence, a licence to one of several co-lessees to assign or sub-let his share or interest or to do any such act, or a licence to assign, or sub-let, or do any such act, in i-espect of only part of the property, does not destroy the I'iglit of re-entry, on breach by any other co-lessee, or by the lessee of the rest of the property, over and in respect of the shares, interests, or remaining property, not the sub- ject of such licence. That Act did not interfere with the effect of Dumpor's Law of Pro- Case upon questions of Avaiver. By s. 6, however, of 23 & ment Act"^ 24 Vict. c. 38, any actual waiver by the lessor of the benefit i860, of any covenant or condition in a lease, in an}^ one particular Effect of instance, extends only to the breach to which it specially re- restricted, lates, and is not a general waiver of the benefit of such cove- nant or condition, unless an intention to that effect appears. Though these enactments have destroyed the authority of Dwmpoi-'s Case itself, this note, which deals cliiefiy with the doctrine of waiver of forfeiture, a doctrine still of practical importance, is retained in the present edition. At common law the licence, in order to put an end to the Mode of Ti- IT 1 Tx- licensing condition, must have been such a licence as the condition required at contemplated, for where the condition was not to assign common law. without licence in ivriting, a parol licence was no dispensa- tion ; Roe V. Harrison, 2 T. 11. 425 ; Macher v. Foundling Hospital, 1 V. & B. 191 ; BicJutrdson v. Evans, 3 Madd. 218 ; though it is said that if such parol licence were used as 3 2 86 DUMPORS CASE. Waiver of forfeiture by acceptance of rent or otlier act. a snare, equity would relieve, liichardson v. Evans, supra. It seems, too, that if the condition was not in general restraint of assignment, but permitted the lessee to assign in one particular way, e.g. by will, an assignee to whom the lease had been assigned in the permitted way could not assign in an}^ other ; " The ground of Dumpor's Case was this : the proviso was that the lessee or his assigns should not alien the premises to any person or persons without the special licence of the lessors ; the lease was therefore to be void if any assignment was made. And there the court was of opinion that if the condition was once dispensed with, it was whoU}^ dispensed with, because the provision for making void must exist entii'e, or not exist at all. But here is an exception out of the original restriction to aUenate, so that in the alienation by will made by the lessees there was nothing to licence ; " Lloyd v. Crispe, 5 Taunt. 249, 253, per Gibbs, J. Also, by defeasance pro- perly framed to revive the condition, a licence to assign might virtually be limited to the particular assignment ; see 3 Jarman's Conv. by Sweet, 685 ; but it was intimated by Gibbs, C. J., that there would have been great difficulty in giving that effect to any merely restrictive words in the licence ; Mason v. Corder, 7 Taunt. 9, 11 note. Although there has been a breach of covenant or condi- tion which operates as a forfeiture of the term, still the lessor may, by acceptance of rent or other acts, waive his right to take advantage of it. Acceptance of rent or other act does not operate as a waiver unless the lessor has, at the time, knowledge of the forfeiture. It may, however, appear from other circumstances that the rent was accepted with an intention of continuing the tenancy notwithstand- ing any forfeiture that might have occurred. In Goodright V. Davids, 2 Cowp. 803, the lease contained a covenant not to underlet without licence, and a power of re-entr^^ in case of breach of the covenants ; the lessee underlet various parts of the premises, but the lessor knew of it, and received rent afterwards. " The case," said Lord Mansfield, " is extremely clear. To construe this acceptance of rent, due since the condition broken, a waiver of the forfeiture, is to construe it according to the intention of the parties. Upon the breach of the condition the landlord had a right to enter. He had full notice of the breach, but does not take advan- tage of it, but accepts rent subsequent!}' accrued. That shows he meant that the lease should continue. Forfeitures dumpor's case. 37 are not favoured in law ; and when a forfeiture is once waived, the court will not assist it ; " see Roe v. Harrison, 2 T. E. 425; Doc v. Birch, 1 M. & W. 402; Croft v. Lumlcii, 5 E. & B. 648, 6 H. L. C. 672; Walrond v. Hawkins, L. R. 10 C. P. 342. Other acts of the lessor, Waiver by besides acceptance of rent, which show an intention on his sides accept-' part to treat the lease as continuing, may operate as a ance of rent, waiver of a forfeiture. Any unequivocal act done by a lessor, after forfeiture incurred, by which he acknowledges that the tenancy existed after the forfeiture was incurred, will operate as such waiver. For instance : an assignment of a leasehold interest, expressed to be subject to under- leases in respect of which a forfeiture had been incurred ; Hunt V. Bishoji, 8 Exch. 675 ; Hunt v. Remnant, 9 Id. 635 : a receipt for rent due before the forfeiture, but given afterwards, describing the tenant as tenant at the date of the receipt; Green's Case, 1 Cro. Eliz. 3, cited in 1 M. & W. 406 : a declaration in an action for damages for breach of covenant that the breach occurred during the term ; Pellatt V. Boosey, 31 L. J. C. P. 281 : negotiations, or an agreement, for a new lease on the expii'ation of the old lease of which a forfeiture had been incurred ; Ward v. Day, 4 B. & S. 337, 5 Id. 359 ; Doe v. Civrwood, 1 H. & W. 140 : giving a special notice to repair under a sj)ecial covenant, is a waiver of any forfeiture for breaches up to the expiration of the notice ; Doe v. Meux, 4 B. & C. 606 ; Doe V. Lewis, 5 A. & E. 277 : but a general notice is not; Goatley v. Paine, 2 Camp. 520 ; Feiv v. Perkins, L. R. 2 Ex. 92 : advising a person to purchase the term from the tenant after a forfeiture incurred is a waiver; Doe v. Eykins, 1 C. & P. 154 : and, perhaps, a notice to quit is a waiver of any forfeiture incurred before its expiration ; Gregory v. Wilson, 9 Hare, 683, 688 : the pleadings in an action, claiming possession, and asking for an injunction to restrain breaches generally, and alleging continued willing- ness to grant a lease in pursuance of the agreement alleged to have been determined by forfeiture, were held to be a waiver; Evans v. Davis, 10 Ch. D. 747; though in Tole- man v. Porthury, L. R. 6 Q. B. 245, 7 Id. 344, it was held that particulars of breaches given in an action of ejectment could not amount to a waiver; see also Victoria, A.-G. of, v. Ettershank, L. R. 6 P. C. 354. It is conceived that the mere receipt of subsequent rent Receipt of does not, of its own proper force, operate as a waiver of a ^^^^ ^^ ^P' 38 DUMPORS CASE. election to continue lease. Election cannot be retracted. Inference of election may be rebutted. Receipt of rent under protest. Croft V. Lumley. Solvitur in modo solvcntis. forfeiture. It is only evidence of the election of the lessor to retain the reversion and its incidents, instead of taking possession of the land; see Croft v. Lumley, 6 H. L. C. 705, 713, per Bramwell, B., and Crompton, J. ; and, as an election once made and expressed cannot he retracted, the receipt of subsequent rent, as such, without more, binds the landlord by proving an election — quod semel placuit in elec- tionihus amplius dispUcere non potest, Co. Litt. 146 a; see Ward V. Day, 4 B. & S. 337. The amount of the rent reserved by a lease may be received under circumstances showing it to be paid and accepted merely as compensation for the use of the land and not with the intention of setting up the lease, in which case the receipt of the money does not amount to a waiver of the forfeiture ; see Doe v. Batten, 1 Cowp. 243. So also the rent due under the lease may be paid and received upon the express terms that the receipt is not to operate as a waiver of any previous forfeiture. " Where money is paid and received as rent under a lease, a mere protest that it is accepted conditionally and without prejudice to the right to insist upon a prior forfei- ture cannot countervail the fact of such receipt," and prevent such receipt of rent operating as a waiver of the forfeiture ; Davenport v. The Queen, 3 App. Cas. 115 ; see also- Strong v. Stringer, 61 L. T. 470. If the lessor receives money which is tendered to him as rent, it seems that that is a receipt of rent by him which will operate as a waiver, although, both before and after the tender and upon taking the money, he unequivocally expresses his intention to accept the mone}'^, not as rent, but only as compensation for the use of the land. This was decided in Croft v. Lumley, in the Queen's Bench, 5 E. & B. 648. The court in coming to that decision acted upon the rule that, when money is paid, it must be applied according to the expressed will of the payer, and not of the receiver — solritur in modo solventis ; and they applied to the landlord's conduct the rule non quod dictu7n sed quod factum est injure inspicitur, saying, " wliatever words he might utter when he took up the money and carried it away, in point of law he received it as rent." The judgment in that case was affirmed in the Exch. Cham, and in the H. L. (5 E. c^ B. 682 ; 6 II. L. C. 672), but only on the ground that there had been no for- feiture. J 11 tlie 11. J J. the (picstioii of waiver was submitted, with others, to the judges, and eiglit out of nine were of opinion that, if there had been a forfeiture, it had been DUMPOR S CASE. 39 waived by the receipt of the money which had been offered as rent, and as rent only. Of the two peers who decided tlie case Lord Cranworth gave no opinion upon tlie question of waiver, but Lord Wensleydale said that he thought that it was a question of fact, and not of law, whether the trans- action amounted to a pa3'ment and receipt of rent, and that he was led to suppose that it did not, as the money was not demanded back when the lessor declared that he would only take it as compensation. His lordship appeared to be of opinion that the rule solvitur in modo solvcntis is only applicable to the case of a payment in respect of one of two debts. If, therefore, money is tendered as rent, but the lessor is unwilling to receive it as rent, his only safe course appears to be to refuse it; Croft v. Lundcy, 5 E. & 13. 648. The proper question to be left to the jury in such cases Question is ,11,1,11 • 1 J. • whether rent appears to be whether the lessor received rent eu nomine ^^^^g received as rent due under the lease; see Doc v. Pritcliard, 5 B. as rent. & Ad«. 765, 776; and Davenport v. The Queen, supra. If the lessor received rent as rent due under the lease, that waives any forfeiture incurred before the rent became due. If the lessor has received subsequent rent as rent, that What for- operates as a waiver of an}^ forfeiture incurred up to the time ^vaived by- such rent became due ; Pellatt v. Boosey, 31 L. J. C. P. 281 ; acceptance Price V. Wonvood, 4 H. & N. 512; Davenport y. Tlie Queen, 3 Ajip. Cas. 115. So also does suing for rent accrued due since forfeiture incurred; Roe v. MinsJiall, B. N. P. 96c; Dendy v. Nicholl, 4 C. B. N. S. 376 ; or making an unquali- fied demand for such rent; Doe v. Birch, 1 M. & W. 408, where Parke, B., said: "I think an absolute unqualified demand of the rent by a person having sufficient authorit}- would have amounted to a waiver of the forfeiture ; " Blyth V. Dennett, 13 C. B. 178 ; Dendy v. Nicholl, supra ; Strong V. Stringer, 61 L. T. 470 ; but acceptance of rent after it becomes due does not waive a forfeiture incurred by non- payment of that rent when it became due ; Green's Case, 1 Cro. Eliz. 3. Although acceptance of rent falling due after a forfeiture Acceptance of incurred operates as a waiver, yet acceptance after forfeiture f^j.^ fo,feitui-e of rent accrued due before the forfeiture will not do so; is no waiver. Green's Case, supra ; Marsh v. Curteys, 2 Cro. Eliz. 528 ; Price V. Wonvood, supra ; Cronin v. Rogers, 1 C. & E. 348: for there is no inconsistency in accepting rent accrued due before the supposed determination of the estate ; Ward v. Day, 4 B. & S. 337, 352, _per Crompton, J. DQMPORS CASE. A distress for rent operates as a waiver of any forfeiture incurred up to the time it is made, for it acknowledges a tenancy subsisting at the time of the distress ; Broiuning v. Beston, 1 Plowd. 130, 133 ; Doe v. Johnson, 1 Stark. 411 ; Wardy. Day, 4 B. & S. 337; Doe v. Williams, 7 C. & P. 322 ; Doe v. Peck, 1 B. & Ad. 428 ; Cotesworth v. Spokes, 10 C. B. N. S. 103 ; Griimvood v. Moss, L. E. 7 C. P. 360, 363. The 8 Anne, c. 14, which extends the right to distrain for six months after the determination of the lease, cannot, it is conceived, affect the question of waiver ; it has been said that this statute does not apply at all when the deter- mination of the lease is for forfeiture ; Doc v. Williams, supra ; Grimwood v. Moss, supra ; and, even if the statute does apply to such a case, it does not apply until after deter- mination of the lease and, as will be seen hereafter, when the lessor has by some unequivocal act expressed his election to treat the lease as determined, no subsequent act will operate as a waiver. A distress is only a waiver of any forfeiture incurred up to the time it is made, and the continuing in possession under the distress does not waive any forfeiture incurred after the distress was first made ; Doe v. Johnson, 1 Stark. 411. If the tenant does not submit to the distress, but replevies, the distress is not a waiver ; Blyth v. Dennett, 13 C. B. 168, 180, per Jervis, C. J. Where proceedings in ejectment for non-payment of rent are taken under s. 210 of the C. L. P. Act, 1852, when it is necessary to prove that there was no sufficient distress to countervail the arrears due, an insufficient distress for rent due before breach of condi- tion, is not a waiver, for it is made in order to complete the plaintiff's title given him b}^ statute ; Breiver v. Eaton, 3 Doug. 230 ; Cotesivorth v. Spokes, 10 C. B. N. S. 103 ; if, however, such distress reduce the arrears to less than one half year's rent, the lessor cannot succeed under the statute; Cotesworth v. Spokes, supra. The lessor does not waive his right to recover rent due before the forfeiture by enforcing the forfeiture, although the words of the condition be that the lessor shall have the premises again "rt.s- // if// 6' indenture of lease had never been madey 'J'lie proper construction of such a condition is, thai from Ihe time (f re-eniry tlie lessor shall have the land again, as if tlie indenture bad never been made; Ilartshorne v. Watson, 4 B. N. C. 178. In I>ord Coke's tinu! then; was a distinction drawn be- tween cases where on breach of the condition the lease is to dumpor's case. 41 be void and cases where it is only to be voidable on the to be void, lessor's re-entry. In the latter case acceptance of rent has ^oldabiTonly always operated as a waiver of the lessor's ri<^ht to re-enter, on lessor's but in the former case it was held that, as the lease became ^°'^'" '^' void immediately upon the breach of the condition, no sub- sequent acceptance of rent could set it up again. " Where the estate or lease is iiJSO facto void b}^ the condition or limitation, no acceptance of the rent after can make it to have a continuance ; otherwise it is of a lease or estate voidable by entrj^ ; " Co. Litt. 215 a. This distinction was never applied to leases for lives ; Distinction for if a lease for lives contained an express condition that to leases for it should be void upon breach of covenant by the lessee, years. still it was, in contemplation of law, only voidable by re- entry ; and the reason was that an estate which began b}'' livery could be determined only by entry ; Browning v, Beston, Plowd. 133; Doe v. Pritchard, 5 B. & Ad. 765. But the!' force of this reason was lost when estates for life might, under 7 & 8 Vict. c. 76 and 8 & 9 Vict. c. 106, com- mence without liver}". With regard to leases for years the distinction was clearly recognised in Browning v. Beston, supra; Pennant's Case, 3 Rep. 64; Finch y. Throgmorton, Cro. Eliz. 221 ; Mulcarry v. Eyres, Cro. Car. 511 "; Doe v. Butcher, Dougl. 51. The distinction has ceased, however, to be of practical Q"f'''"« bow- importance owing to the construction which in modern tinction now times has been placed, whenever possible, upon forfeiture of importance. clauses. " In a long series of decisions the Courts have construed clauses of forfeiture in leases declaring in terms, however clear and strong, that they shall be void on breach of conditions by the lessees, to mean that they are voidable only at the option of the lessors ; " Davenport v. The Queen, 3 App. Cas. 115, 128. Thus in Doe v. Bancks, 4 B. & Aid. 401, it was provided Construction that, on breach of a condition, the lease should be " deemed clauses, void to all intents and purposes ; " and the tenant con- tended that upon breach the lease was determined, and that a subsequent payment and acceptance of rent created a new tenancy from year to year ; but the court held that the true construction of the proviso was that the lease was onl}' voidable at the option of the lessor. In Rede v. Farr, 6 M. & S. 121, the same construction was placed upon a proviso that the lease should " cease, determine, and be utterly void to all intents and purposes." The principle upon which those cases were 42 dumpor's case. decided was that a tenant could not take advantage of his own wrong to sa}^ that the lease was at an end. The same rule of construction was applied to a contract for the pur- chase of land ; Malins v. Freeman, 4 B. N. C. 395 ; and to composition deeds, Hughes v. Palmer-, 19 C. B. N. S. 393 ; Hyde v. Watts, 12 M. & W. 254. In Roberts v. Davey, 4 B. & Ad. 664, the question arose as to the construction to be put upon such a clause where third persons are concerned. In an action for trespass to land the defendant pleaded a licence from a previous owner in fee ; replication that the licence was, on breach of a certain condition, " to cease, determine, and become utterly void and of no effect," and that the condition had been broken and the licence thereupon become void ; demurrer, and judgment for the defendant on the ground that, accord- ing to Doe V. Bancks, the licence ought to be construed as determinable only at the option of one who had not signified such option. There are also cases and dicta which show that, even as against the lessor, the word "void" will be construed to mean " voidable at his option," so that the breach of the condition can be waived. In Arnshy v. Woodward, 6 B. & C. 519, where, in addition to the words rendering the lease void, it was stated that " it should be lawful for the lessor to re-enter and expel the tenant," the court held that the additional words showed that it was the intention of the parties that the lease should only be voidable b}^ re-entry, and consequently that the lessor had by subsequent receipt of rent waived the forfeiture ; but Lord Tenterden said that if the clause had been in the very same words as in Doe v. Bancks, he " should have still thought that a receipt of rent by the landlord would be an admission that the lease was subsisting at the time when the rent became due, and that he coidd not afterwards insist upon a forfeiture previously committed. To hold the contrary would be productive of great injustice, for the effect would be this ; it would enable a landlord at any period to eject a tenant after he had given him reason to suppose the forfeiture was waived, and after the latter had upon that supposition expended his money in improving the premises." In Doe v. Birch, 1 M. & W. 403, a clause that, on breach of certain stipulations, " it should be lawful for the lessor to retake possession of the premises, and tJiat the agreement should he null and void," was construed in the same way, so as to admit the question dumpor's case. 43 of waiver ; see also Bowser v. Colbij, 1 Hare, 109, and ])aki)i V. Co2)e, 2 Russ. 170. In Davenport v. The Queen, 3 App. Cas. 115, a lease was granted by the Crown subject to the provisoes contained in a Colonial Act ; one of which provisoes was that on a breach of a certain condition "the right and interest" of the tenant " should cease and determine." It was held by the Judicial Committee that this proviso, when read into the lease, was to be construed as rendering the lease upon breach of the condition only voidable, so that the forfeiture could be waived b}^ subsequent acceptance of rent. The rule that such provisoes are to be construed as making the lease only voidable, even as regards the landlord, seems to be involved in the decision in Roherts v. Davey, 4 B. & Ad. 664; see also Victoria, A.-G. of, v. Ettersliank, L. R, 6 P. C. 354. In Ilede v. Farr, 6 M. & S. 121, above referred to, Lord EJlenborough said : — " The court have looked into the cases and authorities cited, and are of opinion that the proviso does not vacate the lease entirely, although it does as against the lessee; " this seems to say that the lessor could insist that the lease became absolutely void upon breach. It may be deduced from the above cases that the distinc- Rule Je- tion between leases which are void, and which are only ^^^ici^^e from . cases. voidable upon breach of condition, has no practical effect, for the courts will in almost ever}^ possible case construe the proviso for forfeiture as making the lease for all i^ur- poses only voidable. It must, however, be observed that the Judicial Committee, in Davenport v. Tlie Queen, supra, limited their judgment by saying: "There is no doubt that the scope and purpose of an enactment or contract may be so opposed to this rule of construction that it ought not to prevail ; but the intention to exclude it should be clearly established." Any act done by tlie lessor, which, if done by a person "V^liat is suffi- having no right to re-enter, would be trespass, is an entry by the lessor and the determination of the term upon a for- feiture ; Doe V. Wood, 2 B. & Aid. 724 ; Turner v. Doe, 9 M. & W. 646 ; so is any actual entry upon the premises by the lessor claiming them as his own; Doe v. Williams, 5 B. & Ad. 789 ; . or a letting of the premises to a new tenant ; Doe v. Pritchard, 5 B. & Ad. 765 ; Baylis v. Le Gros, 4 C. B. N. S. 537 ; and now the bringing of an action to re- 44 DUMPORS CASE. No -waiver after election expressed. Receipt of rent evidence of new tenancy. Distinction between waiver of forfeiture for underletting and for as- signment, now of small importance. Recurring or cover possession " is equivalent to an entry for the forfeiture," and determines the term ; Grimwood v. Moss, L. E. 7 C. P. 360 ; see Evans v. Davis, 10 Ch. D. 747, 763. In Ex p. Hart Dyke, 22 Ch. D, 410, the C. A. declined to express any opinion whether an action to recover possession for a for- feiture determined the lease as from the commencement of the action. If the lessor has hy some unequivocal act, such as entry, or bringing an action of ejectment, expressed his election to treat the lease as determined, no subsequent receipt of rent can operate as a waiver so as to revive the lease ; Jones v. Carter, 15 M. & W. 718 ; Evans v. Wyatt, 43 L. T. 176 ; nor can a distress or any other act ; Grimivood v. Moss, L. R. 7 C. P. 360. In Dendy v. Niclioll, 4 C. B. N. S. 376, Willes, J., is misreported to have said that the above doctrine is exploded, and the same learned judge, in Grim- wood V. Moss, supra, said that he was "not prei)ared to be the first to shake or fritter away the authority of Jones v. Carter.'" A receipt of rent after an unequivocal act of election may, however, be evidence of a new agreement upon the old terms ; Doe v. Batten, 1 Cowp. 243 ; Evans v. Wyatt, supra ; see Keith v. National Telephone Co., (1894) 2 Ch. 147. There was some distinction, in respect of waiver, between a condition against underletting and one against assignment; for in the former case, if the lessee underlet and the lessor accepted subsequently accruing rent, so as to waive the for- feiture, still, if the lessee, after the expiration of that term, made another underlease, the lessor might re-enter ; Doe v. Bliss, 4 Taunt. 735 ; but if the lessor were, by acceptance of rent, to waive the forfeiture incurred by the lessee's assignment, there would have been (before the statutes referred to above, p. 35) an end of the condition altogether, exactly as there would have been if he had licensed it ; Lloyd V. Crispe, 5 Taunt. 249 ; 1 AVms. Saimd. 6th ed. p. 288; Doe v. Pritchard, 5 B. &: Ad. 781, per Patteson, J. And it has been thought that, even if the lessor were expressly to license the lessee to underlet, still the lessee might incur a forfeiture by making a fresh underlease after the expiration of that licensed ; for that the licence would in tliat case only operate as a suspension of the condition, and a condition might be suspended, though it could not (before the above statutes) be apportioned ; 1 Wms. Saund. supra. It need liardly be added that receipt of rent or other act DUMPORS CASE. 45 is no waiver of a forfeiture for a breach of condition which continuing is a continuing breach. forfeiture. The receijit of rent, or other act, only waives all breaches committed up to the time of waiver and, therefore, is no waiver of a forfeiture for a breach of covenant which con- tinues afterwards ; Doe v. Woodhridgc, 9 B. & C. 370 ; Doe V. Jones, 5 Exch. 498. Breaches of covenants to repair ; Doe V. Jones, supra ; Doe v, Durnford, 2 C. & J. 667 ; Ben- nett V. Herring, 3 C. B. N. S. 370: to insure; Doe \. Gladwin, 6 Q. B. 953 ; Doe v. Peck, 1 B. & Ad. 428 ; Price V. Worivood, 4 H. & N. 512 : or not to use the premises in a particular way; Doe v. Woodhtidge, 9 B. & C. 376 : are of a continuing nature ; but not breaches of covenants to put into repair or to rej)air within a specified time after notice ; Coward v. Gregory, L. E. 2 C. P. 153, 170 ; or of a condition against insolvency, after discharge ; Doe v. Rees, 4 B. N. C. 384 ; see also Miles v. Tobin, 17 L. T. 432. . A breach of covenant not to assign is not a continuing breach, but the covenant is broken anew by each assign- ment ; a breach of a covenant not to sub-let is not continuing so long as the underlease cannot be determined, but each sub- letting is a new breach ; GoodrigJtt v. Davids, 2 Cowp. 803 ; Doe V. Bliss, 4 Taunt. 735 ; Walrond v. Hawkins, L. R. 10 C. P. 342; Griffin v. Tomkins, 42 L. T. 359; see also Law7-ie v. Lees, 14 Ch. D. 249, 262. In Shepherd v. Berger, (1891) 1 Q. B. 597, where there was a i:)roviso for re-entry, "if and whenever" rent was in arrear and there was no suthcient distress, it was held that the lessor had a right of re-entry at any time when those two conditions co-existed. Where, however, a breach of covenant not to do a particular act without licence has continued for twenty years, and rent has been received throughout that i>eriod by the lessor, with full knowledge of the facts, a licence may be presumed ; Gihson v. Doeg, 2 H. & N. 615 ; and see Miles v. Tohin, 17 L. T. 432. An underlease is not a breach of a condition " not to "Whatamounts assign, transfer, set over, or otherwise do and put away the ^° a breach of indenture of demise or the premises thereby demised, or any to assign, &c. part thereof;" Crusoe v. Bughy, 3 Wils. 234; but is a breach of a condition not to " set, let, or assign over the demised premises, or any part thereof; " Roe v. Harrison, 2 T. R. 425; and of a condition not to "assign or other- wise part with the demised premises or any part thereof; " Doe v. Worsley, 1 Camp. 20. An assignment is a breach of DUMPOR S CASE. a covenant not to " let, set, or demise for all or any part of the term ; " Grcenaivay v. Adams, 12 Ves. 395. Where two partners were joint lessees an assignment b}' one to the other upon dissolution of partnership was held to be clearly a breach of a covenant not to assign ; Varley v. Coppard, L. R. 7 C. P. 505 ; but where on dissolution of partnership one of two partners, being joint lessees, gave up exclusive possession to the other, this was held not to be a breach of a covenant not to "part with the possession of the premises or any part thereof to any person or persons ; " Bristol v. Wcstcott, 12 Ch. D. 461, where Jessel, M.R., comments upon the former case. To give exclusive possession of any part of the premises to another is a breach of a covenant not to "part with the possession of the demised premises or any part thereof;" Roe v. Sales, 1 M. & S. 297; Greenslade v. Tapscott, 1 C. M. & E. 59 ; though Lord Ellenborough held that letting lodgings was not a breach of a condition not to "let, assign, transfer, set over, or part with the premises or any part thereof without special licence in writing; " Doe v. Laming, 4 Camp. 73. A deposit of a lease by way of equitable mortgage is not a breach of a covenant not " to let, set, assign, transfer, set over, or otherwise part with the premises or the lease ; " Doe v. Hogg, 4 D. & R. 226 ; Ex p. Drake, 1 M. D. & De G. 539. A parol letting for a yearly tenancy is a breach of a covenant not "to underlease ; " Timms v. Baker, 49 L. T. 106. An underlease for the whole term is an " assignment ; " Beardman v. Wilson, L. R. 4 C. P. 57. A deed of assignment in trust for creditors, under s. 194 of the Bankruptcy Act, 1869, was held to be a breach of covenant not to " assign," and to cause a forfeiture ; Holland v. Cole, 1 H. & C. 67 ; but an assignment, subsequently avoided in bankruptcy, as an act of bankruptcy, was held not to cause a forfeiture ; Doc v. Powell, 5 B. & C. 308 ; the lessor may, however, in such a case, by the insertion of express words for that purpose, provided they be clear and distinct, make even such an assignment a forfeiture ; lloew. Galliers, 2 T. R. 133 ; Davis V. Kyton, 7 Bing. 154. An assignment by operation of law is no breach of a con- dition not to assign, unless such an event is brought about by the fraudulent procurement of the lessee himself ; Doe V. Carter, 8 T. \l. 57, 300; see Doe v. Hawke, 2 East, 481. Therefore if the lessee become bankrupt ; Doe v. Beran, 3 M. & S. 353; Weatherall v. Geering, 12 Ves. 504; Doe'y. DUMPORS CASE. 47 Smith, 5 Taunt. 795 : or if the lease be taken in execution ; Doe V. Carter, supra ; Croft v. Lumley, 5 E. & B. G48, 688, '6 H. L. C. 672 : or if the land be taken under statutory powers ; Slipper v. Tottenham 11. Co., 4 Eq. 112 ; Baily v. De Crespifiny , L. K. 4 Q. B. 180 : there is no breach of a con- dition not to alienate ; see also Doe v. Rugeley, 6 Q. B. 107. There is frequently an express condition that the term shall be forfeited on the bankruptcy of the lessee, or the taking in execution of the term ; Davis v. Eyton, 7 Bing. 154 ; Roe v. Galliers, 2 T. E. 133 ; Ex p. Gould, 13 Q. B. D. 454; and a condition that the lessee shall occupy personally may have the same effect ; Doe v. Clarke, 8 East, 185. Where there was a proviso for re-entry if "the lessee, his executors, administrators, or assigns should become bankrupt," and the lessee had assigned with the consent of the lessor as provided by the lease, it was held that the subsequent bankruptcy of the lessee did not cause a forfeitvire ; Smith v. Gronow, (1891) 2 Q. B. 394. Marriage did not operate as a forfeiture ; Anon., Moor, IMarriase. 21. Whether a devise be a breach of the condition not to l^evise. assign, has been disputed ; Fox v. Swann, Styles, 483 ; Dumper v. Syms, Cro. Eliz. 815 ; Berry v. Taunton, Id. 331 ; Doe V. Sevan, 3 M. & S. 353, 361, jjer Bayley, J. ; Crusoe v. Bughy, 3 Wils. 234; Doe v. Evans, 9 A. & E. 719, 724, arguetido. It has been thought that if executors and administrators ^vllo are be not expressly named in the condition, an assignment by J^omul where 11 n f ■ J HIT r.-f r ^'^° COVeiiailt them would not create a lorieiture ; Ano7i., Moor, 21 ; Seers names assigns. V. Hind, 1 Ves. jun. 295 ; but see per James, L.J., in Williamson v. Williamson, L. B. 9 Ch. 732, where he said " the words, lessee or lessees, impl}' executors, administra- tors, or assigns." The mention of assigns includes admin- istrators, for they are assigns in law ; More's Case, Cro. Eliz. 26 ; Thornhil v. King, Id. 757 ; see Cox v. Browne, Cha. Kep. 170 ; so are executors ; Wollaston v. Hakeicill, 3 Scott, N. E. 593 ; Sleap v. Newman, 12 C. B. N. S. 116 ; even de son tort, Paull v. Simpson, 9 Q. B. 365. In Doe v. How far Bevan, 3 M. & S. 353, it was held that the assignees of a assicru's bind- bankrupt might assign, although assigns were named in the "^S °^ ,..,.,^ , . , assignees and condition, but in that case the assignees were ordered by trustees under the Court of Chancery to sell the lease, and the decision ^^^^ Bank- was before Copeland v. Stcpliens, 1 B. & Aid. 593, which established that the general assignment of a bankrupt's personal estate under the commission did not vest a term of 48 DUMPORS CASE. General de- cisions as to covenants not to assiOT. Improper withholding of licence to assign. A.ssiginnent witliout consent. years in the assignees until their acceptance of it. The Bankruptcy Acts, 1849 and 1861, gave the assignees an election to accept or decline leases. Now under the Bank- ruptcy Act, 1883 (46 & 47 Vict. c. 52), ss. 20, 54, 168, it seems that, immediately upon a dehtor being adjudged bankrupt the term vests in his trustee, subject to a right of disclaimer exercisable under s. 55 ; see Re Johnson, 70 L. T. 381. A 5'ewcraZ condition not to assign, inserted in a lease to a man " and his assigns," was considered in Stuckeley v. Butler, Hob. 170, to be void for repugnancy, though it was admitted that a condition against assignment to a particular person would, even in such case, be good ; but the former part of the above doctrine has been denied ; Dennis v. Loving, Hard. 427; 2iQ.diVD.WeatherallY. Geering, 12 Ves. 504, 511, Grant, M.R., said, that assigns would in such a case be taken to mean such assigns as the lessee might lawfully have, viz. by licence, and that there was no repugnancy. It is laid down (see Sheppard's Touchstone, by Preston, 131 ; Co. Litt. 223 a) that in an assignment of the entire interest in a term ah'eady created, a condition generally, and not partiall}' and upon due restraints, against assignment is void. Where there was a covenant not to assign without licence, such licence not to be withheld " unreasonably or vexatiously," Stuart, V.-C, held that it was unreasonable and vexatious to withhold the licence for the purpose of obtaining a surrender of the lease ; Lehniann v. McArthur, 3 Eq. 746 ; but the C. A. expressed doubts upon that point ; 3 Cli. 496 ; see also Treloar v. Bigge, L. R. 9 Ex. 151, where consent was not to be " arbitrarily withheld ; " Hyde V. Warden, 3 Ex. D. 72, where consent was not to be withheld in the case of a " respectable and responsible person ; " S]ie2>2)ard v. Hong Kong Bank, 20 W. R. 459, where consent was not to be withheld " without some reasonable objection; " and Harrison v. Barroio, 63 L. T. 834, where consent was not to be " unreasonabl}' refused, or refused to a respectable and responsible i)erson." If in such cases the consent of the lessor is improperly withheld, an assignment without consent does not cause a forleiture ; Treloar v. Bigge, snpra; Hydew. Warden, supra; ^ear v. House Hoc, 16 Ch. I). 387 ; Burford v. Unwin, 1 C & E. 494. 11', however, the lessee assigns without ask- ing for consent, although, if asked for, consent could not be dumpor's cask. 4-9 properly withheld, a forfeiture is incurred ; Barron- v. Isaacs, (1891) 1 Q. B. 417 ; Lepla v. Uoi/ers, (18i)Bj 1 (.,). B. 31. It seems that a covenant not to assign witliout a licence is not a proper and usual covenant which a lessor is entitled to have under an agreement for a lease, apart from express stipulation ; Chiirclt v. Brown, 15 Ves. 258; Hodfikinson v. Crowe, 10 Ch. G'22 ; Hampshire v. Wiekens, 7 CJh. D. 555 ; lie Andcrton, 45 Ch. D. 476 ; Re Lander, (1892) 3 Ch. 41. On a mere agreement not to underlet a condition of re-entry on breach is not implied; Crawley v. Priee, L. 11. 10 Q. B. 302. A i)roviso for re-enir}' may be reserved ui)on breach of Negative ,• n r ' --i- i. T -J. covenants. negative as well as ot positive covenants. In some cases it has been said that the word "perform," used in a proviso for re-entry, is not applicable to breaches of negative covenants, but that some such word as " observe " or "keep" must be used for that purpose; West v. Dobb, L. R. 5 Q. B. 460 ; Wadltam v. Postmaster-General, L. R. 6 Q. B.' 644, 648 ; Hgde v. Warden, 3 Ex. D. 72, 82 ; Evans v. Davis, 10 Ch. D. 747 : but in Barrow v. Isaacs, (1891) 1 Q. B. 417, 419, 424, the C. A. thought that there was no good ground for this distinction. By 22 & 23 Vict. c. 35, s. 3, where the reversion on a Appoi-tion- lease is severed, and the rent or other reservation is lesfallv ™'"^* °^ '^*'"' T , . n , ,. , . ^ / diiions, 22 & apportioned, the assignee oi each part oi the reversion is 23 Vict. entitled in respect of the apportioned rent to the benefit of °" ^^' ^- ^^ all conditions or powers of re-entry for non-payment of the ^^4^^^ \])^^' original rent or other reservation ; and b}^ the Conveyancing Act, 1881, s. 12, it is provided, with respect to leases made after the commencement of that Act, "that notwithstanding the severance by convej^ance, surrender, or otherwise, of the reversionary estate in any land comprised in a lease, and notwithstanding the avoidance or cesser in aii}- other manner of the term granted b}^ a lease as to part only of the land comprised therein, every condition or right of re-entry, and every other condition, contained in tlie lease, shall be apportioned, and shall remain annexed to the several parts of the reversionary estate as severed, and shall be in force with respect to the term whereon each severed part is reversionary, or the term in any land which has not been surrendered, or as to which the term has not been avoided or has not otherwise ceased, in like manner as if the land comprised in each severed i)art, or tlie land as to which the term remains subsisting, as the case ma}' be, had alone originally been comprised in the lease." The S.L.C. — VOL. I. 4 50 DUMPORS CASE. Notice of assignment. Convevanciui; Act, 1881, 44 & 45 Vict, c. 41. Notice before forfeiture. Excejition Conveyancing Act, 1892, 55 & 56 Vict, c. 15. Agreement for a lfaH(-. assignee of part of the reversion in the entire of the hind may take advantage of a condition ; Wright v. Burronr/hes, 3 C. B. 685 ; Taite v. Gosling, 11 Ch. D. 273 : see as to the indivisibility of a condition precedent, Neale v. Ratcliff, 15 Q. B. 916. Except in the case of forfeiture for non-payment of rent (see 4 Ann. c. 16, s. 10), the assignee of the reversion can enforce a forfeiture without giving the tenant notice of the assignment ; Scaltock v. Harston, 1 C. P. D. 106. By the Conveyancing Act, 1881, s. 14, a right of re-entry or forfeiture is not enforceable, by entry or otherwise, unless and until the lessor has served the lessee with a notice specifying the breach complained of, and requiring the lessee to remedy the same, if it can be remedied, and to make compensation, and the lessee has failed to comply with such notice within a reasonable time. This provision, however, does not extend to forfeitures for non-payment of rent, or for assigning, underletting, parting with the posses- sion of, or disposing of the premises, or on bankruptcy of the lessee, or the taking in execution of his interest (s. 14, sub-s. 6). By s. 2, sub-s. 2, of the Conveyancing Act, 1892, the provisions of s. 14 of the above Act are now made to apply, to some extent, to forfeitures on bankruptcy or taking in execution ; those provisions are made to apply during one year from the date of the bankruptcy or taking in execution, and to continue to ajjply if the lessee's interest is sold ditring that year. Leases of agricultural or j^astoral land, of public-houses, of furnished houses, or of any pro- perty in respect of which the personal qualifications of the tenant are important, are, however, excepted from the operation of the Act of 1892 (s. 2, sub-s. 3). The provisions of s. 14 of the Act of 1881 apply to all leases nuule before or after the Act, and take effect notwitli- >tanding any stipulation to the contrary. It was decided that s. 14 did not apply to an agreement for a lease; Stcain V. Ai/irs, 21 Q. B. D. 289 ; but now, by s. 5 of the Act of 181-2, s. 14 is made applicable to an agreement for a lease " \vhaynient of rent, under s. 212 of the C. L. P. Act, 1852, and s, 1 of the C. L. P. Act, 1860; see Hare v. Elms, (1893j 1 Q. B. 604. 4 2 SPENCER'S CASE. lASCH. 25 ELIZ.-IN THE KING'S BENCH. [reported 5 COKE, 16,] Covenants — "What covenants run with thr land. Spencer and his wife brought an action of (a) covenant against Clark, assignee to J. assignee to S., and the case was such : Spencer and his wife by deed indented demised a house and certain land (in the right of his wife) to S. for a term of 21 years, by which indenture S. covenanted for him, his executors and administrators, with the plaintiffs, that he, his executors, ad- ministrators, or assigns, would build a brick wall upon part of the land demised, &c. S. assigned over his term to J,, and J. to the defendant ; and for not building of the brick wall the plaintiff brought the action of covenant against the defendant as assignee : and after many arguments at the bar, the case was excellently argued and debated by the justices at the bench: and in this case these points were unanimously resolved by Sir Christopher Wray, Chief Justice, Sir Thomas Gawdy, and the whole court ; and many differences taken and agreed concerning express covenants, and covenants in law, and which of them would run with the land, and which of them are collateral, and do not go with the land, and where the assignee shall be bound without naming him, and Vv'here not ; and where he shall not be bound, although he be expressly named, and where not. 1. When the covenant extends to a thing in esse, parcel of the demise, the thing to be done b}^ force of the covenant is (jiiodmninodo annexed and a})})urtcnant to the thing demised, and shall go with the land, and shall bind the assignee {}>), although (a) 2 Bulstr. 281, 282. Cornberb. 64. Cr. Jac. 125. Cr. Car. 222, 523. 1 Cartb. 178. Skinner, 211, 297. 3 Wil- Jones, 245. 1 Siilerf. 157. 1 Anders. »on, 27. Cro. Jau. 439. Moor, 159. 82. 1 Show. 284. 4 Mod. 80. 3 Lev. (6) Moor, 27, 399. Cro. El. 457, 552, 326. Salk. 185, 317. 553. 1 Roll, 621, 522. 1 Sand. 23'.i. SPENCERS CASE. 53 he be not bound by express words ; but when the covenant ex- tends to a thmg which is not in being at the time of the demise made, it cannot be appurtenant or annexed to the thing which hath no being ; as if the lessee covenants to repair the houses de- mised to him during the term, that is parcel of the contract, and extends to the support of the thing demised, and therefore is quodammodo annexed appurtenant to houses, and shall bind the assignee although he be not bound expressly by the covenant : but in the case at bar the covenant concerns a thing which was not in esse at the time of the demise made (c), but to be newly built after, and therefore shall bind the covenantor, his executors or administrators, and not the assignee, for the law will not annex the covenant to a thing which hath no being. 2. It was resolved that in this case, if the lessee had cove- nanted for him and Ids (d) assigns, that they would make a new wall ttpon some part of the thing demised, that forasmuch as it is to be done upon the land demised, that it should bind the assignee : for although the covenant doth extend to a thing to be newly made, yet it is to be made upon the thing demised, and the assignee is to take the benefit of it, and therefore shall bind the assignee by express ivords. So on the other side, if a warranty be made to one, his heirs and assigns, by express words, the assignee shall take benefit of it, and shall have a {e) Warrantia Charted ; F. N. B. 135 ; & 9 E. 2, Garr' de Charters, 30 ; 36 E. 3, Garr, 1 ; 4 H. 8, Dyer, 1. But although the covenant be for him and his assigns, yet if the thing to be done be merely collateral to the land, and doth not touch or concern the thing demised in any sort, there the assignee shall not be charged. As if the lessee covenants for him and his assigns to build a house upon the land of the lessor which is no parcel of the demise, or to pay any collateral sum to the lessor, or to a stranger, it shall not bind the assignee, because it is merel}^ collateral, and in no manner touches or concerns the thing that was demised, or that is assigned over ; and therefore in such case the assignee of the thing demised cannot be charged with it, no more than any other stranger. (c) Cr. El. 457. Cr. Jac. 439. Dyer, 1 Roll. Hop. 360, Moor, 159, 399] 14, |.l. 09. 1 Anders. 82. Moor, 159. («) F. N. 15. 135. {d) Or. Car. 25, 188. 1 Jones, 223. 64 spencer's case. 3. It was resolved, if a man leases (/) sheep or other stock of cattle, or any other personal goods for any tnne, and the lessee covenants for him and his assigns at the end of the time to deliver the like cattle or goods as good as the things letten were, or such price for them ; and the lessee assigns the sheep over ; this covenant shall not bind the assignee, for it is but a personal contract, and wants such (g) privity as is between the lessor and lessee and his assigns of the land in respect of the reversion. But in the case of a lease of personal goods there is not any privity, nor any reversion (h), but merely a thing in action in the personalty, which cannot bind any but the covenantor (i), his executors or administrators, who represent him. The same law, if a man demise a house and land for years, with a stock or sum of money, rendering rent (k), and the lessee covenants for him, his executors, administrators, and assigns, to deliver the stock or sum of money at the end of the term, yet the assignee shall not be charged with this covenant ; for although the rent reserved was increased in respect of the stock or sum, yet the rent did not issue out of the stock or sum (l), but out of the land only ; and therefore as to the stock or sum the covenant is per- sonal, and shall bind the covenantor, his executors and adminis- trators, and not his assignee. And it is not certain that the stock or sum will come to the assignee's hands, for it may be wasted, or otherwise consumed or destroyed by the lessee, and therefore the law cannot determine, at the time of the lease made, that such covenant shall bind the assignee. 4. It was resolved, that if a man makes a feoffment by this word (/») dedi, which implies a warranty, the assignee of the feoffee shall not vouch ; but if a man makes a lease for years by this word concessi (n) or demisi, which implies a covenant, if the assignee of the lessee be evicted, he shall have a writ of (/) 2 Joiuis, 152. 1 Leon. 43. Rwinb. 56, pi. 15, 16, 212, pi. 37, 38. 21 E. 4, 324. 29 a. 3 Bulst. 21)1. 9 E. 4, 1 b. (fj) Cr. Car. 188. (m) 2 Inst. 275. 4 Co. 81 a. 1 Co. (h) 1 Leon. 43. 2 b. Co. Lit. 384 a. Yclv. 139. Perk. (t) Swinb. 324. Sect. 124. (k) Sec Dean of Windsor v. G'ovrr, 2 (n) 4 Co. 81 a. Yelv. 139. Co. Lit. Wms. Saund. 301 ; Gardiner v. William- 384 a. Perk. Sect. 124. Dall. 101. Cr. son, 2 h. & Ad. 336 ; Lord Monntjoy's .fac. 73. 2 Inst. 276. F. N. B. 134 h. CasR, 5 Co. 4 ; JcwcVs Case, ib. 3. Hob. 12. 1 Vent. 44. Kol. 521. (See (I) Kelw. 153 b. 1 And. 4. Dyer, 8 & 9 Vict. c. 106, s. 4.) SPENCERS CASE. 55 covenant : for the lessee and his assignee hath the yearly profits of the land, which shall grow by his labour and industry, for an annual rent ; and therefore it is reasonable, when he hath a})plied his labour, and employed his cost upon the land, and be evicted (whereby he loses all), that he shall take such benefit of the demise and grant as the first lessee might, and the lessor hath no other prejudice than what his especial contract with the first lessee hath bound him to. 5. Tenant by the courtesy, or any other who comes in in the 2)ost, shall not vouch (which is in lieu of an action). But if (o) a ward be granted by deed to a woman who takes husband, a>nd the woman dies, the husband shall vouch by force of this word grant, although he comes to it by act in law. So if a man demises or grants land to a woman for years, and the lessor covenants wftli the lessee to repair the houses during the term, the woman marries and dies, the husband shall have an action of covenant as well on the covenant in law on these words (demise or grant) as on the express covenant. The same law is of tenant by statute-merchant or statute-staple or elegit of a term, and he to whom a lease for years is sold by force of any execution sjall have an action of covenant in such case as a thing annexed to the land, although they come to the term by act in law ; as if a man grants to leasee for years, that he shall have so many {})) estovers as will serve to repair his house, or as he shall burn in his house, or the like, during the term, it is as appurtenant to the land, and shall go with it as a thing appurtenant, into whose hands soever it shall come. 6. If lessee for years covenants to repair the houses during the term {q), it shall bind all others as a thing which is appur- tenant, and goeth with the land, in whose hands soever the term shall come, as well those who come to it by act in law, as by the act of the party, for all is one having regard to the lessor. And if the law should not be such, great prejudice might accrue to him ; and reason requires that the}^ who shall take benefit of such covenant when the lessor makes it with the lessee, should, on the other side, be bound by the like covenant when the lessee makes it with the lessor. (o) 2 Roll. 743. See post, p. 57. Jac. 240, 309, 439. 1 Jones, 223. Cr. [p) 5 Co. 24 b. F. N. B. 181 ii. El. 373. 1 Sid. 157. 2 Vern. 275. 1 Iq) 5 Co. 16 a, b. 5 Co. 24 b. Ci'. B. & B. 238. 56 SPENCERS CASE. 7. It was resolved that the assignee (r) of the assignee should have an action of covenant. So of the executors of the assignee of the assignee ; so of the assignee of the executors or adminis- trators of every assignee, for all are comprised within this word (assignees), for the same right which was in the testator, or intestate, shall go to his executors or administrators (s) ; as if a man makes a warranty to one, his heirs and assigns, the assignee (t) of the assignee shall vouch, and so shall the heirs of the assignee ; the same law of the assignee of the heirs of the feoffee, and of every assignee. So every one of them shall have a writ of Warrantia CharUe. Vide 14 E. 3, Garr. 33 ; 38 E. 3, 21 ; 36 E. 3, Garr. 1 ; 13 E. 1, Garr. 93; 19 E. 2, Garr. 85, &c. For the same right, which was in the ancestor, shall descend to the heir in such case without express words of the heirs of the assignees. Observe, reader, your old books, for they are the fountains out of which these resolutions issue ; but perhaps by these differences the fountains themselves will be made more clear and profitable to those who will make use of them. For example (w), in 42 E. 3, 3, the case is : grandfather, father, and two sons : The grandfather was seised of the manor of D., whereof a chapel was parcel : a prior, with the assent of his convent, by deed covenanted for him and his successors, with the grandfather and his heirs, that he and his convent would sing all the week in his chapel, parcel of the said manor, for the lords of the said manor and his servants, kc : the grandfather did enfeoff one of the manor in fee, who gave it to the younger son and his wife in tail ; and it was adjudged that the tenants in tail as {x) terre- tenants (for the elder brother was heir), should have an action of covenant against the prior, for the covenant is to do a thing which is annexed to the chapel, which is within the manor, and so annexed to the manor, as it is there said. And Finchden related that he had seen it adjudged, that two {y) coparceners made partition of land, and one did covenant with the other to acquit him of suit, which was due, and that coparcener to whom (r) 1 Koll. rj'il. 1 Roll. Rep. 81, 82. Br. Covenant, 5. Statham Covenant, 3. 2 liulst. 281. Owen, 1.01, 1.02. {x) Co. Lit. 385 a. 8 Co. HO a. (s) See Skap v. Kcwmaii, 12 C. B. (y) 1 HoU. 521. Co. Lit. 381 b, 385 a. N. S. 116, 42 K. 3, 3 1). Br. Covenant, 5. 1 Roll. {t) Cr. Kl. .031. Co. Lit. 384 h. liep. 81. [v) Co, Lit. 381 a 1 Roll. 520, 521. spencer's case. 57 the covenant was made did alien, and the suit was arrear ; and the feoffee brought a writ of covenant against the coparcener to acquit him of the suit ; and the writ was maintainal)le notwith- standing he was a stranger to the covenant, because the acquittal fell upon the land; but if such covenant were made to say divine service in the (z) chapel of another, there the assignee shall not have an action of covenant, for the covenant in such case cannot be annexed to the chapel, becaus3 the chapel doth not belong to the covenantee, as it is adjudged in (a) 2 H. 4, 6 b. But there it is agreed that if the covenant had been with the lord of the manor of D. and his heirs, lords of the manor of I)., and in- habitants therein, the covenant shall be annexed to the manor, and there the terretenant shall have the action of covenant without privity of blood. Vide 29 E. 3, 48, and 30 E. 3, 14, Simiildn (b) Simeoji's Case, where the case was, that Lady Bardolf,by deed granted a ward to a woman who married Simp- kin Simeon, against whom the Queen brought a writ of right of ward, and they vouched the Lady Bardolf, and afterwards the wife died, by which the chattel (c) real survived to the husband (and resolved that the writ should not abate), the vouchee appeared, and said, what have 3'ou to bmd me to warranty ? The husband showed how that the lady granted to his wife, before marriage, the said ward; the vouchee demanded judgment for two causes. 1. Because no word of warranty was in the deed : as to that it was adjudged that this word {d) (fp-ant) in this case of grant of a ward (being a chattel real) did import in itself a warranty. 2. Because the husband was not assignee to the wife, nor jjrivy. As to tJiat it was adjudged that ho should vouch, for this warranty implied in this word {ririnit), is in case of a chattel real so annexed to the land, that the husband who comes to it by act in law, and not as assignee, should take benefit of it. But it was resolved by Wray, Chief Justice, and the whole court, that this word {concessi or deinisi), in case of (e) freehold or inherit- (2) 1 Roll. 521. 3 Bulst. 165. Hob. 47. 1 Roll. Rep. [a) Co. Lit. 385 a. Fitz. Covenant, 81. Cr. El. 43G. 13. Br. Covenant, 17. F. X. B. (c) 1 Roll. 345. Co. Lit. 351 a, 181 a. {d) Co. Lit. 3S4 a, 101 b. {b) Co. Lit. 384 a. 2 Roll. 713, 744. (c) Co. Lit. 384 a. 58 SPENCERS CASE. ance, doth not import any warranty ; 11 H. 6, 45, ace' ; vide 6 H. 4 ; 12 H. 4, 5 ; 1 H. 5, 2 ; 25 H. 8, Covenant Br. 32 ; 28 H. 8, Dyer, 28 ; 48 E. 3, 22 ; F. N. B. 145 C, 146, & 181 ; 9 Eliz., Dyer, 257 ; 20 H. 8, 3 ; 5 H. 7, 18 ; 32 H. 6, 32 ; 22 H. 6, 51 ; 18 H. 3, Covenant, 30 ; Old N. B., Covenant ; 46 H. 3, 4 ; 38 E. 3, 24. . See the statute of (/) 32 H. 8, c. 34 ; which act was resolved to extend to covenants which touch or concern the thing demised and not to collateral covenants. (/) 32 H. 8, c. 34. Moor, 159. Cr. Jac. 523. 2 Bulst. 281, 282, 283. 1 Sand. 238, 239. Cr. Car. 25, 222. 1 Anders. 82. 2 Jones, 152. Owen, 152. Style, 316, 317. Co. Lit. 21.5 a. When a cove- nant is said to run wth tlie land. AVhen with reversion. This is the leading case referred to upon every question whether a particular covenant does or does not run with particular lands, or a particular reversion. A covenant is said to run with land, when either the lia- bility to i^erform it, or the right to take advantage of it, l^asses to the assignee of tliat land. A covenant is said to run with the reversion, when either the liability to perform it, or the right to take advantage of it, passes to the assignee of that reversion. Questions upon this branch of the law generall}' arise between the lessor of lands or his assignee, and the lessee thereof or his assignee ; and we will, therefore, briefly con- sider the subject with reference to persons holding those characters before enquiring into it with reference to persons not occupying those relations to each other. rever.sion. Covenants hetiveen Lessor and Lessee. ScmhU at ^1^ opinion has sometimes been intimated that there coiiinioii law , i • i • i covenants did were, even at common law, some covenants whicli ran with !."!i"':"?^''^'' the reversion. The authorities, however, seem to prepon- derate in favour of the doctrine of Serjeant Williams, who, in TJmrs})]) v. I'lant, 1 Wms. Saund. 300, n. 10, says that " the better oj)ini()n seems to be, that the assignee of the reversion could not bring an action of covenant at common biw." And tlie cases will be best reconciled, and the whole subject rendered far more intelligible, if we adopt the view taken by the learned and eminent personages who have spencer's case. 59 since edited that work (vol. 1, 240 a., note (o) ), viz., "that at common law covenants ran with the land, bat not ivith the reversion. Therefore, the assignee of the lessee was held to be liable in covenant and to be entitled to bring covenant, but the assignee of the lessor was not ; " see Butler v. Archer, 12 Ir. C. L. E. 104, 127, per Lefroy, C.J. Such being the state of the common law, the statute 32 32 II 8, H. 8, c. 34, after reciting, among other things, that by the ' ' . ' " \ ° ^ 1111 Assignees of common law no stranger to any covenant could take advan- reversion to tage thereof, but only such as were parties or privie?s thereto, ^^^'^^ ]]^^ ' r6rnccliGS enacted that all persons and bodies politic, their heirs, against lessees successors, and assigns, having any gift or grant of the king ^"4 ^^'^^^^ ' in ' _ & . & t> ^ o assigns as of any lands or other hereditaments, or of any reversion in lessors had. the same, which belonged to any of the dissolved monasteries, or b}' any other means came to tiie king's hands, since the 4th Feb., 1535, or which at any time before the passing of this Act belonged to any other person and after came to the king's bands, and all other persons being grantees or assignees to or by the king or an}^ other person, and their heirs, executors, successors, and assigns, shall have like ad- vantages against the lessees, their executors, administrators, and assigns, b}^ entry, for non-payment of the rent or for doing waste or other forfeiture, and by action only, for not performing other conditions, covenants, or agreements, ex- pressed in the indentures of leases and grants, against the said lessees and grantees, their executors, administrators, and assignees, as the lessors and grantors, their heirs, or successors, might have had. S. 2 enacted that all lessees and grantees of lands, or other S. 2. hereditaments, forterms of years, life orlives, their executors, ^^gfj^ assigns administrators, or assigns, shall have like action and remedy to have the against all persons and bodies politic, their heirs, successors, a^ahis^assi^''- and assigns, having any gift or grant, of the king or any uees of rever- other person, of the reversion of the lands and hereditaments had a^ainst^^ so letten, or any parcel thereof, for an}- condition or covenant their lessors. expressed in the indentures of their leases, as the same lessees might have had against the lessors and grantors, their heirs and successors. The Conveyancing Act, 1881, ss. 10, 11, also contains 44 & 45 Vict. some important provisions on this subject, the effect of which ^' will be considered below. Leases not under seal are not within the meaning of 32 Leases not H. 8, c. 34, Bryclges v. Lewis, 3 Q. B. 603; Standen v. not within Chrismas, 10 Id. 135 ; Elliot v. Johnson, L. R. 2 Q. B. 120; 32 H. 8, c 34. 60 SPENCERS CASE. Statute ex- tends only to covenants which touch the thing demised. Assignee of part of the reversion is an assignee within statute. And of rever- sion in part of the land. Assignee of term in part of the land. O ran toe of reversion in copyliolda. and the remedy upon the stijmlations contained in them is by action in the name of the original stipulator ; Bickford v. Parson, 5 0. B, 920. In the case, however, of parol tenancies, when there has been an acceptance of rent or other act affirming the tenancy, a jury may infer that the parties consented to continue, after the assignment, upon the terms of the original letting, and " a conventional law is thus made equivalent to that of H. 8 in the case of leases under seal ; " Cornish v. Stuhbs, L. R. 5 C. P. 334, per Willes, J. ; Smith v. Eggington, 9 Id. 145 ; cf. Mansel v. Norton, 22 Ch. D. 769. Although the woi'ds of this Act are very general, and, taken literally, would comprehend every covenant expressed in the lease, yet it is settled, as we are informed in the principal case (p. 58), that it extends only to covenants which touch and concern the thing demised, and not to colla- teral covenants ; see Wehh v. Russell, 3 T. R, 402; 1 Inst. 215 b. ; Shepp. Touch. 176. It is also settled that an assignee of part of the reversion, e.g. for years, is an assignee within the meaning of the Act ; 1 Inst. 215 a ; Kidwelly v. Brand, Plowd. 72 ; Baxter v. Hemmings, 2 Bulstr. 281, per Coke, C»J., citing Leonard's Case ; Wright v. Bnrroughes, 4 D. & L. 226 ; 3 C. B. 685 ; and so also is the assignee of the reversion in ])art of the land, as far as covenants are concerned ; Twynam v. Pickard, 2 B. & Aid. 105 ; Simpson v. Clayton, 4 B. N. C. 758, 780; though, prior to 22 & 23 Vict. c. 35, s. 3, and the Convey- ancing Act, 1881, he was not so for the purpose of availing himself of conditions, for they could not be apportioned by the act of the party; see Dumpor's Case, and the notes thereto, ante, p. 49. I'he original reversioner, after he has assigned the reversion in part of the land, may maintain covenant ; Swansea v. Thomas, 10 Q. B. D. 48. The assignee of the term in part of the land is within the Act ; Palmer v. Edwards, Doug. 121 ; Twynam v. Pickard, 2 B. & Aid. 105 ; 2 Wms. Saund. 181 d. ; so is the assignee of the reversion into which a share of the term has merged ; Baddcley v. Vigvrs, 4 E. & B. 71 ; and the assignee of some of the joint tenants of a term where the covenant is joint and several ; Norval v. Pascoc, 34 fj. J. Ch. 82. A grantee of the I'eversion in copylu)ld hinds is also an as- signee witliin the meaning of the Act ; Glover v. Cope, 3 Lev. 326; Uldttou V. Peacock, 2 Myl. & K. 325. In Isherwood V. Oldknow, 3 M. & S. 382, where lands were devised to A. spkncee's case. 6L for life, remainder to B. for life, with power to A. to make leases, and A. made a lease to C. and died during the term demised, it was held that B. should sue upon the covenants; " the question," said Le Blanc, J., "is — Is the pl'iintiff' an Devisee in assignee ? He is the person next i" -emainder to the per- '■'^"la.uider. son granting the lease ; true, he is not assignee of the lessor : he is assignee of the devisor. But I take it to be cdear that the lease must be considered as emanating from the person who creates the power, and tliat it derives its force and authority from him. . . , The argument is, that he cannot have this action because he must be assignee of the person of the lessor or grantor. But he is the assignee of the person who, in the eye of the law, is the lessor : because the person empowering the tenant for life to grant the lease is, in the eye of the law, the lessor. The doctrine of Lord Coke in ]]liitli)ck's Case, 8 Rep. 70, entitles the court to say upon principle that this plaintiff was the f^ssignee of him who, in contemplation of law, was the lessor, and that as such he is entitled to this action ; " see also Greenaway v. Hart, 14 C. B. 340, and Rogers v. Humphreys, 4 A. & E. 299. It seems, that a tenant from year to year, who demises by Reversion of • li.i'i'i' 1 ■i„ii " tenant from indenture lor a term ot 3'ears, however long, has, b}' reason ^,^.^^. ^^ ^.g^^.^ of the possibility of his estate continuing longer than the demised term, a reversion with which the benefit of the covenants in the indenture may pass to an assignee during the existence of the tenancy from year to year; Oxley v. James, 13 M. & W. 209. Both the benefit and burden of covenants, therefore, after Covenants o-> TT n r. < -ii ii ■ 1- • , now mn with 6 A H. 8, c. 34, ran with the reversion irom assignee to reversion as assignee, in the same manner as they ran, at common law, ^^'itli I'^n^i- from assignee to assignee of the land. In order, however, that the covenants might continue available for the benefit of the reversioner, it was held to be absolutely necessary that he should continue to be seised or possessed of the same reversion to which the covenants were incident; for, if it happened to be merged by his becoming the owner of Effect of some other reversion in the same land, the covenants were !"fl^!f ° 1 CVclolUIl. altogether gone. Thus, in Threr v. Barton, Moore, 94, a person made a lease for 100 years ; the lessee made an underlease for 20 years, rendering rent, with a clause of re- entry ; afterwards, the original lessor granted the reversion in fee, and the grantee purchased the reversion of the term. It was held the grantee should not have eitlier the rent or 62 SPENCERS CASE. Tenants in common. When lease renewed. Stat. 4 Geo. 2, c. 28, s. 6. Rents and duties. .Merger does not extin- ^.(ui.sh cove- nants, wlien. lieal Property Act, 1845, s. 9. .Iiidicatiirr- Act, 187:J {•.',C, k -67 Vict, c. 66), .s. 2i>, .snli-s. 4. the power of re-entry, for the reversion of the term to which they were incident was extinguished in the reversion in fee ; see also Wehh v. Russell, 3 T. R. 402 ; Woottori v. Steffenoni, 12 M. & W. 132, where Parke, B., put the question— If tenants in common demise their undivided interests, and there is a joint covenant with both, will that run with the reversion ? The answer to which was, that it would, but with the entire reversion only ; Thompson v. Hakeuill, 19 C. B. N. S. 713. One of the consequences of the above doctrine was, that when lands were leased with a stipulation for renewal, and the lessee accepted a new lease, his remedies for rent and on the covenants contained in any underlease he might have made were completely gone, since the reversion was destroyed to which they were incident. To obviate these evils, 4 G. 2, c. 28, s. 6, enacted, that in case any lease shall be surren- dered in order to be renewed, the new lease shall be as valid, to all intents, as if the underlease had been likewdse surren- dered before the taking of the new lease ; and that the remedies of the lessees against their under-tenants shall remain unaltered, and the chief landlord shall have the same remedy by distress and entry for the rents and duties reserved in the new lease, so far as the same exceed not the rents and duties reserved in the former lease, as he would have had in case such former lease had been still continued. See on the construction of this latter provision. Doe v. Marehetti, 1 B. & Ad. 715 ; and Eeclesiastical Com mission ers v. Treemer, (1893) 1 Ch. 166, 174. The loss of the reversion by merger has now, in certain cases, ceased to operate as an extinguishment of the rent and covenants, by virtue of 8 & 9 Vict. c. 106, s. 9, which enacted that when the reversion expectant on a lease of any tenements or hereditaments, of any tenure, shall be surren- dered or merged, " the estate, whicli shall for the time being confer, as against tlie tenant under the same lease, the next vested right to the same tenements or hereditaments, shall, to the extent and for the purpose of preserving such incidents to, and obligations on, the same reversion, as but for the sin-render or merger thereof would have subsisted, be deemed tlie reversion expectant on the same lease." And the Judi- cature Act, 187B, by s. 25, snb-s. 4, provides that there shall not lie ";in\- nici'gci', by opcriitioii ol' law only, of any estate the beneficial interest i)i which would not be deemed to be merged or extinguished in ecpiity." As to when a lease will nui with reversion . SPENCERS CASK. 6-3 be regarded in equity a,s still subsisting, notwithstanding a legal merger, see Brandon v. Brandon, 31 L. J. Cli. 47. The Conveyancing Act, 1881, provides that rent, and tlie Conveyancing Act 1881 benefit of all covenants by the lessee "having reference to (44'&45Vict. the subject matter " of the lease, and of all c^-iditions, sliall c. 41), s. 10. run with the reversionary estate, notwithstanding severance, ^^f""^fit ^} •'_ . . p covenants and m favour of the person for the time being entitled to the conditions to income of the whole, or part, of the land leased (s. 10); and that the obligation of all covenants by the lessor "' with j^ jj reference to the subject matter" of the lease shall run with oblio-ation of the reversionary estate, or the several parts thereof, notwith- lessS'., as it was not executed till after T. had parted with his interest in the lands to him. The questions, therefore, whether either the benefit or burden of T.'s covenant ran with th(* land, did not arise ; and it might have been supposed that the V.-C, in pronouncing judgment, would have omitted all consideration of them, had it not been that the reporter puts into his mouth the following words: " T.'s covenant to produce does not 7'un with the land." However, in 7 Jarman's Bythewood, p. 375, under the report of Barclay v. Baine, there is the following note : " His Honour latel}" denied his having used the expression here imputed to him ; he did not say that 'H.'^ first covenant did not run with the land {for his Honour thought it clearli/ did), but that the second covenant was restricted to the period of his being mortgagee ; " Rolls, 28th July, 1830. It seems, therefore, that Sir John Leach's private opinion was, that T.'s first covenant did run with the land ; but whether he thought that the benefit of it ran with Whiteacre, or the burden with Blackacre, or that both benefit and burden ran with the land, is left completely in ambiguo. One thing, however, is quite plain, viz., that Barclay v. Baine is no decision on the present question ; since, had his Honour thought that there was a sufficient covenant, and sufficient evidence of its contents, he must have decided in favour of the plaintiffs, and against B., who would then have had no excuse for not completing his purchase. Covenants like that to pay a rent-charge issuing out of Covenants the land have reference to an interest possessed by the stnctT"^ ^*^' covenantee independently of the covenant ; but there are the enjoyment other covenants unconnected with any interest in the land, favour of pel'- such as a covenant by the owner of the land, that it shall so"s having S.L.C. — VOL. I. 6 83 SPENCER S CASE. no property therein. Qucerc, do they run with the land ? Kcppel V. Jiailey. never be built upon, or never be planted, or imposing any other restriction on the mode of its enjoyment, in favour of a per- son having no property therein. The possibility of making these covenants run with land has been questioned, not mereh' on the general ground above stated, namely, that the burden of a covenant cannot run with land except between landlord and tenant, though the benefit may ; but also on the ground that they infringe the rule of law against perpetuities, by tending to impede the free circulation of property. An instance of a covenant of this sort is to be found in a note to Fitzherbert's Natura Brevium, fo. 145, for which he cites the Year-book 4 H. 3, 57, not in print. The note is as follows : — " A man covenants that neither he nor his heirs shall erect any mill in such a place, and an action of covenant is thereupon brought hy the heir, and well." I presume that the words hy the heir signify the heir of the covenantee, and probably the main question in that case was whether the heir, who had perhaps inherited some mill which the covenant was framed to protect, or the executor of the covenantee, should bring the action. It has been remarked by very high authority, that, " in the case cited by Hale (the supposed commentator on Fitz. N. B.), the cove- nant was held to be good ; but that does not go far towards removing the doubt, for that case occurred at a period long before the law of perpetuity was introduced ; " 3rd Report of the R. P. Commissioners, 54. In addition to which it may be observed that, even had the case occurred since the rule against perpetuities, it might not have effectually resolved the doubt as to the operation of that rule, for the action was brought against the covenantor himself, of whose liability there could be no question ; and as the word assigns does not occur in the covenant, it may be doubted whether the assignees would have been bound b}' it, as it can hardly be said to relate to a thing in esse, parcel of the covenantor's land; and if the assignees would not be bound by it, it could have no tendency to impede the circulation of the land, or to create a perpetuity. These subjects were discussed in Chancery in Kejypel v. Bailey, 2 M. & K. 517, where the questions were elaborately argued, and every authority on either side, it is believed, cited, eitlier in the argument or the judgment. In that case E. and J. Keppel, tenants of iron- works under a long lease, covenanted witli the proprietors of a railroad and their assigns, that thoy, their executors, administrators, and SPENCER S CASE. 83 assigns, would procure all tlie limestone wanted for the iron- works from the Trevil quarry, and carry it along the railroad, pa3dng a certain toll. The Keppels assigned their lease of the iron-works to the defendants, who took with notice of the covenant by the Keppels, but began to construct a rjiilroad to other lime-qiuxrries situated eastward of the Trevil quarry. On a bill for an injunction to restrain them from using that or any other new road, it was, among other points, objected to the covenant that it was void, as tending to create a perpetuity, that it was void as in restraint of trade, and that it was not such a covenant as would run with the lands, so as to bind the defendants as assignees of the iron- works. Brougham, L.C., ajjpeared to think that it Such a cove- could not be invalidated on the ground of perpetuity, or of void oiT'nound restraint of trade. On the question of perpetuity, see L. dc of jierpetuity, S. W. JR. Co. V. Gomm, 20 Ch. D. 562, and Mackenzie v. of trade^ ^'^^'^ Chihkrs, 43 Id. 265. Upon*the great question, however, whether the covenant were capable of running with the iron-works, so as to bind the defendants as assignees thereof, his lordship expressed a decided opinion in the negative: — "Assuming that But held not the Keppels covenanted for their assigns of the Beaufort ^^ ^?^ ^^*^ ■•^ ^ , '^ land so as to works, could they by a covenant with persons who had bind assignee no relation whatever to those works, except that of having of covenantor. a lime-quarry and a railway in the neighbourhood, bind all persons who should become owners of those works, either by purchase or descent, at all times, to buy their lime at the quarry, and carr}^ their iron on the railway ; or could they do no more, if the covenant should iiot be kei)t, than give to covenantees a right of action against themselves, and recourse against their heirs and executors, as far as those received assets ? Consider the question first upon principle. There are certain known incidents to property and its en- joyment ; among others, certain burthens wherewith it may be affected, or rights which may be created, or enjoyed with it, by parties other than the owner, all which incidents are re- cognised by the law. But it must not therefore be supposed that incidents of a novel kind can be devised and attached to property at the fancy or caprice of any owner. It is clearly inconvenient both to the science of the law and to the public weal, that such a latitude should be given. There can be no harm in allowing men the fullest latitude in binding themselves and their representatives, that is, their assets, real and personal, to answer in damages for breach of their 6 2 84 SPENCERS CASE. lUtTUlull V. fiujby. Jicdford V. /irilith MuHcum. obligations. This tends to no detriment, and is a reason- able liberty to bestow ; but great detriment would arise, and much confusion of rights, if parties were allowed to invent new modes of holding and enjo3'ing real property, and to impress upon their lands and tenements a peculiar character, which should follow them into all hands, however remote. Every close, every messuage, might thus be held in a diffe- rent fashion, and it would be hardly possible to know what riglits the acquisition of any parcel conferred, or what obli- gations it imposed. The right of way or of common is of a public, as well as of a simple, nature, and no one who sees the premises can be ignorant of what all the vicinage knows. But if one man may bind his messuage and land to take lime from a particular kiln, another may bind his to take coals from a certain pit, while a third ma}' load his with obligations to employ one blacksmith's forge, or the members of one cor- porate body, in various operations on the premises, besides many other restraints, as infinite in variety as the imagina- tion can conceive ; for there can be no reason whatever in support of the covenant in question, which would not extend to every covenant that can be devised. The difference is obviously very great between such a case as this and the case of covenants in a lease whereby the demised premises are affected with certain rights in favour of the lessor. The lessor or his assignees continue in the reversion while the term lasts. The estate is not out of them, though the jDOSsession is in the lessee or his assigns. It is not at all inconsistent with the nature of property that certain things should be reserved to the reversioner all the while the term continues ; it is only something taken out of the demise, some exception to the temporary surrender of the enjoyment. It is only that they retain more or less partially the use of what was wholly used by them before the demise, and what will again be wholly used by them when that demise is at an end." In Randall v. liighy, 4 M. & W. 130, where there was a covenant to pay a pei'petual rent issuing out of land, Parke, B., said: "No doubt this is collateral or in gross in one sense, that it does not run with the land or rent." The question was also discussed^ in Bedford v. British Museum, 2 M. & K. 552, and Collins v. Plumb, IC Ves. 454, but not decided, the parties being left to their legal remedies, if any. Upon the whole, there ajipears to be no authority which has decided, apart from the equitable doctrine of notice, that the burden of a covenant will run with land in an}' case spencer's case. 85 except that of landlord and tenant ; while tlie opinion of Lord Holt in Brewster v. Kitchell, 1 Salk. 197, and of Lord Brougham in Keppel v. Bailey, supra, and the reason and convenience of the thing, all militate the other way. This question was again much considered in Avsterhenij v. Oldham, 29 Cli. D. 750, where all the cases which might seem to countenance the oi)inion that the hurden of covenants between persons other than landlord and tenant could run with the land were reviewed, and the C.A., though not Scmhlc, absolutel}' deciding the point, inclined to the opinion that covenants the burden cannot run except between landlord and tenant, "^loes not mn Li that case A. conveyed to trustees in fee a piece of land tween lessor intended to form part of the site of a road which was pro- ^-nd lessee. posed to be made across the lands of A. and other proprie- ^^'-ff^^c^'"!/ 1 . . ., ^ ^- Oldham. tors who made grants in similar terms, and the trustees, for themselves, their heirs and assigns, covenanted with A., his heirs and assigns, that they would form the land conveyed into a ro^d, to form part of the proposed line of road, and would for ever afterwards maintain the road and every part of it in repair. The road was made, and A. afterwards conveyed to the plaintiff the land abutting on either side of the road. The defendants were the trustees' assigns, and the question was whether the benefit of the covenant to repair ran to the plaintiff and the burden to the defendants. Cotton and Lindley, L.JJ. (the latter not quite so strongly) were of opinion that the benefit did not run to the plaintiff. Fry, L.J., entertained some doubt on this point, inclining to the view that it might. On the question of the burden running to the defendants, Cotton, L.J., did not pronounce a decided opinion, but Lindley and Frv, L.JJ., agreed in holding tliat it did not. It is difficult to conceive any case in which the burden could be held to run if it was incapable of running in this instance, and though the judges guarded themselves from affirming the general proposition, it is submitted that the point is virtually decided b}' this case, and that, except between landlord and tenant, the burden of covenants cannot run with the land at law. See further Bailey v. Stephens, 12 C. B. N. S. 91, prr Willes, J.; Ellis V. BridrpiortJt, 15 Id. 78 ; and Biehavds v. Harper, L. R. 1 Ex. 199, where the majority of tlie court seem to have thought that the burden of a covenant with the owner ot adjacent land, to let him mine there without paying for injury to the covenantor's land, would not run with the land. In Tidk V. MoxJiay, 2 Phil. 774, it was laid down by Lord Doctrine of 86 SPENCERS CASE. notice inde- pendent of question whether cove- nant runs ■with laud. Tulk V. Moxhay. Who are affected by it. Notice. Cottenham, that a covenant made by the purchaser of land that he or liis assigns wouhl use, or abstain from using, the land in a particular way, may be enforced in equity against all purchasers, with notice of the covenant, without reference to the question whether such covenant run with the land or not ; and he there explained Lord Brougham's judgment in Keppel V, Bailey, and stated that this equity is wholly independent of the common law question as to the covenant running with the land. The doctrine of Tulk v. Moxhay has been followed and extended in subsequent cases, and Keppel V. Bailey must now be considered as overruled so far as it ignores the effect of taking with notice of a restrictive covenant; Luker v. Dennis, 7 Ch. D. 227. And, since by the Judicature Act, 1878, ss. 24 and 25, law and equity are to be concurrently administered, and in cases of conflict the rules of equity are to prevail, it seems that, wherever the facts admit of it, these cases must henceforth be decided upon the question of notice alone. This equitable doctrine affects a purchaser of the land, a lessee or sub-lessee of the land, and, where the restrictive covenant has been made in a lease, a sub-lessee of the lessee or of his assignee ; and even a mere occupier will be restrained from breaking the covenant ; Mancler v. Falcke, (1891) 2 Ch. 554. An injunction will . not, however, be granted against an underlessee because his tenant is, against his will, breaking the covenant contained in the original lease ; Hall v. Eicin, 37 Ch. D. 74 ; or against the cove- nantor because his assignee is breaking the covenant ; Clements v. Welles, 1 Eq. 200. A purchaser of land subject to a restrictive covenant, who mortgages part of the land without any express restriction, is not entitled to enforce the restrictive covenant against the mortgagee, though the latter had notice of the restriction ; King v. Dickeson, 40 Ch. D. 596. The land must have been taken with notice of the covenant, either actual or constructive. A lessee has con- structive notice of his lessor's title, and is in a similar position as regards notice as a purchaser. A purchaser or lessee is bound to make reasonable inquiry into the vendor's or lessor's title, that is, to require the usual title whatever the usual title may be. If he have notice of any deed forming part of the chain of title of his vendor or lessor, he lias constructive notice of the contents of such deed, even if he is told that it does not prejudicially affect the title or spencer's case. 87 contain any restrictive covenant ; Patman v. Harland, 17 Ch. D. 353 ; see Cartel- v. Williams, 9 Eq. G78 ; Wilson v. Hart, 1 Ch. 463 ; Clements v. Welles, 1 Eq. 200 ; Feilden v. Slater, 7 Eq. 523. The Conveyancing Act, 1882, s. 3, 45 & 46 Vict. does not affect this question, for sub-s. 2 provides that ^' ' ' nothing in s. 3 shall exempt a purchaser from the obligation of any covenant, etc., contained in any instrument under which liis title is derived. The doctrine of Talk v. Moxhay, however, cannot be It extends extended to other than restrictive covenants. Therefore, restrictive where A. conveyed land to B. to the use that B. should pay coveuants. to A. an annual chief rent, and B., for himself, his heirs, ^^unswick' executors, and assigns, covenanted with A., his heirs, execu- d-c, Society. tors, and assigns, to pay the rent, and to build, keep in repair, and, when necessary, rebuild on the land messuages of the value of double the rent, it was held that an assignee to whom A. had conveyed the chief rent with the benefit of the covenant could not compel B.'s assign, who took with notice, to repair the messuages ; Hai/irood v. Brunsivick Soc., 8 Q. B. D. 403, overruling Cooke v. Chilcott, 3 Ch. D. <)94, so far as it asserts a contrary view. It was also held that the covenant could not be enforced at law apart from the equitable doctrine of notice. In L. ,,^./^,,,,,.g ^^ Biiun, 1 B. (*(: C. 694. The Same point after- wards arose in Martyn v. Williams, 1 H. Sc N. 817, in respect of a licence to dig, work, and search for china clay during a term ; and it was held tliat a covenant by the grantee of the licence to leave the works in repair at the end of the term ran witli the interest ol' tlu; owner of the fee expectant upon spencer's case. 91 the determination of tlie term in the incorporeal right to enter and take the clay, and that the assignee of the fee might sue upon it. In this case the court ohserved that 3'2 H. 8, c. 34, extends in express terms to incorporeal hereditaments With iucoriw- and tenements, and is not confined merel}^ to lands; ],',(!ji|;!i"^^^ '^' accord. Norval v. Pascoe, 84 L. J. Ch. 83, where a similar covenant was held to run with the suhject-matter of the grant. It was once supposed that covenants would not run with Witli estates an estate to which the covenantee is only entitled hy ^ *'^ "^'^^^ ' estoppel; Noke v. Aicder, Cro. Eliz. 48G ; Lyn v. Wyn, O. Bridg. 181; WhitUm v. Peacock, 2 B. N. C. 411. But the contrary was maintained in former editions of this work for reasons which were afterwards adopted and acted upon in C lUhhertson v. Irving, 4 H. & N. 74'2, j)ost. Upon this question, before it had been thus decided, Parke, B., in GouhhicortU v. Knii/hts, 11 M. & W. 337, had expressed an opinion in the affirmative ; and there seemed to be no sound reason why the assignee of a reversion should not establish his title by wa}' of estoppel. An estoppel does not necessarily involve a falsehood. On the contrary, facts are ascertained through the medium of estoppel without reference to the question whether really true or false ; and it would be a sheer fallacy to assume that a fact, established by estoppel, has therefore no real existence. For judicial purposes it ought to be dealt with as if it really existed. It is clear that the assignee of a lessor is entitled to some extent to the benefit of estojipel, and it seems difficult to contend that the law of estoppel, subject of course to all the limitations and exceptions which form part of that branch of the law, does not apply in favour of the assignee, equally in an action of covenant as in an action of ejectment, or of use and occupation; Ileiniie v. lioJuiison, 7 Moore, 639; Gouhhworth \. Knvihts, 11 M. & W. 337. The lessee has (in a case of considerable authority) been held estopped from pleading nil hahuit in tenonentis in au action of covenant at suit of the assignee of the lessor ; Palmer v. Ekins, 2 Lord Baym. 1550; and it seems that lie ought not in such a case to be allowed to plead any plea which would be satisfied by proof simply that tlie lessor had no title when he made the lease. The cases which have been suj)posed chiefiy to coun- tenance a contrary opinion are Noke v. Aicder, Cro. Eliz. 436 ; Whitton v. Peacock, 2 B. N. C. 411 ; and Carvick v. Blagrave, 1 B. & B. 531 ; but the decision in CatJihertsoii v. y. Irving. SPENCEKS CASE. Irving, 4 H. cl' N. 742, 6 Id. 135, renders it unnecessary to examine them at length. In that case the action was by the assignee of the lessor against the lessee upon a covenant to repair, made with the lessor and his heirs. The defendant denied the assignment to the plaintiff, and alleged that the lessor had at the time of the demise no reversion, and that no reversion had vested in the plaintiff. At the trial a special case was stated, by which it ai:)peared that the lessor was without a legal title at the time of making the lease, that the lease did not, in terms, show the contrary, and that the assignment to the plaintifi' disclosed the want of title, but contained apt words to convey a reversion in fee. Upon these facts the court directed judgment for the plaintiff, and stated that in their opinion, " so long as the lessee continues in possession under the lease, the law will not permit him to set up any defence founded on the fact that the lessor nil hahuit in tenementis ; and, upon the execution of the lease, there is created, in contemplation of law, a reversion in fee simple by estoppel in the lessor, which passes by descent to his heir, and b}" purchase to an assignee or devisee." This judgment was affirmed in the Exch. Cham., where reference was made to the discussion contained in this note upon the authorities bearing upon the point. In order to appi'eciate the point actually for the first time decided in this case, it is necessary to consider briefly what was the previous state of the authorities upon this question. In the first place, the very proposition that covenants could not run with an estate to which the covenantee was entitled by estoppel only, in terms excluded the case of a covenant in a conveyance which is effectual at first by estopjiel only, but has subsequentl}' become a valid conveyance in point of interest in consequence of the acquisition of an estate b}' the conveyor. In such a case, it is clear that the assignee of the covenantee, not being entitled "only by estoppel," may sue equally as if the conveyance had from the first transferred an estate in interest. For example, if one having no estate make an ordinary lease by indenture, and subsequently acquire the fee, the lease becomes an estate in interest, and the lessor and his assigns on the one liMiid, ]\'chh v. Avslin, .iiti , may sue on lease has become actually void by the lessor's death ; covenants. yi^drews V. Pearce, 1 B. & P. N. K. 158 ; WilUams v. BurreU, 1 C. B. 402. These cases are referred to only to prevent Secies, where misapprehension. They do not affect the present question, his interest because in them an interest passed by the lease, and there mined at date was no estate, either in interest or by estoppel, at the time of assignment, of assignment. How far the But though it has been decided that the assignee of a lease acts as reversion established by the medium of an estoppel may sue an estoppel. • , , • i i -, ^ upon the covenants m the lease, it must be conceded that the question, to what extent the parties are estopped by the execution of a lease, is one of much nicety, and only to be answered in each case by reference to the terms of the instrument. Can tenancy Akin to this part of the subject is the question revived by suhsistbe- ^1 decision of the Court of Q. B. in Pollock v. Stacij, tween assignee i-/.itii ^ , of whole rcsi- 9 Q. B. 1033, that the relation oi landlord and tenant, due of term pvonei'lv SO Called, can be created between assignor and and a.ssignor ? l-"^"r^ J ' ,. i • • i 5 assignee upon a conveyance oi the entire residue oi a term, there being no reversion either in fact or b}"^ estoppel ; a decision contrary to the opinion expressed by the Court of Exch. in Barrett v. liolph, 14 M. & W. 348 ; see also WoUaston v. Jfakewill, 3 Scott, N. R. 593. The sniiic ([iK^stion liad previously caused a difference of opinion on th(! Irish bench, where the Court of Q. B. liad held that Piack v. Di'Jfjes, 5 Bligh, N. S. 31, had authorita- spencer's case. 9.7 lively settled the question in the negative ; Fawcrtt v. Tlall, Ale. & N. 248; but the Court of Exch. had been of a contrary opinion ; WalsJi v. Feely, 1 Jones, 413, The hitter Court, liowever, " after reviewing all the cases upon the subject, have since concurred with the Queen's Bench," 2 Furlong on Landlord and Tenant, 1121, referring to Porter v. French, 9 Jr. L. II, 514 ; so that both those Courts are now of accord with the (^ourt of Exch. in England. The distinction itself has been abolished in Ireland by 28 & 24 Vict. c. 154, s. 3, which enacts that " the rela- tion of landlord and tenant shall be deemed to be founded on the express or implied contract of the parties, and not upon tenure or service, and a reversion shall not be necessary to such relation, which shall be deemed to subsist in all cases in which there shall be an agreement by one party to hold land from or under another in consideration of any rent." Without professing to discuss the question here, it may be observed that it was not fully argued in either Barrett v. Ralph or Pollock v. Stacy, and that it cannot be considered as settled by the refusal of the rule in the latter case. For that discussion the inquiry must begin earlier than the nisi prius ruling in Poultney v. Holmes, 1 Str. 405, acted upon by the Court of Q. B. The distinction between conveyances by way of subinfeudation, and byway of assignment, of estates in fee (see Wright's Tenures, 156), does not appear to have existed in the case of lesser estates, or to have been acted upon after the statute of quia emptores for any purpose relating to lands of socage tenure, until it was brought back to light in Poultiiey V. Holmes, to meet the supposed hardship of a ])articular case. The authorities collected in the note to IL V. Wilson, 5 M. & Ry. 157, as tending to establish the contrary, seem, even in the opinion of the very learned annotator (see p. 162), to fail in that object. Assuming, for the sake of argument, the position in Poultney v. Holmes to be correct, in what relation do the supposed under-tenant of all the lessee's interest and the superior landlord stand ? May the landlord treat the supposed under-tenant as his tenant, by reason of his having acquired the entire residue of the term '? It will hardly be contended that he cannot ; see Palmer v. Edwards, 1 Doug, 187, n. If he can, then the supposed under-tenant ma}^ hold one and the same land immediately of two several lords, which cannot be, according to Littleton, § 231, and Lord Coke, Co. Litt. 152 b. Perhaps the true distinction may be, between cases where it S.L.C. VOL. I. 7 9^ spencer's case. appears judicially that the entire interest has been conveyed, and cases where, by reason of estoppel, it does not so appear. In Baker v. Gosfling, 1 B. N. C. 19, relied on in Pollock v. Stacy as confirming Poultney v. Holmes, there appears to have been a reversion b}' estojDpel, and, where there is such an estoppel, it is not necessary, as between the parties estopped, to advert to the question whether in fact the instrument operates as an assignment or not. In Cremen v. Haivkes, 2 J. & L. 674, Sugden, L.C., considered that there was no right to sue in equity upon such an instrument, containing express powers of distress and entry, which might be enforced at law; see Doe v. Bateman, 2 B. & Aid. 168. And the remedy for actual use and occupation, though under an invalid assignment, is of course not touched by the above controversy. See further Litt. §§ 214, 215, 216, 231, 232, and the Commentary ; the notes to 2 Wms. Saund., 418, c, d, e, et seq. (p. 834, ed. 1871) ; and a note in Alcock & Napier, 258, containing an opinion of Burton, J., the reasoning in which goes near, if not the whole way, to conclude the discussion. See also Beardman v. Wilson, L. R. 4 C. P. 57, where Pollock v. Stacy is explained. SEMAYNE'S CASE. MICH. 2 JAG. \. — JN THE KING'H BENCH, [UEI'OIITED 5 COKE, 91.] Sheriff when entitled to break doors — Application of maxim, " Every man's house is his castle." In an action on the case by Peter Semayne, plaintiff, and Kichard Gresham, defendant, the case (a) was sucli : the defen- dant and one George Berisford were joint-tenants of a house in Blackfriars in London, for years ; George Berisford acknowledged a recognizance in the nature of a statute-staple (/>) to the plain- tiff, and being possessed of divers goods in the said house died, by which the defendant was possessed of the house by survivor- ship, in which the goods continued and remained ; the plaintiff sued process of extent on the statute to the sheriffs of London ; the sheriff's returned the conusor dead, on which the plaintiff had another writ to extend all the lands which he had at the time of the statute acknowledged, or at any time after, and all his goods which he had at the day of his death ; which writ the plaintiff delivered to the sheriffs of London, and told them that divers goods, wdiich were the said George Berisford's at the time of his death, were in the said house ; and thereupon the sheriffs, by virtue of the said writ, charged a jury to make inquiry, according to the said writ, and the sheriffs and jury accesserniit ad domuni prcedictam, ostio donitis prcedict' apcrto cxlsten' et bonis pvcedictis in pnedicta domo tunc existcn', and they offered to enter the said house, to extend the goods according to the said writ ; and the dQienda,nt, pi-(einissoriim noii ifjiianiH, intending to disturb the execution, ostio prced' domus tioic apevto existen\ clandchat (a) Cb. Ent. 12, pi. 11. Mo. 668. sentient Judges witluliew his opinion ; Yelv. 2S, 29. Cr. El. DOS, 90f>. 2 Roll. see also Croke, 908. Rep. 294. From the Report of this case {h) See an account of this sort of re- in Sir F. Moore, 668, it appears that cognizance, and tlie mode of proceeding there was a division of opinion among thereon, 2 Wnis. ISaund. 217, ed. 1871, the Judges, and that one of the dis- in notis, 7 2 100 semayne's case. contra vicecom' et jurator'' pned' ; whereby they could not come and extend the said goods, nor the sheriff seize them, by which he lost the benefit and profit of his writ, &c. And in this case these points were resolved. 1. That the house of every one is to Jtini as his (c) castle and fortress, as well for his defence against injury and violence, as for his repose ; and although the life of a man is a thing precious and favoured in law ; so that although a man kills another in his defence, or kills ((/) one per infortun', without any intent, yet it is felony, and in such case he shall forfeit his goods and chattels (e), for the great regard which the law has to a man's life ; but if thieves come to a man's (/) house to rob him, or murder, and the owner or his servants kill any of the thieves in defence of himself and his house, it is not felony, and he shall lose nothing; and therewith agree 3 E. 3, Coron. 303 and 305 ; and 26 Ass. pi. 23. So it is held in 21 H. 7, 39, every one may assemble liis friends and neighbours (g) to defend his house against violence : but he cannot assemble them to go with him to the market (/<) or elsewhere for his safeguard against violence : and the reason of all this is, because domus sua cuique est tutissimum refiigium. 2. It was resolved, when any house is recovered by any real action, or by eject' firmce, the shenjf may break the house and deliver the seisin or possession to the demandant or plaintiff, for the words of the writ are Jiabere facias seisinam or possessionem, iCc, and after judgment it is not the house, in right and judgment of law, of the tenant or defendant. 3. In all cases when the king (i) is p>art]i, the sheriff (if the doors be not open) may break the party s house either to arrest him, or to do other execution of the king's jyrocess, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his (c) 3 Inst. 162. Cr. El. 753. 2 Co. {(j) 11 Co. 82 1). lir. Riots, &c. 1. 32 a. 7 Co. 6 a. 8 Co. 126 a. 11 Co. 21 H. 7, 39 a. Fitz. Tiesp. 246. 3 Inst. 82 a. 1 Bulst. 146. Stauf. Cor. 14 b. 161, 162. (il) Co. Lit. 391 a. Halo's PI. Cor. 32. (h) 11 Co. 82 1). 1 Roll. Rep. 182. Stanf. Cor. 1.5 c, 16(1. This iiroposition (i) 0. Henl. 121. 1 P.ulst. 146. Cr. HoeriiH to bo too broailly .stateJ. El. 908, 909. Moor. 606, 668. Yelv. (e) Not .so now; see 24 & 25 Vict. 28, 29. Cr. Car. 537, 538. 3 Inst. 161. c. 100, s. 7 ; 33 & 34 Vict. c. 23. Dy. 36, pi. 40, 12 Co. 131. 4 Inst. (/) 3 Inst. 56. Stanf. Cor. M a. 177. Goldsb. 79. 2 Jones, 233, 234. Cor. 192. 3 E. 3, Cor. 205, 330. I Jr. 4 Leon. 41. 13 E. 4, 9 a. Cor. 100. 1 Roll. H.t]). 182. 22H.8, c. 5. semayne's case. 101 coming, and to make request to open the doors ; iind that appears well by the statute of Westminster, 1, c. 17 (which is but an affirmance of the common law), as hereafter appears, for the law without a default in the owner abhors the destruction or break- ing of any house (which is for the habitation and safety of man), by which great damage and inconvenience might ensue to the party, when no default is in him : for perhaps he did not know of the process, of which if he had notice, it is to be presumed that he would obey it ; and that appears by the book in 18 E. 2 (/.), Execut. 252, where it is said that the king's officer who comes to do execution, &c., may open the doors which are shut, and break them, //' he cannot have the keys ; which proves that he ought first to demand them. 7 E. 3 (Z), 16 : J. beats It. so as he is in danger of death, J, flies, and thereupon hue and cry is made, J. retreats into the house of T., they who pursue him, if the house he kept and defended by force (which proves that first request ought to be made), may lawfully break the house of T,, for it is at the king's suit. 27 Ass. p. 66 : the king's bailiff may distrain for issues (/«) in a sanctuary. 27 (28) Ass. p. 35 : by force of a capias on an indictment of trespass the sheriff may (h) break his house to arrest him ; but in such case, if he breaks the house when he may enter without breaking it (that is on request made, or if he may open the door without breaking), he is a trespasser. 41 Ass. 17 : on issue jomed on a traverse of an office in Chancery, venire facias was awarded returnable in the King's Bench, without mentioning non (o) omittas propV aliqiuini lihertaf ; yet, forasmuch as the king is party, the writ of itself is non omittas yropf aliquam lihertaf. 13 E. 4, 9 : for felony (j)) or suspicion of felony, the king's officer may break the house to apprehend the felon, and that for two reasons ; 1. For the commonwealth, for it is for the commonwealth to apprehend felons. 2. In every felony the king has interest, and where the king has interest the writ is non omittas propter aliquani lihertatem ; and so the liberty or privilege of a house doth not hold against the king. (k) Yelv. 29. 5 Co. 92 b. Cr. El. 248. 909. Moor. 668. (o) Br. Prerogative le Roy, 109. Br. {I) 4 Inst. 177. Franchise, 18. Br. Process, 102. Fitz {m) Br. Distress, 35. Br. Trespass, Prerogative, 21. 151. {p) 13 E. 4, 9 a. Fitz. Bar. 110. 4 {n) Fitz. Trespass, 232. Br. Trespass, Inst. 177. 1 Bulstr. 146. 2 Bulstr. 61. 102 semayne's case. 4. In all cases, wJien tJic door is {q) open, the sherllf' may entei iJtc house, and do execution, at the suit of any subject, either of the hodji or of the (foods ; and so may the lord in, such case enter the house (r) and distrain for his rent or service ; 38 Hen. 6, 26 a ; 8 E, 2, Distr. 21 ; and 33 E. 3, Avow. 256; the lord may distrain in the house, although lands are also held in which he may distrain ; see 29 (s) Ass. 49. But the great question in tliis case n-as, if by force of n capias or fieri facias at the suit of the party the sheriff, after request made to open the door, and denial made, might break the defendant's house, to do execution, if the door be not opened. And it was objected that the sheriff might well do it lor divers causes. 1, Because it is by process of law ; and it was said that it would be granted on the other side, that a house is not a libert}' ; for if a fieri facias or a capias be awarded to the sheriff at the suit of a common person, and he makes a mandate to the bailiff of a liberty who has return of writs, who nullum dcdit respons', in that case another writ shall issue with non omittas propter aliquam lihertatem ; yet it will be said on the other side that he shall not break the defendant's house, as he shall do of another liberty ; for whereas in the county of Suffolk there are two liberties, one of St. Edmund Bury, and the other of St. Ethelred of Ely, suppose a capias comes at the suit of A. to the sheriff of Suffolk to arrest the body of B., the sheriff makes a mandate to the bailiff of the liberty of St. Ethelred, who makes no answer, in that case the plaintiff" shall have a writ of no)i, o)itittas, and by force thereof he may arrest the defendant within the liberty of Bury, although no default was in him. 2. Admit- ting it to be a libert}^ the defendant himself shall never take advantage of a liberty : as if the bailiff of a liberty be defendant ill any action, and process of capias ov fieri facias comes to the sheriff against him, the sheriff shall execute the process against him ; for a liberty is always for the benefit of a stranger to the action. 3. For necessity the slieriff shall break the defendant's house after sucli diniial as aforesaid, for at the connnon law a iiiiui should not have any execution for debt, but only of the (l(;l'cn(lant's goods. Suppose then the defendant would keep all his goods in bis house, the defendant himself, by his own act, {g) 1 lirownl. r>(). (h\ Am:. 486. (s) Br. Disseisor, 52. Fitz. Assize (r) lir. TrespasH, 226. I'.r. Lssuc, 26. 286. Lucas, 290. Cro. Jac. 555. SEMAYNES CASE. lO^i would prevent not onl}^ the plaintiff of his just and true debt, but there would also be a great imputation to the law, that there should be so great a defect in it, that in such case the plaintiff by such shift without any default in him should be barred of his execution. And the book of 18 E. 2 (/), Execut. 252, was cited to prove it, where it is said, that it is not lawful for any one to disturb the king's officer who comes to execute the king's process; for if a man might stand out in such a manner, a man would never have execution, but there it appears (as has been said) that there ought to be request made before the sheriff breaks the house. 4. It was said, that the sheriffs were officers of great authority, in whom the law reposed great trust and confidence, and are to be of sufficiency to answer for all wrongs which should be done; and they had custod'iam comitat\ and therefore it should not be presumed that they would abuse the house of any one, by colour of doing their office in execution of the king's writs, against the duty of their office, and their oath also. But it ic/ih resolved, that it is not lawful for the sheriff {on request made and denial) at the suit of a {u) common person, to break the defendant's house, sc. to execute any process at the suit of ani/ subject : for thence would follow great inconvenience, that men as well in the night (x) as in the day should have their houses (which are their castles) broke, by colour whereof great damage and mischief might ensue ; for by colour thereof, on any feigned suit, the house of any man, at any time, might be broke when the defen- dant might be arrested elsewhere, and so men would not })e in safety or quiet in their own houses. And although the sheriff be an officer of great authority and trust, yet it appears, by experi- ence, that the king's writs are served by bailiffs, persons of little or no value : and it is not to be presumed that all the substance a man has is in his house, nor that a man would lose his liberty, which is so inestimable, if he has sufficient to satisfy his debt. And all the said books, which prove that when the process con- cerns the king the sherift" may break the house, imply that at the {t) Yelv. 29. 5 Co. 91 b. Moor. 668. El. 908, 909. Yelv. 29. Hob. 62, 263, Cr. El. 909. 0. Benl. 121. See 18 E. 4, 264. 4 Leon. 41. 11 Co. 82. March, 3, 4. 4, contra, post, p. 104. 18 E. 4, 4 a. Br. Execut. 100. Br. (m) 1 Jones, 429, 430. 1 Browiil. 50. Trespass, 390. 1 Bulstr. 146. Cr. Jac. 556. 0. Benl. (x) 9 Co. 66 a. Cr. Jac. 280, 486. 121. 4 Inst. 177. Palm. 53. Dyer, 36, pi. Jenk. Cent. 291. Hale's PI. Cor. 45. 41. Moor. 668. Cr. Car. 537, 538. Cr. Owen, 63. 104 SEMAYNES CASE. suit of the party the house may not be broken : otherwise the addition (at the suit of the king) would be frivolous. And with this resolution agrees the book in (?/) 13 E. 4, 9, and the express difference there taken between the case of felony, which (as has been said) concerns the commonwealth, and the suit of any subject, which is for the particular interest of the party, as there it is said. In {2) 18 E. 4, 4 a, by Littleton and all his com- panions it is resolved that the sheriff cannot break the defen- dant's house by force of a fieri facias, but he is a trespasser by the breaking, and yet the execution ivJiich he tlcen doth in the house is good. And it was said that the said book of (a) 18 E. 2, was but a short note, and not any case judicially adjudged, and it doth not appear at whose suit the case is intended, but it is an obser- vation or collection (as it seems) of the reporter. And if it be intended of a Quo (b) minus, or other action in which the king is party, or is to have benefit, the book is good law. 5. It was resolved, that the house of any one is not a castle or privilege hut for himself, and shall not extend to protect any (c) person who flies to his house, or the goods of any other which are brought and conveyed into his house, to prevent a lawful execution, arid to escape the ordinary process of law ; for the privilege of his house extends only to him and his family, and to his own proper goods, or to those which are lawftdly and ivithout fraud and covin there ; and therefore in such cases, after denial on request made, the sheriff may break the house ; and this is proved by the statute of West. 1, c. {d) 17, by which it is declared, that the sheriff may break a house or castle to make replevin, when the goods of another which he has distrained are by him conveyed to his house or castle to prevent the owner to have a replevin of his goods ; which Act is l)ut an affirmance of the common law in such points. But it appears there, that, before the sheriff in such case breaks the house, he ought to demand the goods to be delivered to him : for the words of the statute are, " after that the cattle shall l)e solemnly demanded by the sheriffs," &c. (?/) V, K. 4, 9 a. 5 Co. 92 a. Fitz. 92 b. O. IJcnl. 121. Bar. no. 4 In.st. 177. {<>) Plowd. 208 u. 2 Show. 87. (z) Cro. Eliz. 909. Yolv. 29. V>v. (c) Cr. Car. MA. KxftrMit.ion, 100. 15r. Trespass, 1590. {d) 2 Inst. 192, 193, 194 ; repealed («) 18 E. 2, Exccut. 2.52. Yelv. 29. S. L. K. Act, 1863; S. L. (Ir.) R. Act, Moor. CC8. Cr. El. 909. .'5 Co. 91 1., 1872. semayne's case, ]05 6. It was resolved, admitting that the sheriff, after denial made, might have broke the house, as the plaintiff's counsel pretend he might, then it follows that he has not done his (e) duty, for it doth not appear that he made any request to open the door of the house. Also the defendant, as this case is, has done that which he might well do by the law, scil. to shut the door of his own house. Lastly, the general allegation (/), jjramissorum non innariis, was not sufficient in this case, where the notice of the premises is so material ; but in this case it ought to have been certainly, and directly, alleged ; for, without notice of the process of law, and of the coming of the sheriff with the jury to execute it, the shutting of the door of his own house was lawful. And judg- ment was given against the plaintiff. (c) Stile^ 447. Ilollingsworth v. Brodrick, 7 A. & E. (/) Hard. 2. 1 Mod. Rep. 286. See 40. Although the sheriff", as appears from this case, may Sheriff breaks justify the breaking open the doors of a third 'person's house person's liou.se (after request made) in order to execute the process of ^* ^"^ P^''^^- the law upon the defendant or his property, removed thither in order to avoid an execution, still he does so at his peril ; for if it turn out that the defendant was not in the house, or had no property there, he is a trespasser ; Johnson v. Leigh, 6 Taunt. 246; Rateliffe \. Burton, 3 B. & P. 223, explained in Hutchison v. Birch, 4 Taunt. 619 ; Com. Dig., Execution, C. 5 ; see White v. Wiltshire, Palm. 52, 2 Ptolle, 138 ; Biscop v. White, Cro. Eliz. 759 ; and Cooke V. Birt, 5 Taunt. 765 ; but his right to enter the 15ut not so of defendant's own house does not dei)end on any such contin- defendant's gency, for that is the most natural place for the defendant house. or his goods to be ; and on the same principle, where there is a judgment against an administratrix de bonis testator is, and she marries, the sheriff'may enter her husband's house to search for the testator's goods ; Cooke v. Birt, 5 Taunt. 765 ; and although the sheriff' must not break oiien the outer door Having of the defendant's house in order to execute the process (see break inner Kerbey v. Denlnj, 1 M. & AV. 336), yet, having obtained ^'^°^'^- admission within the house, he mayjustif}'^ the afterwards breaking open inner doors in order to execute the process, 106 SEMAYNES CASE. Sheriff may bi-eak defen- dant's house to retal-r. So, ofliailitf ejected. ScfiMe, slicriff entei'H liousi- of tliird pei'sou at his p-iil. as he may cupboards, trunks, &c. ; Pi. v. Bird, 2 Show. 87 ; Lee V. Gansel, Cowp. 1, where the door of a lodger's room was broken open ; HutcJiisov v. Birch, 4 Taunt. G19, which shows that no request is necessary, before breaking open inner doors; see Ratcliffe v. Pyurtun, 3 B. & P. 223. In Penton v. Broivne, 1 Sid. 186, it was held that a barn or outhouse, not adjoining to or parcel of the dwelling-house, ma}' be broken open in order to levy an execution. Upon this case Bowen, L.J., in American Co. v. Hendry, 68 L. T. 742, said : " The law so laid down appears to me to be a departure from older law. I shoukl, with submission, have myself supposed that the sherifi' in a civil suit had no more right to break a detached inclosure than a landlord's bailiif had." The outer door of a building, of whatever kind, may not be broken to make a distress for rent ; Brown v. Glenn, 16 Q.B.254; American Co. \. Hendry, supra; see Long v. Clarke, (1894) 1 Q. B. 119. If the defendant, after being arrested, escape, the sheriff may break open either his own house or that of a stranger, for the purpose of retaking him; Anon. 6 Mod. 105 ; Lofft, 390 ; see Lloyd v. Sandilands, 8 Taunt. 250; Sandon v. Jervis, E. B. & E. 942; and where a baihff who has entered the house to distrain, or execute pro- cess, is forcibly ejected, he may break open the door in order to re-enter ; Eagletoii v. Gutteridge, 11 M. & W. 465 ; Piigh V. Griffith, 7 A. it E. 827 ; Aga Kwrhoolie Mahomed v. The Queen, 4 Moo. P. C. 239 ; Bannister v. Hyde, 2 E. Ov: E. 627. As already stated, the sheriff cannot justify breaking open the outer door of a stranger's house, unless the defendant or his goods are actually there ; if they be not there he is a trespasser. This doctrine has been carried still farther ; for it has been held that, even though he may have grounds for suspicion, he cannot justify entering the stranger's house although he break no door, iniless the defendant or his goods were actually there. In Cooke v. Birt, 5 Taunt. 765, Dallas, J., said : " The sheriff may enter the house of ;i stranger if the door be open ; but it is at his peril whether the goods be foinul there or not; if they be not, he is a trespasser." 'I'he expressions of Gibbs, C.J., were to the same effect. In Johnson v. LeigJi, 6 Taunt. 246, in trespass for breaking and entering the plaintiff's house, and breaking the inner doors, locks, &:c., the defendant justified entering as sheriff, under ii IcsLatn.m capias against T. 'I., the outer door being o])en, ;iii(I there being reasonable and sufficient cause to suspect jiiid l)elievc, and the defendant suspecting and believing, that SEMAYNE S CASE. 107 T. J. was in the house. On demurrer, the plea was held to he bad, and Gibbs, C.J., said : "In TIiitc]m<»i v. Bircli, 4 Taunt. Gil), the goods were in the house ; here the defendant only avers a suspicion that T. J. was in the house : I protest that the court have not decided this point, or dropped, in the case of Iltitdiisoii v. Bircli, an3'thing which favours the opinion, that it may not go abroad to the world that we have so decided." However, it is apprehended that circumstances might Uuless exist, under which the sheriff would be justified in entering actuilllv'resi^ a stranger's house on suspicion, though the defendant were dent there. not actually there. For instance, if the defendant were on a visit with the stranger, the stranger's dwelling-house would seem to be, jjro tempore, the defendant's dwelling-house, so as to entitle the sheriff to enter it, upon the principle, on which Cooke v. Birt was decided, of its being the place where it would be natural to expect the defendant, or his goods, to be. I have seen a plea framed on that idea ; and indeed the point was virtually so ruled hy Sheers v. Brooks, 2 H. Bl. 120, where it was held, that, when the defendant resided in a stranger's house, the bail above might justif^^ entering it in order to seek for him, the outer door being then open ; for, said Lord Loughborough, " I see no difference between a house of which he is solely possessed, and a house in which he resides with the consent of another;" but the defendant must at least be residing in the stranger's house at the time ; Moorish v. Murrey, 13 M. & W. 52, where a plea that " for six months next preceding the tres- passes," the defendant "had resided" in the plaintiff''s house, was held insufficient, even after verdict. It seems to ScmlAe, in follow from this, that, as a house in which the defendant siieriff^mav habitually resides is on the same footing with respect to not break." executions as his own house, the sheriff would not be justified in breaking the outer door of such a house even after demand of admittance and refusal. There may, perhaps, be another case in which the sheriff might justify entering a stranger's house, upon bare suspicion ; viz., if the stranger were to use fraud, and to inveigle the sheriff into a belief that the defendant Scmbic, ontiy was concealed in his house, for the purpose of favouring his l"^^,^''J"''''V escape, while the officers should be detained in searching, or of stranger, for any other reason, it might be held that he could not take advantage of his own deceit so as to treat the sheriff, who entered under the false supposition thus induced, as a tres- passer ; or, perhaps, such conduct might be held to amount 108 SEMAYNES CASE. What is an entry without breaking. to a licence to the sheriff to enter ; see Price v. Harwood, 3 Camp. 108 ; Walker v. Willoughby, 6 Taunt. 530 ; and an anonymous case in Chitty's Gen. Prac. of Law, 1st ed. vol. 3, p. 354, n. x. As to the means by wliich an entry may be effected with- out being considered a breaking of the door, it has been held that a landlord may, in order to make a distress, open the outer door " in the ordinary way in which other persons can do it, when it is left so as to be accessible to all who have occasion to go into the premises," e.g., by pulling out a moveable staple, lifting a latch, or turning a key left in the door; and the court in so deciding questioned the authority of the passage in Com. Dig., Execution. C. 9, that a sheriff cannot open the outer door, though it be only latched, and said that at all events that passage only applied to a dwelling- house ; Ryan v. Shilcock, 7 Exch. 72, more fully reported 21 L. J. Ex. 55. In Curtis v. Hubbard, 1 Hill's New York R. 337, on the other hand, it was laid down that to make the sheriff a trespasser, it is enough that the outer door be shut ; that merely opening is a breaking in law ; that lifting a latch is as much a breaking in law as the forcing of a bolted door ; and that whatever would be a breaking in burglary would be a breaking by the sheriff. It seems not altogether easy to reconcile the dicta in litjan v. Shilcock with the cases as to burglary (collected in Archbold, 21st ed., 576). If a pane in a window of the house is broken, but not by the officer, he may lawfully put his hand through the aperture in order to make the arrest ; Sandon v. Jervis, E. B. & E. 942. If the window be shut, but not fastened, it may not be opened for the purpose of distraining ; and therefore where a man employed by the landlord upon the premises (but not for the purposes of a distress) had at the broker's suggestion effected an entrance from the area by opening a window, which was shut but not fastened, and then opened the front door to the broker, it was held that the entry must be taken to be all one act, and was unlaw lid ; Akisii v. Lueas L. K. 2 Q. B. 590 ; but entry may be lawfully made for the purpose of distraining by further opening a window alrcad}^ partially open ; Crabtree v. liobiiison, 15 Q. B. D. 312; or by climb- ing over tlie curtilage wall and then entering the house by an open window; Long v. Clarke, (1894) 1 Q. B. 119, approving of Eldridge v. Staccij, 15 C. B. N. S. 458, and not Scol.t v. Buckley, IG L. T. 573. In Long v. Clarke the C.A. hchl that to climb over a wall was not to break in, 8EMAYNE S CASE. 109 Lord Fisher saying: "I see no difference between getting over a wall to get into the curtilage and getting on to the wall of the house in getting in at a window in it, and it seems to nie to bo plain that if a landlord can get into a curtilage without breaking anything he may do so, just as he can get into a window on the same conditions." The distinction taken in tlu^ principal case between process at the suit of the king and that of an individual, is recognised in Burdett v. Abbot, 14 East, 157 ; Laimock v. Brown, 2 B. 6 Aid. 592 ; 2 Hale, P. C. 117 ; Foster on Homicide, p. 320. The sheriff may break open outer doors, to execute a writ of attachment issued for disobedience to au order of court directing delivery up of documents ; Harvey v. Harvey, 26 Ch. D. 644, where the distinction was made between attach- ment as an ancillary remedy for compelling payment of money, and attachment for disobedience to an order other than for payment of money, as the latter partakes of a criminal » character ; see Re Frestoii, 11 Q. B. D. 545; lie Dudley, 12 Id. 44. It is laid down in the text, that, before the sheriff breaks the outer door of a stranger's house, in those cases in which he has a right to do so, he ought to demand admission ; and this is also necessary when he breaks oj^en the defendant's own outer door in order to execute the i)rocess of the Crown ; Launock v. Brown, 2 B. & Aid. 592 ; even in case of felony, 2 Hale, P. C. 117 ; Foster on Homicide, 320 ; or in order to retake the defendant after an escape ; see Genner v. Sparkes, 1 Salk. 79; White v. Wiltshire, 2 Rolle's Rep. 138, see Palm, 52, where the bailiffs were imprisoned, and the door broken to rescue them. On a similar principle, in De Gondouin v. Lewis, 10 A. & E. 117, the court thought that before seizing contraband goods from the j^erson the officers ought to demand them. But though it was said in RatcUffe V. Burton, 3 B. & P. 223, that adnnssion should be demanded before breaking an inner door, the contrary was decided in Hutchison v. Bireh, 4 Taunt. 619. In Puyh v. Griffith, 7 A. & E. 827, the sherifi''s officer, under a Ji. fa., had lawfully entered a house and seized goods there, and the outer door being locked upon him, he was held justified in breaking' it open to carry away the goods, there being no one whom he could request to open it. In Sandon v. Jervis, E. B. & E. 935, 942, where the sheriff's officer was held justified in breaking open the outer door after having arrested the plaintiff" under a ca. sa. by touching him through a hole Distinction between pro- cess at suit of king and pri- vate person. Necessity for previous demand. None as to inner doors. i'reakinrr out. Breaking in after arrest. 110 SEMAYNES CASE, Breaking to re-enter. Rules laid down in Foster on Homicide. in a window of the house, it is not stated whether or no there had been any demand of entry. In Aga Kurhoolie Mahomed v. The Queen, 4 Moo. P. C, 239, a sheriff's officer in the execution of a bailable writ lawfully entered a house, but before he could arrest was forcibly expelled ; he obtained assistance, and without demand of re-entry, broke open the outer door, re-entered, and made the arrest, and he and his assistants were held justified ; and I^ord Campbell, in deliver- ing the judgment, said : " The outer door being open, they were entitled to enter the house under civil process, and they being lawfully in the house to arrest him, he was guilty of a trespass by expelling them. The act of locking the outer door was unlawful, and he could confer no privilege upon himself by that unlaw^ful act." The law upon this subject is well, and at the same time briefl}^ summed up by Sir Michael Foster, in his Discourse of Homicide, pp. 319, 320, as follows : — " The officer cannot justify breaking open an outward door or window in order to execute process in a civil suit. If he doth he is a trespasser. But if he findeth the outward door open, and entereth that way, or if the door be opened to him from within, and he entereth, he may break open inward doors if he findeth tliat necessary- in order to execute his process. . . . " The rule, that ' every man's house is his castle,' when applied to the case of arrests upon legal process, hath been carried as far as the true principles of political justice will war- rant, perhaps be3'ond what, in the scale of sound reason and good policy, they will warrant. . . . But this rule is not one of those that will admit of any extension. It must, therefore, as I have before hinted, be confined to the breach of windows and outward doors intended for the security of the house against persons from without endeavouring to break in. " It must likewise be confined to a breach of the house in order to arrest tlte occujner or any of his family who have their domicile, their ordinary residence there. For if a stranger whose ordinary residence is elsewhere, upon a pur- suit, taketli refuge in the house of another, this is not his castle, he cannot claim the benefit of sanctuary in it." See Watson on the Office of Sheriff, 2iid ed., 128. " The rule is likewise confined to the case of arrests in the first instance ; for, if a man being Icgall}' arrested (and lay- ing hold of the prisoner and pronouncing the words of arrest is an actual arrest), escapeth from tiie officer and taketh shelter, semayne's case. Ill though in his otvn Jiouse, the officer may, upon fresh suit, Rules laid break open doors in order to retake him, having first given poster' on due notice of liis business and demanded admission, and been Homicide, refused. " And let it be remembered that not only in this, but in every case where doors may be broken open in order to arrest, whether in cases criminal or civil, there must be such notification, demand, and refusal, before the parties concerned proceed to that extremity. " The rule already mentioned must likewise be confined to the case of arrests upon process in civil suits ; for, where a felony hath been committed, or a dangerous wound given, or even where a minister of justice comes armed with pro- cess founded on a breach of the peace, the party's own house is no sanctuary for him ; doors may in any of these cases be forced ; the notification, demand, and refusal before mentioned having been previously made. In these cases, the jealousy with which the law watches over the public tranquillity (a laudable jealousy it is), the principles of political justice, I mean the justice which is due to the community ne maleficia remaneant imjjunita, all conspire to supersede every pretence of private inconvenience, and oblige us to regard the dwellings of malefactors, when shut against the demands of public justice, as no better than the dens of thieves and murderers, and to treat them accord- ingly. But bare suspicion touching the guilt of the pai'ty will not warrant a proceeding to this extremity, though a felony hath been actually' committed, unless the officer cometh armed with a warrant from a magistrate, grounded on such suspicion." It is laid down in the principal case that the sheriff Dociiiue that breaking an outer door to do execution "is a trespasser by tood"tiu"u'li the breaking, and yet the execution w^iich he then doth sheritfa in the house is good." The authority referred to for this ^^^P'**^'-'' • proposition is the Year Book, 18 E. 4, Pasch. 4 a. In that case, ai'tev Ji. fa. issued, the defendant locked up all his , goods in his house, whereupon the shcrilf broke open the outer door of the house, entered, and seized the goods ; and the question, which appears to have been raised on a motion, though the form of the proceeding is not distinctly stated, was, whether the sheriff had done any wrong or not. " Lit- tleton and all his companions held, that the party ma}-- have a writ of trespass against the sheriff for the breaking of the house, notwithstanding this fi.fa., for the Ji. fa. shall not 112 SEMAYNES CASE. Semble, true a^ to goods. But court may exercise its summary jurisdiction to avoid exe- cution. Sfiiihlr, arrest of pciKrin void. excuse him of the breaking of the house, but of the taking of the goods onl}-." It is laid down accordingl}^, in Bac. Abr., Execution (N), on the authority of the principal case, " that if the sheriff in executing a writ break open a door, where he has no authority for so doing b}^ law, yet the ex- ecution is good, and the party has no other remedy but an action for trespass against the sheriff'." This, so far as relates to an execution against goods, is consistent with the doctrine acted upon by the Q. B. in De Gondonin v. Leicis, 10 A. & E. 117, where a custom-house officer, without demand, or any circumstance to jvistify the use of force, violently took contraband goods out of the plaintiff's hands. An action of trespass was brought for the seizure, but not for the assault. The court held that the fact of the goods being forfeited was an answer to the action, notwithstanding that, if the plaintiff' had sued for the assault, there would have been no justification. And the reason of the thing, as well as the authority of Coke and of Littleton, seems to be with the decisions, for the execution creditor not taking part in the execution has been guilty of no wrong, and the maxim nullns commodum capere 'potest de injuria sua liroprid (see Co. Litt. 148 h) is therefore not violated by holding so much of the acts of the sheriff* as was for the benefit of the execu- tion creditor valid, and the rest illegal. However, according to Bac. Abr., Execution (N), in Yates v. Dekunai/ne, T. T. 17 G. 3, " the court set aside an execution levied on defen- dant's goods in his dwelling-house, because the officer forcibly broke into the house to execute the writ." That case, though hard it may be considered, if interfering with a strict legal right of the execution creditor, is perhaps not irre- concilable with the doctrine under discussion ; because it is quite consistent with the validity of the execution in j)oint of law, that the court, to jjrevent abuse of its process and danger of collusion between execution creditor and sheriff, should, in the exercise of its summari/ jurisdiction, undo the proceedings, according to the principle acted on in Barratt V. Price, 9 Bing. 56G, and other cases, and recognised in Hooper V. Lane, 6 H. L. C. 443. It was tlie practice, in like manner, to discharge persons taken under process against tlie person by means of an illegal entrj into a dwelling-house ; Hodgson v. Towning, 5 Dowl. 410 ; and there is authority for saying that an arrest of the j^o'son. by means of an illegal breaking of the outer door, is altogether void, and that the sheriff is liable, in case of such arrest, not merely for the semayne's case. lis breaking and entering of the house, but also for the assault and imprisonment ; see Kerhy v. Denhy, 1 M. & W. 336 ; but 32 cV 33 Vict. c. 62, which abolished imprisonment for debt, except in certain s})ecial cases, rendered this point less likely to arise. The effect, upon the seizure of tlie goods, of a previous illegal entry was touched upon, biit not decided, in Bruns- iviclc V. Slowman, 8 C. B. 317, and in Percival v. Stamx), 9 Exch. 167, which latter case seems to be an authority in favour of the view that the execution is valid. It may here be added, that in a case like Yates v. Dela- Effect of mayne, supra, inasmuch as the seizure by the sheriff under sdzure L*'^^'^ Siji.fa. of goods to the value of the judgment debt is said satisfaction, to operate by way of satisfaction {Wilhraham v. Snoiv, 2 areTestoi-e/ Wms. Saund., ed. 1871, p. 87, n. (Ij ; and jjtc?- cur., Holmes to debtor. V. Neuiands, 5 Q. B. 367), a question may arise as to the position of the execution creditor, upon an application by the judgment debtor to have all proceedings on the judg- ment stayed, after the execution has been set aside and the goods ordered to be restored to the execution debtor. Probably such an application would be refused, after the judgment debtor had succeeded in getting the execution set aside and the goods restored. If not, the alternative would be, to hold the sheriff liable to the execution creditor as upon a lawful seizure ; and indeed in such a case it would perhaps be difficult to suggest what valid defence the sheriff could make. It would, however, be a wild sort of justice to make him pay the debt and costs by way of additional punishment of his illegal entry, for which he would, at all events, be liable to answer in damages to the debtor. At least it would seem that the jurisdiction exercised in Yates V. Delamayne, except in cases where the execution creditor has employed a special bailiff', or been privy to the illegal entry, ought to be administered with great caution. It is, however, said by Holt, C.J., in Clerk v. Withers, 6 Mod. 293 (to which the above note in Wms. Saund. refers), that the seizure does not discharge the debtor if the execution is afterwards avoided. The taking of a debtor's person on a ca. sa., though operating as an election binding the creditor to proceed only by that means, was not an absolute extin- guishment of the debt; see Thumpson v. Parish, 5 C. B. N. S. 685 ; Taylor v. Waters, 5 M. & S. 103 ; Foster v. Jackson, Hob. 59; Woodward v. Pell, L. R. 4 Q. B. 58; nor did such taking and subsequent discharge destroy an attorney's S.L.C. VOL. I. 8 114 SEMAYNE S CASE. lien for costs ; O'Brien v. Leicis, 32 L. J. Ch. 665 ; and 32 & 33 Vict. c. 62, which abolishes impi-isonment for debt generally, but creates, by s. 5, a i:)Ower of committal for certain classes of debts, under certain conditions, provides that no imprisonment under that section "shall operate as a satisfaction or extinguishment of an}'' debt or demand, or cause of action, or deprive any person of the right to take out execution against the lands, goods, or chattels, of the person imprisoned in the same manner as if such imprison- ment had not taken place " (s. 5, sub-s. 2). The sheriff The case of Hooper v. Lane, 6 H. L. C. 443, decided o'r^detain a^^ that the sheriff cannot arrest or detain a debtor already in debtor already custod}' on an invalid writ ; see Ockford v. Freston, 6 H. & N. ln^invS°'' 466; but also Batcman v. Freston, 30 L. J. Q. B. 133; writ. ExiJ. Freston, 30 L. J. Ch. 460. CA LYE'S CASE. PASCII. 2G ELIZ.—IN THE KING'S BENCH. [i;ei'Okted 8 cokk, 32.] Liability of Innkeepers. It was resolved, per totam curiam, that if a (a) man comes to a common inn, and delivers his horse to the hostler, and requires him to put him to pasture, which is done accordingly, and the horse* is stolen, the innholder shall not answer for it; for the words of the writ which lieth against the hostler are Cam secundum legem et coiisiietiLd' regni iiostri Ainjlue (b) hospitatores, qui hospitia com^ tetient ad huspitandos Jwuiines, per partes iihi hujusmodi hospitia cxistunt transeuntes, et in eisdem hospitantes, eorum bona et catalla infra hospitia ilia existentia absque subtrac- tione sen amissione custodire die et nocte tenentur, ita quod pro defectu hujusmodi hospitatorum, sen servientium suorum, liospitibus liujusmodi damnum non ereniat ullo modo : quidam malefactores quendam equum ipsius A. precii 40s. infra liospitium ejusdem B., dc, inventum pro defectu ipsius B. ceperunt, d-e. ; sea Ilegistr., fol. 105, inter Brevia de Transf/r', and F. N. B. 94 a, b ; by which original writ {wliieh is in such case tlie (jrouiid of tJie common law) all the cases concerning hostlers may be decided. For, 1, It ought to be a (c) common inn ; for if a man be lodged with another (who is not an innholder) upon request, if he be robbed in his house by the servants of him who lodged him, or any other, he shall not answer for it ; for the words are hospita- tores qui coni hospitia tenent, dc. And so are the books in {d) (a) 1 lioll. 3, 4. 4 Leon. 96. 2 3 Keb. 73. Dyer, 266 b. Browul. 255. (c) 1 Roll. 2, (D.) 1. Dr, & Stud. 137 {b) riowd. 9 b. The register is falsely b. Hob. 245. printed, scilicet, distractioue [no sub- {d) Fitz. Hosteler, 2. Br. Action s ir tractione. F. N. B. 94 a, b. Book of le Case, .'iS Entries, Hosteler, 365, 377. 1 And. 29. 8 2 116 calye's case. 22 Hen. 6, 21 b, (c) 38 ; (/) 2 Hen. 4, 7 b ; (//) 11 Hen. 4, 45 a, b; {h) 42 Ass. pi. 17 ; (i) 42 E. 3, 11 a; 10 El. {k), Dyer, 266; 5 Mar., Dyer, 158 (Z). And the writ need not mention that the defendant keeps commune hosintium, for the words of the writ in the Kegister are ivfra Jiospitium ejiisdein B. ; but it is to be so intended in the writ ; for the recital of the writ is, hospitatores qui communia liosintia tenent, dc, and the one part ought to agree with the other, and the latter words depend on the other ; and the plaintiff ought to declare that he keeps commune hospitium : and so the said books in {m) 22 Hen. 6, 21, {ii) 11 Hen. 4, 45 a, b, 10 Eliz., Dyer (o), 266, &c., are well reconciled. 2. The words are ad Iwspitandos homines, per imrtes nhi hiijus- modi hospitia existunt trcmscuntes, et in eisdem hospntantes ; by which it appears that common inns are instituted for passengers and wayfaring men ; for the Latin word for an inn is diver- sorium, because he who lodges there is quasi divcrtcns se a via; and so diversoriohim. And therefore, if a (p) neighbour, who is no traveller, as a friend, at the request of the innholder lodges there, and his goods be stolen, &c., he shall not have an action ; for the writ is ad hospitandos homines, d'c, transcuittes, in eisdem hospitantes, dx. 3. The words are, eorum bona et catalla infra hospitia ilia existentia, dx. So that the innholder, by law, shall answer for nothing that is out of his inn, but only for those things which are infra hospitium. And because the horse which at the request of the owner is put to pasture, is not iiifra hospitium, for this reason the innholder is not bound by law to answer for him, if he be stolen out of the pasture ; for the thing with which the hostler shall be charged ought to be infra hospitium ; and there- with agree the books in {q) 11 Hen. 4, 45 a, b ; 22 Hen. 6, 21 b; 42 E. 3, 11 a, b; 42 Ass. pi. 17, where Knivet, C.J., saith, that (c) 22 Heu.i6, 38 b. Fitz. Hostuler, Case, 6. . Br Action sur le Case, 59. (k) Dyer, 266, pi. 9. 3 Keb. 73. (/) Fitz, Ho.steler, 4. Br. Action sur {I) Dyer, 158, \A. 52. 1 And. 29, 30. le Case, 28. Br. Action sur le Statute, 3 Keb. 73. 1 Roll. 3, 4. yy. {'in) Fitz. Hosteler, 2. Hr. Action sur (jj) Br. Action sur le Case, 41. Br. le Case, 58. GcneralJJricf, 16. Fitz Hosteler, 5. («) 1 Roll. 4. Br. Action sur le Case, (A) Br. Action sur le Case, 86. Palm. 41. Br. Gen. Brief, 16. Fitz. Hosteler, 5. 628. 1 Roll. 3. (o) Dyer, 226, pi. 9. 3 Keb. 73. (t) Fitz. lIuHteler, 6. Br. Action .sur {]') 1 Roll. 3, (E.) 4. 2 Browul. 254. lo Ca.'^e, 15. Statham, Action sur le ('/) 1 Roll. 4. calye's case. J 17 the innholder is bound to answer for himself, and for his family, of the chambers and stables, for the}^ are infiu hosjntiunt. And with this resolution in this point agreed the opinion of the Justices of Assize {viz., the two Chief Justices Wray and Anderson) in the county of Suffolk in Lent vacation, 26 Eliz., that if an (/•) innholder lodges a man and his horse, and the owner requires the horse to be put to pasture, and there he is stolen, the innholder shall not answer for him. (s) But it was held by them, that if the owner doth not require it, but if the innholder of his own head puts his guest's horse to grass, he shall answer for him if he be stolen, Sec. And it is to be observed, that this word hostler is derived from hostle ; and liosjiitator, which is used in writs for an innholder, is derived from hosjntio, and hosjjes est quasi hosj^itium ■petcns. 4. The words are ita quod jyro defectu hospitator\ sen ser- vientvun sKoriun, i(:c., hospitibus livjusniodi damn' non eveniat, (tc. ; by which it appears that the innholder shall not be charged, unless there be a default in him or his servants in the well and safe keeping and custody of their guest's goods and chattels within his common inn ; for the innkeeper is bound in law to keep them safe without any stealing or purloining ; and it is no excuse for the innkeeper to say that he delivered the (t) guest the key of the chamber in which he is lodged, and that he left the chamber-door open ; but he ought to keep the goods and chattels of his guest there in safet}- ; and therewith agrees 22 Hen. 6, 21 b ; 11 Hen. 4, 45 a, b ; 42 Edw. 3, 11 a. And although the guest does not deliver his goods to the mnholder to keep, nor acquaints him with them, yet if they be carried away, or stolen, the innkeeper shall be charged, and therewith agi'ees 42 Edw. 3, 11a. And although they who stole or carried away the goods be unknown, yet the innkeeper shall be charged ; 22 Hen. 6, 38 ; 8 E. 2, Hostler, 7 ; ride 22 Hen. 6, 21. But if the guest's servant, or he who {a) comes with him, or he whom he desires to be lodged with him, steals or carries away his goods, the innkeeper shall not be charged ; for there the fault is in the guest to have such a companion or servant ; and the (r) 1 Roll. 3, 4. 4 Leou. 96. 2 Brownl. {i) Moor. 78, pi. 207 ; 158, pi. 299. 255. 2 Brownl. 255. (See L. R. 6 C. P. 520. ) (s) 1 Roll. 3, 4. 4 Leon. 96. 2 Brownl. [u) Cro. El. 285. 225. l]8 calye's case. words of the writ are, pro defectu liosjntator' sen servientium suorum ; vide 22 Hen. 6, 21 b. But if the innkeeper appoints one to lodge with him, he shall answer for him, as it there appears. The innkeeper {x) requires his guest that he will put his goods in such a chamber under lock and key, and then he will warrant them, otherwise not, the guest lets them lie in an outer court, where they are taken away, the innkeeper shall not (//) be charged, for the fault is in the guest, as it is held 10 Eliz., Dyer, 266. 5. The words ave liospitihus dammnn non evcniat; these words are general, and yet forasmuch as they depend on the precedent words they will produce two effects, viz., 1. They illustrate the first words. 2. They are restrained l)y them : for the first words are, corum bona ct cataV infra hospitia ilia existentia absque subtractione citstodire, cCx., which words bona ct cafalla, by the said words ita quod, dr., liospitibiis damnum non eveniat, although they do not of their proper nature extend to {z) charters and evidences concerning freehold or inheritance, or (a) obliga- tions, or other deeds or specialities, being things in action, yet in this case it is expounded by the latter words to extend to them (b) ; for by them great damages happen to the guest ; and therefore if one brings a bag or chest, &c., of evidences into the inn, or obligations, deeds, or other specialities, and by default of the innkeeper they are taken away, the innkeeper shall answer for them, and the writ shall be bona et catalla generally ; and the declaration shall be special. 3. These words, bona et catalla, restrain the latter words to extend only to moveables ; and therefore, by the latter words, if the guest be beaten in the inn, the innkeeper shall not answer for it ; for the injury ought to be done to his moveables, which he brings with him ; and by the words of the writ, the innholder ought to keep the goods and chattels of his guest, and not his person ; and yet in such case of battery, Jiospiti damnum crenit, but that is restrained by the former words, as hath been said. And these words aforesaid, absque siiblrartlone sen. amissione, extend to all moveable goods, although of them fcilony cannot ])o committed ; for the words are (x) Moor. 1:'8. CS. (y) F/V/rSalk. 19. (//) Spo, Thrrfall v. JJuru-ick, L. R, 7 (z) 2 ]U,U. r,H. 22 E. 4, 12 a, h. Q. 15. 71], 10 id. 210. (a) I)y. .';, pi. 2. 2 Koll. 58. Vulv. CALYES CASE. 119 not absque felonicd captionc, etc., but absque subtractione, which may extend to any moveables, although of them (c) felony cannot be committed, as of charters, evidences, obligations, deeds, specialities, &c. (If a horse is at livery, and eats more than he is worth, an action lies against the owner ; but the horse cannot be used or sold, Moore, 876, 877 ; but by the custom of London and Exeter the horse may be sold; but see Popham, 127, Robinson v. Walter (d).) (c) 3 Inst. 109. 10 E. 4, 14 :i. Fitz. (d) See now 41 & 42 Vict-, c. 38, ;>«/!, Endict. 19. Br. Coron. 15.5. See now p. 126. 24 & 25 Vict. c. 96, ss. 1, 27, 29, 30. This is the leading case upon the subject of the liabilities of innkeepers in respect of their guests' property. Those liabilities have been limited bv the Innkeeper's Liabilitv '-6 & 27 Vict. "^ . ..." c 41 Act, 1863. This Act saves an innkeeper from liability to ^' make good to any guest any loss of or injury to property, brought to his inn, not being a horse or other live animal, or any gear appertaining thereto, or any carriage, to a f/reater amount than 30Z., except: (1) where the property has been stolen, lost, or injured, through the wilful act (" wilful " applies to " act" only. Squire v. Wheeler, 16 L. T. 93), or the default, or neglect of the innkeeper, or any servant in his employ : or (2) where the property has been deposited expressly for safe custody with the innkeeper ; provided that in case of such deposit he may require as a condition of his liability that the property be deposited in a box or other receptacle, fastened and sealed by the person depositing it (s. 1). An innkeeper, however, is not entitled to the benefit of the Act in respect of property which he refuses to receive for safe custody, or which the guest is unable through the innkeeper's default to deposit (s. 2) ; or in § 2. respect of property brought to his inn while there is no copy of s. 1 of the Act, printed in plain type, exhibited in a conspicuous part of the hall or entrance to his inn (s. 3). §3. Where the word "act" after " wilful " was omitted from the copy which was exhibited, the copy was held not to be sufficient; Spice v. Bacon, 2 Ex. D. 463; in which case it was doubted whether " a mere clerical error " would make the copy insufficient. Sect. 4 defines " inn" and "innkeeper." §4. CALYES CASE. In a case subsequent to Calye's, a factor lost goods at an inn out of a private room, chosen by him, and granted to him b}' the innkeeper, for the purpose of exhibiting his goods to customers. The innkeeper had told him that there was a key and that he might lock the door, but this he neglected to do, although, on two occasions, while he was showing goods to a customer there, a stranger put his head into the room. Richards, B., told the jury that 2))'iind facie the innkeeper was answerable for the goods of his guest in his inn, but that the guest might, by his own conduct, dis- charge him from responsibility, and left it for them to say whether he had done so here : the jury found that he had : and, on motion for a new trial, the court approved of the direction and thought the verdict correct. " The law," said Lord Ellenborough, " obliges the innkeeper to keep the goods of persons coming to his inn, causa Iwspitandi, safely, so that, in the language of the writ, pro defectu hospitatoiis hospitibus damnum non eveniat ullo modo .... But there may no doubt be circumstances, as where the guest, by his own misconduct, induces the loss, which form an exception to the general liability, as not coming within the words pra defectu hospitatoris. Now, let us consider, 1st, whether the plaintiff came to the inn caiisa hospHandi ; and, 2ndly, whether by his conduct he did not induce the loss. It does not appear whether he had a sleeping-room, but I think we may presume he had, but he desires a private room up some steps in order to show his goods. Now, an innkeeper is not bound by law to find show-rooms for his guests, but only convenient lodging-rooms and lodging. As to what is laid down in Calye's Case respecting the delivery of the key to the guest, it plainly relates only to the chamber-door in which he is lodged ; and I agree that if an innkeeper gives the key of the chamber to his guest, this will not dispense with his own care, or discharge him from his general responsibility as innkeeper. . . . " The cases," continued his lordship, " show that the rule is not so inveterate against the innkeeper, but that the guest may exon('rat(! him b^'^ his fault, as if the goods are cjirried away by the guest's servant, or the companion whom he brings with liim, for so it is laid down in Calye's Case. Now, what is th(i conduct of the phiiiitilf in this case ? The innkeeper not being bound to find him more than lodging, and a convenient room for refreshment, this docs not satisfy his object, but he inquires for a third room, for the purpose calye's case. 121 of exposing in it his wares to view, and introducing a Burgess v. . ,. 11-1 1 Clements. number oi persons over whom the innkeeper can liave no check or control, and thus for a purpose wholl}^ ahen from tlie ordinary puri)ose of an inn, which is ad Jiospitandos homines. Therefore, the care of these goods hardly falls within the limits oi' the defendant's duty as innkeeper. Besides, after the circumstances relating to the stranger took place, whicli might well have awakened the plaintiff's sus- picion, it became his duty, in whatever room he miijht he, to use at least ordinary diligence ; and particularly so, as he was occupying the chamher for a special purpose : for thotujJi, ill. (jeneral, a traveller who resorts to an inn may rest Guest must on the proteetion wldch the law casts around him, yet, if cir- ^^^^.^^ camstances of suspicion arise, he must exercise ordinary care. It seems to me that the room was not merely entrusted to the plaintiff in the ordinary character of a guest frequenting an inn, hut that he must he understood as having taken a special charge of it, and that he was bound to exercise ordinary care in the safe keeping of his goods, and it is owing to his neglect, and not to the fault of his innkeeper, that the accident happened ; and this was a question proper to leave to the jury ; " Burgess v. Clements, 4 M. lI' S. 306 ; accord. Farnworth v. Packwood, 1 Stark. 249. So where the innkeeper's ostler placed the guest's horse Dmcson v. in a stable with another horse that kicked him, and the innkeeper innkeeper, to rebut the pres-umption of negligence, gave once held evidence to show that the horse had been properly taken unless direct care of: Cresswell, J., told the iury that the innkeeper injury or '' "^ iieflio'eiice. was liable, if he or his servants had been guilty of direct injury or of negligence, otherwise not ; the jury found for the innkeeper ; and the court (though they held that evidence Loss frimd p ^ , 1 ^,1 ir* i•'^Jr•• facie evidence 01 damage to or loss oi the goods oi a guest prima jacie of innkeeper's raises a presumption of negligence in the innkeeper) negligence. considered the direction proper ; Dawson v. Chanmey, 5 Q. B. 1G4. In Armistead v. Wilde, 17 Q. B. 261, where a Not liable cash-box, easily opened, was left in the commercial room of neaiia^cein an inn, under circumstances showing gross negligence in the guest. guest, the jury were directed that y^vss negligence on the guest's part would relieve the innkeeper from his common law liability, and the jury having found for the innkeeper, on the ground that the guest had been guilty of gross negligence, the verdict was upheld. Lord Campbell observing that he doubted if it were necessary to show gross negligence (upon which point see post). But in another case, where a CALYES CASE. Gnewt must take ordinary care. traveller went to an inn with several packages, one of which was, b}' his desire, taken into the commercial room, into which he was shown, and the others into his bedroom, which, according to the usual practice of that inn, was the place to which goods were taken, unless orders were given to the contrary, and the package taken into the commercial room was stolen, the innkeeper was held responsible, and Holroj'd, J., distinguished the case from Burgess v. Clements by saying, that there the plaintiff asked for a room which he used for the purposes ol trade, not merely as a guest in the inn; Richmond v. Smith, 8 B. & C. 9. So in Kent v. Shnckard, 2 B. & Ad. 803, the plaintiff and his wife arrived at the inn, and took a sitting-room and bed- room so situated that, the door of the sitting-room being open, a person there could see the entrance into the bed- room. On the next day the plaintiff's wife went into the bed-room, and laid on the bed a reticule, which contained money, and returned into the sitting-room, leaving the door between that and the bedroom open. About five minutes later she sent for the reticule, which was not to be found. The innkeeper was held responsible, and it was held that there was no distinction between mone}' and goods as to the liability of innkeepers. So in Jones v. Tyler, 1 A. & E. 522, the plaintiff drove his gig to the defendant's inn on Bewdley fair-day, and asked whether there was room for the horse ; the defendant's ostler took the horse out of the gig and jjut him into a stable; and while the plaintiff carried his coat and whip from the gig into the house, and took refreshment there, the ostler placed the gig outside of the inn-yard, in a part of the open street where the defendant was in the habit of placing his guests' carriages on fair-days. The gig was stolen thence; and the court held the innkeeper responsible, for it did not appear that the gig was put in the street at the plaintiffs request or instance : the place was, therefore, a part of tlie inn, fur the innkeeper b}'' his conduct treated it as sucli ; and if he wished to protect himself, he should have told the plaintiff that he had no room in his yard, and that he would put the gig in the street, but could not be answerable for it. It is not necessai'v in order to exonerate the innkeeper that he should establisli that tlie guest was guilty of r/ross negligence (if this term is used in the sense of greater negli- gence than the mere want of ordinary care) ; the irmkeeper CA lye's case. 123 is not liable if " the negligence of the guest occasions the loss in such a way as that the loss would not have happened if the guest had used the ordinary care that a prudent man might be reasonably expected to take under the circum- stances; " Cashill V. Wright, 6 E. & B. 891, 900. In Morgan v. liavey, G H. & N. 265, the plaintiff was Morgans. staying at an hotel in London. In his bed-room was hung j^i^^^eeper up a notice, that, in consequence of robberies having taken h^l^l liable place at night in London hotels, the proprietor requested ^y guest's visitors to bolt their doors, and leave their valuables at the negligence, bar, otherwise he would not be responsible. This notice or Queen's' plaintitf saw, but swore he read onl}^ the word "notice." enemies. He did not bolt his door (because, as he said, he did not know how), nor did he leave his watch or other valuables at the bar; and next morning they were gone; and the jury having found that there was no negligence on his part, the court refused to disturb the verdict. The court in this case distinguished and explained Daivson v. Chamney, supra, and laid down that the innkeeper is liable where there is a loss not arising from the guest's negligence, the act of God, or the Queen's enemies. According to the register he is liable only "2^''^ defectu," but it will be observed that his duty is stated there to be " absque siibstractione sen amissione custodlre die et nocte." If the loss would not have happened if the guest had used the ordinary care which a prudent man might reasonably be expected to have taken under all the circumstances, the innkeeper is not liable ; Oppenlieim v. White Lion Hotel, L. K. 6 C. P. 515 ; see Herbert v. Marku-ell, 45 L. T. 649 ; Huntley v. Bedford Hotel, 56 J. V. 53; Medawar v. Grand Hotel, (1891) 2 Q. B. 11. The guest's omission to lock his door is not necessarily an act of negligence, but it ma}' be so under the circumstances ; Id. In Angus v. McLaclilan, 23 Ch. D., p. 3S6, Kay, J., is reported to have held that an innkeeper " was not bound to be more careful in keeping tlie goods of his guests than he was as to his own." Probabl}^ the report, which on this point is incomplete, is inaccurate in attributing to the learned judge a view clearly inconsistent with the above authorities. At common law, if the goods of a guest be lost, the Burden of onus is upon the innkeeper to show that he is not P^°°^- liable by reason of the guest's negligence having caused or conduced to the loss. If, however, the innkeeper is protected by the Act of 1863, the onus is upon the guest to show that the innkeeper is liable beyond i'30 by proving 124 calye's case. that the loss was due to the wilful act, or the neglect or default, of the innkeeper or his servant ; Medawar v. Grand Hotel, (1891) 2 Q. B. 11. Special con' By a special contract with his guest the innkeeper may ^^^ ■ limit his liability. A notice posted up in the guest's room that "articles of value, if not kept under lock, should be deposited with the manager, who will give a responsible receipt for the same," though read by the guest, is no evidence of such a special contract ; Huntley v. Bedford Hotel, 56 J. P. 53. Who is "a It is not necessary, in order that a man may be a guest, so as to fix the innkeeper with liability, that he should have come for more than temporary refreshment ; Bennett v. Mellor, 5 T. K. 273 ; see Medawar v. Grand Hotel, supra; Strauss v. Countij Hotel Co., 12 Q. B. D. 27. In York v. Grindstone, 1 Salk. 388, 2 Raym. 860, three judges held, against Lord Holt's opinion, that if a traveller leave his horse at an inn, and lodge elsewhere, he is a guest, " because it must be fed, by which the innkeeper hath gain ; otherwise if he had left a dead thing ; " but it is clear that if the inn- keeper receive goods as bailee, and not as innkeeper, he is liable, if at all, only as bailee ; Hyde v. Mersey, cC-c., Co., 5 T. R. 389 ; Gell'ey v. Clerk, Cro. Jac. 188 ; Bac. Abr., Inns, C. 5 ; Williams v, Gesse, 3 B. N. C. 849 ; Strauss v. County Hotel Co., supra. The length of time for which the guest has resided seems not to affect his right as such, provided he live there in the transitory condition of a guest ; but if he came on a special contract to board and lodge there, it has been said that the law does not consider him a guest, but a boarder ; Bac. Abr. Inns, C. 5 ; Park- hurst V. Foster, 1 Salk. 388 ; but see TJirefall v. Borwick, L. R. 10 Q. B. 210, where this point was not taken. In Smith V. Dearlove, 6 C. B. 132, where an innkeeper received a carriage and horses to stand at livery, the fact that, whilst they were there, the owner took occasional refreshment at the inn, and also for a time had a friend supplied with lodging and refreshment there on his credit, was held insuffi- cient to give the innkeeper a lien on the carnage and horses for his charges, since tliat right depends upon the fact that the goods come into the innkeeper's " possession, in his character of innkeeper, as belonging to a guest." Inn, what. 'L'lie definition of an inn is "a liouse tvhere the traveller is furnished with everytliinn he lias occasion, for while on his way ; " Tlionipson v. Lacy, 3 B. & Aid. 283 ; see Bac. Abr., calye's case. 125 Inns, B. ; Burn's Justice, title Alehouse. A mere coffee- house is not an inn, at least not within the meaning of a fire poHcy ; Doe v. Laming, 4 Camp. 77 ; nor is a })oar(ling- house ; Dansey v. liicJiardso)!, 3 E. ^"v: B. 144; Parhliiirst v. Foster, 1 Salk. 388 ; nor is a refreshment bar attaclied to an hotel, but entered from the street by a separate door ; R. V. Rymer, 2 Q. l\. I). 136. As to lodging-houses, see Holder v. Soulhy, 8 C. B. N. S. 254 ; as to the liability of restaurant-keepers for their guests' coats, JJltzen v. Nichols, (1894) 1 Q. B. 92. " Bv the common law of England every person who keeps Duty to 1 1 T i. • J. • J «• J receive guests. a common mn is under an obligation to receive and aiiord ^ proper entertainment to every one who offers himself as a guest, if there be sufficient room for him in the inn, and no good reason for refusing him ; " Gordon v. Silher, 25 Q. B. D. 491 ; see Fell v. luiu/ht, 8 M. & W. 269; R. v. Iveiis, 7 C. & P. 213; Hawthorn v. Hammond, I C. & K. 404; R. V. Ryimr, 2 Q. B. D. 136. " The relation of host and guest cannot be terminated abruptly and without notice to the guest. A reasonable time must be allowed for him to carry away or secure his effects; " per Bowen, L.J., Medawar v. Grand Hotel Co., supra. An innkeeper has a lien for his charges upon all goods Innkeeper's that come into his possession, in his character of innkeeper, ^^^"• as belonging to a guest; Gordon v. Silher, 25 Q. B. D. 491 ; Smith V. Dearlove, 6 C. B. 132; and this lien attaches to goods brought to the inn by the guest, though they be not his own ; Robinson v. Walter, 3 Bulstr. 269 ; 1 Roll. Rep. 449 n. ; JoJinson v. HUl, 3 Stark. 172; Turrill v. Cratcley, 13 Q. B. 197; Snead v. Watkins, 1 C. B. N. S. 267; Midliner v. Florence, 3 Q. B. D. 484 ; Gordon v. Silher, stvpra (where the goods belonged to the guest's wife who came with him) ; Robins v. Gray, (1895) 2 Q. B. 78 (a case of a com- mercial traveller) ; and to articles brought by the guest as his own, but not being ordinary travellers' luggage, e.g., a piano; Threfcdl v. Borwick, L. R. 7 Q. B. 711, 10 Id. 210; but not to goods of a third person sent to the guest at the inn for temporary use, e.g., a piano on hire ; Broadwood v. Granara, 10 Exch. 417. His lien upon the carriage and horses brought with him by his guest is not limited to his charge for their keep, but extends to his charge for the guest's own entertainment ; Midliner v. Florence, 3 Q. B. D. 484. Occasional absences animo revertendi during a long stay will not defeat the lien ; Allen v. Smith, 12 C. B. N. 8. 638; 126 CALYES CASE. 41 & 42 Vict. c. 38. Innkeeper's statutoiy power of sale. Detention of guest. see also Day v. Bather, 2 H. & C. 14, where the plaintift' left his horse at an inn and went away for a fortnight, and a third person during that time drove the horse out and injured it^ and the innkeeper was held liable. An innkeeper who accepts security from his guest for hotel charges does not necessarily thereby waive his lien ; Angus v. McLachlan, 23 Ch. D. 330. At common law an innkeeper had no right to sell or otherwise part with the proiierty of a guest upon which he liad a lien ; Mulliner v. Florence, 3 Q. B. D. 484. Now by The Innkeepers Act, 1878, the landlord of an hotel, inn, or licensed public-house has, in addition to his ordinar}' lien, the right to sell by auction any goods, chattels, carriages, horses, wares, or merchandise, deposited with him or left in tlie house he keeps, or in the coach-house, stable, stable- yiird, or other premises appurtenant or belonging thereto, where the person depositing or leaving such goods is or becomes indebted to him, either for board or lodging, or for the keej) or expenses of any horse or other animals left with, or standing at livery in the stable or fields occupied b}', him : provided (1), that no sale be made until after the goods have been for six weeks in the landlord's custody or on his premises without the debt having been satisfied ; (2), that the landlord, after having, out of the proceeds of the sale, paid himself the amount of the debt, together with the costs and expenses of the sale, pay on demand to the person who deposited or left the goods the surplus, if any ; (3), that the sale be made onl}^ for the debt in respect of which the landlord has a lien upon the goods ; and (4), that the sale be advertised, one month beforehand, in one London news- ])aper and one country newspaper circulating in the district where the goods or some of them were deposited or left, with a description of the goods, and the name of the owner or person who deposited or left them, if known. The vulgar error that an innkeeper might detain the per- son of his guest until payment of his bill, was exploded in Sintholfy. Alford, 3 M. .^- W. 248. THE SIX CARPENTERS' CASE. MICH.—i JACOB I 1. [reported 8 COKE, 146tt.] If a man abuse an authority given him by the law, he becomes a trespasser ab initio. — Contra, of an authority given by the party. — The abuse is good matter of replication. — Mere nonfeasance does not amount to such abuse as makes a man a trespasser ab initio. In trespass brought by John Vaux against Thomas Newman, carpenter, and five other carpenters, for breakmg his house, and for an assault and battery, 1 Sept. 7 Jac, in London, in the parish of St. Giles extra Cripplegate, in the ward of Cripplegate, &c., and upon the {a) new assignment, the plaintiff assigned the tres- pass in a house called the Queen's Head. The defendants to all the trespass prcpAev fractionem donius pleaded not guilty ; and as to the breaking of the house, said that the said house, prcecV tempore quo, cCx'., et din antea et postca, was a common wine tavern of the said John Vaux, with a common sign at the door of the said house fixed, &c., by force whereof the defendants, prced' tempore quo, cC-c, viz., liord quartd post iiwridiem, into the said house, the door thereof being open, did enter, and did there buy and drink a quart of wine, and there paid for the same, &c. The plaintiff, b}^ way of replication, did confess that the said house was a common {h) tavern, and that they entered into it, and bought and drank a quart of wine, and paid for it ; but further said, that one John Ridding, servant of the said John Vaux, at the request of the said defendants, did there then deliver them another quart of wine, and a pennyworth of bread, amounting to 8d., and then they there did drink the said wine, and eat the bread, and upon request did refuse to pay for the same. Upon which the defendants did demur in law : and the only point in this case was, if the denying to pay for the wine, or non- (a 2 Co. 6 a., IS b. {h) Kelvv. 33 a. 128 THE SIX CAKPENTEKS' CASE. payment, which is all one (for every non-payment, upon request, is a denying in law), makes the entry into the tavern tortious. And first, it was resolved : when entrji, authority, or (c) licence is given to any one hy the law, and he abuses it, lie shall he a tres- passer ah initio ; hut tchere entry, autJiority, or licence is given hy the (d) 'party, and he abuses it, there he must be imnished for his abuse, but shall not be a trespasser ab initio. And the reason of this difference is, that in the case of a general authority or licence (e) of law, the law adjudges by the subsequent act, quo animo, or to what intent he entered, for acta exteriora indicant interiora secreta; vide 11 H. 4, 75 b. But when the party gives an authorit}^ or licence himself to do anything, he cannot, for any subsequent cause, punish that which is done by his own authority or licence. And therefore the law gives authority to enter mto a common inn or tavern ; so to the lord to distrain ; to the owner of the ground to distrain damage-feasant ; to him m reversion to see if waste be done ; to the commoner to enter upon the land to see his cattle; and such like; ride 12 E. 4, 8b; 21 E. 4, 19 b ; 5 H. 7, 11 a ; 9 H. 6, 29 b ; 11 H. 4, 75 b ; 3 H. 7, 15 b ; 28 H. 6, 5 b. But if he who enters into the inn or tavern doth a trespass, as if he (/) carries away anything; or if the lord who distrains for rent, or the owner for damage- feasant, works or kills the (g) distress ; or if he who enters to see waste break the house, or {li) stays there ail night ; or if the commoner cuts down a tree ; in these and the like cases, the law adjudges that he entered for that purpose ; and because the act which demonstrates it is a trespass, he shall be a trespasser ab initio, as it appears in all the said books. So if (i) a purveyor takes my cattle by force of a commission, for the king's house, it is lawful ; but if he sells them in the market, now the first taking is wrongful ; and therewith agrees 18 H. 6, 19 b. Et sic de similibus. 2. It was resolved jw.r totani curiam, that (/.■) not doing cannot (c) 2 Roll. 561. Yelv. 96, 97. {(j) 12 E. 4, 8 b. 9 Co. 11 a. 1 And. (d) r> H. 7, 11 a. Perk. sect. 191. 65. Cro. Jac. 148. Perk. sect. 191. Yelv. 96, 97. 21 K. 4, 19 b. (/;) 2 Roll. 561. 11 H. 4, 75 b. Fitz, (c) 2 Roll. 561. 21 E. 4, 19 b, 70 b, Tresp. 176. Br. Trcsp. 97. Pr. Replica. 12. perCatewby. Yelv. 96, 97. Perk. .sect. [i) 2 Roll. .^61. 18 H. 6, 9 b. 2 191. 5 H. 7, 11 a. Inst. 546. (/) Perk. sect. 191. Crc. Car. 196. {k) Cr. Car. 196. 2 linlstr. 312. 1 Yolv. 96. Roll. Rep. 130. THE SIX carpenters' CASE. 129 make the party, iclio lias aiitJioriti/ or licence hij the law, a trespasser ah initio, hecanse not dohu) is no trespass ; and therefore if the lessor distrains for his rent, and thereupon the lessee tenders him the rent and arrears, &c., and requires his beasts again, and he will not deliver them, this not doing cannot make him a tres- passer ah initio ; and therewith agrees 33 H. 6, 47 a. So if a man takes cattle damage-feasant, and the other offers sufficient amends, and he refuses to re-deliver them, now if he sues a replevin, he shall recover (/) damages only for the detaining of them, and not for the taking, for that was lawful ; and therewith agrees F. N. B. 69 g ; Temps, E. 1, Eeplevin, 27 ; 27 E. 3, 88; 45 E, 3, 9. So in the case at bar, for not (m) paying for the wine, the defendants shall not be trespassers, for the denying to pay for it is no trespass, and therefore they cannot be tres- passers a& twi^io ,- and therewith agrees directly in the point 00 12 E. 4> 9 b. For there Pigot, Serjeant, puts this very case, if one comes into a tavern to drink, and when he has drunk he goes away and will not pay the taverner, the taverner shall have an action of trespass against him for his entry. To which Brian, Chief Justice, said, the said ease which Pigot has put is not (o) law, for it is no trespass, but the taverner shall have an action of debt : and there before (j>) Brian held, that if I bring cloth to a tailor, to have a gown made, if the price be not agreed in certain before, how much I shall pay for the making, he shall not have an action of debt against me ; which is meant of a general action of debt : but the tailor in such a case shall have (q) a special action of debt ; sell, that A. did put cloth to him to make a gown thereof for the said A., and that A. would pay him as much for making, and all necessaries thereto, as he should deserve, and that for making thereof, and all necessaries thereto, he deserves so much, for which he brings his action of debt: m that case, the putting of his cloth to the tailor to be made into a gown, is sufficient evidence to prove the said special contract, for the law implies it : and if the tailor overvalues the making, or the necessaries to it, the jury may mitigate it, and the plaintiff shall recover so much as they shall find, and shall be barred for (?) Lit. Rep. 34. Dr. & Stu I. lib. 2, (o) 12 E. 4, 9 h. 112 b. Hetl. 16. ip) 12 E. 4, 9 b. (m) 1 Roll. Rep. 60. 2 Bulstr. 312. {q) 1 Sid. 5. (n) 1 Sid. 5. 12 E. 4, 9 a, b. S.L.C. — VOL. I. 9 130 THE SIX CAEPENTEES' CASE. the residue. But if the tailor (as they use) makes a bill, and he himself values the making, and the necessaries thereof, he shall not have an action of debt for his own value, and declare of a retainer of him to make a gown, &c,, for so much, unless it is so specially agreed. But in such case he may (r) detain the garment until he is paid, as the hostler may the horse ; vide Br. Distress, 70. And all this was resolved by the court. Vide the Book in 30 Ass. pi. 38, John Matrever's case, it is held by the court, that if the lord or his bailiff comes to distrain, and (s) before the distress the tenant tenders the arrears upon the land, there the distress taken for it is tortious. The same law for damage-feasant (t), if before the distress he tenders sufficient amends; and therewith agrees 7 E. 3, 8 b, in the Mr, of St. Mark's case ; and so is the opinion of Hull to be understood in 13 H, 4, (if) 17 b, which opinion is not well abridged in the title Trespass, 180. Note, reader, this difference, that tender upon the (x) land before the (y) distress makes the distress tortious ; tender after the distress and before the impounding, makes the detainer, and not the taking, wrongfid {z) ; tender after (a) the impounding makes neither the one nor the other tvrongful ; for then it comes too late, because tlien the cause is put to the trial of the law, to he there (r) Hob. 42. Yelv. 67. Cro. Car. Inst. 107. 5 Co. 76 a. (It seems to have 271, 272. Br. Distress, 71. Palm. 223. been thouglit in Smith v. Goodvnn, 4 B. Hut. 101. 22 E. 4, 49 b. Moor. 877. & Ad. 415, that this doctrine does not 5 Ed. 4, 2 b. 1 Roll. Rep. 449. 2 Roll. apply to a distress for rent, bnt that a Rep. 438. 2 Roll. 85, 92. 3 Bnlstr. tender of the rent and charges after im- 269, 270. pounding would make the subsequent (s) Br. Distr. 37. Br. Tender, &c. 18. detainer tortious. In that case, how- {Bennett v. Bayes, 5 H. & N. 391.) ever, there was a seizure, an impounding {t) Singleton v. Williamson, 7 H. & upon the premises, then a tender of the N. 747. rent and charges, then a relinquishment (u) 2 Roll. 561. (See Jnscoinb v, of the distress, and then « scco?irf sczsure. Shore, 1 Camp. 285, 1 Taunt. 261 : See Vertue v. Beasley, 1 M. & Rob. 21, Replevin for taking and impounding ; Parke, B. In Thomas v. Harries, 1 M. pica, a tender after the taking and before &Gr. 695, 1 Scott, N. R. 524, Maule, J., impounding : held good, for the detain- thought that under 11 Geo. II. c. 19, ing after tender is a new taking. Evans s. 22, the right offender remained as long v. Elliott, 5 A. & E. 142 ; Tmnant v. as the distress was on the premises ; but Field, 8 E. & B. 337.) the other judges differed from him. The (x) 2 Sid. 40, doctrine laid down in the Six Carpenters' (y) 5 Co. 76 a. 2 Inst. 107. Case is affirmed by Ellis v. Taylor, 8 M, (z} The remedy for the detention is not & W. 415 ; Ladd v. Thomas, 4 P. & D. coiilined to replevin ; Lorinyv. Warhur- 9, 12 A. & E. 117 ; West v. Nibhs, 4 C. ton, K. B. & E. 507 ; but see Glynn v. B. 172. But the Queen's Bench has Thomas, 11 Exch. 870. since held quite coTisistently with the (ft) 2 Roll. 501. 1 Browiil. 173. 2 Six Carpenters' Case, and in accordance THE SIX CARPENTERS CASE. 1;U determined (h). But after the law has determined it, and the avowant has return irreplevisable, yet if the plaintiff makes him a sufficient tender, he may have an action of Detinue for the detainer after : or he may, upon satisfaction made in court, have a writ for the re-delivery of his goods ; and therewith agree the said books in 13 H. 4, 17 b ; 14 H. 4, 4 ; Recjistf Judic', 37 ; 45 E. 3, 9 ; and all the aforesaid books ; vide 14 Ed. 4, 4 b ; 2 H. 6, 12 ; 22 Hen. 6, 57 ; Doctor and Student, lib. 2, cap. 27 ; Br. Distress, 72 ; and Pilkington's Case, in the Fifth Part of my Eeports, fol. 76 ; and so all the books which iirinid facie seem to disagree, are upon full and pregnant reason well reconciled and agreed. witli the prevailing opiuiou, though dis- senting from Tliomas v. Harries, Ellis v. Taylor, and Ladd v. Thomas, that by the equity of the Statute of Wm. and JMary a tender of Ihe rent and expenses after impounding, but within tive days of the taking, renders a subsequent detention unlawful ; JohnsoH v. Upham, 2 E. & E. 250. A tender of rent without expenses after a warrant of distress has been de- livered to the broker, but before its exe- cution, is good ; Bennett v. Bayes, 5 H. & N. 391.) (Ij) Singleton v. Williamson, 7 H. & N. 747 ; but see C. L. P. Act, 1860, s. 23 (repealed, 46 & 47 Vict. c. 49 ; but see ss. 5, 6, 7). Three points decided in principal case. From this case, which is one of the most celebrated in Lord Coke's Reports, three points are to be collected : — 1. That if a man abuse an author! t}- given to him b}- the law, he becomes a trespasser ah initio. 2. That in an action of trespass, if the authority be 13leaded, the subsequent abuse ma}' be replied. 3. That a mere nonfeasance does not amount to such an abuse as renders a man a trespasser ah initio. The first of these points has been frequently confirmed. In Oxley v. Watts, 1 T. R. 12, plaintiff sued in trespass for ist Point, taking a horse ; defendant justified taking him as an estray ; Abuse of replication, that, after that taking, defendant worked the !l"*^n t'^^'iaw horse, and so became a trespasser ab initio. On motion in arrest of judgment, the court held the replication good, and defendant a trespasser ab initio. The same point was decided, on demurrer, in Bagshaw v. Goivard, Cro. Jac. 147 ; accord. Gargrave v. Smith, Salk. 221 ; Bovy's Case, 1 Vent. 217 ; Aitkenliead v. Blades, 5 Taunt. 198. One consequence of this doctrine was, that, if a party, entering lawfulh' to make a distress, committed any subsequent abuse, he became 9 2 VH THE SIX CARPENTERS CASE. 17 G. 2, c. 38 Distress for poor-rate. a trespasser ah initio. In Gavfirave v. Smitli, Salk. 221, and Dye V. LeatJierdale, 3 Wils. 20, this was expressly decided. But, if there be a seizure of several chattels, some of which are by law seizable, and some not, or some of which are subsequently abused, and the rest not, the seizure is or becomes illegal, only as to the chattels which it was unlawful to seize, or which were subsequently abused, and the seizure of the rest continues legal ; Dod v. Monger, 6 Mod. 215 ; Harvey y. Pocock, 11 M. & W. 740. As it Avas found that the doctrine of trespass ah initio 11 G. 2, c. 19. \)OYQ extremely hard on landlords, the Distress for Rent Distiuss for ^g^ 173^ gg jg ^^ 20, provided for their relief, that where rent bv . . landlord. distress be made for rent justly due, and any irregidarity or nnlaicfid act he afterwards done by the distrainer, the distress shall not be deemed unlawful nor the distrainer a trespasser ah initio; but the party aggrieved by the unlawful act or irregularity may recover for the special damage sustained, unless tender of amends has been made before action brought. The Poor Relief Act, 1743, s. 8, gave the same relief, in case of an irregidarity, to a party distraining for money justly due for the I'elief of the poor, and the same right to the party aggiieved. To support an action for irregularity actual damage must be proved; Eodgers v. Parker, 18 C. B. 112; Lucas v. Tarleton, 3 H. & N. 116. If an entry be so made as to render the seizure wholly illegal ah initio, the measure of damages is the whole value of the goods seized without deducting the rent satisfied by the seizure; Attack v. Brain- well, 3 B. & S. 520. A sheriff who enters premises under n^fi.fa., becomes a trespasser by remaining there for more than a reasonable time, and the trespass may be alleged to have been com- mitted after the expiration of the reasonable time ; AsJi v. Dawnay, 8 Exch. 237 ; Playfair v. Musgrove, 14 M. & W. 239 ; but see Ailkenhead v. Blades, 5 Taunt. 198. It seems doubtful whetlier he thereby becomes a trespasser ah initio. In SiiiitJi V. Kggington, 7 A. it E. 167, it was held that the sheriff, if indeed a tres[)asser at all, was not a trespasser ah initio for detaining a prisoner for more than 30 days contrary to tlif 1 W. 4, c. 36, s. 15, r. 5 (now repealed), but of the api)li('al)ility of vvliich Act to the prisoner it was not averred that tlu; sheriff had notice ; and Littledalc, J., drew a dis- tinct khi between cases where the excess might have been oriuiiiivllv contemplated and cases where it could not possibly SherifiF. THE SIX carpenters' CASE. 133 have been so, and thought that the doctrine of trespass ab initio does not apply to the hitter cases. See jjer Bayle}', J., Shorland v. Govett, 5 B. k, C. 485. The note upon the 2nd point decided in the principal 2nd Point. case has been omitted, in view of subsequent changes in the system of pleading. As to becoming a tres])asser ah initio by nonfeasance, see Srd Point, the dicta in Jacohsoii v. Blake, 6 M. & Gr." 925.' In West v. ^onjeasan'-e, Nibbs, 4 C. B. 172, a landlord wlio accepted the rent in arrear, and expenses, after inq)ounding a distress, and then retained possession of the goods distrained, was held guilty only of a nonfeasance, and therefore not a tresj^asser ab initio, though probably liable for a conversion of the goods to his own use ; and Evans v. Elliott, 5 A. & E. 142, was distinguished on the ground that it was an action of re})levin, and Vertue v. Beasley, 1 M. & Rob. 21, on the ground that in that case there was a removal of the goods after the tender. Akin to the subject-matter of this note is the second Taylor v. point mentioned in the head note to Taijlor v. Cole, 3 T. R. p^^^' P''^?''" . having right 292, wdiich appeared as a leading case in some former of possession editions of this work, viz. : — ™*y *^'}*'^'" peaceably, or " A person having a right of possession may enter peac^e- being in may ably, and being in possession may retain it without first i'°*'^"^ \t ^^*^" establishing his right by action. If the assertion of his right be accompanied by a breach of the peace, that is the proper subject of criminal prosecution." This point is one of general importance, and gave rise to a Newton v. difference of opinion in the Court of C. P. in Newton v. ^"■'^^^''^ ■ Harland, 1 M. & Gr. 644, where the majority of the court held (Coltman, J., dissenting), that if a person who has a right to enter, makes " a forcible entry," and in so doing assaults the person who is in actual possession, an action lies for the assault, and that it is no defence to the action that no more force was used, in committing the assault, than v/as necessary for the purpose of ejecting the plaintiff. The ground upon wdiich the majority of the court so decided appears to be that, as a forcible entry is illegal, lawful pos- session cannot be thereby acquired, and therefore the assault, not being in defence of a lawful possession, cannot be justified. It is clear that a person who has a right to enter and take Remedies of possession, may do so peaceably, without being liable in an Kf ^^^^ ^^\ action for trespass to the land ; Taunton v. Costar, 7 T. B. laud. 431; Butcher v. Butcher, 7 B. & C. 399; Wildbor v. Rain- 134 THE SIX CARPENTERS CASE. Newton v. Harland. Beddall v. Maitlaiul. Remedies of comiiioiier. forth, 8 Id. 4 ; Broicne v. Dawson, 12 A. & E. 624 ; Delaney V. Fox, 1 C. B. N. S. 166; Polleu v. Brewer, 7 Id. 371; Jones V. Foley, (1891) 1 Q. B. 730 ; and it seems to be equally clear that even if he enters forcibly he is not liable in such an action ; TwnierY. Meymott, 1 Bing. 158 ; Harvey y. Bridges, 14 M. & AV. 437, 1 Exch. 261; Davison v. Wilson, 11 Q. B. 890 ; Burling v. Read, Id. 904 ; Wright v. Bur- roughes, 3 C. B. 685 ; Beddall v. Maitland, 17 Ch. D. 174. When he has peaceably and lawfully entered and become possessed, he may turn out all previous occupiers, as being tresjiassers, provided that he use no more force than is necessary ; or he may bring an action of trespass against them ; Hey v. Moorhouse, 6 B. N. C. 52 ; Buteherv. Bvtcher, 7 B. & C. 399; Brotvue v. Daivson, 12 A. & E. 624 ; Scott x.Broicn, 51 L. T. 747; see Loivs v. Telford, 1 App. Cas. 414. It is believed that at the time when Newton v. Harland was decided the almost universal opinion of the profession was in accordance with that expressed by Coltman, J. (who dissented from the majority of the court), to the eftect that the only remedy for the assault was a criminal prosecution. The law as laid down in Neivton v. Harland was doubted in Harvey v. Bridges, 14 M, & W. 45, by Parke and Alderson, BB., each of whom had tried the action of Newton v. Har- land ; and in Blades v. Higgs, 30 L. J. C. P. 347, Erie, C.J., in delivering the judgment of the court, seems to sa}^ that Harvey v. Bridges overruled Newton v. Harland. In neither of those cases, however, nor in any subsequent case, was any decision given contrar}^ to that in Neivton v. Harland ; and Newton v. Harland was followed by Fry, J., in Beddall v. Maitland, 17 Ch. D. 174, and Edwick v. Haivkes, 18 Id. 199, where he held that if an entiy is made under such circumstances as render it a "forcible entry" within the meaning of the statutes relating to forcible entries, the person so entering is liable in an action for any assault or other independent wrong or injury, such as damage to furni- ture, done in the course of or after the forcible entry. A commoner is justified in pulling down without doing any unnecessary damage any erection which obstructs the exercise of his right of common; Arlctt v. Ellis, 7 B. c*i: C. 346 ; ])ut if the erection be a house with persons actually in it, hois only justified in })ulling it down after notice and request to remove it; Perry v. Fitzhowe, 8 Q. B. 757; Davies v. Williams, 16 Id. 546 ; Jones v. Jones, 1 H. & C. 1 ; sec Lane v. Capsey, (1891) 3 Ch. 411. THE SIX carpenters' CASE. 135 An owner of goods is justified in entering, in pursuit of Remedies of his goods, on lands on to which the owner of the lands chattel*^ has wrongfully carried tlie goods ; Patrick v. Colerick, 3 M. & W. 483 ; see Wchb v. Beavan, 6 M. & Gr. 1055 ; Barridge V. Nicholetts, 6 H. & N. 383 ; Austin v. Dowlimj, L. E. 5 C. P. 534, 539 ; hut the mere fact that his goods are on the lands does not justify his entering ; Anthony v. Haneys, 8 Bing. 187 ; see Williams v. Morris, 8 M. & W. 488. The point actually decided in Blades v. Hif/gs, supra, was that an owner of a chattel, entitled to possession of it, can justify an assault made for the purpose of recapturing it, after demand and refusal. LAMPLEIGH v. BRATHWAIT. MICH. 12 JACOB!.— ROT. 712. [reported hobart, 105.] A mere voluntary courtesy will not uphold an assumpsit ; but a courtesy moved by a previous request will. — Labour, though unsuccessful, is a good consideration. — Of assumpsit and considerations generally. Anthony Lampleigh brought an assumpsit against Thomas Brath^Yait, and declared that, whereas the defendant had feloniously slain one Patrick Mahune, the defendant, after the said felony done, instantly required the plaintiff to labour, and do his endeavour to obtain his pardon from the king ; where- upon the plaintiff upon the same request, did, by all the means he could and many days' labour, do his endeavour to obtain the king's pardon for the said felony, viz., in riding and journeying at his own charges from London to Eoiston, when the king was there, and to London back, and so to and from Newmarket, to obtain pardon for the defendant for the said felony ; afterwards, scil. &c., in consideration of the premises {a), the said defendant did promise the said jDlaintiff to give him 100/., and that he had not, &c., to his damage 120Z. To this the defendant pleaded non assumpsit ; and found for the plaintiff, damage 100/. It was said in arrest of judgment, that the consideration was passed. But the chief objection was, that it doth not appear that he did anything towards the obtaining of the pardon, but riding up and down, and nothing done when he came there. And of this opinion was my brother (Warburton), Init myself and the other two judges were of opinion for the plaintiff (/;),andsohehad judgment. First, it was agreed, that a mere voluntary courtesy will not have a consideration to upliold an assumpsit. But if that (a) In Norman v. Cole, 3 Rsp. 253, Elliot v. Richardson, 39 L, J. C. P. 343. this consideration was held illegal ; see (b) See 1 Wins. Sauud. 211 c, in notis, per Pollock, C. B., Ecferton v. Brmvnhnr, 2 Id. 136, in notis. 4 II. L. C. 148; and j.pr Willrs, J., LAMPLEIGH V. BRATHWAIT. 137 courtesy were moved by a suit or request of the party that gives the assumpsit, it will bind ; for the promise, though it follows, yet it is not naked, but couples itself with the suit before, and the merits of the party procured by that suit, which is the differ- ence ; Pasch. 10 Eliz., Dyer, 272, Hunt and Bate ; see Ondcifs Case, 19 Eliz., Dyer, 355. Then, as to the main point, it is first clear, that in this case upon the issue non assumpsit, all these points were to be proved by the plaintiff : 1. That the defendant had committed the felony, 'proiit, &c. 2. Then that he requested the plaintiff's endeavour, prout, &c. 3. That thereupon the plaintiff made his proof, prout, &c. 4. That thereupon the defendant made his promise, prout, &c. For wheresoever I build my promise upon a thing done at my request, the execution of the act must pursue the request, for it is like a case of commission for this purpose. So then the issue found ut supra is a proof that he did his endeavour according to the request, for else the issue could not have been found : for that is the difference between a promise upon a consideration executed and executory, that in the executed you cannot traverse the consideration by itself, because it is passed and incorporated and coupled with the promise (c). And if it were not indeed then acted, it is niulum pavtum. But if it be executory, as, in consideration that you shall serve me a year, I will give you ten pound, here j^ou cannot bring your action, till the service performed. But if it were a promise on either side executory, it needs not to aver performance, for it is the counter-promise, and not the performance, that makes the consideration {d) ; yet it is a promise before, though not binding, and in the action you shall lay the promise as it was, and make special averment of the service done after. Now if the service were not done, and yet the promise made, proiit, &c., the defendant must not traverse the promise, but he must traverse the performance of the service, because they are dis- tinct in fact, though they must concur to the bearing of the action. (c) See R. H. 1834 ; Reg. Gen. H. T. (d) See notes to Pordaije v. Cole, 1 1853, r. 6 ; Passenger v. Brookes, 1 B. Wnis. Sannd. 548, and to Peciers \. N. C. 587, 7 C. & P. 110, 1 Scott, 560, Opic, 2 Id. 742, and to Cutter v. Powell, explained in Bcnnion v. Davison, 3 j\I. & post, vol. 2. W. 179. 138 LAMPLEIGH V. BRATHWAIT. Then also note here, that it was neither required, nor promised, to obtain the pardon, but to do his endeavour to obtain it : the one was his end, and the other his office. Now then, he hath laid expressly, in general, that he did his endeavour to obtain it : viz. in equitando, &c., to obtain. Now then, clearly, the substance of this plea is general, for that answers directly the request, the special assigned is but to inform the court ; and therefore, clearly, if, upon the trial, he could have proved no riding nor journeying, yet any other effectual endeavour according to the request would have served : and therefore, if the consideration had been, that he should endeavour in the future, so that he must have laid his endeavour expressly, and had done it as he doth here, and the defendant had not denied the promise, but the endeavour, he must have traversed the endeavour in the general, not the riding, &c., in the special ; which proves clearly, that is not the substance, and that the other endeavour would serve. This makes it clear, that though particulars ought to be set forth to the court, and those sufficient, which were not done, which might be cause of demurrer ; yet being but matter of form, and the substance in the general, which is here in the issue and verdict, it were cured by the verdict ; but the special is also well enough ; for all is laid down for the obtaining of the pardon which is within the request ; and therefore, suppose he had ridden to that purpose, and Brathwait had died, or himself, before he could do anything else, or that another had obtained the pardon before, or the like, yet the promise had holden. And observe that case, "22 E. 4, 40: condition of an obligation, to show a sufficient discharge of an annuity, you must plead the certainty of the discharge to the court (e). The reason whereof, given by Brian and Choke, is, that the plea there contains two parts, one a trial jx'r ])itis, scil. the writing of the discharge, the other by the court, sail, the sufficiency and validity of it, which tlie jury could not try, for they agree, that if the condition had been to build a house agreeable to the state of the obligee, be- cause it was a case all proper for tlie country to try, it might («) So to ii |ili';i of 'nil/, aijiiril in iiu Vict. c. "US, liav(^ set out tlic award in ■'K-tion on a bond to jicilinni an award, order that the court nii<,dit judgo of its ^ic rfjiliontion nmst, lufdvi' 15 .t Ki snflicienoy ; see I Wnis. Saund. 327,n.,d. LAMPLE[GH V. BRATHVVAIT 139 have been pleaded generally : and then it was a demurrer, not an issue, as is here. Whenever the consideration of a promise is executory, Executory ,, ^ . -11 1 ' i consideration tnere must ex necessitate rei have been a request on the part involves of the person promising. For if A. promise B. to remune- request. rate him in consideration that he will perform a specified act, that amounts to a request to B. to perform the act for which he is to be remunerated ; see King v. Sears, 2 C. M. & R. 53 ; and Shadwell v. Shadwell, 9 C. B. N. S. 159. In the latter case, the following letter was written to plaintiff by his uncle : — " I am glad to hear of your intended marriage with E. N. ; and as I promised to help you at starting, I am happy to tell 3^011 that I will pay you 150L yearly during my life, and until your annual income from your profession of Chancery barrister shall amount to 600 guineas." Plaintiff married E. N., and in an action against his uncle's executors for arrears of the annuity, the majority of the Court of C. P. held that the letter amounted to a request to plaintiff to marry E. N., and that the promise was therefore binding. The only difficulty that can arise in such cases is on the Consideration question which sometimes occurs wJiether the consideration ^^^^ plaintiff. TYiovefrom the plaintiff ; as, for instance, if A., in considera- tion of something to be done by B., promise something to C, in this case, C, being a stranger to the consideration, unless he has in some way intervened in the agreement between A. and B., cannot sustain an action on the promise; see Price v. Easton, 4 B. & Ad. 433 ; Osborne v. Rogers, 1 Wins. Saund. 264 ; Thomas v. Shilliheer, 1 M. & W. 125 ; Twedclle v. Atkinson, 1 B. & S. 393 ; but it' he Juts intervened in the agreement, that is sufficient ; Tipper v. Bicknell, 3 B. N. C. 710; ]Vebb v. Rhodes, Id. 732. In M'Coubray v. Thomson, 2 Ir. II. C. L. 226, A. was possessed of a farm, value 196/., which he desired to divide between B. and C, and it was agreed between the parties that, in consideration that A. would hand over to B. the possession of the farm, B. should pay C. 98/. It was held that C.'s intervention in the agreement was not sufficient to enable liim to maintain an action upon it against B. ; sed qiusre. The common law rule above stated does not apj)!}- where it appears that tlie person with whom the contract is made LAMPLEIGH V. BRATHWAIT. is meant to be trustee for a third person for whom the benefit is intended. In such case, the third person is entitled in equity to enforce the contract ; see Gandy v. Gandy, 30 Ch. I). 57, where the cases are collected ; and Re Rotherham Co., 25 Ch. D. 103. In Lilly v. Haijs, 5 A. & E. 548, A. sent lOOZ. to B. and informed him that it was for C. : B. having assented to this, and C having, by B.'s authority, been informed of it, it was held that B. had in effect made himself C.'s banker as to the 1001. , and that C. might maintain assumpsit for money had and received against B. ; see also Dutchman v. Tooth, 5 B. N. C. 577 ; Noble v. National Discount Co., 5 H. & N. 225 ; Griffin v. Weatherhy, L. R. 3 Q. B. 753. The case of Lilly V. Hays should be carefully distinguished from that class of cases, constituting a long series from Williams v. Everett, 14 East, 582, to Orr v. Union Bank of Scotland, 1 Macq. 513, in which it has been held tliat the mere payment of money by A. to B. for C. is revocable, and confers no right of action upon C. ; see Moore v. Bushell, 27 L. J. Ex. 3 ; and for the application of the same doctrine in equity. Hill V. Royds, 8 Eq. 290 ; see also Field v. Megaw, L. R. 4 C. P. 660. Perhaps the distinction is that in the one case the receiver of the money has undertaken to hold it as the agent of the person for whom it is destined, and that in the other case he has not. For the distinction between cases in which the defendant has (as in Lilly v. Hays) constituted himself agent to the plaintiff* to pay to him a particular sum of money received from a third person, and cases in which A. being indebted to B., and B. to C, it has been mutuall}^ arranged that A. shall pay C, see Liversidge v. Broadhent, 4 H. it N. 603. To make such an arrangement binding at common law, so as to give C. a right of action against A., there must have been an ascertained debt due in prasenti fi'om A. to B., and this, as well as the original debt from B. to C, must have been extinguished in order to create a considera- tion for A.'s promise to pay C. ; 1 Wms. Saund. 