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BAEEISTEE-AT-LA'W, OF LEXCOLN'S INX, AND XOETH-EASTEEX CIECTJIT. LONDON : STEVENS AND SONS, LIMITED, 119 & 120, CHANCERY LANE, 189G. T LONDON : PRINTED BY C. F. ROWORTH, GREAT NEW STREET, FETTER LANE, E.C. PREFACE TO THE FIFTH EDITION. -♦ — The Editor having again had the opportunity of revising this work has endeavoured to increase its utility as a book of reference for practitioners without rendering it less acceptable to the law student. The very wide range of subjects covered by these Leading Cases makes it difficult for many of the principles dealt with in the notes to receive that detailed discussion which they may justly be con- sidered to deserve. This deficiency has, as far as possible, been remedied by a careful selection of the cases cited as illustrating the text. The industry of the reporters is mainly responsible for the somewhat considerable increase in the bulk of the present Edition. RICHARD WATSON. 12, Piccadilly, Bradford, December, 1895. , vi ) PREFACE TO THE FOURTH EDITION. The death of the learned author of this work occurred shortly after the publication of the last (the third) edition. A new edition having been called for, the present editor has endeavoured carefully to revise the notes, which in some cases have been re-written, and to incorporate the numerous decisions and statutes which have since been given and passed with respect to the subjects of them. The cases on Contracts have been re-arranged, and although the form and character of the book do not admit of a perfectly scientific treatment of the law of contracts, it is hoped that the change may prove useful. A somewhat large addition has been made to the cases cited. The references to all cases have been carefully revised, and the date of each decision, and a second reference, when existing, have been added. It may be observed that many modern decisions of importance do not find their way into the Law Reports, but are reported only in either the Law Times Reports, Law Journal Reports, or Weekly Reporter ; so that the importance of a case cannot be determined by its reference. The Index of Cases cited, which was omitted in the last edition, has been restored. A list of statutes referred to, and abbreviations used, have also been added. RICHARD WATSON. 21, Old Squabe, Lincoln's Inn, August, 1891. ( vii ) PREFACE TO THE FIRST EDITION. 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 case as if at nisi prim ; deeming it undesirable to confuse the student, and withdraw his attention from the true point and effect of the decision by appeals, rules for now trials, &c. viii PREFACE TO THE FIRST EDITION. 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 though 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 (though, 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. CM. 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. Johxson's Buildings, March, 1880. ( i* ) LIST OF LEADING CASES. PAGE Aceaman v. Mobkice (as to when property passes on sale of goods) 258 Aldous v. Coexwell (alteration of written instruments) 313 Aemoey v. Delamlrie (importance of possession as against wrong-doer) . . 448 Arnold v. Poole (corporations must generally contract under seal) 22 Ashby v. White (action always lies for infringement of a right) 347 Atchlnson v. Bakes (action for breach of promise of marriage) 327 Baldet v. Pakker (contract for sale of a number of trifling articles amounting in aggregate to value of £10, must be in writing) 98 Baxter v. Portsmouth (lunatic may sometimes contract) 18 Beaumont v. Reeve (mere moral consideration will not support promise] . . 125 Behn v. Burness ("now in port of Amsterdam" in charter-party, held a warranty) 194 Bickerdike v. Bollmax (notice of dishonour sometimes unnecessary) .... 114 Birkmyr v. Darnell (" debt, default, or miscarriage ") 83 Blower v. Great Western Railway Company (animal's "proper vice" excuses carrier) , 237 Boydell v. Drummoxd (separate documents containing contract cannot be connected by oral evidence) 106 Brice v. Baxxistee (assignment of chose in action) 293 Bunch v. Great Western Railway Company (passengers' luggage) .... 247 Butteefleld v. Foeeestee (contributory negligence of plaintiff generally disentitles him to complain) 373 Calye's Case (as to the liabilities of innkeepers) 233 Capital and Counties Bank v. Henty (defamation) 457 Carter v. Boehm (concealment of material fact vitiates policy of in- surance) 208 Chasemoee r. Richards [damnum fine injuria not actionable) 347 Claeke v. Cuckfield Union (corporations can sometimes contract without teal; 22 LIST OF LEADING CASES. PAGE Clayton v. Blakey (effect of leases void under sects. 1 and 2 of Statute of Frauds) 80 Coggs v. Bernard (bailments) 225 Collen v. Wright (agent who had exceeded authority in granting lease taken to have warranted that he had authority) 58 Collins v. Blantern (illegality) 136 Cooke v. Oxley (proposal can he retracted any time before acceptance) . . 3 Cornfoot v. Fowke (liability of principal for representations of agent) .... 44 Cowan v. Melbourne (atheistical contracts illegal) 155 Cox v. Hickman (participation in profits not conclusive evidence of part- nership) 63 Cox v. Midland Railway Company (implied authority of agents) 39 Crepps v. Durden (conditions of bringing actions against magistrates) .... 475 Crosby v. Wadsworth (growing grass " an interest in land ") 93 Cumber v. Wane (lesser sum cannot be pleaded in satisfaction of greater) . . 302 Cutter v. Powell (as to when plaintiff can sue on quantum meruit) 220 Dalby v. India and London Life Insurance Company (life insurance is not a contract of indemnity merely) 200 Darrell v. Tibbits (fire insurance contract of indemnity merely) 205 Davenport v. Thomson (undisclosed principals) 47 Davies v. Mann (contributory negligence does not disentitle if defendant by reasonable care could have averted consequences of plaintiff's negli- gence) 374 Denton v. Great Northern Railway Company (responsibility of railway company for not running advertised train) 251 Didsbury v. Thomas (hearsay evidence) . . 499 Diggle v . Higgs (wagering contracts void, and stake may be recovered from stakeholder) 163 Dovaston v. Payne (as to dedication and repair of highways) 510 Dumpor v. Symms (waiver of forfeiture, &c.) 290 Egerton v. Brownlow (public policy) 133 Elmore v. Stone (acceptance under 17th section of Statute of Frauds) ... 100 Elwes v. Mawe (as to tenant's right to remove fixtures) 276 Fabrigas v. Mostyn (as to torts committed and contracts made abroad, but sued on here) 516 Finch v. Brook (production, unless dispensed with, essential to valid tender) 305 Fletcher v. Rylands (liabilities of persons who bring dangerous sub- stances on their lands) 356 LIST OF LEADING CASES. xi PAGE Geoege v. Claqett (set-off by purchasers from factors) 52 Goss v. Nugent (written instrument cannot be varied, but may be waived by parol) 174 Hadley v. Baxendale (measure of damages in contract) 333 Haeeison v. Bush (privileged communications) 462 Hebdon v. West (life insurance) 200 Higham v. Ridgway (declarations contrary to interest of deceased persons admissible evidence) 506 Hilbeey v. Hatton (innocent intention no defence in action for wrongful conversion of goods) , 453 Hochstee v. De La Toue (suing before day of performance has arrived) . . 330 Hopkins v. Tanqueeay (warranty must be part of the contract of sale) . . 187 Indeemaue v. Dames (person on lawful business may maintain action where trespasser or licensee could not) 381 Ieons v. Smallpiece (delivery or deed necessary to gift) 279 Jolly v. Bees (private arrangement unknown to tradesmen between hus- band and wife may disable latter from pledging former's credit) .... 35 Jones v. Just (warranty of quality sometimes implied) 191 Joedan v. Noeton (proposal must be accepted in terms) 7 Keech v. Hall (mortgagee may eject without notice tenant claiming under lease from mortgagor granted after mortgage and behind mort- gagee's back) 72 Kemble v. Faeeen (sum described by parties as liquidated damages may be only a penalty) , 340 Kingston's Case, Duchess of (estoppels) 529 Lampleigh v. Beathwait (past consideration will support a promise if moved by previous request) 123 Langeidge v. Levy (privity sometimes necessary to action for tort) 472 Le Blanche v. London and Noeth Westeen 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) 253 Lee v. Geiffin (Lord Tenterden's Act as to goods not in esse) 104 Lickbaeeow v. Mason (right of stoppage in transitu defeated by negotiating bill of lading) 204 Limpus v. London Geneeal Omnibus Company (master generally respon- sible for torts of servant committed in course of employment and within scope of authority) 104 Listee v . Peeeyman (malicious prosecution and false imprisonment) 481 xii LIST OF LEADING CASES. PAGE Lorus r. Chandelor (warranties and representations) 184 Lowe v. Peers (contracts in restraint of marriage contrary to public policy and void) 152 Ltjmley v. Gye (damage need not be legal and natural consequence of tort) 491 Lynch v. Nttrdin (children can be guilty of contributory negligence) .... 378 Mackinnon v. Penson (surveyor of highways may be liable for misfeas- ance, but not for nonfeasance) 385 Manby v. Scott (husband liable on wife's contracts on principles of agency) 33 Marriott v. Hampton (money paid under mistake of law, or by compulsion of legal proceedings, cannot generally be recovered) 128 Master v. Millee (material alteration vitiates written instrument) 313 Melloes v. Shaw (master employing incompetent workmen, or using defective machinery, may be responsible to servant hurt thereby in course of service) 390 Meeeyweathee v. Nixan (defendant mulcted in damages in action of tort cannot generally sue co-defendant for contribution) 488 Millee v. Race (bank notes pass, like cash, on delivery) 110 Mitchel v. Reynolds (contracts in total restraint of trade illegal) 146 Montagu v. Benedict (husband not liable for goods not necessaries sup- plied to wife, unless affirmative proof of his having authorized con- tract) 33 Moeley v. Atteneorough (implied warranty of title) 189 Moeley v. Bied (joint tenancy) 76 Moeeitt v. Noeth-Easteen Railway Company (Carriers Act protects car- rier where goods are sent by mistake beyond their destination) 243 Moss v. Gallimoee (mortgagee giving proper notice, entitled to rent due from mortgagor's tenant admitted before the mortgage) 72 Mountstephen v. Lakeman (guaranty is collateral undertaking to answer for another person who remains primarily liable) 84 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 pre- sumption arises that he is dead) .. 525 Nichols v. Marsland (vis major may excuse what would otherwise be an actionable tort) 357 Pasley v. Freeman (fraud and deceitful representations) 428 Pateeson v. Gandaseqtji (as to when the seller of goods may sue the un- disclosed principal, and when he must stand or fall by the agent) .... 46 Peaece v. Brooks (fornicatory contracts illegal) 141 Peek v. North Staffordshire Railway Company (as to what are " just and reasonable " conditions within 17 & 18 Vict. c. 31, s. 7) 239 LIST OF LEADING CASES. PAGE Petee v. Compton (the words " not to be performed" in sect. 4 of Statute of Frauds mean "incapable of performance ") 96 Petees p. Fleming (" necessaries " for infants are those things which it is reasonable that they should have) 10 Pike p. Fitzgibbon (contracts of married women) 27 Poulton v. London and South Westebn 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) 404 Peice p. Toeeington (declarations in course of business of deceased persons admissible evidence) 505 Peiestley p. Fowleb (master's responsibility to servant for hurt sustained in service) 389 Quaeman v. Burnett (person employing contractor not generally respon- sible for contractor's negligence) 400 Readhead v. Midland Railway Company (carriers of passengers bound to use the greatest care, but not insurers) 367 Reedle p. London and Noeth Western Railway Company (the liabilities of a person employing a contractor) , 401 Rigge v. Bell (effect of leases void under sects. 1 and 2 of Statute of Frauds) 79 Roberts v. Orchard (notice of action) 478 Roe p. Teanmaer (construction of written agreements) 181 Rous p. Salvador (abandonment to underwriters) 210 Ryder v. Wombwell ( ' ' necessaries " for infants) 11 Scara manga p. Stamp (deviation) , 213 Scarfe v. Moegan (illegality of contracts made on Sunday ; hen) 160 Scott p. Aveey (illegality of contracts ousting jurisdiction of Law Courts) 143 Scott v. Shepheed (consequential damages) 362 Seaton p. Benedict (responsibility of husband on wife's contracts) 34 Semayne v. Geesham (every Englishman's house not his castle) . . 444 Sharp r. Powell (proximate cause) 362 Simpson p. Haetopp (goods privileged from distress) . . , 269 Smith v. Maeeable (implied warranty of fitness on letting furnished house) 198 Smith v. Tdackeeah (right to support from neighbouring land) 418 Smout p. Ilbeeey (responsibility of husband on wife's contracts) 35 Soltau p. De Held (nuisances) 421 Spencer v. Clark (covenants running with the land) 297 xiv LIST OF LEADING CASES. PAGE Tanner v. Smart (acknowledgment saying the Statute of Limitations).. . 316 Tarltng v. Baxter (when property passes on sale of goods) 257 Taylor v. Caldwell (impossible contracts) 170 Tempest v. Fitzgerald (acceptance under 29 Car. II. c. 3, s. 17) 100 Terry v. Hutchinson (seduction) 425 Thomas v. Rhymney Railway Company (responsibility of company issuing through ticket for accident happening off their line) 397 Thoenborow v. Whitacre (adequacy of consideration not required) 118 Todd v. Flight (nuisances from ruinous premises) 410 Turner v . Mason (wrongful dismissal) , , 322 Twyne's Case (gifts defrauding creditors) 285 Tyrie v. Fletcher (return of premium) , , 212 Vaughan v. Taff Vale Railway Company (negligent keeping of fire) .... 413 Vaux v. Newman (trespass ah initio) 440 Wain v. "Warlters (consideration of guaranty) 88 Waite v. North Eastern Railway Company (contributory negligence ; identification) , 377 Waugh v. Carver (how far sharing in the profits is evidence of partner- ship) 62 Wells v. Abrahams (tort amounting to felony) 467 Whitcher v. Hall (alteration of terms between creditor and debtor re- leases surety) 307 Whitcombe v. Whiting (acknowledgments by joint contractors) 321 Whitecross Wire Company v. Savill (average) 217 Wigglesworth v. Dallison (evidence of custom to qualify written con- tract) 178 Wilson v. Brett (though gratuitous bailee is bound to slight diligence only, he must use special skill if he possesses it) 225 Wood v. Leadbitter (mere licence is revocable at pleasure) 222 Yates v. Jack (ancient lights) 351 Young v. Grote (estoppel by negligence) 529 ( xv ) LIST OF ABBREVIATIONS AND REFERENCES. A. A. & E Adolphus & Ellis [1834—1840] Queen's Bench. A. & E. N. S Adolphus & Ellis, New Series [1841—1852] Queen's Bench. Adm. D Law Eeports [1876—1890] Admiralty Division. Aleyn Aleyn [1646—1648] King's Bench. Amb Ambler [1737—1784] Chancery. Anst Anstruther [1792—1797] Exchequer. App. Cas Law Reports [1876 — 1890] House of Lords and Privy Council. Am Arnold [1838—1839] Common Pleas. Am. & H Arnold & Hodges [1840—1841] Queen's Bench. Asp. M. C Aspinall's Maritime Cases [1870—1895] Admiralty. Atk Atkyns [1736—1754] Chancery. B. B. & A Barnewall & Alderson [1817—1822] King's Bench. B. & Ad Barnewall & Adolphus [1830—1834] King's Bench. B. & C Barnewall & Cresswell [1822—1830] King's Bench. B. C. C Lowndes and Maxwell's Bail Court Cases [1852] Bail Court. B. C. Rep Saunders & Cole's Bail Court Reports [1842—1894] Bail Court. Beav Beavan [1838—1866] Rolls. B. & S Best & Smith [1861—1869] Queen's Bench. Bell C. C Bell's Criminal Cases [1858—1860] Criminal Appeals. Bing Bingham [1822—1834] Common Pleas. Bing. N. C Bingham's New Cases [1834 — 1840] Common Pleas. Bligh Bligh [1879—1821] House of Lords. Bligh N. S Bligh's New Series [1827—1837] House of Lords. B. & B Broderip & Bingham [1819—1822] Common Pleas. B. & P Bosanquet & Puller [1796—1807] Common Pleas. Bro. C. C Brown's Chancery Cases [1778—1794] Chancery. Bro. P. C Brown's Cases in Parliament [1702 — 1800] House of Lords. B. & L Browning & Lushington [1863—1866] Admiralty. Buck Buck [1816—1820] Bankruptcy. Burr Burrow [1757 — 1772] King's Bench. Burr. S. C Burrow's Settlement Cases [1732—1776] King's Bench. xvi LIST OF ABBREVIATIONS AND REFERENCES. C. Cald Caldecott's Settlement Cases' [1775— 1786] King's Bench. Camp Campbell [1807—1816] Nisi Prius. Car. & K Carrington & Kirwan [1843—1853] Nisi Prius. Car. & M Carrington & Marshman [1840—1842] Ni.si Prius. C. & P Carrington & Payne [1823—1841] Nisi Prius. Chit Chitty [1770—1822] Bail Court and King's Bench. C. & F Clark & Finnelly [1831—1846] House of Lords. Collyer C. C Collyer's Chancery Cases [1844—1846] Chancery. C. B Common Bench Reports [1845 — 1856] Common Pleas. C. B. N. S Common Bench Reports, New Series [1856—1865] Com- mon Pleas. C. L. R Common Law Reports [1853 — 18.56] Queen's Bench, Common Pleas and Exchequer. C. P. D Law Reports [1875—1880], Common Pleas Division. Comyns Comyns [1695 — 1741] King's Bench. Cooper C. C Cooper's Chancery Cases [1815] Chancery. Cowp Cowper [1774—1778] King's Bench. Cox Cox [1744—1797] Chancery. Cox C. C Cox's Criminal Cases [1843 — 1895] Crown and Criminal Appeal. Cr. & Ph Craig & Phillips [1839—1841] Chancery. Cro. Jac Croke's Reports [1582 — 1641] King's Bench and Common Pleas. C. & J Crompton & Jervis [1830—1832] Exchequer. C. & M Crompton & Meeson [1832—1834] Exchequer. C. M. & R Crompton, Meeson & Roscoe [1834—1836] Exchequer. Curt Curteis [1843—1844] Ecclesiastical. D. Daniell Daniell [1817—1820] Exchequer. D. & M Davison & Merivale [1843—1844] Queen's Bench. Deacon Deacon [1836 — 1839] Bankruptcy. Deac. & Chit Deacon & Chitty [1832—1835] Bankruptcy. Deane Ecc. Rep Deane's Ecclesiastical Reports [1855] Ecclesiastical. Dears. C. C Dearsley's Crown Cases [1852 — 1856] Criminal Appeal. Dears. & B. C. C. Dearsley & Bell's Crown Cases [1856—1858] Criminal Appeal. De G De Gex [1844—1848] Bankruptcy. De G. F. & J De Gex, Fisher & Jones [1859—1862] Lord Chancellor and Appeals in Chancery. DeG. J. &S De Gex, Jones & Smith [1862—1865] Lord Chancellor and Appeals in Chancery. De G. M. & G De Gex, Macnaghten & Gordon [1851—1857] Lord Chan- cellor and Appeals in Chancery. De G. & Sm De Gex & Smale [1846- 1852] Knight-Bruce, V.-C. LIST OF ABBREVIATIONS AND REFERENCES. xvii Den. C. C Denison [1844—1852] Criminal Appeal. Dick Dickens [1559—1797] Chancery. Dougl Douglas [1778—1784] King's Bench. D. P. C Dowling's Practice Cases [1830—1840] Queen's Bench, Common Pleas, Exchequer, and Bail Court. D. N. S Dowling's New Series [1841 — 1842] Queen's Bench, Common Pleas, Exchequer, and Bail Court. D. & L Dowling & Lowndes [1843—1849] Queen's Bench, Com- mon Pleas, Exchequer, and Bail Court. D. & R Dowling & Ryland [1821—1827] King's Bench. D. & R. N. P. C Dowling & Ryland' s Nisi Prius Cases [1822—1823] Nisi Prius. Drink Drinkwater [1840—1841] Common Pleas. Drew Drewry [1852—1859] Kindersley, V.-C. Drew. & Sm Drewry & Smale [1859 — 1865] Chancery. Durn. &E Durnford & East (Term Reports) [1785—1800], King's Bench. E. East East [1800—1812] King's Bench. Eden Eden [1756—1766] Chancery. El. & Bl Ellis & Blackburn [1852—1858] Queen's Bench. El. Bl. & El Ellis, Blackburn & Ellis [1858] Queen's Bench. El. &E1 Ellis & Ellis [1858—1861] Chancery. Esp Espinasse [1793—1807] Nisi Prius. Ex Exchequer Reports, by "Welsby, Hurlstone & Gordon [1847—1856] Exchequer. Ex. Ch Exchequer Reports, by "Welsby, Hurlstone & Gordon [1847 — 1856] Exchequer Chamber. Ex. D Law Reports [1875—1880] Exchequer Division. F. F. & F Foster & Finlason [1856—1867] Nisi Prius. G. Gale Gale [1835—1836] Exchequer. G. & D Gale & Davison [1841—1843] Exchequer. GifE Giffard [1857—1865] Vice -Chancellor Stewart. Gow Gow [1818—1820] Nisi Prius. H. Hare Hare [1841— 1853] Wigram, V.-C, Turner, V.-C, and Wood, V.-C H. & R Harrison & Rutherford [1865—1866] Common Pleas. H. & W Harrison & Wollaston [1835—1836] Bail Court and King's Bench. H. & M Hemming & Miller [1832 1865] Chant rv. s.— c. b V xviii LIST OF ABBREVIATIONS AND REFERENCES. Hodges Hodges [1835—1837] Common Pleas. Holt Holt [1686—1710] King's Bench. Holt Holt [1815—1817] Nisi Prius. H. & H Horn & Hurlstone [1838] Exchequer. II. L House of Lords. H. L. Cas House of Lords Cases, by Clark [1847—1866] House of Lords. II. & C Hurlstone & Coltman [1862—1865] Exchequer. H. & N Hurlstone & Norman [1856—1861] Exchequer. II. & W Hurlstone & Walmsley [1840—1841] Exchequer. Ir. C. L. R. Ir. Ch. Rep. Ir. R. C. L. Ir. R. Eq. . Ir. L. R. .Irish Common Law Reports [1850—1866] Common Law. .Irish Chancery Reports [1850—1866] Chancery. .Irish Common Law Series [1866 — 1878] Common Law. .Irish Equity Reports [1866—1878] Chancery. .Irish Law Reports [1879—1896] all the Courts. J. P Justice of the Peace. All the Courts. J. & W Jacob & Walker [1819—1822] Chancery. Johns Johnson [1858—1860] Chancery. Johns. & H Johnson & Hemming [1859—1862] Chancery. Jur Jurist [1837—1866] all the Courts. Jur. N. S Jurist, New Series [1837—1866] all the Courts. K. Kay Kay [1853—1854] Wood, V.-C. K. & J Kay & Johnson [1854—1858] Wood, V.-C. K. & Gr Keane & Grant [1854—1863] Common Pleas. Keen Keen [1836—1838] Chancery. Ld. Kenyon Lord Kenyon's Notes of Cases [1753—1759] King's Bench. L.J. L. J. L.J. L.J. L.J. Adm \ Bk Ch C. P Ex M. C Q. B Mat P. C P / Law Journal, New Series [1831—1896] Admiralty. Bankruptcy. Chancery. Common Pleas. Exchequer. Magistrates' Cases. Queen's Bench. Divorce and Matrimonial. Privy Council. i Probate. LIST OF ABBREVIATIONS AND REFERENCES. six L. E. Q. B Law Reports [1865—1875] Queen's Bench. L. R. C. P ,, ,, [1865— 1875] Common Pleas. L. R. Ex „ „ [1865— 1875] Exchequer. L. R. Adm „ ,, [1865— 1875] Admiralty. L. R. P ,, ,, [1865— 1875] Probate. L. R. C. C ,, ,, [18G5— 1875] Crown Cases Reserved. L. R. Eq ,, „ [1865— 1875] Master of the Rolls and Vice- Chancellors. L. R. Ch „ ,, [1865— 1875] Lord Chancellor's and Appeal. L. R. P. C ,, ,, [1865— 1875] Privy Council. L. R. H. L ,, ,, [1866— 1875] House of Lords. L. T. 0. S Law Times Reports, Old Series [1843—1859] all the Courts. L.T Law Times Reports, New Series [1859—1896] all the Courts. Leach C. C Leach's Crown Cases [1730 — 1815] Crown Cases. L. & C Leigh & Cave's Crown Cases [1S61 — 1865] Crown Cases. Lush Lushington [1859—1862] Admiralty. M. Mac. & G- Macnaghten & Gordon [1848 — 1852] Lord Chancellor. Madd Maddock [1815—1820] Chancery. M. & G Manning and Granger [1840 — 1845] Common Pleas. M. & W Meeson & Welsby [1836—1847] Exchequer. M. C. C Moody's Crown Cases [1824—1844] Exchequer Chamber. M. & M Moody & Malkin [1826—1830] Nisi Prius. M. & P Moore & Payne [1S2S— 1831] Common Pleas. M. & Rob Moody & Robinson [1830—1843] Nisi Prius. M. & R Manning & Ryland [1827—1830] King's Bench. M. & S Maule & Selwyn [1813—1819] King's Bench. M. & Scott Moore & Scott [1831—1834] Common Pleas. M'Clel M'Cleland [1824] Exchequer. M'Clel. & Y M'Cleland & Young [1824—1825] Exchequer. Marsh Marshall [1813—1816] Common Pleas. Mer Merivale [1815 — 1817] Chancery. Mod Modern [1669—1744] King's Bench. Moore Moore [1817—1827] Common Pleas. Moore P. C. C Moore's Privy Council Cases [1836—1862] Privy Council. Moore P. C. C. N. S.. Moore's Privy Council Cases, New Series [1862—1873] Privy Council. Moore Ind. App. Moore's Indian Appeals [1836 — 1873] Privy Council. Mur. & II Murphy & Hurlstone [1837] Exchequer. Mylne & C Mylne & Craig [1835—1840] Chancery. Mylne & K Mylne & Keen [1832—1835] Chancery. b2 xx LIST OF ABBREVIATIONS AND REFERENCES. N. N. R Bosanquet & Puller's New Reports [1804—1807] Common Pleas. N. & M Neville & Manning [1832—1836] King's Bench. N. & P Neville & Perry [1836—1838] Queen's Bench. P. Ph Phillips [1841—1819] Chancery. Park Ins Park on Insurance. Peake Peake [1790—1807] Nisi Prius. Peake's Add. Cas. .. .Peake's Additional Cases [1795 — 1812] Nisi Prius. P. ¥ms Peere Williams [1695—1735] Chancery. P. & D Perry & Davison [1838—1841] Queen's Bench. Price Price [1814—1824] Exchequer. Price P. C Price's Points of Practice [1830—1831] Exchequer. P. D Law Reports [1875—1890] Prohate Division. Q. Q. B. D Law Reports [1875—1890] Queen's Bensh Division. R. Rod Robinson [1798—1808] Admiralty. Russ Russell [1826—1829] Chancery. Russ. & Mylne Russell & Mylne [1829—1831] Chancery. R. & R. C. C Russell & Ryan's Crown Cases [1799—1824]. R. & M Ryan & Moody [1823—1826] Nisi Prius. R The Reports [1893—1896] all. S. Salk Salkeld [1689—1712] King's Bench. Scott Scott [1834—1840] Common Pleas. Scott N. R Scott's New Reports [1840—1845] Common Pleas. Selw. N. P Selwyn's Nisi Prius, by Keane & Smith. Sid. . . , Siderfin [1657 — 1670] King's Bench, Common Pleas, and Exchequer. Sim Simon [1826—1849] Shadwell, V.-C. E. Sim. N. S Simon's New Series [1850 — 1852] Chancery. Sim. & Stu Simon & Stuart [1822—1826] Lord Cranworth, V.-C. Smith Smith [1803—1806] King's Bench. Stark Starkie [1814—1823] Nisi Prius. Strange Strange [1716—1746] King's Bench. Swans Swanston [1818 — 1819] Chancery. Sm. & G Smale & Giffard [1852—1857] Stuart, V.-C. LIST OF ABBREVIATIONS AXD REFERENCES. T. Taunt Taunton [1807—1819] Common Pleas. T. R Term Reports (Durnford & East) [1785—1800] King's Bench. T. L. R Times Law Reports [1884—1896] all. Turn. & Russ Turner & Russell [1822—1824] Chancery. Tyr TyrwMtt [1830—1835] Exchequer. Tyr. & Gr Tyrwhitt & Granger [1835—1836] Exchequer. V. Ves. jun Vesey, junior [1789—1817] Chancery. Yes. & B Vesey & Beames [1812—1814] Chancery. W. West West [1839—1841] House of Lords. Wils Wilson [1743—1774] King's Bench and Common Pleas. Wils. C. C Wilson's Chancery Cases [1805—1817] Chancery. Wils. Exch Wilson's Exchequer Cases [1805—1817] Exchequer. W. Bl Sir William Blackstone [1746—1780] King's Bench and Common Pleas. W. R Weekly Reporter [1852—1891] all the Courts. Y. Younge Younge [1830—1832] Exchequer ; Equity. Y. & C Younge & Collyer [1834—1842] Exchequer ; Equity. Y. & C. N. C. C Younge & Collyer's New Chancery Cases [1841—1843] Knight-Bruce, V.-C. Y. & J Younge & Jervis [1826—1830] Exchequer. The mode of citation of the current series of the Law Reports, commencing January, 1891, is as follows : — [1891] 1 Ch. ; [1891] 2 Ch. ; [1891] 3 Ch. [1891] 1Q.B.; [1891] 2 Q. B. [1891] P. [1891] A. C. ( xxiii ) TABLE OF STATUTES CITED. A.D. 1367. 51 Hen. 3, stat. 4 (Statute of Marlebridge), 274. 52 Hen. 3, c. 4 „ 442. 1381. 5 Rich. 2, stat. 1, c. S (Forcible entry), 443. 1541. 32 Hen. 8, c. 34 (Conditions, &c. in leases), 297. 1547. 1 Ed. 6, c. 1 (Administration of the Sacrament), 156. 1555. 2 & 3 P. & M. c. 7 (Market overt), 452. 1558. 1 Eliz. c. 2 (Act of Uniformity), 156. 1571. 13 Eliz. c. 5 (Fraud on creditors), 286. 1585. 27 Eliz. c. 4 (Fraudulent conveyances), 289. 1589. 31 Eliz. c. 6 (Simony), 159. c. 12 (Sale in market overt), 452. 1602. 43 Eliz. c. 4 (Charities), 289. 1605. 3 Jac. 1, c. 21 (Christianity), 156. 1619. 21 Jac. 1, e. 16 (Statute of Limitations), 316. 1677. 29 Car. 2, c. 3 (Statute of Frauds), 79—109, 429. c. 7 (Lord's Day Act), 160. 1690. 2 W. & M. sess. 1, c. 5, s. 3 (Distress for rent), 270. s. 4 „ 275. 1696. 8 & 9 Wm. 3, c. 11, s. 8 „ 340. 1697. 9 & 10 "Wm. 3, c. 30 (Christianity), 156. 1698. 10 & 11 Wm. 3, c. 17 (Lottery Act), 168. 1705. 3 & 4 Anne, c. 9 (Assignment of promissory notes), 294. 1706. 4 & 5 Anne, c. 3 (Ambassadors), 318. 1707. 6 Anne, c. 72 (Presumption of death), 528. 1708. 7 Anne, c. 12, s. 3 (Distress), 272. 1709. 8 Anne, c. 14, ss. 6, 7 (Taxation), 275. 1730. 4 Geo. 2, c. 28, s. 1 (Tenants holding over), 83. s. 5 „ 271. 1737. 11 Geo. 2, c. 19, ss. 8, 9 (Landlord and tenant), 271. s. 18 „ 83. s. 19 „ 275, 441. 1743. 17 Geo. 2, c. 38, s. 8 (Illegal distress), 441. 1765. 6 Geo. 3, c. 53 (Oaths), 158. 1771. 12 Geo. 3, c. 73, s. 35 (Metropolitan buildings), 417. xxiv TABLE OF STATUTES CITED. A.D. 1773. 14 Geo. 3, c. 48 (Life insurance), 201. c. 78 (Accidental fire), 417. s. 83 ,, 206. 1781. 21 Geo. 3, c. 49 (Sunday observance), 162. 1796. 36 Geo. 3, c. 52, s. 7 (repealed by 35 & 36 Vict. c. 63), 284. 1802. 42 Geo. 3, c. 119, s. 2 (Lottery Act), 168. 1803. 43 Geo. 3, c. 59 (Bridges, county), 386. 1814. 54 Geo. 3, c. 56 (Sculpture), 438. 1815. 55 Geo. 3, c. 194 (Apothecaries Act), 127, 475. 1816. 56 Geo. 3, c. 50 (Distress), 272. 1824. 4 Geo. 4, c. 83 (Factors Acts), 55. 1826. 6 Geo. 4, c. 94 ,, 55. 1827. 7 & 8 Geo. 4, c. 18 (Spring guns prohibition), 382. c. 31 (Remedies against hundred) , 389. 1829. 9 Geo. 4, c. 14, s. 1 (Lord Tenterden's Act), 316, 321. s. 5 ,, 16, 429. s. 7 ,, 99, 104. c. 69 (Criminal law), 539. c. 94 (Simony), 159. 1830. 11 Geo. 4 & 1 ¥m. 4, c. 68 (Carriers Act), 240, 244. 1831. 1 & 2 Wm. 4, c. 37 (Truck Act), 137. c. 41 (Unlawful distress), 480. 1832. 2 & 3 "Wm. 4, c. 71 (Prescription), 351. c. 72 (Remedies against hundred), 389. 1833. 3 & 4 Wm. 4, c. 15, s. 1 (Copyright), 435, 438. c. 27 (Limitation of Actions), 320. c. 42 ,, 320, 351. c. 42 (Interest), 338. c. 98, s. 6 (Tender of Bank of England notes), 306. 1835. 5 & 6 "Wm. 4, c. 50, s. 70 (Highways, nuisance), 382, 388, 513, 515. 1836. 6 & 7 Wm. 4, c. 71 (Recovery of tithe rentcharge), 129. 1842. 5 & 6 Vict. c. 39 (Factors Act), 55. c. 45, ss. 2, 20, 22 (Copyright Act), 435—438. 1843. 6 & 7 Vict. c. 40, ss. 18, 19 (Criminal law), 273. c. 73, s. 37 (Solicitors' Costs), 479. 1845. 8 & 9 Vict. c. 20, s. 68 (Railway Clauses Act), 371. c. 76, s. 4 (Legacy duty), 284. c. 109, ss. 3, 18 (Gaming Act), 164. 1846. 9 & 10 Vict. c. 48 (Lottery), 169. c. 93 (Lord Campbell's Act), 351, 493. s. 1 ,, 471. 1847. 10 & 11 Vict. c. 15, s. 14 (Gasworks Clauses Act), 273. 1848. 11 & 12 Vict. c. 44 (Actions against magistrates), 477. c. 63 (Public Health Act), 479. 1851. 14 & 15 Vict. c. 25, s. 2 (Fixtures), 272. c. 94 (Mining), 279. 1853. 16 & 17 Vict. c. 119 (Betting Houses Act), 167. TABLE OF STATUTES CITED. xxv A.D. 1854. 17 & 18 Vict. c. 31 (Railway and Canal Traffic Act), 240, 246, 250. c. 36 (Bill of Sale), 288. c. 38, s. 4 (Gaming Act), 169. c. 104 (Merchant Snipping Act), 215. s. 388 ,, 376. c. 125 (Common Law Procedure Act), 143. s. 20 „ 158. 1855. 18 & 19 Vict. c. 43 (Infants' Settlement Act), 16. c. Ill, s. 1 (Bill of Lading Act), 269. c. 120, s. 116 (Metropolis Local Management Acts), 387. 1856. 19 & 20 Vict. c. 97, s. 3 (Mercantile Law Amendment Act), 89. s. 5 ,, 311. s. 10 „ 319. s. 13 ,, 316. s. 14 ,, 321. 1857. 20 & 21 Vict. c. 85 (Divorce and Matrimonial Causes Act), 29. 1858. 21 & 22 Vict. cc. 48, 49 (Oaths), 158. c. 90 (Medical Act), 127. 1859. 22 & 23 Vict. c. 35, s. 1 (Lord St. Leonards' Act), 291. ss. 4, 6 „ 207. s. 29 „ 319. c. 59 (Railway Companies Arbitration Act), 146. 1860. 23 & 24 Vict. c. 38, s. 6 (Law of property), 291. c. 127, s. 28 (Solicitors), 163. 1861. 24 & 25 Vict. c. 66 (Declarations), 158. c. 96, s. 100 (Larceny), 451. s. 113 „ 478. c. 100, s. 31 (Offence against the person), 382, 409. 1862. 25 & 26 Vict. c. 68 (Copyright), 436, 439. c. 89, s. 4 (Companies Act), 18, 23, 64, 485. 1863. 26 & 27 Vict. c. 41 (Innkeepers Act), 233. 1864. 27 & 28 Vict. c. 25 (Naval prize), 215. c. 95, ss. 1, 2 (Damages, death), 494. 1865. 28 & 29 Vict. c. 60, s. 1 (Ferocious dogs), 359. c. 83 (Locomotive Act), 416. c. 86 (Bovill's Act), 64. c. 90, s. 12 (Fire, metropolis), 208. 1866. 29 & 30 Vict. c. 69 (Dangerous goods), 239. 1867. 30 & 31 Vict. c. 23, s. 7 (Marine insurance), 209. c. 35, s. 9 (Evidence), 451. c. 131, s. 37 (Companies Act), 23, 485. c. 144 (Life insurance), 202, 294. 1868. 31 & 32 Vict. c. 86 (Marine insurance), 294. c. 119, s. 14 (Railways Act, 1868), 240. s. 25 ,, 495. c. 121 (Pharmacy Act), 127. 1869. 32 & 33 Vict. c. 68, 8. 2 (Evidence), 329. xxvi TABLE OF STATUTES CITED. A.D. 1869. 32 & 33 Vict. c. 68, s. 4 (Evidence), 158. 1870. 33 & 34 Vict. c. 10, s. 4 (Coinage), 306. c. 28, s. 15 (Solicitors' Remuneration Act) , 479. c. 35 (Apportionment Act), 443. c. 75 (Elementary Education Act), 26. c. 93 (Married Women's Property Act), 31. s. 10 „ 201. 1871. 34 & 35 Vict. c. 31 (Trade Unions Act), 150. c. 79 (Lodgers' Goods Protection Act), 272. 1872. 35 & 36 Vict. c. 50, s. 3 (Distress, railway), 273. c. 93 (Pawnbrokers Act), 229, 452. c. 94, s. 17 (Licensing Act), 168. 1873. 36 & 37 Vict. c. 38, s. 3 (Vagrant Act Amendment Act), 167, 169. c. 66, s. 25 (Judicature Act), 76, 294, 312. 1874. 37 & 38 Vict. c. 15 (Gaming), 167, 168. c. 50 (Married Women's Property Act), 31. c. 51, s. 4 (Chain Cables and Anchors Act), 194. c. 57 (Real Property Limitation Act), 320. c. 62 (Infants' Relief Act), 15, 329. c. 78, s. 2 (Vendors and Purchasers Act), 300. 1875. 38 & 39 Vict. c. 55, s. 96 (Public Health Act), 409. s. 150 ,, 515. s. 174 „ 24. s. 264 „ 387, 480. s. 308 ,, 388. c. 90 (Employers and Workmen Act), 392. c. 91 (Trade Marks Act), 435. 1877. 40 & 41 Vict. c. 39 (Factors Act), 55. 1878. 41 & 42 Vict. c. 31 (Bills of Sale Act), 288. c. 33 (Dentists Act), 127. c. 38 (Innkeepers Act), 235. 1880. 43 & 44 Vict. c. 42 (Employers' Liability Act), 391, 479. 1881. 44 & 45 Vict. c. 41, ss. 10, 11, 12 (Conveyancing Act), 297. s. 14 „ 207, 292. s. 18 ,, 75. s. 27 „ 296. c. 60 (Newspaper Libel Act), 436, 460. c. 62 (Veterinary Surgeons Act), 127. 1882. 45 & 46 Vict. c. 40 (Copyright (Musical) Act), 436. c. 43 (Bills of Sale Act), 288. c. 56 (Electric Lighting Act), 416. c. 61, s. 3 (Bills of Exchange Act), 112. s. 14 „ 113. ss. 27—30 „ 120. s. 36 „ H3. ss. 47—50 „ 115. ss. 63, 64 „ 315. TABLE OF STATUTES CITED. xxvii A.D. 1882. 45 & 46 Vict. c. 61, ss. 7G— 82 (Bills of Exchange Act), 112. c. 75 (Married Women's Property Act), 28, 31, 32, 36, 319. s. 11 „ 201. 1883. 46 & 47 Vict. c. 52, s. 47 (Bankruptcy Act), 287, 288. c. 57, s. 113 (Patents, Designs, and Trade Marks Act), 435, 438. c. 61, s. 33 (Agricultural Holdings Act), 81. s. 34 ,, 276. s. 45 ,, 271, 274. 1884. 47 & 48 Vict. c. 41 (Building Societies Act), 14G. c. 52 (Turnpike Act), 516. c. 61, s. 18 (Judicature Act), 540. 1885. 48 & 49 Vict. c. 69 (Criminal Law Amendment Act), 484. c. 72 (Housing of the "Working Classes Act), 198. 1886. 49 & 50 Vict. c. 33 (International Copyright Act), 436. c. 38 (Riot (Damages) Act), 389. c. 48 (Medical Act), 127. 1887. 50 & 51 Vict. c. 19 (Quarry (Fencing) Act), 382. c. 28 (Merchandise Marks Act), 193, 436. c. 46 (Truck Act), 137. 1888. 51 Vict. c. 8, s. 19 (Customs and Inland Revenue Acts), 202. 51 k 52 Vict. c. 21 (Law of Distress Amendment Act), 274, 275, 441. c. 43, s. 160 (County Court Act), 276. c. 59, s. 8 (Trustee Act), 320. c. 64 (Law of Libel Amendment Act), 465. 1889. 52 & 53 Vict. c. 45 (Factors Act), 55— 5S, 230, 231. c. 49 (Arbitration Act), 143. 1890. 53 Vict, c. 5 (Lunacy Act), 20. 53 & 54 Vict. c. 39 (Partnership Act), 63—71. s. 18 „ 311. c. 71, 8. 3 (Bankruptcy Act), 303. 1891. 54 Vict. c. 8, s. 10 (Tithe Act), 129. 54 & 55 Vict. c. 39, ss. 52, 53 (Stamp Act), 137. c. 51 (Slander of Women Act), 458. 1892. 55 Vict. c. 4 (Loans to Infants), 16, 169. c. 9 (Gaming Act), 166. 55 & 56 Vict. c. 13 (Conveyancing Act), 292. c. 23 (The Foreign Marriage Act), 330. 1893. 56 & 57 Vict. c. 21 (Voluntary Conveyances Act), 2S9. c. 56 (Fertilisers and Feeding Stuffs Act), 193. c. 63 (Married Women's Property Act), 28, 32, 36. c. 71, s. 1 (Sale of Goods Act), 20, 120. s. 2 „ 11, 20. 10 92, 101, 104. 122, 172. 173. 183. TABLE OF STATUTES CITED. 1893. 5G & 57 Vict. c. 71, s. 11 (Sale of Goods Act), 196. s. 12 ss. 13—15 s. 14 (1) ss. 16—20 ss. 22, 24 s. 25 s. 31 s. 41 ss. 44—48 ss. 50—54 s. 53 s. 55 s. 58 s. 62 190. 193. 191. 260—263. 451. 57. 331. 102. 265—269. 334. 186. 190, 193. 4, 99. 94, 99, 184. ( XXIX ) LIST OF CASES CITED. A. PAGE A. v. B 470 Aas v. Benham 71 Abbott v. Macfie 379 • v. Wolsey 101 Abd-ul-Messib v. Farra .... 523 Abernethy v. Hutchinson .... 437 Abouloff v. Oppenheimer .... 433, 521, 532 Abraham v. Reynolds 396 Abrahams v. Deakin 409 Abrath v. N. E. Ry. Co. . .483, 485 Acebal v. Levy 90 Ackroyd v. Smithies 304 A'Court v. Cross 317 Acraman r. Morrice 258, 261 Acton v. Blundell 350 Adam v. Newbigging 433 Adams v. Bankart 67 v. Clutterbuck 522 v. L. & T. Ry. Co. . . 370, 376 ■ «\ Nightingale 395 Adamson v. Jarvis 489 African Merchants Co. v. British Marine Insurance Co 214 Ager v. P. & O. Steam Navi- gation Co , 437 Agra & Masterman's Bank, In re 7 Agrell v. L. & N. W. Ry. Co. 248 Aiken v. Short 129 Ainslie, In re 95 Airey v. Borham 70 Aitchison v. Lohre 215 Akerblom v. Price 216 Alabaster v. Harness 136 Albert, Prince v. Strange .... 435 Alcock v. Smith 113, 517 Alderson v. Maddison. . 108, 433, 534 ■ v. Peel 280 Aldous v. Cornwcll 313 PAGE Aldred's Case 356 Aldred v. Constable 455 Aldridge v. Aldridge 119 V. Johnson 260, 262 Alexander v. Gardner 263 v. Jenkins 458 Alford v. Vickery 82 Allbutt v. Medical Education Council 127 Allen v. Hearn 164 v. Jackson 153 v. L. & S. W. Ry. Co. . . 409 v. New Gas Co 391 v. Pink 188 v. Taylor 354 Alliance Bank of Simla v. Carey 320, 518 Allkins v. Jupe 213 Allport V. Nutt 168 Allsop v. Allsop 492 v.Joy 531 v. Wheatcroft 148 Alresford v. Scott 515 Alsace Lorraine, The 219 Alston, In re 525 Alton v. Harrison 288 v. Midland Ry. Co 474 Ambler v. Woodbridge, Doed. 291 American Concentrated Must Co., v. Hendrey 448 Amesbury Guardians v. Wilts. 513 Amicable Society v. Bolland. . 204 Amor v. Fearon 325 Anderson v. Commercial Union Assurance Co. . . 206 ■ v. Edie 201 v. Fitzgerald 203 v. Gorrie 462 • v. Hay 30 ■ v. Ocean Steamship Co 218 v. Oppenheimer . . 199 Andrews v. Aakey 427 V. Garstin 324 LIST OF CASES CITED. PAGE Andros, In re, Andros v. Andros 523 Anglo - Egyptian Navigation Co. v. Rennie 105 Angus v. Clifford 195, 432 ■ v. Dalton 403, 419 v. McLachlan 235 Aunett, Re 156 Annie, The 216 Anon 292, 470 Apollo, The, Little v. Port Talbot Co 407 Apothecaries Co. v. Jones .... 475 Appleby v. Franklin 472 v.Myers ..170,172,221 v. Percy 359 Archer's Case 46 Argoll v. Cheney 315 Arkwright v. Gell 350 • v. Newbold 430 Armistead v. Wilde 234 Armory v. Delarairie 448 Armstrong v. Cahill 310 . v. L. & Y. Ry. Co. . . 377 v. Wilkinson, Doe d. 82 Arnold v. Cheque Bank 535 v. Poole 22 v. Woodhams 30 Arthur v. Barton 40 v. Wynne 171 Asfar v. Blundell 210 Ashbury Railway Waggon Co. v. Riche 26, 140 Ashby v.Day 312,541 v. White 347 Ashcroft v. Morrin 90 Ashdown v. Ingamells 339 Ashenden v. L. B. & S. C. Ry. Co 241 Ashworth v. Stanwix 391 Aslin v. Summersett, Doe d. . . 81 Aspden v. Seddon 421 Aspinall v. Pickford 162 Aste v . Stumore 176 Astley v. Weldon 341 Atchinson v. Baker 327 Atherford v. Beard 164 Atkin v. Acton 323 Atkinson v. Bell 259 v. Bradford Third Equitable Build- ing Society .... 319 Atkyns v. Kinnier 343 Attack v. Bramwell 441 Atterbury v. Fairmanner .... 186 Att.-Gen. v. Biphosphated Guano Co. . . 512 v. Bradlaugh .... 158 v. Conduit Colliery Co 418 PAGE Att.-Gen. v. Gaskill 25 ■ v. G. E. Ry. Co. . . 26, 140 v. Horner 151 v. Kingston 424 v . Manchester Cor- poration ..416,425 v. Shrewsbury Bridge Co. . 424 ■ v. Tomline 361 Attwood v. Small 433 Atwood, Re 156 — v. Sellar 218 August, The 521 Austen v. Craven 260 Austerberry v. Oldham Cor- poration 301, 515 Austin v. Dowling 482 v. G. W. Ry. Co 251 Avery v. Bowden 331 r. Langford 147 Avon, The 490 Aylwin v. Evans 447 Aynsley v. Glover 352 B. Babbage v. Coulburn 145 Babcock v. Lawson 451 Back v. Holmes 514 Backhouse v. Charlton 09 •- v.Hall 311 Bacon, Ex parte 532 Baddeley v. Granville 394 Badeley v. Consolidated Bank 66 Badische Anilin Eabrik v. Schott 149 Bagge v. Whitehead 448 Bagnall v. Charlton 46 Bagueley v. Hawley 189 Bailey v. Jamieson 513 v. Macaulay 68 v. Sweeting 90 Baillie v. Kell 323 Baily v. De Crespigny 172 Bainbridge v. Eirmstone .... 119 • v. Pickering .... 13 Baines v. Geary , 148 Baird's Case 67 Baird v. Williamson 361 Baker v. Carrick 459 v. Cartwright 328 v. Dening 91 v. Hedgcock 148 v. Jones, Doe d. ...... 291 v. White 153 Baldey v. Parker 98 Baldry v. Bates 40, 45 LIST OF CASES CITED. PAGE Baldwin v. Casella 359 v. Cole 454 v. L. C. & D. Ry. Co. 339 Balfour v. Baird 380 Balkis Consolidated Co. v. Tomkiusou 533, 538 Ball, Ex parte 468 v. Warwick 135 Ballard v. Tomlinson .... 349, 357 Bally v. Wells 298 Bamfield v. Massey 427 Bamford, In re 288 v. Turnley 423 Bank of New South Wales v. Ouston 409 Banner, Ex parte 119, 263 Bannei-man v. White 195 Barber v. Houston 435 v. Mackrell 113, 312 v. Penley 367 r. Pott 131 Barclay v. Pearson 168 Barham v. Ipswich Docks Com- missioners 3S9 Baring v. Corrie 54 Barker v. Barker 281 v. Furlong 449,456 ■ v. Hodgson 170 Barlow v. Teal 81 Bamed' s Banking Co., In re. . 27 Barnes v. Loach 353 v . London, Edinburgh, and Glasgow Assur- ance Co 201 -v. Toye 13 v. Ward 373, 382 Barnett v. Wood 43 Barratt v. Burden 168 Barrington v. Hamshaw .... 442 Barrow, Ex parte 120, 266 v. Dyster 49, 179 V.Isaacs 129,292 Mutual Ship Insurance Co. v. Ashbumer 541 Barry v. Crosskey 430, 474 Barton v. Capewell Co 341 v. Fitzgerald 182 Barwick v. English Joint Stock Bank 45 Basebe v. Matthews 484 Bass v. Gregory 355 Bassett v. Collis 180 Batchelor v. Fortescue 384 Bateman v. Pinder 318 . v. Ross 29 ■ r. Service 522 Bates v. Hewitt 209 v. Hudson 221 Bathurst v. Maepherson 387 PAGE Batthyany v. Walford 520 Battishill v. Reed 424 Batty v. Marriott 164 Bawden v. London, Edinburgh, and Glasgow Assurance Co. 42, 54, 203 Baxendale v . Bennett . . . .112, 535 • v. G. E. Ry. Co. . . 240 v. Hart 246 Baxter v. Langley 162 v. Nurse 326 v. Portsmouth 18 Bayley v. M. S. & L. Ry. Co. 409 Bayliife v. Butterworth 180 Baynes v. Smith 270 Beachey v. Brown 328 Beak v. Beak 283 Beal v. South Devon Ry. Co. . 242 Beale v. Mouls 08 Bealey v. Shaw 350 Beasley v. Roney 30 Beattie v. Ebury 59 Beatty v. Gillbanks 366 Beaumont, In re 523 V. Brengeri 101 v. Reeve 125 Beavan v. McDonnell 19 Becher v. G. E. Ry. Co. . .250, 474 Beck v. Dyson 359 v. Pierce 38, 319 v. Rebow 278 Beckett v. Addyman 311 v. Manchester Corpora- tion 395 v. Ramsdale 530 v. Tasker 31 v. Tower Assets Co. . . 231 Beddall v. Maitland 443 Bedford v. McKowl 427 Bedingfield v. Onslow 424 Beer v. Foakes 304 Beeston v. Beeston 166 v. Collyer 96 Behn v. Burness 194, 435 Beldon v. Campbell 40 Belfield r. Bourne 144 Bell v. Bassett 119, 159 v. G. N. Ry. Co 365 v. Stocker 38 Bellairs v. Tucker 431 Bellamy v. Davey 259 v. Debenham 8 v. Wells 367 Bellingham v. Alsop 78 Bendelow v. Wortley Union. . 416, 425 Bengal, Bank of v. Fagan. ... Ill Benjamin v. Store 422 Benlarisr, The 217 xxsu LIST OF CASES CITED. PAGE Bennett v. Alcott 426 v. Mellor 236 Bensley v. Bignold 137 Bent v. Bull 50 Bentinck v. Loudon Joint Stock Bank 112 Bentley v. Griffin 36 v. Vilniont 451 Bentson v. Taylor 196 Benwell v. Inns 148 Bergheim v. G. E. By. Co. . . 247 Berkeley Peerage Case 500 Berndtson v. Strang 266 Bernina, The 378 Bernstein v. Baxendale 245 Berolles v. Ramsay 12 Berridge v. Berridge 312 Berringer v. G. E. By. Co. . . 474 Berry v. Da Costa 330 Berthon v . Loughman 210 Berwick v. Oswald 172 Bessela v. Stem 329 Best v. Osborne 186 Bethell, In re 519 . v. Clark 266 Betjemann v. Betjemann .... 435 Betterbee v. Davis 306 Betts v. Gibbins 489 Bevan v. Carr 97 Bevans v. Bees 306 Beverley v. Lincoln Gas Co. . . 262 Bewley v. Atkinson 508 Bickerdike v. Bollman 114 Bickerton v. Burrell 59 Bidder v. Bridges 304 Biddle v. Bond 227 Biddlecombe v. Bond 182 Bigge v. Parkinson 191 Bilbie v. Lumley 131 Bilborough v. Holmes ...... 69 Bill v. Bament 89, 101 Billing v. Coppock 479 Bindley v. Mulloney 154 Binge v. Gardiner 379 Binney v. Mutrie 71 Birch v. Liverpool 96 v. Stephenson 343 Bird v. Boulter 92 v. Brown 125, 265, 267 v. Elwes 199 v. Gammon 85 v. G. N. Ry. Co 370 v. Holbrook 382 v. Jones 486 Birkett v. Whitehaven Junction By. Co 399 Birkley v. Presgrave 218 Birkmyr v. Darnell 83 Birmingham v. Foster 151 PAGE Birmingham Banking Co. v. Boss 354 ■ Corporation v. Allen 421 Land Co., In re 300 Bishop v. Balkis Consolidated Co 541 v. Bedford Charity ... 413 v. Shillito 261 Bissett v. Caldwell 270 Black v. Christchurch Finance Co 403 Blackborn v . Edsreley 280 Blackburn v. Haslam . .44, 54, 210 v. Mason 53 v. Vigors 44, 210 — Building Society v. Cunliffe Brooks 140 Blackett v. Royal Exchange Assurance Co 176 Blackmore v. Mile End Vestry 386, 513 Blackwood v. Reg 524 Blades v. Arundale 272 v. Free 38 Blair v. Deakin 350 Blake v. Albion Life Assurance Society 45 v. Midland Ry. Co 494 v. Thirst 403 Blakemore v. Brist. & Ex. Ry. Co 228, 474 Blankensee v. L. & N. W. Ry. Co 245 Bleakley v. Smith 90 Blenkinsop v. Clayton 103 Bligh v. Brent 95 Blount v. Burrow 283 Blower v. G. W. Ry. Co 237 Bloxam v. Favre 523 Bloxsome v. Williams 161 Blyth v. Birmingham Water- works Co 371 Blyth v. Fladgate 67 Boaler v. Holder 484 v. Reg 461 Boast v. Firth 172 Boden v. Hensby 163 Bolch v. Smith 384 Boldero v. Lond. & West. Loan Co 288 Bolton v. Lambert 8, 43 v. L. & T. Ry. Co 268 • v. Madden 134 v. O'Brien 461 v. Salmon 312 Bond v. Plumb 168 Bonnard v. Perryman 460 Bonomi v. Backhouse 419 LIST OF CASES CITED. PAGE Booth v. Arnold 458 Borlick v. Head 396 Borradaile v. Hunter 203 Borries v. Imperial Ottoman Bank 53 Borrowinan v. Free 262 Bostock v. Jardine 122 Boston Deep Sea Co. v. An- seU 325 ■ Ice Co. r. Potter 130 Botterill v. Whitehead , 465 Boughton v. Bought on 163 Boulton v. Jones 130 v. Prentice 37 Bound v. Lawrence 393 Bourke v. Davis 510 Bowden r. Henderson 526 Bowen v. Anderson 82, 412 v. Hall 491 Bower v. Peate 403 Bowes, In re, Strathmore v. Vane 162 ■ v. Shand 178 Bowker v. Evans 351 Bowlby v. Bell 99 Bowman v. Nichol 314 Bows v. Fen wick 168 Box v. Jubb 360 Boxsius v. Goblet 459 Boyce v. Green 95 Boydell v. Drummond 92, 106 Boyse, In re 112 Bracegirdle v. Heald 96 Bradburn v. Foley 181 — v. G. TV. By. Co. . . 495 Bradbury v. Cooper 461 Bradford v. Young 523 Corporation v. Pickles 350 Bradlaugh v. De Bin 517 v. Xewdegate .... 136 Bradley v. Holdsworth 95, 99 Bradshaw v. Beard 38 v. L. & Y. By. Co... 495 Brady v. Todd 40 Brail, In re 287 Brannigan v. Bobinson 393 Brass v. Maitland 238 Braunstein v. Lewis 31 Brayshaw v. Eaton 13 Brett v. Clowser 435 Brettel v. Williams 67 Brewster v. Kitchin 172 Brice v. Bannister 293 Bridger p. Savage 166 Bridges v. North London By. Co 370 Brierly v. Kendall 456 Brigga v. Si wry 272 Brindley r. Cilgwyn Slate Co.. 266 S. — C. PAGE Brine r. G. TV. By. Co 415 Bringloe v. Tlorrice 228 Brinsmead v. Harrison 490 Brisbane v. Dacres 131 Bristol Aerated Bread Co. v. Maggs 4,8 Britain v. Bossiter 92, 96, 108 British Columbia Saw Mills Co. v. Nettleship 336 Empire Shipping Co. v. Somes 162 Insulated Wire Co. v. Prescot Urban Dis- trict Council 24 Linen Co. #. Drummond 518 South Africa Co. v. Mozambique Co 517 Waggon Co. v. Lea . . 296 Britton v. Cook 166 Broad v. Ham 483 Broadwater v. Bolt 232 Broadwood v. Granara 235 Brock v. Copeland 359 Broder v. Saillard 423 Bromage v. Prosser 459 Bromley v. Tains 392 Brook v. Hook 43 v. Bawl 460 Brooker v. Scott 12 Brooks v. Haigh 119 v. Hassall 40 v. Warwick 483 Broughton v. Jackson 487 Brown, In re 132 v. Brine 135 v. Butterley Coal Co... 392 v. Glenn 442,445 v. G. W. By. Co 375 ■ — v. Harper 15 v. Hawkes 4S3 v. Hodgson 124 v. Inskip 300 v. Jodrell 19 v. Kendall 369 v , M. S. & L. By. Co.. 241 v. Muller 334 v. Bobbins 418 v. Stapyleton 218 v. Storey 75 Browne v. Hare 263 Browning v. Beane 20 Brownlow v. Metropolitan Board 416 Bruce v. Everson 162 Brummell v. Maepherson .... 290 Brunsden v. Humphreys. .420, 538 Bryanl y.Le Banquedu Peuple 40 v. Lefever 355 v. Bichardson 12 C XXXIV LIST OF CASES CITED. PAGE Brymbo Water Co. v. Lesters Lime Co 350 Bryson v. Russell 480 Bubb v. Yelverton 167 Buck v. Robson 296 Buckingham v. Surrey Canal Co 326 Buckland v. Butterfield 277 ■ v. Johnson 490 Buckmaster v. G-. E. By. Co.. 255 Budd v. Fairmaner 185 Budgett v. Binnington 171 Bufe v. Turner 206 Bulkeley v. Schutz 522 Bull v. Parker 120 ■ v. Eobison 263 Bullen v. Sharp 66 Bullers V. Dickinson 353 Bulmer v. Buhner 495 Bunch v. G. W. By. Co. " 247 Bunker v. M. By. Co 394 Bunn v. Guy 147 ■ v. Markham 283 Bunting v. Hicks 350 Burchell v. Hickisson 383 Burges v. Wickham 215 Burgess v. Clements 235 ■ v. Eve 310 ■ v. Gray 402 ■ v. G. W. By. Co. ... 385 ■ v. Northwich Local Board 387 Burgh v. Legge 115 Burghart v. Hall 12 Burke v. S. E. By. Co 399 Burlinson v. Hall 295 Burn v. Boulton 316 v. Miller 222 Burnley Equitable Co-opera- tive Society v. Casson 26 Burnand v. Rodocanachi .... 200 Burnard v. Haggis 17 Burn by v. Bollett 192 Buron v. Denman 490 Burroughes v. Bayne 454 Burton v. Salford Corporation. 515 Bush v. Steinman 403 Busk v. Davis 260 Buszard v. Capel 275 Butcher v. L. & S. W. Ry. Co. 247 Butler v. Butler 33, 284, 530 Butterfield v, Forrester 373 Butter worth, In re 287 Button v. Thompson 326 Buxton v. Baughan 227 v. N. E. Ry. Co. . . 372, 399 Byrne v. Boadle 369 v. Muzio 308 v. Van Tienhoven .... 5 PAGE Bywater v. Richardson 186 By well Castle, The 376 C. Cable v. Marks 437 Cachapool, The 37G CadavaH-. Collins 131 Cahill v. Cahill 29 ■ v. Fitzgibbon 482 v. L. & N. W. By. Co. 248 Caird v. Moss 530 v. Sime 437 Calcutta Co. v. De Mattos 263 Caledonian Insurance Co. v. Giimour 144 Calliope, The 231 Callo v . Brouncker 323 Calton v. Bragg 338 Calye's Case 233 Cambefort v. Chapman 530 Cambridge v. Anderton 211 Cameron v. Nystrom 390, 408 Caminada v. flulton 168 Campbell v. Rickards 210 v. Rothwell 311 Canham v. Barry 171 Cann v. Willson 433 Cannam v. Farmer 30 Caiman v. Bryce 141 Canning v. Farquhar 204 Capital and Counties Bank v. Henty 457 Capital Fire Insurance Asso- ciation, Re 163 Capper, Ex parte 343 r. Wallace 182 Caproni v. Alberti 438 Carington v. Wycombe Ry. Co 140 Carlill r. Carbolic Smoke Ball Co 7, 167, 202, 430 Carlisle, In re 144 Carlton v. Bowcock 541 Carpue v. L. B. & S. C. Ry. Co 370 Carr v. L. & N. W. Ry. Co. . . 534 Carstairs v. Taylor 360 Carter, In re 163 v. Bernard 450 v. Boehm 208 v. Drysdale 395 v . Flower 115 v. Hobbs 237 v. Silber 16 v. Touissant 101 v. Whalley 64, 69 v. White 312 LIST OF CASES CITED. PAGE Case v. L. & S. W. Ry. Co. . . 248 Cashill v. Wright 235 Cassaboglou v. Gibb 339 Castellain v. Preston 206 Castle v. Playford 263 «>. Sworder 101,103 Castlegate Steamship Co. v. Dempsey 171 Cate v. Devon Newspaper Co. 439 Cater v. Lewisham 416 Cato v. Thompson 176 Caton v. Caton . .' 90 Catton v. Bennett 341 Caunt v. Thompson 115 Cave v. Cave 278 v. Hastings 108 Chadburn v. Moore 41 Chalmers v. Wingfield, In re Marrett 523 Chamberlain v. Boyd 460, 492 v. Williamson . . 329 v. Young 112 Chambers v. Bernasconi 507 v. Donaldson 450 . v. Miller 129 Chanter v. Hopkins 193 Chapleo v. Brunswick Building Society 45 Chaplin v. Rogers 101 Chapman v. Auckland Union.. 480 v. Biggs 31 . v. Day 421 v. G. W. By. Co. . . 249 v. Eothwell 385 . v. Speller 190 v. Withers 186 Chappell v. Boosey 438 Chappie v. Cooper 12 Charles v. Taylor 390 Charleston v. London Tram- ways Co 488 Charman v. S. E. Ry. Co 371 Chartered Bank of India v. Netherlands India Steam Navigation Co 521 Chasemore v. Richards . . . 347, 349 Chastey v. Ackland 355 Chatenay v. Brazilian Tele- graph Co 518 Chatterton v. Secretary of State, &c 462 Chauntler v. Robinson 419 Cheerful, The 217 Cheesman v . Price 69 Cheetham v . Hampson 413 Cherry v. Colonial Bank of Australasia .... 59 v. Thompson 331 Chibnall v. Paul 423 PAGE Chichester v. Hill 451 Chilton v. Progress Printing Co 436 Chinery v. Viall 455,456 Chisholm v. Doulton 409 Chowne v. Baylis 470 Christee v. Griggs 368 Christie v. Davey 423 v. Northern Counties Building Society 146 Church v. Imperial Gas Co. . . 23 Churchward v. Chambers .... 323 City Bank v. Barrow 58 City of London Brewery Co. v. Tennant 355 City of Manchester, The 376 Clan Gordon, The 376 Clapham v. Draper 443 v. Langton 215 Claridge v. South Staffordshire Tramway Co 232 Clark v. Bulmer 105 v. Chambers 363, 380 v. Molyneux 464 Clarke v. Birley 309 ■ — v. Blything 495 v. Cobley 17 v. Cuckneld Union. ... 22 v. Eamshaw 232 v. Gaskarth 271 v. Gilbert 229 v. Millwall Dock Co. . . 271 v. Postan 482 v. Shee Ill v. Somerset Drainage Commissioners . . 350 ■ v. Spence 259, 264 v. Yorke 435,538 Clarkson v. Musgrave .... 395, 479 Clay v. Harrison 269 ■ v. Yates 104 Clayards v. Dethick 376 Clayton v. Blakey 80 Cleather v. Twisden 67 Cleaver v. Mutual Reserve Fund 201 Clegg v. Hands 301 Clement v. Cheeseman 284 Clements v. L. & N. W. Ry. Co. 14 • v. Norris 70 Clerk v. Clerk 78 Cleveland Rolling Mills v. Rhodes 332 Clifford v. Hunter 215 v. Laton 36 v. Watts 171 Clift v. Schwabo 203 Coates v. Railton 206, 267 v. Stephens 186 c2 xxxvi LIST OF CAS EH CITED. PAGE Coates v. Wilson 12 Cobb v. G. W. Ry. Co. . .368, 492 Cobbett v. Woodward 436 Cochrane v. Moore 279, 284 v. Rymill 456 v. Willis 130 Cock, Re , 266 Cocking v. Pratt 280 v. Ward 95 Cockle v. S. E. Ry. Co 370 Cocks v. Masterman 129 Coggs v. Bernard 119, 225 Cohen v. Foster 261, 263 v. Kittell 166 v. S. E. Ry. Co 243 Colchester v. Brook 375 Cole v. Gibson , 154 v. North Western Bank . 58 Colegrave v. Dios Santos .... 278 Collard v. Marshall 460 Collen v. Wright 58, 61 Collett v. Morrison 201 Collinge v. Hey wood 319 Collins v. Blantern 136 v. Bristol & Exeter Ry. Co 399 v. Castle 301 v. Locke 144, 149 Collis v. Laugher 352 v. Selden 385, 473 Colman v. Eastern Counties Ry.Co 139 Colonial Bank v. Cady 518, 535 v. Hepworth . . 533 v. Whinney. .99, 296 Colwell v. Reeves 449 Comfort v. Betts 295 Comite des Assureurs Maritime v. Standard Bank of South Africa 453 Compton v. Richards 354 Concha v. Concha 540 v. Murietta 521 Congleton v. Pattison 298 Conner v. Fitzgerald 509 Connors v. Justice 323 Conolan v. Leyland 31 Consolidated Co. v. Curtis . . 456 Cook, In re, Holmes, Ex parte 36 ■ , Vernall, Ex parte 37 v. Guerra 75 v. Lister 304 ■ v. North Metropolitan Tramways Co 392 Cooke's Trusts, In re 519 Cooke v. Birt 446 v. M. Ry. Co 255 v. Oxley 3 v Wildes 465 PAGE Coombs v. Wilkes 90, 1 OS Cooper, Ex parte 208 v. Chitty 457 v. Cooper 15 v. Crabtree 424 v. Parker 303 v. Straker 351 Coote v. Judd 436 Cope v. Rowlands 137, 213 Copper Miners Co. v. Fox .... 23 Coppock v. Bower 135 Corbett v. Jonas 354 v. Plowden 75 Corbishley's Trusts, In re ... . 527 Corby v. Hill 384 Corcoran v. East Surrey Iron- works Co 393 Corn v. Matthews 15 Cornell v. Hay 435 Cornfoot v. Fowke 44, 435 Cornish v. Accident Insurance Co 204 Cornwall v. Hawkins 15 v. Richardson 485 Corry v. G. W. Ry. Co 371 Cory v. Patton 210 ■ v. Thames Ironworks Co. 336 Coulson , Ex parte 32 Coulthart v. Clemen tson .... 311 Coupe Co. v. Maddick 230, 406 Courtauld v. Legh 352 Couturier v. Hastie 86, 171 Coventry v. Gladstone 267 v. G. E. Ry. Co. . . 537 Coverdale v. Charlton 511 Covington v. Roberts 218 Cowan v. Milbourne .... .... 155 Cowdy v. Thomas 188 Cowell v. Simpson 235 Cowley v. Newmarket Local Board 387, 513 Cowper v. Fletcher 78 Cox v. Andrews 168 v. Burbidge 360 v. G. W. Ry. Co 394 v. Hickman 63 v. Land and Water Jour- nal Co 439 v. Midland Counties Ry. Co 39 v. Willoughby 70 Coxhead v. Mullis 16, 329 Coxon v. G. W. Ry. Co 399 Crabtree v. Robinson 447 Craig v. Elliott 108 Craignish v. Hewitt 523 Crane v. London Dock Co. . . 452 Cranston, In re 287 Crawcour, Ex parte 231 LIST OF CASES CITED. PAGE Crawshay r. Collins 69 v. Eades 268 Crears v. Hunter 119 Crease v. Barrett 508 Crepps v. Durden 475 Cripp v. Tappin 68 Cripps v. Hartnoll 87 v. Judge 393 Crisp v. Anderson 450 v. Thomas 369 Croft v. Lumley 291 Crofts v. Waterhouse 369 Crompton v. Lea 361 Crook?'. Seaford Corporation.. 26 Cropper v. Smith 539 Crosby v. Leng 471 ■ v. Wadsworth 93 Crosier v. Tomkinson 271 Cross v. Cross 163 Crossley v. Magniac 49 Crosthwaite, Ex parte 447 Crouch v. Credit Fonder of England 112 v. L. & N. W. Ry. Co. 239 Crowhurst v. Amersham Burial Board 358 Croydon Gas Co. v. Dickinson 309 Crumbie v. Wallsend Local Board 420 Crump v. Lambert 423 Cuckson v. Stones 325 Cullen v. Queensbury 43 Cumber v. "Wane 302 Cumming v. Ince 21 Cundell v. Dawson 137 Cunningham, Ex parte 523 Currie v. Misa 121 Curtin v. G. S. & W. Ry. Co.. 375 Curtis v. Mills 359 v. Mundy 18 v. Williamson 50 Cusack v. Robinson 102 Cutler v. North London Ry. Co 242 Cutter v. Powell 220 1). Dalby v. India and London Life Insurance Co 200 Dale v. \ Lamilton 108 Dalton v. S. E. Ry. Co 494 Dalv r. Dublin, Wicklow, and Wexford Ry. Co 530 Danby v. Beardsley 4S2 I)am; /'. F\ irk wall 19 Daniel v. Metropolitan Ry. Co. 399 PAGE Darlington Banking Co., Ex parte 67 "Waggon Co. v. Har- ding 144 Darrell v. Tibbitts 205 Dartnall v. Howard 227 Dash wood v. Bulkeley 153 Davenport v. Reg 291 ■ v. Thomson ... .47, 51 Davey v. L. & S. "W. Ry. Co... 375 Davidson v. Cooper 315 v. Monkland Ry. Co. 380 v. "Wood 37 Davies, Ex parte 228, 537 v. Davies 149 v. Humphreys 312, 319 v. Lowen 148 v.Mann 374 v. National Marine In- surance Co 206 v. Powell 272 v. Snead 463 v. Solomon 492 v. Williams 427 Davis, In re, Evans v. Moore.. 