UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY • LEADING CASES MADE EAST. A SELECTION OF LEADING CASES IN THE COMMON LAW. mm notes. BY W. SHIRLEY SHIRLEY, M.A. MA BAPR1STKR-AT-LAVV, OF THE INNER TEMPLE, AND NORTH-EASTERN CIRCUIT. " Ridentem direre verum " Quid vetat ? ut pueris olim dant crustula blandi " Doctores, elementa vdint ut discere prima." Hoe. Sat. I. 1. 24. " This book is writ in such a dialect " As may the minds of listless men affect ; " It seems a novelty, and yet contains "Nothing but sound and honest [legal] strains." Buntan, Apol. PUgr. Progr. LONDON : STEVENS AND SONS, 119, CHANCERY LANE; I'ato fublisjrm mh loakscIUrs. 1880. \ 334S69 t // TO MY FRIENDS, (and, till recently, my colleagues,) THE COMMITTEE OF THE UNITED LAW STUDENTS SOCIETY, (W. C. Owen, Esq., Reginald B. Acland, Esq., H. E. Barren, Esq., B. T. Bartrum, Esq., D'A. B. Collyer, Esq., \V. Dowson, Esq., C. Kains-Jackson, Esq., F. B. Moyle, Esq., E. H. Quicke, Esq., and R. G. Templer, Esq.) &jns Wtoxlx IS affectionately, and WITH EVERY WISH FOR THE CONTINUED PROSPERITY OF THEIR USEFUL SOCIETY, DEDICATED. PREFACE. The work now submitted to law students differs considerably from other collections of leading cases. In the first place, the number of cases is much larger. "Fifty or sixty leading cases," says the late Mr. Samuel Warren, " thoroughly understood and distinctly recollected, will be found of incalculable value in practice ; serving as so many sure land- marks placed upon the trackless wilds of law. And why should not the number be doubled ? or even trebled ? What pains can be too great to secure such a result ?" My object has been to bring together and to elucidate the 150 cases of most general importance in the Common Law. And, however far short of that object I may have fallen, I think it will be admitted that any student whose diligence enables him to master their names and principles will have laid for himself a good foundation of legal learning. The present work differs also in style. I have adopted it as likely to arrest the attention, aid the memory, and make the study of the law less dry and repulsive. "That I have written in a semi-humorous vein," says an- eminent authority, " shall need no apology, if thereby sound teaching wins a hearing from the million. There is no particular virtue in being seriously unreadable." Moreover, now and then, in the stating of a case certain deviations from strict accuracy may be discovered. Such deviations (except, of course, where I may have been unfortunate enough to fall into errors) have been made on the "reading made easy " principle. For instance, I have treated nearly every vi PREFACE. case as if at nisi prius ; deeming it undesirable to confuse the student, and withdraw his attention from the true point and effect of the decision by appeals, rules for new trials, &c. And the pleasing, if somewhat rare, spectacle is accordingly presented of a successful litigant getting the speedy justice he is entitled to. It will be observed, too, that, tho' the volume in which a case may be found is always given, the page is not. My explanation of this unusual proceeding is that I regard it of extreme importance that a practitioner should have at command the exact volume in which a leading case is to be found. To remember the exact page also, would be knowledge too excellent and unattainable ; a Macaulay or a Fuller might achieve it, but not an ordinary person. But by constantly seeing the reference, and taking a kind of mental photograph of it, a student of average memory ought in a short time to find that he knows exactly where an important case is reported. It is almost unnecessary to add that the work is put forward simply as a Student's Manual — always remembering that a person does not cease to be a student merely because he is called to the Bar, or admitted a Solicitor. One of my objects (tho', of course, not the chief one) has been to act as a guide to that masterly and exhaustive work, Smith's Leading Cases. I have adopted nearly all the cases which appear as leading cases in that collection, and have sometimes even followed the lines of the notes. I gratefully acknowledge help and valuable suggestions from other members of the profession, and particularly from my learned friends, Mr. C. M. Atkinson, of the Inner Temple and North-Eastern Circuit, and? Mr. Wilfred Allen, of the Inner Temple ; and trust my Leading Cases will prove useful to those for whom they are intended. w. s. s. 2, Dr. Johnson's Buildings, March, 1880. LIST OF LEADING CASES. Acraman v. Morrice, (as to when property passes on sale of goods) Adams v. Lindsell, (as to contracts made through the post) . Aldous v. Cornwell, (alteration of written instruments) Armory v. Delamirie, (importance of possession as against wrong-doer) Arnold v. Poole, (corporations must generally contract under seal) Ashby v. White, (action always lies for infringement of a right) . Atchinson v. Baker, (action for breach of promise of marriage) PAGE 143 8 116 222 132 174 148 Baldey v. Parker, (contract for sale of a number of trifling articles amounting in aggregate to value of £10, must be in writing) . 26 Baxter v. Portsmouth, (lunatic may sometimes contract) . . . 131 Beaumont v. Reeve, (mere moral consideration will not support promise) 6 Behn v. Burness, (" now in port of Amsterdam " in charter-party, held a warranty) .......•••■ 126 Bergheim v. Great Eastern Railway Company, (railway company not responsible for luggage in travelling compartment under traveller's own control) " Bickerdike v. Bollman, (notice of dishonour sometimes unnecessary) . 112 Blower v. Great Western Railway Company, (animal's "proper vice" excuses carrier) . *5 Boydell v. Drdmmond, (separate documents containing contract cannot be connected by oral evidence) 30 Brice v. Bannister, (assignment of chose in action) . . . • 160 Burkmire v. Darnell, ("debt, defaidt, or miscarriage") ... 11 Butterfield v. Forrester, (contributory negligence of plaintiff generally disentitles him to complain) 1°" Calye's Case, (as to the liabilities of innkeepers) 43 Carter v. Boehm, (concealment of material fact vitiates policy of insurance) .....•••••• 1"' Chasemore v. Richards, (damnum sine injuria not actionable) . . 175 V 11 1 LIST OF LEADING CASES. Clarke v. Click field Union, (corporations can sometimes contract with out seal) Clayton v. Bi.aket, (effect of leases void under sees. 1 and 2 of Statute of Frauds) Coggs v. Bernard, (bailments) CoLLEN v. Wright, (agent who had exceeded authority in granting lease taken to have warranted that he had authority) . Collins v. Blantern, (illegality) . Cooke v Oxley, (proposal can be retracted any time before acceptance) Cornfoot v. Fowke, (liability of principal for representations of agent) Cowan v. Melbourne, (atheistical contracts illegal) Cox v. Hickman, (participation in profits not conclusive evidence of part nership) . Cox v. Midland Railway Company, (implied authority of agents) Crepps v. Durden, (conditions of bringing actions against magistrates) Crosby v. Wadsworth, (growing grass an " interest in land ") Cumber v. Wane, (lesser sum cannot be pleaded in satisfaction of greater) .......... Cutter v. Powell, (as to when plaintiff can sue on quantum meruit) PAGE 132 77 37 70 90 6 62 103 140 59 232 21 165 158 Dalby v. India and London Life Insurance Company, (Life insurance is not a contract of indemnity merely) ...... 135 Davies v. Mann, (contributory negligence does not disentitle if defendant by reasonable care could have averted consequences of plaintiff's negligence) ........... 187 Denton v. Great Northern Railway Company', (responsibility of railway company for not running advertised train) ... 51 Didsbury v. Thomas, (hearsay evidence) 241 DlGGLE v. Higgs, (wagering contracts void, and stake may be recovered from stakeholder) .......... 106 Donellan v. Read, (performance on either side takes case out of Statute of Frauds) 24 Dovaston v. Payne, (as to dedication and repair of highways) . . 250 Dumpor v. Symms, (waiver of forfeiture, &c.) 78 Eastwood v. Kenyon, (promise to debtor h : mself need not be in writing under Statute of Frauds) 19 Egerton v. Brownlow, (public policy) 89 Elmore v. Stone, (acceptance under 17th section of Statute of Frauds) . 27 Elwes v. Mawe, (as to tenant's right to remove fixtures) ... 74 Fabrigas v. Mostyn, (as to torts committed and contracts made abroad, but sued on here) .......... 252 LIST OF LEADING CASES. PAGE Finch v. Brook, (production, unless dispensed with, essential to valid tender) 166 Fletcher v. Rylands, (liabilities of persons who bring dangerous sub- stances on their lands) ......... 177 George v. Clagett, (set-off by purchasers from factors) ... 67 Goss v. Nugent, (written instrument cannot be varied, but may be waived, by parol) .......... 33 Green v. Price, (contract in restraint of trade may be partly good and partly bad ; also as to penalties and liquidated damages) . . 100 Hadlet v. Baxendale, (measure of damages in contract) . . . 169 Harrison v. Bush, (privileged communications) 225 Hebdon v. West, (life insurance) 134 Higham v. Ridgway, (declarations contrary to interest of deceased per- sons admissible evidence) ...... . 247 Hilbery v. Hatton, (innocent intention no defence in action for wrongful conversion of goods) ......... 224 Hochster v. De la Tour, (suing before day of performance has arrived) 152 Hopkins v. Tanqueray, (warranty must be part of the contract of sale) . 120 Indermaur v. Dames, (person on lawful business may maintain action where trespasser or licensee could not) . . . . . . 192 Irons v. Smallpiece, (delivery or deed necessary to gift) . . . 249 Jolly v. Rees, (private arrangement unknown to tradesman between husband and wife may disable latter from pledging former's credit) 57 Jones v. Just, (warranty of quality sometimes implied) .... 124 Jordan v. Norton, (proposal must be accepted in terms) ... 9 Keech v. Hall, (mortgagee may eject without notice tenant claiming under lease from mortgagor granted after mortgage and behind mortgagee's back). ......... 80 Kemble v. Farren, (sum described by parties as liquidated damages may be only a penalty) 173 Kingston, R. v. Duchess of, (estoppels) 259 Lampleigh v. Brathwait, (past consideration will support a promise if moved by previous request) Langridge v. Levy, (privity sometimes necessary to action for tort) . 230 Le Blanche v. London & North-Western Railway Company, (lateness of trains ; when one party to a contract fails to fulfil his part of it, the other may perform it for himself and send in his bill ; but he must not perform it unreasonably or oppressively) . x LIST OF LEADING CASES. PAGE Lee v. Griffin, (Lord Tenterden's Act as to goods not in esse) . . 29 Lickbarrow v. Mason, (right of stoppage in transitu defeated by nego- tiating bill of lading) 145 Limpus v. London General Omnibus Company, (master generally responsible for torts of servant committed in course of employ- ment and within scope of authority) 202 Lopus v. Chandelor, (warranties and representations) .... 118 Lowe v. Peers, (contracts in restraint of marriage contrary to public policy and void) • • 101 Lumley v. Gye, (damage need not be legal and natural consequence of tort) . . Lynch v. Nurdin, (children can be guilty of contributory negligence) . 190 239 Mackinnon v. Penton, (surveyor of highways may be liable for mis- feasance, but not for non-feasance) 193 Manby v. Scott, (husband liable on wife's contracts on principles of agency) 55 Margetson v. Wright, (a general warranty does not protect the buyer against faults which are obvious) 121 Marriott v. Hampton, (money paid under mistake of law, or by compulsion of legal proceedings, cannot generally be recovered) . 150 Master v. Miller, (material alteration vitiates written instrument) . 115 Mellors v. Shaw, (master employing incompetent workmen, or using defective machinery, may be responsible to servant hurt thereby in course of service) ......... 195 Merryweather v. Nixan, (defendant mulcted in damages in action of tort cannot sue co-defendant for contribution) .... 236 Miller v. Race, (bank-notes pass, like cash, on delivery) . . . 110 Mitchel v. Reynolds, (contracts in total restraint of trade illegal) . 97 Montagu v. Benedict, (husband not liable for goods not necessaries supplied to wife, unless affirmative proof of his having authorised contract) ........... 56 Morley v. Attenborough, (implied warranty of title) . . . . 122 Morritt v. North-Eastern Railway Company, (Carriers Act protects carrier where goods are sent by mistake beyond their destination) 48 Moss v. Gallimore, (mortgagee giving proper notice, entitled to rent due from mortgagor's tenant, admitted before the mortgage) . . 81 Mountstephen v. Lakeman, (guaranty is collateral undertaking to answer for another person who remains primarily liable) . . 12 Nepean v. Doe, (when a man has not been heard of, by those who naturally would have heard of him had he been alive, for seven years, a presumption arises that he is dead) ...... 258 Nichols v. Marsland, (vis major may excuse what would otherwise be an actionable tort) 178 LIST OF LEADING CASES. xi l'AGE Oer v. Maginnis, (notice of dishonour very rarely unnecessary) . . 113 Paslet v. Freeman, (fraud and deceitful representations) . . . 215 Paterson v. Gandasequi, (as to when the seller of goods may sue the iinclisclosed principal, and when he must stand or fall by the agent) 64 Pearce v. Brooks, (fornicatory contracts illegal) ..... 94 Peek v. North Staffordshire Railway Company, (as to what are " just and reasonable " conditions within 17 & 18 Vict. c. 31, s. 7) . . 46 Perryman v. Lister, (the action for malicious prosecution) . . . 235 Peter v. Compton, (the words " not to be performed " in sect. 4 of Statute of Frauds mean "incapable of performance") .... 22 Peters v. Fleming (" necessaries " for infants are those things which it is reasonable that they should have) 127 Poulton v. London and South-Western Railway Company, (though master is generally responsible for torts of servant committed in course of duty, servant cannot be taken to have authority to do what master could not have done himself) ... <• 203 Price v. Torrington, (declarations in course of business of deceased persons admissible evidence) . . . . . . . . 246 Priestley v. Fowler, (master not generally responsible to servant for hurt sustained in service) . 194 Quarman v. Burnett, (person employing contractor not generally responsible for contractor's negligence) . . . . . 199 Readhead v. Midland Railway' Company', (carriers of passengers bound to use the greatest care, but not insurers) . . . . . 182 Reedie v. London and North-Western Railway Company, (the liabiHties of a person employing a contractor) .... 200 Rigge v. Bell, (effect of leases void under sects. 1 and 2 of Statute of Frauds) 76 Roberts v. Orchard, (notice of action) 233 Roe v. Tranmarr, (construction of written agreements) .... 167 Ry'DER v. Wombwell, ("necessaries" for infants) ..... 128 Scarfe v. Morgan, (illegality of contracts made on Sunday ; lien) . . 104 Scott v. Avery', (illegality of contracts ousting jurisdiction of Law Courts) 95 Scott v. Shepherd, (consequential damages) 180 Seaton v. Benedict, (responsibility of husband on wife's contracts) . 56 Semayne v. Gresham, (every Englishman's house not his castle) . . 220 Sharp v. Powell, (proximate cause) 181 Simpson v. Hartopp, (goods privileged from distress) .... 72 Smith v. Marrable, (implied warranty of fitness on letting furnished house) 86 LIST OF LEADING CASES. Smith v. Thackerah, (right to support from neighbouring land) Smout v. Ilberry, (responsibility of husband on wife's contracts) Soltau v. De Held, (nuisances) ...... Spencer v. Clark, (covenants running with the land) . . PAGE 209 57 211 83 Tanner v. Smart, (acknowledgments saving the Statute of Limitations) Tarling v. Baxter, (when property passes on sale of goods) . Taylor v. Caldwell, (impossible contracts) ..... Tempest v. Fitzgerald, (acceptance under 29 Car. II. c. 3, s. 17) . Terry v. Hutchinson, (seduction) Thomas v. Rhymney Railway Company, (responsibility of company issuing through ticket for accident happening off their line) . Thomson v. Davenport, (disclosed and undisclosed principals) Thornborow v. Whitacre, (adequacy of consideration not required) Todd v. Flight, (nuisances from ruinous premises) Turner v. Mason, (wrongful dismissal) ...... Twyne's Case, (gifts defrauding creditors) ..... Vaughan v. Taff Vale Railway Company, (negligent keeping of fire) Vaux v. Newman, (trespass ah initio) ...... Vicars v. Wilcocks, (measure of damages in tort) Wain v. Warlters, (consideration of guaranty) .... Waite v. North-Eastern Railway Company, (contributory negligence identification) . Waugh v. Carver, (how far sharing in the profits is evidence of part nership) Wellock v. Constantine, (when tort amounts to felony, civil action sus pended till criminal investigation concluded) .... Wells v. Abrahams, (tort amounting to felony) .... Wenman v. Ash, (husband and wife two persons for some purposes) Whitcher v. Hall, (alteration of terms between creditor and debtor releases surety) . Whitcombe v. Whiting, (acknowledgments by joint contractors) . Wigglesworth v. Dallison, (evidence of custom to qualify written contract) Wilson v. Brett, (tho' gratuitous bailee is bound to slight diligeno only, he must use special skill if he possesses it) . Wood v. Leadbitter, (mere licence is revocable at pleasure) . Young v. Grote, (estoppel by negligence) 261 LIST OF CASES REFERRED TO. Abbott v. Macfie (contributory negligence) ... ... ... 191 Ackroyd v. Smithson (conversion) 289 A'Court v. Cross (Stat. Limita- tions) 1&2 Agar v. Fairfax (partition) . . . 288 Agra Bank v. Barry (notice) ... ib. Agrell v. L. & N. W. By. Co. (pas- sengers' luggage) .. ... 51 Aldrichv. Cooper (marshalling)... 286 Alexander v. Alexander (powers) ib. Aleyn v. Belchier (powers) ... ib. Allen v. Edmundson (notice of dishonour) ... ... ... 114 Allsop v, Allsop (remoteness of damage)... ... ... ... 240 Alton v. Midi. By. Co. (privity) . . . 231 Amicable Assurance Society v. Bollard (life insurance) ... 137 Amor v. Fearon (wrongful dis- missal) ... ... ... ■• 154 Ancaster v. Mayer (payment of debts) 286 Anderson v. Fitzgerald (life in- surance) ... ... ... 136 Angus v. Dalton (support of houses) 210, 211 Antrobus, B. H. (hearsay) ... 243 Appleby v. Myers (impossible con- tracts) 110 Argoll v. Cheney (alterations) ... 117 Armstrong v. Lane. & Y. Ry. Co. (contributory negligence) ... 190 Arnold v. Cheque Bank (estoppels) 264 Ashburuer v, Macguire (specific legacies)... ... ... ... 284 Asher v. Whitlock (possession) . . . 223 Ashley v. Ashley (life insurance) 136 v. Harrison (remoteness of damage) 240 PAGE Atkinson v. Denby (turpis causa) 237 Attack v. Bramwell (trespass ab initio) ... ... ... ... 219 Att.-Gen n Biphoscated Guano Co. (dedication of highway) ... ... 251 v. Sands (escheat) ... 287 ■ v.Tomlme (damnum sine injuria) ... ... ... ... 176 Austin v. Dowling (malicious pro- secution) ... ... ... 236 Avery v. Bowden (renunciation of contract) ... ... ... 153 Aylsfordc. Morris (expectant heirs) 290 B. Babcock v. Lawson (stolen goods) 112 Bagueley v. Hawley (implied war- ranties) 123 Bailey v. Jamieson (highways) ... 252 Bainbridge v. Firmstone (con- sideration) ... 2 — v. Pickering (necessa- ries for infants) ... ... 130 Baker v. Dening (initials) ... 15 Ball, Ex parte (torts and felonies) 229 Bank of X. S. Wales v. Owston (respondeat superior) ... ... 206 Baring v. Corrie (set-off) ... ... 69 Barker v. Hodgson (impossible contracts) ... ... ... 109 Barrow v. Coles (stoppage in transitu) ... ... 147 Barwick v. Eng. Jt. Stock Bank (agency) ... ... ... 63 Basset v. Nosworthy (notice) . . . 288 Bates v. Hewitt (marine in- surance)... ... ... ... 138 Batty v. Marriott (wagering con- tracts) 106 XIV LIST OF CASUS REFERRED TO. Baxendale v. Bennett (estoppels, &c.).. 112, 172, 263, 264 v. L., 0. & D. Ry. Co. (damages) ... ... ... 172 Bayley v. M. S. & L. Ry. Co. (re- spondeat superior) ... ... 206 Bayliffe v. Butterworth (custom) 37 Beal v. S. Devon Ry. Co. (reason- able conditions) ... ... 47 Beauchamp v. Winn (mistakes)... 290 Beaumont v. Reeve (considera- tion) 20 Bedford v. McKowl (damages for seduction) ... ... ... 215 Bedfordshire, R. v. (hearsay) ... 244 Beeston v. Beeston (wagering con- tracts) 107 t'.Collyer (general hirinss) 24 Belfast Banking Co. v. Doherty (infancy) ... ... ... 130 Bell v. Gardiner (set-off) 69 Bentley v. Griffin (wife's con- tracts) ... ... ... ... 58 Berolles v. Ramsay (necessaries for infants) 129 Berringer v. G. E. Ry. Co. (privity) 231 Berthon v. Loughman (marine in- surance)... ... ... ... 138 Bessela v. Stern (promise to marry) ... ... ... ... 150 Bilbie v. Lumley (mistake of law) 152 Bird v. Boulter (memorandum in writing)... ... ... ... 16 Bird v. Brown (stoppage in transitu) ... ... ... 146 Bird v. Holbrook (man-traps) ... 193 Birch v. Liverj)ool (29 Car II. c. 3, s. 4) 24 Blackham v. Doren (notice of dis- honour) ... ... ... ... 114 Blake v. Alb. Life Ass. Soc. (agency) ... .. 63 v. G. W. Ry. Co. (carriers of passengers) ... ... 198 v. Midi. Ry. Co. (damages) 239 Blakemore v. Brist., &c, Ry. Co. (bailments) ... ... ... 41 Blandy r. Widmore (performance) 286 Bliss, R. v. (hearsay) ... ... 243 Bloxsome v. Williams (Sabbath- breaking) ... ... ... 105 Boast v. Firth (impossible con- tracts) 149 Bolch v. Smith (licensees) ... 193 Bolton v. Madden (public policy) 89 Bonomi v. Backhouse (support from land) ... ... ... 211 Boraston's Case (construction) ... 284 Borries v. Imp. Ott. Bank (set-off) (J9 Borrodaile v. Hunter (life surance) ... Botterill v. Whytehead (privileged communication) Bower v. Beate (negligence of con tractors) Bowes v. Shand (construction of contracts) Bowles's Case (waste) Box v . Jubb (vis major) . . . Brace v. Marlborough (tacking) Bracegirdle v. Heald (29 Car. II c. 3, s. 4) Bradburn v. Foley (custom) v. G. W. Ry. Co, (damages) Bradfield, Reg. v. (repair of high ways) Bradlaugh v. de Rin (lex loci con- tractus) ... Bradley v. Peixoto (repugnant conditions) Bradshaw v. L. & Y. Ry. Co (damages) Brady v. Todd (agency) ... Braybroke v. Inskip (general de vises) Brice v. Stokes (trustees) Bridges v. North Lond. Ry. Co, (invitation to alight) ... Bringloe v. Morrice (comnwdatum) Brisbane v. Dacres (mistake of law) British Columbia, &c, Co. v. Net- tleship (damages) British Linen Co. v. Drummond (lex loci fori) Brittain v. Rossiter (Stat, of Frauds) ... Brodie v. Barrie (election) Brook v. Hook (ratification) Brooker v. Scott (necessaries for infants) ... Brown v. Brine (public policy) .. ■ v. Glen (sheriffs) ... v. Hodgson (indemnifica tion) v. Muller (damages) v. Overbury (conditions precedent) v. Robins (support) . v. Storey (mortgages) Bryant v. Richardson (neces saries for infants) Bubb v. Yelverton (wagering contracts) Buck v. Robson (chose in action) Budd v. Fairmaine (warranty) Bunn v. Guy (restraint of trade) Burgess v. Gray (acts of con- tractors) 202 LIST OF CASES REFERRED TO. \\ Burke v. S. E. Ry. Co. (carriers of passengers) ... ... ... 199 Butler v. Mountgarrett (hearsay) 243 Button v. Thompson (wrongful dismissal) ... ... ... 155 Byrne v. Boadle (negligence) ... 185 Bywater v. Richardson (war- ranty) 119 0. Cadaval v. Collins (mistake of law) 152 Cadell v. Palmer (perpetuities) 99, 285 Campbell v. Rothwell (surety- ship) 18 Cannan v. Brice (immorality) ... 94 Carr v. Jackson (agency) ... 66 Carr v. L. & N. W. Ry. Co. (estoppel) 263 Carstairs v. Taylor (vis major) ... 179 Carter v. Bernard (presumptions) 223 Casborne v. Scarfe (equity of re- demption) 289 Catt v. Tourle (restraint of trade) 99 Chambers v. Bernasconi (hearsay) 248 v. Donaldson' (posses- sion) 223 Chancey's Case (satisfaction) ... 285 Chappell v. Nunn (contracts of lunatics) 132 Chauntlerv. Robinson (adjoining houses) ... ... ... ... 211 Chesterfield v. Janssen (expectant heirs) 290 Clark v. Chambers (proximate cause) 182, 191 v. Molyneux (privileged communications) ... 227 v. Shee (negotiable instru- ments) ... ... ... Ill Clay v. Harrison (stoppage in transitu) ... ... ... 147 v. Yates (9 Geo. IV. c. 14, s. 7) 29 Clayton's Case (appropriation of payments) ... ... ... 134 Clift v. Schwabe (life insurance) 137 Clun's Case (apportionment) ... 288 Coates v. Wilson (necessaries for infants) 129 Cochrane v. Rymill (conversion) 225 Cohen v. S. E. Ry. Co. (common carriers)... ... ... ... 47 Colchester v. Brooke (contributory negligence) ... ... ... 188 Cole v. N. West. Bank (brokers) 70 Colegrave v. Dios Santos (fixtures) 76 Collins v. Blantern (estoppel) . . . 262 Collins r. Locke (arbitration) ...96, 99 Collis v. Selden (privity) 231 Colman v. E. Coun. Ry. Co. (ultra vires) ... ... ... ... 93 Cooke v. Birt (sheriffs) 221 v. Chilcott (covenants) ... 85 v. Wildes (privileged com- munication) ... ... ... 227 Cooper, E.t parte (stoppage in transitu) ... ... 147 v. Cooper (election) ... 286 Corbet's Case (common of shack) 287 Corby v. Hill (negligence) .. 193 Corbyn v. French (mortmain) ... 284 Cory v. Patton (marine insurance) 138 v. Scott (notice of dishonour) 114 v. Thames Iron Works Co. (damages) ... ... ... 171 Couturier v. Hastie (del credere agents) ... ... ... ... 13 Coverdale v. Charlton (highways) 251 Coxhead v. Mullis (infancy) ... 130 Crease v. Barrett (entries) ... 248 Crisp v. Anderson (presumptions) 223 Croft v. Lumley (waiving for- feitures)... ... ... . . 80 Crofts v. Waterhouse (accidents) 184 Crosby v. Leng (torts and felonies) 229 Crosse v. Gardner (warranties) ... 119 Crouch r. Credit Foncier (negoti- able instruments) ... ... Ill Crowhurst v. Amersham Burial Board (sic utere tno) ... ... 179 Croydon Gas Co. v. Dickinson (suretyship) ... ... ... 18 Cuddee v. Rutter (specific per- formance) ... ... ... 283 Cuthbertson v. Irving (estoppel) 86 I). Davenport v. The Queen (waiving forfeitures) ... ... ... 80 Davidson v. Cooper (alterations) 117 Davies v. Powell (privileged goods)... ... ... 78 r. Williams (seduction) ... 215 Dawkins v. Rokeby (privileged communications) ... ... 226 Dawson v. Fitzgerald (arbitration) 96 Dean v. Peel (seduction)... ... 215 Deane v. Keate (hiring) ... ... 42 Degg r. Midi. Ry. Co. (volunteers) 196 De Greuchy v. Wills (husband and wife) 264 Denny v. Thwaites (pettysessions) 233 Dering v. Winchelsea (suretyship) 18, 290 XVI LIST OF CASES REFERRED TO. PAGE Deslandes v. Gregory (undisclosed principals) ... ... ... 67 Dickson v. Beut. Tel. Co. (agency) 71 Dixon v. Clark (tender) ... ... 167 v. Yates (sale) ... ... 144 Dobree v. Napier (possession) ... 223 Dod v. Monger (trespass ab initio) 219 Doe v. Cadwallader (mortgagor's tenants)... ... ... 82 v. Hales (mortgagor's tenants) 82 v. Pulman (hearsay) ... 245 v. Vowles (entries) .. . ... 248 Donald v. Suckling (vadium) ... 40 Doorman v. Jenkins (dcpositum) . . . 39 Dormer v. Knight (construction) 168 Douglas v. Patrick (tender) ... 167 Drew v. Nunn (lunacy) ... ... 132 Dublin, &c, By. Co. v. Slattery (negligence) ... ... ... 184 Duncan v. Topham (contract by letter) 9 Dunlop v. Higgins (contract by letter) 9 Dyer v. Dyer (advancement) . . . 289 E. Eastland v. Burchell (husband and wife) ... 59 Edwards v. Aberayron, &c, Co. (arbitration) ... 96 r . Slater (powers) . . . 287 Eicholz v. Bannister (implied war- ranties) ... ... ... ... 123 Eley v. Positive Ass. Co. (29 Car. II. c. 3, s. 4) 24 Elibank v. Montolieu (married women) ... ... ... ... 283 Elliot v. Merryman (purchasers from trustees ... ... 289 v. N. E. By. Co. (support of land) 210 v. Davenport (legacies lapsing) ... ... ... ... 284 Ellis v. Loftus Iron Co. (sic utere tuo) ... . 179 v. Sheffield Gas, &c, Co. (acts of contractors) ... ... 202 Ellison v. Ellison (donationes) . . . 249 i (trustees) ... 289 Elmore v. Stone (constructive ac- ceptance) ... ... ... 27 Elsee v. Gatward (gratuitous bail- ments) ... ... ... ... 40 Embrey v. Owen (water-courses) 176 Emmerson v. Heelis (sale by auc- tion) 27 Emmerton v. Matthews (implied warranties) ... ... .. 125 PAGE Evans v. Elliott (mortgages) ... 82 v. Boe (wrongful dismissal) 155 v. Walton (seduction) ... 215 Eyre v. Shaftesbury (guardian- ship) 285 Fairclough v. Marshall (mort- gages) ... ... ... ... 82 Falmouth v. Boberts (erasures) ... 117 Farebrother v. Simmons (memo- randum) .. ... ... 16 Farrant v. Barnes (common car- riers) ... ... ... ... 46 Farrar v. Defiinne (retiring part- ners) ... ... ... .. 142 Fell v. Knight (innkeepers) ... 45 Fenn v. Harrison (agency) ... 61 Fennell v. Bidler (Sabbath-break- ing) 105 Finch v. Boning (tender) ... 167 Firth v. Bowling Iron Co. (sic utere tuo) ... ... ... 180 Fish v. Kempton (set-off) ... 69 Fisher v. Bridges (illegality) ... 93 v. Prowse (dedication of highway) ... ... 251 v. Val de Travers Asph. Co. (damages) ... ... ... 172 Fitch v. Sutton (accord and satis- faction) ... ... ... ... 166 Fitzjohn v. Mackinder (malicious prosecution) ... ... ... 236 Fletcher v. Ashburner (conver- sion) 288 Forbes v. Cochrane (religion) ... 104 v. Lee Conservancy Board (unpaid trustees) ... 194 v. Moffatt (merger) ... 289 Ford v. Fothergill (necessaries for infants) ... ... ... ... 130 Foreman v. Canterbury (mis- feasance of surveyors) .. . ... 194 Forth v. Chapman (construction) 285 Foster v. Parker (notice of dis- honour) ... ... ... ... 114 Foulkes v. Metr. By. Co. (negli- gence) ... ... ... ... 199 Fox v. Chester (simony) ... ... 290 v. Mackreth (trustees) ... 289 Francis v. Cockrell (negligence) ... 185 Freeman v. Cooke (estoppel) ... 263 Freemantle v. L. & N. W. By. Co. (sparks) 208 Frost v. Knight (renunciation) ... 153 Fuentes v. Montis (brokers) ... 70 Fuller v. Wilson (fraud) 63 LIST OF CASES REFERRED TO. XV11 G. Gabay v. Lloyd (usage) ... ... 37 Gadd v. Houghton (undisclosed principals) ... ... ... 66 Gallin v. L. & N. W. Ry. Co. (car- riers of passengers) ... ... 185 Gardiner v. Gray (implied war- ranties) ... ... 125 ■ v. Sheldon (devises) ... 285 Garth v. Cotton (waste) 287 George v. Skivington (privity) ... 231 Gerhard v. Bates (fraud) 217 Glenorchy v. Bosville (executory trusts) 289 Godsall v. Boldero (life iusurance) 135 Goff v. G. N. Ry. Co. (respondeat superior) ... .. ... 206 Goodman v. Chase (suretyship)... 13 v. Harvey (gross negli- gence) ... ... Ill Goodwin v. Parton (acknowledg- ments) ... ... ... ... 164 Gordon v. Ellis (set-off) 69 v. Gordon (compromises) 290 Grant v. Fletcher (bought notes) 16 v. Maddox (usage) ... 36 Gray v. Cox (implied warranties) 124 G. N. Ry. Co. v. Shepherd (pas- sengers' luggage ) 5 1 v. Swafneld (agency) 60 G. W. Ry. Co. v. Blake (carriers of passengers) ... ... ... 198 Green v. Cresswell (29 Car. II. c. 3,s. 4) 20 v. Price (liquidated dam- ages) ... ... ... ... 174 Griffiths v. Vere (accumulation) 99,285 Grimoldby v. Wells (acceptance) 29 Grindell v. Godmond (necessaries for wife) ... ... ... 59 Gwinnell v. Earner (ruinous pre- mises) ... ... ... ... 207 H. Halford v. Kymer (life insurance) 136 Hall v. N. E. Ry. Co. (carriers of passengers) ... ... 185 v. Potter (marriage broker- age) 102 v. Wright (promise to marry) 149 1 1 alley, The (conflict of law) ... 254 Hamilton v. Mohun (marriage brokerage) ... ... ... 102 Hamlin v. G. N. Ry. Co. (damages) 54 Hammond v. Dufrene (notice of dishonour) ... ... ... 114 Hampden v. Walsh (wagering con- tracts) • ... 107 Hancock v. Austin (distress) . . . 222 Hancocks v. La Blanche (married women) ... ... ... ... 257 Hands v. Slaney (necessaries for infants) ... ... ... ... 129 Hanson v. Graham (construction) 284 I lulling v. Glyn (trusts) ... 285 Hargreaves v. Diddams (justici ) 233 Harman v. Reeve (9 Geo. IV. c 14, s.7) 27 Harms v. Parsons (restraint of trade) 98 Harris's Case (contract by letter) 9 Harris v. Mobbs (proximate cause) 182 Harrison v. Cage (promise to marry) 150 Hart v. Prater (necessaries for infants) ] '29 v. Swaine (fraud) .. . ... 217 Hartland v. Gen. Exch. Bank (wrongful dismissal) ... ... 155 Hartley v. Case (notice of dis- honour) ... ... 115 V. Rice (restraint of mar- riage) 102 Harvey v. Bridges (forcible entry) 219 v. Pocock (distress) ... 74 Hawtayne v. Bourne (agency) ... 61 Hedges v. Tagg (seduction) ... 215 Hedley v. Bainbridge (partnership) 142 Heffield v. Meadows (continuing guaranties) ... ... ... 18 Hegarty v. Shine (infancy) ... 94 Heilbutt v. Hickson (sale by sample) ... ... ... ... 125 Hickman v. Upsall (presumptions) 259 Higginson v. Simpson (wagering contracts) ... ... ... 108 Hilton v. Eckersley (restraint of trade) 99 Hinde v. Whitehouse (sale) ... 144 Hindley v. Westmeath (marriage) L03 Hinton v. Dibbin (common car- riers) ... ... ... ... 4!» Hiort v, Bott (conversion) ... 225 v. L. & N. W. By. Co. (conversion) ... ... ... 225 Hirschfield v. L., B. & S. C. Ry. Co. (fraud) 289 Hiscocks v. Hiscocks (parol evi- dence) 286 Hitchcock r. Coker (consideration) 2 Hobbs v. L. & S. W. Ry. Co. (damages) ... ... ... :"■ f Hoey v. Eelton (damages) ... 240 Hogarth v. Latham (partnership) 142 Holbrook, Reg. v. (respondeat superior) ... ... ... 205 Hole v. Sittingbourne Ry. Co. (contractors) ... ... ... 202 Holland v. Cole (covenants) ... 80 6 XV111 LIST OF CASES REFERRED TO. Holliday v. Morgan (warranty) ... 122 Hollins v. Fowler (conversion) . . . 225 Holme v. Hammond (partnership) 141 Holmes v. Mather (inevitable accident) ... ... ... 184 Holt v. Ward (infancy) 130 Hooley v. Hatton (legacies) ... 284 Hope v. Hope (lex loci fori) . . . 253 Home v. Rouquette (lex loci con- tractus) ... ... ... ... ib. Horner v. Graves (restraint of trade) 99 Hornsby v. Lee (reduction into possession) ... ... ... 283 Horton v. Sayer (arbitration) ... 96 Hough v. Manzanos (undisclosed principals) ... ... ... 66 Housego v. Cowne (notice of dis- honour) ... ... ... 115 Household Fire Ins. Co. v. Grant (contract by letter) ... ... 9 Hovil v. Pack (ratification) ... 61 Howard v. Harris (mortgages) ... 289 Howe v. Dartmouth (conversion) 285 v. Malkin (hearsay) ... 248 Howell v. Coupland (impossible contracts) ... ... ... 110 Hudston v. Midi. Ry. Co. (pas- sengers' luggage) ... ... 51 Huguenin v. Baseley (undue in- fluence) 290 Hulme v. Tennant (husband and wife) 283 Humble v. Hunter (undisclosed principals) ... ... ... 67 Humfrey v. Dale (usage) ... 36 Hunt v. Wimb. Loc. Board (cor- porations) ' 92, 133 Huntingdon v. Huntingdon (hus- band and wife) .. . ... ... 283 Hurdman v. N. E. Ry. Co. (sic utere tuo) ... ... ... 179 Hurst v. Usborne (conditions pre- cedent) 126 Hutchins v. Chambers (distress) 73 Hutchinson v. Birch (sheriffs) ... 221 v. Bowker (mutual- ity) ... 10, 36 v. Tatham (usage) ... 36 Hydraulic Engineering Co. v. McIIaffie (damages) 172 T. Ilott vt Wilkes (trespassers) ... 193 Ingham v. Primrose (negotiable instruments) ... ... ... 112 Inman v. Stamp (interests in land) 22 Ivens, R. v. (innkeepers)... Iveson v. Moore (nuisances) PAGE 45 213 J. Jakeman v. Cook (considerations) 6 Jeakes v. White (interests in land) 22 Jeudwine v. Slade (warranties) ... 119 John v. Bacon (negligence) ... 198 Johnson v. Credit Lyonnais Co. (brokers) ... ... ... 70 Johnson v. Midi. Ry. Co. (common carriers) ... ... ... 49 Johnston v. Sumner (wife's con- tracts) ... ... ... ... 59 Jolly v. Arbuthnot (mortgages) ... 82 Jones v. Bowden (implied war- ranties) ... ... 125 v. Bright (implied war- ranties) ... ... 124 v. Festiniog Ry. Co. (sparks from engines)... ... 208 v. St. John's Coll. (impos- sible contracts) ... 109 v. Tyler (innkeepers) ... 44 Jor den v. Money (estoppel) ... 263 Jordin v. Crump (trespassers) ... 193 K. Kearney v. L., B. & S. C. Ry. Co. (negligence) ... ... ... 185 Kearon v. Pearson (impossible contracts) ... ... ... 108 Keate v. Temple (suretyship) ... 13 Keech v. Sandford (trustees) ... 289 Keppel v. Bailey (covenants) ... 86 Kiddell v. Burnard (soundness)... 122 Kirk v. Gregory (conversion) ... 225 Kirkham v. Marter ("miscar- riage " ) ... ... ... 13 Knight v. Fox (acts of contractors) 201 Knowlman v. Bluett (29 Car. II. c. 3,s. 4) 24 Laing v. Fidgeon (implied war- ranties) ... ... 125 v. Meader (tender) ... 167 Lake v. Gibson (tenancy in com- mon) 288 Lamb v. Walker (support to land) 211 Landsdowne v. Landsdowne (mis- takes) 290 Lax v. Darlington (alighting) ... 185 Lay thoarp v. Bryant(memorandum) 1 5 LIST OF CASUS REFERRED TO. xix PAGE Lee r. Jones (suretyship) ... 17 Legg v. Goldwire (marriage) ... 283 Leggattv. G. N. Ry. Co. (estop- pel) 262 Leigh r. "Webb (malicious prose- cution) 236 Le Neve v. Le Neve (notice) ... 288 Lennard v. Robinson (undisclosed principals) ... ... ... 67 Leroux v. Brown (Stat. Frauds) 16, 254 Lester v. Foxcroft (part perform- ance) 284 Leventhorpe v. Ashbie (legacies) ib. Lewis v. Brass (mutuality) ... 10 v. Gompertz (notice of dis- honour) ... ... ... ... 115 Lindsay v. Cundy (stolen goods) 112 Lloyd v. Johnson (immorality) ... 94 v. Lloyd (restraint of mar- riage) ... ... ... ... 102 London Ass. Co. v. Mansel (life insurance) ... ... ... 136 Long v. Millar (documentary evi- dence) ... ... ... ... 32 Longmeid v. Holliday (privity) . . . 231 Longridge v. Dorville (considera- tion) ... ... ... ... 2 Lovell v. L., C. & D. Ry. Co. (pas- sengers' luggage) ... 51 v. Newton (married wo- men) ... ... ... ... 257 Lucas v. Mason [respondeat su- perior) ... ... 205 v. Worswick (mistakes) ... 152 Ludlow v, Charlton (corporations) 133 Luker v. Dennis (covenants) ... 86 Lyde v. Barnard (deceit)... ... 216 Lygo r. Newbold (contributory negligence) ... ... ... 1!)1 Lyons v. De Pass (market overt) 112 Lyons v. Elliott (distress) ... 73 Lyster r. Goldwin (mortgages) ... 82 M. Mackreth i>. Symons (vendor's lien) 288 Macrow v. G. W. Ry. Co. (pas- sengers' luggage) ... ... 50 Mahony v. Kekule" (undisclosed principals) ... ... ... 67 Malcomson v. O'Dea (hearsay) ... 244 Mallan v. May (restraint of trade) 101 Malpas v. L. & S. W. Ry. Co. (written contracts) ... ... 35 Mangan v. Atterton (contributory negligence) ... ... ... 191 Mann v. Nunn (interests in land) 22 Marsh v. Lee (tacking) 289 Marshall v. Green (growing crops) 21 Marshall v. York, &c, Rj I (privity) Marvin v. Wallis (acceptance) ... Marzetti v. Williams [vnjuria) ... Massey v. Johnson (interests in land) Matthews v. Baxter (drunken- ness) May v. Burdett (mischievous ani- mals) McCawley v. Furness Ky. Co. (carriers of passengers) McKinneU v. Robinson (illegality) McManus v. Crickett (respondeat superior) McQueen v. G. W. Ry. Co. (com- mon earners) ... Medina r. Stoughton (warranties) Merest v. Ha>-vey (damages) Metr. Ry. Co. v. Jackson (negli- gence) ... Meyerhoff v. Froehlieh (Stat. Limitations) Milan, The (contributory negli- gence) Milligan v. Wedge (acts of con- tractors) Mills v. Ball (stoppage in transitu) Milnes r. Duncan (mistakes) Minshull v. Oakes (covenants) ... Mizen v. Pick (wife's contracts)... Molton v. Camroux (lunacy) Morgan v. Ravey (innkeepers) ... Morley v. Bird (joint tenancy) ... v. Pincombe (distress) ... Mortimer v. Craddock (presump- tions) Morton v. Tibbett (29 Car. II. c. 3,8. 17) _ Mouflet v. Cole (restraint of trade) Moyce v. Newington (stolen got k Is) Mucklow v. Mangles (sale of goods) ... Mulkern v. Lord (arbitration) ... Mullett v. Mason (damages) Murphy v. Smith (master and ser- vant) Murray V. Currie (contractors) ... v. Elibank (married wo- PAOB 231 176 22 131 178 185 237 205 49 119 •J 11 184 163 190 201 147 1 52 S4 59 132 44 288 73 224 29 99 112 1 II 97 170 196 201 283 67 51 men) Myriel v. Hymensold (undisclosed principals) Mytton v. Midi. Ry. Co. (passen- gers' luggage) ... N. Nelson r. Liv. Brewery Co. (ruin- ous premises) ... ... ... 201 LIST OF CASES REFERRED TO. Newton v. Harland (forcible entry) 219 Northcote v. Doughty (infancy)... 130 Noys v. Mordaunt (election) ... 286 Nugent v. Smith (common car- riers) .. ... ... ... 46 Nuttall v. Bracewell (licences) ... 88 (). Ogden v. Hall (undisclosed prin- cipals) ... ... ... ... 66 Ogle v. Vane (damages) .. . ... 172 Oglesby v. Yglesias (undisclosed principals) ... ... ... 66 Oppenheim v. White Lion Co. (innkeepers) ... ... ... 44 Osborn v. Gillett (torts and crimes) ... ... ... ... 229 Ottaway v. Hamilton (necessaries for wife) ... ... ... 59 Outram v. Morewood (estoppel)... 262 Oxford's Case (intervention of equity) ... 290 P. Paice v. Walker (undisclosed prin- cipals) ... ... ... ... 66 Parker v. Staniland (interests in land) 21 Parkinson v. Collier (usage) ... 36 Parry v. Smith (privity) ... ... 231 Pasley v. Freeman (warranties)... 119 Patscheider v. G. W. Ry. Co. (pas- sengers' luggage) ... ... 51 Pa wlett v. Pawlett (portions) ... 284 Payne v. Cave (proposals) ... 7 Peachy v. Somerset (forfeiture)... 290 Peacock v. Young (proximate cause) ... ... ... ... 181 Pearce v. Morrice (construction) 92 v. Brooks (consideration) 6 Pearson, Reg. v. (justices) ... 233 v. Skelton (indemnifica- tion) 237 Peek v. Gurney (fraud) ... ... 217 Pendlebury v. Greenhalgh (sur- veyors) ... ... ... ... 194. Penn v. Baltimore (specific per- formance) ... ... ... 284 Pepper v. Burland (quantum meruit) ... ... ... ... 160 Phelps v. L. & N. W. Ry. Co. (passengers' luggage) ... ... 50 Phene's Trusts, In re (presump- tions) 259 Philips v. Henson (distress) ... 73 Phillips v. Barnet (husband and wife) 256 PAGE Thillipsv. Eyre (torts abroad) ... 254 v. Foxhall (suretyship) ... 17 v. S. W. Py. Co. (damages) 241 Phipson v. Kneller (notice of dis- honour) ... ... ... ... 115 Pickard v. Sears (estoppel) ... 262 Pickering v. Dowson (warran- ties) 121,217 Pigot's Case (alterations) ... 117 Pinnell's Case (accord and satis- faction) ... ... ... ... 166 Planche" v. Colburn (quantum meruit) .. ... ... ... 160 Potter v. Faulkner (common em- ployment) ... ... ... 196 Poussard v. Spiers (impossible contracts) ... ... 110, 149 Power v. Barham (warranties) ... 119 Pownal v. Ferrand (indemnifica- tion) ... ... ... ... 5 Pratt, R. v. (highways) ... ... 251 Preston's Case (finding) ... ... 223 Pretty v. Bickmore (ruinous pre- mises) _ 207 Prudential Association Co. v. Edmunds (presumptions) ... 259 Pusey v. Pusey (specific delivery) 283 Pye. Ex parte (double portions)... 285 Pym v. Campbell (written agree- ments) ... ... ... 33 v. G. N. Ry. Co. (damages) 239 Quincey v. Sharp (Stat. Limita- tions) 162 R. Radley v. L. & N. W. Ry. Co. (contributory negligence) ... 188 Randall v. Newson (implied war- ranties) ... 125,186 v. Raper (damages) ... 170 Randell v. Trimen (fraud) ... 71 Raper v. Birkbeck (alterations) ... 117 Pawlinson v. Clarke (construc- tion) 168 Read v. G. E. Ry. Co. (damages) 239 Reader v. Kingham (29 Car. II. c. 3, s. 4) ,. 20 Reed v. Jackson (estoppel) ... 262 v. Roy. Exch. Co. (life insur- ance) ... .. ... ... 136 Rees v. Berrington (suretyship) 18, 290 Ricardo v. Garcias (foreign courts) 255 Richards v. L., B. & S. C. Ry. Co. (passengers' luggage) 51 ?'. Rose (support) ... 211 LIST OF CASES REFERRED TO. \\\ Richardson v. Langridge (tenancy at will) 288 v. N. E. lly. Co. (com- mon carriers) ... 49 v. Silvester (fraud) ... 217 Rickards v. Murdock (marine in- surance)... ... ... ... 138 Eideal v. G. W. Ry. Co. (accord and satisfaction) ... ... 166 Ridgway v. Hungerford Mark. Co. (wrongful dismissal) ... 155 r. Wharton (documen- tary evidence) ... ... ... 32 Rigby v. Hewitt (contributory negligence) ... ... ... 190 Roberts v. Havelock (quantum meruit) ... ... ... ... 159 Robinson v. Davison (impossible contracts) ... ... 108 V. Jones (privileged com- munications) ... 227 v. Pett (trustees) ... 289 Robson v. N. E. Ry. Co. (alighting) 185 Rodvvell v. Phillips (growing crops) ... ... ... ... 21 Rogers v. Allen (hearsay) ... 245 v. Ingham (mistakes) ... 152 Roper v. Johnson (damages) ... 172 Roscorla v. Thomas (considera- tion) 4,121 Rose v. N. E. Ry. Co. (alighting) 185 Rosevear, &c, Co., Ex parte (stop- page in transitu) ... ... 147 Ross v. Fedden (sic utere tuo) ... 179 Rositer v. Miller (memorandum) 15 Rourke v. Mealy (illegality) ... 92 v. White Moss Coll. Co. (respondeat superior) ... ... 205 Rouse's Case (tenancy at suffer- ance) 288 Routledge v. Grant (proposals) ... 7 Row v. Dawson (chose in action) 290 Rucker v. Cammeyer (brokers' en- tries) ... ... ... 16 v. Hiller (notice of dis- honour) ... ... ... ... 114 Rugby Charity v. Merryweather (dedication of highway) ... 251 Ruinmens v. Hare ^life insurance) 136 Russel v. Russel (equitable mort- gages) 289 Ryall v. Rowles (assignment of debts) 290 Rymer, R. v. (innkeepers) ... 45 S. St. Helens, &c, Co. v. Tipping (nuisances) ... ... ... 213 Sainter v. Ferguson (liquidated damages) Sale v. Lambert (memorandum) Sandilands v. Marsh (partnership) Sandwich v. G. N. Ry. Co. (water- courses) Sandys v. Florence (licensees) ... Santos r. Illidge (foreign law) ... Saunderson v. Jackson (memoran- dum) Piper (ambiguities) 171 15 142 177 193 253 15 34 217 222 217 97 Schneider v. Heath (fraud) Scott v. Buckley (executions) . . . v. Dixon (fraud) v. Liverpool (arbitration)... v. Lond. Docks Co. (negli- gence) ... v. Seymour (foreign law) . . . V. Tyler (restraint of mar- riage) Seaman v. Netherclift (privileged communications) Searle v. Laverick (bailments) . . . Seton v. Slade (specific perfor- mance) ... Seymor's Case (estates of inheri- tance) ... Seymour v. Greenwood (respondeat superior) Shadwell v. Shadwell (considera- tion) Sharp v. Bailey (notice of dis- honour) ... Sheen v. Bumpstead (hearsay) ... Shelley's Case (construction) Shiells v. Blackburne (gratuitous bailees) ... Short v. Kalloway (sureties) v. Lee (hearsay) v. Stone (renunciation) Shower v. Pilch (donatio mortis fill/sd) Shrewsbury Peerage Case (hearsay) 244 Sibree?>. Tripp (accord and satisfac- tion) Siddons v. Short (support) Sievewright v. Archibald (brokers' entries) Siffken v. Wray (stoppage in transitu) Silk v. Prime (equitable assets)... Silvester, R. v. (Sabbath-breaking) Simons v. G. W. Ry. Co. (reason- able conditions) Simpson v. Bloss (illegality) — v. Nicholls (Sabbath- 185 255 285 226 42 284 287 206 114 246 287 40 5 248 153 249 166 210 16 146 286 105 17 93 breaking) Sims v. Marryat (implied warran- ties) Sinclair v. Bowles (q uantum meruit) 105 123 169 XX11 LIST OF CASES REFERRED TO. TAGE Singleton v. E. Coun. Ry. Co. (contributory negligence) ... 191 Skeet v. Lindsay (Stat. Limita- tions) ... ... ... ... 163 Sloman v. Walter (penalties) ... 290 Slubey v. Heyward (stoppage in transitu) ... ... ... 147 Smethurst v. Mitchell (undisclosed principals) ... ... ... 66 Smith v. Baker (implied warran- ties) 125 v. Green (damages) ... 170 ■ v. Kendrick (sic utere tuo) 179 „. L. & N. W. Ry. Co. (sparks) 208 v. W. Derby Loc. Board (notice of action) ... 234 v. Wilson (usage) ... 36 Sneesby v. Lane. & Y. Ry. Co. (proximate cause) ... ... 182 Solarte v. Palmer (notice of dis- honour) ... ... ... 115 Somerset v. Cookson (specific de- livery) 283 South of Irel. Coll. Co. v. Waddle (corporations) ... ... ... 133 Southcote v. Stanley (licensees) 193 Southwell v. Bowditch (undis- closed principals) ... ... 67 Spencer v. Parry (indemnifica- tion) ... ... 5 v. Slater (fraudulent gifts) 157 Spice v. Bacon (innkeepers) ... 44 Stafford v. Coyney (limited dedi- cations) ... ... ... 251 Stafford v. Till (corporations) ... 133 Stanley v. Dowdeswell (mutu- ality) 10 Stapilton v. Stapilton (compro- mises) '290 Stapleton v. Cheales (construction) 284 Steel v. Lester (respondeat su- perior) ... ... ... ... 204 Stephens v. Elwall (conversion) 225 Steward v. Gromett (malicious prosecution) ... ... ... 236 Stone v. Marsh (torts and felo- nies) 229 Storey v. Ashton (respondeat su- perior) ... .. ... ... 204 Strathmore v. Bowes (husband and wife) 283 Streatfield v. Streatfield (elec- tion) 286 Stribiey v. Imp. Mar. Ins. Co. (concealment) ... ... ... 138 Strong v. Harvey (tender) ... 167 Sturges v. Bridgman (nuisances) 214 Sury v. Pigot (extinguishment) . . . 287 PAGE Sutton v. Tatham (usage) ... 37 Sussex Peerage Case (hearsay) ... 248 Swainson v. N. E. Ry. Co. (com- mon employment) ... ... 196 Swan v. North Brit. Austr. Co. (estoppel) 264 Swift v. Jewsbury (agency) ... 63 Swindall, R. v. (contributory neg- ligence) 189 Talbot v. Shrewsbury (satisfac- tion) 285 Talley v. G. W. Ry. Co. (passen- gers' luggage) ... ... ... 50 Taltarum's Case (estates of in- heritance) .. 287 Tarry v. Ashton (ruinous premises) 207 Taylor v. Ashton (fraud) ... 217 v. Bowers (illegality) 93, 237 v. Chambers (market overt) 112 v. Chester (illegality) ... 93 v. Neri (damages) ... 240 Thackray v. Blackett (notice of dishonour) ... ... ... 114 Thomas v. Hayward (covenants) 85 v. Lewis (agency) ... 61 Thorn v. London (implied war- ranties) ... ... ... 125 Thornbrough v. Baker (mortgages) 289 Thorogood v. Bryan (contribu- tory negligence) ... ... 190 Tindall v. Bell (indemnification) 5 Todd v. Kerrich (wrongful dis- missal) ... ... ... ... 155 Toilet v. Toilet (powers) ... 286 Topham v. Portland (powers) ... 286 Townley v. Sherborne (trus- tees) 290 Treloar v. Bigg (covenants) ... 80 Trimbey v. Vignier (lex loci con- tractus) .. ... ... 253 Trueman v. Loder (undisclosed principals) ... ... 67 Tuff v. Warman (contributory negligence) ... ... ... 188 Tullett v. Armstrong (married women) ... ... ... ... 283 Turner v. Ambler (malicious pro- secution) ... ... 236 v. Cameron (fixtures) ... 76 v. Rookes (necessaries for wife) 59 — — v. Thomas (set-off) ... 69 Tweddle v. Atkinson (considera- tion) 3 LIST OF CASES REFERRED TO. xxi 11 "Tyler v. Bennet (interests in land) 22 Tyrrell's Case (uses) 289 Tyrringham's Case (commons) ... 287 V. Uhde v. Walters (usage) ... 36 Usill r. Hale (privileged communi- cations) ... ... ... ... 226 V. Valpy v. Oakeley (damages) Vandenbergh v. Spooner (memo- randum) v. Truax (proxi- mate cause) Vanderdonckt v. Thellusson (foreign law) Varney v. Hickman (wagering contracts) Vanghan v. Menlove (fire) Vaughton v. L. & N. W. Ky. Co. (common earners) Venables v. Smith [respondeat superior) Viner v. Francis (legacies) W. Waddilove v. Barnett (mortga- gors) ... _ ... Wain v. Warlters (consideration) Wainwrigkt v. Bland (life in- surance) Wake v. Conyers (boundaries) . . Walker v. G. W. By. Co. (agency) Waller*. Midi. (Irel.) By. Co. (damages) Wallis v. Littell (written con- tracts) ... Ward v. Byrne (restraint of trade) ... v. Day (forfeiture) v. Hobbs (fraud) ... v. Turner (donatio mortis causd) v. Weeks (remoteness of damage)... Warner v. McKay (set-off) Warrington v. Early (alterations) 172 15 182 255 107 209 49 204 284 82 25 136 288 61 55 33 99 79 217 286 240 69 117 PAOl Watson V. Threlkcld (cohabita- tion) 59 Watts r. Friend (29 Car. II. c. 3, 8.17) 27 Webb '•. Plummer (usage) ... 36 \\ ( lin.ill /•. Adney (moral con- siderations) ... ... ... 6 Weir v. Bell (agency) 63 Wentworth v. Outhwaite (stop- page in. transitu) 147 West Cumb., &c, Co. v. Kenyon (sic vter e two) ... ... ... 180 Whatman v. Pearson (respondeat super im-) ... ... ... 204 Whincup v. Hughes (considera- tions) ... ... ... ... 3 Whitcher v. Hall (contribu- tion) 237 White v. Feast (justices) ... 233 r. France (negligence) ... 193 v. G. W. By. Co. (reason- able conditions) ... 47 v. Spettigue (torts and felonies) ... ... ... 229 Wilcocks v. Wilcocks (perfor- mance) ... ... 286 Wild's Case (devises) 285 Whitehead v. Anderson (stoppage in transitu) ... ... ... 147 Wildes v. Bussell (estoppel) ... 262 Wilkinson v. Hall (mortgages) ... 82 Williams v. Carwardine (adver- tisements) ... 7 v. Wheeler (memoran- dum) Williamson v. Freer (privileged communications) Wilson, Beg. r. (infancy) v. Ducket (distress) v. Finch Hatton (im- plied warranties) ... v. Ford (necessaries for wife) v. Newberry (sic utert tuo) Wing v. Angrave (presumptions) v. Mill (considerations) ... Winterbottom v. Derby (nuis- ances) ... Withnell v. Gartham (hearsay) Wood v. Smith (warranties) v. Ward (water- courses) Woodley v. Metr. By. Co. (com- mon employment) Woods v. Bussell (sale of goods) ... Woodward v . L. & N. W. By. Co. (common carriers)... Woollam v. Hearn (specific per- formance) 16 227 179 73 87 59 179 258 5 213 •JIM 119 176 196 144 49 284 XXIV LIST OF CASES REFERRED TO. Wright v. L. & N. W. Ry. Co. (volunteers) ... v. Midi. Ry. Co. (carriers of passengers) v. Stavert (interests in land) Yates v. Pvm (usage) PAGE 196 198 22 3<) Yorkshire Banking Co. v. Beat- son (partnership) .. ... 142 Young v. Davis (surveyors of highways) ... .. ... 194 Zunz v. S. E. Ry. Co. (common carriers) ... ... ... 199 LEADING CASES MADE EASY. Adequacy of Consideration not required. THORNBOROW v. WHITACRE. [1.] [2 Ld. Raym.] One who knew human nature well has made the not very profound observation that the sight of means to do ill deeds is frequently responsible for ill deeds being done ; or, as he further remarks, that the blame ought really to be laid on opportunity's shoulders. This may be charitably pleaded as an excuse for Thomborow, when, finding him- self in company with a flat, he beguiled him into the following agreement : — " Farmer Whitacre," said he, " let lis strike a bargain. If I pay you a five pound note down now, will you give me 2 rye corns next Monday, 4 on Monday week, 8 on Monday fortnight, and so on, — doubling it every Monday, — for a year." Whitacre jumped at it ; a fiver never was earned so easily. So the thing was settled. But when our yokel friend came to calculate how much rye he should have to deliver, — the village school- master probably did the sum for him, — he found that it came to more rye than was grown in a year in all England. Thomborow, however, — there must have been some- thing of the wag about the man, — brought his action and succeeded ; for the court said that " tho' the contract was a foolish one, it would hold in law." There was a R 2 LEADING CASES MADE EASY. consideration, and as for the other point raised for the defendant, that it was an impossible contract, it was only impossible as to the defendant's ability. As the sequel, however, to this case, the reader will be relieved to hear, that Thornborow was magnanimous enough to spare his prostrate antagonist, and be content with making him pay the costs, and return the five pound note. Every promise (when the contract is not by deed) requires a con- sideration to support it. A promise, when the promisor is to get nothing for it, is (in law, of course, — we need not he too cynical) worthless, and might just as well never have been made. Nuda f actio non parit obligationem. But law courts, as Thornborow v. Whitacre sufficiently shows, are satisfied with the existence of a con- sideration, and do not trouble themselves about its adequacy. No matter how slight may be the benefit to the promisor, or the detri- ment to the promisee (whichever the consideration may happen to be), it is sufficient to support the promise. In one case a man allowed a friend to take some boilers and weigh them. Afterwards he brought an action against him for not keeping his promise to restore them, after weighing them, in as good condition as they were before. For this promise it was held that the mere allowing to weic/h was a suffi- Bainbridge c l pnt consideration. " The consideration," said Patteson, J., "is that v. Firm- the plaintiff at the defendant's request had consented to allow the stone, 8 A. c \ e f en( iant to weigh the boilers. I suppose the defendant thought he see Hitch- had some benefit : at any rate, there is a detriment to the plaintiff cock v. from his parting with the possession for ever so short a time." Coker, 6 A. g Q ^ f oroearanC e to sue in the case of a doubtful claim is a sufficient t -j consideration. And so is labour, tho' unsuccessful. Longridge "" ' v. DorvUle, In the case of bills of exchange and promissory notes it is presumed, 3 B.& Aid. tjn the contrary is shown, that there is a consideration. La Erath* 1 A curious case on tnis k rancn °f tne l aw is Shadwell v. Shadwell, wait, p. 3. where an amiable old gentleman wrote to his nephew,— 30 L. J., " My dear L , C. P. " I am glad to hear of your intended marriage with E. N. ; and, as I promised to assist yon at starting, I am happy to tell you that I will pay you one hundred and fifty pounds yearly during my life, and until your annual income, derived from your profession of a Chancery barrister, shall amount to six hundred guineas, of which your own admission will be the only evidence I shall receive or require. " Your ever affectionate uncle, "C. S." LEADING CASES MADE EASY. :\ In an action against the old man's executors, it was held that this letter amounted to a request to his nephew to marry E. N., and that his promise therefore had a consideration and was binding. But, tho' it is all very well in theory that it does not matter a bit what the consideration is, provided there is one, yet if the inadequacy is very striking indeed the presumption of fraud arises, and a defendant may on that ground dispute his liability. Whitacre might very well have done this. He might have said — " I have been , cheated : I am no scholard, and that chap is : he has swindled me." As it was, he simply demurred to the declaration, and the issue of fraud was not raised. A stranger to the consideration cannot sue upon a contract, altho' it may have been entered into expressly for his benefit, and he may be a near relative of the person from whom the consideration moved. Tweddle v. Sometimes money paid away can be recovered on the ground of ^ tj'"1"o failure of consideration. But the failure must be total, and not merely partial. A man not long ago apprenticed his son to a watchmaker, and paid a heavy premium. In a year's time the watchmaker died, but it was held that not a farthing of the premium could be recovered, because the lad had got a year's teaching out of the deceased, and therefore the failure of consideration was only partial. Whincup The subject of Impossible Contracts is treated of under Taylor v. I" i } l " J !' es, Jj. Jv. O Caldwell, p. 108. q p Past Consideration. LAMPLEIGH v. BRATHWAIT. [2.] [Hob. & S. L. C] Thomas Brathwait slew Patrick Mahume. But kings were kings then ; and the murderer was fortunate enough to have a friend at court. To this friend then he resorted in his need, and begged him, in the name of all that was charitable, to go to the king, and intercede for his life. Touched by the appeal, this friend,— Lampleigh was his name, — consented to see what could be done, and " did by all the means he could and many days' labour do his endeavour to obtain the king's pardon for the said felony, b2 4 LEADING CASES MADE EASY. viz. in riding and journeying at his own charges from London to Royston, when the king was there, and to London back, and so to and from Newmarket to obtain pardon for the defendant for the said felony." After Lampleigh had taken all the journeys, and been put to all this trouble, Brathwait, as some slight recognition of his services, promised to give him £100. But the storm blew over ; Brathwait cheated the hangman ; and now pro- posed to cheat Lampleigh too. In answer to Lampleigh's gentle reminder of the promise to give him £100, Brathwait replied very learnedly that no promise is binding unless it is founded on a sufficient consideration, and that what Lampleigh had done was a mere voluntary courtesy quite insufficient to support a promise. " No," said Lampleigh, with much sounder learning, as the event proved, " it was not a mere voluntary courtesy. You asked me to do it, and that asking saved it from being a mere voluntary courtesy, and made it a sufficient con- sideration to found a subsequent promise on." And Lampleigh saw something of that £100. Services rendered in. the past, however eminent, are not generally a sufficient consideration to support a promise. If a plaintiff suing on a warranty were to say in his statement of claim that " in con- sideration that he (the plaintiff) had bought a horse of the defendant, the defendant promised that it was sound," such a pleading might be demurred to. No sufficient consideration would appear for the Roscorlav. defendant's alleged promise. Thomas, 3 But a past consideration will support a promise when it consists of services rendered by the plaintiff at the defendant's request. This request (Brathwait's for instance) is generally express ; the promisor has actually asked the promisee to do what he has done. But sometimes the law implies such a request, e.g. — 1. Where the plaintiff has been compelled to do what the defendant was legally bound to do. Not content with presuming that the defendant requested the plaintiff to settle for him, the law here goes on to presume that, in consideration of that settlement, the defendant promised the plaintiff to indemnify him. Both the promise and the request are implied. The acceptor of a bill of exchange must pay it when due ; he is primarily liable on it. If he does not pay it, LEADING CASES MADE EASY. the holder may sue one of the indorsers ami make him pay it. In such a case the law presumes that the acceptor asked the indorse! to pay it, and presumes further that the acceptor subsequently promised to pay the indorser. And whenever a surety is called on to pay his />, ,„•„„ / fi principal's debt, the law presumes (1) that the principal asked him Perrand, to pay it and (2) that he went on to promise indemnification. So 6 B - & c - too, in a case where the plaintiff, a carrier, having by mistake delivered some goods to the defendant, who wrongfully appropriated them, was obliged to pay damages to the proper consignee, it was held that he could recover the amount against the appropriator. Brown <.. As to when a surety is justified in resisting payment on behalf of Jl"'''.i>"" l > * the debtor, the question seems to be — What would a reasonable man have done under similar circumstances in a cause entirely his own < Would he have defended the action or not ? " No person," said Lord Tindall v. Denman once, " has a right to inflame his own account against another -^'"> J 1 "■ . & VV by incurring additional expense in the unrighteous resistance to an action he cannot defend." Short v. A distinction is to be observed between compulsion by law and KaXUmay, 11 A t V compulsion by agreement. If it was merely by agreement that the defendant was bound to do what the plaintiff has been compelled to do, the plaintiff mitst sue him on the special agreement and not on implied assumpsit. This was held in a case in which the defendant had agreed to pay certain taxes which the landlord was by statute Spencer \. bound to pay. Parry ,3 2. Where the promisor has adopted the benefit of the consideration. Here too both request and promise are presumed. If a tradesman sends me a quantity of things which I did not order, but have no objection to keep, the law presumes (1) that I asked him to send them, and (2) that I promised to pay for them. The maxim omnia ratihabitio retrotrahitur et mandato priori cequiparatur applies. 3. Where the promisee has voluntarily done what the promisor was legally compellable to do, and the latter in consideration thereof expressly promises. Jones owes his tailor .£50, and I, with that good nature for which I am proverbial, pay it for him, whereupon jy,-,,., v Jones promises to repay me the money. Here, it must be noticed, Mill, 1 B. it is only the request that is implied. It is to be observed that Lampleigh v. Brathwait is also an authority for the somewhat obvious proposition that "labour tho' unsuccessful may form a valuable consideration." As to what constitutes a sufficient consideration, see Thornborow v. JVhitacre, p.l. LEADING CASES MADE EASY. Moral Consideration insufficient. [3] BEAUMONT v. REEVE. [8 Q. B.] Henry Reeve seduced Caroline Beaumont. They lived together in immoral intercourse for about five years, when they resolved to separate. In consideration of the cohabi- tation, Reeve promised to pay her an annuity of £60 a year. But the seducer was also a liar, and this was an action for arrears. It was held, however, that there was no legal consideration for Reeve's promise, and the lady must do without the annuity. The student must clearly understand that it was not because the contract was illegal that it was held to be void, — there was no illegality about it, — but simply because there was not what the law counts a consideration fox Mr. Reeve's promise ; so that if the contract had been under seal (when considerations are unnecessary) it would have been binding on him, and the young lady would have " lived happily to the end of her days." If, however, future and not past cohabitation were the consideration, such a consideration would be On im- illegal, and would vitiate even a contract under seal. moral con- >pho' once the other way, it is now clear law that a merely trSiCts 866 Pearce v. mora l obligation will not support a promise. But a moral obliga- Brooks, p. tion which was once a legal one, and would be so still but for the "■ intervention of some statute or positive rule of law, is sufficient. A promise, for example, to pay a debt barred by the Statute of See note to Limitations is binding. \\ennallv. ^ bankrupt who has obtained his discharge is prevented by the B. & P. Bankruptcy Acts from making a binding promise to pay debts from which those Acts have released him. But it has been recently held Jakeman that such a promise is binding if made on a new consideration. v. Cook, 4 Ex. Div, Proposal may be retracted before Acceptance. [4.] COOKE v. OXLEY. [3 T. R.1 Oxley having a quantity of tobacco on hand proposed LEADING CASES MADE EASY. 7 to Cooke to sell him 266 hogsheads of it. Cooke liked the looks of the offer, but, not being quite able to make up his mind on the subject, asked to be allowed till four o'clock to decide ; and Oxley consented to this. But after Cooke had gone away to think it over, Oxley altered his mind and resolved not to let Cooke have his tobacco. This was an action by Cooke for non-delivery of the tobacco ; but he did not succeed, because it was held that, as the agreement was not binding on Cooke till four o'clock, there was no consideration for Oxley's promise, which therefore could be retracted with impunity. It is to be observed that if Cooke had given Oxley sixpence for keeping the offer open, or if he had agreed to pay a higher price for the tobacco in consequence, there would have been a consideration for Oxley's promise, and he would have been bound by it. The case was followed in Routledge v. Grant, and indeed 1 Moo. it may be taken to be clear law that a proposal may be revoked at any time before acceptance. It is on this principle that at an auction a bidding can be retracted any time before the hammer goes down. Till then there has been no acceptance of the bidder's Poyne v. proposal. 3 t'^R. It may be convenient here to mention the existence of a number of cases in which it has been held that an action can be maintained for a reward offered in an advertisement at the suit of any person who has fulfilled the conditions therein prescribed. What may be termed the leading case on the subject is Williams v. Carwardine, where the 4 B. & AcL defendant had caused a handbill to be published to the effect that whoever would give such information as should lead to the discovery and conviction of one Walter Carwardine's murderer should receive a reward of ,£20. Soon after this advertisemeut was issued, the plaintiff was so severely beaten by a man she was living with that she thought she was going to die, and by way of easing her conscience, she gave information which led to the conviction of the man who had beaten her. The gentleman was hanged, and the lady got better. In an action by her against the person who had offered the reward, it was held that she was entitled to succeed, altho' the jury expressly found that she was not induced to give the information by the offer of the reward, but by other motives. " There was a contract," said Parke, J., "with any person who performed the condition men- tioned in the advertisement." [6.] LEADING CASES MADE EASY. Contracts made through the Post. ADAMS v. LINDSELL. [1 B. & A.] Mr. Lindsell, wool-dealer at St. Ives, one day wrote a letter to Messrs. Adams and Co., woollen manufacturers of Bromsgrove, offering to sell them a quantity of wool at a certain price, but adding that he must have their reply, if they wished to close, " in course of post." Now, whereas Bromsgrove is, as every schoolboy knows, in Worcestershire, Mr. Lindsell was ignorant enough to address his envelope to " Bromsgrove, Leicestershire," and in consequence of that mistake his letter reached its destination several days late. Directly Adams and Co. did receive it, thinking the offer a decidedly good one, they wrote off and accepted it. But in the meantime Mr. Lindsell had inferred from their silence that they did not want his wool, and the day before their letter reached him, but after it had been posted, had sold it to someone else. This action was brought for non-delivery of the wool, See p. 6. and the defendant contended, citing Cooke v. Oxley, that he had a right to retract his offer till notified of its accept- ance, and urging that he could not be bound on his side till the plaintiffs were on theirs. But the court said — " If that were so, no contract could ever be completed by the post. For if the defendants were not bound by their offer when accepted by the plaintiffs till the answer was received, then the plaintiffs ought not to be bound till after they had received the notification that the defendants had received their answer and assented to it ; and so it might go on ad infinitum. The defendants must be considered in law as making, during every instant of the time their LEADING CASES MADE EASY. !l letter was travelling, the same identical offer to the plaintiffs, and then the contract is completed by the accept- ance of it by the latter. Then as to the delay in notifying the acceptance, that arises entirely from the mistake of the defendants, and it therefore must be taken as against them that the plaintiffs' answer was received in course of post." Adams v. Liridsell is the leading case as to contracts made through In re Im- the post. The rule seems to be now clear and well settled that the P ertai contract becomes binding the moment the letter of acceptance is f j^ ar . ' posted, altho' it may never reach its destination. A person not long seilles, ago wrote and asked for 100 shares in a company, and the secretary Harris s accordingly wrote back informing him that they had been allotted y ^ a ' n( j' to him. After this letter of acceptance had been posted, but before Household it had reached him, the applicant altered his mind, and wrote and ^ ire * nr 81LVCLTICG said he did not want the shares. But it was too late for looking q _ v> back. The contract was held to have been complete directly the Grant, 4 secretary posted his acceptance. „ • ^ 1V ' I'll HCClll V It does not make any difference that it is by the fault of the Post Topham Office that the letter of acceptance has been delayed or lost. 8 C. B. Dunlop v. Higgins, 1 H. L. C. Formation of Contract. JORDAN v. NORTON. [6.] [4 M. & W.] Farmer Norton wrote to Farmer Jordan offering to buy a particular mare if the latter would w T arrant her " sound and quiet in harness." Farmer Jordan wrote back warranting her " sound and quiet in double harness'' but saying he had never put her in single harness. The mare was taken to Norton's by an agent, who exceeded his authority (and whose act was immediately repudiated) and then — as the experienced reader will have foreseen — turned out to be unsound. This was Farmer Jordan's action for the price of the mare, and the real question was whether 10 LEADING CASES MADE EASY. or not there was a complete contract. This question was decided in the negative. " The correspondence," said Parke, B., " amounts altogether merely to this: that the defendant agrees to give twenty guineas for the mare, if there is a warranty of her being sound and quiet in harness generally, but to that the plaintiff has not assented. The parties have never contracted in writing ad idem!' It takes two to make a contract, and those two must have agreeing minds. That being so, an offer must be assented to in the precise terms in which it is made. Jordan v. Norton is an excellent illustra- 8 M & W. ti 011 OI " tQ i s - S° is Hutchinson v. Boivker, where, it having been shown that in the corn trade there was a distinction between "good" barley and "fine" barley, there was held to be no binding contract between a person who offered to sell " good " barley and one who wrote back, "We accept your offer, expecting you to give us fine barley and full weight." 