210a, note; Fairlie v. Denton, 8 B. & C. 395 ; Tailock v. Harris, 3 T. K. 180, per Bullor, J. ; Wilson v. Coupland, 5 B. it Aid. 228 ; Cochrane v. Green, 9 C. B. N. S. 448 ; and the notes to Cunihcr v. ]Vane, post. Now by the .liidirature Act, 1873, s. 25, sul)-s. 6, any al^solutc assigniiiciit, l)y writing under the liand of the assignor (not pui-porting to be; by way of cliargc oidy), of any debt or other legal chose in action, of which express notice LAMPLEIGH V. BRATHWAIT. l^l in -writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, is, and is to be deemed to have been, effectual in law (subject to all equities which woidd have been entitled to priority over the right of the assignee if the Act had not passed), to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor. Where the consideration is executed, unless there has ^yhere con- been an antecedent request, no action is maintainable upon executed no the promise; for a request must be alleged and proved, if action unless IIT'PVIOUS put in issue; Child v. Morley, 8 T. R. 610; see Sutton v. request, Tatliam, 10 A. & E. 27 ; Stokes v. Lewis, 1 T. E. 20 ; Naish V. Tatlock, 2 H. Bl. 819 ; Hayes v. Warren, 2 Str. 933 ; lUchardson v. Hall, 1 B. & B. 50 ; Durnford v. Messiter, 5 M. & S. 44(3. For although courts of law will not, in the absence of fraud, enter into the question of adequacy of consideration ; HaigJi v. Brooks, 10 A. & E. 309 ; Kearns v. Diirell, 6 C. B. 596 ; Hart v. Miles, 4 C. B. N. S. 371 ; Skeate v. Beale, 11 A. & E, 983 ; England v. Davidson, Id. 856 ; yet a mere voluntary courtesy is not sufficient to support a subsequent promise ; but when there was a previous request, the courtesy was not merely voluntary, nor is the promise nudum pactum, but couples itself with, and relates back to, the previous request, and the merits of the party which were procured by that request, and is therefore on a good consideration ; see Pawle v. Gunn, 4 B. N. C. 448 ; Bradford v. Roulston, 8 Ir. C L. R. 468. When, however, Request it is above said that the request must be alleged and proved, i]^"piie™*^^ it must be understood that there are some cases in which the consideration, though executed, is of such a nature that it must have been moved by a previous request, and in which, therefore, as in a case of executor}^ consideration, the statement that what was done was at the defendant's request, is merely expressio eorum qme tacite insunt, and, therefore, unnecessary. Such, for instance, is the case of nione}' lent, which, if lent at all, must obviously have been so with the borrower's concurrence. But the demand for money paid to the defendant's use stands on n different footing, for it may be so paid without his request, which, consequently, ought to be averred in terms, and proved, either directly or by cii'cumstances from which it may be implied b}' LAiMPLEIGH V. BRATHWAIT. law ; Victors v. Davies, 12 M. & W. 758 ; 1 M. & Gr. 265, note. Such a request may be either express or implied. If it has not been made in express terms, it will be implied under the following circumstances : — First, Where the consideration consists in the plaintiff's having been compelled to do that to which the defendant was legally compellable ; Jeffreys v. Gurr, 2 B. & Ad. 833 ; Poimal V. Ferrand, 6 B. & C. 439 ; Exall v. Partridge, 8 T. R 308 ; Grissell v. Robinson, 3 B. N. C. 13 ; Connell v. McGorlich, 12 Ir. C. L. 153 ; and Bradshaiv v. Beard, 12 C. B. N. S. 344. As to what amounts to compulsion, see Johnson v. Eoyal Mail Co., L. K. 3 C. P. 38; Gehhardt v. Saunders, (1892) 2 Q. B. 452, 458. This proposition has been held to be Hmited to cases where at the time of the compulsion there was some privity between the plaintiff and the defendant; Griffinlioofe v. Daubuz, 5 E. & B. 746. Where the plaintiff for his own purposes, and without any request by the defendant express or implied, left his goods on the defendant's premises, and upon distress put in by the defendant's landlord, paid the rent and ransomed his goods, it was held, distinguishing Exall v. Partridge, that he could not recover the amount ; England v. Marsden, L. E. 1 C. P. 529. This case was, however, questioned in Edmunds v. Wallingford, 14 Q. B. D. 811, where also Griffinlioofe v. Daubuz was explained upon the facts ; see The Orchis, 15 P. D. 38, and infra, p. 159. Secondly, Where the defendant has adopted and enjoyed the benefit of the consideration, for in that case the maxim applies, omnis ratihabitio retrotraliitiiret mandato cequiparatur . See Pawle v. Gunn, 4 B. N. C. 448; Barber v. Brown, 1 C. B. N. S. 121, 151. With regard to this proposition, however, it must be observed that a person cannot be said in law to adopt or ratify an act, unless it purports to be done on his behalf ; seej>6TBowen, L.J., Falcke v. Scottish, d:c. Co., 34 Ch. D. 234, 250. A request to do an act will not be implied from the mere fact that a benefit is enjoyed by reason that the act was done. Thus if a person who is interested in, but not the sole benelicial owner of, a life policy, pay the premiums and so save the policy from lapsing, the mere fact that the other beneficinries derive advantage from the pay- ments gives him no riglit to be rei)aid by them ; Leslie v. French, 23 Ch. D. 552 ; Falcke v. Scottish, d-c, Co., supra ; Re Winchilsea's Policy Trusts, 39 Ch. I). 168 ; Strutt v. Tippclt, 62 L. T. 475. Again, if one tenant in connnon of LAMPLKlCiH V. BKATIIWAIT. ] 43 a house expend money on its repair, the other tenant is not Uable to repay any portion of tlie money, merely because he enjoys the benefit of the repairs ; Leigh v. Dickeson, 15 Q. B. D. 60, 65. Thirdly, Where the phiintiff voluntarily does that where- unto the defendant was legally compellable, and the defen- dant afterwards, in consideration thereof, expressly promises ; Wennall v. Adney, 3 B. & P. 250, in notis ; Winr/ v. Mill, 1 B. & Aid. 104; Selw. N. P., 8th ed., p. 57, n. 11 ; Payyiter V. Williams, 1 C. & M. 818. But it must be observed that there is this distinction between this and the two former cases, viz., that in each of the two former cases the law will imply the promise as well as the request, whereas in this and the following case the jwomise is not implied, and the request is only then implied when there has been an express l^romise ; Atkins v. Banwell, 2 East, 504. Fourthly, In certain cases, where the plaintiff voluntarily does that to which the defendant is morally ,ihovighTioi legally, compellable, and the defendant afterwards, in consideration thereof, expressly promises ; see Lee v. Muggeridge, 5 Taunt. 36; Watson v. Turner, B. N. P. 129, 147, 281; Trueman V. Fenton, Cowp. 544 ; Atkins v. Banwell, 2 East, 504. Every moral obligation is not perhaps sufficient for this Moral obliga- purpose ; see j^c^' Lord Tenterden, Littlcjield v. Shee, 2 ^^°""^' B. & Ad. 811. Indeed it seems clearly settled by the elaborate judgment of the (>). B. in Eastwood \. Kenyon, 11 A. it E. 452, that a mere moral obligation, however sacred, is not a sufficient foundation for a binding promise, and that the class of considerations derived from moral obli- gation includes only those cases in which there has been a legal right which is become devoid of legal remedy. Such, for instance, is the case of a promise b}^ a debtor Le^al rights whose liability is barred by the Statute of Limitations ; see ^^^^^''^"'^'^ *^^ ^ . . remedy. notes to Whitcomhy. W]iiting,post, and LatoucJtex. Latouche, 3 H. & C. 576. Before the Infants' Relief Act, 1874, a debt not legall}^ binding, because incurred during infancy, was a sufficient consideration for a promise to pay, made after full age ; Williams v. Moor, 11 M. & W. 263 ; but by s. 2 of that Act no action can be brought on any such promise ; see also 55 Vict. c. 4, s. 5. Another instance, before the Bankruptcy Act, 1849, was the case of a bankrupt discharged from debts b^^his certificate, but whose moral obligation, though devoid of legal sanction, was considered capable of sustaining a new express promise 144 LAMPLEIGH V. BRATHWAIT. Past cohabita- tion. Past services. No promise implied to pay for su])]ioit of cliilflreii. to pay a debt so discharged, and such a promise might have been made either before or after the certificate ; see Trueman V. Fenton, Cowp. 544 ; Kirkpatrick v. T'attersall, 13 M. & W. 766. S. 204 of the above Act annulled the legal efficacy of such promises even though under seal, and made them honorary obligations only. This section was re-enacted in substance by s. 164 of the Bankruptcy Act, 1861. Both Acts were repealed in 1869, and no similar provision was re- enacted in the Bankruptcy Act, 1869. It was nevertheless held that such a promise is bad ; Heather v. Wehh, 2 C. P. D. 1 ; unless there be new consideration ; Jakeman v. Cook, 4 Ex. D. 26 ; and such a promise, although made for fresh consideration by a compounding debtor before the comple- tion of the composition, is bad; Exp. Barroiv, 18 Ch. D. 464. The Bankruptcy Act, 1883, like that of 1869, contains no section in terms avoiding such promises. As another instance of a debt barred by statute being held a good consideration, may be added Flight v. Reed, 1 H. & C. 703, where bills of exchange, given after the repeal of the usury laws, in renewal of bills accepted as a security for a loan while those laws were in force, and void under them, were held enforceable. The tendency of modern decisions has been to confine the legal efficacy of moral obligation to the cases above mentioned. Thus, where a man seduced a woman, and, after cohabitation had ceased, by wa}' of compensation, ex- pressly promised to pay a yearly sum for her support, that promise was held not to be binding in law ; Beaumont v. Reeve, 8 Q. B. 483. See also Ilulse v. Huhe, 17 C. B. 711, where it was held that a payee could not maintain an action on a promissory note given as a gratuity for past services and in the expectation of future services, there being no contract binding him to serve, and therefore no consideration for the note. Compare Maddison v. Alderson, 8 App. Cas. 467. Whether a father impliedly undertakes to repa}^ any person supporting his child whom he deserts was doubted in Urmston v. Neivcomen, 4 A. & E. 899. It seems that no such undertaking would be implied by law. Parke, B., in Seaborne v. Maddy, 9 C. & P. 497, said, "No one is bound to pay another for maintaining his children, either legitimate or illegitimate, except he has entered into some contract to do so. Every man is to maintain his own children as he himself shall tliink proper; and it requires a contract to T,AMPLEIGH V. BllATHVVAIT. 145 enable another person to do so, and charge him for it in an action." The same rule was laid down in Mortimore v. Wright, 6 M. & W. 48*2, where Lord Abinger said, "In point of law, a father who gives no autiiority and enters into no contract, is no more liable for goods supplied to his son than a brother, or an uncle, or a mere stranger would be ; " and Parke, B., said, " It is a clear principle of law, that a father is not under any legal obligation to pay his son's debts, excejDt, indeed, by proceedings under the 43 Eliz., by which he may, under certain circumstances, be compelled to suj)- port his children according to his ability ; but the mere moral obligation to do so cannot impose any legal liability ; " see Shelton v. Sjjrinf/ett, 11 C. B. 452. In Bazeley v. Forcler, L. R. 3 Q. B. 559, a tradesman recovered from a father the price of clothes supplied for his child by order of his wife, who w^as living apart through no fault of her own, and had obtained the custody of the child by an order of the court ; but the ground of the decision was that, the child being hy act of law in the wife's custody, necessaries for the child were necessaries for the wife herself. The mother of an illegitimate child is bound by 4 & 5 Will. IV. c. 76, s. 71, to maintain it while she is unmarried or a Avidow ; but if she die, without having made a will in its favour, her estate is not legally liable for its support ; Ruttinger v. Temple, 4 B. & S. 491 . The future maintenance of a child is, of course, a sufficient Future main- consideration for a promise ; Jennings v. Brown, 9 M. & W. teuance. 496; and in Smith v. Roche, 6 C. B. N. S. 223, and Knowl- mmi V. Bluett, L. R. 9 Ex. 307, the father of bastard children was held liable on a promise to their mother to pay her an annuity, in consideration of her undertaking to maintain them. Such a promise need not be in express terms, but may be implied from circumstances ; Blaelcbiirn v. Mackeij, 1 C. & P. 1 ; Law v. Wilkin, 6 A. & E. 718 ; though, accord- ing to Lord Abinger in Mortimore v. Wright, supra, " In order to bind a father in point of law for a debt incurred by his son, you must prove that he has contracted to be bound, just in the same manner as you would prove such a contract against any other person, and it would bring the law into great uncertainty if it were permitted to juries to impose a liability in each particular case according to their o\vn feelings or prejudices." A remarkable exce^Dtion from the rule, that a promise Exception, in to pay may be implied from a previous request, occurs case of barris- in the case of a barrister, who can claim no remuneration that promise S.L.C. — VOL. I. 10 146 LAMPLEIGH V. BRATHWAIT. implied from request. Physicians 21 & 22 Vict, c. 90, s. :jl (now le- pealed). 49 & oO Vict. c. 48, s. (J. Arbitiatois. ^\'llf•^e cove- nant reVjutH liroiiiise. for services performed at his client's request, as liis pro- fession rebuts the implication of a promise, which would otherwise have arisen. " The relation of counsel and client in litigation creates the incapacit}^ to make a contract of hiring as an advocate. It follows that the requests and promises of the defendant, and the services of the plaintiff," a barrister claiming compensation for professional services, " created neither an obligation, nor an inception of an obli- gation, nor any inchoate right whatever, capable of being completed and made into a contract by any subsequent promise." These are the words of Erie, C.J., delivering a memorable judgment in Kennedy v. Broun, 13 C. B. N. S. 677 ; see also Mostijn v. Mostyn, L. R. 5 Ch. 457, and R. v. Doutre, 9 App. Cas. 745. It has been held, however, that a barrister may recover from a solicitor fees which the solicitor has received from his client, as money had and received to his use ; see Ex p. Colquhoun, 38 W. R. 688. Another exception from the same rule was to be found in the case of a physician, whose fee, according to usage, was an honorarium ; still, not being, like a barrister, under dis- ability, he might make express contracts, rendering his patients legally liable to pay for his services ; Veitch v. Russell, 3 Q. B. 928 ; A.-G. v. Royal Coll. of Physicians, 1 J. & H. 661, _pe?* Wood, V.-C. ; Kennedy v. Broun, supra. Under the Medical Act, 1858, s. 31, however, a physician, if duly registered {Turner v. Rcynall 14 C. B. N. S. 328), became entitled to recover reasonable remuneration for his services, unless prohibited by a bye-law of his college ; Gibbon V. Budd, 2 H. & C. 92 ; and under the Medical Act, 1886, s. 6, he can recover " any fees to which he is entitled," unless he is a fellow of a college, the fellows of which are prohibited by bye-law from recovering them. By Bye-law 170 of the Royal College of Physicians of London the fellows are proliibited from suing for " jirofessional aid rendered." It lias been said that tbc oilice of an arbitrator is honorary, and that tliei'e is no iinplit'd promise to pay him for bis ser- vices ; Vlrany v. Warne, 4 Esp. 47 ; Burrouyhes v. Clarke, 1 Dowl. 48 ; Jloyyins v. Gordon, 3 (^). B.466 ; but, in Cramp- ton V. Ridley, 20 (^ 15. D. 48, Smith, J., at Nisi Priiis, expressed a strong oi)inion that, in mercantile arbitrations, there is an implied promise; to i)ay the arbitrator. Another exception may arise wbere there is a covenant undei' Heal. That I'cbuls the inference of an implied promise to do what is covenanted ; and a subsequent ex2)ress promise LAMPLEIGH V. BRATHWMT. 147 without 7ie2v consideration is not binding ; Baher v. Harris, 9 A. c^- E.532; Middlalitch x. Ellis, 2 Exdi. 02:3 ; Matthew V. Blackmore, 1 H. I'i: N. 762. Upon the question, whiit ^vill aniDuut to evidence of a Evidence of request where it is necessary to prcjvc; one, see Alexander v. ^''^'^l^^''**'^- Vane, 1 M. el' W. 511, where A. and B. went to C.'s shop, A, ordered goods, and B. said in A/s presence that he would pa}' for them if A. did not. This was hehl evidence of a request from A. to B. to pay in case of liis own default. A principal is bonnd to indemnify his agent against the Prinripal and natural consecmences of all acts done by him in pursuance ''^n*^"^' '^'^l^ . „ i . ■ , . , . . custom 01 of the authority conferred upon him ; and ii m obedience market, to any custom or usage of the business, or any rule of the market in which his principal has deputed him to act, or otherwise in the regular course of his em})loyment, he pays money on behalf of his principal, a request to make the payment will be implied ; Siitto)i v. TatJiam, 10 A. & E. 27 ; Taylor \\ Stray, 2 C. B. N. S. 175 ; Smitli v. Lindo, 5 Id. 587 ; llosewarne v. Billituj, 15 Id. 316 ; Bowring v. Shepherd, L. Ft. 6 Q. B. 809 ; Read v. Anderson, IB Q. B. I). 779 ; Ilartas v. Bihhons, 22 Id. 254. A person who employs a broker to sell shares on the Stock Exchange must indemnif}^ him against any liabilit}' he may incur to the buyer under any rules of the Stock Exchange if such rules are reasonable ; Smith V. Pieynolds, m L. T. 808. One of the most singular, perhaps the most singular case Xaduvipac- determined on the ground of nudum pactum, is Hopkins v. il^i'^iieVpro- Lof/an, 5 M. & W. 241, where it was held that an account mise exhausts stated, and a sum thereupon found to be due to the plaintitf, ^""•~*i'^'-'''^t^°"- will not support a ])roinise to pay such sum in future, though the law would imply a promise to pa}' it i)i pra'senti. The ground of the decision appears to have been, that the pro- mise implied by law to pay in pr(cse)iti exhausted as it were the consideration, and that there was, consequently, no con- sideration left for any other i)romise ; so that it bears some analogy to Gra^iger v. Collins, 6 M. & W. 458, where a declaration that B. agreed to take A.'s house at a certain rent, and A., in consideration of the premises, promised that be should enjoy without eviction from C, was held bad for want of a consideration to support the assumpsit ; see also Brown V. Crump, 1 Marsh. 567 ; Jackson v. Cohhin, 8 M. & W. 790 ; Roseorla v. Thomas, 3 Q. B. 234 ; Kaye v. Button, 8 Scott, N. R. 495 ; and Elderton v. Emmens, 4 H. L. C. 624. In McManus v. Bark, E. B. 5 Ex. 65, an 10 2 14S LAMPLEIGH V. BRATHWAIT. attempt was made to set up in answer to an action a promise analogous to that sued upon in ILypkins v. Logan. The defendant made a promissoiy note. In an action by payee's executor on the note, a subsequent agreement between defen- dant and the payee that the sum secured b}' the note should be paid by instalments with interest, was held to be no answer to the action, inasmuch as there was no considera- tion for the agreement, which was therefore binding on neither part}'. In Hiypkins v. Logan, as has been just observed, a debt payable in lynesenti was held no considera- tion for a promise to pay in futnro ; but in Walker v. Rostron, 9 M. & W. 411, the Court of Exch. held that a debt payable in fiitnro was a good consideration for a promise by the debtor's agent to appropriate funds in his hands by way of security for the debt. The distinction seems to be between an executed transfer and an rxeentory promise. In Kaye V. Dutton, 8 Scott, N. R. 495, Tindal, C.J., after citing Hopkins V. Logan, and other cases of that class, points out the possibility of a distinction between them and cases of executed consideration from which no promise can be implied by law, intimating that possibly, although considerations of the former class are only capable of supporting the promise implied by law, yet those of the latter may be capable of supporting any promise otherwise unobjectionable. No de- cision, however, was pronounced upon that point. And it seems impossible to state any rational distinction between the latter class of cases and moral obligations of pure gratitude for favours past, which, as we have seen {ante, pp. 143-4), will not sustain a promise. The question was again much discussed, but not decided, in LJhhrton v. Emmens, 4 H. L. C. 624 ; see also Lattimore v. Garrard, 1 Exch. 809. Principle of It is perhaps upon the i)rinciple that a gift while executor}' and .sale" of ^ ^^ viidinn jxirtuni, and therefore incapable of being enforced, chattels. that a parol gift of chattels is held to pass no ])roperty to the donee without delivery ; Irons v. Sviallpiece, 2 B. & Aid. 551 ; Shower v. Pilrk, 4 Exch. 478 ; Cochrane v. Moore, 25 Q. B. D. 57 ; or, at least, without a change of possession conse(iuent upon the gift ; Kilpin v. llatley, (1892) 1 Q. B. 582. The pi'operty may be passed by a contract of sale for valuable consideration without delivery ; but whether it does pass or not depends upcm the intention of the parties; see the Sale of Goods Act, 1893, ss. 17, 18; which is but declaratory of the common law; see Dixon v. Yates, 5 H. »V Ad. 340; Seath v. Mnore, 11 ^\^\^. (^is. 350. LAMPLEIGH V. BKATHWAIT. 149 It has been above stated tliat one of the cases in which ^^is'it of , • 1 • 1 • 1 • surety ajjainst an express request is unnecessary, and in whicli a promise pHncipaC will be i)iiplie(l, is that in which the plaintiff has been compelled to do that to which the defendant was legally compellable. On this principle depends the right of a surety who has been damnified to recover an indemnity from his principal ; Toussaint v. Martinnant, 2 T. R. 100 ; Fisher v, Falloirs, 5 Esp. 171 ; Fmeri/ v. Clark, 2 C. B. N. S. 582. Thus, the indorser of a bill, who has l)een sued by the holder, and has paid part of the amount, being a surety for the acceptor, may recover it back as money paid to his use and at his request ; Poicnal v. Ferrand, 6 B. k C. 439. So may the acceptor where, under the circumstances, e.g., by reason of a composition or the like, the bill ought not to have been negotiated, or ought to have been taken up by some other person ; Hawleij v. Beverley, 6 M. & Gr. 221 ; Horton. v. Riley, 11 M. & W. 492 ; Hooiier v. Tr^fry, 1 Exch. 17». But then the surety must have been compelled, Surety must i.e., he must have been under a reasonable obligation and compelled to necessit}', to pay what he seeks to recover from his principal; pay- for, if he improperly defend an action, there will be no implied duty on the part of his principal to reimburse him the costs, His rights as unless the action was defended at the principal's request ; incurred in Pioach v. Thompson, 1 M. & Ivl. 487 ; Gillett v. Ilippon, Id. resisting 406; Kniyht v. Huyhes, Id. 247; Smith v. Compton, 3 ''^^™' B. & Ad. 407; Short v. Kcdloway, 11 A. .t E. 28, uhi jjer Lord Denman, " No person has a right to inflame his own account against another, by incurring additional expense in the unrighteous resistance to an action he cannot defend ; " see Walker v. Ilatton, 10 M. & W. 249 ; Tindall v. Bell, 11 Id. 228 ; and Ronneherg v. Falkland Islands Co., 34 L. J. C. P. 34. But if he make a reasonable and prudent May make compromise, he will be justified in doing so ; SmitJi v. comiiromise. Compton, supra ; Dixon v. FaiV'-ns, 30 L. J. Q. B. 137 ; and where the claim is of an unliquidated nature and needs Investigating investigation, it seems that he may, unless expressly for- bidden, incur the expense of investigating it, or at least that very slight evidence is enough to raise an inference that the person ultimately liable has assented to his doing so ; Blyth V. Smith, 5 M. & Gr. 405. It seems to be for the jury in each case to say whether, Question for in defending and incurring the costs sought to be recovered, ' " ' the surety pursued the course which a prudent and reason- able man, unindemuified, would pursue in his own case, and 150 LAMPLEIGH V. BRATHWAIT. if the jury find that lie did, the costs may be recovered ; Tindall v. Bell, supra ; Broom v. Hall, 7 C. B. N. S, 503 ; The Legatees, 1 Swa. Ad. 168; Mors Le Blaiiclt, v. Wilson, L. K. 8 C. P. 227, overruled hy B ax cndale v. L. C. li- D. li. Co., L. K. 10 Ex. 35 ; Fisher v. Val de Travels Co., 1 C. P. D. 511 ; Hammond v. Busseij, 20 Q. B. D. 79. How- ShoiilJ con- ever, it is always advisable for the surety to let his principal bu piincipa . -^j^Q^y when he is threatened, and request directions from him ; for the rule laid down by the K. B. in Smith v. Compton, 3 B. i.'t Ad. 407, is, that "the effect of want of notice (to the principal) is to let in the party, who is called upon for an indemnity, to show that the plaintiff has no claim in respect of the alleged loss, or not to the amount alleged ; that he made an improvident bargain, and that the defendant might have obtained better terms if an opportunity had been given him. . . . The effect of notice to an indem- nifying party is stated by Buller, J., in Ditjjield v. Scott, 3 T. 11. 376, recognised in Jones v. Williams, 7 M. & W. 493 : ' The purpose of giving notice is not in order to give a ground of action ; but if a demand be made, which the party indemnifying is bound to pay, and notice be given to him, and he refuse to defend the action, in consequence of which the person indemnified is obliged to pay the demand, that is equivalent to a judgment, and estops the other party from saying that the defendant in the first action was not bound to pay the money ; ' " see Parker v. Lewis, 8 Ch. 1035, 1058. See also E.'s. C. 1883, 0. XVI., rr. 48 ct seq., as to third party proceedings since the Judicature Act. Distinction j^ ig yg^v necessary in this place to observe the distinction where con- ' ^ ^ • i •/• it tract is to do between a contrnct to mdemnify, or a contract to do the Koiiicthinf,' ^f,^.y thin(i to ivhlch the contractee is liable, the breach of (lillerent from f '' . .... . , tliitt to which which, consequently, may raise an obligation to indemnify ii contracted is ^^^q contractee against such liability, and a contract to do liable. • 1 1 1 , • 1 , something not precisely the same as that to which the con- tractee is liable. In the latter case the Court of Exch. has held, that the costs occasioned by an action against the contractee on such liability were not recoverable over ; Penley v. Watts, 7 M. & W. 601. There a lessee, who had made an under-lease containing covenants not precisely the same as those in the original lease, was held not entitled to recover fidm ])is underlessee the costs of an action brought against liini by his own lessor for breach of the covenants in tlie original lease. Both in that case, and in Walker v. Hatton, 10 M. cV W. 249, which affirms it, rellections were LAMPLEIGH V. BRATHWAIT. 151 cast upon Neale v. Wi/Uie, 3 B. & C. 533, which maj' be considered as finally (n'erruled hy Lnpan v. Hall, 4 C. B. 598, wliere it was held that a lessee, evicted fm- breach of cove- nant, could not recover the value of the lease from his sub- lessee, whose sublease did not contain any covenants the performance of which would necessarily have included a performance of the covenants in the original lease. See Sedgwick on Damages, 325 ; Hornhi/ v. Cardwell, 8 Q. B. D. 329, 333 ; Pontifex v. Foord, 12 Q. B. D. 152. On the same ground as the liability of a principal to Contribution reimburse his surety, depends the right of one surety or suretiesandco- joint contractor, who has been oblicfed to satisfy the whole contractors. demand, to recover a proportionable contribution from his fellow surety or contractor. He is a person who has been compelled to satisfy a demand, parcel of which his fellow was compellable to satisfy ; Cowell v. Edwards, 2 B. & P. 268 ; Turner v. Darics, 2 Esp. 478 ; Browne v. Lee, 6 B. & C. 697 ;. Deering v. WincheJsea, 2 B. & P. 270 ; Kemp v. Finden, 12 M. & W. 421; Repiolds v. 11 heeler, 10 C. B. N. S. 561 ; and Whiting v. Burhe, 6 Ch. 342, a case in which the co-sureties were bound by separate instruments. If, how- ever, one has become surety at the instance of the other, par ticularly if that other has received from the principal a separate indemnity for himself, it will be different ; Turner V. Davies, sujrra ; see Thomas v. Cook, 8 B. & C. 728. A surety's right to reimbursement from the principal accrues, toties qiioties, as often as he is compelled to make a payment ; that to contribution from a surety does not accrue till it is ascertained that one surety has paid more than his just proportion of the debt, after which it accrues, toties quoties, on the occasion of each payment that he is subsequently forced to make; Davies v. Humphreys, 6 M. & W. 168; Ex p. Snowdon, 17 Ch. D. 44. And he may recover con- tribution according to the number of sureties, without reference to the number of princijials ; Kemp v. Finden, 12 M. & W. 421. Where there were two sureties to a bond, and, upon the death of one, a new bond was given by the surviving surety and a new surety, all rights being reserved against the estate of the deceased surety, it was held that the estate of the deceased was liable to contribute one third ; Coles V. Peyton, (1893) 3 Ch. 238. In e(iuity the solvent sureties are liable to contribute inter se to the whole amount, Peter Y. Ilicli, 1 Cha. K. 19; Hole v. Harrison, 1 Cha. Ca. 246; Layer v. Nelson, 1 Vern. 456; whereas at law the LAMPLEIGH V. BRATHWAIT. Personal re- presentatives. I'artnerB. proportion recoverable seems to have been determined by the number of original sureties ; see per Bayley, J., Browne V. Lee, 6 B. eV, C. 697 ; Batard v. Hawes, 2 E. & B. 287 ; but this is probably a case which falls within the provisions of the Judicature Act, 1873, s. 25, sub-s. 11, that where rules of law and equity conflict the latter shall prevail. At law a surety could only obtain contribution from a co- surety when he had actually paid more than his own propor- tion ; Daries v. Humphreys, and Ex p. Snowdon, supra. In equity, however, which now prevails, a surety against whom judgment has been given, or a claim proved, for the full amount, can, before he has paid anything, proceed against his co-surety and the creditor, and obtain an order that the co- surety pay his proportion to the creditor, and that the creditor shall not enforce his judgment against him for the full amount ; if the creditor is not made a party to such pro- ceedings an order will be made that the co-surety indemnify the other, when he has paid his proportion, from all further liability; Wolmerliausen \. Gidlick, (1893) 2 Ch. 614 ; see English d- Scottish Co. v. Flatau, 36 W. B.. 238 ; Johnstone V. Salvage Ass., 19 Q. B. D. 458, 460. All the co-sureties are entitled to the benefit of any security which has been taken by anyone of them to indem- nify himself against the liability undertaken ; Steel v. Dixon, 17 Ch. D. 825 ; Berridge v. Berridge, 44 Id. 168. As to the right of a joint contractor to contribution, see Lord Kenyon's judgment in Merryweather v. Nixan, post ; Abbot V. Smith, 2 W."b1. 947 ; Hutton v. Eyre, 6 Taunt. 289 ; Bayne v. Stone, 4 Esp. 13 ; Burnell v. Minot, 4 Moore, 340 ; Holmes V. Williamson, 6 M. & S. 158; and Batard v. Hawes, supra. Where several have employed another to do work for their common benefit, there is an implied undertaking by all to contribute rateably inter se ; Edger v. Knapp, 6 Scott, N. E. 707 ; 5 M. & Gr. 755 ; Sjwttisivoode's Case, 6 De G. M. & G. 345. And where, by the nature of the case, the represen- tative of any party dying is to have the same benefit as the deceased would have hail if he had lived, the law will imply the like promise on the part of the deceased, that his representative shall contribute, notwitlistanding that he is under no direct liability, in a court of law, to the common creditor ; J'r'mr v. llonbroir, 8 M. it W. 873 (where the count was in the ixdc/dtuliis i'orm i\)v money paid to the use of the executor) ; and see the judgment in Batard v. Halves, 2 E. k, B, 296. It is otherwise, indeed, where the LAMPLEIGH V. BEATHWAIT. 158 joint contractors are partners, for then justice could not be done between them without bahmcing the partnersliip accounts, which is the office of a court of equity ; Saddler v. Nixon, 5 B. & Ad. 936 ; unless the partnership was merely in an isolated transaction, Wilson, v. Ciittinf/, lU Bing. 436 ; or the transaction was separate from the partnership, Sedgicick v. Daniell, 2 H. & N. 319 ; and see French v. Styrimj, 2 C. B. N. S. 357. Here may be mentioned the statutory remedy given to Remedy ot sureties in cases in which the creditor, whose demand has '^^^^^*^^'^- been satisfied, holds securities against the principal debtor or against parties liable to contribute. The Mercantile Law The Meicau- Amendment Act, 1856, s. 5, provides that, " every person Amendment who, being surety for the debt or duty of another, or being ^ct, 1856, liable with another for any debt or duty, shall pay such debt (,_ 97 g. 5. or perform such duty, shall be entitled to have assigned to him, or to a trustee for him, every judgment, specialty, or other security, which shall be held by the creditor in respect of such debt or duty, whether such judgment, specialty, or other security shall or shall not be deemed at law to have been satisfied by the payment of the debt or performance of the duty, and such person shall be entitled to stand in the place of the creditor, and to use all the remedies, and, if need be, upon a proper indemnity, to use the name, of the creditor, in any action or other proceedings at law or in equity, in order to obtain from the principal debtor, or any co-surety, co-contractor, or co-debtor, as the case may be, indemnifica- tion for the advances made and loss sustained by the person who shall have so paid such debt or performed such duty, and such payment or performance so made by such surety shall not be pleadable in bar of any such action or other proceedings by him : Provided always, that no co-suret}', co-contractor, or co-debtor shall be entitled to recover from any co-surety, co-contractor, or co-debtor, by the means aforesaid, more than the just proportion to which, as between those parties themselves, such last-mentioned person shall be justly liable." This enactment extends to the case of a co-dffendant who pays the whole of the debt recovered against all the defendants jointly, and entitles him to an assignment of the judgment ; BdtcJiellor v. Lawrence, 9 C. B. N. S. 543. A surety who has paid the creditor is entitled to the benefit of a judgment obtained by the creditor against the principal debtor and sureties, although the judgment has not been actually assigned to him ; Lightbown v. M'Mi/ii, 154 LAMPLEIGH V. BRATHWAIT. No contribu- tion among tort feasors. But rule con- fined to cases where know- ledge that act was wrongful. 33 Ch. D. 575. When one surety has paid the debt, and has taken an assignment of securities from the creditor, lie may sue, or prove against, a co-surety for the full amount of the debt, but can actually recover only the amount which the co-surety is liable to contribute ; Morgan v. Hill, (1894) 3 Ch. 400. The surety for a buyer, who pays the vendor, is entitled to the benefit of the vendor's lien ; Imperial Bank v. London Docks Co., 5 Ch. D. 195. A surety to the Crown, who has paid the debt of his principal, is entitled to the Crown's priority, if the principal's estate is insolvent ; Manisty v. Churchill, 39 Ch. D. 174. On a refusal to assign, an action must be brought to obtain the assignment, and the proceeding must not be b}' motion ; Phillips v. Dickson, 8 C. B. N. S. 391. No action for contribution is maintainable by one wrong- doer against another, although the one who claims contribu- tion may have been compelled to satisfy the Avhole damages arising from the tort committed by them both. This was decided in Merryweather v. Nixan, post, p. 383, where Lord Kenyon, in his judgment, having laid down the general principle, observed that " the decision would not affect cases of indemnity where one man employed another to do acts not unlawful in themselves, for the purpose of asserting a right." " From the inclination of the court, in Philips v. Biggs, Hard. 164, from the concluding part of Lord Kenyon's judgment in Merryweather v. Nixan, and from reason, justice, and sound policy, the rule that wrongdoers cannot have contribution against each other is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act ; " jx'i' Best, C.J., Adamson V. Jarris, 4 Bing. 72 (see per Lord Herschel, Palmer v. Wick Co., (1894) A. C. 318, 324). Accordingly in Betts v. Gihhins, 2 A. & E. 57, such an action was held to be main- tainable. There, the defendant consigned to the plaintiffs goods for N. ; some were delivered, but the rest continued in the i)laintiffs' hiinds until N.'s bankruptcy ; thereupon the plaintiffs, by the defendant's orders, refused to deliver them to the assignees, who brought an action of trover; the plaintiffs compromised it by paying the value of the goods together with the costs, and bi'ought this action against the defendants for indemnity. They were held to be entitled to recover. " 'J'hc )»iiiici|)l(' laid down in MerryweatJier v. Nixan,^' said Tiiuntdii, J ., " is too plain to be mistaken. Tlic law will not iiiiply an indemnity between jvrongdoers. LAMPLEIGH V. BllATHWAlT. 155 But the case is altered ichere the matter is indifferent in itself, and ivJien it turns itpon circumstances u-hetlier the act he wroiifi or not. Tlu; act done here by cliaii I^lctcJicv. vent arrear, pleaded a payment, under threat of distress, of ground-rent to the superior landlord. It was urged, 1st, that this amounted to a set-off, and w^as not pleadable in replevin ; 2nd, that this was a payment by the tenant in his own wrjong, for that no man can make another his debtor by voluntarily paying the debt of that other. But the court said, it was not a set-off, but a payment ; and that the pay- ment was not voluntary, but compulsory, for it was made under threat of distress, which the superior landlord had power to levy. In Johnson v. Jones, 9 A. & E. 801), the same principle was applied to a payment of interest due upon a mortgage prior to the lease ; though in Boodle v. Canibell, 8 Scott, N. R. 104, a payment by a tenant of a proportional jjart of the rent to a person who claimed part of the demised premises by title paramount to the land- lord, and who demanded the rent after it fell due, so that there was nothing in the case that could be considered as an eviction, was held no answer to the landlord's action for rent, not being a payment of any charge upon the land, or of any debt due from the landlord. In Baker v. Greenhill, 3 Q. B. 148, it was held that where lands charged with the repair of a bridge were occupied by a person not the owner, the occupier, although primarily responsible to the public for the repairs, was entitled to reimbursement from the owner. It is not necessary, for the purpose of rendering the pay- Need not be ment one by compulsion, that the superior landlord should of ,iistipss.' actually threaten to distrain ; for a demand by one who has power to distrain is equivalent to a threat of distress ; and such a payment "is no more voluntary than a donation to a beggar who presents a pistol; ''per Best, C.J., Carter v. Carter, 5 Bing. 406 ; see Pitt v. Purssord, 8 M. .^ W. 538. 158 LAMPLEIGH V. BRATHWAIT. Assumpsit by tenant for excess. Demand iinnecessarj- where legal right in payee. Exceptions. Express covenant. No money paid to delen- dant's use. Hed qumrc. (icrif-rfd rule where one ])crHOji'.s goods seized for debt of another. It was stated, as has been alrendy observed, b}' Burrough, J., in Tai/lor\. Zamira, that, if the payment made by the tenant to the head landlord had exceeded the sum due from him to his lessor, he might have sued his lessor in assumjjsit for the surplus. This is a corollary of the general rule we are discussing, viz., that, if A. be compelled to pay the debt which B. is legally compellahle to satisfy, A. may sue B. for the amount, and the law implies a previous request from B. to A. to pay the debt, and a subsequent promise to reimburse him. It seems unnecessary that there should even be a demand by the person to whom the money is paid, if there be in him a legal right, by the exercise of which the person who pays may be damnified, unless he pay. Broufihton's Case, 5 Hep. 24 a, seems to support that proposition, and with an excel- lent reason, from the Year Book, 18 E. 4, 27 h, namely, "that terror of suit, so that he dare not go about his business, is a damnification, although he be not arrested or forced by process, &c." See also Pitt v. Purssord, 8 M. & W. 538 ; Gibbons v. Vouillon, 8 C. B. 483. A tenant does not lose his right to be saved harmless from proceedings for rent payable by his landlord, because his own rent is in arrear; Briant v. Pilcher, 16 C. B. 354. In Schlencker v. Moxeij, 3 B. & C. 789, however, where a lessee by deed, who had been distrained upon for ground rent, declared against his lessor, on an implied promise to indemnify, it was held that the covenant for quiet enjoyment by the word demise excluded such an implication. The word grant was held to have a similar effect in Baber v. Harris, 9 A. & E. 532 ; quccre since 7 & 8 Vict. c. 7t), s. 6, and 8 & 9 Vict. c. 106, s. 4 ; see ante, p. (54. In Moore v. Pifrke, 11 East, 53, the general principle was not disputed ; but the action failed, because the tenant, instead of paying tlie rent to the superior landlord, suff'ered his goods to be distrained and sold, so that, in fact, he never paid any monei/ to his lessor's use ; and, as the declaration was for money paid, he failed ; a reason apparently not approved of by the Court of Exch. in lior/ers v. Maw, 15 M. iSc \V. 444, where the goods of a joint contractor were taken uii(h'r a fi. fa. " Si)eaking generally, and excluding exceptional cases, wliere a person's gtxjds are hiwiully sisized for another's debt, tlif! owner of the goods is entitled to redeem them and to be re-inibursed by the dc4)tor the money paid to redeem tlieni ; and, in the event of the goods being sold to satisfy tlie debt, LAMPLEIGH V. BRATfLWAIT. 159 the owner is entitled to recover the vahie of them from the debtor." " When it is said that the goods must be lawfull}^ seized, all that is meant is that, as between the owner of the goods and the person seizing them, the latter shall have been entitled to take them ; " Edmunds v. Wallingford, 14 Q. B. D. 811, C. A. So in a case where a ship was arrested in an action in rem by her master for a disbm'sement, the mortgagees of some shares, who paid the amount of the claim in order to release the ship and take possession under their mortgage, were held entitled to recover the amount from the owners of the other shares who were severally liable for the disbursements; The Orchis, 15 P. D. 38. In Grijf'enhoofe v. Dauhuz, 5 E. & B. 74G, the question was whether an action could be maintained to recover indemnity from the owner of land for the loss of a stack of wheat which, " while lawfully upon the land," had been distrained AVaiit of and sold for arrears of tithe rent-charge, charged upon the ^"^!^ ^' land, but not upon the owner personally. It was held that v. Daubuz^ the action would not lie, there being " no allegation showing iiny privity entitling the plaintiff to i-ecover in any form of action." This case was explained in Edmunds v. Wcdling- ford, stipru, where the C. A. expressed their inability to understand what w^as meant by " privity " as there used, and said : " Where the owner of the goods seized is, as between himself and the person for whose debt they are seized, liable to pay the debt, it is plain that the general rule is in- applicable ; and this explains the case of Grij[fenhoofe v. Dauhuz.'" In Excdl V. Partridge, 8 T. B. 308, Exall placed his Exallv. carriage under the care of Partridge, a coachmaker, on ^'^'" Sub- premises which W\ had leased to Partridge and the tw'o other defendants. The latter had assigned their interest to Partridge, but all three were still liable for the rent under their covenant in the lease. W. having distrained the carriage for rent in arrear, Exall paid it, to release the carriage, and he was held entitled to recover the amount from the defendants in an action of assumjmt for money paid. " One person," said Lawrence, J., in his judgment, " cannot by a voluntary payment raise an assumpsit against another ; but here was a distress for rent due from the three defendants ; the notice of distress expressed the rent to be due from them edl, the money was paid by the plaintiff in satisfaction of a demand on all, and it was j^aid by com- pulsion ; therefore, I am of opinion that this action mav be 160 LAMPLETGH V. BllATHWAlT. Distinction where special contract. Spencer v. Parry. Lubbock V. Tribe. ImpIiofJ asMj/mpsit ai;ainst jicrHon ultimately liable by statute. maintained against the three defendants. The justice of the case, indeed, is that the one who must ultimately pay this money should alone be answerable here. But as all the three defendants ivere liable to the landlord for the rent in the first instance, and as, by this payment made by the plaintiff, all the three were released from the demand of rent, I think that this action may be supported against all of them." The above words are printed in italies because there is a distinction between this case and the case where one person is compelled to make a payment to which another is liable, not, however, primarily, but only in consequence of a special agreement with the person compelled to make it. The remedy in the latter case is not on any applied assmnps'it, but on the special agreement itself. Thus in Silencer v. Parry, 3 A. & E. 331, a tenant agreed to pay certain taxes, which were by statute payable by the landlord : the landlord having been compelled to pa}' these taxes in consequence of the tenant's default, brought an action of debt for money paid : it was objected that he ouglit to have sued upon the special agree- ment, and the court held the objection fatal : " The plaintiff's payment," said Lord Denman, " delivered the defendant from no liability hut what arose from the contract between them ; the tax remained due by his default, which would give a remedy on the agreement, hut it was paid to one icho had no claim upon him, and tJierefore not to his use.'' Accord. Lubbock v. Tribe, 3 M. & W. 607, decided on the authority of Spencer v. Parry. In Lubbock v. Tribe, the plaintiffs, as K.'s agents, received from the defendant a cheque for money due from him to K., but afterwards lost it ; Mhereupon, at their request, the defendantpromisedto give them a new cheque on their giving an indemnity, which they did : no new cheque was given, and the plaintiffs having been obliged to pay the amount to K., brought an action for money paid, which was held not sustainable. "( )ii the si)ecial agreement," said Parke, B., "I think an action nii^ht be maintained, but not for money paid, because the jiaymont of the money does not exonerate the defendant from any liability at all. It is not mone}' paid to his use, it is money paid to the plaintiffs' own use, who are bound to make good the amouiit to K." But in a previous case, in which the compulsory payment was made in discharge of a party, who, though not piumarily liable, was iilllnialrli/ .s-o, not by any special agreement, but by the provisions ol' an Act of Parliament, it was decided, that the pai ty comi)elled to make the payment might recover LAMPLEIGH V. BRATHWAIT. 101 on an implied assumpsit. In Dauson x. lAnton, 5 B. & Aid. 521, goods of the plaintiff", an outgoing tenant, left by liini on his farm, were distrained for a tax payable by the tenant, but which the Act gave him power to deduct from his rent : the court decided, that, as the tax must ultimately fall on the landlord, and as the plaintiff had been compelled to pay it in order to ransom his goods, he had a right to recover the amount from the landlord, as money paid to his use. It may, perhaps, be thought, that the payment in this case is liable to the concluding observation of the court in Spencer V. Parry, that " it teas made to one icIki Jtad no claim upon the defendant, and therefore not to his vse." But though, in Dawson V. Linton, there was no claim for the tax against the defendant personally, there was a claim against the land which was his property; na}', there was one contingency, riz., that of there being no sufficient distress, in which the Act provided that the land might be seized quousque for the arrears due ; and Taylor X. Z amir a shows that a claim against a man's property is equivalent, for this piiri)ose, to one against his person ; but in Spencer v. Parry tiie defendant had quitted the premises, so that neither he nor his property could have been molested on account of the tax, at the time when the plaintiff" paid it. The doctrine laid down in Spencer v. Parry is obviously Dis^tinction inapplicable to the case where a liability has been incurred ^^'l^ere halnhty '^ ^ '' incuiTed at at the request of the defendant, and, in consequence of request of incurring such liability, the })laintiff' has been put to ex- ^ <^ '^'^^^ '"^ • pense ; because, in such a case, the payment has in truth been made in consequence of the request of the defendant, and it is innnaterial whether it has relieved the defendant from a liability or not ; Brittain v. Lloyd, 14 M, l*!: W. 70'2 ; per Parke, B., in Hutchinson v. Sydney, 10 Exch. 438 ; RishouTfi X. Biitckner, 8 C. B. X. 8. 812; see alst) Haniey X. Beverley, 6 M. .^ Gr. 221. It may be mentioned in connection with this subject that What implied a parol demise implies a covenant for quiet enjoyment, but j^?,," jg"" not for title; Bandy x. Cartn-riyht, 8 Exch. 913; ILdl v. City of London Brewery, 2 B. & S. 737 ; Rohinson x. Kilvert, 41 Ch. D. 88, 96 ; see Penfold v. Ahhott, 32 L. J. Q. B. 67 ; and Baynes v. Lloyd, (1895) 1 Q. B. 280. Here we must not omit to remark, that there is a pecu- Such pay- liaritv in the right of the tenant to recoup himself for monies '"^"*^ ^^>' , , .*.,., ^ r- ■ tenant ]ileaile(l paid ni discharge oi some burden upon tlie land, prior to his as paiimcnt. own interest therein, which distinguishes that from all other S.L.C. VOL. I. 11 162 LAMPIiEIGH V. BRATHWAIT. cases of compulsoiy pa3'jiient to the use of another. Such pa3anents, when made by a tenant under compulsion, are considered as actual 'payments of so much of his rent, and ma}' be pleaded by way of imyment, as contra-distinguished from set-off' {see Taylor v. Zamira, and Sapsford v. Fletcher, supra; Johnson v. Jones, 9 A. & E. 809); whereas, gene- rally speaking, one who has been compelled to pay the demand to which another is liable, although he may recover the amouiit in assumpsit, or set it off in an action against him- self, cannot appropriate it to the payment of a debt due by him to the person to whose use he paid it, without obtaining that person's consent. The fact is, that, in cases of land- lord and tenant, the very relation in which the parties stand to each other creates an implied consent, upon the landlord's part, that the tenant shall appropriate such part of his rent as shall be necessary to indemnify him against prior charges, and that the money so appropriated shall be considered as paid on account of rent ; but this implication is liable to be rebutted, for if the landlord were afterwards to repay the tenant the money paid by him in respect of the charge, he might recover the entire rent, eo nomine, without any deduc- Sapsfur(/ V. tion. This is well explained by Buller, J., in Sapsford v. perv!ul\ev J Fletcher: — " There is a great difference between a payment and a set-off; the former may be pleaded to an avowry, though the latter cannot. That is a good payment which is [)aid as part of the rent itself in respect of the land, but a set-off supposes a different demand, arising in a different right. It was said, that if the tenant had i)aid the ground- rent, and the landlord had afterwards repaid him, the latter could not avow for the whole rent; and my answer is this, that the pnyment there never was considered by both as a payment, and, if not, the whole rent remains due. I consider this case as a lease from the defendant to the plaintiff, at the iinnual rent of 50^., out of which 5/. per annum was to be paid to the ground landlord ; and therefore a payment of that ground-rent is a payment of so nuich rent to the defendant, and may be [)leaded in answer to the avowry for rent. Neither can we suppose, upon this record, that the defendant ever rcpsiid the plaintiff this ground-rent, for if he had, lie might have re})lied that fact." The landlord, there- fore, generally speaking (for in some cases it is taken from him l)y statute), lias the option of repaying the tenant the sum disbiused by him to discharge the prior claim upon tiie land, and may thus prevent the disbursement from LAMPLEIGH V. BRATHWATT. 168 being considered as a payment of so much of the I'ent : and the tenant may, in like manner, elect not to consider it as such, and may signify his election by bringing an action for the amount, or setting it off" in an action brought by his landlord against him for any other debt. Indeed, in some cases he must do so ; for if he owe no rent or not enough to cover the sums he has been forced to pay, he has no other means of reimbursing himself. It is, however, necessary to remark, that there are some Statutory cases which qualify the generality of the doctrine iust laid qualification ^ / o • . . ^ •' . as to deduc- down, by compelling the tenant to avail himself of his right tion of taxea, to deduct within a given period, if at all. The property-tax, ^^ ^/oTnt^or" by 46 Geo. 3, c. 65, was directed to be paid by the occupier, time. who was required to deduct it out of the next rent. In Denhy v. Moore, 1 B. & Aid. 123, the occupier paid the propert3'-tax for about twelve 3'ears, and also paid the full rent during that time, and it was held that he could not recover back the amount of rent thus over-paid. This case, indeed, was decided upon grounds not much akin to the subject of this note, for the action was for money had and received to recover back the rent over-paid, not for money paid to the defendant's use on account of property-tax ; and the court thought that, as the occupier had made the over- payments with full knowledge of the facts, he could not recover them back again ; besides, the words of the Act were express, requiring the occui^ier to deduct the tax from the rent next due, and there were good reasons for insisting on his doing so. And therefore in Stuhhs v. Parsons, 3 B. & Aid. 516, Bayley, J., said, "that he laid Denhy v. Moore out of the question, that decision being on the express words of the Property Act to prevent frauds on the revenue." Andrew v. Hancock, 1 B. & B. 37, was, like Sapsford v. Jbletcher, an action of replevin, and the defendant having avowed for six months' rent due the 29tli September, 1818, the plaintiff pleaded in bar various payments of land-tax and paving rates made to prevent his goods from being distrained between 1812 and 1818, while he was tenant to the defen- dant, which payments he claimed to deduct from the rent avowed for. The plea was decided to be bad ; principally, however, upon the express words of the Acts, by which, to use the words of Dallas, C.J., the tenant was not only alloiced, but required, to deduct these payments out of the rents of the then current years. In Stiihhs v. Parsons, svpra, a similar question arose with respect to land-tax under the Land Tax 11 2 164 LAMPLEIGH V. BRATHWAIT. Act, 1797. That also was an action of replevin; cognizance for a quarter's rent due the 25th March, 1819. The plaintiff pleaded a tender as to part, and as to the residue, that before the 25th March, and before the said time when, &c., divers sums, amounting to the residue, had been from time to time assessed on the premises for land-tax, which he had been compelled to pa}'. On demurrer the plea was held bad, for not stating when the land-tax was assessed or paid ; and it was consistent with the plea that it might have been due before the rent distrained for either accrued, or was accruing, or even before the commencement of the present landlord's title. "A payment of the land-tax," said Bayley J., "can only be deducted out of the rent which has then accrued, or is then accruing, due ; for the law considers the payment of the land-tax as a payment of so nmch of the rent then due, or growing due, to the landlord ; and if afterwards he jmys the rent in full, he cannot at a subsequent time deduct that over-payment from the rent. He may, indeed, recover it back as money paid to the landlord's use.'" "The occupier," said Holroyd, J., " has a lien on the next rent, given him by the legislature, for the land-tax paid by him ; but if he parts with the rent without making the deduction, he loses his lien, and has only his remedy by action or set-off." The same rule applies to payments of property-tax under the Income Tax Act, 1842; Cumming v. Bedhoroufili, 15 M. & W, 438; and of expenses under the Metropolitan Building Act, 1855 ; Earle v. Ma.ughni, 14 C. B. N. S. 626. The next question is, whether the limitation in point of time, established by these cases with respect to deductions SlicUons^of of land-tax, applies to deductions in respect of rent paid, rent. under dread of distress, to the superior landlord, or in respect of arrears of a rent-charge. In order to solve this question we cannot have recourse, as in case of taxes, to the express words of the legislature ; we must, therefore, resort to principles of connnon sense and general con- venience. It seems not uiu'casonable, that if a tenant, liiiving made such payments, fails to deduct at the next opportunity, he should be taken to have abandoned his right to do S(^, and to have elected to rely upon liis right of action for money paid to the landlord's use ; and, indeed, Park, J., in Carter v. Carter, 5 Bing. 409, appears to have considered this point decided by Andrew v. Hancock, to wliicli he refers as a case of ground-rent. Yet it would be hard to preclude the tenant I'rom deducting from an}^ rent How far limi- lati(ii) of time LAMPLEIGH V. BKATHWAIT. 165 not actually due or accruing at the time of his making the payments in respect of which he claims the right of deduc- tion ; for the arrears of rent-charge or liead-rent may be extremely heavy, and may cover much more than the amount of the rent then due or accruing from him to his landlord. In order, therefore, to do full justice, he ought to be allowed, after making such a pa3'ment, to retain the rent for as many succeeding rent-days as may be necessary to place him in statu quo, for he cannot prescribe to the head landlord or incumbrancer when to insist on payment, and therefore ought not to suffer by their delay. But it seems reasonable, that the tenant's right to deduct should only exist in respect of payments made by him <>f arrears which accrued due in the time of the landlord against whom he claims the deduction. Suppose, for in- stance, premises be let for 100/. a year, subject to a head- rent of lOL a year, of which live years are in arrear when the meane landlord assigns his reversion : upon the sixth year falling due the head landlord threatens to distrain, and the tenant is obliged to pay him 601. : shall he deduct the whole of that sum from his current year's rent, or only the 10/. which fell due during his present landlord's time "? [t would be hard upon the assignee to adopt the former part of this alternative. The right to deduct a pavment in respect of ground-rent ^is'it to . . deduct has not been confined to tenants, for in Doe v. Hare, 4 Tyr. giound-reut 29, the plaintiff", having recovered in ejectment on a demise not confined ' ^ ' ° '' . . . to tenants, from the 5th June, 1830, brought an action tor the mesne profits between that day and the 4th June, 183'2, wdien the sheriff executed the Jtah. fac. poss. The defendant was allow^ed, in reduction of damages, a payment in respect of ground-rent which had become due the 24th June, 1830, and also two otlier payments of ground-rent, which fell due during his occupation. The principle of Doe v. Hare was acted on in Barber v. Broicn, 1 C. B. N. S. 121. There the owner of the reversion expectant upon a term, out oi' which an underlease ^;//r autre vie had been granted, having become tenant from year to year to the iniderlessees, and having, by mistake, after the dropping of the lives, con- tinued to pay rent to the representatives of the under- lessees, it waB held, in an action l)rought by him against them to recover the amount so paid, that they were entitled to deduct payments of ground- rent, and also of i-ates and taxes. 166 LAMPLEIGH V. BRATHWAIT. Contract im- ])lip,d between lessee and assignees. Between vendor and vendee of shares. Another instance of the principle discussed in this note is furnished in the case of assignees of leases subject to covenants. Thus, where there have been several assign- ments, there is an implied contract on the part of each successive assignee to indemnify the original lessee in respect of breaches of the covenants committed during such assignee's occupation ; Moule v. Garrett, L. R. 7 Ex. 101 ; and per Parke, B., Peiileij v. Watts, 7 M. & W. 608. Upon a similar principle, in Walker v. Bartlett, 18 C. B. 845, it was held that the buyer of shares in a mining com- pany had impliedly promised to indemnif}^ the seller against calls made on him subsequently to the sale, to which he was liable by reason only of the buyer omitting to cause himself, or some one else, to be registered as owner of the shares. For the like reasons a transferor on the B. list of contributories to a company in liquidation, who has been made to pay calls, may recover the amount from his trans- feree on the A. list ; NevilVs Case, 6 Ch. 43 ; Roberts v. Cro7ve, L. R. 7 C. P. 629 ; Kellock v. Enthoven, L. R. 9 Q. B. 241 ; for " this is a principle of law which applies in all cases where one who is only secondarily liable performs under compulsion of law an obligation for which another person is primarily liable ; " j>e?' Willes, J., Roberts v. Crowe, supra. For those cases, arising out of sales of shares, in which, admitting the original seller's right to an indemnity, as established by Walker v. Bartlett, supra, the question has been from whom, according to the custom of the Stock Exchange, such indemnity may be recovered, see Grissell V. Bristowe, I.. R. 4 C. P. 36 ; Maxted v. Paine, L. R. 6 Ex. 132 ; Castellan v. Hobson, 10 Eq. 47 ; Merry v. Nickalls, 7 Ch. 733. COGGS V. BERNARD (a). TRINITY— 2 ANX^E. [REI'OUTED, 2 LORD KAYMOXD, 909.] If a man undertakes to carry goods (/;) safely and seciu-ely, he is responsible for any damage they may sustain in the carriage through his neglect, though he was not a common carrier, and was to have nothing for the carriage. In an action upon the case, the plamtiff declared, qaod cmn Bernard, the defendant, the 10th of Xoveinher, 13 Will. 3, at &c., assurripsisset, salvo et secure elevare {anglice, to take up) several hogsheads of hrandy then in a certain cellar of D., et salvo et secure deponere (anglice, to lay them down again) in a certain other cellar in Water-lane : the said defendant and his servants and agents, ta)>i ncgUgenter et improvidc, put them down again into the said other cellar, quod per defectum eune ipsius the defendant, his servants and agents, one of the casks was staved, and a great quantity of brandy, viz., so many gallons of brandy, was spilt. After not guilty pleaded, and a verdict for the plaintiff, there was a motion in arrest of judgment, for that it was not alleged in the declaration that the defendant was a common porter, nor averred that he had anything for his pains. And the case being thought to be a case of great consequence, it was this day argued seriatim by the whole court. Gould, J. I think this is a good declaration. The objection that has been made is, because there is not any consideration laid. But I think it is good either way ; and that any man, that undertakes to carry goods, is liable to an action, be he a common carrier, or whatever he is, if through his neglect they are lost, or come to any damage ; and if a prtcmiHin be laid to be given, {a) S. C, Com. 133; 1 Salk. 26; 2 transcribed from the iMSS. Reports of Salk. 735; 3 Salk. II; Holt. 13, 131, Herbert Jacoh,'E3(i., oi the Inner Tcnqyh, 528 ; 3 Ld. Kaym. 163. There is a reportof written with his own hand." this case, to<. ^■cri., in the i/a?"r/ra.(;c MSS., [h] See Jones on Bailments, 60. No. 66, and 182, therein said "to be 168 COGGS V. BERNARD. (Gould, J.) then it is without question so. The reason of the action is, tlie jyarticular trust reposed in the defendant, to icliieh he lias concurred hy his assumption, and in the executing which he has miscarried by his neglect. But if a man undertakes to build a house, with- out anything to be had for his pains, an action will not lie for non-performance, because it is nudum pactum. So is the 3 Hen. G, 36. So if goods are deposited with a friend, and are stolen from him, no action will lie ; 29 Ass. 28. But there will be a difterence in that case upon the evidence, how the matter appears : if they were stolen hy reason of a gross neglect in the bailee, the trust will not save him from an action ; otherwise, if there be no gross neglect. So is Doct. et Stud. 129, upon that difference. The same difference is, where he comes to goods by finding ; Doct. et Stud, nbi supra ; Ow. 141. But if a man takes upon him expressly to do such a fact safely and securely, if the thing comes to any damage by his miscarriage, an action will lie against him. If it be only a general bailment, the bailee will not be chargeable, without a gross neglect. So is Keilw. 160 ; 2 Hen. 7, 11 ; 22 Ass. 41 ; 1 E. 10; Bro., Action sur le case, 78. Sonthcote's Case is a hard case indeed, to oblige all men, that take goods to keep, to a special acceptance that they will keep them as safe as they would do their own, which is a thing no man living that is not a lawyer could think of ; and indeed it appears by the report of that case in Cro. Eliz. 815, that it was adjudged by two judges only, viz., Gawdy and Clent^h. But in 1 Vent. 121, there is a breach assigned upon a bond conditioned to give a true account, that the defendant had not accounted for SOL ; the defendant showed that he locked the money up in his master's warehouse, and it was stolen from thence, and that was held to be a good account. But when a man undertakes specially to do such a thing, it is not hard to charge him for his neglect, be- cause he has the goods connuitied to his custody upon those terms. PowYS, J., agreed upon the neglect. Powell, J. The doubt is, because it is not mentioned in the declariitiou tliat the defondiuit liiid imylliiug for his pains, nor that ho was a common porter, which of itself imports a hire and that he is to be paid for his pains. So that the question is, whether an action will lie against a man for doing the office of a COGGS V. BEKNAKD. ] G9 friend, when there is not any particuhar neglect shown. And T hold, an action will lie, as this case is. And in order to make it out, I shall first show that there are great authorities for me, and none against me ; and then, secondly, I shall show the reason and f/ist of this action ; and then, thirdly, I shall consider Sontlt- cute's Case. 1. Those authorities in the llegister, 110 a, b, of the pipe or wine, and the cure of the horse, are in point ; and there can be no answer given them, but that they are writs which are framed short. But a writ upon the case must mention everything that is material in the case ; and nothing is to be added to it in the count, but the time and such other circumstances. But even that objection is answered by East. Entr. 13 c, where there is a declaration so general. The year-books are full in this point : 43 Edw. 3, 33 a, there is no particular act showed ; there indeed the weig^it is laid more upon the neglect than the contract. But in 48 Edw. 3, 6, and 19 Hen. 6, 49, there the action is held to lie upon the undertaking, and that, without that, it would not lie ; and therefore the undertaking is held to be the matter traversable, and a writ is quashed for want of laying a place of the undertaking. 2 Hen. 7, 11, 7 Hen. 4, 14, these cases are all in point, and the action adjudged to lie upon the undertaking. 2. Now to give the reason of these cases, the [/ist of these actions is the undertaking. The party's special assunqysit and undertaking obliges him so to do the thing, that the bailor come to no damage by his neglect. And the bailee in this case shall answer accidents, as if the goods are stolen ; but not such accidents and casualties as happen by the act of God, as fire, tempest, &c. (c). So it is, 1 Jones, 179, Palm. 548; for the bailee is not bound upon any undertaking against the act of God. Justice Jones, in that case, puts the case of the 22 Ass., where the ferryman overladed the boat. That is no authority, I confess, in that case ; for the action there is founded upon the ferryman's act, viz., the overlading the boat. But it would not have lain, says he, without that act ; because the ferryman, not- withstanding his undertaking, was not bound to answer for storms. But that act would charge him without any under- taking, because it was his own wrong to overlade the boat. But (c) See the observations of the Court in Taylor v. dddiceU, 3 B. & S. 826. 170 COGGS V. BERNARD. (Powell, J.) bailees are chargeable in case of other accidents, because they have a remedy against the wrong-doers : as in case the goods are stolen from him, an appeal of robbery will lie, wherein he may recover the goods ; which cannot be had against enemies, in case they are j)lundered by them ; and therefore in that case he shall not be answerable. But it is objected, that here is no con- sideration to ground the action upon. But as to this, the differ- ence is, between being obliged to do the thing, and answering for things which he had taken into his custody upon such an under- taking. An action indeed will not lie for not doing the thing, for want of a sufficient consideration : but yet if the bailee will take the goods into his custody, he shall be answerable for them ; for the taking the goods into his custody is his own act. And this action is founded upon the warranty, upon which I have been contented to trust you with the goods, which, without such a warranty, I would not have done. And a man may warrant a thing without any consideration. And therefore, when I have reposed a trust in you upon your undertaking, if I suffer, when I have so relied upon you, I shall have my action. Like the case of the Countess of Salop (r/). An action will not lie against a tenant at will generally, if the house be burnt down. But if the action had been founded upon a special undertaking, as that, in con- sideration the lessor would let him live in the house, he promised to deliver up the house to him again in as good repair as it was then, the {del) action would have lain upon that special under- taking. But there the action was laid generally. 3. SoiitJicote's (e) Case is a strong authority ; and the reason of it comes home to this, because the general bailment is there taken to be an undertaking to deliver the goods at all events, and 80 the judgment is founded upon the undertaking. But I cannot tliiiik that a general bailment is an undertaking to keep the goods safely at all events : that is hard. Coke reports the case upon that resison ; but makes a difference where a man undertakes, specially, to keep goods as he will keep his own. Let us consider the reason of the case; for notliiiig is law that (cl) TJlc Counteas of Slirewshurifs Case, Ki^]). 83 b, tliat a general bailinciit, ami 5 Rep. 13 h. a bailnieiit to be safely kept, is all one, {(hi) See Com. 627 ; I'.urr. 1'138. was denied to bo law by the whole eourt, (c) 'I'liat notion in Soii.lkcotc'g Cnsc, 4 ex relatione m'ri Bunhiiry. COGGS V. BERNAEl). 171 is not reason. Upon consideration of the authorities there cited, I find no such difl'erence. In 9 Edw. 4, 40 b, there is such an oj)inion by Danhij. The case in 3 Hen. 7, 4, was of a special bailment, so that that case cannot go verj^ far in the matter. 6 Hen. 7, 12, there is such an opinion, by the by. And this is all the foundation of Soritlicote's Case. But there are cases there cited which are stronger against it, as 10 Hen. 7, 26 ; 29 Ass. 28, the case of a pawn. My lord Coke would distinguish that case of a pawn from a bailment because the pawnee has a special property in the pawn ; but that will make no difference, because he has a special property in the thing bailed to him to keep. 8 Edw. 2, Fitzh. Detinue, 59 (/), the case of goods bailed to a man, locked up in a chest, and stolen ; and for the reason of that case, sure it would be hard that a man that takes goods into his custody to keep for a friend, purely out of kindness to his friend, sjiould be chargeable at all events. But then it is answered to that, that the bailee might take them specially. There are many lawyers do not know that difference ; or, how- ever it may be with them, half mankind never heard of it. So, for these reasons, I think a general bailment is not, nor cannot be taken to be, a special undertaking to keep the goods bailed safely against all events. But if iff') a man does under- take specially to keep goods safely, that is a warranty, and will oblige the bailee to keep them safely against perils, where he has his remedy over, but not against such where he has no remedy over. Holt, C.J. The case is shortly this. This defendant under- takes to remove goods from one cellar to another, and there lay them down safely ; and he managed them so negligently, that for want of care in him some of the goods were spoiled. Upon not guilty pleaded, there has been a verdict for the plaintiff, and that upon full evidence, the cause being tried before me at Guildhall. There has been a motion in arrest of judgment, that the declaration is insufficient because the defendant is neither laid to be a common porter, nor that he is to have any reward for his labour, so that the defendant is not chargeable by his trade, and a private person cannot be charged in an action without a reward. (/) Boiiion s Case. See Jones, 37. (^) See Jones. 44. 172 OOGGS 1'. BERNARD. (Holt, C.J.) I have had a great consideration of this case ; and because some of the books make the action He upon the reward, and some upon the promise, at first I made a great question whether this declaration was good. But upon consideration, as this declaration is, I think the action will well lie. In order to show the grounds upon which a man shall be charged with goods put into his custody, I must show the several sorts o? bailments. And (fi) there are six sorts of bailments. The first sort (h) of bailment is, a bare naked bailment of goods, delivered by one man to another to keep for the use of the bailor ; and this I call a depositum, and it is that sort of bailment which is mentioned in Southcotes Case. The second sort is, when goods or chattels that are useful are lent to a friend gratis, to be used by him; and this is called eommodatum (i), because the thing is to be restored in s/^ccu'. The third sort is when goods are left with the bailee to be used by him for hire ; this is called locatio et condiictio, and the lender is called locator, and the borrower conductor. The fourth sort is, when goods or chattels are delivered to another as a pawn, to be a security to him for money borrowed of him by the bailor ; and this is called in Latin, vadium, and in English, a pawn or a pledge. The fifth sort is, when goods or chattels are delivered to be carried, or something is to be done about them, for a reward to be paid by the person who delivers them to the bailee, who is to do the thing about them. The sixth sort is, when there is a de- livery of goods or chattels to somebody who is to carry them, or do something about them, gratis, without any reward for such his work or carriage, which is this present case. I mention these things, not so much that they are all of them so necessary in order to maintain the proposition which is to be proved, as to clear the reason of the obligation which is upon persons in cases of trust. 1. Dcjiosittun. — As to the {k) first sort, where a man takes goods in his custody to keep for the use of the bailor, 1 shall consider for what things such a bailee is answerable. Ue is not answerable if (. (y) Uut see Doorman v. Jenkins, 2 A. 005. & K- 25tJ, 2}ost, p. 18;?, in nota. COGGS V. BERNARD. 175 under the least obligation of any one, being bound to no other care of the bailed goods than he takes of his own. This Bracton 1 have cited is, I confess, an old author ; but in this his doctrine is agreeable to reason, and to what the law is in other countries. The civil law is so, as you have it in Justinian's Inst. lib. 3, tit. 14. There the law goes further ; for there it is said : " Kx co solo tenet ur, si quid dolo commiserit : cidpce anteni nomine, id est, desidice ac negligentice, non tenetur. Itaque secunts est qui parum diligenter ciistoditam rem furto amiserit, quia qui negligenti amico rem custodiendam tradit, non ei, sed suce facilitati, id imjmtare debet." So that such a bailee is not chargeable without an apparent gross neglect. And if there is such a gross neglect, it is looked upon as an evidence of fraud. Nay, suppose the bailee undertakes safely and securely to keep the goods, in express words ; yet even that would not charge him with all sorts of neglects ; for if such a promise were put into writing, it would not charge so far, even then. Hob. 34, a covenant, that the covenantee shall have, occupy, and enjoy certain lands, does not bind against the acts of wrong-doers. 3 Cro. 214, ace, 2 Cro. 425, ace, upon a promise for quiet enjoyment. And if a promise will not charge a man against wrong-doers, when put in writing, it is hard it should do it more so, when spoken. Doct. and Stud. 130 is in point, that though a bailee do promise to re-deliver goods safely, yet if he have nothing for the keeping of them, he will not be answerable for the acts of a wrong-doer. So that there is neither sufficient reason nor authority to support the opinion in Southcote's Case. If the bailee be guilty of gross negligence, he will l)e chargeable, but not for any ordinary neglect. 2. Commodatum. — As to the second sort of bailment, viz., com- modatum, or lending gratis, the borrower is bound to the strictest care and diligence to keep the goods, so as to restore them back again to the lender ; because the bailee has a benefit by the use of them ; so as if the bailee be guilty of the least neglect he will be answerable ; as if a man should lend another a horse to go west- ward, or for a month ; if the bailee go northward, or keep the horse above a month, if any accident happen to the horse in the northern journey, or after the expiration of the month, the bailee will be chargeable ; because he has made use of the horse contrarv to 176 COGGS V. BEEXAKD. (Holt, CJ.) the trust he was lent to him under ; and it may be, if the horse had been used no otherwise than he was lent, that accident would not have befallen him. This is mentioned in Bracton nbi supra: his words are: (_/>) " Is cmtem cni res aliqiia uteiida datur, re ohligatur, qiue commodata est, sed magna differentia est inter mutuum et commodatum ; quia is qui rem mutuani accepit, ad ipsam restituendam tenetur, vel ejus pretium, si forte incendio, ruind, navfragio, aut latronum vel hostium incursu, consnm2)fa fuerit, vel deperdita, suhtracta vel ablata. Et qui rem utendam accepit, non sufficit ad rei custodiam, quod talem diligentiam adhibeat, qualem siiis rebus projjriis adhihere solet, si alius earn diligcntius j^otuit cnstodire ; ad vim autem viajorem, vel casus Jortuitos non tenetur quis, nisi culpa sua intervenerit. Ut si rem sibi commodatam domi, secum detulerit cum peregre profectus fuerit, et illatn, incursu hostium vel pradonum, vel naufragio, amiserit, non est dubium quin ad rei restitutionem teneatur." I cite this author, though I confess he is an old one, because his opinion is reasonable, and very much to my present purpose, and there is no authority in the law to the contrary. But if the bailee put this horse in his stable, and he were stolen from thence, the bailee shall not be answerable for him. But if he or his servant leave the house or stable doors open, and the thieves take the opportunity of that, and steal the horse, he will be chargeable ; because the neglect gave the thieves occasion to steal the horse. Bracton says, the bailee must use the utmost care ; but yet he shall not be chargeable, where there is such a force as he cannot resist. 3. Locatio rei. — As to the third sort of bailment, scilicet locatio, or lending for hire, in this case the bailee is also bound to take the utmost care, and to return the goods when the time of the hiring is expired. And here again I must recur to my old author, fol. G2 b, iq) : " Qui pro usn. vestimentorum, ami vel argenti, vel alterius ornamenti, vel jvmenti, mercedem dederit vel j)romiserii, tidis ab eo drsideraiur cusfodia, (jvalem (r) diligentissimus pater- familias svis rebus adliibet, quain si pnesiiterit, et rem aliquo casu (p) Tliis is cited from IJniclon, lili. 3, {(/) Just. Inst. lib. 3, tit. 24, text 5. c. 2, iHt, l)Ut is in cU'ect llie text of .lusl. (r) See Jones, 87 ; and jwsi, p. 191. Inst. lib. 3, til. 14, text 2. COGGS V. BERNARD. 177 amiserit, ad rem restituendani uon toichitur. Nee snfficit aliqiiem talem diligentiam adliihere, qualeni suis rebus propriis adhiherit, nisi talem adhihncrit, de qua superius dictum est' From whence it appears that, if goods are let out for a reward, the hirer is bound to the {s) utmost diligence, such as the most diligent father of a family uses ; and if he uses that, he shall be dis- charged. But every man, how diligent soever he be, being liable to the accident of rob])ers, though a diligent man is not so liable as a careless man, the {t) bailee shall not be answerable in this case, if the goods are stolen. 4. Vadium. — As to the fourth sort of bailment, viz. radium, or a pawn, in this I shall consider two things ; first, what property the pawnee has in the pawn or pledge; and secondly, for what neglects he shall make satisfaction. As to the first, he has a special pro- perty, for (u) the pawn is a securing to the pawnee, that he shall be repai4 his debt, and to compel the pawnor to pay him. But if the pawn be such as it will be the worse for using, the (x) pawnee cannot use it, as clothes, &c. ; but if it be such as will be never the worse, as if jewels for the purpose were pawned to a lady, she (ij) might use them. But then she must do it at her peril ; for wdiereas, if she keeps them locked up in her cabmet, if her cabinet should be broke open, and the jewels taken from thence, she would be excused ; if she w^ears them abroad, and is there robbed of them, she will be answerable. And the reason is, because the pawn is in the nature of a deposit, and, as such, is not liable to be used. And to this effect is Ow. 123. But if the pawn be of such a nature, as the pawnee is at any charge about the thing pawned, to maintain it, as a horse, cow, &c., then (z) the pawnee may use the horse in a reasonable manner, or milk the cow, &c., in recompence for the meat. As to the second point, Bracton, 99 b, gives you the answer : ' Creditor, qui pignus accepit, re obligatur,et ad illam )-cstitueiid<()n tcnetur; ct cum hujusmodi res in pignus data sit utriusque gratia, scilicet dehito7'is, quo 7nagis ei pecunia crederetur, et creditoris, quo inagis (s) Comm. Vinn. in Just. Inst. lib. 3, (x) S. P., 3 Salk. 268. Holt, 528. tit. 25, text 5, n. 2, 3. See post, pp. Salk. 522. 190, 191. {y) Ibid. See Jones, 80, 81. {t) Ld. Eaym. 1087. (s) Ibid. See Jones, SO, 81. Dis- {u) S. P., 3 Salk. 268. Holt, 528. tress, being a sort of pledge, may not be Salk. 522. used ; Smithy. Wright, 6 H.& N. 821, 826. S.L.C. — VOL. I. 12 178 COGGS V: BERNARD. (Holt, C.J.) ei in tuto sit crcditum, snfficit ad ejus rei custodiam diUfientiam exactam adhihere, quam si prcEstiterit, et rem casu. amiscrit, securus esse possit, nee impedietur creditum petere'' (a). In effect, if a credi- tor takes a pawn, he is bound to restore it upon the payment of the debt ; but yet it is sufficient, if the pa\Ynee use true diHgence, and he will be indemnified in so doing, and, notwithstanding the loss, yet he shall resort to the pawnor for his debt. Agreeable to this is 29 Ass. 28, and Southcote's Case is. But, indeed, the reason given in Southcote's Case is, because the pawnee has a special property in the pawn. But that is not the reason of the case ; and there is another reason given for it in the book of Assize, which is indeed the true reason of all these cases, that the law requires nothing extraordinary of the pawnee, but only that he shall use an ordinary care for restoring the goods. But, indeed, if the money for which the goods were pawned be tendered to the pawnee before they are lost, then the pawnee shall be answerable for them ; because the pawnee, by detaining them after the tender of the money, is a wrong-doer, and it is a wrongful detainer of the goods, and the special property of the pawnee is determined. And a man that keejDS goods by wrong must be answerable for them at all events ; for the detaining of them by him is the reason of the loss. Upon the same difference as the law is in relation to pawns, it will l)e found to stand in relation to goods found. 5. Locatio operis faciendi. — As to the fifth sort of bailment, viz. a delivery to carry or otherwise manage, for a reward to be paid to the bailee, those cases are of two sorts ; either a delivery to one that exercises a 2>uUic employment, or a delivery to a ^nivate person. First, if it be to a person of the first sort, and he is to have a reward, he is bound to answer for the goods at all events. And this is the case of the common carrier, connnon hojauan, master of a ship, &c. : which case of a master of a ship was first adjudged, 2G Car. 2, in the case of Mors v. Slue, Sir T. Eaym. 220, 1 Vent. 190, 238. The law charges this person, thus entrusted, to carry goods against all events, but acts of God, and of the enemies of the khig. For though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he is (a) Tliis is alHO tlic ellt'ct oCJust. Inst. lib. 3, tit. 14, text A, JJe pignore. C0G08 V. BEHNARD. 179 chargeable. And this is a pohtic establishment, contrived by the policy of the law {h), for the safety of all persons, the necessity of whose affairs oblige them to trust these sorts 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 dealings with them, by combining with thieves, &c., and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point. The second sort are bailees, factors, and such like. And though a baily is to have a reward for his management, yet he is only to do the best he can. And if he be robbed, &c., it is a good account. And the reason of his being a servant is not the thing ; for he is at a distance from his master, and acts at discretion, receiving rents and selling corn, &c. And yet if he receives his master's money, and keeps it locked up with reason- able cai;e, he shall not be answerable for it, though it be stolen. But yet this servant is not a domestic servant, nor under his master's immediate care. But the true reason of the case is, it would be unreasonable to charge him with a trust, further than the nature of the thing puts it in his power to perform it (c). But it is allowed in the other cases, by reason of the necessity of the thing. The same law of a factor. 6. Mandatum. — As to the sixth sort of bailment, it is to be taken, that the bailee is to have no reward for his pains, but yet that by his ill management the goods are spoiled. Secondly, it is to be understood, that there was a neglect in the manage- ment. But thirdly, if it had appeared that the mischief hap- pened by any person that met the cart in the way, the bailee had not been chargeable. As if a drunken man had come by in the streets, and had pierced the cask of brandy ; in this case the defendant had not been answerable for it, because he was to have nothing for his pains. Then the bailee having under- taken to manage the goods, and having managed them ill, and so by his neglect a damage has happened to the bailor, which is the case in question, what will you call this? In Bracton, lib. 3. 100, it is called mandatii.m. It is an obligation which arises (b) Just. Inst. lib. 4, tit. 5, text 3. (c) See per Bowen, L.J. , The Jloorcock, See Viiin. Comm. in Just. Inst. lib. 3, 14 P. D p. 70. tit. 27 text 11, n. 2. 12 2 180 COGGS V. BERNARD. (Holt, CJ.) ex mandato. It is what we call in English an acting by com- mission. And if a man acts by commission for another gratis, and in the executing his commission behaves himself negli- gently, he is answerable. Vinnius, in his commentaries upon Justinian, lib. 3. tit. 27. 684 {d), defines mandatum to be contractus quo aliquid gratuito gerendum committitur et acciintur. This undertaking obliges the undertaker to a diligent management. Bracton, iibi supra, says, ' CuntraJiitur etiam obligatio, non solum scripto et verbis, sed et consensu, sicut in contractibus bonce fidei, ut in emptionibus, venditionibus, locationibus, conductionibus, socie- tatibus et inandatis.' I do not find this word in any other author of our law, besides in this place in Bracton, which is a full authority, if it be not thought too old. But it is supported by good reason and authority. The reasons are, first, because in such a case a neglect is a deceit to the bailor. For when he entrusts the bailee upon his undertaking to be careful, he has put a fraud upon the plaintiff by being negligent, his pretence of care being the per- suasion that induced the plaintiff to trust him. And a breach of a trust undertaken voluntarily will be a good ground for an action ; 1 Eoll. Abr. 10 ; 2 Hen. 7, 11 ; a strong case to this matter. There the case was an action against a man who had undertaken to keep an hundred sheep, for letting them be drowned by his default. And the reason of the judgment is given, because, "when the party has taken upon him to keep the sheep, and after suffers them to perish in his default, inasmuch as he has taken and executed his bargain, and has them in his custody, and, after, he does not look to them, an action lies ; for here is his own act, viz. his agreement and promise, and that after broke of his side, that shall give a sufficient cause of action." But, secondly, it is objected, that there is no consideration to ground this promise upon, and therefore the undertaking is but nudum ])actuni. ]3ut to this I answer, that the ou-ner's trnsitlng him uitJi the goods is a siijjiricut com^idcrution to oblige him to a careful management. Indeed, if the agreement had been executory, to carry these ))randies from the one place to {d) This is tlic .siiiiK; ii.'> HI), o tit. '2(5, of niudcni editions of tho institutes. COGGS V. BERNARD. l8l the other such a day, the (e) defendant had not Ijecn l)Ound to carry them. But this is a different case, for assumpsit does not only signify a future agreement, but, in such a case as this, it signifies an actual entry upon the thing, and taking the trust upon himself. And if a man (/) will do that, and mis- carries in the performance of his trust, an action will lie against him for that, though nobody could have compelled him to do the thing. The 19 Hen. 6, 49, and the other cases cited by my brothers, show that this is the difference. But in the 11 Hen. 4, 33, this difference is clearly put, and that is the only case concerning this matter which has not been cited by my brothers. There the action was brought against a carpenter, for that he had undertaken to build the plaintiff a house within such a time, and had not done it, and it was adjudged the action would not lie. But there the question was put to the court — what if he had built the house unskilfully ? — and it is agreed in that case an action would have lain. There has been a question made. If I deliver goods to A., and in consideration thereof he promise to re-deliver them, if an action will lie for not re-delivering them ; and, in Yelv. 4, judgment was given that the action would lie. But that judgment was afterwards reversed ; and, according to that reversal, there was judgment afterwards entered for the defendant in the like case ; Yelv. 128. But those cases were grumbled at ; and the reversal of that judgment in Yelv. 4 was said b}' the judges to be a bad resolution, and the contrary to that reversal was afterwards most solemnly adjudged, in 2 Cro. 667, Tr. 21 Jac. 1 (p), in the King's Bench, and that judgment affirmed upon a writ of error. And yet there is no benefit to the defendant, nor no considera- tion in that case, but the having the money in his possession, and bein.7 trusted with it, and yet that was held to be a good consideration. And so a bare being trusted with another man's goods must be taken to be a sufficient consideration, if the bailee once enter upon a trust, and take the goods into his possession. The declaration in the case of Mors v. Slue (/<), was drawn i)y the greatest drawer in EikjJiukJ in that time ; and in that declaration, as it was always in all such cases, it was (e) See Jones, 56, 57, 61. See Ji^nos, 50, 51. (/) Just. Inst. lib. 3, tit. 26, text 11. [h) SirT. Raym. •220 ; 1 Vent. 190, 238. ((/) JFhcnfhij V. Low, Cro. Jac. 66.S. 182 COGGS V. BERNARD. (Holt, C.J.) thought most prudent to put in, that a reward was to be paid for the carriage. And so it has been usual to put it in the writ, where the suit is by original. I have said thus much in this case, because it is of great consequence that the law should be settled in this point ; but I do not know whether I may have settled it, or may not rather have unsettled it. But however that happen, I have stirred these points, which wiser heads in time may settle. And judgment was given for the plaintiff. Doctrine of principal ease. Confulence a siifticieiit consideration. Distinition Iii-tweeii in)i|iTi;ikiii^ t(i kmp, tu keep Kiildii, ami to insure. The case of Cofif/s v. Bernardis one of the most celebrated ever decided in Westminster Hall, and justly so, since the elaborate judgment of Lord Holt contains the first well- ordered exposition of the English law of bailments. It is the case generally cited for the proposition that " if a person undertakes to perform a voluntary act, he is liable if he performs it improperly, but not if he neglects to perform it;" per Willes, J., Skelton v. L. d: N. W. R. Co., L. E. 2 C. P. 631, 636. The point directly involved, viz. that if a man undertake to carry goods safely, he is responsible for damage sustained by them in the carriage through his neglect, though he was not a common carrier, and was to have nothing for the carriage, is now clear law, and forms part of a general proposition in the law of j)rincipal and agent, which may be stated thus : The confidence induced hy undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it ; see Shilliheer v. Glynn, 2 M. & W. 143 ; Whitehead v. Greetham, 2 Bing. 464. And this proposition includes cases stronger than that reported in the text. For there Bernard had undertaken to lay the goods down safely, whereby he introduced a special term into his contract ; for it will be seen from the judgments, ])urticularly Ijord Holt's, that notwithstanding what was said by Lord Coke in SoutJicote's Case, there is a difference between the effect of a gratuitous undertaking to keej) or carry goods, and of a gratuitous und(!rtaking to keep or carry them^safely. The distinction ouglit, however, to be observed between actual insni-ance of the safety of the goods, and a contract to take due care for their safety. Tlie latter seems to include ill! oltligatioii to cai-ry safely; Collett v. L. d- N. W. 11. Co., 16 Q. li. U.S4 ; see JlJake v. G. IT. li. Co., 7 H. .t N. 987. , COGGS V. BEKNAKD. 183 Under tlie rule just laid down, a gratuitous and voluntar}- Gratuitous .11 •' -111- 111 af^ent liable agent who has given no special undertaking, though tJie lor ^,'ros.s degree of his responsibility is greatly inferior to that of a ne^'ligenci; hired agent, is bound not to be guilty of f/rnss nctiligence. Thus in Wilkinsun v. Covcrdalc, 1 Esp. 74, the defendant undertook graiuitonsly to get a fire policy renewed for the plaintiif, but, in doing so, neglected formalities, the omission of which rendered the policy inoperative. Upon its being doubted at Nisi Prius whether an action would lie under these circumstances, Erskine cited a MS. note of Wallace v. Telfair (2 T. R. 188, n,), wherein Buller, J., ruled, under similar circumstances, that, though there was no considera- tion for one party's undertaking to procure an insurance for another, yet, where a party voluntarily undertook to do it, and proceeded to cany his undertaking into efi'ect by getting a policy underwritten, but did it so neglige nth/ or iinskilfiilli/ that the party could derive no benefit from it, in that case he wa^ liable to an action ; in which distinction Lord Kenyon acquiesced. So in Beaucliauip v. Powley, 1 M, i'^-. Rob, 38, where the defendant, a stage-coachman, received a parcel to carry gratis, and it was lost upon the road, Lord Tenterden directed the jur}^ to consider whether there was great negligence on the defendant's part, and the jury, thinking that there was, found a verdict against him. So too, in Doorman v. Jenkins, 2 A. it E. 25G, in assu))ij)sit Lourman v. against the defendant, as bailee of money entrusted to him to keep without reward, it was proved that he had given this account of its loss, viz. that he was a cofi'ee-house keeper, and had placed the money in his cash-box in the tap-room, which had a bar in it, and was open on Sunday, though the other parts of his house were not, and out of which the cash-box was stolen upon a Sunday. Lord Uenman told the jury that it did not folh)W, from the defendant's having lost his own money at the same time as the i)laintitf's, that he had taken such care of the i)laintiti''s mone}' as a reason- able man would ordinarily take of his own ; and he added, that that fact afforded no answer to the action, if tliey believed that the loss occurred from gross negligence. The jury having found a verdict for the plaintiff, the court refused to set it aside. In Gihlinx. M'Miillev, L. 11. 2 P. C. 317, a customer Giblinr. deposited with his bank a strong box containing securities, himself retaining the key. The bank received nothing for keeping the box. It was placed in the strong room where Jenkins. M'Mullci. COGGS V. BERNARD. the securities of the bank were kept, and to which their cashier had access. The cashier stole some debentures from the box and absconded. The customer having obtained a yerdict in an action against tlie l)ank, a rule was made absolute for a non-suit in the Colonial Court on the ground that there was no evidence of gross negligence, for which alone the bank as gratuitous bailees could be held liable. This decision was upheld hy the J.C. on appeal. It is clear, from the above decisions, that a gratuitous bailee or other agent is chargeable when he has been guilty of ciross negligence ; and it is equally clear, both from the words of the judges in several of the above-cited cases, and also from express decisions, that for no other kind of negli- gence is he liable, except in the single case which shall by- and-by be specified. In iJoorman v. JenJdns, supra, Patteson, J., said : " It is agreed on all hands that the defendant is not liable, unless he has been guilty of gross negligence.'' " The counsel," said Taunton, J., " properly admitted, that as this bailment was for the benefit of the bailor, and no remuneration was given to the bailee, the action could not be maintainable except in the case of gross negligence." In Shiells v. Blackhurne, 1 H. Bl. 158, the defendant, having received orders from his correspondent in Madeira to send some cut leather thither, emj)loyed G. to execute the order. G. accordingly prepared it, and sent it, along with a case of leather of the same description belonging to himself, to the defendant, who, to save the expense of two entries, voluntarily and without cnuq)ensation, by agreement with G., made one entry of both cases, but entered them by mistake as wrought leather, instead of dressed leather. In con- sequence of this mistake, both the cases were seized. An action having been brought by the assignees of G., who had become bankrupt, against the defendant, to recover compen- sation for the loss, the general issue was pleaded, and there was a vei'dict for the plaintiff. But the court set it aside, and granted a new trial, upon the ground that the defendant was not guilty either of gross negligence orfraud. This case was much remarked upon in Doorman v. Jenkins, which it resembled in the circumstance that the bailee in each case lost pi'opcrly of his own along with that entrusted to him. " Shiells V. ]ilachhurne," said Taunton, J., " created at first some degree of doubt in our minds. It was said that the court in tliat case treated the (piestion as a matter of law, and set aside the verdict, because the thing charged, viz. COGGS V. BEKNAKU. 185 the folse description of the leather in tlie entry, did not amount to gross nefilifiencc, and therefore the jury had mistaken the law. I do not view the case in that light. The jury there found that in fact the defendant had heen guilty of negligence, but the court thought they had drawn a wrong conclusion as to that fact." In Dartnall v. Hoivard, Dartnall v. 4 B. & C. 345, the declaration stated, that in consideration that the plaintitf, at the defendants' request, would employ them to lay out 1,400/. in purchasing an annuity, the defen- dants promised to perform their dut}' in the premises, and that the.y did not i^erform it, but, on the contrary, laid out the money in the purchase of an annuity on the personal security of two insolvent persons. The court, after verdict, arrested the judgment upon the ground that the defendants appeared to be gratuitous agents, and it was not averred that they had acted either with negligence or dishonesty. See also Bourne v. Diggles, 2 Chit. 311 ; Moore v. Moiirguc, Cowp. 480; and CyHanlon v. Murray, 12 Jr. C. L. 11. 161. From the two classes of cases just enumerated, it is plain Supposed ex- that an unpaid agent is liable for gross negligence, and skilHmplied. equally plain that he is liable for nothing less. From the latter of these propositions there is, however, as has been already stated, one exception, and it is contained in the following words of Lord Loughborough in Sltiells v. Black- hurne, sujrra : "I agree with Sir William Jones, that where a bailee luidertakes to perform a gratuitous act, from which the bailor alone is to receive benefit, then the bailee is only liable for gross negligence ; but if a man gratuitously under- takes to do a thing to the best of his skill, wliere his situation or jyrofession is sucli as to inqily skill, an omission of that skill is imputable to him as gross negligence. If, in this case, a ship-broker, or a clerk in the custom-house, had under- taken to enter the goods, a wrong entry would in tlieni be gross negligence, because their situation and emplo3'ment necessarily imply a competent degree of knowledge in making such entries." It perhaps may be more correct to call this Explained, a distinction engrafted on the general doctrine, than an exception from it ; since it does not render any unpaid agent liable for less than gross iiegligence; but renders that ^ross negligence in some agents, which would not be so in others; see Wyld v. Pick ford, 8 M. & W. 443 ; Harmer v. Cornelius, 5 C. B. N. S. 246 ; and Wilson v. Brett, 11 M. & W. 113, where it was laid down that an unpaid agent is bound to use sucJi skill as he is shown to j^ossess, and is guilty of culpable 1S6 COGGS V. BEKIsARD. Gross negli- trcnce, what. Relative to degree of care exjiected. negligence if he do not, and Rolfe, B., said that there is no ditl['erence between negligence and gross negligence, that it is the same thing, with the addition of a vituperative epithet. See Hinton v. Dibbin, 2 Q. B., p. 661, per Lord Denman. In Avstin v. M. S. d' L. R. Co., 10 C. B. 454, it was said, the phrase gross negligence is " more correctly used in de- scribing tlu; sort of negligence for which a gratuitous bailee is responsible." See PotJder, Conirat de Depot, cap. 2, art. 1, s. 72. " There is a certain degree of negligence," said Pollock, C.B., in Bcal v. ,S'. Devon R. Co., 5 H. & N. 881, " to which every one attaches great blame. It is a mistake to suppose that things are not dift'erent because a strict line of demarcation cannot be drawn between them." The distinction may be between simple negligence, and negligence in spite of the better skill or knowledge which the bailee actually had, or undertook to have. " In the case of a carrier or other agent holding himself out for the careful and skilful performance of a })urticular duty, gross negligence includes the want of that reasonable care, skill, and expe- dition, which may properly be expected from persons so holding themselves out and their servants. The authori- ties are numerous, and the language of the judgments various, but for all practical purposes the rule maybe stated to be, that the failure to exercise reasonable care, skill, and diligence is gross negligence. What is reasonable varies in the case of a gratuitous bailee and that of a bailee for hire. From the former is reasonably expected such care and diligence as persons ordinarily use in their own affairs, and such skill as he has. From the latter is reasonably expected, care and diligence, such as are exercised in the ordinary and })r()per course of similar business, and such skill as he ought to liHve, namely, the skill usual and requisite in tlie luisiiiess for which he receives payment ; " Real v. S. Devon R. Co., 3 H. & C. 337. See also per Willes, J., Grill v. Gen. Iron Screw Colliery, L. K. 1 C. P. 600, 612 ; Moffalt V. Rnteman, L. R. 3 P. C. 115. \n Giblin v. McMidliii, snpvd, \^. 183, Lord Chelmsford tdok ('xcei)tiou to the i)rop(»sition that gross negligence is only negligence with a vituperative epithet, saying that from tlie time of Lord Holt's judgment in the principal case this term had been used without ohjciction as a short and con- venient mode of describing the degree of responsibility which attaclies upon a gratuitous baih'c. See, however, Campbell's Law of Negligence, p. 1 1 ; inid Oppenheim v. White Lion COGGS V. BP]RNARD. 18? Iloid Co., L. E. 6 C. P., p. 521, jwr Willes, J. ; Ciou of ments into the following six classes, viz. : — "" "'^'" "'■ I. Depositum; or a naked bailment of goods, to be kept for the use of the bailor. 11. Commodatnm. AVliere goods or chattels that are usefvd are lent to the bailee gratis, to be used by him, III. Locatio rei. ^^'here goods are lent to the bailee, to be used by him for Jtire. IV. Vadium. Pawn. V. Locatio operis faciendi. "Where goods are delivered to be carried, or something is to be done about them, for a reward to be i^aid to the bailee. VI. Mandatum. A delivery of goods to somebody, wlio is to carry them, or do something about them, gratis. Sir William Jones, in his Treatise on Bailments, objects to SirAV. Jones's this division; "for," says he, "in truth his JiftJi sort is no cousklei-ed more than a branch of the titird, and he might with equal reason have added a serenth, since the ^fiftli is capable of another subdivision." The ji/tJi of the classes enumerated by Lord Holt is, as we have seen, Locatio operis faciendi, i.e. where goods are delivered to be carried, or something is to 188 COGGS V. BERNARD. Distinction between lo- catio rei and locatio 02)cris faciendi. he done about them, for reivard to he paid to the bailee. And this, with clue submission to so great an authoritA' as Sir W. Jones, cannot be reasonabl}' treated as a branch of the third, which is Locatio rci, i.e., where goods are lent to the bailee, to he used hy liim for hire ; for there exists between them this essential difference, viz., that in cases falling under the third class, or locatio rei, the reward is paid hy the bailee to the bailor ; whereas in cases falling under the ^fiftli class, or locatio operis faciendi, the reivard is always paid hy the bailor to the bailee. It is true that in Latin both classes are described b^y the word locatio, which probably gave rise to Sir W. Jones's opinion that both ought to be included under the same head ; but then in the tliird class, locatio rei, the word locatio is used to describe a mode of bailment, viz., by the hiring of the thing hailed; whereas in the ffth class, locatio op)eris faciendi, the same word locatio is used, not to describe any mode of bailment, but to signif}^ the hiring of the man's labour 7vho is to ivork upon the tiling bailed ; for, as to the thing bailed, that is not hired at all, as it is in cases falling within the third class. If, indeed, Lord Holt had been enumerating the ditierent sorts of hirings, not of bailments, he would no doubt, like the civilians, have classified both locatio rei and locatio operis under the word hiring, since in one case goods are hired, and in the other labour. But he was making a classification not oi hirings, but of bailments; and since in cases of locatio I'ei there is a hiring of the thing bailed, and in cases of locatio operis no hiring of the thing bailed, it was impossible to place, with any degree of pro- priety, two sorts of bailment under the same class, one of which is, and the other of which is not, a bailment by way of hiring. As to the objection that Lord iloM' ?, fifth class of bailments is capable of another sub-division, there is no doubt but that it may be split, not only, as Sir W. Jones suggests, into locatio operis faciendi, where work is to be done upon the goods, and locatio operis niercium vehendarum, where they are to be carried, but into as many different sub- divisions as there are different modes of employing labour upon goods ; and, in point of fixct, the civilians, in their division of hii-ings, enumerated another class, viz., locatio nistodifc, or tiu' liii'ing of care to be bestowed in guarding a thing bailed, Aliicli is omitted by Sir W. Jones. For these reasons, it is subiiiilfcd thnt Loid Holt's classification is the correct one, and it remains to make a few remarks on each of the six classes eiiumerntcd 1)V liim. OOGGS V. BEKNARD. 189 I. Depositiim. — With respect to Depositam, which is a i. Dcpositum. l)uihneut without reward, in order that tlie hailec may keep the goods for tiie haihn-, tlie hiw respecting the bailee's Responsibility responsibility may be sunniied up in the words in which Lord Holt concludes his observations on that head of bailment, viz. " if the bailee be guilty of gross negligence, he will be chargeable, but not for any ordinary neglect." An important case respecting deposit has been already cited in this note, viz.. Doorman \. Jenkins, ante, p. 183, where, as has been stated, the question whether there had been gross negligence was left to the jury. There are some expressions in this part of Lord Holt"s judgment, from which a super- hcial reader might infer that his lordship thought that a depositary would always be secure, provided that he kept the goods deposited with as much care as his own ; but, on looking attentively at the whole context, it appears that he considered the bailee's keeping the goods bailed as he keeps If bailee keep his own, j^ather as an argument against the supposition that ^^ ^^ gross negligence has been connnitted, than as any substantive ground of discharge. " The keeping them," says his lord- ship, " as he kept his own, is an argument of his honesty ; " and consequently an argument against the supposition of gross negli- (iross neqliqencc, for Lord Holt considered qross neqliqence &^^^^ "°.^ J J J ^ ^ ^ ^ J J J necessarily almost the same thing with dishonesty. '*If," says he, rebutted. " there be such gross neglect, it is looked upon as evidence of fraud.'' And it is quite clear, especially from Doorman v. Jenkins, that gross negligence may be committed by a deposi- tary, although he may have kept the property entrusted to him with as much care as his own ; and that if it be, his negligence of his own goods is no defence ; see Gihlin v. McMullen, ante, p. 183, where the same doctrine was applied ; and also Rootle v. Wilsoi, 1 B. & Aid. 59. On the other hand, it is also clear that a depositary is not liable for an}' thing short of gross negligence ; and though Lord Coke in Svuthcote's Case, 4 Rep. 83 b, 1 Inst. 89 a, b, expressed an opinion that a depositary is responsible if the goods are stolen from him, unless he accepts them specially to keep as his own, that doctrine was completely overthrown by Lord Holt in the principal case. How far a depositary may add Acceptance on to his responsibility by inserting special terms in his promise ^^^^^°- ^'^™^- to his bailor, is a point not b}' any means clearly settled ; see Kettle v. Bromsall, Willes, 118 ; and the observations of Sir W. Jones on Southcote's Case (Jones on Bailments, 42, 3), and of Powell, J., in the principal case. 190 COGGS V. BERNARD. May not use deposit. I^espoiisibility of finder. II. Co'imno- daturn. Responsibility of bailee. JJound to ^rtat dili- gence. Liable for slight negli- gi.uce. ill. I.n.„l,„ iJailee bound t'> ordiuiuy 'liligence. A depositaiy has no right to use the thing entrusted to him ; Bac. Abr. Baihncnt, D. ; Clark v. Gilbert, 2 B. X. C. 343. AVhere a man finds goods behjnging to another, he seems bound, after he has taken them into his possession, to the same degree of care with a depositary ; see Isaac v. Clarke, 2 Bulst. 306, 312 ; 1 Pudie, 59, 126 ; Doct. & St. Di. 2, c. 28 ; but see also Bac. Abr., Bailment, D. ; and 27 Hen. 8, fol. 13, pL 35. He is guilty of hirceny if he appropriates the goods to his own use, having intended so to do when he took possession of them, and having then known, or had reasonable grounds for believing, that the owner could be discovered; see B. v. Christopher, 28 L. J. M. C. 35 ; R. v. Moore, 30 Id. 77 ; B. v. Glijde, L. R. 1 C. C. B. 139. ^Vhere goods are sent voluntarily, and without request, by one person to another, no duty is cast on the recipient with respect to them ; Hoicard v. Harris, C. & E, 253. II. Commodatum or Lending gratis. — As to Commodatum or loan, the responsibility of the bailee is much more strictly enforced in this class of bailments ; and with justice, for the loa)i to him is for his own advantage, — not, as in the case of deposit, for that of the bailor. Besides, he may justly be considered as representing himself to the bailor to be a person of competent skill to take care of the thing lent ; see Wilson V. Brett, 11 M. & W. 115, p(?7- Parke, B. He is, therefore, bound to use great diligence in the protection of the thing bailed, and will be responsible even for slight negligence ; nor must he on any account deviate from the conditions of the loan. Thus in Bringloe v. Morrice, 1 Mod. 210, 3 Salk. 271, the loan of a horse to the defendant to ride was held not to warrant him in allowing his servants to do so. But where a horse was for sale, and the vendor's agent let A. have the horse for the purpose of trying it, A. was held justified in putting a competent person upon the horse to try it, an authority to do so being implied ; Camoys v. Scurr, 9 C. A: P. 383. If, whilst the goods are in the custody uf the bailee, they are, without any negligence on his part, iiijured by the negligence of a stranger, the bailee is not liable to the bailor; Claridgc v. S. Staffordshire Traimmy Co., (1892) 1 Q. B. 422 ; see ante, p. 179. IIT. Locatio rci or Lending for Hire. — This is where goods are lent to the bailee for hire. In such case. Lord Holt tells us that the bailee is bound to use tlie utmost care. This expression, as Sir W. Jones has remarked, appears too strong, for it would placi' a hirer who pays for the use of the COGGS V. BEENARD. 19i goods on the same footing as a borrower ; and indeed Lord Holt himself qualiHes it, by citing, immediately after, a passage of Bracton, in which the care required is described to be "talis quulis diU 341. So may a bailee of any class ; Biddlc v. Bund, G B, & S. 225 ; Sheridan v. New Quaij Co., 4 C. B. N. S. 618; provided he can show that he is acting on behalf of and with the authority of the third person ; llixjers v. Lamhert (No. 2), (1891) 1 Q. B. 318 ; Boners v. Lamhert (No. 1), 24 Q. B. D. 573 ; see also the notes to Tlie Duehess of King- stoji's Case, 'post, vol. ii. A paicn being a sort of bailment, tran^ dd'endant olfcrcd to ])rove that they were in a jx-rfcctly sound state, T^ord KlU;id)or()Uf,di held that it was liis duty to have had a sufficient number of men COGGS V. BERNARD. 199 in the dock to take measures of precaution when the danger was approaching, and that he was clearly answerable for the effects of the deficienc}'. So a warehouseman, who is Warehouse- a bailee of this description, does not use ordinary diligence "'^"' about the goods entrusted to him, if he have not his tackle in proper order to crane them into the warehouse, whereby they fall and are injured ; Thomas v. Day, 4 Esp. 262. But he is not liable for loss by a mere accident, not re- ^''>t liable for suiting from his negligence ; Garside v. Trent Nav. Co., 4 ^*^'^' *^'^ '^^ T. K. 581 ; see H/jde v. Trent Nav. Co., 5 Id. 389 ; Re Webb, 8 Taunt. 443 ; Vere v. Smith, 1 Vent. 121 ; Searle v. Larerick, L. R. *J Q. B. 122. Yet, in case of a loss, the But onus of •onus is on the bailee to prove that it occurred through no „en(,g ^^ want of ordinary care on his i)art ; Mackenzie v. Cox, 9 C. & bailee. P. 632; Reeve v. Palmer, 5 C. B. N. S. 84, where an attor- ney was held liable in detinue for losing his client's deed, it not being shown how the loss occurred. Ther-e are, however, two cases in which the liability of I'^o excep- bailees falling within this class is extended very much limited lia- beyond the limit above pointed out, viz., where the bailee bilityofthis IB &n inn-keeper ov a common carrier. The extent of the inn- . ', ,.,.,.,, . . lunkeeper. keeper's liability has already been discussed in the notes to QQ,-,^J^on Calye's Case, ante, p. 115, the leading authorit}' on that subject, carrier. A few words shall be now devoted to that of the carrier. Common Carriers. — A common carrier is a person who Who is a coinmo carrier. undertakes to transport from place to place, for hire, the ''°"™^°^ goods of such persons as think fit to employ him. Such is a proprietor of waggons, barges, lighters, merchant-ships, or other instruments for the public conveyance of goods ; see the text, p. 178 ; Foncard v. Pittard, 1 T. R. 27 ; Mors v. Slue, 2 Lev. 69, 1 Vent. 190, 238, commented on in the text by Lord Holt, p. 181 ; RicJi v. Kneeland, Cro. Jac. 330 ; Maving v. Todd, 1 Stark. 72 ; Brook v. Pickwick, 4 Bing. 218 ; Ingatev. Christie, 3 C. & K. 61 ; though one of the termini be beyond the seas; Benett v. P. and 0. Steamboat Co., 6 C. B. 775 ; Crouch v. L. d- N. W. R. Co., 14 Id. 255 ; Pinciani v. L. & S. W. R. Co., 18 Id. 226 ; and though the termini be not fixed ; and, in the case of a bargeowner, though a barge be let to only one person for each voyage ; Liver Alkali Co. v. Johnson, L. R. 7 Ex. 267 ; see Hill v. Scott, (1895) 2 Q. B. 371 ; but see Scaife v. Farrant, L. R. 10 Ex. 358, and the remarks of Cockburn, C.J., in his elaborate review of this branch of the law in Nugent v. Smith, 1 C. P. D. 423. A caxman, however, who undertakes casual jobs, and does not 200 COGCS V. BERNARD. Carriers of passengers not. Nor cab- owners as to luggage. Railway companies. Tliiir lialiiliti lor pa.ssenger« luggage. ply from one fixed terminus to another, is not a common carrier ; Brind v. iJah, 2 M. k Kob. 80. The question whether the liability of a common carrier has been under- taken in an)'^ particular case is one of fact ; Tamraco v. Timothy, C. & E. 1, per Cave, J. A person who conveys only passengers is not a common carrier ; Aston v. Heaven, 2 Esp. 533 ; Chriatie v. Griggs, 2 Camp. 79 ; Sliarpe v. Grey, 9 Bing. 457. So railway companies are not cunnnon carriers oi passengers ; Blake v. G. W. B. Co., 7 H. & N. 987 ; Beadhead v. Mid. B. Co., L. R. 4 Q. B. 379 ; Wright v. Mid. B. Co., L. R. 8 Ex. 437; but see Bretherton v. Wood, 3 B. & B. 54; and Carpue v. L. d: B. B. Co., 5 Q. B. 747. Nor is a cab pro- prietor as to luggage taken with the passengers ; Bioss v. Hill, 2 C. B. 877 ; Bowles v. Hider, 6 E. & B. 207. Railway companies, though not common carriers of passengers, are common carriers of goods, including, it seems, live animals ; McManus v. L. d Y. B. Co., 4 H. & N. 327 ; Kendall v. L. d S. W. B. Co., L. R. 7 Ex. 373 ; unless exempt by some special provision ; Balmer v. Grand Junction Canal Co., 4 M. & W. 749; Pickford v. Grand Junction B. Co., 10 Id. 399 ; Parker v. G. W. B. Co., 7 Scott, N. R. 835. That is to say, they are common carriers of goods which they are specially bound by statute to carry, or profess to carry, or actually carry for persons generally, but not of goods which they have not professed to carry, and are not in the habit of carrying, or only carry under special circumstances, or subject to express stipu- lations, limiting their liability in respect of them; John- son V. Mid. B. Co., 4 Ex. 367 ; York, N. d B. B. Co. V. Crisp, 14 C. B. 527 ; Crouch v. L. d N. W. B. Co., Id. 255; Hughes v. G. W. B. Co., Id. 637; Slim v. G. N. B. Co., Id. G47 ; Aldridge v. G. W. B. Co., 15 C. B. N. S. 582 ; Harrison v. L. B. d S. C. B. Co., 2 B. & S. 152 ; cf. Birhardson v. N. E. B. Co., L. R. 7 C. P. 75 ; Bumsey v. N. E. B. Co., 14 C. B. N. S. 641 ; and Steirart v. L. d- N. W. B. Co., 3 H. tV C. 135 ; cases of excursion trains, of which the last maybe treated as overruled (seejicr ]irett, L.J., Cohrn v. ,S'. /S'. W. B. Co., L. 11. 7 Ex. 373. Probably on the same principle, in Barbour v. S. E. B. Co., 34 L. T. G7, the defendants were held not responsible for damage to furniture arising solely from improper packing. As to what Meaning of is meant by the act of God, see Nuf/ent v. Smith, 1 C. P. D. ^^ 423 ; Nitro-Phosphate Co. v. L. cC- St. K. Dock Co., 9 Ch. D. 503. However, when the increase of personal property through- How far (be- out the kingdom, and the frequency with which articles of ^p^) Habilitv great value and small bulk were transmitted from one place limited b}^ to another, began to render this degree of liability intoler- abl\' dangerous, carriers, on their part, began to insist that their employers should, in such cases, either diminish it, by entering into special contracts to that effect upon deposit- ing their goods for conveyance, or should pay a rate of remuneration proportionable to the risk undertaken. To this end, they posted up and distributed written or printed notices, to the effect that they would not be accountable for property of more than a specified value, unless the owner had insured and paid an additional premium for it. If this notice was not communicated to the employer, it was of course ineffectual ; Kerr v. Willan, 6 M. & S. 150 ; see, as to a bj^e-law not communicated, G. W. B. Co. v. Goodman, 12 C. B. 313. But if it could be brought home to his know- ledge, it was looked upon as incorporated into his agree- ment with the carrier, and he became bound by its contents ; Mayhew v. Eames, 3 B. & C. 601 ; Bowley v. Home, 3 Bing. 2; Nicholson v. Willan, 5 East, 507. Still the carrier, notwithstanding his i^rotectiou by the Carrier was notice, was bound to avoid gross negligence : and if the Ji^y^'*]^^^'^^® ' . . ^ & )D J i'"'^ liable for gross property was lost or injured by such negligence, he was re- negligence, sponsible ; Smith v. Home, 2 Moo. 18 ; Wyld v. Pickford, 8 M. & AV. 443; Butt v. G. JV. B. Co., 11 C. B. 140; Hinton v. Dihhin, 2 Q. B. 646 ; and per Lord Wensleydale and Blackburn, J., in Peek v. N. Staffordshire B. Co., 32 L. J. Q. B. 246, 250, 273 ; unless, indeed, the employer had COGGS V. BERNARD. Carriers ACT. The Carriers Act, 11 G. 4 & 1 W. 4, c. 68. S. 1. Customer required to declare value and nature of certain articles. Loss lulled his vigilance by an undue concealment of the nature of the trust imposed on him, for such conduct would have exonerated the carrier, even had he given no notice ; Batsori V. Donovan, 4 B. & Aid. 21 ; Miles v. Cattle, G Bing. 743 ; see 4 Burr. 2301 ; B. N. P. 71. Man)' questions having arisen upon the construction of these notices, and whether they had come to the customer's knowledge, the legislature stepped in, and by several enact- ments regulated the responsibility of carriers by land and water. The Carriers Act, 1830, enacts (s. 1) that no common carrier by land for hire shall be liable for loss of or injury to any articles of the following description, con- tained in any parcel or package, when their value exceeds 10/., unless at the time of delivery their value and nature were declared and the increased charge, or an engagement to pay the same, was accepted : viz., gold or silver coin : gold or silver in a manufactured or unmanufactured state : jewellery: watches: clocks: timepieces {Le Conteur v. L. S'. E. Pi. Co., 3 E. & B. 549 ; McCall v. Taylor, 19 C. B. N. S. 301) : stamps : maps {Wijld v. Pickford, 8 M. & W. 443) : writings : title-deeds : paintings {Woodward v. L. d N. W. R. Co., 3 Ex. D. 121): engravings {Boys v. Pink, 8 C. & P. 361) : pictures {Henderson v. L. d N. W. R. Co., L. R. 5 Ex. 90) : gold or silver plate, or plated articles : glass {Owen v. Burnett, 4 Tyr. 133 ; Bernstein v. Baxendale, supra ; Glover v. L. d S. W. R. Co., L. B. 3 Q. B. 25) : china : silks, manufactured or not, wrought up with other materials or not {Hart v. Baxendale, 6 Ex. 7G9 ; Bernstein V. Baxendale, sujrra ; Brunt v. Mid. R. Co., 2 H. & C. 889 ; Flowers v. *S'. E. R. Co., 16 L. T. 329) : furs {Mayhew v. Nelson, 6 C. & P. 59) : or lace {Treadwin v. G. E. R. Co., L. 11. 3 C. P. 308) ; exce\)t machine-made lace, which is excepted by the Act of 1865, 28 & 29 Vict. c. 94. The provision that the increased charge, or an engagement to pay tlie same, must have been acce])ted must be read subject to s. 2, below. " Ijoss " means loss by the carrier, and includes temporary loss by him ; Millen v. Braseh, 10 Q. B. 1). 142; and he is not liable for any consequences flowing irom the loss, as distinguished from the loss itself ; Pianeini v. L. d S. IT. R. Co., 18 C. 13. 226 ; Millen v. Brascli, supra ; but he is liable COGGS V. BERNARD. 207 for non- delivery of the goods, if tliey are not lost, or when Carriers they are found after temporary loss ; see MiUcn v. BrascJt, where Hearn v. L. & S. W. R. Co., 10 Exch. 798, was ex- plained. The carrier is protected thougli the loss or injury Injury. happens after the goods have been negligently carried beyond their destination ; Morritt v. N. E. 11. Co., 1 Q. B. 1). 302. An uncovered wagon, wdth its contents, may be a " })ack- Package. age ; " Whaite v. L. tO Y. 11. Co., L. IL 9 Ex. 67. The carrier has an insurable interest in goods the value of which has not been declared in accordance with the Act ; L. t(; N. W. R. Co. V. Glyn, 28 L. J. Q. B. 188. By s. 2, when any such parcel is delivered, and its value and S. 2. contents are declared, the carrier may demand and take an p^^rner s n^'ht ' _ '' to increased increased charge, to be notified by a notice affixed in his charge. receiving office, and customers are to be bound by such notice, without further proof that it came to their knowledge. This section limits the carrier's right to the increased charge How limited. to cases where he has both affixed the notice and demanded the charge; Bchrcus v. G. N. R. Co., 6 H. & N. 3G6. The Act applies to the case of a delivery to the carrier or his servant, whether at his receiving office or elsewhere ; Hart V. Baxendale, 6 Exch. 769 ; see Stcjjlicns v. L. <£■ S. W. R. Co., 18 Q. B. D. 121. By s. 3, carriers who omit to affix the notice, or to give, s. 3. if required, a receipt for the parcel, are i)recluded from the Effect of car- benefit oi the Act, so lar as the right to an extra cbarge is ing notice, or concerned; but are still protected from liabilitv, unless the ^otgi^'i".- '- _ • ' . receipt on de- declaration as to the nature and value of the goods is made, mand. as required by s. 1 ; Hart v. Baxendale, 6 Exch. 769. S. 4 prevents a common carrier from limiting his liability, s. 4. for articles not within the Act, hx any puhlie notice or de- Gamer's lia- . . . • bility cannot claration. Ihis, it will be observed, does not prevent lum be lindted by from limiting his liability by a special contract; and special P^^l'<-' notice. contracts are still allowed between carriers and their cus- tomers, subject in the case of railway and canal comi)anies to the provisions of the Bailwa}' and Canal Traffic Acts, stated below. S. 6 expressly provides that nothing in the s. 6. Act shall annul or affect any sj)ecial contract between a carrier and his customers for the conveyance of goods ; but this section refers only to contracts, whereb}' the carrier renounces the protection given to him by s. 1 ; Baxendale \. G. E. R. Co., L. K. 4 Q. B. 244, 254 ;" Shaic v. G. W. R. Co., (1894) 1 Q. B. 373, 879. It was held in Baxendale v. G. E. R. Co., supra, that a special contract does not de]>rive 208 COGGS V. BERNARD. Carriers Act. Special con- tracts still allowed. How inferred. "Whether no- tice brought to customer's knowledcfc. Parker v. ,S'. E. IL Co. the carrier of the protection of s. 1, unless the terms of the contract necessarily exclude it. In cases not affected by the Railway and Canal Traffic Acts, a special contract limiting the carrier's liability may be inferred, where the carrier gave specific notice of his terms to his customer and the customer subsequently sent goods to be carried without objecting to those terms ; Walker v. York d- N. Mid. R. Co., 2 ¥.. & B. 750. It may also be inferred, where the carrier, on taking the goods, gave to his customer a ticket stating or referring to his terms and the customer did not dissent ; Stewart v. L. cic N. W. B. Co., 3 H. & C. 135 ; Van Toll v. S. E. R. Co., 12 C. B. N. S. 75 ; Zunz v. S. E. R. Co., L. R. 4 Q. B, 539 ; cases where the courts applied the rule that a customer must be presumed to know what he has reasonable means of knowing, whether he avails himself of those means or not; see also Chippendale v. L. d- Y. R. Co., 21 L. J. Q. B. 22, where the carriers were held to be protected by the special contract, although the truck was defective. To the same effect were G. N. R. Co. v. Morville, 21 L. J. Q. B. 319 ; Austin v. M. L. d S. R. Co., 10 C. B. 454 ; see also Austin V. M. L. d S. R. Co., 16 Q. B. 600; Shaio v. York d N. Mid. R. Co., 13 Q. B. 347 ; Carr v. L. d Y. R. Co., 7 Exch. 707, where the injury was b}^ collision ; Foivles v. G. W. R. Co., Id. 699, where the loss occurred beyond the railway terminus ; Wyld v. Pickford, 8 M. & W. 443 ; and Scaife v. Farrant, L. E. 10 Ex. 358. Upon the question whether the carrier's special terms were so brought to the customer's knowledge as to render them part of the contract, see Henderson v. Stephenson, L. R. 2 H. L. Sc. 470 ; Harris v. G. W. R. Co., 1 Q. B. D. 515 ; Parker v. S. E. R. Co., 2 C. P. D. 416. In Hender- son V. Stej)}u')ison, sti])ra, a passenger was held not bound by conditions as to his luggage, printed on the back of his ticket, but not referred to on the front, and of which he was not in fact aware. In Harris v. G. W. R. Co., supra, the company were held entitled to the benefit of conditions as to luggage deposited at their cloak-room, printed on the back of a receipt note and referred to on the front; the plaintifi" was aware tliat there were some conditions, but did ncjt know what they were. In Parker v. S. PJ. R. Co., supira, it was laid down in the C. A. that if the customer did not know that there was i)rint on the ticket, he is not bound thereby : if he knew lliat there was such print, and knew COGGS V. BERNARD. 209 that it contained conditions, he is bound : and thongh he Carriers Act did not know or believe that the print contained conditions, he is nevertheless bound, if he had reasonable notice that the print contained conditions. This view was approved of in liicJiardsoii v. lioioitrce, (1894) A. C. 217. See also Burke V. S. E. R. Co., 5 C. P. D. 1, and Watkins v. Ihjmill, 10 Q. B. D. 178, where the cases were elaborately examined. By s. 8, the Act is not to protect carriers from their S. 8. liability to answer for loss or injury to an}^ goods arising Felony of from the felonious acts of their own servants, or to protect servants. the servant from answering for his own neglect or miscon- duct. Every person actually engaged in the performance of the contract of carriage and delivery is a servant of the carrier within the meaning of this section, though not strictly so within the decision in (Jiiarmaii v. Biirnett, 6 M. ^'^ W. 499, and the series of cases where it has been followed; Madm v. L. tO >S'. W. E. Co., 2 Exch. 415; Doolan ,v. Mid. R. Co., 2 App. Cas. 792; Stephens v, L. d- S. W. R. Co., 18 Q. B. D. 121, where a servant of the proprietor of a receiving office was held to be a servant of the company within the Act. It is to be observed that felon}' of the carrier's servant, without gross negligence on the part of the employer, was not a ground of liability in cases within the carrier's notice or special contract ; Bntt v. G. W. R. Co., 11 C. B. 140 ; G. W. R. Co. v. RimeU, 18 Id. 575 ; and that s. 8 " cannot be construed as a general enactment that common carriers by land are in all cases to be liable for theft by their servants ; " Shaw v. G. W. R. Co., (1894) 1 Q. B. 373, 398, where it was held that a special contract against liability for loss by theft of the carrier's servants is valid at common law. The case of Butt v. G. W. R. Co., supra, has been frequently misunderstood. It was not a case within the Act. The plea alleged a non- compliance with the conditions of the notice ; the plaintiff new assigned that the loss was caused by the felony of the defendants' servants ; and on special demurrer to this new assignment, the plaintiff was allowed to amend by replying a loss by felony through the defendants' gross negligence. Willes, J., is erroneously reported to have said, in Metcalfe V. L. d- B. R. Co., 4 C. B. N. S. 309, 310, that the demurrer in Butt v. G. W. R. Co. was on the ground " that carriers are not answerable at common law for the felonious acts of their servants," and in S. C, 27 L. J. C. P. 207, that the plea w'as ** an excuse under the Carriers Act." See Shaiv S.L.C. — VOL. I. 14 210 COGGS V. BERNARD. Cakrier^ Act. Contracts of carriage by land and water. Circumstances which led to Kail way and Canal Traffic Acts. 17 & 18 Vict, c. 31. 26 & 27 Vict, c. 92. 51 & 52 Vict, c. 26. V. G. W. E. Co., (1894) 1 Q. B. 381. As to evidence of a felony by the carrier's servants, see G. W. R. Co. v. Rimell, 18 C. B. 575; Kei/s v. Belfast R. Co., 9 H. L. C. 556; Vauf/hton x. L. N. W. R. Co., L. R. 9 Ex. 93 ; McQueen v, G. W. R. Co., L. R. 10 Q. B. 569 ; Turner v. G. W. R. Co., 34 L. T. 22 ; Way v. G. E. R. Co., 1 Q. B. D. 692. Where the contract is for conveyance by land and water, and the goods are lost by land, the Act applies ; Le Contenr v. L. tC- S. W. R. Co., L. R. 1 Q. B. 54; Baxen- dale V. G. E. R. Co., Id. 244; see also the Railways Regu- lation Act, 1868, post, p. 220. In a case within the Carriers Act, the carrier is not liable for a loss by his servant of the articles mentioned in the Act, even though occasioned by gross negligence not amounting to a misfeasance; Hinton v. Dihhin, 2 Q. B. 646 ; see Morritt v. N. E. R. Co., 1 Q. B. D. 302, 309. Owen v. Burnett, 4 Tyr. 133, contra, is not law. The monopoly enjoyed by railway companies led in some cases to their restricting their liability by special contracts with customers who could not afford time or expense to litigate the right to refuse to carry except u})on the terms of such contracts. Moreover, in a series of decisions from Shaw V. Y. d N. Mid. R. Co., 13 Q. B. 347, to Carr v. L. <& Y. R. Co., 7 Exch. 707, and Walker v. York d- N. Mid. R. Co., 2 E. & B. 750, the courts relaxed the rule of the older cases (see swpra, p. 205), and held customers bound by special contracts the terms of which were large enough to exclude the carrier's liability for gross negligence, mis- conduct, or even fraud (see per Blackburn, J., Peek v. N. Staffordshire R. Co., 32 L. J. Q. B., p. 246, and per Wright, J.,' Shaw V. G. W. R. Co., (1894) 1 Q. B., p. 382); which is still the rule acted upon in the case of passengers, or where the Railway and Canal Traffic Acts, noticed infra, do not appl}' ; see McCauieij v. Fnrness R. Co., L. R. 8 Q. B. 57 ; Zunz v. S. E. R.^Co., 4 Id. 539 ; Gallin v. L. <& N. W. R. Co., 10 Id. 212; and compare The J)uero,lj. R. 2 A. &E. 393; see, however, P. d 0. Steam Nar. Co. v. Shand, 3 Moo. P. C. N. S. 272, jjcr Sir W. Erie ; Martin v. G. fnd. Pen. R. Co., L. R. 3 Ex. 9. it was to correct these matters that the Railway and Canal Traffic Act of 1854 was passed, which was extended, by the Railway Chiuses Act, 1863, s. 31, and tlie Railway and Canal Traffic Act, 1888, s. 28, to traffic carried on by railway companies' vessels, and was exi)lained and amended COGGS V. BERNARD. 211 as to " through traffic," first by the Regulation of Railways Act, 1873, s. 11, and then by the Railway and Canal Traffic 36 & 37 Vict. Act, 1888, s. 25, whieli repealed s. 11 of the Act of 1873. "' ^^- 55 & 56 Vict The Acts of 1873 and 1888 have been amended by Acts of c. 44 ; 57 & ' 1892 and 1894. ^'s Vict. c. 54. The Act of 1854, by the first six sections, provides for Railway and enforcing against railway and canal companies, at the in- ^^"'^1854 ^ stance of persons aggrieved, the duty of making arrange- Equality ments for receiving and forwarding traffic of every descrip- clauses, tion without delay and without partiality. " Traffic " ^J- ,^ „ includes " not only passengers and their luggage, and goods, animals, and other things conveyed by any railway company or canal company, or railway and canal company, but also carriages, waggons, trucks, boats, and vehicles of every description adapted for running or passing on the railway or canal of any such company " (s. 1) ; see Dickson V. G. N. R. Co., 18 Q. B. D. 176. These sections have been explained and amended by the above-mentioned Acts of 1873 and 1888 ; and under the latter Act the powers of enforcing the duty imposed upon the companies is vested in the Railwa}'^ and Canal Commissioners. S. 7 of the Act of 1854 enacts, that every such company S. 7. " shall be liable for the loss of or for any injury done to any S'''}-^^|)f^/° horses, cattle, or other animals, or to any articles, goods, or neglect or thinffs, in the receiving, forwarding, or delivering thereof, ';''^*^"1'^ i" & ' f?' to' to ' ^\-^Q carnage occasioned by the neglect or default of such company or its of goods, servants, notwithstanding any notice, condition, or declara- ^j^'|,'^[j\7<^ ^' tion made and given by such company contrary thereto, or notices. in anywise limiting such liability ; every such notice, con- dition, or declaration being hereb}^ declared to be null and void." The section, however, c 1 ' • liability in for any neat cattle, per head, 15/., lor any sheep or pigs, per certain cases, head, 2/.; unless the person delivering the same to the unless the , -, , . n 1 T ici 11 J xi value declared company shall at the time of delivery, liave declared them ^nd extra to be respectively of higher value than as above mentioned ; " charge paid. 14 2 213 COGGS V. BERNARD. Railway AND Canal Traffic Act. Onus of proof of value. No special contract to be binding unless signed. Saving of Carriers Act. Construction of section. Neglect or default. Animals. Declaration. in which case the company may " demand and receive by way of compensation for the increased risk and care thereby occasioned a reasonable per-centage upon the excess of the value so declared above the respective sums so limited as aforesaid, and which shall be paid in addition to the ordi- nary rate of charge ; and such per-centage or increased rate of charge shall be notified in the manner prescribed in " the Carriers Act, 1830, and shall be binding upon the company in the manner therein mentioned. 3. That " the proof of the value of such animals, articles, goods, and things, and the amount of the injury done thereto, shall in all cases lie upon the person claiming compensation for such loss or injury." 4. That " no special contract between such company and any other parties respecting the receiving, forwarding, or delivering of any animals, articles, goods, or things as aforesaid shall be binding upon or affect any such party unless the same be signed by him or by the person delivering such animals, articles, goods, or things respec- tively for carriage." 5. That the section shall not " alter or aifect the rights, privileges, or liabilities of any such company under " the Carriers Act, 1830, with respect to articles of the descriptions mentioned in that Act. This section extends only to loss or injury occasioned by negligence, or default in the nature of negligence, on the part of the company or of their servants while acting within the scope of their employment, and does not therefore affect a special contract against loss by theft by the company's servants without such negligence or default ; Shaw v. G. W. R. Co., (1894) 1 Q. B. 373. It extends to all animals, not- withstanding proviso 2, and by that proviso the amount of damages recoverable where there is no declaration is limited only in cases of the animals which it specifies, viz., horses, neat cattle, sheep, and pigs ; and therefore the full value of a dog, killed through negligence, was held to be recoverable, though there was no declaration; Harrison \. L. c(; B. li. Co., 2 B. c^- S. 122, reversed in error. Id. 152, but on another point. If animals within the said proviso are injured during the course of their being received, and before the declaration has been made, only the limited damages are recoverable ; Iloihjnian v. W, Mid. II. Co., 5 B. & S. 173, r, Id. 500 (as to the remarks of Cockburn, C.J., at the end of liis judgment in this case, see JIartw. Baxendale I^xch. 7(»'.)). Tlie declaration of value, even though not part of tlie contract of carriage, will form the basis on COGGS V. BEILXAIMJ. 2] 3 whicli (lania,cj('swill be assessed ; MH 'a)icc v. L. ((• X.W. li.Co., Railway 7 H. & N. 477; but to entitle the company to reh' on it, it T;laffic'act. must be formally made, and therefore in UohiuHon v. L. <£• S. W. II. Co., 19 C. J3. N. S. 51, the company was held liable for refusing to carry, uninsured, a horse, whose value they had casually learnt to be above 50/. "Injury" Injury. includes, in the case of animals, injury caused by want of food or water through negligence in delivery ; Allday v. G. W. 11. Co., 34 L. J. Q. B. 5. " Articles " include Passengers' passengers' luggage carried without extra charge ; Cohen v. ^^°^"^' S. E. R. Co., 2 Ex. D. 253 ; but the luggage must be received for the purposes of carriage ; l^cui Toll v. S. E. R. Co., 12 C. B. N. S. 75, where it was merely deposited in a clonk-room at the end of the passenger's journey. It is now settled that the eft'ect of s. 7 is that, in order to Contract must exempt a railway company from liability for loss or injury of and*si^ni"a goods through their servants' negligence or default, there must be a special contract, both signed and reasonable ; Peek V. iV. Staffordshire R. Co., E. B. & E. 98G, 10 H. L. C. 478; Doolan v. Mid. R. Co., 2 App. Cas. 792, 805; M. S. d- L. R. Co. V. Broicu, 8 Id. 703, 710 ; Dickson v. G. N.R. Co., 18 Q. B. D. 176, !185. It was for some time uncertain whether, on the one hand, a special contract, which had been signed, was valid under the section, although not just and reasonable, and whether, on the other, a notice or condition, which was just and reasonable, was valid, although not signed. In Wise v. G. W. R. Co., 1 H. & N. 63, a special contract which was signed was held to be valid without reference to the question of its reasonableness ; see also Partington v. S. Wales R. Co., Id. 392, j)er Martin and Bramwell, BB. ; and Real v. S. Devon R. Co., 5 Id. 875, 3 H. & C. 337. But in Simons v. G. W. R. Co., 18 C. B. 805, a contract was held to be void on the ground of unreasonableness, although it was signed ; and in McManus V. L. cC Y. R. Co., 2 H. & N. 693, a signed contract was considered to be reasonable, and therefore binding. In Peek V. N. Staffordshire R. Co., E. B. & E. 958, a condition which was held to be reasonable was, nevertheless, held to be void because it was unsigned (Erie, J., diss.). The two last-mentioned cases were taken up to the Exch. Cham., and in McManus v. L. (f- Y. R. Co., 4 H. l^ N. 327, the McManusv.^ court of error, reversing the judgment below held (Erie, J., ' ' '' '^' diss.), that the special contract which the i^laintifl' had signed was void because it was unreasonable. " In eft'ect," 214 COG'^S V. BERNARD. Railway ANt) Caxal Traffic Act. Peek V. N. Stafordshirc R. Co. said Williams, J., in delivering the judgment of the majority of the court of error, " before the statute, every case in which a special limited liability was substituted for the general common law obligation of the carrier, whether b}'" notice acquiesced in, or document signed by the customer, was one of special contract, and the statute is to be con- strued with reference to that state of the law." According to this view the words " special contract " and " conditions," as used in the Act, are synonymous terms ; consequently, when Peek v. N. Staffordshire R. Co., E. B. & E. 986, subsequently came before the Exch. Cham., it was considered to be a settled point, that the Act does require that conditions should be signed. That was an action against the company as common carriers, for negligently carrying three marble chimney-pieces. 4tli plea : Special contract exempting them from responsibility for injury to marbles unless insured, and no insurance of the marbles. 5th plea : Condition to the same effect, alleging it to be reasonable. Issues thereon : verdict for defendants on both, pleas. The plaintiff had had notice of such condition, and in a letter to the defendants had requested them "to forward the three cases of marble not insured," which they did. On a special case in the Exch. Cham, it was held, reversing the decision of the Q. B., that the defendants were entitled to have the verdict entered for them upon the 4th plea, on the ground that the plaintiff's letter, coupled with the forward- ing of the goods in pursuance of it, and some other corre- spondence, constituted a special contract signed within the meaning of the 4th proviso to s. 7. This decision was in its turn reversed by the H. L., 10 H. L. C. 473, 32 L. J. Q. B. 241, on the ground that the condition was not just and reasonable, and that there was no special contract signed, their lordships being, however, divided as to whether the condition being reasonable must also be embodied in a signed contract. Lords Westbury and Wensleydale adopted the interpretation of Jervis, C.J., in Simons v. G, W. li. Co., and of A\'illiams, J., in MeManus v. L. d- Y. R, Co., and held that it must : that, in fact, " condition," and "special contract," in the section are synonymous; while Lords Cranworth and Chelmsford lield tliat they were two- different things, and that a condition being reasonable need not be signed. Some of tlie many observations of Lord Westbury may be cited here. "I think," lie said, "the true construction of s. 7 of COGCiS V. BERNARD. 215 the Act may be expressed iu a few words. I take it to Kailway . . , ■, 1 AND Canal be equivalent to a simple enactment, that no general traffic Act. notice given by a railway company shall be valid in law, Peek v. K for the purpose of limiting the common law liability of '"'^'''ff^rdshirc the company as carriers. Such common law liability may p^^ j^^^^i be limited by such conditions as the court or judge shall Westbuiy. determine to be just and reasonable ; but with this proviso, that any such condition so limiting the liability of the company, shall be embodied in a special contract in writing between the company and the owner, or person delivering the goods to the company, and which contract in writing shall be signed b}' such owner or person. . . . The words," of the Act " expressly state that any condition, having for its object to relieve a company from liability occasioned by the neglect or default of such company, shall be null and void. Now, if the present condition were embodied in a contract between the compaii}^ and the owner of the goods delivered to be carried by that company, the necessary effect of such a contract would be, that it would exempt the com- pany from responsibility for injury, however caused ; including, therefore, gross negligence, and even fraud or dishonesty on the part of the servants of the company. For the condition is expressed without any limitation or excep- tion." Therefore, his lordship considered the condition unreasonable, and he held that it was not embodied in a special contract in writing, because the words "not insured" did not refer " to the written condition, or afford any ground upon which the written condition can be regarded as in- corporated " in the contract. The letter, said Lord Cran- worth, " shows that the person sending the goods, chose to send them with the incidents attaching by law to the sending of the marbles uninsured ; but it does not show that he agreed to a stipulation by the company that they were to be absolved from responsibility by reason of their being so sent ; still less, that he so agreed by reason of their not being insured according to their value." The construction placed by Lord Westbury upon the section has been accejited as the correct one in later cases in the H. L. ; see Doolan V. Mid. E. Co., 2 App. Cas. 792, 805 ; M. S. d- L. R. Co. V. Brown, 8 Id. 703, 710 ; and G. W. R. Co. v. McCarthy, 12 Id. 218, 232. The condition held in McManus v. L. d Y. R. Co. to be What arp unreasonable, was that " the company would not be respon- i"p^'"'"«^'g ■^ " . '- conditions. sible for any injury, howsoever caused, to live stock of any 216 COGGS V. BERNARD. Railway description ; " the court, thinking that this condition, if held Tkaffic^ct. to be valid, would protect the company from liability in respect of their own gross negligence or misconduct ; see Gregory v. W. Mid. R. Co., 2 H. & C. 944 ; Booth v. N. E. R. Co.] L. E. 2 Ex. 173 ; Ashcndony. L. B. d- S. C. R. Co., 5 Ex. D. 190. Similarly, in AUday v. G. W. R. Co., 5 B. & S. 903, a condition against liability for delay, lioiuever caused, was adjudged unreasonable. In Bcal v. S. Devon B. Co., 3 H. & C. 337, the condition provided, in the case oifish, that the company "should not be responsible under any cir- cumstances for loss of market, or for other loss or injury from any cause whatever, other than gross negligence or fraud,'' and this condition was held (Martin, B., diss.) to be valid; see Lord v. Mid. B. Co., L. R. 2 C. P. 339. In Simons v. G. W. B. Co., 18 C. B. 805, a condition was held to be unreasonable which absolved the company from responsibility for loss or detention of goods by reason of in- sufficient or improper package ; and so in Cutler v. N. London B. Co., 19 Q. B. D. 64, was a condition absolving them from all responsibility for passengers' luggage unless it bore the owner's name and address. In Harrison v. L. B. dc S. C. B. Co., 2 B. & S. 122, the court upheld a condition against liability for loss or damage to horses or dogs above certain values, unless the value was declared and extra charges paid according to the value, the company to be liable only for the declared value. But this case was treated in Ashendon v. L. B. d- S. C. B. Co., 5 Ex. D. 190, as overruled by Peek V. N. Staff'. B. Co., supra; see also Bohinson v. G. W. B. Co., 35 L. J. C. P. 123. Conditions protecting the company against claims for loss unless made within seven days from the time when the goods ought to have been delivered, and against liability for the loss of goods untruly declared by the sender, were held binding in Lewis v. G. W. B. Co., 5 H. & N. 8G7. In Aid ridge v. G. W. B. Co., 15 C. B. N. S. 582, a condition against liability for injury beyond the limits of the company's railway, was held reasonable. It seems to have been assumed tliat the Act n]>plics to such a condition; but it has since Itccii decided that it does not ai)ply to contracts which exempt companies from liability for loss or detention l)ey<)nd tlu; limits ')f their own lines ; Zunz v. ,S'. K. B. Co., L. li. 4 Q. B. 539. As to um-easonableness of part of the conti-act avoiding only that ])art, see M'Cance V. L. d N. ir. JL Co., 7 II. \- N. 477, and per Kelly, C.B., j;n<,ih V. N. K. R. Co., L. IL 2 Ex. 173, 178. COGGS V. BEllNAKD. 217 In Simons v. G. W. li. Co., supra, a condition was held to Kailway be valid because confined to goods carried at the lower of two Traffic Act. alternative rates. And conditions, so confined, were upheld, Alternative on the ground that there was a reasonable alternative rate, in ''^*^^- Leivis V. G. W. R. Co., 3 Q. B. D. 195 ; M. S. d L. E. Co. v. Browji, 8 App. Cas. 703 ; G. W. II. Co. v. McCarthy, 12 Id. 218; see also Foreman v. G. W. B. Co., 38 L. T. 851 ; Sheridan v. M. G. IF. 11. Co., 24 L. R. Ir. 140 ; Nerin v. G. S. dc W. R. Co., 30 Id. 125. In Dickson \. G. X. R. Co., 18 Q. B. J). 176, where a Dickson v. valuable dog had been injured through the negligence of the ^' ' ^''■ company's servants, a condition disclaiming liability for loss or damage to dogs beyond 21., unless a higher value was declared and 5 j)er cent, paid upon the excess of value beyond 2/., was held by the C. A. to be unreasonable. Lord Esher, and Lopes, L.J., considering that the higher or insurance rate was so excessive as practically to offer no alternative, and that in the absence of an alternative rate the condition was unreasonable. The court pointed out that the burden of showing that the contract was reasonable was thrown b}' the Act upon the defendants, and agreed in considering the extra charge unreasonabl}' high. In a very instructive judgment. Lopes, L.J., traced the history of the carrier's liability prior to the Traffic Act, and explained the *circumstances which led to its enactment, pointing out that before that Act i-ailway companies were common carriers only of such goods as they professed to carry for persons generally, or were bound to carry as such. He then proceeded : " Two important matters are aimed at and hit by the Eailway and Canal Traffic Act, 1854. It j^ro- vides that railway companies shall afford all reasonable facilities for receiving, forwarding, and delivering traffic without delay and without partiality ( ' traffic,' by the inter- pretation clause, including animals), and gives a remedy, if facilities are withheld, on application to the Court of Common Pleas, a jurisdiction now transferred to the Bail- way Commissioners. Since the passing of that Act, railway companies cannot, in my oi)inion, absolutely refuse to carry traffic which they have facilities for carrying, even if they did not profess to carry and did not generally carry such traffic, but would be compellable to carry it, not as common carriers, but with the liability of ordinary bailees, and subject to reasonable conditions limiting that liability. Applying that principle to the present case, I am of opinion 218 COGGS V. BERNARD. Railway AND Canal Tkaffic Act. Dickson v. G. N. R. Co, Meaning of owner's risk. Wilful misconduct. Detention. Sifjned contract. Carriers by water. LoHH by fire. Loss of gold, &c. that the defendants were not common carriers of dogs, and were not bound to carry them at their own risk, but could not refuse to carry tliem on reasonable terms and subject to reasonable conditions." The question whether the condition or contract is reason- able must be determined by the court or judge, and not by the jury, though the jury may be asked to find as to facts material to that question ; see Dickson v. G. N. B. Co., 18 Q. B. D. 181 ; G. W. R. Co. v. McCarthy, 12 App. Cas. 229, 233 ; Sheridan v. M. G. W. R. Co., 24 L. R. Jr. 146. For the meaning of the expression " owner's risk " in such conditions, see D'Arc v. L. d N. W. R. Co., L. R. 9 C. P. 325 ; Mitchell v. L. d- Y. R. Co., L. R. 10 Q. B. 256. And as to what amounts to wilful misconduct, where the con- dition protects the company from liability for loss or damage except so caused, Wehhx.^G. W. R. Co., 26 ^^\ R. Ill; Leivis V. G. W. R. Co., 3 Q. B. D. 195 ; Hoare v. G. W. R. Co., 25 W. R. 631 ; Nerin v. G. S. d W. R. Co., 30 L. R. Ir. 125 ; Stevens v. G. W. R. Co., 52 L. T. 324. As to what is detention on a condition protecting against it, see Gordon V. G. W. R. Co., 8 Q. B. D. 44. The signature to the special contract may be made by an agent of the party sending the goods ; see Peek v. A^ Staff". R. Co., E. B. & E. 986. But the provision that the special contract must be signed applies only where the company is seeking to exempt itself from liability ; and where the customer is setting up the contract, it is no answer to say that he has not signed it; Baxoidale v. G. E. R. Co., L. R. 4 Q. B. 244. With respect to carriers by water, besides the exemptions for which the}' stipulate in their charter-parties and bills of lading, the latter always containing a clause discharging them from liability for loss occasioned by " the act of God, the King's enemies (from which they are indeed discliarged at common law), fire, and all or every other dangers and accidents of the seas, rivers, and navigation, of what nature and kind soever," they were further protected by 26 Geo. 3, c. 86, IVom liability for loss or damage by reason of fire on board the ship (see Morcwood v. Polloek, 1 E. il-. B. 743; Schmidt v. 7i'. ]\[ail Co., 45 L.J. Q. B. 646), and also fi'om liability lor loss or damage to any gold, silver, diamonds, watches, jewels, or ])reci()us stones, sustained, with- out their own actunl fault or privity, by any robbery, embezzle- ment, making away with or secreting thereof, unless the owner COGGS V. BERNARD. 219 or shipper liad, at the time of shipment, dechired in writing Cakkikrs by the true nature and value thereof. See now the Merchant Shipping Act, 1894, s. 502, which is to the same effect. The declaration must state the value in money ; Williams y. African Co., 1 H. & N. 300 ; see Gihhs v. Potter, 10 M. & W. 70. The 6 Geo. 4, c. 125, exempted them from liahility for damage arising from want of a licensed pilot, miless incurred hy their own refusal or neglect to take one on boai-d ; and from liability for loss incurred through the default of a licensed pilot. Now, by the Merchant Shipi)ing Act, 181)4, Compulsory s. t>33, " an owner or master of a ship shall not be answer- P'^o^age. able to any per;3on whatever for an_y loss or damage ^ 60*^8 633" occasioned by the fault or incapacity of any qualified pilot acting in charge of that ship wdthin any district where the emplo3'ment of a qualified pilot is compulsory by law." But although the pilot was in fault, this section does not free the owner from liability, if there was any default on the part of the master or crew which conduced to the loss or damage ; e.g., neglect to keep a proper look-out ; The luna, L. E. 1 P. C. 426 ; Clyde Nav. Co. v. Barclay, 1 App. Cas. 790 ; The Indns, 12 P. D. 46 ; The Schwaii, (1892) P. 419, 438. Where their common Lnv liability remained, its extent Limitatiun was from time to time narrowed by the following Acts, viz., "^^ 'i^'i^^ili'"}'. 7 Geo. 2, c. 15, which exempted them from making good losses incurred by misconduct of the master and mariners, without their privity, to a greater extent than the value of the ship and freight : 26 Geo. 3, c. 86, which extended the above enactment to all cases of loss by robbery, without their privity, by whomsoever committed : and 53 Geo. 3, c. 159, which extended it to all cases of loss or damage occasioned without their fault or privity ; but this Act did not extend to vessels used solely in rivers or inland navi- gations, nor to any ship not duly registered according to law ; nor did any of those Acts extend to lighters and gabberts ; Hiuitcr v. M'Goicu, 1 Bligh, 573. It should also be observed that the benefit of these three Acts ex- tended only to owners, not to masters, and that the last contained an express clause against relieving a master who was also a part owner; see Wilso)i v. Dickson, 2 B. it Aid. 2 ; Atkinson v. Stevens, 7 Exch. 567. The Act now in 56 & 57 vict. force upon this subject is the Merchant Shipping Act, 1894, ^'^ po- part 8, ss. 503 to 509. A condition in a bill of lading that the shipowner shall not Conditions iu be accountable for leakao-e or breakage has been held not to ^'ill« of lading. 220 COGGS V. BERNARD. Carriers by "Water. Implied waviaiity of seawoi'thiuess. Liability of juivate car- riers at sea. l.ialjjlity of carriers by land and water. Railways Regulation Act, 18GS, 31 ti. -62 Vict, c. 119. S. 11. discharge him from liability for gross negligence ; PhiUiys v. Clark, 2 C. B, N. S. 156 ; nor for damage to adjacent goods caused by the leakage ; Thripp v. Youle, 2 C. P. D. 432 ; see also Wilton v. Atlantic li. Mail Co., 10 C. B. N. S. 453; 31 & 32 Vict. c. 119, s. 14, p>ost; Lloyd v. Gen. Iron Screw Colliery, 33 L. J. Ex. 269 ; Czech v. Gen. St. Nav. Co., L. E. 3 C. P. 15 ; Leuiv v. Dudgeon, Id. 17 n. ; Grill V. Gen. Iron Screw Colliery, 1 Id. 600, 3 Id. 476 ; Chartered Bank of India v. Netherlands Co., 10 Q. B. D. 521 ; but such a condition has the effect of shifting the onus of proof, and makes it incumbent upon the consignor to give affirmative evidence of negligence ; Czech v. Gen. St. Nav. Co.,su2}ra; see The Glendarroch, (1894) P. 226. In The Duero, L. R. 2 A. & E. 393, a condition in a bill of lading excluding liability for negligence or default of master or mariner or others performing their duties "was upheld ; see Norman v. Binnington, 25 Q. B. D. 475. Irrespective of tlie common law liability of common car- riers, there is in eve]"y contract of affreightment, where the agreement does not exclude it, a warranty that the ship is seaworthy; Kopitoff v. Wilson, 1 Q. B. D. 377; Gilroy v. Price, (1893) A. C. 56 ; Thin v. Richards, (1892) 2 Q. B. 141 ; Hedlcy v. Pinkney's Co., (1894) A. C. 222. Whether such warranty extends to latent defects, qnare ; that it does not in contracts by land has been decided in Readhead v. Mid. R. Co., L. R. 4 Q. B. 381, though it does extend to every- thing except latent defects; Francis v. Cockerell, 5 Id. 501. For the distinction between the common law liability of common carriers by water, and those who are not common carriers, see Nugent v. Sniitli, 1 C. P. D. 423. In that case, Cockburn, C.J., in an historical review of the authorities, questioned the position taken by Brett, J., in the court below, that no such distinction exists. The liability of carriers by land and water is further modified by the Railways Regulation Act, 1868, s. 14, wliicli enacts that " wlusre a comjiany, by through booking, con- tracts to carry any animals, luggage, or goods from })lace to place — partly by railway and partly by sea — or paitly by canal and partly by sea : a condition exempting the com- pany from liability for any loss or damage which may arise during the carriage of sucli animals, luggage, or goods by sea, from the act of (iod, the King's enemies, fire, accidents from machinery, l)()ilers and steam, and all and every other dangers and accidents of the seas, rivers, and navigation, COGGS V. BERNARD. 221 of whatever nature and kind soever, shall, if puhlished in a Carriehs' ,1 /v. 1 , ,, 111 LlAlilLITIES. conspicuous manner m the oince where such through hook- ing is effected, and if printed in a legihle manner on the receipt or freight note which the company gives for such animals, luggage, or goods, be valid as part of the contract between the consignor of such animals, luggage, or goods, and the company, in the same manner as if the company had signed and delivered to the consignor a bill of lading containing such condition. For the [)urposes of this sec- tion the word ' company ' includes the owners, lessees, or managers of any canal or other inland navigation." S. 16 incorporates the Eailway and Canal Traffic Act, so S. 16. that conditions afiecting such traffic, to be binding, must be reasonable and signed ; see Cohen v. ,S'. E. R. Co., 2 Ex. D. 253, where it was so held, following Moore v. Mid. It. Co., Ir. R. 9 C. L. 20, and not Doolan v. Mid. B. Co., 10 Id. 37, which overruled the former case (Whiteside, C.J., diss.), but was subsequently reversed, 2 App. Cas. 792, The Piaihvays Regulation Act, 1871, s. 12, provides that where Railways a railway company, under a contract for carrying persons, Act^i's^n" animals, or goods by sea, procures the same to be carried in 34 & 35 Vict. a vessel not belonging to the railway company, their liability ^' > ^- " ■ is to be the same as though the vessel belonged to the com- pany ; see Moore v. Mid. R. Co., supra. Whei'e goods consigned to a vendee are lost through the AVhether con- default of the carrier, the consignee is the in'o))er person to ^^o^°}' °^' ' . ° . consignee sue, for the consignor was his agent to retain the carrier ; should sue. Dawes v. Peck, 8 T. R. 330; Dattoit v. Solonwnsoii, 3 B. & P. 582 ; King v. Meredith, 2 Camp. 639 ; Brown v. Hodgson, Id. 36 ; L. d- N. W. B. Co. v. Bartlett, 7 H. & N. 400. It is otherwise where the goods were sent merely for approval ; Swain v. Sliejyherd, 1 M. & Rob. 224 ; or the con- signee is the agent of the consignor; Sargent v. Morris, 3 B. & Aid. 277 ; or the carrier has contracted to be liable to the consignor in consideration of the latter's becoming resj)on- sibleforthe price of the carriage; Moore v. ]]llson, 1 T. R. 659 ; Davis v. James, 5 Burr. 2680 ; or where the property in the goods has not yet passed to the vendee, as, for in- stance, when there is no evidence of a contract sufficient to satisfy the Statute of Frauds, and the carrier is not of the vendee's selection; Coats v. Chaplin, 3 Q. B. 483 ; Norman V. Phillips, 14 M. & W. 277 ; Coombs v. Bristol dc E. B. Co., 3 H. & N. 510 ; or, to speak generally, where the carrier is employed by the consignor, and the goods are at COGGS V. BERNARD. Cakrieks' LlAEILITIE.'?. liis risk ; Bunlop v. Lambert, 6 CI. & F. 600 ; see Freeman V. Birch, 3 Q. B. 492, n. ; Cork Distilleries Co. v. G. S. d- JV. E. Co., L. R. 7 H. L. 277-8 ; and see G. W. R. Co. v. Bapfie, 15 Q. B. D. 625, where the consignor had agreed with the consignee to pay the carriage. It has been hekl here, contrary to the view taken in America, that there is no analogy between a person to whom a telegram is sent and a consignee of goods so as to make the former the proper person to sue the telegraph company ; Playford v. U. K. Telegraph Co., L. R. 4 Q. B. 706. And an action will not lie at the suit of the consignee against the telegraph company for delivering a telegram purporting to come from a person who has not in fact sent one in such terms ; for there is no consideration moving from the consignee to tlie company from which a contract on their part that they have authority to deliver the tele- gram in question may be inferred ; Dickson v. Renter's Co., 3 C. P. D. 1 ; and for the like reason they are not liable as for a breach of duty. In the case of an action brought against a carrier, it is sufficient pj-imd facie evidence of a loss by his negligence to show that the goods never reached the consignee, or a short delivery; Haivkes v. SmitJi, Car. & M. 72, Rolfe, B. But where they are bailed to a booking-office keeper to be de- livered to a carrier, the plaintiff must show b}' direct evi- dence, that they were not delivered to one ; Gilbart v. Dale, 5 A. & E. 543 ; Griffiths v. Lee, 1 C. & P. 110 ; Mid. R. Co. V. Bromley, 17 C. B. 372. With regard to the mode of pleading in an action against a carrier, formerly the jiractice was to set out the custom of the realm. That was discontinued because, the custom of the realm being the law of the realm, tbe courts take notice of it. Afterwards the practice became to state the defen- dnnts to be common carriers for hire, totidem verbis. If the defendant pleaded an acceptance of the goods on the special terms of a carrier's notice, the plaintiff, if he meant to rely uj)on (irosH nef/lifiencc ;is rendering the defendant liable not- withstanding the notice, must have replied or new assigned sucli negligence ; U\>/hl v. PIrkford, 8 M. & W. 443; Butt V. (I. \\\ 11. Co., 11 C. B. 140. Since tbe Judicature Act if h:is been usual simjdy to state the delivery to the carrier SIS a carrier for liire nnd tbe loss or sbort delivery (see Allen's Forms, 131 ef seq.). If goods liave been carried under a special contract, the COGGS V. BERNARD. 223 declaration ought in general to be upon sucli contract, and Cahriehs' should not allege a receipt by the defendants as common carriers; see White v. G. W. L\ Co., 2 C. B. N. S. 7, and Phillips V. Edwards, 4 H. & N. 813. In Simons v. G. W. B. Co., 2 C. B. N. S. 620, the defendants were held liable as common carriers, their servants having taken advantage of the plaintiff and induced him by a misrepresentation to sign a special contract. There have been cases in which the question was whether wiicthcr tort an action against a carrier was " an action founded on con- or contract. tract " or " an action founded on tort," within the meaning of enactments in respect of costs in actions which could have been brought in a county court ; see now the County Courts Act, 1888, s. 116. An action against a carrier for the loss through his negligence of goods delivered to him for carriage is " founded on contract ; " Baijliss v. Lintott, L. R. 8 C. P. 345 ; and that is so, even in the case of a " common carrier : " Flcinin;/ v. M. S. <£• L. R. Co., 4 Q. B. D. 81. It was held in Taftan v. G. W. E. Co., 2 E. & E. 844, that an action against a common carrier based upon the custom of the realm was not an " action of contract " within the 19 & 20 Vict. c. 108, s. 30, now repealed ; but it seems that that decision is not an authority upon the present enactment ; see Fleming v. M. S. d L. E. Co., siijyra. An action against a carrier for wrongfully refusing to re-deliver goods to an unpaid vendor who has stopped them in transitu is " founded on tort," because the stoppage determines the contract of carriage; Pontifox v. Mid. R. Co., 3 Q. B. D. 23. So is an action by a passenger against a railway company for personal injuries caused by their servant's negligence ; Taijlor V. M. S. cC' L. R. Co., (1895) 1 Q. B. 134, as explained in kelhj v. Metr. R. Co., Id. 944. It is the duty of a carrier not only to carry safely, but Carrier's dutj' also, if no time be stipulated, to carry within a reasonable *° *^leUver. time ; Raphael v. Pickford, 5 M. & Gr. 551 ; G. N. R. Co. V. Taylor, L. R. 1 C. P. 385. He is not liable for mis-de- livery, if in making such delivery he has followed the usual course of business ; McKeaii v. Melror, L. R. 6 Ex. 36. Questions have arisen as to the time during which the whcu his lia- liability of the carrier continues, and there is sometimes ^^^^^Y ceases, considerable difficulty in determining the point at which he ceases to hold the goods in his capacity of carrier, though retaining control or possession of them. It is for the jury (when there is no written contract) to determine '2U COGGS V. BERNARD. Carriers' Liabilities. Liability of carriers for loss or injury beyond their own line. Dutifs at end of transit. the extent of the agreed transit ; as, for instance, in the case of goods carried across a ferry, it is for the jury to determine, from evidence of the practice at the ferry, whether the owners of the ferry have undertaken to carry goods up a slip, or only to land them on the shore ; see Walker v. Jackson, 10 M. & W. 161. For what constitutes a delivery of cattle, see Booth v. N. E. B. Co., L. R. 2 Ex. 173 ; Shepherd v. Bristol d- E. B. Co., 3 Id. 189. Where goods are delivered at the office of a railway company to be carried from one terminus to another, it may be inferred by the jury that this company is answerable for the whole transit, though in part on the line of another company ; Muschamp V. L. d P. J. B. Co., 8 M. & W. 421 ; Bristol d E. B. Co. V. Collins, 7 H. L. C. 149 ; Mijtton v. Mid. B. Co., 4 H. & N. 615 ; and as to passengers, see Blake v. G. W. B. Co., 7 H. & N. 987 ; Buxton v. N. E. B. Co., L. R. 3 Q. B. 549 ; Thomas v. Bhymney B. Co., 6 Id. 266 ; Hall v. N. E. B. Co., 10 Id. 437; John v. Bacon, L. R. 5 C. P. 437; and compare Wri'">' Crompton, J. ; and see Mors le Blanch v. Wilson, L. R. 8 C. P. 227. VI. Mandatiun. — The sixth and last class of bail- VI. Man- ments is (according to Lord Holt ) mandatam, or a delivery of goods to somebody who is to carry them, or to do something about them, (jratis. And tliis might have been classed under the same head with depositnm. For as the keeping, carrying, and working ujMn goods for hire are all included, both by Lord Holt and Sir W. Joneg, under the same head, there seems no good reason why tlie keeping, carrying, and working iijwn them gratui- tously should not have been so likewise. Certain it is that the liabilities of the depositary and of the mandatary are precisely the same ; both (in the absence, at least, of a contract in special terms) are bound to sligJit diligence, and Mandatary to slight diligence only, and liable for nothing short of gross giic^iit dili- negligence, the reason in each case being the same, namely, gence only, that neither is to receive any reward for his services. Accordingly, whenever the extent of a mandatary's liability is discussed we find the cases respecting that of depositaries cited, and relied upon, and so vice versa. The cases of Beauchamp v. Powley, 1 M. »i' Rob. 38, Shiells v. Black- hurne, 1 H. Bl. 158, and DartnaU v. Howard, 4 B. & C. 345, the facts of which are respectively stated at the com- mencement of this note, were decisions on the responsibility' of mandataries, and from those, as well as from the general principle, it appears that such bailees are liable for gross negligence, and for that only. See also Mofatt v. Bateman, L. R. 3 P. C. 115. A gratuitous agent is, however, bound to use such skill Giatuitous , ^ p . I'll agent bound as he possesses ; lor mstance, a person who rides a liorse to use such gratuitously at the owner's request for the purpose of show- ^^^}J^^fJ^^^ ing him for sale, if proved to be a person skilled in the management of horses, is held equally liable with a borrower for injury sustained by the horse whilst ridden by him ; Wilson V. Brett, 11 M. & W. 113. And this, as before 15 2 possesses. 228 COGGS V. BERNARD. Higher division of bailees into three classes. 1. For benefit of bailor only. 2. For benefit of bailee only. 3. For benefit of both. Bailee when liable in con- version. Duty of lender to dis- close defects. pointed out, is not a real exception to the rule that gratui- tous bailees are liable for gross negligence only, since, in the case of a skilled person, that may well be considered gross negligence, which, in an ordinary unskilled person, would be only a slight want of care. As to what amounts to such an undertaking of a gratui- tous office or employment as will impose a liability to fulfil its duties, see Elsec v. Gaticard, 5 T. E. 143 ; Balfe v. West, 13 C. B. 466 ; Fish v. Kelly, 17 C. B. N. S. 194. From the above cursory view of the law of bailments, it will be seen that, besides the six classes enumerated by Lord Holt, bailees may be distributed into three general classes, varying from one another in their degrees of respon- sibility. The first of these is, where the bailment is for the benefit of the bailor alone : this includes the cases of man- dates and deposits, and in this the bailee is liable only for gross negligence. The seeond is, where the bailment is for the benefit of the bailee alone : this comprises loans, and in this class the bailee is bound to the very strictest diligence. The tliird is, where the bailment is for the benefit both of bailor and bailee ; this includes locatio rei, vadium, and locatio operis, and in this class an ordinary and average degree of diligence is sufficient to exempt the bailee from responsibility. A bailee dealing negligently with goods intrusted to him does not thereby necessarily lose his character of bailee so as to be liable as for a conversion ; see Hcald v. Carey, 11 C. B. 977. Contra, if he commits an active wrong which determines the bailment, Clark v. Gilbert, 2 B. N. C. 356; Cooper \. IVillomatt, 1 C. B. 672. See Austin v. Manchester R. Co., 10 C. B. 454; Fenn v. Bittleston, 7 Exch. 152; Chinery v. Viall, 5 H. i^- X. 288 ; Johnston v. Stear, 15 C. B. N. S. 330 ; Midliner v. Florence, 3 Q. B. D. 484. Replevin will not lie at the suit of the bailor against a person to whom the bailee has delivered the goods ; Mennie v. Blake, 6 E. & B. 842. In Blakemore v. Bristol d- Exeter R. Co., 8 E. k B. 1035, Coleridge, J., delivering the judgment of the court, made some valuable remarks on the duty of the gratuitous lender of a chattel to disclose defects in it of which he is aware. " It is surprising," said the learned judge, " how little in the way of decision in our courts is to be found in our books upon the obligations which the mere lender of a (•h;itt('l for use contracts towards the borrower. Pothier, COGGS V. BERNARD. 229 in his Traite dii Pret a Usage, to be found in the 4th vol. of his works b}^ Dupin, pt. 3, pp. 37 to 42, enters into the subject at some length ; and Story also treats of it, Bail- ment, s. 275. The principles which these two writers draw mainly from the Roman law, may be the more safely relied on as engrafted into the common law, considering that the whole of this branch of our law is so mainly built on the Roman, as the judgment in Coggs v. Bernard demonstrates. It may, however, we think, be safely laid down that the duties of the borrower and lender are in some degree correlative. The lender must be taken to lend for the purpose of a beneficial use by the borrower ; the borrower, therefore, is not responsible for reasonable wear and tear ; but he is for negligence, for misuse, for gross want of skill in the use ; above all, for anything which may be qualified as legal fraud. So, on the other hand, as the lender lends for beneficial use, he must be responsible for defects in the chattel, with reference to the use for which he knows the loan is accepted, of which he is aware, and owing to which directly the borrower is injured. Adjuvaj'i quippe nos, non decipi, heneficio oportct, is the maxim which Story borrows from the Digest ; and Pothier is express to the same effect, citing, as Story does also, the instance. Qui sciens rasa vitiosa commodavit , si ibi i)ifiisum vinum, vel oleum, corruptum, effusumve est, condemaandus eo nomine est. This is so consonant to reason and justice, that it cannot but be part of our law. Would it not be monstrous to hold that, if the owner of a horse, knowing it to be vicious and unmanageable, should lend it to one who is ignorant of its bad qualities, and conceal them from him, and the rider, using ordinary care and skill, is thrown from it and injured, he should not be responsible ? The principle laid down in Coggs V. Bernard, and followed out b}' Lord Kenyon and Buller, J., and by Lord Tenterden, in the nisi j>r/«s cases cited in the note, 1 Sm. L. C. 162 (4th ed.), that a gratuitous agent or bailee may be responsible for gross negligence or great want of skill, gets rid of the objection that might be urged from want of consideration to the lender. By the necessarily implied purpose of the loan, a duty is contracted towards the borrower not to conceal from him those defects known to the lender which may make the loan perilous or unprofitable to him." See also McCarthy v. Young, 6 H. & N. 329. As to the analogous duty upon the sender Analogous of goods by a carrier to communicate their dangerous co^usimor 230 COGGS V. BERNARD. and letter. Bailee when criminally liable. 24 k 25 Vict. c. 96, s. 3. Bailee's right to damages for injury to the goods. nature, see Farrant v. Barnes, 31 L. J. C. P. 137 ; and as to the dut}^ of the letter in contracts of hiring to supply a thing reasonably fit for the purpose for which it is intended, see Sutton v. Temple, 12 M. & W. 60 ; Fowler v. Lock, L. R. 7 C. P. 272, 10 Id. 90; Stcmton v. Richardson, 9 Id. 390 ; and compare Beadhead v. Mid. B. Co., L. R. 4 Q. B. 379 ; Francis v. Cockerell, 5 Id. 184, 501 ; Hyman v. Nye, 6 Q. B. D. 685 ; Bohertson v. Amazon Co., 7 Id. 598. See also notes to Chandelor v. Lopus, post, vol. ii. By the Larceny Act, 1861, s. 3, any person who, being a bailee of any property, fraudulently takes or converts it to his own use or the use of any person other than the owner, is to be deemed guilty of larceny, although he do not break bulk or otherwise determine the bailment. A person who has received mone}' from another, and is only bound to return the amount, not the identical coins, is not a bailee within this section ; B. v. HassaU, 30 L. J. M. C. 175. It was doubted (before the passing of the Married Women's Property Act, 1882, s. 1), whether ?i feme covert could be so ; jR. V. Bohson, 31 L. J. M. C. 22 ; but it is now decided that an infant may be ; B. v. Macdonald, 15 Q. B. D. 323 ; see further as to who is a bailee within the section, B. v. Bunkall, 33 L. J. M. C. 75 ; B. v. Ashwell, 16 Q. B. D. 190. It has been held that a bailee of goods cannot recover as damages against a third party who injures the goods the amount of such injury when the bailee is himself not liable therefor to the bailor ; ClaridgejW;^_^Sj.^^Staffh^^ ways Co., (1892) JM^^_B^^ 422. In America, the contrary was expressly decided in Woodman v. Nottingham, 49 New Hampshire R. 387 ; see Sedgwick's Leading Cases on the Measure of Damages, 685. ASHBY V. WHITE ET ALIOS. TRIXITY.—2 ANX.E. [rKPORTED, 2 LOUD KAYMOXD, 938 ; 3 ID. 320.] A man who has a right to vote at an election for members of Parliament may maintain an action against the returning officer for refasing to admit his vote, though his right was never determined in jiarliament, and though the persons for whom he offered to vote were elected («). Buckinghamshire, to wit. Matthias Ashby complains of William White, Richard Talbois, William Bell, and Eichard Heydon, being in the ocistody of the marshal of the ]\[arshalsea of the lord the king, before the king himself, for that, to wit, That whereas, on the 26th day of November, in the 12th j^ear of the reign of the lord the now king, a certain writ of the said lord the now king, issued out of the Court of Chancery of him the said lord the now king, at Westminster, in the county of Middlesex, directed to the then sherili" of Buckinghamshire aforesaid, reciting that the said lord the king, by the advice and assent of his council, for certain arduous and urgent businesses concerning him the said lord the king, the state, and the defence of his realm of England, and of the church of England, has ordained his certain parliament to be holden at his city of Westminster, on the 6th day of Februarj^ then next coming, and there with the prelates, nobles, and peers of his said kingdom, to have discourse and treaty, the said lord the now king commanded the then sheriff of Buckinghamshire, by the said writ firmly enjoining, that, having made proclama- tion in his next said county court after the receipt of the same (a) S. C, 1 Salk. 19 ; 3 Salk. 17 ; Holt. quod tlie plaintill incurred unnecessary 524 ; 6 Mod. 45 ; see 1 Bro. Pari. Cas. costs ; Mason v. Paijntcr, 1 Q. B. 974. 62 ; 8 St. Tr. 89. Somewhat similar to So, against an ofScer of customs, for this actio-n is that of Perring v. Harris, refasing to sign a bill of entry, without 2 Moo. k Rob. 5, against an overseer for payment of an excessive duty ; Barry v. maliciously omitting a parishioner's name Arnaiul, 10 A. & E. 646. As to an from the rate,;jer quod she was unable to action against a clergyman for refusing obtain a beer licence. So, against a to solcnmize a marriage, see Davis v. sheriff for delaying to execute a writ, 2)cr Black, 1 Q. B. 900. 232 ASHBY V. whitp: et alios. (Declaeation.) writ to be liolden, of the day and place aforesaid, two Imifrhts, girded with swords, the most fitting and discreet of the county aforesaid, and of every city of that county two citizens, and of every borough two burgesses of the more discreet and most sufficient, should be freely and indifferently chosen by those whom such proclamation should concern, according to the form of the statute thereupon made and provided, and the names of the said knights, citizens, and burgesses, so to be chosen, to be inserted in certain indentures thereof, to be made between him, the then sheriff, and those who should be concerned at such election (although such person to be chosen should be present or absent), and should cause them to come at the said day and place ; so that they the said knights, citizens, and burgesses, might severally have full and sufficient power for themselves and the commonalt}- of the county, cities, and boroughs afore- said, to do and consent to those things which should then happen to be ordained there of the common council of the said realm of him the said lord the now king (by God's assistance), upon the businesses aforesaid ; so that for want of such power, or because of an improvident election of the knights, citizens, and burgesses aforesaid, the said businesses ni'ght not in anywise remain un- done ; and should certify, without delay, that election made in the full county of him the then sheriff, distinctly and openly, under his seal, and the seals of those who should be concerned at that election, to the said lord the now king, in his Chancery, at the said day and place ; sending to him the said lord the king the counter part of the indenture aforesaid, sewed to the same writ, together with that writ ; which said writ, afterwards, and before the 6tli day of February in the writ aforesaid mentioned, to ivit, on the 29th day of December, in the twelfth year above- said, at the l)oro;;gh of Aylesbury, in the said county of Bucks, was delivered to one Robert Weedon, Esq., then sheriff of the same county of Bucks, to be executed in form of law ; by virtue of which said writ, the aforesaid Robert Weedon, being then and there sheriff of the county of Bucks aforesaid, as before is set forth, afterwards and l)eforo the aforesaid Gth day of February, to unt, on the BOtli day of December, in the 12th year abovesaid, at the Borough of Aylesbury aforesaid, in the ASHBY V. WHITE ET ALIOS. 233 said county of Bucks, made his certain precept in writing, under the seal of him the said Piobert Weedon, of his office of Slioriff of the County of Bucks aforesaid, directed to the constables of the borough of Aylesbury aforesaid, reciting the day and place of the parliament aforesaid to be holden, thereby requiring them and giving to them in command, that having made proclamation within the borough aforesaid of the day and place in the same precept recited, they should cause to be freely and indifferently chosen two burgesses of that borough, of the more discreet and most sufficient, by those whom such proclamation should con- cern, according to the form of the statutes in such cases made and provided, and the names of the said burgesses so elected (although they should be present or absent) to be inserted in certain indentures between the said sheriff and those who should have interest in such election ; and that they should cause them to come at the day and place in the same precept recited, so that the said burgesses might have full and sufficient power for them- selves and the commonalty of the borough aforesaid, to do and consent to those things which should then happen to be ordained there of the common council of the said realm (by God's assist- ance) upon the business aforesaid ; so that for want of such power, or because of an improvident election of the burgesses aforesaid, the said businesses might not remain undone ; and that they should, without delay, certify the election to him the said then sheriff, sending to the same sheriff the counterpart of the indenture aforesaid annexed to the said precept, that he the said sheriff might certify the same to the said lord the king in his Chancery at the day and place aforesaid ; which said precept afterwards and before the said 6tli day of February, to irit, on the same 30th day of December in the year abovesaid, at the borough of Aylesbury aforesaid, in the said county of Bucks, was delivered to them, the said "William White, Eichard Talbois, William Bell, and Richard Heydon, then, and until after the return of the same writ, being constables of the borough of Aylesbury aforesaid, to be executed in form of law ; to which said William White, Eichard Talbois, William Bell, and Eichard Heydon, by reason of their office of constables of the borough aforesaid, the execution of that precept of right did then and there belong ; by virtue of which said precept, and by force of 234 ASHBY V. WHITE ET ALIOS. (Declaeation.) the writ aforesaid, they the said burgesses of the borough of Aylesbmy, being in that behalf duly forewarned, afterwards and before the 6th day of February, to wit, on the 6th day of January m the 12th year abovesaid, at the borough of Aylesbury aforesaid, before them, the said William AVhite, Eichard Talbois, William Bell, and Eichard Hey don, the constables aforesaid, were as- sembled to elect two burgesses for the borough, according to the exigency of the writ and precept aforesaid, and during that assembly, to that intention, and before such two burgesses, by virtue of the writ and precept aforesaid, were elected, to nit, on the day and year last abovesaid, at the borough of Aylesbury aforesaid, in the county aforesaid, he, the said Matthias Ashby, then and there, being a burgess and an inhabitant of the borough aforesaid, and not receiving alms there or anywhere else, then or before, but being duly qualified and entitled to give his vote for the choosing of two burgesses for the borough aforesaid, ac- cording to the exigency of the writ and precept aforesaid, before them, the said William White, Eichard Talbois, William Bell, and Eichard Heydon, the four constables of that borough, to whom then and there it did duly belong to take and allow the vote of him, the said Matthias Ashby, of and in the premises, was ready and offered to give his vote for choosing Thomas Lee, bart., and Simon Mayne, esq., two burgesses for that parliament, by virtue and according to the exigency of the writ and precept aforesaid ; and the vote of him, the said Matthia«, then and there of right ought to have been admitted ; and the aforesaid William Wliite, Eichard Talbois, William Bell, and Eichard Heydon, so being then and there constables of the borough aforesaid, were then and there requested to receive and allow the vote of him, the said Matthias Ashby, in the premises ; never- theless they, the said William White, Eichard Talbois, William Bell, and Eichard Heydon, being then and there constables of the borough aforesaid, well knowing the premises, but contriving, and fraud II I (11 III/ and midicioiisli/ inlcii(liiiii, lo danuiiji; hi)u, llw said Matfhias AsJthi/, in this ItcJialf, and wholly to hinder and disap- point him of his privilege of and in the premises, did then and there hinder him, the said Matthias Ashby, to give his vote in that Ixlialf, iiiid did i\\('.n and there absolutely refuse to permit ASHBY V. WHITE ET ALIOS. 235 him, the said Matthias Ashby, to give his vote for choosing two burgesses for that borough to the parliament aforesaid, and did not receive, nor did they allow the vote of him, the said Matthias Ashby, for that election : and two burgesses of that borough were elected for the parliament aforesaid (he, the said Matthias Ashby, being excluded, as before is set forth) without any vote of him, the said Matthias Ashb}^ then and there, by virtue of the writ and precept aforesaid, to the enervation of the aforesaid privilege of him, the said Matthias Ashby, of and in the premises afore- said : whereupon the said Matthias Ashby saith that he is injured, and has sustained damage to the value of 200/., and thereupon he brings suit, &c. Not guilty. Verdict for the plaintiff. Note. — Judgment was arrested in B. E. by three judges against Holt, C. J. But on the 14th of January, 1703, this judg- ment was reversed in the House of Lords, and judgment given for the plaintiff by fifty lords against sixteen. After a verdict for the plaintiff on not guilty pleaded, it was moved in arrest of judgment by Serjeant Whitaker that this action was not maintainable. And for the difficulty, it was ordered to stand in the paper, and was argued, Trin. 1 Q. i\.nne, by Mr. Weld and Mr. Montague for the defendants, and this term judgment was given against the plaintiff", by the opinion of Powell, Powys, and Gould, justices; Holt, Chief Justice, being of opinion for the plaintiff". Gould, J. — I am of opinion, that judgment ought to be given in this case for the defendants, and I cannot by any means be reconciled to give my judgment for the plaintiff, for there are no footsteps to warrant such an opinion, but only a single case. I am of opinion, that this action is not main- tainable for these four reasons : first, because the defendants are judges of the thing, and act herein as judges ; secondly, because it is a parliamentary matter, with which we have nothing to do ; thirdly, the plaintiff's privilege of voting is not a matter of property or profit, so that the hindrance of it is merely damnum sine injurid ; fourthly, it relates to the public, and is a popular offence. As to the first, the king's writ constitutes the defendant a judge in this case, and gives him power to allow or disallow the plaintiff's vote. For this reason it is, that no action lies 236 ASHBY V. WHITE ET ALIOS. (Gould, J.) against a sheriff for taking insufficient bail, because lie is the judge of their sufficiency. So is the case of Metcalfe v. Hodgson, Hutt. 120, and their sufficiency is not traversable, 1 Lev. 86, Bentley v. Hove. Upon the same reason the resolu- tion of the court is founded in the case of Hammond v. Howell, Mod. 218, that no {h) action lies against a man for what he does as a judge. 9 Hen. 6, fo. 60, pi. 9. 2. This is a parliamentary matter, and the parliament is to judge whether the plaintiff had a right of electing or not, for it ma_y be a dispute whether the right of election be in a select number or in the populace ; and this is proper for the parliament to determine, and not for us ; and if we should take upon us to determine that he has a right to vote, and the parliament be of opinion that he has none, an inconvenience would follow from contrary judgments. So in 2 Vent. 37, Onslow's Case, it is adjudged that no (c) action lies for a double return of members to serve in parliament. The resolution of the King's Bench in the case of Barnardiston v. Soame, 2 Lev. 114, was given on this particular reason, that there had been a determination before in parliament in favour of the plaintiff ; and Hale said, '' we pursue the judgment of the parliament, but the plaintiff would have been too early, if he had come before ; " and yet that judgment was reversed. 3. It is not any matter of profit, either in prcesenti or infuturo. To raise an action upon the case, both damage and injury must concur, as in the case of 19 Hen. 6, 44, cited Hob. 267. If a man forge a bond in another's name, no action upon the case lies, till the bond be put in suit against the party ; so here, it may be, this refusal of the plaintift"'s vote may be no injury to him, according as the parliament shall decide the matter ; for they may adjudge that he had no right to vote, whereby it will appear, the plaintiff was mistaken in his opinion as to his right of election, and consequently has sustained no injury by the defendants' denying to take his vote. 4. It is a matter which relates to the public, and is a kind of popular offence, and therefore no action is given to the party ; for by the same reason one man may bring an action, a hundred {h) See 1 L. Kay. 451. c) 1 Wils. 127, contra. ASHBY V. WHITE ET ALIOS. 237 may, and so actions infinite for one default : which the law will not allow, as is agreed in JVilliam's Case, 5 Co. 73 a, and Boulstori's Case, Id. 104 b. Perhaps, in this case, after the parliament have adjudged the plaintiff has a right of voting, an information may lie against the sheriff for his refusal to receive it. So the case of Ford V. Hoskins, Cro. Jac. 368, 2 Brownl. 194. Such an action as this was never brought before, and therefore shall be taken not to lie, though that be not a conclusive reason. As to the case oi Sterling v. Turner, 2 Lev. 50, 2 Vent. 25, where an action was brought by the plaintiff", who was candidate for the place of bridgemaster of London, for refusing him a poll, and adjudged maintainable, there is a loss of a profitable place. So the case of Herrimj v. Finch, 2 Lev. 250, where the plaintiff' brought an action on the case against the defendant, for that, the plaintiff being a freeman, who had a voice in the election of mayor, the de|endant, being the present mayor, refused to admit his voice ; in that case the defendant is guilty of a breach of his faith : and in both these cases the plaintiff has no other remedy, either in parliament or anywhere else, as the plaintiff' in our case has. So that I am of opinion that judgment ought to be given for the defendant upon the merits. But upon this decla- ration the plaintiff cannot maintain any action, for the plaintiff' does not allege in his count that the two burgesses elected were returned, and if they were never returned, there is no damage to the plaintiff. See 2 Bulstr. 265. But I do not rely upon this fault in the declaration. PowYS, J. — I am of the same opinion, that no action lies against the defendant, 1, Because the defendant as bailiff is quasi a judge, and has a distinguishing power either to receive or refuse the votes of such as come to vote, and does preside in this affair at the time of election : though this determination be not conclusive, but subject to the judgment of the i3arliament, where the plaintiff' must take his remedy. 2. If the defendant misbehave himself in his office by making a false or double return, an action lies against him for it on the late statute, 7 & 8 W. 3, c. 7, and therein all this matter of refusing the plaintiff''s vote is comprised, and all the special matter is scanned in that action. And if you allow the plaintiff to maintain an action for this matter, then every elector may 238 ASHBY V. WHITE ET ALIOS. (POWYS, J.) bring his action, and so the officer shall 1)6 loaded with a number of actions that may ruin him ; and he may follow one law suit, though he may not be able to follow many. These actions pro- ceed from heat, I will not call it revenge ; and it is not like splitting of actions, scilicet, of one cause of action into many, but the causes of action are several, and the court cannot unite them, but A., B., C, D., E., and a hundred more, may at this rate bring actions. 3. There is a vast intricacy in determining the right of electors, and there is a variety, and a different manner and right of election in every borough almost. As in some boroughs every potwaller has a right to vote, in some residents only vote, and in others the outlying burgesses that live a hundred miles off ; nay, I know Ludlow, a borough, where all the burgesses' daughters' husbands have a right to vote. But now all this matter is comprised in an action against the officer for a false return. But it is objected that by the law of England every one who suffers a wrong has a remedy ; and here is a privilege lost, and shall not the plaintiff have a remedy ? To that I answer, first, it is not an injury, properly speaking ; it is not damnum, for the plaintiff does not lose his privilege by this refusal, for when the latter comes before the committee of elections, the plaintiff's vote will be allowed as a good vote ; and so in an action upon the case by one of the candidates for a false return, this tender of his vote by the plaintiff shall be allowed as much as if it had been given actually and received. And if this refusal of the plaintiff's vote be an injury, it is of so small and little consideration in the law, that no action will lie for it ; it is one of those things within the maxim cle viinimis non curat lex. In the case of Fordv. Hoskins, Cro. Jac. 368, Moo. 842, 2 Bulstr. 366, 1 Roll. Rep. 125, where an action is brought against the lord of a copyhold manor, for refusing to accept one named as successor for life by the preceding tenant for life, according to the custom, there the plaintiff suffers an injury, and yet it is adjudged that no action lies. Tlui late statute, 7 & 8 W. 3, c. 7, gives an action against the officer for a misfeasance to the party aggrieved, i.e., to the candidate, who is to have his vote; so that by the judg- ment of the parliament he cannot have any action. Before the ASHBY V. WHITE ET ALIOS. 239 statute of 23 Hen. 6, no {(J) action lay for the candidate, who was the party aggrieved, against the officer, for a false return, because it related to parliamentary matters, as is adjudged 3 Lev. 29, 30, Onslow v. liaph-i/, and yet he had an injury; and till the 7 & 8 W. 3, no (e) action lay for the candidate against the officer for a double return, as is adjudged in the same case, 3 Lev. 29, 2 Ventr. 37, and yet he suffered an injury thereby. A fortiori no action shall lie for the plaintiff in this case. 4. This action is not maintainable for another reason, which I think is a weighty one, viz. this action is imiiue inipressionis ; never the like action was brought before, and therefore as (/) Littleton, s. 108, uses it to prove that no action lay on the Statute of Merton, 20 Hen. 3, c. 6, si jycircntes conqacrantur, for if it had lain, it would have sometimes been put in use : so here. So in the case of Lord Say and Seal v. Stephens, Cro. Car. 135, for the law i^ not apt to catch at actions. It is agreed by the con- sent of all ages, that no {d) action lay at common law against the officer for a double return ; and yet in one year, viz. 1641, there were no less than seventy double returns, and yet they made no act to help it, though the parliament could not be mis- conusant of the matter. 