/ ir'IC1PAL ELECTIONS AND PETITIONS.' MILES WALKEE MATTINSON, Esq., OF gray's INN, BARRISTER-AT-LAW, LATE HOLDER OF A FIRST-CLASS STUDENTSHIP OF THE FOUR IN-NS OF COURT, ETC. ETC. LONDON: STEVENS AND HAYNES, BELL YARD, TEMPLE BAR. 1878. T 1976 LONDOX : BRADBtRY, AGNEW, & CO., PEINTEItS, WHITEFHIAES. PKEFACE Peobably no part of our judicial system has been more completely revolutionized by the Judicature Acts than that which relates to Pleading ; and this being the case, it is certainly somewhat remarkable that amid the multi- tude of valuable treatises that have appeared upon the new Practice, no work has yet been published upon the subject of Pleading. This fact suggested to the authors the idea of the book which is now submitted to the Profession. The utility of a volume of Precedents of Pleadings can scarcely be questioned. The old works on the subject are now of comparatively little value owing to the radical changes in the substance as well as in the form of j)leadings ; while a conspicuous proof of the continuing necessity for and value of Precedents is found in the fact that the framers of the Judicature Acts have them- selves in Appendix C. acknowledged the want by there essaying in some measure to supply it. Some twenty- seven forms will be found in this Appendix ; but it is obvious tliat as they necessarily have reference to only a few causes of action, they are but a very partial help to the pleader. The object of the present work is to supply precedents 793SS,. VI PREFACE. of the more common form of pleadings in every important kind of action tried in wliat may still be called the Common Law Courts. The various pleadings that appear in it have in nearly every case been settled by counsel of standing at the Bar, and form part of the record in cases that have been carried on up to trial or actually tried smce the Judicature Acts came into operation. Several of the pleadings are taken from the reports ; but this source of information was necessarily limited, and the authors are largely indebted to the coui'tes}'^ of several of the Judges, the Associates and other officers connected with the Courts, to their brethren of the Bar, and to several eminent firms of SoHcitors, for the forms which make up the body of the work, and which have been selected with great care from the abundant materials placed at their disposal. It has seemed to the authors a considerable advantage to be enabled thus to produce a work composed of plead- ings which have been drawn under a sense of responsi- bility in cases which have actually arisen, and which in their nature and facts may be taken as fairly representa- tive of the class of cases that are continuall}' arising in practice. And besides, such pleadings possess the addi- tional value of having passed the adverse criticism of opposing counsel, and in some cases the ordeal of a contest at Judges' Chambers or in Court. The authors, however, have not been content to take any pleadings on trust, no matter by whom settled ; but have themselves, in the light of the latest decisions, exer- PREFACE. Vll cised an active though cautious discretion in exchidiug or correcting any pleading which was clearty erroneous or imperfect. Nearly the fii-st hundred pages of the book are taken up with a treatise, as exhaustive as the means at the authors' command would admit, upon the subject of Plead- ing, including in it that of Parties, under the new system. All. the new rules and the decisions upon them have been carefully collated; and it is hoped that this mass of matter, scattered, as will be seen, over a number of reports, and never before collected in one view, will be found of use to the pleader. Numerous notes have been appended to the various headings under which the pleadings are arranged, and in these notes the object has been to present a brief outline of the law relating to the particular kind of action with which the pleading in question is concerned, and especially to exhibit in a clear light' those parts of the law which ought to be present to the mind of the pleader. The scope of the work has not allowed the authors to attempt a complete exposition of the substantive law on any par- ticular subject. Theii' object has not been to do this ; but rather to make a selection of matter which seemed to them likely to be most useful in practice. It will be noticed that in classifying the pleadings the authors have adopted an alphabetical arrangement, that they have not made the common division into Contracts and Torts, and that they have grouped the statements of defence, &.C., along with and under the same head as the statements of claim. It has seemed to them that in viii PREFACE. adopting this course, while considerable economy of space is secured, a practical advantage is gained. It enables any one using the book the more readily to fiiid the particular precedent of which he is in search; and when he has found it, he will frequently have before him in one view a complete set of pleadings on a given subject, instead of having to search in different parts of the book for defences adapted to claims, and replies to defences. The plan has the additional advantage that it has enabled the authors to give all the notes bearing on each form of action compactly arranged in one place, and thus saves the practitioner the trouble of looking for the particular matter he wants through several parts of the work. The authors would take this opportunity of tendering their thanks to their frieijd Mr. W. T. Waite, of Gray's Inn, who has lent them cordial and valuable assistance in the present undertaking. J. C. M. W. M. 1, The Cloistees, Temple, October, 1878. CONTENTS. PAGE TABLE SHOWING THE DATE OF EACH VOLUME OF THE CURRENT REPORTS FROM THE YEAR 1S<;0 TO THE PRESENT TIME xi TABLE OF CASES xiii ADDENDA xxxi CHAPTER L — PARTIES TO PLEADINGS UNDER THE NEW PROCEDURE 1 CHAPTER IL — GENERAL PRINCIPLES AND RULES OF PLEADING 23 COMMENCEMENTS AND TERMINATIONS OF PLEADINGS . 91 PRECEDENTS AND NOTES. PAGE JAGE Accord axd Satisfaction lur, Bonds .... 199 Account Stated 107 Breach of Contract 201 Agents .... 108 Breach op Promise of Mar- Agistment .... lU riage .... J207 Alteration 119 Charter-party . 214 Apprentice .... 120 Chose in Action . 238 Architect 123 Clergymen .... 244 Assault and Battery 12.5 Commission 247 Average .... 131 Common Carriers 254 Award 133 Copyright 277 Bail 135 Covenant .... 279 Bailments .... UiG Defamation 281 Bankers .... 140 Demurrer .... 294 Bankruptcy 153 Detinue .... 29G Bills op Exchange i(;4 Distress .... 3C0 Bill of Lading . 191 Easements :!:J5 X CONTENTS. PAGE PAGE Executors and Adminis- Nuisance . . . . . 487 TKATOES . . . . 31.-, ■ Partners . 501 False Imprisonment •^•i:> Patents . . . . . 505 Ferocious Animals . 330 Penalty .... . 511 Fraud .... 332 IlECOVERY OF LAND . 515 Goodwill .... 333 Eelease .... : 530 Guarantee 335 PiEPLEVIN . . . . . 531 Husband and Wife . 345 Eeward .... . 53S Illegality 355 Sale of Goods . . 534 Immoral Consideration 356 Sale op Land . •, 558 Infancy .... 357 Seduction . . 506 Innkeeper .... 358 Sheriff .... . 569 Insanity .... 302 Shipowner . . 574 Insurance :— Solicitor .... . 575 Marine .... , .363 Stock .... . 568 Life .... . 385 Stoppage in Transitu . . 594 Fire ...'.. , 388 Surveyor . . 595 Interpleader . . 31 S K CO .2 s >> SiSX-ZZSl ■3 ^- ^ 68'88'Z8 CO 01 «o 1 liSlSlSl (M ^ IT ->* Cf ;; ^ Z8'98'S8 9iSX-QlSl p o* 1-1 C^ " ^ 28 '^8 '88 o »— o <>1 9lSl-^lSl o o i-i oT ^ 88 '38 '18 CO Oi - l-H C» I— fi8l-8iSl o 03 I^ : % 18 '08 '65 CO ■- «r 8i8I-Si8l o CO >^- ^ 6S'S5'Z5 - 1 -et zisi-usi "o t^ c^ •^ :;; Z5'95'SS O o "- 1 o J— XiSI-0i,8I > o - - 5 S5'f5'8S Oi lO o 0J.SX-69SI > lO c- ~ S" 86 '53 'l6 OD -* 098I-S98t ^ ^^^ ^ IS '06 '61 t^ CO S9Sl-Z98t "3 CO "- ?5 6T'8T'Z[ O (N J!,98l-99Sl "p (M :- ^ ^^'91 'SI >o I-I 0981-2981 > r-1 2> ^ si'n'81 I-H S98I-f98I > : ^ 81'51'n C-CI : f98I-89Sl 898I-698I "p : g? II'0I'6'8 CI T-4 -i g? 6 '8 'Z I-I 0981-1981 •% s5 y 'S 'i^ r^ 1981-0981 ■i S t'8'3'l a "^ '^"^ « tS PlH h3 ^ #^ K o c S a fl .■^ o 2 J. ^ c Pi s p-l « a: H < o O a: W > C 1-5 Eh h4 ^~^ % w rr r^ CO ►-^ -M 5 CO , C» Q J^ C-' lO "* W5 CO ^ o -^ CO '^l ■ ^ O o oo r-l >- r- CO 1^ CO > > _, cS Ph ^_i <^ o to 2S TABLE OF CASES. Abbot v. Macfie, 463 — V. Parfit, 316 Abraham r. Cooke, 296 Absalom v. Marke, 181 Acebal v. Levy, 537 Adams v. Gibney, 399 — V. Jones, 169 Adeiis V. Thrigley, 29 Adie V. Western Bank of Scotland, 438, 450 Alder v. Boyle, 247 Aldous r. Comwell, 119 Aldrett v. Kettiidge, 153 Alexander v. Burchfield, 187 — V. Southey, 618 AUen *•. Bennett, 535 — V. Hayward, 489, 490 — V. Kemble, 170 — V. Smith, 619 Allison V. Bristol Marine Insurance Co., 366 — V. Haydon, 433 Allsop V. Allsopp, 284 ALsager v. Clo.se, 618 Amor V. Fearon, 650 Anderson v. Edie, 385 — v. Fitzgerald, 385 — V. Pacific, &c., Insurance Co., 368 Angrove v. Tippett, 418 A[>plebee v. Percy, 330 Appleby v. Myers, 645 Arbouin v. Anderson, 295 Archer v. Bamford, 193 Archibald ». Howth, 437 Ai-mfield v. Allport, 167 Armistead v. Wilde, 360 Armitage v. Insole, 538 Ai-mory v. Delamirie, 601, 617 Ami-strong v. London and York Itail. Co., 463 Arnold v. Bradbury, 507 — V. Holbrooic, 487 Ashby V. Ashby, 317 A.shley v. Ashley, 385 Ashworth v. Stanwise, 502 Askew's Case, 450 Askew r. The Xorth Eastern Kail. Co., 29 Aspinall v. Wake, 316 Astley V. Gurney, 158 Atkins V. Humphrey, 318 Attack V. Bramwell, 301 Atykns v. Pearce, 349 Aubert v. Gray, 365 Austin V. Dowling, 426 — V. Great Western Hail. Co., 261 Bagot r. Easton, 45 Baguelley v, Hawley, 635 Bailey v. Sweeting, 535 Bain v. Fothergill, 559 Baker v. Cartwright, 208 — V. Towry, 365 Baldwin ■;;. Casella, 330 — V. Parker, 537 Ball V. Ray, 448 Balls V. Wcstwood, 630 Balmer v. Gilmau, 577 Balne r. Hutton, 601,619 XIV TABLE OF CASES. Bainfoi-a c. Tuniloy, 488 l^andy v. Oartwiight, 399 Bauk of Australia c. Harding, 395 Bank of Hindostan i'. Smith, 119 Barber v. Fletclier, 368 Barclay v. Bailey, 174 — V. Goocli, 448 Barker r. St. Quentin, 395 — V. Windlo, 214 Barnes r. "Ward, 487 Barnicot v. llann, 49 Baron r. Husband, 449 Barry v. Glover, 517 Bartlett v. Boadle, 461 — V. Wells, 358 Barton v. Williams, 616 Barwick v. English Joint Stock Co., 438 Bateman r. Mid- Wales Rail. Co., 168 — r. Finder, 421 Bates V. Hewett, 367 Bateson v. Gosling, 193, 337 Battenbury v. Vyse, 123, 644 Baxeudale v. Great Eastern Eail. Co., 256, 258 — r. London and South- western Rail. Co., 260, 451 Baxter v. Earl of Portsmoirth, 362 — V. Taylor, 604 Beardman v. AVilson, 403 Beaumont v. Reeve, 357 Beckham v. Drake, 154, 167 Bedford v. McKowl, 568 Bedingfield v. Onslow, 603 Becher i'. Great Eastern Rail. Co., 263 Beechey v. Brown, 208 Beer v. Walker, 636 Beeston ■;;. Collyer, 649 Behn v. Buruess, 214 Behrens v. Gt. Northern Rail. Co., 257 Belfast and Ballymena Rail. Co. v. Keys, 264 Bell V. Bell, 367 — v. Carstairs, 367 • — r. Ingestre, 169 Benecke v. Frost, 22 Bengal Bank v. McJjeod, 191 Benjamin v. Storr, 487 Bennet v. Parker, 599 Bensley v. Bignold, 355 Bentall r. Burn, 517 Beutley v. Craven, 109 Berkeley r. Elderkin, 394 Berridge r. Roberts, 166 l^.erry v. Da Costa, 207 Bessela v. Stern, 207 Betterbee v. Davis, 600 Betterby v. Reed, 619 Betts V. De Vitre, 506 — V. Neilson, 506 — V. Wilmott, 506 Bevan v. Waters, 619 Biccard v. Shepherd, 367 Bickerdike v. Bolmau, 174 Biddle v. Bond, 619 Bill V. Barment, 535 Binnington v. Wallis, 357 Bird V. Brown, 594 — V. Higginson, 399 — V. Jones, 325, 326 Bishop V. Pentland, 357 Blaekham v. Doren, 174 Blades v. Higgs, 126 Blair r. (^rmond, 422 Blake's Case, 105 Blake v. The Albion Life Assurance Co., 27, 40 Blaney v. Hendricks, 170 Blatchford v. Cole, 404 Blenkarn r. Hodges' Distillery, 650 Blenkinsopp v. Clayton, 537 Blight V. Page, 215 Blower r. Great Western Rail. Co., 255 Bloxham v. Saunders, 616 Bloxsome v. Williams, 356 Boardman v. Sill, 621 Bodley v. Reynolds, 619 Bolch V. Smith, 489 Bolingbroke v. Kerr, 316 Bonomi v. Backhouse, 418 Boosey v. Wood, 286 Booth V. Briscoe, 4, 5, 6, 11 — V. Hutchinson, 158 Boulton V. Jones, 247 Bourne v. Fosbroke, 617 Bowen v. Owen, 600 Bower v. Hartley, 22 Bower bank v. Monteiro, 192 Bowry r. Bennet, 356 Bowyer r. Cook, 603 Boyd V. Dubois, 365 — r. Siffkin, 540 Boydell v. Drummond, 421 TABLE OF CASES. XV Bracey v. Carter, 576 Bradshaw v. Beard, 449 — V. Lancashire and York Rail. Co., 316, 464 Brady v. Todd, 650 Braniah. v. Eoberts, 168 Brainley v. Cbestcrden, 403 Brandao v. Bariiett, 620 Brauker v. Melyneux, 617 Brass v. Maitland, 214 Brereton v. Chapman, 215 Bridden v. Gt. Northern Rail. Co., 254 Bridges v. Hawkesworth, 617 Brierley v. Kendall, 601 Briggs V. Jilerchant Traders' Insurance Ass., 364 Brind r. Dale, 264 Bristow V. Eastman, 358 British Columhia, &c., Co. r. Kettle- ship, 259 Broadwood v. Granara, 619 Brock V. Copeland, 330 Brooks V. Mason, 575 BrowTi V. Croft, 650 — V. Johnson, 205 — V. ilcKiunley, 451 — r. Tapscott, 501 Bruce v. Nicopulo, 365 Bryant v. Richardson, 358 V. Warden, 615 Buchanan v. Rucker, 396 Buck V. Hurst, 449 Buckland v. Pappillon, 154 Buckley v. Gross, 617 Buckmaster v. Russell, 420 Budding V. Murdock, 88 Bull V. Price, 247 Ijurdan v. Greenwood, 53, and Ackl. Burdett v. Withers, 401 Burgess v. Clements, 360 — V. Gray, 489 Burgh V. Legge, 172 Burghart v. Hall, 358 Bum V. Phelps, 630 Burnard v. Haggis, 358 Burnet v. Bouch, 247 Burroughs v. Bayne, 618 Burton v. Hughes, 617 Bush V. Steinman, 489 Bushell V. Wheeler, 537 Busk V. Koyal Ex. Ass. Co., 365 Busst V. Gibbons, 426 Butcher v. London and South-Western Rail. Co., 264 Butler v: Swiuerton, 400 — V. Wooleot, 620 Button V. Thomson, 650 Buxton V. Cornish, 644 — z?. Xorth-Eastern Rail. Co., 263 — V. Rust, 535 Byrd v. Nunn, 58, 65, 89 Byrne v. Boadle, 461 Cahill v. London & North- Western Rail. Co., 264 Caine v. Horsfall, 247 Caldwell v. Pagham Harbour, &c., Co., 89 Cambridge v. Anderton, 365 Campanari v. Woodbum, 247 Campbell v. Im Thurn, 159 — V. Wenlock, 630 Canham r. Barry, 332 Canningtou v. Nuttall, 507 Canot V. Hughes, 618 Capes V. Ball, 158 Carew v. Duckworth, 18S Cargill 'i: Bower, 89 Carlon v. Kenealey, 182 Carpenter v. Parker, 631 — V. Smith, 506 Can- V. Lancasliire k Yorkshire Rail. Co., 255 Carratt v. Marley, 326 Carter v. Boehm, 367 — V. Toussaint, 537 Gary v. Gerrish, 449 Cassidy v. Foman, 421 Castle V. Parker, 489 Castrique v. Imrie, 396 Caswell V. Coare, 637 Catling V. King, 68 Caton V. Carlow, 535 Catterall v. Kenyon, 618 Cavey v. Lidljetter, 488 Cazenove v. Britisli Equitable Assur. Co., 385 Chamberlain v. Williamson, 207, 316 Chambers r. Davidson, 620 — r. Donaldson, 347 — v. Miller, 146, 450 XVI TABLE OF CASES. C'lianipion v. Sliort, 539 ChaiuUer v. Villett, 422 Chaplin v. lloyeis, 536 Cliapman v. Keaiie, 192 — V. Pole, 38S — r. Kothwell, 464 — r. Speller, 635 Chartered Mercantile Bank of India, &c. V. Dickson, 172 Chasemore v. Turner, 421 • Chatterton v. Cave, 278 Chesterfield Co. v. Black, 89 Chesterman r. Lamb, 638 Child V. Morley, 588 — V, Stenning, 9, 11 Chilton V. Carrington, 297 Chinery v. Viall, 619 Chown V. Parrott, 578 Christie v. Griggs, 461 Christo})herson v. Bare, 125 Churton v. Douglas, 333 Clare v. Lambert, 450 Claridge r. Dalton, 174 Clark V. Callow, 66, 538 — r. ChaniTicrlain, 618 — ?;. Hooper, 420 Clay V. Thackeray, 607 — V. Yates, 355 Cleave v. Jones, 420 Clift V. Schwabe, 386 Clow V. Brogden, 401 Clowes V. Hilliard, 13 Cocking V. Ward, 107 Coddington r. Paleologo, 538, 539 Coggs V. Bernard, 114, 136, 137 Cohen v. Davidson, 214 CoUard v. South-Eastern Hail. Co., 260 CoUette V. Goode, 63 CoUiDgbourne v. Mantell, 105 Collins V. Blantern, 199 Collis V. Selden, 489 Colven V. Buckle, 417 Colwill V. Pveeves, 601 Commercial Steamship Co. v. Boul- ton, 215 Conflans Stone Quarry Co. v. Parker, 191 Cook V. Cox, 284 — V. Guerra, 631 Cooper V. Elston, 537 — V. Smith, 535 — V. Willomatt, 615 Cootrell V. Dutton, 418 Cope V. Eowlands, 355 Corby v. Hill, 489 Cordery v. Colville, 175 Cork Distilleries Co. v. Great Southern and Western Rail. Co., 259 Cormack v. Grofrian and Another, 18 Cornell v. Hay, Add. xxxvi. Corner v. Straw, 317 Cornfoot v. Fowke, 333, 437 Coruforth v. Smithard, 421 Cort-y. Anibergate Rail. Co., 540 Cory V. Scott, 175 — V. Thames Iron Works Co., 538 Couch V. Tregouning, 449 Couturier v. Hastie, 109, 336 Cowan V. Milburn, 356 Coward v. Baddeley, 125 — V. Gregory, 319, 401 Cowie V. Sterling, 181 Cox V. Brain, 599 — r. Leach, 576 — V. Troy, 172 Cragoe v. Jones, 337 Craig V. Phillips, Add. xxxvi. Crawford v. Cinnamond, 154 Croft V. Alison, 462 Crookewit ?'. Fletcher, 119 Cross V. Eglin, 539 Crossfield v. Such, 297 Crouch v. Great Northern Rail. Co., 260 — 'V. London and North Western Rail. Co., 255 — V. Tregouning, 630 Crowe V. Barnicott, 79 Crowley's Claim, 589 Crump V. Lambert, 487, 488 Cubitt V. Porter, 604 CuUen V. Thomso:i's Trustees, 438 Cumber v. Wane, 105 Cumniing v. Bedborough, 631 — V. Brown, 194 — V. Hill, 120 Cunard t\ Hyde, 368 Currie v. Misa, 191 Cusack V. Robinson, 536 Cuthbertson v. Irving, 515 Czech V. General Steam Navigation Co., 262 Da Costa v. Dares, 200 TABLE OF CASES. XVll Dalby r. India, &c., Life Assurance Co., 385 Dalton V. South Eastern Rail. Co., 317 Dangwell v. Dunster, 193 Davey Brothers v. Garret, 34, 37, 38 Davidson v. Cooper, 119 Davies r. Jenkins, 348 — V. Mann, 462 — r. Price, 133 — V. Underwood, 401 — V. Williams, 567 Davis V. Bomford, 208 Davison i'. Chalmers, 154 — r. Duncan, 286 — V. Gent, 630 Dawkins v. Penrhyn (Lord), 69, 90 — V. Rokeby (Lord), 286 Dawson v. Chamney, 360 Dax V. Ward, 577 De Cosse Brissac v. Rathbone, 396 Degg r. Midland Rail. Co., 463 De Hart v. Stevenson, 7, 16 De Medina v. Grove, 451 Denew v. Daverell, 644 De Nicholls v. Saunders, 631 Dennett v. Atherton, 400 Denton v. Great Northern Rail. Co., 263 — V. Strong, 133 Derks v. Richards, 621 Devaux v. I'Anson, 364 — V. Steiukeller, 438 Dew V. Parsons, 450 Dews V. Riley, 48 Dick V. Tolhausen, 396 Dickinson v. Valpy, 168 Dingley v. Sales, 402 Dixon V. Birch, 395 — r. Clark, 599 — V. Sadler, 367 — V. Stansfield, 620 — V. Yates, 594 Dodd r. Acklorn, 630 Doe V. Rowlands, 401 Doe d. Mosecraft v. Meux, 517 — Rigge I'. Bell, 516 — Roby V. Maisey, 518 Donald v. Suckling, 157, 619 Donellan v. Read, 534 Dormay v. BoiTodailc, 386 Downes v. Richardson, 191 Drain v. Shepherd, 267 Draper v. Crofts, 629 Diiver v. Burton, 448 Duckett V. Gower, 13 Duckworth r. Johnson, 317 Dudgeon c. Pembroke, 367, 368 Dudley v. Follcot, 400 Duke of Brunswick v. Harmer, 287 — Devonshire r. Barrow Hematite Steel Co. (Lim.), 269 Earl of Lonsdale v. Rigg, 604 • — • Spencer r. Swannell, 48 Early v. Garrett, 635 Earp V. Henderson, 41, 87 East. Counties Rail. Co. v. Darling, 605 East India Co. v. Paul, 418 Eastwood V. Kenyon, 336 Ecclesiastical Comrs. r. Merral, 516 Edgell V. Day, 109, 449 Edward v. Coombe, 159 — 1'. Lowther, 18 Efford V. Burgess, 631 Eicliholtz V. Bannister, 635 Eicke V. Nokes, 575 Elbinger, &c., v. Armstrong, 539 Ellen V. Topp, 120 Elliot V. Kemp, 601, 617 — V. R. Exch. Ass. Co., 105 — V. Thomas, 537 EUis V. Munson, 78 — V. Sheffield Gas Consumers' Co., 489 — V. Wilmott, 531 Elmore v. Kingscotc, 535 — V. Stone, 537 Elmslie v. Boursier, 506 Elsworth V. Alliance Marine Insurancft Co., 388 Emcrtou v. Matthews, 636 Emmersou v. Heelis, 536 Engell V. Fitch, 559 England v. Davidson, 533 Erichsen v. Barkworth, 215 Evans v. P>uck, 11, 23, 76 — V. Kdmunds, 332 — V. Judkins, 600 — V. Nichol, 617 — V. Owen, 519 — V. Roe, 648 — V. Walton, 567 Everett v. Robertson, 421 b XVIU TABLE OF CASES. Exall V. Partridgo, 448 Exou V. Eussell, 181 Re parte, Barnett, 158 — ]>rooke, 157 — VakU, 404 — Chalmers, 616 — Clarke, 650 — Dawes, 156 — Dewhurst, 154 — Duignan, 158 — Eyles, 158 — Gorley, 401 — Halford, 159 — Hammond, 158 — Jacobs, 159, 531 — Logan, 650 — Lovering, 156 — Munro, 576 — Peacock, 158 — Pearson, 157 — Pulbrook, 620 — Eayuer, 157 — Rocke, 156 — Schultz, 156 — Topping, 421 — Villars, 157 — Wier, 153 — Williams, 156 Eyre v. Waller, 165 F AIRMAN i\ Oakford, 649 Farbrother v. Simmons, 536 Farhall v. Farhall, 317 Farnswortli r. Garrard, 644 Farnworth v. Hyde, 365 Farquhar v. Southey, 193 Fawcett v. Cash, 649 Fayle v. Bird, 167 Feather v. The Queen, 506 Feilden v. Slater, 402 Fenn v. Bittleson, 615 Fenwiek v. Laycock, 356 Feret v. Hill, 400 Ferguson v. Mahon, 396 Firth V. Thrush, 175, 192 Fletcher v. Rylands, 491 — V. Tayleur, 538 Flight I'. Maclean, 181 Flint V. Flemyng, 364 Flood w. Paterson, 418 Flureau v. Thornhill, 559 P'olcy V. United Fire, &c.. Insurance Co., 364 Ford V. Beech, 531 Forster v. Dawber, 193 — r. Mackreth, 167 — V. Parker, 175 Forsyth v. Bristowe, 422 Foster v. Lawson, 502 Fowler v. Down, 617 — V. Hollins, 617 Fox v. Broilerick, 283 France v. Gaudet, 618 Francis v. Cockrell, 262 Frayes v. Worms, 396 Freeman v. Birch, 261 Freeth v. Burr, 538 French v. French, 107 Fruber v. Knorp, 22 Fuentas v. Montis, 620 Furness v. Booth, 74 Gabell v. South Eastern Rail. Co., 265 Gainsford v. Carroll, 538 Gale V. Leckie, 501 Gallin v. London and North Western Rail. Co., 263 Gandy v. Adelaide Marine Insurance Co., 367 Gardiner v. Williamson, 399 Gardner v. London Chatham and Dover Rail Co., 518 Gardon v. Bruce, 414 Garnett v. M'Kewan, 147 Garrard v. Cottrell, 448 Garton v. Bristol and Exeter Rail. Co., 254 Gatsole v. Mathers, 284 Gaudet v. Brown, 215 Gaussen v. Morton, 108 Gautret v. Egerton, 489 Gaj^ord v. Moffat, 605, 607 — V. Nicholls, 489 Gee V. Metropolitan Rail. Co., 461 Geipel v. Smith, 365 Geill V. Jeremy, 192 Gerhard v. Bates, 438 Gibb V. Mather, 174 Gibbon v. Budd, 433 Gibbons v. Pepper, 125 Gibbs V. Fremont, 170 Gibson v, Carruthers, 154 TABLE OF CASES. XIX Gibson v. Holland, 535 — V. Sturge, 215 Gill r. Manchester, &c., Kail. Co., 255 Gladman v. Johnson, 330 Gledstane v. Hewitt, 296 Glen V. Dungey, 629 Godard v. Gray, 396 Godefroy v. Dalton, 577 — V. Jay, 578 Godwin v. Frances, 558, 559 Golding r. Wliavton Saltworks Co., 37 Goldney v. Lording, 159 Goman v. Salisbiiry, 530 Gompertz v. Denton, 637 Goodman v. Chase, 336 — V. Griffiths, 535 Gordon f. Harper, 615 Gonis.sen v. Perrin, 540 Goss V. Nugent (Lord), 530 Gover's Case, Add. xxxxvi. Graham v. Musson, 536 Grangers. Collins, 401 Grant v. Fletcher, 536 Graves v. Ashford, 278 Gray v. Carr, 216 — V. Fowler, 558 Grazebrook v. Davis, 133 Great Northern Rail. Co. v. Hawcroft, 263, 264 — — — V. Swaffield, 259 Great Western Rail. Co. v. Kedmayne, 260 Green v. Bartlett, 247 — V. Brown, 365 — V. Crockett, 578 — V. Bales, 401 — V. Wynn, 531 — V. Young, 366 Greenham v. Gray, 501 Greenslade v. Tapscott, 402 Greenwood v. Moss, 517 iJregson v. Harrison, 402 — V. Kuck, 536 Griffin v. Langfield, 358 <;nll V. General Iron Screw Colliery Co., 262 Grinnell v. Wells, 567 Grissell V. Bristowe, 588 Guntou V. Nurse, 6 1 8 Guniey v, Behrend, 194 Hadley v. Taylor, 487 Haigh V. De la Cour, 368 HaUe V. Smith, 195 Hale V. Rawson, 540 Hales V. London and North Western Rail Co., 260 Halford v. Kymer, 385 Hall V. City of London Breweiy Co., 399, 400 — V. Eve, 42, 84 — r. Flocktou, 105 — V. Odber, 395 — V. Wright, 208 Halliday i\ Holgate, 619 Halliwell v. Counsell, 90, 121 Halstead «. Skelton, 167 Hamilton v. Watson, 337 Hamlet v. Richardson, 451 Hammack v. White, 461 Hammond r. Smith, 420 Hancock v. Lablache, 348 Hanmer v. Flight, 38, 39 Hansard v. Robinson, 191 Hanslip v. Padwick, 558, 559 Hanson v. Annitage, 537 Hardcastle r. South Yorkshire Rail. Co. 487 Harding v. Edgecumbe, 419 Hardman v. North Eastern Rail. Co., 495 — Willcock, 109 Harman i\ Johnson, 578 Harner v. Steele, 193 Harper v. Godsell, 616 Harris v. Gamble, 62, 74, 76 — V. Great Western Rail. Co., 265 — r. James, 490 — V. Quine, 422 Harrison v. Bush, 286 — r. Good, 402 — V. Ruscoe, 192 Hart V. Baxendale, 260 — V. Wall, 292 — V. Windsor, 399 Hartland v. General Exchange P>ai)k, 649 — V. Jukes, 418 Hartley v. Case, 192 — V. Hitchcock, 621 — V. Moxhani, 601 Harvey v. Bridges, 126 12 XX TABLE OF CASES. Hanvood c. Great Northern Ivail. Co., 507 Hassal v. "Wri^lit, 507 Ilaiigliton V. Empire Miiriiic Insurance Co., 364 Havens v. MiJdleton, 402 Hawkes v. Orton, 400 Heald V. Carey, 618 Heap r. Uomn, 70, 209 Hearn v. London and South Western Kail. Co., 257 Heath v. Frj^nn, 519 — V. Smith, 506 Heather y. Webb, 159 Hebdon v. West, 385 Hedley v. Bainbridge, 167 Heilbut V. Nevill, 155, 168 Heilbutt r. Hickson, 539 Hellier v. Selkox, 629 Henderson v. Eason, 630 — V. Henderson, 394, 395, 396 — V. London and South West- ern Eail. Co., 257 — V. Sijuire, 403 Henry v. Henry, Add. Hesketh v. Fawcett, 600 Heugh r. London and North Western RaiL Co., 259, 617 Heynian v. Nea], 536 Hickman v. Haynes, 530 — i'. Machin, 630 Higgins V. Titt, 355 Hill V. Curtis, 318 — r. Featherstonehaugh, 434 — V. Fox, 355 — r. Cray, 332 — V. Kitching, 247 — V. Royds, 147, 449 — V. Secretan, 364 — V. Wilson, 449 Hillman r. Mayhew, 84 Hinde v. Whitehouse, 536, 537 Hinton v. Debbin, 257 Hiort V. Bott, 617 Hiscox V. Batchellor, 649 Hoadly v. McLain, 535 Hoare v. Eennie, 537 Hobbs r. South Western Rail. Co., 264 Hodges V. Earl of Lichfield, 550 — V. Hodges, 31 Hodgson V. Sydney, 155 — V. Queenborough, 631 Holden v. King, 126 Holdsworth v. Hunter, 179 — r. Wise, 365 Hole V. Barlow, 488 — r. Sittingbourne, 490 Holliday r. Camsell, 616 Holloway v. York, 78, 80 Holmes v. Goring, 605 — V. Jacques, 181 — V. Mitchell, 336 — V. Wilson, 603 Holt r. Ward, 207 Honduras Inter-Oceanic Rail. Co. ?'. Lefevre and another, 8, 10, 13, 14, 45 Hookpayton r. Bussell, 394 Hooper v. Burness, 216 — V. Stevens, 419 — V. Williams, 181 HojDkinson v. Smith, 576 Hopwood r. Thorn, 286 Home V. Midland Rail. Co., 260 Horsefall v. Thomas, 332 Horwell i\ London General Omnibus Co., 22 Hough V. May, 600 Houstman v. Thornton, 365 Howard v. Danbury, 448 — V. Hodges, 356 — V. Lovegrove, 449 — ;'. Sheward, 637 Howcutt i\ Bonser, 422 Howlett V. Haswell, 358 Howse V. Crowe, 619 Hubert v. Turner, 536 Hudston r. ]\Iidland Rail. Co., 263 Hughes 1'. Humphrys, 120 — V. Macfie, 463 Hume V. Peploe, 599 Hunt V. Bishop, 516 — r. Griffith, 516 — V. Maniere, 109 — V. Remnant, 516 — V. Royal Exchange Ass. Co., 365 Hunter v. Caldwell, 577 — V. Gibbons, 422 — V. Welsh, 108 — r. Wilson, 191 Huntley r. Bulwer, 576 Hurst V. Great Western Rail. Co., 263 TABLE OF CASES. XXI Hiirst V. Paiker, 421 — V. Usborne, 214 Hutchinson v. Copestake, 307 Hutton V. Bragg, 214 Hyams v. Webster, 490 Hyatt V. Griffith, 516 Hyde v. Buhner, 439 — V. Trent and Jlersey Navigation Co., 259 luBOT and Attorney- General v. Royal College of Surgeons, 433 Ihbotson V. Whitworth, 165 Imperial Gas Co. r. London Gas Co., 417, 422 Inchbald v. Kobinsou, 488 Indermaur v. Dames, 488 Ingledew v. Douglas, 358 III re Dare Yalle}- Kail. Co., 133 — East of England Banking Co. ,170 — River Steamer Co., 421 — Sadd, 577 — Westzenthus, 194 Ireland v. Livingstone, 539 Irving V. Greenwood, 298 — V. Manning, 366 — V. Vitch, 419 Isherwood v. AVliitmoi"e, 539 Jacksox v. Everett, 395 — V. Lowe, 535 — V. Pesked, 604 — r. Sraithson, 330 — V. The Metropolitan Kail. Co., 461, 463 — V. Union Marine Insurance Co., 214 — V. Wooley, 419 Jacobs V. Latour, 621 — V. Seward, 616 Jameson v. Swinton, 192 .lamieson c. Laurie, 215 Jeffreys v. Evans, 575 Jeffries v. Great Western Kail. Co., 619 Jennings »■. I'andall, 358 .Fewan r. Whitworth, 620 Jewsbury v. Mummery, 319 Johnasson v. Bonhote, 68 — c. Young, 539 Johnson v. Alston, 577 — V. Durant, 134 Johnson v. Gallagher, 349 — V. Huddlestone, 404 — V. Midland Rail. Co., 254, 255, 259 — V. R. M. Packet Co., 448 — V. Stear, 619 Jollife V. Wallasey Local Board, 4iS Jolly V. Kees, 349 Jones V. Bone, 402 — V. Broadhurst, 105 — V. Brown, 616 — V. Chapman, 605 — V. Harbour, 156 — V. Hill, 158 — ('. Just, 636, 637 — f. King, 315 — v, Neptune Marine Insurance Co., 364 — V. Pearle, 621 — V. Perry, 330 — V. Ryder, 420 — V. Tarleton, 621 — 'i: Turner, 28 — '0. Williams, 48 Jordan v. Moore, 507 Judge 0. Cox, 330 Kearney v. Loudon, Jkighton, and South Coast Rail. Co., 461 Kebble v. Gough, 537 Keech v. Hall, 518 Keene v. Keene, 170 Kell f. Henderson, 215 Kelly V. Morris, 277 — %'. Solari, 450 Kendal v. Wood, 450 Kent v. Midland Rail. Co., 258 Kenworthy r. Schotield, 535, 5;!6 Kerford v. Mondel, 621 Kershaw r. Ogden, 536 Keyworth r. Hill, 617 Kimberley r. Dick, 123 King V. Corke, 89 — V. Price, 638 Kingdon x. Nottle, 315 Kirkstale lirewery Co. r. Eurness Kail. Co., 257 Knight V. Burgess, 154 — V. Chambers, 449 — r. Fox, 489, 490 Knowlman v. Bluett, 534 XX 11 TABLE OF CASES. Koebel r. Saiunlers, 367 Ladbroke v. Bairett, 123 Lade v. Shepherd, 604 Laffite V. Slatter, 175 Lafond v. Ruddock, 419 Laird v. Pim, 558 La Nenvelle v. Nourse, 635 Langston v. Covney, 167 Langton v. Carleton, 649 Last r. Dinn, 629 Latimer v. Bell, 89 Latter r. White, 297 Lavell V. Howell, 463 Lavery v. Turley, 105 Lawrence v. Sydebottom, 366 Laws V. Rand, 187 Lea V. "Whitaker, 559 Leach v. Buchanan, 168 Leake v. Loveday, 619 Leask r. Scott, 194 Le Chenimant i'. Pearson, 366 Le Conteur r. London and South Western Rail. Co., 256 Lee V. C'olyer, 72 — r. Lancashire and Yorkshire Rail. Co., 106 — V. Walker, 578 — V. Wilmot, 421 Leeds v. Lancashire, 192 Lees v. Patterson, 81 Leese v. Martin, 620 Leigh V. Baker, 166 Lekeux v. Nash, 403 Leman v. Fletcher, 433 Leverson v. Lane, 168 Levi V. Barnard, 621 Levy V. Green, 539 Lewis V. Gonipetz, 192 — r. Higgin, 286 — ?•. Jones, 337 — V. Peake, 637 — V. Samuel, 576 Leymau v. Latinrer, 284 Lickbarrow v. Mason, 621 Lidgett V. Scretan, 366 Lievcsley v. Gilmore, 394 Liggins V. Inge, 306 Lilley v. Elwins, 650 Lilly V. Hays, 449 Lindo V. Unswortb, 193 Line r. Stephenson, 399 Linsell i: Bonsor, 419 Lisburn, Earl of, v. Davies, 516 Lishman v. N. ilaritime Insurance Co., 367 Liver Alkali Co. r. Johnson, 254 Liverpool Adelphi v. Fairhurst, 358 Lloyd V. Johnson, 356 Lloyd's Banking Co. v. Ogle, 166 Lockwood V. Levick, 247 Lockyer v. Jones, 600 London and North Western Rail. Co. V. Bartlett, 259 _ _ _ V. Garnett, 402 _ — — r. Glyn, 388 _ _ — r. James, 262 — — — V. West, 515 Longv. Orsi, 576 Lord Egremont v. Pulman, 306 Lovegrove v. White, 578 Low V. Chefney, 191 — V. Routledge, 278 Lowe V. Carpenter, 607 Lowis V. Rumney, 319 Lucas r. AVorswiek, 450 Lumley v. Musgrave, 170 Lundie r. Robertson, 175 Lynch v. Dalzell, 388 — v. Hamilton, 367 — V. Nurden, 463 Lysaght r. Bryant, 192 Maanss v. Henderson, 620 Mabbeley v. Shei)herd, 537 Macdonald r. Law, &c., Insurance Co., 385 — V. Longbottom, 539 Macgregor v. Deal and Dover Rail. Co.,. 355 Mackay v. Commercial Bank of N, Brunswick, 332, 438 Mackenzie v. Stock, 109 Macknee v. Gorst, 620 Macrow v. Great Western Rail. Co., 263' Magee v. Lavell, 559 Mainwaring v. Brandon, 108 — V. Leslie, 349 ]\Iaitland v. Goldney, 502 Malachy r. Soper, 292 Maiden v. Tyson, 558 Mailalieu v. Hodgson, 332 TABLE OF CASES. Maltby v. Murrells, 166 Manby v. Scott, 349 Manchester, Sheffield, &c., Eail. Cos. V. Brooks, 78 Mangan r. Atterton, 463 Manghain v. Sharpe, 137 Manvill v. Tliompsou, 567 Mare v. Charles, 168 Marks v. Feldman, 155 Marsden v. Read, 367 Marsh v. The Mayor and Aldermen of Pontefract, 32 Marshall v. King, 158 — V. Parsons, 248 Marston v. Phillips, 617 Martin v. Great Indian Peninsular Rail. Co., 261, 262 Martindale v. Smith, 538 Marvin v. Wallis, 537 Mason v. "Williams, 438 Masper v. Brovra, 126 Master v. Miller, 191 Masters v. Ibberson, 191 Matthews v. Biddulpli, 327 Maxwell v. Hogg, 277 May V. Burdett, 330 Mayor of Poole v. Whitt, 631 McCance v. London and North "Western Rail Co., 261 McCarthy v. Metropolitan Board of Works, 48 McCawley v. Furness Rail. Co., 263 McCombie v. Davies, 617 McGregor v. High, 619 McKean v. Mclvor, 259, 617 McKenzie v. Hancock, 637 McKinnell v. Robinson, 355 McMahon v. Burchell, 630 McManus v. Crickett, 462 McMasters v. Schoobrcd, 365 Mead v. Davieson, 364 — V. Great Eastern Rail. Co., 261 Megginson v. Harper, 419 Megruth v. Gray, 531 Melhado v. "Watson, 159 Mellish V. Rawdon, 172 Mcnetone v. Athawcs, 645 Meredith v. Meigh, 537 Merest v. Harvey, 603 Mt'tcalfe V. London and Brighton Rail. Co., 261 Metcalfe r. The Britannia Ironworks, 216 Metropolitan Rail. Co. v. Defries, 30 Metzner v. Parker, 649 M'Gowan i-. Dyer, 438 MidtUeton v. Brewer, 599 Miller r. Biddle, 181 Miles' Claim, 167 Milford V. Mayer, 172 Milissich r. Lloyd, 286 Millgate v. Kebble, 615, 616 Mills V. East London Union, 401 — v. Griffiths, 20 — V. Oddy, 193 Millward v. Littlewood, 205 Milner v. Field, 644 Mitchel V. Reynolds, 356 Mitchell V. Darthey, 215 Molton V. Camroux, 362 Mondel r. Steel, 638 Moneax v. Goreham, 616 Montagu v. Benedict, 349 — V. Perkins, 167 Montoya v. London Assurance Co., 364 Moodie v. Bannister, 422 Moore v. Burke, 438 — r. Bushell, 147 — V. Pyrke, 448 — V. Rawson, 306 Moors-le-Blanch v. Wilson, 400 Morgan v. Baine, 616 — V. Birnie, 644 — V. Ravey, 360 — V. Vale of Neath Rail. Co., 463 — V. "Worthington, 68 Morison i: Gtaj, 617 — V. Thompson, 449 Morley v. Attenborough, 635, 636 Morris c. Ogden, 519 ilomson V. Chadwick, 631 — V. Universal Marine Insurance Co., 367 Mortimer v. Preedy, 629 Morton v. Harden, 502 — V. Tibett, 537 Mosely v. Rendell, 316 Moss I'. Hall, 193 Mostyn v. "West Mostyn Co., 77 Moule V. Brown, 187 — V. Garrett, 449 Mountnoy v. Collier, 630 XXIV TABLE OF CASES. Wountsteplien r. Lakeiiuui, 33tj Jlullett V. Mason, 438 Jlullick r. l\adakiss('n. 172 JIulligau V. Cole, 286 Munroe v. rilkiiigton, 396, 397 ^lurphy V. Smith, 463 Jlurray v. Clayton, 507 — r. Cunie, 489 Myatt V. St. Helen's Rail. Co., 518 Jlyers v. London and South Western Rail. Co., 254 Mytton r. Gilbert, 518 — V. Midland Rail. Co., 263 Xaorogi v. Chartered Bank of India, 158 Nash V. Hodgson, 419 Kaylor v. Taylor, 365 Neale v. Ratclitfe, 401 Nelson 1-, The Liverpool Brewery Co., 490 Newell V. National and Provincial Bank of England, 76 New' Quebrada Co. v. Carr, 158 New Westminster Brewery Co. v. Hannah, 18 Newton r. Beck, 296 Nicholls r. The Hibernian Joint Stock Banking Co., Add. xxxv. Nichols V. Bastard, 615 — V. Marsland, 490 Nicholson v. Cooper, 619 — r. Kicketts, 167 Nickells v. Atherstone, 630 Nicklin v. AVilliams, 418 Noble V. Ward, 530, 533 Norden v. Dempsey, 215 Norman v. Villars, 347 Norris v. Beazley, 16, 165 Northam r. Bowden, 617 — r. Hurley, 306 North British Insurance Co. v. Lloyd, 337 Norton v. Ellam, 167 Novelli V. Rossi, 119 Nugent II Smith, 254 Nye V. Moseley, 357 Oastleii v. Henderson, 630 Ochsenbein v. Papelier, 396 Odell V. Wake, 403 O'Farrell r. Stephenson, 84 and Jdd. xxxv. Ogden V. Benas, 147 Oger V. Bradnum, 165 Ogg V. Shortei-, 616 — V. Shuter, 194 Ogle V. Vane, 538 O'Hanlan v. Great Western Rail. Co., 259 Ollive l: Booker, 244 Olliver v. Olliver, 296 Onslow V. Corrie, 403 Oppenheim ■;;. Russell, 620 Oridge v. Sherborne, 182 Original Hartlepool Collieries Co, v. Gibbs, 78 Owen V. Van Oster, 168 Owston V. Ogle, 501 Oxlade v. North Eastern Rail. Co., 255 PADVvacK V. Scott, 75 Page V. Eduljee, 616 Panama, &c. Mail Co. v. Kennedy, 332 Pamlon i'. Watson,. 368 Parker 4'. Gordon, 174 — V. Ibbetson, 649 — V. Mitchell, 607 — r. Rawlings, 538 — V. South Eastern Rail, Co., 265 Parkes v. Prescott, 286 — V. Stevens, 507 Parmiter v. Parmiter, 420 Parton v. Crofts, 536 Partridge v. Scott, 607 Patrick v. Sheddon, 396 Patscheider v. Great Western Rail. Co., 264 Patten r. Patten, 518 — V. Rea, 462 Paull V. Simpson, 403 Payne v. Haine, 401 — V. Rogers, 490 Pearce v. Brooks, 356 — V. Coates, 402 Pearson v. Spencer, 605 Peek V. Gurney, 437, 438 — V. Staffordshire Rail. Co., 258 Peirce v. Corf, 536 Pemberton v. Chapman, 320 Penn v. Bibby, 507 TABLE OF CASES. Peun V. Jack, 506 Penniel v. Haiborne, 402 Peruvian Eail. Co. v. Thames & Mersey ilarine Insurance Co., 168 Peter v. Compton, 534 Peters v. Staveley, 649 Petit V. Benson, 167 Petre (Lord) v. Heneage, 617 Phelps V. London & North Western Rail. Co., 263 Phene v. Popplewell, 630 Phillips V. Baruet, 347 — V. Bislolli, 536 — V. Bridge, 517 — V. Clift, 120 — V. Foxall, 650 — V. Headlam, 364 — t\ Jansen, 283 — ?■. Jones, 297 — V. Rodie, 216 Philpott i: Kelly, 617 Pic^kering r. Busk, 637 Pickford t". Grand Junction Eail. Co., 254 Pierce v. Fotliergill, 170 Pierson v. Hutchinson, 191 Pigot's case, 119 Pillat V. Boosey, 631 Pillott V. Wilkinson, 618 Pilniore v. Hood, 332 Pim V. Keid, 388 Pinnock v. Harrison, 619 Pirie v. Steele, 366 Pitcher v. Bailey, 449 Pitts V. Beckett, 536 Piatt V. Bromage, 450 Plum V. Normanton Iron, &c. Co., 93 Plumer v. Gregory, 578 Plummer v. Woodburne, 396 Pocock V. Morse, 326 Poingdestre v. 11. Exch. Ass. Co., 366 Polglass V. Oliver, 600 Pollard V. liank of Kiigland, 450 Pollock V. Campbell, 165 — V. Stacey, 629 Poole r. Tanbridge, 599 Poplett V. Stockdale, 355 Pothonier v. Dawson, 618 Pott V. Clegg, 418 Potter V. Home &. Colonial Insur. Co., 50, 52 Potter V. Metropolitan District Hail. Co. 316 — V. Rankin, 366 Potts V. Sparrow, 577 Pounsett V. Fuller. 55S, 559 Powell y. Hayland, 617 Powles V. Innes, 363 Prentice v. Elliot, 630 Prevost V. Great Eastern Rail. Co., 263 Price V. Kirkham, 193 Prickett v. Badger, 247 Priestley v. Fowler, 463 Prior V. Wilson, 260 Proctor V. Brotherton, 347 Purcell V. Sowler, 286 Purnell ■;;. Young, 605 Purvis V. Landell, 577 Pybus V. Gibb, 337 Pyni V. Great Northern Railway Co., — 317 Quebec Marine Insui;. Co. r. Com- mercial Bank of Canada, 367 Raby v. Gilbert, 175 Rackham v. Marriott, 421 Radenhurst v. Bates, 501 Radley v. London &, North ^\■esteru RaU. Co., 462 Ramsden v. Brearley, 346 Ransford v. Copeland, 356 liaphael v. Bank of England, 191 Rawlinson v. Marriot, 405 Rayiier v. Grote, 537 Jie an arbitration between liobiit Phillips and John Brook Gill, 135 Jie Jones" Estate, 158 £e New Hamburg Rail. Co., 239 Read v. Coker, 125 — V. Goldring, 600 — v. Legard, 362 Reader v. Kingham, 336 Readhead v. Midland Rail. Co., 262 Reddie v. Scoolt, 568 Redman v. Wilson, 365 Reed v. Royal Exchange Ass. Co., 385 Reg. V. Burback, 120 — V. Cutler, 507 — /•. Iluggins, 330 — r. Sliindeld, 120 — v. Smith, 121 XXVI TABLE OF CASES. Eeg. r. "White, 487 Eeid t: Halte, 644 lleimeis r. Diuce, 396 Kenshaw ?•. Bean, 307 Kestell r. Steward, 49 Eew V. Pettat, 419 Eex V. The Commissioners of Cocker- mouth Inclosure Act, 416 Eeynokls r. Chettle, 174 — T. Dayle, 415 — r. Fenton, 396 Eice i\ Baxendale, 259 Eich V. Bastcrfield, 490 Eichards v. London, Brighton, & South Coast Kail. Co., 263, 264 — V. Kichards, 170 Eichardson r. Cliasson, 558 — V. North Eastern Rail. Co., 255 — r. Sylvester, 438 Eichbell v. Alexander, 154 Eickett V. Metroiiolitan Rail. Co., 487 — V. Tallick, 631 Eidgway v. Hungerford Market Co., 650 Eiding v. Smith, 284 Eigge V. Burbidge, 638 Eight V. Beard, 516 Eingland r. Lowndes, 133 Robart v. Knouth, 358 Roberts v. Crowe, 449 — V. Eberhardt, 450 — V. Roberts, 284 — r. Smith, 464 — V. Taylor, 296 — r. Wyatt, 616 Robertson v. Howard, 25 — V. Strnth, 395, 396 Robinson r. Emanuel, 576 — V. Hawksford, 187 — r. Hindman, 649 — V. Reynolds, 193 Rodger v. The Comptoir d'Escomptie de Paris, 194 Rodocanachi v. Elliott, 365 Roe V. Da\-is, 89 Rolfe V. Maclaren, 85, 86 Eolin V. Steward, 146 Rollason t\ Leon, 398 Rolph V. Crouch, 400, 637 Eoothv. Wilson, 114 Eo.sewame v. Billing, 356, 449 Routledgc r. Ramsay, 421 Roux V. Salvador, 365 Rowe V. Brenton, 617 — r. Tipper, 192 Rowson V. Eickc, 629 Rumball v. Ball, 181 — V. Wright, 630 Runnacles v. Mesquita, 166 Rushforth v. Hadfield, 620 Rushworth v. Taylor, 618 Russell V. Phillips, 167 — V. Thornton, 367 Ryall V. Rich, 405 Ryan v. Thomson, 631 Ryder v. Townsend, 600 — r. Wombwell, 357, 358 Saddleus' Co. V. Badcock, 388 Salvin t: North Branchpath Coal Co., 488 Sanderson v. Bowes, 181 Sands v. Clarke, 181 Sargent -y. Morris, 617 Saul r. Jones, 174 Saunders v. Merryweather, 516 Saunderson v. Oridge, 193 Saxby v. Manchester & Sheffield Rail. Co., 409 Scaife v. Tarrant, 255 Schibby v. Westenholz, 396 Schneider v. Norris, 530 Scholey v. Walton, 421 Schrceder v. Central Bank of London, 239 Scott V. Dixon, 437 — V. Eastern Counties Rail. Co., 537 — V. London Dock Co., 461 — i\ Newington, 621 — V. Standfield, 286 — V. Uxbridge Rail. Co., 600 Scrimigeour's Claim, 589 Seaman v. Fonerau, 368 Seamen r. Nethercliffe, 286 Searles v. Sudgrove, 599 Seatou ('. Benedict, 358 Seegar v. Duthie, 214 Seymour v. Maddock, 448 Sharman v. Brant, 536 Shaw V. Order, 630 — V. Roberts, 388 Shepherd v. Beane, 73, 74 TABLE OF CASES. Shepherd v. Bristol & Exeter Rail. Co., 259 Shii^ton V. Thornton, 216 Short V. JMcCarthj', 417 Sievewright v. Archibald, 536 Sikes V. "Wild, 558, 559 Simpson v. Bathhurst, 154 — r. Crippin, 538, 539 — V. Henuing, 159 Singleton v. Barrett, 107 Skinner v. London & Brighton Eail. Co., 461 Slater v. Jones, 1 58 — V. Binder, 156 — r. Swan, 601 Sleigh r. Sleigh, 448 Slim V. Great Northern Piail. Co., 259 Small r. Gibson, 364 Smith V. A.shford, 302 — r. Cook, 114 — V. Green, 638 — r. Great Eastern Eail. Co., 330 — i\ Haseltine, 13, 18 — V. Hughes, 332, 636 — V. Lindo, 355, 588 — r. London & St. Katherine's Docks Co., 489 -^ V. Lovell, 105 — V. Man-able, 630 — V. Moore, 533 — V. Mullet, 192 — I'. Myers, 540 — v. Nicholls, 395 — i\ Parsons, 638 — r. Peat, 401 — V. Pioyston, GO') — r. Steele, 464 — V. Tebbit, 518 — V. White, 356, 357 — r. AVoodfine, 207 Soady r. Turnbull, 319 Solly V. Forbes, 531 Soiich V. Strawbridge, 534, 644 Southcote V. Stanley, 489 Spears r. Hartly. 620, 621 Speight V. Oliviera, 517 Spencer's Case, 399 Spice V. Bacon, 359 Spiers r. Brown, 277 Spindler r. Grcllett, 181 Spurr r. IFall, 40, 50, 315,and^fW.xxxi. S(|uire v. "Wheeler, 359 Stainbank i: Shepherd, 363 Standon v. Christmas, 401 Stanley v. Haynes, 399, 340 — ('. Towgood, 401 Stanton i'. Kichardson, 215 Startup r. Macdonald, 539 St. Aubyns v. Smart, 578 Stead V. Anderson, 506 Steele v. AVilliams, 450 St. Ellen's Smelting Co. v. Tippins, 488 Stevens v. Mid. Eail Co., 426 Stevenson r. Newnharm, 155 Steward v. Gromett, 426 Stewart v. London and Xorth- "Western Eaih Co., 258, 263 Stierneld r. Holden, 618 Stoeken r. Collins, 193 Stokes r. I^ewis, 448 Storey r. Asliton, 462 Stratton r. Matthews, 448 Stubbs r. Holywell Eail., 316, 317 Suffield V. Brown, 605 Summers v. The City Bank, 347 Sunbolf r. Alford, 619 Sutton V. Buck, 617 — r. Great "Western Eail. Co., 450 — V. Temple, 399 Swan r. Cox, 167 Tallay v. Great "Western Eail. Co., 263, 264 Tanner v. Smart, 421, 422 Tapling v. Jones, 307 Tarrant r. Webb, 464 Tassell v. Lewis, 174 Tatton t: "Wade, 439 Taylor r. Caldwell, 136 — r. Chester, 355 — V. Chichester and Midhurst Eail. Co., 355 — V. Glass works, 576 — v. Great Northern Eail. Co. 254 — V. Parry, 617 Templar v. McLachlan, 576 Tew V. Jones, 629 The Helene, 262 The Jane, 366 Thomas v. Piishop, 168 — V. Evan.s, 600 — V. Hawke.s, 107 XXV 111 TABLE OF CASES. Thonias i'. Khymney, 263 — f. The (Jueen, 506 — V. AVelcli, 507 Thompson v. Lediait, 518 — V. Shirley, 618 Thonibuni r. Iknies, 133 Thoniton r. Meux, 536 Thorogood i: l^ryan, 463 — V. Kobinson, 601 Thorp i: Houkisworth, 55, 56, 65, 89 Thrift V. Youle, 195 Tickle V. Brown, 607 Tidey v. Mollett, 399 Tildesley v. Harper, 62, 65, 88, 89 Times Insurance Co. v. Hawke, 402 Tippets V. Heane, 419 Todd V. Flight, 490 — I'. Kerrich, 649 Toleman v. Portbury, 517 Toler V. Slater, 400 Tomkinson c. Straight, 537 Topham v. Braddick, 108 Towne r. Heinrich, 629 — V. Lewis, 618 Treadwin v. Great Eastern Rail. Co. 257 Trefall v. Borwick, 619 Tj'eleaven v. Bray, 21 Treloar v. Bigge, 403 Trevelyan r. Charter, 109 Trinity House v. Clark, 214 Tripp V. Armitage, 645 Trueman r. Hui'st, 107 Tucker v. Barrow, 107 Tuller V. Dunn, 421 Tully t?. Howling, 214 Turner v. Ambler, 426 — V. Bennett, 516 — *•. Dodwell, 419 — r. Ford, 616 — r. Hardcastle, 601 — V. Hayden, 167 — V. Hednesford Gas Co., 74, 75 — V. Lamb, 401 — r. Samson, 175 — V. Thomas, 158 — V. Tresby, 358 — V. Walker, 533 Twemlow v. (Jswin, 365 Twiney v. Etherington, 364 Twycross v. Grant, jidd. xxxvi. Tyne v. Rosedale, &c., Iron Co., 538 Udel v. Atherton, 437 Upton V. Townend, 631 Urquhart v. Barnard, 366 Usill V. Hales, 286 Vallance v. Birmingham Land Cor- poration, 20 Valpy V. Manley, 451 — V. Oakley, 538 Van Dieman's Land, Bank of, v. Vic- toria, Bank of, 172 Van Toll r. South-Eastern Rail Co., 258 Varley v. Coppard, 402 Vaughton v. London & North- AVestern Rail. Co. 257 Veitch V. Russell, 433 Vernon v. Smith, 401 Verrall v. Robinson, 618 Vicars v. Willcocks, 284, 539 Vincent v. Cole, 644 — V. Slaymaker, 575 Viner v. Hawkins, 450 Violett V. Simpson, 418 Virtue v. Jewell, 194 Vleirboom v. Chapman, 215 Vose V. Lancashire Rail. Co., 463 Wadiiam r. Marlowe, 400 Wagstafte v. Sharp, 434 Wainwright v. Bland, 385 Waite r. North-Eastern Rail Co., 463 Wakelee v. Davis, 69, 90 Wakeraan v. Robinson, 461 Walker v. Balfour, 22 — V. Brewster, 488 — V. Hattou, 401 — V. Jackson, 261 — V. Macdonald, 169 — V. Maitland, 364 — V. Nussey, 537 Wallace v. Kelsall, 105 — V. Woodgate, 621 Waller v. Lacy, 419 — V. South-Eastern Rail. Co., 463 Wallis V. Delmar, 516 — ('. London & South- Western Rail. Co., 620 Wallon V. Lavater, 506 Walters v. Smith, 531 AVant V. Reece, 501 AVaples v. Eames, 364 TABLE OF CASES. XXIX Ward V. Beck, 363 — V. Ward, 306 — V. Weeks, 284 Warner v. Twining, 74 — V. Willington, 535 Waters v. Earl of Thanet, 420 — V. Monarch Ass. Co., 388 Watling V. Oastler, 464 Watson V. Evans, 181 — r. Hawkins, 29, 40, 90, 294 — V. Rod well, 33, 37, 38 — r. Russell, 450 Watton V. Penfold, 518 Watts V. Kelson, 606 Waugh V. Cope, 419 AVeguelin v. Collier, 619 Weir V. Aberdeen, 366 Welb V. Page, 261 Welch V. Seaborn, 449 Weldon v. Gould, 620 Welfare v. London Brighton & South Coast Rail. Co., 489 Wellock V. Constantine, 126 Wells V. Abrahams, 126 — V. Hopwood, 365 Weuman r. Ash, 283 Werner v. Humphreys, 317 West V. Dobbs, 403 West Counties Manure Co. v. Lawea' Chemical Manure Co., 292 Westlake v. Adams, 120 Wetherell v. Julius, 154 Wharton v. Brooks, 281 — V. Lewis, 208 Wheatley v. Williams, 413 Wheeler v. Stevenson, 631 Wheelton v. Hardesty, 385 AVhincup y. Hughes, 450 Wliitakerv. Edmonds, 191 White V. France, 488 — V. Hunt, 403 — V. Jameson, 489 — V. Lancashire & Yorkshire Rail. Co., 257 Whitehead v. Walker, 172, 418 Whiteliouse v. Fcllowes, 418 Whitmore v. Humphries, 516 — V. Smith, 133 Wigmore v. Jay, 463 Wild V. Williams, 531 Wilkinson v. Evans, 535 Wilkinson r. King, 615 Willaus 0. Taylor, 426 Williams v. Andrews, IS, 19 — V. Brynes, 535 — V. BjTue, 649 — r. Earl, 403 — r. Heales, 318, 403 — ■ V. Jones, 137 — V. Lake, 336 — r. Paul, 356 — V. Smith, 192 — V. Williams, 319 Williamson v. Allison, 637 V. Naylor, 319, 401 — r. Watts, 358 Willins V. Smith, 421 Willis V. De Castro, 531 Willoughby v. Backhouse, 530 Wilson V. Breslauer, 159 — V. Finch Hatton, 399, 630 — V. Hodson, 319 — i\ Lancashire Rail. Co. , 260 — V. Lloyd, 337, 531 — V. Rankin, 368 — r. Wigg, 317 Wiltshire Iron Co. v. Great-Western Rail. Co., 620 Wimshurst v. Deeley, 538 Winstone v. Linn, 120 Winterbotham v. Lord Derl)y, 487 Witchcot V. Linesey, 400 Wood V. Bell, 619 — V. Boosey, 277, 278 — V. Brown, 284 — r. Myttou, 181 Woodcock r. Houldsworth, 193 Woodger v. Great Western Hail. Co., 260, 264 Woodland v. Fear, 146 AVoodley v. Metropolitan Rail. Co., 488 Woods V. Page, 401 Woodward v. Lander, 286 Woolaston v. Hakewell, 317 Worth V. Gilling, 330 Worthington v. Warrington, 559 Wren v. Wild, 292 Wriglit V. Clements, 284 — V. Fairfield, 154 — V. Hitchcock, 506 — V. Leonard, 350, 437 TABLE OF CASES. "Wright r. l.ondon and North-Western Rail. Co. 463 — V. JliiUand Raih Co., 263 — V. Smith, 404 Wyat v. Buhner, 191 Wylde V. Radford, 620 Yale v. Rex, 199 Young V. Kitchen, 239 — V. Raincock, 400 Zenobio v. Axtell, 284 Zunz V. South-Eastern Raih Co., 258 ADDENDA. Pa^jc 53, liiie 7 from the hottoni. IncoJisistent defences — Defence of payment Mo Court pleaded with a denial of the plaintiff's right to recover. The following is a full report of the case oi Bur dan v. Greenwood mentioned in the text. It is reported in L. R. 3 Ex. D. 251 ; 47 L. J. App. 628. The action was brouglit to recover a sum of over £5,000 for commission earned hy the plaintiff. The defendant by his statement of defence, (1) denied that any ■contract was ever made by which the plaintiff was entitled to commission ; (2), if such a contract was made, denied that the plaintiff had performed his part of it so as to entitle him to recover his commission ; (3), alleged that the plaintiff's claim (if any) was barred by the Statute of Limitation ; (4), averred that the contract was induced by fraud ; and (5), finally pleaded this paragraph : " Lest, •contrary to what the defendant believes and contends, he is under any liability to the plaintiff, he brings into court the sum of £130 and says that the said sum i.s €nough to satisfy the plaintiff's claim in respect of the matters herein pleaded to." The plaintiff applied to have the defence struck out as emljarrassing. A judge at chambers, and then the divisional Court, made an order to that effect ; but on appeal this judgment was reversed. The following valuable and interesting judgment of Lord Justice Thesiger is of sufficient importance to be set out at length. His Lordship after stating that the defendant's counsel had expressed his willingness that the allegations of fraud should be taken as strack out of the defence, then proceeded thus :—" That being so, two questions have been argued: the first, ■whether in any case or in all cases under the Judicature Acts and Orders, a pay- ment into Court, at the same time that the cause of action in respect of which it is paid in is denied, should be allowed ; the second, whether, assuming such a payment to be in some but not in all cases proper, the present is one of those cases. The first question is one of very gi-eat importance. The practice of Judges at Chambers, since the case of Sjnirr v. Rail (2 Q. B. D. 615) was decided, has been to disallow in all cases a payment into Court, concurrent with paragraplis denying or traversing the cause of action in respect of which the payment is made, and in the present case, Spurr v. Hall was treated in tlic Court below as an authority properly supporting the practice, although the learned judges ex- pressly invited an appeal upon the jioint. "Payment of money into Court originally existed in the shape of a rule to strike the sum paid in out of the damages, which rule it was necessary to jn-ove at the trial. By tlie general rules of Trinity Term, 1 Vic, a plea of payment into Court was substituted for the old practice. The question then arose, whether inasmucli as the statute of 4 Anne, c. 16, s. 4, enabled a defendant, with leave of tlie Court, xxxii ADDENDA. to j)lcad as many several matters as lie sliould think necessary for his defence, the pka of payment into Conrt ought to be allowed, together with other pleas to the sajne cause of action. A unilbrm jiractice thereupon sprang up, under which pay- ment into Court was only allowed to be pleaded where the cause of action to, or in respect of, which it was made and pleaded was not traversed, and was conse- .[uently admitted. I'hat practice was continued after the passing of the Common Law Procedure Act, 1852, s. 84, under which certain specified pleas (amongst which the plea of payment into Court was not included) might be pleaded together without leave, while all pleas other than those specified had to be made- the subject of leave of a judge, or of the Court, if it was desired to join them with any other plea. The ground upon which this practice, both before and after the Common Law Procedure Act, 1852, was based, was the inconsistency in the record, which, it was held, would arise if a plea of payment into Court were joined with other defences to the same cause of action. See as bearing upon this- point the cases Key v. Thimblcy (6 Ex. 692-694) ; Maclellan v. Howard (4 T. R. 194); Jenkins \. Echcards {5 T. E. 97). "In this state of circumstances, the Judicature Acts and Orders came into' existence and swept away the old forms and practice of pleading, leaiang it ojieni to a defendant, as the general rule, to raise by his statement of defence, without leave, as many distinct and separate and therefore inconsistent, defences as he- might think proper, subject only to the provision contained in Order XXVII. r. 1, Avhich is in these terms [reads it]. As regards, however, payment of money into Court, special provision is made by Order XXX., and the Court has to see first, whether there is anything in the rules comprised in the last mentioned order, which precludes a defendant from paying money into Court in respect of a cause of action, the existence of which he at the same time denies. This point has not been in terms taken in argument before us, and was not made the ground of the decision in the Court below, but it is involved in the argument, and it is desirable to consider it as introductory to the consideration of the point arising upon I'ule 1 of Order XXVII. It is suggested that money is not paid into Court by way of satisfaction or amends, within the meaning of Rule 1 of Order XXX., when it i.* paid into Court in respect of a claim or cause of action, which the defendant does not admit to exist in fact. Such an argument does not, however, appear to us- well founded. The sum paid in is (as has been admitted on the part of the de- fendant's counsel to be the eff'ect in this action) absolutely appropriated to the purpose of satisfaction or amends. The plaintiff may obtain the payment of it out to himself in manner provided by the third rule of the order under considera- tion, and may, either under Rule 4, accept it in satisfaction of the cause of action in respect of which it is paid in, and if he accept it in satisfaction of the entire cause of action, may tax his costs and sign judgment for the costs so taxed ; or, if he think proper, may go on with the action for the purpose of recovering some- thino' more, in which event the issue, quoad the defence of payment into Court, will be the same as it was before the coming into operation of the Judi- cature Acts, although there will be other issues going to the same cause of action, which the tribunal by which the action is tried will have to determine. We are of opinion, therefore, that there is nothing in the rules comprised under Order XXX., which precludes a defendant from taking the course under consider- ation. The question then arises whether the payment into Court necessarily tends " to prejudice, embarrass, or delay the lair trial of the action " within the meaning of Rule 1 of Order XXVII. Now in considering this question we are ADDENDA. XXXlll disposed to give nuii- well, L. J. as to ai> Ijlication of r. 6. or in the alteniative a remedy a,*>;ainst tlie agent if he exceeded his authority, is a case witliin this rule. The majority of the Conrt guarded itself ft'om saying that rule 3 would not have equally met the case, although Cockburn, C. J., expressed an opinion that it would not ; but since the decision in Clitld v. Stenning there can, it is submitted, be little doubt that rule 3 is Avide enough to embrace such a case ; and if that be so, the ques- tion arises in what Avay, if at all, does rule 6 enlarge the powers of joining defendants given by rule 3 ? This question is difficult to answer; but it has been more than once suggested that rule G applies mainly to the case where a plaintiif has at the com- mencement of the suit neglected to avail himself to the full of the poAA'ers given by rule 3, and finds out his error during the progress of the action. This view is supported by the authority of Cockburn, C. J., who in giving judgment in the Honduras Intcr-Occank Company \. Lcfcvrc, said, "This rule (rule 6) I think is applicable to actions which have been already com- menced, as well as those in which the plaintiff is in doubt on commencing the action ; and if, after havuig brought the action, the plaintift' is in doubt whether he has made the right person defendant, he may apply to the Court and obtain permission to add another defendant." BrauiweU, L. J., in the same case makes some remarks on the veiy point under consideration, but there is a' remarkable conflict in the re- ports as to what his lordship really said. The Law Eeports version is as follows : — " There is some colour for saying that rule 6 refers to rule 3 ; but I think it was not intended to apply only to actions already commenced. It appears to be impossible to suppose that the Legislature would say, ' First bring your action, and then if any doubt arises in the course of the action w^hether you have the proper defendant, ask leave of the Court to add another defendant.' It seems to me more probable that the words ' in any action ' are equivalent to ' any intended action.' " The Law Journal report puts it in this way : — •" I do not think that rule 6 takes the case of actions already brought, for I cannot think that a man must first bring his action, and then look about and see who are to be defendants. I think that the words * in any action ' mean ' in any intended action.' The words ' as hereinafter mentioned ' are clearly put in inadvertently." The Weekly Eeporter (vol. xxv. p. 310), has ADDING OR STRIKING OUT A PARTY. 15 it — " There is no doubt some colour for sayiug that it (rule 6) is intended to apply only to cases where an action has been already brought, but I cannot agree that it is so. I am of opinion that the words ' in any action ' are equivalent to ' in any intended action.' As for the Law Times (vol. xxx%'i. p. 4G), by an inadvertence, Lord Justice Bramwell's judgment is i)ut into the mouth of Lord Justice BaggaUay, and the report, then runs : — " I do not think that the sixth rule applies to the case of an action already brought, only because it is impos- sible that the Legislature meant to say to a plaintiff in doubt as to whom his relief should be against, ' ftrst bring your action against one and then you may join the other defendant.' I think the other words ' in any action ' mean in any action in- tended to be as well as already commenced. The expression is a somewhat loose and slip-shod one, but that is what in my opinion was meant." On the whole it may be taken that Lord Justice Bramwell's opinion does not altogether differ from that of Cockburn, C. J., as to rule 6 being at least applical)le to a case where the action has been already commenced, though it is sufficiently evident even amid the chaos of the reports that in his lordship's opinion its application is not confined to this case. Passing on next to rule 13 we find it provided "no action Order XVI. shall be defeated by reason of the misjoinder of parties, and the ^^^^^ , Court may in every action deal with" the matter in controversy power to so far as regards the rights and interests of the parties actually •''*'"iYj°"* before it. The Court or a judge may at any stage of tJie fro- plaintiffs or ceedings, either upon or without the application of either party, defendants. and upon such terms as may appear to the Court or a judge to be just, order that the name or names of any party or parties, whether as plaintiffs or as defendants, imjjroperly joined, be struck out, and the name or names of any party or parties, Avhether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually aiul completely to adjudicate u])on and settle all the questions involved in the action be added." Then follows an exception to this rule which must be carefully noted. " No person shall be added as a plaintiff suing without a next friend or as the next friend of a ])laiiitiff under any dis- abihty without his ov\ti consent thereto." Next comes a clause which, as will be seen farther on, has been thought to limit the 16 PARTIES. generality of the rule : "All parties whose names are so added as defendants shall be ser%-ed A\-ith a summons or notice in manner hereinafter mentioned, or in such manner as may be prescribed by any special order, and the proceedings as against them shall be deemed to have begun only on the service of such summons or notice." Rule 14 which follows seems to be merely explanatory of rule 13. "Any application to add or strike out or substitute a plaintiflf or defendant may be made to the Court or a judge at any time before trial by motion or summons, or at the trial of the action in a summary manner." Rules 15 and 16 are of a practical character and provide for amending the WTit and statement of claim and service of the same when new parties are added. It seems pretty clear that rule 13 is one framed rather in the interest of a plaintiff than of a defendant, and it will only be in a very exceptional case that a defendant can get any benefit from it. In the first place he cannot get a Defendant plaintiff joined who is unwilling to be joined. There is the TTaiiidff proviso in the rule against him, "No person shall be added joined as plaintiff . . . without his own consent thereto." In ™"f ^'' Do Hart v. Stevenson (L. R. 1 Q. B. D. 313) the defendant applied under this rule to get co-owners of a ship joined as plaintiffs along with the then plaintiff, w-ho was himself an owner, and the application was put on the ground that thereby the defendant would obtain additional security for his costs ; but the application was refused. Can he get another person joined as defendant along with himself? This question arose in Norris v. Beazley (L. R. 2 C. P. D. 80). The case was of this kind. Action on a bill of exchange of which the defendant was acceptor. The defendant pleaded that the bill Avas given in part payment for a ship bought by him, and that he contracted to purchase the ship on behalf of a company not then fully con- stituted, but which afterwards became so, called the Niger Merchants' Company, Limited, and that this company had a cause of action against the plaintiff for fi-aud, and that on that ground there was a good counter claim by the company against the plaintiff. The defendant accordingly applied under rule 13 to join the Niger Merchants' Company, Limited, as defendants, in order that the counter claim might be set up. The company were mlling to be joined, but the plaintiff opposed. consent. ADDING OR SXraivIXG OUT A PARTY. l7 In giving judg-nient Lord Coleridge, C. J., said that if the Judgment matter had stood on the earHer part of rule 13 alone, he would colerid'-e have been disposed to grant the defendant's application. C. J. "But," he went on, "the plaintiflF's counsel has directed our attention to the subsequent portions of the rule. It is provided that " no person shall be added as plaintiff . . . without his own consent thereto." Xow this, although it is not a case of making a person a plaintiff against his will, is certainly the case of making a person a plaintilf in respect of a defendant as to whom he does not desire to be plaintiff without his consent ; but the succeeding words are stronger : " All parties whose names are so added shall be served -nith a suimnons, &c., and the pro- ceedings against them shall be deemed to have begun only on the service of such summons." It seems to me to be correctly argued that those words plainly imply that the defendant to be Defendant added must be a defendant against whom the plaintiff has some "^^^ ""* 1 • 1-1 1 IT • 1 • generallj' cause ot complamt which ought to be determmed m the action, be added and that it was never intended to apply where the person to be ^Y*-'^°"ff' added as defendant is a person against whom the plaintiff has consent. no claim, and does not desire to prosecute any. It seems to me that this application is answered, and that it was not intended that persons in the position of this company should be added as defendants merely for the convenience of another defendant Ijetween whom and the company there may be questions which will have afterwards to be settled. It seems to me that it is the more important to construe this rule strictly, because it is obvious that in many cases if the defendant's contention is right, its provisions might be made use of in a manner exceedingly harassing to plaintiffs, by forcing them to include in their actions persons against whom they do not seek to pro- ceed, and to mix up their rights as against one person, with questions of a highly complicated nature arising between them- selves and others." After the other judges had concluded their judgments, Lord Coleridge added, " I wish to guard against But may being supposed, by anything I have said, to have meant that a ^e j'tbual defendant could never be added at the instance of the circum- dcfcndant. Such was not my meaning." stances. Denman, J., said that he was quite clear that the Court ought not to bring in any person as a defendant against whom the plaintiff did not desire to proceed, unless a very 18 PARTIES. When a plaintiff can get new par- ties joined under rule 13. Edward Lowther. strong case was made out showing that in this particular case justice could not be done without his being brought in. It will be seen from this case that under rule 13 one defendant may get another jserson joined as a co-defendant, but only in an exceptional case ; and there is no decision, so far as is known, as to what constitutes such an exceptional case. Next comes the question how far can a plaintiif avail himself of this rule for the purpose of joining either new plaintiff's or new defendants ? In the first place it is obvious a plaintiff" cannot get another joined as a co-plaintiff" when that other is unwilling to be so joined. The proviso to the rule is express upon the point ; and besides there is the judgment of Mr. Justice Lindley in the case of Cormaclc v. Grofrian and another (W. N. 1876, 22). This was an action by a ship-OAraer against two consignees of goods for demurrage. A counter-claim had been delivered for damage to cargo. The plaintiff then took out a summons to add other parties as plaintiffs, on the ground that being co-owners of the ship with him they were jointly liable on the counter-claim ; but his lordship, affirming the decision of the Master, refused to join the proposed parties as plaintiffs against their wish. Where, however, the proviso does not apply, there seems to be large power of joining new plaintiff's at the instance of a plaintiff". (See Smith v. Haseltine, siqyra.) But there is a limit to this power. It is questionable whether at the trial an amendment of the kind would be allowed {Williams V. Andrews, W. N. 1875, 237) ; and when the trial is over, and the decision is against the plaintiffs, they camiot, by amendment under this rule or any rule, be allowed to introduce new plaintiff's and make an entirely new case. {Neiv Westminster Brewery v. Hannah, W. N. 1870, 215, and in the Court of Appeal, W. N. 1877, 35.) The principal case upon the right of a plaintiff to get another defendant joined under this rule is Edwardy. LowtJier (45 L. J. Q. B. &c. Div. 417), and here the Court laid do^\ai something like a o-eneral principle. The case was an action for libel, originally brouo'ht against the publisher of a newspaper. It transpired during the progress of the case, in answer to interrogatories, that one A. B. was sole proprietor of the paper. The plaintiff then applied to have A. B. joined as a defendant along with the origmal defendant, k. B. opposed. In giving judgment. ADDING OR STRIKING OUT A PARTY. 19 Lord Coleridge, C. J., said : "I am of opinion that tliis applica- Judgments, tion should be granted. I do not mean to say that the point Lord would be free from argument if it rested on the terms of q^ j|"°^' rule 13 of Order XVI., but I place my judgment on this, that rules 3 and 13 of the same order are to be read together. Now rule 3 states that 'all persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative.' It is plain therefore fr'om that rule that the person whom it is now sought to make a defendant might have been made a defendant in the first in- stance. Then rule 13 says ' that the name or names of any party or parties, whether plaintiffs or defendants, who ought to have been joined ' may be added. I think that this means that a person may be added as a defendant who ought to have been such defendant for the purpose of general convenience and of doing justice in the subject-matter of the suit. Now as Mr. , whom it is proposed to add as a defendant, is clearly a person against whom, if the plaintiff's case is right, relief may be sought, and who might have been made a defendant in the first instance, so I think he is one who may now be properly ordered to be joined as a defendant on such terms as the Court may think just." Archibald, J., said : " I think that the meaning {i.e., of the Archibald, rules) is that all parties against whom remedy or relief is ' ' sought, should if possible be joined in the same action. Now it is clear from rule 3 that the party here sought to be made defendant might have been joined as a defendant in the first instance, and I think that ' ought ' in the 13th rule should be read according to the spirit of the rules, and should therefore be construed as meaning 'ought for the purpose of doing justice,' or ' ought,' because the plaintiff, if he had known that Green was the proprietor of the paper, ought to have joined him as defendant in the first instance." The principle to be deduced from this case is that whoever might originally have been made a party under the earlier rules of this order, may be added under this rule ; but according to Mr. Justice Quain it would be too late to aj)ply to have a new party joined when the case is actually on for trial ( Williams have party V. Andrews, supra). ]omed ' . when case So far attention has merely been called to the cases, where on for trial c 2 Plaintiff cannot 20 PARTIES. As to ap- plications by third parties to be maJe plaintiffs or defend- ants. Striking out par- ties. Order XVI. rr. 17-21. When de- fendant claims in- demnity against third par- ties. either the pUiintiif or the defendant wants a party added. There is in the rule no express provision for third parties inter- vening and tlieniselves applying to be made parties to the action for some purpose or other, unless indeed the case is emljraced hj the right ^^'hich is reserved to the judge or the Court of amending the parties irrespective of the application of either side. " The Court or a judge may at any stage of the proceedings, either upon or witJwut the application of either party," &c. There is one case in the books on the subject. Mills Y. Griffiths (45 L. J. Q. B. C. P. & Ex. 771) was an action of ejectment brought by a landlord against his tenant. At the hearing on appeal from Chambers, counsel representing a mort- gagee of the defendant's interest claimed to be heard, and main- tained that under Order XVI. r. 13 he might be made a party. Lush, J. : " The mortgagee is not a defendant. What locus standi does he have ?" Cockburn, C. J. : " Why is the landlord to be in a worse position because his lessee has mortgaged ? " Counsel urged that the Court might order that the landlord should hold subject to the mortgage ; but the Court held that in the present action they could give no relief to the mortgagee, and that he could not be made a party. As to the power given of striking out parties improperly joined, the defendant and the plaintiff have the very same right of applying to the Com't ; and it has been decided that a defendant improperly joined may be struck out on his own application though he has delivered a statement of defence. (Vallance V. Birminghcmi Land Cor^wration, L. R. 2 Ch. D. 3G9.) While on the subject of parties under the new procedm-e, a word or two must be said with reference to rules 17, 18, 19, 20, and 21 of Order XVI. These rules provide means not for bringing new parties into an action then going on, but for binding third parties by the result of that action. Rule 17 is : " Where a defendant is or claims to be entitled to contri- bution or indemnity, or any other remedy or relief over against any other person, or where from any other cause it appears to the Court or a judge that a question in the action should be determined not only as between the plaintiff and defendant, but as between the plaintiff, defendant, and any other person, or between any or either of them, the Court or a judge may, on notice being given to such last-mentioned person, make such ADDING OR STRIKING OUT A PARTY. 21 order as may be proper for having the question so determined." Lord Justice Mellish in the case of Trelccwen v. Bray (45 L. J. Trckavm Cli. 114) explained the meaning of this rule and the four fol- ^* ^^'^'J- lowing rules which give effect to it thus. He said: " We {i.e., the of^Mg^fsh judges) came to the conclusion that it was not advisable to L. J. make any rules which would enable one defendant to obtain rehef against his co-defendant \nthout an independent action against him. We considered that we had power to do so, but we thought that it would be intolerable that a plaintiff who might have a good case against the original defendant should be compelled to wait for his remedy while the defendants were fighting inter se. The only object of the rule was to bind the thu'd party conclusively by the judgment given as between the plaintiff and the original defendant. But if he wants to get an indemnity or other relief against the third party, he must bring an action of his own." But although persons served ^\^th notices mider these rules are not by that fact, or indeed by any act of the plaintiff or defendant, made parties to the action, yet upon proper application to the Court they may at their own instance be made parties to the action. Rule 20 says : " If a person not a party to the action who is served as mentioned in rule 18, desires to dispute the plaintiff's claim in the action as against the defendant on whose behalf the notice has been given, he must enter an appearance in the action within eight days from service of the notice." And rule 21. goes on : "If a person not a party to the action, served under these rules, appears pursuant to the notice, the j^arty giving the notice may a])ply to the Court or a judge for directions as to the mode of having the question in the action determined ; and the Court or judge, upon the hearing of such application, may, if it shall ajipear desirable so to do, give the person so served liberty to defend the action upon such terms as shall seem just, and may direct such pleadings to be deli^-ered or such amendments in any pleadings to be made, and generally may direct such proceedings to be taken, and give such directions as to the Court or a judge shall appear proper lor having the (]ucstion most conveniently determined, and as to the mode and extent in or to which the person so served shall Ijc bound or made liable by the decision of the question." It has been decided in 22 PARTIES. Fniher v. one case {Fndxr v. Knorp, 3G L. T. IST. S. 209) that a third party brought into the action under tliis rule and having obtained leave to defend, may himself bring in a fourth party claiming' indemnity from him on the same ground on which it is claimed Wuiko- V. from the third party ; but in a later case of Walker v. Balfour cjov). ^^^ -^ ^ 511), the Court expressed gi-eat doubts as to whether this could be done. As the effect of rule 17, and the fol- lowing rules is, as stated, not to make the third parties intro- duced into the action necessarily parties thereto, it is not proposed ftirther to examine the decisions on those rules in this place. Those desiring information on the subject are referred to Swansea Shipping Co. Limited^. Duncan, L. R. 1 Q. B. D. 644 ; Bejiecke v. Frost, L. R. 1 Q. B. D. 419 ; Honvellx. London General Omnibus Co., L. R. 2 Ex. D. 365 ; and Bower v. Hartley, L. R. 1 Q. B. D. 652. CHAPTER IL ON THE GENERAL PEINCIPLES AND EULES OF PLEADING UNDER THE NEW PROCEDURE. Formerly the number of pleadings in any action was almost unlimited — declaration, plea, rej^lication, rejoinder, surre- joinder, rebutter, surrebutter, &c. ; but now there are seldom more than three pleadings in one action, and there cannot be more than four without the leave of the Com-t. " No pleading subsequent to reply other than a joinder of issue shall be pleaded without leave of the Court or a judge, and then upon such terms as the Court or a judge shall think fit." Order XXIV. r. 2. The names given to the various pleadings are also altered, statement of claim is substituted for declaration, statement of defence with or without counter-claim for plea, reply for replication, and finally joinder of issue ; and in Order XIX. we have a new code of rules regulating the form of the modified system of pleading. It is not however an exhaustive code upon the subject, and where not inconsistent with any old rule of pleading, that rule will remain. " The same rules Old rules of pleading which prevailed under the old law prevail now, °^ pleading ,. . ^ rem;un in unless there is anythnig m the Judicature Act or in the new force when Orders or Eules which prevents it" (Jessell, M. E., in Ei'ans not, mcon- V. Buclc, L. R. 4 Ch. D, 434) ; and it follows fi'om this that with the the pleader will still not unfrequently have to refer, upon some "®,^ ^^' point of pleading in a case not provided for by the rules, to a standard work on the principles of pleading like the late Serjeant Stephen's book. In this place it is projDosed more especially to deal with the new rules and the decisions upon them, though the old law, where it still prevails, will be referred to when necessary. Probably the most convenient way to present the subject to the reader will be to arrange the rules and deci- sions and comment upon them under the heads of the particular pleading to which they belong. 24 GENERAL PllINCIPLES AND RULES OF PLEADING. A concise statement of the ma- terial facts required. Common indebitatus count abolished. Notice in lieu of statement of claim. Statement of Claim. " Every pleading shall contain, as concisely as may be, a state- ment of the material tacts on which the party pleading relies." (Order XIX. r. 4.) This rule applies, it is true, to the statement of defence, counter-claim, reply, or other pleading, as well as to the statement of claim, but it applies in a special degree to the latter. It requires in terms a specific statement of the material facts on Avhich the party relies as founding his right of action ; and, as the rule goes on, " such statement being divided into par igraphs, numbered consecutively, and each paragxaph con- taining, as nearly as may be, a separate allegation." This rule sweeps away the old common indebitatus count which figm-ed in so many declarations. That pleading was couched in the vaguest and most general tei-ms, and could give the defendant very little information as to the nature of the claim against liim. Thus a common indebitatus count for goods sold and deliA-ered would run : " Money payable by the defendant to the plaintiff for goods sold and delivered by the plaintiff to the defendant" (Bullen and Leake, 3rd ed. 38). There was here uo specific statement of the material facts relied upon, not to mention the part of the rule that relates to separate aUegations in numbered paragraphs ; and it is needless to repeat that such a pleading is now^ quite inadmissible. There is, however, one kind of statement of claim allowed by the new practice which does not altogether comply with the rule under consideration, and this seems the most convenient place for mentioning it, the more so as it is frequently used in the class of cases which were formerly dealt with by a common indebitatus count. Order XXI. r. 4 provides: " Where the writ is speciaUy endorsed, and the defendant has not dispensed with a statement of claim, it shall be sufficient for the plaintiff to deliver as his statement of claim a notice to the effect that his claim is that which appears by the indorsement upon the writ, unless the Court or a judge shall order him to deliver a fmther state- ment. Such notice may either be m-itten or printed, or partly WTitten and partly printed, and may be in the Form No. 3 in Appendix (B) hereto, and shall be marked on the face in the same manner as is required in the case of an ordinary state- ment of claim. And when the plaintiff is ordered to deliver STATEMENT OF CLAIM. 25 such fui'tlier statement, it shall be delivei-ecl within such time as by such order shall be directed, and if no time be so limited, then within the time prescribed by rule 1 of this order." Now by Order III. r. 7 the plaintiff may specially indorse Applies his writ wherever his claim is for a delit or Ikiuidated "^'^ *°- ^ cases of demand only; and the indorsement, besides stating the nature debt or of the claim, shall state the amount claimed for debt, or in I'^'^ii'^^^ted ' ' . deniaiiu, respect of such demand, and for costs respectively. It is sufficiently evident, by a consideration of this latter rule, and then by a reference to the forms of special indorsements given in Appendix A, Part II., sect. 3, that the particulars of de- mand given to the defendant by the plaintiff when he specially indorses his writ, are more minute than the particulars which were formerly given in a common indebitatus count, and are generally, in a given case of the kind, quite sufficient to inform the defendant of the natm'e of the plaintiff's claim. This being so, rule 4 of Order XXI. comes in and says — for that is what it amounts to — that the plaintiff may substitute the indorse- ment on his writ for a statement of claim, by giving the defendant notice in a specified fui-ni, subject to a power reserved in the Com-t of requiring the plaintiff to deliver a fiu'ther or better statement of claim. It must be carefully noted by the pleader, ijhis notice however, that the notice mentioned in Order XXI. r. 4 with a pleading the indorsement on the \vrit incorporated in it, is a pleading '^g^^ ^f^" within the meaning of Order XXVIII. r. 1, and therefore demurrer, may be the subject of a demun-er if it does not disclose a good ground of action. This was decided by Mr. Justice Lindley on demuiTcr in the case of Rohcrfson v. Howard {2Q "\V. R. 083). There the plaintiff claimed lUOZ. upon an alleged agxeement. The particidars of his claim had been indorsed on his WTit, and then, under Order XXI. r. 4, a notice liad been delivered to the defendant that the plaintiff's claim was that which appeared by the indorsement on his A\Tit. The defendant demun'ed on the ground that no consideration was shown on the face of the pleading for the alleged agTcement. On the liearing the plaintiff contended that an indorsed writ with notice was not a pleading within Order XXVIII. r. 1, such as Robertson could be made the subject of a denuuTer. The learned judge, ^^{oward. '' .) o J Decision of liowever, held that the demurrer was sustainable, and that Lindley, J. the language of the rule made the notice a claim ibr all i)ur- 2G GENERAL PRINCIPLES AND RULES OF PLEADING. Judgment of Liuilk'y, J. Prolixity of statement forbidden. Rules to secure concise- ness. 1. Evidence must not 1)6 jileaded. poses, and one snch as could be demurred to. It being admitted that the specially indorsed writ showed no considera- tion for the agxeement, he allowed the demurrer, with leave to amend. Putting out of account for the present the class of cases just referred to — where a specially indorsed -uTit may be delivered and then a notice under Order XXI. r, 4 — the general rule already stated remains for consideration, viz., that every plead- ing shall contain a concise statement in numbered jiaragi-aphs of the material facts relied on. The extent to which this rule has modified pleading may be illustrated by cases of constant recuiTence, where a plaintiff claims damages in respect of personal injuries caused by the negligence of another. For- merly, it was enough to allege as a fact that the defendant conducted himself carelessly and negligently ; now the plaintiff should aver specifically the particular act or acts of negligence and carelessness upon which he relies. But while the plaintiff must allege the facts which constitute his case, the aim of the rule is that he shall only allege the essential and material facts, and do this as briefly and concisely as possible. Ride 4 of Order XIX. says: " Every j^leading shall contain, as concisely as. may be, ikc," and rule 2 of the same order, referring to state- ments of claim, defence, &c., says : " Such statements shall be as hrief as the nature of the case will admit ; and the Court in adjusting the costs of the action shall inquire, at the instance of any party, into any unnecessary prolixity, and order the costs occasioned by such prolixity to be borne by the party chargeable with the same." Not only, however, are there in Order XIX. these general directions against prolixity of state- ment, there are likewise a number of rules laid down by which parties are expressly authorized to make certain averments in a more contracted form than perhaps otherwise they would ha^-c felt themselves at liberty to do ; and to these rules attention must now be directed. The first rule of the kind is this : — The evidence of material facts averred must not be set out in the pleading. This rule is contained in a proviso to rule 4, ah-eady several times referred to, " Every pleading shall contain, as concisely as may be, a statement of the material facts on which the party pleading relies, hd not the evklence hij which they are to he proved" &c. STATEMENT OF CLAIM. 27 It is sometimes a matter of the greatest difficulty to say whether or no a particular fact is a material fact, and therefore pleadable, or merely evidence of a material feet, and on that ground inadmissible ; but the majority of cases admit of no difficulty. A plaintitf is avennng that he was injm-ed by the negligence of another. It would be pleading evidence to aver that A. B. was standing by and saw the occun'ence. A plaintiff is alleging that he gave notice to another. It is merely evidence to state that he sent the notice in a letter which he gave to A. B. to post, and which A. B. did post ; and so on in an infinite number of cases. The case of Blalce v. The Albion Life Assurance Company Blake y. (24 W. R. 677) — a case which has since, in consequence of f^f^^"^,, other proceedings, obtained a wide-spread notoriety — is im- Company. portant on this subject. Here an action was brought to re- cover a sum paid by way of premimn to the defendants on a life policy. The statement of claim alleged that the plaintiff had entered into the policy on the understanding, and for the purpose of obtaining a loan fi-om one Howard, which failed owing to the demand of Howard for further secm*ities, which could not be complied with, and that the defendants shared the premium with Howard, who was their agent, and that there was no real intention to lend or to execute a bona fide policy. The statement of claim (and this was the part complained of) then went on to aver that in various other instances speci- fied, the defendants and Howard had pursued the same course, and that the defendants were not really an insm'ance company. Application was made in Chambers to strike out the latter paragraphs on the gi'ound that they were scandalous, irrele- vant, calculated to prejudice the action, and also on the ground fliat they ivere merely evidence ,- and the case was referred by the Judge at chambers to the Court. In delivering judgment. Lord Coleridge, C. J., said : " The action is in substance for jmigiucnt conspiracy with one Howard to defraud the plaintiflF. It is o^ Cole- in effect a charge of fraud. Is it relevant that the plaintiff" » • • • should in effect state that what was done here was the usual course of the defendants' business, and that they were not really an insm-ance company? I am of opinion that it is not relevant to the cause of action. If the cause of action is proved, these further statements are not wanted ; if tiicse are 28 GENERAL PRINCIPLES AND RULES OF PLEADING. l^roved, unless the rest of the statement is proved, there is no cause of action, and these statements must therefore be irrele- vant. The truth is, the statements are not of facts which are material to be proved, for the reasons which I have stated. I am also of opinion that they contain statements which are not even evidence in chief. It is in effect saying that there is fraud here because there has been fr-aud in other cases." Mr. Justice Brett based his judgment, ^\■hich was to the same effect, on gTounds more important to the subject we are now Judgment considering. His Lordship said : " I am of opinion that the of Brett, J. paragraphs objected to must be struck out, as not being ad- missible in pleading. I take it that the legal formula under which they come is this, that they are irrelevant, and also that they are mere evidence. In every case some facts must be proved ; others are merely evidence of facts which must be proved ; others, again, are within both descriptions. Those which are to be proved, or which are both to be proved and are also evidence of other facts, may be pleaded, but if they are only evidence of facts to be proved, they are mere evidence, and cannot be pleaded. The facts in discussion in the jiresent case are mere evidence, and therefore not pleadable." Jones V. Jones V. Tunier (W. N. 1875, 239) is another case, which Turner. illustrates when a pleading is objectionable on the ground of the proHxity occasioned by introducing irrevelant matter and pleading evidence. The plaintiff sought in this action to recover from the defendant commission on the sale of the defendant's interest in a quarry. After various paragraphs, to Avhich no exception was taken, the claim went on : " 6. The ])laintiff thereupon exerted hunself, by advertising and other- Avise, to secure a purchaser of either the whole or the one-half share of the defendant's interest in the said quarry, and, amongst others, introduced to the defendant, a Mr. Frederick AVallace, who, in conjunction with a Mr. Newman (so the }ilaintiff has been informed by the defendant) pm-chased fi*om the defendant one half-share of the defendant's interest in the said quarry. 7. But though the defendant has stated to the plaintiff the fact of the sale as alleged in the 6th paragraph, yet the defendant refuses to tell the plaintiff the exact sum for which or the precise terms upon which such sale has been effected, and has thereby prevented and still prevents the STATEMENT OF CLAIM. 29 plaintiff claiming a definite sum as due to liim by the terms of the agreement set out in the 3rd and 5th paragraphs. 8. Whether the defendant has or has not sold his whole or part interest in the said quarry to the said Mr. Frederick "Wallace separately, or in conjunction with the said Mr. Newman, the l^lamtiff cannot, except as explained in the Cth paragTaph, state. The plaintiff has, however, every reason for believing that the defendant has in fact made such a disposition of his property to some one or more of the persons introduced by the plaintiff to the defendant as to entitle the plaintiff to the reward pro- mised and agreed for either in the letter aforesaid of the 2nd of July, 1875, or in that of the 3rd of July, 1875, or both." Application was made under Order XXVII. r. 1 to have the above paragraphs struck out ; and Mr. Justice Quain affirmed Judgment the decision of the Master who made the order. In givino- "/ Qua-^, ^ ^ J. judgment his Lordship remarked : " Paragraph G states what the defendant told the plaintiff. That is not pro2:)er pleading. It would have been easy for the plaintiff' to state that Ne^nnan and "Wallace bought the half-share, and then to have claimed his conunission. He could then have administered interro- gatories." In AcUris v. TkrigJey ("W. N. 18 70, 5G), an action forma- inactions licious prosecution, the plaintiff in his statement of claim set ^p^. '^^- out the facts in detail ui order to show on the fece of the claim prosecution that there was no reasonable and iirobable cause for the prosecu- sufficient to allege tion. The Master struck out the paragraphs which did this on '^..^nt of the ground that they were merely evidence, and on appeal Mr. reasonable Justice Archil)ald confirmed the order, remarking : " It would generally. ha^-e been sufficient to have stated simply that there was no reasonable or probable cause. "Wliat is the use of stating such facts as that the plaintiff' denied the charge of stealing which the defendant made against him ? That is what everyone does when charged with theft. I think the Master has reduced the statement within proper limits." Another case in which a pleading was amended because evi- dence was pleaded is Ashew v. The North Eastern Railway Askew v. Company (W. N. 1875, 238). In this case the o-^mer of the '^1".^^'^^' jC!/Cliit€'i ill Redheugh estate brought an action for damages for an inter- Jiailwai/ ference ^\•ith his right to carry coal over a quay, for a declaration Company. of his and the defendants' respective rights, and for an injunc- so GENERAL PRINCIPLES AND RULES OF PLEADING. Admissions may not be pleaded, being only evidence. 2. The effect of docu- ments merely to be pleaded. Except where the j)recise words are material. tion against the defendants. One paragraph of the plaintiff's claim stated that : " The defendants do not dispute but have in their correspondence with the plaintiff's solicitors admitted that the plaintiff" and his tenants are entitled to have access fi'om the Redheugh estate to the quay for the carriage, storage, and shipment of manure, dung, and goods of a like description, and have expressed their willingness to make the necessary arrangements and to give all facilities for that pur- pose." Application was made to have this paragraph struck out, and Quain, J., in giving his decision, said : " This para- graph must be struck out. Can you point out even in the forms any precedent for such a paragraph as this ? Can you point out any section in the Act that enables you to. plead admis- sions made by the other side to your solicitors ? You put the defendants in the difficulty of not knowing whether to traverse the admission. Conciseness is intended by these rules to be the very soul of pleading." The next rule having for its object brevity and conciseness of statement is that the effect only and not the whole of docu- ments should be set out in a pleading unless the precise words are material. " Wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the w^hole or any part thereof, unless the precise words of the document or any part thereof are material." (Order XIX. r. 24.) It should be noted that the terms of this rule are not imperative. It is not declared that documents must only be smnmarized, but that they should be ; and the effect of setting them out at im- proper length is that the pleading may be objected to as prolix, and consequences to be afterwards indicated follow. There is, as has been seen, the saving clause, that where the precise words of the document, or any part thereof, are material then the docu- ment or the part so material must be set out at length. This would apply to a case like that of a libel contained in some letter or other \\Titten document. There the precise words would have to be set out, as was always the case, and no sum- maiy of the effect of the document or letter would do. There is a considerable class of cases where the precise words of several parts of a document are material, but there are other parts of the same document where the precise words are not material. STATEMENT OF CLAIM. 31 as in the case of actions, on bonds, charter-parties, or policies of insurance ; then it becomes a question whether all the dociunent should be set out, or an attempt made to give an abstract of it and to separate the essential ft'om the unessential parts. Cer- tainly the safer way, apart from the question of whether the pleading -will thereby be exposed to an amendment for prolixity, is to take the former course ; and on the whole it is submitted that where the precise words of several portions of a docmnent are material and the other parts of it are not altogether irrelevant to the subject-matter of the action, the pleader does not offend against this rule if he sets out the whole document. The next rule is : " AVlierever it is material to allege malice, 3. Malice, fraudulent intention, knowledge, or other condition of the mind tQ^bg^'j^i*^*^' of any person, it shall be sufficient to allege the same as a fact leged as a without setting out the cii'cumstances from which the same is ^*^*' to be inferred." (Order XIX. r. 25.) To set out the circmn- stances fi'om which the inference of malice, knowledge, &c., is to be drawn, would be in violation of rule 2?> and would be to state evidence. In the case of Hodges v. Hodyes, 24 W. R. 293, the plaintiff alleged a nmnber of facts from which fraud in the defendant might be inferred, but there was in addition no express averment that he had been guilty of fraud, and without going into the question which was not before hun, whether the pleading was prolix under this rule, the Master of the Rolls allowed a demurrer to it. He said that although it was quite clear enough was alleged to enable anyone to understand what the plaintiff intended to charge the defendant with, yet techni- cally the allegations were not complete. If in this case the plaintiff had generally charged the defendant with fraud under rule 25, instead of giving a prolix statement of facts from which a juiy might infer what he did not expressly charge, his state- ment of clami would no doubt have been good. Another rule is: "Wherever it is material to allege notice to 4. Notice any person of any fact, matter, or thing, it shall be sufficient to *°J^^ ^}' allege such notice as a fact, unless the form or the precise terms fact. of such notice be material." (Order XIX. r. 26.) Again, with the same view of securing conciseness of state- ment, comes rule 27: "Wherever any contract or any relation between any persons does not arise from an express agreement, but is to be implied from a series of letters or conversations, or 32 GENERAL PRINCIPLES AND RULES OF PLEADING. 5. Contract or relation arising from let- ters, con- versations, or other circum- stances may be alleged as a fact, and the letters, &c. may lie referred to sjenerallv. 6. Presump- tions of law need not Le averred. Cases il- lustrative of prolixity within the above rules. Marsh V. The Mayor and Alder- men of Ponte- fract. otherwise fruui a number of civcuinstances, it shall be sufficient to allege such contract or relation as a ftict, and to refer gene- rally to such letters, conversations, or circumstances, without setting them out in detail. And if in such case the jjcrson so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstances, he may state the same in the alternative." The first part of this rale — viz. the part contained within the first sentence — speaks for itself; and it is manifest that where it is intelligently applied, a pleading which would otherwise be verbose and prolix will be cut down to convenient limits. It would seem that in cases within the second part of this rule where the party wishes to rely in the alternative upon more contracts, &c,, than one as to he implied from the circmnstances of the case, the facts and circumstances must usually be set out in a little more detail. It would scarcely be artistic to allege as a fact one contract and then immediately afterw^ards a totally inconsistent contract as having been made at the same time. The better course would be to state the essential facts, and then say that the plaintiff or defendant, as the case might be, would contend that so-and-so -was the contract Avhich resulted fi'om them, or in the alterna- tive that — state the other possible contract — was the contract produced. Another rule is : " Neither party need in any pleading allege any matter of fact which the law presumes in his favour, or as to which the burden of proof lies upon the other side, unless the same has first been specifically denied." (Order XIX. r. 28.) And then the rule goes on to give as an example of the application of the rule, the case of consideration for a biU of exchange, where the plaintiff sues only on the bill and not for the consideration as a substantive ground of action. 3Tarsh v. The Mai/or and Aldermen of Pontefract (W. N. 1876, p. 7), affords a good illustration of the kind of prolixity against which these rules are aimed. This w^as an action to re- cover the amount charged for work done in building a reservoir for the defendant corporation. It seems that in May, 1874, a contract was entered mto betw'een the plaintiff and the defend- ants for the doing of this work, but this contract fell through and another contract was made in Januaiy, 1875, which was the contract sued upon. The plaintiff's statement of claim set ston, B. STATEMENT OF CLAIM. 33 out both the contracts at length; but no brcacli of the first contract was alleged. There were also a number of allegations in the claim that the defendants had refused to fence, that they had interfered with the work, that the plaintiff was apprehen- sive of an arch falling, and that his Avork was exposed to the weather; but none of these things were assigned by the plaintiff as l)reaches by the defendants of either of the contracts. Hud- judgment dleston, B., in giving judgment, said : " The statement of account of Huddle - between the parties shows that the above claim arises out of the second contract. It would have been sufficient to have stated that there was a contract made in May, 1874, between the l)laintiff and the defendant for certain Avorks; that on that con- tract certain disputes arose ; and that another contract was then entered into in January, 1875, by which it was agi-eed that the ])lain tiff should complete the works in a good and business-like manner. I would undertake to put this statement of claim which now occupies five sheets, which is equal to fifty folios, into half a sheet, which would l3e equal to about four folios. The first principle of pleading under the Judicature Acts is to avoid prolixity." Wafson V. Rodwell (45 L. J. Ch. 744) was an action insti- Watson v. tuted by a lady against her solicitor to obtain an account of moneys received by him on her behalf and particulars of cer- tain securities executed by her in his fevour, and for damages for his alleged misconduct in managing her affairs. The state- ment of claim gave a lengthy account of the transactions in which the defendant had been engaged for the plaintiff', alleg- ing various acts of misconduct, and stating in detail a large luimber of payments made by the defendant on behalf of the plaintiff", and alleging that they were improperly made. Para- graph 51 was as follows : " It has l)een the hal)it and practice of the defendant to impose upon the plaintiff''s inexperience and credulity by an affectation or pretence of indignation when any inquiries were made or questions asked of him touching the affairs of the testator, and whenever such inquiries were made the defendant lias di\erted the same l)y simulation of being offended at doubts of his honour, and by profuse assurances that if everything were left in his hands it would be perlectly right." Malins, A'.-C, before whom the case first came on an application to have tlie statement of claim amended under ''A GENERAL PRINX.IPLES ANJJ RULES OF PLEADING. Order XXVII. r. 1 as cmbarrassiiiji', allowed all the claim to stand except the paragraph above set forth, which was struck out. On appeal, the Court of Appeal, though they thought other parts of the claim unnecessarily prolix, refused to interfere with the Vice- Chancellor's discretion. Mellish, L. J., remarked: " In an action of this sort against a solicitor for negligence, the facts must be to a certain extent stated, but there should be no rhetoric." jDary Brothers v. Garrett (38 L. T. N. S. 77) is an in- structive case on this head. It is impossible within reason- able limits to give any summary of the statement of claim, which occupied forty-three printed pages. The reader is Davy V. referred to the Law Times' report, where an epitome of it extending over five or six columns is given. Vice-Chancellor Hall, who first heard an aj^plication to ha^'e the claim struck out under Order XXVII. r. 1 as emljarrassing, although he thought it prolix, refused the application : but on appeal the Court of Appeal ordered it all to be struck out, with leave to the plaintiff" to deliver an amended statement of claim. In giving judgment, James, L. J., said he was startled to see a document of this kind put forward under the new system of procedure .... Nothing could be more embarrassing than a quantity of statements with which the defendant did not .Tudgment know what to do. A number of facts, many of which appeared L J ™^''' to have no connection with the defendants, were stated at great length, and it was impossible for the defendant, without know- ing the inferences intended to be di'awn fi'om such facts, to know Avhat he was to do with them. Was he to deny or admit them ? If he admitted them, how was he to know that he might not be prejudiced in some way by such admission at the hearing of the action? This was an embarrassment to which no one had a right to expose his adversary in this Court. Under the new practice established by the Judicature Acts, it was essential that the statement of claim should be as brief as the nature of the case would permit, and that all irrelevant matter should be excluded. In this case many of the statements introduced were quite useless, and those which were useful were not only unnecessarily long, but were mixed and confused to such an extent that it was almost impossible for the defendants or any one else to say what was the ])recise nature of the case they had to meet. First tliere was a statement showing how STATEMENT OF CLAIM. 35 !Messrs. Froom & Co. became l^anki-ui^ts in Russia, followed by .•a balance-sheet. It was stated that this l)alauce-sheet was set (jut in order that it mio-lit be contrasted with some statements ■in a letter subsequently set out, and that some conclusion could be drawn from such contrast. How any wrono- was intended to be made out to have been done by the defendants or any of them did not appear, nor did the balance-sheet appear to have ■any connection with the relief claimed. Then the !)th para- graph contained an allegation that'M. Lischine was Froom's 'legal adviser on the matters therein mentioned. That was a James, perfectly innocent transaction; but on being asked why it was tinued.''"' inserted, the plaintiff's counsel said that in another paragraph the same gentleman was stated to be em])loyed by the defend- ants as their legal adviser, and that a case of fraud and collu- sion was to l)e inferred from the two together. But how were the defendants to know what fraud and c(jllusion were intended ? Then there was a statement of the result of a meeting of cre- •ditors at St. Petersburg, and the powers and duties of the Russian administrators. Why was that inserted? Xot for anything contained in the account of such proceedings, but for something not contained in them; that is, l)ecause they did not authorise the administrator to sell. The defendants might well ask what they had to do Avith that. Proceeding fruther, his Tjordship continued, under the new system it was positively forbidden to plead matters of evidence. The object of the new ])rovisions was to get rid of the old charges and counter- charges. It was entirely premature to deal with matters of evidence until it was ascertained what were the definite issues raised in the acticm. The statement of claim ought to state the facts constituting the AVTong of which com])laint was made, .and the damage resulting from such wrong: but no evidence ought to be introduced into tlie ])leadings. What had the de- fendants to do with all these letters which ])assed between some of the defendants and some other persons who were neither the ])laintiff nor in the same catcgoiy with the defendants, and of which the claim was full ? I>aggallay, L. J., said ])rolixity of pleading might be of two Bagidlay, kinds : first, the prolixity might consist in necessary facts being " stated at undue length ; and, secondly, it might consist in the statement ol' unnecessary facts. The first kind of jirolixity was V 2 36 GENERAL PRINCIPLES AND RULES OF PLEADING. not so objectionable, as it was not calculated to embarrass the defendant, and it might be remedied by the Court under Order XIX. r. '1, ^Yhich empowers the Court to order the costs occasioned l)y unnecessary prolixity to be borne by the party chargeable with the same. The second kind of prolixity was more serious, and might embarrass the defendant by rendering- it difficult or impossible for liim to know how to deal with the unnecessary facts. Thesiger, Thesiger, L. J., said that the statement of claim must be- struck out in this case as oflFending against the rules, both by undue prolixity and by setting out evidence instead of facts. Seven pages of the claim Avere devoted to the administration of Froom & Co.'s business in Eussia, and two pages to the powers of the administrator by the Russian law. Foreign law should be pleaded like any other matter of fact. The particular pro- position of Russian law should have been stated, that the defendant might meet it, and all these docimients on the subject should not have been set out. The resolutions of the creditors Avere perhaps rightly set out, but the statement contained thirty^ pages of the most vague and uncertain allegations. It had been argued that under Order XXVII. r. 1, the defendant must prove that the prolixity complained of was embarrassing. In his lordship's opinion prolixity of this kind was necessarily em- Great pi-o- barrassing. Prolixity standing by itself, when carried to an ^^^^*^' , , extreme degree, would be a sufficient ground for striking out gvoxma tor o ^ _ i i • i striking the pleading, still more so when it was coupled Avith statements- out apajt Q^' evidence : and in the present case the statements of fact were Irom em- n • i i ■ barrass- SO mixed up with the statements oi evidence that it was ini- rnent. possible for the defendants to know^ what was the case they had to meet. But the statement of claim was embarrassing on another ground. Plaintiffs' counsel said at the bar that they intended to shape their case in a triple alternative form. Alter- native cases should not be mixed up together, but should be classed under separate headings, and alternative claims to relief should be clearly stated, as in Appendix C. Form 5, in the first scliedule to the Judicature Act, IST;"). It was stated at the bar that the plaintiflFs alleged a case of gross fraud against the defendants. Now the statement of claim contained no distinct charge of fi-aud; and if one thing was established more clearly than another by the practice of the old common law courts, it STATEMENT OF CLAIM. 37 ■was that ft-aud must be distinctly alleged and as distinctly proved. The Court would not infer fi-aud from a mere state- ment of facts from which, under certain collateral circum- stances, fi-aud might be inferred. It had been lu-ged that this was not the practice of the old Court of Chanceiy, but if not, it was a matter for rejoicing that a system of pleading was now in force which, in that respect, was more in accordance with the old common law than with the Chancery procedure. Any undue prolixity in a pleading may be dealt with in The effects •one of two ways. 1. Under Order XIX. r. 2, the Coart shall, in i\J'iy_ adjusting the costs of the action, inquire at the instance of any ])arty into any unnecessary prolixity, and order the costs occasioned by such prolixity to l)e borne by the party chargeable with it. 2. Or where the prolixity is greater, and is such as really to embarrass the other party in drawing his pleading in reply, he may apply under Order XXVII. r. 1, to have the whole ])leading struck out or amended. Order XXVII. r. 1 is to the following eifect : " The Court or a judge may at any stage of the proceedings allow either party to alter his statement of •claim or defence or reply, or may order to ])c struck out or ;{imended any matter in such statements respectively which may .be scandalous, or which may tend to prejudice, emban-ass or •delay the fair trial of the action, and all such amendments shall be made as may be necessary for the purpose of determining the real cpiestion or questions in controversy between the parties." The case last quoted {Davy v. Garrett) is one where, because of jjrolixity, the whole statement of claim was struck out as embar- rassing, and the remarks of Baggallay and Thcsiger,L. JJ.,as to Avhat ]irolixity will amount to an embarrassment within this rule, :are especially worthy of attention. In the cases of GoltUng v. Wharton Saltworks Company (L. E,. 1 Q. B. D. 374), and Watson V. Rodivcll (L. R. 3 Ch. D. 380), it was laid down by the Court of Appeal that striking out pleadings under Order Tliough XXVII. r. 1, was a matter of discretion, and that except in ^pp^.J ^•ery extreme cases, or where the judge liad adopted a wong ayerse to ])rinciple, the Court of Appeal would not interfere with his dis- jegiglo^,; crction, but the later cases, and especially Davy v. Garrett, on interio- show that the Court of Appeal, while as nmch as possible dis- J^^^^s, it couraging contests on interlocutory matters, will take care that will al- a i)arty shall not be embarrassed by imiiropcr i)lcading, and that ^^^l^^^,,^^' 38 GENERAL PRINX'IPLES AND RULES OF PLEADING. embarrass- the rulcs iiitciicled to i)reYent embarrassment shall be adhere(T ing plead- ^^^ ^^^^ ^.j^-^ ^^^.^ p^-,jj^^^ Jaines, L. J., remarked in Davy v. Garrett that the Com-t could not be too strict in taking care that the pleadings should not degenerate into the oppressive character of some of the pleadings in the old Com-t of Chancery. " We must not," added his lordship, " be di-iven to confess, a& Oliver Cromwell did with a sigh, in reference to his ineffectual attempt to reform the law and procedure of this country, that the sons of Zeruiah are too hard for us. For my own part I do not mean to succumb to their devices." As a sequel to the rule lately under consideration, that a- statement of claim must contain a concise statement of the material facts relied upon, is this further rule : — A siaiement of claim should not contain inferences and conclusions of law. The facts merely should be stated, and the C'om-t left to draw its own iDfereDces conclusions as to the law. Lord Justice Mellish refers to this and con- ^^^^^ j,^ Watson v. Rodwell (45 L. J. Ch. 74;)). He said he elusions -11 1 -!-• ^(1 II i. 1 i. of law not did not agree with what the \ ice-C haiicellor was reported to *° ^ have said that what would have been proi^erly admitted in the pleaded jr j. j old bill ^^as still admissible in the new pleadings. He thought that what were called " the charging parts," which were merely the pleader's view of the equity, should be omitted. And so iin the case of Hanmer v. Flight (85 L. T. N. S. 127 ; 24 W. R. 840) Brett, J., in giving judgment, said : "This case is one which shofls clearly some of the advantages which have been obtained by the passing of the Judicatm-e Acts. Pleadings now are no longer technical, in the sense that they must show the Hanmer v. precise legal form which the plaintiff's demand must take ; they Flifjht. jj,,^^. g}^Q^^, j^Ijq fj^cts, and then it is for the Coiu-t, from the facts, to decide upon the legal result of these facts. In this case it is clear that something is due from the defendant to the plain- tiff, though it may not be so clear what is the legal relation between the parties, or what would have been the exact form of pleading under which the amount due would under the former system of j^leading have been recovered." This case was after- wards overruled in the Court of Ajjpeal (see SC L. T. N. S. 271»> upon the facts as set out in the pleading, but the decision of the Court of Appeal does not seem to affect the correctness in point of law of the remarks of Brett, J., abo\e quoted. Plaintiff Another rule closely allied to the one last stated is that a STATEMENT OF CLAIM. 39 plainiijf in his sfatemfnt of rlaim need noi sfafe iinder what par- need not ficular form of action he is j^roreeding, nor in what par tini tar what foni/ legal relation he claims to stand to the defendant. In support of action he and explanation of this rule the remarks of Brett, J., in Hanmer JnJ^^o^i.^' y. Flight are refen-ed to {ante, p. 38) ; but the principal case upon in ^^'hat the ])oint is the 3Ietropotitan Railwag Co. \. De fries (36 L. T. Ij^^Jq^ j^^ N. S. 150). The whole of the statement of claim in this case is stands to set out in the text at pajj-es C29 — G'd'2,]Jost, to which the reader fendant. is referred for the facts. The defendants demurred, and the case came before Mellor, J., and Field, J., in the Queen's Bench Division. Both learned judo-es concm-red in disallowing the demuirer, and in giving judgment Field, J., said : " The de- fendants do not deny their occui)ation, nor the fairness of the smn claimed, nor the payment to them of the interest agxeed : they only say this particular form of action cannot be adopted under the circumstances stated in the claim. It is a mistakt.' to su])pose that ereiy element in the action for use and occupa- tion must now be contained in a statement of claun in order to enable a plaintiff to recover. We are here to see if the plaintiff shows any cause of action, either in law or equity. The con- tract stated, coupled with the fact, also stated, that the de- fendants have been in occupation, is sufficient to raise the inference of such use of the premises as that contemplated in the agi'eement for which tlie defendants were to be subject to rent. It seems to me that our judgment should be for the jihiintiffs for the amount claimed." This decision of the Queen's Bencli was upheld by tlie Court of Appeal (36 L. T. N. S. 495). " Where the ptainfijff seeJcs retief in respect of sererat distinct Plaintiff claims or causes of complaint fovnded upon separate and dis- ^e^pfgi^pf tinct facts, theg shall he stated as far as mag be separatelg and separate distinctlg.'' (Order XIX. i-. !).) By Order XVII. r. 1 a plain- J^^ed tiff is allowed to unite in the same action, and in the same on separate statement of claim, several causes of action ; and this rule ^I'^ll ^^^^^ merely means that where a ])laintiff avails himself of Order separately. XVII. r. 1, he must let all the averments that are essential to each cause of action follow each other in order, and not mix up indiscriminately throughout the statement of claim the aver- ments relating to one cause of action with those relating to another cause of action. The jn-ayer f(tr relief, however, does not follow on the avcnuent of tin,' fact.s which support it, but 40 GENERAL PRINCIPLES AND RULES OF PLEADING. Watson V. Hawkins. Scandalous matter must not be pleaded. Except comes in at the end of the claim ; and the case of Watson v. Haiclcins (24 W. R. 884) is an authority for saying that facts stated in a pleading need not be assigned to any ]iarticular prayer, for so long as they tend to show that the party relying on them is entitled to any one of the reliefs clahned, the ]iaragraph containing them is not demuiTable. Lord Cole- ridge, C. J., in this case said : " I thought at first that a defendant was entitled to say, ' I want to know to which por- tion of your prayer you apply such and such a ]iaragraph of your claim.' But that is not so. By Order XXVIII. r. 1 the ground of a demurrer to any pleading or to any part of a plead- ing must Ijc ' that the facts alleged therein do not show any cause of action, &c., to which ctfect can be given by the Court as against the party demurring.' Hence so long as a paragraph supports some one or more of the claims in the prayer, it is not demurral)le. The plaintiff is not bound to assign such and sucli paragraphs to such and such a prayer. He states all the facts that he deems material, and then he asks for such and such relief ; and if each fact set out tends to show that he is en- titled to some relief, and that relief is asked for in one of the prayers, the paragraph setting out that fact must stand." And Lindley, J., expressed an opinion that unless the party de- mun-ing can show that the ])aragraph demurred to entitles the party pleading it to absolutely no relief, the demurrer must fail. As long as the facts entitle him to some relief, he is entitled to set them out whether he has asked for the proper relief or no. Another rule to be borne in mind in drawing a statement of claim is that no averment ivltich is scandalous must he intro- duced. If this rule is violated the otfending part of the claim may be struck out under Order XXVII. r. 1 ; Init an aver- ment is not scandalous within the meaning of this rule merehj because it makes a serious and in one sense scandalous imputa- tion upon another. An imputation of the kind is only scanda- lous when, in addition, it is irrelevant to the subject-matter of the action. In the case of Blaise v. Albion Life Assurance Co. already referred to {ante, p. 27), Lord Coleridge at the end of his judgment said: "Our present decision must not be taken to prevent in any way any scandalous matter from being pleaded, if it be relevant to tlie issue." Of course any matter pleaded STATEMENT OF CLAIM. 41 wliich is iiTclevant to the issue may be struck out on the ground where it ofprohxity; but probably on the principle i>^ minimis non carat ^^ t^i^g''*" h'l, where the irrelevant matter in a particular pleading is issue. in quantity only trifling, the Court will not interfere, but however trifling the amount of the irrelevant matter which is also scandalous the Court will interfere. The plaintiff i)i his statement of claim need not and should not Facts uot plead any facts in anticipation of and to meet the defence. — This ^°J^'^'^^ j^^_ Avas a rule of pleading prior to the Judicature Acts {see wayofan- Stephen's Principles of Pleading, 7th ed. 21)0), and after some J^^J'^*^"' discussion it has been finally settled to be the rule under the new system. The point first arose — at least in a measure — in Earp V. Henderson (L. R. 'd Ch. D. 254) before Bacon, V.-C. There the plaintiff" in his statement of claim averred that the plaintiff", on the 22nd October, 18()7, let to the defendant the Prince of Wales Theatre, Liverpool, for ten years at an annual rent of 1,050Z., and that there was an agreement between the parties that in the event of the defendant disposing of the lease with the plaintiff"s sanction he should pay to the latter half the sum which might be realised. It then went on that in June, 1873, the plaintiff sold the theatre to one J. H. A., and that the de- fendant then sun-endered to the said J. H. A. all his interest in the theatre for oOO/., and the prayer was for a declaration that the defendant was a trustee for the plaintiff" for 250/., and an order upon the defendant to account for and pay the said sum to the plaintiff' with interest. The defendant in his statement Earp v. of defence admitted the agreement of the 22nd October, 18G7, -^eftrfen-.^. and also admitted that he had surrendered his interest in the theatre to J. H. A., but said that the sum he had received after deducting certain costs Avas only 3 Hi., and he paid half that amount into Court. The plaintiff" in his reply first of all joined issue on the defence, and then went on: "The plaintiff" says that if the defendant only received /., as in the statement of defence mentioned, it was because the said J. H. A., in the plaintiff"'s claim mentioned, claimed from the defendant damages for breach by the said defendant of an agreement jikkIc [here followed a description oi" the agreement], and as a comj)romise of such claim the said defendant allowed tlie said J. H. A. to set off or deduct from tlie said sum of 500/. the sum of /. in discharge of the liability of the said defendant to tlie said 42 GENERAL PllINX'lPLES AND RULES OF PLEADING. J. H. A. Tlie ])liiiiititt' lias iiotliiiig' to do witli the said liability so compromised as aforesaid, and claims the moiety of the said sum of AOt)/." The leanied A^ice-Chaiicellor held that this reply was erroneous in form, and that the matter allegx'd in it should have been introduced into the statement of claim by amendment of the latter. He h(t\vever confined his decision to the facts of the particular case. Shortly after this decision the case of Hall \. Eve (L. B,. 4 Ch. D. 341) came before the same learned judge. The plaintiff in this case claimed specific performance of an agreement dated 5th //„// V. March, 1875, made between the defendants Eve and WhifFen of -^''''- the one part, and the defendant liane of the other part, whereby Eve and Whitf'en agreed to grant a lease of certain building land to Lane for ninety years, with an option to Lane of purchas- ing the freehold at a price therein mentioned before the 25th of Dec, 1875. The plaintitt^' in his statement of claim alleged that Lane had transferred his interest to the plaintiff, wdio gave notice of his intention to purchase, but that Eve and Whiffen refiised to execute a conveyance to him. The defend- ants Eve and Whiffen, by their statement of defence, alleged that before the transfer of the agreement to the plaintiff the defendant Lane had committed certain breaches of his contract which gave the defendants Eve and Whiffen a right to put an end to the agreement, which they had accordingly done. The plaintiff then, by his reply, pleaded that if (which he did not admit) there had been any default or breach of the agreement by liane, the defendants Eve and Whiffen had waived it ; and as to the provision which was alleged to have been broken, lie pleaded that if it had been broken by Lane, the defendants were not entitled by reason of such breach to deter- mine the agreement, for reasons which he stated. He also alleged concealment and false representation and want of equity ; and lastly he joined issue with the defendants upon their state- ment of defence. The defendant moved that the reply might be set aside as erroneous in form ; and the learned Vice-Chancellor acceded to the application on the ground that all the facts stated in the reply should have appeared in the statement of claim either originally or by amendment. The plaintiff a])]iealed, and the Court of Appeal reversed this decision. James, L. J., said : " The question is this. The plaintiff' in STATEMENT OF CLAIM. 4), and Bagot v. Easton (L. R. 7 Ch. D. 1). In the Honduras Inter-Oceanic Compang v. Lefevre and Tuclcer the plaintiff first alleged that Tucker was authorized by Lcfe-sTe to make the contract sued on, and then the claim iiondum.'>, went on that Lefe\Te denied this, and hi effect said, " If the Com-t ^''\ ^'f; "" believe Lefevre I allege, in the alternative, that Tucker had no authority from licfevre, and is liable to me accordingly." Here were certainly two inconsistent sets of facts alleged, although the plaintiff did not specifically in the first instance adopt them both. He stated them both, adopted one set of facts, but said in the altcriuitive I shall if necessary adopt the other. In Child v. Stenning it was very much tlie same thing. Child v. There the plaintiff aheged in the first place that the Stennings '-'^'''*""'^- Avere trespassers, and as such liable to him. Then he set out that they claimed a right of way from AVaguei', and in effect said if this be true Wagner is liable to me. The ]ilaintiff here sets out both sets of facts on the lace of tlie pleading, and says be shall rely ui)on either. JJagot V. Easton was a case (»f this kind. The plaintiff Banotv. alleged that the defendant and he had entered into an agree- ■^"^'""• mcnt ]>y whi<;h the plaintitf was to put a siun oi" £2,400 into the 4G (iKXEKAL PRINCIPLES AND RULES OF PLEADING. Facts ill narjot V. Easton. Jutlgment. of Jjacon, V.-C. couceni ami go out to Honth America and wtirk certain estates Ibr the joint benefit of himself, the defendant, and a third person ; tliat the agreement of ])artnership was only to be for three years in the first instance, l)ut the plaintiff was to have a right of continuing it for a term of twenty-one years if he chose. The claim then alleged that the plaintiff went to South America, and had greatly improved tlic estates in ques- tion, but that the defendant refused to continue the enterprise any longer, had sent a person out to South America to stop the working of the estates, and refused to honour drafts drawn by the plaintiff for the ordinary purposes of the enterprise, and according to the agreement. Tlie statement of claim also averred that the plaintiff' was induced to enter into the agree- ment by the rei)resentations of the defendant that the enterprise would be veiy beneficial for the jilaintiff, and that he and his cousin were to be ])artners in the adventure not only for three years, but for the farther term of twenty-one years, and that he executed the agreement with the intention and in the belief that the rights of partners ^\ould be thereby secured to his cousin and himself. Under these circumstances the plaintiff claimed by his statement of claim a declaration that he was induced to execute the agreement and to give a secm'ity by which the defendant was enabled to obtain payment of the 2,400/. by the misrejiresentation of the defendant and in ignorance of the true effect of such agreement, a recission of the agreement and repayment of the :2,-10()/., and a declaration that the plaintiff was entitled to a lien on all the assets of the adventure for the 2,400?., or in the alternative a dissolution of the partnership between the j^laintiff and the defendant, and to have the imrtnership accounts taken and assets realized and distributed. Application was made to Vice-Chancellor Bacon for an order confining the plaintitt"s claim to one or other of the causes of action in respect of which he by his claim sought relief, and that the statement of claim should be amended accordingly. The learned judge being of opinion that the statement of claim disclosed two totally inconsistent states of facts, and two totally different forms of reUef upon totally inconsistent grounds, made the order asked for. The plaintiff' appealed, and the Court of ap]ieal overruled the decision in the Court below. The Lord Chancelloi", in giving judgment, said STATEMENT OF DEFENCE. Limit to the rule. that he thought, independently of the Judicature Acts, the Jiuigment alternative relief claimed could have been ,i;-iven ; but that in ^.^jj.^^* (j_ any case those Acts had enlarged the liberty of the plaintiff in on appeal. claiming relief, and that in view of them, the matter was per- fectly clear. It must be remembered that his lordship, in sug- gesting that relief might have been given in a similar case before the Judicature Acts, was referring, not to common law pleadings, where it is beyond question an alternative case of the kind could not have been set up, but to pleadings by bill in Chancery. Bagot v. Easton is not such a strong case as the two quoted before it, because the inconsistent facts do not appear so clearly in the body of the claim as in the other cases ; but so far as it goes, it is an authority for the rule stated, that a plaintiff may set out in tlie body of his claim inconsistent facts in support of a claim for alternative relief. The rule above suggested does not go so far as to say that he may adopt as his own both inconsistent sets of facts, and boldly contradict himself in succeeding paragraphs. No opinion is given on the question whether or no he may do this ; but the point is of little practical importance, for it is generally enough for the plaintiff to take one view, allege that there is another view, set out the facts in suppt)rt of it, and then say that if necessary he will abandon the first and ado]U the latter view. Statement of Defence. The clianges made by the new practice in the form of the .statement of defence and the character of the averments it must contain are even more sweeping than in the case of the statement of claim. First of all, as a matter of form, all the allegations contained in the defence must be arranged in numbered para- gi'aphs, as in a statement of claim ; and then, as a matter of substance, all general j)leas, under which the defendant might Ibnnerly have proved a variety of t(jtally different defences, are abolished, and every defence relied on nnist be ])leaded sejmrately and distinctly. This gets rid for ever of the plea of not guilty or the general issue, as it was called ; and the learning (jf which the old works on pleading, as JJullen and Jjcake and Chitty, are full, on the subject of wiiat can be ])roved under the general issue, is now quite obsolete. There is, however, one exception to the nde al)oh'Kliing Except in General is.siie abolislied. hy sta- tute 48 GENERAL PRINCIPLES AND RULES OF PLEADING. tlie case ovnerul defences. By rule 1 C of Order XIX., " Nothing in fem'ro?" ^'^*-'*^^ 1'^^'^'^ contained shall atfect the right of any defendant to 'not guilty ])lcad nut gnlltv l)y Statute. And every defence of not guilty l)y statute shall have the same etfect as a plea of not guilty by statute has heretofore had. But if the defendant so plead, he shall not plead any other defence without the leave of the Court or a judge." The effect of this is that a defendant can still as heretofore plead not guilty by statute in a certain class of cases, and the questions then arise, In what cases was this plea all(jwed ? and what was the eft'ect of it ? The principal cases where this In wi,at plea could be pleaded, and as a defence can still be pleaded, are: cases the ^ Bv 11 & 12 Vict. c. 44-, s. 10, in case of actions brought may be against justices of the peace for anything done by them in the i.ieaded. execution of their office. 2. By 13 & 14 Vict. c. 61, s. 19, in case of actions brought against the bailiff of a county court, or clerk of a county court {Dews v. Riley, 11 C. B. 434), or any person acting by their order and aid, for anything done in (jbedience to a waiTant of the court. 3. In cases of illegal and irregular distress (11 Geo. 2, c. 19, s. 21). 4. Pohce officers and constables, by various statutes, where they are sued for anything done by them in the execution of their office (see 7 Jac. 1, c. 5 ; and 21 Jac. 1, c. 12, s. 5 ; 10 Geo. 4, c. 44, s. 41 ; 1 & 2 Wm. 4, c 41, s. 19 ; 2 & 3 Vict. c. 93, s. 8). 5. In actions against any officer of the army, navy, marines, customs, or excise, or against any person acting under direction of the conmiissioners of customs for anything done in execution of the Customs Acts (by IG & 17 Vict. c. 107, ss. 313, 317). 6. By 42 Geo. 3, c. 85, s. 6, all persons holding any public office, civil or military, and having authority to commit persons to safe custody, for any act dene l)y them in execution of their office, can, when sued for any act performed by them in the discharge of their duty, plead not guilty by statute. 7. Generally in case of penal actions (21 Jac. 1, c. 4, s. 4, and see Earl Sjjencer V. Suwinell, 3 M. & W. 154 ; Jones v. Williams, 4 M. & AV. 375). 8. In cases where persons have acted hi pursuance of the 24 & 25 Vict.c. 96 (the Larceny Act) ; the 24 & 25 Vict. c. 97 (Malicious Injuries to Property Act) ; the 24 & 25 Vict. c. 99 (the Coinage Act) ; the 5 & G AVm. 4, c. 50 (the Highway Act); or under the subsequent Acts relating to highways ; the 30 & 31 Vict. c. 125 (the Contagious Diseases Animals Act). This does not STATEMENT OF DEFENCE. 40 profess to be an exhaustive list of the cases wliere the defence of " not guilty by statute " can be pleaded, but it includes a great majority of the cases ; and in a given case the pleader can have no difficulty in ascertaining whether there is any statute authorizing this general form of pleading. The defendant by pleading it denies his liability generally, and Effect of practicaUy he can give evidence under it in support of any defence ^'L statute, that he may have. As to the form of the plea, rule 1 6 of Order -p^^^ ^f _ XIX. expressly preserves the old law on the subject ; and this being so, it would seem that rule 21 of Trinity Term, 1853, is still in force. It provides : "In every case in which the defendant shall plead the general issue intending to give the special matter in evidence by virtue of an Act of Parliament, he shaU insert on the margin of the plea the words 'by statute,' together with the year or years of the reign m which the Act or Acts of Parliament upon which he relies for that purpose were passed, and also the chapter and section of each of such Acts, and shall specify whether such Acts are public or other- Anse; otherwise such plea shall be taken not to have been pleaded by virtue of any Act of Parliament ; and such memorandum shall be inserted in the margin of the issue and of the Nisi Prius record." A defendant may plead together as many inconsistent defences Incou- as he pleases ; and to do this he does not now need the ^I'^fgQggs leave of the Court. See Spurr v. Hall, L. R. 2 Q. B. D. 615. may be When the new system first came into operation, it was urged ^.j^^^o^j^ in several cases that this could not be done. The first re- leave. ported case of the kind is Restell and Wife v. Stetvard (W. N. 1875, 231), before Quain, J., in chambers. This was an action for slander, and the defendant pleaded — (1) that he did not speak the words complained of; (2) that he did not speak them maliciously ; and (3) that they were true (justification). It was urged that such inconsistent defences as a denial and ^estdlv. justification could not be pleaded together; but the learned judge disallowed the objection. Another case in chambers upon the same point is JJamicot v. ffatm (W. N. 1876, 24). ^("'ycot This was an action for money lent, and the defendant had pleaded — (1) that the plaintiff never lent the money ; (2) that if he did, he lent it to somebody other than the defendant ; (3) that the defendant had paid the money ; and (4) that the plaintiff 50 GENERAL PRINCIPLES AND RULES OF PLEADING. Quccre, whether defemlaut may pay money into Court and deny plaintiff's right to sue. Spurr V. Hall. liiul released the defeiulant I'rom the payment of it. Objection M-as taken that all these inconsistent defences could not be pleaded together ; but Mr. Justice Lindley overruled the objec- tion, remarking that when the old form of pleading is appli- cable there is no objection to it. The defendant was entitled to say that the money was never lent to him, and that if it was he has paid it or been released. But although a defendant may thus generally plead together several distinct and inconsistent defences, the question has been raised whether he can, in respect of^ the same portion of the statement of claim, pay money into Court and also deny the plaintiff's right to sue. That the defendant may pay money into Court with respect to one cause of action in the claim or one part of the same cause of action where, as in the case of a claim for money or goods, it can be separated, and deny the plaintiff's right to recover with respect to another, there is no doubt whatever ; but the question is, can the defendant in the same breath, and with respect to the very same matter, in eflFect say to the plaintiff", " You have no cause of action against me, but I pay so much into Court as all you are entitled to in respect of that cause of action." There is one case under the new practice Avhere this seems to have been done. The case was Potter v. The Home and Colonial Insurance Company (not reported, but refen-ed to in Spurr v. Hall, post), and there the Court of Appeal allowed a defendant sued upon a marine policy to plead together unseaworthiness and payment into Court. The whole subject underwent a careful examination in the case of Spurr v. Hall (L. R. 2 Q. B. D. 615). The statement of claim and defence in this case will be found set out in the text, page 311, post, to which the reader is referred. The plaintiff" gave notice of motion that paragraph 9 of the state- ment of defence might be amended by specifying the cause or causes of action in respect of which the payment was made, or that so much of the defence as denied the allegations in the statement of claim might be struck out as embarrassing. The case came before the Queen's Bench, and after consideration, Mr. Justice Field delivered the following judgment for him- self and Mellor, J. His Lordship said : " This case raises a question of very general importance, viz., whether, in an STATEMENT OF DEFENCE. 51 action for nuisance brought since the coming into operation of the Supreme Court of Judicatm*e Act, 1875, payment into Com't can be pleaded in answer to the same causes of action as to which a denial of the plaintiff's right of action is also pleaded. The action is brought for three things ; first, for per- manent damage caused to the plaintiff's reversion by inter- fering with light ; secondly, for interfering with a water-spout ; and, thirdly, for taking away a stone from a wall belonging to the plaintiff". The defendants have pleaded, denying the plain- tiff"s right to sue as reversioner, denying that the dwelling- house in question is interfered with, denying the right to light, and denying that the plaintiff has been injm'ed either by the interference with the water-spout or by the removal of the stone. All these defences the defendants have a perfect right to put into the record together ; but they have also pleaded in the following words. [The learned Judge then read the nth paragTaph of the defence, which see, at page 315, post.] The result, therefore, is that the defendants have paid £20 into Court Judgment in respect of the same causes of action as those the existence of °^ ^^®'^^' ^' which they deny. ... In the first place, the pleadings are clearly inconsistent, but ever since the statute enabling .several pleas to be pleaded together (4 & 5 Anne, c. 16, s. 4), it has been held to be no cause for objecting to pleas that they are inconsistent with each other, and such pleas have been habitually pleaded together. But this permission has never been extended to pleas of payment into Com't, which stand ui)on a different footing. Before the Judicature Acts (except in certain instances specified in the Common Law Procedure Act, 1852, s. 4), leave was wanted to plead several pleas to- gether, and payment into Court was never pei'initted to be pleaded together with any otlier plea to the same cause of acti(m. The (jnestion before us now is whetlier any change has been introduced as to this by the Judicature Acts. Under those Acts, no leave to plead several defences together is wanted, and the only remedy which the plaintiff" lias when defences are improperly joined is to apply under Order XXVII. r. 1 [the learned Judge read it]. Tlie question wliich we have to decide is whetlier ])]eading payment into Court in such an action and in such a form as the present, covering as the paragraph docs the causes of action denied by the previous £ 2 GENERAL PRINCIPLES AND RULES OF PLEADING. Ficlil, J. Distinction between actions for nviisance and other claims upon this l^oint. l)aragraplis, tends " to prejudice, embarrass, and delay the fair trial of the action." It was argued for the defendants that it would be convenient that they should be allowed to pay money into Court without admitting the plaintiff's right of action. It was said that the action is brought by the plaintiff to recover- money, and the defendants ought to be able, if they so wish, to let him take the money he claims without at the same time being obliged to admit his right ; and the defendants claim to be entitled to plead payment into Court in this way under Order XXX. r. 1. But that rule is controlled by the other rales in the same order, and a defendant cannot pay into Court under rule 1 in this form, under such circumstances as would render the provisions of rule 4 inoperative. The only authority which was cited for the defendants was Potter v. The Home and Colonial Insurance Company, a case which was aftei-wards tried before me, when the Court of Appeal allowed the defendants to plead unseaworthiness and payment into Court. The case was not argued on that point, but still, if it had been exactly similar in its circumstances to the present case, it would be an autho- rity for allowing the defence to be pleaded. But the present case is very different, and is an action of a peculiar character, showing peculiar consequences. It is in its main intent and purview an action of nuisance which was originally introduced in substitution for an old ^n-it, by which the nuisance could be ahated. Now, in actions for nuisance, damages up to the commencement of the action only can be recovered, and not damages for injury to the saleable value of the property ; and the consequences of allowing the two defences to stand together would be this. It is probable, looking to the circumstances of the case, that the plaintiff' would be advised to take the £20 out of Court, and then a difficulty would arise. If he had established his right upon a traverse of the defendants' pleading in bar, he would have been entitled to bring a fresh action for any further damage done, and it is clearly established that in that new action he would be entitled to recover exemplary and vindictive damages, for if it were otherwise, as has been said, the wrongdoer could forcibly purchase the property to which the injury was done. But how is the plaintiff, in the present action, if he wishes to exercise his rights under rule 4 by taking ' the 20/. in satisfaction, to deal with the defences denying his STATEMENT OF DEFENCE. 53 right of action ? If he admits those allegations, there is this anomaly, that he would admit he had no right, and yet recover damages for breach of his right ; and as to costs, instead of taxing his whole costs and bringing a new action, he would probably have to pay the costs of all the other issues. Again, what would hap]jen vdth his new action ? In that action the defendants would pay into Court perhaps £5, and go on in the same way as often as the plaintiff sued them, until at last, when the "Witnesses are dead and the means of proving the case, are lost, the defendants could defeat the plaintiff without offering any satisfaction by denying his right and putting him to the proof of it. We think 'that if acts have been done by a defendant which amount to an assertion of ownership, or inflict injury on the plaintiff's property, and the defendant is sued, he must say whether he denies the plaintiff''s right or admits it, and must plead in such a manner that the plaintiff, if he succeeds in proving his right, may be enabled in a second action to claim substantial damages in the event of any new injuiy. The order will therefore be that the 9th paragi'aph of the statement " nant in a lease to repair and uphold the demised premises. The effect. defendants Barnicott and Isett, who were the lessees from the plaintiffs, agreed to sublet the premises to the defendant Tunewell, subject to their obtaining the consent of the plain- tiffs. Before this consent had been obtained, Timewell with- out the knowledge of the other defendants got into possession of the premises, and commenced pulling down and converting them into a skating rink. As soon as the plaintiffs became aware of this, the action was commenced claiming possession of the premises, damages from Barnicott and Isett for breach of covenant, and an injunction against Timewell. Timewell de- livered a defence and counter-claim headed, " Statement of Defence and Counter-claim of the Defendant A. T. Timewell." It consisted of fourteen paragraphs, numbered consecutively ; the first thirteen paragi'aplis couLaiued a statement of the facts, on which the defendant relied by way of defence, but made no 80 GENERAI. nUNClPLES AND RULES OF PLEADING. Crowe V. Barnicolt contiuucd. Jiulgment of Fry, J. reference to a counter-claim. Among other things, there was a statement that the defendant had entered into a covenant for the erection of iron buildings on the demised premises at a cost of £1500, and that he had ah'eady laid out £500 on the pre- mises. Paragraph 14 followed immediately after paragraph 13, without any distinction, and was in these words : " This defendant, by way of counter-claim, claims to be paid by the plaintiflFs, and the defendants, Barnicott and Isett, damages for the loss he has sustained in consequence of his expenditure aforesaid upon the said premises to the amount of £1500, and he claims interest on such sum." At the trial, objection was taken that there was no statement of facts in the body of the counter-claim to support the counter-claim. It was replied on the other side, that as the defence and counter-claim were one document, it was sufiicient if the facts relied on were stated once, either in the defence or the counter-claim ; and besides, the objection ought to have been taken before : Barnicott and Isett had replied, and in their reply had treated the document as a good counter-claim. In giving judgment. Fry, J., said : " I am of opinion that this preliminary objection is a valid one. It is quite plain that paragraph 14 of the document refers to that which has gone before, and if you do not read that, you do not know what paragraph 14 means. There can be no doubt that in that paragraph itself there is no specific statement of the facts upon which the defendant relies for the relief which he claims. The rules bearing on the subject are rules 3 and 10 of Order XIX. [His Lordship read them]. The 10th rule, in my opinion, means that the defendant must state specifically in his counter-claim, or as the Master of the Rolls expressed it in Holloway v. York, in the body of the counter-claim, the facts upon which he relies for relief. A counter-claim is intended as a substitute for a cross bill, and thei'efore the facts upon which reliance is placed should appear in the counter-claim itself. If para- graph 14 alone is looked at, it is not disputed that the facts relied on do not appear. But it is said that the whole docu- ment is a defence and counter-claim, that it is an amalgamation of the two things, that the whole of it must be looked at together. I think that such a mode of pleading is not sanc- tioned by the rules, and that it would be highly inconvenient. If it were permitted, the result would be that in every case of a COUNTER-CLAIM. 81 counter-claim, the pleader woiild omit to state the specific tacts upon which he relies by way of counter-claim, and would take his chance of picking them out of the statement of defence^at the trial. I am confirmed in this view by the forms of counter- claim Nos. 10 and 14, contained in Appendix C. to the Rules. The forms are not, indeed, intended to be exactly followed in all cases, but they are intended as guides. In those forms the counter-claim is separated by a marked line from the defence ; the facts are stated separately, and the paragraphs are num- bered differently. I am of opinion, therefore, that I cannot treat this as a proper comiter-claim, and I dismiss it with costs." His Lordship then refused leave to amend. The generality of Mr. Justice Fry's remarks in this case as Scmblc to separating the counter-claim fi'om the defence by a marked ^f^i'^^^d line, and as to numbering the paragraphs of a counter-claim tween de- consecutively after those of the defence, has since been tinali- *^°°^ ^^'-^ . . ^ counter- fied by the same learned judge in the case of Lees v. Patterson claim not (38 L. T. N. S. 451). This was an action for partnership necessary. accomits, and the plaintiff immediately upon commencing his action obtained a writ of ne exeat regno against the defendant, who was aiTcsted, but paid the amount for which tlie Avrit was marked into Court and then was released. The defendant, in his defence, set up various defences, an-d referred to the writ of ne exeat regno taken out, and the orders made against him ; and then in the '>{)t\\ paragraph of his statement of defence went on as follows : " The said George Patterson also states that the said two orders and A\Tits of ne exeat regno were improperly obtained, and that he was thereby arrested and imprisoned on two occasions, and suffered considerable injury and damage, and he claims to set-off the amount which shall be ordered to be jjaid to him by the plaintiff and the defendant G. Lees respectively, either under the undertaking as to damages contained in tlie orders respectively, oi" otherwise, against any amount wJiich may in this action l)e fcnnid to be due to the plaintiff and tlie defendant G. Lees, or either of them." It must be noticed Nor .s^wWe that this paragraph was numbered consecutively after the para- "^"yt^^ne ^ " ^ *' ^ to show graphs which formed the defence, and there was nothing in the wiiere .le- form of the pleading to distinguish the defence from the claiin, ^^'l^'^ ^"'''' , , , ,. , and couii- not even the usual heading at the commencement of the tcr-daim counter-claim, viz.: "And by way of set-off and conntcr-claim '''^"""^"'■('■s. 82 CiENERAL PUINCirLES AND RULES Ob" PLEADING. Result of decisions on rules. tho defeiKlaiit says," &c. Objection was taken at the trial that the facts rehed oti to support the connter-claim were not stated separately from the statement of defence, and Crowe v. Barni- cott {supi-a) was quoted. Mr. Justice Fry was, however, of opinion that the facts were sufficiently stated. In Crowe v. Barnkott the defendant only claimed damao-es " for the loss he had sustained in consequence of his expenditm-e aforesaid." Here he referred to " the said two orders and writs of ne exeat regno" which had been previously mentioned. It must not be assmned, however, that the mode of pleading a counter- claim adopted in this last case is a model to be followed. Tho decision merely was that it was not so egregiously WTong as to invalidate the counter-claim. The combined effect of these cases and rules 3 and 10 of Order XIX. seems to be that, although the paragi-aphs which make up the counter-claim may be numbered on consecutively after those which constitute the defence, and although it is not aljsolutely essential that the conunencement of the counter- claim should be distinguished fi'om the end of the defence in any marked way, yet it is necessary that there should appear iii the body of the comiter-claim itself all the facts on which the defendant relies in support of his counter-claim ; and it is^ not enough that the necessary facts can be found scattered tlu'oughout the defence and the counter-claim. It is submitted,, however, that there is no objection to an express incorporation by appropriate words of paragraphs to be found in the defence into the counter-claim, and that when this is done the effect is that the allegations of fact set out in the incorporated para- graphs must be taken as set out in the body of the counter-claim- within the meaning of the rule. To illustrate what is meant, take Statements the case of Croive v. Barnicotf, siqira, p. 80. If there the defendant had introduced into what he intended to be his counter-claim a paragraph incorporating into the counter-claim all the para- graphs in the defence which refen-ed to the expenditure he had made upon the demised premises, and then had gone on to claim as he did damages in respect of the same, it is submitted that no objection could have been taken to the pleading. A similar course to this has been adopted by many eminent pleaders, the fonnula of incorporation commonly adopted being, "The defendant repeats the allegations contained in the para- iu defence may be semble in- coiijorateil by refer- ence. REPLY. 83 graph of the statement of defence, and further says, &c. ; " and there can be no doubt that by this means considerable prohxity of pleading is frequently saved. Take a case which often occurs, where the veiy same facts which constitute a defence to the action, also, either as they stand or with an additional allega- tion or two, make a good counter-claim. Is it to be said that in such a case the defendant is to set out first in his statement of defence and then in his counter-claim the very same set of facts and in the very same words and detail ? Where a defendant has to set out in his counter-claim at ^^^^_^ .^« to length the facts on which he relies, the pleader must bear in &c.^ j-e-^' mind that by rule 3 of Order XIX. a counter-claim is regarded luting to as a statement of claim for many purposes, and that therefore of daim to the rules against prolixity of statement and so on akeady given ^e observed when treating of the statement of claim must be strictly counter-"" observed by him. claim. RppJi/. The substance and form of the plaintiff's reply vary with the nature and form of the statement of defence, and will be different, 1st : where the defendant in his defence has merely denied the allegations in the claim, or set out new facts which the plaintiff in his turn niprehj wishes to deny. 2nd: where tlie defendant having set out new facts, the plaintiff in his turn wishes to set out new facts to meet him ; and, 3rd : where the defendant has pleaded a counter-claim. 1. In the cases within the first of these three classes, the Form of plaintiff"s course is very simple. In his reply he merely joins wheL de- issue on the statement of defence. Having told his own story fenclant once, he is not bound to deal specifically with each allegation allegations in the statement of defence, and it makes no dift'erence i° "^^^'"1' though the defendant has introduced new facts into the case, new facts The plaintiff is not bound to deal specifically with them, but by ^l''cl'. a general joinder of issue he puts the defendant to proof of tiiei-eiy them. Rule 21 of Order XIX. expressly confers upon a wishes to j)laintiff this right. It says: "Subject to the last preceding "^^"^^ rule, the plaintiff by his reply may join issue upon tlie defence, and each party in his pleading, if any, subsequent to reply, may join issue upon the previous pleading. Such joinder of issue shall operate as a denial of every material allegation of o 2 84 GENERAL PRINCIPLES AND RULES OF PLEADING. Where defendant states new facts to which plaintiff desires to reply other facts. Where defendant counter- claims. Mode of replying to defence and counter- claim. Hillman V. Mayheio. tact in the pleading npon which issue is joined, but it may except any facts whicli the party may be wilhng to admit, and shall then operate as a denial of the facts not so admitted." 2. But where the defendant has pleaded now facts, it may be that the plaintiff in his turn wishes to plead new facts to meet them ; and this it is now decided he may do. (See Hall y. Eve, ante, p. 42 — 45.) In that case he will set out the new facts in paragraphs, having regard to the rules laid down for setting out facts in statements of claim, and also rule 11) of Order XIX., which is as follows : " No pleading, not being a petition or summons, shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the j^arty pleading the same." (See O'FarreU v. Stephenson, reported in the "Law Times " of August 10th, 1878, and Addenda to this work.) 3. The third case is where the defendant has pleaded a counter-claim. As a counter-claim is regarded in very much the same way as a statement of claim, it foUows that the reply, in cases where there is a counter-claim, must, so far as it deals with the counter-claim, be framed like a statement of defence ; and such indeed is the rule ujion the point. Rule 20 of Order XIX., which has been already quoted for another purpose, says : " It shall not be sufficient for a defendant in his defence to deny generally the facts alleged by the statement of claim, or for a plaintiff in his reply to deny gene rally the facts alkyed in a defence hy way of counter-claim, but each party must deal specifically with each allegation of fact of which he does not admit the truth." Where, therefore, there is a defence and a counter-claim with which the plaintiff in his reply has to deal, he wiU in the first paragraph of his defence join issue generally on the defence, or if he wishes to set up new facts in answer to new facts, he will, in the first and succeeding para- graphs of his reply, do so, and then proceed in the next paragraph to deal with the allegations contained in the comiter- claim, having regard all the Avhile to the rules against evasive denials, &c., laid down ^\\i\\ respect to statements of defence. If, however, there is a defect in the form of the counter- claim, as where facts are not pleaded in support of it, the plaintiff may merely join issue on it. This was decided in the case of Hilhum v. Mayhew (24 W. R. 485.) This was aii . REPLY. 85 action for the recoveiy fi'om the defendant of certain real pro- Judgment j)erty of which the plaintiffs were trustees. In the statement m.'r,'' of claim it was alleged that the defendant, pending negotiations for a lease, had by improper means obtained possession of the property. The defendant put in what purported to be a defence and counter-claim. In the first seven paragi-aphs the defendant in effect denied that he had obtained possession improperly, alleged the existence of a yahd agTcement for a lease, under which he said that he was in possession, and stated that the negotiations mentioned in the plaintiffs' claim were merely as to the form of the lease to which he was entitled under the agree- ment. By the 8th paragraph tlie defendant, by way of counter- claim, claimed to have the said agreement speciiically performed, and to have a lease granted to him accordingly, and for the pm-pose aforesaid to have the action transferred to the Chancery Division. The plaintiffs replied by merely joining issue upon the defendant's statement of defence. The defendant then moved under Order XL. r. 11 for judgment in favour of the comiter-claim as upon an admission in the pleadings. The Where J- ,.-,-,,,• 1 • ■ defendant Master of the Rolls however decided, that masmuch as, m vio- j^es not lation of rules 8 and 10 of Order XIX., the defendant had state facts . , , i. to support pleaded no facts in support of his counter-claun, he could not coxmter- complain if the plaintiff availed himself of rule 21 of the same claim i J- 1 • 1 J? plaintiff Order, and put in a joinder of issue to operate as a denial ot ^ay join the facts alleged by the defendant, instead of denying them issue * •' . merely. S|3ecifically and in detail. But where the defendant has properly pleaded his counter- claim, and the plaintiff in his reply has merely jomed issue, can the defendant forthwith get judgment for the amount of his counter-claim ? AVe have seen, that in the case of an improper answer to a statement of claim, the plaintiff may at once apply for and obtain, under Order XL. r. 11, judgment as upon an admission in the pleadings ; but there is this difficulty with regard to a counter-claim, that by Order XXII. r. 10 the judgment which a party pleading it is entitled to is a judg- ment for any balance in favour of the defendant upon the determinatif>n of both the original action and the cross action embodied in the counter-claim, and that balance of course cannot be ascertained till the conclusion of the whole suit. The point under considerati(m arose in the case of Roffe v. Maclarcn 86 GENERAL nUNCIPLES AND RULES OF PLEADING. (24 W. R. 810). That was an action for an account of rent and profits, against which the defendant by his counter-claim claimed to set-ott" a sum of money due to him from the plaintiff upon an award. The counter-claim was in all respects properly pleaded ; but the plaintiff, instead of dealing specifically wdth the allegations of the counter-claim, merely joined issue. The defendants then applied for an account of what was due to the defendant on the counter-claim, and for judgment accordingly ; Jiolfe V. ^^^^^ Hall, V.-C, refused the application, holding that he could Madarcii. not give judgment for the counter-claim without going into the Hall, V.-C. ^vhole of the plaintiff's case. Although however in a case of the kind it seems that a defendant cannot forthwith get judgment in his favom-, yet this advantage will result to him from the imperfection in the pleading on the other side, that at the hearing of the action the facts in the counter-claim must be taken to be admitted (miless leave to amend is given), and then the only question remaining, in order to ascertain the balance, if any, due to him, will be the liability of the parties in the original action. Rejoinder. Rules as to This is the last pleading which can be pleaded without the t^^t° ^^^'^'^ ^^ ^^^^ ^^^^^^- (^^■^^^' XXIV. r. 2.) Where there is no quent to counter-claim, and Avhere the plaintiff does not wish to set up ^^P^' new facts, the reply is, as already stated, in itself nothing more than a joinder of issue, and then there is no pleading subsequent to reply. But where there is a counter-claim, or the plaintiff has pleaded new facts, it is necessary for the defendant to deliver a new pleading. He may, if he pleases, join issue generally on the plaintiff's answer to his counter-claim, or on the new facts which the plaintiff has pleaded to his defence, and in that case the pleadings are at an end. If, howcA-er, he wishes in his turn to set out any new facts, he must apply for the leave of the Court to do so, and then plead them in accordance with the rules already referred to with regard to answering an opponent's pleadings. Amendment of Pleadings. By Order XXVII. r. 2 a plaintiff may, without leace of the Court first had, amend his statement of claim once at any time before the expiration of the time limited for reply, and before AMENDMENT OF PLEADINGS. 87 replying- (or, where no defence is pleaded, afc any time before the expiration of foiu* weeks from the appearance of the defendant who shall have last appeared) ; and by rule 3 of the same Wlicu order, a defendant who Ms set vp any counter-claim may also, de^fenduu vithout leave, amend such counter-claim at any time before the may amend expiration of the time allowed him for pleading to the reply, J^!^yg_ and before pleading thereto (or, in case there be no reply, then at any time before the expiration of twenty-eight days fi'om the filing of his defence) ; but in neither of these cases can either a statement of claim or a counter-claim be amended without leave while a demurrer to it is pending, and leave to amend will then only be given upon payment of the costs of the demm-rer. (Order XXVIII. r. 7.) It seems that a defendant has no absolute right to amend his statement of defence, nor has a plaintiff' a right to amend his reply ; although of com-se both these parties can apply to the Com-t for leave to do so, and such leave may be granted. Rules 2 and 3 of Order XXVII. will be useftd, among many other cases, in cases where, under the old system, a new assignment would have been necessary ; and in fact, us new assignments are by rule 14 of Order XIX. abolished, this is the only way in which the same result can be obtained. (See Order XIX. r. 14, and Earp v. Henderson, ante, p. 41.) It will have been noticed that the power of amending i)lead- ings as of right, and Avithout the necessity of applying for and obtaining leave, is very limited, being really confined to the two cases just given ; but the power vested in the Court of granting leave to amend is unlimited. By Order XXVII. r. ], Power of Court or "The Court or a judge may, at any stage of the proceedings, judge to allow either party to alter his statement of claim or reply, or order or may order to be struck out or amended any matter in such amend - statements respectively which may be scandalous, or which may "'ents T 1 ,1 i' • i ■ 1 X' i.1 unlimited. tend to prejudice or embarrass or delay the tair truil ot the action, and all such amendments shall be made as may be neces- sary for the purjoose of determining the real questions or (jues- tion in controversy between the parties." And by rule 2 of Order XX., " Where any ground of defence arises after the defendant has delivered a statement of defence, or after tlie time limited for his doing so has expired, the defendant may, and where any ground of defence to any set-oif (jr counter-claim arises after reply, or after tlie time limited for delivering a reply 88 GENERAL PRINCIPLES AND RULES OF PLEADING. IMattcr of ilefuiicc iirisiug after ]ileading may be pleaded by leave. Power of Court or judge to allow amend- ments before or at trial. Amend- ment on trial. Baddiiif) v Murdock. has expired, the phiintift' may, within eight days after such ground of defence has arisen, and hy leave of the Court or a jiuh/p, deliver a ftu-tlier defence or further reply, as the case may be, setting forth the same." The latter part of rule 1 of Order XXVII., which em- po\\ers the Court to amend a pleading at the instance of a hostile party on the gxound that it is embarrassing, &c., has already been treated of in dealing with the form of the various pleadings. What remains for consideration is the power of the Court to amend a pleading at the instance of the party whose pleading it is that requires amendment, and who thinks that by the amendjnent his case will be advanced. Referring to this subject, Fry, J., remarked, in Tildesley v. Harpm- (47 li. J. Ch. 264), " The power of the Court to allow amendments is unlimited, that is to say, it is only limited by what is right and proper;" and indeed, on examining rule 1 of Order XXVII. and considering the decisions upon it, it is impossible to say that his Lordship's remark at all exaggerates the fact. The rule says that the amendment by leave may be made at any stage of the action ; and it has been decided that it may be made at the trial of the action, and even so as to raise a new case requiring fresh evidence. Budding v. Murdoch (L. R. 1 Ch. D. 42) was a suit in- stituted to enforce a right claimed by the plaintiff to the flow of water along an artificial watercourse. The bill rested the plaintiff's title on a deed and also on prescription. At the trial the Court was of opinion that the plaintiff's title failed both under the deed and by prescription : and it w^as then contended that the watercourse had been constructed by the plaintiff at considerable expense with the privity of a prede- cessor in title of the defendant, w^ho had stood by and acquiesced, and that the plaintiff was entitled to succeed on that ground. The Master of the Rolls said that the case now set up by the plaintiff" was not set up by his bill ; and if the suit had come to a hearing before the recent Act, the question wliether the plaintiff" should be allowed to amend would have required great consideration. Under the circumstances, he thought the new practice ought to be applied, and that the plaintiff ought to have liberty to amend, and he made an order accordingly, with liberty for the defendant to put in a further answer, and both parties to go into further evidence. DEMURRER. S9 A similar case is Lafimcr v, BpU (tried at the Carlisle Spring- Latimer v. Assizes, 1878j. There, to au action of trespass a defendant i:>leaded several defences, including immemorial prescription. l)ut not prescription under the Prescription Act. At the trial it turned out that this defence could not be sustained, Ijut that a defence of prescription based on the Prescription Act might : and the learned judge (Lopes, J.) gave the defendant leave to amend his defence accordingly, and the case went on. In Kimj v. CorTce (L. R. 1 Ch. D. 57) the plaintiff in his hill charged the defendant with wilful neglect and default, but did not allege any particular act of default. Issue having been joined on the cause coming on for trial, leave was given to the plaintiff to amend his bill by charging some one or more act or acts of default, but on the terms that he should enter into no new evidence and should pay the costs of the present hearing. See also to the same eftect Roey. Davies (L. R. 2 Ch. D. 72')) Tei-nis on and CaldweU v. Pmjham Harbour, &c., Co. (L. R. 2 Ch. D. 221). ^'^^^g'^V The power of granting leave to amend in a proper case is ment on now entirely in the discretion of the Court, and it has been allowed. held in one or two cases that an affidavit showing the nature or Defendant materiahty of the proposed amenchnent will not be required. '''J^° J^'J* {CargillY. Boiver, L. R. 4 Ch. U. 78 ; Chesterfield Co. v. PAaclc, ^^.^sively 25 W. R. 409.) not allowed Where, however, a defendant has, in violation of rules 20 and •22 of Order XIX., pleaded an evasive denial of the plaintiff's claim, the Court has in a number of cases refused to allow any amendment, and given final judgment for the plaintiff. See Tlm-pe V. Holdsworth, Byrd v. Nnnn, TildesUy v. Harper, Collette V. Goode, supra, pp. 53, 58, 02, and G3. Demurrer. "Any party may demur to any pleadhig of the opposite J^^Jj^J.';*" party, or to any part of a pleading setting up a distinct cause of action, ground of defence, set-off, counter-claim, reply, or as the ciise may be, on the grcnind that the facts alleged tlierein do not show any cause of action or ground of defence to a claim or any part thereof, or set-off, or counter-claim, or reply, or as the case may be, to which effect can be given by the Court as against the party demurring" (Order XXVIII. r. 1) ; and by rule 2, " A demun-er shall specifically state whether it is to the whole or to a part, and if so, to what part, of the pleading of the 90 GENERAL PRINCIPLES AND RULES OF PLEADING. Demmrcr and defence on fact cannot lie pleaded together without leave. Demurrer to part of statement of claim not sus- tainable if matter sup])orts plaintiff's claim to any relief. opposite party. It shall state some ti,Tound in law for the demurrer, but the party demurring shall not on the argument of the demurrer be limited to the ground so stated. A demuiTer may be in the Form 28 in Appendix C. hereto. If there is no ground, or only a fiivolous ground of demm-rer stated, the Court or a judge may set aside such demurrer with costs." A demurrer and a defence to the very same part of a pleading can be contained in the same pleading, forming one docimient, but this can only be done with the leave of the Court (r. 4). Under the new practice demurrers will probably not be so frequent as was formerly the case. Indeed, Lord Justice Brett in one case exjDressed the opinion that it was now useless to denim- at all ; but that remark must be regarded in view of the particular facts then before his Lordship, and was only meant to convey that it was now useless to demm- on any merely technical j)oint, or on a defect in the pleading which was the result not of a weakness in the case itself, but of a slip of the pleader. In cases of the latter kind, the Court, upon the argument of the demurrer, will ahnost certainly give the party leave to amend ; and this has been done on the terms that each party should pay his 0^11 costs of the demurrer. {HalUwell v. Counsell, 38 L. T. N. S. 170.) But if the objection to a pleading is an objection not of form but of substance — an objection that the facts which the plaintiff" or the defendant relies on, assmning them to be properly pleaded, can still afford no good claim or good defence in law, to demur is still the proper course. Watson V. Hawldm (24 W. E,. 884), a case decided under the new system, is an authority that a demurrer to part of a statement of claim cannot be sustained if the matter demurred to supports the plaintiff's right to any relief The objection of the Statute of Limitations may be taken by demurrer when, as in the case of the 3 & 4 Will. 4, c. 27, the plaintitf"s title is extinguished after the lapse of twenty years {DawMns v. Lord Penrhyn, ante, p. 09) ; but where the statute only bai's the remedy, the defence must be pleaded, and a demurrer is not the proper course. {Waketee v. Davis, 25 W. R. GO.) A defence of the Statute of Frauds should be specially pleaded under Order XIX. r. 23, and not taken by demurrer. As to the practice and procedure on a demm*rer, see post, pp. 294— 21) G. COMMENCEMENTS, ETC., OF PLEADINGS. 91 COMMENCEMENTS AND TERMINATIONS OF PLEADINGS (a). Ordimry Form of Commonmneiit and Tcrmimitlon of a State- mnit of Claim. 187—. No. In the High Court of Justice, {Here add accordhuj to Queen's Bench (or Common Pleas the figure and ninnher or Exchequer) Division. on writ.'] Writ issued. \_HerefiU in date.'] Between Sir {h) John Jones . . Plaintift", and Edward Smith . . . Defendant. Statement of Claim. 1, 2, &c. \_Here insert the bod// of the i)Jeadin(j.] The plaintiff claims [the particular prii/er or claim follow^']. The plaintiflF proposes that this action should be tried hi London (or at the assizes to be liolden for the county of ) {c). Delivered ( and 5a, "every pleading above ten folios of seventy-two words each must be in print ; " below that it may be either in writing or print at the ojition of the ])arty. A plaintiff, unless he obtains an e.Kteiision of time, must deliver a statement of claim within six weeks after the defendant has entered his Ordinary form of commence- ments, &c.. of plead- OrrlerXIX. Pleadings to be delivered. When pleadings to be printed. Time for dcliverins 92 TIME FOR DELIVERING PLEADINGS. statement of claim. Rules as to cemj)iita- tion of time for delivering jileadings generally. Power of Court or judge to extend time. Effect of default of Ijlaintiff in delivering pleading within time. appearance (Order XXI. r. 1) : but it is not necessary that the plaintiff should deliver a statement of claim at all in cases where the defendant has intimated that he does not require one. Still in such a case the plaintiff may insist on delivering his statement of claim, but it is at his own risk so far as costs are concerned, for " where a plaintiff delivers a statement of claim without being required to do so, the Court or a judge may make such order as to the costs occasioned thereby as shall seem just, if it appears that the delivery of a statement of claim was unnecessary or improper." (Order XXI. r. 1.) The time within which pleadings must be delivered varies, it will be seen, with the different pleadings ; but in counting time the fol- lowing rules are common to statements of claim and defence, and to replies, viz., that "no jdeading shall be ... . delivered in the long vacation unless directed by a Court or a judge " (Order LVII. r. i) ; " and the time of the long vacation shall not be reckoned in the computation of the times appointed or allowed by these rules for delivering any pleading unless otherwise dii-ected by a Court or a judge." (Order LVII. r. 5.) Again by rule 2 of the same order. " where any limited time lexs than six d/ii/s from or after any date or event is appointed or allowed for doing any act or taking any proceeding, Sunday, Christmas Day, and Good Friday shall not be reckoned in the computation of such limited time." This rule will na doubt apply to pleadings in cases where an extension of time less than six days in duration in which to deliver a pleading has been granted by a Master in chambers. Unlimited power of extending the time is vested in the Court. The general rule upon the subject is rule (5 of Order LVII. " A Court or a judge shall have ])Ower to enlarge or abridge the time appointed by tliese rules or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may "reciuire, raid am/ such cyilargcmcnt may he ordered, although the application for the mme is not made iintil after thr expiration of thr time appointed or allowed;''' and by rule 22 of the Additional Rules of Court (August, 187.5) " as to applications to extend the time for taking any proceeding limited by Rules of Court (subject to any special order as to the costs of and occasioned by any such application) the costs of one application are, without special order, to be allowed as costs in the cause or matter, but (unless specially ordered) no costs are to be allowed of any further application to the party making the same as against any other party, or any estate or fund in which any other party is interested." The" effect of not pleading in due time, where no extension of time has beeii obtained, differs according as it is the plaintiff or the defendant who is in default in delivering a pleading. "If the plaintiff, being bound to deliver a statement of claim, does not deliver the same within the time, allowed for that purpose, the defendant may at the expiration of that time apply to the Court or a judge to dismiss the action with costs for want of prosecution ; and on the hearing of sueh application the Court or judge may. if no statement of claim have been delivered, order the action to be dismissed accordingly, or may make such other order on such terms as to the Court or judge shall seem just." (Order XXIX. r. 1.) This is where the i)laintiff has made default in delivering a xtaiement of elaUn, but if a statement of claim is duly delivered^ and the defendant duly delivers a defence, and then tlie l)laintiff makes default in delivering a reply, rule 12 of Order XXIX. applies. " If the plaintiff does not deliver a reply or demurrer . . . . vrithin the period allowed for that purpose, the pleadings shall be deemed to be closed at the expiration of that period, and the statement of fact in the pleading last delivered shall be deemed to be admitted." When it is the defendant that makes default in pleading, the cases must be distin- guished where the plaintiff's claim is for — {a) a debt or liquidated VENUE. 93 demand ; (b) detention of goods and pecuniary damages or either of them ; (c) the recovery of land ; {d) mesne profits, arrears of rent or damages for breach of contract indorsed upon a writ for the recovery of land ; (e) all other actions. In cases (a) and (r) the plaintiflE may sign final judgment with costs ; in cases (b) and (rZ), the plaintiff may enter an interlocutory judgment against the defendant, and a writ of inquiry shall issue to assess the value of the goods, or the amount of profits as the case may be ; in all other cases the plaintiff does not get judgment foi'th- with, but he may set down the action on motion for judgment, and such judgment shall be given as upon the statement of claim the Court shall consider the plaintiff to be entitled to. (Order XXIX. r. 10.; If there are several defendants, and some make default in pleading and others duly plead, the plaintiff may enter final judgment at once, and proceed to execution against those in default, or set down the action on motion for judgment against the defaulting defendants, according to the nature of the claim which the plaintiff has made in his writ. The pleader is referred for additional information on the whole subject of default in pleading to Griffith's Treatise under the Judicature Acts, 2nd edit., 295—802. (b) Where a party has any title or dignity, it ought to be given to him both in the writ and in the pleading, as the Duke of , the Marquis of , the Earl of , the Right Honourable , the Right Reverend Father in God , Lord Bishop of , Sir , Bart., Sir , Knight ; but this does not apply to special orders of knighthood or deco- rations, such as K.C.B., &c. A mere addition such as Mr. or Esquire is not given. {/■) The Judicature Acts make an important change in the law as to ventir or the place of trial. Previously all actions were divided into local and transitory. The former — all actions relating to laird, as eject- ment, trespass, &c. — could, unless by special order, only be tried in the county where the land was situated, and the plaintiff had therefore really no choice as to the place of trial ; but in the case of transitory actions it was otherwise. Here the plaintiff couldfix the venue himself, and thus an action for libel published in Westmoreland could be tried in London. Now this right of selecting the place of trial is given to the plaintiff in every class of case. This is done by Order XXXVI. r. 1, which pro- vides : " There shall be no local vcitiie for the trial of any action, V)ut when the plaintiff proposes to have the action tried elsewhere than in Middle- sex, he shall in his statement of claim name the county or place in wliich he proposes that the action shall be tried, and the action shall, unless a judge otherwise orders, be tried in the county or place so named. Where no place of trial is named in the statement of claim, the place of trial shall, unless a judge otherwise orders, be the county of Middlesex. Any order of a judge, as to such ))lace of trial, may be discharged or varied by a Divisional Court of the High Court." This I'ule is of the most sweep- ing character, and it has been construed as giving the plaintiff an abso- lute right to fix the place of trial subject to the defendant showing such a preponderance of convenience in trying elsewhere as to oust that right. (Per Denman J., Flitm v. Nontuinton Iron, ,^'v., Co., W. N. ]87«. 10.5; 20 S. J. 340.) {d) It is suggested that the practice should be uniformly followed of placing the statement as to the person by whom and the time at which the pleading is delivered at the end of it instead of dividing it as is fre- quently done, and stating at the top after the heading •' Statement of, &c.," that it is delivered by so-and-so, and at the end that it is " de- livered this day of, &c.," which necessitates a repetition of the statement of the delivery. Whether the whole statement should appear at the commencement or end of the pleading is entirely a matter of taste. But there is no justification for the division of it just indicated. Effect of default in case of defendant. Local venue abolished. 94 COMMENCEMENT, ETC., OF PLEADINGS. Ordinari/ Form of Commencement and Termination of State- ment of Defence (a). In the High Court of Justice, Queen's Bench (or Common Pleas or Exchequer) Division. Between John Jones 187—. No. [Here add accord mg ta the number and figure on the ivrit.'\ . Plaintiff, and Edward Smith and William Smith Statement of Defence. Defendants, 1. ( Here insert the paragraphs containing the hodg of 2, &c. I the pleading. Delivered (b) this day of 187 — , by - St., in the City of Messrs. Young and Turner, - London, agents for John Moon, Reigate, defendant's solicitor. (a) " Where a statement of claim is delivered to a defendant, he shall deliver his defence within eight days from the delivery of the statement of claim, or from the time limited for appearance, whichever shall be last, unless sxach time is extended by the Court or a judge." (Order XXII, r. 1.) See a»te, pp. i)2, 03, as to computation of time, power of Court or judge to extend the time, and effect of defendant making default in pleading. (b) See the observation luitc, p. 91, as to the propriety of following an uniform rule as to stating in one paragraph when and by whom the pleading is delivered ; and the suggestion that the proper place for this .statement is at the end of the pleading. COilMENCEMENT, ETC., OF PLEADINGS. 95 Ordinary Form of Commmmnent and Termimiion of a State- nient of Defence and Counter-claim. 187—. No. \_Here add according to the jiimider and figure on the writ.'\ 111 the High Coiu't of Justice, Queen's Bench (or Common Pleas or Exchequer) Di^•ision. Between 8ir John Fletcher, Bart, {a) PlaintiflF, and Edward Smith . . Defendant. (By original action.) And between Edward Smith . . PlaintiflF, and Sir John Fletcher, Bart. Defendant. (By counter-claim.) Statement of Defence and Counter-claim. ' \ Here insert hodij of statement of defence. And by way of counter-claim the defendant says : ( Here insert hodii of countcr-ctaim. 12. ) Delivered (h) this day of 187 — , 1) &c., &c. Ordinary form o£ coiumeuce- rnent, &c. , of defence and coun- ter-claim. (a) Sec ante, p. 03, as to giving titles or dignities to i)laintifl or defendant. (J>) Sec notes on preceding pages as to this portion of the pleading. 1)6 COMMENCEMENT, ETC., OF PLEADINGS. Form of Commnicnncnl and TerminaUon of a Stafement of Be' fence and Counter-claim, ivlicre additional Party or Parties added to the Counter-claim {a). Form •where defendant added to plaintiff on counter- claim. 187- No. Ill the High Court of Justice, Queen's Bench (or Common Pleas or Exchequer) Division. Between Sir John Jones '[Here add accord in ff to the numder and figure on the writ.'] Plaintiff, and Edward Smith . . . Defendant. (By original action.) And between Edward Smith . . Plaintiff, and The above-named Sir John Jones, and Henry Wood, John Harvey and John Jex . Defendants. (By counter-claim.) Statement of Defence and Counter-claim. > Here insert hody of statement of defeme. And by way of counter-claim the defendant says : \ Here insert hody of counter-claim. Delivered, &c., &c. Rule where third party added as defendant with i)lain- tiflfon counter- claim. («) "Where a defendant by his defence sets up any counter-claim which raises questions between himself and the plaintiff along with any other person or persons, he shall add to the title of his defence a further title similar to the title in a statement of complaint, setting forth the names of all the persons who, if such counterclaim were to be enforced by cross action, would be defendants to such cross action, and shall deliver his defence to such of them as are parties to the action within the period within which he is required to deliver it to the jilaintifE." (Order XXII. r. 5.) COMMENCEMENTS, ETC., OF PI.EADINGS. Ordinary Form of Commencement and Termination of a Reply (a) 187—. Xo. In the High Court of Justice, < Queen's Bench (or Common Pleas or Kxchequer) Division. Between Sir John Jones . . Plaintiff, and Edward Smith . , Defendant. Eeply. 97 ^ Here insert the lody of the pleadiny.'] Delivered the day of 18 — , l)y &c., &c. Form of Commencement and TcrmincUion of a Repty wJiere a Counter-claim has leen added. \H'i X.I In the High Court of Justice, Queen's Bench (or Conunon Pleas or. Exchequer) Division. Between Sir John Jones . . Plaintiff, and Edward Smith . . Defendant. (By original action.) And between Edward Smith . Phiintiff, " and Sir John Jones .... ])efendant. (By counter-claim.) The Reply y ^^^^^ purpose that his injuries were of a trivial and temporary fraud. nature, and that if they should afterwards turn out to be more serious than he then anticipated, he would still be in a position to obtain, and would obtain, further compensation fi'om the defendants in respect thereof. 2. The plaintiff, fully believing in the said representations and acting upon the faith thereof, was induced thereby to accept the said accord and satisfaction, and then accepted the same upon and subject to the express condition that he should not thereby exclude himself from fm-ther compensation from the defendants if his injuries should tm-n out to be more serious than he then anticipated. 3. x\fter the acceptance of the said accord and satisfaction, the injuries suffered by the plaintiff in the collision did tm-n out to be of a more serious natm'e than was anticipated by the plaintiff at the time of his accepting the accord and satisfaction aforesaid, and thereupon the plaintiff' coimnenced the present action against the defendants. («) Where a sum of monej' was paid in satisfaction of unliquidated damages and a discharge in full signed, it was held it would not be binding if it appeared that the plaintifE was not aware of the efEect of the jiaper he signed. (See cases cited in Lee v. Lancashire ,f Yorkshire Railw, C<> , L. It. G Ch. 537.) ACCOUNT STATED 107 Aecovint Stated (a). Claim iqmi an Acrounf Stated. 1. During the months of Februaiy, i\Iarch, and April, 1877, Claim on the plaintiff supplied to the defendants various quantities of stotT.L '"^ gi-oceries, and the defendants supplied to the plaintiff several tons of coal ; and invoices and accounts were dehvered between the parties with reference to the said groceries and coal. 2. On the 28th of April, 1877, the plaintiff and the defendant went through the items of the accounts aforesaid, and an account was thereupon stated between the parties showing a balance of £32 to be due and owing by the defendant to the plaintiff. 3. The defendant has not paid the same. The plaintiff claims — Atwtherform of Claim on Account Stated. 1. Between the 1st of January and the 28th of February, Another 1875, the plaintiff supplied to the defendant various articles of ^n "ccount drapeiy ; and accounts and invoices of the goods so supplied, stated. and their prices, were from time to time fiu-nished to the defendant, and payments on account were from time to tune made by the defendant. 2. On the 28th of February, 1875, a balance remained due {a) The action on an account stated applies to the case where there What an have been various dealings Ijctween the parties, and finally a balance is account struck, and so much found to be due from the one to the other. Wiien stated is. this balance is agreed on, an account is said to be stated, and upon it an action can be founded. The account must have been stated to the creditor himself or his agent, and it is not sufficient if made to a stranger. {Tuclicr v. Ihirron', 7 B.& C. G23) ; but it is not necessary that the state- Need not ment should be in writing : it may be by word of mouth. (Singleton v. be in Barrett, 2 C. & J. 3G8). An account stated is not conclusive in tlie sense writing, that the parties may never go into the items which make it up. {T/iomtt.f V. Ilawh'S, 8 M. & W. 140.) On the contrary it has been held that it may be shown that an item thcicin is not a good debt for want of considci-ation (French v. French, 2 M. & G. 044) ; or generally the defendant may show Not con- that the account was stated under a mistake, or that certain items were elusive miscalculated orfounded on error, provided the correctionisproniptly made as to the before the other party has innocently acted upon the faith of the correct- items that ness of the account, and altered his previous position, so as to render it jn^ke it up. inequitable to call ujjon him to refund the money. (See Addison on Contracts, 7th edit., pp. 10/2—3). But it is no objection to an item that has been allowed in an account stated that it arose upon a contract, which was bad for want of writing within the Statute of Frauds. (Cockiiu/ v. Ward. 1 C. B. 858.) An infant cannot state an account. (Triicman v. lliirst, 1 T. 11. 40.) 108 AGENTS. Action ou account stated. to tlie ]ilaintiflF of £75 Os., and an account was on that day sent by the plaintiff to the defendant showing that balance. 