3 Q. B. D. • I n the recent case of Lewis v. Brass, it was held that, altho' in the but see written acceptance of a tender there may be an intimation that a Stanley v. more f orma i document will be afterwards prepared, yet the parties well L E, ma y ^ e bound to the terms of the tender and acceptance. " It has 10 C. P. been argued in this court," said Bramwell, L.J., " that the tender was not accepted pure and simple, but with an additional term; and this contention was founded upon the circumstance that the letter of the plaintiff's architect after stating that the defendant's tender was accepted, proceeded to say that the contract would be prepared by the plaintiff's solicitors. I do not take this to be the true construction of the documents ; it was merely intended that a formal instrument should be drawn up, such as is usually prepared when works of magnitude are undertaken ; and, in support of this construction, I may observe that the defendant made no objection to the letter from the architect. The acceptance therefore was pure and simple, and did not impose any additional terms. It is possible that the formal contract would have contained terms not specially mentioned in the tender by the defendant, and in the letter from the plaintiff's architect — for instance, as to the payment of the contract price by instal- ments, or as to what part of the work was to be first commenced ; but the defendant might have successfully objected to the introduc- tion of such terms, and the work would have been proceeded with upon the terms contained in the tender and in the letter." LEADING CASES MADE EASY. \\ Debt, Default, or Miscarriage. BURKMIRE v. DARNELL. [7.] [6 Mod. & S. L. C] Lightfinger wanted somebody to lend him a horse ; but who would lend Lightfinger a horse? He was so suspicious a character that everybody he applied to remarked " Walker," which he thought not a particularly appropriate reply to one who aspired to be a rider. At last he got the weak side of one Darnell, who had no horses himself, but knew some persons who had. To one of these persons, named Burkmire, Darnell went, and, with many expres- sions of confidence, undertook to be responsible for Light- finger's bringing safely back any horse that Burkmire might entrust with him. On the faith of this undertaking — a verbal one of course — Burkmire let Lightfinger have one of the best horses in his stable, and that gentleman rode away, and, as there were neither railways nor telegraphs nor police in 1700, neither he nor the horse were ever heard of again. This being the state of the game, Burkmire played the only card that was left him : he sued the surety. This card, however, did not prove the trump he anticipated. He found to his cost that he ought to have taken Darnell's promise in writing. The Statute of Frauds says that a " promise to answer for the debt, default, or miscarriage of another person " must be in writing, and it was precisely that promise which Darnell had made by word of mouth. So he went away a sadder and a wiser man. 12 LEADING CASES MADE EASY. [8.] MOUNTSTEPHEN v. LAKEMAN. [L. E. 5 Q. B.] A builder was employed by the Brixham Board of Health to make a main sewer for them. He got his work finished, and the Board, in the usual peremptory manner of local authorities, gave notice to the neighbouring house- holders that they must connect the drains of their houses with the main sewer, or else the Board would do it for them at their expense. The householders displayed the slackness common on such occasions ; and Mr. Lakeman, the chairman of the Board, happening to meet the builder in the street a few days afterwards, the following conversation took place : — "Well, Mountstephen," said Lakeman, "you've done the main sewer very nicely for us ; would you have any objec- tion to making the connections too ?" " Certainly not, Sir ; if you or the Board will order the work, or become responsible for the payment, I shall be proud." " Well then" said Lakeman, " go and do it ; 1 will see you are paid." Mountstephen, therefore, made the connections, the Board's surveyor superintending the progress of the work, and by and by he sent in his account to the Board, debiting them with the account. The Board, however, refused to pay, saying they had not authorised the work. Mount- stephen, therefore, brought an action against Lakeman, and it was held that Lakeman' s words were evidence to sustain a claim against him 'personally , and that they did not constitute a promise to pay the debt of " another." The test as to whether or not any undertaking for another should have been in writing is this : — does that other, after the undertaking has been made for him, remain primarily liable ? If (like Lightfinger) he does, the undertaking cannot be sued on unless it is in writing ; if (like the Brixham Board) he does not, it is binding, tho' not in writing. If I go with you into a Bond Street tailor's, and say to the tailor, LEADING CASES MADE EASY. 13 " Make this gentleman a pair of trousers, and if he doesn't pay you, I will,'" in this case you clearly remain primarily liable, and I cannot be sued as your surety, because my promise was not in writing. But if, when we go into the shop, I say, " Make this gentleman a pair of trousers, and put them dovrn to me," here you are not primarily liable, and therefore the 4th section of the Statute of Frauds does not require my promise to be in writing. So, too, if the effect of the undertaking is to extinguish another person's debt, so that, tho' up to that time he has been liable, he remains so no longer, the undertaking is binding, tho' not in writing. If, for instance, under the old debtor laws, when the effect of a creditor's liberating a debtor whom he had taken in execution was to release the debt, Weakman promised to pay the amount of Hardup's debt to Holdfast, if Holdfast would release him from arrest, this promise was not within the statute, because the debt was gone by the discharge of the debtor out of custody, and "Weakman Goodman remained solely liable. v - C aase * 1 "R & A When the undertaking has been by word of mouth, it is for the jury to say whether or not the person for whose benefit the promise has been made is primarily liable ; and this is a question of fact which, depending as it does on all the circumstances of the case, it is sometimes extremely difficult to decide. On this point the case of Keate v. Temple (where a Portsmouth tailor tried unsuccessfully to l Bos. & make a lieutenant in the navy pay for a quantity of coats supplied P ul1 - to his crew, — the defendant having said, " I will see you paid at the pay-table ") may advantageously be compared with Mountstepheu v. Lalceman. It has been held that the undertaking of a del credere agent, who guarantees the purchaser's solvency, is not within the statute, altho' of course such an agent may find himself by and by paying another person's debt. Couturier It is to be observed that the words of the statute (" debt, default, Z'™'*''''' or miscarriage ") do not refer exclusively to contracts. Accordingly, if my friend Jones wrongfully takes Brawn's horse and injures it, and I then promise Brown to pay the damage if he will not take proceedings against Jones, I am not bound, unless I promise in writing. " This case," said Abbott, C.J., in the case referred to, "is Kirk-ham clearly within the mischief intended to be remedied by the Statute v. Marter, of Frauds : that mischief being the frequent fraudulent practices - B - & Ald - which were too commonly endeavoured to be upheld by perjury ; and if it be within the mischief, I think the words of the statute are sufficiently large to comprehend the case. . . . The word ' mis- carriage 'has not the same meaning as the word ' debt ' or 'default; it seems to me to comprehend that species of wrongful act, for the consequences of which the law would make the party civilly re- 14 LEADING CASES MADE EASY. sponsible. The wrongful riding the horse of another without his leave and licence, and thereby causing its death, is clearly an act for which the party is responsible in damages ; and, therefore, in my judgment, falls within the meaning of the word 'miscarriage.'" [9.] WAIN v. "WARLTERS. [5 East & S. L. C] Mr. Warltefs was decidedly a fortunate litigant. He had a friend named Hall, who became indebted to Messrs. Wain and Co. to the extent of £56, and with no particular means of payment. To extricate this friend from his difficulties Warlters sat down and wrote out the following collateral security : — "Messrs. Wain and Co., " I will engage to pay you by half-past four this day £56 and expenses on bill that amount on Hall. " (Signed) Jonathan Waklters." No. 2, Cornhill, April 30th, 1803. Hall, of course, did not pay the money. So Wain and Co. sued Warlters on his guarantee. But the document was held to be so much waste paper, as no con- sideration for Warlters' promise to pay the £56 was expressed in it. The Statute of Frauds requires that " the agreement •' ' shall be in writing ; and obviously the consideration is as much a part of an " agreement " as the promise. But tho' Wain v. Warlters is, there- fore, a perfectly correct interpretation of the Statute of Frauds, the law on the subject (so far as regards guarantees) has been changed by 19 & 20 the Mercantile Law Amendment Act, passed in 1857. Guarantors Vict. c. 97. were always wriggling out of their engagements (as Warlters did) by technical defences, and, to put a stop to such dishonesty, it was enacted that, provided a consideration did in fact exist, it need not be put into the document, but might be proved by oral evidence. It is to be remarked that even before the Act of 1857 it was sufficient if the consideration appeared in the document by necessary inference. LEADING CASES MADE EASY. 15 Wain v. Warlters is utilised in S. L. C. as the leading case on the " memorandum or note in writing " spoken of in the Statute of Frauds. It is necessary that this memorandum should have heen made before the commencement of the action. It need not be very exact in its terms, the principle being that it is just such a memorandum as merchants in the hurry of business miyht be supposed to make. It is necessary, however, that the names of both parties, or at all events, a clear description of them, should appear. In a recent case the particulars stated that the sale was by direc- Sale v. tion of " the proprietor," and the question was whether that was a ^ fl ™^ proper description of the seller. It was held to be sufficient. " The g q .' an( j question is," said the Master of the Rolls, " can you find out from the see Rossiter memorandum who the vendor is ? The property is stated to be put Z'^fS^' up for sale ' by direction of the proprietor.' Therefore, the pro- prietor is the vendor, and is referred to as the person who employs the auctioneer to sell. What more do you want ? It is said that the term ' proprietor ' is not a sufficient description. I think it is an excellent description." In another well-known case the question was whether it was sufficient that the names of both parties appeared, but the seller was not named as seller. The memorandum ran, " D. Spooner agrees to buy the whole lot of marble purchased by Mr. Vandenbergh now lying at the Lyme Cobb at Is. per foot." It was intended, of course, that Mr. Vandenbergh should be the seller, but the memorandum did not describe him as such, and was, therefore? held insufficient. Vanden- The subject matter of a contract of sale need not be described very bergh v. precisely, parol evidence being admissible for the purpose of identifica- T^°p ,e i' tion. Thus, " the property in Cable Street," " the house in Newport," ]<; x . and " the land bought of Mr. Peters," have been held to be sufficient descriptions. As to the signature, it may come in any part of the document, Baker v. even at the top. It need not be written at full length, or written at Dening, all. It may be by initials or mark, and it may be printed or stamped, i '/ . It is not necessary that the signatures of both parties should appear. S0) , v . The signature required is that of " the party to be charged " only ; so Jackson, that a defendant who signed cannot get out of his contract merely by showing that the plaintiff didn't. The party who has not signed may enforce the contract against the party who has. Laythoarp The terms of the contract, however, need not all appear in the v - Bryant, same document. But the connection between various documents cannot be proved by parol evidence ; it must appear from the docu- ments themselves. On this point see Boydell v. Drummond, p. 30. The memorandum need not be signed by the party to be charged himself ; it may be signed by "some other person thereunto by him lawfully authorised." This authority, in the case of the 4th and 17th l(j LEADING CASES MADE EASY. sections, may be conferred without writing. But one of the contract- Fare- ing parties cannot be the other's agent for the purpose of signing ; brother v. an( \ f or ^ g reason an auctioneer cannot successfully sue on a contract ' 5 B & A. which he has signed as agent, tho', if his clerk has signed, he may. gird V- Many contracts are made through brokers, and when a broker is the Boulter, agent of both parties, his signature binds them. A broker — accord- Ad. j n g £ £j ie g enera i practice — first makes an entry of the contract in q ' his book and signs it, and then sends a copy of it to each party — the 1 Esp. "bought note" to the buyer, and the "sold note" to the seller ; and Grant v. these notes, if they agree, constitute a sufficient memorandum to Fletcher, satisfy the statute. If they do not agree but vary materially, they ., * do not constitute a binding contract. If there are no bought and sold hicvewright ° 7° v. Archi- notes, or if they disagree, it seems that recourse may be had to the bald, 17 entry in the broker's book. ^" The student should notice a difference in the wording between the Leroux v. 4t] d t] 17th ti Tll 4th « act i on s } ia n De brought " Brown, J ... 12 C. B. ; merely, while the 17th declares that no contract within it shall be and see « allowed to be good." The 4th section, therefore, refers only to the 1 Wheeler P roce dure, an( l d° es n °t affect the intrinsic validity of the contract. 8 C. B., This may sometimes be found a fruitful distinction. N. S., and Brittain v. Rossiter, 40 L. T., N. S. [10.] WHITCHER v. HALL. [5 B. & C] A Mr. Whitcher agreed to let one Joseph Hall have 30 cows for milking purposes at £7 10s. each per annum, and James Hall, like a proper sort of brother, became surety for the due payment of the money. Joseph then entered on his cows, and we will hope he did not water the milk. By and by it chanced, unfortunately, that some of the cows died, and the terms of the letting were in consequence changed without James being con- sulted on the subject : and indeed it is difficult to see that the alteration in any way really prejudiced him. By the terms of the altered agreement Joseph was to have the milking of 28 cows during one part of the year and of 32 during the other. It does not require a very profound knowledge of arithmetic to discover that the average of 28 LEADING CASES MADE EASY. 17 and 32 is 30. But altlio' there was no substantial altera- tion of the original terms, yet the court considered that an alteration was an alteration, and that James Hall was thereby released from his promise. It may be added that from this opinion Mr. Justice Littledale dissented, citing the maxim de minimis non curat lex, by which he meant that the alterations were so trifling and immaterial as to be not worth considering. The man who is kind enough to become surety for a friend under- takes a very thankless office ; and the law is jealously anxious to shield him against fraud and imposition. Wkitcher v. Hall well illustrates the rule that any alteration of the terms of the original agreement by the creditor and the debtor behind the surety's back will exonerate the surety, unless the rights against him are expressly reserved. The law on the subject has been very recently summed up by Cotton, L.J., as follows : — "The true rule in my opinion is, that if there is any agreement between the principals with reference to the contract guaranteed, the surety ought to be consulted, and that if he has not consented to the alteration, altho' in cases where it is with- out inquiry evident that the alteration is unsubstantial, or that it cannot be otherwise than beneficial to the surety, the surety may not be discharged ; yet, that if it is not self-evident that the alteration is unsubstantial, or one which cannot be prejudicial to the surety, the court will not, in an action against the surety, go into an inquiry as to the effect of the alteration, or allow the question, whether the surety is discharged or not, to be determined by the finding of a jury as to the materiality of the alteration, or on the question whether it is to the prejudice of the surety, but will hold that in such a case the surety himself must be the sole judge whetJier or not he will consent to remain liable notwithstanding the alteration, and that if he has not so con- sented he will be discharged." Holme v. Altering the terms is not the only way in which the surety be- J! ''""^''' / \ comes a free man once more. He is always discharged in the follow- ing cases : — (1). If there has been a fraudulent misrepresentation to, or con- cealment from, him. Lee v. (2). If he has executed the instrument on the understanding that p ?('\- 1 . another person would be a co-surety, and the person intended as such an ,i Bee co-surety refuses to act. PhUUpt v. (3). If the principal's default was committed with the connivance * , b or gross negligence of the creditor. q. b. C 18 LEADING CASES MADE EASY. Rees v. (4). If the creditor discharges the principal , or enters into a binding Herring- agreement to give him time. ton 2 Ves inn and ' ( 5 )- ^ tne creditor omits to do something which was the surety's Eq. L. C. consideration for entering on the undertaking. Gaiety And ' 0l C ° UrSe ' JkkinsJn, (6). If the principal pays the debt. 1 C. P. D. Of course, some of these are cases, not so much of a discharge from liability, as of liability never having really attached. It often becomes an important and difficult question whether a particular guarantee is a continuing one or not ; that is to say, whether the surety's undertaking is to be confined or not to one transaction. The question is to be answered by considering the surrounding circumstances, and getting as near as possible to the intention of the parties. About a dozen years ago a man who had a nephew setting uj) as a butcher gave a cattle-dealer this guarantee : — "£50. — I, John Meadows, of Barwick, in the county of North- ampton, will be answerable for =£50 sterling, that William York, of Stamford, butcher, may buy of Mr. John Heffield, of Donington." The young butcher made payments at varii us times to Mr. Heffield amounting to over ,£90, but he afterwards failed to meet his engage- ments ; and the question was whether anything could be got out of Meadows as surety. Meadows strenuously maintained that, as his nephew had paid ,£90, and £90 was a larger sum of money than £50, the guarantee was at an end. But it was held that, as the circum- stances showed that the object of the guarantee was to keep the young man going as a butcher, it was a continuing guarantee, and Heffield v. poor Mr. Meadows must pay. Meadows, A surety who has had to pay his friend's debt is entitled to have p' p' transferred to him any securities which the creditor may have held, 19 & 20 an( I that ai tho' h e ma y n °t have been aware of their existence and Vict. c. 97, they have been given since he entered on the suretyship. And if s - 0> the creditor has so dealt with the security that on payment by the surety it is no use to him, he is discharged to the extent of the Campbell security. He is also entitled to call on his co-sureties (whether y.Rothwell, ' D0Unc i by the same instrument or not) for contribution, and it _ .' ' would seem that if there are three co-sureties of whom one has -Dcvtnn v. Winchel- become insolvent, the surety who has been compelled to pay the sea, 1 Cox debt may come upon the remaining solvent surety not merely for an .amUiq. aliquot proportion of the money paid, but for a moiety ; if the debt, for instance, was £90, he is entitled not merely to £30, but to £45. This is in virtue of the famous provision in the Judicature Act that, 36 & 37 where the rules of law and equity conflict, the latter shall prevail. Vict. c. 66, : s. 25, .sub-s. 11. LEADING CASES MADE EASY. 19 EASTWOOD !>, KENYON. [11.] [11 A. & EJ John Sutcliff, beginning to feel that he wasn't the man he used to be, thought it was about time to make his will, and turn his attention to another and a better world. He left everything he had in the way of real property to his only daughter, and named his friend Eastwood executor. But John Sutcliff was not destined to die just yet; and " mansions in the skies " were not the only estates to which he was busied in making his title clear. Before he died he had sold all the lands mentioned in his will, and bought other lands. Of those he made no will whatever, and when he died, as he did soon afterwards, they descended to his child as heiress at law. This young lady, at the time of her father's death, was under age, and East- wood, on the strength of the now useless will (in those days a will did not speak from the time of the testator's death), and the fact that he was an old and dear friend of her father's, took on himself to act as her guardian. There is, so far as I am aware, no reason to doubt that he dis- charged his self-imposed duties faithfully enough. We will hope that he kept off the impecunious younger sons, and the still more objectionable adventurers of the bag- man type, like a man. But Eastwood, with all his good intentions, was a poor man ; and, for the purpose of managing Miss Sutcliff s affairs, he found it necessary to borrow money. He borrowed £140 from a person named Blackburn, and gave him his promissory note for the amount. By and by Miss Sutcliff did what all young heiress, s, sooner or later, must do — she got married ; the fortunate individual being a Mr. Kenyon. Recognising his claims to his gratitude, Kenyon pro- mised Eastwood verbally that he would pay Blackburn the c 2 20 LEADING CASES MADE EASY. £140. But somehow or other, when the time came, small as the sum was, Kenyon could not bring himself to part with the money ; and finally this action had to be brought on his promise. Kenyon did not deny that he had made the promise. But he raised two objections to the plaintiff's claim : — (1). That his promise was one "to answer for the debt, default, or miscarriage of another person," and therefore (by the Statute of Frauds) should have been in writing. This point was overruled, for the judges said that the words in the statute contemplated the promise being made to the creditor, and had no reference when the promise was made, as here, to the debtor himself. Beaten from this position, Kenyon retreated to another. (2). That there was no consideration for his promise. And this point was decided in his favour, for a mere moral consideration is not strong enough to support a promise. So Eastwood was £140 out of pocket by his executor- ship. Eastwood v. Kenyon is a useful case to remember on both the points decided. Green v. The first point, tho' once doubtful, may be taken to be now clear. Cresswdl, -^ Q ^ \ ori g a g a man promised a bailiff that, if he would not arrest a ' relative of the former's for non-payment of a judgment debt, he would pay the money himself ; and this promise, tho' not in writing, was held to be binding, as it had not been made to the original creditor, and therefore was not within the Statute of Reader v. Frauds. Kinrjham, -p or f urt ^ er illustration of the second point the student should lO K-. ±>., ■N. g. refer to the leading case of Beaumont v. Reeve, p. 6. LEADING CASES MAPI-: EASY. Interests in or concerning Lands, &c. 21 CROSBY v. WADS WORTH. [12.] [6 East.] Farmer Wadsworth, of Claypole, in Lincolnshire, had a field of likely-looking grass, which Crosby, with an eye to hay, desired to purchase. Meeting casually one day in June, it was agreed between them that Crosby should have the grass for 20 guineas, only he was to have the trouble of mowing and making it into hay. On this understanding they separated. But, two or three weeks afterwards, Wadsworth again happened to meet Crosby, and remarked pleasantly : — " By the way, I've decided not to let you have that grass of mine ; I don't think your figure is good enough ; " and the same day he sold it to a Mr. Carver for 25 guineas, thus clearing a five-pound note b}' his diplomacy. Mr. Crosby sued Wadsworth for his breach of contract, but unfortunately took nothing by that, as it was held that the contract was one which had to do with the land, and therefore should have been in writing, as required by the 4th section of the Statute of Frauds. The case that is always coupled with Crosby v. JFadsworth is Parker v. Staniland, where it was held that a contract for the sale of H East. growing potatoes was not a contract for the sale of any interest in land ; the potatoes being regarded as chattels stored in a warehouse. It is not easy, if possible, to extract a clear ami definite rule from the cases as to when a sale of growing crops is a sale of an "interest in or concerning " lands. Indeed, Lord Abinger has remarked, "It Rodwett v. must be admitted, taking the cases altogether, that no general rule is Phillip*, ' laid down by any one of them that is not contradicted by some other." And so recently as 1875 Lord Coleridge uttered a similar wail. " For my part," he said, " I despair of laying down any rule which can stand the test of every conceivable case.'' Perhaps, how- Marshall ever, the following summary of the law, from Mr. Benjamin's book, v. Green, will be found somewhere near the mark : — " Growing crops, if '' * ' 22 LEADING CASES MADE EASY. Benj. Sale of P. P. (2nd ed.) p. 99. Agn. Stat. Fr. p. 139. Tyler v. Bennet, 5 A. & E. Tnman v. Stamp, 1 St. Masscy v. Johnson, lEx. Mann v. Nunn, 43 L. J., C. P. Jeakes v. White, 6 Ex. TTr^Ai v. Stavert, 2 E. & E. fructus industhiales, arc chattels, and an agreement for the sale of them, whether mature or immature, whether the property in them is transferred before or after severance, is not an agree- ment for the sale of any interest in land, and is not governed by the 4th section of the Statute of Frauds. Growing crops, if fructus naturales, are part of the soil before severance, and an agreement, therefore, vesting an interest in them in the purchaser before sever- ance is governed by the 4th section ; but if the interest is not to be vested till they are converted into chattels by severance, then the agreement is an executory agreement for the sale of goods, wares, and merchandise, governed by the 17th, and not by the 4th section of the statute." Mr. Agnew, in his exhaustive treatise on the Statute of Frauds, says, '• The author ventures to submit that, iu order to carry out the intention of the framers of the statute, the test to be applied in con- sidering whether a contract for the sale of growing crops, whether frucius naturales or fructus industrials, whether mature or imma- ture, whether to be taken out by the seller or by the purchaser, is or is not within the statute — is, Did the seller contract to give the pur- chaser an estate in the land, or did he merely contract for the sale of a chattel, with or without a licence to the purchaser to go upon the land for a particular purpose ? " As to things other than growing crops, it has been held that an agreement that a person shall be allowed to take water from a well " concerns " land, and must be in writing. So must an agreement to let furnished lodgings, and one to convey an equity of redemption. On the other hand, an agreement by a landlord to build a water- closet for his tenant, an agreement relating to the expenses of investigating the title to land, and one for board and lodging merely, need not be in writing. Not to be performed within the space of One Year. [13.] PETER v. COMPTON. [Skin. & S. L. C] Those who knew him best did not consider Mr. Peter a marrying man. So it was that Mr. Compton thought he had got decidedly on the right side of the bargain when LEADING CASKS MADE EASY. 23 one evening in casual conversation across the walnuts and wine this agreement was come to: — Peter to payCompton a guinea down, in consideration that Compton would pay Peter a thousand guineas on his (Peter's) wedding day. Peter promptly paid down the guinea, and Compton pocketed it with a grin. Peter grinned too. The next act opens with Peter's wedding day, two years being supposed to have elapsed. Brilliant dresses, lovely bridesmaids, rosettes, church bells, and indigestible cake. But one is conspicuous by his absence. The reader can guess who. When Mr. P. led Mrs. P. away from the hymeneal altar, he sat down and wrote an extremely friendly little note to Compton, reminding him of that pleasant evening they spent together two years ago, and requesting the favour of a cheque for amount due, as per agreement. Compton was considerably taken a-back, but, like a sensible man, he hailed the first hansom, and went Straight to his solicitor. That gentleman told him to set his mind it rest ; for, said he, in a certain statute enacted of wise mm long ago it was provided that an " agreement that is no", to be performed within the space of one year from the making thereof " should be in writing. " And how/' asked the man of law, complacently stroking his chin, "hov the something can they make out that this agreement was to be performed within the year, when this sly dog Peter doesn't get married till two years after- wards ? Go home, my dear sir, and don't trouble yourself any more ibout it." Unfortunately for Compton, this rather plausible view of the law was not adopted by the judges, who came to the conclusion that the clause in the Statute of Frauds referred enly to agreements which in their terms were absolutely incapable of performance within the year, and required :hat such agreements only should be in writing. Now, th's agreement between Peter and Compton was 24 LEADING CASES MADE EASY. clearly not " incapable of " performance within the year, for Peter might have got married the very next day ; so that it was binding, altho' not in writing. Brace- girdle v. Ifeakl, 1 B. & Aid. Bceston v. Collyer, 4 Bing. Birch v. Liverpool, 9 B. & C. Eley v. Positive, d:c., Assur- ance Co., 1 Ex. Div. Knowlman v. Bluett, L. R. 9 Ex. Lareij v. Shannon, 4 Ex. Div. [14.] If you were to engage a cook or a tutor for a year's service from next Tuesday fortnight, the agreement between yourself and the servant would clearly be one which by its terms was incapable of performance within the year, and therefore would not be Uncling unless in writing. A general hiring, however, which is construed to be for a year, need not be in writing. Supposing the agreement to be in its terms incapable of perform- ance within the year, it must still be in writing, tho' there :'s a con- dition which may put an end to it within the year. Thus, s. contract with a coachmaker to hire a grand carriage from him for dve years has been held altogether void because not in writing, although it was part of the agreement that either party might put an end to it at a moment's notice. On the same principle a contract between a solicitor and an insur- ance company that the former shall be the company's solictor during his whole professional life, and as long as they continue t company, must be in writing, notwithstanding the chance of tht contract's abruptly terminating by death, resignation, or otherwise. So, too, must a contract by one person with another that he will rot set up a particular trade during their joint lives. But a promise by a man to a woman he had cohabited with to maintain seven illegitimate children so long as she should maintain and educate then has been held not within the statute. The question in all these cases is, Is the contract prima facie incapable of performance within the year ? The section applies only to contracts which are not to hi. performed on either side within the year ; so that Peter v. Compton (night have been decided on the ground that it had been wholly executed by one of the parties. On this point see Donellan v. Read, beloV. DONELLAN v. READ. [3 B. & Ac] A grumbling tenant represented to his landlord that certain repairs and alterations were necessary to tie proper enjoyment of his holding. The good-natured landlord accordingly agreed to spend £50 in improvement, which should be carried out forthwith ; and, in consideration of LEADING CASES MADE EASY. this, the tenant agreed to pay an additional £5 a year during the remainder of his term. This agreement was made, not in writing, but in the course of an ordinary con- versation. The landlord set to work, and in a month or two completed the suggested alterations, and the tenant ought to have duly paid his extra £5 a year. But he failed therein, and this was an action brought against him by his landlord. The defence set up by the tenant was that the agreement was one which, by its terms, could not be completed till the last year of the defendant's tenancy, when the last additional £5 would become due ; and, that being so, that it came within the provision of the Statute of Frauds that an " agreement that is not to be performed within the space of one year from the making thereof" cannot be sued on unless in writing. It Avas held, however, and is still law, that the statute does not apply where one of the parties is to execute his side of the agreement within the year, tho' the other is not to execute his till long afterwards. This agreement between the landlord and his tenant was therefore held binding, because by its terms Donellan was to carry out his part of it within the year. Before this case was decided the contrary of the principle it establishes seems to have been considered the law. The case of Peter v. Compton suffices to show this ; for the moment Mr. Peter laid his guinea on the table the agreement was executed on his side, and therefore there should have been no necessity to argue that his marriage might have taken place within the year. It is to be observed that Donellan v. Read makes the word " agree- ment " bear two different meanings in the same section of the Statute of Frauds. In Wain v. Warlters we have seen that it in- See p. 14. eludes what is to be done on both sides, but in the present case it clearly receives a narrower signification. Another point raised by the tenant in Donellan v. Read was that the agreement came within the statute as referring to land. But it was held that tho' this would have been a perfectly valid objection if the repairs and alterations had been only to be executed because of the lease, it was different when the agreement was only collateral to the lease. $ 26 LEADING CASES MADE EASY. Goods, Wares, or Merchandises for the price of Ten Pounds. [15.] BALDEY v. PARKER. [2 B. & C] Mr. Parker has not paid an exorbitant price for fame. He went one day into a linendraper's shop, and bargained for a number of trifling articles, a sejmrate price being agreed on for each, and no one article being priced so high as £10. The articles that Mr. Parker decided to buy he marked with a pencil, or assisted in cutting from a larger bulk. Then he went home — he always did — to tea, desiring that an account of the whole should be sent after him. This was done, and the sum Parker was asked to pay was £70, minus 5 per cent, discount for ready money. This discount he quarrelled with, not considering it liberal enough, and, when the goods were sent to him, he refused to accept them. This was an action by the linendraper against his recal- citrant customer, and the main question was whether the contract was one " for the sale of goods, wares, or mer- chandises for the price of £10" within the 17th section of the Statute of Frauds, the honest linendraper saying that it wasn't, and the other gentleman saying that it was. The question was decided in the affirmative, the contract having been an entire one, and " it being the intention of that statute,'' as Holroyd, J., said, "that, where the contract, either at the commencement or at the conclusion, amounted to or exceeded the value of £10, it should not bind unless the requisites there mentioned were complied with." " The danger," he added, " of false testimony is quite as great where the bargain is ultimately of the value of £10 as if it had been originally of that amount." LEADING CASES MADE EASY. -^ Where, however, at an auction several successive lots are knocked Emu down to the same person, a distinct contract arises as to each lot. o'Tf" But it has been held that, tho' at the time of the contract it is uncertain whether the subject-matter of the Bale will lit- worth ilO or not (e.g., suppose the sale to be of a future crop of turnip seed, which may or may not turn out a success), yet if that figure is ulti- Watts v. mately reached, the statute applies. *™ ** It is to be observed that, tho' the word in the 17th section is „ r , ' r ^ T ' ' 9 Geo. IV. "price, the effect of sect. 7 of Lord Tenterden's Act, which is to c . 14. be read with the 17th section of the Statute of Frauds, as if incorpo- Harman rated therein, is to substitute the word " value? 1 v - ^ ieeve > -I O / 1 T> It may be added that in the leading case an attempt was made to bring the purchaser within the other part of the 17th section by showing that he had "accepted and actually received" the goods. The continuance of the vendor's Hen, however, was held to be fatal See Elmore to such a contention. 7', ' v ''"' Accept and actually Receive. ELMORE v. STONE. [16.] [1 Taunt.] Elmore was a livery stable-keeper, and had a couple of horses for sale, for which he wanted £200. Stone admired the horses, but not the price. Finding, however, he could not get them for less, he sent word he would take the horses, " but, as he had neither servant nor stable, Mr. Elmore must keep them at livery for him." In consequence of this message, Elmore removed the horses from his sale stable into another stable, which he called his livery stable. In an action which he brought for the price, the question was whether such removal was a sufficient constructive delivery to take the case out of the Statute of Frauds, and it was held that it was, as Elmore from that time held the horses, not as owner, but as any other livery stable-keeper might have done. 28 LEADING CASES MADE EASY. [17.] TEMPEST v. FITZGERALD. [3 B. & A.] Mr. Fitzgerald, paying a visit to Mr. Tempest, fell in love with one of his host's horses, and finally agreed to buy it for 45 guineas. He could not do with the animal just then, but he said he would call for it on his way to Doncaster races, and Tempest agreed to take care of it in the meantime. Both parties understood the transaction to be a ready-money bargain. Just before the races Fitz- gerald returned to Tempest's house, galloped the horse, and gave various directions about it, treated it in every way as his own, and asked his host to keep it a week longer, saying he would return immediately after the races, pay the 45 guineas, and take the horse away. Unfortu- nately, during the Doncaster race week, the horse died, and mutual recriminations ensued ; Tempest contending that the loss ought to fall on Fitzgerald, as the property in the horse had passed to him, Fitzgerald maintaining the opposite view. The latter was the view adopted by the judges, as they considered there had been no such receipt as would satisfy the Statute of Frauds. While the Statute of Frauds inculcates on contracting parties the importance and desirability of writing, it at the same time permits them to bind themselves if certain other circumstances are present. One of these is an " acceptance and actual receipt " by the purchaser. The words of the statute have been so construed that they are satisfied very often by a constructive acceptance. In Elmore v. Stone, for instance, the seller changes his character, and becomes a bailee for the purchaser, losing, of course, his right of lien. Similarly, if a man sold his horse, but asked the purchaser if he would be kind enough to let him keep it a few days longer, and the purchaser Marvin v. consented, there would be sufficient acceptance. Tempest v. Fitzgerald Wallis, ma y seelllj a t first sight, to trench rather closely on Elmore v. Stone, but in the former case the bargain was one for ready money, and the vendor's lien, therefore, would continue till the price was paid ; and LEADING CASES MADE EASY. there can lie no acceptance by the purchaser as long as the vendor's lien continues. In Elmore v. Stone, by consenting to act in a new capacity, the vendor relinquished his lien. As to the effect of the "acceptance" required by the Statute, it may be mentioned that it is not to preclude a party from disputing that the contract has been properly carried out, hut simply to prevent him from objecting that the contract was not in writing. 29 Morton v. Tibbett, L5Q. B.; and Qrimoldby y. Wells, L. R. 10 C. P. Goods not yet in Existence. LEE r. GRIFFIN. [1 B. & S.] This was an action against an executor to recover the price of two sets of teeth made for the late Mrs. Penson, his testatrix. The worthy old lady had died before the teeth could be affixed to her jaw, and the executor was already supplied by nature with an efficient array. The price of the teeth being £21, and there being no writing, the 17th section of the Statute of Frauds prevented the dentist from recovering for goods sold and delivered, but it was suggested that the count for work, labour, and materials might be sustained. This view, however, was not adopted, the rule being stated to be that if the con- tract be such that ivhen carried out it would result in the sale of a chattel, the party cannot sue for work and labour. [18.] Goods not in existence at the time of the contract, but which were to be made and delivered at a future time, were held not to be within the 17th section of the Statute of Frauds. Lord Tenterden's Act, 9 Geo. IV. however, brought them within the section, and contracts relating to c - 14 > & *• such goods must now be in writing, just as much as those relating to goods already in existence. The great question, when such a contract has not been reduced to writing, is — Is this a contract for the sale of goods so as to be within the statute, or is it a contract for work and 30 LEADING CASES MADE EASY. labour, so that writing is unnecessary 1 On this constantly arising question Lee v. Griffin is an important authority, and must be care- 1 H. & N. fully distinguished from Clay v. Yates, where it was held that an agreement by a printer to print a book, altho' it involved finding materials, was not within the statute, and need not be in writing. At one time it was thought that the test to be applied to such cases was whether the value of the work exceeded the value of the materials ; but that rule seems to have now yielded to that laid down See, how- in Lee v> Qrifffo, ever, Add. ■" Contr., 7th ed., p. 656. Contract contained in several Documents, &c. [19.] BOYDELL v. DRUMMOND. [11 East.] Towards the end of the last century Boydell & Co., a great publishing firm in London, determined, with a view- to the encouragement of literature and their own remune- ration, to bring out a series of engravings of scenes in Shak- speare's plays ; and so they issued a prospectus and began vigorously canvassing for subscribers. There were to be 72 engravings altogether, four of which were to constitute a number, and at least one number was to be published every year. " The proprietors, however, were confident that they should be able to produce two numbers in the course of every year." The price of each number was three guineas. The student, whose forte is arithmetic, will thus perceive that the whole series would not be completed for nine years, and that the total cost would be 54 guineas. Amongst other enthusiastic, if not very appreciative, admirers of William the Great was a Mr. Drummond. He agreed to become a subscriber, and signed his name in a book bearing the title, " Shakspeare Subscribers, their Sig- natures." He even put his admiration of our dramatist to the still severer test of accepting and actually paying for LEADING CASES MADE EASY. \\\ one or two of the numbers. But his interest soon began to languish, and at last it became necessary to sue him for not accepting the remainder of the engravings. In defence, Mr. Drummond availed himself of the Statute of Frauds. He said that the agreement he had entered into was one which, by its terms, was incapable of performance within a year from the making, and therefore, to bind him, should have been in writing. The publishers replied tothis — lstly. That, Mr. Drummond having taken and paid for several numbers, there was sufficient " performance " to satisfy the statute, if not Mr. Drummond's conscience. 2ndly. That, after all, the agreement was in writing, for the book in which Mr. Drummond had signed his name, coupled with the publishers' prospectus, constituted a suffi- cient memorandum of agreement. It was held, however, — scarcely to the execution of justice and the maintenance of truth, — lstly. That part performance would not do, for the word "performance " could not mean anything less than com- pletion. 2ndly. That, there being no means of connecting the Shakspeare subscribers' book with the prospectus, without oral evidence — no reference being made by the one to the other — they did not together constitute a sufficient memo- randum. " If,'' said Le Blanc, J., " there had been anything in that book which had referred to the particular prospectus, that would have been sufficient; if the title to the book had been the same with that of the prospectus, it might, perhaps, have done; but as the signature now stands without reference of any sort to the prospectus, there was nothing to prevent the plaintiff from substituting any prospectus, and saying that it was the prospectus exhibited in his shop at the time to which the signature related : the case, therefore, falls directly within this branch of the Statute of Frauds." 32 LEADING CASES MADE EASY. So Drummond beat the publishers, and lived happily to the end of his days. This case is the leading authority for the position that, tho' a con- tract may be collected from several documents, those documents must be so connected in sense that oral evidence is unnecessary to show their connection — in other words, they must be left to speak for them- selves. " The statute," said Cran worth, C, in an important case, " is not complied with unless the whole contract is either embodied in some writing signed by the party, or in some paper referred to in a signed document, and capable of being identified by means of the description of it contained in the signed paper. Thus, a contract to grant a lease on certain specified terms is of course good. So, too, even if the terms are not specified in the written contract, yet if the written contract is to grant a lease on the terms of the lease or written agree- ment under which the tenant now holds the same, or on the same terms as are contained in some other designated paper, then the terms of the statute are complied with. The two writings in the case I have put become one writing. Parol evidence is, in such a case, not re- sorted to for the purpose of showing what the terms of the contract are, but only in order to show what the writing is which is referred to. When that fact, which, it is to be observed, is a fact collateral to the contract, is established by parol evidence, the contract itself is Ridgwayv. wholly in writing, signed by the party." „ t^m"' ^ n a ver y recen t case, in which a person had broken a contract to & G. sell some land at Hammersmith to a builder, it was held that an imperfect and irregular document, purporting to be an agreement by the builder to purchase and pay a deposit, was sufficiently connected with a receipt for the deposit which the seller had signed, to form a Long v. binding agreement. 4 -, l -f ? 'm Boydell v. Drummond should also be remembered by the student N. S. as an illustration of the clause in the 4th section of the Statute of Frauds, which says that an " agreement that is not to be performed within the space of one year from the making thereof " must be in writing. On the effect of part performance, the student should refer to the equity leading case of Lester v. Foxcroft. Courts of equity have long been in the habit, when the nature of the case was such as seemed to require equitable interference, of decreeing specific performance of agreements void at law by reason of the 4th section of the Statute of Frauds. LEADING CASES MADE EASY. 33 Written Contracts and Oral Evidence. GOSS v. NUGENT. [20.] [5 B. & Ad.] Lord Nugent agreed to bay of Mr. Goss several lots of land for £450, and paid a deposit of £80, Mr. Goss under- taking to make a good title to all the lots. This agreement was, as the Statute of Frauds requires all agreements relating to land to be. in writing. Soon after- wards Mr. Goss found that as to one of the lots he could not make a good title ; and of course Lord Nugent would then have been perfectly justified in crying off the bargain. Instead of doing so, he agreed orally to waive the necessity of a good title being made as to that lot. Afterwards, however, his lordship seems to have altered his opinion as to the desirability of becoming the owner of the land, and he declined to pay the remainder of the pur- chase-money, relying on the objection to the title. In answer to that, Mr. Goss wished to prove that after Lord Nugent knew about the defect of the title he agreed to waive it. This, however, was not allowed. So Lord Nugent recovered his deposit, and got the better of Mr. Goss. The rule that a written contract cannot be varied by parol is subject to one or two exceptions. Supposing the contract to be one which, tho' it is in writing, need not have been, it may be varied by parol evidence of what took place between the parties aft&r the date of the agreement. And tho' the general rule is that parol evidence of what took place between the parties previously to or contemporaneously with the written agreement is quite inadmissible, such evidence may, nevertheless, be given to show that the execution of the written agreement was conditional on some event happening ; in tact, that a document purporting to be a final and absolute contract purports to be what it is not. In a case decided about 20 years ago it appeared Pym v. that the defendants had orally agreed to buy from the plaintiff "thr e Campbell, D 34 LEADING CASES MADE EASY. E. & B. eighth parts (if the benefits to accrue from an invention of the wif- plaintiff's." It was agreed that this purchase was only to be made if Littell an engineer, named Abemethie, approved of the invention. They 31 L. J. then made a written memorandum of the agreement without putting c * *• down the condition about Mr. Abernethie's approval. Mr. Aber- nerthie did not approve ; and the question was whether the con- dition could be proved by oral evidence. In giving judgment that the evidence was admissible, Erie, C.J., said, "The point made is that this is a written agreement absolute on the face of it, and that evidence was admitted to show it was conditional; and, if that had "been so, it would have been wrong. But I am of opinion that the evidence showed that in fact there was never any agreement at all. . . . The distinction in point of law is that evidence to vary the terms of an agreement in writing is not admissible, but evidence to shew that there is not an agreement at all is admissible." An important distinction as to when oral evidence can be given to affect a written instrument, and when it cannot, is between a latent and a patent ambiguity. A latent ambiguity is not apparent on the face of the instrument. The document seems to the stranger reading it to be plain and simple enough ; but, really, there are two states of fact equally answering to the instrument. To correct such an ambiguity, and show what was intended, parol evidence is admissible. But parol evidence cannot be given to correct a patent ambiguity. Thus, in a case where a bill of exchange had been drawn for " two hundred pounds,' 5 but the figures at the top were "£245," and the stamp corresponded to the higher amount, evidence was not Saunder- admitted to show that £245 was really the sum intended. S p- V ,' k There are other cases in which parol evidence may be given ; for Bins.N.O. example, to show the situation of the parties, to prove fraud, to bring in usage of trade, to identify the subject-matter, to introduce a principal not named in the contract, or to prove an agreement on some collateral matter. An apparent exception to the rule exists in the case of a contract made partly in writing and partly by parol. The reason why oral evidence is admissible here is that there is really no complete contract in writing between the parties. A cattle dealer a few years ago wanted to send some cattle from Guildford to the Islington market. They told him at Guildford Station that the beasts would be duly forwarded to King's Cross ; but they inveigled him into the signing of a consignment note by which the cattle were directed to be taken to the Nine Elms Station, which of course was not so far as the cattle dealer expected them to go. At this intermediate station they remained, and suffered injury from not being fed properly, &c. The company's point was that the consignment note, was conclusive evidence of the terms of the contract, and, therefore, that they had never undertaken to carry LEADING CASES MADE EASY. 35 further than the Nine Elms Station. But for the cattle dealer it was successfully contended that the consignment note did not constitute a complete contract, and that parol evidence could he given of the con- versation that had taken place between the plaintiff and the company's servants before the consignment note was signed. Mafpas v Tho' parol evidence may rarely he given to vary a written contract, *•' ■ ' '/ " it may generally he given to rescind it altogether. Ami the better |,. |; [' opinion is that this is so even where the contract is one of those C. P. which are compelled by statute to be in writing. Written Contracts and Evidence of Usage. WIGGLESWORTH v. DALLISON. [1 Doug. & S. L. C] Wio-glesworth was, as his bucolic name alone misrlit show, a farmer. By lease dated March 2nd, 1753, one of the Dallison family let him have a field in Lincolnshire for 21 years. In the last year of his tenancy, tho' he knew that he had to give up the land almost immediately, he sowed his field with corn. In doing what might seem at first sight a rash and improvident act, Mr. Wigglesworth was relying on a certain local custom, which entitled an outgoing tenant of lands to his way-going crop, that is, to the corn left standing and growing at the expiration of the lease. Dallison's answer to this claim was that, if any such custom existed at all, it had no application to the present case where the terms between landlord and tenant had been carefully drawn up in a lease by deed, and no mention made therein of any custom. The court, how- ever, decided in favour of the custom, Lord Mansfield remarking that, while it was just and reasonable and for the benefit of agriculture, it did not alter or contradict the agreement in the lease, but only superadded a right. d2 L2i. 36 LEADING CASKS MADE EASY. Parol evidence of the custom of a particular place or trade cannot be given to vary a written contract. If the terms of the contract are perfectly clear and exhaustive (and whether they are so is for the See the re- court, not lor the jury, to decide), the maxim expressum facit cessare cent case of i ac n mn ] ias { u \\ application. In one case it appeared that by the Shand ' custom of the country the outgoing tenant was entitled to an 2 App.Ca., allowance for foldage from the incoming tenant. This, therefore, if on tins tnc j eage nac i i Jeeil s ilent on the subject, would have had to he paid, point. . , ' . But the lease was not silent. It particularly specified the payments which were to be made by the incoming to the outgoing tenant, and amongst them it did not mention any 2^yment in respect of foldage. It was held, therefore, that the terms of the lease were perfectly clear, Webb v. and excluded the custom. 2 pT'ai'i ^°> to0 ' m mercant il e contracts. If you insure a ship and cargo for a voyage, and the terms of the policy are that " the insurance on the ship shall continue till she is moored 24 hours, and on the goods till safely landed," and your ship reaches her haven, and has been moored the 24 hours, and then afterwards, and before being landed, the goods are lost, the insurance people will not he allowed to cheat you by showing a custom that the risk on the goods as well as on the ship expires in 24 hours : you expressly stipulated that ship and cargo Parkinson should stand on different footings. Similarly, when a gentleman in v ( - oil icy Park Ins' ^ ie pig- trade so ^ what he warranted to be " prime singed bacon," 7th ed., but which proved to be neither palatable nor fragrant, he was not 4/0. permitted to turn round and produce a convenient custom in his trade to the effect that "prime singed bacon" is prime singed bacon Yates v. none the less because it happens to be very much tainted. Py^i But tho' a written contract cannot be varied by evidence of the 6 launt. . . " . custom ot a particular trade or place, it may be explained thereby, and it may have incidents annexed. 1. It may be " explained." Evidence has been admitted to show that the Gulf of Finland, tho' not geographically so, is always con- Uhde v. sidered by merchants as part of the Baltic, that "good barley" and Walters, u fine b ar i ey » are different things, that 1000 rabbits means 1200, and n j . ' that, when a young lady was engaged as an actress for " three years," son v. Bow- the three years meant only the theatrical season of those years. her, 5 M. 2. Incidents may be annexed. The leading case is an excellent illustration here. So is Hmnfrey v. Dale, where it was held that a Wilson ' P erson who had professed to contract as agent might by custom be 3 B. & Ad. treated as principal. The principle on which incidents are allowed to Grant v. be annexed to written contracts is that the parties " did not mean to lMvr vfw ex P ress * n writing the whole of the contract by which they intended E. B.&E.'- t° be bound," but to contract with reference to certain known usages, and see Except when the mode of dealing is that of a particular house, such Hutrhin- as rj. y>ttmi v. To make a particular custom good it must be — lu ( ^'j,;. 1. immemorial, and Bay- 2. continued, ! 'f c v - Batter- .5. peaceable, „, lW/l> } 4. reasonable, Ex. 5. certain, 6. compulsory, 7. not inconsistent. Reasonableness is a question of law for the court. In Hall v. Nottingham it was held that a custom for the inhabitants of a parish 1 Ex. Div. to enter on a person's field, put up a maypole, dance, play at kiss in the ring, and otherwise enjoy themselves, at any times in the year, in defiance of the proprietor, was good. But in a still more recent case it was held that a custom that an outgoing tenant should look, not to the landlord, but to the incoming tenant, for payment for seeds, tillages, &c, could not be supported, as being "unreasonable, un- certain, and prejudicial to the interests, both of landlords and tenants." Bradburn v. Fiildf, 3 C. 1'.' D. Bailments. COGGS v. BERNARD. [22.] [2 Ld. Raym. & S. L. C] Coggs wanted several hogsheads of brandy to be removed from one London cellar to another. Instead of employing a regular porter to do the job, he accepted the gratuitous services of his friend Bernard, who undertook to effect the removal safely and securely. But the amateur did his work so clumsily that one of the casks was staved, and the street streamed with good sound brandy in a way that (unless he was afflicted with Good Templarism) would have done Dick Whittington's heart good to sec. Coggs, how- 38 LEADING CASES MADE EASY. ever, was not pleased. He was an austere man ; and, as he successfully maintained an action against Bernard, pro- bably that gentleman never again volunteered rash acts of friendship. [23.] WILSON v. BRETT. [11 M. &W.] Mr. Wilson had a horse to dispose of, and in one Mr. Margetson believed himself to have an intending purchaser. He knew Brett to be an excellent rider, and one who could show off the points of a horse to advantage. So he asked him, as a great favour, to ride the horse over to Peckham, and show it to Mr. Margetson. Brett, with his usual readiness to oblige his friends, set off accordingly, and found Margetson indulging in the innocent pastime of cricket, undeterred by the fact that the turf was exceed- ingly wet and slippery. The cricketers left their game, and admired the horse. But unfortunately, while Brett was endeavouring to witch them with his noble horseman- ship, he let the horse down, and disastrous was the fall thereof. This was an action against him by the owner of the horse. There was no doubt Brett had been to a certain extent negligent. He had not displayed that skill which might have been fairly expected from so brilliant a rider. But he had been riding the horse, not as a hired jockey, but out of love for his friend ; and he contended that, being therefore nothing more than a gratuitous bailee of the chattel entrusted to him, he could not be made liable for anything short of, what was not imputed to him, gross negligence. This plausible contention did not prevail, for the judges held that a gratuitous bailee tuho has skill must use it. Coggs v. Bernard is the great case on bailments. A bailment is a delivery of a thing in trust for some special LEADING CASES MADE EASY. 39 purpose; the person who delivers it being called the bailor, and the person to whom it is delivered the bailee. Lord Holt divides bailments into six kinds : — depositv/m } manda- tum, commodatum, vadium, locatio m, and loeatio operis faciendi. But it is better to begin with this classification of bailments, 1. For the benefit of the bailor alone, 2. For the benefit of the bailee alone, 3. For the mutual benefit of bailor and bailee, and to bring depositum and co. under these heads. 1. Under the first head come depositum and mandatwm,. Depositum — the delivery of goods to be taken care of for th< bailor without the bailee receiving anything for his trouble : e.g., I ask my friend Brown to hold my watch while I am playing cricket. The depositary is responsible only for gross negligence. If my Mend takes a moderate amount of care of my watch, he will not be obliged to give me a new one if it is stolen, or lost, or broken. But, on the other hand, if the depositary has been grossly negligent he cannot defend himself by showing that he has lost his own things with the bailor's. A gentleman once " deposited " some money with a coffee-house keeper. The next morning the gentleman asked for it ; but the coffeediouse keeper said he had left it, with his own money, in the public room down stairs, and it had all disappeared. The coffee- house keeper was clearly guilty of gross negligence in leaving money in a place to which the most inexperienced thief had easy access, and the fact that his own money had gone too only made him a greater donkey still. Door/mm The bailor must exercise a certain amount of vigilance in the y- _/f n ^ ir i^' selection of his bailee. If I were to entrust my watch to an idiot, or a little girl, no amount of gross negligence on their part would give me a remedy against them. I must bear the consequences of my folly. As a rule, the depositary may not make use of the thing deposited. But, if no harm would come thereby, he may. My friend of the cricket-field might draw the dial from his pocket occasionally to tell the time ; or if I were to " deposit'' my grey mare with him, he not only may but ought to give her proper exercise. It is not at present settled how far a depositary may add to his responsibility by inserting special terms in his promise to his bailor. If, however, the bailee has spontaneously offered to take care oi the goods, he is responsible not merely for gross, but for ordinary negligence. Mandatum — the delivery of goods to be done something with foi the bailor without the bailee receiving anything for his trouble : e.g., I ask my friend Jones to post a letter for me. As in depositum, (and mandatum is only a kind of superior 2 Ad. & E. 40 LEADING CASES MADE EASY. deposition,) the bailee is liable for gross negligence only. The con- tract between Mr. Coggs and Mr. Bernard was one of mandatuni, tho' it is to be observed that Mr. Bernard laid additional respon- sibility on his shoulders by undertaking to effect the removal " safely." The rule, however, that a mandatory ia responsible for gross negligence only is to some extent qualified by the maxim spondes peritiam artis. It is stated in the text that gross negligence was not imputed to Mr. Brett. This is only literally true. What is ordinary negligence in one man is gross negligence in another ; and the omission by a person endowed with skill to make use of that skill is really nothing short of gross negligence. In this view Wilson v. Brett is no exception to the rule that a gratuitous bailee is responsible only for gross negligence : Brett was constructively guilty of gross negligence. To take a further illustration of spondes peritiam artis, if a young doctor, out of charity, attends a poor person, and makes a hash of the case and his patient, that young doctor is liable to an action. Shiells v. It is mandatum, but his position presumes skill. Black- Qf gratuitous bailments it is to be remarked that no action can 1 H Bl ^ e brought on a promise to enter on one of them : for for such promise there is no consideration. But if the man ascends from words to deeds, and actually sets about the business, he then becomes responsible for gross negligence. If a statement of claim set forth that the defendant agreed to repair a house, and didn't do it, there would be no ground of action apparent : but if it said that the defendant agreed to repair a house, and began to do it, and did it badly, there would be plenty. In the one case there would be no consideration for the defendant's promise ; in the other the trust reposed in him by the bailor, who allowed him to enter on Elsce v. the work, would be a sufficient consideration. Gatward, 2. Under this head (for the benefit of the bailee alone) comes ' commodatum. Commodatum — the lending of a thing to be returned just as it is : e.g., I lend my grey mare to Jones to ride to the meet on ; I don't expect him to return me another grey mare, but the same identical old 'oss that I lend him. (Note. — If I expected a borrower to return me not the identical things but similar, e.g., if I lend him half a dozen postage stamps, or five shillings, it would not be commodatum but mutuum.) Commodatum being a contract in which the only person benefited is the bailee, that gentleman is responsible even for slight negligence ; the more so as by the fact of borrowing he may be taken to have represented himself to the lender as a fit and proper person to be entrusted with a valuable article. LEADING CASES MADE EASY. I] The commodatory must strictly pursue the terms of the loan. If I borrow a horse or a book to ride or to read myself, I have no business to allow anybody else to ride or read. If the horse is lent Bringloe v for the highway, I must not take it along dangerous bridle paths. The ' ".'".' bailee must redeliver the chattel, when the time has expired, just as it was, reasonable wear and tear excepted. He is not responsible, however, if the article perishes by inevitable accident, or by its being stolen from biro without any fault of his. The bailor must disclose defects of which lie is aware, as for instance that the gun he lends his friend Brown is more likely than not to burst and blow his hand off. " Would it not be monstrous," said Coleridge, J., in Blakemore v. Bristol and Exeter Railway Com- pany, " to hold that if the owner of a horse, knowing it to be vicious 8 E. & B. and unmanageable, should lend it to one who is ignorant of its bad qualities, and conceal them from him ; and the rider, using ordinary care and skill, is thrown from it and injured, he should not be responsible ?" The reader will echo, " monstrous !" The commodatory has no lien on the thing lent for antecedent debts due to him ; nor, of course, can he keep it till the bailor pays the necessary expenses he has been put to in the keeping of it. 3. Under the last head (for the mutual benefit of bailor and bailee) come vadium, locatio rei, and locatio operis. (1). Vadium (otherwise known as pujnori acceptum) — the contract of pawn. We will hope the student is not frequently the bailor here. The benefit being mutual, the degree of diligence required of the bailee is " ordinary." If in spite of due diligence the chattel is lost while in the pawnee's keeping, he may still sue the pawnor for the amount of his debt. The effect of the contract of pawn is not (like that of a mortgage Donald v. of personalty) to pass the property in the chattel to the bailee ; nor, Suckling, on the other hand, is it (like that of a lien) merely to give him a q' g* hostage, but it gives him such a special property in the thing pawned as enables him, if the pawnor makes default, to sell it and pay him- self; the surplus being of course handed back to the pawnor. As a rule, the pawnee may not make use of the thing bailed to him. If, however, it is an article which cannot be the worse for the user, — jewellery, for instance, — he may ; but in such a case he would be responsible for the loss, however it happened. Moreover, if the pawn be of such a nature that the pawnee is put to expense to keep it, e.g., if it be a horse or a cow, the pawnee may make use of it, — riding the horse, or milking the cow, — as a recompense for the cost of main- tenance. Such are some of the common law rules as to vadium ; and they apply now to cases where the sum lent exceeds £10. But when the 6um lent by way of vadium is less than .