5. Another reason against the action is, that the determination of this matter is particularly reserved to the parliament, as a matter properly conusable by them ; and to them it belongs to determine the fundamental rights of their house, and of the con- stituent parts of it, the members : and the courts of Westminster shall not tell them who shall sit there. Besides, we are not acquainted with the learning of elections ; and there is a parti- cular cunning in it not known to us, nor do we go by the same rules, and they often determine contrary to our opinions without doors. The late statute, which enacts that the last determination of the house as to the right of election shall be a rule to the judges in the trial of any cause, is a declaration of their power ; and the paths the judges are to walk in are chalked out to them, so that they are not left to use their own judgment ; but the determination of the house is to be the rule of law to us, and we are not to examine beyond that. Suppose in this action we ((Z) 1 Wils. 127, contra. (/) Sec Co. Litt. 81 b, 1:3th ed., n. 2. (e) Ihui. 240 ASHBY V. WHITE ET ALIUS. (POWYS, J.) should adjudge one way, and after in parliament it should be determined another way ; or suppose a judge of nisi'prms, before whom the cause comes to be tried, should say, " I am not bound by the rule of the last determination in parliament in this action, for this is another sort of action, not within the meaning of the statute : " these things would be of ill consequence. 6. Another reason against this action is, that if we should allow this action to lie for the plaintiff, a fortiori we must allow an action to be maintainable for the candidates against the defendant for the same refusal ; for the candidates have both damnum et injiiriam, and are the parties aggrieved ; and if we should allow that, we shall multiply actions upon the officers, at the suit of the candidates, and every particular elector too ; so that men will be thereby deterred from venturing to act in such offices, when the acting therein becomes so perilous to them and their families. I will not insist upon the exceptions to the declaration, but give my opinion upon the merits. I think there is a sufficient allegation in the count of the return of the election, especially after a verdict. Nor shall I insist that it does not appear in the declaration how near the party was to be chosen ; nor that this action is brought merely for a possi- bility ; for this is an action for a personal injury ; and the plaintiff might give his vote for which he pleased, either the candidate that had fewer or more voices ; or he might give bis vote for one who had no other burgess's voice but the plaintiff's own ; for the plaintiff, in those cases, is deprived as much of his privilege, as if the person for whom he voted was nearest to be chosen. But it has been objected that the defendant should not have absolutely refused to receive the plaintiff's vote, but should have reserved it for scrutiny, and slioiild have admitted it dc bene esse. To that I answer; he might indeed have done so ; but he was not obliged to do it, for the officer is supposed to know every man's right and pretence of election, and commonly the weaker party are for bringing in now votes, and devising new contrivances; but tbc (A'WcA'T ought to disallow them at first, and not give so iiiurli countenance to such a practice as to reserve it for a scrutiny. As hei'c in Westminster-hall, wlion a matter of law ASHBY V. WHITE ET ALIOS. 241 comes before us, if it be a clear case, we may give judgment in it on the first argument, and it will be a good judgment, although it be usual to hear several arguments. The objection of weight is the resolution between SterUn\. Comm. 246. 16 2 •244 ASHBY V. WHITE ET ALIOS. (Powell, J.) proves his title, he may afterwards have an action upon the case against the ordinary for that wilful wrong, delay, and trouble, that he hath put him to, and he shall recover costs and damages, not in respect of the value of the church (for there are no damages for that by the common law, but by West. 2, 13, Edw. 1, st. 1, c. 5, s. 3), but for the other respects before mentioned. But if he name the ordinary in the qiiare impedit, he can have no other action of the case ; neither shall he have such action upon the case before he hath tried his title in a proper action, and against the proper parties. So that in that case, though the patron's right, being found by the jury on the jure pati'onatus, is in some measure determined, yet he shall not maintain an action upon the case against the ordinary, but he must first prove his title in a proper manner by a qnare impedit, and there- by prove the ordinary a disturber ; and after that he may bring his action on the case against the ordinary for his damages. Where the party has no possibility of settling his right, as in the case of Sterling and Turner, there he shall maintain his action for the disturbance before his right be settled ; but where he has a proper method, as in our case, he shall not maintain an action till his right be determined ; and the reason of this difference is very strong, because of the inconveniences of contrary deter- minations upon the several actions, or of the different judgments by the House of Commons, and the judges at common law ; for the house may be of opinion that the plaintiff has a right to vote, and 3^et the judges may be of opinion upon the action that he hath none, and give judgment against him ; and even though he has a right, he will have no remedy; et e converso. Jkit this difference of opinions will be prevented by such previous appli- cation to the house before any action brought. Besides, in this case, here is not a damage, upon which this action is maintain- able ; for, to maintain an action upon the case, there must be either a real damage, or a possibility of a real damage, and not merely a damage in opinion, or consequence of law. For a possibility of a damage, as an action ui)on the case, lies for the owner of an ancient market, for erecting a new market near his ; and yet perhaps the cattle that come to the old market might not ])e sold, and so no toll due, and consequently no real damage ; ASHBY V. WHITE ET ALTOS. 245 but there is a possibility of damage. Ihit in our case there is no possibiHty of a damage. It is laid in the declaration, that the defendant obstructed him from giving his vote ; but that is too general without showing the manner how he obstructed him, as that the defendant kept him out of the usual place where the votes are taken. The plaintiff shows no damage in his count, and the verdict will not supply it, for the plaintiff ought always to allege a damage ; as in an action upon the case, brought against the lessee by him in the reversion, for refusing to permit him to enter to view waste, it would not be sufficient to allege thus generally, that the defendant obstructed him, &c. It is laid here, that the defendants ipsum the plaintiff ad suff)-ariium sunm dare obstriurentnt, et j^cnitus recusarcvKnt : 1 do not know what that means in this case. Indeed, it is a sufficient description of a disseisin of a rent seek ; but if the plaintiff gives his vote for a candidate, that is as effectual as if the officer writ it down, for it is his vote by the giving of it, and the officer cannot hinder him of it, and on a poll it will be a good vote, and must be allowed, and so there is no wrong done to the plaintiff, for his vote was a good vote notwithstanding what the defendant did. Besides, the plaintiff can make no profit of his vote ; and it is like the case of a qum-e impedit, in wliich the plaintilf at common law recovered no damages, because he ought not to sell the presentation, and so could make no profit of it. So here, for it would be criminal for the plaintiff to sell his vote. Perhaps the putting the plaintiff to trouble and charge, to maintain and vindicate his right of voting, might be sufficient damage to maintain an action on the case ; but as our case is, I cannot see that the plaintiff' has received any damage. Great inconveniences do attend the al- lowance of this action, as my brothers have said ; as that it will occasion multiplicity of actions, and for that reason it is, that the law gives no action to a private person for a public nuisance, for there is a remedy by indictment to redress it. So here the plaintiff has a remedy in parliament. As to the ease of Westhury v. Powell, Co. Lit. 50 a, where the inhabitants of Southwark had a watering-place for their cattle by custom, which was stopped up, there any inhabitant might have an action, because there was no other remedy by presentment or the like ; but if it had been a nuisance presentable, no action (I) would have lain. (1) See Ld. Raym. 486. 246 A8HBY V. WHITE ET ALIOS. (Powell, J.) So in the case of StcrUiifi and Turner, the party had no other remedy. So m the case of Hcrrinci and Finch, which is a strong case ; and I do not know whether an action will lie in that case, for refusing to admit his voice to the election of a mayor ; but there the plaintiff has no other remedy, nor other way to settle his right. If we should adjudge that this action lies, it will be dangerous to execute any office of this nature, and will deter men from undertaking public offices, which will be a thing of ill consequence. I am of opinion upon the whole matter, that after a determination in the parliament for the plaintiff's right, the trouble and charge of vindicating it will maintain an action, but in this case no action lies, and therefore the judgment ought to be arrested. Holt, Chief Justice {m). — The single question in this case is. Whether, if a free burgess of a corporation, who has an un- doubted right to give his vote in the election of a burgess to serve in parliament, be refused and hindered to give it by the officer, an action on the case will lie against such officer ? I am of opinion that judgment ought to be given in this case for the plaintiff'. My brothers differ from me in opinion ; and they all differ from one another in the reasons of their opinion ; but notwithstanding their opinion, I think the plaintiff ought to recover and that this action is well maintainable, and ought to lie. I will consider their reasons. My brother Gould thinks no action will lie against the defendant, because, as he says, he is a judge; my brother Powys indeed says, he is no judge, but quasi a judge ; but my brother Powell is of opinion, that the defendant neither is a judge, nor anything like a judge, and that is true : for the defendant is only an officer to execute the precept, i.e., only to give notice to the electors of the time and place of election, and to assemble them together in order to elect, and upon the conclusion to cast up the poll, and declare which candidate has the majority. [m) Lord Holt's argunifiit lias bnon y.'lVhitev^uAmt\\ccAifi(iQ^ John Patey and more fully and lucidly sot forth by him- others." This manuscript probably con- self in a manusciipt whii h was first pub- tains a revised form of the judgment pre- lished in 18-'}7, al tlir iii|iiest of Lord jiared for use in the House of Lords ; see Dcnman, umler llio title of "The judg- ;wa/, p. 282. nients of Lord Holt in the case of Anhbij ASHBY V. WHITE ET ALIOS. 247 But to proceed, I will do these two things : First, I will main- tain that the plaintiff has a right and privilege to give his vote : Secondly, in consequence thereof, that if he be hindered in the enjoyment or exercise of that right, the law gives him an action against the disturber, and that this is the proper action given l)y the law. I did not at first think it would be any difficulty to prove that the plaintiff has a right to vote, nor necessary to maintain it, but from what my brothers have said in their arguments I find it will be necessary to prove it. It is not to be doubted, but that the Commons of England have a great and considerable right in the government, and a share in the legislative, without whom no law passes ; but because of their vast numbers this right is not exercisable by them in their proper persons, and therefore, by the constitution of England, it has been directed that it should be exercised by representatives, chosen by and out of themselves, who have the whole right of all the Commons of England vested in them : and this representation is exercised in three different qualities, either as knights of shires, citizens of cities, or bur- gesses of boroughs ; and these are the persons qualified to represent all the Commons of England. The election of knights belongs to the freeholders of the counties, and it is an original right vested in and inseparable from the freehold, and can no more be severed from their freehold, than the freehold itself can be taken away. Before the statute of 8 Hen. 6, c. 7, any man that had a freehold, though never so small, had a right of voting, but by that statute the right of election is confined to such persons as have lands or tenements to the yearly value of forty shillings at least, because, as the statute says, of the tumults and disorders which happened at elections, by the excessive and out- rageous number of electors ; but still the right of election is an original right, incident to and inseparable from the freehold. As for citizens and burgesses, they depend on the same right as the knights of shires, and differ only as to the tenure, but the right and manner of their election is on the same foundation. JSTow, boroughs are of two sorts : first, where the electors give their voices by reason of their burgership ; or, secondly, by reason of their being members of the corporation. Littleton, in his chapter of tenure in burgage, 16'2, Co. Litt. 108 b, 109, says, 348 ASHBY V. WHITE ET ALIOS. (Holt, CJ.) " Tenure in burgage is, where an ancient borough is, of the which the king is lord, of whom the tenants hold by certain rent, and it is but a tenure in socage; " and sect. 164, he says, " and it is to wit, that the ancient towns, called boroughs, be the most ancient towns that be within England, and are called boroughs, because of them come the burgesses to parliament." So that the tenure of burgage is from the antiquity, and their tenure in socage is the reason of their estate, and the right of election is annexed to their estate. So that it is part of the constitution of England, that these boroughs shall elect members to serve in parliament, whether they be boroughs corporate or not corporate ; and in that case the right of election is a privilege annexed to the burgage land, and is, as I may properly call it, a real privilege. But the second sort is, where a corpora- tion is created by charter, or by prescription, and the members of the corporation, as such, choose burgesses to serve in parlia- ment. The first sort have a right of choosing burgesses as a real right, but here in this last case it is a personal right, and not a real one, and is exercised in such a manner as the charter or custom prescribes ; and the inheritance of this right, or the right of election itself, is in the whole body politic, but the exercise and enjoyment of this right is in the particular members. And when this right of election is granted within time of memory, it is a franchise that can be given only to a corporation ; as is resolved by all the judges, against my lord Hobart, in the case of Dnwiannon in Ireland, 12 Co. 120, 121, that if the king grant to the inhabitants of Islington to be a free borough, and that the burgesses of the same town may elect two burgesses to serve in parliament, that {n) such a grant of such privilege to burgesses not incorporated is void, for the in- habitants have not capacity to take an inheritance. See Hob. 15. The principal case there was, the king constituted the town of Dungannon to be a free borough, and that the inhabitants thereof shall be a body politic and corporate, consisting of one provost, twelve free l^urgesses, and commonalty ; and in the same name may sue and be sued ; et quod ipsi jyriefatus prce- positus et lil)eri burgenscs hurgi j^^'f^'lidi ^t successores sui in (n) See Co. Litt. 3 a. ASHBY V. WHITE ET ALIOS 249 verpetumn haheant j^lcnam jwtcstatem et authoritatem clujendi, mittendi, et retornandi dims diacretos et idoneos vivos ad inservien- dum et atteudendiini in qiiolihet jx^'i'lifif^ievto, in dicta ver/no nostra Hihernice in postevvm. tenendo ; and so proceeds to give them power to treat, and give voice in parliament, as other burgesses of any other ancient borough, either in Ireland or England, have used to do. And upon this grant it was adjudged, by all the Judges of England, that this power to elect burgesses is an inheritance of which the provost and burgesses were not capable, for that it ought to be vested in the entire corporation, viz. provost, burgesses, and commonalty, and that therefore the law in this case did vest that privilege in the whole corporation in point of interest, though the execution of it was committed to some persons, members of the same corporation ; 12 Co. 120, 121 ; Hob. 14, 15. As to the manner of election, every borough subsists^ on its own foundation, and where this privilege of election is used by particular persons, it is a particular right vested in every particular man ; for if we consider the matter, it will appear that the particular members and electors, their persons, their estates, and their liberties are concerned in the laws that are made, and they are represented as jjarticular persons, and not quateniis a body politic ; therefore, when their particular rights and properties are to be bound (which are much more valuable perhaps than those of the corporation) by the act of the representative, he ought to represent the private persons. And this is evident from all the writs, which were anciently issued for levying the wages of the knights and bur- gesses that served in parliament. As 46 Edw. 3, Bo. Pari, menih. 4 in dovso. For when wages were paid to the members, they were not assessed upon the corporation, but upon the commonalty as private persons, as the writ shows, which is indeed directed to the sheriff, or to the mayor, &c., yet the com- mand is ' quod de communitatc caniitatus civitatis vel hurgi, liahere faciat militihus civihus aut hnrciensUms 10/. pro expensis suis.' But now, if the corporation were only to be represented, and not the particular members of it, then the corporation only ought to be at the charge; but it is plain that the particular members are at the charge. And this is no new thing, but agreeable to reason and the rules of law, that a franchise should be vested in 250 ASHBY V. WHITE ET ALIOS. (Holt, C.J.) the corporation aggregate, and yet the benefit of it to redound to the particular members, and to be enjoyed by them in their private capacity. As is the case of Walter and Hanger, Moo. 832, 833, where the king granted to the mayor and citizens of JjondiOn, quod nulla prisagia sint soluta de vinis civium et liberorum Jiominum de London, d-c. And there it was resolved, that although the grant be to the corporation, yet it should not enure to the body politic of the city, but to the particular persons of the corporation, who should have the fruit and execution of the grant for their private wines, and it should not extend to the wines belonging to the body politic ; and so is the constant experience at this day. So in the case of Mellor v. Spateman, 1 Saund. 343, where the corporation of Derby claim common by prescription, and though the inheritance of the common be in the body politic, yet the particular members enjoy the fruit and benefit of it, and put in their own cattle to feed on the common, and not the cattle belonging to the corporation : but that is not indeed our case. But from hence it appears that every man, that is to give his vote on the election of members to serve in parliament, has a several and a particular right in his private capacity, as a citizen or burgess. And surely it cannot be said that this is so inconsiderable a right as to apply that maxim to it, de minimis non curat lex. A right that a man has to give his vote at the election of a person to represent him in parliament, there to concur to the making of laws which are to bind his liberty and property, is a most transcendent thing, and of an high nature, and the law takes notice of it as such in divers statutes ; as in the statute of 34 & 35 Hen. 8, c. 13, intituled an act for making of knights and burgesses within the county and city of Chester, where in the preamble it is said that "whereas the said county palatine of Chester, is, and hath been always hitherto, exempt, excluded, and separated, out and from the king's court, l)y reason whereof the said inhabitants have hitherto sustained manifold disherisons, losses, and damages, as well in their lands, goods, and bodies, as in the good, civil, and politic governance and maintenance of the commonwealth of their said county," &c. So that the opinion of tlie parliament is that the want of this privilege occasions great loss and damage. ASHBY V. WHITE ET ALIOS. 251 And the same farther appears from the 25 Car. 2, c. 9, an act to enable the county palatine of Durham to send knif^hts and bur- gesses to serve in parliament, which recites, "whereas the inhabitants of the county palatine of Durham have not hitherto had the liberty and privilege of electing and sending any knights and burgesses to the high court of parliament," &c. The right of voting at the election of burgesses is a thing of the highest importance, and so great a privilege, that it is a great injury to deprive the plaintiff of it. These reasons have satisfied me to the first point. 2. If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it ; and indeed it is a vain thing to imagine a right without a remedy (o) ; for want of right and want of remedy are reciprocal. As if a purchaser of an advowson in fee-simple, before any presentment, suffer an usurpation, and six months to pass, without bringing his qnare imped it, he {})) has lost his ri;j;ht to the advowson, because he has lost his quare impedit, wdiich was his only remedy; for he {q) could not maintain a writ of right of advowson ; and though he afterwards usurp and die, and the advowson descend to his heir; yet (?•) the heir cannot be remitted, but the advowson is lost for ever without recovery. 6 Co. 50. Where a man has but one remedy to come at his right, if he loses that, he loses his right. It would look very strange, when the Commons of England are so fond of their right of sending representatives to parliament, that it should be in the power of a sheriff' or other officer to deprive them of that right, and yet that they should have no remedy ; it is a thing to be admired at by all mankind. Sup- posing then that the plaintiff" had a right of voting, and so it appears on the record, and the defendant has excluded him from it, nobody can say that the defendant has done well : then he must have done ill, for he has deprived the plaintiff' of his right ; so that the plaintiff' having a right to vote, and the defendant having hindered him of it, it is an injury to the plaintiff. Where a new act of parliament is made for the benefit of the (o) D. ace. Co. 58 b. 293 a. (^;) See, now, 7 Ann. c. IS. (r) See 6 Co. 58. {q) See H. Bl. 1 ; Lit. s. 514 ; Co. Lit. 252 ASHBY V. WHITE ET ALIOS. (Holt, CJ.) subject, if a man be hindered from the enjoyment of it, he shall have an action against such person who so obstructed him. How else comes an action to be maintainable by the party on the statute of 2 Kic. 2, de scandalis magnatnm, 12 Co. 134, but in consequence of law ? For the statute was made for the preservation of the public peace, and that is the reason that no writ of error lies in the Ex- chequer Chamber, by force of the statute of 27 Eliz., in a judgment in the King's Bench on an action de scandalis, for it is not included within the words of the statute : for though the statute says, such writ shall lie upon judgments in actions on the case, yet it does not extend to that action, although it be an action on the case, because (s) it is an action of a far higher degree, being founded specially uj^on a statute ; Cro. Car. 142. If then, when a statute gives a right, the party shall have an action for the infringement of it, is it not as forcible when a man has his right by the common law ? This right of voting is a right in the plaintiff by the common law, and consequently he shall maintain an action for the obstruction of it. But there wants not a statute too in this case, for by West. 1, 3 Edw. 1, c. 5, it is enacted, "that forasmuch as elections ought to be free, the king forbids, upon grievous forfeiture, that any great man, or other, by power of arms, or by malice, or menaces, shall disturb to make free election." 2 Inst. 168, 169. And this statute, as my Lord Coke observes, is only an enforcement of the common law ; and if the parliament thought the freedom of elections to be a matter of that consequence, as to give their sanction to it, and to enact that they should be free, it is a violation of that statute to dis- turb the plaintiff in this case in giving his vote at an election, and consequently actionable. And I am of opinion, that this action on the case is a proper action. My brother Powell indeed thinks, that an action upon the case is not maintainable, because there is no hurt or damage to the plaintiff; but surely every injury imports a damage, though it does not cost the party one farthing, and it is im- possible to prove the contrary ; for a daiiuKje is not merely jx^eii- niani, l)i(t an injury imports d damaije, ivJien a man is thereby hindered of his ritjht. As in an action for slanderous words, (*) See 1 111. Com. 28. ASHBY V. WHITE ET ALIOS. 253 though a man does not lose a penny by reason of the speaking them, yet he shall have an action. So if a man gives another a cuff on the ear, though it cost him nothing, no not so much as a little diacJiylon, yet he shall have his action, for it is a personal injury. So a man shall have an action against another for riding over his ground, though it do him no damage : for it is an invasion of his property, and the other has no right to come there ; and in these cases the action is brought vi et armis. But for invasion of another's franchise trespass vi et armis does not lie, but an action of trespass on the case ; as where a man has retorna hreritiin, he shall have an action against any one who enters and invades his franchise, though he lose nothing by it. So here in the principal case, the plaintiff is obstructed of his right, and shall therefore have his action. And it is no objection to say that it will occasion multiplicity of actions : for if men will multiply injuries, actions must be multiplied too, for every man that is injured ought to have his recompense. Suj^pose the defendant had beat forty or fifty men, the damage done to each one is peculiar to himself, and he shall have his action. So if many persons receive a private injury by a public nuisance, every man shall have his action, as is agreed in Williams' Case, 5 Co. 73 a ; and Westhury and Poivell, Co. Lit. 56 a. Indeed, tcJiere many men are offended by one particular act, there they must 'proceed by way of indictment, and not of action; for in that case the law nnll not multiply actions. But it is otherwise when one man only is offended by that act ; he shall have his action ; as if a man dig a pit in a common, every commoner shall have an action on the case jJ6'r quod commuitiani suam in tam amplo mode habere non potuit ; for every commoner has a several right. But it would be otherwise if a man dig a pit in a highway ; every passenger shall not bring his action, but the {t) party shall be punished by indictment, because the injury is general, and common to all that pass. But when the injury is particular and peculiar to every man, each man shall have his action. In the case of Turner v. Sterling, the plaintiff" was not elected ; he could not give in evidence the loss of his place as a damage, for he was never in it ; but the gist of the action is, that, the plamtiff' having a right to stand for the place, and it bemg difficult to determine (0 See 1 Ld. Raym. 486. 254 ASHBY V. WHITE ET ALIOS. (Holt, CJ.) who had the majority, he had therefore a right to demand a poll, and the defendant, by denying it, was liable to an action. If public officers will infringe men's rights, they ought to pay greater damages than other men, to deter and hinder other officers from the like offences. So the case of Himt and Doxc- man, Cro. Jac, 478, where an action on the case is brought by him m reversion against lessee for years for refusing to let him enter into the house to see whether any waste was committed. In that case the action is not founded on the damage, for it did not appear that any waste was done, but because the plaintiff was hindered in the enjoyment of his right, and surely no other reason for the action can be supposed. But m the principal case, my brother says we cannot judge of this matter, because it is a parliamentary thing. ! by all means, be very tender of that. Besides, it is intricate, that there may be contrariety of opinions. But this matter can never come in question in parliament, for it is agreed that the persons for whom the plaintiff voted were elected, so that the action is brought for being deprived of his vote ; and if it were carried for the other candidates against whom he voted, his damage would be less. To allow this action will make public officers more careful to observe the constitution of cities and boroughs, and not to be so partial as they commonly are in all elections, which is indeed a great and growing mischief, and tends to the pre- judice of the peace of the nation. But they say that this is a matter out of our jurisdiction, and we ought not to enlarge it. I agree we ought not to encroach or enlarge our jurisdiction ; by so doing we usurp both on the right of the queen and the people : but sure we may determine on a charter granted by the king, or on a matter of custom or prescription, when it comes before us, without encroaching on the parliament. And if it be a matter within our jurisdiction, we are bound by our oaths to judge of it. This is a matter of property determinable before us. "Was ever such a petition heard of in parliament, as that a man was hindered of giving his vote, and praying them to give him remedy? The parliament undoubtedly would say, take your remedy at law. It is not like the case of determining the right of election between the candidates. ASHBY V. WHITE ET ALIOS. 255 My brother Powell says, that the plamtiff's right of voting ought first to have been determined in i:)arliament, and to that purpose cites the opinion of my Lord Hobart, 318, that the patron may bring his action upon the case against the ordinary after a judgment for him in a qnare impcdit, but not before. It is indeed a fine opinion, but I do not know whether it will bear debating, or how it will prove when it comes to be handled. For at common law the patron had no remedy for damages against the disturber, but the statute 13 Ed. 1, st. 1, c. 5, s. 3, gives him damages ; but if he will not make the bishop a party to the suit, he has lost his remedy which the statute gives him. But in our case the plaintiff has no opportunity to have remedy elsewhere. My brother Powys has cited the opinion of Littleton on the statute of Merton that no action lay upon the words " si parcntcs conquerauttir," because none had ever been brought; yet he cannot depend upon it. Lideed, that is an argument, when it is founded upon reason, but it is none when it is against reason. But I will consider the opinion. Some question has arisen on the opening of that statute on those words, " si jm rentes con- quer ant ur,''' &.C., what was the meaning of them, whether they meant a complaint in a court in a judicial manner {u). But it {x) is plain the word " conquenuttur'" means only " si parentes lamententii7\'' that is, only a complaint in pais, and not in a court : for the guardian in socage shall enter in that case, and shall have a special writ de ejectione enstodice terra et h(credii<. But this saying has no great force ; if it had, it would have been destructive of many new actions, which are at this day held to be good law. The case of Hunt and Dowinan, before mentioned, was the first action of that nature ; but it was grounded on the common reason and the ancient justice of the law. So the case of Turner and Sterling. Let us consider wherein the law con- sists, and 'we shall find it to be, not in particular instances and precedents, but in the reason of the law, and ubi eadem ratio, idem jus. This privilege of voting does not differ from any other {u) That usage may explain the mean- Tindal, C.J., said: " We attribute great ing of an ancient statute, see Ilex v. weight to that maxim of law, contempo- Scvt, 3 T. R. 604 ; Shcppard v. Gosnald, ranect expositio fortissima est in lege." Vaugh. 169 ; Dunbar v. Roxburghe, 3 CI. And this was said with reference to a & Fin. 335 ; The Montrose Peerage Case, statute no older than 5 & 6 W. & M. (See 1 Macqueen, H. L. 401. In Bank of B7-oo7h's Legal Ma-xims, 6th ed. 638, etseq.) England v. Anderson, 3 V,. K. C. 666, (r) See Litt. lOS. 256 ASHBY V. WHITE ET ALIOS. (Holt, C.J.) franchise whatsoever. If the House of Commons do determine this matter, it is not that they have an original right, l)ut as incident to elections. But we do not deny them their right of examining elections ; but we must not be frighted, when a matter of property comes before us, by saying it belongs to the parlia- ment ; we must exert the queen's jurisdiction. My opinion is founded on the law of England. The case of Mors and Slue, 1 Vent. 190, 238, was the first action of that nature : but the novelty of it was no objection to it. So the case of Smith and CrasJiaiv, Cro. Car. 15, W. Jones, 93, that an action of the case lay for falsely and maliciously indicting the plaintiff for treason ; though the objections were strong against it, yet it was adjudged, that if the prosecution were without probable cause, there was as much reason the action should be maintained as in other cases. So 15 Car. 2, C. B., hetween Bodily and Long, it was adjudged by Bridgman, Chief Justice, &c., that an action on the case lay for a riding whenever the plaintiff and his wife fought, for it was a scandalous and reproachful thing {y). So in the case of Herring and Finch, 2 Lev. 250, nobody scrupled but that the action well lay, for the plaintiff* was thereby deprived of his right. And if an action is maintainable against an officer for hindering the plaintiff from voting for a mayor of a corporation, who cannot bind him in his liberty nor estate, to say that yet this action will not lie in our case, for hindering the plaintiff to vote at an elec- tion of his representative in parliament, is inconsistent. There- fore, my opinion is, that the plaintiff ought to have judgment. Friday, the 14th of January, 1703, this (z) judgment was reversed in the House of Lords, and judgment given for the plaintiff by fifty lords against sixteen. Trevor, Chief Justice, and Baron Price were of opinion with the three judges of the King's Bench ; Ward, C.B., and Bury and Smith, barons, were of opinion with the Lord Chief Justice Holt; Tracy duhitante, Neville and Jilencowe absent. {Note. — I had it from good hands, that Tracy agreed clearly that the action lay, l)ut was doubtful upon the manner of laying the declaration.) (y) As to "liiliii;^ Skiiiiiiiin^^tnii," or Kayiii. 401; Gropp v. I'ilney, 3 Salk. " nding the staii^, " s(;e also li. v. J{i>/ieri.i, 226. 'i Kcb. 578 ; Mason v. Jennings, Sir T. (:;) Sui' 1 Bro. Tail. Cas. 45. ASHBY V. WHITE ET ALIOS. 257 Upon the arguments of this case, Holt, Chief Justice, said, the plaintiff has a particular right vested in him to vote. Is it not then a wrong, and an injury to that right, to refuse to receive his vote? So, if a borough has a right of common, and the freemen are hindered from enjoying it by enclosure and the like, every freeman may maintain his action. This action is brought by the plaintiff for the infringement of his iranchise. You would have nothing to be a damage but what is pecuniary, and a damage to property. If a man has retorna hrevium, although no fees were due to him at common law, yet if the sheriff enters within his liberty, and executes process there, it is an invasion of his franchise, and he may bring his action ; and there is the same reason in this case. Although this matter relates to the parliament, yet it is an injury precedaneous to the parliament, as my Lord Hale said in the case of Bernardiston v. Soanie, 2 Lev. 114, 116. The parliament cannot judge of this injury, nor give damage to the plaintiff' for it : they cannot make him a recompense. Let all people come in and vote fairly : it is to support one or the other party to deny any man's vote. By my consent, if such an action comes to be tried before me, I will direct the jury to make him pay well for it ; it is denying him his English right : and if this action be not allowed, a man may be for ever deprived of it. It is a great privilege to choose such persons as are to bind a man's life and property by the laws they make. Ashlni V. Wliite is usually cited to exemplifv the maxim of U^ijusiU the law, ubi jus ibi remediiuit ; a maxim which has at all times been considered so valuable, that it gave occasion to . ^^^^ ^^ ^^^q the first invention of that form of action called an action on the case. For the statute of Westminster 2, 13 Edw. I. c. 24, which was only in affirmance of the common law on this subject, and was passed to quicken the diligence of the clerks in the chancery, who were too much attached to ancient precedents, enacted, that " whensoever from thence- forth a writ shall be found in the chancery, and in a like case falling under the same right, and requiring like remedy, no precedent of a writ can be produced, the clerks in chan- cery shall agree in forming a new one ; and, if they cannot S.L.C. — VOL. I. 17 258 ASHBY V. WHITE ET ALIOS. Novelty of complaint no objection. agree, it shall be adjourned till the next parliament, where a writ shall be framed by consent of the learned in the law, lest it happen for the future that the court of our lord the king be deficient in doing justice to the suitors." Accord- ingly the courts have always held that the novelty of the particular complaint alleged in an action on the case is no objection, provided an injury cognizable by law be shown to have been inflicted on the plaintiff. Thus, in Chapman v. Pickersgill, 2 Wilson, 146, which was an action for falsely and maliciously suing out a commission of bankruptcy, Pratt, C.J., in answer to the objection that the action was of a novel description, said that " this had been urged in Ashhy V. White, but he did not wish ever to hear it again. This was an action for a tort ; torts were infinitely various, for there was not anything in nature that might not be con- verted into an instrument of mischief." So in Pasley v. Freeman, 3 T. R. 63, per Ashurst, J. : "Another argument which has been made use of is that this is a new case, and that there is no precedent of such an action. Where cases are new in their principle, there I admit that it is necessary to have recourse to legislative interposition in order to remedy the grievance ; but where the case is only new in the instance, and the only question is upon the application of a principle recognised in the law to such new case, it will be just as competent to courts of justice to apply the principle to any case that may arise two centuries hence as it was two centuries ago. If it were not so, we ought to blot out of our law books one fourth part of the cases that are to be found in them." lux' Winsmore v. Grcenhank, Willes, 577, the declaration stated that the plaintiff's wife unlawfully, and against his consent, went away and absented herself from him, and that during her absence a large estate was devised to her separate use ; that she thereupon became desirous of being reconciled and cohabiting with her husband, but that tlie defendant persuaded and enticed her to continue apart till her death, which she did ; whereby the plaintiff lost the comfort and society of his wife, and her assistance in his domestic affairs, and the profits and advantage of her fortune. On motion in arrest of judgment it was objected that the action was unprecedented ; but Willes, C.J., said, " a special action on the case was introduced for this reason, that the law would never suffer an injury and a damage without a remedy : but there must be new facts in every special action on the case." Numerous other ASHBY V. WH[TE ET ALIOS. 259 instances might here he cited, hut this in so clear a matter seems unnecessary. See the judgment in Lanqridgc v. Levy, 2 M. c*;. W. 519. The class of cases from which it is important to distinguish Damage with- Aslihy V. White, consists of those in which a damage is incurred ?"^ l°f '^^ by the plaintiff, but a damage not occasioned by anything which the law esteems an injury. In such cases he is said to suffer damnum sine injuria, and can maintain no action. Thus, in Pryce v. Belcher, 3 C. B. 58, 4 Id. 866, which presents some features of resemblance to Aslihy v. White, it appeared that Pryce, who was registered as a voter for the borough of Abingdon, but who, in consequence of non- residence, had, under 6 & 7 Vict. c. 18, s. 79, in fact lost the right to vote, had notwithstanding tendered his vote at an election for the borough ; whereupon Belcher, the returning officer, exceeding his duty, which, by 6 & 7 Vict. c. 18, s. 81, was confined to putting questions as to the voter's identity, and whether he had voted before at the election, wilfully, but not maliciously, instituted an inquiry into Pryce's right to vote, and, upon his appearing not to be qualified in point of residence, refused to receive the vote except as tendered, and did not reckon it amongst the votes given for the can- didate for whom Pryce desired to vote. An action upon the case was thereupon brought by Pryce, in which he declared in one count for the refusal to permit him to vote, in another for the omission of his vote in the account of the poll, and in a third for the unauthorised scrutiny and decision upon his right to vote whereby, as he alleged, he was delayed and hindered in the exercise of his right ; all which counts were held to present good 2)rimd facie causes of action ; 3 C. B. 58. But it was finally decided that Pryce could not maintain his action, on the ground " that although a part}' in the situation of the plaintiff has the power to compel the returning officer, under the apprehension of a prosecution, to put his name upon the poll, he has not the right to do so ; that in doing so he is acting in direct contravention of the act of parliament, the terms of which are express ' that he shall not be entitled to vote ; ' and that the rejection of his vote cannot amount to a violation of anything which the law can consider as his right. The foundation of the plaintiffs action is the injury to his right; but we are of opinion, for the reasons above given, that he has no right, and, consequently, that he has suffered no injury ; " 4 C. B. 866, 883. 17 2 260 ASHBY V. WHITE ET ALIOS. Groundless legal pro- ceedings. Jfo injuria, unless there be malice and want of reason- able and pro- bable cauee. 'Diere must be dainaf^e. More striking instances of damnum absque injuria occur in legal proceedings, instituted for the bo7id fide purpose of asserting some supposed right, or prosecuting a criminal charge, which however in the event proves groundless. In such cases, in order, it seems, to facilitate the administra- tion of justice, it is established that unless there be both malice and an absence of reasonable and probable cause, the person against whom the proceedings are taken has no legal ground of action. See note (c) to Skinner v. Gunton, 1 Wms. Saund. 230 a ; and for later instances see Gihhs v. Pike, 9 M. & W. 351, where one who, without malice, had registered under 1 & 2 Vict. c. 110, an order which, as he contended, had the effect of a judgment, was held justified, without regard to whether it had that eftect, or was properly registered; Horsley v. Styles, 69 L. T. 222, where a docu- ment was erroneously registered as a bill of sale ; Daries v. Jenkins, 11 M. & W. 745, where an attorney, by mistake, sued to judgment and execution a person of the same name as the intended defendant ; De Medina v. Grove, 10 Q. B. 152, 172, where a judgment debtor was taken in execution for more than was due on the judgment, and malice and want of reasonable and probable cause were not proved (secus where the amount was agreed, Wentworth v. Ballen, 9 B. & C. 840) ; Phillips v. Naylor, 3 H. & N. 14, where a person entitled to protection under the Bankruptcy Acts was arrested for non-payment of rates; Churchill v. Siggers, 3 E. & B. 929 ; Jenings v. Florence, 2 C. B. N. S. 467, where there was malice and want of probable cause, with damage ; lioret v. Lewis, 5 D. & L. 371, where a person privileged from arrest was nevertheless arrested through malice, but not without reasonable or probable cause ; Gilding v. Eyre, 10 C. B. N. S. 592, where the party arrested had not obtained an order for his discharge ; Bam Coomar Coondoo's Case, 2 App. Cas. 186 ; Eayson v. ^S*. London Trams, (1893) 2 Q. B. 304, where sunnnary proceedings were taken against the plaintiff under the Tramways Act, 1870. And, though there be malice and want of reasonable and probable cause, there must also be wl)at the law accounts damage. This, accordhig to Lord Holt, in Savile V. Jioberfs, 1 Ld. Kaym. 374, may be of three kinds : damage to a man's fame ; damage to the person ; damages to property. And such is still the law, for " The broad canon is still true that in the present day, and according to ASHBY V. WHITE ET ALIOS. 261 our present law, the bringinf;^ of an ordinary action, however maliciously, and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecution ; " jycr Bowen, L.J., Quartz Hill Co. v. Eyre, 11 Q. 13. D. 674, 690 ; see Cotterdl v. Jones, 11 C. B. 713 ; The Walter D. Wallet, (1893) P. 202. An unreversed iudgment raises a necessarv presumption Unreversed . . . .".,.■, judgment that the proceedings to obtain it were mstituted with raises a neces- reasonable and probable cause : Barber v. Lesiter, 7 C. B. f}^y presump- ^ ' tiou 01 reason N. S. 175 ; Castriqne v. Behrens, 30 L. J. Q. B. 163; see able and pro- Met. Bank v. Pooleij, 10 App. Cas. 210 ; even though the ^'"^^^^^ c^^««- conviction be summary under a statute which gives no appeal; Basehe v. Matthews, L. Pv. 2 C. P. 684. Therefore in an action for malicious prosecution the declaration must show that the proceedings terminated in the plaintiff's favour ; and for the same reason an action will not lie for a conspiracy to make it appear that the plaintiff was guilt}^ of an offenqe, if he was subsequently convicted of the ofi'ence, and the conviction continues in force ; Barber v. Lesiter, supra. So, where the debtor against whom a writ had been issued had without appearing paid part of the claim, and judgment was nevertheless signed against him for the whole amount, it was held that until the judgment was set aside he could not maintain an action; Huffer v. Allen, L. R. 2 Ex. 15. And though it has been set aside, bad faith must still be shown ; Smith v. Sydney, L. R. 5 Q. B. 203, where the judgment was set aside, not for irregularity, but as a matter of favour. But the success of ex jyarte proceedings, wherein Distiuction the person proceeded against is not entitled to be heard in ^ediu^sci his own defence, e.g., to obtain sureties for the peace, does jjarte. not show that there was reasonable and probable cause for taking these proceedings ; Steward v. Grommett, 7 C. B. N. S. 191. The question whether or no there was reasonable and How far ques- probable cause is for the judge alone, but if the facts on ^°^ oiJ^^}- which that question depends are in dispute, the jmy must first find the facts; Pa]iton v.- Williams, 2 Q. B. 169; Douglas \. Corbett, 6 E. & B. 511 ; Hailes v. Marks, 7 H. & N. 66 ; Lister v. Ferryman, L. R. 4 H, L. 521 ; Brown v, Hawkes, (1891) 2 Q. B. 718. The burden of proving the facts from which the judge may infer want of reasonable and probable cause is upon the plaintiff"; Abrath v. N. E. R. Co., 11 Q. B. D. 440, 11 App. Cas. 247. It seems that on the question of malice the jury are not bound by the finding of the ASHBY V. WHITE ET ALIOS. judge as to reasonable and probable cause ; nor is tbe want of reasonable and probable cause conclusive evidence of malice, wbich must be inferred from all the facts ; Hicks v. Faulkner, 8 Q. B. D. 167, 174 ; see jjer Brett, M.R., Quartz Hill Co. V. Eyi'e, 11 Q. B. D. p. 687; Brown v. Hawkes, supra. In Johnson v. Emerson, L. R. 6 Ex. 329, an action for maliciousl}' and without reasonable and probable cause pro- curing the plaintiff to be adjudicated bankrupt, it appeared £?ad-?dS'' ^^^'^^ *^® plaintiff had been adjudicated bankrupt, and the catiou set aside adjudication confirmed by the Chief Judge, but afterwards on appeal. ^^^ ^^^.^1^ ^^ appeal. The court was equally divided in opinion as to whether, under the circumstances of the case, the action was maintainable. Martin, B., doubted whether, under the existing bankruptcy law, an action could be main- tained for procuring an adjudication, and Bramwell, B., laid it down that no action lies where the want of reasonable and probable cause is only error in law. Kelly, C.B., and Cleasby, B., who held that the action was maintainable, were of opinion that the fact that the court made the adjudication was only evidence that the defendant might have had reasonable and probable cause for believing that an act of bankruptcy had been committed, an inference which was negatived by other evidence. This latter opinion was approved in the C. A. in Quartz Hill Co. v. Eyre, 11 Q. B. D. 674, where it was held that an action was maintainable by a trading company against a person who had falsely and malicioush% and without reasonable and probable cause, presented a petition to wind it up. Privileged Another head of damnum absque injuria is furnished by statements. ^|^g immunity of certain privileged or confidential statements defamatory of thii-d persons, on the ground that they are made bond fide in the assertion of a right, or the perform- ance of a duty whether legal or moral ; Whitely v. Adams, 15 C. B. N. S. 392 ; Cowles v. Potts, 34 L. J. Q. B. 247 ; Dawkins v. Paulet, L. B. 5 Q. B. 94 ; Dawkins v. Rokeby, 8 Id. 255 ; Lau/ihton v. Sodor and Man, L. R. 4 P. C. 495 ; Grant v. Sec. of State for India, 2 C. P. D. 445 ; Waller v. Loch, 7 Q. B. D. 619 ; Allbutt v. Medical Council, 23 Id. 400 ; Stuart V. Bell, (1891) 2 Q. B. 341 ; Hunt v. G. N. R. Co., Id. 189 ; Andrews v. Nott Boicer, (1895) 1 Q. B. 888; Chatter- ton V. Sec. of State for India, 2 Id. 189 ; or that they are fair criticism on matter of pul)lic interest ; Camjybell v. Spottis- Koode, 32 L. J. (^ B. 185 ; Wason v. Walter, L. R. 4 Q, B. 73 ; ,S'. Jhtton Co. v. N. E. Netvs Ass., (1894) 1 Q. B. 133. In ASHBY V. WHITE ET ALIOS. 263 such cases, generally speaking, however harsh, hasty, or un- true may be the language employed, so long as it is honestly believed by tlie speaker or writer to be true, it does not furnish a legal grovuid of action ; see Todd v. Hawkins, 8 C. & P. 88, i)er ^ Alderson, B., Huntley v. Ward, 6 C. B. N. S. 514, per Willes, J. ; and the definition of privileged communications in Harrison v. BusJi, 5 E, & B. 344, 348 ; and provided he believes them to be true, it does not matter that he had no reasonable grounds for his belief; Clark v, Molyneux, 3 Q, B. D. 237. Nor, it seems, is it essential, if the occasion be privileged, that the writer or speaker believe the statement to be true, provided he make it without malice in fact, for it may be his duty to communicate statements which he him- self does not believe ; Id., j;er Bramwell, L.J. ; see Jenoure V. Dchnefie, (1891) A. C. 73. The extent and application of Instances ot this doctrine of privilege have given rise to mucli discussion ^"^^^ ^°^' and difference of opinion ; see CoxJiead v. RicJiards, 2 C. B. 569 ; Somerville v. Haivkins, 10 Id. 583 ; Taylor v. Hawkins, 16 Q. b! 308; Harris v. Thompson, 13 C. B. 333; Lawless V. Anglo-Egyptian Co., L. R. 4 Q. B. 202 ; Sj^ll v. Maule, L. R. 4 Ex. 232; and Davies v. Snead, L. E. 5 Q. B. 608, where a statement to one of two persons of a charge affect- ing both, and privileged as to the person to whom it was made, was held privileged also as to the other. In Tompson v. Dashwood, 11 Q. B. D. 43, a letter containing defamatory statements, written under circumstances of privilege to the person for whom the letter was intended, was, through negli- gence, sent to the wrong person. It was held not to be actionable without proof of express malice. But the C. A. disapproved of this decision in HehditcJi v. Macllicaine, (1894) 2 Q. B. 54, wdiere it was laid down that a communi- cation cannot be privileged unless the person to whom it is made has in fact some duty or interest in receiving it, and that no privilege arises merely from an honest and reason- able belief that the occasion is privileged. The publication, without malice, of a fair and accurate Reports of report of proceedings in public courts of law is privileged ; eeedines Leivis v. Levy, E. B. &. E. 537 ; Usill v. Hales, 3 C. P. D. 319 ; even if the proceedings are ex parte ; Kimher v. Press Association, (1893) 1 Q. B. 65 ; but though the report be fair and accurate, it is not privileged, if published with malice ; Stevens v. Sampson, 5 Ex. D. 53. It seems that the publication, without malice, of an accurate report of part only of the proceedings, e.g., of the judgment alone, is privileged ; 264 ASHBY r. WHITE ET ALIOS. Reports of public meet ings. c. 64. see Macdougall v. Knight (No. 2), 25 Q. B. D. 1, where M. V. K. {No. i), 17 Id. 636, 14 App. Cas. 194, was considered. Newspaper reports, if contemporaneous, have a statutory privi- lege under the Law of Libel Amendment Act, 1888, s. 3. The publication of a copy of a register of judgments, kept in pursuance of a statute, which the public are entitled to inspect, is privileged ; Searles v. Scarlett, (1892) 2 Q. B. 56 ; Ofpaiiiament. Williams V. Smith, 22 Q. B. D. 134. Reports of proceedings in parliament, and fair comments thereon, stand on the same footing as reports of proceedings in law courts ; see Wason V. Walter, L. E. 4 Q. B. 73. Reports made to the editor of a newspaper and published by him, of statements charging specific acts of misconduct against a public man, are not privileged ; Davis v. ShejJstone , 11 App. Cas. 187. No privilege exists at common law for reports of ex parte charges against an individual made at a public meeting ; Davison \. Duncan, 7 E. & B. 229; or at a meeting of a vestry ; Popham v. Pickhurn, 7 H. & N. 891 ; or of a board of guardians ; Pvrcell v, Sowler, 2 C. P. D. 215. 51 & 52 Vict, But under the Law of Libel Amendment Act, 1888, s. 3, jjrivilege is now conferred upon fair and accurate news- paper reports, if published without malice, of proceedings at public meetings (as therein defined), or (except where neither the public nor any newspaper reporter is admitted) at meetings of vestries, town councils, school boards, boards of guardians, statutory boards and local authorities, or committees of such bodies, or at meetings of commissioners acting under lawful warrant or authority, select parliamen- tary committees, or justices of the peace in quarter sessions for administrative or deliberative j^urposes ; and also upon publications, at request of a government office or depart- ment, officer of state, commissioner of police, or chief constable, of a notice or report issued for the information of the public ; provided that the matter published is not blasphemous or indecent, and that it is of public concern and for the benefit of tlie public, and that, in the case of newspapers, tlie defendant has not refused to publish a reasonable letter or statement by way of contradiction or explanation of the matter complained of. "Words pertinent to the matter in issue, and spoken by counsel, or by an attorney acting as advocate, in the course of ajudiciiil i)roceeding, are privileged; Mackay v. Ford, 5 H. & N. 792 ; Kane v. Mulvany, 2 Ir. R. C. L. 402 ; and Counsel. ASHBY l\ WHITE ET ALIOS. 265 SO they are if spoken with reference to and in the course of a judicial inquiry, altliough irrelevant and malicious ; Munster v. Lamb, 11 Q. B. D. 588, overruling the opinion of Lord Denman, in Kcndillon v. Malthrj, Car. & M. 402. In Pedley v. Morris, 61 L. J. Q. B. 21, the same rule was applied to statements made by a solicitor in written objec- tions to taxation; and in Lillcy v. lloneij, 61 L. J. Q. B. 727, to the charges made against a solicitor in a complaint to the Incorporated Law Society under the Solicitors Act, 1888. Words spoken by an}' judge, wdiile acting in his judicial Judge. capacit}'', are privileged, even if spoken maliciously ; Miller V. Hope, 2 Shaw, App. Cas. 125 ; Thomas v. Churton, 2 B. & S. 475; Scott v. Stansfield, L. R. 3 Ex. 220; Anderson v. Gorrie, (1895) 1 Q. B. 668. An action will not lie against Witness. a witness merely for defamation, or for perjury, either in giving his evidence, or in an affidavit in a cause ; Revis v. Smith, 18 C. B. 126 ; Henderson v. Broomhead, 4 H. & N. 569. But such perjury may go to make up a liability ; as in Fitzjohn v. Mackindcr, 9 C. B. N. S. 505, where in a county court the defendant's perjury and forger}', and the plaintiff's unsatisfactory manner, led the judge to com- mit the latter for perjur}', and to bind over the defendant to prosecute ; and an indictment having accordingly been preferred b}' the defendant, he was, on the plaintiff's acquittal, held liable to an action b,y the latter for mali- cious prosecution ; see Farley v. Daitks, 4 E. & B. 493, where the defendant was held liable for having falsely, &c., caused the plaintiff' to be adjudged bankrupt, by false depositions which, even if true, would not have supported the adjudication ; and see Jolnisoji v. Emerson, supra, p. 262. Jxi Seaman \. NetJierelift, 1 C. P. D. 540, 2 Id. 53, which was an action of slander for words spoken by a witness, the jury found that the words were spoken by him maliciously, and as a volunteer for his own purposes. The court held that since the w^ords were spoken by the witness in the course of giving, and as part of, his evidence, no question should have been left to the jmy, and that the action would not lie. The privilege extends to witnesses giving evidence before a par- liamentary committee; Goffin v. Donnellij, 6 Q. B. D. 307. A letter addressed to the I'rivy Council complaining of the character of a public officer removable by them, is action- able if express malice be proved ; Proctor v. Webster, 16 Q. B.D.I 12. Words spoken by a member of parliament Paiiiameut. in parliament are absolutely privileged; Pi. v. Abingdon, 260 ASHBY V. WHITE ET ALIOS. Damage arising from acts of self- defence against com- mon enemy. Seduction without loss of service. 1 Esp. 228 ; Dillon v. Balfour, 20 L. R. Ir. GOO ; see Bradlaufjh v. Gossctt, 12 Q. B. D. 271. Words spoken at meetings of public bodies, like county councils, are privileged, if spoken hond fide, in the belief that they are true ; but not so, if spoken maliciously ; Royal Aquarium v. Parkinson, (1892) 1 Q. B. 431 ; see Pittard v. Oliver, (1891) 1 Q. B. 474. Acts done b}' way of self-defence against a common enem}^ such as the erection of banks to prevent inroads of the sea, may cause damnum absque injuria, and damage resulting therefrom is not actionable ; II. v. PagJiam, 8 B. & C. 355 ; Scott V. Sluyherd, 2 W. Bl. 892, set forth j^ost ; Nield v. L. d N. W. B. Co., L. B. 10 Ex. 4 ; and conversely there is no common law duty on a frontager to prevent the sea-water from getting over his wall on to his neighbour's land, and he is not liable to his neighbour for neglect to top his wall, whereby his neighbour's land is flooded ; Hudson v. Tabor, 2 Q. B. D. 290. But it is otherwise where he has interfered with the level of his own frontage and thereby allowed the water to get through on to his neighbour's land ; Nitro- Phosphate Co. v. L. c(; St. K. Docks, 9 Ch. D. 503. In that case there was a statutory dut}' to maintain the wall at a certain height, but the C. A. rested their judgment on the common law obligation also, an obligation which Romilly, M.R., seems to have regarded as existing in Morland v. Cook, 6 Eq. 252, 262, 267. In A.-G. v. Tomline, 12 Ch. D. 214, 14 Id. 58, the owner of the foreshore Avas restrained by injunction from removing shingle, forming a natural defence against the sea, and thereby exposing the plaintiff's land to its inroads ; see West Norfolk Manure Co. v. Arch- dale, 16 Q. B. D. 754, 758. Instances might be multiplied in which wrongs the most grievous are without legal redress. The seduction of a daughter not in her father's service, actual or constructive ; Blaymire Y. llalcji, 6 M. & W. 55; Davies v. Williams, 10 Q. i?. 725 ; Manlcij v. Field, 7 C. B. N. S. 96 ; Thompson v. Boss, 5 H. & N. 16 ; Bist v. Faux, 4 B. & S. 409 ; even though the father be thereby forced to maintain her ; Grin- nell V. Wells, 7 M. & Gr. 1033 ; and the seduction of a daughter in her father's service, unless an actual loss of service accrue; Eager v. Grimicood, 1 Exch. 61 ; Hedges v. Tagg,J^. R. 7 Ex. 283; are damna abs(iue injuria. But where a loss of service has accrued from tlu^ defendant's act, a riglit lu tlie daugbter's services at the time of the seduction, ASHBY V. WHITE ET ALIOS. 267 tliougli none were then being actually rendered, is sufficient to enable the father to sue ; Terry v. Hutchinson, L. R. 3 Q. B. 599. Before Lord Campbell's Act, no action at law was main- Injuries tainable against a person who, by his wrongful act, neglect, death before or default, had caused the death of another, thougli under Lord Camp- . . . bell s Act 9 & circumstances which would have given the sufferer a right lo vict. c. 93. of action had he survived ; and the husband, wife, parent, or children of the deceased were without remedy against the wrong-doer, by whom they had been deprived of comfort and support. And such is still the law in cases not provided for by the Act : see Oshnrn v. GUlctt, L. li. 8 Ex. 88, where, to an action brought by a master for injury done to his servant \>y the negligent driving of the defendant's servant, a plea that the plaintifl's servant was killed on the spot was held {diss. Bramwell, B.) to be a good answer. And that Act itself only gives compensation for the pecuniary damage sustained; Blake v. ]\Iid. II. Co., 18 Q. B. 93; CJiapman v. liotJiwell, E. B. & E. 168; Diickwortlt. v. JoJni- son, 4 H. & N. 653 ; including the loss of such pecuniar}^ advantage as might reasonably have been expected to be derived from the person killed, if he had continued alive; Pi/m V. G. N. E. Co., 4 B. & S. 396 ; Franklin v. S. E. R. Co.,d H. & N. 211 ; but not funeral expenses (unless, perhaps, where there was a legal duty on the plaintiff to bury, 2>t'r Bramwell, B., Oshorn v. GUlctt, L. R. 8 Ex. 88) nor mourn- ing; Dalton v. S. E. K. Co., 4 C. B. N. S. 296. It has been held that where death has resulted from breach of contract to carry safely, and damage to the personal estate has been caused thereby, the executors may maintain an action ; Bradshaw v. L. d- Y. R. Co., L. R. 10 C. P. 189. That decision was questioned in Ler/gott v. G. X. R. Co., 1 Q. B. D. 599 ; see Pullinfi v. G. E. R. Co., 9 Id. 110 ; but it was approved in Daly v. Dnhlin R. Co., 30 L. R. Ir. 514. The case of the school set up near anotJier school. Competition reported H. 11 H. 4, fol. 47, pi. 21, is one of the earliest on traders. the subject of damage without legal cause of action, and possesses much interest. It is well established that a trader has no right of action for loss caused merely by the compe- tition, however keen, of rival traders ; see Mogul Co. v. McGregor, (1892) A. C. 25; and Hopkins v. G. N. R. Co., 2 Q. B. D. 224, where the owner of a ferry, who was damaged by the opening of a bridge, was lield to have no cause of action. 268 ASHBY V. WHITE ET ALIOS. Other iustances. Offensive trades. New-comer Ijuildiug near them. Other instances are mentioned in Com. Dig., Actions vjwn the case (B), and Actions upon the case for a nuisance (C), in which serious damages have been held not actionable, as being either not temporal injuries, or only such as must be expected to result from the reasonable exercise of legal rights. If a man establish an offensive trade near my dwelling- house, so as to sensibly or materially diminish its value, or the comfort and enjoyment of it, I ma}" maintain an action on the case against him for a nuisance, for here is clamnum coujded with ivjnrid, even though the trade be a benefit to the public ; Bamford v. Turnleif, 3 B. & S. 66, over-ruling Hole V. Barlow, 4 C. B. N. S. 334 (but see Wanstead L. B. V. Hill, 13 C. B. N. S. 479); Stockport Co. v. Potter, 7 H. & N. 160; TijJinng v. St. Helen's Co., 4 B. & S. 608, 11 H. L. C. 642; A.-G. v. Manchester, (1893) 2 Ch. 87; the fact that my neighbour's trade by its unsightliness destroys the mere beauties and amenities of my grounds gives me no cause of action ; see jjer James, L.J., Salvi7i v. N. Brancepeth Co., 9 Ch. 705, 710; and "a man who carries on an exceptionally delicate trade cannot comjjlain because it is injured by his neighbour doing something lawful on his property, if it is something which would not injure anything but an exceptionally delicate trade; " Robin- son V. Kilvert, 41 Ch. D, 88, 97 ; the law does not take notice of "any sentimental, speculative, trivial discomfort or personal annoyance ; " see 2^er Lord Selborne, Fleming v. Hislop, 11 App. Cas. 686, 690. But if I build my house near his premises, at all events if they have been so used for twenty years, the case is altered; and, although I have damnum, yet I shall maintain no action, since it is not coupled with what the law considers injuria. Such, too, it was once thought, might be the law, even if the new-comer had built within the twenty years, since otherwise a man setting up an offensive trade even in the remotest spot might be ruined by the first person who chose to come and dwell near him within twenty j'ears. In Bliss v. H(dl, 4 B. N. C. 183, some expressions, however, dropped from the court from which it ma}'^ be thought that their lordships' opinion was tliat nothing but a twenty years' user will entitle a man to carry on an offensive trade without interruption. The point was iiot, however, necessary for the decision of that case or that of Elliotson v. Feethnm, 2 B. N. C. 134, on the authority of which it was decided. ASHEY V. WHITE ET ALIOS. 269 In those cases, to an action for a nuisance to plaintiff's (Iwelling-liouse, a plea that the noisome trade was established before the plaintiff became iiossessed of the dwelling-Jtouse, was held bad ; non constat, however, what would have been the decision had the plea alleged that the defendant carried on the trade there before the buildinf/ of the plaintiff's house ; see Flight v. Thomas, 10 A. & E. 590. It seems clear, however, that the date of the building of the plaintiff's house could only be material as tending to show at what point of time it became possible for an occupier to be inconvenienced by the nuisance so as to put him in a position either to com- plain or to acquiesce, and that no right could be acquired against him except from the imj^lication of acquiescence during the period necessary to establish a prescription either at Common Law or under the Prescription Act ; see Sturges v. Bridgman, 11 Ch. D. 852. In Fleming v. Hislop, 11 App. Cas. 686, 697, Lord Halsbury said : " It is clear that w^iether the man went to the nuisance or the nuisance came to the man, the rights are the same." It is pointed out in the judgment of the C. A. in Sturges v. Bridgman, stijira, that the hardship which might result from a rigid application of the above principle, whereby it would be possible for a new-comer erecting a dwelling-house in a neighbourhood devoted to trades of a noisy or unsavoury character, to stop them altogether, is modified by the fact that the question, whether a particular trade gives rise to an actionable nuisance, must be decided by reference to the circumstances of the locality where it is carried on, and that what might be a nuisance in Belgrave Square might not be considered to be one in Bermondsey. On the same principle — viz., that damage, to sustain an Support b}' action, must be coupled with injury — if A. build a house on adjoining the edge of his land, and the i^roprietor of the adjoining land, after twenty years, dig so near that it fall dou'n, an action on the case lies, because the plaintiff has, by twenty years' use, acquired a prescriptive right to the support, and to infringe that right is an injury; Stansell v. Jollard, Selw. N. P., 10th ed., 435 ; see Harris v. Rijdnig, 5 M. k W. 60 ; Hide V. Tliornborough, 2 C. k. K. 250 ; Brown v. Robins, 4 H. & N. 186 ; Bonomi v. Backhouse, E. B. &E. 622, 6-i6, 34 L. J. Q. B. 181 ; and Bouhntham v. Wilson, 8 H. L. C. 348 ; and if, !;fter its erection, the house be altered, so that in its altered state it needs greater lateral support, a riglit to such support may be acquired for it by twenty years' 270 ASHBY V. WHITE ET ALIOS. Newly-built house. Where no notice of nature of property inj Lired. Right against sti'anger. Common law right to have soil itself supported by adjoining land. Damage to house conse- quent upon Hubsidenco of soil. Smilh V. T/uickerah. enjoyment of it in its changed condition, provided the alteration be made without concealment ; Dalton v. Angus, 6 App. Cas. 740, affirming the decision of the C. A., and the judgment of Lush, J., who dissented in the court below. It is otherwise, however, if the owner of land adjoining a newly-built house dig in a similar manner and produce similar results, for, there, though there is damage, yet, as there is no right to support, there is no injury committed by with- drawing it, and therefore no action is maintainable ; Part- ridge V. Scott, 3 M. & W. 220 ; Wyatt v. Harrison, 3 B. & Ad. 871. But there is some authority for saying that the person digging must not do so negligently, otherwise, he is liable to action ; see Doddy. Holme, 1 A. & E. 493 ; Grocers' Co. V. Donne, 3 B. N. C. 34 ; Troiver v. Chadwick, Id. 334, 6 Id. 1 ; Davis v. L. d- Blackivall R. Co., 1 M. & Gr. 799 ; Bradhee v. London, 4 Id. 714 ; see, however, Gale on Easements, p. 250 et seq. ; 2 Wms. Saunders, ed. 1871, p. 802 ct seq. ; Jeffries v. Williams, 5 Exch. 792 ; Gayford V. Nicholls, 9 Id. 702. It is settled by Chadwick v. Troiver, 6 B. N. C. 1, that even supposing that an action lies for mere omission to take care, while pulling down one's own property, that a neigh- bour's property be not injured, still the duty to take such care does not extend to cases where the defendant is not shown to have had notice of the existence or nature of the property injured, as where it was a vault. And whatever be the rights of the owner of the adjoining land who digs near a newly-built house, it is clear that a mere stranger has none, and is liable for damage occasioned by so doing ; Jeffries v. Williams, supra ; Bihhy v. Carter, 4 H. & N. 153. And as there is a common law right to have the soil in its natural unencumbered state left un- damaged by the withdrawal of lateral support, the owner of a newly-built house may maintain an action for damage done by the withdrawal (however carefully) of such support, provided that the weight of the house itself did not occasion or contribute to the subsidence, and the damage to the house may be recovered as consequential upon the original injury ; Brown v. Robins, 4 H. & N. 186 ; Ilamery. Knowles, G Id. 454; Berkley v. Shafto, 15 C. B. N. S. 79. In Smith v. Thackcrah, the court seem at first sight from the report, L. K. 1 C. P. 564, to have decided that the damage arising from the subsidence of the soil itself must be more than ASHBY V. WHITE ET ALIOS. 271 nominal in order to constitute such an injury as can be made the foundation of an action for the consequential damages resulting therefrom. In that case the defendant by excavations in his own hind caused the plaintiff's soil to subside, whereby a building erected thereon within twenty- years was damaged. The jury found that the plaintiff's land would have sunk if there had been no building on it, but that the plaintiff would have suffered no aj)preciable damage, and it was held that the plaintiff had no cause of action. In the report, however, of this case in 35 L. J. C. P. 276, it does not clearly appear that the building did not contribute to the subsidence (see argument of defendant's counsel and judgment of Byles, J.) ; and the finding of the jury that had the building not been there the plaintiff' would have suffered no appreciable damage was perhaps equivalent to a finding that the subsidence which would have taken place had the building not been there would have been inappr^eciable, and that the weight of the buildings con- tributed to the subsidence which actually took place — in which case no appreciable damage, actual or consequential, resulted from an invasion of any right of the plaintiff, and the action was clearly not maintainable. Unless such be the true 7'atio decidendi, the decision appears to conflict as well with principle as with the cases of Broum v. Robins and Hamer y. Kiioicles, supra, in neither of which does it appear that but for the existence of the buildings the pecu- niary damage by the mere subsidence of the soil would have been more than nominal. No doubt in order to prove that a right has been invaded it is necessary to show that an actual sensible subsidence of the natural soil has taken place through the defendant's act, but if this be established and further damage consequent thereon be incurred, surely the latter may be recovered even though the damage by the mere letting down of the unencumbered soil were incapable of pecuniary assessment. Indeed, in most cases, the pecuniary damage occasioned by the sinking of the unen- cumbered soil itself must be merely nominal, but when two things have concurred — viz., the invasion of a right and damage consequent thereon, the courts have held that such damage is recoverable by action. See the observations of Bowen, L.J., in Mitchellv. Darley Main Co., 14 Q. B. D. 125, 137, which seem to support the view of Sniitli v. Thackerah, stated above, and also the observations of Collins, J., in A.-G. V. Conduit Co., (1895) 1 Q. B., 301, 313, where he ASHBY l\ WHITE ET ALIOS. Thistle-seeds. said that "it is the subsidence, and not the pecuniary loss, which grounds the cause of action." In Mitchell v. Darley Main Co., it was hekl by the H. L. (Lord Blackburn diss.), affirming the decision of the C. A., and overruling Lamb v. Walker, 3 Q. B. D. 389, that where the surface has sub- sided by reason of excavations, and a cause of action has accrued to the owner of the surface which has been satisfied by damages, he may nevertheless maintain an action for a second subsidence consequent upon the original excava- tion ; 11 App. Cas. 127. As to the right of a purchaser who has bought land for the purpose, known to his vendor, of erecting buildings thereon, to restrain by injunction his vendor from suffering excavations to be made in his own land, which would pro- bably result in letting down the land sold, and the buildings about to be erected thereon, although no covenant against such excavation has been taken by the purchaser, and no damage has actually occurred, see Siddons v. Short, 2 C. P. D. 572, a case which so far at least as regards the protection claimed for the added weight of the buildings appears open to further consideration. The right of a man to dig in his own land is not qualified by the fact that the land intervening between his and that of another owner has been excavated, and he is not respon- sible if, by so doing, he causes the land of another to fall in, if it would not have fallen in but for the intervening excava- tion ; Birmingham v. Allen, 6 Ch. D. 284. As to the right to have one house supported by another, see Solomon v. Vintners' Co., 4 H. & N. 586 ; Lemaitre v. Davis, 19 Ch. D. 281 ; and where a row of houses originally belonged to the same owner, Richards v. Rose, 9 Exch. 218. If a man's land is damaged by the seeds of thistles blown from his neighbour's land, he has no cause of action ; Giles v. Walker, 24 Q. B. D. 656 ; nor if his animals are injured by eating yew trees which are growing on his neighbour's land and not projecting over his land; Pontine v. Noakes, (1894) 2 Q. B. 281. The maxim which governs such cases is sic vtere tuo itt aliennm non kedas. Therefore A. may be sued for so negligently erecting a hayrick on the edge of his land that it ignites and burns his neighbour's house ; Vatu/han v. iifeijZow, 3 B. N. C. 468; notwithstanding 6 Anne, c. 31, and 14 Geo. 3, c. 78, which do not, it seems, ai)ply to fires traceable to negligence ; see j;rr Lord livndhurst in ASHBY V. WHITE ET ALIOS. 27.5 Cantcrhurij v. A.-G., 1 Phillips, 306; and Fillifer v. Phippard, 11 Q, B, 347, where the subject of iiMbility for damage by fire was discussed. Tlie other cases, formerly referred to in this part of the note, are now discussed in the note to Fletcher v. Rijlanih, post. Very similar to the case of a nmn digging on the extremity Undenound of his own land is that of one digging on his own close, so water, as to divert the underground stream, or drain the well, of a neighbour. This, in the absence of some sj^ecial right to such stream or well, is damnum absque injuria; Acton v. Blundell, 1'2 M. & W. 324; sec Dickinson v. Grand Junction Canal Co., 7 Exch. 282 ; Neu- Hirer Co. v. Johnson, 6 Jur. N. S. 374 ; Eaustron v. Taylor, 11 Exch. 369 ; Broadhcnt v. Bamshotham, Id. 602; Chasemore v. liiehards, 7 H. L. C. 349 ; Hodgkinson v. Ennor, 4 B. & S. 229 ; and Bradford v. Pickles, (1895) 1 Ch. 145. And if a subsidence be caused by the withdrawal of such undergTound water, the same rule holds good ; Popplewell v. Hodgkinson, L. R. 4 Ex. 249 ; cf. Corhett V. Hill, 39 L. J. Ch. 547. The mode of determining whether or no damage has General rule been occasioned by what the law esteems an injuru, is to ^'''^'^ where • 1 7 j7 ' • 7 , • ,• • ,7 7 ■ . 1 -, riV^i infringed consider u-lietner any riglit existing in the party damnified has dpmaf^e pre- been infringed upon ; for if so, the infringement tliereof is an i*""ied. injury : and if an injury be shown, the law will presume that some damage resulted from it ; see Barker v. Green, 2 Biug. 317; Sampson v. Hoddinott, 1 C. B. N. S. 590. Thus an action is maintainable against one who makes a projection over the land of another before any rain falls so as to cause damage ; Fay v. Prentice, 1 C. B. 828. To use Lord Holt's words in the principal case, p. 252 : — " Every injury to a right imports a damage in the nature of it, though there be no pecuniar}' loss." For instance, before the abolition of imprisonment for debt, a creditor who was ascertained to be such by a judg- ment, and had charged his debtor in execution, had a right to the bod}' of his debtor every hour till the debt was paid ; per Buller, J., 5 T. E. 40. He had a right to have the body in gaol, and the escape of a debtor for ever so short a time was necessarily a damage to him, and an action for an escape lay ; jjer Parke, B., 4 M. ^- W. 153; Clifton v. Hooper, 6 Q. B. 468. But where a defendant was in custody on mesne Cases where process and after the return of the writ by which he was ''^'^'^"'^^ °^ . . . , / 7 7 r damage captured the plaintiff's right was "to have the defendant in destroys right custody ivhenever he chooses to remove or declare against him;" °' ^ctiou. S.L.C. — VOL. I. 18 274 ASHBY V. WHITE £T ALIOS. Depends on nature of right itself. Grievance to community as well as to in- flividual not actionable. Unless ])aiti- cular ilaniagi; to individual. and, therefore, althovigli an escape which dehiyed the execu- tion of a habeas corpus or the dehvery of a declaration woukl have been actionable, yet an escape involving neither of those consequences was not so; Williams v. JMostyii, 4 M. & W. 145 ; Planck v. Anderson, 5 T. R. 37. Upon the same princij^le an action will not lie against the sheriff for a false return to a writ of execution, if the plaintiff has not suffered actual damage in consequence of the false return ; Wylie v. Birch, 4 Q. B. 566 ; Lery\. Hale, 29 L. J. C. P. 127 ; Hohson v. Thellnson, L. R. 2 Q. B. 642 ; Stimson v. Farnham, 7 Id. 175. So, if a landlord distrain for more rent than is due, an action does not lie against him if the goods he take be of less value than the rent actually due; Leyland v. Tancred, 16 Q. B. 664; Glynn v. lliomas, 11 Exch. 870 ; Fretich v. Phillips, 1 H. & N. 564. The distinction is really in the nature of the right itself. If the right be absolute, its infringement implies damage ; but if it be merely a qualified right, as, for instance, to have one's land left undamaged by the withdrawal of lateral support, actual damage is necessary to complete the cause of action. So, in the cases above cited, the plaintiff's rights, as against the sheriff and the landlord, were merely qualified rights to be saved from pecuniar}^ loss by their acts, and as a necessary consequence actual damage was held essential to the cause of action. See also the notes to Mellor v. Spateman, 1 Wms. Saund. 346 a. There are, indeed, certain cases in which an act may be in law an injury, and may produce damage to an individual, and vet in which the law affords no remedy, or, at least, no immediate one. These are cases in which the act done is a grievance to the entire community, no one of Avhom is injured by it more than another. In such a case the mode of punishing the wrong- doer is b}'^ indictment, and by indict- ment only ; 1 Inst. 56 a ; see Eickct v. Metropolitan R. Co., 5 B. & S. 149, L. R. 2 H. L. 175 ; Wintcrhottom v. Derby, L. R. 2 Ex. 316. Still, if any person have sustained a particular damage therefrom, beyond that of his fellow- citi/ens, he may maintain an action in respect of that par- ticular damnification. Thus, to use the familiar instance put by the text-writers, if A. dig a trench across the high- way, this is the subject of an indictment; but if B. falls into it, then the particular damage thus sustained by him will sui)port an action. See also Lyon v. Fishmongers' Co., 1 App. Cas. 662 ; Fritz v. Hohson, 14 Ch. D. 542. ASIIBY r. WHITE KT ALIOS. 275 Still this exception is subject to qualification, for the Contributory damage must not be occasioned by want of ordinary skill "^° lot'^ce. and care on the part of the plaintiii'; Butterfidd \. Forrester, 11 East, GO; and the like rule applies to all cases where the cause of action is negligence ; Flower v. Adam, 2 Taunt. 314 ; Bridge v. Grand Jimctlon R. Co., 3 M. & W. 244 ; Hawkins V. Cooper, 8 C. ci:. P. 473 ; Coles v. Bank of England, 10 A. & E. 437 ; Marriott v. Stanley, 1 M. & Gr. 568. In Caswell V. Worth, 5 E. & B. 849, the defendants were bound by statute to keep their machinery fenced, but omitted so to do, and yet they were held not to be liable to the plaintiff for an injury which he received from the machinery by setting it in motion, contrary to their orders, and with knowledge that it could not be used with safety. Contra, where he w^as guilty of no misconduct, though he knew of the danger ; Holmes v. Clarke, 6 H. & N. 349 ; cf. Watling V. Oastler, L. R. 6 Ex. 73 ; Britton v. Great Western Cotton Co., 7 Id. 130; Woodleg v. Metr. District E. Co., 2 Ex. D. 384. However, where a man carelessly left his cart and horse Lj/nch v. unattended in the street, and a young child climbed into it -'^"'■'^^"• and had a severe fall, the horse being led forward by a boy, the owner was held responsible in this case, seeming!}' on the ground that, having thrown temptation in the child's way, he could not be allowed to object that it had yielded to it; Liinch v. Nurdin, 1 Q. B. 29; but see, as to that case, Lygo V. Newhold, 9 Exch. 302 ; Singleton v. E. Counties E. Co., 7 C. B. U. S. 287 ; Mangan v. Athcrton, 35 L. J. Ex. 161 (a case which was observed upon in Clark v. Chambers, 3 Q. B. D. 327) ; and Abbott v. Macfie, 2 H. & C. 744. The rule is not that any negligence on the plaintiff's part What is will preclude him from recovering ; but that, thou^'h there c^ntiibutoiy iief'li"'eiiCG. has been negligence on the plaintiff's jjart, still he may recover, unless he could by ordinary care have avoided the consequence of the defendant's negligence. Therefore, a man who had improperly left an ass fettered on the highway was nevertheless held entitled to recover against one who negligently drove against it; DaviesY. Mann, 10 M. ^'v: W. 546 ; and the owner of a barge which was negligently run into by a steamer in the Thames was held entitled to recover against the pilot of the steamer, who might easily have avoided her, although (contrary to 17 & 18 Vict. c. 104, s. 296) the helm of the barge was not ported on the approach of the steamer, and nobody on the barge was 18 2 276 ASHBY V. WHITE ET ALTOS. Contributory nei'liarence. keeping a look-out; Tuff-^. Warman, 2 C. B. N. S. 740; 5 Id. 573. " In some cases," said Lord Campbell, in Dowell V. General Steam Navigation Co., 5 E. & 1>. 195, "there may have been negligence on the part of the plaintiff, re- motely connected with the accident ; and in those cases the question arises whether the defendant, by the exercise of ordinary care and skill, might have avoided the accident, notwithstanding the negligence of the plaintitf, as in the often quoted donkey case, Davies v. Mann. There, although without the negligence of the plaintitf the accident could not have happened, the negligence is not supposed to have contributed to the accident, within the rule upon this subject: and if the accident might have been avoided by the exer- cise of ordinary care and skill on the part of the defendant, to his gross negligence it is entirely ascribed, he, and he only, proximately causing the loss; " see Netherlands Steam- boat Co. V. Styles, 9 Moo. P. C. 286 ; Smith v. Dobson, 3 M. 6 Gr. 59 ; and Colchester v. Brooke, 7 Q. B. 339, where ovsters were placed in the channel of a public navigable river so as to create a public nuisance, yet a person navi- gating the river was held not justified in running his vessel against them, when he had room to pass without so doing (queere as to the effect upon this case of the judgments in G. 561. The above stated rule, however, does not api)ly to actions brought against persons other than the person guilty of the felony; White t. Spettigiie, 13 M. .^ AV. 603; Lee v. Bayes, 18 C. B. 599 ; or brouglit by persons other than the person against whom the felony was conmiitted ; Oshorn v. Gilleft, L, E. 8 Ex.88; Appleby \. Franklin, 17 Q. B. D. 93; Exp. ?!^0 ASHBY V. WHITE ET ALIOS. Ball, supra. And Lord Campbell's Act, while it recognises the general rule, expressly enacts that it shall not apply to actions brought pursuant to its provisions; see Oshornv. Gillett, supra. See also Com. D\^. Actum on the Case (B. 5). Damage Again, there are some cases in which a damage is sustained by one man in consequence of the act of another, which act would be considered tortious by the law if the damage in- curred could be properly deduced from it ; but which, never- theless, is dispunishable, because the damage actually in- curred is, to use the legal phrase, too remote to be the subject-matter of an action ; in other words, because it is not the natural consequence of the act committed by the defendant. Thus, if the plaintiff is made ill and put to medical expense by the defendant's slander of him by words not actionable ^e?' se, that is not sufficient special damage to support an action for the slander; Allsop v. Allsop, 5 H. & N. 534 ; Weldon v. De Bathe, 54 L. J. Q. B. 113 ; see also Richardson v. Dunn, 8 C. B. N. S. 655 ; Parkinson v. Scott, 1 H. & C. 153; Chamberlain v. Boi/d, 11 Q. B. D. 407 ; Com. Dig. Action on case for Defamation ; and Kelly v. Part- ington, 5 B. & Ad. 645. Wheredamagu js^^i^ it has been thought that damage must always be or improiiT'i- considered too remote when it proceeds from the illegal act of third r^^i of a third person, for that the law will not esteem it natural that an illegal act should be induced by an}' consideration. Thus, if A. falsel_y assert that B. has spoken in disparagement of C, in consequence of which C. ceased to befriend and invite B., an action would be maintainable ; see Moore v. Meagher, 1 Taunt. 39 ; Daries v. Solomon, L. K. 7 Q. B. 112; but if C. were in consequence to beat B., no action could be maintained by him against A. on account of the damage sustained from the beating. So in Vicars v. Wilcocks, 8 East, 1, where the defendant accused the plaintiff of unlawfully cutting his (the defendant's) cord, in consequence of which 0. dismissed the plaintiff from his service before the expiration of his year, Lord Lllenborough said, " the special damage must be the legal and natural consequence of the words spoken ; and here it was an illegal consequence, a mere wrongful act of tlie master, for which the defendant was no more answerable than if, in consequence of the words, other persons had seized the plaintiff and tlirown him into a horsepond for his supposed transgression ; " see Morris v. Langdale, 2 B. ifc 1'. 284; Knight v. Gibhs, 1 A. & E. 43; Ashley v. Harrison, ASHBY V. WHITE ET ALIOS. 281 1 Esp. 48 ; Ward v. Weeks, 7 Bing. 211 ; Dixon v. Smith, 5 H. & N. 540 ; Parkinson v. Scott, 1 H. & C. 153 ; Schol- ficld V. Londeshorough, (1895) 1 Q. B. 536. This doctrine, however, has been questioned; see Green v. Button, 2 C. M. 6 R. 707 ; Kcndillon v. Malthy, 1 Car. & M. 402 ; Haddon V. Lott, 15 C. B. 411 ; Sedgwick on Damages, 66; 1 Stark, on Libel, 205 ; and notes to Vicars v. JJ^ilcocks, post, vol. ii. This note would not be complete without a reference to LmnlajwCyi. the case oiLumley v. Gye, 2 E. & B. 21(5, where the majority of the Queen's Bench (Coleridge, J., diss.) held that an action lies for maliciously causing and procuring one of two contracting parties not to perform the contract, whereby loss- accrues to the other. This case, not having been one of master and servant, was of the first impression, and inas- much as b}' reason of the defendant having obtained a verdict it became unnecessary to take the opinion of a Court of Error, there seemed room for further discussion. See the very learned judgment of Coleridge, eJ., as to the origin of the action for seducing servants from their duty. The point was, however, decided by Bowen v. Hall, 6 Q. B. I). 333, which {diss. Lord Coleridge) affirmed the decision of the majority in iMmleij v. Gye ; see also Temperton v. Russell, (1893) 1 Q."^ B. 715 ; I' hod v. Jackson, (1895) 2 Q. B. 21. The decision in Ashhy v. White, occasioned one of the Dispute be- most furious controversies between the Houses of Lords and and Commons, Commons of which there is any example in English history. A full account, setting forth at large the parliamentary docu- ments respecting it, will be found in the notes to Gale's edition of Lord Raymond, pp. 597 to 608. It arose from an idea entertained by the Commons that the attempt to bring a case involving the right to the elective franchise before a court of law, was a breach of the privileges of their house ; and they proceeded so far as to order the arrest of Mead (Ashby's attorney), and the committal of the plaintiffs m several similar actions to Newgate. Paty, one of these plain- tiffs, sued out a haheas corpus to the keeper of Newgate, who returned the Speaker's warrant of commitment. On argument upon this return, Powell, Powys, and Could, JJ.,held, against the opinion of Lord Holt, that they had no authority to dis- charge the prisoner; 11. v. Paty, 2 I^d. Raym. 1105. On this decision Pat}' applied for a writ of error, and the judges being summoned to deliver their oi)inion, whether a writ of error was a writ of right or of grace, ten of them held that it was of right, except in treason and felony : 2 Salk. 504. The parliament M-as, however, ]U'oroo"uod b^foro the writs ^o2 ASHBY V. WHITE ET ALIOS. were issued, but not before tbe House of Commons, who appear to have been actuated b}' great indignation, had committed Cffisar, the ciu'sitor, for neglecting to inform them what writs of error were applied for, and had also directed the Serjeant-at-Arms to arrest Montague, Denton, Page, and Lechmere (afterwards Attorney- General), who had been counsel for the prisoners on the return of the habeas corpus. Montague and Denton were accordingly arrested, and the Serjeant-at-Arms informed the House " that he had also like to have taken Mr. Nicholas Lechmere, but that he got out of his chamber in the Temple, two pair of stairs iiigh, at the back window, by tbe help of his sheets and a rope;" 14 Commons' Journals, 553. Writs of habeas corpus were served on the Serjeant-at-Arms on behalf of Montague and Denton, but the House forbade him to make any return thereto. At last, after two conferences between the Houses, which served only to widen the breach, Queen Anne put an end to the disjjute by proroguing parliament. See Hallam's Const. Hist, of England, 8th ed., vol, iii. 271—274, 279. In the course of these discussions the Lords appointed a committee to prepare an argument in the shape of a report upon the proceedings in Ashby v. White. This argument was principally drawn up by Lord Holt, and contains a masterly disquisition upon all the subjects connected with the case. It is printed entire in Gale's note, above referred to, and consists of three parts : first, it is argued that the plaintiff had a right to vote ; secondly, tliat if so, he must, as a necessary consequence, as an inseparable incident to his riglit, have a remeihj to assert and maintain it ; thirdly, that his proper remedy was that which he had pursued, viz., by action ; see 6 Cobbett, Pari. Hist. 224. Frau.l and It will be observed tliat the declaration in Ashbn v. White malice averred , i ,• , -if t z-^/- i • in luiiiripid charged tlie delendants with iraud and malice. Or this, ^^^^- according to the text, Lord Holt took no notice. But in a revised form of his judgment, which he prepared himself, he observed that, according to the very words of the Statute of Westminster 1, c. 5, the action lav, because fraud and malice wci'c alleged in the declaration, and bad been proved K(!visc(l (<^(.(, liis jndgnii'nts in AsJiliy v. White and in the case of •'dition fit' ,, I ,1 11-111 L' 1 i> ^•^ Lord Hull'.-, J «'// 'fi"' "Ihi'is, ])ul)lislied l)y Saunders iV J^enmng, a.d. jiid^'iu.iit. 18;37, p. 12) ; ami in llie ai-gunient i)i'(q)ared by the Lords' Committee, frand and malice are expressly stated to be the gist of tlie action. In the words of that argument, " There is Mo (hiiigci- to ;in JKiiicst oHicer tliat means to do his duty; ASH BY r. WHITE ET ALIUS. 283 for where tliere is a roal doubt toiicliing the party's rij^ht of voting, and the officer makes use of the l)est means to be in- formed, and it is plain Ids mist-.dve ai'ose from tlie difficulty of the case, and not from any malicious or partial design, no jury will find an officer guilty in such CMse, nor can any court direct them to do it ; for it /« flic fraud (ind tlir malice that entitles tJie jxirti/ to the action. In this case the defend- ants knew the ])laintift' to be a burgess, and yet fraudulently and maliciously hindered him from his right of voting ; niul justice must requii-e that such an unjust and ministerial officer should not escfii)e with indemnity ; " G Cobbett, Pari. Hist., 314. And subsequently, in reference to Ashhji v. White, the House of Lords resolved, " tliat by the known laws of this kingdom, every freeholder, or other person, having a right to give his vote at tlie election of memhers to serve in parliament, and being u-ilfidhj denied ov hindered so to do by the officer who ought to receive the same, may maintaii] an action in the Queen's courts against such officer to assert his right, and recover damages for the injury;" see 17 Lords' Journals. 707. Yet both Lord Holt and sub- P»ty and , . . liability ot sequently the House of Lords held the office of a returnnig retmniug officer to be merely ministerial. " That the officer is only officer, ministerial in this case, and not a judge, nor acting in a judicial capacity, is most ])lain ; his business is only to execute the precept, to assemble the electors, to make the election b}'' receiving their votes, computing their numbers, and returning the persons elected ; the sherift* or other officer of a borough is put to no difficult3' in tbis case ; but what is absolutely necessary in all cases. If an execution be against a man's goods, the sheriff must at his peril take notice what goods a man has ; " G Cobbett, Pari. Hist., 314 ; (see Com. Dig., Viscount (C. 4), and the form of the writ, Dalton's Office of Sheriff, 337). But in Barnardistone v. Soamc (decided previously to If a judge, Ashhy V. WJiite), hi which the H. L., affirming the judgment action thoucli of the Exch. Cham., held that an action could not be main- fraud and tained against a returning officer for having falsely and averred, maliciously made a double return. North, C.J. (afterwards Lord Keeper Guilford), held the officer to be a jud(ie as to declaring the majority, and therefore not liable, although he acted with fraud and malice ; 6 Howell, St. Tr., 1095 (see further as to the exemption of judges from civil liability, Garnett v. Ferrand, 6 B. ^t C. 625, G26 ; Feniuson v. Kinnoull, 9 C. .^- F. 251 ; Kemp v. Xreille, 10 C. B. N. S. 284 ASHBY V. WHITE ET ALIOS. 523 ; Thomas v. Churton, 2 B. & S. 475 ; Scott v. Stansfield, L. R. 3 Ex. 220 ; Dan-kins v. Paulet, L. E. 5 Q. B. 94 ; Dau'kins v. Rokehy, 8 Id. 255 ; Willis v. Maclachlan, 1 Ex. D. 376; Anderson v. Gorrie, (1895) 1 Q. B. ()68). These extremes were avoided by Lord Tenterden in Cidlen v. Morris, 2 Stark. 587. " The returning- officer," said his lordship, " is to a certain degree a ministerial one, but he is not so to all intents and purposes ; neither is he wholly a judicial officer ; his duties are neither entirely ministerial nor wholly judicial ; they are of a mixed nature. It cannot be contended that he is to exercise no judgment, no discretion whatsoever, in the admission or rejection of votes ; the greatest confusion would prevail if such a discretion were not to be exercised. On the other hand, the officer could not discharge his dut}^ without great peril and apprehension, if, in consequence of a mistake, he became liable to an action." This passage was cited with approval in Tozer v. Child, 7 E. & B. 377. (See also Dalton's Office of Sheriff, 35, and the form of oath given by 2 Geo. 2, c. 24, s. 3 ; Ferguson V. Kinnoidl, 9 C. & F. 289, per Lord Brougham ; and as to the mode of directing the jury upon the question of malice, Dreicc v. Coulton, 1 East. 563, n. (a), 2 liuders, 244, n. (f). and Cidlen v. Morris, sujjra.) Analogous There are several instances of offices analogous to that of the returning officer for members of parliament, as it existed at common law, to which the principles above stated apply ; thus in Tozer v. Child, 7 E. & B. 377, which was an action against church-wardens for maliciously rejecting the plaintiff's vote at an election for vestrymen, under 18 & 19 Vict. c. 120, the defendants were held not to be liable, because it did not appear that they had acted maliciously (see B. N. P. 64 ; Bac. Abr., Action on the Case (f), 1). Ilcturniiif,^ But with regard to the returning officer of members of pSannnt. parliament, 6 & 7 Vict. c. 18, s. 82, has made it unlawful for liim to reject any vote tendered by a person whose name is on the register of voters, unless it appears to him, on putting to such person the questions as to identity, and as to wliether he has voted before at the same election, tliat the person cliiiiiiiiig to vi>to is not the person whose name appears on the register, or that he l)as vcjted before, or unless such person refuses to answer these questions, or to take either of the two oaths prescribed by the Act. And, by s. 86, even if tluj person t(;ndering the vote appears to be personating the registered voter, tlie officer is bound (if these questions are ASHBY V. WHITE ET ALIOS. 285 answered in the affirmative, and the oaths, if required, are taken) to receive the vote, though under i)rotest. In Pryce Remedy V. Belcher, siiyra, p. 269, it appears to have been assumed that after the passing of this Act the officer might he liable to an action for damages for refusing to receive a vote wil- fully, though not malicious]}', (see also Knill v. Towse, 24 Q. B. D. 186, 697). But it was not necessary in that case to consider the efi'ect of s. 97, which provides a particular remed}^, namel}-, an action of debt for a penalty against the returning and other officers for every icilful misfeasance or nilfiil act of commission or omission contrary to the act, but preserves any remedy against any returning officer according to the law then in force. (See Stevens y. Jcacockc, 11 Q. B. 731 ; Shepherd v. Hills, 11 Exch. 55; St. Pancras v. Batterhury, 2 C. B. N. S. 477.) Probably the breach of so plain a duty as that of the officer to receive the vote would in itself be deemed sufficient evidence to support an allegation of malice, if such were necessary. The duties cast upon presiding officers under the Ballot Act, 1872, 35 & 36 Vict. c. 33, 35 & 36 Vict. c 33 sched. i., r. 21, are ministerial, and for a breach of them an action lies by a party who has thereby lost his election without proof of malice or want of reasonable care on the defendant's part ; Pickering v. James, L. Pi. 8 C. P. 489. It may be useful to cite the rules laid down by AVilles, J., Remedies • . . .... where statu- with reference to remedies in cases of statutory liability, m tory liability. Wolverhampton Waterworks Co. v. Haickesford, 28 Ij. J. C. P. / c ^O. -^- 242 : " There are three classes of cases in which a liability ^ 3^U. may be established by statute. There is that class where there is a liability existing at common law, which is only re- enacted by the statute, witli a special form of remedy ; there, unless the statute contains words necessarily excluding the connnon law remedy, the plaintiff has his election of proceeding either under the statute or at common law. Then there is a second class, which consists of those cases in which a statute has created a liability, but* has given no special remedy for it ; there, the party may adopt an action of debt or other remedy at common law to enforce it. The third class is where the statute creates a liability not exist- ing at common law, and gives also a particular remedy for enforcing it . . and with respect to that class it has been always held that tlie party must adopt the remedy given b}^ the statute." He has a further remedy, however, by injunction either in equity or under the Judicature Act, p yCi.^'^/' 1873,8.25, sub-s. 8; Cooper v. ]]'hittuitjJtani, 15 Ch. D. 286 ASH BY V. WHITE ET ALIOS. Later conflict Ijetween the House of Commons and the Queen's Bench. 501. Tn Couch v. Steel, 3 E. & B. 402, it was held that an action lay, at the suit of a sailor who had suffered special damage, against a shipowner for not supplying medicines pursuant to a statute which imposed a penalty recoverable by a common informer. The principle laid down in that case, that, wherever a statutory duty is created, any person who has sustained injuries from its non- performance ma}^ bring an action against the person on whom the duty is imposed, unless such remedy is impliedly excluded by the statute itself, was questioned in Atkinson v. Newcastle Water- works Co., 2 Ex. D. 441. Exception was also taken to the position that where the penalty is not to go to the party grieved, he may maintain an action, although, were the penalty made payable to him, he would have no other remedy ; and it was pointed out that tlie intention must be gathered in each case from the general purview of the par- ticular statute, a distinction being drawn between those which affect the rights of the whole public and those which partake of the nature of private legislation. It was held in that case that an action would not lie against a waterworks company for breach of their statutory duty, in respect of which a penalty was made recoverable by an informer, of keeping their pipes charged at a certain pressure, whereby the plaintiff', who would have been entitled to use the water, was prevented from extinguishing a fire in his house. See also Gorris v. Scott, L. R. 9 Ex. 125 ; Ross v. Rugge-Price, 1 Ex. D. 269; Holborn Union v. St. Leonards, 2 Q. B. D. 145 ; Vallance v. Falle, 13 Id. 109. For some particulars of a later memorable conflict be- tween the House of Commons and the Queen's Bench, which cannot be stated within the limits of a note, see Stockdale v. Hansard, 7 C. & P. 731, 9 A. & E. 1, 11 Id. 253 ; the case of the Sherif of Middlesex, Id. 273 ; the 3 & 4 Vict. c. 9 ; Stockdale v. Hansard, 11 A. & E. 297 ; Jloward v. Gossett, 1 Car. & K. 380 ; Howard v. Gossett, 10 Q. B. 359 ; Gossett v. Howard, Id. 411 ; Kiellei/ v. Carson, 4 Moore, P. C. 63 ; and May's Law of Parlia- ment, 10th edit., 137. As to rights claimed by colonial legislatures similar to those of the House of Commons, see Speaker of Victoria v. Glass, L. II. 3 P. C. 560. Aslihi/ v. White appears to have been acted upon in Milivard v. Sargent, Hil. T. 1786, without any interference upon the part of the House of Connnons ; see 1 East, 567, n. ; 2 Luders, 248. BIRKMYR V. DARNELL. MICH.—Z ANNE, B. R. [REI'OUTED, 1 SALKELD, 27.] A promise to auswer for the debt, default, or mis-carriage of another, for ■which that other remains liable, must be in writing to satisfy the Statute of Frauds. Contra, where the other does not remain liable. Declaration, That in consideration the plaintiff (a) would deliver his gelding to A., the defendant promised that A. should re-deliver him safe ; and evidence was, that the defendant under- took that A. should re- deliver him safe : and this was held a collateral undertaking for another ; for where the undertaker comes in aid only to procure a credit to the party, in that case there is a remedy against both, and both are answerable according to their distinct engagement ; but where the whole credit is given to the undertaker, so that the other party is but as his servant, a]Kl there is no reniedi/ dfiainst hint, this is not a collateral undertaking. But it is otherwise in the principal case, for the plaintiff' may maintain detinue upon the bailment against the original hirer, as well as an assuDijisit upon the promise against this defendant. Et per Curiam. If two come to a shop (b), and one buys, and the other, to gain him credit, promises the seller. If ite does not pay you, I ivill, this a collateral undertaking, and void without writ- ing by the Statute of Frauds. But if he says. Let him hare the [a) S. C, 2 Ld. Raym. 1085, as Buck- on ])roduction of the jilaiiitifFs books, it myr v. Barnall ; Holt. 606, aud 6 Mod. appears the defendant was not originally Gas. 248, as Burkmire v. Darnell. debited there, that is strong evidence (b) In such a case the question to that he is but a surety, but it is not which of the two was credit given is conclusive ; Kcate v. Ttmjih, Croft v. generally left to the determination of Smallwood, 1 Esp. 121. As to the em- the jury, who, in deciding it, must take ployment of an attorney by a person into their consideration all the circum- really interested in the event of a suit stances of the case ; Keate v. Temple, 1 though not a party to the record, see B. & P. 158. Darnell v. Trott, 1 C. & Howes v. Martin, 1 Esp. 162 ; KoeL v. P. 82. Storr v. Scott, 6 C. & P. 211. If, Hart, 8 C. & P. 230. Si88 BIRKMYli V. DARNELL. goods, I will he your paymaster, or / will see you jiaid (c), this is an undertaking as for himself, and he shall be intended to be the very buyer, and the other to act but as his servant. (c) This form of words can make no do not know him you know me, and / difference if the undertaking be really will see yon paid," the statute was con- collateral, for in Matson v. Wharam, 2 sidered to apply. T. R. 80, where the words were " If you 29 Car. 2, c 3, s. 4, "What pro- mises to answer for another person are within the statute. Th'! orif,'inal debtor must cr duty promisee." It must be a promise to answer for the debt or ^° ^ _ '^ _ ]>romisee. default for which the other person is, or is to be, answer- able. Accordingly, the following promises have been held not to be within the statute : a promise to indemnify' a person against any liability which he might incur b}' Instances not executing a bond as surety, Thomas v. Cook, 8 B. & C. 728 ; Tiatutl.*^'^ a promise by the defendant to the plaintiff that P. would perform a contract made, not with the plaintiff, but with the defendant himself, Harfjreaves v. Parsons, su2)ra ; a promise by the defendant to a bailifi' that, if he would release a judgment-debtor, whom he had arrested under a com- S.L.C. VOL. I. 19 290 BIEKMYR V. DAENELL. mittal order, the defendant would pa}' the amount of the judgment-debt, for the debt was due to the judgment- creditor, and not to the bailiff, Header v. Kingham, 13 C. B. N. S. 344 ; a promise to indemnify against liability by becoming bail in a criminal proceeding, inas- much as no debt or legal duty was owing from the person bailed to the promisee, Cri-pps v. Hartnoll, 32 L. J. Q. B. 381 ; a promise to indemnify' against loss by joining in a promissory note as surety, Wildes v. Dudlow, 19 Eq. 198 ; see Batson v. King, 4 H. & N. 740 ; or hy accepting a bill of exchange, Guild v. Conrad, (1894) 2 Q. B. 885 ; a promise by one partner of a firm to tlie other partners to indemnify them against any loss in respect of an existing debt due to the firm. Re Hoyle, (1893) 1 Ch. 84, where Bowen, L. J., said : " I think that to bring a debt within the statute the debt for which the defendant has promised to answer must be a debt due to the person to whom the promise is made, and the promise must be made to a person Greeii v. who could bring an action for the debt." In Green v. CrcssweJl liosY (jresswell, 10 A. & E. 453, a view prevailed contrary to that stated above, and it was held that a promise to indemnify the plaintiff against the consequences of becoming bail for a debtor arrested under a ca. sa. required writing. But in Batson v. King, supra, Pollock, C. B., expressed an opinion that this case was erroneously decided ; it was not acted upon either in Reader v. Kingham, or in Cripps v. Hartnoll, supra ; in Wildes v. Dudlow, supra, Malins, V.-C, treated it as over-ruled, and his decision was approved in Guild v. Conrad, supra, where it was again laid down that "a promise to become liable for a debt whenever the person to whom the promise is made should become liable is not within the statute." Statute only " 'i'^e statute only applies to promises on which actions applies where ^f, jj^^w could be maintained," and not to promises which act^inablc could only be enforced by a suit in equity, such as a at law. promise by one partner, made to the other partners, to pay a debt due to the firm, which can onl}' be enforced by an equitable suit for an account ; Re Iloyle, supra, per lindley, L. J. It has been thought that it is enough to bring the case within the statute if the contract be made with reference to a sui)posed future liability of a third person towards the promisee, even tliough such liability was never in fact created ; Mountsteplwn v. Lakeman, L. II. 5 Q. B. 613. Lord Selborne, however, criticized this view in the H. L., BIRKMYR r. DARNELL. . 291 L. R. 7 H. L. 24; n\)d in the Exch. Cham., L. R. 7 Q. B. 202, AVilles, J., pointed out that if the supposed liabihty was the basis of the contract, but never in fact came into existence, the contract would fail by the general law of con- tract, apart from the question whether it was Avithin the statute or not. It is further laid down in the notes to Forth v. Stanton, There must be ante, that there must be an " absence of any liability on the T Tr^\^-vl J J dent liability part of the defendant or his property, except such as arises on the part of from his express promise." This rule has been applied in t|fy^™nuser several cases; and in Sutton v. Grey, (1894) 1 Q. B. 285, perty. where the authorities were reviewed, the rule was re-stated more fully by Lopes, L. J., as follows : " The true test as derived from the cases is, to see whether the person who makes the promise is, but for the liability which attaches to him by reason of the promise, totally unconnected with the transaction, or whether he has an interest in it inde- pendently of the promise." Thus the statute does not appl}^ to a promise b}' a man to pay off an incumbrance on his own propert}', which another is liable to pa}'; Williams v. Leper, 3 Burr. 1886 ; Fitzgerald v. Dressier, 7 C. B. N. S. 374 ; or to the contract by a del credere agent witli his principal; Couturier v. Hastie, 8 Exch. 40; ir7cA- ham V, Wickham, 2 K. t^^ J. 478, 486 ; or to a contract which regulates the terms of the employment of the defendant b}' the plaiiuiff; Fleet v. Murton,L. R. 7 Q. B. 126, 132; Sutton V. Gret/, supra. An agreement to give a guarantee is within the statute ; Mallett V. Bateman,\6 C. B. N. S. 530, L. R. 1 C. P. 163. When it is settled that the promise is one to answer for the debt, default, or miscarriage of another, within the mean- ing of the statute, or to use Lord Holt's expression in the text, that it is a collateral, not an original promise, the next question is, what must appear in the writing? Now, the What must statute in terms requires that the aareeinent, or some mono- ^VV^':^^'^^ ... . writing. randum or note thereef, shall be in writing ; and, since the word agreement comprehends both a consideration and a promise, it Avas held that both these must appear in the writing. Tliis was determined in the celebrated case of Wain y. Warlters, 5 East, 10, which, though frequently doubted, was at last confirmed by Saunders v. Wahcfwld, 4 B. & Aid. 595 ; see post, p. 318. But in consequence of the difficulty of setting forth the consideration in a sufficient manner to satisfy the coui'ts of 19 2 292 BIRKMYK V. DARNELL. 19 & 20 Yict. c. 97, s. 3. Consideration need not api)ear in writing. Eules as tn adniissil.iility of jiarol evi- dence, how far affected bv 19 & 20 Yict. c. 97, s. 3. Parol evidence of considera- tion not admissible to sujijih) liroiiiisi'. lltjl'inrs V. Milchell. liiw, this rule proved to be a grievance to the mercantile community, and therefore, after having been in force for more than half a centur}-, it was at last rescinded by the Mercantile Law Amendment Act, 1856, s. 3 of which enacts, that no special promise made by any person " to answer for the debt, default, or miscarriage of another person, being in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorised," is to be deemed invalid to support an action, suit, or other proceeding to charge the person by whom such promise has been made, '^ hi) reason only that the consideration for such j)vomise does not a-ppear in ivriting, or by necessary inference from a written document." This Act, therefore, extends to cases within the second branch of s. 4 of the Statute of Frauds the rule which had been already applied to s. 17, namely, that it is sufficient if the promise of the party to be charged appears in the writing ; see Egerton v. Mathews, 6 East, 307. This Act does not, it must be observed, exempt guaran- tees from the application to them of tlie ordinary rules of evidence with reference to written instruments, but only iiUows the term constituting the consideration to be added by parol. By the ordinar}' rules of evidence proof of the actual consideration is admissible in cases of patent am- biguity, where the language of the instrument renders it uncertain as to which of two or more matters severally men- tioned therein was the consideration upon which it was given. If, however, the instrument states that to be the consideration for the promise, which in law is no considera- tion, and a consideration cannot be collected from the rest of the instrument {Olderslian- v. King, 2 H. & N. 517), or if, looking only to the terms of the instrument, it appears that no consideration Avas given, or if the consideration is mis- stated, in none of these cases does this Act profess to affect the rule, that tlie terms of a written instrument cannot be varied by parol. If the whole of the promise does not sufficiently appear in writing, parol evidence of the consideration is not admis.sible to supply the defect. This point was decided by Holmes v. Milchell, 7 C. B. N. S. 361. There tlie defendant had by word of month advised the plaintiff" to lend 400/. to Spooner jind Cubilt on niortgngc of certain i)remises, and the defend- ant having consulted Lyne (his solicitor), addressed and signed the following letter to the plaintiff": — " I saw Lyne BIRKMYR V. DARNKLL. ^93 this morning, and told him to call on you, as he seemed anxious to have the mortgage completed, and I thought he offered very fair ; hut do as you please about it. I will undertake any resi)onsil)ility myself respecting it, should there be any." The plaintifi", acting on the faith of this letter, lent the 400^. on the mortgage, and thereby suffered considerable loss. Thereupon he sued the defendant as on a guarantee, relying on the promise contained in the letter. The court held that the action would not lie. " At the time the letter was written," said Byles, J., delivering the judg- ment, " no rnortf/ar/e existed. The letter is silent as to the sum to be advanced, as to the nature of the security, whether a mortgage in fee or for years, aiid as to the land to be charged. The letter, if read by itself, without reference to any previous conversations, would be a promise to be respon- sible for any sum of money, however large, at any rate of interest, secured by any kind of mortgage, on any land, with any title. That, however, would be an unreasonable con- struction, and is not its true meaning ; it evidently refers to previous conversations in which those particulars were sup- plied. The whole promise, therefore, is not in writing, as the statute requires that it should be. It cannot be made out without reference to previous conversations. In Shortrede V. Cheek, 1 A. & E. 57, and in Bateman v. Phillips, 15 East, 272, an existing document or an existing debt was referred to in the writing, so that evidence of oral statements was not necessar}' to explain the promise. The recent statute, 19 & 20 Vict. c. 97, s. 3, it is true, abrogates the rule laid down in Wain v. Warlters, 5 East, 17, and enables a party to give parol evidence of the consideration for a guarantee. But a consideration expressed in writing formerh' discharged two offices, it sustained the promise, and might also explain it. Now, however, parol evidence, though it may supply the consideration, cannot go further, and explain the promise." In order to determine whether the promise sufficiently appears in writing, recourse must still frequently be had to the authorities decided upon the questions relating to the sufficiency of the statement of the consideration, for many of these cases were decided upon grounds which would have been equally applicable had the questions turned on the sufficiency of the statement of the promise. Thus it will be sufficient (as has been held in regard to the consideration) if the promise can be gathered by fair intendment from the whole tenor of the writing; not that a mere conjecture, how- 294 BIRKMYR V. DARNELL. Evidence to identify subject-matter of ])romise admissible. Parol evidence admissible to explaiyi gua- rantee. To show that consideration whicli may be good or bad is really good. ever plausible, would be sufficient to satisfy tbe statute, but there must be a well-grounded inference to be necessarily collected from the terms of the memorandum ; see Newbury V. Armstrojifi, 6 Bing. 201, j^er Tindal, C.J. ; James v. Williams, 5 B. & Ad. 1109, j>t'r Patteson, J. ; Bentham v. Coojyer, 5 M. & W. 628 ; Jarris v. Wilkius, 7 M. & W. 410. In Shortrede v. Cheek, supra, where a guarantee was ex- pressed to be in consideration that the plaintiff " would withdraw the promissory note," the K. B. held that it was sufficiently certain, and that parol evidence was admissible to show what promissory note was meant ; and the promise having been to pay the promissory note, the parol evidence was as much required to apply the promise as the considera- tion. In Bateman v. Phillips, supra, the plaintiff was about to sue Williams for a debt, when his attorne}' received this letter signed by the defendant : — " The bearer, Williams, has a sum of money to receive from a client of mine next week, and I trust you will give him indulgence till tliat day, when I undertake to see you paid." The debt of Williams, which was the subject-matter both of the consideration and promise, having been identified by parol evidence, the letter was held a sufficient memorandum within the statute. The above two cases are illustrations of the general rule that parol evidence is admissible to identify the subject-matter of a written instrument ; see also Macdonald v. Longbottom, 1 E. .1- E. 977 ; Mumford v. CxetUng, 7 C. B. N. S.' 305. Parol evidence is admissible, as in the case of a will or other written instrument, not to alter or vary the meaning of a guarantee, but to interpret or explain it ; not to make that appear to be a consideration whicli upon the face of the guarantee appears not to be so ; but either (as in Shortrede V. Cheek) to fix the particular subject-matter to which the guarantee relates, or even to show, by reference to time or other circumstances, that matter indicated b}' the guarantee, but which, as described therein, may be a good, and does not appear to be a bad, is, by reason of such circumstances, in fact a good consideration. Thus in Ilaigh v. Brouks, 10 A. & E. 309, i)arol evidence was held admissible to show that future advances were referred to in a guarantee worded — " In considei-ation of your being in advance to L. and Sons in 10, 000/., for the ])urehase of cotton, I liereb}' give you my guaranty for that amount, on their behalf." And in Goldsliedc V. Siran, 1 f xch. 151, a gUMrantee worded — "In consi(b;ration of your having this da}' advanced to S. D., BIRKMVR DARNELL. 295 750/., secured, &ic., we jointly and severally undertake, i.*tc." — was held to be " sutticiontly ambiguous " — (that is, not Parol evidence ambiguous as to what wjis the mutter intended to be the ,„issible consideration, for that was sulhciently identified, but as to whether that matter, when its circumstances were ascer- tained, would furnish a sufficient consideration in point of law) — to admit of evidence to show that the advance was not a past one, but made simultaneously with the execu- tion of the guarantee. In each of those cases the subject- matter of the consideration was identified by the writing, and its circumstances only were added by parol to show that what appeared by the writing itself to be tlie considera- tion was a valid consideration in law. See also Hoad v. Grace, 7 H. & N. 494, where " goods supplied " was con- strued to mean goods to be supplied; and Way y. Ilearn, 13 C. B. N. S. 292, 305, ik't Williams, J. In Ilaikes v. Todd, 8 A. Oc E. 846, a guarantee thus : — " Oct. 19th, 1832, I undertake to secure to 3'ou the pay- Future ail- ment of any sums you have advanced, or may hereafter '^''"^'^^*- advance to D., on his account with you commencing 1st Nov. 1831, not exceeding 2,000/.'" — was considered invalid on the ground that it was doubtful whether the consideration consisted of forbearance to sue for the past advances, or partly that and partly the making of further advances, and the court decided that, at all events, it did not sustain a declaration alleging the advances to be the con- tsideration. There can, however, be no doubt that, as suggested by Parke, B., in Kenuaicai/ v. Treleavcn, 5 M. & \V. 498, future advances would form a sufficient consideration for a guarantee of their own amount, and also of past advances ; and accordingly in Johnstone v. NichoUs, 1 C. B. 251, and Clctpinun v. Sntton, 2 C. B. 634, guarantees of past and future debts given in considera- tion of a continuance of dealings witli the principal debtor were sustained. Scinple v. I'inJ,\ 1 Exch. 74, which decided Forbearance that forbearance to sue was not a sufficient consideration to "^ ^^^^' support a guarantee, must be considered as over-ruled bv Oldershaw v. King, 2 H. iV N. 517 ; see Coles v. Pack, L. R. 5 C. P. 65 ; IVijnne v. Hmjhes, 21 W. R. 628; Miles v. New Zeedand Co., 32 Ch. D. 266 ; Crears v. Hunter, 19 Q. B. D. 341. In construing a guarantee, the surrounding circumstances Surrounding should be looked to ; Ileffield v. Mcuhnrs, L. H. 4 C. P. ^^''^^i^stances. 595 ; Laurie v. ScJtolejield, Id. 622 : Neicell v. Radford, 296 BIRKMYR V. DARNELL. Construction ut res ma (J is valcat quain percat. Eiionsli if promise can be collected from ditiereuV writings if sufficiently connected. Eoydell v. Drinnmond. TllC cr,„. nectinn must appear on tlie L. R. 3 C. P. 52; Coles v. Pack, L. E. 5 C. P. 65 ; Morrell V. Coican, 7 Cli. D. 151 ; and in certain cases the rule, ut res. magis raleat quain pereat, will be applied. Thus in Broovi V. Batchelor, 1 H. & N. 255, the defendant's guarantee was as follows : — " In consideration of the credit given by S. Broom to J. Edge, I guarantee the payment of all bills of exchange drawn hy the said S. B., and accepted by the said J. E. ; also I agree to guarantee payment of any balance that may he due from the said J. E. to the said S. B. ; this guarantee to inckide all bills of exchange now running, as well as the balance of account due ; " and it was held that the writing extended to future transactions, and was suffi- cient to support an action on a promise to answer for the default of Edge in resj^ect of a bill accepted b}" him aftev the date of the agreement. Provided that the agreement or promise be reduced ta writing according to the above rules, it matters not out of how many different papers it is to be collected, so long as they can be sufficiently connected in sense ; Jackson v. Lowe, 1 Bing. 9 ; see Johnson v. Dodgson, 2 M. & W. 653 ; Hammersleg v. de Biel, 12 CI. & F. 45 ; Ridgicay v. Wharton, 6 H. L. C. 238. But this connection in sense must appear upon the documents themselves, for parol evidence is not admissible for the purpose of connecting them. That was one of the principal points decided in Bogdcll V. Druminond, 11 East, 142, wdiich arose upon s. 4 of the statute, although the contract there sued upon was not a guarantee. In that case the plaintiff proposed to issue an edition of Shnkspeare, to be published in numbers. The particulars of publication and terms of subscription were printed in a prospectus. A book was kept, entitled, " Shaks- peare subscribers, their signntures," which did not refer to« the prospectus. The defendant signed the book as a sub- scriber, but, after receiving and paying for a few numbers,, refused to take any more. In an action brought against the defendant to enforce the contract, the court held tli-.it, the contract was within s. 4 of the Statute of Frauds (see post, p. 305) ; and that, though tlie pvospcetus contained the terms of the agreement, and would be a sufficient iiteitioraiidum thereof if it could be coupled w ith the book in which the defendant signed his name, still, as it contained no reference- to the JMjok, nor tlu; hook to it, tliere was no connection in sense between llicni which would enable the court to couple BIRKMYR V. DARNELL. ^97 them together and treat them as one document; o-wA that f^te of the such coiDiectioii could not he introduced hy parol evidence, bvt must, in order to satisfy the statute, appear upon the face (f the documents themselves. This rule that the connection hetwecn several documents must appear on the face of the documents themselves, has ever since been adopted and acted upon ; see Peek \. N. Stafford R. Co., E. B. & E. 958, 1000, per Williams, J. ; S. C. 32 L. J. Q. B. 241, "110, per Lord Westbury ; Fitz- maurice v. Bayley. 9 H. L. C. 78 ; Wilkinson v. Evans, L. E. 1 C. P. 407 ; Crane v. Powell, 4 Id. 123, jj^r Willes, J. ; Peirce v. Corf, L. R. 9 Q. B. 210; Note Co. v. hunkley, 4 Ch. D. 1 ; Kronheim v. Johnson, 7 Id. 60 ; LoiKj v. Millar, 4 C. P. D. 450; Cave v. Hastings, 7 Q. B. D. 125 ; Shard- low V. Cottcrell, 20 Ch. D. 90; Studds v. WatHon, 28 Id. 305 ; Oliver v. Hunting, 44: Id. 205 ; Taylor v. Smith, (1893) 2 Q. B. 65. In Oliver v. Hunting, sup)-a, Kekewicli, J., seems to sa_y that, though there is no reference in one docu- ment to another, parol evidence may be given to connect them, but that expression of opinion was unnecessary to the decision. Parol evidence is always admissible to identify the document referred to, or to show that a reference, which may be to a document, is so in fact; see the above cases, and particularly Long v. Millar, and 'Taylor v. SmitJt, per Kay, L.J. It does not signify to whom the memorandum containing Does not the agreement is addressed. It may be contained in a letter '^'oi'i'y t'> 1-1 T 1 TT 1 • 'i -. » 1 - 1 71 whom iiieiiio- to a thu'd person ; jier Jjord Hardwicke, 3 Atk. u03 ; Bateman liindinn he V. Phillips, 15 East, 272 ; Longfellow v. Williams, Peak. ='^l'^'fs.sed. Ad. Ca. 225 ; Gibson v. Holland, L. Pt. 1 C. P. 1. It may be merely an offer acted upon; Powers v. Fowler, 4 E. & B. Oifer atto I 511 ; Smith v. Neale, 2 C. B. N. S. 67 ; see Peek v. N. Staff. ^^1'°"- R. Co., supra; Holmes v. Mitchell, 7 C. B. N. S. 361; Shadwell v. Sliadwell, 9 Id. 159 ; Forster v. Rowland, 7 H. & N. 103. The reason of this is, that the memo- Memorandum randum is necessary only to evidence the contract, not to ^^ ?, ^' . J J I evidence, not constitute it. As was observed by Tindal, C. J., in Lay- the contract. thoarp V. Bryant, 2 B. N. C. 735, 744, " The agreement, in truth, is made before any signature." f'pon tliis ground it was decided in Leroux v. Brown, 12 ('. V>. 801, that a contract within the statute, though made aliroad, must be in writing. The names or a sufficient description of both the parties wiiat must to the agreement must appear in the meimn-andum ; ^Mn''^'"' i" ° memorandum. BIRKMYR V. DARNELL. Williams v. LaJic, 29 L. J. Q. B. 1 ; Vandeiihergh v. Sjyooner, L. E. 1 Ex. 316 ; Newell v. Radford, L. R. 3 C. P. 52 ; and there must be a sufficient identification of the property dealt with in the document or documents con- stituting the memorandum ; Shardlow v. Cotterell, 20 Ch. D. 90; see also ante, p. 294. In memoranda of contracts for the sale of lands, the following have been held suffi- cient descriptions of a party : — " The proprietor," Sale V. Lambert, 18 Eq. 1 ; Ilossiter v. Miller, 3 App. Cas, 1124; "a trustee selling under a trust for sale," Catling V. King, 5 Ch. D. 660; "the executors of" a named person, Hood v. Barrington , 6 Eq. 218 ; *' the com- pany," where the memorandum showed that the company was in actual occupation, Commins v. Scott, 20 Eq. 11. "Vendor" alone is insufficient. Potter v. Diijjield, 18 Eq. 4 ; so is "vendor," or "friend," or "client" of a named person, Jarrett v. Hunter, 34 Ch. D. 182 ; or " proposing lender," Pattle v. Anstruther, 69 L. T. 175. In Coombs v. Wilkes, (1891) 3 Ch. 77, the memorandum referred to " the landlord," but, as it did not show that the person thereby meant was the same person as " the vendor," it was held insufficient. In Marshall v. Berridge, 19 Ch. D. 233, it was held, overruling Jaques v. Millar, 6 Id. 153, that an agreement for a lease not stating the da}' from which the term was to commence did not satisfy the statute ; see May V. Thompson, 20 Id. 705; and compare Phelan v. Tedcastle, 15 L. E. Ir. 169. The memorandum must be signed by the party against whom it is sought to enforce the contract or his agent ; but it need not be signed by the party seeking to enforce it ; Laythoarp v. Bryant, 2 B. N. C. 744 ; Liverpool Borougli Bank v. Eccles, 4 H. & N. 139. It was objected in Lay- thoarp V. Bryant, which case arose on a contract to sell lands, that unless it were signed by both parties, there would be a want of mutuality, as the party who signed would be bound, and the party who had not signed would be loose, so that there would be no considei'ation for his agreement. "But," said Tindal, C. J., "whose fault is that? The defendant might liave required the phiintiff's signature, but llic o])j('ct oi' llio stiitute was to secure the defendant's. The pi'(iiiiil)lc runs, ' I'oi' prevention of manv fraudulent practices, wliicli nrc commonly cndcavourt'd to bo upheld l)y perjui'v imd sul)ornation of perjury;" and the whole object of the legislature is answered, when we put this BIRKMYR V. DARNELL. 299 construction on the statute. Here, when this part}' who has signed is the party to he charged, he cannot he suhject to any fraud. And there has been a little confusion in the argument between the consideration of an agreement and mutuality of claims. It is true the consideration must appear upon the face of the agreement. Wain v. Warlters was decided on the express ground that an agreement under the fourth section imports more than a bargain under the seventeenth ; but I find no case, nor any reason for saying that the signature of both parties is that which makes the agreement. The agreement is in truth made before any signature." It is, however, of course possible that an jigreement maj-- be so framed as not to be binding, unless both parties have signed ; as where one signs on condition that the terms of the writing are not to be obligatory unless the other signs ; see Furness v. Meek, 27 L. J. Ex. 34 ; Hubert v. Treherne, 3 M. & Gr. 755. The memorandum is sufficient though it was signed before Signature ,1 • , 1 1 1 ■ ii 1 before contract the agreement was concluded, as m those cases where a concluded signed proposal of a contract accepted by parol has been held sufficient as a memorandum to bind the party proposing ; see Smith v. Ncale, 2 C. B. N. S. 67; Beuss v. Picksley, L. R. 1 Ex. 342, where the earlier cases are ccdlected ; and the remarks on this case in lie New Everhardt Co., 43 Ch. D. 118. The dictum attributed to Fry, J., in Munday v. Asprey, 13 Ch. D. 855, was unnecessaiy to the decision, and is contrary to the above cases. The statute requires a " signature" and not a " subscrip- Pl:^ce of tion," and therefore the signature need not be at the end of ^^''^^"' the memorandum ; it is sufficient if it is so introduced as to govern and authenticate every material or operative part of it ; Caton v. Caton, L. K. 2 H. L. 127 ; KnviJiciiu v. John- son, 7 Ch. D. 60; Jones v. Victoria Co., 2 Q. B. I). 314; Evans v. Ho ire, (1892) 1 Q. B. 593; Be Hoyle, (1893) 1 Ch. 84 ; Sims v. Eandray, (1894) 2 Ch. 318. As to signa- ture l\y agents, and as to what is a signature, see notes to Wain V. Warlters, j^ost, p. 319 et scq. The statute does not diminish the force of deeds, because Deeds, they are not signed, or otherwise aftect them ; see Aveline v. Whisson, 4 M. & Gr. 801 ; Cooch v. Goodman, 2 Q. B. 580 ; Cherry v. Heming, 4 Exch. 631 ; Holmes v. Mitchell, 7 C. B. N. S. 361, 368, per Willes, -1. Where alterations made in a written contract after it has Alterations been signed by the defendant ;ire subsequently assented to '^^^g ^'^ BIRKMYR 0. DAKNELL. by him, parol CA-idence is admissible to prove such assent ; Steirart v. Eddotces, L. II. 9 C. P. 311. In like manner, where there is a written memorandum of the contract, parol evidence is admissible after performance to show that the defendant accepted a substituted mode of performance ; Leather Cloth Co. v. Hieronimus, L. R. 10 Q. B. 140; or requested that performance should be delayed beyond the stipulated time ; Hickman v. Haynes, L. Pt. 10 C. P. 598 ; but parol evidence is not admissible to prove an alteration which creates a substituted contract; Pier ins \. Downing, 1 C. p. D. 220. The purpose for which the memorandum was made is immaterial. " The object of the statute being merely to exclude parol evidence, any writing embodying the terms of an agreement and signed by the person to be charged is sufficient:" "It is shown by a catena of cases down to Gibson v. Holland, L. Pi. 1 C. P. 1, and Wilkinson v. Evans, Id. 407, that the question is not one of intention of the party who signs the document, but simply one of evidence against him ; " i^er Lindley and Bowen, L.JJ., Re Hoyle, (1893) 1 Ch. 84, where it was held that a recital in a will may be a good memorandum. So also may an affidavit made in previous proceedings ; Bai'kicorth v. Young, 4 Drew. 1 ; see Lucas v. Dixon, 22 Q. B. D. 357; or an entry in a minute-book signed for the j)urpose only of verifying the accuracy of the entry ; Jones v. Victoria Graving Dock Co., 2 Q. B. D. 314; or letters written to third parties; Moine V. Hart, 1 Vern. 110, 201 ; Smith, v. Watson, Bunb. 55 ; Bateman v. Phillips, 15 East, 272 ; Gibson v. Holland, supra. A letter written, long after the contract was made, ior the i)uri)ose of repudiating all liability under it, may be a sufficient memorandum ; Bailey v. Stceeting, 9 C. B. N. S. 843 ; Wilkinson v. Evans, P. IL 1 C. P. 407 ; Buxton v. Rust, L. li. 7 Ex. 1, 279. Witlioiit writ- The words attributed in the text of the principal case to '""' l"'"'ni^e ^]^y couit, tluit a guarantee is void without writing, by the not voiii, hut . , , , ^ ..... ,, ^ ' ^ no action can Statute ul Irauds, are too strong, ii hterally understood; hebrou-liton ^-^j, ^jj.^^ j^^.^ ^\^J^^^ ^^^^l direct that the promise shall be roid, it. , . . but that "no action shall be brought" ujx))! it. "1 think that it is now finally settled that the true construction of the Statute of Frauds, lioth the Itli and the 17th sections, is not to render the contrticts within tliem void, still less illegal, but is to render the kind of I'vidence required indis- pensable when it is sought to enforce the contract;" Aladdi- BIRKMYR V. DARNELL. 301 son V. Alderson, 8 App. Cas. 467, 488, j)e/- Lord Blackburn. The contract is an existing contract ; Britain v. liussiter, 11 Q. B. D. 128 ; see Hugill v. Masker, 22 Id. 364. Accordingly, though no action can be brought upon a parol guarantee, the courts have been known to enforce one against a solicitor by virtue of their summary jurisdiction over their own officers ; Evans v. Duncan, 1 Tyrw. 288, and Senior y. Butt and Payne \. Johnson, iliere. cited; Be Hil- liard, 2 D. & L. 919. And an oral guarantee may be given in. evidence in some cases as, for instance, to show that the defendant had accepted a bill as an accommodation bill ; Cresswell v. Wood, 10 A. & E. 460 ; or that payments made to the defendant were not made without consideration ; Sweet V. Lee, 4 Scott, N. R. 77 ; Shaw v. WoodeocJc, 7 B. & C. 73, 84 : Thomas v. Brown, 1 Q. B. D. 714. However, it is not necessary, in order that the statute Heiiectof should apply, that the action should be brought on the tlm^Men- agreement ; it is enough if the eft'ect of the action is to tlant by means " charge " the defendant by means of the agreement. Thus i^ nuistTe'in in Carrington v. Boots, 2 M. ^t AV. 248, the plaintiff sued in writing. trespass for seizure of his cart ; the defendant pleaded that he seized it on his premises damage feasant ; the plaintiff re2:)lied that the cart was there under an agreement between them lor the sale and removal of a crop ; parol evidence of such a sale was rejected and plaintiff non-suited. And where A stranger to a question arises between either of the contracting parties L<3mract •^ o 1 niay insist and a stranger, whether a contract has passed an interest in won the services or other property, the stranger may, equally with a ^^'^^"^^'• party to the contract, insist upon the statute. Thus, where a contract of service is, as between the parties to it, not actionable for want of writing to satisfy' the statute, the master can maintain no action for enticing away the servant; Si/kes V. Dixon, 9 A, & E. 693; nor could he proceed cri- minally under the Master and Servant Act, 1867; Banks v. Crossland, Ij. B. 10 Q. B. 97 ; and a vendee cannot, where the contract of sale is invalid by the statute, effect an insurance upon the goods ; Stockdale v. Dunlop, 6 M. & W. 224 ; nor, it seems, could he bring an action against the carrier for loss of the goods, treating the vendor as his agent to forward ; see Coats v. Chaplin, 8 Q. B. 483; Coombs v. Bristol and Exeter B. Co., 3 H. el' N. 510; nor against a stranger for conversion of the goods after the making of the actual contract and before the reduction of its terms to writing; Eelthouse v. Bindley, 31 L. J. C. P. 204. BIRKMYR V. DARNELL. Memorandum must exist before action. The note or memorandum in writing must exist at the time when the action is commenced, so that an action can- not be supported by a memorandum signed after its com- mencement ; Lucas V. Dixon, 22 Q. B. D. 357; BUI v. Bament, 9 M. & W. 36 ; see Flicker n. T]iomUnso)i, 1 M. L*i: Gr. 772; Sievewright v. Archibald, 17 Q. B. 103, 107; Bailey V. Siceetinrj, 9 C. B. N. S. 843, 856; Gibson v. Holland, L. E. 1 C. P. 1, 8. "As the statute affects only the mode of proof, this rule must be considered anomalous ; but it is founded on the wording of the statute ; " j?er Lindlej', L..T., Re Hoyle, (1893) 1 Ch. 84, 97. It must be remembered that the Statute of Frauds "is a weapon of defence, not offence, and does not make any signed instrument a valid contract by reason of the signature, if it is not such according to the good faith and real inten- tion of the parties ; " per Lord Selborne, Jerris v. Berridge, L. R. 8 Ch. 351, 360, and Hussey v. Home Payne, 4 App. Cas. 311, 323. Accordingly, in the latter case, where two letters of a correspondence seemed to constitute a complete contract in writing sufficient to satisfy the statute, the party to be charged was allowed to show by the other letters and by parol evidence of conversations that a complete contract was not intended by the two letters in question ; see also Bristol Aerated Bread Co. v. Maggs, 4:4: Ch. D. 616 ; Bellamy v. Dehenham, 45 Id. 481, 493. In cases where letters, relied on as constituting a sufficient memorandum of agreement within the statute, contemplate the drawing up of a formal instrument between the parties, it is a question of construction whether the parties intended that the letters themselves should constitute a binding agreement or that there should be no binding agreement until the formal in- strument had been drawn up and accepted by them ; Rossiter V. Miller, 3 App. Cas. 1124 ; Bonneivell v. Jenkins, 8 Ch. D. 70; Bolton v. Lambert, 41 Id. 295; Gray v. Smith, 43 Id. 208. PETER ^'. COMPTON, TRINITY.— b W. ct- M., KING'S BENCH. [reported, skinner, 353.] * ' An agreement that is not to be performed within the space of one year from the making thereof " means, in the Statute of Frauds, an agree- ment which appears from its terms to be incapable of performance within the year. The question upon a trial before Holt, Chief Justice, at nisi lirius, in an action upon the case, upon an agreement, in which the defendant promised for one guinea to give the plaintiff so many at the day of his marriage, was if such agreement ought to be in writing (a), for the marriage did not happen within a year : the Chief -Justice advised with all the Judges ; and by the great opinion (for there was diversity of opinion, and his own Qi) was e contra) where the agreement is to be performed upon a contingent, and it does not appear within the agreement that it is to be performed after the year, there a note in writing is not necessary, for the contingent might happen within the year ; but where it appears by the whole tenour of the agreement that it is to be performed after the year, there a note is necessary : otherwise not. {a) According to the exigency of the that the reason of his opinion was " be- Statute of Frauds, 29 C. 2, c. 3, s. 4 ; cause the design of tlie statute \vas~not see Salk. 280. to trust the memory of witnesses beyond [b) In Smith V. Westall, Lord Ray. 31(5, one year." Lord Holt says, speaking of this case. This case, as well as Birkmyr v. Darnell, turns on the Statute does fourth - section of the Statute of Frauds. That section a^JeeSf directs, among other things, that no action shall be brought wldchmaybe to charge any person, " upon any agreement that is not to he withiuTyear performed witliin the space of one year from the making 304 PETER V. COMPTON. Eule ill prin- cipal case well establislud. Wliat agree- ments have been accord- ingly held not within the statnte. What agree- ments have been held to be within statute. thereof,'" " unless the agreement, 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." Peter v. Compton turned upon the meaning of the words printed in italics. The opinion of the majority of the judges in this case has been often confirmed. "The Statute of Frauds plainly means an agreement not to he performed within the space of a year, and expressly and specifically so agreed : it does not extend to cases where the thing may he performed within the year;" _per Denison, J., Fenton v. Emhlers, 3 Burr. 1281. Accordingly, the following contracts have been held itot to be within the statute, viz., a contract to leave money by will, Fenton v. Emhlers, supra ; Ridleij v. Ridley, 34 L. J. Ch. 462 ; a contract by A. that his executors shall pay 10,000/., Wells V. Horton, 4 Bing. 40 ; a contract to main- tain a child for its life. Murphy v. Sullivan, 11 Ir. Jur. N. S. Ill; a contract to pay a wife a weekly sum for her main- tenance, McGregor v. McGregor, 21 Q. B. D. 424; the reason in all the above cases being that death might occur within the year; also a contract to maintain a child " so long as the defendant should think proper," Souch v. Straiv- hridge, 2 C. B. 808 ; and a contract to pay the plaintitf 300/. a year quarterly so long as she should maintain and educate children properly, Knowlman v. Bluett, L. R. 9 Ex. ] ; affirmed, Id. 307, but on the ground that the action was in substance for mone}^ paid at request. See also, Anon., Salk. 280; Francam v. Foster, Skin. 356. The words of the statute are, however, express, that no action shall lie upon any agreement that is not to be per- formed within one year after the making thereof, unless it be reduced into writing and signed. Accordingly, it has been held, that a signed memorandum is required to prove the following contracts, viz., a contract to hire a carriage for five years at ninety guineas a yeor, though determinable by custom at any time on payment of one year's hire. Birch v. Liverpool, 9 B. & C. 392 ; a contract for more than one year's service, Giraud v. lUchard, 2 C. B. 835 ; though de- terminable by either party by notice within the year, Dohson V. Collis, 1 H. & N. 81 ; a contract for a year's service, to begin on a day subsequent to the date of the contract, Brace- girdle V. TIrald, 1 B. & Aid. 722; Snellitig v. lliiuiiugjield, 1 C. M. & B. 20; Britain v. llossiter, 11 (,). B. 1). 123; unless, perliaps, the service is to begin on the next day, PKTKR I.K COMPTON. 305 see per Willes, J., Cawthorne v. Cordrey, 13 C. B. N. S. 406, commented on by Lord Esher, in Britain v. liossiter, supra ; a contract to supply goods for three years, deter- minable by six months' notice from either part}'. Ex p. Acraman, 31 L. J. Ch. 741 ; a contract to pay 80Z. a year for five years, and then QOl. for life. Sweet v. Lee, 4 Scott, N. 11. 77 ; a contract to bu}' a book to be published in parts, "one number at least to be published annually," Boydellx. Druvi- mond, 11 East, 142 ; a contract to maintain a child about five years old, " until she be able to do for herself," Far- rington v. DonoJioa, 1 Ir, R. C. L. 675, upon the ground that the contract clearly contemplated maintenance until an event which could not happen within a year ; an agreement that a yearly tenancy should not be determined before the end of three years, Sidehotliain v. Holland, (1895) 1 Q. B. 378. In Eley v. Positive Assurance Co., 1 Ex. D. 21, affirmed Id. 88, but upon an independent ground, it was held that a contract that E. should be the solicitor to a company, and should " not be removed from his office unless for miscon- duct," was within the statute, because " the parties contem- plated that the contract should continue to be binding, at least against the company, during the Avhole professional life of the plaintift"; " and in Davey v. Shannon, 4 Ex. D. 81, it was held that a contract not to engage in the trude of a tailor within a certain radius was within the statute. The latter case was expressly disapproved of by the C. A. in McGregor v. McGregor, 21 Q. B. D. 424, and both cases seem in effect to be over-ruled by the last-named case. The rule is, that "where the agreement distinctly shows Rule, ;>«• upon the face of it that the parties contemplated its pei'for- "^'^''tl'^l. C.J. niance to extend over a greater space of time than one year, tlie case is within the statute ; but where the contract is such that the whole may be performed within a year, and there is no express stipulation to the contrarv, the statute does not apply;" jjc;?" Tindal, C-)., Soucli \. Strawhridge, 2 C. B. 808. It was hinted in Bracegirdlc v. Heald, 1 B. & Aid. 722, Dondlan v. and decided in Donellau v. Bead, 3 B. & Ad. 899, that an ^'''''^■ agreement is not within the statute, provided that all that to be done by is to be done by one of the parties can be done within a year, o"^ ])arty There the defendant was tenant to the plaintiff, under a agreement lease for 20 years, of which 14 remained to run, and, in con- ""* witiiir sideration that the plaintiff would lay out 50L in alterations, S.L.C. VOL. I. 20 PETER C. COMPTON. the defendant promised to pay an additional 5/. a year dnrincf the remainder of the term. The alterations were completed within the year, and an action being brought for the increased rent, it was objected among other things, that the contract could not possibly be performed within a year, and therefore ought to have been in writing. The court however held that it was not within the statute. " We think," said Little- dale, J., delivering the judgment, " that as the contract was entirely executed on one side within the year, and as it was the intention of the parties, founded on a reasonable expec- tation, that it should be so, the Statute of Frauds does not extend to such a case. In case of a parol sale of goods, it often happens that they are not to be paid for in full till after the expiration of a longer time than a year : and surely the law would not sanction a defence on that ground, where the buyer had had the full benefit of the goods on his part. In Boydell v. Drummond the contract was not completely exe- cuted on one side, and the case was such that in the common course of the publication it was not expected that it should be completed in a year." It may be observed on this decision, that the contrary seems to have been taken for granted in Peter v. Compton, and others of the older cases ; for instance, in Peter v. Compton, there would have been no occasion to argue the question, whether the possibility that the plaintiff's marriage might not happen for a year brought the case within the statute, if the payment of the guinea, which took place immediately, had been considered sufficient to exempt the agreement from its operation. It may be further observed that the decision in Donellan V. Read, makes the word afireement bear two different meanings in the same section of the Statute of Frauds. The words of the 4th section are : — " That no action shall be brought whereby to charge . . . any person . . . upon any agreement that is not to be performed within one 3'ear from the making thereof; unless the agreement ... be in writing . . ." Now, it is (;lear, that the word agreement, when lastly used in the section, means what is to be done ow both sides ; and it was frequently held upon that very ground, before the Mercantile Law Amendment Act, 185G, that guaranties were void, if they did not contain the considera- tion as well as the promise ; see notes to Wain v. Warlters, post, p. *U8, and to Birkmgr v. Darnell, ante, p. 291 ; but a much more confined sense appears to be bestowed upon the PETER V. COMPTON. 307 word afireemrnt when it is held tliat an agreement is capable of Remarks on being performed within a year, when one part only of it is Read!^'^ ^' capable of being so. In Boydell v. Driimmond, 11 East, 159, it is expressly settled that part performance will not take an agreement out of tlie statute, and that upon principles which seem not inapplicable to the question in Donellan v. Read. "1 cannot," said Bayley, J., "say that a contract is performed, when a great part of it remains -/m-performed within the year, or in other words, that j^art performance is performance. The mischief meant to be prevented by the statute was the leaving to memory the terms of a contract for a longer time than a year. The persons might die who were to prove it, or they might lose their faitliful recollec- tion of the terms of it." (See Smith v. Westall, L. Kay. 316.) These observations seem applicable in full force to such a case a§ Donellan v. Read. The performance of one side of the agreement within the year could not be said to be more than part i^erformance of the agreement ; and the danger that witnesses may die, or their memories fail, seems to be pretty much the same in every case where an agreement is to be established, after the year is past, by parol eridence. Indeed, if there be any difference at all in the danger of admitting oral testimony after the year, it seems greater in a case where one side of the agreement only has been per- formed, than in such a case as Boy dell v. Drummond ; since, where the agreement has been partially performed on both sides, as in the latter case, a witness giving a false or mis- taken account of its terms, would have to render his tale consistent with what had been done by both the contractors ; whereas, if the part iserformance had been on one side onl}^ the witness would only have to make his tale consistent with what had been done upon that side. It is true that, in Donellan v. Read, there was a part performance on both sides ; but so there was in Boydell v. Drummond ; and the reason assigned for the decision in Donellan v. Read, viz., that the whole of one side of the agreement was performable within the year, would equally apply in a case where there had been, and could be, no part performance on the other side for twent}^ years. It seems, however, too late to question the correctness of that decision ; Cherry v. Heming, 4 Exch. 631 ; Miles v. New Zealand Co., 32 Ch. D. 266. Although a plaintiff be prevented by the statute from 20 2 308 PETER iJ. COMPTON. Claiins availing himself of his special contract, he may, never- common theless, be able to recover, upon one of the common money money counts, counts, anything in the nature of a debt which has accrued due to him by reason of his acting upon the contract ; Pulhrook v. Lawes, 1 Q. B. D. 284 ; as upon an account stated, Knowles v. Mitchel, 13 East, 249 ; Teal v. Auty, 2 B. 5: B. 99 ; Cocking v. Ward, 1 C. B. 858 ; I My cock v. Pickles, 33 L. J. Q. B. 43; or for work and labour done, Souch V. Strawbridge, 2 C. B. 808, 811, jJer Tindal, C. J. ; or money had and received. Green v. Saddington, 7 E. & B. 503 ; or money paid, Knowlman v. Bluett, L. R. 9 Ex. 307 ; McGregor v. McGregor, 20 Q. B. D. 529, affirmed, 21 Id. 424, but on a different ground. In Hodgson v. Johnson, E. B. & E. 685, the parties verball}^ agreed that the plaintiff should take over the defendant's tenancy of a brick-yard and buy the plant there, and that the defendant should pay the arrears of rent. The plaintiff' according!}^ took possession of the yard and paid for the plant, but the defendant did not pay the arrears, and the landlord distrained. Owing to the statute, the plaintiff failed to recover for the loss he sustained by the distress. The decision in this case was questioned in Pulhrook V. Lawes, siqn'a, where it was pointed out that a claim for compensation clearly existed independently of the special contract. See also Falmouth v. Tltomas, 1 C. & M. 89. As the rules of equity now prevail in all branches of the High Court, it would seem that, under like circumstances, an action would now often be maintainable upon the agreement itself. Acts of part performance of a verbal agreement, which are distinctly referable to the agreement set up, would have been sufficient in equity to take the case out of the statute so far as the relief sought was such as a court of equity had jurisdiction to bestow. This doctrine of equity was, however, only applicable to cases where /rom the nature of the contract itself the court had jurisdiction, and did not apply to cases in which the only ground for the intervention of equity was the absenc-e of a remedy at law by reason of the want of writing ; for this would have had the effect of getting rid of the statute in all cases of part performance of verbal contracts ; see Kirlc v. Bromley, 2 Phih G40. In Britain v. Rossitcr, 11 Q. B. D. 123, it was laid down that this doctrine was limited to suits concerning land ; but in Maddison v. AUlcrson, 8 App. Cas. 807, 874, J^ord Sclboruc i)ointod out],that this limitation is Equitable doctrine of part perform ance. PETER V. COMPTON. 309 hardly reconcileablc with the view expressed by Lord Cottcnham in Hammersley v. De Bid, 12 CI. & F. 64, and Lassencc v. Ticrney, 1 Mac. & G. 572 ; and Kay, J., in McMauHH V. Cooke, 35 Ch. D. 681, upon a review of all the authorities, said that " the doctrine of part performance of a parol agreement, which enables proof of it to be given notwithstanding the Statute of Frauds, though principally applied in the case of contracts for the sale or purchase of land or for the acquisition of an interest in land, has not been confined to those cases. Probably it would be more accurate to say it applies to all cases in which a court of equity would entertain a suit for specific performance if the alleged contract had been in writing." As to the recognition of this doctrine of part performance in courts of law before the Judicature Acts, see pei' Kelly, C. B., in Ecclesiastical Commissioners v. Merral, L. B. 4 Ex. 162, and Kidderminster v. Hardwick, 9 Id. 13. See generally the notes to Lester v. Foxcrqft, Wh. & Tud. L. C. in Equity, Vol. I. WAIN V. WARLTERS. EASTER.— U GEO. 3. [reported 5 EAST, 10.] No person can, by the Statute of Frauds, be charged upon any promise to pay the debt of another, unless the agreement upon which the action is brought, or some note or memorandum thereof, be in turiting ; by which word agreement must be understood the consideration for the promise, as well as the promise itself (o). And therefore where one promised in writing to pay the debt of a third person, without stating on what consideration, it was held that parol evidence of the consideration was inadmissible by the Statute of Frauds ; and consequently, such promise appearing to be without consideration upon the face of the written engagement, it was nudum pactum, and gave no cause of action. The plaintiffs declared that at the time of making the promise after mentioned they were the indorsees and holders of a bill of exchange, dated the 14th of February, 1803, drawn by one W. Gore upon and accepted by one J. Hall, whereby Gore requested Hall, seventy days after date, to pay to his. Gore's, order, 56L 16s. M. ; which bill of exchange Gore had before then indorsed to the plaintiffs, and which sum in the bill [men- tioned was at the time of making the promise by the defendant due and unpaid. And thereupon the plaintiffs, before and at the time of making the said promise by the defendant, had retained one A. as their attorney to sue Gore and Hall respec- tively for the recovery of the said sum so due, kc, whereof the defendant at the time of his promise, &c., had notice. And thereupon, on the 30tli of April, 1808, at, kc, in consideration of the premises and that the plaintiffs, at the instance of the defendant, woidd forbear to proceed for the recovery of the said 50/. 16.S. 6ri., he, the defendant, undertook and promised the plaintiffs to pay them, by half-past four o'clock on tliat day, ( take no proceedings to enforce the judgment. The principal sum due on the judgment was wholly paid off" as provided by the agreement. The creditor sought to recover interest,. and the (|ii('sti()ii was whether the agreement barred her claim. Tiie decision of Cave, J., that it did, was upheld hy the Divisional Court, but was reversed by the C. A. on the- ground that the agreement was nudum ^Mctum, and afforded no answer to proceedings upon the judgment. The decision of the C. A. was affirmed in the II. L. CUMBER V. WANE. 329 111 moving to dismiss the appeal Loi'd Selborne said : ^^^rd Sel- " The question is nakedly raised by this appeal, whether your lordships are now prepared not only to overrule as contrary to law the doctrine stated by Sir E. Coke to have been laid down by all the judges of the Connnon l^leas in Pinnd's Case, in 1602, and repeated in his note to Littleton, sect. 344, but to treat a prospective agreement, not under seal, for satisfaction of a debt by a series of payments on account to a total amount less than the whole debt, as binding in law, pro- vided those payments are regularly made ; the case not being one of composition agreed to litter se b}' several creditors. I i)refer so to state the question instead of treating it, as it was put at the bar, as depending on the authority of the case of Cumber v. ]]^a7ie, decided in 1718. It may well be that distinctions which have been held in later cases to exclude the application of that doctrine existed, and were improperly disregarded, in Cinnhcr v. Wane, and yet that the doctrine itself vmay be rightly recognised in Cntnhcrw Wane, and not really contradicted by any later authorities. And this appears to me to be the true state of the case. The doctrine itself, as laid down by Sir E. Coke, may have been criti- cised as questionable in principle by some persons whose opinions are entitled to respect, but it has never been judicially overruled ; on the contrary, I think it has always, since the sixteenth century, been regarded as law. If so, I cannot think that your lordships would do riglit if you were now to reverse as erroneous a judgment of the Court of Appeal proceeding upon a doctrine wbich has been accepted as part of the law of England for 280 years. " The doctrine as stated by PinneVs Case is, ' that paymerit TinneVs Case. of a lesser sum on the day' (it would of course be the same after the day) ' in satisfaction of a greater, cannot be any satisfaction for the whole, because it appears to the judges that b}^ no possibility a lesser sum can be a satisfaction to the plaintift' for a greater sum.' ... If the question be (as in the actual state of the law I think it is) whether con- sideration is or is not given in a case of this kind by the debtor, who pays down part of the debt presently due from him, for a promise b}' the creditor to relinquish, after certain further payments on account, the residue of the debt, I can- not say that I think consideration is given, in the sense in which I have always understood that word as used in our law." In Underwood v. Underivood, (1894) P. 204, the principle 330 CUMBER V. WANE. Distinction where claim is unliquidated. Acceptance of a sum smaller tlian that claimed, a satisfaction. IVilkinson v. Bijers. of Cumber v. Wane and Foakes v. Beer was applied to an agreement to forego all claims under an alimony order in consideration of 10/. paid down. At the date of the agree- ment the arrears due under the order amounted to 161., and the agreement was therefore held to be nudam lyactiun. Later cases have engrafted on the doctrine, that a smaller sum can be no satisfaction for a larger one payable in the same manner, this distinction, that, although, where there is a liquidated debt, the rule laid down in Cumber v. Wane prevails, j^et, if there be not a liquidated debt, but an unliquidated demand, in that case the acceptance of a smaller sum than the plaintiff may have originally claimed will be a satisfaction of his whole demand, and a good answer to an action in respect of it. This distinction seems to have originated in Longridge v. Dorville, 5 B. & Aid. 117. It was discussed in Waiters v. Smith, 2 B. & Ad. 889, and Haigh v. Brookes, 10 A. & E. 309, and approved in Wilkinson v. Byers, 1 A. & E. 106. That was an action of assumpsit. R., as the defendant's attorney, having sued the plaintiff in the Palace Court for 13/. lOs. on a quantum meruit for work done, the plaintiff, while that action was pending, paid the 13/. lO.s. to the defendant himself, who promised that, in consideration of such payment, he would settle with E.. for the costs of the action and indemnify the plaintiff against them ; but the defendant neglected to settle with R., who proceeded with the action and signed judgment against the plaintiff, who was obliged to pay 71. lO-s. costs, and 3/. in endeavouring to set aside the judgment. A verdict was found for the plaintiff, subject to the opinion of the court upon the question wlietlier the payment of 13/. 10.9. could be any consideration for the defendant's promise to indemnify the plaintiff against the costs of the Palace Court action. The court upheld the verdict. " The case," said Parke, J., " may be decided shortly on this ground. If an action be brought on a (jiianfum meruit, and the defendant agree to pay a less sum lluin the demand in full, that is a good consideration for a ])i-omise by the plaintiff to pay his own costs, and proceed no fm-ther. P;;y uient of a less sum than the dciuaud has been held to be no satisfaction in the case of a li(iui(lated del)t ; but where the debt is unliquidated, it is sunicicut. Now, licr(! we ciuniot sny that there was originally any certain deuuind. A juiy, if asked, could not, in my opinion, have said so. In the great majority of CUMBER r. WANE. 331 actions of this nature, for work, labour, and goods sold, it is not a specific sum that forms the subject matter of the action ; and, unless that could have been shown in the present case, there was a good consideration for the i)romise." The principle laid down in Loiifiridfje v. Dorville was ap- proved in Atlec v. Backhouse, 3 M. & W. 651, per- Parke, B.; and in Sihree v. Tripp, 15 Id. 23. In Doan v. Hatcher, 10 A. it E. 121, a plea of payment of 6/. 10s. in satisfaction of 200^. was held bad after verdict. No reason is assigned for the decision, but probably it ma}- have proceeded on the ground that the plaintiff's demand (which was for use and occupation, agistment, and on an account stated), was, primd Whore claim facie, to be considered liquidated, and that, if the amount \Cm{lliQl'^ was in dispute at the time of the accord, that ought to have been pleaded specially. In Wdl^'msoii v. Byers, the special matter appeared on the declaration. Doicn v. Hatcher was doubted by Parke, B., in Cooper v. Parher, 15 C. B. 822. In Edwards v. BaiKjh, 11 M. it W. 641, the declaration stated that disputes were pending between plaintiff and defendant as to whether defendant was indebted to plaintiff' in 173L for money lent, and that, in consideration that the plaintiff" would promise the defendant not to sue him for it, and would accept 100/. in satisfaction, the defendant pro- mised to pay him lOOZ. This was held bad on general demurrer, Lord Abinger saying that it might have been suflicient had the declaration shown some debt due and a Abandonment dispute as to the amount ; see jjfv Parke, B., Sihree v. Tripp, claim, a o-ood 15 M. & W. 36. Accordingly, where the declaration stated consideration 11 IT-' -1 T '"J'" |ironiisinf( unsettled accounts and disputes concernnig them, and to pay fixed mutual claims to the balance, and that, in consideration that ■'*^^'"- the plaintiff' woitld relinquish all claims against the defend- ant, he promised, etc., it was held sufficient; Ijleicelhin v. Lleivellyn, 3 D. & L. 318, Patteson, J. ; and in Cook v. Wrifiht, 1 B. & S. 559, where the plaintiffs, bond fide be- lieving the defendant to be liable to pay them certain expenses, for which lie was not, and believed himself not to So of claim be, liable, threatened him with legal proceedings, and he, by ,,-,j)! i^^^^ j^ way of compromise, before any actual litigation, gave him iji^^t un- some promissory notes, there was held to be sufficient con- sideration for the notes; see also CallisJier v. Biscltojf'sJteim, L. P. 5 Q. B. 449, and Ockford v. Barelli, 20 W. P. 116, cases which were questioned by Brett, L.J., in Ex p. Bdiincr, 17 Ch. D. 480, but approved by the P.JJ. in Miles v. Xeic Zealand Co., 32 Ch. D. 266 ; Harris v. Venahles, L. R. 7 332 CUMBER V. WAKE. So of a suit commencctl. "Withdrawal of a plea. Statement oi account. Sihree v. Tripp. A negotiable security may be taken in satisfaction of a debt of greater amount. Oil] (i|iinii/ii tli.tl liability of one iiaitnor could not be Ex. 235. The suspension or abandonment of an action or suit is presumed to be a good consideration, unless the con- trary distinctly appear ; Smith v. Monteitii, 13 M. & W. 427 ; Mnd so is the withdrawal of a plea, according to Cooper v. Parker, 15 C. B. 822. As to the effect of a statement of an account, see Callender v. Howard, 10 C. B. 290 ; Bridgman V. Dean, 7 Exch. 199; Laycock v. Pickles, 4 B. & S. 497; M'Kellar v. Wallace, 8 Moore, P. C. 378, 401 ; and Perry V. Attwood, 6 E. & B. 691. In Sihree v. Tripp, 15 M. & W. 23, the case of Cumber v. Wane was much observed upon, and the decision qualified to this extent, that a negotiable security may operate, if so given and taken, in satisfaction of a debt of greater amount, the circumstance of negotiability making it, in fact, a diffe- rent thing, and more advantageous than the original debt, which was not negotiable. And Parke, B., observed upon Cnmher v. Wane and Thomas v. Heathorn, 2 B. & C. 477, that "the reasoning of Pratt, C.J., in the former case is certainlj^ not correct, for we cannot inquire into the reasonableness of the satisfaction. But there it did not appear that the note was a negotiable one" {qucere, see the argument) ; " and the point now before the court was not made. In Thomas v. HeatJioiii it does not appear to have been a case of accord and satisfaction ; although the bill accepted by the defendant was a negotiable security, it does not appear that it was given by way of accord and satisfac- tion." In Goddard v. O'Brien, 1 Q, B. D. 37, a cheque given by the debtor himself, and in Bidder v. Bridges, 37 Ch. D. 406, a cheque given by the debtor's solicitor, were held to be a good accord and satisfaction. The negotiable instrument must have been given and tfiken as an accord and satisfaction, and it is a question of fact to be determined in each case whether it has been so given and taken, and to what extent; P^oakes v. Beer, 9 App. Cas. 605 ; Bidder v. Bridges, supra ; Day v. McLea, 22 Q, B. D. 610. The mere fact that the creditor keeps a cheque Avhich has been sent to him in full satisfaction of all demands is not conclusive that there has been an accord and satisfaction, but is only evidence thereof; Day\. McLea, supra : see Ackroyd v. Siititlties, 54 L. T. 130 ; Henderson V. Underwriters'' Ass., 65 Id. 616. It was once thought that when, ui)()n the dissolution of a firm, the partner who remained in trade agreed, as generally happens, to take upon himself the debts of the late firm, a CUMBER r. WANE. 333 creditor of the Avliole body would not, by assenting to this t^ken in satis- , T 1 xi J.- ■ J.' r T ^ •^•l faction of debt arrangement, discharge tJie retiring partner ironi habihty, ,iue. tVom firm a notion principally founded on the decisions in David v, Ellice, 5 B. & C. 196, and Lodge v. Dicas, 3 B. & Aid. 611 ; by which, however, it was not perhaps warranted to its full extent. This doctrine, which was based on a ground liccause no similar to that on which Cumber v. Wane was decided, vi>., consideration ' ' to creditor. that there would be no consideration to the creditor for such an arrangement, had been much complained of, and at last came to be canvassed solemnly in Thonq^son v. Percival, Seats, since 5 B. & Ad. 925. That was an action against J. & C. Per- J^^^'' ''' cival, for goods sold and delivered. J. pleaded bankruptcy, on which the plaintiff as to him entered a nolle lyrosequi. C. pleaded the general issue, and at the trial it appeared that J. and C. had been in partnership, which was dissolved in the usual way, J. to continue in the business, and to receive and pay all debts. At the time when notice of the dissolu- tion was first given to the plaintiff, he had a demand on the firm, for which J. told him he must look to him alone. He afterwards drew a bill on J. for its amount, which was dis- honoured. Upon these facts, a verdict being found for the plaintiff", the court granted a new trial, in order that the jury might be asked whether the plaintiff' had agreed to accept the individual liability of J., instead of the joint liability of J. and C. ; and it was held that, if that question should be answered in the affirmative, the defendant would be entitled to a verdict. " Many cases," said Denman, C.J., delivering the judgment of the court, " ma}' be conceived, in which the sole liability of one of two debtors ma}- be more beneficial than the joint liability of two, either in respect of the sol- vency of the parties or the convenience of the remedy, as in cases of bankruptc}', survivorship, or in various other ways ; and whether it was actually more beneficial in each particular case cannot be made the subject of inquiry." Ace. Winter V. Innes, 4 Cr. & M. 109. In Kirwan y.Kinvan, 4 Tyr. 491, a similar point occurred. That case was decided upon special circumstances ; but from it, as well as from Thomp- son \. Percival, the following rule may be collected: viz., Rule of cases. that mere knowledge of such an arrangement amongst mem- bers of a partnership about to be dissolved will not bind the creditor of the firm, but that his own agreement to accept the transfer of liability will ; and that the question, whether he has or has not entered into such an agreement, is a question proper to be decided by a jury. See Hart v. 334 CUMBER V. WANE, Compositions with creditors, when valid. Debtor must perform his part accu- rately. Must tender composition on day. Unless cre- ditor has re- fused to take less than his demand. Compositions uiid'tr Bank- ruptcy Acts. Alexander, 2 M. & W. 484; Foicles v. Page, 3 C. B. 16; Lyth V. Ault, 7 Exch. 669 ; Re Head, (1893) 3 Ch. 426, (1894) 2 Ch. 236; Rome v. Bradford Bank, (1894) 2 Ch. 32, (1894) A. C. 586. There is another dass of cases which are exempted from the general doctrine laid down in Ciunher v. Wane, though once supposed to fall within it : viz., cases where two or more creditors agree with one another and with their debtor that each of them will accept a composition amounting to less than his entire demand, or will forbear to enforce his claim. Such an agreement, if made by a number of creditors, each acting on the faith of the engagement of the others, is binding upon them, for each has the undertakings of the rest as a consideration for his own undertaking; Good v. Cheesman, 2 B. & Ad. 328; Reai/ v. White, 1 C. & M. 748; Boyd V. Hind, 1 H. & N. 938, 947 ; see Slater v. Jones, L. R. 8 Ex. 186. But if one of the creditors be afterwards refused the benefit held out to him by the arrangement, it ceases to be binding on him ; Garrard v. Woolner, 8 Bing. 258. And if the consideration in any manner fails, the agreement is at an end. Thus creditors, who sign on the faith that other creditors will do so, are not bound if the others hold out ; Reay v. Richardson, 2 C. M. & R. 422. The agreement, if it purports to pass an interest in lands, but wants the formalities required by the Statute of Frauds, does not bind the creditors; Alehin v. Hopkins, 1 B. N. C. 99. Nor is the debtor entitled to the benefit of it, if he neglect to perform accurately what is to be done on his part. Thus he must tender the composition money on the appointed day ; for, as Lord Ellenborough said, in Cranley V. Hillary, 2 M. & S. 120, the party to be discharged is bound to do the act which is to discharge him ; accord. Shipton V. Casson, 5 B. & C. 378 ; Wenhani v. Fowle, 3 Dowl. 43 ; Rosling v. Mucjgeridge, 16 M. & W. 181 ; Evans V. Poivis, 1 Exch. 601 ; Ex p. Peacock, 8 Ch. 682; unless, indeed, the creditor has positively refused to accept less tlian his original demand, in which case he is taken to have waived a tender; Reay v. White, 1 C. & M. 748; see Cooper V. Phillips, 5 Tyr. 170 ; and Hazard v. Mare, 6 H. & N. 434. Provisions for compositions by debtors were contained in the Jiankruptcy Acts, 1849-1869, and are now contained in tlie Acts of 1883 (s. 23), and 1890 (s. 3). Such a com- position is a bar to any proceeding by a creditor, who is liouiid l;y tlie composition, until default by the debtor; CUMBER V. WAIsK. 335 Slater \. Jones, L. It. 8 Ex. 18G ; Caniphell v. //// Tlinnii, 1 C. P. D. 267 ; Seaton v. Deerhnrst, (1895) 1 Q. B. 853. Upon defoult by the debtor, a creditor miglit, under the earlier Acts, use all his former remedies to recover the whole amount remaining due of the original debt ; even if the Act i:)rovided a summary remedy ; Edtrards v. Coomhe, Ij. Pi. 7 C. P. 519; lie Hatton, 7 Ch.' 723; Ex i^. Pmcoc/t, 8 Id. 682; Goldney v. Lording, L. P. 8 Q. B. 182; Neivcll v. Van Praagh, L. K. 9 C. P. 96 ; Edn-ards v. Rancher, 1 C. P. D. 111. Now, bj^the rules made under the Acts of 1883 and 1890, the only remedy of a creditor, upon default, is b}' application to the bankruptcy court ; B. P., r. 210 (1890, r. 33). In London and County Bank v. London and liiver Plate Acceptance ia Bank, 21 Q. B. D. 535, where A. had stolen negotiable -mpUef °" bonds belonging to the defendants, and had, subsequently, without the defendant's knowledge, replaced them by other like bonds of equal value belonging to the i^laintiffs, it was held tliat the defendants ought to be presumed to have accei^led the bonds in discharge of A.'s obligation to them, which obligation existed to A.'s knowledge though not to theirs, because they probably would have so accej^ted the bonds if they had known of the theft and the restitution. The general doctrine in Cumber v. IVane, and the reason General doc- of all the exceptions and distinctions which have been en- an I'd r^^*^ grafted on it, may perhaps be summed up as follows : viz., tions. that a creditor cannot bind himself b}- a simple agreement to accept a smaller sum in lieu of an ascertained debt of larger amount, such an agreement being nudum pactum. But if there be any benefit, or even any legal possibility of benefit, to the creditor thrown in, that additional weight will turn the scale, and render the consideration sufficient to sui^port the agreement. See Steinman v. Magnus, 11 East, 390 ; Bradley v. Gregory, 2 Camp. 383 ; Wood v. Roberts, 2 Stark. 417; Boothbey v. Sou-den, 3 Camp. 175; Sibree v. Trij^p, 15 M. &. AV. 23 ; and Goddard v. O'Brien, 9 Q. B. D. 37, where the above passage was cited with approval. This benefit, however, or possibility of benefit, as pointed out by Ijord Selborne in Foakes v. Beer, "is not that sort of benefit which a creditor may derive from getting payment of part of the money due to him from a debtor who might otherwise keep him at arm's length, or possibly become insolvent, but is some independent benefit, actual or contin- gent, of a kind which might in law be a good and valuable con- sideration for an}' other sort of agreement not under seal." 336 CUMBER V. WANE. Accoi'd must be cxccut('(l. Unless the promise itself be received iii satisfaction. Vicious reasoning of jirineipal case. Aderiuiicy of consideration, Coiiclnsions troMi laies. It is laid down in most of the earlier authorities, that an accord to avail must he executed ; and that doctrine is affirmed, by Baylcy v. Homan, 3 B. N. C. 915 ; see Allies v, Prolnjn, 5 Tyr. 1079 ; Edwards v. Chapman, 1 M. & W. 231 ; Reeves V. Hearne, Id. 326 ; Collinghourne v. Mantell, 5 Id. 292 ; Ujnn V. Bruce, 2 H. Bl. 317 ; Gahrkl v. Dresser, 15 C. B. 622 ; Brown v. Perkins, 1 Hare, 564. On the other hand, it is said in Com. Dig., Accord, B. 4, "An accord with mutual promises to perform is good, though the thing be not performed at the time of action, for the party had a remed}' to compel the performance ; " see Good v. Citeesman, 2 B. & Ad. 328. The rational distinction seems to be, that if the promise be received in satisfaction, it is a good satisfaction ; but if the lyerformance , not the promise, is intended to operate in satisfaction, there will be no satisfaction without performance ; see Reeves v. Hearne, supra ; Buttigieg v. Booker, 9 C. B. 689 ; Evans v. Powis, 1 Exch.601 ; Edwards V. Handier, 1 C. P. D. 111. The same distinction is made in the cases, cited in the notes to Cutter \. Powell, post, vol. ii., where it is held that, where the promise on one side is the consideration for that on the other, performance is not a condition precedent to the right of action. As to the dis- tinction between the terms " discharge," " satisfaction," and "payment," see the cases cited in Bottomley v. Nuttall, 5 C. B. N. S. 134, 135 ; and Cannan v. Wood, 2 M. & W. 465. It can hardly have failed to occur to the observant reader of the principal case that its doctrine is founded upon vicious reasoning and false views of the office of a court of law, which should rather strive to give effect to the engagements which persons have thought proper to enter into, than cast about for subtle reasons to defeat them upon the ground of being unreasonable. Carried to its full extent, the doctrine of Cumber v. Wane embraces the exploded notion, that, in order to render valid a contract not under seal, the adequacy as well as the existence of the consideration must be estab- lished. Accordingly, in modern times, it has been, as appears by tlie preceding part of the note, subjected to modification in several instances. The following is an attempt to exliil)it an outline of the present state of the law as to tlie exoiiciation, satisfaction, or discharge of debts or demands, and i)articularly of those not under seal : — 1. A person bcmnd by a contract not under seal may, before Ijrcacb, be exonerated from its performance by word CUMBER V. WANE. JiJi? of mouth, without any value or consideration; Com. Dig., Exoneration . . *^ • 7^ 7 7-T • r> TT p XT "ctore breach. Action 0)1 the case V2x»i assuDipsit ; Dobson v. liispie, z M. ix JN. 79. A fortiori, it seems that such exoneration may be bought for a less sum than that which would have become payable under the contract. 2. An unliquidated or uncertain and disputed demand Unliquidated ,. , , , ,. 1 demauds dis- overdue may be discharged by payment ot any agreed sum. charged by 3. An overdue demand, whether liquidated or unliqui- iwyment of „ lixed sum. dated, may by agreement be discharged by payment ot a lj ^^^,^^2,1 ^y thing different from that contracted to be paid, though of unliquidated, less pecuniary value ; ('.//., 1,000L by payment of a pepper- pa^^'„';I!nro/a^ corn; PinneVs Case, 5 Rep. 117; Andrew v. Boiujhaij, thing diffe- Dyer, 75; or by a negotiable instrument binding the "'"*• debtor, or a third person, to pay a smaller sum ; Curlewis V. Clark, 3 Exch. 375 ; Goddard v. O'Brien, 9 Q. B. D. 37 ; Bidder v. Bridges, 37 Ch. D. 40G ; and part of a claim may be satisfied by the withdrawal of defence as to the residue ; Cooper V. Parker, 15 C. B. 8'22. Even a new binding con- By binding coiitriict lor tract entered into by the debtor with the creditor for a new n^w con- consideration (see Lynn v. Bruce, 2 H. Bl. 317), to do some- sideration to ^ ^ 1 1 1 1 1 ■ do something thing different from what the debtor was bound to do by his ditierent, original broken contract, e.g., a contract that one of two joint whether per- '^ > ./ ' T 1 / r 7 formed or not. debtors shall alone remain liable and pay the debt {Lyth v. Ault, 7 Exch. 669), may, if the new contract itself, not merely the performance of it, be agreed to be taken in satisfaction and discharge of the breach, operate according to the intention of the parties in such discharge, whether performed or not ; the remedy for its breach being a thing of some value, and being different from the original debt ; Evans v. Poicis, 1 Exch. 601 ; Curlewis v. Clark, 3 Id. 375 ; Flockton v. Hall, 16 Q. B. 1039. 4. There is authority for saying that, at common law, a Demands on liquidated demand, founded upon a bill of exchange or pro- change waived missory note, even though overdue, might be forgiven by by word of word of mouth; and if so, a fortiori, such a demand might be forgiven upon payment of a less sum than that secured by the bill or note ; see Foster v. Dawher, 6 Exch. 839 (in the marginal note of which, for "before" read "after"), and Cook v. Lister, 13 C. B. N. S. 543, 593, per Willes, J. ; but see Smith v. Gordon, C. & E. 105. By s. 62 of the Bills of Exchange Act, 1882, a bill or Bills of Ex- note is discharged, if the holder, at or after maturity, abso- ^gg^f 1 62.' lutehj and unconditionally j:enounces his rights against the acceptor or maker either in writing or by delivering up the S.L.C. — VOL. I. 22 mouth. CUMBER V. WANE. Wliere act of third person new con- sideration. Payment bj' third person with consent of debtor. LirpiidHtcil dciii.'iiid oviT- diic cannot \>c instrument ; and in the same way the holder ma}' renounce his rights against any party to the instrument before, at, or after maturit}'. But it seems that a bare agreement, even in writing, to take payment otherwise than as provided by the bill or note, is no answer to a claim thereon ; McManus V. Bark, L. R. 5 Ex. 65. 5. The contract or other act of a third person, introducing a new consideration, may operate in discharge of a demand arising out of an}' sort of contract not under seal, whether liquidated or unliquidated, if so agreed between such third person and the debtor and creditor ; see Kemp v. Watt, 15 M. & W. 672 ; Henderson v. Stohart, 5 Exch. 99 ; but it must be clear that the creditor agreed to accept the contract or act of the third person in satisfaction of the liability of his debtor ; see Cochrane v. Green, 9 C. B. N. S. 448 ; Liversedge v. Broadhent, 4 H. & N. 603. Upon this rests the validity at conimon law of a composition with creditors, by which two or more creditors agree with one another and the debtor to take less than the full amount of their respec- tive debts in discharge of all. In like manner it seems that payment by a third person, not bound by the contract, with the assent of the debtor, of the amount due, or even less (see Welhy v. Drake, 1 C. & P. 557), may operate to discharge the whole debt, if so intended. It is said, " with the assent of the debtor," because, although by the civil law a stranger might discharge a debt by jjayment without the knowledge and even against the wish of the debtor, yet, according to the authorities, it seems that, by the law of England, the precedent or subsequent assent of the debtor (if capable of assenting) is necessary to the discharge of the debt ; see Jones V. Broadhurst, 9 C. B. 173; Belshaw v. Bush, 11 Id. 191 ; James v. Isaacs, 12 Id. 791 ; Goodwin v. Cremer, 18 Q. B. 757 ; Simpson v. Eggington, 10 Exch. 845 ; and Walter v. James, L. 11. 6 Ex. 124. Quaere, whether such assent of the debtor ought not to be presumed, the act of payment being for his benefit ; see Cook v. Lister, 13 C. B. N. 8. 543, per Willes, J. ; Pellatt v. Boosey, 31 L. J. C. P. 281 ; and London and County Bank v. London and liiver Plate Bank, 21 Q. B. D. 535, cited ante, p. 335. At any rate the debtor may generally ratify the payment as made on his behalf; Simpson y. Eggington, supra ; but see L/(cas V. Wilkinson, 1 H. & N. 420. 6. A liquidated and undisputed money demand, of which the day of payment is i)ast, not founded upon a bill of ex- CUMBER l\ WANE. 889 change or promissory note, cannot, even with tlie consent satisfied by of the creditor, be discharged h}' mere pa\'nient by the siualler sum iu debtor of a smaller amount in money in the same manner as same manner, he was bound to pay the whole ; Foakes v. Jher, ante, p. 828. 7. A contract to do an act in futuro, in satisfaction of a Promise re- past breach of contract resulting in damages, whether liqui- jjotltself "^ dated or unliijuidated, is revocable, and indeed inoperative, taken in tmtil actual performance, unless the contract itself, and not ^'^ ^^ ^'^ ^°"' merely the performance of it, is agreed to be accepted in satisfaction ; Lyjtn v. Bruce, 2 H. Bl. 317 ; Bai/leij v. Honian, 3 B. N. C. 915 ; Graham v. Gibson, 4 Exch. 768. Yet such a contract may be enforced by action, where there is a new Enforceable consideration, such as staying an action brought : Crowther ^\ ^^tion ' ./ o o ^ where new v. Farrer, 15 Q. B. 677 ; see Jonassolin v. Ransome, 3 consideration C. B. N. S. 779, where the court allowed an executory ac- ^°'" ^^• cord to be pleaded as an equitable defence. 8. A contract, though for valuable consideration, to sus- Contract to pend for a time rights of action once vested, is not a defence ygs[g°,i \.{,r\xt at common law, but only ground for a cross action; for of action for- since a right of action if barred for however short a period "nTy^fo^-^ cross is in law extinguished, to give effect to this defence would action. be to hold the right of action wholly destroyed contrary to the intention of the parties ; Ford v. Beech, 11 Q. B. 852 ; Wehh V. Salmon, 13 Id. 886, 894, 3 H. L. C. 510 ; Frazer V. Jordan, E. B. & E. 8 ; Eaij v. Jones, 19 C. B. N. S. 416. Semble, such a contract would have been a defence on equit- able grounds, under the C. L, P. Act, 1854, s. 83, to an Common Law action brought in violation of it : for in Chancery the breach ^'°'^°lo"'? ^ . . "^ . Act, lSo4. of an express negative promise is usually restrainable b}^ perpetual injunction ; see jjcr Crompton, J., Keyes v. Elkins, 5 B. & S. 240 ; Lumley v. Wagner, 1 I)e G. M. & G. 604 ; Peto V. Brighton R. Co., 32 L. J. Ch. 677 ; Norton v. Wood, 1 Buss. & M. 178; but in cases in which the injunction would onl}^ be granted conditionally, on terms which a court of law had not jurisdiction to enforce in the action, such a contract was not an equitable defence ; see Flight v. Grey, 3 C. B. N. S. 320. It is, however, a good defence now under the Judicature Act, 1873, s. 24, sub-s. 5 of which expressly Judicature provides that every matter of equity, on which an injunction ^^■^' ^^^'^^ against the prosecution of proceedings might have been obtained, before that Act, either unconditionall}', or on any terms or conditions, may be relied on by wa}^ of defence thereto. Even at common law, if the parties bj' their own Pleadable in covenant stipulate that such a contract may be pleadable in bar by cove- ■^ ./ X naut 01 party. 22 2 uo CUMBER V. WANE. Release with conditions subsequent. Distinction where stipula- tions qualify original right. Where ascer- tainment of claim by arbi- tration a con- dition prece- dent to suit. bar in the event of an action being brought, it then operates as a defeasance ; see Gibbons v. Vouillon, 8 C. B. 483 ; Legg V. Cheesehnmgh, 28 L. J. C. P. 209 ; Walker v. Nevill, 3 H. & C. 403 ; and the distinction is to be observed between contracts to suspend and thereby extinguish rights of action, and those which operate onh' as releases with a condition subsequent, b}' which latter the right of action is not ex- tinguished, but may be put in force on failure of the con- dition ; see Newington v. Levy, L. R. 5 C. P. 607, 6 Id. 180; Slater v. Jones, L.' R. 8 Ex. 186 ; Jeffs v. Day, L. R. 1 Q. B. 372 ; Edwards v. Coomhe, L. R. 7 C. P. 519 ; Edwards v. Handier, 1 C. P. D. 111. Such was the effect of the statutory accord in cases of composition under the Bank- ruptcy Act, 1869, s. 126, which differed from a common law accord and satisfaction in that the right of action was barred by the agreement until default, and yet revived upon default; Ibid. ; see ^jer Lord Blackburn, Breslaiier v. Broun, 3 App. Cas. 705 ; and ante, p. 334. An absolute covenant not to sue is, in order to avoid circuity of action, pleadable as a release ; see 2 Wms. Saund. 140, 447, ed. 1871 ; Willis v. De Castro, 4 C. B. N. S. 216. As to stipulations which do not suspend the remedy, but qualify the original rights, see Foley V. Fletcher, 28 L. J. Ex. 100 ; or suspend the operation of agreements, Wallis v. Littel, 11 C. B. N. S. 369. The rule above mentioned, that a cause of action once barred is extinguished, does not appl}- to the right of a landlord, who has distrained, to sue for rent remaining unsatisfied after the distress has been realised, though he can bring no action while he holds the distress ; Lehain v. Philpott, L. R. 10 Ex. 242 ; Philjwtt v. Lehain, 35 L. T. 855. So also in the case of distress damage feasant ; see Boden v. Eoscoe, (1894) 1 Q. B. 608. In Scott V. Avery, 5 H. L. C. 811, a proviso that the assured should not be entitled to sue on his policy until the amount of his claim was ascertained by arbitration, was held valid ; for though parties cannot by mere agreement oust the jurisdiction of the courts, it is nevertheless competent for them to agree that a reference to arbitration and an award thereunder shall be a condition precedent to a right of action. Whether or no a particular agreement creates such a condition precedent is always a question of construction ; Collins v. Lock, 4 App. Cas. 674, 689. For instances of agreements held to create a condition precedent CUMBER V. WANE. 341 see Scott v. Livciyool, 3 De G. & J. 334 ; Braunstein v. Accidental Co., 1 B. & S. 782 ; Trcdu-en v. Hohnan, 1 H. & C. 72 ; Sharpc v. San Paulo, 8 Cli. 597 ; Vincij v. Bignold, 20 Q. B. D. 172 ; Tranior v. Phoenix Co., 65 L. T.' 825 ; Scott V. Mercantile Accident Ins. Co., 66 Id. 811 ; Caledonian Ins. Co. V. Gilmour, (1893) A. C. 85. For instances of agreements held not to do so, on the ground that they were void, as attempts to absolutely oust the jurisdiction of the courts, see Horton v. Sayer, 4 H. & N. 643 ; Lee v. Page, 30 L. J. Ch. 857 ; Edwards v. Aherai/ron Soc, 1 Q. B. D.' 563 : or on the ground that they were merely collateral agreements, see Roper v. Lcndon, 1 E. & E. 825 ; Alexander v. Cain- pell, 41 L. J. Ch. 478 ; Dawson v. Fitzgerald, 1 Ex. D. 257 ; Collins V. Lock, supra. An action lies for breach of a colla- teral agreement to refer ; Livingston v. Ilalli, 5 E. it B. 132 ; but only nominal damages are recoverable if the plaintiff would not have been entitled to succeed on the refevence ; Brunsdoi v. Stai)ies L. B., C. Sz. E. 272. However, the courts have power, under the Arbitration Staying pro- Act, 1889, to stay the proceedings, where a party to a written amier Arbi- agreement to refer commences any proceedings in respect tratiou Act, of any matter agreed to be referred, if prompt application is made for that purpose ; see s. 4. 9. With respect to contracts under seal, they in this Contracts respect differ considerably from those not under seal. Generally speaking, a liability under them could not at the common law be discharged by a mere licence not under seal though for valuable consideration, or even by accord and satis- faction before breach ; Berwick v. Oswald, 1 E. & B. 295 ; Spence v. Healcij, 8Exch. 668 ; and after breach, oidy those claims arising out of them which sounded in damages, and not debts accruing merely by the execution of tlie deed, could be the subject of accord and satisfaction ; Blake's Case, 6 Rep. 44 ; Selw. N. P., Covenant, vii. 1 ; Bac. Abr., Accord. (B.). Contracts under seal, to pay liquidated amounts in money, before 4 Anne, c. 16, s 12, could only be satisfied, so as to enable the debtor to defend himself in a court of common law, b}' payment on the day and an acquittance under seal, which, if tendered by the debtor, the creditor was bound to execute ; see Husband v. Davis, 10 C. B. 645, as to the effect of that statute. Payment in part after the day, or in accord and satisfaction, was only a ground of equitable relief; Steeds v. Steeds, 22 Q. B. D. 537. The case of SmitJi v. Troicsdalc, 3 E. & B. 83, in which an 342 CUMBER V. "WANE. Judicature Act. Actus curicc neminifacit injuriam. extension by parol of the time stipulated for the performance of a contract under seal was upheld upon peculiar grounds, seems to tout]! the extreme limit of the common law. However, vmder the Judicature Act, 1873, s. 24, if a defendant claims relief upon any equitable ground against any deed, instrument or contract, or alleges any ground of equitable defence to the plaintiff's claim, all branches of the High Court must now give to such ground of relief so claimed, or such equitable defence so alleged, the same effect, by way of defence to the plaintiff's claim, as the Court of Chancery ought to have given to it ; see Steeds v. Steeds, 22 Q. B. D. 537. The second point decided in this case is an exemplification of that maxim of law — Actus curice nemini facit injuriam; for the delay is tlie act of the court, therefore the parties should not suffer by it. Ace. Toidmin v. Anderson, 1 Taunt. 385. See Lanman v. Audley, 2 M. & W. 535 ; Vauglian v. Wilson, 4 B. N. C. 116; Evans v. B.ees, 12 A. & E. 167; Miles v. Bough, 3 D. & L. 105 ; Harrison v. Heathorn, 6 Scott, N. E. 794; Mdcs v. Williams, 9 Q. B. 47 ; Moore v. Roberts, 3 C. B. N. S. 844. The practice only prevails in cases of delay by the act of the court ; Wdkes v. Perks, 5 M. & Gr. 376 ; Fishmongers' Co. v. Robertson, 3 C. B. 970; Seymour V. Greenwood, 30 L. J. Ex. 189 ; Heathcote v. Wing, 25 L. J. Ex. 23 ; Turner v. L. d- S. W. R. Co., 17 Eq. 561. ARMORY V. DELAMIRIE. HILARY, 8 G. \.—IN MIDDLESEX, CORAM PRATT, C.J. [reported 1 STRANGE, 504.] Tlie finder of a jewel may maintain trover for a conversion thereof by a wrong-doer. A master is answerable for the loss of a customer's property intrusted to bis servant in the coui-se of his business as a tradesman. Wbere a person wbo has wrongfully converted property will not prodvice it, it shall be presumed, as against him, to be of the best description. The plaintiff, being a chimney-sweeper's boy, found a jewel, and carried it to the defendant's shop (who was a goldsmith) to know what it was, and delivered it into the hands of the apprentice, who, mider a pretence of weighing it, took out the stones, and calling to the master to let him know it came to three-halfpence, the master offered the boy the money, who refused to take it, and insisted to have the thing again ; w'here- upon the apprentice delivered him back the socket without the stones. And now in trover against the master these points were ruled : — 1. That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover («). 2. That the action well \^y against the master, who gives a credit to his apprentice, and is answerable for his neglect. 3. As to the value of the jewels, several of the trade were examined to prove what a jewel of the finest water that would fit the socket should be worth ; and the Chief Justice directed the jury, that unless the defendant did produce the jewel, and show it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages, which they accordingly did. («) 1 Com. Dig., Action upon Trover, (B) 310. 344 ARMORY V. DELAMIRIE. Bare posses- sion is suffi- cient title against a wrong-doer. Plea of no jiroperty in plaintiff means none as against defendant. Origin of doctrine that a command ailcgeil in ])lcadirig is traversable. This is the case usually referred to for the purpose of illustrating that leading principle of law, that bare possession constitutes a sufficient title to enable the part}^ enjoying it to obtain legal remedy against a mere wrong-doer. It would be ahnost a waste of time to enumerate the decisions by which this proposition is enforced and explained. Two of the most remarkable are, Sutton y. Back, 2 Taunt. 