320 v. Bomford 329 v. Comitti 437 v. Davis 66 v. Garrett 214 ■ ■ v. Howard 180 v. Leicester Corporation.. 300 v. Shepstone 462 • v. Starr 144 v. Stephenson 168 v. Treharne 421 Davison v. Donaldson 51 v. Duncan 462 Daw v . Herring 70 Dawes v. Peck 103 Dawkins v. Paulet 471 v. Rokeby 463, 471 Dawson v. Fitzgerald 145 Day v. Bather 237 v. McLea 303 Dean v. James 306 v. Peel 426 Deane v. Keate 230 Deare v. Soutten 37 Debenham v. Mellon 36 De Costa v. Jones 164 De Francesco v. Barnum .... 15 Defries, In re 530 Beggv. M. Ry. Co 396 De Grouchy v. Wills 519 Delacroix v. Thercnot 459 Delaney v. Wallis 451, 452 Delliasse, Ex parte 66 De Mattos v. Benjamin 1 66 De Mestrc v. West 289 LIST OF CASES CITED. PAGE Dendy v. Henderson 147 Denny v. Thwaites 477 Dent v. Dunn 306 Denton v. G. N. Ry. Co 251 Dering v. Winchel.^ea 312 Deny v. Peek 44, 430, 431 D'Etchegoyen v. D'Etche- g-oyen 524 Devaux v. Conolly 122 Dever, Ex parte 517 Devonshire v. O'Brien 151 Dew v. Metropolitan Ry. Co. . 42 Dibb v. Walker 291 Dickenson v. Valpy 64 Dickinson v. Dodds 5 v. Follett 186 Dicks v. Yates 436 Dickson v. G-. N. Ry. Co 241 v. Reuter's Telegraph Co 61 Didsbury v. Thomas, Doe d. .. 499 Die Elbinger v. Claye 48 Dingle v. Higgs 163 Dillon, In re 283 Ditcham v. Worrall 16, 329 Ditcbburn v. Goldsmith 164 Dixon, Ex parte 55 , In re 32 v. Baldwen 266 v. Birch 236 v. Clarke 306 v. Fawcus 489 ■ v. Hurrell 36 r. Metropolitan Board of Works 361 ■ v. Sadler 215 v. White 421 v. Yates 259 Dobree v. Napier 450 Dobson v. Hudson 222 Dodd v. Norris 427 Dodds v. Tuke 509 Doe v. Bevan 292 v. Bliss 291 v. Kightley 82 v. Manning 289 v. Needs 177 v. Summersett 78 v. Watkins 82 Donaldson v. Donaldson .... 280 Donellan v. Read 97 Donovan v. Laing . .396, 402, 408 Doorman v. Jenkins 226 Dormer v. Knight 182 Dost-Aly-Khan, In re 522 Dougal v. McCarthy 81 Doughty v. Bowman .... 297, 299 • v. Firbank 394 Douglas v. Patrick 305 PAGE Dovaston v. Payne 510 Down v . Hailing Ill Downes v. Johnson 1 68 Downing v. Butcher 485 Doyle r. City of Glasgow Life Assurance Co 528 Draycott r. Harrison 32 Dresser v. Norwood 54 Drew v. Nunn 20, 37 Driver v. Broad 95 Drummoud v. Van Ingen .... 192 Drury v. De Fontaine 161 v. Smith 282 Dublin Ry. Co. v. Slattery . . 369 Duck v. Bates 439 v. Mayeu 490 Dudden v. Clutten Union .... 349 Dudgeon v. Pembroke 215 Dudley v. West Bomwich Banking Co 471 Dufaur v. Professional Life Co 203 Duff r. G. N. Ry. Co 371 Duffield v. Hicks 283 Duggan v. Kelly 153 Duke v. Littleboy 151 Dumpor v. Symms 290 Duncan v. Dixon 16 v. Lawson 524 V. Lowndes 67 Duncuft v. Albrecht 95, 99 Dunlop v. Higgins 5 v. Lambert 103, 262 Durham v. Fowler 312 Durrant v. Ecclesiastical Com- missioners 129 Dutton v. Solomonson 262 Dyer v Munday 409, 471 Dysart Peerage Case 509 Dyson v. Greetland Local Board 515 v. Mason 168 v. Rowcroft 211 E. Eager v. Grimwood 427 Eaglefield v. Londonderry . . 435 Earle v . Peale 13 East v. Smith 115 Eastern Archipelago Co. v. Reg 183 East India Co. v. Hensley . . 40 Eastland v. Burchell 36 Eastwood v. Kenyon 87, 125 Eaton v. Basker 25 v. Western 182 LIST OF CASES CITED. PAGE Ecclesiastical Commissioners v. Kino 353 v. N. E. Ry. Co. . 139, 435 Eden v. Blake 175 Edgington v. Fitzmaurice 430, 431 Edmunds v. Wallingford .... 124 Edom v. Dudfield 103 Edwards, Ex parte 509 v. Aberayon Insur- ance Co 144 V. Brewer 265 v. Carter 16 v. Chapman 303 .v. G. W. By. Co. . . 339 v. Jones 282, 28 1 v. L. &N.W.Rv. Co. 410 v. M. By. Co. . .409, 483 Egan v. Kensington Union . . 120 Egerton v. Brownlow 133 Egremont v. Pulman, Doe d. . 504 Eicholtz v. Bannister 122, 189 Eley v. Positive Assurance Co. 97 Elkington v. Hurter 59 Elliot v. N. E. By. Co 418 v. Pybus 262 Elliott, Ex parte 469 v. Dean 90 v. Hall 251, 384, 475 v. Ince 19 v. Smith 528 Ellis v. Bridgnorth 151 v. Goulton 48 v. Hamlen 222 v. Hulse 516 v. Hunt 266 v. Loftus Iron Co 360 ■ v . Mortimer 262 v. Sheffield Gas Con- sumers' Co 403 Ellison v. Ellison 280 Elmore v. Kingscote 90 v. Stone 100 Elphick v. Barnes 262 Elphiustone v. Monkland Iron Co 341 Elsee v. Gatward 227 Elton v. Brogden 186 Elwes v. Maw 276 v. Payne 151 Embrey v. Owen 349 Emery v. Day 319 Emmanuel v. Dane 120 Emmens v. Pottle 461 Emmerson v. Heelis 99 Emmerton v. Matthews 192 Empson v. Soden 277 England v. Davidson L19 Ennis v. Bochford 539 PAGE Erato, The 216 Essex, Ex parte 448 Evans v. Collins 435 v. Edmonds 430 v. Elliot 74 v. Harlow 459 v. Hoare 91 v. Jones 164 v. Powis 303 v. Boberts 94 v. Roe "176 v. Walton 426 v. Ware 15 v. Wyatt 291 Everett v. Paxton 31 v. Bemington 301 Eyre v. Glover 212 v. New Forest Highway Board 511 F. Fabrigas v. Mostyn 516 Fairclough v. Marshall 76 Falcke v. Scottish Imperial . . 204 Falke v. Fletcher 454 Falmouth v. Roberts 315 Famenoth, The 370 Farebrother v. Simmons .... 92 Farina v. Home 103 Farley v. Danks 485 Faiqukarson v. Cave 283 Fair v. Ward 338 Farrant v. Barnes 238 v. Olmius 343 Farrar v. Cooper 67, 144 v. Deflinne 68 Farrer v . Nelson 360 Farrow v. Wilson 172 Featherstonhaugh v. Fenwick . 69 Feise v. Wray 265 Fell v. Knight 236 v. Parkin 534 Fellowes v. Gwydyr 59 Fellows v. Wood 15 Felthouse v. Bindley 6 Fenn v. Bittlestone 231 v. Harrison 40 Fenna v. Clare 370, 379 Fennell v. Bidler 160 Fent v. Toledo Ry. Co 365 Ferns v. Carr 122, 213 Fielder v. Stark in L86 Fielding v. Hawky 438 Filburn v. People's Palace Co. 359 Fillieul v. Armstrong 325 xl LIST OF CASES CITED. PAGE Finch r. Boning 306 ■ v. Brook 305 ■ v. G. W. Ry. Co 515 Finlay v. Chirney 329 Firbank v. Humphreys 59 Firmin v. Pulliam 280 Firth v. Bowling Iron Co 358 v. N. E. By. Co 249 Fish v. Kempton 53, 54 Fisher v. Apollinaris Co 21 ■ v. Bridges 138 ■ v. Cutkell, Right d. . . 82 v. Prowse 512 v. Waltham 165 Fishmongers' Co. v. Robertson 24 Fitch v. Sutton 303 Fitzgerald v. Dressier 86 ■ v. M. Ry. Co 254 FitzJohn v. Mackinder 483 Fleetwood v. Hull 301 Fleming v . Manchester Corpo- ration 416 Flemyng v. Hector 43 Fletcher r. Bealey 424 v. Krell 433 ■ v. Rylands 356,415 v. Smith 361 Flight v. Bolland 13 ■ v. Glossop 299 v. Thomas 352 Flood v. Jackson 150 Flower v. L. & N. W. Ry. Co. 14 ■ v. Low Leyton Local Board 480 v. Sadler 138 Foat v. Margate 479 Forbes v. Cochrane 155 v. Lee Conservancy Bd. 388 ■ v. Marshall 67 Ford, Ex parte 125 ■ v. Fothergill 13 Foreman v. Canterbury 386 Fores v. Johnes 142 Forristall v. Lawson 37 Forwood v. North Wales Co... 211 Foster v. Frampton 266 — v. Green 456 ■ v. Mackinnon 132 ■ v. Pearson Ill v. Redgrave 13 Fouldes v. Willoughby 457 Foulkes, In re, Foulkes v. Hughes 15 v. Metropolitan Ry. Co. 251, 399 v. Sellway 328 Fowler v. Fowler 162 v. Lock 407 Fowlers v. Walker 353 PAGE Fox v. Bearblock 509 v . Chester 159 v. Clifton 64, 68 v. Railway Passengers' Insurance Co 146 v. Swann 292 Foxall v. Barnett 484 Fragano v. Long 262, 263 France v. Gaudet 456 Francis v. Cockrell 372 Fraser, In re, Central Bank of London, Ex parte.. 68 ■ v. Jordon 309 Freeman v. Appleyard 99 r. Arkell 484 ■ v. Cooke 533 v. Jeffries 132 v. Pope 287 Freer v. Marshall 471 Freeth v. Burr 332 Fremantle v. L. & N. W. Ry. Co 415 French v. Styring 64 Fritz v. Hobson 422 Frodingham Iron Co. v. Bowser 388 Frost v. Knight 331 Fuller v. Blackpool Winter Gardens Co 438 — ■ v. Wilson 44 Furlong v. S. London Tram- ways Co 410, 488 G. Gabarron v. Kreeft 260 Gabay v. Lloyd 180 Gaetano and Maria, The .... 521 Gallagher v. Humphrey .... 382 Galland, Re 163 Gallaway v. Maries 168 Gallin v. L. k N. W. Rv. Co. 371 Gallop v. Vowles, Doe d*. 508 Gallway v. Mathew 68 Galsworthy v. Strutt 341 Gandy v. Adelaide Co 209 v. Gandy 122, 540 v. Jubber 412 Gardiner, In re 32 Gardner v. Grout 102 ■ v. Parker 282 Garland v. Jacomb 67 Games, Ex parte 288 Garrard v. Lewis 535 Garrett v. Messenger 476 Gas Light Co. v. St. Mary Abbotts 414 LIST OF CASES CITED. xli PAGE Gason v. Rich 296 Gautret v. Egerton 384 Geddis v. Bairn Reservoir .... 415 Gedye, In re 479 Gee v. Met. Ry. Co 370 George v. Clagett 52 v. Skivington 473 Gerhard v. Bates 430 Gertor, The 363 Ghost's Trusts, In re 539 Gibbons v. Chambers 171 — v. Proctor 6 Gibbs v. G. W. Ry. Co 394 v. Guild 435 v. Societe des Metaux . . 520 Giblin r. McMullen 226, 230 Gibson, Re 20 v. Holland 90 • v. Preston 388 v. Small 215 Gilbert v. N. L. Ry. Co 368 v. Sykea 164 Giles v. Walker 358 Gill v . Cubitt Ill v. M. S. & L. Ry. Co. . . 23S Gillingham v. Gwyer 275 Gilmour v. Supple 261 Gimson v. Woodfall 471 Gladman v. Johnson 359 Gladney v. Murphy 427 Glasier v. Rolls 431 Glenfruin, The 215 Glenister v. Harding 509 Glover v. Coleman 352 v. East Lond. Water- works Co 403 v. L. & S. W. Ry. Co 367 Glyn v. E. & W. India Dock Co 269, 453, 457 Glynn v. Margetson 214 Goddard v. O'Brien 303 Godsall v. Boldero 200 Godts v. Rose 262, 263 Godwin v. Culley 318 v. Francis 91 v. Parton 321 Goff v. G. N. Ry. Co 409 Coffin v. Donelly 462 Golden r. Gillam 288 Goldsmid v. Goldsmid 153 v. G.E. Ry. Co 151 Goldsmith v. G. E. Ry. Co. . . 242 Goman v. Salisbury 177 Good v. Elliott 164 Goodman v. Chase 85 r. Harvey Ill v. Saltash 181 Goodwin v. Roberts 112 PAGE Gordon v. G. W. Ry. Co. ... 242 r. Gordon 132 v. Harper 456 V. Potter 327 r. Silber 235 ■ v. Swan 338 Goring v. Edmunds 309 Gorton v. Falkner 270, 274 Goss v. Nugent 174 Gott v. Candy 198 Gough v. Wood 74 Gould v. Oliver 218 Goulder v. Goulder 524 Gover's Case 435 Graham v. Massey 522 v. Newcastle-upon- Tyne (Mayor) 515 Grainger v. Aiiisley 392 v.Hill 455,486 Grand Junction Canal Co. v. Petty 511 Grand Junction Canal Co. v. Shugar 350 Grand Trunk Ry. of Canada v. Jennings , 494 Grant v. Easton 521 ■ v. Fletcher 92 v. Maddox ISO Gravely v. Barnard 148 Graves v. Masters 41 Gray v. Cox 191 v. Pullen 403 v. Smith 95 v. Start 275 Great Berlin Steamboat Co. . . 430 Great N. Ry. Co. v. Hawcroft 255 v. Shepherd 248 v. Swaffield 41 v. Withain . 9 Great W. Ry. Co. v. Blake . . 398 Greatrex v. Hay ward 350 Greaves v. Hepke 261 Grebert Bognis v. Nugent . . . 339 Green v. Beesley 64 t'. Cresswell 87 r. Duckett 132,443 v. Green 519 v. Humphreys 317 v. Hutt 479 v. Young 214 Greenland v. Chaplin ;;72 Greenwood v. Hornsev 353 v. Sutcliffe 306 Greer v. Poole 525 Grenfell v. Girdlestone 318 Grey, In re, Grey v. Stam- ford 523 Grice v. Richardson 103 Griffin v. Coleman 487 xlii LIST OF CASES CITED. PAGE Griffiths v. Dudley 391, 396 v. Loudon & St. Ka- therine Dock Co. 394 v. Ystradyfodwg School Board 307 Grinioldby v. Wells 102 Grimwood v. Moss 291 Grindell v. Godmond 37 Griunell v. Wells 42G Grizewood v. Blane 167 Grogan's Case 203 Groucott v. Williams 232 Grove, In re 524 Groves v. Loonies 300 Guild v. Conrad 87 Guille v. Swan 367 Gully v. Smith 514 Gunn v. Roberts 40 Gurney, In re, Mason v. Mercer 320 Guy Manner ing, The 376 Gwilliam v. Twist 41 Gwinnell v. Earner 413 Gylbert v. Fletcher 14 II. Haddrick v. Heslop 483 Hadley v. Baxendale 333 Haigh v. Royal Mail Steam Packet Co... 473, 494 v. Suart 59 Hailes v. Marks 487 Haines v. Guthrie 502 Halestrap v. Gregory 364 Halford v. Kymer 202 Halifax Banking Co. v. Gled- hill 287 Hall, Ex parte 21 v. Billingham 194 v. Bootle Corporation . . 511 v. Conder 190 v. Flockton 303 v. N. E. Ry. Co 371 v. Nottingham 180 v. Potter 154 v. Warren 20 v. West End Advance Co 539 v. Wright 328 Hallen v. Runder 278 Halley, The 520 Hamer v. Sharp 41 Hamill v. Murphy 540 Hamilton v. Mohun 154 ■ ■ v. Watson 308 Hamlin v. G. N. Ry. Co 257 PAGE Hamlyn v. Crown Accident Co 202 v. Talisker Brewerv. 517 v. AVood '. . 173 Hammack v. White 369 Hammersmith Ry. Co. v. Brand 414 Hammond v. Bussey 339 ^.Meadows 97 Hampden v. AValsh 165 Hampson v. Price's Candle Co. 140 Hancock v. Austin 224 v. Peaty 20 Hands v. Burton 120 v. Slaney 12 Hanfstaengl v. Baines 440 v. Empire Palace Co 440 Hanson v. Armitage 103 Harcourt, In re 284 Hardcastle v. Bielby 386 Hardingham v. Allen 306 Hardman v. Booth 457 Hardy v. North Riding Justices 480 Hare v. Travis 214 Hargreave v. Spink 452 Hargreaves r. Diddams 477 Harman v. Delaney 459 v. Reeve 99 Harmer v. Cornelius 325 Harms v. Parsons 147 Harper v. Luffkiu 427 v. Williams 339 Harrington v. Victoria Grav- ing Dock Co 45 Harris, Ex parte 273, 443 v. Brisco 136 v. De Pinna 353 v. G. W. Ry. Co 250 v. Huntback 85 v. James 411 ■ v. Lee 37 v. Mobbs 364 v. Nickerson 4 ~ v. Tenpany 314 v. Truman 534 Harrison v. Bush 462 v. Fraser 464 v. Heathorn 68 t-.L.&N.W. Ry.Co. 494 v. Luke 120 v. NationalProvincial Bank 482 v. Page 329 v. Rutland 510 v. South wark and Vauxhall Water Co 414 v. Tennant 69 LIST OF CASES CITED. xliii PAGE Harrison v. Wright 342 Harriss v. Fawcett 311 Harrower v. Hutchinson .... 209 Harston v. Harvey 119 Hart v. Alexander 69 v. Prater 12 v. Swain 430 Hartas v. Ribbons 43 Hartcup v. Bell 540 Hartfield v. Roper 3S0 Hartland v. General Exchange Bank 327 Hartley v. Ponsonby 119 v. Rice 153 Hartnall v. Ryde Improve- ment Commissioners 387 Harvey v. Copeland 82 v. Facey 8 v. Farnie 519 v. Harvey 447 v. Pocock 274, 443 Hastings v. Pearson 55, 230 Hatch v. Hatch 280 Haweroft v. G. N. Ry. Co. . . 255 Hawes v. S. E. Ry. Co 336 Hawke v. Cole 43 Hawker v. Bourne 68 v. Shearer 373 Hawkins v. Blewitt 282 Hawksford v. Giffard 521 Hawtayne v. Bourne 41, 42 Hawthorne, In re 522 Hay craft v. Creasy 429 Hay don v. Williams 318 Hayes v. Smith 471 Hayman, Ex parte 64 Hayton v. Benson, Pleasant, d. 82 — v. Irwin 179 Hay ward v. Hay ward 464 Haywood v. Brunswick Build- ing Society . . 300 v. Rodgers 209 Head v. Tattersall 262 Heald v. Kenworthy 51 Hearn v. L. & S. W. Ry. Co.. 245 Hearne v. Edmunds 219 Heath v. Weaverham Over- seers 532 Heather v. Webb 126 Heaven v. Pender . .385, 432, 474 Heawood v. Bone 272 Hebditch v. Macllwaine .... 463 Hebdon v. West 200 Hedges v. Tagg 426 Hedley v. Baiubridge 67 v. Pinkney Steamship Co 390 Heffield v, Meadows 310 !y V. Shine 141 PAGE Heilbutt v. Hickson 192 Helby v. Matthews 231 Hellawell v. Eastwood 270 v. L. &N.W. Ry.Co. 370 Helps v. Winterbottom 318 Hemp v. Garland 318 Henderson v. L. & N. W. Rv. Co 246 v. Preston 486 v. Stevenson .... 250 v. Thorne 338 v. Williams.. 227, !• 53, 537 Henthorn r. Fraser 5 Herbert v. Markwell 234 Herman v. Jenchner .... 139, 213 v. Royal Exchange Shipping Co 541 Hermann-Loog v. Bean 46 1 Hernando, In re 524 Heseltine v. Signers 99 Heske v. Samueison 393 Heslop v. Chapman 483 Hetherington v. 1ST. E. Rv. Co. 494 Heugh v. L. & N. W. Ry. Co. 249 Hewett, In re, Ex parte Levene 32 Hewitt v. Kaye 283 Hewlett v. Allen 137 v. Cruchley 484 Hewlins v. Shippam 214 Heydon's Case 28 Heyman v. Flewker ....... 58 Hey wood v. Mallalieu 434 Hick v. Raymond 171 v. Rodocanachi 171 Hicks v. Faulkner . .482, 483, 485 Hide v. Thornborough 419 Higginsand Hitchman, In re.. 301 v. Sargent 338 Higginson v. Simpson 167 Higham v. Ridgway 506 Highgate School v. Sewell . . 292 Hiibery v. Hatton 453 Hildesheim, In re 66 Hildreth v. Adamson 512 Hill r. Cooper 2U v. Hart-Davis 459 v. Somerset 514 v. South Staffordshire Ry. Co 338, 339 ■ v. Tupper 214 Hilliard v. Hanson 447 Hills v. Hills 283 Hilton v. Eekersley 149 1 1 inchcliffe v. Barwick 1S6 llinde v. Whitehouse 102 Hindley v. Westmeath 154 Hinton v. I >ibbin 245 xliv LIST OF CASES CITED. PAGE Hinton v. Heather 483 Hiort v. Bott 454 v. L. & N. W. Ry. Co. . . 456 Hire Purchase Furnishing Co. v. Richens 139 Hirschfield v. L. B. & S. C. Ry. Co 494 Hiscox v. Batchelor 32G Hoadley v. McLaine 90 Hoare v. G. W. Ry. Co 243 . v. Niblett 530 v. Rennie 331 Hobbs v. Hudson 275 v. L. & S. W. Ry. Co. 256 Hochster v. De la Tour 330 Hodder v. Williams 448 Hodgkinson v. Ennor 350 Hodgson, In re 530 v. Railway Passen- gers' Assurance Co 14G Hodkinson v. L. & N. W. Ry. Co 249 Hodsoll v. Taylor 427 Hoey v. Felton 492 Hogarth v. Jennings .... 275, 448 Hole v. Barlow 423 v. Sittingbourne Ry. Co.. 403 Holker v. Porritt 349 Holland v. Cole '292 v. Worley 353 Holliday v. Morgan 185 Hollinrake v. Truswell 438 Hollins v. Fowler 456 Holme v. Brunskill 308 ■ v. Hammond 66 Holmes v. Blogg 14 v. Brierley 329 . „. Mather 368 ■ v. Mitchell 89 v. N. E. Ry. Co. . .385, 396 v. Onion 327 Holt v. Ward 9, 15 Homfray v. Scroope 319 Honck v. Muller 331 Hood-Barrs v. Cathcart 32 Hooper v. Clark 298 v. L. & N. W. Ry. Co. 251, 399 v. Lusby 67 Hope v. Evered 484 v. Hope 518 Hopkins v. Tanqueray 187 Horn v. Anglo-Australian Co. 203 Home v. M. Ry. Co 335, 336 ■ v. Rouquette 517 Horner v. Cadman 514 v. Graves 148 Horneyer v. Lushington .... 212 Hornsby v. Raggett 168 PAGE Hor^ton, In re 540 Horwood v. Smith 451 Hough v. Manzanos 50 Hounsell v. Smith 382 Household Fire Insurance Co. v. Grant 5 Houstoun v. Sligo 540 Hovil v. Pack 43 Howard v. Bennett 394 v. Clarke 487 v. Digby 20 v. Harris 226 v. Sheward 40 v. Woodward 343 Howarth v. Brearley 127 Howcutt v. Bonser 318 Howe v. Finch 393 Howell v. Coupland 170, 172 Howitt v. Nottingham Tram- ways Co 389 Hoyle, In re 87, 91 Hubbard, Ex parte 229 Hubert v. Groves 422 Huddersfield Banking Co. v. Lister 532 Hudson v. Baxendale 238 v. Harrison 211 Hudston v. M. Ry. Co 248 Huffell v. Armitstead 82 Hugall v. McLean 199 Hughes, Ex parte 266 , In re 283 v. Percival 403 v. Smallwood 276 Hugill v. Masker 58 Huguenin v. Baseley 281 Hull v. Pickersgill 490 Humble v. Hunter 50, 130 v. Mitchell 99 Hume v. Oldacre 490 Humphrey v. Dale 49 Humphreys v. Green 108 v. Jones 317 Humphries v. Brogden 421 Hunt v. Fenshawe 447 v. Gt. Northern Ry. Co.. 392, 463 v. Wimbledon Local Bd. 24,25 Hunter v. Walters 132 Huntley v. Sanderson 319 HuntlyY Bedford Hotel Co. . 237 Hurdman v. N. E. Ry. Co. . . 358 Hurley v. Hurley 524 Hurst v. G. W. Ry. Co 254 • v. Taylor 372 Hussey v. Horne-Payne .... 8, 107 Hutcheson v. Eaton 49 Hutchins v. Chambers 274 Hutchinson v. Bowker ... .8, 180 LIST OF CASES CITED. xlv PAGE Hutchinson v. Tatham 49 Hutton v. Bulloch 48 v. Warren 180 Hylton v. Hylton 280 Hyman v. Nye 368 Illingworth v. Bulmcr High- way Board 516 Ilott v. Wilkes 382 Imperial Loan Co. v. Stone . . 19 Indermaur v. Dames 381 Industrie, The 521 Ingham v. Primrose 112 Ingle v. McCutchan 479 Inglis v. Stock 259 Inman v. Stamp 94 Ionides v. Pender 209 Irons v. Smallpiece 279 Irvine v. Watson 50, 51 Irving v. Greenwood 328 Isaacs v. Hardy 101 Isitt v. Railway Passengers' Assurance Co 204 Ivay v. Hedges 383 Iveson v. Moore 422 J. Jackson v. Barry Ry. Co 144 v. Cummins 232 v. Hill 392 Jacobs v. Credit Lyonnais. ... 517 v. Schmaltz 460 Jacquot v. Bourra 323 Jakeman v. Cook 126 James, Ex parte 132 Jamieson, Be 30 Jarrett v. Hunter 90 Jarvis v. Jarvis 94 Jeakes v. White 95 Jeffereys v. Small 77 Jefferys v. Gurr 26 Jendwine v. Slade 185 Jenkins v. Jones 339 v. Morris 20 Jenks v. Turpin 169 Jenkyns v. Brown 263 Jenner v. Morris 37 v. Smith 262 v. Turner 153 Jennings v. Baddeley 09 v. Hammond 138 - v. Ruudall 17 PAGE Jenoure v. Dehnege 464 Jervois v. Duke 153 Jewsbury v. Newbould 36 Jewson r. Gatti 385, 475 John v. Bacon 398 Johnson v. Credit Lyonnais . . 58 v. Emerson 485 v. Faulkner 271 v. Gallagher 29 v. Hook 452 v. Lindsay 390, 40S v. M. Ry. Co 239 v. Newnes . . 439 v. Pie 17 v. Raylton 192 v. Stear 455 Johnston v. Johnston 434 v. Sumner 36 Johnstone v. Huddleston .... 83 v. Mapping 97 ■ v. Marks 13 v. Milling 331 v. Sutton 471 Joliffe v. Baker 429 Jolly v. Arbuthnot 74 v. Rees 35 Jones, Ex parte 17 v. Bowden 193 v. Boyce 376 v. Bright 191 • v. Broadhurst 303 v. Carter 291 v. Cuthbertson 29 v. Eestiniog Ry. Co 415 v. Hough 457 v. Jones , 268 ■ v. Just 191 v. Liverpool Corpora- tion 402, 408 v. Lock 149, 280 v. Marsh 82 v. Marshall 229 v. Merionethshire Build- ing Society 138 v. Mills 82, 412 v. Morgan 320 v. North 149 v. Padgett 192 v. Selby 283 v. St. John's College . . 170 v. Thomas 467 v. Tyler 236 v. Victoria Graving Dock 107 Jordan v. Norton 7 Jordan v. Crump 382 Joyce v. Swan 263 Joyner v. Weeks 338 Jupp, In re 284 Jury v. Stoker 435 xlvi LIST OF CASES CITED. K. PAGE Kalteubach v. Lewis 58 Kaunreuther v. Geiselbrecht . . 525 Kay v. Field 170 Kearley v. Thomson 139 Kearney v. L. B. & S. C. Ry. Co 370 Kearon v. Pearson 170 Kearsley v. Cole 307 v. Philips 75 Keate v. Phillips 532 v. Temple 85 Keates v. Cadogan 198 Keech v. Hall 72 Keen v. Millwall Dock Co. . . 395 v. Priest 27-1 Keily v. Monck 152 Keir v. Leeman 135 Keith Prowse v. National Tele- phone Co 82 Kelk v. Pearson 352 Kellard v. Eooke 394 Kelly v. Browne 447 v. Metropolitan Ry. Co. 474 v. Solari 129 Kelner v. Baxter 60, 68 Kemble v. Farren 340 Kemp v. Falk 268 Kendal v. Marshall 267 Kendall v. Hamilton 530 Kendillon v. Maltby 462 Kennedy v. Brown 126 r. Thomas 113 Kenrick v. Lawrence 439 Kensington Station Act, Re. . 319 Kensit v. G. E. Ry. Co 349 Kent v. Courage 483 v. M. Ry. Co 251 v. Worthing Local Board 387, 513 Keppell v. Bailey 300 Kerbey v. Denbey 446 Kershaw v. Ogden 261 Kettle v. Elliott 17 Kewley v. Ryan 214 Keys v. Harwood 120 Kiddell v. Burnard 186 v. Lovett 339 Kidderminster r. Hardwick . . 24 Kidgill v. Moor 424 Kilpin v. Ratley 280 Kimber v. Press Association. . 466 King v. Hoare 490, 530 ■ v. Lloyd 511 v. London Improved Cab Co 407 v. Lucas 31 v. Spurr 407 Kingdon v. Nottle 300 TACE Kingsford v. Marshall 219 e. Oxenden 119 Kingston's (Duchess of) Case . 529 Kingston-upon-Hull v. Hard- ing 308 Kirk v. Blurton 67 v. Gregory 454 v. Todd 351 Kirkham v. Marter 88 Kleinwort v. Comptoir de Paris 453 Klcsbe, In re 525 Knight, In re 319 v. Coales 144 ■ v. Cotesworth 209 v. Crockford 90 v. Fox 402 v. Gardner 163 v. Lee 166 Knowlman v. Bluett 97 Knox v. Bushell 37 v. Hayman 432 Kopitoff v. Wilson 215 Labouchere v. Dawson 149 Lacy v. Osbaldiston 325 Ladyman v. Grave 353 Laing v. Fidgeon 192 v. Meader 306 Lake v. Craddock 77 Lamb v. Evans 9, 436 v. G. N. Ry. Co 137 v. Walker 420 Lambe v. Orton 527 Lambert v. Heath 122 Lambkin v. S. E. Ry. Co 493 Lambton v. Mellish 123 Lampleigh v. Brath wait. . 119, 123 Lancaster, The 216 Lancaster Justices v. Newton Improvement Commissioners 512 Landsdowne v. Landsdowne . . 132 La Neuville v. Nourse 120 Langridge v. Levy 435, 472 Langrish v. Archer 169 Lanyon v. Toogood , 261 Lapthorn v. Harvey 512 Latimer v. Official Co-operative Society 419 Lauderdale Peerage Case .... 523 Laugher v. Pointer 400 Lavery v. Purcell 94 Law v. Redditch Local Board 341 Lawes, In re 527 v. Maughan 312 LIST OF CASES CITED. xlvii PAGE Lawrence v. Accident Insur- ance Co 203 V. G. N. Ry. Co. . . 416 Lawson v. L. & S. W. Ry. Co. 246 Lawton v. Lawton 278 Lax v. Darlington 370, 372 Laxon, In re 18 Laythoarp v. Bryant 9, 91 Lea v. Charrington 484 v . Facey 480 v. Whitaker 343 Lea Conservancy Board v. Hertford 414 Leach v. S. E. Ry. Co 248 Leak v. Driffield 32 Learoyd v. Bracken 137 r. Brook 325 Leary v. Shout 69 Leask v. Scott 268 Leather Cloth Co. v. Lorsont.. 148 Leatherdale v. Swepstone .... 305 Le Blanche v. L. & N. W. Ry. Co 253 Le Chevalier v. Huthwaite, Doed 177 Leek v. Maestaer 231 Le Conteur v. L. & S. W. Ry. Co 244, 246 Leddell v. McDougal 429 Leduc v. Ward 214 Lee v. Abdy 517 v. Bayes 471 v. Butler 231 v. Gaskell 278 v. Griffin 104 v. Jones 308 v. L. & Y. Ry. Co 303 v. Riley 360 Leeds v. Cook 329 Leeds and County Bank v. Walker 314 Leek Improvement Commis- sioners v. Staffordshire Jus- tices 512 Lees v. Whitcomb 327 Leesc v. Martin 162 Legg v. Evans 456 Lepgott v. G. N. Ry. Co. .495, 530 Leigh, In re 22 v. Jack 511 v. Webb 482 Leith v. Pope 484 Le Lievre v. Gould 432 Lemaitre v. Davis 4 21 Lempriere v. Lange 17 Leon, The 522 Leroux v. Brown 92, 518 Leslie, Ex parte 470 ■ v. Fitzpatrick 14 PAGE Leslie v. French 204 v. Young 436 Lester v. Foxcroft 108 Letchford v. Oldham 219 Lethbridge v. Phillips 407 Levy, In re 448 ■ v. Merchant Marine In- surance Co 211 v. Richardson 40 Lewis v. Brass 8 v. Davison 139 Lickbarrow v. Mason 264 Liddard v. Kain 185 v. Liddard 77 Lilley v. Doubleday 232, 339 v. Elwin 322 Lilly v. Smales 50,59 Limpus v. London General Omnibus Co 404,451 Lindenau v. Desborough .... 206 Lindsay v. Cundy 451 Lister v. Perryman 481, 487 v. Stubbs 46 Liverpool Adelphi Loan Asso- ciation v. Fairhurst 30, 37 Liverpool Household Stores Association v. Smith 460 Livietta, The 217 Livingstone v. Rawyards Coal Co 456 Lloyd v. Harper 311 v. Johnson 141 v. Rosbee 83 Lock v. Ashton 487 v. Pearce 292 Lofifus v. Maw 534 Loftus v. Heriot 32 London v. Riggs 515 London Assurance Co. v. Mansel 203 L. B. & S. C. Ry. Co. v. Tru- man 414 London and County Bank v. LondonandRiverPlateBank 453 London Chartered Bank of Australia v. Lempriere .... 31 London Chartered Bank of Australia v. White 162 L. C. & D. Ry. Co. v. Bull . . 301 ~ — v. S. E. Ry. Co 338, 339 London Financial Association v. Kelk 64 London Guarantee Society v. Fearnlcy 203 London and Yorkshire Bank v. Belton 274 London Joint Stock Bank v. Simmons Ill xlviii LIST OF CASES CITED. PAGE Long v. Clarke 446 ■ v. Millar 108 Longmcid v. Holliday 474 Longridge r. Dowille 119 Loog v. Bean 40 1 Lopus v. Chandelor 184 Lord v. Price 457 Loring v. Davis ISO Loughborough Highway Board v. Curzon 516 Lound v. Grimwade 136 Lovat Peerage Case 509 Love v. Bell 4'2 1 Lovell v. L. C. & D. Ry. Co... 249 Lovelock v. King 222 Low v. Bouverie 432, 539 Lowe v. Pox 314 v. G. N. Ry. Co 409 v. Peers 152 Lowry v. Bourdieu 213 Lucas v. Dixon 89 v. Mason 408 v. Tarleton 442 v. Worswick 129 Lucena v. Crawford 201 Ludgater v. Love 44 Ludlow v. Charlton 23 Ludmore, In re 447 Luker v. Dennis 300 Lumley v. Gye 491 Lumsden v. Russell 380 Lyde v. Barnard 429 • v. Russell 277 Lyell v. Kennedy 320 Lygo v. Newbold 379 Lynch v. Knight 491 v. Nurdin 378 Lynes, In re, Ex parte Lester. 32 Lyon v. Fishmongers' Co 349 v. Holt 309 v. Johnson 144 v. Knowles 64 r. Wells 215 Lyons v. De Pass 452 v. Elliott 271 v. Hoffnung 266 Lyster v. Goldwin, Doe d. . .74, 82 M. Maber v. Maber 316 Mac, The 215 MacArthur, Ex parte 66 MacCarthy v. Young 228 Macclesfield v. Chapman .... 151 v. Pedley 151 . Highway Board v. Grant 420 PAGE Macdonald, In re 312 Macdougali v. Knight. . . .465, 530 MacDougle v. Royal Exchange Association Co 220 Macfarlane, Re 20 Machu v. L. & S. W. Ry. Co. 246 Maclntyre, Re 30 Mackay v. Commercial Bank of New Brunswick . 45 v. Douglas 287 v. Ford 462 Macleod v. Att.-Gen 525 Macmanus v. Crickett 409 Macreight, In re 523 Macrow v. G. W. Ry. Co. . . 248 Maddison v. Alderson 103, 433 Madell v. Thomas 231 Magdalena Co. v. Martin 318 Magee v. Lavell 343 Magnus v. National Bank of Scotland 530 Magor v. Chadwick 350 Makin v. Watkinson 199 Malachy r. Soper 460 Malcolm v. Hoyle 49 Malcolmson v. O'Dea 503 Mallan v. May 148 Malpasr. L. & S. W. Ry. Co. 176 Manby v. Scott 17, 33 Manchester (Mayor of) v. Wil- liams 459 Manchester Bonded Wai-e- house Co. v. Carr 171, 199 Manchester and Oldham Bank v. Cook 540 Manchester Ry. Co. v. Fullar- ton 415 Manchester, &c. Ry. Co. v. Wallis 372 Mangan v. Atterton 379 Manley v. Field 426 v. St. Helens Co. .... 416 Mann v. Nunn 95 v. Walters, Doe d 82 Mansfield Union v. Wright .. 310 Manzoni v. Douglas 369 Maple v. Junior Army and Navy Stores 436 March, In re 284 Margaret, The 376 Marge tson v. Wright 185 Marie, The 216 Marine Investment Co. v. Haviside 105 Mark Lane, The , 216 Marks v. Benjamin 477 Marrett, In re 523 Marriott v. Edwards, Doe d... 75 v. Hampton 128 LIST OF CASES CITED. xlix PAGE Marseilles Ry. Co., In re .... 525 Marsh u. Curteys 291 v. Keating 469 Marshall v. Green 94 v. Poole 338 v. Rutton 29 v. Schofield 171 v. Taylor 511 v. York, &c. Ry. Co. 251, 474 Martin v. Connah's Quay Alkali Co 394 v. G-ohle 352 v. G-. N. Ry. Co 385 v. Hewson 165 v. Kennedy 490 v. Price 353 ■ v. Sitwell 212 v. Smith 165 ■ v. Tritton 447 Martindale v. Smith 455 Martineau r. Kitching 263 Martini v. Coles 449 Martyn v. Clue 299 v. Gray 64 Marvin v. Wallis 101 Marzetti v. Smith 176 v. Williams 348 Mason v. Hill 350 Maspons v. Mildred 53 Massey v. Allen 508 ■ v. Goodall 125 ■ v. Johnson 94 Master v. Miller 313 Matheson, In re 525 Mathews v. London Streets Tramways Co 378 Mathiessen v. London and County Bank 457 Matthews v. Baxter 18 v. Jackson, Doe d. . . 82 Maw v. Jones 327 May, In re 530 v. Burdett 359 ■ v. Lane 295 v. O'Neill 147 v. Thomson 108 Mayhew <■. Nelson 245 Mayor v. Collins 18 McArthur v. Cornwall 493 M'Cartan v. N. E. Ry. Co. . . 254 M'Carthy v. G. W. Ry. Co. . . 241 M'Cawley v. Furness Ry. Co.. 371 McCollin v. Gilpin 49 M'Cowan v. Baine 182 McEvoy v. Waterford Steam- shipCo 395 McGiflEen v. Palmer's Sliiji- building Co 393 S. — C. PAGE McGregor v. McGregor 29, 97 McHenry, In re 317 MTntyre v. M'Gavin 349 MTver v. Richardson 88 McKenzie v. British Linen Co. 537 v. McLeod 417 McKinnell v. Robinson 167 McKinnon v. Penson 385 M'Laren, In re 268 McMahon v. Field 256, 334 M'Manus v. Cooke 108 r. L. & T. Ry. Co... 241 McMasters v. Schoolbred 211 McMullen v. Wadsworth 523 M'Myn, In re 38, 311 M'Nally v. L. & T. Ry. Co. . . 241 McQueen v. G. W. Ry. Co. . . 246 Mead, In re 283 Meakin v. Morris 14 Medawar v. Grand Hotel Co. . 237 Meek v. Wendt 59, 339 Megson v. Mapleson 442 Mellis v. Shirley Local Board. 25, 137 Mellors v. Shaw 390 Melville v. Mirror of Life Co.. 439 Membery v. G. W. Ry. Co. . . 374, 395 Menetone v. Athawes 221 Mercantile Steamship Co. v. Tyser 209 Mercer v. Irving 343 v. Whall 326 Merchants of the Staple v. Bank of Ens-land 535 Meredith v. Wilson 301 Merest r. Harvey 493 Merivale v. Carson 464 Merle v. Wells 310 Merrett v. Bridges 511 Merryweather v. Moore ... .9, 437 ■ v. Nixan 488 Mersey Docks Trustees v. Gibbs 388 Mersey Steel and Iron Co. v. Naylor : 332 Messiter v. Rose 327 Metcalfe v. Shaw 36 Metropolitan Asylum District v. Hill 349, 116 Metropolitan Bank v. Heiron.. 46 v . Pooley . . 485 Metropolitan Ry. Co. v. Jack- son 367, 369 Meux v. G. E. Ry. Co 474 Meux's Brewery Co. r. City of London Electric Li^lilini;- Co ...357, M6 Mexborough v. Wood 343 d LIST OF OASES CITED. PAGE Meyer v. Decroix 113 v. Haworth 29 Meyerhoff v. Froehlich 317 Middlesbrough Overseers v. Yorkshire Justices 516 Midland Insurance Co. v. Smith 207, 471 Midland Ry. Co. v. Withing- ton Local Board 480 Miers v. Brown 115 Milan, The 376 Miles'sCase 266 Miles v. Gorton 103 ■ v. Mcllwraith 538 v. New Zealand Alford Estate Co 97, 119 v. Scotting 131 Milgate v. Kebble 456 Millen v. Brasch 245 Miller v. Dell 318 v. Green 271 v. Hancock 385, 411 v. Miller 283 v. Race HO v. Salomons 158 Milligan v. Wedge 402 Mills, Ex parte 66 ■ v. Armstrong 377 v. Ball 267 v. Dunham 149 Millward v. M. Ey. Co 394 Milnes v. Bale 476 v. Duncan 129 v. Huddersfield 417 Mineral Water Bottle Society v. Booth 150 Minshull v. Oakes 298 Mirabita v. Imperial Ottoman Bank 263 Mirams, In re 136 Missouri Steamship Co., In re 521 Mitchel v. Reynolds 146 Mitchell's Case 14 Mitchell v. Darley Main Col- liery Co 420 v . Edie 211 v. Homfray 281 • v. Lapage 130 v. L. & Y. Ry. Co 249 ■ v. Simpson 447 v. Smith 284 Mitchinson v. Carter, Doe d. . 292 Mizen v. Pick 36 Mody v. Gregson 192 Moenich v. Fenestre 147 Moffat v. Parsons 306 Moffatt v. Bateman 384 Mogul Steamship Co. r. McGregor, Gow & Co 150 PAGE Mollwo, March & Co. v. Court of Wards 64 Molton v. Camroux 19 Monson v. Tussaud 460 Montagu v. Benedict 33 v. Forwood 53 Montaignac v. Shitta 41 Monypenny v. Monypenny . . 183 Moon v. Witney Guardians . . 42 Moorcock, The 231 Moore v. Campbell 177 v. Fulham Vestry 131 v. Gimson 393 v. Hall 352 „. Knight 67 v. Metropolitan Ry. Co. 409 ■ v. Moore 283 v. Rawson 353 Moorecraft v. Meux, Doe d. . . 291 Moorhouse v. Lord 523 Morgan v. Griffith 176 v. Hutchins 393 ■ v. London General Omnibus Co. . . 392 v. Ravey 9, 235 v. Rowlands 316 v. Vale of Neath Ry. Co 390 Morland v. Cook 298 Morley v. Attenborough 189 v. Bird 76 r. Loughnan 281,282 v. Pincombe 272 Morris, In re 447 v. London and West- minster Bank . . 335 v. Salberg 447 Morrison v. Universal Marine Insurance Co 210 Morritt v. N. E. Ry. Co 243 Mortimer v. Cradock 450 Mortimore v. Wright 126 Morton v. Palmer 272 v. Tibbett 102 Moss v. Gallimore 72 Mosse v. Killick 159 Moufletv. Cole 148 Moule v. Garrett 299 Mountstephen v. Lakeman . . 84 Mowatt v. Castle Steel and Iron Co 540 v. Londesborough .... 339 Moyce v. Newington 451 Moyle v. Jenkins 395 Mozley v. Tinkler 88 Mucklow v. Mangles 259 Mullens v. Miller 45 Mullett v. Mason 335, 435 Mulliner v. Florence 457 3 LIST OF CASES (JIT ED. PAGE Munday r. Thames Ironworks Co 395 Mundy v. Jolliffe 108 v. Rutland 421 Municipal Building Society v. Smith , 75 Munro v. Butt 222 v. De Chemant 38 Minister v. Lamb 462 Murley v. Grove 382 Murphy v. Smith 391 v. Wilson 394 Murray v. Currie 401 Muschamp v. Lancaster and Preston Ry. Co 399 Musgrave v. Pulido 516 Mwsurus Bey v. Gadban. .318, 319 Mycock v. Beatson 69 Myers v. Catterson 354 — v. L. & S. TV. By. Co.. 239 Mytton v. M. By. Co. . . . .248, 251 N. Nash v. Birch, Doe d 291 v. Lucas 446 National Bank v. Silke 112 National Insurance Co. v. Pru- dential Assurance Co 353 National Mercantile Bank p. Rymill 456 National Provincial Bank v. Harle 294 National Telephone Co. v. Baker 357, 414 Naylor, In re 287 Needier v. Guest 221 Neilson v. James 180 v. Mossend Iron Co. . . 70 Nelson v. Duncomb 19 V. Liverpool Brewery Co 411 Nepean v. Doe 525 Ness v. Stephenson 272. 443 Neuwith v. Over-Darwen In- dustrial Society 230, 406 Nevill v. Fine Arts Insurance Co 459 v. Snelling 22 Newbigging v. Adam 69 Newbould v. Smith 509 Newcastle-upon-Tyne (Mayor) v. Att.-Gen 27 Newell v. Radford 170 Newman v. Newman 202 Newborn v. Thornton 265 Newsome v. Coles 68 PAGK Newton v. Harland 443 v. Marsden 154 Newton Improvement Com- missioners^. Lancashire Jus- tices 515 Nicholl v. Greaves 326 Nichols v. Marsland 357 v. Regent's Canal Co. . 317 Nicholson v. Bradfield Union . 23 v. Chapman 42 v. Harper 57 v. L. & T. Ry. Co. 385 r. Paget 311 v. Revill 304 Nicklin v. TVilliams 348 NIcol v. Beaumont 515 Nicols v. Pitman 437 Niell v. Morley 19 Nieman v. Nieman 67 Nifa.The 179 Nind v. Nineteenth Century Building Society 292 Niven v. Greaves 409 Noble v. Ward 175, 177 Nordenfeldt v. Maxim Co. . . 148 Norfolk v. Arbuthnot 352 Norman v. Norman 530 v. Villars 30 Normanton Gas Co. v. Pope. . 421, 515 Norrington v. Wright 332 Xoii is c. Catmur 475 Northcote v. Doughty 16, 329 North Shore Ry. Co. v. Pion. . 349 Northumberland Avenue Hotel Co., Re 60 North Western Bank v. Poyn- ter 229 Norton v. Ellam 31S v. Levy 530 v. Powell 161 Nottage v. Jackson 439 Nottingham Brick and Tile Co. v. Butler 300 Notting Hill, The 339 Nouvion v. Freeman 521 Nowlan v. Ablett 326 Nugent v. Smith 238 Nuttall v. Bracewell 224, 349 Nyberg v. Handelaar 231, 449 O. Oddy v. Hallett 312 Ogden v. Hall 50 Ogle v. Atkinson 262 v. Vane 334 d2 Hi LIST OF CASES CITED. PAGE Oglesby r. Yglesias 50 Ohrby v. Ryde Improvement Commissioners 388 Oliver v. Horsham Local Board 387 v. Hunting 107 Ollivant v. Bayley 193 Omichund v. Barker 158 O'Neil v. Armstrong 221 v. Everest 3S5 O'Neill v. Longman 151 Onslow v. Eames 186 Opera, Limited, In re 132 Oppenheim v. White Lion Co. 235 Opperman v. Smith , 275 Oriental Financial Corporation v. Overend 309 Orme v. Young 309 Ormerod v. Todmorden 349 Ormrod v. Huth 188, 435 Orr-Ewing, In re 524 Orton v. Butler 456 Osborn v. Gillett 428, 471 Osborne v. Jackson 393 v. L. & N. W. By. Co. 374 O' Sullivan v. Thomas 166 Ottaway v. Hamilton 37 Outram v. Morewood 530 Over-Darwen v. Lancaster . . 516 Overton v. Hewett 43 Owen v. Burnett 244 v. Cronk 50 v. Davis 20 v. Homan 309 v. Thomas 90 Oxenhope Local Board v. Brad- ford 515 Oxford (Mayor) v. Crow 24 Oxlade v. N. E. Ry. Co 239 Packer v. Gillies 452 Pagani, In re 20 Page, In re 320 • v. Hayward 153 r. Morgan 102 Paice v. Walker 49 Paley v. Garnett 393 Palliser v. Gurney 32 Palmer v. Fletcher 354 • v. Hummerston 467 t\ Mallett 148 v. Wick Shipping Co.. 489 Palyart v. Leckie 213 Panama Co. v. India Rubber Co 45 Pandorf v. Hamilton 171 Panmure, Ex parte 59 PAGE Pape v. Westacott 41 Papillon v. Brunton 82 Paradine v. Jane 171 Pardington v. South Wales Ry. Co 242 Parker, In re, Morgan v. Hill 312 v. S. E. Ry. Co 250 v. Staniland 94 v. Wallis 101 Parkinson v. Collier 179 r. Lee 193 Parkyns v. Preist 515 Parmeter v. Todhunter 211 Parnaby v. Lancaster Canal Co 388 Parr v. Bradbury . . 43 Parry v. Hazell, Doe d 82 v. Smith 473 Parsons v. Alexander 165 v. St. Matthew 388 Partridge v. Scott 421 Pasley v. Freeman 428, 473 Paterson v. Gandasequi 46 v. Powell 213 Pateshall v. Tranter 186 Patience, In re 523 Patman v. Harland 300 Patscheider v. G. W. Ry. Co.. 249 Pattison v. Luckley 314 Pattle v. Anstruther 90 Pawsey v. Armstrong 66 Pay v. Sims 167 Payne v. Cave 4 v. Leconfield 41 v. Rogers 413 v. Wilson 231 Paynter v. Williams 125 Peachy v. Somerset 342 Peacock v. Purvis 272 v. Reignal 459 v. Young 363 Pearce, In re 447 ■ v. Brooks 126, 141 v. Foster 324 v. Lansdowne 392 v. Scotcher 478 Peareth v. Marriott 530 Pearson v. Pearson 149 v. Seligman 430 v. Skelton 489 Peate v. Dicken 161 Pedley v. Morris 459 Peek v. Derry 195 v. Gurney 430, 474 v. North Staffordshire Ry. Co 239 Peer v. Humphrey 452 Pegram v. Dixon 393 Peice r. Corr 92 LIST OF CASES CITED. liii PAGE Pelton v. Harrison 28, 32 Pendarves v. Monro 353 Pendlebury v. Greenhalgh . . 386 Penley v. Anstnither 479 Pennefather v. Pennefather . . 527 Penryn r. Best 151 Penson v. Lee 212 Penton v. Robart 277 Pepper v. Burland 222 Perls v. Saalfeld 14 7 Perrin v. Lyon 153 Perry v. Barnett 166 v. Eames 352 Perryrnan v. Lister 481, 487 Peter v. Compton 96 Peters v. Fleming - 10 Peto v. Blades 190 Petrel, The 397 Phelps v. Comber 267 v. Hill 214 v. L. & N. W. Ry. Co. 248 - — - — - v. Upton Highway Bd. 25 Phenes' Trusts, In re 527 Philips v. Biggs 489 Phillips v. Caldeleugh 197 ■ v. Eyre 520 ■ v. Foxall 308, 326 v. Henson 272 v. Innes 161 ■ v. Jansen 459 v. L. & S. W. Ry. Co. 493 v. Low 354 Philpott v. Kelley 456 Picard v. Hine 29 Pickard v. Sears 533 Pickering's Claim, In re 49 Pickering r. Dowson 188 Pickering Board v. Barry .... 515 Pickford v. Grand Junction Ey. Co 239 Pictou Municipality v. Gel- dert 387 Pidcock v. Bishop 308 Piercy v. Young 146 Piggott v. Birtles 274 v. Stratten 183 Pigot's Case 314 Pigot v. Cubley 455 Pike v. Fitzgibbon 27, 28 v. Ougley 49, 179 Pilcher v. Stafford 477 Pilot v. Craze 43 Pinnd'a Case 303 Pirie v. Middle Dock Co 218 J'iit v. Laming, Doc d 292 Pittam v. Foster 29 Pittard r. Oliver 467 Planche v. Oolbum 221 Plating Co. v. Farquharson . . 136 PAGE Plummer v. Wildman 218 Polglass v. Oliver 306 Polini v. Gray 507 Pollard v. Bank of England . . 129 ■ v. Photographic Co... 9, 439 Pontida, The 40 Pontifex v. Bignold 435 Pouting v. Noakes 358, 379 Poole v. Huskinson 511 Pooley v. Driver 66 Pope v. Porter 332 Poplett v. Stockdale 142 Poppleton, Ex parte 138 Popplewell v. Hodkinson. .350, 420 Porteus v. Watney 170 Potter v. Duffield 90 v. Faulkner 396 v. Jackson 71 r. Metropolitan Ry. Co. 495 Potts v. Bell 135 v. Smith 352 Poidteney v. Holmes 95 Poulton, Ex parte 437 v. L. & S. W. Ry. Co.. 404 Pounder v. N. E. Ry. Co 368 Poussard v. Spiers 172 Powell v. Chester 199 v. Edmunds 105 r. Fall 361,416 ■ v. Hoyland 21 Power v. Barham 184 v. Salisbury 360 v. Whitmore 218 Powers v. Bathurst 512 Powles v. Hider 407 Powley v. Walker 125 Pownal v. Ferrand 124 Praed v. Graham 461, 493 Praeger v. Bristol and Exeter Ry. Co 370 Prehn v. Royal Bank of Liver- pool 334 Presland v. Bingham 352 Preston v. Luck 8 Pretty v. Bickmore 413 Previdi v. Gatti 395 Price v. A 1 Ships' Association 219 v. Barker 307 v. Green 148 v. Hewett 17 v. Torrington 505 ■ r. Worwood 291 Priestley, In re lis v. Fowler 389 I'riestman v. Thomas 539 Pring v. Pearsley, Doe d 511 Printing Co. v. Sampson .... 134 Prior v. Moore 41 Proctor v. Sargent lis liv LIST OF GASES CITED. PAGE Proctor v. Webster 467 Protector Loan Co. v. Grice . . 342 Proudfoot v. Hart 338 v. Montefiore 197 Prudential Assurance Co. v. Edmonds 526 Pughr. Arton 277 Pulbrook, Ex parte 465 Pulling v. G. E. Ry. Co 495 Pullman v. Hill 459 Purcell, In re 447 Pye, Ex parte 280 Pyke, Ex parte 166 Pym v. Campbell 175 . v. G. N. Ry. Co 494 Q. Quarman v. Burnett 64, 400 Quartz, &c. Co. v. Beall 459 v. Eyre 485 Quenerduaine v. Cole 6 Quitter v. Mapleson 207, 292 Quincey v. Sharp 317 Quinlan v. Barber 471 R. Radley v. L. & N. W. Ry. Co. 375 Rainbow v. Juggins 311 Rainsford v. Eenwick 13 Ralph v. Harvey 68 Rambert v. Cohen 106 Ramsay v. Gilchrist 289 Ramsden v. Yeates 515 Ramsgate Hotel Co. v. Monte- fiore 6 Ramskill v. Edwards .... 312, 489 Randal v. Cockran 495 ■ v. Payne 153 Randall v. Moon 304 v. Newson 192, 372 Raper v. Birkbeck 315 Raphael v. Bank of England.. Ill — v. Burt 189 Rapier v. London Tramways Co 416, 422 Ratcliffe v. Evans 460 Rawlins v. Wickham 69 Rawlinson v. Clarke 182 Rawson v. Eicke 75 Ray v. Wallis 394 Rayuer v. Grote 59 Rayson v. South London Tramways Co 483 Read v. Anderson 166 PAGE Read v. Bonham 211 v. Edwards 360 v. Goldring 306 r. G. E. Ry. Co 494 v. Legard 19 v. Lincoln (Bishop) .... 502 Reade v. Conquest 435, 438 Reader v. Kingham 87 Readhead v. M. Ry. Co 367 Reddie v. Scoolt 427 Redfern v. Redfern 18 Redgrave v. Hurd . . 197, 431, 433 Reece v. Miller 478 Reed v. Deere 314 v. Jackson 530 v. Royal Exchange Co. . . 201 Reedie v. L. & N". W. Ry. Co. . 401 Rees v. Berrington 309 Reeves v. Butcher 318 Reg. v . Adams 461 v. Barker 512 v. Bedfordshire 501 v. Bennett 141, 528 v. Berger 502 v. Bliss 500 v. Brackenridge 539 ■ v. Briggs 527 v. Brown 168 ■ v. Buckmaster 168 v. Charnwood Forest Ry. Co 541 v. Cheshire 516 r. Chittenden 515 v. Clarence 142 v. Curgerwen 527 v. Dover 511 v. Druitt 151 v. Dukinfield 513 v. Duncan 514 v. Eardley 540 • v. Ellis 515 v. Essex 414, 515 v. Exeter 508 v. Gibbons 528 v. Hardey 471 v. Heyford 508 v. Ho'lbrook 409 v. Horton 528 v. Hulton 169 v. Hutchings 531 v. Ivens 236 r. Jackson 38 v. Justices of Central Cri- minal Court 451 v. Labouchere 461 v. Local Government Board 511 v. London 451, 461 v. London Justices .... 514 LIST OF CASES CITED. lv PAGE Reg. v. Lordsmere 514 v. Lumley 527 v. Moore , 528 • v. Pearson 477 v. Pedley 411 v. Perry 4G4 v. Poole 514 v. Pratt 510 v. Preedy 168 v. Price 158 v. Ramsay and Foote . . 157 v. Ramsey 461 v. Rymer 236 v. Scott 476 v. Shickle 272 v. Silvester 161 v. Sinclair 142 v. Southampton 514 v. Stephenson 158 v. Stoke-upon-Trent. ... 180 v. Surrey JJ 513 v. Swindall 376 v. Tolson 528 v. Turner 528 v. Wakefield 514 v. Wiltshire 527 v. Yates 461 v. Young 478 Reid v. Explosives Co 327 . v. Reid 31 v. Rigby 40 v. Wilson 162 Reinhardt v. Mentasti 423 Renno v. Bennett 323 Renpor, The 216 Reuss v. Picksley 91 Revell, Ex parte 509 Rex v. Abington 462 v. Antrobus 501 v. Batt 151 v. Cross 515 v. Moore 366 • v. Pease 414 v. Welford 323 v. Whitnash 161 V. Williams 156 ■ v. Woodhurst 327 v. Woolaton 156 v. Younger 160 Reynell V. Lewis 68 Reynolds v. Bridge 313 . v. Doyle 319 Rhodes, In re 20, 527 v. Bate 281 v. Forwood 173 v. Moules 67 v. Smcthurst 319 . Darby 81 Ripon v. Hobart 424 Rishton v. Whatmore 107 Rist v. Faux 426 Rivaz v. Gerussi 209 River Steamer Co., In re .... 317 Riviere's Trade Mark, Re ... 437 Robarts v. Tucker 536 Robb v. Green 9 Roberts v. Havelock 221 v. Holland 301 v. Macord 352 V. Orchard 178 v.Owen 193 . v. Richards 350 v. Woodward 109 Robertson v. Amazon Co 194 v. Macdonogh , 126 Robins v. Cubitt 394 v. Gray 235 lvi LIST OF CASES CITED. TAGE Robinson v. Cowpen Local Board 511 ■ v. Davison 172 ■ v. Hindman 325 v. Jones 467 v. Kilvert 423 v. Learoyd 83 v. Lynes 30 ■ v. Nahon 38 v. Ommanney 155 • v. Ward 227 Robson r. Edwards 351 v. Godfrey 222 v. N. E. Ry. Co 370 Rochdale v. Lancashire Jus- tices 515 Rodger r.Comptoir d'Escompte de Paris 183 Rodriquez v. Tadmire 485 Rodwell v. Phillips 94 Roe v. Mutual Loan Fund ... 540 v. Tranmarr 181 Roffey v. Henderson 223 Rogers v. Allen 504 v. Cadwallader, Doe d. 74 v. Drury 148 • v. Ingham 131 ■ v. Lambert 228, 537 ■ v. Maddocks 148 ■ v. No-will 435 v. Rice 292 Rohde v. Thwaites 260, 262 Romford Canal Co., In re ... . 538 Roope v. D'Avigdor 470 Rooth v. "Wilson 360 Roots p. Snelling 431 Roper v. Johnson 331 Roscorla v. Thomas 123, 188 Rose v. Bank of Australasia. . 218 v. Cunynghame 90 v. Miles 422 v. N. E. Ry. Co 370 Rosevear China Clay Co., Ex parte 266 Rosewarne v. Billing 166 Rose well v. Prior 411 Ross v. Fedden 360 v, Parkyns 66 Rossiter v. Miller 8, 89 Rourke v. Mealy 13S v. White Moss Colliery Co 396, 408 Rouse v. Bradford Banking Co 69, 309 Roussillon v. Roussillon . .148, 518 Routledge v. Grant 4 Roux v. Salvador 210 Rowbotham v. Wilson 420 Rowlands r. De Vecchi 509 PAGE Rowlands v. Evans 69 v. Samuel 484 Royal Aquarium v. Parkinson 464 Royal Mail Steam Packet Co. v. English Bank of Rio de Janeiro 218 Roylance v. Lightfoot, Doe d. 74 Royle v. Busby 447 Rucker v. Cammeyer 92 Ruddiman v. Smith 406 Ruddy v. M. G. W. Ry. Co. . . 241 Ruel v. Tatnell 459 Rugg v. Minett 99, 261 Rumball v. Metropolitan Bank 112 Rushforth v. Hadfield 162 Russell, Ex parte 287 v. Dabandeira 222 - — ■ — - v. Lee 13 v. Men of Devon 386 v. Russell 70, 95, 144 ■ v. Shenton 413 v. Waterford Rv. Co. . . 540 v . Watts 354 Ryan v. Sams 38 Ryder r. Wombell 11 Ryley v. Brown 539 S. S. v. S 470 Sadler, In re 537 ■ • v. South Staffordshire Tramways Co 361 Sainsbury v. Mathews 94 Sainter v. Ferguson 148, 341 St. Helens Smelting Co. r. Tipping 423 St. Helens Tramways Co. v. Wood 409 Sale v . Lambert 89 Salford Corporation v. Lever. . 46 Salomons v. Knight 460 Salvin v. North Brancepeth Coal Co 423, 425 Sampson v. Easterby 298 Sandeman v. Scurr 41 Sanders v. Davis 74 Sanderson v. Piper 177 Sandford v. Clarke 82, 385, 412 Sandilands v. Marsh 67 Sandiman r. Breach 161 Sandon v. Jervis 446 Sandwich v. G. N. Ry. Co. . . 349 Sandys v. Florence 384 Santos v. Illidge 156, 517 Sarch v. Blackburn 359 Sarson v. Roberts 199 LIST OF CASES CITED. lvii PAGE Saunders v. Newman 350 Sannderson v. Jackson 91 Savage v. Madder !65 Sayers v. Collyer 301 Scaramanga v. Stamp 213 Scarf v. Jardine 69, 534 Scarf e v. Morgan 160 Scarlett v. Hanson 447 Scattergood v. Sylvester .... 451 Scheffer v. Washington Ry. Co 365 Schmaltz v. Avery 60 Schneider v. Heath 433 Scholefield v. Robb 186 Scholfield v. Londesborough . .112, 536 Schotsmans v. L. & T. Ry. Co. 266 Schroeder v. Central Bank of London 296 Schulze v. G. E. Ry. Co 337 Scotland, Royal Bank of v. Tottenham Ill Scott v . Averv 143, 145 v. Brown 138, 443 v. Clifton School Board.. 26 v. Dixon 430 v. Ebury 60 v. London Docks Co 370 v. Mercantile Accident Insurance Co 144 v. Morley 32 v. Pape 353 v. Sampson 460, 505 v. Sebright 22 ■ v. Seymour 520 v. Shepherd 362 v. Stansfield 462 v. Lxbridge and Rick- mansworth Ry. Co 306 Seaman v. Netherclift 462 Sear v. House Property Co. . . 292 Searle v. Laverick 231 Searles v. Scarlett 459, 465 Sears v. Lyons 348 Seath v. Moore 260 Seaton v. Benedict 34 Seddon v. Bank of Bolton. . . . 352 Seear v. Cohen 21 Selby v. Jackson 20 v. Selby 91 Sellorsf. Matlock Bath Local Board 4S0 Semayne v. Gresham 444 Senior v. Ward 391 & rgi ant, Ex parte 113 Serrao v. Noel 5 1 Seton '■. Lafone 232, 537 Sewell v. Burdick 269 Seymour v. Bridge 166, 180 PAGE Seymour v. Greenwood 409 Shadwell v. Shadwell 119 Shaffers v. General Steam Navigation Co 393 Shakespear, Re 31 Sharman v. Brandt 92 Sharp v. Powell 362 v. Waterhouse 300 Shaw v. Benson 138 v. G. W. Ry. Co 246 v. Morley 108 r. Port Philip Gold Mining Co 540 Sheen v. Bumpstead 504 Sheffield v. London Joint Stock Bank 112 Sheldon i'. Cox 120 Shelf er v. City of London Elec- tric Lighting Co , 416 Shelton v. Springett 126 Shen^tone v. Hilton 231 Shepherd v. Harrison 263 v. M. Ry. Co 371 Shepley v. Davis 260 Sbeppey L T nion v. Elmley Overseers 512 Sherbon v. Colebach 164 Sherwood v. Sanderson 19 Shield, In re 284 Shiells v. Blackbui-ne 227 Shilling v. Accidental Death Insurance Co 201 Shirley v. Stratton 433 Short v. Kalloway 124 v. Stone 331 Shotts Iron Co. v. IngUs .... 423 Shower v. Pilch 279 Shrewsbury Peerage Case .... 502 Sibree v. Tripp 303 Siddons v. Short 418 Sievewright v. Archibald .... 92 Siftken v. Wray 265 Sigourney v. Llovd 112 Sillem v. Thornton 206 Simkin v. L. & N. W. Ry.Co. 371 Simmonds, Ex parte 132 Simmons v. Lilly stone 455 r. Mitchell 458, 459 v. Swift 261 Simons v. G. W. Ry. Co 241 Simpson v. Bloss 139 v. Crippin 331 v. Hartopp 269 v. L. & N. W. Ry. Co 337 v. Nicholls 161 c. Thompson 495 Sims v. Landray 92 v. Marryat 189 lviii LIST OF CASES CITED. PAGE Sinclair v. Bowles 221 Siner v. G. W. Ry. Co 370 Singer Co. v. Clark 230 v. L. & S. W. Ry. Co 249 ■ v. Wilson 435 Singleton, Ex parte 296 r. Eastern Counties Ry. Co 379 Skeet v. Lindsay 317 Skelton v. L. & N. W. Ry. Co. 371 v . Wood 45 Skinner v. City of London Marine Insur- ance Co 339 v. Kitch 151 v. L. B. & S. C. Ry. Co 370 v. Weguelin 42 Sleddon v. Cruickshank 261 Slipper v. Tottenham Ry. Co.. 292 Sloman v. Walter 342 Slubey v. Hey ward 268 Smethurst v. Mitchell 50 Smith v. Andrews 502 v. Bailey 407, 515 v. Baker 192, 393, 395 v. Bank of Scotland . . 310 v. Chad wick 195, 430 v.Cook 232 v. Darlow 447 v. Drury 284 v. G-oss 267 v. Green 335 v. Hancock 149 . V.Hudson 102 . v. Keal 447 v. Kenrick 361 v. King 15 v. Landand House Pro- perty Corporation.. 430 v. London & St. Katha- rine Docks Co.. 385, 411 v. L. & S. W. Ry. Co 365, 415 v. Lucas 15 . v. Marrable 198 v. Mawhood 137 . v. Mules 69 v. Neale 190 . v. Reynolds 180 . v. Smith 283 • v. Sarman 94 . v. Thackerah 418 v. Thorne 317 v. West Derby Local Board 479 . v. Wheatcroft 130 v. Wilson 180 PAGE Smith v. Wood 137 v. Woodfine 330 Smith and Service, In re .... 144 Smout v. Ilberry 35, 38 Sneesby v. L. & Y. Ry. Co. . . 363 Snelgrove v. Bailey 283 Snow v. Hill 168 r. Whitehead 349 Snowden, In re 312 v. Baynes 394 Soar v. Ashwell 320 Societe des Asphaltes v. Farrell 458 Solomon v. Vintners Co 419 Soltau v. De Held 421 Soltykoff, In re 13 Sottomayer v. De Barros .... 519 Soutar's Policy Trust, In re. . 201 South American & Mexican Co., In re, Ex parte Bank of England 530 South Hetton Coal Co. v. N. E. News Association.. . .459, 464 South of Ireland Colliery Co. v. Waddle 23 South Staffordshire Tramways Co. v. Sickness and Accident Assurance Co 202 Southampton v. Brown 49 Southcote v. Stanley 383 Southwell v. Bowditch 49 v. Scotter 295 Sowerby v. Coleman 181 Spacktnan v. Foster 456 Spain v. Arnott 323 Spalding v. Ruding 268 Sparrow v. Paris 341 Speight v. Oliviera 427 Spencer v. Bailey 300 v. Clark 297 v. Parry 124 v. Slater 2S8 Spice v. Bacon 234 Springett v. Balls 494 Springhead Spinning Co. v. Riley 151 Squire v. Wheeler 234 Stackpole v. Beaumont 153 Stafford v. Coyney 512 v. Till 24 Stamford Banking Co. v. Smith 318 Standing v. Bowring 284 Standish v. Ross 129 Staniland v. Willott 282 Stanley v. Dowdeswell 8 v. Jones 135 v. Riky 224 Stanton v. Scrutton 393 Stapley v. L. B. & S. C. Ry. Co 370 LIST OF CASES CITED. lix PAGE Stead v. S;ilt 67 Stedman v. Hart 19 Steeds v. Steeds 304 Steele. Dixon 312 • v. Lester 64, 407 v. State Line Steamship Co 21.5 Steele v. Buchart 376 v. Gourley 43 Stein v. Cape 41 Stephens, In re 319 v. Elwall 455 Sterner. Beck 343 Stevens v. Biller 55, 162 v. G-. W. By. Co 243 v. Hounslow Burial Board 23 ■ v. Sampson 465 v. Woodward 406 Stevenson v. McLean v. Snow 212 Steward v. Blakeway 64 v. Gromett 484 Stewart v. Merchants' Marine Insurance Co 183 St. Helens Tramway Co. v. Wood - 409 Stikeman v. Dawson 17 Stimpson v. Wood 494 Stockton Iron Furnace Co., In re 75 Stoddart v. Sagar 169 Stogdon v. Lee 31 Stokell v. Niven 90 Stokoe v. Singers 353 Stone, Be 66 v. Hyde 395, 479 v. Marsh 471 Stoomvaart v. B. & O. Steam- ship Co 376 Storey v. Ashton 406 Stott v. Faiiiamb 121 Strachan v. Universal Stock Exchange, Limited 1 65 Strauss v. County Hotel Co. . . 237 Street v. Blay 186 Stribley v. Imperial Marine Insurance Co 209 Strick v. Swansea Tin Blate Co 151 Strickland v. Turner 171 Strong v. Harvey 306 B 11 463 r. Evans 394 Studdfl v. Wat, mi 108 Sturgea v. Bri Igman 424 S rla v. Frei cia 501, 503 v. Bank of England .. 314 Sullivan v. Bishop 83 PAGE Sullivan v. Mitcalfe 435 Sunniside, The 216 Surcome v. Pinniger 108 Surplice v. Farnswortk 199 Sussex Peerage Case 507 Sutcliffe v. Booth 350 Sutherland v. Heathcote .... 224 Sutton's Trusts, Re 296 Sutton v. Darke 442 v. Grey 86 v. Tatham 180 Svensden v. Wallace 218 Swain v. Shepherd 262 Swainson r. N. E. By. Co. . . 390 Swan v. North British Austra- lasian Co 535 Swann v. Phillips 429 Swansborough v. Coventry . . 354 Swanwick v. Sothern 261 Sweet v. Sweet 29, 31 Swift v. Jewsbury . . , 45 v. Roberts 78 Swindon Waterworks Co. v. Wilts. Canal Co 349 Swinfen v. Chelmsford . . . .43, 126 ■ v. Swinfen 43 Swire v. Francis 45 Sydney Mercantile Bank v. Taylor 175 Sydnev Municipal Council v. Bourke 387, 514 Syeds v. Hay 455 Syers v. Syers 66 Synge v. Synge 119, 330 Tadman v. Henman 273, 538 Talley v. G. W. Bv. Co 247 Tallis v. TalUs.. 148 Tancred v. Delagoa Bay Co. . . 295 v. Leyland 4 12 Tanham v. Nicholson 82 Tanner v. Smart 316 Tansley r. Turner 261 Tapling v. Weston 271 Tarling v. Baxter . .257, 261, 263 Tarry v. Ashton 410 Tasmania Bank v. Jones .... 309 Tatam r. Reeve 166 Tate v. Hilbert 282, 283 v. Hyslop 209 Taylor, Ex parte II, 66 — - — Re 283 v. Ashton 130 v. Bank of New South Wales 308 v. Bowers 139 lx LIST OF CASES CITED. PAGE Taylor i'. Caldwell 170 v. Chambers 452 v. Chester 139 . v. G. N. Ry. Co 239 r. Johnston 281, 282 . v. M. S. & L. Ry. Co.. 474 — v. Sinetten 1 68 v. Smith 102, 107 v. "Wakefield 102 Temperton v. Russell .... 150, 491 Tempest v. Fitzgerald 100 Tenant v. Goldwin 357 Tennant, Ex parte 66 Terry v. Brighton Aquarium Co 162 V. Hutchinson 425 Thacker v. Hardy 167 Tharsis Sulphur Co. v. McEl- roy 222 Thol v. Henderson 339 Thomas v. Birmingham Canal Co... 360, 371 . v. Cook 87 v. Day 231 v. Hayward 299 v. Lewis 41 ■ v. Quartermaine 395 v. RhymnevRy. Co.. .397, 475 v. Thomas 527 Thomas Joliffe, The 490 Thompson, In re 502 , v . Belfast Rv. Co. 370 _ . „. Birkley 428 v. Brighton (Mayor) 387 . v. Hakewill 77 v. Hervey 36 r. Hodgson 283 v. Hudson 343 v. Lacy 236 Thomson v. Weems 203 Thorn v. London 170, 194 Thornborow v. Whitacre .... 118 Thome v. Heard 45, 320 Thornewell r. Johnson 300 Thornton v. Illingworth 318 Thorogood v. Bryan 377 Thorp v. Dakin 541 Thorpe r. Brnmfitt 424 v. Coleman 165 Threfall v. Bowick 235 Thrussell v. Handrside . . 374, 395 Thwaites v. Wilding 273, 443 Thyatira, The 539 Thynne v. Glengall 108 Tidd, In re, Tidd v. OvereU. . 227, 319 Tillett v. Ward 360, 515 PAGE Timmins v. Rawlinson 83 Tindall, Be 527 v. Bell 124 v. Castle 301 Todd v. Emley 43 v. Flight 410 v. Kerrick 326 Tollemache, In re, Ex parte Edwards .... 509 , In re, Ex parte Revell 509 Tomlinson v. Consolidated, &c. Corporation 275 Tompson v. Dashwood 464 Toogood v. Spyring 464 Tootall's Trusts, In re 523 Towerson v. Jackson 75 Townley v. Crump 103 Townsend v. Crowdy 129 Trade Auxiliary Co. v. Mid- dlesbrough Association . . . 439 Trainor v. Phoenix Fire Insur- ance Co 144 Trappes v. Harter 278 Tredegar Iron and Coal Co. v. Gielgud 339 Treloar v. Bigge 292 Trevor v. Whitworth 27 Trimbey v. Vignier 517 Trimble v. Hill 165 Trinidad (Att.-Gen.) v. Eriche 530 Tripp v. Armitage 105 Tritten, Re 296 Troughton, In re 287 Truefort, In re, Trafford v. Blanc 524 Trueman v. Loder 176 Tubervil v. Stamp 417 Tuck v. Priester 9 Tucker, In re 322 r. Linger 181 v. Vowles 301 v. Wdson 229 Tuff v. Warman 375 Tulk v. Moxhay 300 Tullis v. Jacson 134 Tunbridge v. Sevenoaks 512 Turley v. Bates 261 Turnbull v. Forman 31 Turncock v. Sartoris 144 Turner, In re 509 r. Cameron 278 v. Caulfield 38 v. Frisby 13 v. Goldsmith 173 v. Hockey 456 v. L. & S. W. Ry. Co. 304 v. Mason 322 v. Rookes 37 LIST OF CASES CITED. lxi PAGE Turner v. Thomas 54 v. Thompson 524 v. Turner 132 Tweddle v. Atkinson 122 Twycross v. Grant 435 Twyne's Case 285 Tyler v. Bennett 94 v. L. & S. W. Ry. Co. . . 453 Tyrie v. Fletcher. 212 U. Udell v. Atherton 45 Uhde v. Walters 180 Ultzen v. Nicols 226 Ulysses, Cargo ex 217 Underhay v. .Read 75 Underwood v. Underwood .... 304 Union Steamship Co. v. Cla- ridge 396 Union Steamship Co. of New Zealand v. Melbourne Har- bour Commissioners 480 United Land Co. r. Tottenham Board of Health 513 Universal Stock Exchange v. Stevens 167 Urmston v. Whitelegg 150 Urquhart v. Barnard 214 ■ v. Butterfield 523 Uzielli v. Boston Marine In- surance Co 211 Vadala v. Lawes 521, 532 Vagliano v. Bank of England. Ill, 535 Valentini v. Canali 14 Vallance, Re 126 Valpy v. Oakely 334 Vance v. Lowther 314 Vandenbergh v. Spooner .... 89 Vanderburgh v. Truax 365 Vander Donckt v. Thellusson . 