3. On the 1st of March following, the i^laintiflF's collector saw the defendant at his house, and asked for payment of the said balance, and the defendant then paid Mm by cheque £25 on account of the same. The residue of the said balance, amomiting to £50 ds., has never been paid (a). The plaintiff" claims £ . Administrators. See Executors and Administrators. Against agent for selling Agents {h). Action against Agent for setting on Credit against Instructions,, and at lower Price than directed. 1 . The plaintiff" is a colliery proprietor at , and he has various agents for the sale of his coal in different towns in the north of Eng-land. {.) Such ftirther or other relief as the nature of the case requires. Action against a Ruihcay ComjKimj for an assault commiffpcl hj their Servants. 1. The plaintiff is a , canying on business at No. — , Court, in the City of London. 2. On the 4th of May, 1877, the plaintiff was lawfully on the premises of the defendants at their terminus at Euston Square, and was in the act of entering one of their carriages attached to a train about to start for Rugby, with a ticket which he had a few minutes before purchased at their booking- office, when a servant of the defendants seized him in a violent manner, and prevented him from entering the said carriage. i{. The plaintiff remonstrated against this conduct, when he Assault was seized by several servants of the defendants, and violently f°™' removed from and ejected out of tlieir premises, and was servants severely struck and beaten by the said servants while he was being so removed and ejected. 4. By reason of his having been seized and prevented from proceeding on his journey to Rugby as aforesaid, the plaintiff ttctl •ail way 128 ASSAULT AND BATTERY. Assault lost tlic benefit of a lucrative and profitaljlc contract, which committed ]jg ^yould havc SGcurcd had he not been so prevented as liy railway , . _ servants. aioresaid. 5. By reason of the removal and ejection of the plaintiff fi'om tlic defendants' premises as mentioned in the 3rd para- gi-aph, and the assaults and beatings inflicted on him as aforesaid, the plaintiff was seriously hurt, damaged, and bruised, and he suffered great pain and anguish of body and mind, and his reputation and position were injured by reason of the affronts and indignities to which he was thus subjected. (3. The plaintiff also lost the price paid by him for the said railway ticket. The plaintiff clauns : — (1.) £130 damages for loss of the contract, as mentioned in the 4th paragTaph. (2.) £100 damages for the personal injuries referred to in the 5th paragraph. (3.) £2 10s., the price of the said railway ticket. Statement of Defence. 1. The defendants deny that the plaintiff was lawfully on their premises as alleged in the 2nd paragraph of the state- ment of claim, and that he purchased a ticket as therein is alleged. 2. Assuming that the plaintiff had purchased such ticket, the defendants say that at the time of their servant seizing the plaintiff as alleged in the said paragraph, the train therein referred to was in motion, and proceeding on the journey, and the defendants' servant, acting in accordance mth their bye-laws in that behalf, forcibly but without im- necessary violence, prevented the plaintiff from attempting to enter the said carriage after the said train began to move. Removal by 3. As to the allegations in the 3rd paragraph of the state- reason of j^gj^^ ^-jI? claim, the defendants say, that before and at the disorderly ' , . ■ i i conduct. time of the removal and ejection therein mentioned, the plaintiff was behaving in a violent and disorderly manner, and was apparently under the influence ol drink, and it was the duty of the defendants and their servants to remove and eject him from their said premises. ASSAULT AND BATTEEY. 129 I 4. As to the assaults and beatings referred to in the said 8rd paragraph, the defendants deny that their said servants so beat and assaulted the plaintiff, and say that they only used so much force as and no more than was necessary for the pm-pose of so removing and ejecting the plaintiff from the premises. Assault hij a Schoolmaster upon a Pupil. 1. The plaintiff is an infant. Assault by 2. The defendant is head master of the H. Grammar- l^^^^^f' school. "Pon a 3. During the month of January, 1874, the plaintiff was a ^'^^^^' pupil at the said school, and on the 15th of January aforesaid, the defendant made a violent assault upon the plaintiff, and severely beat him about the face and head and back with a thick stick. 4. In consequence of the premises, the plaintiff was much bruised and injured, and was for several weeks sick and ill, and confined to his bed, and endured much pain and suffering. The plaintiff claims £200 damages. Statement of Defence. 1. The defendant is not the head master of the H. Grammar- Defence of school. At all times material to this pleading, he was and ^.f^^^^^ . still is head master of the English department in the said ment for school. ^^^^°'^- duct. 2. On the said 15th of January, 1874, the plaintiff was a pupil under the defendant's charge and control, and while under such charge and control, he was guilty of gross impertinence towards the defendant, and of such insubordination as rendered it necessary for the preservation of the discipline of the school that the plaintiff should be punished. 3. Thereupon, the defendant moderately, and using no more Lawful violence than was necessary, chastised the plaintiff with a birch rod, which is the gi'ievance complained of. 4. Save as aforesaid, the defendant denies each and every the allegations contained in the 3rd paragraph of the statement of claim. 5. The defendant does not admit the 4th paragraph thereof. chastise- ment. 130 ASSAULT AND BATTERY. Indecently assaulting a female prisoner by con- stable ami surceon. Action for Indecently Assaulting a Female. The plaintiflF is a single woman, residing at, &c. constable of the doctor of medi- 1- . 2. The defendant E. C. is the chief I)orongh of F, ; and the defendant E. "W. is a cine jn-actising at F. aforesaid. 3. On the 11th of June, 187G, the plaintiff was arrested on a warrant, on a charge of concealing the birth of her infant child, and was conveyed to the F. prison. 4. On the same day, the defendant E. W., acting by the orders and directions of the defendant E. C, indecently assaulted the plaintiff, and against her vrHW. made an examina- tion of her person, with the professed object of ascertaining whether she had recently been dehvered of a child. The plaintiff claims £100 damages. State- ments OF Defence. Defence of the Defendant E. C. 1. This defendant denies that the defendant E. W. made an indecent or any assault upon the plaintiff as alleged, or otherwise. 2. This defendant further says that if the defendant E. W, did make an indecent assault upon the plaintiff, the said E. W. did not act by the orders and directions of the defendant, but contrary thereto. Defence, that exami- nation at request of j)laintiff. Defence of the Defendant E. W. This defendant denies the allegations contained in the 4th paragraph of the statement of claim. He says that, on the 11th of June, 1876, he visited the F. prison to see the plaintiff at her express wish, and she then requested him to make an examination of her person in order that he might be able at her trial to give evidence in her favom- ; and this defendant thereupon, with the plaintiff"s consent and not otherwise, made the said examination, which is the grievance complained of. AVERAGE. 131 Assignee. See Chose in Action — Banknqjt. Attorney. See Solicito7\ Average. Action against Shi^wwner for not iireimring a proper Average Statement, wlierely Vie Plaintiff tost the Value of Goods that had been Jettisoned. 1. The defendants are o^^^lers of the "A.," which sailed Against from C. for L. on the 24th June, 1873, carryinff a general shipowner • 11- 1 ,. -11 . „ for not cargo, including the case of musk hereinafter mentioned, of preparing the value of £183 7.9. Gd. P^op^'" 2. The plaintiffs were indorsees of the bill of lading and statement, owners of the said case of musk, which was consigned to them by the shippers, Messrs. G. & Co., of Calcutta. 3. The "A." while in the Red Sea was in imminent danger of being lost through perils of the sea, and it became necessary to jettison the said case of musk and other cargo, and the same was thereupon jettisoned in order to preserve the vessel, her cargo, and the whole adventure from imminent danger. A general average loss was thereby incurred in respect of which general average contril)ution became due to the plaintiffs from the defendants, and Irom the owners of the residue of the cargo. 4. The defendants, as owners of the " A.," agreed with the plaintiffs, for sufficient consideration in that behalf, and it K 2 132 AVERAGE. Against shipowner for not preparing ;i proijer average statement. became and was their duty, as owners of the "A.," in con- formity with usage, to give notice to the plaintiff's or the ship- pers of the said case of musk of the said jettison, and to collect the said general average contribution, and to detain the cargo in respect of which the same became payable until the same should be paid ; also to pay the said contribution over to the plaintiffs when collected, and to cause to be prepared a proper and careful average statement, and furnish the same to the jDlaintifl^s. 5. The defendants did not prepare such careful and proper average statement, nor furnish the same to the plaintiffs, nor did they give notice to the plaintiffs or the said shippers that the said case had been jettisoned, nor did they collect the average contribution due to the plaintiff's, nor detain the cargo in respect of which the same became payable, nor pay the said contribution over to the plaintiff's, nor any part thereof. 6. By reason of the premises the plaintiff's remained ignorant that the said case of musk had been jettisoned as aforesaid, and lost the said general average contribution. The plaintiff's claim : — £183 7s. Qd. in respect of the premises, with interest from the 24th November, 1874, at £5 per cent, per annum. Action, for average on Sale of wrecked Cargo, Action for 1 . The plaintiff is a merchant, carrying on business in average. London. The defendant is a shipowner, carrying on business at , in Gei'many. 2. In the month of June, 1876, the plaintiff" shipped on board the defendant's ship, the " H.," in London, certain goods, consisting of tin, iron, and other things, to be carried to East London. The said ship, with the said goods on board, was subsequently wrecked at East London, and the \\Teck and such of the cargo as was saved, including the plaintiff's said cargo, was sold by auction by the direction of the master, and the defendant subsequently received the pro- ceeds of the said sale, amounting to £ , on account of the persons entitled thereto. 3. The average statement was afterwards duly prepared, under the direction of the jjlaiutiff" or his agents, by which the AWARD. 133 amounts due to the several persons whose property had been Action for sold as aforesaid, in respect of the proceeds thereof, were average. ascertained, and the said sum of £2000 was apportioned to and among the said persons accordingly, and by the said average statement, the sum of £100, part of the said amount of £2000, was ascertained to be due to and was apportioned to the plaintiff, in respect of his aforesaid goods, and the said sum was and is in fact due to him as the proceeds of the said goods, and the defendant has reserved the said sum to his use. 4. The plaintiff has applied to the defendant for payment of the said sum, but the defendant has not paid the same. The plaintiff claims : — £100, and interest thereon from the commencement of this action until payment. Award («). Action iqwti an Award. 1. In or about the month of October, 1874, the defendants of dlh^'in were, under the power and authority of a certain Act of action on ' ^ an award. {a) An award can be enforced by bringing an action upon it. The plaintiif must then aver in his statement of claim the submission to arbi- tration, the making of the award within the time limited, its effect, the fulfilment of all conditions precedent by him, and the failure of the defendant to pay the sum awarded or to otherwise comply with the terms of the award. It can scarcely be said to be a violation of Order XIX. r. 24, to set out the award in full in the statement of claim ; but it is sub- mitted that it is not generally necessary to set out the submission at length. If the time for making the award has been enlarged, and the award made within the enlarged time, the plaintifE must show that the enlargement was duly made according to the terms of the submission, or by the consent of the parties or under the powers granted by the statute 3 & 4 Wm. 4, c. 42, s. 39, or the C. L. P. Act, 18.54, s. 15 ; In re Dare Valh-y Ilaihvay Co.. L. R. 4 Ch. .554 ; Benton v. Strong, L. R. 9 Q. B. 117. Any irregularity as to the enlargement of the time is cured by the parties appearing before the arbitrator, but not though they take part in the reference if they protested against the irregularity {Ilingland v. Lowndes, 17 C. B. N. S. 514 ; L. J. 33 C. P. 337) ; neither is the objec- tion waived by appearance if it goes to the jurisdiction of the arbitrator over the subject-matter. {Danes v. Price, L. J. 34 Q. B. 8.) Corruption or misconduct of the arbitrator is no defence, at least where application might have been successfully made to the Court to set the award aside. {Grazebronk v. Dacix, 5 B. & C. 534 ; WMtmore v. Smith, 7 H. & N. 50S) ; L. J. 41 Ex. 107.) It is misconduct of the arbitr.ators within the mean- ing of this rule not to hear one of the parties, and therefore not a good defence to an action on the award, but a ground for applying to have the award set aside, ('fhornbvrn v. Barnes, L. R. 2 C. P. 384.) It is no defence that the decision of the arbitrator has proceeded on a mistake. How award enforced. Averment in claim. Irregulari- ties in relation to the award. Misconduct of the arbi- trator. 134 AWARD. Statement of claim in action on an award. rarliameiit made in that behalf, constracting a raihvay through certain lands, the property of the plaintiff's company, and a dispute arose between the plaintiff's company and the de- i'endant as to the amount of compensation to be paid by the defendants to the plaintiff's company in respect of the injury done to the said lands by the construction of the said railway. 2. By an agreement dated the 10th October, 1874, it was agreed by and between the plaintiff, acting on behalf of the said Y. Iron Company, and the defendants, that the question of the amount of the said compensation should be referred to the arbitration of one W. A., of C, in the county of G., civil engineer, and by the said agi-eement the said plaintiff' and defendants mutually agreed to abide by the award of the said W. A. 3. The said W. A. took upon himself the said reference, and the time for making his award in the premises having been duly enlarged until the 1st of January, 1875, and afterwards until the 10th of April, 1875, did, before that day, make and publish his award in writing respecting the matters referred, ready to be delivered to the said parties, and thereby recited and awarded as follows : — [Here follows the award at full length.] 4. The plaintiff's costs of the said arbitration were after- wards taxed at £590. 5. All conditions have been fulfilled, and all things have happened, and all times have elapsed necessaiy to entitle the plaintiff to be paid the said sums so awarded as aforesaid, and the said £590 ; yet the defendants did not pay to the plaintiff the said sums, or any of them, or any part thereof, and they still remain due and unsatisfied. The plaintiff claims £3000. Law as to awards not affected by Judica- ture Acts. {Johnson v. Dunint, 2 B. & Ad. 92.5) ; but it is a defence that the award is not conformable to the submission. The Judicature Acts have not affected the law in any way as to arbi- trators and awards. Parties can still refer their disputes to arbitration and the award can be enforced in the same way as before. {Re an Arbitration het/vrcn Bohcrt Fliillips and John Brook Gill. 45 L. J. Q. B. C. P. & Ex. D. 1.S6.) What the Acts have done is to establish several subordinate judicial officers called "official referees,' to whom certain classes of cases are referred ; but their functions are merely to report to the Court certain findings, and they can in no sense be regarded as arbitrators, nor their judgments as awards. BAIL. 135 Bail (a). Action on Recognizance against Bailors. 1. The plaintiff is a general merchant, canying on business ^f^^^JJ^J in the City of London, and on the 1st of Januaiy last he com- zance of menced an action against one , to recover the amount of ^^^i^- £100 on a promissory note of which he was, at the com- mencement of such action, the holder for a valuable con- sideration. 2. Shortly after the commencement of such action, namely, on the 10th of January, he caused the said to be an-ested on a writ of ccqyias ad respondendum, which was issued on the usual evidence. 3. On the loth of the same month the defendant duly and in regular form became bail for the said , and bound himself by his recognizance to be answerable for the amount of any judgment for debt and costs, or either, which should be recovered in the said action against the said , should the said not pay the same. 4. On the 2nd of March last the plaintiff obtained judgment in the said action for the sum of £150 for debt and costs. 5. The said has not paid such debt and costs, and the plaintiff has not obtained any execution or satisfaction of the said judgment, and the same remain wholly due and impaid and unsatisfied. 6. The defendant has not paid the said amount, or any part thereof, and the said recognizance still remains in force. The plaintiff claims as follows : — (rt) The liability of a defendant to be held to bail or arrested on a Ai-j-gst on eajjias ad re^poiidendxim where the debt is £20 or over, and there is reason ,.((r,(«s not to believe that the defendant is about to quit the jurisdiction, has not abolislied. been affected by the Act which abolished imprisonment for debt. 136 BAILMENTS. Action for injury to liorse and cart by hirer. What is a bailment. Liability of a hirer of chattels. Of a bor- rower of chattels. Bailments (a). Action for Misusing a Horse and Dog-cart hired hy the Defendant 1. On the 19th September, 1875, the defendant, who resides at M., in the county of C, hired from the plaintiff, who is a cab (fl.) A bailment is constituted l^y the delivery or transfer of a chattel from one person to another, in order that something may be done with it, either for the benefit of the owner or of the party who receives it as the temporary possessor, or for the mutual benefit of both of them, and the word is applied to contracts for the letting and hiring of chattels, as well as to contracts for the delivery of them to persons for safe custody, or to workmen to be worked upon or dealt with in the course of their employment. lAability of hirer of chattels.] — The hirer of a chattel is bound to use it in a proper and reasonable manner, to take the same oare of it that a prudent and cautious man ordinarily takes of his own property, and to return it to the bailor at the time appointed for its return, or within a reasonable i)eriod after request, if no such time has been fixed, in as good condition as it was at the commencement of the bailment, subject only to the deterioration produced by ordinary wear and tear and reasonable use, and by injuries caused by accidents which have happened without any default or neglect on the part of the hirer. If the chattel is secretly stolen, the hirer is liable, unless he proves that he took such precautions for its safety as a prudent man ordinarily takes. In case of robbery, the hirer must show that it was taken by force. If the chattel is destroyed by fire or perishes, the hirer is not liable if he has not been guilty of neglect or want of due care. (Taylor V. Caldwell, S2 L. J. Q. B. 164. ) A hirer of a ship for a particular voyage will not be liable for her loss in a storm unless he has deviated from the ordinary course, and needlessly encountered risks not contemplated by the owner at the time of the hiring. Whenever a chattel bailed to a hu-er has sustained a partial injury through an inherent defect in the article itself, or by reason of some inevitable accident, which threatens its total and immediate destruction, and the eflEects of such partial injury may be obviated, and the chattel preserved for future use by repairs promptly provided, there is an implied authority from the owner to tlie hirer to order the necessary repairs, and incur the necessary expense. (See Addison, Contr., 7th ed. 619, 620.) lAability of gratniiovs borrower of chattels.'] — There are two kinds of gratuitous loan of chattels, viz., thew?<^?/?/OT. or loan of things which are consumed in the use, or the use of which puts it out of the borrower's possession, such as wine or corn, and the commodatvm or loan of a chattel which is not destroyed by the use, such as a horse or carriage. In the former case the liability is to return an equivalent in value or quality. In the latter, viz., the commodatmn, the boiTower is bound to return the chattel in as good a condition as when it was borrowed, subject only tO' the deterioration resulting from inherent defects or produced by ordinary wear and tear, and the reasonable use of it for the purpose for which it was known to be required. But the borrower is bound to the strictest care and diligence to keep the goods so as to restore them back again to the lender, and if guilty of the least neglect, will be liable for injury or loss. ( Coggs V. Bernard, 1 Sm. L. C. 188, 6th ed. ) He is bound to that degree of care and diligence which the most prndent man exercises with regard to his own property. But he cannot be made liable for inevitable accidents or casualties he could not have foreseen, and which no human prudence BAILMENTS. 137 proprietor at M., and licensed to let horses and rehiclesfor hire, Misusing a a mare and dog-cart, for the purpose of carrying himself and ^^°^^ ^'^^ one other person from M. to C. and back ; and it was expressly agreed that the defendant and one other person only should be carried on any part of the journey in the said dog-cart, and that the mare should be driven from M. to C. and back, and not elsewhere. 2. The defendant, in violation of the aforesaid conditions carried, on the return jom-ney, three other persons besides himself in the dog-cart, and also drove the mare a greater distance than from M. to C. and back, namely to B., which is four miles beyond C, and then back to M. a pawn- broker. could have guarded against. K a horse is put into his stable by the borrower and is stolen therefrom, the borrower is not liable, unless he or his servant has left the door of the stable open. {Coggs v. Barnard, 2 Ld. Raym. 91G ; Doctor and Student, Dialogue 2, ch. 38.) If a person use a thing lent to him for another purpose than he stated to the lender when borrowing it, then he will be liable for an injury or accident to it while so used, even without the least neglect. If a horse is lent for an ordinary journey, if the borrower travel by bye-ways dangerous to the horse's footing, he is liable in the event of accident (ib.) ; but if a horse is lent to a person to ride it at a hunt, the borrower is not liable for an accident to it while being ridden at the hunt after the usual fashion, as the risks must have been in the contemplation of the lender. {Williams v. Jones, 33 L. J. Ex. 297.) LiahUity of j)an'nhroTu-r.~\ — If the chattels pawned be such as will be Liabilitv of deteriorated by wear, the pawnee may not wear them ; but if not such as are damaged by wearing, as jewellery, the pawnee may wear them subject to liability, if they are stolen or robbed from his or her person, whereas he would not be liable if stolen from the proper place for depositing such things for safe custody. The pawnee is bound to use ordinary diligence (the media diUgentia of the Roman law); and if he uses such diligence he is not liable in the event of loss or injury, and may claim the amount of the advance from the pawner. {Donald v. Suckling, L. R. 1 Q. B. 585.) If, however, the principal and interest are tendered to the pawn- broker and he docs not deliver them, he then becomes absolutely liable in the event of loss or injury, apart from any question of negligence, as he became a wrongdoer by detaining them. {Matighan v. SliarjJc, 34 L. J. C. r. 19.) lAuhility of gratiiitou.i mandatory.'] — The mandatory is lia])]c for damage caused by his neglect, after he has undertaken to do something to goods and entered on the doing of it. (See Coggs v. Bernard, 1 Hm. L. C. 6th ed. 188.) But he is not responsible for neglecting to do what he has merely undertaken to do. (ii.) Liability of paid mandatory.'] — Paid mandatories are divided into two classes, viz., 1. Tho.se exercising a public employment in virtue of which they receive the chattel, such as common carriers, hoymen. Sec, as to whom the law is that they arc liable at all events, being insurers. (See post, 2.'>4.) 2. Private persons to whom the thing is delivered to h.ave it carried or something else done with it. These mandatories arc bound to use the best diligence they can, and are not liable should the chattel be stolen, lost, or injured notwithstanding. Of a gra- tuitous mandatory. Of a paid mandatory. 138 BAILMENTS. llisusiug a horse and cart. ?>. Tlie defendant also, instead of using due care and diligence in driving the said mare at a reasonable pace, as it was his duty to do, drove her furiously, carelessly, and negligently, and beat her and otherwise ill-treated her, and likewise caused great damage to be done to the dog-cart. 4. The injuries to the mare and dog-cart by reason of the negligence, misuser, and improper conduct of the defendant on the said 19 th September, were so great that the plaintiff was obliged to have the mare destroyed on the 18th October, 187§, and incurred gi-eat expense in and about repairing the dog-cart. The plaintiff claims £300. Action for injury to furniture by lodger. Injury to Goods in Furnished Apartments hy Lodger. 1. The plaintiff is a lodging-house keeper at Street, B. The defendant is a medical student. 2. On the 10th of May, 1876, the plaintiff let to the defend- ant, and the defendant hired from the plaintiff, a suite of three furnished rooms, at Street, B., aforesaid, at a weekly rent of 30s. 3. On the 15th of May, 187G, the defendant entered into the occupation of the said furnished rooms, and continued in the occupancy of the same until the 10th of November, 187 G. 4. During his occupancy of the said rooms the defendant broke and destroyed several valuable articles of furniture in the same, and gi'eatly injured and damaged other articles. Particulars have been delivered to the defendant of the destruc- tion and damage committed by him. 5. When the defendant left, on the 10th of November, 1876, two weeks' rent was due and in arrears, and the defendant has not since paid the same. The plaintiff claims : — (1.) £50 damages. (2.) £3 arrears of rent. Defence and coun- ter-claim. Statement of Defence and Counter-claim. 1 . The defendant denies the 4th paragraph of the statement of claim. 2. As to the 5th paragi-aph of the statement of claim, the defendant denies that when he left, on the 10th of November, BAILMENTS. I39 187G, two weeks' rent was due aud in arrear as allegx'd. He injury to admits that one week's rent was due at the time. goo^i.^ in And by way of set-off and counter-claim, the defendant lodgings. says : — Counter- 1. That it was a term of the agreement hj which the defend- "^ '^'™" ant hired the furnished rooms mentioned in the ^nd paragraph of the statement of claim, that he should receive a fortnight's notice from the plaintiff' before he should be required to give up possession of the same. 2. The plaintiff" did not give him a fortnight's notice, but on the 10th of Xovember, 187G, refused to give him admittance into the said furnished rooms, and the defendant was thereby put to great inconvenience and expense in procuring other suitable apartments. 3. On the said 10th of November, 187G, there were m the said furnished rooms at Street, B., two boxes containing wear- ing apparel and other articles, a number of valuable books, and a case of surgical instruments, all the property of the defendant. 4. The plaintiff detains the said boxes and books and the said case of instruments, and though possession has been de- manded by the defendant, she refuses to give up the same. The defendant claims : — (1.) £50 damages for the grievance mentioned in the 2nd paragi-aph of the counter-claim. (2.) A return of the goods mentioned in the 3rd paragraph of the counter-claim, and damages for their detention. 1. The plaintiff joins issue on the defendant's statement of Reply. defence, except in so far as it admits the statement of claim. 2. As to the 1st paragraph of the counter-claim, the plaintiff' says that on the 3rd of November, 1876, she gave the defendant due notice to leave the said furnished rooms at the end of a fortnight, whereupon the defendant expressed his readiness to go at a week's notice ; and it was then agreed between the plaintiff' and the defendant, and before breach of the agreement mentioned in the 1st paragraph of the counter-claim, that the defendant's tenancy of the said furnished rooms should determine on the 10th of November next ensuin and although the plaintiffs instructed the defendants to pack the said goods in original wrappers, the defendants did not use reasonable care and diligence in and about packing the said silk, and negligently and improperly packed the said goods in bags which were unfit for that purpose, and not in original "wrappers, and allowed the same to be forwarded therein to Lyons, whereby the plaintiffs incurred the loss and expenses in the last paragraph mentioned. 5. The plaintiffs further say that, at the request of the de- fendants, the plaintiff's caused the said silk to be returned to London, and the defendants, in consideration that the plain- tiffs should forbear from suing them for their breaches of con- tract aforesaid, agreed with the plaintiffs to take over and purchase fi'om the plaintiffs the said silk, and to pay to the plaintiff's the price agreed to be paid by the purchasers thereof at Lyons to the plaintiff's for the same, and to indemnify the plaintiff's against all losses sustained by them as aforesaid. 6. The defendants, however, have failed to take over the said silk and pay to the plaintiff's the agreed price or any part thereof, and have refused and still refuse to indemnify the plaintiffs against the losses aforesaid in accordance with their contract in that behalf, and the plaintiff's were compelled to sell the silk at a great loss, and by reason of the defendants' breaches of contract in this paragraph mentioned, the plaintiff's have been compelled to bear and pay, and have sustained the losses and expenses hereinbefore mentioned. 7. Particulars of the plaintiff's' claim have been furnished by the plaintiffs to the defendants, but they have not paid the same. The plaintiff's claim £2000 damages. BAILMENTS. Statement of Defence. 145 1. On the 10th October, 1875, the plaintiffs requested the Negligent defendants, and the defendants undertook, to pack in original dealing wrappers thirteen bales of China raw silk, then lying in Hes- by a sian bags in the defendants' C. Street warehouse, but not bailee. fourteen bales as alleged in the statement of claim. One of ^^^e^^^- the fourteen bales which are mentioned in the statement of claim had been previously, viz., on the 2Gth September, 1876, delivered to the plaintiffs packed in a Hessian bag, and no order had ever been received by the defendants to pack it in an original wrapper. The said thirteen bales of silk were to be packed in original ^Tappers for delivery at the C. Street warehouse as aforesaid. 2. The defendants admit that they did not pack the said thirteen bales of silk in original -oTappers, and that they delivered the said thirteen bales of silk packed in the Hessian bags in which they were. 3. The defendants had not notice, and they do not admit that the said thirteen bales of silk were to be packed in original ^Tappers for the pm-pose of forwarding the same to Lyons, in France, in fulfilment of a contract made by the plaintiffs for the sale of the said fourteen bales of silk, and the defendants do not admit that such contract was in fact made. 4. On or al)out the 28th of December, 1875, the plaintiffs, by their indorsement on a delivery order directed to the super- intendent of the defendants' C. Street warehouse, requu-ed the defendants to deliver the said thu'teen bales of silk to Messrs. N. H, & Co., and the defendants accordingly delivered the said thirteen bales of silk to Messrs. N. H. & Co.'s van at the said • warehouse of the defendants. 5. Except so far as the same are herein admitted, the defendants deny the allegations contained in paragi-aphs 3 and 4 of the statement of claim, and eveiy part thereof respectively. 6. The defendants did not request the plaintiffs to cause the said silk to be returned to London, and the defendants did not agree with the plaintiffs to take over and purchase from the plaintiffs the said silk, or to pay the plaintiffs the price agreed to be paid by the purchasers thereof at Lyons to the plaintiffs 146 BANKERS. Negligent dealing with goods by a bailee. Payment into Court. for tlic same, or to indemnify the ijlaintilfs against the said losses. 7. Except that the defendants liavc not in fact taken over the said silk, or paid to the plaintilis anything in respect of the price thereof, or indemnified the plaintiffs against any losses, the defendants deny the allegations contained in para- graph G of the statement of claim, and every part thereof re- spectively. 8. The defendants fnrther say that they have paid the sum of £21 into Court in respect of the plaintiffs' claim in respect of the cause of action herein admitted, and say that the said sum is enough to satisfy the plaintiffs' claim in respect of the matters in respect of which the same has been paid into Court. Bankers dishonour- ing a cus- tomer's cheque. Bankers («). Action against Bankers for Dishonouring a Customer'' s Cheque. 1. The plaintiff is a solicitor, carrying on business at No. — , Street, in the City of London ; and the defendants are bankers, carrying on business in Lombard Street, in the said City. Liability of a banker dishonour- ing cus- tomer's cheque. Branch banks. (rt) If a banker refuses to pay a cheque drawn upon him by a trader, who keeps an account with him, and who has sufficient assets in the hands of the banker to meet the cheque at the time it is presented for payment, the trader is entitled to recover substantial damages without proof of actual damage, as the dishonouring of a cheque is likely to be very in- jurious to the credit of persons in trade, {llol'ui v. Steward, 23 L. J. C. P. 148.) It has been held that the different banks of a banking company are, as regards their separate customers, separate companies, so that a customer who keeps an account with one branch has no right to draw cheques on, and have them cashed by another branch. ( Woodland v. Fear, 26 L. J. Q. B. 202.) Therefore where A. received payment for a cheque drawn on branch C. at ]>ranch D. , and the cashier paying at the latter did not know, as was the fact, that the account of the drawer of the cheque was overdrawn at branch C, it was held that A. must refund the amount of the cheque. (S.C.) But if a banker pays the cheque a/ a cugfomer erro- neously supposing that he had funds, he cannot recover the amount from the person to whom the cheque is paid. {Chamhers v. Miller, 32 L. J. C. P. 30.) For some purposes, however, it would seem that branch banks are not regarded as distinct. Thus where a customer had an account with two branches of a bank, it was held that in the absence of any special agreement with their customer, the bank had a right to consider the two accounts as one, and to refuse the customer's cheque, when on BANKEKS. 147 2. In the year 1870 the plaintiff opened a current account the defendant's bank, upon which he from time to time operated by means of cheques di'awn on printed forms issued by the defendants. 3. On the 18th of May, 1877, and throughout all that day, there was standing to the plaintiff's credit in the defendants' hands the sum of £300. 4. On the said 18 th of May a cheque for £100, dl•a^vn by the plaintiflF in favour of Messrs. W. & L., payable to their order, and dated the 17th of May, 1877, was duly presented for payment at the defendants' bank. 5. The defendants' cashier, however, refused to pay the said cheque, and retm-ned the same to the agent of the said Messrs. "W. & L., with the words " JSTo assets " Avi-itten on the face thereof by such cashier. 6. In consequence of the premises the plaintiflF has been seriously injured in his credit and reputation as a solicitor and otherwise, and has been subjected to great annoyance, or has endured pain and anguish of mind. The plaintiff claims : (1.) £1,000 damages. (2.) Such fiu'ther and other rehef as the natm-e of the case may require. Bankers dishonour- ing a cus- tomer's clieque. adding the two accounts together the balance was against him. {Gar- nctt V. JPJLewan, L. II. 8 Ex. 10.) Where a customer pays into liis bankers a sum of money to meet a bill, and the bankers undertake to apply the money to the payment of the particular bill, but afterwards fail to do so, and dishonour the bill when presented to them, the customer may, but the holder of the dis- honoured bill may not have an action against them. {3Ioore v. Bashell, 27 L. J. Ex. 8.) It has been suggested that in such a case the holder of the bill would have a remedy in etjuity as a matter of trust. (Story's Equity Jurisprudence, vol. 2, pp. 288 to 2',il ; but see the decision of Malins, V.-C, contra, in Ilill v. Iloi/dn, L. K. 8 Eq. 290.) If a banker pays a forged cheque he will generally have to bear the loss himself ; and if he pays a cheque which has been fraudulently altered in amount he will have to suffer, unless the drawer has by his gross fault facilitated the commission of the fraud. (Byles on Bills, 12th cd., p. 38().) This is the general rule, but by the IG & 17 Vict. c. o'J, 8. 11, if a draft or order (which includes a chc(iue) drawn upon a banker for a sum payable to order or demand, when presented for payment, jjnrjwrts to be indorsed by the person to whom the same is drawn pay- able, that is a sufficient authority to the banker to pay the amount to the bearer, although the signature indorsed ho in fact a forgery. But this enactment does not protect any other person than the banker on whom the draft or order is drawn ; it does not protect any third banker who cashes it on the faith of the indorsement. (See O'jdoi v. Uciias, L. B. y C. r. yl3.) L 2 As to right of party other thin customer to sue banker. Payment of forged cheques by bankers. 148 BANKEBS. Hankers dishonour- ing cheque which they specially undertook to honour. Action against BanJcers for Dislionoiiring Customer's Clieque^ setting out a special undertaking that it should he paid, 1. The plaintiff' carries on business as a wine merchant at N., and the defendants are a firm of bankers having a bank there, and were and had for a long time previous to the date mentioned in the next paragraph, been the bankers of the plaintiff. 2. On or about the 9th day of February, 187G, the plaintiflT delivered to the defendants a sum of £120 9s. M., on the terms that a sum of £96 out of the same should be specially applied by the defendants to honouring a cheque for that amount which the plaintiff was about to draw in favour of Messrs. M.^ McK. & Co, ; and a clerk of the defendant's accepted the said sum of £120 9s. 8^. on behalf of the defendants on the said terms, and promised on their behalf that the said sum of £9& should be by them held for the purpose of honouring the said cheque, and should be applied thereto, and not othenvise. 3. The said cheque was duly presented to the defendants for payment on or about February 13th, 1876, but the de- fendants refused to honom' the same, and returned it with the indorsement "Not provided for," although they held at the time the money specially provided to meet the said cheque. 4. The defendants and their manager, Mr. T. L. A., were aware of the circumstances under which the said sum of £120 9s. 8d had been paid to them, and the terms upon which it had l)een received by them at the time they so dishonoured the said cheque as aforesaid, and they had been aware of them for some considerable time previously, but no intimation was given by them to the plaintiff of any intention on their part to dishonour the said cheque, nor did the plaintiff" know that they had so dishonoured it till some time after they had done so, at which time the said cheque had been returned to Messrs. M., McK. & Co. by the Nottingham Joint-Stock Bank, through whom it was presented for payment, 5. In consequence of the above-mentioned dishonour of hi& cheque by the defendants, the plaintiff" hfis suffered great damage, and his credit has been greatly injured thereby. The plaintiff claims £3000. BANKERS. 149 Statement of Defence. 1. The defendants deny all and every the allegations in the Bankers 5nd, 3rd, 4th, and 5th paragraphs of the statement of claim f^f °°°''''' respectively contained. cheque. 2. The defendants admit that on the 8 th day of February, Defence. 1876, the plaintiff paid into the defendants' bank the sum of £76 Is. in cash, and that on the same occasion he presented to the defendants at their said bank for discount two bills of exchange, one for £34 13s. and the other for £10 55. The defendants discounted the said two bills of exchange for the plaintiff, and the aggregate amount paid or allowed by the defendants to the plaintiff in respect of the said two bills of exchange on the discounting thereof was the sum of £44 7s. 4^/. 3. The transaction between the plaintiff and the defendants in regard to the said two sums of £76 Is. and £44 7s. 4rf. in the 2nd paragi'aph mentioned was as follows : Each of the said sums was on the said 8th of February, 1876, paid by the plaintiff into the hands of the defendants as the bankers of the plaintiff in the usual way to the general credit of the banking account then kept by the plaintiff with the defendants, and upon which the plaintiff was then indebted to the defendants in a sum of £2573 lis., besides a smn of a"bout £130 then due for interest and commission on the plaintiff's said bankhig account. The ])laintiff at the time when he paid in the said sums respectively gave no direction whatever in regard to the application of the said sums, or any part thereof, and the defendants on the said 8th day of February, 1876, placed the said sums of £76 Is. and £44 7s. Ad. respectively to the general credit of the plaintiff's said banking account, and appropriated the same in reduction and part payment to the defendants of the said sum then due from the plaintiff to the defendants as aforesaid. 4. The defendants deny that the said hereinbefore men- tioned sums of £76 Is. and £44 75. M., or any part thereof, were l)y the plaintiff paid to the defendants, or accepted by the defendants, upon the terms that a sum of £96 out of the same should be specially a})i)lied by the defendants to the honouring of a ciie(|ue for tliat amount which the plaintiff was about to draw or did draw, in favour of Messrs. M., McK. & Co. 150 BANKERS. Bankers disliou cur- ing a cheque. Defence. Defence of ratification by subse- quent conduct. 5. Tlic defendants admit that on the Ir^th of February, 187G (and not the loth of February as ui the statement of claim alles>-ed), a cheque of the plaintiff's in favour of Messrs. M., McK. & Co. for £9G was presented to the defendants for pay- ment, and that the defendants refused to honour the same, and returned it with the indorsement " not provided for." The said presentment of the said cheque for payment was the first know- ledge the defendants had of the said cheque having been drawn, and at the time of the said presentment of the said cheque the plaintiff's banldng account with the defendants was very largely in debt, and the plaintiff was indebted to the defendants thereon in a sum exceeding £2500. 6. After the said 8th of February, 187C, and until the 14th of March, 187G, the plaintiff continued to keep his banking account with the defendants, and on the said 14th of March, 1876, the plaintiff paid to the defendants £2624 5s. 4d, being the balance which then remained due from him to the defen- dants upon the said banking account after crediting the plain- tiff with the said smus of £76 Is. and £44 7s. Ad, as in the 3rd paragraph mentioned, and the defendants thereupon, at the request of the plaintiff, gave up certain securities which they held for securing a portion of the plaintiff's said banking account. The defendants say that if any ratification were necessary, the plaintiff thereby ratified, and adopted the mode in which they had dealt with the said sums of £76 Is. and £44 7s, 4f7., as in the 3rd paragraph mentioned. And by way of set-off and counter-claim the defendants say : 1. That between the months of April and August, 1876, the defendants advanced and lent to the plaintiff, and the plaintiff boiTowed and received from the defendants sums of money amounting, along with the agreed rate of interest, in the whole to the sum of £1705. FuU particulars of the same have been delivered to the plaintiff. 2. All things have happened and times elapsed necessary to entitle the defendants to be paid the said sum of £1705, yet the plaintiff has not paid the same. The defendants claim £1705. BANKERS. 151 Action ly Banlcers to recover the Amount of a Cheque paid ly Mistalce. 1. The plaintiff is a public officer of the C. and C. Banking Action by Company, entitled by Act of Parliament to sue in the name of J^ recover their public officer. money paid 2. The C. and C. Banking Company has its principal place by mistake. of business at C, but it also has branches at P., at A., and at other places, 3. These branches are quite independent of one another and of the central bank at C, and are, in fact, separate banks with separate customers, and separate accounts and books. 4. On the 24th April, 187 G, one J. W. delivered to the defendant a cheque on the said A. branch, where he had an account. The following is a copy of such cheque and of the indorsements on it : — "A . "No. — . " (C ) 24th April, 187G. " The C. and C. Banking Company. " Pay to Mr. J J or order three hundred and ninety- two pounds. " £392 Os. Of?. " J W . " London Agents : L. and W. Bank, C. D." Indorsed " J J •" 5. On the 25th April, 187C, the defendant presented the said cheque to the said P. branch, and requested the manager of the said branch to cash the said cheque. 6. The manager of the said P. branch knew nothing about "W. and the state of his accounts with the A. branch. 7. The manager of the said P. branch cashed the said cheque on the credit of the defendant and as a matter of favour to him, and not otherwise, and in cashing the said cheque the said manager did not pay tlie said cheque, nor had he any intention of doing so. 8. The said P. branch forwarded the cheque in due time to the A. branch, who returned the said cheque to them dishonoured. 0. The said W. had overdrawn his account, and the said A. branch were justified in refiising to pay the same. 152 BANKEBS. Action Ly bankers to recover money paid by mistake. 10. The plaintilT claims : — £392 and interest thereon from April 24tli till judgment, as money lent and advanced and as money received by the dciendant for the use of the plaintiff, the con- sideration for the same having ft\ilcd. Statement of Defence. Defence. 1- The defendant does not admit the allegations in the 3rd paragraph of the statement of claim. 2. The defendant admits that the said J. W. delivered to the defendant on April 24:th a cheque on the C. and C. Banking Company, and that the said cheque was in the words and figures set out in the 4th paragraph. The defendant does not admit that the said cheque was drawn on the A. branch solely, but refers to the said cheque, and submits that the same was di-awn on the said C. and C. Banking Company generally. 3. The said cheque was delivered to the defendant at P., on the said 24th April, after banking hours, and the defendant presented the same on the 25th April at the said branch, as and being a branch of the said C. and C. Banking Company, on which the said cheque was drawn for payment in the ordi- nary course, and the same was thereupon paid. Save as aforesaid the defendant denies the allegations in the 5th and 7th para- graphs respectively. 4. The defendant does not admit the allegations in the Gth paragraph. 5. The defendant kept no account with the said banking company, and was not personally known to the manager of the P. branch by whom the said cheque was paid. The said cheque was voluntarily paid by the said P. branch to the defendant, and was not cashed on the credit of or as a favour to the defendant. G. The defendant does not admit the allegations in the 8th and 9th paragi-aphs of the statement of claim. 7. On the 2Gth of April the said J. W. paid to the manager of the A. branch of the said banking company (who was the agent thereof for the pirrpose of receiving such payment) a large sum of money, to wit, £24GG 185. 8f?., for the express purpose of meeting and providing for various cheques drawn by the said J. W. on the said banking company, including the cheque referred to in the statement of claim, and the said BANKRUPTCY. 153 manager and the said banking company received such money Action by upon the terms that the same should be so applied, and have l^ankers ^ . to recover thenceforward retained and stiU retain the same. money paid 8. The defendant denies that the said simi of £392, or any by mistake. part thereof, was money lent by the plaintiff as the said banking company to the defendant, or was money received by the defen- dant for the use of plaintiff or the said banking company. Rejyly. The plamtiflf joins issue on the defence of the defendant, except so far as it admits the allegations in the statement of claim. Bankruptcy («). Action hj Trustee in BanTcruptcy fur a Debt due to the Banlcrvpt. 1. The plaintiff is the trustee of the estate of G. K., who ciaim by was, on the day of , 1877, duly adjudicated a bank- trustee for . 1 T 1 -r. 1 1^ n i. flebt due to rupt m the London Banki-uptcy Court. bankrupt. (a) Actions hy ti-mtiv.f in bnnknijjtc/f.]—Bj the joint operation of the 1 1th and 17th sections of the Bankruptcy Act of 18(J9, all the property of a bankrupt divisible among his creditors as defined by the 17th section, including choses in action, becomes absolutely vested in the trustee on his appointment. His title relates back to the act of bankruptcy on which the adjudication was founded, or if there have been several acts of bankruptcy within twelve months before the date of adjudication, then to the first of such acts ; but it does not relate back to the twelve months before, unless at the time of committing the act of bankruptcy the bankrupt was then indebted to some creditor or creditors in a sum or sums sufficient to support an adjudication, and such sum or sums remained due at the date of adjudication. As to relation back in case of non-payment of debt under debtors' summons, see £x jmrte Wier, L. R. 6 Ch. 87.5. By sect. 22, par. 2, " \Miere any portion of the property of the bank- rupt consists of things in action, any action, suit or other proceeding for the recovery of such things instituted by the trustee shall be instituted in his official name as in this Act provided ; and such things shall for the purpose of such action, suit, or other proceeding be deemed to be assign- aVjle in law, and to have been duly assigned to the trustee in his official capacity." By scot. 83, sub-sect. 7, the official name is " the trustee of the property of , a bankrupt," inserting the name of the bankrupt. Under former bankruptcy statutes, it was held that where the appoint- ment of an assignee was duly vacated, and a new assignee was ap- pointed, the latter became assignee from the first appointment by relation. {Aldrett v. Kcttridgc, 1 Bing. :55o.) There seems to be scarcely Property vested in trustee. Relation back of his title. Name in which the trustee sues. 154 BANKRUPTCY. Claim by trustee for debt due to bank- rupt. Interests of the bankrupt that pass to the trustee. Rights of action for breach of contract pass to trustee. When rights of action for tort pass to trustee. 2. Before the said date and tlic said adjudication, the defen- dant was indebted to the said G. K., for goods sold and delivered room for the application of this doctrine under the present law, as by the 83rd section sub-sect. (>, " the property of the bankrupt shall pass from trustee to trustee, including under that term the registrar when he fills the office of trustee, and shall vest in the trustee for tlie time being during his continuance in office without any conveyance, assignment, or transfer whatever." An option which the bankrupt had to take a lease, passes to his trustee. {Buclthnid v. PajfiUon, L. R. 2 Ch. 67 ; and see Slnqhwn v. Buthhurst, L. R. 5 Ch. 193, 202, as to the power of renewing a lease vested in the bankrupt before adjudication.) Where property was given to an uncer- tificated bankrupt contingently on his obtaining his certificate, this right was held to pass on the liappening of that event to the assignee. (^Davi.soii. v. ChaJnicrs, 33 L. J. Ch. (;22.) Though this case was decided under the Act of 18()1, it would apply under the present Act. Money paid away for ml III' by an uncertificated bankrupt cannot be followed by the trustee, though the payee had notice of the bankruptcy. (^Ex iiarte Bewlmrst, L. R. 7 Ch. 185.) All rights of action for breach of contract liquidated or not pass to the trustee. (Wright \. Ihirjield. 2 B. Sc Ad. 727.) The right to enforce unexecuted contracts which may be performed by the trustee on behalf of the bankrupt, and such as would pass to his executor if he died, will pass to the trustee. {Gibson v. Carrvthers, 8 M. &W. 333.) But st-mhle if the contract be one with the bankrupt, his executors, and administra- tors, the right to complete it would not pass to the trustee. {Knight v. Burgess, 33 L. J. Ch. 727.) Where the right of action of the bankrupt's wife is such that if vested in the bankrupt alone it would pass to the trustee, the interest of the bankrupt in such right of action passes to the trustee. {Riclthell v. Alexander, 30 L. J. C. P. 2G8.) The right of action arising out of certain torts committed against the bankrupt before adjudication passes to the trustee ; in other cases it does not ; the test being, was the wrong one which was personal to the bank- rupt, and for which he would be entitled to a remedy whether his pro- perty was impaired or not ' in which case the cause of action does not pass to the trustee, but remains in the bankrupt— or was a pecuniary loss and damage to the estate the substantial and primary cause of action ? in which case it passes to the trustee, though involving personal inconveni- ence to the banknipt. {Wethirell v. Julius, 10 C. B. 207.) Thus aright of action for trespass to a dwelling-house, and disturbing the bankrupt in the enjoyment of it by which he was prevented carrying on his busi- ness was held not to pass to the assignee. The right of action for a wrongful dismissal passes to the trustee, at least it formerly did to the assignee {Becliham v. Bralir, 2 H. L. C. o71»). It is perhaps not easy to recognize in these cases any very striking illustrations of the distinction just pointed out, as a wrongful dismissal seems a matter somewhat " per- sonal " to him who is dismissed. In the case Wetherell v. Jvlius, svjJTa, the distinction was drawn between a right of action against a solicitor for negligence occasioning the arrest of the bankrupt, and negligence leading to a sequestration of the profits of the bankrupt's benefice ; in the former case the cause of action not devolving, but in the latter passing to the trustee. On the principle of this distinction it was held that an action for negligence against a solicitor, in consequence of which the client had a judgment passed against him, and was adjudicated bank- rupt passed to the assignee. {Criuvford v. Ciunamond, Ir. R. 1 C. L. BANKRUPTCY. 155 Order and disposition clause. by the said G. K. to the defendant (particulars whereof have claim by been delivered to the defendant), in the sum of £85. S dulto ___^ Ijaukrujit. 325, Ex.) So an action for misrepresentation whereby the plaintiff lost £2000, and was in consequence adjudicated bankrupt, though involving- personal annoyance, trouble, and discredit, was held to pass. {Hodgson V. Sijdnci, L. K. 1 Ex. 313.) In this case Bramwell, B. (now Lord Justice) suggested that the same tort may have two different characters, one giving the trustee a right of action on behalf of the estate, and the other giving the bankrupt a right of action on account of the personal injury. This it must be remembered is not a decision but only a dictum, and ^vith the utmost deference for so high an authority there appear some practical difaculties in the way of applying such a doctrine. There is no analogy between such a case and one where a tort, such as a libel, is committed, affecting a number of persons, each of whom may claim damages, for here the injury is only committed against one person, and the suggestion is that you are to allow that person to be as it were multiplied for the purpose of creating separate torts. One of the most frequent subjects of controversy insults for the deten- tion or conversion of chattels, by as well as against the trustees of bank- rupt estates is the " order and disposition clause (sect. 15, sub-sect. .5). The subject is too large to be dealt with in a work of this scope, and, indeed, it scarcely comes within it. . The law on the subject will be found very clearly and comprehensively stated in •' Roche & Hazlitt's Bankruptcy Law." It is well, however, to notice that thhu/s hi, action other than debts due to the bankrupt in the course of his trade or business, are not goods and chattels within the meaning of that clause, which it may be stated only relates to traders. In certain transactions between the bankrupt and others, where the bankrupt disposes of goods, &;c.. after an act of bankruptcy has been committed, the trustee has the option either of adopting the contract made by the laukrupt, and suing the party in an action ex contractu, or of disaffirming the contract, and suing the person dealing with the banknipt for conversion or detinue. In such cases if the trustee adopts the trans- action, he cannot afterwards treat the other party to the transaction as a wrongdoer. (Smith v. Jiah;r, L. R. 8 C. V. 3uO ; and see Jl/irks v. Feldmiit, L. K. 5 Q. B. 275. Ex. Ch.) Where there has been a collusive sale or transfer of goods by the bankrupt in contemplation of liankruptcy, there is no conversion without a demand and refusal, unless the sole amounts to an acailahh act of bankruptcy, as the property is transferred subject to the transfer being avoided. (See Stevenson v. Ken-nluun, 22 L. J. C. P. 110, Exch.) But if the goods have been converted into money an action for money had and received is maintainable by the trustee, without prior notice of the disaffirmance of the sale or transfer of the goods. {Jleilhut V. XcviU, L. B. 5 C. P. 478, Exch.) If the sale or trans- fer amount to an atailahle act of bankruj/tci/, ^.a a fraudulent preference, then immediately on the adjudication, it is avoided by reason of the relation back of the title of the trustee to the act of bankruptcy ; it is then a dealing with the property of the trustee, and absolutely void. J5ut the right above referred to of disaffirming any prior fraudulent pre- ference is fjuite distinct from the right which he takes by virtue of the relation back of his title ; in the former case the transaction standing good unless repudiated or disaffirmed, in the latter it Ijcing al)solutely void. (Hee Jleilhut v. Necill, L. B. 4 (J. P. 354, 35;» ; ^f((rl^s v. Fddman, L. K. 5 Q. B. 275, Ex. Ch.) Although the assignment by a debtor of all his goods for a past debt is an act of bankruptcy, yet if there is no relation back to that act the trustee cannot, if there be no fraud in fact or any When the trustee may affirm or disaffirm dealings of the bank- rupt. 156 BANKRUPTCY. Claim by trustee for debt due to bankrupt. Protected transac- tions in bank- ruptcy : .ss. 94&it5. Effect of above .sections. When an execution creditor is protected. o. The said sum reniaiued due at the date of the said adjudi- cation. intention to prefer, disaffirm the transaction nor sue for the price of the goods if sold. {Jones v. I/arhrr, L. E. fi Q. B. 77.) The following transactions are protected by the Bankruptcy Act, 1869, viz., by sect. 94, sub-sect. 3, " any contract or dealing with any bankrupt made in good faith and for valuable consideration hefovc flir (laic of tlw order of adjud'icai'wii hy a person not luirlnfj. at the time of viu/iiiif/ such rontnict or dedlutg, not'u-e of tini/ act if honlu-iiptey committed hy the hanknipt and tivnilaJde against him for adjudication ;" and sect. 95, sub- sect. 1 , " any disposition or contract with respect to the disposition of property by conveyance, transfer, charge, delivery of goods, payment of money, or otherwise howsoever, made by any bankrupt in good faith and for valuable consideration before the date of the order of ndjiidieation, n-ith anyjjcrsoit not having at the time of the making of such disjumtion of property, notice of any act of hanhrujricy committed hy the hanh-vpt and arailahle for adjudiention.''' The effect of these provisions is to limit the relation of the title of the trustee in those cases to n-hieh th-y apply, to the order of adjudication instead of to the act of bankruptcy as in ordinary cases. The authorities above cited, as to the right of the trustee to disaflfirm certain transactions and treat others as absolutely void, have been with one exception decided subsequently to the passing of the Act, and do not ajiply to those cases where the person dealing with the bankrupt has acted hona fide and in ignorance of the act of bankruptcy, such as are contemplated by these provisions. Questions not unfrequently arise as between the trustee in bankruptcy and execution creditors. On this subject, the OSth section (sub-sections 2 & 3) provides that any execution or attachment against the land or goods of the bankrupt executed in good faith by seizure in the case of land, and by seizure and sale in the case of goods, before the date of the order of adjudication, if the person on whose account such execution or attachment was issued, had not at the time of the same being so executed by seizure, or seizure and sale as the case may be, notice of any act of bankruptcy committed by the bankrujit and available against him for adjudication shall be valid notwithstanding any prior act of bank- ruptcy. It has been held under this section that where the seizure is made after an act of bankruiitcy, but without notice thereof, the execution creditor is entitled to the proceeds of the sale, as the words " notice of anv act of bankruptcy" mean notice jn'ior to the seizure. {Ex parte Sehulte, L. R. It, Ch. 40'J.) An execution protectecl under these provisions may be an act of bank- ruptcy which may avoid a subsequent execution levied by the same creditor. {E.r parte Dan-es, L. R. 19 Eq. 438.) Where the seizure of the debtor's goods is prior to any act of bank- ruptcy to which there is relation, the right of the execution creditor to obtain payment of his debt by sale is not under the Act (1869), in general affected by a subsequent act of bankruptcy followed Ijy adjudi- cation, for he is "a creditor holding security " under sect. 12, and there is nothing in this Act as in that of 1849 to avoid such security. {Slater v. Finder, L. R. 7 Ex. 95 (Exch. Ch.) ; and see Ex parte lloclw, L. R. 6 Ch. 795 : and Ex parte Lovering, L. R. 17 Eq. 452.) Such " security " is not acquired by the mere delivery of the writ to the sheriff, and not until seizure. {Ex parte WillianLs, L. R. 7 Ch. 314.) The fact of a seizure and sale amounting to an act of bankruptcy under sect. 6 of the Act does not affect the execution creditor's right under sect. 95, unless the case falls within the 87th section. If it fall within BANKRUPTCY. 157 4. Tlie defendant has not paid the same or any part thereof claim by totheplamtiff. _ ^™tbt The plaintiff claims : — due to bankrupt. that section the sheriff may still sell, and if he receives no notice within fourteen days that a petition has been presented, he may pay the amount levied to the execution creditor, who is entitled to retain it unless he had notice of an act of bankruptcy prior to the seizure. [Ex parte Vlllnrs, L. R. !) Ch. 432.) A private sale by the debtor, being then in insolvent circumstances, to the execution creditor of goods seized to avoid a sale by the sheriff, is a fraudident transfer under sect. 6, and is not protected either by the 87th or 95th section, so that the trustee is entitled to recover them or their jmce. {Ex parte Pearson. L. R. 8 Ch. GRT.) And the trustee is entitled to goods seized by the sheriff, if on the sale of them he would be entitled to the proceeds under the S7th section. {Ex parte liayiwr, L. li. 7 Ch. 825.) The 87th section does not apply to cases where hefure seizure the debtor delivers bills to the sheriff, which the execution creditor accepts in satisfaction of the judgment, and siicli payment is valid {Ex parte Brnolte. L. R. Ch. 301) ; nor where the money is paid after seizure and before sales, and the creditor agrees to take it on account of the debt. {Stoek v. Holland, L. R. !» Ex. 1-17.) Suits h)/ trustee and solvent partner of hanh'upt.'] — By sect. 105 of B. A., 1869, "\\Tiere a member of a partnership is adjudged bankrupt, the Court of Bankruptcy may authorize the trustee, with consent of the creditors, certified by special resolution to commence and prosecute any action or suit in the names of the trustee and of the bankrupt's partner ; and any release by such partner of the debt or demand to which the action or suit relates, shall be void : but notice of the application for authority to commence the action or suit shall be given to such partner, and he may show cause against it, and on his application the Court may, if it think fit, direct that he shall receive his proper share of the proceeds of the action or suit, and if he does not" claim any benefit therefrom he shall be indemnified against costs in respect thereof as the Com-t directs." It sometimes happens in cases of fraudulent preferences that the trustee and a partner of a bankrupt may maintain an action which the partners could not. These are cases where the trustee avoids the preference. {Jleilbut V. Ncvill, L. R. 5 C. F. 478, Exch.) Claims by a trustee in bankruptcy as such shall not, unless by leave of the Court or a judge, be joined with any claim by him in any other capacity. (Judicature Rules, Order XVII., rule 3.) Defences.— Z)("«i«/ (f offieial eharacter.]—'Bj Order XIX. r. 11, if either party wish to deny the right of any other party to claim as trustee whether in bankruptcy or otherwise, he must deny it specifically. Payment. — By the 94th section, sub-section 1 , payments made in good faith and for valuable consideration to a bankru))t Ijefore the date of the order of adjudication by a person not having at the time of such pay- ment, notice of any act of bankruptcy committed by the bankrupt and available against him for adjudication are valid. Mutual credits sd-off.— 13y sect. ?>\), where there have been nmtual credits, mutual debts, or other mutual dealings between the bankrupt and any other person proving or claiming to prove a debt under the bankruptcy, an account shall be taktii of what is due from the one party to the other in respect of such mutual dealings, and the sum due from the one party shall be set off, and the balance of such account and no more shall be claimed or paid on either side respectively ; but a person shall not be entitled under this section to claim the benefit of any set-off The rights of an execution creditor as against the trustee. Trustee and a solvent partner suing together. Claims by trustee .shall not be joined with claims in any other capacity. ^Yllen pay- ment to a person having committed an act of bank- ruptcy good. Set-off, 158 BANKRUPTCY. Claim liy tnistee in liqiiidatiou for money lent by debtor. Set-oflF. What may be ' ' set-off. " Actions by trustee in liquidation. TVhen bank- ruptcy is a defence. "When a composi- tion is a •defence. Action hy Trustee in Liquidation. 1. Tlic above-named A. M, and L. M. (hereinafter called the debtors), in the years 1871 and 1872, carried on busi- jigainst the property of a bankrupt in any case where he had at the time of giving credit to the bankruj)!, notice of an act of bankruptcy com- mitted by siich bankrupt, and available against him for adjudication. It has been held that this section includes a claim for unliquidated damages. {Booth v. TLitchinson, L. R. 15 Eq. 30.) The expression " mutual credit," applies to vs^here the credits are such as must from their nature end in dehts. (See JVaoror/i v. Chartered Bank of India, L. R. H C. r. 444 ; AstUnj v. aurnci/, L.'R. 4 C. P. 714, Ex. Ch.) And, there- fore, where there is a mere deposit of property without authority to turn it into money the section does not apply. The section applies, although the bankrupt has a lien for the amount of the debt due to him. {B,v 2)artc Bariu-tt, L. R. 9 Ch. 21)3.) The section only applies with reference to claims between the bankrupt himself and his creditor. {Turner v. 27uii>uig, Ij. R. C. P. 610.) It does not ap])ly to cases where one only of several joint debtors becomes banki'upt. (J\ e/t? Qiiebrada Co. v, Cai'r, L. R. 4 C. P. (iol.) Actioit hy trustee wider liquidation.'] — The title of a trustee under a liquidation relates back to the filing of the petition. (U,v parte Buiffnan, 40 L. J. Ch. 33 ; and his title will relate back to an act of bankruptcy prior to the filing of the petition in analogy to the case of bankrupts. (B.c parte Eyles, L. R. 16 Eq. 'yd ; Ex parte Schulte, 9 Ch. 409.) His title therefore is good against an execution creditor, who seizes the goods with notice of filing of the petition. {E.r parte Buignan, supra.) Property acquired by the debtor during the liquidation proceed- ings until he has obtained his discharge vests in the trustee. (Re Jones' Estate, 10 W. N. (1875), p. 47.) Actions h)j or against hankrupts.] — See atite, p. 154, as to what causes of action do not pass to the trastee on his appointment. Bankruptcy is no defence to an action against the bankrupt until after he has obtained his order of discharge, as sect. 12 only prevents the en- forcement of any remedy against the person and property of the bankruj^t except in accordance with the Act, but does not prevent his being sued for a debt provable under his bankruptcy. {Marshall v. King, 31 L. T. N. S. 511.) If the bankrupt obtained his discharge after action it could only be pleaded in bar to the further maintenance of the action. {Jones V. nill, L. R. 5 Q. B. 230.) In such a case now, if the defence arises after the statement of defence has been delivered it can be pleaded with leave by way of amendment (see pp. 87, 88, ante). If it arises after action and before the delivery of the statement of defence, it will be set out like any other ground of defence. A discharge granted to a debtor who is a member of a firm, in his separate bankruptcy, releases him from his joint as well as his separate debts. {Ex parte Hammond, L. R. 16 Eq. 614.) WQiere a verdict for breach of contract is obtained against the bankrupt before the commencement of the bankruptcy, but judgment is not signed or costs taxed until afterwards, the whole claim is barred, as it is provable. {Ex parte Peacock, L. R. 8 Ch. 682.) Befence of composition, J)-c., luider Banhruptey Act, 1869.] — A resolution for a composition duly passed under sect. 126 of the Bankruptcy Act, 1869, is a bar to any creditor bound thereby, so long as there has been no default on the part of the debtor to perform his part of the agreement. (Slater v. Jones, and Cajyes v. Ball, L. R. 8 Ex. 186.) But upon such default or upon his failing to pay an instalment of the composition, the BANKRUPTCY. 159 ness as financial agents at , in the City of London. They Action by filed their petition in the London Bankruptcy Court for the tfustee in liquidation of then- affairs by arrangement or composition with tion. their creditors on the 2nd day of December, 1874, and the plaintifi" was duly appointed trustee of their property. 2. On and between the 2nd October, 1871, and the 27tli August, 1872, the said debtors lent and advanced divers sums of money to the defendant, and paid divers sums of money for the defendant at his request, and the defendant became in- creditor may sue for the whole balance of the debt remaining due, whether or not he has assented to the resolution. {Echvards v. Coomhe, L. R. 7 C. P. 519 ; Gohhuij v. Lording_, L. It. 8 Q. B. 182.) On an action to recover a debt of £50, the defendant pleaded that as to £27 IT).?. lOrZ. it was the balance remaining due on a joint and several promissory note, made by the defendant, and H. carrying on business as co-partners to secure a debt due from them to the plaintiffs, that defen- dants instituted proceedings under ss. 126, 127 of the Bankruptcy Act, 1869, and that an extraordinary resolution of the creditors was passed for accepting a composition payable lij' instalments, to be secured by joint and several notes. Held, Kelly, C. B., dinxcnticnte, that assuming the plaintiffs were not parties to the resolution, and had not adopted it or received any instalment under it, the facts alleged offered no defence to the action. (Simpxon v. Iloifii/if/, H L. J. Q. B. 143, Ex. Ch.) A creditor who has attended the meetings under sect. 126 of the Bankruptcy Act, 1869, and who has voted at the resolutions, is bound thereby, though his debt is omitted from the debtor's statement, ( Campbell v. Im Thurii, 45 L. J. C. P. 482.) In order that a resolution to accept a composition should be a bar to an action against the debtor, the statement must show a definite amount admitted to be due ; and therefore where after the amount of the credi- tor's (the plaintiff's) claim, it was stated to be disputed under legal advice, and referred to arbitration, this debt was held not to be barred. ( Mcl- hado V. Wat.'ion, 46 L. J. 502, on Appeal, reversing the decision of the Court below.) Where a debt was contingent and was omitted fi-om the debtor's state- ment, it was held not to be barred by a resolution to accept a composi- tion. ( Wilson V. Brculauer, 46 L. J. 593, App.) The release of a debtor by resolution for composition does not release his co-debtor. (^Ex parte Jaeohs, L. R. 10 Ch. 211.) In liquidation by arrangement under sect. 125, a creditor is, in the ab- sence of fraud, bound by the resolutions passed, if duly registered under sect. 127, though he has no notice of the proceedings, and though his name and debt be omitted from the list of creditors ; and no subsequent promise to pay will support an action founded on a debt from which the debtor is released by virtue of the Bankruptcy Act, 1869. (Sec J feather V. W(M, 46 L. J. 89.) By sect. 15 of 32 & 33 Vict. c. 62 (Debtors Act, 1869), where a debtor makes any arrangement or composition with his creditors under the pro- visions of the Bankruptcy Act, 1869, he shall remain liable for the unpaid balance of any detjt which he incurred or increased, or whereof before the date of the arrangement or composition he obtained forbearance by any fraud, provided the defrauded creditor has not assented to the arrangement or composition otherwise than by proving his debt and accepting dividends. (See Ex parte Ilalfurd, L. II. 19 Eq. 436.) When a composi- tion a defence. A bankrupt after his discharge remains lial)le for debts in- curred by fraud. IGO BANKRUPTCY. Action by trustee iji liquida- tion. debtcd to the said debtors for interest upon moneys due from the defendant to the said debtors. The defendant also became indebted to the ]ihiintiff, as trustee as aforesaid, for further interest on the said moneys. 3. The following are the particulars of the plaintiff's claim against the defendant (the credit side of the account showing the amounts which the plaintiff admits to have been received in reduction of the claim) : [Here folloivs a iaJancesheef.] 4. The said balance of £10,000 has not, nor has any part thereof, been paid to the said debtors, nor to the plaintiff as trustee as aforesaid. The plaintiff, as trustee as aforesaid, claims : — Action by trustee for breach of contract. Action hy a Trustee in BanJcruptcy for damages fw breach of a Contract made with the Ba7ilcrupt. 1. The defendant is a general merchant at M. 2. On the 3rd of October, 1874, C. F., of Y., agreed to buy, and the defendant agreed to sell to him, fifty bags of flour, to be delivered within three months at the warehouse of the said C. F., and to be paid for at the rate of £5 per bag, by promis- sory notes, payable tliree months after date, and to be made by the said C. F. and given to the defendant one month after the said 3rd of October, 1874. 3. All things happened and times elapsed necessary to entitle the said C. F. to a performance by the defendant of his said con- tract, and to receive delivery of the said fifty bags of flour, yet the defendant has not delivered the same or any pai't thereof. 4. After the making of the said contract C. F., being a debtor unable to pay his debts within the meaning of the 125th and 126th sections of the Banlu-uptcy Act, 1869, presented a petition according to the form in the schedule to the Bank- ruptcy Rules, 1870, made in pursuance of the said Act, to the County Court of Y., holden at C, having jurisdiction in that behalf, and the plaintiff was duly appointed trustee of the property of the said C. F. The plamtiff, as such trastee, claims : — £200 damages for the defendant's breach of the contract set out in the 2nd paragraph of this claim. BANKRUPTCY. IGl Action hj Trustee under a Scotch Seqifcstration Registered in statement London BanTcnijptcy Court for DeM due to Sequestered of claim Estate. l^tru^l^^ 01 Scotch 1. The plaintiff is trustee of the sequestrated estate of the ^ion^***^'^' late partnershij) or fii-m of j\Iessrs. W. & Co., engineers, of Gr., and of the several estates of the partners of the said firm, by Tii-tue of an act and warrant made in the Scotch Seques- tration on the day of , 1875, and duly registered in the London Bankruptcy Court. 2. The defendant is an engineer, canying on business in London, under the style of B. & Co. 3. Previously to the agi-eement hereinafter mentioned, a claim had been made by the plaintiff against the defendant for moneys alleged to be due from the defendant to the firm of W. & Co., which claim was disputed by the defendant, and the plaintiff and the defendant had entered into negotiation for the compromise and arrangement of such claim. 4. On the day of , 1875, and the , 1875, in consideration that the plaintiff would compromise the above claim, the defendant offered the plaintiff, in Aniting, to agree to admit a liability of £500. 5. On the day of , 1875, the plaintiff wrote to the defendant, with reference to the said offer, a letter in the words and figm-es following : — " 12, St. V. Place, G-., " 25th , 1875. " T. B., Esq., London. " Dear Sir, " W. & Co.'s Seqn. " I have the pleasure of informing you that at a meetuig of Commissioners, held on the 22nd instant, I was authorised to accept the offer contained in your letters of the 21st , 30th of , and 15th of , and I now beg to put in writing the terms of the Ijargain : — " (1) You are to pay me £500 sterling as early as possible, but at latest £250 on or before January, 1876, and £250 within three months thereafter. " (2) On receipt of tlie £500 I am to release you irom all claims at the instance of the estate, l)ut if you do not carry out your obligations under tin's agreement, my M 162 BANKKUPTCY. Claim by trustee of Scotch sequestm- tion. Defence to statement of claim ( not given) that de- fendant's creditoi'S accepted composi- tion. Avholc claim is to revive. I, of course, am not to be bound to do anything to assist you in obtaining delivery of the machines. " Yours truly, (Signed) "N. S." G. The defendant accepted the terms contained in the said letter of the 2r)th day of , 1875. The defendant also knowingly induced the plaintiff to believe that the defendant had accepted the same, and to act on the said belief, and to give time to the defendant ; and the plaintiff did so believe, and did act on the said belief, and gave time to the defendant accordingly. 7. All reasonable times have elapsed and all conditions been fulfilled necessary to entitle the plaintiff to sue. 8. The plaintiff, as trustee as aforesaid, and without preju- dice to his original claim, should it become necessary to enforce it, claims : — (1.) £500 due under the letter of 25th , 1875. (2.) £21 5s. 3^7. interest thereon, as appears by particulars. endorsed on the ■WTit. (3.) Interest on the above at 5 per cent, per annum until judgment. Defences and Replies. Defence {Statement of Claim not given) that the Defendants Creditors accepted a Composition ivlvich has teen Paid. 1. On the 24th day of May, 1875, the defendant duly filed a petition for liquidation of his affairs by arrangement or by composition with his creditors, under the provisions of the Bankruptcy Act, 1869, and a special resolution was duly passed by a statutory majority of the said creditors, that a composi- tion of 2s. in the £ should be accepted in satisfaction of the debts due to the creditors from the defendant, that such com- position be payable within a month after the registration of the resolution of the second meeting, and that H. B. be ap- pointed trustee in the interim for the receipt and distribution ■ of the composition. 2. The resolution was afterwards duly confirmed by a statu- tory majority of the said creditors at a subsequent general meeting, duly held in accordance with the provisions of the said Bankruptcy Act, 1869. BANKEUPTCY. 163 3, The i)laintifi"s name and address, and the amount of the Defence debts due to him, were duly inserted by the bankrupt in the continued, statement of his assets and debts, and all things required by the Bankruptcy Act and rules were done, so as to make the said proceedings valid and binding on the plaintiff ; and the defendant paid to the said trustee the amount of the composi- tion on the debts due to the plaintiff and the plaintiff's right to sue in respect of any of the claims in respect of which he is suing in this action has been extinguished by the said pro- ceedings in liquidation. The plaintiff says that the defendant did not pay to the said Reply. trustee, within the time limited therefor or at all, the amount of the composition on the debts due to the plaintiff, and the plaintiff never has been paid the said composition, although the time for the payment of the same to the trustee and to the plaintiff had elapsed before the coimnencement of this action. Defence that tlie Defendant's Affairs were Liqiiidated hij Arrangement. 1. On the day of , 1877, after the time when the Defence of plaintiff's claun is alleged to have accrued, the defendant being liquidation by arrange - unable to pay his debts, filed his petition in the County Court ment. of H., holden at N., and having jurisdiction in that behalf, praying for liquidation of his affairs by arrangement or com- position. 2. Thereupon a special resolution of the defendant's creditors was duly passed at a meeting duly holden of the defendant's creditors that the defendant's affairs should be liquidated by an-angement, and that a person named should be appointed trustee of the defendant's estate. 3. This special resolution was registered in the said Court on the day of , 1877, and the said person was duly appointed as trustee. 4. Such proceedings were had in the matter of the said liqui- dation, that on the day of , 1877, the defendant duly obtained his discharge under the said liquidation, and the de- fendant duly obtained his certificate of such discharge in the M 2 164< BILLS OF EXCHANGE. Defence of liquidation by arrauge- uient. Statute of Limita- tions. Reply. said liquidation duly given by the rcg-istrar of the said Court all things necessary in that behalf having been fulfilled. 5. The plaintiff's causes of action in the statement of claim mentioned (if any) did not, nor did any part thereof, accrue Avithin six years before this suit. EepI)/. 1. If the allegations in paragraphs 1, 2, 3, and 4 of the statement of defence are true, then the plaintiffs say that they were not included in the list of creditors delivered by the defendant to the registrar of the said County Court pursuant to the provisions of the Bankruptcy Act, 18G9. 2. And if the allegations in the said paragraphs are true, the jilaintiffs further say that notice of the first meeting of the creditors of the defendant under the said liquidation proceedings "was not given to the plaintiffs pursuant to the pro^sisions of the said Act. The plaintiffs neither voted nor proved their debt, nor received a dividend thereon, under the said liquidation proceedings, of which they have been ah^ays altogether ignorant. 3. The plaintiffs, as to paragraph 5 of the statement of defence, say that ^\'ithin six years before the commencement of this suit the defendant acknowledged, in writing, that the sum now sought to be recovered was due by him to the ])laintiffs. Statement of claim — payee against acceptor. Choice of remedies. Bills of Exchange («). Paijee of a Bill of Exchange against the Acceptor (b). 1. Messrs. A. B., on the 1st day of May, 187G, drew a bill of exchange upon the defendant for £100, payable to the order of the plaintiff one month after date. (a) Choice of remedies.] — A party suing on a bill of exchange or promis- sory note seems, since the Judicature Acts, generally, though not always, to have three modes of procedure open to him. He may either (1) issue an ordinary writ, and in due course deliver a statement of claim, or (2) he can specially indorse his writ under Order III. r. C>. and then apply upon proper affidavits under Order XIV. r. 1, for leave to sign final judgment against the defendant, or (3) in a large class of cases he may still proceed against the defendant under the Bills of P]xchaiige Act, 18 & I'J Vict. c. 67. The right of a party to pursue liis remedy in a summary way under this Act is specially preserved by the new rules. Order II. r. {h) Fornote (h) see post, p. IGG, BILLS OF EXCHANGE. 165 2. The defendant accepted the same. 3. The bill became due on the -Ath day of June, 187G, and the defendant has not paid it. The plaintiff claims £100. Statement of claim — payee against acceptor. says : " With respect to actions upon a bill of exchange or promissory- note commenced within six months after the same shall have become due and payable, the procedure under the Bills of Exchange Act, 18 & 19 Vict. c. (J?," shall continue to be used. It has been held on this rule that where the action had been commenced under the Act, the special practice under the Act must be strictly followed, and plaintiff could not sign judgment in default of appearance without filing an affidavit of personal service. He cannot have recourse to Order IX. r. f>,nor can he obtain an order for substituted service under Order IX. r. 2 {Pollock v. Camphell, 45 L. J. Q. B., C. P. & Ex. D. 199 ; Anon. W. N. 1875, 248.) It must be noticed, however, that the procedure under the Bills of Exchange Act only applies to the initiation of the action. If the defendant obtains leave to defend, then the case goes on and_ the procedure is exactly the same as in any other action. {Norr'is v. Brazley, L. K. 2 C. P. D. 80 ; 46 L. J. Q. B., C. P. & Ex. D. 169, 515.) But even with respect to the initial stages of the action before the defendant has obtained leave to defend, the procedure where the writ is issued under this Act is not altogether unaffected by the new practice. Thus in the case of Ogcr v. Bradnum (1 L. It. C. P. D. :iS4 ; 45 L. .1. Q. B., C. P. & Ex. D. 273), it was held that a writ under the Bills of Exchange Act may issue out of a district registry : and in another case where an action had been brought in the Sheffield registry, to which the defendant had appeared both in Sheffield and London, and had ob- tained leave to defend on paying £40 into Court, which he paid in, not in Sheffield but in London, judgment being signed and execution issued for noncompliance with the condition on defendant's application, it was held that by appearing in Sheffield, he had waived his right to object to the action being brought there, and he was therefore only allowed to defend on further conditions. (Ibbotson v. Mliifn-ortk, W. N. 1876, 10.) Bills of Exchange Act.}— By this Act the holder or indorsee of a bill of exchange or promissory note or cheque {Eijrc v. Waller. 29 L. J. Ex. 246), ?/ he sues vithia six month.-i after the .same hccomcs due and jmyahle. is enabled to issue a special form of wi-it endorsed as directed by the Act ; and unless the defendant obtains leave to defend the action, the plaintiff can, upon filing an affidavit of personal service of the writ, sign final judgment for the amount claimed by the writ together with interest and costs. The i)eculiarity of the remedy given the plaintiff is seen at a glance. The law presumes that the defendant is liable, and the burden is cast upon him of doing something at the very beginning of the action to obtain a hearing for his defence if he has one. Section 2 of the Act l)rescribes what the defendant is to do if he wishes to defend the action. '• A judge of any of the said Courts {i.e., the superior Courts, though the Bills of Exchange Act is now extended to the County Courts, and in that case it will be the judge of the County Court) shall ujion applica- tion within the period of twelve days from such service (the service of the writ upon tlic defendant), give leave to appear to such writ, and to defend the action on the defendant paying into Court the sum indorsed on the writ, or upon affidavits satisfactory to the judge, which disclose a legal or cfiuitable defence, or such facts as would make it incuml)ent on the holder to prove consideration, or such other facts as the judge may deem sufficient to support the application and upon such terms as to security or otherwise as to the judge may seem fit." Then by the next Act only applies to initiation of action commenced under it. Bills of Exchange Act. 166 BILLS OF EXCHANGE. Pdijpo of two Bills of Excltange afjainst Acceptor, vpon tJie hills, and also on the consideration. Claim on bill, and on the original considera- tion. Claim on liill may be combined witli claim on the original debt. Advantage in suing under Act. Provision as to mode of accept- ance. 1. The plaintiffs are merchants, factors, and com- mission agents, carrying on business in London. section it is provided that the Court or a judge may under special cir- cumstances set aside the judgment, and, if necessary, stay or set aside execution, and give leave to appear to the writ and defend the action. When the defendant obtains leave to appear and defend, the next step will be for the plaintiff to deliver a statement of claim. It was provided by E. G. H. T., 1858, that where a defendant obtained leave to defend under the Act the plaintiff might include in his declaration together with a count on the bill of exchange or promissory note (as the case may be), a count upon the consideration, if any, between the plaintiff and de- fendant for the bill of exchange or promissory note, and deliver a parti- cular of demand accordingly. There is nothing in the new practice to abrogate this rule, and the effect will therefore be, that in actions under this Act, the plaintiff in his statement of claim, which takes the place of the declaration mentioned in the rule, may insert allegations of fact which will enable him to claim alternatively, either on the bill or note, or the consideration for it. But it is submitted that the plaintiff cannot, when the writ is issued under this Act, combine under Order XVII. r. 1, in his statement of claim, any claim in respect of any other cause of action. Though this remedy is only given to a plaintiff who proceeds within six months after the bill falls due, it has been decided that a writ issued under the Act more than six months after the bill or note is due, though irregular, is not void, and the irregularity may be waived by the defendant iMalthy v. Mun-elU, 5 H. & N. 813 ; 29 L. J. Ex. 377), or it may be amended by the Conrt or a judge. {Leigh v. Baker, 2 C. B. N. S. 367.) A party proceeding under the Bills of Exchange Act has this ad- vantage over one who specially indorses his writ and proceeds under Order III. r. 6. In the former case the onus is cast upon the defendant of coming to the Court in the first instance, and upon his affidavits, ob- taining leave to appear and defend, but in the latter case, it is the plaintiff who has to commence by filing an affidavit, verifying. his debt and asking for final judgment, and it is only then the defendant is called on to disclose facts entitling him to defend. Again, there is another not un- important difference between the two procedures. A party defending under the Bills of Exchange Act obtained an absolute right to defend by paying into Court the sum indorsed on the writ ; but in the case of a specially indorsed writ the defendant has no such right, and final judg- ment may be signed against him though he is willing to pay the money into Court. In practice, however, this would only in very exceptional cases be done ; and if the defendant's affidavits show anything like a hona fide defence, the inclination of the Court is always to admit him to defend. (See Bcrridqe v. lloljcrfx^ W. N. 1870, 86 ; Rimnacles v. 3IeiiqHlta, L. E. 1 Q. 13. D. 416 ; 45 L. J. Q. B., C. P. & Ex. D. 407 ; Lloyds' Banlunfj Cu. v. Ogle, L. E. 1 Ex. D. 262 ; 45 L. J. Q. B., C. P. & Ex. D. 606.) (h) By the 19 & 20 Vict. c. 97, s. 6, " No acceptance of any bill of exchange, whether inland or foreign, made after the 31st day of December, 1856, shall be sufficient to bind or charge any person, unless the same be in writing on such bill, or, if more than one part of such bill, on one of such parts, and copied by the acceptor or some person duly authorised by him." A drawee of a bill may accept conditionally, though the holder is not Ijound, as against previous parties, to take such BILLS OF EXCHANGE. 167 2. The defendants are mercliants and commission agents, carrying on business at Hong Kong. acceptance {Petit v. Benson, Comb. 452) ; but if the accejjtance was in fact conditional, it will not support the allegation of an absolute accept- ance though the condition has been performed. (Langston v. Corneij, ■t Campb. 17G ; Svxin v. Cox, 1 Marsh. 170.) If. however, the drawee has accepted on condition of an extension of time for payment, the holder may sue as on a bill accepted payable at the postponed date. (Rim-ell V. PhUIlpa, 14 Q. B. 891.) There may be an acceptance of a bill before it is filled in, and an acceptance of a blank bill is an authority to the drawer to fill it up with any sum covered by the stamp {Armjidd. V. Alljwrt, L. J. 27 Ex. 42) ; and such acceptance binds the acceptor to an innocent holder for value though the drawer may have issued the bill improperly, or after a lapse of twelve years {Montagu v. Perkins, L. J. 22 C, P. 187), and in such a case the Statute of Limitations is no defence. (S.C.) A bill of exchange drawn generally may be accepted in either of the fol- lowing ways, viz., either generally, or payaljle at a particular banker's, or at a particular banker's and not elsewhere. If the drawee accepts generally he undertakes to pay the bill at maturity when presented to him. If he accepts payable at a banker's, he undertakes to pay the bill at maturity when presented either to himself or at the banker's. If he accepts pay- able at a banker's and not elsewhere, he contracts to pay the bill at maturity pro\'ided it is presented at the banker's, but not otherwise. (Hahtmd v. SMton. '> Q. B. 8G & 93.) It follows from this that it is only when the acceptor has made the bill payable at a particular banker's and not elsewhere, that in an action against ?iini it is necessary to aver in the statement of claim and prove at the trial a presentment for l)ayment at the place named. {Fayle v. Bird, 6 B. & C. 581.) In the case of a general acceptance, or even an acceptance payable on demand at a particular banker's, in an action against the acceptor, it is not neces- sary to aver and prove a presentment for payment ; and it has even been held that if the holder iieglects to present, and the banker's at whose house the bill is made payable generally fail with money of the acceptor in their hands, the acceptor is not thereby discharged, {Turner v. Ilayden, 4 B. & C. 1 ; Norton v. FAlam, 2 M. & W. 461.) One partner in a trading partnership can bind his fellow partners by accepting a bill in the name of the firm ; Imt the implied power of one partner to bind the others by his acceptance, or for the matter of that, by his indorsement of bills, does not extend to partnerships other than for trading purposes, such as a firm of solicitors. {Jledley v. Bain- hridgc, 3 Q. B. 31G ; Forster v. Machreth, L. R. 2 Ex. lf)3.) It has been held that where one partner accepts a bill intending to bind the partnership, it is necessary that he should have accepted in the name of the firm, so that the name of the firm appears on the face of the bill. An action cannot be maintained against the firm where one partner signs his own name only although the ])roceeds arc in reality applied to partner- ship purposes {Nicholson v. Ridtftts, L. J. 29 Q. B. 55), for no person who.sc name or the name of whose firm does not appear on the bill, can be made liable on it. {Becluim v. Drahe, 9 M. & W. 79, 92, 96 ; Miles' Claim, L. R. 9 Eq. 035.) The firm will be liable on the bill (that is, where it is accepted by a partner in their name) although the proceeds were not in fact applied to partnership purposes, and were never intended by the partner accepting the bill to l)e so applied, jirovided always the plaintiff was not a party to this fraud ; but the uncx- ])laincd fact that a partncr,slii[) security has been received from one of the partners in discharge of a separate claim against him, is a ])adge of fraud, or of suchpalpable negligence as amounts to fraud, which it is in- Claim on bill and original considera- tion. Conditional acceptance. Effect of acceptance of blank bill. Three forms of acceptance, and effect of each. Acceptanc3 by part- ners. Where partner accepts in his own name, firm not liable. 168 BILLS OF EXCHANGE. Claim on Mil and original considera- tion. 3. For several years i)rior to the month of June, 1875, the jilaintifl's liad been in the habit of consigning goods to the defendant for sale as their agents, and the defendants had been in the habit of consigning to the plaintiffs for sale as their agents ; and each party always received the price of the goods sold by him for the other ; and a balance was fi'om time to time struck between the parties and paid. On the 1st of June, 1875, the moneys so received by the de- fendants for the plaintiifs, and remaining in then' names, largely exceeded the moneys received by the plaintiflFs for the de- fendants, and a balance of £ was accordingly due to the plaintiflFs from the defendants. 4. On or about the 10th of June, 1875, the plaintiflPs sent to the defendants a statement of the accounts between them, showing the said smn as the balance due to the plaintiflFs from the defendants, and the defendants agreed to the said statement of accounts as correct, and to the said sum of £ as the balance due by them to the plaintifFs, and agreed to pay interest on such balance, if time were given to them. 5. The defendants requested the plaintiflFs to give them three Directors of joint- stock, mining, and railway companies have no power to iiceept bills. Acceptance by agents. cumbent on the party who takes the security to remove by showing either that the party from whom he received it acted with the authority of the rest of his partners, or that he himself had good reason to believe so. {Levcvson v. Lane, \^ C. B. N. S. 278 ; L. J. 32 C. P. 10 ; IMlhut v. NevU, L. E. 4 C. P. 354 ; affirm, in Ex. Ch. L. R. 5 C. P. 478.) There is no implied authority in a director of a joint-stock company, not being a trading partnership, to accept bills on the part of the com- pany {Brumnli v. Roberts, 3 Bing. N. C. 963) ; nor is there any such authority in the directors of a mining company to bind the shareholders by making notes or accepting bills. {Dlckinxoji v. Valjjy, 10 B. & C. 128.) A railway company incorporated in the usual manner cannot draw, accept, or indorse bills (Bafemany. Mid- Wales Railway Co., L. E. 1 C. P. 499) ; nor has a company incorporated under the Companies Act, 18G2, this power, unless it is given by the memorandum and articles of association. {^Peruvian liaUivay Co. v. Thames and 3Iersey Marine Insurance Co., L. E. 2 Ch. 617.) An agent accepting a bill must be careful to make the fact of his agency appear on the face of the bill, for the law is that an agent will be personally liable to third persons by drawing, indorsing, or accepting in his own name, unless he unequivocally show on the face of the writing that he signs only in a ministerial capacity. (See Thomas v. Bishop, 2 Str. 955 ; Owen v. Van Osier. 10 C. B. 318 ; 3Lirr. v. Charles, 25 L. J. Q. B. 119.) Where an agent acting within his authority accepts a bill for his principal, the latter is of course bound ; but a person may be bound though he has not himself accepted, nor has his agent done so for him, for if the drawee accredit the bill by acknowledging the hand- writing of the acceptance to be his, before the plaintiff took it, he cannot afterwards exonerate himself by showing that the acceptance was forged. {Leach v. Buchanan, 4 Esp. 226.) BILLS OF EXCHANGE. 169 months' time for papiient of the said smn of £ , and the plaintiffs agreed to do so upon the defendants accepting the bills of exchange hereinafter mentioned. C. The plaintiffs thereupon, on the lath of June, 1875, drew two bills of exchange upon the defendants, one for £ and the other for £ , both payable to the order of the plaintiffs three months after date, and the defendants accepted the bills. The said bills became due on the of September, 1875, and the defendants have not paid the bills, or either of them, nor the said sum of £ . The plaintiff's claim £ , and interest until judgment. Claim on bill and original considera- tion. Indorsee against Accejjfor of a Bill of Exdiange {a). 1. Messrs. M. X. & Co., on the 1st day of May, 187(j, drew Claim i)y a bill of exchange upon the defendant for £1000, with interest !^°j,°nsr at the rate of 5 per cent, per annum, payable to the order of acceptor. the said Messrs. ^l. X. & Co., one month after date. 2. The defendant accepted the same. 3. Messrs. M. X. & Co. indorsed the said bill to the plaintiff. 4. The said bill became due on the 4th day of June, 187G, but the defendant has not paid it. Tlie plaintiff claims £1000, and interest at the rate of 5 per cent, fi'om the date of the l)ill until judgment {b). {a) The plaintifE's title to sue consists in this, that some holder of the bill has indorsed it to him, and then delivered to him the bill with intent to transfer the property. The intention to transfer the property in the bill is essential, for the defendant may. if he can, show that the bill was never delivered to the plaintiff as indorsee, but only as airent for another, (Adnms v. Jonrs. 12 Ad. & E. 455.) or that it had been delivered to the plaintiff, on a condition which had not been complied with. {Bell v. Ingcfitrc, 12 Q. B. 317.) In the form given above there is only one indorscr and one indorsee, the plaintiff ; but it constantly happens in practice that on a bill there are several indorsers and several indorsees ; and this being so, the question frequently arises whether in the statement of claim it is necessary to set out the fact of all the indor.scments one after another. Previously to the Judicature Acts the rule was that where the first indorsement was made 'ui hlank, the bill became jiayalile to bearer, and the holder micrht then state an indorsement from the payee to himself directly, though there were intermediate special indorse- ments {Wallirr V. Mticdomld, 2 Exch. 527); and it is submitted that there is nothing in the new practice to alter the law on this point. Where, however, the first indorsement is not in blank, but is a special indorsement, it will be necessary to aver an indorsement by the first indorsee, and so on until either an indorsement in blank by some in- dorscr is obtained, or an indorsement direct to the plaintiff ; otherwise there would be a flaw in the plaintiff's title to sue ou the bill. (J)) In the absence of agreement, bills of exchange and promissory What necessary to consti- tute title by endorse- ment. How en- dorsement pleaded where in- termediate transfers. Interest on bills. 170 BILLS OF EXCHANGE. Statement of Defonc Defence 1. Tlic bill of exchange mentioned in the statement of .sitlera-°°" claim was drawn and accepted nnder the circumstances hereiu- tion." after stated, and except as hereinafter mentioned, there never was any consideration for the acceptance or pajonent thereof by the defendants. 2. Shortly before the acceptance of the said bill, it was agreed between the said IMessrs. M. N. & Co., the drawers thereof, and the defendants, that the said Messrs. M. N. & Co. should sell and deliver to the defendants, free on board ship, at the port of , 2000 tons of coals, dm-ing the month of , and that the defendants should pay for the same by ac- cepting the said Messrs. M. N. & Co.'s ch-aft for £1000, at one month. 3. The said Messrs. M. N. & Co. accordingly drew upon the defendants, and the defendants accepted the bill of exchange now sued upon. 4. The defendants did all things which were necessary to entitle them to delivery by the said M. IST. & Co. of the said 2000 tons of coal nnder their said contract, and the time for deliveiy has long since elapsed ; but the said Messrs. M. N. &, Co. never delivered the same, or any part thereof, but have Interest on notes carry interest ; but there is an important distinction, as to the time bills. from which the payment of interest runs, between the cases where a bill or note is expressly made payable with interest and the cases where the liability to pay arises by implication of law. The distinction is this, where the bill or note is expressly made payable with interest, it is payable from the date of the note, as in the above form (Hlcliards v. Iticluirds, 2 B. & Ad. 447) ; but where the instrument is silent as to interest, it is payable only from the time when the instrument became due. Upon a bill or note payable on demand generally, not specifying interest, interest is given from the time of demand proved {Blancy v. Ilendrichs, 2 W. Bl. 760 ; In re East of England Banhing Co., L. E. G E(i. .3(i8 ; afRrmed. L. R. 4 Ch. 14) ; and where no demand is proved, from the issuing of the writ. {Fkrcc v. Eothergill, 2 Bing. N. C. 167.) The indorsee of a bill may sue the acceptor for interest although he has taken another bill from the defendant for the amount of the first, which has been duly paid. {Lumlcy v. Musgrare, 4 N. C. 9.) Rate of The rate of interest allowed on inland bills is £5 per cent., unless interest another rate is mentioned in the bill or note. {Kccne v. Keciw, 27 L. J. chargeable. C. P. 88.) On foreign bills interest is recoverable at the rate of interest at the place where the bill was drawn, accepted, or indorsed, as the case may be, according to the liability of the party sued. {Allen v. Kcmhlc, 6 Moore, P. C. 314 ; Glhls v. Fremont, 9 Ex. 2o.) BILLS OF EXCHANGE. 171 always refused to do so, whereby the consideration for the de- Defence fendant's acceptance has wholly failed. .'"° °°"' ^ •' , . , sidera- 5. The plaintiffs first received the said bill, and it was first tion." indorsed to them after it was overdue. 6. The plamtiflFs never gave any value or consideration for the said bill. 7. The plaintiffs took the said bill, with notice of the facts stated in the 2nd, 3rd, and 4th paragraphs hereof. Eejyhj. 1. The plaintiff joins issue upon the defendant's statement Reply, of defence. 2. The plaintiff gave value and consideration for the said bill in manner following, that is to say, on the day of , 187C, the said Messrs. M. N. & Co. were indebted to the plaintiff in about £ , the balance of an account for goods sold from time to time by him to them. On that day they ordered of the plaintiff further goods to the value of about £ , which last-mentioned goods have since been delivered by him to them. At the time of the order for such last-mentioned goods it was agreed between Messrs. M. X. & Co. and the plaintiff, and the order was received upon the terms, that they should indorse and hand over to him the bill of exchange sued upon, together with various other securities on account of the said i:»revious balance, and the price of the goods so ordered on the said of , 187G. Pursuant to such agreement, the said bill sued upon was thereupon on the same day indorsed and handed over to the plaintiff. Indorsee against Accq^tor on a Bill accepted 'pnijahle at a 2Jarfici(lar place, and not eheivhere. 1. Messrs. A. B,, on the 1st day of May, 1876, drew a bill Claim of exchange upon the defendant for £000, payable to tlie order ;"J°^^°^^j. of the said Messrs. A. B. one montli after date. of hill ray- 2. The defendant accepted the said bill, making the same ■'^,'|[.^;Jy,.„. payable at Messrs. J. C. & Co.'s banking house, L. Street, place. London, and not otherwise or elsewhere. 3. Messrs. A. B. indorsed the said bill to the })laintiflf. 4. The said bill became due on the 4th of June, 187(>, and on that day it was duly presented for payment at ]\Iessrs. 172 BILLS OF EXCHANGE. J. C. & Co.'s banking- liouse, L. Street, London, aforesaid, and was dish()nt)ured. The plaintiff claims £100, and interest from the 4tii of June, 1876, nntil judgment. Claim against drawer for non-accept- ance by drawee. Indorsee against Dr aver for Default of Acceptance (a). 1. The defendant, on the 1st day of May, 1876, drew a l;)ill of exchange upon C. F. of Y., for £1000, payable to the order of Messrs. H. F. Brothers, of B., one month after date. 2. The said Messrs. H. F. Brothers indorsed the said bill to the plaintiff. 3. The said bill was duly presented to the said C. F., for acceptance ; but he reftised to accept the same. Present- ment for acceptance. Present- ment of bill payable a certain time after sight. (ft) A presentment for acceptance is not necessary except in the case of bills payable at or after sight (Bayley on Bills, 6th ed. 215) ; and since the 33 & 34 Vict. c. 74, s. 2, assimilating bills and notes payable at and after sight in all respects to bills payable on demand, it is doubtful whether acceptance is even necessary in this case ; but as the drawee is not liable on the bill till he accepts it, it is always desirable as soon as possible to present the bill for acceptance that his name may be got on to it. The drawee may require that the bill should be left with him for twenty- four hours before determining whether he will refuse or accept ( Van Diemcn'ii Land, Ban7iof,Y. Victoria, Bank of, L. E. 3 P. C. .526, 543) ; and even though the drawee may have put his name on to the bill, he may cancel or revoke his acceptance before he parts with the bill. ( Cox v. Troy, 5 B. & Aid. 474.) If the drawee refuse to accept the bill according to its terms, an action on the bill lies against the drawer, or any indorser, im- . mediately, although the time of payment is not come. {Milford v. Mayer, I Doug. 55 ; Whitehead v. Walker, 9 M. & W. 506.) But to ground the action as against the drawer or any indorser, due notice of the refusal to accept must be given, and if notice is not given, the effect is that the parties liable on the bill are discharged. (Roscoe's Nisi Prius, 13th ed. 366.) In the statement of claim the presentment of the bill for accept- ance, and the notice of dishonour must be distinctly averred as essential to the cause of action ; if they are excused on any ground the matter of excuse must be specially averred, {Burgh v. Lc/jgc, 5 M. & W. 418, 421.) As already stated, a bill payable at a certain time after sight or at sight, must be presented for acceptance. This is necessary in order to fix the time of payment, for the sight by which the time of payment is regulated, is that of the drawee when the bill is presented to him for acceptance. There is no rule requiring a bill to be presented for accept- ance within so many days or weeks after it is issued, and it may very well happen that a bill may circulate for some time and obtain on its back the names of half a dozen indorsers before it is seen by the drawee and before therefore it has been accepted. The only rule upon the sub- ject is that the bill should be presented for acceptance within a reason- able time, but what a reasonable time is, depends upon the circumstances of each case, and is a mixed question of fact and law. (Mcllish v. Bamlon, 9 Bing. 416 ; Midlick v. Badaki.sscn, 9 Moo. P. C. 46. See also Chartered Mercantile Bank of India, ,)'r., v. Dickson, L. E. 3 P. C. 574.) BILLS OF EXCHANGE. 173 4. Due notice of the dishonour of the said bill was given to the defendant, but he has not paid the amount of the said bill. The plaintiff claims : — Indorsee against Drawer of Bills of ExcTiamje (a). 1. The defendant, on the 13th day of April, 1877, drew two Claim by bills of exchange upon Messrs. G-. & Co., one for £700 and the ^"ahisT other for £760, both payable to the defendant's order three drawer months after date, and the said Messrs. G. & Co. accepted the said bills. 2. The defendant indorsed each of the said bills to one F, Gr., who indorsed the same to the plaintiff. 3. The said bills became due on the 16th day of July, 1877, when they were duly presented for papnent, but were dishonoured. 4. Due notice of the dishonour of the said bills was given to the defendant ; but the defendant has not paid the same or either of them. The plaintiff claims : — Defence. Accommo- dation and transfer after maturity without value. Statement of Defence. 1. The bills sued on were drawn l)y the defendant for the accommodation of a person named W. G., and the defendant received no value or consideration for dra^^'ing the same. 2. When the said bills became due they were in the hands of a person named L. V., to whom they had been indorsed by the said W. Gr. The said L. V. claimed only £G0 as agamst the defendant upon the said bills, and it was agreed between the said L. V. and the said W. G. that, upon payment by the defen- dant to the said L. V. of £G0, the said bills should be cancelled and given up to him. The defendant paid the said sum of £00 to the said L. V. 3. The said W. G. having obtained the said l)ills from the said L. v., did not return them to the defendant or to the said L. v., but, without having any right so to do, dealt with the said bills, and transferred them to the plaintiff, after they became due as aforesaid, and without any value or consideration. 4. The plaintiff is not the lawful holder of the said bills, and is not entitled to sue the defendant on them. {a) The acceptor is the party primarily liable on a bill of exchange, by Acceptor which is meant that the h(dder of the bill at the time it falls due must primarily seek payment from him before he resorts to the drawer or any of the in- liable — 174 BILLS OF EXCHANGE. T). Tho defendant denies that he received due notice of the dislionour of the said hills as alleged. Claim by iutlorsee against drawer excusing notice of dishonour. notice of dishonour. Present- ment for liayment- days of irrace. Where pre- sentment to he made. Indorsee, aijaiust Braivcr for Drfault of Payment, alleging Notice of Diahonour, and aJtcrnativelg excusing Notice of Dis- honour (a). 1. On or about the 21st day of May, 1875, the defendant drew a hill of exchange, addressed to Messrs. S., H. & Co., What ex- ciLses from notice of dishonour. dorscrs, where there are indorsers. The drawer and indorsers are spoken of as being sureties for the payment of the bill, and as only liable on the default of their principal. It is necessary, therefore, to the plaintiff's cause of action, when he is suing on a bill against the drawer or the indorsers, that he should duly present the bill for payment when it falls due. As is well known, on bills of exchange and promissory notes days of grace are allowed ; and in the case of inland bills or notes the time to pre'sent a bill for payment is on the third day after, and exclusive of tho day of becoming due. (TassellY. Lnvla, 1 Ld. Eaym. 743.) When the last day of grace falls on a Sunday or Christmas Day, or on a Good Friday, or on a Fast-day, it is to be presented on the day next before those respective days ; but by the Bank Holidays Act, 1871 (34 & 35 Vict. c. 17), when the last day falls on a bank holiday, the presentment is to be on the next follow in g day. Presentment must be made, although the acceptor has become bankrupt, and where he is dead, it must be made to his executors or administrators, or if there be none, at the house of the deceased. (Chitty on Bills, 9th edit. 339.) A bill payable at a banker's must be presented within banking hours {Parker v. Gordon, 7 East. 385) ; but presentment to a banker's clerk at the clearing-house is sufficient {Iie)jnoldsY. Chettle, 2 Camp. 596) ; and presentment at eight in the evening at the private residence of a merchant is good. {Barclay V. Uailey, 2 Camp. 527.) It has been already stated (afite, 167) that where a bill has been accepted payable at a particular place, in order to charge the apcej}tor, it is not necessary to present the bill for payment at that place unless it was made payable there and not clseivliere ; but in order to charge the drawer or any indorser, it is otherwise, for where a bill is drawn or accepted payable at a particular place, the drawer or indorser can only be rendcied liable upon presentment and dishonour at that place. {Gibh v. Mather, 8 Bing. 214 ; Saul v. Jones, 28 L. J, Q. B, 37.) In an action against the drawer or indorser not only must the plaintiff aver due presentment for payment and dishonour, he must also aver that the defendant had due notice of the same. As to what consti- tutes a good notice of dishonour, sec post, 192-193. {a) Notice of dishonour to the dran-er is unnecessary, if he had not at the time of drawing, or before the time of the bill becoming due, any effects either in the hands of the drawee or consignee, or on their way to him {JJickerdU'c y.Bolman, 2 Smith, L. C, 7th cd. 50) ; nor a reasonable expectation of having any. {Clarldge v. Daltnn, L. M. & S. 226.) The Coui-ts, however, are disinclined to dispense with notice of dishonour, and evidence that the drawer had any effects in the hand of the acceptor, though he owes him for more than the value of those effects (BlachhaviY. Boren, 2 Camp. 503), will necessitate an averment and proof of notice of dishonour ; and in general where the drawer would have any remedy over against a third person (as in the case of a bill drawn for the accommo- dation of a person to whom he endorses it) notice must be alleged. ( Cory BILLS OF EXCHANGE. 175 whereby he required them to pay to the defendant or his order 2500 francs three months after date. 2. The said Messrs. S., H. & Co. accepted the said bill. 3. The said bill of exchange was afterwards indorsed by the defendant to the plaintiff. 4. The said bill was, at maturity, duly presented by the plain- tiff to the said Messrs. S., H. & Co. for payment, and was dishonoured by them. 5. Due notice of the dishonour of the said bill was giA'en to the defendant. G. If due notice of dishonour was not given to the defen- dant, the plaintiff says that the said S., H. & Co. had no effects of the defendant in their hands wherewith to pay the same at any time during the cui'rency of the said bill, nor had the de- fendant any reason to believe that they would pay the said bill, nor has the defendant sustained any damage by reason of not having had notice of the dishonour of the said bill. 7. The said bill has never been paid. The plaintiff claims £ Claim by indorsee against drawer excusing notice of dishonour. Statement of facts excusing notice of dishonour. V. Scott, .3 B. & Aid. 619 ; Laffitte v. Shtttrr, Bing. 623.) '■ The rule is that when a person is entitled to notice of dishonour, no excuse is sufficient to obviate the necessity of -such notice, unless the defen- dant can have no remedy over." (Brett, L. J., in Turner v. Samson, 46 L. J. Q. B., C. P. & Ex. D. 167.) The doctrine already stated, as applied to the case of a drawer, will not be extended to an indorscr, unless the facts make it quite clear to an absolute certainty that such indorser could not have been damnified by want of notice. (Foster Y. Parkcr,-i6 L. J. Q. B., C. P. & Ex. D. 77.) Whenever the want of notice is excused, the circumstances relied upon as the excuse must be stated in the statement of claim (Burgh v. Legrje, .'> M. & W. 418) ; but a mere delay in giving notice of dishonour, unavoidable or reasonable, in the circumstances of the particular case need not be specially excused, but may l)c averred as due notice of dishonour. {Firth v. Thrush, 8 B. & C. 387 ; Liindie v. llohcrtsdii, 7 East, 231.) The effect of a promise to pay a dishonoured bill has been stated thus by Byles, J. : "A promise to pay may operate either as evidence of notice of dishonour, or as a prior dispensation, or as a subsequent waiver of notice. Whether made after, or even Ijcfore, the time for giving notice has expired, a promise to pay is always evidence from which a jury may infer due notice. But even where the evidence is conclusive to show that due notice was not given, ■ or where the jury refuses to draw the inference that it was given, yet a promise to pay made within the time for giving notice is a dispensing with notice, and made after that time is a waiver of notice." (Cordery V. C'oh'llk', L. J. .'{2 C. P. 210.) Where a promise to pay is relied on as excusing notice of dishonour, it ought to l)e expressly alleged in the statement of claim either as a dispensing wilh notice or a waiver of notice. See also on this subject Itahnj v. Gilbert, 30 L. J. Ex. 170, 172. Circum- stances excusing non-notice to be stated in x^lead- ing. Waiver of. 176 BILLS OF EXCHANGE. Statement of defence. Statement of Defence. 1. The defendant denies that he indorsed the bill mentioned in the statement of claim to the plaintitf. He indorsed it to one M. W., who indorsed the same to the plaintiff long after it became due. 2. It was presented for payment by the said M, W., who was aware that only S., H. & Co. Avere liable, they having received the j)roceeds thereof, and for whose accommodation it was di-awn and discounted by the said M. W. 3. Defendant denies that notice of dishonour was duly given to him. 4. The defendant, and the said M. W., had eveiy reason and right to expect tliat S., H. & Co. would pay the same. 5. The plaintiff never gave any value or consideration for the said bill, and took it with notice of the premises. Payee against drawer where acceptor dead at maturity of bill. Payee against Drawer for Default of Payment where the Acceptor ivas dead, and no Executor or Administrator apjm'nted at the time the Bill became due. 1. The defendant, on the 1st day of May, di-ew a bill of exchange upon one A. B. for £50, payable to the plaintiff or his order one month after date. 2. The said A. B. accepted the same. 3. Before the said bill became due, the said A. B. died, and when the said bill fell due, no person had become executor of the will of the said A. B., or administrator of his estate or effects. 4. The said bill was duly presented for payment at the last jilace of abode of the said A. B., but the same has not been paid. 0. The defendant had due notice of the premises, but he did not pay the said bill. The plaintiff claims £ Payee against drawer where jive- sentment for jjay- ment dis- pensed with. Payee against Drawer for Default of Payment, ivhere the Defendant disjjensed with Presentment for Payme?it. 1. The defendant, on the 1st of May, 187G, drew a bill of exchange upon one C. D. for £1000 payable to the plaintiff one month after date. 2. When the said bill became due, the defendant requested BILLS OF EXCHANGE. 177 the plaintiff not to present the said bill to the said C. D. for payment, and discharged the plaintiflF from so jjresenting it. 3. The said C. D. has not paid the said bill, whereof the de- fendant had notice. 4. The said bill still remains unpaid. The plaintiff claims : — Drawer, icliere Bill is made ixiycibh to his Order, against Accepto): [The plaintiff has proceeded here against the defendant by means of a specially indorsed ^Tit under Order III. r. G, and on the ^M'it the bill of exchange is set out. He then delivers to the defendant a notice in lieu of statement of claim under Order XXI. r. 4, to the effect that his claim is that which appears by the indorsement on the vnit, and fixing a place of trial.] Payee against drawer where pre- sentment for pay- ment dis- jienseJ with. Drawer against acceiitor. Where plaintiff" ha.s pro- ceeded by a specially endorsed writ. Statement of Defejice. 1. The defendant says that he accepted the bill of exchange Defence of mentioned in the indorsement of the writ in this action for the ^n^^j^^i. . price of goods sold, and to be delivered by the plaintiff to the tion. defendant, and that there was no other consideration for the acceptance or payment of the said l)ill of exchange by the defendant. 2. That the defendant was always ready and willing to accept delivery of the said goods pursuant to his contract in that behalf, but the plaintiff did not deliver or cause to be delivered the said goods to the defendant pursuant to his con- tract in that behalf, and that all consideration for the accept- ance or payment of the said bill by the defendant wholly failed through the default of the plaintiff and his agents in not de- livering or causing to be delivered the said goods to the defendant pursuant to the said contract. Holder of a Jiill against the Arreplor, the Drawer and Indorscrs Holder for Default in Payment {a). "^^^^ 1. The defendant A. B., on the 20th of June, 1877, drew ""^^l^'^' dorsers. (fl) A statement of claim of this kind is specially allowecl by the new practice. Order XVI. r. 5 says : '• The plaintiff may, at his option, join X 178 BILLS OF EXCHANGE. Holder against acoeptor, drawer, and indor- sers. a bill of exchange upon the defendant C. ]). i'or £r)()0, pay- able to the order of the defendant E. F. one month after date. •2. The defendant CD. accepted the same. 3. The defendant E. F. indorsed the said bill to the defen- dant G. H. before the same became due. 4. The defendant CI. H. then indorsed the said bill, and delivered it to one M. N., who, before the same became due, endorsed and delivered it to the plaintiff". 5. On the 24:th of July, the said bill fell due, and it was duly presented for payment to the defendant C. D. 0. The defendant C. D. failed to pay the said bill. 7. Due notice of the dishonour of the same was given to the defendants A. B., E. F., and G. H. 8. The said biU still remains unpaid. The plaintiff^ clauns against all the defendants, jointly, severally, or in the alternative the sum of £500, with interest at the rate of 5 per cent, from the 24:thof July, 1877, until judgment. Acceptor of accommo- dation bill against drawer on implied in- demnity. Acceptor of cm Accommodcdion BiU against the Drawer on the im^iUed Indemnity (a). 1. The plaintiffs, at the request and for the accommodation of the defendants, on the 20th of August, 1874, accepted two several bills of exchange, dated the 18th of August, 1874, for £1000 each, respectively di-awn by the defendants, payable to the order of Messrs. J., V. & Co. 2. The plaintiff's, as the defendants at the time of the accept- ance as aforesaid of the said bills for their accommodation and at their request well knew, accepted the said bills without con- sideration either from the defendants, or the said payees, or any one else, and have never received any consideration or as parties to the same action all or anj of the persons severally, or jointly and severally, liable on any one contract, including parties ito bills of exchange and promissory notes." (a) Where a person accepts a bill without consideration, for the ac- commodation of another, there is an implied undertaking by that other that he will hold him harmless on the bill, and that if the acceptor be compelled to pay, as he can be by any third party, ho will indemnify him. BILLS OF EXCHANGE.— FOREIGN BILLS. 179 value fi'om any one in respect of the said Ijills or their accept- Acceptor of ance thereof. accommo- ™, 1 • ./». ,. T Ti 1 • uation bill 3. The plamtiiis aItcr^\■aras were compelled to pay m respect against of the said Ijills of exchange a large sum of money, and are 'drawer, liable to pay a fiu'ther sum in respect thereof to Messrs. W., P. & Co., to whom the said Messrs. J., Y. & Co. indorsed the said bills respectively. The plaintiffs claim : — (1.) To be repaid the moneys, viz., £900, so paid by them as hereinbefore appears, as money lent to the defen- dants, and as money jmid by the plaintiffs at the request of the defendants, together with interest. (2.) To be indemnified and held harmless by the defendants against any sums ^\■llich they the plaintiffs are still liable to pay to the said holders of the said ])ills. (3.) Such farther and other relief, &c. Foreign Bills of Exchange {a). Indorsee cujainst Acceptor for Default in Pcujment. 1. On the day of March, 1872, at Venice, in the king- dom of Italy, Mr. H. B,, by his foreign bill of exchange («) Foreign bills as distinguished from inland bills are such as are dravni or payable or both abroad. A bill of exchange hjn-lmd facie an inland bill, and therefore in the case of an action brought on a foreign bill, the statement of claim ought to state that it is a foreign bill. (Byles on Bills, 12th ed. 'Mo.) Foreign bills are often drawn in parts, all the parts together making what is called a set. " Examples or parts of the bill are made on separate pieces of paper, each part being num- bered and referring to the other parts. Each part contains a condition that it shall continue payable only so long as the others remain unpaid. These parts should circulate together ; or one may be forwarded for ac- ceptance while the other is delivered to the indorsee, thus relieving him from the necessity (jf forwarding his part for acceptance, but giving him the indorsee's security immediately, and diminishing the chances of losing the bill. Every transferor is bound to hand over to his transferee all the parts of thebillinhis possession." (Byles on Bills, 12th ed. :5!K).) The whole set, of however many parts composed, constitutes but one bill, and the regular payment and cancellation of any one of the j^arts extin- guishes all. J'ut as between hvndfdc holders for value of different ])ai-ts , v. A'enmlnj, 12 M. & W. IB!).) BILLS OF EXCHANGE, &c.— PROMISSORY NOTES. 183 RqdiJ. 1. The plaintiff denies tlie 1st and 2nd paragraphs of the Promissory defendant's statement of defence. He says that the said pro- ^^^^^ niissoiy note was not given as papiient or part payment of agaiust any bet or ^Yager made between the plaintiff and the defendant maker on a on the result of the races, but was given by the defendant able by in- to the i)laintiff in payment of money lent by the plaintiff to stalments. the defendant. Particulars of the money so lent have been delivered to the defendant. 2. As to the defendant's counter-claim, the plaintiff does not admit that he di-ew the bill of exchange luentioned in the 3rd paragraph of the statement of claim upon the defendant. ;5. The defendant did not accept the said bill, nor has he paid it. 4. If the defendant did accept and pay the said bill (which the plaintiff does not admit), he accepted the same of his own accord, and not at the request or for the accommodation of the l)laintiff. Rpjoinder. The defeiulant joins issue upon the plaintiff's reply. Indorsee against M ulcer for Default of Payment. 1. The defendant, on the 10th day of October, 1877, by his Indorsee promissoiy note, promised to pay to Messrs. F., E. & Co. or ^^^^gj._ order £300 two months after date. 2. The said Messrs. F., E. & Co. indorsed the said note to the plaintiff. 3. The said note l^ecame due on the 14th day of December, 1877, bnt the defendant did not pay the same. The plaintiff claims, &c. Indorsee against Malcer and Tndorser for Default of Payment (a). 1. The defendant A. B., on the day of , 1870, by indorecc liis promissoiy note, promised to pay to Messrs. W. & C. or j^f.^^"'^ ^^,„i order £]()() one month after date. indorser. (a) lliis mode of joining in the same action both indor.scr and maker, i« autliorizcd by the new practice. (See ante, p. 177.) In an action on 184 BILLS OF EXCHANGE, &c.— PROMISSORY NOTES. Promissory note. Indorsee against maker and indorser. Defence of alteration. Defence. No presen- tation for payment. No notice of dis- honour. Alteration. 2. ]\Icssi-s. W. & C. indorsed the said note to the defendant CD. 3. The defendant CD. indorsed the same to the plaintiff. 4. At maturity the said note was duly presented for pay- ment, but was dishonoured. 5. Due notice of the dishonour of the same was given to the defendant C D. 6. The said note still remains unpaid. Tlic plaintiff claims against the defendants A. B. and C D. jointly, severally, or in the alternative, the sura of £100, and interest from the date of payment of the bill until judgment. Staiemeni of Defence of the Defendant A. B. The defendant A. B. says that after the said promissor}' note was made as alleged in the 1st paragraph of the statement of defence, and after it was issued, it was materially altered without the consent of the defendant A. B. by the time for payment being altered from two months after date to one month after date. Statement of Defence of the Defendant C. D. 1. The defendant C D. does not admit the allegations of the 2nd and 3rd paragraphs of the statement of claim. 2. He denies that the note was duly presented for payment. 3. The defendant C D. further says that due notice of the dishonour of the said note was not given to him. 4. After the making of the said promissory note, and after it was issued, it was materially altered without the consent of the defendant CD. by the time for payment being altered from two months after date to one month after date. Payee against Maler of the Note for Default of Payment. [The plaintiif in tliis case has proceeded ])y specially indorsed writ under Order III. r. G. The promissory note sued on appeared on the face of the writ. Then follows] the note afi^ainst an indorser, the plaintiff must allege and prove : 1st, the making of the note; 2nd, the indorsement of the defendant; 3rd, the presentment for payment at the place specified, if any is specified ; 4th, the default in payment ; and 5th, due notice of dishonour. BILLS OF EXCHANGE, &c.— PROMISSORY NOTES. 185 Xotke ill lieu of Statement of Claim. Promissory 1. The plaintiff claims principal and interest due on the ^°J^"^ promissory note indorsed on the writ. against 2. The plaintiff proposes to try this action at M. Troeeediu ■ liy specially iudoreed Statement of Defence. writ. 1. The defendant says that there never was any value or Ocfcice. ■consideration for the making or delivering of the said note, and the plaintiff has always held the same without any value or •consideration whatever. 2. Before and at the time of the making of the said note, the defendant was, as the plaintiff well knew, the managing idirector of the B. L. S. Co., Limited. 3. By an indenture of mortgage, bearing date the 29th day May, 187G, the plaintiff advanced to the said company the sum of £G500, subject to the covenants and provisions of the said indenture, 4. By the said indenture the plaintiff covenanted not to call in the said sum of £6500, or any part thereof, before tlie year 1879, provided the covenants and agreements therein con- tained were performed and observed. 5. The said covenants and agreements have been performed and observed. G. The said promissory note was, as the plaintiff well knew, made and delivered by the defendant only as the agent for and on behalf of the said comijany and in respect of and as collateral security for the sum of £500, part of the said siun of £G500 then advanced as aforesaid. 7. It was agreed between the plaintiff and the defendant as such agent as aforesaid, that the said note should be held subject to the covenants and provisions of the said indenture, and that the defendant should not in any way be personally liable thereon. Reply. 1. The plaintiff" joins issue on the statement of defence, lU'i.iy. except so far as it adn)its the allegations in the statement of claim. 2. As to the indenture of mortgage mentioned in the 3rd 186 BILLS OF EXCHANGE, &c.— PROMISSORY NOTES. rroniisson note. Payee against maker. Kei.ly. and 4 til paragraphs of the statement of defence, the said indenture was executed prior to the making of the said promis- sory note and the agTcement mentioned in the 7th paragraph of the statement of defence, even if made (which the plaintiff denies ), was contemporaneous witli the making of the note, and was not in \\Titing. 3. If any parol arrangement made at the time of the making of the said promissory note can be gone into in this action, the plaintiff will contend that such arrangement was not as stated in the defence, but that the £500 secured by and the conside- ration for the said note was advanced by the plaintiff to the defendants on the arrangement that the defendants or the said company should cover over a yard comprised in the said inden- tm-e Avith an iron or glass roof, and that the said note for £500 should only be treated as subject to the covenants and provi- sions of the said mortgage indenture in case the said roof should be completely constructed within twelve months from the date of the said promissory note. 4. The said roof was not completed within the said time, and has not yet been commenced. Imlorsee against maker. Indorsee against Maimer for Non-jjayment of tu:o Notes, and for Money Lent. 1. The defendant, by his promissory note made and dated the 2nd of August, 1875, promised to pay to one A. B. or his order the sum of £50 on demand. '2. The said A. B. indorsed the said note to the plaintiff. 3. The defendant, by his promissory note made and dated the 10th of August, 1875, promised to pay to one M. N". or his order the sum of £1)5 one month after date. 4. The said M. N. indorsed the said note to the plaintiff. 5. The note mentioned in the 1st paragraph and also the note mentioned in the 3rd paragraph fell due on the 14th of Septem- ber, 1875, but the defendant has not paid either of the said notes. G. Between the month of Februar}', 1875, and the month of August, 1875, the plaintiff lent to the defendant, at the defen- dant's request, sums of money amounting in the whole to £750. Particulars of the amounts lent and dates have been delivered to the defendant. 7. Prior to and at the time of the plaintiff lending to the BILLS OF EXCHANGE, &c.— BANKERS' CHEQUES. 187 defendant any of the sums of money mentioned in the last paragraph, it was agreed by and between the plaintiff" and the defendant that the defendant should pay to the plaintiff" in- terest at the rate of 20 per cent, per annum upon all sums so lent and advanced, and there is now due and owing to the plaintiff" in respect of the said hiterest the sum of £71 2s. Particulars of such interest have been delivered to the defendant. The plaintiff" claims : — ■ (1.) £145, the amount of the two promissory notes mentioned in the 1st and 3rd paragraphs, and interest thereon. (2.) The respective sums of £750 and £71 2s. Promissory notes. Indorsee against maker, and claim for money lent and inter- est on it. Bankers' Cheques («). Fai/ee ofClieque againd Drawer for Xon-2)ai/mcnt of CJieque. 1. The defendant on the day of , 1876, by his cheque Hankers' or order for the payment of money directed to Messrs. C. & p'^yg"®^' Co., bankers, required them to pay to the plaintiff" or order against di-awer. (fl) Cheques on bankers resemble bills and notes thus far, that they are negotiable, so as to entitle the holder to sue the drawer or indorser ; but no acceptance is necessary, nor ,are there days of grace, and the drawer is the principal debtor, as the maker of a note, and not a surety for the acceptor as in the case of bills. The holder of the cheque cannot compel the bankers on whom the cheque is drawn to pay it to him, because in the absence of any express undertaking on their part, there is no privity of contract between the parties ; but if the bankers refuse to pay, the holder's remedy is against the drawer of the cheque, and the indorsers, if there are any such. If the bankers have improperly refused to honour the drawer's cheque, they having assets of his in hand, they are liable in an action to him. (See ante, p. HtJ.) As l>etwccn holder and dran-rr, mere delay in presenting the cheque for payment short of six years, is no answer unless the defendant has been prejudiced by the delay ; as liy the failure of the b?nk after the drawing of the cheque. {Jlobuimm v. Ilavlixford, 9 Q. B. '^1 ; LaivH v. Ihind, L. J. 27 C P. 76.) If in consequence of such delay the cheque becomes valueless by the failure of the bank, the drawer is released from liability ; and in order to avoid this risk, the bearer must present it either himself or through his banker on the day following the day of receipt. {Alr.rander V. Jimrrhjicld, 7 M. & Gr. lOfJl.) T>ut if the holder of the chc(iue does not live in the same place with the drawer, he may send it to his banker or other agent by the post of the next day after he receives it. However, as between holder and v«r/o/wr the plaintiff is bound to show greater diligence in endeavouring to obtain payment. (H Kent, Com. 88, 104 ; Munlf V. Jiroirn, 4 N. C. 2(J(!.) The clicfine having been presented and dishonoured, it is the holder's duty, if he intends suing either the drawer or the indorser on the dis- honoured cheque, to give due notice of dishonour ; and notice of dis- Differencc between cheques and bills. Holder cannot compel the bankers to pay it. Effect of delay in presenting the cheque. Duty of the holder upon dis- 188 BILLS OF EXCHANGE, &c.— BANKEES' CHEQUES. Clieques. Payee ugainst drawer. Indorsee against indorser. Defence. the sum of £50, and lie delivered the said cheque to the plaintiti'. 2. The plaintiff duly presented the same for payment, but it was dishonoured. 3. Due nt)tice of tlie dishonour of the said cheque was given to the defendant. 4. The said cheque still remains unpaid. The plaintiff claims, &c. Indorsee of Cheque against Indorser for Non-payment. 1. Messrs. Y. & Co., on the day of , 1877, by their cheque or order for the payment of money directed to INIessrs. , bankers, required them to pay t(j the defendant or order the sum of £70. 2. The defendant indorsed the same to the plaintiff. 3. The said cheque was duly presented for payment, and was dishonoured. 4. Due notice of the dishonour of the said cheque was given to the defendant, but he has not paid the same. The plaintiff claims : — Statement of Defence. 1. The said cheque was not duly presented for payment. On the contrary, the plaintiff kept the said cheque in his possession without presenting it for payment an unreasonable time, viz., one month. 2. At the time the defendant indorsed the cheque to the plaintiff, Messrs. Y. & Co., the di-awers thereof, had a consider- able balance at their bankers on which the said cheque was drawn, and they remained in good credit with their said bankers for three weeks after that time. 3. If the plaintiff had presented the cheque for payment at any time within three weeks after the defendant indorsed the same to him, he would have received payment thereof. 4. At the end of the aforesaid three weeks Messrs. Y. & Co. were adjudicated baiiki'upt, and the defendant says that it was altogether due to the unreasonable delay and laches of the honour of honour is only dispensed with in the case of the drawer where the the cheque, drawer had no effects in the hand of the banker, and had no reasonable expectation that the cheque would be jiaid. (See Car cm v. Duchivorth, L. R. -1 Ex. HI 8.) BILLS OF EXCHANGE, &c.— BANKERS' CHEQUES, 189 plaintiif in not presenting the cheque as already set out, tliat cheques. the same was not paid. Indorsee 5. The defendant did not receive due notice of the dishonour ?sainst indorsee. of the said cheque. Defence seiting out Want of Consideration, Failure of Considera- tion, Fraud, dr., to action vpon a Cheque, where Plaintiff 2)roceeded hi/ a sj)ecialltj indorsed Writ, and delivered a Notice in lieu of a Statement of Claim. 1. This action is brought l)y the phiintifFs as executors of the said W. W., to recover the sum of £oOO and interest thereon, being the amount of a cheque alleged by the plaintiflFs to have been drawn by the defendants on the 17th of Xovember, 1875, on their bankers, the London and "Westminster Bank, South- wark Branch, in favour of A. "W., the brother of the said W. TV., or order, and to have been indorsed by the said A. W. to the said W. W. {a). 2. The defendants do not admit that they made or drew the said cheque. 3. The defendants deny that the said A. "\V. indorsed the said cheque to the said AV. TV. ; and they say that the plaintiffs are not executors of the said "\Y. "\V., or the lawful holders of the said cheque. 4. In case the plaintiffs should prove that the said cheque was drawn and indorsed as alleged by them, then the defendants say that the same was dra^^^l by the defendants for a consideration which wholly failed as between them and the said A. W., and the same Avas indorsed to the said W. TV., and he and the plaintiffs always held the same without any value or con- sideration. 5. They further say that the said cheque was drawn by the defendants in consideration and on the condition that the said A. W. would forthwith consign and deliver to the defendants 29G quarters of malt to be sold by them for the said A. T\'. for (a) This mode of commencing the defence may seem ol)jcctionable, and open to the charge of prolixity : but it is necessitated by the fact that a si)ecially endorsed writ does not disclose who are the parties to the action in the same full way that a statement of claim would do, and as will be readily seen it is in this case essential to the appreciation of the cfiEectof the subseijuent paragraphs that the position of the various parties to the cheque should be defined. 190 BILLS OF EXCHANGE, &c.— BANKERS' CHEQUES. Cheque. Defence of want of considera- tion, fraud, &c Bearer of crossed cheque against drawer. ^Vliat iimounts to a crossing 2, is of importance. There it was decided that a creditor to whom a cheque or other negotiable security is given on account of a pre-existing delit, holds it by an indefeasible titlc,"whether it be a cheque or bill payable at a future time or on demand. Illegality of eonsideration.'] — This is agood defence as against tlie i)arties •guilty of the illegality or those privy to it, and also as against all those to whom they have passed the bill without value ; but as against a hona jide indorsee for value without notice of tlie illegality, it is no ar(d evidence t(; contradict it, even as between original or immediate jtarties to it, yet a conteniixiraneous niemoraiidura in n-rifing is admissible for that purpose, whether on the same or a Bearer of crossed cheque against drawer. How the defence is defeated. Alteration Presump- tion of considera- tion. When want of con- sideration a defence. When not a defence. When ille- gality of considera- tion a defence. Variation of terms of the bill liy another in- strument. li)-2 BILLS OF EXCHANGE, &c.— BANKERS' CHEQUES. Hearer of erossecl ehei(uc agaiust drawer. Pcfences to Mils. Xoii-]>re- seuta- tion for liayineiit. \Vlio en- titled to notice of dislionoui The nature (if the Dotice. From whom notice should come. Tlie time within ^vhieh it must he L'iven. ;>. Tlic plaintilf atlerwarJs became the holder or bearer of the said cheque. What days are ex- cluded from the computa- tion of time. si'paratc paper. {Lccdx v. Lancnshlre, 2 Camp. 20i'5 ; Boiverbanli v. Mon- tciro, 4 Taun. 8i4.) In such a case the bill or note and the memorandum will be looked upon as one instrument, and if the terms of the instrument so created do not entitle the plaintiff to recover against the defendant at the time and in the manner in which he is seeking to recover, the defendant has a good defence. jVo 2f rest; ntat 10)1, for pa i/)iu-nt.] — The drawer and indorsers of a bill and the indorser of a note may plead that the bill or note was not duly pre- sented for payment, or that it was not presented at all, or where made payable at a particular place, not presented at such place. This will also- be a good defence to the acceptor of a bill, or the maker of a note, when the bill or note was made payable at a particular place and not else- where. As to what amounts to a good presentation for payment, see fi/itr, p. 174. iVo notice of dlgJioiioiir.'] — The drawer and indorsers of a bill, and the indorsers of a note are, as a very general rule, entitled to due notice of the dishonour of the bill or note, where upon presentation it is dishonoured ; and if such notice is not given to them they are dis- charged from all liability on the bill. There is no prescribed form of notice of dishonour, and it need not be in writing ; but proof of linow- Icdgc of dishonour is not equivalent to proof of notice ; and a mere de- mand of payment without notice of the dishonour is not sufficient.. (Hartley v. Case, 4 B. & C. 339.) The notice must convey to the mind of" the receiver the following facts : — 1. That the bill has been presentedi when due ; 2. That it has been dishonoured ; and 3. That the party ad- dressed is held liable for payment. Per Parke, B.,in Lewis v. Crompet:,. G M. & W. 403. It is not necessary that the defendant should have had notice from the holder of the bill at the time it is dishonoured ; it is- enough if he has had notice from any person who is a party liable upon it. (Cluqman v. A'caiic, 3 Ad. & E. 193 ; Lymglit v. Bryant. L. J. 19' C. P. IGO ; Harrison v. liu.icoc, 15 M. & W. 231.) It is well, however, that the holder of a bill who is desirous of suing all the parties to it, should give notice at once to all of them ; otherwise notice may not be regularly transmitted to the prior parties, who may consequently be discharged. (i?07!'e V. Tijujcr, 13 C. B. 249 ; L. J. C. P. 135.) If, however, he give notice to his immediate indorser, and he in due time to his indorser,. and so on to the drawer, the holder may sue all or any of such parties,, although there was no notice immediately from the plaintiff to the defen- dant. (Jameson v. Sirintoii, 2 Camp. 373.) As to the time within which notice should be given, the general rule with regard to inland bills- is, that where the parties do not reside in the same town, it is sufficient to send a notice by the post on the day following that on which the party sending receives intelligence of the dishonour. (Williams v. Smith, 2 B. & Aid. 49(; ; CtcHI v. Jeremy, M. & M. Gl.) It is a question of due diligence ; and distance and other circumstances may sometimes warrant a longer delay, as where the holder of the bill does not know the address of the party to whom notice ought to be given. In the latter case where- the holder is excused by ignorance from giving notice until after the usual day, the common allegation of due notice in the statement of claim is sufficient {Firth v. Thrush. 8 B. & C. 387) ; though generally an excuse for not giving notice should be specially pleaded. If the parties reside in the same town, notice must be given before the expiration of the day after that on which it has been received. (Smith v. Midlett,2 Camp. 208.) Where a party receives notice on a dies nan, as Sunday, he is in. the same situation as if he did not receive it till the next day. The 7 &: 8 Geo. 4, c. 15, provides for giving notice of dishonour, when a bill BILLS OF EXCHANGE, &c.— BANKERS' CHEQUES. 193 4. The said cheque was duly presented hj and through chequ Messrs. X. & Co., bankers, for papnent, and was dishonoured. 5. Notice was given to the defendant of the dishonoiu" of the said cheque. 6. The same still remains unpaid. The plaintiff clauns : — Bearer of crossed clieques against diuwer. or note falls dne on the day preceding Christmas Day, Good Friday, a thanksgiving day or fast day ; and the 1^4 & 35 Vict. c. 1? provides for the case of a bill falling due on a bank holiday. A Jew is not obliged to forward notice on the day of a great Jewrish festival. {Linclo v. Unsworth, 2 Camp. 602.) It is sufficient proof of a notice to show that it was sent in a letter by the post, without proving that the letter was received. (^Sanndcrson v. Orulrjc, 2 H. Bl. 50!) : and it is no answer that delay did in fact take place in the post-office. ( Woodench v. Houhhworth, 16 M. & W. 124.) When the notice must be given on a particular day, it is enough if the letter be put into the post at such an hour, that it would in the usual course be delivered on that day. {Stockeii v. CoU'tn, 7 M. & W. 51.0.) As to excusing notice, see pp. 174, 175, a7ite. Paymrnt.'] — Sec Iloscoe's Nisi Prius, 12th ed. 390, for cases as to what amounts to a good payment of a bill or note. Vuliintar// discJiavff/'.'] — As a general rule a principal debtor cannot be discharged after bivuch, except by a release under seal ; but it has for a long time been held that an acceptor of a bill or a maker of a note can be discharged from liability by the express exoneration of the holder, (See Dangwell v. Diinster, 1 Doug. 247 ; Farquliar v. Southej/, M. & M. 14 ; JIarner v. Steele. 4 Exch. 1.) It is a question how far, if at all, this rule extends beyond the parties named — acceptors and makers ; but the decision in Foster v. Batcher, 6 Exch. 839, L. J. 20 Ex. 385, is general ; and the law of foreign coixntries from which this rule is probably borrowed, extends it to indorsers and parties to bills generally. Givlnr/ time to 2Jrincipal debtor.] — The acceptor of a bill of exchange is regarded as the principal debtor, and the drawer and indorsers merely as sureties ; therefore any binding act by which the plaintiii agrees to give extra time for payment to the acceptor, will discharge the drawer and indorsers, and there is no difference between an accommodation acceptor and an acceptor for value. There must however be a binding agreement founded on a good consideration on which an action would lie if broken (Moss V. Ilall, 5 Exch. 46) ; for mere forbearance to sue the acceptor is not equivalent to giving time. {Pr'iee v. Kirhham, 3 H. & C. 437 ; L. .J. 34 E.x. 35.) Although there be a binding agreement to give time to the principal or to release him, yet if there is an express reservation of remedies against the surety, the surety is not discharged, (^liateso)b V. Goslimi, L. R. 7 C. P. 9.) Frnvd.'] — If the consideration for a 1)111 can be shown to be vitiated by fraud, of which the defendant was ignorant when he gave the bill, and if the defendant has derived no benefit from the contract, but has elected to repudiate it as soon as lie knew of the fraud, he has a defence to an action on the bill at the .viit of the party to vhom he yare it. (Mills v. Oddy. 2 C. M. & R. 103.) As if by fraudulent representations a man induces another to give him for a business more than it is worth, and takes a bill in payment, he cannot recover on the bill. (Arelier v. Bam- ford, 3 Stark. 175.) But where in the case supposed the bill is in the hands not of the person guilty of the fraud, but of an innocent indorsee or holder for value who is plaintiif, the defendant has no answer to the action, {llohlnsoii v. lieynolds, 2 Q. B. 190.) What days are excluded from the computa- tion of time. Sufficient that notice of dis- honour is Ijosted. Tlie effect of giving time for Ijaynient to the ac- ceptor of a bill or maker of a note. Between immediate parties fraud vitiates a bill. Aliter in the hands of tliird parties. 194 BILL OF LADING. Action on bill of lading for injury to goods. What a bill of lading is. Bills of lad- ing made in parts. IVliat it should contain. How far indorse- ment confers a title to the goods. No pro- perty passes where there is fraud. Eight of shipper under bill of lading retained by him as secui'ity. Bill of Lading (^0- Action on a Bill of Lcidintj for Injiirij done to Goods comprised in the Bill 1. On or nl)oiit tlic 4tli day of Juno, 1873, the plaintiffs delivered to the defendants, and the defendants received and {/() A bill of lading is a document which is signed and delivered by a ship-owner, or the master of the ship as his agent, to the shipjjer in a general ship on goods being shipped. In practice, upon the goods being shijiped, the mate usually gives the shipper an acknowledgment thereof, which is called the " mate's receipt," and the shipper on taking this to the broker or captain of the ship, receives in exchange for it the bill of lading. Bills of lading are generally made out in parts, one or more of which being sent to the consignee, one is retained by the shipper and another given to the master, captain, or ship-owner. The bill of lading, after men- tioning the shipping of the goods in good order and condition, and their destination, contains an undertaking to deliver them in the like good order and condition to the consignee or his assigns, the latter paying the agreed freight. The delivery of a bill of lading duly indorsed passes the property to the indorsee, and since the IS & It) Vict. c. Ill, the indorsee may sue on it in his own name_. The actual holder of a bill of lading though insolvent, may defeat, by a hand fide indorsement and delivery, the right of the unpaid vendor or consignor to stop in tramltu, even though the indorsee may know that the vendor or consignor was not paid, provided he did not know that the consignee was insolvent, or that bills given by the latter in payment were bad. {Ciiiiiminff v. Brown. 9 East, .500.) This doctrine would hold even where the only consideration for the assign- ment of the bill of lading is a past one, and has not been got hj means of the bill of lading. {Lcask v. Scott, -16 L. J. 57C, reversing judg- ment below and dissenting from Eodger v. Tlie Comptolr WEscomiHc cle Paris, .SS L. J. P. C. 30.) But no property passes if there is fraud in the transfer, or if there be notice by the previous indorsement that the earlier transfer was only con- ditional. ( Virtue V. Jewell, 4 Camp. 31.) Nor can a honCi fide indorsee for value interfere with the consignor's right to stop in transitu, if the ]5erson through whom the bill of lading came to him had no authority from the shipper or consignee to put it in cu'culation, the bill of lading being in this respect like an overdue bill of exchange. {Giirney v. Belirend, 3 E. & B. 622.) The 18 & 19 Vict. c. Ill, provides (sect. 2), that the extension which the Act gives to the rights and liabilities of indorsees shall not affect the right of stopi^age 'm transitu. Where the bill of lading is negotiated by way of pledge, the right to stop in transitu remains subject to the pledgee's right in respect of his advance. {In re Westdnthus, 5 B. & Ad. 817.) Upon the sale of goods where the shipper takes and keeps in his own hands a bill of lading making the goods deliverable to the shipper's order with the intention of protecting himself, the effect of his so doing is to preserve to him a hold over the goods until the vendee has fulfilled or has been ready and willing to fulfil the conditions of the sale, and the hold so preserved is not merely a right to retain possession till these conditions are fulfilled, but involves in it a power to dispose of the goods on the vendee's default, so long at least as he continues in default. {Of/ff v. Shuter, 45 L. J. 44, App.) A bill of lading after indorsement is countermandable before actual BILL OF LADING. 195 -accepted of the plaintiffs certain goods, to wit, tlie goods Actioaon described in the bill of lading hereinafter mentioned, to be j^^V. °^ . '^ . . lading for can-ied in the defendant's vessel " A.," then lying in the port injury to of London, from London to j\I., and to be there delivered goo'ls, according to the terms and subject to the conditions contained in the said bill of lading. 2. The said bill of lading was signed by the master of the .said vessel, and delivered to the plaintiffs. 3. The said bill of lading was and is, so far as is material to the present action, in the words, letters, and figures following, (that is to say : — \T]io)i follows Ihc hill of lading, ichich was in Ihe ordinanj farm.'] 4. AU conditions were performed on the part of the plaintiffs necessary to entitle them to have the said goods delivered for them l)y the defendants as aforesaid. 5. The said vessel sailed on her said voyage from London to M,, and arrived there on or about the 27th day of July, 1873. (I. The said goods in the said bill of lading mentioned were delivered by the defendants to the agent of the ]\L Railway Company at M., but were not deHvered in as good order and -condition as they were in when shipped on board the said vessel in London, but were delivered greatly damaged. 7. The damage to the said goods was caused by the negli- gence of the defendants, and was not occasioned by any of the perils or causes in the said bill of lading excepted. 8. By reason of the premises some of the said goods became and were and are of no use to the plaintiflFs, and the plaintitts ■were put to great expense in and about replacing the same, and delivery thereof, or of the goods to the indorsee, but after the indorse- When bill ment and delivery of the bill of lading and invoice of the goods as of ladin''- security against bills which are to be drawn hj the indorsers on the in- counter-" dorsces, the indorsers cannot, after having obtained the acceptances and mandable. whilst the balance of accounts is in favour of the indorsees, countermand the delivery of the goods ; and the master of the ship would be liable in trover if he acted under any such countermand. V>\\t.sciii.hlc iil\fcr if the Tialance of accounts was in favour of the indorsers. {Hailc v. Smith, 1 B. & P. :,r,-?,.) CoiisfrnctuHi, of.'] — The clause in a bill of lading by which the ship- Cunstriic- owncr is not liable for nist, breakage, or leakage is limited to the injury tion of to the goods damaged by their own rust, breakage, or leakage, and does onliii.iry not protect him from an action for damage by rust, breakage, or leakage clause in of the goods of one person to those of another person, {'llu-lft v. Yuulc bill of ^•6«.,40L. J. 402.) lading. o 2 196 BILL OF LADING. Action on the plaintiffs were further put to expense in and about repairing- I"1.°^ . certain otliers of the said ffoods. lading tor ^ injury to J- hc plaiutills claiui £;>00 damages. goods. Ad ion on Bill of Lading for Damage to Goods in ronsoq^uome of ncgYKjcnt Stoiving. Action for j_ The plaintiffs are merchants, carrvinf;: on business in the- damage to ^ ' J i^ goods City of London ; and the defendants are the owners of the wused by steamship " C." trading between London and H. negligent '■ " stowing. 2. In or about the month of August, 1877, the plaintiffs. deliTcred to the defendants at the port of H., in good order and condition, 280 bags of sugar, to be carried and con^•eyed by the- defendants' steamship " C." to London, upon the terms of a bill of lading made by the defendants, by which the said goods were^ to be delivered in the like good order and condition in Avhich they were shipped, certain perils and casualties of the sea only excepted, at the port of London aforesaid, unto the plaintiffs- or their assigns, for ft'eight at the rate therein specified to the defendants, with ^n-image and average accustomed. 8. The plaintiffs paid the said fi'eight and primage amount- ing in all to £ , and all conditions on the plaintiffs' part were performed, and the delivery of the said goods to the l^laintiffs at London in good order and condition was not pre- vented by any of the excepted perils or casualties. 4. The defendants did not deliver the said goods in the said good order and condition, bnt, on the contrary, delivered the same in a damaged and wholly unmerchantable condition. f). Such damage was cansed by the sugar becoming tainted with oxide of zinc, or some similar matter, owing to the im- proper and negligent stowiug by the defendants' servants of the said sugar and other goods shipped in the said steamship. G. By reason of the premises, the plaintiffs have lost the- value of the said sugar, and the freight aud primage paid for the same, and incurred divers charges and expenses in respect thereof. The plaintiffs claim £1000 damages. BILL OF LADING. 197 .Action 1)1/ Indorsre.^ on liiU of La din fi for Prim of Goods sold as Fart of Cargo of stranded Ship. 1. The plain tiifs fire merchants in the City of London. Action Ly Defendants are shipowners at H., and the owners of the vessel ^^'Ij^fJ^ • called the "V." lading. ' 2. In or about the month of NoTember, 187G, Messrs. A. H. & Co., of Riga, shipped on board the defendants' said Tessel, at the port of Riga aforesaid, fom' several parcels of goods to be by the defendants safely and securely carried from the said port of H., on the terms of four several bills of lading of lilce tenor, made by the defendants, by which the said goods were to ■foe delivered in the like good order and condition wherein the .same were shipped at the said port of H., certain perils excepted, for freight to the defendants in that behalf. 3. The descriptions, quantities, and marks of the said four parcels of goods so shipped under the said four bills of lading respectively, were as follows : — \_Hc're follow particulars of fjoods in quest ion. ^ 4. The said four bills of lading were indorsed ]3y the said Messrs. A. H. & Co. to the plaintilis. 5. In the course of the voyage the vessel stranded, and was taken into C. Avith her cargo, which was discliarged, and a portion of it sold. The ix'sidue was forwarded to its destination, and the vessel, having been repaned, completed her voyage toH. (',. The plaintifiFs' goods were sold by the defendants at C, and tlie proceeds thereof were recei\'ed by the defendants, and are still retained and lield by them under a claim for losses in respect of general and particular aAX'rage, and i)articular charges alleged by the defendants to ha-v'c been incm-red in respect of the said vessel, her freight, and cargo ; and the defendants claim to deduct from the said proceeds an imi)roper and excessive amount in respect of the said losses and cliarges, and refuse to account for or pay to the plaintifT's the amount due to them in respect of the sale of their goods. 7. The plaintiffs claim to be entitled to recover the amount Action by of the said prtjceeds, or the said proceeds after deducting there- |,"''^^Jig®p^£ from the tmiount properly chargeable against the plaintiff's in hiding. resi)ect of their said goods and the losses aforesaid. The plaintiffs 198 ^^^^ 0^ LADING. also claim the same as money received by tlic defendants to the use of the plaintiffs. 8. The plaintiffs also say that the defendants, for good con- sideration in that behalf, promised the plaintiffs to obtain and have a due and proper adjustment of the said losses and charges made up, and to pay and account to the plaintiffs for the said proceeds of their goods after deducting therefrom the amounts properly payable by the plaintiffs in respect of such losses and charges ; and although all things happened and all times elapsed to entitle the plaintiff's to maintain this action for the breach by the defendants hereinafter mentioned, yet the defendants have not obtained nor have they had a due and proper adjust- ment of the said losses made up ; and although the plaintiffs became and are entitled to receive from the defendants the said proceeds after deducting the amounts payable by the plaintiffs as aforesaid, the defendants have not repaid or accounted to the plaintiffs for the same, or any part thereof, in accordance with their promise in that behalf. The plaintiff's claim : — £3180, with interest thereon till papneut ; or in the alter- native, £6290 damages. Action 1)}/ Consignee of Goods on BUI of Lading for Injury fa Portion of Goods, and Loss of another Portion. Action by 1. The plaintiff' is a sugar merchant, carrying on business in consignee London. Tlie defendants A. and C. are the registered owners, of gootls ° . and in- and the defendant B. is the master of the steamship " L. Lm^of''^ 2. In January, 1877, the plaintiff bought from Messrs. iading. S. & Co., of Paris, a quantity of sugar in loaves, with instructions- to forward it per steamer, via Treport, to London, a through' fi-eight being payable for the same, in accordance with the bill of lading hereinafter mentioned. 3. The sugar was duly forwarded fi'om Paris and conveyed to by the Treport Raihvay Company. 4. On the 24th of January, 1877, the sugar was shipped by the- said railway company, in good order and condition, on board the " L.," then lying in the port of Treport and bound for London ; and the defendant B., as master of the said ship, received the same to be carried from Treport to London, upon the terms of four bills of lading signed by him as master, and to be delivered BONDS. 199 to order, of which bills of lading, being in form similiu' to one Action by another, the following is a copy : — Tt^'^'wds \Herefolloivs tlie hill of ladiiuj set out at length.'] ^n^^ in- "- "' clorsee of 5. The bills of lading were indorsed by the shipping agent of bill of the said railway company at Treport to the plaintiff. ^ ^°^* G. On the said 2-4th of January, the " L " left Treport, and amved in London on the 25th, being then, and haTing been at and before the signing of the said bills of lading and the ship- ment of the goods, nnseaworthy. 7. The sugar was not delivered to the plaintiff in like good order and condition as when shipped, but there was a short delivery of about 201 loaves, and a further quantity of about 80 loaves was delivered in a damaged condition. 8. The loss of the said 201 loaves and the damage to the other portion were caused by the negligence of the defendants, and were not occasioned by any of the perils or causes in the said bill of lading excepted. 9. By reason of the premises the plaintiff lost the value of the said 201 loaves of sugar, and the said goods so damaged as aforesaid became and were of no value to the plaintiff, and he was put to great expense in relation thereto. The plaintiff claims £ damages. Bonds {(t). Action on an Anmntij Bond. 1. The plaintiff is, &c. The defendant is, &c. I'annuit 2. On the 8th of February, 1875, the defendant executed a boiKL"^"^ ^ bond bearing that date, whereby he became bound to the I)laintiff in the simi of £1000, subject to the condition that («) A bond is a contract under seal to pay a stated sum of money. Definition It is either absolute, in which case the obligation to pay the money of ^ )_,omi_ is absolute; or conditional, in which case the money is only payable conditionally, and ceases to be payable or absolutely payalile ou the happening or doing of a certain thing, r. g., the i)aymcut of a less sum or the due performance of certain duties. If the condition is entire and unlawful, thebrmd is void (CoUins v. Blantcvn, 1 Sm. L. C. 325); but if the condition is severable and part of it is good, the bond is valid to that extent. {Yule v. Iter (in error), (I I'.r. 1". C. (Jl.) In the case of 200 BONDS. bond. Action on if tlic defendant should pay to the plaintiff £150 half-yearly an annnity ^^i the 8th day of August and the 8th day of February in every year from the date of such bond during the life of the plaintiff, the said bond should be void. 3. On the 10th of February, 1878, the sum of £300, for two of the said half-yearly payments of the said annuity, was due and payable to the plaintiff, and is still unpaid. The plaintiff claims £1000, the amount of the said bond. Action on a bond to secure the honesty, &c., of a servant. Action OR Bond to secure due Perfonnmice of Duty and against Defalcations in Accounts. 1. The plaintiff is, &c. The defendant is, &c. 2. By a bond bearing date the 1st day of January, 1870, the defendant became bound to the plaintiff in the sum of £2000, to be paid by him to the plaintiff, subject to a condition that if one J, B. C. therein described would well and faithfully discharge the duties of managing clerk to the plaintiff, and would duly, promptly, and honestly account for and pay over to the plaintiff all moneys coming into his hands on behalf of the plaintiff during the period of his service to the jDlaintiff as such managing clerk, then the said bond should be void. 3. The said J. B. C, on or about the 1st of May, 1877, ab- sconded himself fr-om his duties as such managing clerk, and has not since returned thereto. 4. The said J. B. C. did not during his period of service duly, promptly, and honestly account for the money coming to his hands as aforesaid, but appropriated to his own use the sum of £350. The plaintiff claims £2000. No particu- lar words necessary to consti- tute. alternative conditions if one becomes imjiossible, the other as a general rule becomes absolute. {Da Costa v. JDaref:, 1 B. & P. 242.) No precise form of words is necessary to create a bond ; so long as there is a writing under seal, acknowledging a delrt or denoting an intention on the part of the person who becomes bound (ol^ligor) to pay another (obligee) a specified sum of money, this is sufficient to constitute a bond. Thus " I, A. B., have borrowed £10 of C. D.," or " Memorandum that A. owes B. £10," are sufficient, (aee Addison, Contr., 7th ed. 171.) It is of course usual to introduce the words " to be held and firmly bound," but neither these nor any other formal words of a similar kind appear to be necessary. If no time is limited in a bond for payment, the money is payable on demand. BEEACH OF CONTRACT. 201 Breach of Contract. See Sale — Stock — Work and Lahour. Action for Breach of Agreement hy Defendants to make a Proj)eller Shaft, claiming Sjm-ial Damage. 1 . The plaintiffs are a Limited Company, and are the o^viiers Action for of a diT dock at 11., and at the time hereinafter mentioned had '^^'s^^^' °f •' ' an agree- agreed with the owners of the steamer "Rio Tinto" to effect ment. certain repairs to that vesseh The defendants are Ijrass and claiming ^ . special iron founders carrying on business at D. damage. 2. In or about the month of March, 1877, it was agreed by and between the plaintiffs and the defendants that the defendants, for a certain sum to be paid them by the plaintiffs, should make and cast on effectively and in a ^^■orkmanlilve manner a new brass liner to the propeller shaft of the said vessel, and should make a new brass stern bush for the same, and that the said liner and stern bush should be of good and suitable materials, and reasonably fit for the purposes for which they were intended. 3. At the time of making the said agTeement the defendants ^^•ell knew that in case the said liner or bush should be unfit for the i^m-pose for which they were intended, the owners of the said vessel would be unable to use the said vessel, and would sustain great losses in consequence thereof, and that the l^laintiffs would be responsible to the said owners in respect of such losses (a). 4. The defendants, however, did not make or cast on effec- tively or in a workmanlike manner a new brass liner to the propeller shaft of the said vessel, or make a new brass stern bush for the same of good and suitable materials and reason- ably fit for the purposes for which they were intended ; but in breach of their said contract, the defendants made and cast on a liner to the said propeller shaft and made a stern bush foi" the same wliicli were of bad and unsuitable materials and wholly unfit for the purposes for which they were intended, and the defendants made and cast f»n the said liner inelfectivcly and in an unworkmanlike manner. 5. By reason of the deiendants' breaches of contract as aforc- (r/) As to the sufficiency of tliis allegation, sec Mayne on Damages, :}rd 0(1. 24 to A-A. 202 BKEACH OF CONTRACT. Action for breach of an agree- ment claiming special damage. said, the said liner and stern Ijusli became and were Avholly useless, and the owners of the said vessel were compelled to expend, and did expend, a large sum in replacing the same and making good the damage occasioned by the said breaches of contract, and lost and -were deprived of the use of the said vessel for a long period, and the plaintiffs became and were and are responsible to the said o^^niers of the said vessel for the losses and damages aforesaid, and became liable to pay to the said owners the costs of an action brought against the plaintiffs by the said owners for the recovery of the said losses and damages, and were compelled to incur and incurred costs in defending the said action, and the defendants became and were and are liable to the plaintiffs for the losses, damages, and costs aforesaid, and to indemnify the plaintiffs against the same. 6. The plaintiffs also say that they defended the said action for the benefit of and at the request of the defendants, and are entitled to recover and to be indemnified against the losses,, damages, and costs aforesaid, and to be repaid the moneys ex- pended by them as moneys paid by them for the defendants at their request. 7. The defendants have not paid the said losses, damages, and costs, or any part thereof The plaintiffs claim £1000 damages. Breacli of contract to build and deliver sLijjs. Action for Breach of Contract to Indld and deliver Ships. 1. The plaintiff is a shipowner, cariying on business at h., and the defendants are shipbuilders at H., and at the times hereinafter mentioned, carried on business under the style or firm of E. W. & Co. 2. On or about the 5th of October, 187G, a contract was entered into between the plaintiff and the defendants, which was in the words and figures following : — [A contract to duild in:o iron screw-steamers for the plaint if is here set out.'} 3. On or about the 8th November, 187G, the plaintifi' and defendants entered into another contract for the sale by the defendants to the plaintiff of a second iron screw-steamship, the terms of Avhich were, so f\ir as is material to this action, substantially the same as those contained in the said contract hereinbefore set out. BEEACH OF CONTRACT. 203, 4. On or about the 20th of December, 187G, the plaintiif, at Breacli of the defeudauts' request, agreed that the tune for the completion contract to of the second steamer should be extended by a period of six weeks, deliver 5. The plaintiff says that all conditions were performed and ^'^ip^- fulfilled and all things happened and all times elapsed neces- sary to entitle the plaintiff" to have the said vessels built and delivered in accordance Avith the said contracts respectively, ' and the plaintiff was at all times ready and willing and al)le to perfoiTO his part of the said contracts respectively, yet the de- fendants did not build and deliver the said A'essels respectively to the plaintiff, and wholly refused to build and deliver the same, and repudiated their said contracts respectively, and ^n-ong- fidly exonerated the plaintiff' from the performance thereof G. By reason of the premises, the plaintiff lost the use of the said vessels, and the profits which he would have made from a performance by the defendants of their contracts, and was unable, except at much higher prices than the said contract prices, to buy and contract for other steamers in place of the said steamers, which were to have been of peculiar construc- tion under the said contracts and specifications, and lost the expenses to which he had been put for specifications and models, &c., for the said vessel, and for superintending the construction of the said vessels for a certain time, and certain other expenses, and incuiTed heavy expenses in respect of certain steam cranes supplied by the plaintiff for the said vessels, and which he was compelled to resell at a loss, and was also compelled to incur expense in cancelling certain contracts for certain other cranes ordered by the plaintiff' for the said vessels, and was otherwise injured and damnified. Particulars of the said expenses have been ftirnished by the plaintiff to the defendants. The plaintiff" claims £10,000 damages. Ac Hon for Urcarh of Afjrormoif fo ninJce a SI omn Roller In/ a ceriain Day {time hcituj of the essence of the contract), and claiminfj Amovnt lujreed for Liquidated Damages. 1 . The plaintiff is, &c. 2. On the 8th of February, 1877, by an agTcemcnt bearing that date made between the plaintiff and the defendant, the defen- 204 BKEACH OF CONTRACT, Breacli of agreement wJiere time of tlie essence of the con- tract. Claim for liquidated damages. (lani agreed to make a steam roller and deliver the same at the plaintiff's said place of business on or before the 30th of June, 1877, and the plaintiff ag-reed to jiay, after the deliveiy of the said steam roller, and on approval thereof by one J. E. Bright, a mechanical engineer, the price or sum of £1500 ; and it was further agreed by the said agreement that time should be re- garded as an essential ingredient of the same, and that if the defendant should not make and deliver the said steam roller on or before the said 30th of June, then the plaintiff' should be entitled to claim from and be paid by the defendant the sum of £4000 as liquidated damages, Avhich sum was agreed on as the loss ciud damage which would l)e sustamed by the plaintiff by a default to malvc and deliver the said steam roller by the defendant. 3. All conditions were performed and all things happened and all times elapsed necessary to entitle the plaintiff to a per- formance of his agreement by the defendant. 4. The defendant did not manufacture and deliver the said steam roller on or before the said 30th of June, 1877. The jjlaintiff claims £4000 liquidated damages. (The above may be yaried by the omission of the clause relating to the stipulation as to time being of the essence of the contract, and "S'arying the allegation of damages as follows) : — The plaintiff was, by the said default of the defendant, unable to enter on the execution of a contract for the making of certain roads which the plaintiff had entered into at the time of making his said agreement with the defendant, and of which the defen- dant had full notice ; and it was a term of the said agTcement between the plaintiff' and the defendant that in the event of non-delivery in time to enable the plaintiff to carry out his contract, the defendant should be liable for any loss occasioned by such default {a). Action for Breach of Contract to contribute to Expenses of forming a Company. Breach of 1 . The plaintiffs entered into an agreement, dated , contribute" ^'"''^^ *^*^^^ '^- ^■■' thereby the latter agi-eed to use his best endea- to expense of floating a company. (^O See Maync on Damas^es, 3rd ed. 24, 33. BREACH OF CONTRACT. 205^ TOUTS to procure from the A. Republic a concession to the Breacliof plaintiffs and their assigns for the exportation and working of ^°JjJ'^?'^'*^ guano on the eastern coast of P. and the adjacent islands, such to the ex- concession to be transferred to a limited company to be |^^°^?^ °*' formed, and the profits arising fi-om the transfer to be divided company, among the parties to the said agreement. 2. For the puqjose of meeting the expenses of carrying out such agTeement, the plaintiffs formed a spidicate, of which the defendant became a member. 3. The defendant agi-eed with the plaintiffs to contribute and pay to the jjlaintiffs, as a share of such expenses, the simi of £1000, or any amount that might be necessary as his share not exceeding £1000, and was to receive a proportionate share of the sums which might be received in shares or otherwise by the plaintiffs from the proposed company in respect of the said transfer of the said concession. 4. An agTeement was entered into, dated Gth May, 187:-^ between the said J. H., the plaintiffs, and a trustee, for the said proposed company to be called the E. P. G. T. Co., Limited, whereby it was agreed that such company should be formed with a nominal capital of £30,000, divided into 300 shares of £100 each, of which 100 fiilly paid-up shares should be allotted to the said -J. H., 100 shares, also fiilly paid up, to the plaintiffs or their nominees, and 100 should be subscribed for as ordinary shares, and that the said pro- posed concession should be obtained for and on behalf of the said Company. 5, The said Company was duly incorporated under the Com- panies Acts, 18(52 and 18G7, on the 10th May, 1872, and 100 fully paid up shares therein were placed at the disposal of the plaintiffs, as evidenced by an agreement in ^n'iting duly regis- tered, dated 13th May, 1872. G. In pursuance of the agreement mentioned in the 3rd paragraph, the plaintiffs nominated the defendant to be the holder of ten of the said 100 fully ])aid-up shares, being the Itnjportion to which he was entitled uuder the said agreement ill respect of his promised pajTiient of £1000, and the defendant accepted an allotment of the said shares and became the holder thereof. 7. The defendant's share of the expenses rcfeiTcd to in the 206 BREACH OF CONTRACT. r.reacli of vontract to ton tribute to tlie ex- penses of rioatiug a company. Claim for compound interest. 3rd paragrapli amounted to £1000, the ^^■llole of which was required for such expenses. 8. The defendant, on or about the 28th August, 1871, paid the plaintiffs £350, and on or about the Gth March, 1872, £150 ; but, although all conditions have been performed and all times have elapsed and all things have been done and hap- pened necessary to entitle the plaintiffs to be paid the whole of the said £1000, yet the defendant has not paid to the plaintiffs the remaining £500, nor any part thereof. 9. Accomits have been rendered by the plaintiffs to the defen- dant half-yearly, charging him with the said £500 and interest thereon, with half-yearly rests, which by agTeement and by the course of dealing between the plaintiffs and the defendant, the defendant is liable to pay. The plaintiffs claim : — £058 15s., together with interest thereon at 5 per cent, per annum from the 30th June, 1877 (the date of the issuing of the 'UTit), until judgment. Statement of Defence. Defence. 1. The defendant denies the allegations in paragraphs 1, 2, and 3 of the statement of claim. The facts as to the matters therein referred to are as follows : In the year 1871, the de- fendant agreed to become a member of a syndicate then being formed by the plaintiffs for the purpose of sending certain ships to load guano at or near the coast of P., upon the ex- press condition, amongst others, that the defendant should not be liable to any extent beyond the sum of £500. 2. The defendant denies the allegations in paragTaph 4 of the statement of claim. If any of the matters therein alleged be true, the defendant had ne^'er any notice or knowledge thereof. 3. The defendant denies the allegations of paragraphs 5, G, and 7 of the statement of claim. If any of the matters therein alleged are true, the defendant never had any notice or knowledge thereof. 4. The payments of £350 and £150 referred to in the 8th paragraph of the statement of claim ^vere made in pursuance of the agTeement mentioned in paragraph 1 of this defence, and BREACH OF PEOMISE OF MARRIAGE. 207 not otherwise. Except as aforesaid, the defendant denies the Defence, allegations of paragraph 8 of the statement of claim. 5. The defendant denies the allegations of paragraph 9 of the statement of claim. C. The alleged cause of action did not accrue within six years Statute of before the commencement of this action. ^^^^ ^' Eqibf. 1. The plaintiffs join issue upon the statement of defence. 2. In further reply to paragraph G of the statement of de- fence, the plaintitt's say that within six years before the com- mencement of this action, the defendant made an acknowledg- ment by part payment, and by a letter signed by the defendant, that the plaintiff's cause of action was in existence and unsatisfied. Reply. Breach of Promise of Marriage (")• CMm hy Plaintiff for Breach of Promise to Marry. 1. The plaintiff resides 'at , and is a spinster. The Breach of defendant is a law stationer in Street. promise to many. (a) A promise to marry on wMcli an action is based, need not be evidenced by any writing, and may be proved entirely by parol, though it is well to remember that by the 32 & 33 Vict. c. 68, s. 2, it is provided that " no plaintiff in any action for breach of promise of mar- riage shall recover a verdict unless his or her testimony shall be corro- borated by some other material evidence in support of such promise." As to what amounts to corroboration within this section, see JBcsseki v. Strni, 4(j L. J. 467. An infant may sue in such an action, but is not liable to be sued. {Holt v. Ward, 2 Str. 937.) The action falls within the rule actio iJcrsonalis moritur cum i)erxam, and cannot be maintained by an executor or administrator. {Chambtrlaiii, v. Williamson, 2 M. & S. i08.) . ^ The averments in the claim are generally very simple. There is first a statement of the agreement to marry, and then in another paragraph a statement of a breach of such promise, as that the defendant bad married another, or that the time agreed on for the marriage had elapsed, and the defendant refused to complete the contract, or that a reasonable time had elapsed. The claim will also generally contain an averment as to the anguish endured by the plaintiff, and the loss and damage she has suf- fered, but this averment is not essential. The jury in assessing damages may take into account the position in life and means of the defendant, and also the injury to the plaintiff's feelings. (Smith v. Woodjine, 1 C. B. N. H. CGO ; Bern/ v. Da Coda, L. It. 1 C. I'. 331.) Promise to marry need not he evidenced by writing. Corrobora- tioii of plaintiff essential. Averments iu the statement 0." claim. Measure of dama''cs. 208 BREACH OF PROMISE OF MARRIAGE. TIreacli of promise to mnny. 2. On or about the 25th of December, 187G, the defendant asked the plaintiff to become his wife, and upon her consent,, tlic plaiutiflf' and the defendant agreed to marry each other,, and the plaintiff has always been ready and willing to marry the defendant. 3. The defendant has, however, refused to perform his said agreement, and has married another j^erson. 4. Alternatively, the plaintiff says that she and the defen- dant agi'eed to marry one another within a reasonable time, and a reasonable time in that behalf had before this action elapsed, and the plaintiff had been always willing to marry the defendant, yet the defendant has refused to marry the plaintiff. The plaintiff claims £500 damages. Statement of Defence. 1. The defendant does not admit that he asked the plaintiff to become his wife, or that she consented thereto, or that the Immorality of plaintiff, when a defence. When an exoneration by the plaintiif will be implied. What will not consti- tute a defence to this action. Among the defences that may be set np are : 1. That the defendant never promised to marry the plaintiff ; 2. That he promised condi- tionally, and the condition has not yet been fulfilled ; 3. That since the promise the defendant has discovered that the plaintiff has been guilty of gross immorality or depraved conduct, of which he or she was ignorant at the time of the engagement (Irrinr/ v. Grcnnvood, 1 C. & P. 350) ; 4. That the plaintiff has been guilty of material misrepresentation as to the real circumstances of his or her family, and his or her previous life ( Wharf on v. Lfmn, 1 C. & P. 529) ; 5. That the plaintiff has exonerated the defendant from his or her promise. Such an exoneration may be implied from the demeanour and conduct of the parties. The total cessa- tion of intercourse and correspondence for two or three years is evidence for the jury on a plea of exoneration, although on the last occasion they Avere seen together the plaintiff refused to give up the defendant's letters, saying it would be like giving him up altogether. (Davis v. Homford, 6 H. & N. 245.) C. The Statute of Limitations, which, in the case'of this action, is a bar after the lapse of six years from the promise. It has been decided, however, that bodily infirmity supervening after the promise and rendering it dangerous to the defendant's life to marry, is no answer to an action for breach of promise to marry {Hall v. Wright, E. B. & B. 74(5, 765) ; so on the authority of the last case, insanity in the plaintiff existing unknown to the defendant previously to his promise, was held to be no defence [Bahcr v. Cavin-r\(jlit, 10 C. B. N. S. 124) ; so a pre-contract on the part of the plaintiff to marry another person, which the plaintiff concealed from the defendant at the time of his promise, is no defence to the action without fraud (Bcechcy v. Brmrn, E. B. & E. 796) ; so it is no defence that the defendant is a married man, and was married when he promised, provided the plaintiff was ignorant of the fact. [Milhvard v. Littlenood, 5 Exch. 775.) BREACH OF PROMISE OF MARRIAGE. 