302; and Burton v. Hughes, 2 Bing. 173, where, property having been lent to the plaintiff under a written agreement, it was nevertheless held that he might maintain trover for it with- out producing that agreement ; for though, if it had been necessary to prove the nature of his interest in it, the rules of evidence would have rendered the production of the writing indispensable, still as possession is a sufficient title against a wrong-doer, it was sufficient to show his possession without inquiring into the terms of it. The qualified right of a bankrupt to after-acquired property also strikingly illustrates this position ; see Herbert v. Sayer, 5 Q. B. 965 ; Cohen v. Mitchell, 25 Q. B. D. 263 ; Re Clark, (1894) 2 Q. B. 393. On the general question, see also Matson v. Cook, 4 B. N. C. 392 ; Elliott v. Kemp, 7 M. & W. 306 ; Bridges v. Hawkesworth, 21 L. J. Q. B. 75 ; Harper v. Charlesworth, 4 B. & C. 574; Northam v. Boivden, 11 Exch. 70 ; Every v. Smith, 26 L. J. Exch. 344 ; Jeffries v. G. W, R. Co., 5 E. & B. 802 ; Buckley v. Gross, 3 B. & S. 566 ; Bourne v. Foshrooke, 18 C. B. N. S. 515. For the effect of the plea denying plaintiff's title in actions of trover and trespass, under the system of pleading abolished by the Judicature Act, 1873, see Nicholls v. Bastard, 2 C. M. & R. 662 ; Howell v. White, 1 M. & Bob. 400 ; Leake v. Loveday, 4 M. & Gr. 980 ; Mayheiv v. Herrick, 7 C. B. 229 ; Jones v. Chajyman, 2 Exch. 803. It was in consequence of the doctrine thus affirmed in Armory \. Delamirie, that mere possession is sufficient against a icrong-doer, that it was decided in Trevelian v. Pyne, 1 Salk. 107, and Chamhers v. Donaldson, 11 East, 65, in opposition to several old authorities, that a command, alleged in pleading, is traversable. In Trevelian v. Pyne, the action was replevin for cattle. Cognizance, by defendant as bailiff to S. Pica in har, that defendant was not bailiff to S., and held good on demurrer; for though S. had a right to take tlie cattle, yet a stranger without his authority could not. Arc. Rohson v. Douglas, Freem. 536 ; George v. Kincli, 7 Mod. 481. It was thought, indeed. ARMORY V. DELAMIRIE. -34.5 long after the decision in TrevcUan v. Pipie, that in trespass qiiare delusion /regit, if the defendant justified under the command of A., in whom he aUeged the freehohl to be, the plaintiff' couhl not in liis replication traverse the command, because that wouhl admit the freehold to be in A. : and if the freehold were in A., the i)laintift' ought not to maintain his action. But this distinction is now completely ex})loded, for in Chambers v. Donaldson, 11 East, 65, the defendants to an action of trespass qaare clatisuni frerjit, pleaded that the locus in quo was the freehold of P., and that they by his command broke and entered the same. The plaintiff traversed the command, and on demurrer the replication was held good upon the express ground that the defendant, if he had not the command of P., was a wrong-doer, and that as against a wrong-doer the plaintiff's possession, even supposing him to have no title, would be sufficient to maintain the action. See Heath v. Milward, 2 B. N. C. 98 ; Qarnalni v. Wellnj, 8 A. & E. 872 ; Brest v. Lever, 7 M. & W. 594. On the same principle rests the well-known rule in actions That ])laintiff' of ejectment, that the plaintiff must recover by the strength of JInfst recover his oivn title, not the ircakuess of Iris antafionisfs ; for no one by strength of can recover in ejectment, who would not be entitled to enter without bringing ejectment, and any person entering on the possession of the tenant, unless he have a better title, is a wrong-doer. It has been suggested that the doctrine that possession Possessory is sufficient title as against a wrong-doer has no application Heeusee. to cases in which things lying in grant are claimed under the mere possessory title of a licence ; and that, conse- sequently, a mere licensee, who, according to the rule of Wood Y. Leadbitter, 13 M. & W. 838, has no title as against his licensor, cannot maintain an action against a wrong-doer for an interruption to his enjoyment under his licence. See Gale on Easements, 411. The cases of Whaley v. JJ^hakyv. Laing, 2 H. & N. 476, and Hill v. TujijJer, 2 H. & C. 121, have been cited in support of this view. In the former case, the declaration alleged that the plaintiffs were possessed of mines, and of engines for working them, and had and enjoyed the benefit of the waters of a canal near the engines to supply them with water for working them, and that the water used and ought to run and flow witJiout being polluted, but that the defendant wrongfully joolluted the water near the place at which the supply of it for the engines was Laing. 346 ARMORY V. DELAMIRIE. drawn, and thereby damaged the engines, and mterrupted the working of the mines. The pleas were (1) not guilty, and (2) a traverse of the allegation printed above in italics. The Court of Exch. gave judgment for the plaintiff. The case was taken up to the Court of Error, and there the judgment was ultimately reversed by four judges against two, on the ground that the declaration was bad, in arrest of judgment, for want of any allegation to the effect that the plaintiff's were entitled to the flow or enjoyment of the benefit of the water ; see 3 H. & N. 675, 901, note (a). This case does not decide the point in question, as, in the opinion of one judge at least of the majority — Williams, J., — it was consistent with the declaration that the plaintiff was a wrong-doer himself, there being no averment of right. Upon this point it did not in effect decide more than that the mere fact of taking the water did not give the plaintiffs a prima facie title. (See per Bramwell, B., Stockport V. Potter, 3 H. & C. 300.) ^^if^ V. In Hill V. Tupper, it was held that the grant by the pro- Til DDCT • • prietors of a canal of an exclusive right to let boats for hire on it, did not confer on the grantee a right of action against other persons using the canal for the same purpose. The ground of the decision was that it is not competent for a grantor of land to create novel and extraordinary incidents unconnected with the enjoyment of the land, and annex them to it so as to constitute a pro]3erty in the grantee. (See Acroyd v. Smith, 10 C. B. 164.) But the case is very far from deciding that, assuming the right claimed to have been one capable of existence in law, the licensee of such a right would have no action against a wrong-doer for infring- ing it. It is submitted that, wherever the right claimed is one which may by law be made the subject matter of property, then enjoyment of such a right, though only under a licence revocable by the grantor, is as against a wrong-doer a sufficient title to enable the licensee to maintain an action upon it. See Nuttall v. Bracewell, L. R. 2 Ex. 1. But when the right claimed is one which the law does not recog- nize as capable of existence, then the grant of such a right can operate only as a licence between grantor and grantee, and can confer no property as against third persons. See further, Stockport v. Potter, 3 H. & C. 300. PriwAfiirk So when th(! right cljiimed is one in itself capable of being ,,,"^j„^(. attiiclicd by grant or prescni)tion to property, mere i)0sses- \vr<)iig- ratity acts Melhado v. Porto li. Co., 9 Id. 503 ; Re Empress Co., 16 Ch. 350 ARMORY V. DELAMIRIE. done before incorporation ; or \dtra vires. Ratification by personal representa- tives. Rule where rights of third persons affected. llatifi cation, how shown. D. 125 ; Be Northumberland Avenue Hotel, 33 Id. IG ; not- withstanding the observations of Malins, V.-C, in Spiller v. Paris Co., 7 Id. 368 ; and a company is not bound b}^ the ratification by its directors of acts which it would be ultra vires in the directors to authorize ; nor can the members ratif}' acts which it would be ultra vires in the company to authorize ; see Riche v. Ashhury Co., L. R. 9 Ex. 224, 7 H. L. 653 ; Evans v. Smallcomhe, L. R. 3 H. L. 249 ; Phos- Ijliate Co. V. Green, L. R. 7 C. P. 43 ; Irvine v. Union Bank of Australia, 2 App. Cas. 366 ; and the notes to Collins v. Blantern, i^st, pp. 378 — 381. An executor can ratify an act done by the direction of the testator though done after his death, WJiiteliead v. Taylor, 10 A. & E. 210 ; and an administrator can ratify an act done before letters of administration had been granted to him, Foster v. Bates, 12 M. & W. 226 ; see Bogers v. Dejoncourt, 1 Ir. C. L. R. 482 ; the trustee of a bankrupt can ratify an act done before his appointment, Hull v. Pickersgill, 1 B. & B. 282 ; and a plaintiff can ratify the bringing of an action in his name, Ancona v. Marks, 7 H. & N. 686. Where the ratification is to affect the interests of third persons, it seems that it ought to take place whilst the prin- cipal has power to do the act himself ; for instance, in the case of a notice to quit, a landlord should ratify it before the time for giving the notice has expired, Doe v. Goldwin, 2 Q. B. 143 ; Ancona v. Marks, 7 H. & N. 686, jjcr Martin, B. ; or, in the case of stoppage i)i tra)isitu, before the transit is at an end, Bird v. Brown, 4 Exch. 786: see Jardine \. Leathley, 3 B. & S. 700. And it seems that a ratification cannot divest a right vested in possession in a third person before the ratification, IJonelly v. Popham, 1 Taunt. 1 ; Holland v. Kiny, 6 C. B. 727; see Lyell v. Kennedy, 18 Q. B. D. 796 ; and qmere, whether it can make the previous act of a third person wrongful ; see Perry v. Skinner, 2 M. & W. 471, and Bolton v. Lambert, 41 Ch. D. 295, 307, per Cotton, L.J. The ratification may be by any means showing the election of the principal to treat the act as his, as by receipt of the ])roceeds of a sale, Hunter v. Parker, 7 M. & W. 322 ; Sec- retary for India v. Kamachec, 7 Moo. Ind. App. 476 ; or by express approbation, Baron v. IJenman, 2 Exch. 167; Hase- Icr V. Lemoyne, 5 C. B. N. S. 530 ; see Fitzmaurice v. Bayley, 6 E. & B. 868; Benter v. Flcctric Co., Id. 346 ; or, in some cases, even by tacit acquiescence, The Bolla, 6 Rob. 364, a AKMORY V. DELAMIRIE. 351 case resting upon peculiar grounds ; lurilis v. De Barnard, 3 Moo. P. C. 425 ; Cameron v. Ki/te, 3 Knapi), 332 ; Wall v. Cockerell, 29 L. J. Cli. 81G. In order to make tlie ratifica- Must ho made tion binding it must be made witli full knowledge of tlie knowledge • nature of the act committed, or with the intention to adopt ?r with that act ill any event, Freeman v. liosher, 13 Q. B, 780 ; ratify in any Eastern Counties li. Co. v. Broom, 6 Exch. 314 ; lioe v. Bir- event. kenhead R. Co., 7 Id. 36 ; Gauntlett v. King, 3 G. B. N. S. 59 ; Phosphate Co. v. Green, L. R. 7 C. V. 43, 57, i^er Willes, J.; La Banqiic Jaeques-Cartier v. La Banqiie d'Kparg)ie, 13 App. Cas. 111. A startling doctrine as to becoming a felon (not merely an Ratification of accessory after the fact) by ratification, was laid down by some of the judges in R. v. Woodward, 31 L. J. M. C. 91 ; but as there was no complete act of felony before the alleged ratification the case is sustainable upon this ground, which Erie, C.J., and Keating, J., adopted. In Brook v. Hook, L. Pw 6 Ex. 89, a person forged the defendant's name upon a promissory note in favour of the plaintiff; and the defend- ant, while the note was current, in order to prevent a prose- cution of the forger, signed a memorandum to the effect that he held himself responsible for the note, but at the same time denied that the note was his or made by his authorit}'. The Court of Exch., diss. Martin, B., held that the memo- randum was not a ratification so as to make the defendant liable on the note, since the note being a forgery icas in its incejjtion void, and therefore incapahle of being ratified, and they laid it down that no authorit^v was to be found that an act which is in itself a criminal offence is capable of ratifica- tion. See also per Burton, J., Wilkinson v. Stoney, 1 Jebb & S. 509 ; per Crompton, J., Ashpitel^.Bryan, 32 L. J. Q. B. 95; and the opinions in Williams v. Bai/leg, L. P. 1 H. L. 200. The second point in the principal case is that a master is Second point, answerable for the act or default of his servant in the course jnaster for of his employment. The question is in every case one of ^"^t °f servant. implied authority. The servant is taken to have the im2:)lied authority of his master for every act done in the course of his employment. " The law is clear that where a servant, acting within the scope of his employment, does an act negligently or with excessive violence, the master is answer- able for the consequences ; " jjcr Blackburn, J., Bayley v. M. S. i& L. Li. Co., L. R. 8 C. P. 148 ; see Coleman v. Riches, 16 C. B. 104 ; Patten v. Rea, 2 C. B. N. S. 606 ; Seymour v. Greenu-ood, 6 H. & N. 359, 7 Id. 355 ; Bartons- 352 ARMORY V. DELAMIRIE. Jiill Co. V. Bcid, 3 Macq. 266 ; Walker v. S. E. R. Co., L. R. 5 C. P. 640 ; Bayley v. M. S. d- L. R. Co., L. K. 7 C. P. 415, 8 la. 148 ; BoUnghroke v. Sa-indon L. B., 9 Id. 57.5 ; The Apollo, (1891) A. C. 499 ; Ruddiman v. Smith, 60 L. T. 708 ; Richards v. West Middlesex Co., 15 Q. B. D. 660 ; Lowe V. G. N. R. Co., 62 L. J. Q. B. 524 ; Dyer v. Munday, (1895) 1 Q. B. 742. Scope of The test, therefore, is whether the servant was acting enip ojmen . ^^-ifjiif^ f]^^, sco2)e of his em2)loyiiicut. If he was, it matters not that the master expressl}" forbade the servant to do the par- ticular act. " The law casts upon the master a liability for the act of the servant in the course of his emplo3'ment ; and the law is not so futile as to allow a master, by giving secret instructions to his servant, to discharge himself from liability; " Limims v. L. G. 0. Co., 1 H. & C. 526, 539, per Willes, J. ; see Belts v. De Vitre, 3 Ch. 429 ; Black v. Christcliurch Finance Co., (1894) A. C. 48 ; but see also Charleston y. London Trams, 36 W. E. 367. When master A master is not liable for the act of his servant if the todo act*^*^^ master himself had not power to do the act in question, for comijlaiued {^i that case he cannot be taken to have impliedly authorized his servant to do it ; Poulton v. L. tt S. W. R. Co., L. R. 2 Q. B. 534. This is the governing distinction in cases where the liability of railway and similar companies for acts committed by their servants has to be determined ; see Poulton V. L. d- S. W. R. Co., supra; Goffy. G. N. R. Co., 3 E. & E. 672 ; Furlong v. S. London Trams, 48 J. P. 329 ; Charleston v. London Trams, 36 W. R. 367 ; Smith v. N. Metrop)olitan Trams, 55 J. P. 630. If such a company has power to arrest in a particular case, and its servant, acting within the scope of his employment, arrests a j)erson under the mistaken belief that such a case has arisen, the com- pany is liable; Poulton y. L. d S. W. R. Co., supra; see Goffy. G. N. R. Co., supra. I'rotection of A servant has implied authoiity to do all things necessary master's ^ protect his master's property which has been entrusted to his care ; but he can have no implied autliority to arrest a person upon suspicion of an attempt to steal, such an arrest being made, not to protect property, but to punish the supposed offender; Allen v. L. d S. W. R. Co., L. R. 6 Q. B. (')i'>; Bank of N. S. ]Vi(lc>i v. Owston, 4 App. Cas, 270: Ahrahams v. Deakin, (1891) 1 Q. B. 516; Edwards V. /.. <(• .V. W. R. Co., L. R. 5 C. P. 445 ; Stevens v. Ili.iiahrhcood, 55 J. P. 341. property. ARMORY V. DELAMIRIE. 853 It is often a mattei' of some nicety to determine whether, in doing a particular act, a servant is acting within the scope of his emplo3'ment, especially in the case of coachmen and carmen ; see Mitchell v. Crassiceller, 13 C. B. 287 ; Joel V. Morison, 6 C. & P. 503, j)^'>' Parke, B. ; Sleath v. Wilson, 9 C. & P. 607 ; Page v. Defrics, 7 B. & S. 137 ; Whatman V. Pearson, L. R. 3 C. P. 422 ; Storeij v. Ashton, T.. E. 4 Q. B. 476 ; liayner v. Mitchell, 2 C. P. D. 357 ; Milner v. G. N. li. Co., 50 L. T. 367. This question must be deter- mined according to the facts in each case. The relation of master and servant must exist between Relation of the person whose act or default is complained of and the "erv'^aiit nmst person sought to be made liable ; Lucas v. Mason, L. R. exist. 10 Ex. 251 ; Ttieker v. Axhriclge, 53 J. P. 87. The question often arises whether the person, whose act or default is complained of, is the servant of the defendant, or of a third person. The general rule is that the master is the person who has the right at the moment to control the manner in which the servant shall act ; see Dahjell v. Tyrer, 28 L. J. Q. B. 52 ; Murray v. Cnrrie, L. R. 6 C. P. 24 ; Donovan v. Laing, (1893) 1 Q. B. 629, and the cases there collected. As to the liability of a master in an action of deceit for Servant's the fraudulent misrepresentations of his servant, see notes to Pasley v. Freeman, jjost, vol. ii. Under the 6 & 7 Vict. c. 86, the registered proprietor of a Liability of cab in London is responsible to the public for the acts and owners. defaults of the driver while plying for hire, as if the driver were the proprietor's servant, whatever may in fact be their position towards one anotlier; Powles v. Hider, 6 E. & B. 207 ; Venahles v. Smith, 2 Q. B. D. 279 ; King v. London C(d> Co., 23 Id. 281 ; Keen v. Henry, (1894) 1 Q. B. 292. King v. Spurr, 8 Q. B. I). 104, must now be taken to have been overruled. The third point decided in this case is an illustration of Third point, , , , ,. . , • 1- i 1 1 • J J. omnia presu- that favourite niaxnn ot the law, omnia jyresnmuntur contra .nuntMr contra sjioliatorem ; which signifies that if a man, by his own spoliatorcm. tortious act, withhold the evidence by which the nature of his case would be manifested, every presumption to his disadvantage will be adopted. Thus, if a man withhold an agreement under which he is chargeable, it is presumed to have been properly stamped, until the contrary appears ; Crisp V. Anderson, 1 Stark. 35; Crowther v. Solomons, 6 C. B. 758 ; see also A. -G. v. Dean of Windsor, 24 Beav. 679. S.L.C. — VOL. I. 23 354 ARMORY V. DELAMIRIE. So, if goods are sold without any express stipulation as to their price, and the seller refuse to give any express evidence of their value, they are presumed to be worth only the lowest price for which goods of that description usually sell ; unless the buyer himself be shown to have suppressed the means of ascertaining the truth, for then a contrary presumption arises, and they are taken to be of the very best description ; Clunnes v. Pczzcy, 1 Camp. 8, et notas. Xon-prodnc In Braitlnvaite v. Coleman, 1 Har. k W. 223, the K. B. tion oi lctt( IS, j-£fgj.g(l ^^-^ ^|-,g application of this principle. It was an action by the indorsee of a bill against the drawer, and the only evidence of notice of dishonour was the following statement made by the drawer : — " I have several good defences to the action ; in the first place, the letter " (containing notice of dishonour) "was not sent to me in time." A notice to produce the letter had been given, but it was not produced. Lord Denman thought that, as the drawer withheld the letter, the jury were justified in assuming, as they actually had done, that if produced it would have appeared to have been in time. But Littledale, Patteson, and Coleridge, JJ., thought that the letter might have been dated on the proper day, but sent by private hand, or in some way in which it would not have arrived in proper time ; and that the drawer would not be bound to produce a letter which, on the face of it, might make against him, and which he might not have evidence to explain ; and a rule for a new trial was made absolute. On the other hand, in Cmieicis v. Corfield, 1 Q. B. 814, where a letter Avas shown to have been sent to the defendant the day after dishonour, and the defendant, an attorney, afterwards objected the want of due presentment, but not that of notice, the jury, on proof of a notice to pro- duce, was held warranted in inferring that the letter contained due notice of dishonour. See Bell v. Frankis, 4 M. & Gr. 446; Lohh v. Stanley, 5 Q. B. 574; and for a further illustration of the same principle, Mason, v. Morley, 34 L. J. Ch. 442. COLLINS V. BLANTERN. EASTER— 7 GEORGE 3. C.B. [UEl'OUTKD 2 WILSON, 341.] Illegality may be pleaded as a defence to an action on a bond. Shropship.e /() wit. Debt upon a bond for TOOL dated the Gth day of April, 1765 (a). 1st Plea sets forth oiicr of the obligation, \vherein four others with the defendant were jointly and severally bound to the plaintiff in 700/. And also ofjer of the condition for the pay- ment of 350Z. to the plaintiff on the 6th of May next. Non est factum pleaded. 2ndly, The defendant pleads, that before and at the time cf making the bond, and the note after mentioned, two of the obligors, John and Thomas Walker, and three others, stood indicted by John Rudge, on five indictments, for wilful and corrupt perjury, and had severally pleaded Not Guilty before the making the bond and note. And the several traverses on the indictments, at the time of making the unlawful agreement after mentioned, and the note and the said bond, viz., on the same day the bond was made, were about to come on to be tried at Stafford. Whereupon it was then corruptly agreed between Rudge the prosecutor, the plaintiff', and the five persons indicted, that the plaintiff" should give the prosecutor Rudge his note for 350/. in consideration for not appearing to give evidence at the trial of the said traverses. And that the obligors should execute the bond to the plaintiff' of the same date as the note, as an indemnity to the plaintiff' for giving such note. The plaintiff gave to Rudge the prosecutor the note for 350/. for not appearing (a) The side notes to the original report itself, in whicli the pleadings are set out which contain an abstract of the plead- at length, ings are here printed in lieu of the report 23 2 356 COLLINS v. BLANTERN. as prosecutor and giving evidence. And that the obligors on giving the note executed this bond, as an indemnity to the plaintiff for giving such note. An averment that the bond was given for the said consideration, and no other; and that the obligors were not indebted to the plaintiff ; and therefore the bond is void in law ; ct lioc, &c. 3rd Plea, that the bond was given by the obligors to indem- nify the plaintiff against a note given by him to the prosecutor, and that the plaintiff has not been damnified by the note ; et hoc, &c. Eeplication and issue to the 1st plea Demurrer to the 2nd plea. Demurrer to the 3rd plea. Joinders in demurrer. COLLINS V. BLANTERN. This case was well argued last Hilary term by Serjeant Xares for the plaintiff", and Serjeant Gh/nn for the defendant, and in this term by Serjeant Burland for the plaintiff, and Serjeant Jeplison for the defendant. On the side of the plaintiff it was insisted that, the condition of the bond being singly for the payment of a sum of money, the bond is good and lawful ; and that no averment shall be admitted that the bond was given upon an unlawful considera- tion not appearing upon the face of it, and therefore that the special plea is bad. Upon the first argument these cases were cited for the plaintiff": Garth. 252; Comb. 121, Thompson v. Harvey; Lady Downing v. Chapman {h), C. B. Mich. 6 Geo. 2 (now depending in error in B. E.); 1 Leon. 73, 203; Jenk. 106; Carth. 300; Comb. 245; Empsony.Bathurst, 1 Mod. 35, Hutton, 52 ; Vent. 331 ; Cro. Jac. 248. For the defendant it was insisted, that the averment of the wicked and unlawful consideration of giving the bond might well be pleaded, altliougli it doth not appear upon the face of the deed ; and that anytliing which shows an obligation to be void may well be averred, although it doth not appear on the face of the bond : as duress ; tliat it was delivered as an escrow to be {!>) Tills f;asc will hr. fnwwl ri'porkd 9 East, 414, in notil. COLLINS V. BLANTERN. 357 delivered upon a certain condition to the obligee ; infancy, co- verture, or upon a simoniacal contract, maintenance, cC-c. ; and although it is said there is a difference between bonds being void at common law and by statute, yet it is otherwise, for the common law was originall}^ by statutes Avhich are not now in being. The general rule, that you cannot plead any matter dehors the deed, doth not apply to this case ; the true meaning of that rule is, that you cannot allege anything inconsistent with and contrary to the deed, but you may allege matter consistent with the deed. The bond in the present case is for the payment of money ; the plea admits this, and the averment alleges upon what consideration that money was to be paid, and therefore is not inconsistent or contradictory to the condition of the bond. This rule of pleading, applied to the cases of simony, duress, coverture, infancy, cC-c, is on the side of the defendant in this case. Ill bonds not to follow a trade the defendant may aver the consideration to avoid the bond. Downinr/ v. Chapman is not like this case ; that was an averment contradictory to the condition of the bond, and amounted to a defeasance ; the present consideration is consistent with the condition, which is for payment of money, and only shows the bad consideration upon which the money was to be paid. Upon the first argument the Lord Chief Justice broke the case, and said that this was very different from the case of Lady Downing V. Chapman, and therefore he would consider it wholly indepen- dent thereof ; and said, as he was then advised, he thought there was no difference between an act being void by statute or the common law; that the principle the judges heretofore have gone upon for making the distinctions (in the books) is not a sound one ; for wherever the bond is void at law or by statute, you may show how it is void by plea, and that in truth it never had any legal existence. That the statute law is the will of the legislature in writing; the common law is nothiufi else hut statutes worn out by time ; all our law began by consent of the legislature, and whether it is now law by usage or writing, it is the same thing ; a statute says such a thing shall be avoided b}' plea, why therefore may not a deed executed upon a consideration against the common law be avoided by plea? In duress, simony, infancy, coverture, dec, the plea discloses that in truth there never was 358 COLLINS V. BLANTERN. any obligation. The principle upon which courts of justice must go is, to enforce the performance of contracts not injurious to society ; and it would be absurd to say that a court of justice shall be bound to enforce contracts injurious to and against the public good. No man shall come into a court and say, " Give me a sum of money which I desire to have contrary to law ; " there can be no doubt but that the compounding a prosecution for wilful and corrupt perjury is a very great offence to the public, and whether it was between some persons who are strangers to this action, it is not material. Bathurst, Justice, (upon the breaking this case,) said, that the case of Lad// Doniuxfi v. Chapman was not like it. Gould, Justice, (upon the breaking this case,) said that he differed with the rest of the court in the judgment given in Lady Doicniiifi V. Chapman, and that upon the whole of that case he thought the averment, that the bond there given was upon a wicked consideration, ought to have been admitted; he said that, if this case at bar had been upon a simple contract, the court would not have hesitated a moment, but would have given judgment that it was bad; and shall the court sanctify a deed made upon a wicked consideration because it is sealed? To have a deed which ought to be to a man's good turned to evil purposes he thought very wrong, and that there was no dis- tinction whether a deed be void at law or by statute. Upon the second argument of the case at bar in this term, the Lord Chief Justice delivered the opinion of the whole court (and pronounced judgment for the defendant) to the following effect. Lord Chief Justice Wilmot: — Four questions are to be con- sidered : 1st. Whether it doth not appear, from the facts alleged in tlie second plea, that the consideration for giving the bond is an illegal consideration '? 2nd. Whether a bond given for an illegal consideration is not clearly void at common law al) initio I 3rd. Supposing the bond is void, whether the facts disclosed in the plea to show it ^•oid can by law be averred and specially pleaded ? 4tl). If they can be i)leadod ; then whetlier iliis second plea is duly, aptly, and properly pleaded '? COLLINS V. BLANTERN. 359 1. As to the first question, it hath been insisted for the plaintiff that he was not privy to the bargain and agreement, so as to him there appears to be nothing iUegal done by him. But we are all clearly of opinion that the whole of the transaction is to be considered as one entire agreement ; for the bond and note are both dated upon the same day, for payment of the same sum of money on the same day ; the manner of the transaction was to gild over and conceal the truth ; and wherever courts of law see such attempts made to conceal such wicked deeds, they will brush away the cobweb varnish, and show the transactions in their true light. This is an agreement to stifle a prosecution for wilful and corrupt perjury, a crime most detrimental to the commonwealth ; for it is the duty of every man to prosecute, appear against, and bring offenders of this sort to justice. Many felonies are not so enormous offences as perjury, and therefc)re to stifle a prosecution for perjury seems to be a greater offence than compounding some felonies. The promissory note was certainly void ; what right then hath the plaintiff' to recover upon this bond, which was given to indemnify him from a note that was void ? They are both Ijad, the consideration for giving them being wicked and unlawful. 2. As to the second point, we are all of opinion that the bond is void ah initio, by the common law, by the civil law, moral law, and all laws whatever ; and it is so held by all writers whatso- ever upon this subject, except in one passage in Grotius, lib. 2, cap. 11, sect. 9, where I think he is greatly mistaken, and differs from Puffendorf, lib. 3, cap. 8, sect. 8, who, in my opinion, con- victs the doctrine of Grotius. In Justin. Instit. lib. 3, tit. 20, de turpi causa, sect. 23 (c): — Quod turpi ex causa promissum est, veluti si quis Jiomicidium vel sacrilegium se facturuin promittat, non valet. And Vinnius, in his commentary, carries it so far as to say, you shall not stipulate or promise to pay money to a man not to do a crime, !Si quis pccuniam promiserit, ne furtum aut ccedeui faccrct, aut sub conditione, si nonfccerit, adhuc dicendum, stipulationem nidlius esse momoiti ; cu)u hoc ipsuiii fiagitiosum sit, pecuniam iJCtcisci quo Jiagitio ahstincas. Dig. lib. 12, tit. 5 ; Code, lib. 4, tit. 7, to the same point. This is a contract to tempt a man to transgress the law, to do (c) This is lib. 3, tit. 19, sect. 24, in modem editions of the Institutes. 360 COLLINS V. BLANTERN. that which is injurious to the communitj' : it is void by the com- mon law ; and the reason why the common law says such con- tracts are void, is for the public good. You shall not stipulate for iniquity. All writers upon our law agree in this, no polluted hand shall touch the pure fountains of justice. ^Vhoever is a party to an unlawful contract, if he hath once paid the money stipulated to be paid in pursuance thereof, he shall not have the help of a court to fetch it back again. You shall not have a right of action when you come into a court of justice in this unclean manner to recover it back. Procul, .' prociil este profani. See Doct. & Stud. fo. 12, and chap. 24. 3. The third point is, Whether this matter can be pleaded ? It is objected against the defendant that he has no remedy at law, but must go and seek it in a court of equit}^ : I answer, we are upon a mere point of common law, Avhich must have been a question of law long before courts of equity exercised that juris- diction which we now see them exercise ; a j urisdiction which never would have swelled to that enormous bulk we now see, if the judges of the courts of common law had been anciently as liberal as they had been in later times : to send the defendant in this case into a court of equity, is to say there never was any remedy at law against such a wicked contract as this is : we all know when the equity part of the Court of Chancery began. I should have been extremely sorry if this case had been without remed}" at common law. Est honijudicis ampUare juris- dietioncm : and I say, est honi judicis ampliare justitiam; there- fore, whenever such cases as this come before a court of law, it is for the public good that the common law should reach them and give relief. I have always thought that formerly there was too confined a way of thinking in the judges of the common law courts, and that courts of equity have risen by the judges not properly applying the principles of the common law, being too narrowly governed by old cases and maxims, which have too much prevented the public from having the benefit of the common law. It is now objected, as a maxim, that the law will not endure a fact in pais dehors a specialty to be averred against it, and that a deed cannot be defeated by anything less than a deed, and a record by a record, and that if there be no consideration U)y a bond it is a gift. I answer, that the present condition is for tlie payment of a sum of money, Init that payment to be COLLINS V. BLANTERN. 361 made was grounded upon a vicious consideration, which is not inconsistent with the condition of the bond, but strikes at the contract itself in such a manner as shows that, in truth, the bond never had any legal entity, and, if it never had any being at all, then the rule or maxim that a deed must be defeated by a deed of equal strength does not apply to this case. The law will legitimate the showing it void ah initio, and this can only be done by pleading. Nothing is due under such a contract, then the law gives no action, the dehition never existed ; as much as if it had been said it shall be void because there is no debt ; but if this wicked contract be not pleadable, it will be good at law, be sanctified thereby, and have the same legal operation as a good and an honest contract, which seems to be most unreasonable and unrighteous, and therefore, unless I am chained down by law to reject this plea, I will admit it, and let justice take place. What •strange absurdity would it be for the law to say that this contract is wicked and void, and in the same breath for the law to say. You shall not be permitted to plead the facts which clearly show it to be wicked and void ! I am not for stirring a single pebble of the common law ; and without altering the least tittle thereof, I think it is competent, and reaches the case before us. For my own part, I think all the cases upon acts of parlia- ment, with respect to making bonds, &c., void, do warrant the receiving this plea and averment ; there is no direction in such acts of parliament given for the form and manner of pleadmg in those cases ; the end directs and sanctifies the means ; I think there is no difference between things made void by act of parlia- ment, and things void by the common law : statute law and common law both originally flowed from the same fountain, the legislature : I am not for giving any preference to either, but if to either, I should be for giving it to the common law. If there had ever been any idea or imagination, that such a contract as this could have stood good at common law, surely the legislature would have altered it. There has been a distinction mentioned between a bond being void by statute, and at common law, and it is said that in the first case if it be bad or void in any part, it is void in toto, but that at common law it may be void in part, and good in part ; (d) but this proves nothing in the present case. The {d) Sec 2)0st in notis, x^. 371. 362 COLLINS V. BLANTERN. judges formerly thought an act of parliament might be eluded if they did not make the whole void, if part was void. It is said {e), " the statute is like a tyrant, where he comes he makes all void, but the common law is like a nursing father, makes only void that part where the fault is, and preserves the rest ; " 1 Mod. 35, 36. The case of a simoniacal contract may be reached by a plea ; this proves the contract in the present case is to be avoided at common law. The two cases in Leon. I set one against the other, and lay no stress upon either. Infancy, cover- ture, duress, cOc, apply directly to this case ; the plea shows a fact, which if true, the bond never had any legal existence at all. As to a bond being a gift, that is to be repelled by showing it was given upon a bad consideration ; you may thereby repel the presumption of donation. It has been objected that the admission of such plea as the present will strike at securities by deed; the answer is, that such a plea in the case of infancn, gaming, duress, dc. dr., is admissible. What is the plea of nun est factum 7 Ninety-nine in one hundred of them are false ; why then is such a plea to be receive 1, and not the present plea ? I see no reason why. I want no ease to warrant my opinion, it is enough for me if there be no case against me, and I think there is not. In 1 Hen. 7, 14, 16 b, Brian was then the Chief Justice, and his opinion there is founded upon what I have now said : Brian says, "I do not see in any case in the world how a man can avoid a specialty by a bare matter of fact concerning the same deed, if so he that the deed was good at the commencement; " but the present deed was never good. Moor. 564, is a simoniacal contract pleaded to a bond, which was held a bad plea, because simony was not then considered as contrary to our law, but at this day, simony being against our law, such a plea would be good. The case in Comb. 121, is nothing but an obiter dictu))i of a judge, to which I pay very little regard. 4. As to the fourth point, I think the plea is rightly pleaded, and concludes very properly in saying, " And so the said bond is void." It seems to me that tioii. est factum could not have been ])roperly said at the conclusion of Ihis plea after the special matter before alleged; non est ftcuiu means nothing but (c) This saying ia ascribed by Twisdcn, J., to hu\\\ llobart. COLLINS r. BLANTERN. 363 that " I did not seal and deliver the bond;" and why wo» est factum may be pleaded by a, feme covert I do not clearly see the reason, unless the law unites the husband and wife so closely, that it considers them as one and the same person, so that she, without the husband, cannot execute the deed. If two be jointly bound, and only one sued, he cannot plead non est factum, but ought to plead that another was bound with him ; 5 Eep. Ill), a, b. It is fair to tell the pai'ty what is your defence, upon what point you put your case. I think the right way is to con- clude the plea as it is, ''And so the said writing oUigatori/ is void, et hoc, i(;c., and so pray judgment if the plaintiff ought to have his action, &c.," and do not see how he could say non est factum, when he sealed the deed ; but supposing the plea might have been more aptly concluded, yet it is well enough upon a general demurrer, as this is (/). And we are all of opinion that judgment may be for the defendant ; that the averment pleaded is not contradictory, but explanatory of the condition ; that the bond was void ah initio, and never had any existence. Judgment for the defendant per totam curiam. (/) By St. 4 Anne, c. 16. Thk principle, estabhshed in Collins v. Blantern, that Illegali;y may •n i-i 1 1 T 1 1 /• , • be pleaded, liieganty may be pleaded as a deience to an action on a whether con- deed, has been so often recognised, and is so well settled as distent or not 1 1 ■ , ^ IT \y\i\\ the con- law, that it would be useless to enter upon any long discus- ditiou of the sion respecting it. " Since the case oi Pole v. Harrohin in ^'°"^^- 1732, (9 East, 416, n.), it has been generall}^ understood that an obligor is not restrained from pleading any matter which shows that the bond was given upon an illegal consideration, ivhether consistent or not witli the condition of tlie hond ;" per Lord Ellenborough, Paxton v. Popham, 9 East, 408, 421. And this, it will be remarked, carries the doctrine a step further than Collins v. Blatitern, where the illegality averred in the plea was consistent with the condition. So, too, a covenant that lands on which an annuity was secured were worth more than the annuity, did not, whilst the Annuity Act was in force, estop the grantor from showing the reverse; Doe V. Ford, 3 A. & E. 654, See further Prole v. Wiggins, 3 B. N. C. 230. In Paxton v. Popham, supra, the condition of 364 COLLINS V. BLANTERN. Courts will not enforce illegal con- tracts if illegality appears. Two classes of illegality : by coiuinon law ; anil liy statute. Illegality at common law. Public policy. Comj>romi.sc of j)eniliiig ciitiiiiial yiroccf'diiig.s. Distiii'lioii wbftrc ofreiiccs may be subject of civil action. the bond on which the action was brought stated that the defendants had borrowed of the phiintiff a sum, to run at respondentia interest, on the security of goods shipped from Calcutta to Ostend, for the repayment of which on the ship's arrival the bond was conditioned. Plea, that the bond was given to cover the price of goods sold by plaintiffs to defend- ants for the purpose of an illegal traffic from the East Indies, and that the plaintiffs knowingl}' assisted in preparing the goods for carriage upon such illegal voyage. On demurrer the court gave judgment for the defendants. Accord. Greville v. AWdns, 9 B. & C. 462. The court will not " enforce an illegal contract, or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brouglit to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality, the court ought not to assist him ; " Scott v. Brown, (1892) 2 Q. B. 724, per Lindley, L.J. With respect to the different species of illegality pleadable to an action on a bond or contract, it is impossible to do more than particularise a few of those which have actuall}^ come under discussion in reported cases, f hey may be divided into two classes, viz., 1. Where the illegality exists at common law ; and, 2. Where it is occasioned by the enactment of some statute. Under the first class are comprehended contracts which militate against public policy ; see E'gerton v. Brownlow, 4 H. L. C. 1 ; and Hilton v. Eckerslci/, 6 E. & B. 47, 66 ; for instance, contracts in general restraint of trade, the leading case on which subject is MitcJtell v. Reynolds, post, p. 39 1 ; and agreements to compromise offences, as in the principal case. Any agreement to compromise pending criminal proceed- ings is illegal; Ex p. Critchley, 3 I), it L. 527; Ex p. Wolrcrhaiiijifou Jkaih, 14 Q. B. ]). 32 ; even though sanc- tioned by the judge at tlie triiil ; Kcir v. Lcciiiaii, G Q. B. 308, Old. 371, d{)5; Wiiidhill L. li. v. Vint, 45 Ch. 1). 351. With iTgai-(l to this rule it is laid down in Kcir v. Leoiiait, G <,). y>. 308, 321, that a i)i'os('cution for an offence wiiich might be made tlie subject of a (,'ivil action, e.;/., a common assault, may legally be (-ompromised ; but thatif the offence bo wholly or partly of a public nature, e.g., assault and COLLINS l\ BLANTEUN. 365 riot, no agreement to stiHe a prosecution for it can be valid. Any agreement, either express or implied, that there shall Agreement be no prosecution, is likewise illegal ; Ward v. Lloyd, 6 M. & prosecute. Gr. 785; Williams v. Jhii/leij, L. K. 1 H. L. 200; Ex p. Caldccott, 4 Ch. D. 150 ; Flower v. Sadler, 10 Q. B. I). 572 ; Jones V. Merloiu'tlisJtlre Soc, (181)2) 1 Ch. 173. A mere threat of a prosecution, however, does not invalidate secu- rities subsequently' given by a debtor to his creditor for the debt, if there be no agreementnotto prosecute ; Wardv. Lloyd, supra ; Floiccr v. Sadler, suj^ra. There is a distinction in this respect between securities given b}' the debtor himself and those given b}' third parties who are under no obligation to the creditor ; Flower v. Sadler, supra. As to recovering money paid, or securities given, under such circumstances, see notes to Merryu-eather v. Nlxaii, post, p. 384. So also the courts have held to be illegal, agreements to Compromise pay money for the withdrawal of an election petition ; Cop- "^ j^j'^'^tioii pock*\. Bower, 4 M. & W. 361 ; or of proceedings to strike q,. p,oceedinf^s a solicitor off the rolls ; Klrwan v. Goodman, 9 Dowl. 330 ; against or of opposition to the discharge of a bankrupt; Kearleij v. ''^ ' mi t-« < /^ T^ TA r-T . -. 1 1 1 ' . or bankrupts. I liomson, Y,4:Q.B.D. /42; also an agreement whereby an m- ^ . r , . . " . -^ Interrerence dictment for obstructing a highway was compromised ; Wind- with course hill L. B. V. Vint, 45 Ch. D. 35l'; and an agreement to pay ofju^tice. money in consideration that, at the trial on the prosecution of a third part}', the payer should be exonerated from blame ; Lound V. Grimwade, 39 Id. G05. The courts will not enter- tain actions for specific performance of agreements to pay mone}' for the withdrawal of divorce suits ; Gipps v. Hume, Withdrawal 31 L. J. Ch. 37 ; and an agreeme)it not to enforce a bond in °^ /li^oi'ce . . . suits. consideration of the obligor not publishing the fact of the obligee's adultery with the obligor's wife is no defence to an action on the bond ; Brown v. Brine, 1 Ex. D. 5. A contract to indemnify bail against the consequences of Contracts to the non-appearance of the accused is illegal ; and money '"'.''^'"""*y paid under it to the bail cannot be recovered either before or after forfeiture of the recognizance ; HernuDi v. Jeuchner, 15 Q. B. D. 561 ; overruling, on the latter point, ]]llso>t v. Strug nell, 7 Id. 548. In Howden v. Sim2)so)i, 10 A. i*i: E. 793, 9 CI. d' F. 61, an Agreement to agreement between pro|)rietors of a i)roposed railway and a ^^'i'^^^^^l'".^^' " *- / ... . op])osition to peer, that he should withdraw iiis opposition to their bill in railway held parliament, and that if the bill were passed they should pay ^'^^'^' him 5000/. as compensation for the danuige to his lands, was COLLINS V. BLANTERN. held valid ; it not being shown that the money was pro- mised as a consideration for the peer's vote being given or withheld, or tliat the parties to the agreement intended to conceal it from other landowners, or from the legislature, or that any fraud was committed or intended. See ScottisliN. E. R. Co. V. Stewart, 3 Macq. 382 ; Hare v. L. and N. W. R. Co., 2 J. & H. 80 ; Mauasell v. Mid. R. Co., 1 H. & M. 130. A deed made in consideration of a future separation be- tween husband and wife is void; Hindlei/ v. Wcstmcath, 6 B. & C. 200; Cocksedge v. Cocksedge, 14 Sim. 244; though it may be otherwise where the consideration is an immediate one ; Jec v. Tluniow, 2 B. c^' C. 541. In Jones v. Waite, 5 B. N. C. 341, the Exch. Cham, agreed that a husband can- not legall}' sell his consent to a separation, though there was a difference of opinion on the question whether the facts stated amounted to such a sale. But, wliere separation is inevitable, a contract settling the terms on which it is to take place is lawful ; Wilson v. Mvskett, 3 B. & Ad. 743 ; Jones V. Waite, 2 CI. c^ F. 88 ; Papps v. Webster, Cam. Scacc. 1848 ; Randle v. Gould, 8 E. & B. 457 ; and specific performance of such a contract may be decreed though there be no covenant by the trustees to indemnify the husband against the wife's debts ; Frampton v. Frampton, 4 Beav. 287 ; Clough V. Lambert, 10 Sim. 174 ; Jodrell v. Jodrell, 9 Beav. 45; Wilson v. Wilson, 14 Sim. 405. In the last case part of the consideration was the discontinuance of a suit for nullity of marriage on the ground of the husband's impo- tency, and Shadwell, V.-C, decreed specific performance, and restrained the husband by injunction from compelling the wife to proceed with the suit in the Ecclesiastical Court, though it was suggested that by tlie practice of that court no restitution of conjugal rights could be obtained pending the suit for nullity except by a proceeding in that suit. Upon appeal to the H. L., notwithstanding an attack of the most general character, and conducted with consummate ability, upon the policy of separation deeds, the decree was aftirmed, and the law, it is to be hoped, at length finally settled; 1 H. L. C. 538; see Vansittart v. Vansittart, 4 K. & J. 62, per Turner, L.J. In J I nut v. Hunt, 31 L. J. Ch. IGl, liord Wcstbury restrained a husband from seeking restituti(ju of conjugal rights contrary to a covenant in a separation deed. Tlie case was taken to the II. L., but Mrs. Ilunt (li< several condi- is void by statute, the whole bond is void ; Norton v. Syms, tions is void Moore, 856, Hobart, 14; Lee v. Coleshill, Cro. Eliz. 599; ''>' *f«. 377. A Cfjiitract will not bccoiiu! illegal by relation which was. not so wlien made, although the party making it was bound by law under a penalty to do u subsequent act, which has COLLINS /■. J5LANiKK.\. 375 however been neglecteil ; thus :iii uttoriuiv who neglected to enter his certificate was permitted to recover for work done before the (^jy^iration of the time allowed for entering it; Eyre v. ;.S/ieZ/^»|tay. & W. 2()9 ; see Kent v. Ward, 70 And there ma}' ocS^-cases in whicli a contract, the per- Contracts, formance of which could not have been enforced because the beinir enforced contract itself was forbidden, will become available if while execu- executecl, because tlie pohcv ot the statute, wliicli prohibits times avail- its enforcement while in an executory state, was to secure ^^^^^' ^^'''^'^ executeiL its execution ; M'CaUan v. Mortimer, 9 M. & W. G40, where the seller of stock recovered the price of stock actually transferred, although at the time of the contract to transfer the seller -was not actually possessed of or entitled to the stock, and so the contract, while executory, as it is said, was incapable of being enforced by reason of the provisions of the Stock Jobbing Act, 7 Geo. 2, c. 8 (repealed by 23 Vict. c. 28). Compare Westlakc v. Adams, 5 C. B. N. S. 248, where the j)laintitl', a master, had made with the defen- dant an indenture of apprenticeship, void under 8 Ann. c. 9, s. 89, because only part of the amount of the premium was stated in the instrument, and it was held nevertheless (distinguishing Jaekson v. Wancie],-, 7 T. li. 121), that the deed having been acted upon, and the boy having served his time under it, the master might recover from the defendant, the father of the boy, the whole amount of the agreed premium ; although service under such an indenture would not create the relation of master and apprentice, even against a wrongdoer enticing the latter away from the service ; Cox V. Munceij, 6 C. B. N. S. 375. It seems that a contract is not illegal or void, simply Contracts not because private rights are interfered with by the act stipu- consideration lated for ; e.g., where the consideration is a breach of con- breach of tract or of private trust, the contract may be enforced, and the persons injured b^y its performance are left to the ordinary means of redress ; IJ^alker \. Ixieltardso)!, 10 M. & W. 284; j)('/- Parke, B., Jaekson v. Cohhin, 8 Id. 797; per Vaughan, C.J., Rudyard's Case, 2 Vent. 23. Where, however, money W'as promised to an agent, partly in con- sideration of a promise by him to use his influence with his principal to procure the accei^tance of the defendant's tender, it was held that the promise could not be enforced ; Harrington v. Vietoria Doeks, 3 (^). B. D. 549. In Fisher v. Bridges, 2 E. & B. 118, 3 Id. G42, the ques- Whether ille- 376 COLLINS V. BLANTERN. gality vitiates subsequent legal contract embraced in terms of il- legal contract. Fisher v. Bridges. Distinction between con- siderations void and ille-al. tion arose whether ille, founded upon i)ast cohabitation or previous scduclioii, is good. Il' an agree- ment had l>e('n made to pay a sum of money in consideration of future cohabitation, and, after cohabitation, the nione}' being un|)aid, a Itund bad been given to secure that mone}', COLLINS V. BLANTERN. 377 that would be tlie same case us this ; and such a bond could not under such circumstances be enforced." See also Ai/erst V. Jenkins, 16 Eq. 275, jwr Ijord Selborne. Fisher v. Bridges belongs to a class of cases, which it Conimcts void has been the tendency of some modern decisions to enlarge, tive illet^ality. of solemn contracts not in themselves transgressing any positive rule of law, yet held to be void by reason of some constructive illegality, or supposed tendency to contravene public policy. The expression, upon which the judgment of the Exch. Cham, turns, that the contract was void because it was " to pay a siDii of vwnef/ tainted with ilh'9() ; but the directors may make them- selves personally liable by so holding him out, Id. Tlie distinction, in the case of companies registered under the Act of 1862, between contracts invalid because they are COLLINS V. BLANTERN. 381 outside the scope of the memorandum of associiition, and t'le company those invuHd for non-fulfihiient of some condition or for- \,ires qwx the mality required bv the articles of association was clearl}' tlirectors. exphiined by Ijord Cairns, in Aslihuri/ Co. v. liiche, L. K. 7 H. L. 65B, 668: "The memorandum . . is as it were the charter, and defines the limitation of the powers of a company to be established under the Act . . The articles Distinction of association play a part subsidiarx^ to the memorandum of between . ,. rni ' - .1 1 P • ,• nienioiandnm association, llie}^ accept the memorandum oi association and articles as the charter of incorporation of the company ; and so °^ association accepting it, the articles proceed to define the duties, the rights and the powers of the governing body as between themselves and the company at large, and the mode and form in which the business of the company is to be carried on, and the mode and form in which changes in the internal regulations of the company may from time to time be made. With regard, therefore, to the memorandum of association, if you, find anything which goes beyond that memorandum, or is not warranted by it, the question will arise, whether that which is so done is ultra vires, not only of the directors of the company, but of the company itself. With regard to the articles of association, if you find anything which, still keeping within the memorandum of association, is a violation of the articles of association, or in excess of them, the question will arise whether that is anything more than an act ultra vires the directors, but intra vires the company." See Ex p. British Nation Ass., 8 Ch. 1). 679 ; A.-G. v. G. E. R. Co., 5 App. Cas. 473. A question sometimes arises, whether, when a statute Statute points out a particular mode for the performance of some ^^ j^'.!*;^' act therein commanded, its enactments shall be taken to be or directory. imperative or only directory; in the former of which cases alone an act done in a diiferent mode from that pointed out by the statute would be void. In Pearce v. Morrice, 2 A. et E. 96, the following rule for distinguishing between imperative and merely directory enactments is given b}' Taunton, J. : "A clause is directory, where the provisions contain mere matter of direction, and no more ; but not so, when they are followed by words of positive prohibition." See R. v. Gravcsend, 3 B. & Ad. 240; R. v. St. Gregory, 2 A. & E. 106 ; Brooks v. Cock, 3 A. &E. 138 ; Southampton Dock Co. V. Richards, 1 M. & Gr. 448 ; TJioinjhsonv. Harvey, 4 H. & N. 254; Wolverhampton Waterivorks Co. v. Hawks- ford, 7 C. B. N. S. 795, where an act was required to be 382 COLLINS V. BLANTERN. Want of re- medy for nou- compliaiice, no arguuieiit against construing clause as director}'. Effect of statu- tory disability of one of t\vo grantors of joint deed. done within a certain time ; Cole v. Green, 6 M. & Gr. 872, where a particular mode of signature of a contract was directed. " It is " (said Parke, B., in Gwynne v. Burncll, 2 B. N. C. 39) " by no means an}' impediment to construing a chiuse to be directory, that if it is so construed there is no remedy for noncompliance with the direction. Thus, the statutes wliich direct quarter sessions to be held at certain times in the yeox are construed to be directory, R. v. Leicester J J., 7 B. & C. 6, and sessions held at other times are not void ; yet it would be difficult to say that there would be any remedy against the justices for appointing them on other than the times prescribed by the statute." See Thames Haveri Co. v. Rose, 4 M. & Gr. 552. In Gillow V. LiUie, 1 B. N. C. 696, the question was discussed, whether a joint deed executed by two persons, one of whom laboured under statutory' disability, would be void as against both, or only as against the one rendered incapable by statute ; but the point was not decided, as the court held that, the deed being several as well as joint, the defendant's several liability was sufficient to maintain the action. MERRYWEATHER v. NIXAN. EASTER.- 2,^ GEO. 3, A'. B. [KEPOllTED 8 T. :i. 186 (16 11. R. 810).] If A. recover in tort against two defendants, and levy the wliole damages on one, that one cannot recover a moiety against the other for his contribu- tion; aJiter, in assiDnpsit. One Starkey brought an action on the case agamst the pre- sent plaintiff and defendant for an injury done by them to his reversionary estate in a mill, in which was included a count in trover* for the machinery belonging to the mill; and, having recovered 840/., he levied the whole on the present jjlaintiff, who thereupon brought this action against the defendant for a contribution of a moiety, as for so much paid to his use. At the trial, before Mr. Baron Thomson, at the last York assizes, the plaintiff was nonsuited, the learned judge being of opinion that no contribution could by law be claimed as between joint wrong-doers ; and, consequently, this action, upon an im- plied assumpsit, could not be maintained on the mere ground that the plaintiff" had alone paid the money which had been recovered against him and the other defendant in that action. Chambre now moved to set aside the nonsuit ; contendincr, that as the former plaintiff had recovered against both these parties, both of them ought to contribute to pay the damages : but Lord Kexyon, C.J., said, there could be no doubt but that the nonsuit was proper : that he had never before heard of such an action having been brought where the former recovery was for a tort : that the distinction was clear between this case and that of a joint judgment against several defendants in an action of assutiqjsit : and that this decision would not affect cases of indemnity, where one man employed another to do acts, not unlawful in themselves, for the purpose of asserting a right. Rule refused. 384 MERRYWEATHER r. KIXAN. The case of Philips v. Biggs, Hard. 164, was mentioned by Lcnc, for the defendant, as the only case to be found in the books in which the point had been raised ; but it did not appear what was ultimately done upon it. £x turpi causa non oritur actio Oicens V. Denton. The principle established by Merryweailier v. Nixan, \iz., that one tort-feasor cannot recover contribution against another, is but one modification of that general rule laid down by Wilmot, C. J., in Collins v. Blantcrn, ante, p. 360, viz. : Ex turpi causa non oritur actio. *' Whoever," his lordship there laid down, "is a party to an unlawful con- tract, if he have once paid the mone}' stipulated to be paid in pursuance thereof, shall not have the help of a court of justice to fetch it back again." This general statement, however, must be taken subject to the qualifications men- tioned below. The statement of an account in which the money due by the terms of the illegal contract is allowed, seems for this purpose equivalent to payment of it. In Owens v, Denton, 5 Tyr. 359, the plaintifi' sued for wages ; it appeared that the defendant had sold malt to the plaintifi" by the hobbett, contrary to statute, but that the price had been included in an account settled between them, in which the malt was set ofi' against the wages ; it was held that the defendant might rely upon this settlement as a payment of the wages. " The general proposition," said Lord Abinger, " may be admitted, that a seller cainiot enforce a contract of this sort by action, or in support of a plea of set-off. But the question here is, whether a settlement of accounts, equivalent to a payment in cash, has not taken place between the parties." Examples of tbe rule, that money paid in pursuance of an illegal contract shall not be brought back again, are to be II illegal coil- found in M'Kin)iell v. liohinsoji, 3 M, & W. 434, where it be'recoveied. "^^'^^ ^"^'^'^ ^^'"^ money lent for the express purpose of illegal gaming is not recoverable ; in Ilou-son, v. llaneock, 8 T. R. 575, where it was held that money paid to the wi)nier of an illegal wager witii the loser's consent is not recoverable ; and in lirownin 1 1 T ' T 1 • J J. J. 1' assii^ued for planitiff who had conveyed his property upon trust lor an lUe^al pur- illegal purpose, which had in no wav been carried out, was pos-not • 11-1 T " 1 1 • 1 ^1 carried out. entitled to have the property re-conveyed to Inm by tne defendant who took as assignee i'rom the original trustee ; Lord Eomilly saying: "where the purpose for which the assignment was given is not carried out, ixnd nothing is done under it, the mere intention to effect an illegal object when the assignment was executed does not deprive the assignor of the right to recover his property from the assignee who has given no consideration for it ; " and in Taylor y. Bowers, supra, the facts were veiy similar. In Herman v. Jeuchner, 15 Q. B. I). 561, it was decided Herman v. by the C. A. that money could not be recovered back, which •^^^s^""^'"- had been deposited by the plaintiff" with the defendant as security to induce him to become surety for the plaintiff"s good behaviour for two years. The defendant had become surety, but the two years had not expired when the action was brought. Lord Esher observed: "I will not stop to 25 2 388 MERllYWEATHER V, NIXAN. If illegal pur- pose 'partially performed, property cannot be recovered. Doubt as to principle of Taylor v. Boxocrs. say whether, in order to defeat the plaintiff in an action like this, the defendant must be able to prove that the illegal object is performed, or whether it is sufficient that the contract itself shall be tainted with illegality ; for if the contract is illegal and has been performed, then the person vouching the illegality cannot recover. In this case the illegal purpose has been wholly performed, and therefore the plaintiff cannot recover." Baggallay, L.J., said : " I am hardly prepared to say that, in order to prevent a plaintiff from recovei'ing who sues to recover back money deposited in furtherance of an illegal purpose, the illegal object itself must be full}^ carried out." In Kearley v. Thomson, M Q. B. D. 742, it was held by the C. A. that where money is paid under an illegal con- tract which has been iMrtially performed it cannot be recovered back. It was there explained that the observations of Lord Esher, in Herman v. Jeuchner, sujrra, did not mean that the illegal purpose must he fully carried out in order to prevent the money being recovered back. The judgment of the court was delivered by Fry, L.J., who expressed a doubt whether the principle, laid down in Taylor v. Bowers, was sound, saying: "It is remarkable that this proposition is, as I believe, to be found in no earlier case than Taylor v. Bowers, which occurred in 1867, and, notwithstanding the very high authority of the learned judge (Mellish, L.J.) who expressed the law in the terms which I have read, I cannot help saying for myself that I think the extent of the applica- tion of that principle, and even the principle itself, ma}^ at some time hereafter require consideration, if not in this court, yet in a higher tribunal ; and I am glad to find that in expressing that view I have the entire concurrence of Lord Coleridge." Where money had been paid as the consideration for a wagering contract which was against public polic}^ and which had in no way been executed, the money was held to be recoverable, and it was said that there was a distinction in tliis respect between cases where there was moral turpitude and where there was not ; Tappenden v. llandall, 2 13. & P. 467. See also Be Great Berlin Steamboat Co., 26 (Jh. D. 616, and Howard v. nefufie Soc., 54 L. T. 644. As to the recovery of money in cases of contracts void under the Gaming Acts, sec the notes to Godsall v. Boldero, post, vol. ii. There is this further distinction, if, indeed, it can be MERRYWEATHEK V, NIXAN. 389 properly so called. "Where an illeffiil instrument has been No estoppel concocted, even though it assume the shape of a deed, no pTuiug right person is estopped from disputing tlie right to sue upon it. .\''^"^?"^ rni 1- ■ -11 T 1 1 illegal mstru- Thus the covenantor or obligor ni an illegal bond or cove- meut. nant can plead the illegality in order to avoid the deed. But where the deed is one under which an estate has passed, ScmMe,sccus , ,, , . . ,. ... • , .1 where estate and tlie party conveying is particeps crimims, privy to the ],^j. passed illegal purpose, there it is said he cannot defend himself ;''"^1 grantor against an ejectment upon the ground of his own fraud in criminis. executing the conveyance. Therefore, where A. conveyed land to B., in order to give him a colourable qualification to kill game, and so defeat an information against him, it Avas held that A. had no defence in an ejectment for the land brought by B. ; Doe v. Roberts, 2 B. i'(: Aid. 367 ; see Halves v. Leader, Cro. Jac. 270, Yelv. 196. But this does not always hold good as against persons claiming tJtrougli the party who made 'the fraudulent conveyance, for they may be^ the very persons sought to be defrauded; therefore, where A. conveyed in order to evade the Mortmain Acts, his heir was allowed in ejectment to question the conve}'- ance, for it operated to his disherison ; Doc v. Lloyd, 5 B. N. C. 741. In Wehh v. Heme Bay Commissioners, L. R. 5 Q. B. 642, Body corpo- it was held that a body corporate which had statutory power froiVsettino- to issue negotiable securities, to secure loans, and had np illegality issued securities which purported on the face of them to arraiust iimo- have been issued pursuant to that power, were estopped eeut assignee. from alleging against an innocent assignee for value that they had been issued under an illegal contract. See further as to such estoppel, the notes to Tlie Duchess of Kingston s Case, post, vol. ii. ; and as to the ultra vires doctrine in the case of corporations, see the notes to Collins v. Blantern, ante, p. 376 et seq. The doctrine established in Merri/ireatJicr v. Nixan, is Analogy of drawn from the same source as that which in-events the l°fl!!-I^!i^„,e<. "^ |)Il[lCipcli Ltloc recovery back of monej' paid in pursuance of an illegal con- to that which tract. If contributions could be claimed by one tort-feasor |,o^ervo/°' from another, the community of wrong between the plaintiif money paid and defendant would be the very foundation of the action ; contract^ and it is as contrary to polic}' to allow a man to recover that which he has paid in consequence of his illegal act, as to allow him to recover that which he has paid in conse- quence of his illegal contract; and therefore, where a sheriff let the defendant go without taking a bail-bond, and was in 890 MERRY WEATHER V. NIXAN. Rule of prin- cipal case applies only where guilty knowledge presumed. consequence obliged to pay the debt, he failed to recover the amount from the defendant; Pitcher v. Bailey, 8 East, 171 ; Eyles V. Faikney, Peake, 195 n. Some qualifications which have been engrafted on the general rule laid down in Merryiveather v. Nixan will be found collected in the notes to Lampleir/li v. Braithicaite, ante, p. 154, where the right of a joint-contractor to contri- bution is also spoken of. It is important to observe that the rule applies only to cases where the person asking redress must be presumed to have known that he was doing an illegal act, and does not extend to cases where he was a tort-feasor by inference of law only, as, for instance, where one of several partners has been sued for negligent acts done, not by himself, but by a servant of the firm ; see Pearson v. Skelton, 1 M. & W. 504; and Adamson v. Jar vis, 4 Bing. 66. " The general rule is that between wrong- doers there is neither indemnity nor contribution : the exception is wdiere the act is not clearl}^ illegal in itself; " per Lord Denman, Betts v. Gihhins, 2 A. et E. 57, 74. For an application of the general rule to cases where a vessel is damaged at sea in a collision caused by the joint negligence of two other vessels, see TJie Avon, (1891) P. 7; The Englishman, (1894) P. 239, (1895) P. 212. In Palmer v. IVick Co., (1894) A. C. 318, Lord Halsbury said that " the case of Merryweather v. Nixan has been so long and so universally acknowledged as part of the English law that ... it would be now too late to question its applicability to all cases in England governed b}' the prin- ciple therein enunciated." MITCHEL V. REYNOLDS. HIL. 1711.— 7?. Px, [REPOKTED 1 p. WILLIAMS, 181.] A bond or promise to restrain oneself from trading in a particular place, if made upon a reasonable consideration, is good. Secus, if it be on no reasonable consideration, or to restrain a man from trading at all. Debt upon a bond (a). The defendant prayed oyer of the condi- tion, which recited, that " whereas the defendant had assigned to the plaintiff a lease of a messuage and bakehouse in Liquorpond Street,, in the parish of St. Andrew's, Holborn, for the term of five years : now if the defendant should not exercise the trade of a baker within that parish during the said term, or, in case he did, should within three days after proof thereof made, pay to the plaintiff the sum of SOL, then the said obligation to be void." Quihus lectis et auditis, he pleaded, that he was a baker by trade, that he had served an apprenticeship to it, ratione cujus the said bond was void in law, per quod he did trade, 'prout ei bene licuit. Whereupon the plaintiff demurred in law. And now, after this matter had been several times argued at the bar, Pakker, C.J., delivered the resolution of the court : — The general question upon this record is, whether this bond, being made in restraint of trade, be good. And we are all of opinion that, a special consideration being set forth in the condition, which shows it was reasonable for the parties to enter into it, the same is good ; and that the true distinction of this case is, not between promises and bonds, but between contracts irith and iritliout consideration ; and that wherever a sufficient consideration appears to make it a proper and a useful contract, and such as cannot be set aside without injury to a fair contractor, it ought to be maintained; but with this constant diversity (h), viz., where the restraint is general, not to exercise a trade throughout the kingdom, and where it is limited (a) 10 ilod, 27, 85, 130. Fort. 296. (b) See post, in, notis. 392 MITCHEL V. REYNOLDS. to a particular place ; for the former of these must be void, being of no benefit to either party, and only oppressive, as shall be shown by-and-by. The resolutions of the books upon these contracts seeming to disagree, I will endeavour to state the law upon this head, and to reconcile the jarring ojjinions ; in order whereunto I shall proceed in the following method : 1st. Give a general view of the cases relating to the restraint of trade. 2ndly. Make some observations from them. Srdly. Show the reasons of the differences w^hich are to be found in these cases ; and 4thly. Apply the whole to the case at bar. As to the cases, they are either, first, of involuntary restraints against, or without, a man's own consent : or, secondly, of voluntary restraints by agreement of the parties. Involuntary restraints may be reduced under these heads : — 1st. Grants or charters from the crown. 2ndly. Customs. Srdly. By-laws. Grants or charters from the crown may be, 1st. A new charter of incorporation to trade generally, exclu- sive of all others, and this is void ; 8 Co. 121. 2ndly. A grant to particular persons for the sole exercise of any known trade : and this is void, because it is a monopoly, and against the policy of the common law, and contrary to Marina Charta ; 11 Co. 84. 3rdly. A grant of the sole use of a new invented art, and this is good, being indulged for the encouragement of ingenuit}^ ; but this is tied up by the statute of (c) 21 Jac. 1, c. 3, s. 6, to the term of fourteen years ; for after that time it is presumed to be a known trade, and to have spread itself among the people. liestraints ]jy custom are of three sorts : — 1st. Such as are for the benefit of some particular persons, who are alleged to use a trade for the advantage of a community, which are good; 8 Co. 125 ; Cro. Eliz. 803; 1 Leon. 142; Mich. 22 IL G, 14 ; 2 Bulst. 105 ; 1 lioll. Abr. 561. 2ndly. For the l^oiiofit of a community of persons who are not (c) See now tlie Consolidating' ami Anirmling Act, 4G & 47 Vict. c. 57. MITCHEL V. REYNOLDS. 393 alleged, but supposed, to use the trade, in order to exclude foreigners {d) ; Dyer, 279 b ; W. Jones, 162 ; 8 Co. 121 ; 11 Co. 52 ; Carter, G8, 114 ; held good. 3rdly. A custom may be good to restrain a trade in a par- ticular place, though none are either supposed or alleged to use it ; as in the case of JiipjMn, Register 105, 106. Restraints of trade by by-laws are these several ways : — 1st. To exclude foreigners ; and this is good, if only to enforce a precedent custom by a penalty ; Carter, 68, 114; 8 Co. 125 (e). But where there is no precedent custom, such by-law is void ; 1 EoU. Abr. 364; Hob. 210 ; 1 Bulst. 11 ; 3 Keb. 808 (/). But the case in Keble is misreported ; for there the defendants did not plead a custom to exclude foreigners, but only generally to make by-laws, which was the ground of the resolution in that case. 2ndly. All by-laws made to cramp trade in general are void ; Moor. 576 ; 2 Inst. 47 ; 1 Bulst. 11. 3rdly. By-laws made to restrain trade, in order to the better government and regulation of it, are good, in some cases (g), viz., if they are for the benefit of the place, or to avoid public inconveniences, nuisances, &c. ; or for the advantage of the trade, and improvement of the commodity ; Sid. 284 ; Baj^m. 288 ; 2 Keb. 27, 873 ; and 5 Co. 62 b ; which last is upon the by-law^ for bringing all broad-cloth to Blackwell Hall, there to be viewed and marked, and to pay a penny jxt piece for marking : this was held a reasonable by-law ; and indeed it seems to be only a fixing of the market ; for one end of all markets is, that the commodity may be viewed ; but then they must not make people pay unreasonably for the liberty of trading there. In 2 Keb. 309, the case is upon a by-law for restraining silk- throwsters from using more than such a certain number of spindles, and there the by-law would have been good, if the reasons given for it had been true. Voluntary restraints by agreement of the parties are either, {d) Restraints of this kind, whether by (/) See Harrison y. Godman, 1 Burr, custom or by law, were abolished in all 12 ; Hesketh v. Braddock, 3 Burr. 1856, boroughs by 5 & 6 W. 4, c. 76, s. 14. {g) JVannel v. Chamber of the City of See now 45 & 46 Vict. c. 50, s. 247. London, 1 Stra. 675 ; E. v. Harrison, These Acts do not affect London. 3 Burr. 1322 ; Pierce v. Bartrum, Cowp. (e) Woolley v. Idle, 4 Burr. 1951. 269. •394 MITCHEL V. REYNOLDS. 1st. General, or '2ndly. Particular, as to places or persons. General restraints are all void, whether by bond, covenant or promise, &c., with or without consideration, and whether it be of the party's own trade or not ; Cro. Jac. 596 ; 2 Bulst. 136 ; Allen, 67. Particular restraints are either, 1st, without consideration, all of which are void by what sort of contract soever created ; 2 H. 5, 5 ; Moor. 115, 242 ; 2 Leon. 210 ; Cro. Ehz. 872 ; Noy, 98 ; Owen, 143; 2 Keb. 377 ; March, 191 ; Show. 2 (not well reported) ; 2 Saund. 156. Or, 2ndly, particular restraints are with consideration. Where a contract for restraint of trade appears to be made upon a good and adequate consideration, so as to make it a proper and useful contract, it is good ; 2 Bulst. 136, Rogers v. Parry ; though that case is wrongly reported, as appears by the roll which I have caused to be searched (it is B. E. Trin. 11 Jac. 1 Piot. 223), and the resolution of the judges was not grounded upon its being a particular restraint, but upon its being a particular restraint with a consideration, and the stress lies on ^he words, as the case is here, though, as they stand in the book, they do not seem material. Noy, 98 ; W. Jones, 13 ; Cro. Jac. 596 : in that case (/<), all the reasons are clearly stated, and, indeed, all the books, when carefully examined, seem to concur in the distinction of restraints general and restraints particular, and with or without consideration, which stands upon very good foundation : Volenti nonfit injnria ; a man may, upon a valuable consideration, by his own consent, and for his own profit, give over his trade, and part with it to another in a particular place. Palm. 172, Brcujci v. Stanner; the entering upon the trade, and not whether the right of action accrued by bond, promise or covenant, was the consideration in that case. Vide March's Eep. 77, but more particularly Allen's, 67, where there is a very remarkable case, which lays down this distinction, and puts it upon the consideration and reason of the thing. Secondly, I come now to make some observations that may be useful in the understanding of these cases. And they are, Ist. That to obtain the sole exercise of any known trade (A) Broad v. JoJlyJc. MITCHEL r. REYNOLDS. 395 throughout England, is a complete monopoly, and against the policy of the law. 2nclly. That when restrained to particular places or persons, (if lawfully and fairly obtained,) the same is not a monopoly. 3rdly. That since these restraints may be by custom, and custom must have a good foundation, therefore the thing is not absolutely, and in itself, unlawful. 4thly. That it is lawful upon good consideration for a man to part with his trade. 5thly. That since actions upon the case are actions injur larnm, it has been always held that such actions will lie for a man's using a trade contrary to custom, or his own agreement ; for there he uses it injuyioush/. 6thly. That where the law allows a restraint of trade, it is not unlawful to enforce it with a penalty. 7thly. That no man can contract not to use his trade at all. 8thly. That the particular restraint is not good without just reason and consideration. Thirdly, I proposed to give the reasons of the differences which we find in the cases ; and this I will do, 1st. With respect to involuntary restraints, and 2ndly. With regard to such restraints as are voluntary. As to involuntary restraints, the first reason why such of these as are created by grants and charters from the crown and by-laws, generally are void, is drawn from the encouragement which the law gives to trade and honest industry, and that they are contrary to the liberty of the subject. 2ndly. Another reason is drawn from Magna Charta, which is infringed by these acts of power ; that statute says, mdlus liher homo, dec, disseisetur de lihero tcnemcnto vel Uhcrtatihus, vel liberis consuetudinihus suis, cCr., and these words have been always taken to extend to freedom of trade. But none of the cases of customs, by-laws to enforce these customs, and patents for the sole use of a new invented art, are within any of these reasons ; for here no man is abridged of his liberty, or disseised of his freehold ; a custom is lex loci, and foreigners have no pretence of right in a particular society, exempt from the laws of that society ; and as to new invented arts, nobody can be said to have a right to that which was not 396 MITCHEL V. REYNOLDS. in being before ; and therefore it is but a reasonable reward to ingenuit}^ and uncommon industry. I shall show the reason of the differences in the cases of voluntary restraint. 1st. Negatively. 2ndly. Affirmatively. I. Negativehj ; the true reason of the disallowance of these in any case, is never drawn from Magna Charta ; for a man may, voluntarily, and by his own act, put himself out of the posses- sion of his freehold ; he may sell it, or give it away at his pleasure. 2ndl3\ Neither is it a reason against them that they are contrary to the liberty of the subject ; for a man may, by his own consent, for a valuable consideration, part with his liberty : as in the case of a covenant not to erect a mill upon his own lands ; W. Jones, 13 ; Mich. 4 Ed. 3, 57. And when any of these are at any time mentioned as reasons upon the head of voluntary restraints, they are to be taken only as general in- stances of the favour and indulgence of the law to trade and industry. 3rdly. It is not a reason against them, that they are against law, I mean in a proper sense, for in an improper sense they are. All the instances of conditions against law in a proper sense, are reducible under one of these heads : 1st. Either to do something that is malum in sc, or malum iwoldhitum ; 1 Inst. 206. 2ndly. To omit the doing of something that is a duty ; Palm. 172 ; Hob. 12 ; Norton v. Sims. 3rdly. To encourage such crimes and omissions ; Fitzherb. tit. Ohlifjation, 13; Bro. tit. Ohlif/ation, 34; Dyer, 118. Such conditions as these, the law will always, and without any regard to circumstances, defeat, being concerned to remove all temptations and inducements to those crimes ; and there- fore, as in 1 Inst. 206, a feoffment shall be absolute for an un- lawful condition, and a bond void. But from hence I would infer, 1st. That where there may be a way found out to perform the condition, without a breach of the law, it shall be good ; Hob. 12; Cro. Car. 22; Perk. 228 (/). (i) See anir, j". 371. MITCHEL V. REYNOLDS. 397 2ndly. That all things prohibited {j) by law may be restrained by condition ; and therefore these particular restraints of trade, not being against law, in a proper sense, as being neither mala in se, nor mala proldhlta, and the law allowing them in some instances, as in those of customs and assumpsits, they may be restrained by condition. 11, Affirmatively ; the true reasons of the distinction upon which the judgments in th.ese cases of voluntary restraints are founded are, 1st, the mischief which may arise from them, 1st, to the party, by the loss of his livelihood, and the subsistence of his family ; 2ndly, to the public, by depriving it of a useful member. Another reason is, the great abuses these voluntary restraints are liable to : as, for instance, from corporations who are per- petually labouring for exclusive advantages in trade, and to reduce it into as few hands as possible ; as likewise from masters, who are apt to give their apprentices much vexation on this account, and to use many indirect practices to procure such bonds from them, lest they should prejudice them in their custom when they come to set up for themselves. 3rdly. Because, in a great many instances, they can be of no use to the obligee ; which holds, in all cases of general restraint throughout England ; for what does it signify to a tradesman in London what another does at Newcastle ? (A-) and surely it would be unreasonable to fix a certain loss on one side, without any benefit to the other. The Eoman law would not enforce such contracts by an action ; see Puff. lib. 5, c. 2, sect. 3 ; 21 H. 7, 20. 4thly. The fourth reason is in favour of these contracts, and is, that there may happen instances wherein they may be useful and beneficial, as to prevent a town from being overstocked •with any particular trade ; or in case of an old man, who finding himself under such circumstances, either of body or mind, as that he is likely to be a loser by continuing his trade, in this case it will be better for him to part with it for a con- sideration, that by selling his custom he may procure to himself a livelihood, which he might probably have lost by trading longer. 5thly. The law is not so unreasonable as to set aside a man's own agreement for fear of an uncertain injury to him, and fix a certain damage upon another ; as it must do, if contracts with (?) Read " not prohibited." (k) See (1894) A.C. 547, 553. 398 MITOHEL V. REYNOLDS. a consideration were made void ; Barrow v. Wood, March Eep. 77 ; Mich. 7 Ed. 3, 65 ; Allen 67 ; 8 Co. 121. But here it may be made a question, that, suppose it does not appear whether or no the contract be made upon good con- sideration, or be merely injurious and oppressive, what shall be done in this case ? Resp. I do not see why that should not be shown by plead- ing; though certainly the law might be settled either way without prejudice ; but as it now stands, the rule is, that wherever such contract stat indifferenter, and, for aught appears, may be either good or bad, the law presumes it prima facie to be bad, and that for these reasons : 1st. In favour of trade and honest industry. 2ndly. For that there plainly appears a mischief, but the benefit (if any) can be only presumed ; and in that case, the pre- sumptive benefit shall be overborne by the apparent mischief. 3rdly. For that the mischief (as I have shown before) is not only private, but public. 4thly. There is a sort of presumption, that it is not of any benefit to the obligee himself, because, it being a general mischief to the public, everybody is affected thereby : for it is to be observed that, though it be not shown to be the j)arty's trade or livelihood, or that he had no estate to subsist on, yet all the books condemn those bonds, on that reason, viz., as taking away the obligor's livelihood, which proves that the law pre- sumes it ; and this presumption answers all the difficulties that are to l)e found in the books. As, 1st, That all contracts, where there is a bare restraint of trade and no more, must be void ; but this, taking place only where the consideration is not shown, can be no reason why, in cases where the special matter appears, so as to make it a reasonal)'.e and useful contract, it should not be good ; for there the presumption is excluded, and therefore the courts of justice will enforce these latter contracts, but not the former. 2ndly. It answers the objection, that a bond does not want a consideration, but is a perfect contract without it ; for the law allows no action on a nudum pactum, but every contract must have a consideration, either expressed, as in assumpsits, or implied, as in Ixmds y,ni\. covenants; but these latter, though they MITCHEL V. liEYXOLDS. 399 are perfect as to the form, yet may be void as to the matter ; as in a covenant to stand seised, which is void without a con- sideration, though it be a complete and perfect deed. 3rdly. It shows why a contract not to trade in any part of England, though with consideration, is void ; for there is some- thing more than a presumption against it, because it can never be useful to any man to restrain another from trading in all places, though it may be to restrain him from trading in some, unless he intends a monopoly, which is a crime. 4thly. This shows why promises in restraint of trade have been held good ; for in those contracts it is always necessary to show the consideration, so that the presumption of injury could not take place, but it must be governed by the special matter shown. And it also accounts not only for all the resolutions, but even all the expressions that are used in our books in these cases ; it at least excuses the vehemence of Judge Hull in 2 H. 5, fol. quinto; (l) for suppose (as that case seems to be) a poor weaver, having just met with a great loss, should, in a fit of passion and concern, be exclaiming against his trade, and declare that he would not follow it anymore, &c., at which instant, some designing fellow should work him up to such a pitch, as, for a trifling matter, to give a bond not to work at it again, and after- wards, when the necessities of his family and the cries of his children send him to the loom, should take advantage of the forfeiture, and put the bond in suit ; I must own, I think this such a piece of villany, as is hard to find a name for ; and there- fore cannot but approve of the indignation that judge expressed, though not his manner of expressing it. Surely it is not fitting that such unreasonable mischievous contracts should be counte- nanced, much less executed by a Court of Justice. As to the general indefinite distinction made between bonds and promises in this case, it is in plain words this, that the agreement itself is good, but when it is reduced into the form of a bond, it immediately becomes void ; but for what reason, see 3 Lev. 241. Now, a bond may be considered two ways, either as a security, or as a compensation ; and, 1st. Why should it be void as a security ? Can a man be bound too fast from doing an injury ? which I have proved the using of a trade contrary to custom or promise, to be. (■') See post, p. 402, 400 MITCHEL V. REYNOLDS. 2ndly. Why should it be void as a compensation ? Is there any reason why parties of full age, and capable of contracting, may not settle the quantum of damages for such an injury? Bract., lib. 3, c. 2, s. 4. It would be very strange, that the law of England, that {m) delights so much in certainty, should make a contract void when reduced to certainty, which was good when loose and uncertain : the cases in March's Piep. 77, 101, and also Shoio. 2, are but indifferently reported, and not warranted by the authorities they build upon. 1st Objection. In a bond the whole penalty is to be recovered, but in assumpsit only the damages. Resj). This objection holds equally against all bonds what- soever. 2nd Objection. Another objection was, that this is like the case of an infant, who may make a promise but not a bond, or that of a sheriff who cannot take a bond for fees. Besj). The case of an infant stands on another reason, viz., a general disability to make a deed, but here both parties are capable ; neither is it the nature of the bond, but merely the incapacity of the infant, which makes a bond by him void, since there a surety would be liable ; but it is otherwise here. Also the case of a sheriff' is very different ; for at common law he could take nothing for doing his duty, but the statute has given him certain fees ; but he can neither take more, nor a chance for more, than that allows him. 3rd Object. It was further objected, that a promise is good, and a bond void, because the former leaves the matter more at large to be tried by a jury ; but what is there to be tried by a jury in this case ? Eesji. 1st. It is to be tried whether upon consideration of the circumstances the contract be good or not ? and that is matter of law, not fit for a jury to determine. 2ndly. It is to ascertain the damages. But cui bono (say they) should that l)e done ? Is it for the benefit of the obligor ? liesj). Certainly it may be necessary on that account, for these reasons : — 1st. A bond is a more favourable contract for him than a {m) Grantham v. Gordon, 1 P. Williams, Gil. .MITCIIKL ?'. REYNOLDS. 401 promise ; for the penalty is a re-piirehase of his trade ascertained beforehand (ii), and on payment thereof he shall have it again; he may rather choose to be l)onnd not to do it under a jienalty, than not to do it at all. 2ndly. However it be, it is his own act. 3rdly. He can suffer only by his knavery, and surely courts of justice are not concerned lest a man should pay too dear for being a knave. 4thly. Ilestraints by custom may (as I have proved) be enforced with penalties which are imposed without the party's consent ; nay, by the injured party without the concurrence of the other ; and if so, then a fortiori he may bind himself by a penalty. Object. It may perhaps be objected, that a false recital of a consideration in the condition may subject a man to an incon- venience, which the law so much labours to prevent. Bcsj). But this is no more to be presumed than false testimony, and in such a case I should think the defendant might aver against it ; for though the rule be, that a man is estopped from averring against anything in his own deed, yet that is, supposing it to be his deed ; for where it is void, it is otherwise, as in the case of an usurious contract {<>). The application of this to the case at bar is very plain. Here the particular circumstances and consideration are set forth, upon which the court is to judge, whether it be a reasonable and useful contract. The plaintiff took a baker's house, and the question is whether he or the defendant shall have the trade of this neighbourhood ? The concern of the public is equal on both sides. What makes this the more reasonable is, that the restraint is exactly proportioned to the consideration, vi^., the term of five years. To conclude. In all restraints of trade, where nothing more appears, the law presumes them bad ; but, if the circumstances are set forth, that presumption is excluded, and the court is to judge of those circumstances, and determine accordingly ; and if {n) lu e(iuit3', however, if it appears Fox v. Scard, 33 Beav. 327 ; Howard v. that it was intended that tlie act shouki Woodward, 34 L. J. Ch. 47 ; Nat. Pro- not be done at all, a party cannot acquire vincial Bank v. Marshall, 40 Ch. D. the right to do the ace by pacing the 112; Hanburjj v. Cundy, 58 L. T. 155. penalt}', and an injunction will be (o) Accord, Collins v. Blantern, ante, granted to restrain him tVuni doing it ; p. 355. S.L.C. VOL. I. 26 402 MITCHEL V. REYNOLDS. upon them it appears to be a just and honest contract, it ought to be maintained. For these reasons we are of opinion, that the plaintiff ought to have judgment. All restraints (if trade jL^j'ima facie bad. Exception if restraint be partial and upon good consideration. Rule of old cases that partial re- straint valid if considera- tion adequate. Conditions of validity. 1. Old rule tliat rcsti'aint must 1)0 par- tial in space, " The general rule is, that all restraints of trade, which the law so much favours, if nothing more appear, are bad. This is the rule which is laid down in the famous case of MitcJiel V. Reynolds, which is well reported in 1 P. Wms. 181, in which Lord Macclesfield took such great pains, and in which all the cases and arguments in relation to this matter are thoroughly weighed and considered : but to this general rule there are some exceptions ; as, first, if the restraint be only particular in respect to the time or place, and there be a good consideration given to the party restrained. A contract or agreement upon such considera- tion, so restraining a particular person, may be good and valid in law, notwithstanding the general rule, and this was the very case of Mitchcl v. Reynolds ; " j^er Willes, C.J., Gunmakers' Co. v. Fell, Willes, 388. The same principles were recognised in Gale v. Reed, 8 East, 83, and in a variety of cases, both previous and subsequent, jjarticularly in Chesman v. Nainlnj, 2 Str. 739, 1 Bro. P. C. 234, which received the successive decisions of the K. B., C. P., and H. L. The reader will find all the earlier authorities col- lected in Young v. Timmins, 1 Tyr. 226, where the rule to be collected from them was thus stated by Vaughan, B. : "Any agreement b}' bond or otherwise in (/e/icroi restraint of trade, is illegal and void. But such a security given to effect a partial restraint of trade may be good or bad, according as the consideration is adequate or inadequate." In order, therefore, that a contract in restraint of trade may be valid, it seems to have been considered that the restraint nnist be partial as to space ; it must be upon a consideration not merely colourable ; and it must be reasonable. The rule seems formerly to have been that the restraint must be partial as to space. It was decided so early as the reign of Henry V. tliat a contract imposing a general restraint on trade was void. Indeed, Hull, J., flew into a passion at the very sight of a bond imposing such a con- MITOHEL V. EEYNOLDS. 408 (Ution, and exclaimed, with more fervour than decency : " A ma intent voiis purres aver demurre sur luy que Tobli- gation est voide eo que le condition est encounter common le}^, et per Dieu, si le ijlaintijf fuH ic)/, il irra cd prison tanque il list fait fine au lioy ; " 2 Hen. V., fo. 5, pi. 2G. " The law," said Best, C.J., in Homer v. Ashford, 3 Bing. 328, " will not permit any one to restrain a person from doing what his own interest and the public welfare require that he should do. Any deed, therefore, by which a person and that re- binds himself not to employ his talents, his industry, or his '^i^^ ^^^j^^. capital in any useful undertaking i/i t/^e /i;m(/f?o/«, would be tlom"voicl. void. But it may often happen that individual interest and general convenience render engagements not to carry on trade, or to act in a profession, in a particular place, proper." Such partial restraints were upheld in Chcsinanv. Nainhy, Instances snpra; in Clerk v. Comer, Cas. temp. Hardw. 53, where a restiaiuts bond was conditioned not to carry on trade within the city upheld ; of Westminster, or the bills of mortality; in Davis v. Mason, 5 T. R. 118'; and in Bunn v. Guy, 4 East, 190, where an attorney bound himself not to practise within London, and 150 miles from thence ; see the remarks on this case in Bozon v. FarloiD, Meriv. 472. In Leighton v. Wales, 3 M. 6 W. 545, the restraint was against running any coach on a particular road. In Proctor v. Sargent, 2 M. & Gr. 31, it was against carrying on the business of cowkeeper, milk- man, or milkseller, within five miles of Northampton Square ; see Benicell v. Inns, 24 Beav. 307. In Ilannie v. Irvine, 7 M. & Gr. 969, it was against soliciting the custom of, or knowing!}' supplying bread or flour to, any of the customers then dealing at a baker's shop, the lease and goodwill of which were sold ; and in Mumford v. Gething, 7 C. B. N. S. 305, the restraint was upon a commercial traveller, and against his ever travelling for any other firm than the plaintiffs' within the district within which they employed him. In JVard v. Byrne, 5 M. & AV. 548, a bond conditioned and frencml not to follow or be emploved in the business of a coal le'^^'-nnts held . . . void. merchant for nine months was held void. So in Hinde v. Gray, 1 M. & Gr. 195, was a covenant not to carr}- on the business of a brewer, or merchant, or agent for the sale of ale, in S. or elsewhere, or in any other manner soever be concerned in that business during ten years ; but perhaps that might now be considered a valid covensint so far as it related to S., though void as to the rest; see post, p. 413. In some cases, however, this rule was not followed. 26 2 404 MITCHEL V. REYNOLDS. In some cases this rule not followed. Now not necessar}' that restriction be partial as to space. Distance, how measured. 2. Adequacy of considera- Thus, in Whittaker v. Howe, 3 Beav. 383, the agreement was by a solicitor not to practise in Great Britain for twentj; 3-ears without the consent of the persons to whom he had sold his business ; and Lord Langdale, " having regard tc the nature of the profession, and to the limitation of time," upheld the contract. In Leather Cloth Co. v. Lorsont, S Eq. 345, James, V.-C, enforced a restriction extending throughout Europe, saj'ing, "I do not read the cases as laying down that unrebuttable presumption which was insisted uj)on with so much power. All the cases, when the}^ come to be examined, seem to establish this principle, that all restraints upon trade are bad as being in violation of public policy, unless they are natural and not unreason- able for the protection of the parties." And in Rousillon v, EousiUon, 14 Ch. D. 351, an agreement not to carry on business as a champagne merchant was enforced by Fry, J, The whole question whether there ever was a rule thai the restraint must be partial was elaborately considered in Nordcnfelt v. Maxim-Nonlenfclt Co., (1893) 1 Ch. 630, (1894) A. C. 535, where Lord Herschell, and Bowen, L.J. (in tht C. A.), expressed a clear opinion that such a rule had existed: while Lord Macnaghten was equally clear that it had not, The decision in this case, however, makes it clear that having regard to the changed conditions of commerce an< of the means of communication, that rule is no longei applicable, and the question is, in every case, whether th( restraint is reasonable or not. Where the restraint is partial as to space, and the agree- ment is silent as to the mode of ascertaining the distance the measurement should be in a straight line from point tc point. " I should have thought," said Parke, J., in Leigl V. Hind, 9 B. & C. 774, "that the proper mode of ad measuring the distance would be to take a straight lin( from house to house, in common parlance, as the crow Hies.' This view was acted upon in Dnvjnan v. Walker, 1 Johns 440 ; and finally adopted by the P]x('h. Cham, in Moujict v Cole, L. It. 8 Kx. 3'2, where the authorities on the questioi were reviewed, and it was laid down that the distance shoul( be measured on the map. In Atki/iis v. Kinuier, 4 Exch 770, the deed expressh' i)rescribed lu)w the measuremen sliouhl be made, namely, b}' " measuring by the usual street or Wiiys of apj)roach." U))on the second point, inimely, tlic coitsideration, sonn C'liitiisioii, rather verbal llnin substantial, at one time crep MITCHEL V. REYNOLDS. 405 into the judi^^nients. Thus in Younn v. Timmins, 1 Tyr. tion— old ■ . . . ' ^ ruls. 226, where I. bound himself to work exclusively for certain persons for his and their lives, and they did not undertake to find him full employ, but on the contrary, reserved to themselves liberty to employ others, the contract was held to be void for want of adequacy of consideration, though it contained a proviso under which I. was allowed to take and execute the orders of persons residing in London or within six miles thereof. " If I could find," said Bayley, B., " any obligation on the defendants to find the bankrupt a supply of work sufticient to keep him and his workmen in an adequate and regular course of employ, that might be a good consideration for the restraint he thus imposes on himself. But if no such thing exists, but, on the contrary, I find it possible that no emplo}' might, for a considerable time, be given to him, then there is no adequate con- sideration." " The restraint on one side meant to be enforced," ^said Lord Ellenborough, in Gale v. Reed, 8 East, SQ, " should in reason be co-extensive only with the benefits meant to be enjoyed on the other." In Hitchcock v. Coke?', 6 A. & E. 439, however, Hitchcock v. Tindal, C.J., in delivering the judgment of the Exch. ^°^^''- Cham, said : "If by ' adequacy of consideration ' it is consfdCTatioa intended only that there must be a good and valuable cannot now be consideration, such consideration as is essential to support any contract not under seal, we concur in that opinion But if by ' adequacy of consideration ' more is intended, and that the court must weigh whether the ■consideration is equal in value to that which the party gives up or loses by the restraint under which he has placed himself, we feel ourselves bound to diti'er from that doctrine. . It is enough, as it appears to us, that there actually is a consideration for the bargain and that such consideration is a legal consideration and of some value." That case perhaps turned less on adequacy than reasonable- ness. In the course of the argument, Alderson, B., observed, that " if the consideration were so small as to be colourable, the agreement would be bad." In Archer V. Marsh, 6 A. & E. 966, the Q. B. pronounced Hitchcock V. Coker to have decided that the parties must act on their own view as to the adequacy of the compensation ; and in Leighton v. Wales, 3 M. & W. 545, 551, Parke, B., said: *' It is clear, since Hitchcock v. Coker, that the court cannot inquire into the extent or adequacy of the consideration." 406 MITCHEL V. REYNOLDS. Pilkington V. Scott. How consis- tent with rule that there must be some consideration even in such deeds. Because con- tract other- wise un- reasonable ; and all sucli contracts are 'pr and facie voiil if not shown to Ije reasonable. The same doctrine was emphatically repeated in PilJcington V. Scott, 15 M. & W. 657, where the contract was not under seal, and the law ma}' now be considered settled, as there stated by Alderson, B. : " If it be an unreasonable restraint of trade, it is void altogether ; but if not, it is lawful ; the only question being whether there is a consideration to support it, and the adequacy of the consideration the court will not inquire into, but will leave the parties to make the bargain for themselves. Before the case of Hitchcock v. Cokcr, a notion prevailed that the consideration must be adequate to the restraint ; that was in truth the law making the bargain, instead of leaving the parties to make it, and seeing only that it is a reasonable and proper bargain." See also Grarch/ v. Barnard, 18 Eq. 518. If there be objected to this view an inconsistency with the decisions {Huttoii v. Parker, 7 Dowl. 739) that to create a valid restraint of trade some consideration is necessary, even in the case of a contract under seal (which in general wants no consideration), the answer is easy; it is this, that consideration is here required for a different reason from that whereon the ordinary' law of contracts without consideration rests, the reason being that it would be mircasonahle for a man to enter into such a stipulation without some consideration, though it must be left to his sense of his own interest to determine what should be the amount or nature of that consideration. And this appears to have been the view taken by Parke, B., in Wallis v. Day, 2 M. & W. 277, and by the Court of Exch. in Mallan V. May, 11 Id. 665, where Parke, B., in delivering the judgment, recognised the proposition of Tindal, C.J., in Horner v. Graves, 7 Bing. 744, that " contracts in restraint of trade are in themselves, if nothing shows them to be reasonable, bad in the eye of the law : " and proceeded to add, that " therefore if there be simply a stipulation, though in an instrument under seal, that a trade or profession shall not be carried on in a particular place, without any recital in the deed, jind without any averments showing circum- stances wliich rendered sucli a contract reason ahle, the instrument is void." And it seems not improbable, now that the doctrine of adequacy of consideration is overturned l)y IlifrJieoek V. Coker, and Archer v. JSIarsh, that several of tlie coiiti'acts, wliich i'ornu ily would have been open to the objection of ina'i'f'V'^iuitics, as it is called, is of com- paratively modern introduction. Its objects were, indeed, at a very ancient period of English law, in some degree ac- complished by a maxim which is recognised b.y our earliest writers, viz., that i^ropcrty has certain inseparable incidents, among which is the rigid of aliening it by the assurances appropriated by the law to that piurpose, of which incidents it cannot be deprived by any private disposition. One of the earliest cases in which this doctrine was maintained is reported by Littleton, sect. 7'20, who tells us that "a cer- tain Justice of the Common Pleas dwelling in Kent, called Hichel, had issue divers sons, and his intent was that his eldest son should have certain lands and tenements to him and the heirs of his body begotten, and, for default of issue, the remainder to the second son, &c., and so to the third son, &c. ; and because he would that none of his sons should alien or make warrantie to bar or hurt the others that should be in the remainder, &c., he causeth an indenture to be made to this efiect, viz., that the lands and tenements were given to his eldest son, upon such condition, that if the eldest son alien in fee, or in fee t:nl, &c., or if any of the sons alien, &c., that then their estate should cease, and be void, and that then the same lands and tene- ments immediately should remain to the second son, and the heirs of his body begotten, et sic ultra, the remainder to his other sons ; and livery of seisin was made accord- ingly." This device, however, was held void ; and Mr. Butler remarks, in a learned note to Co. Litt. 379 b, the nerusal of which is strongly recommended to readers desirous of pursuing this subject, that "this was one of the many attempts which have been made to restrain that right of alienation which is inseparable from the estate of a tenant in tail. The chief of them are stated in a very pointed manner by j\Ir. Knowler, 1 Burr. 84." Upon tlie same principle, viz., that property cannot by any private disposition be robbed of its incidents, of whicli the power of alienation is one, proceeds the case put by Littleton, s. BGO, viz.: "Also if a feolfment l)e made on this condition, tltat tlie feojj'cc shall not alien the land to any, this condition is void, because when a niiin is enfeofted of lands or tenements, he liatli power to alien them to any MITOIIEL V. KEYNOLDS. 417 person, b}' the law. For, if such a condition should be good, then the condition should oust him of all the powei- wiiich the hxw gives him, \vlii(di should be against reason ; and therefore such a condition is void." On which I^ord Coke observes that "the like law is of a devise in fee on So of devise condition that the devisee shall not alien ; the condition is void ; and so it is of a grant, release, confirmation, or any other conveyance, whereby a fee simple doth })ass ; for it is absurd and repugnant to reason that he that hath no possi- bility to have the land revert to him should restrain his feoffee in fee simple of all his power to alien ; and so it is if a man be possessed of a lease for years, or of a horse, or of any other chattel, real or ))ersonal, and give or sell his whole interest and property therein, upon condition that the donee or vendee shall not alien the same, the same is void ; because his whole interest and property is out of him, so as he hath no possibility of a reverter, and it is against trade and traffic, and bargain ing and contracting hctween man and man ; "'Co. Litt. 223 a ; see Shep. Touch. 131 ; RosJier v. Eosher, 26 Ch. D. 801 ; Corbett v. Corbett, 13 P. D. 136, 14 Id. 7. On this doctrine, viz., that property cannot be deprived Exception to of the power of alienation legally incident to it, by an}^ Kestraint oV private disposition, equity has engrafted one exception, by anticipation allowing married women to be restrained from aliening, by wmnen'with'^ way of anticipation, property limited to their sole and separate separate use during tlie coverture. This equitable doctrine is fully considered in the notes to Huhne v. Tenant, in White & Tudor's L. C. in Equity, vol. i. To return to the head of perpetuities. It Avas in time Perpetuities: ,. T , , , . ,, 1 rule tliat re- lound that the interests of commerce were by no means gtraint must sufficiently guarded by the assertion of the maxim, that not extend property could not be robbed of the quality of transfer- or "lives in ability : for it would have been easy to limit particular ^^'ug and 21 •^ . , "^ , , . years aiter, estates m such a manner as to postpone the actual enjoy- ment of the fee so long as to create what would have been virtually, though not nominally, a strict entail ; had not the courts, proceeding on the maxim of law, quodcunque pro- hibetur fieri ex directo prohihetur et per obliquum , established, as an inflexible rule, " that though an estate may be rendered inalienable during the existence of a life, or of any number of lives, in being, and twenty-one years after ; Cadell v. Palmer, 10 Bing. 140 ; or possibly even for nine months beyond the twenty-one years, in case the person ultimately S.L.C. — VOL. I. 27 418 MITCHEL V. REYNOLDS. Perpeixiities. entitled to the estate should be an infant ui rentic sa mere at the time of its accruing to him ; yet, that all attempts to postpone the enjoyment of the fee for a longer period are void ; " and, further, that an estate cannot be limited to any unborn person for life followed b}^ an estate to any child of such unborn person; see Whitbij v. Mitchell, 42 Ch. D. 494. Therefore, in S2)encer v. Marlhorour/Jt, 3 Bro. P. C. 232, where John Duke of Marlborough devised to trustees and their heirs, to the use of his daughter for life, remainder to Lord Ryalton for life, remainder to trustees to preserve contingent remainders, remainder to the first and other sons of Lord Ryalton in tail male, remainder to Lord Robert Spencer for life, remainder to trustees to preserve contingent remainders. Sec, remainder to Charles Spencer in the same manner, and inserted a clause empowering his trustees, on the birth of each son of Lord Ryalton, Lord Robert, and Charles Spencer, to revoke and make void the respective uses limited to their respective sons in tail male, and in lieu thereof to limit the premises to the use of such sons for their lives with immediate remainder to the respective sons of such sons severally and respectively in tail male. Lord Northington declared the clause void, as tending to a per- petuity ; and, on appeal to the Lords, the judges were unani- mousl}' of the same opinion. See Cruise's Digest, title 32, c. 23 ; Beard v. Westcott, 5 B. & Ad. 801 ; Cadell v. Palmer, sniyra ; and Mr. Butler's note, Co. Lift. 379 b. See also Hardhuj v. Nott, 7 E. A: B. 650; Lewis, on The Laiv of Perpetuiiij ; 1 Jarman on Wills, 5th ed., 213 ; and Kej^pell Where person V. Bailey, 2 M. t^'. K. 517. In Gilhertson v. Richards, 4 to take is jj ^ ^_ 277, 5 Id. 453, where in a mortgage in fee, with a ascertained. _ ' ' ... power of sale on default, and covenants for quiet enjoyment until def;iult, a proviso that on entry for default the land should be charged with a rent-charge payable to the mort- gagor and his iissigns was held to be valid, the Kxch. Cham. doubted whether the rule as to })erpetuities applied where the party who is, or whose heirs are, to take, and who can dispose of, release, or alienate the estate, is ascertained, l)ut did not decide the case upon this point. In accordance with this exi)rcssion of opinion, and with the decision of the Court of Kxch. in the sanu) case, I'ry, ^., upheld a covenant to give an unlimited right of i)re-emption of land, on the ground that the covenantor and covenantee together could at any tinu; alienate tiie land absolutely ; Binningham Co. V. Cartwriijitt, 11 Ch. D. 421. This decision was over- MITCH EL V. REYNOLDS. 419 ruled, however, in L. (C- ,S'. W. II. Co. v. Gomm, 20 Id. IV-ipetuities. 562. Lord Coke laid it down, 1 Inst. 200, that "if a feotlee Bondbyfeof- be bound in a bond that the feoffee and his heirs shall not ^HeJI^^^ooj alien, this is good, for he may notwithstanding alien, if he according to will forfeit his bond that he himself hath nuule." And in ^'^^^' Freeman v. Freeman, 2 Yern. 233, a father settled lands on his son in tail, taking a bond from him that he would not . 923. As appraisement is expressly rerpiired by 11 G. 2, c 19, s. 8, growing corn, &c., must still be ap])raised in all cases, in spite of tlie partial repeal of 2 W. \- M. c. 5, by 51 ^l- 52 Vict, c 21. Miicliinery fixed t<> tlic freehold, not for the improvement or ])rofital>l(; use of the hind, hut only for tlie purpose of being more conveniently used as machinery, e.g., a mule SIMPSON V. HARTOPP. 427 used for spinning cotton, attached to a floor, but " capable of removal without the least injury to the fabric of the building or itself," retains its chattel character, and may be distrained for rent ; Hellaicell v. Eastwood, 6 Exch. 295, where the law laid down is correct, even if misapplied to the facts; see Holland v. Hodf/so)!, L. R. 7 C. V. 828; Waterfall v. Poiistone, 6 E. iS: B. 876; V.-C. Wood's doubt in Mather v, Fraser, 2 K. & J., being due to his erroneous assumption that fixtures can be distrained for rent. In Turner v. Cameron, L. R. 5 Q. B. 306, railway rails and sleepers, which could not be removed without disturl)iiig the surface of the soil, were held not distrainable ; see Ward V. I>i(dlei/, 57 L. T. 20. A landlord who includes fixtures in his notice of distress, EIFeet of aad ex2>resses an intention to sell them, is not liable as for ti^lturesfn an unlawful distress if the fixtures are not actually seized or notice of severed; Beck v. DcnJdgh, 29 L. J. C. P. 273; see also '^''*''''- 2)ost, p. 497. There is a distinction, in questions of fixtures, between cases of landlord and tenant and cases of mortgagor and mortgagee ; and between the right to distrain and the right to remove ; see notes to Elires v, Maires, jwst, vol. ii. 2. Things delivered to a person exercising a public trade, 2. Things de- 7 -7 7 _! 7 7 '7-^7 J" livered to a to be carried, wrought, worked up, or managed in the wag of person in the his trade or emplog. That this class of property is exempt way of his from distress has never been questioned; nee Gishourn \. Hurst, Salk. 249 ; 1 Inst. 47 a ; and Gibson v. Ireson, 3 Q. B. 39, where the phrase "public trade " was discussed. ?*Ieaniii,t( of But the dispute has always been in ascertaining whetber the l'"^^*- goods in each particuhxr case were so circumstanced as to fall within the rule. The examples commonly cited as being clearly within it, are those of cloth bailed to a tailor to make a garment, or a horse standing in a smith's shop to be shod. So, too, goods of the principal in the factor's Instances of hands cannot be distrained by the factor's landlord ; Gilman ^'"^^ ^°'^' V. Elton, 3 B. & B. 75 ; for the advancement of trade as much requires that goods should be placed in a factor's hands for sale, as in a carrier's for carriage ; and, on the same principle, goods deposited for safe custody in a ware- house or a wharf are not distrainable for rent due in respect thereof; Thompson v. Mashiter, 1 Bing. 283; Matthias \. Mesnard, 2 C. & P. 353. It has also been decided that goods deposited on the premises of an auctioneer for tlie purposes of sale are privileged from a distress for rent duo in respect of those premises ; Adams v. Grane, 3 Tyr. 326 ; 42S SIMPSON V. HAKTOPP. for, to use the ^YOl•fls of Ba^'le}', B., " Interest rcipuhlicce to bring bu3'ers and sellers together at fixed places, where goods may be brought for the purposes of sale and exchange. This privilege is, therefore, of great importance to the owners of goods, who should not be exposed to the risk of losing them from the default of the parties on whose pre- mises they may be deposited for that purpose." This is so, though the place is only temporarily used for the purpose of an auction, and the auctioneer is wrongfully there; Brown v. Arnndell, 10 C. B. 54; and though it is only a yard attached to the premises ; Williams v. Holmes, 8 Exch. 861 ; but the pri- vilege is confined to goods on the auctioneer's premises, and does not extend to goods in his custody, but on the owner's premises ; Li/ons v. Elliott, 1 Q. B. D. 210. Similarly, goods pledged with a pawnbroker cannot be taken as a distress ; Swire v. Leach, 18 C. B. N. S. 479 ; nor can furniture placed in a depository; Miles v. Furher, L. R. 8 Q. B. 77; nor carriages on premises of a commission agent for their sale; Findon v. M'Laren, 6 Q. B. 891. In Brown v. Slier ill, 2 A. & E. 138, a beast was sent to a butcher's premises to be slaughtered, and, after it had been slaughtered, the carcass was seized for rent due from the butcher ; it was held not distrainable. This species of privi- lege, as was remarked by Bayley, B,, in Adams v. Grane, 3 Tyr. 326, "has been from time to time increased in extent, according to the new modes of dealing established between parties by the change of times and circumstances, one of which modern modes of dealing is the case of a factor." His lordship, in the same case, approved an observation in Black- stone's Commentaries, that" the exemption from liability to distress, in a case of this sort, occasions no hardship, be- cause the privilege is generally applicable to goods which no man could possibly suj^pose to be the projjert}' of the indi- vidual from whom the rent is due." Instances In Muspvatt V. Grefiori/, 1 M. lI- W. 633, 3 Id. 678, it was iiiivilc'i. held that a barge, which a ])erson, nu^aning to purchase salt, sent to saltworks to carry it home, was not privileged from distress for arrears of a rent-cliarge ; see, however, as to the case of a, carriage actually containing pi'ivileged goods, Head v. liinieji, Cro. Eliz. 596 ; Gishoiini v. I hirst, Salk. 243. In Joiilr V. Jarlson, 7 M. & W. 450, it was held that brewers' casks, Ifl't. ;irc()i'diiig to the usage of trade on a, publican's 'riiiiij^H iiiii.-,! jjrcmiscs wilii liccr, are not privileged. Tilings to come «l'I')h'!')c(i' within the (■xce})ti()n must be sent or ddirercd to a person in SIMPSON V. HAKTOPP. 429 the way of his trade. AVheie, therefore, a ship in course of construction, and in respect of which all instalments of })ur- chase-mone}^ then due hud been paid, was distrained upon by the builder's luiuUord, it was held that, even assuniinti; that the property in so much of the ship as had been Ijuilt had passed to the buyer, the ship did not come within the exception, and the distress was valid ; Clarke v. Milhcall Docks, 17 Q. B. I). 494. In Francis v. Wijatf, 1 W. Bl. 483, the court seemed strongly inclined to think that a carriage standing in the yard of a livery-stable was distrainable for rent due from the keeper of the livery-stable ; an opinion acted upon in Parsons V. Gingcll, 4 C. B. 545 ; but see Miles v. Furhcr, L. R. 8 Q. B. 77, where the correctness of the latter decision was doubted. In Wood V. Clarice, 1 Tyr. 314, it was held that, though mate- rials delivered by a manufacturer to a weaver, to be manu- factured by him at his own home, were privileged from distress for rent due to the weaver's landlord (see Gibson v. Ircson, 3 Q. B. 30), yet that a frame or other machinery de- Machiuerv livered by the manufacturer to the Aveaver alonc; witli the "^''^K^'^^'^^l ^f' '' ... workmen fi>r materials, for the purpose of being used in the weaver's imqiose ot house in manufacturing such materials, was not privileged, ^^"°''^^^"S "I' <3 ^ _ ' i tTi 5 material. unless there were other goods sufficient to satisfy the rent ; for the privilege applies only to the materials and not to the machinery by which the}^ are to be worked up. The prin- ciple laid down in this case (approved in Fenion v. Logan, 9 Bing. 676) still holds good ; but by the 6 & 7 Vict. c. 40, s. 18, absolute immunity from distress for rent now attaches to frames, looms, machinery, materials, tools, and apparatus, intrusted (whether for hire or no) for the purpose of being used or worked up in any woollen, linen, cotton, flax, mohair or silk manufacture, unless tlie rent be due from the owner or part-owner. Cattle put to graze or rest on land while on their way to market are privileged; Nugent v. Kirica)i, 1 Jebb. & S. 97. 3. Things ivJiicli cannot he restored in. the same jiligJit ; see 3. Thino's Wilson V. Ducket, 2 Mod. 61. The reason for this exemp- ^'^^* eaimot_ tion is, that, the distress being at common law merely a same plight. pledge, things are not distrainable which cannot be restored in the same plight as they were in at the time of seizure. Hence "butcher's meat cannot be distrained ; Morley v. Pincomhe, 2 Excln 101. Cocks and sheaves of corn were Sheaves of within this exemption ; but by 2 W. & M. c. 5, sheaves or ^'^'? '^^'^" , ,. , 'ill- trainable by cocks 01 corn, or loose corn and hay lying upon any part statute. 18U SIMPSON V. HARTOPP. Money. 4. Things in actual use. Two more cases of abso- lute privilege. .">. Animals fine nuturce. Deer in park. 1 )(t''H of tlie land charged with the rent, may be seized, secured, and locked up in the place where found, in the nature of a distress, until replevied ; but the same must not be removed, to the damage of the owner, from such place ; and the land- lord has, it w^ould seem, no option, but must sell at tbe expiration of five days ; i^er Parke, B., 1 M. & W. 448. The benefit of this statute, since 4 Geo. 2, c. 28, s. 5, extends to the grantee of a rent-charge ; Johnson v. Faulkner, 2 Q. B. 925 ; but the benefit of 11 G. 2, c. 19, s. 8, does not ; Miller v. Gree)t, 2 Tyr. 1. Loose money, apparently, comes within the exemption, because it cannot be identified ; but not money in a sealed bag ; see Bac. Abr., Distress, B. ; 1 Roll. Abr. 667. Qiuere, as to selling the latter. 4. Things in actual use. These, as the text informs us, are privileged in order to prevent the breach of the peace which might be occasioned by an attempt to distrain tbem ; see Field v. Adanies, 12 A. & E. 652, w-here a replication that the things were in actual use was held good ; and Buncli V. Koininfiton, 1 Q. B. 679, where it was bad for want of sufficient arernieiiis. The above four sorts of property are the only sorts where absolute freedom from distress could be deduced from Simpson v. Hartopp. It is, however, proper to observe, that there are two other descriptions of goods absolutely privi- leged from distress at common law. 5. Animals ferce natnne, and other things, wherein no valuable property is in any person ; Finch, 176 ; Bro. Abr., Property, pi. 20 ; Com. Dig., D/s^/v'.s.s, C. ; Keilway, 30 b; Co. Lit. 47 a ; 1 Ilolle's Abr. 666. But deer in an inclosed f^round not being a park are not within this exception ; Davies V. Powell, Willes, 47 ; nor deer in a park, unless they are wild, according to Morgan v. Ahergavenng, 8 C. B. 768 ; from which latter case, if it be law, it seems to follow that if tenant for life of a park feed deer so as to diminish their wildness, he is in peril of an action for waste, qucere ; see Ford V. Tgnte, 31 Ij. J. Ch. 177, where Morgan v. Aber- gavenny was acted upon. Dogs have been said to be protected from distress on the ground that they are animals ferre natiirce ; but it is clear tliat this cannot be now said of them, 2 Bl. Comm. 391 ; III id tliut there may ncnv be a valual)le property in them ; see ])er Willes, CJ., in Davies v. Poirell, Willes, 46. Indeed, even in Fjord Coke's time, trespass or trover would lie for a dog {Filoivs Case, 12 lien. 8, 3, pi. 3), without SIMPSON V. HARTOPP. 431 averring it to be tame ; see Ireland v. Jliijijins, ('ro. Kliz. 125; Com. lYig., Action on the Case npon Trover, C; Binstead v. Buck, 2 W. Bl. 1117 ; Sandijs v. Hodr/Hon, 10 A. & E. 472 ; and 1 Wms. Saund. 84. Yet Lord Coke (Co. AcconlinK to Lit. 472) includes do^s and upon his authority Kolle (Abr. V"'^*''""!') Dist. H.), Comyns (Dig. DisL C), Viner (Abr. Dist. H.), Bacon (N. Abr. Dist. B.), Blackstone (3 C'omm. 8), Stephen (Coinm. 8th ed. vol. iii. 249), and Burton (Comp. 1014), all include dogs in the class of things not distrainable, because not the subject of valuable property, being animals fcrfe naturte. It is, however, to be observed tbat Lord Coke Sedqurrre. himself classes dogs, more correctly it would seem, among creatures domitce naturtc, in which men may have a property, 4 Inst. 109 ; although that property appears to be in some sense of a base kind ; see the Case of Shhuis, 7 Hep. 18 a, 1 Hawk. P. C. 314 and 511, where the reason why dogs were not at common law the subject of larceny is stated to be that, although a property may exist in them, yet, "in respect of the baseness of their nature, they shall never be so highly regarded at law that for their sakes a man shall die ; " and Filon-'s Case, si(2)ra, wliere Eli(jt, J., went so far in his dep]"eciation of these animals as to lay down that dogs are vermin, and for that reason the Church would not debase herself by taking tithes of them, though in Rastal, Ent. 611 b, pi. 10, 1, (see 1 Wms. Saund. 84) it appears that you may justify a battery in defence of your dog. Accord- ing to criminal law, dogs, though the theft of them is punishable under 8 Vict. c. 47, s. 2, are not to be con- sidered goods or chattels ; li. v. Ilobi)ison, 28 L. J. M. C. 58 ; Cox v. Burhidije, 13 C. B. N. S. 430; but they are goods within 2 & 3 Vict. c. 71, s. 40; II. v. Slade, 21 Q. B. D. 433. In Davics v. Poiccll, supra, Willes, C.J., took exception to Lord Coke's rule regarding animals not distrainable, as ])eing " plainly too general, for it is extended to dogs, yet it is clear now that a man may have a valuable j)roperty in a dog." Several text-writers have, in reliance ui^on this opinion, distinctly asserted that dogs are distrainable ; see, for instance, Burn's Justice, Distress, 2. It may be admitted that, if by the common law the remedy by distress did not apply to dogs specifically, no alteration in their qualities, or in the law relating to other remedies respecting them, could render them distrainable : for the maxim " cessante ratione cessat et ipsa lex " does not show that a liability of this 43i SIMPSON V. HARTOPP. clescri2:)tion will arise whenever the reason for an exemption from it has ceased ; yet it is not improbable that Lord Coke, in the passage referred to above, was onl}' stating the general common law rule with reference to things of no value, and giving what, in his opinion, were instances of the application of that rule. With regard to other animals, rooks in a rookery are not the subject of proper t}'; Hcuinani v. Mockett, 2 B. & C. 934; but young partridges under a hen are; li. V. Slilckle, 1 C. C. R. 158 ; linnets trained as decoy birds are " domestic " animals ; Colam v. Pagett, 12 Q. B. D. 66 ; not so rabbits lately caught for coursing ; Aplin v. Pornitt (1893), 2 Q. B. 57 ; nor caged lions ; Harper v. Marcks (1894), 2 Q. B. 319. 3. Things in Q^ TJiiuqs in the custodi/ of tlie [air, such as propertv custody Ol 1111 r "^ ' ■ • -IT 4rr ' the hiw. already taken damage feasant or m execution ; 1 Inst. 47 a ; Gilb. hist., ed. 1757, p. 44 ; Eaton v. Southhij, Willes, 131 ; Peacock v. Purvis, 2 B. & B. 362 ; Wright v. Deices, 1 A. & E. 641 ; whether in the hands of the sheriff or of his vendee ; Wharton v. Naylor, 12 Q. B. 673; but the vendee must remove them within a reasonable time ; Re Davis, 54 L. T. 304. 56 G. 3, I3y 56 G. 3, c. 50, the purchaser from a sheriff' of corn, hay, straw, or other produce, if severed, or of turnips, whether drawn or growing, which he has agreed to consume on the premises, is protected from a distress by the landlord upon such produce ; and animals, carts, and implements of the imrchaser, which are upon the premises for the purpose of carrying out the agreement, are similarl}^ protected. Grow- ing crops sold b}' the sheriff were protected from distress until a reasonable time for their removal had elapsed ; Peacock v. Purvis, 2 B. & B. 362 ; Wright v. Dewes, 14 .^i 15 Vict. 1 A. & E. 641 ; but by 14 & 15 Vict. c. 25, s. 2, such grow- ^' ~'^' ing crops are liable to distress, for rent accruing due after the seizure and sale, in default of sufiicient distress of the tenant's goods. 8 Anno, c. 14. By 8 Anne, c. 14 (c. 18, Rev. Stat.) the landlord is entitled to be paid the rent due at the time of the slierift"s seizure, 51 & 52 Vict not exceeding one year's rent ; and by the County Courts ^' ■'■ Act, 1888, s. 160, the bailiff" who has seized must distrain for certain arrears of rent, on receiving written notice from the landlord. Under the latter Act the bailiff" can distrain only upon the goods of the execution debtor ; Beard v. Knight, 8 E. & B. 865 ; Foulger v. Taylor, 5 H. & N. 202; IlugJies v. SmalUcood, 25 (^. J3. D. 306. t'ccdsin Goods in the possession of a High Court receiver can be SIMPSON V. HARTOPP. 433 (listruined upon. But before actual distress, leave of the possession court should be obtained ; Sutton v. licesi, 82 L. J. Ch. 437 but see Walsh v. Walsh, 1 Tr. Eq. 20!). The Companies Act, 18(52, s. 1G8, makes void any dis- Goods of ,. 1 . , 1 i' . 1 iusolvent tress enforced agamst a company s goods alter the com- companies. mencement of its winding up by, or subject to the super- vision of, the court ; but this section applies only where the company is tenant to the landlord who distrains ; lie Lundy Granite Co., 6 Ch. 462 ; Re Ilefinit U. S. Stores, 8 Ch. D. 616 ; and where the goods distrained are goods of the company ; Re New City ConstitiUional Club Co., 84 Ch. D. 646, in which Ex j). Clemence, 28 Cli. D. 154, is questioned. The section applies whether the rent accrued due before or after the winding-up. Where the section applies, leave can, nevertheless, be obtained from the court to distrain. Such leave will be granted, if it be shown that it is inequitable to insist on the section, or if the rent ought to be paid as one of the expenses of winding-up : e.g., where possession has been retained for the company's benefit ; Re Lancashire Cotton Spinning Co., 35 Ch. D. 656 ; Shackell v. Chorlton, (1895) 1 Ch. 378 ; Re Oak Pitts Co., 21 Ch. D. 322 ; see Re House and Land Trust, 42 W. R. 572, wliere leave was refused ; but, generally, it will not be granted in respect of rent accrued due before the winding-up ; Id. In the case of his tenant's bankruptr-y a landlord's right Goods of T , • 1 • ; i) 1 ■ T -J 1 1 ii bankrupts, to distrani upon his tenant s goods is limited by the Bankruptcy Act, 1883, s. 42, and tlie Bankruptcy Act, 1890, s. 28. These sections allow the landlord to distrain both before and after the commencement of the bankruptcy ; but provide that if the distress be levied after its commence- ment it shall be "available only for six months' rent accrued due prior to the date of the order of adjudication." When the rent is payable quarterly, and the tenant is adjudged banla'upt during a quarter, an apportioned part of the rent for that part of the quarter which has elapsed prior to the order of adjudication is " rent accrued due " within the meaning of the sections ; Re Howell, (1895) 1 Q. B. 844. The sections do not apply to a distress for rent accruing due after the order of adjudication; Ex p. Hale, 1 Ch. D. 285 ; nor to any distress upon goods which are not the bankrupt's ; Brocklehurst v. Laic, 26 L. J. Q. B. 107 ; nor, apparently, to any distress by a superior landlord, or to any distress upon a bankrupt's goods where they are upon the premises of a third person and are distrained upon for S.L.C. — VOL. I. 28 434 SIMPSON r. HARTOPP. Thiuffs conditionally privileged. Beasts of the plough, im- plements of husbandry, and beasts which im- prove the land. Instruments of trade. Beasts of the plough dis- trainable for poor-rates. Reason. Things condi- tionally privi- leged distrain- able before growing crops. Wliere land- lord hiis coii- Hcnted tliat .strangers' goods shull be exenijit. rent due in respect of such premises. Except so far as the sections apply, bankruptcy is no bar to a landlord's rights of distress ; Briggs v. Soivry, 8 M. & W. 729 ; Re Collins, 21 L. R. Ir. 508 ; Ex p. Hale, supra ; see also Re Birmingham Gas Co., 11 Eq. 615 ; Ex p. Till, 16 Eq. 97 ; Exp. Harrison, 13 Q. B. D. 750. Next with respect to propcrti) conditionally privileged at commonlaw. Ofthisthe Chief Justice enumeratestwo classes: 1. Beasts of the plough and instruments of husbandry ; Davies v. Aston, 1 C. B. 746 ; to which should be added beasts which improve the land, as sheep, whether the tenant's or not; Keen v. Priest, 4 H. & N. 236 ; Com. Dig., Distress, C. ; and 51 H. 3, st. 8, declaratory of the law, but now repealed. Colts, steers, and heifers do not fall within this class ; Keen v. Priest, supra. 2. The instruments of a man's trade or profession. These species of property are privileged, provided that there be other sufficient distress upon the premises; see Co. Lit. 47 a, b ; Fenton v. Logan, 9 Bing. 676 ; Gorton v. Falkner, 4 T. R. 565 ; and if there be, trespass will lie for taking them; Nargett v. Nias, 1 E. & E. 439. It is, how- ever, settled that beasts of the plough ma}' be distrained for poor-rates, though there are other distrainable goods on the premises, more than sufficient to answer the value of the demand; Hutcliins v. Chambers, 1 Burr. 579. This decision proceeded on the analogy between such a distress and an execution ; see Stevens v. Evans, 1 W. Bl. 283, which shows that strangers' goods cannot be seized for rates. It must further be observed, with respect to things privileged sub modo, that, even though there be a sufficient distress besides, yet if that distress consists of growing crops, dis- trainable only by statute, and not immediately productive, the landlord need not avail himself of it, but may distrain the things privileged sub modo ; Piggott v. Birtles, 1 M. i)c AV. 441. And possibly the principle of this decision may here- after be thought to extend to every case of a distress given by statute but not liable to precisely the same rules of treatment as a distress at common law. To tlie above exceptions it may be well to add, that a landlord cannot distrain upon strangers' goods, brought on to the premises under his express or implied promise til at tliey shall be exempt from distress ; Horsford v. |fV'/>.s7,cr,"5 Tyr. 409; Giles v. Spencer, 3 C. B. N.S. 253; but see Welsh v. Rose, 6 Bing. 638. SIMPSON V. HARTOPP. 435 It is said that straiiEfers' cattle, which have strayed on to Staying cattle the premises without their owners' default or knowledge, and by reason of defective fences where the landlord or his tenant ought to repair them, are not distrainable until they have been on the premises for a night and a day and actual notice has been given to the owner, and he has neglected to take them away ; Bullen, IJist. 103 ; Kemp v. Crews, Raym. 168. Besides the privileges already referred to, tliere remain Statutory- various statutory privileges still to be noticed. 1. By the Law of Distress Amendment Act, 1888, s. 4, goods and chattels protected by the County Court Act from seizure in execution are exempt from distress, unless the tenancy has expired and possession has been demanded and the distress is made not earlier than seven days after such demand. By the County Court Act, 1888, s. 147, these goods and chattels now are " the wearing apparel and bedding of the debtor or Necessaries. his family-, and the tools and implements of his trade to the value of 5L" In Churchward v, Johnson, 54 J. P. 326, a sewing machine, hired by a tenant for the use of his wife, who applied what she earned through usmg it in maintaining the household, was held an implement of his trade. 2. By the Agricultural Holdings Act, 1883, s. 45, in case 46 & 47 Vict. of holdings to which that Act applies (s. 54) : Agricultural (1) Agricultural or other machinery, which is the bond I'oW'ngs- fide property of a person other than the tenant, and is on the premises under an agreement with the tenant for its hire or use in the conduct of his business, is exempt from distress. (2) Live stock of all kinds which is the ho)id fide pro- perty of a person other than the tenant, and is on the premises solely for breeding purposes, is also exempt. By s. 61, live stock includes any animal capable of being distrained. (3) Live stock belonging to another person which the tenant has " taken in" for agistment "at a fair price " is exempt from distress, if there is other sufficient distress. In default of other sufficient distress, the amount recover- able by distress of such stock is not to exceed the amount of such "fair price" remaining unpaid; but such stock may be so distrained as long as it remains on the premises. The "fair price" need not be payable in money. An}' " fair equivalent " will suffice ; London cO Yorkshire Bank v. Beltoii, 15 Q. B. D. 457 ; but the price must be payable for 28 2 486 SIMPSON V. HARTOPP. the agistment onl}^, and not as rent for use and occupation ; Masters v. Green, 20 Q. B. D. 807. 34 & 35 Vict. 3. By the Lodger's Goods Protection Act, 1871, the T , goods of lodgers are protected, under certain conditions. Lodgers. !-> o i > j from distress by a superior hmdlord. If the superior hmdlord levies or authorises a distress, for rent due from his immediate tenant, upon a lodger's goods, the lodger may serve the landlord or his bailiff with a declaration, stating, (1) that the immediate tenant has no property or beneficial interest in the goods ; (2) that they are the property or in the lawful possession of the lodger ; (3) what rent, if any, is due, and for what period, from the lodger to his immediate landlord. An inventory of the goods, subscribed by the lodger, must be annexed to the declaration. Upon the service of this declaration, and upon payment by the lodger to the superior landlord or his bailiff of the rent so due, or of so much of it as suffices to dis- charge his claim, the lodger's goods become protected from the distress. The declaration must be made after the distress has been made or authorised. It is therefore inoperative against a subsequent distress neither made nor authorised at the time of the declaration ; Tliwaites v. Wilding, 12 Q. B. D. 4. It need not state that the declarant is a lodger. If no rent is due from the lodger, it need not say so expressly. If it does not say whether an}^ rent is due, it must be read as stating that none is due ; Ex }^. Harris, 16 Q. B. D. 130. Whether a person is or is not a lodger is a question of fact; Ness v. Stephenson, 9 Q. B. D. 245; depending on the circumstances of the case ; Bradley v. Baylis, 8 Q. B. D. p. 219, per Jessel, M.K. He may be a lodger though he has the right to occupy a very considerable part of a house ; Phillips V. Henson, 3 C. P. D. 26 ; or though his landlord does not, either by himself or his agent, sleep or reside in it ; Morton v. Palmer, 51 Ij. J. Q. B. 7 ; or though he has a separate and uncontrolled power of ingress or egress ; Toms V. Luckett, 5 C. B. 23, j)er Maule, J ; Ness v. Stephenson, siqyra ; but to be a lodger he must live and sleep on the premises, occupation merely for business purposes being insufficient ; Ileawood v. Pone, 13 Q. B. 1). 179. Ambassadors 4. The goods of Foreign Ambassadors or Ministers and tlieir servants are protected by 7 Anne, c. 12, s. 3. The following cases show what persons are entitled to this privilege ; Triquet v. Bath, 3 Burr. 1478 ; Lockwood v. SIx\IP80N V. HARTOPP. 437 Coysfiarne, Id. 1676; Hophins v. Dc Pioheck, 3 T. R. 79; Novella v. Toogood, 1 B. & C. 554 ; Macartney v. Garhutt, 24 Q. B. D. 368 ; Re Clocte, 65 L. T. 102. See also the notes to Mosfyii V. Fahricias, x>ost, p. 630. 5. Biiilway rolling stock, not being the tenant's, is i)ro- Railway roll- tected, if properly marked, by 35 & 36 Vict. c. 50. The i»^ stock, &c. Gasworks Clauses Acts, 1847, s. 14, and 1871, s. 18, and the Waterworks Clauses Acts, 1847, s. 44, and 1863, s. 14, respectively provide for the protection of gas and water meters, fittings, etc. A gas stove let by a gas company for hire is a " gas fitting ; " GaslifiJit cO Coke Co. v. Hardy, 17 Q. B. D. 619. Electric lines, meters, etc., are protected by the Electric Lighting Act, 1882, s. 25. According to Ex p. Parke, 18 Eq. 381, where land is held Tenants in by tenants in common under separate demises, a distress ^°™'^o" i ' under sepa- for the rent due from any one tenant can be made only upon rate demises. his separate goods ; and, hence, where such tenants are partners,, and each of them owes rent, their i)artnership ])roperty cannot be seized, though their landlord be one and the same person. SCOTT V. SHEPHERD. EASTER— U GEO. 3. C. P. [reported 2 W, BLACKSTONE, 892.] Trespass and assault will lie for originally throwing a squib which, after having been thrown about in self-defence by other persons, at last put out the plaintiff's eye. Trespass and assault {a) for throwing, casting and tossing a lighted squib at and against the plaintiff, and striking him therewith on the face, and so burning one of his eyes, that he lost the sight of it, whereby, &c. On not guilty pleaded, the cause came on to be tried before Nares, J., last summer assizes at Bridgwater, when the jury found a verdict for the plaintiff with 100/. damages, subject to the opinion of the court on this case : — On the evening of the fair-day at Milborne Port, 28th Oct., 1770, the defendant threw a lighted sguih, made of gun- powder, &c., from the street into the market-house, which is a covered building supported by arches, and enclosed at one end, but open at the other and both the sides, where a large concourse of people were assembled ; which lighted squib, so thrown by the defendant, fell upon the standing of one Yates, who sold ginger- bread, &c. One Willis instantly, and to prevent injury to him- self and the said wares of the said Yates, took up the said lighted squib from off the said standing, and then threw it across the said market-house when it fell upon another standing there of one Piyal, who sold the same sort of wares, who instantly, and to save his own goods from being injured, took up the said lighted squib from off the said standing, and then threw it to another part of the said market-house, and, in so throwing it, struck the plaintiff, then in the said market-house, in the face therewith, and, the coml)ustil)l() matter then l)ursting, put out one of the plaintiff's eyes. (Jn. If this action be maintainable? This case was argued last term by Gli/n, for the plaintiff, and Jhirland, for the defendant: and this Term, the Court, being {«) S. C. 3 Wil.s. 403. SCOTT /;. SHEPHEKD. 439 divided in their judgment, delivered their opinions scnatiin. Nares, J., was of opinion that trespass would lie well in the present case. That the natural and probable consequence of the act done by the defendant was injury to somebody, and therefore the act was illegal at common law. And the throwing of squibs has, by statute W. 3 (h), been since made a nuisance. Being therefore unlawful, the defendant was liable to answer for the consequences, be the injury mediate or immediate. 21 Hen. 7, 28, is express that maliifi (iitii)U(s is not necessary to constitute a trespass. So, too, 1 Stra. 596 ; Hob. 134 ; T. Jones, 205 ; 6 Edw. 4, 7, 8 ; Fitzh. Trcspcu^s, 110. The principle I go upon is what is laid down in Reynolds v. Clarke, 1 Stra. 634, that, if the act in the first instance be unlawful, trespass will lie. Wherever, therefore, an act is unlawful at first, trespass will lie for the con- sequences of it. So, in 12 Hen. 4, trespass lay for stopping a sewer with earth, so as to overflow the plaintiff's land. In 26 Hen. 8, 8, for going upon the plaintiff's land to take the boughs oft" which had fallen thereon in lopping. See also Hardr. 60 ; Eeg. 108, 95; 6 Ed. 4, 7, 8 ; 1 Ld. Raym. 272; Hob. 180; Cro. Jac. 122, 43; F. N. B. 202, 91, g. I do not think it necessary, to maintain trespass, that the defendant should personally touch the plaintiff; if he does it by a mean it is sufficient. Qui faeit per aUud facit 2^cr sc. He is the person who, in the present case, gave the mischievous faculty to the squib. That mischievous faculty remained in it till the explo- sion. No new power of doing mischief was communicated to it by Willis or Piyal. It is like the case of a mad ox turned loose in a crowd. The person who turns him loose is answerable in trespass for whatever mischief he may do. The intermediate acts of Willis and Ryal will not purge the original tort in the defendant. But he who does the first wrong is answerable for all the consequential damages. So held in the King v. Hiu/gins, 2 Ld. Eaym. 1574; Parhhurst v. Foster, 1 Ld. Eaym. 480; Roseivell v. Prior, 12 Mod. 639. And it was declared by this court, in Slater v. Baker, M. 8 Geo. 3, 2 Wils. 359, that they would not look with eagle's eyes to see whether the evidence applies exactly or not to the case : but if the plaintiff has {b) 9 & 10 AV. 3, c. 7 ; repealed, 23 k 24 Vict. c. 139 ; see, now, 38 k 39 Vict, c. 17, s. 80, 440 SCOTT V. SHEPHERD. (Nares, J.) obtained a verdict for such damages as he deserves, they will establish it if possible. Bz^ACKSTONE, J., was of Opinion that an action of trespass did not lie for Scott against Shepherd, upon this case. He took the settled distinction to be, that where the injury is immediate, an action of trespass will lie ; where it is only consequential, it must be an action on the case ; lleynolds v. Clarke, Ld. Eaym. 1401, Stra. 634; Haicard v. Bankes, Burr. 1114; Marker v. Birkheck, Burr. 1559. The lawfulness or unlawfulness of the original act is not the criterion ; though something of that sort is put into Lord Eaymond's mouth in 1 Stra. 635, where it can only mean, that, if the act then in question, of erecting a spout, ha^ been in itself unlawful, trespass might have lain ; but as it was a lawful act (upon the defendant's own ground), and the injury to the plaintiff only consequential, it must be an action on the case. But this cannot be the general rule ; for it is held by the court in the same case, that, if I throw a log of timber into the high- way (which is an unlawful act), and another man tumbles over, and is hurt, an action on the case only lies, it being a conse- quential damage ; but, if in throwing it I hit another man, he may bring trespass, because it is an immediate wrong. Trespass may sometimes lie for the consequences of a lawful act. If in lopping my own trees a bough accidentally falls on my neigh- bour's ground, and I go thereon to fetch it, trespass lies. This is the case cited from 6 Edw. 4, 7. But then the entry is of itself an immediate wrong. And ease will sometimes lie for the consequence of an unlawful act. If by false imprisonment I have a special damage, as if I forfeit my recognizance thereby, I shall have an action on the case ; p>er Powel, J., 11 Mod. 180. Yet here the original act was unlawful, and in the nature of trespass, y^o that lawful ov u) da u-ful is quite out of the case; the solid distinction is between direct or immediate injuries on the one hand, and 'mediate or consequential on the other. And trespass never lay for the latter. If this be so, the only question will be whether the injury wliicli tlio plaintiff suffered was immediate or consequenticd only ; and I hold it to be the latter. The original act was, as against Yates, a trespass ; not as against Eyal or Scott. The tortious act was complete SCOTT V. SHEPHERD. 441 when the squib lay at rest upon Yates's stall. He, or any bystander, had, I allow, a right to protect themselves by removing the squib, but should have taken care to do it in such a manner as not to endamage others. But Shepherd, I think, is not answerable in an action of trespass and assault for the mischief done by the squib in the new motion impressed upon it, and the new direction given it, by either Willis or Eyal ; who both ^\ere free agents, and acted upon their own judgment. This differs from the cases put of turning loose a wild beast or a madman. They are only instruments in the hand of the first agent. Nor is it like diverting the course of an enraged ox, or of a stone thrown, or an arrow glancing against a tree ; because there the original motion, the vis impressa, is continued, though diverted. Here the instrument of mischief was at rest, till a new impetus and a new direction ar^' given it, not once only, bu': by two successive rational agents. But it is said that the act is not complete, nor the squib at rest, till after it is spent or exploded. It certainly has a power of doing fresh mischief, and so has a stone that has l)een thrown against m}' windows, and now lies still. Yet, if any person gives that stone a new motion, and does farther mischief with it, trespass will not lie for that against the original thrower. No doubt but Y"ates may maintain trespass against Shepherd. And, according to the doctrine con- tended for, so may Eyal and Scott. Three actions for one single act ; nay, it may be extended in iufimtum. If a man tosses a football into the street, and, after being kicked about by one hundred people, it at last breaks a tradesman's window, shall we have trespass against the man who first produced it? Surely only against the man who gave it that mischievous direction. But it is said, if Scott has no action against Shepherd, against whom must he seek his remedy? I give no opinion whether case would lie against Shepherd for the consequential damage ; though, as at present advised, I think, upon the circumstances, it would. But I think, in strictness of law, trespass would lie against Eyal, the immediate actor in this unhappy business. Both he and Willis have exceeded the bounds of self-defence, and not used sufficient circumspection in removing the danger from themselves. The throwing it across the market-house, instead of brushing it down, or throwing it out of the open sides 443 SCOTT V. SHEPHERD. (Blackstone, J.) into the street, (if it was not meant to continue the sport, as it is called), was at least an unnecessary and incautious act. Not even menaces from others are sufficient to justify a trespass against a third person ; much less a fear of danger to either his goods or his person ; nothing but inevitable necessity (c) ; Weaver V. Ward, Hob. 134 ; Dickenson v. Watson, T. Jones, 205 ; Gilbert V. Stone, Al. 35, Styl. 72. So in the case put by Bryan, J., and assented to by Littleton and Cheke, C.J., and relied on in Eaym. 467 : " If a man assaults me, so that I cannot avoid him, and I lift up my staff to defend myself, and, in lifting it un, unde- signedly hit another who is behind me, an action lies by that person against me ; and yet I did a lawful act in endeavouring to defend myself." But none of these great lawyers ever thought that trespass would lie, by the person struck, against him who first assaulted the striker. The cases cited from the Eegister and Hardres are all of immediate acts, or the direct and inevitable effects of the defendant's immediate act. And I admit the defendant is answerable in trespass for all the direct and inevitable effects caused by his own immediate act. But what is his own immediate act ? The throwing the squib to Yates's stall. Had Yates's goods been burnt, or his person injured, Shepherd must have been responsible in trespass. But he is not responsible for acts of other men. The subsequent throwing across the market-house by Willis is neither the act of Shepherd, nor the inevitable effect of it ; much less the subsequent throwing by Eyal. Slater v. Baker {d) was, 1st, a motion for a new trial after verdict. In our case the verdict is suspended till the determination of the court. And although after verdict the court will not look with eagle's eyes to sp}^ out a variance, 3'et when a question is put by the jury upon such a variance, and it is made the very point of the cause, the court will not wink against the light, and say that evidence, which at most is only applicable to an action on the case, will maintain an action of trespass. 2. It was an action on tlic case that was l)rought, and the court held the special case laid to be fully proved. So that the present question could not .'irise upon that action. 3. The same evidence that will maintain trespass may also frequently maintain case, (c) Sec Holmes v. Mntlitr, L. K. 10 Ex. 261. {d) 2 Wils. Sf^g. SCOTT V. shephe:rd. 443 but not e converso. Every action of trespass with a "per quod " includes an action on the case. I may bring trespass for the immediate injury, and subjoin a " j^cr quod " for the consequential damages; — or may bring case for the consequential damages, and pass over the immediate injury, as in the case from 11 Mod. 180, before cited. But if I bring trespass for an immediate injury, and prove at most only a consequential damage, judgment must be for the defendant ; Gates v. liayley, Tr, 6 Geo. 3, 2 Wils. 313. It is said by Lord Kaymond, and very justly, in Reynolds v. Clarke, "we must keep up the boundaries of actions, otherwise we shall introduce the utmost confusion." As I therefore think no immediate injury passed from the defendant to the plaintiff, (and without such immediate injury no action of trespass can be maintained), 1 am of opinion that in this action judgment ought to be for the defendant. Gould, J., was of the same opinion with Nares, J., that this action was well maintainable. The whole difficulty lies in the form of the action, and not in the substance of the remedy. The line is very nice between case and tresjMss upon these occa- sions : I am persuaded there are many instances wherein both or either will lie. I agree with Brother Nares, that wherever a man does an unlawful act, he is answerable for all the conse- quences ; and trespass will lie against him, if the consequences be in nature of trespass. But exclusive of this, I think the defendant may be considered in the same view as if he himself had personally thrown the squib in the plaintiff's face. The terror impressed upon Willis and Eyal excited self-defence, and deprived them of the power of recollection. What they did was therefore the inevitable consequence of the defendant s unlawful act. Had the squib been thrown into a coach full of company, the person throwing it out again would not have been answer- able for the consequence (e). What Willis and Eyal did was by necessity, and the defendant imposed the necessity upon them. As to the case of the football, I think that if all the people assembled act in concert, they are all trespassers: 1, from the general mischievous intent ; 2, from the obvious and natural consequences of such an act ; which reasoning will equally apply to the case before us. And that actions of trespass will lie for (c) See WhaUc>/ v. L. d- Y. R. Co., 13 Q. B. D. 131, 141. 444 SCOTT V. SHEPHERD. (Gould, J.) the mischievous consequen es of another's act, whether lawful or unlawful, appears from their being maintained for acts done in the plaintiff's own land ; Hardr. 60 ; Courtney v. Collett, 1 Ld. Eaym. 272. I shall not go over again the ground which Brother Nares has relied on and explained, but concur in his opinion, that this action is supported by the evidence. De Grey, C.J. : This case is one of those wherein the line drawn by the law between actions on the case and actions of trespass is very nice and delicate. Trespass is an injury accom- panied with force, for which an action of trespass vi et armis lies against the ]3erson from whom it is received. The question here is, whether the injury received by the plaintiff arises from the forje of the original act of the defendant, or from a new force by a third person. I agree with my brother Blackstone as to the principles he has laid down, but not in his application of those principles to the present case. The real question certainly does not turn upon the lawfulness or unlawfulness of the original act ; for actions of trespass will lie for legal acts when they become trespasses by accident ; as in the cases cited of cutting thorns, lopping of a tree, shooting at a mark, defending oneself by a stick which strikes another behind, &c. They may also not lie for the consequences of illegal acts, as that o: casting a log on the highway, &c. But the true question is, whether the injury is the direct and immediate act of the defendant, and- 1 am of opinion that in this case it is. The throwing the squib was an act unlawful, and tending to affright the bystander. So far mischief was originally intended ; not any particular mischief, but mischief indiscriminate and wanton. Whatever mischief therefore follows, he is the author of it : Egreditiir per- sonam, as the phrase is in criminal cases. And though criminal cases are no rule for civil ones, yet in trespass I think there is an analogy. Every one who does an unlawful act is considered as the doer of all that follows : if done with a deliberate intent the consequences may amount lo murder ; if incautiously, to manslaughter; Fost. 261. So, too, in 1 Ventr. 295, a person breaking a hoi'se in Lincohi's Inn Fields hurt a man ; held, that trespass lay : and, 2 Lev. 172, tliat it need not be laid scienter. I look upon all that was done subsequently to the SCOTT V. SHEPHERD. 445 original throwing as a continuation of the first force and first act, which will continue till the squib was spent by bursting. And I think that any innocent person removing the danger from himself to another is justifiable ; the blame lights upon the first thrower. The new direction and new force flow out of the firsb force, and are not a new trespass. The writ in tiie Eegister, 95 a, for trespass in maliciously cutting down a head of water, which thereupon flowed down to and overwhelmed another's pond, shows that the immediate act need not be instantaneous, but that a chain of eft'ects connected together will be sufficient. It has been urged that the intervention of a free agent will make a difference : but I do not consider Willis and Eyal as free agents in the present case, but acting under a compulsory necessity for their own safety and self-preservation. On these reasons I concur with Brothers Gould and Nares that the present action is maintainable. Posted for the plaintifl". The note to Scott v. ShcpJicrd, which was almost wholly tironnds for devoted to an examination of the distinction between the note to^Scott action of trespass and the act'on on the case, has been v- Shepherd. omitted since the (Jth edition. The provisions of the C. L. P. Act, 1852, with its ample powers of Amendment, deprived the distinction itself of practical importance except as a test of liability in particular cases, and the changes in the system of pleading introduced by the Judicature Act, 1873, entirely destroyed whatever significance still attached to the different forms of action. The case itself, however, has been retained, as it contains in a short compass not only much that is of interest to those who stud}'- the gradual development of the law, but also much that is of practical value upon the question of direct and consequential damage. No doubt, as was pointed out in the note, the distinction above referred to was sometimes a test of substantial liability, as for example in Sharrod v. L. d- S. W. M. Co., 4 Exch. 580, which, for want of being properly understood, Kail. Co. not has met with some animadversion. There the companv was 'le in rrcs- ■'■ •' jH/.ss tor injury sued in an action of trespass for an injury b}' a train to to cattle cattle which had strayed upon the railway, and was held i^.^iif^vay" °^ 44-6 SCOTT v. SHEPHERD. not to be liable in that form of action. A moment's reflec- tion will suggest that, if the company could be so sued, all questions of duty to fence, careful driving, &c., upon which the liability of the company ought to depend, would be excluded by the nature of the inquiry called for by the phiintifi*; and the case involves the substantive decision that a railway company is not liable for injury to cattle straying upon the line, unless it is alleged and proved that such injury was occasioned by its own or its servants' wrongful or negligent act. Another instance in which the matters considered in the principal case may still be of practical importance is to be found in that class of cases where it becomes necessary to determine whether a cause of action, the damage resulting from which is not apparent at the time, be barred by the Statute of Statute of Limitations. See Backhouse v. Bonomi, 9 H. L. C. 509, overruling some important dicta in Nicklin v. Williams, 10 Exch. 259 ; and Whitehouse v. Fellowes, 10 C. B. N. S. 765; Mitchell v. Darley Main Co., 14 Q. B. D. 125, 11 App. Cas. 127. For a modern case in which the law as to defending one's own property against a common enemy to the damage of one's neighbour was considered, see Whalley v. L. and Y. R. Co., 13 Q. B. D. 131. In Clark v. Chambers, 3 Q. B. D. 327, the defendant unlawfully placed a dangerous obstruction on the carriage- way of a road, which a third person removed on to the foot- path at the side of the road. The plaintiff, who was law- fully using the foot-path at night, was injured by the obstruction without any negligence on his part. The court held that the case came within the principle of Scott v. Shepherd, and that the defendant was liable. Limitatious. MILLER V. RACE. HILARY.— Zl GEO. 3. [kei'OUTED 1 BUiiii., 452.] Property in a bank-note jjasses like that in cash, by delivery ; and a party taking it hond fide, and for value, is entitled to retain it as against a former owner from whom it has been stolen. It was an action of trover against the defendant, upon a bank- note, for the payment of 21^. 10s. to one Wilham Finney, or bearer, on demand. The cause came on to be tried before Lord Mansfield, at the sittings in Trinity Term last at Guildhall, London : and upon the trial it appeared that William Finney, being possessed of this bank-note on the 11th Dec, 1756, sent it by the general post, under cover, directed to one Bernard Odenharty, at Chipping Norton, in Oxfordshire ; that on the same night the mail was robbed, and the bank-note in ques- tion (amongst other notes) taken and carried away b}' the robber ; that this bank-note, on the 12th Dec, came into the hands and possession of the plaintiff, for a full and valuable consideration, and in the usual course and wa}^ of his business, and without any notice or knowledge of the bank-note beino- taken out of the mail. It was admitted and agreed that, in the common and known course of trade, bank-notes are paid by and received of the holder and possessor of them, as cash ; and that, in the usual way of negotiating bank-notes, they pass from one person to another as cash, by delivery only, and without any further inquiry or evidence of title than what arises from the possession. It appeared that Mr. Finney, having notice of this robbery, on the 13th Dec, applied to the Bank of England " to stop the payment of this note ; " which was ordered accordingly, upon Mr. Finney's entering into proper security " to indemnify the bank." Some little time after this the plaintiff applied to the 448 MILLER V. RACE. bank for the payment of this note ; and, for that purpose, delivered the note to the defendant, who is a clerk in the bank ; but the defendant refused either to pay the note or to re-deliver it to the plaintiff. Upon which this action was brought against the defendant. The jury found a verdict for the plaintiff, and the sum of 21Z. lO.s. damages ; subject, nevertheless, to the opinion of this court upon this question — "Whether, under the circumstances of this case, the plaintiff had a sufficient property in the bank- note to entitle him to recover in the present action." Mr. Williams was beginning on behalf of the plaintiff. But Lord Mansfield said that, as the objection came from the side of the defendant, it was rather more proper for the defendant's counsel to state and urge their objection. Sir Richard Lloyd for the defendant. The present action is brought, not for the money due upon the note, but for the note itself, the paper, the evidence of the debt. So that the right to the money is not the present question : the note is only an evidence of the money's being due to him as bearer. The note must either come to the plaintiff by assignment, or must be considered as if the bank gave a fresh, separate, and distinct note to each bearer. Now, the plaintiff' can have no right by the assignment of a robber. And the bank cannot be considered as giving a new note to each bearer ; though each bearer may be considered as having obtained from the bank a new promise. I do not say whether the bank can or cannot stop pajanent : that is another question. But the note is only an instrument of recovery. Now, this note, or the goods (as I may call it), was the property of Mr. Finney, who paid in the money : he is the real owner. It is like a medal which might entitle a man to pay- ment of money, or to any other advantage. And it is by Finney's authority and request that Mr. Eace detained it. It may be objected, that this note is to be considered as cash "in the usual course of trade." But the course of trade is not at all affected by the present question, aljout the right to the note. A different species of action must be l>rought for the note from what must be brought against the bank for the money. And this man has elected to bring trover lor the note itself, as owner of the note; and not to bring liis action against the b;ink for the MILLER V. RACE. 449 money. In which action of trover property cannot be proved in the phiintiff, for a special proprietor can have no right against the true owner. The cases that may affect the present are 1 Salk. 126, M. 10 "VV. 3, AnonymoKs, coram Holt, C.J., at )iisi jjrius at Guildhall. There Lord Holt held that the righ. owner of a bank-bill, who lost it, might have trover against a stranger who found it ; but not against the person to whom the finder transferred it for a valuable consideration, "by reason of the course of trade, which creates a property in the assignee or bearer." 1 Ld. Eaym., 738, S.C, in which case the note was paid away in the course of trade : but this remains in the man's hands, and is not come into the course of trade. H. 12 W. 3, B. E., 1 Salk. 283, 284, Ford v. Hopkins, per Holt, C.J., at nisi prim at Guildhall : " If bank-notes, exchequer-notes, or million-lottery tickets, or the. like, are stolen or lost, the owner has such an interest or property in them as to bring an action, into whatsoever hands they are come. Money or cash is not to be distinguished : but these notes or bills are distinguishable, and cannot be reckoned as cash ; and they have distinct marks and numbers on them." Therefore the true owner may seize these notes wherever he finds them, if not passed away in the course of trade. 1 Strange, 505, H. 8 G. 1, in Middlesex, coram Pratt, C.J., Armory v. Delamiric : (a) a chimney-sweeper's boy found a jewel ; it was ruled that the finder "has such a property as will enable him to keep it against all but the rightful owner ; and, consequently, may maintain trover." This note is just like any other piece of property, until passed away in the course of trade. And here the defendant acted as agent to the true owner. Mr. Williams, contra, for the plaintiff. The holder of this bank-note, upon a valuable consideration, has a right to it, even against the true owner. 1st. The circulation of these notes vests a property in the holder who comes to the possession of it upon a valuable con- sideration.- 2ndly. This is of vast consequence to trade and commerce : and they would be greatly incommoded if it were otherwise. 3rdly. This falls within the reason of a sale in (a) See this case set forth at hirge, ante, p. 343. S.L.C. VOL. I. 29 450 MILLER V. EACK. (Argument for plaintiff.) market-overt ; and ought to be determined upon the same principle. First — He put several eases where the usage, course, and convenience of trade made the law, and sometimes even against an act of parliament ; 3 Keb. 444, Stanley v. Ayles, imr Hale, C.J., at Guildhall ; 2 Strange, 1000, Lumlei/ v. Palmer, where a parol acceptance of a bill of exchange was holden sufficient against the acceptor (h) ; 1 Salk. 23. Secondly — This paper credit has been always, and with great reason, favoured and encouraged ; 2 Strange, 946, Jenys v. Fawler. The usage of these notes is, " that they pass by delivery only ; and are considered as current cash ; and the possession always carries w4th it the property." 1 Salk. 126, pi. 5, is in point. A particular mischief is rather to be permitted than a general inconvenience incurred. And Mr. Finney, who was robbed of this note, was guilty of some laches in not preventing it. Upon Sir Richard Lloj^d's argument, a holder of a note might suffer the loss of it for want of title against a true owner, even if there was a chasm in the transfers of it through one only out of five hundred hands. Thirdly — This is to be considered upon the same foot as a sale in market-overt. 2 Inst. 713: "A sale in market-overt binds those that had a right." But it is objected by Sir Richard, " that there is a substantial difference between a right to the note, and a right to the money." But I say the right to the money will attract to it a right to the paper. Our right is not by assignment, but by law, by the usage and custom of trade. I do not contend that the robber, or even the finder of a note, has a riglit to the note ; but, after circulation, the holder upon a valuable consideration has a right. We have a property in this note ; and have recovered the value against the withholder of it. It is not material what action we could have brought against the bank. Then he answered Sir Richard Lloyd's cases ; and agreed that the true own(!r might pursue his property, where it came into the hands of another without a valuable consideration or not in {b) See now tlie Hills of Ext;h,aiif,'u parol acceptance of a bill of exchange is Act, 1882, s. 17, Kiili-s. 2, hy whicli a remlei-cd insufiicient. MILLER l\ KACE. 451 the course of trade : which is all that Lord Holt said in 1 Salk. 284. As to 1 Strange, 505, he agreed that the finder has the property against all but the rightful owner : not against him. Sir lUchanl LloijiJ, in reply. I agree that the holder of the note has a special property ; but it does not follow that he can maintain trover for it against the true owner. This is not only without, but against, the consent of the owner. Supposing this note to be a sort of mercantile cash ; yet it has an ear-mark, by which it may be distinguished ; therefore trover will lie for it. And so is the case of Ford v. Hopkins. And you may recover a thing stolen from a merchant, as well as a thing stjlen from another man. And this note is a mere piece of paper; it may be as well stopped as any other sort of mercantile cash (as, for instance, a policy which has been stolen). And this has not been passed away in trade ; but remains in the hands of the true owner. And therefore it does not signify in what manner they are passed away, when they are passed away ; for this was not passed awa}-. Here, the true owner, or his servant (which is the same thing), detains it. And surely robbery does not divest the property. This is not like goods sold in market-overt : nor does it pass in the way of a market-overt : nor is it within the reason of a market-overt. Suppose it was a watch stolen : the owner may seize it, though he finds it in a market-overt, before it is sold there. But there is no market-overt for bank-notes. I deny the holder's (merely as holder) having a right to the note, against the true owner : and I deny that the possession gives a right to the note. Upon this argument on Friday last, Lord Mansfield then said, that Sir Eichard Lloyd had argued it so ingeniously, that (though he had no doubt about the matter) it might be proper to look into the cases he had cited, in order to give a proper answer to them : and therefore the court deferred giving their opinion to this day. But at the same time, Lord Mansfield said, he would not wish to have it understood in the City that the court had any doubt about the point. Lord Mansfield now delivered the resolution of the court. After stating the case at large, he declared that at the trial he had no sort of doubt but that this action was well brought, and would lie against the defendant in the present case, upon the 29 2 452 MILLER V. KACE. (Judgment.) general course of business, and from the consequences to trade and commerce : which would be much incommoded by a contrary determination. It has been very ingeniously argued by Sir Eichard Lloyd, for the defendant. But the whole fallacy of the argument turns upon comparing bank-notes to what they do not resemble, and what they ought not to be compared to, liz., to goods, or to securities, or documents for debts. Now, they are not goods, nor securities, nor documents for debts, nor are so esteemed : but are treated as money, as cash, in the ordinary course and transaction of business, by the general consent of mankind ; which gives them the credit and currency of money, to all intents and purposes. They are as much money as guineas themselves are, or any other current coin, that is used in common payments, as money or cash. They pass by a will, which be- queaths all the testator's money or cash ; and are never considered as securities for money, but as money itself. Upon Lord Ailesbury's will (c), 900/. in bank-notes was considered as cash. On payment of them, whenever a receipt is required, the receipts are always given as for money, not as for securities or notes. So, on bankruptcies, they cannot be followed as identical and distinguishable from money : but are always considered as money or cash. 'Tis pity that reporters sometimes catch at quaint expressions tl at may happen to be dropped at the bar or bench ; and mistake their meaning. It has been quaintly said, " that the reason why money cannot be followed is, because it has no ear-mark ; " but this is not true. The true reason is, upuii acconnt of the mrrcncy of it : it cannot he recovered after it has j'assed in currenci/ {d). So, in case of money stolen, the true owner cannot recover it, after it has been paid away fairly and honestly upon a valuable and bond fide consideration : but before money has passed in currency, an action may he hronght for the money itself. There was a case in 1 G. 1, at tlie sittings, Thomas v. Whip, before Lord Macclesfield ; which was an action upon a.^siniipsit, by an administrator against tlie defendant, for money had and received (c) Popham V. Bathurst, in Cliaiiccry, 5G2, .071 ; Foster v. Green, 7 II. k N. 5 Nov. 174S, Anih. 68, RSI ; J''' I/rtllrfrs Entnte, 13 Oh. D. 696, id" f^C'C Taylor \. I'luvur. a M. & S. ^'^'v Jcsscl, M.K. ; see also ^;os<, p. 468. MILLER V. RACE. 4o;3 to his use. The defendant was nurse to the intestate during his sickness ; and being alone, conveyed away the money. And Lord Macclesfield held that the action lay. Now, this must be esteemed a finding at least. Apply this to a case of a bank-note. An action may lie against the finder, it is true ; (and it is not at all denied) ; but not after it has been paid away in currency. And this point has been determined even in the infancy of bank- notes ; for 1 Salk. 126, ]\I. 10 W. 3, at nisi 2>riiis, is in point. And Lord Holt there says, that it is " by reason of the course of trade ; which creates a property in the assignee or bearer." (And " the bearer " is a more proper expression than " assignee.") Here an innkeeper took it, ho7id fide, in his business, from a person who made the appearance of a gentleman. Here is no pretence or suspicion of collusion with the robber : for this matter was strictly inquired and examined into at the trial ; and is so stated in the case, " that he took it for a full and valuable » consideration, in the usual course of business." Indeed, if there had been any collusion, or an}' circumstances of unfair dealing, the case had been much otherwise. If it had been a note for 1,000/. it might have been suspicious : but this was a small note for 21/. 10s. only : and money given in exchange for it. Another case cited was a loose note in 1 Ld. Eaym. 738, ruled by Lord Holt at Guildhall, in 1698 ; which proves nothing for the defendant's side of the question : but it is exactly agreeable to what is laid down by Lord Holt in the case I have just men- tioned. The action did not lie against the assignee of the bank- bill ; because he had it for valuable consideration. In that case he had it from the person who found it ; but the action did not lie against him, because he took it in the course of currency : and therefore it could not be followed into his hands. It never shall be followed into the hands of a person who hand fide took it in the course of currency, and in the way of his business. The case of Ford v. Hopkins was also cited : which was in Hil. 12 W. 3, coram Holt, C.J., at nisi pi ins, at Guildhall; and was an action of trover for million-lottery tickets. But this must be a very incorrect report of that case : it is impossible that it can be a true representation of what Lord Holt said. It represents him as speaking of bank-notes, exchequer-notes, and million-lottery tickets, as like to each other. Now, no two things 454 MILLER V. RACE. (Judgment.) can be more unlike to each other than a lottery- ticket and a bank-note. Lotter}^- tickets are identical and specific: specific actions lie for them. They may prove extremely unequal in value : one may be a prize ; another a blank. Land is not more specific than lottery-tickets are. It is there said, " that the delivery of the plaintifl''s tickets to the defendant, as that case was, was no change of property." And most clearly it was no change of the property : so far the case is right. But it is here urged as a proof " that the true owner may follow a stolen bank- note into whose hands soever it shall come." Now, Ihe whole of that case turns upon the throwing in bank-notes, as being like to lottery-tickets. But Lord Holt could never say, "that an action would lie against the person who, for a valuable consideration, had received a bank-note which had been stolen or lost, and hand fide paid to him; " even though the action was brought by the true owner ; lecause he had determined otherwise but two years before ; and because bank-notes are not like lottery-tickets, but money. The person who took down this case certainly mis- understood Lord Holt, or mistook his reasons. For this reason- ing would prove (if it was true, as the reporter represents it), that if a man paid to a goldsmith 500Z. in bank-notes, the gold- smith could never pay them away. A bank-note is constantly and universally, both at home and abroad, treated as money, as cash ; and paid and received as cash ; and it is necessary, for the purposes of commerce, that their currency should be established and secured. There was a case in the Court of Chancery, (e) on some of Mr. Child's notes, payable to the person to whom they were given, or bearer. The notes had been lost or destroyed many years. Mr. Child was ready to pay them to the widow and administratrix of the person to whom they were made payable, upon her giving bond, with two responsible sureties (as is the custom in such cases), to indemnify him against the bearer, if the notes should ever be demanded. The administratrix brought a bill, which was dis- missed, because she either could not, or would not, give the security required. No dispute ought to be made with the bearer {e) Walmdey v. Chilil, H Dec, ]71'.», i'. TJ.'), s. 87 ; 45 k 46 Vict. c. 61, s. 70. 1 Vcs. Sen. 341. See 17 & 18 Vi.t. MILLEIt V. RACE. 455 of a cash note ; in regard to commerce, and for the sake of the credit of these notes ; though it may be both reasonable and customary to stay the payment, till iiKjuirycan be made whether the bearer of the note came l)y it fairly or not. Lord Mansfield declared that the court were all of the same opinion for the plaintiff; and that Mr. Justice Wilmot concurred, Eule — tliat the poatea be delivered to the plaintiff. The general rule ot the law ot England is, that no man (n-neral rule ^ . . . ''i /. , as to titlf to can acquu'e a title to a cliattei personal ironi any one who eliattels pii- lias himself no title to it, except only by sale in market- ^'"^^• overt; Peer v. IIiDnplireii, '1 A. & E. 495; see Sale of Goods Act, 1893, ss. '21, 22. The case of Miller v. llace, however, established an Exception in exception in the case of negotiable instruments, the pro- ,^j,^g instru- pevty in which will pass, like that in coin, along with the ments. possession, Avhen they have been put into that state in which, according to the usage and custom of trade, they are transferred from one man to another by deliveiy. This was again determined in (rrant v. Vaufihan, 3 Burr. 1516, in the case of a draft by a merchant on bis banker ; and in Gorgicr v. Mieville, 3 B. & C. 45, in the case of a bond, by which the King of Prussia declared himself and his suc- cessors bound to every person who should for the time being he the holder of the bond, as it was proved that " bonds of this description were sold in the market, and ]iassed from hand to hand daily, like exchequer bills, at a variable price." In A.-G. V. Bouiceits, 4 M. & W. 171, the forms of several foreign securities accustoaiably transferable like cash in this country will be found. See, as to bills of lading, Bills of Lickbarrow v. Mason, post, p. 674; as to dock warrants, ' °' Zicinger v. Samuda, 7 Taunt. 265, Lneas v. Dorrein, Id. warrants. 278, Johnson v. Credit Lijonnais, 3 C. P. D. 32 ; as to a Promissory promissory note with coupons, Maclae v. Sutherland, 3 E. "o^es. & B. 1 ; as to exchequer bills, Brandao v. Barnett, 1 M. & tniJ^'^"*''' Gr. 909, 6 Id. 630, 12 CI. & F. 787 ; as to iron scrip notes, i,.on g^i^ Dixon V. Bodily 3 Macq. 1 ; as to iron warrants, Merchant notes. Bank v. Phoenix Co., 5 Ch. IJ. 205 {post, p. 542) ; as to post- I™'i warrants, office orders, Fine Art Soc. v. Union Bank, 17 Q. B. D. 705. ^iS;"'^'"' A negotiable instrument being clearly transferable by any 456 MILLER V. EACE. What are negotiable instruments. India bonds. King of Prus- sia's bond. Rule b}' which negotiability determined. person holding it, so as by delivery thereof to give a good title " to any person honestly acquiring it," (per Abbott, C.J., 3 B. & C. 47), the next question is, what instruments may with propriety be termed negotiable. And to this it may be answered, that, whenever an instrument is such that the legal right to the property secured thereb}' passes from one man to another by the delivery thereof, it is, pro- perly speaking, a negotiable instrument, and the title to it will vest in any person taking it honCi fide, and for value, whatever may be the defects in the title of the person trans- ferring it to him. An instrument is called negotiable when the legal right to the property secured by it passes by its delivery, because, although an instrument may be saleable in the market, and treated in many respects like cash, 3"et, if by a transfer of it nothing pass but a right to sue on it in the name of the transferor or original party to it, such an instrument is not properly speaking negotiable. Thus in Glynn v. Bakci', 13 East, 509, India bonds were held not to be negotiable instruments (there being then no act equivalent to 51 G. 3, c. 64, s. 4, which afterwards made them negotiable). In that case the defendant lodged his India bonds with a banker, who improperly sold them, and on his demand delivered to him bonds of the plaintiff' to the same amount, and payable to the same obligee ; the defen- dant, not knowing that these[,bonds were not his own, sold them, and received the proceeds ; it was held that the plaintiff might recover the amount from him in an action for money had and received ; see Williamson v. Thompson, 16 Ves. 443. In Gorgier v. Mieville, 3 B. & C. 45, this case was cited as an authority against the negotiability of the King of Prussia's bond ; but Abbott, C.J., held that the case was distinguishable from Glynn v. Baker, saying: " There it did not appear that India bonds were negotiable, diwdi no other 'person could have sued on them hut the obligee. Here, on the contrary, the bond is paijahle to the hearer, and it was i"»roved at the trial that bonds of this description wei'e negotiated like exchequer bills." It may therefore be laid down as a safe rule that, where an instrument is by the custom of trade transferable in this country, like cash, b,y delivery, and is also capable of being sued ujxjn by the person holding \i pro tempore, there it is entitled to the name of a negotiable instrument, and the property in it passes to a hotid fide transferee for value, though the traiislcr iiiny not have taken place in market- MILLER V. RACE. 457 overt. But that if either of the above requisites be want- ing, i.e., if it be either not accustomably transferable, or, though it be accustomabl}' transferable, j^et, if its nature be such as to render it incapable of being put in suit by the party holding it pro toiipore, it is not a ncgotiahle instru- ment, nor (apart from the question of estoppel) will delivery of it pass the property of it to a vendee, however bond fide, if the transferor himself have not a good title to it, and the transfer be made out of market-overt. This rule was cited with approval in Croncli v. Credit Fonder, L. R. 8 Q. B. 374, 384 ; see also Goodwin v. lloharts. 1 App. Cas. 476. To illustrate these propositions, bills and notes payable Bills and to bearer, or payable to order and indorsed in blank, are "bje^"^^ beyond all doubt negotiable instruments in the full sense of those words ; Solomons v. Bank of England, 13 East, 135 ; Grant v. Vaughan, 3 Burr. 1416 ; Collins v. Martin, 3 B. & P. 649 ; Peacock v. Rhodes, 2 Dougl. 636 ; Wookey v. Pole, 4 B. & Aid. 1 ; Theidcman)t v. Goldsckmidt, 1 De G. F, & J. 4 ; for tfiey are both accustomably transferable like cash, and are also capable of being sued on by the holder ^)?"o tempore. But if such a bill be specially indorsed, its Effect of negotiability, in the full sense of the word, is at an end, for i^^^o^i^^ement. it becomes thereby incapable of being sued upon by any one except the special indorsee, until indorsed away b}' him ; Sigournei/ v. Lloyd, 8 B. & C. 622, 5 Bing. 525 ; Archer v. Bank of England, 2 Dougl. 639 ; Treuttel v. Barandon, 8 'J'aunt." 100. The Bills of Exchange Act, 1882, s. 31 (4), does not make a note, payable to order, transferred without indorsement, a negotiable instrument ; Good v. Walker, 61 L. J. Q. B. 736. The last cited cases deal with what are called restrictive Restrictive indorsements, and the Bills of Exchange Act, 1882, pro- "^'^^^^'^ ^^' vides that " an indorsement is restrictive which prohibits the further negotiation of the bill, or which expresses that it is a mere authority to deal with the bill as thereby directed, and not a transfer of the ownership thereof" (s. 35). The custom of " crossing " cheques for the purpose of dossed making them payable only through a banker, was recognised in the Bills of Exchange Act, 1882 (ss. 76—82), which repealed the previous acts upon the subject. Before these acts it was held that a cheque Avas negotiable though " crossed," so that a bond fide holder for value, though not a banker, could make a good title to a crossed cheque ; Bellamy v. Marjoribanks, 7 Exch. 389 ; Carlon v. Ireland, 458 MILLER V. RACE. "Words prohibiting transfer. "Not nego- tiable." Statutory protection to bankers in respect of cheques. 16 & 17 Vict, c. 59, s. 19. 45 & 46 Vict, c. 61, ss. 60, 82. U.sagc caiiiiot make instni- 5 E. & B. 765. The 19 eV 20 Vict. c. 25, and 21 & 22 Vict. c. 79, (lid not alter the law on this point ; Sniitli v. U>iiu)i Bank, 1 Q. B. D. 31 ; see hIbo MaWdessen v. London and County Bank, 5 C. P. I). 7, decided upon 39 & 40 Vict, c. 81 ; nor, it seems, does the Act of 1882 ; see National Bank v. Silke, (1891) 1 Q,. B. 435. The Bills of Exchange Act, 1882, s. 8, provides that a bill is not negotiable which " contains words prohibiting transfer or indicating an intention that it should not be transferable." In National Bank \. Silke, supra, Lindlev, L.J., doubted whether s. 8 applies to cheques at all ; and Lindley and Fry, L.JJ., both thought that a bill payable to order or bearer cannot be made not negotiable ; and it was held that, at any I'ate, to make it so, the words prohibiting transfer must be clear and unambiguous ; see Meyer v. Decroix, (1891) A. C. 520, a case of a bill of exchange. By s. 81, a person who takes a cheque which is " crossed " and bears the words " not negotiable," does not get, and cannot give, a better title than the person from whom he took it had ; see National Bank v. Silke, supra . For the protection of bankers a special negotiability, so to speak, has been given by statute to cheques when dealt with by them. By 16 & 17 Vict. c. 59, s. 19, a banker is authorised to pay a draft or order drawn upon him payable to order on demand which purports to be indorsed b}' the payee, and need not prove that that or any subsequent indorsement Avas made by or with the authority of the payee named by the drawer or by any indorser. This section protects only the banker ; Ofiden v. Benas, L. R. 9 C. P. 513; Halifax Union v. Wheehrririht, L. E. 10 Ex. 191 ; and, though still unrepealed, is reproduced by the Bills of Exchange Act, 1882, s. 60. By s. 82 of the latter Act, a banker, who "in good faith and without negligence receives payment for a customer of a cheque crossed generally or specially to himself," does not incur any liability to the true owner of the cheque " by reason only of having received such payment," if the customer has no title or a defective titl(> to the clKMpie ; see MattJiiessen v. London and County Bank, 5 C. P. D. 7, decided on the earlier Act, 39 & 40 Vict. c. 81 ; and Bissell v. Fox, 51 L. T. 6(53, 53 Id. 193; Kli'nnmrt v. ('(inijitoir Nati. 157; Matheu-H v. ]Villianis, 63 L. J. (,). Ji. 494. In (ilynn v. Baker, 13 East, 509, the court api)ears to have thought that, even bad the jury expressly found the MILLER v. RACE. 459 India bond to be ne£[otiable, and to pass accustomablv by "lents, on ®, ' . '■ , . /. "i face of winch dolivory, it would not Ijave been so in contemplation ot Jaw. the iij;ht to " If it be meant," said Lord Ellenboronfjb, " to liken tbis sue is^iimitcd, Tr-77 ^ T) 1 • negotiable, to tlie case of bankers notes, m Mtllcr v. liace, as having acquired in fact a negotiable quality, and being received as cash, or to ordnance debentures, notes, bills, and other securities of the same description, which are circulated daily in the money market, the fact of such negotiability should be stated. But supi)()siug it were so stated, how could a riglit of action be made to pass on these securities by such a practice to the holder of them, where by law no such right passes ? There must always be that impediment existing to the legal negotiability of such instruments which distinguishes them from bills of exchange, and securities of that nature, in which the Icual interest passes, under the law merchant, by indorsement and delivery to another." It is submitted, therefore, that if the right of suing on an instrument should not appear i(2)on tJie face of it to be extended beyond one particular individual, no usage of trade, however extensive, would be allowed by the courts (at least in tlie case of an English instrument) to confer upon it the character and incidents of negotial)ility. This appears to have been accepted as a correct state- ment of the law in Partriihje v. Ba)(k ut if Renteria v. Rnding be taken only to show that the delivery of the goods to the defendants was a sufficient con- sideration to supixnt a [jromise by them to pay the freight, and tliat su(;h a promise might be implied from their know- ledge that tli(! goods wer(! subjcsct to that charge, the case is distinguishahh;, and is similar to tliat of Williams v. Leper, MILLER V. RACE. 461 3 Burr. 1886, where a broker being about to sell the goods of A. for the benefit of his creditors, A.'s landlord came to distrain them ; upon which the broker promised to pay the rent, if the landlord would permit him to retain and sell the goods ; and the consideration was held sufficient, and the promise binding. In Williams v. Leper, there- fore, the landlord's I'elinquishnient of his lien on the goods for rent was sufficient consideration to support a promise by a party not the owner of the goods, who obtained posses- sion of them by the landlord's relinquishment of his lien, to pay the charge upon them for rent : and j)ari ratione, in Benteria v. Kiidiiig, the master's relinquishment of his lien on the goods for freight was sufficient consideration to sup- port a promise by the defendants, who obtained possession of the goods by the master's relinquishment of his lien, to pay the cliarge upon them for freight ; and tlie passage of his book cited by Lord Tenterden shows that such a promise may be implied ; and though Scaife v. Tohin, 3 B. & Ad. ^23 (which, however, is subsequent to Benteria v. Rudincj), decides that a person who is not the owner of goods does not by the mere receipt of them, with the know- ledge that they are subject to a charge, bind himself to pay it; yet, it is there laid down by Lord Tenterden, that if Effect of re- such a person receive the goods in pursuance of a bill of p'^'Pt of goods ^ . ^ *• 111 pursuance lading making the payment of such charge a condition of a bill of precedent to the delivery of the goods, or if he have notice ^ "o' from the master that if he take the goods he must take them subject to the charge, he will be liable. Now, in Rente ria v. lludiiifi, the defendants claimed to re- ceive the goods b}' virtue of the bill of lading, which made payment of freight a condition precedent to the delivery ; and though they might not be, i)roperly speaking, indorsees of the bill, still as they exhibited it, and claimed to receive the goods in pursuance of it, they might fairly be taken to have assented to its terms, so that a promise to j^av the cliarge therein imposed might be implied ; see the note to Liekharroiv v. Mdscni, post. Although an instrument may contain nothing on the face Instrument of it inconsistent with the character of neRotiabilitv, still if '""st^f ^ccus- . - n ^ 1 ■ ^■ tomabl)' trans- it be not accustomably transierable m this country in the ferable in this same manner as cash, it will not be looked upon as a nego- '^°""*'y ^^^^ liable instrument. Thus in Lang v. Smi/tJt, 7 Bing. 284, a question arose whether instruments called honlereaii.v and coupons, which purported to entitle the bearer to portions of 462 MILLER V. RACE. the public debt of the kingdom of Naples, were negotiable instruments ; and the jury having found that they did not usually pass in England from hand to hand like money, that finding was held conclusive to show that they were not negotiable instruments. Whether it is Whether an instrument which has never been solemnly sotiaiisieiable peco^nised by the law as negotiable be accustomably trans- a question tor , . . the jury. ferable by deliver}', or not, is a question which must in each case be left to the determination of a jury. It was submitted to the jury in Lang v. Smyth, supra, and held to have been rightly submitted. Foreign honds Bonds of foreign governments, or companies, or scrip scrip. promising to give bonds upon payment of all instalments, which are by the custom of bankers, money-dealers, and stockbrokers, transferable in this country as negotiable in- struments by delivery, are negotiable instruments in this country to which a hona fide holder for value obtains a good title independent of the title of the person from wliom he took ; Gorgier v. Mieville, 3 B. & C. 45 ; Syi)io)is v. Midkoii, 30 W. K. 875; A.-G. v. Bouwens, 4 M. &'aV. 171 ; Crouch V. Credit Foncier, L. R. 8 Q. B. 374; Goodwin v. Eoharts, 1 App. Cas. 476 ; Rumball v. Metropolitan Bank, 2 Q. B. D. 194 ; London J. S. Bank v. Simmons, (1892) A. C. 201 ; London J. S. Bank v. Bentinck, (1893) 2 Ch. 120. It is immaterial that they are secured by a mortgage of property to trustees ; Vcnahles v. Barings, (1892) 3 Ch. 527. It must be shown that such instruments are negotiable in this country, and it is not sufficient to show that by the law or custom of the foreign country they are negotiable ; Picker V. London d County Ban!;, 18 Q. B. D. 515 ; " otherwise, if it were proved that cowries are part of the currency' of Africa, they must be treated as money in this country, though there were no custom here to treat them as money;" Id., per Fry, L.J. Saahif:, thiit a It seems to have been thought in Laiig v. Smytli, sujn-a, foreign iiistru- ^| ^^ :^^ question were to arise respecting the negotiability meiil IS not ^ i o o j iiegotiahh; of a foreign instrument, and it were shown not to be ii'e''otT"blT negotiable in the country wlicre it was made, the fact of its wliere niM.le. jiccustomably pnssiiig like cnsh in this country would not make it negotiable. " These," said TindMl, CJ., " are '^not English instruments, recognised by tbe law of England, but NeMjJolitan securities l)r()Ught to the notice of the court for tlie first tinu!, and as judges we are not allowed to form an (>l)iiii(Mi nil Ihciii unless sujtplicd with evidence as to llie law MILLEK t\ KACE. 463 of the country whence they come. Judges have only taken upon themselves to decide the nature of instruments recog- nised hy the law of this country, as hills of exchange, which l^ass current hy the law merchant, dividend warrants, or exchequer hills, the transfer of which is founded on statutes, which a judge in an English court is hound to know. It has been urged that in Gorgier v. MlevUle, the case of the Prussian bonds, no evidence was given of the foreign law. But evidence was given, that, by the usage of merchants in this country, those bonds passed from hand to hand, which usage could have scarcely existed unless they were negotiable in Prussia, so that evidence as to the law of Prussia was rendered unnecessar3\ And the question is not so much what is the usage in the country whence the instrument comes, as in the country where it has passed." The rule to be collected from this seems to be that a foreign instrument is not negotiable here, unless negotiable where it was made ; but that evidence that it is accustomably transferable from hand to hand in this country is i)rima fade evidence that it also is so abroad. " If it were necessary to say what would be prima facie evidence of the negotiability of an instrument in this or in a foreign country, I should be disposed to say that evidence that an instrument is by the custom of trade negotiable here would be strong evidence that it is negotiable in the country of its issue ; " 2)er Lord Esher, Picker v. London cO Cotuitt/ Bank, 18 Q. B. D. 515, 518. It has been decided by high authority (though the decision Scmhk, tluit has, it will be seen, been shaken) that an English instru- ^"„!'"