521 Vansittart, In re 287 ■ v. Vansittart 29 Van Toll v. S. E. Ry. Co 243 Varney v. Hickmau 165 Vaucher v. Solicitor to the Treasury 624 Vaughan v. Menlove 417 r. Tail Vale Rv. < '». 4 13, 124 ■ v. Vanderstegen .... 30 Vaujrhtoii p.L. & N. W. Ry. < ■.. 246 PAGE Vaux v. Newman 440 Veal v. Veal 283, 284 Venables v. Baring 112 v. Smith 407 Vere v. Ashby 68 Vernon v. Hallam 149 v. Smith 298 v. Vestry of St. James. 416, 510, 514 Verry v. Watkins 427 Vibert v. Eastern Teleg-raph Co 326 Vicars v. Wilcocks 491 Victorian Railway Commis- sioners v. Coultas 365 Viney r. Bignold 144 Voisey, Ex parte 75 Vy\ van v. Arthiu* 298 W. Waddilove v. Barnetfc 75 "Wadsworth, Re 163 WagstafE v. Shorthorn Dairy Co 186 "Wain v. Warlters 88 Wainwright v. Bland 201 Wait v. Baker 103 Waite v. Morland 29 v. N. E. Ry. Co 377 W 7 aithman v. Wakefield .... 37 Wake v. Hall 27S Wakefield v. Newton 21 Wakelin v. L. & S. W. Ry. Co 370, 376 Walker, In re, Sheffield Bank- ing Co. v. Clayton. 311 v. Brewster 366, 423 v. G-. N. Ry. Co 494 v. G. W. Ry. Co 40 v. Hirsch 64 v. Hobbs 19S v. Matthews 451 v. M. Ry. Co 384 v. Nussey 103 Wall v. Martin 438 v. Taylor 438 Wallace v' Breeds 260 v. Kelsall 304 Waller v. Loch 463 Walliugton v. Hoskins 515 Wallis v. Littel 175 v. Smith 343 Walrond v. Walrond 29 Walsby v. Anley 151 Walsh v. Lonsdale 80 v. Walley 326 v. Whiteley 393 lxii LIST OF CASES CITED. PAGE Walter, In re 30 v. Everard 12, 13 v. Howe 439 v. Selfe 423 v. Steinkopff 439 Wanless v. N. E. Ry. Co 370 Ward v. Audlaud 284 v. Day 291 v. Hobbs 185, 433 v. Lloyd 138 p. National Bank of New Zealand . . 309 v. Turner 283 p. Weeks 492 Warlow v. Harrison 4 Warminster Local Board, In re 512 Warner v. McKay 54 v. Riddiford 486 Warren v. Murray 320 Warrington v. Early 314 Warwick v. Bruce 94 Washburn v. Burrows 94 Watkin v. Hall 459 Watkins v. Rymill 250, 399 Watney v. Wells 69 Watson v. Clark 215 v. England 526 v. Threlkeld 38 1). Woodman 322 Watteau v. Fen wick 40, 50 Watts v. Eriend 99 Waugh v. Carver 62 Way v. G. E. Ry. Co 246 Weall v. James 67, 530 Weaver, In re 18,19, 20 v. Belcher, Thunder d. 73 Webb v. Beavan 458 . v. Bird 354 v. East 463 v. Plummer 178 v. Smith 162 v. Tarrant 391 Webber v. Lee 95 Weblin v. Ballard 394 Webster, Ex parte 447 . v. Armstrong 540 r. British Empire Assurance Co. . . 339 Weeks v. Propert 59 Wegg-Prosser v. Evans 530 Weigall v. Waters 199 Weir v. Bell 45 Welby v. West Cornwall Ry. Co 399 Welch v. Anderson 334 v. L. & N. W. Ry. Co. 249 Weldon v. De Bathe 458 Weller v. L. B. & S. C. Ry. Co. 370 PAGE Wellock v. Constantine 468 Wells v. Abrahams 467 v. Hopwood 219 v. Kingston-upon-Hull. . 23 Wenhak v. Morgan 459 Wenlock (Baroness) v. River Dee Co 26, 140 Wennall v. Adney 126 Wentworth v. Outhwaite .... 268 v. Tubh 20 West v. Blakeway 177 West of England Bank, In re. 140 West Riding Justices v. Reg.. 515 Western Counties Manure Co. v. Lanes, &c. Co 459 Western Suburban, &c. Co. v. Marten 146 Western Wagon Co. v. West. . 295 Westzinthus, In re 268 Whaite v. L. & Y. Ry. Co. . . 246 Whaley v. Pajot 165 Whalley v. L. & T. Ry. Co.. . 250, 361 Wharton v. Lewis 328 ■ v. McKenzie 12 v. Naylor 272 Whatley v. Halloway 394 Whatman v. Pearson 405 Wheaton v. Maple 352 Wheeldon v. Burrows 354 Wheeler v. Sargeant 280 Whincup v. Hughes 122 Whitaker, In re 283 v. Hales, Doe d 74 v. Howe 147 AVhitcher v. Hall 307, 488 Whitcomb v. Whiting 321 White, Ex parte 262, 478 v. Feast 477 v. Fox 477 v. France 384 v. G. W. Ry. Co 242 v. Hindley Local Board 387, 513 v. Jameson 413 v. Mellin 459 v. Spettigue 471 v. Wilks 260 Whitecross Wire Co. v. Savill. 217 Whitehead v. Anderson 267 v. Parks 350 Whiteley, In re, Ex parte Smith 64 & Roberts' Arbitra- tion, In re .... 144 • v. Pepper 413 Whitham v. Kershaw 339 Wickham v. Gatiill 470 v. Hawker 224 LIST OF CASES CITED. lxiii PAGE Wiedemann v. Walpole 329 Wigglesworth v. Dallison .... 178 Wiginore v. Jay 390 Wigsell v. School for Indigent Blind 339 Wild v. Harris 329 v. Waygood 394 Wilkins v. Bromhead 262 v. Day 364, 514 Wilkinson v. Calvert 81 v. Coverdale 227 v. Fairrie 384 ■ v. Hall 73 ■ v. King 452 v. Peel 275 v. Verity 318 Willesford v. Watson 146 Willetts v. Watt 393 Williams v. Bay ley 21 • ■ r. Carwardine 6 v. Davies 538 v. Earle 298 v. Evans 108 v. Jones 176, 417 v. Millington 449 v. Moor 15 v. Smith 459 v. Wentworth 19 v. Wheeler 92 v. Williams 158 Williamson v. Barbour 45 v. Freer 467 Willis v. Combe 447 Willyams v. Scottish Widows' Fund 528 Wilson, In re, Wilson v. Hol- loway 64 v. Brett 225 v. Duckett 213 v. Finch- Hatton 198 v. Ford 37 v. Hart 300 v. Jones 201 v. Merry 390, 391 v. Newberry 358 v. Owens 406 v. Queen's Club. ... 76, 354 ■ v. Strugnell 139 v. Tumman 490 Winchcombe v. Bishop of Winchester 159 Windhill Local Board v. Vint 21, 138 Wing v. Angravo 525 v. Harvey 204 r. Mill 1 25 Wingfield, Ex parte 262 Winspea c '■. Accidental Ins. < '<>. 203 Winter v. Brockwell 223 PAGE Winter v. Trimmer 342 v. Winter 280 Winterbottom v. Derby 422 v. Wright .... 473 Wise v. Wilson 323 Withers v. Henley 487 Withnell v. Cartham 501 Witt v. Amiss 283 Wogan v. Doyle 538 Wolfe v. Matthews 151 Wolmershausen, In re. . . .310, 321 v. Cullick. .312, 319 Wolveridge v. Steward 299 Wood v. Bell 261 v. Bowron 151 v. Durham 460 v. Fenwick 14 v. Leadbitter 222 v. Manley 223 v. Smith 185 v. Veal 511 v. Waud 349 Woodgate v. G-. W. By. Co. . . 250, 254 Woodley v. Metr. By. Co 391 Woods v. Russell 261 Woodward v. L. & N. W. By. Co 245 Worms v. De Valdor 519 Worth v. Grilling 359 Wren v. Weild 460 Wright v. G-. N. By. Co 370 v. Howard 350 v. Leonard 30, 37 v. Lethbridge 408 v. L. & N. W. By. Co.. 385, 396 v. Marwood 218 V. M. By. Co 399 v. Pearson 359 — v. Stavert 95 v. Vanderplank 280 Wyatt v. Hertford 50 v. White 482 Wylson v. Dunn 107 X. Xenos v. Wickham Ximenes v. Jaques 4 165 Yan Yean, The Yarmouth v. Franco .. .. 217 ,393, 395 lxiv LIST OF OASES CITED. PAGE Yarmouth Exchange Bank v. Blethen 541 Yates v. Evans 309 r. Finn 70 r. Jack 3.51 v. Pym 179 Yea v. Fouraker 318 York r. Grindstone 236 York Banking Co. v. Bain- bridge 309 Yorkshire Banking Co. v. Beatson 67 Yorkshire Railway Waggon Co. v. Maclure 140 PAGE Young v. Bankier Distillery- Co 349 v. Davis 386 ■• v. Grote 5'29 ■ v. Kitchen 296 v. Leamington 25 v. Macrae 459 v. Spencer 424 Z. Zagury v. Fumell 261 Zunz v. S. E. Ev. Co 243, 399 SHIRLEY'S LEADING CASES. winded to tear this Map out of the Booh {iffa own) and pin it up in some ct will constantly catch his eye. i place, where tfu Oasea CONTRACTS. Formation. . Cooke v. Oxley - - - - 1 „„ !, Jordan v. Norton - - - ( . Peters v. Fleming 1 ^ - Ryder v. Wombwell - - 1 . Baxter v. Portsmouth - - Ciua it 8. Pike v. Fitzgibbon - - - 0. Manby v. Scott - - - - [0, Montagu v. Benedict - - 11. Seaton v. Benedict - - - ] 2. Jolly v, Rees ----- 13. Smont v. Hberry - - - 14. Cox v. Midland Counties Ry. Co, - - - - - - 15. Cornfoot v. Fowke - - - it' Paterson v. Gandasequi - 17. Davenport v. Thomson - is. George v. Clagett - - - i». Collenv. Wright - - - -" Waugh v. Carver - - -, 21. Cox v. Hickman - - - 22. Keech v. Hall - - - - 23. Moss v. Gallimore - - - 24. Morley v. Bird - - - - 25. Rigge v. Bell - - - - 26. Clayton v- Blakey - - - 27. Birkmyr v. Darnell - - 28. Mountstephen v. Lakeman 28. Wain v. Warlters - - - 80. Crosby v. Wadsworth - • 3t. Peter v- Compton - - - 32. Baldey v. Parker - - - 33. Elmore v. Stone- - - - 34. Tempest v.Fitzgerald- - 33. Lee v- Griffin - - - - Husband mid wife Mxn tgagoi - Debt, default, or miscarriage - Memorandum or note in writing Int'.'i-i.-sts m i..r concerning lauds N< it t o he [ici-funned within a year Goods, &c. of the price of £10 Accept and actually receive Boydell v. Drumraond - - . Miller v. Race - - - - . Bickerdike v. Bollman - ■ Thornborow v. Whitacre - '. Lampleigh v. Brathwait - . Beaumont v. Reeve . Marriott v. Hampton Egerton v. Browulow . Collins v. Blantern - Pearce v. Brooks - Scott v- Avery - - Mitchel v. Reynolds Lowe v. Peers - - . Cowan v- Milbourne . Scarfe v. Morgan - Diggle v. Higgs - - . Taylor v. Caldwell - uiue.l ( Contracts contrary to public ...il.l... .. I R'-nlity i Interpretation and Operation. 53. Goss v. Nugent - - - - Written contracts and oral evidence. 64. Wigglesworth V. Dallison Wntti-ii mntracts and evidence of usage. 55. Roe v. Tranmarr - - - Construction of contracts. 66. Lopus v, Chandelor - - Wai 67. Hopkins v. Tanqneray - Warranty during treaty for sale. 68. Morley v, Attenborougb - Implied w.manty <>f title. 0'.'. Jones v. Just Implied » .u.i.ii-, 60. Behn v.BurneBS- - - - Warranties and representations, 01. Smith v. Marrable - - - J 1 "?"' 63 warranty on letting furnished 82. Hebdon v. WeBt - - - - ■ iy-i- Dalby v. India and London J Lir« insurance. Life Insurance Co. - - ) - I ... insurance, ■ U - Abandonment to IDnl.'lUllt.'l-. - Return ofpremium. - Devi ■ Darrell v. Tibbitts - ■ Carter v. Boehm -■ Roux v. Salvador . Tyrie v. Fletcher l. Scaramanga v. Stamp - CD. Whitecross WireCo, v.Savill Av 70. Cutter v. Powell - - - Suing 71. Wood v. Leadbitter - - Li.eu. 72. Coggs v. Bernard - - - 73. Wilson v. Brett - - - - 74. CalyesCase 75. Blower v. G. W. Ry. Co. - 76. Peek v. North Staff. Ry. Co. CONTRACTS-Interpretation and Operation-™,, //mW. 77. Morrittv. N- E. Ry.Co.- - - - Land Carriers Act 7«. Bunch v G. W. Ry. Co. - - - - Passengers' luggage. 79. Denton v. G. N. Ry, Co. - - - - i 80. Le Blanche v. L. & N. W. Sy. Co. | Tr " i " '" lj;!1,1 1 " , " , 81. Taxiing v. Baxter --_-.] 82. Acraman v. Morrice i Contract of sale. * ; (. Lickbarrow v, Mason .... tsti-i|^-«,rr-._. ,„ ;,-,,„, ,/„ si- Simpson v. Hartopp - - - - - ■; l M ,n^l,.^,i Im,.-- 85. Elwes v. Maw Agricultural fixtures. 86. Irons v. Smallpiece Gift, 87. Twyne'sCase ss Dumpor v. Symms Waiver of forfeiture. *'• Brice v. Bannister • - - - - Assignment of ch.- 00. Spencer v. Clark ----- 81. Cumber v. Wane - 92. Finch v. Brook - 83. Whitcherv. Hall- 84. Master v. Miller - 95. Aldous v. Cornwell 86, Tanner v. Smart - 97. Whitcomb v. Whiting 98. Turner v. Masoi B8. Atchinson v. Ba 100. Hochster v. De la Tour 101. Hadley v. Baxendale 102. Kemble v. Farren Discharge. . ■ ■•■■- Hirety. Mat.-nal ..It.T.Ltmi, vitut,.* written STEVENS AND SONS, LIMITED, LAW PTJBLISHEI CONTRACTS. -c. (dfjOTtrmtiaw of €oxdmzfa. OFFER AID ACCEPTANCE. Proposal may be retracted before Acceptance, COOKE v. OXLEY. (1790) [1.] [3 T. E. 653.] Oxley having a quantity of tobacco on hand proposed 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 there was no consideration for Oxley's promise to keep his offer open, he could retract it with impunity at any time before Cooke announced his assent to it («). (a) Although this case has been the declaration was held insufficient freely criticised by eminent authors because it did not allege that the in America, the "soundness of the defendant had actually left the principle it has established cannot offer open for acceptance as he now be questioned in this country. had promised. But see Pollock on The point raised is discussed in Contracts, p. 25 (y) (5th cd.) ; and Benjamin on Sale, p. 69 (4th ed.). p. 24 [a) (6th ed.). The case, how- The action was not on the promise ever, must not be read as supporting to keep the offer open, but for the the view that a tacit revocation is non-delivery of goods as upon a sufficient, complete bargain and sale ; and OFFER AND ACCEPTANCE. Considera- tion for proposal. Biddings at auc- tions. It is to be observed tbat if Cooke bad given Oxley sixpence for | keeping tbe offer open, or if be bad agreed to pay a higher price for tbe tobacco in consequence, there would have been a considera- \ tion for Oxley's promise, and be would have been bound by it. The case was followed in Eoutledge v. Grant (b) (where it was held that defendant having offered to buy a bouse in St. James's Street, and to give plaintiff six weeks for a definite answer, he might at any time during tbe six weeks, and before it was accepted, witb- | draw his offer), and it may be taken to be clear law tbat a mere proposal may be revoked at any time be/ore acceptance. If, however, the offer is made under seal it cannot be revoked ; even though unconimunicated to the person to whom it is intended to be made, it remains open for acceptance when he becomes aware of it, but if tbe promisee then refuses his assent tbe contract is avoided (c). It is on this principle that at an auction a bidding can be retracted any time before the hammer goes down (d). Till then there has been no acceptance of tbe bidder's proposal. An auctioneer who ; advertises the sale of certain goods does not by tbat advertisement alone enter into any contract or warranty with those who attend the sale that the goods shall be actually sold (e). But where a sale is advertised as without reserve, and a lot is put up and bid for, there is a binding contract between tbe auctioneer and tbe highest bidder tbat the goods shall be knocked down to him (/). Auction sales are now governed by sect. 58 of the Sale of Goods Act, 1893 (y letter, a subsequent letter which does not, in the ordinary course of the post, arrive until after the first letter has been received and answered (1). In such a case the contract is complete the moment the letter accepting the offer is posted, even though it never reaches its destination (Jc). The recent case of Henthorn v. Fraser (I) is a very good illustration of Henthorn the law applicable to the formation of contracts by letters sent v. Fraser. through the post. H., who lived at Birkenhead, called at the office of a land society in Liverpool, to negotiate for the purchase of some houses belonging to them, and the secretary signed and handed to him a note giving him the option of purchase for fourteen days at 750/. On the next day the secretary posted to H., between twelve and one o'clock, a withdrawal of the offer, which reached Birken- head at 5 p.m. In the meantime H. had, at 3.50 p.m., posted to the secretary an unconditional acceptance of the offer, which was delivered in Liverpool at 8.30 p.m., after the society's office had closed, and was opened by the secretary on the following morning. It was held that a binding contract was made on the posting of H.'s acceptance, that the revocation of the offer was too late, and that H. was entitled to specific performance ; and the rules of law governing the case were stated to be : (1) That where the circum- stances under which an offer is made are such that it must have been within the contemplation of the parties that, according to the ordinary usages of mankind, the post might be used as a means of (h) Dickinson v. Dodds (1876), 2 (/,-) Dunlop v. Hig-gins (1848), 1 Ch. D. 4C3 ; 45 L. J. Ch. 777. H. L. 381 ; Household Fire In- (i) Byrne v. Van Tienhoven suranco Co. v. Grant (1879), 4 Ex. (1880), 5 0. F. D. 344 ; 49 L. J. C. Div. 216 ; 48 L. J. Ex. 577. P. 316 ; and Stevenson v. McLean (/) [1892] 2 Ch. 27 ; 61 L. J. Ch. (1880), 5 Q. B. D. 346 ; 49 L. J. 373. Q. B. 701. OFFER AND ACCEPTANCE. Contract by adver- tisement. communicating the acceptance of it, the acceptance is complete as soon as it is posted; (2) That in the present case, as the parties lived in different towns, an acceptance by post must have been within their contemplation, although the offer was not mado by post ; (3) That a revocation of an offer is of no effect until brought to the mind of the person to whom the offer was made, and that therefore a revocation sent by post does not operate from the time of posting it. The rule that the revocation of an offer must be received before the letter of acceptance is posted has been based upon different grounds, viz., (<*) that the post office is the common agent of both parties (m), or (3) that by general usage, the relation between the parties, or the terms of the offer, an acceptance through the post has been contemplated. It may also be supported on the ground of convenience. An offer by telegram is presumptive evidence that a prompt reply is expected, and an acceptance by letter may be evidence of such unreasonable delay as to justify a withdrawal of the offer (»). A proposer may not prescribe a time or form of refusal so as to bind the other party if he does not refuse in the specified time or form (o). If no time is limited for accept- ance, it must be communicated within a reasonable time (p). The death of the proposer before acceptance effects a revocation of the offer, although unknown to the other party. An offer need not be made to an ascertained person, but no contract can arise until it has been accepted by a definite person ; thus, an action can be maintained for a reward offered in an advertisement by any person who, though unaware of the reward ( J ance. mutual (2). An infant need not repay money lent to him, even though lent for Rashness the purpose of his buying necessaries with it ; for, as Parker, C.J., lending suggested in a case (a) of the kind, "it may be borrowed for infants. necessaries, but spent at a tavern, and therefore the law will not trust him but at the peril of the lender who must lay it out for (r) In re Soltykoff, Ex parte Pickering (1780), 2 Wm. Bl. 1325 ; Margrett, [1891] 1 Q. B. 413 ; 60 Brayshaw v. Eaton (1839), 5 Bing. L. J. Q. B. 339. N. C. 231 ; Foster v. Redgrave (*) Walter v. Everard, [1891] 2 (1866), L. R. 4 Ex. 35, n. 8 ; Ryder Q. B. 369 ; 60 L. J. Q. B. 738 ; v. Wombwell, must be considered quoting Russell v. Lee (1662), Lev. overruled on this point, decided by 86; Coke, Litt. 172; Vin. Ab. the court of first instance, L. R. 3 Enfant, c. (7). Ex. 90 ; 38 L. J. Ex. 8. (t) Turner v. Frisby (1794), 1 (x) See ante, 56 & 57 Vict. c. 71, Str. 168, and Rainsford v. Fenwick s. 2. (1671), Carter, 215 ; and see Ford (>/) Rosc.N. P. p. 598 (15th ed.). v. Fothennll (1795), Peake, 301. (z) Flight v. Bolland (1828), 4 (w) (1887), 19 Q. B. D. 509; 57 Russ. 298. L. J. Q. B. 6, following Barnes v. (a) Earle v. Peale (1712), 1 Salk. Toye (1884), 13 Q. B. I). 410; 53 386. L. J. Q. B. 567; Bainbridge v. 14 CAPACITY OF PARTIES— INFANTS. him." And see sect. 5 of 55 Vict. c. 4, post, p. 16. An infant who acquires railway shares is in the same situation as an infant acquiring real estate, and in an action for payment of calls the defence of infancy will not be sufficient unless it shows a repudiation of the shares (b). If an infant pays money under a contract which has been wholly or partly performed by the other party, he cannot by rescinding the contract recover the money back, though he might have done so if the goods had not been delivered or the contract otherwise wholly or partly performed, for the maxim quod fieri non debuit, factum valet will apply (c). By way of corollary to an infant's liability for necessaries, it has been said that he may be absolutely bound by a contract which is clearly for his benefit ; thus in Wood v. Fenwick {d), Lord Abinger, C.B., said, " There can be no doubt that, generally speaking, a contract by an infant to receive wages for his labour is binding upon him." So, too, in the recent case of Clements v. London and North Western By. Co. (e), an infant rail- way servant, who, as a condition of his service, entered an insurance society, established and contributed to by the railway company, and agreed to accept the benefits of the society in lieu of any claims under the Employers' Liability Act, was held bound by the agreement, as being for his benefit. On the other hand, however, in Flower v. London and North Western By. Co. (/), an agreement by an infant with a railway company, in consideration of being allowed to travel on special terms, to waive all claims by himself, his executors, administrators, or relatives, for accident, injury or loss to himself or his property on the railway, even if occasioned by negligence of the company's servants, and to indemnify the company against any such claim, was held to be detrimental to the infant, and therefore not binding on him. An agreement by a next friend not to appeal, on the understanding that the successful defendant would not ask for costs, was, in the recent case of Bhodes v. Swithenbank (•) (1880), 5C. P. D. 410; 49 L. J. C. P. 688. («) (1879), 4 C. P. D. 385. (0 Coxhead v. Mullis (1878), 3 C. P. D. 439; 47 L. J. C. P. 761. (w) 18 & 19 Vict. c. 43. lx) Duncan v. Dixon (1890), 44 Ch. D. 211 ; 59 L. J. Ch. 437. (v) Edwards v. Carter, [1893] A. C. 360 ; 63 L. J. Ch. 100 ; and sub mm. Carter v. Silber, [1892] 2 Ch. 278; 61 L. J. Ch. 401. This case also decided that, in order to establish the invalidity of an infant's repudiation of a contract after he comes of age, it is not necessary to show his knowledge of the facts and of his rights ; but that he must he treated as knowing the contents of the deed whether he knew them or not. (z) 55 Vict. c. 4. CAPACITY OF PARTIES— INFANTS. 17 payment in respect of such loan shall be deemed to be a part of such loan." An infant who enjoys a beneficial interest in property is liable Interest in to such obligations as are incident to such interest; e.g., if he is P ro P ert y. a shareholder he is liable to pay calls on his shares when he comes of age, unless he has previously repudiated the contract ; if he is a partner (although he cannot be made liable for partnership debts) he is bound by the partnership accounts as between himself and his partners ; and so if, being a lessee, he continues to hold land after coming of age, he is liable for arrears of rent accrued during his infancy (a). An infant is liable for a tort, but a breach of contract cannot be Torts, treated as a tort so as to make the infant liable ; the wrong must be more than a misfeasance in the performance of the contract ; it must be something quite outside the terms of the contract. Thus, in the case of Jennings v. Rundall (b), where an infant hired a mare to ride and injured her by over-riding, it was held that he could not be made liable for damages upon the contract by bringing the action in tort for negligence. But where an infant hired a horse for riding, and the plaintiff expressly refused to let it for jumping, and the infant lent it to a friend to use for jumping, and it was thereby killed, it was held that the infant was liable ; for, as Willes, J., said, "it was a bare trespass not within the object and purpose of the hiring ; it was doing an act altogether forbidden by the owner "(c). An infant innkeeper or carrier cannot be made liable in contract for the loss of goods entrusted to him in his business (rf). On this principle it was held that an infant could not be made liable for a false repre- sentation, at the time of making the contract, that he was of full age; but he might be liable to restore any advantage thereby obtained, and be bound by payments made or acts done on the faith of such representations. He may, however, be liable in equity on the ground that ' ' an infant may not take advantage of his own fraud," and since the Judicature Acts the rule of equity prevails. Compare Clarke v. Cobley (e) and Lempriere v. Lange (/). An Bankrupt, infant cannot be made bankrupt by a creditor under a voidable contract ( que trust, at a time when the latter was of unsound mind, he will be allowed credit for such sums of money (s). A contract made by a person of sound mind who afterwards (h) Read v. Legard (1851), 6 (?) (1838), 8 C. & P. 679 ; Niell Exch. Rep. 636 ; 20 L. J. Ex. 309. v. Morley (1804), 9 Ves. 478. But see per Brett, L. J., In re (r) [1892] 1 Q. B. 599 ; 61 L. J. Weaver, supra, at p. 620. Q. B. 449. (0) Molton v. Camroux (1848), 4 (s) Sherwood v. Sanderson (1815), Ex. 17; 2 Ex. 487: 18 L. J. Ex. 19 Ves. 280; Williams v. Went- 68, 356. worth (1842), 5 Beav. 325 ; Nelson (p) (1854), 9 Ex. 309. See also v. Duucombe (1S16), 9 Beav. 211 ; Brown v. Jodrell (1827), M. & M. Stedman v. Hart (1854), Kay, 607 ; 105 ; Elliott v. Ince(1857), 7 Be G. 23 L. J. Ch. 908. M. &G. 475 ; 26 L. J. Ch. 821. c2 20 CAPACITY OF PARTIES— LUNATICS. Lucid interval. Agency. Marriage. Neces- Delusions. becomes a lunatic is not invalidated by the lunacy, and in Owen v. Davies (t) specific performance of such a contract was decreed. As to the mode in which such contracts may be carried out, reference should be made to the provisions of the Lunacy Act, 1890 (»). Contracts entered into by a lunatic during a lucid interval are valid (.r). The insanity of the principal, as between himself and his agent, ipso facto revokes the agency ; but the lunatic is liable on contracts entered into by the agent with persons ignorant of the fact of the principal's lunacy, and to whom the lunatic had, when sane, represented the agent's authority (y). The insanity of an agent also ipso facto revokes the agency. A lunatic is incapable of contracting marriage (z). Since the fusion of law and equity, it is not very material to decide whether, if a person supplies necessaries to a lunatic, knowing of the lunacy at the time, a contract on the part of the lunatic to pay for them can be implied. Brett, L. J., in the case of In re Weaver (a), thought not; but in the recent case of In re Rhodes (i) (where the numerous authorities are referred to), the Court of Appeal, affirming Kay, J., dissented from this view, and held that the Court will imply such an obligation where necessaries have been supplied under circumstances which justify the Court in implying an obligation to repay the money spent upon them. And now, by sect. 2 of the Sale of Goods Act, 1893 (c), where necessaries are sold and delivered to a person who, by reason of mental incapacity or drunkenness, is incompetent to contract, he must pay a rea- sonable price therefor; and "necessaries" in this section mean goods suitable to the condition in life of the purchaser, and to his actual requirements at the time of the sale and delivery. Mere delusions with regard to the subject-matter of it will not in themselves be sufficient reason for setting a contract aside. Thus, it has been held that a lease of a farm may be valid though the lessor laboured under the fancy that it was impregnated with sulphur- ((/). " Although a man," said Jessel, M. R., " may believe (t) (1747), 1 Ves. sen. 80. \u) 53 Vict. c. 5. See especially Beets. 120 and 135 ; also, In re Pagani, [1892] 1 Ch. 236 ; 6G L. T. 244. (x) Hall v. Warren (1804), 9 Ves. 605 ; Selby v. Jackson (1843), 6 Beav. 192; 13 L. J. Bk. 249. {>/) Drew v. Nunn(1879), 4 Q. B. D.661 ; 48 L. J. Q. B. 591. (z) Browning v. Reane (1812), 2 Phill. Eccl. Cas. 69; Hancock v. Peaty (1867), L. R. 1 P. & D. 335 ; 36 L. J. Mat. 57. [n) (1882), 21 Ch. D. 615; 48 L. T. 93. (b) (1890), 44 Ch. D. 94 ; 59 L. J. Ch. 298. And see Howard v. Digby (1834), 2 CI. & P. 634 ; Wentworth v. Tubb (1841), 1 Y. & C. C. C. 171 ; ifeMacfarlane (1862), 2 J. & H. 673; Re Gibson (1871), L. R. 7 Ch. 52; 25 L. T. 551. (c) 56 & 57 Vict. c. 71. (d) Jenkins v. Morris (1880), 14 Ch. D. 674 ; 42 L. T. 817. CAPACITY OF PARTIES -LUNATICS. 21 a farm to be impregnated with sulphur, and not fit for himself to live in, he may still be a shrewd man of business, and may even believe that the other side may not know of the impregnation of the farm with the sulphur, and that in consequence he may get a higher price for it than if it was known that it was so impregnated. He may have been perfectly right in his conclusion upon that subject, and the jury may have thought that it was so." Persons drunk are in the same position as lunatics with regard to Drink. the capacity of contracting. A person is not bound by a contract which he has entered into Duress. under duress, and he may recover what he has paid under duress, or he may enforce the contract, as it is only voidable at his option. It would appear that it is not now necessary for the avoidance of a transaction on this ground that the duress should be of a physical kind, or addressed immediately to the person professing to contract. " I think it must be regarded as the law," said Denman, J., in a recent case (e), " that if a man asserts to the father of a debtor that his son is liable to a criminal prosecution, and the father is led by reason of that assertion to suppose that the fact is so, and by reason of that belief is led to give a j:>roinissory note, or to bind himself for the payment of a composition by the son, then in that case the transaction is not a fair one. It is not to be looked at as a voluntary act, but as a case of extortion, whether the facts are in accord with the assertion or not." A threat to make a man bankrupt, or to bring a civil action against him, is not such duress as will avoid an agreement made in consequence thereof (/). "Where a person is liable to be proceeded against both civilly and criminally (e.g., for libel), an agreement entered into with the prosecutor will not prima '■facie be void on tho ground of duress () Crook v. Corporation of Sea- ford (1871), L. R. 6 Ch. 551 ; 25 L. T. 1. (c) See Burnley Equitable Co- operative Society v. Casson, [1891] 1 Q. B. 75 ; GO L. J. M. C. 59 ; in -which it was held that a contract of apprenticeship is not invalid by reason of the fact that the master to whom the apprentice is bound is a corporation. (d) (1875), L. R. 7 H. L. 653; 44 L. J. Ex. 185 ; and see Attorney- General v. G. E. By. Co. (1880), 5 App. Cas. 473 ; 49 L. J. Ch. 545 ; Baroness Wenlock v. River Dee Co. (1885), 10 App. Cas. 354; 54 L. J. Q. B. 577. CAPACITY OF PARTIES— MARRIED WOMEN. 27 authorize is to be taken as prohibited. Contracts ultra vires are void, not for illegality, but for incapacity (e). A company cannot, unless specially authorized, buy shares in another company, nor can it purchase its own shares (/). Contracts of Married Women. PIKE v. FITZGIBBON. (1881) [8.] [17 Ch. D. 454 ; 50 L. J. Oh. 394.] The plaintiffs were bankers, with whom Lady Louisa Fitzgibbon had kept a separate account which had, during her coverture, become overdrawn. This overdrawing, as the plaintiffs alleged, had been allowed on the ground that Lady Louisa was known by them to have consider- able estates settled to her separate use, and had agreed to repay the advances out of her separate estate. The main object of the action was to attach the interest of Lady Louisa in estates to which she was entitled as tenant for life in possession for her separate use, with a restraint on anticipation. The Court of Appeal held that the plain- tiffs' claim could only be enforced against so much of the separate estate as was free from any restraint on anticipa- tion to which she was entitled at the time when the engagements were entered into, and which remained at the time when judgment was given. James, L. J., said : " It is said that a married woman having separate estate has not merely a power of contracting a debt to be paid out of that separate estate, but, having a separate estate, has acquired a sort of equitable status of capacity to con- («) See Newcastle-upon-Tyne (1SG7), L. R. 3 Ch. 105 ; 37 L. J. (Mayor) v. Attorney - General, Ch. 81; Trevor v. Whit worth [1892] A. C. 5G8 ; 50 J. P. 836. (1887), 12 App. Cas. 409 ; 57 L. J. (/) In re Barned's Banking Co. Ch. 28. 28 CAPACITY OF PARTIES— MARRIED WOMEN. tract debts, not in respect only of that separate estate, but in respect of any separate estate which she may thereafter in any way acquire. In my opinion, there is no authority for that contention." " It seems to me," said Brett, L. J., " that it is not true to say that equity has recognized or invented a status of a married woman to make contracts ; neither does it seem to me that equity has ever said that what is now called a contract is a binding contract upon a married woman. What equity seems to me to have done is this, it has recognized a settlement as putting a married woman into the position of having what is called a sepa- rate estate, and has attached certain liabilities not to her but to that estate." And Cotton, L. J., added, " In my opinion that fallacious use of the expression that a married woman having separate estate is regarded as a feme sole, has given rise to a great part of the argument on behalf of the plaintiffs." ' ' In order to construe an Act of Parliament it was laid down long ago in Heydon's case (y) that one of the most material things to consider is the state of the law before the Act, and the defect in that law which the Act was intended to remedy. In 1881 the atten- tion of the profession and public had been called to the law with relation to the pecuniary obligations of married women by a decision of the Court of Appeal in Pike v. Fitzgibbon. ... In that state of the law the Married Women's Property Act, 1882, was passed" (/*). Although, therefore, the law enunciated in Pike v. Fitzgibbon was repealed by the Married Women's Property Act, 1882 (•/), still its ratio decidendi should be noted in order to appreciate the present state of the law relating to the capacity of married women to con- tract, which is now governed by the Married Women's Property Act, 1882, as altered by the Married Women's Property Act, 1893 (k). Rights at At common law a married woman is incapable of making a valid common _ contract ; and this general principle was followed in equity, subject eanitv ^ ^° ^ ne exce P^ on that she could contract so as to bind any property settled to her separate use and unrestrained from anticipation. Excep- Her person could not be made liable at law or in equity, but in tions to in- capacity. ((,) (1584), 3 Rep. 7 b. L. J. Q. B. 742. (A) Per Kay, L.J.. in Pelton v. (i) 45 & 46 Vict. c. 75. Harrison, [1891] 2 Q. B. 422 ; 60 (A) 56 & 57 Vict. c. 63. CAPACITY OF PARTIES— MARRIED WOMEN. 29 equity her property might be subjected to claims under her con- tracts (I). By a deed acknowledged with the concurrence of her Deed husband, a married woman could bind property not settled to her ^cknow- separate use, though, obviously, this was effectual as being the act more of the husband than the wife. So, too, a married woman Personal might acquire rights under a contract where she supplied the con- servlces - sideration, as by giving her separate property, or her personal skill and services (m). A woman could not, during coverture, renew a debt which would otherwise be barred by the Statute of Limita- tions («). The wife of the King of England has the same powers "Wife of of contracting as a feme sole (o). Under certain circumstances a »' married woman had exceptional rights as to contracting, e.g., where the husband was civil iter mortuus, or if she carried on a trade Husband within the city of London, she might contract for the purposes of . that trade. A further series of exceptions was created by the rr, a- „• Divorce and Matrimonial Causes Act, 1857 (p) ; a woman divorced London, from her husband is restored to the position of a feme sole ; so also Divorce in the case of a judicial separation so long as it continues (q) ; and andMatri- of a wife, deserted by her husband, who has obtained a protection n auaea order. But a separation by agreement was not sufficient to give Act. the wife power to bind herself by contracts (r). As a general rule, Contracts both in law and equity, there could be no valid contract between between husband and wife, they being considered as one person ; however, an ^ • * in equity, such a contract might be made respecting the wife's separate estate (s), or concerning the matrimonial rights. In the recent case of McGregor v. McGregor (t), a husband and McGregor wife having taken out cross-summonses against each other for ^_'__ c assaults, entered into an agreement with each other to withdraw the summonses and to live apart, the husband agreeing to allow the wife a weekly sum for maintenance, and the wife agreeing to maintain herself and her children, and to indemnify the husband (0 Jobnson v. Gallagher (1861), Cooper, [1893] 2 Q. B. 85; 62 L. J. 3 D. F. & J. 494 ; 30 L. J. Ch. Q. B. 423. 298; Picard ■■<•. Hine (1869), L. R. (»•) Marshall v. Rutton (1818), 5 Ch. 274. 8 T. R. 545 ; Meyer v. Haworth (m) See Jones v. Cuthbertson (1838), 8 A. & E. 467; 3 N. & P. (1873), L. R. 8 Q. B. 504 ; 42 L. J. 462. Q. B. 221. (s) Walrond v. Walrond (1858), (n) Pittam v. Foster (1823), 1 B. Johns. 18 ; 28 L. J. Ch. 99. 6 C. 248 ; 1 Wms. Saund. 172. (0 (1888), 21 Q. B. D. 424; 57 (o) Co. Litt. 133 a. L. J. Q. B. 591 ; Sweet v. Sweet, (p) 20 & 21 Vict. c. 85. [1895] 1 Q. B. 12 ; 64 L. J. Q. B. ((/) But this only applies to such 108; Bateman v. Ross (1813), 1 property as she may ucquire or Dow, 235; Vansittart v. Vansittart Which may come to or devolve upon (1858), 4 K. & J. 62 ; 27 L. J. Ch. her after the decree. Waite v. 222. See, however, Cahill v. Cahill Morland (1888), 38 Ch. D. L35 ; (1883), 8 App. Cas. 1.0; 19 L. T. 57 L. J. Ch. 655 ; and see Hill v. 605. gor. 30 CAPACITY OF PARTIES— MARRIED WOMEN. Wedding presents. Damages for per- sonal in- juries to married ■woman. Alimony. Fraud. Imprison- ment. Decree nisi. against any debts contracted by her. An action having been brought by the wife against the husband for six weeks' arrears of maintenance under the agreement, it was held, that the husband and wife had power to make a contract for separation by way of compromise of legal proceedings, that the husband's contract to pay for maintenance was binding, and that the action was main- tainable. A married woman is Hable at common law for a debt contracted before her marrriage ; and the Married Women's Property Acts, 1882 and 1893, leaye that liability untouched, and judgment can therefore be obtained against her personally (u). Wedding presents given to a woman in contemplation of mar- riage, prima facie belong to her for her separate use (aj). Damages awarded to a wife in an action by her husband and herself for personal injuries to her are separate property and cannot, therefore, be attached to answer a judgment debt of the husband (>/}. Alimony received by a wife under a decree for judicial separation from her husband was held, in Anderson v. Hay (2), not to be separate estate, and, therefore, not chargeable by a wife with pay- ment of her debts. A married woman (like an infant) cannot be sued for a fraud if it is directly connected with a contract, e. g., where she has obtained advances by means of her guaranty, falsely representing herself as sole ; and in cases of this kind a married woman is not estopped from pleading coverture by having described herself as sui juris (a). It was held, however, in the case of Vaughan v. Yanderstegen(^), that where a married woman had concealed her marriage, and held herself out as a feme sole, and thus borrowed money on mortgage, that the fraud thus committed rendered her property liable, not- withstanding she was actually covert at the time of the contract. A married woman without separate property cannot be imprisoned for non-payment of the costs of an action (c). The status of a married woman is not affected, or her capacity to contract restored, merely by the pronouncing of a decree nisi for the dissolution of her marriage (d). A contract invalid because (u) Robinson v. Lynes, [1894] 2 Q. B. 577 ; 63 L. J. Q. B. 759. (x) Re Jamieson, Ex parte Pan- nell (1889), 60 L. T. 159 ; 37 W. R. 464. (y) Beasley v. Roney, [1891] 1 Q. B. 509; 60 L. J. Q. B. 408. (2) (1891), 55 J. P. 295. (a) Liverpool Adelphi Loan As- sociation r. Fairhurst (1854), 9 Ex. 422 ; 23 L. J. Ex. 163 ; Wright v. Leonard (1861), 11 C. B. N. S. 258 ; 30 L. J. C. P. 365 ; Arnold v. Woodhams (1873), L. R. 16 Eq. 29 ; 42 L. J. Ch. 578 ; Cannam v. Farmer (1849), 3 Ex. 698. {b) (1854), 2 Drew. 363 ; and see lie Macintyre (1887), 21 L. R. Ir. 421 ; Liverpool, &c. Assoc, v. Fairhurst, ubi supra. (c) In re Walter (1891), 55 J. P. 551. (d) Normau v. Villars (1877), 2 Ex. D. 359 : 46 L. J. Ex. 579. CAPACITY OF PARTIES— MARRIED WOMEN. 31 made during coverture does not become valid by subsequent dis- -coverture (e). The power given by equity to a married woman of binding by ber London contracts ber separate estate was fully discussed, and many of tbe Chartered authorities cited, in the important case of the London Chartered A ai \ °i- Bank of Australia v. Lempriere (/). r. Lem- Although a married woman is still only liable to the extent of priere. her separate estate unrestrained from anticipation, yet her capacity to contract is not confined to dealings with her separate estate () Palliser v. Gurney (1887), 19 1-19 ; In re Lynes, Ex parte Lester, Q. B. D. 519; 56 L. J. Q. B. 546; [1893] 2 Q. B. 113 ; 62 L. J. Q. B. Leak V. Driffield (1890), 24 Q. B. 372 ; and In re Hewett, Ex parte D. 98 ; 59 L. J. Q. B. 89. Levene, [1895] 1 Q. B. 328 ; 64 (o) Draycott v. Harrison (1886), L. J. Q. B. 185. 17 Q. B. D. 147 ; 34 W. ft. 546. (r) 56 & 57 Vict. c. 63. But see In re Dixon (1887), 35 Ch. (s) But see sect. 2, which pro- D. 4 ; 56 L. J. Ch. 773 ; Scott v. vides that the Court may, in any Morley (1887), 20 Q. B. D. 120; 57 action or proceeding instituted by L. J. Q. B. 43 ; in which the a woman or by a next friend on prope form of judgment against her behalf, order payment of the a married woman under sect. 1, costs of the opposite party out of sub - sect. (2), of the Married property subject to a restraint on Women's Property Act, 18S2, was anticipation, and may enforce such settled by the Court. payment by the appointment of a (p) [1891] 2 Q,. B. 422 ; 60 L. J. receiver and the sale of the property Q. B. 742. And see Hood-Barrs v. or otherwise, as may be just. It Cathcart, [1894] 2 Q. B. 559 ; 63 L. should be observed that this section J. Q. B. 602. 798; Loftus r. Heuot, only contemplates the case of a [1895] 2 Q. B. 212; 11 T. L R 467. married woman plaintiff: seeHood- , But see/;/ re Gardiner (1887), Barrs v. Cathcart, [1894] 3 Ch. 20 Q. B. D. 249 ; 57 L. J. Q. B. 376; 63 L. J. Ch. 793. CAPACITY OF PARTIES— HUSBAND AND WIPE. 33 A husband may sue his wife for money, which, after their mar- riage, he has advanced to her on a contract by her, either express or implied, to repay it out of her separate estate (s). It is important to observe that neither the Act of 1882 nor that of 1893 has imposed a personal liability on a married woman in respect of her contracts, but has simply largely extended the doctrine of separate estate as established by the courts of equity. Power of Wife to bind Husband to her Contracts. — ♦ — MANBY v. SCOTT. (1659) [9.] [1 Sid. 112.] " Scott's wife departed from Mm without his consent, and lived twelve years separate from him, and then re- turned ; hut he then would not receive her, nor allow her any maintenance, and discharged or forbade tradesmen, particularly the plaintiffs, from trusting her with any wares." The plaintiffs disregarded the prohibition, sold the wife goods at reasonable prices and fit for her quality, and then sued the husband. They did not succeed, how- ever; and Manby v. Scott has been for more than two centuries the leading authority for the principle that the wife's contract does not bind her husband unless she acts by his authority. MONTAGU v. BENEDICT. (1825) [10.] [3 B. & C. G3L] Mr. Benedict was a London lawyer, whose wife ordered various articles of expensive jewellery from the plaintiff without her husband's knowledge. In an action by the (*) Butler v. Butler (188G), 1G Q. B. D. 371 ; 55 L. J. Q. B. 55. s. — c. 1) 34 CAPACITY OF PARTIES— HUSBAND AND WIFE. jeweller against the husband, it was argued for the plaintiff, with some plausibility, that the defendant and his wife were in comfortable circumstances of life, though they might not be rich ; and that cohabitation was evidence of Benedict's assent to his wife's contract. It was, however, unanimously held that the goods supplied were not necessaries, and that therefore the defendant could not be compelled to pay for them. " If a tradesman," said Bayley, J., " is about to trust a married woman for what are not necessaries, and to an extent beyond what her station in life requires, he ought, in common prudence, to inquire of the husband if she has his consent for the order she is giving." [11.] SEATON v. BENEDICT. (1828) [5 BlXG. 28 ; 2 M. & P. 66.] After the jewellery case, just related, the Benedicts went to live at Twickenham. But Mrs. Benedict continued her extravagance. She became indebted to a local haberdasher for scarves, gloves, laces, and other articles ; and finally the tradesman sued her husband. The goods supplied were unquestionably necessaries, but then Mr. Benedict had always duly furnished his wife with necessary apparel., and knew nothing of her clandestine dealings with Beaton ; and on this ground the plaintiff was disappointed in his expectations of getting paid. " It may be hard," said Best, C. J., " on a fashionable milliner that she is precluded from supplying a lady without previous inquiry into her authority. The Court, however, cannot enter into these little delicacies, but must lay down a law that shall protect the husband from the extravagance of his wife." CAPACITY OF PARTIES— HUSBAND AND WIFE. 35 JOLLY r.REES. (1863) [12.] [15 C. B. N. S. 628; 33 L. J. C. P. 177.] Mr. Eees, a country gentleman living near Llanelly, told his wife that he was not going to pay for any drapery or millinery goods she or her daughters might choose to buy on credit. They could do well enough, he said, on the allowance they already had. In spite of this distinct prohibition, Mrs. Eees gave Messrs. Jolly, hosiers and linendrapers at Bath, substantial orders, and they by-and- by sent Mr. Eees a substantial bill. This Mr. Eees absolutely declined to pay, and litigation ensued. The tradesmen had not known that Jfr. Rees had expressly for- bidden his wife to incur surreptitious debts, and the goods they had supplied were what the law calls " necessaries," so they felt confident of success. The judges, however, decided against them, and thus " carried to its logical results the principle that the wife's authority to bind her husband is a mere question of agency." SMOUT v. ILBERRY. (1842) [13.] [10 M. &W. 1.] A man who had been in the habit of dealing with the plaintiff for meat supplied to his house went to China, leaving his wife and family behind, and died there. It was held that the wife was not liable for goods supplied to her after his death, but before the news of it had arrived, she having had originally full authority to contract, and done no wrong in representing her authority as con- tinuing. The law of husband and wife in respect of the wife's power to hind her husband to a contract sho has entered into since the marriage is host considered under two heads : — (1.) "When husband and wife arc living together* (2.) "When they are not. d2 36 CAPACITY OF PARTIES— HUSBAND AND WIFE. Living 1 tog-ether. Debenham v. Mellon. Separated. (1.) "When husband and wife are living together there is a pre- sumption that the wife has her husband's authority to enter into a contract so as to bind him for necessaries. But there are several •ways in which a husband may rebut the presumption. lie may show that at the time when his wife incurred the debt she was already properly supplied with necessaries, or, which is the same thing, with money to purchase them ; he may show that he ex- pressly forbade her to pledge his credit (s) ; he may show that he expressly forbade the plaintiff to trust her ; or, lastly, he may show that the credit was given to the woman herself (/). Moreover, the presumption must now be taken subject to the provisions of the Married Women's Property Act, 1893, that " every contract entered into by a married woman, otherwise than as agent, shall be deemed to be a contract entered into by her with respect to, and to bind, her separate property " (u). Jolly v. Bees was brought under discussion, and approved of, by the House of Lords in the case of Debenham v. Mellon (as). (2.) When husband and wife are living apart, the presumption is that the wife has no authority to pledge her husband's credit. And when the separation is the wife's own fault, when she has left her home without just cause — e.g., to live with an adulterer — this pre- sumption cannot be rebutted. But if it is by mutual consent that husband and wife are living apart, she goes forth with implied authority to pledge his credit for necessaiies. If, however, the husband makes his wife a sufficient allowance, or what she accepts as a sufficient allowance, when thus living separate, and actually pays it, the tradesman cannot recover against her husband (y) ; and it is not material that the tradesman had no notice of this allow- ance (2). Probably, too, if the lady has money of her own, or if she can earn it, she has no implied authority to pledge her husband's credit («). A pension during the Crown's pleasure, however, would not exonerate the husband (b). If a wife has been driven out of doors by her husband, or if his conduct at home is so abominable that no decent woman would live under the same roof with him, (s) In re Cook, Ex parte Holmes (1893), 10 M. B. R. 12. (t) Bentley v. Griffin (1814), 5 Taunt. 356; Metcalfe v. Shaw (1811), 3 Camp. 22. But see Jewsbury v. Newbold (1857), 26 L. J. Ex. 247. (w) 56 & 57 Vict. c. 63, s. 1, repealing sect. 1, sub -sect. 3, of the 1882 Act, 45 & 46 Vict. c. 75. (.r) (1880), 6 App. Ca. 24; 50 L. J. Q. B. 155. (y) Eastland v. Burchell (1878), 3 Q. B. D. 432 ; 47 L. J. Q. B. 600. (*) Mizen v. Pick (1838), 3 M. & W. 481 ; 1 H. & H. 163. (a) Johnston v. Sumner (1858), 3 H. & N. 261 ; 27 L. J. Ex. 341 ; Clifford v. Laton (1827), Moo. & M. 101 ; Dixon v. Hun-ell (1838), 8C.&P. 717. {b) Thompson v. Hervey (1768), 4 Burr. 2177. sanes, what are. CAPACITY OF PARTIES— HUSBAND AND WIFE, 37 there is an irrebuttable presumption by law that she has authority to pledge his credit for necessaries (c). " Necessaries " are such things as may fairly be considered essential Neces- to the decent maintenance and general comfort of a person in the social position of the defendant's wife. But the wife has no implied authority to run into extravagance, and give orders quite beyond the husband's means. The cases on the subject are numerous. It has been held that a wife may make her husband liable for the cost of exhibiting articles of the peace against him (d), but not of prose- cuting him for an assault (e). So he may have to pay the cost of legal advice to the wife respecting an ante-nuptial settlement (/), and of successful divorce proceedings instituted against him (() Walker v. G. W. Ry. Co. (1867), L. R. 2 Ex. 228 ; 36 L. J. Ex. 123. (.r) Arthur v. Barton (1840), 6 M. & W. 138 ; Beldon v. Campbell (1851), 6 Ex. 886; 20 L. J. Ex. 342; Gunn v. Roberts (1874), L. R. 9 C. P. 331; 43 L. J. C. P. 233; The Pontida (1884), 9 P. D. 177 ; 53 L. J. P. 78 ; The Rhosina (1885), 10 P. D. 131; 54 L. J. P. 72. CAPACITY OF PARTIES— AGENCY. 41 the goneral manager of a mine has no implied authority to borrow Manager money in an emergency (y). °f ndne. A ship's husband cannot bind his owners by an agreement to Ship's cancel the charter-party (z). husband. In the recent case of Payne v. Leconfield («), it was held that an Auc- auctioneer selling a horse did not bind his employer by unautho- tloneer - rized statements which he made respecting it. An agent appointed to sell land has, in the absence of express Sale of instructions, no authority to sign a contract on behalf of his prin- land. cipal(i). Neither has he authority to receive payment on behalf of his principal in any other mode than in cash, in the absence of any usage to the contrary (c). Sometimes the law implies an authority to contract for another Agency of so as to bind him from the necessity of the occasion. Thus, in a case necessity. in which a man had sent a horse down from King's Cross to Sandy, but had not given any address, or told any one to meet it, it was held that the railway company had authority to incur livery stable expenses on behalf of the owner (d). An agent cannot generally employ a sub-agent to do the work of Agent his agency. There are, however, exceptions to this rule. Thus, it cann ot was recently held, by the Divisional Court (e), that a servant has su b-a°-ent. an implied authority in cases of sudden emergency to appoint another Excep- person to act as a servant on his master's behalf ; the facts were as tions. follows : — "While the defendants' omnibus was being driven by their Sudden servant, a policeman, being of opinion that the driver was drunk, ordered him to discontinue driving. The driver and the conductor of the omnibus thereupon authorized a third person, who happened to be passing by, to drive the omnibus home on their master's behalf. That person while so driving the omnibus home, negli- gently drove over the plaintiff and injured him. The defendants were held liable, and, in his judgment, Wright, J., said, " I think that in cases of sudden emergency a servant has an implied autho- rity from his employer to act in good faith according to the best of (//) Hawtayne v. Bourne (1841), Ch. 53 ; and Chadburn v. Moore 7 M. & W. 595. (1892), Gl L. J. Ch. 674 ; 67 L. T. (;) Thomas v. Lewis (1878), 4 257. Ex. Div. 18 ; 48 L. J. Ex. 7 ; (c) Pape v. Westacott, [1894] 1 Sandeman v. Scurr (1860), L. R. 2 Q. B. 272 ; 63 L. J. Q. B. 222. Q. B. 86 ; 36 L. J. Q. B. 58. (d) G. N. Ry. Co. v. Swaffield (a) (1882), 30 W. R. 814; 51 L. J. (1874), L. R. 9 Ex. 132; 43 L. J. Q. B. 642; Stein v. Cape (1883), Ex. 89. See also the recent case 1 C. & E. 63 ; Graves v. Masters of Moutaignac v. Shitta (1890), 15 (1883), 1 C. 6c E. 73. App. Cas. 357. (A) Prior v. Moore (1887), 3 T. L. (e) Gwilliain v. Twist, [1895] 1 R. 624. And see Hamer v. Sharp Q. B. 557. (1874), L. R. 19 Eq. 108 ; 44 L. J. emer- gency. 42 CAPACITY OF PARTIES—AGENCY. Custom. The one- eyed man's case. Ratifica- tion. his judgment for that employer's interests, subject to this, that in so doing he must violate no express limitation of his authority, and must not act in a manner which is plainly unreasonable." This decision, however, has been reversed by the Court of Appeal (/), on the ground that there was no evidence of necessity, but Lord Esher, M.R., made the following important observation : — " I am very much inclined to agree with the view taken by Eyre, C.J., in the case of Nicholson v. Chapman (7), and by Parke, B., in the case of nawtayne v. Bourne (h), to the effect that this doctrine of authority by reason of necessity is confined to certain well-known exceptional cases, such as those of a master of a ship or the acceptor of a bill of exchange for the honour of the drawer." The fact that the master might have been communicated with was considered sufficient to rebut the suggestion of necessity. So too, by usage of trade, an architect receives implied authority from those who employed him to engage a person to make calculations and take out quantities, and this person may claim remuneration from the employers of the architect, though they were unaware of his existence (?'). Knowledge obtained by an agent when he is acting within the scope of his authority will be imputed to his principal. A good illustration of this rule is furnished by the recent case of Bawden v. London, Edinburgh, and Glasgow Assurance Co. (Jc). The plaintiff effected an insurance against accidental injury with the defendants through their agent ; the proposal for the insurance, which formed the basis of the contract, contained a statement by the assured that he had no j)hysical infirmity. At the time when he signed the proposal the assured had lost the sight of one eye, a fact of which the defendants' agent was aware, though he did not communicate it to the defendants. The assured during the currency of the policy met with an accident, which resulted in the complete loss of sight in his other eye, so that he became permanently blind. It was held that the knowledge of their agent must be imputed to the defendants, and that they were consequently liable on the policy. Though an agent may have exceeded his authority in such a way that his principal is not bound, still the principal may, if he pleases, ratify the unauthorized contract. Omnis ratihabitio retrotrahitur et (f) [1895] 2Q. B. 84; 64 L. J. Q. B. 474. (), and Swinfen v. Lord Chelmsford (q), should be considted on the whole of this subject. (/) Hovilr. Pack (1806), 7 East, T. L. E. 246; Steele v. Gourley 164 ; Hartas v. Eibbons (1889), 22 (18S7), W. N. (1887) 147 ; 3 T. L. Q. B. D. 254 ; 58 L. J. Q. B. 187 ; E. 772 ; Barnett r. Wood (1888), Bolton v. Lambert (18S9), 41 Ch. 4 T. L. E. 278 ; Pilot v. Craze D. 295 ; 58 L. J. Ch. 425. (1888), 52 J. P. 311 ; 4 T. L. E. (;«) Brook v. Hook (1871), L. E. 453. 