209 plaintiff and defendant agreed to many each other as respec- tively and alternatively alleged in the 2nd and -ith paragraphs of the plaintiff's statement of claim, or that they ever agi-eed to many each other. 2. The defendant further says, that even if he did agi-ee to marry the plaintiff as alleged, such agreement was by mutual consent of the plaintiff and defendant, and before any breach thereof, rescinded. Breach of Promise to Marrij, and Breach of S/)ecial A(jrccment{a). 1. Previously to the date of the agreement next herein- Statement after mentioned, the plaintiff and defendant had agreed to °^'^^''^""-, ° breach of many one another, and by an agreement bearing date the promise to 17th of December, 1872, and to which the plaintiff craves "^''^i''^- leave to refer as part of this statement, the defendant agreed with the i^laintiff to become his lawful wife on or before the 1st of January, 1875, or in default thereof and by way of com- pensation to the plaintiff, and in consideration of his agreeing to wait until the death of her parents to make the defendant his lawftd wife, to pay to the plaintiff the one-third of any properties or moneys which she (the defendant) might receive under the will of her parents, jointly or separately. 2. By the said agi-eement, and for the considerations afore- said, the defendant fiu-ther agreed to pay to the plaintiff an annuity of £20 per annum, commencing from the year ]87o, the said annuity to be doubled each year until the defendant should become the lawful wife of the plaintiff. 3. Before the commencement of this action, the defendant received, under the will of lier parents, jointly and separately, •certain properties and moneys. 4. The plaintiff has always been ready and willing to marry the defendant, yet the defendant has neglected and refused to many the plaintiff, or to pay him the said one-third as agreed, and the annuity for the year 1876, or either of them. (a) The statement of claim and statement of defence here set out are taken from the pleadings in llrap v. Marri.t, 40 L. J. 7(i. Tlie statement of defence is scarcely a model so far as brevity of statement is concerned ; Ijut the Court refused to strike it out as eniljarrassiiig, ami it is thought it may usefully be given as showing the greater" latitude of statement allowed when a merely equitable defence is pleaded. 210 BREACH OF PROMISE OF MARRIAGE. Statement of defence. Undue influence. The i)ltuiitift' claims : — £ as damages for the non-payment of the one-thu'd of such proi)erties and moneys and of the said annnity ; or in the alternative, damages for breach of said promise to many. Statemmt of Defence {a). 1. The defendant admits that in the year 1872, she signed a memorandum of agreement between herself and the plaintiff". The defendant says she never made any agreement Avith the plaintiff" relating to the claim of the plaintiff' set out in his. statement of claim other than by the said memorandum of agreement. 2. The defendant does not admit that the terms of the said memorandum of agreement are set out in the 1st and 2nd para- graphs of the statement of claim, or either of them. 3. As to the claim of the plaintiff" to one third portion of whatever properties or moneys she might receive or has re- ceived under the will of her parents, jointly or separately, and to the annuity as set forth in his statement of claim, the defendant says that if the said memorandum of agreement is- such as is set out in the 1st or 2nd paragraphs, or either of them, in the statement of claun, the said memorandum of agreement was signed or entered into by her under the cu'cmn- stances hereinafter set forth in the next nine successive paragraphs. 4. The defendant is the only child of the late Mr. , a gentleman of wealth and position, and has always during the lifetime of her parents, resided with them in L shire. Her mother died in the month of October, 1873, and her father- in the month of July, 1875. The defendant was, as the plain- tiff ever since the year 1859 well knew, wholly dependent upon her father in his lifetime for her maintenance, and after his- death for such provision as he might make for her by will or otherwise. 5. In the year 1855, the plaintiff", who then resided at L.,, and whose position in life was much inferior to the defendant's, and who knew that the defendant's father was a gentleman of (a) See note. p. 209, as to this form. BEEACH OF PEOMISE OF MARRIAGE. £11 wealth and jiositictn, m itliout the knowledge of the defendant's parents, paid his adth'esses to the defendant. G. In or about the year 18G1, the defendant's parents for statement the first time became aware that the plaintiff" was intimate °* defence. with and paying his addresses to the defendant, and they there- influence, upon forbade the defendant from further continuing any ac- quaintance with the plaintiflF, or receiving his addresses, or ha-ving any intercourse or correspondence with him, and this was then communicated to the plaintiff". 7. Thereupon the plaintiff, by the influence he had over the defendant, induced the defendant to enter into a clan- destine coiTespondence with him, to be kept up without the knowledge of the defendant's parents, and to enter into an engagement of marriage with him, which it was intended by both the plaintiff' and the defendant should be concealed fi-om the defendant's parents, and shortly after the plaintiff left L., and from thenceforward resided in London. 8. In consequence of such promise, from the year 18C1 down to the IDth of July, 1875, when the defendant's father died, the plaintiff continuously and frequently wrote to and received letters from the defendant, and fr'om time to time had interviews with her at various places other than L., and the engagement of marriage was continued between them. During the whole of this time the receipt and sending of such letters and the said interviews and the said engagement were, as the plaintiff well knew, concealed from the defendant's father and from the defendant's mother so long as she was alive ; and the defendant's parents were, and each of them was, ignorant and unaware of such correspondence, interviews, and engagement. 9. For many years prior to the day when the defendant signed such memorandum of agreement as aforesaid, the plain- tiff" applied to the defendant from time to time, and re- ceived from her sums of money, and from the commencement of the year 1809 to the day that the defenda^it signed the said memorandum of agreement as aforesaid, the plaintiff", who had, as he well knew, great influence over the defendant, ))y using all such influence, constantly endeavoured to induce the defendant to execute a bond or contract to secure him an annuity or large sum of money out of the property or moneys she might receive under her parents' and esj)ecially under her fatlier's will. V 2 212 BKEACH OF PROMISE OF MARKIAGE. Statement of defence. Undue iuflueuce. 10. The plaiiitilf knew that the defendant was very much afi-aid of her parents learning that, contrary to their wishes and orders, she liad kept up correspondence with the plaintiff, and had entered into and continued an engagement to many the plaintiif, and had had interviews with him from time to time, and for the purpose of inducing the defendant to execute such a bond or contract, he announced to the defendant that he intended to take up his residence at L., and to inform her parents of such interviews, correspondence, and engagement. 11. At and up to the signing by the defendant of the memo- randum of agreement mentioned in the 1st paragraph of this statement, the defendant had for the whole of her life re- sided with and been under the care and direction of her parents, and was wholly without experience in iDUsiness, and was, with reference to her engagement with the plaintiff and the matter comprised in such memorandum of agreement, wholly induced by the plaintiflF to sign and enter into the said memorandum of agreement by and under the influence of the plaintiff, while she was engaged to be married to him under the circmnstances before set forth, and by and under the fear, as the plaintiflF well knew, that the plaintiff would, if she refused to sign and enter into the said memorandum of agreement, take up his residence at L., and inform her l^arents of such interviews, correspondence, and engagement, and thereupon she did sign the said memorandum of agree- ment in the 1st paragraph of this statement mentioned, by the means aforesaid, and under the circumstances aforesaid, and not otherwise. And the defendant further says, that if the terms of the said memorandum of agreement are such as are set forth in the statement of claim, the same are, and always ^vere, as to the promise of the defendant to pay the said moneys, properties, and annuity, exorbitant, unreasonable, iu- ■equitable, and unfair to the defendant. 12. The defendant admits that under the will of her father, but denies that under the will of her mother, she became en- titled to certain properties and moneys, and says that before, after, and at the execution of the last will and testament of the defendant's father, under which said M'ill the defendant has received such property and money, and to the date of the •death of the defendant's father, the father of the defendant BROKER— CARRIER. 213 ■was ignorant of the aforesaid correspondence, interviews, and Statement eno^ao-emeut of marriao'e between tlie ijlaintiff and the defen- ^ , * ° ° ^ Undue dant, signed by the defendant as aforesaid, and that there influence. was any agreement whatever between the plaintiff and the de- fendant ; and the defendant says that the defendant's father made his said last will and testament in the belief that there was no agreement whatever between the plaintiff and the defendant. And by way of set-off and comiter-claim, the defendant claims as follows : — 13. The defendant repeats the matters hereinbefore alleged in the paragraphs nmnbered consecutively from 3 to 12, both inclusive, of this statement, and says that the same are true in substance and fact. 14. The defendant claims that if the terms of the said memorandmn of agi-eement mentioned in the 1st paragraph of this statement are such as are set out in the 1st and 2nd paragraphs of the statement of claim, the said memorandum of agreement may, so far as the same relates to the promise of the defendant to pay the plaintiff one-third of whatever properties or moneys the defendant might receive under the will of her parents, jointly and separately, and so far as the same relates to the promise of the defendant to pay the plaintiff the said annuity, be declared to be null and void, and that it may be rectified. 15. The defendant further claims such other farther and better relief as the nature of the case requires. Broker. See jStockhro/ccr, Carrier. See Common Carrier. 214 CHARTER-PAKTY. Statement of claim against charterer for not loading, and de- murrage. Definition of charter- party. Correlative rights and duties of charterer and ship- owner. "What con- stitutes a warranty or condi- tion pre- cedent. Charter-party («). Action 'by Shqi-oicner at/ainst Charicrcr for not Loading. 1. Tlic plaintiifs are the owners of tlie "Pansy," and the defendant is a merchant canying on business in London. 2. On or about the 23rd of March, 1877, the plaintiffs and defendant ag-reed by charter-party that the plaintiffs' steamship («) " A charter-party is a contract whereby the ship-owner" or the ship- master covenants or agrees for the use of the ship by the charterer for some specified period of time, or for a particular voyage or adventure " (Addi- son on Contracts, 7th ed., 718). The ship-owner by the charter-party expressly grants the vessel to be used by the charterer, but this will not generally (though sometimes it will be otherwise, see Trinity House v. Clarlt, 4 M. & y. 21)5 ; Ilutton v. Brafj^j, 7 Taunt. 1-1) be regarded as a devise of the ship, so as to clothe the charterer with the possession of the vessel, but simply as a contract for the use of the ship, together with the ser- vices of the master and crew, for the purpose of carrying merchandise. The duty of the charterer is to load his cargo on board within the agreed time, and there is also an implied contract on his part not to put on board without notice packages of dangerous or corrosive matter, the nature of whicli the ship-owner or his agents could not be reasonably ex- pected to know. {Braaa v. Maitland, ^ E. & B. 470 ; L. J. 26 Q. B. 49.) The duty of the ship-owner is to fulfil all the terms of the charter-partj' and safely convey the goods to their destination, the loss arising from certain perils being excepted, and his right is either then or before (if, but only if, it has been so expressly agreed) to receive the freight due to him. If the cliarterer fails to load a cargo, or loads an insufficient cargo so that the ship-owner cannot claim the full amount of freight to which he is entitled by the terms of the charter-party he is liable for damages in an action by the ship-owner. In an action for not loading, the ship-owner must aver in his claim, and prove at the trial, compliance with all warranties and conditions on his part. The description of a ship may be a warranty. Thus, if she be described as of class A 1 and is not so, this would be an answer to an action for not loading {Ilnrst v. Ushorne, 18 C. B. 144 ; li. J. 25 C. P. 209) ; so a description of a ship as "now in a particular port" amounts to a warranty that she really is there {Bchii, v. Burnesn; 3 B. & S. 751 ; L. J. 32 Q. B. 204) ; so " now at sea, having sailed three weeks ago," is a condition i)recedent. {OlUre v. Bookrr, 1 Exch. 41(j.) Where the ship is chartered for a given time, the stipulation as to the time when tlie ship shall be ready to sail or to load is a condition precedent {Sceqar v. Duthie, 8 C. B. N. S. 45, 72 ; L. J. 30 C. V. in, ; Tnlhi v. Ilon-linrj, 45 L. J. 756 ; and delay, even though caused by the excepted perils, when so great as to put an end in a commercial sense to the speculation, exonerates the charterer. {Jacltwn v. Union Marine Insurance Co., L. E. 8 C. P. 572 ; L. R. 10 C. P. 125.) There is an implied warranty on the part of the ship-owner that his ship shall be seaworthy at the com- mencement of the voyage, and where she was not. and in consequence the charterer's cargo was lost, it was held that he could recover its value from the ship-owner ( Colicn v. Davidson, 46 L. J. 305) ; so a statement of tonnage is not a warranty or condition precedent. {Barker v. Windle, 6 E. & B. 675 ; L. J. 25 Q. B. 349.) The measure of damages for not loading any cargo is the amount of freight which would have been carried, deducting CHAETEE-PAETY. 2Id the " Pansy," then on passage ont should, with all convenient sjDeed proceed to Parazualos (after delivery of the then outward expenses and any profit earned during the time covered by the charter. (See also Stanton v. Itichard-soii, 45 L. J. (H. L.) 78.) Deniiim/gr.] — The charterer usually covenants to load and unload the vessel within a certain time, or if he fails to do so, to pay so much a day during the delay. This delay as well as the payment is called demurrage. The days which by the charter-party are allowed to the charterer to load or unload are called lay days ; and these days are. in the absence of contrary usage, to be taken as consecutive or running days. (Bi'OKii v. John-ton. 10 M. & W. 331.) The lay days allowed are to be reckoned from the time of the ship's arrival at the usual place of discharge, and not from her arrival at the entrance of the port, although for the purposes of navigation she may have discharged a portion of her cargo {Brcrcton v. Chapman, 7 Bing. .559 ; Kell v. Anderson, 10 M. & W. 41)8) ; and where by a charter-party a specified sum is to be paid for each day over and above tlic lying days, that sum is payable in respect of a fraction of a day during which the ship is detained. (Commercial Stcam,ihip Co. v. Boulton. 44 L. J. Q. B. 21!).) When the charter-party is silent as to the time of loading and unloading, the contract implied by law is that each jtarty will use reasonable diligence in jierforming that part of the loading or delivery which by the custom of the port falls upon him. The charterer cannot escape from liability on his express ■ covenant to pay demurrage by showing that the delay was occasioned by some unforeseen event not provided for by the contract, such as the crowded state of the docks (though here it may be other- %vise if there is a custom of the port that ships of the kind should not be considered as arrived until they get a discharging berth within the dock < Steamshijj Co.,Norden, v. Dempsc)j, 45 L. J. 7(54) ) : so the delay of Custom- house officers, or the inclemency of the weather [Blight v. Po'ir, 8 B. & P. 295), or the neglect of the holders of the bill of lading to present it and claim the goods. {Erlohsen v. Barhn-orth, 3 H. & N. 894 ; L. J. 28 Ex. 95. See also TU.'i v. Bijcrs. 45 L. J. 511.) But if after the Ion dint/ has hccn rompleted, the vessel is detained by a sudden frost, or by foul weather and contrary winds, the charterer is not liable. {Jamlcson v. rAUtrie, () Bro. P. C. 474.) i^/V'i^/20 CHAKTER-PARTY. Statement of claim for de- murrage. Statement of defence to above. alono-side and taken from alongside at affreighters' risk and expense, not exceeding all she could reasonal)ly stow and cany over and above her tackle, apparel, provisions, and frirnitui'e, and that being so loaded, the said ship should proceed to L. direct, or so near thereto as she might safely get, and there deliver the said cargo ; and it was further agreed that eleven running days, Sundays excepted, were to be allowed the affreighters for loading and discharging the said cargo, and ten days on demurrage over and above the said loading days at £30 per day. 4. The said ship, in accordance with the terms of the said charter-party duly performed the said voyage fi-om L. to E. and fr-om thence to L., and the plaintiff did everything that it was his duty under the said charter-party to do in order to enable the said ship to be duly loaded and discharged, and in loading and discharging the same at the said ports of K. and London within the said eleven loading days. 5. The said ship, however, was not loaded and discharged Avithin the eleven running days allowed to the said defendants by the said charter-party for the said purposes, but, on the contrary, eighteen days were occupied in such loading and dis- charging, and the ship was thus kept and detained in demurrage for seven days over and above the loading days allowed by the said charter-party. The plaintiff claims £210 for demurrage. Statement of Defence. 1. In answer to paragraph 4 of the statement of claim, the defendants say that the said vessel did not load at R. fi-om the defendants' factors a full and complete cargo of oats in accord- ance with the terms of the said charter-party, and the master of the said vessel prevented and delayed the defendants for a considerable time fi-om loading the portion of the cargo which was loaded at R., and reftised to load a full and complete cargo there in accordance mth the tei-ms of the said charter-party, and sailed for a port called " B." with only a portion of the cargo on board, and the defendants at his request forwarded the residue of the cargo by rail to " B." and the same was there loaded on board the said vessel. 2. The defendants, except as admitted by the payment into CHARTER-PARTY. 221 Court hereinafter mentioned, deny the alleo-ations in para- Statement "^ ot (.lerencG graph 5 of this statement of chiim. They were ahvays ready ^g ^ctj^,, and mllinff to load the said vessel pursuant to the said charter- for demur- party, and did not keep and detain her for seven days over and above the lying days allowed thereby, or for any longer period than was covered by the said payment into Court. 3. Except as aforesaid, the detention of the vessel was wholly caused by the acts and defaults of the master of the vessel, as hereinbefore stated, and not by the acts of the defendants. ■i. The defendants bring into Court the smn of £G0 for Payment two days' demurrage of the said vessel, and say that the same is sufficient to satisfy the plaintiff's claim. into Court. SMp-oiLiw against Charterer for agreed Hire of Chartered Vessel. 1. The plaintiflPs were, on the 1st August, 1874, the owners of ^^Jj^-J^'f^^. the steamship " British Queen." hire of 2. On the 1st of August, 187-1:, the said steamship being steamshii o ' ' / ^ on lour then in Calcutta, a charter-party was there entered into be- mouths' tween J. S., the master, on behalf of himself and the said steam- charter- , party. ship, of the one part, and the defendants of the other part. 3. By the said charter-party it was agreed, amongst other things, that the defendants should be entitled to the whole caiTying power of the said steamship for the period of four months, commencing fi-om the said 1st August, 1874, upon fi voyage or voyages between Calcutta and Mam-itius and back ; that the defendants should pay for such use of the said steam- ship to the plaintiflFs' agents at Calcutta, monthly, the sum of £1,000 ; that the charter should terminate at Calcutta ; and that if at the expiration of the period of four months the said steamship should be upon a voyage, then the defendants should pay^?;-(? raid for the hire of the ship up to lier arrival at Cal- cutta, and the complete discharge of her cargo there. 4. The " British Qncen " made several voyages in pursuance of the said charter-party, and the first three monthly sums of £1,000 each were duly paid. 5. The period of four months exjnrod on the 1st December, 1874, and at that time the steamship was on a voyage from Mauritius to Calcutta. She arrived at Calcutta on the 13th «).7f> CHARTEE-PARTY. Statement of claim for freiglit on four moutlis' charter- party. Statement of defence. Counter- claim. and the discharge of her cargo there was comjjleted on the IGth of December aforesaid. G. The plaintiffs' agents at Calcutta called upon the de- fendants to pay to them the fourth monthly sum of £1,000, and a sum of £500 for the hire of the said steamship from the 1st to the 16th December, 1874, but the defendants have not paid any part of the said sums. The plaintiflFs claim : — The sum of £1,500, and interest itpon £1,000, part thereof, fi'om the 1st December, 1874, until judgment. Statement of Defetwe. 1. By the charter-party sued upon it was expressly provided that if any accident should happen or any repairs become necessary to the engines or boilers of the said steamship, the time occupied in repairs should be deducted from the period of the said charter, and a proportionate reduction in the charter money should be made. 2. On the repairs became necessary to the engines and boilers of the said steamship, and ten days were occupied in eff'ecting such repairs. 3. On the an accident happened to the engines of the said steamship at Mauritius, and two days were occupied in effecting the repairs necessary in consequence thereof. 4. The defendants are entitled to a reduction in the charter- money of £400 by reason of the time occupied in effecting the said repairs. Countei'-daim. By way of set-off" and counter-claim the defendants claim as follows : — 1. By the charter-party it was expressly provided that the charterers should furnish funds for the said steamsliip's neces- sary disbm'sements, except in the port of Calcutta, without any commission or interest on any siun. so advanced. 2. The defendants paid, for the necessary disbursements of the said steamship in the port of Mauritius between the and the , 1874, sums amounting in all to £625 14s. 6^/. ?). The charter-party also contained an exj^ress wan'anty that the said steamship was at the date thereof capable of steaming CHARTER-PARTY. 223 niue knots an hour on a consumption of 30 tons of coal a day, Counter- and it was furtlier provided by the charter-party that the °''™" charterers should provide coal for the use of the said steamship. 4. The said steamship was at the date of the charter-party only capable of steaming less than eight knots an hour, and that only on a consumption of more than 35 tons of coal a day. 5. In consequence of the matters mentioned in the last paragTaph, the said steamship finally arrived at Calcutta at least fifteen days later, and remained under charter at least fifteen days longer, than she \^-ould otherwise have done. She was also during the whole period of the said charter at sea for a much larger number of days than she would otherwise have been, and consumed a much larger quantity of coal on each of such days than she would otherwise have done, whereby the defendants were obliged to provide for the use of the said steamship much larger quantities of coal than they would otherwise have been. The defendants claim : — £ damages in respect of the matters stated in this set- ofi" and counter-claim. 1. The plaintifis join issue upon the 2nd, 3rd, and 4th Reply. paragi'aphs of the defendants' statement of defence. 2. With respect to the allegations in paragraph 2 of the counter-claun the plaintiff's do not admit the correctness of the amount therein stated. And all sums advanced by the defend- ants for disbursements were allowed to them by the plaintiffs by deducting the same fi-om the third monthly sum of £1,000 paid (subject to such deduction) to the plaintiff's' agents at Calcutta by the defendants on or about the 12th November, 1874. 3. With respect to the alleged breach of wan-anty and the alleged damages thereft-om stated in the 3rd, 4th, and 5th para- graphs, the plaintiffs say that the said steamship was at the date of the charter-party capable of steaming niue knots an hour on a consumption of 30 tons of coal a day. If the steamship did not, during the said charter, steam more than eight knots an hour, and tiiat on a consumption of more than 35 tons a day as alleged (which the plaintiff's do not admit), it was in conse- quence of the bad and unfit coals provided by the defendants I'or the use of the said steamship. 224 CHARTER-PARTY. Rejoinder. Rejoinder. Tlic defendants join issue upon the plaintiffs' reply to their set-off and connter-claim. Action for Ex-pmses of discliarfjimj Cartjo on Defendants refiisiwi to do so, and for Demurrage. Statement j. T|^^ plaintiffs are the owners of the " D.," and the of claim T J. T 1 for ex- defendants are merchants carrynig on business in London. penses of 2. On or about the 16th of September, 187G, the plaintiffs discharging -, ■, r. ^ i i i cargo and and defendants agreed by charter-party that the said vessel, then demurrage, gn passage to Bombay, should after delivery of her outward cargo, load at Bombay aforesaid a full cargo of linseed in bags, the cargo to be brouglit to and taken from alongside at mer- chants' risk and expense, and that being so loaded, she should proceed on a voyage from Bombay aforesaid to a safe j)ort in the United Kingdom, or on the continent between Havre and Hamburg, both inclusive, as ordered on signing bills of lading, or so near thereto as she might safely get, and there deliver tlie said cargo, always afloat ; and it was further agreed that the cargo should be brought to and taken fi-om alongside at mer- chants' risk and expense, and that the discharge was to be with all possible dispatch, and ten days should be allowed on demur- rage over and above the said lying days at id. per register ton per day. 3. The cargo was loaded under the said charter-party, and on signing the bills of lading the vessel was ordered to deliver her cargo at Amsterdam, as her port of discharge under the terms of the said charter-party. 4. The said vessel proceeded upon and completed her voyage, duly arriving as near to Amsterdam as she could get, always afloat, and all things happened and all conditions were per- formed necessary to entitle the plaintiffs to have the said vessel unloaded and discharged by the defendants, according to the terms of the said charter-party. 5. The defendants, however, did not nor would unload and discharge the said vessel, nor take delivery of the said cargo with all possible dispatch, according to the terms of the said charter-party, or at all, and detained the said vessel for a long period beyond the time within which they were bound to discharcfe the said vessel. CHARTER-PARTY. 225 6. By reason of the premises the plaintiffs were compelled to Statement discharge the said cargo Jfrom the said vessel, and were put to fQj. g^. great expense in and about the unloading and discharge of the penses of said cargo, and for lightering and warehousing the same, and carco'an!f° sustained a loss by the detention of the said vessel, and the demurrage, defendants became and are liable to pay to the plaintiffs £204 8s. ?)d., the amount of the said expenses, and a further sum of £121 16s. for six days' demurrage of the said vessel. The defendants have not paid the said sums, or either of them, or any part thereof, and have wholly refused to indemnify the plaintiffs from the losses and expenses incurred by them by reason of the defendants' breach of their contract. The plaintiffs claim £500 damages. Statoment of Defence. 1. A cargo was duly loaded on board the said vessel upon the Defence. tei-ms of the said charter-party, and of the said bills of lading, and the vessel was ordered to A., and proceeded upon her voyage, but the defendants deny the other allegations con- tained in the 3rd, 4th, and 5th paragTaphs. The said bills of lading were indorsed by the defendants to Messrs. A. E. & Co.^ or order. 2. The vessel, instead of completing her voyage and pro- Ship did i 1 1 T-i Iy^ L not go to ceedmg to A., or so near thereunto as she could saiely get, pro- place of ceeded only to X., a place in the kingdom of Holland, not destination, within the port of A., and the captain there discharged his expenses cargo into lighters, and caused the same to be lightered to A. '^'^re in- 7 cun-ed im- The defendants did not take delivery at N. aforesaid. properly. 3. By proceeding to or passing through cne or other of the canals which at the date of the vessel's arrival connected A, with the sea, or by partly discharging her cargo, or by some other means, the said vessel could have proceeded to A. or much nearer thereto than X. within the meaning of the said charter- party and bills of lading. 4. There is a well-known custom in the A. trade, whereof the plaintiffs had notice wlien the said charter-party and bills of lading respectively were signed, whereby the owners of all vessels chartered as aforesaid, liound for A., if such vessels dis- charge their cargo at X., jjay the ex])enses of and incidental to the discharging it into lighters and lightering it from X. to A. Q 22G CHARTER-PARTY. Statement of claim in alternative for balance of freight or damage for not loading. Alternative Claim for Balmice of Freight and Damage for Breach of Charter-imrty for not Loading, ivherebg Plaintiff was compelled to take lower Freight. 1. On or about the 24th September, 1875, an agreement by charterparty was made and entered into by and between the plaintiffs, under their name, style, and firm of " J. H. and Co.," and the defendant for the charter of the ship " R." for a voyage from the C. coast to M. The said charter-party was as follows : — \^Here folloivs chart&r-;party set out at length.^ 2. The said ship accordingly sailed and proceeded to C, being a port on the C. coast between G. and P., and was there loaded by the defendant with the said agreed cargo, consisting of 1141 tons of seeds, and the plaintiffs carried the said cargo in the said ship to M. aforesaid vicl the S. canal, and there dehvered the same to the defendant. 3. The said agreed freight amounted in the whole to £4138, and the defendant paid to the plaintiifs on account £3995, leaving a balance of £143 wholly due and unpaid to the plaintiffs. 4. All things were done and happened, and all times elapsed necessary to entitle, and nothing was done and happened to dis- entitle the plaintiff to performance by the defendant of the said charter-party, and to be paid the said balance of the said fi-eight, and to maintain this action for the breach hereinafter assigned. 5. The defendant did not nor would pay the plaintiifs the said balance of the said fi-eight, and the same is still wholly due and unpaid. In the alternative the plaintiffs say as follows : — 6. The charter-party mentioned in the 1st paragraph was made as therein mentioned. 7. The said ship accordingly sailed and proceeded to C, being such port as aforesaid, and all things were done and happened, and all times elapsed necessary to entitle, and nothing was done or happened to disentitle the plaintiffs to performance by the defendant of the said charter-party. 8. Yet the defendant did not nor would load the said agreed cargo according to the said charter-party, or at all. CHAKTEE-PAKTY. 227 9. By reason of the said several last-mentioned premises, the Statement plaintiffs lost the benefit which they would have derived from the'^a?te^-'° perfonnance by the defendant of the said charter-party, and native. were obliged to load the said vessel at a lower rate of fi-eight, whereby they suffered damage amounting t(j £143. The plaintiffs claim : — £143 and interest thereon from the date of the wiit until pay- ment or judgTuent. Statement of Defence. 1. By the terms of the charter-party set forth in paragraph Defence 1 of the statement of claim, it was provided that " should the fenda'nt" ship not arrive at first loading port on or before the 20th of exercised December, 1875, charterers to have the option of cancelling the t^cTncd charter ; " and the defendant says that the said ship did not charter- aiTive at the ffrst loading port till long after the 20th Decem- cSgency ber, 1875 ; thereupon the defendant, as he lawfully might do, ^iiic^ ii'H>- upon the arrival of the said ship at the said port, exercised his ^^"^'^ ' option of cancelling the said charter, and thereupon cancelled the same accordingly. 2. The defendant fiu'ther says that after the said charter was cancelled as aforesaid, the defendant, upon the request of the captain, offered to load the said ship (although the time had long since elapsed by which the defendant was bound to load the said ship) if a new charter was made upon the terras of 70-s. and that per ton for seed, other seed to pay in proportion ; charter- and the defendant says that the captam of the said ship party was accepted the said offer subject to the approval of the plaintiffs. 3. The plaintiffs approved of the said offer, and authorized the captain to accept the same ; and the said captain tliereupon accepted the said offer so made by the defendant, and effected a charter with the defendant at the above rate of freight, viz., 7 U.S. per ton. 4. The defendant says that the cargo mentioned in paragTaph 2 of the statement of claim was a cargo loaded upon the terms of freight last above set forth, and pursuant to tlie last-mentioned cliarter, and not otherwise, and the defendant says the ])laintiffs have already received advances or collected l)ill of lading freight, in respect of the cargo earned l)y the said ship to JI. sufficient to cover their claim for freight under the said second Q 2 substituted. 228 CHARTER-PARTY. Statement of defence continued. above-mentioned charter-party, and said terms of freight afore- said, or the bills of lading for the said cargo, and that nothing is now due from the defendant to the plaintiffs. f). Save as above admitted, the defendant denies all and every of the allegations contained in paragraphs 2, 3, 4, 7, and 9 of the said statement of claim. Reply that defendant did not exercise his option. Denial that new char- ter-party was by jjlaintiffs' authority. That notice of cancel- ling first charter- l^arty was not given within reasonuLle time. 1. The plaintiff's join issue upon the 5th paragraph of the statement of defence. 2. The plaintiffs admit that the " R." did not arrive at C, being the first loading port, until a long time after the 20tli December, 1875, but the defendant did not thereupon or at all cancel the said charter-party. 3. If the master of the said ship accepted the said offer in the 2nd paragraph of the statement of defence mentioned, which the plaintiffs do not admit, he did so without the authority of the plaintiffs, or if he so subsequently effected a charter-party as mentioned, he did so without the authority of the plaintiffs, and the same was not binding on the plaintiffs. 4. The defendant, on the arrival of the said ship at C, and before the alleged cancelment of the said first charter-party, and before the effecting of the said alleged second charter-party, had proceeded to load and had loaded the said agreed cargo under the charter-party in the statement of claim mentioned. 5. The plaintiffs admit that they have already received advances and collected bill of lading freight in respect of the cargo carried by the " R." sufficient to cover the fi-eight under the said alleged second charter-party (assuming the same to ))e binding on the plaintiffs), and the bills of lading on the said cargo. 6. The plaintiff further says that the notice cancelling the charter-party mentioned in the 1st paragraph of the claim was'not given in or within a reasonable time after the 20th December, 1875, and the same was wholly inoperative for the purpose of cancelling the said charter-party. 7. On the 20th December, 1875, the said ship then being at ]\I. on the way to C, the said master of the said ship telegraphed to the defendant to know whether he would exercise his option of cancelling the said charter-party. The defendant did not reply authority to enter CHARTEE-PARTY. 229 cancellins: the said charterparty, but on the contraiy, sent to Reply cou- the master of the said vessel telegrams calculated to niduce, and which did induce, the said master to proceed to C. under the belief that the said charter-party was not cancelled, and the plaintiffs submit that the defendant was thereby stopped from afterwards cancelling the same or from now alleging that he cancelled the same. 8. If the plaintiffs' approval and authority for accepting the That •said second charter-party were obtained (which the plaintiffs deny) as above mentioned, the said approval and authority Avere into new procured by the fi-aud of the defendant, and by his fr-audulent p^^^Toi)- concealment ft'om the plaintiffs of the facts relating to the said tained by alleged cancelment of the said first charter-party in the state- ^^"''^"''• ment of defence mentioned, and of the arrangements A^hich he had made with the master of the said ship respecting the same. Action for Difference hetween estimated Amount of Freight under Charter-imrtij and Amount jm id , part of Cargo being nuide up of lighter Material than agreed. 1. The plaintiffs are the owners of the vessel called the "H.," Statement the defendants are merchants in Liverpool. for^dlf" 2. By charter-party bearing date the 2nd of October, 187G, it ferenee was agreed by and between the plaintiffs and the defendants ^l^^^yj^f" that the plaintift"s said vessel the " H." then on a voyage to freight on Bombay, should proceed to Bombay, and there load in customary can^o'and manner, ft'om the defendants or their agents, a ftill and com- what it plete cargo of seed, the defendants to have the option of ^j.^^," '^^^^j^ shipping 00 tons of seed and (or) rayrolams, at the rate of 20s. according per ton, and that should broken stowage be required the captain !°^rt^*^^"' should engage same through the defendants' agents for the plaintiffs' benefit, and that beiug so loaded, she would therewith proceed to any safe port in the United ]vingdom or on the continent between Havre and Hamburg, both inclusive, one port only, as ordered on signing bills of lading, and there deliver her cargo agreeably to l)ills of lading (certain i)erils only excepted)* and that the defendants should load the said vessel with the said cargo at the port of loading, and should pay freight as fol- lows : — If discharged in the United Kingdom, £2 Is. Gd., and if discharged at any safe port on the c jntimnt between Havre and 230 CHAETER-PARTY. Statement HamburfT, hotli inclusive, £2 10s. per 50 cubic feet of cotton, ^™' intake measurement as measured on the quay at Bombay by Chamber of Commerce certified measurer, under the captain's superintendence, other goods to pay in proportion according to Bombay Chamber of C(.>mmerce scale for sailing ships. It was further provided ])y the said charter-party that the freight should he paid on unloading and right delivery of the cargo in cash, less two months' interest at 5 per cent, per annum, at port of discharge if in the United Kingdom, if elsewhere in cash sufficient for ship's use at current rate of exchange, and balance as customary, and that the master should sign bills of lading at any rate of freight required by the charterers with- out prejudice to the said charter-party ; but should the ag- gregate fi'eight by bill of lading amount to less than the total chartered fi-eight, that the master should be paid the difference in cash before saihng, less four months' interest and cost of insurance. 3. The said vessel accordingly proceeded to Bombay, where she ai'rived on the of , 1876, and thereupon the de- fendants conmienced loading her with seed, but did not load a full and complete cargo of seed in accordance with the lerms of the said charter-party, and only loaded 2260 bags of seed. 4. The defendants being unable to load a full cargo of seed in accordance with the said charter-party, it was agreed between the plaintiffs and the defendants that the defendants should be at liberty to fill up the said vessel with cotton, and should pay the plaintiffs fov any extra ballast requu-ed, and be responsible for any loss that might be sustained by the plaintiffs in respect of any loss of freight or otherwise by reason of the shipment of the said cotton instead of seed. 5. The said vessel was accordingly filled up with cotton pur- suant to the said agreement, and bills of lading were signed by the master at rates of freight required by the defendants within the meaning of the said charter-party, and the aggregate freight payable according to the bills of lading amoimted to less than the total chartered freight. 6. The said vessel sailed on her homeward voyage and duly delivered the cargo which had been shipped by the defendants, and the plaintiffs received the amount of the freight payable by the bills of lading, which was less than the total chartered CHARTEE-PAHTY. 231 freight according to the said charter-party by the sum of Statement ^556 10s. 9d. The defendants have refused to i^ay and have not paid to the plaintiffs the said sum or any part thereof. 7. The plaintiffs say that by reason of the defendants' default in loading a cargo according to the terms of the said charter- party, they have sustained a loss amounting to the said sum of £566 10s. del, for which the defendants are liable to the plaintiffs. 8. The defendants hare also failed to indemnify the plaintiffs for the loss of freight amounting to the same sum of £566 10s. 9(1, which was sustained by the plaintiffs by reason of the shipment of the said cotton instead of seed. The plaintiffs claim : — (1.) £566 10s. 9d., with interest until payment. (2.) Or £1,000 damages. Statement of Defence to Claim {not giren) for Freujht and Ex- penses indorsed on Writ. 1. The defendants do not admit that the sum of £69 13s. Id., Defence to or any part thereof, claimed by the jilaintiffs l)y the indorsement claim for on the wi'it in this action for freight and disbursements, is due ancf elis- or owing from the defendants to the plaintiffs. The defendants bursements admit the shipment of the goods mentioned in the said indorse- o„ ^^.j-jt ment, but they deny that there is due and owing by them to the plaintiffs in respect of the carriage and conveyance of the same more than the amount paid by the defendants, and for which credit has been given in the particulars contained in the said indorsement. By way of set-off and counter-claim the defendants say as Set-off and follows : — 2. In the month of September, 1875, the defendants caused to be delivered to the plaintiffs 1451 bags of rye and a quan- tity of rye in bulk to be safely and securely carried and con- veyed by the plaintiffs for the defendants to London by the plaintiffs' vessels, and there delivered to the defendants (certain perils and casualties excepted) for freight to the plaintiffs. 3. The plaintiffs, however, did not safely and securely carry and convey the said goods respectively, but deHvered about 588 quarters of the said rye to the defendants in London in a damaged counter- claim. 232 CHAETER-PARTY. Set-oft' and condition, and greatly deteriorated in value. The damage was clalm!'^" "*'t ^"insed l)y any of tlie i)erils and casualties excepted. 4. The defendants will contend, if necessary, that the damage to the said rye was caused hy the negligence of the plaintift's and their servants. o. The defendants have, by reason of the premises, incurred heavy expenses in taking care of and conditioning the said damaged rye, and have furnished the plaintiffs with particulars of the said damage and expenses, and applied for payment of the amount thereof, but the plaintift's have not paid the same. The defendants claim : — £400 damages in respect of the matters stated in this set-ofi" and counter-claim. Statement of claim for refusing services of ship's crew to take cargo on lioard. Action against ShijJ-owners for refusing tJis Services of the Ship's Crew to take a Cargo on Board. 1 . The plaintiffs are a shipping company carrying on business in London and New Zealand. 2. The defendants carry on business in London, and in the month of September, 1873, were the owners of the ship " S." 3. By a charter-party entered into upon the 6th of September, 1873, the plaintiffs chartered from the defendants the said vessel the " S." to proceed on a voyage fi'om London to New- Zealand, there to take on board a full and complete cargo of New Zealand produce or other lawful cargo, and therewith pro- ceed to London, and deliver the said cargo for the freight therein specified ; and it was provided by the said charter-party that ballast, if required in New Zealand, should be provided by the charterers, also stiffening cargo ; and that in the colony the stevedore should be appointed and paid by the charterers, but act under the direction of the master, but that charterers should have the use of the ship's crew then on board without charge ; and that the cargo should be brought alongside free of expense and risk to the ship. 4. Li accordance with the terms aforesaid, the said vessel proceeded to a port in New Zealand, and the plaintiffs there provided a cargo and brought the same alongside the said vessel in lighters, and were ready to load the said vessel ; and although the plaintiffs did all things on their part to be done to entitle them to a performance of the said charter-party by CHARTER-PAETY. 23a of claim contiuued. the defendants, yet the defendants refused to take the said Statement cargo on board the said vessel out of the said hghters, accord- ing to the terms of their contract in that behalf, and did not allow the plaintiffs to ha^'e the use of the ship's cre\v then on board without charge, and the plaintiffs did not in fact have the use of the said crew then on board without charge, and were compelled to take the said cargo out of the lighters on board the said vessel, and to hire and pay for labourers and others to take the said cargo on board and to load the same. 5. By reason of the matters above stated, the plaintiffs were put to an expense of £151 186-., and the plaintiffs have claimed to be indemnified by the defendants in respect of the said expense, but the defendants have refused to indemnify the l^laintiffs, or to pay the said sum of £151 18^. Tlie plaintiffs claim £oOO damages. Action against Shijwirnerfor Ddaij and Deviation. 1. The plaintiffs are wholesale merchants in the city of Statement London and at Melbom-ne. The defendants are shiijuwners. f ^l"^™ ^ tor tlevia- 2. On or about the 1st of July, 1876, it was agreed by chai'ter- tion and party made and entered into by and between the plaintiffs and ^^^^' the defendants that the defendaiits' vessel the " V." should forthwith load a full cargo of from the plaintiffs' warehouses, and then proceed with all due despatch and without deviation to Melbom-ne, and there deliver the said cargo to the plaintiffs <;r their assigns. 3. The " V." was duly loaded with a full cargo of fi-om the plaintiffs' warehouses, and on the 21st of July, 187G, sailed from the Thames on her voyage. 4. The " V." did not proceed ^\^th all due despatch on her said voyage and without deviation, but on the contrary, while on the said voyage she put into the port of A., where she lay f(jr a month, and into the port of C, where she lay for six weeks, and also wasted a long time in going to and coming from the said ports. 5. The "V." arrived at Mell)ourne tlu-ee months after the time she would have arrived there Init for the deviations and delays mentioned in tlie 4tli paragraph. G. In consequence of the premises tlie iilaintiffs were for a 234 CHARTER-PARTY. Statement of claim continued. long: time deprived of the use of their goods and lost several advantageous opportunities of selling the same, and were greatly damnified. The plaintiff's claim £500 damages. Defence that ship compelled to enter port through stress of weather. Set-off and counter- claim for Italance of freight. Statement of Defence and Counter-claim. 1. The defendants deny the allegations contained in the 4th paragTaph of the statement of claim. 2. The defendants say that it was a term of the charter- party mentioned in the 2nd paragraph of the statement of claim that the defendants should not be liable for any delay or deviation caused by the act of God or by any dangers or accidents of the seas. 3. On the Gth of August, 1876,while proceeding onhervoyage, the "V." encountered a heavy storm, and was compelled to run for refuge to the port of A. In entering the said port, the "V.," owing to the stress of weather, went aground, and was so damaged that a month elapsed before the damage done could be repaired and the vessel proceed on her voyage. 4. After leaving the said port of A,, the small-pox broke out amongst the crew of the said vessel. Several of the crew died, others were disabled by the disease, and the master of the "V." was compelled to deviate from his voyage, and put into the port of C. to obtain a new crew in order to prosecute the voyage. Owing to a difficulty in obtaining a crew, the "V." was detained at C. for six weeks. 4. The defendants do not admit the allegations contained in the 6th paragraph of the statement of claim. And by way of set-off" and counter-claim the defendants say : 1. That by the charter-party made between the plaintiff's and the defendants dated the 1st of July, 1876, it was agreed that the plaintiff's should pay to the defendants the sum of £2000 as freight for the " Y.," one-half to be paid on the sailing of the vessel, the other half on the delivery of the cargo at M. 2. £1000, the first half of the said fi-eight, was duly paid by the plaintiff's. 3. The " V." proceeded c»n her voyage, arrived at M., and the cargo was safely and securely deUvered to the plaintiff's. CHARTEE-PAETY. 23a 4. The plaintiffs have not paid the remaining half of the said freight. The defendants claim £1000. Another Form for Delay and Deviation. 1. The plaintiffs are merchants in Glasgow ; the defendant Statement „ , -I • ,c CM. ■>■> ^^ claim IS the owner of the steam-ship btag. for devia- 2. By charter-party dated the 28th of October, 1875, it was tiou and agreed between the plaintiffs and the defendant that the de- \l^^^^^ f^ets fendant's steam-ship the " Stag," then being on passage from from pre- Kurrachee to Liverpool should, with all convenient speed, sail f^^^f_ and proceed from any port or ports to any port or ports with cargo for owner's benefit, and having discharged the same, should sail and proceed as ordered at port of discharge of out- ward cargo (such port to be any port beyond Suez) to load either at Atyab, or at Rangoon, or at Bassein, or at Moulmain, but to load at one port only, from the agents of the plaintiffs, a frill and complete cargo of rice in bags, and being so loaded, should therewith proceed to Malta for orders to discharge at a good and safe port in the United Kingdom or on the continent, and dehver the same on being paid freight at a certain agreed rate, certain perils excepted, and that fom-teen running days should be allowed the said merchants for loading the said ship at the port of loading and waiting for orders at ports of call abroad, to commence and be computed twenty-four hom's after the master had given notice in writing to charterer's agents that he was ready for cargo, and ten days on demurrage over and above the said lying days at £40 per day. .3. The defendant's said vessel completed her said passage from Kun-achee to Liverjiool, and was there loaded with a cargo, to be carried for owner's benefit to Aden, as her port of discharge of outward cargo, and the vessel accordingly sailed for and arrived at Aden, where she discharged her said outward cargo. The plaintiffs say that all times elapsed and all things were done necessary to entitle the plaintiffs to performance by the defendant of the terms of the said charter-party, and to have the said ship sail and proceed with all convenient speed from the said port of Aden, to load at one of the ports men- tioned in the said charter-party. 4. The said shi}), altliough not prevented by any of the perils 236 CHARTEK-PARTY. Statement of claim for deviation and delay. Allegation of special damage. Rise in prices dur- ing period of delay. excepted in the said cliarter-piirty, did not proceed to one of the said ports in accordance with the said charter-party in that behalf, and the defendant canscd the said ship to deviate fi'om her said voyage, and the said ship did not wait for, and the de- fendant refused to accept, orders according to the terms of the said charter-party, and unnecessarily and improperly, and with- out sufficient or any cause or excuse, proceeded on another voyage from Aden to Jeddah, and there took on board a cargo, and sailed and proceeded therewith to the port of Singa- pore. 5. The vessel, after a long and unreasonable delay, sub- sequently proceeded to Bassein, and there took on board a cargo of rice for the plaintiffs, which duly arrived at the port of discharge. G. By reason of the premises the said vessel did not arrive at the said port of loading until long after the tune at which she ought to have arrived there, and her aiiival at the ports of loading and of discharge was much delayed, and the plaintiffs were compelled to pay more for the said cargo of rice at the said port of loading than they would otherwise have paid, and were obliged to sell the same at a far lower price than they otherwise would have done, and the cargo shipped by the said vessel was not a February shipment as it would have been if the vessel had proceeded to her port of loading according to the said charter-party, and Avas a much later shipment, and was of less value than a February shipment. The plaintiffs, moreover, by reason of the aforesaid breaches of the said charter- party, have incm-red hesi\j expenses and losses, and have lost the profits they would otherwise have made. 7. The plaintiffs have furnished the defendants with full particulars of their said losses and expenses, and have applied to the defendants to be indemnified in respect thereof ; but the defendants have refused to do so. The plaintiffs claim £3500 damages. Action for Damage to Cargo, the Vessel not being Staunch as widertaJcen in Ci/arfer-partg. Statement 1 . The plaintifiF company are ship-owners carrying on busi- of claim • Yoi-kslm-e, and having an office in London. The for damage ' ^ CHARTER-PARTY. 237 defendants are owners of the steam-ship " V." of the port of Statement H. trading between the ports of London and G. continued. 2. On or abont the 27th November, 187(;, the defendant — - E. L., managing oAnier of the steam-ship " V.," on behalf of throu|h the defendants as owners of the " V.," made and entered into vessel not a charter-party vnth the plaintiff's in the words and fignres fol- sta^inch. lowing, that is to say. [Here follows the charter-party at fnll length (which was a letting of the " V." for one month), containing the usual repre- sentation by the o-Riiers that the ship is then " tight, staunch, strong," and an undertaking that during the time of the charter-party they will maintain her in a thoroughly efficient state.] 3. Thereupon the " V." was placed at the disposal of the plaintiffs, and the plaintiff's had the hire and employment of the said " V." under and in pursuance of the said charter- party. 4. The " V." was not when so placed at the disposal of the charterers, nor at any other material time, tight, staunch, strong, or fitted for the service ; but her ballast tank was de- fective and leaky. 5. The vessel was not maintained by the defendants in a thoroughly efficient state, but the -said ballast tank was suffered to remain leaky and defective as aforesaid. G. By reason of the premises and not otherwise, certain bales Allegation of wool, particulars of which are contained in the schedule to °q,jj°*^q°i this statement of claim, which were shipped by the plaintiff's on and damage board the " V." to be carried fi-om the port of London to the g°^'Jg "" port of G., became and ^^•ere damaged and rendered of no use to the plaintiff's, and the plaintiffs lost the freight and profits they would have earned by the carriage and the safe delivery of such goods, and the plaintiff's were compelled to and did ])ay divers sums oi" money, for which they were liable to third pei'sous, to the amount of £100 4s. 7(L, particulars whereof are annexed hereto by way of schedule. The plaintiff's claim: — (1.) £150 damages. (2.) Interest thereon at tlie rate of £5 per cent, per annum from the issuing of the vrrit in this action till judg- ment. 238 CHOSE IN ACTION. Schedule referred to in state- ment of claim. Schedule. Messrs. T. Ambler & Sons, 6 bales . .£11 7 7 Messrs. G. Hirst & Sons, 4 bales . . IG Sii' J. Malt & Sons, 60 bales . . . 77 16 Survey fee 110 £106 4 7 Cheques. See Bills of Exchange— Bankers. Statement of claim by assignee of debt against debtor. Provision of Judica- ture Act, 1873, as to assignment of choses in action. Chose in Action («). Action on an assigned Debt. 1. The plaintiflF is an architect at K. in W., and the defend- ant is a printer and bookseller there, and proprietor of the K. Times newspaper. (a) Formerly, choses in action were not assignable ; biit gradual statutory inroads were made on this rule, so that before the passing of the Judicature Act, 1873, there were several cases in which choses in action might have been assigned. By that Act, however, the old rule was totally swept away. The 25th section, sul^-sect. 6, enacts that " any abso- lute assignment by writing under the hand of the assignor (not purport- ing to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing shall have 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, shall be and be deemed to have been effectual in law, subject to all the equities which would have been entitled to priority over the right of the as- signee if this 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 : Pro- vided always that if the debtor, trustee, or other jjersou liable in respect of such debt or chose in action shall have had notice that such assign- ment is disputed by the assignor or any one claiming under him, or any other opposing or conflicting claims to such debt or chose in action, he shall be entitled, if he think fit, to call upon the several persons making claim thereto to interjjlead concerning the same, or he may, if he think fit, pay the same into the High (.'om't of Justice under and in conformity with the provisions of the Acts for the relief of trustees." Relief may be had by interpleader under tliis sub-section l>efore action CHOSE IN ACTION. 939 2. The plaintiff did work as an architect for the defendant Statement in and about certain alterations to the K. Times office, and in ^^^ assi^ee making plans and superintending works done for the defendant, of debt and in attending at an arbitration in respect to matters in dis- debtor. pute between the defendant and one M., and in reporting and negociating on behalf of the defendant as to the matters in dispute. The plaintiff's charges in respect of the said work amount to £89 45., of which the plaintiff has received on ac- count £40, leaving a balance due to him of £49 4s. Full particulars of the said charges have been delivered to the de- fendant, and they are fair and reasonable. 3. Kr. S., lately of K., builder, did certain work as a builder for the defendant prior to the 10th May, 1877, and there was then due to him from the defendant in respect of such work the sum of £100 155. %^d. Full particulars of the said sum have been delivered to the defendant. 4. On the 10th May, 1877, the said E. S. absolutely Allegation assigned to the plaintiff' by agreement in writing under the ^g^^^^oT" hand of bim the said E. S., not purporting to be by way of debt and charge only, the said debt of £100 15s. 6|f?. then due fi'om 5°fg^^^*°t the defendant to him; and on the 16th May, 1877, express notice in writing was given to the defendant of the said assign- ment. 5. The defendant has not paid the said sum of £49 4s., or the said sum of £100 15s. 6|f7. The plaintiff claims £149 19s. G|f7. Statement of Defence. 1. As to the 2nd paragraph of the plaintiff's statement of Defence. brought (J?e iYew Hamhnrg Railway Co., W. N. 1875, 239); but the sub-section does not make anything an assignment which was not an assignment before either at law or etjuity. {Sckvocdcr v. Central Bank Debtor in of London, 34 L. T. N. S. 73.5 ; 24 W. R. 710.) Therefore a cheque is action on not an assignment by the drawer of the amount of the chc'iue in the assignment banker's hands to the credit of the payee. {Ihid.) In Young v. Kitchen of debt (2<) W. R. 403), as a defence to a claim by the jdaintifE as assignee of may set off the balance of a debt due from the defendant to D. for work done under claim a contract, the defendant counter-claimed against the plaintifE for damages against for breach of the contract by D., and it was held that the defendant debtor, but was entitled to counter-claim for such damages, but only as a set-off to may not the plaintiff 's claim. In such a case the couuter-claim should show on counter- tbe face of it that the defendant does not seek damages against the claim for jdaintifi, but only to set them off against the plaintiff's claim. it. 240 CHOSE IN ACTION. Statement of ilefcuce. Payment into Court. That con- dition pre- cedent, viz., the obtaining of archi- tect's cer- titicate, had not been jjer- formed. claim, tlic defendant says that he does not admit the fii'st t^vo items of the plaintiff's particulars, namely, £1 Is. and £4 4s., as it was expressly agreed between the plaintiff and the de- fendant that the plaintiff should make no charge in respect of the matters for which the said charges are made; and as to the item of £82 18s. in the said particulars being a charge for commission at 5 per cent, on £1658, the total cost of works, the defendant denies that the same is a fair and reasonable charge, and says that it was expressly agreed between the plaintiff and the defendant that the plaintiff should not charge so much as 5 per cent, commission. The defendant admits that he is liable to the extent of 4 J per cent, commission. The balance due to the plaintiff in respect of the matters in the said 2nd paragraph mentioned ' is £3.5 14s. only, and not £49 4s., and the defendant has brought into Court the said smn of £35 14s. in satisfaction of the plaintiff's claim, so far as admitted in this paragraph. 2. The averments contained in the 4th paragraph of the plaintiff"s said statement are not admitted. 3. As to the 3rd paragraph of the plaintiff's said statement, the defendant says that the sum of £100 15s. G^d. therein mentioned is made up of a sum of £40 Os. 6d. alleged to be the balance remaining due of R. S.'s contract price for doing the work in the said paragraph referred to, and also of divers sums claimed in respect of extras or additional works or altera- tions. As to the said £40 Os. Od. the defendant says that it was a condition of his contract with the said E. S. for the execution of the said work that the said balance should not be paid or payable or demandable until two months after the works should have been certified by the architect to be completed, and then only upon production of the certificate to that effect; and the defendant further says that the said works have not been completed, and that such certificate has not been given, and alternatively that two months did not elapse after the giving of any such certificate before this action was brought, and fiirther that no such certificate has been produced to the defendant. 4. As to the sums in the last paragi'aph mentioned which are claimed in respect of extras or additional works or alterations, the defendant avers that it was a condition of his con- tract with the said R. S. for the execution of the said work CHOSE IN ACTION. 241 that no charge or allo\Yance should be made for any extras or Assignee additional works or alterations, unless the same should have °* '\^^l 1 ■ -11 oiff 211 IIS L been ordered in wi'iting by the defendant's architect, and that debtor, should any extra alteration or addition be so ordered to be made Defence, by day-work, a day account must be delivered at the office of the said architect at the end of the week next ensuing after such day work should have been done, and that no account unless so signed and delivered should be allowed at the making up the accounts. And the defendant fm^ther avers that none of such extras or additional works or alterations claimed for were ordered in ^\Titing by the defendant's architect, or were other- ^\^se ordered by the defendant ; and alternatively, that if any such were ordered to be made by day work, a day account was not duly signed and dehvered in accordance with the before- mentioned condition. And by way of set-off" and counter-claim the defendant says as follows : — 5. It was a condition of the defendant's said contract mth Counter- the said E. S. for the doing of the works in the 3rd paragraph '=^^"^- of the statement of claim mentioned, that the said works should be covered in and the drains completed by the 1st day of Sep- tember, 1875, and that all the said works should be finally completed by the 1st day of May, 187C: and further that should the contractor fail to cover in the buildings and complete the said works within the periods respectively specified for the different parts of tlie said works, he should forfeit and pay the sum of £3 per week for every week such works should remain unfinished after those periods, which sum or sums so forfeited should be deducted out of the money which might then be or thereafter miglit become due to the said R. 8. and be retained as liquidated damages. 6. The said works were not covered in nor were the drains completed by the said 1st day of September, 1875; and all the said works were not finally completed by the 1st day of May, 1876, nor were they completed at Christmas, 1876, after which date the said R. S. did no further work to the premises. The said R. S. by virtue of the said condition forfeited the said sum of £3 for each of thirty-two weeks up to Christmas, 1876, and the defendant became and is -entitled to deduct the various sums so forfeited out of any 242 CHOSE IN ACTION. Assignee uioucy whicli may have been due to the said R. S, at the of debt ti,j^(3 in the 3rd paragi-aph of the plaintiff's statement of debtor. claim mentioned. And the defendant has sustained damage Countev- by reason of the said delay in the completion of the said claim. ^.^j,i,_ 7. As to the said sum of £40 0.s. Gd. in the 3rd paragraph hereof mentioned, the defendant further says that the said E. S. did not do and complete the whole work stipulated for in the said contract, but left undone and unfinished a part thereof amounting to the value of £10. 8. It was also a condition of the defendant's said contract that the said R. S. should repair all damage done to the adjoin- ing premises during the execution of his said contract, and the- defendant avers that damage of that nature was done to certain adjoining premises of one W. F. R., and the said R. S. failed to repair the same, whereby the defendant incurred the expense of £17 195. 4:hd. in repairing the same. The defendant claims to recover £96 in respect of paragi-aph 5 for sums forfeited up to Christmas, 1876, and also to re- cover the said sums of £10 and £1 7 19s. A^d., and alternatively to set off the said sums or so mucli thereof as may be sufficient against any claim of the plaintiff' in this action arising other- wise than under the 2nd paragraph of the plaintiff's state- ment of claim. Repli/. jjg J 1. The plaintiff joins issue upon the defence, except so far as. it admits any part of the statement of claim, and except the allegation that the defendant has paid £35 14s. into Court. 2. The plaintiff accepts the sum of £35 14s. paid into Court in satisfaction of £35 14s., parcel of the money claimed in this action. 3. As to the allegations contained in the counter-claim,, the plaintiff denies that there were any such conditions in the contract between the defendant and the said R. S. as are set out in the 5th and 6th paragraphs of the counter-claim. The contract under which the work was done consisted as to certain of the works simply of a tender and acceptance thereof, without any special terms or conditions, and as to the other part of the works there was no contract other than that im- CHOSE IN ACTION. 243 plied from the defendant giving orders for the work to be Assignee done. °* ^^''* against 4. The plaintiflF further says that the works were in fact done debtor. and completed long before the dates at which the defendant Reply, alleges them to have been completed, and he denies the allega- tions in the 6th paragraph. Even if the defendant were entitled to deduct £3 per week fur the weeks during which the works were unfinished, the amount would not be £96, but a much less amount. 5. The completion of the works tendered for within the times mentioned in the 5th paragraph of the counter-claim as the times within which they ought to have been completed, was prevented by the defendant ordering deviations from the said work and additional works, and by the premises on which the work had to be done not being put by the defendant in a state in which the work could be done. As to the drains they could not be completed until certain plumber's work, which the de- fendant procured to be done by other contractors, and not by the said R. S., had been done, and this was not done in time for the said R. S. to have completed the drains by the 1st of September, 1875, even if he had been under any contract to do so. 6. The plaintiff denies that the defendant suffered any damage by the non-completion of the work. 7. The plaintiff admits that the defendant paid £17 19s. 4|f?. in respect of certain work done to premises of W. F. R., but denies that it was for work which R. S. was bound to do under his contract with the defendant. 8. The said R. S. in fact did the said work amounting to £17 19s. A^d. at defendant's order, and the defendant, with knowledge of all the facts, paid him for it, and has not other- wise than by the said order and payment to the said R. S. incun-ed the said expense. The plaintiff says that the defendant is not entitled to recover back the sum so voluntarily paid. 9. The ijlaintiff furtlier says that even if the defendant is entitled to recover the said sum of £17 19.s-. 4^. from the said R. S., his riglit to do so is nut an equity having priority over the right of the plaintiff as assignee of the debt in resi)ect of which he is suing, nor is the defendant in any way entitled to set-off the said sum against the jjlaiutiff as such assignee. B 2 244 CLERGYMEN. Rejoinder. Assignee The defendant joins issue upon the plaintiff's reply, excepting of debt t]^Q igt and 2nd paragraphs thereof, and so much of the 7th para- debtor, graph as admits the payment of £17 IDs. -^^d. by the plaintiff. Clergymen. Claim ly a Clergyman to Possession of Rectory and Glebe La?ids. Claim by 1. In the year 1864 the plaintiff was presented, instituted, clergyman ^^^ inducted to the rectory and living of L., in the county of sion of G., and entered into possession of the rectoiy-house, glebe lands rectory and ^^^ profits of the said rectory and living, and continued therein until dispossessed as hereinafter mentioned. 2. In or about the month of Januaiy, 1867, the plaintiff requested permission fi'om C. R. M. T., the patron of the said living of L. aforesaid, to exchange livings with some clergyman to be approved by the said patron. 3. The said patron gi'anted the permission requested as afore- said, and the plaintiff thereupon entered into negotiations with one R. P., who was then the incumbent of the living of C, in the county of D., and the plaintiff subsequently submitted the name of the said R. P. to the patron in tenns of the arrange- ment aforesaid. The said patron, after making personal in- quiries, and satisfying himself by the said inquiries of the suitability of the said R. P., approved of the proposed exchange of livings, and promised that he would do all things necessary on his part to enable the plaintiff and the said R. P. to carry out an exchange of their livings as aforesaid. 4. Relying on the said promise, and for the purpose of cann- ing out the said exchange, the plaintiff executed a deed of resignation of the living of L., and delivered the same into the hands of the registrar of the Bishop of L. Before exe- cuting and delivering the said deed of resignation, the plaintiff had, with the sanction and to the knowledge of C. R. M. T., the patron aforesaid, requested and obtained from the bishop per- mission to exchange livings ^ith the said R. P. ; and at the time of executing and delivering the said deed the plaintiff explained i CLERGYMEN. 245 fully and explicitly to the registrar aforesaid his intention and ^/g^j.^'^j^^^ the object which he had in view in executing and delivering the to posses- said deed, and the registrar on behalf of the bishop aforesaid s^oD^«f ^^^ accepted deliveiy of the said deed, subject to the express con- gieUe. dition that the said deed of resignation should be void and of no effect if the aforesaid exchange of hvings was not perfected. 5. Notwithstanding the premises, C. R. M. T., the patron aforesaid, would not and did not fulfil his part of the agreement in paragraph 3 mentioned, and did not and would not present . the said R. P. or do what was necessaiy on his part to carry out and effectuate the exchange of livings proposed between the plain- tiff" and the said R. P., but falsely claiming and pretending to have obtained an absolute legal right to dispose of the plaintiff's said living by the resignation executed and delivered as aforesaid, and in \nolation of his promise and agi'eement aforesaid, and not regarding the plaintiff's remonstrance, claimed a right to present, and did upon such false claim present, his nephew, the defendant, to the plaintiff's said living at L, G. The defendant, in full knowledge of all the premises and despite the remonstrances of the plaintiff, accepted the said presentation, and pretending right therefrom, broke and entered the rectory-house and glebe lands and living of L. aforesaid, and expelled the plaintiff from his possession thereof, and took and received to his own use all the issues and profits and the bene- ficial use and occupation of the said rectory-house, glebe lands, and rectory and living of L. aforesaid, and has continued ever since to keep the plaintiff ejected as aforesaid ; whereby the plaintiff during all that time has lost and been deprived of the l)encficial use and occupation of the said rectory-house, glebe lands, and rectory and living as aforesaid, and of all the issues and profits thereof. And though the defendant has been repeatedly desired and required to vacate and yield up posses- sion of the rectoiy-house, glebe lands, rectory and living afore- said, and the issues and profits thereof, he still continues to keep possession of the said rectory-house, glebe lands, rectory and living aforesaid, and to keep the plaintiff" ejected therefrom, and to convert to his own use the issues and profits thereof, to the plaintiff's great loss and injury. The plaintiff claims possession of the said rectory-house and 246 CLERGYMEN. Claim by glebe lands aforesaid, and £4000 for mesne profits from No- to^posses" veraber, 1867, until such possession shall be given. I posse sion of rectory ami slebe. Claim by a clergy- man for arrears of pension. Claim hij a Clergyman who has Ecsigned his Benefice for Pag- ment of Pension (a). 1. The plaintiff is a clerk in holy orders, and was till the Gth March, 1877, the incumbent of the vicarage of , in the county of C. 2. The defendant is also a clerk in holy orders, and is now, and has been, since the said Gth of March, 1877, the incumbent of the said vicarage. 3. By a declaration made on the 5th day of February, 1877, by and under the hand of the Bishop of , under the provisions of the Incumbents Resignation Act, 1871, it was declared that the said benefice should be void of the person of the plaintiti' to all intents and purposes of the law on and after the 6th day of March, 1877, subject, nevertheless, to the payment, by half- yearly payments, fi'om the said Gth day of March, 1877, out of the revenues thereof of the yearly pension of £450, the first of which half-yearly payments should be payable on the Gth day of September, 1877, and future half-yearly payments at periods of six months from such day unto the plaintiff for his life. 4. The plaintiff accordingly became entitled to be paid on the said Gth day of September, 1877, the sum of £225 out of the revenues of the said benefice by the defendant, but the defendant has not paid the same. The plaintiff' claims £225. When clergymen may get a pension on resignation. (a) By the 34 & 35 Vict. c. 44, clergymen permanently incapacitated by illness may resign their benefices, and a pension not exceeding one- third of the annual value of the benefice resigned may be awarded to them; and by sect. 10, " The pension so allowed shall be a charge upon the revenues of the benefice, and shall be recoverable as a debt at law or in equity from the incumbent of the said benefice by the retired clerk, his executors, administrators, or assigns, but such pension shall not be transferable at law and equity. COHfiEISSION. 247 Commission («) . Claim for Commission hij a House-agent. 1. The plaintiff is a house-agent and surveyor, residing and co^miggJon carrying on business at Wimbledon, in the county of Surrey, by a and the defendant is a surgeon practising at the same place. (a) In the ordinary course of commercial dealings, a compensation is impliedly understood to be due to every person who undertakes the duties and services of an agent, the amount, in the absence of agreement, being governed by the usage of trade ; but where there is an agreement as to the amount and mode of payment, that cannot be departed from. Thus, a commission agent employed to negotiate a sale upon the terms that he is to be paid a commission on the amount of purchase-money, or on the happening of a certain event, will not be entitled to any commission \intil the purchase-money has been received, or the event has happened, unless there has been fraudulent delay or wilful neglect on the part of the employer. {Bull v. Price, 5 M. & P. 2 ; 7 Bing. 237 ; Alder v. Boyle, 4 C. B. ()35.) 8o if the commission is to be paid on the '• net proceeds," it is payable only on the actual sum which reaches the pocket of the principal, after deducting all charges and expenses. iCaim V. Ilorsfall, 1 Exch. 519.) IShipbrokers are said to be usually entitled by the custom and usage of trade to 5 per cent, commission upon the freight payable upon charter-parties obtained by their exer- tions ; and the right to the commission does not depend upon the fact of the ship's earning freight, and the claim is not liable to be cut down by the loss of the vessel or her failure to get a cargo. (IIlll v. Kitchlng, 3 C. B. 30G. See also Burnett v. Bouch, y 0. & P. 624 ; Boultoti, ■V. Jones, 2 H. & N. 5G4.) In Lockwood v. Levlcl (8 C. B. N. S. 603 ; 2!» L. J. C. P. 340) it was decided that where a commission agent employed by a manufacturer to obtain orders is to receive a commission " on all •"•oods bought " l)y persons from whom he obtains orders, the commission ?s earned as soon as a valid bargain of purchase and sale has been made lietween the manufacturer and the purchaser introduced by such agent, whether the goods are at the time in existence or not, and whether the contract is or is not eventually carried out, and whether it turns out a Ijad bargain to the principal or a good one. It sometimes happens that a man having a house to let or sell places it in the hands of several house-agents, with instructions to secure a tenant or purchaser — in such a case the successful agent is alone entitled to commission, unless in- structions have Ijcen given to the other house-agents to advertise the house, or render some special service entitling them by the custom of the trade to some remuneration. {Pvickett v. Badger, 1 C. B. N. S. 2!)6 ; 26 L. J. C. P. 33.) But if the relation of buyer and seller is really brought about by the act of the agent, he is entitled to his commission, although the actual sale was not effected by him. {Green v. BartleU, 14 0. B.N. H. 685.) An authority to sell or let upon certain terms and for a certain com- mission is revoked by the death of the principal before the authority has been acted upon and executed, or if the agent sells after the death of his principal, he will not be entitled to the commission unless the jicrsonal representative lias renewed the contract with knowledge of the contract. {(Jaiiij>a?uirl v. Woodhurn, 15 C. B. 400; 24 L. J. C. 1'. 13.) The right of the agent to be reimbursed upon the revocation of his authority, otherwise than by death, depends upon the agent. All agents entitled to commis- sion. Ship- broker's commis- sion. House- agent's commis- sion. How agent's right to commis- sion afiTec- tcd by death of principal. 248 COMMISSION. Claim for -• On ov about the 2nd of April, the ddendant called on the coiuiuission plaintiff and requested and authorised him to let a certain agcnt"^^' dwelling-house belonging to and then in the occupation of, the defendant, on the terms that the defendant should pay the plaintiff 5 per cent, commission on the amount of one year's, rent in the event of the plaintiff succeeding in finding a suit- able tenant for the said house. 3. On the said 2nd of April the defendant also authorised and requested the plaintiff to look for a suitable residence for the occupation of the defendant and his family, and it was then agreed by and between the plaintiff and defendant that the latter should pay the plaintiff 1 per cent, commission on the amount of the rent for one year, and should also repay him the amount of all expenses which might be incurred by the plaintiff in endeavouring to find a suitable house as before mentioned. 4. The plaintiff succeeded in finding a suitable tenant for the defendant's said dwelling-house, and such tenant is now in possession of the same under a lease reserving an annual rent of £280. 5. The plaintiff incurred expenses amounting to £11 in travelling, advertising, and corresponding by means of letters and telegraph, with a view of finding and securing a suitable house for the defendant, and the plaintiff did find such suitable house, but the defendant refused to take it. 6. The defendant has not paid the plaintiff the amount of the said commission and expenses. The plaintiff claims : — £ for commission on the rent of the house referred to in paragraph 4. £ for expenses incurred and commission on the rent of the house referred to in paragraph 5. special terms of the agreement and the usage of trade. (See on this subject, Simpson v. Lamb, 17 C. B. 616.) Where a house-agent, employed to sell at a given price, succeeds in finding a purchaser but the prin- cipal then declines to sell, the agent is entitled to sue for a reasonable remuneration for his services. For all vi^ork done by the agent in dis- charge of his business as agent, he is paid by his commission, and can make no extra charge ; but for work done by order of his principal beyond his duty as agent, he is entitled to make an extra charge. {Marshall v. Parsons, 9 C. & P. 658.) mission. COMMISSION. -249 Claim hy several Plaintiffs in the alternative for Commission on Sale of a Steamer {a). 1. The plaintiff J. P. carries on business as a shipbroker Claim ^ in London. The other plaintiffs also cany on business as ship- brokers brokers in London under the style and firm of A. H. & Co. ^°^^2' The defendant is a native of Spain, and was the owner of the steamship " Amboto " until the sale thereof hereinafter men- tioned. 2. In the month of May, 1876, the defendant, then in England, agreed with the plaintiffs that in consideration the plaintiffs would introduce to the defendant a person or persons who should purchase the said steamship the " Amboto," the defendant Avould pay to the plaintiffs commission at the rate of 2i per cent, upon the purchase-money of the said vessel. 3. In the said month of May the plaintiffs introduced to the defendant, xs-ithin the meaning of the said agreement, certain persons trading as the Inman Steamship Company, Limited, who subsequently purchased the " Amboto " at the price of £19,000. 4. Upon the completion of the said purchase coimnission upon the said purchase-money at the rate of 2-| per cent., viz.» £475, became due and payable fi-om the defendant to the plain- tiffs under the said agreement. 5. The plaintiffs will, in the alternative, contend that the defendant made the aforesaid agreement with some or one of them, and that he is now liable to pay to some or one of them the said sum of £475 commission under the said agreement. G. The said sum of £475 is due from the defendant to the plaintiffs, or to some or one of them, for work done by the plaintiffs, or some or one of them, for the defendant, and at his request, and f(jr commission and reward fi'om the defendant to the plaintiffs, or to some or one of them, in respect thereof. Application has been made to the defendant for payment of the said amount, but he refuses to pay the same, or any part thereof, to the plaintiffs, or any one of them. The plaintiffs, or in the alternative some or one of them, claim or claims £475, with interest until judgment. {a) By Order XVI. r. 1 several plaintifEs may in the same action claim together in the alternative. (Sec ante, pp. 3, 4.) 250 COMMISSION. Ship- brokers' claim for commis- sion. Auction- eer's claim forcommis- sion. Claim for Commission for fuiding a Charterer. 1. The i^laintiffs arc shipbrokers cariying on business at No. , Street in tlie city of London. The defendants are niercliants carrying on business at No. , Street aforesaid. 2. In December, 187G, the plaintiffs were employed by the defendants to find a charterer for tlie defendants' ship " H." from India, upon the terms that the defendants should pay the plaintiffs a commission of 1 ^ per cent, on the freight that might be obtained. 3. The plaintiffs having found that Messrs. S. F. & Co. of London and of S. in India wanted a steamer fi'om S. to Europe, offered the defendants a charter fi'om S. by Messrs. S. F. & Co. 4. The defendants having been thus introduced by the plaintiffs to Messrs. S. F. & Co. as persons wanting a charter from S. to Europe, entered into a charter with them of the steamship " H." from S. to Dunkirk at the fi'eight of £5754. 5. The said charter was found by the plaintiffs for the de- fendants, and was obtained by them upon and in consequence of the introduction of the plaintiffs. 0. All conditions have been fulfilled and all things have happened and been done, and all times have elapsed necessary to entitle the plaintiffs to be paid commission on the said freight at the rate of li per cent.; but the defendants have not paid the same nor any part thereof. The plaintiffs claim : Claim hy an Auctioneer and Valuer for Commission on a Sale. 1. The plaintiff is an auctioneer and valuer carrying on business at , in the city of London. 2. The defendants are furniture dealers carrying on business at , in the county of . 3. In the month of , 1877, the plaintiff was retained and employed by the defendants as auctioneer and valuer to value and sell for them certain furniture, fittings, and effects belonging to the defendants, being at that time on the premises known as the in W. Road. 4. In the month of , 1877, the plaintiff, in pursuance of the said retainer and in accordance with the defendants' instructions to liim, did value and effect a sale of the defend- COMMISSION. 251 ants' said furniture, fittings, and eflFects, for the simi of £2300, Auction- and thereniDon there became due and payable by the defendants forcommis- to the plaintiff the sum of £115 commission at 5 per cent, on sion. the aforesaid piu-chase-money. 5. The said rate of 5 per cent, is the usual and customary rate of commission on valuations and sale in similar cases. 6. All conditions have been fulfilled, all times elapsed, and all things happened necessary to entitle the plaintiff to be paid the aforesaid sum of £115, but the defendants have not paid the same nor any part thereof. 7. The plaintiff ^\'ill also in the alternative claim the same sum as due for work done, journeys taken, and money expended by him on behalf of the defendant at his request. The plaintiff claims : — Claim for Commission hy an Army Agent for effecting a Regimental Exchange. 1. The plaintiff is an army exchange agent carrying on Claim for business at . The defendant is now a captain in the — Foot, and was at the time he employed the plaintiff, as herein- agent, after mentioned, a captain in the Fusiliers. 2. In or about September, 1876, the defendant negotiated with the plaintiff with the \dew of effecting an exchange from the defendant's then regiment, at that tune stationed at M., and gave the plaintiff a written authority to act as his agent in the matter of the exchange ; and it was thereupon agreed by and between the plaintiff and the defendant that the ex- change should be left entirely in the hands of the plaintiff, and that when the exchange should have been carried out, the defendant should pay to the plaintitt" the sum of £20 in addi- tion to the customary fee of £20 which would have been payable to the plaintiff on the completion of the negotiations. ?>. In pursuance of the said an-angement, the plaintiff" in- troduced the defendant to several officers in the army, and among them to a Captain M., then of the regiment ; and the plaintiff for some time carried on negotiations on behalf of the defendant with the said Captain M. with the view of effect- ing an exchange. 4. In December, 1876, after the negotiations had been for some time carried on by the plaintiff as stated in the last i)i'e- commission by an anuy 9:"i-> COMMISSION. Claim for Ceding paragraph, and although the plaintiff was ready and comniissiou ^yiijing to Continue the said negotiations, the defendant wrong- agent.' ftdly and without any reasonable cause, and in breach of his agreement with the plaintiff (mentioned in the 2nd paragi-aph hereof), withdrew the plaintift"s authority to act on his behalf in the matter of the said exchange. o. Shortly after having withdra^\'n the said authority the defendant effected an exchange of regiments with the said Captain M., and the said exchange was duly notified in the Gazette. The plaintiff claims : — (1.) £40, being the amount due to him by the agreement mentioned in the 2nd paragraph, or (2.) In the alternative £40 damages for the breach of the said agreement by the defendant set out in the 4th paragraph hereof. by the Ijlaintiff. Commission u^wn a valuable Contract procured hy the help of the Plaintiff. Commis- 1. The defendant, at all times material to this pleading, was sionupona ^j ^ ^^^ ^ Messrs. R. & Sons, the manufactm-ers of the R. contract '^ ' _ ■ procured rifle in America, and was employed by the said Messrs. R. & Sons to obtain contracts for and to promote the sale in Europe and elsewhere of the R. rifles. 2. In July, 1874, the defendant was desirous of obtaining for the said Messrs. R. & Sons a contract with the Spanish government for the supply of 130,000 R. rifles. 3. The defendant applied to the plaintiff for advice and assistance in the matter, and in consideration that the plain- tiff' would use his best endeavours and exertions to procure for the defendant the said contract, the defendant promised the plaintiff that if such a contract should be procm'ed, and if the said Messrs. R. & Sons should, under the said contract, be en- titled to any margin or surplus moneys over and beyond a certain figure then named, the defendant would pay from time to time to the plaintiff any moneys from time to time received by the defendant from Messrs. R. & Sons in respect of such margin or surplus moneys until the plaintiff should have re- ceived (1) a sum equal to the amount of three francs per arm on the number of guns included in the said contract; and (2) if COMMISSION. 253 the said margin or sm-plus moneys should be sufficient to Commis- admit of the payment thereof, a further sum equal to the ^^'^^ °^ ^ coiitriict amount of one franc more per arm on the number of guns so procured included. 'ifai^ntiff 4. The plaintiff thereupon exerted himself to procure the said contract for the defendant, and ultimately through the plaintiff's exertions, the said contract was procured by the de- fendant fi'om the Spanish government. The rifles in respect of which the said contract was made have all been delivered by Messrs. E. & Sons to the Spanish government, and the moneys payable by the Spanish government to Messrs. E,. & Sons have aU been paid. 5. Under the said contract, Messrs. R. & Sons became and were entitled to a certain margin or surplus moneys over and beyond the said figm'e. G. On the 15th day of June, 1875, the plaintiff brought an action against the defendant (which action is still pending) to recover, amongst other things, moneys fi"om time to time received by the said defendant ft-om ]\Iessrs. R. & Sons in respect of the said margin or surjilus moneys. 7. Since the issuing of the wi'it in the said action, divers further moneys have been from time to time received by the defendant fi'om Messrs. R. & Scms in respect of the said margin or sui-plus moneys, which said further moneys are applicable to the payment by the defendant to the plaintiff of the sums men- tioned in paragi-aph 3 of this statement of claim. The said moneys are however still due and unpaid. 8. The plaintiff in this action does not seek to recover in respect of any of the moneys recoverable by him in the said former action, but only in resj)ect of so much of the said moneys as have been received by the defendant since the said writ in the furmer action, and are not recoverable by the plain- tiff in the former action on tliat account. The plaintiff" claims : — (1.) £20,000 in respect of the premises. (2.) Such further or other relief as he may be entitled to. 254 COMMON CARRIERS. Against carrier for non- delivery and late delivery. Common Carriers («)• For precedents in actions against carriers of persons, see Negligence. Act ion for Non-delivery of some of the Goods se?it and late Delivery of others. 1. The plaintiff is a fishmonger, carrying on business at G. The defendants are common carriers of goods. Who are common cairiers. Common carriers bound to carry all goods offered to them. Bound to carry ■within a reasonable time. They are insurers of the goods they carry. What is " the act of tJod." (rt) Common Carriers by Land. — 117;^ are common carriers.] — A common carrier is a person who undertakes to transport from place to })lace for hire the goods of those who think fit to employ him. The owners of coaches and of carts and waggons carrying for hire are common carriers. Where a barge-owner lets out his barges to all that come to him and to only one person for each voyage, each being made under a separate agreement and the customer fixing the termini, he is a common carrier. (Liver Alkali, Co. v. Johnson, L. B. 7 Ex. 267 ; affirmed L. R. 9 Ex. 3.S8 ; 31 L. T. N. S. 95.) Railway, canal, and navigation companies may become common carriers (8 & 9 Vict. c. 20, ss. 86, 89 ; 8 & 9 Vict. c. 42, ss. 5, 6) ; and such companies are generally common carriers, but only as to such things as they publicly profess to carry. {Johnson v. Midland Raihv. Co., 4 Ex. 367.) Liabilities at common law.] — Common carriers are bound to re- ceive and carry all goods ofEered to them for which the person re- quiring them to be carried is ready and offers to pay reasonable hire. (Pickford V. Grand Junction Raibv. Co., 8 M. & W. 372 ; Garton v, Bristol and Exeter Raihv. Co., 30 L. J. Q. B. 273.) And they are bound to complete carrying within a reasonable time, having regard to all the cir- cumstances, but they are not responsible for the consequences of delay arising from causes beyond their own control {'Taylor v. Great Northern Railw. Co., L. R. 1 C. P. 38.5) ; and provided they carry by a reasonable and usual route, they are not bound to carry by the shortest route, even though enabled by statute to charge a mileage rate for carriage. {Mijers V. iMndonand fiotith-Western Raihv. Co., L. R. 5 C. P. 1.) Common cai'- riers are not bound to take extraordinary measures, if the road is ob- structed by snow, for accelerating the journey, though the delay may be injurious to the goods or their owners. {Bridden v. Great Northern Railw. Co., 28 L. J. Ex. 51.) Common carriers are, by the common law, insurers of the goods they carry against all accidents except the act of God {i. e. things which could not happen by the intervention of man, as storms, lightning, and tempest), and the Queen's enemies. In order to come within the exception of loss by the act of God as applied to the liability of common carriers, the loss need not have been caused directly and exclusively by such a direct, violent, sudden, and irresistible act of nature as the carrier could not by any amount of ability foresee or resist, so as to prevent its effect. A loss is a loss by the act of God if occasioned by the elementary forces of nature, unconnected with the agency of man or other caiise. If the loss is occasioned partly by the act of God as above defined and partly by some other cause which, if it had been the sole cause of the loss would have furnished a defence, the carrier will be entitled to immunity in respect of such loss, if he can show that it could not have been prevented by any amount of forethought and care reason- ably required of him. (See Nugent v. Smith, 45 L. 3. C. L. 697, App.) Carriers of live stock are not liable for injuries caused by an inherent COMMON CARRIERS. 9n; 2. On or about the 1st of Februar}% 1875, Messrs. F. & M., of B., acting for and on behalf of the plaintiflP, delivered to vice of an animal ; they are exempted from liability in this respect if they provide for the carriage a truck that is reasonably fit for the purpose. {Blmver v. Great Western RuUn: Co., L. R. 7 C. P. 655, explaining Carr v. Lancashire c^- Yorkshire Mailiv. Co., 21 L. J. Ex. 2()3 ; and see Rirlturchoii V. North Eastern BaUw. Co., L. R. 7 C. P. 75 ; and Gill v. :Manclir.'/i v. Mid- land Bailw. Co., 4 Ex. 3fi7 ; Oxlade v. North Eastern liaihv. Co., 26 L. J. C. P. 129.) Common carriers from a place within to a place without the realm are subject to the same liabilities as those within the realm. [Crouch v. London cf North- Western Raibv. Co. 28 L. J. C. P. 73.) Carriers may generally limit or modify their common law liabilities by contract, where persons are willing to enter into such stipulations with them ; but railway and canal companies can only limit their liability by contracts which are signed and which in the opinion of the Comi are reasonable (seejfost, p. 258). Thus a carrier of furniture for hire who stipulated with the customer that he should only be liable for breakages not exceeding £5 for any article, was held not liable for the destruction by fire without negligence on liis part of the whole of the goods received by him to be carried, and destroyed during the transit. {Scaifc v. Tarrant, 44 L. J. Ex. 234, Ex. Ch.) Statutory modification of Uabilit >/.']. —The liability of carriers has been modified by the following enactments, of which it is proposed to give a summary, adding after each the most important modern deci- sions ; — 11 Geo. 4 & 1 Will. 4, c. 68 (Carriers Act), explained by 28 & 29 Vict. c. 94. 17 & 18 Vict. 0. 31 (Railway and Canal Traffic Act). 31 & 32 Vict. c. 119 (Regidation of Railways Act, 1868.) 34 & 35 Vict. c. 78. The 11 Geo. 4 & 1 Will. 4. c. 68, provides :— Sect. 1. That no common canier b// land for hire shall be liable for the loss of or injury to any articles of the descriptions following ; (that is to aay,) — gold or silver coin of this realm or of any foreign state, or any gold or silver in a manufactured or unmanufactured state, or any precious stones, jewellery, watches, clocks, or time-pieces of any descrijjtion, trinkets, bills, notes of the Governor and Company of the Banks of England, Scot- land, and Ireland respectively, or of any other bank in Great Britain or Ireland, orders, notes, or securities for payment of money, Englisli or foreign, stamps, maps, writings, title deeds, paintings, engravings, pic- tures, gold or silver plate or plated articles, glass, china, silks in a mainx- factured or unmanufactured state, and whether wrought up or not wrought up with other materials, furs or lace (not machine-made. 28 & 29 Vict. c. 94), or any of them, — contained in any parcel which shall have been delivered, cither to be carried for hire, or to accompany the jierson of any passenger in any mail or stage coach or other public conveyance, when the value of such articles contained in such parcel or package shall ex- ceed £10, unless at the time of the delivery thereof at the office, warc- Against carrier for non- delivery, &c. Injury through vice of animal carried. Wear and tear, &c. CaiTiers may limit their Ua- bility hy special contract. Statutory modifica- tion of liability. Can-ier by land not liable for loss, &c., of specified articles if above £10 in value, unless Value de- clared at time of delivery to carrier. 256 COMMON CARRIERS. Against carrier for non- delivery and late- delivery. Carriers Act, s. 1. Carrier may de- mand increased charge. To give a receipt for increased freight. 'General notices limiting liability invalid. the defendants, as such common carriers, and the defendants received from the said Messrs. F. & M. ten hamj^ers of cod, to Special con- tracts not affected. Act not to protect car- rier against the felon- ious act of his servant. Carriers by land and sea within Act as to land jour- ney. house, or receiving house of such common carrier, or to his book-keeper, coachman, or other servant, for the purpose of being carried or of accom- panying the person of any passenger, the value and nature of such articles shall have been declared by the person sending or delivering the same, and the increased charge hereinafter mentioned, or an engagement to pay the same, be accepted by the person receiving such parcel or package. Sect. 2 authorises the demand of an increased rate of charge for such articles, notified by a notice publicly affixed in the carrier's office, which all persons sending parcels are to be bound by without further proof of the same having come to their knowledge. Sect. 3 provides " That when the value shall have been so declared, and the increased rate of charge paid, or an engagement to pay the same shall have been accepted, as hereinbefore mentioned, the person receiv- ing such increased rate of charge or accepting such agreement, shall, if thereto required, sign a receipt for the package or parcel acknowledging the same to have been insured, which receipt shall not be liable to any stamp duty, and if such receipt shall not be given when required, or such notice as aforesaid shall not have been affixed, the " . . . . carrier . . . . " shall not have or be entitled to any benefit or advantage under this Act, but shall be liable and responsible as at the common law, and be liable to refund the increased rate of charge." By sect. 4, no public notice or declaration heretofore made, or hereafter to be made, shall be deemed or construed to limit or in anywise affect the liability at common law of any such public common carriers in respect of any articles of goods to be carried by them ; but all such common car- riers shall be liable, as at the common law, to answer for the loss of or injury to any articles and goods in respect whereof they may not be entitled to the benefit of the Act, any public notice or declaration by them made and given contrary thereto, or in anywise limiting such liability, notwithstanding. By sect. 5, for the purposes of the Act, every office, warehouse, or re- ceiving house, used or appointed by such common carrier, for receiving parcels shall be taken to be the receiving house or office of such carrier ; and any one or more carriers may be sued without joining their co- proprietors. By sect. (5, nothing in the Act shall be construed to annul or affect any- special contract between such common carrier and any other parties for the conveyance of goods and merchandises. By sect. 7, a person who has insured, as above, may recover back the extra charge as well as the value of the goods lost or damaged. By sect. 8, nothing in the Act shall be deemed to protect any common carrier for hire from liability to answer for loss or injury to any goods whatsoever arising from the fdoniovs acfx of any coachman, guard, book- keeper, porter, or other servant in his employ, nor to protect any such coachman, &c., from liability for any loss or injury occasioned by his own personal neglect or misconduct. By sect. 9, common carriers shall be liable to pay only the actual value, as proved, not exceeding the declared value, together with the increased charges paid by the owner. Contracts to carry partly by land and jfavfhj hy sea are divisible, and as to the land journey, the carrier is within the protection of the above Act. {Lc Conteur v. London and South- Western Railw. Co.,!^. R. 1 Q. B. .54 ; Baxendale v. Great Eastern Railw. Co., L. R. 4 Q. B. 244, Ex. Ch.) COMMON CARRIERS. 257 be by them safely and secui-ely earned to M., and there, within a reasonable time, delivered to the plaintiff. It was held that a packed waggon sent for carriage by the defendants is a parcel or package under the 1st section of the above Act. ( Ulti/itf V. Lancashirr ,)'• Yiri-hsMre lldihr. Co.. L. R. !> Ex. 67.) So the frame of a pictui-e as being accessory to the picture itself. {Henderson v. London and South We.stern Jlailn. Co., L. R. 5 Ex. 90.) Where a packing case contains articles some within the statute and some not, the value of the case and of the articles not within the statute may be recovered, though the statute has not been complied with as regards the articles within the statute. {Tread win v. Great Eastern Ilailw. Co., L. R. 3 C. P. 308.) Where the plaintifE sent a valuable picture by railway and declared its natvire and value at the time of its delivery for carriage, and the com- pany did not demand any increased rate to which they were entitled under section 2 of the above Act, and only the ordinary charge was paid, the carrier was held not protected by the statute for an injury to the picture during the journey. {Behrens x. O rent Xortlwrn Ralhv. C'r*., 7 H. & N. 950, 953 ; 31 L. J. Ex. 299, 300.) The fact of a thing having been long delayed but not lost is not within the statute, and therefore such delay occasioning damage is actionable, though the things are not sent pursuant to the statute. {Ileum v. London and South Western Maibr. Co., 10 Ex. 793 ; 24 L. J. Ex. 180.) Since the passing of this Act, if articles mentioned in section 1 are sent without declaring their value, carriers who have complied with the requirements of the Act, are not liable for a loss even though occasioned by gross negligence on the part of their servants, or .^emble of themselves. {Jlinton V. Debhin, 2 Q. B. 040.) Wilful misfeasance would however render them liable {ibid). In an action against carriers for loss, where the value has not been declared, on the ground that the goods "were stolen by the carrier's ser- vants, it is not necessary that the plaintiff should prove that any par- ticular servant had stolen them. ( Vaughton v. London c^- JVorth-Western Jldil. Co., L. R. 9 Ex. 93 ; see also Kirkstule Brewery Co. v. Fa mess Itail. Co., L. R. 9 Q. B. 468. Railway and Canal Traffie Aet, 17 & 18 Vict. c. 31.— The 7th section provides that every railway or canal company shall be liable for loss of or injury done to any horses, cattle, or other animals, or to any articles, goods, or things, in the receiving, forwarding, or delivering thereof, occasioned Ijy the neglect or default of the company or its servants, not- withstanding any notice, condition, or declaration made and given by such company contrary thereto, or in any wise limiting such liability ; and every such notice, condition, or declaration is declared to be null and void. Provided that nothing therein shall be construed to prevent suf;h companies from making such conditions with respect to receiving, fonvarding, and delivering such animals, articles, &c., as shall be ad- judged })y the Court or judge before whom any ([uestion relating thereto sliail }je tried, to be just and reasonable. The section further provides certain linuts to damages recoverable for loss or injury to any of such animals (namely, a horse, £.")0 ; neat cattle, £15 each ; sheep and pigs, £2 each), unless the per.son sending or delivering the same to the com- pany shall, at the time of delivery, have declared them to be of higher value, ill which case the comi)any may charge a reasonable percentage on the excess of value above the limited sum, to be paid in addition to the ordinary charge, such percentage to be notilied in the manner pre- scribed by the Carriers' Act, (s. 2), and to be tnnding on the company as Against carrier for non- delivery aud late delivery. What articles are and what are not within the Act. Carrier.s not protected where delay ground of action. Evidence of loss by felonious act. Railway companies, &c., not liable beyond specified sums for certain animals un- less value ileclared and in- creased charge Ijaid. 258 COMMON CARRIERS. Against Cfiimnon carrier for nou- deliverv, &c. No special contract binding unless signed by tlie ijarty. Section only ap- plies to carriage over lines ■worked by company. Test for de- termining reasonable- ness of condition. Company not exempt by reason of consignor not having signed spe- cial agree- ment. If journey pai-tly by sea, a notice exempting from lia- bility for injury through fire, &c. , at sea, if published in the booking- office, is binding. 3. The defendants did not safely and secnrely carry the said goods, nor deliver them, or any of them, to the plaintiff, within a reasonable time. therein mentioned. Proof of the value and amount of injury to lie on the claimant. No special contract between the company and the other parties respecting the receiving, forwarding, or delivering of any goods, &c., shall be bincling on or affect such party, unless it be signed by him or the person delivering the goods for carriage. Nothing in the Act is to alter or affect the rights or liabilities of the company under the Car- riers' Act. with respect to the articles nicntioued in that Act. It has been held that this section only applies to carriage of poods over lines which the company are working themselves, and not to con- tracts by the company to carry over other lines. (Znnz v. South Eaxfern llml. Co., L. E. 4 Q. B. 039.) But where the company contract to carry over their own as well as other lines, they must prove that the loss did not occur on their line in order to avail themselves of a condition of non- liability. {Kent V. Midhind IhrU. Co., L. R. 10 Q B. 1.) As to what are reasonable conditions, see cases referred to in Pccli v. Staff ordslure Rail. Co., 10 H. L. C. 473 : 32 L. -I. Q. B. 241. It may be stated as a general principle to be kept in view in determining whether conditions are reasonable, whether they leave any reasonable alternative open to the customer, as of sending at a reasonably higher rate without such conditions. (lb.) A condition as to the risk of passengers' luggage is not within the above provision, viz., sect. 7. [Stewart v. London 4' North-Western Rail. Co., 33 L. J. Ex. 199). Nor does the section apply to goods received not in the capacity of carriers, as goods left in the cloak-room after the journey. (Van Toil v. South Ea.stern Rail. Co. 31 L. J. C. P. 241.) A railway company cannot exemi)t themselves fi'om liability on the ground that the consignor has not signed the special contract, as the proviso of sect. 7 only applies to cases where carriers seek to relieve themselves from liability by reason of a special contract. {Baxendalc \. Great Eastern Rail. Co., L. R. 4 Q. B. 244.) Regulation of Raihvays Aet, 1868 (31 & 32 Vict. c. 119.) The Act applies to the owners, whether companies, or individuals, of the whole or any part of a railway or tramway, whether worked by steam or other- wise. (Sect. 2.) By sect. 14 where a company, by through booking, contracts to carry any animals, luggage, or goods from place to place, partly by railway and partly by sea, or partly by canal and partly by sea, a condition exempting the company from liability for any loss or damage which may arise during the carriage of such animals, &c., by sea, from the act of God. the king's enemies, fire, accidents from machinery, boilers and steam, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, shall, if published in a conspicuous manner in the ofl&ce where such through booking is effected, and if printed in a legible manner on the receipt or freight note which the company gives for such animals, &c., be valid as part of the contract between the consignor of such animals, &c., and the company, in the same manner as if the company had signed and delivered to the consignor a bill of lading containing such condition. For the purposes of this section the word " company " includes the owners, lessees, or managers of any canal or other inland navigation. The 34 & 35 Vict. c. 78, enacts (sect. 12), that where railway com- panies under contract to can-y passengers or goods by sea procure the same to be carried in a vessel not belonging to them, they are liable for COMMON CARRIERS. 259 4. On the 4th of February, 1875, that is to say, two days after the said goods ought to have been delivered, the de- loss or damage to the same extent as though the vessel belonged to them. Mluit is sufficient delivery to carrier.'] — In the case of shipowners, a delivery of goods at the wharf or quay to some person accredited for the purpose, binds the shipowner. {British Coluinhia, ^-c, Co. v. ]Vetth'-\Jiij>, L. R. 3 C. P. 41)9.) A deliveiy to the driver of a stage-coach is sufficient to make the proprietor liable. Wliere the ordinary course of business at a railway office was to accept goods with a special limitation of liability in writing, and this was known to the plaintiff, who nevertheless caused his goods to be left with a railway porter at the station without complying with the regular coiu'se, and they were lost, it was held that the company was not liable fif< on contract, the delivery not being in due com-se, and there being no evidence that the porter had or iirofessed to have power to contract with the plaintiff othervvise than in the ordinary course. {SUm- v. Great Northern Rail. Co., 28 L. .J. C. P. 166.) Non-deliverii hy carrier.'] — In the absence of any express agreement or usage, carriers by land are bound to deliver to or at the residence of the consignee ; and with regard to carriers by sea, it seems to be suffi- cient if the captain deposits the goods in some jilace of safety, and gives notice to the consignee. (Hyde v. Trent ^j" Mersey Nariyation Co., .5 I. R. 597.) Though the consignor directs goods to be delivered at a particular place, the carrier may deliver them at another place agreed on between him and the consignee. {London ,')• JVorth We.tteni Hail. Co. v. Bartlett, 31 L. J. Ex. 92 ; and Cork Bi-itiUeries Co. v. Great Southern <5' Western Had. Co., L. E. 7 H. L. 2()9). It was, however, intimated in the last case that if there had been a special contract between the consignor and the carrier, it would have been different. If the carrier delivers at the place directed in accordance with the ordinary usage, he is not liable, though he delivers them to a person the consignor did not name. {McKean T. Mclcor, L. R. 6 Ex. 36.) Where there has been a delivery, actual or constructive, though the goods remain on the carrier's premises, he is no longer liable as a carrier, but only as a warehouseman, or on any special terms he may think proper to impose on the customer, and the contract is not affected by any of the statutes relating to carriers. {Shepherd v. Bri.itol ^' Exeter Bail. Co., L. R. 3 Ex. 189.) If at the consignee's address there is a refusal to accept them, the carrier becomes an involuntary bailee of them, and is only bound to act with reasonable care with reference to their custody. {Heugh v. London ^- Xorth Western Bail. Co., L. R. 5 Ex. ol.) And if such refusal is authorised by the consignee, the carrier may recover fi'om him the expenses reasonablv incurred in taking care of the goods. {Great Nortliern Bail. Co. v. Sn-afficld, L. R. 9 Ex. 132.) Measnre of damaye.s:]— The \i\ainti1ii is entitled where goods are lost or destroyed to recover their market value at the jdace and time at which they ouglit to have been delivered, as distinguished from that at which they were delivered to the carrier ; if there is no market for the sale of such goods at that place, the jury must ascertain their value by taking their price at the place of manufacture together with, the cost of car- riage, and allowing a reasonable sura for importer's profits. (Bice v. Baxendale. 30 L. .1. Ex. 371 (H. of L.) ; ff Haiilati v. Great Western Bail. Co., 34 L. J. Q. B. 154.) In cases of delay in the transmission, the plaintiff may recover the difference between the market price of goods on the day when they ought to have been delivered, and the price when they were available Against commou carrier for non- deUvery, &c. Decisions as to what amounts to delivery to carrier. Where the carrier should de- liver. Carrier not liable as such for safety of goods after construc- tive deli- very. Jleasure of damage where goods lost or de- stroved. Measure of damage where goods delayed. 260 COMMON CARRIERS. Against common carrier for non- delivery and late delivery. Delay in tlie trans- luission. When value of contract lost by Begligence of carrier can be recovered. What damage cannot be recovered. Remote - nes.s.' ('onsignee generally the party to sue. — Hxceptions, fendants delivered to the plaintiff sLx of the said hampers of cod ; but the remaining four hampers 'of cod have never been delivered to the plaintiff. for sale owing to delay and damage caused by the defendants. {Collard V. South Eautern Bail. Co., 7 H. & N. 79 ; 30 L. J. Ex. 898.) Where owing to the delay of a month in the deliveiy of cloth which the plaintiff wanted immediately to make into caps, he lost the season, it was held that he could not recover the loss of profits he would have made on the caps, but that he could recover the amount of depreciation in the value of the cloth on account of the lapse of the season. { Wilson v. Lanca.^Mre Bnil. Co., 80 L. J. C. P. 282 ; and see Great Western Bail. Co. v. Bed- mayne, L. R. 1 C. P. 829.) In order to recover damages for non-sale owhig to delay by the carrier, there must be an actual contract to ])uy for a fixed price. {Ilart v. Baxendale, 16 L. T. N. S. 890, per Martin, B.) In the case of refusal to carry the same rule applies, as applies to- cases where there is such delay that the consignor has to seek other- means of transit. The rule is the same with regard to losses occasioned by delay in the actual transit with this addition, that in the former- cases the plaintiff may recover the extra expense, if any, occasioned by having to employ other means. (Prior v. Wilson, 8 W. R. 260.) JVotice of j/ro.sj)ectire jjrojit or loss.'\ — It is necessary to enable a con- signor to recover for the loss of a beneficial sub-contract or other calcu- lated source of profit, that the carrier should have notice of the special terms of such contract or source of profit at the time the goods are de- livered to him for carriage {Home v. Midland Bail. Co., L. R. 7 C. P. 588, affirmed Ex. Ch. L. R. 8 C. P. 181), ar\(\. seinile a mere notice of a sub-contract will not be sufficient unless so given as to make it a term in the contract vrith the carrier that the latter will on breach be- liable for loss of contract. (S. C. L. R. 8 C. P. 189, 141, 145.) The same rule holds with regard to other losses from missing arranged or reason- ably anticipated sources of profit, as for instance the loss of the hire of goods sent for hire. {Hales v. London S,- North Western Bail. Co., 32 L. J. Q. B. 292.) Bemflte7ie.8, lt;9.) It was formerly necessary to plead such a defence specially ; now it is equally essential to set forth the defence with sufficient cxplicitness. Common Carriers by Sea.]— The owners of a general ship and the Shipowners viaster were liable at Common Law as common carriers, that is to say, and master they were bound to redeliver the goods delivered into their charge, the of ship act of God and the (Queen's enemies only excepted. But this extensive liable as liability is limited : (1) By the bill of lading which the master gives to insurers, tlic consignor of the goods and which evidences the contract Ijctween How this the i)arties ; and (2) Ijy the ojieration of several statutes. It is usual for liability is the bill of lading to contain an exception from liability for •' accidents restricted, or damage of the seas"; but this exception docs not protect the ship- 262 COMMON CARRIERS. Agjiinst common CArrier for non- delivery and late delivery. Lialiility nf shipowners and ship- master. Limited with re- spect to accidental tires on shipboard and rob- bery of certain articles. Shipowner not liable beyond so mncli a ton oftheship's tonnage. Neither shipowner nor master liable for default of pilot. Liability of carrier of ]}assengers less than that of carrier of eoods. The plaintifl" claims : — (1.) £10 for the deterioration in the value of the six ham- pers of cod. owner or the master from liability for loss or daman^c caused by the negli- o;eiice of the crew. {Grill v. Gcnernl Iron Srrrir Colliery Co., L. R. 3 C. P. 47(!, Ex. Ch.) So an exception for " breakage, leakage, or damage," does not protect the shipowners from liability for damage accruing through the negligence of their servants. {Martin v. Great Indian Pcninavlar Hail. Co., L. \\. .3 Ex. !) : Czeclt v. Gincral Stram Navigaiion Co., L. R. 3 C. P. 14.) But it is said that the elfect of such exceptions is to shift the onus of proof, and oblige the plaintiff to jjrove affirmatively the negligence of the defendant's servants. {'Uie Ilelcnc, B. & L. 42!), P. C. ; L. J. 3& P. C. ()H.) Coming next to the statutory limitations of the shipowner's lia- bility, there is the 17 & 18 Vic. c. 104, by which it is provided (sect. 508) that no owner (it must be noted nothing is said about the nmsfer, and he does not seem to get the benefit of this statute) of any sea-going ship shall be liable to make good to any extent whatever any loss or damage that may hapjien withont his actual fault or jj?-ivity of or to goods or things taken on board by reason ot fire happening on board, or of or to any gold, silver, diamonds, watches, jewels, or precious stones on board Ijy reason of robbery or embezzlement, unless the shipper shall at the time of shipping the same have inserted in his bill of lading, or other- wise have declared in writing to the master or shipowner their true nature and value. It will be noted that this statute protects a shipowner entirely for loss by fire not occasioned by his personal default occurring to goods generally ; but that the exemption for liability resulting from robbery of goods is strictly confined to certain classes of valuables specified in the Act. The next statute is the 25 & 26 Vic. c. 65, which by its 54th sec- tion enacts that the owners (no mention of the master) of any ship, whether British or foreign, shall not in cases which occur without their fault or j^rivit// be answerable in damages in respect of loss or damage to any goods, merchandise or other things on board, to an amount exceeding £8 for each ton of the ship's tonnage ; but it has been decided that the section does not extend to protect the shipowner for damage caused by delay. (London tf South Western Bail. Co. v. James, L. E. 8 Ch. 241.) A third statutory exemption is found in the 388th section of the 17 & 18 Vic. c. 104, which provides that neither owner nor master is liable for loss or damage occasioned by the fault or incapacity of a qualified pilot, where the employment of one is compulsory. Except, however, in cases coming within one or other of these exceptions, or where the bill of lading limits the liability of the shipowner and master of a general ship, the latter are both liable to the consignor or con- signee of the goods as insurers of the same, and bound to deliver safely unless the loss is occasioned by the act of God or the Queen's enemies. Carriers of persons — actions against.] — The liability of pas- senger carriers is more limited than that of carriers of goods. They are not insurers of the persons of the passengers and are only liable for want of due care. {Beadhead v. Midland Bail. Co., L. R. 4 Q. B. 37'.) Ex. Ch.) They are not liable for accidents caused by hidden defects in their carriages which could be guarded against in the process of construction or by sub- sequent observation. {^Bcadlwadw. Midland Bail. Co.,svpra.) But they are liable for defects in their carriages caused by the negligence of their sub-contractors. {Frances v. Cochrell, L. R. 5 Q. B. 184 ; and Ex. Ch. Ibid. 501.) COMMON CARRIERS. 263 (2.) £20, the value of the four hampers undelivered by the Against defendants. ^°'^^°'^ carrier . for non- delivery, If a railway company issues a ticket for a joiimey extending beyond &c. their own line, that is evidence of a contract to carry over the other as L^j^ijiiity of well as their own line, and their liability to the passengers in such cases g.^j^.jg^g qJ is not aflEected if the injury is caused on the line not belonging to them. ' ggjj„erg (Buxton V. North Ua.strni ItaU. Co., L. E. 8 Q. B. 5i9 ; T/iomas v. ^ ' =" * Jlhymney Itall. Co.. L. K. 5 Q. B. 220 ; S. C, Ex. Ch. L. R. 6 Q. B. 2C>6.) However, they are not liable for the wrongful act of third persons over whom they have no control. ( Wright v. Midland IhiU. Co., L. R. 8 Ex. 137.) A carrier may contract himself out of his liability for negligence. (See JMcCaivlcijY. Fitrm-xs liuU. Co., L. R. 8 Q. B. hi ; GalUn v. London and North Western Itail. Co., L. R. lU Q. B. 212.) The isf^uing of a Issuing ticket for a jom-ney from one place to another is evidence of a contract ticket evi- to convey the passenger within a reasonable time on such journey, but Jence of not that the train shall arrive at the time expected. {Ilurst v. Great contract to Western Rail. Co., 34 L. J. U. P. 2(J4.) Railway companies are liable to carry any person who has taken a ticket for a train advertised in their time- within bills to run at a particular time if it does not run {Denton v. Grel. Personal luggage means the class of articles which are ordi- narily or usually carried by passengers as their luggage, (lliidston v. Midland Rail. Co.. L. R. 4 t^ B. 366 ; Macrow v. Great We.itern Rail. Co., supra.) .See decisions on questions whether certain things were personal luggage. {Maerow \. Great Western Rail. Co., snjn-a ; I'he/jjs V. London ,)• North Western Rail. Co., 34 L. J. C. P. 2r)!) ; Mytton v. Midland Rail. Co., 4 H. & N. 615 ; 28 L. J. Ex. 385 ; Becher v. Great Eastern Rail. Co., L. R. 5 (.1 15. 241.) If a railway company which, Vjy the terms of its regulations allows a pas- Where sengcr to take personal luggage, takes as luggage what it knows to be mer- passenger chandise, it cannot claim exemption from liability for the loss of such takes nier- merchandise, on the ground of its not being personal luggage ; but if a pas- chandi.se senger who knows he is only entitled to take personal luggage takes ^s personal merchandise, he is not entitled to recover tor its loss from a railway com- luggage, pany to whom he has given no notice of the contents of the package ; he 2G4- COMMON CARRIERS. Defence to action against common carrier for loss and delay. What damages a passenger may or may not recover from the carrier. Siatcment of iJcfcmc 1. Tlie dc'feudaiits deny that, on the 1st of February, 1875, Messrs. F. & M., of B., delivered to the defeiid.mts ten ham- Contribu- tory negli- gence. Defence in case of lug- gage that passenger took it under his own care. Luggage dejjosited in " cloak' room. takes it at his own risk. {Cahill v. London 4' North Wrxtcrn Hail. Co., •M L. J. C. F. 271 ; Jirlfasf .S' Bally mena Hail. Co. v. A'm/.v. «.) H. L. Cas. h'^{\. ) The fact of a package being marked " Glass " is not sufhcient notice to a company that the contents are merchandise within the meaning of the foreu'oing propositions. (/Z<.) Mrasiire of damaf/c.s.^ — If in consequence of the wrongful delay or erroneous information of a carrier, a passenger is obliged to hire another conveyance or to stop a night on his journey, he can recover his expenses. but he is not entitled to general damages for the derangement or loss of business, trouble, or inconvenience caused to him. {Grrat N'ortlwrn Jlail. Co. V. Han-croft, 21 L. J. Q. B. 178 ; Drnfon v. Great Northern liaU. Co., 2.5 L. J. Q. B. 129 ; Woodger v. (rreat Western Rail. Co., L. K. 2 C. P. 818.) Where a railway company instead of conveying the plaintiff to the station to which she had laooked turned her out on a wet night wlaere she could get no accommodation or conveyance, and in conse- quence she had to walk a distance of four miles to her home, whereby she took a cold and was laid up, and incurred expense in getting cured, and was hindered in her business, she was held entitled to recover damages for the inconvenience suffered in consequence of Ijcing obliged to walk home, but not for the other conseqixences just mentioned, they beint; regarded as too remote. (Ilobhs v. London . The plaintiffs safely carried and delivered the said goods to the defendants. 4. The amounts payable for canying and delivering the said goods according to the plaintiffs' usual charges is £50, and the defendant has not paid the same, or any part thereof. 5. The plaintiffs claim £50. Defence and Counter-claim. 1. The defendants deny that the amount of £50 is due for Defence the carriage and delivery of the said goods according to tlie ''""^ plamtms usual charges, and say that the usual rate at which claim. 272 COMMON CAREIEES. By a carrier agixinst consignee for freight. Defence. Countev- claini. such goods arc carried from Bradford to London by the defendants is 7s. Gd. per bale, and that there is only due in respect of the said carriage and delivery the sum of £ . By way of counter-claim the defendants say : — 1. That the plaintiffs made default in delivering the said goods within a reasonable time, and that the same were not de- livered until after a lapse of four weeks from the time at which they ought to have been delivered. 2, The defendants in consequence of such delay lost the season for the sale of such goods, and they were compelled to sell the same at a reduction in price, in consequence of such loss. ?>. The difference between the price which the defendant would have realized by the sale of the said goods, if they had been delivered at a reasonable time, and the price for w^hich they w^ere actually sold as aforesaid, is £100. 4. After giving credit to the plaintiff for the amount admitted to be due to the plaintiff, there is due to the defendant the sum of £ . The defendant claims £ . Ac f ion hy a Railway Comimny for Carriage of coals mi a Sincial Goniravt. liy carrier 1 . The plaintiffs are, and at all times hereinafter mentioned forcaiTiage ^ygj^-g owners of a certain railway running from W., in the of coals r» T-i 1 • • on a special county of D., to C, in the county of F., and communicating- contract, ^.jth the line of the L. and N. W. Ry. Co. at H., and are and Avere carriers of coals and other goods thereon for hire. The defendants were and are colliery proprietors, carrying on business at or near B. station, on the plaintiffs' said line of railway. 2. The plaintiffs, at various times between the 15th of July, 187C, and the 31st of May, 1877, as such earners as aforesaid carried for the defendants at their request from the defendants' colliery near B. station aforesaid to H., upon and by the plaintiffs' said railway, divers large quantities of coal amounting- on the whole, as appears by the endorsement on the writ herein, to 24,043 tons at the rate of 7d. per ton, pursuant to an agreement made in that behalf by and between the plaintiffs and defendants in the month of June, 187G. COMMON CAERIERS. 273 3. On the 31st of May, 1877, the moneys due from the By carrier defendants to the plaintiffs for the said carriao-e of the said ^or carnage ^ ° 01 coals on coal up to that date amounted in the whole to £701. Accounts a special showing that the said coal had been duly carried by the contract. plaintiffs, and that the said sum was due from the defendants to the plaintiflTs in respect of such cariiage, have been furnished by the plaintiffs to the defendants. 4. The defendants, however, have never paid the sum of £701, or any part thereof. The plaintiffs claim : — Statement of Defence. 1. The defendants admit that between the 1st of July, 1876, Defence. and the 31st of May, 1877, the plaintiffs carried for the de- fendants 24043 tons of coal from the defendants' colliery near B. to H., but the defendants deny that any agreement whatever was made between the plaintiffs and the defendants respecting the carriage of the same, or the rates payable for the carriage thereof. 2. The plaintiffs received the said coal to be carried, and became can'iers thereof, under and by virtue of the powers and provisions of the W. M. & C. Ry. Act, 1862, and became en- titled to receive the rates and charges due under the said Act, for the cari'iage of the same and no more. 3. The maximum amount due to the plaintiffs for the cai'riage •of the said coal is the sum of £338, being at the rate of 3fd per ton. 4. The defendants l)ring into Court the sum of £338, and Payment say that it is enough to satisfy the plaintiffs' claim. 5. Save as herein the defendants deny the allegations con- tained in the plaintiffs' claim. Reply. 1. The plaintiffs join issue on the 1st, 2nd, 3rd and Dtli Reply, paragraphs of tlie defence, save in so far as the allegations of the statement of claim are therein admitted. 2. Refcmng to tlie 4th paragi-aph, the plaintiffs say that the sum paid into Court is not enough to satisfy the plaintiffs' daim. 274 COMMON CARRIERS. Claim by Plamtiff in the altei'native against Lighterman for Damage to Goods during Transit. Against 1. The defendant is a lighterman carrying on business in the man for I'oi'^ ^^ London undcr the style of B. & Co. damage to 2. On or about the 25th day of May, 1876, in consideration during ^^^^^ ^^^ plaintiffs, the L. & St. K. Dock Co., and Messrs. B. Bros. transit. & Co. would deliver to the defendant as and being a lighterman and a carrier of goods in lighters by water for hire certain goods, that is to say, certain coffee in casks, barrels and bags, ex the ship "G.," to be by the defendant safely carried from the V, dock to the L. dock, in the defendant's lighter called the " A.," and there delivered for the said plaintiffs, the act of God and of the Queen's enemies excepted, for reward to the de- fendant in that behalf, the defendant promised the said plain- tiffs to safely carry the said goods fi'om the V. docks to the L. dock, and there deliver the same for the said plaintiffs, as aforesaid. 8. The plaintiffs delivered the said goods to the defendant, and the defendant received the same for the purpose, and on the terms aforesaid. 4. The defendant, although he was not prevented from so doing by the act of God or of the Queen's enemies, did not safely cany the said goods ft-om the V. dock to the L. dock, and there deliver the same to the said plaintiffs as aforesaid, but while the said goods were on board the said lighter, the said lighter leaked and made water, and the said goods were thereliy damaged and depreciated in value, and the said plaintiffs were put to exjjense in and about recovering and diying the said goods and preparing them for sale and selling the same, and by reason of the premises the said plaintiffs have sustained damages to the amount of £800. And by way of alternative claim the plaintiff states as follows : — 5. On or about the 25th day of May, 1876, in consideration that the plaintiffs the L. & St. K. Docks Co. and Messrs. B. Bros. & Co. would deliver to the defendant as and being a lighter- man and a carrier of goods in lighters by water for hire, the said goods to be by the defendant carried fi'om the V. dock to the L. dock in the defendant's lighter called the " A.," and there delivered for the said plaintiffs for reward to the defen- COMMON CAKRIERS. 275 dant, the defendant promised the said plaintiffs that the said Against lighter was tight, staunch, strong, and fit to carry the said lighter- goods from the V. dock to the L. dock aforesaid, and that he damage to would use due care, skill, and diligence in and about carrying goods dur- and delivering the said goods as aforesaid. And the said transit. plaintiffs delivered the said goods to the defendant, and the defendant received the same for the purpose and on the terms aforesaid, and the said goods were put on board the said lighter. 6. The said lighter was not tight, staunch, and strong, or fit to cany the said goods from the V. dock to the L. dock afore- said, and the defendant did not use due care, skill, and dili- gence in and about carrying and delivering the said goods as aforesaid, whereby the said goods were damaged and depre- ciated in value ; and by reason of the premises the said plaintiffs sustained damage as in paragraph 3 mentioned to the amount of £800. The plaintiffs in the alternative claim : — (1) £800 damages. (2) Such further and other relief, &c. Statement of Defence. 1. In answer to paragraph 2 of the statement of claim the Defence. defendant denies that he promised" to carry the said goods upon the terms therein alleged, and says that the sole promise he made was with the plaintiffs, the L. & St. K. Docks Co., and that the said promise was that he would only be liable in case of neglect on his part oi' on that of his servants during the transit of the said goods. Save as aforesaid the defendant denies the allegations contained in the said 2nd paragraph. 2. In answer to paragraph ?> of tlie statement of claim the defendant says that he safely carried the said goods in his said barge into the L. dock, and that the said barge Avith the said goods on board was safely moored in the said L. dock on the 2(;th day of May, 187(;, and that the said barge and the said goods were thenceforward under the control and management of the Dock Company's servants, and that all liability of the defendant then ceased. ?>. IMie defendant says that it was not till after mid-day on the 28th day of May, 187G, that any water got into the said barge or that the said goods were damaged, and the dclendant 276 COMMON CARRIERS. A"ainst says thut his contract with and liability to the plaintiff had Lighter- ceased long before such happened. damage to 4. The defendant further says that the water got into the gooils gaifi barge and the damage was done to the said goods by reason transft. f>f the Said barge being struck from without by some hard sub- stance, and not by any inherent vice or weakness of the said barge, or any neglect on the part of the defendant or his ser- vants ; and save as aforesaid the defendant denies all and every the allegations contained in paragrajih 3 of the statement of claim. 5. In answer to the 4th and ;jth paragraphs of the statement of claim, the defendant denies the delivery of the said goods to him upon the terms alleged, and the defendant says that the said lighter was tight, staunch, and strong, and fit to carry the said goods to and from the said places in the statement of claim mentioned, and that he did use due care and skill in carrying and delivering the said goods. Save as aforesaid, the defen- dant does not admit the allegations contained in the said paragraphs. Action against Carrier hij Sea for Non- Delivery of part of Goods. Against 1- 111 oi" about the month of March, 1877, the plaintiff carrier by caused to be shipped, by Messrs. K. Bros., of A., on board the delivery of defendants' steamer "C," then lying at A., 1800 bundles of rail rods, and the defendants, by their then master of the said vessel, received the same to be carried from the port of A. to the port of London, to be there delivered to the plaintiff, certain perils and casualties only excepted, the plaintiff paying freight and other charges for the same. 2. The vessel sailed on her said voyage, and duly arrived at the said port of London about the end of March last, and the delivery of the said goods was not prevented by any of the said perils or casualties so excepted as aforesaid, and all conditions were performed and all events have happened and times elapsed necessary to entitle the plaintiff to have had the said goods delivered to him at the said port of London, and to maintain this action. 3. Yet the defendants did not deliver the said goods to the plaintiff at the said port of London, but delivered there only COPYRIGHT. 277 147G bundles of the said 1800 bundles of iron rods, whereby a Against certam quantity, to wit 324 bundles of the said 1800 bundles carrier by of iron rods, were and are wholly lost to the plaintiff. The plaintiff claims £60 damages. Conditions Precedent («). Conversion. See Trover. Copyright {b). Action for Infringement of Copyright l)y Selling Copies of Booh- Infringe- Unlawfullg Pri7ited. ' ment of ■J J copyright 1. The plaintiff is a historical writer. The defendant is a j^y sale of . . book un- Ijookseller and publisher, carrying on busuiess ni Paternoster lawfully Row, in the City of London. ' P^'i^^^^- {a) The Common Law Procedure Act, 1852, provided (s. 57) that a plaintiff QT deftmlant might in any action aver the performance of con- ditionsprecedent generally, and that the opposite party should not be at liberty to deny such averments generally, but should specify in his plead- ing the condition or conditions precedent, the performance of which he meant to contest. There appears to be nothing in the Judicature Acts or rules to affect this provision. Certainly such general averments are quite usual in practice, while the portion of it directed against general denials of performance has been in numerous instances strictly acted on. Forms of averments of performance of conditions precedent will be found in the statements of claim on Commission, Charter parties, Insurance, and elsewhere throughout the work. (&) Copyright is regulated by the following statutes : — As to books. Copyright 5 &' G Vict. c. 45, which (sect. 2) includes every volume or part or division in books, of a volume, })amphlet, sheet of letter press, sheet of music, map, chart, or plan jjublislied separately. By sect. 24, registration of the copyright is made a condition pi'ecedent to an action for infringement. (See on this Wood V. Jioosey, I.. K. 2 Q. B. :^40.) It has been held that no copy- right is acquired by mere registration before publication. {Maxivell v. 7/w///, H(; L. J. Ch. 4:^:?, L. K. 2 Ch. Ap. 307.) liy sect. 2:^, a book unlawfully printed or imi)ortcd shall be deemed the property of the projirietor of the copyright, and he may after demand in writing recover the same and damages for the detention in dctinu(>, or ilamages for the conversion in trover. As to infringing the copyright in a dictionary, sec Sincrx v. Broivu, G W. II. 353 ; and in a directory, Kelly V. Morris, L. 11. 1 Eq. G»7 ; in articles published in a periodical, Smith V. Jolinson, 33 L. J. Ch. 137. 278 COPYRIGHT. lufringe- ment of copyright by sale of book uu- lawfully priuted. 2. On the 2nd of April, 1876, the i)laintift' was the proprietor of a subsisting copyriglit in a book entitled . 3. On or about the same date, one A. B. printed for sale several thousand copies of the said book. 4. The said A. B., in printing the said copies, acted without the consent in writing or otherwise of the plaintiif, and con- trary to the statute in that behalf made and provided. 5. The defendant, well knowing the premises, and that the said A, B. acted unlawfully in printing copies of the said book, sold and offered for sale many copies of the same. G. In consequence of the matters hereinbefore stated, the plaintiff's profits in his said copyright have been much diminished. The plaintiff claims : — Copyright in engrav- ings,i)rints, &c. Paintings, drawings, &c. Dramatic and musical works. Alien author. There is no valid copyright in illegal or immoral publications. {Southey V. Slicnvood, 2 Mer. 435, 439.) The copyright in engravings and prints, sculptures, models, copies and casts, and designs for ornamenting articles of manufacture, is regulated by the following statutes :— 8 Geo. 2, c. 18 ; 7 Geo. 8, c. 38 ; 17 Geo. 8, c. 57 ; 5 & 6 Vict. c. 100 ; 6 & 7 Vict. c. (J5 ; 13 & 14 Vict. c. 104 ; 14 & 15 Vict. c. 8 ; 15 & 16 Vict. c. G, and 21 & 22 Vict. c. 70. It has been held that photograph copies come within these statutes. ( Graves v. uishford, L. R. 2 C. P. 410 ; 36 L. J. C. P. 139.) See as to the law relating to copyright inline artworks, viz., paintings, drawings, photographs, 25 & 26 Vict. c. 68. This Act, by sect. 6, imposes certain penaltie's for infringement, or the repeating, copying, colourably imitating, or otherwise multiplying, or knowing that any such repetition, copy or other imitation has been unlawfully made, importing into any part of the United Kingdom, or selling, publishing, letting to hire, exhibiting, or distributing, or offering for sale, hire, exhibition, or distribution, &c. And all repetitions, copies, &c. , are to be forfeited to the proprietor. Dramatic and musical works are protected by 8 & 4Will. 4,c. 65, and5& 6 Vict. c. 45, ss. 20, 21. It has been held that the arranger of the score of an opera and not the composer should be registered as the author of the score, which is an original composition. {WoodY. Boo.sej/, .tiqjrei.) In an action for infringing the right to the exclusive representation of a drama, if it only be proved that part of the drama has been represented by the defendant, it is necessary for the plaiiitifE to show as a matter of fact that the part represented is a material and substantial portion of the drama. {Chatfcvton v. Cave, 44 L. J. 0. P. 886.) A theatrical " situa- tion "' is dramatic property within 8 & 4 Will. 4, c. 65, and the author thereof or his assignee is entitled to be protected against any one repre- senting the same without his consent, {lb. i^er Brett J. This case affirmed on App. 46 L. J. 97.) An alien author resident in the British dominions who first publishes in England, is entitled to copyright throughout the British dominions. {Low V. Itoutlcdyc, L. R. 1 Gh. Ap. 42 ; 83 L. .J. Oh. 717.) But an alien author resident in a foreign country is not entitled to copyright in this country. ( Wood V. Boosey, Hvpra, semhle overruling.) A first publication abroad deprives the author, whether British or foreign, of any copyright save such as he may acquire under the International Copyright Act (7 & 8 Vict. c. 12). {Wood V. Boosey, supra.) See statutes 7 & 8 Vict. c. 12, and 15 k 16 Vict. c. 12 as to international copyright. COVENANT. 279 Covenant. See Landlord and Tenant. Action for Breach of Corenant to }iaij an Annual Sum to a Trustee for a Married Woman. 1. By an indenture dated the , 18G5, the defendant ^^^^^l^^\^ covenanted with the plaintiflF, J. D., that he would yearly and pay an €very year dm-ing the life of the plaintiff, E. G., pay to the ~J^^^;j^ ,said J. D., as trustee for the plaintiff, E. G., the sum of £80, S3- by fom- equal quarterly instahnents, payable on the 1st of ments. Januaiy, the 1st of April, the 1st of July, and the 1st of October in each year. 2. On the 1st of October, 1877, three such quarterly instal- ments were in arrear. 3. All things have been done and performed and all condi- tions and covenants have been falfilled by the said plaintiffs, and each of them which were necessary in order to entitle the plaintiff, J. D., to be paid the said three instahnents and each of them, as such trustee for E. G. aforesaid. 4. The defendant has not paid the said instalments or any or either of them. The plaintiff claims : — Statement of Defence. 1. The said deed was made under tlie circumstances follow- ^^J'j;"J^ ing, that is to say, it was made by the defendant, as trustee deed was iind on behalf of one T. V., in the said deed mentioned, against l^''^^^^^_ whom, and the said E. G., at the time of making the said deed, deration n suit was pendiug, wherein the then and present husband of "^.^^j^^^ the said E. G. sought a decree for a divorce from her on the a suit in" gTOund of her adultery with the said T. V., and the intent and gj^o^ce (»l)ject of the said deed was a corrupt bargain by all the parties tliereto to put an end to the said suit in consideration of the said sum of £80 per annum, as a premium to the said husband f(jr the discontinuing the said suit, and releasing the said T. V. therefrom, and from all the consequences of the adulteiy admitted by liini to have been committed by him with the ijaid E. G. 280 COVENANT. Breach of covenant to pay off a debt by certain iu- stahnents. Action on Covetiant fo Bepay an Advance hy Inslalmcnis and Interest. 1. The plaintiff is a solicitor, carrying on business at . 2. The defendant is a . 3. By a deed bearing date the , 18 — , the defendant covenanted with the plaintiff in the following manner ; that is to say:— \_Here foJtows the covenant under which the defendant ivas on the "l^th September in every year to pay to the plaintiff the sum of £100, on account of a principal sum of £581, until the said sum teas paid off, and also to pay Q per cent, interest on the said sum.'] 4. Of the first instalment of £100 due on the 29th day of September, 1876, the defendant has only paid the sum of £31, leaving a balance of £69 due to the plaintiff. 5. The defendant has failed altogether to pay the second instalment of £100 due on the 29th day of September, 1877. 6. The defendant has also failed to pay the sum of £16 10^. interest on £550 at 6 per cent, per annum, from the 25th March, 1877, to the 29th September, 1877. The plaintiff claims : — (1.) £169 principal. (2.) £16 10s. interest. (3.) And interest on the above simis at the rate of 6 per cent, per annum from the 29th September, 1877. Defence of fraud. Statement of Defence. 1. The plaintiff' wrongftilly induced the defendant to execute the deed named in the statement of claim, and dated 30th De- cember, 1875, by falsely representing and assuring the defendant immediately before the defendant executed the said deed, that the said deed was in strict conformity with the above-mentioned deed of trust (this refers to a deed set out in the original hy ivhich it ivas provided tlmt tlie defendant should not ie liable be- yond the value of property thereby vested in him as trustee), and that the defendant would incur no personal liability to the plaintiff whatsoever. 2. Relying upon such representation and assurance, the defen- dant did not then read the said deed now in statement, nor DEFAMATION. 281 any copy thereof, and tlie defendant has f< ir the first time be- Breach of come acquainted with the true contents of the deed now in covenant to statement since this action was instituted. ciebt°by ^ By way of set-off" and counter-claim certain in- The defendant rejieats and rehes upon all the facts stated in the preceding paragraphs herein, and claims :— (1.) That the said deed, dated 30th December, 1875, so far as it affects and concerns the defendant, may be set aside and cancelled by this Court. (2.) For the pm'pose aforesaid, to have this action transferred to the Chancery Di\'ision of this Com-t. Counter- claim. Defamation («)■ Libel in respect of Matters 2mhUshed in a Kewspaper Article. 1. The plaintiff" was formerly a major in the army, and the Claim for defendant is the printer and itublisher of a newspaper, called the libel in a new.spaptr. (a) Anything ^^Titten or printed and then published which is calcu- lated to injure the reputation of another, or expose him to hatred, con- tempt, or ridicule, is a libel, and actionable as such without proof that the plaintiff has really suffered pecuniary loss or injury of any kind from the act of the defendant. It follows from this that it is not essential that the pleader in drawing a claim for libel should aver that the plain- tiff has sustained actual damage, but it is usual in any case to introduce a general allegation that he has suffered greatly in his credit and repu- tation, and has endured angiiish of mind. &c. ; and where any special damage has really been sustained by the plaintiff on which he relies to aggravate the damages, it should be set out in the claim. Here there is to be found an important distinction between libel and slander. It is rujt law to say that anything spoken which is calcu- lated to injure the reputation of another, or expose him to hatred, contempt, or ri- The defendant meant thereby that the jolaintiff had by newspaper, hig course of conduct as an officer given just cause of complaint to the military authorities for a long time. The plaintiff claims £5000 damages. Instances of absolute privilege. A detiui- tiou of qualified privilege. A denial of the publi- cation. No defa- matory meaniuL^ Accord and satisfac- tion. vileged {Davison v. Diuican. 7 E. i: B. 22!). 2;^3) ; so words spoken by a judge in the course of judicial proceedings (Scott v. Staniijifld, L. E. 3 Exch. 220) ; so the words of counsel in a like case (y^er Kelly, C.B.. in Lems V. IIig(jut, ex rel, cdUoris) ; so the evidence of a witness {Seamen V. NethercUffc, 45 L. J. 798 : 46 L.J. 128) ; so reports made in the course of his duty by a military officer to his superior officer, and evidence given by him at a court-martial. {Dawkins v. Roltehy, Lord, L. R. 8 Q. B. 255, 268 ; 45 L. -J. G8.) In all these cases and a few others, though the matter be ever so defamatory and false, and the motive of the defendant ever so bad, the privilege is absolute and no action lies. The class of cases where a qualified privilege only arises is much more extensive, though the extent of the protection is not the same. A very good, though not an exhaustive, definition of this kind of privilege is given by Lord Campbell in //«;■?•;' «o«. V. Bufih (5 E. & B. 844). "A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contains criminal matter which without this privilege would be slanderous and action- able." Thus it has been held that where any representation is made to a public officer, as the Postmaster-General, to obtain redress, a qualified privilege arises. {Woodward v. Lander, 6 C. & P. 548.) iSo words spoken in confidence and by way of advice, as where a servant's character is given, or where defamatory words are written or spoken ho na fide with a view of investigating a fact in wlrich the party is in- terested. {Jlojjirood v. Thorn, 8 C. B. 293.) So a substantially fair and correct, though not a verbatim report of judicial proceedings, whether published in a newspaper or a pamphlet [Milissich v. Lloyd, 46 L. J. 404) ; and it makes no matter though the hearing is before a Court which does not have jurisdiction {Usill v. Hales, 38 L. T. N. S. 65 ; but a fair report of the proceedings at a meeting of a Board of Guardians where statements reflecting upon the plaintiff were made, is not privileged. {Piireell v. Son-Jer, 46 li. J. 308.) This is nothing like an exhaustive enumeration of the cases where privilege has been held to arise. The subject is a large one and can only be mentioned here. 3rd. A third defence is that the defendant did not publish the alleged libel or slander. This is a fact to be determined by the jury. In addition to what has been already said on the subject of publication, the decision in Parlies v. Prcscott (L. R. 4 Exch. 169), may be mentioned ; there it was held by three judges against two that where a man makes a request to another to publish defamatory matter, of which, for the purpose, he gives him a statement, whether in full or in outline, and the agent pub- lishes the language to some extent as his own, the man making the request^ liable to an action as the publisher. 4th. Another defence is that the words used do not really have the de- famatory meaning imputed to them. See Jllidligan v. Cole, (44 L. J. Q. B. 153), where it was laid down an action will not lie in respect of words published if any ordinary reader would not understand them in a defa- matory sense, and they cannot be made actionable by being alleged to bear a meaning which the evidence does not support. 5th. Another that they do not apply to the plaintiff. ()th. Accord and satisfaction is a good defence if duly pleaded. In Boosnj V. Wood (L. J. 34 Exch. 65), a defence that after the commence- ment of the suit, the plaintiff and defendant agreed together to accept DEFAMATION. 287 Defence. 1. The defendant does not admit the allegations in paragraph Libel in a 1 of the statement of claim. newspaper. 2. As to the residue of the statement of claim, the defendant ® ^'^*^^' denies that he pubhshed the said libels. 3. The defendant wholly denies that the said words in the said residue of the statement of claim were printed of the plaintiff and of his conduct as an officer in the army, with the meanings severally and respectively alleged in paragi'aphs 3 and 5, or with any defamatory meaning. 4. The defendant further says that the alleged libels and Privilege. words were and formed part of an article printed and published by the defendant as a public journalist in the said and which said article was a fair and lona fide coimnent upon a public matter of public and national interest, and was printed and published hona fide and without malice, and for the benefit of the public and not otherwise, and without any malicious intent or motive whatever. Libel in respect of Matter ap2)earm(j in a Neivspctper Report. 1. The plaintiff was at the time of the committing of the Libel in a oTievance hereinafter mentioned, and still is, a physician and "gp^'j^''^^'' surgeon, practising at K., in the county of C, and was and still is also the duly appointed medical of&cer of the K. Work- mutual apologies, to be published by them in their weekly journal in satisfaction of the right of action, and that these apologies were published accordingly, was allowed. 7th. Then of course there is a plea of the Statute of Limitation. In the rpi,gg^jj^^,^g case of libel the statute bars the remedy after the lapse of six years from ^^ Li^ita- the publication of the libel ; but the sale of each copy of a libel being a ^Jq^_ separate publication, proof of the sale of a single copy within six years, rebuts a plea of the statute. (Dukf of BruHsirirh v. Hnnnrr, U Q. B. 18.5.) In the case of slander the statute runs in two years ; but this important distinction must be borne in mind that where the slander is actionable in itself the time runs from the publication of the slander, but where the slander is only actionable because of special damage then this time runs from the happening of the damage. .Hth. Another plea, which, however, only applies in favour of the pub- Defence of Ushers of newspapers or other periodicals, is given by Lord Campbell's an apology Act (the (i & 7 Vict. c. 1)0). It provides that a publisher of a newspaper under Lord or periodical sued for a libel published therein, may plead that the libel CainpbeH's was inserted without actual malice or gross negligence, that a full apology Act. was made at the first opjiortunity, and that a sum of money has been paid into Court as amends. In such a ease if the action proceeds and the jury find the allegations in the defence proved in favour of the defendant, a verdict is entered for him. 288 DEFAMATION. Libel in a lioiisc at K., wliicli saicl workhouse is within the A. union for newspaper ^\^q administration of the hiws for the relief of tlie poor. 2. The defendants were at the time of the committing of the grievance hereinafter mentioned, and still are, the printers and publishers of a daily newspaper called the " M. C," printed and published at M., and having a wide circulation, in particular in L. and C. 3. The defendants, being such printers and publishers as aforesaid, on the 30th of December, 1875, printed and pub- lished of and concerning the plaintiff and of and concerning him in his said profession of physician and sm'geon, and of and concerning him in his said office of medical officer aforesaid, the words following, that is to say : — \_H'ere follow the words of the alleged libel set out in detail ivith appropriate innuendos, at the end of which the claim continues'] meaning thereby and imputing to the plaintiff' that he had been and was guilty of gross mis- conduct in his profession of physician and surgeon as aforesaid, and had acted in his said profession and his said office negli- gently, improperly, and with great cruelty. 4. In consequence of the premises, the plaintiff has been and is greatly prejudiced and injured in his credit and reputation, and in his profession of physician and surgeon as aforesaid, and in his office of medical officer as aforesaid. The plaintiff claims : — Statement of Defence. 1. The defendants admit that the words set forth in para- graph 3 in the plaintiff"s statement of claim were printed and published by them, but they deny the other allegations in that paragraph contained. 2. The defendants are public jom-nalists, and the said words were printed and published by them as such public journalists, in a public journal hond fide and without malice, and for the public benefit and not otherwise, and were and are a correct, fair, impartial, and honest report and account of proceedings of public interest and concern. 3. The defendants deny each and every the allegations con- tained in the 4th paragraph of the statement of claim. DEFAMATION. 289 Alterjiative Claim against two Defendants for Lihel. 1. The plaintiff is a clergyman of the Chui-ch of England. Alternative 2. The defendants, or one or other of them, are or is the ^*/*f'^«'"t ' of claim proprietors or proprietor, printers or printer, and publishers or for libel pubhsher of " ■■ Gazette." ^g^'°^* *^° ■^ defendants. 3. On the 13th of July, 1875, the defendants, or one or other of them, falsely and maliciously printed and published of the plaintiff in relation to his profession, the words following, that is to say — \_Here follow the alleged libellous tvords^ — meaning thereby that the plaintiff was slothful and careless in the discharge of his clerical duties, and was unfit to be a clergyman of the Church of England. The plaintiff claims : — Statement of Defence of the Defendant M. G. 1 . The defendant M. Gr. says that he is not the proprietor, Defence of printer, and publisher of " Gazette," nor has he any con- aant''^^^"^' nection in any capacity with the said " — — Gazette." Denials 2. He denies that he falsely or maliciously or at all jirinted and published the words set forth in the 3rd paragraph of the statement of claim. Statement of Defence of the Defendant G. G. 1. The defendant C. G. admits that lie is the printer and Defence publisher of the " Gazette." °/ f'T^ ^ defendant 2. The defendant C. G. further says that the alleged libel under Lord complained of by the plaintiff in his statemeiit of claim was ^'^"^i^ell's contained in a public newspaper called " Gazette," and apologyand was inserted in such newspaper without actual malice or jn-oss i''Y'"f"t ^ ^ ° into Court negligence. 3. The defendant C. G. i'urther says that at the eai'licst opportmiity after the commencement of this action, he inserted in such newspaper a fuU apology for the said libel. 4. The defendant C. G. brings into Court the sum of £10 by way of amends for the injury sustained by the plaintiff by the publication of the said libel, and says that the said smn is enough to satisfy the claim of the plaintiff in respect thereof. u '290 DEFAMATION. Action for Publislumj a Libellous Letter. Stetemcnt 1. Tho plaiiitiif carries on business as a merchant at of claim for gtrcct, in the city of London ; and the defendant is the general libelloirs' manager of the L. & 6. Bank. letter. 2. Prior to the 31st of May, 1877, the plaintiff had had con- siderable business transactions with one J. Bt., also a merchant, fi-om which he had derived large profits, and several such trans- actions were then in progress between the plaintiff and the said J. H., and the said J. H. would have continued to have such transactions with the plaintiff but for the publication herein- after referred to, and the said J. H. had offered the plaintiff' to take him into his employment as manager, upon terms which would have given the plaintiff a salary of from £3000 tO' £4000 per annum for his services. 3. On the 31st of May, 1877, the said J. H. called upon the defendant, and the defendant then falsely and mahciously published to the said J. H. the following letter of and con- cerning the plaintiff. [Here follows the allefjed libellous matter.'] 4. Owing to the conduct of the defendant set forth in the preceding paragraph, the said J. H. refused to have any further" transactions with the plaintiff, and the plaintiff lost the profits he would otherwise have made thereby, and the said J. H. alsO' refused to take the plaintiff into his employment, as he would otherwise have done, and the plaintiff has lost the benefit of such employment and the emoluments thereof, and has been, much injured in his credit, reputation, and business, and has been otherwise damnified. The plaintiff claims £2000 damages. Statement of Defence. Defences— 1, The defendant does not admit that he published the said' justifica- i^jttei- Qy finv part of the same, or that he iniblished the same tion and •' '^ ' ^ jmvilege. falsely and maliciously as alleged, or at all. 2. The statements contained in the said letter are true in substance and in fact, according to the fair and ordinary meaning of the words used in the said letter. 3. The publication of the said letter to J. H., if made, was privileged, and was made bond file and without malice. J. H^ DEFAMATION. 291 liavino- an interest in certain business transactions in which the statement plaiutiif and the defendant's banlc were concerned, made in- of defence, quiries of the defendant as to the plaintiff, and it was in answer to such inquiries that the pubHcation, if any, of the said letter took place. 4. The defendant does not admit the ord and 4th para- gi-aphs of the statement of claim. Action for Slander and Libel, the former in the French Language. 1. The plaintiff is a teacher of music, residing at , and Statement , . -, . ■■ , f. ■ -T , of claim for the detendant is also a teacher of music residing at . slander in a 2. Oh the 1st of May, 1876, the defendant falsely and foreign maliciously spoke and published of the plaintiff, in the French a^f iS. language, the words following, that is to say — \_Here follow the alleged defamatory words set out verbatim in French] — which said words as translated into the English language bear, and were understood by the persons to whom they w^ere published to bear the meaning following, that is to say — [Here follows a translatimi of the words in English']. 3. The defendant meant thereby and imputed that the plain- tiff at the time of the speaking of the said words was and had for a long time been suffering ft-om a contagious disease, render- ing him unfit to mix in society. 4. On the 5th of May, 187(5, the defendant falsely and maliciously wrote and piil)lished in a letter addressed to one J. F., of and concerning the plaintiff, the words following, that is to say — [here set out the words in full ivhich tvere in English'] — meaning thereby that the plaintiff was a man of dissolute habits and profligate life, and not fit for an appointment as music master in an academy for young ladies. The plaintiff claims : — (1.) £500 damages for the slander set out in the 2ud para- graph. (2.) £500 damages for the libel set out in the 4th paragraph. Action for Slander of a Man in tlui ivay of his Trade. 1. The plaintiff at the time of the grievance hereinafter Statement mentioned was and still is a manufacturer of brushes and giau jgr of brooms, carrying on his business at . plaintiff in u 2 his trade. 292 DEFAMATION. Statement 2. On or about the of , 1877, the defendant falsely of claim for ^-j^^ maliciously spoke and published of the plaintiff in rela- piaiutitr iu tion to his said trade and business as such a trader as albre- his trade, g^jfj^ ^he words following, that is to say : " You have got a commission to buy for that fellow H. (meaning thereby the plaintiff), who always lets his cheques go back. He (meaning the plaintiff) can pay for nothing. In fact, he (meaning the plaintiff) never pays anybody. He (meaning the plaintiff) is sued in all directions, and has had the bailiffs in his warehouse. Indeed, he (meaning the plaintiff) never pays anybody until he (meaning the plaintiff) is so compelled, and his business will soon be shut up." The defendant thereby meaning that the plaintiff as such trader had been guilty of fraudulent and dishonest practices ; and that he was insolvent and unable to pay his just debts. 3. The said words were spoken and published in the hearing of Messrs. G-. & Co., merchants, of L., and Mr. W., broker, of L. ; and by reason of the speaking and publishing of the said words in their hearing the said Messrs. Gr. and Mr. W. refused to sell goods to the plaintiff on credit as they otherwise would have done, and to have any dealings or transactions with the plaintiff in the way of his trade and business, and the plaintiff thereby incurred great damage and injury to his credit and otherwise. The plaintiff claims : — Action for Slander of Plaintiff's Wife. — See Husband and Wife, pp. 345— 350,i;osf. Action against Husland for a Lilel hy his Wife — See Husband and Wife, p. 355, ^ws/. Action for Slander of Title (a). 1. The plaintiffs were at the time hereinafter mentioned and still are vocalists, and had l)een and were engaged to sing at the Statement of claim for slander to title. Essentials of an action for slfinder of title. (a) In the case of an action for slander of title the plaintiff must show that the words complained of were written or spoken (it does not matterwhich)(J/(/^«c/i!7/ V. Soper, 3 N. C. 371) maliciously, that they were false, and that actual damage has ensued to something which is the plaintiff's property. (See Wren v. Wihl, L. R. 4 Q. B. 730, 737 ; JIart V. Wall. 46 L. J. 227.) As to publishing without justification an untrue statement disparaging a man's goods, and thereby causing him special damage, see West Counties Mamire Co. v. Lanes Chemical Manure Co., L. R. 9 Ex. 218. DEFAMATION. 293 S. Music Hall, K., and also at the L. P. Music Hall, for reward, statement payable to the plaintiffs for theii' serrices, and they appeared °j^^^Jj^™^^°'' and sang in public under the name of the Sisters H . title. 2. On the 15th day of , 1875, the defendant falsely and maliciously wrote and published of the plaintiffs, in the form of a letter addi-essed to E. W., Esq., the proprietor of the S. Music Hall, and of them as such vocalists, and of their engagement at the S. Music Hah, the words following, that is to say :— " January 15th, 1875.— E. W., Esq. My deal- Sir, — Although I know it is quite unintentional on the part of the lady advertisers (meaning the plaintiffs), the advertisement attached at foot, if relied upon in every particular by pro- prietors engaging them, is calculated to lead such proprietors to inciu- the penalties under the Copyi'ight Act in certain cases, as I hold the power of attorney over the performing rights of certain musical publications belonging to two houses therein named, who only have the copyrights vested in them, and a separate and distinct property never held by them. If all proprietors knew this it would be best ; but I have not time to apprise them. I remain yours truly, H. W. ; " meaning that the plaintiffs had no right to sing certain songs which they advertised themselves as about to sing at the said music haU. 3. In consequence thereof, and by the publication of the said words, E. W. dismissed the plaintiffs from his service and ter- minated the said engagement at the S. Music HaU. 4. On the 19th day of Januaiy, 1875, the defendant falsely and maliciously Ay-otc and published of the plaintiffs, in the form of a letter addressed to E. L., Esq., the proprietor of the L. P. ]\Iusic Hall, and of tliem as such vocalists and their engagement at tlie said music hall, the words following, that is to say : — [Here foUoived the letter, ivhich icas somewhat to the same effect as the tetter set out in parar/raph 2.] 5. In consequence of the puljlication of these words, E. L. dismissed tlie plaintiffs from his service, and dispensed with their services, and refused to employ them to sing at the said music hall ; and the plaintiffs were and are by means of the premises otherwise injured. The plaintiffs claim £100 damages. 294 DEMURRER. Defence of privilege. Sfnfemenf of Dofence. 1. The defendant denies the wliole of the allegations con- tained in the 1st i)araoTaph of the statement of claim. 2. The defendant denies the allegations contained in the 2nd, 3rd, 4th, and r)th paragTaphs of the said statement of claim. 3. The defendant further denies that the alleged lil)cls, and each of them, as disclosed in paragraphs 2 and 4 respectively, were 1;^Titten and published as therein alleged or at all. 4. The defendant further says that the alleged libels, and each of them, were communications made by the defendant to E. W., Esq., and E. L. in a ,matter in Avhich he and the said E. W., Esq., and E. L., Esq., had a common interest and con- cern, and as such were AM-itten by the defendant under the protection of privilege. 5. The defendant fiu'ther says that the alleged libels, and each of them, were and was true in substance and in fact. Demur- rase. Demurrage. See Charter-party. Demurrer. Demtirrer («). For form of demurrer to a statement of claim, see p. 495. When a (a) A party may deliver a demurrer to all the pleading of the opposite demurrer party, or to some part of it merely. (_Order XXVIII. r. 1 .) And if a can be paragraph in a pleading set up a distinct cause of action, ground of de- delivered, fence, set-off, counter-claim, or reply, the proper course for the party objecting thereto is to demur, and not to aitj)ly at Chamliers to strike out the "paragraph. ( Watwri v. JItin-ki nx, 24 W. R. 884.) The demurrer must state sj)ecilically whether it is to the whole or a part, and if so, to what part of the pleading of the opposite party. (Order XXVIII. r. 2.) The demuri-er must state some ground in law for the demurrer, but ou the argument the party demurring shall not be confined to the ground so Pleadinc stated (r. 2). A party can demur to one part of a pleading, and plead to and de° another part of the same pleading as of right (r. 4) ; but he can only inun-ing demur and plead to the same part of a pleading by leave of the together. ^'"^"'^ (i'- 5)- DEMTJREEE. 295 For form of demurrer to a statement of defence, see pp. 122 — Demurrer. 123. For form of demurrer to a reply, see p. 599. X\ " If a demurrer be delivered without stating in the margin of it some ■substantial matter of law, or with a fiivolous statement, the demurrer may be set aside by the Court or a judge, aud leave may be given to sign judgment as for want of a i)lea ; but a demurrer will not lie set aside as ft-ivolous unless it is palpably so." (Chitty's Pleading, 12th edit. 926.) Such was the old law. which seems to be preserved by the latter part of rule 2 of Order XXVIII. " If there is no ground, or only a frivolous ^ound of demurrer stated, the Court or judge may set aside such de- murrer with costs." A demurrer having been delivered, and no application to strike it out having been made, or if made the application having been dismissed, the party whose pleading is denuirred to. can either apply to have his plead- ing amended, whicl^the Court or a judge may grant upon payment of the costs of the demuiTer {Ovdev XXVIII. r. 7) : or failing this, he must see that the demurrer is entered for argument, either by himself or the party demun-ing, within ten days. Rule 6 says, " Where a demurrer, «ither to the whole or part of a pleading, is delivered, either party rnay enter the demurrer for argument immediately, and the party so entering such demurrer shall on the same day give notice thereof to the other party. If the demurrer shall not be entered, and notice thereof given within ten days after delivery, and if the party whose pleading is de- murred to does not within such time serve an order for leave to amend, the demuiTer shall be held sufficient for the same purposes and with the .same result as to costs as if it had been allowed in argument." The next thing is to settle the points for argument, and make up and ■deliver the dcnnin-er book. The points for argument are really a de- velopment of the ground or grounds for the demurrer stated in the ^lemurrer itself. There the party demurring need only state one objec- tion to the pleading ; but in drawing up his points for argument, the l)leader must statespecifically in a brief and compendious way, all the objections to the pleading on which he wishes to rely. It has been iitled that a party will not be allowed to argue an objection which is not stated in his points ; but the judges are not now very strict in this respect, and it would seem that the Court will adjudicate upon a substantial point which suggests itself to the judges, though such point is not stated. {Arbouiiiv. Anderxnn, 1 Q. B. 498.) It is obligatory on the party de- murring to deliver a copy of his points to the Court ; and by courtesy they are generally delivered between the contending parties before the jxrgument. but this is not essential. The demurrer book is made up by the solicitor on either side on plain paper, and it contains a copy of all the jileatlings in the action, and by r. IG, H. T. ^H')'^, copies of the demurrer books have to be delivered by the i)laintifE. or on his default by the defendant, four clear days before the day appointed for the argument to the judges of the Division of the High Court in which the action is pending. And if all the demurrer books are not delivered to the judges by one party or the other, the case will be stnu'k out of the ])aper. {Ahn/IuiM v. Coolie, li Dowl. 21o.) It sometimes happens that there are issues of fact and issues of law with respect to which a demurrer is pending, to be tried in the same action. In that case it is ojjtional with the plaintiff which he will have tried first, subject to the discretion of the Court. The Court will gene- rally direct that the demurrer shall be argued first, when the cause may wholly l)e decided thereby, and the trial become unnecessary ; but the Court will not, except in a strong case, interfere with the option of the Frivolous demuiTer. Entering demurrer for argu- ment. Effect of failing to do so. The " points " for argu- ment. The de^ murrer book. Where there are other issues than those covered by the de- murrer to he tried. 296 DETINUE. Statement of claim for detinue of deed. Detinue ('0- Action against Solicitor and others for Detention of Deed. 1. The plaintiff" is an export oilman, residing at . 2. The defendant H. C. is a solicitor, carrying on business- at , in the city of London. Effect of the de- murrer being allowed or disallowed. When au action for detinue lies. Distinction between detinue and trover. plaintiff where there is a distinct issiie in fact not affected by the issues in law. [Iloherfs v. Tayler, 13 L. J. C. 1*. LSS ; 7 M. & Gr. 659.) On the demurrer coming on for argument — it may be before one judge or possibly two — only one counsel on each side will be heard. If the demurrer is to the whole pleading, and is allowed, and no leave to amend is given, the action is at an end, determined in favour of the party de- murring, and he is entitled to his costs unless otherwise ordered iy the Court or n, judge. If the demurrer is only to part, that part of the pleading is finally decided in favour of the demurring party, and the action proceeds with respect to the residue. Where the demurrer is overruled, the question arises what is the position of the party de- murring. If he has obtained leave to combine a pleading with his demurrer, or if under rule 5 of Order XXVIII., before demurring, lie obtained an order reserving to him leave to plead in case the demurrer was overruled, then the only consecjuence that will ensue will be that under rule 11 he will have to pay to the opposite party the costs occa- sioned by the demurrer, unless the Court otherwise directs. But where- no leave was obtained to plead and demur together, or to plead after the demurrer is overruled, in the latter event the party can still apply for leave to plead over. By r. 12, "Where a demurrer is overruled, the Court may make such order, and upon such terms as to the Court shall seem right, for allowing the demurring party to raise by pleading any case he may be desirous to set up in opposition to the matter demurred to. "' It is discretionary with the Court whether it will grant this leave, and where it refuses to do so, the position of the party who has unsuccessfully demurred will be this, that he has made a default in pleading, and the same consequences as to signing final or interlocutory judgment will follow. [a) This action is for the specific recovery of goods, deeds, or writings detained from the defendant by the plaintiff (1 Chit. PL 121), and it lies for the wrongful detention whether the taking was in the first instance lawful or not. (Ibid.) It is sufticient to maintain this action if the plaintiff was entitled to the possession of the goods. {Gledstane v. Hewitt ^ 1 C. & .1. .56.5 ; Nen-ton v. Beck, 27 L. J. Ex. 272 ; Olliver v. Olliver, 31 L. J. C. P. 4.) Possession, either actual or constructive, is however essential to the maintenance of the action. Thus a creditor of a person who compounded with his creditors cannot sue a trustee of the composi- tion deed in whose hands the debtor placed bills for the amount of the promised composition for not delivering them to such creditor, the notes never having been in the latter's possession, either actually or con- structively. {Latter v. White, L. K. 5 H. L. 578.) The distinction between this action and trover is that the latter action only lies for dcimuges for a conversion, and the goods themselves cannot (in theory) be recovered, though the effect of this distinction is really inappreciable in practice, as juries are usually directed hy consent to give a verdict for damages greater than the value, with the condition that it be reduced to 40*. if the goods are restored. In detinue the plaintiff claims to have the specific goods restored as well as damages for their DETINUE. 297 3. The defendants ^Y. B., E. B., and ^\. H. M., trading statement as B. Bros. & Co., carry on business at , in the city of °^ *^J^'^™ ^° " detinue of London. deeds. 4. The plamtiff is the owner, and entitled to the custody and possession of a certain indenture, dated , 187G, and made between D. A. D., of the first part, N. E. C. and Mary A., his wife, of the second part, and the plaintiff of the thii'd part, whereby certain furniture and effects were assigned to the plaintiff, his executors, administrators, and assigns upon the trusts therein set forth. 5. The said indenture is in the possession, custody, and control of the defendants, or of some or one of them, and the defendants unlawfully detain, or some or one of them unlaw- fully detains, fi-om the plaintiff the said indenture. detention, and the judgment is that the plaintiff recovers the goods if they can be obtained from the defendant by the sheriff, and a certain sum fixed by the jury for their detention ; and if the goods cannot be had, then a certain sum assessed by the jury as their value, besides damages for detention, with costs. Where several chattels are claimed in detinue the value of each should be assessed separately, as the defend- ant may return some of them but not others. (I'hiUip.s v. Jonctt, VJ L. J. Q. B. 374.) It is not unusual in practice to apply for an order under the summary jurisdiction of the Court in the case both of detinue and trover that, upon the delivery up of the goods and payment of nominal damages and costs, the action be stayed by writ, and that in case the plaintiff should elect to proceed for greater damages or other goods, and should fail, he should pay costs subsequently incurred. (2 Chit. Free. 11th ed. 1367.) If all or any of the goods are delivered up to the plaintiff after action brought, the plaintiff cannot have judgment as regards the goods so delivered ; but he may have judgment for damages for their detention if damnge has been sustained, and recover the residue of the goods, or their value, besides damages for theii- detention. (CrussfitUl v. Such, 22 L. J. Ex. 65.) By 17 & 18 Vict. c. 125 (Common Law Procedure Act, 1854), s. 78, " The Court or a judge shall have power, if they or he see fit so to do. upon the application of the plaintiff in any action for the detention of any chattels, to order that execution shall issue for the return of the chattel detained, without giving the defendant the option of retaining buch chattel, upon paying the value assessed ; and that if the said chattel cannot be found, and unless the Court or a judge should otherwise order, the sheriff shall distrain the defendant by all his lands and chattels in the said sheriff's bailiwick till the defendant render such chattel ; or, at the option of the plaintiff, that he cause to be made of tlie defendant's goods the assessed value of such chattel : Provided that the plaintiff shall, either by the same or a separate writ of execution, be entitled to have made of the defendant's goods the damages, costs, and interest in such action," 'l"he option given by this section does not apply where at the trial the value has not been assessed. {Chilton v. Carrin/jton, 24 L. J. C. P. 78.) Summary power of Court iu actions of. Provision of C. L. P. Act, 1854, as to re- peated diij- tresses. 298 DETINUE. Statement ■of claim for ■detinue of picture. ■Statement of claim against constable for detinue of jewellery taken from acquitted prisoner. The plaintilF claims : — (1.) A return of the said indentnre and £50 damages for its detention. (2.) In default of such return £'700 damages. (3.) Such further and other relief, &c. Action for ih'iaining a Picture. 1 . The plaintiffs are the owners and entitled to the possession of a certain picture or oil-painting entitled, " Lady Russell interceding for the Life of her Husband." 2. The defendant unlawfully detains the said picture from the plaintiffs, whereby the plaintiffs have been deprived of the said picture. The plaintiffs claim : — (1.) The return of the said picture and £20 damages for its detention. (2.) In default of such return £100. (3.) Such fiu'ther, &c. Action of Detinue against a Conslahle for detaining Property of a Per.wn acquitted of a Criminal Charge. 1. The plaintiff, in the month of October, 18 — , was in possession as his own property of a diamond pin, which he was wearing, and a diamond ring. 2. One C. B., a detective officer, on seeing the plaintiff wear- ing the diamond pin, charged him with stealing it and the diamond ring, took him into custody on the charge, and took the pin and ring from him. 3. The plaintiff was taken before a metropolitan police magistrate, who, after repeated remands, committed the plaintiff for trial on the said charge. 4. The plaintiff' was subsequently indicted and tried on the said charge, and was acquitted. 5. The said C. B. delivered the said pin and ring to the defendant as his superior officer. 6. The defendant detains ft'om the plaintiff' the use and possession of the said goods of the plaintiff's. The plaintiff' claims a return of the said goods or their value, and £20 for their detention. DETINUE. 299 Detinue and Trover for Goods left in House hy outgoimj Tenant against ]jresent Occujmr. 1. The plaintiff", on or about the 10th April, 1877, on statement quitting possession of a farm and premises situate at R., in the of claim for parish of H,, in the county of S., which he held as tenant goodsTef°t thereof, left in the defendant's charge and possession on the i" lio'^se by •said premises some pictures, i)rints, drawings, photographs, tenant?^ picture-frames, and other goods of the plaintiff', of which tlie following is a list : — \^Lisf of (joods.'] 2. The value of the said several goods is £ . 3. The defendant, though requested so to do, has refused and ■still refuses to deliver up the said goods to the plaintiff, and wrongfully detains the same from him. The plaintiff" clauus : — (1.) The return of the said goods, or £ , their value. (2.) £ damages for their detention. (3.) In the alternative £ for their conversion. Statement of Defence and Counter-claim. 1. As to paragraphs 1 and 2 of the statement of claim, the Defence, defendant does not admit that the "said list is an accurate list of the goods which the jilaintiff" alleges were left by him in the charge and possession of the defendant ; and he does not admit that the value of the said goods is £ . 2. As to paragraph 3 the defendant denies that he was ever a-equested to deliver up tlie said goods by the plaintiff", or that lie refused or still refuses to deliver up the same, or that he wrongfully detains the same from the plaintiff". By way of counter-claim : — 1. The defendant says that on or about Lady-day, 187(5, negotiations were entered into between him and the plaintiff" with reference to the defendant ha\'ing the assignment of a lease of wliich the term of years was then unexjiired, and which the plaintiff" tlien held of a farm and ])remiRos situate at Countcr- Pt., in the county of S., and it was finally agreed that in con- f^lf.Jl."^"" fiidcration of tlie defendant entering into jxtssession of the said farm and ])remiseK, and taking tlie assignment of the i>laintifl".s said lease, the jihiintitr would guarantee, and he did accordingly jHiaranty, 300 DISTEESS. c:narantcc, that tlie rates and tithes payable by the defendant as and being the tenant of the said farm and premises, should not exceed the sum of £60 per annum, and the defendant says tliat it Avas solely due and owing to the plaintiff's said guarantee that he entered on the said farm and premises as such tenant as aforesaid, and accepted the assignment of the plaintiff's said term therein, as in fact he did. 2. Yet, in truth and in foct, the rates and the tithes payable by the defendant as and being the tenant of the said farm and premises, greatly exceeded the amount of £60 per annum, inasmuch as the defendant has been compelled to pay the sums of £ , and £ , together amounting to £ , for such rates and tithes. 3. The defendant claims £ , the difference between £60 and £ . 4. In the alternative, the defendant will seek to recoyer the said sum of £ as money paid by the defendant to the use of the plaintiff at liis request. Dilapida- tion. Dilapidations. Sec Landlord and Tenant. Statement of claim for illegal and irregular distress. The nature of tlie remedy by distress. Distress («). Action for Illegal and Irregular Distress. 