^''t''^' ]^' ment, though it contain nothing on the face of it inconsistent "ot be negu- with the character of negotiability, and though it be found by the'^iu'iicieiit by the jury to be at the present day accustomably transfer- iu-\\' niercluait able like cash, still cannot, either by usage or by express "^ > s a u e. stipulation of the parties, be made to have the quality of negotlahility : that this quality it can have only by the ancient law merchant as distinguished from a mere custom of trade, as in the case of bills of exchange, or by statute, as in the case of East India bonds. Such seems to be the effect of the judgmiisnt in Crouch v. Ciuuch v. Credit Fancier, L. K. 8 Q. B. 374. There a company ^''■''^^^^°'''^"- issued an instrument under their seal, called on the face of it a debenture, whereby the company promised, subject to conditions which deprived it of the character of a promissory 464 MILLER V. RACE. Crouch V. note, to pay the bearer lOOZ. and interest. This was issued to one M., from whom it was stolen, and it was afterwards assigned to the plaintiff, who received it bond fide for value without notice of the theft. The company, on M.'s indem- nity, declined to pa}^ the debenture, whereupon the plaintiff brought this action. At the trial it was tacitly admitted that as a fact similar documents are in practice treated as negotiable, and a verdict was found for the plaintiff; but a rule obtained subsequent!}' to enter the verdict for the defendants was made absolute. The court were sedulous to confine their judgment to the case before them of an English instrument made by an English company in England. They held that the form of the instrument showed that the company contracted with M. to pay the bearer ; but, while admitting that the com- pany were competent to make any stipulation with M. that would affect only their rights and his, the court said : " There is no decision or authority that it is competent to a party to create by his own act a transferable right of action on a contract. It is enough to refer to Dixon v. Bovill, 3 Macq. 1, and Thompson v. Dominy, 14 M. it W. 403, as authorities that he cannot, irrespective of custom, so create it. We have only further to consider whether the custom or practice of trade to treat such instruments as negotiable makes any difference. We must take it as admitted (whether truly or not, we know not) that such a custom has prevailed of late years ; but as the instruments themselves are only of recent introduction, it can be no part of the law merchant. Incidents which the parties are competent by express stipulation to introduce into their contracts may be annexed by custom, however recent, provided that it be general, on the ground that they are tacitly incorporated in the contract. If the wording of an instrument is such as to exclude this tacit incorporation, no usage can annex the incident. But where the incident is of such a nature that the parties are not themselves competent to introduce it by express stipu- lation, no such incident can be annexed by the tacit stipulation arising from usage. It may be so annexed by the law merchant, which forms part of the law, and of which the courts take notice. Nor if the ancient law annexes the incident can any modern usage take it away." After citing Edie V. East India Co., 2 Jiurr. TiK), and l^nrtrid/ie v. Bank of lltKjUnid, \) Q. B. 390, for the above propositions, the coiiiL cDUckided : " We have alread}' intimated our MILLER C. RACE. 465 opinion that it is beyond the competenc}^ of the parties to a contract by express words to confer on the assignee of that contract a right to sue in his own name. And we also think it beyond the competency of the parties b}^ express stipuhition to deprive the assignee of either the contract or the property represented by it of his right to take back his property fr(.)m any one to whom a thief may have transferred it even though that transferee took it bond fide and for vahie. As these stipulations, if express, would have been ineft'ectual, the tacit stipulations implied from custom must be equally ineffectual." See also McLj/)icJi v. Ekins, 13 East, 515 note; Daly v. Thompson, 10 M. & AV. 309, 319, j^cr Parke, B. In Goodwin v. Ilohnvts, L. 11. 10 Ex. 356, however, Cockburn, C.J., in delivering the judgment of the Exch. Cham., said : " We think the judgment in Crouch v. Credit Foncier may well be supported on the ground that in that case there was substantially no proof whatever of general usage. We cannot concur in thinking that, if proof of general usage had been established, it would have been a sufficient ground for refusing to give effect to it tliat it did not form part of what is called ' the ancient law merchant.' " With regard to the lack of proof of general usage in Crouch V. Credit Foncier, it may be observed that the usage, though not joroved, was there taken as admitted, which seems to amount to the same thing. Further, as the Q. B. there carefully confined their judgment to the case before them, which was one of an English instrument made by an English company in England, whereas the instrument in Goodwin V. Roharts was scrip of a foreign government, the above remarks of Cockburn, C.J., might be treated as obiter dicta of great weight rather than as an actual decision with regard to English instruments. In Goodwin v. Ilobarts, in the H. L., 1 App. Cas. 476, no opinion in terms was expressed with regard to the correctness in this respect of the judg- ment in Crouch v. Credit Foncier, though Lord Selborne was careful to confine his judgment to the case of securities created by a foreign government. The efiect of the decisions in Goodwin v. Roharts in the H. L., and Rumhall v. Aletrojwlitan Bank, 2 Q. B. D. 194, seems to be that, on the ground of estopi^el (a subject treated at length in the notes to the Duchess of Kingston's Case, post, vol. ii.), a person who deposits with an agent a security on the face of it payable to bearer is liable to a bond fide S.L.C. VOL. I. 30 How far quali- fied by Good- vitiY.Robarts. Negotiability by estoppel. Goodwin v. Robarts. 166 M[LLER V. RACE. Goodici/i V. Robarts. Rumhall V. Melro'politiin Bank. Estoppel. Clio.se in action now ii>j.si.t,'iiabltj at law, liy 3t)&37 Vii-t. c. Gti, s. 25, .sub.s. 6. holder for value, in case the agent fraudulently puts it in circulation, whether it be negotiable or not. Lord Selborne, however, in France v. Clark, 26 Ch. I). 257, 264, treated the evidence of mercantile nsage as essential to the decision in Goodirin v. Boharts ; and in Fine Art Soc. v. U)iion Bank, 17 Q. B. D. 705, 710, Lord Esher expressed the opinion that the rule as stated by the H. L. must be confined " to the facts of the special case, which contained a statement that the form of instrument then in question had been treated as a negotiable instrument b}' the mercantile world and by nil parties dealing with it." In Goodwin v. Boharts, the plaintiff claimed damages for the conversion of the scrip of loans to the Russian and Hungarian Governments. He had handed the scrip to his broker, to be held subject to his directions, but the broker had fraudulently pledged it with the defendants, who took it bond fide and for value. By their scrip the governments promised to give to tJtc hearer bonds in resjiect of the loans. Lords Cairns and Hatherley held that the plaintiff was estopped from denying the defendants' title, whether the scrip was or was not negotiable : but they further held, on the authority of Gorgicr v. Mieville, 3 B. & C. 45, that it w^as negotiable. Lord Selborne concurring upon this latter ground. In Bumhall v. Metropolitan Bank, 2 Q. B. D. 194, where the securities in question were scrip certificates of an English company, Crouch v. Credit Fonder seems to be treated as overruled by the judgment of the Exch. Cham, in Goodwin v. Boharts, though Bumhall v. Metropolitan Bank may be supported on the other ground of estoppel, on which the court also rely. See, upon the doctrine of estoppel, Crouch V. Credit Fonder, L. R. 8 Q. B. p. 385 ; Merchant Bank v. Phoenix Co., 5 Ch. D. 205 ; France v. Clark, 26 Id. 257; Fine Art Soc. v. Union Bank, 17 Q. B. 1). 705; Colonial Bank v. Cady, 38 Ch. D. 888, 15 App. Cas. 267 ; Bentinck v. London J. S. Bank, (1893) 2 Cli. 120. Here it may be observed that the common law rule by which a chose in action is not assignable at law so as to entitle the assignee to sue upon it in his own name was broken in upon by the Judicature Act, 1873, in the case of " any absolute assiginnent by writing under the hand of the assignor, not puiporting to be by way of charge only, of any debt, or otlier legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or other MILLER V. RACE. 467 person from whom the assignor would have been entitled to receive or claim such debt or chose in action." Under this enactment, however, a transferee acquires no better title than his transferor had. A point of some importance has been raised, but not Covenant not decided, as to the negotiability of instruments in form pro- (Wj^-^as to missory notes, but which being under the seal of a corpora- eil'ectofS & 4 tion are 'prima facie covenants, and therefore not negotiable. \^x^^\^^ox\ °^ In Crouch w. Credit Fancier, L. K. 8 Q. B. 374, 382, the notes of cor- court said : " It is quite clear that a covenant to pay money under'stal. is not negotiable by the custom of merchants. . . . The negotiability of promissory notes depends in j)art at least upon 3 & 4 Anne, c. 9 ; and it seems to have been the opinion of Wood, L.J., in Be General Estates Co., 3 Ch. 762, and of Malins, Y.-C, in Re Imperial Land Co., 11 Eq. 490, that, inasmuch as that Act enacts that promissory notes in writing 'made and signed by an}^ person or persons, body politic or cgrporate, or by the servant or agent of any corpora- tion, banker, goldsmith, merchant, or trader, who is usually intrusted by him, or tliem, to sign such promissory notes for him, her, or them, whereb}' such person or persons, hodij politic or corporate, his, her, or their servant or agent, doth promise to pay any sum of money, shall be indorsable as bills of exchange are by the custom of merchants,' it follows that a corporation fixing its seal to a written jn'omise to pay must be considered as signing the promise, not as covenant- ing under seal to fulfil it ; and so, that the statute by impli- cation enacts that what would at common law be their covenant to pay is their promise. But although intimating their opinion neither of the learned persons refej-red to gave any decision on the point, as it was not necessary for the purpose of the cases before them." The court for like reasons declined to decide the question, but pointed out that in Ghjn v. Baker, 13 East, 509, Le Blanc, J., took a view opposed to that of Wood, L.J., and Malins, V.-C, above cited. A railway company cannot, and it seems that no corpora- Railway coiu- tiou, except a trading corporation, or one having special I^''-"-^' cannot OX uccGpt bills of powers for that purpose by statute or by its articles of exchange. incorporation, can accept bills of exchange or make pro- missory notes; Batenian v. Mid-Wales B. Co., L. R. 1 C. P. 499; Be General Estates Co., 3 Ch. 758; see Bills of Exchange Act, 1882, s. 22. One class of cases in which the negotiability of an instru- Effect of ment becomes important, is where a question arises whether, '"-'gotia^'lity 30 2 468 MILLER V. RACE. of instruments on probate dutj'. To gain title to negotiable iustniment, transferee must take bond fide and for value. Title to money received hoaa fide for value. Gross negli- gence formerly held cogent evidence of ■mala fides. upon the holder's death, it be subject to probate duty. Now, as the liability to probate duty depends on the locality of the assets at the testator's death {A.-G. v. Pratt, L. R. 9 Ex. 140), it has been held that French rentes, American stock, and debts due from a foreigner, being transferable abroad only, must be considered as locally situate abroad, and, consequently, as exempt from probate duty ; but that foreign bills and bonds, given by the Russian, Dutch, and Prussian governments, accustomably saleable in the market here, are chattels in this country liable to probate duty, although the dividends upon the Dutch bonds were payable solely at Amsterdam ; A.-G. v. Bouwens, 4 M. & W. 171 ; A.-G. V. HojJe, 1 C. M. & R. 530, 2 CI. & F. 84 ; 8 Bligh, 44 ; A.-G. V. Dimoncl, 1 C. & J. 356; Pearse v. Pearse, 9 Sim. 430. It has thus been endeavoured to deduce some rules whereby to ascertain whether a particular instrument is or is not negotiable. If it is negotiable, it is, as has been already stated, exempted from the ordinary rule respecting chattels personal, and property in it may be transferred, by a man who has none in it himself, to a person taking it bond fide and for value ; Grant v. VangJian, 3 Burr. 1516 ; Peacock v. Rhodes, 2 Dougl. 633 ; Collins v. Martin, 1 B. & P. 648 ; Laivson v. Weston, 4 Esp. 56 ; Wookey v. Pole, 4 B. & Aid. 1 ; Snow V. Saddler, 3 Bing. 610 ; London J. S. Bank v. Simmons, (1892) A. C. 201. But a party who has not taken it bond fide, and for value, will not be permitted to retain it; for it stands on the same footing as money, except that it is much more easil}^ identified, and money itself could not be retained under those circumstances. This was decided in Clarke v. Shee, Cowp. 197, where the plaintiff's clerk received notes and moneys for his master, and laid them out with the defendant in illegal insurances of lottery tickets ; and the master, being able to prove their identit}', was held entitled to recover them. " When money or notes," said Lord Mansfield, " are paid bond fide, and upon a valuable consideration, they never shall be brought back by the true owner ; but where they come mold fide into a person's hands, they are in tlie nature of specific property ; and if their identity can be traced and ascertained, the party has a right to recovei-." Such being the i)iiii(ii)Ie, tlie contest in each particular case has ever since been whether the circumstances under which the negotiable instrument jiassed to the party claiming MILLEK V. KACE. 4fi9 to hold it afford evidence of mala fides so as to bring the case within tlie hitter part of the rule hiid down, in Clarke v. Shce, by Lord Mansfiehl. Now, it was very early held that there might be, on the part of a person taking a negotiable instrument, negligence of such a description, and so gross, as would afford cogent evidence of mala fides ; in other words, as would satisfy any reasonable man that the i)arty guilty of it must have suspected that the dealing in which he was engaged was tainted with fraud ; see Soloiiu^is v. Bank of England , 13 East, 135. In Gill v. Cuhitt, 3 B. & C. 46G, the court went further Gill v. Cahitt. than tliis, and approved of the direction given by Abbott, C.J., to the jury, that they were to find a verdict for the defendant, if they thought that the plaintiff took the bill " under circumstances which oufiht to have excited the sus- picion of a prudent and careful man." This case was for some time relied on as an authority by persons who sought to invalidate the transfer of a bill on the ground of want of caution in taking it; and it was followed in Down v. Hallinn, 4 B. & C. 330 ; Snow v. Peacock, 3 Bing. 40G ; Beckwith v. CorraU, Id. 444; Strange v. Wigneij, 6 Id. 677; Easleij v, Crockford, 10 Id. 243 ; but the above rule was not accepted in Crook v. Jadis, 5 B. & Ad. 909, and Backhouse v. Harrison, Id. 1098 ; in these cases it w^as said that gross negligence must be show^i. Gill v. Cuhitt must now be considered as overruled. In Now over- Ooodman v. Harvey, 4 A. l'v: E. 870, the court laid down the rule that " gross negligence may be evidence of mala fides, There must be but is not the same thing," and that " wliere the bill has ^j^^^ passed to the plaintiff without any proof of had faith in him, there is no objection to his title." This decision was adhered to in Uther v. Rich, 10 A. il- E. 784, where it was held that mala fides in the holder of a negotiable instru- ment, if relied on, must be distinctly alleged, and that the •only proper mode of implicating him in an alleged fraud is to expressly aver that he had notice of it. In Bank e?' j^ro," the taker of the bill or note Accepiauoe must inquire whether the agent has authority to do so ; and ^' ^"''' if the agent have authoritv, his abuse of it does not affect a 472 millp:r v. j:ace. Pledge by agent with limited autlioritv. Bills of Exchange Act, 1882, s. 90. Efifeet of fraud on subsequent transferee. "What notice of fraud affects holder. "Whether in- strument negotiable before i^sue. Inchoate instruments. 44 k 45 Vict. C. 61, 88. 20, 21. bona Jidc liolder for value ; Bryant v. Banque du Peuple, (1893) A. C. 170 ; Bissell v. Fox, 51 L. T. GG'd, 53 Id. 193. It appears from London J. S. Bank v. Simmons, and Sheffield V. London J. S. Banlc, supra, that if an agent pledges negotiable instruments for an amount beyond the limits of his autliority, and the pledgee has notice of the limits of his authority, he is entitled to retain the securities as a pledge lor the authorised amount, but for no larger amount. By the Bills of Exchange Act, 1882, s. 90, it is provided that " a thing is deemed to be done in good faith within the meaning of that Act where it is in fact done honestly, whether it is done negligently or not." Evidence of fraud on the part of a previous holder raises a presumption that the plaintiU' is agent for that holder without value, and therefore casts on him the burthen of proving that he gave value ; Hall v. Featherstone , 3 H. & N. 284. It was doubted b}' Lord Blackburn, in Jones v. Gordon, 2 App. Cas. 616, 628, whether it shifts the onus ui)on him to show that he gave value bond fide, so that, although he gave value, he must give some affirmative evidence to show that he was doing it honestly ; but it has since been decided that it does ; Tatam v. Haslar, 23 Q. B. D. 345. Notice of fraud, given after delivery of a bill payable to order, and before formal indorsement, affects the indorsee ; Wlnstler v. Forster, 32 L. J. C. P. 161. Questions have arisen as to the negotiability of instru- ments stolen and fraudulently put into circulation either after an attempted cancellation or before issue by the alleged maker ; see Inr/Jiam v. Primrose, 7 C. B. N. S. 82 ; Ikixendale v. Bennett, 3 (^). B. I). 825 ; also as to the validity of documents purporting to be acceptances where th(> acceptor signs his name to an instrununit or paper, wlndly «)i" in ])art in blank, and the blank is lilled up con- triiry to his iiuthority ; see llogarth v. Latham, 3 i}. B. I). 643; L. ct- S. W. Bank v. Wentnorth, 5 Ex. ]). 96; (Jari'ard v. Leans, 10 Q. B. I). 30. But as the law on this subject is now fully deiilt with by the Bills of Exchange Act, 1882, passed since the date of these decisions, it is not (le(!iued necessary to discuss them, although they are of course still I'l' iiutlioi'ity as I'cgards negotiable se(;urities other than bills, ik.Ics, iiiid cluMpus, with which alone that Act dciils. MILLER ?'. RACE. 473 On the latter 2)oint the hiw is thus hiid down by Lord Selborne in France v. Clark, 26 Ch. D. 257, 262 : " The person who has signed a negotiable instrument in blank, or with blank spaces, is (on account of the negotiable charac- ter of that instrument) estopped by the law merchant from disputing any alteration made in the document, after it has left his hands, by filling up blanks (or otherwise in a way not ex facie fraudulent), as against a bond fide holder for value without notice ; but it has been repeatedly explained that this estoppel is in favour only of such a bond fide holder; and a man who, after taking it in blank, has him- self filled up the blanks in his own favour without the consent or knowledge of the person to be bound, has never been treated in English courts as entitled to the benefit of that doctrine. He must necessarily have had notice that the documents required to be other than they were when he received them, in order to pass any other or larger right or interest, as against the person whose name was subscribed to them, than the person from whom he received them might then actually and bond fide be entitled to transfer or to create ; and if he makes no inquiry he must at the most take that right (whatever it may happen to be) and nothing more. He cannot, by his own subsequent act, alter the legal character, or enlarge in his own favour the legal or equitable operation, of the instrument." The holder of a negotiable instrument may effectually IfoUler may indorse it to a third person without consideration, merely J^'";'^''*^^ ^^ ^ . " . . tliiid person for the puri)ose of enabling the latter to sue upon it on his, to eiiaiJe him the indorser's, behalf; Law v. Parnell, 7 C. B. N. S. 282; ^° '"''• Ancona v. Marks, 7 H. it N. 686; Klcinicort v. Cumptoir National, (1894) 2 Q. B. 157. An opinion was once entertained that the effect of the Eircotof24& Larceny iVct, 1861, s. 100, coupled with the decision in ""''tqq'^^' ^' ^^' Scattcrgood v. St/lrestcr, 15 (^). B. 506, was to revest in the true owner the property in a stolen negotiable instrument on the conviction of the tliief, even though it had j^assed into the hands of a bo)td fide indorsee for value. In Chichester v. 7////, 52 L. J. Q. B. 160, it was decided that the statute has not this effect. CARTER v. BOEHM. EASTER.— 1> GEO. 3. [REroKTED 3 Bur>r>. 1905.] Insurance on Fort Maiiborougli against foreign capture, effected by its Governor. The weakness of the fort, and the probability of its being taken by the French, and that the insured knew these facts, but had not communicated them, were offered to be proved as a defence to an action on the policy. It was also objected that the insurance was against i)ublic policy. The plaintiff proved that the office of Governor was mercantile, not military ; and that the fort was never calculated to resist Eiirojiean enemies. Held, that the jury were justified in finding for the plaintiff. The opinion of an insuiance broker as to the materiality of the facts not communicated was thought inadmissible as evidence («). What concealments vitiate a policy. This was an insurance cause, upon a policy underwritten by Mr. Charles Boelim, of interest, or no interest, iritJtout henejit of salvage Qi). The insurance was made by the plaintiff, for the benefit of his brother, Governor George Carter. It was tried before Lord Mansfield at Guildhall ; and a verdict was found for the plaintiff by a special jury of merchants. On Saturday, the 19th of April last, Mr. Recorder Eyre, on behalf of the defendant, moved for a new trial. His objection was, " that circumstances were not sufficiently disclosed." A rule was made to shew cause : and copies of letters and depositions were ordered to be left with Lord Mansfield. N.B. Four other cases depended upon this. The counsel for the plaintiff, viz., Mr. Morton, Mr. Dunning, and Mr. Wallace, showed cause on I'hursday, the first of this month. But first, Lord Mansfield reported the evidence. That it was an action (a) On this ])oint sec the notes. 11 Geo. 3, c. 48, ngiiinst war/cr policies ; (h) A policy containing tlie.se wimls ra.terson v. Poirdl, 9 Bing. 320 ; see the would now be illegal, in conscqueiifc of iiotts to (ioiIvkU v. Boldcro, post, vol. ii. CARTER V. BUEHM. 475 on a policy of insurance for one year, viz., from IGth October, 1759, to 16tli October, 17G0, for the benefit of the Governor of Fort Marlborough, George Carter, against the loss of Fort Marlborough, in the island of Sumatra, in the East Indies, by its being taken by a foreign enemy. The event happened : the fort was taken by Count d'Estaigne within the year. The first witness was Cawthorne, the policy-broker, who pro- duced the memorandum given by the Governor's brother, the plaintiff, to him : and the use made of these instructions was to show that the insurance was made " for the benefit of Governor Carter, and to insure him against the taking of the fort by a foreign enemy." Both sides had been long in Chancer}^ : and the Chancery evidence on both sides was read at the trial. It was objected, on behalf of the defendant, to be a fraud, by concealment of circumstances which ought to have been disclosed ; and particularly the weakness of the fort, and the probability of its being attacked by the French ; which concealment was offered to be proved by two letters. The first was a letter from the Governor to his brother lioger Carter, his trustee, the plaintiff in this cause : the second was from the Governor to the East India Company. The evidence in reply to this objection consisted of three depositions in Chancery, setting forth that the Governor had 20,000/. in effects, and only insured 10,000/. : and that he was guilty of no fault in defending the fort. The first of these depositions was Captain Try on' s : which proved that this was not a fort proper or designed to resist European enemies ; but only calculated for defence against the natives of the island of Sumatra ; and also that the Governor's office is not military, but only mercantile ; and that Fort Marlborough is only a subordinate factory to Fort St. George. There was no evidence to the contrar}'. And a verdict was found for the plaintiff, b}' a sj^ecial jury. After his lordship had made his rei^ort, the counsel for the plaintiff proceeded to show cause against a new trial. They argued that there was no such concealment of circum- stances (as the weakness of the fort, or the probability of the attack) as would amount to a fraud sufficient to vitiate this 476 CARTER V. BOEHM. contract ; all which circumstances were universally known to every merchant upon the Exchange of London, And all these circumstances, they said, were fully considered by a special jury of merchants, who are the proper judges of them. And Mr. Dunning laid it down as a rule — " That the insured is only obliged to discover facts ; not the ideas or speculations which he may entertain upon such facts." They said this insurance was, in reality, no more than a wager, " whether the French would think it their interest to attack this fort ; and if they should, whether they would be able to get a ship of war up the river or not." Sir Fletcher Norton and Mr. Eecorder Eyre argued, contra, for the defendant, the underwriter. They insisted, that the insurer has a right to know as much as the insured himself knows. They alleged, too, that the broker is the sole agent of the insured. These are general, universal principles, in all insurances. Then they proceeded to argue in support of the present objection. The broker had, they said, on being cross-examined, owned that he did not believe that the insurer wotdd have meddled with the insurance, if he had seen these tivo letters. All the cir- cumstances ought to be disclosed. This wager is not only " whether the fort shall be attacked ; " but " whether it shall be attacked and taken." Whatever really increases the risk ought to l)e disclosed. Then they entered into the particulars which had been here kept concealed. And they insisted strongly, that the plaintiflf ought to have discovered the weakness and absolute inde- fensibility of the fort. In this case, as against the insurer, he was obliged to make such discovery ; though he acted for the Governor. Indeed, a Governor ought not, in point of policy, to be permitted to insure at all : but if he is permitted to insure, or will insure, he ought to disclose all facts. It cannot be supposed tliMi tlic insurer would liave insured so low as 4/. per cent., if he had known of these letters. It is l)egging the question to say, " that a fort is not intended for defence against an enemy." The supposition is absuid and ridiculous. It must be presumed that it was intended for that ])ui'p()S{i; and the presumption was " tbut llie fori , tin; jxnvdei', tlu; guns, iVc, were in a good and CARTER V. BOEHM. 477 proper condition." If they were not (and it is agreed that in fact they were not, and that the Governor knew it), it ought to have been disclosed. But if he had disclosed this he could not have got the insurance. Therefore this was a fraudulent conceal- ment ; and the underwriter is not liable. It does not follow that, because he did not insure his whole property, therefore it is good for what he has judged proper to insure. He might have his reasons for insuring only a part, and not the whole. Cur. adv. vult. Lord Mansfield now delivered the resolution of the Court. This is a motion for a new trial. In support of it the counsel for the defendant contend, " that some circumstances in the knowledge of Governor Carter, not having been mentioned at the time the policy was underwrote, amount to a concealment, which ought, in law, to avoid the policy." The counsel for the plaintiff insist, " that the not mentioning these particulars does not amount to a concealment which ought, in law, to avoid the policy : either as a fraud, or as varying the contract." 1st. It may be proper to say something, in general, of conceal- ments which avoid a policy. 2ndly, To state particularly the case now under consideration. 3rdly. To examine whether the verdict which finds this policy good, although the particulars objected were not mentioned, is well founded. First. Insurance is a contract upon speculation. The special facts, upon which the contingent chance is to be computed, lie most commonly in the knowledge of the insured only : the under- writer trusts to his representation, and proceeds upon confidence that he does not keep back any circumstance in his knowledge, to mislead the underwriter into a belief that the circumstance does not exist, and to induce him to estimate the risk as if it did not exist. T]ie keeping back sudi circumstance is a fraud, and therefore the policy is void (c). Although the suppression should happen through mistake, without any fraudulent intention, yet still, the underwriter is deceived, and the policy is void : because the risk run is really difierent from the risk understood and intended to be run at the time of the agreement. The policy would equally be void, against the underwriter, if he concealed; (f) Fitzhcrhcrt v, Mather, 1 T. R. 12 478 CARTER V. BOEHM. as if he insured a ship on her voyage, which he privately knew to be arrived ((?) : and an action would lie to recover the premium. The governing principle is applicable to all contracts and dealings. Good faith forbids either party, by concealing what he privately knows, to draw the other into a bargain from his ignorance of that fact and his believing the contrary. But either party may be innocently silent as to grounds open to both to exercise their judgment upon. Aliud est celare; aliud, tacere : neque enim id est celare quicquid reticeas ; sed cum quod tu scias, id. ignorare emolumenti tui causa relis eos, quorum intersit id scire (e). This definition of concealment, restrained to the eificieni motives and precise subject of an}- contract, will generally hold to make it void, in favour of the party misled by his ignorance of the thing concealed. There are many matters, as to which the insured may be innocently silent; he need not mention what the underwriter knows — Scientia utrinquc x>ar jmres contrahentes facit. An underwriter cannot insist that the policy is void, because the insured did not tell him what he actually knew ; what way soever he came to the knowledge. The insured need not mention what the underwriter ought to know (/) ; what he takes upon himself the knowledge of ; or what he waives being informed of. The underwriter needs not be told what lessens the risk agreed and understood to be run by the express terms of the policy. He needs not to be told general topics of speculation : as for instance, tlie underwriter is hound to knoiv every cause which may occasion natural j^erils ; as the difficulty of the voyage — the kind of seasons — the prohahiUty ofligJttning, liurricanes, earthquakes, d-c. He is hound to know every cause ivhich may occasion political 2)erils ; from the ruptures of states, from war, and the various opera- tions of it. lie is hound to knon- the prohahiUty of safety, from the continnance or return of peace ', from tlie imhecility of the enemy, through the weakness of their councils, or their want of strength, dx. If an underwriter insures private ships of war, by sea and on shore, from ports to ports, and places to places, anywhere, he [d) See Jiradjord v. Hymondson, 7 (}. lance v. Dcwar, 1 Camp. 503 ; Stewart IJ, D. 45G. V. Bell, 5 B. & Aid. 238 ; Mackintosh (c) Cicero, de Ojfficiis, 1. 3, c. V>, 13 ; v. Marshall, 11 M. & W. 116 ; Bates v. see 54 L. T. 374 ; (1895) 2 Ch. 2W. UewUt, L. R. 2 Q. B. 595 ; Harrower (/) Sec 7^/^071 V. Zar/tHW, 8 Biiig. 198 ; v. Jlulchlnson, 5 Id. 584; Gandy v. Frierc v. Woodhimsc, Holt, N. 1'. 572; Adelaide Ins. Co., 6 Id. 746. Noble V. Kcnnoway, Dougl. 510 ; Val- CARTER r. BOEHM. 479 needs not be told tlie secret enterprises they are destined upon ; because be knows some expedition must be in view ; and from the nature of his contract, without being told, he waives the information. If he insm-es for three years, he needs not be told any circumstance to show it may be over in two : or if he insures a voyage, with liberty of deviation, he needs not be told what tends to show there will be no deviation. Men argue differently, from natural phenomena and political appearances : they have different capacities, different degrees of knowledge and different intelligence. But the means of information and judging are open to both : each professes to act from his own skill and sagacity ; and, therefore, neither needs to communicate to the other. The reason of the rule which obliges parties to disclose is to prevent fraud, and to encourage good faith. It is adapted to such facts as vary the nature of the contract : which one i^rivately hiows, knd the other is ignorant of, and has no reason to suspect. The question, therefore, must always be, " whether there was, under all the circumstances at the time the policy was underwritten, a fair representation ; or a concealment ; fraudu- lent, if designed ; or, though not designed, varying materially the object of the policy, and changing the risk understood to be run." This brings me, in the second place, to state the case now under consideration. The policy is against the loss of Fort Marlborough, from being destroyed by, taken by, or surrendered unto, any European enemy, between the 1st of October, 1759, and the 1st of October, 1760. It was underwritten on the 9th of May, 1760. The underwriter knew at the time that the policy was to indem- nify to that amount Roger Carter, the Governor of Fort Marl- borough, in case the event insured against should happen. The Governor's instructions for the insurance, bearing date at Fort Marlborough, the 2'2nd of September, 1759, were laid before the underwriter. Two actions upon this policy were tried before me in the year 1762. The defendants then knew of a letter written to the East India Company, which the Company offered to put into my hands ; but would not deliver to the parties, because it contained some matter which they did not think proper to be made public. 480 CARTER V. BOEHM. An objection occurred to me at the trial, " whether a poHcy, against the loss of Fort Marlborough, for the benefit of the Governor, was good ; " upon the principle which does not allow a sailor to insure his wages {g). But considering that this place, though called a fort, was really but a factory or settlement for trade ; and that he, though called a Governor, was really but a merchant : considering, too, that the law allows a captain of a ship to insure goods which he has on board, or his share in the ship, if he be a part owner : and the captain of a privateer, if he be a part owner, to insure his share : considering, too, that the objection did not lie upon any ground of justice, in the mouth of the underwriter, who knew him to be the Governor at the time he took the premium — and as, with regard to principles of public convenience, the case so seldom happens (I never saw one before), any danger from the example is little to be apprehended — I did not think myself warranted, upon that point, to nonsuit the plaintiff; especially, too, as the objection did not come from the Bar. Though this point was mentioned, it was not insisted upon at the last trial ; nor has it been seriously argued, upon this motion, as sufficient, alone, to vacate the policy : and if it had, we are all of opinion " that we were not warranted to say it is void upon this account." Upon the plaintiff's obtaining these two verdicts, the under- writers went into a court of equity ; where they have had an opportunity to sift everything to the bottom, to get every dis- covery from the Governor and his brother, and to examine any witnesses who were upon the spot. At last, after the fullest investigation of every kind, the present action came on to be tried at the sittings after last term. The plaintiff proved, without contradiction, that the place called Bencoolen, or Fort Marlborough, is a factory or settlement, but no military fort or fortress. That it was not established for a place of arms or defence against the attacks of an European enemy, liut merely for the purpose of trade and of defence against the natives. That the fort was only intended and built {(j) i.e. Because of its tendency to tliisrule of 17 & 18 Vict. c. 104, ss. 182, diniini.sh liis exertions for the safety of 183, now replaced by 57 & 58 Vict. the thing insured ; Webster -v. De Tastet, c GO, ss. 156, 157. The ?« aster's wages 7 T. U. 157 ; Wilson v. R. E. A. Co., 2 do not depend on the earning of freight ; Camj). G2C. Quare, as to the effect on Una-kins v. Twizell, 5 E. & B. 883. CARTER V. BOEHM. 481 with an intent to keep off the country blacks. That the only security against European ships of war consisted in the difficulty of the entrance and navigation of the river, for want of proper pilots. That the general state and condition of the said fort, and of the strength thereof, was in general well known by most persons conversant or acquainted with Indian affairs, or the state of the Company's factories or settlements ; and could not be kept secret or concealed from persons who should endeavour, by proper inquiry, to inform themselves. That there were no apprehensions or intelligence of any attack by the French, until they attacked Nattal in February, 1760. That on the 8th of February, 17G0, there was no suspicion of any design by the French. That the Governor then bought, from the witness, goods to the value of 4,000L, and had goods to the value of above 20,000^., and then dealt for 50,000/. and upwards. That on the 1st of April, 1760, the fort was attacked by a French man-of-war of 64 gi\ns, and a frigate of 20 guns, under the Count d'Estaigne, brought in by Dutch pilots ; unavoidably taken, and afterwards delivered to the Dutch, and the prisoners sent to Batavia. On the part of the defendant, after all the opportunities of inquiry, no evidence was offered that the French ever had any de- sign upon Fort Marlborough before the end of March, 1760; or that there was the least intelligence or alarm " that they might make the attempt" till the taking of Nattal in the year 1760. They did not offer to disprove the evidence that the Governor had acted, as in full security, long after the month of September, 1759, and had turned his money into goods, so late as the 8th of February, 1760. There was no attempt to show that he had not lost by the capture very considerably beyond the balance of the insurance. But the defendant relied upon a letter, written to the East India Company, bearing date the 16th of September, 1759, which was sent to England by the Pitt, Captain Wilson, who arrived in May, 1760, together with the instructions for insuring ; and also a letter bearing date the 22nd of September, 1759, sent to the plaintiff" by the same conveyance, and at the same time (which letters his lordship repeated) Qi). (h) The former of them notifies to the foot, to attempt taking that settlement East India Company, that the French by surprise ; and that it was very pro- had, the preceding year, a design on bable tliey might revive that design. It S.L.C. — VOL. I. 31 482 CARTER V. BOEHM. They relied, too, upon the cross-examination of the hroker, wlio negotiated the pohc^y, that, in his opinion, these letters ought to have been shown, or the contents disclosed ; and if they had, the policy would not have been underwritten. The defendant's counsel contended at the trial, as they have done upon this motion, " that the policy was void." 1st. Because the state and condition of the fort, mentioned in the Governor's letter to the East India Company, was not disclosed. 2ndly. Because he did not disclose that the French, not being in a condition to relieve their friends upon the coast, were more likely to make an attack upon this settlement, rather than remain idle. 3rdly. That he had not disclosed his having received a letter of the 4th of February, 1759, from which it seemed that the French had a design to take this settlement, by surprise, the year before. They also contended that the opinion of the broker was almost decisive. The whole was laid before the jury ; who found for the plaintiff. Thirdly — It remains to consider these objections, and to examine "whether this verdict is well founded." To this purpose it is necessary to consider the nature of the contract, at the time it was entered into. The policy was signed in May, 17C0. The contingency was, whether Fort Marlborough was or would be taken by an European enemy, between October, 1759, and October, 1760. The computation of the risk depended upon the chance, " whether any European power would attack the place by sea." It' tliey did, it was incapable of resist- ance. The underwriter at London, in May, 1700, could judge much better of the probability of the contingency than Governor Carter could, at Fort Marlborough, in September, 1759. He knew the success of the operations of the war in Europe. He confesses iind roiii-osuiits the wc;\l. 820, 823. lessee under a lease 2->rior to the mort- (e) In Litchfield V. Ready, 5 Excli. 939, gage to avail himself of such lease on an it was held that such action would not ejectment by the mortgagee, if he has lie ; but see Barnctt v. Guilford, 11 had notice before the action that the Exch. 19 ; a.TiA post, p. 508. mortgagee did not intend to turn him (/) When the question was argued at out of possession. This doctrine is, how- the bar, Lord Mansfield said he entirely ever, long since overruled. See JRoe v. approved of what had been done by Reade, 8 T. R. 118 ; Doe v. Staple, 2 Id. Nares, J., upon the Oxford Circuit, and 684. afterwards confirmed by this court, in Tlie notes lo this case are now incorporated with the notes to Moss v. Galliniorc, which follows. MOSS V. GALLIMOKE AND ANOTHEE. MICHAELMAS.— 2(d GEO. 3. [reported, 1 DOUGL. 279.] A mortgagee, after giving notice of the mortgage to a tenant in possession under a lease prior to tlie mortgage, is entitled to the rent in arrear at the time of the notice, as well as to what accrues afterwards, and he may distrain for it after such notice. In a notice for the sale of a tlistress, it need not be mentioned when the rent fell due (rt). In an action of trespass, which was tried before Nares, J., at the last assizes for Staffordshire, on not guihy pleaded, a verdict was found for the plaintiff, subject to the opinion of the court, on a case reserved. The case stated as follows : One Harrison being seised in fee, on the 1st January, 177"2, demised certain premises to the plaintiff for 20 years, at the rent of 40/., payable yearly on the 12th May ; and in May, 1772, he mortgaged the same premises, in fee, to the defendant Mrs. Gallimore. Moss continued in possession from the date of the lease, and paid his rent regularly to the mortgagor, all but 28/. which was due on and before the month of November, 1778, when the mortgagor became a bankrupt, being at the time indebted to the mortgagee in more than that sum for interest on the mortgage. On the 3rd January, 1779, one Harwar went to the plaintiff, on behalf of Gallimore, showed him the mortgage deed, and demanded from him the rent then remaining unpaid. This was the first demand that Gallimore made of the rent. The plaintiff told Harwar that the assignees of Harrison had demanded it before, viz., on the 31st December ; but, when Harwar said that Gallimore would distrain for it if it was not paid, he said he had some cattle to sell, and hoped she would not distrain till they were sold, when (a) A man is not bounl by his notice Whilscd, 2 E. & E. 804; see ante, p. 427. of distress ; Crowther v. Ramsholtom, 7 A notice of distress must be iu writing ; T. R. 654, per Lord Kenyon ; Phillips v. Wilson v. Nightingale, 8 Q. B 1034. S.L.C. — VOL. I. 32 498 MOSS V. GALLIMORE. he would pay it. The plaintiff not having paid according to this undertaking, the other defendant, hy order of Gallimore, entered, and distrained for the rent, and thereupon gave a written notice of such distress to the plaintiff, in the following words : " Take notice, that I have this day seized and distrained, &c., by virtue of an authority, &c., for the sum of 28/., being rent, and arrears of rent, due to the said Esther Gallimore, at Michaelmas last past, for, &c., and unless you pay the said rent, &c." He accord- ingly sold cattle and goods to the amount of 22Z. 2s. The question stated for the opinion of the court was, whether, under all the circumstances, the distress could be justified ? Wood for the plaintiff'. Bower for the defendants. Wood. — The plaintiff's case rests upon two grounds : 1st, The defendant, Gallimore, not being, at the time when the rent distrained for became due, in the actual seisin of the premises, nor in the recei]3t of the rents and profits, she had no right to distrain. 2nd. The notice was irregular, being for rent due at Michaelmas, whereas this rent was only due and payable in May. — 1. Before the statute of 4 Anne, c. 16 (b), a conveyance by the reversioner was void without the attornment of the tenant (c) , which was necessary to supply the place of livery of seisin. Since that statute I admit that attornment is no longer necessary to give effect to the deed ; but it does not follow from thence, that a grantee has now a right to distrain, before he turns his title into actual possession. The mortgagor (according to a late case (d)) is tenant at will to the mortgagee, and has a right to the rents and profits due before his will is determined. Nothing in this case can amount to a determination of the will before the demand of the rent on behalf of the mortgagee, and the whole of that for which the distress was made became due before the demand. If the mortgagor himself had been in possession, he could not have been turned out by force : the mortgagee must have brought an ejectment. The assignees had called upon the plaintiff for the rent, as well as Gallimore, and how could he take upon himself to decide between them? The mortgagee should have brought an ejectment, when any objection there might have been to the title could have been discussed. It (//) Sect. 9. (d) Kccch v. Hall, M. 19 Geo. 3, ante, (c) Co. Litt. 309 a, b. p. 494. MOSS V. GALLIMORE. 499 does not appear from the case that the interest m arrear had ever been demanded of the mortgagor, and there is a tacit agree- ment that the mortgagor shall continue in possession and receive the rents till default is made in paying the interest. 2. The notice is irregular, and, on that account, the distress cannot be justified. By the common law, the goods could not be sold. The power to sell was introduced by the statute of William and Mary (c) ; but it is thereby required that notice shall be given thereof; "with the cause of taking," &c. These requisites are in the nature of conditions precedent, and, if not complied with, the proceedings are illegal. It is true, this irregularity, since the statute of 11 Geo. 2 (/), does not make the defendants trespassers ah initio, but the action of trespass is still left by that statute, for special damages incurred in consequence of the irregu- larity ((/). Lord Mansfield observed, that the plaintiff was precluded by the case from going for special damages arising from any sup- posed irregularity in the sale, no such special damages being found, and the question stated being only, whether the distress was justifiable ; and Buller, J., said that it was not necessary, by the statute of William and Mary, to set forth in the notice at what time the rent became due. Botver. — If the law of attornment remained still the same as it was at common law, the conversation stated to have taken place between the plaintift' and Harwar would amount to an attorn- ment ; and, when there has been an attornment, its operation is not restrained to the time when it was made : it relates back to the time of the conveyance, and makes part of the same title ; like a feoffment and livery, or a fine or recovery and the deed declaring the uses ; Lung y. Hemming (/;). Now, however, any doubts there might have been on this subject are entirely removed by the statute of Queen Anne, the words of which are very explicit, viz. {i) : " that all grants or conveyances of any manors, rents, reversions, or remainders, shall be as good and effectual to all intents and purposes, without any attornment of the tenants, as if their attornment had been had and made." (c) 2 W. & M. Sess. 1, c. 5, s. 2. note to Six Carpenters Case. (/) Cap. 19, s. 19. (/i) 1 Anders. 256 ; Cro. Eliz. 209. {g) See on this point, ante, p. 132, in (i) 4 Anne, c. 16, s 9. 32 2 500 MOSS V. GALLIMORE. The proviso in the same statute (k), which says that the tenant shall not be prej udiced by the payment of any rent to the grantor before he shall have received notice of the grant, shows that it was meant that all the rent which had not been paid at the time of the notice should be payable to the grantee. The mortgagor is called a tenant at will to the mortgagee. That may be true in some respects, but it is more correct to consider him as acting for the mortgagee in the receipt of the rents as a trustee, subject to have his authority for that purpose put an end to, at whatever time the mortgagee pleases. It is said, the proper method for the mortgagee to have followed would have been to have brought an ejectment, but it is only a very late practice to allow a mort- gagee to get into the possession of the rents by an ejectment against a tenant under a lease prior to the mortgage (l). The interest, it is said, is not stated to have been demanded : but the case states, that, at the time of the notice and distress, more than the amount of the rent in arrear was due. It is said the tenant could not decide between the mortgagor (or, which is the same thing, his assignees) and the mortgagee ; but that is no excuse. He would have had the same difficulty in the case of an absolute sale ; a mortgage in fee being, at law, a complete sale, and only differing from it in respect of the equity of redemp- tion, which is a mere equitable interest. The court told him it was unnecessary for him to say anything on the other point. Lord Mansfield. — I think this case, in its consequences, very material. It is the case of lands let for years and afterwards mortgaged, and considerable doubts, in such cases, have arisen in respect to the mortgagee when the tenant colludes with the mortgagor ; for, the lease protecting the possession of such a tenant, he cannot be turned out by the mortgagee. Of late years the courts have gone so far as to permit the mortgagee to proceed ])y ejectment, if he has given notice to the tenant that he does not intend to disturb his possession, but only requires the rent to be paid to him, and not the mortgagor (in). This, however, is entangled witli difficulties. The question here is, whether the mortgagee was (k) Scft. 10. longer exists. See note, ante, p. 496. (/) JVhiffi V. Ilawkim, M. 19 Geo. 3. [m) But thi.s is at present never per- This jiractifc was anomalous, and no mitted. See ante, p. 496. MOSS V. GALLIMORE. 501 or was not entitled to the rent in arrear. Before the statute of Queen Anne attornment was necessary, on the principle of notice to the tenant ; but, when it took place, it certainly had relation back to the grant, and, like other relative acts, they were to be taken together. Thus, livery of seisin, though made afterwards, relates to the time of the feoffment. Since the statute, the conveyance is complete without attornment ; hut there is a pro- rision, that the tenant sliall not he 2>^'yndice(i for any act done hy Mm as holding under the grantor, till he has had notice of the deed. Therefore, the payment of rent hefore such notice is good. With this protection, he is to be considered, by force of the statute, as having attorned at the time of the execution of the grant ; and, here, the tenant has suffered no injury. No rent has been demanded which was paid before he knew of the mortgage. He had the rent in question still in his hands, and was bound to pay it according to the legal title. But having notice from the assignees, and also from the mortgagee, he dares to prefer the former, or keeps both parties at arm's length. In the case of •executions, it is uniformly held that, if you act after notice, you do it at your peril. He did not offer to pay one of the parties on receiving an indemnity. As between the assignees and the mortgagee, let us see who is entitled to the rent. The assignees stand exactly in the place of the bankrupt. Now, a mortgagor is not properly tenant at will to the mortgagee, for he is not to pay him rent. He is only quodani modo. Nothing is more apt to confound than a simile. When the court or counsel call a mortgagor a tenant at will, it is barely a comparison. He is like a tenant at will. The mortgagor receives the rent by a tacit agreement with the mortgagee, but the mortgagee may put an ■end to this agreement when he pleases. He has the legal title to the rent, and the tenant in the present case cannot be damni- fied, for the mortgagor can never oblige him to pay over again the rent which has been levied by this distress. I therefore think the distress well justified ; and I consider this remedy as a very proper additional advantage to mortgagees, to prevent collusion between the tenant and the mortgagor. AsHUKST, J. — The statute of Queen Anne has rendered attorn- ment unnecessary in all cases, and the only question here arises upon the circumstance of the notice of the mortgage not having 502 MOSS V. GALLIMORE. been given till after the rent distrained for became due. Where the mortgagor is himself the occupier of the estate, he may be considered as tenant at will ; but he cannot be so considered if there is an under-tenant ; for there can be no such thing as an under-tenant to a tenant at will. The demise itself would amount to a determination of the icill. There being in this case a tenant in possession, the mortga,L;or is, therefore, only a receiver of the rent for the mortgagee, who may, at any time, countermand the implied authority, by giving notice not to pay the rent to him any longer. BuLLER, J. — There is in this case a plea of the general issue, which is given by statute {n), but if the justification appeared upon the record in a special plea, the distress must be held to be legal. Before the act of Queen Anne, in a special justification, attornment must have been pleaded ; but since that statute it is never averred in a declaration in covenant, nor pleaded in an avowry. In the case of Keeeh v. Hall, referred to by Mr. Wood, the court did not consider the mortgagor as tenant at will to all purposes. If my memor}^ do not fail me, my Lord distinguished mortgagors from tenants at will in a very material circumstance, namely, that a mortgagor would not be entitled to emblements. Expressions used in particular cases are to be understood icith relation to the subject-matter then before the court. The postca to be delivered to the defendants. (?0 11 Geo. 2, c. 19, s. 21. Under these two cases of Keech v. Hall and ]\Ioss v. Galli- more, the position of a mortgagor, and of his tenants, whether let in before or after the mortgage, will be con- sidered. The position of the tenants of the mortgagor who were let in before the mortgage will be considered first. T'osition of Moss V. Gollimore is the leading case upon a point which tf^nant under j^^gj^jg c^q clear in princii)le that, were it not for its general lease niade l)y . . ^ ^ y iiiortgaf,'or importance, it would be perhaps a matter of surprise that "^/',','i! """*' iiiiy case should have been requisite to establish it. The mortgagor having conveyed his estate to the mortgagee, the tenants of the former become of course the tenants of the latter. MOSS V. GALLIMORE. 503 The necessity of their attonnnent was removed by the EiTectof 4 act of Anne, which, though it provides that they shall not «,. 9 '10. ' bo prejudiced b}' the abolition of attornment, and conse- (juently renders valid any payments they ma}^ make to the mortgagor without notice of the mortgage, nevertheless places the mortgagee in the situation of the mortgagor, immediately upon the execution of the mortgage-deed, subject only to that proviso in tlie tenants' favour, and enables him, by giving them notice of the conveyance, to place himself to everj' intent in the same situation towards them as the mortgagor previously occui)ied ; Rmrson v. Eicke, 7 A. & E. 451; Burroires v. Gmdin, 1 D. & L. 213. Payments made by the tenants to a mortgagor after the mortgage, but before notice of it, must, in order to be valid against the mortgagee, have been made in respect of rent which was due at the time of payment or became due before notice of the mortgage; De XlcJtoIls v. Saunders, L. K. 5 C. r. 589; Cook v. Gtierra, L. R. 7 C. P. 132. • Such being the situation of the tenant with respect to the mortgagee, it was considered unfair tliat he should not be proportionably exonerated from his liabilities to the mort- gagor; therefore, where a lessor, after the execution of the lease, mortgaged the premises, it was held that he could not afterwards maintain ejectment for a forfeiture ; Doc v. Edwards, 5 B. cl- Ad. 1065. Although a tenant cannot dispute the title of his land- lord, yet he ma_y confess and avoid it by showing that it has been determined b}' the conveyance to the mortgagee ; Doe V. Edwards, supra. Now, however, the Judicature Act, 1873, provides (s. 25, Etlect of sub'S. 5) that "a mortgagor entitled for the time being to ^ gg g 25^^ ' the possession, or receipt of the rents and profits, of any sub-s. 5. land as to which no notice of his intention to take possession, or to enter into the receipt of the rents and profits thereof, shall have been given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent, or recover damages in respect of, any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person." By virtue of the above provision it seems that the mort- gagor may now sue to recover possession or rent from tenants let in before the mortgage, until the mort^acjee has 504 KEECH V. HALL. Authority of mortgagor of reversion to distrain as bailiff" for mortgaciee. Tenant under lease by mort- gagor made after mort- traije. 44 & 4'. Vict. c. 41. Situation of mortgagor's tenant at common law. given notice of his intention to take possession or to receive the rents and profits. In Trent v. Hiuit, 9 Exch. 14, it was laid down as a general principle of law that, if a lessor who has mortgaged his reversion is permitted hy the mortgagee to continue in the receipt of the rent incident to that reversion, he is presiunptione juris authorised during such permission to realise the rent, if necessary, by distress, and to distrain for it in the mortgagee's name and as his bailiff. In Snell v. Finch, 13 C. B. N. S. 651, and Reece v. Strousherg, 54 L. T. 133, this principle was adopted and acted upon ; and in the latter case it seems to have been held that the dis- tress need not be in the name of the mortgagee ; see also Christchurch v. Buckingham, 17 C. B. N. S. 891, 413. This implied authority is limited to a distress upon a lawlul occasion; Troit v. Hunt, supra; Snell v. Finch, supra, per Willes, J. ; and continues onl}' until the mortgagee inter- feres by giving notice; Delaney v. Fox, 2 C. B. N. S. 768, 774, jx'r Willes, J. Such being the situation of a tenant who comes in under the mortgagor before the mortgage, let us now examine a subject which seems to involve more difficult}-, nameh', that of a tenant who has entered under the mortgagor subse- quently to the mortgage. First, it must be observed that the Conve3'ancing Act, 1881, has introduced a material difference, for that Act gives to the mortgagor or mortgagee, while respectivel}' in possession, a statutory power of leasing, unless otherwise provided by the mortgage {see j^ost, p. 510). But it seems to have become a common practice to provide in the mort- gage deed that the mortgagor shall not have that statutory power of leasing, and therefore the common law as to the position of tenants who have entered under the mortgagor is still of great importance. At common law the mortgagee may eject, without notice to quit, a tenant who claims under a lease from the mort- gagor granted after the mortgage without the privity of the mortgagee. This was the point decided in Keech v. Hall, which has been since frequently confirmed ; see Doe v. Giles, 5 Bing. 421 ; Doe v. Maisey, 8 B. & C. 767 ; Thunder v. lielcher, 3 East, 449 ; Smartle v. Williams, 3 Lev. 387 ; GiJ>I>s v. Cruickshauk, L. II. 8 C. P. 454; Lows v. Telford, 1 A pp. Cns. 414. At coiiuiKiii l;i\v it was once alleged tliat, unlike a tenant MOSS V. GALLIMOUE. 505 who had entered previous to the mortgage, a tenant who had entered since the mortgage was estopped from disputing the title of the mortgagor unless he was actually evicted by the mortgagee, and could not confess and avoid it, inasmuch as it had never really existed during the period of his posses- sion, and this idea derived a good deal of countenance from the decision in Alchorne v. Gomme, 2 Bing. 54, though in tiiat case the decision, upon demurrer, turned upon the fact that the plea denied the title of the lessor at the time of the demise. This subject was afterwards fully discussed in Pojye v. Early d.ictrine Biggs, 9 B. & C. 245, and in that case, followed in Waddi- ga^ee, by love V. Barnett, 4 Dowl. 348, it was held that a " mortgagee, giving notice by giving notice of the mortgage to the tenant, may thereby comes substi- make him his tenant, and entitle himself to receive the *"ted for _ mortgacjor as rents. ihe mortgagor, said Farke, J., may be con- landlord. sidered as acting in the nature of a bailiff or agent for the Pope v. Biggs. mortgagee. His receipt of rent will, therefore, be good until the mortgagee interferes, and he may recover on the contracts he has himself entered into in his own name with the tenants. But where the mortgagee determines the implied authority by a notice to the tenants to pa}" their rents to him, the mortgagor can no longer receive or recover any unpaid rent, whether already due or no ; " see also Burroiccs v. Gradin, 1 D. li' L. 213, i)er Wightman, J. The doctrine thus promulgated in Popr v. Biggs was. Above doc- however, shaken by Partington x. Woodcock, 6 A. & E. 690, ^Hne shaken. and Rogers v. Humphreys, 4 Id. 313. And at length, in Evans v. Elliot, 9 Id. 342, it was expressly decided by the J^mns v. Queen's Bench, on a question whether the mortgagee had a right to distrain, tJiat tlic mortgagee cannot hy the mere fact of giving the mortgagor' s tenant a notice, cause him to hold of himself, the mortgagee, and that even a subsequoit attornment by the tenant to the mortgagee will not have the effect of setting up his title as la)idlord hy relation. The result of this decision and of that in Broicn v. Storey, Now, to create 1 Scott, N. R. 91, seems to be that at common law, in order mort.n""^ to create a tenancy between the mortgagee and the tenant there must be , . • ' 1 .1 ^ '" i^i i, 1 evidence of let into possession by the mortgagor, tliere must be some a<,n-eemeiit. evidence whence it may be inferred that such relation has been raised by mutual agreement, and tliat in such case the terms of the tenanc}' are to be ascertained (as in an ordinaiy case) from the same evidence as proves its existence, and that it does not lie in the power of the mortgagee by a mere 506 KEECH V. HALL. notice to cause the tenant in possession to hold under him on the same terms on which he hekl under the mortgagor — or indeed upon any terms at all without his, the tenant's, And, if any, a consent. And that, where the tenant does consent to hold new tenancy -, .-, , , • ^ n - is created. under the mortgagee, a neio tenancy is created, not a con- tinuation of the old one between him and the mortgagor. These decisions were approved and followed by the C. A. in Toiverson v. Jaclson, (1891) 2 Q. B. 484, where the prin- ciple was affirmed that the relation of landlord and tenant between the mortgagee and a tenant of the mortgagor can be created only by agreement. In Brown v. Storey, indeed, the Court of Common Pleas expressed an opinion that, if the mortgagor's tenant, after receiving notice from the mortgagee to pay rent to him, con- tinued in possession, it might fairly be inferred that he assented to continue as tenant to the mortgagee. This opinion was followed by the Q. B. D. in Underhay v. Bead, 20 Q. B. D. 209, but the decision was affirmed upon another ground in the C. A. (see post, p. 507). The question was sub- sequently considered in Toiverson v. Jackson, (1891) 2 Q. B. 484, and the C. A. held that the mere fact of the tenant remaining in possession after notice from the mortgagee was no evidence of an agreement that he would become tenant to the mortgagee, and that the view taken in Brown v. Storey, supra, and Underhay v. Bead, supra, was wrong and con- trary to the principle laid down in Evans v. Elliot, supra. Terms of snch It would seem that when a new tenancy is thus created tenancy. '^^, agreement the terms of such new tenancy must be proved by evidence, and that the mere fact that the tenant has paid rent to the mortgagee after notice is no evidence that the tenancy is to be upon the same terms on which the tenant held under the mortgagor ; see Oakley v. j\Io)ick, 1 Ex. I). 159. Case where In Ihirroivcs V. (Jradiii, 1 D. c^' li. 218 (which may be w^itirinort- considered a middle case), Wightman, J., held that an ^','i«or after agreement made after the mortgage between the mortgagor te'ii'aiHiy ' ' ii»^^ a tenant from year to year, whose tenancy connnenced liavin^ before the mortgage, for i)ayment of an additional annual < (irnnienccd ^ . • i i.- r • . i i ^i iieforc it. sum as rent, m consideration oi improvements made by the mortgagor, liad not the effect of so changing the situation of tlie parties, tbat the tenant could be considered as no longer holding of tlic mortgagee ; and furtiier, that the mortgagee might adopt the dealing of the mortgagor as his agent, and (after notice of the; mortgage) recover not merely the aniount MOSS V. GALLIMORE. 507 of rent originally payable, but the additional sum also, which, in consequence of the improvement of the land, the tenant agreed to pay ; a remarkable decision, so far as relates to the additional sum agreed to be paid, because it appears from Donellan v. Read, 3 B. & Ad. 899, and Lambert v. Norris, 2 M. & W. 334, that that sum was not rent properly so called, but a sum in gross, for which an assignee of the reversion could not sue, nor could an assignee of the term be sued. The reasoning ofWightman, J., though expressly limited to the peculiar circumstances of the case, and especially founded on that of the tenancy having existed at the time of the mortgage, tended in some degree to confirm the erroneous conclusions formerly drawn from Poj)cy. Biggs, supra, p. 505. It would seem that the cases on this subject might be Tenant, if reconciled to ordinary principles, without straining after I'nortc'acee any peculiar rule ai^plicable to the case of mortgagor and may dispute mortgagee, by observing that a tenant of the mortgagor, title." ° whose tenancy has commenced since the mortgage, may at commoli law, in case of an eviction by the mortgagee, either actual or constructive, dispute the mortgagor's title to either the land or the rent, in the same wa}' as any tenant may do upon an eviction by title paramount. Such a tenant is con- structively evicted by the mortgagee, if he has been com- pelled by the mortgagee to become his tenant ; Corbett v. Plou-deu, 25 Ch. D. 678 ; see Doc v. Barton, 11 A. & E. 314 ; Poole v. Wliitt, 15 M. & W. 571 ; Dclaney v. Fox, 2 C. B. N. S. 768; and Carpenter v. Parker, 3 Id. 237. And further, he can, although there have been no eviction, defend Tenant may an action for rent by proof of a payment, under constraint, nient of rentT" in discharge of the mortgagee's claim ; Johnson v. Jones, 9 to mortgagee. A. & E. 809, which was approved and followed by the C. A. in Underhaij v. Read, 20 Q..B. D. 209. This right is analogous to that of an ordinai-y tenant in respect of pay- ments on account of rent-charges, and other claims issuing out of the land, of whicli examples are cited in the note to LampleigJi v. BraitJiwaite, ante. But a tenant who has come But otherwise in under the mortgagor after the mortgage, and has neither ^'^"^ot tl°*end " " no? action by paid the rent to the mortgagee, nor been evicted by him mortgagor for either actually or constructively before the day of payment, ^'^"*' cannot defend an action by the mortgagor for that rent ; Wheeler Y. Branscombe, 5 Q. B. 373. As the mortgagor ceases to be entitled to the rents upon No action for the mortgagee's giving the tenant notice, and the tenant's ''''"* accruing paying them to him, it follows that the mortgagor cannot notice by 508 KEECH V. HALL. mortgagee, or due when notice given, but unpaid, if paid to mortgagee. Xotice with- out payment or e\actioii no defence. Mortgagee's right as to mesne prolit?. Six montlis' notice hy mortgagee necessary under 513 }c 54 Vict. c. 57. 46 & 47 Vict. v.. 01. 50 & 51 Vict, c. 26. afterwards maintain any action for use and occupation against the tenant, either for rent which accrued due after the notice, or for rent which accrued due hefore the notice, but was unpaid at the time when the notice was given. In the former case the defence amounts to a denial of the con- tract alleged, which avers the defendant to have used and occupied the land by the permission of the plaintiff, the mortgagor. But in the latter case, viz., where the rent be- came due hefore notice, but was unpaid at the time of notice, the tenant confesses that the right of action once existed, but avoids it by matter ex 'post facto, viz., by the subsequent notice from the mortgagee ; Waddilovc v. Barnett, 2 B. N. C. 538. It appears to be now settled that at common law the mere notice without payment or eviction is not a defence to an action by the mortgagor against the tenant, either for rent due before {Wilton v. Dunn, 17 Q. B. 294 ; Hickman v. Machin, 4 H. lI^ N. 716), or after the notice {Hickman v. Machin). In Litchfield v. Ready, 5 Exch. 919, it was held that the mortgagee could not, after entry, maintain trespass for mesne profits before entry against the mortgagor's tenant let in after the mortgage. It is to be observed, however, that Parke, B., in giving judgment in that case, proceeds upon the ground that the doctrine of relation back of pos- session to title is confined entirely to the case of disseisor and disseisee, a view which the same learned judge modified in the later case oi Barnett v. Guilford, 11 Exch. 19, where the doctrine was applied in the case of entry by the heir on an abator. In the case oi Anderson y. Bafcliffe, E. B. & E. 80(5 — 819, the doctrine was applied in the case of entry by the assignee of a term ; but in the judgment of the Exch. Cham, the case of mortgagor and mortgagee seems to be put upon a distinct and special footing ; S. 0. 29 L. J. Q. B. 128. Under the Tenants' Compensation Act, 1890, a person who occupies land under a contract of tenancy with the mortgagor, which is not binding on the mortgagee of the land, can be deprived of the land by the mortgagee only in accordance with tlie contract of tenancy, or after six months' notice in writing from the mortgagee (s. 2, sub-s. 2). This provision applies only wliere the holdings come within the Agricultural Holdings Act, 1883, or the Allotments and Cottage Gardens Compensation for Crops Act, 1887 (s. 1), and where the contract is for a yearly tenancy, or for a term MOSS l\ GALLIMORE. 509 of years not exceeding twent3'-one, at a rack-rent (s. 2, sub- s. 2). A tenant who lias entered after tlie mortgage can protect Tenant's himself from eviction by the mortgagee bv redeeming the "^,^^* **^ " '^ • f^ redeem. mortgage. In Keeck v. Hall, Lord Mansfield says: "Where the lease is not a beneficial lease, it is for the interest of the mortgagee to continue the tenant ; and where it is, the tenant may put himself in the place of the mortgagor, and eit))er redeem himself or get a friend to do it." No instance, however, is to be found of a tenant having taken this course until the case of Tam v. Turner, 39 Ch. D. 456. In that case a tenant who had entered under an agreement with the mortgagor for a lease for a term of years brought an action to redeem the mortgage, and the C. A. held that he was clearly entitled to redeem, because he had an interest in the equit}' of redemption. A tenant who holds under an agree- ment for a lease is entitled to redeem, if he has an undis- puted right to specific performance of the agreement ; Tarn V. Turner, su])ra. AVhen once it has been proved that the mortgagee has Mortgagee recognised that the tenant of the mortgagor is lawfully in ^g"",*;*^' ^^^^^ possession, he cannot afterwards treat him as being a tort- lawfully in feasor at the time of such recognition ; nor, if he elect to and aTtort- treat him as a tortfeasor, can he maintain any demand against feasor, him in which he is charged as being a tenant at any time during which he elected to treat him as a trespasser. The case oiBlrcli Y.Wright, 1 T. li. 378, clearly establishes that a man cannot be treated at once both as a tenant and a trespasser. In Doe V. Cadicalader, 2 B. & Ad. 473, it was held that Kecognitiou the receipt of interest from the mortgagor was no recognition possession. by the mortgagee that the mortgagor or his tenants were in lawful possession at the time of such receipt ; but in Doe v. Hales, 7 Bing. 322, the court held, that where the mort- gagee had demanded from a tenant of the mortgagor rent to pay the interest and had threatened a distress, and the rent had been paid to him, he thereby recognised that the tenant was lawfuU}' in possession at the time of such payment, and could not afterwards treat him as having been then a tres- passer ; see Doc v. Lewis, 13 M. & W. 241 ; Due v. Goodier, 10 Q.B. 957. There now remains to be considered the situation, rela- Situation of tively to the mortgagee, of the mortgagor's tenant where the thTcon^" ^^ lease has been made by the mortgagor under the statutory veyancing power given by s. 18 of the Conveyancing Act, 1881. ti&lTvict c. 41. 510 KEECH V. HALL. ^* ^^- This section applies to all mortgages made after 1 January, 1882 (sub-s. 16). The powers given by this section may be excluded or modified by the mortgage deed or a written agreement (sub-s. 13), or may be enlarged by the mortgage deed (sub-s. 14) ; they may also be made to apply to amort- gage made before 1 January, 1882, by a written agreement for that purpose (sub-s. 16). The powers conferred by s. 18 are as follows. The mortgagor, while in possession, has power to make from time to time, (1.) An agricultural or occupation lease for an}' term not exceeding 21 years ; (2.) A building lease for any term not exceeding 99 years (sub-ss. 1 and 3). Every such lease must be made to take effect in possession not later than 12 months after its date (sub-s. 5), and must re- serve the best rent reasonably obtainable, without an}^ fine being taken (sub-s. 6) ; and must contain a covenant by the lessee to pay the rent, and a condition for re-entry on non- payment thereof within a specified time not exceeding 30 days (sub-s. 7). A counterpart of the lease must be executed by the lessee and delivered to the lessor, and the execution of the lease by the lessor is, in favour of the lessee, sufficient evidence of such execution and deliver}'' (sub-s. 8) ; the counterpart must be delivered by the mortgagor to the first mortgagee within one month after making the lease, but the lessee is not concerned to see that this is done (sub-s. 11). Building leases must be made in consideration of the lessee having built, improved, or repaired, or having agreed so to do, within 5 years from the date of the lease (sub-s. 9) ; and the rent I'eserved thereon, for the first 5 years, or a less j)art of the term, may be a peppercorn or nominal rent, or other rent less than the rent ultimately jjayable (sub-s. 10). The provisions of s. 18 are to be construed to extend and apply, so far as circumstances admit, to any letting, and to an agreement, whether in writing or not, for leasing or let- ting (sub-s. 17) ; and a contract to make or accept a lease under s. 18 may be enforced by or against every person on whom the lease, if granted, would be binding (sub-s. 12). This enactment does not enable a mortgagor to make a lease for a longer term, or on any other conditions, than he could have granted or imposed, with the concurrence of all the incumbrancers, if the Act had not been passed (sub- s. 15). b. 10. Th(! same Act jjrovidos by s. 10, with reference to leases iiuide after 1 January, 1882 (sub-s. 2), that " rent reserved by MOSS V. GALLIMOHE. 511 a lease, and the benefit of every covenant or provision therein contained, having reference to the subject-matter thereof, and on the lessee's part to be observed or performed, and every condition of re-entry and other condition therein con- tained, shall be annexed and incident to, and shall go with the reversionary estate in the land, or in any part thereof, immediately expectant upon the term granted by the lease, notwithstanding severance of that reversionary estate, and shall be capable of being recovered, received, enforced, and taken advantage of by the person from time to time entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased." And s. 11 pro- S. il. vides that the obligation of the lessor's covenants with reference to the subject-matter of the lease shall in like manner run with the reversion, if and so far as the lessor has power to bind the reversionary estate. The effect of the above sections is, that a lease made by a Effect of mortgagor in possession, which complies with the provisions ^^' * ^""^ of s. 18, is good against the mortgagee, and that the mort- gagee, upon giving notice to the tenant, or going into posses- sion, is entitled to enforce the covenants and conditions in the lease as reversioner, and is bound by the lessor's cove- nants ; Municipal Soc. v. Smitli, 22 Q. B. D. 70; JJllsou v. Queen's Club, (1891) 3 Ch. 522. In JShtnicipal Soc. v. Smith, the mortgagor had granted a lease under s. 18, and the mortgagee was held to be entitled to re-enter for non-pay- ment of rent after he had given notice to the tenant to pay the rent to him ; and in Wilson v. Queen's Club the mort- gagor leased a part of the land, and the mortgagee subse- quently conveyed another part of the land adjoining to other persons, and it was held, that the grantees of the mortgagee could not obstruct the access of light to houses built by the lessee upon the land leased to him by the mortgagor, the mortgagee being bound by the lease as if he had joined in it. The mortgagee is not bound or affected by any collateral or independent agreement which the mortgagor may have made with the lessee ; Municipal Soc. v. Smitli, supra. I will conclude this part of the note by taking notice of a Leases by case which sometimes occurs ; viz., that of a lease purport- "lortSa^ee '^'^ ing to be by mortgagor and mortgagee jointl3\ Such an jointly. instrument operates as a lease by the mortgagee, with a confirmation by the mortgagor, until the estate of the former has been determined by paying off the mortgage-money, and then it becomes the lease of the mortgagor, and the confir- 5]2 KEECH V. HALL. Right of entry iu such leases. Covenants iu such leases. Cases where mortgage operates as a re-demise to mortgagor. KlTeet of covenant tliat mortgagor sliall remain in jtossession for a fixed mation of the mortgagee. It followed, before the Com- mon Law Procedin-e Act, 1852, that, if ejectment was brought agamst the tenant during the mortgagee's estate, the demise mitst liave been laid in the name of the mort- gagee ; if afterwards, in that of the mortgagor ; but a joint demise laid in the declaration would not have been improper; Doe V. Adams, 2 Tyr. 289 ; Doe v. Goldsmith, Id, 710. A right of re-entry reserved only to the mortgagor in a lease by mortgagor and mortgagee was (before the Conveyancing Act, 1881) held not to be available to the plaintiffs in ejectment bj'' the mortgagor and mortgagee; Saunders x. Merryweather, 3 H. & C. 902. The mortgagee could not re-enter, because no right of re-entry was reserved to him ; the mortgagor could not, because he had no legal interest in the reversion, and the facts of the case excluded an estoppel. When a mortgagor and mortgagee join in a lease, and tht^ covenants to pay rent and repair are only with the mortgagor and his assigns, the mortgagee's assign cannot (unless by virtue of the Conveyancing Act, 1881) sue on those cove- nants, because collateral to his interest in the land; Webbx. Eussell, 3 T. R. 393 ; though the mortgagor might sue on them as covenants in gross ; Stokes v. Russell, Id. 678. Where the mortgagor and mortgagee join in a lease, con- taining an express covenant by the mortgagor for quiet enjoyment, no covenant from both can be implied; Smith v, PockliiKjton, 1 Tyrwh, 313, In Harold v. Whitaker, 11 Q. B. 147, 163, in a lease by the mortgagor and mortgagee which recited the mortgage, the reddendum was to the mortgagee, his executors, &c., during the continuance of the mortgage, and after satisfaction thereof, to the mortgagor, his execu- tors, &c., and the lessee covenanted wdth. tlie mortgagee, and also with the mortgagoi', to pay the rent " on the several days and times, and in manner as the same was reserved and made payable." The covenant was held to be several. Next, there is a class of cases to be considered, in which it has been held that the mortgage, though not expressly creating a tenancy, contained provisions which operated as a re-demise by the mortgagee to the mortgagor, thus giving the latter a right to retain possession, and the power to make a valid demise. It often happens that there is an express covenant in a mortgage deed, that the mortgagor shall remain in possession of the premises until default in payment of the mortgage- money at a C(!rtain date. Up to that date he seems to have period. MOSS V. GALLIMORE. 513 an interest in the nature of a term of years ; and, of course, during the interval he has a right to possession, and cannot be legally ejected ; Wilkinson v. Hall, 3 B. N. C. 508 ; the stipulation that he should remain in possession operating as a redemise. When the fixed period has expired, he becomes, if the money has not been paid, tenant at suffer- ance to the mortgagee. " We must look," said Best, C.J., delivering judgment in such a case, " at the covenant he has made with the mortgagee, to ascertain what his real situation is. We find, from the deed between the parties, that i:)ossession of his estate is secured to him until a certain da}', and that, if he does not redeem his pledge by that day, the mortgagee has a right to enter and take possession. From that da}' the possession belongs to the mortgagee ; and there is no more occasion for his requiring that the estate should be delivered up to him before he brings an ejectment, than for a lessor to demand possession on the determination of a term. The situation of a lessee on the expiration of a term, and a mortgagor who has covenanted that the mortgagee may enter on a certain day, is precisely the same ; " Doe v. Giles, 5 Bing. 427. Attending to the distinction between an agreement to be Distinction collected from the mortgage deed that tlie mortgagor shall nieut^that^ remain in possession for a time certain, which operates as a mortgagor redemise, and an agreement that the mortgagee may enter in possession upon, or tlie mortgagor hold until, a default, the time of for a time cer- 1 ■ 1 • , . T • T , , , tain, and xiiiiil wnich IS uncertain, which agreement cannot operate as a cirfaidt, in redemise for want of certainty (Com, Dig., Estate, G. 12), operating as the view taken in JVilki>iso)i v. Hall seems not to be at variance with the later decisions in Doe v. Lif/Jitfoot, 8 M. & W. 564, and Doe v. Day, 2 Q. B. 147, though extended too widely in Doey. Goldwin, 2 Q. B. 143. As for Wheeler v. Montefiore, 2 Q. B. 133, explained by Mortgagee of the court in Doe v. Day, Id. 155, it has no bearing upon i^i^rTrespass the question ; because in that case the mortgage was for a before entry. term of years, the mortgagee had never entered, and his action was for trespass ; which form of action a lessee for years cannot maintain before entry ; although he may bring ejectment, because in ejectment the rigJit to the possession only is in question ; Harrison v. Blackhurn, 34 L. J. C. P. 109. In Turner v. Cameron's Coal Co., 5 Exch. 932, the Scmble, nor . 1 . .IIP 1 can mortgagee mortgage does not appear to have been tor years or a less j^ fee. estate, and the court was of opinion that the mortgagee could not maintain trespass before entry, because he had S.L.C. VOL. I. 33 514 KEECH V. HALL. In Doe V. Goldwin, though time for which mortgagor was to hold uncer- tain, held a redemise ; but a^ to this case qucvrc. Doe V. Light foot. Time uncer- tain, no rede- mise. Doe V. Day. Same doctrin* not entered ; and see per Parke, B., Litchfield v. Ready, 5 Exch. 919, 945 ; Com. Dig., Trespass, B. 3. In Doe V. Goldirin, 2 Q. B. 143, a conveyance of the legal estate was made by Lyster and his wife, in order " to secure an annuity upon which money had been advanced ; " and it was in trust, amongst other things, to permit Mrs. Lyster to receive the rents until default made for sixty days in payment of the annuity ; and, no default appearing, it was held that the legal estate remained by way of redemise in Lyster. But, to cite the observation of the court in a sub- sequent judgment {Doe v. Day, 2 Q. B. 155), " it may be questionable whether sufficient attention was paid in that case to the point as to the certainty of the time : at all events, it was not decided upon any ground that such cer- tainty was immaterial." It may be further observed, upon Doe V. Gold ic in, that the nature of the transaction does not appear very distinctly, and the conveyance seems not unlikely to have been simply a demise or assignment of a term to secm-e the annuity, and so to have admitted of considerations different from those which govern the case of an ordinary mortgage ; see Jenkins v. Milford, 1 J. & W. 629 ; Doe v. Kensinfjton, 8 Q. B. 429. In Doe V. Lightfoot, 8 M. & W. 553, the proviso was, that if the mortgagor should pay the principal and interest on the next 2otli March, the mortgagee should reconvey, and there were covenants that after defaidt the mortgagee might enter, and also, after default, for further assurance. The court, referring to the passage in Shepherd's Touchstone presently to be stated in full, and observing that it was not brought to the attention of the court in Wilkinson v. Hcdl, held that the estate was in the mortgagee from the time of the execution of the mortgage, and that the statute of limi- tations began to run from that time ; see also Rogers v. Grazehrook, 8 Q. B. 895. In Doe V. Day, 2 Q. B. 147, freeholds and leaseholds were conveyed in mortgage with a proviso that, upon pay- ment on the next 5th October, the conveyance should be void, but in case of non-payment it was to be lawful ior the mortgagee, after a month's notice in writing demanding payment, to enter into possession, and to make leases and sell, and tlio mortgagee covenanted not to sell or lease until after such notice. The court, following the authority of the l)assage in the Touchstone, referred to in Doe v. Lightfoot, and acceding to the doctrine of that case, came to the MOSS V. GALLIMORE. 515 conclusion that, inasmuch as, after the clay of payment, the time, if any, during which the mortgagor was to hohl was not determinate, but altogether uncertain, and as there was no affirmative covenant whatever that he should hold at all, " the covenant, therefore, that the mortgagee should not sell or lease, or even if it be construed should not enter, until a month's notice, was a covenant onl}' and no lease." The passage in Shep. Touch. (8th ed.) '272, referred to Shep. Touch, in Doe v. Lir/htfoot, and cited and commented upon in Doe V. Day, is as follows : — " If A. do but grant and covenant with B., that B, shall enjoy such a piece of land for twenty years ; this is a good lease for twenty years. So, if A. promise to B. to suffer him to enjoy such a piece of land for twenty years ; this is a good lease for twenty years. So, if A. license B. to enjoy such a piece of land for twenty years ; this is a good lease for twenty years. And therefore it is the common course, if a man make a feoffment in fee, or other estate upon condition, that if such a thing be or be not done at such a time, that the feoffor, &c., shall re-enter, to the end that in this case the feoffor, &c.,|may have the land, and continue in possession until that time, to make a covenant that he shall hold, and take tlie profits of the land until that time ; and this covenant in this case will make a good lease for that time, if the uncertainty of the time, whereunto care must be had, do not make it void. (Mr. Preston adds, ' The limitation of a certain term, with a collateral determination on the event, would meet the difficulties of the case.') And, therefore, if A. bargain and sell his land to B. on condition to re-enter if he pay him lOOL, and B. doth covenant with A. that he will not take the profits until default of payment ; or that A. shall take the profits until default of payment ; in this case, howbeit this may be a good covenant, yet it is no good lease (' for want,' says Mr. Preston, 'of a more formal contract, and also for want of certainty of time '). And if the mortgagee covenant with the mortgagor, that he will not take the profits of the land until the day of payment of the money ; in this case, albeit the time be certain, yet this is no good lease, but a covenant only (' since,' says Mr. Preston, ' the words are negative only, and not affirmative '). Precisely the same law is laid down in Powschj v. Blackman, Cro. Jac. 659 ; Evans v. Thomas, Cro. Jac. 172 ; Jemmot v. Coaly, 1 Lev. 170; S. C, 1 Saund. 112 b., 1 Sid. 223, 33 2 516 KEECH V. HALL. What neces- sary to make a redemise. Agreement in mortgage for tenancy by mortgagor, or power of dis- tress to mort- gagee. Effect on mortgagee's right to bring ejectment depends in each case on tlie terms of the deed. Doe V. Ollnj. 262, 344; Sir T. Raymond, 135, 158; 1 Keb. 784, 915; 2 Keb. 20, 184, 270, 295." It may perhaps be concluded, on this review of the autho- rities, that in order to make a redemise, there must be an affirmative covenant, that the mortgagor shall hold for a determinate time ; and that where either of those elements is wanting, there is no redemise. A mortgage deed sometimes contains an express agree- ment that the mortgagor shall be tenant to the mortgagee at a rent ; or a power enabling the mortgagee to distrain, by which no tenancy is created. The object of such provisions is generally to further secure payment of the interest, and, if so provided, of the principal ; see Ex p. Harrison, 18 Cli. D. 127 ; an object more completely effected by adopting the former than the latter mode of framing the deed. The former makes the mortgagor tenant to the mortgagee and creates a rent properly so called, with all its incident remedies; Anderson v. Midland R. Co., 30 L. J. Q. B, 94 ; see Jolhj v. Arhuihnot, 4 De G. & J. 224 ; West v. Fritche, 3 Exch. 216 ; Morton v. Woods, L. R. 4 Q. B. 293 ; Daubuz v. Lavington, 13 Q. B. D. 347 ; Re Threlfall, 16 Ch. D. 274 ; Ex p. Voiseij, 21 Id. 442 ; Kearsley v. Philips, 11 Q. B. D. 621, where Brett, M.R., quoted this passage with approval. The latter mode operates merely by way of personal licence from the mortgagor, and affects his interest only. The former mode, however, is open to the objection that the tenancy created, unless apt words to the contrary are used (see Re Threlfall, supra), is at will, and conse- quently the rent precarious ; and to the more practical one, that the deed may possibly be held to require a lease stamp ; see 18 Jurist, part 2, p. 150. The effect of either mode of framing the deed upon the right of the mortgagee to bring ejectment must, in each case, depend upon the terms in which it is framed. Further, the terms of the deed are important in considering a series of cases noted later on, in which the question is discussed whether instruments of mortgage purporting to create the relation of landlord and tenant between mortgagee and mortgagor have really had that effect so as to give the mortgagee the rights of a landlord as against other creditors of the mortgagor on ike hankruptcif of the latter. In Doe v. Olley, 12 A. il- E. 481, it was agreed that the mortgagor, during his occupation of the premises, should pay the mortgagee a rent of 50Z. a year, with such power of MOSS V. GALLIMORE. 517 distress as landlords have on common demises, provided that the reservation of rent shoukl not prejudice the mortgagee's right to enter after default in payment of the moneys secured. The mortgagee, after tlie principal had fallen due, distrained for half a year's rent, and upon a subsequent default in payment of rent, the principal still remaining due, he, without any notice to quit, brought ejectment, and succeeded. Patteson, J., in that case, expressed his opinion that it could not be meant that the 50/. should be a rent-charge, because the mortgagor had no estate in him, and that it seemed "as if the relation of landlord and tenant was contemplated, but with liberty for the landlord to treat the tenant as a trespasser at any time after any default." That decision was confirmed and acted on in Doe v. Tom, 4 Q. B, 615. In Doe V. Cox, 11 Q. B. 122, the mortgagor agreed to Doe v. Cox. become tenant " henceforth at the will and pleasure of the mortgagee, at the yearly rental of 25/. 4.s\ payable quarterly," which agreement was held to create a tenancy at will, not converted into a tenancy from vear to year b}^ occupation and payment of rent for two years. In Metropolitan, dc. Society v. Broicn, 4 H, & N. 428, Metropolitan powers of sale and entry after default on a certain day were society y given by the mortgage deed, which provided that, " to the £roivn. intent that the mortgagees might have for the recover}^ of interest on the principal money the same powers of entry and distress as are given to landlords for the recovery of rent in arrear," the mortgagor " did thereby attorn and become tenant from year to year of the premises to the mortgagees at a yearly rent, payable half-yearly. Never- theless, in the event of any sale under the powers therein- before contained," the attornment and tenancy thereby created was, " as regards such jjortion of the })remises as should be sold, to be at an end ; and that witliout any previous notice to p)ut an end to the sa)ne." The assignees of the mortgagees after default in payment on the da}' named, without giving the mortgagor a half year's notice to quit served him with a notice of entry, and on his refusal to give up possession brought ejectment against him, which action was held maintainable. " The clause of attornment," said Pollock, C.B., " did not create a tenancy from year to year tcitli all its incidents, and, looking at the deed in its entirety, the true construction is that the right of entry overrides the other provision, and therefore, notwithstanding the tenancy 518 KEECH V. HALL. Morton v. Woods. In re Threl- fall. Clowes V. Hughes. thereby created, the mortgagee may re-enter on default of payment of the interest." The majority of the court seem to have been of opinion that such form of mortgage creates a tenancy from year to 3'ear, determinable on the part of the mortgagee without notice to quit. Where a mortgage deed, which was never executed by the mortgagee, contained an attornment by the mortgagor for the term of ten years, with a proviso that the landlord might enter and determine the term at his will, it was- urged, on the authority of Brooke's Abr., tit. Lease, 13^ that the proviso must be rejected as rei:)ugnant, and that as there was no deed executed the term for ten years was void. But the court held that, though this might be so in the case of an ordinary lease, yet, looking at the whole object and scope of the deed in question, a tenancy was thereby created so as to support a distress by the mortgagee ; Morton v. Woods, L. K. 4 Q. B. 293. As to the exact nature of the tenancy, see x>er Lush, L.J., in Ex i^. Punnett, 16 Ch. D. 226, where this case was expressly followed by the C. A. Similarly, in Re Threlfall, 16 Ch. D. 274, where the mortgage deed contained an attornment clause whereb}' the mortgagors " did attorn and become tenants from year to year to " the mortgagees, with a proviso that the mort- gagees might at any time after a certain date, without notice, take possession of the mortgaged premises, it was held by the C. A. that there was no repugnancy between these two clauses, and that a tenancy from year to year in the mortgagors was created which supported a distress by the mortgagees; see also Exp. Voisey, 21 Ch. D. 442. Where a mortgage deed provided that the mortgagor in the event of liis making default should " ijiimediately or at any time after such default" hold the mortgaged premises as yearly tenant to the mortgagees from the date of the deed, at a specified rent, it was held that the mortgagor did not, upon default, become tenant so as to give the mort- gagees a right of distress, until after some notice from tliem to him of tlie cliange they had resolved to make in the terms upon which his possession was suffered ta continue ; Clowes v. Iliu/lies, L. K. 5 Ex. 160. Wliere by an attornment clause the mortgagor became tenant at will to the mortgagee, at a rent equal to the amount of the interest, i)ayable half-yearly, and upon the mortgagor's death his heir-at-law entered into possession^ MOSS V. GALLIMORE. 519 and for some time paid the interest due under the mortgage, it was lield that no teiumcy existed between the mortgagee and the heir-at-law ; Scohie v. Collin, (1895) 1 Q. B. 375. In these cases, the reLition of landlord and tenant Cases in which appears to have at first existed ; but there have been licence to others of a like character, in which a mere personal distrain, or ,.. ,p TT, rent-charge licence to distrain, or a rent-chai-ge (afterwards merged by given to the acquisition of the legal estate), has been given to the mortgagee, mortgagee. Thus in JDoe v. Goodier, 10 Q. B. 957, there was a power in the mortgagee to distrain for interest if in arrear twenty-one days, " in like manner as for rent resei'ved on a lease ; " and though the mortgagee had entered and distrained after the day of the demise in ejectment, but for interest due before that da,y, he was considered not to have recognised the mortgagor as his tenant, and to be entitled to maintain ejectment. In Freeman v. Edwards, 2 Exch. 732, the mortgage, Freeman v, which ,was of copyholds, contained a similar power to ^ "'"^ *' distrain for interest ; the mortgagee was admitted to the copyholds; the mortgagor became bankrupt, and, wliilst he still remained in possession, the mortgagee distrained for interest in arrear ; for whicli act the assignees of the mort- gagor sued in trespass. The mortgagee pleaded justifica- tion under the deed, which plea was held bad after verdict. The aro'uments advanced on either side, and the view taken by the court of the operation of such a power, appear fully ill the following passage from the judgment of Parke, B., as reported 17 L. J. Ex. 261 — " The utmost effect that can be given to this deed is to consider it as operating as a covenant that the mortgagee may seize such goods of the mortgagor as shall be on the premises at the time the distress is made, and treat them as if distrained ; such a covenant would not atlect any specific goods before seizure, and therefore the goods came to the assignees not subject to any equity. Probably, the argument that the grant operated so as to create a rent- charge is correct ; and if so, the rent-charge continued until the surrender and admittance. But it is not necessary to decide that, for as soon as the grantee of the rent-charge, if it was one, became entitled to the fee simple in possession, the rent-charge was gone, and the covenant ceased to exist as an obligation binding the land. It might, however, still exist as a personal covenant, binding the covenantor, though it would not affect third persons. The argument of the plaintiff's 520 KEECH V. HALL. counsel, that the effect of the deed was exhausted by the creation of the rent, ma}^ make this doubtful ; and it is not necessary to decide it, for, giving the covenant this effect, it will not make this a good plea. The covenant at most is to be construed as an agreement that all goods belonging to Leedham (the mortgagor) at the time of the distress, and then upon the land, might be seized. This would afil'ect his own goods when seized. Up to the seizure the whole is contingent, and gives no lien on specific goods. Before the distress was made, Leedham became bankrupt ; at that time the whole of the goods which were his property, and then upon the land, were contingently liable to be seized, but no specific portion was liable more than the rest. There was, therefore, no lien on any portion of the goods, according to the principle of the decision in Carvallio v. Burn, 4 B. & Ad. 382, 1 A. & E. 883. Then, at the moment of the distress the goods had ceased to belong to Leedham, and became the property of the assignees, and, as goods not belonging to the covenantor, were not subject to the covenant; " see also Chapman v. Beecham, 3 Q. B. 723. A personal licence to distrain would seem not to be trans- ferable, and the assignee of the mortgage could not justify a seizure under it as a servant of the mortgagee ; Broicn v. Metropolitan, cCc, Soc, 1 E. & E. 832; Be Davis, 22 Q. B. D. 193. In certain cases the courts have held, on various grounds, that the mortgage deed, though purporting to create a tenancy in the mortgagor, had not that effect. Thus, in JFalher- v. Giles, 6 C. B. 662, where a conveynnce to the trustees of a building society, to secure payment of subscrip- tions, contained a clause whereby the mortgagor agreed to become thenceforth tenant of the ])remises to the trustees "during their will, at the net A'early rent of 200L, payable on the usual quarter days," the court held that there was no tenancy, thi' gencsral scope of the deed being inconsistent with such a construction, since, if there was a tenancy, the mortgagor might he called vipon to pay both the subscriptions and the rent. This case seems, however, open to the anim- adversion which it called forth in the 13 Jurist, part 2, ]>. 463, and 17 Jui'ist, i)art 2, p. 149 ; and the court api)ears to have disregarded the exi)ress intciilit'n of the piirties, in order to avoid the fancied injustice of the ti'ustees having ]>ower (subject to the contrcd of a court of equity) to recover iheir (U'bt twice over, in otlici' words, to treat the rent as MOSS V. GALLIMOKE. 521 security for payment of the sul)scrii)tions. And in the sub- sequent case of I'iiihoru v. Soiistcr, 8 Exch. 70B, where the Pinhom v. deed more fully, though scarcely more clearly, than mWalkcr ' ''"'' ^'' V. Giles, expressed the intention that a tenancy at will should be created, and stipulated that the mortgagee should apply the rent in satisfaction of tlie rent due from the mortgagor to his superior landlord, and in satisfnction of the principal and interest, and pny the suri)lus, if any, to the mortgagor, Walker v. Giles was distinguished, and it Avas held that a tenancy at will was created, in respect of which the mort- gagee might distrain ; and further, that such tenanc}^ was not ))ut an end to by assignment of the mortgagor's interest without notice to the mortgagee. In Broini v. MetropoUtmi, <.(:c., Soc, 1 E. e^' E. 832, the court expressed an opinion that Walker v. Giles could only be supported, if at all, on the ground, pointed out by Parke, B., in Pinhom v. Souster, that the tenancy and power of distress were inconsistent with the other provisions of the deed ; see also Doe v. Daries, 7 Exch! 89 ; Turner v. Barnes, 2 B. & S. 435 ; Ex p. Har- rison, 18 Ch. D. 127. Again, there have been cases in which the courts have held that no tenancy was created so as to support a distress, when it appeared, from the terms of the mortgage, that it was never the intention of the parties to create a real tenancy, but that the attornment clause was a mere device to defeat the bankruptcy law by giving the moiigagee a pre- ference over the mortgagor's other creditors. This was held to be the case where the rent nominally reserved was ex- travagantly high as compared with the real value of the mortgaged premises; Ex p. Williams, 7 Ch. D. 138; Ex p. Jackson, 14 Id. 725, distinguished in Ex p. Voisey, 21 Id. 442, where the subject is fully discussed by the C. A.; see also Re Stockton Co., 10 Id. 335. In Hampson v. Eellows, L. B. 6 Eq. 575, the mortgagor Hampson v. assigned the lease for twenty-one years of a house in which ^'^^^°'^'^- he resided, together with policies of insurance on his life, to secure repayment of 250/. and interest, and the premiums on the policies. V>j the deed the mortgagor attorned tenant to the mortgagee at the yearly rent of 175/., with a proviso for the determination of the tenancy at the will of the mortgagee. Malins, V.-C, restrained by injunction a distress under this clause for the principal, holding, however, that the mort- gagee would have been justified in distraining under it for any " outgoings under the deed," i.e., for interest on the 522 KEECH V. HALL. Mr parte Harrison. Mortgagor sometimes made tenant to receiver. Jolly V. Arbtcthnot. advance, premiums on the policies, or the hmfUord's rent of the house. The ground on which the Vice-Clnmcellor came to the conchision that such was the intention of the clause, was apparently- that the 175/. was, in round numhers, the aggregate amount of those outgoings. This case, however, was not followed in Ex j)- Harrison, 18 Ch. D. 127. The attornment clause there provided for a yearlv rent of 593L 15s., which was equal to the annual interest at 4f per cent, primarily covenanted for, though such interest was reducible on punctual payment to 3| per cent. In the C. A., notwithstanding those circumstances, it was held that the fruits of a distress under the clause were properly applicable to principal as well as interest. Another mode of securing the mortgagor's possession of the mortgaged premises is to make him tenant to a third person appointed by him and the mortgagee to receive the rents. This was done in Jolly v. Arhuthnot, 4 De G. & J. 224. In that case, by a deed, executed at the same time as the mortgage, and made between the mortgagor, mortgagee, and Aplin, after reciting that it was agreed that, for the purpose of securing pajanent of the interest, and providing a fund for repayment of the principal, the mortgagor should attorn as tenant to Aplin, it was witnessed that the mort- gagor and mortgagee in pursuance of the agreement consti- tuted Aplin receiver of the rents and profits of the premises, with powers of entry and distress, and that the mortgagor attorned to Aplin and became his tenant from year to year ; provided that, on default in payment, the mortgagee might enter and avoid the tenancy created b}' the attornment, and that nothing contained in the deed should abridge his rights or powers under the mortgage. After execution of this deed, and after default in payment on the appointed day of the principal sum secured by the mortgage, the mortgagor was adjudicated bankrupt, and thereupon Aplin distrained for a year's rent on his goods on the premises. The chief ques- tion was, which of the two parties — the mortgagee, or the assignees in bankruptcy of the mortgagor — was entitled to the proceeds of this distress. Ilomilly, M.K., decided in favour of the assignees, holding that the relation of landlord and tenant did not exist between the bankrupt and the receiver, for, as the receivership deed recited the true state of the title, it could not by estoppel constitute that lelution, and that consequently no estate was conferred on Aplin to wliich the right of distress could be MOSS V. GALLIMORE. 523 annexed so as to be available against an assignee of the mortgagor. It seems, however, that his Honour, in refer- ring to Dancer v. Hastings, 4 Bing. 2, (where a demise by a receiver appointed in Chancer}^ was held to be a good lease to entitle him to distrain, and to estop the tenant from deny- ing the tenancy,) did not notice the report of that case in 12 B. Moore, 34, which report shows that there the lease, setting out the title of the lessor as receiver appointed by the court, disclosed the fact that he had no interest in the land. Against this decision the mortgagee appealed, and the appeal was allowed by Lord Chelmsford, whose judgment contains a learned review of the authorities upon the sub- ject. The Lord Chancellor held that the fact that the truth of the case appeared on the deed was a reason why the agreement of the parties should be carried out, either by giving effect to their intentions in the manner prescribed, or by wjiy of estoppel to prevent their denying the right to do the acts which they had authorized to be done ; and that even if the creation of the tenancy did not admit the scin- tilla of a reversion to which the right of distress might be annexed, yet there was nothing in such cases to prevent the power from being exercised, although there might be no reversion in the person to whom the attornment was made ; that the relation of landlord and tenant was in fact created by the intention of the parties, and that consequently the power of distress was not a mere power in gross, but might be exercised against the assignee; see also Evans v. Mathias, 7 E. & B. 590. In Morton v. Woods, L. E. 4 Q. B. 293, the Exch. Cham, expressly followed the above decision of Lord Chelmsford, and the last-mentioned case was follow^ed by the C. A. in Ex p. Punnett, 16 Ch. I). 226. By the Bills of Sale Act, 1878, s. 6, it is provided that Effect of "every attornment, instrument, or agreement, not being a Acts upon mining lease, whereby a power of distress is given, or agreed 'Attornment • * *j o cltlUS6S to be given, by any person to any other person b}" way of 41 & 42 vict. security for any present, future, or contingent debt or ad- *-"• ^^■ vance, and whereby any rent is reserved or made j^ayable as a mode of providing for the payment of interest on such debt or advance, or otherwise for the purpose of such security only, shall be deemed to be a bill of sale, within the meaning of this Act, of any personal chattels which may be seized or taken under such power of distress. Provided that nothing in this section shall extend to an}' mortgage of an}' estate or 524 KEECH V. HALL. interest in any land, tenement, or hereditament, which the mortgagee, hcimi in i^osscssion, shall have demised to the mortgagor as his tenant at a fair and reasonable rent." 44 & 45 Viet. Under the provisions of the above Act, and of the Bills of Sale Act, 188'2, any attornment which comes within the terms of s. 6, and is not excepted by the proviso, is void as a bill of sale unless it is registered, though it need not be in the form prescribed b}^ the Act of 1882 ; Green v. Marsh, (1892) 2 Q. B. 330. In Re Willis, 21 Q. B. D. 384, it was held by the majority of the judges in the Court of Appeal that an attornment clause in a mortgage which, by creating the relation of landlord and tenant between the mortgagee and mortgagor, gave a power of distress to the mortgagee for the rent at which the mortgagor had attorned tenant, was a bill of sale, and void so far as it gave a power of distress. With respect to the proviso to s. 6, Lindley, L.J., said : " It appears impossible to bring within this proviso any case except one in which the mortgagee has been in possession, and, being in possession, has demised to the mortgagor at a fair and reasonable rent." Lord Esher, while not disagreeing with this decision, expressed great doubts whether it was right. In Green v. Marsh, (1892) 2 Q. B. 330, the mortgage deed, executed in 1886, contained an ordinary attornment clause at a quarterly rent, and expressh' gave a power of distress. In 1890, after the decision in Re Willis, the mortgagor wrote a letter to the mortgagee, acknowledging that he held the premises as his tenant at a weekly rent slightly higher than the rent specified in the attornment clause, and undertaking to deliver up possession of the premises at any time on four weeks' notice. The C. A. held that the attornment clause did not make the mortgagee "a mortgagee in possession " within the meaning of the proviso to s. 6, and that the attornment clause and subsequent letter were void for want of registration. The provisions of s. 6 of the Bills of Sale Act, 1878, do not, howevei', in other respects, render void the ordinary attornment clause in mortgages, so as to ])i-event the rela- tion of landlord and tenant being created by such clause between the mortgagee and mortgagor; Danhuz v. Lavington, 13 (^ ]i. 1). 347 ; Hall v. Comfort, 18 Id. 11 ; Miimford v. Collier, 25 Jd. 279. Position of With r(!spect lo the nature of the mortgagor's possession mortgagor iii ^^j^^^^. ^j^^^ mortgage, where there is no stipulation that he MOSS V. GALLIMORE. 525 should be allowed to remain in possession for an}- certain iiossfssioti time, there seems to be more difficulty. Messrs. Coote and no' stipulation Morley, in an elaborate note to Watkins on Conveyancing, '''-it lie may it'-. XT • • • i.1 A ii-i- xi 1 ■ remain ill for deliver it as tlieir opnnon, that it there be no express ^ lime certain. agreement originally as to the period of i)ossession, and the mortgagor, being the occupant, remain in jiossession icith the consent of the mortgagee, it seems that, in such a case, he ought to be considered strictly as tenant at will." This is true, if it be admitted that he has remained in Question is, possession ivith the consent of the moitgariee. But the more ^^ ^^J "t b '*^^ difficult question seems to be under what circvirastances is mortgagee. the mortgagee's consent to be taken to exist, and whether it is to be implied merely from the fact of his abstaining from ousting the mortgagor immediately after the execution of the mortgage. Certainly neither the case of Thunder v. Belcher, 3 East, 450, nor that of Smartle v. Williams, 1 Salk. 246, 3 Lev. 387, which are cited by Messrs. Coote and Morley, have any tendency in favour of such an impli- cation ) for, in the former, ejectment was brought against a tenant let into possession by the mortgagor after the mort- gage ; and, as there had been no recognition of him by the mortgagee, there was judgment against him ; and so far was the court from considering that the mortgagor would, under the circumstances above supposed, have been tenant at will, had he remained himself in possession instead of letting, that Lord Ellenborough says, "A mortgagor is no more than a tenant at sufferance, nor entitled to any notice to quit ; and one tenant at sufferance cannot make another." In Smartle v. Williams the mortgagor certainly remained in possession, and that with the express consent of the mortgagee, for Holt, C.J., says : " Upon executing the deed of mortgage, the mortgagor, hy the covenant to enjoy till default of ixiyment, is tenant at will." But in that case the mortgagee had assigned the mortgage ; and the question was, whether, by doing so, he had determined his will, and whether the mortgagor's subsequent continuance in posses- sion divested the estate of the assignee, and turned it to a right so as to prevent a person to whom the assignee after- wards assigned, and who brought the ejectment, from taking any legal interest ; upon which point the court held that it had no such effect, since the mortgagor was, at all events, tenant at sufferance after the assignment. And it is believed that no decision exists in which a Xo decision 526 KEECH V. HALL. that mort- gagor ill pos- session with- out consent is more than tenant at suflerance. Mortgagor in possession sometimes described as tenant at will quodammodo. Dicta of judges on the point. mortgagor remaining in possession, after an absolute con- veyance away of his estate, b}'^ way of mortgage, without any consent on the part of the mortgagee, express or to be implied otherwise than from his silence, has been con- sidered in any other light than as tenant at sufferance, to the definition of whom he seems strictly to answer, being a person who comes in hy right, and holds over ivithout right; see Co. Litt. 57, and Lord Hale's MSS., note 5, where the following case is put, which seems analogous : — " if tenant for years surrenders, and still continues posses- sion, he is tenant at sufferance or disseisor at election." This subject has been treated at some length, because the reader will find it often said that a mortgagor in posses- sion is tenant at ivill quodammodo ; an idea which Lord Mansfield especially seems to have countenanced, for in Keech v. Hall he says, " when the mortgagor is left in possession, the true inference to be drawn is an agreement that he shall possess the premises at icill, in the strictest sense : and, therefore, no notice is ever given him to quit, and he is not even entitled to reap the crop, as other tenants at will are, because all is liable to the debt ; " and in Moss v. Gallimore, he calls the mortgagor " tenant at will qiiodam- modo." Whereas Lord Ellenborough, in Thunder v. Belcher, denominated him " tenant at sufferance ; " and it is submitted that it is more convenient to range his possession under some one of the ancient and well-known descriptions of tenancy than to invent the new and anomalous class of tenants at will quodammodo, for the only purpose of including it. See Litt. s. 381. " A mortgagor is not in all respects a mere bailiff; he is much like a bailiff ; he is not a mere tenant at will ; in fact, he can be described merely by saying he is a mortgagor; " jjer Parke, B., Litchjicld v. Ready, 20 L. J. Exch. 51. " He is not a tenant at all ; " per Patteson, J., Wilton v. Dunn, 17 Q. B. 299, and Watson, B., Hickman v. Machin, 4 H. & N. 722. " Tlie case of Keech v. Hall estabHshed the doctrine that (in the absence of any contract or conduct to vary the application of the law) a mortgagee having the legal estate may, without any notice to quit, treat the tenant or lessee of tlic mortgagor as a trespasser or wrong- doer ; and tliat the possession held by tlie mortgagor, or those holding under him, until the mortgagee thinks fit to take it, is in the strictest sense precarious, and held at the mere will of the mortgagee," j>cr Lord Selborne, Lows v. MOSS V. GALLIMORE. 527 Telford, 1 App. Cas. 42G ; and see Jolly v. ArJniOinot, 4 De G. & J. 224 ; Powell v. Aiken, 4 K. & J. 343 ; Thori) v. Fai-ey, 35 L. J. C. P. 349 ; Ex p. Ishericood, 22 Ch. D. 391, per- Jessel, M.R. In Gihbs V. Cruickshank, L. R. 8 C. P. 454, the court GUbsv. seem to adopt the view that the mortgagor is a tenant at (-'''"^'^^^f'^'"'^- sufferance, but that at any rate he cannot create a sub- tenancy ; his sub-tenants are mere tort feasors and cannot sue the mortgagee in trespass. The Judicature Act, 1873, s. 25, provides that a mort- Judicature gagor in possession may, until the mortgagee has given .^6^ & 37V'ict notice of intention to take possession, sue for possession, or c. 66. to recover rents, or to recover damages for trespass or other wrong, in his own name ; see ante, p. 503. Upon the whole it is concluded, 1st. That if there be in Rules to be the mortgage-deed an agreement that the mortoagor shall f°;„ ^•'^ °^ ^ o D o o loregoiug continue in possession till default of payment on a certain cases. day, he is in the meanwhile termor of the intervening term. 2ndl3\ .That if default be made on that day, he becomes tenant at sufferance. Srdly. That when there is no such agreement he is tenant at sufferance immediately upon the execution of the mortgage, unless the mortgagee expressly or impliedly consented to his remaining in possession. 4thly, That such consent renders him tenant at will. 5thly. That if in any of the last three cases he let in tenants, they may, in cases not falling within the Conveyancing Act, 1881, s. 18, be treated by the mortgagee, if he think proper, as tort feasors. 6thly. That they may, by agreement with the mortgagee, become his tenants under a new tenancy. Lastly, that the mere receipt of interest by the mortgagee from the mortgagor, or a mere notice from the mortgagee to pay rent to him, even if the tenant continues in possession, is not evidence of such an ao-reement. WIGGLESWORTH v. DALLISON. TRINITY.— l^ GEO. 3. [reported, 1 DOUGL. 201.] A custom tliat tlie tenant, whether by parol or deed, shall have the way- going crop, after the expiration of his term, is good, if not repugnant to the lease by which he holds («). This was an action of trespass for mowing, carrying away, and converting to the defendant's own use, the corn of the plaintiff, growing in a field called Hibaldstow Leys, in the parish of Hibaldstow, in the county of Lincoln. The defendant Dallison pleaded liberum tenementum, and the other defendant justified as his servant. The plaintiff replied, that true it was that the locus in quo was the close, soil, and freehold of Dallison ; but, after stating that one Isabella Dallison, deceased, being tenant for life, and Dallison, the reversioner in fee, made a lease on the 2nd March, 1753, by which the said Isabella demised, and the said Dallison confirmed, the said close to the plaintiff, his executors, administrators, and assigns, for 21 years, to be computed from the 1st May, 1755, and that the plaintiff, by virtue thereof, entered and continued in possession till the end of the said term of 21 years — he pleaded a custom in the following words, viz., " that within the parish of Hibaldstow, there now is, and, from time whereof the memory of man is not to the contrary, there hath been a certain ancient and laudable custom, there used and approved of, that is to say, that every tenant and farmer of any lands within the same parish, for any term of years which hath expired on the first day of May in any year, hath been used and accustomed, and of right ought, to have, take, and enjoy, to his own use, and to reap, cut, and carry away, when ripe and fit to be reaped (a) Ah to the posscHhion remaining in the fences in repair, see Griffiths v. the tenant, wln-ro lie is entitled hy I'li^lcston, 13 M. & W. 359. cuatom to the way-going crop, lie keeping AVlCJUI.ESWOPtTH V. DALLISUN. 529 and taken away, his way-going crop, that is to say, all the corn growing upon the said lands which hath before the ex- piration of Such term been sown by such tenant upon any part of such lands, not exceeding a reasonable quantity thereof in proportion to the residue of such lands, according to the course and usage of husbandry in the same parish, and which hath been left standing and growing upon such lands at the expira- tion of such term of years." He then stated that, in 1775, he sowed with corn part of the said close, being a reasonable part in proportion to the residue thereof, according to the course and usage of husbandry in the said parish, and that tbe corn produced and raised by such sowing of the corn so sown as aforesaid, being the corn in the declaration mentioned, at the end of the term, and at the time of the trespass committed, was standing and growing in the said close, the said time not exceeding a reasonable time for the same to stand, in order to ripen' and become fit to be reaped, and that he was during all that time lawfully possessed of the said corn, as his absolute property, by virtue of the custom. The defendant, in his re- joinder, denied the existence of any such custom, and con- cluded to the country. The cause was tried before Eyre, B., at the last assizes for Lincolnshire, when the jury found the custom in the words of the replication. Baldwin moved, in arrest of judgment, that such a custom was repugnant to the terms of the deed, and therefore, though it might be good in respect to parol leases, could not have a legal existence in the case of cases by deed. He relied on Truniper v. Carwardine, before Yates, J. (/>), the circumstances of which case were these : " The plaintiff had been lessee under the corporation of Hereford for a term of 21 years, which expired on the 4th Dec. 1767. In the lease there was no covenant that the tenant should have his off-going crop. In the seed-time, before the expiration of the term, he sowed the fallow with wheat. The succeeding tenant obstructed him in cutting the wheat when it became ripe, and cut and housed it himself, for his own use. Upon this the plaintiff brought an action on the case, and declared on a custom in Herefordshire for tenants to quit their {b) At the summer assizes for Herefordsluru, 1769. S.L.C. VOL. I. 34 530 WIGGLESWORTH V. DALLISON. farms at Christmas or Candlemas to reap the corn sown the precedmg autumn. Yates, J., held that the custom could not legally extend to lessees by deed, though it might prevail, by implication, in the case of parol agreements : that, in the case of a lease by deed, both parties are bound by the express agree- ments contained in it, as that the term shall expire at such a day, &c., and, therefore, all implication is taken away : that, if such a custom could be set up, the Statute of Frauds would be thereby superseded in Herefordshire (e). Accordingly the plaintiff did not recover on the custom, although on another count in trover, in the same declaration, he had a verdict." A rule to show cause was granted. The case was argued on Tuesday, the 8th June, by Hill, Serj., Chamhre, and Dayrell, for the plaintiff, and Cust, Baldwin, Balgtiu, and Gough, for the defendants ; when three objec- tions were made on the part of the defendants, viz. : 1. That the custom was unreasonable. 2. That it was uncertain. 3. That, as had been contended on moving for the rule, it was repugnant to the deed under which the plaintiff had held. For the plaintiff' it was argued. 1. That it was not an un- reasonable custom, because, without an express agreement, or such a custom as this, there could be no crop the last year of a term, but the tenant would not sow if he could not reap, and the landlord would not have a right to enter till the ex- piration of the term. That it was for the advantage of the public as much as customs for turning a plough, or drying nets, on another person's land, which had been held to be good (d). That it bore a great analogy to the right of emblements, and was founded on the same principle, namely, the encouragement of agriculture. It was not prejudicial to any one; not to the landlord, because without it his land must be unemployed and unproductive for a whole season ; nor to the succeeding tenant, because he would have his turn at the end of his term. 2. That it was sufficiently certain, by the reference to the residue of the lands not sown, and to the course and usage of husbandry (c) Qucere. This argument seems more saiil tliat tliis would be repugnant to the apjilicable to parol leases, because, if a Statute of Frauds. (See post, in notis, parol lease for three years could bo ex- p. 539.) tended in sotrio degree for half a year (d) See Davis, 32 b. longer by guch a custom, it might be WIGGLESWORTH V. DALLISON. 531 in the parish. This is as much certainty as the nature of the subject will admit of ; for, if it had been that so many acres might be sown and reaped, that would have been incompatible with those variations in the proportion of ploughed land, which arise, at different times, from circumstances in the course of cultivation and husbandry. Reasonable is an epithet which sufficiently qualities the extent of customs, and is generally used in pleading them ; as with regard to customary fines paid to the lord of the manor, estovers prescribed for by a party to be taken for the use of his house, &c. In Bennington v. Taylor {e), where the defendant, in an action of trespass, had pleaded a right to distrain for twelve pence for stallage, due by pre- scription, for the land near every stall, in a fair, and on a motion in arrest of judgment, it was objected, that the pre- scription was uncertain, and therefore void, the quantity of land not being ascertained, the court held it to be certain enough, because the quantity was to be ascertained by the common usage of the fair. In all such cases, whether the quantity or amount is in truth reasonable or not, is for the jury to decide. 3. That the circumstance of the plaintiff's lease in this case having been by deed made no difference. There was no agree- ment contained in the deed, that the defendant would depart from the custom, although the parties must have known of it when the lease was executed. He did not claim under any parol contract express or implied; and, therefore, the argu- ment of repugnancy did not apply ; and the nisi prius case which had been cited, went upon mistaken reasoning. //;//, Serj,, admitted that he knew of no instance in the Reports, of a similar custom to this, in the case of freehold property ; but he said that there were several with regard to copyholds that went much farther ; and he cited Eastcourt v. Weekes (/), where a custom, that the executors and administrators of every cus- tomary tenant for life, if he should die between Christmas and Lady-day, should hold over till the Michaelmas following, is stated on the pleadings (g) ; and no objection taken to it on the argument of the case. (c) C. B., E. or T. 12 W. 3 ; 2 Lutw. (g) It is found by the special verdict, 1517, 1519. the actiou being ejectment. (/) T. 10 W.' 3 : 1 Lutw. 799, 801. 34 2 532 WKJiJLESWOilTH V. DALLISON. For the defendant were cited, Grantham v. Hawley (/<) ; White V. Sayer{i), in which last case a custom for a lord of a manor " to have common of pasture in all the lands of his tenants for life or years," which had been pleaded in justification of a trespass in the land of a tenant for years, was held to be void and against law, for that such a privilege is contrary to the lease, being part of the thing demised, and different from a prescription to have a heriot from every lessee for life, because that is only collateral (A) ; a case relied on by Houghton, J., in White v. Sayer{i), in which he said the court had decided that a custom for lessees for years to have half a year after the end of their term, to remove their utensils, was void, as being against law ; Start ujy v. Dodder idge (l), where the court refused to grant a prohibition, on the suggestion of a modus " to pay, upon request, at the rate of two shillings for every pound of the improved yearly rent or value of the land," be- cause the yearly rent or value was variable and uncertain ; N^ailoi-, qui tam, v. Scott (m), where a custom having been found by a jury, "that every housekeeper in the parish of Wakefield having a child born there, should, at the time when the mother was churched, or at the usual time after her delivery when she should be churched, pay tenpence to the vicar," the court, on a motion in arrest of judgment, determined that the custom was void, being, 1. Uncertain, because, the usual time for women to be churched was not alleged {u) ; 2. Unreasonable, because it obliged the husband to pay if the woman was not churched at all, or if she removed from the parish, or died, before the time of churching ; Carlctoii v. Brigliticell (o), where the defendant, on a bill of tithes, set up a modus that " the inhabitants of such a tenement, with the lands usually enjoyed therewith, should pay such a sum for tithe corn," and it was (h) T. la Jac. 1 ; Hob. 132. That (i) 15. 11. : M. 19 Jac. 1 : rahii. 211. case, ir at all applicable, seems to rue to (/.:) Cites 21 H. 7, 14. iiiake for tlie ])laiiitiir. It is curious in (l) E. 4 Ann. : 2 Ld. llayiu. 1158 ; 2 one re.spcct, viz., that the (piestion was Salk. 657 ; 12 Mod. 5t)o. brought on in an action uf debt on a com- (iti) E. 2 G. 2 : 2 Ld. llaym. 1558. mon binid conditioned for the payment ()/) in that case tlie custom, as sug- of 20/. to tlie jilaintiir if a certain cro}! gesti'd, tlid not refer to the usage of the of corn ilid of right belong to him ; or, imrisli. in othci words, if the (luestioii of law was (o) Cane. T. 1728 : 2 1'. "\V. 4(J2. in his favour. WIGGLESWORTH V. DALLTSON. 5)33 held by the ]\faster of the Rolls to be void for uncertamty : Harrison v. S}ia}-p{])), where a modus that, "when any of the inclosed pastures in a certain vill were ploughed and sown with corn or grain of any kind, or laid for meadow, and mown and made into hay, tithes in kind were paid to the rector, but when eaten and depastured, then the occupier paid to the vicar ■one shilling in the pound of the yearly rent or value thereof, and no more, upon some day after Michaelmas yearly," w'as held void, on the authority of Startup v. Dodderklge ; Wilkes v. Broadhent (q), where the Court of Common Pleas, and after- wards, on error brought, the Court of King's Bench, held a custom found by verdict, " for the lord of a manor, or the tenants of his collieries wdio had sunk pits, to throw the earth xind coals on the land near such pits, such land being customary tenement and part of the manor, there to continue, and to lay mid continue wood there for the necessary use of the pits, and to take coals so laid away in carts, and to burn and make into -cmders coals laid there, at their pleasure," to be void, because, among other reasons, the word near was too vague and un- certain ; Oland v. Burdiciclc (r), where a feme, copyholder durante riduitate, having sowed the land, and then married, it was determined that the lord should have the corn, upon the principle, that, when the interest in land is determined by the act of the part}^ he shall not have the crop ; an anonymous €ase in Moore (s), where it was held, that a custom " that lessee for years should hold for half a year over his term" was bad; Roe, lessee of Bree v. Lees (t), where, in an ejectment to recover a farm of about 60 acres, of which 51 were enclosed, and 9 lay in certain open fields, a special case was reserved which stated a custom, "that when a tenant took a farm, in which there was any open field, more or less for an uncertain term, it was considered as a holding from three years to three jea.vs ; " and though the court decided against the custom on other grounds, yet, by their reasoning, it clearl}^ appeared that they thought it void for uncertainty, because the quantity of open ground was not ascertained, and one rood might determine the {2>) T. 17-24 : Bunb. 174. 5 Co. 11 G. iq) B. R. : E. 18 Vr. 2, 2 Str. 1224. (*) H. 3 E.l. 6, Moore 8, pi. 27. 4/-) B. K. : II. 37 Eliz., Cro. Eliz. 460 ; {t) C. B. : M. 18 G. 3 : 2 W. Bl. 1171. 534 WICtGLESWORTH v. dallison. tenure of 100 acres of land inclosed. Besides the alwve au- thorities (((), the case before Yates, J., was much relied on. It was admitted, that, in cases where the usual crop of the coun- try is such, that it cannot come to maturity in one year, a right to hold over after the end of the term, in a parol demise, may be raised by implication ; as where saffron is cultivated, in Cambridgeshire; liquorice, near Pontefract ; or tobacco, which formerly used to be planted in Lincolnshire ; but it was contended, that, in such case, a lease by deed would preclude such implication, as the parties must be supposed to have de- scribed all the circumstances relative to the intended tenure in the written instrument. Such a custom as that set up in the present case, could not, it was said, be of sufficient antiquity with respect to leases by deed, as in the time of Ilichard I., and long afterwards, tenants had no permanent interest in their lands ; or, if there could be such a custom, the plaintiff's lease could not be within it, because the custom must have applied to the 1st of May, old style, and this lease was made and com- menced after the alteration was introduced by 24 Geo. 2, c. 23 (x). The Court took time to consider ; and this day, Lord Mans- field delivered their opinion as follows : Lord Mansfield. — We have thought of this case and we are all of opinion, that the custom is good. It is just, for he who sows ought to reap, and it is for the benefit and encourage- ment of agriculture. It is, indeed, against the general rule of law concerning emblements, which are not allowed to tenants who know when their term is to cease, because it is held to be their fault or folly to have sown, when they knew their interest would expire before they could reap (y). But the custom of a particular place may rectify what otherwise would be impru- dence or folly. The lease being by deed does not vary the (w) 4 Co. 51 b ; 1 Roll. Abr., 563, pi. errors in the former method of computa- 9 ; and Co. Litt. 55, were also cited for tion, the nominal day was continually the general jirinciples concerning eus- deviating, by degrees, from the natural tonis and emblements. day. {x} The new style commenced the 1st (y) Sec 14 k 15 Vict. c. 25, s. 1, Jan., 1753. liut if this argument were giving the tenant in lieu of emblements, udmitted in its full extent, no custom a right to occupy until the end of the could exist where a cerlnin day of the current year of his tenancy, ni'iiitli made part ol it, as, from the WIGGLESWOIITH V. DALLISON. 535 case. The custom does not alter or contradict the agreement in the lease ; it only superadds a right which is consequential to the taking, as a heriot ma}>be due by custom although not mentioned in the grant or lease {z). The rule discharged (a). (2) See Doe v. Snoicdcn, C. B., M. 19 "that the custom contained and set Geo. 3, 2 "VV. Bl. 1225, -where it is said by forth, &c., is a custom void in law, and the court, tliat if there is a taking from is contrary to and inconsistent with the Old Ladj'-day (5th April), the custom of said indenture of lease in the said repli- raost countries would entitle the lessee to cation mentioned." The ease was argued enter upon the arable at Candlemas at Serjeants' Inn, before the Judges of (2nd Feb.), to prepare for the Lent corn, G. B., and the Barons of the Exch., by without any sj)ocial words for that pur- Balguy, for the plaintiff in error, and pose, i.e., in a written agreement for Chambre for the defendant. The objec- seven years, for the court were speaking tion to the reasonableness of the custom of such an agreement. was abandoned. In T. 21 G. 3 (27th (a) Judgment was accordingly entered June, 1781), Lord Loughborough de- fer tlie plaintiff, upon whicli a M'rit of livered the unanimous opinion of the error was brought in the Exch. Cham., Court of Exch. Cham., that the custom and the defendant assigned for errors, was good, and the judgment was affirmed. Few questions are of more frequent practical occurrence than those which involve the admissibility of parol evidence of custom and usage for the purpose of annexing incidents to, or explaining the meaning of, written contracts. In Hutton V. Warren, 1 M. & W. 474, the following luminous account of this head of the law was given b}- Parke, B. : — " It has long been settled that in commercial transactions Judgment of extrinsic evidence of custom and usage is admissible to Hutton v.' annex incidents to written contracts in matters with respect ^f^arren- to which they are silent. The same rule has also been applied to contracts in other transactions of life, iu which known usages have been established and prevaiknl ; and this has been done upon the princij)le 0/ jj?Y',9/nHj)f/ou //mt, in such transactions, tJtc parties did not mean to express in writing the icJtule of the contract hy which they intended to be bound, but to contract n-itJt reference to tliose known usages. Whether such a relaxation of the common law was wisely applied where formal instruments have been entered into, and particularly leases under seal, may well be doubted ; but the contraiy has been established by such authority, and the relations between landlord and tenant have so long been regulated upon the supposition that all customary oob WIGGLESWORTH V. DALLISON. JiKlgment of oblic^ations not altered by the contract are to remain in Parke x>. in Hutton V.' force, that it is too late to pursue a contrary course ; and Warren. ^■^ would be productive of much inconvenience if this practice were now to be disturbed. The common law, indeed, does so little to prescribe the relative duties of landlord and tenant, since it leaves the latter at liberty to pursue any course of management he pleases, provided he is not guilty of waste, that it is by no means surprising tbat the court should have been favourably inclined to the introduction of those regulations in the mode of cultivation, which custom and usage have established in each district to be the most beneficial to all parties. *' Accordingly, in Wvjglesworth v. Dallisoii, afterwards afhrmed on a writ of error, the tenant was allowed an away- going crop, though tliere was a formal lease under seal. There the lease was entirely silent on the subject of such a right ; and Lord Mansfield said the custom did not alter or contradict tbe lease, but only added something to it. " The question subsequently came under the consideration of the King's Bench in Senior v. Armytage, Holt. N. P. C. 197. In that case, which was an action by a tenant against his landlord for a compensation for seed and labour, under the denomination of tenant-right, Bayley, J., on its appear- ing that there was a written agreement between the parties, nonsuited the plaintift*. The court afterwards set aside that nonsuit, and held, as appears by a manuscript note of that learned Judge, that, though tbere was a written contract between landloixl and tenant, the custom of the country would still be binding, if not inconsistent with the terms of such written contract ; and that, not only ail common obligations, but those imposed by custom, were in full force where the contract did not vary them. Mr. Holt appears to have stated the case too strongly when he said that the court held the custom to be operative, ' unless the agree- ment in exi)i'ess terms excluded it ; ' and ])r()bably he has not been quite accurate in attributing" a similar opinion to Thompson, CB., who i)resided on the second trial. It would appear tliat tlie court held tbat the custom operated, unless it could be collected from the instrument, either' cxprciiiihj or inij)HcfIli/, that the parties did not mean to be governed by it. '*()n the second ti'ial, Thompson, C.B., held that the custom ]irevaib'd, aUbough the written instrument con- laiiiiil an cxpi-css si ipubition tbat all the manure made WIGGLESWOllTH V. DALLTSON. 537 on the fjirm should be spent on it, or left at the end of the tenanc}', without any compensation being paid. Such a stipulation certainly does not exclude by implication the tenant's right to receive a compensation for seed and labour. " The next reported case on this subject is Wehh v. I'lioiuner, 2 B. tl- Aid. 74(5, in which there was a lease of down lands, with a covenant to s])end all the produce on the premises, and to fold a flock of sheep upon the usual part of the farm ; and als(^ in the last year of the term, to carry out the manure on parts of the fallowed I'arm pointed out by the lessor, the lessor paying for the fallowing land and carrying out the dung, but nothing for the dung itself, and paying for grass on the ground and threshing the corn. The claim was for a customary allowance for foldafie (a mode of manuring the ground) ; but the court held, as there was an express provision for some payment, on quitting, iov the things covenanted to be done, and an omission of fohhuic, tlie customary obligation to pay for the latter was excluded. No doubt could exist on that; the language in the lease was equivalent to a stipulation that the lessor should pay for the things mentioned, and no more. " The question then is, whether, from the terms of the lease now under consideration, it can be collected that the parties meant to exclude customary allowance for seed and labour." In the above case of llutton v. Warren, n, custom by Hu.Uonw which the tenant, cultivating according to the course of ""^"• good husbandry, was entitled, on quitting, to receive a reasonable allowance for seed and labour bestow^ed on the arable land in the last year of his tenanc}'', and was bound to leave the manure for the landlord, if he would buy it, was held not to be excluded by a stipulation in the lease that he would consume three-fourths of the hay and straws on the farm, and spread the manure arising therefrom, and leave such of it as should not be so spread on the land, on receiving a reasonable j)rice lor it. From the above luminous judgment of Parke, B., it may Cases in which be collected, that evidence of custom or usage will be received c„gtQ,j^ rccciv- to annex incidents to written contracts on matters with able to annex , . 1 • 1 ii -1 , incidents to respect to which they are silent : written con- 1. In contracts between landlord and tenant : tracts. 2. In commercial contracts : 3. In contracts in other transactions of life, in which known usages have been established and prevailed : 538 WIGGLESWORTH V. DALLI80N. Evidence must be con- sistent with written iastnunent. Customs in contracts of tenancy. But that such evidence is only receivable when the inci- dent which it is sought to import into the contract is consistent with the terms of the written instrument. If inconsistent, the evidence is not receivable, and this incon- sistency may be evinced : 1. By the express terms of the written instrument : 2. B}' implication therefrom. The above rules were cited with approval b}^ Blackburn, J., in Mt/ers v. Sari, 3 E. & E. 306. The first class of cases in which the evidence has been received, viz., cases of contracts between landlord and tenant, is so thoroughly discussed in Hutton v. Warren, supra, and WigglcsirortJi v. DaUison, that little remains to be said on that head of the subject. A custom which regulates the terms on which the tenant is to quit is not excluded by express stipulations regulating the terms on which he is to Jtold ; Holding v. Pigott, 7 Bing. 465 ; Muncey v. Doutis, 1 H. & N. 216. Thus, in the latter case, the custom of the country, that the outgoing tenant should be paid for straw left on the farm on quitting, was held not to be excluded by a provision in the lease that, during the term, he should consume all sti-aw with stock, and use the manure on the farm. A custom which makes the incoming tenant alone liable to the outgoing tenant, and exempts the landlord from all liability, is bad in law as unreasonable ; Bradburn v. Foley, 3 C. P. I). 129 ; see Favicll v. Gaskoin, 7 Exch. 273, which shows that where there is no incoming tenant, there is an implied contract b}' the landlord to pay according to the custom ; and Stafford v. Gardner, L. R,. 7 C P. 242, A custom for a tenant to sell flints turned up on the surface of tlie land and removed in the course of good husbandr}' is reasonable, and not inconsistent with the terms of a lease which provides that " the lessor reserves all mines and minerals, sand, quarries of stone, brick-earth, and gravel-pits, with liberty to enter to dig, take, and carry away the same, doing no unnecessary damage; " Tucker v. Linger, 8 App. Cas. 508. By custom the tenant may be entitled to hold ovci- a i)a)-t of tlu; land after the expiration of the notice to quit provided for by the lease ; Re Paul, 24 (.). B. 1). 247. A custom, not of the country, but pre- valent between owner and tenants of a particular landed estate, is not binding on a tenant who becomes such without notice of its existence; Wotnen^Jey v. Jhdly, 26 L. J. Ex. 21'J. As to the evidence of contract between the outgoing WIGGLES WORTH V. DALLISON. 539 and incoming tenant to pay for tillages at a valuation, and the right of the latter to \my the amount of such valuation to the landlord for rent due from the outgoing tenant, see Stafford v. Gardner, L. K. 7 C. P. 242. The half-year's notice required to determine a yearly tenancy, which com- menced on one of the ordinary feast-days, must by custom be from feast-day to feast-day, irrespective of the number of days intervening; Morgan v. Davies, 3 C. P. D. 260. See also jwst, pp. 552, 556. With respect to contracts commercial, it has been long Usages of established that evidence of a usage of trade applicable to j.o||i^ercial the contract, which the parties making it knew, or may contracts. be reasonably presumed to have known, is admissible for the purpose of importing terms into the contract respecting which the written instrument is silent. The objection that to admit evidence of a usage in the Evidence of case of a contract required by the Statute of Frauds to be g-^^f^ notwith- in writing would be to contravene that statute by intro- standing s. 1 7 ducing *into the contract a term not included in the written piauds. memorandum of it, was disposed of in Huni.frey v. Dale, 7 E. & B. 266, E. B. & E. 1004 ; see Wilson v. Hart, 7 Taunt. 295. It was laid down in former editions of these notes that Distinction the words "usage of trade" are to be understood as referring of ^j-^^^ ^mf to a particular usage to be established bv evidence, and general n -I T ■ n^ p 1 custom of periectly distinct irom that general custom oi merchants, merchants. which is the universal established law of the land, which is to be collected from decisions, legal principles, and analo- gies, not from evidence in pais, and the knowledge of which resides in the breasts of the judges ; see VaUezjo v. 11 heeler, Lofft. 631 ; Edie v. E. I. Co., 1 W. Bl. 299 ; Brandao v. Barnett, 3 C. B. 519, 530 ; Snsc v. Pompe, 8 C. B. N. S. 538 {post, p. 555) ; Crouch v. Credit Fonder, L. R. 8 Q. B. 374. This distinction, indeed, between the general custom of merchants, which is part of the law of the realm, and the particular usages of certain particular businesses, was not, it seems, so clearly marked in former times as it is now : thus we find Buller, J., saying in 1787, 2 T. E. 73, that " within the last thirty years the commercial law of this country has taken a veiy different turn from what it did before. " Before that period we find that, in courts of law, all the evidence in mercantile cases was thrown together ; they were left generally to a jury, and produced no estab- lished principle. From that time, we all know, the great 540 WIGGLESWORTH V. DALLI80N. study has been to find some certain general principles which shall be known to all mankind ; not only to rule the par- ticular case then under consideration, but to serve as a guide for the future." The subject was, however, after full consideration, thus dealt with by Cockburn, C.J., in deliver- ing the judgment of the Exch. Cham, in Goodtcinw Roharts, L. K. 10 Ex. 337, 346 : " It is true that the law merchant is sometimes spoken of as a fixed body of law, forming paii of the common law, and, as it were, coeval with it. But, as a matter of legal history, this view is altogether incorrect. The law merchant thus spoken of with reference to bills of exchange and other negotiable securities, though forming part of the general body of the lex mercatoria, is of com- paratively recent origin. It is neither more nor less than the usages of merchants and traders in the different depart- ments of trade, ratified by the decisions of courts of law, which, upon such usages being proved before them, have adopted them as settled law, with a view to the interests of trade and the public convenience, the court proceeding herein on the well-known principle of law that, vvdth refer- ence to transactions in the different departments of trade, courts of law, in giving effect to the contracts and dealings of the parties, will assume that the latter have dealt with one another on the footing of any custom or usage prevailing generally in the particular department. By this process what before was usage only, unsanctioned by legal decision, has become engrafted upon or incorporated into the common law, and may thus be said to form part of it." The judgment in Goodwin v. Roharts was affirmed, 1 App. Oas. 476, but the meaning of the phrase, " the law mer- chant," was not there specially adverted to. It must not be taken that when a usage has once been proved as a matter of fact, it is to be in all subsequent cases judicially noticed as a matter of law ; see SoxtJiicell V. Bowditch, 1 C. P. D. 374; "but," as Mellish, L. J., said in Ex j^. Poirell, 1 Ch. 1). 506, " tbere is no doubt that a mercantile custom may be so frequently proved in courts of common law, tliat the courts will take judicial notice of it, and it becomes part of the law merchant." Accordingly in Crawcniir v. Salter, 18 Ch. D. 53, and Ex p. Tiirquand, 14 Q. B. D. 636, the C. A. took judicial notice of the custom of hotel-keepers to hire furniture so as to exclude the operation of the reputed ownership clause in the J5ankrnptcy Act. See also the observations of Brett, L. J., WIGGLESWOKTH V. DALLISOX. 54-1 Lohre v. Aitchison, 3 Q. B. D. 558, 5G2, on tlie meaning attached by often proved custom to various clauses in a Lloyd's policy. At what period or by what process the trans- formation takes 2)lace it is not easy precisely to determine. In Alexander v. Vanderzce, L. R. 7 C. P. 530, followed in Ashford v. Bedford, 9 Id. 20, a question was left to the jury as to the mercantile meanirui of " For shipment in June and (or) July" apart from any usage. The former case, however, was commented upon in Bowes v. SJiand, 2 App. Cas. 455 ; see also Birch v. Depeyster, 4 Camp. 385. With regard to particular commercial usages, evidence of E\ iileuce of them is admissible either to ingraft terms into the contract, i^^'""™ercial or to exiilain its terms. sihle. In the first of these two sub-divisions come the cases ( i ) To ingraft concerning the time for which the underwriters' liability in ^^'™''^- respect of the cargo continues after the arrival of the ship ; Xohle V. Kcnnoway, 2 Dougl. 510; see the observations on this case in Oiigier v. Jennings, 1 Camj"). 505, n. ; Moon v. Witney Union, 3 B. N. C. 817 ; see further Botto)nley v. Forbes, 5 B. N. C. 123; Vallance v. Dewar, 1 Camp. 503, et notas ; Cochran v. Bethcrg, 3 Esp. 121; Birch v. Depeyster, 1 Stark. 210, 4 Camp. 385 ; Donaldson, v. Forster, Abb. on Shipp. jtart 3, cap. 1 ; Baker v. Paine, 1 Ves. sen. 459 ; Baitt v. Mitchell, 4 Camp. 146 ; Letliulier's Case, 2 Salk. 443 ; Bowman v. Horsey, 9 M. & Rob. 85 ; Allan V. Sundius, 1 H. & C. 123. And as to evidence of a usage not to pa}^ general average Usages as to on deck cargo, see Miller v. Titherinqton, 6 H. & N. 278; St-uwalave- . . la^e and nor for damage caused by water used to extinguish a fire, fmght. Stewart v. West Lidia Co., L. R. 8 Q. B. 88, 362 (^w.s'^p.559), a usage which since tliis decision has, it is believed, ceased to obtain ; to pay freight according to the measurement at the port of loading. Buckle v. A'/^ooj), L. R. 2 Ex. 125 ; for general steamships unloading in the London Docks to unload their cargoes on the quay, Marzctti v. Smith, C. & E. 6. See also, as to the various rules which have Jlaiiue been imported into the contract by a policy of marine insurance, Lohre v. Aitchison, 3 Q. B. D. 558; Knight v. Cotesworth, C. .1- E. 48. In Bi'own V. Byrne, 3E. & B. 703, a case very elaborateh- argued at the bar, a bill of lading which made the goods deliverable at Liverpool to order or assigns, "he or they paying freight for the said goods five-eighths of a penny i)er pound, with 5 per cent, primage and average accustomed," insurauce. 542 WIGGLESWOPvTH V. DALLISON. " Own manu- facture." Commercial usages hsld admissible. As to indorse- ment of iron warrants. As to paj'ment for shares. Usages a» to factors and brokers. was held not to exclude the operation of a custom in the trade at Ijiverpool, by which three months' discount was deducted from hill of lading freights of goods coming from, amongst others, the port of shipment. In the marginal note, the court are said to have held that this custom controlled the bill of lading ; perhaps it would be better to have said that it was not inconsistent with it. See pf'r Lord Campbell, Hall v. Janson, 4 E. & B. 510; Cuthhert V. Cumming, lOExch. 809, 11 Id. 405 ; and Falknerv. Earle, 32 L. J. Q. B. 124, where Broivn v. Byrne was followed. Evidence has been held admissible of a custom in the iron trade that a manufacturer contracting to supply iron plates must supply them of his own manufacture ; Johnson V. Raijlton, 7 Q. B. D. 438. In Merchant Bank v. Phainix Co., 5 Ch. D. 205, a custom was upheld whereby, in the iron trade, where warrants were given stating on the face of them that they were deliverable to the purchasers or their assigns, by indorsement thereon, it was understood that they were to be free from any vendor's lien for unpaid purchase-money, that they passed from hand to hand h\ indorsement, and conveyed to the holder a title to the goods represented by them. In Field v. Lelean, 6 H. & N. 617, evidence of a usage amongst brokers that on the sale of mining shares the seller is not bound to deliver without contemporaneous pay- ment, was held admissible to show that the defendant was not entitled to have the shares which he had bought from the plaintiff delivered to him before payment, although by the bought and sold notes payment of the price was to be made, half in two, half in four months, and nothing was there said as to the time of delivery. This case is a strong one, but it can be questioned only in the H. L. Upon the question whether it overrules Spartali v. Benecke, 10 C. B. 212, see jjcr Williams, J., in Field v. Lelean. See also Godts v. Hose, 17 C. B. 229. And as to evidence of a usage to pay an agent, see TIeisrh v. Carrinfiton, 5 C. & P. 471 ; for a factor to sell in his own name, see Johnston v. Usborne, 11 A. & E. 549; for a broker employed to buy to make himself personally respon- sible for the price. Cropper v. Cook, L. E. 3 C. P. 194; for a broker employed to buy to become a seller in the transac- tion without his employer's knowledge, Robinson v. Mollet, L. It. 7 IT. Tj. 802 {post, p. 557) ; or to buy without making a l)iii(liiig coiitnirtof jjurchasc on his employer's behalf, Id.; WIGGLESWORTII V. DALLLSON. 543 as to an introducing broker's riglits to subsequent com- Commeicial missions, Allan v. Sundins, 1 H. & C. 123; Gibson y. Crick, admSliwl'^ Id. 142. In Baines v. Eiciug, T.. R. 1 Ex. 329, it was held that the presumption which woukl have arisen of an insurance broker's authority to underwrite generally for the defendant at Liverpool was rebutted by the custom proved to exist at Liverpool, by wJiich an assurance broker's authoiit}^ to underwrite is always, or nearly always, limited to a certain sum. And, therefore, where the defendant's broker had taken a risk in excess of his authority, the defendant was held not liable as principal on the contract, although the plaintiff, the assured, had not been aware that the broker had exceeded his limit. In Humfrey v. Dale, 7 E. & B. 266, E. B. & E. 1004, it Hmnfreyx. seems that not merely a term, but a party, was on oral y^'^^^x^ \^y'^^^^' evidence of a custom added to a contract in writing. The usage as party- action was against I). & Co., brokers, for not accepting ten ^° contract. tons of oil alleged in the declaration to have been sold to them by»the plaintiff, and it was held to be maintainable, first by the Q. B., and afterwards in the Exch. Cham., Martin, B., Willes, J., and Channell, B., dissenting. These were the facts : The plaintiff had employed T. & M., brokers, to sell the oil for him, and one S. employed the defendants to buy it. The brokers met, and the sale was effected, but the only written documents which could be produced as evidence of it were, first, a sale note of the oil, signed by the defendants, which commenced thus, " Sold this day for Messrs. T. d M. to our principals," and ended with the signature, " D. & Co., brokers," and " a quarter per cent, brokerage to D. & Co. ; " secondly, a sale note signed by T. & M., " brokers," which commenced thus, " Sold to D. d Co,, for account of Mr. Humfrey " (the plaintiff), and ended with the clause, " quarter per cent, brokerage to D. & Co., half to us." The first of these notes was sent by the defendants to T. & M., the second by T. & M. to the plaintiff. There was evidence of usage of the particular trade that, whenever a broker buys or sells without disclosing his principal, he is himself personally liable to be looked to as buyer or seller, and that it was in accordance with the usual practice in such cases that T. k M. had not sent the defendants a note of the contract. The defendants did not disclose their principal till an unreasonable time after the contract made, nor until after tender of the oil and after he had become insolvent. 544 WIGGLES WORTH V. D ALLISON. Comuiercial The Q. B. held the evidence of usage to be admissible. adiuissible. I'^iey considered that by necessary implication the defendants Humfvcy v. had in the first note said that they had hong Jit for their ''• })rincipals, and though they said they had sold for T. & M. the plaintiff had shown, as he might, that T. k M. were only his agents. The court then said that " the plaintiff did not seek, by the evidence of usage, to contradict what the tenor of the note primarily imported, namely, that this was a contract which the defendants made as brokers. The evidence indeed is based on this : the usage can have no operation except on the assum];>tion of their having so acted, and of there having been a contract made with their princii^al. But the plaintiff, liy the evidence, seeks to show tliat according to the usage of the trade, and as those con- cerned in the trade understand the words used, they import something more ; namely, that if the buying broker did not disclose the name of his piincipal it might become a con- tract with him if the seller pleased. Supposing this incident had been expressed on the face of the note, there would have been no objection to it, as affecting the validit}' of the contract; for the effect of it would only have been that the sale might be treated b}" the vendor as a sale to the broker, unless he disclosed the name of his jn-incipal ; if he did that, it remained a sale to the principal, assuming, of course, the broker's authority to bind him." The court admitted that in one sense the evidence varied the contract. '" In a certain sense every material incident which is added to a written contract varies it, makes it different from what it appeared to be, and so far is incon- sistent with it. If by the side of the written contract without, you write the same contract iritli the added incident, the two would seem to import different obligations and be different contracts. The truth is, that tlie principle on which the evidence is admissible is that the parties have not set down on paper the whole of their contract in all its terms, but iliose oili/ icJiicJi were necessarjj to be determined in the jKirtictdar ease by S])ecilic agreement, and which of course might vary inlinitely, leaving to im})lication and tacit understanding all those general and varying incidents which a uniform usage would annex, and according to which they must in reason be understood to contract, luiless they expressly exclude them." It is perhaps to l)e regretted that this case was not taken to the 11. 1;. Hut it has been constantly ;icted upon, and WIGGLES WORTH V. DALLISON. 545 seems now firmly established ; though the usage must, in Commercial each case, be proved; SontJiwell v. BowditcJi, 1 C. P. D. 874. admissible. Fleet V. Million, Tj. li. 7 <.^>. B. 126, was a very similar case to Humfrey y. Dale. See also Imperial Bank v. London Docks, 5 Ch. 1). 195 ; and Bacmeister v. Fcnton, C. i^ E. 121 ; and j9os^, p. 55G. The case of Htitchinsou v. Tathani, L. 11. 8 C. P. 482, Hutchinson seems a still stronger one. There the defendant, acting as At'ent liable agent for one L., with due authority to do so, effected a by custom as charter-party, which was expressed in the body of it to be made between the plaintiff who was a ship-owner, and the defendant " as agent to merchants." The defendant signed " as agent to merchants." The court, admitting that but for the custom the defendant would not have been personall}' liable on the charter, held on the authority of the two last cited cases that evidence was admissible of a usage to make him so liable if he did not disclose his principal's name within a reasonable time. See also Pike v. Omjlcij, 18 il B. B. 708. The Sale of Goods Act, 1893, provides (s. 55), "where Sale of Goods any right, dut}', or liability would arise under a contract of 5g'jfc57 \■■^^,l sale by implication of law, it ma}- be negatived or varied . . . c. 71. by usage, if the usage be such as to bind both parties to the contract." In WiUhj V. Stephenson, C. & E. 3, it was endeavoured Stock Ex- to prove a custom on the London Stock Exchange that a ^''^^"Se ^-ases. broker was personally liable to his employer on a contract for the sale of shares where the name of the princijial was not disclosed, but the ]\\vy were unable to agree as to the existence of such a custom. Questions have arisen uj^on the right of members of the Stock Exchange to rely upon its usages to relieve themselves of liability upon contracts made there. Tlie courts have upheld the custom of the Stock Excliange, whereby a jobber, who has bought shares from one of the public through a broker on the Stock Excliange, is relieved from liability to take the shares and to indemnify the vendor against calls, if he passes the name and address of a nominee able and willing to take the shares, and such nominee is not objected to within ten days after the name was passed ; Grissell v. (rrissell v. Bristoice, L. li. 4 C. P. 3G, where the Exch. Cham, reversed ^'^^°'"'- the decision below ; Coles v. Bristoice, 4 Ch. 3 ; and the custom has been held to relieve the jobber, where the names, though given bond fide by the jobber, were those s.L.c. — vu:.. I. 35 WIGGLESWORTH V. DALLISON. (2) Com- mercial usages to explain contracts. merely of men of straw put forward to shield the real buyer ; Maxted v. Paine (No. 2), L. R. 6 Ex. 132, diss. Cleasby, B., and Lush, J. But it does not relieve the jobber, if he gives the name of a person who has not authorized its use ; Maxted v. Paine (No. 1), L. R. 4 Ex. 81 ; or who is under legal disability to take the shares : e.g., an infant; Nickalls V. Merry, L. Pi. 7 H. L. 530. The effect of the custom seems to be that a contract arises between the vendor and the nominee, whereby the latter is bound to indemnify the former against calls ; Bowring v. Shepherd, L. R. 6 Q. B. 309 ; but see -per Blackburn, J., in Maxted v. Paine (No. 2), supra ; and if the nominee is a man of straw with a real buyer behind him, the vendor is entitled, at any rate in equity, to be indemnified by the real buyer ; Castellan V. Hohson, 10 Eq. 47. It may be observed that in both Grissell v. Bristoice and Boivring v. Shepherd the transfers had in fact been accepted, and the price of the shares been paid, by the transferees' brokers, but the transfers had not been executed by the transferees. A person who employs a broker to sell shares on the Stock Exchange is bound to indemnif}^ the broker against any liability he may incur, in consequence of carrying out his instructions, under any rules of the Stock Exchange, provided they are reasonable ; Smith v. Fieynolds, 66 L. T. 808. In North v. Bassett, (1892) 1 Q. B. 333, it was proved that, by the usage of the building trade, the builder whose tender was accepted was liable to pay the quantit}^ surveyor his fees, and the surveyor was held to be entitled to sue the builder, who had received payment of the first instalment under the building contract, to recover the amount of his fees. The second subdivision of cases in which evidence of commercial usages is receivable consists of cases where it is admitted to explain the terms of a contract : on the ground that by the custom of the trade the terms bear a peculiar meaning. Thus in UJide v. Walters, 3 Camp. 16, evidence wns admitted to show that the Gulf of Finland, though not so treated by geographers, is considered by mercantile men part of the J^altic ; and in Iliiteltinson v. Boivker, 5 M. il- W. 535, to show that good barley and Jine barley signified in mer(.'a)itile usage different things. See further 7^'/^('r^907i V. Clarke, 1 Bing. 445; Moxon \ . Atkins , 3 Camp. 200; Cochran \. lletherg, 3 Esp. 121 ; Chaurand WIGGLESWORTH V. DALLISON. 547 V. Angerstcin, Peake, Gl ; liuld v. Jhiijucr, 1 ]M. & W. 343 ; ^''ommercial Powell V. Horton, 2 B, N. C. GG8. a.rnTis.sible. As to evidence, that "sold 18 pockets Kent hops at lOO-s." "At lOOs." means in the hop trade 100s. per cwt., see Spiccr v. Cooper, 1 Q. B. 424; that "in turn to deliver," in a charter-party " In turn to to Algiers, means at a particular spot in the port for a par- '' '^''''' ticular purpose, Robertson v. Jackson, 2 C B. 412 ; as to the term " to load in regular turn," see Hudson \. Clement son, "To load in 18 Id. 213 ; Lauson y. Btirness, 1 H. & C. 39G ; Leideniann ^^"" '^^ V. Schultz, 14 C. B. 38; King x. Hinde, 12 L. R. Ir. 113; of the meaning of "Liverpool " in a charter-party as a port "Liverpool." of arrival, Norden Steam Co. v. Denipseij, 1 G. P. D. G54 ; of "no St. Lawrence" in a policy of insurance, Birrell v. " Xo St. Dryer, 9 App. Cas. 345; of "running days" in a charter- ^|'\ party, Nielsen v. Wait, 16 Q. B. D. 67 ;' that "bale" in Iys!"™'° the Gambler trade means a compressed package, weighing "Dale." on the average 2 cwt., Gorriicn v. Perrin, 2 C B. N. S. 681; that oil is "wet" if it contains any water, however "Wet oil." little, Warde v. Stewart, 1 Id. 88 ; to show the meaning of "about" so many quarters, in a delivery order, JMoorex. "About." Campbell, 10 Excli. 323 ; and " about " so many barrels in a charter-party, Aleock v. Leeuw, C. el'E. 98; to explain the sense in which the word "London" was employed, "London." Mallan Y. Mai/, 13 M. & W. 511; that a "full and com- "Full cargo." plete " cargo of sugar and molasses means at Trinidad a cargo packed in the ordinary way there, Cuthhert v. Cumming, 10 Exch. 809, 11 /(/. 405 ; the meaning of "the " Next two next two months" in the iron trade, Bissell v. Beard, 28 L. T. 740; the meaning of "statuary" in the carrying trade, Sutton v. Ciceri, 15 App. Cas. 144. A question has sometimes been raised as to how far it Whether is necessar}', in order to affect a person with the usage of "g^^nown to a trade or market, that he should be actually cognisant party to be j> •, ' charged. OI it. ^ It was said in Kireliner v. Venns, 12 Moo. P. C. 361, Kirchnerv. that, when evidence of the usage of a particular place is admitted to add to or in any manner to affect the construction of a written contract, it is only on the ground that the parties wJto made the contract are both cognisant of the usage, and must be presumed to have made their agreement with reference to it, and that no such presumption can arise when one of the parties is ignorant of it. And that is adopted in the marginal note as the statement of a general rule of law. It seems, however, that the proposition must 35 2 Venus. 548 WIGGLESWORTH V. DALLISON. Whether be restrained to subject matters like that before the court, be known to iiamel}^ the condition of the holder for value of a negotiable party to be instrument showing upon the face of it a clear right of the ° ' ordinary and usual kind unaffected b}' the custom ; and the subsequent part of the judgment dwelt upon the special circumstances as being important. In Kirrliner v. Venus, the indorsees, resident in Sydney, of bills of lading, made in Liverpool, for the carriage of goods from Liverpool to Sydney by the " Countess of Elgin," brought an action of trover against the master of the ship for having refused to deliver the goods at S3'dne3" unless paid freight, and they were held not to be bound by an alleged custom in Liver- pool, of which they were ignorant, that, though by the terms of the bills the freight was payable in Liverpool at a certain time after sailing, still the ship-owner, if it was not paid, had a lien for it at the port of discharge ; see some remarks on this case in Buckle v. Knoop, L. E. 2 Ex. 125, jper Kelly, C. B. ; and see Hathesing v. Lainrj, 17 Eq. 92 ; and Nordeu Steam Co. v. Dempsey, 1 C. P. D. 662, per Brett, J. In Sutton V. Tatham, 10 A. & E. 27, it was laid down that a person, who employs a broker on the Stock Exchange, impliedly gives him authority to act in accordance with the rules there established, though he is himself ignorant of A person ninst them. And in Bayliffe v. Butter worth, 1 Exch. 425, Sutton be taken to ^,^ Tatham was expressly approved of bv Parke and Bolfe, deal according l j l i . to the cusioin BB. ; and Alderson, B., laid down the law generally, that of the market, u ^ person who deals in a particular market must be taken to deal according to the custom of that market, and he who directs another to make a contract at a particular place must be taken as intending that the contract may be made according to the usage of that place." Parke, B., there distinguished Gahay v. Lloyd, 3 B. & C. 793, und Bartlett v. Pentland, 10 Id. 760, where the usage of Lloyd's Coffee- house was held not to be binding on persons who were not shown to have been cognisant of, or to have assented to it, on the ground that in Bayliffe v. Butterworth, the question was as to the autJwrity which the broker received ; see, however, as to this distinction, _/;(T Williams, J., Sweeting V. Pearce, 7 C. B. N. S. 482; 9 Id. 534. See also Smith V. Rrynolds, 66 L. T. 808. Sii-cdiii I \. J 11 Sweeting v. Pearce, the principal was held not bound ^''^^^'''^'- l,y .^ usage of liloyd's of which he was ignorant, but princi- pally on the ground that Lloyd's is a mere private place of business, and not a general inarket so as to come within WIGGLKSWORTH V. DALLISON. 549 the above rule : see per Bovill, C.-T., Grissell v. Bristoive, Whether iisa"e must L. R. 3 C. P. 127. But the court seem to have gone also i,e known to upon the p-ound that the usage souglit to be estabhshed l'^''^.^^ ^" ^*^ would, if not known to tlie principal, be an unreasonable one, (see jper Bramwell, B., in Cam. Scacc.,) following in this respect the decision in Scott v. Ifving, 1 B. & Ad. 612, that a usage, which would have the effect of making the broker and not the underwriter the debtor of the assured for a loss on a policy of insurance, can only bind those who are acquainted with it. See also j^c^' Fry, J., Pearson v. Scott, 9 Ch. D. 198, where an alleged custom of the Stock Exchange was held bad, whereby it was contended that a broker emplo^'ed by a solicitor whom he knew to be an agent could settle in account with such solicitor (otherwise than by payment) behind the back of the principal. As will be presently stated more fully, a custom if unreasonable is not binding ; and the knowledge of the person to be bound may be an important element in deciding whether a custom is reasonable or not; see p^rBowen, L.J., Perry y. Barnett, 15 Q. B. D. 388, 397. In Robinson v. MoUett, L. Ft. 7 H. L. 836, 838, Lord Qualification Chelmsford stated the rule to be that, "if a person employs "jioMnsm v.^^ a broker to transact for him upon a market with the usages Mollctt. of which the principal is unacquainted, he gives authority to the broker to make contracts upon the footing of such usages, provided they are such as regulate the mode of per- forming the contracts, and do not change their intrinsic character." In that case he '''hesitated to say that the usnge in question would not apply in the case of persons knowing of its existence, and employing a broker to act for them in the market where it prevailed. But the usage was of such a peculiar character, and so completely at variance with the relations between the parties, converting a broker employed to buy into a principal selling for himself, and thereby giving him an interest wholly opposed to his duty, that he thought no person who was ignorant of such an usage could be held to have agreed to submit to its con- dition, merely by employing the services of a broker, to whom the usage was known, to perform the ordinary and accustomed duties belonging to such employment." Subject to the above qualification, and to the custom not being unreasonable or otherwise objectionable in law, the rule above cited and laid down in Sutton v. Tatham, and Baylife v. Butterworth, has been constantly adopted and 550 WIGGLESWOETH V. DALLISON. Usage as evi- dence of what was reason- able. Cases not falling within the head of mercantile contracts. " 1000 rab- bits." Usage for .servants to have holidays. Actress to lie paid only when thi-atn; open. followed. See Stewart y.Aherdein, 4 M. & W. 211 ; Taylor V. Stray, 2 C. B. N. S. 175 ; Stray v. Russell, 1 E. & E. 888, approved in London Founders' Assoc, v. Clarice, 20 Q. B. D. 576 ; Graves v. Legg, 2 H. & N. 216 ; Lloijd v. Guibert, 35 L. J. Q. B. 74 ;' Grissell v. Bristoice, L. K. 4 C. P. 36 ; Duncan v. HUl, L. R. 8 Ex. 242. In the latter case the plaintiffs, stockbrokers on the London Stock Ex- change, had been employed by the defendant, a non-member, to carry over certain shares from one settling day to a later one. In the interval between the two days the i)laintiffs became defaulters, w^herenpon, according to the rules of the Stock Exchange, their transactions were closed, and their accounts, including that of the defendant, were made up at the prices current on that day, without anj" com- munication with the defendant. It was held, in the Exch. Cham., reversing the decision below, that the defendant was not liable to indemnify the plaintiffs for the "difference" or loss caused by the closing of his account, which had been forced on by the rules of the Stock Exchange, inasmuch as this had been caused by the plaintiffs' own default. See Hartas v. Bihhons, 22 Q. B.D. 254 ; Davis v. Howard, 24 Id. 691. In Stewart v. Cauty, 8 M. & W. 160, a rule of the Liver- pool Stock Exchange was admitted in evidence between parties not members of it, upon a question what was a reasonable time for the completion of a sale of shares made at Liverpool through the agency of brokers. To come to cases not falling under the head of mercantile contracts, evidence has been received to show that by the custom of a particular district the words " 1000 rabbits " meant 1200 rabbits; Smith y. Wilson, 3 B. & Ad. 728; see Clayton v. Gregson, 5 A. & E. 302. So in R. v. Stoke- upon-Trcnt, 5 Q. B. 303, an agreement in writing "to serve from 11 Nov., 1815, to 11 Nov., 1817," "to lose no time on our own account, to do our w^ork well, and behave our- selves in every respect as good servants," was considered capable of ex})lanation b}' a usage in the particular trade for servants, under similar contracts, to have certain holi- days and Sundays to themselves ; see Phillips v. Inncs, 4 CI. & F. 234. In Grant v. Maddox, 15 M. & W. 737, an Mgreement by the manager of a theatre to engage an actress tor "three years, at a siilary of 5/., 6/., and 7/. per week in those years respectively," was explained by the usage of tiie theatrical profession to mean that the actress was to be paid onl}' whilst the theatre was ()[)c'ii for i)erl'oruiance. WIGGLESWORTH V. D ALLISON. 551 In Parker v. Ibhetson, 4 C. B. N. S. 846, a custom that the Month's no- yearly liiiiiig of a clerk is determinable by a month's notice at any time was held not inconsistent with a provision in the agreeuient that at the end of the year the employer, if satisfied with the amomit of business done, would make an addition of 30/. to the stipulated salary. So, again, in EvcDts V. Pratt, 3 jNI. & Gr. 759, in a memorandum as to a race, the run described was "four miles across a country," " Four miles and evidence was admitted to show that in sporting jDarlance coimtrv " the meaning of those words is straight across over all obstructions without liberty to go through open gates. So Lessor to pre- in case of an agreement for a lease, it is implied from pal-''t,j|^^i'(!a^se° custom that the lessor should prepare and the lessee pay for it; Grissell v. liohijison, 3 13. N. C. 11; see Suiit]i \. Clcfui, 27 L. J. Ex. 300 ; although in general, upon a sale of l")roperty, the vendee who is to bear the expense of the con- veyance ought to prepare it ; Price v. Williams, 1 M. & W. 6 ; Poole V. Hill, 6 LI. 835 ; Stephens v. Be Medina, 4 Q. B. 422; see, however. Doe v. Stibrell, 8 A. & E. 645. As to Usage to pay the liability by usage of a man about to marry to pay his ^^^g^t" ^"^ ^' Avife's solicitor for preparing her marriage settlement, see Helps V. Clayton, 17 C. B. N. S. 553. In .V. Statf'ordshire R. Co. v. Peek, E. B. .^ E. 986, the "Nothi- majority of the court held that the terms in a letter to ^^^^'^ ' carriers from their customer, "Please send the marbles not insm-ed," Avere to be read "according to the under- standing of language between carriers and their customers," and construed as a request to carry the marbles at the customer's risk. But this decision turned upon the con- struction of a statute, and was reversed, 10 H. L. C. 473. As to a usage of trade to allow goods to remain with Usafje pre- hotel-keepers on hire preventing such goods from being renting re- n,- -> n 1 T IT • • 1 n 1 t^ i puted owuer- aiiected by the order and disposition clause ot tlie Bank- ship as to ruptcyAct; see Pie Blanshard, 8 Ch. I). 601; Cmiceour y. f^i"iiture. Salter, 18 Id. 53 ; Ex p. Brooks, 23 Id. 261 ; Ex p. Tiir- quand, 14 Q. B. I). 636; lie Chapman, 1 Manson, 415 ; see notes to Hor)i v. Baker, post, vol. ii. Whilst, however, as we have seen, evidence of custom has Cases in which been very largely admitted, there are numerous cases in which custom in°ad- such evidence is inadmissible, and these will now be dealt with, missihle. Thus the admissibility of evidence of custom, to explain Where words , 1 • (• 1*1- . j_ 1 i • have statutory the meaning oi a word used m any contract whatever, is meaninc^ cus- subject to this qualification, viz., that, if a statute has given ^om cannot a definite meaning to any particular word denoting weight, 552 WIGGLESWORTH V. DALLISON. Usages held inndniissible. IHstiiiction in tliis respect as to nieaiiiiig of feast days in leases by deed. Q)'rrrc as to (iistinctioi! between deeds and contriiets i;ot nnderseal. .Suggestion tliat evidcnc only ndiiiin- silile as to verba! eon- trncts. measure, or number, it must be understood to be used with that meaning, and no evidence of custom is admissible to attribute any other to it ; per curiam, Smith v. Wilson, 3 B. & Ad. 728 ; see Wing v. Erie, Cro. Eliz. 267 ; Nolle v. Durrell, 3 T. R. 271 ; Hockinx. Cooke, 4 Id. 314 ; >S'^. Cross V. De Walden, 6 Id. 338. In Doex. Lea, 11 East, 312, it was hehl that a lease by deed of lands since the new st3de, to hold from the feast of St. Michael, must mean Neiv Michaelmas, and could not be shown b}' parol evidence to refer to Old Michaelmas. In Farley v. Wood, 1 Esp. 198, Lord Kenyon had admitted parolevidence of the custom of the country to explain the meaning of the word Michaelmas : and the court, in Doe v. Lea, on hearing that case cited, asked whether the holding there was by deed, which it does not appear to have been ; and it may he added, that possibly it was not even in writing. In Doe V. Benson, 4 B. & Aid. 588, evidence of the custom of the country was held admissible to show that a letting by parol from Lady Day meant from Old Lady Day. The court referred to Furlcy v. Wood, and distinguished it from Doe v. Lea, on the ground that the letting there was by deed, " which," said Holroyd, J., "is a solemn instrument; and tlierefore parol evidence was inadmissible to explain the expression Lad}^ Day there used, even supposing that it was equivocal." It is perhaps not easy to conceive a distinction, founded on principle, between the admissibility of evidence to ex- plain terms used in a deed, and terms used in a written contract not under seal : for though, when the terms of a deed are ascertained and understood, the doctrine of estoppel gives them a more conclusive effect than those of an unsealed instrument; yet the rule, that parol evidence shall not be admitted to vary the written terms of a contract, seems to apply as strongly to an unsealed contract as to a sealed one ; while, on the other hand, it appears from TVigglesworth v. J>allison, without going further, that, in cases where parol evidence is in other respects admissible, the fact tbjit the instrument is under seal forms no insuperable ()l)sta(;le to its reception. Sec also Abbott v. Bates, 43 L. .1. C. r. 150. Nor docs it seem necessary, in order to prevent contra- diction between l)oe v. Lea and Doex. Benson, and Furlcy V. Wood, to establish any such distinction between deeds mill otlicr wiilten instruments; for in Doe x. Benson, the WIGGLES WORTH V. D ALLISON. 553 letting seems not to have been in writinfj, so that the .^^s^ges held 1 ■ • 1 -1 • • (• 1-1 r 11 inadiiussihle. objection to tlie admission oi parol evidence, lounded upon the nature of a written instrument, did not arise. In Furlci/ V. IFoor/ the letting was perlmps also by mere parol ; and though the evidence was, it is true, offered to explain the notice to quit, still it may be urged, that when the holding was once settled to commence from Old Michael- mas, the notice to quit, which probably contained the words " at the expiration of your term," or something eJHsdem f/eiieris, must be held to have had express reference to, and to be explained by it. We must not therefore, it is sub- mitted, too liastily infer that parol evidence of custom would be receivable to explain a word of time used in a lease in writing, but not under seal. See, however, Rogers v. Hvll Dock Co., 34 L. J. Ch. 165, where the evidence was admitted to explain such an agreement. Doe V. Lea was acted upon in Siitit]i v. Walton, 8 Bing. 238, . where the defendant avowed for rent payable "nt Martinmas, viz., Nov. 23rd ; " the plaintiff pleaded non tenait ; and a holding from Old Martinmas having been proved, the court thought that the words after the videlicet must be rejected, as inconsistent with the term Martinmas, which they thought themselves bound by statute to interpret Nov. 11th ; that no evidence was admissible to explain the record ; and that there was, therefore, a fatal variance between it and the evidence ; see Hockin v. Cooke, 4 T. E. 314 ; St. Cross v. De Walden, 6 Id. 338 ; Kearnej) v. Kimj, 2 B. & Aid. 301 ; Sprowle v. Legfie, 1 B. ,^ C. 16 ; Hoe/g v. Berrington, 2 F. & F. 246. Custom cannot alter or control the law. In Mei/er v. Custom can- Drcsser, 16 C. B. N. S. 646, which was an action for freight, ^^^j, |j^^„._ the defendant sought by evidence of usage, alleged to be universal in the mercantile world, to establish a right to deduct from the amount of freight due for goods delivered the value of certain other goods which ought to have been but were not delivered by the plaintiff, but the court held that " a universal usage which is not according to law cannot be set up to control the law ; " see also Goodwin v. Boharts, L. li. 10 Ex. 337, 357 ; and the judgment of Blackburn, J., in Crouch v. Credit Fonder, L. R. 8 Q. B. 386, though the latter is to some extent qualified by that of the Exch. Cham, in Goodwin v. Boharts, supra. In Crouch V. Credit Fonder, supra, the court pointed out that "where the incident" (sought to be introduced b}' usage 554 WIGGLESWORTH V. DALLISON. Usages held inadmissible. Custom to lUsregard Leeman's Act. Evidence of usage not ad- missible to vary or con- tradict written instrument. j;iaclcdt V. lldijal Ex- chnn'je. into a contract) "is of such a nature that the parties are not themselves competent to introduce it by express stipu- lation," {e.g., to make a modern instrument negotiable), "no such incident can be annexed bj^ the tacit stipulation arising from usage." See further, Neilson v. James, 9 Q. B. D. 546 and Perry v. Bariiett, 15 Id. 888, which show that a custom of the Stock Exchange to disregard Leeman's Act, 30 & 31 Vict. c. 29, s. 1, is not binding on an outsider ; unless, indeed, he has contracted with knowledge of it; Sei/niour v. Bridiiyable, such a transaction is equivalent to a payment of the lesser (lel»t, followed by a repaj'ment of the amount iu li((ui(liition of so much of the larger debt; and so it operates to save tlie balance of the larger debt from the elfect of the statute; A.^lihg v. James, 11 M. & W. 542, jxr Alderson, B.; WHITCOMB V. WHITING. 567 ScJioley V. Watton, 12 Id. 510, per Parke, B. ; see Roberts V. SJiaw, 4 B. & S. 44, j^er Blackburn, J. The delivery of a bill, note, or cheque, as a part payiii(3iit I'-iyment iiy of the debt, is a sufficient payment to oust the statute; and chcqiu. its subsequent dishonour is immaterial ; for " where a bill of exchange has once been so delivered, in payment on account of the debt, as to raise an implication of a promise to pay the balance, the statute is answered as /ro;/i the tunc of fiiicli delivery, whatever afterwards takes place on the bill ; " Tiirney v. Dodwell, 3 E. & B. 136; see Irviiuj v. Veilcli, 3 M. & W. 90. A payment to the creditor's agent is a sufficient payment ; To whom pay Evans v. Davies, 4 A. & E. 840 ; Hart v. Stephens, 6 Q. B. IHJae.''''''^ ^' 937 ; and a payment to a third party seems to be sufficient, if made at the creditor's request and under an agreement that it shall go in part liquidation of the debt; Worthin(iton V. Grimsditch, 7 Q. B. 479, where Lord Denman said that " by agreement between the parties the payment by the debtor of money owing by the creditor to a third person may be a mode of payment either of interest, or, in part, of the principal to the creditor ; and such agreement, like any other, may be proved by implication, or course of dealing, or ratification, as well as by express and previous direction." But a payment to a person having no authority to receive payment is not sufficient, because it is no payment to the creditor, and no promise to tlie creditor to pay the balance can be inferred from it ; Stamford Bank v. S)nitli, (1892) 1 Q. B. 765. In Badger v. Arcli, 10 Exch. 333, the maintenance of a child, under an agreement that such maintenance should be taken in satisfaction of interest, was held {dnhitante Parke, B.) to be a sufficient payment to the creditor. In that case, ^Vliat is a Martin, B., said that " any facts which would support a plea of payment of interest in the event of an action being brought to recover it, would be a payment sufficient to bar the statute ; " and this test was adopted in Maber v. Maber, L. K. 2 Ex. 153, a case in which the money did not actually pass, because the creditor made a gift of the money to the debtor, as he was in the act of paying it; see also Amos v. Smith, 1 H. & C. 238. It seems that a payment may be sufficient if made to a Payment to a person who is in fact acting as the creditor's administrator, as adminis- ° though his title to act is defective, such pavment enuring trator without . title. for the benefit of the estate ; Clark v. Hooper, 10 Bing. WHITCOMB V. WHITING. 480 ; Bodgcr v. Arch, 10 Excb. 333; see Stamford Bank v. Smith, (1892) 1 Q. B. 765, where Clark v. Hooper was considered. As to a paj'uient made to a prior holder of a bill or note, while still holder, qucerc ; see Criijps v. Davis, 12 M. & W. 159 ; Gale v. Capern, 1 A. & E. 104, per Patteson, J. A payment made b}' a person who is not the debtor's agent to make it cannot save the statute, because such pay- ment can raise no promise by the debtor to pay the balance; see Neve v. Hollands, 18 Q. B. 2G2, where the wife's payments, made without her husband's authorit}^ were held not to keep the debt alive as against him ; Linsell v. Bonsor, 2 B. N. C. 241, where the debtor's agent paid, as a part payment, a sum given to him for the purpose of discharging the whole claim. See also Newhould v. Smith, 29 Ch. D. 882, 83 Id. 127, 14 App. Cas. 423 ; Davies v. Edwards, 7 Exch.22; Thome v. Heard, (1893) 3 Ch. 530, (1894) 1 Ch. 599, W. N. 1895, p. 109. Payment by the devisee for life of interest upon a simple contract debt of the testator keeps alive the creditor's right to obtain payment out of the real estate of the testator as against the remainderman ; Re Hollmfjsliead, 37 Ch. D. 651. AVhere parish officers borrowed money, promissory note to secure it, signed A. B. wardens, C. D. &c., overseers, " or others being," it was held that this form of signature was evidence of an authority to their successors to pay on account, so as to keep the note alive ; Jones v. Hurihes, 5 Excb, 104. During the partnership a partner has, prima facie, authority to make payments on account of the firm's debts on the firm's behalf, so as to keep them alive as against his co- partners ; Goodwin v. Barton, 41 L. T. 91 ; but after the dissolution of the partnershii) he has, prima facie, no such authority ; Watson v. Woodman, 20 Eq. 721. Such authorit}', however, may be given to him by an express or implied agreement between the partners at the dissolution ; Tucker v. Tucker, (1894) 1 Ch. 724. In Willis v. Newham, 3 Y. k J. 518, the Court of Excb. held lliat a verl>!il acknowledgment of part payment of a debt was not sulficient proof thereof by reason of Lord 'J'ciitci'den's Act, s. 1 ; the imi)ort whereof they construed to l»c tlnit ill no case sliould a mere verbal acknowledgment tiike a case out (jf the Statute of Jjimitations, whether that acknowledgment were of the existence of the debt or of the lad ol' piiyiiient, 'I'lie autliority of ]Villis v. NewJiam was, and gave a &c., church- for the time WHITCOMB V. WHITING. 569 however, repeatedly questioned, although it was acted upon in Bayley v. Asltton, 12 A. & K. 41)3, Mafihee v. O'Xi'il, 7 M. & W. 531, Easticood v. Sacile, 9 Id. 615, and Clark v. Alexander, 8 Scott, N. K. 147 ; and the case was at length JVilUsv. overruled in (Jlcace v. Jones, b hxcli. 573, where the deniana overruled. was upon a promissory note for 350/. and interest, and it was held that an unsigned entry, made by the debtor in her account book, stating a payment by her of interest on the note within six years, was evidence to take the case out of the Statute of Limitations ; see also Edwards v. Janes, 1 K. & J. 534. It was held, even before Cleave v. Jones, that evidence of How appro- a payment on account of the debt might be corrohorated by tie^proved"^^ evidence of subsequent oral admissions by the debtor that he had made the payment on that account; Bevan v. GetJiuig, 3 Q. B. 740; and that, evidence of a payment by the debtor having been given, the fact that the debtor appropriated the payment to the debt sought to be taken out of the Statute of Limitations might be proved hy evidence of oral declara- tions made by the debtor, whether made at the time of the payment, or at some other previous or subsequent time ; Waters v. Tompkhis, 2 C. M. & K. 726 ; see Trenthain v. Deverill, 3 B. N. C. 397. As to entries against interest made by a deceased person, see notes to Higham v. llidrja-ay, 2)ost, vol. ii. Lord Tenterden's Act, s. 3, enacts that no memorandum Iiuloisements of any payment made, by or on behalf of the payee, on any oJ^ con tracts ^^ bill, note, or other writing {i.e. "writing constituting the 9 Geo. 4, contract;" Bradley v. James, 22 L. J. C. P. 193, 2'^'' ^' ' ^' Cresswell, J.; 13 C. B. 822, per Maule, J.), "shall be deemed sufficient proof of payment to take the case " out of the Statute of Limitations. This section renders such a memorandum insufficient b}^ itself to prove a payment, but does not render it wholly inadmissible ; Bradley v. James, supra. It is perhaps convenient to refer shortly in this place to What is a the question, what is a sufficient written acknowledgment written to save the statute, under section 1 of Lord Tenterden's ackuowledg Act. The principles are thus summed up b3"Mellish, L. J., Fic River Steamer Co., MitcheWs Claim, 6 Ch. 822, 828 : — ^' There must be one of these three things to take the case out of the statute. Either there must be an acknowledg- ment of the debt from which a promise to pay is to be implied, or secondly, there must be an unconditional promise WHITCOMB V. WHITIKG. to pay the debt, or thirdly, there must be a conditional promise to pay the debt and evidence that the condition has been perfoi'med." A long train of authorities, commencing with Tanner v. Smart, 6 B. & C. 603, have conclusively settled that an absolute acknowledgment of the debt by itself is sufticient, because an unconditional promise to pa}' the debt may be inferred from it ; Sheet v. Lindsay, 2 Ex. D. 314; Green v. Humphreijs, 26 Ch. D. 474. These are the recognised principles. But the question, whether particular written expressions amounted to an absolute acknowledgment or an unconditional promise, has naturally produced much litigation, and has sometimes caused a remarkable diversity of judicial opinion ; see the cases collected in Chasemorey. Turner, L. R. 10 Q. B. 500; Qiiinceyy. Sharpe, 1 Ex. D. 72; Meyerhoffy. Froehlich, 4 C. P. D. 63 ; Re Bethell, 34 Ch. D. 561 ; Firth v. Slingshy, 58 L. T. 481 ; Curwen v. Milhurn, 42 Ch. D. 424. In the first of these cases, the creditor relied on a letter from the debtor, in which he wrote : " The old account between us which has been standing over so long has not escaped our memor}^ and as soon as we can get our affairs arranged, we will see you are paid. Perhaps in the meantime you will let 3-our clerk send me an account of how it stands." At the trial, Martin, B., held that the letter was sufficient to take the case out of the statute. In the Q. B. it was held to be insufficient by Blackburn and Archibald, JJ., Mellor, J., dissenting ; but in the Exch. Cham, this decision was reversed (Lord Coleridge diss.) by Cleasb}', Pollock, and Amphlett, BB., and Grove and Denman, JJ. It has long been settled that the writing relied on need not specify the amount of the debt ; that may be proved by parol ; see Bird V. Gammon, 3 B. N. C. 888 ; Waller v. Lacy, 1 M. eeen extremely well argu(Ml on botli sides. On I'^riday, 27tli Jnniiury, 1775, it was very ably argued by MOSTYN V. FABRTGAS. 