6 Ex. 89 ; 40 L. J. Ex. 50. (o) Hawke v. Cole (1890), 62 L. T. (w) Cullen v. Queensbury (17S7), 658. 1 Br. P. C. 396 ; Fiemyng- p. Hec- (p) (1857), 1 C. B. N. S. 364 ; 26 tor (1836), 2 M. & W. 172 ; Todd L. J. C. P. 97. r. Emly (1841), 7 M. k W. 427 ; (?) (1860), 5 H. & N. 890; 29 Parr v. Bradbury (1885), 1 T. L. E. L. J. Ex. 382. 625 ; Overton v. Hewett (1886), 3 41 CAPACITY OF PARTIES— AGENCY. Responsibility of Principal for Fraud of Agent. [15.] Leading case of doubtful authority, but not quite over- ruled by Ludgater v. Love. CORNFOOT v. FOWKE. (1840) [6 M. & W. 35S ; 4 Jur. 919.] In this case a Leicestershire baronet had been misled about a house. The agent who showed it him had made a misstatement about it, but in perfect good faith ; and there had been equal good faith on the part of his prin- cipal. This being so, it was held that the baronet could not get out of his agreement on the ground of fraud. " I think it impossible," said Alderson, B., " to sustain a charge of fraud, when neither principal nor agent has committed any : the principal, because, though he knew the fact, he was not cognisant of the misrepresentation being made, nor even directed the agent to make it ; and the agent, because, though he made a misrepresentation, yet he did not know it to be one at the time he made it, but gave his answer bona fide." It should be stated, however, that Lord Abinger, C. B., in a learned and exhaustive judgment, dissented from the view of the majority, saying that it was " a matter that appeared to him, but for their opinion, too plain to admit of a doubt." It is far from chimerical to suppose that the case of Cornfoot v. Fowke will some day be overruled in favour of the view there unsuccessfully contended for, and of the principle that if a man, having no knowledge whatever on the subject, takes on himself to represent a certain state of facts to exist, he does so at his peril (r). The recent case of Ludgater v. Love (s) (where the principal's son innocently said what bis father told him to say about the condition of some sheep he was selling) is undoubtedly (»•) See Fuller v. Wilson (1842), 3 Q. B. 58 ; 2 G. & D. 460 ; Deny r. Peek (1889), 14 App. Cas. 337 ; 58 L. J. Ch. 864. (s) (1881), 44 L. T. 694; 45 J. P. 600. See Blackburn v. Vigors (1887), 12 App. Cas. 531 ; 57 L. J. Q. B. 114 ; Blackburn v. Haslam (1888), 21 Q. B. D. 144; 57 L. J. Q. B. 479. CAPACITY OF PARTIES— AGEXCY. 45 another nail in the coffin of the leading case ; but Ludgater v. Love is to be distinguished from Cornfoot v. Fowke on the ground that in the former case the jury expressly found that the defendant fraudulently concealed from his son that the sheep had the rot, ■with a view to his representing them as sound and getting the best price for them. But whatever doubt there may be as to the liability of a fraudu- Fraud of lent principal for the acts of an innocent agent, there would seem ^o ent to be none now as to the liabiHty of an innocent principal for the principal, fraud of his agent. In order, however, to make the principal liable, the fraud of the agent must be committed within the scope of his authority and for the benefit of the principal (t). In such cases, the fraud of the agent is the fraud of the principal, so that the latter cannot take any advantage or benefit from it, and, on the other hand, is liable to an action for it. For authority for this proposi- tion, reference maybe made to the cases of Udell v. Atherton (1861), 7 H. & X. 172 ; 30 L. J. Ex. 337; Barwick v. English Joint Stock Bank (1867), 36 L. J. Ex. 147 ; L. B. 2 Ex. 259; Blake v. Albion Life Assurance Society (1878), 4 C. P. D. 94; 48 L. J. Q. B. 169 ; Swift v. Jewsbury (1874), L. B. 9 Q. B. 301 ; 43 L. J. Q. B. 56; Weir v. Bell (1878), 3 Ex. Div. 238 ; 47 L. J. Q. B. 704; Mackay v. Commercial Bank of New Brunswick (1874), L. B. 5 P. C. 394; 43 L. J. P. 0. 31 ; Swire v. Francis (1877), 3 App. Cas. 106; 47 L. J. P. C. 18 ; Chapleo v. Brunswick Building Society (1881), 6 Q. B. D. 696 ; 50 L. J. Q. B. 372 ; Mullens v. Miller (18S3), 52 L. J. Ch. 380; and Baldry v. Bates (1885), 52 L. T. 620. An agent is not allowed to make a surreptitious profit out of his Bribes to agency, but must account to his employer for everything he receives. a o ents - Thus it was recently held in the case of Skelton v. "Wood (it), that a broker is not entitled to recover from his principal differences on stock which he purports to carry over on his behalf, when there is no existing contract between such broker and any third party available for the principal at the time when such differences arise. Nor can an agent maintain an action to recover such illegal profit or commission from the person who has promised it him. More- over, if I discover that my agent is selling me to the other side in this way — no matter how many trade customs can be produced in support of such dishonesty — I am generally entitled to rescind tho contract. See, on this subject, the cases of Panama, &c. Co. v. Indiarubber, &c. Co. (1875), L. B. 10 Ch. 515; Harrington v. Victoria Graving Dock Co. (1878), 3 Q. B. D. 549 ; 47 L. J. Q. B. 594; Williamson v. Barbour (1878), 9 Ch. D. 529; 50 L. J. Ch. (0 Thornc v. Heard, [1894] 1 Ch. («) (1894), 71 L. T. 616 ; 15 Bop. 599; 63 L. J. Ch. 356. 382. 46 CAPACITY OF PARTIES— AGENCY. 147; Bagnall v. Carlton (1877), 6 Ch. D. 371 ; 47 L. J. Ch. 30; Metropolitan Bank v. Ileiron (1880). 5 Ex. D. 319; 43 L. T. 076; Lister v. Stubbs (1890), 45 Cb. D. 1 ; 59 L. J. Ch. 570; and Corporation of Salford v. Lever, [1891] 1 Q. B. 108 ; 00 L. J. Q. B. 39. Directors. As to secret profits received by a director of a company, see Archer's case, [1892] 1 Ch. 322 ; 61 L. J. Ch. 129. Undisclosed Principals, &c. [16.] PATERSON v. GANDASEQUI. (1812) [15 East, 62.] Gandasequi, a 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 commissioned them to buy a quantity of goods for him. Larrazabal and Co. 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 Larrazabal and Co., and had perfect confidence in them, but Gandasequi they did not know, and had no confidence in. Therefore, though they sent the goods, and though they knew perfectly well that they were really for Gandasequi, and that Larrazabal and Co. were merely his agents in the matter, yet for all that they booked the goods as sold to Larrazabal and Co. This was unfortunate, because it happened that Gandasequi was really a more substantial person than his agents, who shortly afterwards became bankrupt. Paterson was not disposed to be content with the fraction of his debt, which, CAPACITY OF PASTIES— AGENCY. 47 as a creditor in bankruptcy, lie might have got from Lar- razabal and Co., and with the object of getting the whole of his money, sued Grandasequi. But it was held that, if the seller of goods knows that the person he deals with is only an agent, and knows also tr/io //is 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. DAVENPORT v. THOMSON. (1829) [17.] [9 B. & C. 48.] A person named McKune earned on at Liverpool the business of a " general Scotch agent." One day he re- ceived a letter from some clients of his in Scotland to the following purport : — " Dumfries, 29th March, 1823. " Dear Sir, — Annexed is a list of goods which you mil please procure and ship per Nancy. Memorandum of goods to he shipped : — twelve crates of Staffordshire ware, crown window glass, ten square boxes, 8fc, 8fc. " Yours, fyc, " Thomson and Co." On receiving this letter, McKune went to the shop of Davenport and Co., who were glass and earthenware 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, though they knew perfectly well lie was only an agent. Then McKune failed without having paid Davenport and Co. 48 CAPACITY OF PARTIES— AGENCY. Three cardinal rules. Foreign merchant buying goods in England through agent. 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 dis- closed to them by the agent, the sellers had had no opportunity of writing him down as their debtor. The chief rules relating to transactions with an agent, who acts with authority to bind his principal, are these : — 1. If you contract with a man whom you know to be an agent, and who names his principal to you at the time of the contract, there is prima facie no contract at all with the agent. The prin- cipal is the proper person to sue and to be sued. Thus in the recent case of Ellis v. Goulton (x), on the sale of premises by auction, the purchaser paid a deposit to the vendor's solicitor as agent for the vendor ; the sale went off through the default of the vendor, and the purchaser brought an action to recover the dejwsit from the solicitor ; but it was held that the action could not be maintained as the payment of the deposit to the solicitor was equivalent to payment to the vendor, and, therefore, the action should have been brought against the latter. Of course the agent may, if he chooses, render himself liable as a contracting party, or there may from the very nature of the case be also a remedy against him, as where he himself has an interest in the subject-matter of the contract. And it may be, as we have seen, that credit may be given to the agent, and to the agent alone, to the exclusion of all remedy against the principal. There is, however, an exception to the general rule, founded on public convenience of mercantile usages, namely, that where a merchant abroad buys goods in England through an agent, the seller, in the absence of evidence of express authority to the agent to pledge his foreign constituent's credit, contracts icith the agent, and there is no contract or privity between him and the foreign principal (y). But the application of this rule may be excluded by circumstances which establish a privity between the foreign and (,r) [1893] 1 Q. B. 350; 62 L. J. Q. B. 232. (y) Hutton v. Bulloch (1874), L. R. 9 Q. B. 572 ; 30 L. T. G48 ; Die Elbinger, &c. v. Claye (1873), L. R. 8 Q7b. 313 ; 42 L. J. Q. B. 151. CAPACITY OF PARTIES— AGENCY. 40 English principals, as, for instance, was the case in Malcolm v. Hoyle (z). There may also be noticed a technical rule that those persons Iuden- only can sue or be sued upon an indenture, who are described in it tures - as parties thereto (a). And in consequence of this rule, when a deed purports to be the deed of the agent (b), and the principal is not named as a party, the latter cannot sue or be sued upon the indenture. 2. When you deal with a man whom you know to be an agent, but who does not name his principal to you at the time of the con- tract, the agent is prima facie liable on the contract as well as the principal, since you cannot be expected to give credit exclusively to a person whose very name is unknown to you. But where it clearly appears on the face of the contract that the agent is not pledging his personal credit, although he may not disclose the name of his principal, still upon a contract so framed the agent could not be personally liable. Evidence of custom would, how- Evidence ever, be admissible (c) to show that it was intended that the agent 01 custom should himself be bound. Thus, where a charter-party was ex- . c > iai . 2 . e pressed to be made (d) between the plaintiffs and the defendants agent, "as agents to merchants," and the defendants' signature to the contract was expressed to be by them " as agents to merchants," evidence was tendered on the part of the plaintiffs, and admitted, of a trade usage that, if the principal's name is not disclosed within a reasonable time after the signing of the charter-party, in such case the brokers shall be personally liable. Evidence, however, would not have been admitted to prove a custom that the defendant should be liable under all circumstances, inasmuch as that would be to contradict the document itself, and not merely to add a term which is not inconsistent with any term of the contract (e). When a man signs a contract in his own name without any Signing qualification, even although in the body of the document there may without be some expressions tending to show that he is acting for another, ?. ua * c he must nevertheless be taken to have intended to bind himself as principal (/). In order to exempt himself he must make it appear (z) (1894), 63 L. J. Q. B. I. And (d) Hutchinson v.Tatham (1873), see Crossley v. Magniac, [1893] 1 L. R. 8 C. P. 482; 42 L. J. C. P. Ch. 594; 67 L. T. 798. 260; Hutcheson v. Eaton (1884), (a) Southampton v. Brown (1827), 13 Q. B. D. 861 ; 51 L. T. 846. 6 B. & C. 718. (c) See Barrow v. Dyster (1884), (b) In re Pickering's claim (1871), 13 Q. B. T>. 635 ; 51 L. T. 573. L. R. 6 Ch. 525; affirming 24 L. (/) Paiceo. Walker (1870), L. R. T. 178. 5 Ex. 173; 39 L. J. Ex. 109; (e) Itumfrey r. Dale (1857), E. Southwell r. Bowditch (1876), 1 C. B. & E. 1004 ; 26 L. J. Q. B. 137 ; P. D. 374 ; 45 L. J. C. P. 630 ; Pike v. Ongley (1887), 18 Q. B. D. McCollin v. Gilpin (1880), 6 Q. B. 708 ; 56 L. J. Q. B. 373. D. 510 ; 49 L. J. Q. B. 558. S. — C. E 50 CAPACITY OF PARTIES— AGENCY. Liability of re- Agent may limit his respon- sibility. Election within reasonable time after discovery. Agent contract- ing dis- tinctly as if prin- cipal. Humble v. Hunter. clearly (g) on the face of the contract that he did not intend to he liable as a principal. As to the personal liability on contracts of a receiver appointed under a debenture trust deed, see Owen v. Cronk (A), and of a receiver appointed by the Court, see Bent v. Bull (;'). But the agent may limit his responsibility by the insertion of special provisions. Thus, in a well-known case (A-), a charter-party was executed by one Tglesias, as agent for the freighter, and his signature was unqualified, but the instrument contained a proviso that the agent's liability should cease as soon as the cargo was shipped. The Court held that Tglesias was the contracting party and liable upon the contract, but that, nevertheless, it was quite competent for him. to say, " I am making this contract for an unknown principal, and I will not be liable after the cargo is shipped." 3. When you deal with a man who, though really an agent, is not known by you to be such at the time that you enter into the contract, the undisclosed principal is, as a rule, bound by the con- tract (I), and entitled to enforce it as well as the agent with whom you made the contract in the first instance. But if you determine to sue the principal on the contract, you must make your election to do so within a reasonable time after discovering that there was really a principal behind the scenes (m) ; otherwise you will be estopped from pursuing any remedy except that against the agent with whom you originally contracted. So, too, if you deal with the agent so as to lead the principal to believe that the agent only will be held liable, and thus prejudice the principal in his relations with his agent («). It should, moreover, be noticed that where an agent has con- tracted in such terms as to lead anyone to suppose that he was himself the true and only principal, the principal cannot come forward and take advantage of the contract made for him by his agent. In one case (o) a widow brought an action on a charter- party for freight, &c. She was the owner of a ship called the Ann. But on the production of the charter-party it appeared that her {g) Hough v. Manzanos (1879), 4 Ex. Div. 104 ; 48 L. J. Ex. 398 ; and see Ogden v. Hall (1879), 40 L. T. 751. (/;) [1895] 1 Q. B. 265. (i) [1S95] 1 Q. B. 276. (k) O^lesby v. Yglesias (1858), E. B. & £."930 ; 27 L. J. Q. B. 356 ; and see the recent case of Lilly v. Smales, [1892] 1 Q. B. 456 ; 40 W. R. 544. (I) See Watteau v. Eenwick, [1893] 1 Q. B. 346 ; 67 L. T. 831. (m) Smethurstv. Mitchell (1859), 1 E. & E. 622 ; 28 L. J. Q. B. 241; Curtis v. "Williamson (1874), L. B,. 10 Q. B. 57 ; 44 L. J. Q. B. 27. {><) Wyatt v. Hertford (1802), 3 East, 147 ; Irvine v. Watson (1880), 5 Q. B. D. 414; 49 L. J. Q. B. 239. (o) Humble v. Hunter (1848), 12 Q. B. 310; 17 L.J. Q. B. 350. CAPACITY OF PARTIES— AGENCY. 51 son, who had acted as her agent in the making thereof, had signed an agreement running thus : " It is mutually agreed between C. T. Humble, Esq., owner of the good ship or vessel called the Ann, and Jameson Hunter," &c. It was held that, as the docu- ment itself described the son as " owner," the plaintiff must be considered as bound by this assertion of title to the subject-matter of the contract, and that she could not take the benefit of the con- tract. There are dicta contained in the judgments in Davenport v. Thom- son which suggest in the widest terms that a seller is not entitled to sue the undisclosed principal on discovering him, if in the mean- time the state of account between the principal and the agent has been altered to the prejudice of the principal. But a more accurate statement of the law is contained in the Heald v. judgment of Parke, B., in Heald v. Kenworthy (p). "If the con- Kenwor- duct of the seller would make it unjust for him to call upon the buyer for the money, as, for example, where the principal is in- duced by the conduct of the seller to pay his agent the money, on the faith that the agent and the seller have come to a settlement on the matter ; or if any representation to that effect is made by the seller, either by words or conduct, the seller cannot afterwards throw off the mask and sue the principal." This was the view adopted by the Court of Appeal in a recent case (q) where the Irvine v. defendants had employed Conning, a broker, to buy oil for them. Watson. The broker accordingly bought of the plaintiffs, informing them at the time of the sale that he was buying for principals, though he did not tell them who these principals were. The terms of the sale were "cash on or before delivery," but there is no invariable custom in the trade to insist on prepayment. The oil was delivered to Conning by the plaintiffs, but not paid for, and the defendants, not knowing that the plaintiffs had not been paid, paid Conning the amount due for the oil. It was held that the fact of the defen- dants having paid the broker did not preclude the plaintiffs from suing for the price, unless, before such payment, they had by their conduct induced the defendants to believe that they had already been paid by the broker. And the Court considered that under the circumstances the man's omission to insist on prepayment was not such conduct as would reasonably induce such belief. So, in the rjcent case of Davison v. Donaldson (r), where the action was Davison v. brought against a part owner of a ship for the price of beef and Donald- stores for the ship supplied on the order of a man named Tate, who {p) (1855), 10 Ex. 739; 21 L. J. (>•) (1882), 9 Q. B. D. 623; 47 Ex. 76. L. T. 5C4. (q) Irvine v. Watson, ubi sup. e2 52 CA PA CITY OF PA R TIES—A G ENGY. was ship's husband and managing owner, the defendant was held liable, although several years had elapsed, during which the plain- tiff had applied to Tate for payment, and the defendant had more than once settled accounts with Tate. "I think," said Bowen, L. J., ' ' that the plaintiff must succeed, on the ground that there was no misleading conduct." Set- Off against Factor's Principal. ■ — ♦ — [18.] GEORGE v. CLAGETT. (1797) [7 T. E. 359; 2 Esp. 557.] Messrs. Rich and Heapy carried on business in woollen cloths, not only on their own account, but also as factors for other people ; and 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. Messrs. Rich and Heapy happened to have in their possession as factors a large quantity of goods belonging to Mr. George, a clothier of Fronie, 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 1,200/., accepted by Rich and Heapy, and as they saw no 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. Messrs. Rich and Heapy, accordingly, 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. The goods were taken out of one general mass in the warehouse, so that a large portion of them really belonged to the clothier of Froine. This was an action by that person against Messrs. Clagett CAPACITY OF PARTIES—AGENCY. 53 for the price of the portion of the goods which belonged to him, and which he said Messrs. Eich and Heapy had sold as his agents. Messrs. Clagett said they did not know that Eich 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) against him which they would have had against them. In this contention they were successful. "In all these cases of set-off," says Lord Truro in a later case (s), Principle "the law endeavours to meet the real honesty and justice of the of leading 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 goods, the principal is not permitted afterwards to turn round and tell 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." These words put the rule and its reason very clearly. And Lord 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 be no honesty in allowing the purchaser to set off a bad debt at the expense of the principal " (t). As to this last point, the effect of the decisions seems to be that Means of although the defendant had the means of knowing that he was deal- knowing ing with an agent, and did not make use of them, he is still entitled amoun t to to his right of set-off. But, of course, the fact that a man has actual ready to hand the means of knowing a thing is evidence, to some k now - locl^e. extent («■), that he actually does know it. We see, then, that if a factor sells goods as his own, and the buyer knows nothing of any principal, the buyer may set off against the concealed principal any demand he might have set off against the factor. But it has been held, where the factor has Mutual meanwhile become bankrupt, that a mutual credit not amounting crecU t. to ordinary set-off could not be set up in an action brought by tho (*) Fish v. Kerapton (1849), 7 C. (t) See Blackburn v. Mason B. 687 ; 18 L. J. C. P. 200 ; and (1893), 4 R. 297 ; 68 L. T. 510. Bee the recent cases of Maspons v. {><) Borries v. Imp. Ott. Bank Mildred (1882), 30 W. R. 802; and (1873), L. R. 9 C. P. 38 ; 43 L. J. Montagu v. Forward, [1893] 2 Q. C. P. 3. B. 350; 09 L. T. 371. 54 CAPACITY OF PARTIES-AGENCY. Unliqui- dated damages. Warner v. M'Kay. Know- ledge of agent is knowledge of prin- cipal. Principle of leading case not applicable to brokers. unknown, principal against the buyer (.x), that is to say, that the mutual credit clauses of the bankrupt law did not apply as against the principal. This decision has been thought to establish that the principle of George v. Clagett does not extend to a sot-off of un- liquidated damages ; but it cannot be extended to support such a wide proposition. The true deduction would seem to be that the rule in George v. Clagett only applies to what can be said to be a proximate motive in dealing with the factor ; and the Court was of opinion that his bankruptcy, and the mode thereon of settling with his assignees, could not be taken to be so contemplated. Of course, where a factor sells as factor, the purchaser cannot set off, in an action by the principal for the price of the goods, a debt due to him from the factor. But, in a case where the pur- chaser bond fide believed (y) that the factor was selling to repay himself advances, the purchaser was allowed to set off payments on account made by him to the factor. Whatever may have been the ground of this decision, and whether or not it is capable of being supported, it must not be taken (z) to break in upon the principles already stated. It must, too, be observed that where the buyer employs an agent to act for hirn in the matter of the purchase, and this agent of the purchaser has knowledge that the goods are not the goods of the factor, though sold in the factor's name, the knowledge of the agent, however acquired, is held to be the knowledge of the buyer himself (a) ; so that in an action by the factor's principal against the purchaser for the price of the goods, the defendant is affected by such knowledge of the agent, and is not, therefore, entitled to set off a debt due to him from the factor against the plaintiff's claim. The principles enunciated above with regard to the right of set-off, though applicable to the case of a factor, must not be considered to apply in any way to the case of a broker, whose position differs from that of a factor in many important particulars. A broker is not trusted with the possession of the goods to be sold, and he ought not to sell in his own name (b). The principal, then, who trusts a broker has a right to expect that he will not sell in his own name, and the purchaser could not well be led to believe that the (x) Turner v. Thomas (1870), L. R. 6 C. P. 610 ; 40 L. J. C. P. 271. (y) Warner v. M'Kay (1836), 1 M.& W. 591. (z) See per Cresswell, J., in Fish v. Kempton, sup. (a) Dresser v. Norwood (1864), 17 C. B. N. S. 466; 34 L. J. C. P. 48 ; and see Blackburn v. Haslam (18S8), 21 Q. B. D. 144; 57 L. J. Q. B. 479 ; and Bawden v. London, Edinburgh, and Glasgow Assce. Co., ante, p. 42. (4) Baring v. Corric (1818), 2 B. & Aid. 137. CAPACITY OF PARTIES— AGENCY. 55 broker was the actual owner of the goods, which, were to form the subject-matter of the sale. In Stevens v. Biller (c), it was held that an agent who is entrusted with the possession of goods for the purpose of sale does not lose his character of factor, or the right of lien attached to it, by reason of his acting under special instructions from his principal to sell the goods at a particular price and to sell in the principal's name. " A factor," said Cotton, L. J., " can sell in his own name as against his principal, whatever restrictions there may be in his instructions. It is not essential, for the purpose of giving him a general lien, that he should be free from any restriction as to the name in which he shall sell the goods. No cases were cited before us for such a projiosition, and a case was cited before Mr. Justice Chitty to tho contrary — Ex parte Dixon id). That case shows that if a factor sells in his own name, although contrary to the instructions of his principal, it will give a right of set-off as between the purchaser and factor ; it will not take away his character of factor." The status of a factor, as defined by the rules of common law, and Definition of mercantile usage, may be stated briefly as an agent to whom °* f actor goods are consigned for tho purpose of sale, and who has possession ^ aw< of the goods, and is authorized to sell them in his own name upon such terms as he thinks fit, with power to receive the price and give a good discharge to the purchaser. This, however, has, for the piupose of increasing the freedom of mercantile dealings, been considerably enlarged by the "Factors Acts "(e), which were repealed and consolidated with amendments by the Factors Act, Factors 1889 (52 & 53 Vict. c. 45). This Act, after defining various ex- Act, 1889. pressions subsequently used, proceeds as follows :— "2. — (1) Where a mercantile agent (/) is, with the consent of Powers of the owner, in possession (g) of goods or of the documents of title (h) mercantile (c) (1883), 25 Ch, Div. 31; 53 as where " the goods or documents L. J. Ch. 249. are in his actual custody or are (d) (1876), 4 Ch. Div. 133; 46 held by any other persons, subject L. J. Bk. 20. to his control, or for him, or on his (e) (1824), 4 Geo. 4, c. 83 ; behalf." (1826), 6 Geo. 4, c. 94; (1842), 5 (h) By sect. 1, documents of title & 6 Vict. c. 39; (1877), 40 & 41 include any "bill of lading, dock Vict. c. 39. warrant, warehouse-keeper's certi- (/) Defined by sect. 1 as an ficate, and warrant or order for the agent "having in the customary delivery of goods, and any other course of his business as such agent document used in the ordinary authority either to sell goods, or to course of business as proof of the consign goods for the purpose of possession or control of goods, or sale, or to buy goods or to raise authorizing or purporting to autho- money on the security of goods." rize, either by indorsement or by See Hastings v. Pearson, [1893] 1 delivery, the possessor of the docu- Q. B. 62 ; 62 L. J. Q. B. 75. ment to transfer or receive goods (g) Possession is defined by sect. 1 thereby represented." 56 GA PA CIT 7 OF PA Pi TIES— A GENCY. respect to to goods, any sale, pledge (/), or other disposition of the goods, made disposition ^y him when acting in the ordinary course of business of a mer- ° g °° 8 * cantile agent, shall, subject to the provisions of this Act, be as valid as if he were expressly authorized by the owner of the goods to make the same; provided that the person taking under the disposition acts in good, faith, and has not at the time of the disposition notice that the person making the disposition has not authority to make the same. "(2) Where a mercantile agent has, with the consent of the owner, been in the possession of goods or of the documents of title to goods, any sale, pledge, or other disposition, which would have been valid if the consent had continued, shall be valid notwith- standing the determination of the consent, provided that the person taking under the disposition has not, at the time thereof, notice that the consent has been determined. " (3) Where a mercantile agent has obtained possession of any documents of title to goods by reason of his being or having been, with the consent of the owner, in possession of the goods repre- sented thereby, or of any other documents of title to the goods, his possession of the first-mentioned documents shall, for the purposes of this Act, be deemed to be with the consent of the owner. " (4) For the purposes of this Act the consent of the owner shall be presumed in the absence of evidence to the contrary. Effect of " 3. A pledge of the documents of title to goods shall be deemed d le tm5n°ts t0 be a P led S e of the S oods - of title " 4- Where a mercantile agent pledges goods as security for a Pledge for debt or liability due from the pledgor to the pledgee before the antecedent time of the pledge, the pledgee shall acquire no further right to the debt. goods than covdd have been enforced by the pledgor at the time of the pledge. Rights ac- " 5. The consideration necessary for the validity of a sale, pledge, ( l m y e J? or other disposition of goods, in pursuance of this Act, may be of goods either a payment in cash, or the delivery or transfer of other goods, or docu- or f a document of title to goods, or of a negotiable security, or any other valuable consideration ; but where goods are pledged by a mercantile agent in consideration of the delivery or transfer of other goods or of a document of title to goods, or of a negotiable security, the pledgee shall acquire no right or interest in the goods so pledged in excess of the value of the goods, documents, or security when so delivered or transferred in exchange. ((') "Pledge" includes any con- or of any further or continuing tract pledging or giving a lien or advance, or of any pecuniary lia- security on goods, whether in con- bility. (Sect. 1.) sideration of an original advance, CAPACITY OF PARTIES -AGENCY. 57 " 6. For the purposes of this Act an agreement made with, a A°ree- mercantile agent through a clerk or other person authorized in the ments ordinary course of business to make contracts of sale or pledge on j °v &■ his behalf shall be deemed to be an agreement with the agent. " 7. — (1) Where the owner of goods has given possession of the Provi- goods to another person for the purpose of consignment or sale, or s i° n s as to has shipped the goods in the name of another person, and the an( j c ^ n . consignee of the goods has not had notice that such person is not signees. the owner of the goods, the consignee shall, in respect of advances made to or for the use of such person, have the same lien on the goods as if such person were the owner of the goods, and may transfer any such lien to another person. " (2) Nothing in this section shall limit or affect the validity of any sale, pledge, or disposition by a mercantile agent. "8. Where a person having sold goods, continues, or is, in Disposi- possession of the goods, or of the documents of title to the goods, tion by the delivery or transfer by that person, or by a mercantile agent se . er . re " acting for him, of the goods or documents of title under any sale, in posses- pledge, or other disposition thereof, or under any agreement for s i° n - sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorized by the owner of the goods to make the same (k). " 9. Where a person, having bought or agreed to buy goods, Disposi- obtains with the consent of the seller possession of the goods or the tion by documents of title to the goods, the delivery or transfer, by that . u — r ° person or by a mercantile agent acting for him, of the goods or possession, documents of title, under any sale, pledge, or other disposition thereof, or under any agreement for sale, pledge, or other dis- position thereof, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods, shall have the same effect as if the person making the delivery or transfer were a mercantile agent in posses- sion of the goods or documents of title with the consent of the owner (?). " 10. Where a document of title to goods has been lawfully Effect of transferred to a person as a buyer or owner of the goods, and that transfer of person transfers the document to a person who takes the document ocumen s 1 x . on ven- in good faith and for valuable consideration, tho last-mentioned dor's hen (k) Reproduced by sect. 25 of tho L. R. 435. Sale of Goods Act, 1893 (56 & 57 (/) As to the effect of this section Vict. c. 71). And see Nicholson v. on hire and purchase agreements, Harper, [1895] 2 Ch. 415; 11 T. nee post, p. 231. ments. 58 CA PA CITY OF PARTIES— A GENCY. or right of transfer shall have the same effect for defeating any vendor's lien stoppage Qr j-jg]^ Q f stoppage in transitu as tho transfer of a bill of lading m transitu. ° . . has for defeating the right of stoppage in transitu. Mode of "11. For the purposes of this Act, the transfer of a document transfer- may be by endorsement, or, where the document is by custom or by its express terms transferable by delivery, or makes tho goods deliverable to the bearer, then by delivery." The following cases may be usefully referred to, although decided prior to this Act, namely : — Cole v. The North Western Bank (1875), L. E. 10 C. P. 354 ; 44 L. J. C. P. 233 ; City Bank v. Barrow (1880), 5 App. Cas. 667 ; 43 L. T. 393; Heyman v. Plewker (1863), 13 C. B. N. S. 519 ; 32 L. J. C. P. 132 ; Kaltenbach v. Lewis (1885), 10 App. Cas. 617; 55 L. J. Ch. 58; Hugill v. Masker (1889), 22 Q. B. D. 364 ; 58 L. J. Q. B. 171 ; Johnson v. Credit Lyonnais Co. (1877), 3 C. P. D. 32; 47 L. J. C. P. 241. Agent exceeding Authority Liable in Contract. [19.] COLLEN v. WRIGHT. (1857) [8 E. & B. 647 ; 27 L. J. Q. B. 215.] Mr. Wright was the land agent of a gentleman named Dunn Gardner, and, professing to have authority to do so, he 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 to a CA PA CITY OF PA R TIES— A GENCY. 59 contract ou his part that lie had such authority. This was the view ultimately adopted, so that Wright's execu- tors became liable to Collen. When a man enters into a contract representing himself as agent for a person named at the time the contract was made, the law will not allow him to shift his position and sue as principal on the contract, " declaring himself principal and the other a creature of straw." This was clearly laid down in Bickerton v, Burreil (m), Bickerton where the plaintiff had, at a sale by auction, signed a memorandum v - -Burrell. of purchase as agent for a named principal, and, then, in an action to recover the deposit he had paid to the auctioneer, sought to give evidence that he was really the principal in the matter. It is true that a Court of Equity (/<) has taken a view adverse to the decision in Bickerton v. Burrell, but the authority of the case in equity has been much questioned. It must, too, be carefully noticed that, when the contract has Accept- been in part performed by the plaintiff acting as an agent (0), and ance °f that part performance has been accepted by the defendant with full ? ^ er " knowledge that the plaintiff was not the agent but the real jnin- cipal, then the action is clearly maintainable. The true principle of the cases would seem to be, that, on the professed agent giving the other party notice of his real position before action brought, it is open to the other party either to repudiate the contract altogether, or to ratify it expressly in words or impliedly by his conduct. Although the circumstances may be such that the professed agent A°-ent cannot sue upon the contract, nevertheless, as we have seen from liable as Collen v. Wright, he is liable for the damages sustained bv reason on im P 1 i ied .'.... " warranty, of the assertion of authority being untrue. He cannot, indeed, be sued upon the contract itself, but he is liable on an implied warranty of authority (p). Cases often arise where a contract is signed by one who professes x pr i nc i- to be signing " as agent " for a named principal, but ivhere there is pal really existing. (m) (1816), 5 M. & S. 383. R, 8 C. P. 427 ; 42 L. J. C. P. (») Fellows v. Gwydyr (1832), 1 129 ; Ex parte Panmure (1883), 24 Russ. & M. 83. Gh. D. G27 ; 53 L. J. Ch. 57 ; Fir- (0) Bayner v. Grote (1846), 15 bank v. Humphreys (1886), 18 Q. M. & W. 359 ; 16 L. J. Ex. 69. B. D. 54 ; 56 L. J. Q. B. 57 ; Meek (jj) See also Cherry v. Colonial v. Wendt (1888), 21 Q. B. D. 126 ; Bank of Australasia (1869), L. R. W. N. (1889) 14; 59 L. T. 558; 3 P. C. 24 ; Richardson < . William- Haigh v. Suart, W. N. (1890) 213 • son (1871), L. R. 6 Q. B. 276; 40 Elkington v. Hurter, [1892] 2 Ch'. L. J. Q. B. 145 ; Beattie v. Ebury 452; 61 L. J. Ch. 514 ; and Lillv (1872 . L. It. 7 Ch. 777 ; 7 II. L. v. Smales, [1892] 1 Q. B. 456; 40 102; Weeks v. i'ropert (1873), L. W. R. 544. 60 CAPACITY OF PARTIES— AGENCY. Ratifica- tion. Agent not disclosing name of principal. no such principal existing at the time, so that the contract would be altogether inoperative unless binding upon the person who signed it; as, e.g., where the alleged principal is entirely fictitious, or where a man enters into an engagement on behalf of a company which has not, at the time of the contract, obtained any legal existence ( *■ si partner- (1.) By operation of law ; ^p E.g., through death (s), bankruptcy (t), or conviction for felony. Law (2.) By agreement ; E.g., if entered into for a fixed term, by the expiration of that term, or if entered into for a single adventure or undertaking, by the termination of that adventure or undertaking (?<). (3.) By a judicial decree ; E. g., "Where the partnership was induced by fraud (.r), or where one of the partners neglects his business (y), or becomes perma- nently insane (2), or is always quarrelling with the other partners (a), or when the business can only be carried on at a loss (&). ' ' The interests of partners in the partnership property, and their Rules as to rights and duties in relation to the partnership, are determined, interests subject to any agreement express or implied between the partners, ^ mr £_ by the following rules (c) : — ners, sub- (1.) All the partners are entitled to share equally in the capital J ect to and profits of the business, and must contribute equally aoTe e- towards the losses, whether of capital or otherwise, sus- ment. tained by the firm. (2.) The firm must indemnify every partner in respect of pay- ments made and personal liabilities incurred by him — (a.) In the ordinary and proper conduct of the business of the firm ; or (q) Hart v. Alexander (1838), 2 s. 41 ; Mvcock v. Beatson (1879), M. & W. 484; Bilborough v. 13 Ch. D. 384 ; 49 L. J. Ch. 12?'; Holmes (1876), 5 Ch. Div. 255; 35 Newbigging v. Adam (1888), 13 L. T. 759 ; Scarf v. Jardine (1882), App. Cas. 308 ; 57 L. J. Ch. 1066. 7 App. Cas. 345 ; 51 L. J. Q. B. (y) Harrison v. Tennant (1856), 612. But see Rouse v. Bradford 21 Beav. 482 ; Smith v. Mules Banking Co., [1894] 2 Ch. 32 ; 63 (1852), 9 Hare, 556; 21 L. J. Ch. L. J. Ch. 337. 803 ; Cheesman v. Price (1865), 35 (»•) Carter v. Whalley (1830), 1 Beav. 142. B. & Ad. 11. (z) Rowlands v. Evans (1863), 30 (*) Backhouse v. Charlton (1878), Beav. 302 ; 31 L. J. Ch. 265. 8 Ch. D. 444 ; 26 W. R. 504. (a) Watney v. Wells (1803), 30 (t) Crawshay v. Collins (1826), Beav. 56; 32 L.J. Ch. 194; Leary 15 Ves. 228 ; 1 Jac. & Walk. 278. v. Shout (1865), 33 Beav. 582. (w) Partnership Act, 1890, 8. 32 ; (b) Partnership Act, 1890, s. 35 ; Featherstonhaugh v. Fenwick Jennings v. Baddeley (1856), 3 K. (1810), 17 Ves. 298. & J. 78 ; 3 Jur. N. S. 10S. (x) Rawlins v. Wickham (1858; , (c) Sect. 24. 1 Giff. 355 ; Partnership Act, 1890, 70 CAP A CITY OF PARTIES— PA RTNERS. (b.) In or about anything necessarily done for the pre- servation of the business or property of the firm. (3.) A partner making, for the purpose of the partnership, any actual payment or advance beyond the amount of capital which he has agreed to subscribe, is entitled to interest at the rate of five per cent, per annum from the date of the payment or advance. (4.) A partner is not entitled, before the ascertainment of profits, to interest on the capital subscribed by him. (5.) Every partner may take part in the management of the partnership business. (6.) No partner is entitled to remuneration for acting in the partnership business {etween mortgagor before the mortgage. ing cases. There is, no doubt, considerable misapprehension among laymen What is as to the true position of a mortgagor in respect of his power of the true dealing with the mortgaged premises, especially in regard to the f mort- granting of leases and the creation of tenancies. His position, of g a g° r ? course, varies according to the particular circumstances. In the case of a simple mortgage without any further agreement or condi- tion, the mortgagor becomes a tenant at sufferance of the mort- gagee (?) immediately upon the execution of the deed; but should he remain in possession of the premises, with the consent of the mortgagee, he is then held to be in the position of a tenant at will. Though such consent need not be express, it may, however, be taken that it cannot be implied from the mere fact that the mort- gagee did not oust the mortgagor from the premises directly the mortgage deed was executed. So long as the mortgagor remains no more than a tenant at sufferance he is, of course, not entitled to any notice to quit. It very frequently happens that the mortgage deed contains an Express express covenant that the mortgagor shall remain in possession j^^ort^- until default in payment of the mortgage money at a time certain, gage deed, and, therefore, this covenant operating as a re-demise, until that time arrives the possession of his estate is secured to him : he becomes, in fact, a termor (m). But, if he fail to redeem his pledge by the appointed day, he then becomes a tenant at sufferance to the mortgagee. ' ' The situation of a lessee on the expiration of a term, and a mortgagor who has covenanted that the mortgagee may enter on a certain day, is precisely the same" (//). It must, how- ever, be carefully noted that (in spite of a somewhat conflicting (T) Thunder d. Weaver r. Belcher Bing. N. C. 508; 4 Scott. 301. (1803), 3 East, 449. n) Per Best, C. J., 5 Bing. p. (m) . Wilkinson v. Hall (1837), 3 427. 74 CAPACITY OF PARTIES— MORTGAGORS. decision (o) of doubtful authority), except where there is an express and positive covenant that the mortgagor shall hold for a determi- nate period, there is no re-demise, and the mortgagor is but a tenant at sufferance from the time of the execution of the mort- gage. Thus, where it was provided that, if the mortgagor should pay the principal and interest on the 25th March then next, the mortgagee should re-convey, and there was also a covenant that after default the mortgagee might euter, it was held that the estate was in the mortgagee from the time of the execution of the mort- gage (p). There are, moreover, other special forms of agreement (7) giving rise to the existence of various relations between the parties, and which cannot now be discussed ; but, whenever the mortgagor occupies the premises as tenant at sufferance or tenant at will to the mortgagee, it is clear that he can have no power of letting in sub- tenants, and, if any such are so let in by him, they may un- doubtedly be treated by the mortgagee as tort-feasors. But this remark must be taken as subject to the provisions of the Con- veyancing Act, 1881, to which allusion will presently be made. And it was recently held that, where a mortgagor remaining in possession let the premises to a tenant who brought in trade fixtures, the tenant was entitled to remove the fixtures as against the mortgagee as well as against the mortgagor. See Sanders v. Davis (1885), 15 Q. B. D. 218 ; 54 L. J. Q. B. 576; and Gough v. Wood, [1894] 1 Q. B. 713 ; 63 L. J. Q. B. 564. Recogni- Supposing, however, the mortgagee in any way recognizes their tiou of tenancy (r), they become his tenants at the rent they agreed with tenancy by J v ■" J ... mortgagee, the mortgagor to pay ; and whether such recognition has indeed taken place is a question of fact for the consideration of a jury, but it would seem to be the better opinion that they would not be warranted in inferring it from the mere circumstance of the mort- gagee's knowingly permitting the mortgagor to continue the apparent owner of the premises as before the mortgage (s). Notice by It was once thought that a mortgagee had only to give him mor gagee no ^ ce ^ j^^g one f these persons his own tenant. But it is now enough. clear that there must be some evidence of the man's consent ; and that the tenancy which from the time of that consent begins, is a (0) Doe d. Lyster v. Goldwin De G-. & J. 224 ; 28 L. J. Ch. 547. (1841), 2 Q. B. 143; 1 G. & D. (r) Doe d. Whitaker v. Hales 463. (1831), 7 Bing. 322; 5 M. & P. (;;) Doe d. Boylance v. Lightfoot 132. (1841), 8 M. & W. 553; 5 Jur. (s) Doe d. Rogers v. Cad wallader 9C6. (1831), 2 B. & Ad. 473; Evans v. (?) Jolly v. Arbuthnot (1859), 4 Elliot (1838), 9 A. & E. 342. CA PA CIT Y OF PAR TIES -MOB TG A ORS. 75 new tenancy anrl not merely a continuation oi' the old one between himself and the mortgagor (t). As to the tenant of a mortgagor under a lease made before the mortgage, it may be remarked that, on the execution of the mort- gage, he becomes tenant of the mortgagee, to whom the estate has been conveyed ; and, therefore, the mortgagor could not maintain ejectment for a forfeiture. For, although it is a rule of law that a tenant cannot dispute the title of his landlord, yet ho may confess and avoid it by showing that it is determined (it). It was formerly necessary that the tenant of the mortgagor 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 (as). It often happens that the relation of landlord and tenant is Attorn- created between the mortgagee and the mortgagor by means of the c j ause m insertion of an attornment clause in the mortgage deed. The mortgage, object of this is, of course, to give the mortgagee the benefit of the power of distress possessed by a landlord, and it is a perfectly legitimate device where the arrangement is bond fide and not a mere contrivance for giving a preference to the mortgagee in case of the bankruptcy or insolvency of the mortgagor (y). In such a case the mortgagee is entitled to distrain the goods even of a stranger (z). A considerable modification of the law connected with the sub- Act of ject-matter of this note has been effected by the Conveyancing and Law of Property Act, 1881. It applies to mortgages made after the Act and where no contrary intention is expressed in the mort- gage deed. Subject to the provisions of the Act, the mortgagor while in possession may, if he reserve the best available rent, giant certain leases to take effect in possession not later than twelve months after date. For further information, reference should bo made to the statute itself (a). (t) Brown v. Storey (1840), 1 (x) Rawson v. Eicke (1837), 7 A. Scott, 1ST. C. 9; 1 M. & G. 117; & E. 451 ; 2 N. & P. 4'23 ; Cook v. Waddilove v. Barnett (1836), 2 Guerra (1872), 41 L. J. C. P. 89; Bins?. N. C. 538; 2 Scott, 703; L. R. 7 C. P. 132; Underhay v. Corbett v. Plowden (1884), 25 Ch. Read (1888), 20 Q. B. D. 209 ; 57 D. G78 ; 54 L. J. Oh. 109 ; and L. J. Q. B. 129. Towerson v. Jackson, [1891] 2 (>/) Ex parte Voisey, In re Knight Q. B. 484; 61 L. J. Q. B. 36, (1882), 21 Ch. D. 442; 52 L. J. where it was held that the mere Ch. 121 ; In re Stockton Iron Fur- fact of the tenant remaining in nace Co. (1879), 10 Ch. D. 335; possession after notice by the mort- 48 L. J. Ch. 417. gagees to pay the rent to them (z) Kearsley v. Philips (1883). 11 does not establish an agri ement to Q. B. D. 621 ; 52 L. J. Q. B. 581. become their tenant. (") 11 & 45 Vict. c. 41, s. 18. («) Doe d. Marriott v. Edwards See the recent cases of Municipal (1834), 5 B. & Ad. 1065; 6 C. & P. Building-society v. Smith (1889), 208. 22 Q. B. D. 70; 58 L. J. Q. B. 1881. 76 CAPACITY OF PARTIES— JOINT TENANTS. Judicature Tho Judicature Act, 1873(6), gives power to " a mortgagor Act, 1873. entitled for the time being to the possession or receipt of tho rents and profits of any land as to which no notice of his intention to take possession or to enter into the receipt of the rents and profits thereof shall be given by the mortgagee," to sue for such pos- session, to recover rent due to him, or to bring an action of trespass in his own name ' ' unless the cause of action arises upon a lease or other contract made by him jointly with another person." It has been held that a mortgagor in receipt of rents and profits has a sufficient interest to enable him to maintain an action for an in- junction to restrain an injury done to the mortgaged property, and that without joining the mortgagee as a party (c). Joint Tenancy. ♦ [24.] MORLEY v. BIRD. (1798) [2 Ves. 629.] William Collins by his will gave all his property to his daughter Elizabeth, on condition that she paid to the four daughters of his brother John "four hundred pounds out of seven nou- lying in the £3 per cent, consolidated." Three of John's daughters having died during the testator's lifetime, it was held that Martha, the fourth daughter, who survived him, was entitled to the whole legacy given to the four daughters. "Great doubts," said Sir E. P. Arden, M. R., "have been entertained by judges, both at law and in equity, as to words creating a joint tenancy or a tenancy in common ; and it is clear the ancient law was in favour of a joint tenanc} r . And that law still prevails : unless there are some words to sever the interest taken, it is at this moment 61 ; and Wilson v. Queen's Club, (b) S. 25, sub-s. 5. [1891] 3 Ch. 522; 60 L.J. Oh. (c) Faircloughw. Marshall (1878), 698 4 Ex. D. 37 ; 48 L. J. Ex. 146. CAPACITY OF PARTIES-JOINT TENANTS. 77 a joint tenancy, notwithstanding the leaning of the Courts lately in favour of a tenancy in common This is a legacy to four persons, and there are no words of severance ; therefore it is a joint legacy, and the whole interest survives to the survivor, three being dead." An estate in joint tenancy is one acquired by two or more per- Charac- sons in the same land, by the same title (not being a title by P. . !| descent), at the same period, and without words importing that they tenancy. are to take in distinct shares. Joint tenants are not considered as holding in distinct shares, like tenants in common, but each is Squally entitled to the whole; and it is from this entirety of interest Kio-ht of that the most remarkable incident of joint tenancy, the right of survivor- . " ship, survivorship, arises. But, although there may be no words of severance, special cir- Tenancy in cumstances may sometimes -justify the Courts in construing what common, ... . though no seems to be a joint tenancy to be really a tenancy in common ; e.g., words of the purchase-money being advanced in unequal proportions (d), or severance. the purchase being made for a joint undertaking (e), or, again, in the case of marriage articles (/). So far as the law of contracts is concerned, the most important Leases aspect in which joint tenants and tenants in common can be by joint regarded is as landlords, and on that branch of the subject the tenants in following remarks from a work of great authority in the profession common, may be quoted : — "Joint tenants and tenants in common may, according to the interest they have, join or sever in making leases ; and such leases bind, whether made to commence in prcesenti or in futuro. If joint tenants join in a lease, there is but one lease, and they all make but one lessor, for they have but one freehold ; but if tenants in common join in a lease, there are several leases of their several interests ; for although tenants in common cannot make a joint lease of the whole of their estate, yet if they join in a lease for years by indenture of their several lands, it is the lease of each for their respective parts and the cross-confirmation of each for the part of the other, and no estoppel on either part, because an actual interest passes from each respectively. There is no doubt that a demise by tenants in common, though joint in its terms, ope- rates as a separate demise by each tenant in common of his undivided share, and a confirmation by each of his companions (/) Thompsons. Hakewill (18G5), (<■) Jeffereys v. Small (1G83), 1 19 C. B. N.S. 713; 35 L. J.C. P. 18. V. en. 217. 78 CAPACITY OF PARTIES— JOINT TENANTS. Where joint tenants concur in granting a lease, the interest of the lease continues, notwithstanding the decease of either of the lessors, and the survivor is entitled to the whole rent (A). So, if the lease bo at will, the death of one of the lessors does not operate as a countermand of the tenancy even for a moiety ; all survives to the other, and if the lessee continue his possession, the survivor may maintain an action for the whole rent. But though each joint tenant is considered entitled to the whole while the joint tenancy continues, and is said to be seised ' per my et per tout,' yet, for the purposes of alienation, each has an exclusive right to, and domi- nion over, his own share or proportion ; and therefore if one of two joint tenants make a lease of the whole, his moiety only will pass(/). So, a lease purporting to be made by both, and executed by one only, is a good lease for the moiety of him only who has executed. "If one joint tenant make a lease of his moiety for years, and die before the lessee's entry, the lease will bind the survivor, and the lessee will retain his interest in the moiety demised until his term expire. And so one joint tenant may make a lease to com- mence after his death, and his co-tenant, if he survive, will be bound by it (/>■). " One joint tenant or tenant in common may make a lease for years of his part to his companion " (I). A joint tenancy may be dissolved by partition ; by alienation without partition ; or by accession of interest. A joint tenant, how- ever, cannot leave his share by will, because a will is of no force till the testator is dead, and then the right of survivorship, which accrued at the original creation of the estate, has a prior claim to be considered (m). If one of three joint tenants exercises his power of disposition in favour of a stranger, that person will then hold one undivided third part of the land as tenant in common with the remaining two (■«). (h) Doe v. Summersett (1830), 1 (I) Cowper v. Fletcher (1865), B. & Ad. 135. 6 B. & S. 464; 13 W. R. 739; (i) Bellingham v. Alsop (1605), Woodfall, Landl. & Ten., loth ed. Cro. Jac. 52. p. 13. (k) Clerk r. Clerk (1694), 2 Vera. (;«) Swift r. Roberts (1764), 3 323. Burr. 1488. (m) Wins. R. P., 17th ed. p. 134. 79 Jmw of totak STATUTE OF FRAUDS. Leases for more than Three Years not in Writing. — ♦ — RIGGE v. BELL. (1793) [25.] [5 T. E. 471.] 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 determined 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, for it was held that, " though the agreement be void by the Statute of Frauds as to the duration 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." 