1. The plaintiff is a nurseryman ; the defendant D. is a builder ; and the defendant F. is an auctioneer, and in the («) Distress is one of the few cases where a man is allowed to right himself without calling in the aid of the law, and this somewhat anoma- lous right is conferred upon two classes of persons. An occupier of land has a right to distrain anything that he may find trespassing upon his land, and actually doing some damage, being damage feasant as it is called ; and a landlord has a right to distrain on all goods and chattels (with certain exceptions) to be found on the demised premises for arrears of rent ; and in both these cases the owner of the goods distrained can only get his goods back in one of two ways, either by paying the rent due or making amends for the trespass as the case may be, or by entering into a replevin bond conditioned to prosecute an action within a limited time, raising the question of the legality of the distress. In entering into a replevin bond the party gives secui'ity both for the amount of damage done or rent due, and also for the estimated cost of the action. In executing a distress great care is necessary to avoid any illegal act or irregularity. The distress can only be made between sunrise and sun- set (it is otherwise in the case of distress damage feasant). It cannot DISTRESS. 301 transactions hereinafter mentioned, acted as the agent and baihflF of the defendant D. be made till the rent is actually in arrear, and as that is not till tlie end of the day on which it is due, in practice a distress cannot be made till the day succeeding the day it is payable ; and this rule, coupled with another, that the distress must be made during the continuance of the term, led to the result in the case of the last instalment of rent due on the determination of a term, that it could not be distrained for at all. But this injustice has been remedied by statute (the 8 Anne, c. 14), which provides that a landlord may distrain within six calendar months after the determination of the tenancy, provided (1) the tenant remain in pos- session, and (2) the landlord's reversion continues. Again a distress as a rule can only be made on the demised premises. It will be illegal if made anywhere else except in the following cases : (I) The Crown may distrain anywhere ; (2) if the landlord coming to distrain see the cattle on the land and the tenant before his face drives them off the land to avoid a distress, the landlord may follow and dis- train ; (.^) by statute 11 Geo. 2, c. 19, a landlord is authorized within thirty days to follow goods that have been fraudulently removed to avoid a distress ; and (4) by 11 Geo. 2, c. VJ, a landlord may take and seize any of the tenant's cattle depasturing upon any common appendant or appm-- tenant to the demised premises. In making a distress, if the landlord or his agent force an entrance, or break an outer door, or in fact enter except in the usual manner adopted by persons having access to the build- ing, the distress is illegal. The distress is also illegal if goods or chattels are seized whicli are exempt from distress. The general rule is that all persjnal chattels found on the demised premises at the time of the distress, whether the property of a tenant or a stranger, may Ije taken, but this rule is subject to the following exceptions : 1. Things annexed to the freehold, as fixtures. 2. Things delivered to a person exercising a public trade, to be carried, %vrought, worked up. or managed in the way of his trade, as materials sent to be made into cloth, cloth sent to a tailor to be made into a coat, corn sent to a miller to be ground, &c. 3. Things in actual use, as the tools a man is using, the watch he is wearing, the horse he is riding. 4. Animals fera3 naturas. 5. Goods in the custody of the law. 6. By the .34 & 3."j Vict. c. 79, the goods of lodgers are protected from distress by the superior landlord. 7. Beasts that gain the land and sheep. 8. Instruments of husbandry. 9. The instruments of a man's profession or calling. 10. Growing crops. The four last classes of chattels are only conditionally privileged from distress ; they may not be taken if any other distrainable chattels can be found ; but'in the last resort they are liable. Where a distress is illegal either owing to the time, manner, or place of making it, or from the nature of the goods taken, the party distrained on has an action against the distrainer for damages ; the same liability arises where a distress is made ])y a landlord no rent being due, or after a tender of the rent, or after a former distress. In all these cases the distress is more than irregular, it is illrf/nl, and the distrainer is a trespasser af/ initio. He may sue the distrainer in trespass or trover ; and an averment of special damage will not be necessary to support his jiction. It has been decided that in such a case the measure of damages is the value of the goods seized, and no deduction can l)e allowed for any rent actually due (Attack v. Jlramtn-ll, L. J. 32 Q. B. 140) ; but under the jjresent system no doubt a landlord sued for illegal distress could, by means of a counterclaim, set off any rent due to him. It has been pointed out what constitutes illcijality in connection with a distress, and what the consequences of illegality are; an irrcgulnr dis- tress is very different, and the consequences are different. An irregu- Statement of claim for illegal and irregular distress. When to he levied. Where dis- tress must he levied. Things absolutely and con- ditionally privileged from dis- tress. Distinction ])etween illegal and irregular distress. 302 DISTEESS. Statement of claim for illegixl aud irregular distress. Breaking open outer dooi-. Seizing fix- tures, &c. '2. On or about the IDtli June, 187?), the defendant D. let to tlie phiintitf a house and premises, No. — , Street, L., in the county of , for the term of five years, at a rent of £30 per annum ; and the plaintiff entered into possession of the same. 3. On the 24th of June, 1875, the defendant D. signed and gave to the defendant F. a warrant authorising and directing him to distrain the plaintiff's goods and chattels in his said house and premises for the sum of £15 therein falsely alleged to be due to the defendant D. as arrears of rent due at . 4. At the timo the said ^varrant was delivered to the defendant F. by the defendant D., and at the time the de- fendant F. broke and entered the house and premises of the plaintiff, and made a distress therein as hereinafter stated, no rent was due by the plaintiff to the defendant D. 5. Upon receiving the said warrant of distress, the defendant F., accompanied by a broker, proceeded to the plaintiff's house, and forcibly entered the same by breaking open the outer door thereof and wrongfully distrained therein divers goods and chattels of the plaintiff", including certain green-house pit-lights,, pit-frames, and other fixtures, which said fixtures were affixed to the soil, and were greatly injured and depreciated in value- by being removed. The defendant F. also seized trees, shrubs,. Effect of iri'egular distress on the rights of the parties. Excessive distress : question of excess is for jury. larity arises in a case where rent is really due, and a distress has been legally made in respect to the time, manner, "place, and subject of the distress, but aftcrnards the landlord or his agent has been guilty of some irregularity— departed from the strict letter of the law— in dealing with the distress, as where any irregularity is committed with regard to the appraisement and sale of the distress, or where the landlord re- mains an unreasonable time on the demised premises after the five days from the distress, at the end of which time the distress may be sold. Any irregularity of this and a similar kind does not render the dis- trainer a trespasser ah initio. See the 11 Geo. 2, c. 1!>, s. 19, altering the common law. The party aggrieved by such unlawful act or irregularity- has, however, au action for any special damage which he may have suffered by reason of it. The distress remains good, but the party ag- grieved obtains an action, the basis of which is special damage. Another action given to a person where goods have been distrained is- an action for excessive distress, that is to say for taking a greater quantity of goods than is necessary to satisfy the distress and costs. " When a landlord is about to make a distress he is not bound to calculate very nicely the value of the property seized, but he must take care that some proportion is kept between that and the sum for which he is entitled to- take it." It is a question for the jiuy whether the distress is excessive or not, and they may find that it is excessive, though the net proceeds of the sale did not actually amount to the rent due. {Smith v. Ash/orth,. L. J. 2y Ex. 259.) DISTRESS. :30S flowers and jDlauts gTowiiio' in the plaintiff's nursery-garden, and statement the tools used by the plaintiif in his trade, although the other "/jj;^ j^\^J' goods distrained were sufficient to satisfy the sum distrained for. ine°gui:ii' G. On the same day the defendant F. gave the plaintiff distress. notice of the said distress, but such notice only specified a part of the said fixtiu-es and goods as having been distrained, and was not a correct notice. 7. The defendant D. and his agent the defendant F. wi'ong- Selling fully sold the said fixtures and goods so distrained within three p-i°[fon'of days from the date of the said notice, viz., on the 28th day of notice. June, 1875, contrary to the statute in that case made and provided. 8. The defendant D. and his agent the defendant F. wrong- No ap- fully neglected to have the said fixtures, goods, and things Pi'^i^emeut, appraised by two sworn appraisers, contrary to the statute in that behalf. 9. By reason of the illegal and wrongful acts mentioned in the oth and 7th paragraphs, the plaintiff has been deprived of the use and enjoyment of his said fixtures and goods, and has lost the value thereof, and been injured in his credit, and has lost large profits which he would have made by his said trade. 10. The plaintiff farther says that by reason of the irregu- larities mentioned in the (Jth, 7th, and 8th paragraphs, the said goods and fixtures sold for a very much less sum than they would otherwise liave realised, and the plaintiff was prevented from himself purchasing them at the sale, and preventing them being wholly lost to him as they now are. The plaintifi' claims : — (1.) Against the defendant D. £200, double value of the fixtl^res and goods illegally distrained and sold. (2.) Against both defendants £200 damages for the other wrongful and irregular acts and omissions above appearing. (?>.) Such further and otiier relief, &c. Statement of Defence of the ahove-named D. 1. The defendant says, that at the time he delivered the defence of '' . , . , one de- warrant of distress to the defendant F., as mentioned in the feuJant. 504 DISTEESS. Statement of defence of one de- fendant. Not guilty by statute. 8rd paragraph of the statement of claim, the plaintiff's rent was half a year in arrear, viz., to the amount of £15. 2. The defendant denies the allegations contained in the 4th and 5th paragraphs of the statement of claim. 3. As to the 0th, 7th, and 8th paragraphs of the statement of claim, the defendant says that he is not guilty. By statute 11 Geo. 2, c. 19, ss. 19, 21 (a). 4. The defendant does not admit the allegations contained in the 9th paragi'aph of the statement of claim. 5. The defendant denies the special damage averred in the 10th paragraph of the statement of claim. 'Statement of claim for trespass and illegal -distress. Action for Trespass, and also for Illegal and Irregular Distress. 1. The plaintifFis a dairyman at , canying on business at . The defendant is in possession of certain premises adjoining those of the plaintiff. 2. On divers days between August, 1876, and December, 1876, the defendant, with a number of servants and workmen, m'ongfully entered the plaintiff's said premises, and erected scaffolding, and deposited bricks and other building materials thereon, and cut through the roof of a cow-shed, part of the plaintiff's said premises. 3. The defendant also pulled do^\ai the party- wall between his premises and those of the plaintiff, and wrongfully erected in its stead a higher wall than the said boundary wall, and thereby caused the water from the roof of the defendant's said premises to flow upon and into the premises of the plaintiff, and the defendant further opened in the said wall so erected by him a doorway and windows looking into the cow-shed aforesaid. 4. In consequence of the wrongful acts stated in the two preceding paragi'aphs, the plaintiff was obliged to remove his cows from the said cow-shed, and temporarily to house them elsewhere at a very great expense, and to sell the same at a great loss, and was greatly injured in his said trade of dairyman, and lost the profits he would otherwise have made, and was otherwise damnified. (a) As to pleading this defence, see ante, pp. 47 — 49. EASEMENTS. 305 5. On or about the 3rd of January, 1877, the defendant. Statement under the assumption of a lawful distress for certain arrcai's of jJ^gj^JJ^'J ^'''' rent, wrongfully entered upon the plaintiff's said premises, and illegal and \n-ongfully seized and subsequently sold certain of the 'distress, plaintiff's goods and chattels. 6. If the defendant was entitled to distrain for rent as In the ^i. aforesaid, which the plaintiff denies, the plaintiff says that forexces- the defendant, at the time aforesaid, wrongfully distrained fj^^^"^^^' goods of the plaintiff of a much greater value than the amount of the said arrears and of the charges of the said distress, although part of the same was then of sufficient ^■alue to have satisfied the said arrears and charges, and might then have been distrained by the defendant for the same, and the defendant thereby made an excessive distress for the said arrears, contrary to the statute in such case made and provided. The plaintiff claims : — (1.) £500 damages for the wrongs complained of. Claims for ^' '^ ■,-,11 Li J. mam/amiK (2.) That the defendant be compelled to reduce the party- andinjunc- wall to the height of the original party-wall, and to t'o^. close up the doorway and window therein. (3.) An injunction restraining the defendant fi-om any repe- tition of any of the acts complained of. (-4.) Such further, &c. Easements ("). Claim hj Plaintiff for Obsln/rlion of a Watercourse, which he claimed an an Easement. 1. The plaintiff was, and still is, the owner and occupier of Statement . 1' ITT <5i claim tor certain lands in the township of Iv., m the county oi W. obstruction of water- course. (rt) A pcrBon may maintain an action for the disturljancc of any case- jyi.jtej.j.^i ment which he may possess ; and in that case the material averments in j^vcrments his statement of claim will be :— 1st. That he is the owner or occupier of \^ ^^^ ^^^^^^ a particular messuage or house. 2iidly. 'J'hat as such he is entitled to a ^^^ ^jj'^_ [)articular easement over the land of another, whether a ri^ht of way, of tm-ii.^n^.g of watercourse, f)f li^'ht and air, or wiiatevcr it may he. And :5rdly. That the ^^ ^^^^^,_ defendant has in some way obstructed it, and so damnified tlie plaiiitiif. \^^^^^^ ' Easements can be acquired either Ijy custom, grant (express and implied), X 306 EASEMENTS. Claim for ^ 2. The defendant J. 13. is the owner, and the defendant obstruction ^^Y g_ ig w^q occupiei' as tenant from year to year of a certain couree! ^^' ft^ld adjoining the said lands of the plaintiff. Sufficient for the plaintitl' to allege as a fact that by reason of posses- sion of a messuage, &c., he is entitled to a certain easement. The grantee of an ease- ment is prima facie bound to repair it. Easements are lost — 1. By abandon- ment. What amounts to proof of an abandon- ment. 2. A li- cence given and acted upon in- consistent with the continu- ance of the easement. 3. Release. 4. Termi- or by prescription, whether \inder the Prescription Act, by immemorial user' at common law, or by the fiction of a lost grant. (See on this subject the title, •' Trespass to Land," 2)ost.) Before the Judicature Act, it was decided that it was enough for the plaintiff in his declaration to allege that he was entitled to the particular easement by reason of his ])OSsession of a particular messuage, and that it was not necessary to aver how the easement arose, whether by grant or prescription. (JVorthain v. Jliirh'i/, 22 L. J. Q. B. 185 ; 1 Ell. & B. 6G5.) Every grantee of a right of way or watercourse to be exercised over and through the land of the grantor must himself repair the way if he desires to have it repaired and kept in repair for his own use, or if repairs are necessary to prevent the enjoyment becoming an annoyance and nuisance to the owner of the servient tenement. " If I grant a right to a watercourse through my land, the grantee is bound to keep the watercourse in proper order and repair ; and if it becomes ruinous and obstructed, so that the water floods my land, the grantee will be respon- sible for the nuisance." {Lord Egrcmont v. Pidmati, M. & M. 40'1. cited 1 Q. B. 775.) And in executing the repairs the person entitled to the right of way is not justified in doing anything to increase the burthen upon the servient tenement, or to enlarge and alter the nature of the easement. Easements once acquired may be lost in various ways, including — 1st, by the owner of the dominant tenement doing some act which unequivo- cally shows that he abandons the easement. " The presumption of abandonment cannot be made by mere non-user, the non-user must be the consequence of something which is adverse to the user." ( Ward v. Ward, 1 Exch. 838.) But if a person entitled to an easement, as of light and air, does any act of notoriety showing that he abandons the benefit of the light and air that he enjoyed, he may lose his right in a much less period of time than would suffice to enable him to gain it. Thus where the owner of a building with ancient windows overlooking the defend- ant's premises pulled down the building and erected another with a blank wall without any windows, and fifteen years afterwards the defendant erected a building next this blank wall, and the plaintiff then opened windows in the blank wall in the place where his former windows stood, and then brought an action against the defendant for the obstruc- tion to the light and air caused by the defendant's new building, it was held that the windows thus opened could not claim the privileges of the ancient windows which had formerly existed where they now were, and that therefore an action was not maintainable. {Moore v. liaw-wn. 3 B. & C. 332.) 2nd. Where the owner of the dominant tenement has given another even parol permission to do an act which is inconsistent with the continuance of the easement, and that other acts upon the parol licence and incurs expense, the easement may thereby be destroyed, as where the plaintiff, having a right to the use of a stream of water which flowed through the land of the defendant, gave the defendant a parol licence to lower the banks of the river and erect a weir and divert a portion of the water which had previously flowed to the plaintiff's mill, it was held that the plaintiff, after he had so given up his right to the water that had been diverted, and after he had suffered the defendant to act upon the faith of such relinquishment and incur expense, could not retract the licence given, though his easement was thereby destroyed. {Ligyim v. Inge, 7 Bing. 682.) 3rd. An express release by deed of the easement will of course destroy it. 4th, So where EASEMENTS. 307 3. Prior to the year 1850, one T. D. was owner in fee botli of the plaintiff's lands mentioned in the 1st paragraph, and of the defendant's lield mentioned in the 2nd paragraph of the statement of claim, and the water in and upon the lands now of the plaintiff had flowed for a long period of time before the year 1850 fi'om the lands now of the plaintiff, by means of an open ditch or water-course through the field now of the defen- dant, and had been carried away from the plaintiff's said lands by means of the said ditch or water-course. 4. In or about the year 1850, the said T. D., being owner in fee both of the said lands and of the said field, sold and con- veyed the said field to a predecessor in title of the defendant's, subject to the continuous easement in favour of the owners and occupiers of the said lands, of the right for the water on the said lands to flow from the said lands by means of the said ditch or water-course, and to be carried thereby away fi-om the said lands now of the plaintiff. The said continuous easement was reserved to the said T. D., his heirs and assigns, as to the said lands now of the plaintiff appertaining. 5. Tlie plaintiff will contend that he is of right entitled to have the water on his said lands flow from his lands by means of the said ditch or water-course, and so to be carried away from his said lands as to his said laiids appertaining. Claim for obstruc- tioa of a water- coui\se. the easement is a way of necessity, when the necessity for it ceases so will the easement, nth. Unity of ownership of the dominant and servient tenements will destroy the easement. A man cannot have an easement in his own land. Therefore, when it happens that both the dominant and the servient tcuemcnts come into the same hands, the ease- ment is at an end ; but this result only ensues when the owner has an estate ccjual in duration and quality in both the lands. Thus, if a man is seised in fee of the dominant tenement, but has only a life interest or a leasehold interest in the servient tenement, or vice versa, then the •easement is not extinguished. In such a case it is suspended merely, and upon the severance of the two estates it will revive. An important rlistinction consists herein between the cases where an casement is sus- Ijcnded and where it is extinguished. 0th. It was once thougiit that if a man Viaving ancient windows, and possessing therefore an easement of light and air, were to enlarge the windows, tlie whole of the windows, ancient included, miglit be obstructed if that was the only way in which the new windows could be obstructed ; but it is now settled that this was An erroneous'view, and has been decided that if new or enlarged windows cannot Ijc obstructed without at the same time obstructing aiicient unaltered windows, an obstruction to such last-named windows cannot, be allowed. {Tapliiuj v. Jones, M L. J. C. i'. (II. L.) H42, overruling Jti^nxhaii' V. lican, 21 L. J. (.1 V,. 21'J : and Jridchinson v. Coi)est(ikc, \]\ L. J. C. P. I'J.) X 2 nation of the neces- sity wlierc it was ail easement of necessity. 5. Unity of ownership of domi- nant and servient tenements. The cflect of an at- tcm])t to enlarge the easement. 308 EASEKENTS. Claim foi' obstruc- tion to a water- fouree. 0. The j)laintiff will contend that he is entitled to the said right : — (1.) By reason of an implied grant, created on the sale and conveyance of the field, as mentioned in paragraph 3, (2.) By reason of the enjoyment thereof as of right and without interruption for 20 years before this action by the occupiers of the plaintiff's lands. (3.) By reason of a lost grant. 7. The plaintiff' will also contend that the defendants, as. owners and occuj)iers of the said field, are liable to keep the said ditch and water-course open, and in a sufiicient and proper state of repair to take, receive, and carry away the water from the plaintiff's said lands, and that the plaintiff is of right en- titled to have the said ditch and water-course so kept in a proper state of repair as to the said lands of the plaintiff' appertaining. 8. The plaintiff will contend that he is entitled to this right,, and that the defendants are liable as in the last paragraph men- tioned, by reason of the matters mentioned in the Gth para- graph of the statement of claim. 9. The plaintiff will also if necessary contend that the said ditch was a natural water-course, proceeding from the plaintiff's said lands into and through the defendant's said field, and that the plaintiff' was entitled to have the water from his said fields flow through and be carried away by means of the said ditch or watercourse. 10. The defendants wrongfully filled up the said open di-ain and water-course, and obstructed the flow of the water along the same, and instead of the said open di-ain, placed tiles and pipes, which were wholly insufficient to carry away the water from the plaintiff"s land. 11. The plaintiff will also if necessary contend that the defendants did not keep the said ditch or water-course open, and did not keep it in a sufficient and proper state of repair to receive and carry away the water from the plaintiff's said lands. 12. By reason of the premises, the water did not flow, and was not carried away from the plaintiff's lands as it ought to have done, and would have done, and the plaintiff's said lands- were flooded and damaged. EASEMENTS. 309 13. The plaintiff claims : — Claim for (1.) £100 as damages for the An-ongful acts and gi-ievances J^'^^^J'j;." above mentioned. course. (2.) An injunction mandatory and otherwise ordering the defendants, their tenants, agents, and servants, to abstain from interfering with the flow^ of the said water, and fi-om preventing the water from flowing away as it ought to have done, and as it formerly did, and commanding the defendants to open and restore the said ditch and water-course to the state it formerly was in, and to put and keep the same in a state of repair sufficient and proper to receive and carry away the water from the plaintiff's said lands. (3.) Such other relief as the nature of the case may require. Statement of Defence. 1. The defendants deny that the defendant J. B. is owner as Defence, alleged of the field mentioned in the statement of claim. He is tenant for life thereof. 2. The defendants deny that the plaintiff is entitled to the casements or rights claimed by him in the statement of claim, -(•r any of them, on any of the grounds therein set forth. 3. The water-course in question is not a natural water- course. 4. There was not upon .the conveyance mentioned in the 4th paragraph of the statement of claim, any reservation, either ■expressed or implied, of any such casements or rights as alleged. 5. The occupiers of the plaintiff's land have not for 20 years enjoyed as of right, and without interruption, any such casement or right. The easement, if any, enjoyed by them has been for the carrying off' of surface water, and has been a less onerous easement than that now claimed by the plaintiff. If any water other than surface water has at any time passed from plaintiff's land through the water-course or drain on de- fendant's land, it has been for a less period than 20 years. No right has been acquired by any enjoyment which the said occupiers may have had, because the defendants' land has been held since the 7th of June, 18r>7,by the defendant J. B., under a term for life, and there has not l)een 20 years' enjoyment 310 EASEMENTS. Obstiuc- excluding tlic life tenancy. The tiles and pipes complained of tion of a by the plaintiif were placed where they now are more than a comie y^'^^' ^^^'^'^'^c this suit, and if they are any obstruction of the Defence. plaintiff's alleged right, they are also an interruption of the enjoyment, and have been acquiesced in by the plaintiff and his predecessors in title for more than a year. 6. There has been no grant in fact of any such easement or right as is claimed by the plaintiff', and the circumstances have not been such as to raise a legal inference of a grant having been made and lost. 7. The defendants never have, nor has either of them, in any way obstructed the flow of water along the said water-course. They did not, nor did either of them, place tiles and pipes therein as alleged. 8. The alteration alleged in the 10th paragraph of the state- ment of claim to have been made in the said watercourse, if made at all, was not made by the defendants or either of them. One W. D,, the father and predecessor in title of the plaintiif, made the alteration or some part thereof. He did so within the last 20 years by the permission of one G. W., a former tenant of the defendant's field, but he did not thereby acquire any right to drain through the drain made by him, but only had at most a revocable license. G. W., who, if any one, granted the license, had no power to bind the owner of the land. If the plaintiff"s said predecessor did acquire any right, it was only to use the di-ain as then made by him, and for the purpose for which it was then used, and the drain which he so made has not been interfered with by the defendants, or either of them, except that immediately before this action, and after the plaintiff's complaint had been made, the defendants caused the drain to be opened for the purpose of seeing whether it was obstructed. What they then did was at plaintiff"s request and for his benefit, and caused no obstruction. 9. The plaintiff has recently drained his land with new miderground di'ains, and he has thereby largely increased the quantity of water flowing into the drain through the defendant's field. He now sends through the said drain underground water from his new drains, in addition to the water which formerly flowed there. 10. The damage of which the plaintifi" complains is not EASEMENTS. 311 caused by the insufficiency fi-om want of repair or otherwise of Obstmc- the drain through the defendant's field, to carry off" the water ^'"^g^. ^ which formerly flowed through it, but by the increase of water course. caused by the jilaintitt" draining his own land. Defence. 11. The obstruction (if any) to the flow of the water is not in the defendant's field, but on land to which the water flows after passing through the drain in defendant's field. 12. The defendants have never, nor has either of them, be- come liable in any way to clear out or keep in repair the drain or water-course. If the plaintiff has the easement of di'aining through the said drain as claimed by him, it is upon the terms (jf keeping the drain in repair and clearing it out himself. 13. The defendants, although they do not admit any right on the part of the plaintiff, have ottered and are still ready and willing that the plaintiff' should, upon paying compensation for all damage done to their said field, enter thereon and clear out the drain, and do at his own expense such works as may l)e required to make it effectually carry off' the water from the plaintiff's land. Such works will, however, be useless, and may cause damage to the defendants' land for which the plain- tiff" will be res})onsible, unless the plaintiff" can procm-e similar liermission from the owners of the other lands, to which the water flows, after passing through the defendants' land, and where it is now obstructed. Claim hij ilir Plaintiff for an Ohstnidion of an Easetmnt of Li// Jit. 1. At the time of the committing of the grievance herein- oi'stnic- after mentioned, the plaintiff' was the owner and occupier of a ij„ijt^ and dwelling-house, situate at No. — , Street, C — , used as offices other tres- by himself, and by other persons, who Avere his tenants thereof. ijijurie«. 2. In the west side of the house the plaintiff" had a large fanlight over a door in the house, through which fanlight the plaintiff was entitled to have the light enter into his house. 3. The plaintiff' had also a window adnn'tting light into an office in the west side of the house, such window being over the fanlight above-mentioned, and through this window the plaintiff was entitled to have the light enter into his house. 4. On the south side of the house the plaintiff had five 312 EASEMENTS. Obstruc- windows, through whicli he was entitled to have the light enter \\°J^^f into his house. 5. The plaintiff had also a cottage and out-huildings behind the house. G. The plaintiff had a water-spout affixed to the cottage, which was joined to and connected with a water-spout belonging to the o^\^lers of the buildings adjoining the cottage, and the rain-water that fell on the roof of the cottage was carried oft" the roof by means of the watcr-spouts so joined and con- nected. 7. The plaintiff was entitled to have the rain-water that fi-om time to time naturally fell on the roof, drop and flow fi-om the water-spout of the plaintiff affixed to his cottage into and through the water-spout belonging to the owners of the buildings adjoining the cottage, and so on to the land of the plaintiff. S. The defendants, before the commencement of this action, erected and still kept erected a large building near to the plaintiff's house and cottage, on the side thereof, and so high that the access of light to the plaintiff's house through the fanlight and windows on the west side of the house, or through the five windows on the south side, had been gi-eatly ob- structed, and the house been rendered dark and of less value, and permanently injured. 9. The defendants, in erecting the building adjoining the plaintiff's house and cottage, so wrongfully, negligently, and carelessly erected the same, that they caused a large quantity of water to run into and through the walls, plaster, and wood and other work of the cottage, so that the same became greatly and permanently injured thereby. 10. The defendants, in erecting the building, wrongfully carried away and removed part of the water-spout of the plain- tiff affixed to the plaintiff's cottage, and disconnected it from the other part of the said spout, and also from the water-spout of the owners of the buildings adjoining the cottage, and re- moved the water-spout of the owners of the buildings adjoining the cottage, so that the rain-water from the roof of the plain- tiff's cottage ran down the walls thereof, and thereby greatly injured the cottage. n. The defendants also wrongfully broke and removed a EASEMENTS. 313 stone in the wall of the plaintiff's house, upon which a door Obstruc- protecting the plaintiff's house rested. [1°^^° The plaintiff claims £1500 damages. Statement of Defence. 1. As to the 1st and 5th paragraphs of the claim, the de- fendants admit that the plaintiff, at the time of the alleged grievance, occupied certain rooms in the dwelling-house in the 1st paragraph mentioned ; but save as aforesaid, the de- fendants deny the 1st and ilth paragraphs, and they deny that the persons in the 1st paragTaph described as tenants, were the plaintitt"s tenants ; and they say that the plaintiff is not entitled to the reversion of the dwelling-house, and is not entitled to sue for permanent injury to the dwellhig-house, cottage, or outbuildings, or for any injury thereto, or to any part thereof, or for any injuiy not affecting his interest in the rooms occupied by him. 2. As to the 2nd paragraph of the claun, the defendants admit that, on the west side of the dwelling-house in the claim mentioned, there was a fanlight over the door, 2 ft. loin, long by 1 ft. 7 in. deep ; but they do not admit the residue of the 2nd paragraph. 3. As to the 3rd paragraph of the claim, the defendants say that, if there ever was a window over the fanlight, which they do not admit, it was not of greater depth than 5 ft. G in., nor of gi-eater l>readtli than 3 ft. in., and the same had for a long time before the opening out of the same as hereinafter mentioned been closed up by a permanent obstruction, so that no light could or did enter through tlie same. Shortly Ix'fore tlie time when the defendants commenced the erection of the Iniilding hereinafter mentioned, and after the plaintiff" liad notice that the works were about to be commenced, the plaintiff' caused the window to be opened out. Have as aforesaid, tlie defendants do not admit the 3rd paragi-aph, and they do not admit that the plaintiff" ever was entitled to have light enter into the said house, as alleged in tliat paragraph ; and if lie ever was so entitled, the defendants say that the plaintiff" had ceased to be so entitled before the time of the alleged gi'ievances, and was not so entitled at the time of the alleged grievances. 314 EASEMENTS. Obstruc- 4. As to paragTa])!! 4, the defendants do not admit that tion of ^\yQ plaintiff had five windows on the south side of the house ; light, &c. ^ • T 1 Defence. ^"^^ ^^^^ defendants deny that the plaintiff" was entitled to have lit>'ht enter into the house, as is in that paragraph alleged. T). As to the Gth and 7th paragraphs of the claim, the defen- dants say that at the west side of the dwelling-house, cottage, and outbuildings in the claim mentioned there was a party- wall, which belonged to the owners of the dwelling-house, cottage, and outbuildings, and to the owners of the premises adjoining, as tenants in common ; and the water-spout alleged to be affixed to the cottage was affixed to the party-wall, and was the property of the owners of the cottage, and of the owners of the adjoining premises, as tenants in common ; and sa^'e as aforesaid, the defendants do not admit the 6th and 7th paragraphs of the claim. 6. As to the 8th paragraph of the claim, the defendants admit that before the commencement of the action they, or the servants of the Commissioners of Her Majesty's Works and Public Buildings, who were the owners of the aforesaid pre- mises adjoining the dwelling-house, cottage, and outbuildings, in the claim mentioned, erected a building on the adjoining premises, on the west side of the dwelling-house. Save as aforesaid, the defendants deny the said paragraph. The de- fendants further say that the access of light to the dwelling- house has not been obstructed, and has not been so obstructed as to cause any injury to the plaintiff", or to his interest in the dwelling-house. 7. As to the 9th and 10th paragraphs of the claim, the de- fendants say that they did, as the servants of and by the directions of the Commissioners, in the course of erecting the Ijuilding on the adjoining premises, place and suffer to remain, for a short space of time, certain boards on the top of the party-wall, and that they did, as the servants of and by the directions of the Commissioners, remove the water-spout, with the intention of replacing the same. The defendants further say that soon after the removal of the water-spout, they put up a new water-spout, to catch the rain from the cottage, and the new water-spout caiTies the rain from the roof of the cottage in as eff'ectual a manner as the old water-spout did. Save as aforesaid, the defendants deny the 9th and 10th paragraphs ; EXECUTORS AND ADMINISTRATORS. 815 and they deny that they acted wrongfnlly, negligently, or care- lessly, as aUeged. 8. As to the 11th paragraph of the claim, the defendants say that the said stone was a stone in the party-wall, and the defendants, as the servants and by the orders of the Com- missioners, removed a portion of the stone. The removal of the portion of the stone caused no injury to the wall. The plauitiff" had no right to have the door rest on the stone, and the door was not the plaintiff's door. 9 (a). The defendants have paid into Court £20, and they say that if any damage has been suffered by the plaintiff, by reason of any of the acts complained of in respect of matters for which the plaintiff has any right of action against the de- fendants, the said simi is sufficient to satisfy the claim of the plaintiff in respect thereof. Obstruc- tion of light, &c. Defence. Executors and Administrators (5). Action ly Executors on Promissory Kates and Money lent hy the Testator. 1, The plaintiffs are the executors of the will of G. A. deceased, who died on the 26th of June, 1877, and whose wiU was proved by the plaintiffs on the 8th of September, 1877. By execu- tors on notes anil for money lent. (a) This last paragraph was held to have been improperly pleaded in Spurr V. Hall, L. R. 2 Q. B. (JIT^, and see ante, pp. aO, 53. {b) The followinjj is a brief outline of the law affecting executors and administrators, so far as it comes within the scope of this work : C'ontrartx.'] — Contracts with a testator having reference to his real wrhen exe- estate pass with the n.-version where the testator's interest was only of a q^x^q^s cliattel nature to his executors or administrators ; and those of a similar g^^ ^^^^ kind having reference to the freehold, pass to the heir-at-law or devisee, sue'on con- 'ITiere is this impoi-tant distinction between tlie two cases that in the case tracts of of the testator's chattels real, if he has not himself sued for breaches of te'gtator covenant affecting them, the jjcrsonal representatives cannot sue unless ^^ ' on account of some distinct injury to the testator's personal estate. In the other cases the heir or devisee can sue only in res])eet of breaches after the testator's death. {Kingdon v. Nuitlc, 1 M. & S. 35;") ; Jonrs v. AVw//. 4 M. &; S. 188.) Personal contract with testat. The first and second of the said promissory notes were made respectively by the defendant on the 1 (ith day of March, debt of the testfitor, &c., out of his own estate, unless the contract is evidenced by some writing. Formerly counts against an executor or administrator could not have been joined with counts against him personally, for claims against him on his own account. Now, however, such claims may be inchided in the same statement of cLaim, under the provisions of the Judicature Acts, and the Orders and Rules thereunder. See Order XVII. r. 5. Defence that the defendant was not executor, &c. ^.^ iWiiiat will > and will not con- stitute an executor de soil- tort. Defence that the defendant has duly adminis- tered all the assets. Defences by Executors and Administrators. Drniiil that drfctulant n-ax executor, ,S'c.']—A\\ executor or adminis- trator should be careful in pleading this defence, as, if the issue is found against him, the form of judgment against him would affect his own property, in the event of the testators or intestate's being insufficient, on the ground that he must have known that the defence was unfounded. (See 2 Wms. Exors. r)th ed. 1789.) There is nothing in the Judicature Act which exi)ressly alters this rule of law, except that among the forms of judgment given there is no form to meet such a case. In answer to this defence, it is sufl&cient to show that the defendant acted as executor dc son tort. There are a variety of acts which will invest a person with this character. Evidence of slight acts of inter- meddling with the property will be sufficient. A person dealing with a lease granted to the deceased is chargeable as assignee of the term. (See Svniiamii v. IR'alrs, L. R. '.) C. P. 177.) The following circum- stances are enumerated by an eminent authority as insiijficient to bind a person as executor de son tort, viz. : — Locking up the goods of the deceased ; directing the funeral out of his effects ; feeding his cattle ; repairing his houses; providing necessaries for his children. (1 Wms. Exors. 7th ed. 201, 2(i2.) The inference drawn from certain acts, on which a i)erson is sought to be made executor dr son tort, may be re- butted, by showing that he acted under the authority of the rightful executor (Sijlws v. S)jlies, L. R. 5 C. P. 113), or of a person to whom administration was afterwards granted. {IIUl v. Curtis, L. R. 1 Eq. 90.) There is apparently nothing in the Judicature Acts or Orders and Rules to affect the provision of the 5th rule of T. T., 18.53, that "in all actions by and against executors or administrators, the character in which the plaintiff or defendant is stated on the record to sue, or be sued, shall not in any case be considered as an issue, unless specially denied." Plene administravit.] — In defences which correspond with the former 2)le>w administrarit, it is essential that the defendant should allege that he had not, at the commencement of the suit or since, any goods of his testator or intestate. This was essential even formerly. (Atkins v. Hum- 2)lnrij, 2 0. B. (io-l.) Where such a defence was open to an executor, &c., and he did not ]i)lead it, he was taken to admit assets, and in the event of the assets of deceased proving insufficient, he would be personally liable to make good the deficiency. This law is not apparently affected by the recent changes in procedure. The plaintiff may, on a defence of ^^Ze/w administravit being pleaded, sign judgment for debt and costs, to be paid out of future assets when they should come in {quando accederint). If the plaintiff joins issue on such a defence, and is successful, he will be entitled to judgment to the extent of the assets proved, and of future assets for the residue of the debt, if any. (2 Wms. Exors. .'Jth ed. 1790.) If he fails, srmhlc he will not be entitled to judgment to be paid out of future assets. {lb. 1794.) EXECUTORS AND ADMINISTRATORS. 319 1876, whereby he promised to pay to the said G. A., or bearer, on demand, £200 on each of the said promissory notes, for The observation made above on the defence denying the executorship or the a^^lministratorship, viz., that the executor, &c., should be carefixl not to plead it, unless he thinks he has good ground for it, will apply equally to this defence, as he will, in the event of failing to establish it, be liable for the costs. The order of distribution which was formerly observed in administer- ing assets under 22 & 23 Vict. c. :^5 has been altered by the 32 & 313 Vict. c. 46, which provides that in the administration of the estate of every person dying after the passing of the Act, debts secured by bonds (specialty debts) shall have no priority over simple contract debts. " pro- vided always that this Act shall not prejudice or efEect any lien, charge or other security which any creditor may hold for his debt." It has been held that the etfect of this provision is to postpone a specialty debt to an unregistered judgment obtained against an executor on a simple contract debt^ {M'illiaim v. }\'ilHaiiix, L. R. 15 Eq. 270.) A further change is made by the Judicatxire Act, 187."), section 10, which declares that in the administration b>j the Court of an insolvent estate, '• the same rules shall prevail or be observed as to the respective rights of secured or unsecured creditors, and as to debts and liabilities provable, or as to the valuation of annuities and future and contingent liabilities respectively," as may at the time prevail in bankruptcy. An executor, &c., may pay a debt though barred by the Statute of Limitations. {Lowis v. llitmney, L. R. 4 Eq. 451.) And if sued for a debt so barred, he, by omitting to plead the statute, does not render himself liable to another creditor or creditors. ( Williamson v. JVai/lor. 3 Y. & C. 211.) Where a verdict was found against an executor on a plea of plene ndministravit, and an action of debt was afterwards brought on the judgment alleging a devastavit, the defendant (executor) was held estopped from showing that the devastavit was committed with the plaintiff's consent. {.Tewsbunj v. Mummery, L. R. 8 C. P. 56, Ex. Ch.) A married woman, who has proved a will as executrix is. after her husband's death, liable for a devastavit committed by him. (Soady v. Turnbull, L. R. 1 Ch. 494.) An executor was, by 30 Car. 2, c. 7, enlarged by 4 W. & M. c. 24, made liable for a devastavit by his testator or intestate. It has Vjeen held that the effect of these statutes is, that whatever act of an executor, or of an executor de son tort, would have made him personally liable and chargeable with payment de bonis pnijfriis, will now make his personal estate liable in the hands of his executor or administrator. (2 Wms. Exors. 7th ed. li)'J8, 1999 ; and Coward v. Gregory, L. R. 2 C. P. 153.) But the executor of an executrix dc son tort is not liable for breach of contract committed by the person with whose property the executrix has meddled. ( Wilson v. Jlodson, L. R. 7 Ex. 84.) Plene administravit 2}r(ftcr.~\ — This defence consists of an allegation that the defendant has fully administered all the personal estate of the anking Company, of which bank the plaintiff is one of the registered pul)lic officers, and brings this action in that character. 2. The said AV. H. died on or alxjut the 31st of Jaunaiy, Y 322 EXECUTORS AND ADMINISTRATORS. Against executor for delit of the testa- tor. 1875, having previously duly made his will, dated the Dth of July, 18G3, whereby he appointed the defendant, W. H. A., and J. H. executors thereof. 3. The said will was duly proved by the said defendant, W. H. A., alone, and he is the sole acting executor of the said W. H. 4. At the time of the death of the said W. H., the balance due to the said banking company from the said firm of " T. & W. H." on the aforesaid banking account amounted to the sum of £371 2s. The said last mentioned sum has since been reduced by sundry payments on account thereof, made by or on behalf of the defendants, or one of them ; and on the 15th of March, 187G, the amount remaining due on the said account was the sum of £21G 175. Gd. 5. The said sum of £210 17s. Gd., together with interest thereon from the said Ifith of March, 1876, remains due to the said banking company from the defendant W. H. A., as such executor as aforesaid, and from the said defendant T. H., jointly and severally. The plaintiflf claims payment of the said sum of £ 2 1 G 17s. Gd., together with interest thereon from the IGth of March, 187G. Statement of Defence of IF. H. A., the Executor of the deceased. Defence. 1. The defendant W. H. A. says that the banking account mentioned in paragraphs 1 and 4 was a joint banking account only of the firm of T. & W. H., and not a joint and several banking account. 2. As to paragraph 4 of the plaintiff's claim, the said defend- ant denies that the balance in the said paragraph mentioned, or any part thereof, was due to the said banking company from the said firm of T. & W. H. as alleged ; and further denies that any of the said alleged balance remains now due as alleged. 3. And to the said 4th paragraph the said defendant further says, that after the death of the said AV. H. the de- fendant T. H. paid out of the assets of the said firm, and out of moneys received by him in respect thereof and other- EXECUTORS AND ADMINISTRATORS. 323 yn&e, to the said bankino- company, large sums of money in Against respect of the said banking account, and thereby satisfied the executor plaintiflTs claim in respect of the alleged Ijalance of £371 2.s'., the testa- by payment thereof. *°^"- 4. The said defendant denies the oth paragraph of the state- ment of claim. 5. The said defendant has fully administered all the personal Defence of •estate and effects which were of the said "\Y. H., deceased, and aJj^J„- . Avhich have ever come to the hands of the said defendant as travit. ■executor as aforesaid to be administered ; and the said defendant had not at the commencement of this suit, nor has he since had, nor has he any personal estate or eftects of the said AV. H., deceased, in his hands as such executor as aforesaid, to be .iidministered. 6. The said defendant, as such executor as aforesaid, is solely interested in the separate estate of the said W. H., deceased ; and deljts due to the late firm have, to a large amount, since the decease of the said W. H. been paid to the defendant T. H., in whose hands and under whose control was and is property to a large amount belonging to the late fii-m ; and the said T, H., as such surviving partner, is solely liable for the debts and liabilities incurred and owing by the said firm, and there were and are sufficient funds of the partnership property in the hands of the said T. H, to satisfy the plaintiflF's claim, and such funds should, in any event, be first exhausted before recourse be had to the said defendant as such executor as aforesaid. 7. Before and at the time of the death of the said W. H., certain deeds and other securities belonging to the separate estate of the said W. H. and to the estate of his wife, had been and were deposited with the said banking company by way of security for any balance that might be owing to the plaintiff on the banking account of the said firm of T. & AV, H. ; and after the death of the said W. H. the said banking company delivered up the said deeds and securities to his said wife, and to this defendant, as executor of the said W. IT., and agreed to take the security of the suiwiving partner, the said T. II., in discharge of any balance that might be due on the said banking account, and discharged this defendant as such executor from all liability in respect of the balance alleged to be due on the aforesaid banking account, and agi-ced to look to the said T. II. and to Y 2 S24 EXECUTORS AND ADMINISTRATORS. Against executor for debt of the testa- tor. the partnership property in the hands of the said T. H., as above mentioned, in respect thereof ; and this defendant, rely- ing on the premises, and with the knowledge and consent of tlie said banking company, proceeded completely to administer tlie estate and eflFects of the said W. H. Reply. The plaintiflP joins issue upon the defendants' statement of defence, save in so far as it contains admissions of the matters- alleged in the statement of claim. Execufrices of Dentist to recover charges for teeth, &c. — For Precedent of this claim, see p. 435. Against adminis- trator for detinue and money lent. Action against Administrator for Detinue of Goods hg Deceaseds 1. The plaintiff is a gentleman, now residing at , in the county of . 'I. The defendant is the administrator of the estate and effects of one Mary S., deceased. 3. From or about 1871 until her death, hereinafter men- tioned, the plaintiff occupied partially furnished apartments in the house of the said Mary S., deceased. The plaintiff was pos- sessed of divers articles of household fm'niture, and of certain pictures, wine, books, papers, memoranda, banker's pass book, and other documents and T^Titings, the whole of which were in the house of the said Mary S., deceased. The plaintiff caimot at present state the particulars of such property, the whole of it being, as hereinafter mentioned, in the possession of the defend- ant, and the plaintiff possessing no list thereof, and not being- able to give an accm-ate hst from memory. 4. In the month of November, 1877, the said Mary S. died, and letters of administration of her estate were subsequently duly granted to the defendant. 5. The plaintiff shortly afterwards applied to the defendant as administrator as aforesaid, and required and demanded of him that he should give up and return to the plaintiff the property in paragraph 3 hereof mentioned. G. The defendant, however, refused to return, and has not returned, the said property, or any part thereof, to the plaintiff^ FALSE IMPRISONMENT. 325 and he -nTongfully kept and detained, and still wrono-fnlly keeps Against and detains, the same from the plaintiff". trator for 7. The plaintiff during the lifetime of the said Mary S. detinue advanced and lent money to her. Such advances (particulars j^J^J '"^"ey of which have been delivered to the defendant) amounted in ihe whole to the smn of £50. 8. The said sum of £50 has not been repaid. The plaintiff claims : — (1.) A return of the personal property hereinbefore men- tioned, or £1000 its value, and £ damages for its detention. (2.) Also an injunction to restrain the defendant, as admi- nistrator as aforesaid, from dealing with the said goods, and from detaining them from the plaintiff. (3.) The said sum of £50 mentioned in the said paragraph. (4.) Such further or other relief, &c. Executor Claiming umler Lord CamphelVs Act for Injuries Causing the Death of his Testator. — For precedent of this claim, see under head Negligence, post, pp. 482 — 3. Exoneration. See Release — Rescission. False Imprisonment («)• Action for giving the Plaintiff into Custoilg on a False Charge of Felony. 1 . The plaintiff is a journeyman painter. The defendant is pi-isonment a builder, having his building yard, and carrying on business on a charge ° °2 _^ 01 felony. ! (a) A total restraint of the liberty of the person for however shorta time -what con- ■"even by forcibly detaining the party in the streets against his will," stitutes a will amonnt in law to an imprisonment (Jiird v. Joncx, 7 Q. B. 742, 752) ; fai^e iniijri- and if such imprisonment is unjustifiable it will amount to a false impri- sonnicnt. ^onment and be actionaVjle. An arrest or imprisonment, however, is not •confined to a corporal seizure. " If a person send for a constable and give another in charge for felony, and the constable tell the party ^shargcd that he must go with him, (m which the other, in order to prevent the necessity of actual force being used, expresses his readiness to go, ;and does actually go, this is an imprisonment." (Per Abbott, G. J., in )^2{^ FALSE IMPRISONMENT. False im- '^^ ? ^^^^ ^'^^' ^'-^ luontlis before and up to the 22nd of prison- Aiigust, 187 — , the plaintiff was in the defendant's employment inent on • • , a charge of ''^s a journeyman paniter. felony. 2. On the 22nd of August, 187 — , the plaintiff came to work A partial restraint will not constitute an impri- sonment. Classes of defences to action for false impri- sonment. I. Arrest IN Execu- tion OF A Warrant. Responsi- bility of sheriffs, constables, &c., mak- ing an arrest. Of justices issuing a warrant of arrest. Liability of persons setting the justice in motion. Pococh V. Morse, Ry. & Mo. .321.) But though there need not be an actual* seizure of the person to constitute an imprisonment, the restraint on his liberty must be total. A partial restraint, as by preventing a person advancing along a particular pathway, while allowing him to retire, is not enough. (Bird y. Jones, xupra.) It maybe taken that pr'nnafaeie any imprisonment of another is unlawful and actionable, and it lies upon the defendant first to plead and then to prove facts justifying the im- prisonment ; and this introduces the subject of defences to this kind of action. These defences may be briefly adverted to under two heads : — First, where the defendant justifies on the ground that he was executing- legal process ; and secondly, where the defendant cannot plead that he was actually execitting a warrant, but can set up that he had reasonable- and probable cause for believing that the plaintiff had committed an offence for which he was by law justified in arresting him. Coming to the first of these heads of defence, a distinction must be drawn between the subordinate ministers of the law, as constables and bailiffs, and those who set them in motion. The law may be stated in a few words to be that, where sheriffs, bailiffs, or constables act within the terms of the warrant issued to them, and arrest the right persons, and use no more- violence than is absolutely necessaiy, they are protected, although the warrant is in some respects irregular, and may even have been issued without jurisdiction. (See the 13 & 14 Vict. c. (il. s. 19, the 11) & 20 Vict. c. 108, s. 60, as to bailiffs of county courts, and the 21 Edw. 2, c. 44, s. 6, as to constables.) With respect to justices issuing the warrant, the law is- otherwise. If a justice issues a warrant, having no jurisdiction in ilw matter, and the plaintiff is arrested on such warrant, the constable exe- cuting the same is free from responsibility, but the justice is liable in an action ; bitt if the justice have jurisdiction, he can only be made liable in an action by the plaintiff alleging and proving that he acted mali- ciously and without reasonable and probable cause. It is important to- bear in mind that where a jixstice is sued for anything done by him in his office, the plaintiff may be called on to show, as conditions precedent to his right of suing, (a) that he has given the justice one month's notice of action ; (Jj) that any conviction or order made against him upon the warrant has been quashed ; and it is also important to remember that the justice when sited can tender a sum of money as amends, and raise all the defences which he means to rely on by the general plea of " Not guilty by statute." "(See the 11 & 12 Vict. c. 44, ss. 10, 11, and Addison on Torts, c. 1.5, sec. 3.) This is one of the few cases where, under the new system of pleading, this general mode of setting up a defence is allowed. Where the justice or judicial officer has not acted altogether mero motv, but has been in the first instance set in motion by another, it will depend itpon a number of circumstances whether such person is liable as well as the justice or not. No doubt if he acted maliciously and without reason- able and probable cause, he would be liable in damages for a maliciouS' arrest, and perhaps for a malicious prosecution ; but if a man merely lays a complaint before a justice in a matter over which the justice has a general jurisdiction, and the justice grants a warrant upon which the person charged is arrested, the party laying the complaint is not respon- sible for a false imprisonment, although the particitlar case is one in which the justice had no authority to act. (^Carratt v. Marley, 1 Q. B. 18.) FALSE IMPRISONMENT. 327 as usual in the defendant's yard, at about six o'clock in the False im- morning. piisonment 3. A few minutes after the plaintiff liad so come to work, the of felony. defendant's foreman, X. Y., who was then in the yard, called the plaintiff to him, and accused the plaintiff of having on the previous day stolen a quantity of paint, the property of the defendant, from the yard. The plaintiff denied the charge, but X. Y. gave the plaintiff into the custody of a constable, whom he had previously sent for, upon a charge of stealing paint. 4. The defendant was present at the time when the plaintiff II. Arrest without a Warrant. Cases So far attention has been directed to the class of cases where an imprisonment is justified on the ground that the defendant was acting in tlie execution of a warrant, but in certain cases a man is justiiied in arresting another although he is not the holder of a warrant for his arrest. The chief of these cases are : 1. "V\T3ere a constable has reason to believe that afrhm// has been committed, and that the plaintiff has com- mitted ,it. he may arrest him without warrant. 2. Where a felony has actiialh/ hcc/i conimittcd and there is reasonable and probable cause for believing that the plaintiff has committed it, a private individual may arrest another without warrant. 3. Either a constable or a private indi- vidual may while an affray is going on, and to prevent the continuance of a breach of the peace, make an aiTcst. 4. By the Malicious Injuries to Property Act (24 & 2') Vict. c. 97. s. fil) it is provided that any person found committing an offence under that Act may be arrested without warrant, (a) by a constable ; or (/>) by the owner of the property injured, his servant, or any person authorised by him, as the occupier. .5. Any person found committing an indictable offence, whether a felony or a misdemeanour, in the night-time, i.r., between 9 p.m. and 6 a.m., maybe an-ested without a warrant. 6. Vagi-ants may be arrested without warrant. 7. So any person guilty of riotous or indecent behaviour in any church when this or chapel. 8. By the 2 & 3 Vict. c. 47, s. 54, special powers are given i.s justiti- to the metropolitan police to arrest persons committing numerous offences able, of a disorderly kind, enumerated in the Act within the Metropolitan limits. 9. Special powers of arrest are also given by the Merchant Shipping Acts to the masters of passenger ships. (See the 2o & 26 Vict. c. (>;{, s. 37.) 10. A bail whenever he pleases may render his principal into custody. 11. By the Larceny Act, 24 & 25 Vict. c. 96, s. 103, and by the Act relating to the coin. 24 ik*25 Vict. c. 99, s. 31. any person may arrest a person committing an offence against either of these Acts. 12. It is lawful to restrain the liberty of a dangerous lunatic without any warrant or authority, but this can only be done for a short time. The statutes 8 & 9 Vict. c. 100 ; 16 & 17 Vict. c. 96, establish a mode of proceeding with respect to the confinement of lunatics, and any devia- tion from it will render the detention of a lunatic a false imprisonment. 13. Many Acts of I'arliament under which railway companies are incor- • ))oratcd, authorise an officer of the company to arrest any person whose name and residence shall beiniknown, and who shall commit any offence against the Act, and convey him before a justice without any other warrant or authority than that given by the Act. Except in the cases enumerated, and perhaps one or two other, it is not lawful to arrest or imprison with- out a warrant ; thus no one may arrest anothei' for a misdemeanour, as perjury or conspiracy or false pret(!nces, without a warrant. {Matthnvs V. Biddul2)h, 3 M. & G. 390.) 328 FALSE IMPRISONMENT. False im- was given into custody, and authorised and assented to his pnsonment j^eiuff SO o-iven into custody ; and in any case, X. Y., in giving on a charge , . . / . , . , i ■ i of felony, hun uito custody, was acting withni the scope and ni the course of his employment as the defendant's foreman, and for the purposes of the defendant's business. 5. The plaintiff, upon being so given into custody, was taken by the said constable a considerable distance through various streets, on foot, to the Police Station, and he was there detained in a cell till late in the same afternoon, when he was taken to the Police Court, and the charge against him was heard before the magistrate then sitting there, and was dismissed. G . In consequence of being so given into custody, the plaintiff suffered annoyance and disgrace, and loss of time and wages, and loss of credit and reputation, and was thereby unable to obtain any employment or earn any wages for three months. The plaintiff' claims £ damages. Statement of Defence. Defence. !• ^^^^ defendant denies that he was present at the time when the plaintiff was given into custody, or that he in any way authorised or assented to his being given into custody. And the said X. Y., in giving the plaintiff into custody, did not act within the scope or in the course of his employment as the defendant's foreman, or for the purposes of the defendant's business. 2. At some time about five or six o'clock on the , being the evening before the plaintiff was given into custody, a large quantity of paint had been feloniously stolen by some person or persons from a shed upon the defendant's yard and premises. 3. At about 5'30 o'clock on the evening of the the plaintiff, who had left work about half-an-hour previously, was seen coming out of the shed when no one else was in it, although his work lay in a distant part of the yard from, and he had no business in or near, the shed. He was then seen to go to the back of a stack of timber in another part of the yard. Shortly afterwards the paint was found to have been stolen, and it was found concealed at the back of the stack of timber behind which the plaintiff had been seen to go. 4. On the following morning, before the plaintiff was given FALSE IMPRISONMENT. 329 into custody, he was asked by X. Y. what he had been in the False im- shed and behind the stack of timber for, and he denied having piisonment been in either place. X. Y. had reasonable and probable cause of felony, for suspecting and did suspect that plaintiif was the person who had stolen the paint, and thereupon gave him into custody. False Imprisonment on the Defendants Business Premises. 1. The plaintiff is a milliner and dressmaker, and at the time False im- of the grievance hereinafter mentioned was in the defendant's on^(i°efen!"^ employment. dant's 2. The defendant -is a di-aper, carrying on his business at P^'^™^^^-''- Xos. 8 and 9, M. Street, in C. ?>. On the 1st of October, 1875, the defendant falsely accused the plaintiff" of having stolen a number of valuable feathers, and on the said false charge he caused the plaintiff to be imprisoned in a private room in his business premises in M. Street aforesaid. 4. The plaintiff was unlawfully detained and imprisoned therein for several hours, and was not liberated until the defendant found the said feathers. The plaintiff claims : — £100 damages for the said false imprisonment. Action arjainst a Governor of a Gaol for Detaimncj a Person in Custody after the Expiry of his Term of Imprisonment. 1. The plaintiff was and is a solicitor residing at . Against the 2. The defendant is the governor of the Gaol, in f'^craoHo/' the county of . detaining 3. On the day of , 1 ST— , the ])laintiff was aiTested i'Jtefthe <')n a writ of attachment for non-payment of money, and on that expiry day was committed to the custody (^f the defendant. 4. He remained in such custody until , 187 — , when by force of the statute in that belialf, he became and was entitled to be discharged, and could not by law Ije detained in custody iiny longer, as the defendant had notice. 5. There was then no other detainer against the plaintiff to cfiuse him to be detained longer in custody, as the defendant well knew. 6. The plaintiff on the day of , 18 — , gave notice of his sentence. 8.30 FEEOCIOUS ANIMALS. Against governor c ix gaol for detaining plaintiff after the expiry of his sentence. in \\ritino; to the tlcfeiidant, and demanded his dischareje from custody, but the defendant wrongfuUj and mahciously kept and detained the plaintiff" in custody and imprisoned him until , when the plaintiff' obtained his discharge by an order of the judge. 7. In consequence of the premises the plaintiff" was greatly injm*ed and snff"ered in his health, and was put to expense in applying to the Court to obtain his discharge, and was other- Avise damnified. The plaintiff' claims £500 as damages. Claim for personal injuries caused by a savage dog. The gist of the action the keep- ing "with knowledge of the ferocity. What amounts to such know- ledge. Ferocious Animals («). Action for Injur i/ done hij Bite of a Ferocious Dog. 1. The plaintiff is a post-office letter-carrier. The defendant is the landlord of the Pump Inn, at B., in the county of . («) The owner of an animal which is ordinarily vicious, as a lion or a bear, is liable generally for its acts of ferocity, for he is bound to keep it secure at his peril ; but the owner of a domestic animal, as an ox or a dog, is only liable if he knows that the animal is accustomed to do mis- chief. {I{. V. Ilvgtjinx, 2 Ld. Raym. 1583.) The gist of the action is not the negligent keeping, but the keeping at all with knowledge of the mischievous propensity. (May v. Burdett, 9 Q. B. 101 ; Jaehson \. Smithson, 15 M. & W. 5(33.) The essential ingredients in an action against the owner of a dog or other domestic animal which has injured a man or woman, are — 1 . that the defendant knew the animal was vicious ; 2. that after this knowledge he continued to keep the animal ; and 3. that it inflicted an injury upon the plaintiff. Knowledge of the vicious nature of the animal need not be brought home to the defendant l)ersonally ; knowledge by a servant who has charge of the dog is enough {Baldirin v. CaseUa,\. R. 7 Ex. 325 ; Applehee v. Percy, L. R. 9 C. P. (547 ; Glad man v. Johnson,, L. J. 36 C. P. 153) ; and as to the extent of the defendant's knowledge of the animal's viciousness it need not be shown that he knew the animal had actually bitten anyone before. It is sufficient if it has evinced a savage disjjosition, as by flying at anyone and attempting to bite. {Worth^Y. GiUhiy, L. R. 2 C. P. I.) The fact that the defendant has warned another to beware of the dog is evidence that he knew it had a vicious disposition. {Judge v. Cox, 1 Stark. 285.> The defendant is liable though the animal is not really his property, if he knowingly harbours it on his premises ; but where a defendant had done all that was reasonable to get rid of a stray dog which had come on to his- premises, he was held not liable for an injury done by it. {Smith v. Great Eastern BaM. Co., L. R. 2 C. P. 4.) A person who keeps a vicious animal about his premises, except for the purpose of protecting his pro- perty, which he is entitled to do {Brock v. Copeland, 1 Esp. 203), is responsible though he has taken every precaution, as he fancies, to pre- vent its escaping and doing mischief. {Jones v. Perry, 2 Esp. 482.) FEROCIOUS ANIMALS. 2. Diu-iiig the month of August, 1877, the defendant kept a claim for certain mastiff dog in and about his said inn. 3. The said mastiff dog was of a fierce and mischievous nature, as the defendant well knew. 4. On or about the 15th of August, 1877, and while the defendant kept the said dog with the knowledge aforesaid of its fierce and mischievous nature, the plaintiff had occasion in the course of his duty to come on to the defendant's premises, where- upon he was attacked and severely bitten by the said dog. 5. In consequence of the bite and injuries received the plaintiff [here state the damage']. The plaintiff claims £')0 damages. personal , iu juries caused by a savage dog. kStateriU'nt of Defence. 1. The defendant is not the owner of the mastiff dog men- Defence. tioned in the 2nd paragi'aph of the plaintiff's statement of claim, nor did he dm'ing the month of August, 1877, or ever keep the said dog on his premises. 2. The said dog is not of a fierce and mischievous nature. 3. If the said dog be of a fierce and mischievous nature, the defendant says that at the time of the gxievance complained of in the statement of claim he was not aware of the fact. 4. The defendant denies the allegations contained in the 4th paragraph of the statement of claim. f). The defendant further says that if the occuiTcnce men- tioned in the 4th paragraph ever took place, the plaintiff at the time Avas a trespasser upon the defendant's premises. (>. The defendant does not admit the allegations contained in the 5th paragi'aph of the statement of claim. Action for Injury done to Sheej) hj a Dog. 1. The plaintiff and the defendant were at the time of the Though a man cannot recover damages for an injury done to himself by a ferocious dog, unless he can prove that its master knew of its ferocity, the owner of sheep or cattle can recover for any injury done to his sheep and cattle (including in this term, horses and mares, and per- haps pigs), without averring or proving any such .scienter, as it is phrased. This is provided by the 28 k. 2!) Vict. c. GO, to which the pleader is referred. Claim for injury done to sheep by a savage dog. Owner of sheep or cattle can recover fm- injury done to them without proof of scienter. S82 FRAUD. Claim for injury done to sliecp by a savage ♦log. •iTievancc liereinafter mentioned tenant farmers, occupying" adjoining- farms at C, in the comity of . 2. During the night of the 1st of May, 187G, a dog which was kept by the defendant upon his premises broke on to the plaintiff's land and made an attack upon a flock of the plain- titt"s sheep and lambs which were therein. 3. Several of the said sheep and lambs were worried and much injured by the defendant's dog, and in consequence the l^laintitt' has suffered considerable loss. The plaintiff claims £'dO damages. What amounts to fraud. Fraudulen misrepre- sentation of an agent. Fraud («)• See Misrep-esentation. For Precedents of Defences and Rej)lies on the Ground of Fraud, seepp- 106, 335, 343, 391, 564—5, 584, 642—3. (fl) The defence of fraud is available vfliere there has been some con- cealment or deception practised by the plaintiff with respect to the very transaction in question. Where a fraudulent representation constitutes the alleged fraud it must be on a matter which, in the case of simple contract, was substantially the consideration for the agreement. {MalUt- licu V. Hodgson. 20 L. J. Q. B. 339 ; Panama, <')-6'., Mail Co. v. Kemiedij, L. R. 2 Q. B. 580.) If the plaintiff has represented that a certain fact or state of things exists, knowing nothing on the subject, and such a fact or state of things does not exist, this will vitiate the agreement. {Behn v. Burni'ss, 32 L. J. Q. B. 204 ; Emm v. Edmonds. 22 L. J. C. P. 211.) A vendee of a term, represented that wanted it for a respectable person, and it turning out that such person was not respectable, it was held that this was a good defence to an action for not delivering posses- sion. {Canliavt. v. liarry, 24 L.J. C. P. 100.) Fraud may consist in allowing a person to continue under a mistake affecting his estimate of the value of the property. {IliU v. Gray, 1 Stark. 434.) But mere concealment by the plaintiff of a defect in a chattel will not avoid a contract where a person is under no obligation to disclose it. (Smith v. ' Iliu/Jies. L. K. G Q. B. 597.) If the maker of a chattel makes it with sucii a defect as to render it worthless, but the defect is patent, and the person for whom it is made have an opportunity of inspecting it before it is delivered, the maker is not guilty of a fraud if he do not point out the defect. (Ilorsefall v. Tlioma.s, 31 L. J. Ex. 322 ; but seejjer Cock- burn, in Smith v." Ifiiffhcs, vhi .wpva, G05.) Knowingly permitting a person to remain under a misrepresentation made by a stranger will vitiate the contract. {Pilmorc v. Hood, 5 N. C. 97.) Fraud on the part of an agent in the course of his principal's business will, as a general rule, vitiate a contract. [Bcn-n'ich v. English Joint Stock Bank, L. R. 2 Ex. 259, Ex. Ch. ; Machty v. Commercial Bank of New Brunswick, L. R. 5 P. C. 394.) And where the agent knowingly allowed the defendant to purchase a picture under the erroneous belief that it had been in the possession of an eminent collector, the defence of GOODWILL. 333 Freight. See Bills of Lading — Carriers — Cliarterparty. Goods. See Sale of Goods. Goodwill (rt). Action on a contract of Sale of Goodwill, Stock, Lease of Premises, &r. 1. On or about the— — day of , 1877, the defendant Claim for contracted with the plaintiff to purchase from liim fur £475 ^^^'^^^ °^^ ■^ . agreement the goodwill of a tobacco business then carried on l)y the to take and plaintiff at , in the county of , with the fixtures and P^y/°f /^ ' •' goodwill, fittings of the said business, and the lease of the premises. &c. 2. In pursuance of such contract the defendant then paid to the plaintiff the sum of £40 in part payment of the purchase money, and promised to pay the plaintiff on the 25th March fraud to an action by the principal for the price of the picture was sus- tained. {Ilill V. Gray, 1 Stark. 434.) "WTiere, however, the agent in the course of negociations for letting a house to the defendant denied the existence of a nuisance of which he was ignorant, but which the plaintiff (the principal) knew of, the plea of fraud was held not supported. {Cornfoot Y. Fuwhe,() M.. ScVf/dT^S. See Misrepresentation, Guarantee Insurance, Defences in Actions on.) {n) " The goodwill of a business comprises all the advantages that may V)c derived from the purchasers holding themselves out to the public as the persons interested in that business, which has been identified with the name of a particular firm. Therefore, though it is well settled that a sale of a g(jodwill docs n(jt imply a contract on the part (jf the vendor not U> set up again in a similar business, he is not at liberty to hold out to the public that he is continuing the same business by using the name )e charged therewith or some other person thereunto l)y him lawfully authorised. It having been held in numerous cases that written and signed memo- randa, purporting to be guarantees, were of no legal effect, in consequence ■of no consideration appearing either by express words or by necessary in- ference in writing, and from the nature of the contract such considera- tion having rarely appeared, it was, doubtless with a view to prevent Claim on a guarantee for honesty of a ser- vant. Contract of guarantee must be evidenced by writing. 336 GUARANTEE. Claim on a guarantee for honesty of a ser- vant. lint the considera- tion need not appear on the writinc;. The essen- tial charac- teristic of the contract of giiaran- tee. The pro- 7uise must be made to the original creditor. Guarantees given to a firm in- validated by any change in tiie firm. 2. In the month of JMarch, 1872, M. N. was desn'ous of entering into the employment of the plaintiffs as a traveller and the frequent failures of justice arising from the cause just explained, at length enacted by the 1!) & 20 Vict., c. 97, s. 3, that no such promise should be deemed invalid by reason only of the consideration for such, promise not appearing in writing or by necessary inference from a written document. There are some agreements which at first glance present features strongly resembling guarantees, but which do not really possess the essen- tial character of that contract, which is, that there must be a third persoa primarily liable, and then the guarantor promises the creditor that if the debtor will not pay he (the guarantor) will. Therefore, if the promise iS' given in terms implying the acceptance of a sole liability, as where A. says to a ti'ader with regard to goods supplied to B., " I will see you paid," and the price of the goods is charged to A., this is not a guarantee, as would be a promise that if B. did not pay A. woiild. So where the pro- mise involves an extinction of the original debt, or a transfer of it to- the promissor. Thus, where before the partial abolition of imprisonment for tlebt, and when arrest on a ca.sa.. followed by discharge of the debtor from prison, put an end to the claim against him, if a person promised the creditor that he would pay the debt if the debtor were discharged, this was no guarantee, because there was no person primarily liable after the promise was made. {Goodman v. Chase, 1 B. & Aid. 297.) The doc-* trine is very clearly laid down in 3Iovntstcj}Jte/t, v. Lalteman (L. E. 7 Q. B. 19G (Ex. Ch.) affirming L. E. 7 H. L. 17). It is there, moreover, laid down that the fact of the original liability ceasing does not take away its character of a guarantee from the defendant's promise, and that it is sufficient to give it this character if the original or primary debtor continues liable dnrlng any time after the contract is made. The promise must be made to the original creditor. {Eastivood v. Kenyon, 11 Ad. & E. 438; Header v. Xingham, 32 L. J. C. P. 108.) Therefore a promise by A. to a County Court bailiff about to arrest B., a debtor, on a warrant of commitment, that if he would not arrest him he would pay the creditor, or surrender B. on a given day, was held in the last-mentioned case not to be within the statute. The agreement to be answerable for the payment of goods sold by a del credere agent to his customers is not within the above provision, for although it may eventuate in a liability to pay the debt of another, that is not the immediate object of his promise. {C'oiitourier v. Ilastie, H Ex. 40 ; 22 L. J. Ex. 97.) The names of both parties to the contract of guarantee must appear in the note, though the signature of the guarantor only is necessary. ( Wil- liams \. Lake, 29 L. J. Q. B. 1.) Though the consideration can now be shown by i)arol, yet the promise must appear in the instrument without reference to extrinsic facts or arrangements. {Holmes v. Mitchell, 28 L. J. C. P. 301.) By 19 & 20 Vict., c. 97, s. 4, no promise to answer for the debt, default, or miscarriage of another made to a person, or two or more persons, or to one person trading under the name of a firm— and no promise to answer for the debt. &c., of such firm, persons, or person, so trading — shall be binding on the maker in respect of anything done or omitted to be done after a change in any one or more of the firm or persons so trading, unless the intention that the promise shall continue to bind, notwithstanding such change shall appear by express stipulation or by necessary implication from the nature of the firm or otherwise. GUARANTEE. ss: collector, and it was agi-eecl between the plaintiffs and the de- Gruarantee fendants and M. N. that the plaintiffs should employ M. N. conduct of upon the defendants entering into the guarantee hereinafter a servant, mentioned. 3. An agi'eement in writing was accordingly made and entered into on or about the 30th of March, 1872, between the plaintiflfe and the defendants, whereby in consideration that the plaintiffs would employ M. N. as their collector, the defendant agreed that he would be answerable for the due accounting l)y Defences.'] — 1. A denial that there was a binding contract. — Such a defence should state on what ground the validity of the contract was impugned, as that there was no sufficient writing within the (Statute of Frauds, as amended by 19 & 20 Vict. c. 1)7, or that there was no con- sideration for the promise. 2. Concealment of material particulars by the principal (i. c, scmhle the creditor) at the time the contract was made. — The duty of the prin- cipal, (. ^., what he is bound to disclose, is always a question for the jury, subject to the direction of the judge. The duty of the creditor towards a surety in such circumstances is laid down by Lord Campbell, in Hamilton v. Wat-wn (12 CI. & F. 109). He says a surety is only entitled to the disclosure of any arrangement that may exist between the debtor and creditor that may make his position different from what he would reasonably expect ; and hence, if a person undertakes to be responsible for a cash credit given to a customer of a banker, the banker is not bound voluntarily to communicate that the intention is to apply the credit to an old debt due to the banker by the customer. And see North British Insurance Co. v. Lloyd, 10 Ex. 523 ; 2-4 L. J. Ex. 14, in which the Court adhered to Lord Campbell's opinion, and laid down that the rule which prevails in assurances upon ships or lives that all material circumstances known to the assured must be disclosed, though there be no fraud in the concealment, does not extend to the case of guarantee. In the latter case the concealment to vitiate the gttarantee must be fraudulent. 3. Alteration of the position of parties. — Any change by a binding agreement in the relative position of the creditor and a principal debtor, whereVjy the latter is released or the remedy against him sus- pended, or the risk of the surety is varied without his assent, will discharge the surety or guarantor. {Len-is v. Jones, 4 B. & C. .506 and .515 n. ; Cragoe v. Jones, L. R. 8 Ex. 81 ; WilsonY. Lloyd, L. E. 16 Eq. 60.) But if the rights against the surety are reserved, the latter is not discharged. (Bateson v. GosUny, L. R. 7 C. P. 9.) The alteration of the liabilities of the principal debtor by statute has the same effect as by agreement between him and the creditor. (Pybiis v. (Uhh, Cy E. & B. 902 ; 26 L. .J. Q. B. 41.) Kee enactment of 18 & 19 Vict. c. 79, s. 4, cited ante, p. 336. as to effect of change in a firm on liability of guarantor of debts due to or by them. 4. The parting with or loss of any security held by the creditor against the principal debtor, even though the guarantor may not have known of its existence, and though it may have been made or given sub.sequcnt to the contract of guarantee, will discharge the guarantor to the extent of the value of the security. And neglecting to take advantage of a security will have the same effect as its loss in this respect as in the case of a bill of sale which the credi- tor neglects to register or enforce in the event of anticipated insolvency. What the creditor is bound to communi- cate. The effect of cliange in the posi- tion of the debtor or ci'editor. The loss by the creditor of any security. 838 GUARANTEE. Guarantee for good conduct of a servant. M. N, to tlie plaintiffs for, and tlic due payment over by him to tlie plaintiffs of all moneys which he should receive in their behalf as their collector. 4. The plaintiffs employed M. N. as their collector accord- ingly, and he entered upon the duties of such employment, and continued therein down to the 31st of December, 1873. 5. At various times between the 29 th of September and the 25th of December, 1873, M. N. received on behalf of the plain- tiffs, and as their collector, sums of money from debtors of the plaintiffs amounting in the whole to the sum of £950 ; and of this amount M. N. neglected to account for or pay over to the plaintiff smns amounting in the whole to £227, and appro- 13riated the last-mentioned sums to his own use. 6. The defendants have not paid the last-mentioned sums or any part thereof to the plaintiffs. The plaintiffs claim : — Claim in guarantee for pay- ment of ent. Action on Guarantee for Payment of Rent. 1. In or about the mouth of , 1877, the plaintiff was possessed of the messuage and premises No. , in the city of London. 2. One Clara M. then apj^lied to the plaintiff to let to her the said premises, and the plaintiff agreed so to do upon the terms hereinafter mentioned, and upon being guaranteed the due j)ay- ment of the rent for the same. 3. The defendant then requested the plaintiff to let to the said Clara M. the said premises upon the said terms hereinafter mentioned, and upon his entering into a guarantee in the words and figures following, that is to say " Su', — I hereby agree to guarantee the rent of £ on behalf of Miss Clara M. " Yours truly, C. C." 4. Thereupon the defendant signed the said guarantee, and in consideration thereof and of the premises, the plaintiff let the said premises to the said Clara M. on the of , 1877, at the rent of £22 105. a quarter, to hold the same from quarter to quarter until one quarter's notice to quit on either side should be given. 5. The said Clara M. entered into possession of the said premises, and became tenant to the plaintiff on the terms afore- said. GUAKANTEE. 339 6. On the , 1877, the sum of £22 10s. for one quarter's Gruarantec rent became due and payable to the plaintiff fi'om the said Clara ment'^of M. in respect of the said tenancy, and all conditions were ful- i-ent. filled, and all things happened, and all times elapsed necessary to entitle the plaintiff to maintain this action for the same, yet neither the said Clara M. nor the defendant has paid the said £22 10s., and the same remains unpaid. The plaintiff claims : — Statement of Defence. 1. The defendant as to the 3rd paragi-aph of the statement of Defence. ■claim denies that the said alleged guarantee is either legal or TlieStutute & & *= of Frauds. sufficient m law with reference to the Statute of Frauds. 2 (a). Between the 1st and 14th September, 1877, the plain- tiff at the said demised premises committed a series of assaults upon the said Clara M. of so indecent and criminal a character An evic- as to wholly prevent the said Clara M. from enjoying or occupy- *^°°' ing the said premises, and also to amount to an eviction of the said Clara M. therefrom. Actmi on Guarantee given for Rent of Farm and Re-delivery of Stock - 1. The plaintiff is a land-o\^^ler residing at , in the Action on a county of , and is the owner of a farm and lands called "R." IHnlffo^ situate at jM. in the said county. The defendant R. B. is a lent of farmer residing at X., in the aforesaid county, and the defend- i.e!delivery ant C. H. N. is a farmer residing at M., in the county of C. of stock. 2. On or about the 18th day of March, 1873, one G. B. and the defendants by their bond became jointly and severally bound to the plaintiff in the sum of £1000, to be paid by the ■defendants to the plaintiff" subject to a condition thereunder written, whereby after reciting that the plaintiff had agreed to let to the said G. B. from year to year a fiirm and lands called 11., situateatM. aforesaid, and a stock of 700 heath-going sheep . . . and that the said sheep were delivered to the said G, B. on the (rt) A defence to tliis effect was sanctioned by a judge at Chambers. The defence originally contained a series of jiaragraphs, in which several acts of gross indecency were set out in detail. They were all struck out and the above paragraph substituted. 340 GUARANTEE. Guarantee nth day of April, 1873, and consisted of the number, species, farm and '"^^^ quality mentioned in the schedule annexed to the said re-delivery bond. . . . And that it had been agreed that the said G. B. or the defendants should enter into the said bond for the re- delivery of the said sheep or the ottspring thereof in manner therein after expressed, the condition of the bond was declared to be that if the said G. B,, his heirs, executors, administrators, or assigns, did and should at the determination of the said tenancy deliver up unto the plaintifi", his heirs, &c., along with the said farm and premises the like number, species and quality of good and sound sheep as were delivered to the said G. B. as aforesaid, and of the same stock or of the olFspring, breed, or produce thereof, all of which sheep so to be delivered should be and had been regularly going heathed and depastured upon the heaths, fells, pastures, and commons appurtenant to the said farm in like manner as the said stock of sheep delivered to the said G. B. as aforesaid were then heathed and depastured. .... And in case the said stock of sheep should at the deter- mination of the said tenancy be reduced or deteriorated in number, quality, or value, did and should pay to the plaintiff, his heirs, executors, administrators, or assigns, compensation for such deduction or deterioration, to be ascertained by a valua- tion to be made by W. N. and B. 0. oh behalf of the plaintiff, and J. L. and W. E. on behalf of the said G. B., and did and should yearly and every year during the said tenancy, pay or cause to be paid to the plaintiff, his executors, &c., by way of rent or interest for the said sheep the sum of £35 in two equal half-yearly payments on the 12th day of May and 12tli day of November in each year — then the said bond or obligation should be void. 3. The plaintiff let the said farm and lands from year to year to the said G. B., and the said stock of 700 sheep, and the said G. B. entered the said farm and lands and took possession of the said sheep in accordance with the terms of the agreement recited in the said bond, and on the dates therein mentioned. 4. The said tenancy of the said farm and lands was deter- mined on the 28th day of March last. 5. But the said G. B. did not deliver up unto the plaintiff along with the said farm and lands the like number, species, and quality of good and sound sheep as were delivered to the said GUARANTEE. 341 G. B. as aforesaid, or of the same stock, or of the offspring, g;^;^^*« i- A T • 1 setting out stances and not otherwise, that is to say : At the tune when suppres- the negotiations for the said alleged guarantee were first com- ^lonof ° o .-^ material menced, to mt, m the latter part of the month of March, 1877, facts, the plaintiffs were creditors of the firms of K., Sons & Co., and fra^d, &c. H. C. respectively, to amounts very largely exceeding the sums for which the defendants afterwards gave the said alleged guarantee, and the plaintiffs, who had traded "with the said firms for many years, had become possessed of information and acquainted with facts concerning the said firms which tended to and did discredit them and rendered their solvency a matter of grave doubt. The said information and facts were material to be known by the defendants for the purpose of fairly esti- mating the risk proposed by the plaintiffs to them to be taken under the said guarantee. The defendants had then no know- ledge of or acquaintance with the said finns or either of them, nor had they the information, nor were they acquainted with the facts hereinbefore referred to, nor had they the means of acquiring such information or ascertaining such facts, as the plaintiffs then well knew. During such negotiations the plain- tiffs omitted to disclose the said information and facts to the defendants, and unduly and unfairly suppressed the same, and represented to the defendants that the said firms were of un- doubted solvency and had never had their bills renewed, and that the guarantee was required and was to be used solely to enable the plaintiffs to cany out certain arrangements for sup- plying to the said firms larger quantities of goods on credit than they, the plaintiffs, had previously been in the habit of supplying. 2. On the 27th March, 1877, tlie defendants, being then ignorant, as before stated, of the matters as to whicli they 544 GUAEANTEE. Statement of defence setting out suppres- sion of material facts, fraud, &c. charge a suppression against the plaintiffs, and believing the statements so made by the plaintiffs as aforesaid to be true, and relying on their expressed intention to supply further goods to the said firms on credit, agreed to guarantee the bills in the statement of claim mentioned. 3. Within a few days afterwards the defendants discovered (as the facts were) that at the time of the said negotiations the said representations of the plaintiffs were untrue, and that the said firms were not then solvent, one of them having already called, or being about to call, a private meeting of their cre- ditors in consequence of their inabiUty to pay their debts, and the other being on the eve of bankruptcy, and further that the bills of K., Sons & Co. and H. C. had been previously renewed, and that the guarantee had not been required for the purpose for which the plaintiffs represented, the plaintiffs having made no arrangements for supplying and not having supplied any larger or fm'ther quantities of goods on credit to the said firms. 4. The plaintiffs suppressed the matters hereinbefore men- tioned, well knowing (as the facts were) that they were material for the purpose of enabling the defendants to fairly estimate the said risk, and that if they were disclosed the defendants would not enter into the said guarantee, and the plaintiffs made the false representations hereinbefore mentioned well knowing them to be false, and they suppressed the said matters and made the said representations fraudulently with the intention of inducing the defendants to enter into the said guarantee on the faith thereof. 5. Within a reasonable time after discovery of the truth of the matter the defendants repudiated the said guarantee, and offered to return and tendered to the plaintiffs the amount of the premium which had been paid by the plaintiffs in respect thereof. G. After the making of the alleged guarantee, and before the due date of the acceptance of K., Sons & Co. for £586 6s. 10^?. in the said guarantee mentioned, the plaintiffs and the said K., Sons and Co., without the privity or consent of the de- fendants, agreed for a good and valuable consideration in that behalf to the plaintiffs, that the said bill should be renewed or partly renewed at maturity, and the plaintiffs accepted the said agreement in satisfaction and discharge of the liability of the HUSBAND AND WIFE. 34^ said K., Sons & Co. on the said bill ; although (as the defendants Statement . - L n T ■ T 0^ defence are infonned) the said agreement was not afterwards earned getting out out The making of it materially increased the risk of the suppi-es- . sion of defendants under the said guarantee. material facts, fraud, &c. Heir. See Recovery of Land. Hire. See Bailment. Highways. See Nuisance. Husband and Wife [a). Claim by Husband and Wifefm- a Slander upon the Wife. 1. The plaintiff" D. W. is a , and resides at I., in the Byhusband county of W., and the plaintiff" Anne W. is his wife. defendant J. S. is a , and resides at I. aforesaid. The and wife for slaader of wife. (a) Wife stung alone.] — The rule of the common law was that a married woman could not sue alone, a rule which prevailed in ei|uity as well. Even with respect to property settled to a woman for her separate use, over which she is said to have the same control as a fenu; sole has over her property, the law administered on the equity side was that the wife must sue in respect of it not alone but by her next friend ; and this rule still continues. fSuch was the general rule. Ijut upon its rigour the following exceptions had previously to 1870 been gradually grafted : — 1. A married woman can sue alone where her husband is civilly dead, i. e., in prison or penal servitude. 2. Where he is presumed to Ijc dead or to have aljjured the realm. This presumption arises after an absence of seven years, during which nothing has been heard of him. 3. Where the wife is judicially separated from her hus- A married woman might not .sue alone. E.xceptions {,Tafted on this rule before 1870. UG HUSBAND AND WIFE. r.yhusbaiul 2. On the 8th of April, 187-i, while the plaintiff D. W. and forlilndcr defendant were at the " Noel Arms" Hotel, at C, in the county of wife. of Cr., the defendant, in the presence of one E. W. and others. When :i married woman might, he- fore 1870, sue in her own name. Enlarged rights of suing now given to married women. 33&34 Vict. c. 93. What classes of property coming within this Act. band (20 & 21 Vict. c. 85, s. 2G). 4. Where the wife has obtained a protection order under 20 & 21 Vict. c. 85, s. 21. (See Ramsden. v. Jiirarltj/, -ii L. J. Q. B. 4().) In the year 1870 a very considerable change was made in the legal status of married women, and a greatly enlarged ])0wer of suing in her own right and name was conferred upon her. By the 12tli section of the Married Woman's Property Act, 1870 (the 3:? & 84 Vict. c. 93), a woman (married after the coming into opera- tion of that Act, viz., the 9th August, 1870) may maintain an action in her own name — («) for the recovery of any wages, earnings, money, and pro- perty declared by that Act to be her separate property, or for the protection (//) of any property belonging to her before marriage, and which her husband, by writing under his hand, had agreed with her should belong to her after marriage as her separate property. To understand the full effect of this enactment it is necessary to know what " wages, earnings, money, and property " are declared by the Act to be the separate jDroperty of a married woman, in respect of which she may sue alone, and as sect. 12 goes on, " have in her own name the same remedies, both civil aiad criminal, against all persons whomsoever, for the protection and security of such wages, earnings, money, and property, and of any chattels and other property purchased or obtained by means thereof for her own use, as if such wages, earnings, money, chattels, and property belonged to her as an unmarried woman." 1. By sect. 1 of the Act, all the earnings acquired by any married woman since the passing of the Act, in any trade or occupation which she carries on separately from her husband or by means of any literary, artistic, or scientific skill, and all investments of such eariiings, shall be deemed and taken to be property settled to her separate use. 2. Any deposits made by married women after the passing of the Act in savings banks, or any annuities granted by the Commissioners for the Reduction of the National Debt in the names of married women, shall also be deemed to be theii' separate property (s. 2). 3. So. sums not less in amount than £20 in the public funds which a married woman has entered in her name as a married woman entitled to the same for her separate use (s. 3). 4, So, fully paid up shares in any joint-stock company, or friendly or building or industrial society, to which no liability is attached, and to which the woman applying is entitled, may be registered in the books of the company or society in her own name, and then become property settled to her separate use (ss. 4 and 5). 5. All jM'r.sonnl property to which a woman married after the jfossing of the Act shall, in the case of an intestacy, become entitled to as next of kin, is regarded as her separate estate (s. 7). 6. So, any sum of money not exceedinrj £200 coming to any woman married since the passing of the Act hy any deed or ivUl (s. 7). It must be carefully noted that vsdth respect to personal property exceeding £200 in amount and coming to the woman by will or deed, the Act does not apply, and unless by the terms of the will or deed it is given to her for her separate use, it will vest in her husband. 7. So, where any freehold, copyhold, or customary- hold property shall descend upon any woman married after the passing of the Act, as heiress or co-heiress of an inte.ttate. the rents and profits of such property shall belong to such woman for her separate use (s. 8) ; but, as heretofore, if lands come to a married woman by conveyance, devise, or otherwise than by descent, unless separate use is impressed on them by the instrument of conveyance or devise, the old law will remain, and the husband will take the rents and profits. 8. Finally, by HUSBAND AND WIFE. 34^ falsely and maliciously siwke and published of the plaintiff Anne W. the words following, that is to say : " You " (mean- ing the plaintiff D. W.) "would not have had that young one" sect. 10, a married woman may effect a policy of insurance upon her own life or the life of her husband for her separate use, and the contract shall be as valid as if made by an unmarried woman. Since the passing of this Act it has been held that a married woman carrying on a trade apart from her husband could, in her own name, sue her bankers for negligence and for refusing to honour her cheques when they had assets in hand. (See the judgment of Coleridge, C. J., in Summers v. The City Bank, L. E. 9 C. P. 580 ; 43 L. J. C. P. 201.) During the argument in the above case, Brett, J., suggested that a married woman trading separately under the Act might sue for a libel or slander on her in her trade. By Order XYI. r. 8 of the new practice, married women, Inj leave of the Court or a judije, may sue without their husbands or next friend, on giving such security for costs (if any) as the Court may require. In all cases which do not come within the four exceptions enumerated at the commencement of this note, or within the purview of the Married Women's Property Act. 1870. or where the leave of the Court to sue alone has not been obtained, a wife must still join her husband as a plaintiff if she desires to enforce any right or obtain any remedy against another ; but it is said that the wife may sometimes use the name of her husband as a party where his express consent has not been obtained. (See Procter T. Brotherton, 2.S L. J. 11(5, Ex. ; Cliamhers v. Donaltlvm. 9 East, 470.) Effect of divorce of ovife.^ — Of course a woman who has been divorced or has obtained a divorce may sue by herself, but she does not obtain the status of a feme xole by the granting of a decree ?ii-ii. Until the decree is made absolute she is still a married woman, and cannot maintain an action in her own name (Xorman v. VilUirs, 40 L. J. 579) ; but even when the divorce is complete, she cannot maintain an action against her former husband for any acts done by him during the cover- ture. (Phillips V. Banirt, 45 L. J. 277.) llushaiid and irife xuing jolntlji.'] — Though, as stated above, a married woman may not generally sue alone, there are several classes of cases where her husband, suing in respect of a cause of action which has arisen through her, must join her as a plaintiff along with himself. The chief of these cases are : 1, where the husband sues on a contract made with the wife before marriage ; 2, where he is enforcing some right to which she is en- titled as executrix of another ; 3, where he is seeking damages for a tort committed against the person or reputation of his wife either before or during marriage. In this latter case, as where he sues for an injury to his wife by the negligence of another, the husband may add a claim in his own right for any special damage that he may have sustained by the occurrence. Again, there are cases where a husband suing in respect of a cause of action arising through his wife viay but is not compelled to join his wife as a plaintiff. These cases are : 1, where he claims for an injury done during coverture to his wife's real property ; 2, where he sues on contrac;ts made by his wife durinij marriage ; 3, where he sues on nego- tiable instruments given to his wife before marriage. Effect of death of wife or husband.'] — In all cases where the wife mu.st be joined with the husband when the latter sues (see supra), the effect of the death of the husband is. that the right of action survives to the wife ; the effect of tlie death of the wife is. that the right of action survives to her administrator, who ^vill usually be her husband, except in the case where tlie right of action was in virtue of her position a.s the executrix or administratrix of another. In that case the right of action would By husband and wife for slander of wife. The rights of a married woman to sue alone. Resume of the law. The status of a di- vorced woman. Cases where a husband must join his wife as a plaintiff. Cases where he may do so. Effect of death of husband or wife. }48 HUSBAND AND WIFE. Byhusbaiul (mcaniiiG; a child of the i->laintiff" D. W. by his wife) " had you for sliiuder ^^'-^^ ^^'"^^ somc neighbours," meaning thereby that the said plain- o£ wife. tiff D. W. was not the father of the said child of the plaintiff A maiTied woiuau cannot be .sued alone, even witli respect to lier sepa- rate estate. Nor in cases under the 33 & 34 Vict, c. 93. Exceptions to the rule that the husband must be joined with the wife when the latter is sued. Liability of a. husband for con- tracts and torts of his wife before maiTiage. Distinc- tions based on the date ■of the marriage. During pass away to the representatives of the deceased testator or intestate. The same rule holds with regard to contracts made by the wife during marriage. As will be presently seen, she is not liable on them in the life- time of her husband, nor even after his death, but she can sue upon them when he is dead. WIioi a married ivoman can he siinl.^ — It may be stated as a general rule, that a married woman cannot be sued alone. It makes no difference whether lier liability arises out of contract or tort, or in respect of matters occurring before her marriage, or during the marriage : nor does it make any difference that the wife is only sued in a representative character as an executrix. This rule prevailed in the old Courts of Equity as well as at law. Therefore where a woman had property settled to her separate use. she could not be sued, even with respect to it, without her husband being joined as a party ; and it has been recently decided on demurrer that the Married Women's Property Act, 1870 (the i^3 & 34 Vict. c. 93). has made no difference in the law on this jwint. {Hancock v. LabJachc, 26 W. E. 402.) But though the husband must be joined where it is sought to charge a married woman's separate estate, it is not necessary that the trustees of the settlement should be joined. {Daric.i v. Jcnhinx, L. E. (! Ch. Div. 728.) To the general rule that a husband must be joined with his wife when the latter is sued, there are the following exceptions : — 1. Where the husband is civilly dead, /. c, in jtenal servitude or prison. 2. Where the husband is presumed to be dead, ?'. c, has been out of the country for seven years, and not heard of during that time. 3. Where husband and wife are judicially separated. 4. Where the wife has obtained a protec- tion order under the 20 & 21 Vict. c. 85, s. 21. 5. Where the husband is an alien enemy. 6. By Order XVI. r. 8, provision is also made for a married woman, hij leave of the Court or a judge, defending without her husband, and without a next friend, on giving such security (if any) for costs as the Court or a judge may require. Coming next to the question when a husband is liable for the debts and torts of his wife, and who are the proper parties to be joined, a distinction must be drawn between liability arising in respect of the debts contracted and torts committed of the wife before marriage and those of the wife during marriage. Torts and contractt; of wife before marriage.'] — Owing to several changes made in the law during the last eight years, further distinctions must be made here, based upon the date of the marriage of the parties: a. If the husband sued in respect of the debt or tort of his wife was married before the 9th of August, 1870, he is personally liable for such in an action in which both husband and wife are joined as defendants. h. If the parties were married after the 9th of August, 1870, but before the 30th July, 1874, this further distinction must be made. The husband is not liable for the debts of his wife contracted Ijefore marriage, and this though he may have leceived property with her, but he is liable in an action in which husband and wife are both defendants, for her breaches of contract and her torts. (See the 33 & 34 Vict. c. 93, s. 12, and Griffith's Married Women's Property Acts, 4th ed. p. .55.) c. If the par- ties were married after the 30th of July, 1874, the husband is only liable, whether for the debts, the breaches of contract, or the torts of his wife, to the extent of any assets which he may have received with her at marriage, or which coming to him in right of his wife, he might by reasonable diligence have reduced into possession. (See the 37 & 38 Vict. c. 50.) Contracts and torts of the wife during marriage.'] — Dm-ing coverture a HUSBAND AND WIFE. 349 Anne "W., but that a neighbour of the plaintiff D. W. was Byhusband the father, and that the plaintiff Anne W. had committed T'^ f^^., -, lor slander adultery. of wife. 3. In consequence of the speaking and publication of the married woman cannot contract so as to bind herself personally ; but if she has property settled to her separate use or property which comes under any of the denominations declared by the Married Women's Pro- perty Act, 1870, to be property which she shall be entitled to hold to her separate use (see ante, p. 34()), she may contract vnth. reference to such separate property, and so bind it and free her husband from liability. (See Johnson v. Gcillaghcf, 30 L. J. Ch. 298). But on this subject it must be borne in mind that where a married woman having separate estate is living with her husband it is much more ditHcult to prove that a general engagement entered into by her is made with reference to her separate estate than when she is living apart from her husband (per Turner. L. J., in same case). Where, however, a married woman is living separate from her husband, and has separate estate, and then contracts debts, the Court is bound to impute to her the intention to deal with her separate estate, unless the contrary is proved. (Ibid.) Subject to the question whether in a particular case a married woman having separate estate intended to bind the latter, the general rule is, as stated, that a married woman cannot by contract bind herself, but. she may bind her husband. Where, however, she binds her husband it is on the principle that in the particular transaction she acted as his agent merely, and it follows from this that the vidfe is not made a jiarty to the action : the husband alone is sued. It is otherwise vrith respect to the torts com- mitted by a wife during coverture. Her husband is liable, so is she ; and the consequence is, they are both joined as defendants in the action, though of course execution is had against the husband. Coming back to the question how far a wife can bind her husband by contracts made during coverture, it is a general rule that a man's wife living with him is jrrimd facie presumed to have authority to make con- tracts such as a wife in her position of life usually makes, or, as it is fre- ([uently put, she may bind her husband by a purchase of necessaries, the latter word being a relative term having regard to the station in life of the husband. {Montaijn v. Benedict, 3 B. & C. 631 ; Scaton v. Benedict, '■> Bing. 28, and the notes to Manby v. Scott, in 2 Smith L. Cas. 7th ed. 479). This presumption of the husband's liability in the case stated is, however, a rebuttable presumption, and where it can be shown that the husband had forbidden the wife to pledge his credit, even though the plaintiff had no notice of the prohibition, the presumption is rebutted, and the husband is free from liability. See Jolhj v. Bee,; lo C. B. N. S. 628 ; 33 L. J. C. P. 177, a casewhicli, though sometimes called in ([uestion, has frequently of late l)cen acted upon. Where, however, a married woman lives ajjart from her husband (reference is not now made to judicial separation, or desertion, cases that admit of quite different considerations) there is, except in one case, no presumption that she has authority to bind him even for neces- saries. (Per Abbott, C. J., in Muimmrlnfj v. Ledir, 1 M. & M. 18.) The excepted case is where a married woman, not having any ader)uate maintenance of her own, lives apart from her husband, cither witli liis consent or under compulsion, on account of his misconduct. In such a case she has a rif/ht to bind her husband for necessaries, unless she is living in adultery. {Ati/kn.-i v. Pearce, 2G L. J. 252, C. P.) Although where a wife is living apart from her husband there is no presumption in the first instance of his liability for her contracts, still the plairitifl: may," if he can, show that the wife had express authority to bind her husband, or coverture a married woman cannot contract so as to bind her- self per- sonally. But she may some- times bind her sepa- rate estate. She may bind her husl)and in contract. And her husband and self in toH. Greneral rule as to extent to which a married woman may bind her hus- band by contracts. 350 HUSBAND AND WIFE. Byluisl>aml aforcsaid words the plaintiff Anne W. was injured in her for slander character and reputation, and lost the hospitality of several of wife. iriends, namely, T. S., then the Avife of W. S., of S., in the jiarish of 0. S., in the county of "W. (but now deceased), S. P., the wife of W. P., of C. S., in the parish of I. aforesaid, the said ^\. P., and others her relations and friends. 4. At the time and place above-mentioned, the defendant J. S. assaulted and beat the plaintiff 1). W., and struck him several times. The plaintiff claims : — (1.) £500 for the said slander. (2.) £100 for the said assault. Statement of Defence. Defence. 1. The defendant denies that he spoke and published the alleged words, and denies that he spoke and published any such words as alleged in the presence of E. W. or of any other per- son, and denies the alleged meaning. 2. The defendant denies each and every the allegations con- tained in the 3rd paragraph of the statement of claim. 3. The plaintiff at the time and place mentioned in the state- ment of defence first assaulted and beat and struck the de- fendant, whereupon the defendant necessarily in his own de- fence, and using no more violence than was necessary, struck the plaintiff, which is the grievance complained of. that from the circumstances of the sepai-ation or the misconduct of the husband such authority is to be implied. Effect of Effect of death of n-lfc or hiiKband.'] — \J])on the death of her husband death of ^'i® vfiia will remain liable for all torts committed by her during or husband before marriage {Wright v. Leonard, 'M li. J. C. P. 8(j7), except torts or wife. ^^"^^^ ^^^ based upon contract, and may be sued for as such. On the death of the wife any liability for her torts survives, if at all, against her executors and administrators ; by her death her husband is freed from liability. There is a distinction as to the liability of a wife upon the death of her husband for contracts made by her before marriage and contracts made during marriage. She remains liable for contracts made before marriage, but for contracts made by the wife during marriage, (putting out of account the cases already adverted to where a wife has pledged the credit of her separate estate), the wife was not liable to be sued during the life of her husband, and liis death does not give birth to a liability that did not exist before. Where the wife dies before her hus- band, for all the torts of the wife before or after marriage, af well as for her contracts made before marriage, her executors and administrators remain liable. HUSBAND AND WIFE. 351 Action hfj HusMnd and Wife for Personal Injuries to the Wife. 1. The male plaintiff resides at . The female plaintiff By husband and wife is his Wife. for injuries 2. The defendants are carriers carrying on business in the to wife. <'ity of London. 3_ On the of 1877, the female plaintiff was law- fully crossing C.-street, in the city of L., when a van driven by one of the defendants' servants was driven violently against and knocked down the female plaintiff". 4, The said collision was caused by the negligence of the defendants' servant, who was at the time drunk and incapable, and who did not exercise proper care m the management of the horse and van. 5, By reason of the negligence of the defendants' servants in the preceding paragraphs mentioned, the female plaintiff was severely injured and suffered great pain, and was for a long space of time prevented from attending to her household duties. 6, By reason also of the facts in the 3rd and 4th paragraphs mentioned, the male plaintiff was deprived of the society and comfort of his said wife, and incuiTed expense for nm-sing and medical attendance, and advice, and other necessaries. The plaintiffs claim : — (1.) In respect of the personal injury to the female plaintiff, £100 damages. (2.) In respect of the loss and damages sustained by the male plaintiff £50. Statement of Defence. 1. The defendants deny that their servant carelessly, negli- _gently, and unskilfully drove and managed a horse and van belonging to them. 2. Their servant was not drunk and incapable as alleged in the 4th paragraph. 3. The defendants deny that by reason of any negligence of their servant the female plaintiff was severely injured and suffered great pain, and was prevented from attending to her household duties. 352 HUSBAND AND WIFE. Byliusbaud 4, The (Icrcndauts deny the matters alleged in Gtli paragraph for injuries of the Statement of claim. to wile. Action against Hushand and Wife to cMrge Wife^s seimrate Property in respect of the Wife's Debt. Against husband and wife to charge wife's sepa- rate estate. 1. The plaintiff is a linendraper, &c., canying on business at 2. The defendant Annie T. was, at the dates mentioned in the indorsement on the writ of summons herein, and is the wife of the defendant P. T., and entitled to property settled to her separate use. 3. The plaintiff on the faith of such separate property sold and delivered to the defendant Annie T., and the said defendant, on the credit of and with the intent to charge her said separate property, brought and accepted of the plaintiff goods to the amount of £94 in and between the dates specified in the in- dorsement on' the wiit herein, particulars whereof have ah^eady been furnished to the said defendant. 4. The plaintiff gives the said defendant credit for the sum of £45 as stated in the said indorsement on the writ, thus leaving a balance of £48 still due and owing to the plaintiff by the said defendant. 5. The defendant had and stiU has separate property more than sufficient to pay the said balance of £48. The plaintiff claims : — I. A declaration that the separate property of the said de- fendant is liable for the payment of — (1.) The said balance of £48. (2.) Interest on the said balance from date of the writ till judgment. (3.) The costs of this action, II. Payment of the said balance of £48, interest and costs as aforesaid, or if possession of sufficient property is not admitted 1)y the said defendant, that for the purpose of executing the declaration above prayed for, this action may be transferred to the Chancery Division of the High Court of Justice, in order that all proper inquiries and ac- counts relating to the said separate property may be taken. III. Such further and other rehef, &c. HUSBAND AND WIFE. 353 Statement of Defence. 1. As to the 3rd paragraph of the statement of clahn, the Against •defendants, while admitting the purchase, acceptance, receipt |^*^^fg and price of the goods therein mentioned as matters of fact, to charge deny that the plaintiff sold or delivered the said goods to the J'ate'esSte' defendant Mrs. Annie T. on the faith of her separate property, ■or that she bought or accepted them on the credit of or with the intent to charge her said separate property. On the con- trary, the defendants say that the defendant Mrs. Annie T. bought and accepted the said goods solely as the agent and on the credit of the defendant P. T. 2. Eeferring fui'ther to the said 3rd paragraph, the defen- dants also say that the said separate property of the defendant Mrs. Annie T. consists of rents arising from real estate in which she possesses a life interest. By the terms of the instrument under which she takes such interest, Mrs. Annie T. is during coverture entitled to receive the rents, issues, and profits of the said real estate at certain fixed tunes in each year, and by way of income only, and is disabled from disposing of any por- tion of the said rents and income by way of anticipation. 3. Referring to the 4th paragraph of the statement of claim, the defendants deny that any balance is owing to the plaintiif from the said defendant Mrs. Annie T. as therein alleged, or at all. 4. Further referring to the said 4th paragraph, the defen- dants deny tliat the said defendant ]\Irs. Annie T. had or still has in her possession any separate property available for the payment of the said balance as therein alleged. Claim ayaimt a Husband upon a Promissory Note given hij his Wife before Marriage, and Defence of Married Woman's Property Act, 1874. 1. Previous to the 2Gth July, 1873, the plaintiff, who is a Against a farmer in N., sold a quantity of lambs to the defendant J. F. Ji"s''aml and the defendant Sarah, who was then unmarried, or to one of on a pro- them. missory 2. At that time the name of the defendant Sarah was i,y the wife Sarah D. 'jefoi-e 3. On the 20th July, 1873, the defendant J. F. and the A A iiiaiiiajrc. 354 HUSBAND AND WIFE. Against defendant Sarah gave the plaintiff, in payment of or on account husbaml ^f (^jj^, pj-jee of the said lambs, a iiromissory note of which the fol- anJ wife ^ ^ I J on a pro- lowing is a copy : — missoiy a y^Q hereby promise to pay to George Lowes or order, on de- uotc signed '' ^ ^ •' ° ' i)y tlie wife mand, two hundred and fifty pounds sterling, with legal interest before r^^ ^i^Q j.r^te of five iier cent, per annum, marriase. " Dated this 26th day of July, 1873. " J. F. "S. D." 4. On the 6th August, LS7-1-, the defendant Sarah married the defendant J. J. 5. The defendants have not paid the said promissory note nor the price of tlie said lambs, and at the date of the issuing' of the said writ herein there was due and owing on the said promissory note for principal and interest the sum of £259' 12s. 2d. G. The plaintiff claims the said sum of £251) 12s. 2d., and interest on the principal sum of £250 from the date of the said ■v\Tit until payment. Staiement of Defence of the Hvshand J. J. Defence of the Married Women's Property Act, 1874. 1. The said defendant J. J. says that he and the said Sarab were man-ied after the passing and coming into force of " The- Manied Woman's Property Act 1870 Amendment Act, 1874," 2. According to the true intent and meaning of the said Act the defendant J. J. is not liable to pay the debts claimed in this action, inasmuch as the assets of the said Sarah within the true intent and meaning of the said statute at the time of the said man'iage, and in respect of and to the extent of which he was or is liable to pay debts contracted by or damages recover- able from the said Sarah before her said mamage, amounted to- a small sum of money only, and the said defendant J. J. after his maiTiage with the said Sarah his wife, and before- action, paid the debts of his said Anfe due at the time of the- maiTiage to an extent exceeding the said amount of the said assets. 3. At the conunencement of this suit the said defendant J. J., had not nor has he ever had assets within the true intent and meaning of the said statute, in respect of which he was liable to- pay the said debts in the said statement of claim mentioned, or ILLEGALITY. 355 any part thereof, and for the reasons aforesaid he is not liable to satisfy the plaintiff's claim, or any part thereof. Action against Hiisland and Wife for a Lihel jnihlished hy the Wifi. 1. The plaintiff is . The defendant J. M. is , and the defendant Maiy is his wife. 2. On the 1st of ^lay, 1875, the defendant Mary falsely and maliciously wrote and puljlished of and concerning the plaintiff the words foUo^ing, that is to say [here follows the alleged hbel- lous matter], meaning thereby [insert the defamatory inference]. The plaintiff claims against the defendants £500 damages. Against husband and wife on a pro- missory note. Against husband and wife for libel published by the wife. Illegality («). {See forms of Defence on the ground of Illegality pp. 182, 279.) {a) No action can be brought on a promise to do an illegal act or an act with an illegal object ; nor can an action be brought on a promise made for an illegal consideration, or on a promise made for a considera- tion consisting of several parts, any one of which is illegal. {Ilajgins v. Pitt, 4 Ex. 312 ; Hill v. Fox, 4 H."&: N. 359.) But where the considera- tion is legal, and several promises are founded on it, some of which are legal and others illegal, the legal ones can be enforced. The test for determining whether a person is precluded from recovering on account of illegality, is by considering whether the plaintiff can make out his case otherwise than tkrough the medium of the illegal transaction to which he was himself a party. {Taylor v. CJiester, L. R. 4 Q. B. 30^, 314.) A plain- tiflf will not be able to recover either for work done or materials provided where the whole fonns one entire subject-matter made in violation of an Act of Parliament. (Bcnslcy v. Bxgnold, .5 B. & A. 335.) Thus a printer will not be able to recover from the publisher his charges for work and paper, &c., in the printing of a libellous or blasphemous book. {Poplett v. Storhlalr, Ry. & M. 337 ; Chiy v. Yates, 25 L. J. Ex. 237). An under- taking by a railway company to indemnify the promoters of another railway in case of their failing to obtain a bill is illegal, as there is no authority to expend any of its funds in such a manner. {Macyn-yor v. Deal a nd Dover Du ibvay Co., 22 L. J. Q. B. G9, Ex. Ch.) But an agreement with a landowner for a payment in consideration of his witluli'awing opposition to a bill for extension of powers is not illegal. {Taylor v. Cldchxter and MidJivrst llailway Co., L. R. 4 H. Ij. 028). A Londdn broker cannot maintain an action for commission for buying and selling stock, &c., unless duly licensed by the mayor and aldcrmcii of London under (5 Ann. c. 16 {Cojw v. liowlunda, 2 M. &; W. 14!») ; nor for sale of shares in a company, British or foreign (Smith v. Luido, 27 L. J. C. 1*. 335), but he may recover money paid by him to a seller on account of his {)rincipal for which the broker is by usage liable as principal. (lb.) Money lent for the purpose of playing an illegal game cannot be re- covered {McKijuull V. Itohinson, 3 M. & W. 434) ; Ijut money paid at the implied request of the principal in fulfilment of a wagering contract may A A 2 No action can be brought on a pro- mise to do an illegal act, or where the considera- tion is illegal. 356 IMMORAL CONSIDERATION. Defence of immorality to action on a deed. Illegal contracts Defence of Illegality to be sjiecially pleaded. When contracts founded on an im- moral con- sideration they can- not be re- covered on. Immoral Consideration {n). Sfalcme/it of Dcfeiwe io Annuitij Deed. 1. The defendant says that at the time of tlic execution of the deed referred to in the paragraph of the statement of claim the said M. L. L. was a married woman, and was co- be recovered back. {RoKctrarw v. lilUinfj, 33 L. J. C. P. 55.) A bond given to secure payment of a racing debt is void. See as to wagers 23 & 24 Vict. c. 28. repealing Sir John Barnards' Act as to wagers. Letting for Uh'rjiil puvjjosc.'] — An agreement to let rooms intended for the purpose of delivering blasphemous lectures is not binding, and a landlord, though he assigned another ground for refusing to perform his contract, can set up this defence. {Cowan v. ililburn,!^. R. 2 Ex. 230.) See infra as to letting for immoral purposes. Contract)i m^de on Sunday.'] — By 2!J Car. 2, c. 7, s. 1. " No tradesman, artiiicer, workman, labourer, or other person whatsoever shall do or exercise any worldly labour, business, or work of their ordinary callings upon the Lord's-day or any part thereof, works of necessitj- and charity only excepted." The contract must be completed on the Sunday to bring it within this provision. {Williams v. Paid, 6 Bing. 653 ; Bloxsonw v. Wdlianis, 3 B. & C. 232.) Contracts ifi restraint of trade.'] — Contracts in general restraint of trade are illegal. See for further information on this subject notes to Mitckcl v. Reynolds, 1 Smith L. Cas. 7th ed. 406. The defence of illegality should, even formerly, have been specially pleaded, and it was not sufficient to state merely that the contract was illegal, but the particular facts should be stated from which the illegality as a matter of hi.w could be inferred. (JRansford v. Cojjcland, 6 A. & E. 482.) This is in conformity with the present rules of pleading. Whei'e the defence is not pleaded, and the illegality appears in the plaintiff's evidence, it seems no use can be made of it by the defendant. {Fcnn-iek V. Layoock, 1 Q. B. 414.) But, qiiwre, could a jvidge give judgment for a plaintiff after his knowledge was directed to the illegality P He would probably be not unwilling to allow the pleadings to be amended under such circumstances. (a) Any person who is a party to an immoral contract, or a contract involving encouragement to immorality, cannot recover damages for its breach. Thus, charges for board and lodgings by a brothel-keeper can- not be recovered by him in an action against a prostitute. (Ilon-ard V. Hodges, 1 Selw. N. Prius, 13th ed. 80.) So, for rent of a room let to a prostitute with knowledge of her character, and that it was to be used for the purpose of prostitution, or for rent accrued due after becoming aware of the purpose for which it was taken. {SuUtk v. White, L. R. 1 Eq. 626.) So, the hire for a brougham supplied to a prostitute with a knowledge of her character, and that it was to be used by her for the purpose of attracting men. {Pearcev. Brooks, L. R. 1 Ex. 213.) It is not necessary in order to preclude persons letting or selling to prosti- tutes fi'om recovering rent, hire, or price that the plaintiff should have looked expressly to the proceeds of prostitution for payment. (Id.) But a person selling goods to a prostitute not evidently purchased to enable her to carry on prostitution, is not precluded from recovering the price. (Bon-ry v. Bcnnet, 1 Camp. 348.) So, where the plaintiff has been employed to wash clothes, consisting principally of expensive dresses, for a prostitute, knowing her to be such. (Lloyd y. Johnson, 1 B. & P. 430.) So, a person letting rooms, not knowing they were to be used for the purpose of prostitution. (Smith v. White, siqjra.) INFANCY. 357 habiting with the defendant, and it was intended that snch cohabitation should continue, and that the defendant and the said M. L. L. should, after the execution of the said deed, im- morally continue to commit adultery. 2. And the defendant says that the defendant was induced to execute the said deed in consideration and by reason of a contemplated and anticipated continuance of such adultery, and the same was the only consideration for such deed. Defence of immorality to action on a deed. Infancy («). Statement of Defence to an Action against an Infant. The defendant at the time of making the alleged i-»romise Defence of in the statement of claim mentioned was under the age of twenty-one years. infancy to action on a contract. A bond or agreement given in consideration of future illicit cohabita- tion is illegal, but a bond or deed for payment by way of provision after jHist cohaijitation is valid {Nije v. Moxchj, (! B. & C. IH:^) ; though a simple contract founded thereon is not, as there is no consideration. (Jiinnhiffto)t v. Walli.^, 4 B. & Aid. «50 ; Braumimt v. Heeve, 8 Q. B. 483.) It is necessary in setting up a defence of immorality to state the facts on which the allegation of immorality is founded, in the same manner as in cases of illegality of which it is a species. (a) By Order XVI. r. 8, " . . . Infants . . . may sue as plaintiffs by their next friends in the manner practised in the Court of Chancery before the passing of this Act ; and infants may in like manner defend any action by their guardians appointed for that purpose." The question of the liability of infants is now mainly regulated by the ;]7 & 38 Vict. c. ()2 (1874). The 1st section provides that " all contracts whether by specialty or sim])lc contract henceforth entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries), and all accounts stated with infants, shall be absolutely void, provided always that this enact- ment shall not invalidate any contract into which an infant may by any existing or future statute, or by the rules of common law or equity, enter, except such as now by law are voidable." And 1)y sect. 2, " no action shall be brought whereby to charge any person upon any pi'omise made after full age to pay any (lcl)t contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, where there shall not be any new consideration for such promise or ratification after full age. It will be seen that the first section of this Act excepts " necessaries," which are generally defined to be food, diink, apparel, lodging, and education ; but much would dejiend on the fortune and pusition of the infant, and i)roof of such fortune, &c., lies on the plainliif. {Jfydrr v. Wonih/rrl/, L. 11. 4 Ex. 32, Ex. Ch., reversing decision in H. C. in the Exchequer.) But the judge may hj his decision relieve the plaintiff of such onus ; he has to decide whether such onus is or is not on the plaintiff, and in the former case whether there is any proof to satisfy the onus and to nonsuit if there is not, instead of leaving the qucs- Infants not now liable on any con- tracts ex- cei)t for necessaries. 858 INNKEEPER. Against iunkeeper for goods stolen at liis inn. What are ' ' necessa- ries." Infant not liable on an account stated even for neces- saries. Infant liable for a tort, but not on a contract founded on tort. Innkeeper {^t). Claim for Goods of (iucst s/ole/i in the Dofcndanfs Inn. 1. The plaintiff is, and at tlie time of the committing of the grievance hereinafter mentioned was, a commission agent. The tion to the jury. {Ih.) Dinners, fruit, and confectionery supplied to an undergraduate out of college are not jfrimd facie necessaries as coming under the head of " meat." Matters of mere ornament, such as gold rings, betting-books, &c., are not within the rule as to necessaries suitable to one's condition. Mere luxuries, such as cigars, are not, in the absence of special circumstances, to be regarded as necessaries. {Bryant V. liicJiardson, L. R. 3 Ex. 93 n., and sec Jfi/dcr v. Womb/fcU, siq)ra.) Necessaries for an infant's wife are on the same footing as those for himself. {Turner v. Trcshy, 1 Str. 168.) See decisions in particular cases as to what are and are not neces- saries, collected in Roscoe Ev., 13th ed., 035, G36. It is no defence to an action for necessaries that the infant had an allowance sufficient to buy all necessaries with ready money. {Burfjlinrt V. Hall, 4 M. & W. 727.) Nor is evidence admissible to show that the infant had a sufficient supply of necessaries. {Byder v. Wombwell, L. R. 3 Ex. 1)0, Bramwell, B., dissentiente, and decision not included in reversal in Ex. Ch. L. R. -i Ex. 32.) Before the passing of 37 & 38 Vict. c. G2, above referred to, it was held that an infant was not liable on an account stated even for necessaries, and that such account was not admissible as an admission that necessaries to the amoiant shown had been supplied {Ingledem v. Douglas, 2 Stark. 36) ; nor for money lent, though laid out in purchasing neces- saries (Bohart v. Knout h, 2 Esp. 28) ; nor on a bill of exchange for amount of necessaries. ( WilUamfion v. Watts, 1 Camp. .5.52.) Though the above Act excepts contracts, &c.. for necessaries from its operation, yet as it does not expressly alter the former state of the law, but only provides that such contracts are not within the enactment, these deci- sions do not seem to be disturbed. A person is liable on a bill accepted by him after attaining his ma- jority, though drawn before. {Stevens v. Jackson, 4 Camp. 164.) But where goods not necessaries ordered by an infant are delivered to a carrier for him before majority, but do not reach him until after, he is not liable. {Griffin v. Lang field, 3 Camp. 254.) When an action, though in form ex contractu, is in fact founded on tort, as where an infant is sued for money had and received in a case where such money has been fraudulently appi'opriated or embezzled by him, infancy is no defence. {Bristorv v. Eastmaii, 1 Esp. 172. And see Bur nurd v. Haggis, 32 L. J. C. P. 189.) But if the action is for a fraudulent misrepresentation, infancy is a defence. {Lircrpool Adclplii V. Fairhurst, 9 Ex. 422.) An infant is not liable upon a warranty given by him. {Ilowlett v. Ilaswell, 4 Camp. 118.) It is no answer to a plea of infancy that the defendant fraudulently represented himself to be of full age. {Bartlett v. Wells, 31 L. J. Q. B. 57.) It is not competent to a plaintiff to treat a breach of contract as a tort for the pui-pose of suing the infant upon it. {Jennings v. Bandall, 8 T. R. 335.) (ff) By the 20 & 27 Vict. c. 41, s. 1, no innkeeper shall be liable to make good to any guest any loss of or injury to property brought to the inn (not being a. horse or other live animal, or any gear appertaining thereto, or any carriage) to a greater amount than £30, except in the following cases : — (1) Where the property shall have been stolen, lost, or injured thi'ough the wilful act, default, or neglect of the innkeeper, or any INNKEEPER. 359 •defendant at the like time was and still is the keeper of an inn Against at C, in the county of B., for the reception and accommodation i-eeijer. of travellers. servant in his employ, (2) Where the property shall have been deposited Statutory expressl}' for safe custody with the innkeeper ; provided that in case of protection such deposit the innkeeper may require as a "condition of his liability of inn- that the property be deposited in a box or other receptacle fastened and keeper. sealed by the person depositing it. By sect. 2, if an innkeeper shall refuse to receive for safe custody any property of his guest, or if the guest shall, through any default of the innkeeper, be unable to deposit his property, the innkeeper shall not be entitled to the benefit of the Act in respect of such property. By sect. 3, every innkeeper is bound to cause at least one copy of sect. 1 of the Act, printed in plain type, to be exhibited in a conspicuous part of the hall or entrance of his inn, and is to be entitled to the benefit of the Act in respect of such property ■only as shall be brought to his inn while such copy is so exhibited. An -' inn " means under the Act any hotel, inn, tavern, public-house, or other place of refreshment the keeper of which is by law responsible for the property of his guests (sect. 4). It has been held that the word wilful in the words " wilful act, default. or neglect " in the 1st section, must be read with " act " only, and not with •• default" or " neglect." (Squire v. micck'i; IG L. T. N. S. 93, per Byles, J.) It has been held that a mere verbal error in the copy of sect. 1 of the Act will not vitiate the notice so as to make it ineffectual, provided the notice states correctly the provisions of the Act ; but the omission of a material How it portion of the statute \vill render the notice ineffectual to protect the inn- may be keeper. {Sjncey. liaaniAC, L. J. 713, A-pp.) And the accidental omis- lost, sion of the word " act "' in the recital of the first section of the Act was held to be a material omission, (/i?/.) An innkeeper is bound at common law to receive persons who present themselves as guests at any hour of the day or night, provided they -offer themselves in proper condition to be received into the inn and are ready to pay for the accoromodation, and provided there is room to ac- /jommodate them ; but he is at liberty to set up an inn for the reception of a particular class of persons, and in such a case he is only bound to do what he publicly professes U> do. (See per Parke, B., in Johnxon v. Midland Itaihmij Co.. 4 Ex. 373.) Coffee-house keepers who do not profess to -yyjiQ ^^,.y lodge guests, boarding-liouse keepers, lodging-house keepers, and the jnQ^e'epers. owners of public-houses who do not let bed-rooms, are not innkeepers at <;ommon hiw. To constitute a person an innkeei)er, he must profess tc) <;ntertain and lodge all travellers. (See 2 Kent Com. .'S59-6.) Some of these persons, however, would come under the definition of the above statute. The real innkeeper is the person liable, and not a manager in whose name the licenses have been taken (jut. {Di.von v. Birch, L. K. 8 Ex. 135.) This would, xtmhlc, hold in cases which the above statute includes. An innkeeper has a lien for his charges upon all goods ln'ought by the The inn- ^Tiest to Ills inn; Ijut until the other day he could merely retain the keeper's goods until ].aynient. He might not sell lliein and satisfy his (lebt. Hen aiul However, by an Act of the pi-esent session, which came into operation on j-jght of the 8th Auguht, 1«78, an innkeei)er may sell the goods on which he has a f-alc uiulcr lien, provided (1) he keeps them six weeks before doing so. and (2) adver- it. tiscs the sale as directed by the Act a month before the sale. Defence^.']— In actions against innkeepers, where they are under the protection of the above statute they can set up the defence that the guest did not comply with the statute. On the other hand, if the innkeeper 360 INNKEEPER. Agiiinst an ' innkeeper for goods stolen at liis inn. "2. On or about the 1st of October, 187G, the defendant received into liis said inn tlie plaintiff as and being a traveller. 3. The plaintiff brought with him into the said inn a port- manteau containing articles of wearing apjxu'cl, and he placed the same in the bedi'oom allotted to him by the defendant in the said inn. 4. During the night of the ord or morning of the 4th of October, 187G — and while the plaintiff continued to abide in the said inn as a traveller and guest — some person or persons effected an entrance into the plaintiffs said bedroom, and stole- thence the said portmanteau and its contents, whereby the same were wholly lost to the plaintiff. 5. The said loss to the iilaintiflF Avas brought about by the negligence of the defendant in not providing proper bolts and locks for the door of plaintiflTs said bedroom, and l)y his negli- gence in employing dishonest servants, and by his negligence in allowing dishonest persons to have access to the premises of his said inn. The plaintiflP claims : — Siaiement of Defence. 1. The defendant does not admit the allegations contained in the 3rd paragraph of the statement of claim. 2. The defendant denies that the plaintiflTs portmanteau and its contents were stolen as alleged in the 4tli jiaragraph of the statement of claim, or at all. 3. If the plaintiff's portmanteau and its contents were stolen The mere loss or injury of goods es- tablishes a prima facie case against the inn- keeper. has not brought himself within it by not complying with its require- ments, such as exhibiting the printed copy of sect. 1, the plaintiff may in his reply state such omission. In one case it was held that in actions^ founded on the common law liability of innkeepers, it is a good defence that neither tkey nor their servants were guilty of any negligence or default in keeping the goods. {Dawxon v. Chamncy, 5 Q. B. 1()4.) But the loss of the goods raises a presumption of negligence, and throws on the innkeeper the onus of proving that there was in fact no negligence. He may do this by showing the precautions taken by him, or by showing that the loss happened by the negligence of the guest himself {ArmisteaJ, V. Wilde, 20 L. J. Q. B. 524 ; Burr/cs's v. CJnncnU, 4 M. & S. .306) ; but it must be shown that the loss would not have happened if the guest had used the ordinary care of a prudent man. And in Morgan v. Euvnj, (J H. & N. 2f)5, it was laid down generally that an innkeeper, though guilty of no negligence but even diligent, is liable for the loss of or injury to goods of his guest not arising from the negligence of the guest, the act of G-od, or the Queen's enemies. INNKEEPER. 3G1 or lost, the defendant says that the same were not stolen or lost Against an in consequence of the negligence alleged in the 5th paragraph innkeeper of the statement of claim, or of any negligence on the part of stolen at the defendant or his servants. ^'^^ >'^^- Action against Hotct-lcep])cr for injury to Goods. 1. The plaintiff" is a ei^-il engineer. The defendant is a hotel keeper, and the proprietor of the " Beaconsfield Arms," in H., in the county of , which is an inn or hotel for the recep- tion, entertainment, and accommodation of traveUers. 2. On the 8th of 8epteml)er, LSTT, the plaintiff was received by the defendant into his said hotel as a traveller. 8. The plaintiff l)rought with him into the said hotel, among Against an other goods, a box containing several valuable instruments con- f™j„^^^j°'^ nected with his profession of a civil engineer, and also certain to goods documents, plans, and maps ; and placed the said box and its ^* "^ ^^^' contents on a table in a private sitting-room assigned to him in the said hotel l)y the order and direction of the defendant's manager. 4. On the 9th of September aforesaid the said box was by reason of the negligence of the defendant's servants thrown from the table on which it Avas so placed as aforesaid on to the floor of the said sitting-room. 5. The said contents of the said box were so injured and damaged in consequence of being so thrown that they became and are wholly worthless to the plaintiff. The plaintiff' claims £150 damages. Slatciiiml of Defence 1. The defendant denies tliat the ])laintifl' brought to his inn the go(Hls mentioned in the 3rd paragraph of the claim. '2. The defendant denies that his manager ordered or directed the said goods, or any goods, to be placed in a private sitting- room. ?>. The said box and its contents were not thrown down from the table on to the fhjor and damaged or injured by any negli- gence of the defendant's servants. 4. The defendant does not admit the allegations contained in the 5t]i paragi"ai)h of the statement of claim. 362 INSANITY. Against an innkeeper. Defence of the 26 & 27 Vict. c. 41. 5. The defeiulant further says that the said box and its con- tents were proi)erty l)ronght to the defendant's inn (not being a horse or other live animal, or any gear appertaining thereto, or any carriage) ^vithin the provisions of the 20 & 27 Vict, c. 41, s. 1. 6. The defendant, at the time he received the plaintitt' into his inn, and thenceforth while the plaintiff resided therein, had exhibited and kept exhibited in a conspicnous part of the hall or entrance to the said inn a copy, printed in plain type, of section 1 of the above-mentioned Act. 7. The said box and its contents were not deposited expressly for safe custody with the defendant, as such innkeeper. 8. The said box and its contents, if injm-ed at all, were not injured through the wilful act, default, or neglect of the defen- dant as such innkeeper, or by any servant in his employ. Defence of insanity. Insanity (r'). Defence of InmnUij to an Action on a Contract. 1. The defendant, at the time when he made the alleged agreement [or executed the said deed, or accepted the said bill, or as the case may hv'\, was of unsound mind, and was thereby incapable of making [or executing, or accepting, &c.\ or under- standing the same. 2. The plaintiff, at the time of the making of the said agreement \_or as the case may he'] knew that the defendant was then of misound mind. Reply. 1. The plaintiff denies that he knew the defendant was of unsound mind, as alleged in the 2nd paragraph of the state- ment of defence, and he says that the said agreement was made fairly and in good faith. (a) If a contract is made with a person of unsound mind, vrith know- ledge of the fact by the other party, such contract cannot be enforced against him. If, however, such party was ignorant of the insanity, and the transaction was fair and boncifdc on his part, the contract will be valid. See JMtoii v. Camronx, 2 Exch. -487; 4 Exch. 17; Baxter v. Earl of FortsmoiitJi, 'j B. & C. 170; J}cad v. Lcfjard, L. .J. 20 Exch. 30'J. INSITEANCE— MAKINE POLICIES. 363 Insurance— Marine Policies («). Claim under Polku for Total Loss, Particular and General ^^ ^ ^f-: 7 r 7 • ^'^^^ policy Average Losses, and Exjjenses under Suimj and Lahounng for a total Clause. ^°«^' '^^«'- age losses, 1. The plaintiifs are a fii'in of sllipo^^^lCl•s carnan^ on business o'" "ider , ^,. „ T 1 1 1 1 X- the suing m the City oi London, and were the manag-ers and owners or a ^^ labour- ing clause. {a) Marine insurance is a contract by which the insurers, called underwriters, undertake, in consideration of a certain sum of money called the premium, to indemnify the assured against any loss which he may actually sustain, not exceeding a specified sum, upon ship, goods, or freight, as the case may be, eitlier during a certain voyage or for a certain time. In the former case the policy is called a voyage policy ; in the latter, a time policy. The party entering into a contract of marine insurance must have some hund fide pecuniary interest in the .subject-matter of insurance. He must have what is called an insurable interest, and this interest must exist not only at the time of entering into the policy but also at the time of the loss. Marine insurance is a contract of indemnity merely ; and it follows from this, that if the assured never had any interest in the subject-matter of insurance, or if his interest did not continue till the loss happened, he sustains no injury by the happening of the loss, and there is nothing for which to indemnify him. Another result which follows from the doctrine that the assured must have an insurable interest is this. He can only recover from the under- writers to the extent of his insurable interest. It may be that in conse- quence of insuring with a number of underwriters the total amount written on the aggregate of the policies he holds is in excess of the value of the f>ubject-matter of insurance, but this will be no advantage to the assured. He must not make a profit out of the common misfortune of the under- writers and himself ; and he can only recover against any one or all of the underwriters the actual loss he has suffered. He is not, however, bound to apportion the loss among the different undervrriters, and can ])roceed against one of them and recover the total amount from him. pro- vided he has underwritten the policy to that amount. In that case it will be for the underwriter who has had to pay all the loss to come upon the other underwriters whu have insured the same risk for contribution. Imurahlt; interest.'] — In the statement of claim it is necessary ex- pressly to aver the fact of the plaintiff's interest in the shij), goods, or freight insured, and the averment must be that the plaintiff was interested at the time of the making of the contract (except, of course, where an assignee of a policy is suing, then an allegation of the assignor's interest at the time will do), and also at the happening of the loss. .Ship-owners have an insurable interest in their ship. Upon the principle already stated, where they assign away their interest in the ship before the loss, they cannot recover except as trustees for the assignee, and this only when there has been an agreement that the p(jlicy should be kept alive for the benefit of the laXiCY (Po)vlris v. Iiuiex. 11 M. ..^ W. 10) ; but an assignment by way of mortgage, lliough in terms absolute, will not i)reveut the assured from recovering. {Ward \. Bcclt, 13 C. B.N. S. (HJS ; L. J. ;52 C. 1'. 113.) A person who lends money for the I'epair of a ship has no insurable interest in it, and an hypothecation of a ship by a ma.ster gives no insurable interest to the credit(jr. {Stainhank v. Sluqxird. KJ C. B. 418 ; L. J. 22 Ex. 341.) A mere equitable interest in goods is an insurable The in- sured must have a pecuniary interest. Marine insurance, a contract of indem- nity. Conse- quences of this. What con- stitutes au insurable interest. SG-I. INSUKANCE— MARINE POLICIES. (.)n a ma- rine policy for totiil loss, &c. vessel called the " 8t. James ;'' and the defendant is an under- writer carrying on business in Liverpool. 2. On or about the day of , 1877, the plaintiffs 'What con- stitutes an insurable interest. When the risk begins and when it ends. Usual losses covered. Effect of ' ' lost or not lost." What are ' ' perils of the sea." one (Hill v. Sccrcftin.. 1 B. & P. 815) ; and a lien on goods is insurable. (Jiriff/fxv. Mcrrhtuit Tradcr.i Insurance As.1., 18 Q. B. 167.) The interest (it a shipowner on the profit expected from carrying /lix on-ii goods is pro- jierly described and insured as freight. (Flint v. Flemyng. 1 B. & Ad. 4.") ; D('raii.P v. T Anson, 5 N. C. 519.) The assignee of a policy stands upon the interest which his assignor had at the inception of the risk, and his own interest at the time of tlie loss. Brrjinning and end of the r/.vA'.] — This differs whether the policy is a time or a voyage policy. If the former, the risk begins at the first date and ends with the last date, and the underwriters are only liable if the loss happens on or between these dates. In the case of a voyage policy, the risk begins when the insurance is on a voyage " at and from," as soon as the shi]i is geograi)hically within the port (^llawjlifon v. Eniinve Marine Insiir. Co.. L. li. 1 Ex. 200) : or. at the beginning of the voyage when the insurance is '■ from " the port. (SinaJl v. (riMon, 16 Q. B. 156 ; L. J. 20 Q. B. 152, Ex. Oh.) The risk in the case of a voyage policy on the shij) terminates in general at the end of twenty-four hours after mooring in safety in port, but where during the twentj'-four hours the ship is compelled to go back for jierformance of quarantine, the risk continues. ( Wajdes v. Fames, 2 Str. 1248.) In the case of goods, the risk depends on the agreement of the parties. Init it usually begins with the loading on board, and ends with the safe discharge, including their jiassage to the shore by usual means. {Twiney v. Ftherington, 1 Burr. 848.) The risk on insurance of freight begins when the goods or part are on board, or the ship is at the port of loading in a condition to take them on board. {Foley v. United Fire, J)-e., Insiir. Co., L. II. 5 C. P. 155 ; Jones v. Nejftune Marine Insur. Co., Ij. 11. 7 Q. B. 702. The loss.'] — There must be an averment that there was a loss of part or all the subject-matter of insurance by the perils insured against. These perils are enumerated in the particular policy ; but the usual perils insured against in marine pjolicies are all perils of the sea, loss by fire, by capture, loss by restraint of princes, loss by barratry, and then follow general words " all other perils, losses, and misfortiines ; " l)ut on the princijile that general words of the kind are to be taken as ejiisdein generis with those that have gone before, these words only refer to perils, losses, and misfortunes of a like nature to those already enu- merated. If the insurance is with the words '• lost or not lost," it will attach, although the subject-matter had l^een in fact lost at sea at the time of insurance, provided the party insui'cd was then ignorant of the loss. (8 Kent C(mi. 258, 259 ; Mead v. JDavie.ion, 8 Ad.'& E. 303.) In determining whether a particular loss is within the perils insured against, the jjroximate and not the remote cause of loss is to be regarded. But where the insurance is against perils of the sea, and mischief is occasioned by the sea, the natural and v;navoidable conse- quence of which is to cause a farther mischief, the consequential injury also is a jieril of the sea, as where the sea-water damages i)art of a cargo, which thereby becomes putrid so as to injure another part of the cargo in contact with it. {Montoya v. London, As-wr. Co., 6 Exch. 451 ; L. J. 20 Ex. 254.) A loss by ])erils of the sea, though remotely caused by the negligence of the crew, is within the policy. { Walker v. Maitland, 5 B. ic A. 171 ; Bi.^hoj) v. Pentland, 7 B. & C. 219.) So a loss occasioned by the mistake of the master, provided he was a person of competent skill when the policy was efilected. {Phillips v. ITeadlam, 2 B. & Ad. 380.) So though the ship was damaged by negligent loading, and INSURANCE -MARINE POLICIES. 365 effected with the defendant a policy of marine insurance in the On a ma- ordinaiy fonn for £1000, which the defendant subscribed for fine policy £50, at a premium of 7 guineas per centum, and became and los?, i:e. Ijecame leaky, and was run ashore to jirevent siukinjr. {liedmaii v. Wihon, 14 M. & W. 476.) A ship never heard of after sailing is pre- sumed to have foundered at sea. {Grcrn v. liron-n. 2 Str. 1199.) It is sufficient to prove that the ship has not been heard of in the country fi'om which she sailed, without callintr ■fitnesses fi-om the port of desti- nation to prove that she never arrived there. {Tircnilow v. Oswin, 2 Camp. 8.").) The time within which a missine ship will be presumed lost must dejiend on the circumstances of the case ; and in Hoitstmnn V. TJtornfon, Holt. N. P. 242. a shi]) which had sailed on a seven weeks' voyage, and had not been heard tli. L. K. 7 Q. B. 404. There is usually a memorandum on marine jiolicies protecting the insurer from claims for loss on certain articles, or fnmi liability to particular average " unless the ship be stranded ; " and in a great num- ber of cases there has been a keen contest as to what constitutes a stranding. The fact that the ship struck or took the ground is not enough ; she must be stationaiy for some little time, as twenty minutes. {Baher v. Towri/, 1 Stark. 436.) " A stranding." said an eminent judge, '•may be said to take ])laco where a" shi)) takes the ground ncjt in the ordinary course of navigation, but by reason of some unforeseen accident. {Bishop V. Pmtliind,! B. &C. 219.) If therefore the ship takes the ground in the ordinary and usual course of navigation and management in a tidal river or harbour, upon the ebbing of the tide or natural deficiency of water, so that she may float again upon the flow of the tide or increase of water, such an event is not a stranding." (Per Lord Tenterden, in Wdh v. Hnpn-ood, 3 B. & Ad. 34.) If luwever there be a stranding, and the goods were on boaid at the time, the jiolicy apjilies, though the loss or injury to the goods was not caused by the stranding, but by some other cause. (Ibid.) A loss may be total or jjartial ; and a total loss may be cither actual or constructive. A total loss is where the subject-matter of insurance is either totally destroyed or is so damaged as to be worthless, and the adventure is thereby totally fi'ustrated. (Boiix V. Sahadtr, 3 X. C. 266.) A constructive total loss is where the thing insured, though still existing in fact, is lost for all useful jjurjjoses. so as to justify the insured in abandoning all his interest in it to the insurer, and claiming as for a total loss. (Sec Boiix v. Sulrader, siiprii ; Nayhr v. Tnylor, 9 B. & C. 718 ; JTold-worth v. U'/.sr, 7 B. & C. 794.) Notice of abandonment must be given to the underwriters. It need not be in writing, but it must be certain, it nnist be unconditional and unqualified {Mr?f/istrrx v. Slwolbrcd. 1 Ksp. 239) ; and it nnist be given as soon as possible. {Hunt v. B. Exch. A.s-xin-iDicc Co., 5 M. & S. 47.) "Where the loss is total, that is to say where the ship is lost, or de- stroyed, or caj)turcd, or reduced to a mere wreck, or congeries of ))lanks, 80 as to exist as a ship for no useful ])uri)osc {Farnirorth v. THidr, 18 C. B. N. S. 835 ; L. J. 34 C. P. 207 ; Cambridge v. Andcrton, 2 B. "Perils of the sea." When a ship never heard of is supposed to have founilered. What con- stitutes a stranding. Losses divided into total and i)ar- tial ; and total into actual or construc- tive. Notice of aliaiidoii- ment. 8GG INSURANCE— MAKINE POLICIES. On a ma- rine policy for total loss, &c. was an insurer thereon to the plaintiifs for the said sum of £50 for the ship " St. James/' valued at £10,000, lost or not lost, at and from N. to a rice port in the bay of Bengal while there. When 13olicy valued and loss total, liow loss calculated. When loss partial though policy valued. When policy open. The deduc- tion of new for old. A strict compliance •with ex- press war- ranties must be averred. Implied warranties of seawor- thiness and against deviation. What is a deviation. & C. fi'Jl). then it is not necessary to crivc notice of abandonment. As to what amounts to a total loss of freijiht, see Potter \. liankin, L. K. (; H. I.. .SB : AHi:^(>n v. Bristol Marhi,- Insiir. Co., L. K. !) C. P. 5.59. Ciilcuhition. of the Zo.m.]— Where the i)olicy is a valued one — the esti- mated value of the subject-matter of insurance stated on the face of it — and the loss is total, there is no difficulty aliout calculating the loss, and the assured is only bound to prove aonie interest in the ship or goods, in order to take the case out of the statute 19 Geo. 2, c. 37 ; for ever since that statute, the usage has been to permit the valuation fixed on the policy to stand, unless the defendant can show^ that the plaintiff had a colourable interest only, or that he has greatly overvalued the goods. If the lo.ss is 2>">'f'>al^ though the policy be valued, the plaintiff is bound to prove the value of the goods in the same way as if the policy were an open one. (Irr/nr/ v. Manning, 1 H. L. C. 287.) The rule in the case of an open policy is to estimate the actiial value of the subject insured at its actual or market value at the commencement of the risk ; and if the claim be for rcjiairs of a ship, the full cost of repairs will not be allowed, because the owner substitutes new for old materials. {Poingdextre v. li. Exclb. Assnr. Co.. Ey. & M. 378.) A deduction of one-third new for old, as it is called, will be made, unless the ship is on her first voyage. (Pirie V. Steele, 2 M. & Rob. 49; or perhaps if she is an iron ship; Lldgett. v. Scretan, L. R. 6 C. P. 616, 627.) It must be noticed, how- ever, that besides the amount actually subscribed for by the iinderwriters, they may become lialjle for average losses, and, under the siiing and labouring clause, for moneys expended in and about the attempting to save or recover the subject insured, if properly claimed in the statement of claim. {Le Clieminant v. Pearson, 4 Taunt. 367.) Warranties.'] — There are in the case of all policies of marine insurance certain warranties by the assured, some express, others implied. These war- ranties are in the nature of conditions precedent ; but as only a general jierformance of all such conditions is usually averred in the statement of claim, the particular warranty, the breach of which is relied on, must be specially jileaded as a defence in the statement of defence. Where the policy contains an express warranty, a literal and strict compliance with it must be jiroved, and it is not sufficient to show something tantamount to a performance of it. unless it be a waiver or dispensation of perform- ance ; and in that case it must be specially jileaded as such, and not as a compliance. (Weir v. Aberdeen, 2 B.& A. 320 ; Croocken-it v. Fletcher, 1 H. & N. 893, L. J. 26 Ex. 1.53.) The chief implied warranties are that there shall be no deviation from the voyage insured, and that the ship (in the case of a voyage policy) is seaworthy at the commencement of the risk ; and a breach of one or other of these warranties avoids the ])olicy, although there has been no fraud. Any deviation from the voyage insured is fatal, although no loss happens in consequence of the devia- ti(jn, and although the loss in respect of which the underwriters are sought to be made liable did not occur till after the vessel had returned to the regular course of the voyage. A deviation does not discharge the insurer from liability for previous loss, but only for loss accruing after the deviation. {Greeny. 3 o«//(7, 2 Lord Raym. 840.) All deviations by reason of inevitable accident or stress of weather, to obtain needful pro- visions or to do needful repairs, or avoid capture, are implied exceptions to this warranty ( Crquhart v. Barnard, 1 Taunt. 4.56) ; but it is a ques- tion whether a deviation for the purpose of helping a vessel in distress is allowable or not. (See Lavrance v. Sijdehottom. 6 East, 54 ; The Jane, INSURANCE— MARINE POLICIES. 367 and thence to a port of discharge iu the United Kingdom, \\ith on a ma- leave to call at a ])ort for orders, and for thirty days while in port "^^^ P^^/^y ,,,..,. for total after an-ival. And it was agi-eed that deviation of voyage should loss, &c. 2 Hagg. Am. Rep. 345 ; 3 Kent Com. 313.) With respect to the implied warranty of seaworthiness it is meant that the shij) shall be in a fit state as to repairs, equipment, and crew, and in all other respects to encounter the ordinary perils of the voyage insured at the time of sailing on it. But the assured makes no warranty that the vessel shall continue seaworthy, ov that the master or crew will do their duty during the voyage ; and their negligence or misconduct is no defence to an "action on the policy where the loss has been immediately occa- sioned by the perils insured against. {Dixon v. Sadler, 5 M. & W. 414.) Where a ship is unseaworthy when she sails on her voyage, the policy is there and then avoided, and it is not set up again by her becoming .seaworthy during the course of the voyage. (Qxebec JIarinc Insn. Co. V. Commercial Bank of Canada. L. R. 3 F. C. 234.) Not only does the ship-owner warrant that his ship is seaworthy, but the owner of goods the subject of insurance loaded on board ship, warrants that the ship is seaworthy {Biccard v. >Shej)?te?-d, 14 Moo. P. C. 494) ; and if the ship turns out to have been unseaworthy, the owner of the goods cannot recover against the under^\^•iters. There is. however, no implied warranty as to the goods themselves that they are seaworthy for the voyage. {Koehcl v. SaumUrs, 17 C. B. N. S. 71 ; L. J. 33 C. P. 310.) It has now been finally settled that this rule requiring seaworthiness at the commencement of the risk only applies to royaye policies. In the case of time i)olicies there is no implied warranty of seaworthiness. {Bttdgeon v. Ponhroue, 46 L. J. (H. L.)40'J.) Defences — Conceal went .'] — If the assured conceals any material fact which relates to the risk insured, the policy is void {Carter v. Boelim, 3 Burr. 1905; Bmaell v. Thornton, 6 H. & N. 140); and it makes no matter though the fact were once known to the underwriter, if it was not present to his mind at the time of effecting the insurance. (Bates V. Ilcivett, L. R. 2 Q. B. .5'J.">. ) The assured is bound to communicate all the information he has received, though he does not know it to be true, and though it afterwards turns out to be false. It is important to notice, however, that by mercantile usage the signing of the slip, not the de- livery out of the policy, is the making of the contract. Hence it is only facts known to the assured at th; former time that he is bound to communicate ; and anything coming to his knowledge before the delivery out of the policy, though after the signing of the slip, he is not compelled to disclose. (Lishman v. A'. Maritime In.siir. Co.,!,. R. 8 C. P. 216 ; aff. in Ex. Ch. L. R. 10 C. P. 179. See also on this subject, Jlorri.son v. Uni- versal Marine Inanr. Co., L. R. 8 Ex. 197 ; Lynch v. Ilamilfon, 3 Taunt. 37). It is sufficient to communicate facta without the oinnion or con- clusions founded uj^on those facts. {Bell v. Bell, 2 Camp. 479.) Mere rumcjurs or news in the ])ublic papers need not be communicated (3 Kent Com. 285), nor need facts which the imderwriter is presumed to know, as that a ship classed A 1 at Lloyd's will be struck off the list unless re-surveyed in the fourth year from the registration. {Gandy v. Adelaide Marine Inxiir. Co., L. R. 6 Q. B. 74r).) Misrejfrexentation.] — Any misrepresentation of a material fact by the assured tf) the underwriters at the time of entering into the contract avoids the pijlicy ; and any misrepresentation made to the Jir.'it of the under^vritcrs is regarded as made to them all. {3Iar.lied warranties of the policy ; and in fact the defence in })robably a majority of the actions on marine policies is a deviation by the vessel during the voyage or her unseaworthiness at the inception of the risk. INSUEANCE— MAEINE POLICIES. ggg S. F., or some or one of them, were or was, at the time of the 9*^ '^ ^^^' commencement of the said risk and of the effecting of the said for^totar^ insm-ance, and thence until and at the time of the several losses lo^s. ^'^■ herein mentioned, interested in the subject-matter of the said insm*ance to the value and amount of all the moneys ever in- sured thereon, and the said policy was made for the use and benefit and on account of the person or persons so interested as aforesaid. 5. The said vessel sailed fi-om N. to A. on the said insured voyage, and afterwards, on or about the day of , 187G, sailed fi'om A. on the said insm'ed voyage, and after the com- mencement of the said risk, and whilst the said policy was in fall force and effect, the said vessel became and was, by perils insured against in the said policy and not by any of the perils, causes, and matters from which the said subject-matter of in- surance was warranted free, wholly lost. G. The plaintiffs further say that during the said insured voyage, and whilst the said subject-matter of insurance was ■covered by the said policy, the said subject-matter of insm'ance ;8ustained a particulai* average loss by the perils insured against by the said policy, in respect of which the assm'ed are entitled to be indemnified under the said policy. 7. The defendants further say- that dm-ing the said insured voyage, and whilst the said subject-matter of insurance was covered by the said policy, a loss and misfortune arose within the true intent and meaning of the same, and thereupon, in accordance with the terms of the said policy in that behalf, the assured incurred divers charges and expenses for w^hich the defendant became liable to the plaintiff for a large sum in pro- portion to the sum insured by the said policy. 8. The plaintiffs further say thafe during the said insured voyage, losses and expenses were incun-ed for the ijreseiwation of the said vessel, her cargo, and freight, for whicli the assured became liable to contribute in general average, and a general average loss was thereby occasioned within the meaning of the said policy, for which the defendants Ijccame liable to pay to the plaintiffs a large amount. 0. The plaintiffs have requested the defendant to pay the several amounts due to them under and in res])ect of the said policy, but the defendant refuses to jiay the same. '0 INSURANCE— MARINE POLICIES. On a iiia- liue policy for total loss, &c. The plaintiffs claim: — (1.) £100 damages. (2.) In the event of the plaintiffs not being entitled to re- cover on the said policy, a return of the premium paid with interest. Defence, Unsea- worthiness^ Conceal- ment. Payment into Court. Statement of Defence. \_First six jfciraprqjJis of defejKe denials and admissions.'] 7. At the commencement of the voyage and risk respectively, and at all material times thenceforth, the vessel has been always nnseaworthy for the risk and voyage respectively. 8. The defendant further says that he was induced to effect the said insurance, and to execute the said policy, by the WTong- ful and improper concealment by the plaintiffs and their agents, from the defendant of certain facts then known to the plaintiffs and their agents, and unknown to the defendant, and material to the said risk, and which ought to have been communicated by the plaintiffs \ or their [agents to the defendant or his agents, viz, \^Here set ovt the suljstance of the alleged conceal- mmt\ 0. The defendant brings into Court the sum of £3, being the- amount of premium paid by the plaintiffs in respect of the said policy with interest, and says that the same is enough to satisfy the claim of the plaintiffs in respect of the said policy. On a ma- rine policy for a total construc- tive loss. Action hj Shijiowner on Murine Policy for Total Constructive Loss of a Ship. 1. The plaintiff, at the times hereinafter respectively men- tioned, was the owner of the ship called the " M." 2. The plaintiff, on the 8th day of June, 1875, caused to be made a policy of insurance, with certain memoranda there- under ^n-itten in the words and figures following : [Here follows the 'policy set out at lenyth. It was in the vsnal form.'] 3. In pursuance of the said policy aforesaid the plaintiff paid to the defendant £?> 3s. as a premium for the insurance of £50 of and upon the premises in the said jwlicy mentioned as afore- said, and the defendant became and was an insurer to the plain- tiff as aforesaid, and duly subscribed the said policy as such INSUKANCE— MAEINE POLICIES. 37X insiu'er for the said £50 npon the premises in the said policy C)aama- , rine policy mentioned. for a total 4. The plaintiff, at the time of the making of the said policy, constnic- aud from thence continually afterwards until and at the time of the loss hereinafter mentioned, was interested in the said ship to the amount of all the moneys insured thereon, and the said policy was effected for his benefit and on his behalf 5. Afterwards and between the IGth day of April, 1875, and the 15th day of Oct., 1875, during the continuance of the risk covered by the said policy, the said ship became by the perils so insured against a constructive total loss, and notice of abandonment was thereupon duly given by the plaintiff to the agent of the defendant in that behalf. G. All conditions precedent have been fulfilled necessary to entitle the plaintiff" to be paid the said sum of £50 by the defendant, yet the defendant has not paid the same. The plaintiff claims : — Action hij Owner on Marine Polirij for Damaye to Vessel by peril insured against. 1. The plaintiff's are owners of the steamship " L.," and the On a ma- defendant is an underwriter, rine policy tor damage 2. On or about the day of , 1876, the plaintiffs to a vessel. caused to be made on the said steamship " L." a policy of insurance, Avhich was in the words, letters, and figures fol- lowing, that is to say; \_Here folloivs thepolirij, ivhich ica.s in the usual terms.] 3. The defendant, in consideration of the said premium of 20.^. per cent., underwrote the said policy for the sum of £100, and thereby became an insurer U> the plaintiffs for that amount. 4. The plaintiffs were then, and thence and until the hap- pening of the damage hereinafter mentioned, interested in the said steamship to the amount of all the moneys by them insured thereon, and the said policy was made on their account and for their use and benefit. 5. The said steamship sailed from the Clyde on her said voyage in ballast, on the 4th day of Aj)ril, 187C, and on Uw. morning of the 7th of April, and during the contiiniance of the said risk, by reason of the perils insured against, one of the U B 2 .S72 INSURANCE— MARINE POLICIES. On a ma- boilcrs exploded and was wholly destroyed, and the said steam- for dauia-c ship was greatly injured and damaged, and had to he towed into to a vessel. M., where a survey was held upon licr, and in aecordance with a recommendation of the surveyors sufficient repairs were effected to enable her to proceed to L. 6. The said steamship afterwards proceeded to London in order to be permanently and properly repaired, and she was there so repaired. 7. By the matters aforesaid the said steamship was by the perils insured against by the said ])olicy injured and damaged to an extent exceeding £3 per cent, within the true meaning and intent of the said policy, and the defendant's proportion of the said average loss in respect of the sum of £100 so insured by the defendant as aforesaid amounted to £40. 8. All conditions were fulfilled, and all things happened and existed and all times elapsed, necessary to entitle the plaintiffs ■ to be paid the said sima of £40, yet the defendant has not paid the said sum or any part thereof. The plaintiffs claim :— 1. £40, and interest thereon from the 30th June, 187G, 2. A return of the said premium of £1. 3. Such iui'ther, &c. Action on Policy by Shipper for Total Loss of Cargo. On a ma- 1. The plaintiff is a merchant, and the defendant is an rine policy t ■, effected on Underwriter. good.s. 2. On or about the 6th of October, 187(1, the plaintiff, by his agents Messrs. M. & D., caused to be made a policy of insur- ance, which was in the words, figures, and letters following, that is to say : — \_Here follows policy of insurance on goods shipped per the " M. sr^ 3. The defendant, in consideration of the premiums therein mentioned and paid by the plaintiff, underwrote the said policy for the sum of £ , and i)ecame an insurer to the plaintiff for the said amount in respect thereof. 4. The plaintiff was, at the time of making the said policy, and until and at the time of the loss hereinafter mentioned, interested in the said goods to the amount of all the moneys by INSURANCE— MAEINE POLICIES. 373 him insured thereon, and the said pohcy was effected on his (^'n a ma- behalf and for his use and benefit. for\otal''"^ 5. The said goods were duly shipped on board the '* M. S.," loss of and on the 22nd day of September, 1876, the said ship, with ^'°°'^^' the said goods on board, left ^Madeira on her voyage to New York. 0. Whilst the " j\I. 8." was proceeding on her said voyage, with the said goods on board, and during the continuance of the said risk, the said goods were by the perils insured against whoUy lost. 7. All conditions were performed, and all things happened, and all times elapsed, necessary to entitle the plaintiff to the sum of £ insured ]jy the said policy. 8. The defendant has not paid the same, or any part thereof. The plaintiff' claiins: — Statement of Defence, 1. The defendant requires the plaintiff' to produce and prove Defences. the policy of insurance referred to in the 2nd paragraph of the statement of claim. 2. The defendant denies that the plaintiff was interested in N" iii«"i- thc subject-matter of insurance, or that the policy was effected (Jgi-est" on his behalf or for his use and benefit, as alleged in the 4th paragraph of the statement of claim. 3. The defendant denies that the said goods, or any part thereof, were shipped, (»r that the said ship ever sailed on the said insured voyage. 4. The defendant further says that the said ship, at the com- mencement of the voyage in tiic statement of claim mentioned, was not seaworthy for the said voyage, and that by reason of Unsca- such unseaworthiness the said policy of insurance never attached ^^ortlimess. to the said subject-matter of insurance. o. The defendant further says if it should be proved that the said policy of insurance attached to the sul)ject-matter of insur- ance, that after the commencement of the voyage in the said policy mentioned, and before the alleged loss, the said ship, Deviation. without suilicient cause or excuse, deviated I'rom and i'ailed to prosecute and pro(;eed on the said voyage. 0. In case tin; said j)olicy should be produced and proved, the Misreitre- Kentation. 374 INSURANCE— MARINE POLICIES. On a ma- vine policy for total loss of goods. Defences. defendant fiirtlicr says tliat the defendant was induced to become an insurer to the plaintitt' by the misrepresentation and conceahncnt by and on the i)art of the plaintiff' and his agents of divers material facts well known to the plaintiff' and his agents, and unknown to the defendant and his agents, and Avhich ought to have been communicated by the plaintiff" or his agents to the defendant or liis agents, viz. [Here set out the alleged concealments and misrepresentations.'] 7. Tlie defendant denies that the said goods, or any part thereof, were or was lost by the perils insured against, or any of them, as alleged in the Cth ])aragraph of the statement of claim. On a ma- rine policj' foi- loss of cargo by " restraint of kings, &c." Action on rolicyfor Total Loss of Cargo seized on the Danube ly the Russian Gocermnent. 1. The plaintiff's are merchants in London ; the defendants are a marine insm'ance company. 2. On or about the 3rd of May, 1877, the plaintiff's eff'ected with the defendants a policy of marine insurance for £2 GOO, which the defendants, for a premium at and after the rate of 60s. per cent., executed for the said sum, and became insurers thereon to the plaintiff's upon 1250 Braila kilos of barley, valued at £3500, including £350 advances for the ship " Apostoli," lost or not lost, at and from ports or places in the Danube ^ Sulina to a port or ports of call '^^ discharge in the United Kingdom or on the continent of Europe between Havre and Hamburg, both inclusive. To return 4/9 per cent, for sailing on or before 1st of May and arrival. 3. The perils insured against by the said policy were those ordinarily covered by a policy of marine insurance, and included perils of the seas, men-of-war, enemies, letters of mart and counter-mart, surprisals, takings at sea, arrests, restraints and detainments of all kings, princes, and people of what nation, condition, or quality soever, and of all other perils, losses, and misfortunes that have or should come to the hurt, detriment, or damage of the subject-matter of the said insurance, or any part thereof. 4. The goods covered by the said policy were shipped on board the said vessel at a port or place of shipment within the INSURANCE— MAEINE POLICIES. 375 meanino; of the policy, to be carried therein on the insui-ed 9" '^ '"*" ° X ^ ' . , . rine policy voyage, and thence until and at the time of the loss herein- for loss of after mentioned, the plaintiffs, or some or one of them, were or ^f^»o l)y was interested in the said subject-matter of insurance to the of kings, full amount insured by the said policy, and the said pohcy was *c." made for the use and benefit of the persons or person so interested, and on their account. 5. After the said policy had attached to the said subject- matter of insurance, and whilst the same was covered thereby, and whilst the said vessel ^^^th the said goods on board Avas lying in the Danube, the navigation of the Danube was declared by the Russian Government and military authorities to be and was in fact closed by them, and the said vessel and goods were by them forcibly taken out of the possession and control of the plaintiffs, and an-ested and detained, and the said subject- matter of insurance became and was wholly lost to the plain- tiffs by perils insured against by the said policy. 6. All conditions have been fulfilled and all things have hap- pened and all times have elapsed necessary to entitle the plain- tiff to be paid the moneys insured by the said policy, yet the defendant has not paid the same, or any part thereof. The plaintiffs claim : — (1) £2000, with interest until payment. (2) In the event of the plaintiffs not being entitled to re- cover on the policy, a return of the premiums paid as aforesaid, with interest. Action on Two Folkies for Partial Loss hy Peril insured against, viz., " RisJc of Craft," and also for Damages under the " Suing and Labouring " Clause. 1. The plaintiffs are merchants carrying on business at G., On two / • -z <=> _ luaiine and the defendants are an insurance company carrying on policies business at Liverpool and elsewhere. ^°'" '"JJi'^y 2. On or about the 2nd June, 1870, the plaintiffs, through their agents, Messrs. K. N. & Co., effected a policy of marine insurance with the defendants at a premium of 2 per cent, for ,£2500, which the dei'endants executed for the said sum of £2000, and thereby became and Avere insurers thereon to the plaintiffs for the said amount on 3100 bags of linseed, valued to goods. gi^g INSUKANCE -MARINE POLICIES. Ou two at and for .£2500 sterling, on board the vessel " A." at and poUdes fi'Oi" Bombay to Sharpness, including all risk of craft and for iujuiy boats to and from the said vessel. to goods. y^ Qj^ ^^, j^^^^^j. (.^^ r^j.^^ j^^j^g^ jg^^;^ tt^g plaintiffs, through their agents, Messrs. K. N. & Co., effected another policy of marine insurance with the defendants at a premium of 2 per cent, for £2500, which the defendants executed for the said amount, and thereby became and were insurers thereon to the plaintiffs for that amount on a further quantity of 3100 bags of linseed, valued for £2500 sterling, on board the said vessel " A." at and from Bombay to Sharpness, including all risk of craft and boats to and from the said ^-essel. 4. The risks and losses insured aganist by the said policies- respectively were those ordinarily covered by a marine insurance policy, and included perils of the sea and all other perils, losses, and misfortunes that should come to the hurt, detriment, or damage of the said subject-matters of insurance, or any part thereof, and the said policies respectively contained the usual suing and labouring clauses. 5. The goods intended to be covered by the said policies- respectively were duly loaded on board the said vessel at Bom- bay aforesaid to be carried on the said voyage, and then and thence until and at the time of the losses hereinafter mentioned the plaintiffs were interested in the said subject-matter of insurance to the extent of all the moneys insured thereon respec- ti\ely, and the said policies respectively were made for their use and benefit and on their account. G. After the said policies had attached, and during the con- tinuance of the said risk, and whilst a portion of the said goods, that is to say, about 1570 bags of linseed covered by the said policies, were being caiTied in a craft or boat within the meaning of the said policies, the said craft or boat, through the violence of the weather, sank with the said 1570 bags,, and by perils insured against by the said policies respectively as aforesaid, a portion of the said 1 570 bags was lost and the remainder gi-eatly damaged and deteriorated in value. 7. The damaged linseed was forwarded to Hull for the pur- pose of being sold, and the same was in fact sold to the best advantage, and the plaintiffs sustained a loss upon the same of about £1300, and the defendants' proportion of the loss in INSTIKANCE— MARINE POLICIES. ^*J^ respect of the said two sums of £2500 iusiired as aforesaid On two . 1 , , marine amounted to a large sum. policies 8. The plaintifi's also say that after the commencement and for injury during the continuance of the said risks respectively, and whilst and also the said policies respectively were in full force and effect, a loss under the or misfortune occurred within the true intent and meaning of labourtn"- the said policies, and the plaintiffs thereupon by their factors, clause, servants, and assigns in that behalf, did sue labour and travel in and about the defence, safeguard, and recovery of the said subject-matters of insurance, and necessarily incurred charges and expenses in and about the defending, safe-guarding, and recovering of the same, of which the defendants' proportion in respect of the said sums so insured by them as aforesaid amounted to a considerable sum. 9. Particulars of the plaintiffs' claim have been furnished to the defendants, and the plaintiffs ha-se applied to the defendants for the payment thereof, but they have refused to pay the same. The plaintiffs claim : — (1.) £500, with interest until payment. (2.) If it should be established that the plaintiffs are not entitled to recover on the policies, a return of the premiums paid with interest. Action on PoUaj of Marine Insurance on Cargo for Partial Damage and Loss. 1. On the 7th October, 1876, the plaintiff caused to be On a mu- effected with the defendants a policy of marine insurance upon foj. partial 3G1 casks of olive oil, the proi)erty of the plaintiffs, valued at *lamage of £8000, to be carried by the ship "B. S." from G. in the '■""^"'' Mediterranean to the United Kingdom. 2. The defendants subscribed the said policy to the amount of £1800, in consideration of a premimn of £18 then paid to them by the plaintiHs, and became insurers of the said oil. 3. The perils against which the insurers insured the said oil were, amongst other things, perils of the seas, and all other losses, perils, and misfortunes which should come to the hurt, detriment, or damage of the said oil, or any part thereof. 4. The said oil was shipped on board the said ship, and after 378 INSURANCE— MARINE POLICIES. Ou a ma- rine policy for partial loss of cargo. the said sliipmciit, and ^vhilst the said slii]) Avas proceeding upon lier said voyage, and during the continuance of the said I'isk, diAers of tlic casks in which the said oil was shipped were by jjerils of tlie sea gi'eatly damaged, and a large quantity of the said oil was lost, 5. Tlie plaintiffs at the time of the effecting of the said policy, and thenceforward continually until the loss aforesaid, Mere interested in the said oil to the amount insured. C. By reason of the jiremises, the sum payable by the defendants to the plaintifls under the said policy aforesaid amounted to £174. The plaintiffs claim £174. Defence. Siatcmcnt of Defeme. 