583 Mr. Serjeant Ghpni for the plaintiff, and by Mr. Serjeant IValker for the defendant. Lord Mansfield. — This is an action broii^lit l)y the plaintiff against the defendant, for an assault and false imprisonment ; and, part of the complaint made being for banishing him from the island of Minorca to Carthagena in Spain, it was necessary for the plaintiff, in his declaration, to take notice of the real place where the cause of action arose : therefore, he has stated it to be in Minorca ; with a videlicet at London, in the parish of St. Mary-le-Bow, in the ward of Cheap. Had it not been for that particular requisite, he might have stated it to have been in the county of Middlesex. To this declaration tlie defendant put in two pleas. First, "not guilty"; secondl}-, that he was Governor of Minorca, by letters patent from the crown ; that the plaintiff was raising a sedition and mutiny ; and that, in conse- quence of such sedition and mutiny, he did imprison him and send him out of the island ; which, as governor, being invested with all the privileges, rights, &c. of governor, he alleges he had a right to do. To this plea the plaintiff does not demur, nor does he deny that it would be a justification in case it were true: but he denies the truth of the fact : and puts in issue whether the fact of the plea is true. The plea avers that the assault for which the action was brought arose in the island of Minorca, out of the realm of England, and nowhere else. To this the plaintiff has made no new assignment, and therefore by his replication he admits the locality of the cause of action. Thus it stood on the pleadings. At the trial the plaintiff went into the evidence of his case, and the defendant into evidence of his ; but, on behalf of the defendant, evidence different from the facts alleged in his plea of justification was given, to show that the Arraval of St. Phillip's, where the injury complained of was done, was not within either of the four precincts, but is a district of itself, more immediately under the power of the governor; and that no judge of the island can exercise jurisdiction there, without a special a})pointment from him. Upon the facts of the case, the judge left it to the jury, who found a verdict for the plaintiff, with 3,000/. damages. The defendant has tendered a bill of exceptions, upon which bill of exceptions the cause comes before us : and the great difficulty 584 MOSTYN V. FA BRIG AS (JUDGBIENT.) I have had upon both the arguments has been to be able clearly to comprehend •what the question is, which is meant seriously to be brought before the court. If I understand the counsel for Governor Mostyn right, what they say is this : The plea of not guilty is totally immaterial ; and so is the plea of justification : because upon the plaintiff's own showing it appears, 1st, that the cause of action arose in Minorca, out of the realm ; 2ndly, that the defendant was Governor of Minorca, and by virtue of such his authority imprisoned the plaintiff'. From thence it is argued that the judge who tried the cause ought to have refused any evidence whatsoever, and have directed the jury to find for the defendant: and three reasons have been assigned. One, insisted upon in the former argument, was that the plaintiff, being a Minorquin, is incapacitated from bringing an action in the King's courts in England. To dispose of that objection at once, I shall only say it is wisely abandoned to-day ; for it is impossible there ever could exist a doubt, but that a subject born in Minorca has as good a right to appeal to the King's courts of justice as one who is born within the sound of Bow bell ; and the objection made in this case, of its not being stated on the record that the plaintiff was born since the treaty of Utrecht, makes no differ- ence. The two other grounds are, 1st, That the defendant, being Governor of Minorca, is answerable for no injury whatsoever done by him in that capacity: 2ndly, That the injury being done at Minorca, out of the realm, is not cognisable by the King's courts in England, As to the first, nothing is so clear as that, to an action of this kind, the defendant, if he has any justification, must plead it: and there is nothing more clear than tliat, if the court has not a general jurisdiction of the subject-matter, he must plead to the jurisdiction, and cannot take advantage of it upon the general issue. Therefore, by the law of England, if an action be brought against a judge of record for an act done by him in his judicial capacity, he may plead that he did it as judge of record, and that will be a complete justification. So in this case, if the injury com- plained of had been done by the defendant as a judge, though it arose in a foreign country, where the technical distinction of a MOSTVN V. FABRIGAS. 585 court of record does not exist, yet sitting as a judge in a court of justice, subject to a superior review, he would be within the reason of the rule which the law of England says shall be a justification; but then it must be pleaded (/). Here no such matter is pleaded, nor is it even in evidence that he sat as judge of a court of justice. Therefore I lay out of the case everything relative to the Arraval of St. Phillip's. The first point, then, upon this ground, is the sacredness of the defendant's person as governor. If it were true that the law makes him that sacred character, he must plead it, and set forth his commission as special matter of justification; because lyrimd facie the court has jurisdiction. But I will not rest the answer upon that only. It has been insisted by way of distinction, that, supposing an action will lie for an injury of this kind committed by one individual against another, in a country beyond the seas, but within the dominion of the crown of England, yet it shall not emphatically lie against the governor. In answer to which I say, that for many reasons, if it did not lie against any other man, it shall most emphatically lie against the governor. In every plea to the jurisdiction, you must state another jurisdiction; therefore, if an action is brought here for a matter arising in Wales, to bar the remedy sought in this court, you must show the jurisdiction of the court of Wales; and in every case, to repel the jurisdiction of the King's court, you must show a more proper and more sufficient jurisdiction : for if there is no other mode of trial, that alone will give the King's courts a jurisdiction. Now, in this case no other jurisdiction is shown, even so much as in argument. And if the King's courts of justice cannot hold plea in such case, no other court can do it. Eor it is truly said that a governor is in the nature of a viceroy ; and therefore locally, during his government, no civil or criminal action will lie against him : the reason is, because upon process he would be subject to imprisonment {g). But here the injury is (/) See 1 Salk. 306 ; Vaugh. 138 ; 12 {g) This dictum as to the jiositiou of a C. 24 ; Lord Eaym. 466 ; 6 T. R. 449 ; goveruor was dissented from iu Hill v. 3 M. & S. 411. See too 1 T. R. 493, Bigge, 3 Moo. P. C. 465 ; see also 513, 514, 535, 550, 784 ; 4 Taunt. 67 ; Musgrave v. Pulido, 5 App. Uas. 102, 2 C. & P. 146 ; 1 B. & C. 163 ; 4 B. &. 107 ; and post, p. 623. C. 292. 586 MOSTYN V. FABRIGAS. (Judgment.) said to have happened in the Arraval of St. Phillip's, where, without his leave, no jurisdiction can exist. If that be so, there can be no remedy whatsoever, if it is not in the King's courts : because, when he is out of the government, and is returned with his property into this country, there are not even his effects left in the island to be attached. Another very strong reason, which was alluded to by Mr. Serjeant Glynn, would alone be decisive; and it is this: that though the charge brought against him is for a civil injury, yet it is likewise of a criminal nature ; because it is in abuse of the authority delegated to him by the King's letters patent, under the great seal. Now, if everything committed within a dominion is triable by the courts within that dominion, yet the effect or the extent of the King's letters patent, which gave the authority, can only be tried in the King's courts ; for no question concern- ing the seignory can be tried within the seignory itself. There- fore, where a question respecting the seignory arises in the proprietary governments, or between two provinces of America, or in the Isle of Man, it is cognizable by the King's courts in England only. In the case of the Isle of Man, it was so decided in the time of Queen Elizabeth, by the chief justice and many of the judges. So that emphatically the governor must be tried in England, to see whether he has exercised the authority delegated to him by the letters patent legally and properly, or whether he has abused it, in violation of the laws of England, and the trust so reposed in him. It does not follow from hence, that, let the cause of action- arise where it may, a man is not entitled to make use of every justification his case will admit of, which ought to be a defence to him. If he has acted right according to the authority with which he is invested, he must lay it before the court by way of plea, and the court will exercise their judgment whether it is a sufficient justification or not. In this case, if the justification had b(;on proved, tlie court might have considered it as a sufficient answer : and if the nature of the case would have allowed of it, might have adjudged that the raising a mutiny was a good ground for such a summary proceeding. I can conceive cases in time of war in which a governor would be justilied, though he MOSTYN V. FABRIGAS. 587 acted very arbitrarily, in which he could not be justified in time of peace. Suppose, during a siege or upon an invasion of Minorca, the governor should judge it proper to send a hundred of the inhabitants out of the island, from motives of real and general expediency ; or suppose, upon a general suspicion, he should take people up as spies ; upon proper circumstances laid before the court, it would be very fit to see whether he had acted as the governor of a garrison ought, according to the circum- stances of the case. But it is objected, supposing the defendant to have acted as the Spanish governor was empowered to do before, how is it to be known here that by the laws and constitu- tion of Spain he was authorised so to act ? The way of knowing foreign laws is, by admitting them to be proved as facts, and the court must assist the jury in ascertaining what the law is. For instance, if there is a French settlement, the construction of which, depends upon the custom of Paris, witnesses must be received to explain what the custom is ; as evidence is received of customs in respect of trade. There is a case of the kind I have just stated. So in the supreme resort before the King in council, the privy council determines all cases that arise in the plantations, in Gibraltar or Minorca, in Jersey or Guernsey; and they inform themselves, by having the law stated to them. As to suggestions with regard to the difficulty of bringing witnesses, the court must take care that the defendant is not surprised, and that he has a fair opportunity of bringing his evidence, if it is a case proper in other respects for the jurisdiction of the court. There may be some cases arising abroad, which may not be fit to be tried here ; but that cannot be the case of a governor injuring a man contrary to the duty of his office, and in violation of the trust reposed in him by the King's commission. If he wants the testimony of w^itnesses w'hom he cannot compel to attend, the court may do what this court did in the case of a criminal prosecution of a woman who had received a pension as an officer's widow : and it was charged in the indict- ment that she never was married to him. She alleged a mar- riage in Scotland, but that she could not compel her witness to come up to give evidence. The court obliged the prosecutor to consent that the witnesses might be examined before any of the judges of the court of session, or any of the barons of the court 588 MOSTYN V. FABPvIGAS. (Judgment.) of exchequer in Scotland, and that the depositions so taken should be read at the trial. And they declared that they would have put off the trial of the indictment from time to time for ever, unless the prosecutor had so consented. The witnesses were so examined before the lord president of the court of session. It is a matter of course in aid of a trial at law to apply to a court of equity for a commission and injunction in the mean- time : and where a real ground is laid, the court will take care that justice is done to the defendant as well as to the plain- tiff (A)- Therefore, in every light in which I see the subject, I am of opinion that the action holds emphatically against the governor, if it did not hold in the case of any other person. If so, he is accountable in this court or he is accountable nowhere, for the King in council'has no jurisdiction. Complaints made to the King in council tend to remove the governor, or to take from him any commission which he holds during the pleasure of the crown. But if he is in England, and holds nothing at the jDleasure of the crown, they have no jurisdiction to make repara- tion, by giving damages, or to punish him in any shape for the injury committed. Therefore to lay down in an English court of justice such a monstrous proposition, as that a governor acting by virtue of letters patent under the great seal is account- able only to God and his own conscience, that he is absolutely despotic, and can spoil, plunder, and affect his Majesty's subjects, both in their liberty and property, with impunity, is a doctrine that cannot be maintained. In Lo7-d Bellamont's Case, 2 Salk. 625, cited by Mr. Peckham, a motion was made for a trial at bar, and granted because the Attorney-General was to defend it on the part of the King ; Mhicli shows plainly that such an action existed. And in Wey V. Yalli/, G Mod. 195, Justice Powell says, that an action of false imprisonment has been brought here against a governor of Jamaica, for an imprisonment there, and the laws of the country wore given in evidence. The governor of Jamaica in that case never thought that he was not amenable. He defended (h) The 1 Will. 4, c. 22, eualilcd the resided in a foreign country, or in a courts of law to order the examination ot colony, or in En^jland. See, now, witnessfH who could not attend the trial R. S. C. 1883, 0. 37, r. 5, et seq. to be taken in writing, whether they MOSTYN V. FABRIGAS. 589 himself, and possibly showed, by the laws of the country, an Act of the Assembly which justified that imprisonment, and the court received it as they ought to do. For whatever is a justi- fication in the place where the thing is done, ought to be a •justification where the case is tried. I remember, early in my ime, being counsel in an action brought by a carpenter in the train of artillery against Governor Sabine, who was governor of Gibraltar, and who had barely confirmed the sentence of a court- martial, by which the plaintiff had been tried, and sentenced to be whipped. The governor was very ably defended, but nobody ever thought that the action would not lie ; and it being proved at the trial, that the tradesmen who follow the train are not liable to martial law, the court were of that opinion, and the jury accordingly found the defendant guilty of the trespass, as having had a share in the sentence, and gave 500/. damages. The next objection which has been made is a general objection, with regard to the matter arising abroad ; namely, that as the cause of action arose abroad, it cannot be tried here in England. There is a formal and a substantial distinction as to the locality of trials. I state them as different things : the sub- stantial distinction is, where the proceeding is in rem, and where the effect of the judgment cannot be had, if it is laid in a wrong place. That is the case of all ejectments where possession is to be delivered by the sheriff of the county ; and as trials in England are in particular counties, the officers are county officers ; therefore the judgment could not have effect, if the action was not laid in the proper county. With regard to matters that arise out of the realm, there is a substantial distinction of locality too ; for there are some cases that arise out of the realm which ought not to be tried anywhere but in the country where they arise ; as in the case alluded to by Serjeant Walker : if two persons fight in France, and both happening casually to be here, one should bring an action of assault against the other, it might be a doubt whether such an action could be maintained here ; because, though it is not a criminal prosecution, it must be laid to be against the peace of the king (i) ; but the breach of the peace is merely (i) It seems that the words contra tion of trespass even before the C. L. P. pacem were not necessary in a declara- Act, 1852, for the fine to the king had 690 MOSTYN V. FABRIGAS. (Judgment.) local, though the trespass agamst the person is transitory. Therefore, without giving any oj^inion, it might perhaps be triable only "where both parties at the time were subjects. So, if an action were brought relative to an estate in a foreign country, where the question was a matter of title only and not of damages, there might be a solid distinction of locality. But there is likewise a formal distinction, which arises from the mode of trial; for trials in England being by jury, and the kingdom being divided into counties, and each county considered as a separate district or principalit_y, it is absolutely necessary that there should be some county where the action is brought in particular, that there may be a process to the sheriff of that county, to bring a jury from thence to try it. This matter of form goes to all cases that arise al^road : but the law makes a distinction between transitory actions and local actions. If the matter which is the cause of a transitory action arises within the realm, it may be laid in any county— the place is not material ; and if an imprisonment in Middlesex, it may be laid in Surrey, and though proved to be done in Middlesex, the place not being material, it does not at all prevent the plaintiff recovering damages : the place of transitory actions is never material, except wdiere by particular Acts of Parliament it is made so ; as in the case of churchwardens and constables, and other cases which require the action to be brought in the county. The parties, upon sufficient ground, have an opportunity of applying to the court in time to change the venue ; but if they go to trial without it, that is no objection. So all actions of a transitory nature that arise abroad may be laid as haj^pening in an English county. But there are occasions which make it absolutely necessary to state in the declaration, that the cause of action really happened abroad ; as in the case of specialties, where the date must be set fortli. If tlie declaration states a specialty to have been made at Westminster in Middlesex, and u])on producing the deed, it bears date at Bengal, the action is Ijcen itliolislicd. In JJay v. Mmlcclt, footing, soc Com. Dig., PZcrtfZcr, 3 M. 8. L. Kayni. J'Sfj, Lord Holt said that it As to whetlier the doubt expressed by •\va.s not the contra 'paccm, but the vi cl Lord MansH'jld be well founded, see ;ws<, arrnis, that miglit be omitted, yet, j). 605. quccre, whether they stood on a dilferent MOSTYN V. FABRIC AS. 591 gone ; because it is such a variance between the deed and the declaration as makes it apj^ear to be a different instrument. There is some confusion in the books upon the stat. 6 Eich. 2. But I do not put the objection upon that statute. I rest it singly upon this ground : if the true date or description of the bond is not stated, it is a variance. But the law has in that case invented a fiction ; and has said the party shall first set out the description truly, and then give a venue only for form, and for the sake of trial, by a videlicet, in the county of Middlesex, or any other county. But no judge ever thought that, when the declaration said in Fort St. George, viz., in Cheapside, the plaintiff meant it was in Cheapside. It is a fiction of form ; every country has its forms, which are invented for the further- ance of justice; and it is a certain rule, that a fiction of law shall never he contradicted so as to defeat the end for u-hich it was invented, but for ecery other imrpose it may he contradicted [k). Now the fiction invented in these cases is barely for the mode of trial ; to every other purpose, therefore, it shall be contradicted, but not for the purpose of saying the case shall not be tried. So in the case that was long agitated and finally determined some years ago, upon a fiction of the teste of writs taken out in the vacation, which bear date as of the last day of the term, it was held, that the fiction shall not be contradicted so as to invalidate the writ, by averring that it issued on a day in the vacation : because the fiction was invented for the furtherance of justice and to make the writ appear right in form. But where the true time of suing out a latitat is material, as on a plea of non as^unij)- sit infra sex annos, there it may be shown that the latitat was sued out after the six years, notwithstanding the teste. I am sorry to observe, that some sayings (/) have been alluded to, in- accurately taken down, and improperly printed, where the court has been made to say, that as men they have one way of think- ing, and as judges they have another, which is an absurdity ; whereas in fact they only meant to support the fiction. I will mention a case or two to show that this is the meaning of it. In 6 Mod. 228, the case of Robert v. Harnage is thus stated : The plaintiff declared that the defendant became bound to him {It) Cited by Bramwell, B., A.-G. v. The Queen, 31 L. J. Ch. 58. Kent, 1 H. & C. 12, 28 ; see Holmes v. (Z) See ante, p. 577, note (6). 592 MOSTYN V. FABRIGAS. (Judgment.) at Fort St. David's in the East Indies at London, in such bond ; upon demurrer the objection was that the bond appeared to have been sealed and dehvered at Fort St. David's in the East Indies, and therefore the date made it local, and, by consequence, the declaration ought to have been of a bond made at Fort St. David's in the East Indies, viz., at Islington in the county of Middlesex ; or in such a ward or parish in London : and of that opinion was the whole court. This is an inaccurate statement of the case. But in 2 Lord Eaym. 1042, it is more truly reported, and stated as follows : it appeared by the declaration that the bond was made at London in the ward of Cheap ; upon oyer, the bond was set out, and it appeared upon the face of it to be dated at Fort St. George in the East Indies ; the defendant pleaded the variance in abatement, and the plaintiff demurred, and it was held bad : but the court said that it would have been good if laid at Fort St. George in the East Indies, to wit, at London, in the ward of Cheap. The objection there was, that they had laid it falsely ; for they had laid the bond as made at London ; whereas, when the bond was produced, it appeared to be made at another place, which was a variance. A case was quoted from Latch, and a case from Lutwyche, on the former argument, but I will mention a case posterior in point of time, where both those cases were cited, and no regard at all paid to them ; and that is the case of Parker v. Crook, 10 Mod. 255. It was an action of covenant upon a deed indented ; it was objected to the declara- tion, that the defendant is said in the declaration to continue at Fort St. George, in the East Indies : and upon the oyer of the deed it bore date at Fort St. George, and therefore the court, as was pretended, had no jurisdiction : Latch, fol. 4, Lutwyche, 950. Lord Chief Justice Parker said that " an action will lie in England upon a deed dated in foreign parts ; or else the party can have no remedy ; l)ut then in the declaration a place in England must be alleged jjj'o forma. Generally speaking, the deed, upon the oyer of it, must be consistent with the declaration : but in these cases, propter necessitatem, if the inconsistency be as little as I)ossil)le, it is not to be regarded ; and here the contract being of a voyage which was to be performed from Fort St. George to Great Britain, docs import that Fort St. George is different from MOSTi'N i\ FABUIGAS. 593 Great Britain ; " and after taking time to consider of it in Hilary term, the plaintiff bad his judgment, notwithstanding the objection. Therefore, the whole amounts to tliis : that where the action is substantially such a one as the court can hold plea of, as the mode of trial is by jury, and as the jury must he called together by process directed to the sheriff" of the county, matter of form is added to the fiction, to say it is in that county, and then the whole of the inquiry is, whether it is an action that ought to be maintained. But can it be doubted that actions may be maintained here, not only upon contracts which follow the persons, but for injuries done by subject to subject ; especially for injuries, where the whole that is prayed is a reparation in damages, or satisfaction to be made by process against the person or his effects, within the jurisdiction of the court? We know it is within every day's experience. I was embarrassed a great while to find out whether the counsel for the plaintiff really meant* to make a question of it. In sea batteries the plaintiff often lays the injury to have been done in Middlesex, and then proves it to be done a thousand leagues distant on the other side of the Atlantic. There are cases of offences on the high seas where it is of necessity to lay in the declaration that it was done upon the high seas ; as the taking a ship. There is a case of that sort occurs to my memory ; the reason I remember it is, because there was a question about the jurisdiction. There likewise was an action of that kind before Lord Chief Justice Lee, and another before me(//0, in which I quoted that determination, to show that, when the lords commissioners of prizes have given judgment, that is conclusive in the action; and likewise, when they have given judgment, it is conclusive as to the costs, whether they have given costs or not. It is necessary in such actions to state in the declaration that the ship was taken or seized on the high seas, videlicet, in Cheapside. But it cannot be seriously con- tended that the judge and jury who try the cause fancy the ship is sailing in Cheapside ; no, the plain sense of it is that, as an action lies in England for the ship which was taken on the high seas, Cheapside is named as a venue: which is saying no more than that the party prays the action may be tried in London. But, if a party were at liberty to offer reasons of fact contrary to (m) For the cases referred to, see 2 Dougl. 602, 603. S.L.C. VOL. I. 38 594 MOSTYN V. FABKIGAS. (Judgment.) the truth of the case, there would be no end of the embarrass- ment. At the last sittmgs there were two actions brought by Armenian merchants, for assaults and trespasses in the East Indies, and they are very strong authorities. Serjeant Glynn said that the defendant, Mr. Verelst, was very ably assisted ; so he was, and by men who would have taken the objection, if they had thought it maintainable, and the actions came on to be tried after this case had been argued once ; yet the counsel did not think it could be supported. Mr. Verelst would have been glad to make the objection ; he would not have left it to a jury, if he could have stopped them short, and said. You shall not try the actions at all. I have had some actions before me, rather going further than these transitory actions ; that is, going to cases which in England would be local actions (u). I remember one, I think it was an action brought against Captain Gambler, who, by order of Admiral Boscawen, had pulled down the houses of some suttlers who supplied the navy and sailors with spirituous liquors ; and, whether the act was right or wrong, it was certainly done with a good intention on the part of the admiral, for the health of the sailors was affected by frequenting them. They were pulled down : the captain was inattentive enough to bring the suttler over in his own ship, who would never have got to England otherwise ; and as soon as he came here he was advised that he should bring an action against the captain. He brought his action, and one of the counts in the declaration was for pulling down the houses. The objection was taken to the count for pulling down the houses ; and the case of SJcinner v. East India CdnijMny (o) was cited in support of the objection. On the other side, they produced from a manuscript note a case before Lord Chief Justice Eyre, where he overruled the objection ( j)) ; and I overruled the objection upon this principle, namely, that (»i) Lord Mansfield's opinion as to ^^i'^wc, (1893) A. C. 602 ; see j;os<, p. 602. Gambic/s Case and I'dlliscr's Case, (o) The opinion of tlie judges in this post, was not followed in UouJson v. case, 6 Howell, St. Tr. 710, 719, is cited Matthews, A T. R. 503, where I'niller, J., ante, p. 580. Haid, '• AVc try actions here which are in (jo) " Quwrr, a niisreport of Shilling v. th(;ir nature transitorj', though arising Farmer," 1 Str. 646; per Wright, J., out of a transaction abroad, but not such Companhia de Mocamhique v. British S. as arc in their nature local." IJoulson Africa Co., (1892) 2 Q. B. 358, 362 ; see V. vl/a«//c!/.-,» was approved in iJrltish S. also ])cr Lord lialsbury, S. C, (1893) AJrica Co. v. Conqmnhia dc Mor.am- A. C. 602, 633. MOSTYN V. B^ABRIGAS. 595 the reparation here was personal, and for damages, and that otherwise there would be a failure of justice ; for it was upon the coast of Nova Scotia, where there were no regular courts of Judicature ; but if there had been, Captain Gambier might never go there again ; and therefore the reason of locality in such an action in England did not hold. I quoted a case of an injury of that sort in the East Indies, where even in a court of equity Lord Hardwicke had directed satisfaction to be made in damages iq) ; that case before Lord Hardwicke was not much contested, but this case before me was fully and seriously argued, and a thousand pounds damages given against Captain Gambier. I do not quote this for the authority of my opinion, because that opinion is very likely to be erroneous ; but I quote it for this reason — a thousand pounds damages and the costs were a con- siderable sum. As the captain had acted by the orders of Admir^il Boscawen, the representatives of the admiral defended the cause, and paid the damages and costs recovered. The case was favourable ; for what the admiral did was certainly well intended ; and yet there was no motion for a new trial. I recollect another cause that came on before me ; which was the case of Admiral Palliser. There the very gist of the action was local ; it was for destroying fishing-huts upon the Labrador coast, xifter the treaty of Paris, the Canadians early in the season erected huts for fishing ; and by that means got an advan- tage, by beginning earlier, of the fisherman who came from England. It was a nice question upon the right of the Cana- dians. However, the admiral, from general principles of policy, ordered these huts to be destroyed. The cause went on a great way. The defendant would have stopped it short at once, if he could have made such an objection, but it was not made. There are no local courts among the Esquimaux Indians upon that part of the Labrador coast ; and therefore whatever injury had been done there by any of the king's officers would have been alto- gether without redress, if the objection of locality would have held. The consequence of that circumstance shows, that where the reason fails, even in actions which in England would be local actions, yet it does not hold to places beyond the seas within {q) "In this exercise of jurisdiction of the Court of Chancery ;" 2-<^'>' Lord he has not been tbllowed by any judge Herschell, (1893) A. C. 626. 38 2 596 MOSTYN V. fabric; AS. (Judgment.) the king's dominions. Admiral Palliser's case went off upon a proposal of a reference, and ended by an award. But as to tran- sitory actions there is not a colour of doubt, that every action that is transitor}^ may be laid in any county in England, though the matter arises beyond the seas ; and when it is absolutely necessary to lay the truth of the case in the declaration, there is a fiction of law to assist j^ou, and you shall not make use of the truth of the case against that fiction, but j^ou may make use of it to every other purpose. I am clearly of opinion, not only against the objections made, but that there does not appear a question upon which the objections could arise. The three other judges concurred. Per Curiam : Judgment affirmed. History of English law n; to locality of actions. Juries originally summoned from neigh- bourhood on account of their personal knowledge. It is ver}^ curious and instructive to trace the progress of the English law, respecting the localit}' of actions, though the Judicature Act, 1873, renders the subject of small prac- tical importance so far as regards the question of venue. During the earliest ages of our judicial history, juries were selected for the very reason which would now argue their unfitness, viz., for their personal acquaintance with the parties and the merits of the cause ; and few rules of law were enforced with greater strictness than those which required that the venue, visne, or vieinetnm, i\\ other words the neighbourhood whence the jury were to be summoned, should be also tbat in which the cause of action had arisen ; in order that the jury, who were to determine it i)rincipally from their own private knowledge, and who were liable to be attainted if they delivered a wrong verdict, might be persons likely to be acquainted with the nature of the transaction whicli they were called u))on to try. Peregrina judicia, says a law of Henry the First, inodis oninihus sidmiovemus. \\\ order to effect this end, the parties litigant were recpiired to state in their pleadings with the utmost certaint}', not merely the county, but the very venue, i.e., the very district, Jinndred, or vill, within tliat county, where the facts tliat they alhiged had taken place, in order that the sheriff might 1)(! directed to summon the jury from the proper ncigliboiuhood, in case issue should be taken on any of such MOSTYN V. FABKIGAS. 597 allegations. It followed, of course, that a new vemie was History of designated as often as the allegations of the parties litigant Jo'i^I'.'aiiJy^r shifted the scene of the transaction from one part of tlie actions. country to another. This was, however, soon found to produce great incon- Distinction veniences ; for in mixed transactions, whicli may happen ^'^'^^". 'between , . . . ■ , transitory and partly m one place, and partly m another, it was extremely local matters. difficult to ascertain the right venue ; and as the number of these transactions increased with increasing civilisation, these difficulties about determining the place of trial became of constant occurrence, and soon induced the courts, in order to relieve themselves, to take a distinction between transitory matters, such as a contract which might happen anywhere, and local ones, such as a trespass to the realty, which could only happen in one particular place ; and they established as a rule, that in transitory matters the plaintiff should have a right to lay the venue where he pleased, and the defendant should be bound to follow it, unless indeed his defence consis'ted of some matter in its nature local, which must therefore, ex necessitate rei, be alleged to have taken place where it really happened. However, this distinction was soon abused by litigious Ancient strict- plaintiffs, who, by laying the venue in a county distant from ""^"^ ^^ ^°. , ^ ' 5 .' ^ ^ o ^ .T venue revived. the defendant's residence, obliged him to come thither with his witnesses ; Gilb. C. P. 89 ; and this occasioned a return to the ancient strictness with regard to venues expressed in the above law of Henry the First. Accordingly by stat. 6 liicli. 2, c. 2, it was enacted, "to the intent that writs of debt, and account, and all other such actions be from hence- forth taken in their counties, and directed to the sheriffs of the counties where the contracts of the same actions did arise, that if, from henceforth, in pleas upon the same writs it shall be declared that the contract thereof was in another county than is contained in the original writ, that then the said writ shall be utterly abated : " and, as the words of this statute were found not quite sufficient to effect the object, statute 4 Hen. 4, c. 18, directed that attorneys should be sworn " that they would make no suit in a foreign county." After these statutes the judges adopted various means of enforcing their provisions. At first thej' examined the plaintiff on oath, as to the truth of the venue ; afterwards they allowed the defendant to traverse it and try it in an issue ; Rastell, Debt, 184 b, Fit/. Abr., Brief, 8 ; and still later they made a rule of court, rendering it highl}' penal on 598 MOSTYJS V. FABEIGAS. History of English law as to locality of actions. Where local matters alleged in anj- pleading venue strictly local. Hence defen- dant confined to one plea. Since 16 & 17 Car. 2, c. 8, m> arrest of ver- dict, if case tried by .jury from pl.'ic"" wliere the action laid in the declara- tion. attorneys to transgress the act of Hen. 4 ; R. M. 1()54, pi. 5, K. B. • M. 1654, pi. 8, C. P. ; but finding that the mode of traversing the venue produced great delay, they at last adoi^ted the mode of changing it on motion, which continued in use until the Judicature Act, 1873, which will be referred to below, came into force. But all these alterations in the law applied, it must be borne in mind, only to transitory matters, for where a matter alleged in pleading was of a local description, whether the allegation happened in a declaration or in any subsequent pleading, the venue for the trial of such matter could be nowhere but at the very place where it was alleged in pleading to have happened, and therefore, as is observed in the text, p. 577, " even in cases the most transitory, if the cause of action was laid in London, and there was a local justification as at Oxford, the cause must have been tried in Oxford, not in London." Ace. Ford v. Brooke, Cro. Eliz. 261 ; Boicyer's Case, Moore, 410. And it was probably this strictness of the law with regard to venue which rendered it necessary to confine the defendant so long to a single plea, since had he pleaded several pleas on which issues had been taken triable by different venues, there could have been no single trial of the action ; and accordingly w^e find that it was not till after the eff'ect of the statute of Charles the Second on venues had become well settled, that the very same 3'ear which put an end to the last remnant of the old severity, by abolishinc; the necessity of summoning hundreders, also endowed the defendant with a right which he ought in justice always to have possessed, of stating everything in his defence which can by law be made available to exonerate him ; the right corresponding to which, that, namely, of replying to the defence everything which has a direct tendency to rebut it, was, even in more advanced times, denied the plaintift", until the passing of the C. L. P. Act, 1852, s. 81. But to reluvn to the progress of the law of venue, stat. 16 & 17 Car. 2, c. 8 (one of the statutes of Jeofails), enacted that " after judgment no vei'dict shall be arrested or reversed, for that there is no right venue, so as the cause of action were tried liy a jury of the proper county or i)lace wliere the action was laid." C()nsid(i'al)le diriiculty arose on the consti'uction of this statute, many lawyers contending that the words "the ])riiii(i' coiiiiiy or pla(;e where the action is hiid " must be MOSTYN V. FABltI(;A.S. 599 understood to mean the proper county or place where the I^i^tory of issue arises, so tliat ir tlie issue arose at Uaie in Oxfordshire, to locality of and the reiiiic was Sale in the same county, liere thev said "^t'ons. was a case within the statute, there being a right county but a wrong venue. However, it was at length decided in Craft V. Boite, 1 Saund. 246 b, contrary to the opinion of Twysden, J., and settled by many subsequent cases, that the words '^wJiere the action was laid" meant, where it Vvas laid in the declaration, not in an_v subsequcnit })Ieading. And accordingly it was ever afterwards held sufficient if the jury were summoned from the venue laid in the declaration. This venue indeed was at that time the vill or hundred Venue origin- wliere the cause of action was stated in the declaration to \J,^(i^.^gi have arisen; and anciently the jury, in order that they might be persons well acquainted with the controversy, were summoned out of the very hundred designated for i\\Q venue. Afterwards the rule was relaxed, and in the reign of Edward K,''l(' relaxed, the lliird it was sufficient if the jury contained sir hundreders ; Gilb. C. P. c. 8. This number was in Henry the Sixth's reign reduced io four ; Fortescue de Laud, c. 25 ; it was afterwards, by stat. 35 Hen. 8, c. 6, restored to six; stat. 27 Eliz. c. 6, reduced it to two; and so the law remained till long after the stat. 16 & 17 Car. 2, c. 8, after which Act it was still necessary that two at least of the jurors should be summoned from the hundred laid in the declara- tion ; and if there were not so many, it was cause of challenge. But this last remnant of the ancient strictness was abolished by 4 & 5 Anne, c. 6, excejit so far as con- cerned actions founded upon penal statutes, to which the abolition was extended by 24 G. 2, c. 18. So tliat thence- Sufficient forth it was in all cases sufficient if the iury were summoned ^*J"^'y , , ' . , summoned de corpore comitatus, i.e., from the body of the county in from county. which the venue was laid b}' the declaration. It has been already mentioned that in transitory actions Practice the iudges adopted various modes of enforcing the policy of I'ltruduced of J '^ ^ o 1 J chauging the the statute of Kichard the Second, and obliging the plaintiff venue on tlie to lay his venue where the transaction in dispute had reallv '^^","^°?- »' ^ • amdavit in occurred. At last they had recourse to a practice, which transitory seems to have beeu tirst introduced in the reign of James ''''^^'°''"- the First, {per Holt, C.J., 2 Salk. 670; the first case in the books is Gerrard v. Floyd, 1 Sid. 185, E. 16 Car. 2), founded upon the equity of that enactment, by which they held themselves authorised, upon affidavit made that the 600 MOSTYN V. FABRIGAS. History of English law as to locality of actions. Cases in which defendant could not make the common affidavit. Power to change venue in local actions. Privilege of Crown to re- tain the venue 'There it pleases. Privilege of attorney. Local vcnui-s aholiHlicil siriff; the .Judicature Acts. cause of action, if any, arose in the county of A., and not in the county of B., in which the venue was laid, or elsewhere out of the county of A., to change the venue to the county of A., and the motion for so doing was of course, only requiring counsel's signature ; E. H. 2 W. 4, pi, 103. But as it would be hard to conclude the plaintiff on the single affidavit of the defendant, it was further held that the venue must be brought back, if the plaintiff undertook to give material evidence in the county in which the action was brought, failing which lie must have been non-suited, which was equivalent to an abatement of the writ, according to the statute ; Gilb. C. P. 90 ; Sautler v. Heard, 2 W. Bl. 1032, 1033 ; Bruckshaic v. Hopkins, 1 Cowp. 409 ; Wathins V. Tou-crs, 2 T. K. 275. There ^ere many cases of transitory actions in which the defendant could not by possibility make the above common affidavit, but could procure a change of venue on a special affidavit in the interests of justice; see Tidd's Pract. 005. By the rules of Hilary Term, 1853, all former written rules of practice were abolished, and the only rule substituted relating to venue was the 18th, which was that " no venue can be changed without a special order of the court or judge unless by consent of the parties." By 3 & 4 W. 4, c. 42, s. 23, power was given to the court or a judge to alter the venue in certain cases, even in local, as distinguished from transitor}' actions, and this power was further enlarged by the C. L. P. Act, 1852, ss. 41, 182. As to the right of the Crown, in transitory but not in local actions, to lay and retain the venue where it pleases ; see A.-G. v. Churehill, 8 M. & W. 171 ; and as to similar rights in the Attorney-General for the Prince of Wales, see A.-G. to the Prince of Wales v. Crossman, L. P. 1 Ex. 381, and the cases therein cited. As to the right of the Crown, under 28 I'v; 29 Vict. c. 104, s. 46, to change the venue in cei'tain cases as of right, see Dixonv. Farrer, 18 Q. B. 1). 43. An attorney suing in person had, before the Judicature Act, 1873, the ju-ivilegc to lay and retain the venue in Middlesex, and the court had no power to change it; Grace V. WUmcr, 2(; T.. J. Q. B. 1. The liiw oil 111 is subject is now contained in the Judica- ture Acts, 1873 (3(5 \- 37 Vict. c. GO), and 1875 (38 iV 39 Vift. c. 77), iind the rules made in ]mrsu;incc of those Acts, liy W. S. C, 1883, O. 30, i'. 1, it is provided that "there MOSTYN V. FABRIGAS. 601 shall be no local ronie foi- tlic trial of any action, except where otherwise ])rovi(l((l l)y statute. Every action in every division shall, unless the couil or a ju(l<^'o otherwise orders, be tried in the county or place named on the state- ment of claim, or (where no statement of claim has been delivered or required) by a notice in writing to be served on the defendant, or his solicitor, within six days after appear- ance. Where no place of trial is named, the place of trial shall, unless the court or a judge shall otherwise order, be the county of Middlesex." The effect of this rule is to abolish all local venues existing at the time of the passing of the Judicature Acts, and the fjualification, " except where otherwise provided by statute," applies only to statutes passed since 1875 ; Bucldey v. Hull Docks Co., (1893) 2 Q. B. 93. B}' rule 1a. of the same order, it is provided that the provisions of rule 1 " shall apply to every action, notwith- standing that it may have been assigned to any judge." In deciding upon applications to change the place of trial, the courts are governed to a great extent by the same principles as governed the practice, prior to the Judicature Acts, on motions to change the venue. In Chuvch v. Baiiiett, L. E. 6 C. P. 116, Willes, J., stated the true rule to be that a plaintiff had the right to lay his venue where he thought proper. If he did so capriciously, a judge would change the venue to the place where the cause of action arose. But, where he had not exercised a cai)ricious choice, the defen- dant who sought to deprive him of an undoubted right must show that there would be a practical preponderance of con- venience in trying the cause in the place where the cause of action arose. The same doctrine as to the preponderance of convenience was laid down in HellUvell v. llohson, 3 C. B. N. S. 761, and Duvie v, Hopn-ond, 7 Id. 835 ; the places where tlie contract was made and where the breach took place being also elements for consideration ; Levy v. Eice, L. E. 5 C. P. 119. In Schnxler v. Myers, 34 W. R. 261, the C. A. affirmed the plaintiffs prima facie right to lay the venue where he pleases. The court will not in general interfere with an order to change the venue made by a judge at chambers, unless he acted on a misconception of the facts ; Schuster v. Wheelright, 8 C. 11 N. S. 383 ; see Jackson v. Kidd,^9 L.J. C.'P. 221 ; and Church v. Barnett, Levy V. Rice, and ScJvroder v. Myers, supra. In Green v. Bennett, 54 L. J. Ch. 85, and Powell v. Cohh, 602 MOSTVN V. FABKIGAS. 29 Ch. D. 486, which were actions in the Chnncery Division since the Judicature Acts, the question was treated as one for the discretion of the judge to whom the actions were assigned as to the preponderance of convenience. But where Bacon, V^.-C, made an order changing the place of trial to London, on the ground merely that the action was hrought in the Chancery Division, the C. A. set aside the order; Philips v. Beale, 26 Ch. D. 621. To turn now from the technical rules respecting the venue or place of trial to more substantial doctrines with regard to causes of action arising abroad. Local causes " Our courts are said to be more open to admit actions arisinf^° abroad bounded upou foreign transactions than those of any other excluded from European country ; but there are restrictions in respect of locality which exclude some foreign causes of action alto- gether, namely, those which would be local if they arose in England, such as trespass to land ; and even with respect to those not falling within that description, our courts do not undertake universal jurisdiction ; " Phillips v. Eyre, per Willes, J., L. R. 6 Q. B. 1, 28 ; see Doulson v. Matthews, 4 T. E. 503, which was approved in the H. L. in British S. Africa Co. v. Companhia dc Moca))ihique, (1893) A. C. 603. Jurisdiction To some extent, no doubt, the difficulty as to local "° f^|?"'' j ' where tlie disputed claim of title to foreign land, or "to adjudicate siiliicct-niatter i • <• ^-ii i. j- • i i • i- ,■ i i is land abroad ^ip"" <^''aiiiis ot title to loreigu liilid ill iiroceediugs loiuuled on the iilleged invasion of the ])ro})rietiiry rigbts attached to it, and to award (bimages founded on thai adjudication;" British S. A tried Co. V, Coiiijxdihia dc M()c<(iiihiiiiic, .si(j)r((, at p. 625, wlierc the; (|iiestion was elal>orately discussed ; and this is AIUSTYN V. FABlUGAy. 003 SO, whether the parties be aliens or domiciled in England. In Carteret v. Petti), '2 Swanst. 323 n., a bill for partition of foreign lands was dismissed ; and so, in Graliam v, Masseij, 23 Ch. D. 743, was a suit for an account of tli3 purchase- money on a sale of foreign land, the title to which was in dispute between the parties. In some cases the Courts of Equity have entertained Except in suits affecting lands beyond the jurisdiction, as by decreeing through their specific performance of articles concerning boundaries of jurisdiction in provinces in America; Penn v. Baltimore, 1 Ves. sen. 444, P^"" '^'^"■^' • Tudor's L. C. in Eq., vol, ii. ; or b.y a foreclosure decree of a mortgage of land situate abroad; Toller y. Carteret, 2 Vern. 494 ; Paf/et v. Ecle, 18 Eq. 118 ; but this exceptional jurisdiction has been exercised oidy by reason of the authority of the court in personam, and, as it seems, only where there was privity between the parties arising by reason of a contract made within the jurisdiction ; Norris v. Chamhrex, 29 Beav. 246, 3 I)e G. F. & J. 583 ; Cookney v. Anderson, 31 Beav. 452, 1 De Gr. J. & S. 365; Norton v. Florence Land Co., 7 Ch. I). 332; see also Pie Plolmes, 2 J. & H. 527 ; Blake v. Blake, 18 W. E. 944 ; Reiner v. Salisbury, 2 Ch. D. 378, where Malins, V.-C, refused to entertain a bill for discovery in aid of proposed proceed- ings to recover land in India ; Batthyany v. Walford, 36 Ch. 1). 269; &nd per Wright, J., Conipanhia de Mocamhique V. Britisli S. Africa Co., (1892) 2 Q. B. 358, 364. On the other hand, speaking generally, (and subject to Otherwise, as the distinction before mentioned in respect of l<)C(d actions), oiu-^ courts ' where the action is in personam, whether in respect of a entertain contract or of a tort, our courts will, it is apprehended, of action entertain it, though the cause of action ma}- have arisen tliough parties abroad, and though the parties to it may be aliens, provided that service of process is effected according to their rules. See Story's Conflict of Laws, 542-543 ; Wharton's Conflict of Laws, 2nd ed., 743 ; Phillimore Priv. Int. Law, 701 ; Buenos Ayres U. Co. v. N. R. Co. of Buenos Ayres, 2 Q. B. D. 210. " Though every fact arose abroad, and the dispute was between foreigners, yet the courts, we appre- hend, would clearly entertain and determine the cause, if in its nature transitory, and if the process of the couit had been brought to bear against the defendant by service of a writ on him where present in England ; " 2)er Brett, J., Jackson v. Spittall, L. K. 5 C. P. 542, 549. As regards contractual obligations, however, a distinction Possible exception. 604 MOSTYN V. FABRIGAS. has been taken that, where the contract is made abroad, and its su])ject-matter is abroad, an English court will not enter- tain a cause of action in respect of it, if the parties be aliens, though it would do so if they were domiciled here ; see Matthaci v. GaUtzin, 18 Eq. 340, and the judgment of Romilly, M.R., in Cookney v. Anderson, 31 Beav. 466, which was affirmed, 1 De G. J. & S. 365. Qiucre, whether the dicta in the last cited cases are not too wide. In Doss v. Sec. of State for India, 19 Eq. 535, Malins, V.-C, approved of and followed 'Matthaci v. GaUtzin. ^art y. In Hart v. Herwig, 8 Ch. 860, the plaintiff, an English- man, made at Hamburg an agreement with the defendant Herwig, domiciled at Hamburg, for the sale by Herwig, to the plaintiff, of a Hamburg ship then on voyage, to be delivered to the plaintiff* at any place whither she might be ordered for discharge, the seller making allowance if she arrived in a damaged state. The ship was ordered to Sunderland to discharge, but, on arrival, delivery was refused except on payment of the full price. The Lords Justices affirmed an order of Malins, V.-C, restraining the removal of the ship by the defendant Herwig, or the master, who was also made a defendant. James, L.J., said, " The substantial question is, whether this court has power to prevent a specific chattel from being rexnoved out of the jurisdiction until a question relating to that chattel is decided. I am of opinion that, according to the established law of nations, if this suit were a suit for damages only, or one which could result in damages only, then tiie plaintiff must, in order to enforce his claim for damages, go and seek tlie forum of the defendant. But where the contract, as in this case, though made abroad, is to deliver a thing in specie in this country, and the thing itself is brought here, then the court here, in the exercise of its discretion, will see that the thing to be delivered in this country does not leave this countr}', so as to defeat the right of the plaintiff to have it so delivered." It is presumed that James, L.J., in saying that, if the suit was a suit for damages only, then lli(' i>biintill must seek the forum of the defendant, was speaking of a case in wbich there bad been no service of process witliiii tbc jurisdiction, and that the necessity would arise IVoiu tliis, and not iVoni any inherent lack of jurisdiction in our courts to try such a case, if service of process had been effected. See the judgment of Mellish, L.J. As to service of process, see ]>osl, ]). 607. MOSTYN V. FABUKiAS. 605 But just as, in the case of torts, the acts coniphiined of Contracts must be actionable both by English law and by the law of violate the country where they were committed, so also, in the case Knglish law. of contracts, our courts will not enforce contracts which are illegal according to English law, though they be legal according to the law of the place where they are made ; Santos V. Hl'ubjc, (J C. B. N. S. 841, reversed in error, 8 Id. 861, but only on the ground that the contract sought to be enforced was not prohibited by English law. See also Grell v. Levy, 16 Id. 73 ; Hope v. Hope, 26 \j. J. Ch. 417. As regards torts, there seems to be no reason why aliens Injuries must should not sue in England for personal injuries done them ^oth by by other aliens abroad, when such injuries are actionable foreigu ami T ' 1 1 11 /^ -n 1 1 11 1 1 , /■ 1 i ^y local law. both by tiie law oi England and also by that oi the country where they are committed, and the impression which had prevailed to the contrary (see ante, p. 589), seems to be erroneous. See The Halley, L. R. 2 P. C. 193, 202, where this statement was cited with approval, and the point was treated as " long since established." But to found a cause of action between aliens, or between aliens and British subjects, or between British subjects in an English court for a wrong committed abroad, both these conditions must be fulfilled. See the judgment in PliilUps V. Eijre, L. R. 6 Q. B. 1 ; The M. Moxham, 1 P. I). 107 ; and per Lord Esher, Chartered Bank of India x. Netlierlands St. Nav. Co., 10 Q. B. D. 521, 536 (who, however, said that "for a tort committed on the liipli seas between two foreign ships an action can be maintained in this country although it is not a tort according to the laws of the courts in the foreign country to which the ships belong "). Thus, in TJie Halley, supra, the Judicial Committee, reversing the decision of the Court of Admiralty, pronounced against a suit in the Admiralty founded upon a liability by the law of Belgium for collision caused by the act of a pilot, whom the shipowner was compelled by that law to employ, and for the act of whom therefore, as not being his agent, he was not responsible by English law. Conversely, in Phillips v. Eyre, supra, the Exch. Cham. Phillips v. upheld the decision of the Q. B. that no action could be maintained in an English court in respect of an assault and imprisonment which had been rendered lawful in Jamaica, where the alleged acts took place, by an Act of Indemnity. That historical case is a remarkable exemplification of the Eyre. 60(3 MOSTYN V. FABRIGAS. doctrine of English law now under discussion, because it was thereby solemnly decided, in the words of Cockburn, C.J., that "the principle, that an act authorized by the law of the country in which it takes place cannot be the subject of a legal proceeding here, is equally applic- able to an act originally wrongful but legalized by an ex jjost facto law " of the foreign country. It was an action brought by an inhabitant of Jamaica against the defendant, who had been governor of that island, for an assault and false imprisonment ; and the acts com- plained of took place during the rebellion in that island in 1865. The defendant pleaded an Act of Indemnity passed by the Jamaica Legislature, to which plea the plaintiff demurred. On the argument a number of objections were urged against the plea, and, inter alia, that such an Act could not take away the plaintiff's right of action in this country. The Q. B. and the Exch. Cham., on appeal, unanimously decided in favour of the defendant. In delivering the judgment of the latter Court, AVilles, J., said : " A right of action, whether it arise from contract governed by the law of the place or wrong, is equally the creature of the law of the place, and subordinate thereto. The terms of the con- tract or the character of the subject-matter may show that the parties intended their bargain to be governed by some other law ; but, 'prima facie, it falls under the law of the place where it was made. And in like manner the civil liability arising out of a wrong derives its birth from the law of the plar , and its character is determined by that law. Therefore an act committed abroad, if valid and unquestionable b}^ the law of the place, cannot, so far as civil liability is concerned, be drawn in question elsewhere, unless by force of some distinct exceptional legislation, superadding a liability other than and besides that incident to the act itself. In this respect no sound distinction can be suggested between the civil liability in respect of a contract governed by the law of the place and a wrong. . . . "Where an obligation ex delicto to pay damages is discharged and avoided by the law of the country where it was made, the accessory right of action is in like manner discharged and avoided." As to ex post facto legislation, see also lioNqKctte v. Over- wann, L. R. 10 Q. B. 586. T/tc Maria Again, in The M. Moxliaiii, 1 W D. 107, which was a Moj/inm. cause of damage instituted l)y an English company against MOSTYN V. FABKIGA.S. 607 the owners of an English sliip for injuries to a pier belonging to the company, but situate in a Spanish port, the C. A., overruling the decision of Sir R. Philliniore, upheld an alleged defence that, if the collision was caused by negli- gence, it was negligence of the master and nniriners of the ship, and that by the law of Spain the owners were in such a case not liable. In this case any objection to the jurisdiction of the English court was waived. See also Scott V. Sei/niour, 1 H. & C. 219 ; Siihnarinc TelcfirapJt Co. V. Dickson, 15 C. B. N. S. 759; Hart v. Giintparli, L. R. 4 P. C. 439 ; The Mali Iro, L. R. 2 A. & E. 35G ; Batthjaxij V. Walford, 36 Cli. D. 269. The foregoing remarks as to the capacity of the English There must courts to take cognizance of actions against foreigners must ^!^^.^^^^^^'^ ° be taken subject to the qualification that, to give an English court jurisdiction in personal actions, there must be service of its process within the jurisdiction, or in certain cases service or notice in lieu thereof without the jurisdiction. See per Bowen, L.J., Be King d- Co.'s Trade Mark, (1892) 2 Ch. 462, 483 ; cp. Sirdar Gurdi/al Singli v. Bajali of Faridlcote, (1894) A. C. 670. Service without the jurisdiction is provided for under the Judicature Acts b}' the rules in Order XL But this is of course a technical question, totally distinct from the broader one discussed in these notes, as to the capacity of English courts to take cog- nizance of foreign causes of action. As to the jurisdiction of our Courts over a chattel when brought to this country, see Hart v. Hera-ig, 8 Ch. 860, cited ante, p. 604. A special jurisdiction has sometimes been exercised by the Admiralty Division over foreign ships at the request of the representative of the State to whose subjects such ships belong ; see The Agincourt, 2 P. I). 239 ; T}ie Evaiigel- istria, Id. 241. As to the Hmits of the Crown's jurisdiction not extending beyond low water mark, see B. v. Keijn, 2 Ex. D. 63 ; 46 L. J. M. C. 17 ; Harris v. Owners of " Franconia," 2 C. P. D. 173 ; and 41 & 42 Vict. c. 73. As to when a foreigner can be made a bankrupt in Foreigner England, see Ex p. Crisjnn, 8 Ch. 374 ; cp. Be Artola ^^'^^'"-'l'^- Hermahos, 24 Q. B. 1). 640. As to when bankruptc}^ l^ro- ceedings can be served on a foreigner, see Ex p. Pascal, 1 Ch. D, 509 ; Exp. Blain, 12 hi. hl'2; Be Pearson, (1892) 2 Q. B. 263. 608 MOSTYX V. FA BRIG AS. Locios regit actum. Foreign judgments. Maritime contracts. Locus reij'it actum, is a canon of general jurisprudence, and must be assumed in the absence of contrary evidence to hold good in ever}' system of law ; Guci)ratte v. Young, 4 De G. & S. 217 ; Re Barnard, 56 L. T. 9. See Cammell v. Sewell, 5 H. (.1- N. 728, where a sale in Norway of goods there, abandoned to English underwriters, was upheld as valid b}^ Norwegian though invalid by English law. An action will lie in the courts of this country on the judgment of a foreign court of competent jurisdiction, even when the cause in which the judgment was obtained would have been decided differently according to English law ; Munroe Y.Pilkington, 2 B. & S. 11 ; Dent v. Smith, L. R. 4 Q. B. 414; Messina v. Petrococchino, L. R. 4 P. C. 144; Castrique v. Imrie, L. B. 4 H. L. 414 ; Goclard v. Gray, L. R. 6 Q. B. 139 ; Re Trufort, 36 Ch. D. 600. But the judgment must be one that finally and conclusively settled the existence of the debt ; youvion v. Freeman, 15 App. Cas. 1. And, in the case of a defendant not subject to the laws of, nor resident in, the country where the judgment was obtained, the defendant "must have appeared in the foreign courts ; Schihsby v. Wcstenholz, L. R. 6 Q. B. 155 ; Turnhidl v. Walker, 67 L. T. 767 ; Sirdar Gurdyal Singh v. Rajah of Faridkote, (1894) A. C. 670. If the defendant appeared, it is immaterial that he did so merely to protect property of his in that country ; Voinet v. Barrett, 55 L. J. Q. B. 39. The courts of this countr}^ will not enforce a foreign judg- ment, if it was recovered in an action on behalf of the foreign State for the punishment of an offence against its municipal law ; Huntington v. Attrill, (1893) A. C. 150. To an action on a foreign judgment it is a defence to show that the judgment was obtained by fraud; Ai)ouloJf v. Oppenheimer, 10 Q. B. D. 295 ; Vadala v. Lawes, 25 Q. B. D. 310. See further, as to the grounds on which a foreign judgment may be impeached, the notes to The Duchess of Kingston's Case, post, vol. ii. In Simpson v. Fogo, 1 H. & M. 195, Wood, V.- C, declined to enforce a decree of a court of Louisiana acting in defiance of British law and the comity of nations. Compare with this case lArerpool JSIarine Credit Co. v. Hunter, 3 Ch. 479. In a contract by charter-party the law of the fiag as a general rule jjrcvails ; IJoi/d v. Guihert, L. R. 1 Q. B. 115; TJie August, (1891) P. 328 ; and the same law governs the right of a shipmaster to bottonny his cargo ; The Gaetano and Maria, 7 1*. I). 137 ; but this is oidy prima facie, and MOSTYN V. FABlllGAS. fiOO the whole circumstances must be looked tit to see what was the intention of the parties; Chdrtered Mercantile Bank of India v. Netherlands S. Nar. Co., 10 Q. B. D. 521 ; The Industrie, (1894) P. 58 ; Re Missouri SS. Co., 42 Ch. D. 321 ; and see Moore v. Harris, 1 App. Cas. 331. On the question whether our courts recognize a "general maritime law," distinct from the law of this country, see Lloyd v. Guibert, sujjva; The Patria, L. E. 3 A, & E. 436 ; The Gaetano and Maria, supra; TJie Leon, 6 P. D. 148. With respect to transitory causes of action which have Cause of action accrued abroad, like that in the principal case of Mosti/n v. j^J^'/,ii!^\J^. Fahrigas, it must be remarked that, although the courts of cedum by lex this country will entertain them, still they will, in adjudi- cating on them, be governed by tlie laws of the country in which they arose, or, in the case of contracts, by the law with reference to wliicli the parties may be presumed to have contracted ; Handi/n v. Talisker Distillen/, (1894) A. C. G02; Lloijd v. Gaihert, 6 B. & S. 100; Smith v. Weguelin, 8 Eq. 198 ; Ex p. Holthaiisen, 9 Ch. 722, per Meihsh, L.J. ; Cohen v. S. E. R. Co., 2 Ex. D. 253 ; De Grencliy v. Wills, 4 C. P. J). 3G2 ; Adams v. Clnttrrhiick, 10 Q. B. I). 403; Chartered Mere. Bank v. Netherlands St. Nav. Co., supra. On the latter point "the broad rule is that the law of a country wliere a contract is made presumably governs the nature, the obligation, and the interpretation of it, unless the contrary appears to be the express intention of the parties ; " Jacobs v. Credit Lyon- nais, 12 Q. B. D., 589, 600. See The Missouri SS. Co., 42 Ch. D. 321, 338 ; Hamlyn v. Talisker Distillery, supra; Ex p. Dcver, 18 Q. B. D. 660, 666; Gibbs v. Societe des Metaux, 25 Q. B. D. B')9, 405 ; Re Barnard, 56 L. T. 9; and Chandierlain v. Napier, 15 Ch. D. 614, where Hall, V.-C, held that such an intention did appear. The distinction laid down in all cases of this desci'iption is between the cause of action, which is to be judged of with reference to the law of the country where it originated, and the mode of procedure, which must be adopted as it happens to exist in the country where the action is brought. This distinction is illustrated l)y tlie decisions which have Effect of con- been given in our courts as to the liabilities and rights of as\o*binrof parties to, and holders of, bills of excliange drawn, accepted, exchange, and indorsed in different countries, and by the enactment in the Bills of Exchange Act, 1882, s. 72 (set forth jwst, S.L.C. — VOL. I. 39 610 MO.STVN V. FABKIGAS. p. 614), which presumabl}' was intended to eml)ody the effect of those decisions. Trimhcijx. Thus in Trimhci/ v. Virjmer, 1 B. N. C. 151, it was held, Vignier. ^^ ^^^^ assumption that, by the law of France, an indorse- ment in blank does not transfer any property in a bill of exchange or promissory note, that the holder of a note made in France and tliere indorsed in blank could not recover upon it in this country against the maker. And although in Bradlaugh v. De Fiin, L. R. 5 C. P. 473 (better reported 39 L. J. C. P. 254), the Exch. Cham, declined to follow Trimhey v. Vignier, it was on the express sfround that in the latter case the court had mistaken the French law, and that according to French law a blank indorsement acted as a procuration, that is to say, did convey a right to sue, though subject to the equities affecting the indorser in blank. Lebelv. On the other hand, in Lehel v. Tucker, L. Pt. 3 Q. P. 77, it was held that, in the case of a bill of excliange drav/n, accepted, and payable in England, the acceptor was liable to a liolder after indorsement in France under similar circumstances to those in Trimhey v. Vignier ; though the court assumed the French law to be as stated in Trimhey v. Vignier, distinguishing that case on the ground that the con- tract of the English acceptor of an English bill must be governed by English law. They at the same time declined to express any opinion as to what would be the effect of such an indorsement as between the indorser and any sub- sequent indorsee in an action against the indorser himself. acUaugh v. The case of Bradlaugh v. De Ilin, supra, was intermediate '^'"'" between Trind)ey v. Vignier and Lehel v. Tucker. In the report of the case in the C. P. it is stated, both in the report and in the judgment, that the bills sued ui)on were drawn in France; see L. P. 3 C. P. 538. In the report in the Exch. Cham, it is stated that they were drawn in Belgium ; but in that court, as in the court below, it appears to have been assumed that the bills were in their inception French bills. They were accepted in T]ngland, but afterwards indorsed in I'rance in blaidv, and it was assumed in the Court of C. P. that by I'rench law such an indorsement was insufficient to give the liolder — the plaintiff — a title to sue the acce))t()r — the defendant, 'The majority of the Couil ol' ('. P., c. 1, and Kx p. Puscal, 1 Cli. D. 509. '■'"'■'K" A dischai-gu in baukniptcy under the law of a foreign hankruntcy. , , , , '. , . ., , . ^ t i country where the ba,nki'U})t is domiciled is not a discliarge of a contract made and to be performed by him in this MOSTYN V. FABRIGAS. 619 country; Gihbs v. Societe des Metaux, 25 Q. B. D. 399. As to the effect of proving or receiving dividends in the foreign bankruptcy, see Pliill'q^s v. Allan, 8 B. & C. 477 ; Banco de Portngal v. Wadddl, 5 App. Cas. 161. Another application of the rule, that procedure is to be General Steam governed by the law of the country in which the action is ^^^„^J^ brought, may be found in the judgment of the Court of Guillou, an Exch. in Gen. St. Nav. Co. v. Guillou, 11 M. & W. 877. "he rule as to The action was on the case for running down a ship at sea ; lex fori. one of the defendant's pleas stated that he was a French- man, and that the injury complained of was committed on the high seas, out of the jurisdiction of the Queen of England, not by the defendant personally, but by the master of a French vessel in the employ of a French company, of which the defendant was a shareholder and acting dii-ector ; that the defendant never was possessed of, or interested in, the vessel which did the injury, otherwise than as such shareholder, and that by the hiw of France he was not responsible or liable to be sued or impleaded individually, or in his own name or person, in any manner whatsoever, but that by tliat law the company alone, by their style or title, or the master or person in command for the time being of the vessel, was responsible and liable to be sued or impleaded, and that the defendant was not the master or person in command. Upon the grammatical construction of that plea, the Court of Exch. were divided in opinion, but they agreed that, if the plea were taken (according to the construction put upon it by Parke, B., and Gurney, B.) to aver that by the law of France the defendant was " not liable for the acts of the master, but that a body established by the French law, and analogous to an English corporation, were the proprietors of the vessel, and alone liable for the acts of the master, who was their servant, and not the servant of the individuals com- posing that body," then there was (as they were all strongly inclined to think) a good defence to the action ; but that if, on the other hand, the plea were taken (according to the view of Lord Abinger and Alderson, B.) to mean " that in the French courts the mode of proceeding would be to sue the defendant jointly with the other shareholders under the name of the association," then it was bad on the ground that " the forms of remedies and modes of proceeding are regulated solely by the law of the place where the action is instituted, the lex fori; and it is no objection to a led: fori. 620 MOSTYN V. FABRIGAS. suit instituted in proper form here, that it wouhl have been instituted in a different form in the court of the country where the cause of action arose, or to which the defendant belongs."' Other in- So, where a colonial Act gave a mode of proceeding against the nile^as ^ banking company by suing their chairman to judgment, and to lex fori. provided a particular mode of proceeding upon that judgment against members for the time being, it was considered that the members might, even in respect of a cause of action which arose in the colony, be sued in Eugland either for the original debt or upon the judgment ; Bank of Australasia v. Harding, 9 C. B. 661 ; Bank of Australasia v. Nias, 16 Q. B. 717 ; Kelsall v. Marshall, 1 0. B. N. S. 241 ; Van- (juclin V. Bouard, 33 L. J. C. P. 79. Cases as to And in Bullock v. Caird, L. K. 10 Q. B. 276, which was an action on a contract, a plea was held bad which alleged that the contract was made by the plaintiff, in Scotland, with a Scotch firm, and was to be performed wholl}' in Scotland, and that by Scotch law it was a condition prece- dent to the individual liability of the defendant as a member of the firm, that the firm, or the whole of the partners jointly, should first have been sued. The Queen's Bench held that, in an English court, non-joinder of the other partners was merely ground for a plea in abatement, not for one in bar, that the uuitters alleged in the jjlea were mere matter of procedure, and that the plea was bad. In Copin v. Adamsnn, 1 Ex. D. 17, the defendant was a shareholder in a French company, the statutes and pro- visions of rthicli provided that, in case of litigation between a shareholder and the rest of the company, the shareholder's domicile should be in Paris, and that in default thereof service at a public office should be good. In the action, which was on a French judgment, the above facts, together with the allegation that by Fi'ench law the defendant was bound by the company's statutes, were held a good answer to a plea that the defendant was not domiciled within the jurisdiction of France, lun- a native of France, nor served witli process within tlie I'rcuch jurisdiction during the original French suit. A plea to an action for an assault that it was committed in a I'nicign c(nuitry, where damages are not recoverable in r(!spect of it until certain penal proceedings have been com- menced and determined there, goes only to ^jrocedure ; Scott v. Snjniour, 1 J[. it C. 219. MOSTYN V. FABRIGAS. 621 On the same principle Lord llomillv refused to give priority in an administration suit in this country to tlie claim of a foreign creditor, although the debt, which liad been contracted in Venezuela, had been registered, so as to acquire, according to the law of that country, a priority in the distribution of the assets ; Pardo v. Bimiluim, G Eq. 485. And so in Ex p. Melhoitrn, 6 Ch. 04, a wife was allowed to prove against the estate of her husband, under an English bankruptcy, as a creditor in respect of a marriage contract, pari passu with the other creditors ; although, b}' the law of Batavia, where the contract was made, it would have had, i'ov want of registration, no effect with regard to third parties : the court holding that the effect of this law was only to give the other creditors priority over the wife, and that all questions of priority must be determined by the lex fori. In Broivti v. Thornton, 6 A. & E. 185, a charter-part}' Evidence was entered into at Batavia. According to the law prevail- 8°^';''"®*^ "^y . . lex fori. ing there, such instruments are entered in a public book, which is the only evidence of their contents in that colony ; a public notary makes two copies from the book, and de- livers one to each party, and these are evidence of the original in all Dutch courts except Batavia. It was held that such copies are not evidence of the original in this country. The courts here will not adopt rules of evidence from foreign courts ; Appleton v. Brdi/hrooh, 2 Stark. 6, 6 M. & S. 34 ; Black v. Braijhrooh; 2 Stark. 7, 6 M. & S. 39 ; see Abbott v. Abbott, 29 L. J. Mat. 57 ; Bain v. Ultitcltaren B. Co., 3 H. L. C. 1. In Ttdloch v. Hartlci/, 1 Y. & C. 114, Knight-Bruce, V.-C, is supposed to have dej^arted from this rule, on the ground that the property in litigation was real property ; but he does not appear to have intended to lay down any exception to the rule so wide as the alleged ground of his decision might suggest. See Yates v. TJiotnson, 3 CI. & F. 544. In Hicks v. Powell, 4 Ch. 741, the court declined to Iiulian legis- enforce an unregistered charge on real estate in India, an ^ot mere law Indian statute having enacted that no such charge on real of evidence, estate in that country should, unless duly registered, "be received in evidence in any civil proceeding in any court, or be acted on by any public officer ; " Lord Hatherley holding that "it would be a narrow construction, regard being had to the whole Act, to say that the above provision related simply to the question of evidence." 622 MOSTYN V. FABKIGAS. Where to an action on a bottomry bond it was j)leaded that the bond was bad because the master had omitted to communicate with the cargo owner before liypothecating the cargo, the C. A. held that the necessity imposed by Enghsh law for doing so was not merely evidence so as to be matter of procedure. " The manner of proving facts," said Brett, L.J., "is matter of evidence and to my mind is matter of procedure, but the facts to be proved are not matters of procedure ; they are the matters with which the pro- cedure has to deal ; " The Gaetano and Maria, 7 P. D. 137, 144. Fourth section The provisions of section 4 of tlie Statute of Frauds have Frauds held to heen held only to affect the procedure in actions on con- affect pro- tracts; therefore a contract made between a British and a French subject in France, and to be performed there, was held to be unenforceable here, because it was not to be performed within a year from the making of it, and was not in writing ; Leroux v. Broicn, 12 C. B. 801. In Willidms V. WJieeler, 8 C. B. N. S. 316, and Gibson v. Holland, L. R. 1 C. P. 8, AVilles, J., expressed dissatisfac- tion with this decision ; see also 2)er Field, J., Bawlei/ v. Rawleij, 1 Q. B. 1). 461 ; but it was recognized by Brett, L.J., in Britain v. Bossiter, 11 Q. B. 1). 128, and by Lord Selborne in Maddisoti v. Alderson, 8 App. Cas. 474 ; and in the latter case, Lord Blackburn said, " I think that it is now finalh' settled that the true construction of the Statute of Frauds, both the 4th and 17th sections, is . . . to render the kind of evidence required indispensable, when it is sought to enforce the contract." In Adams v. ClutterJntck, 10 Q. B. D. 403, an action was brought for the breach of a stipulation in a j^arol lease, made in Enghuid, but good according to Scotch hiw, of the exclusive right of shooting over a Scotch moor. Cave, J., held that it was no defence that the lease was not under seal, according to the requirements of English law, and considered such requirements to be part of the lex loci, and not of the lex fori. Mode of ]n the judgment in the principal case it is stated {ante, aSCOrtuiuiut' rc,n\ x1 i. . 812; but, vontva, see llristoiv v. Sequerille, 5 Exch. 275, a decision which was followed in The Goods of BonelU, 1 P. D. 69, where the evidence as to Italian law of a Mr. Reeve, who described himself as a certified special pleader, and as familiar with Italian law, was rejected : and again in Cartwright v. Cavt- irrif/lit, 26 W. Pt. 684, where the evidence of an English counsel as to Canadian law was similarly rejected. If an expert witness refers to a foreign code, the court may look at the code to ascertain its meaning ; Coneha v. Mio-ricta, supra . By the 24 Vict. c. 11, superior courts of hiw nuiy, for the purpose of ascertaining the law of a foreign State, send a case to a court of that State. In the absence of proof to the contrary, foreign law is presumed to be the same as our own. See L, R. 1 Q,. B. 129. As to when it may be a ground for a stay of proceedings When pen- in an action here that another action bv the i)laintitf against '^^fP^ ^\ , / ^ action abroad the defendant for the same cause is pending abroad, see held a ground McHenry v. Lewis, 22 Ch. D. 397; Norton v. Florence ^°;;,JX-s. Land Co., 7 Id. 332 ; Peruvian Guano Co- v. Borlciroldt, 23 LI 225 ; Hijman v. Helm, 24 LI. 531 ; The Christians- horfi, 10 P. D. 141. The dictum attributed to Lord Mansfield, in ^L)stt/n \. Position of a Fahrigas, ante, p. 585, viz., " The governor is in the nature ^'°Jq1™°^^^ of a viceroy, and therefore locally, during liis government, no civil or criminal action will lie against him ; the reason is, because upon process he would be subject to imprison- ment," was dissented from in HUl\. Bigge, 3 Moo. P. C. 465, where Lord Brougham, in delivering the judgment, sug- gested that Lord Mansfield's expressions may have been somewhat altered in the report. In Hill v. Bigge, to an action of debt brought in a colonial court against the governor of Trinidad, a plea that he was the governor was held to afford no defence ; but Lord Brougham, adverting to the inconvenience suggested by Lord Mansfield, said : "It is not at all necessary that in lioktiug a governor liable to be sued we should hold his person liable to arrest while on service ; that is, while resident in his government. It 624 MOSTYN V. FABRIGAS. is not even necessary that we should meet the suggestion of his goods in all circumstances heing liable to he taken in execution — though that is liable to a different considera- tion." In Musgrave v. Pulido, 5 App. Cas. 102, 111, which was an action brought in a colonial court against the Governor of Jamaica, it was laid down in the judgment of the J.C. that " the governor of a colony (in ordinary cases) cannot be regarded as a viceroy; nor can it be assimied that he possesses general sovereign power. His authority is derived from his commission, and limited to the powers thereby expressly or impliedly entrusted to him. Let it be granted that for acts of power done by a governor under and within the limits of his commission, he is protected, because in doing them he is the servant of the Crown, and is exercising its sovereign authority ; the like protection cannot be ex- tended to acts which are wholly beyond the authority confided to him. Such acts, though the governor may assume to do them as governor, cannot be considered as done on behalf of the Crown, nor be in any proper sense acts of state. When questions of this kind arise, it must necessai'ily be within the province of municipal courts to determine the true character of the acts done by a governor, though it may be that, when it is established that the par- ticular act in question is really an act of state policy done under the authority of the Crown, the defence is complete, and the courts can take no farther cognizance of it." Position In Luhy v. Wodehouse, 17 Ir. C. L. R. 618, it was held of Lord- ^j ^ ^Yxe Lord Lieutenant of Ireland was not liable, while LRutiniiiit of rti 1 1 • X • 1 r> Iieland. he continued in his oflhce, to be sued m an Irish court of law for an alleged tortious act done by him in his official capacity : and, on the motion of the Attorne^'-General for Ireland, the court, upon affidavits, and relying on the authority of the principal case, and Taudy v. Westmoreland, 27 St. Tr. 1246, directed that a writ issued against the Lord Lieutenant in respect t)f such an alleged act should be summarily taken off the file. In this case "it appeared that the acts complained of were jxditical acts done by the Lord Iii(!utciiant in his ollicial ca})acity, and they were assumed to l^c witliiii llic limits of the authority delegated to him by the Crown. Tlio court appears to have thought i\n\t, under the rireiiinsfdiirrs, no nction would lie agiiinst the Lord Lifutcniiiil ill lichiiid, jiiid upon tlic facts l)rought to their MOSTYN V. FABRIGAS. 625 notice it may well be that no action would have lain against him anywhere ; " 5 App. Cas. Ill, 112. With regard to the rights and liability of sovereign princes Rights and themselves to sue and be sued in the courts of this country, so\4j.yign the general rule deducible from the cases is that in respect iniuces. of acts of state they can neither sue nor be sued. Personally a foreign sovereign cannot be sued at all, unless, indeed, he has in fact submitted to the jm'isdiction ; Migliell v. Sultan of Johore, (1894) 1 Q. B. 149 ; and though it was said, in lite CJiarkieh, L. R. 4 A. & E. 59, that in some cases pro- ceedings in rem might be instituted against his property in this country, the dicta to this effect were overruled in the C. A., in The Parlement Beige, 5 P. D. 197. In certain cases a petition of right may be instituted by a British subject against the Crown; "but it seems clear to us," said Lord Coleridge, delivering the judgment of the C. A., in Uustumjec v. The Queen, 2 (,). B. D. 69, "that in all that relates to the making and performance of a treaty with another s6vereign, the Crown is not, and cannot be, either a trustee or an agent for any subject whatever." The duty, his lordship added, of the English sovereign in such a case " was a duty to do justice to her subjects, according to the advice of her responsible ministers ; not the duty of an agent to a principal, or of a trustee to a cestui que trust. If there has been a failure to perform that duty, which we only suggest for the sake of argument, it is one which parliament can and will correct ; not one with which the courts of law can deal." The liability of sovereign princes to be sued in the courts Immunity of of foreign countries underwent a full discussion in Duke of sovereign Y . " pnnces trom Brunswick v. King of Hanover, 6 Beav. 1, where the defen- proceedings in dant was at once a king of one country and a subject of that in which he was sued. Lord Langdale, in a judgment which exliausts the subject, stated his opinion : 1. That the King of Hanover was " exempt from all liability of being sued in the courts of this country for any acts done b}' him as King of Hanover, or in his character of sovereign prince ; " but that, " being a subject of the Queen," he was "liable to be sued in the courts of this country in respect of any acts and transactions done b}' him, or in which he may have been engaged, as such subject." 2. That " in respect of any act done out of this realm, or any act as to which it may be doubtful whether it ought to be attributed to the character of sovereign or to the character of subject, S.L.C. — VOL. I. 40 foreign courts. 626 MOSTYN V. FABKIGAS. Brunswick v. -Hanover. ihinden v. Brunswick. IVadfiirorth v, Spain. The Charkich. it ought to be presumed to be attributable rather to the character of sovereign than to the character of subject." 3. That in a suit in the Court of Chancery against a sovereign prince who is also a subject, "the bill ought upon the face of it to show that the subject-matter of it constitutes a case in which a sovereign prince is liable to be sued as a subject." And the decree, allowing the demurrer in that case to a bill seeking an account against the King of Hanover as guardian of the plaintiff, to which office the king, upon his attaining the throne of Hanover, had been appointed under an arrangement springing out of the depo- sition of the duke pursuant to a decree of the Germanic Diet in 1830, was affirmed b}^ the H. L. on appeal (2 H. L. C. 1), on the ground that a sovereign is not liable to be sued in respect of matters of state. In Nabob of Arcot v. East India Co., 3 Br. C. C. 291, 4 Id. 180, 2 Ves. 56, see Beames, El. PL 73, the Court of Chancery refused to entertain a suit arising out of trans- actions of state between sovereign powers, though the defendants were subjects of this country. In Munden v. Duke of Bi'unswick, 10 Q. B. 656, it was held to be no plea to an action on an annuity deed that the defendant was a sovereign prince at the time it was made without showing either that it was an act of state or that the defendant retained his sovereign character at the time of action brought. " But the decision assumes that, if the plea had been drawn otherwise, and had contained all the material allegations, it would have been a good plea ; " pei' Wills, J., Mighell v. Sultan, of Joliore, (1894) 1 Q. B. 149, 156. In Wadsu-orth v. Queen of SjMiin, 17 Q. B. 171, and De Haber v. Queen of Portugal, Id. 196, proceedings in foreign attachment instituted by holders of Spanish and Portuguese bonds against property belonging to those sovereigns in their public capacity were stayed by prohibition. In support of the general principle of the immunity of sovereign princes and of their property in respect of acts of state, see further Gladstone v. Ottoman Bank, 32 Ij. J. Ch. 228 ; Gladstone v. Musurus Bey, Id. 155 ; Smith v. Wefjuelin, 8 Eq. 198 ; Doss V. Sec. of State for India, 19 Eq. 509 ; Twycross v. Dreyfus, 5 Ch. D. 605 ; Vavasseur v. Krupp, 9 Id. 351 ; The ConstitU' tion, 4 P. I). 39. In The Charkich, L. K. 4 A. .1- E. 59, Sir R. Phillimore elaborately discussed the subject of the immunities of foreign MOSTYN V. FABRIGAS. 627 princes in this respect, and laid down that the courts of tliis country liave jurisdiction to entertain proceedings instituted in rem, thougli the property he that of a foreign sovereign, and in some cases, it would seem, even though such property may be " of a public character, as for instance a ship of war : " and further, that a sovereign may, by assuming the character of a trader, waive in respect of such trading the privilege which he enjoys generally as a sovereign, and render himself liable to the jurisdiction of an English court. The Queen's Bench refused to interfere in this case by pro- hibition to the Court of Admiralty ; TJie Charkich, L. R. 8 Q. B. 197. The above dicta, however, were unnecessary to the deci- sion, as the learned judge further held that the Khedive of Egypt, to whom the Ciiarkieh belonged, was not a foreign sovereign so as to be entitled to the privilege claimed. And in The Parlemcnt Beige, 5 P. D. 197, the C. A., after full The Parh- consideration, overruled them, and held that foreign sove- "^ '^ ''^ ' reigns enjoy the same immunity from proceedings in rem as from actions in persoriam, and that their property is equally privileged in this respect whether ships of war or trading vessels. The subject will be found very fully discussed in the interesting and exhaustive judgment delivered in this case by Brett, L.J. In Mighcll v. Sultan of Johore, (1894) 1 Q. B. 149, it was Mighellv. held that a foreign sovereign who, whilst he was residing in " °^^' this countr}^ had, as a private individual, under an assumed name, agreed to marry the plaintiff, could not be sued for a breach of such agreement. It was con- tended that, by assuming the character of a private individual, he had waived his rights as a sovereign and rendered himself subject to the jurisdiction. But it was held, in the words of Lopes, L.J., that " the only way in which a sovereign can submit to the jurisdiction is by a submission in the face of the court, as, for example, b}' appearance to a writ." In Strousherg v. Republic of Costa Rica, 29 W. R. 125, James, L.J., after stating that " it is a violation of the respect due to a foreign sovereign or state to issue the process of our courts against such sovereign or state," mentioned two excejitions, if the}' can be called exceptions. Exceptions to to this rule. First, that " where a foreign sovereign or state ^Jbithlt pro- comes into the courts of this country for the purpose of ceediugs obtaining some remedy, then by way of defence to that pro- r^^n^^and^^' 40 2 states. 628 MOSTYN V. FABRIGAS. ceeding the person sued here may file a cross claim against that sovereign or state for enabling complete justice to be done between them." Secondly, he referred to " the case in which a foreign sovereign may be named as a defendant for the purjjose of giving him notice of the claim which the plaintiff makes to funds in the hands of a third person or trustee over whom this court has jurisdiction, and who alleges that the foreign sovereign has also some claim upon the funds in question. These," added his lordship, " are the only exceptions." Thus — to illustrate the first exception and the way in which it has been enforced in our courts — if a foreign sove- reign sue here, and a cross action be brought, our courts will stay proceedings in the original action until the foreign sovereign name a proper person to be made a defendant for the purpose of discover}' ; see Repnhlic of Peru v. Weguelin, 20 Eq. 140 ; Rejntblic of Costa Rica v. Eiianger, 1 Ch. D. 171 ; and, in default of a sufficient affidavit of discovery being made, will dismiss the proceedings ; Rejyublic of Liberia V. Roye, 1 App. Cas. 139. Security for costs ma}- be ordered ; Republic of Costa Rica v. Erlanr/er, 3 Ch. D. 62. Instances exemplifying the second exception will be found in Gladstone v. Mnsurus Bey, 32 L. J. Ch. 155, where a court of equity granted an injunction restraining the Bank of England from paying over, except under direction of the court, a sum of money deposited by the plaintiffs as caution- mone}' for the fulfilment on their part of a concession granted to them by the Turkish government : and in Larlviere v. Morgan, 7 Ch. 550, where Lord Hatherley affirmed a decree of Malins, V.-C, by which it was directed that a fund de- posited with bankers in this country by the French govern- ment for the purpose of a contract made by them with the plaintiff should be applied in i)ayment of his claims under the contract. In neither of these cases did the foreign government appear. The judgment in Lariviere v. Morgan was reversed in the H. L. (L. II. 7 H. L. 423) ; but upon the ground that the facts showed only a personal under- taking by the bankers, not any trust or assignment of a trust-fund, so as to give the court jurisdiction. The same distinction was dwelt upon in Tirycross v. Dreyfus, supra, aii.l ill Tiir Parhment Beige, 5 P. I), p. 201. Both these cases are distinguished on the ground that in each of them tliere was a trustee who could be sued in our courts. Foreign sovc In the case of a suit by a foreign sovereign in amity with MOSTYN V. FABIUGAS. 6:i9 US, although the foreign sovereign is entitled to hhc. in our reign may sue ,. , 1 • 1 Ti T 1 1 • • 1 i Iiere for courts tor wrongs clone to inni by Jiinglisn subjects without private authority from the English government in respect of pro- "I'ongs, not ', . . / . ? . , . .,..., , . I'll- invasions l)erty belonguig to him either m ins individual or his of his corporate capacity, yet he cannot maintain a suit here for prerogative. invasions of his prerogative as reigning sovereign. See the judgments and the cases collected in Emperor of Austria v. Dai/, 30 L. J. Ch. 690 ; King of Portugal v. liusseU, 'M L. J. Ch. 34 ; Prioleau v. U. S. of America, 2 Eq. 659 ; U. S. of America v. Wagner, 2 Ch. 582 ; U. S. of America V. McRae, 8 Eq. 69. Nor can the foi'eign sovereign sue in the name of his ambassador ; Penedo v. JoJiuson, 22 W. li. 103. The status of a foreign sovereign may be proved by a Proof of certificate of the Foreign or Colonial Office, and such cer- ^''^*^"^- tificate is conclusive on the subject ; MigJtell v. Snltau (f Johore, (1894) 1 Q. B. 149. As. to how far an English court will entertain an action Actions be- by an E^ngiish subject engaged in the service of a foreign offi!^ials°^"^'^ government against another official in the same service lor a libel contained in a report made by the defendant in his official capacity, both plaintifi' and defendant being British subjects, see Hart v. Gumpach, L. li. 4 P. C. 439, 464. Upon the same principle which exempts sovereigns from Immunity of liability to be sued in respect of acts of state, seems to rest aetsauthorised the immunity of a soldier against actions by foreigners for by their acts done by him in a hostile manner in the name of the " government which he serves, provided those acts be either authorised by an actual command, or ratified b}' a subse- quent approval of the government : to such acts the maxim, respondeat superior, seems to apply in its widest sense ; and if any injmy be infiicted by them, (if redress be denied by the government), there is no remedy but an appeal to arms ; see Viii. Abr., Prerogative (L. a) : Elphinstone v. Bedree- chund, 1 Knapp, P. C. 316 ; Dohree v. Napier, 2 B. N. C. 781 ; Baron v. Denman, 2 Exch. 167 ; Paradine v. Jane, Style, 48 ; R. v. Lesley, 29 L. J. M. C. 97 ; Sec. of State for IndiA V. Kamachee Boye Sahaha, 13 Moo. P. C. 22. On a question whether a government officer was liable to Government the plaintiffs (who were Indian subjects of her Majesty) for °)iii\y for^^' an act done by him in his official capacity, the Privy Council official acts. laid down, that "if the act which he did was in fact wrong- ful as against the plaintiffs, and produced damage to them, they must have the same remedy by action against the doer, 680 MOSTYN V. FABRIGAS. Liability inter tc of members of a hostile expedition. Ambassador and members of embassy exemjjt from suit. whether the act was his own spontaneous act and unautho- rised, or whether it was done h}' the order of the superior power. The civil irresponsihiUt}'' of the supreme power for tortious acts coukl not be maintained with any show of justice, if its agents were not personall}' responsible for them ; in such cases the government is morally bound to indemnify its agent, and it is hard on such agent if this obligation is not satisfied ; but the right to compensation in the party injured is paramount to this consideration ; " Rogers v. Bajendro Dutt, 13 Moo. P. C. 209, 236; see per curiam, Feather v. The Queen, 35 L. J. Q. B. 200, 209; Tohin V. The Queen, 33 L. J. C. P. 199. See O'Byrne v. Hartington, I. K. 11 C. L. 445, 453, as to the non-liability of a superior officer for a legal order illegally carried out ; and see Grant v. Sec. of State for India, 2 C. P. D. 445, as to the non-liability of a government official for the dismissal of a military officer, or for the publication of such dismissal in the Gazette. As to the non-liability of a government official on a con- tract made by him for the public, see O'Grady v. Cardwell, 21 W. R. 340 ; Palmer v. Hutchinson, 6 App. Cas. 619. As to the liability inter se of persons joining in a hostile expedition for acts done in obedience to the lawful orders of government officers sent out in command of the expedi- tion, see Hodgkinson v. Fernie, 2 C. B. N. S. 415. As to an action for acts done abroad b}' a commanding officer in his official capacity, such as reducing a non-commissioned officer to the ranks, see Barwis v. Keppel, 2 Wils. 314. An ambassador is entitled to absolute exemption from suit in the courts of the country to which he is sent ; Mag- dalena St. Nav. Co. v. Martin, 2 E. & E. 94; Gladstone v. Miisiirus Beg, 32 L. J. Ch. 155 ; Sec. of State for India v. Kamacliee Boge Sahaha, 13 Moo. P. C. 22 ; Parkinson v. Potter, 16 (^). 1>. D. 152; see 7 Anne, c. 12; and no writ can be issued against him, either whilst he is actually accredited to the sovereign, or during a reasonable time, after his recall, for him to wind up liis official business and depart; Mnsanis Beg v. Gadhan, (1894) 2 g. B. 352. The same principle applies to a secretary of legation ; Taglor v. Best, 14 C. B. 487 ; and to a bona fide member of the eiiiliassy ; Macartney v. Garhtift, 24 Q. B. D. 368 ; even tliougli he be a liritish subject; Id.; but see per Lord Esher, Be Cloete, 65 \i. T. 102 ; unless he has been received subject t(; an express condition that he shall be MOSTYN V. FABRl(iA8. 631 subject to the jurisdiction of the courts of the country; Id. In He Cloete, supra, the principle was held not to apply to the case of an honorary attache who, through inadvertence on the part of the ambassador, had obtained his appoint- ment for the puri)0se of taking advantage of the protection. The privilege whilst it applies prevents the Statute of Limitations from running ; Miisunis Bey v. Gadhan, supra. It is waived by appearance ; Taylor v. Best, supra. As to servants of the ambassador who engage in trade, see 7 Anne, c. 12, s. 5 ; and as to the registration of such servants, see s. 6 of the same Act. With regard to judges, Lord Mansfield says, ante, p. 584, Immunity of that " if an action be brought against a judge of record for judicial acts an act done bj' him in his judicial capacity, he ma}' plead that he did it as a judge of record, and that will be a com- plete justification." It is now settled that a judge is not liable for a judicial act which was within his jurisdiction, even though he did it maliciously ; Fray v. Blackburn, 3 B. &' S. 576 ; Scott v. Stansfield, L. R. 3 Ex. 220 ; Anderson v. Gorrie, (1895) 1 Q. B. 668 ; see also Barnardi- ston V. Soame, 6 Howell, St. Tr. 1063, 1096; Gelen v. Hall, 2 H. & N. 379 ; Kemp v. Neville, 10 C. B. N. S. 523, 549 ; and the other cases cited in the notes to Ashhy v. White, ante, pp. 265, 283. Even if the act was outside his jurisdiction, the judge is not liable, unless he knew or had the means of knowing, from the facts before him, of his want of jurisdiction ; Calder v. Ilalket, 3 Moo. P. C. 36, 76 ; Houlden v. Smith, 14 Q. B. 841 ; see Lowther v. Radnor, 8 East, 113, 119 ; Gahan v. Lafitte, 3 Moo. P. C. 382 ; Willis v. Maclachlan, 1 Ex. D. 376. CREPPS V. DURDEN ET ALIOS. TRINITY.— n GEO. 3, B. R. [reported 2 cowi'. 640.] A person can commit but one offence on the same day, by ' ' exercising his ordinary calling on a Sunday," contrary to the 29 Car, 2, c. 7. And if a justice of peace proceed to convict him in more than one penalty for the same day, it is an excess of jurisdiction for which an action will lie, before the convictions are quashed (o). This was an action of trespass brought by the plaintiff against the defendant, for breaking into his house and taking away his goods, and converting them to his own use ; to this the general issue was pleaded, and the cause came on to be tried at West- minster before Lord Mansfield, at the sittings after Easter term, 1777 ; when a verdict was found for the plaintiff, for three several sums of five shillings each, and costs 40s., subject to the opinion of the court upon the following case: "That the plaintiff was convicted of selling small hot loaves of bread, the same not being any work of charity, on the same day (being Sunday) by four separate convictions, which were as follows : ' Westminster to ivit. Be it remembered, that on the 10th of November, 1776, Peter Crepps, of, &c., baker and Salter of bread, is lawfully con- victed before me, Jonathan Durden, one of his Majesty's justices of the peace for the said city and liberty of Westminster, for unlawfully doing and exercising certain worldly labour, business, and work of his ordinary calling of a baker in the parish afore- said, by selling of small hot loaves of bread, commonly called rolls, the same not being any work of necessity or charity, on the said 10th of November, being the Lord's day, commonly c.'illod Sunday, contrary to the statute in that case made and provided ; for whicli offence I, the said Jonathan Durden, have (a) Secus, as to this latter point, .since nulis, p. 642. the 11 & 12 Vict. c. 44; see jmt, in CREPPS V. BURDEN £T ALIOS. 63:5 adjudged, and do hereby adjudge, the said Peter Crepps to huvf forfeited the sum of five shilhngs.' " The tliree other convictions were rcrhatim the same witliout any variation. The case then proceeded to state, that the defendant Durden issued the four warrants, afterwards stated, to the other defendants who by virtue of those warrants levied the four penalties of five shillings each, and the expenses. The first of these four warrants ran thus: — "Westminster to wit. To the constables of St. James's, in the city and liberty of West- minster. Whereas information has been made before me, Jonathan Durden, one of his Majesty's justices of the peace for the city and liberty of Westminster, that Peter Crepps, baker, of, &c., did on the 10th day of November, 1776, being the Lord's day, commonly called Sunday, exercise his trade and ordinary calling of a baker, by selling hot loaves of bread, contrary to the statute in that case made and provided : and whereas the said Peter Crepps has been duly summoned to appear before me, to answer to the s.iid information, but has contemptuously refused to appear to answer the contents thereof ; and whereas, upon full examination, and upon the oath of J. H., the said Peter Crepps was lawfully convicted before me of the offence aforesaid, whereby he has incurred the penalty of five shillings, pursuant to the statute in that case made and provided ; therefore, &e., &c." The words of the other three warrants were ccrhatini the same. The first question reserved was, whether in this action, and before the convictions were quashed, an objection could be made to their legality? If no objection could be made, then a nonsuit was to be entered. But in case an objection to their legality might be made, then the question was, whether the levy under the three last warrants could be justified "? If not justifiable, a verdict was to be entered for the plaintift", with 15s. damages and 40s. costs; if justifiable, then a verdict was to be entered for the defendants. Mr. Bailer, for the plaintifi', as to the first point, insisted that, wherever a conviction is in itself clearly bad, it is open to the party to take objection to it in an action against the justice ; and it is no answer on his part to say that the conviction is not quashed, or in force ; because it is incumbent upon him to show 634 CREPPS V. DURDEN ET ALIOS. (Argument.) the regularity of his own proceedings. That there \Yere several cases to this purpose ; and though they were decisions at nisi jn-ius, yet, as they were uniform in laying down the same doctrine, they ought to have considerahle weight in this case. The first he should mention was Hill v. Bateman, 1 Str. 711 ; not for the principal matter adjudged, but because it was agreed on all hands, in that case, as a settled point, "that, in all actions against justices of peace, they must show the regularity of their proceedings." He added that he had a manuscript note of the same case to the same purport. In a case of Moult v. Jennings, coram Eyre, C. J., upon trespass and false imprisonment against the defendant, and the general issue pleaded, it appeared that the plaintiff had been convicted of swearing ; and Eyre said, if the nature of the oaths had not been specified in the conviction, so that they might appear to the court, the conviction would have been void. In Stanhurij v. Bolt, coram Fortescue, J., Trin. 11 G. 1, ui3on trespass for taking a brass pan, and false imprison- ment, it did not appear that the plaintiff had been summoned ; and the conviction was adjudged void for that reason only. In Coles's Case, Sir William Jones, 170, it was held by the whole court, " that, if a justice does not pursue the form prescribed by the statute, the party need not bring error, but all is void, and coram nonjiuUce." There are other authorities in which it has been held that an action will lie, even though the conviction is good in point of form, if it is not supported by the truth and justice of the case. There was one in Shropshire, before Gould, J,, where the plaintiff had been convicted upon the game laws, and the conviction itself was good in point of form ; but the party was not, in truth, an object of the game laws ; where- upon Gould directed the jury to find for the plaintiff, which they accordingly did. There was another case in Lancashire, before Mr. Justice Gould, to the same effect. In criminal cases, it is clear that the C(jnviction being good in point of form is no protection to the justice; and if not, why should it be so in a civil action? If he convict illegally, he ought not to be sheltered, and an action is tlie only mode of redress to the party injured. But, if llic f()i-iiiiility of the conviction is to bo an answer to the action, the piu-ty injui-cd would be witboiit i-edrcss, where he CKEPPS V. DUE DEN ET ALIOS. 635 would be most entitled to it; because the caution of the justice, to be correct in form, would increase in proportion to his inten- tion to act illegally. In l>vuclde--iha)ik v. Smith, 2 Burr. 057, every act previous to the ct)nviction is set out, as well as the conviction itself. If this case had happened before the stat. 7 Jac. 1, c. 5, which enables justices of peace to plead the general issue, and give the special matter in evidence, the defen- dant must have specially set forth every stage of the proceedings upon the record, and the omission of any one fact would have been fatal : or, if upon the face of the record it had appeared the conviction was illegal, it would have been a good cause of demurrer. Since the statute, his defence must be equally good in evidence : for the statute does not vary the law ; it is only meant to ease the justice from the difficulty and risk of special pleading. Even in cases where the legislature gives a summary form of conviction, and where no summons is necessary, the justices must pursue the form prescribed, or it will be fatal. Secondly, upon the merits: the words of the stat. 29 Car. 2, c. 7, are, "that no tradesman or other person shall do or exercise any worldly labour, business, or work of their ordinary calling on the Lord's day, works of necessity and charity only excepted." In Rex V. Cox, 2 Burr. 786, the court held, "that baking puddings and pies was within the exception : " and, if so, why should not the baking rolls be so too '? But what is decisive is, that the stat. 29 Car. 2, c. 7, gives no summary form of conviction ; whereas the convictions produced barel}' state that the plaintiff was convicted, without any information, summons, appearance, or evidence being stated. In point of form, therefore, all four are bad. Lastly, supposing they were good in form, the three last are an excess of the justice's jurisdiction; for the offence created by the statute is, " exercising his calling on the Lord's day." If the plaintiff, therefore, had continued bakmg from morning till night, it would still be but one offence. Here there are four convictions for one and the same offence ; consequently, as to three, there is an excess of jurisdiction; an I if so, all is void,, and coram non judice : and an action will lie, not only against the justice, but likewise against the officers. To this point he cited Hardres, 484, and concluded by praying judgment for the plaintiff. 636 CREPPS V. DURDEN ET ALIOS. (Argument.) Mr. T. Coiuper, contra, for the defendant, contended : 1. That by the bare production of the conviction at the trial the cause was at an end, and the court estopped from any- further inquiry. That it was the general apprehension and prevailing opinion of the profession, founded in constant practice, that a conviction in a matter of which the justice had jurisdic- tion, must be removed by certiorari and quashed, before it can be questioned at nisi prius. If he has no jurisdiction, no doubt but all is coram non judice and void. But here the justice had jurisdiction ; and if so, with deference to the opinion of Mr. Justice Gould in the case tried before him in Shropshire, the conviction, as to the matter of fact contained in it, is conclusive in favour of the justice in an action, though it is not so in an information. If it were not, instead of the mischief to be appre- hended from the oppression of the justice, no one would act in the commission. 2. As to the objections which have been taken to the convic- tions in point of form, he said, it would be time enough to answer them when the convictions were removed and stood in the paper for argument. At present it was sufficient to observe that they continued as so many judgments on record, and, as such, conclusive, till reversed by appeal, or quashed by this court. He agreed the stat. 7 Jac. 1, c. 5, did not vary the law ; but insisted that, before that statute, it would have been a good plea for the defendant to have stated that the plaintiff was convicted, &c., as in this case ; and, if the plaintiff had traversed the conviction, the defendant might have demurred. The sole ground and object of taking away the certiorari, in the several acts of parliament for that purpose, was to prevent vexatious suits against justices for mere informalities in their proceedings. But they still remain liable to an information if they wilfully act wrong. This court has often lamented, when obliged to quash a conviction for want of form, because it opens a door to an action. As to this being but one continued offence, it might be, that it was carried on at four different places ; for there is evidence of four (lifforent acts, and the court will not presume the contrary against the justice. But, if the nature of the offence is such, that it cf)nld only bo committed once in the same day, still the CREEPS V. DUllDEN KT AI-IUS. G37 jjlaintiff has no remedy, while the convictions are in force, but by removing them into this court to be quashed for illegaUty. Lord Mansfield. — May there not be this point, that the justice had no jurisdiction, after convicting the plaintiff in the first penalty ? The act of parliament gives authority to punish a man for exercising his ordinary calling on Sunday. The justice exercises his jurisdiction, by convicting him in the penalty for so doing. But then, he has proceeded to convict him for three other offences in the same day. Mr. Coicpcr. — If he has done so, it :s only a ground for quashing the convictions; but no priority appears to give legality to one in preference to the other. Lord Mansfield. — This point you agree in : that, if the justice had no jurisdiction, it is open to inquiry in an action. Now, if there are four convictions for one and the same offence committed on one and the same day, three of them must necessarily be bad ; ancf, if so, it does not signify as to the merits of the action which of the four is legal, or which illegal. I do not remember that at the trial it was contended the plaintiff would be entitled to recover if the convictions were informal ; or that any objection was taken to their formality there. The single question intended to be tried was, whether there could be more than one penalty incurred for exercising a man's ordinary calling on one and the same Sunday ? As to that there can be no doubt : the only doubt was, whether that objection could be taken at the trial before the conviciiuns ireir qnaslied. In the extent in which the argument upon that point has proceeded, it is a matter of considerable consequence ; and, as a general question, I should be glad to think of it. Aston, J. — The court will never grant an information, unless the conviction is quashed. Hex v. Heber, 2 Str. 915. As to the general question before the court, suppose the justice were to convict for a single offence, where no offence at all had been committed, would not an action lie in that case? If it would, why not in this, where there are four convictions for one and the same offence ? It seems to me that the baking every roll might as well have been charged as a separate offence. Cur. adv. cult. 638 CEEPPS V. DURDEN ET ALIOS, (Judgment.) Afterwards, on Wednesday, June 18th, in this term, Lord Mansfield, after stating the case at large, delivered the unani- mous opinion of the Court as follows : — Upon the trial of this cause, no objection was made to the formality of the convictions: I doubt whether they were read, and for this reason : because, by the state I have of them, they appear different from the warrants ; for the convictions take no notice of any summons (h), nor of any informations, nor of any evidence (c) upon oath given ; though the warrants take notice of a summons, of the defen- dant's not appearing to that summons, of an information laid, and evidence given upon oath. This objection would have gone to all the four cases equally, but at the trial no objection what- ever was made to the first conviction or warrant. But the ob- jection made was this: that, allowing the first conviction and warrant to be good, the three others were an excess of the juris- diction of the justice, and beyond it ; for that, on the true con- struction of the stat. 29 Car. 2, c. 7, there can be but one offence, attended with one single penaltj^ on the same day. In answer to this it was objected, on the part of the defendants, that no such objection could be taken to the convictions till after they had been quashed in this court ; and that, if a case were to be made with regard to that, it must be taken upon the question, whether, according to the true construction and meaning of the act, the party could be guilty of repeated offences on one and the same day? Therefore, the questions stated for the opinion of the court on the present case are, first, " whether, in this action, and before the convictions were quashed, an objection could be made to their legality ? If the court should be of opinion no objection could be made, then a nonsuit to be entered up ; but in case the objection might be made, then, 2ndly, whether the levy made under the three last warrants could be justified?" The lii'st question is, "whether any objection can be made to the legality of the convictions before they were quashed." In order to see whether it can, we will state the objection : it is this ; that here are three convictions of a baker, for exercising (h) Nor tlifit Lli.! (hfi'iidaiiL ninde do- (c) See Jl. v. Lovet, 7 T. R. 152; R. f;iult ; see Ji. v. AUitujlun, 2 Str. C78 ; v. Thccd, 2Str. 919 ; R. v. Smith, 8 T. R. /:. V. Vcnables, Id. C30 ; R. v. Stone, 1 588. Kasl, (M9. CREPPS V. BURDEN ET ALIOS. 639 his trade on one and the same day ; he having been before con- victed for exercising his ordinary cahing on that identical day. If the act of parhament gives authority to levy but one i)enalty, there is an end of the question, for there is no penalty at common law. On the construction of the act of parliament, the offence is, "exercising his ordinary trade upon the Lord's day;" and that, without any fractions of a day, hours, or minutes. It is but one entire offence, whether longer or shorter in point of duration; so, whether it consist of one or a number of particular acts. The penalty incurred by this offence is five shillings. There is no idea conveyed by the act itself, that, if a tailor sews on the Lord's day, every stitch he takes is a separate offence ; or, if a shoemaker or carpenter work for different customers at different times on the same Sunday, that those are so many separate and distinct offences. There can be but one entire offence on one and the same day ; and this is a much stronger case than that whibh has been alluded to, of killing more hares than one on the same day ; killing a single hare is an offence ; but the killing ten more in the same day Avill not multiply the offence, or the penalty imposed by the statute for killing one. Here, repeated offences are not the object which the legislature had in view in making the statute : but singly to punish a man for exercisino- his ordinary trade and calling on a Sunday. Upon this con- struction, the justice had no jurisdiction whatever in respect of the three last convictions. How then can there be a doubt but that the plaintiff might take this objection at the trial "? '2ndly. With regard to the form of the defence, though the stat. 7 Jac. 1, c. 5, enables justices of peace to plead the general issue, and give the special matter in evidence ; in doing so, it only allows them to give that in evidence, which they must before have pleaded; and, therefore, they must still justify. But what could the justifica- tion have been in this case, if any had been attempted to be set up ? It could only have been this : that, because the plaintiff had been convicted of one offence on that day, therefoi-e the justice had convicted him in three other offences for the same act. By law that is no justification : it is illegal on the face of it ; and therefore, as was very rightly admitted by the counsel for the defendant in the argument, if put upon the record l)y way of plea, would have been bad, and on demurrer must have been 640 CE.EPPS V. BURDEN ET ALIOS. (Judgment.) so adjuclged. Most clearly, then, it was open to the plaintiff upon the general issue, to take advantage of it at the trial. The question does not turn upon niceties ; upon a computation how many hours distant the several bakings happened ; or upon the fact of which conviction was prior in point of time ; or that, for uncertainty in that respect, they should all four be held bad : but it goes upon the ground that the offence itself can be com- mitted only once in the same day. We are, therefore, all clearly of opinion, that, if there was no jurisdiction in the justice, the same might have appeared at the trial : of course, we are of opinion that this objection might have been made, and that the objection itself, in point of law, is well founded. Per Curiam. Postea to be delivered to the plaintiff ((/) . (rf) For iiii analogous case see Brooks V. Glencross, 2 M. & Rob. 62 ; and see II. V. E. Counties R. Co., 10 M. & W. 58. As to the effect of two orders or convictions for the same offence, see Wilkins v. Hemsworth, 7 A. & E. 807 ; Wilkins V. Wright, 3 Tyr. 8.30, 2 C. k M. 193. "The form which the legislature uniformly adopts when the intention is that for each and every violation of an Act of Parliament there shall be a distinct penalty, is to impose a penalty by express words ' for each and eveiy offence';" ^jc/' Polluok, C. B. , A.-G. v. McLean, 1 H. & C. 750, 759. One conviction for several curses on the same day with a cumulative penalty at the rate of so much per curse was held good in R. V. Scott, 33 L. J. M. C. 15. Several convictions for selling pieces of bad meat at the same stall on the same day were held good in Re Hartley, 31 Id. 232. See also Milnes v. Bale, L. R. 10 C. P. 591 ; Apothecaries Co. v. Jones, (1893) 1 Q. B. 89. Subject to 11 & 12 Vict. c. 44, conviction void if on the face of it the jurisdiction or facts defec- tive, or fiefoctivcly stated. Subject to the Justices Protection Act, 1848, a summary of which will presently be given, the rule is the same — w liether the conviction appear on the face of it to be for an offence not within the magistrate's jurisdiction — or to be for an offence within tlie magistrate's jurisdiction, but defective for want of tlie circumstances necessary to a conviction for ili;ii offence; Griffith v. Harries, 2 M. i'^: W. 335; see Laiieaster v. Greaves, 1) B. tt C. G28 ; Morgan v. Hughes, 2 '1'. 11. 225 ; Fcrnley v. Worthimiton, 1 M. & Or. 491 ; Ildvilij V. P^jih', \) V>. k C. 003 ; Groomc v. Forrester, 5 j\I. vV S. 320 ; or of a sufficiently si)ecifi(' statenuMit of them ; Nruwnv V. Hardu-iche, 8 A. kV.. 127; 7i'. v. Read, did. (tl'.l; for, as was ol)served in Luuciinter v. Greaves, though tlie conviction is conclusive ujion matter of fact, and, if CREPPS V. BURDEN ET ALTOS. 641 the defendant mean to rely on matter of fact, lie should make his defence at the time, the rule is not so as to matter of law. So, if the conviction of two persons be joint, for oft'onces ex necessitate rei several, it will be void, and (subject now to the above-mentioned Act) they may sue in trespass if it be acted upon ; Morgan v. Broivn, 4 A. & E. 515. And the rule is the same in the case of a single conviction of one person for two distinct offences ; Xetcman v. Bendyshe, 10 A. & E. 11 ; see Bettesivorth v. Allingham, 16 Q. B. D. 44. But " a conviction by a magistrate who has jurisdiction Butconvirtio over the subject-matter is, if no defects appear on the face evidenc^of of it, conclusive evidence of the facts stated in it ; " Brdtain facts stated V. Kinnaird, 1 B. & B. 432, per Dallas, C.J. In that case '" '^• trespass was brought against justices for taking a boat ; in their defence they relied on a conviction which warranted them in doing so. The plaintiff' offered evidence to con- trovert, the facts stated in the conviction, but it was held not to be admissible. Accord. Bastoi v. Carew, 3 B. & C. 649; Fawcett v. Fowlis, 7 Id. 394; Gray v. Cookson, 16 East, 13 ; Lowiher v. Radnor, 8 Id. 113 ; Ashcroft v. Bourne, 3 B. & Ad. 684 ; IL v. Bolton, 1 Q. B. 66 ; Colonial Bank of Austrcdasia v. Willan, L. R. 5 P. C. 417 : and the same attribute, viz., that of being conclusive evidence of the facts stated therein, and properl}- tending thereto, seems to have been thought to belong to every adjudication emanating from a competent tribunal ; Aldridge v. Haines, 2 B. & Ad. 395, and the cases there cited by Coleridge arguendo ; see also Westhury-on-Severn Union Case, 4 E. & B. 321 ; De Cosse Brissac v. Bathhone, 6 H. e^- N. 301 ; Kenij) v. Neville, 10 C. B. N. S. 549 ; Ex j). La Mcrt, 33 L. J. Q. B. 69. Even when the conviction had been quashed, it was pro- 43 Geo. 3, vided by the 43 G. 3, c. 141, that the party convicted, in "■ ^^^ ("°^ ..' •,;!•• T-1 . repealed). an action agamst the justices, which was required to be on the case, should only obtain two pence damages, besides the amount of the penalty if levied, and no costs of suit, unless he expressly averred malice and want of probable cause ; and that he should not recover the amount of the penaltv if the defendants proved him to have been guiltv of the off"ence of which he had been convicted, and that he had undergone no greater punishment than was by law assigned thereto. And it was held under this Act that he must at the trial prove not merely his own innocence of the offence S.L.C. VOL. I. 41 64:2 CREPPS V. DURDEN ET ALIOS. of which he was convicted, but also what took place before the justices at the time of conviction, in order that it might api^ear whether there was probable cause or no ; Biirley V. Bethune, 5 Taunt. 580. See Baylis v. Strickland^ 1 M. & Gr. 591. 11 & 12 Vict. But the 43 Geo. 3, c. 141, is now repealed by the g - * Justices Protection Act, 1848, the first section of which provides that every action to be brought against any justice for any act done by him in the execution of his duty as such justice, as to an}^ matter within his jurisdiction (see Sommcrville v. Mirehouse, 1 B. & S. 652 ; Laivrenson v. Hill, 10 Ir. C. L. R. 177 ; Gelen v. Hall, 2 H. & N. 379), shall be on the case, and the declaration shall allege the act to have been done malicionsl^^ and without reasonable and ])robable cause, and, if such allegation be not proved upon the i)lea of the general issue, the i^laintiff shall be nonsuit, or a verdict shall be given for the defendant. See Kendall V, Wilkinson, 4 E. & B. 680. Sonhle, in cases within this section, the action may be maintained without the convic- tion or order being quashed ; per Lord Campbell, IL v. Wood, 5 E. & B. 58 ; and see Lawrenson v. Hill, supra. Quare, however, whether, notwithstanding this Act, the justice, for acts done in the execution of his office, might not claim the protection extended generally to judicial acts, even though the act was done maliciously. See the cases as to judges cited ante, at the end of the notes to Mostyn v. Fabriyas. 11 & 12 Vict. But when the act is done by the justice in a matter, of which he has no jurisdiction, as in Ci'epps v. Durden, or where he exceeds his jurisdiction, he may, by s. 2, be sued as before the statute, except where the act complained of has been done under a conviction or order, in which case " the conviction " {sic in statute) must be first quashed — or, if done under a warrant for appearance followed by a conviction or order, the conviction or order must be first quashed — or, if such warrant be ]iot followed by conviction or order or be ui)un information for an indictable offence, still no action can be maintained if a summons was pre- viously served and disobeyed. See, as to the construction of this section, Leary v. Patrick, 15 Q. B. 266 ; Newhould V. Coliiiuin, 6 Exch. 181) ; Jlayhick v. S2)arkc, 1 E. & B. 471 ; Pease v. Chaytnr, 1 B. \- S. 658, 3 Id. 620; Pedley v. Davis, 10 C. B. N. S. 492; Bessell v. Wilsoii, 1 E. & B. 189 ; Lawrrnson v. Hill, 10 Ir. ('. I;. B. 177 ; Lalor v. c. 44 S. 2. CREPPS V. BURDEN ET ALIOS. 643 Bland, 8 Id. 115 ; and Bott v. Acnnjd, 28 L. J. M. C. 207, ^^ ^ ^^ ^''^t. where the objection to a conviction and warrant of com- ~ — '■ mitment was that the justices had signed it leaving blanks for the amount of costs, but this omission was held, in an action for false im[)risonment against the justices brought after tlie conviction had been quashed, to be an erroneous exercise of jurisdiction only, and not an excess. The summons mentioned in the statute, the non-attend- ance upon which is to bar the maintenance of an action, is a sunnnons before conviction ; the section does not apply to a summons and warrant issued after conviction, with a view to the levying of the penalty imposed ; Bessell v. Wilson, 1 E. & B. 480. In Barton x. Brkkncll, 13 Q. B. 393, an action of trespass was brought against a justice for wrong- fully seizing the plaintiff's goods. It appeared that the defendant had convicted the plaintiff, under the 29 Car. 2, c. 7 (for Sunday trading), in a penalty and costs to be levied by distress. The conviction directed that in case of non- payment, and if there should be no distress, the plaintiff should be put in the stocks for two hours, unless the penalty and costs were sooner paid. The goods of the plaintiff" were distr;«ined, and the conviction was quashed on account of the illegal alternative contained in it, as to the stocks. It was held that the defendant was protected tinder s. 1 of this statute, and that s. 2 did not apply, as the defendant had jarisdietion to order the distres><, in respect of which alone the action was brought. S. 3 protects a justice bond fide granting a warrant upon 3. the conviction of another justice, which is defective for want of jurisdiction, and makes the convicting justice alone liable. S. 4 i)r(diibits actions b}^ parties rated to the poor, s. 4. though not liable to be rated, or in respect of any defect in such rate, against the justices issuing a distress warrant thereon, — and farther provides that the exercise of dis- cretionary powers vested in a justice by statute, shall not furnish ground of action. By s. 5, if a justice refuses to do any act relating to the S, 5. duties of his office, the Queen's Bench may order him to do the act, and he will not be liable to any proceeding for having obeyed the order. It has been held that this section only applies if the act be one by which the justices incur liability; 11. v. Pereij, L. R. 9 Q. B. 64; but in the later case of II. V. PJiilUinure, 14 Q. B. D. 474, n,, the court 41 -J 644 CREPPS V. DUPDEN ET ALIOS. 11 & 12 Vict, c. 44. Sometimes a question wliether jus- tices liave de- clined juris- diction or adjudicated. No summons where lial'ility doubtful. CoatH. considered that this rule would narrow the operation of the statute too much, though they declined to la}' down an}^ absolute rule as to when the proceeding shovtid he under this section, and when by mandamus. The court acts upon this section where justices refuse to determine a case over which they have jurisdiction, and a mandamus to them to hear and determine the case would issue ; R. v. Cotton, 15 Q. B. 569 ; R. v. JJ. of Bristol, 3 E. & B. 479, n. ; R. V. Raynter, 7 Id. 328 ; R. v. Dayman, Id. 672 ; R. v. Dunn, Id. 220 ; but not where the refusal is merely formal, and made for the purpose of eliciting the opinion of the court, and deciding the case according to the opinion given ; R. V. Paynter, supra ; R. v. Dayman, supra ; nor where a summons has been refused upon the ground that the infor- mation does not disclose an offence ; Ex p. Lewis, 21 Q. B. D. 191. It is sometimes a nice question whether the justices have declined jurisdiction, or whether they have adjudicated ; R. V. Brou-n, 7 E. & B. 757 ; R. v. Paynter, Id. 328 ; R. v. Dayman, Id. 672 ; R. v. Rochester, Id. 910 ; R. v. Wood, 5 Id. 49 ; and R. v. Pad wick, 8 Id. 704, where the dis- missal by quarter sessions of an appeal for want of jurisdiction was held to be a decision within the meaning of 12 & 13 A^ict. c. 45, s. 5. See also Carr v. Stringer, E. B. & E. 123, where, though an appeal did not lie, yet the court enter- tained the question so far as to examine whether the}^ had jurisdiction, and to give costs to the respondent; and see Exp. Monroe, 8 E. & B. 822 ; and R. v. Marsham, (1892) 1 Q. B. 371. But the court refused to make an order, directing justices to issue a warrant of distress, where the liability of the person against whom it was sought appeared seriously doubtful ; R. v. Browne, 13 Q. B. 654. Orders to issue warrants of distress were made in R. v. JJ. of Kingston- npon-Thames, E. B. & E. 256; R. v. Bradshaw, 29 E. J.M. C. 176; R. v. E. Counties R. Co., 5 E. & B. 974; R. v. Linford, 7 Id. 950; R. v. Boteler, 33 L. J. M. C. 101 ; R. v. Iligginson, 31 Id. 189; Re Hartley, Id. 232 ;— to sign an order f(n- tlie preferment of an indictment, in R. v. Arvould, 8 E. & B. 550. On a motion against a magistrate under this section, the general rule is, that tlie court will order the unsuccessful party to pay costs, and will not, on the motion for costs, enter into the merits of the original application ; R. v. Ingham, 17 Q. B. 884. CREPPS V. DCJRDEN ET ALIOS. 645 S. 6 makes the confirmation of a conviction or order on H ^ "12 Vict. c 44. appeal a protection to a justice who issues a warrant upon it either befoie or after such confirmation. ' ' S. 7 empowers a judge to set aside the proceedings in any s. 7. action brought against a justice contrary to the provisions of the Act. S. 13 provides that the phiintiff shall not in any case S. 13. recover more than twopence damages where it appears that he was guilty of the ofi'ence of which he was convicted, or liable by law to pay the sum ordered to be paid, and that he has undergone no greater punishment than that assigned by law' to the offence of which he was convicted, or for non- payment of the money ordered to be paid. The provisions contained in ss. 8 — V2, and 14, are now^ Public Autho- riti6S J-'rotcc* repealed by the Public Authorities Protection Act, 1893, ^^^^ ^^^.^ except the privilege of exemption from the iurisdiction of 1893, f>Q & 57 XI • , , , X. i -,r. J. Vict. c. 61. the country court given by tlie latter part oi s. lU, as to which see Weston v. Snei/d, 1 H. c^' N. 703. Notice of action is therefore no longer necessaiy ; see 56 & 57 Vict. c. 61, s. 2. The Public Authorities Protection Act, 1893, provides that :— (a) The action must be brought within six months next after the act complained of : (b) If judgment is obtained by the defendant, it shall cany costs to be taxed as between solicitor and client : (c) Tender of amends before the action was commenced may be pleaded. If the action was commenced after the tender, or is proceeded with after payment into court of any money in satisfaction of the plaintift''s claim, and the plaintift" does not recover more than the sum tendered or paid, he shall not recover any costs incurred after the tender or payment, and the defendant shall be entitled to costs, to be taxed as between solicitor and client, as from the time of the tender or payment : (d) If in the opinion of the court the plaintiff has not given the defendant a sufticient opportunity of tendering amends before the commencement of the action, the court may award to the defendant costs to be taxed as between solicitor and client. Such is a summary of the statutory protection now possessed by justices. The conviction or order may be drawn up at any time Amendmeut before it is returned to the quarter sessions (see the 11 & 12 oj-oi-jgn 646 CREPPS V. DURBEN ET ALIOS. Qucere, need the justices' jurisdiction appear aftir- niatively on the convic- tion. Tlie law as to suniniary con- viction gene- rally. No conviction before justice without j ury at coinnion law. Alafti.stiatcs Iirotected liy ;'. Geo. 4, c. 2."3, now rejicak'i!. Vict. c. 43, s. 14), so that though it may be informal at first, the magistrate has an opportunity of amending it ; and it has been declared to be not only legal but laudable so to do ; R. V. Barker, 1 East, 186. Unless, indeed, it have been quashed, or its invalidity otherwise ascertained by the decision of a superior cornet, as, for instance, by the Queen's Bench on Habeas Corpus ; Chaney v. Payne, 1 Q. B. 725. But it would seem that, after an invalid conviction has been filed at sessions, another might be substituted : R. v. Richards, 5 Q. B. 926. But the rule is different in case of an order; R. v. JJ. of Cheshire, 5 B. & Ad. 439. And see, as to the amendment of orders made by justices, 12 & 13 Vict. c. 45, s. 7 ; R. v. Higham, 7 E. & B. 557 ; R. v. Lunclie, 31 L. J. M. C. 157. Even in the case of a con- viction, where a rule nisi had been obtained for a certiorari to bring up a bad conviction, and, after the conviction had been returned to the clerk of the peace and filed, the magistrate drew up a fresh and corrected conviction, it was held that the certiorari should go; Ex p. Austin, 50 L. J. M. C. 8. In Griffith v. Harries, 2 M. & W. 335, it was stated by Parke, B., that in a case of Dimsdale v. Clarlie, a.d. 1829, he and Littledale, J., differed from Bayley, J., on the question whether it be necessary that the magistrate's juris- diction should appear affirmatively on the conviction, Ba}ley, J., thinking that it need not; but see Day v. King, 5 A. & E. 359 ; i^. v. Lewis, 8 Id. 885. As the law regarding snmriiary co)trictions before justices is of great importance, on account of the immense variety of subjects which fall within this sort of jurisdiction, it seems advisable to make some general remarks on it. A conviction before a justice or justices of the peace with- out the intervention of a jury is always under some statute ; tlie common law knows of no such proceeding. It has Ix'cn regarded by the courts with no particular favour, and formerly the justice was obliged, on the record of it, to sliow in detail that he had proceeded recto ordine. So imicb i)i-ccision wns required in drawing it up, that magis- trates and their chirks were under considerable difficulty, }i.nd ran considerable risk, in framing it. Eor their ease and protection tli(! 3 Oeo. 4, c. 23, provided a general form, which, however, was only a])plicable where no particular foiiii hnd bee)i given, and r('(|uired the evidence to be set I'liih. 'I'liis Ad was repealed, and nearly all difficulty in CREPPS V. BURDEN ET ALIOS. 64-7 framing a conviction removed, by one of the three Jervis's Acts relating to justices acting out of quarter sessions (tlie third of whicli, 11 it 12 Vict. c. 44, has been above epitomised), namely, by the Summary Jurisdiction Act, Smmnary 11 & 12 Vict. c. 43, which gave short forms of convictions icflKs!'' and of proceedings to obtain and enforce them, and did away with the effect of variances and defects both in substance and form in several parts of the proceedings themselves. This Act has been amended by the Summary Jurisdiction Acts, 1879 and 1884 (42 & 43 Vict. c. 49, 47 & 48 Vict. c. 43), and for the forms contained in the schedule to the Act of 1848 others have been substituted by the rules drawn up under s. 29 of the Act of 1879, and ss. 4 and 12 of the Act of 1884 ; see post, p. G48. The first section of the Act of 1848 directs that in all S. l. cases where an information (which need not be on oath unless a warrant issues in the first instance, s. 10) is laid befor^e a justice or justices, or complaint made (which need not he In icriting unless the statute require it, s. 8), a summons may issue according to the prescribed form (as to the mode of service, see jier Quain, J., R. v. Sniltli, Jj. R. 10 Q. B. 609) ; and by s. 2, in case of non-appear- ance, upon proof on oath that the summons . was served n-]iat shall he deoncd hi/ the justice a reasonable time before the appointed day (see B. v. SinitJi, supra), he may, upon the information or complaint being substantiated on oath, issue his warrant according to the prescribed form : or in S. 2. cases of convictions, where the original information is upon oath, he may issue such warrant in the first instance : or in cases where a summons issues without appearance, upon proof on oath that it was served a reasonable time (not as in case of issuing a warrant what sltall he deemed hy the justice a reasonable time) before the appointed day, he may proceed ex parte, and adjudicate ; and it is provided b}' s. 1, that no Proviso by ohjection sliall he allowed to any information, conqdaint or ^' summons for any allcfied defect therein " in suhstance or in form,'^ or for any variance in the evidence ; but, if considered by the justice prejudicial to the defendant, the case mav be adjourned; see Whittle v. Frankland, 31 L. J. M. C. 81; Eodgers v. Ilichards, (1892) 1 Q. B. 555. Where the summons was for drunkenness and riotous behaviour, contrary to a special Act, a conviction for drunkenness only was quashed ; Martin v. Pridgeon, 28 L. J. M. C. 179 ; and see n. V. Brickhall, 33 Id. 156. 648 CREPPS V. DURDEN ET ALIOS. S. 3 contains a similar provision as to warrants, with a similar power of postponement, and in the meanwhile com- ^~^ mitment or enlargement upon recognizances according to the prescribed forms. S- 4. S, 4 directs the mode in which the ownership of property is in certain cases to be stated. S. 5. S. 5 makes aiders and abettors in the commission of offences punishable by summary conviction liable to the same punishment as principals. S- 6. y. 6 extends the provisions of 11 e'v' 12 Vict. c. 42, to this Act, but is not controlled by s. 35 of that Act; see 26 & 27 Vict. c. 77 ; Bradford Union v. Clerk of the Peace for Wilts, L. E. 3 Q. B. 604. S- /• S. 7 gives the justice power to enforce the attendance of any material witness within his jurisdiction, in the same manner as a defendant, and to commit for seven days any witness refusing to be sworn or to answer. S- 11- S. 11 gives six months after the cause has arisen, in the absence of special enactment, as the time for complaint or information ; see Eddleston v. Francis, 7 C. B. N. S. 568 ; Labalmondiere v. Addison, 1 E. & E. 41; Reeve v. Yeates, 1 H. & C. 435 ; Morant v. Tai/lor, 1 Ex. D. 188 ; Cor/gins V. Bennett, 2 C. P. D. 568; R. v. Slade, (1895) 2 Q. B.'247. S. 12 (slightly modified by the Act of 1884, s. 4), s. 13 (similarly modified), s. 14, and s. 16 (also so modified) contain precise directions as to the mode in which the hearing upon complaint and information is to be conducted. As to s. 14, see Ex p. Hayward, 32 L. J. M. C. 89; Davis V. Scrace, L. H. 4 C. P. 172 ; Morgan v. Hcdger, 5 Id. 485 ; R. V. Hutchins, 5 Q. B. D. 353 ; and as to s. 16, see Gelen v. Hcdl, 2 li. ct N. 739. S. 17 provided for the use of the forms of convictions and orders in the schedule to the Act ; but the Summary Jurisdic- tion Act, 1884, s. 55, repealed so much of this section " as specifies any form of conviction or order for which another form is provided by a rule under the Sunnnary Jurisdiction Acts." The validity of forms so provided is established by s. 29 of the Summary -lurisdiction Act, 1879, explained by s. 12 of the Summary Jurisdiction Act, 1884, and the rules and forms now in force will be found in the Weekly Notes of Oct. 9, IHKO. By r. 31 it is i)rovided that the forms in the schedule to the rules, or forms to the like effect, may be used with such variations as the circumstances may reiiuirc. \>y r. ;>2, tlic forms in the schedule to the CREPPS V. DUPtDEN ET ALIOS. 649 Act of 1848 are annulled. It will be seen that — in convic- '"^"miliary . , /-. X 1 • - • Junsilietion tions (Part I., forms 11 — 17) neither (1) the iiijonnatioit, Act, 1848. nor (2j the stinunoiis, nor (3) the appearance or non- appearance of the defendant is to be mentioned — and (4) the evidence is not to be set forth. The requisites of a conviction, which formerly must have Former 1 , - . ., ■ ' reiiuisites of been recorded m it, are : — conviction. 1. The information, \\\niA\ has been usually stated to be i. The infor- absolutelv essential in all cases, excepting where the justice mation winch is empowered to convict on view (see 1 \Vm. oaunci. Ib'l, n., ii,,ii of jmis- and Jones v. Owen, 2 D. & R. 600). It has been regarded ^lictiou. as the foundation of Ids jurisdiction over the case, without which his proceeding would be void (see II. v. Bolton, 1 Q. B. 66; Blake v. Beech, 1 Ex. D. 320); and though some of the dicta in li. v. Hughes, 4 Q. B. D. 614, appear somewhat inconsistent with this view, the decision seems merely to negative the necessity of any formal information where noi required by statute. The same principle applies to other limited jurisdictions created by statute ; thus, a presentment is the foundation of the jurisdiction of com- missioners of sewers, and if there be not one, their rate is void ; Wingate v. Waite, 6 M. & W. 739 ; and see the judgment in Doe v. Bristol d- Exeter R. Co., Id. 320 ; R. V. Croke, 1 Cowp. 26 ; and Christie v. Unwin, 11 A. & E. 373, where the same principle was held to apply even to the exercise of an authority conferred by statute on the chancellor ; see also R. v. Hartley Union, 1 Q. B. 677 ; LeeY. Rowley, 8 E. il' B. 857 ; and Re Hopper v. Warhurton , 32 L. J. Q. B. 104. The information need not have been in writing or even Information on oath, unless expressly directed by statute to be so; ll^l;^ jj^' Basten v. Carew, 3 B. k C. 649 ; R. v. Hughes, 4 Q. B. D. writin- or on 614. By the Act of 1848, s. 10, whenever the justice ^'' ^^^101^^ issues a warrant in the first instance without summons, the information must be upon oath. Objections cannot now usually be taken to the informa- tion for defects in substance, or form, or for variances between it and the evidence ; see the Act of 1848, ss. 1, 9 ; still, care should be taken in framing it, since it has been usually considered to be the foundation of the magistrate's jurisdiction ; Cave v. Mountain, 1 M. & Gr. 257 ; Carpenter V. Mason, 12 A. & E. 629. When there is no Act giving a particular form, it is sufficient if the jurisdiction is substantially made apparent 650 CREPPS V. DURDEN ET ALIOS. Kcqiiisitis of conviction before 11 i^ 1"^ Viet. c. i-i. luforniation should state day on which it is exliihited. Place of exhibitiiii(. Name of iufoniier. Name and style of convicting justices. Name of otfcnder. Time of offence. Place. Every neces- sary ingre- dient of ollence. Generally sullicient to .state offence in words of Act creating it. in the documents, or ctin be inferred therefrom ; Taylor V. Clemson, per Tindal, C.J., 2 Q. B. 978, 1032 ; see Ex p. Baker, 7 E. & B. 697. Before the Act of 1848, ss. 1, 9, the evidence wouhl not suppl}' omissions in the information, for the office of the evidence is to prove, not to supply a legal charge ; R. v. Wheatman, 1 Dougl. 345 ; Wiles v. Cooper, 3 A. & E. 528. It should state the da.y on which it is exhibited : and the statement of a day inconsistent "with, or insufficient to warrant, the conviction formerly vitiated it ; R. v. Kent, 2 Ld. Raym. 1546. It should state the place of exhibiting, that the magis- trate ma}' appear to have been acting within his jurisdiction ; see Kite's Case, 1 B. & C. 101 ; R, v. Martm, 2 Q. B. 1037 ; Re Peerless, 1 Id. 143. The name of the informer should, it seems, be set forth, that the defendant may know who is accusing him ; in some cases, at all events, it is necessaiy ; see R. v. Stone, 2 Ld. Eaym. 1545. It should state the name and style of the convicting justice or justices, and show that he is acting within his jurisdiction ; see Kite's Case, IB. & C. 101 ; R. v. Martin, 2 Q. B. 1036 ; Re Peerless, 1 Id. 143 ; R. v. St. George's, Bloomshury, 4 E. & B. 520. Thus it was held, before the Act of 1848, not to be enough to state that he is a justice in the county, without stating that he is of or for the counl^y ; Ri. v. Dohhyn, 2 Salk. 474 ; — the name of the offender or offenders; R. v. Harrison, 8 T. R. 508; — the lime of the offence, so that the information may appear to have been laid in due time ; R. v. P alien, 1 Salk. 369 ; R. v. Chandler, Id. 378 ; R. v. Crisp, 7 East, 389 ;— the place, that it may appear to have been within the justice's jurisdiction; Kite's Case, 1 B. & C. 101; — lastly, the charge should be set forth with proper and sulffcient certainty, and contain every ingredient necessar}'- to constitute the offrncc, leaving nothing to mere inference or intendment. " A conviction," to use the words of Lord Holt, "must be certain, and not taken by collection ; " R. v. Fuller, 1 Ld. lli.ym. 509 ; Pi. v. Trelawney, 1 T. R. 222. (ienerally speaking, it is sufficient to state the offence in the words of the Act creating it; see R. v. Speed, 1 Ld. Rnym. 583; Parin v. Nest, 6 C. & P. 167; Ex p. Pain, 5 B. .V (J. 251 ; Re Perham, 5 H. & N. 30 ; Walsby v. ylvlry, 30 L. J. M. C. 121 ; and by the Act of 1879, s. 39, sub-s. 1, it is expressly enacted with reference to pro- CREPPS V. DURDEN ET ALI08. 05 L ceeclin2;s before courts of summary jurisdiction that "the Requisites of • • r rt' • 1 ' ' 1 ^ 1 * conviction description of any ofience m the words oi the Act, or an}' before ii& 12 order, bj^e-law, regulation, or other document creating the Vict, c. 43. offence, or, in similar words, shall be sufficient in law." Cases, however, may occur in which the words of the Act are so general as to render some more certainty in the con- viction necessary; ^^er Denison, J., R. v. Jarris, 1 Buri'. 154; Ex p. Hawkins, 2 B. & C. 31; li. v. Perrott, 2 M. &. S. 379. Where a statute or bye-law creates two distinct offences, and i^rovides the same penalty for both, an information and conviction stating the offence in the alternative, as contrary to the statute or bye-law, are insufficient ; CotferiU v. Lcmprierc, 24 Q. B. L). G34. Before the Act of 1848, it was held that exceptions in the statute creating the offence should be negatived where they appeared in the clause creating the offence ; R. v. a. S. 18. Ss. Vj—'J.'.>, •■•A. A. .1- E. 793 ; R. v. St. Nicholas, 3 Id. 79 ; see Cross v. Watts, per Byles, J., 13 C. B. N. S. 247, 248. The appli- cation of the penalty, where the Act directs any mode of applying it, has been held to be a necessary part of the judgment; Chaddock v. Wilhraham, 5 C. B. 645; but at any rate in most cases it would be sufiicient to follow the forms in the schedule to the Piules of 1886, which do not provide for the application of the penalty. When, however, the statute leaves the application discretionary, the mode in which the discretion was exercised ought, it would seem, to be stated ; II. v. Dimpsey, 2 T. K. 96. Where the justice is to give costs or charges, he must ascertain their amount in the conviction ; R. v. Symonds, 1 East, 189 ; Bott v. Acroyd, 28 L. J. M. C. 207 ; R. v. St. Mary, 13 East, 57 n. ; and as to costs, see now the Act of 1848, s. 18, and the Act of 1879, s. 8; and R. v. Barton, 13 Q. B. 389. 7. Lastly, the conviction should be subscribed, dated and sealed ; see Fi. v. Elwell, 2 Str. 794 ; Basten v. Caretr, 3 B. & C. 649 ; and see the Act of 1848, s. 14, which requii-es the conviction or order to be drawn up under the hand and seal of the justice. The reason of dating it is, that it may appear when it was made ; and if that do appear, that is enough, and an impossible date might be rejected ; R. v. Picton, 2 East, 198 ; see R. v. Bellamy, 1 B. & C. 500. The above observations apply to convictions in general ; but a conviction is the creature of the statute law ; and, if a statute prescribe any particular form for it, no matter what, that form, except when otherwise provided by statute, must be strictly pursued ; Davison v. Gill, 1 East, 72 ; Goss v. Jackson, 3 Esp. 198. By s. 27, sub-s. 5, of the Act of 1879, it is provided that, where an indictable ofience is, under the circumstances in that Act mentioned, authorised to be dealt with sumnuirily, " the conviction shall contain a statement either as to the plea of guilty of an adult, or in the case of a child as to the consent or otherwise of his parent or guardian, and in the case of any other person of the consent of such person, to be tried by a court of summary jurisdiction." To proceed with the summary of the Act of 1848 — s. 18 eiuil^les the justice to order costs either to the prosecutor or coiiipbiiiiaiit, or to the defendant ; as to which see also the Act of 1879, ss. 6, 8, 28. Ss. 19 to 29, and s. 31, relale to the mode in which penal- ties imposed, and costs oideicd by jusUct'S are, luider various CREPPS V. DURDEN ET ATJOS. ()55 circumstances, to be recovered and paid. Ss. 11) and 20 are l)artly repealed by the Act of 1884, sched. xVs to s. 23, see Leverick v. jMcrcer, 14 Q. B. 759 ; as to s. 25, R. v. Cuthush, I.. R. 2 Q. B. 379 ; and as to s. 26, Winn v. Mossman, L. R. 4 Ex. 292. Further provisions on the like subject arc con- tained in the Act of 1879, ss. 4 to 9, 21, 24, 28, 34, 35, 39, 48, and in the Act of 1884, s. 3. As to the proper mode of awarding costs in cases of appeal under s. 27 of the Act of 1848, see li. v. IlelUer, 17 Q. B. 229 ; li. v. Binneij, 1 E. & B. 810 ; B. V. Huntley, 3 Id. 172 ; E. v. J J. of Ely, 5 Id. 489 ; Gay v. Matthews, 4 B. & S. 425. As to s. 31, see Mayor of Reigate v. Hart, L. R. 3 Q. B. 244. S. 32 enacts that the forms in the schedule shall be s. 32. deemed good, vnlid, and sufficient in law ; but these forms liave now been annulled, and others substituted, see ante, p. 648. Ss. 33, 34, regulate jurisdictions of metropolitan police, Ss. 3:3, 34. and stipendiary, magistrates ; also of the Lord ]\Iayor and aldernlen of London ; but these sections do not apply to, or restrict the ojjeration of, the Act of 1879 ; see s. 52. S. 35 provides that the Act shall not extend to orders of S. 3'). removal {R. v. J J. of Soinersetsliirc, 22 Q. B. D. 623), orders as to lunatics (see, however, Bradford Union v. Clerk of tlie Peaeefor Wilts, L. R. 3 Q. B. 604), nor to ijfonnations con- cerning the excise, customs, stamps, taxes, or pout office (but the foregoing exception in italics is repealed by the Act of 1879, s. 55), nor to orders, &c., in matters of bastardy, (but the Act of 1879, which is to be construed as one with the Act of 1848, does " apply to the levying of sums adjudged to be paid by an order in any matter of bastardy, or l)y an order which is enforceable as an order of affiliation, and to the imprisonment of a defendant for non-payment of such sums in like manner as if an order in any such matter or so enforceable were a conviction on information, and to the proof of the service of any summons, notice, process, or document in any matter of bastardy, and of any handwriting or seal in any such matter, and to an appeal from an order in any matter of bastardy,") nor to proceedings under Acts regulating the labour of children in factories, kc. (which last exception w^as repealed by the Factories and Workshops Act, 1-871, 34 & 35 Vict. c. 104, s. 11 ; see now 41 V:ct. c. 16, s. 89). An adjudication by two justices under the Lands Clauses Consolidation and Railway Clauses Consohdation Acts, 656 CRErPS V. BURDEN ET ALIOS. 42 & 43 Yict. c. 49. Jurisdiction as to indict- able otfcneos. Appeal to Quarter Ses- Rccovery of sums as civil debts. I'lulus. 1845, as to the compensation pa3'able by a railway company to a person whose lands have been injuriously affected by their works, is not an order within s. 1 of this Act ; Ti. v. Edicards, 13 Q. B. D, 586, overruling Re EdmuncUon, 17 Q. B. 67. By the Summar}' Jurisdiction Act, 1879, already referred to, tlie powers of courts of summary jurisdiction have been materially increased. It has not been thought necessary, however, to set out the details of that Act, nor of the later Act of 1884 (47 & 48 Yict. c. 43), which is principally a reiiealing and explanatory Act. The alterations in procedure, so far as they relate to the subject-matter of this Act, have been already mentioned. But the most important feature of the Act of 1879 is that it gives power to courts of summarj- jurisdiction to deal summaril}' with certain specified indictable offences in three cases, viz. : — (1) In the case of a child {i.e., a person who, in the opinion of the court, is under 12 years), unless the l^arent or guardian objects, charged with an}' offence except homicide; (2) In the case of a .young person {i.e., a person who, in the opinion of the court, is of the age of 12 and under 16 years of age), charged with certain cases of larceny, embezzlement, and receiving, as specified in the First Sche- dule, if the accused consents ; (3) In the case of an adult {i.e., a person who, in the opinion of the court, is of the age of 16 3'ears or upwards), charged with the same class of offences, if he pleads guilty, or with another class of similar offences specified in the same Schedule, if he consents ; see ss. 10—17, 24, 27, 28. By s. 17 the right to claim trial by jury is given to a person charged before a court of summary jurisdiction with an offence, other than an assault, involving a liability on conviction to imprisonment for a term of more than three months; see Williams v. Wynne, 57 L. J. M. C. 30; Carle v. FAkington, 67 L. T. 374. By s. 19, an appeal is given to the general or quarter sessions against certain summarj- convictions and orders. See as to procedure on appeal, ss. 31, 32. By ss. 6, 7, 8, and 35, 47, special powers are given for the recovery, as a civil debt, of sums ordered to be paid by a court of summar}' jurisdiction ; see 1\. v. Price, 5 Q. B. I). 300. By s. 29 power is given to the Lord Chancellor to make, rescind, and alter rules in relation to the Summary Jurisdic- tion Acts. The present rules will be found in the Weekly Notes, Oct. 9, 1886. C REPPS V. DUKDEX ET ALIOS. 657 If a conviction be void on the face of it, it follows, as of course, that, as a general rule, no act done in pursuance of it can be justified, and that any seizure of person or property under it will form the subject-matter of an action, as will be seen in the principal case ; subject, however, to the provisions of the Justices Protection Act, 1848, and the Public Autho- rities Protection Act, 1893 ; ante, p, 642 et seq. Cases there are, however, in which the convicting justice, though he has convicted without jurisdiction and his order has been acted upon, is not liable to an action unless he either acted viald Jidc, or ought to have known of his want of jurisdiction. The class of cases referred to occurs where the jurisdiction of the justice depends upon the existence of a certain state of facts. Whether those facts exist is a collateral question which he has to decide ; and, though he decide wrongly, and so by his wrong decision attribute to himself and act upon a jurisdiction which he does. not possess, he is not liable to an action merely on account of his erroneous decision on the question of fact ; Pease v. Chaijtor, 3 B. & S. 620. It is otherwise if the mistake be one of law ; see Hoidden v. SmitJi, 14 Q. B. 841, cited by Blackburn, J., in his judg- ment in Pease v. Chaytor, supra. But, until his erroneou.- judgment be acted upon so as to make him liable in tres- pass, he is not liable for his judicial mistake : SoinDierrille v. Mirehouse, 1 B. & S. 652. Besides the remedy by action, there are two modes of impeaching convictions ; first, by appeal, secondh', by certiorari. An appeal, like a conviction, is the creature of the statute law, and never lies unless it is given by express terms; R. V. Recorder of Ipswich, 8 Dowl. 103 ; Pi. v. Hanson, 4 B. & Aid. 519 ; R. v. JJ. of Wanvickshire, 6 E. & B. 837 ; Ex p. Chamberlain, 8 Id. 644. See also R. v. JJ. of Worcester, 3 E. & B. 486 ; R. v. Sandon, Id. 547 ; A.-G. v. Sillcm, 10 H. L. C. 704. The rule with regard to a certiorari is the ver}- reverse. It always lies unless expressly taken away ; R. v. Abbot, 2 Dougl. 553 ; and it requires very strong words to do so ; for even where a statute gave an appeal to the sessions, and directed that it should be finally determined there, and no other court should intermeddle with the causes of apj^eal, it was held that a certiorari lay after the appeal; R. v. Reeve, 1 W. Bl. 231 ; R. v. Jukes, 8 T. K. 542 ; see R. v. JJ. of S.L.C. — VOL. I. 42 If conviction voiil no act uu'lcr it justi- tiablc. Justice not liable for erroneous judgment as to focts giving jurisdiction. Sccus as to mistake of law, Modes of im- peaching con- viction by (1) appeal. (2) certiorari. A]>peal a creature of statute. Certiorari always lies unless ex- pressly taken awav. 65S CREPPS V. DURDEN ET ALIOS. Certiorari. Privilege of the Crown. Certiorari. West Riding, Yorks., 1 A. & E. 575, where it was taken away; R. v. Fell, 1 B. & Ad. 380 ; R. v. J J. of Lancashire, 11 A. & E. 144, where an order in pursuance of a statute leaving the certiorari, but made by a town council empowered by 5 & 6 W. 4, c. 76, which took it away, was held remov- able by certiorari. The reason of this is, that it is an ex- tremely beneficial writ, being the medium through which the Queen's Bench exercises its corrective jurisdiction over the summary proceedings of inferior courts. A section in a statute taking away the certiorari does not apply where there has been an absence of jurisdiction ; Ex p. Bradlaugh, 3 Q. B. D. 509. Where it is expressly taken away it has been decided that it cannot issue even to bring up to quash an order of justices in quarter sessions conditionally affirming a conviction sub- ject to a case for the opinion of the court ; R. v. Chantrell, L. R. 10 Q. B. 587. Now, however, a certiorari is not in svich case required ; 42 & 43 Vict. c. 49, s. 40. Even where it is taken away in express terms, they do not include the crown unless named ; R. v. Davies, 5 T. B. 626 ; R. V. Allen, 15 East, 333 ; R. v. Boulthee, 4 A. & E. 498. Nay, it is said that the attorney-general, on behalf of the crown, might in such case obtain the writ for a defen- dant ; see 1 East, 303, n., and the authorities there cited. A certiorari is a writ, issuing out of the Chancery or Queen's Bench Division of the High Court, commanding the judges or officers of an inferior court to certify and return the record of a matter before them. See Walsall v. L. d- N. W. R. Co., 4 App. Cas. 30, 39, per Earl Cairns. It is used for a great variety of purposes ; but we are at present looking only at its applicability to the case of a con- viction. No v/rit of error lies upon a conviction ; so that a certiorari is the only mode of bringing it into the Queen's Bench Division in order to reverse it ; see per Bramwell, L. J., in R. V. Overseers of Walsall, 3 Q. B. I). 464. And the jurisdiction of the Court of (Queen's Bench to issue the Avrit of certiorari formerly applied, and that of the Queen's Bench Division of the High Court now " applies, only where there is some defect of jurisdiction or informality or defect appai-ent on the face of the proceedings " in the inferior court ; li. V. Overseers of Walsall, supra. The superior court cannot give itself jurisdiction through the writ of certiorari when it otherwise possesses none. It has been held that a certiorari is not, like a writ of CREPPS V. DUPvDEN ET ALIOS. 659 error, granted ex dehito justitim ; but " application is made Certiorari. to the sound discretion of the court ; " li. v. Bass, 5 T. ]{. Not a matter 252; R. V. Manchester d- Leeds E. Co., 1 P. & D. 164 ; IL ^f ''ourse. V. S. Holland Drainage Conwiittee, Id. 79. But in II. v. JJ. of Surrey, L. K. 5 Q. B. 466, the court, after taking time to consider this very point, held that where the applicant was " a party grieved " the writ ought to be treated like a writ of error, as ex dehito justitife ; but where the applicant is not grieved, but comes forward merely as one of the public, the court has a discretion. They held, however, that the writ is cleaily not a matter of course ; the court must be satisfied on affidavits that grounds for issuing it exist ; see Crown Office Rules, 1886, r. 35 ; and even where tlie applicant is a party grieved, if he has by his conduct precluded himself from taking an objection, the court will not permit him to make it. See also B. v. Sheirard, 9 Q. B. D. 741 ; B. v. Drury, (1894) 2 Ir. R. 489. The application is by way of motion. Formerly the JModeof appli- 13 G. z, c. 18, s. 5, provided, and now r. 33 of the Crown ^^o/y^^- which Ofiice Rules, 1886, provides, that no certiorari shall be must be granted to remove any judgment, order, conviction, or other ,„onths proceeding before a justice or at the sessions, unless it be applied for within six calendar viontJis, and upon affidavit that the party has given six days' notice in u-riting to the justice or justices, or two of them, if more than one ; see B. V. Boughey, 4 T. R. 281 ; B. v. Bloxam, 1 A. & E. 386 ; B. V. Sevenoaks, 7 Q. B. 136; Be Hopkins, E. B. tt E. 100 ; B. V. Allan, 4 B. & S. 915 ; B. v. Hodgson, 9 L. T. 290 ; Ex 2^. Boherts, 50 J. P. 567. The notice to the justices must be six days before the rule nisi is moved for, one day inclusive, the other exclusive ; B. v. Goodenougli, 2 A. & E. 463 ; Be Flounders, 4 B. & Ad. 865 ; CO. R. 1886, r. 294. It must be by or on behalf of the party intending to move, and must appear to be so ; B. v. JJ. of Lancashire, 4 B. & Aid. 289 ; B. v. JJ. of Camhridgeshire, 3 Id. 887 ; B. v. JJ. of Kent, Id. 250 ; B. v. JJ. of Lan- cashire, 3 P. & D. 86, 11 A. & E. 144, where the notice was held sufficient; B. v. JJ. of Shreushury, 9 Dowl. 501 ; S. C. nom. B. v. How, 11 A. & E. 159. But the crown seems not to be bound by this even where it espouses the defendant's side ; B. v. James, 1 East, 303, n. ; B. v. Berkeley, 1 Ken. 80 ; B. v. Battams, 1 East, 298. If, upon the discussion of the rule, the writ be granted, it removes the conviction into the court above, where it is 42 2 660 CREPPS V. DURDEN ET ALIOS. Certiorari, quashed if bad ; if good, it remains in the Queen's Bench, unless, indeed, to keep it there wouki occasion a defect of justice, in which case it may be sent back again by writ of procedendo; R. v. Neville, 2 B. & Ad. 299. The person prosecuting the certiorari must, formerly by 5 G. 2, c. 19, and now by the C. 0. E. 1886, r. 36, enter into recognizance for 50/., with competent sureties, to prosecute it with effect, and to pay costs if unsuccessful. The above Act did not apply to the case of a prosecutor obtaining the writ; R. v. Sjjencer, 9 A. & E. 485. A writ of certiorari may on motion be superseded quia improvide emanavit ; R. V. Chantrell, L. R. 10 Q. B. 587. Xo appeal Where certiorari has gone to bring up a conviction for an From ccvf ioTctTi in ciimiual offence under the criminal law, no appeal will lie to the cases. Court of Appeal, criminal cases being expressly excepted from the jurisdiction of that court by s. 47 of the Judicature Act, 1873 ; see R. v. Fletcher, 2 Q. B. D. 43 ; R. v. Rudge, 16 Id. 459 ; R. v. JJ. of C. C. C. 18 Id. 314. But where by certiorari an order of quarter sessions as to a borough rate had been brought into the Q. B. D., and a rule tiisi to quash such order was subsequently discharged, and the order of sessions was affirmed by a rule of the Q. B. D., the Court of Appeal were equally divided as to whether an appeal lay from this last rule. Bramwell and Cotton, L.JJ., held that the jurisdiction was given by the general words of s. 19 of the Judicature Act, 1873 ; whilst Cockburn, C.J., and Brett, L.J., were of the contrary opinion, being of opinion that the Queen's Bench never had jurisdiction to quash such an order of sessions, but merely that a custom had arisen of taking the opinion of the Queen's Bench, upon which the sessions acted, and that therefore there had been no decision of the Q. B. I), on which an appeal would lie. On appeal, the flouse of Lords adopted the view of Bramwell and Cotton, L.JJ. ; Wahall v. L. d N. W. R. Co., 4 App. Cas. 30. No leave to appeal under s. 45 of the Act is in such case necessary ; Illingworth v. Bidmer East H. B,, 53 L. J. M. C. GO; and see R. v. Pemherton, 5 Q. B. D. 95; /;. V. J J. ofC. C. C, 18 Id. 314. Merits of tho Tlie Queen's Bench Division, exercising its appellate cage cannot be • j.- i • x -i. i j- • ■^^ L'oiic into on powcr over a conviction removed into it by certiorari, wm affidavit. not allow tlio merits of the case to be again litigated upon affidavit ; for the justices arc the proper persons to deter- mine upon those ; Jt. v. Rolton, 1 (^. B. (SiS; R. v. JJ. of Buckinfjhamshire , 8 Id. 800. And so, where the justices in CREPPS V. DURDEN ET ALIO.S. 661 quarter sessions quashed a magistrate's conviction on the Certiorari. gi'ound that certain words of the statute on which it was founded were omitted in it, the Q. V>. I)., tliough hokling their decision to he erroneous, (k'clined to interfere hy man- damus; II. V. JJ. of Middlcsc.r, '2 (). B. T). 51(5. Wliere, however, h}' consent of the parlies, tlie quarter-sessions of a recorder stated a special case, the court wouki decide on certiorari whether the facts stated in the case amounted to the offence charged, even though the certiorari were taken away; 11. \. Dickenson, 7 E. & B. 831 ; though see II. v. Chantrell, L. R. 10 Q. B. 587. And now the Sunnuary SummaiT Jurisdiction Act, 1879, s. 40, provides that "a writ of ^^^ i879, certiorari or other writ shall not he required for the removal s. 40. No of any conviction, order, or other determination, in relation quired where to which a special case is stated by a court of general or case stated. quarter sessions for obtaining the judgment or determination of a superior court." But a question has occasionally arisen Avhether, in cases Wliet'ier the *.. ,'. ..,.. , deiendint can where the justices have proceeded ^vitliout jurisdiction, and prove want of have nevertheless stated upon the face of the conviction jurisdiction in . . . . ,. . . , ,, justice by matter showing a jurisdiction, it be competent to the affidavit. defendant to prove the want of jurisdiction by affidavit. It certainly appears desirable that the court should have the power to entertain the question of jurisdiction. Some cases m'glit easily be suggested, in which not only great private but great public inconvenience might arise from leaving an invalid order or conviction unreversed, and great injustice might be caused by allowing justices out of or in sessions, b}' making their order or conviction good upon the face of it, to give themselves a jurisdiction over matters not entrusted to them by law. Whether a mandamus would lie in such a case to oblige Pi-obaiil\ them to make a correct statement, is a question which the correct the <^. B. D. would, at least in the majority of instances, pro- statenn'iit bably answer in the negative ; for though it is true that in some cases, where there has been a clear omission of some material ingredient in a conviction, the court has by man- damus ordered it to be supplied ; as in lie liix, 4 I). & 11. 352; R. V. Marsh, Id. 260; R. v. Warnford, 5 Id. 489 ; R. V. Allen, Id. 490 ; yet this has been done onl_y after the order or conviction had been returned upon a certiorari ; and it either clearly appeared, or was shown by affidavit, to the court, that the whole or some material portions of the evi- dence had been omitted (see the observations of the court 662 CREPPS V. DURDEN ET ALIOS. Certiorari. The court has refused to com])el by mandamus the court below to raise a particular question. "Will tlie court above allow evidence of defcft of juris- diction by affidavit ': Cases in whicli tbiH has been allowed. on these cases in II. v. Wilson, 1 A. & E. 627) ; and the mandamus went, not to compel the court below to insert a particular thing, or raise a particular question, upon their return, but merel^y to oblige them to set out an integral part of the case, which must have existed, and had been omitted. I say nmist have existed, because in jR. v. Wilson, Avhere evi- dence might or might not have been acted on, the court would not send the mandamus. And there are cases in which the court has refused to interfere by mandamus to compel the courts below to raise a particidar question ; for instance, in R. v. Hewcs, 3 A. & E. 725, the jury had returned a verdict, guilty by mischance ; the chairman of the sessions told them they must find a general verdict ; and they found a verdict of guilty, and recommended to mercy on the ground that the act was not done with a malicious intent. The motion was for a man- damus to set the clerk of the peace's minute right according to the facts, in order that a writ of error might be sued out. The rule was discharged. Patteson, J., said, " The case of a mandanvus to enter continuances and hear is not like this. There the justices are ordered merely to hear an appeal, and to enter continuances because those are neces- sary in order to enable them to hear ; so, in the present case, if it were necessary for the defendant to have a record made up, and the officer refused to do it, the party having a right to avail himself of the record might apply for a mandamus, as in li. v. JJ. of Middlesex, 5 B. & Ad. 1113. I have alwa3's understood that this court might send a man- damus to an inferior court to do its duty i7i general terms, but not to do a ixirticular tiling, as to make an alteration here or there in the clerk of the peace's minutes ; " see R. v. J J. of Middlesex, 9 A. ct E. 540, 54G ; 7i'. v. Lords of the Treasury, 10 A. & E. 179 ; R. v. Lords of the Treasury, Id. 374 ; R. V. E. Counties R. Co., Id. 531, 547 ; R. v. JJ. of Buckinghamshire, 3 Q. B. 800 ; R. v. JJ. of Bristol, 18 Jur. 426, note a ; R. v. Dayman, 7 E. & B. 672. Sui^posing that the court below cannot be compelled by mandamus to show the defect of jurisdiclion upon the record, the n(!xt question is, will the court above allow evidence of such defect of jurisdiction to be laid before it by way of jirildiivit, oil the record being brought before it by a writ of certiorari ? In R. V. *S7. James's, Westminster, 2 A. i^ E. 241, it was remarked by Taunton, -I. (a judge whose obiter dicta are CREPPS V. BURDEN ET ALIOS. 603 always worthy of the greatest attention) that this has been C ertiorari. constantly done. In it. v. Great Marlow, 2 East, 244, an appointment of overseers, good on the face of it, was allowed to be questioned by affidavit on the ground of a defect of jurisdiction, and was finally quashed. The court in that case took time to consider the practice with regard to re- ceiving affidavits; and . Lawrence, J., mentioned several similar cases in which that course had been pursued. A similar course seems to have been pursued with an order of the quarter sessions in E. v. J J. of IVest Riding of York s., 5 T. R. 629. In li. v. JJ. of atcshirc, 1 P. & D. 93, 8 A. 6 E. 400, the question was a good deal discussed ; and it seems to have been admitted that affidavits might be looked at for the purpose of showing a defect of jurisdiction. " It cannot be disputed," said Coleridge, J., in that case, "that there are many cases in which affidavits may be looked at in order to ascertain whether there was jurisdiction or not ; for suppose an order made, which was good on the face of it, but \Vhich was not made by a magistrate, it is clear that this fact may be shown to the court," Accord. R. v. Sheffield d- M. R. Co., 11 A. & E. 194. And it seems to be settled by the later cases that a defect of jurisdiction may be shown by affidavit, though the proceeding is so drawn up as to appear valid on the face of it. See the judgments in R. V. Bolton, 1 Q. B. 66; Westhury Union Case, 4 E. & B, 314 ; Re Penny, 7 Id. 660, where on certiorari an inquisition under the Lands Clauses Act, 1815, was quashed upon affidavits showing tliat the jury in assessing the damages took into account an item which was not a subject for compensation within the Act {Mortimer v. S. Wales R. Co., 1 E. & E. 375) ; Re Hopkins, E. B. & E. 100 ; R. v. Recorder of Camhridf/e, 8 E. & B. 637 ; R. v. Metropolitan R. Co., 32 L. J. Q. B. 867 ; Read v. Victoria Station R. Co., 32 L. J. Ex. 167 ; and R. v. Cheltenham. Commissioners, 1 Q. B. 467, where the defect consisted in the presence on the bench of interested parties as justices. On the other hand, nothing can be more common than to Yetconvic- „,.,.-,- , . ^ . , . , . tiou or order find it laid down tiiat a conviction or order is conclusive jg said x» be of the matter stated in it for the purpose of showing a eonehisive. jurisdiction. See the judgment of Batteson, J., Re Clarke, 2 Q. B. 634; see also Colonial Bank of Australasia v. Willan, L. R. 5 P. C. 417. Possiblv the distinction may be between cases in which P*JS3i^le " '' . explumition. the conviction or order is made by persons who are admitted 664 CREEPS V. DURDEN ET ALIOS. Certiorari. Cases in which the Court of Queen's Bench will on certiorari entertain affidavits. "Where there was no evidence of an essential fact. to constitute a legal court, and who have stated facts which, on information heing laid, or a case coming before them, would be matter to be proved, and adjudicated upon by them, and cases in which the objection is, that they are not a court at all, because not in fact magistrates, or because interested, or because they sat out of the limit of their jurisdiction, or for some other reason, striking at their existence as a court, so that the objection is, not that the statement of a court is erroneous, but that the source of the statement is not a court at all ; see the judgment of Bramwell, B., lie Baker, 2 H. & N. 219. But it may well be doubted whether this distinction alfords a sufficient test. It seems that the Queen's Bench Division will on certiorari entertain affidavits where the conviction is good on the face of it, — not only to show that preliminary matters, requii'ed to give the justice jurisdiction to enter upon an inquiry into the merits of the case, were wanting; see R. v. Bolton, 1 Q. B. &Q, ; B. V. Badger, 6 E. & B. 137 ; B. v. IVood, 5 Id. 49 ; B. v. JJ. of Totness, 2 L. M. & P. 230 ; the judgments in B. v. ,sV. Glares I). S.,^8 E. & B. 529; Be Smith, 3 H. & N. 227 ; B. v. Farmer, (1892) 1 Q. B. 637 — or that circumstances appeared in the course of the inquiry which ousted his jurisdiction : B. v. Nunneley, E. B.'& E. 852; B. v. Cridland, 7 E. & B. 853; Backhouse V. Bishoinc ear month, 30 L. J. M. C. 118; B. v. Stinvpson, 4 B. el' S. 301 — but also that there was no eridence to prove some fact, the existence of which was essential to establish the offence charged. It must be remembered that before 11 & 12 Vict. c. 43, the evidence must have been set forth in the conviction, and, if there was none to support some material part of the information, the conviction would have been quashed; B. V. Smith, 8 T. B. 588. The alteration by statute of the forms of conviction, thougli it dispenses with the necessity of setting forth the evidence, plainly does not narrow the jurisdiction of the Queen's Bench to quash convictions void for matter of substsmce ; and, in order to exercise this juris- diction in respect of convictions bad for want of evidence, but drawn up according to the general form prescribed by statute, it is necessary that the court sliould receive affidavits. See the judgments in Bailey's Case, 3 E. & B. 007, where affidavits were admitted for the purpose of impeaching a conviction under the Masters and Servants Act, 4 Geo. 4, c. 31, by showing that tliere was no evidence before the CREPPS V. DURDEN ET ALIOS. 665 justices from whicli the relation of master and servant could Certwrari. be inferred. "Affidavits," said Pollock, C. B., in Re Baker, "1 H. & N. <%a« where 219, 223, " may be used for the purpose of showing that fiictinT. there was no evidence at all, but if there is contlirting evidence, it is for the justice to decide upon it." (But see Stanhope v. Thorshi/, L. K. 1 C. P. 423.) In lie Thompson, G H. & N. 193, where the prisoner had been charged with unlawfully assaulting and abusing Susannah H., and it was plain iipon the evidence that, if any offence, a rape or assault with intent to ravish had been committed, yet the justices convicted the prisoner of a common assault, it api)ears to have been the opinion of Pollock, C. B., and AVilde, B., that the conviction Avas bad, because the justices could not have believed that only a common assault had been committed. But the court was divided, and ]]Hki)ison v. Diittun, 3 B. it S. 821, may be considered a decision contrary to that opinion. As a general rule the jurisdiction of justices to convict Jurisdiction . , , . p , ■ , 1 • 1 • 1 ,> ousted where summarily ceases as soon as a clann oi title m hnnseli ^,^,^,1 ^^c (though onl}^ colourable, provided the right claimed be one claim of title. known to the law) is bond fide made by the party against whom the proceeding is instituted ; 11. v. Cridland, 7 E. & B. 853; Cornwell v. Sanders, 3 B. & S. 206; li. v. Stiinpstni, 4 Id. 301. In Hudson v. Macliae, 4 Id. 585, the claim was made, bond fide, but to a right impossible in law, and a conviction was upheld ; followed in Foidger v. Steadman, L. B. 8 Q. B. 65 (disapproving of Jones v. Taylor, 1 E. & E. 20), and in Hargreares v. Diddams, L. B. 10 Q. B. 582 ; see also Leatt v. Vine, 30 L. J. M. C. 207 ; Cornwell v. Sanders, supra ; and Watkins v. Major, L. Pi. 10 C. P. 662, where a distinction is drawn between a conviction under the statutes for the protection of game ami the ordinary case of a conviction for whicli it is said to be necessary to prove a mens rea. The question whether there be such a bond fide claim of right is a collateral question for the justices to decide, but the su2)erior court on affidavit will review their decision ; see R. v. Stinipson, 4 B. I'v- S. 301, and Leicester U. S. A nth. v. Holland, 57 L. J. M. C. 75, where it was held that there was not, and Paleij v. Birch, 16 L. T. 410, where it was held that there icas evidence to justify the finding that the claim was not bond fide set up. See also Willianis v. Adams, 2 B. il' S. 312; Legge v. Pardoe, 30 L. J. M. C. 108; R. v. Sandford, 666 CREFPS V. DUKDEN ET ALIOS. (Certiorari. 30 L. T. 601; Lovcsij V. Stallaixl, Id. 792; Mathews v. Carpenter, 16 L. R. Ir. 420; Coles v. Miles, 57 L. J. M. C. 132 ; Johnston v. Meldon, 30 L. E. Ir. 15 ; Edicards v. Cock, 58 J. P. 398. Oiigiuofiule This rule as to the cesser of the jurisdiction to convict summarily on a hond fide claim of right being set up is founded, not on statute, but on general principles of law ; see per Blackburn, J., in Cornwell v. Sanders, supra ; and per Crompton, J., in li. v. Stimpson, supra. There are other similar cases in which restrictions are placed on the justices' jurisdiction by statute. meZcT^""' ^^^ ■^' ^' ^^""*^^^2/> E. B. & E. 852, an order, made by Similar rule justices for payment of a church-rate, under 53 Geo. 3, in statute. ^^ 1^1, which provides that if the validity of the rate be disputed, and the party disputing give notice to the justices, they are to forbear giving judgment thereon, was quashed on affidavits showing that a reasonable objection had been made to the validity of the rate, notwithstanding which the justices proceeded with the case, holding, groundlessly, that the objection was not made bond fide. Erie, J., said : " Without coming to the much disputed point whether a fact which is in doubt is one which affects the jurisdiction in the first instance, or one upon Avhich magistrates are to judge, I think this case is clear enough. The jurisdiction of the justices is to decide whether the rate is made and demanded. But then there is a collateral point on which the jurisdiction depends, that is, whether the validity of the rate is disputed. If it is, the justices are to hold their hands. That is collateral to the merits ; and a matter on which the jurisdiction depends." And, as laid down in the judgment of Bunhury v. Fuller, 9 Exch. 140, " it is a general rule that no court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit to its jurisdiction depends To take the simplest case : Suppose a judge with jurisdiction limited to a particular hundred, and a matter is brcjught before him as having arisen within it, but the party charged contends that it arose in another hundred, this is clearly a collateral matter independent of the merits ; on its being presented, the judge must not immediately forbear to proceed, but must incjuire into its truth or falsehood, and for the time decide it, and either I)roceed or not on the principal subject-matter according as he finds on that [)()int ; but this decision must be open to OREPPS V. BURDEN ET ALIOS. 667 (luestion, and if he has impropedy either foreborne or pro- Certiorari. ceeded on the main question in consequence of an error, on this the Court of Queen's Bench will issue its mandamus or prohibition to correct his mistake." See further Kx p. Mannering, 31 L. J. M. C. 153. Where a statute, 24 & 25 Vict. c. 97, s. 52, enacted that nothing therein contained should " extend to any case where the party acted under a fair and reasomdde supposition that he had a right to do the act complained of," and the justices found that the appellant did not act under a fair and reasonable supposition and convicted him, the court upheld the conviction, holding that the above express provision overrode the proviso usually implied as to summary convic- tions, that a bond fide claim of right is sufficient to oust the jurisdiction of the justices ; White v. Feast, L. R. 7 Q. B. 353. See this case distinguished in Denny v. Thivaites, 2 Ex. D. 21. By 24 & 25 Vict. c. 100, s. 46, it is provided that justices " shall not hear and determine any case of assault in which any question shall arise as to the title to land." Under this section it was held that justices are prohibited where title is claimed from going into the question of excess of violence and convicting suunnarily upon that ; 11. v. Pearson, L. R. 5 Q. B. 237. Assuming that a defect of iurisdiction may in these cases Erf'ect of , ,. , . 1 ^ clause m be shown by affidavit, every case, or almost every case, oi a statute taking defect of iurisdiction in the convicting magistrate or inagis- ^^^''^y *^^. in, • 111 ■ • J- j^i 1 • • certiorari. trates would be reviewable by certiorari ; tor though it is now usual for the statute creating the offence to contain a clause taking away the certiorari, yet such clauses do not, generally speaking, apply to cases where there was no juris- diction to convict, such cases not falling within the statute at all ; R. v. JJ. of Somersetshire, 5 B. & C. 816 ; R. v. JJ. of West Riding of Yorks., 5 T. R. 629 ; R. v. Great Marlow, 2 East, 244 ; R. v. Wood, 5 E. & B. 49 ; S. C, nom. R. v. Rose, 24 L. J. M. C. 130 ; Colonial Bank v. Willan, L. R. 5 P. C. 417; Ex p. Bradlaugh, 3 Q. B. I). 509; nor do they apply to cases where the conviction has been obtained by fraud, as when a maltster had by collusion, and for the purpose of exonerating himself from penalties, under 7 & 8 Geo. 4, c. 52, procured the conviction of his servant ; R. v. Gillyard, 12 Q. B. 527 ; Colonial Bank v. Willan, supra. But there is a distinction between cases of a want of juris- Distiuctiou ,. . T ,. ■ 7 -J • • ■ •. ■ ii \' hatween want diction and ol an irregularity in exercising it : m the lormer of jurisdiction CEEPPS V. BURDEN ET ALIOS. Certinrari. case the certiorari lies notwithsttinding the private clause, in the latter it is taken away ; R. v. Bristol d- E. R. Co., 1 P. & D. 170, n., 11 A. & E. 202, n. ; R. v. Sheffield d- M. R. Co., 11 A. & E. 194 ; R. v. J J. of Warwickshire, 6 E. & B. 837 ; Lalor V. Bland, 8 Jr. C. L. R. 115 ; R. v. Bradley, 70 L. T. 379. In the first of these cases, indeed, the court went to an extent which seemed likely very much to confine the applicability of the writ of certiorari ; they threw out the opinion that in cases where the proceeding was merely irregular the clause taking away the certiorari applied, and that where it w'as void there was no occasion for it, and the court would not grant it. However, in the second case, the}'' were disposed to repudiate the application of this dilemma ; at all events, in cases in which the proceeding sought to he removed is not void on the face of it, hut is impugned by affidavit. And in R. v. Cheltenham Commis- sioners, 1 Q. B. 467, it w^as distinctly held that in a case of malversation such a clause would not operate. Though it has been endeavoured to show that the Queen's Bench has a right in case of defect of jurisdiction to enter- tain the objection founded upon such defect on affidavit, yet it must be observed that the court is not hound to do so uj)on certiorari ; for (excej^t where the application is by the party grieved; R. v. J J. of Surrey, L. li. 5 Q. B. 456) a certiorari, as has already been pointed out, is a w-rit, not of right, but in the discretion of the court to grant or to refuse (but see the judgment in Symonds v. Dimsdale, 2 Exch. 533). And cases may occur in which, though there may have been a defect of jurisdiction, still the court may conceive that the interests of justice would be rather impeded than advanced b}'' an}' summary interfei'ence on their part. In R. V. JJ. of Camhridyesltire, 4 A. t'(: E. Ill, Patteson, J., said, " With regard to the objections in point of juris- diction, I protest against its being understood that we can on every occasion look into extrinsic matter on motions to bring up orders by certiorari.''' " We must be cautious," said ('oleridge, A. " not to exceed our jurisdiction ; and wlien we find there is a court of appeal below, to which the matter bi'ought before us on affidavit might have been carried, I think we are confined to objections appearing on the face y tlie Summary Jurisdiction Act, 1879, s. 33, it is c 49 .s 33 . '" ' further provided that " (1) Any person aggrieved {Drapers (Jo. v. J ladder, 57 J. P. 200) who desires to question a C07i- viction, order, determination, or oilier proceeding {Sandgate L. B. V. Pledge, 14 Q. B. 1). 730) of a court of summary jurisdiction on the ground that it is erroneous in point of law, or is in excess of the jurisdiction, may apply to the CREPPS V. DURDEN ET ALTOS. 673 court {Exp. Curtis, 3 Q, B. D. 13) to state a special case 42 .t 43 Vict. settin<>" forth the facts of the case and the iirounds on wliicli - — '-^—^ — '■ — the proceedmg is questioned, and if the court decline to state the case, may apply to the High Court for an order r(^quiring the case to be stated. (2) The application shall he made and the case stated within such time and in such manner as may be from time to time directed by rules under this Act, and tlie case shall be heard and determined in manner prescribed by rules of court made in pursuance of" the Judicature Acts ; and, subject as aforesaid, the 20 & 21 Vict. c. 43, above stated, " shall, so far as it is applicable, apply to any special case stated under this section, as if it were stated under that Act ; provided that nothing in this section shall prejudice the statement of any special case under that Act." By Rule 18 of tlie Summary Jurisdiction Bules, 1886, Rules. made in pursuance of the above section, " an application to a court of summary' jurisdiction " under that section "to state a special case shall be made in writing, and a copy left with the clerk of the court, and may be made at any time within seven clear days from the date of the proceeding to be questioned, and the case shall be stated within three calendar months after the date of the application, and after the recognizance shall have been entered into;" WaUci'v y. Ddacomhe, 63 L. J. M. C. 77. The rules are set out in evtenso in the Weekly Notes, October 9th, 1886. A court has no power to state a special case under s. 33 of the Act of 1879 unless a written application has been made, and a copy thereof left with the clerk, in accordance with the above rule ; S. Stafford. Waterworks Co. v. Stone, 19 Q. B. D. 168; Loch-hart y, St. Allans, 21 Id. 188; Wcstmore v. Paine, (1891) 1 Q. B. 482. The provision as to stating the case within three months is only directory ; Ilii'jhcs v. Wavertree L. B., 58 J. P. 654. S.L.C. VOL. I. 43 LICKBAKEOW v. MASON. IN B. R., CAM. SCACC, ET DOM. FROC. [reported 2 t. e. 63 ; 1 h. bl. 357 ; and 6 east, 21 (1 E. R. 425).] The vendee of goods may, by assignment of tlie bills of lading to a hmd fidc transferee, defeat the vendor's right to stop them in transita in case of the vendee's insolvency. The consignor may stop goods in transitu before they get into the hands of the consignee, in case of the insolvency of the consignee ; but, if the consignee assign the bills of lading to a third person for a valuable con- sideration, the right of the consignor, as against such assignee, is chvested. There is no distinction between a bill of lading indorsed in blank, and an indorsement to a particular person. Trover for a cargo of corn. Plea, the general issue. The plamtiffs, at the trial before Buller, J,, at the Guildhall sittings after Easter Term, gave in evidence that Turing and Son, merchants at Middleburg, in the province of Zealand, on the 2'2nd July, 1786, shipped the goods in question on board the Endeavour for Liverpool, by the order and directions and on the account of Freeman, of Eotterdam. Holmes, as master of the ship, signed four several bills of lading for the goods in the usual form unto order's or assigns ; two of \Yliich were indorsed ]jy Turing and Son, in blank, and sent, on the 22nd July, 1786, ])y them to Freeman, together with an invoice of the goods, who afterwards received them ; another of the bills of lading was retained by Turing and Son ; and the remaining one was kept Ijy Holmes. On the 25th July, 1786, Turing and Son drew four several bills of exchange upon Freeman, amounting in the whole to AllL, in respect of the price of the goods, which were after- wiirds accepted by Freeman. On the 25th July, 1786, Freeman sent to the plaintiffs the two bills of lading, together with the invoice which he had received from Turing and Son, in the same Htate in which he received them, in order that the goods might be taken possession of and sold by them on Froeuian's account ; LICKBAEROW V. MASON. 675 and on the same clay Freeman drew three sets of l)ills of exchange to the amount of 520Z. on the plaintiffs, who accepted them, and have since duly paid them. The plaintiffs are creditors of Freeman to the amount of 542/. On the 15th August, 1786, and before the four bills of exchange drawn by Turing and Son on Freeman became due. Freeman became bankrupt : those bills were regularly protested, and Turing and Son have since been obliged, as drawers, to take them up and pay them. The price of the goods so shipped by Turing and Son is wholly unpaid. Turing and Son, hearing of Free- man's bankruptcy on the 21st August, 1786, indorsed the bill of lading so retained by them to the defendants, and transmitted it to them, with an invoice of the goods, authorising them to obtain possession of the goods on account of, and for the use and benefit of, Turing and Son, which the defendants received on the 28th August, 1786. On the arrival of the vessel with the goods at Liverp6ol, on the 28th August, 1786, the defendants applied to Holmes for the goods, producing the bill of lading, who there- upon delivered them, and the defendants took possession of them and for and on account of Turing and Son. The defendants sold the goods on account of Turing and Son, the proceeds whereof amounted to 557Z. Before bringing this action the plaintiffs demanded the goods of the defendants, and tendered to them the freight ?. nd charges ; but neither the plaintiffs nor Freeman have paid or offered to pay the defendants for the goods. To this evidence the defendants demurred ; and the plaintiffs joined in demurrer. This was argued in last Trinity Term by En^hinc in support of the demurrer, and Manly against it ; and again, on this day, by She2)he7'd in support of the demurrer, and Bearcroft contra. SJteplierd (a), after observing that, as the defendants were the agents of Turing and Son, the general question was to be con- sidered as between the consignor and the indorsee of the bill of lading, contended, first, that, as between the vendor and vendee of goods, the former has a right to stop the goods in transitu, if the latter become insolvent before the delivery of them. And, secondly, that such right cannot be divested by the act of the (a) As the second argument, with the evciything that was said upon the sub- judgment of the court, comprehended ject, the former argument is omitted. 43 2 670 LICKBARROW V. MASON. (Argument.) vendee's indorsing over the bill of lading to a third person. The first question has been so repeatedly determined, that it is scarcely necessary to cite authorities in support of it. (The plaintiff's counsel admitted the position.) Then, in order to determine the second, it is material to consider the nature of a bill of lading. A bill of lading cannot by any means be con- strued into a contract on the part of the consignor to deliver the goods mentioned in it to the consignee ; it is only an undertaking by the captain to deliver the goods to the order of the shipper. As between the consignor and consignee, it is a bare authority to the captain to deliver, and to the consignee to receive them. That this is the true nature of a bill of lading appears from all the writers upon mercantile law, as Molloy, Postlethwayte, and Beawes. If it be any sort of instrument, it must be contended to amount to a contract by the consignor to deliver the goods to the consignee ; but no such contract arises upon it, because the consignor is not even a party to it ; and no action could be framed upon it agamst the consignor. Then, if it be only a bare authority to the one to carry, and to the other to receive the goods, the consignee cannot transfer a greater right than he has ; neither can the right of the consignor be divested by the act of the consignee. If a bill of lading be a negotiable instrument, and convey an indefeasible property in the goods, it must be so by the custom of merchants ; but such custom is not to be found in any of the books upon the subject. There are cases which establish a contrary doctrine, in which the courts have held that the rights of the assignees are the same as the rights of the original consignees. It cannot, indeed, be disputed but that, as between the consignee and the indorsee, the indorsement of a bill of lading is a complete transfer of the property which the con- signee has in it ; but the cases go no further. Snee v. Prescot (b) is precisely similar to the present. There the bill of lading was indorsed in l^lank, and afterwards indorsed over by the consignee to his assignees : those assignees were some of the defendants in tfiat suit, and they stood in the same situation with the present plaintiffs. In that case, before the goods arrived, and after the indorse! Ill 111 oi' tlie l)ill of hiding ])y the consignee, the consignee {/>) 1 Atk. 215. LICKBARUOW V. MASON. 67T having become bankrupt, the goods were stopped in transitu Ijy order of the consignor, by an indorsement of the bill of lading, which was left with him, to another of the defendants ; there Lord Hardwicke decreed that the indorsement did not absolutely transfer the property in the goods in the event of the consignee's becoming bankrupt before the arrival of the goods ; that as the goods had been stopped in tmnsitu, by order of the consignor, he had a right to detain them till the sum which he was in advance to the consignee on account of them was paid ; and that the surplus arismg from the produce of the goods should be paid to the indorsees of the consignee. Now, unless Lord Hardwicke had been of opinion that the indorsement by the consignee did i^ot absolutely transfer the property in the goods, he would have decreed that the indorsees should have been first paid the money which they had advanced upon the credit of the bill of lading, and tl:ien that the surplus should have been paid to the con- signor ; but instead of that he gave a priority to the consignor. This doctrine is not only laid down in a court of equity, but confirmed in a court of law in Savignac v. Cnff (c), where the same question was tried between the same parties as at present. There Salvetti, a merchant in Italy, consigned a quantity of skins to Lingham, residing in London, and sent him a bill of lading indorsed in blank. Lingham, the consignee, indorsed it to Savignac for valuable consideration, at the invoice price, showing him at the same time the letters of advice and the bills of parcels. The consignee not accepting the bills oi exchange wdiich the consignor had drawn upon him for the amount of the goods, the consignor indorsed the bill of lading remaining in his hands to Cuff, the defendant, with orders to seize the goods before they got into the hands of the consignee, which he did ; and the action was brought against him by the indorsee of the consignee to recover the value of the goods. Wallace, Solicitor- General, there argued that by the indorsement of the bill of lading the property was transferred. But Lord Mansfield was of opinion that the consignor had a right to stop the goods in transitu in the case of the insolvency of the consignee, and that the plaintiff, standing in the same situation with the original consignee, had lost his lien. Lord Mansfield was first of opinion, ((•) Sittiugs at Guildhall, cor. Lord Jluiisfield, Tr. 1778. 