80 LEASES NOT IN WRITING. [26.] Explana- tion of Clayton v. Blakey. Walsh v. Lonsdale. Tenancy at will, how created. CLAYTON v. BLAKEY. (1798) [8 T. E. 3.] 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 con- tempt, sued him for double rent for holding over. To this claim Blakey raised the defence that (by virtue of sect. 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 extraordinary. The Statute of Frauds (sects. 1 and 2) distinctly says that all leases by parol for more than three years shall bo 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 merely 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 anything showing an intention to create a yearly tenancy ; if, however, there were no circumstances showing such an intention, the estate would remain an estate at will. A tenant holding under an agreement for a lease of which specific performance would be decreed, now (since the Judicature Act) stands in the same position as to Hability as if the lease had been executed, and is not merely a tenant from year to year by the pay- ment of rent(«). A tenancy at will is an estate in land determinable at the will either of landlord or tenant. It may arise either by implication or (a) Walsh v. Lonsdale (1882), 21 Ch. D. 9 ; 52 L. J. Ch. 2. LEASES NOT IN WRITING. 81 by express -words. In Richardson v. Langridge (5) it was held that if an agreement be made to let premises so long as both parties like, and reserving a compensation accruing de die in diem, and not refer- able to a year or any aliquot part of a year, a tenancy at will is thereby created. Tenancy at will must be carefully distinguished Tenancy from tenancy by sufferance, which is when a person, who has a ^ C g U er " originally come into possession by a lawful title, holds possession after his title has determined. Where, on the expiration of a lease for a year, the tenant remains in possession with the consent of the landlord, and nothing is said or done inconsistent with his holding on under the terms of the lease, the implication of law is, that a tenancy from year to year has been created on the same terms in so far as they are not incon- sistent with a tenancy from year to year(c). A few words may be said as to the notice to quit necessary in the Notice to case of yearly tenants. Such a tenancy may at common law be q 11 ^- determined by half a year's notice expiring at that period of the \i c I eax 3 year at which the tenancy commenced. "Where, however, the necessary, tenancy is within the Agricultural Holdings Act, 1883 {d), a year's Whole notice is generally necessary. The 33rd section of that Act pro- notice yides that : — necessary " "Where a half-year's notice, expiring with a year of tenancy is A). In the case of tenancies for less than a year, the length of the notice depends on the letting. A month's notice is necessary to determine a monthly tenancy (q), and a week's notice is necessary to determine a weekly tenancy (r). In the recent case of Keith, Prowse & Co. v. National Telephone Co. (s), it was held that the demand and acceptance of rent due subsequent to a notice to determine a tenancy of chattels is a waiver of the notice ; and, semble, that when a term in chattels has expired and rent has been subsequently accepted, a tenancy from year to year is created, and the tenant is entitled to six months' notice to {ff) Right d. Fisher v. Cuthell (1804), 5 East, 491. (h) Doe d. Mann v. Walters (1830), 10 B. & C. 626 ; 5 M. & R. 357. (i) Doe d. Armstrong v. Wilkin- son (1840), 12 Ad. & E. 743 ; Doe v. Kightley (1796), 7 T. R. 63 ; 1 Ch. 11. (/,•) Doe d. Matthews v. Jack- son (1779), 1 Dougl. 175 ; Doe d. Lyster v. Goldwin (1841), 2 Q. B. 143 ; 1 G. & D. 463. (1) Jones v. Marsh (1791), 4 T. R. 464 ; and see Tanham v. Nicholson (1872), L. R. 5 H. L. 561 ; 6 Ir. R. C. L. 188. (m) Alford v. Vickery (1842), Car. & Marsh. 280. («) Papillon v. Brunton (1860), 5 H. &N. 518. (o) Doe v. Watkins (1806), 7 East, 551. (p) Pleasant d. Hayton v. Benson (1811), 14 East, 234. (?) Doed. Parry r. Hazell (1794), 1 Esp. 94. (?•) Bowen v. Anderson, [1894] 1 Q. B. 164; 42 W. R. 236; ex- plaining Sandford v. Clarke (1888), 21 Q. B. D. 398 ; 57 L. J. Q. B. 507 ; and following Jones v. Mills (1861), 10 C. B. N. S. 788; 31 L. J. C. P. 56. And see Harvey v. Copeland (1892), 30 L. R. Ir. 412 , and. Huffell v. Armitstead (1835), 7 C. & P. 56. (s) [1894] 2 Ch. 147; 63 L. J. Ch. 373. DEBT, DEFAULT, OR MISCARRIAGE. 83 determine the tenancy, whatever may have been the length of notice required during the continuance of the original tenancy (t). By 4 Geo. 2, c. 28, s. 1, "if a tenant for life or years contu- Holding maciously disregards his landlord's written requirement to give up te^an/told the premises, and wrongfully holds over, he will be liable to pay to go. compensation at the rate of douhle the yearly value." The statute, however, does not apply to weekly tenancies («), nor (probably) to a tenancy from quarter to quarter (x). In the calculation of the double value, only the land and its appurtenances can be included ; therefore not the value of the power of an engine let with a mill (y). By 11 Geo. 2, c. 19, s. 18, if a tenant who has given notice him- Holding over dv self holds over, he will become liable to pay double the yearly rent, tenant who This statute applies only to those cases where the tenant has the has himself power of determining his tenancy by a notice, and where he has | ti ce f actually given such a notice (2). But it applies to all kinds of going. tenancies («). Debt, Default, or Miscarriage. — ¥ — BIRKMYR v. DARNELL. (1704) [27.] [6 Mod. 248 ; 2 Ld. Kayai. 1085.] " My friend, Mr. Lightfinger, wants a horse ; will you lend him yours ? " said Darnell meeting Birkmyr one day in 1700. "Well, I don't mind," replied Birkmyr, "if you'll be responsible for his letting me have it safely back again." " Certainly I will," replied Darnell emphatically. On the faith of this collateral undertaking, Birkmyr lent Lightfinger the horse. It was not returned, so he sued Darnell as surety. This, however, did him no good, (t) Sed qucere, whether this doc- (y) Robinson v. Learoyd (18-10), trine is not, at least, stated in too 7 M. & W. 48. general terms. (2) Johnstone V. Huddleston (m) Lloyd v. Rosbee (1810), 2 (1825), 4 B. & C. 922 ; 7 D. & R. Camp. 453. 411. (x) Sullivan v. Bishop (1 820), 2 (a) Timmins r.Rawlinson (1765), C. & P. 359. 3 Burr. 1603 ; 1 W. Bl. 533. g2 84 DEBT, DEFAULT, OR MISCARRIAGE. because he found that he ought to have taken Darnell's promise in writing in accordance with the 4th section of the Statute of Frauds, 29 Car. 2, c. 3. [28.] MOUNTSTEPHEN v. LAKEMAN. (1874) [L. E. 5Q.B. 613; 7 H. L. 17.] 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 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 objection to making the connections too ? " " Certainly not, Sir ; if you or the Board will order the work or become responsible for the payment." " Well, then," said Lakeman, " go and do it ; / 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 authorized the work. Mount- stephen, therefore, brought an action against Lakeman, and it was held that Lakeman's words ice re evidence to sustain DEBT, DEFAULT, OR MISCARRIAGE. 85 a claim against him personal///, and that they did not constitute a promise to pay the dent of another. The test as to whether or not any undertaking for another should Who is have been in writing is this : — Does that other, after the undertaking H^wfp y has been made for him, remain primarily liable? If (like the man who went off with the horse) he does, the undertaking cannot bo sued on unless it is in writing ; if (like the Brixham Board) he does not, it is binding, though not in writing. If I go with you to a tailor's, and say to the tailor "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 successfully sued as your surety, because my promise is not in writing. But suppos- ing, when we go into the shop, I say, "Make this gentleman a pair of trousers, and put them down to me," here you are not jirimarily liable, and therefore the 4th section of the Statute of Frauds does not require niy promise to be in writing. So, too, if the effect of the iindertaking is to extinguish another Extinction 2>erson , s debt, so that, though up to that time he has been liable, ° e ' he remains so no longer, the undertaking is binding, though 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 remained solely liable (6). So, too, if goods are furnished to a married woman under a contract not binding on her separate estate or (not being necessaries) to an infant at the defendant's request, the defendant's undertaking to pay for them is not collateral, because the married woman or infant is not primarily Liable (c). When the undertaking has been by word of mouth, it is for the Keate v. jury to say whether or not the person for whose benefit the promise - lem P le - 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 a case that may usefully bo compared with Mountstephen v. Lakeman is Keate v. Temple, where a Portsmouth tailor tried unsuccessfully to make a lieutenant in the navy pay for a quantity of coats supplied to his crew, the defendant having said, " I will see you paid at the (h) Goodman v. Chase (1818), 1 883; 5 Scott, 213. B. & Aid. 297; and see Bird v. (c) Harris v. Huntback (1757), 1 Gammon (1837), 3 Bing. N. C. Burr. 373. 86 DEBT, DEFAULT, OR MISCARRIAGE. Distinction between guarantee and in- demnity. Sutton r, Grey. Del credere agent. pay-tablo " (d). Eyre, C.J., in delivering the judgment of the Court, said, " There is one consideration, independent of everything else, which weighs so strongly with mo, that I should wish this evidence to be once more submitted to a jury. The sum recovered is £576 7s. 8'?., and this against a lieutenant in the navy : a sum so large that it goes a great way towards satisfying my mind that it never could have been in the contemplation of tho defendant to make himself liable, or of tho plaintiff to furnish the goods on his credit to so large an amount. . . . From the nature of the case it is apparent that the men were to pay in the first instance. . . . The question is, whether the plaintiff did not in fact rely on the power of the officer over the fund, out of which the men's wages wore to be paid, and did not prefer giving credit to that fund rather than to the lieutenant, who, if we are to judge of him by others in the same situation, was not likely to be able to raise so large a sum." The question whether an undertaking to be liable for another amounts to a guarantee, within the meaning of sect. 4 of the Statute of Frauds, or is simply an indemnity, is often very difficult to de- termine. The distinction has very recently been dealt with by the Court of Appeal in two cases which will probably in future be considered as the leading cases on the subject. In Sutton v. Grey (e) the plaintiffs, a firm of stockbrokers, by a verbal agree- ment with the defendant, undertook to transact business and bo answerable upon the Stock Exchange for customers whom the de- fendant should introduce, upon the terms that the defendant should receive half of the commission earned upon, and be liable to the plaintiffs for half the losses arising from such transactions. Owing to the default of a customer a loss was incurred by the plaintiffs, the half of which they sought to recover under this agreement ; and it was held that the promise to be answerable for the losses was the ultei'ior consequence only to the agreement, the main object of which was to regulate the terms of the defendant's employment in respect of transactions in which he was interested ; that, therefore, the contract was one of indemnity and not a promise to guarantee the debt of another person, and that sect. 4 of the Statute of Frauds did not apply. Lord Esher, M.R., in his judgment referred with approval to the test laid down by Parke, B., in Couturier v. Hastie ( / ) (where it was held that the undertaking of a del credere agent, who vouches for the purchaser's solvency, is not within the statute ; for though the undertaking may result in a liability to (d) (1797), 1 Bos. &P. 158. (e) [1894] 1 Q. B. 285 ; 63 L. J. Q. B. 633. (/') [1852] 8 Ex. 40; 22 L. J. Ex. 97. See, also, per Cockburn, C. J., in Fitzgerald v. Dressier (1859), 7 C.B.N. S. 374; 29 L. J. C. P. 113. DEBT, DEFAULT, OR MISCARRIAGE. 87 pay the debt of another, that is not the immediate object for which the consideration is given), which was stated to be whether the per- son xvho makes the promise is, but for the liability which attaches to him by reason of the promise, totally unconnected with the transaction, or whether he has an interest in it independently of the promise. In Guild v. Conrad (g) the defendant orally promised the plaintiff Guild v. that, if he, the plaintiff, would accept certain bills for a firm in onra ' which the defendant's son was a partner, he, the defendant, would provide the plaintiff with funds to meet the bills. It was held that as this was a promise to be liable primarily or in any event for a debt for which another person was already or was to become liable, irrespective of the question whether or not that person failed to satisfy that liability, it was an indemnity and not a guarantee, and consequently need not be in writing. The undertaking, to be within the statute, must be given to Promise to the creditor. The leading case on this subject is Eastwood v % w i t h m Kenyon(/j), where the defendant promised the plaintiff to see to statute, the settlement of a debt which the latter owed to a third person. The promise was held to be binding, though not in writing. So, in another case, 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. This promise, also, was held not to require writing, because not made to the original creditor (*). Again, in the recent case of In re Hoyle(/i), a partner in a firm agreed to indemnify the firm against certain debts owing by a named person to the firm ; and this contract was held not to be a promise to answer for the debt of another person within the 4th section of the Statute of Frauds. "I think," said Bowen, L.J., ' ' that to bring a promise within the statute, the debt for which the defendant has promised to answer must be a debt due to the person to whom the promise is made, and that the promise must be made to a person who could bring an action for the debt." Before a guaranty can become binding on the guarantor it must Guaranty he accepted by the person to whom it is offered. A man once wrote accepted. to some publishers at Derby the following letter : — " Gentlemen, " Doncaster, July 5th, 1833. " Mr. France informs me that you are about publishing (ff) [1894] 2 Q. B. 885 ; 63 L. J. 444 ; followed and approved in Q. B. 721. Guild v. Conrad, supra; but see (h) (1840), 11 Ad. & E. 438; 3 also the doubtful decisions of Green P. & D. 276. v. Cresswell (1839), 10 Ad. & E. U) ) Reader v. Kingham (1862), 453 ; and Crippsv. Hartnoll (1862), 13 C. B. N. S. 344 ; 32 L. J. C. P. 2 B. & S. 679 ; 31 L. J. Q. B. 150. 108; and see Thomas v. Cook (k) [1893] 1 Ch. 84; 62 L. J. (1828), 8 B. & C. 728 ; 3 M. & B. Ch. 182, 88 THE MEMORANDUM OR NOTE IN WRITING. an arithmetic for Mm and another person, and I have no objection to being answerable as far as £50. For my reference, apply to Messrs. Brooke & Co. , of this place. " I am, Gentlemen, your most obedient servant, "Geo. Tinkler. " Witness to Mr. Tinkler, ' ' J. Brooke. " To Messrs. Mozley & Son, Derby." Mozley & Son vouchsafed no reply to this letter, but proceeded to publish the arithmetic. It was held in an action which they afterwards brought against Tinkler, that they could not treat his letter as a guaranty because they had never accepted it J). Torts. It is to be observed that the words of the statute ( ' ' debt, default, or miscarriage") do not refer exclusively to contracts. Accordingly, if my friend Jones wrongfully takes Brown'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 (m). As to the release of a surety, and contribution between co- sureties, BQQpost, pp. 307, 312. Tlic Memorandum or A T ote in Writing. [29.] WAIN v. WARLTERS. (1804) [5 East, 10; 1 Smith, 299.] Mr. "Warlters was decidedly a fortunate litigant. He had a friend named Hall, who became indebted to Messrs. Wain & Co. to the extent of £56, and with no particular means of payment. To extricate this friend from his (l) Mozley v. Tinkler (1835), 1 M. & S. 557. C. M. & R. 692 ; 5 Tyr. 416 ; and (m) Kirkham v. Marter (1819), 2 see M'lver v. Richardson (1813), 1 B. & Aid. 613 ; 1 Chit. 382. THE MEMORANDUM OR NOTE IN WRITING. 89 difficulties "Warlters sat down and wrote out the following collateral security : — " Messrs. Wain Sf Co., " I mil engage to pay you by half-past four this day £56 and expenses on bill that amount on Hall. " {Signed) Jonathan Warlters. " No. 2 Cornhill, April 30th, 1803." Hall, of course, did not pay the money. So Wain & Co. sued Warlters on his guaranty. But the document was held to be mere waste paper, as no consideration for Warners' 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 the agreement as the promise. But though Wain v. "Warlters is there- Considera- fore a perfectly correct interpretation of the statute, the law on the notappear subject (so far as regards guaranties) has been changed by the Mercantile Law Amendment Act of 1857 (n). Guarantors 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. The promise, however, must still be in writing just as much as before (o). Wain v. "Warlters is generally considered the leading case on Thememo- the " memorandum or note in writing " spoken of in the Statute of r£ "jdum or ° r note m Frauds. It is necessaiy that this memorandum should have been writing. made before the commencement of the action (p). It need not be very Before precise in its terms, the principle being that it is just such a memo- actlon - rand urn as merchants in the hurry of business might be supposed to make. It is necessary, however, that the names of both parties, or, Names or at all events, a clear description of them should appear (q). If the descrip- vendor is described in the contract as "proprietor," "owner," " mortgagee," or the like, the description is sufficient, although he is not named; but if he is described as " vendor," or as " client," In) 19 & 20 Vict. c. 97, 8. 3. 161. (o) Holmes v. Mitchell (1859), (q) Vandenbergh v. Spooner 7 C. B. N. S. 361 ; 28 L. J. C. P. (1866), L. R, 1 Ex. 316 ; 35 L. J. 301. Ex. 201; Sale v. Lambert (1874), (p) Bill v. Bament (1841), 9 M. L. R. 18 Eq. 1 ; 43 L. J. Ch. 470 ; & W. 36 ; Lucas v. Dixon (1889), Rossiter v. Miller (1878), 3 App. 22 Q. B. D. 357 ; 58 L. J. Q. B. Cas. 1124 ; 48 L. J. Ch. 10. 90 THE MEMORANDUM OR NOTE IN WRITING. Terms. Subject- matter. Signature. or "friend" of a named agent, that is not sufficient; the reason given being, in the language of Lord Cairns, that the former description " is a statement of matter of fact, as to which there can be perfect certainty, and none of the dangers struck at by the Statute of Frauds can arise " ; the reason against the latter descrip- tion being that, in order to find out who is the vendor, client, or friend, you must go into evidence on which there might possibly, as in Potter v. Duffield(r), bo a conflict, and that, says the late Master of the Rolls in the last-named case, ' ' is exactly what tho Act says shall not be decided by parol evidence." "I should bo thrown," he continues, " on parol evidence to decide who sold the estate, who was the party to the contract, the Act requiring that fact to be in writing " (s). So, too, when upon a contract for a mortgage of land, the solicitor for the intending mortgagor wrote a letter in which he said that he had called on ' ' the solicitors to the proposing lender, and had arranged the proposed loan," it was recently held (t) not to be a sufficient description of the intended mortgagee. The terms also must be stated, e.g., the price, if set- tled (w). In Ashcroft v. Morrin(a;), it was held that an order for goods "on moderate terms " was sufficient to satisfy the statute. The subject-matter of a contract of sale need not be described very precisely, parol evidence being admissible for the purpose of identi- fication. Thus, " the property in Cable Street " (y), " the house in Newport " (z), and " the land bought of Mr. Peters " (a), have been held to be sufficient descriptions. A memorandum may be sufficient although addressed to a third party (6), and even though repudiating a contract (c). The signature may come in any part of the document, even at the top, as " /, James Crockford, agree to sell" (d). But it must govern every part of the instrument (e). It may be by initials (>•) (1874), L. R. 18 Eq. 4; 43 L. J. Oh. 472. (s) Per Kay, J., in Jarrett v. Hunter (1886), 34 Ch. D. 182 ; 56 L. J. Ch. 141. See also Stokell v. Niven (1889), W. N. 46, 100; 61 L. T. 18 ; Coombs v. Wilkes, [1891] 3 Ch. 77 ; 61 L. J. Ch. 42. (t) Pattle v. Anstruther (1894), 69 L. T. 174; 4 P. 470. («) Elmore v. Kingscote (1826), 5 B. & C. 583 ; 8 D. & R. 343 ; Acebal v. Levy (1834), 10 Bing. 376; 4 M. & S. 217; but see Hoadley v. McLaine (1834), 10 Bing. 482 ; 4 M. & S. 340. (z) (1842), 4 M. & G. 450; 6 Jur. 783. (y) Bleakley v. Smith (1840), 11 Sim. 150. (z) Owen v. Thomas (1834), 3 M. & K. 353. (a) Rose v. Cunynghame (1805), 11 Ves. 550. (b) Gibson v. Holland (1865), L. R. 1 C. P. 1 ; 35 L. J. C. P. 5. (c) Bailey v. Sweeting (1861), 9 C. B. N. S. 857; 30 L. J. C. P. 150 ; Elliott v. Dean (1884), 1 C. & E. 283. (d) Knight v. Crockford (1794), 1 Esp. 190. (e) Catonv. Caton (1867), L. R. 2 H. L. 127 ; 36 L. J. Ch. 886. THE MEMORANDUM OR NOTE IN WRITING. 91 (probably) or mark (even though the person can -write (/)), and it may be printed or stamped (/) Harman r. Reeve (1856), 18 ( on real property or on another chattel " (k). In other words, the ables. complete thing sold is never sold as a chattel, nor are its incomplete materials, though chattels, sold at all in the incomplete state (/). Lee v. Griffin is also occasionally referred to as an authority on Exemp- the law relating to exemptions from stamp duty. The following tions irom agreements need not be stamped : — duty. (1.) An agreement or memorandum, the matter whereof is not of Below £5. the value of £o, or is incapable of pecuniary measurement. (2.) An agreement or memorandum for the hire of any labourer, Hire of artificer, manufacturer, or menial servant. servant. (3.) An agreement, letter, or memorandum made for or relating Sale of to the sale of any goods, wares, or merchandise. goods. (In the leading case it was held that an agreement to make a chattel and deliver it within a certain time is within the exemption), and (4.) An agreement or memorandum made between the master Coasting. and mariners of any ship or vessel for wages or any voyage coast- wise from port to port in the United Kingdom. Moreover, when there are several documents, but the papers form Several in fact only one agreement, only one of them need be stamped. documeuts —. , . . '. ., . , . . but one ±>ut several stamps are necessary in the case of distinct contracts, contract. though on the same paper (to). One docu- When an unstamped instrument in writing, which ought to have ment J? been stamped, has been lost, and evidence of its contents cannot be contracts. given. If, however, there is no evidence whether it was stamped ^ os ^ m_ or not, it is presumed to have been properly stamped («). If a transaction is capable of being legally proved by other xJn- evidence than that of the unstamped document, such evidence is stamped receipt. (k) Benjamin on Sale, p. 108, "Commentary on Sale of Goods quoting Tripp v. Armitage (1839), Act," p. 4, quoting per cur. in 4 M. k W. 687 ; 1 II. & H. 442 ; Clark v. Buhner, supra, at p. 250. Clark v. Bulmer (1843), 11 M. & (m) Powell v. Edmunds (1810), \V. 243; and see Anglo-Egyptian 12 East, G. Nav. Co. v. Reirnie (1875), -L. R. (») Marino Investment Co v 10 C. P. 271; 44 L. J. O. P. 130. Haviside (1872), L. R. 5 H. L. (1) Kcr and. Pearson- Ceo in 624; 12 L. J. Ch. 173. j_0(5 LORD TENTERDEN'B ACT. admissible. For instance, though an unstamped receipt is no evi- dence of payment, the fact of payment may be proved by anyone who saw it, and he may use the unstamped receipt to refresh his memory (o). Use of An unstamped agreement is admissible for collateral purposes, agreement' an(i ia crimilial cases. A stamp may be added on payment of the unpaid duty, a penalty of £10, and an additional sum of £1. Contract contained in several Documents. [36.] BOYDELL v. DRUMMOND. (1809) [11 East, 142; 2 Camp. 157.] This action was brought by some publishers against a person who had agreed to take a quantity of Shaksperian engravings, coming out periodically during a number of years. It was necessary to the publishers' case to show that the agreement was in tvriting, as it was in its terms incapable of performance within the year. There had been a prospectus which the defendant had seen, and a " Shakspeare subscribers, their signatures " book, in which he had entered his name; and the plaintiffs thought this would do. It was held, however, that, as there was no means of connecting the " Shakspeare Subscribers " book with the prospecttis without oral evidence, — no reference being made by the one to the other — they did not constitute a sufficient memorandum. Another point the publishers tried to make was that, as the defendant had taken and paid for several numbers, there was sufficient "performance" to satisfy the statute. (o) Kambert v. Cohen (1803), 4 Esp. 213. CON Til ACT CONTAINED IN SEVERAL DOCUMENTS. 107 Bat it was held that part performance would not do, for performance could not mean anything less than completion. This case is the leading authority for the rule that, though a contract may be collected from several documents, those documents must be so connected in sense that oral evidence is unnecessary to show Connected their connection ; in other words, they must be left to speak for ^ sense - themselves (j>). In the recent case of Oliver v. Hunting (1890), 44 Ch. D. 205 ; 59 L. J. Ch. 255, Kekewich, J., thought that modern decisions have extended this principle, and remarked, "wherever parol evidence is required to connect two written documents together, then that evidence is admissible. You are entitled to rely upon a written document, which requires explanation. Perhaps the real principle upon which that is based is, that you are always entitled, in regarding the construction and meaning of a written document, to inquire into the circumstances under which it was written, not in order to find an interpretation by the writer of the language, but to ascertain from the surrounding facts and circum- stances with reference to what, and with what intent, it must have been written. I think myself that must be the principle on which parol evidence of this kind is admitted." The following cases also should be consulted, namely, Jones v. Victoria Graving Dock (1877), 2 Q. B. D. 314, 324 ; 4G L. J. Q. B. 219; Bishton v. Yvhatmore (1878), 8 Ch.D. 467; 47 L. J. Ch. 629 ; and Wylson v. Dunn (18S7), 34 Ch. D. 569 ; 56 L. J. Ch. 855. " The statute," said Cranworth, C, in an important case (q), "is Ridgwayr. 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 agreement 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 resorted 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 ob- served, is a fact collateral to the contract, is established by parol (p) See Taylor v. Smith, [1893] 3 D. M. & G-. fi?7 ; 6 H. L. C. 2 Q. B. 65 ; 61 L. J. Q. B. 331. 238 ; and see Hussey v. Horne- (o) Ridgway v. Wharton (1857), Payne (1879), 4 App. Ca. 311 ; 48 L. J. Ch. 846. 108 CONTRACT CONTAINED IN SEVERAL DOCUMENTS. Part per- formance. Maddison r. Alderson. evidence, the contract itself is wholly in writing signed by the party." In a recent case, in which the question was whether a person had broken a contract to sell some land 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 con- nected with a receipt for the deposit which the seller had signed to form a binding agreement (r). So, in Cave v. Hastings (s), which was an action for breach of an agreement to hire a carriage for a year, it was held that a letter of the defendant's to the plaintiff referring to " our arrangement for the hue of your carriage" was sufficiently connected with a document setting forth the terms of the agreement. Studds v. Watson (1884), 28 Ch. Div. 305 ; 54 L. J. Ch. 626; and Craig v. Elliott (1885), 15 L. E. Ir. 257, are to the same effect. On the effect of part performance the equity leading case of Lester v. Eoxcroft (t) should be referred to. Courts of Equity have long been in the habit when there were acts of part performance, and the nature of the case seemed to require equitable interference, of decreeing specific performance of verbal agreements unenforce- able at law, by reason of the 4th section of the Statute of Frauds, as being contracts concerning land. The general rule is that, to justify such interference, the parties must, by reason of the Act relied on, be in a position unequivocally different from that in which, according to their legal rights, they would have been if there were no contract {u). In such cases the Court will try and ascertain what was the oral contract between the parties, and then will give effect to it (03). But, as has been often observed, the Court will enforce, but cannot make contracts ; and therefore where the contract is incomplete, or its terms uncertain, specific performance will not be decreed (y). The recent and interesting case of Maddison v. Aider- son (2) may be referred to on this subject. It was a case where a (>■) Long v. Millar (1879), 4 C. P. D. 450 ; 48 L. J. C. P. 596. (s) (1881), 7 Q. B. D. 125; 50 L. J. Q,. B. 575. But see Coombs v. Wilkes, [1891] 3 Ch. 77; 61 L. J. Ch. 42. (0 (1701), Colles' P. _ C. 108. And see the notes to this case in White and Tudor' s Leading Cases in Equity, 6th ed., p. 881. (w) Dale v. Hamilton (1846), 2 Phil. 266 ; 5 Hare, 369 ; and see Surcome v. Pinniger (1853), 3 D. m. & a. 571. (*) Mundy v. Jolliffc (1839), 5 Myl. & Cr. 167. (y) Thynne v. Glengall (1848), 2 H. L. C. 131 ; Williams v. Evans (1875), L. R. 19 Eg.. 547 ; 32 L. T. 360. (z) (1883), 8 App. Ca. 467; 52 L. J. Q. B. 737. See also May v. Thomson (1882), 20 Ch. D. 705 ; 51 L. J. Ch. 917 ; Britain v. Rossiter (1879), 11 Q. B. T>. 123 ; 48 L. J. Ex. 362 ; Humphreys v. Green (1882), 10 Q. B. D. 148 ; 52 L. J. Q. B. 140 ; and M'Manus v. Cooke (1887), 35 Ch. D. 681 ; 56 L. J. Ch. 662. CONTRACT CONTAINED IN SEVERAL DOCUMENTS. 109 woman had been induced by an old Yorkshire farmer to serve him as housekeeper without any wages for a number of years on the faith of his verbal promise to make a will leaving her a Life estate in the farm. It was held that the continuance in the farmer's service in reliance on this promise was no answer to the 4th section of the Statute of Frauds, because it was not unequivocally and in its own nature referable to the contract. no NEGOTIABLE INSTRUMENTS. Negotiable Instruments are Transferable like Cash on Delivery. [37.] Nemo dat quod 7ion habet. Exception in favour of nego- tiable in- struments. MILLER v. RACE. (1791) [1 Burr. 452.] One December night, about the middle of the last century, the mail from London to the West was attacked by highwaymen. Amongst other things taken was a banknote for £21 10s., which a Mr. Finney of London was sending down by the general post to a client in Oxfordshire. The next day the news of the disaster reached the ears of Mr. Finney, who rushed off imme- diately to the bank and stopped payment of the note. A few days afterwards, the plaintiff, who had come by the note quite honestly and had given value for it, pre- sented it at the bank ; but Mr. Race, one of the bank clerks, not only refused to cash it, but even to hand it back. Miller therefore sued him, and succeeded in making him cash it. The leading case engrafts on the well-known rule that no one can acquire a title to a chattel personal from a man who has himself no title to it an exception in favour of all negotiable instruments. Whenever a man receives one of these instruments bond fide, and having given valuable consideration for it, he is not to lose his money because the document's history is of an unsatisfactory NEGOTIABLE INSTRUMENTS. HI character (a). If, however, lie receives it maid fide, it is different. Unless A good-for-nothing clerk received some notes and money for his f^ fi j master, and then went and laid them out with the defendant in illegal insurances of lottery tickets. The defendant knew that he was doing wrong : so the clerk's master was allowed, on proving their identity, to recover them (b). But mala fides, in such cases, must always be distinctly proved ; it will not be sufficient to show that the defendant was guilty of carelessness in taking the instru- ment, if he did not take it dishonestly (c). The judgment of Lord London Herschell. in the London Joint Stock Bank v. Simmons (d), contains -g 01 n £ , an excellent discussion of the law on this point. After approving Simmons, the earlier authorities (e ), which establish the rule that negli- gence does not invalidate the title of a person taking a negotiable instrument in good faith and for value, the learned lord added : — ' ' I should be very sorry to see the doctrine of constructive notice introduced into the law of negotiable instruments. But regard to the facts of which the taker of such instruments had notice is most material in considering whether he took in good faith. If there be anything which excites the suspicion that there is something wrong in the transaction, the taker of the instrument is not acting in good faith if he shuts his eyes to the facts presented to him, and puts the suspicions aside without further inquiry." As to what constitutes a "holder for value," the recent case of Holder for the Royal Bank of Scotland v. Tottenham^/) may be referred to. It va ue ' was there held, that when a person pays a cheque into his bank in order that the amount of it may be placed to the credit of his account, and the amount is so placed, the bank are holders for value of the cheque. A negotiable instrument has been defined as an instrument which Various upon delivery transfers the legal right to the property secured by it to s f -°t-, the person to whom it is delivered. The most familiar negotiable in- instru- ments. (a) See, however, the (so-called) (d) [1892] A. C. 201 ; 61 L. J. important case of Bank of England Ch. 723. v. Vagliano, [1891] A. C. 107 ; 60 (e) Per Parke, B., in Foster v. L. J. Q. B. 145 ; although the Pearson (1835), 1 C. M. & E. at judgments are instructive, Lord p. 855 ; per Lord Brougham in Bramwell was not far wrong in Bank of Bengal v. Pagan (1852), 7 saying that "the head-note which Moore, P. 0. 72; per Willes, J., will represent the decisions of your in Raphael v. Bank of England Lordships should be in a strictly (1855), 17 C. B. atp. 175. Accord- concrete form, stating the facts and ingly, Gill v. Cubitt (1824), 3 B. & Baying that on them it was held C. 466, and Down v. Hailing (1825), that judgment should be for the 4 B. & C. 330, are overruled on this appellants." point. («) Clarke v. Shee (1774), Cowp. (/) |"1894] 2 Q. B. 715 ; 64 L. J. 199. Q. B. 99 ; following Ex parte Rich- (c) Goodman v. Harvey (1836), dale (1882), 19 Ch. D. 409; 51 L. 4 Ad. & E. 870. J. Ch. 462. 112 NEGOTIABLE INSTRUMENTS. How nego- tiable in- strument arises. Crouch and his worthless debenture. Scrip of foreign govern- ment. Scrip cer- tificates of banking company. Restrict- ing nego ■ liability. strunients are bills and notes. A bill of exchange is an uncon- ditional order in writing addressed by one person to another, signed by the person giving it, requiring tbo person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to or to the order of a specified person, or to bearer(«) See note to Wennall v. Adney (1802), 3 B. & P. 249. (n) Jakeman v. Cook (1878), 4 Ex. Div. 26 ; 48 L. J. Ex. 165, distinguishing Heather v. Webb (1876), 2C. P.D.I; 46 L. J. C. P. 89. See also Ex parte Bar- row (1881), 18 Ch. D. 464; 50 L.J. Ch. 821. (o) Mortimore v. Wright (1840), 6 M. & W. 482. (p) Shelton v. Springett (1851), 11 C. B. 452. (q) Kennedy v. Brown (1863), 13 C.^B. N. S. 677 ; 32 L. J. C. P. 137 ; Robertson v. Macdonogh (1880), 14 Cox, C. C. 469; Swin- fen v. Chelmsford (1860), 5 H. & N. 890 ; 29 L. J. Ex. 382. (>•) Egan v. Kensington Union (1841), 3 Q. B. 935, n. MORAL CONSIDERATION. 127 governed by the Medical Act, 1886 (49 & 50 Vict. c. 48), the Medical Act, 1858 (21 & 22 Vict. c. 90), and the Apothecaries Act, 1815 (55 Geo. III. c. 194). A registered practitioner cannot recover for the services of an unregistered assistant (s). The General Council of Medical Education have power to strike a practitioner off the register, and if they do so bond fide, and after due inquiry, there is no appeal (t). The law regarding persons practising dentistry is contained in Dentists, the Dentists Act, 1878 (41 & 42 Vict. c. 33). As to chemists and chemists, druggists, see the Pharmacy Act, 1868 (31 & 32 Vict. c. 121) ; and as to veterinary surgeons, see the Veterinary Surgeons Act, 1881, veterinary (44 & 45 Vict. c. 62). surgeons. (s) Howarth v. Brearley (1887), (t) Allbutt v. General Council of 19 Q. B. D. 303 ; 56 L. J. Q. B. Medical Education (1889), 23 Q. 543. B. D. 400 ; 58 L. J. Q. B. 606. 128 REALITY OF CONSENT— MISTAKE. BEAUTY OF CONSENT. Recovery of Money Paid tinder Mistake, &e. — ♦ — [42.] MARRIOTT v. HAMPTON. (1797) [7 T. E. 269 ; 2 Esp. 546.] Hampton sold goods to Marriott. These Marriott duly paid for and obtained a receipt. By-and-by Hampton sent in bis bill again. Marriott bad a distinct recollection of having paid for the goods and said so. Hampton, however, challenged him to show a receipt, and though 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. But after a while the missing receipt was found, and Marriott now went to law with the tradesman to force him to repay the money. The reader will be grieved to hear that his efforts were not crowned with the success they deserved. Lawyers must live, of course ; but interest reipublicce ut sit finis Ktium, and there would be no end to litigation if everybody could have their cases tried over again when fresh evidence came to light. Ignorantia Money paid under a mistake OF material facts, and which the facti partv receiving it has no claim in conscience to retain, is recover - excusat. . able as money paid without consideration. Ignorantia facti excusat. Two persons once 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 he had made of the partnership accounts. He after- REALITY OF CONSENT— MISTAKE. 129 "wards discovered that the profits were not so great as lie 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 (a). And money so paid in ignorance may be recovered back, though the defendant cannot be put in statu quo{b). In a recent case it appeared that a man in Durrant v. Norfolk had by mistake paid to the Ecclesiastical Commissioners, statical who were owners of the tithes of the parish, tithe rent-charge in Commis- respect of lands not in his occupation. He did not discover his S10ner3, mistake till the two years limited by 6 & 7 Will. IV. c. 71, for the recovery of a tithe rent-charge had expired, and the Ecclesiastical Commissioners had consequently lost their remedy for the arrears against the lands actually chargeable. It was held, however, in an action brought by this man against the Commissioners, that he was not bound to find out his mistake within any particular time, and that, having found it out, he could recover the money (c). More- over, money paid in bond fide forgetfulness of a fact once known to the plaintiff, under a "blind suspicion " of the facts, or in the hurry of business, can be got back (d). It is not, however, every seeming mistake of fact which will Chambers * • • v T\f iII pt* enable a party to recover money paid m ignorance. "Where, for instance, bankers cash a customer's cheque, and then discover that they have no assets of his, they cannot recover the money back from the person to whom they have paid it (e). In such a case the bankers by a very moderate amount of inquiry might have ascer- tained that the cheque presented to them ought not to be honoured, and therefore there was really no mistake. " All the facts," said Williams, J., "are precisely as the cashier apjn'ehended them. (a) Townsend v. Crowdy (1860), arrears. See sects. 81 and 82. The 8 C. B. N. S. 477 ; 29 L. J. C. P. Tithe Act of 1891, 54 Vict. c. 8, 300; Milnes v. Duncan (1827), 6 s. 10 (2), however, limits to two B. & C. 671 ; 9 D. & R. 731 ; and years the time within which pro- Lucas v. Worswick (1833), 1 M. & ceedings must be commenced to Rob. 293. recover tithe rent-charge, which (b) Standish v. Ross (1849), 3 first becomes payable subsequent Ex. 527 ; 19 L. J. Ex. 185. to 26th March, 1891. (c) Durrant v. Eccl. Comm. (d) Kellv v. Solari (1841), 9 M. (1880), 6 Q. B. D. 234; 50 L. J. & W. 54 ; "6 Jur. 107. See, how- Q. B. 30; distinguishing Cocks v. ever, Barrow v. Isaacs, [1891] 1 Masterman (1829), 9 B. & C. 902 ; Q. B. 417 ; 60 L. J. Q. B. 179. 4 M. & R. 676. There is, how- (e) Chambers v. Miller (1862), ever, some mistake in the report of 13 C. B. N. S. 125 ; 32 L. J. C. P. this case, for the Tithe Act, 6 & 7 301 ; Aiken v. Short (1856), 1 H. Will. IV. c. 71, did not limit the & N. 210; 35 L. J. Ex. 321 ; and time within which tit lie rent-charge see Pollard v. Bank of England might be recovered, but limited the (1871), L. R. 6 Q. B. 623 ; 40 L. J. amount recoverable to two years' Q. B. 233. S. — C. K 130 REALITY OF CONSENT— MISTAKE. Mistake as to per- son one is dealing with. Eelief in equity. Ignorantia legis non excused. Tipping the Admiral. There is no mistake. It may be that if the cashier had at the time been aware of the .state of the customer's account, he -would not have paid the cheque. But if we were to go into all the remote considerations by which parties may be influenced, it would be opening a very wide field of conjecture, and w r ould lead to infinite confusion and annoyance." A contract based on a misapprehension of facts by both parties is void, and money paid under it may be recovered (/). A mistake as to the person with whom he is dealing will sometimes relieve a party from the necessity of performing his contract. Jones, who had been in the babit of dealing with Brocklehurst, a pipe-hose manufacturer, sent him an order for 50 feet of leather hose. It happened that that very day Brocklehurst had been bought out by his foreman, Boulton, who executed the order and sent the goods to Jones, without giving him notice that the goods were supplied by him and not by Brocklehurst. It was held that Boulton could not maintain an action against Jones for the price (g). The grounds for equitable relief in the case of mistakes of fact are ' ' that mistake or ignorance of facts in parties is a proper subj ect of relief only where it either constitutes a material ingredient in the con- tract of the parties, or disappoints their intention by a mutual error; or where it is inconsistent with good faith, and proceeds from a viola- tion of the obligations which are imposed by law upon the con- science of either party. But where each party is equally innocent, and there is no concealment of facts which the other party has a right to know, and no surprise or imposition exists, the mistake or ignorance, whether mutual or unilateral, is treated as laying no foundation for equitable interference "(h). Money paid with a knowledge of all the facts but under a mistake of the LAW, i. e., of a general rule of law, or, like Mr. Marriott, by compulsion of legal proceedings, cannot, in general, be recovered back, there being nothing against conscience in the other retaining 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 under whose convoy he had sailed ; not, if you please, in a spirit of (f) Cochrane v. Willis (1865), L. It. 1 Ch. 58 ; 35 L. J. Ch. 36. (?) Boulton v. Jones (1S57), 2 H. & 1ST. 564 ; 27 L. J. Ex. 1117; followed in the American case of Boston Ice Company v. Potter (1877), 123 Mass. 28; see also Mitchell v. Lapage (1816), Holt, N. P. 253 ; Humble r. Hunter (1848), 12 Q. B. 310; 17 L. J. Q. B. 350 ; and Smith v. Wheat- croft (1878), 9 Ch. D. 223 ; 47 L. J. Ch. 745. (h) Snell's Equity, 11th ed. p. 460. REALITY OF CONSENT— MISTAKE. 131 gratitude, but believing that he tvas bound by laiv to pay it. But he wasn't ; and, when he found that out, he brought an action to try and get it back again . But it was held that he could not get it back again, for he had gone wrong in his law, not in his facts (*). "Every man" said Lord Ellenborough, in Bilbie v. Lumley(&) (where an underwriter tried to get back some money he had paid as for a loss, saying he had not understood the legal effect of a particular document), "must be taken to be cognizant of the law; Everybody otherwise there is no saying to what extent the excuse of ignorance \&™ S Q might not be carried. It would be urged in almost every case." In Miles v. Scotting(/), it was held by Stephen, J., that the doctrine that money paid under a mistake cannot be recovered back unless the mistake be one of fact, applies even though the person receiving the payment be one of the persons authorizing it to be made. The recent case of Moore v. Fulham Vestry (to) contains an important decision on this subject. The facts were, that the defen- dants had issued a summons against the plaintiff to recover his proportion of certain street improvement expenses alleged to be due from him as the owner of premises abutting on a street in the defendants' district ; the plaintiff paid the money before the summons tvas heard, and the summons was withdrawn. The plaintiff having subsequently discovered that his premises did not abut on the street in question, sued the defendants for a return of the money; but it was held that the money had been paid under pressure of legal process, and that, notwithstanding the withdrawal of the summons, it was not recoverable. It is to be observed, however, that to make money paid under Abuse of compulsion of legal proceedings irrecoverable, the proceedings must p^. eas be regular, and not a mere cloak for extortion. A person named Collins, who was quite insolvent, had the impudence to arrest a continental duke for an imaginary debt of £10,000. The conti- nental duke was incontinently frightened — probably he had heard that debtors in England were always ordered off to instant execu- tion — and paid £500 for his release. He afterwards brought an action to recover the money, and was held entitled to do so(n). " It is clear," said Coleridge, J., " that, if money be paid with full knowledge of facts, it cannot be recovered back. It is clear, too, that if there be a bona fide legal process, under which money is (i) Brisbane v. Dacres (1813), (k) (1802), 2 East, 4C9. 5 Taunt. 143 ; and see Barber v. (1) (1885), 1 C. & E. 491. Pott (1859), 4 H. & N. 759; 28 (m) [1895] 1 Q. B. 399 ; 64 L. J. L. J. Ex. 381 ; and Rogers v. Q. B. 226. Ingham (1876), 3 Ch. Div. 351 ; («) Cadaval v. Collins (1836), 4 46 L. J. Ch. 322. A. & E. 858 ; 2H.&W. 54. k2 132 tlEALITY OF CONSENT— MISTAKE. Lands- downe r, Lauds- dowiie. Officers of the Court. Other cases. recovered, although not actually due, it cannot bo recovered back, inasmuch as there must be some end to litigation. That is the siibstance of the decisions. But no case has decided that, luhen a fraudulent use has been made of legal process, both parties knowing throughout that the money claimed was not due, the party paying under such process is not to have the assistance of the law." So, resting on the ground of a presumption that there must have been fraud or undue influence of some kind, there is a well known doctrine of equity that if a person, acting in ignorance of a clear and elementary principle of law, parts with a portion of his property, he will be relieved from the consequences of his mistake. Thus, in Landsdowne v. Landsdowne (o), an uncle having a difference of opinion with the son of his elder brother as to the right to inherit an estate, they both agreed to go by the decision of the school- master. That worthy person, acting on the maxim that " land cannot ascend, but always descends," pronounced in favour of the uncle; but it was held that, the mistake being so great as to suggest fraud, the nephew was entitled to relief. Where, however, the mistake arises on a doubtful point of law, a fair compromise will be upheld ; and it is on this ground that the whole doctrine of the validity of family compromises of doubtful rights rests. But in such cases there must be a full communication of all the material circumstances known (p). Where, however, assets have come into the hands of an officer of the Court, as, for instance, a trustee in bankruptcy or official liquidator, under a mistake of law, the Court will compel its officer to repay the money (7). The following cases may also be referred to on the subject- matter of this note -.—Foster v. Mackinnon (1869), L. B. 4 C. P. 704; 38 L. J. C. P. 310; Hunter v. Walters (1871), L. B. 7 Ch. 75 ; 41 L. J. Ch. 175 ; Freeman v. Jeffries (1869), L. B. 4 Ex. 189; 38 L. J. Ex. 116; Turner v. Turner (1880), 14 Ch. D. 829; and Green v. Duckett (1883), 11 Q. B. D. 275; 52 L. J. Q. B. 435. (0) 2 Jac. & Walker, 205. (;j) Gordon v. Gordon (1819), 3 Swanst. at p. 463. ((/) See Ex parte James (1874), L. R. 9 Ch. 609 ; 43 L. J. Bk. 107 ; Ex parte Sinrmonds (1885), 16 Q. B. D. 308 ; 55 L. J. Q. B. 74 ; In re Brown (1886), 32 Ch. D. 597; 55 L. J. Ch. 556 ; and In re Opera, Limited, T1891] 2 Ch. 154 ; 60 L. J. Ch. 464. CONTRACTS CONTRARY TO PUBLIC POLICY. 133 LEGALITY OF OBJECT. Contracts Contrary to Public Policy EGERTON v. BROWNLOW. (1853) [43.] [4 H. L. Cas. 1 ; 23 L. J. Ch. 348.] The seventh Earl of Bridgewater was anxious that after his death some memher of his family should become a duke, and with that great object in view he sat down and made his will. He left large 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 never- theless that the estates did not go over, as the condition subsequent which the earl had imposed was contrary to public policy and void. " May I not do what I -prill with mine own ? " Why, certainly ; No true _ but perhaps you will have the kindness to tell us what is your own. ^land. P No man, according to our law, is the owner of land. At the most he is tenant in fee simple; the ownership residing all the time in the Crown, that is, in the State. As to personal property, the law re- cognises a quasi-ownership. In other words, it protects a man in the enjoyment of it. But, of course, an Act of Parliament can take away all those safeguards which are thrown round the enjoy- ment of property, whether real or personal ; and when the inte- rests of the State and the interests of individuals happen to clash, public policy (that is, " the public good recognised and protected by the most general maxims of the law and the constitution ") requires that the former shall prevail. Egerton v. Brownlow is an important case on this " public policy." Principle It was considered that the condition violated it because it would bo p., SP eat ° 134. CONTRACTS CONTRARY TO PUBLIC POLICY. " mischievous 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. Maxims. It is to bo 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 and maxims, such as Salus populi supreme/, lex, Nihil quod est inconveniens est licitum, Sic utere tuo ut alienum non Icedas, &c. The tendency of modern decisions is, however, to limit the sphere within which the Courts will set aside contracts on the ground that they contravene public policy, for, as was said by Sir George Jessel in the case of Printing Co. v. Sampson («), " You have this paramount public policy to consider, that you are not lightly to Tullis v. interfere with the freedom of contract." And in the recent case of son. Tullis v. Jacson (b), it was held that a clause in a building contract, providing that the valuations, certificates, orders, and awards of the arbitrator appointed thereunder should be final and binding, and should not be set aside for any pretence, charge, suggestion, or insinuation of fraud, collusion, or confederacy, was not obnoxious to public policy, for, in the absence of fraud on the part of the parties to the contract, it was competent to them to agree not to raise any question of fraud in the arbitrator. "Public policy," once said Burroughs, J., "is a restive horse, and when once you get astride of it there is no knowing where it will carry you." "You vote Eeference may with advantage be made to the two following man 3 and cases on public policy. In one of them (c), the plaintiff and defen- I'll vote dant were both subscribers to a certain charity, the objects of which tor yours. were elected by the subscribers with votes proportioned to the amount subscribed. The defendant on one occasion was anxious that a particular person 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. Accordingly, the plaintiff voted for the defendant's candidate ; but, when the next election came round, the defendant refused to ftu-nish the twenty-eight votes he had promised, and the plaintiff (a) (1875), L. R. 19 Eq. 462 ; 44 (e) Bolton v. Madden (1873), L. J. Ch. 705. L. R. 9 Q. B. 55; 43 L. J. Q. B. {b) [1892] 3 Ch. 441 ; 61 L. J. 35. Ch. 655. CONTRACTS CONTRARY TO PUBLIC POLICY. 135 in consequence subscribed £7 7s. to the charity so as to obtain twenty- eight more votes in his own right. In an action for the money thus paid, it was urged by the defendant that the agreement was void as against public policy. " The argument for the defendant," said Blackburn, J., " was that the subscriber to a charity is under an obligation to give his votes for the best object, and that the plaintiff, if he gave his votes at the first election to what he thought the best candidate, incurred neither trouble nor prejudice, so that there was in that point of view no consideration ; and if he gave his votes to the candidate whom he did not think the best, the whole agreement was void as against public policy. But though some of us, at least, much disapprove of this kind of traffic, we can find no legal principle to j ustify us in holding that the subscriber to a charity may not give his votes as he pleases, answering only to his own conscience and reputation for the way he exercises his power." In the other case (d), the plaintiff had seduced a man's wife, and Keeping it had then entered into an agreement with the husband that, if the secret ' latter would keep the affair secret, the former woidd not enforce payment of a certain bond. The husband died; and, thinking perhaps that the secret had died with him, the plaintiff sued on the bond. In answer to the claim, the executor pleaded the agree- ment ; but the plea was held bad, on the ground that there was no valid consideration for the plaintiff's promise. Other subjects illustrating public policy are bribery; champerty and maintenance ; sale of offices ; insurance of seamen's ivages ; trading zuith enemies; and assignment of salaries ; and reference may use- fully be made to the following, amongst other, cases : — Coppock v. Bower (1838), 4 M. & "W. 361 (a petition having been presented to the House of Commons against the return of a member on the ground of bribery, the petitioner entered into an agreement, in consideration of a sum of money, and upon other terms, to proceed no further with the petition. Held, that this agreement was illegal); Ball v. Warwick (1881), 44 L. T. 218 ; 50 L. J. Q. B. 382 (champerty — loan to be repaid by the result of litigation) ; Keir v. Leeman (1846), 9 Q. B. 371 ; 15 L. J. Q. B. 360 (agreement to stifle prosecution illegal); Potts v. Bell (1800), 8 T. B. 548 ; 2 Esp. 012 (trading with an enemy illegal) ; Stanley v. Jones (1831), 7 Bing. 369 (an agreement to communicate such information as shall enable a party to recover a sum of money by action, and to exert influence by procuring evidence to substantiate the claim, ujwn condition of receiving a portion of the sum recovered, is illegal) ; {d) Brown v. Brine (1875), 1 Ex. Div. 5 ; 45 L. J. Ex. 129. 