1. The defendants deny the several allegations in the 4th paragraph in the statement of claim. The defendants do not admit that the said oil was shipped On board the said ship, and if the said oil was shipped, which they do not admit, they deny that divers or any of the casks in which the said oil was shipped were by the perils of the seas greatly damaged or damaged at all, and the defendants deny that a large or any quantity of the said oil was lost as alleged. 2. The defendants say that the said oil, if shipped (which they do not admit), Avas shipped in improper or insufficient casks, and that the alleged loss (if any) was caused by the improper and insufficient state and inherent vice of the said casks, and was a loss for which the defendants are not responsible. 3. The defendants deny that the plaintiffs were interested in the said oil as alleged in the 5th paragraph of the statement of claim. 4. The defendants deny that the alleged loss (if any) amounts to the sum of £174. It does not exceed £80. Action hi/ Sliip-oiviwr on PoUaj for Loss of Freight. On a ma- 1. The plaintiffs are owners of the ship " P." of AV., and the for^lass 0/ defendants are underwriters at Lloyd's. freight. 2. On the 17th June, 1870, the plaintiffs and Messrs. J. and INSTJEANCE— MARINE POLICIES. 379 G. B. & Co., of Londou, agreed by charter-party, inter alia, 9^j\'J{J^ that the said ship should proceed to S. A., India, or any port for loss of on the way, with cargo benefit, and having dischai'ged same, freiglit- should sail and proceed as ordered at port of discharge of out- ward cargo to A. A., E., R., B. for orders to load at R. or B. (one port only), and there load fi'om the said charterers or their agents a fiill and complete cargo of rice in bags, and being so loaded, should therewith proceed to Q., F. or S. for orders to discharge in a good and safe port in the United Kingdom or on the continent between H. and X., both inclu- sive, and deliver the same in any customary dock or basin charterers might appoint agreeably to bills of lading. That the charterers should pay freight on true delivery of the cargo in full of all port chai-ges, pilotage, and primage, at and after the rate of 67s. 6(1 per ton of 20 cwt. nett, delivered in mamier and subject to deductions as in the said charter-party specified. 3. The said charter-party also contained the following clause : " If any portion of the cargo be delivered sea-damaged, the freight on such sea-damaged portion to be two-thirds of the above rate, except only in case the vessel shall have been stranded." 4. On the Cth ]\rarch, 1877, the plaintiffs, by a policy of insurance of that date, caused themselves to be insured upon the said freight, which said policy was in the words and figures following, that is to say : [Here follows policij sot out infulJ.'] 5. The defendants, for the premiums respectively paid to them by the plaintiffs, subscribed the said policy for the amounts above specified, and became insurers thereon to the l)laintiffs for such amounts respectively on the subject of the insurance described in the said policy. The charter-party mentioned in the said policy is the above mentioned charter- party of the 17th June, 187G. C. The plaintiffs were then and thence, until and at the time of the loss hereinafter mentioned, iiitei-ested in the subject of the said insurance to the amount of all tlie moneys by them insured thereon, and the said policy was effected for their benefit and on their account. 7. The cargo was loaded on board the said ship, to be carried 380 INSUEANCE— MARINE POLICIES. ()ii a iiiii- at frciijht on board on the said voyaffe, and the said ship for luss of departed on her said voyage, and in July, 1877, arrived in freight. London and there discharged the said cargo, and there, during tlic continuance of the said risk, a portion of the said cargo was deh\ered sea-damaged, and thereby, pursuant to the said clause in the said charter-party set forth in the 3rd paragraph of this statement of claim, the plaintiffs lost one-third of the fi'eight on such sea-damaged portion. The said ship was not stranded, sunk, or burnt. 8. The total freight on the cargo was £3871, and one-third of the total was £1290, of which £1200 formed the subject of insimuice under the said policy. The one-thu-d of the fi-eight lost by the plaintiffs on the sea-damaged portion of the cargo amounted to £273. 9. By reason of the premises the plaintiff's have become entitled under the said policy to recover from the defendants respectively so much of £273 as is proportionate to the sum& for which the defendants respectively subscribed the said policy. 10. All things have happened and all times have elapsed necessary to entitle the plaintiff's to be paid the same, yet the defendants have not jjaid the said moneys, nor any part thereoT, nor hasany of them done so. The i^laiutiflFs claim : — {Here follow the amounts claimed from each defendant ?<^ Interest on the said sums respectively from the date of the writ until judginent. Such further or other relief, &c. Action on Policy hj Assignee thereof for j^ci^ticular Average Loss and Expenses under Suing and Labouring Clause. On a ma- 1. The plaintiff" is a corn merchant at N., and the defendants by'as&i^Tiee ^^'^ ^ marine insurance company in America. 2. On or about the day of 1877, Messrs. G. & F., at a certain premium, insured with the defendants under a marine insurance pohcy of. that date 18,460 dollars in gold and 3900 quarters of mixed maize in bulk, free of particular average, unless caused by burning, sinking, stranding, or collision of INSTJKANCE— MAEINE POLICIES. 381 vessel, valued at the said sum thereby insured ; tlie maize to 9° '^ ™^- be shipped on board the barque " P." at and from B. to C. or J^yasSee F., for orders to a port in the United Kingdom, including lighterage risk, if any, to and from the vessel, and it was thereby agreed that in case of loss such loss should he payable to the orders of the said Messrs. G. & F., and should be paid in sterling at the counting-house of Messrs. B. S. and Co. in London, at the rate of 4 dollars 95 cents gold to the pound sterling. 3. The risks insiu'ed against by the said policy were those ordinarily covered by a marine insurance policy, and included, perils of the seas and all other losses, perils, and misfortunes that should come to the hurt, detriment, or damage of the said subject-matter of marine insurance, and the said policy included the usual suing and labouring clause. 4. The goods covered by the policy were shipped by Messrs. 'G. & F. by the said vessel, and at the time of shipment, and thence until and at the time of the assignment hereinafter mentioned, the said firm were interested in the said goods to the value or amount of all the moneys insm*ed thereon, and the said policy was made for their benefit and on their account. 5. Messrs. G. & F. subsequently sold the said subject-matter of insurance to the plaintiff, and assigned the said policy to the plaintiff so as to pass the beneficial interest in the said policy to the plaintifi" as the person entitled to the property thereby insured, and the plaintiff became and was then and thence, until and at the time of the loss hereinafter mentioned, inte- rested in the said goods to the value and amount of all tlie moneys insured thereon. 6. The said vessel with the said goods on board sailed from B. on the insured voyage on day of 1877, and after- wards during the continuance of the said risk, and whilst the said policy was in full force and effect, and whilst the said goods were covered thereby, the said vessel in the course of the voyage was stranded near C. by perils insured against Ijy the said policy, and a particular average loss under the said policy was caused by the said stranding. The said loss amounted to £200 and upwards. 7. The plaintiff also says that after the commencement and gg2 INSURANCE— MARINE POLICIES. On a ma- duriiin- tlic contimiaiico of the snid risk, and whilst the said KaslT^u? policy was in full ton^c and effect and the said goods covered thereby, a loss and misfortune occurred within the true intent and meaning of the said policy, and the plaintiff thereupon, by Ids factors, servants, and assigns in that behalf, did sue labour and travel in and a])out the defence, safeguard, and reco-\-ery of the said subject-matter of insurance, and necessarily incurred divers charges and expenses in so doing, amounting in the whole to £70, and tlie defendants became and are liable for the said charges and expenses to the plaintiff in respect of the moneys so insured by them as aforesaid. 8. The defendants have not paid the said sums of £200 and £70, or either of them, or any part of the same respectively. The plaintiff claims £330, with interest until payment. Sfaiemmi of Bpfmce. Defence. 1. The defendants deny the allegations in paragraphs 2 and 3^ of the statement of claim. 2. The defendants deny that the vessel was stranded as alleged in paragraph 6 of the statement of claim. 3. The defendants deny that there was any particular average loss or any loss under the said policy, and further deny that any particular average loss or any loss was caused by the stranding alleged in paragraph 6 of the statement of claim, i there was any such stranding. 4. The defendants deny that any loss or misfortune occurred within the true intent or meaning of the said policy, or that the plaintiff thereupon, by his factors, servants, or assigns in that behalf, did sue labour or travel in or about the defence, safeguard, or recovery of the subject-matter of in- surance, or necessarily incurred divers or any charges or ex- penses in so doing, or that they became or are liable for any averages or expenses to the plaintiff in respect of any moneys insured by them, and they deny the several allegations in para- graph 7 of the statement of claim. 5. If the plaintiff should be found entitled to recover any- thing in respect of the matters alleged by him in the state- ment of claim, the defendants further say that they do not admit the amount of the plaintiff's several claims. INSITEANCE— MABINE POLICIES. 383 Claim ly Princijml and Agent in the Alternative for Amount of Premiums of Insurance, or for Am-ounf of Notes (jiven for tlie same, ami on an Account stated (a). 1. The plaintiflFs Messrs. K. & Co. were and are merchants Alternative- carrying on business in London and Liverpool, and were and ^^^™.°y are the agents in this country of the plaintiffs the M. Insurance and agent Co., of New York, Mho carry on the business of marine in- .' ^^^' . ' . . miuras 01 sm'ers in Xew York and other places in the United States of insurance, America. 2. The defendant is a merchant or contractor, who formerly caiTied on business in America, and noAv carries on business in the City of London. 3. In the years 1870 and 1871, the defendant and the said company entered into certain contracts of insurance contained in certain policies and extensions indorsed upon the same, under which, in consideration of certain premiums which the defendant promised to pay to the said company, the said company undertook to insure the defendant to the extent set forth respectively in the said policies and extensions. Declara- tions of interest to a considerable amount were made fi-om time to time under the said policies and extensions. 4. Divers sums became and were due and payable from the defendant to the said company for and in respect of the premiums on so much of the said policies and extensions as were used by the defendant by means of the said declarations of interest. 5. Particulars of the said sums and meinoys appear by the indorsement on the writ herein. G. To meet the sums and moneys so due from the defendant to the said company the defendant, l)y A. U., his agent duly authorised in that behalf by a power of attorney dated the («) This moJc of joining plaintiffs would have been inadmissible before the Judicature Acts ; but now 1)y Order XVI. r. 1, "All persons may be joined as plaintiffs in whom the right tn any relief is alleged to exist, whether jointly, severally, or hi ilic alfy whicli the said ]wlicy was and is forfeited. 9. Tiie defendants do not admit that they entered into or took possession of the premises and the contents thereof, or that they continued in possession for a long or unreasonable time, or prevented tlie plaintiff from getting possession of the 392 INTERPLEADER. On a fire policy. Defence. said premises or the contents thereof after a reasonable and sufficient time had elapsed for purposes relating to or con- nected with the said insurance as alleged in the 8th paragraph of the statement of claim, or at all. 10. Under the circumstances herein appearing, the defen- dants deny that they exceeded the authority given by the said policy, or committed any wrongful acts or trespasses as alleged, and deny the several allegations in the 9 th paragraph of the statement of claim, or that the plaintiff has sustained the in- jm-ies or damages, or any of them, therein alleged. 11. If the plaintiff should prove that the defendants are in any way liable to the plaintiff on the said policy, the defendants, say that at the time of the alleged loss and damage there were other subsisting insurances covering the same property, and that the defendants, by the terms of the policy effected with the defendants, are not liable to pay or contribute more than the defendants' rateable proportion of the said alleged loss or damage. Re2)ly. The plaintiff joins issue on the statement of defence. Issue as to ownership of sliares. Interpleader («). Issue on Claim of Plaintiffs and Defendants to Shares. 1 Middlesex, ) The plaintiffs affirm and the defendants to wit. ) deny : — 1. That they (the plaintiffs) are the holders of 1200 shares {n) By Order I. rale 2, " With respect to interpleader, the procedure and practice now used by courts of Common Law under the Inter- pleader Acts, 1 k 2 Wm. IV. c. 58, and 23 & 24 Vict. c. 126, shall apply to all actions and all the divisions of the High Court of Justice, and the application by a defendant shall be made at any time after being served with a writ of summons, and before delivering a defence." As to the practice and procedure in the case of Interpleader, see the statutes mentioned in the above rule, and also an cxhaiastive examina- tion of the law and the decisions in Day's Common Law Procedure Acts, 4th cd., p. 353. See also the 6th su])section of the 25th clause of the .ludicature Act of 1873, as to interpleading in cases where there is a dispute as to the ownership of an assigned chose in action, and note thereon in Griffith's Judicature Acts, 2nd ed. p. 42. INTERPLEADEE. 393 in the Tewkesbury & Malrem Rail. Co., in respect of which Issue as to the Midland Rail. Co. have paid £1200 and £11 16s. into IJli^^^'J; Court. 2. That they are entitled to be registered as the holders of the said shares. 3. And that the said sums of £1200 and £11 IGs. are the property of the plaintiffs as against the defendants. And the defendants affinn, and the plamtiflfs deny : — 1. That they (the defendants) are the holders, or one of them is the holder of the said shares. 2. That they are entitled to be registered as the holders, or one of them is entitled to be registered as the holder of the said shares. 3. And that the said sum of £1200 and £11 IGs. are the property of the defendants, or one of them, as agamst the plaintiffs. And it has been ordered by the Honourable J\Ir. Baron Huddleston that the truth of the matters aforesaid shall be tried l)y a jury in ^Middlesex. Therefore let a juiy come, &c. Delivered the day of January, 1878. Interpleader Issue on Claim to Goods seized hj Sheriff. The 8th day of December, in the year of our Lord, 1877. London, ) E. C. affirms and S. ]\L and C. M. deny that certain Issue as to to mt. j goods or chattels and effects in and about certain pj^jgoj"^' rooms and premises in the occupation of N. G-., situate and taken in being at , in the city of London, seized in execution by ^^^'^^^ '°"' the sheriffs of London under a vrrit of _firri facias dated the twenty-eighth day of November, one thousand eight hundred and seventy-seven, and issued out of the Queen's Bench Divisioji of the High Court of Justice, directed to the said sheriffs for the having of execution of a judgment of that Court, recovered by the said S. M. and C. M. in an action at their suit against the said N. G., were at the time of the said seizure the property of the said E. C. as against the said S. M. and C. M. And it has l)een ordered ])y tlie Honourable 394 JUDGMENTS. Issue on claim to goods seized by sheriff. Issue on adverse claims to the same property. Mr. Justice Lush, pursuant to the statutes in that behalf, that the truth of the matters aforesaid shall be tried by a jury. Therefore let a jury come, &c. Interpleader Issue on Adverse Claims to the same Property. The 28th day of December, in the year of our Lord, 1877. London, ") E. B. F., by H. W. his solicitor, affirms, and The to wit. } P. S. and A. Company, Limited, deny that the said R. B. F. is entitled as against the said P. S. and A. Company, Limited, to certain goods, videlicet, 6000 iron bars, weighing 9G tons, which were delivered by the said company to the L. and N. W. Railway Co. for conveyance fi'om their station at W., in the county of S., to their P. station, in the county of M,, to be delivered to the order of one H. L., No. 05, H. Street, London. And it has been ordered by the Honourable Mr. Justice Field, pursuant to the statutes in that behalf, that the truth of the matters aforesaid shall be tried l)y a jury. Therefore let a jury come, &c. Action on a foreign judgment. Judgments («). Action on a Judgment ohtaitied in the Isle of Man. 1. The plaintiffs in this action are T. K., surviving partner of the firm of C. & K., and L. W., administrator of the estate of the late J. C, formerly a member of the said firm. On what judgments, &c., an action will lie. (a) Before the Judicature Acts came into force, actions on judgments of a Court of record must have been brought in the county where the Court in which the record was enrolled was situate, the reason being that the venue was local. See now, however, Order XXXVI. r. 1 , which abolishes the old rule as to local venue, and ante, p. 9.S. An action lies on the judgment of an inferior Court other than a County Court. {Brrhehy v. ElderhUi, 22 L. J. Q. B. 281.) ''Prima facie, an action will lie on the judgment of any court of competent jurisdiction." Ihhl. Per Lord Campbell, C. J. An action did not in general lie on the decree of a Court of equity. As under the Judicature Acts there are now no separate superior Courts, but only divisions of the High Court, that doctrine will no longer be held to apply. An action lies on the decree of a colonial Court of equity. (Ilenderxon, v. Ifcnderwii, c "n- afford ground for an applica'tion to set aside the judgment be raised by way peached on tlic nients. Defence that the judgment sued on does not exist. Of pay- ment. Of release. 396 JUDGMENTS. On a foreign juclgment. 3. On or about the 1st day of 1877, in the Isle of Man, in a suit depending between the now plaintiffs and the Tlie judg- of defence in an action on the judgment. But a matter which would be ment sueil a ground for an absolute and unconditional injunction against the con- on cannot tinuance of this action, and which even formerly might have been set np be im- as an equitable defence, may be set up as a defence ; or the defendant peached on niay claim an injunction on the strength of it in his statement of the merits, defence. Whether the former requirement, viz., that the facts must be such as to be ground for an ahxohdr mid micondit tonal injunction, would now be necessary for the purpose of a defence, it is not easy to determine. This would iK>t, however, apparently be necessary to found a claim to an injunction, as by the 2tjth section, sub-section 8, of the Judicature Act of 187:$, injunctions may be granted, either conditionally or uncondition- ally, by all the divisions of the High Court. A matter which is the subject of error cannot be set up as a defence to an action on the judgment. (Dick v. Tolliauxen, 4 H. & N. G'Ji5.) This rule l^^^^c principle already laid down that any matter which could have applies to been set up as a defence on the merits in the original action cannot be foreign pleaded to an action on the judgment, applies to actions on the judgments iud^ments of foreign Courts, {llrndpraon v. Henderson, 6 Q. B. 288 ; Dc Cosxe Bressnc v. IlatUoiu; 6 H. & N. 301 ; 30 L. J. Ex. 238 ; Munroc v. Pilk- ingtoH, 31 L. J. Q. B. 81. 89 ; Castriqvc v. Imric. 29 L. J. C. P. 321 ; 8 C. B. N. S. 1, 405.) Neither will a defendant be permitted to defend on the ground that the foreign judgment was erroneous in point of law and on the merits ; or that fresh evidence had been discovered since the judgment, showing it to be erroneous ; or for a mistake in the law of the foreign state in which the judgment was given (Miinroe v. Pilkington, 31 L. J. Q. B. 86, 89) ; or that evidence was admitted which would not be admis- sible by English law. {De Co-sse Bressac v. I?athbonr. sujira.) Grounds on A foreign judgment may, however, be impeached on any of the fol- which a lowing grounds, viz. : (l)thatthe Court had no jurisdiction in respect foreign of the matter of the suit or of the parties (tWgvson v. Mahon, 11 A. & judgment E. 179 ; and see liohcrt.ioii v. Strath, 5 Q. B. 941) ; (2) for errors on the may he face of the judgment, and for this purpose the reasons assigned in the impeached, judgment form part of it {lii'intcrs v. Briicc, 2(5 L. J. Chan. 19() ; 23 Beav. 150) ; (3) for repudiating English law where it was necessary to decide the case (lldmers v. Drucr, supra ; Semson v. Fogn, 29 L. J, C. 657 ; Mnnroe v. Pilkington, 31 L. J. Q^B. 81) ; (4) that the judgment was contrary to natural justice (Buchanan v. Ruckcr, 1 Camp. 63) ; (5) that the judgment was not final and conclusive {Patrick v. Shcddon, 2 E. & B. 14 ; Fraycs v. Worms, 10 C. B. N. S. 149 ; Phmmrry. Wood- hump, 4 B. &; C. 625) ; (6) tliat the defendant was not summoned, and had no notice of the proceedings {Jiitchanan v. Ritclccr, snpra ; Reynolds v. Fenton, 3 C. B. 187). It was laid down in Schibhy v. Wcstcnholz, L. R. 6 Q. B. 155, that a judgment of a foreign Court obtained in default of appearance against a defendant, cannot be enforced in an English Court where the defendant, at the time the suit commenced, was not a subject of nor resident in the country in which the judgment was ob- tained, for there existed nothing imposing on the defendant any duty to obey the judgment. (7) That the judgment was obtained hj fraud. {Ochscnbein v. Papclicr, L. K. 8 Ch. 695.) Other grounds on which foreign judgments may be controverted will be found stated 2 Smith's L. Cas., 7th ed., 823 — 825. And see Story's Conflict of Laws, 7th ed., p. 732. JUDGMENTS. 397 defendant in the Court of Chancery, being a Court of the said On a Island duly holden at C, and having: iurisdiction in that foi'fig'^ •' T judgment. behalf, the plaintiflFs recovered against the defendant by the judgment of the said Court, and according to the laws of the said Island, the sum of £200, with interest thereon from the 3rd day of December, 1877, until payment, and the amount of taxed costs of the suit, which sums of money, interest, and costs the defendant was by the said Court adjudged and •ordered to pay. 4. The said judgment is still in force and unsatisfied. The plaintiffs claim : — Stafement of Defence. 1. As to paragraph 3 of the statement of claim, the de- Defence, fendant denies that the said Court of Chancery was a Court duly holden and having jurisdiction as alleged. 2. As to paragraphs 3 and 4, the defendant says that the •said action was commenced according to the laws then and still in force in the said Isle of Man, by process and summons, and that the defendant was not at the time of the commencement thereof or for many years previously, namely, for ten years or thereabouts, domiciled within the jurisdiction of the said Court, and the defendant was not at any time before the recovery of the said judgment served with any process or summons in the said action, nor did the defendant appear in the said action, nor had he before the recovery of the said judgment any notice or It has been recently held in Godard v. Gray, L. R. 6 Q. B. 139, that a defendant cannot set i;p .'.s an excuse for not paying money .awarded by a judgment of a foreign tribunal having jurisdiction over him and the cause, that the judgment proceeded on a mistake as to English law, and that it made no difference that the mistake appeared ■on the face of the proceedings. The fact that an appeal is pending against the judgment cannot be made the ground of a defence to an action thereon, though it can be made the ground for Ktaviiig execution on the judgment in such action. <.1/««rw' V. I'ilkinr/ton, 31 L. J. Q. P.. 81.) Formerly, if it was desired to have execution on a judgment obtained in England on property in Ireland or Scotland, or conversely, it could not be done without lirst Vjringing an action on the judgment in the •country in which it was sought to have execution. Now, however, by 31 & 32 Vict. c. rj4, the holder of a judgment in one country can have execution on it by registering it in the country in which he wishes to issue execution. Appeal pending no defence. 398 LANDLORD AND TENANT. On a foreign jiulgiuent. Defence. knowledge of any process or summons, or of any proceedings in the said action, or any opportunity of defending himself therein. J^). The defendant says that he was not in any way subject to the laws of the said island at any time during the said action, nor was he then nor is he under any obligation to submit to the jurisdiction of the said Court of Chancery of the said island. If he was or is under any obligation to sub- mit to the jurisdiction of the said Court, which he denies, he repeats the allegation in the 2nd paragraph hereof contained, and says that the com-se of procedure which has been adopted is inconsistent with natural justice. 4. The defendant denies that the said sum of £200, or any part thereof, is due and owing from the defendant to the plain- tiff", as alleged, or otherwise. Claim for rent. Landlord and Tenant (a). Statement of Claim for Rent. 1. By an agreement in writing under the hands of the plaintiff" and defendant, dated the of 1876, the How rela- tion of landlord and tenant created. When it must be created bj' deed. («) The relation of landlord and tenant is constituted either by deed^ writing, or parol agreement, accjampanied or followed in each case by delivery of possession. In two cases, viz., tenancy at will and tenancy by sufferance, it arises apart from any express agreement. Leases for a term not exceeding three years from the making thereof, whereupon the rent reserved during such term shall amount to two-thirds of the full improved value of the thing demised, may be either by agree- ment in writing .simply or by word of mouth (29 Car. 2, c. 3, ss. 1 and 2), All leases for above that period are required by the statute just mentioned to be in writing, signed by the parties making the same, oi' their agents authorised by writing, and if they are not so made, they will only create tenancies at will. And now by the 8 & 9 Vict. c. 106, s. 3, it is provided that leases required by law (?. c, by the Statute of Frauds, 29 Car. 2, c. 3) to be in writing, shall be void at law, unless they are made by deed. It has, however, been held that an instrument pur- porting to be a lease for over three years was good in equity, as an agreement for a lease on which specific performance could be decreed. (Rollasmi v. Leon, 7 H. & N. 73.) Now that the distinctions be- tween the doctrines of law and equity are abolished, and those of the former which were in conflict with the latter are no longer to have any effect in any Court, it follows that such instruments would not be treated as void in the Common Law Divisions. LANDLORD AND TENANT. 399 plaintiff agreed to let and the defendant agreed to take the claim for messuage or dwelling-house and shop, with the cottage in rent. Leases of incorporeal hereditaments, such as of tithes, or of the right to shoot over land for even the shortest period, require to be by deed. {Gardiner v. WUUamson, 2 B. & Ad. 33() ; Bird v. Iligginson, 6 A. & E. 824.) WTiere a lease is in two parts, one party executing each part, if there is a material variation between the two parts, it is void for want of mutiiality. (Wijnne".-^ Case, L. R. 8 Ch. 1002.) The persons who are immediately entitled to bring actions and liable to be sued on the covenants in leases are the lessor and lessee and their assignees. At common law certain covenants " run " with the land or thing de- mised, i. <•., the burthen and benefit of the covenants pass to the assignees of the leases. These covenants are :— 1st. Where the covenant refers to a thing in esse, parcel of the thing demised, as to keep a house on the demised premises in repair. The benefit of this covenant passes to the assignee of the lease, even though the word " assigns " be not used in the covenant. 2nd. If the covenant relates to something to be done on the land demised, as to build a wall thereon, it runs to the assignee, if the covenant has been made for the lessee and his assigns. Covenants of this kind did not. however, run with the rever- sioii^ i. c, pass to the assignee thereof, until the 32 H. 8, c. 34 pro- vided that such assignees should be entitled to the same rights and sub- ject to the same liabilities on covenants in the lease as their assignors. It has been held that this statute only applied to covenants running with the land. (See Spencers aixe, 1 Smith's L. C. 7th ed.t 00.) Liabilities on execution of lease or ai/rcement.] — The lessor binds him- self to give the party to whom he demises ])ossession, and not a mere right to take possession from a wrongdoer by an action of ejectment, and the lessee binds himself to accept possession and pay the rent. {Stanley V. Hayes, 3 Q. B. 105.) If a party agrees to take a house from a particu- lar day, provided certain things are then done by the landlord, and the things are not done, he may decline to take possession. (Tidey v. Mollett, 33 L° J. C. P. 235.) A person who has contracted orally for the hire of realty, and who neglects or refuses to accept possession, cannot be sued on such agreement for not taking possession, nor on any oral promise to pay rent, nor for use and occupation. (Addison on Contracts, 7th ed. 555.) Covenants hy lessor— Quiet etijoyment.] — Apart from an express covenant for ([uiet enjoyment, the use of the word "demise" or " let " in an indenture of lease imports such a covenant. {Hall v. City of London Brenery, 31 L. J. Q. B. 257.) But if there be an express cove- nant either as to quiet possession or title, no implication arises from these words, {Line v. Stephenson, 5 Bing. N. C. 183 ; Adams v. fribney, 6 Bing. 65(1.) The liability on implied covenants is confined to the lessor, and does not attach to his'executors. {Adams v. Gihney, snpra.) On a panjl demise the law implies a promise of quiet enjoyment, but not for good title. {Bandy v. Cartmright, 8 Ex. 913.) There is no implied warranty in a lease of a house or land, that it is reasonably fit for habitation or cultivation. {Sutton v. Temple, 12 M. & W. 52 ; Hart v. Windsor, ib. &H.) It is different where there is a contract for letting a house and furniture ; and if they are unfit at the commencement of the term the tenant does not oljtaiii that for which he contracted, and may rescind the agreement. ( Wilson v, Fineh-JIatton, 4G L. J, 489.) What constitutes a breach of covenant or promise for quiet enjoy- ment.]— This being a covenant against disturbance by any person having When covenants " run " with the land. Lessor bound to give possession. When lessee is not bound to enter. The cove- nant for quiet enjoyment. No im- plied war- ranty of fitnes.s for habitation, &c. 400 LANDLORD AND TENANT. Claim for rent. the rear thereof, in Bisliop's-court, with the appurtenances tliereto, situate and being No. — , Old Bailey, in the eity of What is a breach of covenant for quiet enjoyment. Damages recovei-ed liy lessee. On a cove- nant to pay rent lessee remains liable even after as- signment. lawful title, will not be broken by a tortious disturbance by a stranger. DiulJry V. FoUrot, ;S T. K. .587. A covenant tor ([uict enjoyment against A., " and all persons by bis means, title, or procm-ement," is violated by an entry by A.'s wife, in whose name A. purchased jointly with his own. {Butler V. Smtierton, Palm. 339.) An entry on the demised premises and distress for land-tax due from the lessor before the demise is not a breach of the covenant, for that is not by a ])erson claiming through but against him. (Stanley \. Hayes, 3 Q. B. 10.5.) But semhle if the tenant jjays out the distress he may recover the amount against his lessor as monej"^ which the lessor was legally compellable to pay. and the tenant has been compelled to paj'. An entry by a person claiming through the lessor is not the less a breach because the lessee has instigated it. ( Young v. Eauicock, 7 C. B. 310). Merely forbidding the tenant's subtenant to pay him rent is not a breach. {WiteJicot v. Lhwsey, 1 Browl. 81.) Re- straining the tenant by means of legal proceedings not from the pos- session but fi'om enjoying the premises in a particular manner, as using them as a beershop, is not a breach. (Dennett \. Atlierto/i,!,. R. 7 Q. B. 31C>, Ex. Ch.) A refusal by a lessor to give or to allow the plaintiff to take possession, caiinot be made the ground of an action for breach of covenant or promise for quiet enjoyment. (IlanJies v. Ortun, 5 Ad. & E. 307.) This action may be brought on the covenant for quiet enjoyment implied from the word demise. (Com. Dig. Gov. (A. 4) ). And an action for breach of contract for quiet enjoyment lies on the promise of quiet enjovment implied from a parol demise. (Bandy v. Carttcright, 22 L. J. Ex. 285 ; Hall v. CUy of London Bren-ery Co., 31 L. J. Q. B. 257.) Measure of damages.'] — Where the tenant was sued for trespass by another person claiming under the lessor, and gave notice of the action to him (lessor), but the latter took no notice thereof, and the tenant then defended the action, and a verdict was recovered against him, it was held in an action by the tenant against the lessor, that the plaintiff was entitled to recover the amount of the verdict and costs, his own costs in defending the action, compensation for the loss of the land, and also the value of a conservatory he had erected. (Bolj)h v. Croueh, L. R. 3 Ex, 44. And see Moors-le-Blanch v. Wilson, L. R. 8 C. P. 227.) Covenants or jf >'(>»' '-^c-^ of tenant — 1st. rent.'] — The lessor can recover rent accrued due under a demise whether by deed or simple contract, and whether there has been an actual occupation under the demise or not. (1 Wms. Saund. 202, a, n, 1.) When the demise is by deed, and there is a covenant for the jiayment of rent, though the lessee may have assigned the lease, and the landlord ha^^-e accepted the assignee, the lessee remains liable (1 Wms. Saund. 240 ; 2 Wms. Saund. 302, n. (5) ), and usually protects himself in such circumstances by a covenant by the assignee to indemnify him. There is, however, an implied promise to indemnify. (See " Jloney.") The mere reservation of rent in a lease by deed, in the absence of a covenant for jiayment of it, would not render the lessee liable after assignment. ( Wadham. v. Marlowe, 8 East, 314.) It is no defence to an action for rent that the defendant was induced to take the lease by the plaintiff's fraud. (Ferct v. Hill, 23 L. J. C. P. 185.) An informality in the execution of a lease by the lessor will not affect the lessee's covenants, whether to pay rent or otherwise. (Toler v. Slater, L. R. 3 Q. B. 42.) LANDLORD AND TENANT. 401 London, for the term of three years fi-oni the date thereof, at claim for the yearly rent of £105, the first yeai-'s rent to be paid in ad- ^^''t- Liahility for repairs.'] — It is usual in leases of houses to introduce a Liability covenant to repair during the term, and to leave in a proper state of of tenant reparation, and also a covenant to repair after notice. These covenants for repairs, are usually distinct and independent, but they may be so framed as only to form one covenant, so that the one is enerafted on the other. In the former case a tenant is liable for non-repair, though no notice to repair has been given ; but in the latter case no liability arises until after iiotice to repair has been given. (See Woodfall's Landlord and Tenant, j). 486, 9th ed., for the tests for determining when the covenants are separate and when dependent.) A breach of covenant to /(//f in rfpnir is not a continuing breach. {Coward v. Gregory, L. W. 2 C. P. IHS.) No contract to repair is implied from the fact of the relation of land- lord and tenant being created. {Standen v. C'hrisfinax, 10 Q. B. 135; and see Granger v. Collins, G M. & W. 458.) Where the tenant covenanted to keep the demised premi.ses in repair, the same being first put into repair by the landlord, the repairing by the landlord is a condition precedent to the tenant's obligation on the cove- nant. {Ncale\. llatcliffe. 20 L. J. Q. B. 130 : Coivardx. Gregory, siqva.) Measure of damage.] — In actions for breaches of covenant or promise Measure of to repair, the measure of damages during the continuance of the lease is ciama<'es the .diminution of the value of the reversion. {Turner v. Liimh, 14 [^ actions M. & W. 412 ; Doe v. Boivlands, 1) C. & P. 734 ; Smith v. Peat, 23 L. J. fo^ non- Ex. 84 ; Mills v. East London Union, L. R. 8 C. P. 79 ; Williams v. repair Williams, L. R. 9 C. P. G59.) Where the landlord's interest in the lease is determined by forfeiture or otherwise, the preceding test would be in- applicable, and the measure of damages would be the sum it would cost to put the premises in the state of repair agreed upon. {Dories v. Under- wood, 27 L. J. Ex. 113 ; 2 H. & il. '>10.) The mcaoure of damage also State of depends on the state of the premises on the creation of the tenancy, the jjremises tenant's liability being measured by reference to the condition of the at com- l)remises at that time. (Payne v. Ilaine, IG M. & W. 541 ; Stanley v. mencement Ton-good, 3 Bing. N. C. 4 ; Burdett v. Withers, 7 A. & E. 13(;.) The of tenancy fact that the dilajjidation prevented the landlord from letting, may to be con- semhle be considered where special damages are claimed. ( Woods v. sidered. Page. 1 Bing. N. C. 4G7.) If a second action be brought on a covenant to keep in repair, the verdict in the former action may be given in evidence in mitigation of damages. [Coward v. Gregory, supra.) Where the tenant has sublet, and the underlessee has neglected to Tenant repair, the tenant in an action against him may claim as special damage, may re- the forfeiture of his lease on account of the breach of covenant. (Chnr cover from V. Jirogden, 2 M. & G. 39), or the loss .su.stained by him through being sub-tenant sued for breach of the covenant to repair. ( WaUter v. Hatton. 10 >I. & W. for forfei- 249.) ture of In cases where the lessor covenants to rcj)air, the tenant, in an action lease for for non-repair, may allege as si)ccial damage that he was unable to carry non-repair, on his trade in the premises, and was obliged to remove. ( Green v. Eales, 2 Q. B. 225.) Covenant to insure.']— T\\& covenant to keep buildings insured against Covenant fire runs with the land, as the 14 Geo. 3, c. 78, s. 83, enables the land- to insure lord to have the insurance money laid out in rein.stating the jjremises, runs with 60 that the covenant with the aid of the statute amounts to a cove- Ian B. & A. 1.) The ojjeration of this section is not confined to the metropolitan district. {Ex j'arte Gorlry, 34L. J. Bkcy. 1.) A covenant " to insure at all times previously to the expiration of the D D 402 LANDLOKD AND TENANT. Claim for rent. vanco, and the rent during the residue of the said term to be paid quarterly, the first of such quarterly payments to be made Covenant to cultivate in hus- bandlike manner. Covenant not to carry on 1 articular trade. Covenant not to itssign. Where as- signment subject to consent. term," is satisfied by an insurance within a reasonably short time after the execution of the lease. A covenant to insure in the name of A. is not satisfied by an insurance in the joint names of A. and the lessee. (^Pcnnial v. Ilarbornc, 11 Q. B- 368. But see Havens v. MUldlrtoii, 22 L. J. Ch. 746.) Covendiif fo cultiratc in a hni Q. B. 460, Ex. Ch.) The assignee can resist an action for breach of covenant by showing that he assigned away before breach, as he is only liable for breaches during the time he is assignee. {Paul v. Nurse, 8 B. & C. 486.) The execution of the assignment is sufficient without delivery of it to Assign- the assignee, as where it remains in the hands of the assignee's solicitor, ment to who kept it under a lieu. {Odcll v. Wahe, 3 Camp. 394.) Notice of the pauper not aKsignnient to tlie plaintiff is uiuiecessary. The fact that the assignment invalid on was made to a man of straw in (jrder to get rid of the liability would not ground of affect its validity as amounting to a fraud. {Lekeux v. Nash, 2 Str. fraud. 1221 ; Onslow v. C'orrie, 2 Madd. 330.) But if there was a secret trust in favour of tie assignor, this woidd be a fraud, and would avoid the 1) D 2 404 LANDLORD AND TENANT. Claim for rent. 2. The defendant took possession nnder the said agreement of the premises therein mentioned, and paid rent for the same Actions for double rent. 11 Geo. 2, c. 19. Act only applies where tenant lias given valid notice. Landlord may claim special damage for overhold- ing inde- pendently of Act. Actions for double value. 4 Geo. 2, c. 28. assignment. (Ex j^arte Biidd, 31 L. J. Ch. 4, and Ux parte Bugg, 35 L. J. Ch. 43.) The assignee may after the assignment be sued fur breaches by him before assignment, (Ilarley v. Mng, 2 C. M. & K. 18.) An assignee is not liable for breaches committed before the assignment to him. (See Coward v. Gregory, L. R. 2 C. P. 153.) Actions for double rent.'] — By the 11 Geo. 2, c. 19, s. 18, " in case any tenant or tenants shall give notice of his. her, or their intention to quit the premises by him, her, or them holden at a time mentioned in such notice, and shall not accordingly deliver up the possession thereof at the time in such notice contained, that then the said tenant or tenants, his. her, or their executors or administrators shall from thence-forvi^ard i)ay to the landlord or landlords, lessor or lessors, double the rent or sum which he, she, or they should otherwise have paid, to be levied, sued for, and recovered at the same time and in the same manner as the single rent or sum before the giving such notice, could be levied, sued for, and recovered ; and such double rent or sum shall continue to be paid during all the time such tenant or tenants shall continue in possession as aforesaid." It has been held that this statute only applies where the tenant had the power of determining his tenancy by notice, and has given a valid notice for that j)urpose. (Johnstone v. J/vddlestone, 4 B. & C. 922.) To bring a case within this provision, the holding over must be wilfid and contumaceous, and not either by mistake or bond fide though unfounded claim of right. (Wright v. Smith, 5 Esp. 203 ; Swinfcn v. Bacon, 30 L. J. Ex. 33 and 3fi8.) A person to whom the landlord granted a lease to commence on the determination of the defendant's tenancy is not a person entitled to the possession within the meaning of the above enactment, and cannot con- sequently maintain an action for double value under it. (Blatchford v. Cole, 28 L. J. C. P. 140.) The double value given by this Act is in the nature of a penalty, and therefore action must be brought to recover it within two years. Independently of this provision a landlord may claim special damages from an overholding tenant in respect of damages, to which he has been rendered liable to a third person, to whom he has let the premises, and is unable to deliver possession in consequence of the defendant holding over. (Bramlcy v. Chester den, 27 L. J. C. P. 23.) Actions for double value.']— By 4 Geo. 2, c. 28, s. 1, it is provided that " in case any tenant or tenants for any term for life, lives, or years, or other person or persons who are or shall come into possession of any lands, tenements, or hereditaments by, from, or under or by collusion with such tenant or tenants, shall wilfully hold over any lands, tene- ments or hereditaments after the determination of such term or terms, and after demand made and notice in writing given, for delivering the possession thereof by his or their landlords or lessors, or the person (ir persons to whom the remainder or reversion of such lands, tenements, or hereditaments shall belong, his or their agent or agents thereunto law- fully authorized, then and in such case such person or persons'so holding over shall, for and during the time he, she, and they shall so hold over, or keep the ])erson or persons entitled out of possession of the said lands, tenements, and hereditaments as aforesaid, pay to the person or persons so kept out of possession, their executors, administrators, or assigns, at the rate of double the yearly value of the lands, tenements, and heredita- ments so detained, for so long time as the same are detained, to be recovered in any of His Majesty's Courts of Piecord liy action of debt, LANDLOED AND TENANT. 40^ Claim for rent and royalties ' on lease of mine, ami breach of covenant to work in miner-like manner. to the plaintiff pursuant to the terms thereof during a certain claim for period of the said term. ^^ii*' :). On the 29th of , 1877, a quarter's rent became due, and the same is stiU due and unpaid. Tlie plaintiff claims : — £ , the said quarter's rent. Actio/) for Rent and Royalty on Lease of Colliery, and for Breach of Covenajit to Work it in Miner-like manner. 1 . The plaintiff" is owner in fee and sole surviving lessor of certain mines, seams, beds, and strata of coal under seven closes in the to\\'nship of B., in the parish of S., in the county of S. The defendants are the assignees of the lease of the said pre- mises hereinafter mentioned. 2. By indenture of lease, bearing date of March, 18 07, the plaintiff" and one J. M., since deceased, granted, demised, and leased the aforesaid premises to W. S. and J. B., their exe- cutors, administrators, and assigns, for the term of twenty-one years from the 1st day of July, 18(57, with liberty to enter upon the land and work the said minerals at a yearly rent or royalty of £ per foot of thickness for every statute acre surface measure of coal worked or gotten during the said term, ( such coal to be measured as iii the said lease agreed), and at a yearly rent of £150, or such part thereof as with the said rent 'cn- drt; claims to . . . . . Constables, action against County Court Acts, action against persons for anything done in pur- suance of Copyhold fine Copyright, action for infringement of Corporate offices and franchises, in- formation for usurping Covenant, action of . . . . Crown, suits by, relating to land . Debt (if not on specialty) . . . on specialty. See Bond. qui tarn. .See Penal Statutes. Deed Defamation. See Idhel ; Slander. Detinue Distress, action for wrongful. See Trespaas. Dower Easement. See Trespass ; Case. Ecclesiastical Courts : — For incon- tinence or brawling by a clerk in holy orders, striking in church, fornication. &c. . . . , Period of Limitation, — Statute or Autliority. Within six years from the expiration of that period after demand.. Ihid. Twenty years. 3 & 4 Wm. 4, c, 42, s. 3. Six years. 21 Jac. 1, c. 16, s. 3^ and 3 & 4 Anne, c. 9, s. 2. Six years from refusal to pa3^ Ibid. Six years from payment by banker. Ibid. ; and see GardoiiY. BrncOf L. R. 3 C. P. 300. These cannot be defeated after thirty years' enjoyment by show- ing their first enjoyment at any prior period. Sixty years' enjoy- ment gives an indefeasible right, unless under written agree- ment. 2 & 3 Wm. 4, c. 71, s. 1. Six calendar months, and one month's notice of action. 24 Geo. II. c. 6 ; 7 & 8 Geo. 4,. cc. 29, 30. Within three calendar months. 9 & 10 Vict. c. 95, s. 138. Six years. 3 & 4 Wm. 4, c. 42^ s. 3. Twelve calendar months after ac- cruing of cause of action. 5 &; (> Vict. c. 45, s. 26. Six years. 32 Geo. 3, c. 58. Twenty years, 3 & 4 Wm. 4, c. 42, s. 3. Sixty years next before suit or claim. 9 Geo. 3, c. 16 ; 24 & 2.'> Vict, c, 62. Six years. 21 Jac. 1, c. 16, s. 3. Twenty years. 3 & 4 Wm. 4, c. 92, s. 3. Twenty years. Ibid. Six years. 21 Jac. 1, c. 16, s. 3. No arrears or damages on account thereof can be recovered for more than six years ; but sixty years- to bring the action. 3 & 4' Wm, 4, c. 27, s. 41. Eight calendar months. 27 Geo. 3. c. 44. LIMITATION. 415 Action. Period of Limitation. — Statute or Authority. Ecclesiastical or eleemosynary cor- poration sole recovering land or rent Ejectment Escape, action for . . . . Executors or administrators. And see " Injuries to Testator's or Intestate's Eeal Estate," infra. Execution False imprisonment. See Assault. Fi.fa.,va.onej levied on any -writ of, action for Francliises, claims to . . . Hundred, action against, for damages done by rioters . . . . Indemnity Injuries. Sec Actions vndrr various headings, r.g., As.fatdt, Sfc. Injuries to testator or intestate's real estate Actions of tort against executor or administrator, for wrong done by testator or intestate to real or |)ersonal property of others Judgment, revival of . . . . Joatices of the peace, actions against "Within two incumbencies and six years after a third incumbent ap- pointed, if these periods together amount to sixty years ; if not, then such further time in addi- tion as will make up sixty years. 3 .<: 4 Wm. 4, c. 27, s. 29. Twenty years, ten years allowed from ceasing of disabilities, but never to exceed forty vearsin all. 3 & 4 Wm. 4, c. 27, ss."2, ct seq. Six years, 3 & 4 Wm. 4, c. 42, s. 3. If time have not expired before testator's or intestate's death, then at any time within a year after his death. Ibid. s. 2. Six years fi'om judgment unless by leave. Jud. Act, 1875, Order XLII. rr. 18 and 19. Six years. 3 & 4 Wm. 4, c. 42, ss. 3 to 7. They shall not be defeated after thirty years' uninterrupted enjoy- ment, by sho^ving benefits first enjoyed previous to such period ; sixty years' enjoyment confers an indefeasible right, unless under express agreement by deed or writiiio-. 2 & 3 Wm. 4, c. 71, s. 1. Three calendar months. 7 & 8 Geo. 4, c. 31, s. 3. Six years from date of damnifica- tion. 21 Jac. 1, c. 16, and sec lieynolds v. Duylc, 1 M. & Gr. 753. If injury committed within six months before his death, then within a year after his death. 3 Jc 4 Wm."3, c. 42, s. 2. If done within six months of his death, then within six calendar months after entering upon office, provided the damages rank as simple contract del)ts. Every six years. 15 k. K! Vict. c. 76, s. 128 ; and Jud. Act, 1875, Order XLII. r. 18. Six calendar months, and one month's notice of action. II & 12 Vict.c. 44, ss. 8,9. Table of Statutes of Limitation. 416 LIMITATION. Table of Statutes of Limitation. Action. Land, right of entry for the re- covery of civil right of Crown in suits for Legacies Libel Light and Air, right to . . . Local authorities acting under Public Health Act, 1875, actions against . . . . . Mandamus Merchants' accounts Mortgaged lands, action to recover, Nuisance. See Case. Penal Actions , , Personal estate of intestate, suit to recover from legal personal repre- sentative Where persons killed by accidents caused by negligence, which would have entitled them to have brought actions if death had not ensued an action may be brought for the benefit of the wife, husband, parent, or child, &c., by the executor or adminis- trator of the deceased . Promissory note. See Bill of Ex- change. Period of Jjimitation. — Statute or Autliority. Twenty years. No descent cast or discontinuance after 31st Dec, 1838, shall defeat it. (But see 37 & 38 Vict. c. .')7.) 3 & 4 Wm. 4, c. 27, ss. 2 and 39. Sixty years. 9 Geo. 3, c. 16. Twenty years. Ihid. s. 40. Six years. 21 Jac. 1, c. 16, s. 3. After twenty years uninterrupted enjoyment ; no disability pre- vents the running of this time. 2 & 3 Wm. 4, 0. 71, s. 3. Six months. 38 & 39 Vict. c. 55, s. 264. Not after many years' delay. No statute. Rex v. TIte Commh-- sioners of Coclicrmouth Inclosure Act, 1 Barn. & Adol. 387. Six years. 19 & 20 Vict. c. 97, s. 9. Within twenty years next after the la.st payment of any part of the principal money or interest. 3 & 4 Wm. 4, c. 27, s. 1, interpreted by 7 Wm. 4 & 1 Vict. c. 28. Two 3'ears when forfeiture goes to Crown ; one year when it goes to Crown and prosecutor, and in default, then within two years by Crown. 31 Eliz. c. 5, s. 5, and 3 & 4 Wm. 4, c. 42, s. 3. Twenty years after accruing of right to a person capable of giving a discharge ; or if in meantime some part or interest in such estate has been accounted for or paid, or an acknowledgment in writing, signed by the person liable or his agent, has been given to the person entitled or his agent, twenty years after the last accounting, payment, or acknow- ledgment. 23 & 24 Vict. c. 38, s. 13. Twelve calendar months after their death. 9 & 10 Vict. c. 93. 8. 3 ; and see 27 & 28 Vict. c. 95, s. 1, which provides that where there is no executor, &c., or he does not bring an action within .«!.?• montJts, the persons beneficially interested may do so. LIMITATION. 417 Period of Limitation. — Statute or Autliorityi Public Health Act, 1875, actions against persons acting under Public, local, and personal, or local and personal acts, action for any- thing done in pursuance of any . Qui tarn. See Penal Actions, sjqjra. Quit-rent, action of debt for . Quo warranto Keal property, actions relating to Kecognizances, proceedings upon . Eecovery of land. See Eject- ment. Rent due under lease by deed by pai'ol do. . . . . charge, proceeding for, secured by deed Replevin Scire facias on a recognizance Seduction Service, Loss of. See SeductUm. Slander, verbal (unle>s special damage) if special damage , . . Tithe, suit to recover the value of any , Trespass {except assault, batteiy, wounding, or false imprisonment) i.e., qua re cl. fr. and de honis a4j)ortatis Trespass for mesne profits . , . Trover Way or watercourse, right of , . "Words, Sec Slander. Wounding, See Assault. Six months, 38 & 39 Vict, c, 55, s. 264. Two years, or in case of continuing damage, then within one year after such damage shall have ceased. 5 x 6 Vict. c. 97, s, 5, Six years, 21 Jac. 1, c, 16, s, 3, One year. 7 Wm, 4 & 1 Vict, c, 78, and 6 & 7 Vict, c, 89, Twenty years after right accrued. ■ride siqjra. 3 \: 4 Wm, 4, c. 27. Twenty vears. 3 & 4 Wm. 4, c, 42, s, 3, Twenty years. Ibid. Six years. 3 & 4 Wm, 4, c, 27, s. 42. Twenty years, 3 & 4 Wm, 4, c. 42, s. 3. Six years. 21 Jac, 1, c. 16, s, 3, Twenty years. 3 & 4 Wm, 4, c, 42, ss. 3 to 7, Six years. 21 Jac. 1, c, 16, s. 3. Two years. Ibid. Six years. See Case. Six years. Ibid. Six years. 21 Jac, 1, c, 16, s, 3. Six years' arrears. Ibid. Six years. Ibid. It shall not be defeated after tAventy years' uniDterru]jted enjoyment, by showing its Jirst enjoyment, prior to such period. Forty years' enjoyment gives an absolute and indefeasible right, iniless mider an express agreement, by deed or writing, 2 & 3 Wm, 4, c. 71, s, 2, Four years. Ibid. Table of Statutes of Limita- tion. (fl) From wlmt time statutes ?•««.]— The statutes begin to run from From the breach of tlie covenant or contract, and not from the discovery of it, wliat time as where a neglect of duty by an attorney was not discovered until after statutes six years ; (SJuirt v. McCartJnj, 8 B. & A. 62G ; Cohen v. Buckle, 8 run in M. & W. 080), even though the defendant lias fraudulently concealed the case of cause of action. (Imperial (las Co. v. London (nis Co., 10 Ex. 39 ; 23 contracts. L, J. Ex. 303.) In case of breach of contract to deliver goods, the statute 418 LIMITATION. From wluit time statutes begin to run. "When statutes begin to run in case of torts. "When cuiTency of statutes susijended. Where one joint debtor beyond seas, suspended only as to him. Meaning of ' ' beyond seas." runs from the breach, though there has been a subsequent request for de- livery /v'wa fac'w as i)aid on account of the debt not barred. (Per Lord Cranworth, ' Xaxh v. Hodgson, 6 D. M. & G. 474, 482 ; 2,-> L. J. Ch. 186, 188.) Part payment in goods is equivalent to part payment in money. {Hooper v. Stevens, 4 Ad. & E. 71.) So part payment by bill or note if so made as to imply a promise to pay the remainder, even though the bill or note may not be eventually paid. (Turneij v. Dodwell, 3 E. & B. 136 : 28 L. J. Q. B. 187.) In such case the part payment operates from the delivei-v of the bill or note, and not from the date when it falls due. {Irving v." Vitch, 8 M. & W. 90.) Payment by an authorised agent is generally payment by the principal ; and the authority is a question for the jury. But where the defendant authorised an agent to offer a payment of a lesser sum in discharge of the whole debt, but the creditor declined, and the agent in excess of his authority paid tlie sum in ]iart discharge, this was held insufficient to rcAdve the claim. {Linsellx. Bon-wr, 2 N. C. 241.) By and to 7vhom payment must he made.'] — The payment need not be made by the debtor or person who incurred the debt, if clearly made on account of the debt, and on behalf of the person or persons liable for it. Thus payment of interest by the vestry or overseers for the time being of a parish on bills given by former overseers to secure an advance to the parish is sufficien't. {Rem v. Pettet, 1 A. & E. 196.) Where, however, a payment is made to the creditor to the use of the debtor by a third person, it cannot be appropriated by the creditor so as to bar the statute. ( Waller v. Lacy, 1 M. & G. 54.) And where A. gave B. a promissory note in order to get an advance on it from B.'s banker, and B. indorsed it to his banker, who credited him with the amount, a pay- ment of interest by B. within the six years did not keep alive the banker's claim against A. on the bill, {Harding v. Edgecumie, 28 L. J. Ex. 818.) By the Mercantile Law Amendment Act, 1856, where there are several co-contractors or co-debtors bound or liable jointly only or jointly and severally, or executors or administrators of any contractor, no such co- contractor, co-debtor, executor, or administrator shall lose the benefit of the Statute of Limitations by reason of any payment by any other co- contractor, &c. It has been hold that this provision applies even where such payment has been made, with the knowledge and consent of the defendant co-contractor, &c. (I'er Crompton J., in /«r/.'.w;4 v. M'ooley, 8 E. Ac B. 788—4 ; 27 L. J. Q. B. 182.) On the other hand the payment need not be made to the creditor. Thus a payment made to one of several legatees on account of principal and interest due on a promissory note given to the trustees of such legatees to secure trust money lent to the defendant, was held sufficient to revive the debt. {Megginxon v. Harper, 2 C'r. k. M. 322.) So, payment on a note to an administrator who ha(l not taken out administration in the diocese where the note was a honum notahile, was sufficient to revive £ E 2 Revival by subsequent payment. Where two debts and cue barred, effect of a payment made generally. Payment by agent sufficient unless authority exceeded. Payment need not be made by debtor. Payment by one co-debtor does not revive statute against others. Payment need not be made to creditor. 4.20 LIMITATION. Evidence cf payment. Revival by acknow- ledgment or promise. Distinction between effect of promise and that of acknow- ledgment. Evidence of promise or acknow- ledgment. Acknow- ledgment, &c., by agent sufficient. the dcljt in favour of a subsequent administrator dc bonis noii. (^Clark\. JJofljM'r. 10 Bing. 480.) Ecidcncc of ])aymcnt.'] — It is not within the scope of this work to enter into the evidence necessary to sustain any allegation in the pleadings, and the practitioner is therefore referred to works bearing on this subject. It may, however, be as well pointed out that the !) Geo. 4, c. 14, which required acknowledgments or promises hij irorch only to be by writing signed by the defendant in order to keep alive or revive or create a claim which would be otherwise l)arred, did not, by its very terms, include acknowledgments by ])ayments, and the third section of the Act expressly excluded the effect of payments from its operation, and the 3rd section of that Act provides that a memorandum or indorsement of any payment on a bill, note, or other writing by the person to whom such I>ayment was made shoukl not be sufficient evidence of a payment so as to recover a debt barred by statute. Such payments may, however, be proved by an oral admission of the defendant. {Cleave v. Jones, G Ex. 573.) Revival hy achnon-ledgmcnt or 2)vo)nisp.^ — It is as well at once to point out a distinction which does not seem to be indicated with sufficient clearness by writers on practice, though enunciated with much distinct- ness and emphasis by some of the judges, between the effect of promises to pay and acknowledgments of the debt. The effect of the latter is strictly to revive the barred debt, and give it new life from the time of the acknowledgment ; the effect of a promise to pay is to create a new debt, but not to revive the old one, which has no connection with the new debt created, except as sup])lying the consideration which makes the pro- mise binding in law ; and this is believed to be the only instance in which a merely moral consideration is sufficient to support an express promise. This important consequence flows from the distinction here pointed out that in the case of acknowledgments the old liability is revived without any modification as to its amount or character ; whereas in the case of promises the new obligation will depend on the terms of the promise. Thus the promise may be to pay it in futuro, or by instalments, or on the happening of a condition ; which could not be the case if it were a revival of the old debt. The statute docs not begin to run in such cases until the time has elapsed or the condition happened. Where a person promises to pay a barred debt when he is able, the statute begins to run from the time he so becomes able. ( Waters v. Earl of llianet, 2 Q. B. 7.57 ; Hammond v. Smith, 33 Beav. 452.) See an admirable exposition of the distinction here referred to, i)er Wigram,. V.-C. Phillips v. Philips. 3 Hare, 281, 2i»!). And see Tanner v. Smart. G B. & 0. 603 ; and Bvch- ■ma.stcr v. Russell, 10 C. B. N. S. 745, where Williams, J., expresses his full concurrence with the views of Wigram, V.-C. Pkidence ofjJromise or aclmowledgment.'] — By the 9 Geo. 4, c. 14 (Lord Tenterden's Act), s. 1, " In actions of debt or upon the case grounded on any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract whereby to take any case out of the operation of 21 Jac. 1, c. 16, 'unless such acknowledgment or jjromise shall be made or contained in some writing to be signed by the party chargeable thereby." By s. 8, such acknowledgments or promises need not be stamped. However, an un- stamped promissory note cannot be used to show an acknowledg- ment, as it has been held that the section does not exempt such an- instrument from its appropriate stamps. {Jones v. Pyde-r, 4 M. & W. 32 ; Parmiter v. Parmiter, 30 L. J. Ch. 508.) The 19 & 20 Vict, c. 97, s. 13, provides that written acknowledgments and promises signed by agents duly authorised, shall be binding within the foregoing provision. The above section of 9 Geo. 4, c. 14, expressly provided that a promise or acknowledgment made pursuant thereto by one of several joint debtors. LIMITATION. 421 &c., should not deprive the other or others of the benefit of any statute of limitations. By and to whom promise or achnon-Ieilgmcnt viiist be made.'] — Assuming that the provisions of Lord Tenterden's Act are complied with, the question may often arise whether the promise or acknowledgment has been made by and to the proper person. An admission by a debtor in his balance sheet vnW not take a debt out of the statute as against his trustees. {E,r jiarte Topping, 34 L. J. Bkcy. 44.) A mere acknowledgment by an exe- cutor is not sufficient, but it seems it would be otherwise if he expressly promised to pay. (TuUock v. Dunn, Ey. & M. 416 ; Scholey v. Walton, 12 M. ^: W. 510.) As to the effect of an acknowledgment by one joint maker of a promissory note, see Pittam v. Foster, 1 B. & C. 248. There appears to be some uncertainty on the law as to whether and in what cases the promise or acknowledgment may be made to another person than the creditor. Both before and since the passing of Lord Tenterden's Act, acknowledgments to third persons were held to put cases out of the statutes of limitations. However, in the only case since the 9 Geo. 4, c. 14, the admission was made in an inventory in the Ecclesiastical Court, setting forth the debts of deceased. It seems to be at present the prevailing opinion that an admission made to a stranger can only affect the operation of the Statute of Limitations, when it can be properly left to the jury as eqiiivalent to or implying a promise to the plaintiff to pay the debt. (See Ecerett v. Robertson, 28 L. J. Q. B. 23 ; E.c parte Topping, 34 L. J. Bkcy. 44.) As to the sufficiency of the acknowledgment, Pollock, C. B., intimated in Cornforth v. Smithard (.5 H. & N. 13 ; 29 L. J. Ex. 228), that stronger words would be necessary to revive a debt already barred than to keep alive a debt against which the statute was running. For instances in which the sufficiency of the promise has been discussed, see RacMuim v. Marriot, 20 L. J. Ex. 31.5 (Ex. Ch.) ; Cassuhj v. Firman, Ir. Hep. 1 C. L. 9, Ex. ; Lee v. Wilmot, L. K. 1 Ex. 364 ; In re Hirer Steamer)' Co., L. R. 6 Ch. 822 ; Chasemore v. Turner, 45 L. .J. m (Ex. Ch.). Where a document is jjut in evidence In support of the reply of ac- knowledgment, it is for the Court to determine whether it amounts to a sufficient acknowledgment. So the question whether a ])romise is condi- tional or not is for the Court ; but in those cases any evidence of extrinsic circumstances which may affect the construction is for the consideration of the jury. {Boiitlege v. Rammg, 8 Ad. & E. 221.) The admission of a balance due and promise of payment, though denying the amount claimed, is sufficient to interrupt the statute as to the amount claimed. {Slieat V. Lindsay, 46 L. J. C. L. 249.) An acknowledgment after action brought is insufficient. {Bateman v. Finder, 3 Q. B. 574.) The provision rer|uiring acknowledgments to be in writing signed applies t(j cases of debt on simple contract alleged by way of set-off, aTid to which the Statute of Limitations (21 Jac. 1, c. 16) has been pleaded. (Sect. 4 of 9 Geo. 4, c. 14.) The revival of liability by promise or acknowledgment is confined to cases of debt, and no similar effect is given to acknowledgments of lia- bility for other breaches of contract not resulting in debt. {Jioydell v. J)rtnnmond, 2 (."amp. l.">7, 160.) Lord Tenterden's Act does not affect this doctrine. The doctrine is also inapplicable to actions for wrongs inde- pendent of contr.'ict. {Hurst v. Barker, 1 I?. & Aid. 92 ; Tanner v. Smart, (i B. k C. 603, 605.) An infant may };y acknowledgment renew a debt for necessaries barred by the Statute of Limitations. (WiUins v. Smith, 4 E. & B, 180.) With regJird to specialty debts, the 5th section of 3 & 4 Wm. 4, c. 42, Effect of promise, &c., by one joint debtor. What acknow- ledgment necessary. When to third party semble must simply Ijromise to pay the debt. Stronger evidence required to revive debt barred than to suspend statute. Court to determine whether a document amounts to acknow- ledgment ; so whether promise condi- tional. 'y Revival acknow- ledgment applies only to deljts and not to breaclies of contract. LIMITATION. How dis- ability pleaded in reply to defence of statute. Now neces- sary to reply spe- cially where debt revived by promise. Eevival of specialty debt to be specially replied. Reply tliat cause of action fraudu- lently con- cealed is demur- rable. provides that if any acknowledgment shall have been made, either by \\Titing signed by the party liable by virtue of such specialty or his agent, or by part payment or j^art satisfaction on account of any prin- cipal or interest, it shall be lawful for the person entitled to bring his action for the numcy remaining unpaid and so acknowledged to be due within twenty years after such acknowledgment. This section only applies to money remaining unpaid and acknowledged to be due, and not to other claims for acts or omissions in breach of covenants. {Blair v. Ormond. 17 Q. B. 423.) The acknowledgment under this statute need not necessarily import a promise to pay, and therefore, even if made to a stranger and not to the creditor, it seems it will be sufficient. [Hoivcntt v. Boiiser, 3 Ex. 4t)l, 500.) In replying to a plea of a statute of limitations, if the plaintiff relies on any of the disabilities before mentioned at the commencement of the action, he should distinctly state what the disability was, and when it ceased, so as to show that there was not sufficient time for the statutory bar to arise before the commencement of the action. Under the former system of pleading, a plaintiff was required to reply specially in such circumstances. {Cluindlcr v. Villett, 2 Wms. Saund. 118.) WTien the debt by simple contract was revived hj an absolute promise or acknowledgment it was formerly unnecessary to reply specially, as under an issue taken on the plea of the Statute of Limitations, it was open to a plaintiff to show that the cause of action was renewed vnthin six years. The ground of this was that a new cause of action was in strict- ness created by the promise or acknowledgment, and therefore a rejilica- tion taking issue on the plea of the Statute of Limitations asserted in substance that the cause of action did accrue within the prescribed period. {Tanner v. Smart, 6 B. & C. 603, 606.) Under the present rules of plead- ing, such matter must be specifically stated in the reply. (See form, pp. 164, 207.) The 3 & 4 Wm. 4, c. 42, s. .'5, which provides for the revival of specialty debts by acknowledgment, directed that the plaintiff might by way of replication state such acknowledgments, and that the action was brought within twenty years from such acknowledgment. It was held that the acknowledgment should be replied specially, and could not be given in evidence under a joinder of issue or replication that the cause of action accrued with twenty years before suit. (Moodie v. Bannister, 28 L. J. Ch. 881.) It was also held that the mode of making the acknow- ledgment, whether by writing, part payment, or i)art satisfaction should be specifically stated in the replication. (Forsyth v. Bristowe, 8 Ex. 347.) A reply in accordance with these requu'ements would under the present rules of pleading be sufficient. In the statement of claim in an action on such a debt, it is the specialty revived by acknowledgment, which should be set out as the foundation of the action, and not the writing or act by which it was revived. A reply to a defence setting out that the debt was barred by a statute of limitations that the plaintiff did not know of the cause of action until after the period of limitation had elapsed would be demurrable. So would a reply alleging that the cause of action was fraudulently con- cealed by the defendant. [Iluntfr v. Gibbons, 26 L. J. Ex. 1 ; Ivqwrlal Gas Co. V. London Gas Co., 10 Ex. 39.) Foreign statutes of limitation which bar the remedy and not the right have no application here. {Harris v. QuUw, L. E. 4 Q. B. 653.) MALICIOUS AKEEST. 423 Malicious Arrest (n). Action for inaliciousl// 2)rocun'nf/ the Plaintiff to he Arrested in Action for a Cii'il Suit. 1. In August, 1877, the defendant H. C, as the holder of two bills of exchange for £100 and £75, which had been indorsed to him by the defendant F. G., brought an action on the said bills in the Queen's Bench Division of the High Coui-t of Justice, against the plaintilf as drawer thereof. The plain- tiff was not liable on the said bills, and on an affidavit, stating the grounds on which he was not liable, he obtained leave to appear and defend. malicious arrest. (ja) This action was once pretty frequent, but since the .S2 & 33 Vict. When a c. 62, s. 6, wliich abolished imprisonment for debt, it is of rare occurrence, person still Since that Act, however, a person may still, daring the course of civil liable to proceedings, be arrested in several cases ; and in all these cases it is sub- imiirison- mitted that a person is liable in an action for a malicious arrest if he, ment for acting maliciously and without reasonable and probable cause, sets the non-pay- law in motion and procures the arrest of another. By s. 4 of the ment of 32 & 33 Vict. c. 62, a person may be arrested — (1) who being a trustee money, fails to pay over trust moneys ordered by the Coui't to be paid over ; (2) who being a solicitor fails to pay any costs which he has been directed personally to pay ; (3) who, being a bankrupt has failed to pay any in- stalments of income to the trustee in his bankruptcy which by the order of the Court he has been directed to pay. By sect. 5, any person who fails to pay any debt due from him in pursu- ance of .any order or judgment, may be committed to prison for six weeks on proof that he has the means of payment. By section it is enacted — («) if a plaintiff shall at any time before Cases final judgment ])rove, by evidence on oath, to the satisfaction of a judge, where that he has a cause of action against the defendant to the amount of arrest on £50 or upwards, and that there is probable cause for believing that the mesne defendant is aljout to ([uit England, and that the absence of the de- process fendant will materially prejudice the plaintiff in the prosecution of his legal, action, then it shall be lawful for the judge to order the defendant to be arrested and imprisoned for a period not exceeding six months, unless he give security that he will not leave England without the leave of the (Jom-t ; {b) where the plaintiff sues for a penalty other than a penalty in respect of any contract, it shall not be necessary for him to prove that the absence of the defendant will materially prejudice him in the jjrosecution of his actiim. The foundation of the action for malicious arrest in one or other of The foun- thcsc cases must be that the i)arty obtaining the order for the arrest, and dation of who is the defendant, has imposed on the judge by some false state- the action ment ; and this false statement and the sui'ixnmding circumstances f,,!- mali- must be such as clearly to demonstrate that the defendant had no rea- clous sonable or probable cause for the step he took. It must also be averred arrest. and proved that the order of arrest has been rescinded, and that the )>rocecdings have terminated in the plaintiff's favour ; but this fact is not by any means conclusive to prove an absence of reasonable cause on the part of the defendant. 424 MALICIOUS ARREST. Action for -- After tho plaintiff had apiicarcd in the said action, the malicious defendants, for the purpose of causiiic; the plaintiff to be ''"*■"''*■ arrested and imprisoned, falsely and maliciously made affidavits that the plaintiff was indebted to the defendant H. C. in the said sums of £100 and £75, that the plaintiff intended to pro- ceed abroad, and to leave England for the puiiwse of avoiding- payment of the said debt, and that the plaintiff would be a material and necessary witness on the part of the defendant H. C, on the trial of the said action ; and upon such affi- davits, and upon the false and malicious statements therein contained, the defendants maliciously and without reasonable or probable cause procured from a judge an order to arrest and hold the plaintiff to bail, and under such order and -^Tit caused the plaintiff to be aiTested and imprisoned, and the plaintiff* was kept in prison for some time, until he could apply for an order to set aside the said order and writ. . 3. Subsequently, upon the jjlaintiff's application to the judge who had made the said order, the said order and writ were rescinded and set aside, and the plaintiff was released. 4. By the said an-est and imprisonment the plaintiff was prevented from attending to his business, and was injured in his credit, and sustained losses and incuiTed expenses in and about giving bail under the said order and WTit, and in setting the same aside and in obtaining his release from the said im- prisonment. The plaintiff claims £1000. Counter-claim {Statement of Claim and Defence not leing given} for 3Ialicious Arrest. Counter- And by way of counter-claim the defendant says as fol- iikious'' lo^'8=— arrest, 1. After the commencement of this action the plaintiff maliciously and without reasonable or probable cause, on the 10th of , 1870, procured ft'om Mr. Baron H., being a judge of the Exchequer Division of the High Court of Justice, a special order of the said judge directing the defendant to be arrested and imprisoned for six months from the date of his arrest, unless and until the defendant should sooner deposit in Court the sum of £4000 by way of security, or give to the plaintiff a bond executed by the defendant and two sufficient MALICIOUS PROSECUTION. 425 sureties iii the penalty of £8000 or some other security satis- Counter- factory to the plaintiff that the defendant would not leave claim for a England without leave of the Court or a judge. aiTest. 2. The plaintiff prociu'ed the said order by falsely and maliciously representing to the said judge, by a false affidavit sworn on or about the 10th , 187G, in effect that he the plaintiff had a cause of action against the defendant to the amount of £4400, that the defendant was about to leave England for the pui"pose of delaying the said action, and that the defendant was a material ^\itness for tlie establishing of the plaintiff's claims. The defendant refers to the said affi- davit aforesaid for the exact tenor of the said allegations. 3. Thereupon, in pursuance of the said order, the plaintiff had the defendant arrested, and detained and imprisoned the defendant in the debtors' prison at H. 4. On the facts of the case being brought by affidavit by the defendant before Mr. Baron H,, the learned judge, by further order dated the 17th day of , 1870, ordered the immediate discharge of the defendant. 5. By reason of the premises the defendant was put to great annoyance, expense, and inconvenience. The defendant claims £1000 damages for the said malicious arrest. Malicious Prosecution (a). Action for Malicioiis Prosecution on a Gharrje, of Embezzlement statement and for False Imprisonment. °^ '^^^^^] '' ^ for mali- 1. The plaintiff is a manufacturer of household machinery, ciftion^"^^' and resides at . and false imxn-ison- ment. {a) An action for malicious prosecution is {jivcn where a person acting When an maliciously and without reasonable or probable cause has preferred action for against anrtther in a criminal Court or before a judicial officer, a charge, malicious which in the event has been decided to be false, but which during its jirosccu- pendency has inflicteil some injury to the property, person, or reputation ^Jqq [j^g of the plaintiff. The essential conditions to this action arc then five: — Ist. A criunnal charge must have been preferred before a judicial officer. 426 MALICIOUS PROSECUTION. Statement -• The defendant is a manufacturer of agricultural imple- of ciaiiii ments, and resides at . cious prose- 3. On or about the 24th day of May, 1877, the defendant cution, &c. gave the plaintitt" into the custody of a police constable upon a A criminal charge must have been made. The crimi- nal charge must have been dis- missed. Or con- viction quashed. Exception. Malice necessary. Want of reasonable and firo- bable What amounts to. Any act by which the criminal law is set in motion against another will not amount to a malicious prosecution. To give a man into the custody of a police constable on a charge of felony might be a false imprison- ment ; it would not be a malicious prosecution. " There can be no malicious prosecution until the parties come before a. Court or a judicial officer." (Per Willes, J., in Aitatiw v. DowUng, L. E. .'> G. P. 540, which see for the distinction between false imprisonment and malicious prose- cution.) 2nd. The charge must have been false in fact, and so deter- mined by the proper criminal Court before which it came. It is not necessary that the first Court before which the charge came should have decided it in the plaintiff's favour ; it is enough if a Court of Appeal has given a decision in his favour, so that the ultimate detennination declares the falseness of the charge ; but subject to this, a man may be per- fectly innocent of a charge that lias been made against him, and prej^ared with abundant evidence to prove the fact, yet if a judgment of a com- petent Court remains on record, he cannot j)roceed with his action for malicious prosecution. The reversal of any conviction made upon the charge is a condition precedent to his right to sue in all cases save one. It has been decided that a malicious exhibition of articles of the peace against another, (which is of course a species of prosecution,) supported by a false oath of threats having been used, may be made the foundation of an action for damages, although the accused person has been required to find sureties and been imprisoned for default. {Storard v. Grometf, L. J. 29 C. P. 170), and the reason of this exception from the general rule is that proceedings before justices in cases of the kind are generally e,r pa rte, the accused has no means of controverting the charge, and the justices have little or no option to refuse to bind him over, when the person exhibiting the articles swears that he is in bodily fear. 3rd. The prosecution must be malicious, that is to say, instituted from any other motive than the simple desire of bringing to justice one whom you believe has committed a crime. (See Stevena v. Midland Bail. Co., 23 L. J. Ex. 328.) But " Malice alone is not sufficient to found the action, because a person actuated by the plainest malice may nevertheless have a justifiable reason for a prosecution." (Per Tindal, C. J., in Willans v, Taylor, 6 Bing. 1 8G.) Where, however, the judge rules (for it is his province to determine this, the facts being found by the jury) that there is no reasonable or probable cause for the prosecution, the jury may from that infer malice. {Buut v. Gibbons, 30 L. J. Exch. 75.) 4th. The prosecu- tion must have been without reasonable or probable cause. It is im- possible to lay down any general rule as to what constitutes a want of reasonable or probable cause for a prosecution ; but the facts of the ] larticular case ought to be such as to satisfy a reasonable mind that the accuser had little or no ground for the proceeding Ijut his desire to injure the accused, or that he acted in the matter recklessly and carelessly, not caring what: mistake he might make, and forbearing to institute reasonable inquiries which would readily have removed any little suspicion that might attach to the accused. Evidence that the accuser did not himself believe in the charge which he made is cogent evidence that he had no reasonable or probable cause ; but from the most express malice merely the want of probable cause cannot be implied. (Turner v. Ambler, 10 Q. B. 252.) 5th. In order to recover damages in this action the plaintiff must show that he has suffered either in person, reputation, or pocket. MALICIOUS PROSECUTION. 427 false charge that the plaintiff had committed a felony, and statement compelled hmi to go to a police station, and there caused him f^f^^^. to be imprisoned and to be kept in prison until the next day, cious prose- when he was brought before a magistrate at the C. pohce <^^^ion. court upon the said charge. 4. On the hearing of the said charge the defendant falsely and maliciously and without reasonable or probable cause ap- peared before the said police magistrate and charged the plaintiff with having feloniously embezzled certain moneys of the defendant. 5. The said police magistrate having heard the said charge, dismissed the same, and discharged the plaintiff out of ci^tody, whereby the said prosecution was determined. 6. By reason of the premises the plaintiff has been injured in his reputation, and suffered pain of body and mind, and was prevented from attending to his business, and incurred expense in defending himself from the said charge, and in obtaining his release from the said imprisonment. The plaintiff claims £500 damages. Slatemont of Defence. 1. The defendant admits that on the 24tli of May, 1877, he Defence gave the plaintiff into the custody of a police constable on a Jg^Q^^bk charge of felony. andpro- 2. Prior to, at, and after the 1st of May, 1877, the plaintiff ' acted as the defendant's agent for the sale of the defendant's goods at York. 3. It was part of the plaintiff's duty to collect for the defendant all moneys due and owing to him in respect of the gale of tlie said goods, when received to enter the same as paid in certain l)ooks kept for that purpose, and forthwith to forward such moneys to the defendant without making any deductions therefrom. 4. On the 1st of May, 1877, the plaintiff as the defendant's It is generally very easy to aver and prove sufficient damafre to LTound Evidence of the action, for it is seldom that the chaiye is not so scandalous as that the damage, mere preferring; of it is not some injury to the plaintiff's reputation, and it almost always hapjicns that the plaintilT is jiut to some cxj)onH; in defending himself from it, whichhe can allege in his statement of claim, and in respect of which he can recover. bable cause. 428 MALICIOUS PEOSECUTION. Defence to action for malicious prosecu- tion. Coiinter- claim. Detinue. ai'-cnt received pa}inent on behalf of the defendant of various bills amounting in the agoregate to £215. T). The plaintiff did not enter in any of the books mentioned in the ord paragraph the tact of the receipt of the said moneys or any part of the same, nor did he forward to the defendant the said moneys or any part thereof. (;. On the 10th of May, 1877, the defendant wrote to the plaintiff inquiring if any of the bills mentioned in the 4th paragraph had yet been paid, and on the 12th of May, 1877, the plaintiff replied that they had not yet been paid, but that he hoped to receive them shortly. 7. On the 25th of May, 1877, the defendant discovered that the plaintiff had received on his behalf all the moneys mentioned in the 4th paragraph, and thereupon he gave the plaintiff into custody and preferred a charge of embezzlement in respect of the said sum of £215 against him, which are the grievances complained of in the 3rd and 4th paragraphs of the statement of claim. 8. The defendant denies that he acted therein maliciously, and says that he had reasonable and probable cause for the said imprisonment and the said prosecution. 9. The defendant does not admit the Gth paragraph of the statement of claim. And by way of counter-claim the defendant says : — 1. Between the day of , 187G, and the day of , 1877, the defendant entrusted certain of his goods of the value of £400 to the plaintiff, to be sold by the plaintiff for the defendant, or to be returned to the defendant. 2. The plaintiff, although frequently required so to do, has never returned the said goods or accounted for the price thereof. The defendant claims a return of the said goods or the price and value thereof. Reply. Reply. The plaintiff joins issue upon the defence, except so far as it admits any part of the statement of claim. As to the counter-claim : — 1. The plaintiff admits having received certain goods from the defendant, but denies that the terms upon which he re- MALICIOUS PROSECUTION. 429 ceived them are accm-ately stated in the counter-claim. The Reply to plaintiff received the goods for sale at an agricultural show at couuter- York upon the joint account of the plaintiff and defendant, and action for as to such as might not be so sold, to return the same to certain "lalicious premises at , which premises were occupied by defendant tion. as tenant to the plaintiff. 2. The plaintiff sold some of the goods at York, and duly accomited to the defendant for the proceeds. 3. The plaintiff duly returned such of the goods as were imsold to the said premises, and thereJDy the terms of the bail- ment to the plaintiff of the said goods were satisfied. 4. If the plaintiff was bound to return the unsold goods to the defendant, the plaintiff says that the return of them to the said premises was a return to tlie defendant. Joinder of Issue. The defendant joins issue on the j)laintiff 's reply. Action for Malicious Prosecution on a Charge of Misdemeanor before Justices and at Assizes. 1. The plaintiff is a, gentleman of independent means re- Another siding near R. The defendant is a farmer residing at , claim for '^ o 7 malicious near E. aforesaid. prosecu- 2. In the month of October, 187G, two persons named respec- tively M. and 8. filed petitions for liquidation of their attairs by arrangement or composition, pursuant to the Bankruptcy Act, 18C9, in the county court of Warwickshire holden at . 3. The defendant was a creditor upon the estates of M. and 8., and he was appointed a trustee jointly with another creditor of M. and S. in the said liquidation proceedings. 4. The plaintiff was a creditor of ]\I. and S., and on tlie 24th of , 1877, fonvarded to the defendant and his co- trustee his proof of debt duly sworn against the estates of M. and S. 5. On the of Februaiy, 1877, the defendant laid an information before , E8(j., a justice of the peace for the county of W., charging the plaintiff with a misdemeanor under the 14th section of the 32 & 33 Vict. c. (j'2, viz., with 430 MALICIOUS PROSECUTION. Claim for having wilfuUy, and with intent to defraud, made a false claim malicious aoainst the estates in li(imdation of the said M. and S. Uoir"'" ^'- Upon such information the defendant procured the plain- tiff to be summoned before the justices of the peace for the petty sessional division of R. aforesaid. The defendant appeared upon the hearing of the said information and summons and prosecuted the plaintiff in respect of the alleged offence. The plaintiff was committed by the said justices to take his trial at the ensuing W. assizes for the said alleged offence. 7. The said assizes were held on the 20th day of March, 1877, when the defendant caused a bill of indictment to be preferred against the plaintiff, and the plaintiff was put upon his trial for the alleged offence, but was acquitted. 8. The defendant laid the said information and procured the plaintiff to be summoned before the justices and committed for trial, and caused a bill of indictment to be preferred against the plaintiff as aforesaid falsely and maliciously and without reasonable or probable cause. 9. By reason thereof the plaintiff has been injured in his reputation and credit, and has suffered in mind and body, and has incurred expenses in defending himself and obtaining his acquittal. The plaintiff claims £1000 damages. Statement of Defence. 1. Save as hereinafter appears the defendant does not admit any of the allegations in the statement of claim. 2. By his proof in the matter of proceedings for liquidation by arrangement or composition with creditors instituted by H. M., sworn the 24th day of January, the plaintiff swore that the said H. M. was indebted to him in the sum of £400, whereas the said H. M. was then indebted to him in the sum of £300 only, and no more. 3. By the said proof the plaintiff claimed the sum of £100 as due from the said H. M. in respect of two bills of exchange for the sum of £50 each, drawn by one T. S., and accepted by the said H. M., and dated respectively the 9th of November, 1875. The said bills of exchange had respectively been can- celled when they became due and other bills of exchange for the MALICIOTTS PROSECUTION. 431 like amounts had been given in renewal thereof, and such other Defence to bills had been in turn cancelled and renewed by two bills for claim for nitilicioiis the sum of £50 each, dated the 0th of July, 1870, and drawn proseca- by the said T. S. and accepted by the said H. M. respectively. *'°°- The said two last-mentioned bills had been accepted by the said H. M., and indorsed to the plaintiff in renewal of the said bills dated the 9th day of November, 1875, as aforesaid, and save as aforesaid there was no value or consideration for the accepting of the said bills or either of them by the said H. M.,nor for their indorsement to the plaintiff. 4. The plaintiff by his said proof claimed against the estate of the said H. M. in respect of the said two bills of exchange dated the 9th of July, 187G, as well as in respect of the said two bills of exchange dated the 9th of November, 1875. 5. The plaintiff also proved against the estate of the said T. S. m respect of the same four bills of exchange dated the 9th of November, 1875, and the 9th of July, 187G. The said T. S. never received any value or consideration in respect of the said bills or any of them. ('>. The defendant, as trustee of the estates of the said H. M. and of tlie said T. S., and with the assent and concurrence of his co-trustee, T. 1). ^I., rejected the plaintiff's claim in respect of the said bills of exchange dated the 9th of November, 1875, and of certain other moneys which were not due to the plaintiff. 7. The defendant had reasonable and probable cause for believing, and did in fact believe, that the plaintiff in claiming against the estates of the said H. M. and T. S. respectively, in respect of the said bills of exchange as aforesaid, had committed an offence against the provisions of the Debtors Act, 18G9, and the defendant further says that he acted under such belief and not othenvise in respect of the said proceedings. 8. The defendant further says that before the conmieucc- Accord and ment of this action, it was agreed by and between the plaintiff and the defendant, that in consideration that the defendant would pay to the plaintiff the sura of £2b, tlie plaintiff would accept the same in full accord and satisfaction of all i-ights of action which the ])laintiff might have in respect of the matters set out in the statement of claim. 9. The defendant paid to the plaintiff the said sum of £25, and the plaintiff accepted the same in satisfaction as aforesaid. satisfac- tion. 432 MASTER AND SERVANT. Market. Claim for an Ohst ruction of a Market and for Tolls. Obstnic- 1. Tlic plaintiffs are the owners in fee of a certain market market liolclcn in the borough of P., in the county of C, on Thursdays and for and Saturdays in each week for the buying and selling, amongst other things, of flesh meat, together Avith tolls, stallages, and other perquisites and profits to that market appertaining ; and all persons selling flesh meat on Thursdays and Saturdays within the said borough ought of right to sell the same within the said market, and not within any private shop, without pay- ment to the plaintiffs of the said tolls, stallages, and other perquisites and profits of the said market. 2. The defendant carries on business and sells, amongst other things, flesh meat. 3. On Saturday, the 4th of December, 1875, and from that day on each Satm-day until the commencement of this action, the defendant exposed for sale in his said shop within the limits of the said borough flesh meat, and refused to pay the plaintiflPs any of the said tolls, stallages, or other perquisites and profits of the said market, and caused them to lose the said tolls, stallages, and other perquisites and profits of the said market, and prevented their enjoyment thereof, and thereby disturbed the plaintiffs' said market. The plaintiffs claim : — (1.) £100, damages for the disturbance of the said market. (2.) £1 for tolls. Master and Servant. See Negligence — Wrongful Dismissal. MEDICAL MAN. 433 Statutory Ijrovisions allowing medical practi- tioners to recover fees. Medical Man (")• Acfio/i hij a Surgeon fur Charges for Attendance. 1. The plaintiff is a surgeon practising at No. , Henrietta Claim by Street, Cavendish Square. The defendant is a stockbroker re- fg^ p^^^J! siding in Eaton Square. fessional attend- — — ■ ' ■ ance, &c. (rt) At common law a physician could not maintain an action for liis fees, nor even for Ms travelling expenses ( Vcitch v, I{H>t. printed and puljlished, shall be evidence that the persons therein specified are registered according to the Act ; and the absence of the name of any person from such copy shall be evidence until the contrary appear that he is not so registered, provided in this case that a certified copy under the hand of the registrar of the (Jcneral Council or of any branch council of the entiy of the name on the general or local register shall bo evidence of registration. By sect. '>'>, the Act is not to afEect the lawful occupation, trade, or Imsiness of chemists and druggists, and dentists, so far as selling, com- pounding, or dispensing medicines. With regard to apothecaries, the '>'> Geo. 3, c. 194, s. 21, provides that ProTisions no person shall lie allowed to recover any charges claimed by him in a of 55 Geo. 3, Court of law, unless he can prove at the trial that he has obtained a c. 194, as certificate from the Court of Examiners of the Apotiiecarics' Company, to apothe- F f caries. Medical Ijracti- tioucrs must be registered under Act. jMedical Register, how far evidence of registra- tion or non- registra- tion. 434 MEDICAL MAN. Claim liy -. On and after the li'tli of A])ril, Is??, tlie jilaiiitilf aLleiuled surgeon for .^g g^^.]^ suru'eoii on tlie dei'emlant at liis reiiueRt, and on several ]n-otes- . . . ^ /. T 1 1 sional at- occasions o]ierated on him in and al)ont; flie cui'c of a dislocated tendance. ankle, and supplied him with snr^'ical a]»])liances and medicines. o. The i)laintilf's cluirg'es for such attendances and supply of surji'ical appliances and medicines amount to £54, of which full jtarticnlars have been delivered to the defendant. 4. The defendant has not paid the same or any ]:)art thereof. The plaintiff claims £54. Claim against surgeons tor un- skilful operation. Action against Surgeons of a Hospital for vnshllfulhj performing a Svrgical Operation (a). 1. The plaintiff is an infant of tender years, living with his parents at , Street, in the county of Middlesex. The defendant W. T. is an operating surgeon to the N. E. Hospital Registra- tion must l.e pi-Qved though not disputed. liye-law of College of Physicians against fel- lows, &c., .siiing. No benefit, owing to plaintiff's want of .skill. Medical practi- lioners, when liable lor want of skill ;iud care. The provisions of sect. 32 of the Medical Act (21 & 22 Vict. c. !)0), above cited, arc not confined in their application to actions against l)atients themselves, but extend to cases where a third person has guaranteed payment for medical attendance, or is jirimaiily liable for it as supplied on his credit. (Iloscoe's Evidence, Nisi Prius, 13th cd. 486.) Defences.'] — 1st. Non-registration of plaintiff pursuant to the Medical Act, as amended. CAce mite.) It would seem that even if a defendant admits the allegation that plaintiff was duly (jualified and registered, this does not dispense with the necessary proof of qualification. ■/. c. regis- tration , on the trial, or deprive the defendant of the benefit of the jilain- tiff failing to prove it, as by the language of sect. 32 of 21 & 22 Vict, c. 90, registration is made a condition precedent to the plaintiff re- covering. (Wagsftijf'ev. SlNirjie, 3 M. & VV. 521.) 2nd. That by a bye-law of a College of Physicians, to which the plaintiff belongs, it was provided that no member or fellow thereof should be entitled to sue for his fees. kc. It seems that the College of Physicians (London) has made a bye-law th.at no feUo/r-i of the College shall be entitled to sue. This, however, does not extend to meinher.s. This defence must be expressly stated in the statement of defence. 3rd. That the defendant had no benefit from the plaintiff 's attendance, .vc, in consequence of his want of skill. But if the practitioner has used due skill and diligence, he is entitled to claim remuneration, though he may not have effected a cure. If a surgical opei'ation could have ])ro- duced no useful result in any event, the surgeon cannot recover : but if an operation, which might have been useful, has failed to produce the tie- sired effect, thisdoes not disentitle him to remuneration for his serviceiS. (See ///// V. Featherstoncluuigh , 7 Bing. r>li.) («.) A medical practitioner is liable for injuries caused through want of due care and skill. But it is not enough to render him liable that he has shown a less degree of skill than other medical men may have shown, oi' a less degree of care than he himself might have bestowed ; nor is it enough that he has himself acknowledged some degree of want of care ; there must have been a want of cc)mi)etent skill and ordinary care, and to such a degree as to have led to a bad result. skilful operation. MEDICAL MAN. 435 for children at H., and the defendant T. B. is a house surgeon claim to the said hospital. ^^ 2. M. Smith, the mother of the said infant plaintiff, in foruu the month of June took the plaintiff' to the said X. E. hos- pital, where the plaintiff was received as an out-door patient, and so remained up to the month of October in the same year. o. In the said mouth of October, 1875, the defendants, with- out the consent or knowledge of the parents of the plaintiff", so negligently and unskilfully performed a surgical operation on the knee of the plaintiff" that his health has suffered, and he has received permanent bodily injury. The plaintiff claims through her next friend £100 damages. services. Actio/i, hij Executrkes of Dentist to recover Charges for sui)i)t[jhuj and fitdng Artificial Teeth. 1. The plaintiffs are the execu trices of the last will and ^:^^l^^%^ testament of E. S., deceased, of , in the county of , ofsurgeon- . . dentist for surgeon dentist. profes- 2. The defendant is a clerk in holy orders, at , in the sional county of . 3. During the month of , 187 — , the said E. 8. ])rofessioiudly attended on the defendant at his request, and rendered him services and did work and supplied materials in attendhig and operating upon the teeth of the defendant, and otherwise. And the said E. S. also supplied to and fitted the defendant with certain artificial teeth and a gold plate at his, the defendant's, request. The said E. S. fi-om time to time rendered to the defendant accounts of his the said E. S.'s claim in respect of the premises, and there was at the death of the said E. S. due and payable to him by the defendant the sum of £?A in respect of the premises. \. The said sum was at the commencement of this action, and now is, due and payable Viy the defendant to the plaintiffs as such cxecutrices. The plaintiffs claim £31. Statement of Defence. I . The defendant does not admit the allegations contained in the ord paragraph of the statement of claim, or any of (.hem. V V 2 43(i MEDICAL MAN. Claim liy executrices of surgeon - dentist for pi'o- fessional Payment into Court. '2. The (lefeiulant fuvtlier denies that the said E. S. supplied and fitted to the defendant a g-old plate, as alleged in the said "vd paragra])h. 3. The defendant says that in or about tlie niontli of , 187—, it was agreed by and between the said E. S. and the defendant that the said E. 8., in consideration that tlie de- fendant would employ him as his dentist, should supply the de- fendant with a set of teeth and plate, and charge the defendant for the materials only ; and the defendant employed the said E. S. to fit him with a set of teeth on these terms, and not otherwise. 4. The defendant further says that the said E. S. supplied a certain set of teeth M'hich were not properly fitted and were useless to tlie defendant, and that he was put to expense in employing another dentist to fit him with other teeth in conse- (juence thereof. r». The defendant farther says that he is and always was ready to pay for the materials used by the said E. S. as afore- said ; and the defendant has paid into Court the sum of £,?>, and says that the said sum is sufficient to satisfy the plaintiff '& claim. Claim by physician for balance of pur- chase- money on sale of practice. Action lij Jfcdiail Blanfor Balancp of PurcMsp-money of a Practicp. 1. The plaintiflf is a medical man, who, until the sale of his practice hereafter mentioned, exercised his profession at S., in the county of . 2. The defendant is also a medical man. 3. By an agreement dated the day of , 1877, the plaintiff" agreed to sell to the defendant, and the defendau.t agreed to buy of the plaintiff, the practice aforesaid, on the terms (among others) that the defendant should pay to the plaintiff" the sum of £150 as pm'chase-money, such sum to be paid when the defendant should liavc been elected as medical officer to the W. Union, tliat appointment at the date of the agreement being held by tlie plaintiff. 4. The defendant paid to the plaintiff £50 as a deposit and in part payment of the aforesaid sum of £150. 5. Tlie defendant took possession of the said practice on the day of , 1877, and was duly elected as medical officer MISREPRESENTATION. 437 of tlie W. Union, wlicreupon the balance of the i)nic}iasc-moiiey became i^ayable to the plaintiff. 6. The defendant refused to pay the said balance, and the same still remains unpaid. The plaintiff claims £100. Claim 1)3' 2)liysiciaii for balance of pur- chase- money on sale of Ijractice. Misrepresentation («). And see Fraud. Action for Misre^ircsenluiij tho Value of a JJi/siness on. i/s Sale, ci 1. In or about March, 1^75, the defendant caused to be inserted in the " Daily Telegraph "' ncAvspaper an advertise- {a) The most common form of action under this head is that for mis- representation of the vahic of property sold to the plaintiff. It is essen- tial to maintain the action that — 1. The defendant has made a statement with reference to the subject- matter of the sale which is false in fact. 2. That he knew it to be false. o. That he made it intending to inliucncc the decision of the plaintiff. 4. That the plaintiff believed it, -and acted on it, or in other words, that he was thereby induced to jjurchase, &;c. ."). That the plaintiff was thereby damnified. In Cui-nfoot V. Fowhc ((! Vi. k, W. 858), it was held, that where the owner of a house authorised an agent to let it without telling him of a nuisance which lowered the value of the premises, and the agent, in answer to the ])laintiff, said there were no objections to it, it was held that there was 310 fraud either by the agent or his principal. Where an agent knowing that timber was unsound represented it as sound, but his principal did Jiot know of the defect, the Court was divided as to the responsibility of the latter in an action against him. (^Udcl v. Atherton, 80 L. J. Ex. 887. And see Archibald v. Jfairth, 1 Ir. li. 1 C. L. (108, C. P.) In WrU/ht v. Leoiwril, 80 L. J. C. J*. 8(jo, the Court was divided as to wlietlier defen- dant was liable for a false representation by his wife. A person is responsible for the consequences of a false reiircsentation made Ijy him to another on which a third person acts, if made with the in- tention that such third person should act on it, and the injury com- plained of be the immediate consequence of such representation. (Peek v. Guriir;/, L. K. G H. L. 877, 412, per Lord Cairns.) Where, however, the act of the plaintiff which caused him the injury is not directly induced by the representation of the defendant, though ma. J. Ex. 02 u., where m tor nnsreprc- scutation of the v;.ihie of business on sale thereof. Essential elements in action for misre- IHcsenta- tion. Jlisrepre- sentatiou by agen:. When misrepre- sentation made to third pci'son. Misrcinc- sentations made in prospectus. 4r,8 MISREPRESENTATION. Claim for luisreprc- .sontation of the value of a business. Jlisrepre- sentations in fraudu- lent pro- spectus. Incorpo- rated company liabie for misrepre- sentation.? of atreiit. Misrepre- sentations as to the credit, &c., of third 2)ersons. Mii.st he in Avriting and signed. Signature of agents and part- ners. How far lilaintiff nui.st 1)0 influenced. mcnt, in wliicli he offered ibr sale tlie lease, fixtures, fittings^ goodwill, and stock-in-trade of a baker's shop and business, and the directors of a bank who knowingly issued a false report, in form addressed to the shareholders, but intended for the information of persons wishing to purchase shares, and the plaintiff, through a broker, obtained a copy of the report, were held liable for a loss sustained by the plaintiff in consequence of his having been induced by the false state- ments contained in the report to jwrchase shares. The only ground of distinction seems to be that the information in this case was more or less directly communicated to the plaintiffs. See a distinction between the cases, in Pecli v. (lurnry^siqmt. A class of actions for misrepresentation which have come very much under disciission recently have been those founded on fraudulent pro- spectuses by the promoters or directors of companies. Some cases of this kind have just been referred to. A leading case on this subject is that of Gerhard v. Bdfcx, 22 L. J. Q. B. .■)64, in which it was laid down that false statements in prospectuses, &;c., made ^vith the intention that they should be read and acted on, will, if so read and acted on, entitle a person acting on them to sue the authors of such statements for loss occasioned thereby. (See on this subject IVichiirdson v. Sylvcsfcr, L. E. n Q. B. S4 ; CuUcii v. Tltomwn'.t Trvstcrs. 4 Macq. 424 ; Cfto-hr v. Bicli- .wn, 28 L. J. C. P. 225.) An incorporated company is liable for a misrepresentation of an agent acting in the course of the business entrusted to him. {Jiarnirk v. U)if//ix/t Joint Sfoch Jianh. L. E. 2 Ex. 259, Ex. Ch.) It was said (not decided) in Addir V. Wr.stvrn. Banli of .Scotland, L. E. 1 H. L. 145, 158, l(i7, that in such cases only the agent or directors who made the false statements- could be made liable, and not the company. This was dissented from in Sn-ift V. Jcimhvry, L. E. <) Q. B. HOI, 312, Ex. Ch., per Coleridge, C. J. And see Macltuti v. Commcnnal Bank of Kor ]Jrvn-sn-icl;. L. E. 5 V. C. 3U4 ; M'Gominx. Dyer. L. E. 8 Q. B. 141.) The more common forms of this action are, those for misrepresen- tation of the value, takings, and ]irofits of a business on the sale thereof by the vendor. This is virtually the same kind of action as those for misrepresentations, relating to the position of companies in which shares are jiurchased. Another form of the action is that for mi8rcj)resentations as to the sol- vency and pecuniary position of a j^erson to whom the plaintiff, acting on such misrepresentations, has given credit and so suffered a loss. This action differs from other actions for misrepresentation in this, that by the 9 Geo.- 4, c. 14, s. 0, no i>erson is liable to be sued for any representa- tions as to another's solvency, &c., unless such representation is in writing and signed by the person sought to be made liable. A repre- sentation respecting the credit of a firm of which the defendant is partner is within this provision. {DeniK.v v. Ste'inkcUer, (! N. C. 84.) The signature of an agent will not satisfy this section. {Sn-ift v. Jen-x- bnry, L. E. 9 Q. B. 244.) And one partner signing in the name and by the express authority of the firm, will only make himself liable. (3faxon- v. W'Uliavifi, 28 L. T. N. S. 232.) The manager of a banking co-partner- shij) will not bind the co-partnership by his signature. (Sn-ift v. Jen-ahvry, x-Kpra.) The misrepresentations must in every form of action founded thereon be shown to have materially influenced the plaintiff. [Moore v. linrhe. 4 r. & F. 258, cor. Cockburn, C. J.) But the fact that there were other inducements will not protect a defendant. ( Clarhe v. Dixon , 28 L. J. C. I'. 225.) So in actions for misrepresenting the position of a person to whom credit was given, where there was a written and signed representation pai-tly on which and i>artly on a verbal statement the plaintiff acted, the MISREPRESENTATION. 439 described the same as au increasing business, and doing twelve claim for sacks a week. The advertisement directed appHcation for par- misrepre- sentatiou ticulars to be made to X. Y. of tlie '> The plaintiff ha\ing seen the advertisement applied to value of a ^ .. -iiinij. business. X. Y., who placed him m communication ^Y\th. the deiendant, and negotiations ensued between the plaintiff and the defendant for the sale to the plaintiff of the defendant's bakery at , with the lease, fixtures, fittings, stock-in-trade, and goodwill. 3. In the course of these negotiations the defendant re- peatedly stated to the plaintiff' that the business was a steadily increasing business, and that it was a business doing twelve sacks a Aveek. 4. On the 5th April, 1875, the plaintiff, believing the said statements of the defendant to be true, agreed to purchase the said premises from the deiendant for £500, and paid to him a deposit of £200 in respect of the purchase. 5. On the 15th April the purchase was completed, an assign- ment of the lease executed, and tlie balance of the purchase- money paid. On the same day the plaintiff entered into possession. G. The plauititt" soon afterwards discovered that at the time of the negotiations for the said purchase by him and of the said agreement, and of the completion thereof; the said business was and had long been a declining business ; and at each of those times, and for a long time l)efore, it had never been a business of more than eight sacks a week. And the said premises were not of the value of £500, or of any saleable vahie whatever. 7. The defendant mad(! the false representations hereinbefore action was held maiatainablc. {Tatioii, v. Wadr, 25 L. J. C. P. 240, Ex Cb ) In actions for mi.sret)resentation, on tbe sale of a business, it is a very common line of defence tliat the }>laintiff acted, not on any verbal representation made to him, but on an examination of the books relating to it, and on his own observation and examination. Mmsnrr of dumagrx.^- The plaintiff is entitled to recorer damages for aiiv injury which is the direct and natural consequence of his acting on the rci)ivscntations ; as where a vendor of cattle represents them to be free from disease, and the vendee's other cattle eatch the disease from them, th(^ latter can in this action recover in respect of the loss of his cattle so caused. (Mii/lrtf v. Jfanon., 1.. K. 1 C. P. r)->'.).) Costs incurred upon discovery of the falsehood of the representation in order to reverse the conscfjucnces thereof, are too remote to be recovered in this action. (If:/'lr v. Ji,rd paragraph of the state- ment of claim, and thronghout the whole of the transactions between the plaintiff and defendant, and down to the comi)lc- tion of the purchase and the relinquishment by the defendant of the said shop and business to the plaintiff, the said business was an increasing business, and ^vas a business doing twelve sacks a week. 2. The defendant denies the allegations of the Gth paragrapli of the statement of claim. o. The defendant repeatedly dnring the negotiations told the plaintiff that he must not act upon any statement or represen- tation of his, but must ascertain for himself the extent and value of the said business. And the defendant handed to the plaintiff for this purpose all his books, showing fully and truthfully the details of the said business, and from which the nature, extent, and value thereof could be fully seen. 4, The said books were examined for that purpose by the plaintiff, and by an accountant on his behalf. And the plaintiff' made the purchase in reliance upon his own judgment, and the result of his OAvn inquiries and investigations, and not upon any statement or representation of the defendant. Claim for fi'audu- lently inducinj,' plaintiff to take worthless shares. Action for frciudule nil 1/ mclmim) the Plnmfiff to kile woriJiU'Hs Shares, claiminfj a return of the Money im'id. 1. The plaintiff is a gentleman of private fortune, residing at , in the county of . 2. The defendant is a mining engineer, carrying on business at 1, Buildings, in the city of London. The defendant also acts as a stock and share bi-okcr, Init is not a member of the Stock Exchange. 3. Previous to the transaction herein mentioned, the plaintiff MISREPRESENTATION. 441 had consulted the defendant on divers occasions as to the claim tW makinu- of investments in stocks and shares- of pubHc com- fra*Klu- ^ 1-1 Icntly in- panies, and had employed him to make tor mm several ducingthc investments. i''ff **' 1 to take 4. The defendant, in order to induce the plaiutitf to take worthless «hares in a certain company, called the B. Colliery Company, shares. Limited, and with the intention of fraudulently procm-int;- from the plaintiff a large sum of money, to wit £ , for •certain worthless shares of the defendant in the said company, as hereinafter mentioned, falsely and fraudulently represented to the plaintiff that the shares of the said company had been taken up very rapidly, that they were of great value, and that the said colhery, which he stated lie had personally visited a few days before, was a prosperous concern. 5. The said representations were each and all of them false, to the defendant's knowledge. f). By reason of the premises and relying on the truth of the •said representations, the plaintiff was induced to agTce to take 112 shares in the said company, and to authorise the defendant to procure the same for the j^laintiff, which the defendant undertook to do. The shares in the said company were fur £ each, and Mere payable in full upon application. 7. The defendant thereupon falsely and fi-audulently, and contrary to his duty in that behalf, caused to be transferred to the plaintifi" 112 shares which then were standing in the name . of one R., but which shares had, before the agreement by the plaintiff to take 112 shares, been and then were the property of the defendant. The ])laintiff, when he entered into the said agreement, and when the said f-hares were transferred to him in pursuance thereof, did not know that the shares so sold and transferred to him had been and were tlie property of the defendant. If he had known this he would not liave taken them. 8. The plaintilf ])aid for the said shares and the transfer thereof £ . The said shares were then, and ever since ha-\e been of no value whatever. The plaintiff has, by reason of the fraudulent representations and concealments of the defendant above mentioned, Aviiolly lost the said sum of £ , and the use and profit of the same, and has received no benefit or consideration for the same. 442 MISREPRESENTATION. The plaintiff claims : — The said £ and interest from the Gth day oi' De- cember, 1870, until payment or final judgment. Claim for misrepre- sentation in frandu- lent pro- spectus. Action for Misrqn-cainilation in frmuhdent Proqwctus. 1 . The plaintiff' is a gun manufacturer carrying on business in London, and the defendant Avas, at the date of the matters hereinafter mentioned, a director and chairman of the C. 0. Company, Limited. 2. The said company was a joint-stock company incorporated under the Companies Acts, 186:^ and 18G7. 3. In the month of February, 187G, the defendant, vni\\ the intent to deceive and injm'e the plaintiff, and to induce the plaintiff and others to believe that the said company was in a sound condition and a safe investment for money, and to induce the plaintiff and others to apply for and take first mortgage debentures in the said company, falsely and fi'audu- lently issued and published to the plaintiff and others a certain prospectus, and thereby, amongst other things, falsely and fraudalently represented to the plaintiff that the said debentures would constitute a first charge upon the properties and profits of the said company, and that the directors of the said company had every confidence in ottering the said stock as a sound investment, amply secured and producing a satisfactory rate of profit. 4. By the said false and fi'audulent representation the plaintitt' was led to believe and did believe that the said company was in a sound condition and was a safe investment for money, and to apply for debentures to the value of £740 in the said comj)any. T). The plaintiff applied for the said debentures, and he paid for the same the sum of £740 to the said company, of which £370 was paid in cash and £370 l)y a surrender, by the plain- tiff to the said company, of forty-four ordinary shares and thirty preference shares held by the plaintiff' in the said company. 0. The plaintiff says that the defendant by the said repre- sentations deceived and defrauded the plaintiff' in this, that the said debentures did not constitute a first charge upon the properties and profits of the undertaking, and that the directors of the said company had not every confidence in offering the MISREPRESENTATION. 44-3 said stock as, and that the same was not, a sound invest- (jj^jju fo,. ment, and was not amply secured, and would not produce misrepre- a satisfactory rate of pr(_itit, all of which the defendant well -^ frau?Ui- knew. lent pro- 7. In fact the Credit Foncier of England, Limited, held at •"P*^*^*"^- the time aforesaid a large number of original debentures issued by the said C. C. Company, Limited, and also the title-deeds of the said company's property, as the defendant well kne^A■. 8. The Credit Foncier also, as the defendant well knew, held acceptances of the said company to a large amount, and a large portion of the property of the company as secmity for the liabilities of the said company to the Credit Foncier aforesaid. !). The said company, at the time of the issuing by the defendant of the prospectus aforesaid, was in fact insolvent, as the defendant well knew, and has been since wound up. 10. The plaintifl' has by reason of the premises lost the value of the said debentures and the amount which he paid iii respect of tlie same, and was and is otherwise damnified. The pluintitf claims : — (1.) £1500 damages. ('2.) Such further or otiier relief as the nature of tlie case may require. JSfatemenf of Defence. 1 . The defendant denies that he, with the intent mentioned Defgupg in the :3rd pai-agraph of the statement of claim or otherwise, fraudulently issued or published to the plaintiff the said pro- spectus in the said paragraph mentioned. 2. At the time mentioned in the said paragraph of the said statement of claim and of the resolution hereinafter mentioned, the plaintiff was a shareholder in the said company, and at an e.xtraordinaiy general meeting of the members of the said com- j)any duly convened and held, it had been, before the alleged committing of the alleged grievances, resolved that, " in addition to the borrowing power conferred upon the directors by the r>3rd clause of the Articles of Association, the directors, with tlie sanction ol' a general meeting, may from time to time borrow (jii mortgage of the ])roperty of the said c(jmpany or any part thereof, or on bond or debenture, or l)y creation and issue of debenture stock or otherwise, such sum or sums of 44)4 MISEEPRESENTATION. Defence to claim for iiiisrepre- Kentation in fraiulu- leiit pro- .spectus. money not exceeding £.")(),()()(», as tliey miglit see fit, and npoii such terms and conditions in regard to [)riorities, rate of interest, price of issue, and otherwise as tlicy might from time to time determine." o. After tlie })assing of the said I'esohition tlie directors <»f the said company, in accordance witli the powers they then possessed, proposed to borrow money by mortgage debentures and to issue tlie said prospectus in the said 3rd paragrapli mentioned with reference to the proposed borrowing and issue of the said debentures. The prospectus was accordingly issued and circulated amongst the shareholders, and was deli^^ered to the plaintiff as and being a shareholder in the said com^jany, with full notice that it was a specimen only of what it was proposed to issue and lay before the pul)lic at large, if the directors could be fortified by a minimum being i)reviously subscribed by the shareholders, and was delivered to and received by the plaintiif and other shareholders to enable them to clearly understand the mode in which it was proposed that the said board should proceed, and with notice that it was intended to be read in connection with the other statements of the directors and all other documents connected with the said company. 4. The plaintiff, when he first received or saw the said pro- spectus, had full notice of the facts stated in the 2nd and ord paragraphs of this statement of deftmcc. 5. By the said prospectus it was and is expressly stated, as the fact was, that the object of the issue of the said debentures was (amongst other things) to pay off an issue of £iM),0()0 and other obligations which the plaintiff then ^^'ell knew were and would be a prior charge upon the ])roperty and profits of the said company. The defendant at the time of the issue of the said jirospectus ])clieved that all the statements therein con- tained were true. (J. The defendant denies that by the said alleged representa- tions in the statement of claim mentioned the plaintiff was led to or did in fact believe that the said company was in a sound condition or a safe investment for money or to apply for de- bentures in the said company. On the contrary, the plaintiff iilways Avell knew the state and condition of the said company, and before and at the time when he first received or had notice of the contents of the said prospectus had the means of judging whether it was or was not, and then believed that it was, in a MISEEPRESENTATION. 445 sound state and condition, and that it was a safe investment Defence to for monev, and such belief was in no manner brought about by claim for misrepre- the said prospectus. sentation 7. The defendant denies that he by the said alleged reprc- Ignt^p^o^ sentations deceived or defrauded the iilaintiflF, and alleges that spectus. it was explained at the said meeting hereinbefore mentioned that the said debentures would be issued subject to a previous issue and a bill of sale, and it was explained to the plaintiff and the said other shareholders at a certain meeting at which he was present how this priority would eventually be removed. 8. The defendant and the other directors of the said company had eveiy confidence in offering the said stock, and believed that the same was a sound investment and amply secured and would produce a satisfactory rate of profit. All the statements contained in the said prospectus were true in substance and in fact. If they were not so, the defendant always l^elieved them to be so. D. The defendant admits the allegations contained in the fith and 7th paragi'aphs of the said statement of claim, but says that the defendant abvaj's well knew the facts therein mentioned. 1 0. If the said company, at the_ time of the issuing of the said prospectus, was in fact insolvent (which the defendant does not admit), the plaintiff had full notice of the fact when he applied for the said debentures. If he had not such notice, he could by the exercise of reasonable and proper care have ascer- tained it. 11, The defendant denies that the plaintiff, by reason of the matters complained of, has been or is injured or damnified as, or in the manner, or to the extent, in the said statement of claim allcired or at all. Arlion ar/ainfif Directors of a Compaiv/ for misreprespntaiion h]i frcnululmt Prospectus issued //// PulJic Accountants iritli Compel n if s Cofjnisance. I. The ])liiiiitiff resides at ?>., in the county of JM. The Claim defendants at all dates and times material to this pleading Jf^eytors were the directors of a joint-stock company known as the onfiaudu- V K' 'I ly lentpro- \. \. AA ompany. spectus. 446 MISREPRESENTATION. Cliiiiii jigaiiist (lirectoi-s of coiu- ])auy for misrcprc- seiitatioii liy fraudu- lent pro- spectus. ■2. On the 1st (lay of .^^ay, 1870, ^Messrs. A. and ^^., i>nl)lic accountants, acting as agents of the defendants, sent to the l)]aiiitiff, and the plaintiff received, a prosi)ectas imd letter re- lating to an issue of debentures in the said coni])any. ;>. The said prospectus and letter were issued by the authority nr with the sanction or acquiescence of the defendants. 4. The plaintiff, believing that the information contained in the said letter and pi'ospectus was true, and acting entirely upon the faith of the statements therein contained, subscribed for and took twelve of the said debentures, and paid the moneys payable in respect thereof, namely the sum of £ . The plaintiff's application was accepted, and the said twelve de- Ijentures were issued and allotted to hira by the defendants. T). The plaintiff has since ascertained that the following statements contained in the said letter and prospectus were and are false and calculated to mislead and deceive the plaintiff", and the plaintiff" alleges that the defendants f;dsely and fraudu- lently made the said statements to him, although they well knew that the same were fiilsc, with the intention to induce him to subscribe for and take the said debentures on the faith of them. The following are the false statements above referred to : — \_H('refullow the false skitemcnls.~\ C. The said debentures so bought by the defendant, upon the faith of the representations aforesaid, are altogether worth- less, and the plaintiff has entirely lost the sums of money which he paid in respect of them. The plaintiff" claims the said sum of & . Claim for iiiisrepre- scutation of the .solvency ■of a thirrl person. Action for ilisrqires^entation as to tlic Solvcnr;/ of anotlier Person. 1. The plaintiffs are corn merchants carrying on business at B., and the defendant C. W. is the manager of the S. branch of the G. bank. 2. In the month of , 18 — , the plaintiffs, through their bankers S. & Co., caused a letter to be written and sent to the MISREPRESENTATION. 44,7 G. bank, which said letter was in the words and figures follow- claim for ■mg, 01- to the f«llo«-iug c*ect :- ;-;-■;- " [ft-'"""-] iit:r' '' 8. Bank, 1>., 1y the defendant, the said J. F. was insolvent and totally unable to caiTy on his trade as a miller, as the defendant well knew, and his debts and liabiHties amounted to more than £1000 Ijeyond his assets, which w^as also well known to the defendant. o. In consequence of the said reply, the plaintiff's were induced to sell and deliver to the said J. F. goods on credit ; and in the month of '; 18—, the said J. F. was indebted to the plaintiffs in respect of such goods in the sum of £«ls. (;. In the month of , 18—, tlie said J. F. filed a peti- tion for liquidating his affairs by arrangement or compositi(jii, and the plaintiffs have lost £7H0 of tlie said sum of £818 so aid to use of plaintiff. Request miist be proved, except •where jilaintiff compelled to p;iy. When request implied. («) The actions comincr under the head of money are :— 1. For money paid to the use of the plaintiff at his request. 2. For money lent by the plaintiif to the defendant. H. For money had and received by the defendant for or on behalf of the plaintiff. Monnj jMid to thr vxr of thr j'lfiintiff.']— To maintain this action the following conditions are necessary, viz.— Cc/) That the money was paid by the plaintiff : {h) That it was paid at the request of the defendant. To support the first of these it is necessary to show that monry was paid, unless where stock (Ilon-ard v. Danbury, 2 C. B. 803), or a bill or note {Bfirday v. Goocli, 2 Esp. 571) is taken as equivalent to money. It must also appear that the money paid was the plaintiff's. (See Mofltr V. Fijrln', 11 East, 52 ; E.mll v. Partridge. 8 T. E. .308.) A request must be proved, even where the plaintifE has paid a debt due by the defendant. {Stolirs v. Lemk, 1 T. E. 20.) Eut a legal obli- gation to pay another's debt, as in the case of a surety, dispenses with an express request. (See John.wn v. //. 3[ail Paclut Co., L. E. 8 C. P. ;!8.) On this principle an accommodation acceptor who is sued in default of payment by the drawer may recover from the latter the amount of the bill paid by him {Brim- v. Burton, 21 L. J. Q. B. IT)?) : aJitrr if he paid it voluntarily. {Sh:iyh v. ,SIriy/i, o Ex. 514.) If he defends the action at the request of the drawer, he may recover the costs. {(lorrard v. Cottrdl, 10 Q. E. GT'J.) And such request is implied. (Strntton V. Matlmrs. 8 Ex. 48.) Where the plaintiff paid the funeral expenses of the defendant's wife, who was living apart from him at her death, which took place in the plaintiff's house, he was held entitled to recover, though he knew where MONEY. 449 2. Sucli loans were made on the terms that the defendant ^^^^^ ^°^^ ^ money lent, should rejjay the same by the 1st of October, 1875, and should pay interest thereon after the rate of 15 per cent, per to find the defendant, and did not apply to him. {Bradsliaw v. Beard, 31 L. J. C. P. 273.) If tlie plaintifE allows goods to remain on the defendant's premises •with his knowledge but without his express request until rent has become due, and the landlord has distrained, the plaintiff cannot recover from the defendant money paid by him to i^ay out the distress. An original lessee may recover in this action money paid by him for Lessee may breaches of covenant by the assignee, on the implied or express promise recover or covenant to indemnify {Motdc v. Garrett, L. E. 5 Ex. 132 ; aif. Ex. money Ch. L. R. 7 Ex. 101. See also Ilohcrts x. Crowe, L. R. 7 C. P. 63G, per paid for Willes, J. ; and Couch v. Tregonninrj, L. E. 7 Ex. 88.) As to costs paid breaches ill action on such breaches, see Howard v. Lovecjrom, L. R. 6 Ex. 43. of cove- If a person is compelled to pay money in consequence of his own nant by neglect or breach of duty, though it may be for the benefit of another, assignee of it cannot be recovered from the latter. {Pitcher v. Baileij, 8 East, the term. 171.) If there has been an express request to pay, the plaintiff may recover, though the debt was one which could not have been enforced, such as a wager {Knight v. Chambers, 24 L. J. C. P. 121), or a time bargain. {Bosr- ■warne v. Bitlinff, 33 L. J. C. P. 55.) A subsequent assent to the payment will be evidence of a previous request. (1 Wms. Saund. 2G4, b (2).) Moncij lent.]— The. plaintiff must show that the money was lent and not re])aid. The mere payment of money to the defendant is not evidence of a loan, as the presumption is that it was in payment of a debt. {M'elch v. Seaborn, 1 Stark. 474.) But if the plaintiff can show any transactif)ns from which the loan may be inferred, or an application for a loan at the time, this, coupled with payment, will be evidence of a loan. {Cin-ji v. Gcrrish, 4 Esp. D.) -Where money is advanced by A. to B. as a gift,'B.'s assent will be assumed, but if B. declines to accept it except as a loan, the advance is then a loan. {Hill v. Wilson, L. R. 8 Ch. 888.) WTiere A., at the request of B., agreed to lend C. money on D.'s giiarantee, and did so. receiving the following memorandum, signed by 0. and D., " We jointly and severally owe you £60," it was held that there was evidence of a loan. {Buck v. Hurst, L. R. 1 C. P. 21)7.) Money hud and received for plaint if.'] — The plaintiff must shovv that munei/ was received by the defendant, and that it was received b;/ him on account of the plaintiff. The action will not lie to recover a bank note against the fmdcr thereof, it not having been received (Chitty on Bills, inh ed., 524) ; aliter if cashed, {lb.) An auctioneer is the agent of both parties, and a deposit on a sale that goes off may be recovered from him as money received to the plaintiff's use. Where a deposit is paid to the vendor's solicitor, the vendor may recover it before the question of title is settled. {Edijcll v. Buij, L. R. 1 C. P. 80.) Profits made l»y an agent in the course of his employment belong absolutely to the principal, who may recover them as money received to the use of the plaintiff. {Morison v. Thonqison, L. R. 9 Q. B. 480.) Where an agent receives money to pay over to a third person, though Person he assents to hold it for that purpose, it cannot be recovered from him to whom by such third jjcrson until he has entered into a binding agreement to money is hold it to his use or comrmuiicatcs the fact to the third jicrson. i^Baron paid for v. JIu.sbavd, 4 J'.. & Ad. (\\ 1 ; Z/7/// v. Ilaijs, 5 Ad. & E. 548.) 'J'he holder another not of a bill cannot sue the accci)tor'H l>ankcr for the amount of the bill put liable to into the banker's hands to pay the bill. {Hill v. Boijds, L. U. 8 Eq. 2yo.) that other Mere pay- ment of money not evidence of a loan. What is evidence of a loan. 450 MONEY. Claim for money lent. ]\Ioiiey re- coverable on a total failure of considera- tion. ^[oney paid under mis- take of law not re- coverable. AUter, where mis- take is as to facts. Money ob- tained by fraud re- coverable. But the fraud, &c. , must be at once repu- diated. Money extorted may be recovered. aiumm. Particulars liavc been delivered to the defendant showing the sums lent, and when, and how much is due in respect of interest on each of the said loans. In cases of a total failure of consideration this action lies to recover money paid on such consideration. But where A. conveyed land to B., and A. covenants for title, and B. is evicted owing to A.'s want of title, A. cannot sue B. for money had and received, but can sue him on his covenant. {Clnrr v. Liimh, L. 11. 10 C. P. 83L) If the consideration has only partially failed, the money cannot be recovered. As where a premium is paid for instructing an apprentice for seven years, and the master dies at the end of the first year, no part of the premium is recoverable from the personal representative of the master. {Wlitncvp V. Ilmjhrs, L. R. G C. P. 78.) Money paid under mistake of law cannot be recovered back. {Piatt v. Bromagr, 21 L. J. Ex. 03 ; liarhrr v. Pott, 28 L. J. Ex. 381.) But money paid under a mistake of facts, which tlie party receiving has no claim in conscience to retain, can be recovered, though the plaintiff might have learned the real facts on inquiry. [Milnrs v. Piniran, (! B. & C. G71 ; Lucas v. Wors?ricL 1 M. & Bob. 293 ; Krlly v. Soluri, DM. & W. 51.) Scmhlc, before commencing an action a notice of the mistake should be given to, and demand of the money made of, the defendant. FrtTDUin V. Jrjf'rirx, L. R. -1 Ex. 189.) If a person voluntarily waives all inquiry into the truth, or pays the money with a full knowledge of the facts, he cannot recover it. (A77/y v. t^olari, supra ; Vinev v. Jlawliins, 23 L. J. Ex. 38.) Where bankers cash a customer's cheque, and afterwards discover that they have no assets of his, they cannot recover the money back from the person to whom they paid it. {Chamhcrs v. NiUrr, 32 L. J. C. P. 3U ; and see Pollard v. Bank of Enrjland., L. R. 6 Q. B. 623.) Money obtained by fraud may be recovered as money had and' received, but it cannot be recovered after it passes into the hands of a person who takes it hona fide and for value. {}Vatsun v. Itussdl. 34 L. J. Q. B. 93, Ex. Ch.) A person who seeks to recover the amount paid on shares which he has been fraudulently induced to accept, must do so while he is in a position to put both parties ?« statit quo. He cannot do so if he has received dividends, and has permitted the comi)any to be incoi'porated. {Addle V. Western Bank of Scotland, L. R. 1 H. L. Sc. 145, 105) ; hi\t he may sue for damages for the fraud. (7/y.) If the allottee of shares has repudiated them on the ground of fraud, and his name has been removed from the registry, the sums paid on the shares mav be recovered by him. ,SJiij) V. Crosskill, L. R. 10 Eq. 73 ; Ash'U-\s Case,'L. R. 9 Ch. G()4. Where a cheque was stolen during its transmission, and the thief forged an indorsement of the name of the payee to C. a person ignorant of the theft, to whom, on presenting it, the amount of it was paid, held that the payee nught waive the tort and recover the amount of it from C. as money had and received. A person who involuntarily pays money, which he is not liable to pay, in order to recover possession of his property or prevent some injury being done to the plaintiff or his firm, may recover it back. (See Kendal V. ^\ood, L. R. G Ex. 243.) So where a party to a reference has been obliged to pay an exorbitant fee to take up the award {Iloberts v. Bher- Jiardt, 28 L. J. C. P. 74, Ex.), or where a public otticer demands an ex- cessive fee. {Steele v. Williams^ 22 L. J. Ex. 225 : Den- v. Parsons, 2 B. & A. 5G2. ) So where a railway company refuses to deliver goods until payment of an unauthorized charge for carriage. (Sutton v. G. W.By.Co., MONEY. 451 3. All times have elapsed and things happened necessary to Claim for entitle the plaintiif to be paid the said sums, yet the defendant '"°'^^-^'^<^"*- has not j^aid the same or any part thereof. The plaintiff claims : — (1.) £150 in resi:)ect of princij)al. (2.) £37 in respect of interest. Claim hij Plauitifs in the Alternative for Monoy lent and on an Account stated. 1. Between the 23rd of Xovember, 1870, and the commence- Another ment of this action, the plaintiffs from time to time lent to the '^^^^'^ ^^^' defendant moneys amonntuig to £108 15s. Od., and paid for the kn^iet- dcfendant fi'om tune to time at his request smns amounting to *^"S °"*;*" £78 lis. ^d., the particulars whereof arc as follow : — case. 1870, Xov. 21th . Cash lent „ 25th . ditto . 1871, Jan. 15th . ditto . „ 17th . ditto . „ Aug. 6th . ditto . „ Oct. 20th . ditto . 1874 to 1870, Cash lent in yarious small sums £o(> 20 h (; 8 4 1) 12 (', 35 1(J 4 July 31st. Paid Messrs. Samuel Bros. £108 lo 1872, . £G 14 j> Not. 20th ditto , . 8 }2 (» 1874, April 21st ditto • . 9 13 1875 and i87r. ditto . . 30 5 () 1871 to 187(;. Paid Messrs. Kent Bros. . 23 12 1) 78 17 'J L. R. 4 H. L. 226; Baxcndale v. L. ^- S. W. Ibj. Co., L. K. 1 Ex. 137.) So if a sheriff obtain payment by wrongful seizure and threat to sell goods not liable to the execution. (I «//;// v. Mduhn/, 1 C. B. 5!»4.) Where a peiKon pays money for the recovery of' which an action is brought, even without prejudice, he cannot recover it. tliouirh the action was not well founded. (Brown v. MrA'iiuiUi/,} Esp. 27'.t.) So'if the money Money has been regularly recovered under legal I'jrocess. {Jlnmlrt v. Jiichard- ol.tiiiied .WH, 9 Bing. (144.) Even though recovered after judgment by a writ under le-d fraudulently issued to levy a sum already paid by the judgment debtor. ,,rnr.p«« °' iUc Mrdinav. aroir,\{iil.-[i.i:,2.) .- j => i-iocess *• , -^ . 1. Ji.,j cannot l)e ^ ^ '" recovered. 452 MONEY. Anotiicv 2. The plaintiffs will in the alternative, if necessary, allege money t]iat £85 IGs. Or?, of the said money was lent to the defendant lent, set- by the jtliiintiff M. R., and £-22 ISs. 8^?. by the plaintiff J. R., alternative '"^^^ that the wliolc of the £78 17s. dd. was paid by the plaintiff* ease. J. n^ for the defendant at his request. 3. The plaintiffs will further, if necessary, allege that on the 15th of March, 1875, the plaintiffs and the defendant met and An account \\'cnt through the various items of the accounts set out in the 1st stated. paragTaph, and that on that day an account was duly settled between the parties, showing a balance of £187 12s. 9^. due to the plaintiffs. The plaintiffs and each of them claim £187 12s. 9d., and interest thereon till judgment. Staicmmt of Defence. Defence. 1. The defendant denies that the j)laintiffs, or either of them^. ever lent to him or paid for him at his request any of the sums of money mentioned in the statement of claim, or any part of the said sums. 2. The defendant says that the said sums of money alleged tO' have been lent to him by the plaintiffs, or any of them, were all given to him by the plaintiffs, or one of them, in part payment of various services rendered by him to the plaintiffs, at various times between Deceml^er, 18G7, and July, 1876, in the capacity of secretaiy and otherwise to the plaintiffs, and secretary and manager of various companies started by them, and that the said sums of money alleged to have ])een paid by the plaintiffs- or one of them, for the defendant at his request were all paid by the plaintiffs, or one of them, for clothes supplied to the defendant by thedesire and at the expense of the plaintiffs in further part payment of the said services, and in order that the defendant might supjiort his character of secretary or manager as aforesaid by appearing ^\Q\\ and respectably dressed in public. 3. The defendant further says that if he was at any time previous to the end of the year 1873 indebted to the plaintiffs in any sums of money, he at the end of that year satisfied and discharged all claims of theirs in respect of any such sums of money by payment. 4. The defendant denies that any accounts were ever stated^ between the defendant and the plaintiffs, or either of them* MONEY. 453 regarding the said sums of money alleged in the statement of Defence to claim to be due from the defendant to the plaintiffs, or one ^oneyleut. of them. Claim hij Master of a Ski}) against Oinws for Money expended in repairing, een already advanced by them on the security of the said oil, remitted the whole of the said sum of £."»00 to Messrs. H. &, C. 5. Before the said remittance of £r)00 so sent by mistake 456 MONEY. Claim for reached England, Messrs. H. & C. had dissolved partnership, biTistakc! and had, by deed dated the , 1S7G, appointed the defendant, who is a solicitor of the Snprcnie Court of Judicature, their agent and trustee to collect the assets of the partnership and pay the creditors thereof. G. After the execution of the said deed, that is to say, in August, 1876, the said sum of £000 remitted by the plaintitfs under the circumstances aforesaid arrived in England, and came to the hand of the defendant, who received the same as an asset of the said partnership, as such agent and trustee as aforesaid. 7. The defendant, although requested so to do, has refused to pay the sum of £200, part of the said sum of £500 to the plaintiffs, and claims to retain the same as an asset of the said partnership. The plaintiffs claim £200. Statement of Defence. Defence. 1. The defendant does not admit the allegations contained in paragraphs 1, 2 and 3 of the statement of claim. 2. The defendant denies that the said sum of £500 was remitted to the said firm of H. & C. by any mistake or inad- vertence, and says that the said sum was so remitted in part payment of a balance of account due from the plaintiffs to the said firm, and further says, that after giving credit to the plaintiffs for the said sum of £500, a forther balance remains due from them to the said Messrs. H. & C. 3. The defendant admits that on the dissolution of the said firm of H. & C. he was hj deed appointed attorney to collect the partnership assets. By the said deed it was provided that the defendant should be at liberty to make the usual charges of a solicitor for all work done by him as such attorney under the said deed. Save as aforesaid, the defendant does not admit the allegations of the 5th paragraph of the statement of claim. 4. The defendant admits so much of the Cth paragraph of the statement of claim as alleges that he received the said sum of £500 as part of the partnership assets, and says that the said sum was part of the partnership assets. 5. The defendant has duly accounted for all assets received by him in accordance with the provisions of the aforesaid deed. MONEY. 457 INfo part of such assets remains in the hands of the defendant, but on the contrary, a large sum of money is due to the defendant for his costs and charges under the said deed. Claim for Money imkl ly Mkiake. 1. The plaintiffs are carpet manufacturers, carrying on Aiotlier rT. -■ . n -, L i' ~^T ^ claim for business at H., in the AVest Eidmg of the county ol lork. money paid 2. From the loth January, 1875, to September of the same by mistake. year, the defendant was employed by the plaiutitis as their traveller and salesman for the pm-pose of obtaining orders for and of selling the goods of the plaintiff's. 3. The defendant's travelling expenses were to be paid by the plaintiff's, and the defendant was further to receive fi-om the plaintiff's a certain commission upon all moneys realised from the sale of the plaintiff's' goods by the defendant, and a fixed salary at the rate of £100 per annum. 4. For and in respect of the defendant's services mentioned in the 2nd paragraph hereof, and for his above-mentioned travelling expenses, various sums of money were from time to time paid in cash by the plaintiff's to the defendant, and the defendant was allowed by the plaintiffs to di-aw upon them for any money he might require, upon the understanding that the total amount of money so paid in cash as aforesaid to and dl•a^vn and received l^y the defendant should not exceed the amount due and owing from the plaintiffs to the defendant for and in respect of the said commission, salaiy, and allowance for ^travelling expenses mentioned in the preceding paragi'aph hereof 5. In or about the said month of September, 1875, on going through their accounts with the defendant, the plaintiff's dis- covered, as the fact was, tliat the defendant had overdrawn his account with the plaintiffs, and that the total amount uf money paid as aforesaid by the plaintiff's to the defendant, and drawn and received by the said defendant from the i^laintiff's whilst in their said service and empli 2s. hd. Claiia for Moncij paid hij Piai/ifijf's on Acceptances, wliich were ohtained Jnj 3Hsreprescntation. Claim for 1 . Tlie plaintiffs are merchants in London, and the defendants money paK _^^.^ merchants carryino- on business in Messina in Sicily. on accept- ./ o •/ ance frau- 2. On the loth of November, 187G, a contract was entered anlently .^^^^^ bet^yeen the plaintiffs and the defendants for the sale to the plaintitts by the defendants of a cargo of brimstone. The said contract was made and signed by Messrs. J. B. G-. & Co., merchants in London, acting as agents for and on behalf of the defendants, and it was provided by the said contract, among other stipulations not material to this action, that the said cargo of brimstone should be shipped from one of the usual loading places in Sicily during the months of December January next, and that the same should be paid for by the plaintiffs' acceptances at ninety days from date of the bill of lading. o. The defendants did not ship any cargo during December and January, or during any part of the said period pursuant to contract, nor has any cargo so shipped been delivered by the defendants to the plaintiffs as agreed. 4. On the Gtli February, 1877, the defendants completed the shipment of a cargo of brimstone, and fi-audulently procured the bill of lading for the same to be dated the 31st Januaiy, 1877, with intent thereby to induce the plaintiffs, who were ignorant of the premises, to believe that the said cargo had been shipped during December and January pursuant to con- tract. 5. The said bill of lading so misdated was thereupon pre- sented by the defendants to the plaintiffs, together with au invoice, in which the defendants had also fraudidently inserted the date of 31st January, 1877, with a similar intent. By thus fraudulently representing to the plaintiffs that the said cargo had been shipped during December and January, and fraudulently concealing from the plaintiffs that the shipment MONEY. 459 was not completed till the Gtli of February, the defendants Claim for induced the plamtiffs to, and the plaintiffs did accept, the said on'^accept-' bill of lading and invoice, and in retimi to give, and the plain- ance frau- tiffs did give to the defendants, the plaintiffs' acceptances of obtained. drafts drawn by the defendants at ninety days' sight, to the amount of £3573 9.s. Gd., and such acceptances have been duly paid. G. Shortly after the arrival of the said cargo in America, and after certain expenses and charges in respect thereof had been incurred by the plaintiffs, the plaintiffs for the first time l)ecame aware that the said cargo was not shipped in pm-suance of con- tract, and thereupon the plaintiffs declined to receive the same. 7. The plaintiffs suljmit that they were entitled to reject the cargo actually shipped as not being the cargo agreed to be shipped, and they claim accordingly to recover back from the defendants the amount of the plaintiffs' acceptances, to wit, the sum of £3573 95'. Or/., together with divers expenses and charges to the amount of £550 incmTcd by them in respect of the cargo. 8. In the alternative the plaintiffs claim damages for the fraudulent misrepresentation and concealment aforesaid, by which they were induced to receive a bill of lading for a different and less valuable cargo, and also damages for the non-delivery by the defendants of a cargo in conformity with contract, by reason of which the plaintiffs have lost the benefit of their contract, and have had shipped to them an inferior and less valuable cargo. The plaintiffs claim : — (1.) £3573 9.S-. (jd., price of the said cargo. (2.) £550 for charges and expenses. (3.) Interest on the above at £5 per cent, per annum from the date of contract. (4.) In the alternative, £5000 damages for the fraudulent breach of contract mentioned in paragraph 8. (5.) Such other or further relief as may seem to be required. Money paid hi/ I'hiinliff at Defendant's Request for Bets. 1. In or about the month of June, 187G, the defendant Claim for agi-eed with the plaintiff" that, in consideration that the plaiutilf j|yp]Yintiff 4G() MONEY. at defend- would make bets fur the cleieiidant as to the result of the Oaks qulst.'^" '^'^^^> s^c^ ^^^^ ^^0*^ ^^ exceed £100, the defendant would repay- to the plaintiff any moneys not exceeding £100, which the l)laintirt' might have to pay in consequence of the loss of such bets. The defendant gave to the plaintiff' the names of the various horses he wished to have backed, and mentioned the sums of money he wished to have put on each of them. 2. Subsequently, and in pursuance of the said agreement, the plaintiff made for the defendant bets upon the said horses so named by the defendant, and for the sums of money so mentioned. The total amount of the said l)ets was £G0, 3. All the said bets were lost, and the plaintiff' had to, and did pay, the said sum of £60. 4. Yet the defendant has not repaid to the plaintiff the said sum of £00 so due to the plaintiff as aforesaid, or any part thereof. The plaintiff claims £G0. Action for 3Ioncy had and recciced. iMoney had {a) 1. One C. J. M. paid to the defendant for the use of the and re- plaintiff £95, and the defendant had and received the said sum from the said C. J. M. for the use of the plaintiff. 2. The defendant, with the consent of the plaintiff', retained £5 as commission for his trouble, and paid to the plaintiff" the sum of £40, parcel of the said £95 so received by him as afore- said, leaving a balance of £45, which is wholly due and unpaid to the plaintiff. The plaintiff claims £45, and interest thereon from &c. {a) This claim was drawn in the case of Bartlctt v. Boclie (W. N. 187(), p. 54), and on objection taken was allowed by Archibald, J., to be good. It was iirged that the circumstances under which the defendant received the £!I5 should be stated, and also when, where and under what circumstances the account was stated between i:)laintifE and de- fendant. Archibald, J., however, said, '• The only material facts in this case are, that the defendant received the money, and that he received it for the plaintifE's use. Where the old forms will serve as models, they are not necessarily abolished by the Judicature Acts. Where the de- fendant has received a sum of money for the plaintifE, the statement of that fact is all that can be required." NEGLIGENCE. 461 Mortgage. See Recovenj of Land. Negligence (")• Action for Xcgligcnce in unJoading Goods causing Personal Tnjurg. 1. The plaintiff is a cook, and in the month of August, 187C, was in the service of Mr. , of No. — , Terrace, (fl) A person is liable for his or her own negligence, or for the negli- gence of a servant, causing actnal injury or loss to another. But it is not enough that the plaintifE has been injured, and so injured by the act of the defendant. To found an action there must be negligence on the part of the defendant directly bringing about the injury ; and the onus of proving such negligence, except in a few cases where the law presumes it, lies on the plaintiff. Wliere the injury is the result of virrc accident, no action lies ; thus, where the coachman was driving in the middle (if the road, and not on his own side, biit there were no other coaches on the road, and the horses took fi-ight and overturned the coach, this was held to aflEord no evidence of negligence ( U'dl'oiuai v. Bdhinson, 1 Bing. 213) ; so where an injury was inflicted by a horse on which the defendant was riding, and there was no proof that he omitted to do anything in his power to prevent the accident, the plaintiff was nonsuited. {Ilaimnach V. Mliitc, L. J. 31 C. V. 129.) Aiv/ act of negligence on the part of the defendant is insufficient. " The negligence must in some way connect itself or be connected by evidence with the accident." {JacJison v. TIic Metropolitan Jl'j. Co., 37 L. T. N. S. G79, per Lord Cairns.) » It is not sufficient to prove 'some act of negligence, unless it be proved that such negligence was the direct cause of the injury complained of." (Ibid.) The pleader is referred to the case cited — Jacltson v. The Me- tropolitan If;/. Co. — as the most recent and most authoritative exposi- tion of the law on this subject. It has been said that the onus lies on the plaintiff of jjroving negli- gence ; but the accident may take place under such circumstances as to he prima facie evidence of negligence, for the happening of something that would not happen if ordinary skill and care were used is evidence of negligence {(rre v. Metropolitan Ilailmnj Co., L. R. 8 Q. B. 17;"), per Brett, J.), as where a collision takes i)lace between two trains of the same company. {Skinner v. L. ,^- Jiriahton llij. Co., 5 Exch. 787.) 8o proof that a stage-coach broke df)wn raises a presumption that the accident arose either from the unskilfulness of the driver or the insutlicicncy of the coach. {Chri.stie v. Gri^pjx, 2 Camp. 7i).) So, where B., walking in a street in front of the house of a flour-dealer, was injured by a barrel of flour falling upon him from an upper window, it was held that the mere fact of the accident was evidence to go to the jury in an action against the flour-dealer. {Jit/rn/; v. Jioadle, L. J. 33 Ex. 13. See also Sr.ott V. London J)oeh Co., L. J. 34 Ex. 17, 220, Ex. Ch. ; Kearney v. L., liriiihhni, .^- S. C. Uij. Co., L. K. Q. B. 75!).) Although a person is liable for the act of a servant causing injury to another, such liability only exists where the negligence was committed Claim against master for negligence of servant causing injiuies. Onus of l^roviug negligence usually on the plaintiff. Injuries caused by mere acci- dent not actionable. Any neg- ligence not enouKli. Wlien neg- ligence may be inferred from tlie mere fact of the oc- currence. 402 NEGLIGENCE. Claim iigainst mastei" for tlic negli- gence of servant causing injuries. A master is not liable for the wilful and malicious act of ser- vant. Person not usually liable for the negli- gence of contractor employed liy him. €ontribu- toi-y negli- gence. llyde Park, and the dcl'endaiit is an ice merchant canying on business at No. — , Street, in the city of London. at a time when the servant was going about his master's business,- and acting, however injudiciously as it turns out in the event, as he thinks in the interest of his employer. It is long since the law was laid down that a master is not answerable for the wilful and malicious act of liis servant. {Jl'J/tuiiix v. Crichrtt, 1 East, ]0(i.) Thus, where the defendant's servant wantonly, and not for the purpose of executing his master's orders, strikes the plaintiff's horses, and thereby produces the accident, the master is not liable ; but where the servant, in the course of his employment, and in order to extricate himself from a difticulty, so strikes them, although injudiciously, his master is liable. {Croft y. Alixon, 4 B. & A. 5i>'sonaIis moritur oim 2)rrsond applied. It is true that if the personal representatives could allege and prove that the personal estate of the deceased had been directly depreciated by his death, they might sue and recover, (^ee SiridsJiam v. L. S) Y. By. Co., L.'jR. 10 C. P. 189.) And this right still remains to execi;tors and administrators. In the vast majority of cases, however, this action provided no remedy for the more heart-rending cases where the bread-winner of the family had been suddenly cut off by the negligence of another ; and accordingly the 9 & 10 Vict. c. 93 was enacted. It enables the personal representatives- of the deceased to bring an action for the benefit of the wife, husband,, parent (including in the term father, mother, grandfather, grandmother, stepfather, stepmother), or child (including in this term son, dai^ghter,. grandson, granddaughter, stepson, stepdaughter) of the deceased '' when- ever the death of a person is caused by any wrongful act, neglect or default which would (if death had not ensued) have entitled the party injured toam action." The jury can only give damages for actual pecuniary loss wliich the i)arties for whose benefit the action is brought have suffered ; they can give no compensation for mental suffering or anguish, nor for funeral expenses, and they should take into account, in reduction of damages, the amounts which the parties have received under any policies of insurance. The essential ingredients in an action under the statute would seem to be : 1 . Executor or administrator must bring the action within twelve months ; or by 27 & 28 "V'ict. c. 95, s. 1, where there is no executor or administrator of the person killed, or there being such executor, &c., no action is brought within six months by him, the action may be brought by the persons beneficially interested in its result. 2. Action must be brought for the benefit of some one of the class of persons specified in the Act. 3. Negligence on the part of the defendant causing the death of the deceased. 4. Actual pecuniary loss to some one of the class of persons for whom the action is brought ; but it would seem that the fact of the pecuniary loss need not be averred in the statement of claim. ( CMp- man v. BothnrU, L. J. 27 Q. B. 315.) The action, which an executor or administrator may bring in respect of depreciation to the personal estate of the deceased, must be carefully distinguished from the action which executors or administrators may bring under Lord Campbell's Act (the 9 & 10 Viet. c. 93). The latter action is brought on behalf of a certain class of persons, the damages recovered NEGLIGENCE. 4G5 allowed to fall on the plaiiititt" from a great height, whereby the claim plaintiff was severely bruised and injured about the neck and agamst i '' -in master tor back and other parts of tlie body, and her shoulder was trac- the negli- tnred and dislocated, and she has become and is in consequence sence of Ins , - sei"vaiit. of the said injuries permanently disabled and dishgured. 3. The plaintiff has also incurred expenses for medical at- tendance, nursing, and sm*gical appliances, and for suitable food and nourishment, and she has been put to other expenses. She has also been, and ^ill for a long time be, prevented from attending to her business by reason of the said injuries. The plaintiff claims £300 damages. Statement of Defence. 1. The defendant does not admit that Iiis servant was guilty Statement of any negligence in dealing with the block of ice mentioned in ° ' ^ ^°^^' .the 2nd paragraph of the statement of claim, and says that the injuries alleged to have been sustained by the plaintitf were jiot the result of any negligence on the part of his said servant. 2. AMiile the defendant's servant was endeavoming to con- Coutribu- vey the said block of ice through the area gateway and into *°Qgg"^° ^' the house of the plaintiff's master, the plaintiff, without being requu'ed by her duty so to do, loitered in the said area, and jieedlessly and carelessly exposed herself to danger in the event of the said block of ice accidentally falling ; and the defendant says that the plaintiff might, by the exercise of reasonable care and diligence, have avoided injuiy from the said accident. 3. The defendant does not admit that the plaintiff sustained the injuries mentioned in the 2nd and 3rd paragraphs of the statement of claim, or that she has incurred the expenses and has suffered or will suffer the losses in the said paragraphs mentioned. are divided amongst them alone, and the general estate of the deceased .^„^^l tl,.^^, is not at all benefited hj it ; whereas the damages recovered in the former f^j. deprc- action go to swell the personal estate of the deceased, and are dis- ciation of tributed in due C(;ur.se of administration. It follows from this that personal recovery by personal representatives in one form of action is no t^ar to jniuries. their suing again in the other form of action the very same defendant in respect of the same negligence. So that where a man has been killed by the negligence of another, his executors may possibly first (if all recover damages against him for injury to the personal estate, and then recover damages for the pecuniary loss which his near relatives have sastained by his death. H H 4GG NEGLIGENCE. Stateiuent of chiim for injuries tlirougli negligence in iiuload- inrf van. Statement ot defence of the rail- way com- pany. Action mjainst Baihccuj Company and their Confracfor for Nc(j- ligcnce in nnlGadiiuj a Van causinfj Personal Injury. 1 . The plaintiff is a porter, and at the time of the occur- rence of the neghgence hereinafter mentioned, was employed at , on certain premises belonging to Messrs. L. & Co. 2. The defendants are the Railway Co. and the con- tractor for carriage of goods employed by the said company. 3. On the day of , 1877, the plaintiff was lawfully in and about the said premises on which he was employed, and one of the defendants' vans, whilst under the management and control of the defendants, or one of them, Avas standing for the purpose of being unloaded in the street close to the said pre- mises. 4. The defendants, or one of them, by their sen'ants and agents so negligently, carelessly, and unskilfully managed the said van and the unloading of the same, that a baiTcl then being on the said van fell therefrom and struck against the plaintiff, whereby he was thrown down, and received a com- pound fracture of the ankle, and was greatly bruised and con- tused in other parts of the body. He was and is permanently injm-ed, and was, and still is, and is likely to be for a long- time, prevented from attending to his business and employ- ment, and has incurred medical and other expenses, and is otherwise damnified. The plaintiff claims against the defendants, or one of them„ £200 damages. Statement of Defence of Defendants, the Railway Co. 1. In answer to the 3rd paragraph of the statement of claim,, the defendants deny that the said van was at the time therein mentioned under the management or control of the defendants. On the contrary the defendants say that the said van was then under the management and control of the servants of one B., a town cannan, and that tlie defendants are not liable for any neglect of the servants of the said B., if any, which the defen- dants do not admit. 2. In answer to paragraph 4 of the said statement of claim, the defendants deny that they negligently, carelessly, and un- skilfully managed the said van, and the unloading of the same^ NEGLIGENCE, 4G7 or that by and tlirongli tlie negligence of the defendants, their Statement servants and agents, the plaintiff was injured in the manner jjy railway alleged, or otherwise. company. 3. In further answer to the said statement of claim, the defendants say that any iujmy that resulted to the plaintiflF was caused by his own want of care and caution, which con- tributed to the accident, and which is sufficient to prevent the jilaintiff maintaining the present action. Statement of Defence of second-named Defendant. 1. The defendant Ann B. does not admit the several allega' Statement tions and statements in paragraphs 1 and 3 of the statement of ^ con-'^'^^ claim. tractor. 2. The said defendant denies that there was any negligence, carelessness, or unskilfulness in or about the management or unloading of the said van, as alleged in paragraph 4 of the statement of claim, or that the plaintiflF sustained the damage or was injm'ed as is therein alleged. 3. Tlie said defendant further says that the plaintiflF could and would, by the exercise of ordinary care and discretion, have avoided the said alleged accident, and by his negligence contributed to the said accident. 4. The defendant denies that the jilaintiff has sustained the injuries and damages mentioned in the statement of claim. Action hj Infant, hij next Friend, for Injury through, leaving a Horse unguarded in the Street. 1. The i^laintiflF is an infant about the age of eight years, and claim for the defendant is a miller and grocer living in the city of C, ^^W'y 1 • , 11 1 ^ 1 ■ • . • • 1 tlirough and is the owner of a van and liorse used l)y lum ni his said leaving business. horse un- 2. On or about the day of April, 1877, the said horse the street. and van of the defendant wxre in charge of a driver who was a ser^•ant of the defendant. 3. On the said day the said driver left the said horse and van alone and unattended in Street, in the said city of C. Wliilst tlie said liorse and van were standing alone as aforesaid, the said horse started Ibrward, and the plaintiff, who was at H H 2 4C8 NEGLIGENCE. Claim for injury through leaving horse un- guarded in the sti'eet. that time lawfully in Street, was knocked down by the said horse, or by the said van, and was crushed and had her right thigh fractured, and she is in consequence thereof per- manently crijipled and injured. 4. The defendant by his said servant was guilty of careless- ness, negligence, and improper conduct in leaving the horse and van unattended, and the defendant was guilty of carelessness, negligence and im})roper conduct in sending out the said horse and van with no attendance other than that of the di'iver. The plaintiff was injured as aforesaid by and through the said care- lessness, negligence, and improper conduct hereinbefore men- tioned. The i^laintiff, by her said next friend, claims £500 damages. Statement of defence. Contribu- tory negli- gence. Staiement of Defence. 1 . The defendant denies that the said horse and van were left unattended, and that the same were standing alone, and that the defendant's servant was guilty of any carelessness, negligence, or improper conduct. 2. At the time the alleged accident in the 3rd paragraph of the statement of claim mentioned is alleged to have occm-red, the said driver was with the said horse and van, and in attendance on the same, Ijut the plaintiff was improperly left unattended playing in the public streets, and those who had or ought to have had the custody of licr ^vere guilty of gxoss carelessness, negligence, and improper conduct in allowing her to be in the position she was at tlie time when the alleged accident occurred, the plaintiff having then improperly crawled under the said van upon the ground immediately before the wheel of the said van, and being in the act of endeavouring to get a ball which had been by her improperly thrown under the said van. Whilst the plaintiff was, without any default of the defendant's said servant, in that improper position, and by reason thereof the said horse moA'ed slowly forward, and the plaintiff was injured l)y the wheel of the said van, without any neghgencc or default on the part of the defendant's said servant. 3. The defendant says that the alleged accident complained of was caused by the negligence and improper conduct of the NEGLIGENCE. 4G9 plaintiff", and those in wliose cnstudy she was or ought to hare Statement been. Or that if it were not altogether caused thereby, yet that the plaintiff and those in whose custody she was or ought to have been, by her and their negligence, were directly contribu- tory thereto, and the said accident would not have occuiTed without such negligence on the part of the plaintiff and those in whose custody she was. 4. The defendant does not admit that the plaintiff sustained such damage as in the 3rd paragTaph of the statement of claim is allew'ed. lamp by reason of its defec- tive con- dition. Injury to Plaintiff hy Fall of a Lamjh 1. The plaintiff is a journeyman tailor, residing at — Y. Claim for Street, Fulliam. 3^^,j^ 2. The defendant is a publican, canying on his business in faUing of a the B. Road, Chelsea, and he has for a long time past had a certain lamp hanging over the entrance to his bar in the B. Road aforesaid. 3. On the 12th of May, 187C, the plaintiff was lawfully pass- ing along the said B. Road, when the said lamp fell on his head, and inflicted serious womids and iujm'ies upon him. 4. The falling of the said lamp was caused by the negligence of the defendant in felling properly to secure the same, and in neglecting to make sundry necessaiy repairs thereto. 5. In consequence of the premises the plaintiff was fur many weeks confined to his Ijed, and suffered great pain and anguish. He lost large sums of money that he would otherwise have earned as wages, and was put to expense for medical attend- ance. Particulars of the items composing the plaintiff's claim have been delivered to the defendant. The plaintiff claims £250 damages. Statement of Defence. 1, The defendant admits that the lamp mentioned in the Statement statement of claim fell on the 12th of :May, 187C, and, in so ° doing, it grazed the plaintiff's cheek, and inflicted a trifling bruise upon his shoulder. 2. The defendant denies each and every the aUegations con- tained in the 0th paragraph of the claim. 470 NEGLIGENCE. Statement of defence. Payment into Court. Statement of claim in a ''run- ningdown" case. Defence. 3. The dofeiulaiit bviiigs into Court the sum of £5, and says that it is sufficient to satisfy the plaintiH^s claim in this action. XcijJigcncc of DofcndanVs Servant, irhcrchy riainliff was run over ill the Slrcpts. 1. The plaintiff is a shoemaker, carrying on business at . The defendant is a soap and candle manufacturer, of . 2. On the 23rd May, 1870, the plaintiff was walking east- ward along the south side of Fleet Street, in the city of London, about 3 o'clock in the afternoon. He was oUujed (a) to cross Street, which is a street running into Fleet Street at right angles on the south side. While he was crossing this street, and just before he could reach the foot-pavement on the further side thereof, a two-horse ^'an of the defendant's, under the charge and control of defendant's servants, was negligently, suddenly, and without any warning, turned at a rapid and dangerous pace out of Fleet Street into Street. The pole of the van struck the plaintiff and knocked him down, and he was much trampled by the horses. 3. By the blow and fall and trampling, the plaintiff's left arm was broken, and he was bruised and injured on the side and back, as well as internally, and in consequence thereof the plaintiff was for four months ill and in suffering, and unable to attend to his business, and incurred heavy medical and other expenses, and sustained great loss of business and profits. The plaintiff claims £ damages. Statement of Defence. 1. The defendant denies that the van was the defendant's van, or that it was under the charge and control of the defendant's servant. The van belonged to Mr. John Smith, of , a carman and contractor employed by the defendant {a) This being one of the forms in the schedule of the Act of 1875 has something of authority in its favour. Were it not so fortified, we would, venture to strike out the word " obliged," as it seems to us that a person who is crossing a street without being '• oljliged" to do so, may neverthe- less maintain an action for an injury sustained by him while crossing by another's negligence. Crossing a street without a direct and important object necessitating one's doing so would scarcely amount to contributory negligence. '^^-i «i«5f- '€C^ £- - V Z . i^»*^i^^^B^ ilC^^i^U^UU:^ ^eyi- /iP^t/ NEGLIGENCE. 471 to carry and deliver goods for him ; and the persons under Statement whose charge and control the said van "^'as were the servants of the said Mr. John Smith. 2. The defendant does not admit that the van was tm-ned out of Fleet Street either negligently, suddenly, or without warning, or at a rapid or dangerous pace. 3. The defendant says that the plaintiff might and could, by the exercise of reasonable care and diligence, have seen the van approaching him, and avoided any collision with it. 4. The defendant does not admit the statements of the 3rd paragTaph of the statement of claim. Action hij Sermnt against blaster for Negligmce. ivliilc person- ally mterj)osing in the Worh. 1. The plaintiff is a labourer, and the defendant is a builder. C'=^'i" 'o' 2. On the 20th of March, 1877, while the plaintiff was in alic Works. 1. The plaintiffs are an incorporated company, and are the Ijroprietors of the Bradford Canal, and the oAMicrs and occujiiers of the land through and upouAvhich the said canal is constructed. 2. In or about the months of January and February, 187G, the defendants the mayor, alderman, and burgesses of the borough of Bradford employed the defendants B. K. and A. NEGLIGENCE, 473 E. to construct a se-^'er which was to pass under the bed of the Claim for Ti -r> • T injury to plamtiiis said canal near J^ . -bridge. canal by 3. The defendants B. K. and A. E. acting under the orders negligence of the defendants the mayor, alderman, and burgesses of the ouXw of borough of Bradford, and in piu'suance of the said emplopnent, water. came with a number of their workmen and entered upon the plain- tiffs' said land near F. Bridge, and dug a hole in the plaintiflfs' said land there, and constructed a sewer under the bed of the plaintiff's said canal there, and on the 9th of February, 187G, by reason of the construction of the said sewer, caused the water to run out from the said canal, and thereby interfered with the use of the said canal, and f a- a long time stopped the navigation thereon. 4. The grievances in the last i)aragra})li mentioned were caused by the neghgent and improper and defective construc- tion and jjlacing of the said sewer under the bed of the said canal by the defendants B. K. and A. E., and by the negligent omission by them and by the other defendants the mayor, alderman, and burgesses of the borough of Bradford, to protect the said canal l)y proper works during the construction of the said sewer. 5. The said construction and placing of the said sewer was in accordance with the plans and specifications and directions given and ftimished to the defendants B. K. and A. E. for their guidance and use in constructing and placing the said sewer by the defendants the mayor, alderman, and burgesses of the borough of Bradford, 6. The plaintiffs in the alternative allege that the construction of the said sewer under tiie bed of their canal was a work which required the drawing off of the water from the said canal. 7. The defendants the mayor, alderman, and burgesses of the lx)rough of Bradford did not give to the plaintiffs a notice requir- ing the water to be drawn off as recpiired by the " Bradford Canal Act, 1871," but caused the sewer to l^e constructed without the water being drawn off', and in consequence of such omission the water escaped from the canal, and the use of the canal was interfered witii, and the navigation thereon for a long time stopped. 8. In consequence oi' the matters above stated, the plaintiffs lost a large sum of money which they would have received as 4/ 4 NEGLIGENCE. Claim for injury to canal by negligence causing outflow of water. tolls i'ur the use of the canal, and iiicuiTed great expense in repairing- the canal and refilling it with water, and lost a large quantity of water, and became liable to pay large sums for the delay and demurrage of barges and for the delay in the conyey- ance of barges and goods over their canal, and in the reception of the same upon their canal. The i)laintiffs claim £800 damages. Statement of defence of corpora- tion. Statement of Defence of the Mayor, Alderman, and Burgesses of the Borough of Bradford. 1. These defendants say that they are the urban sanitary authority for the borough of Bradford, which is an Urban District under the Public Health Act, 1875, and within which the plaintiff's' land and the bed of the canal mentioned in the 3rd paragraph of the statement of claim arc situated. 2. These defendants say that notice of action as required by the said Public Health Act, 1875, was not given to them pur- suant to the said Act. 3. These defendants say that leave was given by the plaintiffs to these defendants and to the defendants B. K. and A. E. to enter upon the said land of the plaintiffs. 4. These defendants say that they employed the defendants B. K. and A. E. to construct the said sewer only upon the terms of an indenture made the 13th day of October, 1875, sealed with the common seal of these defendants, and executed l)y the defendants B, K. and A. E., whereby {inter alia) it was agreed between these defendants and the defendants B. K. and A. E. that the work was to be done under the direction and to the satisfaction of these defendants' surveyor, or such other person as should be appointed by these defendants, and whereby it was fm'ther agreed that the works Avere to be carried on in such portions and in such manner as the surveyor should direct. 5. These defendants deny that the grievances mentioned in the 3rd paragraph of the statement of claim were caused by anything done under the direction of their surveyor, or by any other person appointed by them. G. These defendants deny that the grievances in the said 3rd paragraph mentioned were caused Ijy the negligent, improper NEGLIGENCE. 475 and defective construction and placing of the said sewer under Statement , , , T ,. 1 , -r> T^ 1 \ r> 01 defence the bed of the said canal by the defendants B. iv. and A. h., ^f corpoia- and deny that if they were so caused, the construction and t^"- 2>lacing of the said sewer was in accordance with the plans, specifications, and directions given and furnished by them to the defendants B. K. and A. E. for their guidance and use in constructing and placing the said sewer. 7. These defendants further deny that the grievances in the said 3rd paragraph mentioned were caused by the negligent omission by them to protect the said canal by proper works. 8. These defendants say that they, by their surveyor gave such directions and ordered the works to be carried on in such portions and in such manner as were necessary for the duo and proper construction of the said sewer under the plaintiffs' canal. 9. These defendants do not admit that the construction of the said sewer under the bed of the said canal was a work which required the drawing off of the water from the said canal, and they say that if it was such a work, it was agreed between them and the plaintiffs that the water should not be drawn off from the said canal, and that by reason of such agreement a notice requiring the water to be drawn off was not served upon the plaintiffs. 10. These defendants deny that the water escaped from the canal, and that the use of the canal was interfered with and the navigation thereon for a long time stopped in consequence of these defendants not having given to the plaintiffs a notice requiring the water to be dra\vn off as required by the Bradford €anal Act, 1871, but having caused the sewer to be con- structed without the water being drawn off. 11. These defendants do not admit the allegations contained in the 8th paragraph of the statement of claim. Stalcm-nt of Defence of B. K. and A. E. 1. The defendants B. K. and A. E. were employed to con- Defence of . , , coutractor.s. struct the sewer mentioned m the statement oi claim hy tlie defendants the mayor, alderman, and burgesses of tl)e borougli of Bradford, as and being the urban sanitary authority of tlie borough of Bradford, wliic'li is an Urban District under the 47G NEGLIGENCE. Defence of Public ITcaltli Act, 1875, aiul uitliiii which the plaintiffs' said laiul and the bed of the plaintitfs' said canal are situated. '1. By virtue of the said rul)lic Health Act, 1875, and of the Bradford Improvement Act, 1850, and the other Acts in- corporated with and amending the same, the defendants B. K. and A. E., as the servants of the defendants the mayor, alder- man, and burgesses of the borough of Bradford, were entitled to enter the plaintiff's said land and construct the said sewer under the bed of the plaintiff"s said canal, and the defendants B. K. and A. E. entered the said land and constructed the said seT\'er by virtue of the powers conferred upon the defendants the mayor, alderman, and burgesses of the borough of Brad- ford by the said statutes. 3. The plaintiffs consented to the defendants B. K. and A. E. entering upon the said land and constructing the said sewer under the bed of the said canal, as the servants of the defendants the mayor, alderman, and burgesses of the borough of Bradford. 4. The defendants B. K. and A. E. deny the allegations in the 4th paragraph of the statement of claim, and say that they Avere not guilty of any negligent, improper, or defective con- struction or placing of the said sewer under the bed of the said canal, or of any negligent omission to protect the said canal by proper works during the construction of the said seA\'er. 5. The defendants B. K. and A. E. do not admit that the construction of the said sewer under the bed of the said canal Avas a work which required the draining off of the water from the said canal, and they say that if it was such a work, it was agreed between the plaintiffs and the defendants the mayor, alderman, and burgesses of the borough of Bradford that the water should not be drawn off" from the said canal, and in con- sequence of such agreement, a notice requiring the water to be drawn off was not given to the plaintiffs. (!. The defendants B. K. and A. E. do not admit that the use of the canal was interfered with and the navigation thereon stopped in consequence of the water not being- drawn off from the said canal after due notice in that behalf, and they do not admit the allegations contained in the 8th; 2)aragraph of the statement of claim. NEGLIGENCE. 477 Action against Railway Company for Lijurij tlirough ilcfective Construction of LamiJ-glohe in Carriage, causing it to fall and Inflict the Injury complained of. 1. On the day of , 18—, the plaintitf became and Claim ■was received by the defendants to be by them safely and '^ff/^^y securely canned as a passenger on a j(juraey fi-om E. to A. and company on the return journey for reward to the defendants in that t^.o°^,|]''^ behalf. defeclve 2. While on the return journey, between the G-. and P. la^nf^/^*^ stations, the glass globe or shade which covered the lamp of the carriage in which the plaintiff was being carried as such passenger as aforesaid gave way, fell, and struck the plaintiff on his right shoulder. 3. The giving way and falling of the said globe was caused by the defective state of the said lamp or globe ; and the injuries which resulted to the plaintiff therefrom (as hereinafter mentioned) were caused l^y the negligence and default of the •defendants, their servants or agents, in having permitted the said lamp or globe to remain in a defective condition. 4. By reason of the matters aforesaid the plaintiff was hiu-t, jnjm-ed, and personally disabled, and suffered great pain, a portion of his shoulder bone was" fractured, and he has been prevented from using his right arm and shoulder, and w'ill be farther prevented from doing so. The plaintiff was prevented from going about and attending to and following his occupa- tion of an engineer, and he will be further prevented ft'om so doing to his loss of gain and profit in that behalf. The ])laintiff has been and will be put to expense for surgical and medical attendance and otherwise in respect of his said injuries. The plaintiff claims £, . Statement of Befmice. 1. The defendants do not admit that the globe or shade of Statement the lamp gave way or fell or struck the plaintiff. °^ '^''^''"'^• 2. If it be true that the said globe gave way and fell and struck and injured the plaintiff as alleged, the defendants deny that cither the giving way or foiling tliereof, and also that the alleged injuries, or any of them, were caused or liappened by or through tlie negligence or default of themselves, or their 478 NEGLIGENCE. Stateiucut of defeuce to claim foi- injuries through falling of a defective lamp. servants or agents, and that they or cither of them were guilty of any ncgh'gcncc or default whatcsxr in relation to the plaintift'.. 3. The defendants say that the giving way and falling of the said globe or shade were wholly unavoidable and unexpected,, and the result of mere accident, and were occasioned by latent defects in the said lamp or globe, and in the burner and fittings thereof, and also by the said burner getting suddenly and accidentally choked and out of order during the said journey, and by the solder by which the said globe was attached to the said lamp becoming melted by the flame fi'om the said burner and giving way, or by some or one of such causes. The defendants fiu'ther say that the said giving way and falling of the globe and the alleged injuries resulting therefrom hap- pened notwithstanding all reasonable care and precaution hav- ing been taken by the defendants to prevent danger and injury to the plaintifl", and to secure his safety while travelling on the said journey. 4. The defendants do not admit any of the allegations m the 4th paragraph of the statement of claim. Claim against railway company for per- sonal injury through negligence in over- .shooting Ijlatfomi. Actmi against a Railway Cmnjiany for Injury caused hy Train being hrovght vj) 'beyond Piatform (a). 1. The plaintiff is a mantle manufacturer carrying on business with his brother under the style of F. Brothers, at. — , Street, Cheapside, in the city of London. 2. The plaintiff, on the 15th of August, 1877, purchased from the defendants at theii- Aldersgate Street Station a ticket en- titling him to be carried from the said station to the Finsbury Park Station, and he was received by the defendants as a pas- senger to be carried on and in the 11.45 p.m. train from. Aldersgate Street station, to Finsbury Park station. 3. When the said train was brought up to a final standstill for the purpose of the passengers alighting at the Finsbury Park Station, the carriage in which the plaintiff had travelled was negligently brought up without the knowledge of the plaintiff beyond the end of the platform of the said station. 4. No warning was given to the plaintiff of the danger of (a) For note as to liability of railway companies, who are common, carriers, for negligence causing injury to passengers, see ante, p. 262-3. NEGLIGENCE. 479 attempting to alight from the carriage at its then 'position. Claim "When a reasonable time had elapsed after the train had been laiiway ■brought to a standstill, the plaintiff, using ordinary and rea- company sonable care in that behalf, attempted to alight from the said sonaHn- eaiTiage, but by reason of the said carriage being bevond the jury O^*/ ci'-^onat estate, see ante, p. 320—1.] Claim for Injuries caused hy Railwag Accident. 1. The plaintiff is a jeweller and silversmith carrying on business at , in the county of , and the defendants are the M., S. and L. Eailway Company. 2. The defendants are carriers of passengers between (among other places) F. and G. Docks. 3. On the 11th April, 1870, the plaintiff took and paid for a ticket fi.'om F. to Gr. Docks, and was received by the defen- dants as a passenger by a train leaving F. at or about G.o5 p.m., to be safely carried by the said train to G. Docks. 4. Shortly after the said train by which the plaintiff was travelling had left F., it overtook, and l^y the negligence of the defendants' servants came violently into collision with, another train of the defendants travelling on the same line of rails. 5. By the force of the collision the plaintiff ^^•as thrown from his seat and seriously injured. C. In consequence of the injuries so received, and the illness caused thereby, the plaintiff has been unable to attend to his business up to the present time, and has been put to great expense in providing other persons to manage his said busi- ness, and has lost large profits which but for his said injuries NEGLIGENCE. 