£10, the Pawnbrokers Act, 42 LEADING CASES MADE EASY. 35 & 36 1872, applies. That Act provides that every pledge must be redeemed Vict, c 93. within twelve months (with seven days' grace). If it is not redeemed within twelve months, what becomes of it depends on whether the loan was for more or less than 10s. If it was for 10s. or less, it then becomes the pawnbroker's absolute property ; if it was for more, he may sell it, but must hand over the surplus, after satisfaction of his debt and interest, to the pawnor. The pawnbroker is now absolutely liable for loss by fire, and should protect himself by insuring. He is liable, too, for any injury done to the thing pawned while in his keeping. (2). Locatio rei — the everyday contract of the hiring of goods. This being a mutual benefit bailment the degree of negligence for which the hirer is answerable is " ordinary." The hirer of a horse once physicked it himself, instead of calling in a " vet." He pre- scribed " a stimulating dose of opium and ginger," and of course the animal " soon after taking it died in great agony." On the ground that the hirer had not exercised " that degree of care which might be expected from a prudent man towards his own horse " he was held Dcane v. liable to the owner of the horse. „ € .°, c ' (3). Locatio operis faciendi — when the bailee is to bestow labour on or about the thing bailed and to be paid for such labour. Generally speakiug, the rule as to diligence is the same as in vadium and locatio rei; but when the bailee is a person exercising a public employment, e.g., a carrier or an innkeeper, he is required to exert much greater circumspection. In fact a common carrier is an insurer, being responsible for loss by any cause except the act of God and the king's enemies. An instructive case as to the liability of a bailee of this class (not being an innkeeper or a carrier) is Searle v. L. R. 9 Laverich, where a man had entrusted his carriage to the care of a H- *»• livery-stable keeper. It was held that the latter was not responsible for damage done to the carriage by the falling of a newly-erected shed through the negbgence of the contractor who had erected it, the livery-stable keeper having been properly careful in the selection of such contractor. As to the right to maintain trover, it may be remarked that in vadium and locatio rei it is only the bailee who can do so ; for in either of those contracts he can exclude the bailor from the posses- sion. But in the other kinds of bailment either bailor or bailee may sue, tho' the recovery of damages by either deprives the other of his right of action. The terms "gross negligence," "ordinary negligence," &c, have been freely used in speaking of these bailments. Many eminent lawyers, however, think that there are really no degrees of negligence, and that, as Eolfe, B. (afterwards Lord Cranworth), said in Wilson v. Brett, negligence and gross negligence are " the same thing, with the addition of a vituperative epithet." LEADING CASES MADE EASY. \\\ Liability of Innkeepers. CALYE'S CASE. [24.] [8 Coke & S. L. C.] A lated traveller gained his timely inn, and dismounting from his fiery steed bade mine host send it out to pasture. The landlord, accordingly, sent it into a field ; but, when its master wished to resume his journey, it was nowhere to be found. The owner now tried to make out that the landlord was responsible. But it was held that he was not, for the horse had been sent into the field at the express desire of the guest. The liability of innkeepers, like that of common carriers, probably has its origin in their readiness to collude with the knights of the road and the other ornaments of the days when the age of chivalry had not yielded to the age of sophisters, calculators, and muffs. That liability was at common law very great. They were not indeed responsible for losses arising by extraordinary commotions of nature or by the pillaging of invaders, — in technical language, by the act of God or the king's enemies, — but they were responsible for all other losses, and it did not make the slightest difference whether they had been negligent or not. This, however, was not more than a very strong presumption. If the landlord could show clearly that it was by the guest's own fault that the loss arose, he rebutted the presump- tion of liability. But the loss was prima facie evidence of liability. In 1863, however, — when the race of highwaymen had not for some time been displaying their former industry, — the liability of inn- keepers was greatly restricted, and by the Act then passed they are 26 & 27 never bound to pay more than £30, except in the following cases : — Vict. c. 41. 1. Where the article which the landlord has lost is " a horse, or other live animal, or any gear appertaining thereto, or any carriage." 2. Where it can be shown that he did not take proper care of the article. (" Wilful act, default, or neglect" are the words.) 3. Where the article is expressly deposited with him for safe custody. But mine host is not to be entitled to the benefit of this Act unless he posts up a printed copy of sect. 1 in a conspicuous part of his entrance-hall, and he had better take care not to omit material parte of the section, or play other pranks with the Act, for the courts 44 LEADING CASES MADE EASY. have shown clearly that they do not intend to allow innkeepers to trifle with it. In a recent case it appeared that the landlord of the " Old Ship" at Brighton had posted up what purported to he a copy of sect. 1. But through some mistake the word " act " was left out, so that the sentence had " wilful default or neglect" instead of "wilful act, default, or neglect." A gentleman staying at the hotel had his watch and things stolen during the night, and went to law with the landlord to recover their value. The innkeeper paid ,£30 into court, hut said that the Act protected him against any further claim. But it was held that, as he had not posted up a correct Spice v. copy of sect. 1, he was not entitled to the benefit of the Act. o t?° W tv Supposing the innkeeper not to have complied with the condi- ' tions of this Act, his liability remains the same as at common law. In that event almost his only defence is (as above stated) to show that his guest has been negligent. He must show it, too, very plainly. A gentleman some years ago (it was before 1863) slept one night at the Great Northern Hotel at King's Cross. Before getting into bed he divested himself of his watch and other valuables, and placed them on a slab by his pillow. But he "forgot to bar the door, 0," and in the morning they were gone. There was no negbgence on the part of the hotel people. They had put up notices about the frequency of robberies in good hotels, and recommending travellers to lock their doors. But this diligence stood them in no stead, for Morgan v. they were held liable to a man who forgot to lock his door. In a Barney, subsequent and very similar case, too, it was said by one of the ' judges — " I agree that there is no obligation on a guest at an inn to lock his bed-room door. Tho' it is a precaution which a prudent man would take, I am far from saying that the omission to do so Oppenheim alone would relieve the innkeeper from his ordinary responsibility." v. White if a guest after taking his ease in his inn refuses to pay the Co L R reckoning, the landlord has a lien on the luggage and belongings 6 C. P. which he has brought into the inn, whether they are the man's own 41 & 42 or not, and if the bill is not settled in six weeks, may sell them. Vict. c. 38. j> u t he may not detain the person of his guest. It was said in Calye's case that if the landlord had sent the horse into the field without his guest's authority he would have been responsible. Such a case has actually occurred. A Bewdley inn- keeper whose coach-house was full, — it being fair day, — put a guest's gig into the adjoining street without saying a word to him on the subject. The gig was stolen, and the owner sued the innkeeper, who was held liable on the ground that he had chosen to treat the street Jones v. as part of his inn. T^ er ' „ An inn has been defined as " a house where the traveller is furnished with everything he has occasion for while on his way." A coffee-house is not such a place ; nor is a boarding-house ; and it I.EADIXG CASTS MADE EASY. has Lately boon decided, in a case in which a man had insisted on entering accompanied by an offensive dog, that a refreshment bar attached to an inn is not. Any man who is ready to pay for his I'- v. accommodation, and conducts himself properly, can claim admission .,',', ,.' ,. into an inn, if there is room, at any hour of the day or night ; and, » « if the landlord refuses it, an action lies against him, or he can be Knight indicted. 8MJ \\\, and R. v. Tvens, 7 < '. & P. "Proper Vice." BLOWER v. GREAT WESTERN RAILWAY CO. [25.] [L. R. 7 C. P.] Mr. Blower had a bullock which he wanted to send by railway from a small station near Monmouth to Northamp- ton. The beast was duly loaded to Mr. Blower's satisfac- tion in one of the Great Western Railway Company's trucks, and might have been as much expected as hoped to reach its destination right side up. But however much the arrangements were to the satisfaction of Mr. Blower, they do not seem to have met the approval of the bullock, which in the course of the journey, by the exercise of unsuspected agility, succeeded in escaping and getting killed on the line. Admitting that the company had not been at all negligent in the carrying of the animal, were they not liable as common carriers ? No ; for the disaster was due to the natural playfulness, or, in sterner language, the " inherent vice " of the subject of bailment. The effect of this case is practically to introduce a third exception to the rule that common carriers are insurers. They are to be excused, not only when the loss has been occasioned by the act of God or by Her Majesty's enemies, but also if it has happened by the inherent defect of the thing carried. Two or three years ago the defendant, a common carrier by sea from London to Aberdeen, received from the plaintiff a mare to be carried to Aberdeen for hire. On the voyage the mare was injured so badly that she died, partly 4G LEADING CASES MADE EASY. from the exceedingly rough weather, and partly from her own fright and struggling. It was held that under these circumstances the Nugent v. defendant was not liahle. In the case referred to the expression " act Smith, f q 0( j )> waa thoroughly discussed . " The principle," said Mellish, L. J., C.'p.'d " seems to me to be that a carrier does not insure against acts of nature, and does not insure against defects in the thing carried itself, hut in order to make out a defence the carrier must be able to prove that either cause taken separately, or both taken together, formed the sole and direct and irresistible cause of the loss. I think, however, that, in order to prove that the cause of the loss was irresistible, it is not necessary to prove that it was absolutely impossible for the carrier to prevent it, but that it is sufficent to prove that by no reasonable precaution under the circumstances could it have been prevented." It may be remarked here that a person who delivers a dangerous substance to a common carrier, without giving him any information about it, is responsible for all the evil consecpiences which may arise Farrant v. therefrom. It has been expressly provided by Act of Parliament Barnes, 11 ^hat a carrier is not bound to receive such substances. C.B., N.S. 29 &30 Vict. c. 69, s. 6. Special Contracts by Carriers. [26] PEEK v. NORTH STAFFORDSHIRE RAILWAY CO. [10 H. L. C] Mr. Peek, some score of years ago, lived at the interest- ing town of Stoke-upon-Trent. He wanted to send some marble chimney-pieces from there to London, and to get it done as cheaply as possible. With that view, he opened negotiations with an agent of the North Staffordshire Eailway Company. The agent said the company would not be responsible for damage to the chimney-pieces unless the value was declared, and they were insured at the rate of 10 per cent, on the declared value. This rate Peek considered too high, and finally he sent a note to the agent requesting him to send the chimney-pieces " not insured." The marbles received injury on the journey through LEADING CASES MADE EASY. 47 exposure to rain and wet, and Peek now sought to make the company responsible for the whole of the damage done. The two chief questions were — 1. Whether the condition was "just and reasonable." 2. Whether there was a "special contract signed;" and both these questions were decided in the plaintiff's favour. Before 1830 common carriers were accustomed to get rid of their common law liability as insurers of the goods committed to them by posting up notices. If it could lie proved that the notice had come to the knowledge of the customer, it was presumed that he had assented to its terms, and the carrier was only liable in the case of wilful misfeasance or gross negligence. The efficacy of these public notices was destroyed in 1830 by the Land Carriers Act; but the n Geo. Act reserved the carrier's right to make a special contract with his I v - & 1 customer. The courts, however, were in manv instances very hard ™ "' " J coo. on the customer, holding, for instance, that a notice put on a receipt given to a person delivering goods to be carried amounted to a special contract, and in 1854 further legislation was deemed to be necessary. In that year was passed the Railway and Canal Traffic Act, which 17 & 18 still permits the making of special contracts, but provides that no one Vict. c. 31. shall be bound by any such contract unless he has signed it, and the condition imposed on him is "just and reasonable." g ec t_ 7, The question whether a condition is "just and reasonable" is one for the judge at the trial, subject of course to the review of the divisional and higher courts. Amongst conditions that have been held to be just and reasonable may be mentioned one that a company shall not be liable for loss of market or other delay arising from detention, or another placing the carriage of such White \. perishable goods as fish or fruit under special regulations. Of un- ''• "'. A'//. just and unreasonable conditions the condition in the leading case j>"'\ r ^' may be taken as a sample. So may a condition that a company will jUill v not be accountable for the loss, detention, or damage of any package South insufficiently or improperly packed. The question whether any /'"'""'''.'/■ particular condition is reasonable or not must, of course, usually $ ,'< depend on the special circumstances of the case. Svmona v The Regulation of Railways Act, 1868, extends sect. 7 of the G. IV. Ry, Railway and Canal Traffic Act to the traffic carried on by railway X, '!, companies on the sea. A case on this subjectwith which the student ., ' '.,., should make himself acquainted is Cohen v. South East rn Railway Viet.c.199 Co., where a lady coming from the continent lost her portmanteau s - 16. through the clumsiness of the defendants' servants, who let it fall - ^ x - * )iv - into the sea while taking it from the boat to the train. 48 LEADING CASES MADE EASY. Land Carriers Act. [27.] MORRITT v. NORTH EASTERN RAILWAY CO. [1 Q. B. D.] Mr. Morritt was a passenger by the defendants' railway from York to Darlington, and had with him two water- colour drawings tied by a rope face to face. They were above the value of £10, but he made no declaration of their value. He handed them to the guard, asking him to take care of them, and saw them labelled " Darlington." When the train reached Darlington, Morritt got out, took a fresh ticket to Barnard Castle, and told the porter to see that the drawings were taken out and put into the Barnard Castle train. The drawings, however, were not taken out, but were carried on to Durham, and when Morritt saw them again they had been greatly injured, " holes having been made in them." The question was, whether the Carriers Act applied to the case of goods negligently carried beyond the point of destination so as to protect the railway company, and it was held that it did. " The question to be determined by us," said Mellish, L.J., " is whether, if goods, such as pictures, within the protection of the Carriers Act, are handed to a carrier, and then by the negligence of the carrier are carried beyond the point of destination and injured, this is an injury within the meaning of the Act ? I think it is. If not, the Carriers Act would really be no protection at all ; for in the majority of cases of loss of or injury to goods, the fact is that the goods have not arrived at the station for which they were destined, but have been put out short of it or carried beyond it, and if the carrier is liable in such cases the protection of the Act would be reduced to nothing." LEADING CASES MADE EAS\ \\- Sect. 1 of the Carriers Act provides that "no common carrier by 11 Geo. IV. land for hire shall be liable for the loss of or injury to . . . ,„ ~J paintings, engravings, pictures, .... contained in any parcel which shall have been delivered, either to be carried for hire or to accompany the person 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 exceed .£10, unless at the time of the delivery thereof .... the value and nature of such articles shall have been declared by the person sending or delivering the same, and the increased charge, as hereinafter mentioned, or an engagement to pay the same, be accepted by the person receiving such parcel or package." It had been already decided that the Act protected the carrier from liability even for gross negligence, but it Binton v. was urged in the leading case that it was no protection where the q g goods were being carried by mistake, and not as part of the intended journey. This view, however, as we have seen, was not adopted. It is to be observed, however, that the Carriers Act does not protect the carrier if he has been guilty of wilful misfeasance. Sect. 8 of the Carriers Act provides that a canier shall be responsi- ble for the felonious acts of his servants, altho' the customer may not have declared and insured his goods. As to the effect of this section it has been held that, while on the one hand the customer need not give evidence that would fix any particular servant with the theft, on ni i^ ' °" T the other it is not sufficient for him to show merely that nobody had jj; /j>« Co., a better opportunity of stealing his things than the company's L. It. 9 Ex. servants. McQueenv. It has been recently held that the word "paintings" in the Act is ~* *V J^' to be taken in its ordinary sense to denote works of art of the Academy i q q. i>. kind, and cannot be made to extend to rug and carpet designs, tho' painted by hand and highly artistic. W °^Yn It is to be observed that tho' railway companies are common jj- Ry ,'A ^ carriers, they are only bound to carry according to their public pro- 3 Ex. Div. fession. Johnson v. Midi. Ry. Co., 4 Kx. ; and see Richardson v. n. /;. R. Passengers Lttggage. Co., l. r. BERGHEIM v. GREAT EASTERN RAILWAY CO. [28.] [3 C. P. D.] Mr. Bergheim, one day a couple of years ago, was a passenger from Shoreditch to Yarmouth. When he arrived E 50 LEADING CASES MADE EASY. at the Shoreditch station he found he had plenty of time, and so, by way of well employing the shining minutes, he decided to go to the refreshment room and get some lunch. First, however, he took his ticket, and made the acquaint- ance of an obsequious porter named Bishop, into whose care he committed his luggage, including a certain dressing- bag. Bishop said it would be all right, and went off with the luggage. He placed it on the seat of a first-class com- partment, and locked it up. But when Mr. Bergheim had sufficiently refreshed, and went to his carriage, the bag was missing, and was never afterwards found. Mr. Bergheim now sought to make the company responsible for the loss of his dressing-bag. It was clear that the compartment, and not the luggage-van, was the proper place for such a bag, and that there had been no negligence on either side. The question, therefore, was whether the company were liable, as common carriers, in respect of the bag ; and it was held that they were not. Very much the same point had been decided in the previous and L. R. 6 we ^ known case of Talley v. Great Western Railway Co., but Mr. C. P. Talley was guilty of negligence in not getting back to his carriage after taking his glass of beer at Swindon, whereas Mr. Bergheim acted with such prudence and circumspection as would not have discredited you or me. The principle seems to be that over luggage placed at his request or by his consent in the compartment he is travelbng in the passenger is supposed to retain a kind of control, and not to have entirely confided it to the care of the company. Tho' once doubtful, it may be said to be now quite clear that, in respect of luggage carried in the van, as distinguished from luggage carried in a compartment at the traveller's request, a railway company are liable as common carriers. Such luggage, however, must not be merchandise, but simply the personal luggage of the passenger. Tli ere are a number of cases, some of them running very fine, distinguishing "merchandise" from " personal luggage." The title- Pkelps v. deeds of a client which a solicitor is taking to produce at a trial, T l \T TIT O J. 7 11 ' C ' 19 ^ e bedding which a man is carrying with a view to the time C. B., N.S. when he shall have provided himself with a home, the sketches of Macroio v. an artist, and a toy rocking-horse, have been held not to be personal n' *t' *v!' l u gg a S e ' There seems to be no satisfactory rule on the subject, Ten 6 Q. B. ' y earR a g° & judge said, "The leading idea suggested by the words LEADING CASES MADE EASY. ;, 1 'personal luggage' is something that may be carried in the hand." Mytton v. In the title-deeds case above referred to, Erie, C. J., said, "It M.Ry.Co., 4 H & N is impossible to draw a definite line. Luggage which one person ' might carry for his personal use might be a distress and annoyance ^ fty g 0t to another. But still the habits of mankind must be considered to L. R. 4 be within the cognizance of the railway company, so that anything **' "• carried according to usage for personal use would be a matter for which the company would be responsible as luggage of a traveller upon a journey. But these articles are entirely out of that category ; they were not for the plaintiff's personal use, or usually required, but were taken by him in his capacity of attorney for the service of another person, and I think the defendants are not to be held respon- sible for them."' It is to be observed, however, that if the company are not deceived in the matter, but carry the goods without objection, tho' it is quite obvious that they are not personal luggage, they will be liable. g. N. Ry. A company employing porters in the usual way are responsible for Co. v. passengers' luggage, not merely while it is being carried on the rail- s I? l V ' way journey, but also while it is in course of transmission from a cab to a train, or a train to a cab. There seems, however, to be a Ric/w rds r. little doubt on the subject of luggage left on the platform, even tho' w „' n the porter may have taken charge of it. In regard to a passenger's y'g. B. luggage on the train's arriving at the station he gets out at, it has Lovell v. lately been laid down (in a case in which a lady's maid coming from L-, 0. & D. Malvern lost her box at Paddington) that it is the company's duty to J!\ °'j . have the luggage ready at the usual place of delivery, while it is the and Ac/relJ passenger's dutv to remove it within a reasonable time. v - -£• <'" - v - W. Ry. Co., 34 L.* T. Patschei- der v. 0. W. Ry. Co., 3 Ex Div. Trains behind Time, &c. DENTON v. GREAT NORTHERN RAILWAY CO. [29.] [5 E. & B.] On the 25th of March, 1855, Mr. Denton, an engineer of some eminence, had occasion to go from Peterborough to Hull, where he had an appointment for the next morning. He consulted the company's time tables, and found there was a train leaving Peterborough at 7 p.m. which would land him ta Hull about midnight, This just suited him, E 2 52 LEADING CASES MADE EASY. so he took his ticket for Hull and started by it. But when he got to that uncomfortable looking station, where people change for Hull, Milford Junction, he was informed by an obliginsf official that the late train to Hull had been dis- continued, and that he could not get there that night. The fact was, that the line from Milford Junction to Hull belonged to the North Eastern Kailway Company, who till March 1st had run a train departing a few minutes after the arrival of the train leaving Peterborough at 7 p.m. But it had not run at all during March, and the Great Northern Railway Company had published their March time tables, tho' they had had notice that it would not run. In consequence of the absence of this train, Mr. Denton did not get to Hull in time to keep his appointment, and sus- tained damage to the amount of £5 10s., for which he sought to make the Great Northern Railway Company liable. He was quite successful. The company were held liable on the grounds — lstly. That they had been guilty of a false representa- tion. " It is all one," said Lord Campbell, " as if a person duly authorised by the company had, knowing it was not true, said to the plaintiff, ' There is a train from Milford Junction to Hull at that hour.' The plaintiff believes this, acts upon it, and sustains loss. It is well established law that where a person makes an untrue statement, knowing it to be untrue, to another, who is induced to act upon it, an action lies. The facts bring the present case within that rule." 2ndly. That the time tables amounted to a contract. [30.] LE BLANCHE v. LONDON & NORTH WESTERN RAILWAY CO. [1 C. P. D.] Mr. Le Blanche was a business man, who, in August, 1874, like a great many other hard- worked individuals, LEADING CASES MADE: EASY. 53 decided to spend a fortnight at Scarborough. He took a first-class ticket of the London and North Western Com- pany to go from Liverpool to Scarborough by the 2 p.m. train, which, the time-tables told him, would arrive at Scar- borough at 7.30 p.m. Mr. Le Blanche's journey lay by Leeds and York, at each of which places it was necessary for him to change and get into a train not belonging to the London and North Western Company. The train was 27 minutes late at Leeds, and, in consequence of that, Mr. Le Blanche missed the train he ought to have caught, and did not arrive at York till 7 o'clock, which was too late for the train on which arrived at Scarborough at 7.80. On inquiry, he was informed that the next train would leave York at 8 and get to Scarborough at 10. Most men under these circumstances would have spent an hour in dining, or looking at the old city. Not so Mr. Le Blanche. He instantly ordered a special train, and arrived at Scar- borough at about half- past eight. He now brought an action to recover the money he had paid for the special train, — nearly £12, — but in spite of the delay being traced to negligence, he did not get the money, because, tho' it is a sound principle of law that if the party bound to perform a contract does not perform it, the other party may do so for him as reasonably near as may be and charge him for the reasonable expense incurred in so doing, yet he may not perform it unreasonably and oppressively, and it was ridiculous for a man who was not the Prince of Wales and the rest of the Boyal Family to take a special train merely for the purpose of getting to a nice place an hour earlier. The duty of a carrier of passengers at common law is to deliver them at their destination within a reasonable time. If he does not do so, he is liable to an action by them. But railway companies invariably issue time-tables and conditions so as to vary their common law liability. In Denton's case it was held that the time-tables amounted to a representation, so that if :>4 LEADING CASES MADE EASY. it was a false representation an action of deceit could be brought. On the whole, too, the judges thought that the time-tables amounted to a contract with the passenger who read and acted on them. The usual condition which the companies seek to enforce is that " tho' every attention will be paid to ensure punctuality, they do not warrant the departure or arrival of the trains at the times specified in the time bills ; " and the meaning of this and similar conditions is frequently discussed. On the whole it is clear that a company cannot contract itself out of its liability to be reasonably punctual. But, on the other hand, it is not to be held liable merely because a train is late. It must be affirmatively shown that the lateness is due to neglect to pay the " every attention " which is promised. No doubt the extreme lateness of a train would raise a presumption of such negligence, but it would be open to the company to rebut it by showing that it was due to a fog, or the slippery state of the rails, or to some circumstance over which they had no control. Assuming that an action lies, there is a further question as to the damages obtainable. It is clear that damages cannot be obtained for the loss of a business engagement, such loss not being in the con- Hamlin v. templation of both parties at the time of contracting. Nor can G. N. Ry. t l am ages be obtained for annoyance of mind or illness consequent on 1 H & N * ne Gain's lateness. But damages can be obtained for physical incon- Hobbs v. venience, the having to walk, for instance, six miles on a wet night. L. fraudulent prospectus issued by brokers employed to place deben- ' tures, the director not having in any way authorised the fraud, and deriving no personal benefit from it. £ '"' v ' p r Bell 3 Ex. Div. 04 LEADING CASES MADE EASY. Undisclosed Principals^ &c. [38.] PATERSON v. GANDASEQUI. [15 East & S. L. C] Gandasequi, a respectable and enterprising Spanish merchant, made up his mind that the foreign market could do with some silks and satins. He accordingly set sail for England, and, on reaching London, went to Larrazabal and Co., certain agents in the City, and com- missioned them to buy a quantity of goods for him. Larr. and Co. (life is too short to repeat the whole name) pro- ceeded to execute the commission, and asked Paterson and Co., a great hosiery firm, to send certain specified articles with terms and prices. Now, Paterson and Co. knew Larr. and Co., and had perfect confidence in them, but Gandasequi they did not know, and had no confidence in. Therefore, tho' they sent the goods and tho' they knew perfectly well that they were really for Gandasequi, and that Larr. and Co. were merely his agents in the matter, yet for all that they booked the goods as sold to Larr. and Co. This was unfortunate, because it happened that Gandasequi was really a more substantial person than his agents, who shortly afterwards went to financial smash. Paterson was not disposed .to be content with the fraction of his debt, which, as a creditor in bankruptcy, he might have got from Larr. and Co., and, with the laudable object of getting the whole of his money, sued Gandasequi. But it was held that, if the seller of goods knows that the person he deals with is only an agent and knows also who his principal is, and in spite of that knowledge chooses to give the credit to the agent, he must stand by his choice, and cannot sue the principal. LEADING CASES MADE EASY. 65 DAVENPORT v. THOMSON. [39] [9 B. & C. & S. L. C] A person named McKune carried on at Liverpool the business — whatever it may be — of a "general Scotch agent." This gentleman one day received a letter from some clients of his in the land of Burns to the following purport : — " Dumfries, 29th March, 1823. " Dear Sir, — Annexed is a list of goods which 3^011 will please procure and ship per Nancy. Memorandum of goods to be shipped : — twelve crates of Staffordshire ware, crown window glass, ten square boxes, &c, &c. " Yours for ever, " Thomson and Co." On receiving this letter, McKune went straight to the shop of Davenport and Co., who were glass and earthen- ware dealers, and had an interview with their head partner. He did not pretend to be buying for himself. He said he had received an order to purchase some goods for some clients in Scotland, but he did not mention their name, and the Davenports did not ask for it. They sold about £200 worth of goods and debited McKune, tho' they knew perfectly well he was only an agent. Then McKune failed without having paid Davenport and Co. This was an action by Davenport and Co. against McKune's principals, Thomson and Co., who denied their liability on the ground that Davenport and Co. had debited McKune, and could, therefore, look only to him for pay- ment. This view, however, was not adopted by the court, and Thomson and Co. were made to pay, the principle being that, as the name of the real buyer had not been disclosed to them by the agent, the sellers had had no opportunity of writing him down as their debtor. F 66 LEADING CASES MADE EASY. The chief rules on this subject are, — 1. Where you contract with a man whom you know to bo an agent, and you know also who his principal is, but, in spite of such knowledge, you give credit to the agent, and to him alone, you are hound by such election, and cannot afterwards sue the principal. 2. Where you deal with a man who appears to be a principal, you may, on discovering that he is only an agent, sue him or his principal at your pleasure. It is necessary, however, that you should Smethwrst xn&ke your election between them within a reasonable time. IE & E ' "^ Where you deal with a man who is known to be an agent, but whose principal is undisclosed, you may, on giving evidence that he Carr v. is himself principal, sue him ; otherwise, you must sue his principal. Jackson, jf a person signs a contract in his own name without disclosing Hutchinson ^ e ^ ac ^ ^at ^ ie * s on ty an a g en t> he is prima facie to be deemed the v. Tatham, person responsible ; and, on an action being brought against him on L. R. 8 0. thg con tract, he cannot turn round and shuffle off his liability by saying that he was only somebody else's agent. Parol evidence to prove such a thing would not be admitted, and, if he gets out of the scrape at all, it will be because it is quite clear from the rest of the document that he did not mean to bind himself personally. And, indeed, the person who has signed a contract in his own name may still be liable, altho' in the body of the contract he has expressly declared himself to be an agent. Very recently a charter-party was entered into between some shipowners, the plaintiffs, and the defen- dants "as agents for charterers." But the defendants signed it in their own name without qualification, and were accordingly held Hough v. liable. "The defendants," said Pollock, B., "have signed the Manzanos, c harter-partv without anv reservation, and the ride of law which has 4 Ex. Div. been quoted from Smith's Leading Cases applies. That rule is, that where a person signs a contract in his own name without qualifica- tion, he is prima facie to be deemed to be a person contracting personally, and in order to prevent this liability from attaching it must be apparent from the other portions of the document that he did not intend to bind himself as principal. Now the words ' as agents for charterers' do not in themselves, as the cases on the E. B. & E. subject show, make that intention apparent. Thus, from Oc/lesby v. Yglesias, it appears that the words ' as agent for the freighters ' in the body of the charter-party would not relieve the party signing L. R. 5 Ex. from liability. In Paice v. Walker the words 'as agents for' a named foreign principal were held to be a mere description of the 1 Ex. Div. ; defendants, and not to free them from liability. In Oadd v. Houghton, and see which was tried before me at Liverpool, the words were ' on account Halt 4o' °^' a f° re i8 n principal. In that case I held that the defendants were L.T.,N. S. not liable, and this judgment, tho' overruled by the Exchequer Division, was upheld in' the Court of Appeal. James, L.J., based LEADING CASKS MADE EASY. 67 his decision on the difference between the expressions 'as agents for' and 'on account of — a distinction I confess I cannot appreciate, but which leaves Pake v. Walker au authority binding on me here.'' Suppose, however, that the person has signed "as agent," this is very strong evidence to show that he is not personally liable. But Deslandes still it is not conclusive. A custom, for example, may be proved to v - Gregory, show that an agent is personally liable in spite of his purporting to be only an agent. And when there is no responsible person to be Humfrey the principal, the agent is personally liable, however pathetically he v - -Date. may insist that he is only agent. A contractor agreed with some . / , ' ' persons to pave the streets of Putney, and they "on behalf of the Southwellv. parish " agreed to pay for it. In spite of their having thus contracted BowdUch, as agents, it was held that they were personally liable. At one time it was considered to be the law that whenever an agent in England }/,,„,, „_ contracted on behalf of a foreign principal he was himself responsible, sold, because he could be got hold of more easily. The question, however, Hardw., in such a case is really one of fact, viz., to whom was credit given ? Lennard v. Parol evidence is always admissible to charge an undisclosed Robinson, principal, while, on the other hand, the undisclosed principal may & B- give parol evidence to show that he is not really liable, because, for i'";.','/'^ v ' instance, he furnished the agent with sufficient funds to pay. Some- 14 C. B. times, too, the undisclosed principal wishes to come forward and Trueman take advantage of the contract made for him by his agent. This he ^ ~*^?"' can generally do, but not if the agent has contracted in such terms as to lead anyone to suppose that he is himself the principal. A widow once brought an action on a charter-party for freight, de- murrage, &c. She was the owner of a ship called the Ann. But when the charter-party was produced it appeared that her hopeful son, who was really only her agent in the matter, had had the temerity to write that it was '• that day mutually agreed between C. J. Humble, Esq., owner of the good ship the Ann." It was held that parol evidence could not be given to show that the young man was only acting as the old lady's agent Humble v. Hunter, 12 Q. B. Set- Off against Factor s Principal. GEORGE v. CLAGETT. [7 T. R & S. L. C] Messrs. Rich and Heapy carried on business in woollen cloths. For the purposes of their riches heaping they were F2 [40.] 08 LEADING CASES MADE EASY. not content with carrying on business on their own account, but acted also a"s factors for other people. As they carried on all their business at the same warehouse, it would not be obvious when they were acting as principals and when as agents. At the time of our story Messrs. Eich and Heapy happened to have in their possession as factors a large quantity of goods belonging to Mr. George, a clothier of Frome, which goods were in their warehouse along with goods belonging to themselves. It happened just then that Messrs. Clagett were in want of such goods. They held a bill of exchange for £1200, accepted by Rich and Heapy, and as they saw no particular likelihood of getting paid, they thought it would not be a bad plan to buy goods from them on credit, and deduct the amount of the bill from the purchase-money. In pursuance of this plan, Messrs. Rich and Heapy sold them a quantity of goods, making out a bill of parcels for the whole in their own names, and Messrs. Clagett fully believed that they were dealing with principals. Messrs. Rich and Heapy took the goods out of one general mass in their warehouse, so that a large portion of them really belonged to the clothier of Frome, the unfortunate Mr. George. This was an action by that gentleman against Messrs. Clagett for the price of the portion of the goods which belonged to him, and which he said Messrs. Rich and Heapy had sold as his agents. Messrs. Clagett said they did not know that Rich and Heapy were his agents or anybody else's agents, and claimed to have the same right of set-off (that is to say, of deducting the above-mentioned debt) which they would have had against Messrs. Rich and Heapy. In this contention they were successful. " In all these cases of set-off," says Lord Truro in a later case, " the law endeavours to meet the real honesty and justice of the case. Where goods are placed in the hands of a factor for sale, and are sold by him under circumstances that are calculated to induce, and do induce, a purchaser to believe that he is dealing with his own LEADING CASES MADE EASY. 69 goods, the principal is not permitted afterwards to turn round and it'll the vendee that the character he himself has allowed the factor to assume did not really belong to him. The purchaser may have bought for the express purpose of .setting off the price of the goods against a debt due to him from the seller." /.V. s ./, v- These words put the rule and its reason very clearly. And Lord Kempton, Truro goes on, — ' ' " But the case is different where the purchaser has notice at the time that the seller is acting merely as the agent of another. In that case there would he no honesty in allowing the purchaser to set off a bad debt at the expense of the principal." As to this last point, the effect of the decisions seems to be that, altho' the defendant had the means of knowing that he was dealing with an agent, and did not make use of them, he is still entitled to his right of set off. But, of course, the fact that a man has ready to Barries v. hand the means of knowing a thing is evidence, to some extent, that n'/'j. i j> he actually does know it. 9 C. P. It Is to be observed that the principle of George v. Clcujett does not Bell v. extend to brokers, a broker differing from a factor in not having the [ T "J'' '") 4 M. & (i. possession of the goods, so that a purchaser could not well be deceived; nor to cases where the claim is for unliquidated damages. Baring v. The principle, however, has been extended to cases where the ^"' f ' c ' . , , purchaser knew that he was dealing with a factor, but believed that Turner v. the factor had a right to sell, and was selling, to repay himself Thomas, advances, and to the case of a partner allowed by the firm to appear \ ^" ' as the sole owner of partnership property. WcKav This may be a convenient place to mention the existence of certain l M. & w. Acts called the Factors' Acts, which enable a factor to give a title by Gordon v. way of pledge, and in various other ways protect an innocent person ^ !'*'„ from being taken in by appearances. The effect of these Acts are a . "» A ° , , h & / Geo. thus shortly given in Chitty's Statutes : — IV., & 94 ; " First, where goods, or documents for the delivery of goods, are 5 & 6 Vict, pledged as a security for present or future advances, with the know- ^q i ',f m ledge that they are not the property of the factor, but without notice Vkt. c. 39. that he is acting without authority, in such case the pledgee acquires an absolute lien. " Secondly, where goods are pledged by the factor, without notice to the pledgee that they are the property of another, as a security for a pre-existing debt, in that case the pledgee accpiires the same right as the factor had. " Thirdly, where a contract to pledge is made in consideration of the delivery of other goods or documents of title upon which the person delivering them up had a lien for a previous advance (which is deemed to be a contract for a present advance), in that case the pledgee acquires an absolute lien to the extent of the value of the goods given up." 70 LEADINC CASES MADE EASY. These Acts, it lias been held, do not operate to enable persons merely entrusted with the possession of goods for custody (such as warehousemen) to give titles binding their employers. A recent case 3 C. P. D., of some importance on this subject is Johnson v. Credit Lyonnais Co. and see ^ person, named Hoffman, a tobacco merchant and broker, had a Montis ' c l uan fity °f tobacco lying in bond in his name in the warehouses of L. R. 4 C. the St. Katharine's Dock Company. This tobacco he sold to a Bolton P. ; and tobacconist named Johnson. It was not convenient to Mr. Johnson North *° t R k e it out of bond just then ; so, altho' he had paid for it, he allowed Western the dock warrants and other indicia of property to remain in Hoff- Bank,\j.R. man ' s hands. Hoffman then took a mean advantage of his being the ostensible owner of the tobacco, and fraudulently obtained advances on the pledge of a portion of it from the Credit Lyonnais Company. It was held in an action that the company were not protected by the Factors' Acts, or anything else, against being obliged to pay Johnson the value of the tobacco pledged. Agent Exceeding Authority Liable in Contract. [41.] COLLEN v. WRIGHT. [8 E. & B.] Mr. Wright was the laud agent of a gentleman named Dunn Gardner, and as such made an agreement with a Mr. Collen for the lease to him for twelve and a-half years of a farm of Dunn Gardner's. On the strength of this agreement Collen entered on the enjoyment of the farm ; but he soon found that there was a serious difficulty in the way. Mr. Dunn Gardner refused to execute any such lease, saying that he had never authorised Mr. Wright to agree for a lease for so long a term ; and this proved to be the fact. This was an action by the disappointed farmer against the executors of the agent who had led him wrong, and the main question was whether Wright's assuming to act as Dunn Gardner's agent to grant the lease amounted LEADING CASES MADE EASY. 71 to a contract on his part that he had such authority. This was the view ultimately adopted, so that Wright's execu- tors became liable to Collen. A person who contracts as agent for another, when he really haw no authority from him, cannot be sued as a principal on the contract. Ii he has professed to be agent, when he knew perfectly well he was nothing of the kind, he can be sued in tort on his false representation. Tie case of Randell v. Trimen may be consulted on this point. It 18 C. B. was the case of an architect falsely representing that he had authority to «rder stone from the plaintiffs for a church in course of erection. But, as we have seen in Collen v. Wright, even when the professed ageit has acted perfectly in good faith, he is liable for any damages thatmay be sustained by reason of the assertion of authority being untne, not indeed in tort, but on an implied warranty that he had the tuthority he professed to have. It is very much the same doctine which takes a person who promises marriage to warrant Dickson v. that le is legally competent to marry. Reuters A touple of years ago an attempt was made to extend the principle n 3 q of Colen v. Wright to the case of a blunder in a telegram, the con- P. D. tentioi being that the defendant telegram company must be taken to ha^e warranted that the message was correct. This view, how- ever, ud not prevail. "The general rule of law," said Bramwell, L.J., 'is clear, that no action is maintainable for a mere statement, altho' intrue, and altho' acted on to the damage of the person to whom 1 is made, unless that statement is false to the knowledge of the peron making it But then it is urged that the deci- sion in Pollen v. Wright has shown that there is an exception to that general rule, and it is contended that this case conies within the principh of that exception. I do not think that Collen v. Wright, properlyunderstood, shows that there is an exception to that general rule. Cllen v. Wright establishes a separate and independent rule, which, \ithout using language rigorously accurate, may be thus stated : i a person requests and, by asserting that he is clothed with the necesary authority, induces another to enter into a negotiation with himelf, and a transaction with the person whose authority he represent that he has, in that case there is a contract by him that he has the aithority of the person with whom he requests the other to enter intcthe transaction. That seems to me to be the substance of the decishi in Collen v. Wright. If so, it appears to me that it does not apply ;o the facts before us, because, in the present case, I do not find any Equest by the defendants to the plaintiffs to do anything. The defeiiants are simply the deliverers of what they say is a message fim certain persons to the plaintiffs. No contract exists : 72 LEADING CASES MADE EASY. no promise is made by the defendants, nor does any consideration move from the plaintiffs. It appears to me, therefore, that there is a distinction between this case and Collen v. Wright, and consequently we cannot have recourse to that case to take this out of the general rule to which I have referred." Goods privileged from Distress. [42] SIMPSON v. HARTOPP. [WlLLES & S. L. C] John Armstrong was a stocking-weaver of Leicester, and rented a small cottage of the defendant Hartopp. Barly in 1741 he hired a stocking-frame from the plantiff Simpson at so much a week for the purposes of his trade. About the end of the year, as tenants will do, hi got behindhand with his rent, and Hartopp, as landlord will do, distrained on him. There was not much fof the bailiffs when they came ; indeed, so little that theB was not enough to satisfy the rent in arrear without carying off Simpson's stocking-frame. This was done, altln' " the said John Armstrong's apprentice was then wearing a stocking on the said frame." When he heard of this, the anger of Simpsoi was kindled, and he brought an action of trover or the stocking-frame, and succeeded in getting it restored to him ; for a landlord has no business to distrain on^vhat is actually in use at the time. The general rule is, that all personal chattels can be disdained for rent. Simpson v. Hartopp introduces us to the exceptions i- 1. Some things are absolutely privileged from distress ; Under no circumstances can they be taken. Such things are — (1). Things in the personal use of a man ; because the law does not wish to encourage breaches of thebeace. LEADING CASES MADE EASY. 7;{ (2). Fixtures ; because damage would be done to the freehold in tearing them away. A landlord La empowered by statute to distrain growing corn, &c. (3). Things sent to the tenant to be wrought on in the way of his 11 Geo. II. calling; c. 19, s. 8. this exemption is for the Bake of trade ; no one would like his boots to be at the mercy of his cobbler's landlord whenever they required mending. But the goods must be on the premises of the person exercising the trade, or they will not be privileged. Lyons v. (4). Perishable articles (e.g., fruit, fish, cocks of corn, &c.) ; fn"% r> because such articles cannot be restored in statu quo ante distraint ; they soon become corrupt and uneatable. Morley v. (5). Wild animals (fene natune, as the law-books call them) ; J'inrombe, because no one has any valuable property in them. Dogs were once ' considered ferce natum — one judge went so far as to call them vermin — but they are not now, nor are deer in a park ; and when an animal, Navies v. naturally wild, has discarded its rough manners and settled down as w .« ' to play the humbler role of domestic pet — a tame fox or a dancing bear, for instance — it may be distrained as much as a horse or a donkey. (6). Goods in the custody of the law ; because already taken in execution, for instance. (7). Money lying about. Wilson v. (8). Lodgers' goods ; Diu-kct, by virtue of an Act passed in 1871. But the lodger must take certain steps pointed out by the Act. It has been held that an under if- ^ * n ■ , , <• i .. i a * lct - c - '9. tenant is a lodger lor the purposes ot the Act. pi r 2. Certain other things are privileged conditionally. They can be Henson, taken, but only when there are not sufficient other goods on the pre- 3 C. P. D. mises to satisfy the landlord's claim. Such things are — (1). The instruments of a man's trade ; e.g. , a navvy's pickaxe, a doctor's stethoscope, a lawyer's " Leading Cases," or a stocking-weaver's frame. It would be contrary to public policy to take the means whereby a man lives. Of course, if the lawyer were actually reading his law-book, or the doctor using his surgical instrument, such things would be absolutely privileged, as being in their personal use ; so that there would be no necessity to make them out to be conditionally privileged. (2). Beasts of the plough ; but not colts, steers, or heifers. Beasts of the plough, however, can be distrained for poor-rates, whether there are other things on the premises or not. Rod** (3). Beasts which, tho' not beasts of the plough, yet improve the v . Cham- land ; ^ rs, i 1 BlUT. e.g., sheep. 74 LEADING CASES MADE EASY. The effect of taking privileged goods is to make the distraining landlord a trespasser ab initio. But where part only of the goods distrained are privileged, he is trespasser ab initio only in respect of Harvey v. that part. Pocock, 11M.&W. Agricultural Fixtures, &c. [43.] ELWES v. MAW. [3 East & S. L. C] Towards the close of the last century, Elwes let a farm at Bigby, in Lincolnshire, to Maw for twenty-one years, and during his tenancy Maw conceived and carried out various improvements for the more profitable occupation of the land. He built a beast-house, a carpenter's house, and a pigeon -house, amongst other things. By and by the twenty-one years came to an end, and the time came for Maw to go. A few days before leaving, he set his labourers to work to pull down the beast-house, and the carpenter's house, and the pigeon-house, and whatever else he had erected, and carted them all away, leaving the premises in just the same nude condition they were in when he entered. When Elwes heard of this, he was very angry. He said Maw had no right whatever to take away fixtures, it was fiat burglary, and so on ; and finally he brought an action for waste. There was no doubt that by the old Common Law whatever a lessee annexed to the freehold during his term, unless it was a trade fixture, became the landlord's when he left ; but Maw's counsel argued that considering the capital farming required now- a-days, and the elaborate implements employed in the cultivation of the land, agriculture Avas every bit as much a trade as clock-making or ironmongering. Moreover, LEADING CASES MADE EASY. 75 they produced authorities which showed that hot-houses, posts, sheds, colliery engines, and the like, had in various cases been held to be removable by tenants as being trade erections ; and they defied the plaintiff to show the difference between such things and the things the defendant had set up. All this was very plausible, but the judges came to the conclusion that Maw had no right to remove his erections. They said it would be a '' dangerous innovation " to call agriculture trade, and that the hot-houses and the other erections the defendant made so much of, were all more or less connected with trade. " Wherefore," as the poet says, " Elwes the shrewd maintained his cause and his verdict, Had great worship of all men there, and went homeward rejoicing, Bearing the postea, goodly engrossed, the prize of the battle.'' "Leading • p • Cases done It may be cpiestioned — with all respect, of course, be it said — [ n ^ whether the judges in this case made a right use of the authorities English." before them in coming to the conclusion they did. The matter, however, is of small moment now, as by the Agricultural Holdings Act, 1875, the tenant may always (unless he has prevented himself by contract from doing so) remove a fixture (barring a steam- 38 & 39 engine) he has erected. The only conditions of his doing so are that Vict, c. 92. he must have paid up all arrears of rent, must make good any damage done in removing the fixtures, and must give his landlord a month's notice in writing of his intention to remove them. On receiving such notice, the landlord, instead of allowing his tenant to take the fixtures away, may elect to purchase them at whatever sum a referee (supposing landlord and tenant to be unable to agree with- out such help) considers fair. This Act, however, does not apply to holdings of less than two acres, nor, of course, to those which are neither agricultural nor pastoral. An Act passed a quarter of a Sect. 58. century previously had already relaxed to some extent the rigour of 14 & 15 the old rule. But that Act applied only to fixtures erected with the Vl ^ t - c - 25 > consent in writing of the landlord, so that the later legislation is infinitely more important. Fixtures erected for purposes of trade, ornament, or domestic use may, as a rule, be freely removed by the tenant. On the whole, therefore, as between landlord and tenant, the maxim " qiiicquid plantatur solo solo cedit" has lost much of its pristine force and application. But the tenant must take care to re- 76 LEADING CASES MADE EASY. Colegrave v. Dios Santos, 2 B. & C. Turner v. Cameron, 39 L. J. Q. B. move the fixtures during the tenancy; otherwise the law will presume that he intended to make a present of them to his landlord. As between heir and executor, however, the law is more as it used to be, for the house or land cannot be ruthlessly denuded of fixtures which add materially to its enjoyment ; the estate ought not to come to the heir maimed or disfigured. As between vendor and vendee, a sale of the freehold carries with it the fixtures, unless there is an express provision to the contrary. As to what constitutes a fixture, the following definition had the approval of the Queen's Bench in a case where the question was whether certain colliery railways were exempt from distress as heii'g fixtures: — "It is necessary in order to constitute a fixture that the article in question should be let into or united to the land, or to some substance previously connected with the land. It is not enough that it has been laid upon the land and brought into contact with it ; the definition requires something more than mere juxtaposition, as that the soil shall have been displaced for the purpose of receiving the article, or that the chattel should be cemented or otherwise fastened to some fabric previously attached to the ground." It may be re- marked, however, that there can be a " constructive annexation." Keys, heirlooms, charters, deer, fish, &c, are considered for most purposes to he annexed to the freehold. Leases for more than Three Years not in Writing. [44.] RIGGE v. BELL. [5 T. R. & S. L. C] By parol merely, Rigge let Hague's Farm in Yorkshire to Bell for seven years, and Bell entered and paid rent. But the tenant did not give satisfaction, and Rigge deter- mined to get rid of him. By the terms of the agreement Bell was to go out at Candlemas; but Rigge's view was, as the lease, being for more than three years, and yet not in writing, as the Statute of Frauds required, operated merely as a tenancy at will, he could make the man quit when he pleased, and was not bound by the terms they had agreed on. In this view he found himself mistaken, LEADING CASES MADE EASY. 77 for it was held that, "tho' the agreement be void by the Statute of Frauds as to the Juration of the lease, it must regulate the terms on which the tenancy subsists in other respects, as to the rent, the time of the year when the tenant is to quit, &c." CLAYTON v. BLAKEY. [45.] [8 T. It. & S. L. C] By parol merely, Mr. Clayton let Blakey some land for twenty-one years, and Blakey entered and paid rent. Two or three years afterwards, his landlord gave him notice to quit, and, as he treated such notice with supreme contempt, sued him for double rent for holding over. To this claim Blakey raised the somewhat cool defence that (by virtue of section 1 of the Statute of Frauds, which directs that any lease for more than three years not reduced into writing shall operate only as a tenancy at will) he was only a tenant at will, and ought to have been so described in the plaintiff's declaration. It was held, however, that Blakey was not a tenant at will, but a yearly tenant, and therefore the plaintiff's pleading was good enough to hit him. The decision in Clayton v. Blakey seems at first sight rather extra- ordinary. The Statute of Frauds distinctly says that all leases l>y parol for more than three years shall be tenancies at will only. The decision intervenes and says — " No ; they shall be yearly tenancies," thus putting the tenant in a better position than the statute left him in. The accepted explanation is that the statute's intention was that the estate should be an estate at will to begin with, but that, when once created, it should be liable, like any other estate at will, to be changed into a tenancy from year to year by payment of rent or any- thing showing an intention to create a yearly tenancy. But if there were no circumstances showing such intention, the estate would remain an estate at will. These decisions are not affected by 8 & 9 Vict. c. 106, s. 3, which provides that a lease which is already required by law to be in writing must be also under seal, it having been held that the lease may be void as a lease because not under seal, and vet good as an agreement. 78 LEADING CASES MADE EASY. Waiver of Forfeiture, &c. [46.] DUMPOR v. SYMMS. {Sometimes called Dumpor's Case.) [4 Eep. & S. L. C] If the student chance to be dining with his grandfather, that esteemed but elderly relative (if in bygone days he has been connected with our noble profession) may expect him to know something about Dumpor's case ; and, if he knows nothing about it, may think his descendant has made but slight progress in his legal studies. For this reason, but hardly for any other, it is desirable that the reader should make himself more or less acquainted with this truly wonderful case. In the tenth year of Elizabeth's reign the excellent little College of Corpus, Oxford, made a lease for years of certain land to a Mr. Bolde, exacting from him a covenant that he would not alien the property to anybody else without the College's consent. Three years afterwards the College by deed gave him permission to alien to anybody he pleased, and soon afterwards Bolde availed himself of this permis- sion and assigned the term to one Tubb. Tubb, after a brief enjoyment of this world's goods, made his will devis- ing the lands to his son, and went over to the majority. The son entered, and also died, but intestate, and the ordinary granted administration to a person who assigned the term to the defendant Symms. Thereupon the wrath of the President and Scholars of the College of Corpus Christi, in the University of Oxford, was kindled. Bolde had covenanted with them not to assign without leave, and such a covenant, they said, should have been observed by whoever held the lands. Therefore they entered for LEADING CASKS MADE EASY. 79 the broken condition, and leased to Dumpor for twenty-one years. Dumpor entered, but Symms re-entered, and for d) ling so Dumpor now brought this act ion of trespass against him, the College spectator of the tempest from the safe shore. Dumpor did not succeed : the case was decided against him, on the ground that " if the lessors dispense with one alienation, they thereby dispense with all alienations after." "Dumpor's ease always struck me as extraordinary," said one judge in 1807. " The profession have always wondered at Dumpor's case," said another in 1812. And yet Dumpor's case remained the law of the land till 1860, when the legislature knocked it on the head by enacting that " every such licence should, unless otherwise expressed, extend only to the permission actually given." And the 22 & 23 effect of the case was still further destroyed by an Act passed the next * * ct * c- ^ - year, and prohibiting waivers in particular instances from being inter- preted to mean general waivers. This was certainly the infusion of 23 & 24 a little common sense into our common law. Vict. c. >>o. Tho' Dumpor's case is therefore useless in itself, being of merely antiquarian interest, it is supposed to " lead " to the rather important subject of waiver of forfeiture. Tho' a lease is forfeited by the tenant's having broken some condition, the landlord, if he pleases — and that pleasure is inferred from certain acts — may elect to continue the man in his tenancy in spite of the broken condition. The most satisfac- tory of the acts which operate as a waiver of forfeiture is acceptance of rent ; but there are others. The law leans against forfeitures, and any act on the part of the lessor showing an unequivocal intention to treat the lease as subsisting has the effect of putting an end to his right to take advantage of the forfeiture. "The cases are uniform in this," says Blackburn, J., in 1863, " that where a lease has been for- feited and there is an election to enter or not, if the landlord either by word or by act determines that the lease shall continue in existence, and communicates that determination to the other party, he has elected that the other shall go on as tenant, and that the tenancy shall continue, and having done so he cannot draw back." Ward v. Sometimes, however, the condition, instead of providing that " upon ,,'' " v , breach thereof the lessor may re-enter," 1 provides that " upon breach thereof the lease shall become void," and it used to be said that in the latter case the lessor had no power to waive a forfeiture, it is probable, however, that this distinction, if it ever did, at all events does not now exist. As observed above, when the landlord has once 80 LEADING CASKS MADE EASY. made his election, he cannot go back from it. In the case of Croft v. G II. of L. Lumley, which was an action of ejectment to recover the Opera House in Pall Mall, a curious question arose as to the effect of a receipt of rent by a landlord which was accompanied by a statement on his part that he received the money not as rent, but as compensation for the use of the premises, and that he did not intend to waive a for- feiture which had, in his opinion, been incurred. Unfortunately the case went off on another point, so that the question was not decided. Probably, however, if it had been necessary to decide the question, See, how- it would have been held that there was no waiver of forfeiture here. ^y er ' , It is a very common condition in a lease that the tenant shall not Davenport ... v. The assign without his landlord's consent. It has been held that this Queen, condition is not broken by a compulsory assignment by law — under A PP- a - the bankruptcy laws, for instance ; tho' it would be by a lessee's executing a deed and assigning all his property to trustees for the Holland benefit of his creditors. Sometimes the covenant the tenant enters T tt * n mto * s tnat ne w *^ not ass ^8 n without his landlord's consent, " such consent not being arbitrarily withheld." These words, it has been held, do not amount to a covenant by the lessor that he will not refuse arbitrarily, but simply enable the lessee, if the lessor refuse Treloar v. his consent arbitrarily, to assign without any breach of covenant. Bigg, L.R.9Ex. Mortgagor s Tenants. [47.] KEECH v. HALL. [1 Doug. & S. L. C] The owner of a warehouse in the city mortgaged it to Mr. Keech, but remained in possession. Soon afterwards, without saying a word to Keech on the subject, he leased it for seven years to Hall. Keech was very indignant at this. He said the mortgagor had exceeded his rights, having no business to do such a thing without consulting him, and that Hall was no better than a trespasser, and could be ejected without notice. And the judges coincided with his view of the matter. At first sight the tender- hearted student may think this a little rough on Hall ; LEADING CASES MADE EASY. 81 but it is not really so ; for if the man had taken the trouble to make proper enquiry he would soon have discovered that the person he was dealing with was only a mortgagor, and therefore that it would be a risky thing to take a lease from him. MOSS o. GALLIMORE. [48.] [Dougl. & S. L. C] Mr. Harrison began the year 1772 by letting a house to Moss for twenty years at the rent of £40 a year. Times were bad with Mr. Harrison, and in May of the same year he mortgaged the property to a Mrs. Gallimore, a nice old lady, who wanted eligible security for the nice little fortune which her late husband had left her. Moss was not in the least affected by this mortgage of the reversion. He went on quietly living in the house, and paid Harrison his rent pretty regularly up to November, 1778, when he was £28 behindhand. At that time Harrison, having sunk deeper and deeper into the mire, became bankrupt, being at the time indebted to Mrs. Gallimore for interest on the mortgage in a sum greater than £28. Mrs. Gallimore gave Moss notice of her being mortgagee, and told him to pay to her the £28 which he unquestionably owed to somebody. Moss showed no disposition to yield to this demand, and finally the old lady made a raid upon his chairs, tables, grandfather's clocks, &c. This distraint Moss considered a trespass, and brought this action accordingly. It was held, however, that the worthy Mrs. Gallimore was quite justified in distraining, for a mortgagee after giving notice of the mortgage to a tenant in possession under a lease prior to the mortgage is entitled to the rent in arrear at the time of the notice as well as to what accrues afterwards, and he may distrain for it after such notice. 