136 ILLEGAL CONTRACTS. Bradlaugh v. Newdegate (1S83), 11 Q. B. D. 1 ; 52 L. J. Q. B. 454 (maiutenance) ; Plating Co. v. Farquharson (1881), 17 Oh. D. 49; 50 L. J. Ch. 406 (contempt of court — advertisement for subscrip- tions to defend a pending suit and offering a reward for evidence- common interest); Harris v. Brisco (1886), 17 Q. B. D. 504; 55 L. J. Q. B. 423 (maintenance— defendant acting "from charitable motives " in assisting third person is a good defence, although he acted -without inquiry into the circumstances) ; Lound v. Grimwade (1888), 39 Ch. D. 605 ; 57 L. J. Ch. 725 (contract tending to affect the course of criminal proceedings) ; and In re Mirarns, [1891] 1 Q. B. 594 ; 60 L. J. Q. B. 397 (assignment of salary of public office) ; Alabaster v. Harness, [1895] 1 Q. B. 339; 64 L. J. Q. B. 76 (maintenance — what amounts to a " common interest" sufficient to justify). Illegal Contracts. [44.] COLLINS r. BLANTERN. (1767) [2 Wils. 341.] This was an action on a bond which was intended to secure to the plaintiff the repayment of a sum of £350. But the fact was that the plaintiff had advanced the money for the purpose of settling a criminal prosecution, and it was therefore successfully pleaded that the con- sideration for the bond was illegal, and, although it did not appear on the face of the deed, vitiated it. Said Lord Chief Justice Wilmot, in memorable words, " You shall not stipulate for iniquity. All writers upon our law agree in this — no polluted hand shall touch the pure fountains of justice. Whoever is a party to an un- lawful contract, if he hath once paid the money stipulated to be paid in pursuance thereof, he shall not have the help of a Court to fetch it back again ; you shall not have a right of action when you come into a Court of justice in ILLEGAL CONTRACTS. 137 this unclean manner to recover it back. Procul ! procul esteprofani /" A deed is of so solemn a nature that •whatever a man therein asserts he is estopped from afterwards denying. On the other hand, " the pure fountains of justice " must not be polluted; and so we get engrafted on our rule the exception that illegality is fatal, Deed not onhi to an ordinary agreement, but even to a deed. vitiated, by J illegality. It may happen, however, that the legal part of an agreement can <, , be separated from the illegal. This can never be the case where promises, one of several considerations is illegal, because it cannot be known some . ' gal, some which of them induced the promise. But when the consideration not. is not illegal, and there are several promises, some of which are illegal, and others not, the agreement is void only if the illegal promises are incapable of being separated from the legal. Illegal contracts are generally divided into two classes : — (1.) Those illegal by the common law. (2.) Those illegal by statute. Under the former head come contracts in restraint of marriage Common or trade, contracts impeding the administration of justice, immoral law iue - contracts, and the like. Under the latter head may be mentioned , , a i i statutory Sabbath-breakmg and gaming contracts, and also contracts under illegality. the Truck Acts (e). To make a contract void, the statute need not use express words of prohibition ; if it inflicts a penalty, it may be sufficient (/). If, however, the object of the statute is not to pro- Penalty Mbit the act done, but only to impose a penalty for the purpose of the "^V revenue, the contract -will not be illegal (g). Thus, it was held in'tion. the recent case of Learoyd v. Bracken (A), that a broker who had made purchases and sales on the Stock Exchange for his principal was not prevented from recovering commission on such purchases and sales by an omission on his part to transmit to his principal any stamped contract notes in conformity with the Customs and Inland Eevenue Act, 1888 (51 & 52 Vict. c. 8), sect. 17, sub-sect. 1 (■/). (e) See 1 & 2 Will. IV. c. 37 ; (1S85), 1G Q. B. D. 446; 54 L. J. and 50 & 51 Vict. c. 46. And see Q. B. 408. the recent cases of Lamb v. G. N. (17) Smith v. Mawhood (1845), 14 By. Co., [1891] 2 Q. B. 281; 60 M. & W. 452; 15 L. J. Ex. 149; L. J. Q. B. 489 ; Hewlett v. Allen, Smith v. Wood (1889), 24 Q. B. D. [1892] 2 Q. B. 662 ; 62 L. J. Q. 23 ; 37 W. R. 800. B. 9. (A) [1894] 1 Q. B. 114; 63 L.J. (/) Cope v. Rowlands (1836), 2 Q. B. 96. Gale, 231 ; 2 M. & W. 149 ; Bens- (i) But see now the Stamp Act, ley v. Bignold (1822), 5 B. & Aid. 1891 (54 & 55 Vict. c. 39), sects. 52, :;:;"> ; and Cxmdell v. Dawson (1847), 53, which consolidates the previous 4 C. B. 376; 17 L. J. C. P. 311 ; statutes. Melliss v. Shirley Local Board 138 TL I EG A I CONTRA CTH. Agree- 1111 111 to stifle pro- secution. Infection. Though an agreement to stifle a public prosecution is illegal, in such cases the intention to impede the administration of justice must be clearly proved. In the case of Flower v. Sadler (k) it was held, that in order to render illegal the receipt of securities by a creditor from his debtor, where the debt has been contracted under circumstances which might render the debtor liable to criminal proceedings, it is not enough to know that the creditor was thereby induced to abstain from prosecuting. The recent case of Windhill Local Board v. Vint(/), decided that an agreement by the defendants at a trial to abate an indictable nuisance (the obstruction of a highway) within a certain time, in consideration of the prosecutors consenting to a verdict of Not Guilty, cannot be enforced, because it was founded on an illegal consideration. Another illustration of an illegal contract is afforded by the case of Scott v. Brown (m). It was there held that an agreement be- tween two or more persons to induce would-be buyers of shares in a company, contrary to the fact, to believe that there was a market for the shares, and that the shares were of greater value than they really were, was illegal, and that no action could be maintained in respect of such agreement or purchase of shares. A contract perfectly good and legal in itself may become bad and illegal by being connected with a previous illegal contract. A man once brought an action on a covenant for payment of money. But the defendant set up the defence that a contract had been formerly entered into between himself and the plaintiff, by the terms of which the plaintiff was to sell him some land for the illegal purpose of being sold by lottery ; and he said that the deed on which the plaintiff was now suing him was a security for the purchase-money of that land. The judges considered that this plea was an answer to the plaintiff's claim. "It is clear," they said, "that the cove- nant was given for payment of the purchase-money. It springs from and is a creature of the illegal agreement, and, as the law would not enforce the original illegal contract, so neither will it allow the parties to enforce a security for the purchase-money, which by the original bargain was tainted with illegality (»). (k) (1882), 10 Q. B. D. 572, following Ward v. Lloyd (1843), 7 Scott, N. R. 499; 6 Man. & G-. 785 ; and see Rourke v. Mealy (1879), 41 L. T. 168 ; 4 L. R. Ir. 166. {1) (1890), 45 Ch. D. 351 ; 59 L. J. Ch. 608. See also Jones v. Merionethshire Building Society, [1892] 1 Ch. 173; 61 L. J. Ch. 138. (m) [1892] 2 Q. B. 724; 61 L. J. Q. B. 738. («) Fisher v. Bridges (1854), 24 L. J. Q. B. 165 ; 3 E. & B. 642 ; and see Jennings v. Hammond (1882), 9 Q. B. D. 225 ; 51 L. J. Q. B. 493 ; Shaw v. Benson (1883), 11 Q. B. D. 563; 52 L. J. Q. B. 575; Ex parte Poppleton (1884), 14 Q. B. D. 379 ; 54 L. J. Q. B. 336. ILLEGAL CONTRACTS. 139 Money paid for an illegal purpose may be recovered Lack any Recover - time before the illegal purpose has been carried out (o) ; but not ^(ifor 6 ^ afterwards, because then the parties are in pari delicto, and the illegal maxim melior est conditio possidentis appbes. "The true test," it P ur P ose - ■was said in a case where a man tried unsuccessfully to get back a bank-note he had given a brothel- house keeper as a security for a debt for wines and suppers at the brothel (p), "for determining whether or not the plaintiff and the defendant were in pari delicto, is by considering whether the plaintiff could make out his case otherwise than through the medium and by the aid of the illegal transaction to which he was himself a party." So in Simpson v. Glauciua Bloss (. Schott, [1892] 3 Ch. 447; («) (1872), L. It. 13 Eq. 322; 41 61 L. J. Ch. 698. These, and L. J. Ch. 427. many earlier cases, are, of course, (o) (1856), 6 E. & B. 47, 66; 24 now annulled so far as they conflict L. J. Q. B. 353. with the modern rule established (p) Collins v. Locke (1879), 4 by the decision of the House of App. Ca. 674 ; 48 L. J. P. C. 08. Lords in Nordenfelt's case. (?) Jones v. North (1875), L. R. (m) (1884), 27 Ch. D. 145 j 54 19 Eq. 426 ; 44 L. J. Ch. 388. 150 RESTRAINT OF TRADE. Commer- cial con- spiracy. Trade themselves at a certain price, leaving one of them to make any other profit that he can." It has, however, recently been held that an agreement by the members of an association not to sell certain goods at less than a particular price for ten years, and to forfeit 10?. for each contravention of this agreement, was void(r). A rule of a trade society that no member shall employ any traveller, carman, or outdoor employee who had left the service of another member without the consent in writing of his late em- ployer, until after the expiration of two years from his leaving such service, is bad (s). The law relating to what may be termed ' ' commercial con- spiracy," or combinations to exclude the competition of rival traders, was elaborately discussed in the recent very important case of the Mogul Steamship Co. v. McGregor, Gow & Co. (t). The defendants, who were firms of shipowners trading between China and Europe, with a view to obtaining for themselves a monopoly of the homeward tea trade, and thereby keeping up the rate of freight, formed themselves into an association, and offered to such merchants and shippers in China as shipped their tea exclusively in vessels belonging to members of the association a rebate of 5 per cent, on all freights paid by them. The plaintiffs, who were rival shipowners trading between China and Europe, were excluded by the defendants from all the benefits of the association, and, in con- sequence of such exclusion, sustained damage. The Court of Appeal (by Bowen and Fry, L. JJ., Lord Esher, M. B., dissenting), affirming the judgment of Lord Coleridge, C. J. (u), held that the association, being formed by the defendants with the view of keep- ing the trade in their own hands, and not with the intention of ruining the trade of the plaintiffs, or through any personal malice or ill-will towards them, was not unlawful, and that no action for conspiracy was maintainable ; and this decision was affirmed by the House of Lords. With this case should be compared the still more recent one of Temperton v. Russell (as), which held that a combina- tion by two or more persons to induce others not to deal with, or to enter into contracts with, a particular individual, is actionable, if done for the purpose of injuring that individual, provided he is thereby injured. Moreover, the Trade Union Act, 1871 (y), provides (sect. 3) that (r) Urmston v. Whitelegg (1891), 55 J. P. 453. (s) Mineral "Water Bottle Society v. Booth (1887), 36 Ch. D. 465 ; 57 L. T. 573. (<0 [1892] A. C. 25 : 61 L. J. Q. B. 295. («) 21 Q,. B. D. 544 ; 59 L. T. 514 ; 23 Q. B. D. 598 ; 58 L. J. Q. B. 465. (x) [1893] 1 Q. B. 715 ; 62 L. J. Q. B. 412. And see Flood v. Jack- son, [1895] 2 Q. B. 21 ; 11 T. L. E. 335. (>/) 34 & 35 Vict. c. 31. RESTRAINT OF TRADE. 151 " The purposes of any trade union shall not, by reason merely that Union Act, they are in restraint of trade, be unlawful so as to render void or voidable any agreement or trust." Sect. 4, however, specifies certain exceptions. Every man has the right to get the best possible price for his work ; but if others choose to work for less than the usual prices, the law will not permit violence or undue influence to be exercised upon them, or upon those by whom they are employed, or those with whom they are connected. The follow- ing cases may be consulted on this subject : — Eex v. Batt (1834), 6 C. & P. 329 ; Walsby v. Anley (1861), 3 El. & El. 516 ; 30 L. J. M. C. 121 ; O'Neill v. Longman (1863), 4 B. & S. 376; 9 Cox, C. C. 360 ; Wood v. Bowron (1866), L. B. 2 Q. B. 21 ; 36 L. J. M. C. 5 ; Skinner v. Kitch (1867), L. B. 2 Q. B. 393 ; 36 L. J. M. C. 116 ; Beg. v. Druitt (1867), 10 Cox, C. C. 592; 16 L. T. 855; Spring- head Spinning Co. v. Eiley (1868), L. B. 6 Eq. 551 ; 37 L. J. Ch. 889; Eigby v. Connol (18S0), 14 Ch. D. 482; 49 L. J. Ch. 328; Duke v. Littleboy (1880), 49 L. J". Ch. 802 ; 43 L. T. 216 ; Wolfe v. Matthews (1882), 21 Ch. D. 194; 51 L. J. Ch. 833 ; and Strick v. Swansea Tin Plate Co. (1887), 36 Ch. D. 558 ; 57 L. J. Ch. 438. The exclusive right of holding markets, and of preventing sales Markets. by others of marketable articles within the limits of the market, may be gained by (a) immemorial enjoyment, (b) charter from the Crown, (c) Act of Parliament. The important cases dealing with this subject are: — Macclesfield v. Pedley (1S33), 4 B. & Ad. 397; 1 N. & M. 708 ; Macclesfield v. Chapman (1843), 12 M. & W. 18 ; 13 L. J. Ex. 32 ; Ellis v. Bridgnorth (1863), 15 C. B. N. S. 52 ; 32 L. J. C. P. 273 ; Penryn v. Best (1878), 3 Ex. D. 292 ; 48 L. J. Ex. 103; Elwes v. Payne (1879), 12 Ch. D. 408; 48 L. J. Ch. 831; Goldsmid v. Great Eastern By. Co. (1884), 9 App. Cas. 927 ; 54 L. J. Ch. 162 ; Att.-Gen. v. Horner (1885), 11 App. Cas. 66 ; 55 L. J. Q. B. 193; Devonshire v. O'Biien (18S7), 19 L. B. Ir. 3S0; Birmingham v. Foster (1894), 70 L. T. 371. 152 RESTRAINT OF MARRIAGE. Restraint of Marriage. [48.] Eeason of the thing. Keily v. Monck. LOWE v. PEERS. (1768) [4 Burr. 2225 ; Wilmot, 364.] Mr. Newsliam Peers executed a document to this pur- port: — " I do hereby promise Mrs. Catherine Lowe that I will not marry with any person besides herself; if I do, I agree to pay to the said Catherine Loire 1,000/. within three months next after I shall marry anyone else." Ten years afterwards Peers married a girl that was not Catherine Lowe. The injured lady brought an action on the document, but after learned argument it was resolved that it was void as being in restraint of marriage. According to the view of the judges, Mr. Peers's promise had not been to marry Mrs. Lowe, as might seem at first sight to be the case ; but he had promised not to marry anybody except Mrs. Lowe : so that if that good widow from caprice, disinclination, or the claim of conflicting engage- ments, refused to marry him, he would be compelled to be a bachelor all his days. A general restraint of marriage is against the policy of the law, because, as Lord Chief Justice Wilmot pointed out in the leading case, it encourages licentiousness, and tends to depopulation; and a condition imposing such a restraint is void. So also is a condition amounting to a probable prohibition, as where a testator's legacy to his daughter was conditional on her marrying a man with an estate worth 500?. a year (z). " How many particular professions," said the Lord Chancellor, in giving judgment in that case, "are virtually excluded by that condition ? What man of the profession of the law has set out with a clear xinincumbered real estate of (z) Keily v. Monck (1795), 3 Ridg. P. C. 205. RESTRAINT OF MARRIAGE. 153 500/. a year, or lias acquired such an estate for years after his entering into the profession ? How many men of the other learned professions can come within the condition ? It will in effect exclude 99 men in 100 of every profession, whether civil, military, or ecclesiastical. It in effect excludes nearly every mercantile man in the kingdom, for let his personal estate be never so great, unless he is seised of a real estate of the ascertained description, he is excluded. ... In a word, the condition which this weak old man would have imposed upon his daughters as the price of their portions does, to my judgment, clearly and unequivocally lead to a total prohibition of their marriage, and as such ought to be condemned in every court of justice. And I cannot but say that the scene of enmity and discord and disunion which has now pre- vailed for years in this family ought to teach every man who hears me the mischievous folly of attempting to indulge his narrowness and caprice even after he has sunk into the grave." And even if the restraint is not general, but only for two or three years, there must be some good reason why the contractor should be restrained from marrying during that period (a). But, as the general rule, all conditions which do not, directly or How far indirectly, import an absolute injunction to celibacy are valid. restraint Thus, conditions prohibiting marriage be/ore twenty-one (b), or with a specified person{c), or with a Scotchman (d), or with a,papist(e), or with a domestic servant (f), are not illegal. Testators leaving young daughters frequently prohibit their Consent of marriage without the consent of a trustee. This consent, however, tn^tee. cannot be withheld corruptly or unreasonably (g) ; and the marriage will be allowed to take place if it is a proper one (h). It appears to be a moot point whether conditions requiring marriage with consent are broken by a first marriage without consent, so as to disable a legatee from taking upon a second marriage with consent (*), Second marriages may be restrained. A husband, for instance, Second may leave his widow an annuity which is to cease on her marrying mama S e8, again. In Allen v. Jackson (k), a testatrix gave the income of certain property to her niece (who was her adopted daughter) and (a) Hartley v. Rice (1808), 10 (/) Jenner v. Turner (1880), 16 East, 22 ; Baker v. White (1690), Ch. D. 188 ; 50 L. J. Ch! 161. 2 Vern. 215. (g) Dashwoodr. Bulkeley (1804), (b) Stackpoler. Beaumont (1796), 10 Ves. 230. 3 Ves. 89. (h) Goldsmid v. Goldsmid (1815), (c) Jervois v. Duke (1681), 1 Coop. 225 ; 19 Ves. 368. Vera. 19. (i) See Randal v. Pavne, 1 Bro. (d) Pen-in*;. Lyon (1807), 9 East, C. C. 55; Page v. Hay ward (1705), 170. 2 Salk. 570. (e) Duggan v. Kelly (1847), 10 (k) (1875), 1 Ch. D. 399; 45 L. J. Ir. Eq. Rep. 295. Ch. 310. 154 RESTRAINT OF MARRIAGE. Marriage brokerage contracts. Future separation. Immediate separation. her niece's husband during their joint lives, and to the survivor during his or her life, with a proviso that if the husband survived his wife and married again, the property should go over. That was just what happened. The niece died ; the widower married again ; and the gift over took effect. " The present state of the law," said Baggallay, L. J., "as regards conditions in restraint of the second marriage of a woman, is this, that they are exceptions from the general rule that conditions in restraint of marriage are void, and the enunciation of that law has been gradual. In the first instance, it was confined to the case of the testator being a husband of the widow. In the next place, it was extended to the case of a son making the will in favour of his mother. That, I think, is laid down in Godolphin's Orphan's Legacy. Then came the case before Vice- Chancellor Wood of Newton v. Marsden (I), in which it was held to be a general exception by whomsoever the bequest may have been made. Now, the only distinction between those cases and the present case is this — that they all had reference to the second marriage of a woman, and this case has reference to the second marriage of a man. But no case has been cited in which a condition has been held to be utterly void as regards the second marriage of a man; and following the analogy of the other cases there seems no reason at all why a distinction should be drawn between the tivo sexes." Besides making contracts in general restraint of marriage void, the law exhibits its tender regard for the hallowed institution by declaring equally void a marriage brokerage contract, that is, a contract {e.g., with a lady's maid) to bring about a particular marriage (in). A mother once told a candidate for son-in-lawship, ' ' You shall not have my daughter, unless you will agree to release all accounts." He agreed, but the agreement was held to be a marriage brokerage contract, and void(/i). Similarly, a contract relating to the future separation of a married couple is illegal and void, for such a state of things ought not to be considered likely to come about ; it ought to be absent from the thoughts of the blissful pair ; and indeed the contract itself might lead to a separation. But a contract relating to an immediate separa- tion is valid, for it is necessary to make the best of a bad thing (o). If, however, after the separation deed has been executed, the con- templated separation does not take place, the deed becomes worth- less, and cannot be construed as a voluntary settlement (p). (1) (1862), 2J.&H. 356; 31 L. J. Ch. 690. (m) Hall v. Potter (1695), 3 Lev. 411 ; Cole v. Gibson (1750), 1 Ves. 503. (n) Hamilton v. Mohun (1710), 1 P. Wms. 118. (o) Hindleyt'.Westmeath(1828). 6 B. & C. 200. (p) Bindley v. Mulloney (1869), L. R. 7 Eq. 343 ; 20 L. T. 263. A THEISM. 155 A covenant not to revoke a will is not necessarily against public policy as being in restraint of a marriage (q). Atheism. COWAN v. MILBOURNE. (1867) [49.] [L. R. 2 Ex. 230 ; 36 L. J. Ex. 124.] Mr. Cowan was in 1867 the secretary of the Liverpool Secular Society, and the defendant the proprietor of some Assembly Rooms there. Cowan engaged the rooms for a series of lectures to show that Our Lord's character was defective, and his teaching erroneous ; and that the Bible was no more inspired than any other book. At the time the defendant let the rooms he did not know the nature of the lectures to be delivered, and when he found out, he declined to complete his agreement. The secularists now sued him for breach of contract, but the Court decided that the purpose for which the plaintiff intended to use the rooms was illegal, and the contract one which could not be enforced at law. " Christianity" said Kelly, C. B., " is part and parcel of the laic of the land." " Christianity is part of the law of England." This is shown not Chris- merely by the existence of a church establishment, but by the tianity various punishments inflicted, or capable of being inflicted, on j aw f persons who profanely curse, who break the Sabbath, who uso England, witchcraft, or who give expression to unorthodox views. In a judgment in a slavery case (r), Best, J., says, "The proceedings in our Courts are founded upon tho law of England, and that law (q) Robinson V. Ommanncy Ch. 410. (1883), 21 Ch. D. 780; 23 Ch. ]>. (»•) Forbes v. Cochrane (1821), 2 285 ; 51 L. J. Ch. 894 ; 52 L. J. B. & C. 448 ; 3 D. & R. 679. Blas- phemy, 156 ATHEISM. again is founded upon the law of Nature, and the revealed law of God. If the right sought to be enforced is inconsistent with either of these, the English municipal Courts cannot recognise it." Not- withstanding this strong language, however, it would appear that Slavery. a contract for the sale of slaves entered into and to be performed in a country where that unnatural traffic is lawful might bo enforced in England (s). The following summary from the Law Times of July 22nd, 1882, on the subject of blasphemy may be of interest : — " Of the leading cases on this subject the earliest on record is that of one Atwood, in 15 Jac. 1, who was convicted of speaking words reflecting on religious preaching, viz., that it was ' but prating, and the hearing of service more edifying than two hours' preaching.' Notice may also be made of the trial of one Taylor (Vent. 293), for uttering gross blasphemies, in the course of which Chief Justice Hale observed that to say religion is a cheat is to dissolve all those obligations whereby civil society is preserved ; that Christianity is part of the laws of England, and therefore to reproach the Christian religion is to speak in subversion of the law. On the same ground a conviction was sustained in the case of E. v. Woolston (Str. 834), where the libel stated that Christ was an impostor and fanatic, and his life and miracles were turned into ridicule. In 1763, again, one Annett was convicted of publishing a libel called ' The Free Inquirer,' tending to ridicule the Scriptures, and particularly the Pentateuch, by representing Moses as an impostor ; and a similar result followed the case of E. v. Williams, in 1797, for publishing Paine's ' Age of Eeason,' in which the authority of the Old and New Testament was denied, and the prophets and Christ were ridi- culed. The same doctrine has been fully recognised in other cases, one of the latest, perhaps, being that of Carlile (3 B. & Aid. 161), who, in 1820, was sentenced to pay a fine of 1,500?., to be im- prisoned for three years, and to find sureties for his good behaviour during life. ' ' But, besides the common law, the Legislature itself has made certain provisions against this kind of offence. The statute 1 Edw. 6, c. 1, for example, enacts that persons reviling the sacrament of the Lord's Supper by contemptuous words or otherwise shall suffer imprisonment. By 1 Eliz. c. 2, again, if any minister shall speak anything in derogation of the Book of Common Prayer, he shall be punishable, as there mentioned, by imprisonment and loss of benefice. So, also, by 3 Jac. 1, c. 21, whoever shall use the name of the Holy Trinity profanely or jestingly in any stage-play or show, is made liable to a fine of 10?. Lastly, by 9 & 10 Will. 3, c. 30, it (*) Santos v. Ulidge (1859), 8 C. B. N. S. 861 ; 29 L. J. C. P. 348. ATHEISM. 157 is enacted that, if any person educated in, or having made profes- sion of, the Christian religion, shall by writing, teaching, or advised speaking, assert that there are more gods than one, or deny the Christian religion to be true, or the Scriptures to be of Divine authority, he shall, upon the first offence, be incapable of holding any office or trust ; and on the second conviction shall be for ever incapable to bring any action, or to bear any office or benefice, and further shall suffer imprisonment for three years. It has been held, moreover, that the effect of this enactment is cumulative, and that an offender against it is still punishable at the common law." In the recent case of Reg. v. Ramsay and Foote (t), where the defendants were indicted for the publication of blasphemous libels in a newspaper called the Freethinker, the jury were directed that a blasphemous libel did not consist in an honest denial of the truths of the Christian religion, but in " a wilful intention to pervert, insult, and mislead others by means of licentious and contumelious abuse applied to sacred subjects." The summing up by Lord Coleridge, C. J., though the law may not be altogether sound, is an admirable specimen of judicial eloquence, and deserves careful attention. " It is no longer true," he said in the course of that address, "in the sense in which it was true when these dicta were uttered, that Christianity is part of the law of the land To base the prosecution of a bare denial of the truth of Christianity sim- pliciter and per se on the ground that Christianity is part of the law of the land, in the sense in which it was said to be so by Lord Hale, and Lord Raymond, and Lord Tenterden, is in my judgment a mistake. It is to forget that law grows, and that, though the prin- ciples of law remain unchanged, yet (and it is one of the advantages of the common law) their application is to be changed with the changing circumstances of the times. Some persons may call this retrogression ; I call it progression of human opinion. Therefore, to take up a book or a paper, to discover merely that in it the truth of Christianity is denied without more, and therefore to say that now a man may be indicted upon such denial as for a blasphemous libel is, as I venture to think, absolutely untrue. I, for one, posi- tively refuse to lay that down as law, unless it is authoritatively so declared by some tribunal I am bound by " (u). It was formerly supposed that persons not professing the Christian Omichund v. Barker. (0 (1883), 48 L. T. 733; 15 Cox, shows that "judicial claims, not C. C. 231. to expound, but to make law to (u) This passage, however, con- suit the times, must be watched tained (as the "Law Times" for so as to avoid the danger of in- May 5th, 1883, very truly says) fringing on the province of the "a most dangerous principle," and Legislature." 158 ATHEISM. witnesses. faith were incompetent as witnesses. In the great case of Omickund v. Barker (;r), however, it was settled that it was not so much a belief in Christianity as a belief in a God that was required from a witness; and the depositions of witnesses professing the Gentoo religion, who were sworn according to the ceremonies of their religion, taken under a Commission out of Chancery, were admitted to be read in evidence. But many persons were found who, though quite competent as witnesses, objected altogether, on religious grounds, to taking oaths ; and Acts of Parliament had to be passed relieving them from the necessity of doing so, and permitting them Atheists as to make affirmations instead (y). These Acts, however, did not meet the case of an atheist, who, though quite willing to take an oath, might be objected to as incompetent. But now, by 32 & 33 Vict. c. 68, s. 4, such a person may, "if the presiding judge is satisfied that the taking of an oath would have no binding effect on his con- science," give evidence on his making a solemn promise to tell the truth. That " Christianity is part of the law of England" has also been painfully proved by the difficulties thrown in the way of Jews who desired to sit in the House of Commons. In Miller v. Salomons (z) it was held that the words "upon the true faith of a Christian" were not a mere form of swearing, but an essential part of the oath of abjuration required by 6 Geo. 3, c. 53; so that Jews were effectu- ally excluded from sitting and voting. In 1858, after a long and acrimonious struggle, a modification of the oath in favour of Jews was effected (a), and since that time they have frequently sat in Parliament with credit to themselves and benefit to the country. "Whether the time has not now come when all oaths, whether in the witness-box, in Parliament, or elsewhere, might advantageously be abolished, is a question that has for some time occupied the atten- tion of thoughtful men. Cremation is illegal according to the common law, the Christian method of disposing of the dead being by burial (b). Independently of the principle that " Christianity is part of the law of England," Jews as M.P. Abolition of oaths. Crema- tion. ( on Sunday by a horse-dealer would be void, such a sale by an ordinary person, though within the specified classes, would not be(i). So, the hiring of a labourer by a farmer (A - ), a guarantee given for the faithful services of a commercial traveller {I), and an attorney's agreement (on which he made himself personally liable) for settling the affairs of a client (m), have been held not to be vitiated by the contracts having been entered into on Sunday. (3.) To make the contract void, it must be complete on Sunday. Must be If, however, a contract of sale (e.g., of goods of the value of 10Z.) com P lete - is concluded on Sunday, it will not be purged of its taint merely because the goods are not delivered, nor any part of the price paid, till a subsequent week-day (;i). In a case in which a Scotch boy, apprenticed to a barber, declined Sunday to shave his master's customers on Sunday, it has been held by the House of Lords that shaving is not a ' ' work of necessity and charity " within the exception of the Act (o). " It was said in the Court below," remarked Lord Brougham, " that unless working persons, who do not themselves shave their beards, were allowed to resort to the barbers' shops on Sundays, many decently disposed men would be prevented from frequenting places of worship, and from associating with their families or friends, from want of personal cleanliness. But why should they not do the work on Saturday ?" (h) R. v. Silvester (1863), 33 L. (m) Peate v. Dicken (1834), 1 C. J. M. C. 79 ; 10 Jur. N. S. 360 ; M. & R. 422. It appears to be a and see Sandiman v. Breach (1827), moot point (Peate v. Dicken, 1 C. 7 B. & C. 96 ; 9 D. & R. 796, where M. & R. 428) whether an attorney it was held that the Act did not is within the statute. Probably he apply to a stage coachman. is not. (i) Drury v. De Fontaine (1808), («) Bloxsomc v. Williams (182 1) 1 Taunt. 131. 3 B. & C. 232 ; 1 0. & P. 294 ; and (/.-) R. v. Wbitnasli (1827), 7 B. Simpson v. Nioholls (1838), 3 M. & & C. 596 ; 1 M. & R. 452. W. 210 ; 1 H. & H. 12. (1) Norton v. Powell (1842), 4 (») Phillipa v. [lines (1 ',"'', 4 01. M. & U. 42. & F. 234. S. C. m shaving 162 SA DBA TH-BREAKING. Previsions. Sunday amuse- ments. Lien — general and par- ticular. Solicitor's lien. Moat, milk, mackerel, and bread are to a great extent excepted from the operation of the Act. 21 Geo. III. c. 49, provides that any house opened for public amusement or debate on Sunday, to which persons are admitted by payment of money, shall be deemed a disorderly house, and the keeper (p) of it shall forfeit 200/. for every Sunday it is so used. A place where sacred music is performed, and an instructive address of a religious or, at all events, neutral character given, has been held not to be within the statute (q) ; but an aquarium, notwith- standing sacred music and real fish, is (r). The leading case is also an authority on the law of lien, it having been held that the owner of a stallion has a lien on a mare sent to be covered. Independently of agreement (by which a lien may, of course, exist, or be dispensed with where it would otherwise exist), liens in law are of two kinds, particular unci general. If I am a watchmaker, and you send me your watch to mend, the right that I have to keep it till you pay for its mending is a parti- cular Hen. Such a lien exists over all goods on which the person claiming the lien has bestowed unpaid-for time and trouble, and, very reasonably, is favoured by the law. But no charge can be made for warehousing (s). General liens are liens in respect of a general balance due. They are not favoured by the law, and exist only by virtue of agreement, or custom, or the previous dealings of the parties. Solicitors, bankers (<), wharfingers, factors, insurance brokers, and, it is said, common carriers (»), have general liens. The lien of a solicitor is important enough to deserve a word of special notice. A solicitor has a lien for his professional charges on all deeds and documents of his clients that come properly into his possession, and also on money recovered, litigiously or by com- promise, in the cause. But, when required to produce a document under a subpoena duces tecum, he cannot refuse to do so merely because it has not been paid for and he claims a lien on it (x). Nor (p) As to who is " the keeper," see the recent case of Reid v. Wilson, [1895] 1 Q. B. 315 ; 64 L. J. M. C. 60. (?) Baxter v. Laugley (1868), L. R. 4 C. P. 21 ; 38 L. J. M. C. 1. (>•) Terry v. Brighton Aquarium Co. (1875), L. R. io Q. B. 306 ; 44 L. J. M. C. 173. (.s) Brnce v. Everson (1883), 1 C. & E. 18 ; British Empire Shipping C >. v. S >mes (1860), 30 L. J. Q. B. 229; S H. L. C. 3^8. {t) Loud. Chart. Bank of Aus- tralia v. White (1879), 4 App. Ca. 413; and see Leese v. Martin (1873), L. R. 1 7 Eq. 224 ; 43 L. J. Ch. 193 ; In re Bowes, Strathmore v. Vane (1886), 33 Ch. D. 586; 56 L. J. Ch. 143. (it) Rushforth v. Iladfield (1806), 7 East, 224 ; Aspinall v. Pickford (1800), 3 Bos. & P. 44; Stevens v. Bdler (1883), 25 Ch. D. 31 ; 53 L. J. Ch. 249 ; Webh v. Smith (1885), 30 Ch. D. 192 ; 55 L. J. Ch. 343. {*) Fowler v. Eowler (1SS1), 50 L. J. Ch. 686. WAGERING CONTRACTS. 163 does his lien extend to alimony pendente lite paid over to him as such, unless he holds the wife's written authority to him to receive it as her agent (y). But by 23 & 24 Vict. c. 127, s. 28, the Court before which any proceedings come may order the solicitor's costs to be made a charge on the property recovered. In Boughton v. Boughton (z), it was held that a solicitor could not assert his lien in such a way as to embarrass the proceedings in the suit. But a solicitor by whose instrumentality a judgment for payment of a sum of money is obtained is not the less entitled to a Hen on the money for his costs because he ceased to be the solicitor before the trial ((/). Where successive solicitors are employed in an action, and the fund in Court is insufficient for payment of all the costs, the solicitor who conducts the cause to its conclusion is entitled to be paid first, and the solicitor who was next previously employed is entitled to bo paid next, and so on throughout, the latest in order of employment being entitled to priority ; and it is imma- terial that the previously employed solicitors may have obtained charging orders for their costs (b). Wagering Contracts. DIGGLE v. HIGGS. (1877) [51.] [2 Ex. Div. 422; 46 L. J. Ex. 721.] A couple of athletes named Simmonite and Diggle agreed to walk one another at the Higginshaw Grounds, Oldham, for 200/. a side, Perkins to be referee, and Higgs final stakeholder and pistol-firer. The match duly came (y) Cross v. Cross (1880), 43 L. T. Boden v. Hensbv, [1892] 1 Ch. 101 ; 533. 61 L. J. Ch. 174. (z) (1883), 23 Ch. Div. 169 ; 48 (a) In re Wadsworth (1885), 29 L. T. 413; and see Re Galland Ch. D. 517 ; 54 L. J. Ch. 638. (1885), 53 L. T. 921 ; 31 Ch. D. [b) In re Knight, Knight v. 296; In re Capital Fire Insurance Gardner, [1S92] 2 Ch. 368; 61 L. Ass ciation (1883), 21 Ch. D. 408 ; J. Ch. 399 ; following In re Wads- 63 L. J. Ch. 71 ;Inre Carter (1885), worth (1886), 3i Ch. D. 155; .30 55 L. J. Ch. 230 ; 53 L. T. 630 ; L. J. Ch. 127. M2 164 WAGE RING CONTRACTS. Wagers generally enforce- able at common law. Act of 1845. off, and Perkins decided that Simmonite had won. This decision would seem not to have met the approval of Mr. Diggle, who gave Iliggs formal notice not to pay over the Stakes to Simmonite, and demanded back his 200/. In spite of this notice, Higgs paid Simmonite the whole 400/., and became the defendant in this action. For the plaintiff it was contended that the agreement was a wager, and therefore that he had a right to demand back the sum deposited by him before it was paid over. The defendant, on the other hand, said that the agreement came within the proviso of 8 & 9 Yict. c. 109, s. 18, which rendered lawful " a subscription or contribution for a sum of money to be awarded to the winner of a lawful game," and his friends relied on a certain case of Batty v. Mar- riott (c), where it was held that a foot-race came within the proviso. The judges, however, overruled that case, and gave Mr. Diggle back his money. At common law wagers, not being indecent, or contrary to public policy, or hurtful to the feelings of third parties, could be enforced by action. But wagers as to the sex of a person (d), as to the issue of a criminal trial (e), as to whether an unmarried woman would have a child before a certain time (/), or as to the result of a parlia- mentary election (») (1876), 1 Q. B. D. 189; 45 Universal Stock Exchange, Limi- L. J. Q. B. 238. See also Trimble ted, [1895] 2 Q. B. 329; 73 L. T. 6. v. Hill (1879), 5 App. Cas. 312 ; (I) Parsons v. Alexander 1855), 49 L. J. P. C. 49. 5 E. & B. 263 ; 24 L. J. Q. B. 277 ; («) Fisher v. Waltham (1843), 4 Thorpe v. Coleman (1845), 1 C. B. Q. B. 889 ; 12 L. J. Q. B. 330. 990 ; 14 L. J. C. P. 260 ; Martin 160 WA GEMING CONTRA CIS. Gaming Act, 1892. Tatam v, Eeeve. De Mattos v. Benja- min. O' Sullivan v. Thomas. Beeston v, Beeston. illegal. Thus, if a man lost a wager, and got another to pay the money for him, until recently an action would lie for the recovery of the money so paid (o). And so if A. requested B. to make a bet for him with C. on a particular horse, and then, after B. had done so, the horse lost, B. might, notwithstanding the statute, have re- covered from A. the money he had had to pay C. (/>). The law on this point, however, has recently been altered by the Gaming Act, 1892 (5), which provides that " any promise, express or implied, to pay any person any sum of money paid by him under or in respect of any contract or agreement rendered null and void by 8 & 9 Vict. c. 109, or to pay any sum of money by way of com- mission, fee, reward, or otherwise in respect of any such contract, or of any services in relation thereto or in connection therewith, shall be null and void, and no action shall be brought or maintained to recover any such sum of money." The following cases, decided since the passing of this Act, should be referred to : — Tatam v. Reeve (r), which held that the Act prevents A., who has, at B.'s request, paid money in settlement of lost bets, from recovering the money from B., even though A. was no party to the betting ; De Mattos v. Benjamin (s), which decided that the Act does not deprive a principal, employing an agent to make bets for him, of his right to recover from such agent any sums received by the agent on account of such bets ; O'Sullivan v. Thomas (t), where money de- posited by A. with B. as stakeholder, to abide the result of a race between A. and a third party, was held not to be money paid under a wagering contract within the meaning of the Act, and, therefore, recoverable by A. from B. before it had been paid over by B. to the third party. In Beeston v. Beeston (u) it appeared that the plaintiff had paid the defendant money to invest for him in betting on horse races. The right horses won, and the defendant gave the plaintiff a cheque, (0) Rosewarne v. Billing; (1816), 33 L. J. C. P. 55 ; 15 C. B. N. S. 316 ; and see Read v. Anderson (1881), 13 Q. B. D. 779 ; 53 L. J. Q. B. 532 ; Bridger v. Savage (1885), 15 Q. B. D. 363 ; 51 L. J. Q. B. 464 ; Britton v. Cook, W. N. (1887), 116; Cohen v. Kittell (1889), 22 Q. B. D. 680; 58 L. J. Q. B. 241. (p) Read v. Anderson, ubi sup. (ij) 55 Vict. c. 9. It was decided in Knight v. Lee, [1893] 1 Q. B. 41 ; 62 L. J. Q. B. 28, that this Act is not retrospective ; and, therefore, a betting agent can recover moneys due to him before the Act, though the action is not commenced until after that date. ()•) [1893] 1 Q. B. 44; 62 L. J. Q. B. 30. (*) (1894), 63 L. J. Q. B. 248 ; 70 L. T. 560. (0 [1895] 1 Q. B. 698 ; 64 L. J. Q. B. 398. {11) (1876), lEx. D. 13; 45 L. J. Ex. 230 ; Ex parte Pyke (1878), 8 Ch. D. 754 ; 47 L. J. Bk. 100 ; Seymour v. Bridge (1885), 14 Q. B. D."460 ; 54 L. J. Q. B. 347 ; Perry v. Barnett (1885), 15 Q. B. D. 388 ; 54 L. J. Q. B. 466. WAGERING CONTRACTS. 167 which was afterwards dishonoured. In an action on the cheque the defence was raised that it was an attempt to enforce a contract pro- hibited by statute. It was held, however, that betting on horse races was not illegal in the sense of tainting any transaction con- nected with it. Beeston v. Beeston (y) was distinguished in the later case of Higginson v. Simpson (as). There the plaintiff was a A tip for tipster, and gave the defendant " Regal" as the probable winner of 5? e .? rai ^ the Grand National. It was agreed between them that the plaintiff should have 21. on " Begal" at 25 to 1 against the horse for that race ; that is to say, that if the defendant backed " Begal " for the Grand National, and the horse won, the plaintiff was to have 50/. out of the defendant's winnings, but if the horse lost, the plaintiff was to pay the defendant 21. Accordingly, the defendant backed " Begal," and it won. Ungrateful for his tip, however, he refused to pay the plaintiff the 50/. ; and it was held that the money could not be recovered by action because the agreement was void within 8 & 9 Vict. c. 109, s. 18. So also money lent for the purpose of gaming cannot be recovered back (//). Whether a bond given simply to secure a racing debt is valid or not, appears to be a doubtful point. In the well-known case of Bubb v. Telverton (2), Bubo v. it was .unnecessary to decide that question, because, as Lord Yelverton. Bomilly, M. B., said, the bond was given "not to pay racing debts, but to avoid the consequences of not having paid them," Though Stock 8 & 9 Vict. c. 109, s. 18, does not expressly mention or allude to transact Stock Exchange transactions, it has been decided that agreements ! tions. between buyers and sellers of shares and stocks to pay or receive the differences between their prices on one day and their prices on another day are gaming and wagering transactions within the meaning of the statute (a). But in Thacker v. Hardy the statute was held not to be a good answer to the claim of a broker employed by the defendant to speculate for him on the Stock Exchange, for commission and an indemnity, the agreement being that the plain- tiff should himself, as principal, enter into real contracts of purchase and sale with jobbers (&). The Betting Houses Act, 1853 (c), makes it unlawful to keep or Betting houses. (f) See ante, n. («), p. 166. (b) (1878), 4 Q. B. D. 685 ; 48 {x) (1877), 2 0. P. L>. 76; 46 L. L. J. Q. B. 289. And see Uni- J. C. P. 192. But see Carlill v. verbal Stock Exchange v. Stevens Carbolic Smoke Ball Co., [1893] 1 (1892), 66 L. T. 612; 40 W. R. Q. B. 2.56 ; 02 L. J. Q. B. 257. 494. (y) McKumellfl. Robinson (1838), (<■) 16 & 17 Vict. 0. 119 ; and see 3 M. i; W. 134 ; 1 11. & 11. 146. 37 Vict. c. 15 ; 36 & 37 Vict. c. 38. (:) (1870), L. R. 9 Eq. 471 ; 39 It was held in 1'ay v. Sims (1889) L. J. Ch. 428. (58 L. J. M. C. 39 ; W. N. (1889) {a 1 (jrizcwood v. Blane (1851), 11 9;, that licensed victuallers may be C. B. 526. convict* ■! under the Betting I louses 168 WA GEB1NG CONTRA GTS. Shaw v. Moiiey. Lotteries. The "mis- sins word" use any "house, office, room, or other place" for betting. This Act, however, does not apply to a case where members of a bona fide club make bets with each other in the club () Couturier v. Ilastie (1850), 5 (*) Paradine v. Jane (1646), H. L. C. 673 ; 22 L. J. Ex. 97. Aleyn, 26 ; and see Manchester (e) Strickland v. Turner (1852), Bonded Warehouse Co. v. Carr 7 Ex. 208 ; 22 L. J. Ex. 115. And 172 IMPOSSIBLE CONTRACTS. Too ill to come. Station not wanted. Appleby v. Myers. Howell v. Coupland. When tlio fulfilment of a contract for personal services is prevented by the act of God, the promisor is excused, unless it clearly appears from the terms of the contract that he was to be liable whatever happened (d). A lecturer, for instance, who did not attend as expected, would have a sufficient legal excuse in a sudden illness. So of an author who had agreed to write a book. But he ought to givo the earliest notice that is reasonably practicable. In such a case as this, the privilege of rescinding the contract is not merely that of the invalided performer, but also that of the party engaging him, who may decline to have a man who is too ill to do his work properly (e). So, too, if a master dies during the service, the servant has no remedy against his executors (/). The intervention of an Act of Parliament will also excuse the performance of a promise, because parties must be considered as contracting with reference to the existing state of the law, and lex non cogit ad impossibilia. In the leading case on this point a lessor had covenanted that no buildings should be erected in a paddock fronting the demised premises, somewhere in Camberwell, and then a railway company, under its compulsory powers, erected a station there (g). As already stated, Taylor v. Caldwell was decided on the ground that when the performance depends on the continued existence of the thing, a condition is implied that the impossibility arising from its accidental destruction shall excuse performance. It has been followed in two important cases to which reference should be made. In Appleby v. Myers (1867) the plaintiff had agreed with the defen- dant to pi;t up some machinery on his premises to be paid for when finished. In the course of the work, premises, machinery, and everything were destroyed by fire. It was held that both parties were excused from further performance, and that no Hability accrued on either side (/<). In Howell v. Coupland (1876) a farmer had agreed to sell to a potato merchant 200 tons of potatoes grown on a particular piece of land belonging to the former. Before the see sect. 6 of the Sale of Goods Act, 1893 (56 & 57 Vict. c. 71), which provides that ' ' where there is a contract for the sale of specific goods, and the goods without the knowledge of the seller have perished at the time when the contract is made, the contract is void." (d) Boast v. Firth (1868), L. R. 4 C. P. 1 ; 38 L. J. C. P. 1 ; and Robinson v. Davison (1871), L. R. 6 Ex. 269; 40 L. J. Ex. 172. (c) Poussard v. Spiers (1876), 1 Q. B. D. 410 ; 45 L. J. Q. B. 621. (/') Farrow v. Wilson (1869), L. R. 4 C. P. 744 ; 38 L. J. C. P. 326. (ff) Baily r. DeCrespigny (1869), L. R. 4 Q. B. 180 ; 38 L. J. Q. B. 98 ; and see Brewster v. Kitchin (1678), 1 Salk. 198 ; and Mayor of Berwick v. Oswald (1853), 1 E. & B. 295 ; 22 L. J. Q. B. 129. (/<) L. R. 2 C. P. 651 ; 36 L. J. C. P. 331. IMPOSSIBLE CONTRACTS. 173 time for performance arrived, the farmer's potatoes were attacked by the potato blight, and he was only able to deliver about 80 tons. It was held that an action to recover damages for the non-delivery of the residue could not be maintained (?'). And now it is expressly provided by sect. 7 of the Sale of Goods Act, 1893 (&), r that " where there is an agreement to sell specific goods, and subsequently the goods, without any fault on the part of the seller or buyer, perish before the risk passes to the buyer, the agreement is thereby avoided." As to ivhen the risk passes, see post, p. 257 et seq. On the other hand, in the recent case of Turner v. Goldsmith (/), Turner v. an action for damages was held to be maintainable against a shirt ° snu ' manufacturer who had agreed to employ the plaintiff as agent and traveller for five years. After about two years the defendant's manufactory was burnt down, and he did not resume business, and had thenceforth ceased to employ the plaintiff. This case should be distinguished from Ehodes v. Forwood (m). The recent case of Hamlyn v. Wood (») may be referred to here, Hamlyn v. though the question determined was as to the circumstances under ^ 00( ^- which the Court will imply a term which is not expressed in a written contract. A., who carried on business as a brewer, entered into an agreement in writing, by which he agreed to sell to B., and B. agreed to buy, all the grains made by A., at the average of the rates charged each year by certain specified firms, from 1885 until 1895. In 1890 A. sold his business, and in consequence ceased to supply grains to B. It was held that a term could not be implied in the contract to the effect that A. would not by any voluntary act of his own prevent himself from continuing the sale of grains to B. for the period mentioned. " It would have been a different thing," said Kay, L. J., "if the contract had been to pay so much down for a supply of grains for ten years." (i) 1 Q. B. D. 258 ; 46 L. J. Q. (m) (1876), 1 App. Cas. 256 ; 47 B. 147. L. J. Ex. 396. {k) 56 & 57 Vict. c. 71. («) [1891] 2 Q. B. 48S ; 60 L. J. {I) [1891] 1 Q. B. 544 ; 60 L. J. Q. B. 734. Q. B. 247. " 174 WRITTEN CONTRACTS AND ORAL EVIDENCE. INTERPRETATION AND OPERATION. Written Contracts and Oral Evidence. [53.] GOSS v. NUGENT. (1833) [5 B. & Ad. 58; 2 N. & M. 28.] Lord Nugent entered into a written agreement with Mr. Gross to buy from him several lots of land for 450/., the vendor undertaking to make a good title to all the lots. Soon afterwards Gross 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 retiring from the transaction. 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 purchase-money, rely- ing on the objection to the title. In answer to that, Mr. Gross wished to prove that after Lord Nugent knew about the defect of the title he agreed to waive it. This, how- ever, was not allowed, for the rule is that a written contract within the Statute of Frauds cannot be varied by oral evidence of what passed between the parties subsequently to the making of it. The rule that a written, contract cannot be varied by parol is subject to one or two exceptions. WRITTEN CONTRACTS AND ORAL EVIDENCE. 175 Supposing the contract to be one which, though it is in "writing, When need not have been, it may be varied by parol evidence of what took n g e( j not place between the parties after the date of the agreement. Thus, if have been the original agreement between Goss and Nugent had not been m ^"^ m ^' required by the Statute of Frauds to be in writing, Nugent's con- sent to take one lot though the title was bad might have been proved (o). And, notwithstanding the general rule that parol evidence of To show what took place between the parties previously to or contempora- neously tuith the written agreement is inadmissible, such evidence may nevertheless be given to show that the execution of the written agreement was conditional on some event happening ; in fact, that a document purporting to be a final and absolute contract purports to be what it is not. Thus, in Pym v. Campbell (b), the parties had entered into a written agreement for the sale of an interest in a patent, and at the same time had verbally agreed that the sale should not take place unless an engineer named Abernethie approved of the invention. Abernethie did not approve, and the question was whether the condition could be proved. It was held that it could, on the ground that the object of the evidence offered was, not to vary a written agreement, but to show that there was not an agree- ment at all. Similar evidence was also admitted in a case where two farmers had agreed in writing that one of them should transfer his farm to the other, and had at the same time verbally agreed that the transfer should be conditional on the landlord's consent(c). To take yet another illustration of constant occurrence, a cattle- Consign- dealer a few years ago wanted to send some cattle from Guildford mentnote - to the Islington market. They told him at Guildford Station that the beasts would be duly forwarded to King's Cross ; but they induced him to sign 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 or looked after properly. The company's view was that the consignment note was conclusive evidence of the terms of the contract, and therefore that they had never undertaken to carry beyond 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 be given of the con- («) See also Eden v. Blake (1845), A. C. 317 ; 57 J. P. 711. 13 M. & W. 614 ; 14 L. J. r:x. 194 ; (h) (1856), 6 E. & B. 370 ; 25 L. Noble v. Ward 1867 . L. I.\ 2 Ex. J. Q. B. 277. 135; 36 L. J. Ex. 91 : Mercantile [e] Wallis v. Littel (1861), 11 C. Bank of Sydney v. Taylor, [1893] B. N. S. 369 ; 31 L. J. C. P. 100. 