678 LICJKBARROW V. MASON. (Argument.) that there was a distinction between bills of lading indorsed in blank and otherwise ; but he afterwards abandoned that ground. But in that case, as the consignor had in point of fact received 150^. from the consignee, there was a verdict for the plaintiff for that sum. So that the result of the verdict was, that the con- signor was entitled, under those circumstances, to retain all the goods consigned, deducting only the sum which he had actually received for part. Both these cases establish the construction of the bill of lading contended for : and it is to be observed that the verdict in the latter was acquiesced in. And indeed to construe it otherwise would be opening a great door to fraud, and would be placing the indorsee of a consignee of a bill of lading in a better situation than the consignee himself in case of his insolvency. Suppose the consignee assign over to a third person, who becomes insolvent before the delivery of the goods, such assignee would then, notwithstanding his insolvency, have a right to get the goods into his possession ; for, if the act of indorsement absolutely divests the property out of the consignor, he can never afterwards get possession of the goods again ; or else this consequence would follow, that the vendor would have a right to seize the goods in transitu till the indorsement by which his right would be divested, and that by the act of insolvency of the indorsee it would be revested. This has never been con- sidered to be the same sort of instrument as a bill of exchange ; they are not assimilated to each other in any treatise upon the subject : nay, bills of exchange are said to be sui juris. In their nature they are different : a bill of exchange always imports to be for value received ; but the very reverse is the case with a bill of lading. For in few, if any, instances, is the consignor paid for his goods till delivery ; and bills of exchange were first invented for the purpose of remitting money from one country to another, which is not the case with bills of lading. As to WrigJit v. Cainphdl {d), which may be cited on the other side, it will perhaps be said that the court awarded a new trial only on the grouii'l of fraud ; l)ut non constat that, if there had been no HUHpi(;i()n of fraud, a now trial would not have been granted. So that tlio law cannot be considered to have been decided in that (d) 4 J5urr. '^046. LICKBARUOW V. MASON. 679 case ; for when a new trial is moved for, if the facts warrant it, the court awards a new trial without going into the law arising upon those facts. In such cases the law is still left open to be considered on a different finding ; since it would be nugatory to determine the point of law, which may not perhaps be applicable to the facts when found. At the most, there is only an inference of law to be drawn from that case, which is not sullicient to overturn established principles. Besides, this case is distin- guishable from that ; for there it appeared that the consignee was the factor of the consignor, and as such might bind his principal by a sale. Bearcroft, contra. — The question is whether the hand fide indorsement for valuable consideration of a bill of lading to a third person is not an absolute transfer of the whole property ? This question is of infinite importance to the mercantile world, and has never yet been put in a way to receive a solemn decision in a court of law. For at most it has only been considered in a court of equity upon equitable principles, or at nisi priiis in a case the correct state of which is to be doubted. The form of the bill of lading is material to be attended to in determining this case ; it is, that the goods are to be delivered " to order or to assigns ; " therefore, on the very face of the instrument, there is an authority to the captain to deliver them to the consignee or to liis assigns; and the question here is, who are his assigns? As between the consignor and consignee the rule contended for is not now to be disputed, since it has been confirmed by so many authorities ; though, perhaps, it were much to be wished that it had never been established : but there will be danger in extending it farther. With respect to Snee v. Prescot, when it is considered who were the parties to the cause, in what court, and upon what principles it was decided, it will not be found sufficient to determine the present case. The actors, the plaintiffs, were not the innocent purchasers of a bill of lading ; they were the assignees of a bankrupt, and prayed by their bill to get possession of the goods, notwithstanding they had not paid for them. But this is a case between the consignor and third persons who have paid valuable consideration for the goods. That case was likewise in a court of equity, where the leading principle is, that he icho seeks equity, must first do what is equitable ; there too the decision 680 LICKBARROW V. MASOxV. (Argument.) was founded, in some measure, on the custom of the Leghorn trade, and the construction of the statute relating to mutual credit ; so that there were united a number of circumstances which, taken altogether, induced Lord Hardwicke's decree, and which do not exist in the present case. And it is to be remarked that Lord Hardwicke, thinking it a harsh demand against the consignors, said, " he would lay hold on anything to save the advantage " which the consignors had, by regaining the posses- sion of the goods before they got into the hands of the indorsees of the consignee. Then, as to Sarignac v. Cvff, that had not even the authority of a nisi prius determination. Lord Mans- field gave no opinion upon the question ; for though he said there was no doubt but that, as between vendor and vendee, the former might seize the goods in transitu, if the latter became insolvent before they were delivered, yet there he stopped : so that the inclination of his mind may be presumed to have been against extending the rule. And, after all, the whole circumstances of that case were left to the consideration of a jury. Since Lord Raymond's time (e) it has been taken to be clear and established law that a general indorsement of a bill of lading does transfer the property. And Holt, C.J., then said, "that a consignee of a bill of lading has such a property as that he may assign it over." It has now been contended that the right of the consignor ought not to be divested by the act of the consignee : but it is not by the act of the consignee alone ; for the consignor has by his own act enabled the consignee to defeat his right. If he had been desirous of restraining the negotiability of the bill of lading, instead of making a general indorsement, he should have made a special indorsement to his own use. And then the holder of the bill of lading would have been considered as a trustee for the consignor. The custom of merchants has established that the delivery of a bill of lading transfers the whole property ; Evans v. Marlett, 1 Ld. Eaym. 271 ; Wrhiht v. Campbell, 4 Iknr. 20^6; and Caldwell v. Hall, 1 T. 11. 205 (/). Then it has been said that a bill of lading is not transferable like a bill of exchange : but the custom of merchants has made that transferable which in its nature perhaps is not so ; and the cases above referred (c) 1 L(l. Ruyni. 'J71. (/) Sir //il>lcfore Lord IMnnsfield, C.J. LICKBARROW V. MASON. G87 the goods. With respect to Stakes v. La liicicrc (A), perhaps there may be some doubt about the facts of it : however, it was determined upon a different ground ; for the goods were in the hands of an agent for both parties : that case, therefore, does not impeach the doctrine laid down in Wriglit v. Camphell. It has been argued at the bar that it is impossible for the holder of a bill of lading to bring an action on it against the consignor ; perhaps that argument is well founded ; no special action on the bill of lading has ever been brought (/) ; for, if the bill of lading transfer the property, an action of trover against the captain for non-delivery, or against any other person who seizes the goods, is a proper form of action. If an action be brought by a vendor against a vendee, between whom a bill of lading has passed, the proper action is for goods sold and delivered. Then it has been said that no case has yet decided that a bill of lading does transfer the property : but in answer to that it is to be observed that all the cases upon the subject — Evans v. Marlctt, IVriglit V. Campbell, and Calda-ell v. Ball, and the universal understanding of mankind — preclude that question. The cases between the consignor and consignee have been founded merely on principles of equity, and have followed up the principle of Snee v. Prescot ; for, if a man has bought goods and has not paid for them, and cannot pay for them, it is not equitable that he should prevent the consignor from getting his goods back, if he can do it before they are in fact delivered. There is no weight in the argument of hardship on the vendor : at any rate that is a bad argument in a court of law ; but in fact there is no hardship on him, because he has parted with the legal title to the consignee. An argument w^as used with respect to the difficulty of determining at what time a bill of lading shall lie said to transfer the property, especially in a case where the goods were never sent out of the merchant's warehouse at all : the answer is, that under those circumstances a bill of lading could not possibly exist, if the transaction were a fair one ; for a bill of lading is an acknowledgment, by the captain, of having re- ceived the goods on board his ship : therefore it W'ould be a fraud in the captain to sign such a bill of lading, if he had not received (k) Hil. 25 G. 3. statute, ace jmst, iiinotd, p. 739. (l) As to the right to sue now given hy 688 LICK BARROW V. MASON. (BULLEE, J.) goods on board ; and the consignee would be entitled to his action against the captain for the fraud. As the plaintiff in this case has paid a valuable consideration for the goods, and there is no colour for imputing fraud or notice to him, I am of opinion that he is entitled to the judgment of the Court. Grose, J. — After this case has been so elaborately spoken to by my brethren, it is not necessary for me to enter fully into the question, as I am of the same opinion with them. But I think that the importance of the subject requires me to state the general grounds of my opinion. I conceive this to be a mere question of law, whether, as between the vendor and the assignee of the vendee, the bill of lading transfers the property. I think that it does. With respect to the question as between the original consignor and consignee, it is now the clear, known, and established law that the consignor may seize the goods in t)-ansitu, if the consignee become insolvent before the delivery of them. But that was not always the law. The first case of that sort was Wiseman v. Vandeputt in Chancery (m), when, on the first hearing, the Chancellor ordered an action of trover to be brought, to try whether the consignment vested the property in the consignees ; and it was then determined in a court of law that it did ; but the Court of Equity thought it right to interpose and give relief : and since that time it has always been con- sidered, as between the original parties, that the consignor may seize the goods before they are actually delivered to the consignee in case of the insolvency of the consignee. But this is a ques- tion between the consignor and the assignee of the consignee, who do not stand in the same situation as the original parties. A bill of lading carries credit with it ; the consignor b}- his indorsement gives credit to the bill of lading, and, on the faith of that, money is advanced. The first case that I find, where an attempt was made to introduce the same law between the con- signor and the indorsee of the consignee, is Snec v. Prescot; but as my brother Ikiller has alread}^ made so many observations on that case, it would ))0 l)ut repetition in me to go over them again, us 1 t;iit,ir(;iy agree with him in them all, as well as in those (m) 2 Villi. 203. LICKBAEEOW V. MASON. 689 which he made on the other cases. Therefore I am of opinion that there should be judgment for the plaintiff. Judgment for the plaintiff (?i). MASON AND OTHERS v. LICKBARROW AND OTHERS, IN THE EXCHEQUER CHAMBER, IN ERROR, (o) The defendants in tlie original action, having brought a wiit of error in the Exchequer Chamber, after two arguments, the following judgment of that court was then delivered by Lord Loughborough. — This case comes before the court on a demurrer to the evidence ; the general question, therefore, is, whether the facts offered in evidence by the plaintiffs in the action are sufficient to warrant a verdict in their favour ? The facts are shortly these : On the 22nd Julj^ 1786, Messrs. Turings shipped on board the ship Endeavour, of which Holmes was master, at Middleburgh, to be carried to Liverpool, a cargo of goods b}^ the order and directions and on the account of Free- man, of Rotterdam, for which, of the same date, bills of lading were signed on behalf of the master, to deliver the goods at Liverpool, specified to be shipped by Turings to order or to assigns. On the same 22nd July, two of the bills of lading, indorsed in blank by Turings, were transmitted by them, together with an invoice of the goods, to Freeman at Eotterdam, and were duly received by him, that is, in the course of jDOst, one of the bills being retained by Turings. I take no notice of there being four bills of lading, because on that circumstance I lay no stress. On the 25th July, bills of exchange for a sum of 477Z., being the price of the goods, were drawn by Turings, and accepted by Freeman at Rotterdam ; and Freeman on the same day transmitted to the plaintiff's in the action, merchants at Liverpool, the bills of lading and invoice, which he had received (n) This judgment was afterwards re- such cases the consignor may stop the versed in the Exch, Cham. ; see Mason goods in transitu, though the consignee V. Lickharroiv, which follows. But, the assign the bills of lading to a third record being afterwards removed into the person for a valuable consideration, the H. L., a venire cle novo was awarded in right of the consignor not being divested June, 1793 ; s^e post, p. 719. by the assignment. But this judgment (o) They held that, where the consignee was reversed on account of an informality of goods becomes insolvent, tha consignor [b&q post, p. 701), and the latter ])oiut is may stop them in transitu, before the now settled otherwise, consignee gains possession ; and that in S.L.C. — VOL. I. 44 690 LICKBARROW V. MASO:^^. (Lord LOUGHBOEOUGH.) from Turings, in order that the goods might be sold by them on his account ; and of the same date drew upon them bills to the amount of 520/., which were duly accepted, and have since been paid by them ; and for which they have never been reimbursed by Freeman, who became a bankrupt on the 15th August following. The bills accepted by Freeman, for the price of the goods shipped by Turings, had not become due on the 15th August, but on notice of his bankruptcy they sent the bill of lading which remained in their custody to the defendants at Liverpool, with a special indorsement to deliver to them and no other : which the defendants received on the 28th August, 1786, together with the invoice of the goods and a power of attorney. The ship arrived at Liverpool on the 28th August, and the goods were delivered by lhe master, on account of Turings, to the defendants, who, on demand and tender of freight, refused to deliver the same to the plaintiffs. The defendants, in this case, are not stakeholders, but they are in effect the same as Turings, and the possession they have got is the possession of Turings. The plaintiffs claim under Freeman ; but, though they derive a title under him, they do not represent him, so as to be answerable for his engagements ; nor are they affected by any notice of those circumstances which would bar the claim of him or his assignees. If they have acquired a legal right, they have acquired it honestly ; and if they have trusted to a bad title, they are innocent sufferers. The question then is, whether the plaintiffs have a superior legal title to that right which, on principles of natural justice, the original owner of the goods not paid for has to maintain that possession of them, which he actually holds at the time of the demand ? The argument on the part of the plaintiffs asserts that the indorsement of the bill of lading by the Turings is an assign- ment of the property in the goods to Freeman, in the same manner as the indorsement of a bill of exchange is an assign- ment of the debt: that Freeman could assign over that property, and that by delivery of the l)ill of lading to the plaintiffs for valuable consideration, they have a just right to the property conveyed by it, not affected l)y any claim of the Turings of ■which thoy had no notice. On the part of the defendant it is LIOKBARROW V. MASON. 691 nr,i:^ued that the hill of lading is not in its nature a negotiable instrument ; that it more resembles a cJiose in action ; that the indorsement of it is not an assignment that conveys any interest, but a mere authority to the consignee to receive the goods mentioned in the bill ; and therefore it cannot be made a security by the consignee for money advanced to him ; but the person who accepted it must stand in the place of the consignee, and cannot gain a better title than he had to give. As these propositions on either side seem to be stated too loosely, and as it is of great importance that the nature of an instrument so frequent in commerce as a bill of lading should be clearly defined, I think it necessary to state my ideas of its nature and effect : — A bill of lading is the written evidence of a contract for the carriage and delivery of goods sent by sea for a certain freight. The contract in legal language is a contract of bailment ; 2 Ld. Eaym. 912. In the usual form of the contract the undertaking is to deliver to the order or assigns of the shipper. By the delivery on board, the ship-master acquires a special jDroperty to support that possession which he holds in the right of another, and to enable him to perform his undertaking. The general property remains with the shipper of the goods until he has disposed of it by some act sufficient in law to transfer property. The indorsement of the bill of lading is simply a direction of the delivery of the goods. When this indorsement is in blank, the holder of the bill of lading may receive the goods, and his receipt will discharge the ship-master ; but the holder of the bill, if it came into his hands casually without any just title, can acquire no property in the goods. A special indorsement defines the person appointed to receive the goods ; his receijjt or order would, I conceive, be a sufficient discharge to the ship-master ; and in this respect, I hold the bill of lading to be assignable. But what is it that the indorsement of the bill of lading assigns to the holder or the indorsee ? a right to receive the goods and to discharge the ship-master, as having performed his under- taking. If any further eft'ect be allowed to it, the possession of a bill of lading would have greater force than the actual posses- sion of the goods. Possession of goods is i^^'imd facie evidence of title ; but that possession may be precarious, as of a deposit ; 44 2 692 LICKBARROW V. MASON. (Lord Loughborough.) it may be criminal, as of a thing stolen ; it may be qualified, as of things in the custody of a servant, carrier, or a factor. Mere possession, without just title, gives no property ; and the person to ^Yhom such possession is transferred by delivery must take his hazard of the title of his author. The indorsement of a bill of lading differs from the assignment of a cJiose in action, that is to say, of an obligation, as much as debts differ from effects. Goods in pawn, goods bought before delivery, goods in a ware- house, or on ship-board, may all be assigned. The order to deliver is an assignment of the thing itself, which ought to be delivered on demand, and the right to sue if the demand is refused is attached to the thing. The case in 1 Ld. Kaym. 271 was well determined on the principal point, that the consignee might maintain an action for the goods, because he had either a special property in them, or a right of action on the contract : and I assent to the dictum, that he might assign over his right. But the question remains. What right passes by the first indorsement, or by the assignment of it ? An assignment of goods in pawn, or of goods bought but not delivered, cannot transmit a right to take the one without redemption, and the other without payment of the price. As the indorsement of a bill of lading is an assignment of the goods themselves, it differs essentially from the indorsement of a bill of exchange ; which is the assignment of a debt due to the payee, and which, by the custom of the trade, passes the whole interest in the debt so com- pletely, that the holder of the bill for a valuable consideration without notice is not affected even by the crime of the person from whom he received the bill. Bills of lading differ essentially from bills of exchange in another respect. Bills of exchange can only be used for one given purpose, namely, to extend credit by a speedy transfer, of the debt which one person owes another, to a third person. Bills of lading may be assigned for as many different purposes as goods may be delivered. They may be indorsed to the true owner of the goods by the freighter, who acts merely as his servant. They may be indorsed to a factor to sell for the owner. They may 1)0 indorsed l)y the seller of the gopds to the buyer. They are not drawn in any certain form. They some- LICKBARROW V. MASON. 693 times do and sometimes do not express on whose accomit and risk the goods are shipped. They often, especially in time of war, express a false account and risk. They seldom, if ever, bear upon the face of them any indication of the purpose of the indorsement. To such an instrument, so various in its use, it seems impossible to apply the same rules as govern the indorsement of bills of exchange. The silence of all authors treating of commercial law is a strong argument that no general usage has made them negotiable as bills. Some evidence ap- pears to have been given in other cases (o) that the received opinion of merchants was against their being so negotiable. And, unless there was a clear, established, general usage to place the assignment of a bill of lading upon the same footing as the indorsement of a bill of exchange, that country which should first adopt such a law would lose its credit with the rest of the commercial world. For the immediate conse:|uence would be to prefer the interest of the resident factors and their creditors to the fair claim of the foreign consignor. It would not be much less pernicious to its internal commerce ; for every case of this nature is founded in a breach of confidence, always attended with a suspicion of collusion, and leads to a dangerous and false credit, at the hazard and expense of the fair trader. If bills of lading are not negotiable as bills of exchange, and yet are assignable, what is the consequence ? That the assignee by indorsement must inquire under what title the bills have come to the hands of the person from whom he takes them. Is this more difticult than to inquire into the title by which the goods are sold or assigned ? In Hartop v. Hoare (p) jewels deposited with a goldsmith were pawned by him at a banker's. Was there any imputation, even of neglect, in a banker trusting to the apparent possession of jewels by a goldsmith ? Yet they were the property of another, and the banker suffered the loss. It is received law, that a factor may sell, but cannot l^awn, the goods of his own consignor ; Patterson v. Task, 2 Str. 1178. The person, therefore, who took an assignment of goods from a factor in security, could not retain them against the claim of the consignor ; and yet, in this case, the factor might (o) Slice V. Prcscot, 1 Atk. 245 ; Fcaroii p. 696. V, Bowers, 1 H. Bl. 364, n. ; see 2M>st, {p) 2 Str. 1187 ; 1 Wils. 8. 694 LICKBARROW V. MASOK. (Lord Loughborough.) have sold them and embezzled the money. It has been argued, that it is necessary in commerce to raise money on goods at sea, and this can only be done by assigning the bills of lading. Is it then nothing, that an assignee of a bill of lading gains by the indorsement ? He has all the right the indorser could give him : a title to the possession of the goods when they arrive. He has a safe security, if he has dealt with an honest man. And it seems as if it could be of little utility to trade, to extend credit by affording facility to raise money by unfair dealing. Money will be raised on goods at sea, though bills of lading should not be negotiable, in every case where there is a fair ground of credit : but a man of doubtful character will not find it so easy to raise money at the risk of others. The conclusions which follow from this reasoning, if it be just, are — 1st. That an order to direct a delivery of goods indorsed on a bill of lading is not equivalent, nor even analogous, to the assignment of an order to pay money by the indorsement of a bill of exchange. 2ndly. That the negotiability of bills, and promissory notes, is founded on the custom of merchants, and positive law ; but, as there is no positive law, neither can any custom of merchants apply to such an instrument as a bill of lading. 3rdly. That it is, therefore, not negotiable as a bill, but assignable ; and passes such right, and no better, as the person assigning had in it. This last proposition I confirm by the consideration, that actual delivery of the goods does not of itself transfer an abso- lute ownership in them, without a title of property ; and that the indorsement of a bill of lading, as it cannot in any case transfer more right than the actual delivery, cannot in every case pass the property ; and I therefore infer, that the mere indorsement can in no case convey an absolute property. It may, however, be said that, admitting an indorsement of a bill of lading does not in all cases import a transfer of the property of the goods consigned, yet, where the goods, when delivered, would Ijelong to the indorsee of the bill, and the indorsement accompanies a title of property, it ought in law to bind the con- signor, at least with respect to the interest of third parties. Tliis argiuuent has, I confess, a very specious appearance. The LICK13AilKuVV V. MA,SUN. 695 whole difficulty of the case rests upon it ; and I am not surprised at the impression it has made, having long felt the force of it myself. A fair trader, it is said, is deceived by the misplaced confidence of the consignor. The purchaser sees a title to the delivery of the goods placed in the hands of the man who offers them to sale. Goods not arrived are every day sold without any suspicion of distress, on speculations of the fairest nature. The 23urchaser places no credit in the consignee, but in the indorse- ment produced to him, which is the act of the consignor. The first consideration which affects this argument is, that it proves too much, and is inconsistent with the admission. But let us examine what the legal right of the vendor is, and whether, with respect to him, the assignee of a bill of lading stands on a better ground than the consignee from whom he received it. I state it to be a clear proposition, that the vendor of goods not paid for may retain the possession against the vendee ; not by aid of any equity, l3ut on grounds of law. Our oldest books (7) consider the payment of the price (day not being given (/•) ) as a condition precedent implied in the contract of sale ; and that the vendee cannot take the goods, nor sue for them, without tender of the price. If day had been given for payment, and the vendee could support an action of trover against the vendor, the price unpaid must be deducted from the damages, in the same manner as if he had brought an action on the contract, for the non-delivery ; Snee v. Prescot, 1 Atk. 245. The sale is not executed before delivery : and, in the simplicity of former times, a delivery into the actual j^ossession of the vendee or his servant was always supposed. In the variety and extent of dealing which the increase of commerce has introduced, the delivery may be pre- sumed from circumstances, so as to vest a property in the vendee. A destination of the goods by the vendor to the use of the vendee ; the marking them, or making them up to be delivered ; the removing them for the purpose of being delivered, may all entitle the vendee to act as owner, to assign, and to maintain an action against a third person, into wdiose hands they have come. But the title of the vendor is never entirely divested, till the goods have come into the possession of the (q) See Hob. 41, and the Year Book (r) See Martindalc v. Smith 1 Q. B there cited. 389. 696 tICKB ARROW V. MASON. (Lord Loughborough.) vendee. He has therefore a complete right, for just cause, to retract the intended delivery, and to stop the goods in transitu. The cases determined in our courts of law have confirmed this doctrine, and the same law obtains in other countries. In an action tried before me at Guildhall, after the last Trinity- Term, it appeared in evidence, that one Bowering had bought a cask of indigo of Verrulez and Co. at Amsterdam, which was sent from the warehouse of the seller, and shipped on board a vessel commanded by one Tulloh, by the appointment of Bowering. The bills of lading were made out, and signed by Tulloh, to deliver to Bowering or order, who immediately indorsed one of them to his correspondent in London, and sent it by the post. Verrulez, having information of Bowering's insolvency before the ship sailed from the Texel, summoned Tulloh the ship-master before the court at Amsterdam, who ordered him to sign other bills of lading, to the order of Verrulez. Upon the arrival of the ship in London, the ship-master delivered the goods, according to the last bills, to the order of Verrulez. This case, as to the practice of merchants, deserves particular attention, for the judges of the court at Amsterdam are merchants, of the most extensive dealings, and they are assisted by very eminent lawyers. The cases in our law, which I have taken some pains to collect and examine, are very clear upon this point. Snee v. Prescot, though in a court of equity, is professedly determined on legal grounds by Lord Hardwicke, who was well versed in the principles of law ; and it is an authority, not only in support of the right of the owner unpaid to retain against the consignee, but against those claiming under the consignee by assignment for valuable consideration, and without notice. But (s) Fear on v. (s) Fearon v. Bowers, Guildhall, of the goods, to be delivered to the order March 28, 1753, coram Lee, C.J., 1 of the shipper. In the bills was the usual H. VA. 364, n. clause — that one being performed, the Detinue against the master or captain other two should be void. The goods of a ship. On the general issue ])leadcd, being thus shipped, Askcdl sent an in- the case appeared to he, that one Hall, voice thereof, and also one of the bills of of Salisbury, had written to Askell and lading, to Hall, indorsed l)y Askell, to Co., merchants at Malaga, to send him deliver the contents to Hall ; and Askell 20 butts of olive oil, which Askell ac- at the same time sent to Jones, his part- cordiiigly bought, and shipped on board ma- in England, a bill of exchange drawn the sliiji Tavistock, of which the defeii- on Hall for the amount of the price of dant was comuiander, who signed three the oil ; and also another of the bills of bills of lading ackn(nvlcdgii'g the I'cceipt lading indorsed by Askell to deliver the LICK BARROW V. MASON. 697 Bowers, tried before Lee, L.C.J., is a case at law, and it is to the same effect as Snce v. Present. So also is JJurgJiall v. contents to Jones. The bill of exchange was presented to Hall, bnt not being jiaid by him it was returned protested ; whereupon Jones, on 1st Sept. 1752 (a day or two after the ship aiTived), applied to the defendant to deliver the oils to him, and having produced his bill of lading, the defendant promised to deliver them accordingly. But the ship not being reported to the custom-house, the oils could not be then delivered ; and before they were delivered, the plaintiff, on 3rd Sept., produced the bill of lading sent to Hall, with an indorsement thereon by Hall to deliver the contents to the plaintiff, and also the invoice, upon the credit of which he had advanced to Hall 2001. — Notwithstanding this, the defen- dant afterwards delivered the oils to Jones, ar^d took his receipt for them on the back of the bill of lading. For the plaintiff it was contended, that the bill of lading indorsed to Hall, and by him to the plaintiff, had fixed the jiropeity of the goods in the plaintiff. That the consignee of a bill of lading has such a property that he may assign it over ; Evans v. Martlctt, 1 Ld. Raym. 271. There it is laid down, if goods are by bill of lading consigned to A., A. is the owner, and must bring the action against the master of the ship if they are lost : but if the bill be special to deliver to A. for the use of B., B. ought to bring the action ; but if the bill be general, and the invoice only shows they are upon the account of B., A. ought to bring the action, for the property is in him, and B. has only a trust ; ^;er totain ctiriani. Holt, C.J., said the consignee of a bill «f lading has such a property that he may assign it over ; and Shower said, it had been adjudged so in the Exchequer. It has been further insisted, that the plaintiff had advanced the 2001. on the ci'edit of the bill of lading, in the course of trade, and no objection was made that the oils had not been paid for ; for that would prove too much, namely, that the bill of lading was not negotiable. And the indorsement was conqiared to the indorsement of a bill of exchange, which is good, though the bill originally was obtained by fraud. Merchants were examined on both sides, and seemed to agree that the indorsement of a bill of lading vests the proper ty ; but tliat the original consignor, if not paid for the goods, had a right, by any means that he could, to stop their coming to the hands of the consignee till paid for. One of the witnesses said, he had a like case before the Chancellor, who upon that occasion said, he thought the con- signor had a right to get the goods in such a case back into his hands in any way, so as he did not steal them. It also appeared by the evidence of mer- chants and captains of ships, that the usage was, where three bills of lading were signed by the captain, and indorsed to different persons, the captain had a right to deliver the goods to whichever he thought proper ; that he was dis- charged by a delivery to either with a receipt on the bill of lading, and was not obliged to look into the invoice or con- sider the merits of the different claims. Lee, C.J., summing up the evidence, said that, to be sure, nakedly considered, a bill of lading transfers the property, and a right to assign that property by in- dorsement : that the invoice strengthens that right by showing a farther intention to transfer the property. But it apjieared in this case, that Junes hail the other bill of lading to be as a curb on Hall, who in fact had never paid for the goods. And it appeared by the evidence, that, accord- ing to the usage of trade, the captain was not concerned to examine who had the best right on the iliil'erent bills of lading. All he had to do was to deliver the goods upon one of the bills of lading, which was done. The jury therefore were directed by the Chief Justice to find a verdict for the defendant, which they accordingly did. Accord, as to discharge of the master by deliver}'' under either bill, The Tigress, Brown k Lush. 38. But that Fcaron v. Boivcrs cannot be supported to its full extent in protecting a master who delivers to one indorsee irith notice that another part of the bill of lading is out- standing with another indorsee ; see Glyn V. E. tt- TV. India Dock Co. , 7 App. Cas. 591. 698 LICKBARROW V. MASON. (Lord Loughborough.) Howard {t), before Lord Mansfield. The right of the consignor to stop the goods is here considered as a legal right. It will make no difference in the case whether the right is considered as springing from the original property not yet transferred by delivery, or as a right to retain the things as a pledge for the price unpaid. In all the cases cited in the course of the argu- ment, the right of the consignor to stop the goods is admitted as against the consignee. But it is contended that the right ceases as against a person claiming under the consignee for valuable consideration, and without notice that the price is unpaid. To support this position, it is necessary to maintain that the right of the consignor is not a perfect legal right in the thing itself, but that it is only founded upon a personal exception to the con- signee, which would preclude his demand as contrary to good faith, and unconscionable. If the consignor had no legal title, the question between him and the bond fide purchaser from the consignee would turn on very nice considerations of equity. But a legal lien, as well as a right of property, precludes these con- siderations ; and the admitted right of the consignor to stop the goods in transitu as against the consignee can only rest upon his original title as owner, not divested, or upon a legal title to hold the possession of the goods till the price is paid, as a pledge for the price. It has been asserted in the course of the argument, that the right of the consignor has by judicial de- terminations been treated as a mere equitable claim in cases between him and the consignee. To examine the force of (t) Assignees of BiirrjhaU, a banknijit, ticular ship was mentioned whereby the V. Howard. At Guildhall sittings after cheese should be sent, in which case the Hil. 32 G. 2, cm-am Lord Mansfield. shipper was to be at the risk of the peril One Burghall at London gave an order of the seas. The action was on the case to Bromley at Liverpool to send him a upon the custom of the realm against quantity of cheese. Bromley accordingly the defendant as carrier. Lord Manslield shipped a ton of cheese on board a ship was of opinion that the plaintiff's had no there, whereof Howard, the defendant, foundation to recover ; and said he had was ma.ster, who signed a bill of lading known it several times ruled iu Chancery, to deliver it iu good condition to Burg- that where the consignee becomes bank- hall in London. The ship arrived in the rupt, and no part of the price had been Tiiames, but Burghall having become paid, that it was lawful for the consignor liankrujit, the defendant was ordered, on to seize the goods before they come to the behalf of Bromley, not to deliver the hands of the consignee or his as.signees ; goods, and accordingly refused, though and that this was ruled, not upon prin- the freight was tendered. It appeared ciples of equity only, but the laws of l>y the plaintiff's witnesses that no par- property. The plaintill's were nonsuited. LICKBARllOW V. MASON. 699 this assertion, it is necessary to take a review of tlie several determinations. The first is Wright v. Campbell, 4 Burr. 2046, on which the chief stress is laid. The first observation that occurs upon that case is, that nothing was determined by it. A case was reserved by the judge at nisi jmns, on the argument of which the court thought the facts imperfectly stated, and directed a new trial. That case cannot therefore be urged as a decision upon the point. But it is quoted as containing in the report of it an opinion of Lord Mansfield, that the right of the consignor to stop the goods cannot be set up against a third person claiming under an indorsement for value and without notice. The autho- rity of such an opinion, though no decision had followed upon it, would deservedly be very great, from the high respect due to the experience and wisdom of so great a judge. But I am not able to discover that his opinion was delivered to that extent, and I assent lo the opinion as it was delivered, and very correctly applied to the case then in question. Lord Mansfield is there speaking of the consignment of goods to a factor to sell for the owner ; and he very truly observes, 1st, that, as against the factor, the owner may retain the goods ; 2ndly, that a person into whose hands the factor has passed the consignment with notice is exactly in the same situation with the factor himself ; 3rdly, that a bond fide purchaser from the factor shall have a right to the delivery of the goods, because they were sold bond fide, and by the owner's own authority. If the owner of the goods entrust another to sell them for him, and to receive the price, there is no doubt but that he has bound himself to deliver the goods to the purchaser ; and that would hold equally, if the goods had never been removed from his warehouse. The ques- tion on the right of the consignor to stop and retain the goods, can never occur where the factor has acted strictly according to the order of his principal, and where, consequently, he has bound him by his contract. There would be no possible ground for argument in the case now before the court, if the plaintiffs in the action could maintain that Turings had sold to them by the intervention of Freeman, and were therefore bound ex contractu to deliver the goods. Lord Mansfield's opinion upon the direct question of the right of the consignor to stop the goods against 700 LICKBARROW V. MASON. (Lord Loughborough.) a third party, who has obtained an indorsement of the Lill of lading, is quoted in favour of the consignor, as delivered in two cases at nisi liviiis ; {u) Savignac v. C^iff in 1778, and (r) Stokes V. La Riviere in 1785. Observations are made on these cases, that they were governed by particular circumstances ; and un- doubtedly when there is not an accurate and agreed state of them, no great stress can be laid on the authority. Caldwell v. Ball {x) is improperly quoted on the part of the plaintiffs in the action, because the question there was on the priority of con- signments, and the right of the consignor did not come under consideration. Hihhert v. Carter (y) was also cited on the same side, not having decided any question upon the consignor's right to stop the goods, but as establishing a position that, by the in- dorsement of the bill of lading, the property was so completely transferred to the indorsee, that the shipper of the goods had no longer an insurable interest in them. The bill of lading in that case had been indorsed to a creditor of the shipper ; and, un- doubtedly, if the fact had been as it was at first supposed, that the cargo had been accepted in payment of the debt, the conclu- sion would have been just : for the property of the goods, and the risk, would have completely passed from the shipper to the indorsee ; it would have amounted to a sale executed for a con- sideration paid. But it is not to be inferred from that case, that an indorsement of a bill of lading, the goods remaining at the risk of the shipper, transfers the property so that a policy of insurance upon them in his name would be void. The greater part of the consignments from the West Indies, and all countries where the balance of trade is in favour of England, are made to a creditor of the shipper ; but they are no discharge of the debt, by indorsement of the bill of lading ; the expense of insurance, freight, duties, are all charged to the shipper, and the net pro- ceeds alone can be applied to the discharge of his debt. The case, therefore, has no application to the present question. And from all the cases that have been collected, it does not appear that there has ever Ijeen a decision against the legal right of the consignor to stop the goods in transitu, before the case now (u) Ante, p. 677. {x) 1 T. R. 205. (v) Ante, p. 687. y) 1 T. R. 745. LICKBARROW V. MASON. 701 brought before this court. When a pomt in law which is of general concern in the daily Inisiness of the world is directly decided, the event of it fixes the public attention, directs the opinion, and regulates the practice of those who are interested. But where no such decision has in fact occurred, it is impossible to fix any standard of opinion upon loose reports of incidental arguments. The rule, therefore, which the court is to lay down in this case, will have the effect, not to disturb, but to settle, the notions of the commercial part of this country, on a point of very great importance, as it regards the security and good faith of their transactions. For these reasons we think the judgment of the Court of Kino-'s Bench ought to be reversed. The follo-^'ing account of the furthei- proceedings in this case is given by ^Ii". East, in a note to his Eeports, 6 East, 20. This 'case first came on upon a demurrer %o evidence, on which there was judgment for the plaintift'; this court holding that, though the vendor of goods might, as between himself and the vendee, stop them in transitu to the latter, in case of his in- solvency, not having paid for them ; yet that, if the vendee, having in his possession the bill of lading indorsed in blank by the vendor, before such stopping in trnnsitu, indorse and deliver it to a third person for a valuable consideration and without notice of the non-pa^^ment, the right of the vendor to stop in transitu is thereby divested as against such hand fide holder of the bill. This judgment was reversed upon a writ of error in the Exch. Cham., where it was considered that a bill of lading was not a negotiable instrument, the indorsement of which passed the property propria vigorc, like the indorsement of a bill of exchange ; though to some purposes it was assignable by indorsement, so as to operate as a discharge to the captain who made a delivery hand fide to the assignee ; 1 H. Bl. 357. The latter judgment was in its turn reversed in the House of Lords in T. 33 Geo. 3, and a venire facias de novo directed to be awarded by B. K. ; 5 T. E. 367, and 2 H. Bl. 211. The ground of that reversal was, that the demurrer to evidence appeared to be informal on the record MS. The very elaborate opinion delivered by Buller, J., upon the principal question before the 702 LICKBARROW V. MASON. House, a copy of "which he afterwards permitted me to take, I shall here subjoin, as it contains the most comprehensive view of the whole of this subject which is anywhere to be found. A venire facias de novo having been accordingly awarded by B. R., a special verdict was found upon the second trial, containing in substance the same facts as before ; with this addition, that the jury found that(0), by the custom of merchants, hills of lading for the delivery of goods to the order of the shipj^er or Jiis assigns, are, after the shijjment, and' before the voyage performed, 7iegotiahle and transferable by the shipper^s indorsement and delivery, or trans- mitting of the same to any other person ', and that by such indorse- ment and delivery or trcmsmissioji the projierty in such goods is transferred to such other person. And that by the custom of merchants, indorsements of bills of lading in blank may be filled up by the person to ichoni they are so delivered or transmitted, ivith icords ordering the delivery of the goods to be made to such person : and according to the practice of merchants, the same, when filled up^ have the same operation and effect as if it had been done by the shipper. On this special verdict, the court of B, R., under- standing that the case was to be carried up to the House of Lords, declined entering into a discussion of it ; merely saying, that they still retained the opinion delivered upon tlie former case, and gave judgment for the plaintiffs ; 5 T. R. 6S3. LICKP.ARROAV AND ANOTHER v. MASON AND OTHERS, IN ERROR.— DOM. PROG. 1793. BuLLER, J. — Before {a) I consider what is the law arising on this case, I shall endeavour to ascertain what the case itself is. It appears that the two bills of lading were indorsed in blank by Turing, and sent so indorsed in the same state by Freeman to the plaintiffs, in order that the goods might, on their arrival at Liverpool, be taken possession of, and sold by the plaintiffs, on Freeman's account. I shall first consider what is the effect of a l)]iuik indorsement ; and secondly, I will examine whether the (s) See, as to the effect of this finding, J., Burdick v. Snirll, 10 (.,>. B. D. p. 'Ml, Scwell V. Jiurdkk, 10 App. Cub. 74. andpv \jun\ Bhickbmn, Sewcll v. lUir- (a) As to this opinion, .see 2^<:>' Field, dicic, 10 Api). Ca.s. p. 98. LICKBAIIUOW V. MASON. 703 words, "to be so sold by the plaintiffs on Freeman's account,' make any difference in the case. As to the first, I am of opinion that a blank indorsement has precisely the same effect that an indorsement to deliver to the plaintiffs would have. In the case of bills of exchange, the effect of a blank indorsement is too universally known to be doubted ; and, therefore, on that head I shall only mention Eiissel v. Lauf/sfajje, 2 Dougl. 514, where a man indorsed his name on copper-plate checks, made in the form of promissory notes, but in blank, i.e., without any sum, date, or time of payment ; and the court held that the indorse- ment on a blank note is a letter of credit for an indefinite sum ; and the defendant was liable for the sum afterwards inserted in the note, whatever it might be. In the case of bills of lading, it has been admitted at your lordship's bar, and was so in the Court of King's Bench, that a blank indorsement has the same effect as an indorsement filled up to deliver to a particular person by name. 'In Snee v. Prefect, Lord Hardwicke thought that there was a distinction between a bill of lading indorsed in blank, and one that was filled up ; and upon that ground part of his decree was founded. But that I conceive to be a clear mistake. And it appears from Savignac v. Cuf (of which case I know nothincr but from what has been quoted by the counsel, and, that case having occurred before the unfortunate year 1780 (//), no further account can be obtained), though Lord Mansfield at first thourrht that there was a distinction between bills of lading indorsed in blank and otherwise, yet he afterwards abandoned that ground. In Solomons v. Nissen, Mich. 1788, 2 T. K. 674, the bill of lading was to order or assigns, and the indorsement in blank ; but the court held it to be clear that the property j^assed. He who delivers a bill of lading indorsed in blank to another, not onlv puts it in the power of the person to whom it is delivered, but gives him authority, to fill it up as he pleases ; and it has the same effect as if it were filled up with an order to deliver to him. The next point to be considered is, what difference do the words " to be sold by the plaintiffs on Freeman's account " make in the present case ? It has been argued that they prove the plaintiffs to be factors only. But it is to be observed that these words are (J) Lord Mansfield's papers were then riots of that period. burnt, together with his house, iu the 704< LICKBARROW V. MASON. (BULLEK, J.) not found in the bill of lading itself : and, therefore, they cannot alter the nature and construction of it, I say they were not in the bill of lading itself ; for it is expressl}' stated that the bill of lading was sent by Freeman in the same state in which it was received, and in that there is no restriction or qualification what- ever ; but it appeared by some other evidence — I suppose by some letter of advice, that the goods were so sent, to be sold by the plaintiffs on Freeman's account. Supposing that the plain- tiffs are to be considered as factors, yet if the bill of lading, as I shall contend presently, passes the legal property in the goods, the circumstance of the plaintiffs being liable to render an account to Freeman for these goods afterwards will not put Tuying in a better condition in this case ; for a factor has not only a right to keep goods till he is paid all that he has ad- vanced or expended on account of the particular goods, but also till he is paid the balance of his general account (c). The truth of the case, as I consider it, is that Freeman transferred the legal property of the goods to the plaintiffs, who were to sell them, and pay them themselves the 520Z. advanced in bills out of the produce, and to be accountable to Freeman for the remainder, if there were any. But if the goods had not sold for so much as 510/., Freeman would still have remained debtor to the plaintiffs for the difference ; and so far only they were sold on Freeman's account. But I hold that a factor who has the legal property in goods can never have that property taken from him, till he is paid the uttermost farthing which is due to him; Kruger v. Wilcox, Ambl. 252. This brings me to the two great questions in the cause, which are undoubtedly of as much importance to trade as any questions which ever can arise. The first is, whether at law the property of goods at sea passes by the indorsement of a bill of lading ? The second, whether the defendant, who stands in the place of the original owner, had a right to stop the goods hi transitu? And, as to the first, every authority which can be adduced from the earliest period of time down to the present hour agrees that at law the property does pass as absolutely and as effectually as (c) Ace. I/oicy/dou v. Matthews, 3 B. & Jliuison v. Granger, ^ B, & Aid. 27 ; P. 485 ; Matvn v. Shifner, 2 East, 529 ; Drinkwater v. Goodwin, 1 Cowp. 251. LICKBAllROW V. MASON. 705 if the goods had been actually delivered mto the hands of the consignee (d). In 1690, it was so decided in Wiseman v. Vande- putt, 2 Vern. 203. In 1697, the court determined again in Evans V. Martlett that the property passes by the bill of lading. That case is reported in 1 L. Eaym. 271, and 12 Mod. 156 ; and both books agree in the points decided. Lord Eaymond states it to be, that, if goods by a bill of lading are consigned to A., A. is the owner, and must bring the action : but, if the bill be special to be delivered to A., to the use of B., B. ought to bring the action : but if the bill be general to A., and the invoice only shows that they are on account of B. (which I take to be the present case), A. ought always to bring the action ; for the property is in him, and B. has only a trust. And Holt, C.J., says the consignee of a bill of lading has such a property as that he may assign it over ; and Shower said it had been so adjudged in the Exchequer. In 12 Mod. it is said that the court held that the invoice signified nothing*; but that the consignment in a bill of lading gives the property, except where it is for the account of another ; that is, where on the face of the bill it imports to be for another. In Wright v. Campbell, in 1767 (4 Burr. 2046), Lord Mansfield said, " If the goods are bond fide sold by the factor at sea (as they may be where no other delivery can be given), it will be good notwithstanding the stat. 21 Jac. 1. The vendee shall hold them by virtue of the bill of sale, though no actual possession be delivered ; and the owner can never dispute with the vendee, because the goods were sold bond fide, and by the owner's own authority." His lordship added (though that is not stated in the printed report) that the doctrine in L. Piaym. was right, that the property of goods at sea was transferable. In Fearon v. Boivers (e), in 1753, Lee, C.J., held that a bill of lading trans- ferred the property, and a right to assign that property by in- dorsement ; but that the captain was discharged by a delivery under either bill. In Snec v. Prescot, in 1743, 1 Atk. 245, Lord Hardwicke says, " Where a factor, by the order of his principal, buys goods with his own money, and makes the bill of lading absolutely in the principal's name, to have the goods delivered {d) As to tins, see Seivell v. Bunlick, Tigress, Brown & Lush. 38. See, liow- 10 App. Cas. 74. ever, Glyn v. E, d' IF. J. Dock Co., (c) See ante, p. 696, n. Accord, The 7 App. Cas. 591. S.L.C. — VOL. I. 45 706 LICKB ARROW V. MASON. (BULLER, J.) to the principal, in such case the factor cannot countermand the bill of lading ; but it passes the property of the goods fully and irrevocably to the principal." Then he distinguishes the case of blank indorsement, in which he was clearly wrong. He admits, too, that if, upon a bill of lading between merchants residing in different countries, the goods be shipped and consigned to the principal expressly in the body of the bill of lading, that vests the property in the consignee. In Caldwell v. Ball, in 178G, 1 T. E. 205, the court held that the indorsement of the bill of lading was an immediate transfer of the legal interest in the cargo. In Hihhert v. Carter, in 1787, 1 T. E. 745, the court held again that the indorsement and delivery of the bill of lading to a creditor prwid facie conveyed the whole property in the goods from the time of its delivery. Godfrey v. Furzo, 3 P. Wms. 185, was quoted on behalf of the defendant. A merchant at Bilboa sent goods from thence to B., a merchant in London, for the use of B., and drew bills on B. for the money. The goods arrived in London, which B. received, but did not pay the money, and died insolvent. The merchant beyond sea brought his bill against the executors of the merchant in London, praying that the goods might be accounted for to him, and insisted that he had a lien on them till paid. Lord Chancellor King says, — " "When a merchant beyond sea consigns goods to a merchant in London on account of the latter, and draws bills on him for such goods, though the money be not paid, yet the property of the goods vests in the merchant in London, who is credited for them, and consequently they are liable to his debts. But where a merchant beyond sea consigns goods to a factor in London, who receives them, the factor in this case, being only a servant or agent for the merchant beyond sea, can have no property in such goods, neither will they be affected by his bankruptcy." The whole of this case is clear law ; but it makes for the plain- tiffs and not the defendants. The first point is this very case ; for the l)ill of lading here is generally to the plaintiffs, and there- fore on their account ; and in such case, though the money be not paid, the property vests in the consignee. And this is so laid down without regard to the question, whether the goods were received by the consignee or not. The next point there LICKBARROW V. MASON. 707 stated is, what is the law in the case of a pure factor, without any demand of his own ? Lord King says he would have no property. This expression is used as between consignor and consignee, and obviously means no more than that, in the case put, the consignor may reclaim the property from the consignee. The reason given by Lord King is, because in this case the factor is only a servant or agent for the merchant bej^ond sea. I agree, if he be merely a servant or agent, that part of the case is also good law, and the principal may retain the property. But then it remains to be proved that a man who is in advance, or under acceptances on account of the goods, is simply and merely a ser- vant or agent ; for which no authority has been, or, as I believe, can be produced. Here the bills were drawn by Freeman upon the plaintiffs upon the same da}', and at the same time, as he sent the goods to them ; and therefore this must, by fair and necessary intendment, be taken to be one entire transaction ; and that the bills were drawn on account of the goods, unless the contrary appear. So far from the contrary appearing here, when it was thought proper to allege on this demurrer that the price of the goods was not paid, it is express^ so stated ; for the demurrer sij^s, that the price of the goods is now due to Turing and Son. But it finds that the other bills were afterwards paid by the plaintiffs ; and consequently they have paid for the goods in question. As between the principal and mere factor, who has neither advanced nor engaged in anything for his principal, the l^rincipal has a right at all times to take back his goods at will : whether they be actually in the factor's possession, or only on their passage, makes no difference ; the principal may counter- mand his order : and though the property remain in the factor till such countermand, yet from that moment the property re- vests in the principal, and he may maintain trover. But in the present case the plaintiffs are not that mere agent or servant ; they have advanced 510/., on the credit of these goods, which at a rising market were worth only 557/. ; and they have besides, as I conceive, the legal property in the goods under the bill of lading. . But it was contended at the bar that the property never passed out of Turing ; and to prove it, Hob. 41 was cited. In answer to this I must beg leave to say that the position in Hobart does not appl}' ; because there no day of payment was 45 2 708 LICKBARROW V. MASOX. (BULLER, J.) given ; it was a bargain for read}^ money ; but here a month was given for payment. And in Noy's Maxims, 87, this is laid down : "If a man do agree for a price of wares, he may not carry them away before he hath paid for them, if he have not a day expressly given to him to pay for them." Thoiye v. Thorpe, Eep. temp. Holt, 96, and Brice v. James, Eep. temp. Lord Mans- field, S. P. So Dy. 30 and 76. And in Shep. Touch. 222, it is laid down, that " If one sell me a horse, or anything for money, or any other valuable consideration, and the same thing is to be delivered to me at a day certain, and by our agreement a day is set for the payment of the money, it is a good bargain and sale to alter the property thereof ; and I may have an action for the thing, and the seller for his money." Thus stand the authorities on the point of legal property ; and from hence it appears that for upwards of 100 years past it has been the universal doctrine of Westminster Hall, that by a bill of lading, and by the assign- ment of it, the legal property does pass. And, as I conceive, there is no Judgment, nor even a dictum, if properly understood, which impeaches this long string of cases. On the contrary, if anj^ argument can be drawn by analogy from older cases on the vesting of property, they all tend to the same conclusion. If these cases be law, and if the legal property be vested in the plaintiffs, that, as it seems to me, puts a total end to the present case ; for then it will be incumbent on the defendants to show that they have superior equity which bears down the letter of the law, and which entitles them to retain the goods against the legal right of the plaintiffs, or they have no case at all. I find myself justified in saying that the legal title, if in the plam- tiffs, must decide this cause by the very words of the judgment now appealed against ; for the noble lord who pronounced that judgment emphatically observed in it, " that the plaintiff's claim under Freeman ; but, though they derive a title under him, they do not represent him, so as to be answerable for his engagements : nor are they affected by any notice of those circumstances which would bar the claims of him or his assignees." This doctrine, to which I fully subscribe, seems to me to be a clear answer to any supposed lien which Turing may have on the goods in question for the original price of them. LICKBARROW V. MASOX. 700 But the second question made in the case is, that, however the legal property be decided, the defendants, who stand in the place of the original owner, had a right to stop the goods in transitu, and have a lien for the orij;inal price of them. Before I consider the authorities applicable to this part of the case, I will beg leave to make a few observations on the right of stopping goods in transitu, and on the nature and principle of liens. 1st, Neither of them are founded on propert}^ ; but they necessarily suppose the property to be in some other person, and not in him who sets up either of these rights (/). They are qualified rights, which in given cases may be exercised over the property of another : and it is a contradiction in terms to say a man has a lien upon his own goods, or right to stop his own goods in transitu. If the goods be his, he has a right to the possession of them whether they be in transitu, or not : he has a right to sell or dispose of them as he pleases, without the option of any other person : but he who has a lien only on goods has no right so to do ; he can only retain them till the original price be paid : and therefore, if goods are sold for 500Z., and by a change of the market, before they are delivered, they become next day worth 1,000^, the vendor can only retain them till the 500/. be paid, unless the bargain be absolutely rescinded by the vendee's refusing to pay the 500/. — 2ndly, Liens at law exist only in cases where the party entitled to them has the possession of the goods ; and if he once part with the possession after the lien attaches, the lien is gone (g). — 3rdly, TJic right of stojyping in transitu is founded only on equit- able p7'inci2}les, which have been adopted in courts of law ; and, as far as they have been adopted, I agree they will bind at law as well as in equity. So late as 1690, this right, or privilege, or wiiatever it vno^y be called, was unknown to the law. The first of these propositions is self evident, and requires no argu- ment to prove it. As to the second, which respects liens, it is known and unquestionable law, that if a carrier, a farrier, a tailor, or an innkeeper, deliver up the goods, his lien is gone. . So also is the case of a factor as to the particular (/) See the distinction drawn by p. 720. Ba3'le3', J., between the right of posses- (r/) See Levy v. Barnard. S Taunt, sion and that of property, post, in notis, 149. See post, in notd, p. 720. 710 LICKBAREOW V. MASON. (BULLER, J.) goods : but, by the general usage in trade, he may retain for the balance of his account all goods in his hands, without regard to the time when or on what account he received them. In Snee v. Prescot, Lord Hardwicke says that which not only applies to the case of liens, but to the right of stopping goods in transitu under circumstances similar to the case in judgment : for he says, where goods have been negotiated, and sold again, there it would be mischievous to say that the vendor or factor should have a lien upon the goods for the price ; for then no dealer would know when he purchased goods safely. So, in Lempriere v. Pasley, 2 T. E. 485, the court said it would be a great inconvenience to commerce if it were to be laid down as law that a man could "never take up money upon the credit of goods consigned till they actually arrived in port. There are other cases which in my judgment api)ly as strongly against the right of seizing in transitu to the extent contended for by the defendants : but before I go into them, with your lordships' per- mission, I will state shortly the facts of Snee v. Prescot, 1 Atk. 245, with a few more observations upon it. The doctrine of stopping in transitu owes its origin to courts of equity; and it is very material to observe that in that case, as well as many others which have followed it at law, the question is not, as the counsel for the defendants would make it, whether the property vested under the bill of lading, for that was considered as being clear : l)ut whether, on the insolvency of the consignee, who had not paid for the goods, the consignor could countermand the con- signment or, in other words, divest the property which was vested in the consignee. Toilet, a merchant in London, shipped to Ragueneau and Co., his factors at Leghorn, serges, to sell, and to buy douljle the value in silks ; for which the factors were to pay half in ready money of their own, which Toilet would repay by l)ills drawn on him. The silks were bought accordingly, and shipped on board Dawson's ship, marked T. ; Dawson signed three bills of lading, to deliver at London to factors, consignors, or their order. The factors indorsed one bill of lading in blank, and sent it to Toilet, who lilled up the same and pawned it. The bills drawn by the factors on Toilet were not paid, and Toilet became a bankrupt. The factors sent another bill of LICKBARROW V. MASON. 711 lading, properly indorsed, to Prescot, who offered to pay the pawnee, but he refused to deliver up the bill of lading ; on which Prescot got possession of the goods from Dawson, under the last bill OL lading. The assignees of Toilet brought the bill to redeem by paying the pawnee out of the money arising by sale, and to have the rest of the produce paid to them : and that the factors, although in possession of the goods, should be considered as general creditors only, and be driven to come in under the com- mission. Decreed, 1st, That the factors should be paid ; 2nd, the pawnees; and 3rd, the surplus to the assignees. The decree was just and right in saying that the consignor, who never had been paid for the goods, and the pawnees, who had advanced money upon the goods, should both be paid out of the goods before the consignee or his assignees should derive any benefit from them. That was the whole of the decree ; and if the circumstance of the consignor's interest being first provided for be thought to have any weight, I answer, 1st, That such pro- vision was founded on what is now admitted to be an apparent mistake of the law, in supposing that there was a difference between a full and a blank indorsement. Lord Hardwicke con- sidered the legal property in that case to remain in the con- signor, and, therefore, gave him the preference. 2ndly, That whatever might be the law, the mere fact of the consignor's being in possession was a sufficient reason for a court of equity to say. We will not take the possession from you till you have been paid what is due to you for the goods. Lord Hardwicke expressly said — "This court will not say, as the factors have re-seized the goods, that they shall be taken out of their hands till payment of the half-price which they have laid down upon them. He ivho seeks equitji must do equity ; and, if he will not, he must not expect relief from a court of equity. It is in vain for a man to say in that court, I have the law with me, unless he will show that he has equity with him also. If he mean to rely on the law of his case, he must go to a court of law ; and so a court of equity will always tell him under those circum- stances." Snee v. Prescot is miserably reported in the printed book : and it was the misfortune of Lord Hardwicke, and of the public in general, to have many of his determinations published in an incorrect and slovenly way : and, perhaps, even he himself. 712 LICKB ARROW V. MASON. (BULLEE, J.) by being very diffuse, has laid a foundation for doubts which otherwise would never have existed. I have quoted that case from a MS. note taken, as I collect, by Mr. John Cox, who was counsel in the cause : and it seems to me that, on taking the whole of the ease together, it is apparent that, whatever might have been said on the law of the case, in a most elaborate opinion, Lord Hardwdcke decided on the equity alone, arising out of all the particular circumstances of it, without meaning to settle the principles of law on which the present case depends. In one part of his judgment he says that, in strictness of law, the property vested in Toilet at the time of the purchase : " but, however that may be," says he, " this court will not compel the factors to deliver the goods without being disbursed what they have laid out." He begins by saying, " the demand is as harsh as can possibly come into a court of equity." And in another part of his judgment he says, "Suppose the legal property in these goods was vested in the bankrupt, and that the assignees had recovered, yet this court would not suffer them to take out execution for the whole value, but would oblige them to account." But further, as to the right of seizing or stopping the goods in transitu, I hold that no man, wdio has not equity on his side, can have that right. I will say with confidence, that no case or authority, till the present judgment, can be produced to show that he has. But on the other hand, in a very able judg- ment delivered by my brother Ashhurst, in Lemjmere v. Paslcy, in 1788, 2 T. R. 485, he laid it down as a clear principle, that, as between a person who has an equitable lien and a third person who purchases a thing for valuable consideration and without notice, the prior equitable lien shall not over-reach the title of the vendee. This is founded on plain and obvious reason : for he wlio has bought a thing for a fair and valuable consideration, and without notice of any right or claim by any other person, instead of having equity against liim has equity in his favour ; and if he have law and equity both with him he cannot l)e beat by a man who has equal equity only. Again, in a very solemn opinion, delivered in this house by the learned and respectable judge (//), who has often had the honour of (/<) Eyre, then T.ord C. B, LICKEATIKOW V. MASON. 713 delivering the sentiments of the judges to your lordships, when you are pleased to require it, so lately as the 14th May, 1790, in Kinloch v. Craig, 3 T, K. 787, it was laid down that the right of stopping goods in transitu never occurred but as between vendor and vendee ; for that he relied on the case of WrigJit v. Camjjhell, 4 Burr. 2050. Nothing remains in order to make that case a direct and conclusive authority for the present, but to show that it is not the case of vendor and vendee. The terms vendor and vendee necessarily mean the two parties to a particular contract : those who deal together, and between whom there is privity in the disposition of the things about which we are talking. If A. sell a horse to B., and B. afterwards sell him to C, and C. to D., and so on through the alphabet, each man who buys the horse is at the time of bujdng him a vendee ; but it would be strange to speak of A. and D. together as vendor and vendee, for A. never sold to D., nor did D. ever buy of A. These terms are corre- latives, and never have been applied, nor ever can be applied, in any other sense than to the persons who bought and sold to each other. The defendants, or Turing, in whose behalf and under whose name and authority they have acted, never sold these goods to the plaintiffs ; the plaintiffs never were the vendees of either of them. Neither do the plaintiffs (if I may be permitted to repeat again the forcible words of the noble judge who pro- nounced the judgment in question) represent Freeman so as to be answerable for his engagements, or stand affected by any notice of those circumstances which would bar the claim of Freeman or his assignees. These reasons, which I could not have expressed with equal clearness, without recurring to the words of the two great authorities by whom they were used, and to whom I always bow with reverence, in my humble judgment put an end to all questions about the right of seizing in transitu. Two other cases were mentioned at the bar which deserve some attention. One is Biirgliallrv. Howard (?), before Lord Mansfield at Guildhall, in 1759 ; where the only point decided by Lord Mansfield was, that if a consignee become bankrupt, and no part of the price of the goods be paid, the consignor may seize the goods before they come to the hands of the consignee or his assignees. This was most clearly right ; but it does not apply to the present case ; (i) See a7ite, p. 698, n. 714 LICKB ARROW V. MASON. (BULLER, J.) for, when he made use of the word " assignees," he undoubtedly meant assignees under a commission of bankruptcy, like those who were then before him, and not persons to whom the con- signee sold the goods ; for in that case it is stated that no part of the price of the goods was paid. The whole caase turns upon this point. In that case no part of the price of the goods was paid, and therefore the original owner might seize the goods. But in this case the plaintiffs had paid the price of the goods, or were under acceptances for them, which is the same thing ; and therefore the original owner could not seize them again. But the note of that case says. Lord Mansfield added, " and this was ruled, not upon principles of equity only, but the laws of property." Do these words fairly import that the property was not altered by a bill of lading, or by the indorsement of it ? That the liberty of stopping goods in transitu is originally founded on principles of equity, and that it has, in the case before him, been adopted by the law, and that it does not affect property, are all true : and that is all that the words mean ; not that the property did not pass by the bill of lading. The commercial law of this country was never better understood, or more correctly administered, than by that great man. It was under his fostering hand that the trade and the commercial law of this country grew to its present amazing size : and, when we find him in other instances adopting the language and opinion of Lord Holt, and saying that, since the cases before him, it had always been held that the delivery of a bill of lading transferred the property at law, and in the year 1767 deciding that very point, it does seem to me to be absolutely impossible to make a doubt of what was his opinion and meaning. All his deter- minations on the subject are uniform. 'Even Sarigiiac v. Cuff'{k), of which we have no account besides the loose and inaccurate note produced at the bar, as I understand it, goes upon the same principle. The note states that counsel for the plaintiit" relied on the property passing by the bill of lading : to which Lord Mansfield answered, the plaintiff had lost his lien, he standing in the place of the consignee. Lord Mansfield did not answer mercantile questions so; which, as stated, was no (/;-■) Cited ante, p. 677. LICKBARROVV V. MASON. 715 answer to the question made. But I think enough appears on that case to show the grounds of the decision, to make it con- sistent with Wright v. Campbell, and to prove it a material authority for the plaintiffs in this case. I collect from it that the plaintiff had notice by the letter of advice that Lingham had not paid for the goods : and if so, then, according to Wriglit V. Campbell, he could only stand in Lingham's place. But the necessity of recurring to the question of notice strongly proves, that, if there had been no such notice, the plaintiff, who was the assignee of Lingham the consignee, would not have stood in Lingham's place, and the consignor could not have seized the goods ill transitu : but that, having seized them, the plaintiff would have been entitled to recover the full value of them from him. This way of considering it makes that case a direct authority in point for the plaintiffs. There is another circum- stance in that case material for consideration ; because it shows how far only the right of seizing in transitu extends, as between the consignor and consignee. The plaintiff in that action was considered as the consignee ; the defendant, the consignor, had not received the full value for his goods ; but the consignee had jDaid 150^ on account of them. Upon the insolvency of the consignee, the consignor seized the goods i)i transitu ; but that was holden not to be justifiable, and therefore there was a verdict against him. That was an action of tracer, which could not have been sustained but on the ground that the property was vested in the consignee, and could not be seized in transitu as against him. If the legal property had remained in the con- signor, what objection could be stated in a court of law to the consignor's taking his own goods ? But it was holden that he could not seize the goods ; which could only be on the ground contended for by Mr. Wallace, counsel for the plaintiff, that the property was in the consignee : but though the property were in the consignee, yet, as I stated to your lordships in the outset, if the consignor had paid to the consignee all that he had advanced on account of the goods, the consignor would have had a right to the possession of the goods, even though they had got into the hands of the consignee : and upon paying or tendering that mone}', and demanding the goods, the property would have revested in him, and he might have maintained trover for them : 716 LICKBARROW V. MASON. (BULLER, J.) but admitting that the consignee had the legal property, and was therefore entitled to a verdict, still the question remained what damages he should recover; and, in ascertaining them, regard was had to the true merits of the case, and the relative situation of each party. If the consignee had obtained the actual posses- sion of the goods, he would have had no other equitable claim on them than 1501. He was entitled to no more, the defendant was liable to pay no more ; and therefore the verdict was given for that sum. This case proceeded precisely upon the same principles as Wiseman v. Vandcputt ; where, though it was determined that the legal property in the goods before they arrived was in the consignee, yet the Court of Chancery held that the consignee should not avail himself of that beyond what was due to him : but for what was due, the court directed an account ; and if anything were due from the Italians to the Bonnells, that should be paid the plaintiffs. The plaintiffs in this cause are exactly in the situation of the plaintiffs in that case ; for they have the legal property in the goods ; and there- fore, if anything be due to them, even in equity, that must be paid before any person can take the goods from them ; and 520^. was due to them, and has not been paid. After these authorities, taking into consideration also that there is no case whatever in which it has been holden that goods can be stopped in transitu after they have been sold and paid for, or money advanced upon them, hondJi.de and without notice, I do not conceive that the case is open to any arguments of i olicy or convenience ; but if it should be thought so, I beg leave to say that, in all mercantile transactions, one great point to he kept iiniforndy in view is to make the circidation and negotiation of property as quick, as easy, and as certain as jwssihle. If this judgment stand, no man will be safe either in bu3dng or in lending money upon goods at sea. That species of property will be locked up ; and many a man who could support himself with honour and credit, if lie could dispose of such property to supply a present occasion, would receive a check which industry, caution, or attention could not surmount. If the goods are in all cases to be liable to the original owner for the price, what is there to Ijo bou'dit? There is nothing but the chance of the market LICKBARROW V. MASON. 717 and that the buyer expects as his profit on purchasmg the goods, without paying an extra price for it. But Turing has trans- ferred the property to Freeman, in order that he might transfer it again, and has given him credit for the vakie of the goods. Freeman having transferred the goods again for vahie, I am of opinion that Turing had neither property, Hen, nor a right to seize 'ui transitu. The great advantage which this countrj^ possesses over most, if not all, other parts of the known world, in point of foreign trade, consists in the extent of credit given on exports, and the ready advances made on imports : but, amidst all these indulgences, the wise merchant is not unmindful of his true interests and the security of his capital. I will beg leave to state, in as few words as possible, what is a very frequent occurrence in the city of London : — A cargo of goods of the value of 2,000Z. is consigned to a merchant in London ; and the moment the}' are shipped, the merchant abroad draws upon his corre- spondent here to the value of that cargo ; and by the first post or ship he sends him advice, and incloses the bill of lading. The bills, in most cases, arrive before the cargo ; and then the merchant in London must resolve what part he will take. If he accepts the bills, he becomes absolutely and unconditionally liable ; if he refuses them, he disgraces his correspondent, and loses his custom directly. Yet to engage for 2,000Z., without any security from the drawer, is a bold measure. The goods may be lost at sea ; and then the merchant here is left to recover his money against the drawer as and when he maj- . The question then with the merchant is. How can I secure myself at all events? The answer is, I will insure ; and then if the goods come safe I shall be repaid out of them ; or, if they be lost, I shall be repaid by the underwriters on the policy ; but this cannot be done unless the property vest in him by the bill of ladmg ; for otherwise his policy will be void for want of interest (l) ; and an insurance, in the name of the foreign merchant, would not answer the purpose. This is the case of the merchant who is wealth}^ and has the 2,000Z. in his banker's hands, which he can part with, and not find any inconvenience in so doing ; but there is another case to be considered, viz. — Suppose the merchant here has not got the 2,000/., and cannot raise it before he has sold the goods "? {I) St. 19 G. 3, c. 37, s. 1. 718 LICKBARROW V. MASON. (BULLER, J.) — the same considerations arise in his mind as in the former case, with this additional circumstance, that the money must be procured before the bills become due. Then the question is, how can that be done ? If he have the property in the goods, he can go to market with the bill of lading and the policy, as was done in Snee v. Prcscot ; and upon that idea he has hitherto had no difficulty in doing so : but if he have not the property, nobody will buy of him ; and then his trade is undone. But there is still a third case to be considered ; for even the wary and opulent merchant often wishes to sell his goods whilst they are at sea. I will put the case, by way of example, that barilla is shipped for a merchant here, at a time when there has been a dearth of that commodity, and it produces a profit of 25L per cent., whereas, upon an average, it does not produce above 12L The merchant has advices that there is a great quantity of that article in Spain, intended for the British market ; and when that arrives, the market will be glutted, and the commodity much reduced in value. He wishes, therefore, to sell it im- mediately whilst it is at sea, and before it arrives ; and the profit which he gets by that is fair and honourable : but he cannot do it if he have not the property by the bill of lading. Besides, a quick circulation is the life and soul of trade ; and if the merchant cannot sell with safety to the buyer, that must necessarily be retarded. From the little experience which I acquired on this subject at Guildhall I am confident that, if the goods in question be retained from the plaintiff without repaying him w'hat he had advanced on the credit of them, it will be mischievous to the trade and commerce of this country ; and it seems to me that not only commercial interest, but plain justice and public policy, forbid it. To sum up the whole in very few words : the legal property was in the plaintiff ; the right of seizing in transitu is founded on equity. No case in equity has ever suffered a man to seize goods in opposition to one who has obtained a legal title, and has advanced money upon them ; but Lord Hardwicke's opinion was clearly against it ; and the law, where it adopts the reasoning and principles of a court of equity, never has and never ought to exceed the bounds of equity itself. I offer to your lordships, as my LICKBARROW V. MASON, 719 liumble opinion, that the evidence given by the plaintiff, and con- fessed by the demurrer, is sufficient in law to maintain the action. Ashhurst and Grose, Justices, also delivered their opinions for reversing the judgment of the Exchequer Chamber. Eyre, C.J., Gould, J,, Heath, J., Hotham, B., Perryn, B., and Thomson, B., contra. This case stood over from time to time in the House : and was postponed, in order to consider a question which arose in another case of Gibsonv.Mijiet (?n),upon the nature and effect of a demurrer to evidence, which was thought to apply also to the present case ; and, finally, the House reversed the judgment of the Exchequer Chamber, which had been given for the defendant ; and ordered the King's Bench to award a venire de novo (upon the ground that the demurrer to evidence appeared to be informal upon the record) and that the record be remitted. (»i) It was really Gibson v. Hunter, 2 H. BI. 187 ; see 10 App. Cas. 99. This celebrated case involves two imiiortant propositious. Two proposi- mi p • 1 1 • T 1 • r ±1 tioiis involved ilie tenner is, that the unpaid vendor may, m case oi the i,i principal vendee's insolvency, stop the goods sold in transitu. The case. latter, that the right to stop in transitu may be defeated by negotiating the bill of lading with a hand fide indorsee. The law relating to stoppage in transitu is now codified Law as to by the Sale of Goods Act, 1893. But this note is never- %i^ransitu tlieless retained, because the cases illustrate and explain codified by 56 & 57 Vict. the rules laid down in the Act. The Act states the law c. 71. generally to be that, "notwithstanding the property in the S. 39(1). goods may have passed to the buyer, the unpaid seller of goods, as such, has by implication of law, in case of the insolvency of the buyer, a right of stopping the goods in transitu after he has parted with possession of them ; " s. 39 (1) ; see also s. 44. " A person is deemed to be in- solvent . . . who either has ceased to pay his debts in the ordinary course of business, or cannot piiy them as they become due, whether he has committed an act of bankruptcy or not ; " s. 62 (3). The right of a vendor to stop in transitu is bestowed upon Origin of stop- him in order to prevent the injustice which would take place, ^^^^^^ '" if, in consequence of the vendee's insolvency, while the price of the goods was yet unpaid, they were to be seized upon in satisfaction of his liabilities, and so the propert}' of one man were to be disposed of in payment of the debts of 730 LICKBARROW V. MASON. Question whether stop- page rescinds the contract of sale. Hodgson v. Loy. Vendor's right not like a mere lien wliieh is lost wlicn pos- session parted with. PAoxam v. tSanders. another. The doctrine was first introduced in equity by the cases of Wiseman v. Vandeimtt, 2 Vern. 203 ; Snee v. Prescot, 1 Atk. 246 ; and D'Aquila v. Lambert, 2 Eden, 75, Amb. 399. It has since been repeatedly discussed in courts of common law ; and it appears strange that though stoppage in transitu had been for many years one of the most practi- cally important branches of commercial law, j^et its precise effect ujion the contract of sale remained uncertain until a comparatively recent period. A highly interesting dis- quisition upon its history and character will be found in Lord Abinger's judgment in Gibson v. Cayruthers, 8 M. & W. 336. The question whether stoppage in transitu rescinds the contract of sale altogether, or only puts the vendor in possession of a lien on the goods defeasible on payment of the price, has often been matter of controversy, particularly in Clay v. Harrison, 10 B. & C. 99, and was said in Stephens V. Wilkinson, 2 B. & Ad. 323, to be still undetermined ; see also Wilmhurst v. Bowker, 5 B. N. C. 547, 7 M. & Gr. 882; Gibson V. Carruthers, 8 M. & W. 321 ; Wentworth v. Outhwaite, 10 Id. 451 ; and Edwards v. Brewer, 2 Id. 375. Lord Kenyon in Hodgson v. Loy, 7 T. R. 440, was of opinion that it was not a rescission of the sale, but was " an equitable lien adopted by the law for the purpose of substantial justice ; " whence it was held to follow that part payment of the price by the buyer would not destroy the right to stop in transitu, but only diminish the lien pro tanto. Confusion sometimes arose on this subject, from its being assumed that a vendor's right over the goods in respect of his price is subject to the same rules as an ordhiary lien which cannot exist without both the right and the fact of possession, and is lost and cannot be resumed if the party clainnng it abandon either the possession, or the right to possess the thing over which it is claimed : whereas " the vendor's right in respect of his price," said Bayley, J., in Bloxam V. Sanders, 4 B. & C. 948, "is not a mere lien which ho will forfeit if he parts with the possession, but grows out of his original ownership and dominion. If goods arc sold on credit, and nothing is agreed on as to the time of delivering the goods, the vendee is immediately entitled to the possession ; and the right of possession, and the right of property, vest at once in him ; but his right of possession is not absolute, it is liable to be defeated if he becomes insolvent before he obtains possession ; Tooke V. UoUiitgirnrth, 5 T. R. 215. If the seller has dispatched LICKBAIUIOW V. MASON. 721 the goods to the buyer, and insolvency occur, he has a right in virtue of his original ownership to stop them in traitsita ; Mason v. Lickharrow, 1 H. Bl. 357 ; Ellis v. Hunt, 3 T. R. 464 ; Hodgson v. Loi/, 7 Id. 440 ; Infills v. Usherwood, 1 East, 515 ; Bothlingk v. Liglis, 3 Id. 381. Why ? Because the property is vested in the buyer, so as to subject him to the risk of any accident, but he has not an indefeasible right to the possession, and his insolvency without payment of the price defeats that right. The buyer, or those who stand in his place, may still obtain the right of possession, if tliey will pay or tender the price, or they may still act on their right of property if anything unwarrantable is done to that right. If, for instance, the original vendor sell Avhen he ought not, they may bring a special action against him for the damage they sustain by such wrongful sale, and recover damages to the extent of that injury ; but they can maintain no action in which the right of property and right of possession are both requisite, unless they have both those rights ; Gordon v. Harper, 7 T. R. 9." This luminous view of the principles upon which an unpaid vendor's right depends is totally inconsistent with the idea that stoppage in transitu operates as a rescission of the contract of sale. See, too, Martindalc v. Smith, 1 Q. B. 397 ; the opinion of Buller, J., in the text, p. 709, and the judgment of Williams, J., in Johnston v. Stcar, 15 C. B. N. S. 330, 339. In Wentworth v. Oathivaite, 10 M. & W. 451, Parke, B., Wcntworth v. stated that the question, " What the effect of stoppage in transitu is, whether entirely to rescind the contract, or onl}^ to replace the vendor in the same position as if he had not parted with the possession, and entitle him to hold the goods until the price be paid down, is a point not yet finally decided," and that " there are difficulties attending each construction." In that case one of several parcels of goods sold under an entire contract had reached the place of destination; and, upon the stoppage of the rest in transitu, the vendor insisted that the effect was to rescind the contract of sale altogether, and consequently to revest in him the property in the part which had reached the place of destina- tion. The court decided against that argument, but for different reasons ; Parke, Alderson, and Rolfe, BB., being strongly inclined to think that upon the weight of authority a stoppage in transitu must be considered, not as a rescis- sion of the contract, but as merely replacing the vendor in the same position as if he had not parted with the possession ; S.L.C. VOL. I. 46 723 LICKBARIIOW V. MA80N. Sale of Goods Act, 1893, s. 48 (1). S. 44. Vendor may order rede- livery. Rights of vendor after •stoppage. from which it followed that the vendor's right of lien on the part stopped was revested ; and no more ; whilst Lord Abinger expressed an opinion, to which, on consideration, he adhered, that the effect of stoppage in trannitu is to rescind the contract ; but he did not think that that affected the right of the buyer, in the case before the court, to retain the portion of the goods which had been actually delivered to him ; or, in other words, had reached the place of their destination ; more especially when the goods and the price might be apportioned and a new contract be implied from the actual delivery and retention of a part. The arguments in Wentworth v. Oitthwaite contain the earlier authorities on either side of the question. In the later case of Jenkyns v. Usborne, 8 Scott, N. R. 522, 816, Tindal, C.J., spoke of stoppage in transitu as a right to rescind the contract; but the nature of the right was not there in question. In Kemp v. Falk, 7 App. Cas. 373, 581, Lord Blackburn said : " It is pretty well settled now that a stoppage in transitu would not rescind the contract." See also 2oer Lord Cairns in Schotsmans y.L. d Y. E. Co., 2 Ch. 332, 340, where it seems that in accordance with this view the right of stoppage was held to be a proper subject of a bill in equity. The Sale of Goods Act, 1893, now provides that " a con- tract of sale is not rescinded by the mere exercise by an unpaid seller of his right of lien or retention or stoppage in transitu" (s. 48 (1) ) ; and defines the right of stoppage to be a right to " resume possession of the goods as long as they are in course of transit and retain them until payment or tender of the price " (s. 44). The right of stoppage is not only to countermand delivery to the bu3'^er, but to order deliver}'^ to the vendor, and the carrier on receiving such order is bound to deliver to the latter as soon as he knows that the order was given by him ; The Tigress, 32 L. J. Adm. 97 ; see the Act of 1893, s. 46 (2). As the contract of sale is not rescinded, it seems to follow, tliat the goods, while detained, remain at the risk of the buyer, and that the vendor has no right at common law to resell them, at all events until the period of credit has expired ; after that period, indeed, the refusal of the buyer or his representatives to receive the goods and pay the price, would probably be held to entitle the vendor to elect to rescind the contract; see Langfortv. 'Jailer, 1 Sulk. 113. But LICKBAEROW V. MASOX. 723 what, it will be said, if the goods be of so perishable a nature Perishable that the vendor cannot keep them till the time of credit has expired ? In such a case it is submitted that courts of law, having originally adopted this doctrine of stoppage in transitu from equity, would act on equitable principles by holding the vendor invested with an implied authority to make the necessary sale. On this point the Act of 1893, s. 48 (3), provides that Sale of Goods " where the goods are of a perishable nature, or where the g ^4g ,^^ ' unpaid seller gives notice to the buyer of his intention to resell, and the buyer does not within a reasonable time pay or tender the price, the unpaid seller may resell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract." And with regard to rescission of the contract, s. 48 (4) provides that "where S. 48 (4). the seller expressly reserves a right of re-sale in case the buyer should make default, and, on the buyer making default, resells the goods, the original contract of sale is thereby rescinded, but without prejudice to any claim the seller may have for damages." And where a seller, who S. 48 (2). has exercised his right of stoppage in transitu, resells the goods, the buyer acquires a good title as against the original buyer ; s. 48 (2). An unpaid vendor has another right somewhat analogous Right of to that of stoppage in transitu ; see Ex p. Chalmers, 8 Ch. anS'ous to 289, where it was held that " when a purchaser becomes that of insolvent before the contract for sale lias been completely %^^fs^t^ "^ performed, the seller, notwithstanding he may have agreed to allow credit for the goods, is not bound to deliver any more goods under the contract until the price of the goods not yet delivered is tendered to him ; and that, if a debt is due to him for goods already delivered, he is entitled to refuse to deliver any more till he is paid the debt due for those already delivered, as well as the price of those still to be delivered." It has been held by the J. C. that the above right is not destroyed, though the vendor retain the goods as warehouseman for the buyer ; Grice v. Hid tar d son, 3 App. Cas. 319. It exists independently of the question whether there has not been an actual rescission of the contract, for it must not be overlooked that mere insolvency by itself does not operate to dissolve the contract. Insolvency, how- ever, coupled with other facts, is evidence of the buyer's intention not to stand by the contract, upon which the vendor may act, so that by the consent of both parties the 46 2 724 LICKBARROW V. MASON. Sale of Goods Act, 1893, ss. 41, 42. Wrongful stoppage. Yendor may be unpaid though bill given. Sal.i of Goods Act, 1893, 8. 38 (1). Who may fxprr'isc the ri-'ht. contract may be rescinded ; Morr/an v. Bain, L. R. 10 C. P. 15 ; Gunn v. Bolckoir, 10 Ch. 491 ; Re Phoenix Co., 4 Ch. D. 108; Imperial Bank v. L. and St. K. Bock Co., 5 Id. 195. B}' the Act of 1893, an unpaid seller who is in possession of the goods may retain possession of them until payment or tender of the price, where the buyer becomes insolvent (s. 41) ; and, if he has made part delivery of the goods, he may retain the remainder, unless the part delivery was made under such circumstances as to show an agreement to waive the right of retention (s. 42). It is hardly necessary to add, that a wrongful stoppage in transitu has not the effect of rescinding the contract of sale, or of affecting the vendor's right to sue for the price, acquired before the stoppage ; Re Htivihertson, 1 De Gex, 262 ; see Gillard v. Brittan, 8 M. & W. 575. The taking a bill for the price of the goods does not take away the right to stop, unless the bill is taken in iiaymeiit whether paid or not ; Feise v. JVray, 3 East, 93 ; Edwards Y. Breiver, 2 M. & W. 375. " Even if he had actually started the goods, and delivered them to a carrier to be carried to the purchaser, it is perfectly well known that at law upon the buyer's insolvency there would be a right of stoppage in transitu which would revest the vendor's lien. It would make no difference that a bill had been given which had not yet become due, or that credit had been given ; " Gunn v. Bolckow, 10 Ch. 491, 501, jjer Mellish, L.J. And the Act of 1893 provides that the seller of goods is deemed to be an unpaid seller " when a bill of exchange or other negotiable instrument has been received as conditional payment" and the condition has not been fulfilled (s. 38 (1) ). The person who stops in transitu must be a consignor or vendor. A mere surety for the price of the goods has no right to do so ; Sijfken v. Wray, 6 East, 371 ; though perhaps, where the surety has paid the vendor, he ma}-- obtain the right to stop in his name under the Mercantile Law Amendment Act, 1856, s. 5 ; see Imperial Bank v. L. and St. K. Dock Co., 5 Ch. D. 195. But a person residing abroad, who buys goods for a correspondent in England, wliom he charges with a commission on the price, but whose name is unknown to those from whom he buys, may stop the goods in transitu if his correspondent fail while they arc on their i)assiigc, for the buyer abroad may be considered as a new vendor, selling the goods over again to LICKBAilKOW V. MASON. 725 the merchant in England, and only adding to the price the amount of his commission ; Feise v. Wray, 3 East, 93 ; see Falk V. Fletcher, 18 C. B. N. S. 403; Cassahoglou v. Gibb, 11 Q. B. D. 797, 806. In Newsom v. Thornton, 6 East, 17, a person who had consigned goods to be sold on the joint account of himself and the consignee was held entitled to stop them in transitu, on the consignee's insolvency. So a person who buys goods for another on his own credit and takes bills of lading indorsed for delivery to his own order, and then indorses the bills to the party for whom he bought, is a vendor for the purpose of stoppage in transitu ; The Tigress, 32 L. J. Adm. 97 ; and where a buyer's broker, being liable by custom for the price of goods, paid the vendors, it was held that, " having regard to the terms of the Mercantile Law Amendment Act, 1856, s. 5, and to the justice of the case, the lien of the unpaid vendors was a securit}'' which subsisted for the benefit of the broker who paid the money, and therefore he could in their name have stopped the goods ; " Imperial Bank v. L. and St. K. Dock Co., 5 Ch. D. 195. In Hathcsing v. Laing, 17 Eq. 92, Bacon, V.-C, seems to have held that a broker, who had paid the price of goods for his principal, the buyer, and had shipped them in the buyer's name, was not in the position of a vendor, so as to stop in transitu; but the case was decided also on other grounds, and as regards this point is perhaps hardly reconcilable in principle with those last cited. On this point the Act of 1893 provides that "the term Sale of Goods ' seller ' includes any person who is in the position of a g '^gg ,2) ' seller, as, for instance, an agent of the seller to whom the bill of lading has been indorsed, or a consignor or agent who has himself paid, or is directly responsible for, the price " (s. 88 (2) ). In Jenkyns v. Usborne, 7 M. & Gr. 678, attempt was made, Property need but without success, to confine the right to vendors in whom "^5^^^^^ the property m the goods has actually vested at the time of vendor, the stoppage, and to exclude from it a vendor in whom the property in the goods had not vested at the time of the stoppage, but only an interest in and right to receive a part of the goods to be afterwards ascertained and appropriated. Tindal, C.J., there said : " We see no sound distinction, with reference to the right of stoppage in transitu, between the sale of goods the property of which is in the vendor, and the sale of an interest which he has in a contract for the 726 LICKBARROW V. MASON. Stoppage by agent ; ratification. What is a transitus and when does it terminate ? Sale of Goods Act, 1893, s. 45 (1). Sale of Goods Act, 1893, 8. 45 (3). delivery of goods to him. If he may rescind the contract in one case, for the insolvency of the purchaser, he must, by i^arity of reasoning, have the right to rescind it in the other." The goods may be stopped in transitu by an agent on behalf of the unpaid vendor provided that he have sufficient authority to do so ; see Whitehead v. Anderson, 9 M. & W. 518 ; but a stoppage by an unauthorised person, professing to act for the vendor, is inoperative, though ratified, if such ratification be made after the period during which the vendor himself could have stopped in transitu ; Bird v. Brown, 4 Exch. 786. Stoi)page in transitu, as its name imports, can only take place while the goods are on their way. If the goods once arrive at the termination of their journe}', and come into the actual or constructive possession of the consignee, there is an end of the seller's right over them. And, therefore, in most of the cases the dispute has been whether the goods had or had not arrived at the termination of their journey. The rule to be collected from all the cases is, that they are in transitu so long as they are in the hands of the carrier as such, whether he was or was not appointed by the con- signee, and also so long as they remain in any place of dej^osit connected with their transmission. " 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 behalf, takes delivery of them from such carrier or other bailee;" Sale of Goods Act, 1893, s. 45 (1). If, however, after their arrival at their place of destina- tion, the goods be warehoused with the carrier, whose store the buyer uses as his own, or even if they be warehoused with the vendor himself, and rent be paid to him for them, that puts an end to the right to stop in transitu. " 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; " Sale of Goods Act, 1893, s. 45 (3). Thus it was held that the right to stop the goods was gone, because they had reached the warehouse which the LICKBARROW V. MASON. 727 buyer was using as his own, in the following cases : Richard- son V. Goss, 3 B. & P. 127 ; Leeds v. Wru/ht, Id. 320 ; Scott V. Pettit, Id. 469 ; Dixon v. Bakhven, 5 East, 175 ; Roice v. Pickford, 8 Taunt. 83 ; Foster v. FramjJton, 6 B. & C. 107 ; and Hurry v. Mangles, 1 Camp. 452, where the vendor himself warehoused them at a rent ; see also Stoveld v. Hughes, 14 East, 308; Heinekey v. Earle, 8 E. & B. 410, 427; Cooper v. Bill, 3 H. & C. 722; Merchant Co. v. Phoenix Co., 5 Ch. D. 205. The goods were held to be still in transitu in Hodgson v. Log, 7 T. R. 440 ; Mills v. Ball, 2 B. & P. 457 ; Smith v. Goss, 1 Camp. 282 ; Nicholls V. Le Feuvre, 2 B. N. C. 83 ; Edwards v. Brewer, 2 M. & W. 375 ; and James v. Griffin, 1 Id. 20, 2 Id. 623, where the majority of the court held that the buyer's statement that he did not intend to take possession was admissible in evidence, though not made to the vendor or the wharfinger. As to Coates v. Railton, 6 B. & C. 422, see Kendal v. Marshall, 11 Q. B. D. 356, 366, per I.ord Esher. The arrival of the goods at a place where the}^ are to be at the orders of the buyer, in the hands of persons who are to keep them for him, is an end of the transitus, although the place be not that of their ultimate destination ; because in such a case they have got into the hands of agents for the buyer, not concerned merely in their carriage ; Went- worth V. Outhwaite, 10 M. & W. 436 ; Dohson v. Wentworth, 4 M. & Gr. 1080 ; Cusack v. Robinson, 1 B. & S. 299. And so, it seems, is the arrival of the goods into the hands of a person employed by the buyer to receive them from the first carrier, or out of the warehouse where they were when sold, and give them a new destination ; as in Valpy v. Gibson, 4 C. B. 837, where the goods were ordered for the Valpa- raiso market, and the court expressed the opinion that the transit was at an end upon the arrival of the goods in the hands of the buyer's shipping agent at Liverpool ; see also Exp. Gihbes, 1 Ch. D. 101. Secus, where the goods have only arrived in a vessel at a port for orders, though the buyer is to give the orders for the ultimate destination; Eraser y. Witt, 7 Eq. 64; or where the goods were delivered at the port of destination to a warehouseman not named by the consignee, but who con- sidered himself to be acting as agent for the consignee ; Ex p. Barrow, 6 Ch. D. 783. In Ex p. Watson, 5 Id. 35, goods were forwarded by the seller from Yorkshire to London, to be there shipped for Shanghai by the buyer, on the terms Effect of the goods being at the orders of the buyer, in the hands of agents for keeping them. 7'ZS LICKBARROW V. MASOX. of a special arrangement between the seller and buyer, whereby the former was to have a lien on the bill of lading and shipment ; and it was held that the transitus continued from Yorkshire to Shanghai. ciarf^' In Bethell v. Clark, 20 Q. B. D. 615, goods were bought b}^ merchants in London of vendors in Wolverhampton, and the buyers wrote to the vendors asking them to consign the goods " to the Darling Downs, to Melbourne, loading in the East India Docks." The goods were delivered to carriers to be forwarded to the ship, and were shipped. The C. A. held that the transit continued until tlie goods reached Melbourne. In Lyons v. Hoffnung, 15 App. Cas. 391, a similar decision was given by the Judicial Committee. Kciulaiv. Qj^ ^jjg other hand, where the buyer of goods at Bolton Marshall. ,. , , „ ' , , ,/ i • ^ dn-ected the seller to send them to M., his agent at Garston, and at the same time instructed M. to forward them to Eouen, it was held that the transit had ceased when the goods had reached Garston and were lying there in the warehouse of the railway company, who had given M, the 4. usual notice that the goods had arrived, and that if delivery were not taken in due course the company would hold them as warehousemen for him and would charge rent ; Kendal v. Marshall, 11 Q. B. D. 356. Ex jj. Miles, 15 Id. 39, was a somewhat similar case, in which the transit was held as a matter of fact to be over on the arrival of the goods at a place short of their final destination ; see also Re Gurney, 67 L. T. 598 ; and the Act of 1893, s. 45 (3), ante, p. 726. Other cases as In Coivasjee V. Thompson, 5 Moo. P. C. 165, the goods stitutesa °" were purchased in London " free on board," to be paid for transitus. upon delivery on board, in a bill at six months, or cash less discount, at the seller's option. The goods were deHvered by the seller into a vessel indicated by the buyer, and a receipt for them was obtained from the mate, which the seller kept. The seller elected to be paid by bill, which was accordingly given, and the master, n-ithout reqiiirim) the return of the mate's receipt, signed bills of lading for the goods as shipped by the buyer. By the custom of the port, the phrase " free on board " imports that the buyer is con- sidered as tlie sliipper, tliough the seller is to bear the expense of sliipinent. It was lield that the transit was at an end, and the right to stop gone, so soon as the goods were put on board, and the bill given for the price. Qiucre. See Kx p. Uosevear Co., 11 Ch. D. 560 ; Brindley v. Cihjn:yn Co., 55 L. J. Q. B. 67. LICKBAEROW V. MASON. 729 As to how far the intention with whicli the goods were How far a sliipped may affect the question, and when and how far in fact ^^" ° this sort of case the question is one of fact, even though the documents are not express upon the point, see also Van Casteel v. Booker, 2 Exch. 691 ; Key v. Cotesworik, 7 Id. 595 ; Bro7cne v. Hare, 3 H. & N. 484, 4 Id. 822; Schuster V. McKellar, 7 E. & B. 705 ; Green v. Sichel, 7 C. B. N. S. 747; Moakes v. Nicholson, 19 Id. 290; Shepherd v. Harrison, L. E. 5 H. L. 116 ; and Bethcll v. Clark, 20 Q. B. D. 615. For a case where the facts were held to negative a transit, the ship belonging to the buyer, see Schotsmans v. L. tC- Y. R. Co., 2 Ch. 332 ; Exj). Francis, 56 L. T. 577. For the reverse case, where the shi]) was only chartered by the buyer, Berntdson v. Stramj, 4 Eq. 481, 3 Ch. 588; Exp. Eosevear Co., 11 Ch. I). 560. The rule given in the Act of 1893, s. 45 (5), is that Sale of Goods "when goods are delivered to a ship chartered b3^the buyer, ^°t' 1^93, it is a question depending upon the circumstances of the jDarticular case, whether they are in the i^ossession of the master as a carrier, or as agent to the buyer." Whilst, however, goods which have arrived at the termi- Carrier holds nation of their journey remain in the hands of a carrier lor buyer only IT ii- ••11-- imder new employed to convej^ them to their original destination as agreement. between the buyer and seller, no kind of constriutlre posses- sion in the buyer arises, unless "the carrier enters expressly, or by implication, into a new agi'eement, distinct from the original contract for carriage, to hold the goods for the consignee as his agent, not for the purpose of expediting them to the place of original destination pursuant to that contract, but in a new character, for the purpose of custod}' on his account, and subject to some new or further order to be given to him ; " Whitehead v. Anderson, 9 M. & W. 518, 535. " The transitus is not at an end so long as the carrier continues to hold the goods as a carrier. It is not at an end until the carrier, by agreement between himself and the consignee, undertakes to hold the goods for the consignee, not as carrier, but as liis agent ; " j)er James, L.J., Ex p. Cooper, 11 Ch. D. 68, 78. In the absence of such an agreement, it seems that the mere act of marking or sampling the goods, or of giving notice to the carrier to hold the goods for the buyer, though done with intent to take possession, does not establish a constructive possession in the buyer, or affect the right of stoppage ; White- head V. Anderson, supra', Coventry v. Gladstone, 6 Eq. 730 LICKBARKOW V. MASON. 44 ; see Dixon v. Yates, 5 B. & Ad. 313. In Ex p. Golding, 13 Ch. D. 628, it was held that the signature hy the ship- master of the bill of lading made out in the name of a sub- purchaser did not terminate the transitus indicated by the original buyer. See the Act of 1893, s. 45 (3), ajite, p. 726. Where goods The same law holds in the case of goods which, when Shai-ror^in sold, are on a wharf or in a dock, where they are intended a dock. to remain until taken away by the buyer. In such a case the goods are considered as constructively in transitu (see per Lord Abinger, Gibson v. Carruthers, 8 M. & W. 341), and the right of the seller to stop them remains so long as the goods are not taken away, or the wharfinger or dock owner has not become the buyer's agent. In Tanner v. Scovell, 14 M. & W. 28, the wharfinger, upon orders from the seller to weigh and deliver the goods to the buyer, had furnished the seller with the weights and delivered part of the goods to the buyer's order ; yet, as he had not received warehouse rent from the buj^er, or transferred the goods into his name, or done an}^ other act to become his agent, the rest of the goods were considered subject to the seller's right of stoppage. In Lackington v. Atherton, 7 M. & Gr. 360, the seller, who had himself bought the goods of the importer, in whose name they were warehoused in the docks, gave the buyer a delivery order upon Avhich the dock com- pany refused to act, because not given by the importer. Upon the subsequent insolvency of the buyer, the seller himself obtained a deliver}^ order from the importer and possessed himself of the goods. See also Dixon v. Yates, 6 B. & Ad. 313 ; Imperial Batik v. L. d St. K. Dock Co., 5 Ch. D. 195; Exp. Cooper, 11 Id. 68. The question in all such cases seems to be, whether the warehouseman at the time of the stopj)age held the goods as agent for the consignor, or as agent for the consignee. D.-;liver\- of If the vendor allow the buyer to take possession of part J''"^'^' of the goods sold under an entire contract, without intending to retain the rest, his right to stop in transitu is gone ; Hammond v. Anderson, 1 B. & P. N. K. 69 ; see Sluhey v. Ileifward, 2 H. Bl. 504 ; Hanson v. IMcycr, 6 East, 614 ; see comments on the first two cases in Ex p. Cooper, 11 Ch. D. 68, and in Ex p. Ealk, 14 Id. 446, per Bramwell, L.J. But it is otherwise if he do intend to retain the remainder; ]>unncij v. Poijntz, 4 B. & Ad. 570; see Wcntirorth v. Oiilhwaitc, 10 M. & W. 451 ; Ex p. Chalmers, 8 Ch. 289. It has been said that, prima facie, a delivery of part LICKBARROW V. MASON. 731 imports an intention to deliver the whole ; _?9er Taunton, J., J^etts V. Gihhins, 2 A. & E. 73. That dictum, however, which had been questioned by the author in his work on Mercantile Law (5th ed., 488, 530), was overruled in Tanner V. Scovell, 14 M. & W. 28. In Ex p. Cooper, 11 Ch. D., 68, 73, Brett, L.J., laid it down "that a deliver}' of part, or even of the bulk of a cargo, is not prima facie a delivery of the whole ; and that those who rely upon the part delivery as a constructive delivery of the whole are bound to show that the part delivery took place under such circumstances as to make it a constructive delivery of the whole ; " and in Kemp V. Falk, 7 App. Cas. 573, 586, Lord Blackburn said : *' If either of the parties does not intend it as a delivery of the whole, if either of them dissents, the part delivery is not a constructive delivery of the whole." " I rather think the onus is upon those who say it was so intended." In Tanner v. Scovell it was laid down that if the bu3'er Taniier v. takes possession of part, not meaning thereby to take pos- ''"^^ ' session of the whole, but to separate that part only, it puts an end to the transitus only with respect to that part and no more. In that case, under a general order to deliver the goods, the buyer procured the actual delivery of certain portions of them which he had resold, and the delivery of those portions was held not to operate as a delivery of the whole, or to affect the vendor's right as to the rest. In Jones V. Jones, 8 M. & W. 431, the assignee of a cargo of goods under a trust deed took possession of part of the cargo upon its arrival, and directed the rest to be conveyed to a designated place, with the intention of obtaining possession of the whole for the purposes of the trust ; and it was held that such taking jDossession of part did put an end to the transit ; but it was in that case assumed to be clear law that the mere delivery of part to the buyer, if he means to separate that part from the remainder, does not amount to a delivery of the whole so as to defeat the right to stop in transitu. In Tannery. Scovell, supra, the whole question was stated to depend on tlie intention of the buyer ; but perhaps that statement was intended to apply only to cases like Tanner V. Scovell, where it was in the power of the buyer at the time, if he pleased, to take all. See Bolton v. L. i(; Y. R. Co., L. R. 1 C. P. 431, where the buyer took part, having the power to take all, and refused to take the rest, and the right to stop was held not to be gone, and Ex p. Catling, 732 LICKBARROW V. MASON. Sale of Goods Act, 1893, s. 45 (7). Where buyer rejects goods which remain with carrier. S 45 (4). Vendee may anticipate termination of transit. ir, (2). Carrier cannot prolont; transit ny refusing to deliver. 29 L. T. 431. In Ex 2J. Gihhes, 1 Ch. D. 101, it was held that there was a constructive delivery to the buyer of the whole of the goods by a delivery of part. In Ex p. Cooper, 11 Ch. D. 68, it was held that part delivery did not amount to a constructive delivery of the whole where freight had not been paid on part of the itndelivered goods ; and in Kemp V. Falk, 7 App. Cas. 573, the facts were also held to exclude the notion of a constructive delivery of the whole cargo. In the Act the law is thus stated : " Where part delivery of goods has been made to the buyer or his agent in that behalf, the remainder of the goods ma}?^ be stopped in transitu, unless such part delivery has been made under such circumstances as to show an agreement to give up possession of the whole of the goods " (s. 45 (7) ). " 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; " Sale of Goods Act, 1893, s. 45 (4). This seems to be founded upon Bolton v. L. dc. Y. 11. Co., supra. It was once thought that, although the determination of the transit puts an end to the vendor's right to stop the goods, the buyer could not anticipate its natural deter- mination, as for instance, by going to meet the goods at sea; Hoist v. Pownal, 1 Esp. 240. But the contrary view was expressed in Mills v. Ball, 2 B. & P. 457, 461 ; Oppen- Jieim V. Piussell, 3 Id. 42, 54; and Foster v. Frainpton, 6 B. & C. 107. In Whitehead v. Anderson, 9 M. & ^\. 518, 534, it was laid down as indisputable, that if the vendee take the goods out of the possession of the carrier into his own before their arrival, with or without the consent of the carrier, the right to stop in transitu is at an end ; though, if he were to take them without the consent of the carrier, it might be a wrong to him for which he would have a right of action ; see also L. and N. W. R. Co. v. Bartlett, 7 H. & N. 400. And it is laid down in the Act of 1893 that "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 " (s. 45 (2) ). The carrier cannot prolong the transit of the goods after arrival at the port of destination, b}' wrongfully refusing to give tliem up to the consignee upon demand and tender of freight ; Bii'd v. Brown, 4 Exch. 786. On this pt)int the LICKB ARROW V. MASON". 738 Act, s. 45 (6), provides thnt "where the carrier or other S. 45 (6). bailee ivrongfully refuses to deliver the goods to the buj'er, or his agent in that behalf, the transit is deemed to be at an end." Nor can the vendor's right be defeated by the enforce- Vendor's right ment of a claim against the vendee, as, for instance, by b^^th^*^^*^'^'^ process of foreign attachment at the suit of his creditor; claims. Smith V, Goss, 1 Camp. 282 ; or by the carrier's assertion of a general lien against him ; Oppenheim v. Russell, 3 B. & P. 42. " To make a notice effective as a stoppage in transitu, it To whom must be given to the person who has the immediate custody ^^^^^^^ "^ „ - . . . '^ stoppage must of the goods ; or, it given to the principal whose servant be given. has the custody, it must be given at such a time and under such circumstances that the principal, by the exercise of reasonable diligence, ma}^ communicate it to his servant, in time to prevent the delivery of the goods to the consignee ; " Whitehead v. Anderson, 9 M. & W. 518; see also Ex p. Watson, 5 Ch. D. 35 ; and Phelps v. Comber, 29 Id. 813. This statement of the law is adopted almost verbatim by the Sale of Goods Act of 1^93, s. 46 (1), which provides that the notice " may f °4^{if'' be given either to the person in actual possession of the goods or to his principal. In the latter case, the notice, to be effectual, must be given at such time and under such circumstances that the principal, by the exercise of reason- able diligence, may communicate it to his servant or agent in time to prevent a delivery to the buyer." As to whether there is a duty on the shipowner to communicate, see per Lord Bramwell, Ex p. Falk, 14 Ch. D. 455 ; per Lord Blackburn, Kemp v. Falk, 7 App. Cas. 585. The second vendee of a chattel cannot, generally speak- Generally veil- ing, stand in a better situation than his immediate vendor ; hettei^than ° Small V. Moate, 9 Bing. 574 ; Kern v. Deslandcs, 10 C. B. vendor's. N. S. 205 ; Sheridan v. Neiv Quay Co., 4 Id. 618 ; Schuster V. McKellar, 7 E. & B. 704. If, therefore, the vendee sell the goods before they have been delivered to him, he sells them, generally speaking, subject to the vendor's right to stop in transitu; Dixon v. Yates, 5 B. & Ad. 313; Jenkyns v. Usborne, 7 M. & Gr. 678 ; see Sale of Goods Act, 1893, s. 47, infra. Subject to the vendor's rights the subvendee is of course entitled to the goods ; Kemp v. Falk, supra ; Exp. Golding, 13 Ch. D. 628. But oni the above rule the principal case engrafted an But rio-ht to exception ; for the second and main point in Lickbarrow v. ^*°P defeated Mason is, that the vendee ma}-, by negotiating the bill of nient of bill lading to a bona fide transferee for value, defeat the vendor's ofl^^'^i^s; 734 LICKBAREOW V. MASON. or other document of title. Sale of Goods Act, 1893, s. 47. ' ' Abbott on Shipping " on this point. right to stop in transitu. And under the Act of 1893, s. 47, " where a document of title to goods has been lawfully transferred to any person as buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable con- sideration, then, if such last-mentioned transfer was by way of sale, the unpaid seller's right of lien or retention or stoppage in transitu is defeated, and, if such last-mentioned transfer was by way of pledge or other disposition for value, the unpaid seller's right of lien or retention or stoppage in transitu can only be exercised subject to the rights of the transferee." See also the Factors Act, 1889, s. 10. As to what is a document of title under the Factors Act, see post, p. 742. It has the same meaning in the Sale of Goods Act, by s. 62 (1). By s. 62 (2), " a thing is deemed to be done ' in good faith ' when it is in fact done honestly, whether it be done negligently or not." A succinct history of the law on this point is given by Lord Tenterden, in his admirable work on Shipping, where he remarks, that " the earliest mention of the subject in our law books is the case of Evans v. Martlett, 1 Lord Raym. 271, 12 Mod. 156 ; in which Holt, C.J., said : ' The consignee of a bill of lading has such a property, that he may assign it over:' and Shower said 'that it had been adjudged so in the Exchequer.' But in that case, the effect of such an assignment was not properly before the court, and does not appear to have been discussed or argued ; and the case supposed to be referred to by Shower has not been found. In the case of Snee v. Prescot, 1 Atk. 246, the right of the pawnee of the bill of lading as against the consignor was not noticed or insisted upon." He then proceeds to comment on the cases of Wright v. Campbell, 4 Burr. 2046, 1 W. Bl. 628 ; Hihbert v. Carter, 1 T. E. 445 ; Caldwell V. Ball, Id. 205 ; and Lickharrow v. Mason ; and concludes by stating that that cause was tried again, and that " the Court of King's Bench, at the head of which Lord Kenyon had in the meantime been placed, and who had, in another cause, expressed his approbation of the first judg- ment in this case, as being founded on principles of justice and connnon honesty, again decided the case without argu- ment, in conformity to the first decision of that court; 5 T. It. 683 ; and in order that the question might again be carried to the other tribunals, another writ of error was brought ; but it was afterwards abandoned, and it is now LICKBAUKOW V. MASON. 735 the admitted doctrine in our courts that the consignee may, vnider the circumstances before stated, confer an absolute right and property upon a third person, indefeasible by any claim on the part of the consignor." To defeat the vendor's right of stoj^page, tlie indorse- To defeat ment of the bill of lading must be for value. In Rodijer v. J)^e^ndor°se- Comptoir d'Escompte, L. R. 2 P. C. 393, it was held that nient must be an antecedent debt was not a sufficient consideration to °^ ^^ "'^' defeat the right of stoppage in transitu. But the C. A. exj)ressly dissented from that view in Leask v. Scott, 2 Q. B. D. 376. In the former case, the buyers being j^ressed -Rodger v. by their bankers, who were their creditors to a large J;Escompte amount, made an assignment to them of all goods and bills of lading, or other documents for goods, to arrive in De- cember, 1866. In pursuance of their agreement in the assignment, the buyers, on the subsequent arrival of bills of lading, indorsed them to the bankers. They received no consideration for such indorsement except an existing debt and* the release of an antecedent agreement by them to furnish bills and shipping documents, on the faith of which the advances were made to them by the bankers. At the time of the assignment it was notorious that the assignors were in difficulties ; and b}'^ the assignment, if not before, they were made insolvent. It was held that the indorse- ment of the bills of lading did not defeat the vendor's right to stop in transitu. See Chartered Bank of India v. Hen- derson, L. R. 5 P. C. 501, a somewhat similar case, where it Avas held that the indorsement was for a sufficient con- sideration. In Leask v. Scott, supra, the facts were as follows : On Leask v. Scott. the 22nd Dec, 1875, Geen, a fruit merchant in London, agreed to purchase of the defendants a shipment of nuts from Naples to London, by the Trinidad, " reimburse- ment as usual," which was by acceptance at three months on delivery of the shipping documents. On the 1st Jan., 187*3, being prompt day, Geen being already indebted to the plaintiff, his fruit broker, for over 10,000/., ap})lied to him for a further advance of 2,000L The plaintiff said, *'You may have it, but you must first cover up your account." Geen said he would give him cover, and the plaintiff at once handed Geen a cheque for 2,000Z. On the 4th Jan., the bill of lading, dated the 29th Dec, 1875, indorsed by defendants in blank (the nuts being made deliverable to their order), was handed by their agent to 736 LTCKBARROW V. MASON. Geen, who at once accepted a draft for the price, 224L On the next day Geen handed to the plaintiff the hill of lading and other similar documents to the value of about 5,000L in performance of his promise to give the plaintiff cove)-. On the 8th Jan. Geen stopped payment. The Trinidad arrived off Liverpool on the 3rd Feb., and the defendants sought to stop the nuts in transitu, the plaintiff claiming them under the bill of lading. The jury found that the plaintiff received the bill of lading honestly and fairly : that valuable consideration was given on the understanding of security being given : and that the security given was to secure the 2,000L, and also the old account. The defendant argued, on the authorit}^ of Rodger v. Comptoir d'Escomjyte, that the equitable right of stoppage prevailed against a legal title acquired by receiving the bill of lading for a considera- tion, no part of which was caused to be given by the bill of lading. The C. A., whilst of opinion that this argument was the same as the ratio decidendi in Rodger v. Comptoir d'Escompte, distinctly declined to follow that case, holding that there was *' not a trace of such distinction between cases of past and present consideration to be found in the books": and further, that "practically sucli a past con- sideration" {qiuere, transaction) " as was then under dis- cussion had always a present operation by staying the hand of the creditor." The judgment of Field, J., based upon Rodger v. Comptoir d'Escompte, was accordinglj^ reversed. Another view of both these cases might perhaps be that the giving of securit}' should be treated as relating back to the agreement to give it, in which case it would have been given for a present consideration. Qiuere, how far Leask v. Scott is consistent with or overrules Spalding v. Ruding, 6 Beav. 376. Indorsement Further, *'' although the shipper may have indorsed in must lie by blank a bill of lading, deliverable to his assignees, his right one licivin" . . „ . . authority to is not affected by an appropriation of it without his au- uiilor.sc. thority. It is not a negotiable instrument like a bill of exchange ; " per Campbell, C.J. ; Gurney v. Behrend, 3 E. & B. 633. See also Schuster v. M'Kellar, 7 E. & B. 704 ; The Marie Joseph, L. R. 1 P. C. 219 ; Hathesing v. Laing, 17 J^q. 1)2 ; (lilhert v. Guignon, 8 Ch. 16 ; Gaharron v. Kreeft, L. It. 10 Ex. 274; Ogg v. Shuter, 1 C. P. D. 47; Mirahita V. Iviperinl Ottoman Bank, 3 Ex. D. 164 ; and Glyn v. E. cC- ]]'. I. Dock Co., 7 App. Cas. 591, as to wliat state of facts lias 1)0(11 belli suflicient to establish the abilit}^ of the LICKBARROW V. MASOX. 737 indorse!' to confer a good title on a hond fide indorsee ; and also the Factors' Acts, 1889, which will be more fully noticed hereafter. If the assignee of a bill of lading act mold fide, for Assignment instance, if lie knows that the consignee of the goods is ^^^s* be 5o?wJ insolvent, and takes the assignment of the bill of lading for the purpose of defeating the right to stop in transitu, and so defrauding the consignor ont of the price, he will be held to stand in the same situation as the consignee : and the consignor will preserve his right of stoppage ; j:)t'r Lord Ellenborough, Camming v. Brown, 9 East, 506, 514. And And condition if the bill of lading contain a condition, e.g., if it be ofin'/oi-«enient *=> . must be ful- nidorsed upon it that the goods are to be delivered, provided filled. E. F. pay a certain draft, every indorsee takes it subject to that condition, and will have no title to the goods, unless it be performed ; Barroiv v. Coles, 3 Camp. 92. Where the shipper takes and keeps in his own or his Effect of agent's hands a bill of lading, making the goods deliverable deih-Trable^'^^ to his own order to protect himself, the hold retained under to shipper's the bill of lading is not merely a right to retain possession °^ ^^* till the conditions upon which it was given are fulfilled, but involves in it a power to dispose of the goods on the ven- dee's default, so long at least as the vendee continues in default; Of/// v. Shutcr, 1 C. P. D. 47. Where the goods are shipped under such circumstances Unless right as to show an intention that the property or right of pos- tesuTcon^-" session should not vest in the consignee until some further signee ques- act is done, such as payment, or handing over the bill of no"a,."se lading, no question of stoppage in transitu can arise before that act is done ; see Tamer v. Liverpool Docks, 6 Exch. 543; Sheridan v. New Quay Co., 4 C. B. N. S. 618. In cases where a bill of lading may be, and has been. Vendor may pledged by the consignee of the goods, as a security for his stop ^subject to own debt, the legal right to the possession of the goods rights and passes to the pledgee ; but the right to stop them in transitu, "ssJ{.g"^^^^'^^ in case the consignee should become insolvent, is not abso- lutely defeated, as it is in the case of a sale of the bill of lading b}' the consignee ; for the vendor may still resume his interest in them, subject to the rights of the pledgee, and will have a right, at least in equity, to the residue which may remain, after satisfying the pledgee's claim. And further, if the goods comprised within the bill of lading be pledged along with other goods belonging to the pledgor himself, the vendor will have a right to have all the pledgor's S.L.C. VOL. I. 47 738 LICKBARROW V. MASON. own goods appropriated to the discharge of the pledgee's claim before an}^ of the goods comprised within the bill of lading are so. R'^. Wcstzin- This was decided in Be Westzinthus, 5 B. & Ad. 817, where Lapage & Co., having purchased oil from Westzin- thus, paid for it by acceptance : and being in possession of the bills of lading, pledged them with Hardman, as a security for certain advances. Lapage & Co. became bank- rupt, and their acceptance in the plaintiff's favour was dis- honoured. At the time of their bankruptcy they owed Hardman 9,271/. on account of advances ; as a security for which he held, besides the bill of lading, goods to the value of 9,96 IZ., belonging to Lapage himself. The court held that Westzinthus, who had, upon the bankruptcy of Lapage & Co., given notice to the master of the ship that he claimed to stop the oil in transitu, had a right to insist upon the proceeds of Laj^age's own goods being appropriated to the discharge of Hardman's lien, and, as tlie}^ proved sufficient to satisfy it, had a right to receive the entire proceeds of his oils. " As Westzinthus," said Lord Denman, " would have had a clear right at law to resume the possession of the goods on the insolvency of the vendee, had it not been for the transfer of the property and right of possession, for a valuable consideration, to Hardman, it a2:»pears to us that, in a court of equit}-, such transfer would be considered as a pledge or mortgage only ; and Westzinthus would be con- sidered as having resumed his former interest in the goods, subject to that pledge or mortgage, in analogy to the common case of a mortgage of real estate, which is considered as a mere securit}^, and the mortgagor as the owner of the land. We, therefore, think that Westzinthus, by his attempted stoppage in transitu, acquired a right to the goods in equity (subject to Hardman's lien tliereon) as against Lapage and his assignees, who are bound by the same equities that Lapage himself was ; and this view of the case agrees with the opinion of Buller, J., in his comment on Snce v. Present in Lirlharruw v. Mason. If then Westzinthus had an equilal>l(' right to the oil subject to Hardman's lien tliereon i\)V his debt, he would, b}' nuians of his goods, have become a surety to Hardman for Lapage's debt ; and would then have a clear equity to oblige Hardman to have recourse against I;apage's own goods depositcul with him to pa}^ his dcltt in ease of the surety. 7\nd all the goods, both of Lapage and ^\'est/int1nIs, liaving been sold, he wt)uld have LICKB ARROW V. MASOX. 7:39 a right to insist upon the proceeds of Lapage's goods being -S« Westzin- appropriated, in the first instance, to the payment of the debt." See this last point foUowed in Ex p. Alston, 4 Ch. 168; and see Coventry v. Gladstone, 6 Eq. 44. SpdhJingx. Iliidinf/, 6 Beav. 376, confirms Be WestzintJins, and shows that the goods cannot be retained as sccuritij for a general balance of account, but only for the specific advance made upon security of the bill of lading. But compare, as to the latter point, Iiod(jer\. Comptoir d' Escompte, dissented from in Leask v. Scott, ante, p. 735. In Kemp v. Falk, 7 App. Cas. 573, and Exp. (Joldinr/, 13 Ch. D. 628, the cases of Spalding v. liadiiuj and Ex p. Wcsizinfhus were followed and approved. See Sale of Goods Act, 1893, s. 47, ante, p. 734. Whilst, however, the indorsement of a bill of lading might Until Bills of defeat the right of stoppage in transitu, still, l)efore the ^|j i,\'',f,t^„^f' Bills of Lading Act, 1855, the transfer of a bill of lading action parsed, did not, like that of a bill of exchange, confer any right on the assignee to sue upon the contract expressed thereby ; Thompson v. Dominy, 14 M. & W. 403 ; Howard v. Sheplicrd, 9 C. B. 297. That Act, however, altered the law in this Bills of Lading respect. By s. 1, rights of action and liabilities upon the ^g*^*^ ig'^viet bill of lading are to vest in and bind the consignee or c. ill, s. i. indorsee to whom the property in tJie goods shall j^^ss. See Fox V. Nott, 6 H. & N. 630, showing that the section was not intended to exonerate the original shipper ; Short v. Simpson, L. E. 1 C. P. 248 ; and The St. Cloud, Brown & Lush. 4. As to what is prima facie evidence that the property passed, see Draeachi v. Anglo-Egyptian Bank, L. R. 3 C. P. 190; and The Freedom, L. R. 3 P. C. 594. The question whether by an indorsement and delivery of Indorsununt the bill of lading by way of security for an advance " the J^^^l ° property in the goods passes " within tliis section, so as to Bicrdick-v. make the indorsee liable for freight, was fully discussed in Burdick v. Sewcll, 10 Q. B. D. 363, 13 Id." 159, 10 App. Cas. 74. It was there eventually decided by the H. L. that where such indorsement and delivery operates merely as a jiledge, so as to give to the pledgee only a special property, and not as an assignment of the whole property in the goods, the pledgee is not an indorsee to whom the property passes within the Act. Lords Selborne and Blackburn thought that it would be the same if the transaction were in fact a mortgage, but that point was not decided in the H. L. ; see" 10 App. Cas. 85, 96, 103. See also Bristol Bank V. Mid. B. Co., (1891) 2 Q. B. 653. 47 2 740 LICKBARROW V. MASON. Bills of Ladiug Act. S. 2. Bill of ladiiH btill not strictly a negotiable instrument. S. :5. The pledgee is liable, however, irrespectively of the Act, on the bill of lading if and when he takes delivery of the goods under the bill of lading, on the ground that the fact of so doing is evidence of a new agreement by him with the shipowner to comply with the terms of the bill of lading ; jKT Lord Selborne, Seivell v. Burdick, 10 App. Cas. 86, 89 ; see Allen v. Coltart, 31 W. R. 841. By s. 2 it is provided that the Act is not to affect rights of stoppage in transitu, or claims for freight against the shipper or owner of the goods, or the consignee or indorsee as owner, or by reason of his receipt of the goods. It seems that the Act has not altered the rule, that the indorsement of a bill of lading gives no better right to the indorsee than the indorser himself had, and that in this respect a bill of lading still differs from a bill of exchange in the same way as it did before the Act ; see Gurney v. Behrend, 3 E. & B. 622. There the bill of lading was sent in a letter from a shipper, stating that he had drawn against the consignment, and it was held that the acceptance of the draft was not thereby made a condition precedent to the right to negotiate the bill of lading, though if it had been, and had not been complied with, an indorsement of the bill of lading would not have defeated the seller's title. See Keij V. Cotesivortli, 7 Exch. 595 ; Tlie Argentina, L. E,. 1 A. & E. 370 ; and the cases on this point cited ante, p. 736. If the shipper indorses the bill as a pledge, and whilst it is so held the goods are misdelivered, he may, on reindorse- ment of the bill to him on payment of the advance for which it was pledged, sue for the misdelivery ; Short v. Simpson, L. Pt. 1 C. P. 248. The rights and liabilities of the consignee or indorsee under the Act pass from him by indorsement over; SniurtJi- wartev. Wilkins, 11 C. B. N. S. 842 ; if the indorsement be such as to pass the i)roperty under the Act ; Burdick v. Seicell, supra. But a consignee who has sold the goods, but has not indorsed the bill of lading to the buyer, remains a consignee within the Act, so as to be liable under the bill of hiding; Fmvlcr v. Knoop, 4 Q. B. I). 299 ; and conversely an indorsee has a right to sue thereon, although he has sold tl)(! goods before taking i)roceedings ; Tlie Maratltou, 40 L. T. 1 (;:'.. S. '''> [novidcs that a bill of hiding in the hands of a LICKBARllOW V. MASON. 7M consignee or indorsee for value without notice shall be con- ''P^** "^ elusive evidence of shipment aaainst the master or other ^^ ^" ■ ' . , , . How far sig- person signing the same, notwithstandnig that such goods, nature of bill or some part thereof, may not have been shipped, provided ^ ,|' "^ that he maj^ exonerate himself in respect of such misrepre- sentation by showing that it was caused without any default on his part, and wholly by the fraud of the shipi)er, or holder, or some person under whom the holder claims. It has been held that this section does not estop an owner who has not personally signed the bill of lading ; Jessel v. Bath, L. E. 2 Ex. 267 ; M'Lean v. Fleming, L. K. 2 H. L. Sc. 128 ; Blanchet v. PowelVs Collieries, L. K. 9 Ex. 74 ; Brown v. Poicell Coal Co., L. R. 10 C. P. 562. See, as to the transfer of a bill of lading after the landing Negotiability of the cargo at the port of destination, Barbery. Meyerstein, ^^*!^^g|"'"^ L. R. 4 H. L. 317. A factor to whom goods were consigned stood at common Factor could law in a different position from a buyer with respect to his fore FactoV^" power to pass the property by an indorsement of the bill of Acts. lading. For, though he might bind his principal b^" a sale, he could not by a pledge, that not being within the usual scope of his authority ; Martini v. Coles, 1 M. & S. 140 ; Shifplei) V. Kijmer, Id. 484 ; Newsom v. Thornton, 6 East, 17 ; see Thackrah v. Fergusson, 25 W. R. 307. The law upon this subject was, however, altered by the Factors' Acts, 1823 to 1877, which are now repealed and replaced by the Factors' Act, 1889. The Factors' Act, 1889, deals with sales, pledges, or Factors' Act, other dispositions, of goods or of documents of title to yict'c 45^ goods, when made either by a mercantile agent who is in possession, with the owner's consent, of the goods or the documents (ss. 2 to 7) : or by a seller or buyer, who has retained, or obtained, possession of the goods or the documents (ss. 8, 9). A person is in possession of goods, or of documents of " Possession." title to goods, " where the goods or documents are in his S. 1 (2). actual custod}^ or are held by any other person subject to his control, or for him or on his behalf" (s. 1 (2) ). This provision corresponds with the terms used in the Factors' Act, 1842, s. 4. It has been held that documents pledged are subject to the pledgor's control, so far as to enable him to make a second pledge subject to the first ; Portalis v. Tetley, 5 Eq. 140. " Goods " include " wares and nier- " Goods." chandise " (s. 1 (3) ). They do not include stock certificates ; S- ^ (3). 7i-Z LTCKBAEEOW V. MASON. " Documents of title. " S. 1 (4). How trans- ferable. S. 11. Cases. "Mercantile agent." s. 1 0). S. (i. I)i.s|ifiMitions liy iiicniiilih agent H. S. 2(1). Freeman v. Appleyard, 32 L. J. Ex. 175 ; but they in- clude furniture; Lee v. Butler, (1893) 2 Q. B. 318. " Documents of title " include a bill of lading, dock warrant, warehouse-keeper's certificate, and warrant or order for the delivery of goods, and " any other document used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to autho- rize, either by indorsement or delivery, the possessor of the document to transfer or receive goods thereby repre- sented " (s. 1 (4) ). " The transfer of a document may be by indorsement, or, where the document is by custom or by its express terms transferable by deliver}^ or makes the goods deliverable to the bearer, then by deliver}^" (s. 11). The above definition of documents of title is similar to that contained in the Factors' Act, 1842, s. 4. A receipt for the price of goods is not a document of title ; Kemp v. Falk, 7 App. Cas. 573, 585 ; nor is a mere undertaking by a seller to deliver the goods to the buyer's order, such document not being " a known document amongst mer- chants; " Farmeloe v. Bain, 1 C. P. D. 445. It seems that the documents expressly mentioned in the definition clause must, in order to be documents of title, answer the descrip- tion with which the clause concludes. Thus a wharfinger's certificate is not a document of title, if it only certifies that a seller has the goods ready for shipment pursuant to his contract; Gunn v. Bolckow, 10 Ch. 491. "Warrants are things warranting a wharfinger, or somebody else who has possession of the goods, to deliver them ; " Id., per James, L.J. As to the trade custom relating to iron warrants, see Merchant Bank v. Phoenix Co., 5 Ch. D. 205 {ante, p. 542). A " mercantile agent " is " a mercantile agent having, in the customary course of his business as such agent, autho- rity' eitlter to sell goods, or to consign goods for the puri)()se of sale, or to buy goods, or to raise money on the security of goods" (s. 1 (1)). And "an agreement made with a mercantile agent through a clerk or other person authorized in the ordinary course of business to make contracts of sale or pledge on his behalf shall be deemed to be an agreement with the agent " (s. G). \Vh(!re a mercantile agent is, with the consent of the ownei', in possession of goods or documents of title to goods. Ills sale, pledge, or other disposition thereof, is as valid as if mfide with the owner's express authority, if the agent is acting " in the oi'diiiary course of business of a mercantile agent," LICKBAIIROW V. MASON. 743 a 11(1 if the person taking under the disposition acts in good faith, and without notice of the agent's want of authority (s. 2(1)). The earlier Acts were so construed as to limit their Cases under application to mercantile transactions by mercantile agents, ^^^^^^^ ''^^ like factors, entrusted, as such, with goods for the purpose of selling them. They were held not to apply to dealings by a wharfinger, warehouseman, packer, or carrier ; Monk V. Whittenhury , 2 B. & Ad. 484 ; or by a bailee entrusted with the custody of household furniture ; Wood v. Rowcliffe, 6 Hare, 191 ; or by a wine merchant's clerk, entrusted as such with delivery orders ; Lcnnh v. Attenhorough, 31 L. J. Q. B. 41 ; or by a mortgagor in possession, with power to sell on his own account; Joseph v. Wehh, C. & E. 262; or by a person entrusted with wool, merely as a warehouse- man, though, in addition to his business as warehouseman, he carried on an independent business as wool-broker ; Cole V. N.- W. Bank, L. R. 9 C. P. 470, 10 Id. 354. They were held, however, to apply to dealings by a factor employed to sell, to whom the goods had been sent for him to see whether they answered a description ; Baines v. Swainson, 4 B. & S. 270 ; and to dealings by a person whose employment on the particular occasion corresponded with that of a factor, although he did not carry on a factor's business ; Hay man V. Fleickcr, 13 C. B. N. S. 519 ; Trcmoille v. Christie, 69 L. T. 338. See also Johnson v. Credit Lyonnais, 2 C. P. D. 224, 3 Id. 32 ; Hellings v. Russell, 33 L. T. 380 ; City Bank V. Barrow, 5 App. Cas. 664, 678. S. 2 of the Act of 1889 is not, in terms, limited to cases where the mercantile agent is in possession as a mercantile agent, but it is submitted that the law as laid down in Cole V. N. ]V. Bank, supra, is not altered by this Act. The Act has been held to apply " only to persons of the class ordinarily' carrying on the business of mercantile agents," and therefore not to a man who, being employed at a salar}' by jewellers to hawk jewels at private houses, improperly pawned them ; Hastings v. Pearson, (1893) 1 Q. B. 62. The owner's consent to the agent's possession is to Owner's be presumed in the absence of evidence to the contrary q°°^®/^t" (s. 2 (4) ). The consent cannot be eft'ectuallv determined p„„^„„f- „ ,e \ ^ < ' •- itevocaiion oi without notice to the r)erson taking under a disposition consent, (s. 2 (2)). This latter provision was introduced in the ■ -"^ '• Factors' Act, 1877, s. 2, in consequence of the decision, in Fuentes v. Montis, L. R. 3 C. P. 268, 4 Id. 93, that the 744 LICKBARROW V. MASON. Consent to possession of documents. S. 2 (3). Possession thron"h fraud. Consideration necessary. S. 5. Consideration in ease of pledge ; substitution of oilier Koo(1h, etc. S. r,. earlier Acts did not affect a pledge made by a factor after the revocation of his authority to sell. The agent's possession of documents of title is to be deemed to be with the owner's consent where the agent has obtained possession of them " by reason of his being or having been," with the owner's consent, '"'in possession of the goods represented thereby, or of any other documents of title " thereto (s. 2 (3) ). This provision, reproduced from the Factors' Act, 1842, was rendered necessary by the decisions in PldU'q^s v. Huth, 6 M. & W. 605, and Hatfiidd V. PlnlUps, 9 Id. 647, 14 Id. 665, that a factor who, by reason of his being intrusted with a bill of lading, obtained possession of a dock warrant was not a person intrusted with the dock warrant within the Factors' Act, 1825. Under the earlier Acts it was held that, if the owner in fact intrusted an agent, as such, with possession of goods or documents, it was immaterial that he was induced to do so by fraud ; Shcfijard v. Union Bank, 7 H. & N. 661 ; Baines v. Sicainson, 32 L. J. Q. B. 281 ; but that possession obtained by fraud did not of itself constitute an " intrust- ment ; " Kingsfurd v. Merry, 1 H. & N. 503, 516 ; Hardmaa v. Booth, 1 H. & C. 803 ; see, on both points, Cole v. N. W. Bank, L. R. 10 C. P. 354, 373. There must be a consideration for such dispositions by a mercantile agent. The consideration necessary for their validity "may be either a payment in cash, or the delivery or transfer of other goods, or of a document of title to goods, or of a negotiable security, or any other valuable con- sideration " (s. 5). Under the Acts of 1825 (s. 2) and 1842 (ss. 1, 2, 4), the consideration required was payment by monej^ or negotiable securit}^ ; see Taylor v. Ki/nur, 3 B. & Ad. 320; Lcaroyd v. Robinson, 12 M. & W. 745; Thackrah v. Fergusson, 25 W. R. 307. Where the disposition is by way of pledge, and the con- sideration is the delivery or transfer of other goods, or of a document of title, or of a negotiable security, the pledgee acquires no right or interest in the pledged goods, greater than the value of the other goods, or the document, or security at the time of the delivery or transfer (s. 5) ; see the Act of 1842, s. 2, and Bonzi v. Stewart, 4 M. & Gr. 295, the decision which pointed out the necessity for that section. In Sheppard v. Union Bank, 7 H. & N. 661, it was held, upon the construction of that section, that the substitution need not be made by the original pledgor. Lie KB ARROW V. MASON. 745 Where the disi30sitioii is by way of pledge and as security Antecedent for an antecedent debt or liabiUty, the pledgee acquires no c, ^' further right than could have been enforced by the pledgor at the time of the pledge (s, 4) ; see Jetvan v. Wliiticorth, 2 Eq. 692; Macnee v. Gorst, 4 Eq. 315 ; and Kaltenhacli \ . Lewis, 10 App. Cas. 617 ; decisions upon s. 3 of the Act of 1825 and s. 3 of the Act of 1842. A " pledge " includes " any contract pledging, or giving a " Pled^'e." lien or security on, goods, whether in consideration of an '''• •^• original advance or of any further or continuing advance or of any pecuniary liability " (s. 1 (5) ). And " a pledge of the documents of title to goods shall be deemed to be a pledge of the goods" (s. 3). Under s. 7 of the Act, where the owner of goods has S. 7. fiiven possession of them to another iierson for the purpose Provisions a.s . . ,.,, ., to consignors ol consignment or sale, or has shipped them in another and con- person's name, and the consignee of the goods has not had signees. notice that such person is not their owner, the consignee has, in respect of advances made to or for the use of such person, the same lien on the goods as if such person were their owner, and can transfer such lien ; see Mildred v. Maspons, 8 App. Cas. 874, j)c?' Lord Blackburn. It was held that a vendor who had been left by the buyer Disposition in possession of documents of title to goods could not, j-einaiuiucf in under the earlier Factors' Acts, confer a good title ; Johnson possession. V. Credit Lyonnais, 3 C. P. D. 32. The law in this respect was altered by s. 3 of the Factors' Act, 1877. Now, by the factors' Act, •' . / 18S9. Act of 1889, " where a person, having sold goods, continues, s. 8. or is, in possession of the goods or of tbe documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or docu- ments of title under any sale, pledge, or other disposition thereof, or under any agreement for sale, pledge, or other disposition thereof, to any person receiving the same in good faith, and without any notice of the previous sale, shall have the same ejBTect as if the person making the delivery or transfer were expressl}' authorized by the owner of the goods to make the same " (s. 8). Section 25 (1) of the Sale of Goods Act, 1893, is to a similar effect. In NicJiolson V. Harper, (1895) 2 Cli. 415, a merchant, who had wine stored with a warehouseman, sold it to a bu3'er, and afterwards gave the warehouseman a lien thereon for advances made in good itdih. without notice of the sale ; there were no documents of title relating to the wine. North, J., held 746 LICKBARROW V. MASON. Disposition by buyer who is in possession. S. 9. that there had been no " deliveiy or transfer" to the ^Yare- houseman. In Jenkyns v. Ushorne, 7 M. & Gr. 678, confirmed by Van Casteel v. Booker, 2 Exch. 691, a bu3^er who had received a delivery order from the vendor was held not to be able to make a valid jDledge of the delivery order, under the earlier Factors' Acts, so as to defeat the right of stoppage in transitu. This was altered by the Act of 1877. And now, by s. 9 of the Act of 1889, " where a person, having bought or agreed to buy goods, obtains, with the consent of the seller, possession of the goods or the documents of title " thereto, their delivery or transfer by him, or by a mercantile agent acting for him, " under any sale, pledge, or other disposition thereof, or under any agreement for sale, pledge, or other disposition thereof, to any person receiving the same in good faith, and without notice of any lien or other right of the original seller in respect of the goods," has the same effect as a delivery or transfer by a mercantile agent under s. 2, see ante, p. 742. Section 25 (2) of the Sale of Goods Act, 1893, is to a similar effect. This section applies to cases where a person is in possession of goods under what is known as a "hire-purchase" agreement, if the agreement binds him to buy them; Lee v. Butler, (1893) 2 Q. B. 318 ; but not so, if it merel}" gives him an option of buying them which he has not exercised ; Hclhy v. Matthews, in the H. L., overruling (1894) 2 Q. B. 262. In Shenstone V. Hilton, (1894) 2 Q. B. 452, it was held that delivery to an auctioneer for the purpose of sale is a " delivery under an agreement for sale " within this section. A title acquired by a transfer or delivery under this section is not afi'ected by a conviction of the transferor for larceny of the goods ; Paijne v. Wilson, (1895) 1 Q. B. 653 (see 1895, W. N. p. 110). In Kitto V. Bilhie, 72 L. T. 266, Vaughan Williams, J., expressed an opinion that a delivery or transfer under an assignment for the benefit of creditors was not within this section. It is not necessary that there should be a memorandum of the contract of sale so as to satisfy the Stiitute of Frauds, if there be in fact a contract of sale ; Iliujill v. Masker, "l^i. Q. B. D. 364. MASTER i\ MILLER. TRINITY.— Z GEO. 3, K. B. 1- CAM. SCACC. [reported 4 T. R. 320 and 2 ii. dl. 140. (2 r. r. 399).] An unauthorised alteration of the date of a bill of exchange, after acceptance, whereby the payment would be accelerated, avoids the instrument; and no action can be afterwards brought upon it, even by an innocent holder for a valuable consideration («). The first count in this declaration was in the usual form, by the indorsees of a bill of exchange against the acceptor ; it stated that Fed and Co., on the 20th March, 1788, drew a bill for 974Z. lO.s. on the defendant, payable three months after date to Wilkinson and Cooke, who indorsed to the plaintiffs. The second count stated the bill to have been drawn on the 26th March. There were also four other counts : for money paid, laid out, and expended ; money lent and advanced ; money had and received ; and on an account stated. The defendant pleaded the general issue ; on the trial of which a special verdict was found. It stated that Peel and Co., on the 26th March, 1788, drew their Ijill on the defendant, payable three months after date to Wilkinson and Cooke, for 974/. 10s., which said bill of exchange, made by the said Peel and Co., as the same hath been altered, accepted, and written upon, as hereinafter mentioned, is now produced, and read in evidence to the said jurors, and is now expressed in the words and figures following; to icit, "June 23rd, 974L 10s., Manchester, March 20, 1788, three months after date pay to the order of Messrs. Wilkinson and Cooke, 974/. lO.s., received, as advised, Peel, Yates, and Co. To Mr. Cha. Miller, C. M. 23rd June, 1788." That Peel and Co. delivered the said bill to AYilkinson and Cooke, which the defendant afterwards, and before the alteration of the bill hereinafter mentioned, (a) But see now the Bills of Exchange Act, 1SS2, .s. 64, j^ost in notis, p. 780. 748 MASTER V. MILLER. accepted. That Wilkinson and Cooke afterwards indorsed the said bill to the plaintiffs for a valuable consideration before that time given and paid by them to Wilkinson and Cooke for the same. That the said bill of exchange, at the time of making thereof and at the time of the acceptance, and when it came to the hands of Wilkinson and Cooke, as aforesaid, bore date on the 26th day of March, 1788, the day of making the same ; and that after it so came to and whilst it remained in the hands of Wilkinson and Cooke, the said date of the said bill, without the authority or privity of defendant, was altered by some person or persons to the jurors aforesaid unknown, from the 26th day of March, 1788, to the 20th day of March, 1788. That the words " June 23rd," at the top of the bill, were there inserted to mark that it would become due and payable on the 23rd June next after the date ; and that the alteration hereinbefore mentioned, and the blot upon the date of the bill of exchange, now produced and read in evidence, were on the bill of exchange when it was carried to and came into the hands and possession of the plam- tiffs. That the bill of exchange was on the 23rd June, and also on the 28th June, 1788, presented to the defendant for payment; on each of which days respectively he refused to pay. The verdict also stated that the bill so produced to the jury and read in evidence was the same bill upon which the plaintiffs declared, Sec. This case was argued in Hilary Term last, by fJ^ood for the plaintiffs, and Miiujinj for the defendant ; and again on this day by CJumihrc for the plaintiffs, and Erskine for the defendant. For the plaintiffs it was contended that they were entitled, notwithstanding the alteration in the bill of exchange, to recover, according to the truth of the case, which is set forth in the second count of the declaration, namely, upon a bill dated the 26th March ; which the special verdict finds was in point of fact accepted by the defendant. More especially as it is clear that Ihe i)lamtiffs are holders for a valuable consideration, and had no concern whatever in the fraud that was meditated, supposing any such appeared. The only ground of objection which can l)e suggested is upon the rule of law relative to deeds, by which they are absohitely avoided, if altered even by a stranger in any material part, and upon a supposed analogy between those MASTER V. MILLER. 749 instruments and bills of exchange ; but upon investigating the grounds on which the rule stands as applied to deeds, it will be found altogether inapplicable to bills ; and if that be shown, the objection founded on the supposed analogy between them must fall with it. The general rule respecting deeds is laid down in PigoVs Case (b), where most of the authorities are collected; from thence it appears that, if a deed be altered in a material point, even by a stranger without the privity of the obligee, it is thereby avoided ; and if the alteration be made by the obligee, or with his privity, even in an immaterial part, it will also avoid the deed (c). Now that is confined merely to the case of deeds, and does not in the terms or principle of it apply to any other instruments not executed with the same solemnity. There are many forms requisite to the validity of a deed, which were originally of great importance to mark the solemnity and notoriety of the transaction ; and on that account the grantees always were, and still are, entitled to many privileges over the holders of other instruments. It was therefore reasonable enough that the party in whose possession it was lodged should, on account of its superior authenticity, be bound to preserve it entire with the strictest attention, and at the peril of losing the benefit of it in the case of any material alteration even by a stranger ; and that he is the better enabled to do from the nature of the instrument itself, which, not being of a negotiable nature, is not likely to meet with any mutilation, unless through the fraud or negligence of the owner ; whereas bills of exchange are negotiable instruments, and are perpetually liable to accidents in the course of changing hands, from the inadvertence of those by whom they are negotiated, without any possibility of their being discovered by innocent indorsees, who are ignorant of the form in which they were originally drawn or accepted ; and the present is a strong instance of that ; for the plaintiffs cannot be (b) 11 Co. 27. deed thereby becomes void. . . . So if (c) The second resolution in Bigot's the obligee himself alters the deed by any Case was that " when any deed is altered of the said ways, although it is in words in a point material, by the plaintiff him- not material, yet the deed is void : but self, or by any stranger without the if a stranger, without his privity, alters privity of the obligee, bo it by inter- the deed by any of the said ways, in any lineation, addition, rasing, or liy draw- point not material, it shall not avoid the ing of a pen through a line, or through deed ;" 11 Co. 27a. the midst of any material word, tlie 750 MASTER V. MILLER. said to be guilty of negligence in not inquiring how the blot came on the bill, which mere accident might have occasioned. That the same reasons, upon which the decisions of the courts upon deeds have been grounded, will not support such judgments upon bills, will best appear by referring to the authorities themselves. When a deed is pleaded, there must be a ijrofert in curiam (d), unless, as in Head v. Brookman {e), it be lost or destroyed by accident, which must however be stated in the pleadings. The reason of which is, that anciently the deed was actually brought into court for the purpose of inspection ; and if, as is said in 10 Co. 92 b, the judges found that it had been rased or interlined in any material part, they adjudged it to be void. Now, as that was the reason why a deed was rejuired to be pleaded with a j^rofert, and as it never was necessary to make a ijvofert of a bill of exchange in j)leading, it furnishes a strong argument that the reason applied solely to the case of deeds. So deeds, in which were erasures, were held void, because they appeared on the face of them to be suspicious, 13 Vin. Abr. tit. Faits, 37, 38; Bro. Abr. Faits, pi. 11, referring to 44 Edw. 3, c. 42. Nor could the supposition of fraud have been the ground on which that rule was founded with respect to deeds; for in Moore, 35, pi. 116, a deed which had been rased was held void, although the party himself who made it had made the erasure ; which was permitting a party to avail himself of his own fraud : but it is impossible to contend that the rule can be carried to the same extent as to bills ; nor is it denied but that, if the blot here had been made ])y the acceptor himself, he would still have been bound. In Keilw. 162, it is said that if A. be bound to B. in 20L and B. rase out 10/. all the bond is void, although it is for the advantage of the obligor; and even where an alteration in a deed was made by the consent of both the parties, still it was held to avoid it, 2 Kol. Abr. 29, letter U, pi. 5. [Lord Kenyon observed that there had been decisions to the contrary since.] Fraud could not be the ]iiiiici])l(! on wliicli those cases were determined : whereas it is the only principle on which the rule contended for can be held to extend to bills of exchange, but which is rebutted in the (d) Not HO now ; C. L. P. Ad:, 1852, (c) 3 T. E. 151. a. 55 ; S. L. 11. & C. P. Act, 1883, s. 6. MASTER V. MILLEU. 751 present case Ly the facts found in the special verdict. Accord- ing to the same strictness, where a mere mistake was corrected in a deed, and not known by whom, it was held to avoid it, 2i Eol. Abr. 29, pi. G ; and it does not abate the force of the argument that the law is relaxed in these respects, even as to deeds, for the question still remains, whether at any time bills of ■exchange were construed with the same rigour as deeds. The principle upon which all these cases relative to deeds were founded was, that nothing could work any alteration in a deed, except another deed of equal authenticity ; and as the party who had possession of the deed was bound to keep it securely, it might well be presumed that any material alteration even by a stranger was with his connivance, or at least through his culpable neglect. In many of the cases upon the alteration of deeds, the form of the issue has weighed with the court ; as in 1 Kol. Eep. 40, which is also cited in Pigofs Case, 11 Co. 27, and Michael v. Scockicith, Cro, Eliz. 120, in both which cases the alteration was after plea pleaded ; and on that ground the court held it was still to be considered as the deed of the party on iion est factum. Now the form of the issue in actions u^wn deeds and those upon bills is very different ; in the one case, the issue simply is, whether it is the deed of the party, which goes to the time of the plea pleaded, as appears from the case before cited, and from 5 Co. 119 b, and Dy. 59 ; but here the issue is, tchether the defendant promised, at the time of the aceeptaiice, to pay the contents. The form of the issue is upon his promise, arising by implication of law from the act of acceptance, which is found as a fact by the special verdict agreeable to the bill declared on in the second count : and in no instance, where an agreement is proved merely as evidence of a promise, is the part}' precluded from showing the truth of the case. Not onlv therefore the forms of pleading are different in the two cases, but the decisions which have been made upon deeds, from whence the rule contended for as to erasures and alterations is extracted, are altogether inapplicable to bills. The reasons for such rigorous strictness in the one case do not exist in the other. On the contrary, all the cases upon bills have proceeded upon the most liberal and equitable principles with respect to innocent holders for a valuable consideration. The case of Minet v. 752 MASTER V. MILLER. Gibson (/) goes much farther than the present ; for there this court, and afterwards the House of Lords, held that it was com- petent to mquire mto circumstances extraneous to the bill, in order to arrive at the truth of the transaction between the parties, although such circumstances operated to establish a different contract from that which appeared upon the face of the bill itself ; whereas the evidence given in this case, and the facts found by the special verdict, are in order to show what the bill really was ; which it is competent for these parties to do against whom no fraud can be imputed, if any exist. If the blot had fallen on the paper by mere accident, it cannot be pretended that it would have avoided the bill ; non constat upon this finding that it did not so happen. Even if felony were committed by a third person through whose hands the bill passed, although that party could not recover upon it himself, jet his crime shall not affect an innocent party to whom the bill is indorsed or delivered for a valu- al)le consideration. In Miller v. Eacc (g), where a bank- note had been stolen, and afterwards passed bond fide to the plaintiff, it was held that he might recover it in trover against the person who had stopped it for the real owner. And the same point was held in Peacock v. PJiodes {]i), where the bill was payable to order. Again, in Price v. Neal (?) it was held that an acceptor, who had paid a forged bill to an innocent indorsee, could not recover back the money from him. Now, if it be no answer to an action upon a bill against the acceptor to show that it was a forgery in its original making by a third person's having feigned the handwriting of the drawer, still less ought any subsequent attempt at forgery, even if that had been found which is not, to weigh against an innocent holder. But it would have been impossible to have recovered in any of these cases if the deed had been forged in any respect, even by strangers to it ; which shows that these several instruments cannot be governed l>.y the same rules. And so little have the forms of Ijills of exchange and notes been observed, when put in opposition to the truth of the transaction, that in lliissel v. Langstaffe (A) (/) .'i T. K. 1^1, in I!, i;., ;iu initio, or goes in discharge of it, may be shown as much in the one caso as in tlie other. Upon non est factum the (o) 11 Co. 27. MASTER V. MILLER. 755 question is, whether in law the deed produced in evidence be the deed of the party ; so on non assumpsit the question is, whether the bill given in evidence be in point of law the l)ill accepted by the defendant, because the promise only arises by implication of law upon proof of the acceptance of the identical bill accepted, and given in evidence. Now, neither of the counts in the declaration was proved by the facts found. For in the first count the bill is dated the 20th March ; but as there is no evidence of the defendant's having accepted such a bill, of course the plaintiffs are not entitled to recover on that count. Neither can they recover on the second, because though it is found that he accepted a bill dated the 26th March, as there stated, yet inasmuch as the bill stated to have been produced in evidence to the jury is dated the 20th, of course the evidence did not support the count. With respect to the cases cited of bills of exchange having been always construed by the most liberal principles, and particulaVly Minet v. Gibson, the same answer may be given to all of them, which is, that, so far from the original contracts having been attempted to be altered, all those actions were brought in order to enforce the observance of them in their genuine meaning against the party who, in the latter case j)articularly, endeavoured by a trick to evade the contract : whereas here the contract has been substantially altered by the parties who endeavour to enforce it ; or at least by those whom they represent, and from whom they derive title. Then the case in Molloy, of Price v. Shute, is chiefly relied on by the plaintiffs ; to which several answers may be given. First, the authenticity of it may be questioned ; for it is not to be found in any reports, although there are several contemporaneous reporters of that period. In the next place, the bill, as originally drawn, was not altered upon the face of it ; and therefore, as against all other persons at least than the acceptor, it might still be enforced. But principally it does not appear but that the action was brought against the drawer, who, as the acceptor had not accepted it according to the tenor of the bill, was clearly liable ; as the payee was not bound to abide by the enlarged acceptance, but might consider it as no acceptance at all. Then, if this bill be void for this fraud, no evidence could be given to prove its contents, as in the case of a deed lost ; because in that there is 48 2 756 MASTER V. MILLER. no fraud. Bat, even if any other evidence might have been given, it is sufficient to say that in this case there was none. And as to the common counts, if the general principle of law contended for applies to bills of exchange, it will prevent the plaintiffs from recovering in any other sliape. Besides which, it is not stated that the defendant has received any consideration ; upon which ground Tatlock v. Harris was decided. Ill reply it was urged, that the issue was not whether the defendant had accepted this bill in the state in which it was shown to the jury, but whether he had promised to pay, in consequence of having accepted a bill dated the 26th March, drawn by, &c. ; and those facts being found, the promise necessarily arises. It is said that the policy of the law will extend the same rule to the avoidance of bills of exchange which have been altered as to deeds ; because there is even greater reason to guard against fraudulent alterations in the former than in the latter case. To which it may be answered that the foundation of the rule fails in this case ; for no fraud is found, and none can be presumed : and it is admitted that, if the blot had been made by accident, it would not have avoided the bill ; and nothing is stated to show that it was not done by accident. Besides, the policy of the law is equally urgent in favour of the plaintiffs, it being equally politic to compel a performance of honest engagements. Here the defendant is only required to do that which in fact and in law he has promised to do. And if he be not liable on this contract, he will be protected in withholding payment of that money which he has received, and which by the nature of his engagement he undertook to repay. No answer has l^een given to the case cited from Molloy : for though the case is not reported in any other book, it bears every mark of authenticity, by noting the names of the parties, the court in which it was determined, and the time of the decision : and it has been adopted by subsequent writers on the same subject. Again, the alteration there was full as important as this, for it equally tended to accelerate the day of payment ; and, lastly, it is not denied but that the action might have been maintained on tb(; bill against any other person than the acceptor ; which is an admission tlmt the policy of the law does not attach so as to MASTER V. MILLEIL 757 avoid such instruments upon any alteration, for otherwise it would have avoided the bill against all parties. Lord Kenyon, C.J. — The question is not whether or not another action may not be framed to give the plaintiffs some remedy, but whether this action can be sustained Ijj^ these parties on this instrument — for the instrument is the only means by which they can derive a right of action. The right of action w^hich subsisted in favour of Wilkinson and Cooke could not be transferred to the plaintiffs in any other mode than this, inasmuch as a chose in action is not assignable at law. No case, it is true, has been cited either on one side or the other, except that in Molloy, of which I shall take notice hereafter, that decides the question before us in the identical case of a bill of exchange. But cases and principles have been cited at the bar, which, in point of law, as well as policy, ought to be applied to this case.' That the alteration in this instrument would have avoided it, if it had been a deed, no person can doubt. And why, in point of policy, would it have had that effect in a deed ? Because no man shall he liermhted to take the chance of committing a fraud, icithout running any risk of losing by the event wJien it is detected. At the time when the cases cited, of deeds, were determined, forgery was only a misdemeanour : now the punish- ment of the law might well have been considered as too little, unless the deed also were avoided ; and therefore the penalty for committing such an offence was compounded of those two circumstances, the punishment for the misdemeanour, and the avoidance of the deed. And though the punishment has been since increased, the principle still remains the same. I lay out of my consideration all the cases where the alteration was made by accident : for here it is stated that this alteration was made while the bill w^as in the possession of Wilkinson and Cooke, who were then entitled to the amount of it : and from whom the plaintiffs derive title ; and it was for their advantage (whether more or less is immaterial here) to accelerate the day of payment, which in this commercial country is of the utmost importance. The cases cited, which were all of deeds, were decisions which applied to and embraced the simplicity of all the transactions at that time ; for at that time almost all written engagements were by deed onl}^ Therefore those decisions, which were indeed 758 MASTER V. MILLEE. (Lord Kexyon.) confined to deeds, applied to the then state of affairs : but they established this principle, that all written instruments which were altered or erased should be thereby avoided. Then let us see whether the policy of the law, and some later cases, do not extend this doctrine farther than to the case of deeds. It is of the greatest importance that these instruments, which are circulated throughout Europe, should be kept with the utmost purity, and that the sanctions to preserve them from fraud should not be lessened. It was doubted so lately as in the reign of George the First, in WarcVs Case (j)), whether forgery could be committed in any instrument less than a deed, or other instrument of the like authentic nature ; and it might equally have been decided there that, as none of the preceding deter- mmations extended to that case, the policy of the law should not be extended to it. But it was there held that the principle extended to other instruments as well as to deeds, and that the law went as far as the policy. It is on the same reasoning that I have formed my opinion in the present case. The case cited from Molloy, indeed, at first made a different impression on my mind : but, on looking over it with great attention, I thmk it is not applicable to this case. No alteration was there made on the bill itself ; but the party to whom it was directed accepted it as payable at a different time, and afterwards the payee struck out the enlarged acceptance ; and, on the acceptor refusing to pay, it is said that an action was maintained on the bill. But it does not say against whom the action was brought ; and it could not have been brought against the acceptor, whose accept- ance was struck out by the party himself who brought the action. Taking that casein the words of it, "that the alterations did not destroy the bill," it does not affect this case : not an iota of the bill itself was altered ; but, on the person to whom the bill was directed refusing to accept the bill as it was originally drawn, the holder resorted to the drawer. Then, it was con- tended that no fraud was intended in this case ; at least that none is found ; l)ut I think that, if it had been done by accident, that sliould have been found, to excuse the party, as in one of the cases whore the seal of the deed was torn off by an infant (pp). (;y) 2 Str. 717, and 2 lA. Uayiii. MCI. {p2>) Arrjoll v. Cheney, Palm. 102. MASTER V. MILLER. 759 With respect to the argument drawn from the form of the plea, it goes the length of saying, that a defendant is liable, on nori assumpsit, if at any time he has made a promise, notwithstanding a subsequent payment : but the question is, whether or not the defendant promised in the form stated in the declaration ; and the substance of that plea is, that according to that form he is not bound by law to pay. On the whole, therefore, I am of opinion that this falsification of the instrument has avoided it ; and that, whatever other remedy the plaintiffs may have, the}^ cannot recover on this bill of exchange. AsHHURST, J, — It seems admitted that, if this had been a deed, the alteration would have vitiated it. Now, I cannot see any reason why the principle on which a deed would have been avoided should not extend to the case of a bill of exchange. All written contracts, whether by deed or not, are intended to be standing, evidence against the parties entering into them. There is no magic in parchment or in wax : and a bill of exchange, though not a deed, is evidence of a contract as much as a deed ; and the principle to be extracted from the cases cited is, that any alteration avoids the contract. If indeed the plaintiffs, who are innocent holders of this bill, have been defrauded of their money, they may recover it back in another form of action : but I think they cannot recover upon this instrument, which I consider to be a nullity. It is found by the verdict that the alteration was made while the bill was in possession of Wilkin- son and Cooke ; and it certainly was for their advantage, because it accelerated the day of payment. Now, upon these facts, the jury would perhaps have been warranted in finding that the alteration was made by them : at all events, it was their business to preserve the bill without any alteration. If Wilkinson and Cooke had brought this action, they clearly could not have recovered, because they must suffer for any alteration of the bill while it was in their custody : then, if the objection would have j)revailed in an action brought by them, it must also hold with regard to the plaintiff's who derive title under them. For when- ever a party takes a bill under such suspicious circumstances appearing on the face of it, it is his duty to inquire how the alteration was made ; he takes it at his risk, and must take it subject to the same objection as lay against the party from 760 MASTER V. MILLER. (ASHHURST, J.) whom he received it. Upon the whole, there seems to he no difference between deeds and hills of exchange in this respect in favour of the latter : but, on the contrary, if there be any difference, the objection ought to prevail with greater force in the latter than in the former ; for it is more particularly neces- sary that bills of exchange, which are daily circulated from hand to hand, should be preserved with greater purity than deeds which do not pass in circulation. It would be extremely dangerous to permit the party to recover on a bill as it was originally drawn, after an attempt to commit a fraud, by accele- rating the time of payment. For these reasons, therefore, I concur in opinion with my Lord. BuLLER, J. — In a case circumstanced as the present is, m which it is apparent, as found, and has been proved beyond all doubt, that the bill of exchange in question was given for a full and valuable consideration, that the plaintiffs are honest and innocent holders of it, and that the defendant has the amount of the bill in his hands, it is astonishing to me that a jury of merchants should hesitate a moment in finding a verdict generally for the plaintiffs, more especially as I understand it was left to them by the Chief Justice to read the bill as it undoubtedly was drawn, and by that means to put an end to the question at once. It was rightly so left to the jury by his Lordship ; for that was the furtherance of the justice of the case, and it tended to prevent expense, litigation, and delay, which are death to trade. That the defendant cannot be suffered to pocket the money for which this bill was drawn, or to enable the drawer to do so, but that sooner or later, provided a bank- ruptcy do not intervene, it must be paid, I presume no man will doubt. The drawer has received the value, the plaintiffs have paid it, and the defendant has it in his hands. On this short statement, every one who hears me must anticipate me in saying that the defendant must pay it. Nay, if actual forgery had Ijoen committed, the defendant could not be permitted to retain the money : he must not get 900L by the crime of another ; but, in such a case, I agree it would be difficult to sustain the present or any action for the money till something further liad liappcncd than has yet l)een done. The law, pro- MASTER V. MILLER. 761 ceeding on principles of public policy, has wisely said (q) that, where a case amounts to felony, you shall not recover against the felon in a civil action ; but that rule does not appear l)y any printed authority to have been extended bej'ond actions of trespass or tort, in which it is said that the trespass is merged in the felony. That is a rule of law calculated to bring offenders to justice. But whether that rule extend to any case after the offender is brought to justice, or whether at any time it may be resorted to in an action between persons guilty of no crime, are questions upon which I have formed no opinion, because this case does not require it. Upon this special verdict there is no foundation for saying that any one has been guilty of forgery, nor even of a fraud, as it strikes my mind. Fraud or felony is not to be presumed ; and, unless it be found by the jury, the court cannot imply it. Minet v. Gibson is a most decisive authority for that proposition, if any be wanted, and I do not think there is any foundation for the distinction attempted to be taken between that case and the present. It has been con- tended that the party there recovered, because the nature of the obligation was not altered : but the determination did not proceed entirely on that ground, but on this, that, according to the true intent and meaning of the parties, the bill was intended to be made payable to bearer : so here the plaintiffs do not attempt to enforce the contract according to the terms of it, but according to that form by which the defendant originally con- sented to be bound, as stated in the second count. The special verdict finds that Peel and Co., on the 26th March, 1788, drew a bill of exchange on the defendant for 974Z. 10s., payable to Wilkinson and Co. : which bill, as the same has been altered, accepted, and written upon, is set out in luec verba. Upon the facsimile copy of the bill set out in the verdict, there appears to be a blot over the date : and the jury have thought fit to read it, as it now stands, the 20th. I must confess I should never have read it so ; for seeing that there was some- thmg above the figure 0, that is the last reading which I should have given to it. I should have said on the face of the bill this must have been either a 6 or an 8 ; it could not have been 8, because the is as high as the 2, and therefore it must be a 6 : (q) See, however, ante, pp. 278, 279. 762 MASTER V. MILLER. (BuLLEK, J.) but the jury have found no difficulty in saying it was a 6 ; and I will examine presently whether there be any objection to let it remain as a 6. The verdict further finds that the defendant, before any alteration of the bill, accepted it ; and Wilkinson and Co. indorsed it to the plaintiffs, who paid a valuable considera- tion for it. Then it is stated that, whilst the bill was in the hands of Wilkinson and Cooke, the date, without the authority of the defendant, was altered by persons unknown from the 26th to the 20th of March. They further find that the words " 23rd of June " were inserted at the top of the bill, to mark that the bill would then become due ; and that the alteration and the blot were on the bill when it was delivered to the plaintiffs. This is the full substance of the special verdict ; and there is neither forgery, felony, nor fraud, found or supposed by the jury ; we therefore can neither intend nor infer it. The verdict amounts onl}^ to saying there is a blot on the bill, but how it came there we don't know ; and we beg to ask the court whether the circum- stance of a blot being on the bill which we cannot account for makes the bill void. Provided I have accurately stated the question, surely such a verdict is without precedent. Suppose a child had torn out a bit of the bill on which the top of the 6 is written, is the holder of the bill to lose his 974L ? or is the defen- dant to get 974/. by such an accident ? But to decide whether I have accurately stated the question m the cause, it is necessary to examine the words of the special verdict minutely, and by degrees. The jury have said that the bill was altered. The word " altered " may raise a suspicion and alarm in our minds ; but let not our judgment be run away with by a word, without examining the true sense and meaning of it as it is used in the place where we find it. How was it altered, what was the altera- tion, when was it made, and for what purpose ? The jury have said it was altered by means of putting a blot over the date : but by whom or when that was done we don't know, further than that it was done whilst the bill was in the possession of Wilkin- son and Cooke : l)ut we do not find that it was done for any bad purpose, or with any improper view whatever. Upon this find- ing, the court arc bound to say it was done innocently. But the jury have also said that " June 23rd " was inserted at the top of MASTER V. MILLER. 76S the bill to mark when the bill would become due. When and by whom was that done ? The jury have not said one word upon the subject. Was that done even during any part of the time whilst the bill was in the possession of Wilkinson and Cooke ? No. It is consistent with the finding, that the plaintiffs, who are found to be bond fide holders of the bill, upon reading the date to be the 20th, and calculating the time which it had to run from that date, put down " June 23rd " with the most perfect inno- cence. If the bill had been originally dated on the 20th, the 23rd June would have been the true time of payment. But admitting that a wrong date had been put down, as denoting the time of payment, is there any case or authority which says that that circumstance shall render the bill void '? Everj^ bill which has been negotiated within the memory of man is marked by some holder or another with the day when it will become or is suppose<,l to become due. That in some sense of the word is an alteration ; for it makes an addition to the bill which was not there when it was drawn or accepted. But was it done fraudu- lently ? The answer is — It was not, and therefore it is of no avail. So here the jur}^ have not said it was done fraudulently, and therefore it affords no objection. When the jury have stated what the alteration is, and how it was made, namely, by making a blot, and having fixed no smister or improper motive for so doing, it is the same as if they had said only " here is a blot on the bill." Suppose the jury had said in a few words that this bill was drawn, indorsed, and accepted, by the defendant, as the plaintiffs allege, but here is a blot upon it which makes the date look like the 20th instead of the 26th. The true answer would have been — Blot out the blot by your own understanding and conviction, and pronounce your verdict according to the truth of the case. It was nobly said in another place, (I heard it with pleasure, and thought it becoming the dignity of the person who pronounced it, and the place in which it was pronounced (r) ), " That the law is best applied when it is subservient to the honesty of the case. And if there be any rule of law which says you cannot recover on any instrument but according to the terms of it, forlorn would be the case of plamtifls. By the temperate rules (r) The quotations which follow seem in the H. L., see 1 IL Bl. 569, 585, 589. to be reminiscences of Gibson v. Minct 764 MASTER V. MILLER. (BULLER, J.) of law we must square our conduct." The honesty of the plain- tiffs' case has been questioned by no one ; and therefore I should imao-ine the wishes of us all would have been in favour of their claim, provided we are not bound down by some stubborn rule of law to decide against them. Here again I must beg leave to resort to what was forcibly said in another place, upon a similar subject, and which I shall do as nearly in the words which passed at the time as I can : because they carried conviction to my mind ; because they contain my exact sentiments, and because they are more emphatical than any which I could substitute in the place of them. " The question (it was said) is whether there be any rule of law so reluctant that it will not recede from words to enforce the intention of the parties. I believe there is no such rule. For half a century there have been various cases which have left the question of forgery untouched. If a bill be forged, the acceptor is bound." Speaking of the case of Stone v. Free- land (s), it was said, " if any one say that case is not law, let him show why it is not so. Judges can only look to former decisions. This has been a rule in the commercial world above 20 years." This reasoning seems to me to be sound and decisive, if it apply to the present case ; and to prove that it does appl}^ I need only quote the case, mentioned at the bar, of Price v. SJwte, reported in Beawes's Lex Mercat., tit. Bill of Exchange, pi. 222, and 2 Molloy, 109. There a bill was payable 1st January, and the person to whom it was directed accepted it to pay on the 1st of March, with which the servant returned to his master, who, per- ceiving this enlarged acceptance, struck out the 1st of March and put in the 1st of January, and at that time sent the bill for pay- ment, which the acceptor refused ; whereupon the possessor struck out the 1st of January and inserted the 1st of March again. In an action brought on this bill, the question was whether these alterations did not destroy the bill ; and ruled by Lord Chief Justice Peraberton, that they did not. Now, on reading this case, I cannot consider it in any other light than as an action brought against the acceptor ; for it only states what passed between those parties. Here then is a rule wliich has prevailed in the commercial world for 110 years : it stands uncontradicted (.v) 1 H. 151. 31(5, 11. MASTER V. MILLER. 