82 LEADING CASES MADE EASY. The country squire, something of the sort says the immortal Williams in that famous volume of his, whose necessities have obliged him to mortgage his estate, is frequently under the impression that, in spite of the mortgage, he is as much monarch of all he surveys as he was before ; and is often disagreeably surprised to learn that he cannot so' much as let a farm without the consent of the lawyer fellow to whom he has mortgaged. The legal position of the mortgagor varies according to circumstances. If he has expressly stipulated with the mortgagee for remaining in possession But see for a time certain (as distinguished from merely " until default ") sub- Doe d. j ec t t the payment of interest, this has the effect of a redemise, and Goldwim ^' ie mor tg a S or i s then a termor. Sometimes he is made tenant to a 2 Q. B. person appointed jointly by himself and the mortgagee to receive the Wilkinson rents : or the agreement may take other forms. When no definite v. Mali, agreement has been made on the subject, the mortgagor is by way of jf Q ' being, — tho' he is not exactly, — tenant at sufferance, or tenant at Jolly v. will ; and if (like the owner of the warehouse we have just been Arlmthnot, reading about) he lets in any tenants, the mortgagee may treat them j e ' as trespassers. Supposing, however, the mortgagee in any way recognises their tenancy, — and whether he has done so or not is a See Doe v question of fact for the jury, — they become his tenants at the rent Bales, they agreed with the mortgagor to pay. It was once thought that a 7 Bing., mortgagee had only to give him notice to make one of these persons and Doe v. , . ° ° _ ' . . , 1 Cadwalia- n)s own tenant. But it is now clear that there must be some evidence der, 2 B. & of the man's consent ; and that the tenancy which from the time of that consent begins is a new tenancy and not merely a continuation Ell^tt V ' °^ * ne °^ 0Qe between himself and the mortgagor. 9 A. & E., The mortgagor, tho' in some respects his position is cramped and and Brown undignified, may exercise acts of ownership which are not presumably 1 M. &^G a source °f P ron t- For instance, he may hold his manorial court, Waddilove vote ^ or tne T° r y candidate, give his nephew a living, &c, &c, with- v. Barnett, out drawing down on his head the wrath of the mortgagee. 2 Bmg. Tjj e Judicature Act, 1873, givevS power to a mortgagor in possession „ ' " to sue for rent due to him, or to bring an action of trespass in most sub-g.' 5. cases in his own name ; and it has been recently held that a mortgagor in receipt of rents and profits has a sufficient interest to enable him to maintain an action for an injunction to restrain an injury done to Fahdoucjh the mortgaged property without joining the mortgagee. v. Mar- The student will be able to distinguish Moss v. Gallimore from 4 E D" & ee °h v - & a tt ^ rec oU eci i n g clearly that the former case has to do ' with leases made by the mortgagor before the mortgage, and the latter with leases made by the mortgagor after the mortgage. As to the former class of leases, it used to be necessary that the mortgagor's tenant should attorn to the mortgagee before the latter could claim rent from him. But it is now sufficient that the mortgagee should give the tenant notice to pay the rent to him. LEADING CASES MADE EASY. 33 Covenants Running with the Land. SPENCER v. CLARK. [49.] (Sometimes called Spencers Case.) [5 Rep. & S. L. C] In the days of good Queen Bess there lived a gentle- man named Spencer who, wise in his generation, married a woman with money. Thus erected into a landed pro- prietor, he let a house and grounds to a member of the great family of Smith for a term of twenty-one years, and in the indenture Smith covenanted to build a brick wall on the lands let to him. Before very long Mr. Smith got tired of his residence, and assigned the demised premises to a Mr. Jones without having made the least attempt at build- ing the brick wall. But Jones could not live there either, and he in his turn passed on the place to Clark. Mean- while nobody had built the wall, and Spencer called on Clark to do it. " I'll see you — ," replied Clark, in the most forcible Saxon of the period, " I've nothing to do with it ; I never undertook to build any brick walls." "Well but," said Spencer, " Smith did; and you stand in his shoes." Argument, however, was useless, and Spencer went to law. The judges had quite "a day" over this brick watt. " And, after many arguments at the bar, the case was excvllently argued and debated by the justices at the bench . . . and many differences were taken and agreed concerning express covenants and covenants in law, and Avhich of them would run with the land, and which of them are collateral and do not go with the land, and where the. g2 84 LEADING CASES MADE EASY. assignee shall be bound without naming him, and where not ; and where he shall not be bound, altho' he be expressly- named, and where not." They decided in the end that Clark was not bound to build the wall, Smith not having covenanted for his assigns but only for himself as to a subject-matter not in existence at the time of the covenant. A covenant " runs with the land " when either the liability to perform it, or the right to take advantage of it, passes to the assignee of that land. A covenant " runs with the reversion " when either the liability to perform it, or the right to take advantage of it, passes to the assignee of that reversion. At common law covenants ran with the land, but not with the reversion. So that if a lessee covenanted to build a billiard-room on the demised premises, and his lessor becoming impecunious sold the estate to Brown, Brown could not sue for breach of the covenant in his own name ; he had to ask the lessor to please bring the action for him. The awkwardness of this state of things was not clearly perceived till the time of the Reformation ; when the lands of the suppressed monasteries were parcelled out among the Cavendishes and a few other destitute and deserving families. The grantees found that they could not reap the benefit of the conditions of re- entry which the fat monks had inserted in the leases of their tenants without the assistance of the monks themselves, which those worthies were of course too angry to render ; and so they applied for one of those beautiful bits of class legislation which we meet with so frequently up and down our history. The Act passed was 32 Hen. VIII. c. 34, which piit the assignee of the reversion in the same position as the lessor himself stood, specially providing of course that grantees of monastic lands should be considered to be assignees of reversions. Both the benefit and the burden of covenants therefore now run with the reversion just in the same way that they always ran with the land. The assignees of the lessor and the assignees of the lessee stand on the same footing, so far as taking advantage of or being liable to perform covenants is concerned. The law on the subject of covenants running with the land may be summarised as follows : — 1. Suppose the lessee who makes the covenant omits all mention of his assigns and thinks only of himself. In that case — See how- (<*)■ If the covenant has to do with something not in existence at the ever, Mins- time the lease is made, the assignee is not bound. hull v. That is precisely the case of Spencer v. Clark. The brick wall was \y(tfC€Sy 2 H. & N. LEADING CASES MADE EASY. 85 " not in existence at the time the lease was made," and I am not aware that it had any subsequent existence. (b). But if the covenant has to do with something which is in existence at the time the lease is made, and is part of the demised lauds, then the assignee is bound. If, tor example, Smith had covenanted to repair the house during the term, Clark would have been liable to perform that covenant. The house was in existence at the time the lease was made, and it was of course part of the demised lands. 2. Now suppose the lessee who makes the covenant covenants for his assigns as well as for himself. (a). The assignee is of course liable in case (b) of 1. A mild exercise of a fortiori reasoning will show that this is so. If an assignee is bound when he is not named, much more is he bound when he is named. (b). But the assignee is also bound in case (a) of 1, provided that what is to be done is to be done on the demised premises. Clark, for instance, would have had to build the wall if Smith had covenanted for his assigns. (c). The assignee is not liable when the lessee's covenant is collateral to the lands demised. If the lessee covenanted to build a dissenting chapel in the next parish, very well, let him go and do it ; there is no great harm in a dissenting chapel. But such a covenant will not bind the lessee's assigns, for it has nothing to do with the demised lands. Descending from the general to the particular, let us see what covenants sufficiently " touch and concern " the demised land so that their benefit or burden runs with it : — 1st. All implied covenants do. For example, the word " demise " implies a covenant for quiet enjoyment, so as to give the assignee of the lessee a right of action against the lessor if he is interrupted in the enjoyment of his lease. 2ndly. Whether any given express covenant runs with the land is of course a question for the court. Covenants to repair, to cultivate in a particular manner, to reside on the premises, to abstain from carrying on a particular trade, have all been held to run with the land, and the assignees to be responsible for their breach. On the. other hand, a covenant by the lessor of a beer-shop not to build or keep any house for the sale of beer within half a mile of the demised premises has been held not to run with the land. Thomas' v. It is to be observed that, even in a case where it is clear that a Ha>/ivard, T T? particular covenant does not run with the land, an assign may be a Excl bound by having notice of it. Cooke v. There may of course be covenants respecting land between persons ChUcott,^ who do not stand to one another in the relation of landlord and 8G LEADING CASES MADE EASY. tenant, and some of those covenants run with the land. Let us divide these covenants into two classes : — 1. Covenants made by a person with the owner of the land to do something in respect of that land. The benefit of such a covenant runs with the land. If a prior were to covenant to sing psalms and spiritual songs, or to dance hornpipes on the lawn before the house on all the wet Fridays of the year, and the owner of the estate were to die, the prior would still be liable to catch an occasional cold, because the right to sue on such covenants runs with the laud to each successive transferee of it, and the heir or devisee could insist on the prior continuing his perform- ances. More usually, however, the covenantor is not a mere stranger like the prior, but the person who conveyed the land to the covenantee, and has covenanted for title. 2. Covenants made by the owner of land to do something in respect of that land. Except, perhaps, in the case of rent-charges, such covenants do not run with the land. If they did, a purchaser might find himself saddled with obligations of which he knew nothing, and which would have deterred him from buying if he had known of them ; and the law looks with disfavour on impediments to the free circulation Keppel v. of property. The owners of some iron-works covenanted for them- Bailey, selves and their assigns to get all the limestone wanted for the iron- 2 Milne . . .° , rt . . . .. , „ & K. See works irom a particular quarry, and to use a particular railroad tor however, fetching it. By and by, the covenantors sold the iron-works to the °2 ^ r defendants, who, to the disgust and impoverishment of the cove- this case nantees, began to lay down a new railroad to rival quarries. The Laker v. covenantees, therefore, took legal proceedings, but unsuccessfully, *" P>Ttv Decause ti^y were told that such a covenant, tho' perfectly binding on the covenantors themselves, did not bind their assignees. It was at one time considered that covenants would not run with an estate to which the covenantee was entitled only by estoppel. It seems now clear, however, that they do where an estate by estoppel Cuthbcrt- becomes an estate in interest, and in some other cases. son v. lrviiuj, 4 H. & N. Implied Warranty on Letting Furnished House. [50.] SMITH v. MARRABLE. [11 M. & W.] " 5, Brunswick Place, Sept. 19, 1842. "Lady Marrable informs Mrs. Smith that it is her LEADING CASES MADE EASY. 87 ill termination to leave the liou.se in Brunswick Place as soon as she can take another, paying a week's rent, as all the bedrooms occupied but one are so infested with bugs that it is impossible to remain." And in pursuance of this determination the Marrables moved out, and Smith went to law with them, alleging that as they had taken the house for five weeks they had no business to leave in this summary fashion, bugs or no bugs. The Marrables, on the other hand, successfully con- tended that it is an implied condition in the letting of a furnished house that it shall be reasonably fit for habita- tion, and that, if it is not fit, the tenant may quit without notice. The famous bug case, after having been spoken disrespectfully of for many years, has in these latter days been expressly affirmed by the case of Wilson v. Finch Hatton, where its principle was applied 2 Ex. Div. to stinks arising from defective drainage. It is to be observed that it is only in the case of furnished houses that reasonable fitness is an implied condition. In general, there is no such implied covenant by the lessor of land or houses, nor even that the house will endure during the term. Fraud and deceit, however, may make a difference. Licences. WOOD v. LEADBITTER. [51.] [13 M. & W.] Mr. Wood always made a point of seeing the Leger. But, while he was in the Grand Stand enclosure at the Doncaster races in 1843, with a four days' ticket, for which he had paid a guinea, in his pocket, an official came up to him, and, " in consequence of some alleged mal- practices of his on a former occasion connected w r ith the turf," requested him to leave, adding that, if he did not, 88 LEADING CASES MADE EASY. it would be his painful duty to turn him out. Mr. Wood — bookmaker, welsher, or whatever he may have been — did not see it, and stoutly refused to budge an inch, where- upon Leadbitter, by order of Lord Eglintoun, the steward of the races, took him by the shoulders and dragged him out. For this assault, as he called it, Mr. Wood now brought an action, maintaining that he was on the Grand Stand by the licence of Lord Eglintoun, inasmuch as that nobleman had sold him a ticket, and that such licence was irrevocable. It was held, however, that such a licence was not irre- vocable, and that Lord Eglintoun had a perfect right, without returning the guinea, and without assigning any reason, to order the plaintiff to quit the enclosure, and, if necessary, to have him forcibly removed. Wood v. Leadbitter goes no further than to establish that a mere licence is revocable, the reason being that such a licence confers no interest in land, but only renders lawful what would without it be a trespass. Such a licence may be revoked, not merely by express words, but by any act of the grantor which shows his unwillingness or inability to continue the licence. Locking a gate, for instance, would operate as a revocation of a licence to use a road, and so would the selling of a field to which the licence related. Of course, if the agreement was regular, an action for damages lies on the licence being revoked. But if the licence is more than a mere licence, if it comprises or is connected with a grant, then the person who has given it cannot revoke it so as to derogate from his own grant. Thus, if a person sells goods on his own land, and gives the vendee a licence to come and take them, he cannot revoke the licence, and the vendee would be justified in breaking down the gates and entering to take the goods. Tho' a licensee has no title as against his licensor, it is not so clear that he may not sue a third person who interrupts him in the Nuttall v. enjoyment of his licence. Bracewell, f-^ Q cage Q f % v g^ Pancras Assessment Committee may be T "R ^'R'v and Corby re f erre< l to as to the difference between occupiers and licensees. It v.HiU,4:C. was a case in which they tried unsuccessfully to rate the ubiquitous B., N. S. fy[ r _ "Willing (he is welcome to this advertisement) in respect of some 2 Q. B. D. noar( ii n g S which somebody allowed him to set up on his land for advertising purposes. /,. % to • r v^^ v~v -"M LEADING CASES MADE EASY. 89 Contracts Contrary to Public Policy. EGERTON v. BROWNLOW. [52.] [4 H. L. Cas.] The seventh Earl of Bridgewater recognised the great truth that a duke is a bigger man than an earl. Tho' not fortunate enough to do so himself, he resolved that one of his clan should win and wear the strawberry leaves, and with that great object in view he sat down and made his will. He left immense estates to Lord Alford and his heirs, but expressly provided that, if Lord Alford died without being made a duke, they should go over. Lord Alford was not made a duke, but it was held nevertheless that the estates did not go over, as the condition subsequent which the earl had imposed was contrary to public jjolicy and void. '"May I not do what I will with mine own?" Certainly; but you must observe one wholesome maxim, sic utere tuo ut alienum non laedas. "Every man," says Lord Truro, in Egerton v. Broivnloiv " is restricted against using his property to the prejudice of others." And as a man is bound to use his own so as not to injure individuals, so he is under the same obligation towards the State, which is a collection of individuals. Public policy means " the public good recognised and protected by the most general maxims of the law and of the constitution," and on this " public policy " or " public good " Egerton v. Brownloiv is an important case. It was considered that the condition violated that public policy because it would be " mis- chievous to the community at large that every branch of the public service should be besieged by persons who, at the peril of losing their estates, were making every effort to obtain offices for which they might be unfit, and to procure titles and distinctions of which they might be unworthy," and because the common law hates capricious conditions. It is to be observed that in dealing with cases of this kind the " courts are not distributing a kind of equity differing with the length of each judge's foot, but are acting on certain well-known principles 90 Bolton v. Madden, L. R. 9 Q. B. Brown v. Brine, 1 Ex. Div. LEADING CASES MADE EASY. and maxims (e.g., Salus iwpvli suprema lex, Nihil quod est incon- veniens est licitum, &c). If this were not so, the judge would he dangerously invading the province of the legislator, and optimus est judex, says the maxim, qui minimum relinquit arbitrio suo ; optimus judex qui minimum sibi. The student may with advantage refer to two recent cases on public policy. In one of them the plaintiff and defendant were both subscribers to a certain charity, the objects of which were elected by the subscribers with votes proportioned to the amount subscribed. The defendant was anxious on one occasion that a particular man should be elected, so, to compass his object, he agreed with the plaintiff that if the latter would give twenty-eight votes, for the candidate at this election, he (the defendant) would at the next election give twenty-eight votes for anybody the plaintiff wished. It was urged that this agreement was void as against public policy, but the judges, while strongly disapproving of the transaction, held that it was not. In the other case the plaintiff had seduced a man's wife, and had then entered into an agreement with the husband that, if the latter would keep the affair secret, the former would not enforce payment of a certain bond. The husband died, and, perhaps, thinking the secret had died with him, the plaintiff sued on the bond. In answer to the claim, the executor pleaded the agreement ; but the plea was held bad on the ground that there was no valid consideration for the plaintiff's promise. Illegal Contacts. [53.] COLLINS v. BLANTERN. [2 Wils. notes. There are, however, others, such as government bonds, dock- warrants, King of Prussia bonds, and the like. It is probably the fact that no instrument in England can become negotiable except by the law merchant or by statute. In 1872 a company called the Credit Foncier of England issued a debenture for £100 payable to bearer. By and by, and after a robbery, this apparently negotiable Crouch v. instrument got into the hands of a Mr. Crouch, who sued on it ; but Credit it was held that the company were not bound to pay it, as they had ^".^'^ no power to issue a negotiable instrument of a novel kind. This L. R. important decision, however, must be taken subject to the later cases 8 Q. B. of Goodwin v. Robarts, where the scrip of a foreign government, 1 App. Ca. issued by it on negotiating a loan, was held to be a negotiable instru- ment ; and Rumball v. Metropolitan Bank, where, usage having been 2 Q. B. D. 112 LEADING CASES MADE EASY. proved, scrip certificates of shares in a banking company were held to he negotiable. Ingham v. An instrument may be negotiable, tho' it has not been issued by Primrose, t ne party who made it ; where, for instance, an acceptor has torn up N. S. See * ne ^ill with the intention of cancelling it, and the drawer has however, carefully pasted the pieces together, and indorsed it away. One Baxendak, ca nnot ^g t 00 careful about the destruction of a cancelled bill or v. Bennett, . 3 Q. B. D. cheque. Another exception to the rule that no one can acquire a title to a chattel personal from a person who has himself no title to it exists in the case of a sale in market overt. The purchaser under such circumstances is protected, and may keep stolen property (not being a horse) even against the true owner. If, however, the thief has 24 & 25 been prosecuted to conviction, it is different : an Act of Parliament Vict. c. 96, expressly provides that in that case the property stolen shall be s. 100. restored to the true owner. But the construction placed on this Act is that it applies only to cases in which possession has been obtained Lindsay without the property passing. v. Cundy, j n ^} ie country the privilege of market overt applies only to those and ' Moyce P ar ^ cu l ar days and places which may happen to be specified by charter v. Newing- or prescription. But in London it applies to every week-day (between ton. ,4 Q. sunrise and sunset) and every shop. The sale, however, must be of seeBabcock sucn articles as are usually dealt in at the shop. If a jeweller sold a v. Lawson, pair of boots, for instance, the sale would not be within the privilege; 4 y. 13. D. j£ seemg a doubtful point whether the privilege covers only the sale ee ', ow " from shop-keeper to stranger, or extends also to the sale from stranger Taylor v. to shop-keeper. Most text-writers assume, somewhat hastily, the Chambers, former view. Cro. Jac, Lyons v. De Pass, 11 A. ft K, and Crane v. Lond. Docks Co., 5 b. & s. Notice of Dishonour. [64.] BICKERDIKE v. BOLLMAN. [1 T. R. k S. L. C] The effect of this case (the narrative of which is too complicated to be worth detailing) is this : — Spend fast being hard up for money, and knowing the weak good- nature of his friend Lighthead, asks him to accept a bill of exchange for him, assuring him that he will never be LEADING CASES MADE EASY. \\\ % called on to pay it, and that it is really only a formality. Lighthead consents, and tho' he gets no consideration whatever for it, accepts a bill drawn on him by Spendfast. The bill finally gets into the hands of Thriftman as holder, and he presents it to Lighthead for payment. Lighthead, of course, dishonours the bill, and uses strong language. Such being the state of the parties, Bickcrdike v. Bollman decides that Thriftman, the holder, can sue Spendfast, the drawer, without having previously given him notice that Lighthead, the acceptor, has dishonoured the bill, the reason being that the drawer never had any effects in the hands of the drawee, and therefore could not lose anything by notice not being given him. ORR v. MAGINNIS. [65.] [7 East.] Maginnis was the captain of a ship engaged in the African trade, and Orr and Co. supplied him with some naval stores. By way of payment the captain drew a bill, payable at ninety days' sight, on Mullion and Co., dated January 25th, 1802, at which time he had funds in their hands. In July, however, when the bill was presented to them for acceptance, they had no funds of the drawer in their hands, and, like wise men, refused to accept. When the bill became due (in October) it was presented for payment and again refused. No notice was given to the drawer, and in an action against him by Orr and Co. their omission to give him such notice was held fatal to their success. The theory on which a bill of exchange rests is that the drawee has in his possession certain effects of the drawer. Those effects the drawer will naturally wish to remove when the drawee shows by dishonouring the bill that he does not mean to pay their I 114 LEADING CASES MADE EASY Foster v. Parker, 2 C. P. D. Rucker v. Hitler, 16 East. Blackham v. Doren, 2 Camp. Cory v. Scott, 3 B. & A. Hammond v. Dufrene 3 Camp., and Thackray v. Blackett 3 Camp. j4Z?c»i v. Edmund- son, 2 Exch. Sharp v. Bailey, 9 B. & C. price. It is for this reason that notice of dishonour is necessary. Obviously, then, when the drawer, as a fact, has no effects in the hands of the drawee, and never had, it is no hardship on him that he should receive no notice of dishonour. He has no effects to with- draw, and he was a sanguine man if he expected that his accommo- dation acceptor would do otherwise than dishonour. But Bickerdike v. Bollman is "an excepted case, the principle of which is not to be extended." Indeed, Lord Ellenborough, C. J., said in Orr v. Maginnis that he knew that it had been a subject of deep regret with the very learned person who was counsel for the plaintiff in Bickerdike v. Bollman (Chambre, J.) that the old rule requiring notice to be given in all cases to the drawer of the non- acceptance of his bill was so far broken in upon. It is at all events refreshing to find a lawyer regretting that he won his case. In a case tried about three years ago it was held that the principle of Bickerdike v. Bollman cannot be extended to the case of an indorser, unless it is clearly made out that under no circumstance could he be prejudiced by want of notice. Orr v. Maginnis is a strong case to show the necessity of notice in most cases, because at the time of the dishonour the drawer had no effects in the hands of the drawees, and therefore could not be prejudiced by the absence of notice. But there are even stronger cases. If, for instance, the drawer has consigned goods to the drawee which have not arrived, and may never arrive ; if he has funds in the hands of the drawee, but to a much less value ; if he could sue the acceptor or any other party; and, generally, if he has any reasonable expectation that somebody will pay the bill ; he is entitled to notice. The whole period must be looked to from the drawing of the bill till it is due, and notice is requisite if at any time between those points the drawee had effects of the drawer in his hands. On the whole, therefore, if the student should ever rise to the dignity of being the holder of a dishonoured bill of exchange, we would recommend him not to rely on any of the Bickerdike v. Bollman class of excuses, but to give notice whether he thinks the drawer strictly entitled to it or not. Besides, however, the case of the drawer having no effects in the drawee's hands, and never for a moment expecting that the accept- ance would be honoured, there are certain other exceptional circum- stances under which notice is excused. If, for example, the holder goes to the drawer's office during business hours and finds nobody there ; if, in spite of due diligence, he cannot find out where the drawer lives ; if he is prevented by accident or illness ; — in such cases he would be excused. If the drawer makes the bill payable at his own house that is evidence of its being an accommodation bill, and notice is unnecessary. Notice, too, is unnecessary if there has been LEADING CASES MADE EASY. \\% an agreement to dispense with it. Such agreement may be implied, as, for instance, where the drawer told the bolder he would call at the acceptor's and see if the bill was paid. Moreover, a promise Phipson v. to pay is always evidence from which a jury may infer due notice. Kneller, It is to be remarked, however, that knowledge is not notice, and will not do instead of it. Even if the drawer is perfectly well acquainted with the fact that the bill has been dishonoured, he is Solarte v. still entitled to notice from the holder. The holder cannot excuse Palmer, himself by saying it was unnecessary to tell the man what he already ^ j?''* knew. Nor is it sufficient merely to ask for payment ; the fact of Uy v. Case, the dishonour must be distinctly notified to the drawer. It is not 4 B. & C. necessary, however, that the notice should be in writing. In a case ■" " se 5 f0 often referred to, Parke, B., said that in every notice of dishonour 2 m. & W. three facts must be distinctly conveyed to the mind of the person entitled to the notice, viz. : 1. That the bill was presented when due ; 2. That it was dishonoured ; 3. That the party addressed is to be held liable for the payment °* xt - Lewis v. Gompertz, 6 M. & W. MASTER v. MILLER. [66.] [2 H. Bl. & S. L. C] We are not in a position to state whether the Mr. Miller who was defendant in this action was the same Mr. Miller who took the bank-note from the robber, and had a passage • of arms with Mr. Race of the Bank of England. If so, he is one of the most fortunate litigants of whom there is any record. In the former case, it will be remembered, he was a plaintiff, suing on a stolen bank-note. He now appears in the humbler capacity of defendant, having accepted a bill of exchange, and resisting payment, on the ground that it has been altered since acceptance. It isn't the same bill, he says, and he won't have anything to do with it. The history of the transaction is this. On March 26th, 1788, Peel and Co., of Manchester, drew a bill for £1000 on Miller, payable three months after date to Wilkinson and I 2 116 LEADING CASES MADE EASY. Cooko. This bill they delivered to Wilkinson and Cooke, and Miller afterwards accepted it. Wilkinson and Cooke then indorsed it for value to the plaintiff. But, before doing so, they quietly made one or two little alterations with the object of improving the document. March 20th they changed into March 20th ; and they stuck June 2.3rd at the top to indicate that the bill would become due on that day. These alterations, being to accelerate payment and unauthorized, were held to vitiate the instrument ; — a decision which, tho' obviously perfectly just, bore, perhaps, a little hardly on Mr. Master, who knew nothing whatever of the alterations. [67.] ALDOUS v. CORNWELL. [L. E. 3 Q. B.] In November, 1865, Mr. Cornwell gave his promissory- note to this effect — " I promise to pay Mr. Edward Aldous the sum of £125." By and by Mr. Aldous asked Mr Cornwell to pay the £125. Mr. Cornwell was about to do so when he noticed that two words had been added to the note he had made, so that it now ran " On demand I promise to pay, &c." Mr. Cornwell on this refused to pay, pleading that he " did not make the note as alleged." The result of an action, however, was that he was com- pelled to pay, as the alteration was an immaterial one, all notes which express no time for payment being payable "on demand." " It seems to us," said the court, " repugnant to justice and common sense to hold that the maker of a promissory- note is discharged from his obligation to pay it because the holder has put in writing on the note what the law would have supplied if the words had not been written." The law with its exactness and suspiciousness looks with disfavour on the alteration of written instruments. Even when the alteration LEADING CASES MADE EASY. 117 is made with the consent of both parties (unless made merely to correct a mistake and render the instrument what it has all along been intended to be) there must be a new stamp as for a new contract. One of the earliest, and for a long time the most important case, on the subject of alteration without consent is Pigot's case. That case 11 Co. referred only to deeds, but its principle was alter wards extended to bills of exchange, guarantees, 1m night and sold notes, charter parties, and other instruments. But the part of the second resolution of Pigot's case which says that "if the obligee himself alters the deed, altho' it is in words not material, yet the deed is void," was expressly dissented from in Aldous v. Comwell. Not only does a material alteration by the holder vitiate an instru- ment, but so also does a material alteration by a stranger, and this even tho' the alteration is made without the knowledge of the holder of the instrument. The moral clearly is that one must keep all important documents under lock and key. Alterations by accident (e.g., by a mischievous little boy tearing off a seal, or by rats eating it) or mistake do not affect the liability. In one well-known case it Raper v. appeared that three persons had made their joint and several promis- Sirkbeck, sory-note " with lawful interest." The holder persuaded two of them, . ° i , ' ,, in the absence of the third, to add in the corner, by way of explana- v. Cheney, tion, " interest at 6 per cent." It was held that he could not recover Pal™- ^ ut against the third party, as the note had been materially altered. A g0 v recent case of some importance on the subject is Vance v. Lowther, Cooper, where a dishonest clerk had absconded with a cheque drawn in his HM.&W. master's favour. After altering the date from March 2nd to March " arrmr J- 26th, he passed it to the plaintiff for value. It was held that the Early alteration was material, and invalidated the checpie, so that the 2 E. & B. plaintiff, in spite of having acted prudently and uprightly, could not 1 Ex. Div. successfully sue the drawer. In this case it was laid down that materiality is a cpiestion of law for the Court, and that in deciding it reference is to be had to the contract alone, and not to the surround- ing circumstances. The instrument may be given in evidence for a collateral purpose, altho' vitiated by a material alteration. A landlord once brought an action against a tenant for not cultivating according to the terms of the written agreement between them. The written agreement when produced was found to be stained with an erasure in the habendum, the term of years having been altered from seven to fourteen. As a matter of fact the defendant was a yearly tenant under a parol agree- ment, which incorporated only so much of the written instrument as was applicable to a yearly holding, so it did not matter whether the written agreement said 14 or 140 years. For this reason the instru- ment was admitted in evidence to prove the terms on which the p a i mou th tenant held the land. v. Roberts, 9 M. & \V. [18 LEADING CASES MADE EASY. Warranties, &c. [68.1 LOPUS v. CHANDELOR. [Cro. Jac. & S. L. C] In the days when superstition was rife — for it was half a century before Sir Matthew Hale began to burn witches — it was generally thought that a bezoar stone was a charm against most of the ills of life ; and such stones accordingly fetched big prices. Mr. Lopus had a pardonable desire to be exempt from as many of the ills of life as possible, and went to Chandelor's shop — Chandelor was a jeweller — and paid £100 for a stone that the tradesman distinctly told him was a bezoar. Mr. Lopus went away a happy man, but after a short time, finding he was not so free from the ills of life as he expected to be, his suspicions were aroused. He made inquiries, and discovered that his fancied treasure was not a bezoar at all, and was decidedly fitter for mending the highway than for curing anybody's neuralgia. Under these circumstances, Lopus went to law with the jeweller who had sold him the stone. But he failed, for he was unable to give satisfactory answers to two questions which their lordships put to him, viz. : — 1. Did Chandelor warrant this stone to be a bezoar? " No," replied Lopus, gloomily, " I can't say he exactly warranted it. But he certainly said it was a bezoar." " Very likely," said the court, " but saying isn't war- ranting. You cannot recover in contract." 2. Did, Chandelor, when he told you it was a bezoar, know that it was not ? " How on earth can I tell," replied Lopus, " what the man knew, or did not know ?" LEADING CASES MADE EASY. 119 " Then," said the court, " neither can you recover in tort." The probabilities are, that if Lopus had been a Litigant of to-day, he would have succeeded on both points. He would have hit the tradesman in contract because " every affirmation at the time of the sale of a personal chattel is a warranty if it appears to have been Crosse v. intended as such," and Chandelor's assertion that the stone was a Gardner, bezoar would no doubt be considered sufficient. He would have ^ e< n va J succeeded in tort because the fact that the defendant was a jeweller Stoughton, would be damning evidence that he knew one stone from another. Salk.; and It is often a difficult matter to decide whether the seller intended mar k g " f his representation to be a warranty or not. The test to determine his Buller, J., intention is, did he assume to assert a fact of which the buyer was ln Pasty ignorant ? If he did, he warranted. Two well-known picture-dealing ' 215 ' cases illustrate this distinction. In one of them the seller, at the time of sale, gave the following bill of parcels : — " Four pictures, views in Venice, Canaletto, ,£160." It was held that the jury might very well find that the words imported a warranty that Canaletto had painted the pictures. In the other case, a sea-piece and a fair had been sold, Power v. the former being catalogued as by Claude Loraine, and the latter by i^d^feV Teniers. It was held that, as these artists had lived so long ago, that nobody could be really sure whether any particular painting was by one of them or not, the seller could not be taken to have asserted a fact, but had merely expressed his opinion on the subject ; therefore, he had not warranted. Jeudwine The courts have sometimes considerable difficulty in getting at the *' £ de ' intention of the seller. In oue case the receipt ran as follows : — " Received by Mr. Budd £10 for a grey four-year-old colt, warranted sound in every respect." It was held that this warranty referred only to the soundness, and that the age was mere matter of description. In another case the seller Budd v. of a mare said " he never warranted ; he wouldn't even warrant him- Fairmaner, self;" but the mare was "sound to the best of his knowledge." It ° Bmg. turned out that the mare was unsound, and that the seller knew it. It was held that he must be taken to have warranted that the mare was sound to the best of his knowledge. Wood v. The vendor may, of course, place limitations on the warranty he Smith, gives. At a horse repository, for instance, there was a notice stuck ' J' up on a board to the effect that warranties given there should remain in force only till twelve o'clock the next day, unless before that time the horse sold was proved to be unsound. It was held that purchasers were bound by this notice D . J Bywater v. Richard- son, 1 Ad. &E. 120 LEADING CASES MADE EASY. Warranty must be during Treaty for Sale. [69.] HOPKINS v. TANaUERAY. [15 a. b.] Mr. Tanqueray advertised his horse " California " for sale at Tattersall's. The day before the sale, happening to go there, he found his friend Hopkins kneeling down and carefully scrutinizing "California's" legs, whereupon he remarked, "My dear fellow, you needn't examine his legs ; you have nothing to look for ; I assure you he's perfectly sound in every respect ;" to which Hopkins replied, "If you say so I am perfectly satisfied," and immediately got up. The next day Hopkins attended the sale, and bought the horse, having, as he said, determined to do so because of Tanqueray's positive assurance that he was sound. There was no written warranty, and it was admitted that when Tanqueray said the horse was sound he quite believed it was. Hopkins now sought to make out that Tanqueray's assertion on the day before the sale was equivalent to a warranty. It was held, however, that that assertion formed no part of the contract of sale, and therefore did not amount to a warranty. The plaintiff made no imputation of fraud here. He sued in con- tract nut in tort, his point being that tho' the auctioneer had put the horse up without warranty, what the defendant had said to him the day before the sale amounted to a private warranty. The reason why this view was not adopted was that Tanqueray's words on that occasion formed no part of the contract ; and a warranty is essentially part of the contract, and must be given, if at all, at the time of the sale. So, too, a warranty given after a sale is void unless there is a new consideration. If a man after he has sold a horse warrants the pur- chaser that it is sound, that warranty will not be binding on him, unless the purchaser does or suffers something more as a consideration ; LEADING CASES MADE EASY. 121 the first consideration being exhausted by the transfer of the horse witJwut a warranty. Rmcorla v. When the terms of a contract have been reduced to writing, no oral 3 n 13 ' representations can be relied on as a warranty. During some nego- tiations for the sale of a ship, the seller represented her as being copper-fastened. She was not so described, however, in the written contract that was afterwards entered into ; and it was held, therefore, that the unfortunate purchaser had received no warranty of the vessel's being copper-fastened. " I hold," said Gibbs, J., " that if a Pick< ring man brings me a horse, and makes any representation whatever of his 'v-Dowion quality and soundness, and afterwards we agree in writing for the purchase of the horse, that shortens and corrects the representations ; and whatever terms are not contained in the contract do not bind the seller, and must be struck out of the case." General Warranty does not cover obvious Defect. MARGETSON v. WRIGHT. [70.] [7 Bing.] Wright sold Margetson his horse " Sampson," warranting the said horse to be " at this time of sound wind and limb." In spite of this warranty " Sampson," — as Wright informed Margetson, and as was obvious, — was suffering from a splint. The jury expressly found " that altho' the horse exhibited no symptoms of lameness at the time when the contract was made, he had then upon him the seeds of unsoundness arising from the splint." But some splints cause lameness and others do not, and at the time of the warranty it was entirely uncertain what would be the issue of Sampson's splint. The question was whether a general warranty like the above extends to obvious defects whereof the consequences are uncertain, and it was held that it does, and that Wright was therefore liable to Margetson. 122 LEADING CASES MADE EASY. The rule is that a general warranty does not extend to obvious defects. If I sell you a horse warranting that it is sound and perfect in every respect, when we can both of us see that it has no tail, you cannot bring an action against me for breach of warranty on the ground of the missing appendage. On this rule Margetson v. Wright engrafts the exception that where the defect is obvious, and yet not of a permanently injurious character, it shall be covered by a general warranty. A person who takes a horse with a warranty is not bound to use extreme diligence in discovering defects. This was decided in a case in which a man had bought a horse with " an extraordinary convexity of the corner of the eye," which produced short-sightedness, and made Holliday the animal liable to shy. \l organ, i^g leading case as to the meaning of the word " soundness" in a warranty is generally considered to be Kiddell v. Burnard, where it was held that it is not necessary to constitute unsoundness that the horse should be permanently unfit for use ; it is sufficient " if at the time of the sale the horse has any disease, which either does diminish the natural usefulness of the animal so as to make him less capable of work of any description, or which in its ordinary progress will diminish the natural usefulness of the animal, or if the horse has, either from disease or accident, undergone any alteration of structure that either does at the time, or in its ordinary effects will, diminish the natural usefulness of the horse, such horse is unsound." 1 E. & E 9 M. & W. Implied Warranty of Title. [71.] MORLEY v. ATTENBOROTJGH. [3 Exch.] The defendant in this case was the eminent pawn- broker of that name. A person named Poley having hired a harp of Messrs. Chappell, music sellers, pledged it with the eminent firm for £15 15s. on the terms that if the sum advanced were not repaid within six months they should be at liberty to sell it. The harp not being re- deemed within the stipulated time, Attenborough sold it to the plaintiff. All this came to the ears of Messrs. LEADING CASES MADE EASY. 123 Chappell, who got back their harp from Morley ; and that gentleman, to recoup himself, now brought an action against the pawnbroker, alleging that the harp was sold to him with an implied warranty of title. This view, however, did not prevail, for the judges decided that in the absence of an express warranty all that the pawn- broker asserted by his offer to sell was that the thing had been pledged to him and was unredeemed, not that he was the lawful owner. Morley v. Attenborough is supposed to be the chief authority for the rule that on the sale of a chattel personal there is no implied warranty of title. Supposing there really to be such a rule, which is perhaps a moot point, it may be said to be pretty well " eaten up Per Lord by the exceptions." For example, the sale of goods in a shop or in Campbell, a warehouse imports an implied warranty of title. The case of Marry at ' Eicholz v. Bannister, where a Manchester job warehouseman in his 17 Q. B. warehouse sold the plaintiff a quantity of woollen goods which he 17 0. B., described as "a job lot just received by him," is the leader of the exceptions ; and the effect of that case is, as Mr. Benjamin says, to make the rule really this. " A sale of personal chattels implies an affirmation by the vendor that the chattel is his, and therefore he warrants the title, unless it be shown by the facts and circumstances of the sale that the vendor did not intend to assert ownership, but only to transfer such interest as he might have in the chattel sold." Benj. Sale s One of the latest cases is Bagueley v. Hawley. The tenants of a ° , " , '» Staffordshire colliery would not or could not pay a poor-rate. A p. 523. ' distress, therefore, was made upon them, and, amongst other things, a big boiler was seized, but was not removed. The defendant bought it at a public auction, and then sold it at an advanced price to the plaintiffs, giving them full information as to where it was and how he came to have the right to sell it. The mortgagees of the premises prevented the plaintiffs from removing this boiler, and so the latter went to law with the defendant for an alleged implied warranty of title. In this enterprise, however, they were not successful, in spite of Eicholz v. Bannister. Chiefly on the authority of Morley v. Atten- borough, it was decided that the defendant had entered into no such engagement as was suggested. " I consider the general rule to be," said Bovill, C.J., " that upon the sale of goods there is no warranty of title implied by law ; and I do not find any evidence or proof of any circumstances to take this case out of the ordinary rule." 124 LEADING CASES MADE EASY. Implied Warranties. [72.] JONES v. JUST. [L. R. 3 Q. B.] Jones and Co., Liverpool merchants, agreed to buy from Mr. Just, a London merchant, a number of bales of Manilla hemp which were expected to arrive in some ships from Singapore. The hemp did arrive, but, when it was examined, it was found to be so much damaged that it would not pass in the market as Manilla hemp ; and Jones and Co., who had paid the price before the ships arrived, had to sell it at 75 per cent, of the price which similar hemp would have realized if undamaged. This was an action by them against the seller, who was admitted to have acted quite innocently in the matter, to recover the difference ; and it was held that he must pay it, on the ground that in every contract to supply goods of a specified description, which the buyer has no opportunity of inspect- ing, the goods must not only correspond to the specified description, but must also be saleable or merchantable ' under that description. The maxim caveat emptor generally applies as to the quality of goods sold, and unless there is an express warranty there is no warranty at all. But a warranty is implied in the following cases : — 1. When goods are sold by a trader for a particular purpose of which he is well aware, — e.g., copper for sheathing a ship, — they Gray v. must be reasonably fit for the purpose. o°P \ A case often referred to is Bigge v. Parkinson, where a provision Jones v. dealer had undertaken to supply a troop-ship with stores for a voyage Bright, to Bombay, guaranteed to pass the survey of certain officers, but m °' with no warranty of their being fit for the purpose. It was held, however, and in spite of the guarantee, that such a warranty must he implied. LEADING CASES MADE EASY. | ->;, The implied warranty of tin's class covers, it has been held, latent undiscoverable defects. Randall v. 2. When the contract is to furnish manufactured eoods, they must Newton, be of a merchantable quality. , ' 9. In the case of a sale by sample, there is an implied undertaking /.' ;!/'!,'!, ,l\ that the sample is fairly taken from the hulk. 6 Taunt. But no further warranty (unless it would have arisen if the sale had not been by sample) is implied. In the well-known case of Par- Heiflyutt v. kinson v. Lee the defendant sold the plaintiff a quantity of hops by j "'*""' sample. The hulk fairly answered to the sample ; but both sample 7 0. P. and bulk had a latent defect, which made the purchase useless to the 2 East, plaintiff. It was held that there was no implied warrant}' that the hops were merchantable or good for anything. 4. The custom of a particular trade may raise an implied warranty. Jones v. 5. Under the circumstances of the leading case. That is to say, t%'.'" ' "' where goods are sold by description, and the buyer has not seen them, there is an implied warranty, not only that they answer the descrip- tion, but that they are merchantable. As Lord Ellenborough graphically said in one of the earliest cases on the subject, "The purchaser cannot be supposed to buy goods to Gardiner lay them on a dunghill." v. Gray, " . _, , .4 Camp. 6. By the Merchandise Marks Act, 1862, a warranty of genuine- 2 c «, og ness is to be implied from a trade-mark or description. Vict. c. 88, In a very recent case the question arose (not for the first time) ss - 19 & 20. whether, on the sale of meat, there is an implied warranty that it is fit for human food. But the buyer had selected the meat himself in the market, relying on his own judgment, and so it was held that, however desirable it may be that the public should not be poisoned, there was nothing to take the case out of the ordinary rule that, on the sale of a specific article, where the purchaser has an opportunity of inspection, and the seller is not the manufacturer, there is no implied warranty." Smith v. A curious case on implied warranty is Thorn v. London. The Baker, 40 Corporation of London wanted to take down Blackfriars Bridge and f, J ,n,^ v j n ,V build a new one. Accordingly they prepared plans and a specifica- Emmer. tion, and asked for tenders. A Mr. Thorn contracted to do the work, to " v - and set about it. When he had got some way, however, it turned out ~ } ^ «l jj that a part of the plan, which consisted in the use of caissons, could 1 &px). Ca. not be adopted, and finally Mr. Thorn found it necessary to go to law with the corporation for the loss of time and trouble occasioned by the failure of the caissons. It was held, however, that there, was no implied warranty that the bridge could be built according to the plans and specification, and that the defendants were not liable. 120 LEADING CASUS MADE EASY. Warranties and Representations. [73.] BEHN v. BURNESS. [3 B. & S.] This was an action by a ship-owner against a charterer for not loading. In the charter-party the plaintiff had described himself as " owner of the good ship or vessel called the Martaban, of 420 tons or thereabouts, now in the port of Amsterdam." Unfortunately the good ship the Martaban was not just then " in the port of Amster- dam ;" and the question was whether the words were a warranty or merely a representation. It was held that they were a warranty, and therefore that the plaintiff had not fulfilled his part of the contract. The question of whether warranty or representation is one of in- tention, and to get at the intention all the circumstances must be looked at. Of course, when a representation turns out to be false, an action for damages lies on it, but the breach of a representation has not the same effect as the breach of a warranty in putting an end to the contract. If a ship is described in the charter-party as being A. 1, that amounts to a warranty of the class ; but it is only a warranty that the ship is so classed at the time of the contract, and is not bruken Hurst v. by the ship's losing the class before arrival at the port of loading. Usborne, ^ n i m p 0r t an t case which was decided about the same time as lo C x>. . . 10 C B Behn v. Burness is Bannerman v. White, an action by a hop-grower N. S. against a hop-merchant for the price of hops sold to him. The Burton brewers, rightly or wrongly, had got it into their heads that the quality of their beer had deteriorated through the employment of sulphur in the cultivation of hops, and had the year before sent a circular round to all the growers saying that they wouldn't buy any more hops which had had sulphur applied to them. This being so, at the very commencement of the negotiations between the plaintiff and the defendant, the latter asked the former if any sulphur had been used, adding that, if any had, he must decline to consider any LEADING CASES MADE EASY. [27 offer. The plaintiff replied that none had heen used, and so the defendant agreed to purchase the year's crop. As a matter of fact, the plaintiff had used sulphur to about five acres of the hops (the whole growth being 300 acres), having done so for the purpose of trying a new machine called a sulphurater ; and had afterwards mixed the sulphured and imsulplmred hops all up together. The jury found that the hop-grower had not acted with intent to deceive, and that the affirmation that no sulphur had been used was intended by the parties to be part of the contract of sale, and a warranty by the plaintiff. On these facts it was held that the defendant was entitled to repudiate the contract. The following remarks from Sir W. Anson's "Law of Contracts" p. 138. may be usefully quoted : — " The determination of the courts to exclude representations from affecting a contract unless they form a part of its terms is an instance of the practical wisdom which marks the English Law of Contract. The process of coming to an agreement is generally surrounded by a fringe of statement and discussion, and the courts might find their time occupied in endless questions of fact if it were permitted to a man to repudiate his contract, or bring an action for the breach of it, upon the strength of words used in conversation preceding the agreement. When, therefore, the validity of a contract is called in question, or the liabilities of the parties said to be affected by reason of representa- tions made at the time of entering into the contract, the effect of such representations may be said to depend on the answer that can be given to three questions : — " 1. Were the statements in question a part of the terms of the contract ! " 2. If not, were they made fraudulently % " 3. If neither of these, was the contract in respect of which they were made, one of those which we will call for convenience contracts uberrima fidei ? " If all these questions are answered in the negative, the representa- tion goes for nothing." Necessaries for Infants. PETERS v. FLEMING. 1 74 J [6 M. & W.] Mr. Fleming was one of those fast undergraduates whose efforts have contributed so liberally towards the 128 LEADING CASES MADE EASY. settlement of the law of " necessaries " for infants. During his career at Cambridge, and while under age, he became indebted to a tradesman of the town for rings, pins, a watch, and various other articles, which were supplied to him on tick. Papa, who was a wealthy M.P., and could easily pay if he liked, wouldn't look at the bill ; and so the tradesman brought an action against the young man himself, when he came of age, and, — perhaps rather to his own surprise, — got his money. " The true rule," said Parke, B., " I take to be this, that all such articles as are 'purely ornamental are not necessary and are to be re- jected, because they cannot be requisite for anyone ; and for such matters, therefore, an infant cannot be made responsible. But, if they are not strictly of this description, then the question arises, whether they were bought for the necessary use of the party in order to support himself pro- perly in the degree, state and station of life in which he moved ; if they were, for such articles the infant may be responsible." [75.] RYDER v. WOMBWELL. [L. R. 4 Ex.] Mr. Wombwell was the younger son of a deceased Yorkshire baronet, and "moved in what is called the highest society." During his minority he had £500 a year, and when he came of age would be entitled to a lump sum of £20,000 ; so that he may be said to have been, as times go, in pretty affluent circumstances. He was a friend of the Marquis of Hastings, and occasionally rode races for that unfortunate young nobleman. While yet a minor he ordered of Ryder and Co., the jewellers, a silver gilt goblet of the value of £15 15s., and a pair of studs of the value of £25. The studs were for the boy's own LEADING CASES MADE EASY. 129 wearing, but the goblet was intended, with a loving in- scription, as a present to the Marquis. To an action for the price of these articles, Wombwell, considering perhaps that he had been imposed on, set up the defence of "in- fancy," to which the reply was " necessaries." At first the judges thought the studs were " necessa- ries," tho' not the goblet ; but it was finally resolved that neither the studs nor the goblet were necessaries ; so, as they would have said in the good old times, Postea to the defendant. The law considers it extremely desirable that in every contract both parties should know what they are doing ; in other words, that there should be a concentration of minds on the same point. The experience of the law, moreover, teaches it that young men, — espe- cially undergraduate young men, — are extremely foolish, and need its watchful protection none the less because they scorn the imputa- tion of infancy, and regard themselves as very knowing men of the world. It would be too much to say that infants should not be allowed to enter into a contract at all ; they might perish with hunger. But they cannot contract so as to bind themselves for any- thing except " necessaries." Meat, drink, clothes, medicine, and the like, — such things as are essential to human existence, — are what the lay mind would under- stand by "necessaries." But in process of time the word has acquired a technical meaning which cannot be ascertained in a particular instance without reference to the cases. Amongst things held to be "necessaries" may be mentioned a servant's livery, a volunteer Hands v. uniform (in perilous times), horse exercise ; while, on the other hand, * ""'• v > ' a chronometer costing £68, cigars and tobacco, and dinners out of i> oa / es v , college have been held not to be "necessary." The result of those Wilson, cases may be said generally to be that in every "necessaries" case this ° ''^ >- question should be asked, "Could the defendant have lived comfort- Prater ably in that station of life which it has pleased, &c, without it?" If 1 Jur. the answer to that question is " No," the article is a " necessary " one. J f eroLes v - .. . Jut hi say, and the young gentleman must pay for it. A fancy dress suit mayHokN. P. be suggested as an article just on the line dividing necessaries from Bryant v. non-necessaries — assuming of course that the infant's position is , V " ° r son. 14 what it should be. L. T., N. S. It is not quite clear whether the defendant in a case of this kind Brooker v. may show, in answer to the plaintiff's claim, that he was already t.',,' . ,. r plentifully supplied with the articles alleged to he " necessaries." It K 130 LEADING CASES MADE EASY. is the better opinion, however, that he can, and that it does not in Bmnbridge t j ie \ eas i ma tter that the plaintiff was ignorant of the fact. inq 2 W. Whether the articles for the price of which the plaintiff sues are Bl. ; and " necessaries " or not, is a question of fact, and therefore for the see Ford v. • y g ut j^ e a ^ ther questions of fact it will not be left to Fothergill . Peake ' them if their finding in the affirmative would be manifestly contrary N. P. C. to the evidence. This is well, because a jury is generally composed chiefly of tradesmen, and their sympathies are naturally with the plaintiff in a " necessaries " case. At law it is no answer to a plea of infancy that at the time of the contract the defendant cheated the tradesman into the belief that he was of full age. In equity, however, fraud is fraud, even in an infant. 37 & 38 By an Act passed in 1874, and called the " Infants Relief Act," Vict. c. 62. contracts by infants for the repayment of money lent, or for goods supplied (not being necessaries), and all accounts stated with infants are declared absolutely void ; and it is also provided that " no action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new conside- ration for such promise or ratification after full age." A curious point lately arose under this Act. A young fellow under twenty-one promised to marry a girl. When he came of age he kept on courting and spooning her as if his sentiments were unchanged, but did not renew his promise. He then — men were deceivers ever — jilted her. In an action by the young lady for breach of promise, it was held that the defendant was saved by the new Act. He had not made a fresh promise, and, by virtue of the Act, he was incapable of ratifying Coxhead v. his old one. In the still later case of Northcote v. Doughty the Mullis, defendant on coming of age had said, " Now I may and will marry C P D y ou as soon as ""■ can >" so tna * t nere was plenty of evidence of a fresh 4 C. P. D. Promise. In a very recent case in Ireland it has been held that an indorsee for value can maintain an action against the acceptor of a bill of exchange, accepted by the latter after coming of age for a debt con- tracted during infancy, and after the passing of the above Act, tho' Belfast not in respect of necessaries. Banking Altho' an infant cannot (except for necessaries) contract so as to Co. v. . . . . Doherty hind himself yet he binds the other party, infancy being " a personal L. K. (Ir.), privilege of which no one can take advantage but the infant bim- Apr. 1879. se if" Thus, if a boy of eighteen and a buxom widow of forty were to agree to marry one another, the boy could go to law against the II olt v. widow, but not the widow against the boy. Ward, A curious point in the law of infancy lately came before the Court 2 otr. LEADING CASES MADE EASY. 131 of Crown Cases Reserved. A person was tried and convicted at the Hull sessions for an offence against the Debtors Act. The point taken by his counsel was that, whereas the prisoner was an infant, the debts were trade debts and not for necessaries, and therefore he had really no creditors amongst whom the sum of money charged against him ought to have been divided. On this ground the conviction was quashed. Seg- v. Wilson, Weekly Notes, Nov. 29th, 1879. Contracts of Lunatics. BAXTER r. PORTSMOUTH. [76. J [5 B. & C] On various occasions between 1818 and 1823 the Earl of Portsmouth hired carriages and horses from the plaintiff, and thereby incurred the bill for which this action was brought. It was proved that the plaintiff had no reason to suppose his lordship to be of unsound mind ; and that the carriages, &c, were constantly used by him, and were suitable to his rank and station. This being so, the plain- tiff's claim was not defeated by its having been found in 1823 by a commission that the Earl " then was, and from the 1st of January, 1809, continually had been of unsound mind, not sufficient for the government of himself." Two propositions seem clear : — 1. A lunatic is never liable on an executory contract, whether for necessaries or not. But the better opinion is that such a contract is Matthews not void but voidable, so that, if reason resumes its sway, it may be v - Baxter, confirmed. 