481 preventing him from personally attending to his said business, he would have made. He has also incurred large expenses in medical attendance, nm-sing, and otherwise during his illness. The plaintiff claims £1000. Action against Railway Comimny for Injuries Inj Collision caused through Negligence. 1. The defendants are carriers of passengers upon a railway Claim from Victoria station, London, to Balham. raUwav 2. In January, 1870, the plaintiff was received by the defen- company dants as a second-class passenger holding a season ticket, to foi'^iui-ies. be by them safely and secm-ely carried for reward in an express train which started from Victoria station for Balham. 3. Owing to the negligence of the defendants in the manage- ment of their railway line and of the trains and engines running thereon, the express train in which the plaintiff was travelling fi-oni Victoria station to Balham aforesaid ran into or otherwise came into collision with an engine at a short distance from Victoria station. 4. The plaintiff was thrown from his seat by the said col- lision, and much injured about the head and face, and liad his left arm broken. The plaintiff claims : — Action for Injury caused hy Negligence of Defendants^ Servants. 1. On the evening of November Cth, 1875, the plaintiff was AnotLer lawfully proceeding by the usual path to enter the station of a„ainj^t a the defendants, at I., in the county of Derby, for the purpose railway of taking his ticket and proceeding by a train of the defendants f"" personal then about to start. injuries. 2. In order to reach the defendants' offices and platform it was necessaiy for him to cross a certain unijrotected siding of the defendants. 3. While the plaintiff was so crossing the said siding he was knocked down liy an engine in charge of the defendants' .servants. His arm and leg were cut off, and he was otherwise gi'ievously injured. 4. No warning or signal of the apin-uacli of the said engine was given. It earned no lights, and by reason of the darkness I I 482 NEGLIGENCE. Defence to claim for pereonal injuries. Claim by executor for injuries causiug death un- der Lord Camx^bell's ^ct. of the evening the phiintiff Avas unable to see his danger ; and the injuries aforesaid were caused by the neghgence of the defendants herein. The pU^intifl" claims £1000 damages. Skitement of Defence. 1 . The defendants do not admit that the plaintiff was pro- ceeding by the usual path to enter their station, or that it was necessary for him to cross the said siding in order to reach their offices and platform as alleged in the 1st and 2nd paragraphs of the statement of claim. 2. The defendants do not admit that no warning or signal of the approach of the said engine was given, or that the said engine carried no lights, or that by reason of the darkness the plaintiff' was unable to see his danger as alleged in the 4th paragraph. 3. The plaintiff might and ought to have proceeded by^ another way to the defendants' offices and platform. If he had gone by the said other way he would not have run any risk of being injured by the said engine. 4. The said engine was proceeding cautiously at a very slow pace not exceeding two miles an hour, and carried lights in front, and immediately before its arrival at the said path by which the plaintiff was crossing the said siding, the whistle was. sounded, and some of the servants shouted to the plaintiff to^ stand clear. 5. The plaintiff might by the exercise of ordinary and reason- able care and caution have avoided all injury from the said engine. Action imclei- Loi'd Caniphell's Act hy an Executor of Person hilled I)]) Negligence of the Defendants (a). 1. The plaintiffs are the executors of A. B., deceased, and the- defendants are the Great Western Railway Company, and were- at the time of the gi'ievances hereinafter complained of carriers- of passengers upon a railway from London to Richmond. 2. The said A. B. in his lifetime became and was received by the defendants as a passenger to be safely and secm'ely carried by them as such carriers from T^ondon to Richmond for reward, 3. The defendants did not safely and securely carry the said {a) As to when a person may sue under this statute, see the notes aiitr, p. 464. NEGLIGENCE. 483 A. B. from London to Richmond, but so negligently and mi- ^^^ai™ '^y tin GXGCutor skilfully conducted themselves in that behalf on the said journey under Loni as to cause the train in which the said A. B. was being conveyed Campbell's to run on to a wrong line of rails and come into collision with another train which was running on the said lines. 4. By reason of the said collision the carriage in which the said A. B. was travelling was broken, and he received such injuries that he died therefi'om shortly afterwards, ^■iz., on 14th of A^n'il, 1877, and within twelve calendar months before the commencement of this action. 5. At the time of the death of the said A. B. there were sm-- viving him C. B., his wife, and E. B. and G. B., his children, and the said C. B., E. B., and G. B. still sui'vive. C. The plaintiff, as the executor of the said A. B., and for the benefit of the aforesaid C. B., E. B., and Gr. B., according to the statute in such case made and provided, claims £500 damages. Action against Pilot for Negligence causing Collision and Damage to Plaintiff's Barge. 1. The plaintiff is a lighterman and owner of the sailing Claim barge " R.," and the defendant is- a licensed pilot, and was at the ^ffy "foj. time of the collision hereinafter mentioned in charge of the negligence steam-ship "H." XS 2. At or about 5.30 p.m. on the 21st day of December last with and the said l^arge " R." was lying at anchor in Upper Erith, on the pj"-'ntTff^r river Thames. There was no wind. The night was dark, the barge. tide was the last quarter ebb, and the riding light of the said barge was duly exhibited and burning briglitly. ?y. Under these circumstances the defendant so improperly and negligently navigated the " H." that she came into violent collision with the said barge, the stem of the said steamer striking the head of the said barge with such force that the said barge filled and sank shortly alter the said collision. 4. In consequence of the said negligence and want of skill on the part of the defendant in navigating the said steam-shi]), the plaintiff has been put to considerable expense in raising and repairing the said barge, and lias lost the use of the said barge lor a considerable time. The plaintiff claims £300 damages. I I 2 484 NEGLIGENCE. Statement of defence. Contribu- tory negli- gence. Limitation of liability under Mer- chant Shii^- jjing Act, 1864. Statement of Defence. 1. The defendant admits the allegations contained in the 1st and 2nd paragraphs of the statement of claim, save in so far as it is there alleged that the riding hght of the said ])arge was dnly exhibited and burning brightly. 2. The said barge " R.," at the time in the said statement mentioned, was at anchor in the fairway of the river Thames, but the said barge did not exhibit the usual riding light as jDrovidcd by the bye-laws and regulations then in force under and by virtue of the Acts of Parliament regulating the naviga- tion of the river Thames, nor was there any light exhibited or burning on board the said barge. 3. The defendant denies that he improi^erly or negligently navigated the " H." as in the 3rd paragraph of the statement of claim alleged, or in any other way, and says that the said collision in the said paragraph complained of, was occasioned or contributed to by the neglect or default of the plaintiff or his servants in not exhibiting as aforesaid a light on board the said barge, or in not having taken measures to warn the defen- dant and those on board the " H." of the position of the said barge by hailing or otherwise, whereby the defendant was unable to make out the said barge until it was too late to avoid a collision with the said barge. 4. The defendant denies the allegations contained in the 4th paragraph of the statement of claim. 5. At the time of the occurrences in the statement of claim mentioned, the defendant was in charge of and navigating the " H." as a duly licensed Trinity House pilot for the district in which the said collision occurred, and on his appointment as such Trinity House pilot had executed a bond for £100, conditioned as in the 372nd section of the Merchant Shipping Act provided, and the amount of pilotage payable to the defen- dant in respect of the voyage upon which he was then engaged, was the sum of £2 I2s. Gd. G. If the said collision occurred through any neglect, default or want of skill of the defendant (which the defendant denies), such neglect, default or want of skill, was neglect, default or want of skill within the meaning of the 373rd section of the Merchant Shipping Act, 18C4 ; and the defendant is not liable NEGLIGENCE. 485 in respect of such neglect, default or want of skill, beyond the said sura of £100, and the said sum of £2 125. Gd. Action against Owner of Shij) for NcijUgence causing Collision. 1 . The plaintiffs are the owners of the steam-ship "Velocity," Claim by the master and crew of the said steam-ship, and the o^vaiers of p^^b^tig-g the cargo laden therein at the time of the collision herein- against after mentioned. The defendants are the owners of the steam- gt^gj)-^, ship " Halby." for negli- 2. The "Velocity," a screw steam-ship of 250 gross tons f^rcX""'" register, and manned by a crew of hands all told, left lision. liondon on the morning of the 20th December, 1870, bound for Calais with a cargo. 3. About G.20 a.m. on the same day, the wind at the time being 8.E. a moderate breeze, the weather dark and rainy, and the tide-ebb of the force of about three knots an hour, the " Velocity," in the prosecution of her said voyage, was in the Tower Hope Reach, proceeding under steam at the rate of about six knots per hour, and keeping her course down the river rather to the northward of mid-channel. Her proper regula- tion lights were duly exhibited and burning brightly, and a good look-out was being kept on board of her. 4. Under these circumstances a dim Avhitc light, which proved to be the riding light of the steam-ship " Halby," was seen by those on board the " Velocity " at the distance of about three shii)s' lengths, nearly ahead, but a little on the jiort bow withal. The helm of the "Velocity" was immediately put hard-a-port, but it was impossible to clear the " Halby," and the anchor chain of the " Halby " caught the port side of the " Velocity " about the waist, inflicting such serious damage that the " Velocity " sank almost immediately. 5. The " Halby " was in fault within the true intent and meaning of 3G & 37 Vict. c. 85, s. 1 7, on account of the im- proper condition of her riding light. 6. The aforesaid c(jllision, and the damage consequent thereon, were solely occasioned by the neglect and improper conduct of those on board the " Halby," in neglecting to exhibit a proper i-iding light in accordance with the regulations for preventing collisions at sea, and in neglecting to indicate to those on board the " Velocity" tlie positicm of the " Halby." 486 NEGLIGENCE. The plaintiffs the G. Steam Xav. Co. claim the value of the > said steam-ship " Velocity." The plaintiffs the master and crew of the steam-ship " Velocity," claim the value of their effects. The plaintiffs the owners of the cargo laden on board the " Velocity " claim the value thereof. Statement of Defence. Statement 1. About 6.15 a.m. of the 20th December, 1870, the " Hal- of defence, j^^^" ^yi^^^h is a brig-rigged iron screw-steamer of 1)94 tons register, and 120 horse-power nominal, manned by a crew of forty-four hands, and in charge of a duly licensed pilot, was lying at anchor in the river Thames, abreast of the Mucking Light, and in about mid-channel, by her port anchor and about forty-five fathoms of chain. On the previous afternoon, whilst prosecuting her voyage from Liverpool to London, she had come to anchor in consequence of the thickness of the weather. 2. The wind at about 6.15 a.m. was blowing a moderate breeze from the S.W., the weather was showery, and the sky overcast, but the banks of the river on both sides were visible. The tide was ebb, of the force of about tlu-ee knots an hour, and the "Halby" had a proper regulation anchor light at- tached to the foretop-gallant-stay, and duly exhibited, and burning brightly, and in addition had an ordinary globe light hoisted on the flagstaff over the taffrail, and was lying at anchor with her helm a little to port, and a proper watch was being kept on board of her. 3. Under these circumstances the masthead and green lights of the "Velocity " were seen a little on the "Halby's" starboard bow, and apparently about half a mile off. The " Velocity " approached at great speed, and exhibited her red light, and although she was hailed from the " Halby," she continued to approach rapidly, shut in her green light, and attempted to cross the bow of the " Halby," but she caught the chain of the " Halby," and came into collision with her, whereby she sustained the damage (if any) mentioned in the 4th paragraph of the statement of claim. 4. Those on board of the "Velocity" neglected to keep a proper look-out. NUISANCE. 487 5. Those on board the " Velocity " neglected to take proper Statement measui-es for keeping the " Velocity " clear of the " Halby." G. The " Velocity " was being navigated at an improper speed. 7. The said^collision and damage consequent thereon were occasioned by the neglect and default of those on board the •" Velocity," and were not in any way occasioned by any neglect or default on the part of those on board the " Halby." 8. Save as herein admitted and apjiears, the defendants deny tlie truth of the allegations in the statement of claim. Nuisance («)• Injury to a Wharf caused hij improperly stacking Blades of Granite against one of its Sides. 1. The plaintiff J. M. is the owner and the plaintiffs the Claim f.n- L. P. Co. are the tenants of the C. AVharf, situate in P., in the ".^^^|| j,^ county of Middlesex. adjoining occupier. (a) Where the nuisance is a public one and indictable, an action will mot lie at the suit of a private person, unless he sustains special damage beyond that sustained by the other persons affected by it. {li'ichct v. JIetro23oUtan, Itall. Co.. L. R. 2 H. L. 175 ; WinterhoUom v. Lord Di;rby, L. R. 2 Ex. 31C ; Bnijamm v. Storr, L. R. 9 C. P. 400 ; McCarthy v. Mctrojwlitan Board of Worlts, L. R. 8 C. P. 191, Ex. Ch., and L. R. 7 H. L. 243.) Nor is a private person justified in abating a nuisance. iArnold v. llolhrool; L. R. 8 Q. B. 90.) Where the defendant built a house with an area which was left un- fenced near a public footpath, and a person had fallen into the area while passing along the footway with ordiuaiy care in the night, the defendant was held liable, though the plaintiff had accidentally deviated from the public footpath, and so inadvertently become a trespasser. {Jiarnrs v. Ward, 19 L. J. C. P. 19.5 ; Iladlcij Y.'Taijlor, L.R.I C. P. 5:?.) it would have been otherwise had the area been distant from the path. <76.) And where a foot-passenger missed his way along a public path and strayed into a reservoir made by the defendants near to but not sub- stantially adjoining the patli, they were held not to be liable, though the jury found the reservoir was dangerous, and that the foot-passenger had used ordinary care, {lla rdcastlc v. tioath Yirrkshire Itail. Co., 28 L. J. Ex. 1.39.) It is enough to constitute a thing a nuisance that it renders the enjoy- ment of life and property uncomfortable. {It. v. White, 1 Burr. 3:i7, per Lord Mansfield.) To erect anything offensive so near the house of another as to make it uninhabitable, such as a forge, is a nuisance. Com. Dig. Action on the Case for Nuisance. (A.) But .^cmble the keeping of a kennel so near the plaintiff's house that the noise of the dogs prevented the family from sleeping at night and disturljcd them by day, is not a nuisance — at least on a finding of a jury to this effect the Court refused to disturb the verdict ; but the Court would in such a case liave upheld the verdict had they found it a nuisance. (Sec Crump v. Lambert, L. R. 'i Where nuisance indictable plaintiff must liave sustained exceptional damage. Injury through defective fencing by or near public path or highway. Rule as to what con- stitutes a nuisance. Decisions. 488 NUISANCE. Claim foi' damage to wharf by iicljoining oociqaer. 2. The defendants ave the owners and occupiers of a wharf and land which adjoins the said C. Wharf on the east side thereof. Distinction between nuisances to property and those infringing on personal rights. No defence tliat defen- dant only made reasonable use of his property. Cases of nuisance and negli- gence fre- quently mixed up. Distinction between cases where person on premises for busi- ness or by permission at time of injury. Eq. 409 ; Ball v. Mdy, L. R. 8 Ch. 467.) It is a nuisance to display fire- works or other exhibition whereby disorderly crowds are collected near the plaintiif's bouse. {Walker v. Brewster, L. E. 5 Eq. 25 ; Inchiald v. llohin.son, L. R. 4 Ch. 388.) here is a distinction to be drawn between nuisances producing injury to property and those merely causing personal discomfort. The latter is not always actionable, as this would stop many useful trades ; but if the nuisance causes a sensible injury to adjacent property it becomes action- able, as where vapours from a furnace injure the plaintiff's shrubs. {St. Helen's Smelting Co.\. Tipjjiufi, 35 L. J. Q. B. 66 ; and see Salvin v. Korth Brancepafh Coal Co., L. R.'q Ch. 705.) With regard to personal discomfort it has been held that if the alleged nuisance, such as noise or smoke, interfere with the comfort of human existence in the plaintiff's premises, it is actionable. {Criimj} v. Lamhcrt, supra.) It has, however, been well settled that merely diminishing the pleasure of the plaintiff iu the enjoyment of his property is not actionable. If the act of the defendant causes discomfort amounting to a nuisance, it is no defence that in creating it the defendant only made a reasonable use of his land and premises. Thus where the defendant erected a brick clfimp on his land for the temporary purpose of burning bricks for building thereon, which clamp was 180 yards away from the plain- tiff's house, but situated on the most distant part of the defendant's land, it was held that the erection constituted an actionable nuisance. {Bamford v. Tiirnlri/, 31 L, J. Q. B. 286, Ex. Ch, overruling IMc v. Barlon; 27 L, J. C. P. 207. And see Carey v. LldbeUer, 32 L. J. C. P. 104.) The question of nuisance frequently runs into that of negligence on the part of the defendant. Thus where a local board were empowered to erect iu a navigable river a landing stage which was confined by anchors, the board was held liable for an injury to a ship by one of the anchors on the ground, that the anchor was not marked by a buoy. {Jolliffe v. Walla- ■seij Loeal Board, L. R. 9 C. P. 62.) So where a gasfitter sent his servant the plaintiff to fix some gas apparatus in the defendant's sugar refinery at his request, and the plaintiff fell through an unfenced shaft in the refinery, the defendant was held liable for the injury caused by the fall. {I/idrrmavr v. Dames, L. E. 2 C. P. 311, Ex. Ch. ; and see Wuodley v. 3Ietro2)olitan Bail. Co., L. R. 2 Ex. 384.) In the case of Indermaur v. Dames, the Court of Exchequer Chamber distinguished between cases where a jjerson was on premises by mere permission (as to which sec next paragraph) and where a person is on premises for lawful busi- ness in which plaintiff and defendant are interested, in which case the occupier of the premises is bound to use reasonable care to prevent damage from unusual danger which he knows or ought to know, and. it is a question for the jury whether he has taken reasonable precau- tion, as by notice, lighting, guarding, &c., and also whether there was contributory negligence on the part of the plaintiff. (See ^' JVegliye7iee.") This doctrine seems to trench on the decision in Seymour v. Maddo.v, 20 L. J. Q. B. 327, where it was held that the owner of a theatre was not liable to an actor for injuiics sustained by him by falling through an aperture on the stage which was not sufficiently lighted. The doctrine of Indermaur v. Dames, supra, was acted on in White v. France, 46 L. J. C. L. 823. A person being on or using premises by mere license or permission, is in a different position from one using them, as in the case of Indermaur NUISANCE. 489 3. For several months previous to the commencement of Claim for this action and dowTi to the present time the defendants have J^^^ ° V. Dames. siij>ra, in the course of business with the occupier. The result of the authorities on the subject is that in case of mere licensees the occu- pier is not liable for damage caused by something defective or dangerous on the premises, unless it be in the nature of a tmjj. {Bolch v. Smith, 31 L. J. Ex. 201 ; Ga tit ret v. Egertoii, L. K. 2 C. P. 371 ; Castle v. Parlwr. IS L. T. N. S. 304 (18(58) ; Smith v. London and St. Catherine Boeki' Co., L. K. 3 C. P. 32U ; Corbi/ v. Hill, L. J. 27 C. P. 318.) It is on the principle involved in these cases that mere cisitor-i cannot main- tain an action through injuries sustained by reason of defects about the house. (See Southcote v. Stanle)/, 2.5 L. J. Ex. 339, and Collis v. Selden, L. R. 3 C. P. 495.) This exemption fi'om liability where the injury arises from the negligence of a servant, has been put on the ground that the guest is in the same position as a servant with reference to the acts of the host's servants. As a general rule the occupier of fixed property is liable for any nuisance occurring on it {JJush v. Stelnman-, 1 B. &; P. 404) ; but this rule is now subject to so many exceptions, that it would be very dan- gerous to act on it as a general principle. It has recently been held that where the defendant has brought another person on land in his occupa- tion, and allowed him to commit a nuisance thereon, he is liable for such nuisance. {^Ml^te v. Jameson, L. Pi. 18 Eq. 303.) An occupier of land is not liable for a nuisance committed thereon by a stranger without his consent, if he has not; subsequently approved of it. (See Saxbi/ v. JIan- vhenter S,- Shetfield Bail. Co., L. R. 4 C. P. 198.) The most important exception to the above inilc is where nuisances are caused on land in a person's occupation by the m;ilfeasance, misfeasance, or non-feasance of contractors' servants in the course of work they have undertaken. If a contractor employed to do a lawful act causes a nuisance in the course of his work, he and not the person employing him is liable for it. The same rule applies "to cases of nuisance as to acts of negligence which may not come precisely within that category. The rule in both is that the wrong-doer himself or " the first person in the ascending line," who is the employer, must be looked to, but there the liability terminates, and the employer of such employer caimot be made liable. (^Murray v. Currie, L. It. (J C. P. 24. See per Willes. J., p. 27.) Where a contractor employed by navigation commissioners flooded the plaintiff's land by improperly and without authority introducing water into a drain insufficiently made by himself, the contractor and not the commissioners was held liable. {Allen v. Ilai/ward, 7 Q. B. 960, 975.) And if a person employs a contractor to build on his land, and the work- men of the latter excavate the ground so negligently as to cause injury to a house on the adjoining land, the contractor and not the person who employs him is liable. {(Jayford v.JVicholU, 23 L. J. Ex. 20.5.) The im- mediate employer of the person whose act causes the injm-y, whether he be the contractor or sub-contractor, or even sub-sub-contractor, is the person liable. {Knight v. J'h.r, 5 Exch. 721 ; and see Murray v. Carrie, xiipra.') The nature of the work raises a presumption that the person sought to be made responsible was an independent contractor, and not a servant. {Welfare v. London, JSri/jhton, c*)' South Coast Hail. Co., L. 11. 4 Q. B. <;93.) The principle laid down in these cases would not apply in the event of the employer of the contractor personally interfering or in any way making himself a party to the act or omission causing the injury. {Burgess v. Grey. 1 C. B. 578.) Or where the thing ordered to be done or any part of it, as opposed to acts of negligence or nuisance in the doing of it, is itself a nuisance. {Mils v. Sheffield Gas Consumers Co., 23 L. J. Q. B. 42.) Nor where the employer is charged with a duty by Liability of occupier of dan- gerous pre- mises to mere licensees. Rule that occupier of land liable for nuisance thereon much modified. When nuisance created by servants of contractoi-. Immediate employer of person causing injuiy liable. Exceptions to rule that contractor liable. 490 NUISANCE. Claim for damage to wharf by im- Ijroper use of party wall by adjoining occupier. wrongfully aiul iin])i-operly stacked and kept stacked blocks of li'ranite and othev heavy materials a<;ainst and upon the eastern wall of the said C. Wharf, and the said buildings of the plaintiffs thereon, whereby the said wall and buildings have been crushed, cracked, and otherwise injured, and have been rendered daii- gerous and unfit for use. 4. By reason of the said trespasses and injuries so committed and caused by the defendants as aforesaid, the plaintiffs the said L. P. Co. have been put to great trouble and incon- venience, and have been prevented from using the said wharf and buildings in the way of their trade, and their goods in the said premises have been damaged and spoilt, and they have been obliged to find other premises for theii- business. •Contractor not liable, when. Owner of land not liable for nuisance on it after let- ting. Unless he is bound to repair or retain con- trol over it. Or unless nuisance the result of mode of occupa- tion con- templated. Proprietor of collected water not liable for escape of it by unusual rainfall. statute, as he cannot shift his responsibility by employing a contractor. (See Hole v. Sittitujbourne, 30 L. J. Ex. 81.) This doctrine, however, seems hardly reconcilable with several cases. (See Knight v. Foj-, and Allen V. Ilayward, xiipra.) A contractor lawfully employed to constract a sewer under a road is not liable for injury caused to a person through a hole having formed in the road by the natural subsidence of the ground, assuming that the con- tractor has properly completed the work. {Ilyama v. Webster, L. R. 4 Q. B. 1H8, Ex. Ch.) In such a case the employer of such contractor would not nemble be liable. The owner of land is as a general rule not liable for a nuisance erected or caused on it after letting it. If, however, he lets with a nuisance on it he continues liable for it (Todd v. Fl'u/Iit, 30 L. J. C. P. 21), but not if the nuisance is caused by a particular mode of using that which was on the land at the time of letting, {mdi v. Bastcrficld, 4 C. P. 783.) The landlord is liable for a nuisance arising from not doing repairs which as between himself and his tenant he was bound to do, or if he retains a control over the re})airs. (Payne v. Bogers, 2 H. Bl, 349.) Where A. let to B. a field for the purpose of its being worked as a lime quarry. The ordinary way of getting the limestone was by blasting, and A. authorised the (luarrying of the stone and the erection of the lime-kilns in the field. A nuisance was caused to the adjoining occupier by the blasting and by the smoke from the kilns, and he brought an action against A. and B. On demurrer by A., it was held that he was liable, although the nuisance was actually created by the act of his tenant, because the terms of the demise were an authority from him to B. to create the nuisance, which was therefore the necessary consequence of the mode of occupation con- templated in the demise. {Harris v. Jtones, 4G L. J. C. L. tA'> ; distin- guishing Bieli V. BasterfeJd, siiprd.) Where the nuisance arises from non-repair, the landlord " not being bound to repair, see Nehon v. The Jj'irerpoul Brewery Co., 46 L. J. C. L. ()75. The proprietor of collected water is not liable without negligence for its escape caused by rh- major ; and a fall of rain of a kind which could not have reasonably been anticipated amounts to r/.v major. {N'lehoh v. .Vardand, 44 L. J. Ex. 134 ; 4(1 L. ,J. (App.) 134 (C. L.).) It was held also in that case that the liability of the proprietor of stored water does not apply where a fresh agency intervenes between the water and the damage. {Fletcher y. By lands, 37 L. J. Ex. 161, distinguished.) NUISANCE. 491 5. The plaintiff J. JM. lias lost the said company as Claim for tenants of the premises, and will be unable to let the same, and [^^^f^ he will be put to great expense in and about repairing the said premises, and his reversionary interest therein has been much injured. The plaintiffs, the L. P. Co. claim £i^00 damages. The plaintiff" J. M. claims £500 damages, and also an in- junction against the continuance or repetition of the acts complained of. Injury to DwelUiig-house hy sapjjmy its Foundations. 1. Before and at the time of the committing of the grievances Claim for hereinafter alleged, the plaintiff was possessed of a leasehold Jj"SJ°g interest in the dweUing-house known as No. — , , in the house by county of M., and had underlet the same to weekly tenants. comhicLg 2. The defendants in or about the months of September and building ° October, 1876, were employed in digging the foundations of an operation.-. intended building in a certain piece of land next adjoining to the land whereon the said dwelling-house is built, and so negli- gently, carelessly, unskilfully, and improperly conducted the said building operations by failing sufficiently to shore up the fomidations and walls of the said dwelling-house, and dug the said foundations in the land next adjoining the land on which the said dwelling-house is built so carelessly, unskilfully, and improperly that by reason thereof the foundations and walls of the said dwelling-house sank and gave way and became and were greatly weakened, loosened, damaged, and unsafe. 3. In consequence of the premises the said dwelling-house was greatly injured, and the tenants of the plaintiff' left the said premises, and the plaintiff for a long period of time was unable to let the house to lodgers as theretofore accustomed, and lost profits in consequence thereof. 4. In consequence of the dangerous, damaged, and unsaic condition of the plaintiff's said dwelling-house, so injured by the defendants as in the hist paragraph mentioned, the plaintiff has been served by the ]\I. Board of Works with a statutoiy notice to repair tlie said ])remises, and tlie jdaiiitiff has incurred liabilities by reason thereof amounting to £:^00. The plaintiff claims £300. 402 NUISANCE. Claim for nuisauce on a liigli- way caus- ing S2)ecial damage to the ijlain- tiff. JVidsanre on a Hiijltivaij causiny Damage to Plaintiff's Cah. 1. The plaintifi' is a cab proprietor. The defendants are paviors and contractors. 2. In October, 1877, the defendants were employed by the vestry of the parish of to do certain repairs to the roads of the said parish, and for the pm-pose of carrying out such repairs the defendants deposited on the roadway of V. Road in the said parish a quantity of sand and ballast so as to cause an obstruction to the thoroughfare. 3. The defendants in breach of their duty in that behalf negligently and carelessly allowed the said sand and ballast to remain on the said roadway during the night of the 27th of October aforesaid without fencing and lighting the same. 4. During the night aforesaid a hansom cab belonging to the plaintiff was being driven along the said roadway, as it lawfully might be, and in consequence of the inability of the driver to see the said obstruction caused by the negligence of the defen- dants as aforesaid, was accidentally di'iven against the said sand and ballast, and was overturned and greatly damaged. 5. The plain tiflP incui'red expense amounting to £10 in repairing the damage done to the cab by being overturned as aforesaid, and was prevented for a long time from letting out the said cab, and she lost the sum of £16 which she would have gained l;)y so letting out the said cab as aforesaid. The plaintiff claims £20 damages. Statmient of Defence. Defence. 1. The defendants deny that they were guilty of any negli- gence or In-each of duty, and say that they properly and suffi- ciently fenced and lighted the said sand and ballast, and that the same was so fenced at the time of the accident. 2. The defendants say that the driver of the said cab might and could by the exercise of reasonable care and diligence have seen the said heap of sand and ballast and the fence and light thereof, and have avoided driving against the same, and that the accident happened solely by reason of the careless and reck- less driving of the driver of the said cab. 3. The defendants do not admit the statements of the 5th paragraph of the statement of claim. NiriSANCE. 493 Obstructing a Foofjmfh by means of ivhich Damage was caused to the Plaintiff. 1. The defendant placed and kept, or caused to be placed and Claim foi kept, upon and across a common and public footway being part °'^i'^*"ce and parcel of a public highway, a rope tied to a ladder erected path cans and standing in and upon the said public highway hi fi-ont of "js the . . -^ ^ o . plamtitf and agamst a certam house there, to the area railings of w'hich special the said rope so extending over and across the said footway '^a.mage. was fastened. 2. The defendant wrongfully permitted the said rope to be and continue upon and across the said footway as aforesaid without using proper or any means or taking proper or any care to warn and protect persons lawfully passing along the said footway from coming upon and against the said roj^e. 3. By means of the premises, the plaintiff la\\-fully passing along the said footway and employing (jrdinary caution in the use thereof came upon and against the said rope, and was thereby thrown do^Ti and fell to and upon the grouud, whereby one of her arms was broken, and she was otherwise greatly bruised and injm-ed, and has been ol)liged to incur and has incurred expenses for surgical and medical attendance and otherwise. The plaintiff claims : — Statement of Defence. 1. The defendant says that the rope and ladder in the 1st Defence, paragraph of the statement of claim mentioned were at the time of the alleged accident necessarily placed on the said footpath, and were being used by the defendant for the purpose only of painting and repairing the said house, and extended only over a very small portion of the said footway, and the defendant exer- cised ordinaiy care and diligence to avoid mischief therefrom. 2. The defendant denies the several allegations in the 2nd and 3rd paragi'aphs of the statement of claim, and further denies that the ])]aintifF was em})loying ordinary caution in the use of the said footway, or that it was by reason of any A\Tong- ftd act of the defendant as alleged that the accident occm-rcd, or the plaintiff sustained the alleged injiny or damage. 3. In the alternative tlie defendant says that tlie plaiiitiH" at the time of the happening of the accident was so intoxicated MH NUISANCE. Defence to claim for nuisance (in a foot- path. Claim for nuisance caused by defective drains. Claim for nuisance caused l>y tilth, &c.', Ijercolating from de- fendant's land into plaintitF's hou,se. as to be incapable of taking care of herself, and the accident occurred, and the damage, if any, Avere caused by the plaintiff's own negligence and Avant of ordinary care in and about using the said footway. Nuisance caused to a Neighbour ly defective Drains. 1. In the month of August, 1875, the plaintiff was the occu- pier of a public-house known as the White Horse, No. — , Street, and the defendant at the same time was the occu- pier of No. — , Street, which adjoins the plaintiff's said public-house. 2. In the said month of August, 1875, a quantity of water and filth percolated through the dividing wall from the defen- dant's cellar into the plaintiff's cellar, and injured and destroyed a part of the stock-in-trade of the plaintiff, and otherwise damnified him. 3. The said injury Avas caused by the neghgence of the defendant in not keeping his said drains in a proper and suffi- cient state of repair, thus rendering them unable to cany the water and filth therein into the common sewer, whereby the defendant's cellar was flooded, and thence the said water and filth percolated into the plaintitt"s cellar, as alleged. The plaintiff claims : — Nuisance caused hy Defendants placing Soil, 6cc., against a Wall adjoining Plaintiff's House. Demurrer to the Claim. 1. At the time of and before the commencement of the damage hereinafter mentioned, the plaintiff was and he still is possessed of a house known as No. 10, Street, S. 2. The defendants then were and still are possessed of a certain close of land adjoining the said house of the plaintiff. 3. The defendants placed and deposited in and upon the said close of the defendants, and upon and against a wall of the defendants which adjoins and abuts against the house of the plaintiff, large quantities of soil, clay, limestone, and other refuse, close to and adjoining the said house of the plaintiff, and thereby raised the surface of the defendants' land above the level of the land upon which the plaintiff's house w^as built. 4. The rain which fell upon the said soil, clay, limestone, and other refuse so placed as aforesaid, oozed and percolated NUISANCE. 495 throut^h the said wall of the defendants into the said house Claim for o v., 1 111 i. nuisance of the plaintift", and the plaiutiif s house thereby became wet, caused by damp, unwholesome and unhealthy, and less commodious for ^^^^^^j^^^-^' habitation. from de- 5 Bv reason of the said acts of the defendants the walls of fendant's „,,..,„, , , land lulo the said house of the plaintiff became and were very much plaintiff's iujiu-ed, and the paper and plaster upon the said walls have liouse. been destroyed. 6. In the alternative the plaintiff alleges that the defendant go negligently and improperly placed and deposited the said soil, clay, limestone, and refuse upon the defendants' said land that the rain-water falling thereon oozed and percolated through and into the plaintiff's house, whereby the plaintiff's house was damaged as before mentioned. 7. In the alternative the plaintiff" says that the defendants were guilty of negligence in this, that the said wall of the defendants against which the defendants so placed the said soil, clay, limestone, and refuse was not sufficiently and properly constructed and built so as to prevent the water falling upon the said soil, clay, lunestone, and refuse from oozing and percolating tlirough tlie said wall and into the plaintiff's house, and that the defendants were guilty of negligence in placing the said soil, clay, limestone, and refuse against the said wall, being so insufficient to prevent the water falling upon the said soil, clay, limestone, and refuse from oozing and percolating through and into the plaintiff's house, whereby the plaintitt^'s house was damaged, as before mentioned. The plaintiff claims : — Demurrer. The defendants demur to the plaintiff"s statement of claim, Dcnuuicr. and says that the same is bad in law, on the ground that the acts, matters, and things alleged to have been done by the defendants do not give rise to any right of action on the part of the plaintiff («)• (a) A demurer to this effect to a statement of claim as above set out was oven-ulod in llardman v. North Hunter ii Hail. Co. (38 L. T. N. iS. 496 NUISANCE. Nnisame caused hij flooding Plaintiff's Land. Claim for 1. At the time of the committiug of the grievances herein- of the"' '"^' ^^^^^ mentioned, the plaintiff was possessed of two closes of land plaintiffV situate in that portion of D. St. N., in the comity of L., land. known as , and bounded by ; and was also possessed of a ditch and of two gateways or passages forming the entrance from the road on the bank of the river G. over the said ditch into the said respective closes, and of certain other lands near to the said ditch, all situate in the parish of D. St. N., in the county of L. 2. The water passing along the said ditch lawfully passed and was carried by means of culverts or tunnels under the said gateways or passages forming such entrance as aforesaid. 3. At divers times in August, 187G, the defendants wi'ong- fully broke and entered the said closes and the said ditch and l)assages and gateways respectively, and broke down and dug up and destroyed the said passages and gateways, and the said culverts and tunnels under the same respectively, and dug holes in the said closes and passages and gateways respectively, and removed large quantities of earth and soil therefrom, and damaged and destroyed the same. 4. By means of the premises, large quantities of water were WTongfully caused and permitted to flow and did flow from ofl' certain lands of the defendant and other lands through and along the said ditch into and upon the said closes and the said other lands of the plaintiff, and remained thereon for a long time, and damaged the crops and seeds of the plaintiff then growing thereon, and the plaintiff was deprived of means of access for himself and his cattle to and from the said closes and the said road, and lost the use of the said closes and other lands, and was otherwise damnified. The plaintiff claims £100. Nuisance ohstructing the Access fo a Wag granted to the Plaintiff's Predecessor. Claim for 1, Before the 27th October, 1840, one A. A. was the tenant t^n tfthe' ^^^' ^^^® ^ possession under certain deeds, wills, and settle- plaintiflf's mcuts of certain lands called " The R. Estate," at G., in the way ° county of D., having a frontage to the river T., and on the NUISANCE. 497 ■estate was a quay, which was convenient for the o'wners of the claim for a ■estate to ship sroods on to ships in the T. nuisance ^ ® ^ obstructing 2. At that time the N. and C. Railway Company, who are the plaiu- now incorporated with and form a part of the N. E. Railway ^^ J "° Company, were authorised under their Acts of Parliament to take the part of the said " R. Estate " which was afterwards conveyed to them. 3. By the said Acts of Parliament the said A. A., being tenant for life in possession, had authority to make and execute the conveyance to the said raUway company hereinafter men- tioned. 4. By indenture made the 27th October, 1840, between the said A. A. of the one part and the said railway company of the other part, after reciting . . . [Here follow various recitals, in- cluding one that there was an ancient public foot and horse-way along the quay on the " R. Estate," and that it had been agreed that the company should make and maintain a new public foot and horse-Avay in lieu thereof, which it was recited they had done. The indenture then proceeded that the said A. A. granted and released to the said company the said quay, to have and hold the same subject to the several easements there- inafter stated.] The easements were : — Firstly, a footway, horse-way, and carriage-way, iifteen feet wide, upon, along, and across the said quay, to or into and trom and out of any other way and any road or passage, or in any part of the said " R. Estate," or any other lands or hereditaments of the said A. A., or of the person or persons so entitled as aforesaid, or their respective assigns, and that for any purpose . . . Secondly, a fjotway, horse-way, and can-iage-way on, along, and across a part of the quay and piece or parcel of ground expressed to be thereby granted and released .... so as in the using of the said way the free passage upon or along the railway of the .said company be not unnecessarily impeded or interrupted. Thirdly, the exclusive liberty of landing and embarking and receiving and dchvcringby means of the way lastly hereinbefore mentioned manure, dung, or goods of any amount or kind, from or into any l)oat, lighter, keel, or other vessel in the river T., and of depositing such manure, dung, or other goods upon so much of the said quay as extends . . . [here follow the of way. 49g NUISANCE. Claim for a Hiuits] . . . and of iiiuoi'iii.t;- any boat, lighter, keel, or othcr iniisancc vessel to the said ciuay for the pm-poses aforesaid. obstructing the plain- 5. By the said indenture the said company, tor themselves *'/.H?^'** and their successors, covenanted with the said A. A. and the owner or owners for the time being of the " R. Estate," that the said company would from time to time and for ever there- after sufficiently repair and maintain the way firstly thereby reserved. And by the said deed it was provided and declared that nothing hereinbefore contained should prejudice, diminish, alter, or affect all or any of the rights, liberties, privileges, and powers given or reserved by the said Acts, or either of them, ta^ the said A. A. or the person or persons so for the time being entitled as aforesaid as the owner or owners of land adjoining or near the said railway. G. The said deed was duly executed by the said company and^ by the said A. A. 7. The plaintiff H. W. A. is the present owner of the- " E, Estate," or of so much thereof as concerns the present' action, and he derives his title under the deeds, wills, and settle- ments in the said 1st paragraph mentioned. 8. The plaintiff is entitled to the rights and benefits under' the said indentures, and is the proper person to sue for any injury thereto, or for any breaches of covenant on the said deed committed by the said railway company or their successors. [). Within the last few years the plaintiff has licensed certain persons to sink for coal and to get coal imder the " R. Estate," and has arranged with them that the coal may be carried to and shipped from the said quay. 10. The said licensees have sunk shafts on the said estate, and have proceeded to get coal under the same ; and the said licensees and the plaintiff are desirous of conveying the said coal from the estate over the defendants' railway to the said quay for the purpose of shipment. 11. The N. E. Railway Company have raised the level of their railway Ijetween the quay and the " R. Estate," and have laid down rails along the quay reserved by the said deed, and have built a wall between their railway and the rest of the " R. Estate," and have continued these obstructions up to the jiresent time. NUISANCE. 499 12. The consequence of these acts on the part of the company claim for a is to prevent the owners and occupiers of the " E. Estate " from nuisance (jbtaining access to the said quay, and the plaintiff and his said ti^ plain- ° licensees have been and are thereby prevented ft'om making use tiff's right of W2LV thereof according to the provisions of the said deed. 10. The plaintiff" claims : — (1.) Damages for interfering with the plaintiflP's and his tenants' access to the said quay, and for the breaches of the covenants in the said deed. (2.) A declaration of the plaintiff"s and defendants' respec- tive rights and liabilities under the said deed. (3.) An injunction ordering the defendants to desist from obstructing the plaintiff' and his tenants in their access to the quay from the " R. Estate," and fi-om preventing him and them ft'om making, use of the said quay for the jjurposes mentioned in the said deed, and to remove all obstructions created by them and which interfere with the exercise of the privileges granted by the said deed, and to give the plaintiff' and his tenants the facilities for the exercise of such rights which they are bound to do under the provisions of the said deed. (4.) Such further ur other relief, &c. Statement of Defence. [After various i.araejrapliB admittinfj and dcny'uuj allegations in the claim. ^ 4. In reference to the statements in paragraphs 7 and 8 of Denial of the ])laintiff's statement of claim, the defendants say that the r.'=y"t'ff'« . .,,. . , title to plamtitt is not the present owner of the said " R. Estate," nor sue. of so much thereof as concerns the present action, nor is the ])laintiff" entitled to the rights and benefits under the said in- denture, or the proper person to sue for any injury to the said last-mentioned portion of the said estate, or for any breaches of covenant in the said deed in respect thereof. And the defend- ants farther say that long l)efore this action the i)laintitt" sold and parted with the title and possession of and to so much of the said estate as would, if at all, entitle him to the I'ights claimed by him in this action. 500 NUISANCE. Defence to claim for obstruction of jilain- titfs right of way. Acquies- cence liy the plain- tiff. Further ac quiescence by ijlain- tiff. 7. The owners of the " R. Estate " and their tenants have never made use of the said quay from a long time i)rior to the date of the said indenture of the 27th October, 1840, to the ]-)resent time ; and they for the first time claimed to be entitled to do so on or about the 10th of July, 1874. 8. The N. and C. Railway Company (and not the defendants) built and erected the said wall in the 11th paragraph of the plaintiff's statement of claim mentioned, between the railway and the rest of the " R. Estate," as a fence wall to the railway, and so as permanently and effectually to separate and divide off the railway and the carriage-way first described and mentioned in the 4th paragraph of the plaintiff's statement of claim, and without leaving any aperture for the passage or use of the said carriage-way secondly described in the said paragraph, and wholly and permanently and effectually to block up the same. The said N. and 0. Railway Company and the defendants respectively have since its erection maintained the said wall, and from time to time went to considerable expense in repairing and maintain- ing the same ; and the owners of the said " R. Estate " had notice that the said N. and C. Railway Company and the de- fendants were incurring the said expense, and they from the time of the erection of the said wall until the said 10th of July, 1874, acquiesced therein ; and the said N. and C. Railway Company and the defendants went to the said expense in erecting and maintaining the said walls with the knowledge, acquiescence, and consent of the then owners of the " R. Estate," and on the faith that they acquiesced in and consented thereto. The said N. and C. Railway Company and the defendants re- spectively continued the said wall so erected as aforesaid without any objection or interference on the part of the plaintiff" until the said 10th of July, 1874. 9. The defendants at different times raised the level of a portion of their railway between the quay and the said " R. Estate," and laid down a fresh Hue of rails thereon whereby the shipment of coals and goods from the said estate was pre- vented. The defendants went to great expense in laying down the said rails and raising the level of the said portion of the said railway, with the knowledge, acquiescence, and consent of the plaintiff, and on the faith that he acquiesced in the defend- ants' said laying down the said rails and altering' the said PARTNERS. 501 portion of the said railway, and incuiTing the said expense ; Defence to and the level of the said portion of the said railway could not '^^^^^ ^°J. '- 1 • • 1. obstruction be restored to its former position without greatly nicreasmg the of plain- danger to the public in using the said portion, nor without tiff's right altering the level of other parts of the said railway, and causing great inconvenience to the defendants as weU as to the public. 10. The defendants contend that coals are not included in the expression in the said deed, " manure, dung, or goods of any amount or kind," not being ejusdem fjeneris therewith, and that the plaintiff, his tenants and licensees, had under the reservation in the deed no right to bring along the said ways, or either of them, or to store and ship along the said quay coal coming fi'om the " R. Estate." And they contend fitrther, that if such rights were given by the said reservation in the said deed, then the plaintiff" has lost his said rights by extinguish- ment or disuser, or by acquiescence in the acts of the defend- ants and of their predecessors. Partners («)• Action agaiiisl Partner for Breach of Partnership Deed. Claim against 1. The plaintiff' is an accountant residing at , &c. The partner for defendant is also an accountant, and carries on business at , p^^^jjjjj."*^ in the city of London. ship deed. (ff) ActioTis bettvcen jxirfncr.'i.}— As a general rule one partner could Partners not before the Judicature Acts came into force sue another member of cannot his firm in a Court of law. There were a few exceptions to this rule, as generally for instance, where a partner sued another for Ijrcach of an agreement to sue each enter into a partnership (Gale v. Lcclde, 2 Stark. 107) ; or if one partner other at is turned out by the other or others. {Grnniliam v. Gray. 4 Ir. Ch. 501.) law. Again if no matter of account was involved, and if the damages sought to be obtained would not belong to the firm, or would not have to be paid out of the funds of the firm, an action at law was maintainable, irrespective of the state of the accounts between the partners. Thus an When action for not rendering an account {Owston v. 0(jli\ 1:5 Kast, o'iS) ; an they can. action for a penalty stipulated to be paid for breach of agreement {lladrn- hiirxt V. Jiatcs, \^ P.ing. 463) ; an action for not indemnifying the ])laintiff against a debt ( Wani v. licrcr, 1 IMng. IS) ; an action for not i)uttiiig the pTaintifE in funds to enable him to defray expenses as agreed (JSroini v. Tdjiscdt. r, M. & W. 1 r.t) ; have all been" held to be maintainable by one partner against his co-partner or co-partners. Although many claims which before the Judicature Acts came into 502 PARTNERS. Claim 2. By articles of partncrsliip dated tlic 12tli of June, 1870, against made between tlie plaintiff of the one part and the defendant of partner tor ^ ^ breach of the other part, it was for the considerations therein mentioned partner- a<>Teed, aniono- other thinii'S, that the defendant should enter into slap deed. c ' » & ' partnership with the plaintift' in the business or calling of accountants from the 20th of June aforesaid, and that the said partnership should continue for a period of seven years from the date of the said articles, unless it should Ijc sooner terminated by six months' notice in writing given by the plaintiff" to the defendant, or by tlie defendant to the plaintiff'; and it was further by the said articles agreed that the business of the said j)artnership should be carried on at Xo. — , Street afore- said, the defendant's present place of business, and that the rent thereof should be paid by the plaintiff" and defendant in equal shares. It was also further agreed hj the said articles that the profits arising out of the said partnership business should be divided equally between the plaintiff and defendant. 3. The plaintiff went to the said place of business on the 20th of June aforesaid for the purpose of commencing the said jjartnership business, but the defendant then and there refused to admit him to the said place of business or to commence the said partnership business with him. 4. The defendant, on the occasion of the plaintiff" going to the said jjlace of business as in the preceding paragraph men- tioned, orally and has since by letter intimated to the plaintiff" that he would not enter into the said partnership business with him. 5. The plaintiff has, in consequence of the defendant's refusal to carry out the said articles of partnership, lost the profits and advantages which he would have derived from such When force were only enforceable in Courts of Equity were by those Acts made partners enforceable either by way of action or counter-claim in the Common Law can sue Divisions, yet by the 34th section of the Act the takinaj of accounts be- each other twcen partners was specially reserved to the Courts of Eiinity. The cases at law. above cited, however, stand as authorities for any class of claims which may still be enforced in the Common Law Divisions. Suits hi/ and against jiartners.'} — Partners may join in suina: for slander or libel upon them. (Maitlnndv. Guldney, 2 East, 426 ; and Foster V. Lfin-son, 3 Bing. 4.52.) Partners are liable for a tort committed by one of them in connection with the partnership business, as for an injury caused by negligence of one of them in driving a coach used in the business [3Iorcton v. Harden. 4 B. & C. 223) ; or in working a mine. {Ashworth v. Stan7cix, 30 L. J. Q. B. 183.) PARTNERS. 503 partnership business, and he has been injured in his credit aud claim commercial position in consequence of the defendant's said ^^^uelfor breach of his agreement. breach of The plaintiff claims : — ship^deed. (1.) £1000 damages. (2.) Such further and other relief as the nature of the case may require. Statement of Defence. 1. The defendant denies that he prevented the plaintiff from Defence, entering the said place of business, as alleged in the para- graph of the statement of claim, and that he refused to carry on the said partnership lousiness with the plaintiff, as in the said paragraph alleged. 2. If the defendant so prevented the plaintiff and refused to cany on the said partnership lousiness, as in the said paragraph is alleged, he says that he was induced to sign the said articles of partnership by a representation made to him by the plaintiff that he (the plaintiff) was in a position to introduce business from certain persons and firms with whom he alleged he A\-as intimately acquainted and possessed considerable influence. 3. The said representations were false, as the plaintiff at the time of making them well knew. 4. The defendant, before the said 20th of June, ascertained that these representations were totally devoid of foundation, and he consequently repudiated the said articles of partner- ship. 5. The defendant denies each and every the allegations con- tained in the 5th paragraph of the statement of claim. Replij. The plaintiff joins issue on the defendant's statement of defence. Oounter-claim to an Action on a Note setting up a Claim arising out of Partnership Transactions. [Action commoweil hy speciallg indorsed writ, setting out a jjromissory note for £500.] 504 PAKTNERS. Notice in lieu of claim. Defence and coun- ter-claim. Notice in lieu of Siatement of Claim. 1 . The particulars of the i)laiiitiff s' complaint herein, and" of the relief and remedy to which they claim to be entitled, appear by the indorsement upon the writ of summons. The i^laintiffs propose to try this cause at the assizes to be holden at , for the county of {a). Statement of Defence and Counter-claim. 1. The defendant denies that he made the note referred ta in the indorsement on the writ of summons herein. 2. By way of set-off and counter-claim, the defendant claims from the plaintiffs £850 on the following account : — \^Here follows the account which was made out between the jjlaintiffs as executors of the will of the late Anne E., of G., deceased, and the defendant.^ 3. The defendant and the said Anne R. in her lifetime caiTied on the business of farmers in partnership together, and were entitled each to an equal moiety of the profits of such partnership. The defendant claims .£700 as his share of such profits, for which the plaintiffs are accountable to him. And the defendant claims £130 in respect of the items shown in the said account as due to him for disbursements made on behalf of the said partnership and goods supplied by the defendant for use in the said business, and liabilities incuiTed by him for the said partnership, and disbursements made by the defendant for the use of the plaintiffs as such executors. He claims the said sum of £12 for payments made in respect of funeral expenses, as sho^Mi in the said account. The defendant claims : — (1.) £850. (2.) That an account be taken as between himself and the plaintiffs of the assets of the said partnershipj and of the respective rights of the defendant and the said Anne E. in respect thereof. (a) This is given here to show that in such cases as well as in ordi- nary statements of claim, the plaintiff should fix his venue. If he does not the action may, contrary to his intention, be tried in Middlesex. Of course if he wishes it to be tried there, he need not say anything as to the place of trial. (See Order XXXVI. r. 1.) PATENTS. 505- (3.) And that if necessaiy this action be transferred to the Chancery Division of the High Court for the pur- pose of having such account taken. Re2)hj. 1. Except the first item of £12 for cash paid in funeral Reply to expenses, which the plaintiffs admit, the plaintiffs deny all the ^\^:^^ items in the set-off' and counter-claim, and say that they are seeking a not liable in respect of any of such items. account! ^^^ 2. As to the claim for £700, if such claim ever existed (which the plaintiffs deny), it was settled and discharged in account between the deceased Anne R. and the defendant, who on the 31st July, 1874, agreed to settle all past reckonings between them, and the same were then settled and discharged. Rejoinder. The defendant joins issue in the plaintiffs' reply to de- fendant's set-off" and counter-claim, except so far as the same contains admissions. Patents («). Action ly Patentee for Infringements of las Patent. 1. Her Majesty Queen Victoria, by her letters patent under ^^^^ ^^ .^ the Great Seal of the United Kingdom dated the 10th April, patent. Claim for infrin^e- («) Before an action for infringement of a patent can be maintained the following conditions must exist, viz. : — 1. That the plaintifE was the first inventor. 2. The grant of the letters patent. 3. The specification and enrolment or filing thereof. 4. The breach of the patent right. Ti. The damage. By the Patent Law Amendment Act, 18.52 (15 & 10 Vict. c. S.3), s. 2, " All Courts and judges shall take notice of the seal of the commissioners of patents, and also receive as evidence all copies and extracts of docu- ments deposited in the office certified under their seal without further pro(if or production of the originals." By sect. iJ.o a " Register of I'roprietors " is directed to be kept in which shall be entered the as.signment of any letters patent, or of any share or interest therein, any licence under letters patent, and the district to which such licence relates, with the name or names of any person having any share or interest in such letters patent or licence, the date of his or their acqniring such letters patent, share, and interest, and any other matter or thing relating to or affecting the proprietorship in such letters patent or licence ; and certified copies of such entries shall be Essential conditions in an action for infringing patent rights. Assign- ments of patents, &c., to he entered in " Re- gister of Proprie- tors." 506 PATENTS. Claim for infringe- ment of a patent. Assign- ments, &c., of patents to lie in "Hegister of Proprie- tors." The " par- ticulars " to lie delivered with claim or defence. What amounts to an infringe- ment of patent rights. The Crown cannot lie guilty of an infringe- ment. Defences : 1. A de- nial of breach. 2. Prior use of the jjatented article — no noveltv. 1875, granted to tlie plaintiif the sole privilege to make, use, exercise, and vend an invention, that is to say improvements in jmmd facie proof of the assignment of such letters patent, or share or interest therein, or of the licence or proprietorship as therein expressed ; provided always that until such entry shall have been made the grantee or grantees of the letters patent shall be deemed and taken to be the sole and exclusive proprietor or proprietors of such letters patent, and of all the licenses and privileges thereby given and granted. By sect. 41, in actions for infringement of patent, the plaintiff is bound to deliver with his statement of claim particulars of the breaches, and the defendant with his statement of defence, particulars of objections on which he intends to rely, and no evidence will be allowed in support of any infringement or objection not stated in such particulars, &c., and the particulars of objections are to set forth the dates and places at which the invention is alleged to have been used before the date of the ijateut. The judge may allow an amendment of the particulars on the trial. In (juestions whether there has been a violation of a patent, the exist- ence of an intention to violate it is immaterial. {Stead v. Ander- son, 4 C. B. 806.) Proof that the defendant sold the patented article without evidence of his having made it or procured it to be made was held sufficient to warrant a jury in finding that an infringement had been committed. ( Wallon v. Lavatrr, 29 L. J. C. P. 275.) So the selling articles made by the patented machine, even though the defendant did not know of the patent. ( Wright v. JlitelicocJ,',^!,. R. 5 Ex. 37.) The plaintiff must prove, where the breach is denied, that the article was not made by him or his agent. {Bctts v. Willmott, L. E. (> Ch. 239.) It is no defence that the defendant's servants had in the course of their business committed the infringement contrary to his express direc- tions. [Betts V. De Vitre, L. E. 3 Ch. 429.) To import the patented article from abroad, when the patent did not extend beyond England is an infringement. {Elntslee v. Bnitrsier, L. R. 9 Eq. 217.) Even in siich circumstances the transitory resting of the patented article in England was held to be an infringement. {Betts v. Ncihvn, L. E. 3 Ch. 429 ; affirm. L. E. 5 H. L. 1.) The Crown is not bound by letters patent, and consequently cannot be guilty of an infringement. {Feather v. 'The Queen, 35 L. J. Q. B. 200.) This does not apply to contractors under the Crown. {Thomas v. The Queen, L. E. 10 Q. B. 131.) Jfeasiire of damage.Otli April, 1877, duly and according to law enter and file in the (ireat Seal Patent Office with the said specification a dischiimer and memorandum of alteration, as alleged in the hi\\ paragi-aph of the statement of claim. The defendants further deny that the said so-called disclaimer and memcjrandum of alteration is not such a di-sclaimer or alteration as extended the exclusive right granted by the said letters patent ; but the defendants say that, • on the contraiy, the said so-called disclaimer and memorandum 510 PATENTS. Defence to claim for infringe- ment of a patent. of alteration docs extend the exclusive rights supposed to be tiTanted by the said letters patent. 7. The defendants deny that they have on several occasions, or on any occasion since the 20th April, 1877, infringed the said supposed patent rights as limited by the so-called dis- claimer and memorandum of alteration, by causing to be con- structed or by selling and offering for sale within the United Kingdom machines constructed wholly or in part according to or by means of the said supposed invention as so limited, or by causing to be constructed or selling and offering for sale within the said United Kingdom machines constructed by means of eolonrable imitations of the plaintiff's supposed invention as so limited, or of parts thereof, in infringement of the said alleged patent right as so limited. The defendants further deny that they have derived considerable or any profits by means of such alleged infringements as in the Gth paragraph of the state- ment of claim is alleged. 8. The defendants deny that the plaintiff has, by means of the alleged ^Tongfnl acts in the statement of claim mentioned, or by any wrongful act or acts of the defendants whatever, lost and been deprived of profits which would have accrued to him for his sui3posed patent right as so limited. Claim for disclosing an inven- tion about to be patented. Action for disclosing cm Invention aliout to he jxitented. 1. The plaintiff" was and is the first and true inventor of certain improvements in the manufacture of certain kinds of screws, and in tools and machinery to be used in the said manufacture, and had prepared certain drawings, tracings, and manuscripts illustrating the said invention, with a view of applying for and obtaining a grant of letters patent for the said invention, which the plaintiff with the defendant's per- mission left at the defendant's house, subject to the plaintiff's order and control. 2. The plaintiff shortly afterwards applied to the defendant for the said di'awings and other effects, but the defendant A^Tongfully and improperly reftised to deliver them or any of them to the plaintiff, and ^n'ongfully detained and still detains them from the plaintiff, and by reason of the premises the plaintiff has been compelled to make other drawings and tracings, and thereby has been put to great loss, and has been much delayed in obtaining and did not in fact obtain a grant patented. PENALTY. 511 of letters patent for his said inyeution until long after he claim for otherwise could and would but for the defendant's wi'ongful disclosing an inven- acts as aforesaid have obtained the same. tion about 3. The plaintiff further says that the defendant Avi-ongfully Jo^'^^e^^ and improperly, and without any authority from the plaintiff in that behalf, and while the said drawings and other effects of the plaintiff were in the possession of the defendant as afore- said, showed and disclosed the said drawings and other effects, and thereby communicated the said invention to one R. B. Johnson, of Brussels, in the kingdom of Belgium, who, with the knowledge and consent of the defendant, communicated the same to one P. TV. in England ; and the said P. ^Y. by the means aforesaid applied for and obtained the grant of letters patent for an invention and improvement in screws and other things alleged to have been an invention communicated to him from abroad; and the said P. TV. opposed the grant to the plaintiff of letters patent for his said invention upon the ground {inter alia) that the alleged communicated invention aforesaid was identical with that of the plaintiff. 4. By reason of the premises, and in consequence of the delay aforesaid in obtaining a grant of letters patent for his said invention, which the plaintiff has since obtained, the plaintiff has been put to much cost and expense, and has lost considerable gains and profits which he might and otherwise would have made and acquired by means of the grant of the said letters patent, and generally the plaintiff's said invention has been and is much depreciated and diminished in value. Penalty. Action for Penalti/ for acting as a Medical Man without a Qualification. 1. A plaint having been heretofore levied in the County claim for Court of N., holden at N., against G. S., at the suit of the pemiity for ' ' " ,. I 1 acting as a Master, AVardens, and Society of the Art and JMystcry ot Apothe- medical caries of the city of London, the same was, by order of the '"■•^'i '^'t^: ' 1 i? outaquali- Exchcquer Division of this Court dated the day or , fication. 18—, removed into this Court, and the said G. S. has since duly appeared in the said division («). (ff) This paragraph will of course only be introduced where, as in the 512 PENALTY. Claim for l^enalty for acting as a medical man with- out a quali- li cation. Defence. 2. The defendant was a pharmaceutical chemist canying on business at N. ;^. On the day of , 18- — , the defendant, in his shop at N., examined medically one T. J. D., and thereupon for reward supplied the said T. J. D. with medicine of the defendant's own selection, and with medical advice. 4. On the day of , 18 — , and on the day of , 18 — , the defendant in his said shop examined medically one D. H., and thereupon for reward supplied the said D. H. with medicine of the defendant's own selection, and with medical advice. 5. At various other times within six calendar months next before the day of 18 — , the defendant examined patients medically in order to ascertain the nature of their diseases, and thereupon for reward supplied them with medicines of his own selection, and gave advice with a view to the cure of their internal and other diseases. 6. The defendant has never received the certificate mentioned in the 14th section of the statute of 55 Geo. 3, c. 194, nor was he practising as an apothecary either before or on the 1st August, 1815. 7. The plaintiff's contend that by the conduct set out in paragraphs 3, 4, and 5 the defendant has acted or practised as an apothecary within the meaning of the 20th section of the said statute, and that in consequence of such acting or practising, and of the facts stated therein, the defendant is liable to a penalty of £20, according to the provisions of the said statute. The plaintiff's claim £20. Statement of Defence. 1. The defendant denies each and every the allegations con- tained in the 3rd, 4th, 5th, and 7th paragraphs of the state- ment of claim. 2. In further answer to the 3rd, 4th, and 5th paragraphs, the defendant says that he did not, at the times therein mentioned or at any other times, examine medically the said T. J. D., or the said D. H., or any other persons as therein alleged. 3. In further answer to the same paragraphs, the defendant case given, the action has been transferred from an inferior to a superior Court. PENALTY. 513 says that he did not at the time therein mentioned, or at any Defence to ■' • 1 T 1 1 • action for other time, supply the aforesaid persons with medical adyice practising for reward as therein alleged, or otherwise. cal^i^n^'' 4. In fm-ther answer to the same paragraphs, the defendant without says that he did not at the times therein mentioned, or at any ^'U'^j|g.*_ other time or times, supply the aforesaid persons with medicines tion. of his OAMi selection for reward as therein alleged, or otherwise. 5. In further answer to the same paragraphs, the defendant says that if he did supply the said persons with medicines of his own selection for reward or otherwise, (which he denies,) he did so in using, exercising, and carrying on the trade or business of a chemist and druggist in such manner as the same trade or business was used, exercised, and can-ied on by chemists or druggists before the passing of the 55 Geo. 3, c. 194. C. Before the passing of the 55 Geo. 3, c. 194, it was usual and customary for chemists and druggists, in using, exercising, and carrying on the trade or business of a chemist and druggist, to prepare, compound, and supply medicines of their own selection in their own shops for the cure of simple com- plaints ; and the defendant says that if he had any dealings with the aforesaid ix;rsons (which he denies), he did no more than prepare, compound, and supply to them in his own. shop medicines of his own selection for the cure of simple complaints in accordance with the use and custom aforesaid, and not otherwise. 7. The defendant denies that his conduct towards the afore- said persons, or any of them, is coii'ectly set out in the 3rd, 4th, and 5th paragraphs of the statement of claim, and says that he has not by his conduct towards the aforesaid persons acted or practised as an apothecary within the meaning of the 20th section of the statute, and the defendant denies that he is liable to a penalty of £20 under the provisions of the said statute. Bephj. The plaintiffs join issues with the defendant on his defence. Ac lion for a Pemdty for Bribery. 1. The plaintiff' is a , &c. Tiie defendant is, &c. Action for uriDGrv tit 2. On the 1st of November, 1877, an election was held in an election, the borough of , for choosing a member to serve in Parlia- L L 514 Action for bribery at an election. PROMISSORY NOTES. nient for the said borough, pursuant to the statutes in that behalf. o. Tlic defendant at the said election gave money to one G. K., then being a voter at the said election, in order to induce liini to vote for one William K., one of the candidates for the representation of the said borough , at the said election, contrary to the statute 17 & 18 Vict. c. 102. 4. The defendant thereby became liable to forfeit the sum of £100 to the plaintiff, who sues the defendant for the said sum in this action pursuant to the said statute. The plaintiff claims £100. Statement of Defence. 1. The defendant denies the allegations in the 3rd paragraph of the statement of claim. •2. The defendant admits that while the said election was pending he gave money to the said Gr. K., but denies that he gave such money to induce him to vote for the said William K., or any other candidate at the said election. Principal and Surety- See Guarantee. Promissory Notes. See Bills of Exchange. KECOVERY OF LAND. 515 Recovery of Land («), Action hy public Trustees to rccocer Possession of Foreshores. 1, The plaintiffs are the trustees elected under and in pur- By public suance of an Act of Parliament, 3(5 Geo. 3, c. 101, intituled *Jcolerpos- an Act for dividing, allotting, inclosing, draining, embanking, session of foreshores. {a) Before the Judicature Acts aud Rules came into force there were no pleadings in actions for the recovery of land, houses, &c. Since then, however, the plaintiff (not the claimant as formerly) must, under Order XEX. r. 4, state the grounds on which he seeks to recover the land, &c., either ^vith or without mesne profits, as in other actions. Tliis action, however presents an exception to other actions in this respect, that no -other cause of action can be joined with it, except claims for mesne profits and arrears of rent in respect of the premises claimed, and dam- ages for breach of any contract '• under which the same or any part thereof are held." (See Order XVII. r. 2.) The word contract, though usually applied to simple contracts, is no doubt used here in its strictly legal sense, and would include covenants. Formerly it was necessary for a claimant in ejectment to show a legal title. This seems to have been changed by the 24th section of the Judicature Act of 1878, which enables equitable owners to sue in any •common law division. And by sect. 2.5 it is expressly provided that a mortgagor entitled to the possession of land may sue for the recovery thereof in his own name, if the mortgagee have not given notice of his intention to enter into possession or receipt of the rents and profits thereof. On the other hand, inasmuch as there were formerly no pleadings in ihe action of ejectment, it was impossible for a defendant to avail himself of the provisions of the Common Law Procedure Act, 1854, allowing equitable defences at law. This is evidently altered by the Judicature Acts, under which pleadings have been introduced into it, and also by the provision of the Judicature Act. 1873 (sect. 24, sub-sect. 2), that equit- able defences may be pleaded as in a Court of Equity before the passing ■of the Act. Formerly, the corresponding action of ejectment could only have been brought in the county within which the premises were situate, unless, under the Common I^aw Procedure Act, 1852, the Court or a judge •ordered it to be tried elsewhere. Now, however, that local venues have been abolished by the Judicature Acts (see Order XXXVI. r. 1), it is ■clear that the action may be tried wherever the plaintiff proposes to try it, unless the Court orders it to be tried elsewhere ; and if no county or • place is named, it is to be tried in Middlesex. The general law, however, applicable to such actions is not altered, and it is therefore necessary to give a summary of it. One or other of the following persons is the plaintiff in an action for the recovery of land, namely, landlords, heirs-at-law. devisees, mort- gagees, executors and administrators, trustees of bankrupts, and parsons. IjMidlnrds.'] — In actions f(jr recovery of land brought by landlords against tenants they are in general not rc<|uircd to prove their own title, but merely the demise and its expiration, and tenants cannot in general ■tlispute the lessor's title or that of his assignee. {Cuthhertsdn, v. Irrintj, 2!) L. J. Ex. 485, Ex. Ch.) The assignee or sub-tenant of the lessee is ■Cfiually estopped. (London, ^- .V. W. llml. Co. v. West, L. 11. |2 C. P. -553.) The doctrine of estoppel applies in the case of encroachments made L L 2 Pleadings in actions for the re- covery of land now necessary. A person having ;i merely equitable title may now sue for the re- covery of land. Equitable defences may be pleaded. The action may now be tried wherever the plaintiff selects. Landlord not bound to prove his title as against a tenant. 51G RECOVERY OF LAND. By public trustees to recover pos- session of foreshores. Landlord not bound to prove his title as against a tenant. What is a tenancy at will How it arises and how ended. A yearly tenancy, howci-eated and how terminated. How tenancies for years created. Where landlord proceeds at com- mon law, strict and iinproTinp; tlic open and common fields, in,e;s, meadows, pas- tures, and other commonable lands and waste grounds within the several townships of M., W., B., and P. in the county of L. by a tenant on land adjoining belonginsf to a stranger, and then held by the tonant as part and parcel of the demised premises. (I/i.ihiirn, Earl of,v. Diirirs, L. R. 1 C. P. 259. See also WliitiHorr v. Ihinq)hric>t,'L. R. i C. R. 1.) But if a defect of lessor's title appears in the lease, the tenant is not estopped from showing the defect. {Sannders v. Merryn-cathcr. 3.5 L. .J. Ex. 11.5.) Proof of tenancy, and trrmhiafion thereof.'] — Tenancy at will arises where a person has been let into possession pending a treaty for a pur- chase or lease (liif/ht v. Beard, 13 East, 210), or under a void or imper- fect lease or conveyance, or where, having been tenant for a term which has expired, he continues in possession negotiating for a new one. In this case the tenancy is determined by cither a formal demand of pos- session or by any act inconsistent with a tenancy at will, such as grant- ing a lease to another to commence at once, and giving him possession ( WalUn V. Delmar. 29 L. .J. Ex. 270), or an entry by the landlord and an exercise of ownership by him. {Tiirner v. Bennett, 9 M. & W. 643.) A tenancy from year to year is shown, in the absence of other evidence, by payment and receipt of yearly rent. If a ])erson having- a lease void by statute, or an agreement for a lease, enter into possession and pays- rent at so much a year, this makes him a tenant from year to year, on^ such terms of the void lease or of the agreement as are not inconsistent with such a holding. (8ee notes Doe d. Binge v. Bell, 2 Sm. L. Cas. Ttlr ed. 90.) The same presumption holds where a corporation is either land- lord or tenant, and the lease is void as not being by deed. {Eccles. Com. V. Merral, L. R. 4 E.x. 1()2.) If a tenant holds over after determination of his term, and pays rent, the presumption is that he holds from year to year, even though the rent is increased by agreement. (Hyatt v. Griffiths, 11 Q. B. 505.) This form of tenancy is terminated by six months' notice, to be given six clear months before the termination of any whole year from its commencement. Thus, if it commence on the 25th December, 1870, notice to tei'minate it at the end of the first year must be given. six months before 25th of December, 1871, and so on. So that it must continue one year at least, and a niunbcr of whole years afterwards. As to what constitutes a good notice to quit, see Woodfall's Landlord and Tenant, 11th ed. 300—323. Longer tenancies are generally created by lease or agreement. Leases for over three years must be by deed undei the joint effect of the Statute- of Fra.uds and the 8 & 9 Vic. c. lOO. For full information as to the crea- tion, &c., of tenancies, see Woodfall's Landlord and Tenant, 11th ed. 110. Tenancies under leases or agreements are terminated by effluxion of time, notice in certain cases, and forfeiture for non-payment of rent or by breach of covenant or otherwise. In cases of forfeiture, the forfeiture must, in the case of an assignee of the reversion siiing have accrued after the assignment, as the right of entry does not pass thereby. {Hunt v. Bishop, 22 L. J. Ex. 337 : and see Hunt v. Bemnant. 23 L. J. Ex. 135, Ex. Ch.) Such a right, however, jjasses to the devisee of the reversion under 1 Vict. c. 20, s. 3, and therefore the same doctrine would not hold in his case. If the landlord proceeds under the common law as opposed to the statutory remedy mentioned in the next paragraph, he must prove and the statement of claim must show that all the ceremonies of the cfnnmon law have been strictly complied with, as the demand by the landlord or his agent of the precise rent payable to save a forfeiture on the exact day on which it became due. and payable at a proper place of payment, and at a HECOVERY OF LAND. 517 2. Under and by virtue of the said Act certain foresliores and % public . , -r-w-m -,1 -T i 1 Li -i.i trustees to banks ot the River Trent, ni tlie said county, and the right to i-ecoverpos- the possession thereof, became and are vested in the })hiintitis as session of foresliores. convenientliour before and at sunset. (1 Wms. Sannd. 278, ct .fcti. (16) ; compliance iind see Barrij v. Glover, 10 Ir. C. L. 11. 113, C. P.) Such formalities with all may, however, be dispensed with by express stipulation. (Pkillijjs v. Bi-kl(je, L. R. y C. V. 48.) Under the Common Law Procedure Act, 1852, s. 210, if half a year's rent is in arrear, and the landlord has a right by law to re-enter for non-payment, he may, without any formal demand or re-entry, serve his vsrrit (the manner is in-escribed by the section), and if it appear in the case of judgment by default, by affidavit or on the trial, that six months' rent was due before service, and that no sufficient distress was then to be found on the premises, and that the lessor had power to enter. ,theu he will be entitled to judgment and execution as if the rent had been formally demanded, and the landlord had re-entered. Proceedings under tliis section may, however, be stopped by the tenant tendering or jjaying into Court the rent and costs. (See sect. 212.) It frequently becomes an important question whether a landlord docs not by his conduct waive a forfeiture. There have been numerous decisions on this question, for wliich the reader is referred to Woodtall's Landlord and Tenant, 11th ed., 294. Taking proceedings in eject- ment amounts to a final election by the lessor to avail himself of the forfeiture. Hence ,the receipt of rent that would have accrued subse- What quent to the forfeiture would not be a waiver {Buc d. Moircraft v. Meua\ amounts to formalities requisite. Statutory remedy given to landlords to recover possession of their liroperty. 1 C. & P. 346) ; nor a distress for such rent ( Grlmtvood v. Moss. L. K. C. P. 360) ; nor the delivery of particulars of breaches complaining of non-payment of rent, together with other breaches. (Toleinun \. Port- .hunj, L. K. Q. B. 245 ; aff. Ex. Ch. L. R. 7 Q. B. 344.) As to relief fi-om forfeiture, see 22 & 23 Vict. c. 35, ss. 4, 6 ; and Com- mon Law Procedure Act. 1860, ss. l,-2, 4 — 11. Suits hij h:irs-at-lun'.'] — When the plaintiff in an action for the re- covery of land is an heir-at-law, he must aver, and be prcjjared to prove his descent through lawful marriage from the jtiin-hnscr (as defined by 3 & 4 Wm. 4, c. 106, s. 2), and that all intermediate heirs between him- self and the ancestor under whom he claims are dead without issue. In such suits questions of births, marriages, deaths, and identity con- stantly come into controversy. It is not conceived to be within the scope of this work to dwell on these subjects, and in any suit of this kind recourse must by had to the several valuable works in which they will be found discussed. iSiiits hij dfV(sers.]—A devisee, in order to establish his claim, must jUOVC — 1. That the testator was entitled in fee. 2. The regular execution of the will, or in certain cases the grant of pi'obate under 20 & 21 Vict. c. 77, s. 61. 3. The death of the testator ; and 4. The determination of the estates (if any) limited prioi' to the limi- tation in his favour. In the case of copyholds — 1. The seisin of the testator, of wliich his admittance and actual pos- jicssion would be the best evidence. a waiver ot a right of re-entry. Essential averments where heir- at-law is plaintitf. Where de- visee is jilaintiff. Where de- visee of The surrender by him to the use of his will in the case of testators copyholds dying before the 12th of July, 1815. But it is unnecessary in is plaintitf. the case of persons dying after that dale (55 Geo. 3, c. li)2) ; Tlie will itself, of which probate under 20 &. 21 Vict. c. 77, will be sufficient evidence. 518 RECOVEEY OF LAND. T>y public trustees to recoverpos- session of foreshores. such trustees as afoi'csaid ; tliat is to say (amongst other things)., certain banks and Ibreshorcs, in tlie said county lying on the east side of tlic said ri\-er, and bounded on the east by certain; 4. The devisee's own admittance. Where do- In the case of devise of leaseholds, the plaintiff must prove — visec of 1 . The title of the devisor, unless the defendant is estopped from dis- leasehokls puting it. (See «7t^', .'515— .51G.) is plaintiH'. 2. The probate of the will. 'A. The assent of the executor to the bequest or devise. Where exe- In the case of executors and administrators, the jilaintiff must show — cutors, &c., 1- The leasehold title of his testator. are plain- 2. The testator's death, tiffs. B. The })robate or grant of administration. The term vests in an executor at the death of the testator, and the executor may therefore recover on a claim dated between the time of the testator's death and the probate. Com. Dig. Adm. (B. 10). Administration, when granted, relates back for some purposes to the intestate's death. In Ireland the doctrine of relation was established for the purpose of ejectment. {Paftm v. Pattav, Ale. & Nap. 493.) By i5 & 4 Wm. 4, c. 27, administration is made to relate back to death for the purposes of the Act. (See also title E-eecntors and Admhiistrafom.) The following are the usual defences to suits for the recoveiy of land Ijy devisees, viz. : — Common !• -A disclaimer by the devisee. defences to 2. Fraud and undue influence exercised over the testator, actions liy •5- Incapacity of the testator from infancy or coverture, devisees. 4. Incapacity from idiocy, insanity, or such mental aberration ap would deprive the testator of the testamentary capacity. See judgment of Sir J. P. Wilde in Sniifh v. TebbU. L. R. 1 Prob. & Div. 5. Revocation of will by cancelling, burning, tearing, or destroying (ivimo reroca/idi. 6. Revocation by subsequent will, making a disposition of the pro- perty to another person. Suits for recovery of fosst'ssion hij mortdar/ccs.'] — Where the mortgagor is in possession after default, and the action is brought against him, the mortgagee has only to prove the execution of the mortgage, a demand of possession being in such case unnecessary. {I)or d. lioby v. Maisry. 8 B. & C. 7r.7 : and see note to Kicch v. ilall, I Sm. L. Cas. 7th ed. .579.) Mortgagee If a third person is in possession by a title prior to the mortgage, then suing to re- the mortgagee is in the position of an assignee of the reversion, and must cover the show a title to oust him, as in the case of a tenant from year to year it mortgaged must )je shown that he received a regular notice to quit. l^remiaes. A railway company having power to mortgage the undertaking with all tolls, does not enable a mortgagee under that power to recover the railway. {Mynt. v. SL lldrn'.f Hail. Co., 2 Q. B. 3G4 ;'and see Gardner v. Land., Cliut., S,- Borer Rail. Co., L. R. 2 Ch. 201, 385.) A mortgagee of turnpike tolls cannot recover in ejectment, unless the power to mortgage includes land such as toll-houses and gates. (Mytton v. Gilbert, 2 t. R, 1()9.) As to suits for recovery of such property under 3 Geo. 4, c. ]2(), see ThoDipHon v. Lcdiart, 4 B. & A. 137 ; Watton v. Pevfold, 3 Q. B. 757. Svit hy execvtion creditor for rerorery of land.'] — The ])laintiff must prove the judgment, the elegit, and the incjuisition or return thereon. (B. N. P. 104.) If a third person be in possession of the land extended. RECOVERY OF LAND. 519 lands of tlic defendant, being certain old iuclosures or lands J^.^JJ "^f't^ and gronnds specified in the schedule annexed to an award recover pos- made under and in pui'suance of the said Act, and numbered in ^^^2° "/^ the said schedule as follo^Ys . 3. The defendant has taken and retains possession of the banks and foreshores specified in the last paragraph hereof, and wrongfully ^\-ithholds the same from the plaintiffs. The plaintiffs (as such trustees) claun possession of the said banks and foreshores. Statement of Defence. 1. The defendant does not admit the 1st paragraph of the Defence. statement of claim. 2. As to the 2nd paragraph of the statement of claim the defendant denies that the foreshores and banks specified in the said 2nd paragraph, or any part thereof, ]:)ecanie or are or is rested in the plaintiffs as such trustees as in the statement of claim mentioned, or otherwise. :;. The defendant does not admit that he has or that he re- tains possession of the banks and foreshores specified in the said 2nd paragraph of the statement of claim or of any part thereof. 4. The defendant says that even if the said foreshores and Statute of banks or anypai-t thereof were "or was at anytime heretofore Limitation. vested in the plaintiffs, or in any person under whom they claim it is sufficient on the part of the plaintiff to prove Sijirtmd facie title in Where exe- the debtor, and it then lies on the defendant to show a title anterior to cution cre- tlie judgment. {Er.ans v. Owett, 2 C. & J. 71.) But by the 27 & 28 Vict, ^itor is c. li2. s. 1, since the 2!)th of July, 18H4, "no jxidgment shall affect any phintitf. land until such land shall be actually delivered in execution." Suit a hij iruntecH of hunhnqdii.'] — See Jian]irv2>frii. Suits hij par. wnx.~\ — If the plaintill: does not claim iu his character of Where :i landlord, he must deduce in his statement of claim his title, by stating parson is that he was duly presented, instituted, and inducted, unless the de- plaintiiT. fendant is estopped from disputing his title ; and he need not show the title of his patron. {Ilcath v. rnjnn, 1 Vent. 14.) Presentation by a corporation aggregate must be under the common seal. (Gibson's Codex, 704.) The parson cannot now eject a tenant at rack-rent under his predecessor, as by 14 & l.^ Vict. c. 2;"), s. 1, such a tenant is entitled to hold until the expiration of the current year of the tenancy, and then quit without notice. Sevihlt; a sentence of suspension, while in force, will prevent a parson maintaining this action. {Morris v. Ogdrn, L. K. 4 C. I'. i;s7, 702, 70:i.) A defendant in such circumstances should, in his statement of defence, allege the suspension. See Order XIX. r. 1'., and ante, i)p. 71-2, for rule dispensing with necessity of defendant in possession of land pleading his title in an action against him for the recov(;ry of the land. )20 KECOVERY OF LAND. Recovery of possession of fore- shores. IJy lessor against lessee for breaches of covenant. the plaintiffs' right to maintain tliis present action, is barred the Statute 3 & 4 AVm. 4, c. 27. >y By lessor against as- signee of the lea-se for breaches of covenant. Claim ly Lessor mjainst Lessee io re-enter on the demised Land for Breaches of Covenant. 1. On the day of the i)laintiff, 1)}' deed, let to the defendant a house and premises. No. 52, Street, in the city of liondon, for a term of twenty-one years, ii-om the day of , at the yearly rent of £120, payable quarterly. 2. By the said deed, the defendant covenanted to keep tlie said house and premises in good and tenantable repair. 3. The said deed also contained a clause of re-entry, entitling the plaintiff to re-enter upon the said house and premises, in case the rent thereby reserved, whether demanded or not, should be in arrear for twenty-one days, or in case the defendant should make default in the performance of any covenant upon his part to be performed. 4. On the 24th June, 187 — , a quarter's rent became due, and on the 29th of September, 187 — , another quarter's rent became due ; on the 21st October, 187 — , both had been in arrear for twenty-one days, and l)oth are still due. 5. On the same 21st of October, 187 — , the house and pre- mises were not, and are not now in good or tenantable repair, and it would require the expenditure of a large sum of money to reinstate the same in good and tenantable repair, and the l^laintiff 's reversion is much de})reciated in value. The plaintiff' clauns : — (1.) Possession of the said house and premises. (2.) £ for arrears of rent. (3.) £ damages for the defendant's breach of his covenant to repair. (4.) £ for the occupation of the house and premises, from the 29th of September, 187 — , to the day of recovering possession. Action hy Lessor against Assignee of the Lease to recover Posses- sion on Account of Forfeitvre of Lease hg Defendant. 1. The plaintiff* is the owner in fee simple and lessor of cer- tain premises in St. G., being the premises demised in the lease hereinafter mentioned. 2. By indenture, dated September, 185 — , the plaintiff' EECOVEEY OF LAND. 521 (then Sii- J. H.) demised to P. M. for the term of thii-ty-one years, % lessor from the December, , then next ensuing the following gf„^°g J^' premises. ^^^ l6'^«° [ffere mtrocluce a description of the premises.'] for breaches <- J. J X -I 01 covenant. 3, The rent reserved was £105, payable on the usual quarter days. 4. The said lease contained, sunong others, tlie following covenants material to this case : — {a) A covenant by the lessee, his executors, administrators, and assigns to pay the rent at the proper time. (&) A covenant by the lessee, his executors, administrators ^ and assigns that he would pay all costs, expense, &c., for sewers and di'ains executed by order of the local authority, and pay all taxes and assessments ; and also so far as the premises might be subject to the operation of the M. L. M. Act, the •C. L. H. Act, &c., or the bye-laws of the Board of Works for the district in which the premises or any of them are situate, •conduct, and maintain the same in all respects in conformity Avith the provisions of the said Acts and bye-laws, and at all times keep the said premises in a cleanly and wholesome state and condition, and cause the same and every of them to be \\cll supplied Anth pm-e water during the same term. (c) A covenant by the lessee, his.executors, administrators, and assigns to repair- and amend within thi-ee months after notice. o. The said indenture also contained a clause of re-entry imthorising the plaintiff to re-enter on the demised premises in •case the rent thereby reserved should be in arrear for twenty- y j^rautco of tlic re- version against assignee of tlie terms. Defence. By mort- gagee to recover possession. Tlie plaiiitifr claims : — (1.) £200 damages for breach of the covenant to repair. (2.) £500 damages for breach of tlic covenant to yield up possession. (3.) That the plaintiff be put in possession of the said farm and dwelling-house. Staiement of Defence. 1. The defendant denies that he has neglected to perform the covenant of the said lease to repair as alleged in the 5th para- graph of the statement of claim or at all, and says that the said premises have always been and now are in a good state of repair. 2. If the said dwelling-house, or the said gates, fences, or railings, have become to any extent dilapidated, injured, or damaged, they have become so owing to the effect of time and ordinary wear and tear, and not to neglect or omission by the defendant to perform the said covenant to repair. 3. As to the Gth paragraph of the statement of claim, the defendant says that he was ready and willing and offered the plaintiff to yield up possession of the said farm and dwelling- house on the said 25th of March, 1878, but the plaintiff re- (piested him to continue the possession thereof pending certain negotiations which were then being carried on between the plain- tiff and the defendant for a renewal of the defendant's tenancy. Action Inj Mortgagee of Premises to recover Possession thereof from Trustee under Mortgugor' s Liquidation. 1. On or about the 29th of June, 187G, one R. B. H. was possessed of a certain messuage and premises situate and being- No. , in the county of , for a term of years therein mentioned to come and unexpired, to wit the term of twenty-one years from Lady-day 1871, under a lease granted by Mrs. E. E. to the said R. B. H. at and for the yearly rent of £300. 2. By an indenture dated the 29th of May, 1877, the said R. B. H. demised to the plaintiffs the said messuage and premises, to have and to hold the same for all the then unexpired residue wanting the last day thereof of the said term of years granted on the said premises in and by the said lease. The said demise was by way of mortgage for the purpose of securing to the plaintiffs payment of certain moneys then advanced, and which might RECOVERY OF LAND. 527 thereafter be advanced to the said R. B. H. or become due to % mort- gagee to recover the plaintiffs fi'om him. The said indenture contained and con- ferred powers upon the plaintiffs of entering upon and holding the possession. ■said messuage and premises at any time, and of selling the same. 3. On or about the 23rd day of December, 1877, the said R. B. H. being a debtor unable to pay his debts within the meaning of the Bankruptcy Act, 1SG9, duly filed his petition for the liquidation of his affairs by arrangement or composi- tion in the London Bankruptcy Court, having jurisdiction in that behalf, and such proceedings were had that the defendant was on or about the 8th of January, 1878, duly appointed trustee in the said liquidation. 4. Before and at the time of the institution of the said pro- ceedings, the said R. B. H. was indebted to the plaintiff's in a large sum of moneys secured by the said indenture made between him and the plaintiffs, viz., £692, or thereabouts, and interest thereon, and the same still remains altogether due and unpaid to the plaintiffs, although payment thereof has been duly demanded of and fi-om the defendant and the said R. B. H. The plaintiffs have not proved the said debt under the said liquidation proceedings. 5. Possession of the said messuage and premises has been duly demanded of and from the defendant, then Ijeing in possession as hereinafter mentioned. fi. The defendant, on or al^out the Sth January, 1878, entered into and is still in possession of the said messuage and premises, and has refused to give them up to the plaintiffs, though required to do so as aforesaid. The plaintiffs claim : — (1.) Possession of the said messuage and premises. (2.) Mesne profits of the said messuage and ])remises from the time of his entering into possession till judgment after the rate of £ per annum. (3.) Further and other relief, &c. Cllaim by Trustees of a Settlemcni for Recovery of Lands held by them on the Trusts, on accoiuif of Breaches of Covenant by the Settlor. ]. By indenture dated the 30th September, 1859, made ]'.y trustees between one Jane II., since deceased, and the defendant J. E., JlJent^'to^'"' 52S EECOVEaY OF LAND. recover t|ic said Jaiic H. then beine; seised of a certain messnaffe possession , . . of lands tenement and premises situate at , and certain land at the forming back and side thereof, for a customary estate in fee simple, let settled '^ tl^c same to the defendant J. E., to hold from the 29th day of property. September tlien instant for the term of t^^■enty-one years, at the yearly rent of £05. 2. The defendant J. E., by the said deed, for himself, his executors, administrators, and assigns, covenanted with the said Jane H., her heirs and assigns, that he the said J. E., his exe- cutors, administrators, or assigns, should and would at all times during the continuance of the said demise well and sufficiently repair, uphold, support, maintain, paint, pave, cleanse, and keep the said messuage and premises, with the appurtenances, with all needful and necessary reparations, cleansings, and amend- ments whatsocs'er, and particularly should and would in every three years of the said term paint or cause to be painted all the external wood and ironwork, and in every seventh year all the internal wood, iron, and stucco work belonging to the said messuage or tenement and premises twice over with good oil- colours in a workmanlike manner. And also that it should be lawful for the said Jane H., her heirs, executors, administrators^ and assigns, or her or their surveyor, workmen, and others em- ployed by her or them, twice or oftener in every year, at reason- able times in the daytime, to enter into the said premises, and every part thereof, for the purpose of viewing and examining the state and condition of the same, and in case of any decays, defects, or wants of reparation then found or appearing, to give or leave notice in writing in or at the said premises for the said J. E., his executors, administrators, or assigns to repair and amend the same within tlu'ee calendar months fi-orn the date of such notice, and that he the said J. E., his executors,, administrators, or assigns, should and would within such time, at his or their own costs and charges, well and sufficiently repair and amend the same accordingly. 3, By the said deed it was also provided, that in case of the non-performance of any of the covenants or agreements therein- before contained, including the said covenants to repair, on the part of the defendant J. E., his executors, administrators, and assigns, to be done, performed or kept, then and from thence- f(jrth, and in either of the said cases, it should be lawful for the EECOVERY OF LAND. 529 said Jane H.,lier heirs, executors, administrators, into and upon By trustees the said demised premises, or any part thereof, in the name of "^g^^.^^**^'®" the whole, to re-enter, and the same to have again, repossess, recover and enjoy, as in her or their former estate, as if the said lease ^\°^^^^g*'" had not been made and executed. forming 4. On or about the said 29th of September, 1850, the de- "P^^^^^^^ ^^'''■ feudant J. E. entered npon and had possession of the said pro[)erty. demised premises nnder the said lease. 5. During the said term the said Jane H. died, and by her will devised to Q. W. H., F. S. H., and H. M. H. her rever- sion of and in the said premises, upon the trusts therein con- tained, and also declared that the power of appointing new trustees should be exercised in the manner therein mentioned. G. Afterwards the plaintiffs were duly and in accordance with the said will appointed trustees of the said will in the places and stead of the said G. AV. H., F. S. H., and H. M. H., and the said reversion of the said J. M. H. became and was vested in the plaintiffs. 7. The defendant J. E. thereupon attorned tenant of the said demised premises to the plaintiffs as such trustees, and continues to hold the same. 8. The following breaclies of covenant have been committed during the said term. The defendant J. E., or his assigns, did not nor would well and sufficiently repair, uphold, support, amend, paint, pave, cleanse, or keep the said messuage and premises, with the appurtenances, with all needful and neces- sary reparations, cleansings, and amendments, and did not within every three years of the said term, paint or cause to l)e painted all the extei'iuil wood and iron work, or in every seven years all the internal wood, iron, and stucco work belong- ing to the said messuage or tenement and premises twice over with good oil-colours in a Avorkmanlike manner ; and tliough the ]ilaintilfs, as and being the trustees and assigns of the said .Jane H., did on the Ist of Novcm])or, 1H7G, give due notice to the defendant J. E. to repair and amend certain decays^ defects, and wants of reparation found and appearing on the said premises Avitliin three calendar months from the date of such notice, yet the defendant J. E. did not nor would repair or amend the same within the said time, and by reason of the premises, tlie said messuage and tenement, and the appui'- M M •M) BELEASE. By trustees of a settle- ment to i-ecover pos- session of lands form- ing part of settled property. tenances, have become ruinous and out of repair, and certain })ortions of the said demised premises and appurtenant thereto became and were dila]>idated, prostrate, and in a ruinous con- dition, and the said term having thereupon become forfeited and determined, the defendant J. E. did not peaceably and quietly yield up to the plaintiffs the said messuage and pre- mises, together with all things fixed, fastened, or set up in and upon the same, in a state of good and sufficient repair, accord- ing to the terms of the said covenant, but by himself or his tenants still holds possession of the same. 8. The other defendants have at some time or other been let into possession of parts of the demised premises by the defen- dant J. E., and refuse to deliver up possession to the plaintiffs, and keep them out of possession of the respective parts in their possession. The plaintiflFs claim : — (1.) Possession of the said messuage and premises. (2.) Damages against the defendants J. E., C. W. E., and S. A. E., as executors of J. E., deceased, for the breaches of covenant above stated. (3.) Damages for mesne profits from the 25th day of Decem- ber,^ 187G. [For claim ly landlord to recover -possession of demised land from tenant on determination of the tenancy, see Addenda.] A form of release. Release («). Statement of Defence. 1 . If the said debt in the statement of claim mentioned was as alleged good and subsisting on the said 4th of January A simple contract Ijcforc l.ireach re- leased by jiarol. How re- leased after treach. (rt) A simple contract may hefore hrmch be discharged by parol, even snnlie where it is in writing, pursuant to the Statute of Frauds. But a contract in writing under the Statute of Frauds cannot be varied by ]iarol. {Goman v. Salidntry, 1 Vern. 240; and see Goss v. Nvgrnt, 5 B. & Ad. 65.) Nor can it be rescinded and another contract be sub- stituted for it by parol. {Nohle v. Ward, L. B. 1 Ex. 117 ; L. R. 2 Ex. 185, Ex. Ch. ; and see IHchnan v. Haynes, 44 L. J. C. P. 358.) After breach the liability on a contract can only be discharged by a release under seal or by accord and satisfaction (B. N. P. 152 ; Willovglily v. Baclihoviie, 2 B.' & C. 824), or by proof of a valid agreement substituting a new cause of action. {Xohlc v. Ward, siipra.) REPLEVIN. 531 (which the defendant does not admit), the defendant says that after that date, and before the commencement of this action, that is to say on the 30th of January aforesaid, the plaintiff by a deed bearing that date, and made between the plaintiff of the one part, and the defendant of the other part, released the defendant therefrom. A form of release. Replevin («). Statement of Claim in Replevin. 1. The plaintiff previously to the 2;jth March, 1877, was claim in weekly tenant to the defendants of a house and premises situate lepievm. at No. 38, George Street, Camberwell, in the county of Surrey. A release of the whole of a debt given to one of two, or more joint or joint and several debtors discharges all of them, but receiving a portion of a debt from one of them, and putting an end to an action against such one, does not discharge the other or others. {Wattos v. iSniitJi, 2 B. & Ad. 889.) A qualified release of one co-debtor as where the right is reserved to make him a nominal defendant with the others, does not release the others. {Solh/ v. Forhrx, 2 B. & B. 38.) So where the remedy is reserved against the others. ( Willis v. Be Castro, 27 L. J. C. P. 243.) iSo where on release of principal .debtor the right against surety is reserved. (Green v. Wyiin, L. K. i Ch. 204 ; Btifesony. Gosline/^'L.TX. 7 C. P. 9.) In the last two cases the so called release is not strictly such. but a covenant not to sue. (S. CC.) This covenant formerly supported a plea of release on the ground of avoiding circuity of action. {Ford v. Beech, 11 Q. B. 853.) Aforiiorl under the present system of pleading it would support a defence alleging a release. A discharge under the Bankruptcy Act, 18^9, of one joint debtor or co- contractor does not release the other. (Sect. ".().) This provision extends to cases of composition (j\/e//r((fhv. Grai/, L. R. 9 C. P. 21(;) and arrange- ment. (Lllis V. Wilmot, L. Pi. 10 Ex. 10.) It has been held that a reso- lution for composition duly registered, though binding on creditors as against the debtor, does not release his surety. {Ex parte Jaeohs, L. H. 10 Ch. 211.) However, the contrary was held in Wilson v. Lloijd, L. R. 1 Eq. (iO. But this latter decision seems to overlook the uOth section referred to. Where the releasee has obtained the discharge by fraud or under cir- cumstances which render it void, such as drunkenness, &c., the plaintiff should in his reply set forth this fact, and should not rely mci'cly on a ). 1. The defendant is a jeweller, Arc. Claim for 2. On the of August, 1877, the defendant caused an ^J^^^^^\ advertisement to be inserted in a newspaper called the Bailij by the Xeics offering a reward of £100 to any person who should give 'lefendant. such information as should lead to the detection of a person alleged in the said advertisement to have stolen certain property belonging to the defendant. 3. On the of September, 1877, the plaintiff gave infor- mation to the defendant which ultimately led to the apprehen- sion and conviction of the person who stole the said property. 4. All conditions were performed, things happened, and times c-lapsed necessary to entitle the plaintiff to be paid the said reward of £100. 5. The defendant has not paid the said £100. The Y^laintiff claims £100. Statement of Defeme. 1. The defendant denies the allegation in the 3rd paragraph Defence, of the statement of claim. The defendant admits that the (rt) Rescission is the putting an end to a simple contract before breach by mutual consent. The rescission may be by parol agreement, even where the Statute of Frauds requires a writing signed for the validity of the contract. An agreement by parol to vary a written contract valid under the Statute of Frauds is not valid for that purpose, and it has been held that it does not rescind the original contract. {Xolh v. ^ard, L. K. 1 Ex. 117 ; L. R. 2 Ex. \U, Ex. Ch.) . (/y) Where the defendant promised a reward to whoever would give such information as would lead to the conviction of a felon, and the l)laintiff gave the necessary information, it was held that the service rendered was a sufficient consideration for the promise, and that the plaintiff was entitled to recover the reward, although he was a constable and police officer of the district in which the felony was committed. (See Eiiqlaiid v. Darldxon, 1 1 Ad. k. E. 8.">(; ; Smith v. ^fool■c, 1 0. B. 4.^!> ; Tunu:r v. Walker, B. & S. .S71 ; L. R. 1 Q. B. G41.) A person may advertise a reward for a return of stolen property, but if he puts in his advertisement a clause to the cfEcct that no (lucstions will be asked, he exposes himself to a penalty of ^.lO, which can be recovered by any com- mon informer in an action of debt. (See the 24 & 2.j Vict. c. 'J(>, s. 10-.) How con- tracts may be re- scinded or varied. Rewards oflered for recovery of stolen property may be re- covered. But stilting that no questiiiii will 1)6 juiked ex- poses to penalty. 534 SALE OF GOODS. Defence to claim for a reward. pUiintitf gave ccrtuiu iiirormatiou respecting- one A. B., but the defendant was at the time he received such information from the phiintift' in possession of tlie same information, and much more rekting to the said A. B., and which said last-mentioned information led to his arrest and conviction, and the informa- tion given by the plaintiflF was wholly useless to the defendant. Against vendee for not accepting delivery. Uenerally contract of sale of goods need not he in writine;. B., Sale of Goods (^'). Action (tfjainsi Vendee for not acceptijig Delivery. . The plaintiffs are cotton-spinners carrying on business at in the county of L. The defendant is a manufacturer carrying on business at S., m the county of C. Exceptions to this rule, under Sta- tute of Frauds. («) The i-ule may be taken to be that an ordinary contract of sale of goods- need not be in writing ; but this rule is subject to exceptions in two classes- of cases. 1. By the 17th section of the Statute of Frauds it is provided that no sale of goods, wares, or merchandise (and by Lord Tenterden"s Act, 9 Geo. 4, c. 14, it makes no matter though they may be intended to be delivered at some future time, or may not at the time of the con- tract be actually made, or fit or ready for delivery), /i''v th- ])rice of AliV or iqm-ards, shall be good, except the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to bind the bargain or in part payment, or some note or memorandum, of the said bargain be made and signed by the parties to be charged by such contract or their agents thereunto lawfully authorised. 2. By the 4th section of the Statute of Frauds no action shall be brought to charge any person upon any contract which is not to be performed within one year from the making thereof, unless the agreement or some note thereof is in writing signed by the party to be charged or his agent. This latter section is general in its terms, and is by no means confined to the sale of goods ; in fact, it will seldom apply in such a case. It has beei*. decided that it applies only to contracts, the comiiletc performance of ■which is of necessity extended beyond the space of a year. {Sovch x, Stnm-hridgc, 2 C. B. 815 ; Kmnvlman v. Bluett, L. R. 'J Ex. 1 and 307.) Therefore a contract which can be performed on either side within a year is not within the section. {Doncllan v. Bead, 8 B. & Ad. 8!>U ;. arid see on the subject 1 Smith's Leading Cas., 7th ed., 335, notes tO' Peter V. Coiiijjfon.) Essentia] Putting out of account the few contracts of sale that might come difference -within the 4th section, the law regarding the sale of ordinary mer- in the evi- chandise, is essentially diiferent where the value of the goods sold is less denceofthe or more than £10. In the former case, the contract of sale is complete contract as soon as the parties have come to a verbal agreement. A. enters a shop ■where the and sees a watch. He asks the price, and the shopman says £7. He says goods are he will purchase, and the shopman agrees to sell it. The contract of sale- above or is then complete, and if A., the purchaser, leaves the shop without taking, below £10 with him the watch, or paying the price or any part of it, or signing any i 11 value. acknowledgment of the contract, the sale is nevertheless complete, the watch is his, remains in the shop at his risk, and he is liable to the shop- SALE OF GOODS. 535 2. On the 15th September, 1875, the plaintiffs, tlu'ough Against their agents Messrs. W. and R. K. L., of M., sold to the defen- vendee daut 50,000 lbs. of yarn of a certain quality and description at accepting delivery. keeper for its price. But suppose iu the case stated the shopman had fixed Difference the value of the watch at £13, and A. had agreed to purchase and the shop- in the evi- ruan to sell at that sum, and nothing more had taken place, but A. had dence of left the shop without the watch, -nathout paying the price or any part, the contract and without signing any memorandum of the contract — in that case where the there would have been no contract, the property in the watch would not goods are pass to A. , and he would not be liable in any action to the shopkeeper, above or 'io constitute a valid contract of sale of goods, wares, or merchandise below £10 which ai-e above the value of £10, one or more of tliree things must in value, happen. Either the purchaser or his agent must sign some memorandum of the contract, or he must pay the price or part of it, or give some earnest to bind the bargain, or the purchaser must accept and actually receive the goods. There are to be found in the books an infinite number of decisions upon what constitutes a good satisfaction of these conditions — the efEect of which can only be given here. The memorandum in it r it in //.']— The note of the contract upon which s^i^r^i the reliance is placed need not be made at the time the contract is entered memoran- into, though it must be made before action brought (Bill v. Bamcnt. 'J j^j^ mM^t M. & W. 30) ; and several documents, if suificiently connected the one contain, with the other by internal evidence, will constitute a good memorandum within the statute. {Jackgoii v. Lowe, 1 Bing. 9 ; Saundeison v. Jach- soH, ■I'&.k F. 238 ; Warner v. M'iUhujton, L. J. 25 Ch. 6(52.) The note or notes which make up the memorandum must contain all the terms of the agreement. (Kenn-orthij v. Schojield, 2 B. & C. 947.) It or they must contain the names of both the contract parties or their agents ( Williams v. Bnjiies, 1 Moo. P. C. N. S. 1.54, 198), the subject-matter of the con- tract, and the price and mode of payment if agreed upon. Where it The etlect appears by parol that the price has been agreed upon, and it is omitted of theomis- iu the note of the contract, the written memorandum is imperfect, sion of the and cannot be given in evidence. {Elmore v. Kingscote, o B. & C. 583 ; price from (iovdman v. Griffiths, 1 H. & N. 574 ; L. J. 26 Ex. 145.) But where the note, no price was really agreed upon, the contract will be good, and a reason- able price will be presumed. (Hoadley v. MeLuin, 10 Bing. 482.) It has been stated that a good memorandum within the statute can be made up of several documents, as where there is an unsigned memoran- dum containing the order, and then a letter (not necessarily addressed to the other party to the contract {(rihson v. Holland, L. K. 1 C. P. 1) Where the signed by the defendant, in which he refers to the memorandum, note is {Saiinderson v. Jackson, 2 B. & P. 238 ; Biu-toii v. Bust, L. K. 7 Ex. 1, made up 279, Ex. Ch.) And it has even been decided that where the vendee of several wrote a letter to the vendor, in which, after rrfcrrinr/ to all the essential documents. terms of the contract, he stated he had not received and declined to have the goods, because they had been damaged by the carriers, there was here a sufficient note in writing, notwithstanding the repudiation (Bailei/ v. .■^,veetinf/,'J C. B. N. S. 843; L. J. 30 C. P. 150; Wilhinson r. Brans, L, R. 1 C. P. 407) ; but the plaintitf cannot avail himself of a subseciucnt letter from the defendant, in which, though he recognises the order, he disaffirms or adds to the terms of the memorandum. {Cooper v. Smith, 15 East. 103.) ,.,... 1 I XT, ,„ « X - Ah to the signature to the note, it is enough if it is signed by the dc- As to sig- fendant {Laythoeirj, v. Bryant, 2 N. C. 735 ; and it makes no difEcrcncc nature, that there is no remedy against the party who does not sign. {AlUm V Bennett 3 Taunt. 109.) It is quite immaterial where the signature >8G SALE OF GOODS. Against Tenclee for not •accepting 1\^ SALE OF GOODS. Against vendee for not accepting ileliveiT. Vendor not gene- rally bound to deliver. But may be by agree- ment. The time of delivery is not gener- ally of tlie essence of the con- tract. When delivery by tlie vendor dispensed with. ■I. On the ITth Septembei-, 1875, the plaintiff's tlu'ough the same agents sold to the defendants other 50,000 lbs. of yarn of a certain quality and description at Ss. l^d. per lb., and Measure of damages where vendor has failed to deliver. Where the contract of sale is one within the Statute of Frauds, and the statute has not been complied with, the defendant must specially raise the defence of the statute in his statement of defence. See Order XIX. r. 23 ; Clarl' v. CaUo/r (4G L. J. 53), and anfr, p. G6. Vnulors ditfi/.]~ln all contracts of sale it is the vendor's duty to hold the goods "in readiness for delivery, but unless the contract itself provides that the vendor shall deliver, the buyer is bound to fetch the goods. (2 Kent Com. 505.) Where the contract provides that the vendor has to deliver, he is bound to do so on pain of being sued for breach of contract. Where the contract fixes the place of delivery, the vendor is not bound to deliver elsewhere, nor indeed is the vendee bound to accept elsewhere ; but if the vendor is to deliver and the contract does not specify where the delivery is to take place, he is not bound to deliver or offer to deliver till the place of delivery is notified by the vendee. {Armltagc v. ImuU, 14 Q. B. 728.) As to the time within which delivery must be made, the rule is that time is not generally of the essence of a contract for the sale of goods, unless expressly made so by the contract {MartindaJe v. Smith, 1 Q. B. 839; CodiVnujton v. I'aliohujo, L. R. 2 Ex. 193) : but in several cases it has been held to be. (See Parlier v. Ban-Uwjs, 4 Bing. 280; Wim.ihurst v. Deeloj, 2 C. B.253.) Sometimes the necessity of delivery or further delivery by the vendor is dispensed with by reason of the vendee's refusal to accept, or decla- ration that he vdll not accept. In such a case it is said that the true question is whether the act or conduct of the party evinces an inten- tion no longer to be bound by the contract. (Frccth v. Burr, L. E. i> C. 1'. 208.) It has been held, however, that where goods are to be delivered by the defendant to the plaintiff in twelve equal monthly parcels, the refusal of the plaintiff to accept the first parcel does not exonerate the defendant from delivering the remaining i)arcels {Simjmm v. Crijipin, L. R. 8 Q. B. 14) ; so when the delivery was to be by two equal parcels, the defendant was held not to be released from the delivery of the second parcel by reason that the plaintiff had refused to pay for the first in accordance with the contract. {Fircth v. Btirr, ante.) Where goods are to be delivered at a future day, the damages for breach of contract are the difference between the contract price and the market price of the goods on the day when they ought to have been delivered, (Galnsford v. Carroll, 2 B. & C. 624; Valpij v. OaMry, Kj Q. B. 941 : L. J. 20 Q. B. 380.) If no difference is proved between the contract and market prices, the damages must be nominal, {f'tlj))/ v. Oaldnj, .wjrra.) A¥hen the price has been paid, the measure of damages is the market price without deducting the contract price ; and the same is the rule- where the payment is by bills which are outstanding. {Ibid.) If the buyer, at the request of the seller, forbears to enforce the contract at the time the goods ought to be delivered, but afterwards does so, the measure of damages is the difference between the contract price and the market price when the buyer so enforces the contract, ■/. r., by buying- the goods in the market. {Ot/lr v. Viinc, L. R. 2 Q. B. 275'; aff". L. R. S Q. B. 272. See also Ti/nc v. 'Eomhde, ^)V., Iron Co., L. R. 8 Ex. 305.) If a ship is ordered to be made, or is left for repair, and not de- livered at the agreed time, the measure of damage is ^7r/?«a/ff. y'^ Armstrong. L. R. !) Q. B. 473; Vicars v. WiUcocJts, 2 Sm. Lead. Gas., 7th ed.. .")84, and notes ; Mayne on Damages, -ith edition. Butij of the render to accept (lelirer)/.]—U the purchaser refuse to accept delivei-y of the goods when made according to the terms of the contract, he is liable in an action for damages. In order to charge the purchaser where a tender of the goods is necessary, it must be made at a reasonable time and place, and be such as to afford him opportunity of examining and receiving the goods. Thus, a tender of articles in a closed cask so as to prevent inspection, or at the defendant's warehouse at a late horn- after it is shut up, will not be good, though in the latter case, if the defendant happens to be there, and is able to examine and receive them, it will not be bad merely on account of the lateness of the hour. (IsJienvofld v. Whitmere, 10 M. & W. 757 ; Startiij) v. Mucdonald, (j M. &; Gr. 51)3.) The tender must not be of a larger quantity than was bought. Thus, if the buyer give a limited order for certain specified goods, and the seller sends these and others from a distant place in one package charged at a lump sum, the consignee may refuse the whole. {Levy v. ^Green, 8 E. & B. 575 ; L. J. 27 Q. B. Ill ; aft". Ex. Ch. 1 E. & E. t)69 ; L. J. 28 Q. B. 319.) Equally where a joint order is given for several articles the contract is entire, and the purchaser may refuse to accept one unless the others are delivered. {Champion v. Short, 1 Camp. 53.) Where the defendant instructed the plaintiff to buy for him 500 tons of sugar, '• 50 tons more or less of no moment if you are enabled to get a suitable vessel," and the plaintiff bought 400 tons, it was held that the defendant was not bound to accept the 400 tons. {Ireland v. Licing.'iton, L. R. 5 Q. B. 516, Ex. Ch.) Where goods are sold at " about " a certain quantity, " more or less,"' the latter words are intended to provide for only a small excess. (Cross \.Eglin,2 B. & Ad. IOC, ; JIardonald v. Lonqbottom, 1 E. & E. ;)77 ; L. J. 28 Q. B. 2!(3, and also 2!) Q. B. 250.) When time is of the essence of the contract, which, in tlie absence of special agreement to that effect, is seldom the case, the defendant need not accept delivery of goods tendered after the time. (See Hoare V. llrnnie, 5 H. & N. 19 ; L. J. 29 Ex. 73 ; Coddington v. PaJeologo, L. R. 2 Ex. 193.) The general rule, however, is that a partial l)reach by the plaintiff of his contract to deliver does not justify the defendant in after- wards refusing to accejit [Jona.^sohn v. Young, 4 B. & S. 29(j ; L. J. 32 Q. B. 385 ; Simpson, v. Crippin, L. R. 8 Q. B. 14); but where the sale is by sample, and the bulk tendered docs not correspond with the sample, the purchaser need not accept ( Jleilbiitt v. Ilichson, L. R. 7 C. P. 438, 451 ) ; and so where the sale is aii executory one of sometlnng not in existence at the time, and to be made, the purcliascr may refuse to receive, nr evei- afterwards return it if it does not correspond with the description of article ordered. Frequently a tender is ncjt necessary, as where nothing was said on the subject in the contract. It is then the i)urchaser's duty to take away the goods, and it is enough that the vendor is ready and willing to (leliver to him when reciuired. Again, if the defendant notifies his intention to refuse, and forbids the plaintiff to deliver goods ordered to be made, then the j^laintiff need not proceed to complete the contract on his part, and may show this under an alleged refusal to accept, although the goods are not ready for delivery, and could Purchaser bound to accept delivery. What tender of the goods is sufficient. If tender of a larger quantity purchaser may refuse the lot. So where a less quan- tity ten- dered. Partial breach of contract to deliver does not generally justify a refusal to receive. When it is. the pur- chaser's duty to take away the goods. 540 SALE OF GOODS. Against vendee for not accepting delivery. tlic said sale on various dates "accordiiij,^ to the defendant's in- structions, amounting in all to 19,2!)()^lbs., and the same were duly accepted and paid lor liy the defendant. C). On the r)tli April, ]87(), l(;,198Mbs. of tlic yarn sold on the loth September, 187'), and 30,705|lbs of the yarn sold on the 17th Sei)tcmber, 1875, remained undelivered by the ])laintifPs to the defendant. 7. On the same date, namely the 5th April, 1875, a fire occurred at the defendant's mill, and the defendant then requested the plaintiffs to delay for an unspecified time making deliveries of the residue of the yarn, and to hold the same on his account. 8. The plaintiffs accordingly waited for a considerable period, and held the residue of the yarn on account of the defendant, and then on the 22nd August, 1877, gave notice to the defendant that they required him to take deliveiy of such residue, and that they would sell the same against him if he did not do so. 9. The plaintiffs were then and at all times had been ready and willing to make deliveries of the residue of the yarn in accordance with the terms of the said sales, but the defendant neglected and refused to accept delivery of such residue as aforesaid. 10. The plairitiff's thereby lost the profits which they would have made upon the said yarn, and were for a long time com- lielled to store and insure the same at great expense, and also lost the price which they would have received from the defendant for the same, and also interest thereon, and were otherwise damnified. Effect of a sale ' ' o aiTival" or "to not be delivered, for the plaintiff is thereby discharged from proceed- ing further. (^Corf v. Anibcrf/titc Hail. Co., 17 Q. B. 127, 14-t ; L.J. '20 Q. B. 460.) A sale of goods "on arrival," or " to arrive," in a par- ticular ship is a coutract for a sale of goods at a future jjcriod, subject to the double condition of the arrival of the ship and the goods being on board ; but it is not a warranty by the seller that the goods will arrive {Boijd v. SiffMn, 2 Cam]). 32(1 ; Smith v. Myers, L. R. 5 Q. B. 429 ; aff. L. E. 7 Q. B. 139) ; but where the contract is for the sale of goods " now on passage and expected to arrive by," or " to be delivered on the safe arrival of," a certain ship, it is conditional on the arrival of the ship only. {Gorix.^rn v. Pen-in, 2 C. B. N. S. G81 ; L. J. 27 C. P. 29 ; JIalc V. Itan-mn, 4 C. B. N. S. 85 ; L. J. 27 C. P. 189.) SALE OF GOODS. 541 11. Alternatively the plaintiifs state as follows: — Tlic The claim orioinal contracts for sale in the 2ncl and 4th i)arao-raphs pi^* ^^tev- o 1 o 1 natively. mentioned, and also the substituted contracts hereinafter men- tioned, were from time to time by mutual consent rescinded, and other contracts substituted in lieu thereof for the residue of the yarn then undelivered under the said contracts of sale and such substituted contracts respectively. And on the 5th April, 1876, the defendant was under such substituted contracts bound to accept delivery from the i^laintiflfs upon certain dates, wdiich expired before the 22nd August, 1876, of the quantities of yarn mentioned in the 6th paragraph. 12. The plaintiffs then withheld delivery of the same at the request of the defendant, in accordance with the facts stated in the 7th and 8th paragi'aphs, and the defendant neglected and refttsed to accept delivery, although the plaintiff's were always ready and wilhng to deliver the same, and the plaintiff's were thereby damnified as stated in the 0th and 10th para- graphs. The plaintiff's claim as damages £2,000. Statement of Defence and Counlrr-rlaim. 1. The contract in the 2nd paragraph of the statement of Defence. claim mentioned was made on the 15th of September, 1875, and thereby the defendant agreed to purchase fi"om the plaintiff's, through the plaintiff's' agents, Messrs. W. & R. K. L., 50,000lbs. of " eighties " twist coml)ed at 2s. hd. per lb., the delivery to be at the rate of 8 ships per week, 2. The contract in the 4th paragTaph of the statement of claim mentioned was made on the 17th of September, 1875, and tlicreby the defendant through the same agents agi-eed to pur- chase from the plaintiff's 50,000 lbs. of hundreds twist combed at 3.9. l\d. per lb., to 1)e delivered at the rate of 6 or 7 ships per week. ?). The rates of delivery of the said yarns were as the i)laintiff's well knew most important tenns, and were of the essence of the said contracts ; and the defendant in his l)usincss arrangements relied upon the deliveries l)eing made as stij)ulated. At the rates mentioned in the said contracts the deliveiy of the eighties twist combed would have been complet<.'d by the 1 Ith of .542 SALE OF GOODS. Defence to claim against veil' dec for not aoeepting ileliverv. Counter- claim. February, and of the liundreds twist combed by the 30th of March, 187 G. 4. The plaiutili's altogether failed to deliver the said yarns in accordance with the said contracts, nor did they make deliveries according to the defendant's instructions ; on the contrary, the deliveries on the part of the plaintiffs were so irregular both in j)oint of time and quantity that by the .5th of April, 1876, only ?>3,801jlbs. of the eighties had been delivered, and ]0,294ilbs. of the hundreds. f). The defendant denies the allegation contained in para- gTajjli 7 of the plaintiffs' statement of claim, that he requested the plaintiffs to delay the delivery of the residue of the yarn ihv an unspecified time. 0. The plaintiff's were not willing nor ready to make deliveries of the residue of the said yarns in accordance with the terms of the said sales. On the contraiy, the plaintiffs failed to make such deliveries, notwithstanding numerous complaints made l)y the defendant, and notice by him to the plaintiffs that their default in delivery compelled the defendant to make jDurchases elsewhere. 7. The defendant denies that there were any such substituted contracts as stated in the 11th paragraph of the statement of claim. It is not the fact that the defendant was under such alleged substituted contract bound to accept deliveiy from the plaintiffs upon certain dates which expired before the 22nd of August, IS 76, or at all of any quantities of yarn whatever. 8. The defendant denies that the plaintiffs withheld delivery at the defendant's request, as alleged in the 12th paragraph of the statement of claim. And by way of counter-claim — 1. The defendant repeats the statements contained in the 1st, 2nd, 3rd, 4th, and 6 th paragraphs of the above state- ment of defence. 2. Owing to the iiTegidarities in delivery, and the deficiencies in quantity of the yarn supplied by the plaintiff's, the defendant sustained great loss, as it prevented his mill from fully working. 3. Moreover, the defendant was by the plaintiffs' said defaults compelled, as the plaintiff's knew, to purchase and did purchase large amounts of cotton yarn fr-om other spinners in order to keep his machinery and hands employed. SALE OF GOODS. 54 4. The yam as supplied by the phiiiitiffs was of such inferior Against quahty, and so irregular in length, that the thread made from it J'^«^;"^^° was unmarketable, and serious loss has thereby accrued to the accepting defendant. ''^^^^^■■^• The defendant claims by way of set-olf and counter-claim Counter- ^ claim. £1500 damages. Repl// and Defence to Coiinter-daim. 1. The plaintiffs join issue with the defendant upon the 3rd, Reply. 4th, 5th, Gth, 7th, and 8th paragraphs of his statement of defence, except in so far as the same admit the case of the plaintiffs. 2. As to both defence and counter-claim, the plaintiffs state that if they did not deliver the said yarns or any of them according to the terms of their said contracts, but they withheld delivery at the request of the defendant. 3. Alternatively the plaintiffs fm-ther state that if they did commit any breaches of the said contracts in respect of the delivery of the said yarns, the same, with knowledge of the premises, Avere waived l)y the defendant. 4. The plaintiffs do not admit that the defendant sustained the losses mentioned in the 2nd and 3rd paragraphs of the counter-claim, or that if such losses were sustained the same arose through any default of the plaintiffs. 5. The yarn su])plied by the plaintiffs was not of inferior quality or irreguhn- in length, nor did the defendant sustain any loss thereby. C. If any yarn so supplied was inferior or irregular as afore- said, the defendant, with knowledge of the premises, waived any claim or right of action in respect thereof. 7. The plaintiffs deny the facts stated in the residue of the counter-claim, except in so far as they are hereinbefore admitted. Rejoinder. The defendant joins issue u]ion the plaintiffs' reply and Rejoinder. defence to counter-claim. 544 SALE OF GOODS. Anotlicr tlaim against ven- dee for not accepting delivery. Action againxt Vendee for not accejMng Deliver^/. 1. The plaintilt" is a wholesale oil merchant carrying on busi- ness at No. • — , Street, in the city of London, and the defendant is a retail oilman carrying on his business at No. — , Street, in the said city. 2. On the 1st of Januaiy, 1877, the plaintiff sold to the defendant tons of oil at £30, on the terms that half of the said oil should be delivered to the defendant on the 15th of January aforesaid, and the other half on the 1 st of February, 1877, and that the defendant should accept such deliveries and should pay for the quantities so agreed to be delivered on the foregoing dates respectively, on delivery of each as aforesaid, after deducting £1 10s. per cent, discount. 3. The plaintiff on the said 15th of January tendered half of the said oil for delivery to the defendant, but the defendant refused to accept such delivery. 4. The defendant before the said 1st of February wrote to' the plaintiff informing him that he would not accept delivery of the other half of the said oil. 5. The plaintiff on the 18th of March, 1877, sold the said oil to another person at £25 per ton, which was the highest price he could procure. The plaintiff claims £470 damages. Against vendee for not accepting, and for charges in- cident to the transit. Action for not acccptiny Goods and for Freif/hf and Denmrrage incurred in their Transit and Delivery. 1. The plahitiff is a merchant in London. The defendants are a joint-stock company with their head office at S. 2. On or about the 6th of May, 1875, the defendants con- tracted to buy fi-om the plaintiff" about 300 tons of old double- headed iron rails off the S. E. Ry., at the price of £4 lis. per ton, to be delivered by the plaintiff alongside the S. Rail Mill Co.'s wharf at S., to be shipped by the plaintiff as fast as suitable freight could be obtained, payment to be in net cash on de- livery of each cargo, railway company's weight to be given and taken. 3. The plaintiff subsequently shipped under the said contract 130 tons of the said rails by the " William," which anived at SALE OF GOODS. 545 S., on or about the 29th of June, 1875, with the same on Claim for board, and the plaintiff was ready to deliver the goods to the Hll deliverv defendants, and did all things on his part to be done to entitle and for him to have the goods accepted and paid for according to the chaUe^ ^ said contract, but the defendants refused to take delivery of or to pay for the goods. 4. The plaintiff also in accordance with the said contract shipped the -remainder of the said rails, amounting to 170 tons, by the " ^Margaret," and was at all times ready and wiUing to perfonn the said contract, but the defendants refused to take delivery of the said last-mentioned goods or to pay for the same, and repudiated the said contract, and \M-ongfully and improperly exonerated and discharged the plaintiff from per- forming the said contract. 5. In consequence of the said breaches by the defendants of their contract, the plaintiff was compelled to resell the whole of the said goods at a loss of £100 15s. G. The plaintiff also by reason of the defendants' breach of the said contract and refusal to take delivery of the goods, became liable to pay and has paid to the master of the " "William " the sum of £43 for demuiTage of the said vessel at 8., and for towage. 7. The defendants have been furnished with particulars of the plaintiff's claim. The plaintiff claims £2o0 damages. Action for refusuui to accrpt Goods and not ■•i}>bmittinf/ Dispute to Arbitration as agreed. 1. The plaintiffs are rice millers carrying on business at Claim for Lane, in the city of London. ' not accept- ' •' ing deli- 2. The defendants are merchants carrying on business at very, and Street, in the city of London. '■^J^''"^ *° ' •'- _ _ refer to ;5. On October 4th, 1875, the plaintiffs by their brokers arbitration, ^lessrs. F. & Co. agreed to sell to the defendants, and the defendants agreed to buy and accept fi-om the plaintiffs, 500 bags of cleaned l)roken rice or "smalls" as per sample, at 8.. The plaintiff' has always been ready and willing to carry out and complete the said contract, and a reasonable time for the completion thereof elapsed before this action. G. The defendant has omitted and refused to send bags for packiiig the remainder of the said bark, and the defendant has absolutely refused to accept the remainder of the said bark or to carry out or complete the said contract, or any longer to be bound thereby. 7. By means of the premises the plaintiff has not only lost the benefit of the said bargain and the price of the said goods so delivered, but has been put to considerable expenses in preserv- ing the said bark from the weather, and in taking care of the same, and in erecting huts for the purpose of chopping the same. The })laintiff claims : — (1.) £85, the price of the bark received by the defendant. (2.) £200 damages for the defendant's breach of his con- tract to receive tiie residue. N N 2 r)4s SALE OF GOODS. Claim for balance of an account for goods sold and work done to them. Defence of frand. Arl/o/t for Balance of Arcoioif for Gooilx sold and Charfjcs for cprlain Worlc done in ronneclion irdh them. 1. In the years 1874, 1875, 1870, and 1877, the plaintiff sold and delivered to the defendant varions pictures, engravings, carvings, and books at agreed prices. The plaintiff also during the same periods did work and incurred expenses for the defendant in and about the transport and carriage, and the cleaning, varnishing, framing, furnishing, and hanging the said pictm-es. Full accounts of the above have from time to time been rendered by the plaintiff to the defendant, and the defendant from time to time made payments on account to the plaintiff. 2. On the 21st July, 1877, a balance remained due to the plaintiff of £581 15s. Qd., and the defendant then gave the plaintiff a bill of exchange at six months from the said date (which has not yet expired) for £231 15s. Gr?., and promised to pay the remaining £300 to the plaintiff on the 5th of August then next ensuing. 3. On the 14th of August, 1877, the defendant paid to the plaintiff £50, part of the said £300, but the remaining £250 is. still unpaid. The plaintiff claims £250, and interest thereon until payment. Statement of Defence. 1. The defendant says that he was induced to purchase the said pictures, engravings, and carvings at agreed prices by the fraud of the plaintiff, who falsely and fraudulently repre- sented to the defendant that divers of the same were original paintings by certain eminent masters, and were of a high value, and that the prices charged by the plaintiff to the defendant for the same were considerably below their value. 2. The said pictures were not original paintings by eminent masters and of high value as represented, and the prices charged were not below but were considerably above their value, as the plaintiff at the time of making the said representations well knew. 3. The said pictures, engravings, and carvings were of no value to the defendant, and upon discovering their worthless character he at once returned them to the plaintiff. 4. The defendant denies, as alleged in the 2nd paragraph of the statement of claim, that he promised to pay the plaintiff SALE OF GOODS. 541) £300 or any other sum on the 5th of August, or at any other iinie. Action for the Price of Goods sold and delivered. 1. The plaintiff is a ship broker carrying on business at , Claim for^ in the city of London. and dcii- 2. The defendants are the G. E. Rail. Co., whose offices are at vered. L. Street in the said city. 3. In the month of February, 1877, the plaintiff sold and delivered to the defendants, and they Ijought and received from him, a quantity of ice, and the plaintiff in connection therewith made certain disbursements on the defendants' behalf at then- request. The full particulars of the plaintiff's claim are in- dorsed on the writ of summons herein. 4. AU conditions were fulfilled, all things happened, and all times elapsed to entitle the plaintiff to be paid the amount of his claim, yet the defendants have not paid the plaintiff the same or any part thereof. The plaintiff" clauns £220. Stafermnt of Defence and Counter-claim. Tiie defendants admit the plaintiff is entitled to credit in account for the sum of £220 for ice supplied as per particu- Uirs indorsed on the writ, subject however to the set-off" and counter-claim hereinafter referred to. And by way of set-off and counter-claim the defendants say : ^oimtcr- ] . That the said ice in the said indorsement mentioned, in ^^J^^j^ ^^ respect of which the said sum of £220 is admitted to be due, plaintiff to was supplied ])y the plaintiff to the defendants under a certain Jel^^ver in written contract, whereby it was among other things provided ^ij„c_ that the plaintiff should sell to the defendants 250 tons of fresh water ice delivered at (I. between the 30th of January and tlie 1 0th Fcbruaiy, 1877, at the price of per ton, and it was by the said contract provided that in default of the ice being supplied according to the tei-ms of the said contract, the defendants should be at liberty to prociu-e the quantity contracted i"or else- where, and to charge the excess of price, if any, to the plaintifl, and that the plaintiff should pay the same to the defendants on demand, oi- allow the same to be set off against any money due to the plaintiff under the said contract. 2. The plaintiff did not supi)ly the said ice in accordance 550 SALE OF GOODS. Counter- claim to action for price of goods sokl and deli- vered. Reply. with tlie terms of the said contract, but failed so to do, and only su|)])lied a part thereof, that is to say about G5 tons, and the defendants were compelled to procure and did procure the residue thereof^ that is to say, 185 tons, at an excess of price, amounting in all to the sum of £189, and the said sum of £181> became due and owing from the plaintiff to the defendants in accordance with the conditions of the said contract. ?). In the alternative the defendants will claim the said amount of <£189, as damages for the breach by the plaintiff of the said contract made with the defendants for the supply of ice. 4. On a true statement of account between the plaintiff and the defendants there is due from the defendants to the plaintiff a balance of £33, which sum the defendants bring into Com't, and say that the same is sufficient to satisfy the plaintiff's claim herein. Eephj. 1. The plaintiff joins issue on the defendants' statement of defence, save so far as any allegations in the statement of claim are admitted thereby. 2. As to the allegations in paragraph 2 of the counter-claim, the plaintiff admits that he did not deliver the s'aid 185 tons^ of ice pursuant to the said agreement, but his failure to do so was only a failure in point of time, as he completed the delivery of the whole of the said 185 tons after the said time, and the defendants with full knowledge of all the facts accepted the same, and waived the stipulation with regard to time in the said agreement. Claim for price of goods sold. Action for Goods sold suhjecl to Ap2)roval of Defendant. 1. The plaintiff' is a , &c. The defendant is, &c. 2. On the 8th of August, 187G, the plaintiff sold to the defendant, and the defendant ])ought of the plaintiff", hogsheads of sugar, at £ per hogshead, and on the follow- ing terms as to delivery of and payment for the same, viz., that the plaintiff" should deliver the said goods within one week from the said 8th of August, and that if the defendant did not within three days fi-om such delivery disapprove thereof, he should be held to have approved of them, and should in that case pay in ready money for the same on the day on which he should be so held to have approved of the same ; but if he should within the time aforesaid, viz., within three days from delivery, disapprove SALE OF GOODS. 55X of such goods, ho should within a reasonable time redeliver the Claim for same to the plaintifi'. ..qIh^^ °q1j_ 3. The plaintiff delivered the said goods to the defendant within a week fi-om the said 8th of August. 4. The defendant did not disapprove of the said goods within three days of such delivery, nor has he within a reasonable time or at all redelivered the same to the plaintiff. r». The defendant has not paid for the said goods. The plaintiff claims £117-4, the price of the said goods. Defence io Action for Price of Boiler, Ihat it was not fit for Purpose for which Ptaintiff knew it tvas intended, and Counter-claim on Warranty. 1 . The boiler for the price of which this action is brought -A- state- was supplied by the plaintiff to the defendants for the purpose, defence as the plaintiff well knew, of generating and supplying steam to setting out an engine used by the defendants in the working of their ^q\^\ ^-ei-e colliery, and was represented by the plaintiff to be capable of worthless, working up to a i)ressurc of 100 lbs. 2. The said boiler was not reasonably fit or proper for the purpose in the 1st paragraph mentioned, but was of insufficient strength, and was of defective and improper make and construc- tion, and was not capable of working up to a pressure of 100 lbs., and in consequence thereof, soon after it was supplied to the defendants, and whilst it was being used in endeavouring to carry out the said purpose in the 1st paragraph mentioned, the said boiler exploded and became and was utterly worthless ; and the consideration for the price of the said boiler totally failed. By way of set off and counter-claim the defendants say as follows : — ?,. The plaintiff by warranting the boiler to be reasonably fit Counter- and proper to be used for the purpose mentioned in the 1st '^^""' paragraph of the statement of defence, and by representing that the said boiler Avas capable of working up to a ])ressure of 100 lbs., sold the same to the defendants to be used for the pur- pose afijrcsaid. 4. The defendants repeat tlie allegations contained in the 2nd paragraph of the statement of defence, and say that the said explosion of the said boiler damaged their premises, works, and machinor}', and they have been put to expense in repairs and 5o2 SALE OF GOODS. Counter- claim to action for price of ffoods sold. Reply. otherwise, and for many days were jirevented from and delayed ill working the said colhery, and lost the profits thereof during that period. The defendants claim : — (1.) £200 damages in respect of the matters stated in this set-oSf and counter-claim. (2.) If the defendants should be held liable for the price of the said boiler, then they claim £150 for the ])lai]ititf's breach of w'arranty. Rpphj. 1. The plaintiff joins issue with the defendants upon their statement of defence. 2. As to the defendants' set-off and counter-claim the plaiii- tifiF denies that he made any such warranty or representation as is alleged in the 3rd paragrapli of the defendants' statement of defence and counter-claim, or that he sold the said boiler to be used for the purpose therein alleged. The plaintiff' does not admit the 4th paragraph of the defence and counter-claim. Defence of an unex- pired credit Statement of Defence to specialhj indorse d Writ for Goods sold and delivered, that the Goods ivere sold on an unexpired Credit. 1. The defendant admits that he did purchase certain goods of the plaintiff as indorsed on the ^\r\i. He also admits that, to claim for subject to the allegation in the ord paragraph of this statement ^oocfs° of defence, the price of the said goods when due would be £80. 2. The defendant says that he is not now indebted to the plaintiff' in any sum whatever, because, w^hen the said goods were sold to him, they were sold on the terms that they were not to be paid for till the defendant's pay-day in the month of April, 1878, that is to say, on the 8th day of April, 1878, and the defendant further says that the said day arrived at the com- mencement of this action. 3. The defendant also says that the said goods were sold on the terms that if the defendant should pay for the same on and not later than the said 8th day of April, 1878, he should be allowed a discount of £2 10s. per cent, on the said smii of £8G. Wherefore the defendant says that until after that day, the sum, if any, due from the defendant to the plaintiff' would be £84, and not £8G. SALE OF GOODS. 553 Action against Seller for not deUvering. 1. The plaintiff is a baker canyiiig on business at . Claim Tlie defendant is a miller carrying on business at . vfmiov for 2. The plaintiff and defendant for several months previously not deliver- to September, 187G, had business transactions together in the ^^"1^^"^^ way of their trade, and in the month of September, 1876, a contract. contract was entered into between the plaintiff and the de- fendant by con-espondence and entries in contract books, according to the custom of the trade between millers and bakers, whereby it was agreed between the plaintiff and the defendant that the defendant would supply to the plaintiff, when and as required by the latter, 100 sacks of flour, known as , at the price of 54.v. per sack, upon the same terms as they had hitherto transacted business, and the defendant, at the request of the plaintiff, from time to time made and sup- plied to the plaintiff, under and pursuant to the said contract, ?>b sacks of the said flour, and the plaintiff' paid for the same upon the terms aforesaid. 3. In or about the month of January, 1877, the plaintiff' required the defendant to deliver the remainder of the said 1 00 sacks of flour, or so much thereof as he could then deliver, which the defendant refused to. do, and the plaintiff again and subsequently thereto required the defendant to deliver the remainder of tlie said 100 sacks of flom-, and offered to and tendered him the money fbi- the same at the contract price, and required the defendant to forthwith deliver the same, but the defendant refused to deliver the same. 4. In consequence of the premises, the plaintitt' was obliged, to enable him to carry on his business, to jrarchase other flour in lieu thereof at much higher prices, and also incurred ex- 2)enses in travelling and otherwise in seeking for, obtaining, and purchasing other flour from various otiier millers at such in- creased prices, and was otherwise injured and damnified by )-eason of the defendant's non-fulfilment of his said contract. The plaintiff chiims £100 damages. Slaterncnt of Defence. 1. The defendant denies that he made with the plaintiff the Defence, contract set out in the 2nd paragraph of the statement of chiim, or any other contract. 554 SALE OF GOODS. Defence to claim for not deliver- ing. Statute of Frauds. Recission l)V consent. 1'. The defenduiit will also, il" iiecessaiy, contend that the said contract, if made (which he denies), is not binding in law, because not evidenced l)y writing as required by the Statute of Frauds. 3. After the making of the alleged contract, and })efore any breach thereof, it was agreed by and between the plaintiff and the defendant that the said contract should be waived, aban- doned and rescinded, and they then waived, abandoned, and rescinded the same accordingly. 4. The plaintiff" did not require delivery within a reasonable time after the making of the said alleged contract of the said flour, the non-delivery of which is complained of. 5. The defendant denies the allegations contained in the 4th paragraph of the statement of claim. Another claim for non- delivery. Defence. Anotlier Form of Statemeni for not (lelivermg. 1. The defendant bargained and sold to the plaintiff, and the plaintiff" bought from the defendant, 600 quarters of split beans at 'lis. 9d. per quarter, to be delivered by the defendant to the plaintiff, and to be paid for l)y tlie plaintiff's acceptance at two months. 2. The plaintiff j^aid for the said goods by his acceptance, and all conditions were performed and all things happened and all times elapsed to entitle the plaintiff" to the delivery of the said goods as aforesaid. 3. The defendant did not deliver the said goods to the plaintiff'. 4. By reason thereof the plaintiff has been deprived of the said goods and their value, and of tlie profits which would have accrued to him from the delivery of the same. The plaintiff" claims : — Statement of Defence. 1. The defendant does not admit that the terms of the con- tract between the plaintiff" and the defendant are correctly stated in the 1st paragraph of the statement of claim. 2. The defendant says tliat it was agreed by and between the plaintiff' and the defendant, that the plaintiff" should pur- chase and accept from the defendant, and that the defendant should sell and deliver to the plaintiff^, about GOO quarters of SALE OF GOODS. 555 sjilit beans, then Ivina; at the warehouse of Messrs. V. at D , Defence to at the price of 22s. dd. a quarter, and that delivery of the said ^^^^ °' beans should be made by handing to the plaintiff delivery- delivery of orders on the said j\Iessrs. V. for the said beans in return for ^°° ^' the plaintiff's acceptance for the price of the same. ?). The defendant accordingly handed to the plaintiff deli- very-orders on the said ]\Iessrs. Y. for the said beans in return for the plaintiff"s acceptance for the price thereof, and all things were done and performed by the defendant on his part to enable the plaintiff' to obtain delivery of the said beans from the said Messrs. V., and the defendant in all respects performed his contract with the plaintiff" with respect to the said beans. 4. In answer to the 2nd and 3rd paragraphs of the statement of claim, the defendant says that he delivered the said beans to the plaintiff according to the true intent and meaning of his contract in that behalf. If the plaintiff' has failed to obtain possession of the said beans, the defendant says that such failure was caused by the default and neglect of the plaintiff', and by causes for which the defendant is in no respect liable to the plaintiff'. 5. The defendant denies that the plaintiff has been deprived of the said goods, or any of them, or that he has suffered the losses, or any of them, alleged in the 4th paragraph of the plaintiflTs statement of claim. Claim vpo/i Contracts of Sale whicli ivcrc raried lefore Breach. 1. On or about the H!th day of May, 187(1, an agreement Claim hikui was made and entered into between the phiintiffs and the de- <'^"ti;^'^t« 01 S'XlG fendants, whereby the plaintiH's agreed to manufacture and sell varied and deliver to the defendants, and the defendants agreed to !"^^°''f , . ° breach. buy, receive, and pay for certain iron bars mentioned and sj)eci- fied in a certain bought note signed by the defendants, and by them delivered to the plaintiff's upon the terms therein men- tioned, which said bought note was and is in the words ;uul figures following, that is to say. \^lln-(' fotloivs the Imiijhl note.] 2. 'J'he plaiiitiil's and the defendants acted upon the said contract, and in pursuance of the said contract, the plaintiffs sold and delivered to the defendants, and the defendants o56 SALE OF GOODS. Claim upon uccoptfd iiiid rccei\tjd, the said iron bars mentioned in the said contracts , , , bouti'ht note. of sale varied before breach. S. On or about the i'7th of May, 187G, an agreement was made and entered into between the plaintiffs and tJie defendants whereby the i)laintiffs agreed to manufacture and sell and deliver to the defendants, and the defendants agreed to buy, receive, and pay for certain iron bars mentioned and specified in a certain bought note signed by the defendants, and by them delivered to the plaintiffs, upon the terms therein mentioned, which said bought note was and is in the words and figures following, that is to say. [Here follo/cs the hovijld note.] 4. After the making of the last-mentioned contract, and before breach thereof, it was agreed betw^een the plaintifiFs and the defendants that the said contract should be varied in this — Firstly, that instead of the delivery of the said iron bars being made at Hull, as in the said contract mentioned, the delivery thereof should be made at the works of the plaintiffs, and that the difference in the price of the carriage thereof, viz., Gs. Sd. a ton, should be allowed by the plaintiffs in account with the defendants ; and in this — Secondly, that the time for such delivery should be the 11th day of July, 187G, and not the date in that behalf mentioned m the said original contract, after the making of the said original contract, and after tin; same had been varied as aforesaid. 5. The said contract was, on or about the tith day of July, 1876, fiu'ther varied by a letter written and handed by tlic plaintiffs to the defendants, which letter w^as and is in the words and figures following, that is to say. [Here follows the letter, ichich contained numerous terms vari/in SALE OF LAND. Agninst for iion- oonipletion of roiitvact. tlic said ])iirchase-money on the 8th of October, 1877, the date agreed on in the said contract for completing the same ; and it Avas further agreed that the plaintiff should deduce a good title to the said land and dwelling-house on or before the 1st day of October aforesaid, and on payment of the said balance or remainder of the said purchase-money as aforesaid, should execute a proper and valid conveyance of the said premises to the defendant. 3. All conditions were fulfilled and all things happened and all times elapsed necessary to entitle the plaintiflF to a perform- ance of the said agreement by the defendant on his part. 4. The defendant has not paid the said balance or remainder ol" tiie said purchase-money, and has refused to complete the said contract. 5. The plaintiff has by reason of the defendant's default to l)evform his contract as in the last paragraph mentioned lost the benefit of the expenses incurred by him in preparing to perform the said contract. 0. After the making of the said contract and before the said In-each the guardians of the poor for the parish of Ullathorne aforesaid duly resolved on erecting, and did erect, a hospital for pauper patients suffering from fever and other infectious dis- eases, in the close neighbourhood of the said land, whereby the same became very much deteriorated in value. The plaintiff claims : — (1.) £215 on account of the said expenses. (2.) £2000 on account of the said depreciation in the value of the said land and dwelling-house. Claim against vendee of mill and plant for not com- pleting. Acfion bjj Vendor of Mill and Plant and of Dwellinfj-hovse against Vendee for noi appointing Valuer to value and not compleiinfj. 1. At the time of the making of the contract hereinafter set forth, the plaintiff was and still is the owner of the Tees Mill at B., in the county of D., and of the machinery therein, and of the other property mentioned in the said contract. 2. On or about the 5th December, 1876, it was {inter alia) agreed by and between the plaintiff and the defendant that the plaintiff should sell and the defendant should purchase the Tees SALE OF LAND. 5(5X Mill aforesaid, and that the price to be paid by the defendant for Claim the same should bo fixed by two valuers, one Mr. J. B. acting puVcllser on behalf of the plaintiff, and the other Mr. C. M. acting on for noii-_ behalf of the defendant. 0^^0011-°^ 3. All conditions were fulfilled necessary to entitle the plain- tract of tiff to have the said contract performed by the defendant and to sue for the breaches hereinafter alleged. 4. The plaintiff duly instructed and requested his valuer mentioned in the said contract to proceed with the valuation of the said mill and other property, and requested the defen- dant similarly to instruct and request his said valuer to value on his the defendant's behalf, but the defendant neglected and refused and still neglects and refuses to instruct, request, or permit his said valuer to value the said mill and other pro- perty, and has thereby prevented and still prevents any valua- tion of the said property fi-om being made. 5. By reason of the defendant's said breach of contract the sale of the said mill and property has failed to take effect, and the plaintiff* has been and is still deprived of the purchase-money which ought to have been paid according to the terms of the said contract. The plaintiff* has been unable since the defen- dant's said breach of contract to find a purchaser for the said mill and property, and will be unable to sell the same otherwise than by pulilic auction. The amount which could or can be obtained for the said mill and property if so sold is much less than the amount at which the same would have been reasonably and fairly valued as between the plaintiff and the defendant under the terms of the said contract. The plaintiff has incuiTcd expense in endeavouring to induce the defendant to perform his said contract, and in taking care of the said mill and pro- perty and keeping the same in repair, and the same has not- withstanding materially diminished in value since the time at which the valuation under the said contract ought to have l^een complete. The i)laintiff claims £10,000 damages. Action for Brcacli of Contracl lo deduce a good Title and conrnj hij a specified Day, Time Icing made of the Essence of the Contract. 1. The plaintiff is . The defendant is , 5G2 SALE OF LAND. Claim for breacli of contract to deduce a good title, &c. By an agTcemeiit bearing date the of July, 1877, it was agreed by and between the plaintiff and the defendant that the defendant should sell to the plaintiff, and that the plaintiff should purchase from the defendant, a messuage and land situate near Gravesend, in the county of , and known as " The Elms," at the price of £10,000, upon the following conditions and terms (among others not material to this action), that is to say : — That the plaintiff should pay the defendant a deposit of £ of the said price on or imme- diately after signing the said agreement, and the balance on the 31st of August, 1877, on M'hich day the said purchase should be completed, and that the defendant should deduce a good title to the said messuage and lands on or before the 1st of August, 1877, and on payment of the balance of the said purchase-money should execute to the plaintiff a proper conveyance of the said messuage and lands, and it was stipulated that time should be of the essence of the said contract. 3. The plaintiff paid the said deposit on the signing of the said agreement. 4. All conditions were fidfilled and all things happened and all times elapsed necessary to entitle the plaintiff to have the said agreement performed by the defendant. 5. The defendant did not deduce a good title to the said messuage and land on or before the said 1st of August, 1877, and did not execute to the plamtiflf such conveyance as afore- said on or before the said 31st of August, 1877. 6. The plaintiff in consequence of the defaults mentioned in the preceding paragTaph lost the use of the money paid by him as such dejDosit as aforesaid, and of other moneys provided by him for the completion of the said j)urchase, and has lost the expenses incurred by him in investigating the title of the defendant and in preparing to perform the agi*eement on his part, and has incurred expense in endeavourmg to procure the performance thereof by the defendant. The plaintiff claims : — (1.) £1000 damages. (2.) Such further or other relief as the nature of the case may require. of defence. SALE OF LAND. 56':^ Stateineiit of Defence. 1. The defendant denies the breaclies alleged in the 5th para- statement graph, and the damages alleged in the Gth paragraph of the statement of claim. 2. The stipulation as to the time of the performance of his said agreement by the defendant was waived from time to time by the plaintiff before any breach thereof, and a reasonable time liad not elapsed after the last waiver before the commencement of this action. 3. The defendant is able to deduce a good title to the said messuage and lands, and is ready and Avilling to execute a con- veyance of the same within a reasonable time. Action against Vendee on an Agreement to assign a Lease. 1. By an agreement in ^n'iting bearing date the 12th day of Claim July, 1877, and made between the plaintiff and the defendant, <'>'S^i°s* •^ ' ' ^ pxirchaser the plaintiff agreed to sell and assign to the defendant the lease on an of his then dwelling-house and licensed premises known as " The agreement ° -^ . for the (rrapcs," and the goodwill thereof, fi;»r the remainder of a term assignment then to come and unexpired, which was about nineteen years, sub- °^ ^ ^^^"^- jeet to the yearly rent of £92, and to the performance of the covenants thereby reserved and contained, together with the fin-- niture, fittings, utensils, and effects, according to inventory, for the sum ot £1500, to be paid as follows: — £100 as a deposit, and £1400 on the 2Gth day of July last, and the defendant thereby agreed to accept such assigmneut, and to pay to the plaintiff the said smn of £1400 on the said 2(!th day of July last ; and it was also mutually agreed that whichever of them should refuse or neglect to perform his part of the said agi*ee- ment, should pay to the other of tliem on demand the sum of £300 as and for liquidated damages, to be recoverable in any of her Majesty's comts of law. 2. Tlie j)]aintifF lias always been ready and willing, and lias offered to assign the said lease of his said dwelling-house, and the goodwill, fixtures, and utensils in trade to the defendant, and lias fully performed his part of the said agi-eement ; but the defendant has wrongfully refused to accept or pay for the £amc. 2 5()4r SALE OF LAND. Against purcliaser on an agreement for the assignment of a lease. 'S. The plaiiitiil" says tluit the defendaut has neglected and refused to pay to the plaintiff the said sum of £1400 pursuant to his said agreement, or to carry out his part thereof, and all times have elapsed and all conditions have been fulfilled and all thing's done on the part of the plaintiff necessary to entitle him to recover fi-om the defendant the said sum of £300; but the defendant refused and still refuses to pay the same. 4. In the alternative the plaintiff seeks to recover unliqui- dated damages for the breach of contract by the defendant above set forth in refusing to pay the said sum of £1400, or to cany out his part of the said agreement. The plaintiff claims : — (1.) £300 as the agreed liquidated and ascertained damages or, (2.) Unliquidated damages as aforesaid. Defence of iVaud. Statement of Defence and Coimter-daim. 1. The defendant denies that his refusal to pay was wrongful^ or that he acted wrongfully in refusing to cany out the said agreement. 2. The defendant further says that the said sum of £300 is not due, nor is any part of it, and that such a sum is a penalty and not agreed or liquidated damages. 3. The defendant was induced to enter into the agi-eement mentioned in the statement of claim by the representations of the plaintiff that the takings of the public-house called the "Grapes Inn" were from £1G0 to £180 a month, and that the payments to the brewer and the distiller were £G0 and £40 respectively, that the house was capable of doing a much larger business, and further, that the brewers and distillers were prepared to lend £1100 upon the security of the lease and good^vill of the premises. 4. The said takings were not in fact £1G0 a month, but con- siderably less. 5. The said payments to the brewers and distillers were not in fact £G0 and £40 respectively, but considerably less. C. The said brewers and distillers were not in fact prepared to lend £1100 or any other sum upon the said secm-ity or at all, nor was the house capable of doing a much larger business. SALE OF LAND. 565 7. The representations mentioned in the 3rd paragraph of Statement this statement of defence were false to the knowledge of the setth,g"up plaintiff when he made them to the defendant, and were made fraud, by him fi-audulently ; or if they were not then false to his know- ledge, yet he had no belief that they were trne, and no reason- able ground for believing them to be true, and he stated them to the defendant as facts within his knowledge for the puiiiose of inducing the defendant to enter into the said agreement. And l)y way of counter-claim the defendant says as fol- lows : — 1. The defendant repeats the allegations contained in the Coimter- 3rd, 4th, 5th, 6th, and 7th paragi-aphs of the statement of de- p^lJ^^g fence, and says fiu'ther that he was induced by the said repre- damages sentations of the plaintiff to pay the sum of £100 by way of ^°^^ ^^ deposit upon the pm-chase of the premises referred to in the the deposit, above-mentioned agreement between the plaintiff and the de- fendant. 2. Shortly after the deposit of the £100 and ^\-ithin a reason- able tune and before he had entered into the actual possession of the lease and goodwill of the said premises, or of the said premises, the defendant discovered that the said representations were fiilse and fraudulent, and he thereupon immediately re- scinded the said agreement, and demanded back the said £100 which he had paid to the plahitiff as above stated. 3. The plaintiff refused to pay to the defendant the said £100, and he has not repaid the same, nor any part of it. 4. The defendant also seeks to recover the said £100 as money payable by the plaintiff to the defendant, for money received by the plaintiff to the use of the defendant. The defendant claims : — (1.) £100. (2.) £500 damages in respect of tlie above grievances. (3.) Such further, &c. Action for Recovery of Deposit jmd to Agent on Sale of Proim-tij on the Vendor fait iwj to comptcte. 1. The plaintiff is an innkeeper. Claim 2. The defendants arc auctioneers. aucti'onecrs 3. On or about the 17th day of Octoljcr, 1S7G, an agreement for recovery of deposit. 566 SEDUCTION. Claim was ciitercd into between the plaintifi' and C. J. L., whereby the- auctioueers ^^^^ ^- '^ • ^- ^gi'^ed to Sell to the plaintiff the Duke of York for recovery public-house, Road, in consideration of the sum of £50 posir * '^' ^'^^^^ P^^^^ ^y ^^® plaintiff as a deposit into the hands of the defendants, and of a farther sura of £2000 to be paid by the plaintiff to the said C. J. L. 4. By the said agreement it was provided tliat the said sale should be completed by the said C. J. L. by the 25th October, 187G, and that the said C. J. L. would do all necessary acts for duly transferring the licence and magistrate's certificate to the plaintiff. 5. The said C. J. L., as the defendants weU Imew, wholly failed to complete the said assigiimeut aforesaid, or to do all necessary acts for transferring the licence or magistrate's cer- tificate to the plaintiff as aforesaid, and has wholly neglected and failed to do so, and has refused and become incapacitated fi'om so doing. C. The consideration for the said agreement and said deposit aforesaid wholly failed, 7. The plaintiff thereupon, as he lawfully might do, de- manded of the defendants the said deposit of £50 aforesaid; yet the defendants have wrongfully refused and still refuse ta hand over or refund the same. The plaintiff claims as follows : — (1.) £50 aforesaid. (2.) Interest upon the said simi at £5 per cent, from the date the same became due until final judgment. Claim for seduction- Seduction («). Act mi for Seduction of Plaintiff's Daughter. 1. The plaintiff is a farmer residing in the village of ,, in the county of . The defendant is a young man of in- dependant means residing in the same village. Loss of services the foundation of the action of seduction. («) The plaintiff in an action for seduction is never the woman who> has been sednced ; but someone Ijetween whom and herself there existed in the eye of the law, at the time of the seduction, the relation of master and servant. A right of action is given to such a person merely on the ground that, as a consequence of illness resulting from the seduction, he has lost SEDUCTION. i67 2. Before, at the time of and since the seduction herein- after mentioned, Jane P., the daughter of the plaintiff's ^Yife, lived with the plaintilf and his said wife, and was treated by Claim for seducUon. for a time the services of the woman. It is laid down in some books that there must be actual pregnancy, if not the birth of a child, consetjuent on the seduction, before an action will lie. But it is submitted that this is not so, and that any kind of illness which is immediately produced by the seduction, and which is sufficient, even temporarily, to deprive the master of the services of the woman, is enough ; and there is for this proposition the authority of the case of Maiivill v. Thomsoti, 2 C. & P. aOii, where the plaintiff recovered JJiOO damages, although the woman did not become pregnant. The illness relied upon in this case was that the woman " continued sometime in a state of great agitation, and received medical attendance, and was obliged to be watched lest she should do herself some injury." There are therefore at least three essential ingredients in an action of seduction : 1. The relationship of master and servant between the plaintiff and the woman seduced. 2. The seduction of the woman, while in the plaintiff's service, by the defendant, 3. Her subsequent illness, and loss of service and damage to the plaintiff ; and it is necessary that averments disclosing all these facts should appear on the face of the statement of claim. It will be seen therefore that the law gives neither to the woman nor to the parent any remedy where there has been seduction not followed by pregnancy or illness; and even in cases where jiregnancy or illness is joined to the seduction, there may be no remedy if the woman at the time is residing away from the house of her parents, and the person in whose service she is refuses to bring an action. Suppose that her seducer is her master. In such a case there would be no action. The girl could not bring it ; the father is in the same position, because she is not in his service ; and the master cannot and would not bring an action against him- self. Even if in the case supposed, as a consequence of the seduc- tion, the girl is thrown ill upon her father's hands, and he expends large sums of money in attending to her and the child, still he would have no right of action. {Crriniiell x. Wells; 7 M. & G. 1033.) In such a case, however, it has been held that if it could be proved that the service was not band fide, but a mere device or contrivance to get possession of the person of the woman, then the father woi;ld have an action on the ground that she remained in his service. (^Spvlglit v. Olivkra, 2 Stark. 495.) Another case in which there would be no remedy for a seduction, joined with subsequent pregnancy and illness, is the following. Suppose a woman in the service of her father or one master at the time of the seduction, and in the service of another master at the time of the pregnancy and illness, no action would lie by either master or the father. The father or first master could not sue, because there was no illness while in his service, and no loss of service. The second master cannot sue, because she was not seduced while in his service. (^Davies v. Williams, 10 Q.B. 725.) To entitle a father to sue in this action for the loss of his daugh- ter's services, it is not necessary to show ^^any contract of service between them. {/'Jeans v. Walton, L. R. 2 C. P. 015.) It is sullicient that the woman is not Ijound to give her services to anybody else, and that living with him or only temporarily absent, he can at any moment command her services. If the father is dead, the mother or any other person who stands in loco jjarentis to the woman seduced has his rights. There is one important difference between the case of Quaere, Is actual pregnancy essential to the action ? Material averments in the claim. Cases where there is no remedy for a seduction followed by illness. What is evidence of .service to entitle a l^arent to sue. Diflcrcuco 668 SEDUCTION. Claim for seduction. him as his danghtcr, and rendered habitual services to the plain- tiff in managing a dairy and in other household work and otherwise as the plaintiff's servant. 3. In the early part of the year 1875 the defendant seduced the said Jane P., whereby she became pregnant, and was on the 2-ith of November, 1875, delivered of a child. 4. In consequence of such seduction the said Jane P. was both before and after her confinement sick and ill, and the plaintiff lost her services for a long time, and also those of her mother who attended to her in part, and also incurred expense for nursing and medical attendance during her said illness and at the time of the delivery of the said child. The plaintiff claims £300 damages. Statement of defence. Statement of Defence. 1. The defendant does not admit the allegation as to his means in the 1st paragraph of the statement of claim. 2. The defendant denies that he seduced the said Jane P. as alleged in the 3rd paragraph of the statement of claim, or at all. 3. The said Jane P. was not in the plaintiff's service at the times mentioned in the 2nd paragraph of the statement of claim. 4. The defendant does not admit the 4th j^aragTaph of the statement of claim. m measure of damages in actions by master and father. Defences to actions for seduction. a parent suing for the loss of a daughter's services, and a mere master suing. Tlic measure of damages awarded to the latter is the bare money loss suffered ; but in addition to this, a jury may award to a parent damages for the distress of mind endured, and the dishonour and disgrace cast upon the family. {Bedford v. McKon-J, 3 Esp. 120.) The defences that a defendant may set up to this action have already been indicated. He may (1) deny that the plaintiff was the master of the woman at the time of the seduction ; (2) deny the seduction altogether ; {?,) admitting or denying the fact of seduction, deny that any pregnancy or illness, followed by loss of service, resulted while in plaintiff's service. He may also plead the Statute of Limitation where six years have elapsed since the alleged loss of service ; and it would seem that where the seduction has been brought about or contributed to by the misconduct of the plaintiff in encouraging improper intimacies, or by gross neglect of parental duties, a plea to that effect will be a good answer. {BcddicY. Scoolt, Peake, 3 16.) Refemng to this last decision, it is remarked in a work of high authority, " It may well be doubted whether this was not rather matter in reduction of damages." (Eoscoe's Nisi Prius, 13th edition. 880.) SHERIFF. 569 Another Claim for Seduction. 1 . The ijlaintiff is a man-ied woman living apart from her Claim for husband, and has obtained an order from Master K. to com- mence this action in her ova\ name. She resides at , and lately carried on the business of a . 2. The defendant resides at , and is an auctioneer. 3. In or about the month of , 187G, the defendant de- bauched and carnally knew Mary Ann C, the daughter of the said plaintiflf, and then being her assistant in the business aforesaid, whereby the said Mary Ann C. became pregnant with child. 4. In consequence of the premises the plaintiff lost the ser- rices of the said Mary Ann C. for a long time, and incun'ed expense in nursing and taking care of her and about the delivery of the said child. The plaintiff claims : — Shares. See Stock — Stockbroker , Sheriff. Action against Sheriff fur itlccjal Seizure and Sale. 1. The plaintiff H. C. B. is the receiver appointed by the Claim by- late High Court of Chancery in a suit of Harris and Others fifalt J-'"" V. B., by an order of Vice-ClianccUor Bacon dated the native tilth February, 1875, "to take possession of the L. ]\Iine8 sheriff for Colliery and business in the bill in the said suit mentioned, illegal Ijeing certain mines situate at Leycett, in the county of Staf- ^^^™^^' ford, and the colliery and business there carried on, and to manage the same with a view to the sale thereof as a going concern." 2. The other three plaintiffs are the executors of the last will of P. Hams, deceased, liereinafter called the testatoi', who died on the 20th September, 1874, and whose said will dated the 10th April, 1872, was duly proved by the said executors on the 24th December, 1874. 570 SHERIFF. Claim i)y «"• The tleienclaut J. B. is and was at the time of the tres- ti^"ir*^ ^"^ passes and gi-ievances hereinafter mentioned, the High Sheriff native for the connty of S. ; the defendants the Crewe Coal Co. are, &c. 'T!'."r*/. ■^- Iii^mcdiately after his said appointment the plaintiff" illegal H. C. B., as such receiver as aforesaid, took and has ever since seizure. retained possession of the said mines, colliery, and business, and of the plant and machinery thereon and connected therewith. 5. The testator was at the time of his death as aforesaid equitable mortgagee of tlie said L, Mines and Colliery, and also owner of the said plant and machinery under and by virtue of a wTitten agreement dated the 11th July, 1872, between the testator and one E. B., and by virtue of the deposit with the testator to secure certain advances made by him of a written agreement dated the 27th May, 1872, between the defendants the Crewe Coal and Iron Co. Limited and the said E. B. G. On or about the 3rd December, 1875, the defendant J. B., by his officer, under colour of a writ of fi.fa. issued by the de- fendants, the Crewe Coal and Iron Co. Limited, on a judgment signed in an action by them against the said E. B., broke and entered the said colliery and wi'ongfuUy seized the machinery and plant thereat, consisting of two engines with boilers and engines, 20,000 bricks forming the brickAvork in which the engines, boilers, and machinery were fixed, and certain wood- work and other effects, and on or about the 7th December, 1875, caused the same to be sold l)y auction and removed from the said colliery and converted the proceeds thereof to his own use. 7. The plaintiffs say that in making the said seizure and sale the defendant J. B. acted under the special direction of the defendants, the Crewe Coal and Iron Co., who had notice that the property seized belonged to the plaintiff's or one or other of them. 8. By means of the said trespasses and grievances the said colliery was wrecked, and its value as a going concern ruined. 9. The jilaintiffs allege in the alternative that the possession of the said property and the right to sue for damages for the said trespasses and gi'ievances resides in the plaintiff' H. C. B., as such receiver as aforesaid, or in the other three plaintiffs, or in all the plaintiffs. The plaintiff's claun £5000 damages. SHERIFF. 571 Statement of Defence of fJie Dofenilant J. B. 1. The defendant denies that the plaintiflF H. C. B. was Defence ta appointed receiver of the L, Mines Colliery by the late High ^n me^°ai Coiu't of Chancery as alleged, and that he took possession as seizure^ such recei'S'er of the said mines, colliery, and business, and of the plant and machinery thereon and connected therewith, and that he was in j)ossession of the said property at the time when the defendant levied execution upon the said proj^erty. And the defendant further says that none of the plaintiifs were in possession of the said property or entitled thereto at the time of the said execution. 2. The defendant denies that the testator was at the time of his death equitable mortgagee of the said L. ]\Iines and Colliery, or was OTNiier of the said plant and machinery as alleged. 3. The defendant farther says that the testator's title to the said property (if any) was l)y vu'tue of a bill of sale within the meaning of the " Bills of Sale Act, 1854," which was made more than twenty-one days before the said execution, and was un- registered at the time of the said execution, and that no possession was taken by the testator or his representatives under the said bill of sale at the time of the said execution. 4. With regard to the claim- of the testator's executors, the defendant says that the goods seized by the defendant were the property of the said E. B., subject only to an agreement between him and the testator, which agreement did not pass the property in the said goods to the said testator, but was only per- sonally binding on the said E. B., and was only enforceable in a Court of Equity, and that the defendant at the time of the said execution had no notice of the said agreement and of the said equitable claim of the testator's executors. 5. On or about the 3rd December, 1875, the defendant's officers, under a valid writ of fieri facias upon the judgment in the C>i\\ paragrai)h of the statement of claim mentioned, lawfully seized and si^ld some machinery and movable plant on the said colliery, the same being the property of the said E. B. liable to seizure under the said writ of fieri far iaf<, but tliey did not seize any of the brickw(jrk of the said colliery. 0. The defendant denies that the said collieiy was a going concern, and that by means of the alleged gi'ievances and 572 SHERIFF, Defence to claim against sliei'iff foi- an illegal seizure. trespasses the said colliery was wrecked, and its value as a going concern mined. 7. The defendant further says that if any trespasses or ■\n'ong- fiil acts were committed by the dcfcudant or his officers as in the statement of claim alleged, the defendants, the Crewe Coal and Iron Company Limited, are liable to indemnity the defendant in respect of any damages recoverable against the defendant for such trespasses or wrongful acts on the ground that the said Crewe Coal and Iron Company Limited having caused the writ of fieri facias above mentioned to be issued and indorsed and delivered to the defendant to be executed, directed and required the defendant's officers to execute the said "\^Tit by entering the collieiy and premises in the statement of claim mentioned, and taking the machinery and other goods and chattels in the same statement mentioned and alleged to be WTongfully seized and caused to be sold by the defendant as and for the goods of the said E. B., and thereupon the defendant's officers, acting upon the said direction and request, and hond fide believing that the said L. Mines and Colliery, and all the goods and chattels there- on, were the property of the said E. B., seized and sold the goods and chattels in the 5th paragraph of this statement mentioned. 