705 and imimpeachecl : it was decided by great authority ; and, as I take it, on deliberation. For when it is said to have been in B. K., that must either have been in this court, or on a case saved by Chief Justice Pemberton for his own opinion : which was a common way of proceeding in those daj's. In that case the term " alteration " is used, and therefore we need not be frightened or alarmed at that word. The effect of the alteration was to accelerate the payment ; so it is here. But in one respect that case goes beyond the present ; for there the alteration was made by the plaintiff himself ; here it was not. It is true, in that case, when the plaintiff found he could not receive the money on the 1st of January, he altered it back to the 1st of March ; but if the first alteration vitiated the bill, no subsequent alteration could set it up against the acceptor without his con- sent. Here the plaintiffs have not re-altered the bill ; but they have acted a more honest part ; they have left the bill as it was to speak' for itself ; but they have treated it as a bill of the 26th of March ; they have proved that it was a bill of the 26th of March ; they demanded payment according to that date ; and the jury have found all these facts to be true. And it is material to consider what was the issue joined between the parties ; for there is a great deal of difference between the plea of non est factum and the present : here the question is, whether the drawer made such a bill, and whether the defendant accepted it ; and this is found by the jury. Then the case of Price v. Skute, in sense and substance, is a direct authority in point with the pre- sent ; though it vary in a minute and immaterial circumstance. The plaintiffs, in treating the bill and making a demand as they have done, seemed to have followed the sober advice and directions given by Beawes in pi. 190; where he says, "He that is possessor of a bill which only says ' pay,' without mentioning the time when, or that is without a date, or not clearly and legibly written, payable some time after date, &c., so that the certain precise time of payment cannot be calculated or known, must be very circumspect, and demand the money whenever there is any probable appearance of the time being completed that was intended for its payment ; or that he can demonstrate any circumstance that may determine it, or make it likely when it shall be paid." It is impossible that this writer could have 766 MASTER V. MILLER. (BULLER, J.) supposed that the bill was rendered void by any blot, obliteration, or erasure : on the contrary, he tells you that it must be demanded in time, and that you may make out by circumstances or other evidence when it was, or was likely to be, payable. That has been made out by evidence in the present case. Upon this head I shall only add one authority more, which is Carth. 460, where a bill was accepted after a day of payment was elapsed. It was objected that it was impossible in such a case for the defendant to pay according to the tenor of the bill, and therefore the declaration was bad ; but the court held it good, and said the effect of the bill was the payment of the money, and not the day of payment. So here the defendant having accepted this bill, whatever may be the construction as to the date, must pay the money. I hold that in this case there is no fraud either express or implied ; and that, as the plaintiffs have proved that they gave a valuable consideration for the bill, and that it was indorsed to them by those through whose hands it passed, their case is open to no objection whatever. But I will suppose for a moment, though the case do not warrant it, that Wilkinson and Cooke did mean a fraud ; still I am of opinion that would not affect the case between the plaintiffs and the defendant. It is a common saying in our IsiW-hooks, thojt fraud vitiates evej-ijtJiing. I do not quarrel with the phrase, or mean in the smallest degree to impeach the various cases which have been founded on the proof of fraud. But still we must recollect that the principle which I have mentioned is always applied ad hominem. He who is guilty of a fraud shall never be permitted to avail himself of it ; and if a contract founded in fraud be questioned between the parties to that contract, I agree, that, as against the person who has committed the fraud, and who endeavours to avail himself of it, the contract shall be considered as null and void. But there is no case in which a fraud intended by one man shall overturn a fair and bond fide contract between two others. Even as Ijetwcen the parties themselves we must not forget the figurative language of Lord Chief Justice Wilmot, who said that "the statute law is like a tyrant ; where he comes he makes all void ; ]>\\i the common law is like a nursing father, and makes void only that part where tlic fault is, and preserves the rest;" MASTEll V. MILLEK. 7G7 2 Wils. 351 (t). If an alteration be made to effect a fraud, the alteration shall be laid out of the question ; but still the contract shall exist to its original and honest purpose, and shall be carried into execution as if the fraud had never existed. A case somewhat similar to this is to be found in the book which I have before quoted, and which, though not a binding legal authority, 3'et, where its propositions are founded on practice and good sense, is deserving of some attention. Beawes, tit. Bill of Exchange, pi. 132, saj-s : "Where the possessor of a bill payable to his order fails, and to defraud his creditors indorses it to another, who negotiates it, and effectually receives the value, indorsing it again to a third, &c., and though the creditors, having discovered the fraud, oppose it, yet the acceptant must pay it to him who comes to receive it, on proof that he paid the real value for it." But it has been con- tended that there is an analogy between bills of exchange and deeds, and that in the case of deeds any erasure or alteration W'ill avoid the deed. In answer to this, first, I deny the analogy between bills of exchange and deeds, and there is no authority to support it. In the case of deeds, there must be a profert (u), and, as we learn from 10 Co. 92 b., in ancient times the judges pro- nounced upon view of the deed, though Lord Coke says that practice was afterwards altered. But there never is a profert of fi bill of exchange; the judges cannot determine on a view of that, but it must be left to a jury to decide upon the whole of the evidence, according to the truth of the case. Again, in the case of joint and several bonds the objection was founded on its being a substantial injury to the defendant ; for if it were considered as a sole bond, the defendant would be answerable for the whole debt ; but if it were a joint bond, he would be liable to only half or other proportionable part of it. So far in those days did the court look into the equity of the case. But the blot on this bill is no injury to the defendant ; he is not liable to pay till the bill became due, computing the time from the original date ; then he must pay it : he alone is liable ; and he never can be charged a second time on the bill. Secondly, it is not universally true that a deed is destroyed by"an^alteration, or by tearing off the [t) Collins V. Blantcrn, see ante, (u) By the C. L. P. Act, 1852, s. 55, p. 362. it was made iinnecessary to make profert. 768 MASTER V. MILLER. (BULLEK, J.) seal. In Palm. 403, a deed which had erasures in it, and from which the seal was torn, was held good, it appearing that the seal was torn off by a little boy. So in any case where the seal is torn off by accident after plea pleaded, as appears by the cases quoted by the plaintiff's counsel. And in these days, I think, even if the seal were torn off' before the action brought, there would be no difficulty in framing a declaration, which would obviate every doubt upon that point, by stating the truth of the case. The difficulty which arose in the old cases depended very much on the technical forms of pleading applicable to deeds alone. The plaintiff' made o^profert of the deed under seal, which he still must do, unless he can allege a sufficient ground for excusing it ; when that is done, the deed or the profert must agree with that stated in the declaration, or the plaintiff fails. But a profert of a deed without a seal will not support the allegation of a deed with a seal. For these reasons I am of opinion that the plaintiffs are entitled to judgment on the second count, which is drawn upon the bill, stating it to bear date the 26th March. But, supposing there could be any doubt on this part of the ease, I am also of opinion that the plaintiff's are entitled to their judgment on either of the two counts for money paid, or for money had and received. Here it is material to recall to our minds the facts found by the verdict. The bill produced to the jury was drawn for value, and was accepted by the defendant. He is not found to have no effects of the drawers in his hands ; and his accepting the bill imports, and is at the least prima facie evidence, that he had : and on this verdict he must be taken to have the amount in his hands. In 3 Burr. 1675, Aston, J., said, it is an admission of eff'ects. By his acceptance he gave faith to the bill ; and the plaintiff's, giving credit to that fact, have actually paid the value of the bill on receiving it. On this case the money paid by the plaintiff's is money paid for the use of the defendant : for the money was advanced on the credit of the dcjfendant, and in consequence of his undertaking to pay the l)ill. Again, the money in the defendant's hands is so much money received by him for the use of the plaintiff's, who were holders of the bill when it became due. The defendant has got MASTER V. MILLEE. 7*3 'J that money in his pocket, which in justice and conscience the plaintiffs ought to have, and therefore they are entitled to recover it in an action for money had and received. In answer to this, it was in the last term suggested for con- sideration, whether this bill after the alteration were not a chose in action, which could not be assigned. It is laid down in our old books, that for avoiding maintenance a chose in action cannot be assigned, or granted over to another ; Co. Litt. 214 a., 266 a.; 2 Eoll. Abr. 45, 1. 40 (r). The good sense of that rule seems to me to be very questionable ; and in early as well as modern times it has been so explained away, that it remains at most only an objection to the form of the action in any case (x). In 2 Ro.l. Abr. 45 & 46, it is admitted that an obligation or other deed may be granted, so that the writing passes : but it is said that the grantee cannot sue for it in his own name. If a third per- son be permitted to acquire the interest in a thing, whether he is to bring the action in his own name or in the name of the grantor does not seem to me to affect the question of main- tenance. It is curio as, and not altogether useless, to see how the doctrine of maintenance has from time to time been received in Westminster-hall. At one time, not only he who laid out money to assist another in his cause, but he that by his friend- ship or interest saved him an expense which he would otherwise be put to, was held guilty of maintenance (//). Bro. tit. Main- tenance, 7, 14, 17, &c. Nay, if he officiously gave evidence, it was maintenance ; so that he must have had a suhpoina, or sup- press the truth. That such doctrine, repugnant to every honest feeling of the liuman heart, should be soon laid aside must be expected. Accordingly a variety of exceptions were soon made ; and, amongst others, it was held that, if a person has any interest in the thing in dispute, though on contingency only, he may lawfully maintain an action on it; 2 Roll. Aljr. 115 ; but in the {v) See a curious passage in Termes or other legal chose in action, of which de la Ley, tit. Chose in Action. express notice in writing has been given {x) Tlxe doctrine that there cannot be to the debtor, is eliectual in law to trans- an assignment of a debt has been long ier the legal right thereto and all the ago exploded ; see Noy's Maxims, p. 72 ; remedies therefor. and the judgment of Willes, J., in [y) See ^jcr Lord Abinger in i^iH(?o»i v. Balfour v. The Sea, Fire, and Life Ass. Parker, 11 M. & \Y. 675, 682 ; 4 Ken. Co., 3 C. B. N. S. 300, 308. By the Comm. 10th ed., 31, note; WiU'iamson Judicature Act, 1873, s. 25, subs. 6, an v. Henley, 6 Bing. 299 ; and the cases absolute assignment in writing of a debt cited, ante, p. 371. S.L.O. VOL. I. 49 770 MASTER V. MILLER. (BuLLER, J.) midst of all these doctrines on maintenance, there was one case in which the courts of law allowed of an assignment of a clwae in action, and that was in the case of the crown ; for the courts did not feel themselves bold enough to tie up the property of the crown, or to prevent that from being transferred. 3 Leon. 198 ; Cro. Jac. 180. Courts of equity from the earliest times thoaght the doctrine too absurd for them to adopt, and therefore they always acted in direct contradiction to it ; and we shall soon see that courts of law also altered their language on the subject very much. In 12 Mod. 554, the court speaks of an assignment of an ap- prentice, or an assignment of a bond, as things which are good between the parties, and to which they must give their sanction and act upon. So an assignment of a chose in action has always been held a good consideration for a promise. It was so in 1 Eoll. Abr. 29, Sid. 212, and T. Jones, 222 ; and lastly, by all the judges of England in Mouldsdale v. Birchall, 2 W. Bl. 820, though the debt assigned was uncertain. After these cases, we may venture to say that the maxim was a bad one, and that it j)roceeded on a foundation which fails. But still it must be admitted that, though the courts of law have gone the length of taking notice of assignments of choses in action and of acting upon them, yet in many cases they have adhered to the formal objection, that the action shall be brought in the name of the assignor, and not in the name of the assignee. I see no use or convenience in preseiving the shadow when the substance is gone ; and that it is merely a shadow is apparent from the later cases, in which the court have taken care that it shall never work injustice. In Bottomley v. Brooke {z), C. B. Mich. ^2 G. 3, which was debt on bond, the defendant pleaded that tlie bond was given for securing 103/. lent to the defendant by E. Chancellor, and was given by her direction in trust for her, and that E. Chancellor was indebted to the defendant in more money. To this plea there was a demurrer, which was with- drawn by the advice of the court. In Budge v. Birch {:), K. B. (;:) Sec ] 'I'. R. G21, 022. Tliosc cases ratlicr to be restrained than cxteiuled. were diaajniroved of ill jTiic/ccrv. Tucker, This is, however, at variance with the 4 l'>. k. Ad. 74.'). In Wake v. Tinkler, policy of the C. L. P. Act, 1854, and the 16 Kast, ."^G, Lord EHenhorou^^di said ,Iurima facie case of suspicion, so that the onus of explain- ing it is throwii upon the party producing the instrument, see 2 ^^'ms. Saund. 200 c. n. (h). It has been laid down that, although in the case of a bill of exchange there is a distinct rule tliat an alteration must be explained, yet in the case of a deed the presumption is that the alteration was made before execution ; Doe v. Catomore, 16 Q. B. 745. The ))r<'sniiii)ti()n is to the contrary in the case of a will, l>ecause that may be altered by the testator, without wrong, after it is executed; Dor v. Palmer, 1(5 (^). B. 747; see ( lirhliiois V. ]l'lti}ii/((lcs, 3 Sw. & Tr. 81, where the same MASTER V. MILLER. 785 principle was applied to the case of a mutilation of a will ; Be Ccuhje, L. 11. 1 P. & D. 543 ; Re Adamson, 3 Id. 253. Qiuere whether the distinction between an alteration and an interlineation was much considered in Doe v. Catomore. In the case of bills and notes a cancellation b}^ mistake Cancellation does not affect the liability of the parties whose signatures - ""^take. are cancelled ; Rapcr v. Birkheck, 15 East, 17 ; Wilkinson V. Johnson, 3 B. & C. 428 ; Novelli v. Bossi, 2 B. & Ad. 765 ; Warwick v. Borjers, 5 M. & Gr. 352 ; Prince v. Oriental Bank, 3 App. Cas. 325; Bills of Exchange Act, 1882, s. 63 (3) ; nor does a cancellation by an agent without authority ; see Bank of Scotland v. Dominion Bank, (1891) A. C. 592. It appears that a mistake annuls the cancella- tion of a deed ; Perrott v. Perrott, 14 East, 423. " If the absence of intention to cancel be clearly shown, the thing is not cancelled ; " per Maule, J., Bamberger v. Commercial Co., 15 C. B. 693. Although for a long time Pilot's Case, 11 Eep. 26a, and Doctrine ex- Master y." Miller, were the authorities always referred to tended to other '' instruments. upon questions of alteration, and although such questions seldom arose except in actions upon deeds, bills of exchange, and promissory notes, )^et the doctrine of those two cases has been extended to other written instruments. In Powell V. Divett, 15 East, 29, the K. B. applied it to Bought and the case of bought and sold notes, and held that a vendor ®°^'' '^°'^^' who, after the notes had been exchanged, prevailed on the broker, without the vendee's consent, to add a term to the bought note for his, the vendor's, benefit, thereby lost all right against the vendee. The same law was acted upon in Mollett V. Wackerharth, 5 C. B. 181, where the buyer made the alteration in the sold note. In Davidson v. Cooper, 11 M. & W. 778, 13 Id. 343, to a Guarantee. count in assumpsit on a guarantee, the defendant pleaded that after it was given to the plaintiff it was altered in a material particular hy some person to the defendant unknoivn, without his consent, by affixing a seal so as to make it appear to be the deed of the defendant. Upon a motion for judgment non obstante veredicto, the Court of Exch. reviewed and expounded the law upon the general subject of altera- tion, and, holding the case to fall within the doctrine of Pigofs Case, gave judgment for the defendant ; and that judgment was affirmed b}' the Exch. Cham, "after much doubt." The doubt at first entertained by the Exch. Cham, may however be considered as fortifying their ultimate S.L.C. — VOL. I. 50 786 MASTER V. MILLER. Charter-part}'. Building contract. Instrument not necessarily avoided for all jiurposes. luiliiinntk V. JtuberUi. decision, which was founded on the principle, " that a jMrty who has the custodi/ of an instrument made for his benefit, is hound to preserve it in its original state." " It is," said Lord Denman, in delivering the judgment, "highl}^ important for i^reserving the purit}^ of legal instruments, that this principle should he home in mind, and the rule adhered to. The party who may suffer has no right to complain, since there cannot be any alteration except through fraud or laches on his part." Davidson v. Cooper was acted upon in Croockewit v. Fletcher, 1 H. & N. 893, where the instrument vitiated by alteration was a charter-party, and in Pattinson v. Luckley, L. R. 10 Ex. 330, where it was a building contract. In Lowe v. Fox, 12 App. Cas. 206, Lord Herschell, referring apparently to the expressions used in Davidson v. Cooper, and Croockeirit v. Fletcher, supra, said: "I do not feel at present prepared to say that in ever}' case an altera- tion, which would invalidate the document when made with the privity and knowledge of the person having the custody of it and relying upon it, would invalidate it if made in fraud of him and against his will." See per Alderson, B., Hutchins v. Scott, ^2 M. & W. 809, 814 ; and jx-r Lord Ellenborough, Henfree v. Bromley, 6 East, 309. It must be observed that in Davidson v. Cooper, supra, no explana- tion whatever was offered of the alteration. An instrument which, by reason of an alteration, becomes invalid as the foundation of an action, is not thereby neces- sarily avoided for all purposes. For instance, the alteration of a deed of conveyance, though it may deprive the cove- nantee of all right to sue upon the covenants therein contained, does not affect the ownership of the property conveyed ; Bolton v. Carlisle, 2 H. Bl. 263 ; Roe v. York, 6 East, 86 ; Doc v. Bingham, 4 B. & Aid. 672 ; and the deed may, it seems, still be adduced in evidence, to show what was originally conveyed thereby ; West v. Stewart, 14 M. & W. 47. In such cases, to use the words of Lord Abinger, in Davidson v. Coo2)er, sujyra, " the deed is produced merely as a proof of some right or title created by or resulting from its having been executed; " see Green v. Attenhorough, 3 H. & C. 468, where this distinction was adopted ; and also per Brett, L.J., Sujj'ell v. Bank of Fngland, 9 Q. B. D. 555, 568. In F(dmi)ulh v. llobcrls, 9 M. &: W. 469, the rule as to the destructive effect of altering a written instruriicnt was MASTER V. MILLEi:. 787 stated by Parke, B., to apply where the obligation sought to be enforced is hj/ reason of the insfniment. That was an action by landlord against tenant for mismanagement of a form, and an instrument purporting to be a written agree- ment for the letting of the farm with stipulations as to the mode of tillage, though exhibiting an erasure and inter- lineation of the term of years not satisfactorily accounted for, was admitted as evidence of the terms upon which the farm was held by the defendant, who had become tenant from year to year under a contract, implied from the fact of occupation, to abide by all the terms of the written agree- ment applicable to a tenancy from year to year. In that case the instrument given in evidence does not appear to have operated specifically as an agreement upon the terms of the existing tenancy ; for it did not contain the contract which the plaintiff sought to enforce ; but was only part of the evidence to prove that such a contract existed, though not in writing; and, as such evidence, only that part of the written instrument which stated the mode of tillage was material, and that part had not been altered. It was like the printed paper in Bolton v. Tomlin, 5 A. & E. 856, with the additional circumstance that it was identified by the tenant's signature. In Gould V. Coombs, 1 C. B. 543, a promissory note. Other assumed to have been avoided as a contract because the '"'' ^^n^es. name of a maker had been added, was yet admitted in evidence together with an " I U " for the amount given whilst the note was valid, to sustain a count upon an account stated. In Sutton v. Toonier, 7 B. & C. 416, an altered promissory note was admitted in evidence to show the terms of deposit of money for which it had been given. In Agricultural Co. v. Fitzgerald, 16 Q. B. 432, the deed of settlement of the compan}^ was admitted in evidence to prove that the defendant was a shareholder, though the names of other shareholders, who signed before he did, had been erased since his execution of it. In Hutchins v. Scott, 2 M. & W. 809, likewise, an altered agreement was admitted in evidence for a collateral purpose. In Pattinson v. Luckley, L. R. 10 Ex. 330, the plaintiff Pattlmon v. had done work for the defendant after the execution of a "'^ ''^' written building contract. That instrument was after execution altered in a material part b}' the defendant's architect. By the contract no work was to be paid for until after the architect had given a certificate. But the 50 2 788 MASTER V. MILLEE. l)laintiff, whilst admitting that a certificate had not been given for the work in resj^ect of whicli he sued, contended that the alteration of the instrument annulled the contract and that he might sue upon a quantum meruit. The court, however, entered the judgment for the defendant, holding that, though the defendant might have been disentitled to sue upon the contract as such, the instrument must still be louked at in that action to see what were the terms of the contract. See also Stewart v. Aston, 8 Ir. C. L. R. 35 ; Reynolds v. Hall, 28 L. J. Ex. 257 ; Caldwell v. Parker, 17 W. R. 955. The cancellation of a deed of lease with the mutual con- sent of the lessor and lessee does not defeat the right of the former to recover the rent in an action of debt on the demise ; Ward v. Lumley, 5 H. & N. 87 ; and in such action the cancelled instrument is admissible in evidence for the plaintiff on the issue joined on a plea of non-demisit; Ward V. Lumley, Id. 656. WLat must In pleading an alteration the defendant was bound, before ^leadi'n''' ail ^^^® Judicature Acts, to show that it was in writing ; Harden alteration. y. Clifton, 1 Q. B. 522 : that it was made after his contract was complete (as, for instance, in the case of the acceptor of a bill, by acceptance) ; Langton v. Lazarus, 5 M. & W. / 629 : and, either that it was made without his consent, or ■ that it was of such a character as to render a new stamp ' necessary, and made under circumstances in which a new stamp could not legally be affixed ; Bradley v. Bardsley, 14 M. & W. 873 : and also, perhaps, that the alteration was made when the instrument was in the plaintiff's custod}', though made by a stranger ; Davidson v. Cooper, 13 M. & W. 343 ; Pattinson v. Lucldey, L. R. 10 Ex. 330. Stanii) Acts. As to when a defence under the Stamp Acts was available by plea, see Lazarus v. Cowie, 3 Q. B. 459 ; Marc v. Rouy, 23 W. R. 89 ; and see also the last-named case as to the cancellation of stamps on foreign bills of exchange. FLETCHER v. P.YLANDS AND ANOTHER. E. T. 29 VICT., EXCH. CHAM. : SES.S. 31 <£• 32 VICT., II. L. [reported, l. r. 1 EX. 265 : L. r. 3 H. l. 330.] A person who, for his own purposes, brings on to his land and collects and keeps there anything likely to do mischief if it escapes, must keej) it in at his peril, and, if he does not do so, in prirnti facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default ; or, perhaps, that the escape was the consequence of vis major y or the act of God. Error (a) from the judgment of the Court of Exchequer on a special case. Declaration. First^count, that the defendants were possessed of land in the township of Ainsworth, except the mines and veins of coal under the surface ; and that the plaintiff was possessed of coal mines lying near the defendants' land ; and that by reason thereof, and of a licence from the person in possession of certam underground cavities near the mines, he was entitled to use those cavities for the purpose of working the mines, and getting coals from the mines and carrying them through the cavities ; yet the defendants so carelessly and negligently constructed on the said land a reservoir to contain water, and kept therein, in their pos- session and under their care, large quantities of water, and took so little and such bad care of the water, that large quantities thereof, by reason of the premises, escaped from the reservoir and flowed towards and into the said mmes and cavities, whereby the plaintiff was prevented for a long time from working the mines, and getting coal therefrom, and carrying the same through the cavities, and was put to expense in pumping out the water and repairing damage done by it, and lost gains and profits ; and that such reasonable fear of being drowned in the mmes and cavities was caused in the minds of workmen then and theretofore em- (a) The report of this case in the frDin the Law Reports, with the per- Exch. Cham, and the H, L. is reprinted mission of the Council of Law Reporting. 790 FLETCHER V. RYLANDS. ployed ill the mines, and of others, that the working of the mines was rendered permanently more expensive and more difficult than it had been or would otherwise have continued to be. Second count, that the plaintiff was possessed of coal mines, and that by reason thereof, and of a licence, &c. (repeating the allegations as to the cavities) ; and that the defendants were pos- sessed of large quantities of water then by the defendants kept m a reservoir near to the mines and cavities ; yet the defendants took so little and such bad care, &c. (repeating the allegations as to negligence and damage to the end of the first count). Third count, that the plaintiff was possessed of mines and veins of coal in and under certain land, and the defendants were pos- sessed of the said land above part of the said mines and veins ; yet the defendants so negligently, carelessly, and improperly made and constructed a reservoir on the said land, and collected and dammed up thereon large quantities of water on the surface ; that by reason of the premises large quantities of the said water flowed and forced their way through and out of the reservoir, towards, to, and into the mines and veins of coal of the plaintiff, whereby the mines and veins of coal were much damaged, and the plaintiff was prevented, &c. (repeating the allegations as to damage) . Plea, Not guilty. Issue thereon. The action came on to be tried at the Liverpool summer assizes, 1862, and a verdict was entered for the plaintiff for 5,000^., sub- ject to an award on the terms mentioned in an order of nisi prills, made 3rd of September, 1862. By a subsequent order of Channell, B., made 31st of December, 1864, the arbitrator was empowered, instead of making an award, to state a special case for the opinion of the Court of Exchequer, in such form as he should think fit, and it was ordered that the verdict should be subject to such special case, and that error might be brought on the judg- ment thereon, and on the judgment of the Exchequer Chamber, in the same manner as on a judgment on a special verdict. The special case was argued in the Court of Exchequer in Trinity Term, 1865, ])efore Pollock, C.B., and Martin and Bram- well, BB., and judgment was given for the defendants by Pollock, C.B., and Martin, B. ; Bramwell, B., dissenting (b). (b) 3 II. & C. 774 ; 34 L. J. Ex. 177. FLETCHER V. RYLANDS. 791 On this judgment the plaintiff brought error. The case stated as follows : — The plaintiff had, since 1850, occupied a colliery in the town- ship of Ainsworth, called the Red House Colliery, as tenant to the Earl of Wilton. The defendants owned a mill, called the Ainsworth Mill, lying to the west of the Eed House Colliery. In 1860, the defendants, in pursuance of an arrangement with Lord Wilton, made a reservoir for their mill in other land of Lord Wilton's lying to the north-west of the colliery, and separated from it, and from the mill, by lands belonging to two persons named Hulton and Whitehead. Whitehead's land lay to the north of and adjoining the land over the Eed House Colliery ; on the west it adjoined Hulton's land ; and on all other sides was surrounded by Lord Wilton's land. Hulton's land lay to the west of and adjoining Whitehead's land ; on the north it adjoined the land of Lord Wilton, m which the reservoir was constructed, and on the south it adjoined the Eed House Colliery and the defendants' mill, the mill being to the west of the colliery. The seams of coal belonging to the Red House Colliery are continued under the lands of Hulton and Whitehead, and under the lands in which the reservoir was made, and their dip is down- wards from north-east to south-west. The coal under the site of the reservoir, and under Lord W^ilton's land lying between that site and Hulton's land, as well as under the lands of Hulton and Whitehead, had at some time beyond living memory been partially worked ; and, before the commencement of the plaintiff's workings at the Eed House Colliery, the old coal workings under the site of the reservoir communicated with old coal workings under Whitehead's land by means of the intervening old coal workings under the land of Hulton and under the land of Lord Wilton lying to the north of Hulton's land. Soon after the plaintiff commenced to work the Eed House Colliery in 1850, he made arrangements with Whitehead to work the ungotten coal lying under Whitehead's land by means of the Eed House pit ; and in 1851 he accordingly worked through from the Eed House Colliery into the coal under Whitehead's land, and so into the old workings there. This was done in the first instance without the knowledge of Lord Wilton ; but afterwards, 792 FLETCHER V. RYLANDS. and whilst the plamtiff was working this coal by the Red House pit, the fact became known to the earl's agents, and from that time the plaintiff so worked it without any objection on the part of the earl or his agents. In consequence of these workings, the old coal workings under the site of the reservoir were, by means of the intervening under- ground workings, made to communicate with the plaintiff's coal workings in the Eed House Colliery ; so that water which found its way into the old workings under the reservoir would, by means of this communication, flow down to and into the Red House Colliery. These underground communications were effected several years before the defendants commenced making their reservoir, and continued down to the time when it burst ; but until that time their existence was not known to the defendants, nor to any agent of theirs, nor to any other person employed by them ; neither was it till that time known to them, or to any of the persons employed by them in or about the selecting of the site, or the planning or constructing of the reservoir, that any coal had been worked under the reservoir, or under any of the land of Lord Wilton lying to the north of Hulton's land. In the course of constructing and excavating for the bed of the reservoir, five old shafts, running vertically downwards, were met with in the portion of land selected for its site ; but though the timber sides of three of them remained, the shafts themselves were filled up with soil ; and it was not known to or suspected by the defendants, or any of the persons employed by them in making the reservoir, that they led down to old coal workings under its site. For the selection of the site, and for the planning and construc- tion of the reservoir, it was necessary that the defendants should employ an engineer and contractors ; and they did for those pur- poses employ a competent engineer and competent contractors, )jy whom the site was selected, and the reservoir planned and constructed. On the part of the defendants themselves there was no personal negligence or default whatever ; but, with ]-eference to the shafts met with, reasonable and proper care and skill were not exercised by the persons they employed, to provide for the sufficiency of the reservoir to bear tlie pressure of water FLETCHER V. RYLANDS. 793 which, when filled to the height proposed, it would have to bear. The reservoir was completed about the beginning of December, 1860, and the defendants caused it to be partially filled w'ith water. On the morning of the 11th December, whilst it was thus partially- filled, one of the shafts gave way and burst downwards, and the water flowed into the old coal workings beneath, and by means of the underground communications found its way into the coal workings in the Eed House Colliery, and flooded the colliery, so that its working was necessarily suspended, and after some unsuccessful attempts to renew it, the colliery was finally abandoned. The question stated for the opinion of the court was, whether the plaintiff was entitled to recover any, and, if any, what damages from the defendants, by reason of the matters herein- before stated (c). Feb. 8, 18G6. Manisty, Q.C. {J. A. Jlusscll with him), for the plaintift'. — First, omitting the consideration that the defendants became tenants of Lord Wilton, the plaintiff's landlord, subse- quently to the demise to the plaintiff, and to the making of the works connecting the underground passages, and dealing with the matter as if they were mere strangers, the plaintiff is entitled to recover damages. The principle of law which governs the case is, that he who does upon his own land acts which, though lawful in themselves, may become sources of mischief to his neighbours, is bound to prevent the mischief from occurring, or in the alter- native to make compensation to the persons injured. This will be peculiarly the case when the act done consists in the construc- tion and use of artificial works, for the purpose of collecting and impounding in vast quantities an element which will certainly cause mischief if it escapes. The case does not resemble that of a servient and a dominant tenement with acquired rights, as seems to have been thought by Martin, B., in his comment upon Tenant v. Goldwin (d), and the duty is independent of the imme- diate neighbourhood of the lands. Neither is the circumstance (c) The case contained variovis state- the amount of damages, those statements ments for the purpose of showing the are omitted. See note (d). post, p. 811. damage siiflered by the plaintiff' ; but as [d) 2 Ld. Raym. 1089; 1 Salk. 21, there was no argument or decision as to 360. 794 FLETCHER V. RYLANDS. material which is rehed on by the Chief Baron, that the com- munication by which the water passed was underground and unseen ; for the plaintiff's right of action is founded on his abso- lute right to enjoy his property undisturbed by the acts of his neighbours, and is independent of the amount of care exercised by them, or of their means of knowledge. This is the effect of Lambert v. Bcssey{e), and the opinions there pronounced. [Blackburn, J. — In the cases put there the things done were all prima facie wrong, but the difficulty here is in saying that what was rightful in the first doing became wrongful in the con- tinuance. The other side will contend that their duty was to take care, but not to take successful care.] The duty is the same as that of rendering support to neigh- bouring land, from which the landowner is not excused by his ignorance of the state of adjoining land which may contribute to the injury, or of the position of the strata which he cannot know ; he is absolutely bound not to injure his neighbour by the with- drawal of support : Bonomi v. Backhouse (/). Similarly the mine-owner who works to the edge of his land subjects himself to the natural flow of water into his mine, but not to the flow of water artificially brought there by a neighbouring mine-owner ; these two propositions are established by Smith v. Kenrick (g) and Baird v. Williamson (h). The case of Hodgkinson v. Elinor (i) is an authority for the plaintiff', resembling the present case in the fact that the communication by which the defendant's dirty w^ater flowed to the plaintiff'' s premises was underground , lBlackbuen, J., referred to the case of damage done by the bursting of waterworks companies' reservoirs.] Such cases usually arise under a clause in the special Act of the company, imposing on them a liability to make compensa- tion. Bagncdl v. L. tO iV. W. R. Co. (k), however, though not so simple in its circumstances as the present, is in principle indistinguishal)le. [Blackburn, J. — The point in that case was, that, however the water got upon tlio line, the company were bound by their Act to (e) Sir T. Rtiyin. 421. (h) 15 C. B. N. S. 376. (/) 9 II. L. C. 503 ; K. 15. & E. 622, (i) 4 B. & S. 229. 65t». (/.•) 7 H. & N. 423, 452. ((/) 7 C. ]}. 515. FLETCHER V. RYLANDS. 795 have their drains in order to carry it off, and that their drains were not in order. WiLLEg, J. — That was certainly the ground of the judgment of this court.] The principle contended for is laid down in Aldred's Case (l) ; and in Williams v. Groucott (m) by Blackburn, J., who says, ' ' when a party alters things from their normal condition so as to render them dangerous to already acquired rights, the law casts on him the obligation of fencing the danger, in order that it shall not be injurious to those rights ; " and by Gibbs, C.J., in Sutton V. Clarke {n), who, distinguishing the case then before him, says : " This case is perfectly unlike that of an individual, who, for his own benefit, makes an improvement on his own land, according to his best skill and diligence, and not foreseeing it will produce any injury to his neighbour ; if he thereby unwittingly injure his neighbour, he is answerable." The question as to the purity or impurity of the water discharged is immaterial, the same principle applies to both cases. [Blackburn, J. — It is a different sort of mischief, but it is equally a mischief.] Chauntler v. Robinson (o) is no authority against the plaintiff; for it decides nothing but that the owner of a house is not obliged to repair merely because he is owner. The case, however, mostly relied upon on the other side is Chadwick v. Troicer {p) ; the plaintiff there was held to have no right to support for his vault from the vault of his neighbour, who was ignorant of the existence of the plaintiff's vault, and the judgment proceeded on the ground of the absence of right to such support, and on the fact that no circumstances existed imposing on the defendant the duty of care. [Lush, J. — In fact the plaintiff there sought to impose a servi- tude on the defendant's premises.] Secondly, the plaintiff was tenant of Lord Wilton, and the communication was effected by workings made with the land- lord's consent nine years before the defendants became tenants of the site of the reservoir ; the defendants could only take their land subject to the obligation which was imposed upon the land- lord by this state of facts. (Z) 9 Rep. 57 b. (o) 4 Exch. 163—170. (ot) 4 B. & S. 149, 157. {p) 6 B. N. C. 1. (n) 6 Taunt. 29, 44. 796 FLETCHER V. RYLANDS. Thirdly, the defendants were liable for the negligence of the persons who made the reservoir ; for, first, they could not dis- charge themselves of their duty of care by employing them, and secondly, the knowledge of those persons of the existence of the shafts was notice to the defendants both of the facts and of the danger. Mellish, Q.C. {T. Jones with him), for the defendants. — The question is a novel one, but authority and reason are in favour of the defendants. It is true the defendants have altered the condition of their land, but on the other hand, if the plaintiff had left the intervening land in its natural state, no mischief would have ensued. The mischief was caused by secret acts done partly by strangers, partly by the plaintiff himself, which have broken down the natural partition of the lands, and opened the channels by which the water has come, and it will be strange if those secret acts, not communicated to the defendants, should impose on them a liability. But on broad principles, there is no such obligation as is contended for on the other side. The only obligation on the defendants is to take care, that is, reasonable care, not to injure the property of others ; and, to establish their liability in this action, it will be necessary to go the length of saying that an owner of real property is liable for all damage resulting to his neighbour's property from anything done upon his own land. It is clear that there is no such obligation with respect to personal property. The right, not to have " foreign water " sent upon one's land, is not a greater or more important right than the right not to have one's person injured, but in the latter case no right of action arises unless the damage is caused by the direct act of the defendant himself, or by his negligence. The same rule applies to real property, and though the cases are fewer they are to this effect. The instances in which the owner of real pro- I)erty has been held liable may be classified thus : first, acts of trespass ; second, acts purposely done, and which are calculated to cause the injury complained of, as in AldrecVs Case {q) ; third, cases where, by reason of the natural relation of the properties, a legal relation has been constituted between them ; as in the case of the right to support, or the right to a watercourse, which are natural easements, and as to which the plaintifi" need not allege (q) 9 Itep. 57 b. FLETCHEK V. EYLANDS. 797 any special title in himself, nor any negligence in the defendant. Here no right of this latter class is involved, but the right is the same as the right of any subject not to be injured by any other subject : and the fallacy in the judgment of Bramwell, B., in the court below is in assuming that there is any such right as "to be free from foreign water," or " not to have W'ater turned in upon one." There is no such right distinct from the general right of ownership in the soil, and the case stands on the same footing as if the owner had himself been drowned at the bottom of the mine. The second class of cases is illustrated by Hoclgkinson v. Elinor (?•), for it was there found as a fact that the defendant knew that the channel down which he poured the dirty water would carry it to the plaintiff's premises ; he threw it into the sw^allet meanmg that it should be carried away, and it might perhaps be admitted that, having done this intentionally, he would be liable whether he knew where it W'Ould go to or not ; but the ctefendants here have tried to keep the water in, but by its own weight it has forced its way through. [Lush, J. — Suppose the bank of the reservoir had burst, and the water had flowed over the surface and down the pit's mouth.] The distinction between the surface and underground passages is only material as a circumstance of negligence ; with reference to the surface, the facts are known which give rise to the obliga- tion to take care, but the ignorance of the state of things under- ground takes away the opportunity of exercising care, and therefore the duty to exercise it. It is for this purpose only that the defen- dants rely on Chachvick v. Trower (s) ; supposing it made out that there is no liability except where there is carelessness, that case shews that there can be no carelessness where there is no know- ledge, nor any circumstances giving the means of obtaining knowledge, with a duty to know ; and there is no case where a defendant has been held liable without such knowledge or notice. That being so, it is immaterial whether or not the duty to take care means a duty to insure against all consequences, for the occasion of that duty has never arisen. [Blackburn, J. — The present ^Doint may be illustrated thus : suppose a man leans against my cart, if I remove the cart suddenly, and without warning, not knowing he is there, I am not (r) 4 B. & S. 229. (s) 6 B. K C. 1. 798 FLETCHER V. RYLANDS. liable, but if I do so knowing that he is there, though he has no right to lean against my cart, yet I am liable if my act injures him. WiLLES, J. — Take the case of a continuous nuisance, I mean continuous in its own character ; the person who erects it is liable at once, the person who succeeds to it is not liable unless he has notice and continues it, but it is said that as soon as he has notice of it he must abate. Suppose a man to collect a quantity of springs in such a manner as to cause them to pour down his neighbour's mine. Assuming that the person who succeeded to the possession of the land where the springs were so collected would not be liable until notice, yet you would admit that upon receiving notice he would be liable for continuing it. Then is there any case where the same doctrine has been held to apply to the originator of the nuisance ?] It is submitted that the liability would turn on the defendants' knowledge, and that in each case knowledge is the essential con- dition of liability. In the absence of any authority distinguish- ing liability in respect of injury to real property from liability in respect of other injuries, the doctrine laid down as to actions of the latter kmd applies, and in these it is clear that negligence must be shewn. This is illustrated by Scott v. Loudon Dock Co. (t), where it was never doubted that negligence must be alleged and proved, and the only question was, whether the fact, that the bale which fell was under the management of the defen- dant's servants, was sn^cient 2>rimd facie evidence of negligence. A common instance is that of collisions of ships at sea, or acci- dents caused by driving or riding along the highway, as Ham- mack V. White (?/), in all which cases without negligence there is no liabihty. [Lusii, J. — Suppose the case of a gunpowder magazine burst- ing, what liability do you say its owners would incur ?] None, if there was no negligence as to the place where the powder was kept, or in the manner of keeping it. The liability as to fire, formerly an absolute duty to insure against all mischief caused to your neighbours by fire arising on your own property, is said to have been by the custom of the realm ; Turhervil v. Stamj) {x) ; Com. Dig., Action on the case for negligence (A 6) (t) 3 II. & C. 596. (x) ] Salk. 13. (m) 11 C. B. N. S, 588. FLETCHER V. IIVLAXDS. 79'J and since the passing of 14 Geo. 3, c. 78, and the decision upon s. 8G of that Act in Filliter v. Pliippard (jj), the Habihty for injury by fire is restricted to mischief arising from neghgence, that is, it is put on the same footing as liabiHty for other injuries. The sum of the argument is, that to make the defendant lialjle a wrongful act must be shewn, and that to prove the act wrongful you must prove it negligent. lWilles, J., referred to Gregory v. Piper {z).] That was a case of trespass, to which this cannot be compared, nor is there any count in trespass here. In Gregory v. Piper {z), it was proved to be impossible that the act of the defendant's servant could be done as the defendant directed without commit- ting a trespass ; the act, therefore, became the direct act of the defendant, and that was the ground of the judgment. The dis- tinction is between acts done directly by the defendant, which include all acts which are specifically directed by him, although not done by him physically or in his presence, and things which are only the consequences of what he does or directs to be done ; it is in respect of these last that negligence is material. [Blackburn, J., referred to Tenant v. Goldwin (a).] That case is open to the same observation ; the mischief was the inevitable consequence of the combined facts that the defen- dant put the filth there, and that he did not repair the wall, which was his own wall. The case may indeed be put as a case of negligence, the negligence consisting in taking no care to pre- vent the filth from flowing into his neighbour's premises. With respect to the cases cited upon the other side, they are all distinguishable. Boyiomi v. Backhouse (h) belongs to the third class of cases mentioned above, and depended on the right arising by reason of the contiguity of the lands. LamJiert v. Bcssey (r) was a case of trespass. Baird v. Williamson (d) was a case in which the defendant purposely caused the water to flow into the adjoining mine ; no right is contended for here to use the plain- tiff's land as an outlet. On the other hand, the language used in Smith v. Kenrick (e) supports the defendants' contention, " it would seem to be the natural right of each of the owners of two (y) 11 Q. B. 347. (&) 9 H. L. C. 503. (z) 9 B. & C. 591. (c) Sir T. Raym. 42]. (a) 2 Ld. Raym. 1089 ; 1 Salk. 21, {rl) 15 C. B. N. S. 376. 360 ; 6 Mod. 311 ; Holt, 500. (e) 7 C. B. 515, 564 800 FLETCHER V. EYLANDS. adjoining coal mines — neither being subject to any servitude to the other — to work his own in the manner most convenient and beneficial to himself, although the natural consequence may be that some prejudice will accrue to the owner of the adjoining mine, so long as that does not arise from the negligent or malicious conduct of the party." AldrecVs Case (/) was also an instance of an act purposely done, and calculated to cause a nuisance : Bagnall v. L. Jj N. W. R. Co. (g) turned upon the obligation imposed upon the company by their Act. As to the dictum of Gibbs, C.J., in Sutton v. Clarke (h), it was pronounced obiter, the decision in the case being in favour of the defendants on the ground that they were public trustees. Secondly, the defendant is not liable for the negligence of the contractors employed by him. It was laid down in Butler v. Hunter (i) that, when one gives an order to a skilled person to do a particular thing, he must be taken to mean that it shall be done with the proper precautions. The negligence of the con- tractor was negligence towards his employer as well as towards third persons, and he, as the wrong doer, is liable to actions by both parties, who have been both in different ways injured by his carelessness ; but, the plaintiff having a right of action against him, there is a presumption against the liability of the defen- dants, for the plaintiff would then have a double remedy. [WiLLES, J., referred to Pickard v. Smith (k).] Manisty, Q.C., in reply. — It seems to be admitted that if a trespass has been committed the defendants are liable ; and here the collecting!; of the water in such a manner as to invade the (/) 9 Kep. r>7 b. occupier of the cellar ; and in delivering (rj) 7 H. & N. 423. the judgment of the court, Williams, J., (h) 6 Taunt. 29, 44. after referring to the rule which exempts (i) 7 H. & N. 826. the employer from liability for the negli- {k) 10 C. B. N. S. 470. Tlie defen- gence of an independent contractor em- dant occupied a refreshment-room and ployed by him to do a lawful act, says coal cellar at a railway station, the trap (p. 480): "The rule, however, is not of the coal cellar being in the platform ajjplicable to cases in which the act of the station. The plaintiff, a passenger which occasions the injury is one which by the railway, as he was going along the contractor was employed to do ; nor, the platform, fell down the opening by parity of reasoning, to cases in which whilst the trap-door was raised for the the contractor is entrusted with the per- purpcse of the coal merchant di.scharging formance of a duty incumbent on his coal into the cellar, and was under the employer, and neglects its fulfilment, coal merchant's control. It was held whereby au injury is occasioned. " that the defendant was liable as the FLETCHER V. IIYLANDS. 801 premises of the plaintiff was a trespass ; as there would have been a trespass in Bonoini v. Backhouse {I) if the consequence of the withdrawal of support had been to let down a house upon the plaintiff's land ; and as the tlow of the filth is actually described to be in Tenant v. Goldwin {m). He also referred to Barber v. Nottingham dc Grantham R. Co. (n). [Mellish, Q.C. — That case turned on the language of the defen- dants' special Act ; I argued the case, and the court refused to give any answer to my question, whether at common law an action would lie.] Cur. adv. vult. May 14, 1866. The judgment of the court (Willes, Blackburn, Keating, Mellor, Montague Smith, and Lush, JJ.), was delivered by Blacivbukn, J. — This was a special case stated by an arbitrator, under an order of }iisi jjd'ks, in which the question for the court is stated to be, whether the plaintiff' is entitled to recover any, and, if any, what damages from the defendants, by reason of the matters thereinbefore stated. In the Court of Exchequer, the Chief Baron and Martin, B., were of opinion that the plaintiff" was not entitled to recover at all, Bramwell, B., being of a different opinion. The judgment in the Exchequer was consequently given for the defendants, in con- formity with the opinion of the majority of the court. The only question argued before us was, whether this judgment was right, nothing being said about the measure of damages in case the plaintiff' should be held entitled to recover. We have come to the conclusion that the opinion of Bramwell, B., was right, and that the answer to the question should be that the plaintiff' was entitled to recover damages from the defendants, by reason of the matters stated in the case, and consequently, that the judg- ment below should be reversed, but we cannot at present say to what damages the plaintiff" is entitled. It appears from the statement in the case, that the plaintiff" was damaged by his property being flooded by water, which, without any fault on his part, broke out of a reservoir con- (Z) 9 H. L. C. 503. {n) 15 C. B. X. S. 726. (m) 2 Ld. Raym. 1089 ; 1 Salk. 21, 360. S.L.C. VOL. I. 51 802 FLETCHER V. RYLA.NDS. structed on the defendants' land by the defendants' orders, and maintained by the defendants. It appears from the statement in the ease [see pp. 791, 792], that the coal mider the defendants' land had, at some remote period, been worked out ; but this was unknown at the time when the defendants gave directions to erect the reservoir, and the water in the reservoir would not have escaped from the defendants' land and no mischief would have been done to the plaintiff, but for this latent defect in the defendants' subsoil. And it further appears [see pp. 792 — 3], that the defendants selected competent engineers and contractors to make their reservoir, and themselves personally continued in total ignorance of what we have called the latent defect in the subsoil ; but that these persons employed by them in the course of the work became aware of the existence of the ancient shafts filled up with soil, though they did not know or suspect that they were shafts communicating with old workings. It is found that the defendants, personally, were free from all blame, but that in fact proper care and skill was not used by the persons employed by them to provide for the sufficiency of the reservoir with reference to these shafts. The consequence was, that the reservoir when filled with water burst into the shafts, the water flowed down through them into the old workings, and thence into the plaintiff's mine, and there did the mischief. The plaintiff, though free from all blame on his part, must bear the loss, unless he can establish that it was the consequence of some default for which the defendants are responsible. The question of law therefore arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings on his land something which, though harmless whilst it remains there, will naturally do mischief if it escape out of his land. It is agreed on all hands that he must take care to keep in that which he has brought on the land and keeps there, in order that it may not escape and damage his neighbours, l)ut the question arises whether the duty which the law casts upon him, under such circumstances, is an absolute duty to keep it in at his peril, or is, as the majority of the Court of Exchequer have thought, merely a duty to take all reasonable and prudent precautions, in order to keep it in, l)nt no more. If the first be the law, the FLETCHER V. KYLANDS. 803 person who has brought on his land and kept there something dangerous, and failed to keep it in, is responsible for all the natural consequences of its escape. If the second be the limit of his duty, he would not be answerable except on proof of negligence, and consequently would not be answerable for escape arising from any latent defect which ordinary prudence and skill could not detect. Supposing the second to be the correct view of the law, a further question arises subsidiary to the first, viz., whether the defendants are not so far identified with the contractors whom they employed, as to be responsible for the consequences of their want of care and skill in making the reservoir in fact insuffi- cient with reference to the old shafts, of the existence of which they were aware, though they had not ascertained where the shafts went to. We think that the true rule of law is, that the person who for his own jjurposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answer- able for all the damage which is the natural consequence of its escape. He can excuse himself by shewing that the escape was owing to the plaintiff's default ; or perhaps that the escape was the consequence of vis major, or the act of God ; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali works, is damnified without any fault of his own : and it seems but reasonable and just that the neighbour, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but just that 51 2 804 FLETCHER V. EYLANDS. he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this we think is established to be the law whether the things so brought be beasts, or water, or filth, or stenches. The case that has most commonly occurred, and which is most frequently to be found in the books, is as to the obligation of the owner of cattle which he has brought on his land, to prevent their escaping and doing mischief. The law as to them seems to be perfectly settled from early times ; the owner must keep them in at his peril, or he will be answerable for the natural consequences of their escape ; that is, with regard to tame beasts, for the grass they eat and trample upon, though not for any injur}' to the person of others, for our ancestors have settled that it is not the general nature of horses to kick, or bulls to gore ; but if the owner knows that the beast has a vicious propensity to attack man, he will be answerable for that too. As early as the Year Book, 20 Ed. 4, 11, placitum 10, Brian, C.J., lays down the doctrine in terms very much resembling those used by Lord Holt in Tenant v. Goldwin (o), which will be referred to afterwards. It was trespass with cattle. Plea, that the plaintiff's land adjoined a piece where defendant had common, that the cattle strayed from the common, and defen- dant drove them back as soon as he could. It was held a bad plea. Brian, C.J., says: "It behoves him to use his common so that he shall do no hurt to another man, and if the land m which he has common be not enclosed, it behoves him to keep the beasts in the common and out of the land of any other." He adds, when it was proposed to amend by pleading that they were driven out of the common by dogs, that, although that might give a right of action against the master of the dogs, it was no defence to the action of trespass by the person on whose land the cattle went. In the recent case of Cox v. BiirUdge (p), Williams, J., says, "I apprehend the general rule of law to be perfectly plain. If I am the owner of an animal in which by law the right of property can exist, I am bound to take care that it does not stray into the land of my neighbour, and I am liable for any trespass it may commit, and for the ordinary conse- (o) 2 Ld. liayin. 1089 ; 1 Salk. 300. (p) 13 C. B. N. S. 430, 438. FLETCHER V. P.YLANDS. 805 quences of that trespass. Whether or not the escape of the animal is due to my negligence is altogether immaterial." So in ]\Iat/ V. Bardett (q), the court, after an elaborate examination of the old precedents and authorities, came to the conclusion that " a person keeping a mischievous animal, with knowledge of its propensities, is bound to keep it secure at Itis j>t'n7." And in 1 Hale's Pleas of the Crown, 430, Lord Hale states that where one keeps a beast, knowing its nature or habits are such that the natural consequence of his being loose is that he will harm men, the owner " must at his peril keep him up safe from doing hurt, for though he use Ids diligence to keep him up, if he escape and do harm, the owner is liable to answer damages " ; though, as he proceeds to shew, he will not be liable criminally without proof of want of care. In these latter authorities the point under consideration was damage to the person, and what was decided was, that where it was known that hurt to the person was the natural consequence of the animal being loose, the owner should be responsible in damages for such hurt, though where it was not known to be so, the owner was not responsible for such damages ; but where the damage is, like eating grass or other ordinary ingredients in damage feasant, the natural con- sequence of the escape, the rule as to keeping in the animal is the same. In Com. Dig., Droit. (M. 2) it is said that, " if the owner of 200 acres in a common moor enfeoffs B. of 50 acres, B. ought to enclose at his %)eril, to prevent damage by his cattle to the other 150 acres. For if his cattle escape thither they may be distrained damage feasant. So the owner of the 150 acres ought to prevent his cattle from doing damage to the 50 acres at his peril." The authority cited is Dyer, 372 b, where the decision was that the cattle might be distrained ; the infer- ence from that decision, that the owner was bound to keep in his cattle at his peril, is, we think, legitimate, and we have the high authority of Comyns for saying that such is the law. In the note to Fitzherbert Nat. Brevium, 128, which is attributed to Lord Hale, it is said, "If A. and B. have lands adjoining, where there is no enclosure, the one shall have trespass against the other on an escape of their beasts respectively. Dyer, 372, Eastal Ent. 621, 20 Ed. 4. 10, although wild dogs, &c., drive the iq) 9 Q. B. 101, 112 (the case of a monkey). 806 FLETCHER V. RYLANDS. cattle of the one into the lands of the other." No case is known to us in which in replevin it has ever been attempted to plead in bar to an avowTy for distress damage feasant, that the cattle had escaped without any negligence on the part of the plaintiff, and surely if that could have been a good plea in bar, the facts must often have been such as would have supported it. These autho- rities, and the absence of any authority to the contrary, justify Williams, J., in saying, as he does in Cox v. Burhidge (r), that the law is clear that in actions for damage occasioned by animals that have not been kept in by their owners, it is quite immaterial whether the escape is by negligence or not. As has been already said, there does not appear to be any difference in principle, between the extent of the duty cast on him who brings cattle on his land to keep them in, and the extent of the duty imposed on him who brings on his land, water, filth, or stenches, or any other thing which will, if it escape, naturally do damage, to prevent their escaping and injuring his neighbour, and the case of Tenant v. Goldwin (s) is an express authority that the duty is the same, and is, to keep them in at his peril. As Martin, B., in his judgment below appears not to have understood that case in the same manner as we do, it is proper to examine it in some detail. It was a motion in arrest of judg- ment after judgment by default, and therefore all that was well pleaded in the declaration was admitted to be true. The declara- tion is set out at full length in the report in 6 Mod. p. 311. It alleged that the plaintiff had a cellar which lay contiguous to a messuage of the defendant, " and used (solchat) to be separated and fenced from a privy house of office, parcel of the said mes- suage of defendant, by a thick and close wall, which belongs to the said messuage of the defendant, and by the defendant of right ought to have been repaired (jure dehuit reparari)." Yet he did not repair it, and for want of repair filth flowed into plaintiff's cellar. The case is reported by Salkeld, who argued it, in 6 Mod., and by Lord Eaymond, whose report is the fullest. The objec- tion tak(!n was that there was nothing to show that the defendant was under any obligation to repair the wall, that, it was said, being a charge not of common right, and the allegation that the (r) i:} (J. 15. N. S. 438; 32 L. J. C. P. (.v) 1 Sulk. 21, 360 ; 2 Ld. Rayni. 80. 1089 ; G Mud. 311. FLETCHER V. RYLANDS. 807 wall lie j lire debuit rc2)arari by the defendant being an inference of law which did not arise from the facts alleged. Salkeld argued that this general mode of stating the right was sufficient in a declaration, and also that the duty alleged did of common right result from the facts stated. It is not now material to inquire whether he was or was not right on the pleading point. All three reports concur in saying that Lord Holt, during the argument, intimated an opinion against him on that, but that after con- sideration the court gave judgment for him on the second ground. In the report of 6 Mod. (t) it is stated, " And at another day 7:>6'r totam curiam : The declaration is good ; for there is a sufficient cause of action appearing in it ; hut not upon the word solebat. If the defendant has a house of office inclosed with a wall which is his, he is of common right bound to use it so as not to annoy another. . . . The reason here is, that one must use his own so as thereby not to hurt another, and as of common right one' is bound to keep his cattle from trespassing on his neighbour, so he is bound to use anything that is his so as not to hurt another by such user. . . . Suppose one sells a piece of pasture lying open to another piece of pasture which the vendor has, the vendee is bound to keep his cattle from running into the vendor's piece ; so of dung or anything else." There is here an evident allusion to the same case in Dyer (u) as is referred to in Com. Dig., Droit. (M. 2). Lord Eaymond in his report (x) says : " The last day of term. Holt, C.J., delivered the opinion of the court, that the declaration was sufficient. He said that upon the face of this declaration there appeared a sufficient cause of action to entitle the plamtiff to have his judgment ; tJiat they did not go uj)on tJie solebat, or the jure debuit reparari, as if it were enough to say that the plaintiff had a house, and the defendant had a wall, and he ought to repair the wall ; but if the defendant has a house of office, and the wall which separates the house of office from the plaintiff's house is all the defendant's, he is of common right bound to re^oair it. . . . The reason of this case is upon this account, that every one must so use his own as not to do damage to another ; and as every man is bound so to look to his cattle as to keep them out of his neighbour's ground, that so he (i) P. 314. {x) 2 Ld. Raym. 1092. (li) See ante, p. 805. 808 FLETCHER V. RYLANDS. may receive no damage ; so he must keep in the filth of his house of office that it may not flow in upon and damnify his neighbour. . . . So if a man has two pieces of pasture which lie open to one another, and sells one piece, the vendee must keep in his cattle so as they shall not trespass upon the vendor. So a man shall not lay his dung so high as to damage his neighbour, and the reason of these cases is because every man must so use his own as not to damnify another." Salkeld, who had been counsel in the case, reports the judgment much more concisely (?/), but to the same effect ; he says : " The reason he gave for his judgment was because it was the defendant's wall, and the defendant's filth, and he was bound of common right to keep his wall so as his filth might not damnify his neighbour, and that it was a trespass on his neighbour, as if his beasts should escape, or one should make a great heap on the border of his ground, and it should tumble and roll down upon his neighbour's, . . . he must repair the wall of his house of office, for he whose dirt it is must keep it that it may not trespass." It is worth noticing how completely the reason of Lord Holt corre- sponds with that of Brian, C.J., in the cases already cited in 20 Ed. 4. Martin, B., in the court below, says that he thinks this was a case without difficulty, because the defendant had, by letting judgment go by default, admitted his liability to repair the wall, and that he cannot see how it is an authority for any case in which no such liability is admitted. But a perusal of the report will show that it was because Lord Holt and his colleagues thought (no matter for this purpose whether rightly or wrongly) that the liability was not admitted, that they took so much trouble to consider what liability the law would raise from the admitted facts, and it does therefore seem to us to be a very weighty authority in support of the position that he who brings and keeps anything, no matter whether beasts, or filth, or clean water, or a heap of earth or dung, on his premises, must at his peril preven it from getting on his neighbour's, or make good all the damage which is the natural consequence of its doing so. No case has l)ecn found in which the question as to the liability for noxious vapours escaping from a man's works by inevitable accident has been discussed, but the following case will illustrate [y) 1 Siilk. 361. FLETCHER V. RYLANDS. 809 it. Some years ago several actions were brought against the occupiers of some alkali works at Liverpool for the damage alleged to be caused by the chlorine fumes of their works. The defendants proved that they at great expense ei-ected contriv- ances by which the fumes of chlorine were condensed, and sold as muriatic acid, and they called a great body of scientific evi- dence to prove that this apparatus was so perfect that no fumes possibly could escape from the defendants' chimneys. On this evidence it was pressed upon the jury that the plaintiff's damage must have been due to some of the numerous other chimneys in the neighbourhood ; the jury, however, being satisfied that the mischief was occasioned by chlorine, drew the conclusion that it had escaped from the defendants' works somehow, and in each lishcd that each of two mine-owners might work his own mine in the ordinary and proper wa}^ and that if, from such working, (q) 3 M. k W. 220. {u) 7 Q. B. 960. (r) 7 H. & N. 826. {x) 6 Taunt. 29. (*) 2 M. & Gr. 574. (?/) 15 C. B. N. S. 376. (0 13 C. Ji. 182. {z) 7 C. 15. 515. FLETCHER V. KYLAXDS. 815 and without negligence on the part of the one, an injury was occasioned to the property of the other, the former was not liable. That proposition is not contested ; but that case implied that if the injury was occasioned by something which was not ordinary working, the injury thereby occasioned would be the subject of a claim for damages. Here the construction of the reservoir was not an ordinary working of the property of the defendants. Baird v. WiUuimsoii completed what SinitJi v. Koi- rick had left deficient, and the two, taken together, established beyond all question the title of the plaintiff here to recover damages. Sutton v. Clarke (a) merely decided that a public functionary acting to the best of his judgment and without malice, and obtaining the best assistance he can, is not liable to a claim for damages if what he does operates to the prejudice of an individual. That case does not affect the present, except that it indirectly confirms the doctrine now contended for, namelj-, that thoi*gh the act was in itself lawful, yet if the doing of it occasions an injury to any one, the person injured has a right of action. The principle that an injury, though only consequent on an act, and not developing itself till some years after the act done, may still be the subject of a claim for damages, was settled in Backhouse v. Bonomi (h), and there the act which occasioned the injury was in itself a lawful act, and there had been nothing but the mere ordinary working of the mines ; yet, as it resulted in a mischief to the property of other people, it was held to be a subject for compensation. In Hodgkinson v. EiDiur (c) the defendant had polluted a stream by works on his own land, which works were not in themselves illegal, but they were not the natural mode of w^orking the property, and they produced a mischief to his neighbour ; he was therefore held responsible in damages. Cockburn, L.C.J., there said that it was a case in which the maxim " Sic utere tuo ut alienum non hedas'' applied • and Blackburn, J., declared " the law to be as in Tenant \. Gold- win ((?), that you must not injure the property of your neighbour, and, consequently, if filth is created on any man's land, ' he whose dirt it is must keep it that it may not trespass.' " Making a shaft to "a mme is, no doubt, a part of the proper and ordinary («) 6 Tamit. 29. (r) 4 B. & S. 229. {b) E. B. & E. 622 ; 9 H. L. C. 503. {d) 2 Ld. Raym. 1080 ; Salk. 360. 816 FLETCHER V. RYLANDS. way of working mining property, but the shaft must be so made and fenced that it shall not occasion injury to the property of others, and if not so made and kept, any injury thereby occasioned must be compensated. Williams v. Groucott (e), and Inqjerial Gas Co. V. Broadhent (/), went altogether on that principle ; so did Bamford \. Turnley(g), and Tipping n. St. Helen's Smelting Co. {h). As was said in Lambert v. Besseij (i), " if a man doeth a lawful act, yet if injury to another ariseth from it, the man who does the act shall be answerable ; " and many illustrations of the principle are there given. Every one of them justifies the argument which seeks to fix liability on these defendants. The millowners are liable here, though they employed a com- petent engineer and contractor, and were not themselves guilty of any personal negligence. The principle, qui facit per alivm facit per se, applies here, and the principal is liable for the negligence of his agent : Paley {k) ; Pickard v. Smitli (l). Mr. T. Jones replied. The Loed Chancellor (Lord Cairns). — My lords, in this case the plaintiff (I may use the description of the parties in the action) is the occupier of a mine and works under a close of land. The defendants are the owners of a mill in his neighbourhood, and they proposed to make a reservoir for the purpose of keeping and storing water to be used about their mill upon another close of land, which, for the purposes of this case, may be taken as being adjoining to the close of the plaintiff, although, in point of fact, some intervening land lay between the two. Underneath the close of land of the defendants on which they proposed to construct their reservoir there were certain old and disused mining passages and works. There were five vertical shafts, and some horizontal shafts communicating with them. The vertical shafts had been filled up with soil and rubbish, and it does not appear that any person was aware of the existence either of the vertical shafts or of the horizontal works com- municating with them. In the course of the working by the plaintiff of his mine, he had gradually worked through the (c) 4 B. & S. 149, (z) Sir T. Kcayin. 421. (/) 7 II. L. C. 600. (fc) Pr. & Ag. 202. {„) 3 ]'.. k S. 62. {I) 10 C. B. N. S. 470. (/() 4 i;. & S. 608 ; 11 H. L. C. 642. FLETCHER V. RYLANDS. 817 seams of coal underneath the close, and had come into contact with the old and disused works underneath the close of the defendants. In that state of things the reservoir of the defendants was constructed. It was constructed by them through the agency and inspection of an engineer and contractor. Personall}^ the defendants aj)pear to have taken no part in the works, or to have been aware of any want of security connected with them. As regards the engineer and the contractor, we must take it from the case that they did not exercise, as far as they were concerned, that reasonable care and caution which they might have exercised, taking notice, as they appear to have taken notice, of the vertical shafts filled up in the manner which I have mentioned. How- ever, my lords, when the reservoir was constructed, and filled, or partly filled, with water, the weight of the water bearing upon the disused and imperfectly filled-up vertical shafts, broke through those shafts. The water passed down them and into the hori- zontal workings, and from the horizontal workings under the close of the defendants it passed on into the workings under the close of the plaintiff, and flooded his mine, causing considerable damage, for which this action was brought. The Court of Exchequer, when the special case stating the facts to which I have referred, was argued, was of opinion that the plaintiff had established no cause of action. The Court of Exchequer Chamber, before which an appeal from this judgment was argued, was of a contrary opinion, and the judges there unanimously arrived at the conclusion that there was a cause of action, and that the plaintiff was entitled to damages. My lords, the principles on which this case must be determined appear to me to be extremely simple. The defendants, treating them as the owners or occupiers of the close on which the reser- voir was constructed, might lawfully have used that close for any purpose for wdiich it might in the ordinary course of the enjoyment of land be used ; and if, in what I may term the natural user of that land, there had been any accumulation of water, either on the surface or underground, and if, by the operation of the laws of nature, that accumulation of water had passed off into the close occupied by the plaintiff, the plaintiff' could not have complained that that result had taken place. If S.L.C. — VOL. I. 52 818 FLETCHER V. RYLANDS. (Lord Caiens.) he had desired to guard himself against it, it would have lain upon him to have done so, by leaving, or by interposing, some barrier between his close and the close of the defendants in order to have prevented that operation of the laws of nature. As an illustration of that principle, I may refer to a case which was cited in the argument before your lordships, the case of Smith V. Kenrick in the Court of Common Pleas (/«)• On the other hand, if the defendants, not stopping at the natural use of their close, had desired to use it for any purpose which I may term a non-natural use, for the purpose of intro- ducing into the close that which in its natural condition was not in or upon it, for the purpose of introducing water either above or below ground in quantities and in a manner not the result of any work or operation on or under the land, — and if in conse- quence of their doing so, or in consequence of any imperfection in the mode of their doing so, the water came to escape and to pass oft' into the close of the plaintifl', then it appears to me that that which the defendants were doing they were doing at their own peril ; and, if in the course of their doing it, the evil arose to which I have referred, the evil, namely, of the escape of the water and its passing away to the close of the plaintiff and injuring the plaintiff, then for the consequence of that, in my opinion, the defendants would be liable. As the case of Smith v. Kenrick is an illustration of the first principle to which I have referred, so also the second principle to which I have referred is well illustrated by another case in the same Court, the case of Baird v. Williamson (n), which was also cited in the argument at the bar. My lords, these simple principles, if they are well founded, as it appears to me they are, really dispose of this case. The same result is arrived at on the principles, referred to by Mr. Justice Blackburn, in his judgment in the Court of Exchequer Chamber, where he states the opinion of that Court as to the law in these words (o) : " We think that the true rule of law is, that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it (to) 7 C. i;. 515. (u) Ante, p. 803. (71) 15 C. 11. N. S. 376. FLETCHER V. RYLANDS. 819 escapes, must keep it in at his peril ; and if he does not do so, is prinid facie answerable for all the damage which is the natm'al consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default ; or, perhaps, that the escape was the consequence of vis major, or the act of God ; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour's reservoir, or whose cellar is invaded by the filth of his neigh- bour's privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali works, is damnified without any fault of his own ; and it seems but reasonable and Just that the neighbour who has brought some- thing on his own property (which was not naturally there), harmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his neigh- bour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there, so that no mischief may accrue, or answer for the natural and anticipated consequence. And upon authority this we think is established to be the law, whether the things so brought be beasts, or water, or filth or stenches." My lords, in that opinion I must say I entirely concur. Therefore, I have to move your lordships that the judgment of the Court of Exchequer Chamber be affirmed, and that the present appeal be dismissed with costs. Lord Cranworth. — My lords, I concur with my noble and learned friend in thinking that the rule of law was correctly stated by Mr. Justice Blackburn in delivering the opinion of the Exchequer Chamber. If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage. 52 2 820 FLETCHER V. RYLANDS. (Lord Ceanwoeth.) In considering whether a defendant is Haljle to a plaintiff for damage which the plaintiff may have sustained, the question in general is not whether the defendant has acted with due care and caution, but whether his acts have occasioned the damage. This is all well explained in the old case of Lambert v, Bessey, reported by Sir Thomas Eaymond (j9). And the doctrine is founded on good sense. For when one person, in managing his own affairs, causes, however innocently, damage to another, it is obviouslj' only just that he should be the party to suffer. He is bound sic uti suo ut non kedat alienum. This is the principle of law applicable to cases like the present, and I do not discover in the authorities which were cited anything conflicting with it. The doctrine appears to me to be well illustrated by the two modern cases in the Court of Common Pleas referred to by my noble and learned friend. I allude to the two cases of Smith v. Kenrick (q), and Baird v. Williamson (r). In the former the owner of a coal mine on the higher level worked out the whole of his coal, leaving no barrier between his mine and the mine on the lower level, so that the water percolating through the upper mine flowed into the lower mine, and obstructed the owner of it in getting his coal. It was held that the owner of the lower mine had no ground of complaint. The defendant, the owner of the upper mine, had a right to remove all his coal. The damage sustained by the plaintiff was occasioned by the natural flow or percolation of water from the upper strata. There was no obligation on the defendant to protect the plaintiff against this. It was his business to erect or leave a sufiicient barrier to keei3 out the water, or to adopt proper means for so conducting the water as that it should not impede him in his workings. The water, in that case, was only left by the defendant to flow in its natural course. But in the later case of Baird v. Williamson the defendant, the owner of the upper mine, did not merely suffer the water to flow through his mine without leaving a barrier between it and the mine below, but in order to work his own mine beneficially he pumped up quantities of water which passed into the plaintiff's (p) Sir T. liiiym. 421. (/•) 15 C. B. N. S. 376. (q) 7 V. Ji. 515. FLETCHER V. RYLANDS. 821 mine in addition to that which would have naturally reached it, and so occasioned him damage. Though this was done without negligence, and in the due working of his own mine, yet he was held to be responsible for the damage so occasioned. It was in consequence of his act, whether skilfully or unskilfully performed, that the plaintiff had been damaged, and he was therefore held liable for the consequences. The damage in the former case may be treated as having arisen from the act of God ; in the latter, from the act of the defendant. Applying the principle of these decisions to the case now before the House, I come without hesitation to the conclusion that the judgment of the Exchequer Chamber was right. The plaintiff had a right to work his coal through the lands of Mr. Whitehead, and up to the old workings. If water naturally rising in the defendants' land (we may treat the land as the land of the defen- dants for'the purpose of this case) had by percolation found its way down to the plaintiff's mine through the old workings, and so had impeded his operations, that would not have afforded him any ground of complaint. Even if all the old workings had been made by the plaintiff, he would have done no more than he was entitled to do ; for, according to the principle acted upon in Smith v. Kenrick, the person working the mine, under the close in which the reservoir was made, had a right to win and carry away all the coal without leaving any wall or barrier against Whitehead's land. But that is not the real state of the case. The defendants, in order to effect an object of their own, brought on to their land, or on to land which for this purpose may be treated as being theirs, a large accumulated mass of water, and stored it up in a reservoir. The consequence of this was damage to the plaintiff, and for that damage, however skilfully and carefully the accumulation was made, the defendants, according to the principles and authorities to which I have adverted, were certainly responsible. I concur, therefore, with my noble and learned friend in thinking that the judgment below must be affirmed, and that there must be judgment for the defendant in error. Judgment of the Court of Exchequer Chamber affirmed. Lords' Journal, 17th July, 1868. 822 FLETCHER V. RYLANDS. Sic uierc tuo ut alinmvt non loedas. Natural and oiiliiiary u.sc-r of land. This is a leading case upon the maxim, sic iitere tuo ut alienum non Icedas. The rule laid down in the judgment of the Exch. Cham., delivered by Blackburn, J., and approved in the H. L., is as follows : — " We think that the true rule of law is, that the person who, for his own purposes, brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default ; or perhaps that the escape was the consequence of vis major, or the act of God ; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The person whose grass or corn is eaten down by the escaping cattle of his neigh- bour, or whose mine is flooded by the water from his neigh- bour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali works, is damnified without fault of his own ; and it seems but reasonable and just that the neighbour, who has brought something on his own property which was not naturally there — harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour's — should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and antici- pated consequences. And upon authority, this, we think, is established to be the law, whether the things so brought be beasts, or water, or filth, or stenches ; " ante, p. 803. A i^erson is not liable for damage done to his neighbour's land, if he has merely used his land for any purpose for which, in the ordinary course of the enjoyment of land, it might be used ; see per Lord Cairns, ante, p. 817. Thus if, as the result of ordinary mining operations, water percolates into tlic mine of a neighbour, there is no liability" ; Smith v. Kenrick, 7 C. B. 515, 5G4 ; Wilson v. Waddcll, 2 App. Cas. 1)5 ; but if a person, for the convenience of working his own mine, pumps up water, and so causes a flow of water into his neighbour's mine which would not have naturally reached it, he is liable for any damage occasioned thereby ; Baird v. FLETCHER V. RYLANDS. 823 Williamson, 15 C. B. N. S. 37G ; and so also if lie diverts the course of a stream and does not make the new channel sufficient to convey all water which might reasonably he expected to flow into it, and the water consequently escapes ; Fletcher v. Smith, 2 App. Cas. 781 ; or if he taps a river running over his land so that the water flows there- from into his neighbour's mine; Crompton v. Lea, 19 Eq. 115. In Snow V. Whitehead, 27 Ch. D. 588, the defendant was held liable for damage by water which he had allowed to collect in his cellar, and which had percolated thence into his neighbour's cellar. If a man by artificiall}' raising the surface of his land, or Artificial by artificial erections thereon, not in the natural user of [^nd^^ his land, causes water to flow into his neighbour's land in a manner in which it would not otherwise have done, he is answerable for the damage caused thereby ; Hurdman v. N. E. R. Co., 3 C. P. b. 168; see Broder v. Saillard, 2 Ch. D. 692, 700. In West Cumberland Co. v. Kenyon, 11 Ch. D. 782, the defendants in sinking a shaft tapped water, which had formerly found its w'ay into their old workings and had thence percolated into the plaintiffs' mine. By a bore-hole at the bottom of the shaft which the defendants made for that purpose, the water was carried off into the same old workings, and thence it again percolated, as before, into the plaintiffs' mine. The C. A. held that the defendants had not appropriated the water so as to impose upon them the obligation of keeping it, and that, by what they had done, they had not thrown any greater or other burden upon the plaintiffs' land than it had previously borne, and that the plaintiifs had, therefore, no cause of action. In Whalley v. L. tt Y. R. Co., 13 Q. B. D. 131, an unusual Floods. rainfall caused water to accumulate against the defendants' railway embankment so as to endanger its safety. To get rid of the water they cut trenches through the embankment, with the necessary effect that the water flowed through the trenches on to the plaintiff's land on the other side of the embankment. If the trenches had not been cut the w^ater would probabl}' have percolated through the embank- ment and .so reached the plaintiff's land, but the damage done by the water coming through the trenches was much greater than the damage would have been had it been left to percolate, and the defendants were therefore held liable. In the last case, the C. A. drew a distinction between 824 FLETCHER V. RYLANDS. Distinction between keeping ont, and gettincf rid of, floods. Water accumulated for common benefit of plaintiiT and defendant. Poisonous trees. cases where a person takes steps to prevent a flood from coming on to liis land, and cases where he takes steps to get rid of the flood after it has come there. A flood is a common enemy, and before it has come into his land a person may- erect harriers to keep it off, and he is iirimd facie not responsible because the efiect of his action is that the flood goes on to another's land instead of his own ; R. v. Pagham Commissioners, 8 B. & C. 355 ; Nield v. L. & N. W. R. Co., L. E. 10 Ex. 4 ; but he must not, in erecting his barriers, interfere with a right of the other landowner ; e.g., he must not obstruct the flow of water down a river or other natural watercourse to which that landowner is entitled ; see the same cases, and R. v. Trafford, 8 Bing. 204. As to barriers against inroads of the sea, see A.-G. v. Tomline, 12 Ch. D. 214, 14 Id. 58. The principle laid down in Fletcher v. Rglands is conihied to cases where the defendant collects the water on his lands for his oivn purposes ; and it does not apply to cases where he collects it for the plaintiff's purposes as well as for his own. If two persons dwell under one roof, it is for the benefit of both that the roof be drained. Accordingly in Carstairs v. Taylor, L. R. 6 Ex. 217, where the defendant occupied the upper floor of a warehouse, and let the lower floor to the plaintiff, and a rat gnawed a hole in the box into which the rainwater from the roof was collected by gutters, in order to be carried by a pipe into the drains, it was held that the defendant, who had been guilty of no negli- gence, was not liable for the consequent escape of the water and the damage thereby done to the plaintiff's goods on the lower floor. See also Gill v. Edouin, 71 L. T. 762. Similarly, w'here several persons occupy separate parts of one house, which is supplied with water by one common system, the occupier of one part is not liable to the occupier of another for an escape of the water from his part into the other's, in the absence of negligence ; Ross v. Fedden, L. E. 7 Q. B. 661 ; Anderson v. Oppeuheimcr, 5 Q,. B. D. 602 : see Stevens v. Woodward, 6 Id. 318 ; and Ruddiman v. Smith, 60 L. T. 708. In Cnnchnrst v. Amersham, 4 Ex. D. 5, a yew tree which had been planted by the defendants upon their land grew so as to project over an adjoining close occupied by the pliviiitiff. The plaintiff's horse, while feeding in the close, ate of that ])Mrt of the tree which projected over the close, and was Ivillcd by the poison. The defendants were FLETCHER V. RY LANDS. 825 held liable in damages for the value of the horse. TJie}^ had brought upon their land something dangerous, and had, so to speak, allowed it to escape on to their neighbour's land. But if the j'ew tree, though growing close to his boundary fence, is wholl}^ upon his own land, and does not l^roject over his neighbour's land, the occupier is not liable for the death of his neighbour's horse which, by reaching over the fence, has eaten of the tree and died ; Pontinr/ v. Noakcs, (1894) 2 Q. B. 281 ; nor is the occupier liable if clippings from his yew tree have been placed upon his neighbour's land without his knowledge ; Wilson v. Newherry, L. E. 7 Q. B. 31 {post, p. 829). Where the seeds of thistles, growing naturally upon the land, were blown on to the neighbour's land and did damage, the occupier was held not to be liable ; Giles v. Walker, 24 Q. B. D. mQ. In Firth v. Boivling Iron Co., 3 C. P. D. 254, the defen- Decayed wire dant's land was fenced with wire rope, the strands of which decayed through exposure ; pieces of this rope fell upon the plaintiff's adjoining land and, being hidden by the grass, were eaten by the plaintiff's cow, which died therefrom. The defendants were held to be liable. An occupier is not liable for damage done to his neigh- Fire. hour by a fire which has originated upon his land, unless it has been caused wilfully or negligently ; but if it has been caused wilfully or negligently, he is liable ; Vaufjhan v. Menlove, 3 B. N. C. 468 ; FiUiterY. Pliipimrd, 11 Q. B. 347 ; 6 Anne, c. 31 ; 14 Geo. 3, c. 78 ; see Turhcrvil v. StamiJ, 1 Salk. 13, decided before those statutes, and Black v. Cliristclmrch Co., (1894) A. C. 48. In the case of fires caused by sparks escaping from rail- Sparks iVom way engines, the rule is that the railway company are not g^Ju^es liable for damage caused thereby, if they have statutory powers to use locomotive engines, and if there has been no negligence on their part ; B. v. Pease, 4 B. & Ad. 30 ; Vaughan v. Taf Vale B. Co., 5 H. tt N. 679 ; Hammersmith B. Co. V. Brand, L. E. 4 H. L. 171, in which the two last cases were approved ; Piggot v. Eastern Counties B. Co., 3 C. B. 229; Aldridge v. G. W. B. Co., 3 M. & Gr. 515; Smith V. L. d- S. W. B. Co., L. E. 6 C. P. 14; Fremantlc v. L. cC- N. W. B. Co., 10 C. B. N. S. 89. But if the com- pany have no express statutory powers making the use of such engines lawful, they are liable for the consequences of the escape of sparks, though tbere is no negligence on their part; Jones v. Festiniog B. Co., L. E. 3 Q. B. 733. 826 FLETCHER V. RYLANDS. Filth And the rule is the same in the case of traction engines used upon a public highway; Powell v. Fall, 5 Q. B. D. 597 ; see also Metr. Asylum v. Hill, 6 App. Cas. 193 ; and i^st, p. 828. In an old case it was held b}-^ Lord Holt that a man was liable for allowing the filth to escape from his privy on to his neighbour's land; as "he was bound of common right to keep his wall so as his filth might not damnify his neigh- bour ; and it was a trespass on his neighbour, as if his beasts should escape, or one should make a great heap on the border of his ground, and it should tumble and roll down uijon his neighbour's ; " Tenant v. Golclwin, 1 Salk. 360; see ante, pp. 806 — 808. In Humphries v. Cousins, 2 C. P. D. 239, the occupier of a house was held liable for damage done to his neighbour by sewage which escaped from a defective drain under his house, though he was ignorant of the existence of the drain, and there was no negligence on his part. And he is liable though the sewage has escaped only by polluting the water which percolated undergromid from his land to his neighbour's well, from which the water was drawn by a pump ; Ballard v. Tomlinson, 29 Ch. D. 115. See also Ilassell v. Shenton, 3 Q. B. 449 ; Womcrsleij v. Church, 17 L. T. 190. An occupier is also liable for creating on his own land, and allowing to escape on to his neighbour's land, noxious gases or fumes which injure trees or plants ; Broadhent v. Imperial Gas Co., 7 De G. M. & G. 436, 7 H. L. C. 600; Beardmore v. Tredwell, 3 Giff. 683 ; Walter v. Selfc, 4 De G. & S. 315 ; Shotts Iron Co. v. Inglis, 7 App. Cas. siS; or smoke or vapour ; Smith v. Mid. E. Co., 37 L. T. 224 ; or smells ; Rajner v. London Tramways Co., (1893) 2 Ch. 588 ; see ante, p. 268. The rule as to animals is well stated by Williams, J., in Cux X. Burbidfje, 13 C. B. N. S. 430, 438, where he says : ** I apprehend the general rule of law to be i^erfectly plain. General rule. If I am the owner of an animal, in which by law the right of property can exist, I am bound to take care that it does not stray into the land of my neighbour, and I am liable for any trespass it may commit, and for the ordinary consequences of that trespass. Whether or not the escape of the animal is due to my negligence is altogether immaterial." This statement of the law was approved of in the principal case, ante, p. 806. In Boulston's Case, 5 Co. Rep. 104a, it was adjudged that "if a man makes coney-burrows in his own Noxious vapours. Animals. Animals /era* naturcc. FLETCHER V. EYLANDS. 827 land, which increase in so great number that they destroy liis neighbour's land," no action will lie, " for they aveferce naturce, and he who makes the coney-burrows has no property in them." See Farrer v. Nelson, 15 Q. B. D. 258. The occupier of land may, by prescription, be bound rrescriptive to fence his land so as to prevent his neighbour's animals "^ coming upon it ; in such case he cannot complain of a trespass by his neighbour's animals which has arisen through his own neglect to fence; Bailey v. Appleyard, 8 A. & E. 161 ; Sinrjleton v. Williamson, 7 H. & N. 410. "While cattle or other animals domiUe naturce are lawfully Animal Ijassing along a highway, their owner is not liable for any 1^,^^^^"^^.^^,':'^°" injur}' they may do upon the highway, or upon land or other premises adjoining the highway, unless there is negligence on his part. While they are lawfully upon the highway they are not trespassing, and, in the case of property adjoining the highwa}^ the occupier must be taken to hold it subject to the risk of such inevitable injury; Tillett v. Ward, 10 Q. B. D. 17 ; Goodwijn v. Cheveley, 28 L. J. Ex. 298 ; Holmes v. Mather, L. E. 10 Ex. 261 ; see also the principal case, ante, p. 810. If, however, an animal is not lawfully upon a highway, trespassing but is trespassing, as when it has merely strayed upon the hFXway. highway, the owner is liable for the ordinary consequences of such a trespass, e.g., in a case of a horse, for its eating the herbage ; Cox v. Burhidge, supra. The owner of an animal which is trespassing is liable only Owner liable for the ordinary consequences of such trespass ; that is, for conrequeuces such damage as the animal ma}', from its nature, be expected of trespass, to do ; and he is not liable for the vicious acts of an animal of an ordinarily quiet nature unless he knew that it was vicious ; Cox v. Burhidge, supra ; Head v. Edwards, 34 L. J. C. P. 31 ; Lee v. Riley, Id. 212; Ellis v. Loftus Iron Co., L. E. 10 C. P. 10 ; see also ante, p. 804 ; and the notes to Vicars v. Wilcocks, post, vol. ii., p. 521. Apart from any question of trespass upon his neighbour's Animals of land, the owner of an animal which is not harmless in its ^, ^uowu ' natui'e, or which he knows to be vicious or dangerous, keeps to Le vicious. it at his peril, and is liable for any injury which it may do ; Filhurn v. People's Palace Co., 25 Q. B. D. 258. The law of England recognizes two distinct classes of animals. The first class consists of such animals as sheep, horses, oxen, and dogs, which the law assumes not to be of a dangerous 828 FLETCHER V. RYLANDS. Electricity. AVhere defendant has statutoiy power to use dangerous thing, negli- gence must ])e shown. nature ; and a person who keeps an animal of this class is not liahle for any damage it may do, when not trespassing, unless he knew that it was in fact dangerous. The other class consists of animals which have not heen shown by experience to be harmless by nature ; and one who keeps animals of this class must prevent them from doing injury under any circumstances, imless the person to whom the injury is done brings it upon himself; see per Lord Eslier, Filhurn v. Peojjle^s Palace Co., supra. In Nat. Telephone Co. v. Baker, (1893) 2 Ch. 186, Kekewich, J., was of opinion that a person who creates electric currents upon his own property for his own purposes, and discharges them into the earth, is liable for any damage done by the current on his neighbour's land, because he is using his land for a non-natural or extraordinary purpose. The defendant in that case, however, was held not liable in the action, because he w^as acting under statutory powers, and was not guilty of negligence. In some cases the defendants may be authorized by statute to have the mischievous thing upon their lands. In such cases the general rule is that " where the legislature has sanctioned and authorized the use of a particular thing, and it is used for the purpose for which it w^as authorized, and every precaution has been observed to prevent injury, the sanction of the legislature carries with it this conse- quence, that, if damage results from the use of such thing independently of negligence, the party using it is not responsible:" per Cockburn, C.J., Vaughan v. Taff Vale R. Co., 5 H. & N. 679, 685 ; approved in Hammersmith R. Co. V. Brand, L. R. 4 H. L. 171, and L. B. cC- S. C. R. Co. V. Truman, 11 App. Cas. 45 ; and the other cases where damage has been caused by sparks from engines, ante, p. 825; see also Poivell v. Fall, 5 Q. B. D. 597; Metr. Asylum v. Hill, 6 App. Cas. 193 ; Hammond v. St. Pancras Vestry, L. H. 9 C. P. 316, where damage was caused by sewage from a sewer ; Dunn v. Birmingham Canal Co., L. R. 8 Q. B. 42, and Evans v. M. S. d- L. R. Co., 36 Ch. D. 626, cases where water escaped from a canal; Blyth V. Birmingham Waterworks Co., 11 Exch. 781, where water escaped from a main ; Dixon v. Metr. B. W., 7 Q. B. D. 418, where damage was caused b^y a heavy flow of water from the outlet of a sewer ; Stretton v. Derhy, (1894) 1 Ch. 431 ; Rapier y. London Tramways Co., (1893) 2 Ch. 588 ; Menx v. City of London Electric Co., 42 W. E. 644, 43 Id. 238 ; Green FLETCHER V. RYLANDS. 829 V. Chelsea Waterworks Co., 70 L. T. 547 ; A.-G. v. Mctr. li. Co., (1894) 1 Q. B. 384. In Madras R. Co. v. Zemindar of Carvatenagarum, L. R. Duty imposed 1 Ind. App. 364, the defendant was sued for damage caused sfore^water.° b}' an escape of water from an ancient tank on his lands, but he was held not liable in the absence of negligence, because he did not keep the tank for his own purposes, but as Zemindar and in pursuance of a dut}', imposed by custom and recognized by law, to keep it for the benefit of agri- culture in his district. This case is akin to the cases referred to above, where powers and duties have been imposed b}^ statute. In Fh'tcJierx. Bijlands, Blackburn, J., said (ante, p. 803): Escape caused " He can excuse himself by showing that the escape was ^J!^^}li?f^ •^ ~ J- or VIS major , ovN'ing to the plaintiff's default; or, perhaps, that the escape was the consequence of vis major, or the act of God." This exception was adopted by the Exch. Cham., in NicJioIs v. Marsland, L. R. 10 Ex. 255, 2 Ex. D. 1, where it was held that the defendant, who had collected water in a reservoir upon his land, and used all reasonable care to keep it there, was not liable for damage done b}^ an escape of the water, caused by the act of God or by vis major. In that case the bursting of the reservoir was caused by an extraordinary rainfall which could not reasonably have been anticipated ; see Kitropliospliate Co. v. L. d- St. K. Dock Co., 9 Ch. D. 503, 516, as to an extraordinar}^ flood being an act of God; see also Tnrbervil v. Stamp, 1 Salk. 13. Upon the same i^rinciple it has been held that one who or b}- wrongful has collected water upon his land, and has used all reason- stian^er. able means to keep it from escaping, is not liable for damage done by an escape caused by the acts of a stranger over whom he has no control, and which he could not reasonably have anticipated; Box v. Juhh, 4 Ex. D. 76; Nichols V. Marsland, L. R. 10 Ex. 255, 259, per Bramwell, B. In Wilson v. Neivhcrry, L. R. 7 Q. B. 31, a declaration that the defendant was possessed of yew trees, the clippings of which he knew to be poisonous, that it was his duty to prevent the clippings being placed on his neighbour's land, and that he took so little care that the same were placed upon his neighbour's land, whereby the plaintifl''s horses were poisoned, was held bad upon demurrer; Mellor, J., saying : "It is quite consistent with the averments of this declaration that the cutting may have been done b}^ a stranger 830 FLETCHER V. RYLANDS. Emploj^ment of competent contractor. without the defendant's knowledge." If a man keeps cattle on imfenced land, it seems that he ought to anticipate their being driven by dogs on to his neighbour's land ; see ante, p. 804. An owner or occupier cannot escape responsibility by delegating even to competent agents the duty of precaution. "A person causing something to be done, the doing of which casts upon him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed b}^ delegating it to a contractor ; " Dalton v. Angus, 6 App. Cas. 740, 829, per Lord Blackburn ; see Bower v. Peate, 1 Q. B. D. 321 ; Tamj v. Ashton, Id. 314, 319 ; Hnrjlies v. Percival, 8 App. Cas. 443 ; Black v. Christchurck Co., (1894) A. C. 48. INDEX TO VOLUME I. ABANDONMENT, o{ action, prima facie, a good consideration, 332. "ABOUT," meaning of, 547. ACCIDENT, Bailee wlien liable for damage by, 169, ITO. See Bailments. Action of trespass for assault by, 442, 444. When, an excuse for trespass, 810. Plea of deed lost by time and, 753, 778. ACCORD AND SATISFACTION, Plea 9f, when good, 325 et seq. Of acceptance of less than due, \rhen bad, 325 — 330, 335, 339. Good, if payment made before the day, 328, 337. Or at place other than where debt 2iayable, 328. Or if claim unliquidated, 330, 331, 337. Or amount uncertain and disputed, 331, 337. Or if stranger pays with debtor's assent, 338. Qucere, whether assent presumed, Id. Or if composition accepted by several creditors, 334, 338. Or if any possible benefit to creditor thrown in, 335. Effect of stranger's act creating new consideration, 338. Effect of acquittance under seal, 327. Of acceptance of negotiable security for less, good, 332, 337. Evidence of acceptance in satisfaction, 332, 335. Of acceptance of different thing, good, 332, 337. Eeasonableness of satisfaction not generally considered, 332, 33G. Of acceptance of several for joint liability, good, 333, 337. In cases upon dissolution of firm, 332, 333. Of acceptance of new contract, when good, 336, 337, 339, Accord, to avail, must be executed, 330, 337. Unless promise itself accepted in satisfaction, Id. Executory accord generally revocable, 339. Whether an equitable defence, Id. ; see 341, 342. Effect of contract to suspend right of action, 339, 340. When pleadable in bar to action. Id. Of release with conditions subsequent, 340. Of absolute covenant not to sue. Id. None, at law, of covenant under seal, 341 ; see 325, 326. None, at law, of covenant to paj' sum certain. Id. Effect of payment being avoided in bankruptcy, 326. INDEX ACCORD AND SATISFACTION— co«it»ite(^. Eules as to satisfaction, exoneration, or discharge of liabilities, 33(> et seq. See Exoneration. ACCOUNT, Payment on, effect of, (jud St. of Limitations, 563 et seq. Effect of striking balance, 566. Stated, effect of, 332, 384. ACCUMULATIONS, Of income, common law rule against, 419. Statutes against, 419, 420. ACKNOWLEDGMENT, Of debt, effect of, qua St. of Limitations, 563, 569 — 571. Of payment, effect of, 568, 569. ACQUITTANCE, on payment of less than debt, when good, 327, 328. "ACROSS COUNTRY," meaning of, 551. ACT OF BANKRUPTCY, transfer fraudulent under 13 Eliz. is, 19. ACT OF GOD, 169, 178, 205, 218, 220, 829. See Bailments, Carrier. What is, 205. ACTION. See Case, Tresjmss, Trover. Agreement to abandon, prima facie, a good consideration, 332. So agreement to suspend. Id. Eor matters arising abroad, see Foreign Cause of Action, Jurisdiction. Pendency of foreign suit, when a ground for stay of, 623. Agreement to refer, when a ground for stay of, 341. Distinction between local and transitory, 591. See Venue. Transferable right of action on contract, party cannot create, 464. Novelty of, unless on princijile, no objection to, 258 ; see 242. Ubi jus ihi remedium, 251, 257. No right of, where no injuria, 259 et seq. Test of injury, 259, 273. Lies for every infringement of a right, 251, 257, 273. Not for damnum absque injuria; instances, 259 et seq., 266 et seq. For groundless legal proceedings, when not, 260, 261. For maliciously in'ocuring adjudication in bankruptcy, 262. Not for privileged statements, 262 — ^266. See Privileged Statements. Not against witness for perjury, 265. Not for acts of self-defence against common enemy, 266. For seduction of daughter, when not, 266, 267. For negligence causing relative's death, when, 267. Not for causing servant's death, 267. Not for setting up rival school, or trade, 267. For setting up now market near ancient, 244. For setting up an (offensive trade, when, 268, 269. For removal of support to house, when, when not, 269 — 272. For removal of supjiort to soil, 270 — 272, 273. For damage to house consetj^uent thereon, 270. TO VOLUME I. ACTIOl^— continued. Por damage to neighbour by negligent fire, 272. When not, for draining neighbour's well, 273. Or diverting underground stream, 273. For projection over another's land, beforo pecuniar}' damage, 273. For an escape of debtor taken in execution, 273. For false return, against sheriff, when not, 274. For excessive distress, when not, 274. Distinction between qualified and absolute rights, 274. Not for public nuisance, without special damage, 274. Not, where contributory negligence, 275 — 278. For damaging a nuisance, 276. For tort, where a felony, 278 — 290. Where special damage too remote, none, 280, 281. As illness caused by slander, 280. Qucere, where damage the illegal act of third party, 280. For inducing another to break his contract, 281. Against returning officer, for rejecting vote, 231 et seq. Against magistrate, 632 et seq. "The law is not apt to catch at actions," 239. " When the law will not multiply actions," 253, 274. " Terroj- of suit a damnification," 158. ACTUS CUEI^ NEMINI FACIT INJUEIAM, a maxim, instance, 342. ADEQUACY, Of considerfi,tion, not generally considered, 141, 336, 404 — 407. Except as test of lona fides, 10, 26, 29, 30. ADMINISTRATOE. See Executor, Of assignee is an assignee, 56. Part payment to person acting as, 567, 568. ADOPTION. See Ratification. Of benefit, promise implied from, \7hen, 142. ADVOWSON, proceedings for disturbing right of, 243, 244, 251, 255. AFFIDAVIT, Conviction may be quashed on, when, 660 et seq. To show want of jurisdiction to convict, 662 et seq. Perjury in, no cause of action, 265. AGENT. See Principal and Agent, Ratification. AGISTMENT, Agisted live stock, how far privileged from distress, 433. Liability of agister for negligence, 198. AGREEMENT. See Contract, Consideration, Illegality, Promise, Request. To refer to arbitration, 340, 341. See Arbitration. To suspend action, 339, 340. See Suspension, Meaning of, in Statute of Frauds, s. 4 ; 291, 310 et seq. Guarantee, 287 et seq., 310 ct seq. Not to be performed within a year, 303 et seq. S.L.C. — VOL. I. 53 INDEX AGEEEMENT— coniiH md. Written, incidents annexed to, by custom, 535 et seq. See Custom. Previous usage between j^arties to, effect of, 559. Wlien equivalent to act, in equity and in mercantile matters, 771. ALIEN, Actions by, and against, 602 et seq. See Jurisdiction. Action against, for injury on high seas, 605, 619. Plea to debt, that plaintiff alien and infidel, held bad, 579. ALIENATION, Condition against, without licence, 31 et seq. See Condition, General restraint upon, void, 416 ei seq. Eestraint upon, during coverture, equitable doctrine as to, 417. ALTERATION, Of contract in writing within St. of Frauds, after signature, 290, 300. Of bill, by filling up blanks in bill, estoppel, 473. Of date of bill after acceptance, 747 et seq. Of bill or note, material and unexplained, avoids, 780. Except as against parties consenting. Id. Case of holder in due course, where alteration not apparent, Id. Duty of taker to inquire as to apparent, 759. Effect of, on debt for which bill given as security, 781. What are material alterations, what not, 780 et seq. To be material, need not alter contract, 782. If material, fatal, though beneficial to maker of note. Id. Though made by consent, new stamp required, 783. Unless merely a correction of mistake, Id. Or made before issue. 783, 784. Effect of adding new parties, 783. Immaterial alterations, 783, 784. Holder must exj^lain apparent alteration, 784. Cancellation by mistake, 785. Of deed, when it avoids it, 749, 775, 784, 785. Burden of proof as to interlineation, 784. Cancellation by mistake, 785. Case where seal torn off by infant, 758, 768. What instruments avoided by alterations, 782, 785. Bought and sold notes, 785. Guarantee, Id. Charter-party, 786. Building contract, 786. Instrument not containing contract, 782. Alterations in fraud of holder, and against his will, 786. Altered instrument good for some purposes, 786 — 788. Pleadings in actions on altered instruments, 788. Of deed, presumably before execution, 784. Of will, presumably after execution, Id. AMBASSADOR, Goods of, privileged from distress, 436. Exempt from suit, 63u. TO VOLUME I. AMBASSADOU— continued. So is every bond fide member of embassy, G30. During exemption, Statute of Limitations does not run, G31. Registration of servants of. Id. AMENDMENT, of orders, &c., by magistrates, G45, G46. ANIMAL. See Beasts of Plough, Distress, Live Stock. Liability of owner of, for its escape, 804 — 806, 82G — 828. Question of negligence immaterial, 805, 80G, 826. Liable for ordinarj' consequences of its trespass. Id. Effect of prescriptive rights on linbilitj', 827. Liability for animal lawfully on highway, what, 80S, 827. Eor animal trespassing on highway, 827. For animal domitce nnturce, not known to be vicious, Id. For animal of vicious nature, or known to be vicious, 805, 827, 828. Owner keeping, on unfenced land, should anticipate escape, 830. Animals /ent! naturce, not distrainable, 430. What are, what are not, 430 — 432. ANNUITY, promise to jiay, to female seduced, when invalid, 144, 368. ANTICIPATION, of separate estate, by /enie covert, restraint upon, 417. APPEAL, A creature of statute, G57. Against magistrate's conviction, &c., to quarter sessions, 656. By special case under Sum. Jurisd. Act, 1857 ; 670 — 672, Under Sum. Jurisd. Act, 1879 ; 672, 673. APPEAEANCE, Dispenses with summons, 652. Cures defects in summons. Id. Warrant to compel. Id. Conviction on non-ajipearance, 653. APPOETIONMENT, Of conditions in leases, 31 et seq. See Condition. Upon severance, 49, 63, 64. ,. APPRAISEMENT, Still necessary, where growing corn, &c., distrained under 11 G. 2, c. 19; 426.' APPROPRIATION, Of payments, 38, 39, 162. To item barred by Statute of Limitations, 5G5. Of charges in account, when a payment, 666. ARBITRATION, Condition against action before award, valid, 340, 341. Agreement to refer, action to enforce, 341. When a ground for staying proceedings. Id. Arbitrator's right to be paid for ser^ices, 146. 53 2 INDEX AEEEST. Sec Sheriff, Trespass. When sheriff may break doors to arrest. See Sheriff. Of debtor already in custody under invalid writ, 114. By touching through broken pane, 109, 110. By unlawfully breaking house, semhie, void, 112, 113. Whether operates as extinguishment of debt, 113, 114. Act abolishing arrest for debt, Id. Of privileged person, when not actionable, 260. Bond to secure payment for discharge from unlawful, void, 367. ASSAULT, Common, may be compromised, 364. Abroad, action for here, 572, 605. Where damages not recoverable abroad, 620. In colony, by governor of, action for here, 572. See Governor. By accident, action for, 442, 444. Action for cuff, though it cost not so much as a little diachylon, 253. ASSEMBLY, To safeguard person out of doors, unlawful, 100. To defend house, lawful, Id. ASSENT, to act for one's benefit, presumption of, 338. ASSIGNEES, ASSIGNS, Bill of lading not mentioning, 460, 461. Of bill of lading, may sue and be sued, 739. Of leases, &c., who are, 49, 60, 61. Eights and liabilities of, on covenants, 52 et seq. See Covenants. Implied contract between, and lessee, 70, 166. See Condition, Aclviinistrator, Executor. ASSIGNMENT. See Frattdulent Conveyance. Condition against, in lease, 31 e^ seq. See Condition. What is a breach of such condition, 45 et seq. Of term, whether assignee can be tenant under, 96 — 98. Void, remedy for use and occupation, 98. Of chose in action, under Judicature Act, 466. Of life policy, assigned abroad, 614. ASSUMPSIT, 136 et seq., 169, 181. ATTOENEY, Summary jurisdiction of courts over, 301. May not allege that retainer illegal, when, 371. Statements by, when privileged, 264, 265. His privilege to lay venue in Middlesex, 600. ATTOENMENT, To landlord's assignee, principle on which it was required, 501. Had relation back to grant, 499, 501. Unnecessary, since 4 Ann. c. 16, 501 — 503. Attornment clauses in mortgages, 516 — 524, Soo Mortgacjor. AUCTIONEEE, Signature by, cfToct of, 321. Goods for sale on premises of, when not distrainable, 427, 428. TO VOLUME I. AUTHORITY. See Per Proc, Principal and Agent, Ratification. Given by laiu, abuse of, creates trespass ah initio, 127 et seq. Exceptions, 132. Nonfeasance not such an abuse of, 127, 133. Given by parti/, abuse of, does not, 1 28. Replication of abuse of authority, 127, 131. Public Authorities Protection Act, 645. AWARD. See Arbitration. Before performance, when a bar to action, 324. Condition against action before award, valid, 340, 341. AWAY GOING CROP, right to, though not mentioned in lease, 528 et seq. BAIL, in criminal case, contract to indemnify, illegal, 365. BAILEE. See Bailments. BAILIFF. See Distress, Sheriff. Mortgagor's authority to act as, for mortgagee, 504. BAILMENTS, Oui' law of, said to be taken from the Roman law, 229. To carry gratuitously, liability of bailee, 1G7 et seq. Division of, by Lord Holt, 172, 187. By Sir W. Jones, 187, 1S8. Lord Holt's, the more correct, 188. Kinds of — 1. Deposit, 112 et seq., 189. Definition of, 172, 189. No reward to bailee for, 173. Liability of bailee, 172 et seq., 189. For gross negligence, 173 — 175, 189. Though he keep the goods as he keeps his own, 189. Meaning of "gross negligence," 183 — 187. On undertaking to keep goods safely, 167 et seq., 175, 189. Bailee may not use deposit, 190. Finder of goods a depositary, Id. Larceny by appropriation, Id. Delivery of goods without request, Id. 2. Loan, or Commodatum, Definition of, 172, 190. Borrower liable for slight negligence, 175, 190. Must observe conditions of loan, Id. Not liable for vis major, 176. When liable, where goods stolen. Id. ' ImpHed promise by borrower as to his skill, 190. Of horse, who may ride, Id. Duty of lender, 228 — 230. 3. Locatio rci. Definition of, 172, 176. INDEX BAILMENTS— con^wmec?. 3. Locatio rei — continued. Duty to return thing hii-ed, 176. Lord Holt's dictum that hirer bound to utmost diligence, 177, 190. Explained by Sir W. Jones, 19i. Ordinary diligence required from hirer, Id. When not liable if goods stolen, 177. Trover against purchaser from hirer, 191. Hirer's liability for servant's acts, Id. Duty of letter, 230. Hire of goods let for immoral purposes not recoverable, 368. 4. Pawn, Vadium, Definition of, 172. Special property of pawnee, 177, 193. When pawnee may use the pawn, Id. Ordinary diligence required of pawnee, 178, 191. Loss without default does not discharge debt, Id. Liability after tender of debt, 178, 195. Pawnee's right to sell on default, 191, 192, 194. Or to sue, retaining the pawn, 192. Pawnor's right to surplus on sale, 192, 193. Liability for deficiency, 192, 197. Difference between pawn and lien, 192, 193, 195. Between pawn and mortgage. Id, Case of Clarke v. Gilbert explained, 193, 194. If lease be pledged, semble, pawnee may not sell. Id. The general property assignable by pawnor, 194. Duty to return pawn, 178, 194. When i^awnee may set up.yHS tertii, 195. Effect of pawnee parting with possession, 195, 196. Damages for conversion by pawnee, 195. Pawnbrolcers, statutory duties of, 197. Eedemption of pledges, Id. Liability for fire. Id. Powers of courts of summary jurisdiction. Id. 5. Locatio operis faciendi, Definition of, 172, 198. (1) Bailee, if employment ^:>2t?)Zic, liable for any loss, 178. Except by act of God, or Queen's enemies. Id. Liability of common carriers, 178, 199 et seq. See Carrier. Of innkeepers, 199. ^^a Innkeepers. Reason for such liability, 179. (2) Bailee, if a private person, only bound to do his best, 179. Liability of factor, 179. Of wharfinger, agister of cattle. Sec, 198, 199. Ordinary diligence required, 198. Extra exertions to bo mado, when danger arises. Id. Onus on, to show loss not by default, 199. 0. Mandatum, Definition of, 172, 227. TO VOLUME I. BAILMENTS— co7i^m«e(?. 6. Mandatum — contiinicd. Bailee liable only for gross negligence, 227. Liability same as that of depositee, Id. Eeason for such liability, 180. Trusting with goods a sufficient consideration, 180, 181. Must use skill possessed or professed, 227. Higher division of bailments, 228. Bailee, when liable in conversion. Id. When liable criminally, 190, 230. His right of action against third persons, Id. BAILOE. See Bailments. When replevin will not lie for, 228. "BALE," meaning of, 547. BANKEE, Draft on, negotiable, 455. Statutoiy protection of, in respect of cheques, 458. Keeping customer's securities, liability of, 183, 187. BANK NOTE, Passes like cash by delivery, 447 et seq. Not considered security for money, but money itself, 452, 454. Passes under a will as money, 452. Lost, action against finder, 453. Payment of, upon indemnity, 454. Stolen, action against thief or person colluding with him, 453. No action against hand fide holder for value, 447, 453 — 455. BANKEUPT. See Banl-ruptcy. Action for maliciously causing person to be adjudicated, 262. When a foreigner may be made so, in England, 607. Promise by, to pay debts from which he is discharged, 144. His qualified right to after-acquired property, 344. Goods of, how far distrainable, 433, 434. BANKEUPTCY. See Bankrupt. Transfer fraudulent under 13 Eliz., an act of, 19. Effect of a foreign bankruptcy, 618, 619. Contracts against policy of Bankruptcy Acts, held void, 370. Eecovery by his trustee of money paid by bankrupt under illegal contract, 386. When no breach of a condition against enjoyment, 46, 47. How far covenant for assigns binds trustee in bankruptcy, 47, 48. BAEGAIN, property in goods, when passes by, 148. BAEGE, Sent to another jilace, how far distrainable, 428. Liability of owner of, as common carrier, 199, 218. BAEN, May be broken open, to levy execution, 106, and Addenda. Not so, to levy distress, 106. INDEX BAEEISTER, Services of, no consideration for promise to remunerate, 145, 146. Promise to pay, not implied, Id. Statements by, when privileged, 264, 265. BASTAED, Mother of, bound to maintain, when, 145. Her representatives not bound to maintain. Id. Agreement by father to pay mother for maintaining, good. Id. Enforcement of bastardy orders, 655. BEAST. See Aimnal. BEASTS OF THE PLOUGH, Privilege of, against distress, 423, 434. Distrainable for poor rates, 434. BEDDING, when exempt from distress, 435. BILL OF EXCHANGE AND PEOMISSOEY NOTE. See Negotiable Instrument. When corporation may accept, 467. Parol acceptance of, insufficient, 450. Negotiable, if payable to bearer, 457. Or payable to order and endorsed in blank, 457. Not negotiable, while specially indorsed, 457. Eestrictive indorsement of, 457, 458. Under seal of corporation, whether negotiable, 467. Promissory note with coupons, 455. Pass by delivery to bona fide holder for value, 468 — 472. Definition of " good faith," 472. Effect of agent signing "per fjvo,'''' 471. Law as to inchoate instruments, 472, 473. Indorsement for purposes of action, 473. Oral waiver of claim on overdue, 337, 338. Effect of conflict of laws, as to, 609 et seq. French law as to effect of indorsement in blank, 610. Liability here of maker of note made and indorsed in blank in France, Id. Of English acceptor to indorsee of bill : When drawn, accepted, and payable in England, in- dorsed in blank in France, 610. When drawn in France, accepted in England, indorsed, in blank in France, 611. Title of holder depends on law where title acquired. Id. Foreign rate of interest, 611, 612. Liability of drawer, how determined, 612. Liability created by English indorsement, 613. Provisions of Bills of Exchange Act, 1882 ; 614, 615. Payable abroad, custom as to, rejected, ooo, 556. Alteration in, effect of, to avoid, 747 et seq. See Alteration. Consideration for, as between drawer and indorser, when not gone into, 683. Blank note, indorsement of, a letter of credit for indefinite sum, 703. TO VOLUME I. BILL OF EXCHANGE AND PROAIISSOEY NOTE— cowtwiwed. When issued, 784. Special acceptance of, how to bo made, 782. Indorsement, &c., of payment on, does not save Stat, of Lim., 569. BILL OF LADING. See Stoppage in Transitu. Nature of, 674 et seq., 691 et seq. Effect of indorsement in blank, 674, GSo, 702. Without " assigns," not negotiable, 460, 461. When party receiving goods under, liable for freight, 461. Assign of, to whom property shall pass, may sue or be sued on, 739. Could not formerly, 687, 739, Can now, under Bills of Lading Act, 739. OriginpJ consignor may be sued on, 739, 740. Indorsement of, by way of j^ledge, does not pass lai'operty, 739. Effect of i^ledgee taking delivery under, 740. Delivery of, to third person, a delivery of the goods, 682. Holder of, when not liable to stoppage in transitu, 674, 719, 733 et seq. Liable to, if not hondfide holder for value, 734 — 737. Pledged, stoppage in transitu subject to pledge, 734, 737 — 739. Custom of merchants as to transfer of, set forth, 702. Transfer of, where bill contains conditions, 737. Effect of making goods deliverable to shipper's order. Id. A factor could not bind principal bj' jj?ec/^e of, 693, 741. His powers under Factors Acts, 741 et seq. See Factor. Disposition of, by vendor or vendee, in possession of, 745, 746. Is the evidence of a contract of bailment, 691. Effect when goods not shipped, 740, 741. Delivery under one of several, discharges master, 697, 705. Unless with notice of another indoi"sement, Id. Distinguished from bill of exchange, 692 et seq., 740. Consignee's right to sue uiDon, 739, 740. Consignee's rights, &c., j^ass by indorsement, 740. Transfer of, after landing of cargo, 741. Terms of, restricting carrier's liability, 218, 220. BUjL OF SALE, Of personal chattels, when void, 15. Instrument giving ^wwer of distress, 523, 524. Erroneous registration of document as, not actionable, 260. BISHOP, action against, for receiving wrong clerk, 243, 244, 255. BLANKS, in negotiable instruments, 472, 473. BLASPHEAIY, contract to let room for blasphemous purpose void, 368. BOAEDING-HOUSE, not an inn, 125. BONA FIDE. See Bill of Exchange, Fraudulent Conveyance. Purchasers under 13 Eliz. c. 5, and 27 Eliz. c. 14 ; 21 et seq. Statutory definition of " good faith," 472, 734. BOND, Another bond not pleadable in satisfaction of, when, 326. For payment of certain sum, when payment of less a satisfaction, 327 et seq. INDEX BOND — continued. Good ou face, illegality of, pleadable, 355 et saq. When void for illegality, Id. See Illegality. In restraint of trade, wlien void, 391 et seq. Against alienation, when void, 419. To create a perpetuity, void, 419. Foreign government bonds or scrip, when negotiable, 455, 462. BOUGHT AND SOLD NOTES, effect of alteration of, 785. BEACTON, cited by Lord Holt, 174 et seq. BREWER'S CASKS, left on publican's premises, distrainable, 428. BRITISH SUBJECT, Born abroad, rights of, 579, 584. Alien may become, by conquest, 579. BROKER, Opinion of policy broker, when admissible in evidence, 486 et seq. Usage amongst brokers, 542 et seq. Usage to charge broker as party to contract, 543 et seq. His right to be indemnified by iirincipal, 546, 548 — 550. Customs as between broker and principal, 557, 558. Contracts by person acting as, in London, without licence, 374. BUILDING TRADE, usage of, as to payment of quantity surveyor, 546. BULL. See Animal, Cattle, Live Stock. " Our ancestors settled that it is not nature of, to gore," 804. BUTCHER, Carcase of beast on his premises, when not distrainable, 428. His meat, not distrainable, 429. BY-LAW, In restraint of trade, when valid, 393, 395, 415. A by-law against Sunday traffic, held void, 415. When actual notice of, required to bind, 205, 208. CAB OWNER, Not a common carrier of luggage, 200. In London, his Liability for driver's acts, 353. CANAL. See Carrier. CANCELLATION, of instrument by mistake, inoperative, 785. CAPTAIN, of ship, liability for loss of goods, 178, 218—220. CARMAN. Sco Carrier. Liability of, for loss, 199, 200. CARRIER. See Railway Comp(ti>y. Liability of a gratuitous carrier, not being a common, 167 et seq. Whore ho undertakes to carry safely, 182. Where ho insures safety, Id. TO VOLUME I. CABRIER — continued. Common, definition of, 199, Carrier to place out of realm may bo, Id. Carrier with unfixed termini may be, Id. Carrier of passengers only, not, 200. Carman when not, 199, 200. Cab-owner not, as to passengers' luggage, 200. Railway company when a, 200 et seq. Not of passengers, 200. Of what goods, 200, 217. Passenger's personal luggage, 201. Personal luggage, what, 202. Liable to servant for his luggage, though master paid fare, Id. Held not liable to master for injuries to servant whereby services lost. Id. Held not liable to infant en ventre sa mere, Id. Exti'aordinary liabilities of. Id. Must charge only reasonable hire, 203. Railway companies bound by " equality clauses," Id. Duty of carrier to ask questions, 203, 204. No general right to refuse goods for want of information, 204. Liable for loss or damage bj' any means, 178, 204. Except by act of God or Queen's enemies. Id. Or natural deterioration or inherent vice, 204, 205. (1) History and elfect of " carriers' notices," 205, 206. Customer without knowledge of, not bound by, 205. Carrier not protected if grossly negligent, 205, 206, 2C9. (2) Liability limited by Carriers Act, 1830; 206—210. In respect of what articles, 206. Meaning of loss. Id. Customer to declare their value and nature. Id. Carrier's right to increased charge, 207. His liability not to be limited by public notice. Id. Special contracts not prohibited by Act, Id. Effect of Act upon special contracts, 207, 208. When such may be inferred, 208, 209. When customer bound by sjiecial conditions. Id. Act leaves carrier liable for his servant's felony, 209. Who are his servants. Id. What is evidence of such felony, 210. Act protects carrier from servant's gross negligence. Id. (3) Circumstances which led to Rail. & Canal Traffic Act, Id. Efi"ect of that Act, 211—218. Meaning of " traffic," 211. Company to be liable notwithstanding notices, Id. Limitation of liability for certain animals, 211, 212, 217. Special contracts must be both signed and reasonable, 213—215. What contracts reasonable, what not, 215 — 218. Effect of reasonable alternative rate, 217. Signature by agent sufiicient, 218. INDEX CAnBlEBr-continned. Common — continued. Signature'only needed where company claims exemption, 218. Special contract against loss by theft without negligence, 212. Eights under Carriers Act preserved, Id. "Articles" includes passenger's luggage, 213. Bij water, 218—220. Common law liability of, 199. Exemption from liability always stipulated for, 218. Limitations of liability by statute, 218, 219. Conditions not extending to gross negligence, 219, 220. But shifting onus of i:)roof, 220. Implied warranty of seaworthiness, 220. His duties as to delivery, 226, 227. By land and loater, 210, 220, 221. Eailway Eegulations Act, 220, 221. Who should sue carrier, 221, 222. Buyer cannot sue, if sale invalid by Statute of Frauds, 301. What is, primd facie evidence of negligence, 222. Pleadings in actions against, 222, 223. Action whether in " contract " or " tort," 223. Carrier's duty as to delivery. Id. Duration of his liability as carrier, 223, 224. Eailway Coy., when liable for goods beyond their own line, 224. or for passengers, Id. Carrier's duty at end of transit, 224, 225. His duty on consignee's refusal to receive, 225. His liability as to goods warehoused by him, 225, 226. CASE, Action on the, invention of, 257, 258. To support, both damage and injury must concur, 236, 242, 252. Distinction between case and trespass, 438 et seq. See Trespass. CASH, Property in, passes by delivery, 447. Bank-notes are, 447 et seq. See Bank Note. CATTLE. See Animal. Agister of, his liability, 198. When not distrainable, 423, 429, 434, 435. CEETIOEAEI, lies unless taken away by statute, 657. Privilege of Crown as to, 658. Writ of, described, Id. Only mode of removing conviction into Q. B. D. to reverse it, Id. Not granted as a matter of course, 659. Where iipplicant a party aggrieved, Id. When not granted in cases of defect of jurisdiction, 668. liics, unless special clause prohibits, 667. Lies, though special clause, whore no jurisdiction, Id. But not where only irreg. exorcise of jurisdiction, 667, 668. TO VOLUME I. CERTlOUMil— continued. To remove convictions or orders, 659. Motion for within six months, Id. After six days' notice in writing, Id. Proceedings to obtain the writ, 659, 660. Proceedings on the writ, Id. No ajiiJcal to C. A. in criminal cases, 660. Convictions and order may be (j^uashed on, when, 662 et seq. Though good on the face of them, 662, 663. On affidavits of want of jurisdiction, 662 et seq. That not by a court, 664. Not by magistrates, 663, 664. By interested magistrates, 663. Sitting out of jurisdiction, 664. Preliminaries to jurisdiction wanted, Id. No evidence of some essential facts, 664, 665. St'cus, where evidence conflicting, 665. Ouster of jurisdiction, 665 — 667. Misdecision of question on which jurisdiction tui'ns, 666. On affidavit of fraud, 669. Not on merits of decision, 660, 670. Effect of clause in statute taking away certiorari, 667. Distinction between want of jurisdiction and irregularity in exercis- ing it, 667, 668. Court not bound to entertain objection to jurisdiction, 668. Not required, to remove case stated by quarter sessions, 661. Not granted where other tribunal of appeal, 669. CHAMPERTY. See Maintenance. Cases as to, 371. CHANCERY, cause of growth of jurisdiction of, 360. CHARITY, voluntary endowment of, not within 27 Eliz. c. 4 ; 30. CHARTER-PARTY, Terms of, limiting liability, 218. Terms of, explained by usage, instances, 547, 554. Avoidance of, by alteration, 786. CHATTELS, Parol gift of, without delivery, passes no property, 148. On transfer of, condition against alienation void, 417. Covenant will not run with, 54, 89. Recaption of, 135. Mortgage of, bj' parol, 194. CHEQUE. See Bill of Exchange, Negotiahle Instrument. A negotiable instrument, 455, 457. Effect of crossing, 457, 458. Statutory protection of bankers as to, 458. CHILD, Contributory negligence by, 275. Contributory negligence by its attendant, 278. Maintenance of, 144, 145. INDEX CHOSE IN ACTION. See Bill of Lading, Negotiahle Instrument. Fraudulent transfer of, when within 13 Eliz. c. 5 ; 23. Former rule against assignment of, 769, 770. Assignment of, always a good consideration, 770. Assignment of, under Judicature Act, 140, 141, 466. Assignment abroad of, 614. CHUECH, no damages at common law for value of, 244. CHURCHWAEDEN, action against, for maliciously rejecting vote for vestryman, 284. CLAIM. See Accord and Satisfaction, Exoneration. Settlement of supposed, when a consideration, 331. CLEEGYMAN, action against, for not performing marriage service, 231. CLEEK OF THE PEACE, no mandamus to, to correct minutes, 662. CLOAK-EOOM. See Railivay Company. CLOTHES, Wearing apparel, when exempt from distress, 435. Pawnee of, must not wear, 177. COFFEE HOUSE, not an inn, 125. COLLATEEA.L, Covenant, when does not run with land, 54, 60. See Covenants. Agreement, instance of, 287. 1st branch of s. 4 of Statute of Frauds only relates to, 287, 291. Agreement to refer, when, 341. Security, a pawn is a, 192. COLLISION, on highway, or sea, negligence is gist of action, 809, 810. COLONIAL LEGISLATUEE, rights claimed by, analogous to those of House of Commons, 286. COLONY, Action here against governor of, for inj^iry there, 572 et seq. Effect of Act of indemnity there, 605, 606. Action against him in colony, 623, 624. COMITAS GENTIUM. See Fi>rci(jn Cause of Action. Transitory causes of action arising abroad triable here, 572, 602 et seq. Cause of action governed by lex loci, 609. Procedure governed by lex fori, 609, 619, Limitation of time for suit, a matter of procedure, 615 — 618. Distinction where right extinguished, 616, 617. Eules of evidence go only to procedure, 621, 622. Statute of Frauds goes only to procedure, 622. Locus regit actum, a canon of jurisprudence, 608. Illustrations of maxim, 608 et se(/. Enforcomont of foreign judgments, 60S, 620. TO VOLUME I. COMMAND, Doctrine that ratification equivalent to, 347 et scq. When traversable, 344, 347. COMMERCE. See Trade. COMMON CAERIEE. See Carrier. COMMON COUNTS. See Money Paid. Money lent, allegation of request unnecessary, 141. Secus, as to money paid. Id. Instance of demand prima facie liquidated, 331. Account stated, effect of, 332. COMMON ENEMY, Act of self-defence against, wlien not actionable, 2GG, 443, 445, 446, 824. Inroads of sea may be repelled as, thougli damage result to others, 266. A flood is a, 824. COMMON HOYMAN. See Carrier. His liability, 178. COMMOI? LAW, the, is "statutes -worn out by time" (Wilmot, C.J.), 857. COMMONER, remedies of, for obstruction to his right, 134. COMPANY. See Corporation, Illegality, Raihoay Company. . Goods of comjDany in liquidation, how far distrainable, 433. COMPETITION, no action between traders for damage by, 267. COMPLAINT. See Information, Justice of Peace. COMPOSITION, With creditors, when binding, 334, 335, 338. Held to be no satisfaction of debt, 327. COMPOUNDING FELONY. See Illegality. Illegalitj^ of bond for indemnity for, 355. COMPROMISE, Of criminal proceedings, illegal, 364. Exception in case of common assault. Id, Of election petitions, illegal, 365. So, of proceedings against solicitors, Id. Payment by way of, by party not legally liable, 331. By surety, 149. CONCEALMENT. See Insurance. Cicero's definition of, 478. Of nature of goods delivered to carrier, 201, 203, 204, 205, 206. By sender of dangerous article, 229, 230. CONCESSI. See Grant. INDEX CONDITION, In lease, against assignment ivithout licence, 31 et seq, formerly determined by one licence, 32, 3G. Though, licence particular, 32, 34. Or lease to two, and licence to one, 32. Or licence only as to part of the land, 32, 33. Entire, formerly not apportionable by act of parties, 33. Now, so apportionable, by statute, 33, 49. By statute, a licence operates only^:>ro Jiac vice, 35. Given to one of several lessees, affects only his interest, 35. In respect of part of the land, does not affect residue, 35, By statute, a waiver operates only_2;ro hac vice, 35. At common law, parol licence ineffectual, if condition requires writing, 35, 36. Forfeiture for, waived by acceptance of rent, when, 36 — 39, 44. Wbat forfeitures thereby waived, what not, 39. Acceptance of rent evidence of election to continue lease, 38. Election once made, cannot be retracted, 38. Inference of election, how rebuttable, 38. Not by showing that rent was accepted under protest, 38, 39. Question is whether rent was accepted as rent due under lease, 39. What other acts waive forfeitures, 37. Waiver by distress for rent, 40. Enforcement of forfeiture, no waiver of rent due before forfeiture, 40. Old distinction as to waivers between leases void on breach, and leases voidable, 40, 41. Now unimportant, owing to construction put on forfeiture clauses, 41—43. Entry for breach of, wbat sufficient, 43. Action to recover possession, now equivalent to entry, 44. After election to treat lease as determined, receipt of rent no waiver, 44. But may be evidence of new tenancy, 44. Old distinction between waiver of forfeiture for underletting and for assigning, 44. Continuing breaches, not waived by receipt of rent, 45. What are, what are not, 45. When licence to commit may be presumed, 45. Against alienation, what is a breach of, 45, 46. Assignment by operation of law, not, 46. As, by bankruptcy, or seizure in execution, 46, 47. Unless expressly mado a breach, 47. Or by marriage, 47. Quxvre, whether a devise is a breach, 47. Who are bound, if the condition names "assigns," 47. Executors and administrators, 47. Position of trustees in bankruptcy, 47, 48. Condition not to assign, in lease to a man and his assigns, 48. Not to assign without consent, consent not to be unreasonably with- held, 48. Condition against assignment not inserted without express stipula- tion, 49. TO VOLUME I. CO'i^BlTlON— continued. Conditiou for re-entry on breach, not implied, 49. Maj' be reserved for breacb of tiegative covenants, -19. Meaning of " perform," 49. Assignee of reversion, right to enforce forfeiture, 49, 50. Severance of reversion, apportionment of condition, 49, oO. Notice before enforcement of forfeiture, how far necessary, 50. Relief against forfeiture, in equity, 51. Under statutes, 51. Apportionment of, on severance, 63, 64. CONDITION PEECEDENT, to action, reference to arbitration may be, 340, 341. CONFESSION, on information, dispenses with proof, 053. CONFLICT OF LAWS. See BiU of Exchange, Foreign Cause of Action. CONSENT, whether implied, to act done for one's benefit, 338. CONSIDERATION, Only a valuable a good, within 13 Eliz. c. 5 ; 3, 8, 9. Of rMture, or of hlood, not good. Id. A past debt is a good, within the Act, 2, 16. Inadequacy of, how far a test of bona fides, 10, 26, 29, 30. Otherwise immaterial, 141, 336, 404 — 407. May be proved, though at variance with deed, 29. Exaggeration of, in bill of sale, was not necessarily fatal, 13. Executed or executory, distinction, 137. Executory, involves request, 139. Must move from plaintiflF, Id. His intervention in agreement sufficient, Id. Intervention by trustee for him, 139, 140. Money paid by A. to B. lor C, when recoverable by C, 140. Executed, if at previous request, supports promise, 137, 141. Voluntary courtesy not a sufficient. Id. Promise after service at request, when a Id. Labour, or endeavour, at request, though fruitless, a, 136. When request may be implied, 141 et seq. See Request. Mere moral obligation, however sacred, not a, 143. Debt barred by Statute of Limitations, a, Id. Debt barred bj^ bankruptcy, no longer a, 144. Past cohabitation, not a good. Id. Past gratuitous services and mere hope of future, not a, Id. Mainienance of deserted child, not a, unless at request, 144, 145. Future maintenance of children, a good, 145. When exhausted by implied promise, 147. Debt payable now not a, for promise to pay in futuro, Id. But debt payable //; futuro held a, for appropriation of funds to secure debt, 148. Distinction between executed transfer and executory promise. Id. Parol gift of chattels without delivery void for want of. Id. Doing under compulsion what another bound to do, when a, 142, 149 et seq. S.L.C. — VOL. I. 54 INDEX GONSID-ERATION— continued. Forbearance to sue, a, 295, 332, 334. Withdrawal of plea, a, 332, 337. Settlement of disputed claims, a, 331. Substitution of several for joint liability, a, 333. Not required for discharge from parol contract, 336, 337. For guarantee, need not be in writing, 292, 318. Intrusting with goods may be a, 180, 181, 182. Undertaking gratuitous service, when a, 181, 182. Partial illegality of, avoids all the promises, 372. Seem, if one of several considerations merely void, 373. Distinction between void and illegal, 376. Service under void deed of apprenticeship held a, 375. Not required for deed, 376, 406. Except where deed imposes restraint of trade, 391, 394, 406. See Contribution, Indemnity, Landlord and Tenant, Principal and Agent, Partners, Surety, Wrong-doers. CONSIGNOR AND CONSIGNEE. See Bill of LadirKj, Carrier, Sale, Stoppage in Transitu. Consignee's lien in respect of advances, 745. CONSTEUCTION, Of written judgment, question forjudge, 560. According to lex loci contractus, when, 608, 609. CONTRA PACEM, allegation of, in action of trespass, 589, 590. CONTRABAND GOODS, Seizure of, after demand, 109. CONTRACT. See Agreement, Custom, Stnfvte of Frauds. Tendency should be to uphold and effectuate, 336. Under seal. See Deed. Consideration for. See Consideration, Exoneration from, parol, without considei'ation, 336, 337. In restraint of trade. See Pestraint of Trade. Illegal, 355 et seq. See Illegality. Action for inducing party to break, 281. Involving breach of contract with when binding, 375. Of sale, property in goods when passes by, 148. When payment of price a condition precedent to delivery, 695, 708. Imi^lied, of indemnity, between lessee and assignee, 70. Between buyer and seller of shares, Id. See Indemnity. Foreign, construed by law of country where made, 608, 609, 615. Case of bills of exchange, 009 — 615. See Bills of Exchange. Procedure on, according to lex fori, 615 et seq. Limitation of time for suit, lex fori, 615 — 618. Statute of Frauds, lex fori, 622. CONTRACTOR, Kmidoyment of competent, no defence, when, 789 et seq., 800, 830. CONTRIBUTION. See Indemnity. Inter se between co-sureties, or joint-contractors, lol et seq. Right to, when it accrues, 151. TO VOLUME I. CO'^TRlBHTlON—continncd. Right to, under 19 & 20 Vict. c. U7 ; 1.53, 154. In equity, solvent sureties contribute to whole extent, LjI. Actual payment unnecessaiy, 152. Right to securities taken by co-surety. Id. When recoverable from rcpresentatires of co-contractor, Id. From co-partner, only recoverable in Chancery, 153. None between joint wrong-doers, 154, 3(S2 et tseq. See JUrfjalitij, Qualifications of rule, 154 — 156, 390. Amongst persons employing agent for common benefit, 152. None between sub-lessees, by separate demises, of different parcels, 158. CONTRIBUTORY NEGLIGENCE, Doctrine of, 275 — 278. See Necjligencc. CONVERSION, Liability of bailee for, 228. By pawnee, measure of damages, 195. By vendor, 191, G95. CONVEYANCE. See Alienation, Frauort. Draining of well, when, 273. Test of injury, 273. If injury, damage presumed, 273, 274. Why actual damage sometimes necessary to support action, 274. Special damage necessarj-, where injury a public grievance, 274. Damage must not be caused by contributory negligence, 275 — 278. Damage from felony, whether private remedy suspended, 278 — 280. Express exception under Lord Campbell's Act, 280. Damage must not be too remote, 280. e.g. Sickness from slander, 280. QacBre, where damage the illegal act of third person, 280, 281. Possibility of, may sometimes be sufficient, 244, 273. Direct and consequential, importance of distinction between, 445, 446. Measure of, where landlord trespasser ah initio, 132. In action for irregularity in distress, actual must be proved, 132. In trover for goods sold, price unpaid to be deducted, 695. For conversion of pawn, 195. In action by bailee for injury to goods, 230. DAMAGE FEASANT, things taken, not distraiuable, 432. DANBY, C.J., After removal from bench, pi\actised at bar, 174. Restored to bench. Id. DANGER, Damage by incurring, with notice, when actionable, 275, 276. Liability of owner for damage done by dangerous goods, 204, 229. Liability for escape of dangerous thing, 789 et seq. DATE, I'rosumption as to, of letter not produced, 354. Impossible date, when rejected, 654. DEATH, action for causing, by negligence, 267. DEBENTURE, under seal ot company, whether negotiable, 46o — 465. TO VOLUME I. DEBT. See Accord and Satisfaction, Creditor. Payable uow, no consideration for ijromise to pay in futuro, 147. Discharge from, 337 et scq. When not extinguished by loss of pledge, 191. Whether extinguished by seizure under ^. /((., 113. Effect of seizure for, under ca. sa., Id. Abolition of imprisonment for, 114. May be assigned, 7G9. See Chose in Action. DECEIT, effect of deceiving sheriff, 107. DECISION, dismissal of appeal for want of jurisdiction, held to be, 644. DEED. See Fraudulent Conveyance. Liability under, how discharged, 341, 342. At luiu, parol licence, no defence, 341. Accord and satisfaction before breach no defence, Id. Payment after breach, no plea to debt on, Id. Effect of 4 Ann. c. 16, Id. Parol extension of time for performance, 342. Equitable defences to action on, 341, 342. lUegalitj'' of, pleadable in action on, 355, 363. See Illegality. Effect of, passing estate for illegal purpose, 389. Of corporation, when ultra vires, 378 et seq. See Corporation. Effect of statutory disability on one grantor of a joint deed, 3S2. Was the usual form of agreement, 757. Lost or burnt by accident, evidence of contents of, 753, 778. Alteration of, 749, 775, 784, 785. See Alteration. Presumably before execution, 784. Not affected by Statute of Frauds, s. 4 ; 299. DEEE. Whnn distrainable, 430. Action of waste for feeding, 430. DEFAMATION. See Privileged Statements. Damage, when too remote, 280. By '' riding Skimmiugtcn," 256. DELAY of Court, Court does not suffer parties to be injured by, 326, 342. DELIVEEY, Of negotiable instrument, or cash, when passes property, 447 et seq. Gift without, void, 148. When property in goods passes on sale without. Id. Without request, raises no duty, 190. DELIVERY ORDER, a document of title, 742. DEPOSIT. See Bailments. DEVISE, Quitre, whether a breach of condition against assignment, 47. Devise in remainder an assign, 61. INDEX DILIGENCE. See Negligence. Different degrees of, required from bailees. See BaiJnients. DISCHAEGE. See Exoneration. From liabilitj', modes of, 336 et seq. From liability, oral without value, 336, 337. DISSOLUTION, of partnership, deed of, when void against creditors, 19. DISTANCE, mode of measuring, 404. DISTEESS. See Landlord and Tenant, Rent. Distress in effect a pledge, 177. Abuse of right of, made it a trespass ah initio, 131, 132. Damages, value of goods without deducting rent, 132. When it does not, 132. In case of landlord, relief by 11 Geo. 2, c. 19; 132. On distress for poor rates, by 17 Geo. 2, c. 38; 132. Tender before distress, makes distress tortious, 130. Tender after distress, but before impounding, makes onlj- detainer tortious, 130. Tender after impounding, bad at common law, 130. Tender within five days of taking now makes detainer tortious, 131. Tender without expenses, after warrant issued, but before its execu- tion, good, 131. How to recover goods after return irreplevisable, 131, 133. In action for irregularity in, actual damage must be proved, 132. No action for excessive, when, 274. Landlord may enter house to distrain, 102. But may not break outer door of any building, 106. K forcibly ejected after entry, may break in, 106, 109. What is an entry without breaking, 108, 109. Tenant, threatened with, by superior landlord, may pay the rent, 156 et seq. Demand of rent, a threat of, when, 157. Eent paid under, when recoverable from party primarily liable, 156 et seq. Effect of holding distress, on right of action for rent, 340. Things privileged at common, law — - Things absolutely privileged — 1. Things annexed to freehold, 423, 426. Growing corn, &c., distrainable by statute, 426. Fixed machinery, when distrainable, 426, 427. 2. Things delivered in way of trade, 423, 427 — 429. Instances within rule, 427, 428. Instances not within it, 428, 429. ^Machinery delivered to work with, how far privileged, 429. 3. Things which cannot bo restored in same plight, 423, 424, 429, 430. Sheaves of corn, &c., distrainable by statute, 423, 429, 430. Money, 430. 4. Things in actual use, 424, 430. 0. \inmii\8 feral naturce, 430 — 432. Deer, when distrainable, 430. Dogs, whether distrainable, 430 — 432. TO VOLUME r. DISTRESS— continued. Things privileged at common hnv — continued. Thiugs absohiteli/ privileged — continued. 6. Things in custodj' of law, 432 — 434. Things taken da mage feasant, or in execution, 432. Statutory rights of buyer from sheriff of produce to be con- sumed on i)reiiiises, 432. Landlord's statutory rights where goods seized in execution, 432. Receiver, goods in hands of, 432, 433. Insolvent companies, statutory protection for goods of, 433. Bankrupt, statutory protection for goods of, 433, 434. Things conditionaU u privileged — 1. Beasts of plough, beasts which improve land, 423, 434. 2. Implements of husbandry, tools of trade, 423, 424, 434. Kot privileged, if there be no other sufficient distress, 434. Or where there are onlj- things distrainable by statute, 434. Privilege by agreement with landlord, 434. Cattle, straying, when privileged, 435. On way to market, privileged, 429. Goods of tenants in common under separate demises, 437. Things privileged by statute — Wearing apparel, bedding, tools, up to 5/., 435. In case of agricultural holdings — Machinery hired for tenant's business, 435. Live stock hired for breeding purposes, 435. Agisted live stock, partially privileged, 435, 43G. Lodger's goods, when protected, 436. Foreign ambassadors, &c., goods of, 436. Hired railway rolling stock, 437. Ga'S, water, and electric meters, &c., 437. Machinery delivered to work with, how far protected, 42f>. Produce consumable on premises, after execution, 432. Insolvent comi^any, goods of, how far protected, 433. Bankrupt, goods of, how far protected, 433, 434. Notice of distress, effect of, 427. Notice of, landlord not bound by his, 497. Must be in writing, 497, n. Need not state when rent fell due, 499. By receiver under mortgage deed, 522, 523. DIVIDEND WAERANT, whether negotiable, 459. DIVISIBILITY, Of contract partially illegal, 371, 372, 413. One illegal consideration avoids whole contract, 372. Of conviction, when part bad, 653. DOCK, liability of owner of, for damage to ship, 198. DOCK WAERANT, A document of title, 742. Whether negotiable, 455. DOCTOR, right of, to recover fees, 146. INDEX DOCUMENT OF TITLE, What is, 742. How transferable, Id. Dispositions of, by mercantile agent, 741 — 745. By vendor or vendee, 745, 746. DOG. See Animal. Whether distrainable, 430—432. Trespass or trover for, 430. Not a subject of tithes, 431. Battery in defence of, justifiable, 431. Not a subject of larceny, at common law, 431. Theft of, punishable by statute, 431. How far " goods " or " chattels," 431. DOMESTIC ANIMALS. See Ajiimal. Instances of animals not, 432. DONKEY, on highway, the case of, 275, 276. DOOES, breaking doors. See Sheriff, Distress. DORMANT PARTNER, right of, to indemnity, 156. DRAFT ON BANKER, negotiability of, 455. DUPLICATE of pawnbroker's ticket, larceny of, 197. DWELLING-HOUSE. See House. EJECTMENT, ACTION OF, Sheriff may break house, to deliver possession in, 100. Plaintiff must recover by strength of his own title, 345. By grantee of conveyance, grantor cannot plead his own fraud, 389. Bj' mortgagee. See Mortgagor and Mortgagee. Right to possession the only question in, 513. Venue formerly local in, why, 589. When entry may be made without bringing, 133. ELECTION, Once made and expressed, cannot be retracted, 38. To treat as tort-feasor or tenant, 509. By tenant to deduct land-tax from rent, 164. ELECTOR. See Returning Officer, Voter. ELECTRICITY, liability for escape of electric current, 828. EMBLEMENTS, Occupation in lieu of, 534. Tenant for fixed term generally not entitled to, Id. Mortgagor and his tenants, not entitled to, 495, 502, 526. ENTIRETY. See Divisibility. ENTRY, For a forfeiture, what sufficient, 43. Estate which began by livery detei-minablo only by entry, 41. TO VOLUME I. ENTRY— continued. Lessee for yeai'S cannot bring frcspin^.t, before, 513. By right, and holding over without right, creates tenancy at suffer- ance, o2G. Eight of, may be enforced by peaceable, 133. AVithout ejectment, 133. Liability for assaults, &c., in making forcible, 133, 13-1. To take goods, when justifiable, 135. On taking from Old Lady-day, by custom, 535. EQUITABLh] DEFENCE, Now available in ail branches of High Court, 339, 342. Agreement to suspend right of action, whether an, 339. EQUITABLE DOCTRINE OF NOTICE, 85 d seq. EQUITY, Eules of, to prevail, if in conflict with law, 152. Equitable jurisdiction in personam, 603. Eelief in, against forfeitures, 51. Notice taken of an, at law, 771. " The law merchant a system of," Id. EEEOR, , A writ of right, 281. Except in treason and felony, 281. Does not lie on a conviction by magistrate, 658. ESCAPE, retaking on, 106, 109, 110. ESTOPPEL. Nature of an estoppel, 91. Estate by, fed by an interest, becomes one in interest, 92, 93. Where truth appears by same instrument, 93 — 95. Where pleadings disclose the truth, 95. None, against A.e\\ym^parficuJur estate laid in lessor. Id. Unless, according to terms of lease, he has that estate, Id. Against lessee, though lessor's title does not appear, 95, 96. Assignee of reversion by, may sue on covenants, 91, 92. Though assignment discloses want of title, 92. Covenants will run with an estate by, 91 et seq. Tenant estopped from disputing landlord's title, 503, 505, 507. Eeceipt does not work an, 328. Instrument negotiable by, when, 465, 466. By signing negotiable instrument in blank, 473. EVIDENCE, Of custom, to explain, &c., written instrument, 528 et seq. Parol, inadmissible to vary written instrument, 292, 535 et ?eq. Exception, to rebut fraud, 13, 29. Inadmissible to explain word defined by statute, 551, 552. Opinion, when admitted as, 486, 487 et seq. See Witnes'>. Governed by lex fori, 621, 622. Indian registration law not mere law of, 621. Judgment conclusive in, of facts stated therein, 641. So conviction, Id. See Conuidion. INDEX EVIDENCE— coHi^■/^»ec^. Conviction when bad for want of, 664, 665. Presumption against party withholding, 342, 353. Of request, what suiBcient, 147. Of loss by carrier, 222. EXCEPTION, in Act creating ofience, whether to be negatived, 651. EXCHEQUER BILL, negotiability of, 455. EXECUTED AND EXECUTORY. See Consideratwn. EXECUTION. See Fi. fa., Sheriff. When good, though by trespass, 111 ei seq. When dwelling-house may be broken to levy, 99 et seq. Barn or outhouse may be broken to levy, 106, and Addenda. Liability of sheriff, when execution set aside for illegality, 113. To defraud creditors, void within 13 Eliz. c. 5; 19. Sale to defeat exq^eded, when good, 18. Seizure of lease, whether breach of condition against assignment, 46, 47. Distress of things taken in, 432. See Distress. EXECUTOR AND ADMINISTRATOR, Conveyance by, when void against creditors, 22. Whether boiand by conditions against assignment, 47. Are assigns, 47, 56. Executor de son tort, an assign, 47. Ratification by, 350. Part payment or acknowledgment by co-executor, 563. Debt on simple contract maintainable against, 414. EXETER, custom of, as to horse at livery, 119. EXONERATION AND DISCHARGE. See Accord and Satisfaction. 1. From claims not under seal, 336 et seq. By oral waiver before breach of contract, 336, 337. Without consideration. Id. For less than agreed, 337. Of unliquidated overdue claim, by payment of less. Id. So, of uncertain and disputed overdue claim. Id. Of liquidated overdue claim, by payment of different thing. Id. By negotiable instrument. Id. By substitution of several for joint liability, Id. Of bill of exchange or note, before due, by waiver, 337, 338. By act of third i)arty, though claim liquidated, when, 338. By payment by third party, with debtor's assent, Id. By composition with creditors. Id. By promise accepted in satisfaction, 339. Distinction, Id. By executory accord, whether, 336, 339. By covenant not to sue, 339, 340. 2. From claims on instrnments under seal, 325, 326, 341, 342. Could not be by accord and satisfaction before breach, 341. Nor after, unless sounding in damages, Id. Payment on day and uc(iuittunco, when required. Id. Effect of Judicature Acts, as to equitable defences, 342. TO VOLUME I. EXPERT. See Witness. EXTINGUISHMENT, Of debt by seizure iiiulery^. fd., 113. By alteration of instrument, 781. Of right of action once susjwnded, 339, 340. Of liability on contract, 336 et seq. See Exoneration. Of liability on covenant, 3il. See Deed. FACTOR, His liability to his principal, 179. Usage to sell in his own name, 542. Principal bound by sale bj', 741. Formerly not by pledge by, 093, 741. Effect of Factors Acts, 741 — 745. FALSE IMPRISONMENT, in colony, [action against governor of, 572 et seq. FATHER, Promise by, to pay for support of deserted child, not implied, 144, 145. Express promise by, to pay for support of child, good, 145. Not liable in law for child's debts. Id. Action for daughter's seduction, when maintainable by, 266. FELONY, Conveyance after felony, when void, 6, 18. Breaking into house to arrest for. 111. By carrier's servants, 209, 212. Compounding felonj^ illegality of, 355, 364 et seq. When cause of action, a, 278 — 280. FERRY, Carriers by, liability of, 169, 204, 224. Damage to, bj' opening of bridge, not actionable, 267. FICTION OF LAW, In laying venue, 591. In dating writs. Id. When it may be contradicted, when not, Id. FI. FA. See Execution, Sheriff. Seizure under, effect of, on debt, 113. FILTH, Liability for escape of, on to neighbour's land, 803, 806 — 808, 826. For sewage escaping from unknown drain, 826. For sewage polluting water percolating to neighbour's well. Id. FINDER, . His rights against third parties, 343. His liability to true owner, 178, 190, 453. Of bank-note, action against, 453. When guilty of larceny, 190. S.L.C. VOL. I. 55 INDEX FIRE. See S^parhs. Pawnbroker's liability for loss by, 197. Carrier by sea not liable for loss hy, 2 IS. Liability of bailee for loss by, 169. Damage to neighbour by, when actionable, 272, 825. Deed burnt with house, parol evidence of contents, 778. FIXTURES, Not distrainable, 423, 426, 427. "What, may be taken in execution, 426. FLOODS, A common enemy, 824. Distinction between keejiing out and getting rid of, 823, 824. Extraordinary, may be " act of God," 829. FORCIBLE ENTRY, to what civil actions it may give rise, 133, 134. FOREIGN ATTACHMENT, against buyer, does not defeat stoppage m transitu, 733. FOREIGN BANKRUPTCY, effect of, 618, 619. FOREIGN CAUSE OF ACTION, Local, excluded, 602, 603. Notwithstanding abolition of local venues, 602. Actions, where title to foreign land in dispute, not entertained, Id. Except sometimes in equity, thi'ough jurisdiction in personam, 603.. Transitory actions generally entertained, Id. Possible exception where parties aliens not domiciled here, 604. Contracts must not violate English law, 605. Torts must be actionable in both countries, 605 — 607. Necessity for service of process, 607. Locus regit actum, a canon of jurisprudence, 608. Foreign judgments, 608, 620. Maritime contracts, 608, 609. Cause of action governed by lex loci, procedure by lex fori, 609, 615. Instances of rule as to lex fori, 619 et seq. Effect of conflict of laws as to bills of exchange, 609 et seq. See Bill of Exchange. Effect of Statutes of Limitations, 615 et seq. Story's rule considered, 616, 617. What a discharge of a foreign cause of action, 618. Evidence governed by lex fori, 621, 622. Indian registration law not mere law of evidence, 621. Statute of Frauds affects procedure only, 622. Foreign law, how ascertained, 622, (523. In absence of proof, presumed identical with English, 623. Pendency of foreign action, when ground for stay, Id. Contracts made abroad, if sued on here, affected by s. 4 of Statute of Frauds, 297, 622. FOREIGN INSTRUMENT, When negotiable.' in this country, 462, 463. Effect of negotiability on probate duty, 468. TO VOLUME 1. FOEEIGN LAW. See Forehjn Cause of Adion. How proved, 622, 623. Presumption of identity with English, 463, 623. FOEEIGN OFFICIALS, actions between, hero, 629. FOEFEITUEE. See Condition. Not favoured in law, 37. Meaning of, in 13 Eliz. c. 5 ; 6. FOEGEEY, A misdemeanour at common law, 757. Of bond in another's name, not actionable before bond put in suit, 236. FOENICATION, Bond for paj-ment for future, void, 368. In consideration of past, good, Id. FEANCHISE, Action for invasion of, though no pecuniary loss, 253, 257; see 244, 245. In corporation, for benefit of individuals, 248 — 250. FRAUD,. Fraudulent conveyance " clad with a trust," 2. " Badges of," on assignment, Id. The common law " abhors all," 5. Statutes against, liberally construed to defeat, 5. Estate obtained by, when not avoided, 8, 9. Intent to defraud, what such under 27 Eli;5. c. 4 ; 24. Generally, a question of fact, 13. Effect of notice of, to person taking negotiable instrument, 469 — 473. By pi'evious holder of negotiable instrument, effect of, 472. Distinction between "fraud" and " gross negligence," 469. Master's liability for servant's, 353. Conviction obtained by, to be quashed, 669, 670. Judgment obtained bj'', may be impugned in collateral proceeding-;, 669. Avoids all judicial acts, ecclesiastical and temporal, Id. "Fraud or Felony is not to be presumed," 761. "Fraud vitiates everything," 766. Statute of Frauds, not to be made means of, 487. FRAUDS, STATUTE OF. See Statute of Frauds. FRAUDULENT CONVEYANCE, TRANSFER, OR GIFT. 1. Void as against creditors and others, 13 Eliz. e. 5 ; 1 — -24. Assignment in consideration of debt without change of posses- sion, void, when, 1 et seq. Assignment void if not both bona fide and for good consideration, 2--4. Not bond fide if subject to trust for assignor, 2. Trust implied where consideration only of nature, 3, 4. Consideration of nature insufficient, Id. 55 2 INDEX FEAUDULENT CONVEYANCE, TEANSFER, OE GIFT— continued. Assignment after indictment, to defeat crown was void, 5, 18. Secus, where bond fide and for good consideration, 18. "Badges of Fraud," what are, 2. How to make a valid assignment in satisfaction of a debt, 3. Good consideration, what, 3, 4. Fraud, a question of fact for jury, 11, 12, 13. Presumption of, from continuance in possession, 2, 11. From joint possession of assignor and assignee, 12. May be rebutted, how, 12, 13. By notoriety of transfer, 13. Where continuance in possession consistent with deed, 13, 14. By impossibility of transfer of possession, 15. Transfer not necessarily void under 13 Eliz., for secrecy, 14. Effect of Bankruptcy Acts, Id. Of Bills of Sale Acts, 15. Of Merchant Shipping Acts, Id. Good as against maker, 15. Exceptions to this rule, 16. And good against all but creditors or honu fide purchasers, 15, 16. Protection given to purchasers for value without notice, Id., 10. Ground of decision in Twyne's Case, mala fides, 16, 17. A debt a good consideration within 13 Eliz., 16. Transfer to prefer particular creditors not void under 13 Eliz., 17. Effect of Bankruptcy Act, Id. Trust deeds for creditors, if bona fide, not void under 13 Eliz., Id. Bond fide sale for value which defeats execution, when valid, 18. Separation deeds, when valid. Id. Marriage settlements, when void under 13 Eliz.. 18, 19. Dissolutions of partnership, &c., when void, 19. Judgments and executions "contrived of malice," Id. Transfers fraudulent under 13 Eliz., are acts of bankruptcy. Id. VoluHtari/ conveyances, when void under 13 Eliz., 19 — 22. Eule laid down by Kiudersley, V.-C, 20. Eight oi subsequent creditors to impeach conveyance, 20, 21. Conveyance before entering trade, Id. Lord Westbury's dicta in Spireit v. Willows. 21. Inference of intent to defeat creditors, when drawn, 22. Eule derivable from cases, 22. Effect of Bankruptcy Act, Id. Where debts incurred by ancestor of heir, Id. Fraudulent conveyance by heir or executor, Id. I'y testator, when i^roporty conveyed assets. Id. Penalties under 13 Eliz., recoverable by whom, 22, 23. Upon what property 13 Eliz. operates, 23. Conveyance of Copyholds now within Act, Id. Oi c/toses in (trfinn, how far within Act, Id. TO VOLUME I. FRAUDULENT CONVEYANCE, TRANSFER, OR GlYT— continued. Effect of 13 Eliz. upon duty of sheiilf, 23, 24. Creditor's rights under 13 Eliz. not barred by laches, 21. 2. Void as against subsequent purchasers, 27 Eliz. c. 4 ; 6, 24 — 30. Effect of Act on voluntary conveyances, 8, 24. Remedied by Voluntai-y Conveyances Act, 1 893 ; 24. Conveyance good as against grantor, 2d. Conveyances with power of revocation, when void, 0, 7, 25. Who are purchasers within 27 Eliz. ; 8 — 10, 25 — 27. Only purchasers for money or other valuable considera- tion, 8. Mortgagee is, 25. Lessee at rack rent is, Id. Lessee without fine or rent, not, 8, 26. Judgment creditor is not, 26. A will is a voluntary conveyance, Id. Not so, an assignment of leaseholds, if responsibility attached, Id. Conveyance for inadetjuate consideration, when voluntary. Id. Only purchaser from grantor himself can impeach, Id. , Purchaser from grantor's heir or devisee cannot. Id. Nor person claiming under 2nd voluntary conveyance, Id. Nor husband taking by operation of law, Id. Rule in BurrePs Case explained, 27. Proviso in 27 Eliz., in favour of bond fide pui'chasers, 27. Who are such, 27—29. How far consideration of marriage extends, 28, 29. Actual consideration may be proved, to rebut fraud, 29. Adequacy of consideration how far material, 29, 30. 27 Eliz. more beneficial than 13 Eliz. ; 30. Copj-holds are within 27 Eliz. ; Id. Equitable interests are. Id. Personalty, not, Id. Endowment of charity, not. Id. "FREE ON BOARD," effect of, 728. FREEHOLD, Things annexed to, not distrainable, 423, 426. When liable to execution, 426. FREIGHT, Party receiving cargo, when liable for, 460, 461. Liability for, of indorsee of bill of lading, 739, 740. FURNITURE, Custom of hotel-keepers to hire, 540, 551. In warehouse, not distrainable, 427, 428. aABBERTS, liability of owners of, 219. GAMING, Bonds contravening statutes against, void, 369. Money lent for purpose of illegal, irrecoverable, 384. INDEX GAMlNG^continued. Money paid by loser to winner of illegal [game, irrecoverable, 384, 386. Paid to stakeholder, when recoverable, 386, 387. Received by winner's agent, recoverable by winner. Id. GAS meters, &c., not distrainable, by statute, 437. GAZETTE, publication of dismissal in, 630. GENERAL AVERAGE, usage not to pay, on deck cargo, 541. GEOGRAPHY, meaning of geographical terms, by custom, 546. GIFT. See Fraudulent Conveyance. Of chattels, by parol without delivery, void, 148. GOODS. See Chattels. Bills of sale of, 15. Mortgage of, may be without deed, 194. GOVERNMENT, officer of, doing wrong under order of, liable to action, 629, 630. GOVERNOR, Of colony, extent of his exemption from liability, 584 et seq., 605, 623, 624. Actions against, in colonial courts, 623, 624. Actions against here, 572 et seq., 588, 589, 606. Must plead his justification, if any, 585, 586. Criminally liable by statute, 581. Of fort, when he may insure, 480. GRANT, Implied a covenant, 54, 57, 58, 64, 158. Queer e, whether it does so now, 158. Does not, in case of freehold, 57, 58. Covenant may enui-e as a grant, 89. GRATUITOUS Service, 136. See Consideration. Agent or bailee, his liability, 167 et seq. See Bailments. GUARANTEE must be in writing and signed. See Statute of Frauds. HARDWICKE, LORD, decisions of, ill-reported, 711. IIEIR, Conveyance by, when void against ancestor's creditors, 22. Not bound by ancestor's conveyance to evade Mortmain Acts, 389. Of aHsigneo may bring covenant, 56. To mortgagor, not tenant to mortgagee, by paying interest, 519. HIGH SEAS, Action for collision on, negligence essential to, 809, 810. Action against alien for injury on, 605, 619. TO VOLUME I. HIGHWAY, Liability for animal straying on, 827. Eisk of accident undertaken by persons using, 808, 827. And by persons whose property adjoins. Id. HIliE-PURCIIASE AGEEEMENT, possession under, whether adected by Factors Acts, 746. HIRING. See Bailments. HOMICIDE, In defence of house, 100. In self-defence, or by misfortune, Id. Negligent, action for, under Lord Campbell's Act, 267. HORSE. See Animal. Pawnee of, feeding, may use reasonably, 177. Lender of, dutj' to disclose vices of, 229. Borrower of, his liabilitj^ for, 175, J 76. Hirer of, his liabilitj' for, 191. Liability of carrier of, 205, 211, 213. At livery, eating more than worth, may not be sold, 119. Except by custom of London and of Exeter, 119. In Lincoln's Inn Fields, the case of, 444. " Our ancestors settled it is not nature of, to kick," 804. HOTEL. See Innkeeper. Custom of hotel-keepers to hire furniture, 540, 551. HOUSE, Every man's dwelling-house is his castle, 99 et seq. Only a castle for himself and his family, 104, 110. Rules as to sheriri' breaking, or entering. See Sheriff (and Addenda). As to landlord doing so to distrain. See Distress. Killing in defence of, when justifiable, 100. Assemblage in defence of, lawful, Id. Occupied, when may be pulled down, 134. Offensive trade near, 268, 269. See Nuisance. Eight of support for, 269. See Support. Damage to, by letting down the soil, 270, 271. See Support. HUNDREDEES, formerly necessary on jury, 596, 599. HUSBAND AND WIFE. See Marriaije. Sale by husband to wife upheld against creditors, 13. Action for enticing wife away, 258. Agreements for separation, when void, when valid, 366, 367. IDEM SONANS. ^qq Name. IDENTIFICATION, Of passengers with driver, (ina lattei^'s negligence, 277. This doctrine now over-ruled, Id. Of child with attendant, qua latter's negligence, 278. INDEX ILLEGALITY, By statute or by common law, scmhle no distinction between, 357, 361, 371. Of promise of reward for attempt to obtain pardon, 136. Of contract to pay for not committing a crime, 359. Of contract to tempt a man to transgress the law, 359, 360. Of consideration pleadable to action on deed, 3G0 et seq., 363. Though, deed good on the face of it, 356. Though plea inconsistent with terms of deed, 363, 364. Court will not enforce illegal contracts if illegality appears, 364. Examples of deeds and contracts illegal at common law, 364 — 368. Contracts against public policj-, 364. Contract to compromise pending criminal proceedings, 364, 365. Contract not to prosecute, 365. Contract to pay for withdrawal of election petition. Id. Or of proceedings against solicitor. Id. Or of opposition to bankrupt's discharge, Id. Or of divorce suit. Id. Contract to indemnify bail, Id. Deed iov future sej^aration of husband and wife, 366. Separation deed, when lawful, 366, 367. Covenant by husband to give up control of child, 367. Covenant to let wife live as if unmarried, Id. Covenant to pay annuity without dum casta clause, Id. Covenants and conditions against marriage. Id. Marriage brocage bonds and contracts, Id. Grant conferring judicial office on interested party, 368. Bonds given for immoral considerations, Id. In consideration of past seduction, valid. Id. Contract of hire for immoral purpose. Id. Examples of bonds and contracts illegal by statute, 368 et seq. Gaming : Sale of offices : Simony : Usury : 369. Other instances, 369, 370. Contracts contravening jjolicy of Bankruptcy Acts, 370. Policy on illegal voyage, Id. Illegalities under Companies Acts, Id. Trades unions, Id. Deeds contravening the Mortmain Acts, 370, 389. Maintenance and chami^erty, 371. Contracts capable of being legally performed. Id. One void condition in bond does not avoid the rest. Id. Unless by terms of statute, 371. The good and bad parts must bo separable, 372. One illegal consideratio)i. avoids whole contract. Id. Secus, where one consideration merely void, 373. Covenants in lease granted for illegal pui'pose, not enforceable, Id. Imposition of penalty implies prohibition. Id. Contracts with jiersons incurring penalties, when illegal, 374. Contracts, not enforceable while executory, sometimes available when executed, 375. Contracts not illegal because involving breach of j^rivate duty. Id. But action lies for inducing person to break contract, 281. TO VOLUME I. ILLEGAJATY—contmiied. Contracts, when vitiated by past illegality, 375^377. Fisher v. Bridges considered, 377- Contracts held void for constructive illegality, Id. Dictum of Cave, J., as to " public policy," Id. Doctrine of Ultra vires explained, 378 et seq. See Corporation. Statute, whether imperative or directory, 381, 382. Contribution between wrong-doers, not allowed, 383, 384, 389, 390. Rule inaj^plicable to tort-feasor by inference of law, 390. Nor where act not clearly illegal in itself, Id. Money paid under illegal contract not recoverable, 384 et seq. Money lent for express purpose of illegal gaming, 384. Money paid by loser to winner of illegal wager, Id. Premiums paid on illegal insurance, 385. Exceptions to rule, 385 et seq. Where money obtained by oppression, 385. Rights of trustee in bankruptcy, 386. Money paid to stakeholdei', 38fc), 387. Money received by agent of winner, 386. Test of plaintiff's right to recover, 387. Whether recoverable where illegal purpose not executed, 387, 388. Taylor v. Boivers doubted, 388. Conveyance of estate for illegal purpose held good against grantor, 389. To evade Mortmain Act held bad against grantor's heir, Id. Corporation, when estopped from pleading illegality of its debentures, Id. INADEQUACY. See Adequacy, Consideration. INCOEPOREAL HEREDITAMENT, covenant running with, 91. INDEMNITY. See Contribntiou. To agent, 147. To surety from principal, 149 et seq. For compulsory payments, 149. When for payment of costs of defence. Id. Not for costs of improperly defending action, Id. Question for jury whether costs properly incurred, 149, 150. Effect of giving notice to principal, 150. Eor amount of compromise, when, 149. When costs of defence not recoverable from sub-lessee, 150, 151. Remedies of sureties under 19 & 20 Vict. c. 97 ; 154, 155. No indemnity to wrong-doers, 154, 155, 383 et seq. Qualifications of rule, 154, 155, 390. Case of newspaper proprietor and editor, 155. Case of dormant partner, 156. By landlord to tenant, 156 et seq. See Landlord and Tenant. Implied, when excluded by express covenant, 158. Between lessee and assignees, 70, 106. Between buyer and seller of shares, 70, 166. Custom of Stock Exchange, whore vendor of shares entitled to, 545, 546. INDEX ItiD^UNlTY— continued. To broker emj^loyed to sell on Stock Exchange, 546, 548 — 550. Of bail in criminal case, illegal, 365. Contracts to indemnity, not within Statute of Frauds, 289. INDIA BOND, not negotiable, 456. INDICTMENT, j^roper remedy for grievance to community, 253, 274. INFANT. See CJiild. En ventre sa mere, injury to, held not actionable, 202. INFOEMATION OR COMPLAINT, The foundation of jurisdiction for summary conviction, 649. Except where power to convict on view, Id. Generally sufficient if in words of Act creating the offence, 650, 651. Defects in, or variance, when iramaterial, 647, 649. When a ground for adjourning case, 647. What should be stated in, 650. When need or need not be on oath, 649, 652. When justice may proceed ex parte on, 653. When warrant for non-appearance to summons on, 652. When complainant need not prove negative stated in, 651. Nor state exceptions of Act in, Id. Evidence not to be stated in, 649, 653. When warrant may be issued on, 649. Proceedings on, 652 et seq. INJUNCTION, Remedy by, for infringement of statute, 285. For breach of express negative promise, 339. To enforce restraint of trade, 401. INJURY. See Action, Damage. Test of, 259, 273. Damage presumed from, 273. INN. See Innkeejjer. Definition of common inn, 124; see 116. INNKEEPER, His liability for loss of guest's goods, 115 et seq. Old form of writ, 115. Liable only for goods within his inn, 116, 118. Unless he himself put them outside, 117, 122. Liable as innkeeper only for goods received by him as such, 124. Liable for his own servants, and for strangers, 117, 118. Not liable for guest's companion or servant, 117. Liable for guest's deeds, &c., 118; and money, 122. Not liable for act of God, or Queen's enemies, 123. Nor whore loss duo to guest's negligence, 117, 120 — 123, Guest's omission to lock door, 117, 120, 123. Evidence, burden of proof, 121, 123. May limit his liability by special contract, 124. TO VOLUME I. INNKEKPER— confiHjfwZ. Liability limited by 26 & 27 Vict. c. 41 ; 119. Who is a guest, who not, 116, 122, 124. His duty to receive guests, 125. His lien on guests' goods, 125, and Addenda. His power of sale under Innkeepers Act, 1878 ; 126. Custom of London, and Exeter, as to horses at liverj^ 119. Not entitled to detain guest, 126. Not liable for battery of guest, 118. INQUISITION, quashed for error not apparent on face of, 663. INSOLVENCY, Definition of, in Sale of Goods Act, 719. What is the state of, 21. INSTRUMENTS, Of man's trade, when privileged from distress, 423, 424, 434, 435. Of husbandly, their privilege from distress, 423, 434. INSURANCE, Nature t)f contract, 477. Why concealment avoids policy, 477, 486. Concealment by underwriter may vitiate, 477, 478. Cicero's definition of concealment, 478. What information to underwriter superfluous, 478, 479. What waived, 479. Concealment of matter within private knowledge, 483. Oi^inion of broker as to materiality of facts, 486, 487 et seq. Warranty of seaworthiness, when implied, 484 ; see 220. Of fort, by governor, when valid, 480. Of wages by seamen, whether void. Id. Wagering, when void, 474. Where property has not passed under St. of Frauds, 301. Payment of premiums by one beneficiary, 142. Policy of, on illegal voyage, void, 370. Premiums paid on illegal, irrecoverable, 385. Contract of sea, without stamped j)olicy, how far a good considera- tion, 374. Usage as to duration of underwriter's liability, 541 . Marine insurance, rules imported into contract of. Id. See 554, 555. Assignment of life policy, assigned abroad, 614. INTENTION, Of buyer, not to take possession, 727. As to delivery of whole, where part delivered to buyer, 730 — 732. Property passes on sale without delivery if so intended, 148. INTEREST, Mere receipt of, by mortgagee, no recognition of tenancy, 509. Heir to mortgagor, not tenant to mortgagee, by paying, 519. INTERLINEATION, effect of, 784. INDEX INVOICE, eflfecfc of, 705. IRELAND, position of Lord Lieutenant of, 624. lEON SCRIP NOTE, whether negotiable, 455. IRON TRADE, custom of, as to warrants, 542. IRON WARRANT, Whether negotiable, 455, 542. Custom as to, 542. ISLE OF MAN, question of seignory in, triable here, 586. JEOFAILS, Statute of, curing wrong venue, 598, 599. JEWELS, Pawnee of, may use at his peril, 177. Liability of goldsmith employed to set, 198. JOINT CONTRACTOR. See Contribution, Statute of Limitations. JONES, SIR W., on Bailments, a great authority, 188, 227. JUDGE, Exempt from civil liability for judicial acts, 283, 284, 631, 642; see also 235—237. Must plead his justification, 584. Words spoken by, privileged, 265. Grant of judicial office to interested party void, 368. JUDGMENT, When void, against creditors, 19. Presumption arising from unreversed, 261. Of comi:)etent tribunal, conclusive as to facts stated in it, 641. ' But fraud avoids all judicial acts, 669. When entered nunc j^ro tunc, 326, 342. JURISDICTION, When our courts undertake, as to foreign matters, 572, 602 et seq. Not, when title to foreign land in dispute, 602, 603. Exceptions in equity, through jurisdiction i7i personam, 603. Otherwise, generally undertaken, though jiarties aliens, 603 et seq. Possible exception, where matter of contract abroad, 604. Case of ship brought to this country. Id. Contract must not violate our law, 605. Tort must be actionable both here and abroad, 605 — 607. Case where tort on high seas, 605, 619. Effect of ex 2^081 facto legislation abroad, 606. Necessity for service of process, 603, 607. Not extended by abolition of local venues, 602. See Venue. When specially undertaken at request of foreign state, 607. Crimes only puninhable in country where committed, 575. Effect of submission to, 578. Plea to, when necessary, 584. TO VOLUME I. JUEISDICTION— con«i«Hed Of court, not ousted by mere agreement of parties, 340. Condition against action before award, valid, 340, 341. Liability of justices acting without, 632 et seq. Conviction good on face may be quashed for want of, 661 et seq. Defect of, in conviction, mandamus to show, will not issue, 661, 662. Whether should appear affirmatively on conviction, 646. To convict, when ousted by claim of right, 665 — G67. Not acquired by erroneous decision on collateral point on which jurisdiction depends, 666. " Declining jurisdiction," what is, 644. See also Certiorari, Crown, Foreign Cause of Action, Governor, Judge, Justice of Peace, Parliament, Sovereign Prince. JURY, Fraud now question of fact for, 13. Evidence in mercantile cases formerly left to, generally, 539, 685. Construction of contract not left to, 560. Trial by magistrate without, a statutory proceeding, 646. Eight to claim trial by jurj', when, 656. Formerly of the hundred, 599. Now suyimoned de corpore comitatus, Id. JUSTICE OF PEACE, Trial by, without jury, a statutory proceeding, 646. When liable to action for conviction or order, 632 et seq. Not liable for erroneous decision on question of fact, 641, 657. Liable for mistake of law, if conviction enforced. Id. For enforcement of several convictions for one offence, 632. Of conviction void for want of jurisdiction, 640. Of joint or single conviction for several oifences, 641. Protection given to, by Justices Protection Act, 1848 ; 642 — 645. Sect. 1. Acting luiihi 11 J uj isdidion, 642. Not liable, unless he acted malicioush- and without probable cause, Id. Semhle, action lies, though conviction not quashed. Id. Qucere, within general protection of judge, Id. Sect. 2. Acting ivitliout or in excess of jurisdiction, 642, 643. Not liable for conviction, unless it be quashed, 642. Nor for warrant, if summons previously disobeyed, Id. Excess and erroneous exercise of jurisdiction distinguished, 643. Not liable if jurisdiction to order act complained of. Id. Sect. 3. Not liable for warrant granted on conviction by other justice, Id. Sect. 4. Nor for warrant for poor rates against parties rated, Id. Sect. 5. Nor for acts done under order of Q. B., 643, 644. What acts the Q. B. will order. Id. Sect." 6. Protected bj' confirmation of conviction on appeal, 645. Sect. 7. Action against, when set aside, Id. Sect. 10. Exemption from county court, Id. Sect. 13. 2d. damages, if plaintiff guilty and duly punished, Id. INDEX JUSTICE OF TEA.CE—conUnuecl Effect of Public Authorities Protection Act, 1893 ; 645. Action must be brought within six months, Id. Plea of tender of amends : Costs : Id. Information against, not before conviction quashed, G37. When may draw up, or amend, conviction, 645, 64G. Provisions of Summary Jurisdiction Acts, 646 — 649, 654 — 656, 670 — 673. May compel attendance of witness, when, 648. Former requisites of conviction by, 649 — 654. See Conviction. Jmisdiction of, as to indictable offences, 656. No appeal from conviction of, unless given by statute, 657. Eemedy against conviction by certiorari, 657 et scq. See Certiorari. Conviction by, when quashed for want of jurisdiction, 661 et seq. See Certiorari. Interested, conviction by, void, 663, 664. Corruption of, conviction by, may be quashed, 669. Though conviction quashed, no action lies, when, 657. Jurisdiction of, when ousted by bona fide claim of title, 665 — 667. Special case stated by, under Summary Jurisdiction Act, 1857; 670—672. High Court can compel, to state, 671. Powers of High Court on, 671, 672. Costs of. Id. Protection to justices acting on affirmed conviction, 672. Eight to, not excluded by statute giving another appeal. Id. Special case, under Summary Jurisdiction Act, 1879 ; 672, 673. KING. See Croivii, Sovereign Prince. KNOWLEDGE, Meaning of, 470. When presumed, where there were reasonable means of, 208. LACHES, Equitable doctrine of, does not bar legal rights, 24. LADY DAY, WTien " old" may be shown to have been intended, 552, 553. Taking from old, custom justifying entry before, 535. LAND, Covenants run with, when, 52 et seq. See Covenants. Natural and ordinary user of, no cause of action, 817, 822. LANDLOED AND TENANT. See Condition, Covenant, Distress, Indemnity, Lease, Bent, Tenant. Can assignor and assignee be ? 96 — 98. Eight of ro-ontry for condition broken, 31 d scq. See Condition. Indemnity to tenant for charges, 156 ct scq. For charges on land or on landlord, 157. When such payments compulsory, 157, 158. TO VOLUxME I. LANDLORD AND TE^A'NT— continued. Tenant's I'ight to appropriate payment of charges to rent, 157. May plead payment, as paymcrtt of rent, when, 157, 162. May deduct amount from rent, Id. And sue for excess, if any, 157. Within what period may deduct for taxes paid, 1G3. Eight to deduct for ground rent, when, 1G4, 165. Construction of lease by custom of country, 528, 5.'}8, 552, 550. Eights between, by custom. Id. See Custom. When tenant may hold over in lieu of emblements, 534. Eelation of, between mortgagee and mortgagor. See Mortgagor. Between mortgagee and mortgagor's tenant, Id. Tenant cannot dispute title of landlord under whom he entered, 503. May show that his title has determined, 503, 507. LAND TAX, Tenant's right to repayment of, 163, 104. LAECENY, Of dogs, none at common law, 431. Of written instrument, 119. By finder of goods, 190. LAW, foreign. See Foreign Laiv'. LEASE, Condition iu, not to alien without licence, 31 et seq. See Condition. When covenants in, run, 52 et seq. See Covenants. Granted for illegal purpose, covenants in, not enforceable, 573. Custom of country, when may explain or add to, 538, ob2, 550. Who pays for, 551. Parol, of shooting over Scotch moor, 022 Pledged, held not saleable on default, 193, 194. LEEMAN'S ACT (30 & 31 Vict. c. 29), usage to disregard, 554. LENDEE, his duty to disclose defects, 228—230. LESSEE. See Covenant^ Estoppel, Landlord and Tenant. When a purchaser within 27 Eliz. c. 4 ; 25, 20. Sublessee, when not liable to indemnifj' lessee, for costs of action for breach of covenant, 150. LETTEE, ISlot produced, presumption as to sale or contents, 354. Written without prejudice, 571. LIBEL. See Privileged Statement. In newspaper, criminal liability of proprietor, 155. No indemnity from editor. Id. Eeports of public meetings, &c., 204. Damage, when too remote, 280, 281. LICENCE, To assign lease, 31 et seq. See Co)idition. To break covenant, when presumed, 45. To enjoy easement, whether title against wrong-doer, 345 et seq. To use way, action against stranger for obstructing, 347. INDEX LICENCE — continued. Enuiing as a lease, 515. Parol, no legal defence to deed, 341. LIEN, Confers no right to sell, 192. Difference between, and pawn. Id. Eelinquishment of, a good consideration, 4fil. Consignee's lien in respect of advances, 745. Innkeeper's, 125, and Addenda. LIGHTEEMAN, Liability of, as carrier, 199. For fire [Morewood v. PoUocJc), 218. Eor robbery, 219. LIMITATIONS, STATUTE OF. See Statute of Limitations. LIQUIDATED : Instance of ciaiva. jji-ima facie such, 331. LIVE STOCK. See Animal. Covenant as to, does not run with land, 54, 89. Bailed for breeding purposes, not distrainable, 435. Agisted, how far distrainable, 435. LIVEEY STABLE, Carriage of another in, whether distrainable, 436, Horse at livery, eating more than he is worth, 119. LLOYD'S COFFEE HOUSE, usage of, how far binding, 548, 549. LOAN, 175, 190, 228. See Bailments. LOCAL ACTION. See Venue. Distinguished from transitory, 597. Arising abroad, not entertained by our courts, 602, 603. LODGEE, Goods of, protected from distress, when, 436. Who is, 436. Letting to, when not a breach of condition, 46. Duty of landlord to, 125. LONDON, Meaning of, in contracts, 412, 413. Custom of, as to horse at livery, 119. LOED LIEUTENANT OF lEELAND, his position, 624. LOSS, Of deed by time and accident, plea of, 753, 778. Moaning of loss, in Carriers Act, 206. LUGGAGE, r.iiil-ility of carrier for loss of, 200—202, 213, 216, 225. ( )K cab pro])riotor for loss of, 200, 353. Oi' railway comi)aiiy, for loss of, 201, 202, 208, 213, 216, 225. When ])laced in passenger's carriage, 201. I'or refusing to carry, except at passenger's risk, Id. TO VOLUME I. MACHINERY, Affixed to freehold, when distrainablo, 426, 427. Lent to workman, whon distraiiiable, 429. Hired by tenant, for agricultural purposes, not distrainablo, 435. MAGISTRATE. See Justice of Peace. MAINTENANCE, Illegality of contracts by way of, 371. Old doctrine of, qualified, 769, 770. Doctrine misapjilied to case of assignment of chose in action, 769. MALICE, Action for malicious legal proceedings, when it lies, 260 — 262. Burden of proof; question for jury, 261, 262. Action for malicious arrest, 260. For maliciously procuring adjudication of bankruptcy, 262. By company, for malicious petition to wind up, 263. Eor maliciously inducing person to break contract, 281. See 301. Against officer, for maliciously rejecting vote, 282 — 285. Breach of plain duty, whether evidence of, 285. Justice of peace acting without, when not liable, 642, 657. MANDAMUS, To justices to hear and determine, 644, 662. To enter continuances and hear, 662. To supply clear omission in statement, when, 661, 662. To insert particular statement, not, 662. To do a particular thing, not. Id. To officer to make up record. Id. To clerk of peace to correct minutes, not. Id. To admit to copyhold, lies for surrenderee, or heir, 242. And for surrenderee of heir, Id. Not, if barred by lapse of time. Id. Nor, if question of equity involved, Id. Nor, when copyhold held of crown, 243. MANDATUM, 179, 227. See Bailments. MANSFIELD, LORD, The founder of our commercial law, 685. His papers burnt in 1780; 703. MANSLAUGHTER, action for, before indictment, 280. MARKET, Sale in overt, without title, passes propertj', 8, 455. Covenant running with demise of tolls of, 90. Assembly in, to safeguard person, unlawful, 100. Customs of, agents dealing in, authorised to follow, 147, 548 — 550. Action for setting uj) new, near ancient, 244. Contract for purpose of " rigging the market," illegal, 368. Validity of by-laws regulating, 393, 415. Cattle on way to, not distrainable, 429. S.L.C. — VOL. I. 56 INDEX MARRIAGE. See Husband and Wife. A valuable consideration, 25, 26, 27. But husband taking by operation of law, no purchaser for value, 26. How far marriage consideration extends, 28, 29. Marriage settlements when void against creditors, 18, 19. Not a forfeiture of lease, 47. General covenant or condition against, void, 367. Condition in restraint of second, good, Id. Marriage brocage contracts, illegal. Id. Action against clergyman for refusing to solemnize, 231. " MARTINMAS," Cannot be shown to mean old, when, 652, 653. MASTER. See Principal and Agent, Ratification, Servant. His liability for act or default of his servant, 351 et seq. Test is -whether act within scope of servant's employment, 352. The relation of master and servant must exist, 353. His remedy when servant seduced, or enticed away, 266, 281. See 301. Paying servant's fare, action against carrier for negligence, 202. Ilis remedy for injuries to servant, 202. Carrier's servant injured by destructive goods, action, 204. Who' are servants of carrier, 209. Servant's right to customary holidays and notices, 550, 551. Position of servant when no better than that of, 278. MASTER OF SHIP, Discharged by delivery under one of several bills of lading, 697, 705. Unless with notice of another indorsement, Id. Liability of, for signature to bill of lading, 741. Liability of, for loss of goods, 178, 218—220. May insure his wages, 480. MATERIALITY, Of facts undisclosed, broker's opinion, 486, 487 et seq. Of alterations in bills or notes, 780 et seq. See Alteration. MAXIMS, PRINCIPLES, AND DICTA, A fiction of law valid only to effect its object, 591. Acta exteriora indicant interiora secreta, 128. Actus curice nemini facit injuriam, 342. All statutes made against fraud should be liberally and beneficially exjjounded to su])press the fraud, 5. All tilings not prohibited by law, may be restrained by condition, 397. Assent presumed to act done for one's benefit, 338. An injury imports a damage when a man is hindered of his right, 252. A particular inconvenience to be permitted, rather than a general inconvenience incurred, 450. Boni jndicis est ampHare jurisdiction em, 360, 773. Cessante ratione cessai et ipsa lex, 431. Circuity of action to be avoided, 340. TO VOLTTME I. MAXIMS, PRINCIPLES, AND DICTA— co7itinued. Clausulcn mcoiisuetoi semper inducimt stispicionem, 2. Contemporanea expositio fortissima est iti, lege, 255, note. Custom of particular place may rectify what otherwise would be imprudence or folly, 534. Jurisdiction of court not ousted by agreement of jiarties, 340. De minimis non curat lex, 250. Dolosus versatur in generalibus, 2. Domus sua cuique est tutissimum refiigium, 100, 104, 110. Dona clandestina sunt semper suspiciosa, 2. Estate beginning with livery, only determined by entry, 41. Every man's house his castle, 100 ef seq. Ex turpi causa, non oritur actio, 384. Expressio eorum quce tacite insunt nihil operatur, 141. Expressions used in particular cases are to be understood with relation to the subject-matter then before the court, 502. Extra imperii fines leges imponenti impune non paretur, 626. Fraud avoids all, 669, 766. He who seeks equity must first do equity, 679, 684, 711. He who sows ought to reap, 534. In contractibus semper insunt ea quce moris sunt et consuetudinis, 609. In* jure, non reniota sed proxima spectantur, 280. Judges can only look to former decisions, 764. Locus regit actum, 608. Mere possession is sufficient title against a wrong-doer, 344. " Money has no earmark," not a maxim of law, 452. No man shall be permitted to take the chance of committing a fraud without losing by the event, when it is detected, 757. Non quod dictum sed quod factum est injure inspicitur, 38. Nova constitutio futuris formam innponere debet, non prceieritis. Nullus commodum capere potest de injuria sua piroprid, 313, 112. Observe, reader, your old books, 56. Omnia prcesurnimtur contra spoliatorem, 343, 353. Omnis coactio a legato abesse debet, 630. Omnis innovatio plus novitate perturbat quani utilitate prodest, 242. Omnis ratihibitio retrotrahitur et mandato cequijHiratur, 142, 347. Party in custody of original instrument made for his benefit, bounK ■ ' 1 ' ' ' ' ■:! ' I ' i * ■ ; ; i : ' 1 '1 iiiii