2. A lunatic is sometimes liable on executed contracts. He is liable on executed contracts for necessaries, if no advantage has been taken of him, even tho' the person supplying him with them was aware of his melancholy condition. If it were not so, " the consequence might be that, notwithstanding the possession of large estates, such a person might be left to casual charity, thrown upon the parish, or exposed to starvation." But he is also liable on all fair and bond fide executed contracts in the ordinary course of life (e.g., for the eale K 2 132 LEADING CASES MADE EASY. of an annuity) when the other contracting party believed himself to be dealing with a sane man, and the transaction has gone so far that Molton v. the status quo mite cannot be restored. iT? 10 ^*' I* nas lately been decided that "where a principal holds out an Drew v agent as having authority to contract for him, and afterwards becomes Nunn, 40 lunatic, he is liable on contracts made by the agent after the lunacy L.T.,N.S.; w ith a person to whom the authority has been so held out, and who Chapped v ^ad no n °tice of the lunacy ;" but that "the lunacy of a principal, if Nunn, an so great as to render him incapable of contracting for himself, puts an action en( j £ an authority to contract for him previously given to his agent." same defendant in Ireland, 41 L. T., Contracts of Corporations and Appropriation of Payments. [78.] [77.] ARNOLD v. MAYOR OF POOLE. [4 M. & Gr.] Corporations, remarks my Lord Coke in one of his luminous treatises, have neither bodies to be kicked, nor souls to be dealt with by and by. This being so, they can do with impunity things that individuals cannot. Mr. Arnold was a solicitor, and did some work for the Poole corporation about forty years ago. But tho' the corporation had passed a resolution directing the work to be done, and tho' they knew perfectly well of its progress, yet when the time came to pay they absolutely declined to do so ; and successfully sheltered themselves beneath the pitiful defence that the contracts of a corporation are not binding unless made under its corporate seal. CLARKE v. THE CTJCKFIELD UNION. [21 L. J., Q. B.] At a regularly constituted meeting of the Board of Guardians, an order was given to Mr. Clarke to put up LEADING CASES MADE EASY. 133 some w.c.'s in the workhouse, and this order Mr. Clarke forthwith proceeded to execute. When, however, the work was finished, the guardians refused to pay for it, defending themselves on the technical ground that there was no contract under seal. But it was held that sealing was unnecessary, as the purposes for which the guardians were incorporated obliged them to provide water-closets, paupers requiring such conveniences as much as other people ; and, besides, the contract was an executed one, and it would be the height of injustice that the corpora- tion should keep the benefit of the contract while it impugned its validity. Cockburn, C.J., has branded the rule that a corporation can only bind itself by deed as "a relic of barbarous antiquity." But "the l. R. 4 seal is the only authentic evidence of what the corporation has done C. P., 618. or agreed to do. The resolution of a meeting, however numerously attended, is after all not the act of the whole body. Every member knows that he is bound by what is done under the corporate seal, and by nothing else. It is a great mistake, therefore, to speak of the necessity for a seal as a relic of ignorant times." Ludlow v. "Convenience amounting almost to necessity" is the principle on q q & p which the exceptions are founded. In the small matters of every- day life so much formality as the rule requires would be intolerable. Corporations cannot be always sealing any more than Mr. Apollo can always be practising archery. An inferior servant, for instance, may always be engaged by parol : the corporation would be bound by such a contract, seal or no seal. Moreover, when a company is incorporated for trading purposes, it may make all such contracts as are of ordinary occurrence in that trade, irrespective of the magnitude of the particular transaction, without seal ; and contracts on behalf of South of a joint stock company registered under 25 a t an y time before the transitus has ended, ratify the Act of a B'rd v stranger who stops the goods. The great question in most stoppage Brown, in transitu cases is, was the journey at an end or not ? The goods 4 Exch. are on f] ie journey as long as they are in the hands of the earlier as such ; but the carrier may hold them as bailee for the vendee, as when the latter pays him a rent for warehousing them. Fine points often arise in those cases in which the buyer has provided the ship as to whether or not the transitus is at an end. About a couple of years ago a China clay company agreed to sell a Mr. Cock, of St. Austell, a quantity of China clay. Mr. Cock chartered a ship and sent it to the port of loading, and the company put the clay on board. But, Cock committing an act of bankruptcy, it was held that their right to stop was not gone, inasmuch as the clay was in possession of the LEADING CASES MADE EASY. \\~ .master of the ship, not as the purchaser's agent, but as carrier. It was also held that it makes no difference that the ultimate destination of the goods has not been communicated by the purchaser to the vendor. Tho' once a doubtful point, it is now clear that the vendee Ex parte may anticipate the termination of the journey, and so defeat the right y% 8 . evec % } of stoppage by going out to meet the goods. On the other hand, the q q . ji e carrier may not prolong the transit so as to give the vendor an in- Cock, 40 creased right of stoppage. To stop the goods it is not necessary that t "' ' the vendor should lay corporeal touch upon them. It is sufficient if „ w he gives notice to the carrier ; tho' he should take care to give the 2 B. 4 P. notice to those who have the immediate custody of the goods ; or, if to their employers, so that they may have reasonable time to com- municate with such persons. Whitehead The stopping of part of the goods consigned has no effect on the v - 7 jff£~ remainder. On the other hand, the delivery of a part of goods sold & -{y under one entire contract, if such delivery of part was intended to represent the whole (but only if so), will defeat the right to stop in transitu. The most usual way, however, in which the vendor's right Slubey v. is defeated is by assignment of the bill of lading. Generally a vendee ~: e X it ^' cannot stand in a better position than his vendor ; but it is the second an( \ Ex ' rule of Lickbarrow v . Mason that if, while the goods are in transitu, the parte vendee indorses the bill of lading (as Freeman did) to a person who ^ 00 P er takes it in the ordinary way of business (not being for an antecedent McLaren, debt) and in perfect good faith, the vendor's right to stop is at an end. L. R. Ch., He shall suffer (for it is a maxim of law that wherever one of two June > 1H ' y - innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it) rather than the innocent indorsee who has given a valuable consideration and behaved with unimpeachable honesty. It is to be remarked, however, that an indorsee is equally bound with the vendee himself by any condition to which the bill of lading may be subject, as, for instance, if it be indorsed with the condition that the goods are only to be delivered, "provided E. B. pay a certain draft." Barrow v. The point cannot be said to be quite settled, but much the better ~°' es ' opinion is that the effect of stoppage in transitu is not to rescind the contract, but simply to give the vendor a lien on the goods. Thus, See Clay the assignees of the bankrupt purchaser can call upon the vendor to v - Ha/rri- deliver up the troods on pavment of the price. s ? n L ." 1 ° v • l & C, and Wentworth v. Outh- waite, 10 M. & \\. 14S LEADING CASES MADE EASY. Contract to Marry [87.] ATCHINSON v. BAKER. [Peake Add. Ca.] Mrs. Baker was a rich widow ; fair, fat, forty, and in every way calculated to crown the felicity of a man of moderate tastes. She yielded to the persuasions of Mr. Atchinson, a widower of the same age, and promised to marry him. At the time of the promise Mr. Atchinson had all the appearance of being, and no doubt was a sound, healthy, capable man, and the widow congratulated herself on her approaching nuptial bliss. But before the happy day came she was disgusted to find — so she said — that her lover had an abscess on his breast ; and immediately the fever left her. She vowed she would never link herself to a putrid mass of corrupting humanity. Mr. Atchinson brought an action for breach of promise, and the trial elicited some valuable remarks from Lord Kenyon : " If the condition of the parties is changed after the time of making the contract it is a good cause for either party to break off the connection. Lord Mansfield has held that if, after a man has made a contract of marriage, the woman's character turns out to be different from what he had reason to think it was, he may refuse to marry her without being liable to an action, and whether the infirmity is bodily or mental, the reason is the same; it would be most mischievous to compel parties to marry who can never live happily together." Promises to marry, as they are generally made in haste, so they are very often repented of at leisure. It is therefore a very important subject of inquiry — what circumstances will justify me in repudiating my promise, and jilting my young woman 1 Lord Kenyon's remarks obviously go very far indeed. A happy marriage is his aim, and any LEADING CASES MADE EASY. 140 change in the condition of the parties is sufficient to sweep away the promise, and make the person who gave it a free man (or free woman) once more. Unfortunately, however, there is a certain case of Hall v. J Fright which is subsequent to Atchinsonv.Balcer, and not altogether E. B. & E. reconcilable with it. In that case a gentleman being sued on a pro- mise to marry pleaded that since his promise he had become afflicted with a dangerous bodily disease, which had occasioned frequent and severe bleeding from the lungs, and, in short, that he was a totally different man from what he was when he promised. "Non sum quah's eram " was his piteous refrain. But it was held by the Exchequer Chamber (not without considerable division of opinion) that such a plea was no answer to the action. They said he had promised absolutely wdien, if he had liked, he might have promised con- ditionally ; that his illness did not make it impossible to perform his undertaking but only unadvisable ; and that it did not lie in a man's mouth to set up his own unfitness for marriage, for it might have arisen from his own follies and vices ; it was an argument for the woman if she wished to get out of her promise, but she might wish to marry an incurable invalid for the sake of the social position she would gain as his wife and widow. On the other side it was urged that the continuance of such a state of health as made it not improper to marry was an implied condition of the defendant's promise : for that where the performance of a contract depends on life or health, it always is an implied condition that the contractor shall remain alive and well enough for the purposes of the contract. The dignity and sacredness On this of marriage, too, was made something of : "I think," said Pollock, point see C.B., "if the man can say with truth, ' By the visitation of Providence p^fa j J I am not capable of marriage,' he cannot be called upon to many ; E. 4 C. P.; and I think this is an implied condition in all agreements to marry. Robinson v. I think that a view of the law which puts a contract of marriage on ^^ 6 g' x the same footing as a bargain for a horse, or a bale of goods, is not in and Pons- accordance with the general feelings of mankind, and is supported by *? . v - , xx " Spiers, no authority. ' 1 Q. B. D. But tho' (according to Hall v. Wright) a defendant cannot get out of his promise by disparaging himself, he can sometimes by disparag- ing the plaintiff. If, for example, after he has given his promise he discovers that the other party is a person of gross immorality, or, if the promise was induced by material misrepresentations as to the plaintiff's family or position, he has a good defence. The gentleman, too, can always plead that the lady is a prostitute, or the lady that the gentleman is impotent. And it would be a good defence for the woman to show that the plaintiff was a person of a violent temper, and had threatened to ill-use her. It is scarcely necessary to say (but the student should be put on his guard against designing females) that a promise to marry need not be 150 LEADING CASES MA HI-: EASY, evidenced by writing, it having been expressly decided that such a promise does not come within the range of sect. 4 of the Statute of Harrison Frauds. It has, however, been provided by the Legislature that " no Ld R-ivm pl am tiff i n an y action for breach of promise of marriage shall recover a verdict unless his or her testimony shall be corroborated by some 32 & 33 other material evidence in support of such promise." Not long ago a 2 ' ' a woman overheard a conversation between her sister and a man, in the course of which the sister exclaimed, " You always promised to marry me, but you never keep your word ! " Instead of indignantly denying that he had ever made such a promise, the man remained silent, and it was held that this was " material evidence in support " Bessela v. of the promise of marriage within the statute. fffU 1 ' T Attempts are from time to time made — perhaps not very seriously — to abolish the action for breach of promise altogether. Recovery of Money Paid under Mistake, &c. [88.] MARRIOTT v. HAMPTON. [7 T. R. & S. L. C] This case should impress the student with the wisdom of taking care of the receipt on those rare occasions when he pays his tailor's bill. Hampton, possibly, was not a tailor, but he was no doubt a tradesmen of some sort, and in the course of his trade sold goods to Marriott. These Marriott duly paid for and obtained a receipt. But, instead of carefully putting it where he could find it if he wanted it he put it where he could not find it. By and by Hampton, — relying, it may be, on his knowledge of Marriott's care- less gentlemanly habits, — sent in his bill again with the air of a long-suffering and ill-used creditor. Marriott had a distinct recollection of having paid for the trousers, and said so. Hampton, however, challenged him to show paper, and tho' Marriott looked high and low for the document, it could not be found, and, as Hampton brought an action, he was obliged to pay over again. LEADING CASES MADE EASY. 151 But it came to pass that after a while the missing receipt turned up, and Marriott carried it in triumph to Hampton's shop. " Yes," said that respectable tradesman, " it seems right enough, I own ; but excuse me if I say that — well, I have got the money, and I intend to stick to it." Marriott now went to law to force him to repay the money, but the student will be grieved to hear that his efforts were not crowned with the success he deserved. Lawyers must live, of course ; but interest reipublicce ut sit finis litium, and there would be no end to fat conten- tions and flowing fees if everybody could have their cases tried over again when fresh evidence came to light. If I pay money under a mistaken impression that a certain state of facts exists, I can (unless he has a claim in conscience to retain it) recover it from the person to whom I have paid it as money paid without consideration. Ignomntia facti excused. Two persons agreed to dissolve partnership, and one of them paid to the other a sum of money for his share, on the footing of an investigation of the partnership accounts he had made. He afterwards discovered that the profits were not so great as he had supposed them to be, so that he had paid too much for the share. This being a mistake of fact, it was held that, in spite of his carelessness in not having sufficiently looked into the matter, he could recover the sum paid in excess. In another well known case the plaintiff, a Derbyshire Tovmsend attorney, had been employed by the defendant, a London attorney v - Crowd y, (it is edifying this spectacle of diamond cutting diamond), to collect ^ g "' some rents for him near Matlock. .£150 was collected, and the plaintiff sent him a bill, which was in reality an Irish bill, tho' it had all the appearance of being, and both plaintiff and defendant believed it to be, an English one. When this bill was presented by the defendant it was dishonoured ; and the defendant ought then to have given the usual notices of dishonour. But he did not do so, and a month later he wrote to the plaintiff asking him to send the £150 rent, and saying that the bill was no good, as it only had a four shilling stamp on it. On examining the bill, the plaintiff found that this was so, and accordingly sent the £150. But, not long afterwards, he discovered that the bill had been drawn and indorsed in Ireland, and bore the proper stamp for that country ; and so he brought an action against the London attorney to recover back the money. It was held that he was entitled to do so, as he had paid 152 LEADING CASES MADE EASY. M lines v. Duncan, 6 B. & C. Lucas v. Worswick, 1 M. & Rob. Rogers v. lni/ham, 3 Ch. Div. Brisbane v. Dacres, 5 Taunt. Bilbie v. Lumley, 2 East. Cadaval v Collins, 4 A. & E. the money under a mistake of the real facts. So, too, if money is paid under a "blind suspicion" of the facts or in the hurry of busi- ness, it can be got back. But if I pay money with full knowledge of the facts, but mis- taking the law, or, bike Mr. Marriott, by compulsion of legal proceed- ings, I cannot (if it can be conscientiously retained) recover it. Ignorantia juris non excusat. A ship captain brought home in his ship a quantity of treasure, and when he got to England paid over a certain portion of it to the admiral tinder whose convoy he had sailed, not at all in a spirit of gratitude, but believing that he was bound by law to pay it. By and by he discovered that the law did not really compel him to pay it, and he brought an action to get it back. But it was held that he could not get it back, for his mistake had been of the law and not of the facts. In another case often referred to, an underwriter had paid ,£100 upon a policy of insurance as for a loss. He now tried to get it back, saying he had paid it under a mistake, the defendants not having disclosed a material letter, the legal effect of which he did not understand. It turned out to be clear that all the documents had been laid before the under- writer, and his misapprehension of the law was held to be no reason why lie should get the money back. " Every man," said Lord Ellen- borough, " must be taken to be cognisant of the law ; otherwise there is no saying to what extent the excuse of ignorance might not be carried. It would be urged in almost every case." It is to be observed that, to make money paid under compulsion of legal proceedings irrecoverable, the proceedings must be regular, and not a mere cloak for extortion. A person named Collins, who was quite insolvent, bad the impudence to arrest a continental duke for an imaginary debt of £10,000. His excellency was frightened — perhaps he had heard that debtors in England were ordered off to instant execution — and paid £500 for his release. He afterwards brought an action to recover back this money, and was held entitled to do so. Of course, in such a case as this the money could not be " conscientiously retained " by the person to whom it was paid. Suing Before the Day of Performance. [89.] HOCHSTER v. DE LA TOUR. [2 E. & B.] Mr. de la Tour, meditating a tour on the Continent, LEADING CASKS MADE EASY. L53 engaged Hochster as his courier at £10 a month, the service to commence on June 1st. Before that day came, however, Mr. de la Tour altered his mind, and told Hoch- ster he should not want him. Without wasting words or letting the grass grow under his feet, and before June 1st, Hochster issued his writ in an action for breach of contract. For De la Tour it was argued that Hochster should have waited till June 1st before bringing his action, for that the contract could not be considered to be broken till then. It was held, however, that the contract had been sufficiently broken by De la Tour's saying definitely that he renounced the agreement. Generally speaking, no action for the breach of an executory con- tract can he brought till the day of performance arrives. But if one of the parties puts it out of his power to perform it, or expressly renounces the contract, the day of performance need not he waited for. If a young lady agrees to marry me on May 10th, and, in defiance of such agreement, marries Jones on April 1st, I may bring an action against her as soon as I like after April 1st, altho' it is quite possible that before May 10th comes she may be a blooming widow and quite at my service. Similarly, if a man agrees to sell Short v. goods to me on a future day, and before that dav sells them to some- Stone, " Q Q T) body else, I may sue him at once. So, too, of an express renunciation. A few years ago a man pro- mised his sweetheart that, tho' he could not marry her immediately, he would do so the moment his father died. Soon afterwards he repented of his promise, and, in the lifetime of his father, told the lady frankly that he retracted his promise, and would never marry her. Being a strong-minded lady she instantly went to law, and the judges, following Hochster v. De la Tour, decided that she mi"ht regard the contract as broken immediately on the defendant's renouncing it. The renunciation, to rescind a contract, must be pre- Frost v. rise and clear. In Avery v. Bowden (where the defendant was sued Knight, for not having loaded a cargo on board the plaintiff's ship) the court ' ' ' ' said, " According to our decision in Hochster v. De la Tour (to which we adhere), if the defendant within the running days, and before the declaration of war, had positively informed the captain that no cargo had been provided, or would be provided, for him at Odessa, and that there was no use in his remaining there any longer, the captain might have treated this as a breach and renunciation of the contract, and thereupon, sailing away from Odessa, he might have loaded a 154 LEADING CASES MADE EASY. cargo at a friendly port from another person ; whereupon the plaintiff would have had a right to maintain an action on the charter-party to recover damages equal to the loss he had sustained from the breach of contract on the part of the defendant. The language used by the defendant's agent before the declaration of war can hardly be con- sidered as amounting to a renunciation of the contract." It may be remarked that a promise to marry, without any par- ticular time being specified, is a promise to marry within a reasonable time after recp-iest. Discharge of Servants. [90.] TURNER v. MASON. [14 M. & W.] Turner was a housemaid in the service of the defendant, Mason. Her mother became ill and likely to die, and Turner asked her master's permission to go and see her. This, whether afraid of infection, or for what reason we know not, Mason refused; and so the girl took French leave and went. For this disobedience Mason dismissed her, and she now brought an action for wrongful dismissal, urging that it was a moral duty to go and visit a dying mother. Judgment, however, was given for the defendant, on the ground that the girl had been guilty of wilful dis- obedience, for which her master had a right to dismiss her. In addition to the case of wilful disobedience, a servant may be discharged without wages or notice — 1. When he has been guilty of gross moral misconduct. 2. When he does not give proper attention to his master's busi- ness. 3. When he is incompetent for his work ; or Amor v. 4. When he sets up a claim to be a partner. o Ta\ v -A-ltho' the master may not have assigned any one of these reasons ' at the time of the dismissal, and may not even have known that such LEADING CASES MADE EASY. loo reason existed, he is not thereby precludedrfrom relying on one of them when the servant brings his action for wrongful dismissal. Ridgway Tho' in the above eases the servant forfeits his right to wages for the Z' . , "^ c , r " current period, he does not forfeit his righl to wages already accrued ket Co., due. If a man, for instance, is engaged at a salary of ,£50 a month, 3 A. & E. there is a vested right which cannot be affected by subsequent mis- conduct to the £50 at the end of each month. Button v. A word may be said as to the notice which servants are entitled to. ^ fl0 3 S0n > If the hiring is a general one, it is presumed to be for a year, and the 4 q. p # servant cannot be dismissed till the year has expired. Special circum- stances, however, may rebut this presumption, and, if the wages are payable weekly, it may be found a weekly hiring, and a week's notice is sufficient. And even in cases to which the presumption naturally Evans v. applies, custom may entitle the master to discharge before the end of f^' £■ "*• the year. A clerk, for instance, tho' hired generally, can be discharged with three months' notice, and a menial servant (governesses not included in this term) with one. Todd v. It is to be observed that a servant wrongfully dismissed is not to AemcA, receive as a matter of course his full wages for the unexpired term. The amount is to be cut down by his chances of getting other employ- ment, and he ought to do his best to get such other employment. Hartland v. Gen. Exch. Bank, 14 L. T., N. S. Bills of Sale, &c. TWYNE'S CASE. [91.] [3 Rep. & S. L. C] A Hampshire farmer named Pierce got deeply into debt ; and amongst his creditors were two persons named Twyne and Grasper ; to the former he owed £400, and to the latter £200. After repeatedly dunning the farmer in vain, Grasper decided to go to law for his money, and had a writ issued. As soon as Pierce heard of this, he took the other creditor, Twyne, into his confidence, and in satisfaction of the debt of £400 made a secret convey- ance to him of everything he had. In spite of this deed, however,— in pursuance of the nefarious arrangement 15G LEADING CASES MADE EASY. between them, — Pierce continued in possession just as if he had never made it. He sold some of the goods, sheared and marked some of the sheep, and in every way acted as if he were the monarch of all he surveyed and Twyne had nothing to do with it. Meanwhile Grasper went on quietly with his action, got judgment, and consequently the assistance of the sheriff of Southampton, who appeared one day at the homestead with the intention of carrying off in Mr. Grasper's interest whatever he might chance to find there. This proceeding Twyne, who suddenly appeared on the scene, strongly objected to, for, said he, — " every- thing on this farm belongs to me, not to Pierce," and, in proof of his assertion, he produced the deed of conveyance. The question was whether this deed of conveyance was void within the meaning of an Act of Parliament passed in Queen Elizabeth's reign, which provides that all gifts made for the purpose of cheating creditors shall be void. And, for the following reasons, this gift of Pierce's was considered to be just the kind of gift contemplated by the statute : — (1). It was impossible that anybody could really be so generous as Mr. Pierce had proposed to be. He had given away everything he had in the world, even down to the boots he was wearing. Such self-denial could only be the cloak of fraud. (2). In spite of his parade of liberality, Mr. Pierce did not let one of the things go, but used them all just as if they were his own, thereby obtaining a factitious credit in the world. (3). Then, if there was no fraud, why was there so much mystery about it ? Why wasn't the gift made openly ? (4). The gift was made, too, when Grasper had already commenced an action, and evidently meant business. (5). There was a trust between the parties, and trust was only another name for fraud. LEAD IXC CASES MADE EASY. 157 (This reminds one of the little boy who was asked what trade he would like to be brought up to. " Oh," said the bright little man promptly, " the trustee trade, 'cause ever since pa's been a trustee we've 'ad puddin' for dinner.") (6). The deed alleged that the gift was made " honestly, truly and bond fide" and that was a very suspicious circumstance in itself. It is provided by 13 Eliz. e. 5 that all gifts and conveyances, ■whether of lands or chattels, made for the purpose of delaying or defrauding creditors shall be void as against such creditors unless made upon a valuable consideration and bond fide to some person not having notice of the fraud. Now, it is clear that farmer Pierce's gift was for valuable consideration. Why then was it void ? The answer is, because it was not bond fide. It was merely the creation of a trust for the benefit of the honest man himself. It lias recently been decided that a deed by an insolvent conveying his estate to trustees, and containing a clause to the effect that only those creditors shall receive a dividend who within a certain time shall assent to a particular scheme beneficial to the debtor, is fraudu- lent and void within the statute of Elizabeth. Spencer v. The present subject derives its chief interest and importance from } a ( \ e \ -p bills of sale. It is sufficient here to say that a bill of sale is an instrument by which one man purports to grant to another his interest in the goods and chattels specified in such instrument. A bill of sale may be either absolute or conditional. When it is absolute, the grantor ought not generally to remain in possession, as, if he were to become bankrupt, the goods would vest in the grantor's trustee, which the grantee would not like. But if it has been, and continues to be, duly registered, it is no matter whether the grantor continues in possession or not ; it is then valid even against the trustee. When the bill of sale is conditional, no transfer of posses- Sect. 20 of sion is required, such a bill being to all intents and purposes a the Act of mortgage of personalty. For further information about bills of sale ' the student should refer to the Act of 1878, and to the treatises of 41 & 42 Mr. Slade Butler and Mr. D. B. Wilson on the subject. The object of Vlct - c> 3L the Act of 1878 is, as Mr. Slade Butler says, " to give by means of registration information to all persons whom it may concern that a debtor, or a person about to contract debts, has executed a bill of sale, and thereby deprived himself of a portion of his property." The registration is to be within seven days, instead of twenty-one, as formerly ; the necessity of attestation is introduced ; the considera- tion must be stated in the bill ; and other changes in the law of bills Sect. 8 of of sale have been made. It is not to be supposed, however, that an * h ,^^- ct of 15S LEADING CASES MADE EASY. unregistered bill of sale is of no use whatever. It is good against the grantor himself, against his assigns, against strangers, and even against a creditor with whose knowledge and assent it was given. It may, perhaps, Le convenient here to mention the existence of 27 Eliz. c. 4. That statute is confined exclusively to real property, and provides that all voluntary conveyances of land shall be void against subsequent purchasers for value, whether with or without notice. Suing on Quantum Meruit. * — f [92.] CUTTER v. POWELL. [6 T. R. & S. L. C] The defendant had a ship which was about to sail from Jamaica to England, and wanted a second mate. In answer to an advertisement a suitable person presented himself in the shape of Mr. T. Cutter, and the defendant gave him a note to this effect : — " Ten days after the ship, Governor Parry, myself master, arrives at Liverpool I promise to pay to Mr. T. Cutter the sum of 30 guineas, provided he proceeds, continues and does his duty as second mate in the said ship from hence to the port of Liverpool." The ship set sail on July 31st, and arrived at Liverpool on October 11th. But life is very uncertain ; and on the voyage Mr. T. Cutter exchanged the billows of time for the haven of eternity. He had gone on board on July 31st, and had performed his duty faithfully and well up to the time of his death, which occurred on September 20th, — that is to say, when more than two thirds of the passage were accomplished. If on these facts the unsophisticated but thoughtful student were asked whether Mr. T. Cutter's family would LEADING CASES MAPI'. EASY. L59 be entitled to see anything of the 30 guineas, the proba- bilities are that he would reply — " Certainly ; they might not be able to get the whole 30 guineas, but I suppose they would get something for the man's service from July 31st to the time of his death." In this opinion the unsophisticated but thoughtful student would be wrong. "In this case," said one of the judges, "the agreement is conclusive ; the defendant only engaged to pay the intestate on condition of his continuing to do his duty on board during the whole voyage, and the latter was to be entitled either to 30 guineas or nothing ; for such was the agreement between the parties." And so the widow went weeping away. An entire contract cannot be apportioned. An ironmonger once agreed to make some dilapidated chandeliers " complete" for .£10. lie set to work on them, and certainly very much improved them. But he did not make them " complete," and therefore he did not succeed in recovering a farthing, altho' it was quite clear that the work he had done was worth £5 at least. But if the contract is Sinclair not entire, hut divisible, it is different. A ship which had suffered Z' „ '"t ['!' many things of many waves put into port to be doctored ; and a certain shipwright agreed to put her into " thorough repair ;" but nothing was said about the amount or mode of payment. The shipwright began the job, but after a while getting distrustful (if his employers, he declined to go on unless he was paid for what had already been done. He was successful in his demand, the court dis- tinguishing the case from the one above on the ground that the contract there was to do a specific work for a specific mm, whereas here there was nothing amounting to a contract to do the whole repairs and make no demand till they were completed. Roberts v. Generally speaking, when the contract is entire, there are only two ., " '"' ' '" ' ' \ cases in which the plaintiff can demand payment on a quantum rueruit without having wholly performed his part of the contract. 1. Where the defendant has absolutely refused to perform, or has incapacitated himself from performing his part of the contract. In such a case it is not the plaintiff's fault that he has not per- formed his part of the contract, and it would be obviously unjust that he should suffer by the faithlessness of the person he contracted with. A literary gentleman once undertook to write a treatise on Ancient Armour for the " Juvenile Library." But the " Juvenile Library" proved so little successful that it* promoters determined to 1G0 LEADING CASES MADE EASY. Planrhev. Colbum, 8 Bins:. Pepper v. Burland, Peake. abandon it, whereby the literary gentleman, who had taken several journeys to inspect specimens of the rather ponderous raiment our ancestors were pleased to wear, and had written several chapters of his proposed work, was damnified to the extent of <£50. It was held that, as the special contract was at an end, the writer on armour might sue on a quantum meruit. 2. Where work has been doue under a special contract tho' not in strict accordance with its terms, and the defendant has derived a benefit from it under such circumstances as to raise an implied promise to pay for it. In this case, however, the employer may refuse to accept the work done ; it is only when he does accept it and take the benefit of it that he may be sued on a quantum meruit. If, for instance, I agree with a man that he shall sell me a certain quantity of goods, and he only delivers part, I may send it back and have nothing more to do with him ; but if I accept that part, I must pay for it. In building contracts there is often a deviation from the original plan by consent of the parties. The rule as to the workman's pay- ment for the extras so entailed is that the original contract is to be followed so far as it can be traced, but if it has been totally abandoned, then the workman may charge for his work according to its value as if the original contract had never been made. Assignment of Choses in Action. [93.] BRICE v. BANNISTER. [3 Q. B. D.] Mr. Gough, ship-builder, agreed to build a ship for Mr. Bannister, ship-owner, for £1375. After this agreement had been entered into, Mr. Gough gave one of his creditors, Mr. Brice, solicitor of Bridgwater, the following order, addressed to Mr. Bannister : — " I do hereby order, authorise, and request you to pay to Mr. William Brice, solicitor, Bridgwater, the sum of £100 out of money due or to become due from you to me, and his receipt for same shall be a good discharge." LEADING CASES MAP/'. EASY. 1G1 Directly Brice received this order, he gave notice of it to Bannister in the following terms : — " I hereby give you notice that, by a memorandum in writing dated the 27th of October, 1876', John Gough, of this place, authorized and requested you to pay me the sum of £100 out of money due or to become due from you to him, and my receipt for the same shall be a good dis- charge." Bannister seems to have thought that, as he had had nothing to do with this arrangement between Gough and Brice, it did not in any way concern him, and, in spite of the notice, paid the whole of the money for the ship to Gough. This was an action by Brice, and it was held that the instrument in writing constituted a valid assignment of the £100. "It does seem to me," said Bramwell, L.J., "a strange thing, and hard on a man, that he should enter into a contract with another and then find that, because that other has entered into a contract with a third, he, the first man, is unable to do that which it is reasonable and just he should do for his own good. But the law seems to be so ; and any one who enters into a contract with A. must do so with the understanding that B. may be the person with whom he will have to reckon." At common law a chose in action could not be assigned ; but it is provided by the Judicature Act that " any absolute assignment by 36 & 37 writing under the hand of the assignor (not purporting to be by way of Vl ^*- c - 66 » charge only) of any debt or other legal chose in action, of which ^.^ g # 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 equities which would have been entitled to priority over the right of the assignee if this Act had not been 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." Brice v. Bannister was followed almost immediately afterwards in Buck v. Bobson, where, however, the point requiring to be decided 3 Q. B. D. referred to stamp duty. M 1G2 LEADING CASES MADE EASY. Acknowledgments Saving the Statute of Limitations. [94.] TANNER v. SMART. [6 B & C] In 181G Smart gave Tanner his promissory note for £100. In 1819 Tanner showed it him, and delicately suggested a settlement. Smart said frankly, " 1" can't pay the debt at 'present, bat I ivill pay it as soon as I can." Five years slipped by, and Tanner brought an action on the note, to which Smart pleaded actio non accrevit infra 21 Jac. I. sex annos, — in other words, pleaded the Statute of Limita- tions. In reply to that defence, to show that the action had accrevited within the last six years, Tanner proved that only five years had elapsed since Smart had spoken the aforesaid words. This was, however, considered to be insufficient, in the absence of proof of the defendant's ability to pay, and the debtor scored smartly off his creditor. Whether particular words amount to such an acknowledgment as to take a debt out of the Statute of Limitations is a question which the law courts have constantly to determine. At one time it was held that a positive refusal to pay was a good enough acknowledg- ment. The tide of authorities, however, turned ; and no acknow- ledgment is now sufficient for the maintenance of an action if it stops short of being such an admission of a debt being due that a promise to pay may be implied. Such expressions, for instance, as — " Doubtless T did owe the money, but I have already paid it ;" " I admit the debt, but I have got a set-off ;" " The debt is barred by the Statute of Limitations ;" "I know I do owe the money, but the bill A'Court I gave is on a threepenny stamp, and ] will never pay it," would not v. Gross, i^ sufficiynk Qn the other hand, where there is an unqualified 3 Bing. ' * . acknowledgment of a debt, a promise to pay will be inferred. A Sharp 45* l e tter, for iustance, from a debtor to his creditor, asking him please L.J. (Ex.). to " send in his account" would be sufficient. LEADING CASES MADE EASY. 163 When, as in the leading case, the debtor has made a conditional promise to pay, the creditor, if he wishes to win his cause, must prove affirmatively the performance of the condition. In a very recent case the debtor had said he would pay " as soon as his posi- tion became somewhat better." The creditor could not prove that tin- man had been left a handsome legacy, or that his fortunes had in any way improved, and so he lost his money. Meyerhoff "The law on the subject," says Cleasby, B., in 1877, "is most v ; ^'"' / ',- clearly summed up by Mellish, L.J., In re River Steamer Co., j> ^ MilrhelVs Claim, L. R. 6 Ch. : — 'There must be one of these three things to take the case out of the statute. Either there must be an acknowledgment of the debt from which a promise to pay is to be implied ; or, secondly, there must be an unconditional promise to pay the debt ; or, thirdly, there must be a conditional promise to pay the debt, and evidence that the condition has been performed.' " Slceet v. It is to be observed that tho', when Tanner v. Smart was decided, ^ " .-j''. an acknowledgment might be by word of mouth, it is now required by statute to be in writing and signed (a). Acknowledgment by Joint Contractor, &c. WHITCOMB p. WHITING. [95.] [2 Dougl. & S. L. C] Whiting and Jones made a joint and several promissory note, which in the course of time came into the hands of the plaintiff. Eight or ten years after the day on which it was made, the plaintiff sued Whiting, who had long ago forgotten his little undertaking. "Yes," said Whiting, " that certainly must be my signature, and, now you come to mention it, I do remember something about a promis- sory note. But, you see, the date of that note is more than six years ago ; so I have the law of you." " That's all very (a) 9 Geo. IV. c. 14, s. 1 (Lord Tenterden's Act), and 19 & 20 Vict. c. 97, s. 13 (Mercantile Law Amendment Act). M2 104 LEADING CASES MADE EASY. fine, Mr. Whiting," replied the holder with a chuckle, "but you may be interested to learn (mark the pun, Mr. Whiting) that Mr. Jones, the gentleman whose name is with yours on this bit of paper, has paid interest on it within the last six years ; and, if I'm not pretty well mistaken, that takes it out of the statute as against you as well as against him." And so it proved. " Payment by one," said my Lord Mansfield, " is payment for all, the one acting virtually as agent for the rest." " The defendant," said Willes, J., " has had the advantage of the partial payment, and therefore must be bound by it." In explanation of this last remark it may be suggested that probably all the ten years Jones was punctually paying the interest, so that Whitcombe had no desire to enforce payment of the principal. Then Jones suddenly foundered in the ocean of insolvency, and it became necessary to see whether the other joint contractor was any good. By 9 Geo. IV. c. 14 partly, and by 19 & 20 Vict. c. 97 completely, the doctrine of this case was altered ; and a Mr. Whiting of 1879 would not be prejudiced by the payment or other acknowledgment of a joint contractor. He would be able to shelter himself behind the Statute of Limitations and snap his fingers at his creditor. Goodwin v. In a very recent case in which the question was whether one of Farton, ^ WQ p ar t ners mU st be presumed, in the absence of proof to the con- N. S. trary, to have authority to make a payment on account of a debt due by the firm, so as to take the debt out of the Statute of Limitations as against the other, — held, that he must — Lush, J., said: "The eases on the subject, which, of course, vary in their circumstances, are no guide to the decision of this or of any other case, except so far as they develop the principle which ought to be applied. They lay down the following conditions as necessary to constitute a part pay- ment so as to prevent the operation of the statute. "First, the payment must be shown to have been a payment of part, as part, of a larger sum — a payment which, tho' not in fact sufficient to cover the demand, was made on the supposition that it was sufficient, or which was accompanied with expressions or circum- stances showing that the debtor did not intend even to pay more, will not suffice. "Secondly, the payment must have been made on account of, or LEADING CASES MADE EASY. 105 must with the assent of the debtor have been appropriated to the debt sought to be recovered. " Third!//, since the Mercantile Amendment Act (19 & 20 Vict. c. 97) payment by one of two joint debtors, tho' professedly made on behalf of both, will not prevent the statute running in favour of the other, unless it appears that he either authorised or adopted it as a payment by him as well as by his co-debtor." Accord and Satisfaction. CUMBER v. WANE. [96.J [1 Strange & S. L. C] Wane owed Cumber £15, and wondered how he should pay it. In a genial moment Cumber rejoiced his debtor's heart by telling him that, if he paid £5, it would do. Wane thanked him, sat down quickly, and wrote out his promissory note for that amount. But after a while it repented Cumber of his generosity, and he went to law for the whole £15. Wane pleaded that the plaintiff had agreed to accept £5 in full satisfaction for the debt of £15, and that he had paid the £5. Tho' perfectly true, this was not considered a satisfactory plea, and the unfortunate Wane was compelled to pay the remaining £10. The principle on which Cumber v. Wane proceeds is, that there is no consideration for the relinquishment of the residue; so that when- ever there is a benefit, or legal possibility of a benefit, to the creditor, the doctrine that the payment of a smaller sum is no satisfaction of a larger one does not apply. For that reason, 1. Something of a different nature, tho' of less value, e.g., an old pair of slippers (which may have been worn by Alexander the Great, or have a fancy value quite apart from their intrinsic usefulness), or a peppercorn, may be pleaded in satisfaction of a debt of £10,000. For this reason a negotiable instrument (by the way, it must be 166 LEADING CASES MADE EASY. Sibree v. Tripp, 15M.&W, Pinners case, 5 Co. Rideal v. G. W. By. Co., 1 F. &F. Fitch v. Sutton, 5 East. taken that in Cumber v. Wane the note was not negotiable) for £5 might very successfully be pleaded in satisfaction for a debt of £15. 2. So may a payment, smaller indeed, but earlier than originally stipulated for, or made at a different place. 3. So when there is a dispute as to the exact sum due. 4. The doctrine does not apply to unliquidated damages, for it is not known what is really due to the plaintiff. Railway companies occasionally succeed in entrapping their victims into agreements of this kind. In such a case the question for the jury is whether the plaintiff's mind went with the terms of the paper he signed. 5. Under the Bankruptcy Act, 1869, a debtor may be discharged from obligations by his creditors accepting a composition. It is to be observed that a smaller sum may be pleaded in satisfac- tion of a greater if a receipt is given under seal. Moreover, payment of part may sometimes be evidence of a gift of the remainder. Tender. [97.] FINCH v. BROOK. [1 Bing. N. C] Money disputes having arisen between Mr. Finch and Mr. Brook, and litigation being imminent, Mr. Brook sent his attorney to Mr. Finch to pay what he believed to be the amount of his debt. Accordingly, Brook's attorney called on his client's creditor, and said, " I am come, Mr. Finch, to pay you the £1 12s. 5d. which Mr. Brook owes you," whereupon he put his hand into his pocket to come at the coin. Finch, however, testily replied, " I can't take it, the matter is now in the hands of my attorney," and so the lawyer took his hand out of his pocket again without producing the money. The question was whether this constituted a valid tender, and it was held that it did not, for there was neither production of the money nor dispen- sation with production (a). (a) The court, however, seems to have thought that, if the jury had chosen to do so, they might very well have inferred dispensation. LEADING CASES MADE EASY. 107 The reason why the law attaches bo great importance to the pro- duction of the money is that " the sight of it may tempt the creditor to yield." A tender, however, is valid, tho' there is no production, if the creditor dispenses with it ; as, for instance, where a debtor called on his creditor and said he had £8 18s. 6rf. in his pocket to pay his debt with, whereupon the creditor exclaimed, " You needn't give yourself the trouble of offering it, for I'm not going to take it." Douglas v. A tender to be worth anything must be tcnconditional. " If you ", ' c ' , ' will give me a stamped receipt, I Avill pay you the money," said a debtor once, and polled out the money as he spoke. But the tender was held bad for the condition. Laing v. A tender to be good must be made to the principal, or to a person i q. & p authorised by him to receive the money. In a very recent case the question arose as to whether a solicitor's clerk, who, having had no instructions on the subject, refused to take the money tendered, had sufficient implied authority to represent his employer for the purpose ; but a disagreement of doctors leaves the point undecided. Finch v. A tender to be valid must be of the whole debt due. Tender of .Tp'i, a part of the debt is inoperative. If, however, the creditor's claim consists of a number of distinct items, the debtor may make a tender of payment of any one of them, provided that he carefully specifies the particular claim in respect of which he makes a tender. A tender Strong v. may, of course, be made of a larger sum of money than the amount Harvey, of the debt, but the debtor must not demand change. A tender properly made and pleaded is a complete answer to the plaintiff's claim so far as his action is concerned, for it shows it to have been unnecessary. "The principle of the plea of tender is that the defendant has been always ready to perform entirely the contract on which the action is founded ; and that he did perform it, as far as he was able, by tendering the requisite money, the plaintiff himself precluding a complete performance by refusing to receive it." Dixon v. Clark, 5C. 13. Construction of Contracts. ROE v. TRANMAER. L 98 - I [WlLLES & S. L. C] A deed bade fair to become void altogether as purport- ing to grant a freehold in fihtii.ro — a thing which the law does not allow. It was saved, however, from this untimely 1G8 LEADING CASES MADE EASY. Rawlinson v. Clarice, 14M.&W. Dormer v. Knight, 1 Taunt. fate by the merciful construction that, tho' void as what it purported to be, it might yet avail as a covenant to stand seised, the court citing the maxim, benigne faciendce sunt intevpretationes chartarum, ut res magis valeat quam pereat. In construing a written contract (which construction is for the court) the intention of the contracting parties must be looked to, the sense in which the promisor believed that the promisee accepted the promise being the principal test. But, on the other hand, it is of no consequence what the intention of the contracting parties was if their written agreement, tho' totally inconsistent with such inten- tion, is precise and clear. The chief rules of construction, having the object of getting at the intention of the parties, are the following : — 1. The construction must be reasonable. One surgeon sold his business to another, and covenanted not to practise within a certain distance. On the reasonable construction of this covenant it was held that it was not broken by the retired surgeon's acting in an emergency, so long as he was not trying to get back his practice. 2. The construction must be liberal. The masculine may be under- stood to include both genders. This is a very familiar rule of con- struction. When we say that " All men are sinners," or that " All men are mortal," we do not mean to say that the ladies are not. If a licence were given to kill any beast of the chase in Sherwood Forest except bucks the exception would be taken to cover does too. 3. The construction must be favourable ; that is, favourable to the agreement meaning something, and not becoming mere waste paper. If it is possible to put two constructions on an agreement, — one which would make it illegal and void, and the other which would not, the latter view must be taken. Roe v. Tranmarr may be taken as an illustration of this. 4. Words (unless usage has given them a technical meaning) are to be construed in their ordinary popular sense. An annuity was to become void if a married woman separated from her husband " associated " with a bad fellow. It was held that to receive the man's visits whenever he chose to call was " associating" with him. 5. The whole of the contract is to be considered ; ex antecedentibus et consequentibus fit optima interpretatio. Even the recitals may throw important light on what was intended. 6. When a doubt about the meaning of words arises the court ought to incline to take them contrary to the interest of the writer. Verba fortius accipiuntur contra proferentem; the law shrewdly suspecting that eveay man will take care to guard hie own interests. This rule, however, is only to be resorted to as a last resource. LEADING CASKS MADE EASY. 1G9 Measttre of Damages hi Contract. HADLEY v. BAXENDALE. [99] [9 Exch.] Messrs. Hadley and Co. were millers at Gloucester, and worked their mills by a steam-engine. In May, 1853, it happened unfortunately that the crank shaft of the engine broke, and their mills suddenly came to a stand-still. With a view to remedying the disaster, they communicated immediately with Messrs. Joyce and Co., engineers of Greenwich, and settled to send them the broken shaft that it might form the pattern for a new one. They then sent a servant to the office of the defendants, the well known firm of carriers trading under the name " Pickford and Co.," to arrange for the carriage of the broken shaft. The servant found a clerk at the office, and that gentleman informed him that, if sent any day before 12 o'clock, the shaft would be delivered the next day at Greenwich. On the following day, accordingly, before noon, the shaft was received by the defendants for the purpose of being con- • veyed to Greenwich, and £2 4s. was paid for its carriage for the whole distance. It chanced, however, through the negligence of the defendants, that the shaft was not de- livered the next day at Greenwich ; and the consequence was that Messrs. Hadley and Co. did not get the new shaft till several days after they otherwise would have done, the mills in the meantime remaining silent and idle, to the not small pecuniary loss of their proprietors. It was for the loss of those profits which they would have made if the new shaft had come to them when they expected it that this action was brought ; and the question was whether the damages were too remote. It was held 170 LEADING CASES MADE EASY. that if the carrier had been made aware that a loss of profits would result from delay on his part, he would have been answerable. But it did not appear that he knew that the want of the shaft was the only thing which was keeping the mill idle. When two persons sit down to make a contract, they are seldom so optimistic as not to consider the possibility of the other party proving faithless and breaking his contract. What will be the consequence to me of this fellow's not keeping his promise 1 is a thought that is sure to be passing through the mind of each contracting party. This is the key to the measure of damages arising out of breach of con- tract. The damages payable in such a case are those which arise naturally, or may be reasonably supposed to have been in the con- templation of the parties at the time the contract was made as the probable result of a breach of it. Three rules may be deduced from Hadley v. Baxendale : — 1. That damages which may fairly be considered as arising naturally from the breach are recoverable. Not long ago a person sold a cow, warranting that it was free from disease. As a matter of fact it had the foot and mouth disease, and infected the purchaser's other cows. All the cows died, and the vendor was held responsible for the entire loss, on the ground that he could never have supposed that the cow he sold was intended for a life of solitary confinement. He must have known that the breach Smith v. of warranty would lead to precisely what actually happened. Green, The similar and well-known case of Mullett v. Mason was different 1 C P D * and' see "' *' rom ^ n ^ s case ' because there the vendor had not only warranted but Randall v. given a fraudulent misrepresentation. Raper, g 0j ^ 00) an y increased cost to which a person is put, from the ' necessity of doing himself what he had contracted that someone else q p' should do for him, is recoverable, if what he does is the fair and reasonable thing to do under the circumstances. On this point Le Blanche v. The London & North Western Railway Company (p. 52) may be consulted. 2. Damages, not arising naturally, but from circumstances pecu- liar to the special case, are not recoverable unless the special cir- cumstances are known to the person who has broken the contract. Hadley v. Baxendale went off on this point. The special circum- stances, tho' hinted at, were not so fully disclosed that the defendants were aware that the want of the shaft was the only thing which kept the mills idle. In another case, an ironworks company agreed to sell the plaintiff the hull of a derrick and deliver at a time fixed. They believed that LEADING CASES MADE EASY. 171 he wanted it for a coal store. As a matter of fact he wanted it for trans-shipping coals from colliers into barges. The former was the ordinary, and the latter an extraordinary use of the derrick. They were late ; and were held liable for the profits which would have been made by the ordinary, but not by the extraordinary use of the derrick during the period of delay. Cory v. 3. Where the special circumstances are known to the person who y Mmes breaks, and the damage complained of flows naturally from the q ^ l. R. breach of the contract under those special circumstances, such special 3 Q. B. damage is recoverable. This rule, however, cannot be said to be entirely free from doubt, and should probably receive this qualification — "The knowledge must be brought home to the party sought to be charged under such circumstances that he must know that the person he contracts with reasonably believes that he accepts the contract with the special con- dition." PerWaies, The case of Home v. Midland Railway Company may be use- n\^ j fully remembered. Early in 1871 the plaintiffs contracted to supply Columbia a quantity of shoes at 4s. a pair for the use of the French army. Saw Mill They were to be delivered by a particular day, or they would be \}'Jj i- thrown back on the plaintiffs' hands. The plaintiffs delivered l. R. these shoes in good time at Kettering, and gave notice to the 3 C. P. station-master there that they were under contract to deliver on 42 k. J., that day, and that if not so delivered the shoes would be thrown on their hands ; but no further information was given. Somehow the shoes were not delivered in time, and, doing the best they could, the plaintiffs could only sell the rejected shoes at 2s. 9d. a pair, and the plaintiffs brought this action to recover from the company the difference between 4s. and 2s. 9d. on each pair. It was held, however, not without considerable difference of opinion, that they could not. " In Hadley v. Baxendale," said Blackburn, J., " it is said that, if special notice be given, the damage is recoverable, tho' there be no special contract, and this has been repeated in various cases ; but it is noticeable that there seems to be no case where it has been held that if notice be given abnormal damages may be recovered ; and I should be inclined to agree with my brother Martin that they cannot unless there be a contract. But it is not necessary to decide this question, because here in fact there was no such notice ; the notice here given conveys full infor- mation that the day is of consequence, and that the goods should be delivered on the 3rd of February if the defendants could, from which a contract of sale on which there was a profit might be inferred ; but there was no notice that the defendants would have to pay the amount of loss claimed. Therefore, it is not necessary to decide whether the dictum in Hadley v. Baxendale is law, tho' I confess that at present I think it a mistake." 172 LEADING CASES MADE EASY. 1 Q. B. D.; and see Hydraulic Engineer- ing Co. v. McHaffie, 4 Q. B. D. Baxendale v. L., C. & D. Ry. Co., L. R. 10 Exch., and Fisher v. Vol de Travers Asphalte Co., 1 C. P. D. Valpy v. Oakeley, 16 Q. B., and Ogle v. Vane, L. R. 2Q. B. Brown v. MulUr, L. R. 7 Ex. Roper v. Johnson, L. R. 8 C. P. The case, too, of Simpson v. London & North Western Railway Company deserves attention. It was an action by a cattle spice manu- facturer against a railway company for not delivering spice samples, &c, which the plaintiff had been exhibiting at a cattle show at Bedford, in time for another show at Newcastle-on-Tyne. The plaintiff had not distinctly told the railway people that the goods he was sending were samples intended for exhibition at the Newcastle show, but he had said they must be there " on Monday certain," and the circumstances could leave no doubt in the minds of the defendants what the man's purpose was. Accordingly, the plaintiff was held entitled to recover damages both for loss of time and loss of profits. " The law," said Cockburn, C. J., " as it is to be found in the reported cases, has fluctuated ; but the principle is now settled that whenever either the object of the sender is specially brought to the notice of the carrier, or circumstances are known to the carrier from which the object ought in reason to be inferred, so that the object may be taken to have been within the contemplation of both parties, damages may be recovered for the natural consequences of the failure of that object." It often happens that a -person defends an action which ought really to have been defended by someone else, and difficult questions arise as to the former's rights against the latter. The costs of the action unsuccessfully defended cannot generally be recovered, but the damages which the jury have found may. See, however, on this subject Order XVI., Rule 17, of the Judicature Act. In the action for not accepting goods sold, or for not delivering them, the measure of damages is the difference between the contract price and the market price of similar goods at the time when they ought to have been accepted or ' delivered. And if a number of different periods were fixed for the acceptance or delivery of the goods, the damages are the sum of the differences at those periods. It has been expressly held (in a case in which the defendant had agreed to sell the plaintiff 3000 tons of coal to be delivered during May, June, July, and August, 1872, and the action was commenced on July 3rd in that year) that that is the way the damages are to be arrived at, altho', on a complete breach of contract, the action is brought before the periods of delivery have all come. II A DING CASES MADE EASY. 173 Penalties and Liquidated Damages. KEMBLE v. FAHREN. [6 Bing.] Something more than half a century ago an actor and a manager sat down and made an agreement. The actor on his part undertook to act as principal comedian at the manager's theatre (Covent Garden) for four seasons, and in all things to conform to the regulations of the theatre; while the manager agreed to pay the actor £3 6s. 8d. a night, and to allow him a benefit once every season. And the agreement contained this clause, " that if either of the parties should neglect or refuse to fulfil the said agreement, or any part thereof, or any stipulation therein contained, such party should pay to the other the sum of £1000, to which sum it was thereby agreed that the damages sus- tained by any such omission, neglect, or refusal should amount ; and which sum was thereby declared by the said parties to be liquidated and ascertained damages, and not a penalty or penal sum, or in the nature thereof." For some reason or other — it does not matter what — during the second season the actor refused to act, and the manager now went to law to recover the whole £1000 mentioned in the agreement, altho' he was quite prepared to admit that he had not sustained damage to a greater extent than £750. The manager, however, did not succeed, for the court said that it could never be taken to be the intention of the parties that the whole £1000 should instantly become payable on the happening of any breach, however trifling. And so the manager had to be content with £750. It is not always, however, that a court will interfere in this way, [100.] 174 LEADING CASES MADE EASY. and pronounce what the parties call liquidated damages to be really- only a penalty. If the agreement, for instance, were not — as it was in Kemble v. Farren — an agreement containing various stipulations of various degrees of importance, but there were only one event upon which the money was to become payable, or if there were several events but the damages impossible to measure, then no attempt to See Green turn liquidated damages into a mere penalty would be successful. V 100^' Prima facie the word penalty in an agreement really means penalty. But the surrounding circumstances may show that the parties intended the sum to be considered liquidated damages. A generation ago a young surgeon at Macclesfield agreed with another surgeon that, if the latter would take him as assistant, he would never practise at or within seven miles of Macclesfield "under a penalty of i>500." In spite of the word "penalty" having been thus used, it was held that the whole £500 was payable as liquidated Sainter v. damages. " This agreement," said Wilde, C.J., " does not prohibit Fergtmn, ^ e defendant's doing several distinct and independent acts, each of which might be incapable of exact estimation. . . . The whole object of the plaintiff was to protect himself from a rival ; and it would be impossible in such a case to say precisely what damage might result to him from a breach of the agreement : it is not un- reasonable, therefore, that the parties should themselves fix and ascertain the sum that should be paid. And I think we can only give effect to the contract of the parties by holding the £500 to be liquidated damages and not a mere penalty." And Coltman, J., said, "Altho' the word ' penalty' which would prima facie exclude the notion of stipulated damages is used here, yet we must look at the nature of the agreement and the surrounding circumstances." The whole thing is a question of intention, and, where there is doubt, the leaning of the court is in favour of a penalty. Injuria and Damnum. [101.] ASHBY v. WHITE. [Lord Raym. & S. L. C] Through tory trickery, the vote of a respectable elector at Aylesbury was rejected at the poll. As it happened, the candidates for whom the gentleman had intended to vote were elected. But in spite of his thus having LEADING CASES MADE EAS \. 17/ sustained no actual damage, he brought an action against the returning officer, and, after much discussion and many storms, it was held that such an action could be maintained. Lord Chief Justice Holt, whom the student should at once make one of his legal heroes, covered himself with glory as with a cloak. He was unanimously overruled in his own court ; — " My brothers," he said, "differ from me in opinion; and they all differ from one another in the reasons of their opinion ; but, notwithstanding their opinion, I think the plaintiff ought to recover." And when the case went up to the Lords, their Lordships thought so too. CHASEMORE v. RICHARDS. [102.] [7 H. L. C] A town cannot easily have too good a supply of water, and no doubt the Local Board of Health for the town of Croydon were public benefactors when in 1851 they sank a substantial well and supplied the good people of Croydon with pure water at the rate of 000,000 gallons a day. But the public gain was Mr. Chasemore's loss. That gentle- man was the occupier of a mill situated on the river Wandle about a mile from Croydon, and had, — he and his predecessors, — used the river for the last seventy years for turning his wheels. It may well be imagined, therefore, that he was extremely disgusted to find that the effect of what the Local Board had done was to prevent an enor- mous quantity of water from ever reaching the Wandle or his mill. The miller, they say, wots not of all the water that goes by his mill. Very likely. But Chasemore wotted of a good deal of water that did not go by his mill, and went to law. Unfortunately, however, he was not success- ful. The judges told him that, tho' he was very much to be sympathised with, he had no legal remedy. There was damnum, they said, but not injuria. 