8. This defendant J. B. claims that if at the trial of this cause any damages are awarded to the plaintiffs in resjDect of the alleged trespasses or other ^n'ongful acts, such damages may be awarded against the defendants, the Crewe Coal and Iron Company Limited, either directly to the plaintiffs in discharge of this defendant, or as indemnity to this defendant against the payment of such damages. Reiihj. 1. The plaintifls join issue upon the 1st, 2nd, 3rd, 4th, 5th, and 6th paragraphs of the statement of defence. The plaintiffs further say that they have no concern with the defendant's claim for indemnity against the Crewe Coal and Iron Company Limited, but claim that any damages which may be awarded to the plaintiffs may be so awarded both against the defendant J. B., and against the said Company. Action against Sheriff for sellinfj with undue Haste and ivitlwut sufficiently Advertising. 1. The plaintiff is a retired officer in her Majesty's Indian SHERIFF. 57^ army, and the defendant is a o-entleman residing at C. Hall, in -Against a o ' sheriff for the county of S., and was iu the year 18 — sheriff of the said misconduct county. ^^ ^°^°e°- 2. In the month of September, 187C, a writ oi fieri facias a sale ■was Issued from the Division of the High Court of Justice °^ soo']^ against the goods of the plaiutiflf, directed to the defendant as execution. the then Sheriff of S., and indorsed for £415, with interest and costs (the £415 being the amount recovered in an action brought by Richard R. against the plaintiff), and the wi'it so indorsed was delivered to the defendant as such sheriff. 3. The defendant, on the afternoon of the 8th September, seized under the said ^nit certain race-horses, the property of the plaintiff, named Lady Jane, the Coquette, and others of great value, which said race-horses were then in the care of and beiug trained by Thomas , trainer at Xe^^Tuarket, in the said county of S. 4. The defendant wrongftilly sold by auction the said race- horses so seized with undue and unnecessaiy haste, without reasonable notice of the said sale, and without it being possible for the plaintiff, after the seizure and before the sale, to hear of the seizure, so as to enable him to satisfy the execution and avert the sale, and the defendant improperly allotted the said race-horses and sold the same for a price which was inadequate and less than then- reasonable price, and without taking due and reasonable care in advertising and giving notice of the sale, and also conducted himself negligently in the conduct and manage- ment of the sale, whereby and by reason of the premises the sale realised much less than it othei-wise would have done. 5. The defendant also sold a greater nmuber of the said race-horses to satisfy the said execution than was necessaiy, and converted to his own use some or one of the said horses and a part of tlie proceeds of the sale. The plaintiff claims : — (1.) £1500 as damages for the grievances above com- plained of. (2.) Such fiirtlier or other relief as the nature of the case may require. o74 SHIP-OWNEK. Against shipo^vners lor refusing "to give a ■clean re- ceipt for goods shipped and for trover. Ship-owner. And sec Cliartcr-parlij — Bill of LacUmj. Action against Shiji-owner for refusing to give a dean Receipt for Goods sJiijjjJed in his Vessel and sold suhjed to dean ReccijJt l)cing given. 1. Ill the month of August, 1877, the plauitiff sold to one G. S. 11\ tons of glucose at the price of £19 12s. Crf. per ton, on the terms that the plaintiff sliould deliver the same free on board an export ship in the Thames, and that the plaintiff should give to the said G. S. a clean receipt for the same from the owners of such export shij) or their master or agent. 2. On or about the 7th of August, 1877, it was agreed by and between the said G. S. and the defendants that the said \1\ tons of glucose should be shipped on board the defendants' ship " Orient " and carried therein to Adelaide upon certain terms then settled between them. 3. Accordingly the said G. S. gave notice to the plaintiff to ship the said 17^ tons of glucose in the " Orient." The plain- tiff" thereupon conveyed the said 17i tons of glucose packed in 345 cases alongside the said ship in lighter, and gave instruc- tions to the chief officer of the said ship only to receive and keep on board such of the cases as were in good condition, and for which the chief officer would give a clean receipt, so as to enable the plaintiff to comply with his contract with the said G. S. in that respect. 4. The chief officer of the "Orient," the defendants' agent, received and kept on board the said 345 cases of glucose, but. did not give and wholly refused to give a clean receipt of bill of lading for them, whereupon the said G. S. refused to accept the said 345 cases in pursuance of the said sale, and the plaintiflF demanded the return of the said 345 cases, but the defendants wholly refused to return the same or any part thereof, and con- verted the same to their own use. The plaintiff claims £500 damages. SOLICITOR. 575 Solicitor («). Claim hy one of a Firm of Solicitors for his Charges incurred before Partnership and Charges for Work done hg tlie Firm (b). 1. The ijlaintilfs are solicitors carrying on business in part- Claim for iiersliii) at W., in the county of . solicitor's charges. (a) In order to enable a solicitor to recover his charges for profes- sional services he must be prepared to prove — 1. That he was duly admitted, enrolled, and qualified as a solicitor. By the Stamp Act. 1870, a solicitor who directly or indirectly acts or practises in any Court as such without having a duly stamped certifi- cate in force at the time, shall be incapable of maintaining any action or suit for the recovery of any fee, reward, or disbursement in relation to any act or proceeding by him in such capacity. And by the Attorneys and Solicitors Act, 1874 (37 & 38 Yict. c. 68. s. 12), no costs, A:c., in relation to an// act or i^roceeding by a solicitor without being duly qualified to act as such, shall be recoverable in any action, kc. By 23 & 24: Vict. c. 127, s. 22, the La?v List shall be prima, facte evidence that the persons whose names are inserted in it, in the list of solicitors, have obtained stamped certificates for the current year (Nov. IGtoXov. l.>) and the absence of a solicitor's name therefrom is 2)rim4 facie evidence that he has not obtained a certificate for such current year ; Ijut in the latter case an extract from the Roll of Solicitors, signed by the secretary of the Law Society, shall be evidence of the facts appearing in such extract. 2. His retainer as solicitor by the defendant, which may be done by showing either an express retainer, or that the defendant attended at his office and gave directions, or otherwise recognised his employment. 3. That the business was done, which may be proved by a clerk or other agent who can speak to the existence of the cause or other business in respect of which the charges are made, and can prove the main items. (Roscoe Ev. Nisi I'rius, 13th ed. 473.) 4. That a bill was delivered pursuant to 6 & 7 Vict. c. 73, s. 37. which provides that no solicitor, nor an executor of any solicitor, shall com- mence or maintain an action for the recovery of any fees, charges, or disbursements for any business done by him as such solicitor until the expiration of one month after he shall have delivered to the defendant, or sent by post, or left for him at his counting-house, office, dwelling- house, or last known abode, a bill of such fees, ice, which shall be sub- scriljed by him or any one of the ]iartners, by his name or the name of his firm, or be accompanied by a letter so subscribed, and referring to such bill. Under this enactment a solicitor's bill cannot be recovei'ed on an account stated, without proving the delivery of the bill, though the amount has been admitted. {Eiclic v. Nottfin, 1 M. & Bob. 3.59.) But he may recover on a promissory note given for the amount. {Jeffreijs v. Ecanx, 14 M. & W. 210.) The bill must after delivery be Irft with the defendant for examina- tion, (Brooks v. Ma.so)i, 1 H. Bl. 2'M.) A delivery to the defendant's solicitor, if he himself afterwards attends the taxation, is sufficient. (Vincent v. Slaymalicr, 12 East, A solicitor must take out a cer- tificate to enable hitn to recover his fees. Law list primAfaeif. evidence of his quali- fication. Delivery of a bill month before action essential. {h) For this note, secjwst, p. 578. 576 SOLICITOR. Claim for solicitor's cku-ges. 2. Before the })laiiitilfs entered into tlie i:>artncrship the de- fendant retained and employed the plaintiff J. E. F. as his Solicitore may make special agreements in wi-iting as to tlieir fees. Common defences to actions by solicitors for their charges. \'Vhen the plaintiff's negligence disentitles him from 872.) So a delivery to one of several persons who join in the retainer. {Foiclictt V. IIon\ 2 Camp. 277.) By the Attorney and Solicitors Act, 1870 (3:1 & .34 Vict. c. 28, s. 4), n solicitor may malic an agreement in writing with his client respecting the amount and manner of payment for his fees or disljursements. &c.. either by a gross smn, or commission, or salary ; bnt where the agree- ment is in respect of business transacted in Court, the amount payable thereunder shall not be received by the solicitor until the agreement has been approved by a taxing officer. By sect. 8 no action shall be brought to enforce such agreement, but it may be enforced by the Court on motion. By sect. 15 an agreement under this Act obviates the objec- tion of no signed bill having been delivered, when an action is brought to recover the solicitor's charges. It has been held that to constitute an agreement as to costs between a solicitor and his client within the meaning of sect. 4 of this Act, the docvunent must be signed by both parties. {Ex jJarte Mnnro, Be Lems. 45 L. J. Com. Law, 816.) The statement of claim should show that all the above conditions have been complied with subject to such modifications as have been mentioned. Proof is altogether another matter, and the plaintiff will only be called on to establish such of them as the defendant denies or does not admit in his statement of defence. Defences.'] — The foregoing outline of the conditions it is essential in the absence of admissions by the defendant to establish, indicate suffi- ciently the chief defences to this action. They are — 1st. Denial that the plaiutifE was duly admitted and qualified to practise as a solicitor at the time of the rendering the services. 2nd. That he had not taken out a certificate piu-suant to the 6 & 7 Vict. c. 73, s. 2fi. 3rd. A denial that the plaintiff delivered a bill pursuant to the 6 & 7 Vict. c. 73, s. 37, in cases which do not come within the provision of the Attorneys and Solicitors Act before referred to as to special agreements. 4th. Denial of the retainer. 5th. Denial that the services were rendered, including allega- iions charging negligence or incompetence. The plaintiff "s negligence is no defence if it has not been such as to deprive the defendant of all benefit. {TempJer v. McLaclilan, 2 N. E. 136.) But where such has been the case, it is a good defence. See for several instances, Ilimtlcij v. Buhver, 6 N. C. Ill ; Braccy v. Carter, 12 Ad. & E. 373 ; Long v. Orsi, 18 C. B. N. S. 610 ; 26 L. J. C. P. 127 ; Len-isY. Samuel, 8 Q. B. 685 (in which the plaintiff sued only for costs oiit of pocket, to which he had agreed that defendant's liability should be limited). An attorney cannot recover costs of suit in an inferior Court, which, as he ought to have known, had no jurisdiction in the matter, and was restrained by prohibition. (Bohinson v. Etnaniiel, L. E. 9 C. P. 415, 416.) So where he sues in a Court which has no adequate powers to examine material witnesses out of the jurisdiction, and the suit fails accordingly. i^Cox v. Learli, 1 C. B. N. S. 617 ; 26 L. J. C. P. 125.) When it has appeared that the plaintiff paid no attention to the defendant's case, but resided at a distance from his office, and his business was transacted by a person employed by him, it was held he could not recover, even without reference to the success or mis- carriage of the business done. (^Taylor v. Glassbrvoh, 3 Stark. 75 ; Ho'plunson v. SndtJi, 1 Bing. 13.) \\liere the plaintiff has throtigh inadvertence or inexperience done useless work, he cannot recover for it ; and where there are charges for such work and separate charges SOLICITOS. 577 solicitor, and' for work done as such solicitor between , Claim for 187G, and tlie lltli of March, 1877, both inclusive, and for dis- ^harS'" for work for which he is entitled to recover, the former may be expunged. {Shaw v. Arcloii. 9 Bing;. 287.) Where, however, there has been some other cause concurring with the plaintiflE 's negligence or incom- petence, and conducing to the loss of benefit to the defendant, it forms no defence. {Br/.rY. Tr«rr/, 1 Stark. 409.) It is no ground of defence that the plaintiff neglected to put in a plea for delay according to defendant's instructions. {Jolinxnn v. Alston, 1 Camp. 17(5.) The fact that an in- stniment prepared by the plaintiff turns out to be illegal is no defence to an action for the charge for preparing it if there was any reasonable doubt of its legality. {Pott^f v. Sjmrron', 6 C. & P. 749.) And see as to the effect of an error in matters of difficulty, Biilmcr v. G'llman, 4 M. & Gr. 108 ; and In re Sudd, 84 L. J. Ch. 562 ; 84 Beav. 650. In preparing a statement of defence in cases where the instructions disclose serious negligence or want of knowledge of practice or law. which has deprived the defendant altogether or in some measure of the benefit of his claim, defence, &c., it would perhaiDS be the better course to make such negligence, &c., the subject of a set-off or counter-claim, and as the same evidence would be given on the claim and counter- claim as if negligence were pleaded, there need hardly be any aj^pre- hensiou that the cases would be ordered to be tried separately. Before the .Judicature Acts came into force, if a solicitor who acted as the agent of another sued the client, it would be a good defence that credit was given to the principal solicitor by the plaintiff and not to the client, and evidence to show that this was the custom in the pro- fession would be admitted in sujiport of such a defence. But since the above Acts came into force, if the principal solicitor and liis agent sued together as plaintiffs and claimed alternatively this defence would hardly avail the defendant. \\'hcn neqTifionrc, <\-<'.., acfionahle.'] — There must be gross negligence or ignorance in the performance of his professional duties by a solicitor to render him liable to an action by his client. {Piirris v. Landrll, 12 CI. & F. 91.) He is bound to bring a fair amount of skill, care, and knowledge to the performance of his duty, and tliis is a question of fact for the jury, mider the direction of the judge, who is to explain the nature of the duty, and the degree of negligence or ignorance which \\i\\ make him responsible. {Iliinirr v. Cdldiccll, 10 Q. B. 69 ; aff. ih. 83.) " It would be extremely difficult," observes Tindal, C. J., in delivering the judgment of the Court, in Godrfroi/ v. Balton (6 Bing. 467 — 9), "to define the exact limit by which the skill or diligence, which an attorney undertakes to furnish in the conduct of a case is bounded ; or to trace precisely the dividing line between that reasonable skill and diligence, which appears to satisfy his undertaking and that rrnxxt/ 7irf//if/rnfiri or lata cvlpii for which he is undoubtedly res])onsible. The cases, however, appear to establish, in general, that an attorney is liable for the consequence of ignorance or non-observance of the rules of ))ractice of the Court in which he sues, for the want of care in the pre- paration of the cause for trial, or of attendance thereon with his witnesses, and for the mismanagement of so much of the conduct of a cause as is usually and ordinaiily allotted to his department of the profession. Whilst on the other hand he is not answerable for error in judgment upon points of new occurrence or of nice or doubtful construction, or such as are usually intrusted to men in the higher branch of the profes- sion of the law We lay no stress upon the fact that the What amounts to negligence in a soli- citor dis- entitling him to bis costs. The advis- ability of making a solicitor's negligence the subject of a coun- ter-claim. Solicitor liable for (jross neg- ligence. Jndgment of Tindal, C. J., as to what amounts tr> "gross neg- ligence." ^ Claim for solicitor's cliarges. SOLICITOR. burscmciits and payments hj the said J. E. F. in and al)onfc such work, there is due from the defendant to the said J. E. F. the sum of £194:, less £50 paid on account on the of January, 1877. 3. After the 11th of March, 1877, the defendant retained and employed the plaintiffs as his solicitors, and for work done as such solicitors betM'een the 11th of March, 1877, and 2'2nd of June, 1877, and for dislmrsements and payments in What is "gross neg- ligence." The general powers of a solicitor over a suit. Liability of firm of solicitors for money of a client in hands of member. Common defences. attorney had consulted counsel, because we think his liability must depend upon the nature and description of the mistake or want of skill which has been shown, and he cannot shift from himself such responsibility by con- sultina: another where the law would presume him to have the knowledge himself." (And see Lee v. Wallrr, L. E. 7 C. P, 121.) A solicitor retained to conduct a cause has, in the absence of express prohibition, an implied power in the exercise of his discretion to enter into a compromise, if he does so reasonably, skilfully, and hand fidr. iClmvn V. Farnitt, 32 L. J. C. P. 197 ; 14 C. B. N. iS. 74 ; but see Giren V. Croclictt, .S4 L. J. Ch. C06.) A solicitor retained in an action has no implied authority after judgment for his client to agree on his behalf to j:ostpone execution. {Lovegrove v. Whifi\ L. E. fi C. P. 440.) A stipulation in a special agreement under the Attorneys and Solicitors Act, 1870, that a solicitor shall not be liable for negligence is void. (See S.7.) Where money of a client comes to the hands of a partner in a firm of solicitors, in the ordinary course of then- business as such, the firm are liable in case of a defalcation by such partner. {St. AvJiyn v. Smart, L. E. 5 Eq. 188 ; Ih., .3 Ch. 646 ; Dundonald, Earl of, v. Maxt'rrman, L. E. 7 Eq. r)04.) If money is left in the hands of a member of a firm to be invested in a specific mortgage, the firm are responsible ; but alitcr where it is so left with a general direction that it is to be invested on mortgage, as this contemplates a character of business strictly belonging rather to the occupation of a monetary scrivener or money-lender than to that of solicitors, {llarman v. Jolimon, 2 E. & B. 61 ; 22 L. J. Q. B. 297 ; and see Plumcr v. Giryory, L. E. 18 Eq. 621.) A firm of solicitors is not liable for money entrusted to one of its members as a trustee. {Dxn- donald, Earl of, v. jllasterman, xii'pra.) Defences.'] — 1. Denial of retainer, under which would be ranged a defence denying that the defendant acted as solicitor. 2. Denying the breach of duty. 3. Denial of damage, which, however, is only a defence to the extent of reducing the verdict to nominal damages. The onus lies on the de- fendant of showing that the plaintiff had either no good cause of action or no defence in the action about which the ueghgence is alleged to have been committed. (See Godefroy v. Jay, 7 Bing. 413.) 4. Statute of Limitations. The statute runs from the breach of duty complained of. and not from the discovery thereof, or the occurring of the consequential damages. The operation of the Statute of Limitations is not suspended or removed by acknowledgment in this action. (See ante. Limitation of Actio nn.) (h) Before the Judicature Acts the firm and an individual partner could not have sued together as in this form ; but by Order XVII. r. 6, " Claims by plaintiff's jointly may be jc^ined with claims by them or any of them separately against the same defendant." SOLICITOR. 579 charges. and abont such work, there is due from the defendant to the Claim for plaintiifs £113. solicitor's 4. The plaintiffs have delivered to the defendant biUs duly ■signed by them containing- full particulars of the sums of £113 and £144 aheady mentioned a month before the coimnence- ment of this action, but the defendant has not paid the same. The plaintiffs claim £113. The plaintiff J. E. F. also claims the fiu'ther sum of £144. Statement of Defence and Countey-cJaim. 1. The j)laintiffs' claims in this action are for charges, fees, and disbm'sements alleged to be payable by the defendant to the plaintiffs respectively for the work done, and disburse- ments and payments made by the plaintiffs as such solicitors as in the said statement of claim mentioned, whilst they were acting under the retainers and performing the work here- inafter in the defendant's counter-claim particularly men- tioned. 2. The i)laintiffs, whilst they were so acting under such retainers and performing such said work and making the said disbursements and payments in the plaintiffs' said statement of claim mentioned, Avere guilty of gross carelessness, negli- gence, ignorance, and improper conduct hereinafter in the defendant's counter-claim particularly mentioned. 3. By reason of such carelessness, negligence, ignorance, and improper conduct of the plaintiffs, the said work, disburse- ments, and ]iayments were utterly worthless and of no use or value whatsoever to the defendant, and by reason thereof the defendant never became, nor was, nor is he now liable to pay to the plaintiffs the moneys claimed by them in respect of the same or any part thereof. And by way of set-off and counter-claim the defendant says : — 1. At the time hereinafter mentioned the defendant was and still is a clerk in holy orders, and rector of the parish of , in the county of . 2. In tlie month of , J 87(5, one commenced an action for libel against the defendant in the High Court of Justice in respect of certain alleged defamatory statements published by the defendant in the IT. Advertiser. Defence that tlic plaintift''s exertions were wortli- less to the defendant. Counter- claim. 580 SOLICITOK. Counter- claim. Plaintifl's' negligence ns solici- tOfl"S. ". Tlic defendant retained, first, the plaintiff J. E. F., and tlien l)()th the plaintiffs for reward to act for liim as his soHcitors in the said action. 4. Whilst the plaintiffs were acting under and by Tirtue of the said retainers and employment, they were guilty of and acted with gross carelessness, negligence, ignorance, and im- proper conduct, that is to say, the plaintiffs carelessly, negli- gently, ignorantly, and improperly omitted to advise the de- fendant that the said letter so published by the defendant was^ a libel on the persons therein referred to, and that the defend- ant was not in a position to justify the same or defend the said action, that the claims of the said persons ought to be com- promised, or that the same might be compromised on terms favourable to the defendant, although the fact was so ; and further in this, that the plaintiffs carelessly, negligently, igno- rantly, and improperly omitted to compromise the claims of the said persons upon such reasonable terms as the same might have been compromised upon ; and in this, that they improperly disclosed, or caused to be disclosed, to the solicitors of the said persons that the defendant's counsel viewed his defence of the said action unfavourably, and therel)y prevented the said before- mentioned persons compromising their claims upon terms ad- vantageous to the defendant, as they otherwise would have done ; and in this, that although the said before-mentioned persons were ready and willing to allow the said action to abate and cease without requiring the defendant to pay them any costs, yet the plaintiffs carelessly, negligently, ignorantly, and improperly forced and compelled them to proceed with the said action ; and in this, that they carelessly, negligently, igno- rantly, and improperly omitted to call as witnesses on behalf of the defendant certain j)ersons who could and might and ought to have been called at the time; and also carelessly, negligently, ignorantly, and improperly expended large sunis of money to subpoena as A\itnesses persons Avho were not necessary or proper to be and Avere not in fact called as witnesses on the said trial. 5. By reason of the premises and of the said careless, negli- gent, ignorant, and improper conduct, the defendant was induced to and did defend the said actions brought against him as aforesaid, without having any reasonable, proper, or sufficient ground for so doing, and was defeated in the same SOLICITOR. 581 .fiud became and was obliged' to and actually did pay a large Countei- sum of money for the damages and costs of the same, and claim, .also by reason of the rn'emises, the defendant has been brought ^^''^"^tifis •' ■■■ ' _ ° negligence into g]-eat public scandal and contempt in his said parish as such as solici- 3-ector, and is there viewed as and believed to be a j^erson who *°^''^- had improperly and without any due or reasonably proper grounds published libels on the said persons which he ^Xc\s not in a position to justify, and then wrongfully and improperly defended an action for the same. And the defendant has been ihereby greatly distressed and harassed in mind and body. The defendant claims £1000 in respect of the matters stated in the set-off and counter-claim. 1. The plaintiffs join issue with the defendant on his Reply, •defence, except that they admit that part of the plaintiffs' ■claim arose whilst they were acting as solicitors and performing .the work in the counter-claim mentioned. 2. The plaintiffs deny that they were guilty of or acted with ■carelessness, negligence, ignorance, or improper conduct as in the 4th paragraph of the statement of defence and counter-claim alleged, and fuither say that the said plaintiffs, before and after the said action was brought, advised the defendant that the said letter was a libel, and advised the defendant that he ought to compromise the said person's claims, and it was agreed between .the said persons and the defendant that the defendant should ■compromise the said claims by apologizing for the said letter, and the defendant apologized for the same accordingly. Differ- ■cnces then arose between the defendant and the said persons as to the terms on which it had been agreed the said apology should be accepted, and the defendant having refused to pay ■certain costs of the solicitors of the said persons, the said action in the counter-claim mentioned Avas commenced. The ■defendant was fully, properly, and carefully advised by the plaintiffs as to the temis on which the said action might be compromised, and refused to compromise the same on the said terms, and insisted that the said action should be proceeded •with. Tl)e plaintiffs did not disclose nor cause to be disclosed to the solicitors of the said persons that the dei'endant's counsel viewed his defence unfavourably, and did not thereby prevent 582 SOLICITOR. Keply to conntcv- claiui. Olaim for solicitors' charses. Defence. the said persons compromisini-- the said claims as alleged. The plaintiffs did not carelessly, negligently, igmn-antly, or im- properly omit to call witnesses who onght to have been called at the said trial, or subpoena witnesses not necessary or proper to be called, and in sul)poenaing and calling witnesses and obtaining the evidence required at such trial they acted with proper skill and care and followed the advice of the counsel retained by the defendant, and fully instructed in the case. 3. The plaintiffs say that in the whole proceedings with reference to the said action they acted with proper care, skill, diligence, and propriety, properly advising the defendant throughout the proceedings, and properly consulting instruc- ting and following the advice of counsel fi'om time to time when necessary, and the plaintiffs deny that the defendant sus- tained the alleged damage or any damage by any negligence or misconduct on their part. Statement of Claim for Solicitors' Charges. 1. The plaintiffs are sohcitors carrying on business at ,. in the city of London. The defendant resides at , in the county of . 2. On or about the , 187G, tjie defendant retained the plaintiffs to defend him in an action brought against him by one E. B., and in defending such action the plaintiffs, at the defendant's request, did certain professional Avork and made certain disbursements, the fair and reasonable charges for which work and payments amount to the sum of £140. 3. The plaintiffs have delivered to the defendant a bill duly signed by them, containing fiill particulars of the said sum of £140, more than a month before the commencement of this action, and have applied to the defendant to pay the same, Ijut he has refused and neglected to do so. The plaintiffs claim £140, &c. Statement of Defence and Counter-claim. 1. The defendant admits that he employed the plaintiffs to- act for him as his solicitors in an action brought against him by E. B. 2. The defendant denies that the plaintiffs' charges are fair and reasonable. The sum of £140 is greatly in excess of tlic SOLICITOR. 583 amount of the proper charges for the jilaintiflFs' services and Defence disbursements. ^I^'t'T- that plain- 3. The plaintiffs conducted the defence of the said action tifls' ser- ueghgently and unskilfully. They did not properly instruct ^'^'j^swere counsel, they omitted to secure the presence at the trial of wit- nesses and documents necessary for the defence; they did not request counsel to call ^Titnesses requisite for the defence, and they did not properly acquaint themselves with the defendant'^ case, and they prepared the same for trial in a careless and im- jjerfect manner. 4. By reason of such negligence of the plaintiffs the defend- ant lost the verdict in the said action, and the plaintiffs' alleged services were wholly valueless to the defendant. And by way of counter-claim the defendant says as follows : — Covmter- 0. The defendant repeats the allegations contained in the 3rd plaintiffs' and 4th paragTaphs of the statement of defence. negligence (). If the defence to the said action had been properly con- ducted the defendant would have succeeded therein. In con- sequence of the plaintiffs' said negligence the defendant was defeated in such action, and was compelled to pay to the plaintiff therein £200 in respect of his claim and taxed costs. In respect of the matters stated in the counter-claim the de- fendant claims £300." Stuiement of Claim hij Solicitor for Sum jjromised on a Contingency in Consideration of Services. 1. By a contract dated the , the defendant promised the CluimLy a plaintiff, in consideration of the trouble which he had taken foras°um about her affairs at her request, and of the services he had payable on rendered, and was about to render her at her request in and i^eQcy^^"^" concerning the snit of (J. v. P. and others, in which the present defendant was plaintiff, to pay the plaintiff the sum of £100 out of the first moneys that should be recovered by her in the said suit. 2. The defendant has recovered a large sum greatly exceed- ing £100 in the said suit, and all times have elapsed and all things have happened necessary to entitle the plaintiff" to be paid tlic S{dd sum of £100. 3. Yet the defendant lias not paid to the plaintiff the said sum or any part thereof. The plaintiff claims £100. >84. SOLICITOR. Defence. Fraud aud undue in- fluence. SUdcment of Defence. 1 . The plaiiititf is a solicitor living at — is a widow residine; at . The defendant 2. At the time of the happening of the events hereinafter set ont, the plaintiff stood in a fiduciary relation to the defendant, and was acting or had acted as her solicitor or legal adviser. 3. The defendant does not admit the said alleged agreement in the statement of claim set ont, and further says that if any such document was ever signed by her it Avas signed at the request of the plaintiff, in whom she had confidence, and that she never read the document nor was it ever explained to her, nor had she any knowledge of its bearing or effect, and she signed it because of the confidence which she had in the plaintiff as aforesaid, and as such solicitor or legal adviser as aforesaid, and it was obtained by him through undue influence and ^^•ithout the defendant having any independent advice. 4. The defendant further says that, if any such agreement as that alleged in the statement of claim A\'as ever made by the defendant, it was an agreement made between solicitor and client respecting the amount and manner of payment for the whole or part of past services, charges, fees, or disbursements in respect of business done by the plaintiff as solicitor or advocate or conveyancer for the defendant as his client in that behalf, and was by both parties to it intended to be and was made in pursuance of and subject to the provisions of the Attorneys and Solicitors Act, 1870 ; and the same is not the subject of an action within the meaning of the 8th section of the said Act. Defence to 4in action for soli- citor's charges. SiaUmcnt of Defence {claim not cjiren) in tin Action for Solicitors Clutrges. 1. The defendant says that he retained and employed the plaintiff to act as his solicitor in and about the preparation of his proof of debt against the estate of Messrs. ^. & A., and to attend a meeting of their creditors on his behalf, and the plain- tiff' requested the defendant to vote for a liquidation of the affairs of the said Messrs. S. & A. by arrangenient, and for the appointment of a trustee of his the plaintiff's nomination, and to assist him to become the solicitor to the said estate ; and the plaintiff promised that in consideration of such voting and assist- SOLICITOE. 585 ance lie would protect the interests of the defendant in the Defence matter of the liquidation -without charge to the defendant. tbn^fOT' 2. The defendant says that he did vote accordingly, and pro- solicitor's cured the plaintiff's nominee to be the trustee of Messrs. S. & '^'^'"■ges- A.'s estate, and the plaintiff* to be appointed the solicitor thereto ; and the defendant says that the charges sought to be recovered ill this action are charges for costs incurred as solicitors for the trustee in the matter of the said liquidation, and not as soli- citor for the defendant. Statement of Defence in an Action for Solicitor'' s Clicirges. 1. In the latter part of Xoveniber, 1872, a committee was Defence foimed of a number of persons called the " Coidsdon Branch of * j^*jj*|)j° the Commons Preservation Society," for the purpose, amongst incuiTed others, of ascertaining by what right certain encroachments *^® ^?^*^' upon open and unenclosed common lands at Coulsdon and else- iiance on a Avhere had been made. Tlie defendants and others were in- s^'^irautee inucl- duced by the plaintiff to subscribe, and they did afterwards sub- scribe certain specified sums to form a guarantee fund. i. The plaintiff" promised to subscribe £100 to the said fund. 3. The plaintiff instituted and conducted a suit in the Court of Chanceiy, in wliich the names of defendants were used by him as plaintiffs and one E. B. was defendant, and the costs sought to be recovered in this action are the costs which the plaintiff' alleges were incurred in the said suit. ■1. The defendants say that they never employed or retained the plaintiff", nor did the plaintiff accept any retainer and em- ployment I'rom them, nor did he ever conduct the said suit according to their instructions or on their behalf, and that the said suit was instituted and conducted by the plaintiff", and the said costs were incurred by him on the credit, not of the de- fendants, Init of the said guarantee fund, and in the exiDCctation that the amounts which sliould be subscril)ed towards that fund Avould be sufficient to indenniily him. 5, Except as herein appears the defendants deny the several allegations in the statement of claim, and say that if any costs were incurred by the phiintiif fwliich the defendants do not admit) the defendants are ix^t in any way liable in respect thereof. r)8G SOLICITOR. Counter- claim to .-iction for solicitor's charges. Claim against a solicitor for negligence. Bj way of counter-claim the defendants say as follows : — 1. On or about the 20th day of June, 187G, the defendants lent to the plaintiif the sum of £1000, to be repaid by the plaiu- tilf to the defendants upon demand, together with interest at the rate of £5 per cent, per annum in the meantime. 2. The defendants haye required the iilaintiffs to repay the said sum, with interest as aforesaid, but he has not done so. The defendants claim £1000, with interest as aforesaid, iu respect of the matters stated in this counter-claim. Statement of Ctahn against Solicitor for Negligence. 1. Plaintiff* is a financial and commission agent in C. Street^ London. Defendant is a solicitor at A. 2. In February, 187G, plaintiff" was sued in the A. County Court by one D. ; and thereupon plaintiff" retained the defendant as his solicitor to defend him, and to act for him in and about the said County Court action for reward paid by plaintiff* to detcndant. 3. In the said action judgment passed for the said D., the then plaintiff", and the now plaintiff" was thereupon adjudged to pay the said I). £19 55. for the amount of the said judgment and costs. 4. The i^laintiff" paid defendant £21, and instructed him as his solicitor forthwith to deduct therefrom defendant's charges as solicitor, and to pay the amount of the said judgment, debt, and costs, and to do all things necessary to discharge the plaintiff" therefrom. Thereupon it became the defendant's duty to pay the said debt and costs to the Registrar of the said County Court or to the plaintiff in the said action, and to in- form the said Registrar that the said debt and costs had been duly paid, so that payment and satisfaction of the said debt and costs might be duly entered on the records of the said Court, in order that the said judgment might not be registered against the plaintiff". The said sum of £21 was more than sufficient for the said purposes. 5. Defendant paid the amount of the said debt and costs to the said D., but he negligently failed and omitted to give notice of such payment to the Registrar of the said County Court ; nor did he do aU or anything necessary and proper to be done in order to prevent the said judgment being registered against plaintiff". SOLICITOR. 58Tr 6. In consequence of the said breaches of duty by defendant, claim the said judgment was duly registered against plaintiff, and agamsta being so registered, plaintiff's name was inserted in the list negligence, of debtors against whom County Court judgment had been obtained and registered, whereby plaintiff was made to ap- pear in the said list as a defaultmg delator, and ^^'as greatly injured in his credit and reputation as a financial and commis- sion agent, and divers persons who had dealt with him refused any longer to do so. The plaintiff" claims : — (1.) £500 damages. (2.) Such further or other relief as the nature of the case may require. Statrmcnt of Defence. 1. The defendant does not admit paragraphs 2 and 3 of tlic Defence, statement of claun, but he says that a verdict in the said action was given for the said D. for £15 15-5. with costs, and the plaintiff was ordered to pay the same within fourteen days. 2. A settlement was thereupon at the plaintiff's request aiTanged in Court between the resijective parties, that in order to save the allowances to the plaintiff"s "fitnesses and the cost of taxation, the smn of £19 4s. should be paid by the said plaintiff" to the solicitor for the said D., and taken by hun for the said D. in full satisfaction of the said debt and all costs. 8. Thereupon the plaintiff for the piu'poses of such settlement gave the defendant the smn of £21, and told him to forthwith pay the said amount of £11) 4.v, to the said solicitor fur the said D. as was agreed, and to deduct the defendant's charges incun-ed in and al)out the said settlement, and hand him, the plaintiff, the balance, all of which was thereupon done. 4. The defendant denies that the plaintiff gave him or that he accepted any such instructions as are mentioned in paragraph 4 of the statement of claim, or that imder the circumstances set out, any such duty was cast upon him as alleged in the said paragi'aph, and says that he paid the said sum of £19 4.s. to the said solicitor of the said I), in Court, in the said plaintiff's presence, and with his consent, and at his request. 5. Defendant denies that lie was guilty of any negligence or 588 STOCK. Defence to brcacli of duty ill and about tlic subject-matter of this action, •lA'inst ■ '^"^^ ^^^ ^"^^ ^^^^^' althougli lie denies that under tiic circum- soiicitor for staiices he was bound to do so, yet in fact he did inform the neghgeuce. Jiegistrar of the said Court, in the said Court, that the amount to be i^aid to the said D. had been settled at £19 4s., and that that amount had been paid to the said solicitor of the said D., and he also says that the said solicitor also communicated the said fact to the said Registrar before leaving the Court. G. The defendant says that if the plaintiff's name was in- serted in the list of debtors as alleged in jjaragTaph G of the statement of claim, it was not so inserted by reason of any negli- gence on his part, or from any cause for ^vhich he is liable, and he further says that any injury sustained by the plaintiff was not the direct consequence of such insertion. The plaintiff takes and joins issue on the defendant's state- ment of defence. Alternative claiDi for breach of contract to take de- Tbentures. When broker may recover "dif- ferences." Stock («). Claim against Defendants in the Alternative for Breach of Con- tract to take Debentures, &c. {h). 1. The plaintiff's are a limited company. '2. The defendant L. carries on business as a financial agent in Paris. (ft) In the absence of a usage to the contrary, a broker purchasing stock to fulfil a contract entered into by him for his principal, but which the principal fails to make good, cannot recover from his principal. {CJiild V. Jlorlcji, S T. K. 614.) But where there is a usage on the Stock Exchange that brokers should be responsible to each other on time con- tracts, and the seller's broker is obliged to pay money in consequence of his principal's default, he may sue the principal for it as money i)aid for the principal {Smith v. Lindu, 27 L. J. C. P. 33.5, Ex. Ch.) : and in such cases it is immaterial whether or not the principal knew of the usage. (S. C, and Grixscll v. Bristmvc, L. 11. 1 C. V. 3(), 19.) In the event of the death or bankruptcy of the princijoal, whereby he will be unable to take XL]) the stock the broker has bought for him on his own credit, the broker is justified in immediately selling the stock and claiming the difference against the bankrupt's estate, subject to a set-off for any loss (/y) As to the correctness of joining both defendants see ante, pp. 7 — 12. STOCK. 53Q. o. The defendant T. is a solicitor. 4. The plaintiffs' company Avas registered on the 17th of AUemative December, 1877, and a chairman, directors, and other officers claim for . breach of Avere appomted, and was incorporated for the pnrpose of con- contract to structino- and comiDletino; a railway throno-h Hondnras, so as to ^^^® '^*^' ", ., ^ . •'. , ■ 1 bentures. connect by a railway communication the Atlantic and Pacific Oceans. 5. The du-ectors of the company invited the public to sub- scribe a sum estimated to be requisite fur the completion of the railway, and some money was subscribed by the public on the secmity of the debentures of the company, but uot sufficient to enable the dii-ectors to proceed ^dth the railway and company ; and in order to induce the directors not to abandon the under- taking, which they proposed to do in consequence of the AA'ant of funds, the defendant L., through the defendant T., who stated that he had authority, and which authority he then in fact had from L. to do so, promised the company that in con- sideration that they by their directors would allot such deben- tures and shares as had been and might be applied for, and would not abandon the purposes for which the company Avas incorporated, and would proceed to employ contractors and incur expenses and liabilities in effecting those purj^oses, and Avould deliAXT to T. on his behalf debentures of the company to the amount of £10,000 in blanlc, that he L. Avould subscribe or procure to be subscribed the smn of £80,000 on the security or the debentures of the company and othenvise. (>. The directors, acting upon the faith of such promises, in the inontli of February, 1.S74, accordingly allotted deljcnturcs and shares to the a]ii)licants for the same, and did not abandon the purposes for which the company Avas formed, and delivered to one B., as agent of the defendant L., debentures of the nominal value of £10,000 in blank. 7. 'J'he defendant L. has refused to perform his ])romisc, and has refused to subscribe or procure to be subscribed to the funds of the company, upon the security of the funds of the arising to the estate from sufh sale being made before the settliiit:; day, the customary time for sclliiiK out stock ou default of the jii-incipal to take it up. (>)>crivuff('our\f Claim. L. 11. 8 Ch. 1)21 ; CroKlexfx Cltdm, L. K. 18 Eq. 182.) )90 STOCK. Alternative Company or otherwise, the sum of £80,000, or any amount of ?"•'"]/ of "^"^^^T- contract to 8. Tlic defendant T. represented to the plaintiffs at the time take de- gf ^\yQ raaking the promise above mentioned, tliat he had authority from L. to make tlie promise for and on behalf of L., but L. has asserted and still asserts that T. had no such autho- rity from him to make the said promise to the plaintiffs, so as to make him liable to subscribe the said moneys or any of them, and the plaintiffs say that in performing the matters and con- ditions, and in doing the acts and things herein stated, they relied upon the promise made by T. on behalf and for L., and upon the said representation of T. L. has refused to perform the said promise, alleging that T. has no such authority, and in the event of the defendant L. being held not liable in respect of the said promise, on the ground that the defendant T. had no such authority as he represented he had as aforesaid, the plain- tiffs will claim the damages from the defendant T. set out in the next paragraph of this statement, and also the relief set out in l^aragraphs 3a and 4a, 9. The plaintiff's by reason of the premises have not only lost the moneys the defendants ought to have subscribed or to have procured to be subscribed to the fimds of the said company aforesaid, but have suffered loss and have incurred and lost the expense by reason of the employment of contrac- tors, and have incurred other expenses in and about attempting to accomplish the objects aforesaid, and have not been able to construct and complete the remainder of the said railway, and have lost the benefits and profits ^vhich the plaintiffs "would have gained from the said construction and completion of the said railway, and also certain valuable concessions granted by the Government of the Re]iublic of Honduras to the plaintiffs have l:)een rendered of little or no value to the j^laintiffs, and the plaintiffs have lieen put to great expense in endeavouring to procure the performance by the defendant L. of the promises made as aforesaid. The plaintiffs pray : — lA. That the plaintiff L. may be adjudged to subscribe for and take debentures of the plaintiffs' company for the amount of £80,000, and to pay to the company, or an officer of the same to be appointed by one of the Judges of the High Court of STOCK. 591 Justice, the sum of £80,000 on receipt of such debentures, less Alternative •any debentures ah-eady delivered to him or his agent, and also jji'each of in addition the defendant L. shall pay to the i)laintiffs all the contract tr> damages they shall have incurred and may incur by reason of i,entures. his refusal to perform the said promise made as aforesaid until he has subscribed, taken, and paid for the said debentures. 2a. That in the event of the relief in paragra]ih lA prayed for not being granted, the plaintiffs claim that the defendant L. shall pay to the plaintiff" all the damages which have re- sulted and shall result from his refusal to peiform the said promises. ;>A." That in the event mentioned in the Sth paragraph of plaintiff's statement of claim the defendant T. may be adjudged and ordered to subscribe for and take debentures of the plain- tiff's said company to the amount of £80,000, and to pay to the •said company, or to an officer of the same to be appointed by one of the Judges of the High Court of Justice, the sum of £80,000 on receipt of such debentures, less any debentures iilrcady delivered to him, and also that in addition the defen- dant T. shall pay to the plaintiffs the damages which may have been sustained by the plaintiffs by reason of the grievances c-omplained of against the defendant T. 4a. That if the rehef prayed for against T. in paragraph 3a is not gi'anted, the plaintiffs claim from the defendant T. all the damages which have and shall result from the committing •of such gi'ievances herein complained of against him. fjA. That they may have such further and other relief to which they may be entitled. Action hy Storlchrolcor aijabul his Principal for " Differences" on Stork Tninsactions on the Exclicmge (a). 1. The plaintiff" is a stockbroker carrying on business at :!, AV. Court, in the city of London. 2. The defendant is a licensed victualler and job master Claim hy cariying on business at E., in the county of Middlesex. broker for 3. On the 10th December, 1875, the defendant retained and "''irt'cr- [)4 STOPPAGE IN TRANSITU. Rejoinder. The defendant joins issue on the 2nd and 3rd paragraphs of the plaintiff's reply. Stoppage in Transitu ('')• Action (ifjainst a Raihvaij Company for failing to stop in Transitu wJwn so ordered hij Owner. C'i:iim 1. The plaintiff is a merchant carrying on business under' against ^^^ gj. ^^ ^^ -^ ^^^^ ^^ p_ ^^ ^.j^^ Works, Lane, for not London. stopping ^_ Qj^ ^.j .y-tih October, 1875, the plaintiff delivered to the defendants, and the defendants received ft'om the plaintiff" as the vendor, certain goods, namely 50 casks of composition pipe, as carriers thereof for reward to them in that behalf, consigned by the plaintiflP to Messrs. H. W. and Company, of Street,- Birmingham, the piux-hasers and consignees of the said goods. 3. The plaintiff" subsequently and before any of the goods had been delivered to Messrs. H. W. & Co. pursuant to the said consignment, and l:)efore they had claimed delivery of the same from the defendants, discovered that the said Messrs. H. W. & Co. Avere in insolvent circimistances, and thereupon on the 22nd November, 1875, none of the goods having been then paid for, he, as unpaid vendor, gave notice to the defendants not to deliver any part of the goods to Messrs. H. W. & Co., but to hold them to Stoppage (^') Stopjiage in frnnslfu is the term applied to a right of an unpaid ill trans it II. vendor to resume the possession, with whieh he has parted, of goods what it is. ^ohl upon credit before they come into the possession of the vendee, who has become bankrupt, insolvent, or embarrassed in circumstances. {Bi.von\. Yates, .5 B. & Ad. HI.''); Bird v. Broim, 4 Ex. 786.) "The term 'insolvent' when it relates to the right of stoppage '/// trajhsitv means a general inability to satisfy ol)ligatioiis evidenced by stopping Where the payment. In such a ease the vendor is allowed to countermand delivery right \» before or at the place of destination, and to resume the possession of lost. the goods. . . . but it is not an unlimited right, for the vendor cannot exercise it if he has parted vnth the documents sufficient to transfer the property, and the vendee upon the strength of them has sold the goods to a bona fide purchaser without notice.'" — Houston's Stoppage' in Transitu, j^. 1. SUEVEYOR. 593 the plaintiff's order, and before any of them were delivered to claim Messrs H W. & Co., the plahitiff required the defendants to re- ag'^-inst . earners deliver the same to him. for not 4. The defendants refused and ne^-lected to do so, and con- stopping -,11- -/Y.? L- 1 intransdtL. trary to and after they had received the plauitifl s notice and order, they on the 17th December, 1875, delivered them to Messrs. H. W. & Co., who had not then paid the plaintiff for any part thereof. 5. Shortly after the said ]\Iessrs. H. W. & Co. had got posses- sion of the goods they closed their house of business at Birming- ham and absconded, and the plaintiff does not know where they are now to be found. G. The plaintiff has never been paid for any part of the said goods, and by reason of the defendants' default in ^^Tongfully delivering them to Messrs. H. W. & Co., as aforesaid, he has wholly lost the said goods, and the price and value thereof, namely £120. The plaintiff claims £120. Surveyor. Rmuneration of a Surveyor and Engineer for Services rendered in connection wifh a projected Railwaij. 1. The plaintiff was in the year 1872 and still is a _ civil ^^J^JJ^J'.J^'^^ * engineer cai-rying on business at , and the deiendant is the ^"^ ^^^^^^^ chairman of the Rail. Co., and a director of other railway neratioa. companies in the north eastern district. 2. The plaintiff in the autumn of 1872 was instructed by the defendant to prepare plans and sections for the purpose of depositing a bill in the then next session of parliament for authorising the construction of a new line of railway in North C, between E. and B., of 11.^ miles in length. This line was intended to be in connection with the N. E. railway system, and was intended to be a ii\al line to the C. E. M, railway, then also Ijeing surveyed i)ri(»r td an npj)lication for a bill in parliament. :',. The i.laiiitiiV in jmrsnimrc <»f snch instructions, in Novem- l)er and December, 1872, surveyed the said line and prepared Q Q -* 596 TENANT. Claim by a surveyor for remu- neration. the necessary plans and sections, which were duly deposited with the bill. 4. The plaintiff subsequently, at the defendant's request, was engaged in cariying the bill through Parliament as engineer of the scheme, including the opposition to the rival scheme of the C. E. M. railway, until ultimately in the month of July, 1873, the defendant abandoned the further prosecution of the scheme. 5. The ordinary scale of remuneration for engineers for the above services is £100 per mile ; and £1150 is now due and owing to the plaintiff in respect of the same. The plaintiff claims £1150. Statement of defence. Statement of Defence. 1. The defendant does not admit that he said or did any- thing which can amount to such instructions as are stated in the 2nd paragTaph of the claim, but says that anything he said or did with reference to any of the matters or things mentioned in that paragi-aph, was said and done by him as director for and on behalf of the W. and M. Union Eailway, as the plaintiff then well knew, and not otherwise, nor in his own interest or on his behalf in any way whatsoever. 2. The defendant denies each and every the allegations con- tained in the 3rd and 5th paragraphs of the statement of claim. Claim by outgoing against incoming tenant for fixtures, ^:c. . left ou the fan a. Tenant. And see Landlord and Tenant. Claim ly outgoing Tenant against the incoming Tenant for Fixtures, &c., left on the Farm ly the Plaintiff at the Request of the Befendant. 1. The plaintiff and the defendant were respectively the out- going and incoming tenants on the F. farm premises situate in the parishes of E. and H., in the county of W. 2. The plaintiff, on or about the 25th day of March, 1877, TENANT. 597 relinquished and gave up for and to the defendant, at his re- claim by quest, certain fixtures and other eifects, and the benefit of work outgoing T -11 1 1 _Li • against done, materials, seeds, manures, crops, tillages, and other thmgs incoming provided and moneys expended by the plaintiff in cultivating tenant and improving the lands on the aforesaid farm, and the sum of of fixtures, £125 12s. M. became due and payable from the defendant to ^^■ the plaintiff in respect thereof. Particidars of the plaintiff's claim have been delivered to the defendant. 3. The said sum of £125 12s-. dd. is still due and unpaid from the defendant to the plaintiff. The plaintiff claims £125 12s. Sd. Statement of Defence. 1. The defendant does not admit the allegations in the 2nd Defence. and 3rd paragraphs of the statement of claim, except in so far as is hereinafter mentioned. 2. The defendant agreed with the landlord of the said farm to take the said farm and premises subject to the payments to the plaintiff as outgoing tenant mentioned in a certain agree- ment in writing under which the plaintiff held the said farm as to be allowed and paid by the said landlord or the coming-in tenant by way of compensation or payment in respect of cer- tain matters specified in the said agreement, the amount of which payments was to Ijc ascertained by arbitration if uecessaiy. 3. The defendant afterwards expressly agi-eed with the plain- tiff' to take certain further effects and matters in or upon the said farm and premises at a valuation. 4. The amount of the payments to be made in respect of all the matters specified in the agTcement mentioned in the 2nd paragraph was ascertained by arbitrators named by the plaintiff' and defendant respectively, which arbitrators also valued the further cff'ects and matters which the plaintiff' had expressly agreed to take as in the 3rd paragraph mentioned. The total amount of the said payments so ascertained by them to be due in respect of the matters in paragraphs 2 and 3 above mentioned was £1)9 13s. M. 5. The defendant has always been ready and willing, and Tender, still is, and has oti'cred to pay to the plaintiff' the said sum 5&8 TENANT. against juconiiri; tenant. Dafence t)f £99 13s. 3^!^ ill respcct of the matters above mentioned, to claim by j^^t tlie plaintiflF refused to accept the same. outgoing G. The balance of the plaintiff's claim, amounting to £25 19.S., is, as appears by his particulars delivered herein, claimed by him in respect of certain ploughing alleged to have been done by the plaintiff upon the said farm and premises. The said ploughing is not specified in the said agTeement above mentioned as one of the matters in respect of which payment or compensation is to be made by the landlord or coming-in tenant to the plaintiff. The defendant never requested the plaintiff to do the said ploughing, nor agreed to pay or com- pensate him for so doing. On the contrary, the said ploughing was ah-eady done when the defendant first ^'ent over the said farm, and the defendant took the said farm from the said land- lord as it then was, subject only to the payments provided by the aboA'e-mentioned agi-eement. 7. The said ploughing, if done at all, was done in an im- proper and unhusbandlike manner, without first cleaning the ground, and was of no use or benefit to the defendant. 8. The defendant brings into Court the sum of £99 13.s. 3how that he is himself the right owner, or that some third person is, by whose authority he, the defendant, acted when he committed the trespass complained of. {Jomx v. Cluipniini, 2 Ex. 803 ; Funirll v. Yoiau/. 3 M. jic W. 288.) It is sufficient if the defendant proves that he is owner of only part of the close, provided the alleged trespasses were committed •on that part only. (Siiiifh y. Ilui/ston, 8 M. & W. 381.) 4. Another defence is that the tresjjass was committed by the leave and licence of the plaintiff. Leave given by parol can generally be withdrawn at any time, and after it is withdrawn the defendant cannot justify any act under it ; but whenever a person has been induced to lay out money upon the land of another, upon the faith of a verbal agree- ment, that in confederation of the expenditure the person laying out his money shall enjoy an easement, privilege, or profit upon the land, the privilege could not at equity, and now cannot at all, be withdrawn by the landlord without making full compensation for the expenditure. (Gale on Easements, .5th ed. 7(1 — 83.) .5. The most common defence to an action for trespass is that the defendant has obtained an easement, as a right of way u})on and over some portion of the plaintiff's land, and that it was in the exercise of such right that the trespass complained of was committed. An easement is created either by grant, or it arises by prescription. Again, easements created by grant are either created by express grant, which must be by deed, or by implied grant. In the former case there can be little diffi- culty ; the pleader sets out the terms of the easement granted, and shows by proper averments on the face of his pleading that the act complained of was an act within the right granted. Grants of easements are iniplicd in the following cases. Ways of necessity .'\ — This arises whenever one man grants land to another to which there is no access except over the land of a stranger, or •over the land of the grantor — in such a case the grantee obtains a right of way over the land of the grantor ; and if the owner of two closes having no way to one of them but over the other, parts with the latter without reserving the way, it will be reserved to him by law as a way of necessity. {East Co. Rail. Co. v. Darlinr/. o C. B. N. S. 821 ; 22 L. J. C. F. 202 ; Guy ford v. MoffuU, L. It. 4 Ch.' App. 133.) But a way of necessity is said to be commensurate only with the existence of such necessity, so that where a jjerson who has a way of necessity over the lands of another is able to apjiroach the land for which the way was used by passing over his own soil, the way is extinguished. {Ilolmcn v. Goriny, 2 Bingh. 76.) It, however, revives again when the necessity for it revives. (Pcar.wn v. Spencer, 1 B. & S. .584) ; and easements of necessity are not extinguished by unity of ownership, {lb.) Contbiuom and wpparmt eaaements.^ — On the grant by the owner of a particular pro])Crty of part of that property as it is then used and enjoyed, there will pass by implication to tlie grantee all those con- tinuous and apparent casements which have been and were at the time of the grant used by the owner of the entirety for the benefit of the parcel granted. If, therefore, a landed proprietor has annexed peculiar ^'('Hdrc, or right of common for tJtirty, or a right of way or watercourse for twenty years next before the commencement of the suit in which the question of the validity of the easement arises, then the easement is not liable to be defeated by proof that it had its origin on this side of the reign of Richard I. ; and when £ijj)'oJit a prendre or right of common has been enjoyed for sixty and a right of way or watercourse for forty years, an indefeasible title is obtained, unless where it is shown the right in question has been enjoyed by virtue of some deed. The time during which a party capable- of resisting the claim is an infant, idiot, non eompas mentis, feme covert. or tenant for life, is to be excluded from the computation of the terms of th irty and ticenty years ; and the time during which any land or water upon, over, or from which any right of way or watercourse shall have been en- joyed, has been held under any term of life or of years exceeding three, is excluded in the computation of the period of forty years, on condition that the claim is resisted by the reversioner within three years after the determination of the term. It must be noticed that this Act is confined to certain classes of easements — rights of way, watercourse, pirofits a lyrendrCy rights of common, light, air ; and therefore a title based upon a twenty years' enjoyment as of right can only be pleaded with respect to a right that is ejnsdevi yenei'is, with one of the rights specified. In pleading prescription at common law, it is enough to aver that the defendant,. ^:c. , has enjoyed the right from time immemorial ; no averment as to the nature of the enjoyment is necessary ; but in pleading under the Pre- scription Act it must be averred that the right was enjoyed uninter- ruptedly during the twenty years' and of right. The enjoyment meant by the statute is " an enjoyment had openly, notoriously, without particular leave at the time, by a person claiming- TKESPASS TO LAND. 607 hoi-ses and carnages on the alleged ground that the same was a claim for 15iiblic highway, and the plaintiff had frequently warned him trespass oa that the same was n(jt a public highway, but the plaintiir s road. private road, and that the defendant must not so use it. 4. On the 5th of March, 1870, the defendant came with a cart and horse, and a large numl)er of servants and workmen, and forcibly used the road, and broke down and removed a gate which the plaintiff had caused to be placed across the same. 5. The defendant and his servants and workmen on the same occasion i^uUed down and damaged the plaintiff's hedge and ditch upon each side of the road, and went upon the j^lain- tiff's field beyond the hedge and ditch, and injured the crops there growing, and dug up and injured the soil of the road ; and in any case the acts mentioned in this paragraph were \s'holly unnecessary for the assertion of the defendant's alleged right to use, or the user of the said road as a highway. The plaintiff claims : — (1.) Damages for the ^n'ongs complained of. (2.) An injunction restraining the defendant from any repe- tition of any of the acts complained of. to use it without danger of being treated as a trespasser, as a matter of right, whether strictly legal by prescription and adverse user or by deed conferring the right ; or though not strictly legal, yet lawful to the extent of excusing a trespass, as by a consent or agreement in writing not under seal, in case of a plea for forty years, or by such writing or parol consent or agreement, contract, or licence in case of a plea for twenty years." (I'er Cur. TicMtj v. Brojvn, -i Ad. k E. S61), 812. See further Cfay v. Shaclicray, 2 M. & Rob. 244 ; Gayfovd v. Moffatt. L. R. 4 Ch. 13:-} ; Partrxhjr. v. '^roft, ;•{ M. & W. 220.) It need not "be averred in the case of prescription at common law that the easement continued down to the time of the suit: l)ut Ihis is essential in cases within the statute. In fact if there were proof of enjoyment for fifty years down to within a few years of action brought, when it ceased thei'C would still not be enough to satisfy the statute. (Parker v. Mifr-hdl, 11 Ad. & H 788 ; Lowr v. Carpenter, C Exch. 825 ; L. J. 20 Ex. 374.) Prexcr'i])tih of the statement of claim, and says that neither he nor any of his workmen or servants did any act or used any violence other than was necessary to enable the plaintiff lawfully to use the highway. Trespass to a Mine, ami Trover of Quantities of Coal. Claim for 1. The plaintiffs are collieiy proprietors and dealers in coal, trespass to ^ possessed of certain lands situate in the borough of W., a mine and ••■ i • i trover of a in the county of L., and are also possessed of certain coal quantity of j-,-^^^Qg Ifmg uudcr or in the vicinity of the said lands. 2. The defendants are also colliery proprietors, and are pos- sessed of certain mines adjacent to the said mines of the plaintiffs. 3. The defendants on divers days and times between the 1st of May, 1875, and the 5th of November, 1875, broke into and entered upon the said mines of the plaintiffs, and dug levels in the said mines and worked the said mines, and dug up and got out and carried away and otherwise converted to their owm use divers large quantities of the plaintiffs' coal, and erected barriers and other obstructions in and upon the said mines of the plaintiffs, whereby the plaintiffs have been prevented from having access to and working their said mines and getting coal therefrom, and have been otherwise hindered in carrying on their business as such colliery proprietors as aforesaid. 4. The defendants, although requested so to do, have refused to remove the said barriers and obstructions, and by reason of TRESPASS TO LAND. (309 the plaintiffs being prevented fi'oni having access to and work- Claim for ing their said mines in manner before mentioned, the plaintiffs t^'^spass to ^ ^ a mine, &c. fiave lost the difference between the value of the coal when the same would otherwise have been gotten by the plaintiff's and the lesser present value of the said coal. a. The cpiantity of coal wrongfully dug up, got out, carried away and converted by the defendants as aforesaid, amounts to between 5000 and 10,000 tons. G. The defendants also trespassed upon the plaintiffs' said mines, and cut and made a roadway through and across the «ame, and carried and conveyed large (piantities of coal, earth, and minerals v\qv the said roadway and through the said mines. 7. By reason of the cutting and construction of tlie said roadway in paragraph G mentioned, the plaintiffs have been and still are prevented fi'om Avorking their said mines on the further or west side of the said roadway, and the plaintiff's have thereby lost tlae difference between the value of the coal when the same would otherwise have been gotten by them and the lesser present value of the said coal. The plaintiffs claim : — (1.) £10,000 as damages in -respect of the trespasses and' 001 n'ersi on s aforesa i d . (2.) The removal at the expense of the defendants of all the baiTiers and obstructions aforesaid. (3.) An injunction, mandatoiy or otherwise, restraining the defendants from any repetition of any of the acts complained of, and ordering them to restore the said mines as far as practicable to the state in which they were before the acts com])lained (jf. (4.) Such further and other relief as the nature of the case may require. Stat nnc 111 of Dcfcnro. 1. The defendants do not adnn't that the ]»laiiitills were or Defence, nrc possessed of any of the lands or nn'nes in the 1st jiaragraph of tlie statement of claim mentioned. •>. The defendants deny that they on tlie Siiid days aiul times or at any time broke into or entered tlie said mines, or dug 610 TRESPASS TO LAND. Defence to claim for trespass on mine, and conversion of coal. levels therein or worked the same, or du"- up or got out or carried away, or otherwise converted to their own use, divers or any quantities of the plaintiffs' coal ; and they furtlier deny that they erected barriers or any other obstructions in and upon the said mines. 3. The defendants deny that they ever were requested or that they refused to remove any barriers or obstructions as- alleged in the 4th paragraph of the statement of claim, and they do not admit any of the other allegations in the said jiaragraph. 4. The defendants deny that they trespassed upon the said mines, or that they cut and made a roadway through or across the said mines, or carried or conveyed large or any quantities of coal, earth, or minerals over the said roadway or through the said mines. ;■). The defendants do not admit the allegations in the Otji and 7th paragrajihs of the statement of claim, or any of them. The plaintiffs join issue upon the statement of defence,, except iw so far as it may contain admissions. Claim for tresxjass in pursuit of "ame. Defence. CJaim for Trcspassliuj on Land in Pi/rsuU of Game \. At the time of the committing of the acts complained of the plaintiff" was and stiU is possessed and in the occupation- of certain lands situate on 8. Common, in the county of C. 2. On or alx)ut the 13th of April, 1876, the defendants, entered and trespassed upon the said land in search and pursuit- of game. The plaintiff claims : — (1.) £50 damages for the wrongs complained of. (2.) An injunction restraining the defendants from any repetition of the acts complained of, {?).) Such further relief, &c. Statement of Defence. 1. The defendants deny tliat they committed the alleged trespasses. 2. The defendants say that the land whereof the plaintiff claims to be possessed, situate on S. Common, was attne time of TRESPASS TO LAND. (JH the alleged trespasses the freehold of one M. N. ; and the Defence to defendants on the said loth of April, 187G. by the leave and ^^^'°^ ^^^. •iTr-v- 1 -IT n 1-1 trespass in licence of the said Jl. JS., entered npon the said land, which pursuit of is the grievance complained of. s^°i*- Claim for Trosjjass to Land. 1 . The plaintiiFs were at the time of the committing of the Claim for gi'ievances hereinafter mentioned in possession and occnpation j-^'^^'^^^ ^ of certain land situate at P., in the parish of C, in the county of L., adjoining certahi land in the occupation of the defendant, and Ipng between such land and a. certain highway called the B. Bank. 2. Before ilay 8th, 187G, the defendant had on divers times broken and entered the said land and passed and repassed thereon ^nth horses, carts, waggons, a steam-engine and culti- vator, doing thereby considerable damage to the plaintiffs' land and crops. 3. On the 8th of iEay, 187G, the defendant by himself and his servants wrongfully broke and entered the said land of the plaintiffs, and broke down a certain fence which had been erected by the plaintiffs on the said land, and trampled and injured the crops of the plaintiffs growing upon the said land, and tlie defendant threatens to repeat and continue the said trespasses. The plaintiffs claim : — (1.) £100 damages for the trespasses by the defendant hereinbefore mentioned. (2.j A perpetual injunction to restrain the defendant, his servants and workmen, from continuing or repeating the said trespasses. (3.) Such frirther relief, &c. of defence. Stafcmcnf of Dfifenco. 1 . The defendant denies that the plaintiffs were at the Statement alleged times respectively in possession or occupation of the said land. 2. The defendant denies the alleged trespasses respectively. 3. At the times of tiic alleged trespasses tliei'e was and of riglit ought to have been a common and ])ublic higliway over the said laud where the alleged trespasses were committed for all persons to g ; Fniit V. Jiittlrxon, 7 Ex. lo2.) In the case of bailments which do not exclude the bailm- from the right of immediate possession, such ns a gratuitous loan or dep(jsit, either the bailor or bailee may inaiutaiu the action. (Xichols v. Jia.itard, 2 C. M. k 11. (i."j!» ; Turner v. JInrdca.'<1h; IH L. .1. C. P. 1 '.):!.) A bailee or other [icrson having a s^iccial properly may, under some 016 TROVER. Claim for conversion of horses. 2. In or about the niontli of ^laj, 1 B. & A. 403), this amounts to a conversion of them, for which the other part owner can sue him in this action — at least, as regards the plaintiff's undivided part in the case of a sale. It is, liowever, now settled that the sale of an entire chattel by a co-owner, which does not wholly deprive the other of the power of repossession, is not a conversion, as it only operates on the undivided share of the vendor ; but it would be otherwise if scjkl in market overt, as that would change the property in the whole chattel. {Harper v. Gockell, L. R. :> Q. B. 422.) It has been held that the removal of entire chattels by one tenant in common without the consent or knowledge of the other, for the purpose of selling and appropriating the proceeds to his own use {seiiihle, as opposed to an actual sale), docs not amount to a conversion, though the removal has created a lien on them by a third partj*. {Jonen v. Brown, 25 L. J. Ex. ;-545.) And it has been held that one member of a friendly society could not maintain the action against another member who removed and delivered to a stranger a box containing money (both belonging to the society), which was deiiosited with the members. {IluUldiu/ v. Camxell, 1 T. R. 658.) Vendee of Another instance of the I'ule that the owner of goods to which he goods not has not the right of immediate i:)ossession cannot maintain this action, paid for is tliat where goods are sold without credit, the buyer cannot n:ain- cannot sue tain trover for them unless he has tendered the price, tliough b}' the vendor for agreement to iturchase, the property has vested in him {Blo.rlium. v. refusal to Sanders, 4 B. k. C. 1)41; Mrrtinda'le \. Smiih. 1 Q. B. 389; Pa East, 53.S.) A person may of course dis- pose of goods fraudulently bought, l>iit the sale is invalid, and a person to whom they afterwards come thnnigh various regulai' and bond Jide sales, and wlio breaks them up, is liable in trover. {Fowler v. Jlollins, L. It. 7 Q. B. (JIG, 033. Ex. Cli. ; aff. in H. of Lords.) But whci'e goods are placed in the hands of a factor for sale, a i)crson whom the factor authorises to sell them and reindnirse liiniself for the Mere pos- session sutHcient against wrong- doers. What constitutes couversiou. When mis delivery 1. carrier a conversion 3V Assignee or vendee of goods from jier- son haviuj no title. 618 TROVER. Claim for cor version of horses. Destruction when a conversion. When de- mand and refusal a conversion. ?). The defeiKlaiit broke them in uiul kept them up to the sale of them by him as hereinafter mentiouecL "VVliere goods attached in defen- dant's hands. Refusal Ijy agent. What is a ileniand. Measure of lamage. amount of bills given for them to the factor, is not liable in trover. (Sfirrnrhl v. /fnhlni, i B. & C. 5.) 'I'he destruction of property by the defendant is a conversion if done witli the intention of destroying or appropriating it. In the hands of a bailee the destruction through accident or mere carelessness of the bailee is not a ciniversion : but it is otherwise if so destroyed while in the wrongful possession of the defendant, though not with his privity, or if it is damaged while he is exercising a dominion f)ver it inconsistent with, the rights of the real owner, (//mid v. (hrn/. 2\ L. J. C. P. 97.) Di'iiKind (uid ri[fii.s((l.'] — A demand and refusal are evidence of a con- Ycrsiou, but this is only presumptiA-e evidence, which is capable of being rebutted, as by showing that at the time of the demand the defendant could not deliver the goods. {Smifh v. Yoinu/, 1 Camp. 441.) Again, if a person finds a chattel, a refusal to deliver to the real owner until he proves his title is not necessarily evidence of conversion. {Guntoii V. Nurse, 2 B. & B. 447: Chirh v. Chaiiihrrhiin., 2 M. & W. 78.) In sucli cases, if it appear that there was a hoiut fide doubt as to the title, and that only a reasonable time was taken for the purpose of clearing the doubt, it would not be a conveision. (Ihirroiiglix v. B((>jnr, 29 L. J. P^x. 185. 191, per Bramwell, B.) So a refusal by a servant of a company to deliver goods without tlie order of the company is not a conversion. (Alc-randrr v. iSoiifJwi/, 5 B. & A. 247.) Again, where a person on a. demand made on him to deliver a document docs not deny the right of the person demanding it, but says it is in the hands of his solicitor, this answer is not evidence of a conversion. (Totrnc v. Lewis, 7 C. B. 608 ; and see Cnnot v. J/ur/?ics, 2 N. C. 448.) And where the goods which are the subject of the action have been attached by the order of a Court, in an action against a person wlio had the goods in his possession as hirer and deposited them with the defendant, a refusal to deliver them by him is not a conversion. {Vcrndl v. Itohhison, 2 C. M. & E. 495.) This decision seems inconsistent with the case of P'tJlntt \. WilJ/hison, 34 L. J. Ex. 22, Ex. Ch., where the defendant, a wharfinger or warehouse- man, who had goods in his possession which had been attached, and whose clerk, on a demand made of them by the plaintiff, to whom the depositor had given a warrant for them, merely said there was a difficulty, as there was an attachment, and the defendant himself merely asked for time, but did not refuse to deliver, was held guilty of a conversion. Kefusdl hy agent, .Vv.] — A refiisal by the defendant's general agent is not sufficient to constitute a conversion, but if an agent acts under the si)ecial instructions of the principal, his ]-efusal is sufficient. {Pothonier v. Iknvson, Holt. N. P. H83.) But it has been held that a refusal by the shop servant or by the wife of the defendant is sufficient without any express directions from him. (Cattcrall v. Kenyan, 3 Q. B. 310.) WJiat neeess((ry fa eonstitiite a demand.']— A demand of the value of the goods is sufficient. {Thoinpsan v. Shirley, 1 Esp. 31.) This is, how- ever, a very old case. It has been held that a demand to re-deliver in the same condition as when it came into defendant's possession is not sufficient. {lluxlnrarfh v. Taylar, 3 Q. B. G99.) And a demand of '• fixtures " is not sufficient as rcgai'ds things which are not fixtures. Measure af daiuayes.l—The amoinit of damages is the value of the chattel, and the price jjaid by a solvent vendee on a hona fide sale is the (niteriou of value. (France v. Gaudet, L. K. 6 Q. B. 19!), 204.) But the amount realized on discounting a bill converted by the defendant is not such a test, and the jjlaintiff is entitled to its full amount. (uUsager v. (Jluse, 10 M. & W. 57().) Where an unpaid vendor is sued for conversion by the vendee, the measure of damages is the difference between the TROVER. (JlJ) 4. On the 2Gth April, 187."), the said A. "\V. tiled a j^etition claim for in the County Court of W., holden at K., for a liciuidation of his •conversion of horses. agreed price and the actual value. {Chlnrry v. Viall. 2'J L. J. Ex. 180.) And where a pledgee converts the security wrongfully, the measure of damages in an action against him by the owner is the difference between the amount advanced and the actual value. {Joluisun v. Stear. 83 L. J. C. P. 130 ; approved of in Donald v. Sucldlng, L. R. 1 Q. B. 585 ; and IluUUlay v. IMgdte, L. R. 3 Ex. 2'J9. Ex. Ch.) In trover for fixtures which have been severed, their value when severed as ojiposed to their value as incident to the structure, is only recoverable. {McGreyor v. Jlh/h, 21 L. T. X. S. 803, per Keating, J. ) Special damages over and above the value are, however, recoverable. {Bodhnj v. liriinoldx, 8 Q. B. 779 ; Mood v. Bell, 25 L. J. Q. B. 148. 231. But see Balmc v. Jlntton, y Bing. 477, Ex. Ch.) By 3 & 4 Wm. 4, c. 42, s. 29, the jury is empowered in this action to give damages in the natiire of interest above the value of the goods. Measure of JamaM. Defexces. Denial ofjilaintiff's title.'] — The defendant when he is not a bailee or agent may set up the title of a third person (Lealie v. Loceday, 4 M. & Gr. 972) ; and he may do so where he is an agent or bailee, when the bail- ment has been determined, or where a third person claims the goods. {Blddlc V. Bond, 34 L. J. Q. B. 137.) The right of a third person cannot be set up when such person has abandoned his j-ight. {Bettely v. Bad, 4 Q. B. ."j11. And see Nicliohon v. Coopri', 27 L. J. Ex. 393.) A mere wrongdoer cannot set \\\> tlic jus trrtii. {Jeffries v. Great Western, Buil. Co., 25 L. J. Q. B. 107.) Lien.'] — A right to a lien on the goods, whether special or general, and a right to the possession of them until the claim is satisfied, is a good ankei-s. Solicitors. Carriers. Insurance brokers. Factors. Waiver or ilissoliition of lien. iiflairs 1)}' aiTaii^'einent with his creditors, in iDursuance of the JJankrnptc'j Act, 18(!I),aiid under the proceedings had under it, the plaintiff' -was aj)pointed trustee of his property. A general lien may be proved by evidence of express agreement between the parties or of their mode of dealing, or of the general usage of other persons engaged in the same empkn'ment or trade of such notoriety that it may l)e assumed to be known to the owner of the goods. The instances of the usage should be numerous and important, {lliixliforth V. JLidficld, G East, o2G.) The following persons have a general lien : — Wharfingers for their general balance (Sj^eartt v. Ilnrtly, 3 Esp. 81) ; calico i)rinters ( Weldoii v. Gould, 8 Esp. 268) ; bankers for their general balance upon securities, which, however, do not include title deeds (Wylde v. Rndford, 33 L. J. Ch. 51, 53) ; nor securities con- tained in boxes deposited at the bankers for safe keeidng only, and to which he has not access. {Lecse v. Martin, L. K. 17 Eq. 224.) Solicitors have a general lien on papers coming into their hands in the course of professional business. {Stevenson v. Bl'ilielocJi, 1 M. & S. 585.) But a solicitor tf) the official liquidator of a company being wound up, has no lien for his costs on the file of proceedings in the winding-up and the documents relating thereto (Ex parte Pidbrook, L. K. 1 Ch. (J27) ; nor to the books of account of a bankrupt as against the trustee. (See Gen. Rules on Bankruptcy, 187U, r. 110.) As to the lien of cai-riers, see Wiltxhire Iron Co. v. Great ^]'estern, Hail. Co., L. E. 6 Q. B. 77G, 777, Ex. Ch.) A usage of carriers to retain goods under a general lien as against the consignee will not interfere "with the consignor's right to stop in transitu. ( Oppenliehn, v. Russell, 3 B. & P. 42.) And a right of lien against a consignor will not justify rctentioir as against the consignee. [Butler v. Woolcot, 2 N. 11. Gl.) By the !)7th section of the llailway Clauses Consolidation Act, 1845, railway companies who have incori)orated tliat Act into their special Act, are empowered on non-papnent '• of tolls due to them in respect of any carriage or goods'' to detain and sell such caiTiage or goods, or in case of their removal fr(jm the company's premises, any other carriages or goods belonging to the party liable to pay siich tolls, and out of tlie proceeds to retain the amount due for tolls, and the charges and expenses of the detention and sale. This provision only applies to the property of per.sons or companies running their own waggons, &c., on the company's lines, and not to goods carried by the company as carriers. ( Wallis v. London i\ Soutli-Western Hail. Co., L. E. 5 Ex. 62.) Insurance brokers have a general lien for balances even as against an agent, unless they have notice that he is an agent. (JIaanss v. Mender- son, 1 East, 335.) Factors have a general lien on goods which come into their hands as factors. {Dixon v. Stansjield, 10 C. B. 31)1).) iSee as to the effect of an unauthorized pledging, ..^c, by factors or agents of goods in their possession in creating a lien in favour of the pledgees, &;c., 4 Geo. 4, c. 83 ; G Geo. 4, c. !)4. and 5 & G Vict. c. 3!). See also Fucntes v. Montis, L. R. 3 C. 1'. 2()8, 275 (judgment of Willes, J.) ; Jewan v. Whit' W(jrth, L. E. 2 Eq. 692 ; Macknev v. Gorst, L. K. 4 Eq. 315. The English consignee of a West Indian jilantation has a lien on the plantation in respect of a balance due to him from the proprietor of the plantation. {Chambers v. Davidson, L. II. 1 C. P. 296, 305.) When a general lien has been judicially established in the case of any class of i^ersons or traders, it becomes a part of the law merchant, and judicial notice must be taken of it. {Brandao v. Barnctt, 3 C. B. 519, 530.) Waiver or dissolution of lien.'] — If a person on a demand of the goods, instead of relying on the lien, claims them as his own, or claims to hold them for a debt due to a third party, he thereby loses his lien. (See TROVER. 621 conversion of liorses. 5. The plaiiitiflf afterwards, in or about the month of claim for August, 1875, requu'ed the defendant to deliver to liim the said horses, but he thereupon refused to deHver them, and has since sold the said horses, and converted the proceeds of the said sale to his own use. The plaintiff, as trustee as aforesaid, claims : — (1.) £100, the value of the said horses. (2.) £50 damages for their detention. Statement of Defnwe. 1. The defendant says that before and at the time of the Defence making of the agreement hereinafter mentioned, and before and ^"**^?f 'T at the time of the filing by the said A. W. of the said jietition for lien^ &c. li({uidation, the defendant had a lien on the said horses to the amount of £109 4s. for money payable to the defendant by the said A. W. for and in relation to the breaking-in and training of the said cob horses, and as incidental thereto the necessary feeding, keeping, and taking care of the same by the defendant for the said A. W. at his request. Boardmnn v. S'dl, 1 Camp. 410, n. ; and Bii-loi v. lUchnrds, 4 M. & Gr. rj74.) So if a person havinnj a particular lien claims to hold the goods for two distinct liens (Kerford v. Motidd, 28 L. J. Ex. a03) ; or for an old balance as well. {Jones v. Tavlcton, 9 M. & W. 615.) Parting with the possession generally destroys the lieu {Seatf v. JVrn-iiijjtun. 1 M. i: Rob. 252) ; even though they afterwards come lawfully into the creditor's possession {llarfhj v. Ififchcorl-, 1 Stark. 408 ; Jows x.l'curlc. Ib.,5;>6); or though they are taken by the sheriff in execution at the lien holder's suit against the owner {.hicuh.-i v. Lataur, 5 Bing. 130) ; or where, after delivering them to a carrier, he afterwards stops them hi framitii. (Snrlf V. P?/)>i. 1 East, 4.) A shipowner entitled to a lien on goods until xhii delivciy of good bills for the freight, having taken and negotiated a bill for tlie freight, this was held to have destroyed the lien. {Jlornca.stlo V. Fdrran, 3 B. & A. 4!)7.) If the goods arc fraudulently taken out of the possession of the person having a lien, if he without force retakes possession his lien revives. ( Walhtcr V. W(i()df/afr, Ky. & M. li)3.) Though an insurance broker who parts vn\h the policy on which he has a lien loses the right, yet if it again comes into his possession his right revives. {Led v. Jiariuird, 8 'J'aunt. 14;).) Though the claim by ^nrtuc of which a person is entitled to a lien l)CC(jmes barred l)y the Statute of Limitations, this does not destroy the lien. (S/M-firs v. Jlarthj, 8 Esp. 81.) Stoppage in tran.iitii.'] — The right which an unpaid vendor has of stopping goods in frauKitu to the purchaser before delivery may be set u]) in an action l)y the vendee against the vendor. 'J'lie subject of stoppage in fr/in.iifii has been referred to under the title of ■■ Stoppage in frnn-tifii." Hcc further, LicJiharron- v. Jfuson, 1 Smith's Lead, ("as., 7th cd.. 750. Lien, how waived or lost. Wlierc goods fraudu- lently re- moved. Bar of debt docs not affect lien. Stopijage In transiUi. 622 TROVER. Defence to claim for conversion of horses. 2. Whilst the said liorscs were in the ])osscssioii of the de- fendant for the purposes aforesaid, and before the filing by the said A. W. of the said petition for liquidation, an agTeement in writing was made by and lietween the said A. W. and the defendant that the defendant should have liberty to dispose of the said cob horses for the most money that he could o])tain for the same, and retain out of the purchase-money any sum which he was entitled to by way of lien on the said cob horses iu' resj^ect of the said debt or any part thereof. ?}. The defendant sold the said horses in pursuance of and under and by virtue of the said agreement, and of the authority thereby given to the defendant in that behalf, as afore- said. 4. The defendant further says, that the proceeds of the said sale were not sufficient to satisfy the defendant's said debt^ and that the defendant retained and still retains the same under and by virtue of the said agreement, and the authority thereby given to the defendant in that behalf as aforesaid. Rr])Jf/. Reply. I The 2>l^intiff joins issue on the defendant's statement of defence. 2. If an agreement was made that the defendant might sell the horses, as alleged in the 2nd paragraph of the defendant's. statement of defence, it was upon the terms that the defendant should not sell the same elsewhere than at M. The said sale was elsewhere than at M., and was wrongful. Rejoindej'. Rejoinder. The defendant joins issue upon the 2nd paragraph of the jilaintiff's reply. Claim for conversion of i^art of a cargo. Trover for Part of Cargo sold io pay for Eppairs of VesseJ, anil rnVseqapntliJ resold to Defendant. 1. In or about the inontli of Octol)er^ 187G, the plaintiff' caused to be shipped on board the Swedish barque " Magnolia," then lying at the port of M., 2bb2 barrels of extract of bark, the property of the plaintiffs, to be conveyed in the TROVER. Q2o- said ship on a voyage from M. aforesaid to Loudon, and Claim for there delivered to the plaintiff's, certain perils and casualties conversion. of part ot excepted. a cargo. 2. The said ship sailed from j\[. afoi'esaid, with the said goods on board, on the said voyage, and in the course of the voyage put into the port of St. G.'s Bay, Newfoundland, and the master of the said ship MTong-fiiHy, improperly, and without any authority from the plaintiffs delivered a large portion of the said goods to certain pci'sons at St. (r.'s Bay aforesaid, and the said persons ■\^Tongfully, improperly, and in fi-aud of the plaintiffs, obtained possession of the same and converted the same to their o^ii use ; and the same were afterwards shipped from St. Gr.'s Bay aforesaid, and subsequently in this country, in a vessel named the "Canning," consigned to the defendants, and were received and taken possession of by them without any title thereto or any property therein as against the plaintiffs or other\\'ise. 3. The plaintiffs, whilst the said goods were in the possession of the defendants, applied to them to deliver the same to the l)laintiffs ; but the defendants wrongfully refused and still refuse to deliver the same. 4. The defendants have converted to their own use or wrong- fully de])rived the i)la in tiffs of the use and jjossession of the plaintiffs' said goods. T). The defendants have sold the said goods. The plaintiffs Avill also claim to recover the proceeds thereof as money re- ceived by the defendants to the use of the plaintiff". The plaintiffs claim £2000 as damages. Stat cm ml of Defence. 1 . The defendants admit that the " jMagnolia" sailed from M, Defence, with the said goods on board mentioned in the 2iid paragrapli f)f the statement of claim, and that in the course of the voyage she put into St. (J.'s Bay. 'J^hey also admit that the master of the said ship delivered a large i)ortion of the said goods to certain ])ersons at St. (J.'s JJay under the circumstances herein- after mentioned. 2. By reason of the j)erils and casualties excepted, as men- tioned in paragi-aph J of tlie statement of claim, tlie " M." and (;24 TROVER. Defence to claim for convei'sion of a car<'o. hcT cargo becaiiic and were in iinniinent danger, and tliereujxjn it became and was necessary for licr captain, in order to save tlie sln'ji and cargo or any ]iart thereof, to discharge the sliip of lier said cargo. It was impossible for such discharge to be effectual without the assistance of ]iersons at tlic said St. Cl.'s Bay; and the master being unable to obtain money or credit, or to ]irocure such assistance otherwise, and being unal)le to connnunicate with the owners of the cargo, or to obtain their directions, agreed with the said persons, in consideration of ilieir assisting in the said discharge, to grant, transfer, and deliver to them the portions of cargo in respect of which this action is brought as the reward and price of such assistance, and of the salvage of the residue, and such assistance ha\-ing been rendered by such persons, the said master thereupon, in pursuance of such agreement, did grant, transfer, and deliver to such third persons the said portions of the said cargo. ;k AVithout such assistance and discharge as aforesaid, the entire cargo and ship would have been lost. 4. The defendants became and were 'bona, fide purchasers for value of the said portion of the said cargo from the said persons. 5. They became such purchasers without notice of the pre- mises and before any repudiation by the plaintiff of the said ti'ansfer. 0. Save as aforesaid, the defendants deny the allegations contained in the 2nd paragraph. They also deny the allega- tions in paragraph 4. 7. The defendants admit the demand and refusal alleged in paragraph 3, but deny that such refusal was wrongful. Claim for conversion of plain- tiff's goods. Claim for Conversion of PJainiiJf's Goods and Monei/ paid hi/ PJaintiff'for Defendant. 1 . The plaintiff is a schoohnaster residing at H., near M. 2. The defendant resides at C, in the county of Y. ?). On the 2Gth day of August, 1870, the plaintiff, who had a- ^^•ife then living, went through the ceremony of marriage with the defendant at B. Church, in the said county of Y. 4. The defendant was at tliat time tenant of a farm and premises situate at C. aforesaid, and after the said ceremony of TEOVER. (525 maiTiage, the plaintiff M'ent to live ^vith the defendant njion the claim for said farm. conversion ,,..„,, , . - • 1 0^^ chattels, 5. Alter the plamtm had commenced to reside upon the said &c. fann, he purchased with his own moneys a large quantity of firnn stock, that is to say, four cows, two young sturks, one pony, thirteen fowls, two baiTows, and various other articles of stock, to the value of £144, and the same remained in the pos- session of the plaintiff, and were placed in and upon and were used in cariying on the business of the said farm, until the events in the th paragraph hereinafter mentioned. G. On the 12th day of December, 1870, the defendant charged the plaintiff with having assaulted her, and upon this charge the plaintiff was tried, convicted, and imprisoned for two calendar months. 7. At the time of the said imprisonment, the plaintiff was possessed of a large quantity of goods and money, that is to say, two diamond pins, one diamond ring, one gold guard, two car- buncle studs, one turijuoise brooch, a quantity of wearing apparel, one large box, two carpet bags, one bag containing £5G in gold, one purse containing £3 13s. Gd. in silver, and other valuable articles, and the same were at the time of the said imprisonment left by him upon the said farm. 8. At the expiration of the said term of imprisonment, the plaintiff was again arrested, and ultimately, on the 23rd day of March, 1871, was convicted on a charge of bigamy, and sentenced to five years' penal seiTitude. 9. During the absence of the j^laintiff from the said farm, while undergoing the said terms of imprisonment and penal servitude, the defendant seized and converted to her own use, and WTongfdly deprived tlie plaintiff of the use and posses- sion of the iJaintiff's goods, that is to say of tiie said farm stock in the 5th paragraph hereinbefore mentioned, and also of the goods and money in the 7th paragraph hereinbefore mentioned. 10. At the expiration of the said term of penal servitude, the plaintiff demanded from the defendant a return of the said stock and goods or their A'alue, but the defendant refused to return the same. 11. During tlie time that tlie plaintiff resided upon the said farm as aforesaid, the plaintiff paid money for the defendant at s s 620 TROVER. conversion of chattels Claim for hcr rcqucst to tlie ainonnt of i'loO, and the same is now cine and owing from the defendant to the plaintiff. Particnlars of the said sum of £150 have been delivered to the defendant. The plaintiff claims : — (1.) As to the seizure, detention, and conversion of the said stock and goods in the !)th and 10th paragi'aphs stated, a return of the same or their value, and £200 damages for their detention. (2.) As to the residue of the statement of claim, the sum of £150. (3.) Such further and other relief, &c. Action against PawnhroTcer for Loss of Ptcilge, stating Cause of Action alternativelg in Trover and Detinue. Claim for 1. The defendant is, and at the time herein referred to was, I0S.S, orcon- j^ pawnbroker, carrying on business at . version or ^ »/ o tletentionof 2. The plaintiff, at the latter end of the year 1875, in con- a pledge. gideration of a sum of money lent and advanced by the defendant to him, delivered to and deposited with the defendant and the defendant received from the plaintiff certain silver plate, and amongst other things a silver racing trophy or cup of the value of £110 by way of pledge and security for the money so lent and advanced by the defendant to the plaintiff and interest thereon, to be redelivered to the plaintiff on his repaying to the defendant the said money and interest. 3. In consideration of such deposit the defendant undertook to take ordinary care of the said trophy and cup, and to re- deliver the same as aforesaid. 4. The plaintiff has repaid to the defendant the said money and interest. 5. All things happened and were done and conditions were fulfilled and times elapsed necessary to entitle the plaintiff to have the defendant to redeliver to him the said trophy or cup, and to a performance by the defendant of his said under- taking. G, The defendant did not use ordinary diligence in the care and safeguard of the said silver racing trophy or cup, and by reason thereof the same became and was lost. 7. The defendant did not nor would he redeliver the said silver racing trophy or cup to the plaintifl" on his repaying to TROVEK. 627 the defendant the said money and interest as aforesaid, but claim for has refused and refuses to do so. IS^^'or' 8. In the alternative the plaintiff says that the defendant detention of ^wrongftiUy detained and detains ft'om the plaintilf the said ^ v^^'^s^- silver racing trophy or cup. The plaintiff claims : — Trover for a Pony ; Drfince that the Pomj was tJw Dffe/ida/ifs, and had deen fraud icJcnttij ot)tainedfroni him. 1. The plaintiff is a horse-dealer, and the defendant is claim for also a horse-dealer, both living and carrying on their business ^fYpmm at . 2. On the 2nd of February, 187G, the plaintiff was the OAvner of a certain pony which he had purchased fi'om H. H. L. 3. The defendant, on the said day, on a fiilse claun that tlie said pony was his property, seized and took and drove away the said pony, and has converted the same to his own use, and has deprived the plaintiff of the possession thereof. The plaintiff claims £50, the value of the said pony. Statement of, Defence. 1. As to so much of tlie statement of claim as alleges the Defence, seizure, taking, and driving away a pony of the i)laintiff as alleged, and the conversion of the same, and the depriving of the plaintiff of the same and possession thereof, the defendant says that the said pony was not the plaintiff's as alleged. 2. The said pony was on and before the 21st January, 187(5, the property of the defendant, and on or about the 21st Januaiy, 187G, the said H. H. L. fraudulently obtained the same from the defendant under colour of a purchase for £45, with the preconceived fraudulent intention of not paying for the same. 3. As soon as the defendant discovei'ed the said fraud, and before the 2nd of February, 187(1, lie disalHnned the said pretended purchase. 4. The alleged sale to the ])]aintifrby tlie said H. II. L. took ])lace, if at all, on the 2nd February, 1S7(>, and not before. o. The defendant contends that the said H. H. L. at the time of such alleged sale had no property in the said ])ony, and 028 TEOVEE. Defence to claim for conversion of a pony. claim for Conversion of tobacco. that no property passed to the plaintiff hy such alleged sale, and that the pro]:)crty in the said pony remained and remains in the defendant. 6. The defendant in the alternative further alleges that the plaintiff at the time of his alleged purchase of the said pony knew that the said H. H. L. had dishonestly come by it. 7. If necessary the defendant will allege the said pony to have been obtained by the said H. H. L. by larceny and by trick,, and that the alleged sale to the plaintiff' was not in market overt. 8. The defendant says the said pony was of the value of £45,. not £50. Actio// for Con/rrs/'o/i of ToMcco. 1 . On or about the 3rd of December, 1875, the plaintiff, who' is a tobacco manufacturer, bought of one H. and became the al)solute owner and entitled to the possession of fifty hog-s- hcads of tobacco, then lying in bond at the London and St, Katharine Bock. 2. Afterwards H., without any authority from and in fraud of the plaintiff, affected to transfer the tobacco to the order of the defendants, and delivered to the defendants the dock- warrant or other receipt issued by the dock company in respect of the goods, and the defendants otherwise became possessed of the dock-wan-ant and tobacco in ^Tong of the plaintiff. H. afterwards absconded. r>. The plaintiff applied to the dock company for delivery of his tobacco ; but they, following the ordinaiy course of busi- ness, refused to comply with his request until the dock-wan-ant should be produced to them duly signed or indorsed in his the plaintiff's favour. 4. Thereupon the plaintiff applied to the defendants for the dock-warrant and for delivery of his tobacco, but they reftised to part with or deliver the same to hun, and claimed and still claim to retain the same as security for advances alleged to have been made by them to H. at the time of the delivery to them of the dock-warrant, as in the 2nd paragraph mentioned. The plaintiff claims : — USE AND OCCUPATION. G29 Use and Occupation (^0- Claim for Use and Occupation. 1. The plaintiffs are a railway company who were authorised claim for by the M. E. (T. H. E.) Act, 1804, to take for the pm-poses of "«« and '- ^ occupatiou. (a) Use and occiiputloii.'] — This action is given by 11 Geo. 2, c. 19. s. 14, ■which provides that it shall be lawful for landlords, where the agreement is not by deed, to recover a reasonable satisfaction for the lauds, tene- ments, or hereditaments held or occupied by the defendants, in au action for the use and occu[)ation of what was so held or enjoyed ; and if on the trial of such action, any parol demise, or any agreement (not being by deed), whereon a certain rent was reserved shall ajjpear, the plaintiif shall not therefore be non-suited, but may make use thereof as evidence of the quantum of damages to be recovered. The plaintiff must prove — 1. That the defendant came in under him or acknowledged his title by payment of rent or otherwise ; 2. The occu- pation by the defendant ; and :i. The amount of rent either expressly reserved or due on the footing of a ipuiiittuit mcrnit. Title.'] — If the plaintiff has not demised or given possession to the de- fendant, it would seem he must show that the legal estate was vested in him at the time from wiiich he claims. Mortgagees may maintain this action. {Ron-son v. EicJic, 7 Ad. & E. 451.) Tenants in common may join in the action where rent has been paid to their joint agent, that being ■evidence of a joint letting. {Last v. I) bin, 28 L. J. Ex. i)4.) The plaintijf's title is generally established by the production of a writing or agreement, which is proved in the usual manner, or in its absence, by i)ayment of rent by the defendant or other circimistance, such as his submitting to a distress. It would appear that there need be no interest or reversion left in the plaintiff to maintain this action, as where a person demises all the residue of his term to the defendant {Pollock v. Stacij, ii Q. B. 1033), though it has been held that such a demise operates as an assignment {Beardmuii v. Wilson, L. K. 4 C P. 57.) Occiqxitlon of (1cJ'i-ndant.'\ — A person who has agreed to take premises but has not entered, cannot be sued in this action, as an occupation, cither actual or constructive, is necessary {Townc v. U Ilrlni-'u-h, 22 L. J. C. P. 219) ; and it seems that a constructive occupation mil not be suffi- cient in the absence of an actual demise. {Afhius v. Jltnnj^ilircif. 2 C. B. •«i54.) An occupation prior to the date of assignment of the reversion to the plaintiff' will not enable him to recover for use and occupation prior ±0 the assignment. {Mortimer v. Prcrdi/, 3 M. & W. 002.) Adverse pos- session by the defendant will not enable plaintiff' to maintain the action as the occupation nmst be with his permission. ['I'cn- v. Jonrx, 13 M. & W. 12 ); but a tenancy at sufferance, arising from occupation after ■cxidiy of lease is sufficient, though the defendant continues to hold as tenant to a stranger. {llcUirr v. Sillco.r, 19 L. J. Q. B. 295.) Occupa- tion by a third person by permission of defendant, or b^^ his tenant or assignee, is sufficient, provided in the latter case the plaintiff has not recognised the assignee as his tenant. [Shins v. JJillon, 1 Ir. 11. C L Ex 227.) If two persons sign an agreement to become tenants, and one enters both can be sued for use and occupation. {(Urn, v. JJimtjiij. 4 Ex. (Jl.) But where one of two joint lessees holds over, the other is not liable for Ihe occupation of the former. [Brupcr v. Crofts, 15 il. & W. lUC.) It is not necessaiy that tliere should be an express contract creatin"- The oiigin oftheactiou of use and occupation. What the plaintifl' must prove. What title the plaintiff must have. Occupation by the defendant essential. cso USE AND OCCUPATION, (^laim for use and occupation. their said Act certain wavehouscs and premises in Gravel Lane, Aldgate, in the city of L., which belonged to the de- fendants. The rela- the relation of landlord and tenant, as it may be implied ; as where a vendee tion of enters after contract, and the sale goes off, and he remains in occupation landlord afterwards. (See Crouch v. Trrr/vnning, L. E. 7 Ex. 88.) But the action and tenant 'w^i^l i^ot lie wliere the defendant enters under an agreement for a lease, may he which, it turns out, the plaintiff cannot grant for want of title, (liitni' implied. ^«'^ v. Wriffht, 1 C. & P. 589.) One co-tenant who occupies a house or farm alone taking the full benefit thereof, without excluding the others, is not lialjle to them for use and occupation. {McMalion v. Uiirc/idl, 2 Phill. Eep. 127 ; Jlrti- (In-son V. A'ason, 12 Q. B. 986.) Defences. The expiry 1. E.rpiry of j)liiinfifi's title.'] — If before the occupation in reference tO' of plain- which the claim is made, the i)laintiff's interest has expired, this is a tiff's title good defence, assuming that the defendant has paid his rent to the a defence. person claiming as against the i)laintiff, as where the plaintiff's interest has become forfeited to the lord of the manor under whom the defendant has commenced a fresh holding and paid rent, after having renounced the plaintiff's title. (Balls y. Wcstn-ood, 2 Camj). 11), or where he has paid rent to a hond fide claimant really entitled to the jjremises, under whom he has commenced a fresh tenancy. {Mount: iioy v. Collier. 22 L. J.. Q. B. 121) ; or where he has paid the rent to a mortgagee of the plaintiff under legal compulsion. {Iliclniian v. Mi/eJd/i, 28 L. J. Ex. 310.) What 2. Surrender acceptcdr\ — If the landlord has acce])ted another person amounts 3,s tenant, and the latter has entered with the consent of the defendant, to such a this operates as a surrender [Nickelh v. Atlierstone, 10 Q. B. 944), even surrender though the demise be by deed. {Davison, v. Gent, 26 L. J. Ex. 122.) of a term as If the landlord has accepted the key of the jn'omises, this operates as a constitutes surrender without the acceptance of another tenant. (Dodd v. Acltlorn, a defence. (> M- --^ G. 672.) Or, if after refusal of the key, which the tenant leaves behind, the landlord enters and puts up notice that the premises are to be let. {Phene v. Fopplen-ell, 31 L. J. C. P. 235.) Anything which amounts to an agreement % the tenant to abandon and by the landlord to resume possession, creates a surrender. (1^.) Where a tenant on lease has quitted the demised premises before the exjuration of the term, and has sent the key to the landlurd with the intention of giving up jiossession,- the mere fact that the landlord has received the key and attempted unsuccessfully to re-let does not estop him from alleging that the tenancy still subsists. And if afterwards, before the expiration of the term, the landlord re-lets the premises, the surrender by operation of law takes effect fi'om such re-letting, and does not relate back to the original receipt of the key. {Oaatlcr v. Henderson, 46 L. J. Com. Law, 607^ explaining Phene v. Po^jplenrll.) In certain cases the consent of the landlord is not necessary to com- plete the surrecder, as where furnished lodgings are let in a state unfit for occupation on account of being infested with vermin, and the tenant leaves in consequence. (Smith v. 3Iari-ahle, 11 M. & W. 5 ; Canqjhell v. Wenloch, 4 F. & F. 716 ; Wilwn v. Finch Mutton, 46 L. J. 489.) This would not apply to the case of an rinfurnished house. (12 M. & W. 68, 86.) A landlurd omitting to repair pursuant to his covenant whereby the premises become unfit for i)rofitaljle occupation would not exempt the tenant from liability for rent in the event of his quitting. (Eoscoe, Ev. l.Sth ed. 345.) Eviction.'] — An eviction by the landlord of the tenant or his sub-tenant is a defence {Prentice v. Elliot, 5 M. & W. 606 ; Burn v. Phelp.t, 1 Stark, USE AND OCCUPATION. (331 2. On the 5tli March, 18C8, the plaintiffs and the defendants claim for entered into an aoreement for the piu'chase by the plaintiffs "^® ^"'^^ J. f X occupation. J>4) ; and where the premises are let at an entire rent, eWction from part by the landlord, when the tenant quits the residue, is a good defence as to such entire rent while the eviction continues. {Morrison y. Chad)v'icl\ 7 C. B. 266 ; Upton, v. Toivnend. 25 L. J. C. 1*. 44.) But a distinction must be observed between expulsion from a part of the premises demised and from something over which the tenant has only an easement, as in the latter case he would not by quitting exonerate himself from liability to an action for use and occupation of the other premises. (^Fellat v. Booscij, 31 L. J. C. P. 281.) And an eviction bij a at ranger by title paramount from part of the premises is only a ground for having the rent appor- tioned. A threat of expulsion by a person entitled to possession and a conse- quent attornment or gi^^ng uj) possession to him are equivalent to an eviction. {Matjor of Poole v. Wltitt, 15 M. .Sc W. 571 ; Carpenter v. Parlicr, 27 L. J. C. P. 78.) But it is no eviction that the tenant left the premises in apprehension of a distress by the superior landlord. [Jlicla'tt v. Tulliel-, 6 C. & P.. 66.) A mere trespass is not an eviction. {Ilodgsliin v. Queenhoronijli, Willes, 13, n. (A).) See as to what constitutes an eviction. Upton v. Toivnend, supra ; Wheeler v. Stevenson, .SO L. J. Ex. 46 ; Pellat v. Boosey, supra. Illegality.'] — See several cases cited under the head of lUegalitg, ante, pp. 355-6, bearing on this subject. Payment.'] — Where there has been an assignment of the reversion the payment of rent to the lessor before notice of the assignment is a good defence. (4 Anne, c. 16, s. 10.) But payment to the lessor before the rent day is no defence if before the rent day the defendant received notice of the assignment. {De yicholVs v. Saunders, L. E. 5 C. P. 589.) Where payment has been made in advance and no notice has been given before (juarter-day, the advance becomes payment. (Cook v. Guerra, L. Pt. 7 C. P. 132.) Payment of rates, which the tenant may deduct from the rent under 32 & 33 Vict. c. 41, s. 1, or under 37 & 38 Vict. c. 54, ss. 5, 6, 8, !), or of the land-tax, is in effect payment by the tenant 2}'>''> tanto of the rent next falling due. It cannot be deducted from rent falling due subse- quently, at least as regards the land-tax. {Cumniing v. Bedhorough, 15 M. & W. 438.) See as to the right of deducting such sums, liyan v. Thorn- Hon, L. K. 3 C. P. 144. The exception in s. 8 of 37 & 38 Vict. c. 54 to the right of a tenant of a mine to deduct one-half of the rate newly imposed by that Act and paid by liim from the rent payable to his lessor " unless he has specifically contracted to pay such rate in the event of the abolition of such exemp- tion," does not take effect in favour of the lessor, unless the lease has in terms anticipated the imposition of this new liability and thrown it on the tenant ; and a covenant to pay the rent "free of and from all rates, taxes, tithe rent-charges, expenses, and deductions whatsoever, jiarlia- mentary, parocliial, or of any other nature," will not deprive the tenant of bis right to make the deduction given by the above section, (^l)uhe of Deronxhire v. The Barrow Ileniatite Steel Co., Limited, 46 L. J. 435, App., affirming decision of Court below.) The amount realised by a sale under a distress would be a defence so far as such amount, but not the value of the goods distrained. If the goods have been sold at too low a rate, the defendnnt's remedy was formerly by a separate action (^Effard v. Burgess, 1 M. &; Uob. 23), but now an unjustifiable sale may be made the subject of a counter-claim. Eviction by the land- lord from part of the premises a defence. Threat of expulsion, when equivalent to an eviction. What i)aj- ment is a defence. Taxes which tenant may deduct from the rent. C32 USE AND OCCUPATION. occupation. Claim for from tlie defendants of the said warehouses and premises in "!1^"*!;.„ Gravel Lane for the sum of £8800. 3. By the said agreement it was {Infer alia) agreed that the purchase should be completed and possession given to the l)laintitfs' company on the 2!)th September, 18(;:), up to which time all outgoings were to be paid by the vendors, and from which time the company were to recei^'e all rents and profits, and that the company should pay interest on the said sum of £8800 at certain rates therein agreed upon from the 29th September, 18G7, until the comj^letion of the said purchase. 4. The purchase of the said premises was not completed till the 13th March, 187(1, although the i:ilaintiffs were ready and anxious to have completed the said purchase at an earlier date. 5. The plaintiffs paid the said purchase-money by instal- ments on various dates prior to the said 13th March, 187C, and interest also on the same according to the said agreement of the 5th of March, 18(;8. C. The defendants refused to give up possession of the said premises on the completion of the said purchase, and alleged that they were entitled to six months' notice fi-om the plaintiffs prior to their l;)eing obliged to gi^-e up possession of the said warehouse and premises. 7. The i^laintiffs contended that no such notice was requisite to entitle them to the possession of the said warehouse and premises, and therefore issued their A^arrant to the Sheriff of Middlesex to jiut them into possession of the same. 8. Possession was accordingly given to the plaintiffs on the 3rd of April, 187G. 0. The defendants have continued in the use and occupation of the said warehouse ft'om tlie said ,5th of March, 18G8, until the 3rd of April, 187C, but have paid no rent for the same. 10. The plaintiffs claim rent of the defendants for their use and occupation of the said premises at the rate of £150 per annum as the fair value of the same from the said 29th Sep- tember, 18G9, until the said 3rd April, 1870. The plaintiffs claim £978 l\s. for the above-mentioned use and occupation by the defendants of the said premises. USE AND OCCUPATION. (,33 Claim lij Oicner of Land for C'omj)ensafion agreed to he jKiid III) Defendant for Occii_[)ation of Land pending a Sale to Mm. 1. The plaintiffs are the owners of certain land situate in the Claim for l^arish of Stockton, in the county of Diu'ham, which the cle- occupation fendant desired to purchase of the plaintiffs. under a SUGCltll 2. The defendant entered into and upon the said land, and agreement, became and was possessed thereof, and so remained and con- tinued from the month of June, 1874, until the commenccinent of this action. 3. On or about the 10th day of Januaiy, 187G, it was agreed between the plaintiffs and the defendant that the plaintiffs should sell and the defendant should buy the said land, and that the defendant should and would pay to the plaintiffs, as •and by way of compensation for the defendant's use and occu- pation of the said land, money equal in amount to interest at the rate of £5 per cent, upon the sum of £1903, which was the amount of the money to be paid by the defendant for the said land, if he became the purchaser thereof, calculating such interest from the month of June, .1874, until the defendant became such purchaser of the said land, or ceased to occu])y the same, and that a formal agreement for such purchase and sale of the said land slKjuld be executed by the plaintiffs and the defendant respectively. 4. The plaintiffs did all acts and all things happened and all times elapsed to entitle the plaintiffs to have the defendant perform his part of the said agreement as aforesaid. 5. The defendant broke his said agveement in this, that he has refused and omitted to execute such formal agreement as afore- said, and before any breach thereof by the plaintiffs, he wholly and absolutely renounced and abandoned the said agTcement, and refused then or ever to perform the same, and then wrong- fully discharged the i)laintiffs from the ftn'ther performance of the same, contrary to the said agreement in that behalf, whereby the ])laintiffs have lost the expense which they incurred in ])rcparing such fjrmal agreement, and in prejjaring to perform the said agreement oji their part, and have Ijcen ])ut to expense ill endeavouring to ])rocure the ])erf()nn;ince there(jf by the de- fendant, and luue lost the use and piMfits ol" the said land, and ()o4 WAREHOUSE, (Miiiiu for use :aiii1 occupiitiou under a special ajtrccmcnt. the said laud has been greatly deteriorated and lessened in value. C. At the time of the commencement of this action the sum of £277 ICs. liad become due and payable from the defendant to the ijlaintiflFs for and in respect of the money agreed to be paid for such compensation to the plaintiflFs for the defendant's occupation of the said land as aforesaid, and the same is still Avholly unpaid. 7. As an alternative claim, the plaintiflFs claim that they are entitled to recover from the defendant the said sum of £277 16s. as compensation to them for the defendant's use and occupation of the said land during the time aforesaid, irrespective of the said special agTeement. The plaintiffs claim £277 IGs. Wager. Wager. See p. 459— 4G0. Waiver. Waiver. See Release. Claim for warehouse rent. Warehouse. Claim for Warehouse Reni. 1. The plaintiff is a warehouseman carrying on business at Victoria wharf, in the city of London. 2. On or about the 1st of May, 187G, it was agreed by and between the plaintiff and the defendant that in consideration that the plaintiff would keep and take care of 80 hogsheads of sugar, the property of the defendant, in his warehouses at Vic- WARRANTY. g:35 toria wharf aforesaid, the defenclaut would pay to the plaintiff Claim for the sum of £5 per mouth as warehouse rent. wareliouse o. On the 1st of May, 187G, the j^laiutiflF received into his custody the said 80 hogsheads of sugar, and has ever since taken proper care and charge of the same. 4. On the 1st of June, 1877, there was due to the plaintiff the sum of £05 in respect of warehouse rent. 5. The defendant has not paid the same or any portion thereof. The plaintiff claims £05. "Warranty (a). Aciloa daimiinj Damages for Breach of Warranty on Sale of Goods. 1. The plaintiffs are India-rubber and waterproof garment Claim for manufacturers carrying on business at Street, ]\[. breach ot •' '^ wan-anty .^ ^ on sale of goods. {a) Wdrrnntij of title.'] — If a man sells goodsaffirming them to ])e his own, Generally that amounts to a warranty of title. But there is no implied warranty no implied of title on the bare sale of a personal chattel, {lidtjuch'n v. ILitvlei/, warrautv I/. II. 2 C P. 02") : Mark'!/ v. Atfnih(iriiiu/]i, ?, Ex. ")()().) The same hokls of title." on an exchange of chattels. {La Xeurclle v. JVoursc, 8 Camp. 851.) To make the seller liable when it turns out he had no title, it must be shown that he was guilty of fraud in the transaction ; and the concealment by the seller of defects in his title known to him amounts to fraud. {Early 'When a V. Garrett, 9 B. & C. 9:i2.) Failing this it unist be shown that there was person is an express warranty, or an equivalent to it, by his declarations or conduct ; liable who or that there was a usage of the particular trade by whicli such warranty syU^ with- is impliedly given. On the sale of goods in a shoj) kept professedly for o^t title. their sale, there is an implied warranty that the purchaser has a right to keep the goods. In such a case the vendor sells the goods as his own, and that is c'luivalent to a warranty of title. {Per Curiam in Morlnj v. Attenhoriiiuili, .supra.) The same holds with regard to goods sold in the defendant's warehouse. (Eirhlioltz v. Jianiirxter, 17 C. B. N. S. 708 ; iU L. J. C. 1*. lun.) It appears to be different with regard to unredeemed pledges sold at an auction by a pawiib]-oker. {Morleij v. Attenhorou(jh, xupra. ) And xemhle the same holds with regard to' goods bought at any auction. (See Batjualeij v. Jluwlei/, .vrpra.) Where the plaintiff bought some goods from the defendant at an auction at which the defendant had himself purchased tliem, it was held that he could not recover the i)rice paid for them as on a warranty of title. {Chapman v. Hpellcr, 14 Q. B. (i2!.) An executory contract of sale of an unas- certained chattel may import a waiianty of title. (ISee per Park, B., Morleij v. Attrnboroiiiih, .iiij/ra.) Where there is no warranty and the 636 WARRANTY. Claim for Lreacli of varrauty. 2. The defendants arc manufacturing chemists at D., in tlie county of L. "Warranty of quality. Wliere goods in existence the maxim <-aveat •emptor applies. So wlicre a known and defined article is bouglit. When a warranty of quality will be implied. Implied warranty in the case of trade marks. title proves bad, the purchaser may recover the price paid as upon a failure of consideration. (Morlri/ v. Attoihurough, siqjra.) Wiirmnti/ of qiiaUfi/.'] — The following projiositions were laid down in the judgment in Juiii-i< v. Just. L. li. 3 Q. B. 202, r't xrq., in Mdiicli the authorities in support of them will be found : — 1. Where goods are vm c.s-.sy', and maybe inspected by the buyer, and there is no fraud on the part of the seller, the maxim caveat emptor applies, even though the defect is latent and not discoverable on exami- nation, at least where the seller is not the grower or manufacturer. This apjjlies to the sale of meat in a meat-market as to which there is no warranty that it is tit for human food. (Eiiirrtonx. Mathetrx, iil L. J. Ex. 139 ; 7 H. & N. .58G.) It would apjiear to be diiferent where the goods are consigned under an agreement. Thus, where B., a wholesale provision dealer in London, contracted to send weekly from London by rail to W., a retail tradesman at Brighton, a quantity of Ostend rabbits, the cost of the railway carriage as well as the price of the rabbits being paid by W. : held that there was an implied warranty by B. that the ral^bits vshould be fit for human food, not only when delivered at the railway station in London, but when in the ordinary course of transit they would reach W. at Brighton, and until he should have there a reasonable opportunity of dealing with them in the course of his business. {Beer v. Wall'er, 4(5 L. J. ()77.) It also applies in the case of sale by saiiq^le if the latter truly represents the bulk. {Smith v. Jli/r/Jw.s; L. 11. 6 Q. B. 597.) 2. On the sale of a definite existing chattel specifically described, the actual condition of which may be ascertained, there is no implied war- ranty of quality. 3. Where a known, described, and defined article is ordered of a manufacturer, to whom it is stated to be for a particular puri^ose on delivery by him of the article as known, described, and defined, there is no implied warranty by him that it will answer such purpose. 4. But where a manufacturer or dealer contracts to supply an article which he manufactures or in which he deals to be applied to a particular purpose, so that the buyer necessarily trusts to his skill or judgment, there is in that case an implied warranty that it is reasonably fit for the purpose to which it is to be applied. '). Where a manufacturer undertakes to supply goods manufactured bj"- himself or in which he deals, but which the vendee has not had the opljortunity of inspecting, it is an implied term in the contract that he shall supply a merchantable article. G. Where the contract is to supply goods of a specified description which the buyer has not had tlie opportunity of inspecting, the goods must not only answer the description, but must be also merchantable or saleable under that description. By the 25 & 2() Vict. c. 88 (Merchandise Marks Act, 1802), ss. 19, 20, on the sale or contract to sell (whether in writing or not), any article with any trade-mark on it, or on what it is contained in, or with any description or indication of the number, quality, measure, or weight, or of the place where it was manufactured or produced, there shall be deemed to have been a warranty of the genuineness of the trade-mark, or of the truth of the description, &c., unless the contrary shall have been expressed in writing, signed by or on behalf of the vendor, and delivered to or accepted by the vendee. And by sect. 22 a right of action is specially given to the per.^on aggrieved by the forging or improper use of trade-marks. WAERANTY. 637 3. The plaintiifs from time to time ordered fi-om the defend- ants, and the defendants supplied them with hypo, as the Claim for breach of warranty .- Warranty In/ afjcnt.'] — An agent or servant employed to sell a thing has not generally an implied authority to waiTant. {Brndi/ v. Todd, 9 C. B. N. S. 592 ;'S0 L. J. C. P. 228.) Qinrrr in the case of a foreman alleged to be a general agent. (JZ>.) It appears, however, that in the case of servants of horse-dealers they have such an implied authority, and their employers will be liable on a warranty given by them, even where there have been express directions not to warrant, unless they have notified that the general authority is limited. (Picke/inq v. JBusl', 15 East, 45 ; Howard \. SIte/rnrd. L. R. 2 C. P. 148.) This doctrine does not apply to the case of an agent or servant of a person not a horse-dealer entrusted with the sale of a horse on one jiarticular occasion. {Brad// v. Todd, sit/jra.) Where a thing is already sold a warranty given of its ([uality in consideration of the purchaser having bought is not binding, the consideration being executed, and therefore incapable of supporting any other promise than such as the law imi)lies, and in such cases it only iuiplies a promise to deliver on payment. Brrach of ivarranfij.'] — If the breach of the warranty of quality be denied, the plaintiff must give positive proof that the thing sold was not at the time of the xair of the description or quality warranted. In pleading it need not be averred, and if averred it need not be proved, that the defendant knew of the defect {WiUiamsoii v. Alliao/i, 2 East, 44(3), unless where it is necessaiy in order to establish fraud against the seller on an implied warranty of title. A breach of warranty of a specific chattel sold does not entitle the purchaser to rescind the contract and return the chattel and sue for the price, but only entitles him to an action for damages for breach of the warranty. {Street v. lilai/, 2 P). & Ad. 456 ; Gomprrtz v. Denton, 1 0. & M. 207.) And the purchaser could not in such circumstances defend an action for the price on the ground of the breach ; though he may give evidence of it in reduction of damages. Dainaf/cii.'\ — The following decisions will probably be of use to the pleader in setting forth the claim for damages in this action : — If the chattel has been returned and accepted, the plaintiff will be entitled to recover the whole ])rice ; if kept, the difference between the real value and the price ; and if resold, the difference between what he gave defendant and the price on resale. (Kee Cann-ell v. Coarc, 1 Taunt. 5G().) This case related to a warranty of a horse, but the decision apiilies to other chattels. Where tlie defendants broke a warranty in not sending hemp that was merchantable, the plaintiff was held entitled to recover t lie difference between what the hemj) was worth when it arrived and what the same hemp would have realized if it had been shipped in a proper state. (.A/w/w v. Jiixt, L. K. ;{ Q. B. 197.) Where the purchaser of a horse with a warranty resold with a warranty, and, the horse proving unsound, was sued on his warranty, and gave the seller, the defendant, the option of defending, but on his failing to do so defended it himself, it was held that he was entitled to recover fi-ona him the costs of the action. {Len-is v. I'eahe, 7 Taunt. 153 ; and see lio/fv. Crmich, Ij. P. )] Ex. 44.) In actions on warranties of horses, the plaintiff maj' in some circum- stances include a claim for their keep. If the vendee on discovering the defect, tenders the horse tf) the vendor, he may recover for keep for such time as would be recpiired to sell him to the Ijcst advantage. {.IfcA'rnzif: v. f/anroek, lly. k. M. 4:!(;.) So where after notice that the horse may be taken away by the vendor, he is resold by the vendee, the When a servant may warrant. A warranty after the sale not binding. It need not be averred the defen- dant knew of the de- fect. Where specific chattel sold breach does not entitle vendee to rescind the contract. The measure of damage.' 638 WARRANTY. Claim for In'each of warrant}'. ]ilaiiitiffs required it, at prices agreed upon between the defendants and the plaintiffs, and the defendants warranted •Conse- • defen- old, leaky, rotten tlu-oughout, and of no value or use whatever. 6. The said barge has since her delivery to the defendant earned no money. And by way of set-off and comiter-elaim — 1. The defendant repeats the allegations contained in the 2nd, 3rd, 4th and 5th paragTaphs of the statement of defence, and says that by reason of the plaintiff's breach of wan-anty mentioned in the 4tli j)aragraph, and the misrepresentation mentioned in the 5th paragraph, he has sustained heavy losses by being unable to cany out certain beneficial contracts for the conveyance of goods into which he had entered. The defendant claims : — (1.) £50 damages. (2.) The retm:n of the £20 paid by him as mentioned in the 3rd paragraph of the defence. (3.) Such fiu"ther and other relief, &c. Watercourse. Water- course. See Easements. Ways. Ways. See Easements — Trcsjmss. T T 2 644 WORK AND LABOUR. Claim for work done imiler building contract. Work and Labour (ti). Claim 0)1 a Building Contract. 1 . The plaintiff is a contractor and bnilder. 2. On or about the l?>th day of June, 1873, by an agreement in writing, it was amongst other things agxeed by and betweeix Contract for work, &c., need not be in writing. Aliter if not to be performed within a year. In building contracts architect's certificate a condition precedent to pav- juent. Where a written contract and also a claim for " extras " the former mnst be produceci Where thing being made is de.-^troyed ]>efore com- pletion. (ff) A contract for work and la.bonr or work and materials does not as a rule require to be evidenced by writing. It is not within the Statute of Fraiids, unless, indeed, as sometimes happens, it comes within the clause of the 4th section with reference to contracts which are not to be performed within a year. Tlien, of course, writing is requisite ; but only when the contract will necexsnrilij continue beyond the year. In Sorich v, Strawhyldije, 2 C. B. SOS, the plaintiff undertook to board a child at the defendant's request at so mucli a month, " as long as the defendant thought proper,"and although this contract in fact continued for more than a year, inasmuch as, at the time it was made, by its terms, it would not necessarily continue so long, it was held that writing was not necessary. In an action for work done, the plaintiff must aver in his claim and prove the performance of all conditions precedent on his part ; and in the case of building contracts it is almost always a condition precedent to the right of payment that the architect should give his certificate as to the amount, &c., of work done ; and until the architect gives this certificate no payment can be enforced. It is no dispensation of the condition that the certificate was withheld by fraud and collusion with the defendant {JUl?u;r v. Field, 5 Exch. 82!)), although it is true that on such a state of facts an action of tort for fraud might lie against the architect and defendant, one or other or both. {Battcrhuvy \. Vt/sc, 2 H. & C. 432 ; L. J. 32 Ex. 177 ; Ladbrohe v. Barrett, 4G L. J. 708.) ' The arcliitect or surveyor need not certify in writing, unless expressly required by the contract to do so. In Morgan v. Birnie, 9 Bing. 672, a letter from the architect to the plaintiff inclosing the bills with an approval of the charges was held not to be equivalent to a certificate of appi-oval of the work done. In building contracts time is not usually of the essence of the contract. (^Lamprell v. BiUericay Union, 3 Exch. 283.) Where there is a written contract and the plaintiff claims for extras in addition to the charges under the contract, the written contract must be produced, for it is only the written contract which can show what really are extras. {V'uicentY. Cole,M. & M. 257; Bvxton v. Cornish, 12 M. & W. 426.) And it has been held that even a distinct promise by the defendant to pay for the work done would not do away with the necessity of producing the contract. {Vincents. Cule, svjyra.) But where a man is employed to do work under a written contract, and a separate order /c*?' other work is afterwards given by parol during the continuance of the first employ- ment, the wiitten contract need not be produced in an action for the second work. {Beid v. Butte, M. & M. 413.) If the defendant has received no benefit from the work on account of the improper and unskilful way in which the plaintiff did it, the latter cannot recover anything for his labour. {Farnan-orth v. Garrard, 1 Camp. 38 ; Denew v. Daverell, 3 Camp. 451.) Questions sometimes arise whether, where a particular thing is destroyed or injured while being made to the order of another, the workman or the person for whom the thing is being made will have to bear the loss ; and on this point the follow- ing distinction exists : — If the contract is entire for the performance of a specific work for a specified sum, so that the performance of the whole WOEK AND LABOTJE. (54,5 the plaintiff and the defendant, that the plaintiff should to the Claim for satisfaction of J. L., to be certified in writing, do certain un^ieV""*' work therein specified in the erecting for the defendant of building certain warehouses and offices in P. Street, M., and that the '^'^^ ^^^^' ■defendant should pay the plaintiff" for the same the sum of £3099. 3. It was also subsequently agreed by the plaintiff and the defendant that the plaintiff" should do certain other work for ±he defendant, and that the defendant should pay to the plaintiff* such amount therefor as should be certified by the said J. L., who then was and acted as architect for and on behalf" of the defendant. 4. The plaintiff did and completed the whole of the said work to the satisfaction of the said J. L. certified by him in ^n•iting•, iind from time to time the plaintiff received payments from the defendant amountmg in the whole to the sum of £3,200. 0. On or about the 15th day of January, 1875, the said J. L. duly certified in wiiting that the further sum of £739 As. lO^d. was due to the plaintiff for and in respect of the said work, and all conditions were performed and all things happened and all times elapsed necessary to entitle the plain- tiff' to have the said sum of £739 4.y. lO^d. paid to him by the defendant, yet the defendant has not paid the same, but has ■only paid the sum of £552 18s. d^d. on account thereofj leaving a balance of £18C C)S. Id. owing to the plaintiff*. The plamtiff' claims the sum of £186 G«. Id., and interest thereon from the 15th March, 1875, until judgment. Claim for WorJc done under a Contract, and atso for Extras. 1 . The plaintiff' is a painter and house decorator, carrying on Claim for business at , in the county of . ^^"^^ ''""'^ •' under a 2. In or about the month of June, 1877, the plaintiff entered contract into a contract with the defendant, and was einijloyed by him 'Jf ** .^"^ „ ■of the work bargained for and agreed to be done is a condition precedent Who bears to the right of payment for any part of it, the workman will be deprived tlie loss— of all legal right to remuneration if the woi-k is destroyed by accident employer or Ijcfore it has been completed {Apidrby v. ,Vi/rr.s; L. 11. 2 (J. P. crA ; ;5G workman. L. J. C. 1'. '^'.H) ; but if the workman is ciilitlcd to payment from time to time as the work proceeds, the destruction (jf the work before its com- pletion will not deprive tlie workman of his hire. {Menetone v. Atltawes, a iJmT. 151)2 ; TrijjjJ v. Armitage, 4 M. & W. G'jy.) 64G WORK AND LABOUR. Claim for work (lone imder a contract and for "extras." in the way of liis (tlie plaintiff's) said business to do certain work, consisting for the most part of painting and decorating in a certain house situate and being No. — , in the county of M., at and for the sum of £80. 3. The plaintiff duly performed the said work, and did all tln'ngs necessary to entitle him to receive the said sum of £80^ but the defendant has not paid the same. 4. The plaintiff was also employed by the defendant to do' certain extra painting to the basement, and certain decoration to the drawing-room walls, besides that comprised in the said contract, and the plaintiff did the same accordingly, and there is now due to the plaintiff in respect thereof £20. 5. All the prices and charges are either in accordance with contract, or are fair and reasonable. The plaintiff claims £100. Olaim for salary. Claim by a Commercial Traveller for his Balary. 1. The plaintiff is a commercial traveller. The defendants are wholesale di'ajDcrs at M. 2. On the 1st of February, 1876, the defendants engaged the plaintiff as their traveller for the M. and Y. district, at a salar}^ of £150 a year, payable half-yearly. 3. The plaintiff, in accordance with this agreement, entered into the service of the defendants, and continued therein until the Gth of August, 187C, and all conditions precedent have been performed to entitle the plaintiff to receive payment of hia said salary. 4. On the said Gth of August, 1876, one half year's salary was- due and in arrear, yet the defendants have not paid the same or any part thereof. The plaintiff claims £75. Claim for remunera- tion for literary work. Claim for Remwieration for Literary TforZ-. 1. The defendant P. is the chairman and treasurer of the Council of the Association for the , an association having- objects as are denoted by its title. The defendant N. is a gentleman of pri-\'ate means. 2. By an agi-eement made in the month of April, 1873,, between the plaintiff and the defendant N., who was duly WOKK AND LABOUR. 647 authorized by the defendant P. to act as his agent in that Claim for behalf, it was agreed that the plaintiff should be employed by ^.-^^ ^^j. ' " the defendant P., at an agreed rate of remuneration, to assist literary the defendant P. by his literary labour in the advocacy of the views and in the accomplishment of the objects of the said Association. 3. Thenceforth until or about the month of December, 1875, the plaintiff, in accordance with the said agreement, composed many speeches to be made use of by, and they in fact were made use of by the defendant P. and other members of the said council, and also ^\TOte many [pamphlets which were published by the defendant P., and the plaintiff devoted much time and labom* in assisting the defendant P. to further the objects of the said Association. 4. Up to the month of December, 1875, there accrued due to the plaintiff, by \'irtue of the agTeement mentioned in the 2nd paragi'aph in respect of the said work and labour, the sum of £210. Particidars have been delivered to the defendant P. 5. All things have happened and times have elapsed neces- sary to entitle the plaintiff to a performance by the defendant of his part of the said agreement, and to pa^TQcnt of the said agreed rate of remuneration, yet the defendant P. has not paid the same, nor any part thereof. 6. In the alternative, the plaintiff says, that in consideration Alteruaiive that the plaintiff' would enter into the agreement in the 2nd ''''"l^ , ■'• ° against paragi-ajih above mentioned, the defendant N. promised the second de- plaintiff that he was authorized by the defendant P. to act as ^^'^^^'^'it ^ '' alone. his agent in that behalf, and the plaintiff, relying upon the pro- mise of the defendant N., did enter into the agreement as above mentioned, and did the work and rendered the services under it, as above stated. 7. The defendant N. was not authorized by the defendant P. to make the said agreement, or to act as his agent in that behalf, by reason whereof the plaintiff has not ])een able to enforce the performance of the said agreement by the defendant P., or to obtain from him remuneration for the work and semces which he has done and rendered. The plaintiff claims : — (1.) £210 from the defendant P. ; or. 648 WRONGFUL DISMISSAL. Claim by an author for work done. (2.) In the alternative, £210 damages from the defendant N. in respect of the matters of complaint set forth in the Cth and 7th paragraphs. Claim ly cm Author against a Firm of Fublishers. 1. The plaintiff is a writer of fiction. The defendants are general publishers carrying on business at Street, in the city of London. 2. On the 30th of July, 1873, it was agreed by and between the plaintiff and the defendants that the plaintiff should write for the defendants a work of fiction, to be published by them in monthly shilling parts, and that the plaintiff should receive, as remuneration for his literary labour in that behalf, the sum of £150, to be paid, one half upon the pubhcation of the first of the said monthly parts, and the residue upon the publication of the last of the said monthly parts. 3. The plaintiff' wrote the said work of fiction, which was duly published by the defendants in monthly shilling parts, and all things have happened and times elapsed necessary to entitle the plaintiff to be paid the sum of £150 above men- tioned, yet the defendants have not paid the same. The plaintiff claims £150. Wrongful Dismissal («). Action hy yearly Servant for Damaycs for Dismissal, daiminy in the alternative Arrears of Wages. Claim for a 1. The defendant is a timber merchant trading as J. A. & Sons at . wrongful dismissal, An in- definite hiring pre- sumed to be for a year. («) An indefinite hiring in the case of servants, without mention of time, is presumed as a matter of fact which may be rebutted by other circumstances to be a hiring for one year, and the fact of the wages being payable monthly makes no difference. However on a hiring " at two guineas a week for one year," Bramwell, B.,told the jury they might find a weekly hiring. {Rohertsoii v. Jenner, 15 L. T. N. S. 514.) So a hiring " at £2 a week and a house." (Evans v. Hoc, L. R. 7 C. P. 138.) If during the year, where the service is yearly, the servant is dismissed. WKONGFTJL DISMISSAL. GVJ 2. Ou the 20tli November, 1870, the"plamtiff entered into Claim for the service of tlie defendant as a yearly servant at a salaiy of dismfssal. £250 per annum, and the plaintiff subsequently received pay- ■without cause, he is entitled as damages to liis wages to the end of the year. If the servant leave the service without cause or is discharged by the master or by a magistrate's order for good cause during the year, he cannot recover any of the current wages. (See Smith, Master and Servant, 3rd ed., p. 178.) With regard to menial or domestic servants there is a common under-' standing (except where a different custom is shown to prevail) that though the contract is for a year, it may be dissolved by either party on giving a month's warning, or on the part of the employer by giving a month's wages. (Beestoii, v. Collijer, 4 Bing. 313, per Gaselee, J.: Fawcett x. Cash, 5 B. & Ad. 908.) A governess has been held not to be a menial servant within the meaning of this rule. {'Todd v. Kervk'h, 8 Ex. \T,\ ; 22 L. J. Ex. 1.) But a head gardener and huntsman have been held to be such servants, though under circumstances distinguishing them from ordinary menial or domestic servants. (Roscoe, Ev. Nisi Prius, 13th ed., 488.) The notice may be given at any time, /. e., need not be given at the end of any month from the commencement of the service. In such cases if the master without reasonable cause dismisses the servant without notice, the latter is entitled to recover a month's wages beyond the arrears. [Itohihsun v. IlindnuDi, 3 Esp. 23.5.) The same rule applies as in the case of yearly servants with regard to the consequences of the servant being dismissed for reasonable cause or dismissing himself with- out reasonable cause. A general engagement of an agent at a specified sum per annum simply, is a hiring for a year ; but a custom to discharge on notice may be engrafted on such hiring if the terms be not inconsistent with the custom. A stipulation for a gratuity at the end of the year has been held to be not inconsi.stent with such custom. {MetzncrY. Parlwr, 9 Ex. 518 ; 23 L. J. Ex. 130 ; Parlter v. Ibbctson, 27 L. J. C. P. 236 ; 4 C. B. N. S. 34G.) It is a question for the judge whether a written contract excludes such a custom. {Parho- v. Ihhtunn, supra.) But when the hiring is expressly for a certain fixed time a custom to determine it before without notice is inadmissible. (^Peters v.Stnreli/, 15 L. T. N. S. 275.) iSemble, clerks in London are entitled to three months' notice. (Per Pollock, C. B., who stated in Fairnuut. v. Oahford, 29 L. J. Ex. 459 — 60, that juries in London generally find to that effect.) In Jliscox V. Batcluillor, 1.5 L. T. N. K. 543, the jury found that an advertising and canvassing agent was only entitled to one month's notice. A contract of hiring '-for one whole year, and so on from year to year as the parties should respectively please," can only be determined at the end of any current year. Si'inblc, by reasonable notice. ( ]]"i!liaiii.i V. Ii;/rnf, 7 Ad. k, E. 177.) An agreement for ''twelve mouths certain, after which time either party should be at liberty to terminate the agree- ment,'' by three months' notice, may be determined by three months' notice terminating after the end of the twelve months. (Lanr/toii v. Carletoti, L. K. 9 Ex. .57, Kelly, C. B., disscntiente.) As to agreements for service for over twelve months, see 4th section of the Statute of Frauds, ante, p. 644. A dismissed servant or agent will not necessarily be entitled to his full salary or wages for the unexpired term of the contract, as it is liable to be reduced by the probabilities of his having other employment during such period. (Hartlund v. General Exrhmgr, Bank, 14 L. T. N. S. 863 ; Menial servants may be discharged ■ndth a month's warning. Who are menial servants. A custom to dis- charge on notice may be en- grafted on a general liirini?. Hiring for twelve- months. G-')() WRONGFUL DISMISSAL. (Jlaini for wrongful disiiiis.sal or alter- natively for arrears of ivases. mciit from tlie defendant at the rate of £250 until the 31st of Marcli, 1877. o. On the 3rd of April, 1877, the plaintiflF left the office of tlie defendant at the defendant's request, continuing never- theless in his employment, and went to Scotland at the request of the defendant, for the pm'pose of ascertaining in what place in Scotland a branch business could be established for the defendant and the plaintiff jointly. 4. Since the said 3rd of April, the plaintiff has been em- l)loyed by the defendant in relation to the said projected branch establishment, and in relation to that matter only. 5. The i3laintiflF has not since the said 31st of March, 1877, been paid any salary whatever, although he has frequently ajiplied to the defendant for p»ayment thereof. G. As an alternative claim, if the plaintiflF, when on the 3rd of April, 1877, he left the defendant's office and proceeded to Scotland as aforesaid, was dismissed from the service of the defendant, and was no longer in his employment, he was so dismissed by the defendant wrongfully, and in breach of his said contract of yearly service. 7. When the plaintiflF left the office of the defendant upon ]\Iaster not bound to assign any reason for dismissal. Misconduct no answer to claim for wages which are due at the time. jMisconduct for which a master may in- stantly dis- charge his .servant. and sec Yellaturs case. L. E. 4 Eq. 350 ; Ex 2>arte Clarlie, L. E. 7 Eq. uHO ; and Ex parte Lvqati, L. E. 1) Eq. 149.) The master is not bound to assign the reason for dismissal at the time thereof, and where a good cause for dismissal existed at such time, it is immaterial whether or not it was the real cause. {RUlqway v. Htiiigcr- ford Marliet Co., 3 A. & E. 171.) Where the payment of wages was to be at the rate of £50 per month, it was held that subsequent misconduct was no answer to an action for wages which had accrued due at the time of dismissal, because there was a vested right to each month's wages when the month had elapsed. {Button \. Thomson, L. E. 4 C. P. 330.) This maybe altered by the terms of hiring. Where a master having a right to discharge his servant for misconduct condones it, and retains the servant, he cannot afterwards discharge him for the same misconduct. {FhllUps v. Fo.full, L. E. 7 Q. B. 680, per Blackburn, J.) Defence — Dismissal, for misconduct, disohedicnce, <^y'.] — If a servant misconducts himself, the master may dismiss him without notice. A refusal to obey a lawful order is a good ground for dismissal. {Lilley v. El win, 11 Q. B. 742.) A wi'ongful claim by a clerk that he is a partner, entitles the employer to dismiss him instantly. (Amor v. Fcaron, 9 Ad. & E. 548.) If a traveller sells his employer's wines to a brothel keeper he may be dismissed without notice. (Blcnliarn v. Hodges' Distiller)j Co., 16 L. T. N. S. 008.) So where a servant embezzles his master's money, even though wages exceeding amount embezzled are due to him. (JJrojvn r. Croft, I Chitty's Prac. of the Law, 82.) WEONGFUL DISMISSAL. G51 the 3rd of April, 1877, as aforesaid, it was agreed by and be- ^^^^^l^^^' tweeu the plaintiff and the defendant that the plaintiff should aS^ai endeavour to establish a branch of the defendant's business as or alter- timber merchant in Scotland, and that the plaintiff should breach "of become the partner of the defendant in the said branch busi- anyengage- ness, and that the defendant should assist in the establishing "^ " ' thereof. 8. And the plaintiff upon his part has always been ready to perform the said agxeement, and has, so far as- it depended on him and so far as he was not prevented by the acts and con- duct of the defendant, in fact performed his said agTeement, but the defendant has refused to carry out or allow the plaintiff to cany out the said agTeement, and has prevented the plaintiff from estabhsliing the said branch business, and has not assisted but has absolutely refused to assist in the establishing thereof, and as a further alternative claim the plaintiff claims damages fr'om the defendant for the breach of the said agreement, and for the loss occasioned to the plaintiff by being so prevented by the defendant from establishing the said branch business. The plaintiff claims : — (1.) £300 damages. (2.) £126 aiTcars of wages. (3.) 8uch further and other relief, etc. Stcdcmcni of Defence and Coimier-daim. 1. The plaintiff entered into the semce of the defendant on Defence. the terms that he might be dismissed at any time with a reason- able notice in that behalf, and not as a yearly sei-vant. 2. The defendant was induced to take the plaintiff into his service by the plaintiff representing and warranting to him that he had an intimate commercial knowledge of the pit prop trade canned on by the defendant, and that he was reasonably competent to jjerform the work for which he was engaged as aforesaid, whereas the plaintiff had not an intimate conunereial knowledge of the pit prop trade, nor has he since been reason- ably competent to perform the said work. 3. In consequence of the premises the defendant gave the plaintiff a reasonable notice to terminate the agi-eement of service, which is the alleged breach. (552 WRONGFUL DISMISSAL. Defence to chtim for wrongful dismissal, &c. ■Counter- -daim. 4. If the defendant dismissed tlie plaintiff without notice, "wiiich he denies, he will rely on the matters stated in tlic 2nd paragraph of the defence as a justification. 5. The defendant says that on or about the 31st of March, 1877, the plaintiff agreed with the defendant to accept the notice of dismissal mentioned in the 3rd paragraph of this defence, and it w^as thereupon agreed between the plaintiff and the defendant that the said service should be put an end to and finally determined, and the plaintiff thereupon voluntarily (piitted the said employment. G. The plaintiff did not continue in the defendant's employ- ment after the said 31st of March, nor did the defendant request the plaintiff to continue therein, nor did he request the plaintiff to go to Scotland for the pirrpose mentioned in the 3rd para- gTaph of the statement of claim, or for any purjDose whatever. No salary has become due to the plaintiff since the 31st of March, 1877, nor is any salary now due by the defendant to the plaintiff. 7. The defendant did not dismiss the plaintiff as alleged in the Oth jjaragraph of the statement of claim, or at all. 8. It was not agreed by and between the plaintiff and defen- dant as alleged in the 8th paragraph of the statement of claim, nor was any agreement whatever made on the subject therein mentioned. And by way of counter-claim the defendant says — 1. On or about the 3rd day of April, 1877, the defendant lent to the plaintiff £15. 2. On or about the 20th day of May, 1877, the defendant lent to the plaintiff £20. 3. On or about the 28th day of May, 1877, the defendant lent to the plaintiff £85. 4. All conditions have been performed and times elapsed necessary to entitle the defendant to be repaid the said sums of £15, £20, and £85 respectively, yet the plaintiff has not repaid the same. The defendant claims : — 1. The i)laintiff joins issue upon the statement of defence WEONGFTTL DISMISSAL. g53 except so far as it consists of atlmissions of allegations con- Reply. taiued in the statement of claim. 2. As to the counter-claim the plaintiff denies the alleged loans and each of them, and does not admit that the defendant lent him any money. Action for ivrongful Dismissal of Engineer on a four years' Engagement. 1. The plaintiff is an engineer, and the defendants are manu- Claim for facturers of " Extract of Meat." ^v;l•ongfl^l 2. On the 20th of February, 1874, the plaintiff and defendants ^*™^^''^ " entered into an agreement in ^^Titing, by which it -was amongst (jther things stipulated that the plaintiff was to proceed to the defendants' establishment at F., in South America, and there be employed by the defendants and serve them in the capacity of engineer, and give such other services and assistance to the defendants according as the exigencies of their business re- quu-ed, for a period of fom* years from the 20th February, 1874, and thereafter from year to year until determined as therein mentioned, and in consideration of such services the defendants promised to provide the jilaintiff while in South America with a dwelling-house for himself free of rent, and to pay him the sum of £]4 per calendar month during the continuance of the said agreement. o. It was also agreed between the plaintiff' and the defen- dants that the plaintiff should deposit with the defendants as a guarantee for the fulfilment of the plaintiff's part of the said agi'eement a sum of not less than £30. 4. In accordance with the said agreement the plaintiff entered upon the said service in the capacity and upon the terms afore- said, and continued therein until the breach of the said agree- ment hereinafter mentioned. On the 11th day of May, 1875, the plaintiff had lodged with the defendants as a deposit as aforesaid a sum of £30. 5. Upon the said last-mentioned date, viz. 1 1th of iNFay, 1 875, the defendants wrongfully and without any just and sullicient cause dismissed the plaintiff from their said service, and refused to retain the plaintilf therein for the said term of four years. {]. The defendants have refused to pay the plaintiff the said deposited sum of £30, and the same still remains unpaid. ijr>4} WRONGFUL DISMISSAL. Claim for The plaintiff claims : — Jismfssal. (-^'^ £400 damages for wrongful dismissal. (2.) £30 money deposited with the defendants, and interest thereon. Statermnt of Defence. Defence of 1 • By the agreement in the said 2nd paragraph mentioned it was provided as follows : — misconduct of the plaintiflf [Af/reenipnt set ouf.'\ i'dtsiSl. ^- ^^ ^^^ ^^^^^ °^ ^^y' ^^^^' ^^^ defendant company had an establishment at in South America, and employed a large number of workmen therein. It was essential to the interests of the company that such workmen should obey the laws of the place, and submit peacefully and quietly to the constituted authorities. On the said 11th of May T. H., a workman em- ])loyed by the company upon their said establishment, was taken into custody by the police for having fired a shot upon the highway, and thereby placed in danger the lives of peaceful inhal^itants, and was imprisoned in the police-house of the S. Thereupon the plaintiff and a number of other workmen in the employ of the defendants absented themselves from their em- ployment during working hours without leave first obtained from the defendants, and assembled as a lawless mob with the avowed object of rescuing by force from the said constituted authorities the said T. H. imprisoned as aforesaid. 3. Such conduct on the part of the workmen was calculated, as the plaintiff well knew, to imperil the position and interests of the defendant company, by leading the natives to believe that the defendant company countenanced revolt against the con- stituted authorities, and was a breach of the said agreement, and entitled the defendants instantly to dismiss the plaintiff, 4. The defendants thereupon dismissed the plaintiff which is the grievance complained of. 5. The defendants admit that the plaintiff deposited with them the simi of £30 as in the 4th paragraph of the state- ment of claim alleged. The plaintiff failed to perform the terms of his said engagement in this, that he refused to serve the company during the ordinary time of labour on the 11th day of May, 1875, and absented himself fi-om his employment WEONGFTJL DISMISSAL. (i55 without leave asked and obtained from the defendants, and was Defence to guilty of the offences in the 3rd paragraph hereof mentioned, ^vronf'M by reason whereof he was dismissed as aforesaid, and thereupon , Where a defendant by his statement of defence sets up a counter- claim, if the i^laintiff' or any other person named in manner aforesaid as party ,to such counter-claim contends that the claim thereby raised ought not to be disposed of by the way of counter-claim, but iu an indeijeudeut action, he may at aoy time before reply apply to the Court or a judge for an order that such counter-claim may be excluded, and the Court or a judge may on the hearing of such application make such order as shall be just. 10. Where in any action a set-off or counter-claim is established as a APPENDIX. 667 defence against the plaintiff's claim, the Court may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case. 11. In Probate Actions the party opposing a will may, with his defence, give notice to the party setting up the will that he merely insists on the will being proved in solemn form of law, and only intends to cross- examine the witnesses produced in support of the will, and he shall there- upon be at liberty to do so, and shaU be subject to the same habilities in respect of costs as he ^^ould have been under similar circimistances according to the practice of the Court of Probate. ORDER XXIV. REPLY ANT) SUBSEQUENT PLEADINGS. 1. A plaintiff shall deliver his reply, if any, within three weeks after the defence, or the last of the defences, shall have been delivered, unless the time shall be extended by the Court or a judge. 2. iSo pleading subsequent to reply other than a joinder of issue shall be pleaded without leave of the Court or a judge, and then vipon such terms as the Court or jiidge shall think fit. 3. Subject to the last preceding rule, every pleading subseciuent to reply shall be delivered within four days after the delivery of the pre- vious pleading, unless the time shall be extended by the Coiirt or a judge. ORDER XXV. CLOSE OF PLEADINGS. As soon as either party has joined issue upon any pleading of the opposite party simply witliout adding any farther or other pleading thereto, the pleadings as between such parties shall be deemed to be closed. ORDER XXVI. ISSUES. Where in any action it appears to a judge that the statement of claim or defence or reply does not sufficiently define the issues of fact in dis- pute between the parties, he may direct the parties to prepare issues, and such issues shall, if the parties differ, bs settled by the judge. 668 APPENDIX. ORDER XXVII. AMENDMENT OF PLEADINGS. _ 1. The Court or a judge may, at auy stage of the proceedings, allow either party to alter his statement of claim or defence or reply, or may order to be struck out or amended auy matter in such statcmeuts respec- tively which may be scandalous, or Avhicli may tend to prejiidice, em- barrass, or delay the fair trial of the action, and all such amendments shall be made as may be necessary for the purpose of determining the real questions or rpiestiou in controversy between the parties. 2. The plaintiff may without any leave amend his statement of claim once at any time before the expiration of the time limited for reply, and before replying, or, where no defence is delivered, at any time before the expiration of four weeks from the appearance of the defendant who shall have last appeared. 3. A defendant who has set up in his defence any set-off or counter- claim may, without any leave, amend such set-off or counter-claim at any time before the expiration of the time allowed him for pleading to the reply, and before pleading thereto, or in case there be no reply, then at auy time before the expiration of twenty-eight days from the filing of his defence. 4. Where any party has amended his pleading under either of the last two preceding Rules, the opposite party may, within eight days after the delivery to him of the amended pleading, apply to the Court or a judge to disallow the amendment, or auy part thereof, and the Court or judge may, if satisfied that the justice of the case requires it, disallow the same, or allow it subject to such terms as to costs or otherwise as may seem just. 5. Where any party has amended his pleading under Rule 2 or 3 of this Order, the other party may apply to the Court or a judge for leave to plead or amend his former pleading within such time and upon such terms as may seem just. 6. In all cases not provided for by the preceding Rules of this Order, application for leave to amend auy pleading may be made by either party to the Court or a judge in chambers, or to the judge at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise as may seem just. 7. If a party who has obtained an order for leave to amend a pleading delivered by him does not amend the same within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order, such order to amend shall, on the expiration of such limited time as aforesaid, or of such fourteen days, as the case may be, become i^jso facto void, unless the time is extended by the Court or a judge. 8. A pleading may be amended by written alterations in the pleadings which has been delivered, and by additions on paper to be interleaved therewith if necessary, unless the amendments require the insertion of more than 144 words in any one place, or ai-e so numerous or of such a nature, that the making them in Avriting would render the pleading dithcult or inconvenient to read, in either of which cases the amendment must be made by delivering a print of the pleading as amended. 9. Whenever any pleading is amended, such pleading when amended shall be marked witli the date of the order, if any, under which the same is so amended, and on the day on which sucli amendment is made, in manner following, viz. : "Amended day of ." 10 Whenever a pleading is amended, such amended pleading shall be delivered to the opposite party within the time allowed for amending the same. APPENDIX. 669 11. The Court or a j^idge may, at any stage of the proceedmgs, allow the plaiatiff to amend the writ of summons iu such manner, and in such terms, as may seem just. ORDER XXYIII. DEMURREE. 1. Any party may demur to any pleading of the opposite party, or to any part of a pleading setting up a distinct cause of action, ground of defence, set otf, counter-claim, reply, or as the case may be, on the ground that the facts alleged therein do not show any cause of action or ground of defence to a claim or any part thereof, or set off or counter- claim, or reply, or as the case may be, to whicli effect can be given by the Court as against the party demurring. 2. A demurrer shall state specifically whether it is to the whole or to a part, and if so, to what part of the pleading of the opposite party. It shall state some ground in law for the demurrer, but the party demurring shall not, on the argument of the demurrer, be limited to the ground so stated. A demurrer may be, in the form 23 on Appendix (C) hereto. If there is no ground, or only a frivolous ground of demurrer stated, the Court or a judge may set aside such demurrer witli costs. 3. A demurrer shall be delivered in the same manner and within tlie same time as any other x^leading in the action. 4. A defendant desiring to demur to part of a statement of claim, and to put in a defence to the other part, shall combine such demvxrrer and defence in one pleading. And so in every case where a party entitled to put in a further pleading desires to demur' to part of the last pleading of the opposite party, he shall combine such demurrer or other pleading. 5. If the party demurring desires to be at liljerty to plead as well as to demur to the matter demurred to, he may, before demurring, apply to the Court or a judge for an order giving him leave to do so ; and the Court or judge, if satisfied that there is reasonable ground for the de- murrer, may make au order accordingly, or may reserve leave to him to x'lead after the demurrer is overruled, or may make such other order and upon such terms as may be just. G. When a demurrer either to the whole or part of a pleading is delivered, either party may enter the demurrer for argument imme- diately, and the party so entering such demurrer shall on the same day give notice thereof to the other party. If the demurrer shall not be entered and notice thereof given within ten days after delivery, and if the party whose pleading is demurred to does not within such time serve an order for leave to amend, the demurrer shall be held sufficient for the same purposes and with the same result as to costs as if it had been allowed on argiiment. 7. While a demurrer to the whole or any part of a pleading is pending, such pleading shall not be amended unless by order of the Court or a judge ; and no such order shall be made except on payment of the costs of the demurrer. 8. Where a demurrer to the whole or any part of a pleading is allowed upon argument, the party whose pleading is demurred to shall, unless the Court otherwise order, pay to the demurring party the costs of the ilcmurrer. 0. If a demurrer to the whole of a statement of claim be allowed, the plaintiff, subject to the power of the Court to allow the statement of 070 APPENDIX. claim to be amended, shall pay to the demurring defendant the costs of the action, iiuless tlie Court shall otherwise order. 10. AVhere a demurrer to any pleading or part of a pleading is allowed in any case not falling within the last preceding rule, then (subject to the power of the Court to allow an amendment) the matter demixrred to shall as between the parties to the demurrer be deemed to be struclc out of the pleadings, and the rights of the parties shall be the same as if it had not been pleaded. 11. Where a demurrer is overruled, the demurring party shall pay to the opposite party the costs occasioned by the demurrer, unless the Court shall otherwise direct. 12. Where a demurrer is overruled, the Court may make such order and iipou such terms as to the Court shall seem right for allowing the demurring party to raise by pleading any case he may be desirous to set lip in opposition to the matter demurred to. INDEX. ABATEMENT, pleas in, abolished. Sec Pleadings. ACCEPTANCE, under 17th section of Statute of Frauds. 8cc- Sale of Goods. ACCEPTOR. See Bills of Exchange. ACCIDENT. See Negligence. / , not necessarily evidence of negligence, 461 ;,fj ACCOMMODATION BILL. ^S'cc Bills of Exchange. / \ :, . ACCORD AND SATISFACTION, 105 J-l. what constitutes, ib. \ accord without satisfaction or satisfaction without accord no defeU(J^.^,?^.sV, ( / pa3mient of a smaller sum no satisfaction for larger amount, ib. alllcr where greater amount unliquidated, ih. acceptance of, by one joint creditor binds others, il. an answer to action for libel. See Defamatii>n. Forms — statement of defence of, to action for negligence, 105, 106 reply to preceding defence alleging fraud and misrepresentation, lOJ statement of defence of, to action for malicious prosecution, 431 statement of defence of, to action for breach of warranty, 642 ACCOUNT STATED, need not be in writing, 107 when items may be re-opencd, ih. mistake, ih. miscalculation, ib. Forms — statement of claim on, ih. staiement of claim on, (facts different), 107, lOS daim on account stated in the alternative, 114 otiier alternative claims on an account stated, 384, 452 ACTION, local, now abolished. See Vknue. statement of form of, unnecessary. See Pleading. combining causes of, in statement of claim. See PleadincI ADMININISTRATORS. Sec Executor, AGENTS. See Commission. where no time of engagement agreed on principal may revoki authority, lOS unless agent has authority couj)led with interest, ib. 'A 672 INDEX. AGENTS— contimied. bound to exercise reasonable amount of care and skill, 108 mercantile, have implied anthority to sell at such times, places, and prices as they think advantageous, ib. not generally liable for price of goods sold on credit, 109 aliler, if del credere agents, ib. FoKMS. See forms under Commission. statement of claim in action against agent for selling on credit contrary to instructions, and for selling at lower price than directed, 108 — 110 statement of defence and counterclaian to preceding claim, 110- — 112 reply, 112 rejoinder, ib, statement of claim, in action against agent for not accounting or paying for goods consigned to him for sale, alleging alternatively a del credere liability, 112, 113. statement of claim in action by agent for losses on sales and re-sales for defendant, 113, 114. AGISTMENT, Duty and liability of an agister of cattle, 11-1 Forms — statement of claim, for loss of cattle through negligence and misconduct of agister, 114 — 116 statement of defence to preceding claim, 116 — 118 reply, 118, 119 ageeemp:nt, as to mode of setting out in pleading. Sec Pleading. alteration, effect of, on a contract, 119. instances of alterations which vitiate, ib. when made by a stranger, ib. effect of, when made by mutual consent, ib. FoiiMS — statement of defence of, to action on deed or written contract, ib, statement of defence of, to action on promissory note, 184 ALTERNATIVE PLEADINGS. See Pleadings. AMENDMENT. See Parties, Pleadings. ANCIENT LIGHTS. See Easements. ANIMALS. See Ferocious Animals. ANNUITY. See Bond. APOLOGY. Sec Defamation, " Defence imder Lord Campbell's Act." APOTHEC AR lES. See Medical Practitioners. APPRAISEMENT. Sec Distress. APPRENTICE, what constitutes the contract of apprenticeshiji, 120 must be in writing, ib. not bound after 21, ib. covenants by master and bondsman independent, ib. master bound to maintain apprentice though ill, 120, 121 master may moderately chastise, 121 INDEX. 673 APPRENTICE— co/ii!//m«i. FOKMS — statement of claim in action by master for misconduct of apprentice on covenant in indenture, 120, 121 statement ofdcfeiicc and counter-claim to above, 121, 122 reply and demurrer to above, 122, 123 ARBITRATION. Sec Award. ARCHITECT, liability of, when engaged to determine disputes between builder and employer, 123 is only liable for fraudulently withholding certificate, ih. and not for mere error in discharge of duty, ih. Form— statement of claim by builder against architect for fraudulently withholding his certificate, 123 — 125 ARREST. See Malicious Arre.st ; False Imprisonment. ASSAULT AND BATTERY, definitions and illustrations of, 125 negligent act may be, ih. justification of. ih. self-defence, ih. defence of one's house or land, 126 moderate chastisement, ih. constables executing warrants, ih. a giound for action or prosecution, ih. where case finally determined before justices, prosecutor precluded from suing, ih. if amounting to a felony, qiucrc whether plaintiff' precluded from suing, ih. Forms — statenunt of claim for assault (with claims for trespass and trover com- bined), 12.5—127 statement of claim against railway company for assault by theii- servants, 127,128 statement o/'rff/c?icc to precedhig claim, that the assaults were committed in restraining jjlaintiff from entering a carriage when in motion, and in removing him for disorderly conduct, 128 statement of claim for assault by schoolmaster on pupil, 129 statement of defence to preceding claim that pupil was moderately and law- fully chastised for disorderly conduct, 129, 130 statement of claim against constable and surgeon for indecently assaulting a female prisoner, 130 stcttetnents of defence, ih. ASSIGNEE. Sec Chose ix Action ; Bankrupt ; Landlord and Tknant. ASSU.MPSIT, common counts in, abolished. Sec Pleadings. ATT0RNP:Y. See Solicitor. AUCTIONEER. See Commission. AVERAGE, Forms— slatemcnl of claim in action against sliip-owncr for not preparing a proper average statement, 131, 132 statement of claim in action for average on sale of a wrecked cargo, 132, 133 X X ■674) INDEX. AWAED, how enforced, 133 what averments in .statement of claim on, necessary, ih. irregularities in relation to the award, (7*. miscondnct of arbitrator, ib. law as to, not aiiected by Judicature Acts, 134 FoilM — statement nf claim on, 133, 134 BAIL, liability of defendant to be held to bail or arrested on capias not taken away by Abolition of Imprisonment for Debt Act, 135 modification of the law on the subject, ib. ToiiM — statement of claim in action on recognisance against bail, ih. BAILMENT, what constitutes a, 136 liability of hirer of chattels, ih. implied authority, to expend money in repairing chattels, ih. lialiility of gratuitous borrower of chattels, 136, 137 liability of pawnbroker, 137 lialulity of gratuitous mandatory, ih. liability of paid mandatory, ih. two classes of, ili. liability diffei'ent with reference to each, ih. FoiiMS — statement of claim in action for misusing horse and dog-cart hired by defen- dant, 136, 138 statement of elaini in action for injury to goods in furnished apartments by- lodger, 138 statement of defence and counterelaim to preceding claim, 138, 139 reply, 139, 140 rejoinder, 140 statement of claim in action for negligent keej^ing of furniture whereby it was burned, 140 statement of claim for negligence of bailees (two defendants) in not taking^ proper care of wine in their warehouse, 1 40, 1 41 statements of defence to preceding claim, 141, 143 statement of claim for negligence of bailees in not properly packing silk^ 143, 144 statement of defence to preceding claim, 145, 146 BANKERS, liability of, for dishonouring customers cheque, 146 in the case of branch banks, ih. as to right of party other than customer to sue banker, 147 liability of, for payment of forged cheques, ih. as to payment of cheques which bear forged indorsements, ih. Forms — statement of claim against bankers for dishonouring a customer's cheque,, 146—148 statement of claim against bankers for dishonouring customer's cheque,^ setting out special undertaking that it shoiM be paid, 148, 149 sMr)/ly to preceding defence that notice of cancelment not given within reasonable time, and that authority of plaintiffs given to master to enter into new charter-party was obtained by fraud, 22S, 229 stdtcment of claim for difference between estimated amount of freight under charter-party and amount paid, part of cargo being made up of lighter material than agreed (cotton instead of rice), 229 — 231 statement of defence and coicnterclaion, (for injury to goods) to claim (not given) for freight and expenses indorsed on writ, 231, 232 statement of claim by shipper against shipowner for refusing the services of ship's crew to take a cargo on board, 232, 233 statement of claim against shipowner for delay and deviation, 233, 234 statement of defence and counterclaivi (for balance of freight) to preceding claim, 234, 235 statement of claim for delay and deviation (another form), alleging loss by rise in prices during the delay, 235, 236 statenmit of claim for damage to cargo, the vessel not being staunch a& undertaken by charter-party, 236 — 238 CHEQUES. See Bills of Exchange, &c. ; Bankers. CHOSE IN ACTION, formerly not generally assignable, 238 provision of Judicature Act, 1873, making them generally assignable, ib. assignment to be in writing iinder hand of assignor, ib. must be absolute, and not by way of charge only, ib. INDEX. 68] CHOSE IN ACTHO^— continued. express notice of assignment to be given to debtor, ib. debtor, kc, may interplead where assignor disputes assignment, or where there is any other opposing or conflicting chiim made to debt, ib. may interplead before action brought, 238, 239 nothing to be deemed an assignment under Act which would not formerly be either a legal or e(putable assignment, 239 cheque is not assignment by drawer of amount in banker's hands to credit of payee, ib. debtor in action on assignment of debt may set of claim against orighial creditor, ib. but may not make it the subject of a counterclaim, ib. FOKMS — statement of claim in action on debt assigned under 25th section of Judica- ture Act, 1873, 238, 239 statement of defence to preceding claim setting forth rescission, payment into court of part, and denial of performance of a condition precedent, 239—242 rcjdy to preceding defence, 242, 243 rejoinder, 244 CLAIM, STATEMENT OF. Sec Plkadings. CLERGYMEN, the 34 & 35 Vict. c. 44, enables clergymen permanently incapacitated to resign their benefices, and are thereon entitled to pension of one-third of the value of the benefice, 246 pension a charge on revenues of living and recoverable from incumbent, ib. pension not assignable, ib. Forms — statement of claim by, for possession of rectory and glebe lands, 244 — 246 statement of claim by clergyman who has resigned his benefice for payment of pension under 34 & 35 Vict. c. 44, 246 CLERK, notice to which entitled. Sec Whongful Dismissal. COLLISION, statement of claim against pilot for negligence causing. See Negligence. statement of claim against railway company for negligence causing, ib. COMMENCEMENTS AND CONCLUSIONS OF PLEADINGS. Sec Plead- ings. COMMISSION. See Acjents. all agents impliedly entitled to, by engagement, 247 amount of, in absence of stipulation, determined by usage of trade, ib. where commission payable (by agreement) on sale, none payable unless sale, ib. as to shipbroker's commission, ib. as to house agent's commission, ib. right to, how affected by death of principal, ib. right of agent to, where authoiity revoked otherwise than by death, 247, 248 where agent employed to find purchaser at a given price, finds one, but principal then refuses to sell, what amount claimable, 248 when agent may claim beyond, for services, ib. FoiiMs — statement of claim for commission by house agent, 247, 248 €82 INDEX. COimiBSlO'N—cantinucd. statement of claim by several plaintiffs in the alternative for commission on the sale of a steamer, 249 statement of claim by sliipbroker for co'mnii.ssion on finding a charterer, 250 statement of claim by auctioneer and valuer for commission on a sale, 250, 251 statement of claim iov commission by army agent on effecting regimental exchange, 251, 252 stofeyiw/ii! o/c('«/;;t for commission upon valuable contract procured by aid of the plaintiff, 252, 253 COMMON CARRIERS, who are, 254 liabilities of, at common law, ib. bound to carry all goods offered to them, if reasonable charge tendered, ib. and to deliver them within reasonable time, ib. are insurers of the goods entrusted to them for carriage, ih. and liable for loss occasioned in any Avay except by the act of God and the Queen's enemies, ib. meaning of the expression " act of God," ib. liability for injuries to live stock during transit, 254, 255 not liable for injuries caused to goods by ordinary wear and tear or friction, 255 nor for natural decay of perishable goods, ib. may limit their liability by special contract, ib. statutory modifications of liabilities of, 255 — 259 provisions of 11 Geo. IV. & 1 Wm. IV. c. 68 (Carriers Act), 255—257 carrier by Icuid not liable for loss, &c., of specified articles, if above lOZ. in value, unless value declared at time of delivery to carrier, 255—256 carrier may demand increased charge, 256 to give receipt for the increased charge, 256 general notices limiting liability invalid, ih. special contracts not atiected by Act, ih. Act not to protect carrier against felonious act of his servant, ib. carriers by land and sea within Act as to /«/;f/ journey, decisions as to what packets and articles within Act, 257 not protected under Act where elelay the ground of action, ib. if value not declared, carrier not liable for gross negligence of his ser- vant, ib. nor scmblc of carrier himself, ib. aliter, where loss through wilful misfeasance or stolen by carrier's servants, ib. in-ovisions of 17 & 18 Vict. c. 31 (Railway and Canal Trafiic Act), railway companies, &c., may make reasonable conditions (reasonableness to be determined by Court) respecting the receiving, forwarding, &c., of animals, articles, &c., 257 test for determining reasonableness of conditions, 253 railway companies, &c., not liable beyond specified sums for certain animals, unless value declared and increased charges paid, ib. tlie sums or rates to be notified as prescribed by Carriers' Act, ib, may make special contracts, but not to be binding unless signed by consignor or person delivering, 258 company not exempt by reason only of consignor not having signed special contract, ib. provisions of Act only apply to carriage of goods, &c., over lines worked by the company, ib. INDEX. 683 COMMON CAEPJERS— coH Wife. statement of claim for slander of title of plaintiff''s, 292, 293 statement of defence to preceding claim (Privilege), 294 DEFENCE, STATEMENT OF. See Pleadino. DEL CREDERE AGENT. Sec Aoent. DEJIAND AND REFUSAL. See Troveu. DEMISE. See Lanblord axd Tenant. DEMURRAGE. See CH.A.pa'ER-PARTY. DEMURRER, may be to entire pleading of ojiposite party, or to any part thereof, 294 if paragraph of pleading demnrrablc, demurrer the proper course, and not applpng at chambers to strike out, 294, 295 must state specifically whether it is to whole or part of pleading, 295 must state some ground in law for the demurrer, but argument not confined to such gi-ound, ib. party may demur to one part of pleading, and plead to another part thereof as of right, ih. but cannot plead and demur to the same pleading, or part of a pleading without leave, ih. when frivolous, ib. entering for argument, ih. effect of failing to do so, ib. the settling of the " i)oints " for argument, ih. a development of gi-ound stated in "demurrer, ih. should state all the objections to the jdeading demurred to, ih. though party confined to points stated, the Court will adjudicate on u point which may suggest itself to them, ib. the "demurrer book," how made up, ib. as to delivery of co^jies to the judges, 29.5, 296 effect of demurrer being allowed or disallowed, 296 where there are other issues than those covered by the demurrer, ib. FoiiMs— demurrer to statement of claim, 495 demurrer to statement of defence, 122, 123 demxirrer to reply, 599 DEPOSIT, Htatement of claim by purchaser against agent to recover on sale going off. Sec Sale of Land. DETINUE, when action of, lies, 296, 297 distinction between, and trover, 297 form of judgment for plaintiff in, ih. sumniaiy powers of Court in actions of, ib. provisions of Common Law Procedure Act, 1854, as to repeated dis- tresses until chattel delivered uj), ib. FOItMK — .statement of claim against a solicitor and others for detention of deed, 296—298 statement of clnim for detention of a ])iclure, 298 CSS INDEX. HmTl^UE-coniiducd. FOIIMS — statement of claim afjjainst police constable for detention of jewellery taken from an acquitted prisoner, 298, 291) statement of claim for detention (also stating grounds of action of trover), for goods left in house by outgoing tenant, 299 statement of defence and counterclaim to preceding claim, 299, 300 DEVIATION. Sec Insurance (AIaiune). DEVISEE, actions by, for recovery of land. See Eecovery of Land. DILAPIDATIONS. See Landlord and Tenant ; Eepairs ; Recovery of Land. DIRECTORS OF COMPANY, action against, for misrepresentation by means of fraudulent prospectus, /^e Misrepresentation. DISCHARGE. See Bankruptcy ; Relbase ; Rescission. DISCLAIMER. See Bankruptcy. DISHONOUR, NOTICE OF. Sec Bills of Exchange. DISTRESS, tlie nature of remedy by, 300 when to be levied, 301 where to be levied, lb. tilings absolutely privileged from, ih. things conditionally privileged, ib. distinction between illegal and irregular, ib. where it is illegal, the real nature of the action is trespass and trover, ib. the different consequences of illegal and irregular distresses, 301, 302 effect of irregular distress on the rights of the parties, 302 excessive distress— question of excess is one for the jury, ib. Forms — , j . statement of claim setting out grounds of action for illegal and irregular distress "against landlord and bailiff, 300 — 303 statement of defence to preceding claim of one defendant (landlord), 303, 304 statement of claim for illegal and irregular distress (combining claim for trespass independent of the distress), 304, 305 DOMESTIC SERVANTS. See Wrongful Dismissal. DOUBLE RENT. See Landlord and Tenant. EARNEST under 17th section of Statute of Frauds. Sec Sale of Goods. EASEMENTS, vs^hat are the material averments in action for distm-bance ot, 305 not necessary to state how easement arose or was created, 306 grantee of, prima facie bound to repair, ib. How Lost — abandonment of, ib. what is evidence of, ib. a license given and acted on inconsistent with continuance of easement — instance, ib. release, ib. INDEX. G89 EASEMENTS— co/i. inicrest at time of contract sufficient, ib. ^vhat constitutes insurable interest, ib. decisions, ib. amount of insurable interest only can be recovered, ib. assignment of, ib. notice of, to be given to insurer, ib. effect of fraudulent misrepresentation by assured, on policy, ib. where there is a condition that policy shall be void if written answers to questions be untrue, the untruth need not be intentional, ib. nor car the question of their materiality be raised, ih. but, where there is not such condition, mere statements and representa- tions which are untrue, will not avoid policy, unless fraudulent, ib. dying "by his own hands," — what included under term, 385, 386 FOKMS — statement of claim on policy effected by creditor on life of debtor, 385 — 887 statement of claim by assignee of life policy, 387, 388 INSURANCE (FIRE), policy, is a contract of indemnity, 388 insurer can only recover amount of actual damage or loss, ib. necessary to show an interest in subject-matter at times of insurance and of fire, ib. who have an insurable interest, ib. waiehousemen, ib. Avharfingers, ib. carriers, ib. who may recover whole value of the goods burnt though consignee unable to recover by reason of value not having been declared under Cai-rier's Act, ib. property must be described in policy, ib. where there is a condition against alteration of premises insured, a subse- quent alteration avoids policy, ib. alitcr, if there is no such condition, even where a dangerous trade is set up, ib. policy covers loss caused by negligence of assured, if theie be no fraud, ib. fire policy was not assignable before Judicature Act (1873), 388, 389 Forms — statement of claim on fire policy for partial loss and for trespass, 388—390 statement of chfence to preceding claim, setting up non-performance of con- ditions precedent and fraud, 390 — 392 INTEREST. See Compound Ixtki;est ; Bills of Excilvnge, &c. INTERPLEADER, jirocedure on, not aftected by Judicature Acts, 392 provisions of 2 W. 4, c. 58, and 23 & 24 Vict. c. 126, ih. FuJtMS — issue on claims of plaintiff and defendant to shares, 392, 393 issice on claim to goods seized b}' sheriff, 393, 394 issue on adverse claims to same property, 394 INDEX. 