176 WRITTEN CONTRACTS AND ORAL EVIDENCE. Separate oral agree- ment. To show fraud, ille- gality, &c. Latent and patent ambigui- ties. versation that had taken place between the plaintiff and the com- pany's servants before the consignment note was signed (d). On the other hand, when a writing appears to be a complete con- tract, oral evidence to vary it is inadmissible. In Evans v. Roe (e), for instance, a memorandum in writing by which the plaintiff agreed to become foreman of the defendant's works was construed to show a weekly hiring, and it was held that evidence of a conver- sation, at the time of signing the contract, tending to show that a yearly hiring was intended, could not be given. There are other cases, however, in which parol evidence may be given, notwithstanding that there is a written contract. ' ' The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the Court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them " (/), may be proved, e.g., on the execution of a lease, an oral promise by the lessor to keep down the game (.Pym (1816), 6 Taunt. B. D. 708; 50 L. J. Q. B. 373; 1 16 ; 1 Holt, N. P. 95. The Nifa, [1892] P. 411 ; 62 L. J. {x) (1879), 5 0. P. D. 130 ; 41 L. P. 12. T.GOG. See also Barrow c.Dyster K 2 180 WRITTEN CONTRACTS AND EVIDENCE OF USAGE. explain or add terms. Custom to take holi- days. Stock Exchang usages. Requisites of custom. custom of 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, though not geographically so, was always considered by merchants as part of the Baltic (y); that "good barley" and "fine barley " were different things (2) ; that 1,000 rabbits meant 1,200 (a) ; and that, when a young lady was engaged as an actress for "three years," the three years meant only the theatrical seasons of those years (6). (2.) Incidents may be annexed. The leading case is an excellent illustration here. So is Hog. v. Stoke-upon-Trent (c), where it was held that where some workmen by written contract engaged them- selves "to lose no time on our own account, to do our work well, and behave ourselves in every respect as good servants," evidence might nevertheless be given of a custom in the particular trade for the workmen to have certain holidays in the year, and the Sundays to themselves. The principle on which incidents are allowed to be annexed to written contracts is that ' ' the parties did not mean to exjxress in writing the whole of the contract by which they intended to be bound, but to contract with reference to certain known usages" [d). Except when the mode of dealing is that of a particular house, such as Lloyd's (in which case he must be proved to have been acquainted with it) (e), a man is bound by the usages of the place or trade with which his contract has to do, and his ignorance of those usages is immaterial. A man, for instance, who employs a broker on the Stock Exchange is bound by the usages of the Stock Ex- change (/); and a man in London who authorizes another to contract for him at Liverpool is bound by the Liverpool usages. To make a particular custom good, it must be immemorial, con- tinued, peaceable, reasonable, certain, compulsory, and not incon- sistent. Reasonableness is a question of law for the Court. In Hall v. Nottingham (romise 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, though totally inconsistent with such intention, is precise and clear. The chief rules of construction 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 not to have been broken by the retired surgeon's acting in an emergency, so long as he was not trying to get his practice back (I). So, in a charter party, " the words 'as 'near thereto as she can safely get' must receive a reasonable and not a literal application " (m). So, too, where a young man living with his father in Lambeth was at the same time apprenticed to some mechanical engineers in the same district, a notice to remove to Derby was held unreasonable (/<). (2.) The construction must bo liberal. For example, the masculine will generally include both genders. (3.) The construction must be favourable. 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. See the leading case. (4.) Words must be construed in their ordinary sense. An annuity was to become void if a woman, separated from her husband, " associated " with a particular person. It was held that to receive the man's visits whenever he chose to call was "asso- ciating" with him, and that, in fact, all intercourse, however innocent, was prohibited (o). In the recent case of M'Cowan v. (1) Rawlinson v. Clarke (1845), 14 M. & W. 187 : 14 L. J. Ex. 364. (m) Per Lush, J., in Capper v. Wallace (1880), 5 Q. B. D. 163; 49 L. J. Q. B. 350. («) Eaton v. Western (1882), 9 Q. B. D. 636; 52 L. J. Q. B. 41. (o) Dormer v. Knight (1809), 1 Taunt. 417; and see Barton v. Fitzgerald (1812), 15 East, 530; Biddlecombe v. Bond (1835), 4 Ad. .5c E. 332; 5 N. & M. 621. CONSTRUCTION OF CONTRACTS. 183 Baine (p), the law was stated by Lord Watson to be that "contracts ought to be construed according to the primary and natural mean- ing of the language in which the contracting parties have chosen to express the terms of their mutual agreement. But there are excep- tions to the rule. One of these is to be found in the case where the context affords an interpretation different from the ordinary mean- ing of the words; and another in the case where their conventional meaning is not the same with their legal sense. In the latter case, the meaning to be attributed to the words of the contract must depend upon the consideration whether, in making it, the parties had or had not the law in their contemplation." Usage, however, may give words a technical meaning. (5.) The whole canted must be considered. Context. One part of the document may throw important light on another ; ex antecederdibus et consequentibus fit optima interpretatio. The luminous judgment of Lord Chelmsford, L. C, in Monypenny v. Monypenny ( as a war- to a warranty. But a warranty must bo given, if at all, at the time ranty. 188 WARRANTY DURING TREATY FOR SALE, Warranty given afterwards requires new con- sideration. Horse dealing. Oral repre- sentations cancelled by written contract. Allen v. Pink. of the sale. Representations and assertions made he/ore it, unless continuing, or bottomed in fraud, are no good (t). So, too, a warranty given after a sale is void unless there is a new consideration ; for the first consideration is exhausted by the transfer of the chattel without a warranty (u). "It frequently happens that persons (not lawyers) hardly consider this : they quote all the seller or dealer says as he buttons up the cheque in his pocket, as if that could in any way be a warranty. Some dealers and horse-sellers say all sorts of things when copeing or selling a horse, but they confine themselves to puff, and never commit themselves to any statement of a fact as to the subject of the deal. It is not until the bargain is entirely over that they comfort the buyer by statements which he fondly looks upon as warranties, but which cannot be so considered" (a;). When the terms of a contract have been reduced into writing, no oral repre- sentations can be relied on as a warranty. The written contract shortens and corrects the representations, so that whatever terms are not contained in the document must be struck out of the trans- action (?/). But a mere memorandum, not intended to be final, will not exclude oral evidence of a warranty. Thus, in Allen v. Pink (z), where a paper was signed by the vendor and given to the vendee containing " Bought of G. Pink a horse for the sum of 11. 2s. 6cZ.," it was held that evidence might be given of a contemporaneous warranty. " The general principle stated by Mr. Byles," said Lord Abinger, C.B., " is quite true, that if there has been a parol agree- ment, which is afterwards reduced by the parties into writing, that writing alone must be looked to to ascertain the terms of the contract. But the principle does not apply here. There was no evidence of any agreement by the plaintiff that the whole contract should be reduced into writing by the defendant. The contract is first concluded by parol, and afterwards the paper is drawn up which appears to have been meant merely as a memorandum of the transaction, or an informal receipt for the money, not as containing the terms of the contract itself." (0 See Ormrod v. Huth (1845), 14 M. & W. 651 ; 14 L. J. Ex. 366. See also Cowdy v. Thomas (1877), 36 L. T. N. S. 22. («) Roscorla v. Thomas (1812), 3 Q,. B. 234 ; 2 G. & D. 508. (r) Lascelles on Horse Warranty (2nded.), p. 34. (y) Pickering v. Dowson (1813), 4 Taunt. 779. (z) (1838), 4 M. & W. 140 ; 1 H. & H. 207. IMPLIED WARRANTY OF TITLE. 189 Implied Warranty of Title. MORLEY v. ATTENBOROUGH. (1849) [58.] [3 Excn. 500 ; 18 L. J. Ex. 148.] The defendant in this case was the well-known pawn- broker of that name. A person named Foley having hired a harp of Messrs. Chappell, music sellers, pledged it with the defendant for 15/. 15s. on the terms that if the sum advanced were not repaid within six months he should be at liberty to sell it. The harp not being redeemed within the stipulated time, Attenborough sold it to the plaintiff. All this came to the ears of Messrs. Chappell, who got back their harp from Morley ; and that gentleman, to recoup himself, now brought an action against the pawn- broker, 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 pawnbroker 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. The leading case (which was followed in Bagueley v. Ilawley) (a) was the chief authority for the supposed rule that on the sale of a chattel personal there is no implied warranty of title. The rule, how- Rule ever, was said to be pretty well " eaten up by the exceptions " (i). hardly For example, the sale of goods in a shop, or in a warehouse, was exists. held to import an implied warrant y of title ; and, indeed, Mr. Ben- jamin, in his book on the Sale of Personal Property, went so far as to state the effect of Eicholtz v. Bannister (c) (where a Manchester Eicholtz r. job warehouseman in his warehouse sold the plaintiff a quantity of Bannister, woollen goods which he described as "a job lot just received by («) (1867), L. R. 2 C. P. 625 ; recent case of Raphael v. Burt 36 L. J. C. P. 328. (1884), 1 C. & E. 325, where there (b) Per Lord Campbell in Sims v. was held to be an implied warranty Marryat (1851), 17 Q. B. 291. of title on the sale of some American (c) (1861), 17 C. IS. X. S. 70S; bon.ls. which turned out I i 34 L. J. C. P. 105. Bee also the been stolen. 190 IMPLIED WARRANTY OF TITLE. him ") to be that " the sale of a personal chattel implies an affirmation hy 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 " (d). And this view of the law has now been adopted in the Sale of Goods Act, 1893(e), s. 12, which provides that : — " In a contract of sale, unless the circumstances of the contract are such as to show a different inten- tion, there is — ( 1 . ) An implied condition on the part of the seller that, in the case of a sale, he has a right to sell the goods, and that, in the case of an agreement to sell, he will have a right to sell the goods at the time when the property is to pass : (2.) An implied warranty that the buyer shall have and enjoy quiet possession of the goods : (3.) An implied warranty that the goods shall be free from any charge or incumbrance in favour of any third party, not declared or known to the buyer before or at the time when the contract is made." As to what circumstances are such as ' ' to show a different inten- tion," reference should be made (in addition to Morley v. Atten- borough, and Bagueley v. Hawley, supra) to Chapman v. Speller (/), Sale by where it was held that on the sale of a forfeited pledge by a pawn- broker, broker, the seller must be considered as undertaking merely that the subject of sale is a pledge, and is irredeemable, and that he does not know o/any defect of title. A " different intention " may also be inferred from the nature of the subject-matter sold, e.g., a. patent right (g). And it should be observed that the implied condition and warranties arising under the above section may be negatived or varied not only by the circumstances, but also by the terms, express or implied, of the contract, under sect. 55 of the same Act, which provides that "Where any right, duty, or liability would arise under a contract of sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by usage, if the usage be such as to bind both parties to the contract." The effect of this latter section is to preserve intact the general principles and rules of construction applicable to contracts, and concisely expressed in the three maxims, " modus et conventio vincunt legem"; " expression fucit cessare taciturn" ; "in contractis tacite insunt quai sunt moris et consuetudinis.'''' {(T) Benj. Sale of P. P. (4th ed.), Blades (1814), 5 Taunt. 657. p. 634. {ff) Hall v. Conder (1857),2C.B. (/•) 56 & 57 Vict. c. 71. N. S. 22 ; 26 L. J. C. P. 138, 288 ; (/') (185;)), 14 Q. B. 621; 19 Smith v. Neale (1857), 2 C. B. N. L. J. Q. B. 239. See also Peto v. S. 67 ; 26 L. J. C. P. 143. IMPLIED WARRANTIES. 191 Implied Warranties. — ♦ — JONES v. JUST. (1868) [59.] [L. E. 3 Q. B. 197 ; 37 L. J. Q. B. 89.] 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 realised 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 Caveat goods sold, and, unless there is an express -warranty, there is none. em P tor - But a warranty is implied in the following cases : — (1.) When goods are sold hy a trader for a particular purpose of Particular which he is well aware — e.g., copper for sheathing a ship, — so that P^T 086 * the buyer necessarily trusts to the judgment or skill of the seller, they must be reasonably fit for the purpose (/;). A case often referred to is Biggo v. Parkinson (?'), where a provi- Bigge v. Parkinson. (A) Jone3 v. Bright (1829), 5 the sale of a specified article under Bing. 533 ; 3 M. & P. 155 ; Gray its patent or other trade name, there v. Cox (182.')), 4 B. & C. 108; 8 D. is no implied condition as to ita ). Bentson v. The recent case of Bentson v. Taylor (7) is an excellent illustration a y or - f the law discussed in Behn v. Burness ; and the following extract from the judgment of Bowen, L. J., deserves the most careful attention :— " When a contract is entered into between two parties, every representation made at the time of the entering into the contract may or may not be intended as a warranty, or as a promise that the representation is true. When the representation is not contained in the written document itself, it is for the jury to say whether the real representation amounted to a warranty. But, when you have a representation made in a written document, it is obviously no longer for the jury, but for the Court, to decide (-7) Sale of Goods Act, 1893 (i) [1893] 2 Q. B. 274 ; G3 L. J. (56 & 57 Vict. c. 71), s. 11 (1) (a). Q. B. 15. (A) lb. s. 11 (1) (b . WARRANTIES AND REPRESENTATIONS. 197 whether it is a mere representation, or whether it is what is called (I admit not very happily) a ' substantive part of the contract,' that is, a part of the contract which involves a promise in itself. It might be necessary to take the opinion of the jury on matters of fact which would throw light on the construction, but the question of construction itself would remain until the end of the case for the Court to decide. But, assuming the Court to be of opinion that the statement made amounts to a promise, or, in other words, a substantive part of the contract, it still remains to be decided by the Court, as a matter of construction, whether it is such a promise as amounts merely to a warranty, the breach of which would sound only in damages, or whether it is that kind of promise the performance of which is made a condition precedent to all further demands under the contract by the person who made the promise against the other party — a promise the failure to perform which gives to the opposite party the right to say that he will no longer be bound by the contract. . . . There is no way of deciding that question except by looking at the contract in the light of the surrounding circumstances, and then making up one's mind whether the intention of the parties, as gathered from the instrument itself, will best be carried out by treating the promise as a warranty sounding only in damages, or as a condition pre- cedent by the failure to perform which, the other party is reheved of his liability. In order to decide this question of construction, one of the first things you woidd look to is, to what extent the accuracy of the statement — the truth of what is promised — would be Hkely to affect the substance and foundation of the adventure which the contract is intended to carry out. There, again, it might be necessary to have recourse to the jury." There exists, too, a large class of cases in which relief is given on Belief on equitable grounds to persons induced to enter into agreements on equitable the faith of innocent misrepresentations. These are cases in which one party to the contract has, from the nature of the transaction, special and peculiar means of knowledge (k) as to the subject- matter from which the other party is excluded, e. g. (I), agreements for the sale of landed property (m), or contracts for marine insur- ance. In many instances of this kind, the mere omission to state material facts is in itself sufficient to enable the deceived party to release himself from his obbgation. (k) As to the case where plaint iff (I) Phillips v. Caldcleugh (1868), had means of discovering that the L. R. 4 Q. B. 159 ; 38 L. J. Q. B. representation was untrue, see Red- 68. grave v. Hurd (1881), '20 Ch. D. 1 ; (m) Proudfoot v. Montefiore 51 L. J. Ch. 113. (1867), L. R. 2 Q. B. 511; 36 L. J. Q. B. 226. 198 WARMANTY ON LETTING FURNISHED HOUSES. Implied Warranty on letting Furnished House. [61.] Exception to rule. Attempts SMITH v. MARRABLE. (1843) [11 M. & W. 5 ; 12 L. J. Ex. 223.] " 5, Brunswick Place, Sept. 19, 1842. " Lady Marrable informs Mrs. Smith that it is her deter- mination to leave the house in Brunswick Place as soon as she can talc another, paying a week's rent, as all the bedrooms occupied but one are so infested icith bugs that it is imjwssible 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, hugs or no bugs. The Marrables, on the other hand, successfully contended that it is an implied condition in the letting of a furnished house that it shall be reasonably fit for habitation, and that, if it is not fit, the tenant may quit without notice. The famous bug case, after having been disrespectfully spoken of for many years, was in 1877 expressly affirmed by the case of "Wilson v. Finch Hatton(»), where its principle was applied to 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, in the absence of deceit, there is no such impbed condition by the lessor of land or houses (o), nor that he will do any repairs (p), nor even that the house will endure during the term. See, however, the 12th section of the Housing of the Working Classes Act, 1885 (48 & 49 Vict. c. 72), with regard to houses let for habitation by persons of the working classes at a low rent (q). In the case of («) (1877), 2 Ex. Div. 336; 46 L. J. Ex. 489. (o) Keates v. Cadogan (1851), 10 C. B. 591 ; 20 L. J. C. P. 76. {})) Gott v. Candy (1853), 2 E. & B. 847; 23 L. J. Q. B. 1. (q) Walker v. Hobbs (1889), 23 Q. B. D. 458; 38 W. R. 63. WARRANTY ON LETTING FURNISHED HOUSES. 199 Manchester Bonded Warehouse Co. v. Carr (r), where a building to increase had fallen in consequence of a floor being overloaded with flour, { i an .Farnsworth(1844), v. McLean (1885), 53 L. T. 94 ; 33 7 M. & G-. 576 ; 13 L. J. C. P. W. R. 588. 215. (u) [18951 2 Q.B. 395; 73L.T. (2) Weigall v. Waters (1795), 6 174. T. R.488. 2C0 LIFE INSURANCE. Life Insurance. — ♦ — [62.] HEBDON v. WEST. (1863) [3 B. & S. 5*9; 32 L. J. Q. B. 85.] This was an action against an insurance society. The plaintiff had been for many years a clerk in a bank at Preston, and had proved very useful to his employers, of whom a geutleman named Pedder was the senior and managing partner. Pedder was much pleased with the man, and promised him two things, — one, that he would not, during his life, enforce payment of a debt of 4,000/. or 5,000/. which Hebdon owed the bank, and the other, that he would pay him an increased salary of 600/. a year during the next seven years. Careful man that he was, Hebdon obtained Pedcler's permission to insure the latter's life in respect of these promises, and the chief question now was whether the insured had such a pecuniary interest in Pedder's life as to satisfy 14 Geo. III. c. 48. It was held that in respect of the 600/. a year salary he had, but not in respect of the other promise. It was held also that a person cannot recover from an insurance company more than the amount of his insurable interest in the life of the person insured. [63] DALBY v. INDIA AND LONDON LIFE INSURANCE CO. (1854) [15 C. B. 365; 24 L. J. C. P. 1.] The effect of this case is to overrule Godsall v. Boldero (a), and to decide that a contract of life insurance is not, like that of fire or marine insurance, a contract of indemnity merely, («) (1807), 9 East, 72. See some Rodocanachi (1882), 7 App. Cas. interesting remarks of Lord Black- 333, at p. 440 ; 51 L. J. Q. B. 548. burn on tins case in Burnand v. LIFE INSURANCE. 201 but entitles the assured to receive the exact sum for which he has insured, no matter how much in excess of his real loss it may be. 14 Geo. III. c. 48, s. 1, provides that no insurance shall be made Necessity by any person on the life of another, unless the person for whose +erest™" sake the policy is made has an interest in that life. What then is an " interest " ?(&). In the first place, a man is presumed to have an interest in his own Who has life. But, on the other hand, if it can be shown that he is insuring m eres " his life with another person's money, and for that other's benefit, the policy will be void, for it is then nothing better than an attempt to evade the statute (c). A creditor may insure his debtor's life, Creditor, and, even though the debt is afterwards paid, may recover the money from the insurance office (<1). A cestui que trust may insure Cestui que the life of his trustee (e), and a wife her husband's (/). A husband trust - is not presumed to have such an interest in his wife's life. The Husband "Married Women's Property Act, 1882 "(g), gives power to a an w e * married woman to effect a policy on her own or her husband's life for her separate use, and provides that, if a husband insures his life in a policy expressed on the face of it to be for the benefit of his family, it shall create a trust for them. In the recent case of Murderer Cleaver v. Mutual Eeserve Fund (A), a husband having insured his ^ke° life for the benefit of his wife, died, and his wife was convicted of benefit, his murder. It was held, that the effect of sect. 11 of the above Act was to create a trust in favour of the wife in respect of the sum insured, but that, inasmuch as it was against public policy for the wife to benefit by her own criminal act, the trust in her favour failed, and a resulting trust arose in favour of the deceased hus- band's estate, in respect of which his executors were entitled to recover the sum insured from the insurance company. But, Father, generally, the interest required by the statute is a pecuniary interest (/) ; and therefore an insurance by a father in his own (b) Lucena v. Crawford (1808), (/) Reed v. Roy. Exch. Co. 2 N. R. 302; Wilson v. Jones (1796), Peake Add. Ca. 70. (18G7), L. R. 2 Ex. 139 ; 36 L. J. {g) 45 & 46 Vict. c. 75, s. 11, re- Ex. 78. enacting 33 & 34 Vict. c. 93, s. 10, (c) Wainwright v. Bland (1836), and see as to this In re Soutar's 1 M. k W. 32; 5 L. J. Ex. 147; Policy Trust (1884), 26 Ch. D. 236 ; Shilling v. Accidental Death Ins. 54 L. J. Ch. 256. Co. (1857), 2 H. k N. 42 ; 27 L. J. (A) [1892] 1 Q. B. 147 ; 61 L. J. Ex.17. Q. B. 128. (d) Anderson v. Edie, 2 Park, (i) See Barnes v. London, Edin- Ins. 914 (8th ed.). burgh and Glasgow Assur. Co., (e) Collett v. Morrison (1851), 9 [1892] 1 Q. B. 861. Hare, 162 ; 21 L. J. Ch. 878. 202 LIFE INSURANCE. Name. Time at which interest must exist. Assign- ment of life policy. Construc- tion of policies. name on the lifo of his son, ho having no pocuniaiy interest in tho continuance of it, is void (A 1 ). The name of the party interested must be inserted in the policy (J). The time at which the required interest must exist is the time of tin- < ntering into the contract. It may have ceased at the time of the death, but the insurance office will nevertheless be bound to pay tho money, for, as already stated, life insurance is not a mere contract of indemnity. But, as we have also seen already, a man cannot recover more than the amount of his insurable interest at the time of the contract. He could not, for instance, insure with half a dozen different offices and recover the money from all of them. This is the effect of the construction placed by Hebdon v. West on sect. 3 of 14 Geo. III. c. 48. A life policy may be assigned, either by indorsement or by a separate instrument, and the assignee may sue in his own name without showing any interest of his own ; but a written notice of the assignment must be given to the insurance company (m). In the recent case of Newman v. Newman (■?<), it was held that the Act which requires this notice is intended to apply only as between the insurance office and the persons interested in the policy, and does not affect the rights of those persons inter se ; so that where a first incumbrancer on a policy had not given such notice as pre- scribed by the Act, and a second incumbrancer with notice of the prior charge had given the statutory notice, it was held that the second incumbrancer did not thereby obtain priority. The recent case of South Staffordshire Tramways Co. v. Sickness and Accident Assurance Association (o), may be referred to on the construction of policies of lifo insurance. The plaintiffs, a tramway company, effected with the defendants an insurance against " claims for personal injury in respect of accidents caused by vehicles, for twelve calendar months from November 24, 1887," to the amount of " £250 in respect of any one accident." On November 24, 1888, one of the plaintiffs' tramcars was overturned, forty persons were injured, and the plaintiffs became liable to pay claims to the amount of £833. The Court decided, first, that the policy ex- cluded November 24, 1887, but included November 24, 1888; (/•) Halford v. Kymer (1830), 10 B. & C. 724. (/) 14 Geo. III. c. 48, s. 2. As to whether an insurance against disease is a ' ' policy ' ' within this Act, see Carlill v. Carbolic Smoke Ball Co., [1893] 1 Q. B. 256; 62 L. J. Q. B. 257. (m) 30 & 31 Vict. c. 144. See also 51 Vict. c. 8, s. 19, which provides that an assignment must be duly stamped before the assurer can pay any claim arising under it. (;/) (1885), 28 Ch. D. 674; 54 L. J. Ch. 598. (o) [1891] 1 Q. B. 402 ; 60 L. J. Q. B. 47, 260. And see Hamlyn v. Crown Accidental Ins. Co., [1893] 1 Q. B. 750 ; 62 L. J. Q. B. 409. LIFE INSURANCE. 203 and, secondly, that " accident" meant injury in respect of which, a person claimed compensation from the plaintiffs, and that the liability of the defendants -was consequently not limited to £250 ; and therefore the plaintiffs wero entitled to recover the amount of £833. A person insuring his life has usually to answer a number of Conditions questions as to the state of his health, the illnesses he has had, &c. of l lfe If it is made a condition of the policy that those questions shall be answered truly, the jiolicy will become void even for immaterial and unintentional errors (p). In that case the truth of the declarations is the basis of the jsolicy. If there is no such condition, the question is whether the concealment or rnisrej)resentation was of a material fact (q). See Grogan's case (1885), 53 L. T. 761. People who insure their lives should be a great deal more careful than they are to look at the conditions of a policy before signing it. Most people, it is believed, would enter into such a contract without noticing that they were never to play a game at lawn-tennis, or run over to Paris for a few days, or join the volunteers, or the Salvation Army, without the leave of the office. A common condition in a policy is that it shall become void in the event of the insured com- mitting suicide. As such a condition (according to the more accepted oisinion) covers suicide while in a state of insanity (?■), and as insanity is a disease from which even the most gifted are not exempt, any more than they are from colds or fevers, a wise man will draw his pen through it. This branch of the subject is well illustrated by the recent cases of Winspear v. Accident Insurance Co. ($), and Lawrence v. Acci- dental Insurance Co. (t). In the former case a man had effected Winspear's an insurance against death by accidental injury, but the policy case ' contained a proviso that the insurance should not extend " to any injury caused by or arising from natural disease or iveahness or ex- haustion consequent on disease." During the time this jiolicy was in force, the insured, whilst crossing the river at Edgbaston, was seized with an epileptic fit, and fell into the water and was drowned. (p) Anderson v. Fitzgerald (1853), also Horn v. Anglo-Australian 4 H. L. C. 507; 17 Jur. 995; Life Assurance Co. (1861), 30 L. J. Thomson v. Wecms (1884), 9 App. Ch. 511 ; 4 L. T. 143 ; Dufaur v. Cas. 671 ; 21 So. L. R. 791 ; Lon- Professional Life Co. (1858), 25 don Guarantee Co. r.Fearney( 1880), Beav. 602 ; 27 L. J. Ch. 817. 5 App. Cas. 911 ; 43 L. T. 390. (s) (1880), 6 Q. B. D. 42; 43 (q) London Assurance Co. v. L. T. 459 ; and see Bawden v. Mansel (1879), 11 Ch. D. 363; 48 London, Edinburgh and Glasgow L. J. Ch. 331. Ass. Co., [1892] 2 Q. B. 534 ; 61 (r) Clift v. Schwabe (1846), 3 C. L. J. Q. B. 792. B. 437 ; 17 L. J. C. P. 2 ; and see (/) (1881), 7 Q. B. D. 216; 50 Borradailc v. Hunter (1843), 5 M. L. J. Q. B. 522. 6 G. 639 ; 12 L. J. C. P. 225. See 204 LIFE INSURANCE. Law- rence's case. It was held that the executrix could recover on the policy, in spite of the proviso. In the other case, a man who had effected a policy with much the same kind of proviso was taken ill on the platform at Waterloo, and fell in a fit on to the line, where an engine passed over and killed him. On the authority of TVinspear's case, it was held that the insiu'ance company were not protected by their pro- viso. "We must look," said Watkin Williams, J., "at only the immediate and proximate cause of death, and it seems to me to he impracticable to go hack to cause upon cause, which would lead us hack ultimately to the birth of the person, for, if he had never been Isitt's rase, born, the accident would not have happened." These two cases should, however, be compared with the recent case of Isitt v. Railway Passengers' Assurance Co. (w), where a person who had died from pneumonia, owing to cold caught while confined in his room, by an "injury caused by accident," and who was more liable to catch cold and less capable of resisting illness through debility resulting from the accident, was held to have died from " the effects of such injury." Independently of conditions, a policy is vitiated by felonious suicide, being killed in a duel, or being executed (x) ; as also by fraudulent misrepresentation or concealment of material facts at the time of effecting the policy. If the premium is not paid in the stipulated manner, the policy will become void. By receiving premiums, however, with full knowledge of the breach, the insurers will be deemed to have waived the forfeiture (y). In Leshe v. French (z), it was held that when a person, not the sole beneficial owner, pays the premiums to keep up a policy of life insurance, he is entitled to a lien on the policy or its proceeds in the following cases : — ( 1 . ) By contract with the beneficial owner. (2.) By reason of the right of trustees to an indemnity out of their trust property for money expended by them in its preser- vation. (3.) By subrogation to their right of some person who at the Premiums not paid. Leslie v French. («) (1889), 22 Q, B. D. 504; 58 L. J. Q. B. 191. (x) Amicable Society v. Bolland (1830), 2 Dow. & CI. 1 ; 4 Bligh, N. S. 194. See also Cornish v. Accident Insurance Co. (1889), 23 Q. B. D. 453 ; 58 L. J. Q. B. 591. (ij) Wing v. Harvey (1854), 5 De Gr. M. & G-. 265 ; 23 L. J. Ch. 511. See also the recent case of Canning v. Farquhar (1886), 16 Q. B. D. 727 ; 58 L. J. Q. B. 225, where a man had died after the acceptance of his proposal, but be- fore tender of the premium, and it was held that the assurers need not grant a policy. («) (1883), 23 Ch. D. 552; 52 L. J. Ch. 762 ; Falcke v. Scottish Imperial (1886), 34 Ch. D. 234; 35 W. R. 143. FIRE INSURANCE. 205 request of trustees has advanced money for the preservation of the property ; and (4.) By reason of the right of a mortgagee to add to his charge any money paid by him to preserve the property. In no other cases can a lien on a policy for premiums paid be acquired either by a stranger or by a part owner of the policy. Fire Insurance. DARRELL v. TIBBITTS. (1880) [64] [5 Q. B. D. 560; 50 L. J. Q. B. 33.] A steam roller belonging to the Brighton Corporation was so heavy that it broke the gas pipes in a street, and caused an explosion in one of the houses. The tenants of the house obtained compensation from the Corporation for the damage so done and repaired the premises, as they were bound to do by the terms of their lease. But it happened that the landlord had insured the house with the plaintiffs by a policy against fire covering injury by gas explosion, and the plaintiffs, unaware that by the terms of the lease the lessees were bound to make good injuries done by an explosion of gas, paid the policy money. But when they heard that the tenants had put the house all right again, they claimed a return of their money ; and they were held to be entitled to it, because a policy of fire insurance is a contract of indemnity. As was remarked by Brett, L.J., if the plaintiffs could not recover the money back, " the whole doctrine of indemnity would be done away with ; the landlord would be not merely indemnified, he would be paid twice over." The person who effects an insurance against fire must have an Necessity for "in- terest." intercut in the property insured, and ho cannot recover beyond his *' 206 FIRE INSURANCE. Communi- cation of material facts. Alteration of pre- mises. Fires in London. Castellain r. Preston. interest. It is his duty, when effecting the insurance, to com- municate to the insurers all material facts (a) ; and it is an implied condition that his description of the property is accurate (a). But when payment is resisted by insurers on the ground of misrepre- sentation, the onus is on them to prove very clearly that such mis- representation has been made. Thus, where a firm made a proposal in writing for a policy of fire insurance, and to the question " Has the proponent ever been a claimant in a fire insurance company ? " answered " No," it was held that claims made by a member of the firm before ho became a partner in it were not covered by the question, and that the answer was consequently not untrue (5). It is also an implied condition when a house is insured, that it shall not be attired so as to increase the risk(c). "When a building in the metropolitan district is burnt down, any person interested may require the insurance money to be laid out in repairing or rebuilding the structure {), is treated as the contract for insurance. Therefore facts which have come to the knowledge of the assured after the slip is signed, but before the policy is completed, need not be com- (?) Stribley v. Imp. Mar. Ins. (m) Mercantile Steamship Co. v. Co. (1876), 1 Q. B. D. 507; 45 Tyser (1881), 7 Q. B. D. 73; 29 L. J. Q. B. 396. W. R. 790. (k) Bates r. Hewitt (1867), L. R. (w) Gandy r. Adelaide Co. (1871), 2 Q. B. 595 ; 36 L. J. Q. B. 282. L. R. 6 Q. B. 746 ; 40 L. J. Q. B. (/) Ionides v. Pender(1874),L. R. 239; but see Harrowerv. Hutchin- 9 Q. B. 531 ; 43 L. J. Q. B. 227 ; son (1870), L. R. 5 Q. B. 584 ; 39 and see Rivaz v. Gerussi (1880), 6 L. J. Q. B. 229. Q. B. D. 222 ; 50 L. J. Q. B. 170 ; (o) Haywood v. Rodgers (1804), Tate v. Hyslop (1885), 15 Q. B. D. 4 East, 590 ; 1 Smith, 289 ; Knight 368 ; 54 L. J. Q. B. 592. v. Cotesworth (1883), 1 C. & E. 48. {p) 30 & 31 Vict. c. 23, s. 7. 210 ABANDONMENT TO UNDERWRITERS. Know- ledge of ageiit. municated() (1761), 3 Burr. 1237 ; 1 W. Bl. 315. DEVIATION. 213 gone. It was held that there must be a part return of the premium for the risk never incurred, viz., that of the voyage from Ports- mouth to Halifax. " There are two parts," said Lord Mansfield, "in this contract; and the premium may be divided into two distinct parts, relative, as it were, to two voyayes." If the assured has been guilty of fraud (e.g., if he knew the ship Fraud and was lost when he insured her) he cannot claim a return of the pre- eg 1 ' " mium, even though the risk never commenced (k). So, where a policy is illegal, and the voyage has been performed, there can be no return, because in pari delicto potior est conditio possidentis (I). But while the illegal contract remains executory, there is a locus pcenitentice, and the assured may recover his pre- mium on formally renouncing and retiring from the whole trans- action (to). Though not a case of marine insurance, the case of Ferns v. Ferns v. Carr(«) may be briefly referred to here. A Mr. Ferns was, in arr ' November, 1880, bound as an articled clerk for five years to a solicitor named Carr, and a premium, of £150 was paid. In December, 1883, Carr died, leaving no partner to continue Ferns' legal education during the remaining two years of the articles. In an action by Ferris' pater against Carr's executors, it was held that the estate was not liable for the return of any part of the premium. Deviation. — ♦ — SCARAMANGA v. STAMP. (1880) [68.] [5 C. P. D. 295; 49 L. J. C. P. 674.] The defendants' steamship " Olympias " was chartered by the plaintiff to carry a cargo of wheat from Cronstadt to Gibraltar. "When nine days out, she sighted another (k) Wilson v. Duckett (1762), 3 13, 68.; Herman v. Jeuohner (1885), Burr. 1361; Cope v. Rowlands 15 Q. B. D. 561 ; 54 L. J. Q. B. (1836), 2 M. & W. 149 ; 2 Gale, 340. 231 ; and Allkins v. Jupe (1877), 2 (m) See Palyart v. Leckie (1817), C. P. D. 375 ; 46 L. J. C. P. 824. 6 M. & S. 290. (/) Lowry v. Bourdieu (1780), (») (1885), 28 Ch. D. 409; 54 2 Doug. 468 ; Paterson v. Powell L. J. Ch. 478. And see ante, page (1832), 9 Bing. 320 ; L. R. 2 C. P. 122. 214 DEVIATION. steamship, the " Arion," in distress, her machinery having completely broken down. The weather was fine and the sea smooth, so that the crew might easily have been taken off and saved ; but the master of the " Arion," anxious to save his ship and cargo as well as the lives of his crew, agreed to pay the " Olympias " £1,000 to tow the ship into the Texel. Accordingly the " Olympias " took the " Arion " in tow, and, in so deviating from the ordinary course of her voyage, got ashore on the Terschelling Sands, and with her cargo was ultimately lost. It was held that, as it was not reasonably necessary to take the "Arion" to the Texel in order to save the lives of those on board her, this deviation was unjustifiable, and therefore the plaintiff was entitled to recover the value of his cargo from the defendants as owners of the " Olym- pias." Deviation Those in peril on the sea derive a substantial benefit from this to save Me case which rnav be said to have distinctly decided that a deviation is JUStl- t J J fiable. for the purpose of saving life is justifiable, though a deviation merely for the sake of saving property is not. Necessity By deviation is meant a ship's intentional departing from the justifies regular course of her journey, and (in the absence of agreement) it can only be justified by overwhelming necessity, e.g., to get provi- sions, to avoid capture, to repair damage, or, according to the leading case, to save life (o). The reason of the rule is that the assured has no right to substitute a different risk (p). Conse- When a ship deviates unnecessarily, its owners are responsible improper f° r aU l° ss > no matter how arising, that occurs during the devia- deviation. tion (q). But a deviation does not discharge the insurers from liability for previous loss (r). Mere intention to deviate will not vitiate a policy (s). (o) See Urquhart v. Barnard Leduc r. Ward (1888), 20 Q. B. D. (1809), 1 Taunt. 450; Phelps v. 475; 57 L. J. Q. B. 379; and Hill, [1891] 1 Q. B. 605 ; 60 L. J. Glynn v. Margetson, [1893] A. C. Q. B. 382. 351 ; 62 L. J. Q. B. 466. (p) See African Merchants' Co. v. (r) Green v. Young (1702), 2 Ld. British Marine Insurance Co. (1873), Raym. 840. L. R. 8 Ex. 154 ; 42 L. J. Ex. 60. (*) Kewley v. Ryan (1794), 2 H. (q) Davis v. Garrett (1830), 6 Bl. 343 ; Hare v. Travis (1822), 7 Bing. 716; 4M. & R. 540. Seealso B. & C. 14 ; 9 D. & R. 748. DEVIATION. 215 Another implied warranty, the breach of which mil prevent the Seaworthi- insured from recovering on a voyage-policy, is that of seaworthiness. neS3 ' What is warranted is not that the ship will continue, but that it is, at the time of the effecting of the policy, seaworthy (t). The pre- sumption is that a ship is seaworthy, but, if she goes wrong very shortly after sailing, the assured will be called on to show that it was from causes subsequent to the commencement of the voyage (u). A ship is not seaworthy if there is not a competent crew (»'). Sea- Degrees of worthiness, however, is a term of relative import ; and, " where the seawortiLl_ nature of the adventure, and the size and class of vessel to be em- ployed, are known to both parties, the implied warranty of the shipowner cannot be carried further than that he shall do his utmost to make the particular vessel as fit for the voyage as she can possibly be made " (y). There is no warranty of seaworthiness implied in a time-policy (z). In the recent salvage case of "The Glenfruin" (a), Butt, J., said, " I have always understood the result of the cases from Lyon v. Mells (1804), 5 East, 427, to Kopitoff v. Wilson (1876), 1 Q. B. D. 377 ; 45 L. J. Q. B. 436, to be that under his implied warranty of seaworthiness the shipowner contracts not merely that he will do his best to make the ship reasonably fit, but that she shall be reasonably fit for the voyage. Had those cases left any doubt in my mind it would have been set at rest by the observations of some of the peers in the case of Steel v. State Line Steamship Co. (1877), 3 App. Cas. 72 ; 37 L. T. 333." Salvage is the compensation which owners must make to those Salvage, who by skill, enterprise and risk(fr), have rescued their property from impending perils of the sea, or from the power of an enemy (c). The Court of Admiralty has jurisdiction over all claims to salvage. But cases below a certain amount and of inferior importance may be tried by county court judges or justices of the peace (d). There is no hard-and-fast rule as to the proportion of the saved property which will be awarded to the salvors, which depends upon (t) Dixon v. Sadler (1839), 5 M. App. Cas. 284 ; 46 L. J. Q. B. & W. 405 ; 8M.&W. 895. 409. (u) Watson v. Clark (1813), 1 («) (18S5), 10 P. D. 103, at Dow, 336. p. 108 ; 54 L. J. P. 49. (z) Clifford v. Hunter (1827), (b) See Aitchison v. Lohre (1879), M. & M. 103 ; 3 C. & P. 16. 4 App. Ca. 755 ; 49 L. J. Q. B. 123. (y) Add. Contr. (8th ed.), 682 ; (c) The principal statutes on the and see Burges v. Wickham (1863), subject are (as to civil salvage) 17 33 L. J. Q. B. 17 ; 3 B. & S. 669 ; & 18 Vict. c. 104, and (as to mili- Clapham v. Langton (1864), 34 tary salvage) 27 & 28 Vict. c. 25 L. J. Q. B. 46 ; 10 L. T. S75. (The Naval Prize Act, 1864). (2) Gibson v. Small (1853), 4 (d) See, as to jurisdiction of jus- H. L. Ca. 353; 17 Jur. 1131; tices, the case of The Mac (1882), Dudgeon v. Pembroke (1877), 2 51 L. J. P. D. & A. 81. 216 DEVIATION. Amount payable. Pilots and passengers. Miscon- duct of salvors. the nature of the services rendered {<■). If the salvors have entered into an agreement with the owners as to the amount to be paid, they must bo content to claim under that agreement, which will generally be enforced, although a hard bargain for the rescued (/). Passengers and crew are not generally entitled to salvage. Nor are pilots. Exceptional circumstances and services, however, may make a difference. " In order to entitle a pilot to salvage reward," said Brett, L. J., in the case of Akerblom v. Price (g), " he must not onlv show that the ship was in some sense in distress, but that she was in such distress as to be in danger of being lost, and such as to call upon him to run such unusual danger, or incur such unusual responsibility, or exercise such unusual skill, or perform such an unusual kind of service, as to make it unfair and unjust that he should be paid otherwise than upon tbe terms of salvage reward." Wilful or criminal misconduct of salvors may work an entire forfeiture of salvage ; and mere misconduct not criminal {e.g., violent and overbearing conduct) will operate to induce the Court to diminish the amount payable (h). It is to be observed that, to found an action for salvage, it is essential that something more than human life should be saved. If no property is saved tbere can be no action, for there is no personal liability to pay salvage, and the claim can only attach to the pro- perty saved (■/). In a most meritorious case of salvage, where a steamship which had got aground on the shore of the Eed Sea, ninety-five miles from Suez, in such a position that without help she must before many hours had elapsed have been lost with all hands on board her, was towed off the shore and to within a few miles of Suez by another steamship, the Court, on a value of 62,000/., awarded the salvors 6,000/. (k). In the Sunniside (I), it was held that in an action of salvage evidence of the loss of earnings by, and of the cost of repairing damage done to, the salving vessel in consequence of rendering salvage services is admissible. But these sums are to be regarded as elements for consideration in estimating the amount of the (e) The Erato (1888), 13 P. D. 163; 57 L. J. P. 107. (/) See, however, the recent case of The Mark Lane (1890), 15 P. D. 135; 63 L. T. 468, where the Court treated the agreement as inoperative, as having been made under compulsion. And see The Eialto,[1891]P. 175; 60L.J.P.71. {g) (1881), 7 Q. B. D. 129; 50 L. J. Q. B. 629. (h) The Marie (1882), 7 P. D. 203 ; 5 Asp. M. C. 27. (i) The Renpor (1883), 8 P. D. 115 ; 52 L. J. P. 49 ; The Annie (1887), 12 P. D. 50 ; 56 L. J. P. 70. (/,:) The Lancaster (1883), 9 P. D. 14 ; 49 L. T. 705. (1) (1883), 8 P. D. 137; 52 L.J. P. 76. AVERAGE. 217 salvage award, and are not to be considered as fixed amounts to be awarded to the salvors. See also the cases of The Livietta (1883), 8 P. D. 24 ; 5 Asp. M. C. 132 ; The Yan Yean (1882), 8 P. D. 147 ; 52 L. J. P. 67 ; and The Cheerful (where the rescuing vessel had done a great deal of work, but not much good) (1886), 11 P. D. 3 ; 55 L. J. P. 5. Salvage may be granted to the commander and crew of a Queen's ship, on the ground that they have rendered services in excess of their public duty, and thereby deserved remuneration (m). Where, in pursuance of an agreement, a vessel towed a disabled ship towards port, but was compelled to leave her in a more dangerous position than before, whence she was afterwards rescued by another vessel, it was held that the former vessel was entitled to remuneration in respect of the work done, although not to salvage (ri). Average. WHITECROSS WIRE CO. v. SAYILL. (1882) [69.] [8 Q. B. D. 653; 51 L. J. Q. B. 426.] The defendants were the owners of a ship called the " Himalaya," which in October, 1876, sailed from London for New Zealand with (amongst other things) some fencing wire of the plaintiffs' on board. Whilst lying at her port of destination, and before she had discharged all her cargo, a fire broke out in the hold, and ship and cargo were in imminent danger of destruction. Rising to the occasion, the master had a quantity of water poured into the hold upon the wire, and so the fire was put out and the ship saved. This was an action to recover a contribution by way of general average for the damage thus deliberately in- (m) Cargo ex Ulysses (1888), 13 (») The Benlarig(1889), 14 P. D. P.D. 205; 58 L. J. P. 11. 3; 58 L. J. P. 24. 218 AVERAGE. Principle of general Only mer- chandise liable. Salvation of ship necessary. Masts and sails. Incidental expenses. flicted on the wire, and it was held that the claim was well founded. It is sometimes essential to the safety of a ship and the success of the adventure to throw things overboard; — in technical language, to jettison them. The sacrifice being for everybody's benefit, it would obviously be unjust that the whole loss should fall on the owner whose goods were selected. The loss, therefore, is rateably adjusted between all the owners; and this adjustment is called general average {<>). Only merchandise, however, is liable to contribution ; therefore not passengers' wearing apparel, nor provisions, nor convicts (^*). Moreover, it is essential to the liability to pay a general average contribution that the ship should have been saved, and that tho sacrifice should have materially conduced thereto ; or, as Lord Tenterden has well put it, that the jettison should be " the effect of danger and the cause of safety.'''' The part of the cargo thrown overboard must also have been properly laden, e. g. (unless war- ranted by usage), not on deck (q). Masts and sails destroyed in consequence of having to carry an unusual press of sail (e.g., as in Covington v. Eoberts(r), to escape from a French privateer) are not subjects of general average; but if they have been deliberately cut away for the sake of saving the ship, they are (s). Incidental expenses may also be claimed. For instance, when a ship goes into port in consequence of an injury to her which is itself the subject of general average, the expenses of warehousing and reloading goods necessarily unloaded for the pur- pose of repairing the injury, and expenses incurred for pilotage and other charges on the vessel leaving the port, are also the subject of general average (t). The law on this subject was exhaustively considered in the recent case of Svendsen v. Wallace (m) before the House of Lords. A ship (o) For an exhaustive history of the law of general average, see the judgment of Watkin Williams, J., in Pirie v. Middle Dock Co. (1881), 43 L. T. 426. {p) Brown v. Stapyleton (1827), 4 Bing. 119; 12 Moore, 334. See also Royal Mail Steam Packet Co. v. English Bank of Rio de Janeiro (1887), 19 Q. B. D. 362; 57 L. J. Q. B. 31. (?) Gould v. Oliver (1837), 4 Bing. N. C. 134; 5 Scott, 445; and see Wright v. Marwood (1881), 7 Q. B. D. 62; 50 L. J. Q. B. 643. if) (1806), 2 B. & P. N. R. 378. (s) Birkley v. Presgrave (1801), 1 East, 220. (t) Atwood v. Sellar (1880), 5 Q. B. D. 286 ; 49 L. J. Q. B. 515 ; Plummer v. Wildman (1815), 3 M. & S. 482 ; Power v. Whitmore (1815), 4 M. & S. 141. See, too, Anderson v. Ocean Steamship Co. (1884), lOApp. Ca. 107; 54 L. J. Q. B. 192. («) (1885), 10 App. Ca. 404 ; 54 L. J. Q. B. 497 ; and see Rose v. Bank of Australasia, [1894] A. C. 687; 63 L. J. Q. B. 504. AVERAGE. 219 on a voyage (from Eangoon to Liverpool) having sprung a dangerous leak, the captaiu, acting justifiably for the safety of the whole adventure, put into a port of refuge to repair. In port the cargo was reasonably, and with a view to the common safety of ship, cargo, and freight, landed in order to repair the ship. The ship was repaired, the cargo reloaded, and the voyage completed. In an action by the shipowners against the cargo owners, it was held that the latter were not chargeable with a general average contribu- tion in respect of the expenses of re -shifting the cargo. It is to be observed that a person who has been compelled to pay Eemedy a general average contribution will generally have his remedy over over * against the underwriters, so that they are often really the interested parties in questions of general average. Particular average is " a very incorrect expression used to denote Particular every kind of partial loss or damage happening either to the ship or avera S e - cargo from any cause whatever " (x). Such a loss rests where it falls. The ordinary form of policy on goods contains the following " memorandum " intended to protect the underwriter from liability for partial losses which might be claimed in respect of certain perishable commodities : — " N.B. Corn, fish, salt, fruit, flour, and seed are warranted Thememo- free from average, unless general, or the ship be stranded. Sugar, ran um * tobacco, hemp, flax, hides, and skins, are warranted free from average under ol. per cent., and all other goods, also the ship and freight, are warranted free from average under 31. per cent., unless general, or the ship be stranded' 1 '' (y). The underwriter, then, agrees to be liable if the ship is "stranded." There has been much litigation on the question, What is a " strand- ing " ? The leading case on the point is Wells v. Ilopwood (z), where Lord Tenterden said that a vessel's taking the ground " under any extraordinary circumstances of time or place, by means of some unusual or accidental occurrence," will constitute a strand- ing. But it will not be a stranding if she takes the ground in the ordinary course of navigation («). Thus, in the case of Letchford v. Oldham (V), where it appeared that the paddles of steamers leaving a harbour at low tide had caused an elevation and a hole, into which the vessel had pitched, it was held that there was no strand- (x) Abbott on Shipping (12th (a) KingsforoU. Marshall (1832), ed.), p. 497. 8 Bing. 458 ; 1 M. & Scott, 657 ; (?/) See Price v. Al Ships Assoc. Hearne v. Edmunds (181'J), IB. & (1889), 22 Q. B. D. 580 ; 58 L. J. B. 388. Q. B. 209; The Alsace Lorraine, (4) (1880), 5 Q. B. D. 538; 49 [1893] P. 209 ; 62 L J. P. 107. L. J. Q. B. 458. (z) (1832), 3 B. & Ad. 20. 220 SUING ON QUANTUM MERUIT. ing. Tho striking on a rock is not a stranding unless the vessel thereby becomes stationar} 7 (c). If there is a stranding the policy applies, though the loss was not really caused by it (/) (1866), L. R. 2 Ex. 1 ; 36 L. J. Ex. 1. (;) (1863), 2 H. & C. 121 ; 8 L. T. 792. BAILMENTS. 225 might have maintained an action against him. But the plaintiff there did not sue for any such cause of action. He sued, not because his rowing was interfered with, but because the defendant used a boat on the water." Bailments. COGGS t<. BERNARD. (1704) [73.] [2 Ld. Eatm. 909; Salk. 26.] Coggs required several hogsheads of brandy to be moved 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 much of the liquor was lost. Coggs was not pleased ; and, as he successfully maintained an action against Bernard for damages, probably that gentleman never again volunteered rash acts of friendship. WILSON v. BRETT. (1843) [73.] [11 M. & W. 113; 12 L. J. Ex. 264.] A person who rides a horse gratuitously at the owner's request for the purpose of showing him for sale is bound, in so doing, to use such skill as he actually possesses. " The defendant," said Parke, B., " was shown to be a person conversant with horses, and was therefore bound to use such skill as a person conversant with horses might s. — c. Q 226 BAILMENTS. Definition. Lord Holt's division. Our division The missing overcoat reasonably be expected to use : if lie did not, he was guilty of negligence." Coggs v. Bernard is the great case on bailments. A bailment is a delivery of a tbing in trust for some special case, tbe 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 : — depositum, manda- tum, commodatum, vadium, locatio rei and locatio opjeris 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. 