17G LEADING CASES MADE EASY. These two cases pretty clearly illustrate the distinction between injuria sine damno and damnum sine injuria. Wherever a person has sustained what the law calls an "injury," there he may bring an action without being under the necessity of proving special damage, because the injury itself is taken to imply damage. A banker once dishonoured the cheque of a customer who really had plenty of money in the bank, and the customer thereupon brought an action against him. It was held that the action was maintainable, altho' the plaintiff had not sustained any loss whatever by the banker's Marzettiv. wrongful act. There was no damnum, but there was injuria, and IB & Ad ^ ia ^ was l^e sufficient. In Ashby v. White the defendant's counsel cited unsuccessfully the maxim de minimis non curat lex, con- tending that, even if Mr. Ashby had sustained some damage, it was one of so infinitesimal a character as to be unworthy of notice. It was also objected that there was no precedent for such an action, but Lord Holt replied that if men will multiply injuries, actions must be multiplied too. On the other hand it is not everything that the law brands as an "injury." The most terrible wrongs may be inflicted by one man on another without redress being obtainable. If you are driving a flourishing trade as a schoolmaster, and I come and set up a school just opposite to yours, and the boys desert you and flock to me, there is no "injuria" here, even tho' I may have turned schoolmaster for the express purpose of ruining you. It is damnum sine injuria, and you have no right of action against me. This is the stock illustra- tion ; but perhaps the most flagrant is the absence of redress against a seducer when service cannot be duly proved. In the very recent 12Ch.Div. case of Attorney-General v. Tomline these principles were discussed. That was an action on behalf of the War Secretary to restrain a lord of a manor from removing shingle so as to endanger Crown land on which a Martello tower stood. It was considered that to remove shingle in the way the defendant had done was a natural user of land, and damnum, not injuria. Chasemore v. Richards is a case of some importance on the subject of water-courses. Every riparian owner is entitled to take a reason- able quantity of the water flowing in a natural stream without regard to the interests of owners lower down. But to entitle him to pen it back, or divert, or pollute it, he must show authority Wood v. derived from grant, prescription, or the like. About a year ago Waud, Lord Sandwich brought an action against the Great Northern Rail- and ' wa y Company for taking too much water out of the Ouse at Embrey v. Huntingdon. The line crosses the river there, and the company of « I? U \ course require a quantity of water for satisfying their thirsty engines, and for the general purposes of their station. Lord Sandwich said that his tenant, the miller, lower down the stream, did not get LEADING CASES MADE EASY. 177 enough water in consequence of the large quantity abstracted by the railway company. But it was shown that in wet weather the grumbling miller got quite as much water as he wanted — perhaps rather more, unless he also deals in umbrellas — whereas even in dry weather the working of the mill was only shortened for a few minutes a day. And so it was held that the railway company had kept well within their rights. Sandioich v. G. N. Ry. Co., 10 Ch. Div. Sic uier e tuo tit alicnum non lecdas. FLETCHER v. RYLANDS. [L. E. 3 H. L.] Messrs. Rylands and Co., some enterprising mill-owners, made a reservoir, employing a competent engineer and first- class workmen. During the construction of it, the workmen came upon some old vertical mine shafts, of the existence of which no one was previously aware. These they care- fully filled up with soil. But, when the water came to be put into the reservoir, it was just like putting it into an empty flower pot. It ran through, and did a world of mischief to the neighbouring mines of Mr. Fletcher, who instituted legal proceedings. Messrs. Rylands and Co. defended the action, thinking that as they had employed competent persons to construct the reservoir they would "not be held responsible. But they were mistaken. On the ground that a person who brings on his land anything which, if it should escape, may damage his neighbour does so at his peril, negligence or not being quite immaterial, they were compelled to compensate Mr. Fletcher for the damage the water had inflicted on his mines. [103.1 N 178 LEADING CASES MADE EASY. [104.] NICHOLS v. MARSLAND. [2 Ex. D.] Mrs. Marsland was the fortunate proprietor of some ornamental lakes in the county of Chester. She had not made the lakes herself. They had existed time out of mind, and had always borne the character of being sober, respectable, well-behaved lakes. But on the 18th of June, 1872, there came a tremendous storm, the like of which the oldest inhabitant could not remember. The rains descended, the floods came, and Mrs. Marsland's lakes burst their fetters, and, in the riot of their new-found liberty, swept into eternity two or three county bridges. Nichols was the county surveyor of Cheshire, and brought this action for the damage done. It was argued for the surveyor, with much plausibility, that Mrs. Marsland was in the same position as a person who keeps a mischievous animal with knowledge of its propensities, and therefore that enquiry as to whether she had been negligent or not was needless, — she kept the lakes at her peril. It was held, however, that as the lakes had been carefully con- structed and maintained, and the downpour of rain was so extraordinary as to amount to vis major, the county bridges might build themselves up, — it was no concern of the old lady's. "A man must keep his own filth on his own ground," says an old case in Salkeld, and the principle is the foundation of Fletcher v. Rylands. By all means do what you will with your own, but sic utere tuo ut alienum non Icedas. For this reason, when a man brings on to his land anything that will do damage to his neighbour if it escapes, he keeps it at his peril. It has long been a settled legal principle that a person who keeps a savage animal, such as a tiger or a lion, does so at his peril ; if the animal escapes and hurts any- one, it is not incumbent on the injured party to show that the Burdett owu e r knew that the animal was mischievous. He can recover 9 Q. B. damages without doing so. It is different when the animal which LEAPING CASUS MADE EASY. 179 has done the mischief is naturally domestic and peaceable. It is then necessary for the plaintiff to show that the defendant was aware of its ferocious disposition. In technical language, there must be proof of the scienter. A mau, however, is responsible for the trespasses of his cattle and other animals. About five years ago a horse and mare in adjoining fields had a little dispute about some equine matter, and finally the horse (with a sad lack of gallantry) kicked the mare through the fence. It was held that the owner of the horse, quite apart from any question of negligence, was liable for the injury so done to the mare. " Having looked into the Ellis v. authorities," said Brett, J., " it appears to me that the result of Loftus them is that in the case of animals trespassing on land the mere act k' ^ ^ of the animal belonging to a man, which he could not foresee, or c. P. which he took all reasonable means of preventing, may be a trespass, inasmuch as the same act, if done by himself, would have been a trespass." If the thing causing the mischief has no tendency to escape, it does not come within the above principle. Yew leaves, for example, are poisonous to cattle, but they have no tendency to escape ; and therefore an action could not be brought by a neighbour who had nothing better to say for himself than that his cattle were poisoned by yew leaves, and that the yew tree grew on the defendant's land. Wilson v. If, however, the poisonous tree projected over into the plaintiffs ^cawrry, field, it would be different. 7 q g_ Nichols v. Marsland engrafts on the rule of Fletcher v. Rylands the Croiehurst qualification that, altho' a man brings on to his land what will do v - Amers- damage if it escapes, still he is not responsible if the escape is due ,, ■ , to causes beyond his own control and amounting to vis major. Board, Similarly, if A. were to bore a hole in B.'s cistern, or if a rat were 4 Ex. -Div. to eat a hole, whereby C.'s premises were flooded, B. would not be liable to C. Ca/rstairs And when plaintiff and defendant occupy different storeys of the v - ?, l ' ! (° r ' same house, it is generally necessary to prove actual negligence before anc i see the latter can be made responsible to the former, say, for a water- Box v. closet getting out of order and discharging its contents into the , "; ' ^. rooms below. n It may be remarked, as to the liability of neighbouring mine- Fedden, owners, that it has been held that the owner of a colliery lying on a L- R- higher level than another is not responsible for damage done to the ' latter by its being flooded through the usual and proper talking of coal from the former. Smith v. The maxim sic utere tuo etc. has received two of its latest illustra- Kendndc, 7 C IJ tions from the cases of Hurdman v. North Eastern Railway Company ' ' (where the defendants were held responsible for having on their own land built an artificial mound so close to the plaintiff's house as to N 2 130 LEADING CASES MADE EASY. render it damp and unhealthy hy the rain oozing through), and 3 C. P. D. Firth v. Bowling Iron Comixiny (where a Yorkshire cow had swallowed See also a ^; t f poisonous wire rope negligently left by the defendants on lerkmd, ' their land, and not digested it — held, that the defendants were &c, Oo!y. liable). Kenyon, 40 L. T., N. S. Proximate Cause. [105.] SCOTT v. SHEPHERD. [2 W. Bl. &S. L. Q] Mr. Shepherd, of Milbourne Port, determined to celebrate the happy deliverance of that august and wise monarch James I. in the orthodox fashion ; and, with that intention, he some days before the 5th laid in a plentiful pyrotechnic supply. Being not only of a pious and patriotic spirit, but also a man not destitute of humour, he threw a lighted squib into the market house at a time when it was crowded with those that bought and sold. The fiery missile came down on the shed of a vendor of ginger-bread, who, to protect himself, caught it dexterously and threw it away from him. It then fell on the shed of another edn^er- © o bread-seller, who passed it on in precisely the same way ; " And by two mesne tossings thus it got To burst i' the face of plaintiff Scott," putting the unfortunate fellow's eye out. Scott brought an action against the original thrower of the squib, who objected that he was not responsible for what had happened, when the squib had passed through so many hands ; but, tho' he persuaded the learned Mr. Justice Blackstone to agree with him, the majority of the court decided that he must be presumed to have contem- plated all the consequences of his wrongful act and was answerable for them. LEADING CASES MADE EASY. 181 SHARP o. POWELL. [106.] [L. R. 7 C. P.] In defiance of an Act of Parliament, a corn merchant's servant washed one of his master's vans in the street of a town. If it had been nice balmy weather no harm would have come of this improper proceeding ; the water would have found its way down a gutter and through a grating. But it happened to be very frosty weather, and (unknown to the law-breaking servant) the grating was frozen over. The consequence was that the water, finding no escape, flowed about promiscuously and formed a great sheet of ice, over which the plaintiff's horse slipped and got hurt. The owner of the injured horse brought an action against the corn merchant, but it was held that, however improper it might be to wash a van in the public street, this was not the 'proximate cause of the injury ; for the servant could not be expected to foresee that the consequence of his act would be that the water would freeze over so large a portion of the street as to occasion a dangerous nuisance. Probably no case, except perhaps Coggs v. Bernard, is better known to the superficial student than " the squib case." It cannot be said, however, that its importance is equal to its popularity. In days gone by it served to illustrate the distinction between the action of trespass and the action on the case ; but it is now chiefly worth remembering as an authority on questions of consequential damage. The rule is that damage to be actionable must be the ordinary and probable consequence of the act complained of ; in other words, the act must be the proximate cause of the damage. If a candidate for parliamentary honours makes a stump oration inveighing at his opponents generally, and waves his hat into the bargain, that is not the proximate cause of one of those opponents getting his windows or his head broken. Generally, however, a man must be taken to con- Peacock v. template all the consequences of his acts, and is responsible for them. n o 0! ii'/v, ... i'ii ii 18 W. h. A railway company negligently sent some empty trucks down an (q_ g. incline into a siding. The consequence was that a herd of cattle being driven along an occupation road got frightened, ran away, and after breaking down a fence or two succeeded in getting killed 182 LEADING CASES MADE EASY. on quite another part of the company's line. The company were Sneesby v. held responsible to the owner of the cattle. In a very recent case Lancashire ^ e folio wing facts appeared. The occupier of a field used for «*-• 1 ork- ° . . ., ,. . . shire R>/. athletic sports put a barrier with iron spikes across the adjoining Co., L. E. road, in order that the British public might not see the sports with- ^' out paying. Somebody removed this barrier, and put it in a dangerous position across the footpath. The plaintiff was lawfully passing along this footpath at night, when his eye came into con- tact with one of the spikes. It was held that the occupier of the field, who had taken liberties with the queen's highway which he had no right to take, was liable notwithstanding the intervention of Clark v. a third party. To take a still more recent case, the proprietor Chambers, f a van an( j ploughing apparatus left it by the grassy side of a road to remain there all night. While it was there a farmer came by driving a mare, a confirmed kicker, tho' not so to his knowledge. The brute shied at the van, ran away, and kicked the farmer to death. In an action under Lord Campbell's Act, it was held that Harris v. the van-proprietor was liable. " Tho' the immediate cause of the „ ?~ ' . accident," said the Court, " was the kicking of the mare, still the ' unauthorised and dangerous appearance of the van and plough on the side of the highway was within the meaning of the law the proximate cause of the accident." The principle of Scott v. Shepherd has been applied in a curious American case, where the defendant (with a certain amount of provocation) had seized a pickaxe and chased a little black boy through the streets of a town. The boy, in terror for his life, bolted into the plaintiff's store, and in his hurry knocked over a cask of wine. It was held that the defendant must pay for the good liquor Vanden- lost. " There is nearly as much reason,'' said the Court, "for hold- bwrgh v. j D g jjj m liable for driving the boy against the wine cask, and thus 4 Denis destroying the plaintiff's property, as there would have been if he New York, had produced the same result by throwing the boy upon the cask, in which case his liability could not have been questioned." Negligence. [107.] READHEAD v. MIDLAND RAILWAY CO. [L. R. 4 Q. B.] Mr. Readhead has achieved immortal fame by a certain LEADING CASES MADE EASY. 183 railway journey which he once took. He was a second- class passenger from Nottingham to South Shields, and on the journey the carriage in which he was travelling left the metals and was upset. This mishap was occasioned by the breaking of the tyre of one of the wheels of the carriage, owing to a latent defect in the tyre, which was not attributable to any fault on the part of the manu- facturer, and could not be detected previously to the breaking. This being so, it was held that, tho' Mr. Readhead might have sustained very severe injuries and be in every way a person deserving of sympathy, the com- pany were under no obligation to make him compensation. Accidents, as the vulgarism has it, will happen in the best regulated families. The carrier of goods impliedly warrants their safety ; the law con- siders him an insurer thereof, and if they do not arrive safely at their destination, he must — act of God and queen's enemies ex- cepted — make good the loss, whether he has been negligent or not. The common law knew well what it was about when it imposed this liability on carriers of goods, for in the good old times it was not an unknown thing for such gentry to collude with highwaymen and divide the spoil. But carriers of passengers stand on quite a different footing. They do not insure the limbs or lives of their customers, and express proof of negligence must be given before one of their victims can secure the smallest solatium for the loss of an arm or a leg. Their duty is "to take due care (including in that term the use of skill and foresight) to carry the passenger safely, and is not a warranty that the carriage in which he travels shall be in all respects fit for its purpose." It may be mentioned, however, that one of the most learned of our judges, Lord Blackburn, dissented from the view ultimately adopted in Beadhead's case, and, while agreeing that carriers of passengers were not insurers, was of opinion that they were bound at their peril to supply a carriage reasonably fit for the journey. And, indeed, it may be questioned whether, considering how arbitrary and how selfish railway companies can be, it would not be more consistent with public policy to impose on them that larger obligation which his lordship advocated. One of the most ordinary actions tried at nisi prius is an action for personal injuries, and in such actions the great object of the 18-i LEADING CASES MADE EASY. plaintiff generally is to prove that the defendant has been negligent. If the injurious act was neither wilful nor the result of negligence, the plaintiff cannot recover. A good case illustrating this is Holmes L. R. v. Mather, where a North Shields gentleman had tried some horses 10 Ex. f or the first time in double harness. The horses did not take kindly to it, and the plaintiff got knocked down. " The driver," said Bram- well, J., " is absolutely free from all blame in the matter ; not only does he not do anything wrong, but he endeavours to do what is best to be done under the circumstances. The misfortune happens through the horses being so startled by the barking of a dog that they run away with the groom and the defendant, who is sitting beside him. Now, if the plaintiff under such circumstances can bring an action, I really cannot see why she could not bring an action because a splash of mud, in the ordiuary course of driving, was thrown upon her dress or got into her eye and so injured it. . . . For the convenience of mankind in carrying on the affairs of life people as they go along roads must expect or put up with such mischief as reasonable care on the part of others cannot avoid." In another well-known case a coach-driver drove his coach on to a bank. He had been past the same spot only twelve hours before, but in the interval a cottage which served him as a landmark had been pulled down and carted away. It was held that this Crofts v. was an accident for which nobody could be made responsible. In Water- suc jj an ac tion it is the province of the judge to say whether there 3 Bine is evidence from which negligence may be reasonably inferred, and of the jury (if the evidence is left to them) to say whether it ought to be inferred. "It is in my opinion," says the Lord Chancellor in a very recent case, " of the greatest importance in the administration of justice that these separate functions should be maintained distinct. It would be a serious inroad on the province of the jury if in a case where there are facts from which negligence may be reasonably inferred, the judge were to withdraw the case from the jury upon the ground that in his opinion negligence ought not to be inferred ; and it would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbitrary manner if they were at liberty to hold that negligence might be inferred from any state of facts whatever." And then, by way of illustration, he suggests the possible case of juries punishing unpopular and un- punctual companies by finding verdicts against them on no particular Met. Ry. evidence. Co. v.Jack- Sometimes, however, the mere happening of a disaster may be 8 jj l sufficient to raise a presumption of negligence, which the defendant See also must rebut if he can. In such cases it is said — Res ipsa loquitur; l)ubhn,ii-c, wna £ cauS ed the mischief was exclusively under the defendant's islattery ' control, and he ought to have taken better care of it. A gentleman 3 App. Ca. LEADING CASES MADE EASY. 185 was once guilelessly walking down a Liverpool street, ''nescio quid meditans nugarum," when suddenly a barrel of flour came down on his head from the upper window of a flour dealer's shop. In an action against the flour dealer it was held that the mere unexplained fact of the accident happening at all was evidence of negligence to go to the jury. Flour barrels ought not to tumble down on people's heads — Res ipsa loquitur. The same principle of law was laid down Byrne v. in a case where a custom-house officer, lawfully in some docks, was Boodle, knocked down by a bag of sugar lowered by a crane overhead ; and in a third case where a brick fell from a railway bridge and cracked /^ndon the skull of a person sauntering peaceably along the queen's highway Bocks Co., below. 3 , H - & c - r\ xi ,. t i , • , .,i Kearney v. Un the other hand, a passenger may enter into a contract with a ^ g £ g carrier to be carried at his own risk. In such a case no amount of C. Jiy. Co., negligence on the part of the carrier would be sufficient to entitle an L.R. 6Q.B. injured passenger to bring an action against him successfully. Such McCaidey a condition exempts a railway company from responsibility, not only v - Fumess during the journey, but while the passenger is coming to or leaving -no q'tj their premises. And it even extends to protect another railway Q a m n v> company over whose line the company making the special contract L. & N. W. have running powers. The condition is usually imposed on a drover Fy.Co., in charge of cattle who receives a free pass. 10 q ' jj. A good many actions against railway companies are brought by Hall v. persons who have sustained hurt by their trains overshooting the N- L. -%• platforms or not getting properly up to them. The mere fact of a -iq'q b ' train's doing a thing of this kind is not of itself evidence of negli- geuce, but in such a case it becomes the duty of the railway servants to take immediate steps to prevent people getting out and hurting y ^"\7' themselves. The student, under such circumstances, should make q \ 2 Q.' as much noise as possible, and insist either on having the train B. D., and brought alongside of the platform, or the assistance of at least half- ^ ^ ^ a-dozen porters to help him to get down. The singing out the name Co., 2 Ex. of the station is, of course, not necessarily an invitation to alight. Div. See It may be mentioned that it has been held that Lord Campbell's j) ar n ni . Act (9 & 10 Vict. c. 93) does not take away the executor's right of ton, 5 Ex. action for damage to the personal estate arising from medical ^ lv - expenses and the deceased's inabilitv to attend to his business be- J *T lc k/ cs v - i „ , . , , , J . . North tween the time of the accident and his death. London The case of Francis v. Cockrell may be referred to in connection Ry. Co., T D with the leading case. The effect of it is that " where money is r 1 vp' paid by spectators at races or other public exhibitions for the use of n .,j,j aw temporary stands or platforms, there is an implied warranty on the v. L. fi F unload. If he is hurt by their negligence, he may sue their master. Wr' ht v " ^ u ^ ^en," said Cleasby, B., in the last case referred to, "it is said L.& N. W. that here the negligence was that of the company's servants, and the Ry. Co., plaintiff was in the position of a fellow servant. The person injured 45 Add was m tna ^ P os i^ion in Degg v. Midland Railway Company and L J 26 Potter v. Faulkner ; for where a man having no business of his own Ex. to accomplish in the matter consents to assist the servants of the 1 B. & S. company in doing the company's work, with what other object can he be acting except that of acting for the occasion as a company's servant ? He is in the same position towards the employers as a fellow servant, for this reason, that it would be unjust that the fact LEADING CASES MADE EASY. 197 of entering voluntarily into the employ should impose a higher liability upon the employer than would exist towards a regularly employed fellow servant. But no such considerations apply to the present case. The plaintiff here was not a stranger, and his inter- ference with the object of getting delivery of his heifer cannot be construed into an agreement to act as a servant of the company, and it is in that agreement that the law implies a consent to take the risks incidental to the service, including risk from the negligence of fellow servants." Negligence. THOMAS v. RHYMNEY RAILWAY CO. [116.] [L. R. 6 Q. B.] Mr. Thomas was a railway passenger from Caerphilly to Cardiff. Midway between these two stations was Llandaff. From Caerphilly to Llandaff the line belonged to the Rhymney Railway Company, and from Llandaff to Cardiff to the Taff Vale Railway Company, the Llandaff station being also the exclusive property and under the exclusive control of the latter company. The Rhymney Railway Company, however, had running powers over the line from Llandaff to Cardiff, and issued through tickets for the whole journey from Caerphilly to Cardiff. It was one of these tickets that Mr. Thomas took ; and his contract therefore was with the Rhymney Railway Company. All went well till the episcopal city was reached ; but at Llandaff station the station-master, a servant of the Taff Vale Company, was guilty of a gross piece of bungling. He allowed the train in which Mr. Thomas was travelling to leave the station only three minutes after an engine and tender of the Taff Vale Company, carrying no tail light, tho' "the night was very dark, had started on the same line of rails. The consequence was that Mr. Thomas's train ran 193 LEADING CASES MADE EASY. into the engine and tender, and Mr. Thomas, with other passengers, was much hurt. The question was whether the Rhymney Company were responsible to the plaintiff for the negligence of the TafF Vale Company, and it was held that they were, for it was with them that the contract had been made. In deciding Thomas v. The Rhymney Railway Company the judges 7 H. & N. followed a case of Great Western Railway Company v. Blake, holding that it made no difference as to the defendants' liability whether they ran over the other company's line by virtue of running powers conferred on them by Act of Parliament or by arrangement. The principle is not confined to railway companies. A Mr. John — this was the gentleman's surname — wished to go by the defendant's steam-boat from Milford Haven to Liverpool. Passengers embark- ing with that object used first to go on board a hulk in the harbour belonging, not to the defendant, but to a Mr. Williams ; and thence they would go on board the steamer. Through the negligence (presumably) of Mr. Williams, a certain hatchway on board this hulk was left unprotected, and Mr. John after taking his ticket fell down John v. it. For this disaster the steam-boat proprietor was held responsible t P^'f; on ^ e ^ a ^ e an( l Rhymney principles, namely, that he must be taken C p. to have warranted that no part of the road should be defective through negligence. It is to be observed, however, that the contract of a company with the person to whom they have issued a ticket as to accidents happening through other people's negligence extends only to persons connected with carrying the passenger. They are not responsible for collateral operations. Two or three years ago, a gentleman took a ticket from the Midland Eailway Company to be carried by them on their line from Leeds to Sheffield. The London and North Western Eailway Company had running powers over a portion of the line, and through the driver, drunk or a fool, disobeying the Midland signals, one of their trains dashed into the Midland train and injured the traveller bound for Sheffield. He brought his action but was not successful, because, as he was informed, the judges " cannot connect with the management of the railway something which is the direct effect not of defective regulations of the company, not of any act to which they were parties, not of the neglect of any person whose services they use, but of the neglect of some persons over whom they have no control whatever, and of whose services Wright v. they do not make use." Mid. Ry. A railway company may protect itself by an unsigned con- o °p . ' ' dition from liability for the loss of goods beyond its own line, the LEADING CASES MADE EASY. \[)\) Railway ami Canal Traffic Act only having reference to a company's own line. The chief authority for this is a case where a person, having taken a ticket from the South Eastern Railway Company to go from London to Paris, lost his portmanteau between Calais and Paris on the Great Northern of France Railway. In a very recent Zunz v. case it appeared that a Mr. Burke had taken from the South Eastern S.E.R.Co., Railway Company a return ticket to Paris. On the ticket was a r'u * condition (which Mr. Burke never read or knew anything about) that the company would not be responsible for anything happening off their lines. Mr. Burke was injured on some French, railway, which his ticket entitled him to travel over, and he went to law with the South Eastern Railway. But it was held that the con- dition, though they had not taken any sufficient steps to bring it to the plaintiff's notice, absolved them from responsibility. Burke v. As to when the injured traveller can sue the company that has S. E. Ri/. been negligent, instead of the company that has given him a ticket, p Vy the very recent case of Foullces v. Metropolitan Bailwaxj Company , V, p jy may be consulted. Person Employing Contractor not Generally Resp07isible. aUARMAN v. BURNETT. [117.] [6 M. & W.] The defendants were a couple of elderly ladies residing in Moore Place, Lambeth. They kept a carriage of their own, but neither horses nor coachman. As the carriage, tho' a good one, would not go by itself, they were in the habit of hiring horses and coachman from a job-mistress named Mortlock. They generally had the same horses, and always the same coachman, a steady, respectable, elderly-ladylike sort of person named Kemp. They paid him 2s. a week, but he received regular wages from Miss Mortlock. The man had a regular Burnett livery, which he always put on when he drove the elderly ladies, and which used to hang up in their hall. 200 LEADING CASES MADE EASY. A day or two before Christmas Day, 1838, Kemp drove the Miss Burnetts out as usual, and after depositing them at their door went in himself to leave his livery. He knew the horses well, and trusted them to stand still while he was changing his coat. For once his confidence was misplaced. The horses got frightened at something, — could it have been a train ? — and bolted, finally upset- ting a quiet old gentleman and severely injuring him. The question now was whether Kemp was the servant of the Miss Burnetts, so as to make them responsible for what had happened, on the principle respondeat superior. Counsel for the plaintiff made great capital out of the livery, the weekly payments, and such circumstances tending to show that the defendants were the domince pro tempore ; but in the end it was held that they were not liable (a). [118.] REEDIE v. LONDON & NORTH WESTERN RAILWAY CO. [4 Exch.] About thirty years ago the London and North Western Railway Company, being engaged in constructing a line between Leeds and Dewsbury, agreed with some con- tractors named Crawshaw that the latter should make two miles of it in a particular part. By the terms of this agreement the company were to have a general right of superintending the progress of the work, and, if the con- tractors employed incompetent workmen, the power to dismiss them. This being the agreement between the company and the contractors, it happened that Mr. Reedie (a) The same point had been previously (in Laugher v. Pointer, 5 B. & C.) fully discussed, but, through an equal division, left undecided. LEADING CASES MADE EASY. 201 was one day taking a quiet stroll along the Gomersall and Dewsbury turnpike road, and was just passing under one of the company's viaducts in the part of the line which was being done for them by Messrs. Crawshaw and Co., when by the carelessness of one of the contractors' workmen a big stone fell from above and crushed him into a jelly. This action was brought by the widow under Lord Campbell's Act, but she was unsuccessful, as the workman whose negligence had caused Mr. Reedie/s death was considered not to be a servant of the railway com- pany, notwithstanding their power to dismiss him for incompetence. To make one person responsible for the negligence of another it must be shown that the relation of master and servant subsisted between them. " I apprehend it to be a clear rule," said Willes, J., in 1870, "in ascertaining who is liable for the act of a wrong-doer, that you must look to the wrong-doer himself or to the first person in the ascending line who is the employer and has control over the work. You cannot go further back and make the employer of that person liable." Murray v, A contractor exercising an independent employment is not the w"Tfi L. servant of the person who engages his services, and does not make such person liable for any torts he may commit. Nor, again, is a ,,.„. , ,., ,, Milhgan, v. sub-contractor the servant of the contractor who has employed him. Wedge, A railway company entered into a contract with A. to make part 12Ad.&E. of their line : A. contracted with B. to build a bridge in that part of the line : and B. in his turn contracted with C. to erect a scaffold, which was necessary for the building of the bridge. Through the negligence of C.'s workmen somebody tumbled against the scaffold, and by and by brought an action against B., the builder of the bridge, for personal injuries. But it was held that he ought to have sued C, if anybody. Knight There are, however, some exceptional cases in which a person v. Fox, employing a contractor is liable for the contractor's wrongful Exch. acts : — 1. Wliere the employer personally interferes. The proprietor of some newly built houses had his attention drawn by a policeman to the fact that a contractor he had employed to make a drain had left a heap of gravel by the road side. The proprietor said he would get it removed as soon as possible, and paid a navvy to cart it away. The navvy did not do his work thoroughly 202 LEADING CASES MADE EASY. enough, and a person driving home was upset and injured. In an action by this person against the proprietor, Quurman v. Burnett was cited for the defence and it was urged that it was the contractor who was liable. But the proprietor was held liable, on the ground that it did not appear that the contractor had undertaken to remove Burgess the gravel, and the proprietor had busied himself about it. v. Gray, 2. Where the thinq contracted to be done is unlawful. A company, without the special powers for that purpose which they ought to have had, employed a contractor to open trenches in the streets of Sheffield. The plaintiff walking down the street fell over a heap of stones left there by the contractor, and broke her arm. She succeeded in getting damages out of the company, the distinction being clearly drawn between a contractor being employed Ellis v. to do something lawful and to do something unlawful. Sheffield 3 Where the thing contracted to be done is perfectly lawful in itself, sumers'Co. ou ^ injurious consequences must in the natural course of things arise, 23 L. J. unless effectual means to prevent them are adopted. ^' ■"' 4. Where the employer is bound by statute to do a thing efficiently, oiver v, j^ railway company were authorised by Act of Parliament to 1 Q. B. D. make an opening bridge over a navigable river. They employed a contractor, and that gentleman ingeniously made them a bridge which wouldn't open. The plaintiff's vessel was in consequence prevented from navigating the river, and the company were held Hole v. responsible to him. Sitting- bourne By. Co., 6 H. &N. Responsibility of Master for Torts of Servant. [119.] LIMPUS v. LONDON GENERAL OMNIBUS CO. [32 L. J.] " During the journey," say the regulations of the London General Omnibus Company, " he must drive his horses at a steady pace, endeavouring as nearly as possible to work in conformity with the time list. He must not on any account race with or obstruct another omnibus, or hinder or annoy the driver or conductor thereof in his business, whether such omnibus be one belonging to the company or otherwise." In defiance of this excellent rule one of the LEADING CASES MADE EASY. 20.3 company's drivers, between Sloane Street and South Kensington, obstructed and upset a rival 'bus belonging to the plaintiff. In an action for the damage so done it was urged for the defendants that the driver was acting contrary to his orders, and therefore outside the scope of his employment. This contention, however, was not successful, for it was held that, tho' the driver had acted recklessly and improperly and in flat disobedience to his express orders, he had acted, as he thought, for the good of his employers, and sufficiently in the course of his employment to make them liable. POULTON v. LONDON & SOUTH WESTERN [120.] RAILWAY CO. [L. E. 2 Q. B.] Mr. Poulton, a horse dealer, took a horse to the Salisbury Agricultural Show, and, after winning any number of prizes, returned with it to Romsey. When he arrived at his destination he gave up a ticket for himself, and a certificate for his horse. This, however, did not satisfy the station-master, who called upon him to pay 6s. 10c?. for the carriage of the horse, under a mistaken notion that it could not be carried free by that train. Poulton refused to pay this sum, and was consequently arrested by a couple of policemen acting under the station- master's orders, and detained in custody till it was found by telegraphing that Poulton was right and the station- master wrong. The injured horse-dealer now brought an action against the railway company for false imprisonment, but was bowled over on a point of law. They successfully answered his claim by saying that, as they themselves would have had no right to apprehend the plaintiff for not paying 204 LEADING CASES MADE EASY. his horse's fare, so their servant the station-master could have had no implied authority from them to do what he did. In order that a master maybe responsible for a tort committed by the servant, the latter must have been acting in the course of his regular employment. If while driving me, or driving on my business, my servant negligently injures a person, I am clearly liable. So am I even if the accident occurs while the servant is temporarily deviating for a purpose of his own. A contractor gave strict orders to his workmen that they were not to leave their horses, or to go home during the dinner hour. One of them, however, had the temerity to disobey these orders. He went home to his dinner a quarter of a mile off, and left his cart and horse standing unattended outside. They ran away and injured the plaintiff's railings. The man's master was held responsible on the ground that the workman was acting within the general scope Whatman of his authority to conduct the horse and cart during the day. v. Fearson, jj u {. ^ ^ e en terprise is entirely the servant's, — if, for instance, he 3 'q j> takes his master's carriage without leave for purposes entirely his own, — the master is not responsible. One May Saturday in 1869 a city wine-merchant sent a clerk and carman with a horse and cart to deliver wine at Blackheath, and to bring back a quantity of empty bottles to the offices, which were in the Minories. On the homeward journey, after crossing London Bridge, they should have turned to the right ; instead of that they turned to the left, and went in the opposite direction on some private matter of the clerk's. While thus going quite against their orders they ran over a child. It was held Storey v. that the city wine-merchant was not responsible. It is obvious, s on, however, that these two cases run somewhat fine. 4 Q. B. The point, of course, is often taken for the defence in this class of cases, that the person causing the mischief was not the defendant's servant so as to make him liable. On this subject the student should 2 Q. B. D. refer to the recent cases of Venables v. Smith and Steel v. Lester. 3 C. B. D. I" the former case it was held that the proprietor of a cab was re- sponsible to the plaintiff for a drunken driver's knocking him down. Strictly, the relation between the proprietor and the driver is that of bailor and bailee, but the effect of the Acts of Parliament regulating cabs is, in the interests of the public, to render the proprietor respon- sible for the torts of the driver. In Steelv. Lester the action was brought by the owner of a wharf at Spalding for injury done to his wharf by a sloop which, through the negligence of her master, a man named Lilee, had broken loose from her moorings. The sloop really belonged to Lester, and he was registered as the owner ; but Lilee did not merely act as his hired servant : there was an agreement between LEADING CASES MADE EASY. 205 them by which Lilee not only had complete control over the vessel, but pocketed two-thirds of the net profits. In spite of this agreement, it was held that Mr. Lester must pay for the mending of Mr. Steel's wharf. In Lucas v. Mason, decided rather earlier than the two L. R. 10 cases just referred to, the action was by a man who had been turned -^ x * out of a Church Liberation Association meeting in Lancashire against the chairman, who had said, " I shall be obliged to bring those men to the front who are making the disturbance. Bring those men to the front." It was held that there was not the ordinary relation of master and servant here, and that the chairman was not responsible. A man is not answerable for the tortious acts of his servant whom he has lent to another, committed while in the service of that other. This was lately held in a case in which some colliery proprietors had agreed with a Mr. Roger Whittle that he should do some sink- ing and excavating for them, and that they should place certain of their servants under his entire control. One of these servants, an engineer named Lawrence, fell asleep when he ought to have been particularly wide awake. It was held that the plaintiff, who had suffered injury in consequence, could not maintain an action against the colliery proprietors, because, tho' the engineer remained their general servant, yet he was acting as Whittle's servant at the time of the accident. Rourke v. A master is never responsible for the wilful and malicious act of whtieMoss his servant, even while acting in his employment. If, for example, c 2 C a driver were to lose his temper, and, out of angry feeling, were to P. D. drive his master's carriage against another carriage, and so bring about an accident, the master would not be responsible. As Lord Kenyon said in a well-known case on the subject, " When a servant quits sight of the object for which he is employed, and with- out having in view his master's orders pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and his master will not be responsible for such act." Macmanut It is scarcely necessary to say that a master is not responsible v - Cricket, criminally for the acts of his servants. In a verv recent case it was „ , n . , ..',, .,,„ Reg- v. attempted to make a newspaper proprietor criminally responsible for jjolbrook a libel which his editor had inserted without his employer's know- 4 Q. B. D. ledge or authority. But the attempt failed, as it deserved to. " I think," said Lush, J., " the jury ought to be told, in this as in every other case, that criminal intention is not to be presumed, but is to be proved ; and that, in the absence of any evidence to the contrary, a person who employs another to do a lawful act is to be taken to authorise him to do it in a lawful and not in an unlawful manner. This is the doctrine which is applied to other cases of wrongs done by servants when it is sought to fix with criminal liability the employer, and the statute intended to place libel on the same footing 206 LEADING CASES MADE EASY. as other torts . . . Altho' the employer is liable civilly for such a wrong, this is not upon the presumption of authority but by virtue of the maxim ' res2)ondeat superior,' which on grounds of policy and general convenience puts the master in the same position as if he had done the wrong himself, a maxim which, as I before observed, pertains to civil and not, except in rare instances, to criminal liability." 3 E. & E . The cases of Goff v. Great Northern Railway Company and Bayley L.R7C v. Manchester, Sheffield & Lincolnshire Railway Company (in both P. See which cases innocent passengers were roughly handled by over- mo vigilant railway servants), and the very recent case of Bank of New Greenwood, South Wales v. Owston (where it was held that the arrest and prose- 7 H. & N. cu tion of offenders is not within the ordinary scope of a bank- L. R,App. mana g er » s authority) may with advantage be consulted by the June 1879. student on this subject. Ruinous Premises. [121.] TODD v. FLIGHT. [9 C. B. N. S.] The late lamented Mr. Flight, — the memory of the litigious is blessed, — bought a shaky old house next door to the plaintiff's chapel, and let it to a tenant. By and by, of course, the house tumbled down on the chapel, and did it the mischief in respect of which this action was brought. Mr. Flight's answer to the claim was — "The occupier, my tenant, is responsible; not I, the innocent reversioner." But it was held that, as Flight had let the house when he knew the chimneys to be in a very danger- ous condition, and as the building had fallen by the laws of nature and not through the default of the tenant, it was he who must pay. Among the perils and dangers of life, a London street is none of the least. Not only is the wayfarer exposed to the unprovoked attacks of devious drivers and of elderly gentlemen who flourish their umbrellas, but he is constantly trusting himself to iron gratings LEADING CASES MADE EASY. 207 and glass coverings which may or may not give way and precipitate him down some unfathomed abyss from which he will be fortunate if he emerge a shattered nipple and excited litigant. Reader, since tliis may be thy fate, consider whether thou wouldst more wisely bring thine action against him that occupieth or against him that hath the fee. The general rule is that the occupier, and not his landlord, is responsible for any injury arising to a third person through the premises being out of repair. And it does not much matter how careful he has been, if he has not succeeded in making his premises safe. A year or two ago a good old woman was toddling down the Strand one afternoon when a large lamp which was suspended from the front of a house, and projected several feet across the pavement, fell upon her, and injured her severely. The occupier of the house was tenant under a lease, and a short time before had noticed that the lamp was getting out of repair, and had employed a competent contractor to put it right. He thought, therefore, that lie had done as much as could be expected of him. He thought wrong. " The question is," said Lush, J., "What is the duty of an occupier who has a lamp in the position of that of the defendant % Is it his duty absolutely to maintain that lamp in proper repair, or to employ a competent person to repair it ? I apprehend that the wider duty is incumbent on the occupier." And so they all apprehended, and the plaintiff got £40. Tarry v. Where, however, the lessor is really more to blame than the lessee -Askton, for the condition of the premises, then it is different, and the action JJ* ' . Div. must be brought against him. Todd v. Flight illustrates this. The premises were in a shameful condition, and Flight ought not to have let them without making them safe. So too, if, by the terms of the lease, the landlord is to do the repairs, the action must be against him. In one of the most recent cases on the subject, where an in- sufficiently fastened chimney-pot had been dislodged by a high wind, and tumbled on a pot-man's head, the court said, — "We think there are only two ways in which landlords or owners can be made liable in the case of an injury to a stranger by the defective repair of premises let to a tenaut, the occupier, and the occupier alone, being prima facie liable, — first, in the case of a contract by the landlord to j\i e i so do the repairs, where the tenant can sue him for not repairing ; Liverpool secondly, in the case of a misfeasance by the landlord, as, for in- ^ r ^ wer y stance where he lets premises in a ruinous condition." p "t% A couple of coal-shoot cases often referred to (in both of which the landlord was held not liable) are Pretty v. Bickmore and Gwinnett l. R. 8 v. Earner. C. P. L. R. 10 C. P. 208 LEADING CASES MADE EASY Damage from Sparks of Railway Engines. [122.] Jones v. Festiniog Ry. Co., L. R. 3 Q. B. Fremantle v. L. & N. W.Ry.Co., 10 C. B., N. S. L. R. 6 C. P. VATJGHAN v. TAFF VALE RAILWAY CO. [5 H. & N.] A quarter of a century ago Mr. Vaughan was the pro- prietor of a plantation adjoining the embankment of the Taff Vale Railway Company. The grass growing in the plantation was of a very combustible nature, and so were some dry branches. Tn fact the whole was graphically described by the plaintiff himself as being " in just about as safe a state as an open barrel of gunpowder would be in the Cyfarttfa Rolling-mill." One day this susceptible plantation was discovered to be on fire, and eight acres of it were burnt. It was not disputed that it had taken fire from a spark from one of the defendants' engines, but they contended, and it was decided, that they were not respon- sible, as they were authorised to use such engines, and had adopted every precaution that science could suggest to prevent injury. If, however, a company is not authorised by statute to run loco- motive engines, and yet do so, they are liable for injuries resulting, tho' negligence is expressly negatived. On the other hand, if a com- pany has been guilty of negligence — indeed, if they have not adopted the latest appliances to prevent danger — they will be liable altho' authorised by statute. An important case, decided about ten years ago, is Smith v. London & South Western Railway Company. In the middle of a hot summer some workmen of the company, who had been cutting the grass and trimming the hedges by the side of the line, left the trimmings and stuff lying about in heaps instead of carting them all away. After the heaps had been there a fort- night, they were one fine day — presumably from the sparks of an engine of the company that had just gone by — discovered to be on fire. The fire was fanned by a high wind, and finally burnt down the cottage of Mr. Smith, two hundred yards off. It was held that the defendants, tho' their engines were of the best possible construc- tion, were responsible for the damage thus done. LEADING CASES MADE EASY. 209 The law was formerly much stricter about the safe keeping of fire thau it is now. A man was responsible for an accidental fire which broke out on his premises and burnt his neigli hour's house. And in clays when houses were mostly made of wood it was quite right to be strict. But by 14 Geo. III. c. 78 (the Building Act) it was pro- vided that " no action should lie against any person in whose house, chamber, stable, barn, or other building, or on whose estate any fire should . . . accidentally begin." A case of some celebrity on Sect. 86. the subject is Vaughan v. Menlove. A farmer in Shropshire had 3 Bing., a hayrick in a highly dangerous condition. It smoked, and steamed, JN ' u and showed unmistakable signs of being about to take fire. To the advice and remonstrances of his neighbours, who pointed out its con- dition, all the answer the farmer vouchsafed was, " Oh, nonsense ! I'll chance it.'' Finally, indeed, he did take a kind of precaution : he made a chimney through the rick ; which, tho' done with good in- tentions, was scarcely wise. The rick took fire, and burnt the plain- tiffs cottages in the next field. For this damage the farmer was held responsible. " The care taken by a prudent man,'' said Tindal, C. J., "has always been the rule laid down ; and as to the supposed difficulty of applying it, a jury has always been able to say whether, taking that rule as their guide, there has been negligence on the occasion in question." Support from Neighbouring Land. SMITH v. THACKERAH. [123.] [L. R 1 C. P.] This was a battle between a well and a, wall, in which the wall came off second best. Mr. Smith having built a wall close to the edge of his land, his neighbour, Mr. Thackerah, proceeded to dig a well on his own land, but within a few feet of the wall. This was all very well, but the consequence was, down went Smith's wall. Smith now went to law for the injury done to his wall, but, as it appeared that, if there had been no avoiding on Smith's land, he would hare suffered no appreciable damage by p 210 LEADING CASES MADE EASY. Thackerah's proceedings, it was held that he had no right of action. Every man must so use his own property as not to injure his neighboiu's. In virtue of this principle an owner of land is en- titled to require that his neighbour, whether he be the owner of the subjacent soil or of the adjacent land, shall not so treat it as to deprive him of due support. This right, however, exists only in favour of land unweighted by buildings, that is to say, of land in its natural state. The most obvious common sense dictates that a person has no business to load his own soil with buildings in such a way as to make it require the support of his neighbour's land. Such rights to support, however, may be acquired by grant or prescrip- tion. This grant may be implied. For example, when one man sells (another) part of his land for building purposes, he impliedly grants sufficient lateral support from his adjacent land for such buildings. He would not be allowed, for instance, to work mines Elliot v. dangerously near to them. And, even if there is no such easement N. E. Ry. by grant or prescription, yet, if the damage done to the dominant L° • and ^ ant * * s s0 cons id eraD l e as *° De actionable, damages may be recovered Siddons v. for injury sustained by recently erected buildings. " The moment Short, £] ie i U ry found," said Pollock, C.B., in Brown v. Robins, " that the 9 C P D subsidence of the land was not caused by the weight of the super- Jlobins 4 incumbent buildings, the existence of the house became unimportant H. & N. in considering the question of the defendant's liability. It is as if a mere model stood there, the weight of which bore so small a proportion to that of the soil as practically to add nothing to it." Thus, if in Smith v. Thackerah, it had appeared that Smith's land in its natural state would have suffered appreciable damage by Thackerah's well, Smith would have been entitled to claim com- pensation for the injury occasioned to his wall. As to the support given by one house to another adjoining, the Angus v. following remarks of Thesiger, L.J., in a recent case may be quoted : Dalton, " The riiis-feasance in distraining makes a landlord trespasser ah initio. And effect was once given to this corollary. If a landlord perpetrated a siugle irregularity it vitiated the whole proceedings. This was considered hard on landlords, and Parliament interposed. As the law stands at present, a landlord, who is really owed rent, is not to he considered a trespasser ab initio merely for the sake of an irregu- larity. But he will still be considered a trespasser ab initio if he H Geo. IT. distrains in an unauthorised way as distinguished from merely being irregular. To illustrate this distinction, if he were to distrain on his tenants during burglars' hours, he would become a trespasser ab initio, for a distress must be made between sunrise and sunset ; but if he were to sell his tenant's goods without appraising them, he would be guilty merely of an irregularity, and it would be necessary for the tenant to prove special damage. So again, breaking open an outer door would make the landlord a trespasser ab iyiitio, but making use of articles distrained, at all events if they would be none the worse for the user, would not. A landlord may be trespasser ab initio as to part of the thing he distrains on, and not as to the rest. So it was held in a case in which a landlord had distrained a quantity of barrels of beer, and only helped himself out of one barrel. Dod v. Jjlo O OCT* It has been held that if an entry is so made as to amount to trespass 6 Mo ^ ' ^ ab initio, the damages which the injured tenant can recover are the see Harvey whole value of the goods taken. The defendant cannot set off against v - ^S ^' it any sum that may have been due to him for rent, for the plaintiff can claim to be placed in precisely the same position he was in before the trespass. Attack v. S. L. C, in connection with the leading case, invites the student's »« &.g' attention to the famous case of Taylor v. Cole, a dispute about the 3 -p R King's Opera House, in which R. B. Sheridan was involved, where it was held that in a count for trespass by entering the plaintiff's house, and expelling him therefrom, a plea justifying the entry is sufficient, and the expulsion is mere matter of aggravation. As against a trespasser the owner of laud is justified in making a forcible entry upon his land, tho' he is liable to be indicted at the suit of the public. Newton v. Horland, 1 M. & G., and Harvey v. Bridycs, 1 Excii. 220 LEADING CASES MADE EASY. Actions against Sheriffs, &c. [128.] SEMAYNE v. GRESHAM. {Sometimes called Semayne' s Case.) [5 Coke & S. L. C] • Berisford and Gresham were two gay young sparks of the sixteenth century. They were great chums, and lived together in a house of which they were joint tenants in the fashionable and salubrious suburb of Blackfriars. Berisford, as is the manner of gilded youth, plunged deeply into debt, and one of the largest and most pressing of his creditors was a gentleman who may or may not have been his tailor, a Mr. Semayne, to whom he " acknowledged a recognisance in the nature of a statute staple"; — a ceremony which, I presume, would be pretty much like a Berisford of our day giving an I. O. U., or otherwise committing himself on paper. In these impecunious circumstances, he was lucky enough to die, and, by right of survivorship, the ownership of the house in Blackfriars became vested in the bereaved Gresham. Now, in that house were " divers goods " of the late Mr. Berisford, and to these, in virtue of the little formality of the statute staple, Semayne not unreasonably considered himself entitled. Accordingly, he gave instructions to the sheriffs of London to go and do the best they could for him, and those functionaries, armed with the proper writ, set off for Blackfriars. But, when they came to the house, Gresham, who had an inkling of what they had come for, shut the door in their faces, " whereby they could not come and extend the said goods." It was for thus "disturbing the execution," and causing him to lose the benefit of his writ, that Semayne brought this action. Much, however, to his surprise and disgust, LEADING CASES MADE EASY. 221 he did not succeed, for the judges said Gresham had done nothing wrong in lucking the front door, and that, even when the king is a party, the householder must be re- quested to open the door before the sheriff can break his way in. Semayne's case is the chief authority for the popular legal maxim, which says that every Englishman's house is his castle — domus sua est cuique tutissimumrcfiujium — a maxim which, in the lawless times f i om which our common law comes, was of the utmost importance, for what the law cannot do in that it is weak, a man must u!o for himself. The sanctity of home and hearth must be maintained at any cost. Happily, however, through the march of civilisation, the maxim has lost nearly all its old importance, and an Englishman's house is his castle for very few purposes indeed. An Englishman's house is not his castle when the king is a party, which he is whenever the Englishman is " wanted " for a felony or misdemeanour. But even then, before the outer door is broken open, the caller ought to ask to be allowed to enter quietly. An Englishman's house is not his castle when the outer door is open. The sheriff, having gained admission into the house, may break open as many inner doors as he pleases. Hutchin- An Englishman's house is not his castle when some adventurous S £- \ Tittlebat Titmouse has got the better of him in an action of ejectment. In 4 Taunt, this case, of course, it has ceased to be his house, and if he won't go, he must be made to. An Englishman's house is not his castle for anyone except himself and his family. He may not shelter therein a person who flies thither for the purpose of evading the law. If, however, the sheriff gets inside only to find that the man he is in search of is not there, nor his goods either, he is not only a blunderer but a trespasser, and the injured Englishman can bring an action agaiust him. Cooke v. Finally, the maxim that " every Englishman's, &c," refers only to J'-' . his dwellingdiouse. Except, indeed, in the case of distress for rent, /?,.„„.„ v the outer doors of barns and outhouses detached from the dwelling- Giant, house may be broken open with impunity. The distinction in this 16 Q- B. last case has been stated to be " between the powers of an officer acting in execution of legal process and the powers of a private individual who takes the law into his own hands ami for his own purposes." Another distinction between a landlord and ;i sheriff is that the former cannot distrain al all hours, while the latter can. On the point, what degree of violence constitutes a breaking of the outer door, the cases are not altogether reconcileable. It is said by some authorities that it is a trespass for the sheriff merely to open the door in a gentle and ordinary manner, but it is doubtful if the 222 LEADING CASES MADE EASY. law is really so severe on him as that. It has been held, however, that a landlord levying a distress is not justified in opening a window Hancock v. fastened by a hasp, or in gaining access to the premises by getting tic*% over a lligh wall# N, g_ It was held in the leading case that altho' the sheriff is a trespasser, Scott v. ve t the execution may be good. And this is still so, only that the Buckley, court may, if it pleases, in the exercise of its summary jurisdiction, N „' '' set the execution aside. Trover y &c. [129.] ARMORY v. DELAMIRIE. [1 Str. & S. L. C] A youthful chimney-sweeper was fortunate enough to find a very valuable jewel. You or I, had we found such a treasure, might have taken it to the nearest police station. Not so our young friend. By his lights finding was keep- ing, and he took it to a jeweller's to ascertain its value. The jeweller, taking advantage of the boy's simplicity, told him it was a rubbishy thing, and offered him three halfpence for it, — a munificent offer which the lad declined without thanks, and demanded his prize back. " For all his words they gave him for the nones The socket empty and withouten stones, And laugh upon him and gan call him thief: Therefore full wisely telleth he his grief To men of law, which answered him anon." And what the men of law answered him anon was to this effect : — " You have fairly found this jewel, and no- body except the real owner has a better title to it than yourself; till he shall appear, you may keep it against all the world, and maintain trover for it." There is no truth whatever in the vulgar aphorism of schoolboys and the lower classes that finding is keeping. The duty of the LEADING CASES MADE EASY. 223 finder of a jewel, or other valuable article, is to discover, if he can, the person who has lost it ; and if he keeps it, when he knows pretty well who that person is, he is guilty of larceny, and no one more richly deserves twelve months' imprisonment with hard labour (a). The chief point on which Armory v. Delamirie is an authority is as to what is sufficient to enable a person to maintain an action of trover. It is not merely the person in whom resides the right of property who can maintain such an action. Armory had not that right. It was all along in the person who had lost the jewel. All Armory had was the right of possession ; but it was considered that that was quite a sufficient foundation for an action of trover as against a mere wrong-doer. On the same principle (viz., that mere possession is sufficient as against a wrong-doer) rests a well-known rule in actions of ejectment, namely, that the plaintiff must recover by the strength of his own title, and not by the weakness of his opponent's. Possession, as the popular adage has it, is nine-tenths of the law. A man in Bedfordshire enclosed some waste land, and died without having had it for twenty years. It was held that the heir of his devisee could maintain ejectment against a person who had entered upon it without any title. Asher v. It is on the same principle that the rule in pleading that a command T i °| ' can be denied rests. The position the person so pleading takes up Q. b. is this : " Granted that the person you profess to represent has better right than I have, yet you don't represent him ; he never told you, for instance, to come and take my cattle. I may not have a right against all the world, but I have a right against you." Chambers So a defendant in possession may set up a jus tertii — that is, the v - D ona ld m right of a third person — to the lands, to disprove the claimant's -q 'j] as t. alleged right. and Dobree Armory v. Delamirie also illustrates an important maxim of the w -^ a P ier i .... 