699 JOINDER OF PARTIES. So: Paeties. JOINT STOCK COMPANIES, how tliey sue ami are sued, 102 JOINT TENANTS, overholding by one does not make other liable for nse and occupation, (3'29 JUDGMENTS, formerly an action nmst have been brought in England on judgment obtained in Ireland or Scotland before execution could be had, 397 so as to judgments obtained in England and Scotland before they could be enforced in Ireland, ib. and as to judgments obtained in England or Ireland before they could be enforced in Scotland, ib. now holder of judgment in one kingdom can, by registering it in another, enforce it in the latter under 31 & 32 Yict. c. 54, ///. before passing of Judicature Acts, actions on, must have been brought in coimty where judgment enrolled, the venue being local, 394 (ditcr now, local venue having been abolished by Order XXXYI. r. 1, ih. on what judgments action will lie, ib. in case of foreign or colonial, jilaintitf may proceed either on judgment or on original cause of action, 394, 395 statement of claim on, need not allege that Court had jurisdiction, pre- sumption being in favour of foreign judgments, 395 plaintiff suing on judgment not entitled to costs without order of Court, 14 & 15 Vict. c. 99, s. 7, ib. Defe>*ces — Nul tiel record, ib. if effect of judgment misstated, how to be denied in statement of de- fence, ib. Payment — provision of 4 & 5 Anne, c. 16, s." 12, as to, ih. Pielease — how pleaded, ib. Discharge — arrest on ca. sa. formerly amoinited to, ib. arrest in any of the cases in which person may now be arrested tor debt does not discharge debt, ib. no defence which could have been set up in original action can be pleaded, 395 nor can any matter which is ground for setting aside judgment be raised by way of defence, 395, 396 but gi'ound for absolute and unconditional injunction may liave been for- merly set up as equitalde defence, 396 and now, snmblc, matter wliich is ground for conditional injunction may be set up, ib. the fact that an appeal is jjcnding cannot be set upas a defence, though it is a ground for staying execution, 397 matter which is ground of error cannot be pleaded in defence, 396. in the case of foreign judgments, defence that judgment erroneous in jioint of law and on the merits, not allowed, ib. or that fresh evidence has been discovered sliowing it to be erroneous, ///. or for mistake of the law of the foreign country, ib. but defendant allowed to plead the following defences : — (a) that Court had no jurisdiction, ib. {b) errors on the face of the judgment, ib. [c) for rcpiidiatiiig English law where it was necessary todecide the case, ib. but scmblc alitcr for midakc in Enghsh law, 396, 397 {d) tliat judgment contiary to natural ju.stice, 396 (e) that judgment not final and conclusive, ib. 700 INDEX. JVOGU^s^TB— continued. Defknces— co7( t in ucd. (/) that defendaut was not summoned, and had no notice of proceed- ings, 396 (gr) that defendant was not a resident in or subject of foreign country, and that judgment passed against him in default of appearance, ib. {h) that judgment obtained by fraud, ib. FOKMS — statement of claim on judgment obtained in the Isle of Man, 394- -397 statement of defence to preceding claim, setting out that defendant was not resident or domiciled, and was not served with any process or summons, 397, 398 JUSTICES OF THE PEACE. Bee False iMrKisoNMENT. JUSTIFICATION. See Defamation. LAND. Sec EEcoA^EitY of Land ; Sale of Land. LANDLORD AND TENANT, how relation of, created, 398 when it must be created by deed, ib. when covenants run with the land, 399 liabilities of parties on execution of lease or agreement, ib. LaiuUord's Liabilities : — on the lease or agreement, ib, on pai'ol demise there is implied promise of quiet possession but not of title, ib. landlord bound to deliver possession, ib. no implied warranty that premises, &c. , reasonably lit for habitation or cultivation, ib. aliter, on letting house and furniture, ib. covenant for quiet enjoyment, ib. implied from word "demise " and "let," ib. aliter, where express covenant for quiet enjoyment or possession, ib. what constitutes breach of covenant for quiet enjoyment, 399, 400. refusal to give, or allow tenant to take, possession not a breach, 400 other acts which though interfering with tenant's rights do not constitute such l)reach, ib. measure of damages in actions for breach of covenant for title or quiet enjoyment, ib. Tenant's Liabilities :— bound to accept possession, 399 unless he has agreed to tenancy on a condition which landlord has not fulfilled, ib. on n:ere oral contract for hire of realty cannot be sued for not taking jiossession, or for rent, or for use and occupation, ib. covenants to pay rent, 400 tenant remains liable on, after assignment, ib. there is an implied covenant or promise by assignee to indemnify assignor, ib. but tenant not liable for rent after assignment where there is merely a reservation of rent, ib. no defence to action for rent that tenant induced to accept lease by fraud, ih. liability for repairs, 401 covenants relating to, ib. covenants to repair, and to repair after notice, generally but not necessarily distinct, ib. consequence of their being distinct or independent, ib. INDEX. 701 LANDLORD AND TE^ Al^T—contl?iucd. Tenant's Liabilities — no contract to repair implied from relation of landlord and tenant having been established, 401 measure of damages in actions on covenants to repair, ib. (a) where landlord's interest continues, ib. (&) where it is forfeited or terminated, ib. depends on state of premises at tiie commencement of tenancy, ib. if dilapidation prevents landlord from letting, ib. landlord may claim as special damage that his lease has been forfeited by the breach of defendant's covenant to repair, ih. and may recover the amount he has been compelled to pay in action for breach of covenant to repair, ib. covenant to insure, lb. runs with the land, being by virtue of 14 Geo. 3, c. 78, s. 83, virtually a covenant to repair, ib. covenant to cultivate in husbandlike manner, 402 how claim for breach of to be stated, ib. covenant not to carry on particular trade, ib. decisions as to what constitutes a breach of, ib. covenant not to assign, ib. sub-demise no breach of, ib. unless where covenant is ' ' not to let or assign over, " ib. assignment by one joint tenant to another violates, ib. where covenant is not to assign without consent, such consent is not to be withheld arbitrarily, 402, 403 me:isure of damages for breach of, 403 covenant to yielil up at end of tenancy, ib. measure of damages for breach of, ib. landlord may recover cost of ejecting under tenant left in possession by tenant, ib. so the expense of compromising an action brought by a person to whom he had let after expiration of defendant's tenancy, ib. such damages may scwftZc be recovered independent! j' of covenant, 404 the acceptance of rent for period of holding over does not affect landlord's right to sue for breach of, 403 actions against assignees of lease, ih. sub-demise for whole remaining term is an assignment, ib. executor dc son tort entering and taking possession of lease liable as assignee, ib. so a person entering into possession or receiving rents and pi'ofits is liable as assignee, though not an executor de son tort, ib. trustee of debtor's estate for benefit of creditors who has not repudiated lease, liable as assignee, ib. trustee in bankruptcy liable for rent falling due between adjudication and disclaimer of lease, ib. assignees not liable for breach after they assign away, ib. notice to landlord of the assignment unnecessary, il/. assignment to a pauper to escape liability for future rent not void on ground of fraud, unless there be a secret trust for benefit of assignor, 403, 404 assignee may be sued after assignment for breaches before assign- ment by him, 404 not liable for breaches committed before assignment to him, ib. fictions for double rent for holding over, ib. provisions of 11 Geo. 2, c. 19, s. 18. apply only where tenant lias given a valid notice, ib. holding over must be wilful and contumacious, ib. actions for double value, ib. 702 INDEX. LANDLORD AND TF.J^Al^iT— continued. Tenant's Liabilities — actions for double vahic — provision of 4 Geo. 2, c. 28, 404, 405 dcfoiulaiit may show that plaintiff waived notiee to quit or demand of possession, 405 snch waiver slionld now be specially pleaded, lb. Forms — statement of claim for rent, 398 — 405 statement of elaim for rent and royalties against assignees of lease of colliery and breach of covenant to work it in a miner-like manner, 405—407 statement of claim by trustee and cestuis que trust for breach of covenant to re^iair, 407 statement of clalin by tenant from year to year for breach of implied pro- mise of quiet enjoyment, 408 statement of defence to preceding claim, setting out waiver of right to proper notice by accepting shorter notice, 408 — 409 statement of claim for breach of covenant for title and quiet enjoyment, 409 statement of defence and counterclaim to preceding claim, 410 statement of claim against landlord, under agreement, for improvements by tenant, 410, 411 steUement of claim against landlord for breach of covenant to make im- provements on demised premises, 411, 412 statement ef defence (claim not given), setting out an eviction by landlord, 339 LEASE. See Laxiilord and Tenant. LEAVE AND LICENCE, form of defence of, to trespass de bonis asportatls, 601 LESSOR AND LESSEE. See Landlord and Tenant ; Recovery of Land. LIBEL. See Defamation. LIEN. See Trovei:. LIFE INSURANCE. See Insi^rance. LIGHT. See Easement. LIMITATION OF ACTIONS, tabular view of period of, in the various actions, 413 — 417 from what time statutes run, 417 — 419 in case of breach of contract, 411 in case of torts, 418 when currency of statutes suspended by disability of i:)laintiff, ib. when defendants beyond the seas statutes do not begin to run until their return, ib. when one of several co-debtors beyond seas, statutes only suspended as to him, ii}. meaning of "beyond seas," ib. provisions as to persons beyond seas apply to persons resident abroad as well as to natives of United Kingdom, 418, 419 when a statute of limitation once begins to run no supervening disability will interrupt it, 419 revival of barred claim by subsequent payment, ib. where two debts and one barred effect of payment made generally, ib. pajTnent by agent sufficient, unless authority exceeded, ib. INDEX. ro3 LIMITATION OF ACTl01:i^—conti)mrd. payment need not be made by debtor, 419 when made by third person, being himself also liable, the creditor cannot a]>propriate payment as made on behalf of other debtor, ib. payment by one co-debtor does not revive debt as against other or others, ih. payment need not be made to creditor, 419, 420 what is sutficient evidence of payment, 420 revival by acknowledgment or promise, 420—422 distinction between effect of promise and that of acknowledgment, 420 evidence of promise or acknowledgment, ih. acknowledgment by agent snfticient, ih. promise or acknowledgment by one joint debtor does not deprive other or others of benefit of any statute of limitations, 420, 421 by and to whom promise or acknowledgment to be made, 421 when to third person it must amount to a promise to pay the debt, ib. stronger evidence required to revive debt already barred than to suspend currency of statute, ib. Court to determine whether a document amounts to a promise or acknow- ledgment, ih. SO whether it is an absolute or conditional promise, ih. promise or acknowledgment after action insufficient, //'. the provision requiring promise or acknowledgment to be in writing signed, applies to debt on simple contract alleged byway of set off to which statute has been pleaded, ib. revival by promise or acknowledgment is confined to cases of debt, and does not apply to liability for breaches of contract not resulting in a debt, ib. the doctrine of revival does not apply to actions for wrongs independent of contract, ib. infant may by promise or acknowledgment revive debt for necessaries barred by statute, ib. revival of specialty debts (provisions of 3 & 4 Will. 4, c. 42), 421, 422 they may be revived by ackndwledgnient in writing signed by debtor or his agent, 422 or by part payment or part satisfaction of principal or interest, ib. act only applies to money remaining unpaid, and acknowledged to be due, ih. and not to other claims for acts or omissions in breach of covenant, ib. acknowledgment under act need not import a promise to pay, ib. and may therefore be made to a third person, ih. how minority or other disability to be plead(Kl in reply to a defence that debt is barred by statute, ib. now necessary to rejily speciallj" where ilebt revived by payment or by promise or acknowledgment, ib. revival of specialty debt under 3 & 4 Will. 4, c. 42 must be specially replied, ib. and reply must state whether revival was by part pa3'ment, part satisfac- tion or acknowledgment, ib. a rejily to a defenci- setting uji Statute of Limitations that the cause of action was fraudulently concealed is demurrable, ib. foreign statutes of limitation which bar the remedy and not the right have no api)lication here, ib. FOIIMS — statement of dcfrncr, setting up Statute of Limitations, 180 statement of defence of Statute of J^imitation to action for the recovery of land, 519, 520 reply that del)t was revived liy acknowledgment in writing, 104 reply that plaintiff was under disability at accrual of cause of action, &c., 180 704 INDEX. LIVERY STABLE KEEPER. Sec Trovkr, head "Liex." LODGING-HOUSE KEEPER. See Ixnkeepers. "LOST OR NOT LOST," POLICIES. Sec Ixsukance (Marine). LOST GKANT. Sec Easement.s. LUGGAGE, (personal) liability of can-i(n- for. See (.Common Carriers. MALICIOUS ARREST, iniprifsonment for del)t abolished generally by 32 & 33 Viet. c. 62, 423 certain cases in which a person may still be imprisoned for debt, ib. cases on which arrest on mesne process still lawful, ib. to found the action it must be shown that there was no reasonable or proliable cause for measures taken by defendant, ib. plaintiff must state and prove that proceedings have terminated in his favour, ib. Forms — statement of clcdm for maliciously procuring the arrest of the plaintiff in a civil suit, 423, 424 counter claim (claim not given) founded on malicious arrest, 424, 425 MALICIOUS PROSECUTION, when action for lies, 425, 426 criminal charge must have been made, 426 and dismissed, ib. or conviction quashed, ih. exception to the rule that charge must have been dismissed or conviction quashed, 426 absence of reasonable and probable cause and malice must be shown, ib. but malice may be presumed from absence of reasonable and probable cause, ib. definition of "reasonable and ]irobable cause," ib. necessary to state and show that plaintiff has been injured in person, repu- tation, or business, 426, 427 Forms — statement of claim for malicious prosecution on a false charge of embezzle- ment, 425 — 427 statement of defence to'preceding claim, setting out reasonable and probable cause and eownterchmn, for money appropriated, 427, 428 rej^ly to preceding statement of defence and counterclaim, 428, 429 rejoinder to preceding reply, 429 statement of claim for malicious prosecution on a charge of making a false claim against an estate in liquidation, 429, 430 statement of defence to preceding claim, aeitmg iovt\\, inter alia, an accord and satisfaction, 430, 431 MARINE INSURANCE. Sec Insurance. MARKET, statement of claim for obstruction of, 432 MARRIED WOMEN. Sec Husband and Wife. MASTER AND SERVANT. See Wrongful Dismissal. INDEX. 705 MEDICAL PRACTITIONEE, could not at common law maintain action for fees, 433 statutory provision (21 k 22 Vict. c. 90) giving power to, to recover for attendance and medicine, ih. may maintain action under statute without proof of express contract, ib. may recover against other person than patient where attendance, &c., given on credit of other person, ib. miist be registered under Act before they can recover fees, &c., ib. registration must be proved, though not disputed, ib. medical register, how far evidence of registration or non-registration, ib. Act (21 & 22 Vict. c. 90) does not affect chemists and druggists or dentists so far as selling, compounding, or dispensing medicines, ib. apothecaries — provision of 55 Geo. III. c. 194, relating to, ib. liability of physicians and surgeons for want of care or skill, ib. FOBMS — statement of claim by, for attendance and medicine, 433, 434 statement of claim against surgeons at an hospital for injury through un- skilful operation, 434, 435 statement of claim by executrices of surgeon-dentist for charges for profes- sional services, 435 statement of defence to preceding claim, 435, 436 statement of claim by medical man for balance of purchase-money on sale of practice, 436, 437. MESNE PROCESS, arrest on. See Maliciou.s Arrest. MESNE PROFITS, claim for, may be joined with claim for recovery of land, 515 For FoRM.s, see Recovery of Land. MINES. See Landlord and Tenant ; Trespass. MINORS. See Infancy. MISCHIEVOUS ANIMALS. See Ferociou.s Animals. MISJOINDER OF PARTIES. See Parties. MISNOMER IN WRIT. See Parties. illSREPRESENTATION, essential conditions to maintaining action for, 437 when by agent, ib. when by third person, ib. by fraudulent prospectus, 437, 433 See provisions of 30 & 31 Vict, c. 131, as to duty of directors to make certain disclosures in issuing prospectus. Addenda XXXV. incorporated company liable for, by agent, 438 misrepresentations as to solvency, credit, &c., of third person, ib. must be in writing, signed under 9 Geo. IV. c. 16, ib. signature of agents and partners, ib. how far it is necessary to show that plaintifl' was influenced liy the misre- presentation, 438, 439 defence that plaintiff relied on liis own observation or inquiries, 439 measure of damages in actions for, ib. Forms (and see Fraud) — statement of claim for raisrepre.senting the value of a business on the sale thereof, 437—440 statement of defence to preceding claim, tliat plaintiff relied on his owa in- vestigations, 440 z z 706 INDEX. jriSREPRESENTATION— co«laintiff by falling of lamp through its defective condition, 469 statement of defence to preceding claim, 469, 470 statement of claim io\- injury caused by negligence of defendant's servant causing the plaintiif to be run over in the street, 470 stofeHicwi o/cZ^/rt/icfi to preceding claim, 470, 471 statement of claim by servant against master for personal negligence while interposing in the work, 471, 472 ^tfttement of clairn hy servant against employers for injury througli defec- tive machine, 472 statement of claim against corporation and their contractor for injury through negligence causing outflow of water from a canal, 472 — 474 statement of defence of corporation to preceding claim, 474, 475 statement of defence oi contractovH, 475, 476 statement of claim against railway company for iujury through defective construction of lamp in railway carriage by reason of which it fell, and injured the ])laintiff, 477 statement of defence to preceding claim, 477, 478 statement of claim against railway company for injury to passenger caused through "over-shooting" jdatform, 478, 479 statcwAnt of defence to preceding claim (contributory negligence), 479, 480 stdtemcnt of claim for injuries through railway collision caused by negli- gence, 481 statement of claiin against railway company for injury caused by engine running without warning into siding used by the jtublic, 481, 482 statement of defence to preceding claim, 482 z z 2 708 INDEX. liEGUGE^CE— continued. FOEMS — statement of claim under Lord Campbell's Act by executor of person killed' by iiegli,5;ence of defendants (raihvay company), 482, 483 statement i)fclai)ii against pilot for negligence causing collision and damnge to plaintiff's barge, 483 sfafenieiit of (le fence to preceding claim, 484, 485 statement of claim against owner of ship for negligence causing collision,. 485, 486 statement of defence to preceding claim, 486, 487 NEVER INDEBTED, defence of, abolished. See Pleadings. NEW ASSIGNMENT, abolished, 87 amendment of pleadings now in all cases substituted, ih. NEWSPAPER, defence to libels in, under Lord Campbell's Act. See Dkfamation. NON-JOINDER OF PARTY. See Parties. NOT GUILTY, plea of, abolished, except Not Guilty by Statute, 47—49 NOT GUILTY BY STATUTE, defence of, when it may be ])leaded, 48 effect of the defence, 48, 49 FOEMS — statement of defence of, to action for unlawful distress, 304 NOTICE OF DISHONOUR. Sec Bills of Exchange. NOTICE IN LIEU OF CLAIM, Form, 604 should state venue, unless it is desired to have action tried in Middlesex, ih. NUISANCE, where indictable, plaintiff must have sustained excei^tional damage, 487 injury through defective fencing by i)ublic path or highway, ih. rule as to what constitutes a nuisance, ib. decisions, 487, 488 distinction between nuisances to property, and those affecting personal rights, 488 no defence that defendant only made reasonable use of his property, ih. cases of nuisance and negligence frequently mixed up, ih. distinction between cases where person on premises for business, and where merely by permission, at time of injury, ih. liability of occupier of dangerous premises to mere licensee, 489 rule that occupier of land liable for nuisance thereon, much modified, ih. when nuisance created by servants of person having a contract with occu- pier, ij). immediate employer of person causing injury liable, ih, exceptions to rule that contractor liable, 489, 490 owner of land not liable for nuisance on it after letting, 490 unless nuisance the result of mode of occupation contemplated by demise, ib. INDEX. 709^ NUISANCE — continued. proprietor of collected water uot liable where escape of it through extra- ordinary rainfall, 490 scmble adjoining occupier has no right of action against neighbouring occupier for permitting rubbish to accumulate against part3--wall, 495 FOEMS — statement of cJuiia for injury to wharf (by owner and ex-tenant) through improperly piling materials against party- wall by adjoining occupier, 487—491 statement of claim for injury to dwelling-house through negligent and reckless excavations in the vicinity thereof, 491 statement of claim for injury to plaintiil"'s cab through nuisance caused on highway by leaving rubbish unfeuced, 492 statement of defence to pi-eceding claim, ih. statement of claim for damage caused by nuisance or obstruction on public footpath, 493 statement of defence to preceding claim, 493, 494 statement of claim for nuisance to plaintiff's house caused by adjoining occupier permitting his drains to remain in defective condition, 494 statement of claim for nuisance by defendant causing rubbish to be accu- mulated against wall of plaintiff's house, 494, 495 clemiirrer to preceding claim, 495. And See note, 495 statement of claim for nuisance in causing the flooding of plaintiff's land, 496 statement of claim for nuisance in obstructing the plaintiff's right of way, 496—499 statement of defence to preceding claim, 499 — 501 NUL TIEL RECORD. &c Judgment ; "Defences." NUNQUAM INDEBITATIS, abolished. Sec Pleadings. PARTICULARS OF BREACHES OF PATENT. Sec Patents. PARTIES, how described in ordinary cases, 91 — 98 wliere eitlier party has a title or dignity, 93 where plaintilf has been erroneously described in writ, 99 wliere surviving plaintiff is suing, 99 where either party is an executor or administrator, ib. wliere executor or administrator of party deceased since writ issued is suing or sued, ib. where administrator during minority of executor is ]ilaintiff or de- fendant, 100 where husband and wife plaintiffs or defendants, ib. where husband sues or defends with wife as executrix or administra- trix, ib. where plaintiff is an infant, 101 where trustee in bankruptcy or liquidation sues, or is sued, ib. where ])artners sue or are sued, ib. And Sec Partners. wliere corporation a party, 101, 102 wliere cr)mjiany limited or otherwise a party, 102 where a banking com]iauy a Jiarty, ib. importance of rules to, in pleading, 1 outline of chapter on, 1, 2 710 INDEX. TARTlY.S—contimicd. actions not to be defeated by misjoinder of, 12 action not abated by marriage, death, or bankruptcy of either, 99, 100 how new ])arty joined in such cases, 100 who may ioiu as plaintiffs, 2 Order XVL, rule 1, p. 2 persons suing "jointly," 2 persons suing "alternatively," 3 difference between the former and present rules illustrated, 3, 4 persons claiming "severally," 4 interpretation of word "severally," 4 — 7 decisions on, 4 — 6 suggested inteq^retation of word, 6, 7 persons suing representatively, 7 Order XVL, r. 9, ib. who may be made defendants, 7 Order XVI., rr. 3— 5, 7, 8 defendants " in the alternative," 8 — 11 decisions, ib. comments on, 11 absolute right oi plaintiff a,t initiation of suit to join parties, 2 — 12 absolute right oi defendant to join now parties, 12 as to applications by either party during progress of suit for leave to vary parties, 12—20 Order XVL, rr. 2, 6, 13, ib. And See infra, Stkiking out Parties. as to 'plaintiff's — power of Court or judge on application of, to join or substitute another as new plaintiff, 12, 13, 15, IS decisions on, 13, 18 power of Court or judge on application of, to join new defendant, 13, 18 decisions, 13 — 15, 18 as to either party — general powers of the Court at any stage of action to vary parties, 15—20 no person to be added as plaintiff without his own consent, 15 persons added as defendants to be served with a summons or notice in a prescribed form, 16 applications to add, &c., to be made before trial by motion or summons, ih. at trial in a summary mannei", ib. new defendant not generally added without plaintiff's consent, 16—18 as to third parties applying to be made plaintiffs or defendants, 20 striking out parties improperly joined, 20 plaintiff and defendant equally entitled to apply, ib. defendant may be struck out on liis own application, ib. right of defendants claiming indemnity against third persons to bind them by judgment in the action. Order XVL rr. 17 — 21 right of such parties to be joined as defendants, 21 PAETNEKS. Sec Parties. may now sue in name of firm, 101 in such cases may be called on to declare forthwith the names and places of residences of all persons constituting firm, ib. cannot generally sue each other at law, %b. rule not affected by the Judicature Acts, 501, 502 exceptions to tlie rule, 501 may join in actions for slander against firm, 502 INDEX. 711 FARTSE^S— continued. are liable for tort committed by one of tliem if it be in connection with business of firm, 502 TOKMS — statement of claim by one partner against another for breach of deed of partnership, 501 — 503. statement of defence to preceding claim, setting out fi'aud inducing de- fendant to enter into the deed, 503 reply to preceding statement of defence, ^7^ counterclaim to action on note (commenced by specially endorsed writ and notice) setting up claim arising out of partnership transactions, 503 reply to preceding counterclaim, 504, 505 rejoinder to preceding reply, 505 statement of claim, combining claim by firm, and separate claim by indi- vidual member for debt due before formation of partnership, 578 PARTY AVALL, injmy to, by adjoining tenant or occupier, claim for. See Nuisance. PATENTS, conditions to maintaining action for infringing patent rights, 505 provisions of Patent Law Amendment Act, 1S52 (15 & 16 Vict., c. 83) s. 2, ib. as to registration of patents and licences, ib. assignments of, to be entered in " Register of Proprietors," 506 particulars of breaches of patent must be delivered witli statement of claim, 506 what amounts to an infringement of patent, ih. crown cannot be guilty of infringement of patent, ih. Defences — denial of breach, ih. prior use of patented article or-" no novelty," ih. what amounts to noveltj', 507 insufficiency of specification, ib. want of registration (where validity of assignment in (|uestion), ib. FOIIMS — statement of claim by patentee for infringement, 505- 508 statement of defence to ])receding claim, 509, 510 statement of claim for disclosing an invention about to be patented, '510, 511 PAWNBROKER. See Bailment. PAYMENT INTO COURT. /S'cc Pleadings ; "Statement of Defence." FOUMS — defence of, in action against agister of cattle for negligence, 118 defen^se of, in action against bailees for negligent dealing with goods, 146 defence of, in action against carriers, 270 defence of, in action by railway company for freight of coals, 273 defence of, in an action on a marine policy, 370 defence of, in action by outgoing against incoming tenant for price of fixtures, &c., 598 PENALTY— KOUM.S — statement of claim for penalty for acting as a medical man without (jualifi- cation, 511, 512 statement of defence to preceding claim, 512, 513 reply to preceding defence, 513 712 INDEX. T'E'N ALTY— contiiiucd. Foums — continued, statement of claim iu action for penalty for bribery at parliamentary elec- tion, 513, 514. statement of defence to preceding claim, 514 PHYSICIAN. See Medical Practitioner. PILOT, claim in action against for negligence causing collision. Sec Negligence. PLEADINGS, general rules and principles relating to, under new practice, 23, 90 names of, changed, 23 now to be delivered in the first instance, 91 rules as to computation of time for delivering, generallj', 92 unlimited power of extending time vested in Court, ib. no pleading to be delivered in Long Vacation, ib. effect of default in pleading. Sec Statement of Claim ; Statement of Defence ; Reply; Rejoinder, infra, under this heading, party entering action for trial delivers two copies at the office where entered, 91 and party entering judgment delivers one cox)y of pleadings, ib. when to be printed or written, ih. no more than three, without leave except joinder of issue, ib. old rules as to, still in force when not inconsistent with new, ib. Statement of Claim, 24 — 47 See forms of connnencement and termination, 91 as to venue or place to be named for trial, see Venue. when to be delivered, 91 when not necessary, 92 when delivered unnecessarily party delivering to pay costs occasioned thereby, ib. if }ilaintitf fail to deliver when necessaiy, defendant may apply to Court to dismiss action for want of prosecution, ih. specific allegation of material facts necessary, 24 common indebitatus counts abolished, ib. notice in lieu of statement of claim, 24 — 26 Avhen it may be used, 25 is a pleading which may be demurred to, if it faulty in law, 25, 26 prolixity in, forbidden, 26 rules to secure conciseness, 26 — 32 evidence not to be pleaded — decisions, 26 — 30 effect of documents merely to be stated, 30 except where precise words material, 30, 31 malice, fraud, &c. , to be merely alleged as a fact without setting out circumstances from which inferred, 31 setting out circumstances without expressly alleging fraud, &c., would be insufficient 36, 37 notice to be merely alleged as a fact, ib. contract or relation arising from, or to be proved by, letters, conversa- tions, or other circumstances, to be alleged as a fact ; and letters &c., may be referred to generally, 32 presumptions of law need not be averred, 32 cases illustrative of prolixity within the rules, 32 — 38 great prolixity ground for striking out apart from embarrassment, . 36 mode of dealing with prolixity by adversary, 37 he may, if embarrassing, apply to have the whole pleading struck out or amended, ib. ladings and dicta as to prolixity, 37 — 38 INDEX. 713 TLI.ADl'isGS— continued. Statement of Claim — continued. Court will always discoiu-age pi-olixity, ib. and will, in adjusting the costs of action, order party chargeable witli prolixity to pay costs occasioned tliereb}', 37 inferences and conclusions of law need not be stated, 38 plaintiff need not state under what form of action he is proceeding, 39 nor in what legal relation he stands to the defendant, ib. plaintiti' suing in respect of sepai-ate claims founded on separate facts to state them separately, 39 but separate prayers for relief need not follow the statement of each cause of action, ib. nor need separate statements or }>aragrap]is be assigned to any parti- cular prayer, 40 scandalous matter not to be pleaded, ib. unless it be relevant to the issue, ih. irrelevant matter will be struck out imless it be very triiling, 40, 41 facts must not be stated by way of anticipating the defence, 41 rule illustrated, 41 — 45 alternative or inconsistent claims for relief may be stated, 45 — 47 and supported by inconsistent facts, ib. but should not be mixed up with each other, and should be classed under separate headings, 37 Statement of Defence, 47 — 72 see forms of commencement and termination of, 94, 95, 96 time within whicli to be delivered, 94 effect of default in delivering wthin time, 92, 93 varies according to circimistances, ib. general issue abolished, 47 except "not guilty by Statute," 47, 48 in what cases such defence may now be pleaded, 48 effect of " not guilty by Statute," ib. as to form of, ib. See a form, 304 inconsistent defences may be pleaded without leave, 49, 50 payment into Court may be pleaded with denial of the plaintiff's right to recover, 53 except in actions foTinded on nuisance, 54—55 or involving r^uestions of character or title, or charges of fraud, 53 See judgment of Thesiger, L. J., on this subject in Burdan v. Greenwood.. Addenda XXXI. when separate defences pleaded, they must be kept distinct. Addenda XXXIV. mode of pleading whei-e defendant wishes to admit some allegation in previous pleading, 54 where he desircis to admit a part of an allegation or paragi-apli and deny the rest, ib. how allegations to be denied, 54 {a) must 1)e denied specifically, ib. (b) denials must not be evasive, 54, 55 decisions on these rules, 55 — 65 meaning of " not specifically denied" in r. 17, Ord. XIX., 56 defendant must state precisely what he means to deny, 57 otherwise his denial will be treated as ev.asive, ib. object of rule as to evasive denials that defendant should not merely deny ]ilaintiff's statenuMit but give the version he means to rely on, 58 — 60 denial that agreement entered into by himself, or any person authorised by him, not su(Iicientd(!nial that he authorised a particular ])erson, 60 — 63 specific denials of facts stated with circumstances insufficient, r. 22 Old. XIX., 63—65 714 INDEX. VL'EAmSGS— continued. Sttttcincnt of Defence — continued. liow jiavty ]>lea(lii]g sliould deal with evasive denials, 65 iiuiy apply under Ord. XXyil. to have ^ileading struck out or amended as embarrassing, ib. or may under Ord. XL., r. 11, apply for judgment as on admissions, 65 or on trial object to evidence against admission under evasive pleading, ib. how olijection raised that contract not made according to legal formalities, as that it was not in writing signed under Statute of Frauds, 65 — -67 cannot be taken by way of demurrer, 68 intention that defendant means to rely on such objection must distinctly aj)pear in statement of defence, 67 but not where objection previously taken on demurrer and over-ruled, 67, 6S where plaintiff sues in representative character, such character, if disputed, must be specifically denied, 68 if defendant intends to rely on matter not appearing in statement of claim he must set it out, 68, 69 unless it would not take opposite i)arty by surjirise, or would not raise new issues of fact not arising out of tlie pleadings, ib. Statute of Limitations must be pleaded where it only bars or suspends th& re'iaedy, 69 where right of plaintiff extinguished, objection may be taken by demurrer, 69, 70 in setting up new facts, rules relating to statements of claim must be- observed, 70 but, in setting forth ground for eipiitable defence, rule against prolixity considerably relaxed, 70, 71 defendant in action for recovery of land need not plead his title but only that he is in jiossession, 71, 72 unless he defends on equitable grounds, 72 matter arising after statement of defence may be pleaded by leave, 87, 88 CountcrcJaiiii — form of commencement, &c., 95, 96 when it can be pleaded, 72 — 78 defendant may join as parties to counterclaim other persons than plaintiffs in original action, 73 but defendant cannot have counterclaim against third person in which original plaintiff has no interest, 73, 74 decisions, 74 person secondarily liable with plaintiff in original action may be joined with him in counterclaim, 75 rjuccre, whether person alternatively liable with plaintiff can be joined as defendant to coimterclaim, 76 rjuccre, whether counterclaim must be connected with subject of original action where third person joined with plaintiff on counterclaim, ib. no objection that amount of counterclaim exceeds amount claimed in original action, 76; 77 in such cases, judgment is given for balance if counterclaim succeeds, 77 counterclaim not defective though claiming amount less than claimed by- plaintiff, ib. defendant may counterclaim separately against co-plaintiffs, 77, 78 quaere, whetlier matter arising after action may be a subject of counter- claim, 78 as to form of counterclaim, 78 — 83 is a separate pleading from defence though in same document, 78 not sufficient tliat facts relied on to constitute counterclaim should appear in defence and counterclaim or in defence alone, 79 such facts must appear in body of counterclaim, ib. INDEX. 715 VL'EADWGS— continued. Counterclaim — cmitinucd. but facts stated iu defence may be incorporated by reference in coimter- clalm, 82, S3 marked lines between defence and counterclaim unnecessary, 81 Bciihj, 83—86 for forms of commencement and termination of, seep. 97 to be delivered within three weeks from delivery of defence, ib. where defendant merely denies allegations in the claim, or sets out new facts which plaiutitf in his turn merely denies, then reply is merely a joinder of issue, 83 where plaintiff desires to set out new facts to meet new facts, he must plead them specially, S4 but nonewground of claim must be raised in reply, 84, and Addenda XXXV- where defendant has pleaded counterclaim, rejjly must be in nature of statement of defence, ih. but where defect in form of counterclaim, reply may be merely a joinder of issue, 8-4, 85 where defendant has properly pleaded counterclaim and plaintiff impro- perly joins issue, defendant cannot get judgment for amount of counter- claim, So, 86 ■ Ecjoinder, for forms of commencement, &c., 98 to be delivered within four days of reply, 98 the last pleading which can be pleaded without leave, i.e., when merely a joinder of issue, 86 but where new facts pleaded, leave is necessary, ib. only necessary where plaintiff has pleaded new facts to statement of defence, or where there is a counterclaim, ib. Amendment of Pleculiny-t, plaintiff may, without leave, amend once, 86, 87 defendant may, without leave, amend a counterclaim once, 87 no amendment by plaintiff or defendant without leave pending de- murrer, ib. plaintiff may not amend reply without leave, nor defendant his statement of defence, ib. power of Court or judge to authorise amendment unlimited, 87, 88 allowed on trial even where new case requiring fresh evidence therebj' raised, 88, 89 gi'ound of defence arising after pleading may bo added by leave, 87, 88 Demurrer — when admissible, 89 must specifically state whether to whole or part, anil if to part, what jtart of pleading demurred to, ib. must contain some ground in law for demurring, but on argument party not confined to grounds stated, 90 ■where grounds stated frivolous. Court will set aside demurrer with costs, ib. demurrer and defence to same pleading, or part of pleading, cannot be joined witliout leave, ib. on points of form now discouraged, ib. to jiart of statement of claim not sustainable if facts pleaded show right to any relief, ib. PLENE AD.MINfSTJtA FIT. See Executors and Administuatoi:.s. rOINTS OF DEMUliREK. >%c Demurkek. POLICE C0NSTA15LE. Sec False iMi-itisoNMENr. POLICY. See Insurance. 716 INDEX. PRESCRirTION". ^'cc Easements. PRESENTJIENT FOK ACCEPTANCE. Sec Bills op Exchange. PRESENTMENT FOR PAYMENT, ticc ib. PRINCIPAL AND AGENT. Sec Agent. PRINCIPAL AND SURETY. See Guarantee. PRIVILEGE. Sec Defamation. for form of defence of, sec 290, 291 PROBATE. Sec Executors and Auministiiators. PROMISSORY NOTE. See Bills of Exchange. PROSPECTUS, fraudulent. See Misrepresentation, QUIET POSSESSION, COVENANT FOR. Sec Landlord and Tenant. QUI TAM ACTIONS. See Penalty. RAILWAY COMPANY. See Common Carriers ; Negligence. REALTY. Sec Recovery of Land ; Sale of Land. RECOVERY OF LAND, pleadings in actions for recovery of land now necessary, 515 a person having merely equitable title may now sue for, ib. equitable defences may be pleaded, ib. action for, no longer local as regards venue, ih. peisons by whom suits for, may be instituted, ib. by landlords — not l)ound to prove his title against tenant, 515, 516 proof of tenancy and termination of, 516 as to tenancy at will, ib. as to tenancy from year to year, ib. tenancies for years, how created, ib. how terminated, ib. what necessary to establish where landlord proceeds under common law rights, 516, 517 statutory remedy given to landlords to recover possession of their property, 517 what amounts to a waiver of a right of entry, ih. by heirs-at-law, ib. essential averments in action by, ib. by devisees — what essential to support action by, 517 in the case of copyholds, 517, 518 in the case of leaseholds, 518 ordinary defences to actions by, ih. by executors and administrators, ib. by mortgagees, ib. by execution creditor, 518, 519 by trustees in bankruptcy, 519 by parsons for recovery of glebe land and rectory, ib. what allegations necessai'y in statement of claim, ib. INDEX. 717 KECOVERY OF LAl^J)— continued. Forms — . r. r i statement of claim by public trustees to recover possession of ioreshores, statement of defence to preceding claim setting up, inter alia, Statute of Limitations, 519, 520 . n , r r <• i. statement of chum by lessor against lessee for recovery of laud lor torteiture tlirougli breach of covenant, 520 . statement of claim against assignee of lease for recovery ot premises lor forfeiture through breach of covenant, 520-522 statement of claim by lessee of osier beds to recover possession against intruder, 522 statement of claim by devisees to recover devised property, bid statement of defence to preceding claim, 523, 524 statement of claim by devisees of copyhold land for recovery thereot, 594 525 statement of claim by grantee of reversion against assignee of term for recovery of land for forfeiture through breaches of covenant, and damages for breaches, 525, 526 stofe»ic7inial that he lias taken out certificate, ih. denial that bill has been delivered where there has been no special agreement, ib. denial of retainer, ih. denial that alleged services were rendered, ib. plaintiff's negligence, ignorance, &c., no defence unless it deprives de- fendant of all benefit, ib. what amoimts to negligence or ignorance disentitling solicitor to re- cover, 576, 577 where there has been no benefit solicitor cannot recover costs out of pocket, ib. where he conmienced action in Court which lie should have known had no jurisdiction, and which was restrained l)y prohibition, held not entitled to recover, ib. where he does useless work he cannot recover for it, ib. where there are separate charges for such woi'k and for beneficial services, the defendant will be entitled to verdict on such charges, 576, 577 , ^ , . ^ advisability of making solicitor's negligence subject of counterclaim, 57/> where client sued by'solicitor who acted as agent of another solicitor, client may plead that credit given to principal solicitor, ib. actions against solicitors : — solicitor lialde for gross negligence or ignorance only, ib. definition of " gross negligence " in the case of a solicitor, 577, 57S general powers of solicitors over suit, 57S implied power of solicitor to compromise suit, ih. liability of firm of solicitors for client's money coming into hands of member of firm, ib. defences to actions against solicitors, ib. denial of retainer, ib. denial of breach of duty, ib. denial of damage, ib. Statute of Limitations, ib. Sec ante, Limitation of Action. Forms— statement of claim by firm of solicitors for costs due to firm, and liy one of firm for separate claim, 575— 579 statement of defence and counterclaim to preceding claim, 579 — 581 reijly, 58lj 582 stofeMCTii o/cZ««H for solicitor's charges, 582 statement of defence and coxmterclaim to preceding claim, 582, 583 statement of claim by solicitor for sum promised on a contingency in con- sideration of services, 583 statement of defence to preceding claim, setting up fraud and that the alleged promise was not in writing pursuant to the Solicitors' Act, 1870, 584 statement of defence (claim not given) in action for solicitor's charges set- ting up special agreement, 584, 585 statement of defence (claim not given) in action for solicitor's charges set- ting up that the plaintiff relied on a guarantee fund for payment of his- charges, 585, 586 statement of claim against a solicitor for negligence, 586, 587 stcctement of defence to preceding claim, 587, 588 re2)ly, 588 INDEX. 723 SPECIAL DAMAGE, statement of claim for, by reason of rise in prices during delay m carriage, 236 SPECIALLY IXDORSED AVKIT, claim by. Sec Pleadings. STATUTE OF FRAUDS. &c Pleadings, " Statement of Defence ; " Sale OF Goods. forms of statement of defence setting up non-comx)Iiance witli, 339, 552 STATUTE OF LIMITATIONS. See Limitation of Actions ; Pleadings. form of defence setting up, 206 STOCK, when a stockbroker may recover differences, 588, 589 Form — statement of claim hy stockhrokev against principal for recovery of "dif- ferences," 591, 592 statement of defence and counterclaiin to preceding claim, 593 reply to preceding defence, ib. rejoinder to preceding reply, 594 STOCKBROKER. Sec Sto( k. STOPPAGE IN TRANSITU, definition of right of, 594 how it may be lost, ih. Form — stote?/i«»< o/c?am against railway company for failing to stop in transitu when so ordered by consignor, 594, 595 SUICIDE, efi'ect of, on policy of life insurance. See Insukance (Life). decisions as to what included in word, ib. SUPPORT, taking away, from foundation of house. See Nuisance. form of statement of claim for, ili. SURETY. Sec Guarantee. SURGEON. See Medical Phactitionei;. SURRENDER ACCEPTED. Sec Use and Occupation undek head of "Defences." SURVEYOR, . . , . . statement of claim by, for services rendered in connexion with projected railway, 595, 596 statement of defence to preceding claim, 596 TAXES, certain, wliich tenant may deduct from rent next accruing due. bcc Landlord and Tenani'. 3 A 2 VS-t INDEX. TENANT. Sec Landlord and Tenant. statement of claim by outgoing against inconiug tenant for fixtures, &c., left on farm bj^ plaintift" at request of defendant, 596 statement of defence to preceding claim, setting up, inter alia, tender and payment into Coi;rt, 597, 598 reply to preceding defence, 598, 599 rejoinder and demurrer, 599 TENANT IN COMMON, when one may sue another for trespass on land held in common. Sec Trespass Quark Clausum Fregit. TENANT IN COMMON OF CHATTEL, when on(i may sue other for conversion of, or injury to, chattel. Sec Trover ; Trespass de Bonis Asrortatis. TENDER, when a good defence, 599 to what extent it is an admission, ih. to and by whom it should be made, 599 how made, 599, 600 when tender of larger sum bad, 600 in what kind of money to be made, ih. generally money must be pioduced and offered unconditionally, ih. as to whether debtor entitled to receipt, ih. Forms — statements of di fence ^ setting up, 118, 599, 600 TERM OF YEARS, how created. See Landlord and Tenant. TITLE, when it must be stated in actions for recovery of land. See Recovery of Land. TITLE OR DIGNITY, to be stated in description of parties in pleading. Sec Pleadings. TITLE, slander of. See Defamation. TIME, for delivering pleadings. Sec Pleadings. TRADE MARKS, goods sold with. Sec Warranty. TRAVERSE, of performance of conditions in-ecedent. Sec Conditions Precedent. TRESPASS DE BOX IS ASrOIlTATIS, when action of, lies, 600, 601 when action does not lie, ih. plaintiff must have actual or constructive possession of chattel, ih. action for, lies by one joint owner of a chattel against another for injury, &c., thereto, ih. FOEMS^ statement of claim for trespass and injury to horse, 600, GOl statement of defence to preceding claim, 601, 602 reply to preceding defence, 602 stcttcmesit of clcdm for tresjiass to and removal of cliattels, 602 INDEX. 72.J TEESPASS QVARE CLAFSUM FREGIT, what amounts to a trespass on land, 603 there may be trespass, without intention, and thougli no damage done, 603 several actions may be brought where trespass continuing, ib. who is the jiroper person to sue, ib. landlord may sue when reversionary interest affected, ib. but not when the enjoyment of the tenant merely is affected, 603, 604 plaintiff must have a present possessory title, 604 when one joint tenant or tenant in common may sue the other or others for, ib. owner of soil may maintain action against surface OAvner for trespass not justified by exercise of his rights, 604 venue in actions for, no longer local, ib. how far locus in quo must now be described in the pleadings, ib. Defences — when act done inevitably to avoid pi'essing danger, ib. that defendant went on land of plaintiff to retake cattle which went thereon through plaintiff's defective fence, ib. denial of plaintiff 's ja-operty, when a defence, 604, 605 leave and licence, 605 parol siifKcient, ib. that defendant is entitled to easement over the land, ib. as to creation and origin of easements. Sec Easements. when easements implied, ib. ways of necessity, ib. continuous and apparent easements, 605, 606 extent of right, 605, 606 kinds of prescri}ition, at common law, ib. value of as a defence, ib. by statute, ib. periods to be ex(;luded from computation of time, ib. what "enjoyment" meant by statute, 607 difl'erent way of pleading prescription at common law and by statute, 606 essential that easement continue down to time of action in case of common law prescription, 607 aliter as to statutory prescription, ib. prescription by presumption of lost grant after 20 years' user, ib. Forms— statement oj claim for trespass on private road, 603 — 60S .statement of defence to preceding claim, 608 statement of claim for trespass to mine (including statement for trovir of coal), 608, 609 stateiiiciit of d< fence to preceding claim, 609, 610 reply to preceding defence, 610 sfctement of claim for trespassing on land in pursuit of game, ib. statement of defence to preceding claim, 610, 611 statement of drain for trespass on land, 611 statcTncnt of defence to preceding claim setting up right of way and case- ment by prescription under statute and lost grant respectively, 611 — 613 statement r trespasses, (7'. statement of dejr.nce (claim not given) setting up immemorial user, 614, 615 7-6 INDEX. TIIESPASS TO TEEHOX. ,Scc Assault and Battery; False Immuson- MENT. TEOVER, when action of, lies, 615 distinction between, and action of detinnc, 297 property and possession essential to action of, ib. Avhethcr bailors or bailees should sue in certain circumstances, 615, 616 when joint owner may sue co-owner for conversion, 616 vendee of goods not sold on credit, and not paid for, cannot sue vendor for conversion by refusal to deliver, ih. j)ersons having special property in goods may in some circumstances sue for their conversion though they never come to their hands, 616, 617 mere possession sufficient as against wrongdoers, 617 unless the latter can show an authority under person having better title, ih. Avhat constitutes a conversion, Ih. decisions, ih. misdelivery by carrier ^vlien conversion, ih. 2>erson to whom goods delivered by carrier by mistake may be guilty of conversion in enabling third person to obtain delivery of them, 617 dealing with goods by assignee or vendee thereof from person having no title, ih. person authorised by factor to sell goods not liable in trover for dealing with them, 617, 618 destruction of chattel when a conversion, 618 refusal to deliver on demand when a conversion, ih. where goods attached in defendant's liands, ih. refusal by agent when sufficient to constitute a conversion, ih. what is a demand, ih. decisions, ih. measure of damages in actions of trover, 618, 619 Defences — denial of plaintiff's title, ih. lien definition of, ih. two kinds of, ih. what is a special, ib. instances of, ih. no answer to special, that plaintiff has a set-off of higher amount than that for which lien claimed, ib. general, how established, 620 instances of how waived or lost, 620, 621 where goods fraudulently removed are retaken without force, lien revives, 621 statutory bar of claim does not destroy lien, ih. FoKMS — statement of claim by trustee in bankrui^tcy for conversion of horses of bankrupt, 615—621 statement of defence to preceding claim setting up trainer's lien, 621, 622 reiily, 622 rejoinder, ib. statement of claim for conversion of part of cargo sold to pay for repairs of vessel and resold to defendant, 622, 623 statement of defence to preceding claim, setting out that the goods were legally sold for a proper purpose, and alleging good title to them, 623, 624 INDEX. /Z/ TROYER—coniuiueJ. Foiisis — statement of claim for conversion of plaintiff's goods (including claim lor money paid by plaintiff to defendant), 624—626 statement of da i/ii against iiawnbrokL-r for loss of pledge, stating cause of action alternatively in trover and detinue, 626, 627 statement of claim for conversion of pony, 627 statement of defence to preceding claim, asserting defendant's ownership and alleging that the jiony was fraudulently obtained bj' the person who sold it to the plaintiff, and that on discovery of fraud defendant dis- affirmed the sale, 627, 628 statement of claim for conversion of goods sold to 2>laintiff and afterwards fraudulently transferred by A-endor to defendant, 628 statement of claim iov trover of coal, combined with claim for tresy)ass in mine, 608, 608 TRUSTEE. ,S'cc Pleadings ; Parties; BANKRUiTrv. UNDUE INFLUENCE, defence of, to action for breach of promise. AVc Breach of Promise. USE AND OCCUPATION. Sec Landlord and Tenant. origin of action for, 629 what plaintiff must prove, ib. what title plaintiff must have, ib. no reversion in plaintiff necessary, ib. occupation, actual or const ni.ctlcc, by defendant essential, ib. adverse possession of defendant insufficient, ib. occupation by third person by permission of defendant or by his tenant or assignee sufficient, ib. two persons signing agreement liable, though only one enters, ib. one joint lessee over-holding does not make other liable, ib. the relation of landlord and tenant need not be ex2)ressly created, 02lJ — 630 as where defendant enters under contract of sale which goes off and he remains in, 630 Defences — expiry of plaintiff's titlation of warehouse, kc, 629 — 632 staternciit of claim by vendor of land for occupation by vendee pending sale to him, 633, 634 VENDOR AND PURCHASER. See Sale of Land. 728 INDEX. VENUE, local now abolislied, 93 plaintiff may fix place for trial whicli is to bs stated at end of statement of claim, ib. but defendant may apply to have venue varied, 'ih. if no ]ilaee of trial named in statement of claim, action to be tried in Middlesex, ib. WAGEE, statement of claim for return of money paid by plaintitf in payment of bet for defendant, 459—460 WAITER. Sec Release; Rescission; "Lien," under head o/ Trover. of notice, see 408, 409 WAREHOUSE, statement of clavm for warehouse rent, 634, 635 WAREHOUSEMAN, statement of claim against for negligence in dealing with goods, 143 WARRANTY, generally no implied warranty of title on sale of chattel, 635 when warranty implied, 635, 636 as to imredeemed pledges sold at auction, ib. as to implied warranty of qualiti/ on sale of chattels, 636 where chattels in esse, and open to inspection, maxim carcat cmjJtor ap- plies, ib. so on sale of definite chattel, actual condition of which may be ascer- tained, ib. cases in which warranty of quality implied, ib. implied warranty on sale of goods with tiude mark, ib. warranty by servant or agent, 637 when they have an implied authority to warrant, ib. express warranty after contract of sale completed invalid, ib. knowledge of defect by seller need not be averred in statement of claim for breach of warranty, ib. aliter whei-e plaintiif sues on ground of fraud, ib. where breach of warranty denied, plaintitf nmst show that defect existed at time of sale, ib. measure of damages in actions for breach of warranty, ib. in actions for breach of warranty of horses, plaiutiH;' may sometimes recover for their keep, 637, 638 conseipiential damages, 638 r)r.FEXCES. — denial of warranty, ib. when no consideration appears in statement of claim, defendant should demur, ib. denial of breach, ib. how pleaded, ib. in actions for price of unascertained goods sold by warranted description vendee may plead that plaintitt' was not ready and willing to deliver goods coiresponding with the description, ib. in such action for jirice of ascertained chattels breach of warranty no defence, ib. but defendant may now set up breach of warranty by way of counter- claim, ib. INDEX. 729 "WARE ANT Y—co/ti!t/utct^. Forms — statement of claim for breacli of warranty on sale of goods, 635 — 640 statement of defence to preceding claim, 640, 641 ■reply, 641 statement of claim for breacli of warrant}^ on sale of a steam engine, Ih. statement of defence to preceding claim, setting up, inter alia, an acconland satisfaction, 641, 642 statement of defence (to claim by six-cially endorsed writ for £80, price of barge, &;c.), setting up breach of warranty and fraud, 642, 643 WATERCOURSE. See Easements. "WAYS. Sec Easements ; Tkespass. WHARFIXGER. Sec Bailment. WIFE. See HusB.iXD and Wife. WINDOWS, right of access of light to. See Easement. WORK AND LABOUR. contracts for not generally required to be in wilting, 644 when "not to be performed within a year " must be in writing, si^'ned under Statute of Frauds, ib. what must lie averred in statements of claim for, ib. where stipulated that payments for, to be made on certificate of architect, such certificate a condition precedent, ib. even where certificate fraudulently withheld, ib. but employer and arclutect liable to contractor in tort for withholding it, ib. what constitutes such a cei-tificate, ib. where tliere is a WTitten contract and plaintiff claims for extras, ib. if employer has received no benefit from work from its being impro2)erlv executed he is not liable, ib. wliere the thing being made or the material is destroyed before completion, rule for determining when emploj^er liable, 644, 645 Forms — statement of claim for work, kc, done under a building contract, 644, 645 statement of claim for work done under contract and for extras, 645, 646 statement of claim by commercial traveller for salary, 646 statement of claim for remuneration for literary work, 646 — 648 statement of claim b}'' an author against publishers for stipulated price of a work of fiction, 648 statement of claim by surveyor and engineer for services in conjunction with projected railway, 595 WRIT, specially indorsed, claim by. Sec Pleading. WRONGFT'L DISMISSAL, an indefinite hiring of servant without mention of time is 'prinid facie yearly, 648 even though wages payable monthly, ib. alil.er where jiayable weekly, ib. damages on wrongful dismissal where hiring for a year. 648, 649 730 INDEX. WRONGFUL DISMISSAL— co)!/i«?f/'(7. geiunal rule as to tlie period of hiring of menial or domestic servants, 649 may be controlled by custom, -ib. decisions as to who are domestic servants Avithin this rule, ib. notice to terminatt' monthly service may be given at any time, ib. general engagement of agent at specified sum per annum a yearly hiring, ih. unless rule controlled by custom, ib. decisions as to -what constitutes a yearly hiring, ib. clerks in London entitled to three months' notice, ib. advertising and canvassing agents to one month's notice, ih. measure of damage generally, ib. servant or agent on wrongful dismissal not necessarily entitled to wages, &c., for whole of unexpired term of service, &c., 049, 650 as amount may be reduced liy probability of having other employment during such time, ih. master not bound to assign reason on dismissal, 650 if there was sufficient cause it is immaterial whether it was the real one, ib. Avhere master condones cause for dismissal, cannot afterwards dismiss on ground thereof, (7;. misconduct no answer to action for wages accrued due before dismissal, ih.- Defence — dismissal for disobedience, ih. for misconduct, ib. claim of partnership with employer misconduct justifying dismissal, ih. other instances, ih. Forms — statement of claim by j'early ser^'ant for damages for, with claim in alter- native for arrears of wages, 648 — 651 dateincnt of defence and countcrclaiv) to preceding claim, 651, 652 reply, 652," 6^3 statemefit of claim for wrongful dismissal liy engineer engaged for four years, 653, 654 statement (f defenee to preceding claim, setting up misconduct justifying; dismissal, 654, 655 statement of claim by shipping agent for wrongful termination of engage- ment, 655 statement of claim by domestic servant for month's wages in lieu of notice, 656 statement of defenee to preceding claim, setting up indecent conduct of plaintiff justifying dismissal, ih. THE END. BPADBUKY, ACINFW, & CO., PRINTERS, WHITEFRIARS. Ill Svo, TntRD Edition- (Novemlior), 1877, price 25?., elotli, MAYNE'S TREATISE LAW OF DAMAGES djirb 6bition. BV JOHN D. MAYNE, Of tlie Inner Temjile, B;iiTi.ster-;it-Law ; LUMLEY SMITH, Of the Inner Temple, Barrister-at-Law. "During the tiventii-tu'o years vMrh have elapsed since the 'piihlimtlon of this well-known work it reputation has been steadily growimj, and it has long since become the recognised anthoritii on th] importo.ntstibjectof^vhich it treats."— Law Magazine axd Review. "This edition of what has become a standard WDrk has the advantage of appearing under tlie supervision of the original autlmr as well as of Mr. Lumley Smith, the editor of the second edition. The resiilt is most satisfactory. Mr. Lumley Smith's edition was ably and conscientiously pre- pared, and we are glad to find that tlie reader still enjoys the benefit of his accuracy and learning. M the same time the book has, doubtless, been imiiroved by the reapi)earance of its author as co- editor. The earlier part, indeed, has been to a considerable extent entirely rewritten. Upon the general jirinciples, according to which damages are to be as.sessed in actions of contract, llmllfy V. r.axcndaJe (St Ex. :U1) still remains the leading authority, and furnishes the text fur the discussion contained in the second chapter of Mr. Mayne's book. Properly understood aiul limited, the rule ]iro])Osed in that case, although in one respect not very haiipily worded, is a sound one, and has been repeatedly appro\cd both in England and Amei-ica. Damages may, according to the judgment of the Court of Exchequer, be recovered if they are such as ' may fairly and reasonably be con.sidered as arising either naturally. I.e., according to the usual cour.se of things from the breach of contract itself, or such as may rea- s(tnably be supposed to have been in the contem- plation of both parties at the time they made the contract, as the jirobable result of the breach of it.' Tliero is no ditficulty as to the first alternative in principle, altliough sometimes it may not be very easy to estimate the amount of damage. IJut tlie second alternative has given rise to mucli discus- sion, and it may be doubted whetlier tlie rule so expressed is of much .service ; for, generally sjieak- ing, parties contemplate the perfonnance .and not tlie violation of their contracts. Tlic class of ca.se» which it is intended to cover is that in wliich a contract is made under special circumstaiices. and damages which would not arise in the usual course of things from a breach do arise from thosi' circumstances. If such circumstiiiices are not known to the jiarty who lireuks tiie contract, it is clear that lie is not liable. If they arc known, then, according to Ifadley v. Jkixmdale, lie woiihl be liable, since the resulting damage must be iield within his cumtemplation, and so, in that (■r^^r, tin- natural coiise(|iicnce of the breacli. This proposi- tion, however, must now be t'lkcn witli consider- able modilic^ation. The subsequent decisions. which are concisely summarizeil by .Mr. Mayne, have established that mere knowledge of special cir- cumstances is not enongli, unless it can be inferred from the whole transaction that the contractor consented to become liable to tlie extra (lamn"e This limitation is obviously just, especially iu'ttie case of i>ersons, such as common carriers who have no option to refuse the contract. Mere know- ledge on their part of spciiil rirrunistaniis ..ledit not, and according to tlic j;, /./ nf tlir jiiil-vs^in the Exchequer Cliaiiibci- in ll,:n:r y. Mi^flii ml R.iil- way Company (21 W. R. 481, L. R. S C. P. 131) would not involve the carrier in additional respon- sibility. Jlr. Mayne's criticism of the numerous cases in which this matter has been considered leaves nothing to be desired, and tlie rules he de- duces therefrom (pp. 32, 33) appear to us to exhaust the subject. Mr. Mayne's remarks on damages in actions of tort are brief. AVe agree with him that in such actions the courts are governed by far looser prin- ciples than in contracts ; indeed, sometimes it is impossible to say they are governed by any princi- ples at all. In actions for injuries to the person or rejiutation, for example, a judge cannot do more than give a general direction to the jury to "iAe what the facts proved in their judgment required Mid, according to the better opinion, they may "ive damages 'for examjile's sake,' and mulct a rich man more heavily than a poor one. In actions for injuries to property, however, ' vindictive ' or 'exemplary' damages cannot, except in very rare eases, ]»• awaided, but must be limited, as iii contract, tn tlHii.tunl liarm sustained. Thesubj.,1 ,,i ivni.itcucss of damage is treated atconsiilriMl.lr Iciigtliliv .Mr. Ma viie, and we notice that niucli II. w iimtfrr has been added. Thus the recent casr of l;i,lni.i v. Smith (24 W. R. 487, I Ex. 1). '.II) fiiniislies the author with an ojijior- tunity of iliscussing the well-known rule in irard V. ircf/,-.s(7 Hiiig. 211) that injury resulting from tlie reiietition of a slamler is not actionable. The rule has always seemed to uS a strange one, if a man is to be made resiionsiblc for the natural (■onsr.|u.nrrs of his acts. For every one who ntt.isa -vi i- eediu'e." — Irish Law Times. " The authors deserve the gi-atitude and appi'c- ' Mr. W. Downes Griffith appears to hii\-e met with the success which we confidently antiei]iated for his book when it first came out. His s.xstem of annotation remains fuller than that of nn 'st of his contemporaries, and rises not unfre(piently to the have often observed) references to cited cases to ((/; the authorities is of the utmost eonseipKince to those gentlemen in the legal profession whose libraries are of limited extent. This work is highly commendable . . . ." — Lavj Journal. " Of the many editions of the Judicature Acts which have apjieared, there is certainly none which can be fairlv compared with it. The original i)ortioii of the work -the editorial notes— is admirably done. It ;ippears" to embody, as stated in the title page, ' all the rejiorted cases to Michaelmas sittings 1S77,' and these cases are fully and clearly digested : but in addition to the work of citation, the editors have .supplied a large amount of valuable annotation on the old rules of pleading, practice, and procedure, as .-iffeeted by the new. We may refer as examples to the Notes on Pleading, p. 254 ; Demurrer, p. 288 ; Discovery and Inspection, p. 806 ; and Change of Parties, ji. 417. A cursory glance at these notes will satisfy any lawyer as to the value of the work. Tlie Time-table, which contanis in double column a list of the various proceedings in an action, and a statement of the time limited in respect of each, is sure to be appreciated by the practitioner. The Index, which extends over 164 pages, is full and couiplete."— JVcit' ZeaUiwl Jiirist. A CATALOGUE LAIV IVORKS PUBLISHED AND SOLD BY STEVENS & HAYNES, BELL YARD, TEMPLE BAR, LONDON. BOOKS BOUND IX THE BEST BINDINGS. Works in all Classes of Literature supplied to Order, FOREIGN BOOKS IMPORTED. LIBRARIES VALUED FOR PROBATE, PARTNERSHIP, AND OTHER PURPOSES. LIBRARIES OR SMALL COLLECTIONS OF BOOKS PURCHASED. A large Stock of Reports of the various Courts of England, Ireland, and Scotland, ahvays on hand. Catalogues and Estimates Furnished, and Orders Promptly Executed. Note. — To avoid conftcsing our firtn with any of a similar name, we beg to notify that we have no connexion whatever with any other house of business, and z<.'e respectfully request that Corre- s pondeiits will take special care to direct all communications to the above uaiues a)ui address. STEVENS & HAYNES, BELL YARD, TEMPLE BAR. INDEX OF SUBJECTS. PAGE ADMIRALTY LAW— Jones 14 Kay 17 AGRICULTURAL HOLDINGS— Brown 26 ARTICLED CLERKS— See STUDENTS. ARTIZANS AND LABOURERS' DWELLINGS— Lloyd 13 ASSAULTS— 3>.' MAGISTERIAL LAW. BALLOT ACT— Busliby 33 BANKRUPTCY— Ringwood 15 Roche and Hazlitt 9 BAR EXAMINATION JOURNAL 39 BIBLIOGRAPHY 40 BILLS OF LADING— Kay 17 BILLS OF SALE— Roche and Hazlitt 9 BIRTHS AND DEATHS REGIS- TRATION— Flaxman 4^ CAPACITY See PRIVATE INTERNATIONAL LAW. CAPITAL PUNISHMENT— Copinger 42 CARRIERS— A',? RAILWAY LAW. „ SHIPMASTERS. CHANCERY DIVISION, Practice of— Brown's Edition of Snell ... 22 Griffith and Loveland ... 6 Indermaur 25 And See EQUITY. CHARITABLE TRUSTS— Cooke 10 Whiteford 20 CHURCH AND CLERGY— Brice 8 CIVIL LAW— .S>^ ROMAN LAW. CODES— Argles 32 COLLISIONS AT SEA— Kay 17 COLONIAL LAW— Cape Colony 38 Forsyth 12 Nf-w Zealand Jurist 18 New Zealand Statutes ... 18 COMMON LAW— ''*''" Indermaur 24 COMMON PLEAS DIVISION,* Practice of — Griffith and Loveland .... 6 Indermaur 25 COMPANIES LAW— Brice 16 Buckley 17 Reilly's Reports 29 Smith 29 See MAGISTERIAL LAW. COMPENSATION— Browne 19 Lloyd IT COMPULSORY PURCHASE— * Browne 19 CONSTABLES— ^^^ POLICE GUIDE. CONSTITUTIONAL LAW AND HISTORY— Forsyth 12 Taswell-Langmead .... 21 Thomas 28 CONTRACTS— Kay 17 CONVEYANCING, Practice of— Copinger (Title Deeds) ... 45 CONVEYANCING, Precedents in— Copinger's Index to . . . ,40 CONVEYANCING, Principles of— Deane 21 COPYRIGHT— Copinger ^c CORPORATIONS— Brice 15 Browne . , lo COSTS, Crown Office- Short 8 COVENANTS FOR TITLE—* Copinger ^c CREW OF A SHIP— Kay ......... 17 CRIMINAL LAW— Copinger 43 Harris 27 Moncreiff .... 42 6-^^ MAGISTERIAL LAW.' CROWN LAW — Forsyth 12 Hall .' ! ! 30 Kelyng ] 35 Taswell-Langmead .... 21 Thomas ^S CROWN PRACTICE— Corner ^ . 10 STEVENS & HAYNES, BELL YAED, TEMPLE BAB. INDEX. OF SVBJECTS~co7ih'nued. CUSTOM AND USAGE— page Browne 19 Mayne 38 CUSTOMS— 5Vf MAGISTERIAL LAW. DAMAGES— Ma)iie 31 DECREES AND ORDERS— Pemberton 41 DICTIONARIES— Brown 26 DIGESTS— Law Magazine Quarterly Digest . 37 Indian Jurist 38 Menzies' Digest of Cape Reports 38 DISCOVERY AND INTERROGA- TORIES— Griffith and Loveland's Edition of the Judicature Acts .... 6 DOMICIL— See PRIVATE INTERNATIONAL LAW. DUJCH LAW 38 ECCLESIASTICAL LAW— Brice 8 EDUCATION ACTS— ^,?^ MAGISTERIAL LAW. ELECTION LAW & PETITIONS— Bushby 33 Hardcastle 33 O'Malley and Hardcastle ... 33 EQUITY— Choyce Cases 35 Pemberton 32 and 41 Snell 22 EVIDENCE— See USAGES AND CUSTOMS. EXAMINATION OF STUDENTS— Bar Examination Journal . . 39 Indermaur 24 and 25 EXCHEQUER DIVISION, Practice of— Griffith and Loveland .... 6 Indermaur 25 EXTRADITION— Clarke 44 See MAGISTERIAL LAW. FACTORIES— iVv MAGISTERIAL LAW. FISHERIES— See MAGISTERIAL LAW. FIXTURES- Brown 26 FOREIGN LAW— Arjjles 32 Dutch Law 38 Foote 36 Harris 47 FORGERY— See MAGISTERIAL LAW. FRAUDULENT CONVEYANCES— May 20 GAIUS INSTITUTES— Harris 20 26 44 -.6 GAME LAWS— page Loclce 32 See MAGISTERIAL LAW. HACKNEY CARRIAGES— See MAGISTERIAL LAW. HINDU LAW— Coghlan 28 Cunningham 38 Mayne 38 Michell 44 HISTORY— Braithwaite 41 Taswell-Langmead .... 21 HYPOTHECATION— Kay 17 INDEX TO PRECEDENTS— Copinger 40 INDIA— See HINDU LAW. INFANTS— Simpson 43 INJUNCTIONS— Jovce II INSTITUTE OF THE LAW- Brown's Law Dictionary . INTERNATIONAL LAW— Clarke ........ Foote Law Magazine 37 INTERROGATORIES AND DIS- COVERY— Griffith and Loveland's Edition of the Judicature Acts .... 6 INTOXICATING LIQUORS— ^'^ MAGISTERIAL LAW. JOINT STOCK COMPANIES— See COMPANIES. JUDGMENTS AND ORDERS— Pemberton 41 JUDICATURE ACTS— Cunningham and Mattinson . . 7 Griffith 6 Indermaur 25 JURISPRUDENCE— Forsyth 12 JUSTINIAN'S INSTITUTES— Campbell 47 Harris 20 LANDS CLAUSES CONSOLIDA- TION ACT— Lloyd 13 LARCENY— See MAGISTERIAL LAW. LAW DICTIONARY— Brown 26 LAW MAGAZINE & REVIEW . 37 LEADING CASES— Common Law 25 Constitutional Law .... 28 E'juity and Conve}'ancing . . 25 Hindu Law 20 STEVENS & HAYNES, BELL YARD, TEMPLE BAR. INDEX OF SUBJECTS— con^mued. PAGE LEADING STATUTES— Thomas 28 LEASES— Copinger 45 LEGACY AND SUCCESSION— Hanson 10 LEGITIMACY AND MARRIAGE— St^g PRIVATE INTERNA- TIONAL LAW. LICENSES— S^e MAGISTERIAL LAW. LIFE ASSURANCE— Buckley 29 Reilly 29 LIMITATION OF ACTIONS— Banning ..,.,.. 42 LIQUIDATION with CREDITORS— Roche and Hazlitt 9 And see BANKRUPTCY. LLOYD'S BONDS 14 MAGISTERIAL LAW— Greenwood and Martin ... 46 MALICIOUS INJURIES— See MAGISTERIAL LAW. MARRIAGE and LEGITIMACY— Foote 36 MARRIED WOMEN'S PRO- PERTY ACTS— Walker's Edition of Griffith , . 40 MASTER AND SERVANT— See SHIPMASTERS & SEA- MEN. MASTERS AND SERVANTS— ^■^•^ MAGISTERIAL LAW. MERCANTILE LAW .... 32 See SHIPMASTERS & SEA- MEN. „ STOPPAGE IN TRANSITU. MERCHANDISE MARKS— Daniel 42 MINES-- Harris 47 See MAGISTERIAL LAW. MORTMAIN— See CHARITABLE TRUSTS. NATIONALITY— See PRIVATE INTERNA- TIONAL LAW. NEGLIGENCE— Campbell 40 NEW ZEALAND— Jurist Journal and Reports . . 18 Statutes 18 OBLIGATIONS— Brown's Savigny 20 PARLIAMENT— Taswell-Langniead Thomas . . . 21 ... 28 PARLIAMENTARY PRACTICE— Browne 19 Smethurst 18 PARTITION— Walker 43 PASSENGERS— See MAGISTERIAL LAW. „ RAILWAY LAW. PASSENGERS AT* SEA— Kay 17 PAWNBROKERS— See MAGISTERIAL LAW. PERSONATION and IDENTITY— Moriarty 14 PILOTS— Kay 17 POLICE GUIDE— Greenwood and Martin ... 46 POLLUTION OF RIVERS— Higgins 30 PRACTICE BOOKS— Bankruptcy 9 Companies Law ... 29 and 39 Compensation 13 Compulsory Purchase. ... 19 Conveyancing 45 Damages 31 Ecclesiastical Law 8 Election Petitions 33 Equity 22 and 32 High Court of Justice . . 6 and 25 Injunctions n Judicature Acts. . , . 6 and 25 Magisterial 46 Pleading, Precedents of . . . 7 Privy Council 44 Railways 14 Railway Commission .... 19 Rolling 19 Supreme Court of Judicature 6 and 25 PRECEDENTS OF PLEADING— Cunningham and Mattinson . . 7 PRIMOGENITURE— Lloyd If PRINCIPLES— Brice (Corporations) .... 16 Browne (Rating) jg Deane (Conveyancing) ... 23 Harris (Criminal Law) ... 27 Houston (Mercantile) ... .32 Indermaur (Common Law) . . 24 Joyce (Injunctions) . . . . n Ringwood (Bankruptcy) . . .15 Snell (Equity) 22 STEVENS & HAYNES, BELL YABD, TEMPLE BAB. INDEX OF SUBJECTS— con^mued. PAGE PRIORITY — Robinson 3^ PRIVATE INTERNATIONAL LAW— Foote 36 PRIVY COUNCIL— Michell 44 PROBATE - Hanson 10 PUBLIC WORSHIP— • Brice 8 QUEEN'S BENCH DIVISION, Practice of— Griffith and Loveland .... 6 Indermaur 25 QUESTIONS FOR STUDENTS— Indermaur 2$ Bar Examination Journal ... 39 RAILWAYS— Browne 19 Godefroi and Shortt . . . . 14 Goodeve 29 Lloyd 13 See MAGISTERIAL LAW. RATING— Browne 19 REAL PROPERTY— Deane 23 REFEREES COURT— Smethurst 18 REGISTRATION OF BIRTHS AND DEATHS— Flaxman 43 REMINISCENCE— Braithwaite 41 REPORTS— Bellewe 34 Brooke 35 Choyce Cases 35 Cooke 35 Cunningham 34 Election Petitions 33 Finlason 32 Gibbs, Case of Lord Henry Sey- mour's Will 10 Kelyng, John 35 Kelynge, William ..... 35 New Zealand Jurist . . . . 18 Reilly 29 Shower (Cases in Parliament) . 34 RITUAL— Brice 8 ROMAN LAW— Brown's Analysis of Savigny . . 20 Campbell 47 Harris 20 SALVAGE— Jones 14 Kay 17 SANITARY ACTS— .S^^ MAGISTERIAL LAW. SCOTLAND, LAWS OF— Robertson 4^ SEA SHORE— Hall 30 SHIPMASTERS AND SEAMEN— Kay 17 SOCIETIES— See CORPORATIONS. STAGE CARRIAGES— See MAGISTERIAL LAW. STAMP DUTIES— Copinger 40 and 45 STATUTE OF LIMITATIONS— Banning 4* STATUTES— Hardcastle 9 New Zealand ^8 Revised Edition 12 Thomas 28 STOPPAGE IN TRANSITU— Houston 32 Kay 17 STUDENTS' BOOKS . 20—28, 39, 47 SUCCESSION DUTIES— Hanson ^° SUCCESSION LAWS— Lloyd 13 SUPREME COURT OF JUDICA- TURE, Practice of— Cunningham and Mattinson . . 7 Griffith and Loveland 6 Indermaur 25 TELEGRAPHS— See MAGISTERIAL LAW. TITLE DEEDS— Copinger 45 TOWNS IMPROVEMENTS— See MAGISTERIAL LAW. TRADE MARKS— Daniel 4^ TREASON— Kelyng 35 Taswell-Langmead . . . .21 TRIALS— Queen v. Gumey 32 ULTRA VIRES— Brice 16 USAGES AND CUSTOMS— Browne '9 Mayne 38 VOLUNTARY CONVEYANCES— May 29 WATER COURSES— Higgins 30 WILLS, CONSTRUCTION OF— Gibbs, Report of Wallace v. Attorney-General .... 10 STEVENS & HAYNES, BELL TARD, TEMPLE BAH. In one thick volume, 8vo., price 30^., clotli lettered, THE SUPREME COURT OF JUDICATURE ACTS 1873, 1875, & 1877: THE APPELLATE JURISDICTION ACT, 1876, AND THE RULES, ORDERS, AND COSTS THEREUNDER: EDITED WITH NOTES, REFERENCES, AND A COPIOUS ANALYTICAL INDEX. ^aonir fbttion. EMBODYING ALL THE REPORTED GASES TO MICHAELMAS SITTINGS, 1877, AND A TIME TABLE. BY WILLIAM DOWNES GRIFFITH, Of the Inner Temple, Barrister-at-Law and a Judge of County Courts ; Author of " Griffith's Bankruptcy," &c. AND RICHARD LOVELAND LOVELAND, Of the Inner Tem])le, Barrister-at-Law ; Editor of " Kelyng's Crown Cases," " Shower's Cases in Parliament," and " Hall's Essay on the Rights of the Crown in the Seashore," &c. j?£:fiejvs. " Our modern reform is real, and it is certainly beneficent, and depending as it does much upon the decisions of the judges, it is no small advantage that it is so ably explained by such authors and editors as Mr. Griffith and Mr. Love\and."—T/te Laiv Times. rank of an Excursus on a branch of Law." — Law Magazine and Review. " If continued popularity should not await this most practical and exhaustive exposition of the working of the Supreme Court of Judicature Acts and Orders, we can only say that it will not be because the editors have not fulfilled their aim, in rendering it a sure and useful guide to the new pro- cedure." — /risA Law Times. "Much care and industry have been shown in the collection of the cases and the arrangement of the book, and the facilities given by the mode of printing enable the reader to find his way readily to tuU '^"c^r 'v^ ^%' °' ^"J'" ^^ '"^y '"''■^ '° ""■ " The authors deserve the gratitude and appre- «\r y^urnai. ^;3ti„„ ^f ,^^^^ ^^o consult this work, for (Is we _ Mr. W. Downes Griffith appears to have met have often observed) references to cited cases to ail with the success which we confidently anticipated the authorities is of the utmost consequence to for his book when it first came out. His system of those gentlemen in the legal profession whose annotation remains fuller than that of most of his libraries are of limited extent. This work is highly contemporaries, and rises not unfrequently to the j commendable . . . ." — law Journal. ''Of the many editions of the Judicature Acts which have appeared, there is certainly none which can be fairlv compared with it. The original portion of the work— the editorial notes— is admirably done. It appears to embody, as stated in the title page, 'all the reported cases to Michaelmas sittings 1877,' and these cases are fully and clearly digested ; but in addition to the work of citation, the editors have supplied a large amount of valuable annotation on the old rules of pleading, practice, and procedure, as affected by the new. We may refer as examples to the Notes on Pleading, p. 254 ; Demurrer, p. 288 ; Discovery and Inspection, p. 306; and Change of Parties, p 417. A cursory glance at these notes will satisfy any lawyer as to the value of the work. The Time-table, which contains in double column a list of the various proceedings in an action, and a statement of the time limited in respect ol' each, is sure to be appreciated by the practitioner. The Index, which extends over 164 pages, is full and complete."— hew Zealand Juris i. STEVENS & HAYNES, BELL YAED, TEMPLE BAK. In 8vo. (October), 1878, price 2Ss., cloth, A SELECTION OF PRECEDENTS OF PLEADING SEnticr tijc Jutiiraturc Hcts IN THE COMMON LAW DIVISIONS. With Notes explanatory of the different Causes of Action and Grounds of Defence ; and an Introductory Treatise on the Present Rules and Principles of Pleading as illustrated by the various Decisions down to the present time. By JOHN CUNNINGHAM, Of the Middle Temple, Barrister-at-Law, Author of the "Law Relating to Parliamentary and Municipal Elections ;" and MILES WALKER MATTINSON, Of Gray's Inn, Barrister-at-Law. REVIEWS. IRISH LAW TIMES. " The notes are very pertinent and satisfactory ; the introductory chapters on the present sy^ tcm of pleading are excellent, and the precedents will be found very useful." LAW JOURNAL. " Good pleading in the present day demands literary talent, as well as legal knowledge. The art of composition is a rare accomplishment, even among well educated men ; and so, when the pleader is called upon to state his case with brevity and lucidity, he is fairly overwhelmed with the task. For the sake of these incompetent writers — and they are, for obvious reasons, to be found among very learned and very clever lawyers — we welcome the work before us. A man who is a good lawyer and a master of the art of English composition will, perhaps, never trouble himself to use this book. He will do his work quicker and better by mastering his case, and proceeding to state it in his own style. But the indifferent scholars will certainly derive very great help from this volume ; and we earnestly commend it to their notice, not only for their own sakes, but also in mercy to the more delicate and fastidious eyes and ears of literary lawyers. . . . For pupils, also, and beginners at the bar, the book will be very useful ; because these, never having served an apprenticeship to the old system, are very apt to omit allegations, essential in certain cases to the validity of a pleading. The authors of the book before us have introduced their collection of forms to the reader by an essay on pleading under the new rules ; and we think that a perusal of this essay, which is written in an attractive style, would do a great deal of good both to barristers and masters. . . . The order of precedents is determined by their subject-matter, and the several subjects follow according to the rule of alphabetical precedence. In the apper>dix the rules on pleading are collected in one view, and there is a full index to the woik. We think that the authors have deserved well of the profession, and that they have produced a book likely to grow in favour even among those who at first might conceive a prejudice against a work of this kind." LAW MAGAZINE AND REVIEW. "Messrs. Cunningham and Mattinson come forward opportunely to take up ground which, since the passing of the Judicature Acts, seems to be awaiting the first occupant. A work which, in the compass of a single portable volume, contains a brief Treatise on the Principles and Rules of Pleading, and a care- fully annotated body of Forms which have to a yreat extent gone through the entirely separate sifting processes of Chambers, Court, and Judges' Chambers, cannot fail to be a most useful companion in the Practitioner's daily routine- And readiness of reference, clearly one uf the desiderata in such a book, has been studied by the authors in their adoption of the alphabetical arrangement for the Precedents." SOLICITORS' JOURNAL. " The authors of the present work state in their preface that the various pleadings which are contained in the body of the work have, in nearly every case, been settled by counse, ol standing at the bar, and formed part of the record in cases that have been carried on up to trial, or actually tried, since the Judicature Acts came into operation. Such pleadings, as the authors observe, possess the advantage of having passed the adverse criticism of opposing counsel, and, in some c.iscs, the ordeal of a contest at judges' chambers or in court. As far as we can judge, the authors have exercised a careful and sound judgment in their selection. The work contains a treatise on the new rules of pleading which is well written, but would be.ar compression. To most of the precedents there are notes referring to the decisions which are most useful to the pleader in connection with the particular cause of action involved. We are disposed to think ttiat this is the most valuable portion of the work. It is extremely convenient to have some work which collects notes of this sort in connection with pleading." STEVENS & HATNES, BELL TASD, TEMPLE BAB. In 8vo., price los., cloth, THE TAXATION OF COSTS IN THE CROWN OFFICE. COMPRISING A COLLECTION OF Bills of Costs in the various matters Taxable in that Office; INCLUDING COSTS UPON THE PROSECUTION OF FRAUDULENT BANKRUPTS, AND ON APPEALS FROM INFERIOR COURTS; TOGETHER WITH A TABLE OF COURT FEES, AND A SCALE OF COSTS USUALLY ALLOWED TO SOLICITORS ON THE TAXATION OF COSTS ON THE CROWN SIDE OF THE QUEEN'S BENCH DIVISION OF THE HIGH COURT OF JUSTICE. By FREDK. H. SHORT, CHIEF CLERK IN THE CROWN OFFICE. " This is decidedly a useful work on the subject of those costs which are liable to be taxed before the Queen's Coroner and Attorney (for which latter name that of ' Solicitor' might now well be substituted), or before the master of the Crown Office ; in fact, such a book is almost indispensable when preparing costs for taxation in the Crown Office, or when taxing an opponent's costs. Country solicitors will find the scale relating to bankruptcy prosecutions of especial use, as such costs are taxed in the Crown Office. The 'general observations' constitute a useful feature in this manual." — Law Times. "This book contains a collection of bills of costs in the various matters taxable in the Crown Office. When we point out that the only scale of costs available for the use of the general body of solicitors is that published in Mr. Corner's book on 'Crown Practice' in 1844, we have said quite enough to prove the utility of the work before us. " In them Mr. Short deals with ' Perusals,' ' Copies for Use,' ' Affidavits,' ' Agency,' ' Correspondence,' 'Close Copies.' 'Counsel,' 'Affidavit of Increase,' and kindred matters; and .idds some useful remarks on taxation of ' Costs in Bankruptcy Prosecutions,' ' Qzio yVarranto,' ' AJ andamus' ' Indictments,' and 'Rules.' " We have rarely seen a work of this character better executed, and we feel sure that it will be thoroughly appreciated." — Lmu Jotirnal. "The recent revision of the old scale of costs in the Crown Office renders the appearance of this work particularly opportune, and it cannot fail to be welcomed by practitioners. Mr. Short gives, in the first place, a scale of costs usually allowed to Solicitors on the taxation of costs in the Crown Office, and then bills of costs in various matters. These are well arranged and clearly printed." — Solicitors' Journal. In one volume, 8vo., 1875, price 28j., cloth, THE LAW RELATING TO PUBLIC WORSHIP; WITH SPECIAL REFERENCE TO a^amcjs of Eitual anD <3Dcnamentatiou, AND THE MEANS OF SECURING THE DUE OBSERVANCE THEREOF, AND CONTAINING IN EXTENSO, WITH NOTES AND REFERENCES, THE PUBLIC WORSHIP REGULATION ACT, 1874 ; THE CHURCH DISCIPLINE ACT; THE VARIOUS ACTS OF UNIFORMITY; THE LITURGIES OF 1549, 1552, and 1559, COMPARED WITH THE PRESENT RUBRIC; THE CANONS; THE ARTICLES; AND THE INJUNCTIONS, ADVERTISEMENTS, AND OTHER ORIGINAL DOCUMENTS OF LEGAL AUTHORITY. By SEWARD BRICE, LL.D., OF THE INNER TEMPLE, BARRISTER-AT-LAW. " To the vast number of people 7uho in various ways are interested in the working of the Act, Mr. Bricis volume cannot fail to be welcome. It is well conceived and carefully executed.'' — The Times. STEVENS & HATITES, BELL 7ASD, TEMPLE BAB. In one volume, 8vo., 1879, price , cloth. A TREATISE ON THE RULES WHICH GOVERN THE CONSTRUCTION AND EFFECT OF STATUTORY LAW. By henry HARDCASTLE, OF THE INNER TEMPLE, B ARR ISTER-AT-LAW. Editor of " Bushbys Election Laiv" and Joint- Editor of "Election Petition Reports!' In one thick volume, 8vo., 1873, pi'ice 30^., cloth, THE LAW AND PRACTICE IN BANKRUPTCY; Comprising the Bankruptcy Act, 1869 ; the Debtors Act, 1869 ; the Insolvent Debtors and Bankruptcy Repeal Act, 1869 ; together with the General Rules and Orders in Bankruptcy, at Common Law and in the County Courts ; With the Practice on Procedure to Adjudication, Procedure to Liquidation, Procedure to Composition, and Procedure under Debtors' Summons, Scales of Costs and of Allowance to Witnesses. Copious Notes, References, and a very full Index. Second Edition. By Henry Philip Roche and William Hazlitt, Barristers-at-Law, and Registrars of the Court of Bankruptcy. From the LAW JOURNAL. "The work before us also contains the Debtors Act of 1869, the Bankruptcy Repeal Actof i86g, the Abscondint; Debtors Act, 1869, with several other Acts and all the General Rules in Bankruptcy, printed and annotated in the same manner as the principal Act. There is also a very full collection of forms and bills of costs; but tlu portioti of the luork which is decidedly i/ie most novel, andn I83I-I836 I 10 ,, I837-I842 . I 12 6 ,, I 843-1 846 . I II 6 ,, I 847- I 850 • I 7 6 ,, I85I-I853 • I 4 ,, I854-I856 . I 6 )> I857-I86I I 10 ,, I862-I865 I 10 ,, I866-I867- 8 I 10 6 ,, STEVENS & HAYNES, BELL YARD, TEMPLE BAR. 13 In 8vo., 1S77, price 25^., cloth, THE LAW OF COMPENSATION FOR LANDS, HOUSES, &c.. Under the Lands Clauses, Railways Clauses Consolidation and Metropolitan Acts, THE ARTIZANS & LABORERS' DWELLINGS IMPROVEMENT ACT, 1875. WITH A FULL COLLECTION OF FORMS AND PRECEDENTS, jpouit]^ lEtiitton, Much enlarged, with ma?iy additional Fort7is, including Precedctits oj Bills of Costs. By eyre LLOYD, of the Inner Temple, Barrister-at-Law. " A fourth edition of Mr. Lloyd" svaluabte treatise tias just been />ubl is tied _ Fe^v brandies of tJte law affect so many and suck important interests as that which gives to private indixnduals compensationfor property compulsorilv taken for tlw purpose of public itnprovements. The questions luliich arise under the different Acts of Pariiajiient now in force are very numero7is and diffcult, and a collection oJ decided Cases epitomised and well arranged, as tSiey are in Mr. Lloyd's wO'/i, cannot fail to be a welcome addition to tlie library of all who are interested in landed property, wlietlier as owtiers, land agents, public officers or solicitors." — Midland Counties Herald. " It is with much gratification that we have to satisfactory it appears to us in every point of express our unhesitating opinion that Mr. Lloyd's ; view — comprehensive in its scope, exhaustive in its treatise will prove thoroughly satisfactory to the I treatment, sound in its exposition." — Irish Law profession, and to the public at large. Thoroughly ' Times. " In providing the legal profession with a book which contains the decisions of the Courts of Law and Equity upon the various statutes relating to the Law of Comfensation, Mr i yre Lloyd has long since left all competitors in tJu: distance, and his book may now be considered the standard work upon the subject. The plan of Mr. Lloyd's book is generally /Mown, atta its lucidity is appreciated; the present quite fulf Is all t/ie promises of the preceding editions, and contains in addition to other matter a com- plete set of forms under the Artizans and Labourers Act, 1875, and specimens of Bills of Costs, which ■will be found a novel feature, ej:tre7nely useful to legal practitioners."^VSTlCii OF the Peace. " The work is one of great value. It deals with of the compensation. All the statutes bearing on a complicated and difficult branch of the law, and it ' the subject have been collated, all the law on the deals with ifexhaustively. It is not merely a com- subject collected, and the decisions conveniently pilation or collection of the statutes bearing on the arranged. With this comprehensiveness of scope subject, with occasional notes and references. is united a clear statement of principles, and prac- Rather it may be described as a comprehensive tical handling of the points which are likely to be treatise on, and digest of, the law relating to the contested, and especially of those in which the compulsory acquisition and purchase of land by decisions are oppo.-ed or differently undentood." — public companies and municipal and other local , Local Government Chronicle. authorities, and the different modes of assessment I In 8w., idiyy, price ys,, doth, THE SUCCESSION LAWS OF CHEISTIAN COUNTRIES, WITH SPECIAL REFERENCE TO top: law of primogeniture as it exists in england. By eyre LLOYD, B.A., OF THE INNER TEMPLE, BARRISTER-AT-LAW. AiiiJior of '■'■ The Law of Compensation utiderthe Latids Clauses Consolidation Acts^' Q^C. "Mr. Lloyd has given us a very useful and compendious little digest of the laws oJ succession which exist at the present day in the principal States of both Europe and America ; and we should .say it is a book which not only every lawyer, but every politician and statesman, would do well to add to his library. — Pall Mall Gazette. , . , , " Mr. Eyre Lloyd compresses into little more than eighty pages a considerable amount of matter both valuable and interesting; and his quotations from Diplomatic Reports by the present Lord Lytton, and other distinguished public servants, throw a picturesque light on a narrative much of which is necessarily dry reading. We can confidently recommend Mr. Eyre Lloyd's new work as one of great practical utility, if, indeed, it be not unique in our language, as a book of reference on Foreign Succession Laws. — Law Mai^azitic and Revieiv. ^_ ■i.- e " Mr. Kyrc Lloyd has composed a useful and interesting abstract of the laws on the subject of succes- sion to property in Christian countries, with especial reference to the law of primogeniture in England. — .'Saturday Review. . . ... " This is a very useful little handy book on foreign succession laws. It contains in an epitomised form information which would have to be sought for through a great numoer ot scattered authorities and foreign law treatises, and will be found of great value to the lawyer, the writer, and the political ^'mA^vA."— Standard. 14 STEVENS & HAYNES, BELL YARD, TEMPLE BAR. In one thick volume, 8vo., 1869, price 32^., cloth, THE LAW OF RAILWAY COMPANIES. Comprising the Companies Clauses, the Lands Clauses, the Railways Clauses Consoli- dation Acts, the Railway Companies Act, 1867, and the Regulation of Railways Act, 1868 ; with Notes of Cases on all the Sections, brought down to the end of the year 1868 ; together with an Appendix giving all the other material Acts relating to Railways, and the Standing Orders of the Houses of Lords and Commons ; and a copious Index. By Henry Godefroi, of Lincoln's Inn, and John Shortt, of the Middle Temple, Barristers-at-Law. "The title of this book is the best possible explanation of its contents. Here we have all the statutes afiecting Railway Companies, with the standing orders of Parliament, in a volume exqui- sitely printed, and of most convenient size and form. We have also, what in effect to the prac- titioner is a complete manual of reference of all the decided cases on Railway Law, together with an index of so copious and accurate a nature, as to render the discovery of every section and every authority easy in the highest degree. . . . We find pages of authorities on ' transfer of shares,' ' calls,' 'forfeiture of shares,' '.fc/. _/«.,' 'Lloyd's bonds,' ' contracts by companies,' and ' dividends.' Then comes a mass of matter relating to the voluntary and compulsory acquisition of lands by Railway Companies, while the ' compensation ' cases stretch over some fifty pages. So also under the third statute, there are a dozen pages on the powers and duties of Railway Companies in the construction of their works, while the liability of the Companies as carriers of passengers and goods is also elucidated in the most elaborate style. The ' Rating of Rail- ways ' adds several pages of authorities. . . . We believe that we have said enough to show that this book will prove to be of pre-eminent value to prac- titioners, both before Parliamentary committees and in the Courts of Law and Equity." — Law Journal. In 8vo., price 2s. 6d., MORIARTY ON PERSONATION AND DISPUTED IDENTITY AND THEIR TESTS. In a handy volume, crown 8vo., 1870, price los. 6d., cloth, THE LAW OF SALVAGE, As administered in the High Court of Admiralty and the County Courts ; • with the Principal Authorities, English and American, brought down to the present time ; and an Appendix, containing Statutes, Forms, Table of Fees, etc. By Edwyn Jones, of Gray's Inn, Barrister-at-Law. " This book will be of infinite service to lawyers practising in the maritime law courts and to those engaged in shipping. In short, Mr. Jones's book is a complete guide, and is full of information upon all phases of the subject, tersely and clearly written. It will be quite as useful to, as it is as much needed by, the American lawyer as the English, because the salvage laws of America and England are much alike, and IVIr. Jones makes constant reference to American authorities. The book is all the more welcome because the sub- ject upon which it treats is but little understood except by a favoured few. Now, however, if in- terested people remain ignorant it is their own fault. Mr. Jones has ^treated a very compli- cated and difficult subject in a simple and con- cise manner, and his success is commensurate with his simplicity of style." — Liverpool Journal oj Commerce. " An admirable treatise on an important branch of jurisprudence is compiled by Mr. Edwyn Jones, of Gray's Inn, Barrister-at-Law, who, in a compact volume, gives us a very comprehensive statement of 'The Law of Salvage,' as administered in the High Court of Admiralty and the County Courts ; with the principal authorities, English and American, brought down to the present time, and an Appen- dix containing statutes, forms, tables of fees. &c. Mr. Jones has consulted a wide range of cases, and systematised with much skill and clearness the leading principles deducible from numerous judg- ments and precedents, both here and in the United States. His work is likely to become a text-book on the law in question." — Daily News. In 8vo., 1867, price u., sewed, LLOW'S BONDS: THEIR NATURE AND USES. By Henry Jefferd Tarrant, of the Middle Temple, Barrister-at-Law. STEVENS & HAYNES, BELL YARD, TEMPLE BAR. 15 In Octavo, i^t^jc), price los., cloth, THE PRINCIPLES OF BANKRUPTCY. WITH AN APPENDIX, CONTAINING THE GENERAL RULES of 1870, 1871, 1873, and 1878, Scale of Costs, and the Bills of Sale Act, 1878. BY EICHAED EINGWOOD, B.A., Of the Middle Temple, Esq., Barrister-at-Law; late Scholar of Trinity College, Diibliti. TAB LE OF C O N T EN T S . PREFACE — TABLE OF CASES — TABLE OF SECTIONS. CHAPTER L— Introductory. CHAPTER IL— Who may be made Bankrupt. CHAPTER IIL— Proceedings to Ad- judication. Acts of Bankruptcy — Petition — Commencement of the Bankruptcy. CHAPTER IV.— Effects of Adjudi- cation. CHAPTER v. — Property Divisible AMONG Creditors, Provisions of the Act — Reputed Ownership — Voluntary Settlement and Fraudulent Preferences — Pro- tected Transactions with Bankrupt — Discovery of Bankrupt's Property —Bills of Sale. CHAPTER VL— Debts Provable in Bankruptcy : — Preferential Debts and Claims — Mutual Debts — Accommodation Paper — Distinct Contracts— Secured Creditors — Interest on Debts. Section 2. — Dividends. CHAPTER VII. — Conduct of the Bankrupt, and Power of the Court over Him. CHAPTER VIIL— Trustee and Com- mittee of Inspection : — General — Dealing of Trustee with Bankrupt's Property — Power of Trustee to Compromise Claims, accept Composition from Bankrupt, and make the Bankrupt an Allow- ance. CHAPTER IX.— Annulling an Ad- judication. CHAPTER X.— Bankruptcy of Pari- ners. CHAPTER XL— Close of the Bank- ruptcy — Discharge of the Bankrupt, and Release of the Trustee. CHAPTER XII. — Liquidation by Arrangement— Composition with Creditors. CHAPTER XIII. —Appeals. CHAPTER XIV.— Costs. APPENDIX :— Bankruptcy Rules, 1870, 1871, 1873, 1878— Scale of Costs— Bills of Sale Act, 1878. INDEX, " The author of this convenient handbook sees the point upon which we insist elsewheie in regard to the chief aim of any system of Banknipicy Law which should deserve the title of National. . . • • • There can be no question that a sound measure of Reform is greatly needed, and would be welcomed by all parties in the United Kingdom. Pending this amendment it is necessary to know the Law as it is, and those who have to deal with the subject in any of its practical legal aspects will do well to consult Mr. Ringwood's unpretending but useful volume." — Law Magazine. "Mr. Ringwood tells us in his preface that his work is chiefly intended for students, and It will no doubt be usful to ihem. On the other hand, the 'principles of bankruptcy are njt dealt with by Mr. Ring*, od in the way we expected fr. m t .e title of his book, which is, in fact, the Bankruptcy Act of 1869 itself arranged— n-j doubt at c .nsidcrable l.ibour— in about the most convenient form in which it can be presented to ihe student. The Table of Cases is care'ully prepared, referen-e i cing made in each case to all the contemporary law reporls. Mr. Riiigwood has f. irly and concisely stated the new and the old law as to bills of sale, and as to the rights of trustees in b.inkruptcy m connection therewith. —Law limes. "The above work is written by a distinguished srholar of Trinity College, Dublin. Mr. Ringwood has chosen a most difficult and unattractive subject, but he has shown sound judgment and skill in the manner in which he has executed his task. His book does not profess to be an exhaustive treatise on bankruptcy law, yet in a neat and compact volume we have a vast amount of well-digested matter. Ihe reader is not distracted and puzzled by having a long list of cases flung at him at the end of each page, as the general effect of the law is stated in a few well-seUcted sentences and a reference given to ihe leading decisions only on the subject An excellent index, and a table of cases, where references to lour sets of contemporary reports may be seen at a glance, show the industry and care with which the work has been done." — Daily Pafcr. 16 STEVENS & HAYNES, BELL YAKD, TEMPLE BAR. THE LAW OP CORPORATIONS. In one volume of One Thousand Pages, royal 8vo,, 1877, price 42j-., cloth, A TREATISE ON THE DOCTRINE OF ULTRA VIRES: BEING An Investigation of the Principles vi^hich Limit the Capacities, Powers, and Liabilities of Corporations, AND MORE ESPECIALLY OF JOINT STOCK COMPANIES. SECOND EDITION. By SEWARD BRICE, M.A., LL.D.. London, Oj the Inner Temple, Barrister-at-Law, REVIEWS. "Despite its unpromising and cabalistic title, attd tlie technical nature of its subject, it has so reconi7)ie7ided itself to the profession that a second edition is called for within three years from the first publication; and to this call Mr. Brice has responded with the present volujne, the development of which in excess of its predecessor is remarkable even in the atinals of law books. Sixteen hundred new cases have been introduced, and, instead of five hundred pages octavo, the treatise 7iow occupies a thousand very much larger pages. This increase in bulk is partly dtee to tJie incorporation with tlie English law on tlie subject of tlie more important American and Colonial doctrines and decisions — a course which we thitik Mr. Brice vtiise in adol>ting, since the judgments of American tribunals are constantly becoming mo7-e frequently quoted and more respectfully considered in our own courts, particularly 07i those 7iovel and abstruse points of law for which it is diffi.cult to find direct authority in English reports. In the present speculative times, anything relating to yoi7it-Stock Companies is of public i7tiportance, and the points 071 which tlie constitution and operation of tliese bodies are affected by tlie doctri7ie of Ultra Vires ai'e just those ivhicli are 77iost 7/iaterial to the interests of the shareholde7-s and of tlie C07m7tu7iity at large. Some of the 77iuch disputed questions i7i regard to corporatio/is, on which legal opinion is still divided, are particularly well treated. Thus with reference to the authority clai7ned by the Courts to resi7-ain co7po7-atio7is or individuals fro77i applyi7tg to Parliament for fresh powers in breach of their express agreei/ients or 171 dc7-ogatio7i of p7-ivate rights, M7: Brice most elabo7-ately a7id ably reviews tlie C07iflicti7ig decisions on this apparent i7ttcrfe/'e/ice luith tlie rights of the subject, which threatened at one time to bring the Legislature and the Courts into a collision si7nilar to that which followed on the well-known case of Asliby v. White A7iotlier very difficult poi7it 071 which Mr. Brice' s book affords full and valuable i7ifor7nation is as to the liability of Co7npa7iies on contracts entered into before tluir for7natio7i by the pro7>ioters, a7id subsequently ratified or adopted by tlie Co77ipa7iy, and as to the claims of promoters tliei/iselves for services re7idered to tlie inchoate Co7npany The chapter on the liabilities of corporations ex delicto for fraud and otiier torts C07K}/iitted by their age7its within tlie region of their authority see7ns to us re77ia7-kably well do7ie, reviewi7ig as it does all the latest and S077iewhat co7it7-adictory decisions on the poi7it O71 the wliole, we C07isider Mr. Brice' s exhaustive work a valuable additio7ito tlie lite7-ature of the professio7i. — Saturday Review. " The doctrine which forms the subject of Mr. Seward Erice's elaborate and exhaustive work is a remarkable instance of rapid growth in modern Jurisprudence. His book, indeed, now almost con- stitutes a Digest of the Law of Great Eritan and her Colonies and of the United States on the Law of Corporations — a subject vast enough at home, but even more so beyond the Atlantic, where Cor- porations are so numerous and so powerful. Mr. Seward Brice relates that he has embodied a refer- ence in the present edition to about 1600 new cases, and expresses the hope that he has at least referred to ' the chief cases.' We should think there can be f&v/, even of the Foreign Judgments and Dicta, which have not found their way into his pages. The question what is and what is not Ultra Vires is one of very great importance in commercial countries like Great Britain and the United States. Mr. Seward Brice h.is done a great service to the cause of Comparative Jurisprudence by his new recension of what was from the first a unique text- book on the Law of Corporations. He has gone far towards effecting a Digest of that Law in its relation to the Doctrine of Ultra Vires, and the second edition of his most careful and comprehen- sive work may be commended with equal confidence to the English, the American, and the Colonial Practitioner, as well as to the Scientific Jurist." — LcLW Magazine and Review. " It is the law of Corporations that Mr. Brice treats of (and treats of more fully, and at the same time more scientifically, than any work with which we are acquainted) not the law of principal and agent ; and Mr. Brice does not do his book justice by giving it so vague a title." — Laic Journal. "A guideof very great value. Much information on a difficult and unattractive subject has been collected and arranged in a manner which will be of great assistance to the seeker after the law on a point involving the powers of a company." — Law Journal. (Review of First Edition.) "On this doctrine, first introduced in the Common Law Courts in East Anglian Railway Co. v. Eastern Counties Railway Co. Brick on Ultra Vires may be read with advantage." — Judgment of Lord Justice Bkamwell in the Case of Everslied v. L. S' N. W. Ry. Co. (L. R., 3 Q. B. Div. 141.) STEVENS & HATNES, BELL TABD, TEUPLE BAB. 17 Just published, Third Edition, in royal 8vo., 1879, price 32^., cloth, THE LAW AND PRACTICE UNDER THE COMPANIES ACTS 1862, 1867, 1870, and 1877 J AND THE LIFE ASSURANCE COMPANIES ACTS. 1870 to 1872. Containing the Statutes, with the Rules, Orders, and Forms regulating Proceedings in the Chancery Division of the High Court of Justice, and full Notes of the Decisions, &c., &c. By H. Burton Buckley, M.A., of Lincoln's Inn, Barrister- at-Law, and Fellow of Christ's College, Cambridge. *^* This work forms a complete Treatise on the Law relating to Joint Stock Companies. " The mere arrangement of the leading cases under the successive sections of the acts, and the short explanation of their eflfect, are of great use in saving much valuable time, which would be otherwise spent in searching the different digests ; but the careful manner in whieh Mr. Buckley has annotated the acts, and placed the cases referred to under distinct headings, renders his work particularly useful to all who are required to advise in the complications in which the shareholders and creditors of companies frequently find themselves involved The Index, always an important part of a law book, is full and well arranged." — Scottish Journal o/ Jurisprudence. In two volumes, royal 8vo., 1875, price 70^., cloth, THE LA^V RELATING TO SHIPMASTERS AND SEAMEN. THEIR APPOINTMENT, DUTIES, POWERS, RIGHTS, LIABILITIES AND REMEDIES. • By JOSEPH KAY, Esq., M.A., Q.C., OF TRIN. COLL. CAMBRIDGE, AND OF THE NORTHERN CIRCUIT ; SOLICITOR-GKNBRAL OF THE COUNTY PALATINE OF DURHAM; ONE OF THE JUDGES OF THE COURT OF RECORD FOR THE HUNDRED OF SALFORD; AND AUTHOR OF " THE SOCIAL CONDITION AND EDUCATION OF THE PEOPLE IN ENGLAND AND EUROPE." REVIEWS OF THE WORK. From the NAUTICAL MAGAZINE, July, 1875. "It is rarely that we find a book fulfilling the requirements of both classes ; full and precise enough for the lawyer, and at the same time intelli- gible to the non-legal understanding. Yet the two volumes by Mr. Kay on the law relating to ship- masters and seamen will, we venture to say, be of equal service to the captain, tlie lawyer, and the Consul, in their respective capacities, and even of interest to the public generally, written as it is in a clear and interesting style, and treating of a subject of such vast importance as the rights and liabilities and relative duties of all, passengers included, who venture upon the ocean ; more than that, we think that any able-seaman might read that chapter on the crew with the certainty of acquiring a clearer notion of his own position on board ship. STEVENS & HAYNES, BELL YARD, TEMPLE BAR. THE LAW RELATING T0JHIPMA8TER8 AND SEAMEN. REVIEWS OF THE \N OR K-contmned. " We can make no charge of redundancy or omis'^ion against our author ; but if we were called upon to select any one out of the fifteen parts into which the two voknncs are divided as being espe- cially valuable, we should not hesitate to choose that numbered three, and entitled 'The Voyage.' There the master will find a succinct and compen- dious statement of the law respecting his duties, general and particular, with regard to the ship and its freight from the moment when, on taking com- mand, he is bound to look to the seaworthiness of the ship, and to the delivery of her log at the final port of destination. In Part IV. his duties are considered with respect to the cargo, this being a distinct side of his duplicate character, inasmuch as he is agent of the owner of the cargo just as much as the owner of the ship. " Next in order of position come ' Bills of Lading ' and ' Stoppage in Transitu.' We confess that on first perusal we were somewhat surprised to find the subject of the delivery of goods by the master given priority over that of bills of lading ; the logical sequence, however, of these matters was evidently sacrificed, and we think with advantage to the author's desire for unity in his above-mentioned chapters on 'The Voyage.' That this is so is evi- denced by the fact that after his seventh chapter on the latter subject he has left a blank chapter with the heading of the former and a reference afi^e. ' The power of the master to bind the owner by his personal contracts,' 'Hypothecation,' and ' The Crew,' form the remainder of the contents of the first volume, of which we should be glad to have made more mention, but it is obviously impossible to criticize in detail a work in which the bare list of cited cases occupies forty-four pages. "The question of compulsory pilotage is full of difficulties, which are well summed up by Mr. Kay. " In conclusion, we can heartily congratulate Mr. Kay upon his success." From the LIVERPOOL JOURNAL OF COMMERCE. "'The Law relating to Shipmasters and Seamen ' — such is the title of a voluminous and important work which has just been issued by Messrs. Stevens and Haynes, the eminent law publishers, of London. The author is Mr. Joseph Kay, Q.C., and while treating generally of the law relating to shipmasters and seamen, he refers more particularly to their ap- pointment, duties, rights, liabilities, and remedies. It consists of two large volumes, the text occupying nearly twelve hundred pages, and the value of the work being enhanced by copious appendices and index, and by the quotation of a mass of authori- ties. . . . T/ie work tniist be an invalnable one to tJte shipowner, sliipmaster, or consul at a foreign port. The language is clear and simple, while the legal standing of the author is a sufficient guarantee that he writes with the requisite authority, and that the cases quoted by him are decisive as regards the points on which he touches." From the LAW JOURNAL. "The author tells us that for ten years he has been engaged upon it. . . . Two large volumes containing ii8i pages of text, 8i pages of appen- dices, 98 pages of index, and upwards of 1800 cited cases, attest the magnitude of the work designed and accomplished by Mr. Kay. "Mr. Kay says that he has 'endeavoured to compile a guide and reference book for masters, ship agents, and consuls.' He has been so modest as not to add lawyers to the list of his pupils ; but kis ivork will, we think, be welcotned by lawyers who have to do with shipping transactions, almost as cordially as it undottbtedly will be by those who occjcpy titeir busifiess in the great zuaters." In crown l2mo., 1876, price 12s., cloth, LOCUS STANDI OF PETITIONERS AGAINST PRIVATE BILLS IN PARLIAMENT. T S: 1 1^ 3 D EX DI T I O IT. By JAMES MELLOR SMETHURST, Esq., of Trinity College, Cambridge, M.A., and of the Inner Temple, Barristei -at-Law. 2 vols. 4to., 1876-77. 5/. $s., calf. PRACTICAL STATUTES OF NEW ZEALAND. WITH NOTES AND INDEX. Edited by G. B. Barton, of the Middle Temple, Barrister-at-Law. THE NEW ZEALAND JURIST (NEvTsERIES). " JOURNAL AND LAW REPORTS. Published Monthly. Edited by G. B. Barton, Barrister-at-Law, Dunedin, New Zealand. The Reports include all cases of importance argvted and determined in the Court of Appeal of New Zealand, and in the Supreme Court in its various Districts. The New Zealand Jurist is the only Legal Journal pubhshed in New Zealand. Orders for the " Jurist " will be received by STEVENS & HAYNES. BELL YARD, TEMPLE BAR, L(;ND0N. STEVENS & HAYNES, BELL YARD, TEMPLE BAB. 19 In one thick volume, 8vo., 1875, price 2^s., cloth, THE PRINCIPLES OF THE LAW OF RATINa of HEEEDITAMENTS in the OCCUPATION of COMPANIES. By J. H. BALFOUR BROWNE, Of the Middle Temple, Barrister-at-Law ; Registrar to the Railway Commissioners. "The tables and specimen valuations which are printed in an appendix to this volume, will be of great service to ihe parish authorities, and to the legal practitioners who may have to deal with the rating of those properties which are in the occupa- tion of Companies, and we congratulate Mr. Browne on the production of a clear and concise book of the system of Company Rating. There is no doubt that such a work is much needed, and we are sure that all those who are interested in, or have to do with public rating, will hnd it of great service. Much credit is therefore due to Mr. Browne for his able treatise — a work which his experience as Registrar of the Railway Commission peculiarly qualified him to undertake." — La-w Magazine. In 8vo., 1875, price 'js.6J., cloth, THE LAW OF USAGES and CUSTOMS: a practical Hato Ccact, By J. H. BALFOUR BROWNE, 0/ tlte Middle Temple, Barrister-at-La-w ; Registrar to the Railway Comiiiissioiters. " We look upon this treatise as a valuable addition to works written on the Science of Law." — Canada Law Journal. " As a tract upon a very troublesome department of Law it is admirable — the principles laid down are sound, the illustrations are well chosen, and the decisions and dicta arc harmonised so far as possible, and distinguished when necessary." — Irish Law 1 ijiies. "As a book of reference we know of none so comprehensive dealing with this particular branch of Common Law In this way the book is invaluable to the practitioner." — Laiv Magazine. Ill one volume, 8vo., 1875, price iSj-., cloth, THE PRACTICE BEFORE THE RAILWAY COMMISSIONERS Um)EE THE EEGULATION OP RAILWAYS ACTS, 1873 and 1874 ; With the Amended General Orders of tlie Commissioners, Schedule of Forms, and Talile of Fees : together with the Law of Undue Preference, the Law of the jurisdiction of the Railway Commissioners, Notes of their Decisions and Orders, Precedents of Forms of Applications, Answers and Replies ; and Appendices of Statutes and Cases. By J. H. BALFOUR BROW^NE, Of tJie Middle Temple, Barrister-at-Law , and Registrar to the Railway Commissioners. Mr. Browne's book is handy and convenient in form, and well arranged for the purposes of refer- ence ; its treatment of the subject is fully and carefully worked out : it is, so far as we have been able to test it, accurate and trustworthy. It is the work of a nian of capable legal attainments, and by official position intimate with his subject ; and we therefore think that it cannot fail to meet a real want and to p'-ove of service to the legal profession and the public. — Law M agazine. In 8vo., 1876, price 7^'. dd., cloth, ON THE COMPULSORY PURCHASE of the UNDERTAKINGS OF COMPANIES BY CORPOEATIONS, And the practice in Relation to the Passage of Bills for Compulsory Purchase through Parliament. By J. H. Bai.FOUR Browne, of the IVIiddle 'I'emple, Barrister-at-Law ; Author of "The Law of Rating," " The Law of Usages and Customs," &c., &c. both by the promoters and opfjonents, and as this was the first time in which the principle of com- pulsory purchase was defniitely recognised, there can be no doubt that it will long be regarded as a leading case. As a matter of course, many inci- dental points of interest arose during the progress of the case. 'I'hus, besides the main question of compulsory purchase, and the question as to whether there was or was not any precedent for the Bill, the questions of water compensations, of appeals from one Committee to another, and other kindred sub- jects were discussed. 'Jliese arc all treated at length by the Author in the body of the work, which is thu.s a complete legal compendium on the large subject with which it so ably deals." " This is a work of considerable importance to all Municipal Corporations, and it is hardly too much to say that every member of these bodies should have a copy bv him for constant reference. Probably at no very distant date the property of all the existing gas and water companies will pass under nnmicipal control, and therelore it is exceedingly desirable that the principles and conditions imder which such transfers ought to be made should be clearly under- stood. This task is made easy by the present volume. The stimulus for the publication of such a work was given by the action of the Parliamentary Committee which last Session passed the preamble of the ' Stockton and Middlesborough Corporations Water Bill, 1876.' The volume accordingly con- tains a full report of the case as it was presented d 2 20 STEVENS & HAYNES, BELL TARD, TEMPLE BAB. Now ready, in 8vo., 1878, price 6s., cloth. THE LAW EELATING TO CHARITIES, Especially with Reference to the Validity and Construction of CHARITABLE BEQUESTS and CONVEYANCES. BY FEKDINAND M. WHITEFOED, of Lincoln's Inn, Barrister-at-Law. "The Law relating to Charities by F. M. Whiteford, contains a brief but clear exposition of the law relating to a class of bequests in which the intentions of donors are often frustrated by un- acquaintance with the Statutory provisions on the subject. Decisions in reported Cases occupy a large portion of the text, together with the ex- planations pertinent to them. The general tenor of Mr. Whiteford's work is that of a digest of Cases rather than a treatise, a feature, however, which will not diminish its usefulness for purposes of reference." — Law Magazine and Review. In 8vo., 1872, price Is. 6d., cloth, ' AN EPITOME AND ANALYSIS OF SAVIGNY'S TREATISE ON OBLIGATIONS IN ROMAN LAW. By ARCHIBALD BROWN, M.A. Edin. and Oxon. and B.C.L. Oxon,, of the Middle Temple, Barrister-at-Law. " Mr. Archibald Brown deserves the thanks of all interested in the science of law, whether as a study or a practice, for his edition of Herr von Savigny's great work on ' Obligations.' Mr. Brown has undertaken a double task — the translation of his author, and the analysis of his author's matter. That he has succeeded in reducing the bulk of the original will be seen at a glance ; the French translation consisting of two volumes, with some five hundred pages apiece, as compared with Mr. Brown's thin volume of a hundred and fifty pages. At the same time the pith of Von Savigny's matter seems to be very successfully pre- served, nothing which might be useful to the English reader being apparently omitted. " The new edition of Savigny will, we hope, be extensively read and referred to by English lawyers. If it is not, it will not be the fault of the translator and epitomiser. Far less will it be the fault of Savigny himself, whose clear definitions and accu- rate tests are of great use to the legal practitioner." — Law Journal. THE ELEMENTS OF ROMAN LAW. In 216 pages 8vo., 1875, price lar., cloth, A CONCISE DIGEST OF THE INSTITUTES GAIUS and" JUSTINIAN, With copious Rejerences arrai2ged itt Parallel Columns, also Chro7iological and Analytical Tables, Lists of Laws, dr'c. dj^c. Primarily designed for the Use of Students preparing for Examination at Oxford, Cambridge, and the Inns of Court. By SEYMOUR F. HARRIS, B.C.L.. M.A., OF WORCESTER COLLEGE, OXKORD, AND THE INNER TEMPLE, BARKISTER-AT-LAW ; AUTHOR OF " UNIVERSITIES AND LEGAL EDUCATION." ' 'Mr. Harrises digest ought to have very great success among law students both in the Inns of Court and the Universities. His book gives evidence of praiseworthy accuracy and laborious cottdensation." — Law Journal. " This book contains a summary in English of the elements of Roman Law as contained in the tuorks of Gains and Justiniati, and is so arranged that tht reader can at once see what are the opinions of either of these t7vo writers on each point. From the very exact and accurate references to titles and sections given he can at once refer to the original writers. The concise manner /« ivhich Mr. Harris has arranged his digest will render it most useful, tiot only to the students for whom it was originally written, but also to those persons who, though they have not the time to wade through the larger treatises of Paste, Sanders, Ortolan, and others, yet desire to obtain some ktiorvledge oj Roman Law." — Oxford and Cambridge Undergraduates' Journal. " Mr. Harris deserves the credit of having produced an epitome wliich will be of service to those numerous students who have no time or sufficient ability to analyse the Institutes for themselves.'''— \.K^ Times. WORKS FOB LAW STUDENTS. 21 For the Preliminary Examinations before Entering into Articles of Clerkship to Solicitors under the Solicitors Act, 1877. Now ready, in a handsome 4to. volume, with Map of the World, price loj-. , cloth, THE STUDENTS' REMINDER ^ND PUPILS' HELP IN PREPARING FOR A PUBLIC EXAMINATION. By THOMAS MARSH, Private Tutor, Author of an "English Grammar," &c. " In these days of competitive examination and well-nigh universal education, students will find a useful auxiliary in the ' Student's Reminder and Pupil's Help,' by Thomas Marsh, which gives in a concise form some fruitful information, that, just because it is elementary, is apt to be momentarily forgotten." — The Graphic. " We welcome this compendium with great pleasure as being exactly what is wanted in this age of competitive examinations. It is evidently the work of a master hand, and could only be compiled by one thoroughly experienced in the work of teaching. Mr. Marsh has summarised and analysed the subjects required for the pieliminary examinations of law students, as well as for the University and Civil Service examinations. He has paid special attention to mathematics, but the compendium also includes ancient and modern languages, geography, dictation, &c. It was a happy idea to make it quarto size, and the type and printing are clear and legible." — Jrish Law Times. " This remarkable volume might almost be described as containing a little of everything, and any student who masters its contents may fairly regard himself as standing well for such ordinary examinations as he may be called upon to pass. Mr. Marsh has evidently had great experience in preparing pupils for such tests, and he has in this work brought together a mass of leading points on a variety of subjects for their assistance." — Ciij/ Press. SECOND EDITION IN THE PRESS. ENGLISH CONSTITUTIONAL HISTORY. ^^srxjiiittr as a ^ct't-^ooli for Stubcnts aub #tljers. BY T. P. TASWELL-LANGMEAD, B.CL., Of Lincoln's Inn, Barrister-at-Law, late Vinerian Scholar in the University of Oxford, and Tancred Student in Common Law. Extracts from some Reviews of this Work. "We think Mr. Taswell-Langmead may be congratulated upon having compiled an elementai7 work of conspicuous merit." — Pall Mall Gazette. " It bears marks of great industry on the part of the compiler, and is most completely stocked with all the important facts in the Constitutional History of England, which are detailed with much conciseness and accuracy, . . . and is very full and clear." — Spectator. " For students of history we do not know any work which we could more thoroughly recommend." — Law Times. " It is a safe, careful, praiseworthy digest and manual of all constitutional history and law." — Globe. "For conciseness, comprehensiveness, and clearness, we do not know of a better modern book than Mr. Taswell Langmead's ' English Constitutional Plistory.' " — Notes and Queries. "The volume on English Constitutional History, by Mr. Taswell-Langmead, is exactly what such a history should he." —Standard. " As a text-book for students, we regard it as an exceptionally able and complete work." — La7a Journal. "Mr. Taswell-Langmead has endeavoured in the present volume to bring together all the most prominent features in the Constitutional History of England, and explain their origin and development. It i.s possible to gain from a hundred pages of Mr. Lang- mead's work a kiiowled;^e of the growth and progress of the present system, which elsewhere could only be obtained in many volumes." — Irish Law Limes. "Mr. Taswell-Langmead has thoroughly grasped the bearings of his subject. It is, however, in dealing with that chief subject of constitutional history — parliamentary government — ^that the work exhibits its great superiority over its rivals." — Academy. 22 WOEKS JOB. LAW STUDENTS. Fourth Edition, in 8vo., 1878, price 25^., cloth, THE PRINCIPLES OF EQUITY. JiiteaDcti for rlje M^z of »)tiiDcnt0 aitti tlje pcofe00ion. By Edmund H. T. Snell, of the Middle Temple, Barrister-at-Law. FOURTH EDITION. TO AAmiOH IS -A^HDHDEZD AN EPITOME OF THE EQUITY PRACTICE, By Archibald Brown, M.A. Edin. and Oxon., and B.C.L. Oxon., of the Middle Temple, Barrister-at-Law ; Author of " A New Law Dictionary," " An Analysis of Savigny on Obligations," and the "Law of Fixtures." REVIEWS. " The changes introduced by the Judicature Acts have been well and fully explained by the present edition of Mr. Snell's treatise, and everything necessary in the way of revision has been conscientiously accomplished. We perceive the fruitful impress of the ' amending hand ' in every page ; the results of the decisions under the new system have been carefully explained, and engrafted into the original text ; and in a word, SncU's work, as edited by Mr. Brown, has proved the fallacy of Bentham's description of Equity as ' that capricious and inconsistent mistress of our fortunes, whose features no one is able to delineate.' He has added a book, comprising 127 pages, on the present 'Practice in Equity,' as to which he observes that it ' will be probably found by students very serviceable, and by practitioners very handy and convenient, seeing that it embodies the whole procedure (even in its minutest details), and at the same time collects it all together under efficient practical headings, with their sub-divisions, so much so that everything may be found in the 'Practice' without either difficulty of search or diversity of reference.' This, on the whole, accurately describes the general character and quality of that portion of the work ; but at the same time, we must say that it cannot well claim to be much more than a skilful precis of the procedure as formulated and prescribed by the Acts and Rules thet)tselves, with a few exceptions, but without anything like an expanded treatment such as might render that portion of the work equal to the portion dealing with the principles of equity. Suggested, however, by the necessities experienced by its writer in his own practice, it will doubtless prove useful to others in an equal degree ; and it certainly forms a valuable and much-needed supplement to Mr. Snell's work." — Irish Laiu limes. " ' Snell's Equity,' as this work is so familiarly called, is a work which is probably known to students of the law in all countries where the English language is spoken, and, as a matter of fact, no one who attempts the study of Equity, can obtain a really proper insight into the science without a perusal, sooner or later, of this book. In 1868 the ' Principles ot Equity ' appeared for the first time. Ever since that date it has been the standard work on the subject. The Edition before us is the fourth that has appeared, and from the many additions and improvements that are embodied in it, it will, we are convinced, quite equal, if not increase, its hitherto well-deserved popularity. The present edition, unlike former ones, is divided into two Books, ^'he first Book consists of the original ' Principles ' in form and style similar to the edition first published by Mr. Snell, with the exception that some paragraphs have been entirely re-written and additions made to it, so as to bring it more in consonance with the existing state of ihe law. In its general character this part of the work is not much altered from former editions, as the many minor errors and deficiencies have been corrected, while the language used, and the contents of the book generally, have been worked up to the level of the new procedure introduced by the sweeping and important legislation which has been effected during the last five years. The second Book, comprising an ' I^pitome of the Equity Practice,' is an entirely new addition to the original work, and emanates from the pen of Mr. Archibald Brown, B.C.L. of Oxford, and of the Middle Temple, Barrister-at-Law, who has handled his subject in an eminently able and satisfactory manner. This ' Practice in Equity' embodies the whole procedure in its minutest details, and will, doubtless, be found most serviceable to practitioners as well as to students. Leaving out of question the use which this part of the work will be to the practitioner, there can be no doubt that to students the whole book will be as indispensable in the future as it has been in the past ; and, as regards the second part, namely that portion of the work which relates to Equity Practice, we have no doubt that a proper knowledge of it will enable a student to successfully pass any examinations in the subject, whether it be at the Universities, at the Inns of Court, or in the Hall of the Incorporated Law Society." — Oxford and Cambridge Undergraduate's Joicrnal. " We knoiv of ?io better introdiiction to the Principles of Equity.^'' — Canada Law Journal. " Within the ten years which have elapsed since the appearance of the first edition of this work, its reputation has steadily increased, and it has long since been recognised by students, tutors and practitioners, as the best elementary treatise on the important and difficult branch of the law which forms its subject. In editing the fourth edition, Mr. Brown, while 'working up the language and contents of the book to the level of the new procedure introduced by the Judicature Acts,' noting changes of the law, and correcting minor errors, has wisely abstained from interference with the general character of the work, which equally with its lucidity and trustworthiness has shared in gaining the approval of the profession. But he has added a new feature in an Epitome of the Practice in Equity which forms a valuable comple- ment to the ' Principles,' equally useful to the young practitioner and to the student, by whom Principles and Practice should be concurrently studied. We think Mr. Brown is to be congratulated on having produced a really useful Epitome, which while not attempting to supersede the larger Practices, will be tound a safe guide to the Practitioner in all ordinary proceedings." — Law Magazine and Review. WORKS FOR LAW STUDENTS. 23 In one volume, 8vo., 1874, price iSj-., cloth, PRINCIPLES OF CONVEYANCING. AN ELEMENTARY WORK FOR THE USE OF STUDENTS. By Henry C. Deane, of Lincoln's Inn, Banister-at-Law, sometime Lecturer to the Incorporated Law Society of the United Kingdom. "Mr. Deane is one of the Lecturers of the Incorporated Law Society, and in his elementary work intended for the use of students, he embodies some lectures given at the hall of that society. It would weary our readers to talce them over the ground necessarily covered by Mr. Deane. The first part is devoted to Corporeal Hereditaments, and the second to Conveyancing. The latter is prefaced by a very interesting 'History of Conveyancing,' and for practical purposes the chapter (Ch. 2, Part II.) on Conditions of Sale is decidedly valuable. The most recent legislation is handled by Mr. Deaue in con- ne.xion with the old law, the Judicature Act and the Vendor and Purchaser Act both being considered in this chapter -on Conditions of Sale. We might make some interesting quotations, but the work is one which those engaged in conveyancing should purchase and put on their shelves, and welcome it with the recommendations which we have already recorded." — Law Tunes. " We hope to see this book, like Sneirs Equity, a statuiard class-book in all Law Schools where English law is taught." — Canada Law Journal. "This is, as its author states, a purely elementary work. It may indeed be called the A B C of con- veyancing. In the clearest and simplest language the student will find an outline, firstly, of the various forms of ownership in land, and, secondly, of the ordinary modes of conveyances used in transferring such land from one person to another. The second portion is founded upon lectures that were delivered by the author at the Incorporated Law Society, and, is accordingly very clear and practical. The whole work is very well and thoroughly done. Mr. Deane has, we believe, succeeded in writing the very simplest work ever published on the abstruse subject of conveyancing ; and has by his language and illustrations, explained points of law in a way that cannot be misunderstood. For this reason, and as being the most elementary work combining the elements of real property law with the principles of practical conveyancing, we can heartily recommend it as a first book on the subject of which it treats. As such we should think it would be both worthy and suitable to be named as one of the books that are required to be read as a preparation for the various Law Examinations." — The Law. " We can confidently recommend Mr. Deane's work on the ' Principle? of Conveyancing.' It is not exhaustive, and does not pretend to go fully into the laws of trusts, powers, or remainders, but it fully explains the several different legal and equitable estates in land and the tenure of land, and the modes of alienation used in conveyances inter vivos and by will. It also fully explains the meaning and value of the several parts of the conveyances, the cove- nants, conditions, provisoes, exceptions and reser- vations, habendums, and the proper form of recitals, &C., &c. — a point frequently neglected in other and more pretentious treatises. It contains excellent chapters on purchase deeds, leases, mortgages, settlements, and wills ; and, in addition, Mr. Deane treats of conditions of sale most fully and clearly. It seems essentially the book for young convey- ancers, and will, probably, in many cases supplant Williams. It is, in fact, a modern adaptation of Mr. Watkin's book on conveyancing, and is fully equal to its prototype." — l7ish Laiv Times. "A general review of the scope of Mr. Deane's volume and a perusal of several of its chapters have brought us to the conclusion that, though its contents are purely elementary, and it contains nothing which is not familiar to the practitioner, it may be extremely useful to students, and especially to those gentlemen who are candidates for the various legal examinations. There are so many questions set now on case law that they would do well to peruse this treatise of Mr. Deane's, and use it in conjunction with a book of questions and answers. They will find a considerable amount of equity case law, especially in the second part cl Mr. Deane's book, which comprises in substance some lectures delivered by the author at the Law Institution." — Law Journal. "As Mr. Deane's work is addressed to the rising generation of conveyancers, * students entering upon the difficulties of real property law,' it may be presvmicd that he does not fear the immediate anni- hilation of that noble science in its traditional forms by any legislative changes. The first part of the volume is composed of a series of chapters on cor- poreal hereditaments, and the second part of some lectures on conveyancing recently delivered by the author at the Law Institution. It is enough to say that Mr. Deane writes clearly and to the point." — Saturday Revietu. " Of all the elementary works on the Principles of Conveyancing which It has been our fortune to read, it is our opinion Mr. Deane's work is the clearest and hesU"—Sheffield Post. 24 WORKS FOR LAW STUDENTS. In one volume, 8vo., 1876, price 20j., cloth, PRINCIPLES OF THE COMMON LAW. INTENDED FOR THE USE OF STUDENTS AND THE PROFESSION. By JOHN INDERMAUR, Solicitor, AUTHOR OF "a MANUAL OF THE PRACTICE OF THE SUPREME COURT," " EPITOMES OF LEADING CASES," AND OTHER WORKS. " This Tvork, the author tells us in his Preface, is written mainly with a view to the examinations of the Incorporated Law Society ; i>ut tve think it is likely to attain a wider usefulness. It seems, so far as we can judge from the parts we have examitted, to be a careful and clear outline of the principles of the common law. It is very readable ; and not only students, but many practitioners and the public might benefit by a perusal of its pages." — Solicitors' Journal. " Mr. Indermaur has very clear notions of what a law student should be taught to enable him to pass the examinations of the Incorporated Law Society. In this, his last work, the law is stated carefully and accurately, and the book will probably prove acceptable to students." — Law Times. " Mr. Indermaur's book will doubtless be found a useful assistant in the legal pupil room. The statements of the law are, as far as they go, accurate, and have been skilfully reduced to the level of learners. Mr. Indermaur possesses one great merit of an instructor —he is able to bring out the salient points on wide subjects in a telling manner."— Zaw yournal. " Mr. Indermaur has acquired a deservedly high reputation as a writer of convenient epitomes and compendiums of various branches of the Law for the use of students. Within the limits which the author has assigned to himself, he has certainly given proof of praiseworthy industry, accuracy, and clearness of exposition, which cannot fail to be of the greatest advantage to the law student. The practising solicitor will also find this a very useful compendium. Care has evidently been taken to note the latest decisions on important points of law. A full and well-constructed Index supplies every facihty for ready reference." — Z«w Magazine. " The works of Mr. Indermaur are the necessary outcome of the existing system of legal education, and are certainly admirably adapted to the needs of students. We observe that, in the preface to his Principles of the Common Law, the author announces that he had a collateral object in view — viz., to produce a work useful to the practitioner. To sessional practitionerSj and those whose libraries are limited, we have no doubt that this work will prove a useful acquisition ; but its special merit appears to us to be that it most adequately achieves that which was the author's principal object — namely, to supply a book upon the subject of Common Law which, whilst being elementary and readable on the one hand, yet also goes sufficiently into the subject to prepare students for examination. The author, who possesses a well-established reputation as a law tutor, and as an able and indefatigable writer of books for students, certainly knows precisely just what it is that students require, and that desideratum he has fully supplied. We might suppose that the work itself was the didactic embodiment of the prize answers to a voluminous code of examination questions on the subject of common law ; and presenting, as it does, a lucid, careful, and accurate outline of the elementary principles applicable to contracts, torts, evidence, and damages, such a work cannot fail to prove abundantly useful to the student." — Irish Law Times. WOKKS FOR LAW STUDENTS. 25 In 8vo., 1878, price los., cloth. A MANUAL OF THE PRACTICE OF THE SUPREME COURT OF JUDICATURE, In the Queen's Bench, Common Pleas, Exchequer, and Chancery Divisions. Intended for the use of Students. By John Indermaur, Solicitor. " This is a very useful student's book. It is clearly written, and gives such information as the student requires, without bewildering him with details. The portion relating to the Chancery Division forms an excellent introduction to the elements of the practice, and may be advantageously used, not only by articled clerks, but also by pupils entering the chambers of equity draftsmen." — Solicitors' Journal. " Intended for the use of students, this book is executed with that accurate knowledge and care which distinguish Mr. Indermaur. It treats carefully of the steps to be taken in the several divisions, and in the appendix is given a table of some of the principal times of proceedings. Not only the student but th£ practitioner will find this little volume of use." — Law Times. " Mr. Indermaur's treatise is addressed to the attention of students ; and what student but knows that the name of that author is a guarantee of the utility of any work so presented 1 His ' Manual of Practice,' while avoiding unnecessary details, furnishes a concise but complete elementary view of the procedure in the Chancery and Common Law Divisions of the High Court of Justice under the English Judicature Acts ; and certainly any examination on the subject must be very unreasonable that a student who has mastered Mr. Indermaur's perspicuous reading on the practice could fail to pass." — Iris/i Law Times. Fourth Edition, in 8vo., 1877, price ds., cloth, AH EPITOME OF LEADING COMMON LAW CASES; WITH SOME SHORT NOTES THEREON. Chiefly intended as a Guide to "Smith's Leading Cases." By John Indermaur, Solicitor (Clifford's Inn Prizeman, Michaelmas Term, 1872). " We have received the third edition of the ' Epitome of Leading Common Law Cases,' by Mr. Inder- maur, Solicitor. The first edition of this work was published in February, 1873, the secondin April, 1874, and now we have a third edition dated September, 1875. No better proof of the value of this book can be fur- nished than the fact that in less than three years it has reached a third edition." — Law Journal. Third Edition, in 8vo., 1877, price 6^., cloth, AN EPITOME OF LEADING GONMEUNGIHG AND EQUITY GASES; WITH SOME SHORT NOTES THEREON, FOR THE USE OF STUDENTS. By John Indermaur, Solicitor, Author of " An Epitome of Leading Common Law Cases." "We have received the second edition of Mr. Indermaur's very useful Epitome of Leading Convey- ancing and Equity Cases. The work is very well done." — Laiv Times. " The Epitome well deserves the continued patronage of the class — Students — for whom it is especially intended. Mr. Indermaur will soon be known as the ' Students' Friend.'" — Canada Law Journal. Second Edition, in Svo., 1876, price ^., cloth, SELF-PREPARATION FOR THE FINAL EXAMINATION. CONTAINING A COMPLETE COURSE OF STUDY, WITH STATUTES, CASES, AND QUESTIONS; And intended for the use of those Articled Clerks who read by themselves. By John Indermaur, Solicitor. " In this edition Mr. Indermaur extends his counsels to the whole period from the intermediate examination to the final. His advice is practical and sensible : and if the course of study he recommends is intelligently followed, the articled clerk will have laid in a store of legal knowledge more than sufficient to carry him through the final examination." — Solicitors' Journal. " This book contains recommendations as to how a complete course of study for the above examination should be carried out, with reference to the particular books to be read seriatim. We need only remark that it is essential for a student to be set on the right tack in his reading, and that any one of ordinary ability, who follows the course set out by Mr. Indermaur, ought to pass with great credit." — Law Journal. In 8vo., 1875, jirice 6^., cloth, THE STUDENT'S GUIDE TO THE JUDICATURE ACTS, AND THE RULES THEREUNDER : Being a book of Questions and Answers intended for the use of Law Students. By John Indermaur, Solicitor. "As the result of the well-advised method adopted by Mr. Indermaur, we have a Guide which will unquestionably be found most useful, not only to Students and Teachers for the purpose of examination, but to anyone desirous of acquiring a first acquaintanceship with the new system." — Irish Law Times. 26 WORKS FOR LAW STUDENTS. In one volume, 8vo., 1874, price 21s., cloth, A NEW LAW DICTIONARY, AND IPnstitute of tfte bjijolc ilatJD ; EMBRACING FRENCH AND LATIN TERMS, AND REFERENCES TO THE AUTHORITIES, CASES, AND STATUTES. By ARCHIBALD BROWN, M.A. Edin. and Oxon., and B.C.L. Oxon., of the Middle Temple, Barrister-at-Law; Author of the "Law of Fixtures," " Analysis of Savigny's Obligations in Roman Law," &c. " Afr. Brown has succeeded in the first essential, that of brevity. He has compressed into a wonderfully small compass a great deal of matter. Our im- pression is that the work has been carefully executed.'''' — SOLICITORS' JOURNAL. " This work, laborious and difficult as it was, has been admirably carried out, and the work is really what it professes to be, a complete compendium. An index to a dictionary is a novelty, but from the excep- tional nature of the contents an index was likely to be most useful, and accordingly Mr. Brown has prefixed to the book a copious index by which a student can at once turn to the main body of the work and obtain the information he requires. Authorities and cases are abundantly cited, and Mr. Brown can claim with justice to call his book an institute of the whole law." — Standard. " In a modest preface Mr. Brown intro- duces us to a rather ambitious work. He has endeavoured to compress into less than four hundred pages the whole law of Eng- land, and has evidently bestowed much pains on the execution of the task. He does not, however, aim at anything higher than rendering a service to students prepar- ing for the Bar or for the lower branch of the profession, and there can be no doubt that he has produced a book of reference which will be useful to the class he has had in view. Mr. Brown has perhaps done about as much as any one, not a rare genius, could do, and his Dictionary will be serviceable to those who are in want of hints and references, and are content with a general idea of a law or legal principle. It is a handy book to have at one's elbow." — Satin-day Review. " This book has 710W been for so7ne time published, and we have had many opportiDiities of referring to it. We find it an admirable Law Dictiona?y, and something more, iiiasmuch as. it contains elaborate historical and antiquarian analyses of our legal system under the several headings. The student and the literary man will find the book very useful in reading and writing. Indeed the people who are not lawyers, but who nevertheless feel a desire or are under a necessity to use legal terms, or who meet them in their course of study, cannot do better than obtain a copy of this work and use it judiciously ; they will thereby be enabled to avoid the ludicroiis errors into which novelists in partic7ilar, and public speakers too, are often led by the inappropriate -use of terms whose meatiings they do not perfectly comprehend.^'' — Irish Law Times. In 8vo., 1875, price I2J-., cloth, THE LAW OF FIXTURES. Third Edition. Including the Law under the AGRICULTURAL HOLDINGS ACT, 1875, IncorJ>orating the principal A merican Decisions, and generally br.7i ;ing the lazu doicn to the present time. By ARCHIBALD BROWN, M.A. Edin. and Oxon, and B.C.L. Oxon, OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW. "The decisions given since the second edition of this work was published in the important cases of Ex parte Daglish, in re Wilde, and Ex parte Barclay, in re Joyce, and several other further decisions of the Courts on the Law of Fixtures, have rendered a third edition desirable. The author has taken the opportunity to recast the general form of his treatise. . , . We have already adverted to the recent cases of Ex parte Dagtish, in re Wilde, and Ex Parte Barclay, in re Joyce. The author treats of them at some length ; and the conclusicu at which he arrives is very important, and claims the attention of legal draftsmen and solicitors. We have touched on the principal fes tures of this new edition, and we have not sjiace for further remarks on the book itself: but we m;iy observe that the particular circumstances of the cases cited arc in all instances sufficiently detailed to make the principle of law clear ; and though very many of tlic principles given are in the very words of the judges, at the same time the author has not spared to deduce his own oDservations, and the treati.'e is commenu- able as well for originality as for laboriousness. " — La-u' Toiirnal. WORKS FOR LAW STUDENTS. 27 In 8vo., 1877, price 20s., cloth, PRINCIPLES OF THE CRIMINAL LAW. INTENDED AS A LUCID EXPOSITION OF THE SUBJECT FOR THE USE OF STUDENTS AND THE PROFESSION, By SEYMOUR F. HARRIS, B.C.L., M.A., Of Worcester College, Oxford, and the Inner Temple, Barrister-at-Law ; Author of " A Concise Digest of the Institutes of Gaius and Justinian." REVIEWS. " There is no lack of Works on Crhninal Laiu, bnt there was room for stich a useful handbook of Principles as Mr. Seymour Harris has supplied. Accustomed, by his pretnous labours, to the task of analysing the law, Mr. Harris has brought to bear upon his present work qualifications ivell adapted to secure the successful accomplishment of the object 7vhick he had set before him. That object is not an ambitious one, for it does not preteiul to soar above utility to the young practitioner attd the student. For both these classes, andjor the yet wider class who may require a book of reference on the subject, Mr. Harris has produced a ctear and convenient Epitome of the Law. A noticeable feature of Mr. Harris'' s work, which is likely to prove of assistance both to the practitioner and the student, consists of a Table of Offences, with their legal character, their punishment, and the statute under ivhich it is ittflicted, together with a reference to the pages where a Statement of the Laiu will be found." —'Lkw Magazine and Review. "This work purports to contain 'a concise exposition of the nature of crime, the various offences punishable by the English law, the law of criminal procedure, and the law of summary convictions,' with tables of offences, punishments, and statutes. The work is divided into four books. Book I. treats of crime, its divisions and e-^sentials ; of persons capable of committing crimes; and of principals and accessories. Book II. deals with offences of a public nature; offences against private persons; and offences against the property of individuals. Each crime is discussed in its turn, with as much brevity as could well be used consistently with a proper explanation of the legal characteristics of the several offences. Book III. explains criminal procedure, including the jurisdiction of Courts, and the various steps in the apprehension and trial of criminals from arrest to punishment. This part of the work is extremely well done, the description of the trial being excellent, and thoroughly calculated to impress the mind of the uninitiated. Book IV. contains a short sketch of 'summary convictions before magistrates out of quarter sessions.' The table of offences at the end of the volume is most useful, and there is a very full index. Altogether we must congratulate Mr. Harris on his adventure.' — La'M Journat. " Mr. Harris has undertaken a work, in our opinion, so much needed thai he might diminish its bulk in the next edition by obliterating the apologetic preface. The appearance of his volume is as well timed as its execution is satisfactory. The author has shown an ability of omission zvhich is a good test of skill, and from the overtvhelming mass of the criminal law he has discreetly selected just so much only as a learner needs to know, and has presented it in terms zuhich render it capable of being easily taken into the mind. The first half of the volume is devoted to indictable offences, which are defined and explained in succinct terms ; the second half treats of the prevention of ofiences, the courts of criminal jurisdiction, arrest, preliminary proceedings before magistrates, and modes of prosecution and trial ; and a brief epitome of the hnvs of evidence, proceedings after trial, and summary convictions, with a table of offences, complete the book. The part on procedure will be found particularly useful. Few young counsel, on their first appearance at sessions, have more than a loose and general notion of the manner in which a trial is conducted, and ofteti commit blunders 7vhich, although trifling in kind, are nevertheless seriously discouraging and annoying to themselves at the outset of their career. From even such a blunder as that of mistaking the order in -which the speeches are made and witnesses examined, they may be saved by the table of instructions given here," — Solicitors' Journal. " Le livre de M. Seymour F. Harris est im manuel de droit criminel destine aux e, et qui est toujours I'objet de la cuiiosite en memc temps que de I'admiration. D'ailleurs, en ce moment oh Ton soiileve tant dc questiuns touchant la repression p<5nale, cette dtude du droit criminel anglais est devenue indispensable. On ne pourra mieux la faire que dans Ic manuel de droit criminel dont nous parlous ici et que nous ne louons que comme il le merite."-^AVz/«^ 6V«. du Droit 1878. 28 WOSES FOB LAW STUDENTS. In one volume, 8vo., (November) 1878, price gs. cloth, LEADING STATUTES SUMMARISED, FOR THE USE OF STUDENTS. By ERNEST C. THOMAS, Bacon Scholar of the Hon. Society of Gray's Inn, late Scholar of Trinity College, Oxford ; Author of " Leading Cases in Constitutional Law Briefly Stated." " Will doubtless prove of much use to students for whom it is intended Any student who, with this brief summary as a guide, carefully studies the enactments themselves in the Revised Edition of the Statutes, cannot fail to gain a very considerable acquaintance with every branch of English law." — Law Magazine. " Mr. Thomas has done a useful piece of work in compiling a little book which is not intended to save students the trouble of looking at the statutes for themselves, but which will be valuable both to guide them through 'the single sentences of enormous length,' of which Sir James Stephen has spoken, and as a convenient book of reference." — Saturday Review. "This is an ingenious work. The author, feel'ng that students, like a good many more experienced persons, are rather bothered with the gigantic bulk of our statute law, has hit upon the idea of picking out more than one hundred s'atutes of general practical importance, and giving a summary of them. He divides these into three classes, and places them under the titles, ' Common Law,' ' Criminal Law,' and • Equity and Conveyancing.' There is an index to the volume, which enables the reader to find at once the Act he wants ; and the summaries seem to be accurate and sufficiently lull. Of course the book belongs to the list of ' cram ' instructors ; but it has merits beyond those of mere help to examination." — Law yournal. In 8vo., 1876, price 6j-., cloth, LEADING CASES IN CONSTITUTIONAL LAW BRIEFLY STATED, WITH INTRODUCTION, EXCUESITSES, AND NOTES. By ERNEST C. THOxMAS, Bacon Scholar of the Hon. Society of Gray's Inn, late Scholar of Trinity College, Oxford. "Mr. E. C. Thomas has put together in a slim octavo a digest of the principal cases illustrating Con- stitutional Law, that is to say, all questions as to the rights or authority of the Crown or persons under it, as regards not merely the constitution and structure given to the governing body, but also the mode in which the_ sovereign power is to be exercised. In an introductory essay Mr. Thomas gives a very clear and intelligent survey of the general functions of the Executive, and the principles by which they are regulated ; and then follows a summary of leading cases." — Saturday Review, "Mr. Thomas gives a sensible introduction and a brief epitome of the familiar leading cases." — Law Times. In 8vo., 1876, price 8j., cloth, AN EPITOME OF HINDU LAW CASES, WITH SHORT NOTES THEREON, And Introductory Chapters on SOURCES OF LAW, MARRIAGE, ADOPTION, PARTITION, AND SUCCESSION. By WILLIAM M. P. COGHLAN, BOMBAY CIVIL SERVICE, JUDGE AND SESSIONS JUDGE OF TANNA. "Apart, altogether, from their professional value, these introductory chapters are interesting to the layman, as presenting a series of curiously exact photographs of every day Hindu life, which are further illustrated by the rulings of the various High Courts. We have only space to direct the readers' attention to the chapters on marriage, and the cases cited, for we made use of this text-book among others in discussing the Hindu marriage laws in our columns last year. Mr. Coghlan is well known as the Judge and Session Judge of Tanna, and as one of the closest students of Hindu life as well as of Hindu law. His volume is already a text-book to the students of Hindu law in England, and should also find a welcome here from practitioners, and even, through the intrinsic interest of the subject and the ability of treatment, from those general readers who may be interested in Indian matters." — Tivics of India. "Mr. Coghlan, Judge and Sessions Judge of Tanna, has prepared an epitome of some Hindoo law cases as a guide to the law reports and to the standard text-books. Apart from its professional value, it presents a curious picture of Hindoo customs and ideas on various subjects, such as marriage, family ties. &c." — Saturday Review. STEVENS & HAYNES, BELL YARD, TEMPLE BAB. 29 In a handy volume^ 1876, price 5X., cloth ^ RAILWAY PASSENGERS & RAILWAY COMPANIES: '^Ijeir 2Dutic0, Eigl)tsf anti Hiabilitics* By LOUIS ARTHUR GOODEVE, of the Middle Temple, Barrister-at-Law. " Mr. Goodeve's little book is a concise epitome of the Acts, Bye-laws, and Cases relating to passengers and their personal luggage. It is clearly written, and the reader is able speedily enough to find any point upon which he desires to inform himself."— Zaw yournal. " Mr. Goodeve has rendered a service to the public in making a digest of the law relating to railway passengers, including the respective duties, rights, and liabilities of the Companies on the one hand and passengers on the other, as laid down by the statutes and the decisions of the Superior Courts. The various points are treated in a clear yet concise manner ; and it is to be hoped that this little work will be widely studied so that people may know what are their rights, and take steps to maintain them." — Saturday Revie-w. " After reading the volume with great interest, we can only say that it is clear, compact, and accurate. Passengers who want reliable information should consult this book." — Sheffield Post. EUKOPEAN ARBITRATION. Part I., price "js.^d., sewed, LORD WESTBURY'S DECISIONS. Reported by Francis S. Reilly, of Lincoln's Inn, Barrister-at-Law. ALBERT ARBITRATION. Parts I., IL, and IIL, price 25^-., sewed, LORD CAIRNS'S DECISIONS. Reported by Francis S. Reilly, of Lincoln's Inn, Barrister-at-Law. In 8vo., 1 87 1, price 21s., cloth, A TREATISE ON THE STATUTES OF ELIZABETH AGAINST FRAUDULENT CONVEYANCES. The Bills of Sale Registration Acts, and the Law of Voluntary Dispositions of Property generally. By H. W. may, B.A. (Ch. Ch. Oxford), and of Lincoln's Inn, Barrister-at-Law. " This treatise has not been published before it was wanted. The statutes of Elizabeth against fraudulent conveyances have now been in force for more than three hundred years. The decisions under them are legion in number, and not at all times consistent with each other. An attempt to reduce the mass of decisions into something like shape, and the exposition of legal principles in- volved in the decisions, under any circumstances, must have been a work of great labour, and we are pleased to observe that in the book before us there has been a combination of unusual labour with considerable professional skill. . . . We can- not conclude our notice of this work without saying that it reflects great credit on the publishers as well as the author. The facilities afforded by Messrs. Stevens and Haynes for the publication of treatises by rising men in our profession are deserving of all praise. We feel assured that they do not lightly lend their aid to works presented for publication, and that in consequence publication by such a firm is to some e.xtent a guarantee of the value of the work published." — Canada Law Journal. " Examining Mr. May's book, we find it con- structed with an intelligence and precision which render it entirely worthy of being accepted as a guide in this confessedly difficult subject. The subject is an involved one, but with clean and clear handling it is here presented as clearly as it could be. . . . On the whole, he has produced a very useful book of an exceptionally scientific character." — Solicitors' Journal. " The subject and the work are both very good. The former is well chosen, new, and interesting •' the latter has the quality which always distin- guishes original research from borrowed labours." — American Law Revinu. " We are happy to welcome his (Mr. May's) work as an addition to the, we regret to say, brief cata- logue of law books conscientiously executed. We can corroborate his own description of his labours, ' that no pains have been spared to make the book as concise and practical as possible, without doing so at the expense of perspicuity, or by the omission of any important points.'" — Law Times. 30 STEVENS & HAYNES, BELL YAED, TEMPLE BAR. In one volume, 8vo., 1875, price 25^., cloth, AN E SS AY ON THE RIGHTS OF THE CROWN AND THE PRIVILEGES OF THE SUBJECT 3ln tf)e ^ca ^ftores of tfte IRealm. By Robert Gream Hall, of Lincoln's Inn, Banister-at-Law. Second Edition. Revised and corrected, together with extensive Annotations, and references to the later Authorities in England, Scotland, Ireland, and the United States. By Richard LoVELAND LovELAND, of the Inner Temple, Barrister-at-Law. " This is an interesting and valuable book. It necessary to supplement it so largely by reference treats of one of those obscure branches of the law which there is no great inducement for a legal writer to take up Mr. Hall, whose first edition was issued in 1830, was a writer of considerable power and method. Mr. Loveland's editing reflects the valuable qualities of the ' Essay ' itself. He has done his work without pretension, but in a solid and efficient manner. The ' Sum- mary of Contents' gives an admirable epitome of the chief points discussed in the ' Essay,' and indeed, in some twenty propositions, supplies a useful outline of the whole law. Recent cases are noted at the foot of each page with great care and accuracy, while an Appendix contains much valu- able matter; including Lord Hale's treatise De Jure Maris, about which there has been so much controversy, and Serjeant Merewether's learned argument on the rights in the river Thames. The book will, we think, take its place as the modern authority on the subject." — Law JournaL "The treatise, as originally published, was one of considerable value, and has ever since been quoted as a standard authority. But as time passed, and cases accumulated, its value diminished, as it was to cases since decided. A tempting opportunity was, therefore, offered to an intelligent editor to supply this defect in the work, and Mr. Loveland has seized it, and proved his capacity in a very marked manner. As very good specimens of anno- tation, showing clear judgment in selection, we may refer to the subject of alluvion at page 109, and the rights of fishery at page 50. At the latter place he begins his notes by stating under what expressions a 'several fishery' has been held to pass, pro- ceeding subsequently to the evidence which is sufficient to support a claim to ownership of a fishery. The important question under what cir- cumstances property can be acquired in the soil between high and low water mark is lucidly dis- cussed at page 77, whilst at page 81 we find a pregnant note on the property of a grantee of wreck in goods stranded within his liberty. "We think we can promise Mr. Loveland the reward for which alone he says he looks — that this edition of Hall's Essay will prove a most decided assistance to those engaged in cases relating to the foreshores of the country." — La^v Times. The entire book is masterly^ — Albany Law Journal. In one volume, 8vo., 1877, price I2j., cloth, A TREATISE ON THE LAW RELATING TO THE POLLUTION AND OBSTRUCTION OF WATER COURSES; Together with a Brief Summary of the Various Sources of Rivers Pollution. By CLEMENT HIGGINS, M.A., F.C.S., OF THE INNER TEMPLE, BARRISTER-AT-LAW. " As a compendium of the law upon a special and rather intricate subject, this treatise cannot but prove of great practical value, and more especially to those who have to advise upon the institution of proceedings under the Rivers Pollu- tion Preventive Act, 1876, or to adjudicate upon those proceedings when brought." — /risA Law Times. " We can recommend Mr. Higgins' Manual as the best guide we possess." — Public Health. " County Court Judges, Sanitary Authorities, and Riparian Owners will find in Mr. Higgins' Treatise a valuable aid in obtaining a clear notion of the Law on the subject. Mr. Higgins has accomplished a work for which he will readily be recognised as having special fitness, on account of his practical acquaintance both with the scientific and the legal aspects of his subject." — Law Maga- zine and Review. " The volume is very carefully arranged through- out, and will prove ol great utility both to miners and to owners of land on the banks of rivers." — TAe Mining Journal. " Mr. Higgins writes tersely and clearly, while his facts are so well arranged that it is a pleasure to refer to his book for information ; and altogether the work is one which will' be found very useful by all interested in the subject to which it relates." —Engineer. " A compact and convenient manual of the law on the subject to which it relates." — Solicitors' Journal. STEVENS & HAYNES, BELL YAKD, TEMPLE BAR. 31 In 8vo., Third Edition, (November) 1877, price 25^-., cloth, MAYNE'S TREATISE LAW OF DAMAGES JOHN D. MAYNE, Of the Inner Temple, Barrister-at-Law : LUMLEY SMITH, Of the Inner Temple, Barrister-at-Law. " During the twenty-two years which have elapsed since the pjiblicatioti of this well-known work, its reputation has been steadily growing, and it has long since becotne the recognised authority on the important subject of which it treats." — Law Magazine and Review. •"This edition of what has become a standard work has the advantage of appearing under the supervision of the original author as well as of Mr. Lumley Smith, the editor of the second edition. The result is most satisfactory. Mr. Lumley Smith's edition was ably and conscientiously pre- pared, and we are glad to find that the reader still ■ enjoys the benefit of his accuracy and learning. At the same time the book has doubtless, been improved by the reappearance of its author as co- editor. The earlier part, indeed, has been to a considerable extent entirely rewritten. " Upon the general principles, according to which damages are to biies. Now ready. Volume I., price 30J.; Volume II., price 24^.; and Volume III., Part I., price 5^. REPORTS OF THE DECISIONS JUDGES FOR THE TRIAL OF ELECTION PETITIONS IN ENGLAND AND IRELAND. PURSUANT TO THE PARLIAMENTARY ELECTIONS ACT, 1SG8. By EDWARD LOUGHLIN O'MALLEY and HENRY HARDCASTLE. 34 STEVENS & HATNES, BELL TASD, TEMPLE BAR. ^ttbnisi anU f^aniujJ* ^ttiti of IJleprints of t])t (Karb 3£ltporter^. SIR BARTHOLOMEW SH OWER'S PARLIAMENTARY CASES. In 8vo., 1876, price 4/. 4^., best calf binding, SHOWER'S CASES IN PARLIAMENT Resohied and Adjudged upon Petitions and Writs of Error. FOURTH EDITION. CONTAZNIirG ADDITION^AZ. CASES ITOT HITHERTO REPORTED. REVISKD AND EDITED BY RICHARD LOVELAND LOVELAND, Of the Inner Temple, Barrister-at-Law ; Editor of " Kelyng's Crown Cases," and " Hall's Essay on the Rights of the Crown in the Seashore." "Messrs. Stevens & Haynes, the successful publishers of the Reprints of Bellewe, Cooke, Cunningham, Brookes' New Cases, Choyce Cases in Chancery, William Kelynge and Kelyng's Crown Cases, determined to issue a new or fourth Edition of Shower's Cases in Parliament. "The volume, although beautifully printed on old-fashioned paper, in old-fashioned type, instead of being in the quarto, is in the more convenient octavo form, and contains several additional cases not to be found in any of the previous editions of the work. " These are all cases of importance, worthy of being ushered into the light of the world by enterprising publishers. " Shower's Cases are models tor reporters, even in our day. The statements of the case, the arguments of counsel, and the opinions of the Judges, are all clearly and ably given. " This new edition with an old face of these valuable reports, under the able editorship of R. L. Loveland, Esq., should, in tlie language of the advertisement, ' be welcomed by the profession, as well as enable the custodians of public libraries to complete or add to their series of English Law Reports.' " — Canada Laiv Journal. BELLEWE'S CASES, T. RICHARD U. In 8vo., 1869, price 3/. y., bound in calf antique, LES ANS DU ROY RICHARD LE SECOND. Collect' ensembl' hors les abridgments de Statham, Fitzherbert, et Brooke. Per Richard Bellewe, de Lincolns Inne. 1585. Reprinted from the Original Edition. " No public library in the world, where English | highly creditable to the spirit and enterprise of law finds a place, should be without a copy of this I private publishers. The work is an important link edition of Bellewe." — Catiada Law Journal. \ in our legal history; there are no year books of the reign of Richard II., and Bellewe supplied the only "We have here a facsimile edition of Bellewe, and it is really the most beautiful and admirable reprint that has appeared at any time. It is a perfect gem of antique printing, and forms a most interesting monument of our early legal history. It belongs to the same class of works as the Year substitute by carefully extracting and collecting all the cases he could find, and he did it in the most convenient form — that of alphabetical arrangement in the order of subjects, so that the work is a digest as well as a book of law reports. It is in fact a collection of cases of the reign of Richard II., Book of Edward I. and other similar works which 1 arranged according to their subjects in alphabetical have been printed in our own time under the | order. It is, therefore, one of the most intelligible auspices of the Master of the Rolls ; but is far and Interesting legal memorials of the Middle superior to any of them, and is in this respect 1 Ages." — Lam Times. CUNNINGHAM'S REPORTS. In 8vo., 187 1, price 3/. 3J., calf antique, Cunningham's (T.) Reports in K. B., 7 to 10 Geo. II. ; to which is prefixed a Proposal lor rendering the Laws of England clear and certain, humbly offered to the Consideration of both Houses of Parliament. Third Edition, with numerous Corrections. By Thomas Townsend Bucknill, Barrister-at-Law. peace and prosperity of every nation than good laws and the due execution of them.' The history of the civil law is then rapidly traced. Next a "The instructive chapter which precedes the cases, entitled ' A proposal for rendering the Laws of England clear and certain,' gives the volume a degree of peculiar interest, independent of the value of many of the reported cases. That chapter begins with words wiilch ought, for the information of every people, to be printed in letters of gold. They are as follows : ' Nothing conduces more to the history is given of English Reporters, beginning with the reporters of the Year Books from i Edw. III. to 12 Hen. VIII. — being near 200 years — and after- wards to the time of the author." — Canada L»w Journal. STEVENS & HAYNES, BELL YAKD, TEMPLE BAR. 35 ^tefarni anlr ^Knnzi' ^exit^ of 2RcprinW of t^t e^xXv Heportcri. CHOYCE CASES IN CHANCERY. In 8vo., 1870, price 2/. 2s., calf antique, THE PRACTICE OF THE HIGH COURT OF CHANCERY. With the Nature of the several Offices belonging to that Court. And the Reports of many Cases wherein Releif hath been there had, and where denyed. "This volume, in paper, type, and binding {like " Eellewe's Cases ") is a facsimile of the antique edition. All who buy the one should buy the other." — Canada Law Journal. In Svc, 1872, price 3/. 3^., calf antique, SIR G. COOKE'S COMMON PLEAS REPORTS In the Reigns of Queen Anne, and Kings George I. and 11. The Third Edition, with Additional Cases and References contained in the Notes taken from L. C. J. Eyre's MSS. by Mr. Justice Nares, edited by Thomas TovvNSEND BucKxNiLL, of the Inner Temple, Barrister-at-Law. an old volume of Reports maybe produced by these modern publishers, whose good taste is only equalled by their enterprise." — Canada Law Journal. " Law books never can die or remain long dead so long as Stevens and Haynes are willing to con- tinue them or revive them when dead. It is cer- tainly surprising to see with what facial accuracy BROOKE'S NEW CASES WITH MARCH'S TRANSLATION. In 8vo., 1873, price 4/. 4J., calf antique, Brooke's (Sir Robert) New Cases in the time of Henry VIII., Edward VI., and Queen Mary, collected out of Brooke's Abridginent, and arranged under years, with a table, together with March's (John) Translation 0/ Brooke's New Cases in the time of Henry VIII., Edward VI., and Queen Mary, collected out of Brooke's Abridgment, and reduced alphabetically under their proper heads and titles, with a table of the principal matters. In one handsome volume. 8vo. 1873. " Both the original and the translation having i Stevens and Haynes have reprinted the two books long been very scarce, and the mispaging and other | in one volume, uniform with the precedmg volumes errors in March's translation making a new and ■ of the series of Early Reports."— C««tarutc iLato, INCLUDING THE SESSION OF 1874, WITH NOTES AND REFERENCES TO THE DECIDED CASES, RELATING TO THE PROCEDURE, JURISDICTION, and DUTIES of MAGISTRATES AND POLICE AUTHORITIES, IN THE METROPOLIS AND IN THE COUNTRY. With an Introduction showing the General Procedure before Magistrates both in Indictable and Summary Matters. By henry C. greenwood, stipendiary Magistrate /or the District of the Staffordshire Potteries; TEMPLE c"." M A R T I N, Of the Southivark Police Court. NOTICES OF THE WORK. ' ' For the form of the work we have nothing but commendation. We may say we have here our ideal law book. It may be said to omit nothing which it ought to contain." — Law Times. ' ' This handsome volume aims at presenting a comprehensive magisterial handbook for the whole of England. The mode of arrangement seems to us excellent, and is well carried out." — Solicitors^ Journal. " As to the care with which the work has been executed, a somewhat minute exami- nation of three or four of the divisions enables us to speak on the whole favourably." — Solicitors'' Journal. " Great pains have evidently been taken in eveiy part of the work to ensure correct- ness • and this quality, together with that of its great comprehensiveness, can scarcely fail to render this guide to procedure before magisterial and police authorities eminently acceptable to the many classes of persons to whom full and accurate information on the subject it deals with is often of the utmost importance." — Morning Post. " The Magisterial and Police Guide, by Mr. Henry Greenwood and Mr. Temple Martin, is a model work in its conciseness, and, so far as we have been able to test it, in completeness and accuracy. It ongkt to be in the hands of all who, as magisti ates or othenvise, have atithority in matters of police" — Daily News. " Both to justices and practitioners desirous of obtaining a book of reference giving the present practice of the courts, this book will be found of great service — nay, almost invaluable." — Liverpool Mercury. " Mr. Greenwood, stipendiary magistrate in the Staffordshire Potteries district, and Mr. Martin, of the Southwark Police Court, have produced a portly magisterial hand- Dook applicable to the whole of England. It contains all the statute law relating to the procedure, jurisdiction, and duties of magistrates and police authorities, with notes and references to recent decisions, and appears to be put together, as might be expected from the professional experience of the authors, in a thorough and business-like manner." — Saturday Review. " This work is eminently practical, and supplies a real want. It plainly and concisely states the law on all points upon which Magistrates are called upon to adjudicate, systematically at ranged, so as to be easy of reference. It ou^ht to find a place on every Justice's table, and we caftnot but think that its usefulness will speedily ensure for it as large a sale as its merits deserve." — Midland Counties Herald. " The exceedingly arduous task of collecting together all the enactments on the subject has been ably and efficiently performed, and the arrangement is so methodical and precise that one is able to lay a finger on a Section of an Act almost in a moment. It is won- derful what a mass of information is comprised in so comparatively small a space. We have much pleasure in recommending the volume not only to our professional but also to our general readers ; nothing can be more useful to the public than an acquaintance with the outlines of magisterial jurisdiction and procedure." — Sheffield Post. STEVENS & HAYNES, BELL YAKD, TEMPLE BAK. 47 Now ready, in One Vol., 8vo., 1878, price 12s., cloth. A COMPENDIUM of ROMAN LA W, FOUNDED ON THE INSTITUTES OF JUSTINIAN: TOGETHER WITH EXAMINATION QUESTIONS SKT IN THK UNIVERSITY AND BAR EXAMINATIONS (WITH SOLUTIONS), And Definitions of Leading Terms in the Words of the Principal Authorities. By GORDON CAMPBELL, Of the Inner Temple, M.A., late Scholar of Exeter College, Oxford; M.A. Trinity College, Cambridge ; Author of " An Analysis of Austin's Jurisprudence, or the Philosophy of Positive Law." " Mr. Campbell, in producing a compendium of the Roman law, has gone to the best English works already existing on the subject, and has made ex- cellent use of the materials found in them. The volume is especially intended for the use of students who have to pass an examination in Roman law, and its arrangement with a view to this end appears very good. The existence of text-books such as this should do much to prevent the evil system of cramming." — Saturday Reviezu. "This compendium is, in the words of the preface, ' intended for those students at the Universities and the Inns of Courts who have to pass an examination in Roman Law.' In its preparation the author has made use of the works to which those students are generally required to give their attention, such as Sander's Justinian, Poste's Gaius, Maine's Ancient Law, Austin's Jurisprudence, and similar publi- cations. Practically this compendium is an analysis in English of Roman law, interspersed with such comments taken from the above authors and editors as serve to render clearer and to rectify, when necessary, the main principles anddffinitions which are founded in that law. Thus in the opening page we have Ulpian's definitionof justice and jurisprudence, followed by Austin's objection to those definitions, namely that they would embrace not only law but positive morality and the test to which both are to be referred. Again, the definition of an action given in Justinian is contrasted with a quotation from the student's Austin ; and the same plan is adopted throughout the Compendium. This plan will undoubtedly be of service to students of the civil law. There is a very useful appendix con- taining questions taken, for the most part, from papers set at examinations at the Universities and in the Bar examinations, and some definitions and descriptions of leading terms." — Law Times. MINING LAWS OF THE UNITED STATES. In 8vo., 1877, price "js. 6i/., cloth, Titles to Mines in the United States, WITH THE Statutes and References to the Decisions of the Courts relating thereto. By W. a. HARRIS, B.A., Oxon., Of Lincoln's Inn, Barrister-at-Law, and of the American Bar. "We have merely sketched the contents of this interesting volume, and though the author apolo- gises in the preface fur its incompleteness, we are bound to admit that we cannot suggest any point on which information on this subject could be desired that it has been withheld. Mr. Harrismay be credited with having done his best to simplify the American mining laws, and in so doing has earned the thanks of all persons interested in the subject." — V'/w Mining World. "It is carefully and thoroughly written through- out, and the information given, whilst it is brief and free from technicalities, will prove ample for the professional man who may be called upon to transact legal business connected with American mines, and will be found useful and interesting to the general reader.'' — The Mining Journal. "The author is an English barrister, who is also a member of the American Bar, and he has had much experience in American and Anglo-American Mining Law. " He has now collated such of the mining laws of the United States as are likely to be of import- ance to Kiiglish mining adventurers who invest in American mines. " I'he information is very comprehensive, and seems to embrace all things pertinent to the subject. The case of the 'Emma' Mine has drawn much attention to the American mining law, and Mr. Harris' work will be found an excellent exponent." — London Iron Trade Exchange. This is a most valuable work— indeed, we might say indispensable— for legal gentlemen and investors in American land and mineral property, and the .-luthor is well qualified to give the informa- tion and advice needed." — The Colliery Guardian. 48 STEVENS & HATNES, BELL YARD, TEMPLE BAE. INDEX to the NAMES of AUTHORS and EDITORS of WORKS enumerated in this Catalogue. Argles (N.), page 32. Banning (H. T.), 42. Barton (G. B.), 18. Bellewe (R.), 34- Braithwaite (T. W.), 41- Brice (Seward), 8, 16. Brooke (Sir R.), 35- Brown (Archibald), 20, 22, 26. Browne (J. H. Balfour), 19. Buchanan, (J.), 38. Buckley (H. B.), 17. BucKNiLL (T. T.), 34, 35- BusHBY (H. J.), 33- Campbell (Gordon), 47. Campbell (Robert), 40. Clarke (Edward), 44. CoGHLAN (W. M.), 28. Cooke (Sir G.), 35- Cooke (Hugh), id. CopiNGER (W. A,), 40. 42, 45- Corner (R. J.), 10. Cunningham (H. S.), 38. Cunningham (John), 7. Cunningham (T.), 34. DANIEL (E. M.), 42. Deane (H. C), 23. De Wal (J.), 38- Edwards (W. D.), 39. Evans (G.), 32- FiNLASON (W. F.), 32- Flaxman (A. J.), 43. FOOTE (J. Alderson), 36. Forsyth (W.), 12. GiBBS (F. W.), 10. Godefroi (H.), 14- Goodeve (L. a.), 29. Greenwood (H. C), 46. Griffin (E. F.), 38. Griffith (J. R.), 36. Griffith (W. Downes), 6. Grotius (Hugo), 38 Hall (R G ), 30 Hanson (A.), 10. Hardcastle (H.), 9. 33- Harris (Seymour F.), 20, 27. Harris (W. A.), 47- Harwood (R. G.), 10. Hazlitt (W.), 9. Higgins (C), page 30. Houston (J.), 32. Indermaur (John), 24, 25. Jones (E.), 14. Joyce (W.), n. Kay (Joseph), 17. ■Kelyng (Sir J.), 35- Kelynge (W.), 3S, Lloyd (Eyre), 13, 15. Locke (J.), 32- Lorenz (C.A.), 38- LovelanDj(R. L.), 6, 10, 30, 34, 35. MAAspoRP (A. *. S^; 38.- March (John), 35. Marsh (Thomas), 21. Martin (Temple C), 46. Mattinson (M. W.), 7- May (H. W.), 29. Mayne (John D.), 31. 38. Menzies (W.), 38. MiCHELL (E. B.), 44. Moncreiff (H. J.), 42- Mori arty, 14. O'Malley (E. L.), 33- Pemberton (L. L.), 32, 41. Reilly (F. S.), 29. Ringwood (R.), IS- Robertson (A.), 41. Robinson (W. G.), 32- Roche (H. P.), 9- Savigny (F. C. Von), 20. Short (F. H.), 8, 10, Shortt (John), 14. Shower (Sir B.), 34- Simpson (A. H.), 43. Smethurst (J. M.), 18. Smith (Eustace), 39. Smith (Lumley), 31. Snell (E. H. T.), 22, Tarrant, (H. J.), 14. Taswell-Langmead, 21. Thomas (Ernest C), 28. Tyssen (A. D.), 39- Van der Keesel (D. G.), 38. Walker (W. G,), 36, 43. Whiteford (F. M.), 20. V I LONDON: PRINTED BY WILLIAM CLOWES AND SONS, STAMFORD STREET AND CHARING CROSS. [A Catalogue of New Law Works may be obtained gratis upon application to S. d //.] STEVENS AND HAYNES' LAW PUBLICATIONS. Ill 8vo, price 20s. cloth, A TREATISE ON THE RULES WHICH GOVERN THE CONSTRUCTION AND EFFECT OF STATUTORY LAW. With au Appendix of Certain Words and Expressions used in Statutes which have been judicially or statutably construed. By Henry Hardcastle, of the Inner Temple, Barrytte'r-at- Law. In One Volume, 8ro, 1878, jnice 12.5. cloth, A . A COMPENDIUM OF ROMAN LAW; Founded ONt^E Ix- STiTUTES OF JusTiNiAN. Together with Examination Questions Set in the University and Bar Examinations (with Solutions), and Definitions of Leading Terms in the Words of the Principal Authorities. By Gordon Campbell, of the Inner Temple, M.A., late Scholar of Exeter College, Oxford ; M.A. Trinity College, Cambridge ; Author of " Au Analysis of Austin's Jurisprudence." In %vo, 1878, Fourth Edition, price Qs. cloth, THE MARRIED WOMEN'S PROPERTY ACTS: Their Relations to the Doctrine of Separate Use. With Appendix of Statutes and Forms. By the late J. R. Griffith, of Lincoln's Inn, Barrister-at- Law. Fourth Edition hy W. Gregory Walker, of Lincoln's Inn, Barrister- at- Law, Author of "A Manual of the Law of Partition." In One Volume, S-yo, price 18s. cloth, PRINCIPLES OF CONVEYANCING. An Elementary Work for the use of Students. By Henry C. Deane, of Lincoln's Inn, Barrister-at- Law, sometime Lecturer to the Incorporated Law Society of the United Kingdom. In %vo. Second Edition, price 18s. cloth, A TREATISE UPON THE LAW OF EXTRADITION, With the Conventions upon the subject existing between England and Foreign Nations, and the Cases decided thereon. By Edward Clarke, of Lincoln's Inn, Barrister-at- Law, and late Tancred Student. In One thick Volume, 8vo, price 42s. strongly hound in cloth, A MAGISTERIAL AND POLICE GUIDE : Being the statute Law, including the Session of 1874, with Notes and References to the most recently decided Cases, relating to the Procedure, Jurisdiction, and Duties of Magistrates and • Police Authorities in the Metropolis and in the Country. With an Introduction, showing the General Procedure before Magistrates both in Indictable and Summary Matters ; and a Copious Index to the Whole Work. By Henry C. Greenwood, Stipendiary Magistrate for the District of the Staffordshire Potteries, and Temple C. Martin, of the Southwark Police Court. " We have here our ideal law book. It may be said to omit nothing which it ought to contain."— Law Times. In One Volume, 8vo, price 25s. cloth, A PRACTICAL TREATISE ON THE LAW RELATING TO THE Rating of Railway, Gas, Dock, Harbour, Tramway, Bridge, Pier, and other Corporations, to the Relief of the Poor. By J. H. Balfour Browne, of the Middle Temple, Barrister-at-Law, Author of "The Law of Usages and Customs," "The Law of Carriers," &c. In 8vo, price 12s. cloth, THE LAW OF FIXTURES. Third Edition, including the Law under the Agricultural Holdings Act, 1875, incorporating the principal American Decisions, and generally bringing the law down to the present time. By Archibald Brown, M.A. Edin. and Oxon., and B.C.L. Oxon., of the Middle Temple, Barrister- at-Law. In 8vo, price 10s. cloth, THE ELEMENTS OF ROMAN LAW SUMMARISED. Primarily designed for the use of Students preparing for Examination at Oxford, Cam- bridge, and the Inns of Court. By Seymour F. Harrls, B.C.L., M. A., of Worcester College, Oxford, and the Inner Temple, Barrister-at-Law. [§ mmM^fWWmmA' UC SOUTHtRN REGIONAI LIBRARY I'^CIUTY [A Catalogue of Ne^ Law Works may be obtained -^-t- TTJ' AA 000 744 277 5 {^STEVENS AND HAYNES' LAW ^ ^^^xv^^xx^i.^^. In one vohime, Svo, 1878, price 9s. cloth, LEADING STATUTES SUMMARISED FOR THE USE OF STUDEXTS. By Ernest C. Thomas, Bacon Scholar of the Hon. Society of Gray's Inn, late Scholar of Trinity College, Oxford; Author of "Leading Cases in Constitutional Law Briefly Stated." In Svo, price 25s. cloth, HALL'S ESSAY ON THE RIGHTS OF THE CROWN, AND THE Privileges of the Subject in the Sea Shores of the Realm. Second Edition, revised and corrected, with extensive Annotations, and References to the Later Authorities in England, Ireland, Scotland, and the United States. By Richard Loveland Loveland, of the Inner Temiile, Barrister-at-Law. In One Volume, Svo, price lis. cloth, TITLE DEEDS : Their Custody and Production, and of other Docu- mentary Evidence at Law, in Equity, and Matters of Conveyancing, including Covenants for the Production of Deeds and Attested Copies. With an Appendix of Precedents, the Vendor and Purchaser Act, 1874, &c., &c., &c. By Walter Arthur Copinoer, of the Middle Temple, Barrister-at-Law, Author of "The Law of Copyright" and "Index to Precedents in Conveyancing." In One Volume, Svo, 2}rice 21s. cloth, A NEW LAW DICTIONARY, AND INSTITUTE OF THE WHOLE LAW ; embracing French and Latin Terms, and References to the Authorities, Cases, and Statutes. By Archibald A. Brown, M.A. Edin. and Oxon., and B.C.L. Oxon., of the Middle Temple, Barrister-at-Law, Author of "The Law of Fixtures," " Analysis of Savigny's Obligations in Roman Law," &c. Li Svo, price 2s. 6d. cloth, TABLES OF STAMP DUTIES FROM 1815 TO THE PRESENT TIME (1878), showing at a glance the (td valorem Duties payable during that Period on Conveyances, Mortgages, and Settlements, together with the Regulations of the Stamp Act, 1870, specially aHecting the same, and an Abstract of the General Provisions of the Act. By Walter Arthur Copinger, of the Middle Teipple, Esq., Banister-at-Law, Author of "The Law of Copyright in Works of Literature and Art," " Index to Precedents in Conveyancing," "Title Deedd," "Capital Punishment," &c. In Svo, price 7s. 6d, cloth, THE LAW OF USAGES AND CUSTOMS: a Practical Law Tract. By J. H. Balfour Browne, of the Middle Temple, Barrister-at-Law, Regis- trar to the Railway Commissioners, Author of "The Law of Carriers," "The Medical Jurisprudence of Insanity," &c. In Svo, price 6s. cloth, THE PARTITION ACTS, 1868 & 1876. a Manual of the Law of Partition and of Sale in lieu thereof, with the Cases to the Present Time, and an Appendix of Forms of Decrees. By W. Gregory Walker, of Lincoln's Inn, Barrister-at-Law. In One Volume, Svo, price 20s. cloth, PRINCIPLES OF THE COMMON LAW. intended for the Use of Students and the Profession. By John Indkrmaur, Solicitor, Author of " Epitomes of Leading Cases," and other Works. " Mr. Indermaur has very clear notions of what a law atvident should bo taught to enable bim to pass tlie examinations of the Incorporated Law Society. In this, his last work, the law is stated carefully and accurately, and the book will probably prove acceptable to students."— Zaw Timit, In Svo, price 6s. cloth, LEADING CASES IN CONSTITUTIONAL LAW briefly STATED. With Introduction, Ex(nritsusEs, and Notes. By Eiinemt C. Thomas, Bacon Scholar of the Hon, Society of Gray's Inn, late Scholar of Trinity College, Oxftird. [ See Catalogue at end of this Volume.]