2 Bing., law, — omnia prcesumuntur contra spoliatorem; that is to say, every ^. Q m presumption shall be made to the disadvantage of a wrong-doer. Carter v. Delamirie refused to produce the stone when he gave back the Bernard, 1 ^ O ~R socket, so it was presumed as against him to be the best kind of stone that would fit the socket. So, if a man withholds an agreement under which he is chargeable, it is presumed as against him to have been properly stamped. A person once claimed a debt from another, Crisp v. the proof of which was to be found in certain documents which were Anderson, sealed up and in his keeping. Without having any business to do Stark. so, he broke the seal and opened the bundle of documents. The court did not in the least doubt that all the papers were before it, (a) If, however, at the time of finding he intends to restore it to the owner, his afterwards altering his mind and determining to keep it will not make him (legally) guilty of larceny. Preston's Case, 2 Den. 224 LEADING CASES MADE EASY. and did not doubt the justice of the claim, but the creditor's whole demand was disallowed in odium spoliatoris. So where a diamond necklace was missed, and part of it traced to the defendant, who Mortimer could give no satisfactory account of how it came into his possession, v. Cradock, it was held that the whole necklace might be presumed to have come p p into his hands so that he must pay the full value. A third point was decided in the leading case, viz., that "a master is answerable for the loss of a customer's property intrusted to his servant in the course of his business as a tradesman." The res- ponsibility of a master for the torts of his servant will be found treated of in this volume under the leading case, Limpus v. General Omnibus Co., p. 202. [130.] Conversion. HILBERY v. HATTON. [2 H. & C] Mr. Hilbery, a Liverpool merchant, was the owner of the ship John Brooks, which in 1862 was chartered to take a cargo to Africa. The ship arrived off the coast of Africa, but unfortunately managed to get stranded there. A per- son named Ward, the consignee of the cargo, took posses- sion of the vessel and without any authority had her put up for sale. One Thompson, the agent of the defendants, some English merchants, finding her going cheaply, bought the ship for his principals without knowing that Ward had no business to sell her. The defendants on being apprised by Thompson of what he had done wrote back to him — " You do not say from whom you bought her, nor whether you have the register with her. You had better for the present make a hulk of her." In an action by Hilbery it was held that there was evidence of a conversion by authority of the defendants, in spite of their having acted with as much circumspection as men well can act with. LEADING CASES MADE EASY. 225 This case is selected as illustrating the severity with which the law views the intermeddling with another man's property. The recent case of Kirk v. Greyory, where the defendant had removed 1 Ex. Div. some jewellery from the room of a dying man under the reasonable fear of its being stolen, may also be referred to. Hiort v. Bott too is a good illustrative case. An ingenious scoun- L. R. 9 drel, named Grimmett, persuaded the defendant to indorse to him a -kxeh.;and delivery order for some barley, which he said had been sent to the other con- defendant by mistake. In spite of his good intentions, which were sequences simply to correct what he believed to be an error, the defendant ~ . r " r J ' Grim- was held liable. mett's Every one who takes part in the wrongful conversion of another frauds man's property is responsible, even tho' he is only a servant obeying j . Kr'-ar his master's orders. " The only question is," said Lord Ellenborough Ry, Co., in the case last referred to, " whether this is a conversion in the 40 L. T., clerk which undoubtedly was so in the master. The clerk acted ' ' under an unavoidable ignorance and for his master's benefit when ^,7,,.,^/ he sent the goods to his master ; but, nevertheless, his acts may 4 M. & S. amount to a conversion ; for a person is guilty of a conversion who intermeddles with my property, and disposes of it, and it is no answer that he acted under authority from another who had himself no authority to dispose of it. And the court is governed by the principle of law, and not by the hardship of any particular case." About a couple of years ago the owner of some cabs let them to a Mr. Peggs, . cab-master, under a certain agreement. Mi*. Peggs fraudulently got the defendant, an auctioneer, to sell them by auction. Tho' the auctioneer had thought all the time that the cabs belonged to Peggs, and had acted in a straightforward and correct manner, he was held liable in conversion to the true owner. Cochrane " The defendant," said the court, "had possession of these goods ; he v - -SymiB, advertised them for sale ; he sold them, and transferred the property ^ g\ '' , in them, and, therefore, from beginning to end he had control over see Hollins the property ; and unless we are prepared to hold contrary to all the v - *?mnUr % definitions of conversion which have been laid down, we must hold -£ ^ q that such acts amount to conversion." Privileged Communications. HARRISON v. BUSH. [131] [5 E. & B.] At Frome, iu Somersetshire, there was a contested" elec- tion, with the usual allowance of excitement and party Q 220 Hi A DING CASES MADE EASY. feeling. After it was over, Mr. Bush, an elector of Frome, wrote a letter to Lord Palmerston, who was then one of the Secretaries of State, complaining of the conduct of one of the local magistrates during the election, and saying that he had been stirring up and encouraging sedition, instead of putting it down with a strong hand. The magistrate brought this action for libel, but, as Mr. Bush had written his letter with the best intentions and in the discharge of what he considered to be a public duty, he was not successful. A man must always discharge liis duty to society and the public, notwithstanding that it may involve the employment of harsh lan- guage concerning his neighbours ; and therefore such language is privileged. The privilege may be absolute or conditional. Speeches in the House of Commons, or in a law court, are absolutely privileged ; so, too, are the statements of witnesses (at all events if ! relevant), and the fair and impartial reports of newspapers. A year or two ago, an expert in handwriting was asked in cross-examination whether he had not given evidence in a particular case named to him. The witness knew that the suggestion was that he had been grossly mistaken in that case, and, in spite of the magistrate's attempt to re- strain him, blurted out, " I believe that will to be a rank forgery, and shall believe so to the day of my death." It was held in an action for slander that these words, having been spoken by the defendant as a witness, and having reference to the enquiry before the magistrate, his credit as a witness having been impugned, were Seaman v. absolutely privileged. In a still later case, three persons had applied •/' 't 9P * n °P en C0UI "t to a London police magistrate under the Master and P. D. ; Workman's Act for a summons against the plaintiff for wages. The see also magistrate said they must go to the county court, and declined to j/'J V j inS V ' entertain the application. A report of these proceedings appeared in L. R. the newspapers the next day, and the plaintiff brought an action for it. 8 Q. B. It was held, however, that, as the report was a perfectly fair one, it Until v. was privileged. 3 (' P 7) Ordinary communications, however, are not privileged absolutely, but only primd facie : and the rule is that, wherever one person having an interest to protect, or having a legal or moral duty to per- form, makes a communication to another (such other having a corresponding interest or duty), this communication is primd facie privileged. If, for example, a gentleman of shady character were to endeavour to get elected into a respectable club, a member who LEADING CASES MADE EASY. 227 knew something of his antecedents would be justified in making to the committee, or to another member, such a communication as would result in his being duly blackballed. So, too, a master who parts with a servant is justified in telling a person who, with a view to employing the man, enquires about his character, that he is, for example, a thief or a drunkard. Privilege, however, in these cases Pattison v. is not more than a presumption ; and it is open to the plaintiff to J° nes > give proof of " express malice," and show that the defendant's professed zeal for the public, and his desire to do his duty, are all pretence, and that he really has no other object than to injure the plaintiff. Privilege or not is a questiou for the judge, but, when it is attempted to rebut the presumption of privilege by proof of express malice, the question becomes one for the jury- Cooke v. 11*7/-. An interesting case on privileged communications has lately come ,. L e l'-n before the Exchequer Division. It having been determined to and see the restore Skirlaugh Church, an ancient Cothic edifice near Hull, the recent case committee were thinking of putting the work in the hands of Botte- °,. , v ' e r -*•& ^ Molyneux, rill & Co., some Hull architects, when they received a memorial 3 Q. b. D. from the defendant, a clergyman, a resident in the neighbourhood, and a member of the Society for the Protection of Ancient Buildings and Monuments, recommending them not to do so, as Botterill & Co. were Wesleyans, and knew nothing about church architecture. It was considered that this letter of the aesthetic clergyman was not entitled to any particular privilege, and the architects were allowed to keep the verdict with substantial damages which the jury had given them. Botterill v. It may be remarked that, even when a communication is privileged, J Jf^' it must be made temperately and judiciously. It is one thing, for jji v ' j) ec instance, to make your communication in a sealed envelope, and 6th, 1879. another to make it unnecessarily by a telegram, which in the course of its transmission must of course be read and giggled over by a number of clerks. In a very recent case in Ireland it appeared Willicm- that the defendants, some seed merchants, had applied to a customer son v. for payment with & post-card, on which was written — 9 P ' "Sir, — Your plea of illness for not paying this trifle is mere moonshine. We will place the matter in our solicitor's hands if we have not stamps by return, if it costs us ten times the amount.'' The customer brought an action for libel, and the seed merchants set up the defence of privileged communication ; but the court, following Williamson v. Freer, held that the defendants, tho' the communication might be prvmd facie privileged, had gone beyond Robinsonv. their rights in making it by post-card. L. R. I. 4 Ex. Div. Q2 228 LEADING CASES MADE EASY. Torts which are also Crimes. [133.] [132.] WELLOCK v. CONSTANTINE. [L. J. 32 Exch.] This was an action by a female domestic servant against her master for assault. His wife having gone away on a visit, Constantine had taken advantage of her absence to invade the privacy of the maid's sleeping apartments, and had had connection with the plaintiff. On these facts the judge nonsuited Miss Wellock, saying that either the girl had consented to the connection or she had not ; if she had consented, no assault had been committed ; and, if she had not consented, Constantine had committed a rape, and must be tried for that before any civil action could be brought against him. WELLS v. ABRAHAMS. [L. K. 7 Q. B.] Mr. Wells, becoming impecunious, thought it time to make friends with some of the Lost Tribes. He instructed his wife to take a quantity of jewellery, including a magnificent brooch, to the shop of Mr. Abrahams, and get a substantial loan on the security. The negotiations came to nothing, and Abrahams returned a packet purporting to contain the jewellery. When, however, the packet came to be opened, there was no brooch inside, and Mrs. Wells, being of a shrewd and impulsive nature, immediately wrote to Abrahams and charged him with having stolen it. Instead, however, of a prosecution for felony, this action of trover was brought against the Jew, and a verdict was LEADING CASES MADE EASY. 229 found for the plaintiff for £150. The question now was whether the judge ought not to have nonsuited the plaintiff, on the ground that the facts showed a felonious taking of the brooch, and Wellock v. Constantine was cited. It was held, however, that the judge was quite right in not having nonsuited, for he was bound to try the issues on the record. " It is undoubtedly laid down in the text-books," says Lush, J., in Wells v. Abrahams, "that it is the duty of the person who is the victim of a felonious act on the part of another to prosecute for the felony, and he cannot obtain redress by civil action until he has See Crosby satisfied that requirement ; but by what means that duty is to be v - Leng, 12 enforced we are nowhere informed." And probably the result of ^ s ' an Wells v. Abrahams (which, it will be seen, is in direct conflict with Marsh, 6 Wellock v. Constantine) is to render the rule in most cases a nullity. B- & C. Perhaps the best way of enforcing the rule would be for the judge to interpose in a summary way whenever a gross case of the sort comes before him, and to say in an impartial but absolute way — " 1 can't allow this case to go on. If what these witnesses say is true, the defendant is guilty of a felony, and he must be tried for it before any one can bring an action against him." A perusal of the judg- ments in the recent case of Ex parte Ball (where the question was jq Ch Div whether some bankers could prove in bankruptcy for a large sum of money which the bankrupt, one of their clerks, had embezzled, with- out having prosecuted him) will show how doubtful and unsatisfac- tory is the present state of the law on the subject. It is to be observed that the rule only applies w T here the action is against the person guilty of the felony. It does not prevent the suing of an innocent third party. If a person has stolen my books and sold them to a bookseller, I may bring an action of trover against the bonksellei', altho' I have not made the faintest attempt at prosecuting the thief. It is also to be observed that the rule applies Wldte v. only to felonies. For a misdemeanour, such as assault or libel, the Spettiyuc, aggrieved person may bring an action quite regardless of the fact w . ' j that the defendant is really a criminal. see Osbom V. (rillett, L. R. 8 Exch., and 9& 10 Vict. c. 93, s. 1. 230 LEADING CASES MADE EASY. Privity. [134.] LANGRIDGE v. LEVY. [4 M. & W.] Mr. Langridge, senior, walking one clay down the streets of Bristol, noticed a gun in a shop window with the follow- ing seductive advertisement tied round its muzzle : — " Warranted, this elegant twist gun by Nock, with case complete, made for his late Majesty George IV. ; cost 60 guineas ; can be had for 25." He entered the shop, which was the defendant's, and told him he wanted a nice quiet steady -going gun for the use of himself and his sons. Finally, he bought the elegant twist gun, as warranted. Now, we regret to say, this warranty was false and fraudulent to the defendant's knowledge, and, shortly after the purchase, one of the young Langridges was using the gun in a perfectly fair and sportsmanlike manner when it burst and blew off his left hand. It was this victim of Levy's dishonesty who now brought an action against him, and the chief point relied on by the defendant's counsel was that, if any one had a right to bring an action, it was the father, to whom the gun had been sold ; as for the son, they said, there was no privity of contract between him and the gunsmith. This defence, however, did not succeed, and the youthful Langridge got as much consolation as money could give him for the loss of his hand. A particular transaction may sometimes be looked at as affording the right to bring an action either for the breach of a contract or in tort. Take, for instance, the too familiar case of a railway disaster caused by the company's negligence : the company are liable to the passenger in contract, because they gave him a ticket, and in tort LEADING CASES MADE EASY. 231 because they were not sufficiently careful in carrying him. In such a case as this there is clearly direct privity between the plaintiff and the defendants. But, generally speaking, privity is not necessary to support an action in tort. In Langridge v. Levy the person with whom the Parr?/ v. contract was made, and with whom alone there was privity, was ~, p » * the father, and yet the son was allowed to bring an action and but see recover damages. The reason of this is that Levy had been guilty Collis v. of a tort in making a false representation. If he had made no false . e w\ representation he would have only been liable to the father for c. P. breach of contract. As it was, he was held liable to the son, who confided in the representation, and who, he knew, was going to use it. It is to be observed, however, that if the plaintiff had been a friend of the family whose use of the gun was not contemplated by Levy at the time of the sale, no action could have been successfully maintained. George v. Skivington, where a chemist sold some poisonous L. R. 5 Ex. hair- wash for the use of a customer's wife, is a subsequent case pre- cisely analogous to Langridge v. Levy, with the substitution of negli- gence for fraud. But both these cases must be carefully distinguished from Longmeid v. Holliday, where a tradesman, in all honesty, 6 Exch. warranted a defective lamp to be sound. The lamp exploded and injured a person who was not a privy to the contract, but whose use of the lamp had been contemplated by the seller. This person, it was held, could not maintain an action against him, not in con- tract, because the plaintiff was not privy to the warranty ; not in tort, because the defendant, saying only what he believed to be true? was not guilty of any tort. And, generally, when a wrong is founded on a contract, no one not a privy to the contract can sue in respect of such wrong. A master, for instance, who had had nothing to do with the taking of the ticket, and was not in any way a party to the contract, could not sue a railway company for loss of the services of one of his servants as for a breach of their contract with the man to carry him safely. But if a railway company contract with a Alton v. master to carry his servant, and in doing so are guilty of negligence, Midland which causes bodily hurt to the servant and consequent damage by //"qVt't loss of service to the master, the company may be sued in contract c. P. by the master and in tort by the servant. The very recent case of Marshall Beiringer v. Great Eastern Railway Co. deserves attention. It was v - ' °»*> an action by a father, a batcher, for loss of the services of his son, „ '', X » .. * 7 way Co., who had helped him in the shop. The boy had takeu a ticket from 11 C. B. the London, Tilbury, and Southend Railway Co., and was injured 4 C. P. D. at Stepney by the negligence of the defendant company. The point was raised for the defence that there was no privity of contract between the plaintiff and the defendant. But the court held that 232 LEADING CASES MADE EASY. [135.] the claim was valid, saying, " The claim is against the company, not parties to the contract of carriage, for a pure tort, such as would be committed if a vehicle in the highway were wrongfully driven against, or across the path of, another vehicle, whereby a servant therein was hurt and his master lost his services." Actions against Magistrates. CREPPS v. DURDEN. [Cowp. & S. L. C] It was very wrong, of course, of Peter Crepps to be selling hot rolls on a Sunday morning instead of being at church listening to Mr. Stick -in-the-box, and as it could not well be called a " work of charity " it was no doubt a violation of the Act of Charles II. of pious memory. But the Act provides for a fine of 5s. only to be inflicted on the offender, and, therefore, that worthy magistrate of Westminster, Mr. Durden, had no business whatever to say that because Crepps had sold four hot rolls he should be fined £1 — that is to say, 5s. a roll. This was distinctly laid down to him by Lord Mansfield : " The penalty in- curred by this offence is 5s. There is no idea conveyed by the Act that if a tailor sews on the Lord's Day every stitch he takes is a separate offence. . . . There can be but one entire offence on one and the same day." It occasionally becomes a man's painful duty to bring an action against a magistrate. On this subject the student is referred to 11 & 12 Vict. c. 44, "An Act to protect justices of the peace from vexatious actions for acts done by them in the execution of their office." It is sufficient here to point attention to the first two sections of this Act, which provide that if the act complained of was done by the magistrate as to any matter within his jurisdiction, the plaintiff must show that he acted maliciously and without reasonable and probable cause, and that if it was done in a matter in which the LEADING CASES MADE EASY. 233 magistrate had no jurisdiction, or if he exceeded his jurisdiction, the plaintiff must show that the conviction or order has been quashed. Other sections of this Act specify the time within which the action is to be brought, the notice of action required, the way and effect of tendering amends, &c, and in various other ways the justice of the peace is hedged about and protected against litigious evil-doers. It may be mentioned that the jurisdiction of magistrates at petty sessions is generally ousted if a bond fide claim of right is made by the defendant — the bona fides being a question for the magistrates to determine. But however bond fide the claim may be, it will not oust jurisdiction if it be of an impossible right, such as a claim by a member of the public to fish in a non-navigable river. 24 & 25 Vict. c. 100, s. 46, provides " that nothing therein contained shall authorise any justices to hear and determine any case of assault and battery in which any question shall arise as to the title to any lands." It has been held that this section prevents the magistrates from convicting even in a case where the defendant has used more violence than was necessary. But the terms of a statute may give the magistrates jurisdiction if the claim, tho' bond fide, is unreasonable ; and again, their jurisdiction remains in caseswhere theyare empowered by statute to ascertain a fact which necessarily involves a question of title. Notice of Action. Hargreaves v. Did- dams, L. R. 10 Q. B. Reg. v. Pearson, L. R. 5 Q. B. White v. Feast,Jj.R. 7 Q. B. ; but see Denny v. Thwaites, 2 Ex. Div. ROBERTS v. ORCHARD. [2 H. & C] Mr. Orchard was a draper in Argyle Street, London, and the other litigant had been one of his shopmen. While so employed, Mr. Orchard suspected him of helping himself to a florin on a certain occasion, and gave him into custody. The magistrates, however, thought there was no evidence against the man, and at once discharged him. This was an action for assault and false imprisonment, and the great question was whether the defendant ought to have had notice of action, as provided by 24 & 25 Vict. c. 96, s. 113. That Act of Parliament says that any person [136.] 234 LEADING CASES MADE EASY. "found committing" any offence punishable by virtue of that Act, with the exception of angling in the day-time, may be immediately apprehended without a warrant. It was held that it was not sufficient to entitle the defendant to notice of action that he believed the plaintiff to have dishonestly taken the florin ; he was not entitled to such notice unless he believed that the plaintiff had been "found committing " the offence. The proper question to be left to the jury in such a case was — Did the defendant honestly believe in the existence of those facts which, if they had existed, would have afforded a justification under the statute ? A great number of statutes, with the object of protecting persons filliug public offices or discharging public duties, require that a month's notice shall be given before an action can be commenced against them. It is sufficient here, without going in detail into the subject, to warn the student generally against a pitfall into which many an unwary practitioner has tumbled. As to the form of the notice, the statute requiring it should in each instance be consulted. Speakiug generally, however, it may be said that it is sufficient if it conveys to the mind of the defendant reason- Smith v. able information of what the complaint is. In a recent case a man West went to law with a Lancashire Local Board for an injury to his j £r f horse, caused by part of the road over which it was being driven Board, suddenly giving way. In the notice of action which, by the Public 47 L. J. Health Act, 1848 (11 & 12 Vict. c. 63), he was bound to give, the plaintiff only complained of the defendants' non- feasance, whereas, he was really suing them for ??«s-feasance. But it was held that the notice was sufficient in spite of the omission. " The object of a notice of action," said the Court, " is to enable a party to tender amends ; and therefore it is sufficient if it states substantially the nature of the complaint." LEADING CASES MADE EASY. 235 Malicious Prosecution. PERRYMAN v. LISTER. [137.] [L. E. 4 H. L.] Mr. Lister was the owner of a rifle, which was left under the charge of his coachman, one Hinton. One day a man named Perryman happened to call on Hinton, and, seeing the rifle, exclaimed what a capital one it was, and how much he would like to have just such another. Not long afterwards the rifle was missed. Hinton reported the loss to his master, and at the same time informed him that one Robinson, the coachman of a gentleman living in the neighbourhood, had seen it in a barn where Perryman lived, and had asked him what he was doing with Lister's gun, to which Perryman had replied, " It is not Lister's gun ; it is my gun;" but that Robinson said he was sure the gun he saw was the one Lister had missed. Hinton added that he had since gone with Robinson to Perryman 's, and had been shown a gun which was not Lister's, and which Perryman said was the only gun he had. Perryman, having been tried and acquitted on the charge of stealing the rifle, now brought an action for false imprisonment. The judge at the trial directed the jury that, as Lister had not seen Robinson before causing Perryman to be arrested, he had acted on hearsay evidence alone, and without " reasonable and probable cause." This, however, was held to be a misdirection, on the ground that Lister had " reason- able and probable cause" for instituting a prosecution; and the principle was distinctly affirmed that it is for the jury to find the facts on which the question of reasonable and probable cause depends, but for the judge to determine whether the facts found do constitute reasonable and probable cause. 23**> LEADING CASES MADE EASY. In an action for malicious prosecution the plaintiff mu3t prove four things : — 1. That the defendant preferred a criminal charge against him before a judicial officer ; 2. That, in doing so, he acted maliciously ; 3. That he acted " without reasonable or probable cause ;" and 4. That the proceedings terminated in the plaintiffs favour. As to the first of these requisites, " there can be no malicious /Y'rWilles, prosecution until the parties come before a court or a judicial officer." J-> in If a person acting conscientiously, and like an honest man, comes Doivlina before a magistrate and makes his complaint, and the magistrate L. E,. foolishly treats as a felony what is really only a civil matter, and 5 C. P. issues his warrant accordingly, the person making the complaint Whh V ' * s no ^ answerf| hle for the magistrate's mistake. As to malice, it 3 Esp. "will generally be inferred if it be shown that the defendant acted without reasonable and probable cause. But, on the other hand, it would not serve the plaintiff's purpose to prove malice alone, for a person may be actuated by the bitterest malice and yet have Turner v. plenty of ground for prosecuting. A prosecution, which is not Ambler, malicious to start with, may become so by the prosecutor discovering ^' ' that the defendant is really innocent, and yet going on with the pro- Per Cock- secution. Whether there was reasonable and probable cause is, as burn, C. J., -we have seen, a question of law for the judge. On such an enquiry, v Mac n ey id ence that the prosecutor himself did not believe in the truth of kinder, 9 the charge would be very strong. It may happen that the proceed- ed. B.,N. S. i n g S were incapable by their nature of terminating in the plaintiff's Steward v. favour, as in a case where the defendant had maliciously exhibited 7 C. B ' articles of the peace against the plaintiff. In such a case the plaintiff N. S. is excused from the proof. No Contribution between Defendants in Tort. [138.] MERRYWEATHER v. NIXAN. [8 T. E. & S. L. C] Merryweather and Nixan in the fulness of their animal spirits destroyed the machinery and injured the mill of a Yorkshireman named Starkey. The mill-owner was not prepared to submit tamely, and brought an action against LEADING CASES MADE EASY. 237 the pair of them. The jury gave him £840 as damages, and, instead of getting £420 from each he made Merry- weather pay the whole £840. Merryweather, — small blame to him, — did not see why he should pay for Nixan's whistle as well as his own, and sued his "pal" for contri- bution, that is to say, for £420. In fairness, of course, Nixan ought to have made no difficulty about paying it; but he steadfastly declined to do anything of the sort. The law backed him up in this refusal, for ex turpi causa non oritur actio, which means that a man shall not be allowed to found an action on something that he ought to be ashamed of; and Merryweather ought to have been very much ashamed indeed of having injured Starkey's mill. There is no contribution between defendants in tort. In contract there is. If there are two sureties, and one of them is made to pay the whole debt, he can sue his brother surety for half of what he has paid. In such a case there is no turpis causa. See Wkit- But the rule that one tortfeasor cannot sue another for contribu- C jt t7' tion does not extend to the case where the former has acted quite p. 16. innocently in the matter, and was simply obeying what he believed to be the lawful instructions of his employer. Such a person may not only sue for contribution, but may claim an absolute indemnifi- cation. If A. orders B. to drive cattle out of a field, and in obeying D » j o Pearson v. such order B. unwittingly commits a trespass, A. must indemnify Skelton, him ; but it would be different if the order given and obeyed was to 1 ^- & W. commit an unjustifiable assault which B. must have known to be wrong. On the same principle on which the leading case proceeds (ex turpi Atkinson catcsd, dbc.) a person who has paid money in pursuance of an illegal v - Denhy, contract is (unless there has been oppression, or the illegal purpose „ .-. ■ j m .«.* , J • -x Taylor v. has not been carried out) prohibited rrom recovering it. Bowers 1 q.b.'d. McKinnell v. Robin- Measure of Damages in Tort. * ow * 3 m. J s & w. VICARS v. WILCOCKS. r 139 -j [8 East & S. L. C] Stored in his rope-yard, Mr. Wilcocks had a quantity of excellent cordage, which he was disgusted one day to find 238 LEADING CASES MADE EASY. cut to ribbons. " An enemy hath done this ! " was his somewhat obvious exclamation, when he surveyed the scene, and he set himself to discover which particular enemy he had to thank for it. For reasons which the reporter does not favour us with, Mr. Wilcocks's suspicions lighted on one Vicars, the servant of his neighbour, Mr. Joshua Oakley, and not being the man to keep his opinions to himself, he proclaimed loudly on the housetops, and in language more forcible than elegant, that Vicars was the scamp who had cut his cordage. By and by it came to the ears of the worthy Mr. Oakley that one of his servants had been damaging a neighbour's property. He was highly incensed, and, tho' Vicars had been engaged for a year which was not nearly expired, he immediately, and without taking the trouble to sift the matter, discharged him. Turned away by his master, the maligned Vicars sought employment from a Mr. Roger Prudence ; but Roger too had heard of the cut cordage and refused to take the reputed perpetrator of the outrage into his service on any terms. In this extremity a happy thought, as the luckless litigant then considered it, occurred to him : why not bring an action against the owner of the cordage for slander, and lay as special damage the dismissal by Oakley and the rejection by Prudence? Quirk, Gammon and Co. were accordingly instructed ; but the result did not correspond to his sanguine anticipations. Because, forsooth, the first special damage alleged was not the legal but the illegal consequence of Wilcocks's winged words, — illegal, because Vicars had been engaged for a year, and therefore his master could not dismiss him in this summary way, — and because the court considered it was far more likely that Prudence's refusal to employ him arose from the simple fact of his having been dismissed from his last place than from the reason for such dismissal, Vicars got no good by Sfoinsf to law. LEADING CASUS MADE EASY, 2:39 LUMLEY r. GYE. [140.] [2 E. & B.] Mr. Lumley, the enterprising lessee and manager of the Queen's Theatre, engaged a fascinating young lady to sing and perform on his boards for a period of three months. During the three months Mr. Gye, a rival manager, persuaded her to break her engagement, and leave Mr. Lumley ; and it was for this interference that the present action was brought. After numerous wise saws, and instances of various dates, it was held (in spite of the dissent of Coleridge, J., who thought that such an action could only be brought when the strict relationship of master and servant existed) that Mr. Lumley had a perfect right to bring the action and recover damages. Lumley v. G-ye has overruled Vicars v. Wilcocks, which is inserted more for old times' sake than for any special utility it is likely to be of to the studeut. In Vicars v. IVilcocks it was laid down that the damage in respect of which an action is brought must have been the legal consequence of the defendant's act. If, for instance, as the con- sequence of the defendant's slander, a mob had ducked the plaintiff in a horse-pond, such a consequence would be an illegal and un- natural consequence of the slander, and could not be taken into account in estimating the compensation to be paid by the defendant to the plaintiff. Lumley v. Gye, however, alters this rule by allowing the wrongful act of a third party to form part of the damage where sucli wrongful act might be naturally contemplated as likely to arise from the defendant's conduct. The damage, however, must not be too remote. Where, for instance, the defendant libelled a public singer, in consequence of which she broke her engagement with the plaintiff, and would not Ashley v. sing, the plaintiff's injury was considered too remote. So it was too Harrison, in another case, where the manager of a theatre brought an action S P* against a person who horse-whipped one of his actors so soundly as m^L- to prevent him from performing. The cases of Allsop v. Allsop 1 Esp. (where a married lady was made ill by the defendant's imputing 5 H. & N. incontinency to her), Ward v. JVeeks (where somebody repeated 7 King. the defendant's slanderous words), and Huey v. Felton (where a U £*■ B., 9 N. S. 240 LEADING CASES MADE EASY. young man missed an engagement through the defendant's falsely imprisoning him), may also be referred to, all being cases in which the damage was held to be too remote, and not the direct and imme- diate result of the defendant's wrongful act. The rules by which damages are assessed are much looser in tort than in contract. Juries may generally take into account the defendant's motives and means, so that, for instance, in an action for seduction, which in point of form merely purports to give a recompense for loss of services, the plaintiff would recover very different damages according to the fortune of the seducer and the circumstances under which he had accomplished his purpose. Juries in fact, have a very wide discretion, and there seems to be an increasing unwillingness of the courts to interfere with their verdicts on the ground of excessive damages. They may look into all the circumstances, and award damages according to the way the parties have conducted themselves. In one case, where the action was for trespassing on the plaintiff's land, and the evidence showed that the defendant had made use of very offensive language, the jury returned a verdict for .£500 damages, and the court refused to grant a new trial, saying, " Suppose a gentleman has a paved walk before his window, and a man intrudes, and walks up and down before the window, and remains there after he has been told to go away, and looks in while the owner is at dinner, is the trespasser to be per- mitted to say, ' Here is a half penny for you, which is the full extent Merest v. of all the mischief I have done ! ' Would that be a compensation ? " Harvey, On the other hand, where it is evident that the iury have not 5 Taunt . . . . given proper consideration to all the elements of the plaintiff's claim, the courts will grant a new trial on the ground that the damages are Phillips v. insufficient. 6 W. Ry. j n an action under Lord Campbell's Act there are certain definite j5 'j) ' principles on which the damages are to be assessed. The jury must 9 & 10 confine themselves to a pecuniary estimate of the injury the relatives Vict. c. 93. have sustained by the death. Damages cannot be given to soothe Blake v. the feelings of those who mourn the goodman of the house. But a Midi. Ry. reasonaD i e expectation of pecuniary benefit from the continuance of Q. B. " the thin-spun life " can be taken into account. The jury, for in- stance, may give compensation for the loss of the benefit of a superior education which the children would have received if their Pym v. father had lived. Only one action, whether under Lord Campbell's O. N. R. ^ c f. or by the injured man himself, can be brought in respect of per- B. & S. sonal injuries. If the deceased in his lifetime recovered damages for the injury done him, his relatives cannot bring another action after Read v. he is dead. But if a man has been fraudulently induced to accept a G. E. Ry. sum and sign a release by deed — by being told, for instance, that his 3 Q B injuries are of a very trifling nature, and that if he got worse he LEADING CASES MADE EASY. 241 could claim fresh damages — in that case he (or, if he died, his repre- sentatives) could maintain a subsequent action. A policy of in- Hirschfield surance which the injured man may have effected is not to be taken v - L- B. relevant. "Illustrations. — (a) The question is whether A. has a right of fishery in a river. An ancient inquisitio post mortem, finding the existence of a right of fishery in A.'s ancestors, licences to fish granted by his ancestors, and the fact that the licensees fished under them, are relevant. Rogers v. " (b) The question is whether A. owns land. The fact that A.'s Alien, ancestors granted leases of it is relevant." Oainp. By the term " ancient document " is meant one which is more than zw^wL thirty years old. Such a document " comes out of proper custody " 3 Q. B. when it comes from the place where it might naturally and reason- ably have been expected to be found. 4. Hearsay is admissible in favour of declarations made by perso)ts since deceased against their interest. On this subject see Iligham v. Ridgway, p. 247. 5. Also in favour of declarations made by such persons in the ordinary course of their business. On this subject see Price v. Torrington, p. 246. 6. Hearsay is admissible sometimes in favour of dying declara- tions. This, however, is confined to criminal law. And even then a dying declaration is only admitted when the death of the person making the declaration is the subject of the charge, and the circum- stances of the death the subject of the dying declaration. This may sound a hibernianism, but a little thought will convince the student that it is not. The declaration, too, must be made when the declarant has no hope of recovery and is in actual danger of death. 7. Hearsay is admissible as to character. A Yarmouth grocer named Watson wanted some cheese ; so he wrote to a cheese-factor at Leicester asking for some, and said another Yarmouth grocer named Bumpstead would answer for him. On receiving this application the cheese-factor wrote to Bumpstead, and 246 LEADING CASES MADE EASY. asked liini about Watson. Bumpstead replied that to the best of his knowledge Watson was a trustworthy person. Watson turned out an unsatisfactory customer, and the cheese-factor went to law with Bumpstead for a fraudulent misrepresentation. In defence, Bumpstead called a witness who was asked by the defendant's counsel, " Was Watson on the 24th of October, 1860, trustworthy to your belief?" This question was held admissible, Bramwell, B., however, dissenting on the ground that the question was one as to Sheen v. tij e witness's belief, and not as to Watson's reputation. stead 1 & Counsel defending prisoners sometimes ask a witness to character 2 H. & C. " Do you believe the prisoner to be an honest man ? " This, however, is wrong ; what is wanted is, not the witness's belief, but the reputation the prisoner bears with his neighbours. 8. Hearsay is sometimes admissible as part of the transaction, or, as it is technically called, as part of the res gestae. Exclamations at the time of an assault, for instance, can be given in a subsequent action. In a rape prosecution, one of the most important witnesses is usually the woman to whom the girl com- plained. This woman can be asked, " Did she make a complaint to you ? " but counsel is not generally allowed to go further and ask, " What did she complain of ?" as what she said then was not part of the res gestce. Declarations by Persons since Deceased. [142.] PRICE v. TOPvRINGTON. [1 Salk. & S. L. C] This was an action by a brewer against a noble lord for beer which his household had drunk. The practice at the plaintiff's brewery was for the draymen who had taken out beer during the day to sign their names in a book kept for the purpose before they hied them home for sweet repast and conjugal joys. The particular drayman who had taken Lord Torrington his beer was dead, but he had duly made his entry, and the question was whether it was admissible evidence for the plaintiff. It was held that it was, on the ground that it was an entry made by a disinterested person in the ordinary course of his business. LEADING CASES MAD/-: EASY. 247 HIGHAM v. RIDGWAY. [143.] [10 East & S. L. C] When was William Fowden born ? This was the interesting question on which depended vast estates in the county of Chester. Elizabeth Higham laid claim to them by virtue of a certain remainder ; but those who contested her right said that her remainder had been barred by a recovery suffered on April 16th, 1789, by one William Fowden, since deceased. Mrs. Higham's answer to this was that on the day named William Fowden had not yet come of age, and was therefore incapable of suffer- ing recoveries, and barring the remainders of good honest women like herself. So it was that it was strenuously disputed on which side of April 16th, 1768, the late Mr. Fowden had been born. Was he or was he not of age on April 16th, 1789 ? It was of course the object of Mrs. Higham to make out that he was born later than April 16th; and the most important piece of evidence she adduced in support of that view was an entry m the diary of a man-midwife who, like Fowden, had long since joined the majority. In that diary, under the head of April 22nd, 1768, there was this important entry : — "W. Fowden, jun.'s, wife, " Filius circa hor. 3 post merid. natus H. " W. Fowden, jun., " Ap. 22, filius natus "Wife, £1 6s. Id. "Paid, 25 Oct. 1768." This entry was admitted in evidence on the ground that it was a declaration against interest, the law shrewdly suspecting that no one would be such a fool as to put himself down as paid when he had not been. Altho' Price v. Torrington and Higham v. Ridgway are both con- cerned with " delivery," — the delivery of beer and the delivery of 248 LEADING CASES MADE EASY. Chambers v. Bernas- coni, 1 C. M. &K. Sucssx Peerage Case, 11 CI. & Fin. Crease v. Barrett, 1 C.M.&E. Howe v. Malkin, 40 L.T..N.S. Short v. Lee, 2 Jac. & W. Doe v. 1 M. & Hob. babies, — they must not be confused. Because made in the course of business, and because contrary to interest, are two quite different reasons why the entry of a deceased person should be admissible evidence. Moreover, the student must grasp this further distinction. When the entry is admissible as having been made in the ordinary course of the deceased person's business, only so much of the entry as it was the man's -duty to make is admissible ; any other fact which happens to be down in the entry, no matter how naturally, is excluded. In a well-known case it became necessary to show that a person had been arrested in South Molton Street. The officer who arrested him had died since the arrest, but it was proposed to put in evidence a certificate made by him at the time of the arrest which specified, with the other circumstances, the place of the arrest. It was decided, however, that this could not be done, as the officer was going beyond his duty in putting down the particular spot where he bagged his man. A different rule, however, prevails as to entries admissible by reason of being contraiy to interest. Not only is the entry allowed to prove the particular fact which is against the writer's interest {e.g., that he has been paid), but any other facts which may happen to be stated in the entry. It will be seen that, if this had not been so, Mrs. Higham would not have been able to prove by the entry produced the date of Mr. Fowden's birth, for the only part of that entry which was contrary to interest was the acknowledgment of payment, and that fact, however interesting, would scarcely have aided the good woman's contention. Another distinction between the two kinds of entry is that the one admissible because made in the ordinary course of business must have been made contemporaneously. It is sufficient, however, if what happened in the morning has been entered in the evening. The word interest in " conti-ary to interest " refers exclusively to pecuniary or proprietary interest. The entry, for instance, of a deceased clergyman could not be got in evidence to prove a marriage merely by showing that he was liable to prosecution for having assisted in performing it. Provided, however, a pecuniary interest exists, the courts are not critical in weighing the amount of it. The statements of persons in possession of land explanatory of the character of their possession are, if made in disparagement of the declarant's title, good evidence. But the declarations of limited owners will not avail against reversioners or remaindermen. By what is sometimes thought a curious anomaly, entries in the books of deceased rectors are evidence in favour of their successors. It appears to be a moot point whether an entry is admissible as contrary to interest when such entry is the only evidence of the charge of which it shows the subsequent payment. LEADING CASES MADE EASY. 249 Gift. IRONS v. SMALLPIECE. [144.] [2B. & Ald.] Twelve months before his death, and while he believed himself to be still in the prime of life, Mr. Irons, by word of mouth, made his son a present of a pair of horses. The horses, however, were not delivered over by the donor to the donee, but remained in the father's possession until his death ; and this was an action by the son, after the old gentleman's death, to obtain possession of them. In this attempt, however, he failed, on the ground that " by the law of England, there must either be a deed or instru- l-c-, under ment of gift, or there must be an actual delivery of the thing to the donee." And it is said that the necessity for delivery is not dispensed with, altho' the chattel is already in the possession of the donee. Shower v. It is to be observed that, even where there is neither delivery nor jl ' deed, if the donor declares that he retains possession in trust for the donee, equity will enforce the trust. Ellison v. A donatio inter vivos, such as the leading case has to do with, must f 1 ™ on > be carefully distinguished from a donatio mortis causa. A donatio mortis causa is a conditional gift of personalty. The donor would prefer that he himself should be the owner rather than that the donee or anybody else should (a) ; but he expects to die, and, knowing that he cannot carry his property away with him, he hands it over to the donee to be his in the event of death. But the gift will be defeated not only by the donor's getting better, but also by his revoking the gift. Railway stock cannot be given in this way, nor can a cheque, unless negotiated before the donor's death ; but bonds, mortgages, promissory notes payable to order, tho' not indorsed, &c, can. [a) Et in summit mortis causa donatio est cum magis se quis velit habere quam eum cui donatur, magisque cum cuidonat quam hcredem suum. Just. Inst., Lib. 2, Tit. 7. 250 LEADING CASES MADE EASY. Highways. [145.] DOV ASTON v. PAYNE. [2 H. Bl. & S. L. C] Dovaston's complaint against Payne was that he had taken and impounded his cattle without rhyme or reason : — " My kine are gone, and I have no more, Which Payne hath caught and doth keep away," was his melancholy refrain. Called on for an explanation, Payne said he had caught the beasts breaking down his fences and ruining his crops ; he had taken them damage feasant, in fact. Such were the replevin and the avowry. It w T as now Dovaston's turn to plead, which he did to this effect : — " Well but, my friend, if they were, as you say, in your field damaging your crops, and all the rest of it, it was entirely your fault for not keeping your fences in proper condition. There they were, — the sweet innocents, — ' in the highway,' and how could they know where they had a right to go and where they had not ?" The weak point of this pleading, — probably drawn by some youthful barrister called the day before, — was that, by alleging that his cattle were "in" the highway instead of " passing along," Dovaston had not excluded the chance of their being trespassers. They might very well be " in " the highway without being quietly and peaceably " passing along " it, like sober, well-conducted cattle. S. L. C. makes Dovaston v. Payne the peg on which to hang a disquisition on the law of highways, and, as it is a more or less important branch of the law, so will we. A highway may be defined as a passage which all the Queen's subjects have a right to use. Of highways there are several kinds, such as footpaths, turnpikes, streets, and public rivers. LEADING CASES MADE EASY, 251 The amount of* interest that the public have in a highway is well put by Heath, J., in Dovaston v. Payne — " The property is in the owner of the soil, subject to an easement for the benefit of the public." An easement, nothing more. Thus, in R. v. Pratt, the 4 E. & B. defendant was held to have been properly convicted of trespassing in search of game, tho' he did not go off the road. The presumption is, that half the highway belongs to the proprietor of the lands on the one side and the other half to the proprietor of the lands on the other side. Either of these gentlemen could therefore bring an action against a gipsy who permitted his cattle to graze on the wastes by the side of the road. But the presumption may be rebutted, and, indeed, in districts to which the Public Health Act, 1875, applies, it does not arise at all. Coverdale The dedication of a highway to the public is a question of intention, v ' f q" the intention, however, being presumed from user. It is uncertain b. D. how much user is necessary to constitute a dedication, tho' it may be safely said that six years at least is necessary. If an owuer does Rugby not wish the presumption of dedication to arise, he should put a bar ky a>lt!l v ' across, or do some act to show that he does not intend to dedicate. wea tJ lC r Of course, if the act of dedication be unequivocal, the dedication 11 East, may take place immediately. The dedication of a highway may be limited, e.g., for all purposes except that of carrying coal, or where a Stafford v. bridge is to be used only when the river is so swollen that persons ^°y ne yi who attempted to ford it would be drowned, or where a footway is liable to be ploughed up occasionally, or where (but only by virtue of a custom) you and I would not be allowed to go, but only a par- ticularly privileged portion of the public. It is to be observed also that a highway may be dedicated with an obstruction on it, so that the dedicator would not be responsible for an accident happening by reason thereof. In a recent case, the point arose (tho' it became Fisher v. unnecessary to decide it) whether a lessee can dedicate to the public. ^ r £ ws l , -i Probably, however, it may be said, he has not such power. ' The obligation of repairing a highway generally falls on the occu- Biphos- ' piers of lands in the parish through which the highway runs. In cated 1835 was passed the General Highway Act, 5 & 6 Wm. IV. c. 50, ^ < ^° t f '' which provides that the highways shall be kept in repair by a high- jj. S." way rate levied by the surveyor, a personage annually appointed by the ratepayers in each parish. A statute of 1862 enables the justices at Quarter Sessions to form several parishes into one district to be governed by a highway board. In 1878, also, some legislation on the subject took place. It has been held that there is nothing in the 41 & 42 fact of a road having been set out by an award under an inclosure Vlct - c - 77. Act, directing the repair to be done by the adjoining landowners, ^'!'7' ,, to prevent it becoming a highway, repairable by the inhabitants at £,, r_ 9 q large. Sometimes, however, the burden of repairiug falls on a private B. 252 LEADING CASES MADE EASY. person ratione tenurce, by virtue of his having repaired from time immemorial, — a reason which reminds one of the definition of grati- tude, that it is the expectation of future favours. Turnpike roads have toll-gates, and are managed by trustees. They are created by a local Act of Parliament. The present general Turnpike Act is 3 Geo. IV. c. 126, but other statutes have since been passed. In some cases part of the highway rate is ordered to be applied towards the keeping up of turnpikes, for the parish is bound to repair these roads, as well as general highways. Those who ride and drive much are glad to be able to believe that there is a great deal of disturnpiking, and consequent abolition of toll-bars, going on. " Once a highway, always a highway," is a common law maxim ; but power is now given to justices of the peace to divert or extin- guish highways ; and it has been held in a recent case that, when access to a highway has become impossible by the ways leading to it Bailey v. having been legally stopped up it ceases to be a highway. " The Jamieson, g rea t difficulty here," said Denman, J., in the case referred to, " seems ' to arise from the familiar dictum ' once a highway, always a high- way,' and from the necessity of now, for the first time, placing a limitation on it. But I think we are compelled to hold that this is a case where that which formerly was a highway, but which, tho' it has not been stopped by statutory process, has, by reason of legal acts at either end of it, ceased to be a place to which the Queen's subjects can have access, loses its character of a highway." Contracts made Abroad, £fc. [146.] FABRIGAS v. MOSTYN. [Cowp. & S. L. C] By the Peace of Paris, which in 1763 put an end to the Seven Years' War, the island of Minorca in the Mediterranean became a British possession. In 1770 the governor of this island was a gentleman named Mostyn, who apparently was of opinion that he was entitled to play the part of an absolute and irresponsible despot on his small stage. One of his subjects, however, a Mr. Fabrigas, did not coincide with him in this view, and he rendered LEADING CASES MADE EASY. 253 himself so obnoxious that the governor laid hands suddenly on him, and, after keeping him imprisoned for a week, banished him to Spain. It was for this arbitrary treatment that Fabrigas now brought an action at Westminster. Mostyn objected that, as the alleged trespass and false imprisonment had taken place in Minorca, the action could not bo brought in England. But it was held that, as the cause of action was of a transitory and not a local nature, it could. And a British jury gave Fabrigas £3000 damages. Actions were formeidy divided into local and transitory : local, such as could be tried only iu the county in which the cause of action arose (e.g., an action of trespass to land) ; transitory, such as could be tried wherever the plaintiff chose (e.g., an action for an assault). But, through a provision of the Judicature Act, which abolishes local venue and allows the plaintiff, subject to its being changed by a judge, to name any county he pleases for the place of trial, the case has lost its old importance, and governor Mostyn and his doings are chiefly of antiquarian interest. It may be still, however, taken to " lead " as to the law relating to contracts entered into abroad and sought to be enforced in England. Such contracts are primarily to be expounded according to the law of the place where made, — the lex loci contractus, as it is called. For example, if by the French law the property in a bill of Trimbey v. exchange payable to order is not passed without a special indorse- ™9 nter > x ment, the holder of a bill drawn in France and there indorsed to him jf. C., and in blank cannot sue on it here, altho' in the case of an English Bradlaugh bill a blank indorsement would have sufficed. But this rule admits Z' -J „ p' of an exception in the case where the parties intended the contract to p. ; and see be executed in a country other than that in which it was entered into. Home v. Contracts which are illegal according to English law, tho' legal accord- o q'' jf t\ ing to the law of the country where made, cannot be enforced in Eng- land. " When a court of justice in one country is called on to enforce s an f 0S v . a contract entered into in another country, the question is not only Illidye, 6 whether or not the contract is valid according to the law of the "• •> -^ "• country in which it is entered into, but whether or not it is consis- tent with the law and policy of the country in which it is to be enforced ; and if it is opposed to those laws and that policy, the court cannot be called on to enforce it." And altho' a contract is to be Per Tur- expounded according to the law of the place where made, proceedings ner > k. J., to enforce it are governed by the law of the place where the action is jfoL 35 brought, — the lex loci fori. For example, if an agreement be one of L. J. Ch. 254 LEADING CASES MADE EASY. Leroux v. that class which the 4th section of the Statute of Frauds requires to Brown, be in writing, a verbal agreement made in a foreign country where it would have been perfectly valid cannot be enforced in England. Similarly, an action on a contract entered into in Scotland, and which might by the laws of that country have been enforced within forty years, has been held to be barred by the English Statute of British Limitations. r jL u J!l By the law of Jersey, a husband is still liable for the ante-nuptial mond, debts of his wife. In England, if the marriage has taken place since 10 B. & C. July 30, 1874, he is liable only to the extent of certain specified 37 & 38 assets. A Jersey girl contracted debts in Jersey, and then came to Vict, c 50, England, and, after July 30, 1874, got married. The lady's Jersey creditor brought an action against the husband, urging that the lex loci contractus ought to prevail, and that the husband was liable. But it was held that the husband was not liable, as, the marriage DeGreuchy having taken place in England, the Jersey law did not apply. 4 p"\) "^ ma y ^ e observed that when a contract is entered into by letter between two persons living in different countries the place where the contract is considered to liave been made, so as to determine the lex loci contractus, is the place where the final assent has been given by the one party to an offer made by the other. As to torts committed abroad, an action lies in England, provided that the tort is actionable both by our law and by the law of the L. R. 6 Q. country where the tort was committed. The case of Phillips v. Eyre ■B- shows how necessary it is that both these conditions should be fulfilled. It was an action for assault and false imprisonment against the ex-governor of Jamaica, the trespass complained of having been committed during a rebellion in that island. The defendant success- fully relied on an Act of Indemnity which the Jamaica Legislature had passed, and said that legislation, tho' ex post facto, cured the wrongfulness of his acts, and prevented the plaintiff from recovering. L. E. 2 P. The case of The Halley is another authority on the subject. By the negligence of a pilot, compulsorilj' taken on board, The Halley, a British steamer, in Belgian waters, ran down a Norwegian vessel, The Napoleon. By Belgian law the Britisher was liable, but by our law the fact that the pilot was on board, and that the collision was due to his negligence, exempted her. It was held that, under those cir- cumstances, no action lay against her in England. " It is," the Court said, " in their lordships' opinion, alike contrary to principle and to authority, to hold that an English court of justice will enforce a foreign municipal law, and will give a remedy in the shape of damages, in respect of an Act which, according to its own principles, imposes no liability on the person from whom the damages are claimed." But, on the other hand, it is no defence to an action for a tort 0. LEADING CASES MADE EASY. committed in a foreign country that by the laws of that country no action lies till the defendant lias been dealt with criminally, for that is a mere matter of procedure. '^ cott v - The courts do not take judicial notice of the laws of foreign states, i jj & C Such laws are proved by the oral evidence of persons having a practical acquaintance with them, and whether any particular person tendered as a witness is duly competent is a question for the court. In a case in which the question was whether a London hotel-keeper, but native of Belgium, and who had been a merchant in Brussels, was competent to prove the law of Belgium as to the presentment of promissory notes, Talfourd, J., said : " Foreign law is matter of fact : any person who can satisfy the court that he has the means of knowing it is an admissible witness to prove it. One who has been long in the habit of attending as a special juryman in the city of Loudon would no doubt be well qualified to speak as to the law of England on many subjects connected with commerce. As to the admissibility of this person's evidence, I think there can be no doubt, whatever may have been the weight it was entitled to." Vander The judgment of a foreign court, if final and conclusive where nn^n ' made, and if not plainly contrary to natural justice, is final and con- 8 C. B. elusive here. Rirardo v. Garcias, 12 CI. & Fin. Husband and Wife. WENMAN u. ASH. [147.] [13 C. B.] Mr. Ash, an old gentleman of eighty-two, and, according to his own account, " a bit of a prophet," — tho' on the present occasion he scarcely seems to have made much use of the gift, — wrote a letter to Mrs. Wenman, a lady with whom he had lately been lodging, and said that, tho' he enter- tained the profoundest respect for herself, her husband was an unmitigated scoundrel, and had stolen some receipts out of his portmanteau. Like the faithful wife she was, Mrs. .Wenman showed the letter to her husband, and her husband's wrath was kindled to such a terrible extent that he consulted his solicitor, and brought an action for libel. 256 LEADING CASES MADE EASY. "Admitted," said the defence, " that these words are libellous, where is the publication to a third person V " Why, my wife is the third person of course/' "Well but, you know, husband and wife are one flesh ; when Mr. Ash wrote that letter to your wife it was pre- cisely the same thing as if he had written it to you." And it was learnedly and at great length argued whether there was a sufficient publication. It was decided that there was, for, tho' it is true that for some purposes husband and wife are one person, yet for others they are not. The old common law doctrine was that husband and wife (baron and feme) were one person, and that one person the husband : and the consequences of that doctrine are to this day exceedingly important. A married woman, for instance, prima facie cannot contract or hold property ; she cannot sue alone ; she is not re- sponsible for a felony committed in her husband's presence ; she cannot steal his goods ; she cannot take a gift from him ; and (except when complaining of violence from him and by virtue of one or two specials Acts) she cannot be a witness in a criminal trial for or against her husband. Not long ago a lady, whose marriage had been terminated by divorce, brought an action against the gentleman ■who had been her husband for an assault committed during the coverture. But it was held, on the ground that husband and wife Phillips v. are one person, that the action would not lie. " It is a well-estab- l "o R T) ^ s ^ e ^ maxim of the law," said Lush, J., "that husband and wife are one person. For many purposes, no doubt, this is a mere figure of speech, but for other purposes it must be understood in its literal sense. ... It remains to consider, what is the effect of divorce on this disability 1 Now, I cannot for a moment think that a divorce makes the marriage void ab initio ; it merely terminates the relation of husband and wife from the time of the divorce, and their future rights with regard to property are adjusted according to the decision of the Court in each case." Wenman v. Ash, however, is a useful authority to show that there is some limit to the common law doctrine. In that case, Maule, J., characterised the position that husband and wife are one flesh, not two fleshes, as "a strong figurative expression." Moreover, the ladies have been gradually and successfully asserting for themselves a separate identity. Equity some time ago permitted a married woman to hold separate estate 33 & 34 intact from her husband and her husband's creditors, and in 1870 Vict. c. 93. an important Act, called the Married Woman's Property Act, was LEADING CASES MADE EASY. 257 passed, which goes a long way in the same direction. But it has lately been decided that, even when an action is brought against a married woman to charge wages and earnings which by virtue of that Act are her separate property, her husband must be joined as a defendant. Indeed, the only exceptions to the rule that a married Hancocks woman cannot be sued alone are the following : — // / 1. When the husband has gone to prison and is civilly dead. 3 c p jy 2. "When he has not been heard of for seven years and is presumed to be physically dead. 3. When there has been a judicial separation. 4. When the wife has obtained a " protection order." 5. When the husband is an alien enemy ; and 6. When under Order XVI., rule 8, of the Judicature Act "the court or a judge " permit it. So that the saying of the worthy tinker of Elstow is not so far wide of the mark even now, " Women, whenever they would perk it and lord it over their husbands, ought to remember that both by creation and transgression they are made to be in subjection to them." An interesting and recent case on section 11 of the Act of 1870 is Lovell v. Newton, where a drunken husband's creditors had seized 4 C. P. D. certain stock in trade which an industrious wife said was hers. " Looking at the substance and intention of the Act," said Denman, J., " which was to protect the fruits of the talent and industry of married women from being made liable for the debts of their husbands, and having a decision of the Court of Appeal that stock in trade is included within the term 'earnings,' I think we are fully justified, acting as a jury, in holding that Mrs. Newton was carrying on this business separately from her husband, so as to protect the goods in question from being seized for his debt. I wish it to be understood that the only lair we decide is that the mere fact of the husband living in the house at the time the business is so being carried on does not deprive the wife of the protection afforded her by the Act." This is, perhaps, the most convenient place to mention the position of the husband as to the contracts his wife entered into before she married him. The effect of marriage on the wife's personalty vn possession is to make it absolutely the husband's. But this is not so as to her choses in action. In order that they may become the husband's, he must do some act which the law calls a reduction into possession : for example, if he were to bring an action on the contract in the joint names of his wife and himself, and got judgment, that would be sufficient. The consequence of the husband's not reducing the choses in action into possession is that, if his wife dies he will be entitled to them, not as husband, but merely as her administrator, and, therefore, will take them, subject to the payment of her debts S 258 LEADING CASES MADE EASY. contracted before marriage ; while, if he dies himself, they survive to her instead of going to his representatives. As to the husband's liability for the debts of his wife contracted before marriage, reference must be made to several statutes. The first question is, when did the marriage take place 1 1. If the interesting event came off before August 9, 1870, the unfortunate husband is liable for all. 2. If it took place between August 9, 1870, and July 30, 1874, the 33 & 34 husband is not liable for a penny. Vict. c. 93, But the wife can be sued if she has any separate estate. 3 If the marriage has taken place since July 30, 1874, the husband 37 & 38 . Vict c 50 * s li a kle to the extent of the assets his wife brings him. In plain English, if I marry a woman with money I must pay off as many of her debts as that money runs to, altho' it may not be separate estate. [148.] Presumption of Death after Seven Years Absence. NEPEAN v. DOE. [2 M. & W.] The effect of this case is that when a person goes abroad and is not heard of for seven years the law presumes him to be dead, unless the circumstances of the case are such as to account for his not being heard of without assuming his death, but does not presume that he died at any par- ticular period during those seven years. Distressing cases, leading to litigation, constantly arise where whole families have perished by the same calamity. One well-known case on the subject is Wing v. Angrrave, where a husband, wife, and children, were all washed away by the earae wave. In the Roman law, if a father and son died under such circum- stances, it was presumed that the son died first, if he was under the nge of puberty ; but, if he was over that age, that the father died first, the principle being that the father would probably be the stronger of the two in the former case, and the son in the latter. We have no presumptions of this kind, and when a similar case arises LEADING CASES MADE EASY. 259 we call on a claimant, by survivorship, to give affirmative proof of 8 H. L. C. what he asserts. The student who cares to pursue this subject further should refer to Wing v. Angrave (already mentioned), In re Phene's Trusts, L. R. 5 Ch. Hickman v. Upsall, and Prudential Assurance Co. v. Edmunds. App. The last-mentioned was rather a curious case. A man named ^ ^°" -^iv. Nutt, about fifteen years ago, carried on business at Cheltenham as A PP - ^ a> a tailor. He was a drunken good-for-nothing fellow ; but the Prudential Assurance Company in 1863 insured his life,and Edmunds, the plaintiff, became assignee of the policy. In May, 1867, Nutt left Cheltenham, being at the time afflicted with " inguinal hernia," and none of his Cheltenham friends ever afterwards had any communica- tion from him whatever. In 1874 — more than seven years after Nutt had left his home — Edmunds went to law with the company to try and get them to pay the policy money ; and the question was whether Nutt was dead or alive. For the plaintiff, Nutt's sister and his brother-in-law gave evidence that they had not heard of him for seven years. But on cross-examination they admitted that a niece of Nutt's had said that when she was at Melbourne in December, 1872, she saw a man whom she believed to be her uncle ; but he was lost in the passing crowd before she could get to speak to him. They however, believed her to be mistaken, and the jury expressed a similar opinion. This being so, the plaintiff's counsel at the trial asked the Judge (Kelly. C.B.) to tell the jury that Nutt, having been absent for above seven years without being heard of (as was the fact if the niece was mistaken), must be presumed to be dead. This the Judge declined to do, and charged the jury strongly in favour of the defendants, on the ground that all the members of the family had "heard" what the niece had stated. The Court of Appeal considered this to be a misdirection, and, as the House of Lords could not agree on the subject, their decision stood affirmed, Estoppel. DUCHESS OF KINGSTONS CASE. [149.] [20 How. Sta. Tri. & S. L. C] One of the most beautiful women of the last century was Sarah Chudleigh. Without going minutely into her strange s 2 260 LEADING CASES MADE EASY. eventful history, it may be said that in a weak moment she fell in love with a Captain Harvey, and married him. Married in haste she repented at leisure. Being, however, of an ingenious turn of mind, she determined to destroy the evidence of the marriage, and with that object went down to the church where the ceremony had been performed, and tore the leaf out of the register. She had scarcely accomplished this feat when the news reached her that her husband had succeeded to a peerage, and was dying. To reap the benefit of such good fortune, she went straight back to the church, and replaced the purloined leaf. Her husband, however, was not obliging enough to die, and, as the lady was very anxious to marry the Duke of Kingston and become a duchess, she procured an irregular divorce from him and married the duke. After a few years the duke died, leaving his widow a very large fortune. This the duke's heirs were not disposed to allow her to enjoy in peace. They prosecuted her for bigamy, that is, of course, for marrying the Duke of Kingston when she had not been legally divorced from her first husband. The defence to the charge was that the divorce was a legal one, and left her free to marry the Duke of Kingston or any other man or duke. The judges were required to answer the following questions : — (1). If a spiritual court decides that a marriage is null and void, is its decision so conclusive on the subject that the marriage cannot be proved against one of the parties in an indictment for bigamy ? (2). Supposing the spiritual court's decision is final, may counsel for the prosecution destroy its effect by showing that it was brought about by fraud and collusion ? The first question was answered in the negative, so that it did not much matter to the duchess what the answer to the second was. That question, however, the judges answered in the affirmative, thus doubly settling her grace. LEADING CASES MADE EASY. 261 The duchess, however, tho' convicted, was leniently dealt with, and went and lived and died abroad. YOUNG o. GROTE. [150] [4 Bing.] Mr. Young was a liberal if rash husband. When he went away from home he used to leave blank cheques signed for Mrs. Young to fill up according to her necessities. But on one occasion Mrs. Young did it so clumsily that an enterprising bearer was able to alter " 50 " to " 350," and " fifty" to "three hundred and fifty," and get the cheque cashed in its improved form. On these facts, Mr. Young was held to be estopped by his negligence from throwing the loss on his bankers. Moral 1. Always keep your cheques well to the left side. Moral 2. Never let Mrs. B. have anything to do with your cheque-book. There is an air of immorality about the orthodox definition of an estoppel — " An estoppel is where a man is concluded by his own act or acceptance to say the truth ;" and, perhaps, among the nice sharp quillets of our early law, truth rather was at a discount. However, now as then, interest reipublicce (if not the lawyers) ut sit finis litium ; and estoppel operates as a kind of extinguisher on actions and arguments. Estoppels (which my Lord Coke considers "a curious and excellent sort of learning," — we only hope the student will agree with him) are of three kinds : — 1. By matter of record. 2. By deed. 3. By conduct (otherwise known as in pais). 1. Generally, when the parties are the same, and the point litigated the same, a former judgment recorded is conclusive. Why should the public time be wasted by the courts having to decide the same thing over and over again ? One has heard of the infallibility of judge's notes (Bardell v. Pickwick, 1 Dick.), but a record, our text- books tell us, "imports such absolute verity that — " nothing is too 262 LEADING CASES MADE EASY. Reed v. JacTcson 1 East, Outram v. More- wood, 3 East. Legqatt v. G.N.R.Co 1 Q. B. D. L. E. 1 C P. 6 Ad. & 2 Exch. bad for the audacious person who ventures to call it in question. Thus, if a record in a former action is tendered in evidence, the other side cannot be permitted to show that the officer of the court made a mistake and entered the verdict on the wrong plea. So, too, if it > is found that a piece of land belongs to Jones and not to Brown, and final judgment is entered for Jones, Brown cannot in a subsequent action against him for trespass by digging up coals there, plead that the land is his and not Jones's. But if a plaintiff sues in a different right in the second action from what he did in the first {e.g., if the administratrix of a person who has been killed by the negligence of a railway company sues first under Lord Campbell's Act, and then, in another action, for damage to the personal estate) there is no estoppel. » It is to be observed that in an estoppel by record not only the parties themselves, but their privies {i.e., those who claim under them) are estopped. But res inter alios acta alteri nocere non potest, for that "alter" had no opportunity of cross-examining. A good illustration of estoppel by record is afforded by the case of . Wildes v. Russell. Wildes had been a clerk of the peace, and now sued his successor for certain fees of the office. But it appeared that Wildes had been dismissed from his office by the justices in Quarter Sessions assembled for contumaciously refusing to record an order. He wished to show that the order was an invalid one ; but it was decided that he could not be allowed to do so. 2. To execute a deed is, like executing a murderer, a very solemn thing, and therefore whatever assertion a man has made in his deed he must stand by. If you execute a bond in the name of Obadiah you are estopped from pleading that your name is Augustus. So, tho' a person who has given an ordinary receipt may show that he has never really received the money, a person who has given a receipt under seal cannot. And the recitals in a deed are just as binding as any other part. " I do not see," said a judge once, "that a statement such as this is the less positive because it is introduced by a ' Whereas.' " Two qualifications of the doctrine of estoppel by deed must be remembered : — (1). Altho' a person acknowledges in his deed that he has received the consideration money for the service he undertakes to perform, he may nevertheless show that as a matter of fact he has not received it. (2). A person who is sued on his deed may show that it is founded on fraud or illegality, and, if he proves it, the document becomes worthless, p. 90. The great case on this subject is Collins v. Blan- E. tern, which might be glanced at, 3. The doctrine of estoppel by conduct, as extracted from Pickard LEADING CASES MADE EASY. 2(j3 v. Bears and Freeman v. Cooke, may, without attempting scientific precision, be thus stated : — Where one person by his words or conduct represents a certain SeeCWv. state of things to exist, and thereby induces — no matter whether he L.dkN. W. intended it or not— another to alter his position, that other is not to t/ R l o P be prejudiced by the perfidy or fickleness of the first person. p. Loftus v. Maw is rather an extreme illustration. An old gentle- 32 L. J., man induced a niece to come and live with him and nurse his old ^h- But age by promising to remember her in his will. But the old deceiver _ j^ onev did not remember her. It was held, however, in au action against 15 Beav. the executors that he was estopped from omitting to make some provision for her, as she had altered her position in consequence of his representations. But there are other cases of estoppel by conduct besides those of the Pickard v. Sears and Freeman v. Cooke kind. A tenant, for instance, is estopped from disputing his landlord's title, and the acceptor of a bill of exchange from denying the signature of the drawer or his capacity to draw ; and a young gentleman who takes rent after he comes of age is estopped trom denying that the person he takes it from is his tenant. The case of Young v. Grrote may be usefully remembered as an illustration of estoppel by negligence — that is, of a kind of estoppel by conduct, viz., negligent conduct. On this subject there has recently been a decision of some importance. A person named Holmes, becoming impecunious, asked the defendant for his acceptance to an accommodation bill. Willing to oblige, the defendant gave him his blank acceptance on a stamped paper, and authorised him to fill in his name as drawer. Holmes, however, finding that after all he did not require accommodation, returned the paper to the defendant in the same state in which he had received it from him. The defendant put it into a drawer which he did not lock, and to which his clerk, laundress, &c, had access. From this drawer it was stolen, and finally, after having had a drawer's name put on to it, came into the hands of the plaintiff as indorsee for value. It was held in an action that the defendant was not liable on this bill. Voting v. Grote was Baxendale distinguished by Bramwell, L.J., from this case, on the ground that r - Bennett, in the former case the defendant had voluntarily parted with the instrument, while in the latter it had been got from him by the commission of a crime. In a rather earlier case of some importance, it had been held that " negligence in the custody of a draft, or in its transmission by post, will not disentitle the owner of it to recover the draft or its proceeds from one who has wrongfully obtained possession of it," and that " negligence to amount to an estoppel must be in the transaction itself, and be the proximate cause of leading the third party into 264 LEADING CASES MADE EASY. mistake, and also must be the neglect of some duty which is owiug Arnold v. to such third party, or to the general public." Cheque rp n j aw j g ga jj to ^ e «f avo urable to the utility of the doctrine of Bank, 1 C. ■ ., . . • P. D. • and estoppel, hostde to its technicality. On the one hand, persons must see Swan not be allowed to mislead others with impunity ; on the other, every n ■J'l l little casual remark must not be tortured into an attempt to mislead. Austra- In one of the cases just referred to, Bramwell, L.J., remarked, lasian Co., « Estoppels are odious, and the doctrine should never be applied , ' without a necessity for it." Baxendale v. Bennett, 3 Q. B. D. 205 APPENDICES. (") STATUTES IN APPENDIX A. 29 Car. II. c. 3 (Statute of Frauds). 29 Car. II. c. 7 (Lord's Day Act). 14 Geo. III. c. 48 (Insurance on Lives). 9 Geo. IV. c. 14 (Lord Tenterden's Act). 11 Geo. IV. & 1 Will. IV. c. 68 (Carriers Act). 17 & 18 Vict. c. 31 (Railway and Canal Traffic Act). 19 & 20 Vict. c. 97 (Mercantile Law Amendment Act). 26 & 27 Vict. c. 41 (Innkeepers Act). 28 & 29 Vict. c. 86 (Partnership Law Amendment Act). 33 & 34 Vict. c. 93 (Married Women's Property Act, 1870). 34 & 35 Vict. c. 79 (Lodgers' Goods Protection Act). 37 & 38 Vict. c. 50 (Married Women's Property Act Amend- ment Act). 37 & 38 Vict. c. 62 (Infants Eelief Act, 1874). 41 & 42 Vict. c. 31 (Bills of Sale Act, 1878). APPENDIX A. PRINCIPAL SECTIONS OF PRINCIPAL STATUTES REFERRED TO IN THE BODY OF THE WORK. 29 Car. II. c. 3 (1677). An Act for Prevention of Frauds and Perjuries. Statute of Frauds. 1. All leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to, or out of any messuages, (a) The student is recommended to write the names of such of the hundred and fifty cases as bear on the statutes, maxims, &c, iu the Appendices opposite to the passages to which they refer. The author would have done this himself, only he thinks he would thereby have deprived the student of a little useful and innocent amusement. 266 APPENDIX A. manors, lands, tenements, or hereditaments, made or created by- livery and seizin only, or by parol and not put in writing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorised by writing, shall have the force and effect of leases or estates at will only. 2. Except leases not exceeding three years from the making thereof, whereupon the rent reserved shall amount to two-thirds at least of the full improved value of the thing demised. 4. No action shall be brought whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default, or mis- carriages of another person ; or to charge any person upon any agreement made upon consideration of marriage ; or upon any contract or sale of lands, tenements, or hereditaments, or any in- terest in or concerning them ; or upon any agreement that is not to be performed within the space of one year from the making thereof ; unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised. 17. No contract for the sale of any goods, wares, and mer- chandises, for the price of ten pounds sterling or upwards, shall be allowed to 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 of payment, or some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contracts, or their agents thereunto lawfully authorised. 29 Car. II. c. 7 (1677). An Ad for the Better Observation of the Lord's Day, commonly called Sunday. For the better observation and keeping holy the Lord's Day, commonly called Sunday, be it enacted . . . that all the laws enacted and in force concerning the observation of the Lord's Day, and repairing to the church thereon, be carefully APPENDIX A. 2G7 put in execution ; and that all and every person and persons whatsoever shall on every Lord's Day apply themselves to the observation of the same, by exercising themselves thereon in the duties of piety and true religion, publicly and privately ; and that no tradesman, artificer, 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 necessity and charity only excepted); and that every person, being of the age of fourteen years or upwards, offending in the premises shall for every such offence forfeit the sum of five shillings ; and that no person or persons whatsoever shall publicly cry, shew forth, or expose to sale any wares, merchandises, fruit, herbs, goods, or chattels whatsoever upon the Lord's Day, or any part thereof, upon pain that every person so offending shall forfeit the same goods so cried, or shewed forth, or exposed to sale. 14 Geo. III. c. 48 (1774). An Act for regulating Insurances upon Lives, and for prohibit- ing all such Insurances except in cases where the Persons Insuring shall have an Interest in the Life or Death of the Persons Insured. 1. "Whereas it hath been found by experience that the making insurances on lives or other events wherein the assured shall have no interest hath introduced a mischievous kind of gaming : . . . be it enacted . . . that, from and after the passing of this Act, no insurance shall be made by any person or persons, bodies politic or corporate, on the life or lives of any person or persons, or on any other event or events whatsoever, wherein the person or persons for whose use, benefit, or on whose account such policy or policies shall be made, shall have no interest, or by way of gaming or wagering ; and that every assurance made contrary to the true intent and meaning hereof shall be null and void to all intents and purposes whatsoever. 2. And be it further enacted that it shall not be lawful to make any policy or policies on the life or lives of any person or persons, or other event or events, without inserting in such 268 APPENDIX A. policy or policies the person or persons' name or names interested therein, or for whose use, benefit, or on whose account such policy is so made or underwrote. 3. And be it further enacted that in all cases where the insured hath interest in such life or lives, event or events, no greater sum shall be recovered or received from the insurer or insurers than the amount or value of the interest of the insured in such life or lives, or other event or events. 9 Geo. IV. c. 14 (1828). Lord An Act for rendering a Written Memorandum necessary to the den^Act Validity of Certain Promises and Engagements. 6. No action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade, or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or (a) Sic. goods upon (a), unless such representation or assurance be made in writing, signed by the party to be charged therewith. 7. Whereas it has been held that the said recited enactments [viz., the 17th section of the Statute of Frauds and a similar Irish statute] do not extend to certain executory contracts for the sale of goods, which nevertheless are within the mischief thereby intended to be remedied, and it is expedient to extend the said enactments to such executory contracts : Be it enacted, that the said enactments shall extend to all contracts for the sale of goods of the value of ten pounds sterling and upwards, notwith- standing the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery. APPENDIX A. 2G9 11 Geo. IV. & 1 Will. IV. c. 68 (1830). An Ad for the more effectual Protection of M'. 12. Seton r. Slade. — Equity will decree specific performance against vendee, tlio' vendor has not made title within time agreed. 13. Lester v. Foxcroft. — Acts of part performance entitle plaintiff to specific performance of parol agreement for lease, in spite of Statute of Frauds. 14. Woollam v. Hearn. — Plaintiff cannot go into parol evi- dence to get specific performance of contract with varia- tion; but defendant resisting specific performance may so show that by fraud written agreement does not express real terms. 15. Penn v. Baltimore. — Equity acts in personam, and, if parties are here, will decree specific performance of con- tract relating to property abroad. 16. Pawlett v. Pawlett. — When child intended to be benefited dies, portion will not be raised ; legacy will. Cases laying down rules to tell whether devise or bequest is 17. Boraston's case, vested or contingent, e.y., word 18. Stapleton v. Cheales. \ " when " in will standing alone 19. Hanson v. Graham. is conditional, but may be con- trolled by context, &c, so as V to postpone payment only. 20. Hooley v. Hatton. — If testator gives a person a legacy of £500 by will, and afterwards of £1000 by codicil, person takes both. 21. Ashburner v. Macguire. — Specific legacy is liable to ademption by act of testator in his lifetime, but does not abate. 22. Elliott v. Davenport. — If legatee dies in testator's life- time, legacy lapses, altho' given to the legatee, his executors, administrators and, assign*. 23. Viner v. Francis.— If testator gives £2000 to the children of his deceased sister, he means those living at his death. 24. Leventhorpe v. Ashbie.— Bequest of personalty in such terms as would have given estate tail in devise of realty gives absolute interest. 25. Corbyn v. French.— Legacy of £500 to trustees of chapel to discharge mortgage on chapel, void under Mortmain Act. APPENDIX B. 28 J 26. Scott p. Tyler. — Conditions annexed to legacies, A , , + •■, • ,. i derided that an entail might be I barred by a common recovery. 58. Attorney-General v. Sands. — Leading case on Escheat mid Forft iture. Eight to escheat is founded on " the want of a tenant to perform services." 59. Shelley's case. — " Wherever a man by any gift or con- veyance takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his lieirs in fee or in tail, the word ' heirs' is a word of limitation, and not of purchase." (In plain English, the word is not to be taken as giving the heirs anything, but simply as marking out the quantity of estate which the donee himself is to have.) 60. Tyrringham's case. — Common appendant differs from common appurtenant in being connected with arable lands and limited to ploughing or manuring beasts ; also, being of common right, it need not be prescribed for; and is apportionahle. 61. Corbet's case. — Leading case on common of shack, which is "the right of persons occupying lands lying together in the same common field to turn out their cattle after harvest to feed promiscuously in that field." 62. Sury v. Pigot. — Right of way (unless way of necessity) is extinguished by unity of possession ; aliter, of a water- course. 63. Bowles' case. ) Leading cases as to amount of waste that 64. Garth v. Cotton. S can be committed with impunity. 288 APPENDIX B. 65. Rouse's case. — Person who comes into estate by right, but remains in after his right has expired, is tenant at suffer- ance and dominus pro tempore. 66. Richardson v. Langridge. — Tenancy at will created by- agreement to let so long as both parties please, and rent being reserved accruing de die in diem, and not referable to a year, or any aliquot part of a year. 67. Clun's case. — Leading case on apportionment of rent. 68. Morley v. Bird. — Notwithstanding leaning of court in favour of tenancy in common, an interest given to several without words "equally among," or anything that court can lay hold of, is joint. • _. , „., i Persons making purchase for purpose 69. Lake v. Gibson. . ... ,*,. H -u- 70. Lake * Craddock. ) ° f J ° mt undertakm g or Partnership v are tenants m common in equity. 71. Wake v. Conyers. — Court will not exercise jurisdiction in settling boundaries unless soil itself in dispute, or other good reason. 72. Le Neve v. Le Neve. — Unregistered settlement of lands in register county preferred to subsequent registered one, person taking lands under latter settlement having notice of former. 73. Agra Bank v. Barry. — Absence of title-deeds will not constitute constructive notice of prior interest, if their absence is satisfactorily accounted for. 74. Basset v. Nosworthy. — On the principle that "where there is equal equity, the law shall prevail," court will not interfere against bond fide purchaser for valuable consideration without notice, if in possession. 75. Agar v. Fairfax. — Leading case on Partition, which is " the remedy for the inconveniences of undivided owner- ship." 76. Mackreth v. Symons. — Vendor's lien prevails against everybody except bona fide purchasers ; the taking another security is not conclusive evidence of relinquish- ment of lien. 77. Fletcher v. Ashburner. — Money directed to be used for buying land, and land directed to be turned into money, are to be considered as that species of property into which they are directed to be converted. APPENDIX /.'. 289 78. Ackroyd v. Smithson. — Where purposes of conversion fail, property goes in its original state. 79. Marsh v. Lee. — Third mortgagee, having advanced money without notice of second mortgage, and having after- wards bought in first mortgage, allowed to tack and squeeze out second mortgagee. 80. Brace r. Marlborough. ---Judgment creditor buying in first mortgage not allowed to tack, for lie did not lend on immediate credit of land. 81. Russel v. Russel. — Mere deposit of title-deeds, good equitable mortgage. 82. Casborne r. Scarfe. — Equity of redemption an estate in the land, which is considered only security for money lent. 83. Howard >•. Harris. — No agreement in mortgage can make it irredeemable, either after death of mortgagor or upon failure of issue male of his body. 84. Thornbrough v. Baker. — Executor, not heir, of mortgagee in fee entitled to money secured by mortgage. 85. Forbes v. Moffatt. — Leading case on merger and mort- gages. 86. Glenorchy v. Bosville. — Executory trusts will be moulded, as far as ascertainable, according to settlor's intention. 87. Tyrrell's case. — There cannot be a use upon a use. 88. Ellison v. Ellison. — Tho' assistance of court cannot be had without consideration to constitute party cestui que trust, yet, if legal conveyance actually made, equitable interest will be enforced. 89. Elliot r. Merryman. — Leading case as to obligation of purchaser from trustees to see to application of purchase- money. 90. Dyer v. Dyer. — Purchase by father in name of son, advancement to son, not resulting trust. 91. Keech v. Sandford. — Trustee renewing lease for self, without fraud, and lessor having refused renewal to cestui que trust, is nevertheless trustee of lease for latter. 92. Fox v. Mackreth. — Trustee cannot generally purchase trust estate from cestui que trust. 93. Robinson v. Pett. — Court never allows trustee anything for his trouble. 290 APPENDIX B. 94. 95. 96. Townley v. Sherborne. Brice v. Stokes. Trustee not generally respon- sible for acts or defaults of co-trustee : distinction between trustees and executors as to effect of joining in receipts. Row v. Dawson. — Chose in action assignable in equity, and no particular form of words necessary. 97. Ryall v. Bowles. — Assignment of debts without notice to debtor invalid against assignees in bankruptcy. 98. Bering v. Winchelsea. — Doctrine of contribution extends to sureties bound by different instruments. 99. Rees to. Berrington. — Surety released by creditor giving time to debtor. Equity looks with suspicion on bargains made with ex- 101. Aylesford v. pectant heirs. 102. Fox v. Chester. — Sale of next presentation whilst in- cumbent dying, not void for simony, if no intention to present particular clerk. 103. Huguenin n. Baseley. — Voluntary settlement in favour of person in confidential relation set aside as obtained by undue influence. 104. Peachy v. Somerset. — Copyhold tenant who has been leasing wrongfully and cutting down trees not entitled to relief from forfeiture. Sloman v. Walter. — Equity will relieve against penalty merely intended to secure enjoyment of collateral object. ' Equity gives relief for mistake of law where mistake is one of title arising from ignorance of elementary principle of law; but generally only for mistake of fact. ' Agreement entered into for com- promise of doubtful right,hind- { ing; but there must be no keeping back material infor- mation. Oxford's case. — Leading ease as to principles on which equity will interfere to restrain proceedings at law. 105. 106 107. Landsdowne v. Landsdowne. Beanchamp v. Winn. 108. 109. 110. Stapilton v. Stapilton Gordon v. Gordon. APPENDIX C. 291 APPENDIX 0. PRINCIPAL LEGAL MAXIMS. (1.) Acta exteriora indicant intcriora secreta. (Overt acts declare a man's intentions and motives.) (2.) Actio personalis moritur cum persona. (A personal right of action ceases at death.) (3.) Actus Dei nemini facit injuriam. (The act of God does injury to no man.) (4.) Benigno faciendae sunt interpretationes propter simplici- tatem laicorum, ut res magis valeat quam pereat. (Instruments ought to be construed leniently, with allow- ance made for the ignorance of people who are not lawyers, so that the transaction may he supported, and not rendered nugatory.) (5.) Caveat emptor. (The buyer must look after himself.) (6.) Cessante ratione, cessat lex. (When the reason for a law ceases to exist, so also does the law itself.) (7.) Contemporanea expositio est optima et fortissima in lege. (Tlie best way of getting at the moaning of an instrument is to ascertain when and under what circumstances if teas made.) (8.) Cuilibet in sua arte perito credendum est. (Every man is an expert in the 'particular branch of business he is familiar witli.) (9.) Delegatus non potest delegare. (.4 person having merely delegated authority ran not him- self delegate that authority to another) U2 25)2 APPENDIX C. (10.) De minimis non curat lex. (The law does not trouble itself about trifles.) (11.) Domus sua est cuique tutissimum refugium. (A man's house is his safest retreat.) (12.) Ex nudo pacto non oritur actio. (In order to ground an action, an agreement must have a consideration.) (13.) Expeclit reipublicae ne quis sua re male utatur. (The good of the State requires a man not to injure his own property^) (14.) Expressum facit cessare taciturn. (When all the terms are expressed, nothing can be implied.) (15.) Ignorantia facti excusat, ignorantia juris non excusat. (A man may be pardoned for mistaking facts, but not for mistaking the law.) (16.) In contractis tacite insunt quae sunt moris et consue- tudinis. (Persons are presumed to contract with reference to habits and customs.) (17.) In jure non remota sed proxima causa spectatur. (It is not the remote but the immediate cause that the laic looks at.) (18.) Interest reipublicse ut sit finis litium. (It is the interest of the State tJmt litigation should cease.) (19.) Lex non cogit ad impossibilia. (The laic never urges to impossibilities.) (20.) Lex semper intendit quod convenit rationi. (The law must be taken to intend what is reasonable.) (21.) Lex spectat naturae ordinem. (The law takes into account the natural successioti of things.) (22.) Modus et conventio vincunt legem. (Persons may contract themselves out of their legal liabilities.) (23.) Non dat qui non habet. (A man cannot give what he has not got.) (24,) Non omnium quae a majoribus constituta sunt ratio reddi potest. (.4 reason cannot be given for everything that has been established by our ancestors.) APPENDIX C. 293 (25.) Omnia praesumuntur contra spoliatorem. {Every presumption is made against one who spoil*.) (26.) Omnia pnesumuntur rite et sollenniter esse acta. (It is presumed that all the usual formalities have been complied with.) (27.) Omnia ratihibitio retrotrahitur et mandato priori tequi- paratur. (.4 ratification is taken hark ami made e/jtiirideid to a previous command. ) (28.) Optima est lex quae minimum relinquit arbitrio judicis, optimus judex qui minimum sibi. (Ttie best system of law is that which leaves the least to the discretion of (he judge ; the best judge is he who leaves the least to his own discretion.) (29.) Potior est conditio possidentis. (There is a great advantage in being in possession.) (30.) Qui facit per alium, facit per se. (He who does a thing by another does it himself.) (31.) Qui hseret in litera hajret in cortice. (He who harps on the mere letter of a written instrument does not get at the pith of the matter.) (32.) Qui prior est tempore, potior est jure. (The law favours the earlier in point of time.) (33.) Qui sentit commodum, sentire debet et onus. (Benefit and burden ought to go hand in hand.) (34.) Quicquid plantatur solo, solo cedit. ( Whatever is planted in the ground becomes part of the ground.) (35.) Quilibet potest renunciare juri pro se introducto. (A man may inure a right established for his own benefit.) (36.) Quod fieri non debet factum valet. (What ought never to hare been done at all, if it has been done, may be valid.) (37.) Quod subintelligitur, non deest. (What is to be understood, is as good if as it were there.) (38.) Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda est. ( When the language of a written instrument is perfectly plain, no construction will be made to contradict the language.) 294 APPENDIX C. (39.) Res inter alios acta alteri nocere non debet. (.4 man ought not to be prejudiced by what has taken place between others.) (40.) Res judicata pro veritate accipitur. {The decision of a court of justice is assumed to be correct.) (41.) Respondeat superior. {A man must ansioer for his dependents.) (42.) Salus populi suprerna lex. {The welfare of the State is the highest law.) (43.) Sic utere tuo ut alienum non lsedas. {Make such a use of your own property as not to injure your neighbour's.) (44.) Solvitur secundum modum solventis. {Payment is to be made as the payer pleases.) (45.) Spondes peritiam artis. {If your position implies skill, you must use it.) (46.) Ubi jus, ibi remedium. {Where there is a right there, there is a remedy.) (47.) Verba chartarum fortius accipiuntur contra profer- entem. {The language of an instrument is to be taken strongly against the person whose language it is.) (48.) Verba generalia restringuuntur ad babditatem rei vel personam. '{General words are to be tied down and interpreted according to their context.) (49.) Vigilantibus non dormientibus jura subveniunt. {To get the law's help a man must not go to sleep over his oion interests.) (50.) Volenti non fit injuria. {The man who is the author of his own hurt has no right to complain.) jA c< I. , L~i /•' APPENDIX D. 296 APPENDIX D. Order XIX. (n) (Under the Judicature Art, 1875.) 1 . The following rules of pleading shall be substituted for those heretofore used in the High Court of Chancery and in the Courts of Common Law, Admiralty, and Probate. '2. Unless the defendant in an action at the time of his appearance shall state that he does not require the delivery of a statement of complaint, the plaintiff shall within such time and in such manner as hereinafter prescribed deliver to the defendant after his appearance a statement of his complaint and of the relief or remedy to which he claims to be entitled. The defend- ant shall within such time and in such manner as hereinafter prescribed deliver to the plaintiff a statement of his defence, set-off, or counterclaim (if any), and the plaintiff shall in like manner deliver a statement of his reply (if any) to such defence, set-off, or counterclaim. Such statements shall be as brief 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. 3. A defendant in an action may set off, or set up, by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and such set-off or counterclaim shall have the same effect as a statement of claim in a cross action, so as to enable the (a) It is thought that the insertion here of this important Order, which contains the principal rules of pleading, will be found particularly useful to students who are reading, or about to read, in the chambers of barristers or special pleaders. 296 APPENDIX D. court to pronounce a final judgment in the same action, both on the original and on the cross claim. But the court or a judge may, on the application of the plaintiff before trial, if in the opinion of the court or judge such set-off or counter- claim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereof. 4. Every pleading shall contain as concisely as maybe a state- ment of the material facts on which the party pleading relies, but not the evidence by which they are to be proved, such statement being divided into paragraphs, numbered consecutively, and each paragraph containing, as nearly as may be, a separate allegation. Dates, sums, and numbers shall be expressed in figures and not in words. Signature of counsel shall not be necessary. Forms similar to those in Appendix (C.) hereto may be used. 5. Every pleading which shall contain less than three folios of seventy-two words each (every figure being counted as one word) may be either printed or written, or partly printed and partly written, and every other pleading, not being a petition or summons, shall be printed. 6. Every pleading or other document required to be delivered to a party, or between parties, shall be delivered in the manner now in use to the solicitor of every party who appears by a solicitor, or to the party if he does not appear by a solicitor, but if no appearance has been entered for any party, then such pleading or document shall be delivered by being filed with the proper officer. 7. Every pleading in an action shall be delivered between parties, and shall be marked on the face with the date of the day on which it is delivered, and with the reference to the letter and number of the action, the division to which and the judge (if any) to whom the action is assigned, the title of the action, the description of the pleading, and the name and place ot business of the solicitor and agent, if any, delivering the same, or the name and address of the party delivering the same if he does not act by a solicitor. 8. Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and may also ask for general relief. And the same rule shall apply to any counterclaim made, or relief claimed by the APPENDIX />. 297 defendant, in his statement of defence. If the plaintiffs claim be for discovery only, the statement of claim shall show it. !». Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct facts, they shall be stated, as far as may be, separately and dis- tinctly. And the same rule shall apply where the defendant ulics upon several distinct grounds of defence, set-off, or counterclaim founded upon separate and distinct facts. 10. Where any defendant seeks to rely upon any facts as supporting a right of set-off or counterclaim, he shall, in his statement of defence, state specifically that he does so by way of set-off or counterclaim. 11. If either party wishes to deny the right of any other party to claim as executor, or as trustee, whether in bankruptcy or otherwise, or in any representative or other alleged capacity, or the alleged constitution of any partnership firm, he shall deny the same specifically. 1 2. In probate actions where the plaintiff disputes the interest of the defendant, he shall allege in his statement of claim that he denies the defendant's interest. 1 3. No plea or defence shall be pleaded in abatement. 14. No new assignment shall hereafter be necessary or used. But everything which has heretofore been alleged by way of new assignment may hereafter be introduced by amendment of the statement of claim. 15. No defendant in an action for the recovery of land who is in possession by himself or his tenant need plead his title, unless his defence depends on an equitable estate or right, or he claims relief upon any equitable ground against any right or title asserted by the plaintiff. But, except in the cases herein- before mentioned, it shall be sufficient to state by way of defence that he is so in possession. And he may nevertheless rely upon any ground of defence which he can prove, except as hereinbefore mentioned. 16. Nothing in these rules contained shall affect the right of any defendant to plead not guilty by statute. And every defence of not guilty by statute shall have the same effect 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. 17. Every allegation of fact in any pleading in an action, not 298 APPENDIX D. being a petition or summons, if not denied specifically or by necessary implication, or stated to be not admitted in the plead- ing of the opposite party, shall be taken to be admitted, except as against an infant, lunatic, or person of unsound mind not so found by inquisition. 18. Each party in any pleading, not being a petition or sum- mons, must allege all such facts not appearing in the previous pleadings as he means to rely on, and must raise all such grounds of defence or reply, as the case may be, as if not raised on the pleadings would be likely to take the opposite party by surprise, or would raise new issues of fact not arising out of the pleadings, as, ' for instance, fraud, or that any claim has been barred by the Statute of Limitations or has been released. 19. Xo 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 party pleading the same. 20. 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 generally the facts alleged in a defence by way of counterclaim, but each party must deal specifically with each allegation of fact of which he does not admit the truth. 21. Subject to the last preceding rule, the plaintiff by his reply may join issue upon the 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 fact in the pleading upon which issue is joined, but it may except any facts which the party may be willing to admit, and shall then operate as a denial of the facts not so admitted. 22. When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And so Avhen a matter of fact is alleged with divers circumstances, it shall not be sufficient to deny it as alleged along with those circumstances, but a fair and substantial answer must be given. APPENDIX D. 299 23. When a contract is alleged in any pleading, a bare denial of the contract by the opposite party shall be construed only as a denial of the making of the contract in fact, and not of its legality or its sufficiency in laAv, whether with reference to the Statute of Frauds or otherwise. 24. 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 whole or any part thereof, unless the precise words of the document or any part thereof are material. 25. Wherever it is material to allege malice, fraudulent in- tention, knowledge, or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred. 26. Wherever it is material to allege notice to any person of any fact, matter, or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice be material. 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 otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letters, conversations, or circumstances without setting them out in detail. And if in such case the person 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. 28. 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. [E.g. — Consideration for a bill of exchange where the plaintiff sues only on the bill, and not for the consideration as a sub- stantive ground of claim.] 29. Where an action proceeds in a district registry, all plead- ings and other documents required to be filed shall be filed in the district registry. 30. In actions for damage by collision between vessels, unless the court or a judge shall otherwise order, each solicitor 300 APPENDIX D. shall, before any pleading is delivered, file with the proper officer a document to be called a Preliminary Act, which shall be sealed up, and shall not be opened until ordered by the court or a judge, and which shall contain a statement of the following particulars : — (a). The names of the vessels which came into collision and the names of their masters. (b). The time of the collision. (c). The place of the collision. (d). The direction of the wind. (e). The state of the weather. (/). The state and force of the tide. (g). The course and speed of the vessel when the other was first seen. (h). The lights, if any, carried by her. (i). The distance and bearing of the other vessel when first seen. (k). The lights, if any, of the other vessel which were first seen. (I). Whether any lights of the other vessel, other than those first seen, came into view before the collision. (m). What measures were taken, and when, to avoid the collision. (n). The parts of each vessel which first came into contact. If both solicitors consent, the court or a judge may order the preliminary acts to be opened and the evidence to be taken thereon without its being necessary to deliver any pleadings. INDEX. -•- — PAGE ABROAD, contracts made or torts committed 252, el seq. ACCEPTANCE, proposal not binding till ........ 6, / must be unqualified . . . . . . • • . 9, 10 within 17th sect, of Statute of Frauds .... 27, 28, 29 ACCEPTOR estopped from denying drawer's right to draw .... 263 ACCIDENT, alteration of written contract by . . . . 11 5, et seq. if inevitable, not actionable ....... 184 when occurrence of, primd fade evidence of negligence . . ib. ACCOMMODATION BILL, where no effects, no notice of dishonour necessary . . 112, et seq. ACCORD AND SATISFACTION, smaller sum cannot be pleaded in satisfaction of greater . . 165 qualifications of rule . . . . . . . . . 165, 166 ACCUMULATION OF INCOME 99 ACKNOWLEDGMENT, what svfficient to take debt out of Statute of Limitations . 162, 163 by joir.t contractor . . . • • • • . 163, 164 ACTION lies for deprivation of a right 176 notice of, sometimes necessary ....... 233 cannot be brought twice for same wrong ..... 239 ADEQUACY OF CONSIDERATION, courts will not enquire into 1,3 unless there is fraud . . . . . • • • 302 INDEX. PAfiE ADVERTISEMENT, contract by ......... i AGENTS. See Principal and Agent. AGREEMENT, double meaning of, in 4th sect, of Statute of Frauds . . 25 AGRICULTURAL HOLDINGS ACT, 1875, provisions of, as to fixtures ....... 75 ALTERATION OF WRITTEN CONTRACT, what, fatal to validity . . . . . . . 115, et seq. AMBIGUITY, latent, may be explained ........ 34 ANIMALS ferce natures cannot be distrained ...... 73 liability of owner for trespasses of . . . . . 179 APPROPRIATION of chattels sold .......... 144 of lost goods may amount to larceny ....'. 222, 223 of payments .......... 134 ARBITRATION, contract to refer to . ....... 95, 96, 97 ASSAULT, master responsible for, if committed by servant within general scope of authority ........ 202, et seq. committed in defence of, or to regain, freehold premises justifiable 219 ASSIGNEE, of policy need not show interest of his own . . . 136 of chose in action can sue ........ 160 ASSIGNMENT OF LEASE 80 ATHEISTICAL CONTRACTS 103 AUCTION AND AUCTIONEER, auctioneer when agent to bind parties within Statute of Frauds 16 bidding revocable before hammer falls 7 BAILMENTS, different kinds of 39 BANKER bound to honour customer's cheque 176 INDEX. 303 paox BANKRUPT, contract by, on new consideration to pay old debt ... 6 BILLS OF EXCHANGE, consideration for presumed ....... 2 notice of dishonour, when unnecessary .... 112, et seq. alteration of . . . . . . 115, et seq, authority of partner to accept, for firm 142 BILLS OF LADING, nature of .......... 145 BILLS OF SALE, absolute or conditional ........ 157 new act as to ......... ib. BOARD AND LODGING not an " interest in land" ........ 22 BOUGHT AND SOLD NOTES, what they are .......... 16 effect of material variance between ...... ib. BREACH OF PROMISE TO MARRY, promise need not be in writing ....... 149 but plaintiff's evidence must be corroborated . . . . 150 BROKER may bind parties within Statute of Frauds . . . . 16 may be liable as principal ........ 36 person buying from, not allowed to set-off against principal . 69 CAMPBELL'S (LORD) ACT, measure of damages under ....... 239 action under, not maintainable when deceased obtained com- pensation in his lifetime ....... ib. CARRIER, common, is an insurer ........ 183 Carriers Act (11 Geo. IV. & 1 Will. IV. c. 68) . . 47, et seq. Railway and < 'anal Traffic Act (17 & 18 Vict. c. 31) . 47 of passengers, liability of . . . . . . . . 183 See Railway Companils. CHARACTER of servant may be a privileged communication .... 227 evidence of, sometimes admissible tho' hearsay .... 246 CHEQUE, refusal of banker to honour 176 alteration of . . . . • . . 115, et seq. CHILDREN, contributory negligence of ....... 190 304 INDEX. CHOSE IN ACTION, reduction into possession of wife's assignable under Judicature Act COHABITATION, past, no consideration .... future, illegal consideration liability of man on contracts of mistress COMMON EMPLOYMENT, doctrine of ...... 257 161 ib. 59 . 195, 196, 197 CONCEALMENT of defects in contracts of sale from insurers 217 136, ft seq. CONDITIONAL PEOMISE UNDER STATUTE OF LIMITA- TIONS 162, 163 CONDITIONS, "just and reasonable," under Railway and Canal Traffic Act . 47 of re-entry in leases ......... 79 precedent ........... 126 CONSIDERATION, when necessary and what, amounts to sufficient . . . 1, 2, 3 when money can be recovered for failure of ... . 3 mere moral, not sufficient ........ 6 past, when .sufficient . . . . . . . . . 3, 4, 5 effect of illegal .......... 6 necessary to bond in restraint of trade ..... 98 of guaranty need not appear in document ..... 14 CONSTRUCTION OE WRITTEN CONTRACTS is for the court .......... 168 object is to arrive at intention of parties ..... ib. rules for ........... ib. CONTRACT, mutuality of .... . by letter ...... illegal ...... impossible ...... persons incapable of making binding . of corporation ..... breach of, by renunciation . measure of damages in 9, 10 90 108 127, et seq. 132 152, et seq. 169 tort arising out of ........ . 230, 231 CONTRACTOR, employer not generally responsible for negligence of . . .199, 200 CONTRIBUTION between co-sureties . no, between wrong-doers 18 236 INDEX. 305 CONTRIBUTORY NEGLIGENCE, founded <>n principle volenti rum fit injuria . when plaintiff may recover in spite of doctrine of identification .... of children ...... PAGE 187 . 187, 188 189 190 CONVERSION, what amounts to innocence of defendant no defence 224, 225 lb. CONVEYANCING LEADING CASES. See Appends B. CORPORATIONS must generally contract by seal exceptions to rule 132 133 COVENANTS running with the land CREDIT, effect of sale of goods on CROPS, 83, et seq. 144 contracts for sale of, when within 4th sect, of Statute of Frauds 21 CUSTOM, conditions of valid ......... 37 evidence of, to explain or add incidents to written contracts 35, et seq. agent may be liable as principal by ..... 36 DAMAGES, measure of, in contract „ tort .... question whether liquidated, or penalty in action of seduction rule as to remoteness 169 237, et seq* . ' 17:; 215 181 DAMNUM SINE INJURIA not actionable . . 175, 176 DANGEROUS SUBSTANCES BROUGHT ON LAND must be kept at peril 177, et seq. DEATH of principal revokes agent's authority presumption of, after seven years' absence 58 258 DEBT, assignment of " DEBT, DEFAULT, OR MISCARRIAGE " 160 11, et seq. X 306 INDEX. PAGE DECEASED PERSONS, declarations by, in ordinary course of business or contrary to interest 246, el seq. DECEIT, action for ........... 215 See Fraud. DEDICATION OF WAY TO PUBLIC, how presumption of, arises ....... 251 DEED does not require consideration ....... 2 illegality vitiates ......... 91 estoppel by .......... 262 DEFAMATION, privileged communications 225 DEL CREDERE AGENT, his undertaking not within Statute of Frauds .... 13 DISHONOUR, NOTICE OF, when excused ......... 112, et seq. DISMISSAL, WRONGFUL, action for ........... 154, 155 DISTRESS, things privileged from ........ 72 how landlord becomes trespasser ab initio . . . . . 217 DIVORCE, woman after, cannot sue late husband for assault committed during coverture ......... 256 DOGS not now ferce natura- ......... 73 responsibility of owners for bites of . . . . . . 178 DON AT TONES inter vivos ........... 249 mortis causd .......... ib. DORMANT PARTNERS, what notice of retirement from firm necessary . . . . 142 EJECTMENT, plaintiff must recover by strength of his own title, not by weak- ness of opponent's ........ 223 ENTRIES BY DECEASED PERSONS 246 TNDEX. 307 PAGE EQUITY LEADING CASES. See Appendix B. ESTOPPEL, leading principles of doctrine 261 EVIDENCE, hearsay ........... 241 declarations by persons since deceased . . . . . 246 presumptions of death ........ 258,259 oral, to explain or vary written contracts .... 33, et teq. rules for construction of written contracts . . . . . 168 separate documents containing contract cannot be connected by oral evidence ........ 30, 31, 32 EXCUSES FOR NON-PERFORMANCE OF CONTRACTS . . 152 EXECUTED CONSIDERATION, when it will support a promise ....... 3 FACTORS' ACTS (9 Geo. IV. c. 83, and 5 & 6 Vict. c. 39) . . . 69 FALSE REPRESENTATION. See Fraud. FELLOW SERVANTS, liability of master for negligence of ..... 194, et seq. FELONY, contract to compound, illegal 91 when tort is also, civil remedy suspended ..... 22S FEME COVERT. See Husband and Wife. FERJE NATURES cannot be taken in distress . . . . . . . < ; '> trespasses of . . . . . . . . • 178 FEROCIOUS ANIMALS, owner keeps them at his peril ....... 17S FINDER has a right against all except true owner .... 222, et seq. may be guilty of larceny ....... ib. FIRE, negligent keeping of 208, 209 FIXTURES, right of tenant to remove 7i, et seq. cannot be distrained . . . . . • • • • < ;; FORBEARANCE TO SUE may be sufficient consideration to support promise ... 2 x 2 :?08 INDEX. FORCIBLE ENTRY PAGE c 219 FOREIGN CONTRACT, construction of, governed by lex loci contractus .... r 253 remedy on, by lex loci fori ........ ib. FOREIGN LAW, how proved .......... 255 FORGERY cannot be ratified ......... 61 FORMATION OF CONTRACT, proposal not binding till acceptance ...... 6, 7 parties must contract ad idem . . . . . . 9, 10 contracts made by letter ........ 8 requisites of the " memorandum or note in writing " . . . 15 FRAUD may be presumed from inadequacy of consideration ... 3 liability of principal for fraud of agent .... 62 recklessness equivalent to fraud ...... 217 in company's prospectus ........ 216 may sometimes be committed with impunity . . . . 217 FRAUDS, STATUTE OF, 29 Car. II., c. 3, " debt, default, or miscarriage " . . . . . 11, etseq. guaranty is a collateral undertaking ..... 12 word " miscarriage " applies to torts ..... 13 consideration need not appear on face of guaranty ... 14 the " memorandum or note in writing "..... 15 who is an agent to sign ........ ib. bought and sold notes ........ 16 how surety discharged . . . . . . . 16, 17, 18 contribution between sureties ....... 18 right of surety to securities ....... ib. continuing guaranties ........ ib. promise to debtor himself not within statute . . . .19,20 interests in land and growing crops . . . . . . 21, 22 contracts not to be performed within year . . 22, 23, 24, 25, 32 statute does not apply where agreement to be executed on one side within year . . . . . . . . . 24, 25 where several articles sold at one time, and value reaches £10, 17th sect, applies 26,27 so where at time of contract it is uncertain whether value will be £10 27 acceptance and receipt . . . . . . . 27, 28, 29 what objections person who has accepted is entitled to make . 29 goods not yet in existence . . . . . . . 29, 30 variation of written contract by parol ..... 33, 35 GAMING CONTRACTS GIFTS .... 106, et seq. 249 GUARANTIES must be in writing under Statute of Frauds consideration need not appear in document 14 ib. INDEX 309 HEARSAY not generally admissible exceptions to rule HIGHWAY, what is dedication of repair of extinguishment of 242 243, 244 250 251 ib. 252 HORSE, infant may be liable for hire of . right of servant to bind master by warranty of liability of owner for trespass of . what meant by warranty of soundness HOUSE, implied warranty of fitness on letting furnished HUSBAND AND WIFE, when living together, presumption is that she is his agent alitcr, when living apart ..... liability of husband for wife's pre-nuptial debts deed contemplating future separation void common law generally regards, as one person . Married Women's Property Act, 1870 129 61 179 122 86 58 58, 59 258 103 256 ib. IGNORANTIA FACTI EXCUSAT, IGNORANTIA JURIS NON EXCUSAT, money paid under mistake of farts can b recovered . . . 151 but not money paid under mistake of law . . . . . 152 ILLEGAL CONTRACTS . IMMORAL CONTRACTS . IMPLIED WARRANTIES IMPOSSIBLE CONTRACTS INDEMNIFICATION . 89 94 122, et seq. 108, et seq. 4, 5 INFANTS can only bind themselves for necessaries Infants Relief Act, 1874 . 127, ct so/. 130 INJURIA SINE BAM NO is actionable INNKEEPERS, liabilities of lien of 174, ct seq. INSANITY, contracts by insane persons 43 44 131 310 INDEX. INSURANCE, life insurance marine insurance 134 137 INTEREST IN LAND, that is, within Statute of Frauds 21 JOINT CONTRACTORS, effect of acknowledgment or part payment by one joint con- tractor under Statute of Limitations 163, 164 JUDICATURE ACTS (36 & 37 Vict. c. 66 ; 38 & 39 Vict. c. 77), provisions of, as to married women ...... choses in action ...... mortgagors ....... the whole of Order XIX (rules of pleading) will be found in Appendix D. 257 161 82 JUDGMENT, effect of former, as estoppel 261 JUDGE, province of, in "necessaries" case negligence case is to construe documents ..... decide whether a communication is privileged what he ought to do where tort is also a felony . 130 184 168 227 228, 229 JURISDICTION, agreement to oust, of Courts void of magistrates ousted by claim of right 95, 96, 97 233 JURY, province of, in "necessaries" case negligence case suretyship case 130 184 13 JUS TERTII 223 JUSTICES, actions against, conditions of bringing entitled to notice of action claim of right ousts jurisdiction of . . 232,233 ib. 233 LADING, BILL OF, what is ...... . assignment of, defeats right to stop in transitu 145 147 LAND, interest in, within Statute of Frauds negligent user of ... . support of, action for disturbance of . 21 177, 178,211 209 INDEX. 311 LAND CARRIERS ACT (11 Geo. IV. & 1 Will. IV. c. 68) PAGE 47 LANDLORD AND TENANT, tenant estopped from disputing landlord's title . question who is liable for nuisance on demised premises waiver of forfeiture ....... implied warranty of fitness on letting furnished house tilings privileged from distress ..... what fixtures tenant may remove .... covenants running with the land .... licences ......... 263 206 78 86 72 74 83 87 LARCENY, finder may be guilty of 222 LATENESS OF TRAINS, responsibility of company for 51, et seq. LATENT AMBIGUITY, oral evidence may be given to explain ..... 34 LAW, foreign, how proved ........ 255 mistake of, no excuse . . . . . . . . 151 leading maxims of the, will be found in Appendix C. LEASE, if for more than three years required by Statute of Frauds to be • in writing .......... 76 and by 8 & 9 Vict. c. 106, s. 3, to be by deed .... 77 lease void under these statutes may yet control terms . . ib. LENDER OF CHATTEL, duties of .......... 41 LETTER, CONTRACT BY 8 LEX LOCI CONTRACTUS AND LEX LOCI FORI 253 LIBEL. -See Privileged Communication. LICENCE, mere, is revocable . . • • • whether licensee has right of action against third party . has generally no right of action for nuisance by licensor's neg- ligence ....••••••• LIEN may be general or particular ....... innkeepers right of 87 ib. 193 106 44 312 INDEX. PAGE LIFE, presumption as to duration of ...... . 258 LIFE INSURANCE not a contract of indemnity merely . . .... 135 interest necessary ......... 134 concealment and misrepresentation in .... . 136 effect of suicide .......... ib. LIMITATIONS, STATUTE OF, promise to pay debt barred by ...... . 6 acknowledgment of debt to bar ....... 162 acknowledgments by joint contractors . . . . . 163 LLOYDS', evidence of usage at, to explain contract ..... 37 LODGER, contract to let furnished lodgings within Statute of Frauds . 22 but not contract for board and lodging merely .... ib. Lodgers' Goods Protection Act (34 & 35 Vict. c. 79) . . 73 LORD'S DAY, contracts made on the ....... 104, 105, 106 LUGGAGE, personal, what is ........ . 50 railway company not responsible for passenger's, under his own control ........... ib. MACHINERY, master may be responsible to servant through defective . 194, et seq. MAGISTRATES. -See Justices. MALICE. »S'ee Privileged Communication. MALICIOUS PROSECUTION, action for, requisities for successfully maintaining . . . 235 MANSLAUGHTER, contributory negligence no defence in prosecution for . . 189 MAN-TRAPS, person who sets, responsible to trespasser injured . . 193 MARINE INSURANCE, _ when concealment or misrepresentation vitiates policy of . . 137 MARKET OVERT in country . . . . . . . . . . U2 in London .......... ib, whether sale to shopkeeper is privileged ..... ib. INDEX. 313 MARRIAGE, contracts in restraint of, or to briny about 102 MARRIED WOMAN. Sei BuSBAHD am. Win:. MARRY, CONTRACT TO 148, 149 MASTER AND SERVANT, when writing necessary to contract . when servant can bind master by giving warranty master generally responsible for torts of servant responsibility of master for injuries to servant . what justifies summary discharge of servant fiction on which action of seduction is based 24 61 202 L9 I. ei geq. . 154, L55 215 MASTER OF SHIP, his authority to bind owners 60 MAXIMS. See Appendix C. MKMORANDUM IN WRITING, what is sufficient, to satisfy Statute of Frauds 15, 16 MERCANTILE CUSTOM, oral evidence of, when admitted to explain document 36 MISDEMEANOUR, contract for compounding, of public nature illegal 91 MISREPRESENTATION. See Fraud. MISTAKE, money paid under, of fact may be recovered, but not money paid under mistake of law 1 50, ei seq. MORAL OBLIGATION, mere, will not support promise MORTGAGES, position of mortgagor's tenants as to mortgagee mortgagor empowered by Judicature Act to sue alone rights and position of mortgagor generally MUTUALITY 80, et seq. 82 ib. 9,10 NECESSARIES for married women for infants 55, et seq. 127, etseq. NEGLIGENCE of railway companies duties of judge and jury in action for contributory ..... 183 1S4 186, et seq. 314 INDEX. PAGE NEGOTIABLE INSTRUMENTS 110, et seq. NOTICE OF ACTION to justices, constables, &c. 233 NOTICE OF DISHONOUR, when unnecessary 112, et seq. NUISANCE, action may sometimes be maintained for public . . 211, et seq. OFFER must be accepted in terms, or no agreement .... 9 may be retracted any time before acceptance .... 6 ORAL EVIDENCE, effect of, on written contract ....... 33 PAROL EVIDENCE. See Oral Evidence. PART PERFORMANCE within Statute of Frauds ........ 31 Equity will sometimes enforce contracts under Statute of Frauds in case of .'........ . 32 PARTNERSHIP, sharing in profits not conclusive evidence of . . 1 40, et seq. Bovill's Act (28 & 29 Vict. c. 86) 141 what constitutes a holding out ....... ib. duties of retiring partners . 142 partnership a branch of the law of agency .... ib. PASSENGERS, CARRIERS OF, duties of .... 183, et seq. PASSENGERS' LUGGAGE, liability of railway companies in respect of 49, et seq. PAST CONSIDERATION, when it will support a promise . . . . . . . 3, et seq. PAWNBROKERS, liabiKties of, at common law 41 under 35 & 36 Vict. c. 93 41, 42 PENALTIES AND LIQUIDATED DAMAGES .... 173 PERFORMANCE within Statute of Frauds 30, 31 suing before the day of 152 PERPETUITIES 99 ixnux. 315 PLEDGE. See Pawnbrokers. POSSESSION, what suffices against wrong-doer POST, contracts made through 222, ct Stq. 8,9 PRESUMPTION of death after seven years' absence that wife is her husband's agent of privilege .... 258 58 227 PPJNCIPAL AND AGENT, wife binds husband to her contracts on principle of agency extent of agent's authority ..... who may be an agent to sign under Statute of Frauds suing undisclosed principal agent sometimes liable as principal . rights of set-off against factor's principal . fraud of agent is fraud of principal . partnership a branch of the law of agency 55, ct seq. 59, et seq. 15 64, et seq. 66 67 63 142 PRINCIPAL AND SURETY. See Surety. PRIVILEGED COMMUNICATION, presumption of, rebutted by proof of express malice . . 227 must not be made unnecessarily by telegram or post-card . ib. PRIVITY not generally necessary in action for tort . 230, 231 PROBABLE CAUSE, want of, in action for malicious prosecution 235 PRODUCTION necessary to constitute valid tender, unless dispensed with . 166, 167 PROFITS, participation in, not conclusive evidence of partnership 141 PROMISSORY NOTE, effect of alteration of PROPERTY in goods, when it passes on sale PROPOSAL may be retracted before acceptance 115, et seq. 142, etseq. 6,7 PROSPECTUS, directors of company liable for misrepresentations in 216 31 G INDEX. PUBLIC NUISANCE, ordinary remedy is by indictment or information . . . 212 but action may sometimes be brought in respect of . . . ib. PUBLIC POLICY, contracts void for contravening ...... 89 PUBLICATION OF LIBEL, wife is sufficiently a third person for this purpose . . . 256 QUALITY, where implied warranty of, on sale of goods .... 124, 125 QUANTUM MERUIT, when plaintiff can sue on 158 RAILWAY COMPANY, not running, or lateness of trains ..... 51, et seq. Carriers Act (11 Geo. IV. & 1 Will. IV. c. 68) ... 48 Railway and Canal Traffic Act, 17 & 18 Vict. c. 31 . . 46, et seq. passengers' luggage . ....... 49, 50, 51 duty of, as carriers of passengers . . . . . . 183 liability of, on through-booking ...... 197 contract of station-master for surgical attendance ... 59 sparks from engines ......... 208 " proper vice ".......... 45 act of God 46 ultra vires ........... 93 RATIFICATION, doctrine of, in regard to contracts ...... 61 Infants Relief Act, 1874 130 RECEIPT, demand of, may vitiate tender . . . . . . . 167 of goods within Statute of Frauds ..... 27, 28, 29 REDUCTION INTO POSSESSION of wife's choses in action 257 RES GESTjE, declarations admissible as part of 246 RESTRAINT OF MARRIAGE, contracts in, illegal ......... 102 RESTRAINT OF TRADE, contracts in total, illegal ........ 98 but contracts in partial, valid . . . . . . 98, et seq. contract in, may be partly good and partly bad . . 99, 100, 101 agreements of masters and trades' unions ..... 99 perpetuities and accumulation of income ..... ib. INDEX. 317 PAGE SABBATH. 5eeLoBD*aDAT. SALE, sect. 1 7 of Statute of Frauds 26, et seq. the " memorandum or note in writing " ..... lfi of a number of small articles amounting in aggregate to value beyond £10 26 market overt . . . ■ . . 112 when property passes on sale of goods . . 142, et seq. fraud 217 warranties and representations . ..... 118, et seq. SAMPLE, implied warranty on sale by 125 SATISFACTION, lesser sum cannot be pleaded in satisfaction of greater . . 165 SCIENTER, proof of, when necessary ........ 178 SECONDARY EVIDENCE, hearsay is .......... 242 SECURITIES, surety paying debt entitled to creditor's securities ... 18 SEDUCTION, fiction on which action for, is based . . . . . . 215 proof of service .......... ib. damages in action for ........ ib. SERVANT. See Master and Servant. SET-OFF, sale by factor of undisclosed principal . . . . 67, et seq. SHERIFF, " every Englishman's house is his castle " . . . . . 220, 221 SIGNATURE, what is sufficient under Statute of Frauds . . . . 15 STAKEHOLDER, when money paid to, can be recovered . . . . 1 06, e t seq. STOLEN GOODS, when true owner can recover . . . . . H2 STOPPAGE IN TRANSITU, who may exercise the right of, and when . . . . . ] 45 how right of, defeated 147 whether effect of, is to rescind contract or give lien . . . ib. 318 INDEX. SUICIDE, effect of, on policy of insurance PAGE 136 SUNDAY, contracts made on, when illegal 104, et seq. SUPPORT OF LAND, action for disturbance of . . . . house has no right to support from adjoining building 209 210 SURETY, how person becomes . . . how discharged ...... contribution between co-sureties right of, who has paid debt to have securities when justified in resisting payment . continuing guaranties .... promise to debtor himself not within statute 12, et seq. 16, 17, 18 18 ib. 5 18 19, 20 SURVIVORSHIP, presumptions as to 258 TENANT. See Landlord and Tenant. TENDER, essentials of valid 166, 167 effect of 167 TENTERDEN'S (LORD) ACT (9 Geo. IV. c. 14), provision of, as to sales of goods not in esse .... 29 fraudulent representations of solvency . . 216 acknowledgments saving the Statute of Limi- tations 162, 163 THELLUSSON ACT (39 & 40 Geo. III. c. 98) 99 TITLE, implied warranty of, on sale of chattel tenant estopped from disputing landlord's possession as against wrong-doer negotiable instruments market overt and stolen goods . 122, 123 263 222, 223 110 112 TITLE-DEEDS of client which solicitor is carrying to produce at trial not personal luggage 50 TORT, novelty of, no answer to action 176 founded on contract . . . . • • '.*.." ^"^' ^* promise to answer for another's debt arising out of tort is within Statute of Frauds 13 IN J) EX. 319 PAGE TRADE, contracts in restraint of. See Restraint of Tkadk. TRADE MARKS, warranty implied from ........ 125 TRESPASS, what possession suffices to bring action for .... 222, 223 escape of dangerous substances brought on land . . 177, et seq. ab initio 217 TRESPASSER, person setting man-trap or spring gun responsible to . 193 TRUST the " cloak of fraud " 156 person recovering damages from railway company trustee for insurers . . ........ 239 TURNPIKES 252 ULTRA VIRES, meaning and illustration of 93 UNSOUNDNESS, what is, in horse ......... 122 USAGE, evidence of, to explain written contract .... 35, 36, 37 VARIANCE, effect of, in bought and sold notes 16 VIS MAJOR, what is 46 excuses what would otherwise be actionable . . . . 178 WAGERING CONTRACTS, provisions of 8 & 9 Vict. c. 109 107 recovering deposit from stakeholder ..... 106, et seq. WAIVER of forfeiture . 78 of necessity to give notice of dishonour . . . . . 114, 115 of written contract by parol ....... 33 WARRANTY, oral evidence cannot be given to contradict plain meaning of . 121 must be part of contract of sale 120 whether implied, of title 122, 123 320 INDEX. PAGE WARRANTY— continued. when implied, of quality 124, 125 in charter-party as condition precedent ..... 126 by servant ... ........ 61 implied, of fitness on letting furnished house .... 86, 87 general, does not extend to obvious defects . . . . 121 WATERCOURSES, reasonable user of natural stream ...... 176 WAYS. See Highway. WIFE. See Husband and Wife. WORDS, how to be taken in construing written contract . . . 168 oral evidence to explain, when admissible ..... 36 WRITING, custody of ancient . . . . . • • • • 245 WRONG-DOER, any possession sufficient to maintain trespass against . . 222 WRONGFUL DISMISSAL. Sec Master and Servant. YEAR, contracts not to be performed within YEARLY TENANCY, tenancy-at-will may become 22, 23, 24, 25 77 THE END. STEVENS AND RICHARDSON, PRINTERS, 5, GREAT QUEEN STREET, W.C. Jh UC SOUTHERN REGIONAL LIBRARY FACILITY in urn iiiii urn ii AA 000 858 148 o