1. Under the first head come depositum and mundatum. Depositum. Depositum — the delivery of goods to be taken care of for the bailor without the bailee receiving anything for his trouble; e.g., going away from home to the sea-side, I ask my friend Brown to take care of my plate. In the recent case of Ultzen v. Nicols (a), the plaintiff went into the defendant's restaurant for the purpose of dining ; and his overcoat was received by the waiter at a table and, without any directions, hung up on a peg in the room. "When the plaintiff rose to leave his overcoat was gone. It was held that the jury were, on these facts, justified in finding that there was a bail- ment and such negligence as rendered the defendant liable. The depositary (unless he has spontaneously offered to take care of the goods) is responsible only for gross negligence. But, having been grossly negligent, he cannot defend himself by showing that he has lost his own things ivith the bailor 's(o). The bailor must exercise a certain amount of vigilance in the selec- tion of his bailee. If I were to entrust my watch to an idiot, or a Httle girl, to take care of, no amount of negbgence on their part would give me a right of action against them. I must bear the consequences of my folly, and be more sensible next time. So, in Howard v. Harris (c), where a manuscript play was sent unsolicited to a theatrical manager, and lost by him, it was held that the reci- pient bailee was only Hable for wilful negbgence, and not for mere carelessness. As a rule, the depositary may not make use of the thing deposited. But, if no harm would come thereby, he may : and, if I " deposit" my horse with a man, he not only may but ought to give it proper exercise. Vigilance of bailor. («) [1894] 1 Q. B. 92 ; 63 L. J. Q. B. 289. (b) Doorman v. Jenkins (1834), 2 Ad. & E. 258; 4 N. & M. 170; and see Giblin v.McMullen (18G8), L. R. 2 P. C. 317 ; 38 L. J. P. C. 25 (c) (1884), 1 C. & E. 253. BAILMENTS. 227 The depositary must give up the thing deposited to the owner, even though a stranger, on demand (arte Crawcour (1878), 9 Shenstone V. Hilton, [1894] 2 Q. B. Ch. Div. 420 ; 47 L. J. Bk. 94. 452 ; 63 L. J. Q. B. 584. And see Beckett v. Tower Assets (d) [1893] 2 Q. B. 318; 62 L.J. Co., [1891] 1 Q. B. 638; 60 L. J. Q. B. 591. Q. B. 493; Madell v. Thomas, (e) See Searle v. Laverick (1874), [1891] 1 Q. B. 230; 60 L. J. Q. B. L.R. 9 Q. B. 122; 43 L. J. Q. B.43. 227. (/) Leek v. Maestaer (1807), 1 (c) [1895] A. C. 471 ; 64 L. J. Camp. 138 ; and see Thomas v. Ch. 465 : reversing the decision of Day (1803), 4 Esp. 262 ; TheMoor- the Court of Appeal, [1894] 2 cock (1889), 14 P. D. 64; 58 L.J. P. Q. B. 577; 63 L. J. Q. B. 577. 73; and The Calliope, [1891] A. C. The decision in Payne v. Wil- 11; 60 L. J. P. 28. 232 BAILMENTS. Agister. Trover. Vitupera- tive epithets. they are accidentally destroyed) he takes upon himself the risks of so doing (g). An agister (e.g., a person who takes in horses or cattle to feed in his pasture) is not an insurer, but must use reasonable care (h). For instance, if he leaves the gates of his field open, or his fences are out of order, he will be liable for loss happening thereby (/). So, if he has not taken proper precautions to prevent mischief, he will be liable for an injury inflicted by another animal (/.-). In the absence of agreement, an agister has no Hen (I). In Clarke v. Earnshaw (m) the plaintiff had delivered a timepiece to the defendant, a watchmaker, to be repaired. The watchmaker had locked it up in a drawer in his shop, from which it was stolen by a youth who used to sleep in the shop for the express purpose of protecting the property. The defendant was held liable because it appeared that he had put other watches in a more secure place. As to the right to maintain trover in these bailments, it may bo 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 possession. But in the other kinds of bailment either bailor or bailee may sue, but the recovery of damages by either would generally deprive the other of his right of action. The recent case of Claridge v. South Staffordshire Tramway Co. (n) is instructive on this subject. There, the owner of a horse delivered it to the plaintiff, an auctioneer, for sale, with liberty to use it until sold. Whilst the horse was being driven by the plaintiff's servant in the plaintiff's carriage, it was frightened by a steam tramcar of the defendants', and fell, with the result that both horse and carriage were injured. The accident was wholly due to the defendants' negligence. It was held that the plaintiff could only recover damages for the injury to his carriage, and not for the injury to the horse, because, in the absence of negligence, he was under no liability to his bailor for any depreciation in the horse. The terms " gross negligence," " ordinary negligence," &c, have been freely used in speaking of these bailments. Many eminent lawyers, however, maintain that there are really no degrees of negligence, and that, as Eolfe, B., said in Wilson v. Brett, negli- (g) Lilley v. Doubleday (1881), 7 Q. B. D. 510 ; 51 L. J. Q. B. 310. [h) Broadwater v. Bolt (1817), Holt, 547 ; Seton v. Lafone (1887), 19 Q. B. D. 68 ; 56 L. J. Q. B. 164. (i) Groucott v. Williams (1863), 32 L. J. Q. B. 237 ; 8 L. T. 458. (k) Smith v. Cook (1875), 1 Q. B. D. 79 ; 45 L. J. Q. B. 122. (I) Jackson v. Cummins (1839), 5 M. & W. 342 ; and Richards v. Symons (1845), 8 Q. B. 90; 15 L. J. Q. B. 35. (m) (1818), Gow, 30. (») [1892] 1 Q. B. 422; 61 L.J. Q. B. 503. INNKEEPERS. 233 gence and gross negligence are " the same thing, with the addition of a vituperative epithet." Liability of Innkeepers. CALYE'S CASE. (1584) [74.] [8 Coke, 33 ; Ees. 5.] A traveller arriving at an inn dismounted from his horse, and told the landlord to send it out to pasture. The landlord, accordingly, did so ; hut, when its master wished to resume his journey, it was nowhere to he 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 Common had its origin in their readiness to collude with highwaymen, often J^T ^ a " their best customers. That liability was at common law very great. They were not indeed responsible for losses arising by the act of God or the king's enemies, but they were responsible for all other losses, unless they could make out clearly that it was the guest's own fault. In 1863, however, the liability of innkeepers was greatly Act of restricted, and by the Act then passed (o), an innkeeper is never 186; ^- bound to pay more than 30/. for loss of or injury to property brought to his inn, except in the following cases : — 1. Where the article which has been lost or injured is "a horse, Horse or or other live animal, or any gear appertaining thereto, or any carna o e - carriage." 2. Where the property has been stolen, lost, or injured through "Wilful the wilful act, default, or neglect of the innkeeper, or of one of his ? ct ',^ e " x fault or servants. neglect." 3. Where the property has been expressly deposited with him for Deposit, safe custody. The innkeeper, however, may require, as a condition (o) 26 & 27 Vict. c. 41. 234 INNKEEPERS. of his liability, that the guest shall fasten and seal up his property in a box or other receptacle. Posting up But the innkeeper is not to be entitled to the benefit of this Act sect. 1. unless he puts up a copy of section 1, printed in plain type, in a conspicuous part of his entrance-hall, and he had better take care not to omit material parts of the section, or play other pranks with the Act, for the Courts have shown clearly that they will not allow innkeepers to tritie with it. The landlord of the " Old Ship " at Brighton posted up what purported to be a copy of section 1. But through some mistake the word "act" was left out, so that the sentence ran "wilful default or neglect" instead of "wilful act, default, or neglect." A gentleman staying at the hotel in November, 1875, had his watch and things stolen during the night, and went to law with the landlord to recover their value. The defendant paid 307. into Court, but said that the Act protected him against any further claim. But it was held that, as he had not posted up a correct copy of section 1, he was not entitled to the benefit of the Act (/>). " "We have an omission," said Cockburn, C. J., " which is far beyond a mere clerical error. It is an omission of a substantial part of the notice. When we have an omission of a material and really substantial part of the notice required by statute, I cannot think it a copy sufficient to satisfy the requirements of the Act." It may be mentioned that it has been held at nisi prius (in a case from Byde, where the real question appears to have been whether the chambermaid's allowing a stranger to go upstairs to wash his hands without accompanying him was an act of negligence) that the ivord " toilful " in the first section applies only to the folloiving word "act," and not to the next following words, "default or neglect" (q). Supposing the innkeeper not to have complied with the conditions of this Act, his liability remains the same as at common law, almost his only defence being to show that his guest has been negligent. The question of the guest's negHgence must in all cases depend upon the surrounding circumstances (r). If he has not used the ordinary care which may reasonably be expected from a prudent man, he cannot make the innkeeper responsible for the loss of his goods. In Armistead v. Wilde (s), for instance, there had been an ostenta- tious display of bank notes, with a good deal of bragging, and the guest had let everybody see that he put the notes in an ill-secured box. "These facts," said Lord Campbell, C. J., "might or might not amount to negligence, but they were evidence of it ; and it was (p) Spice v. Bacon (1877), 2 Ex. (r) Per Lopes, J., in Herbert v. Div. 463 ; 46 L. J. Q. B. 713. Markwell (1S82), 45 L. T. 649. (?) Squire v. Wheeler (1867), 16 (s) (1851), 17 Q. B. 261 ; 20 L. L. T. 93. J. Q,. B. 524. INNKEEPERS. 235 a fair question for tlio jury." The omission by the guest to leave valuable articles with the innkeeper, or to fasten his bedroom door at night, is not necessarily negligence (t). It may or may not be according to the circumstances. What 'would be prudent in a small hotel in a small town might be the extreme of imprudence at a large hotel in a city like Bristol, where probably 300 bedrooms are occupied by people of all sorts (u). See also the cases of Cashill v. Wright (watch and money stolen from bedroom) (1856), 6 E. & B. 891 ; 2 Jui-. N. S. 1072 ; and Burgess v. Clements (1815) (jewellery stolen from private room left unlocked at an Oxford inn), 4 M. & S. 306; 1 Stark. 251. If a guest refuses to pay the reckoning, the landlord has a lien on Inn- the luggage and belongings which he brought to the inn, whether |^ ee P er s they are the man's own or not (a;). Thus, in the recent case of Bobins v. Gray(y), a commercial traveller who travelled for the plaintiffs, went in the course of their business to stay as a guest at the defendant's inn. While he was there the plaintiffs sent to him certain parcels of goods for sale in the district, which goods the defendant at the time they were received into the inn knew to be the goods of the plaintiffs, and not of the traveller. Subsequently, the traveller failed to pay for his board and lodging in the inn. The Court held that the defendant had a lien upon the goods in respect of the debt. If the bill is not settled in six weeks, the land- lord may sell the goods, handing back any surplus there may be (z). He is required to advertise the sale a month beforehand in a London and local newspaper. In the recent case of Angus v. McLachlan (a), it was held that an innkeeper who accepts security from his guest for the payment of his charges does not therein waive his lien. " As I understand the law," said Kay, J., " it is not the mere taking of a security which destroys the Hen, but there must be something in the facts of the case, or in the nature of the security taken, which is inconsistent with the existence of the lien, and which is destructive of it. In this case the lien is within the provisions of 41 & 42 Vict. c. 38, by virtue of which the innkeeper not only has a passive Hen, but also the active right to sell the goods upon giving the notice required by the Act. Is it probable that he would have given up (t) Morgan v. Ravey (1861), 6 Gordon v. Silber (1890), 25 Q. B. D H. & N. 265 ; 30 L. J. Ex. 131. 491 ; 59 L. J. Q. B. 507. [u) Per Montagu Smith, J., in (t/) [1895] 2 Q. B. 78 ; 64 L. J. Oppenheim v. White Lion Co. Q. B. 591. Affirmed by the Court (1871), L. R. G C. P. 515 ; 40 L. J. of Appeal, [1895] 2 Q. B. 501. C. P. 93. (z) 41 & 42 Vict. c. 38. (*) Threfall r. Bowiek (1875), (a) (1883), 23 Ch. Div. 330 ; 52 L. R. 10 Q. B. 210 ; 41 L. J. Q. B. L. J. Ch. 587 ; and sec Cowell v. 87 ; and see Broadwood v. Granaru Simpson (1809), 16 Ves. 270 (1854), 10 Ex. 417; 24 L.J. Ex.1; 236 INNKEEPERS. Sending horse to pasture without authority. Definition of inn. this active lion ? There is nothing in the case incon- sistent with the continuance of the lien which the plaintiff un- doubtedly had before the security was given." It was also held in this case that an innkeeper keeping his guest's goods under his lien need not use more care about their custody than he uses as to his own things of a similar kind. An innkeeper may not detain the person of his guests for non-payment of his bill. 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, put a guest's gig into the adjoining street without saying a word to hirn 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 as part of the inn (b). An action for the loss of goods at an hotel must be brought against the person really carrying on the business, not against a paid manager, although the justices' licence may have been granted in his name (c). An inn has been defined as " a house where the traveller is fur- nished with everything he has occasion for while on his way " (d). A coffee-house where there are beds may be such a place ; but not a lodging or boarding-house : and it has lately been decided, in a case where a man had insisted on entering accompanied by an offensive dog, that a refreshment bar attached to an hotel, under the same roof, but with a separate entrance, is not (e). Any traveller (not being a thief or prostitute, or constable on duty, or having a contagious disease, or being some other essentially objectionable person) who is ready to pay for his 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 may be indicted (/). The mere purchase of temporary refreshment, or the putting up of his horse, makes a man a guest, so as to raise the innkeeper's respon- sibility (g) . But it has been held that a temporary waiter at a ball given at an inn is not a guest, and cannot recover from the landlord {b) Jones v. Tyler (1834), 1 Ad. & E. 522 ; 3 N. & M. 576. (c) Dixon v. Birch (1873), L. R. 8 Ex. 135 ; 42 L. J. Ex. 135. (d) Thompson v. Lacy (1820), 3 B. & Aid. 283, where it was con- tended that the defendant's esta- blishment was not an inn, because it was not frequented by stage coaches and waggons from the country, and had no stables. (e) R. v. Rymer (1877), 2 Q. B. D. 136; 46 L. J. M. C. 108. (/) Fell v. Knight (1841), 8 M. & W. 269 ; 5 Jur. 554 ; R. v. Ivens (1835), 7 C. &P. 213. (-7) Bennett v. Mellor (1793), 5 T. R. 274 ; York v. Grindstone (1705), 1 Salk. 388. "PROPER VICE:' 237 the value of an overcoat heartlessly stolen -whilst he is discharging his important duties (h). As to the effect of a notice in a bedroom of an inn that ' ' articles Notices in of value, if not kept under lock, should be deposited with the e room ' manager, who will give a res2)onsible receipt for the same," refer- ence should be made to the recent case of Huntly v. Bedford Hotel Co. (*), where it was held that this notice did not constitute a special bargain with a guest that the landlord would be responsible if jewels were kept under lock. In the recent case of Strauss v. The County Hotel Co. (k), the Strauss' s plaintiff had arrived at Carlisle and given his luggage to the hotel cas ' porter with a view to staying at the hotel, when an important telegram induced him to alter his intentions. He told the porter to lock up the luggage, which was done ; but afterwards some of the property was found to be missing. It was held that at the time of the loss of the plaintiff's goods there was no evidence of the relation of landlord and guest, and therefore that the defen- dants were not responsible. The liability of an innkeeper continues during the temporary absence of his guest (?) ; but if a host invites one to supper, and, the night being far spent, invites him to stay all night, if he is afterwards robbed, yet shall not the host be charged (as an innkeeper), for this guest was no traveller (m). As to who is a " guest," and as to the onus of proof in actions Medawar's against innkeepers for the loss of their guests' property, reference should be made to the recent important case of Medawar v. Grand Hotel Co., [1891] 2 Q. B. 11 ; GO L. J. Q. B. 209. case. ; ' Proper Vice" BLOWER v. GREAT WESTERN RAILWAY CO. [75.] (1872) [L. B. 7 C. P. 655 ; 41 L. J. C. P. 268.] 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 satis- (h) Carters. Hobbs, 12 Mich. 52. (1) Day v. Bather (1863), 2 H. & (i) (1892) 56 J. P. 53. C. 14 ; 32 L. J. Ex. 171. (k) (1883), 12 Q. B. D. 27 ; 53 (m) Bac. Abr. Inns. c. 5. L. J. Q. B. 25. 238 "PROPER VICE." faction in one of the Great Western Railway Company's trucks, but on the journey it managed to escape, and got 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 " inherent vice " of the subject of bailment. Third Tho effect of this case is practically to introduce a third excep- exception. ^ on ^ Q ^ e 1T j e ^at comnion carriers are insurers. They are to be excused not only when the loss has been occasioned by the act of God or the king's enemies, but also if it has happened through the inherent defect of the thing carried. The leading case was followed in Nugent v. Smith (h), where a horse, while being conveyed by sea from London to Aberdeen, received fatal injuries through getting frightened at a storm. So, too, a common carrier is not responsible for the deterioration of perishable articles, or for the evaporation or leakage of liquids. But in all such cases the carrier will be Uable for his negligence. About ten years ago a man sent a cow by train from Doncaster to Sheffield. When it got to Sheffield a porter rather unadvisedly released it, and it ran into a tunnel and was killed. The restive- ness and stupidity of the cow was undoubtedly the real cause of its death, but the porter ought not to have been in such a hurry to let it out ; and on this latter ground his masters were held respon- sible (o). A carrier, again, will not be responsible for injury happening through the improper packing of the subject of bailment ; at all events, if he was not aware that it was packed improperly. Thus it has been held that a railway company cannot be charged with negligence if a greyhound escapes through the insufficiency of a chain and collar supplied by the owner and appearing to be good enough (p). Dangerous A person who delivers a dangerous substance to a common carrier goods. -without giving him any information about it is responsible for all the evil consequences arising therefrom (g). It has been expressly Perishable articles. Gill's case. Bad pack- ing. In) (1876), 1 C. P. D. 423; 45 L. J. C. P. 697. (o) Gill v. M. S. & L. By. Co. (1873), L. R. 8 Q. B. 186 ; 42 L. J. Q. B. 89 ; see also Hudson v. Baxendale (1857), 2 H. & N. 575; 27 L. J. Ex. 93. (p) Richardson v. N. E. Ry. Co. (1872), L. R. 7 C. P. 75; 41 L. J. C. P. 60. (?) Farrant v. Barnes (1862), 11 C. B. N. S. 553 ; 31 L. J. C. P. 1 37, which was the case of a carboy of nitric acid bursting while being carried from London to Croydon and injuring the plaintiff ; and see Brass v. Maitland (1856), 6 E. & B. 470; 26 L.J. Q. B. 49. SPECIAL CONTRACTS WITH CARRIERS. 239 provided by Act of Parliament (r) that a carrier is not bound to receive such things. But a carrier cannot refuse to carry a parcel merely on the ground that he is not informed of its contents (s). It is to be observed that common carriers are not necessarily Common general earners. To ascertain the nature and extent of a carrier's cai ' riers ° ... not general business reference must be made to his public professions and carriers. representations (t). A common carrier is bound at common law to receive and cany all goods reasonably offered to him, and for the carrying of which the person bringing the goods is ready to pay (u). In the absence of a special contract, he must deliver within a time that is reason- able, regard being had to all the circumstances (cc). Provided he carry by a reasonable route, he is not bound to carry by the shortest, even though empowered by statute to charge a mileage rate for carriage (//). Special Contracts with Carriers. — ♦ — PEEK v. NORTH STAFFORDSHIRE RAILWAY [76.] CO. (1863) [10 II. L. C. 443 ; 32 L. J. Q. B. 241.] Mr. Peek, of Stoke-upon-Trent, wanted to send some niarble 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 Pailway Company. The agent said the company would not he 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 (/•) 29 & 30 Vict. c. 69. (u) Pickford v. Grand Junct. Ry. (s) Crouch v. L. & N. W. Ry. Co. (1841), 8 M. & W. 372. Co. (1854), 14 C. B. 255; 23 L. J. (x) Taylor v. G-. N. Ry. Co. C. P. 73. (I860), L. R. 1 C. P. 385 ; 35 L. J. (t) Johnson v. Midland Ry. Co. C. P. 210. (1849), 4 Exch. 367 ; 18 L. J. Ex. («/) Myers v. L. & S. W. Ry. Co. 366 ; and Oxlade v. N. E. Ry. Co. (1869), L. R. 5 C. P. 1 ; 39 L. J. (1864), 15 C. B. N. S. 680 ; 26 L. J. C. P. 57. C. P. 129. 240 SPECIAL CO NT It ACTS WITH CARRIERS. Public notices. Land Carriers Act. Railway and Canal Traffic Act. Notices by- land and sea carriers. "Just and reason- able." considered too high, and finally he sent a note to the agent requesting him to send the chimney-pieces " not in- sured." The marble received injury on the journey through ex- posure 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 U P notices. If it could be shown that the notice had come to the knowledge of the customer, he was presumed to have 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 (z) ; but the Act reserved the carrier's right to make a special contract with his customer. The courts, however, were in many instances very hard on the customer, holding, for example, that a notice put on the receipt given to a person deliver- ing 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 (a), which still j^ermits the making of special contracts, but provides that no one shall be bound by any such contract with a railway or canal company (1) unless lie (or his agent) has signed it(b), and (2) it is "just and reasonable." 31 & 32 Vict. c. 119, s. 14, however, gives public notices a certain amount of validity in the case of land and sea carriers. The con- dition sought to be enforced must be published in a conspicuous manner in the office where the through booking is effected, and must also be printed in a legible manner on the receipt or freight note given by the company. Whether a condition is " just and reasonable" under sect. 7 of the Railway and Canal Traffic Act is a question for the judge at the (z) 11 Geo. IV. & 1 Will. IV. 68. (a) 17 & 18 Vict. c. 31. (b) But the unsigned contract would be binding on the company. Baxendale v. G. E. By. Co. (1869), L. R. 4 Q. B. 224 ; 38 L. J. Q. B. 137. SPECIAL CONTRACTS WITH CARRIERS. 241 trial, subject, of course, to the review of the divisional and higher courts. A condition which states that the company will not be Conditions responsible for damage to horses, "however caused," is unreasonable held bad. and bad (c). So is one which disclaims responsibility for a parcel insufficiently packed (d). So, too, in the recent case of Ashendon v. L. B. & S. C. Ey. Co. (e) (where an Italian greyhound got lost on its way from Brighton to Rochester), a condition that a railway company would not be liable " in any case" for loss of, or damage to, a horse or dog above certain specified values, unless the value was declared, was held bad. But " if an owner of goods to whom the Alterna- f ull protection of the Railway and Canal Traffic Act is offered on tive rates - reasonable terms, deliberately elects, for the valuable consideration of a substantial reduction in the cost of carriage, to agree to release the carriers from certain liabilities, he cannot escape from the con- tract so entered into, unless he can show that he has been so far overreached in the transaction as to make the agreement void at common law, or that the offer of the alternative is a fraud upon the statute " (/). In the recent case of Brown v. M. S. & L. Ey. Co. (g), The a Grimsby fish merchant, in consideration of getting his fish taken ggj^^. to London at a cheaper rate, signed a contract by which the railway chant's company were to be relieved " from all liability for loss or damage case ' by delay in transit, or from whatever other cause arising." It was held in the House of Lords (reversing the decision of the Court of Appeal) that the contract was reasonable, and relieved the company from liability for loss through delay in transit caused by the negli- gence of their servants. "The question," said Lord Watson, "as to what constitutes a reasonable condition is not a question which judges can decide, as against their successors, by anticipation; it is a question of fact in each case, depending upon the discretion of the judge who is dealing with it, and, according to my view, not of law, and must be judged of according to the circumstances in each case. No doubt there are very many valuable suggestions in the case of Peek v. The North Staffordshire Railway Company. But we are not dealing with a case in its circumstances similar to that, accord- ing to my apprehension of the facts of it, because there it was held (c) M'Manus v. Lane. & Yorks. v. G. W. Ry. Co. (18S9), 18 L. R. Ry. Co. (1859), 4 H. & N. 327 ; 27 Ir. 1 ; and Ruddy v. Midi. G. W. L. J. Ex. 201. Ry. Co. (1880), 8 L. R. Ir. 224. (d) Simons v. G. W. Ry. Co. (y) (1883), 8 App. Cas. 703; 48 (1856), 18 C. B. 805 : 26 L. J. C. L. T. 473 ; and see the recent case P. 25. of Dickson v. G. N. Ry. Co. (1886), (e) (1880), 5 Ex. Div. 190; 42 18 Q. B. D. 176; 50 L. J. Q. B. L. T. 586. Ill, where a notice by a railway (/) Per Fitzgibbon, L. J., in company exempting - themselves M'Nallv v. Lane. & Yorks. Ry. Co. from liability for valuable dogs (1880), 8 L. R. Ir. 81 : McCarthy was held jusi an 1 reasonable. S. — C. K 243 SPECIAL CONTRACTS WITH CARRIERS. Condi- tions held good. Gold- smith's case. Gordon's case. that the company had really proposed to exact a rate so high, not for the honest and land fide purpose of giving an alternative to the trader, but solely with the view of giving no alternative and com- pelling him to adopt one rate practically in preference to another. I cannot see in the present case the least trace of that compulsion. I cannot find anything in the character of this case to suggest to my mind that the condition is unreasonable." " Really," said Lord Brainwell, with characteristic straightforwardness, "it is difficult for me to express the opinion which I entertain upon this question with a sufficient apparent respect for the opinion of those who have thought differently — namely, the learned judges in the court below . . . I must say that I really do think this is aloitt the plainest case that ever came before your Lordships' House." Amongst conditions that have been held to be " just and reason- able," may be mentioned one, that a company shall not be liable for loss of market or other claim arising from delay or detention of any train {li); another, placing the, carriage of such 'perishable goods as fish or fruit under special regulations {i) ; and a third, exempting the company from liability for loss or damage to live stock from suffoca- tion, etc. (/.'). In the recent case of Goldsmith v. The Great Eastern Railway Company (?), clover seed was earned by the defendants " solely at the risk of the sender, with the exception that the company shall be responsible for any wilful act or wilful default of the company." The goods were misdelivered, so that they did not arrive at their proper destination till after a fortnight's delay. It was held that there was nothing in the special contract to free the defendants from their liability as carriers. In another recent case (m), a man delivered some cattle to a railway company to be taken from Waterford to Gloucester, and prepaid the carriage. The clerk, however, stupidly forgot to put "carriage paid" on the consignment note, and the consequence was that delivery was refused at Gloucester till the mistake was rectified, and the cattle had been for some time exposed to the weather. According to the terms of the contract of carriage, the company, in consideration of an alternative reduced rate, were ' ' not to be liable (A) White v. G. W. Ry. Co. (1857), 2 C. B. N. S. 7 ; 26 L. J. C. P. 158. (i) Eeal v. South Devon Ry. Co. (1860), 5 H. & N. 875 ; 29 L. J. Ex. 441. {/:) Pardington v. South Wales Ry. Co. (1856), 1H.&N. 392 ; 26 L. J. Ex. 105. {!) (1881), 44 L. T. 181 ; 29 W. R. 651. See also the recent case of Cutler v. North London Railway (1887), 19 Q. B. D. 64 ; 56 L. J. Q. B. 648. {>») Gordon v. G. W. Ry. Co. (1881), 8 Q. B. D. 44; 51 L. J. Q. B. 58. LAND CARRIERS ACT. 243 in respect of any loss or detention of, or injury to, the said animals, or any of them, in the receiving, forwarding, or delivery thereof, except upon proof that such loss, detention, or inj ury arose from the wilful misconduct of the company or its servants." It was held that the withholding of the cattle under a groundless claim to retain them was not " detention" within the condition, and that the com- pany were therefore liable. The court also were inclined to think that the company had been guilty of " wilful misconduct," but it was unnecessary to decide that point. The still more recent case of Stevens v. Gr. "W. Ry. Co. («), was a Stevens' case of misdelivery of goods consigned at owner's risk rate with case< protection against " wilful misconduct on the part of the company's servants." It was held that the mere misdelivery was not evidence of wilful misconduct, the plaintiff must go further and show how it occurred. The 7th section of the Eailway and Canal Traffic Act has no application to goods left at a railway cloak room (o), nor to contracts by railway companies to carry over other lines ( p) ; but it extends to their sea traffic (q). Land Carriers Act. MORRITT v. NORTH EASTERN RAILWAY CO. [77.] (1876) [1 Q. B. D. 302 ; 45 L. J. Q. B. 289.] Mr. Horritt was a passenger by the defendants' rail- way 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 («) (1885), 52 L. T. 324, distin- C. B. N. S. 75. guishing Hoare v. G. ~W. Ry. Co. {p) Zunz v. >S. E. Ry. Co. (1869), (1879), 37 L. T. 186 ; 25 W. R. 63. L. R. 4 Q. B. 539 ; 38 L. J. Q. B. For list of conditions which have 209. been held to be reasonable, see (ra ; Kershaw v. Ogden (1865), 3 II. & C. 717 ; 34 L. J. Ex. 159. " Rule 4. When goods are delivered to the buyer on approval or (/) The provision as to notice to in the law, as this was not neccs- the buyer of acts done by the seller sary prior to this Act. to pass the property effects a change 0Q2 CONTRACT OF SALE, on ' sale or return ' or other similar terms, the property therein passes to the buyer : — " (a) When he signifies his approval or acceptance to the seller, or does any other act adopting the transaction. "(b) If he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time. What is a reasonable time is a question of fact." Sec the following illustrations, namely : Ellis v. Mortimer (1805), 1 B. & P. N. E. 257 ; Swain v. Shepherd (1832), 1 M. & Eob. 223 ; Beverley v. Lincoln Gas Co. (1837), G A. & E. 829 ; 2 N. & P. 283; Head v. Tattersall (1871), L. E. 7 Ex. 7 ; 41 L. J. Ex. 4 ; Ex parte White (1879), L. E. G Ch. 397 ; 21 W. E, 465 ; Elphick v. Barnes (1S80), 5 C. P. D. 321 ; 49 L. J. C. P. 698 ; per cur. in Ex parte Wingfield (1879), 10 Ch. D. 591 ; 40 L. T. 15. " Eule 5. — (1.) Where there is a contract for the sale of unascer- tained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods there- upon passes to the buyer. Such assent may be express or implied, and may be given either before or after the appropriation is made. "(2.) Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee or custodier (whether named by the buyer or not) for the purpose of trans- mission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract." Goods are in a " deliverable state " when they are in such a state that the buyer would, under the contract, be bound to take delivery of them. See sect. 62 (4). As to part (1) of this rule, see Eohde v. Thwaites (1827), 6 B. & C. 388; 9 D. & E. 293; Elliot v. Pybus (1834), 10 Bing. 512; 4 M. & S. 389; Wilkins v. Bromhead (1844), 6 M. & G. 9G3; 13 L. J. C. P. 74; Godts v. Eose (1855), 17 C. B. 229; 25 L. J. C. P. 61 ; Jenner v. Smith (1869), L. E, 4 C. P. 270; Borrowman v. Free (1878), 4 Q. B. D. 500 ; 48 L. J. Q. B. 65. As to part (2) of the rule, reference may be made to Dutton v. Solomonson (1803), 3 B. & P. 582; Ogle v. Atkinson (1814), 5 Taunt. 759; 1 Marsh. 323; Fragano v. Long (1825), 4 B. & C. 219; 6 D. & E. 283 ; Dunlop v. Lambert (1839), 6 C. &E. 600; Aldridge v. Johnson (1857), 7 E. & B. 885 ; 26 L. J. Q. B. 296. CONTRACT OF SALE. 263 Sect, 19. " (1.) "Where there is a contract for the sale of specific Reserva- goods, or where goods are subsequently appropriated to the con- right of tract, the seller may, by the terms of the contract or appropriation, disposal, reserve the right of disposal of the goods until certain conditions are fulfilled. In such case, notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailee or custodier for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled. " (2.) "Where goods are shipped, and, by the bill of lading, the goods are deliverable to the order of the seller or his agent, the seller is prima facie deemed to reserve the right of disposal. " (3.) Where the seller of goods draws on the buyer for the price, and transmits the bill of exchange and bill of lading to the buyer together to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honour the bill of exchange, and if he wrongfully retains the bill of lading the property in the goods does not pass to him." The following cases illustrate this section, namely : Jenkyns v. Brown (1849), 19 L. J. Q. B. 286; 14 Q. B. 496; Godts v. Eose (1S55), 25 L. J. C. P. 61 ; 17 C. B. 229; Browne v. Hare (1858), 4 n. & X. 822 ; 29 L. J. Ex. 6; Joyce v. Swan (1864), 17 C. B. N. S. 84; Shepherd v. Harrison (1871), L. E. 5 H. L. 116 ; 40 L. J. Q. B. 148 ; Ex parte Banner (1876), 2 Ch. D. 278 ; 45 L. J. Bk. 73 ; Mirabita v. Imperial Ottoman Bank (187S), 3 Ex. D. 164 ; 47 L. J. Ex. 418 ; Cohen v. Foster (1892), 61 E. J. Q. B. 643 ; 66 L. T. 616. Sect. 20. "Unless otherwise agreed, the goods remain at the Risk^ seller's risk until the property therein is transferred to the buyer, passes with but when the property therein is transferred to the buyer, the goods property. are at the buyer's risk whether delivery has been made or not. " Provided that where delivery has been delayed through the fault of either buyer or seller the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault. "Provided also, that nothing in this section shall affect the duties or liabilities of either seller or buyer as a bailee or custodier of the goods of the other party." As illustrating this section, see Tarling v. Baxter, supra ; Fragano v. Long (1825), 4 B. & 0. 219; 6 D. & E. 283; Alexander v. Gardner (1835), 1 Scott, 281, 630; 1 B. N. C. 671 ; BuU v. Eobison (1854), 10 Ex. 342; 24 L. J. Ex. 165; Castle v. Playford (1870), L. E. 7 Ex. 98; 41 L. J. Ex. 44 ; Martineau v. Kitching (1872), L. E. 7 Q. B. 436 ; 41 L. J. Q. B. 227; Calcutta Co. v. De Mattos (1863), 33 L. J. Q. B. 214. 264 Property without possession. STOPPAGE IN TRANSITU. It is to be noted that, although the property in a chattel may be in the vendee, so as to make the loss fall on him if the thing were to perish, yet he may not be entitled to the possession. Thus, in the case quoted above of Clarke v. Spence, we have seen that the property in the materials passed to the purchaser as the building of the ship proceeded, but the builder, nevertheless, had a right to retain the fabric in order to complete it and earn the rest of the price. So, too, in a ready-money sale the vendor has a lien for the price. But, when goods are sold on credit, and nothing is said as to the time of delivery, the purchaser is entitled to immediate possession, both the right of property and the right of possession vesting in him at once. A learned and exhaustive discussion of the numerous cases illustrating the above principles is contained in "Benjamin on Sale," see 4th edition, p. 277. Stoppage in Transitu. [83.] LICKBARROW v. MASON. (1788) [2 T. B. 63 ; 1 II. Bl. 357 ; 5 T. B. 683.] Freeman of Rotterdam, sent an order to Messrs. Turings, of Middleburg, to ship a quantity of corn to Liverpool. This order Messrs. Tnrings were rash enough to execute : for they then considered Freeman to be, if not " the richest merchant in Rotterdam," at all events, a safe and solvent person. On July 22nd, 1786, Messrs. Turings put the corn on hoard the ship " Endeavour," whereof the master was a Mr. Holmes. It is the duty of a master when he sets out on a voyage like this to sign bills of lading, by way of acknowledging that he has got the goods on board. Holmes signed four of these bills of lading (usually, it may be remarked, only three are signed) ; and of the four one he pocketed, two were endorsed in blank by Turings & Co. and sent to Freeman with an invoice STOPPAGE IN TRANSITU. 265 of tlie goods shipped, and the fourth was retained by Messrs. Turings. The sound ship " Endeavour " had not set sail very long when tidings came to the ears of the Turings that Freeman had become bankrupt. Rising to the occasion, they imme- diately sent off the bill of lading that remained in their custody to Messrs. Mason & Co., of Liverpool, with a special endorsement to deliver the corn to them for Messrs. Turings' benefit. Pursuant to this special indorsement, Mr. Holmes, when he arrived at Liverpool, delivered his cargo to the Masons. In the meantime, however, and before lie became bankrupt, Freeman had sent his two bills of lading to Messrs. Lickbarrow duly negotiated for a valuable consideration. Messrs. Lickbarrow, therefore, were anything but pleased to find that Mason & Co. had got hold of the corn, and they brought this action to try and make them give it up. In this they were successful. Judgment was given for the plaintiffs, on the ground that a bond fide assignment of the bills of lading defeats the vendor's right to stoj) in transitu. The unpaid vendor of goods has a right, on the insolvency of the vendee, to stop the goods and retake possession of them while on their way, and to retain them until payment or tender of the price (•). The vendor may retake the goods, though he holds the consignee's acceptance, and without returning the bill (J). In most stoppage in transitu cases the difficulty is to know whether the journey was at an end or not. The principle to bo (//) Sale of Goods Act, 1893 (56 (k) Newsom v. Thornton (1805), & 57 Vict. c. 71), s. 1 1. 6 East, 17 ; 2 Smith, 207 ; and see (h) Siffken v. Wray (1805), 6 Feise v. Wray (1802), 3 East, 93. East, 371. {I) Edwards v. Brewer (1S37), 2 (i) Bird v. Brown (1850), 4 Ex. M. & W. 375. 786; 19 L. J. Ex. 154. 266 STOPPAGE IN TRANSITU. The tran- situs. Pur- chaser's ship. Lyons v. Hofl'nung. Arrival at interme- diate station. deduced from the cases is that the transitus is not at an end till the goods have reached the place named by the buyer to the seller as the place of their- destination (m), even though the goods be carried in a ship chartered by the buyer (n). If, however, the ship is the buyer's own, the goods cannot generally be taken (o). Eeference should be made to the recent case of Lyons v. Hoffnung (_p), where it was hold that where goods are intended by the purchaser to pass direct from the possession of the vendors into the possession of a carrier, to be carried to a destination contemplated at the time of purchase by both parties, and, though held by the carrier as the purchaser's agent, they are still in transitu till the destination is reached, even although the delivery to the carrier has been made in such sense as to pass the property to the purchaser as owner. " The law appears," said Lord Herschell, "to be very clearly and accurately laid down by the Master of the Eolls in the case of Bethell v. Clark (q). He says, ' When the goods have not been delivered to the purchaser or to any agent of his to hold for him, otherwise than as a carrier, but are still in the hands of the carrier as such, and for the purposes of the transit, then, although such carrier was the purchaser's agent to accept delivery so as to pass the property, nevertheless the goods are in transitu, and may be stopped.' " And, though the goods remain in the hands of the carrier, the transitus may nevertheless be over; as, for instance, where the vendee pays the carrier a rent for warehousing (r), or where he has done something equivalent to taking possession (s), or where " after the arrival of the goods at the appointed destina- tion, the carrier acknowledges to the buyer that he holds the goods on his behalf and continues in possession of them as bailee for the buyer, and it is immaterial that a further destination for the goods may have been indicated by the buyer" (t). The transitus, however, is not determined by the goods arriving at an intermediate (in) Coates v. Railton (1827), 6 B. & C. 427 ; 9D.&E. 593. (n) Berndtson v. Strang (1867), L. R. 3 Ch. 588 ; 37 L. J. Ch. 665 ; Ex parte Rosevear China Clay Co., Re Cock (1879), 11 Ch. D. 560; 48 L. J. Bk. 100; Brindley v. Cilgwyn Slate Co. (1885), 55 L. J. Q. B. 67. See, however, the recent case of Bethell v. Clark (1S88), 20 Q. B. D. 615 ; 57 L. J. Q. B. 302 ; and see sect. 45 (5) of the Sale of Goods Act, 1893. (o) Schotsmans v. Lane, -® ;U ® or of a sub-sale or pledge by the vendee is now regidated by the 47th buyer. section of the Sale of Goods Act, 1893, which is in the following terms, namely : — " Subject to the provisions of this Act, the unpaid seller's right of lien or retention or stoppage in transitu is not affected by any sale, or other disposition of the goods which the buyer may have made unless the seller has assented thereto. " Provided that where a document of title to goods has been lawfully transferred to any person as buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable consideration, then, if such last-mentioned transfer was by way of sale the unpaid seller's right of lien or retention or stoppage in transitu is defeated, and if such last-mentioned transfer was by way of pledge or other dis- position for value, the unpaid seller's right of Hen or retention or stoppage in transitu can only be exercised subject to the rights of the transferee " (/ ). lb) Wentworth v. Outhwaite v. Lane, k Yorks. Ry. Co. (1866), (1842), 10 M. & W. 436 ; 12 L. J. L. R. 1 C. P. 431 ; 35 L. J. C. P. Ex. 172; and see Jones v. Jones 137. (1841), 8 I. & W. 431; 10 L. J. (e) In re Westzinthus (1833), 5 Ex. 481. B. & Ad. 817; 2 N. & M. G44 ; (e) Slubey v. Heyward (1795), 2 Spalding v. Ruding (1843), 6 Beav. H. Bl. 504 ; Crawshay v. Eades 376 ; 12 L. J. Oh. 503 ; but see (1823), 1 B. & C. 181 ; 2 D. & R. Leask v. Scott (1877), 2 Q. B. I). 28S; Kr parte Cooler, In reM-'Laren 376 ; 46 L. J. Q. B. 329. (1879), 11 Ch. D. 68; 48 L. J. (/) This section is fully discussed Bk. 49. Sect. 45 (7) of the Sale of in their " Commentary on the Sale Goods Act, 1893 ; and see per of Goods Act, 1893," by W. C. A. Lord Blackburn, in Kemp v. Falk Ker & Pearson-Gee, pp. 255 — 263. (1882), 7 App. Cas. at p. 586 ; 52 The other sections of this Act deal- L. J. Ch. 167. ing with the subject of stoppage (d) Sect. 45 (4) of the Sale of in transitu, are dealt with at length Goods Act, 1893 ; and see Bolton in that treatise. GOODS PRIVILEGED FROM DISTRESS. 269 The effect of stoppage in transitu is not to rescind the contract, Effect of but to give the vendor a lien on the goods (p. 206. (/) Gorton r. Falkuer (1792), 4 T. R. 565. (m) Hellawell v. Eastwood (1851), 6 Ex. 295; 20 L. J. Ex. 154. {») 2 W. & M. sess. 1, c. 5, s. 3. GOODS PRIVILEGED FROM DISTRESS. 271 owner. This Act of William and Mary, however, did not give the landlord a right to distrain growing corn or crops, but an Act with that object was passed in George the Second's reign. 11 Geo. II. c. 19, ss. 8 and 9, authorizes hirn to seize "all sorts of com and grass, hops, roots, fruits, pulse, or other products whatever, which shall he growing " on any part of the estates demised or holden, " and the same to cut, gather, make, cure, cany, and lay up, when ripe, in the barns, or other proper place" — on the premises, if possible ; if not, as near thereto as practicable. It is to be observed that this statute of George the Second extends only to crops which become " ripe," and which when ripe are " laid up," and that they must not be taken before they are ripe. In Clarke v. Gaskarth(o), it was held that young trees, shrubs, and plants growing in a nursery ground could not be distrained as they were not ejusdem generis with the " products " specified in the 8th section of the Statute of George. Notice of the place where the distress is lodged is to be given to the tenant within a week of the lodgment. The grantee of a rent charge cannot take growing crops under 11 Geo. H. c. 19, but he can take hay or straw loose or in the Btack (p). (3.) Goods delivered to a person in the way of his trade (q). Trade. The ground of this exemption is public policy, which requires that no unnecessary impediments shall be thrown in the way of trade and commerce. But the goods must be on the premises of the person exercising the trade, or they will not be privileged (?'). Thus, if you entrust a horse to an innkeeper, so long as it remains on the inn premises, the innkeeper's landlord cannot touch it ; but if the innkeeper removes it to a friend's stable half a mile off, it is not privileged as against that person's landlord (s). The Agricultural Holdings Act, 1883 (r), on the holdings to which that Act applies, gives absolute protection against distress for rent to " agricultural or other machinery which is the bond fide property of a person other than the tenant, and is on the premises of the tenant under a bond fide agreement with him for the hire or use thereof in the conduct of his business, and live stock of all (o) (1818), 8 Taunt. 431 ; 2 held liable to be distrained by the Moore, 491. shipbuilder's landlord though be- (p) See Johnson v. Faulkner longing- to a third person. (1842), 2 Q. B. 925; 5 G. & D. (/■) Lyons v. Elliott (1876), 1 184; Miller v. Green (1831), 2 Cr. Q. B. J). 210; 45 L. J. Q. B. 159; & J. 143; 8Bing. 92; and 4 Geo. II. and see Tapling v. Weston (1883), c. 28, s. 5. 1 C. & E. 99. (q) See the recent case of Clarke (■•>) Crosier v. Tomkinson (1759), v. Millwall Dock Co. [1886 .17 2 El. Een. 139. Q. B. D. 494 ; 55 L. J. Q. J!. 37s, (/) 46 & 17 Viet. c. 61. where a Bhip while building was 272 GOODS PRIVILEGED FROM DISTRESS. Perishable Wild animals. Goods in custody of law. Ambassa- dors. Lodgers. kinds which is the lond fide property of a person other than the tenant, and is on the premises of the tenant solely for breeding purposes." (4.) ]'( rishable goods cannot (unless by statute) be taken, because they cannot be restored in the same plight, and at common law a distress is a mere pledge. Thus the flesh of animals lately slaughtered cannot be distrained (u). Nor can money unless in a bag, so that the same identical coins may be recovered (.>•). (5.) Animals ft ra naturce ; because no one has any valuable property in them. But animals /eras naturae in a state of confinement and civilization (e.g., dogs, deer in a park, birds in cages, &c.) are distrainable (y). (6.) Guoils in the custody of the law. Thus, goods which have been distrained damage feasant, or taken in execution, are not distrainable (z). But fraudulent and irregular executions will not prevent a distress («), and it has been held that the exemption does not extend to goods in the custody of a messenger under a fiat in bankruptcy (b). Moreover, by 14 & 15 Vict. c. 25, s. 2 (which was passed in order to reverse the law as laid down in Wharton i\ Naylor (c)), growing crops seized and sold by the sheriff under an execution are liable, so long as they remain on the land, to be distrained for the rent which becomes due after the seiziu'e and sale, if there is no other sufficient distress. See also 56 Geo. III. c. 50. (7.) The goods of an ambassador (d). (8.) The goods of a lodger, by virtue of an Act (e) passed in 1871. The object of this Act was to prevent poor persons from having their homes broken up, and their goods and chattels carried off, because other people did not pay what they owed. The Act does not define a " lodger," and the omission has led to a good deal of btigation (/) to which it is not necessary to refer in detail. If the lodger's things have been seized, he must write out a declaration and an inventory, and serve (w) Morley v. Pincombe (1S4S), 2 Ex. 101. (x) 1 Roll. Abr. 667; 2 Bac. Abr. 109. (//) Davies r. Powell (1737), Willes, 4G ; and see Reg:, v. Shickle (1868), L. R. 1 C. C. R. 158; 38 L. J. M. C. 21. (z) Peacock v. Purvis (1820), 2 Bro. & B. 362 ; 5 Moore, 79. (a) Blades v. Arundale (1813), 1 H &S. 711. (4) Briggs v. Sowry (1811), 8 M. & W. 729. (c) (1848), 12 Q. B. 673; 17 L. J. Q. B. 278. (d) 7 Ann. c. 12, s. 3. (e) 34 & 35 Vict. c. 79. (/) See Morton v. Palmer (1SS1), 51 L. J. Q. B. 7 ; 45 L. T. 426 ; Ness v. Stephenson (1882), 9 Q. B. D. 245 ; 47 J. P. 134 ; Heawood v. Bone (18S4), 13 Q. B. D. 179; 51 L. T. 125 ; Phillips v. Henson (1877), 3 C. P. D. 26; 47 L. J. C. P. 273. GOODS PRIVILEGED FROM DISTRESS. 273 the landlord with, the document. If he does that in the proper way, complying faithfully with the requirements of the Act, he will get his things back. See, however, Thwaites v. "Wilding () ; and beasts of the plough may be distrained if the only other subject of distress is growing crops (q). Moreover, beasts of the plough can be dis- trained for poor-rates, whether there are other things on the premises or not (r). The 45th section of the Agricultural Holdings Act, 1883 (s), pro- tects the live stock of a third person brought on to a holding to which the Act applies to be fed at a fan- price, provided that there is other sufficient distress which can be taken. The " fair price" need not be in money. In the London and Yorkshire Bank v. Belton (t) cows were agisted on the terms " milk for meat," — i. e., that the agister should take their milk in exchange for their pasturage — and it was held that the agistment was within the Act. " The question is," said Lord Coleridge, C. J., " what is the mean- ing of the words ' fair price.' Putting aside pedantic and scholastic refinements and derivations, ' price ' in ordinary colloquial language does not always mean money, and ' fair price ' does not always mean ' coin of the realm.' "We say that a man got something and paid a fair price for it without meaning that he paid so many pounds, shillings and pence, but meaning only that he paid a fair equivalent, for what be got." " I cannot gather from the section," said Mathew, J., "the slightest hint of an intention in the legisla- ture to confine the provision to cases where contracts of agistment shall be for money and money only." 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 a trespasser ab initio in respect of that part only («). Double the value of goods distrained and sold (m) Gorton v. Falkner (1792), 4 T. R. 565. (») Woodf. Landl. & Ten. 14th ed. p. 470. (o) See 51 Hen. III. stat. 4. (p) Keen v. Priest (1859), 4 H. & N. 236 ; 28 L. J. Ex. 157. (?) Piggott v. Birtles (1836), 1 M. & W. 441; 2 Gale, 18. (>•) Hutchins v. Chambers (1 758) , 1 Burr. 579 ; 2 Ld. Ken. 204. (s) 46 & 47 Vict. c. 61. It should be noted that sects. 49 — 52 of this Act were repealed by the Law of Distress Amendment Act, 1888 (51 & 52 Vict. c. 21, s. 8). (0 (1885), 15 Q. B. D. 457; 54 L. J. Q. B. 568. (w) Harvey v. Pocock (1843), 11 M. & W. 740 ; 12 L. J. Ex. 434. GOODS PRIVILEGED FROM DISTRESS. 275 where no rent is due may be recovered by the owner of the goods. (2 W. & M. c. 5, s. 4.) Generally, a distress cannot bo levied elsewhere than on the Fraudu- tenant's premises (»). But if, while his rent is in arrear, he mova i f " fraudulently or clandestinely " (y) removes his goods, to prevent goods. a distress, his landlord may, within thirty days after such removal, follow and take them from the place to which they have been removed (z). If, however, before getting at them, the goods have been sold to a bond fide purchaser for valuable consideration, ho will be too late (a). In Gray v. Stait (b), it was held that a land- lord could not follow and distrain his tenant's goods which had been fraudulently removed to prevent a distress for rent due, if at the time of the distress the tenant's interest in the demised pre- mises had come to an end and he was no longer in possession. "The statute 11 Geo. 2, c. 19, s. 1," said Bowen, L. J., " allows a distress upon goods fraudulently removed, only where a distress could have been lawfully made if they had remained upon the demised premises. The argument for the defendants is not assisted by the provisions of 8 Anne, c. 14, ss. 6, 7 (c) ; these enactments merely provide that the goods of the tenant may be distrained after the expiration of the tenancy whilst he remains in possession." The Law of Distress Amendment Act, 1888 (51 & 52 Vict. c. 21), Distress provides that no person shall act as bailiff to levy any distress for men ^ Act rent, unless authorised to act as a bailiff by a certificate of a 1888. county court judge, and any person not holding such a certificate who levies a distress is deemed to be a trespasser (d). The goods distrained cannot be sold until the expiration of fifteen days from their seizure, provided the tenant so require in writing, and givo secuiity for any additional costs thereby incurred. The costs of distress are regulated and restricted by the Distress for Eent Rules, 1888. (.'•) Buszard v. Capel (1828), 8 the value of the goods. See the B. & C. 141 ; 6 Bing. 150 ; but see recent cases of Tomlinson v. Con- Gillingham v. Gwyer (1867), 16 solidated, &c. Corporation (1890), L. T. 640. 24 Q. B. D. 135 ; 62 L. T. 162 ; (y) The word connecting these Hobbs v. Hudson (1890), 25 Q. B. adverbs being "or," not "and," D. 232 ; 59 L. J. Q. B. 562. it has been held that a landlord is {'>) (1883), 11 Q. B. D. 668 ; 52 justified under the statute in fol- L. J. Q. B. 412. lowing goods removed without the (c) As to the effect of this Act, slightest attempt at concealment. see Wilkinson v. Peel, [1895] 1 Oppcrman v. Smith (1824), 4Dowl. Q. B. 516 ; 64 L. J. Q. B. 178. & R 33 (d) See Hogarth v. Jennings, (z) 11 Geo. 2, c. 19. [1892] 1 Q. B. 907 ; 61 L. J. Q. B. (a) Sect. 2. But under sect. 3, 601. the landlord may recover double t2 276 AGRICULTURAL FIXTURES, ETC. County Reference should also be made to section 160 of the County Act F ?888 Courts Act, 1888 (51 & 52 Vict. c. 43), which provides that when sect'. 1(30.' goods in a tenement for which rent is due are taken in execution under the warrant of a county court, the landlord may claim the rent due to him by delivering a notice in writing signed by himself or his agent, stating the amount of rent claimed to be in arrear, and the time for and in respect of which such rent is due, to the bailiff making the levy, and such bailiff shall, in making the levy, in addition thereto distrain for the rent so claimed (e). Such claim, however, must be made within five clear days from the date of such taking, or before the removal of the goods, and is only available for four weeks' rent where the tenement is let by the week, or for two terms of payment where the letting is for any other term less than a year, or one year's rent in any other case. Agricultural Fixtures, &c. [85.] ELWES v. MAW. (1802) [3 East, 38.] The question in this case was whether the tenant of a farm in Lincolnshire was entitled, at the expiration of his lease, to demolish and cart away a beast house, a car- penter's house, a pigeon house, and other fixtures he had put up. It was held that he could not do this, and that they hecame the landlord's. The Agricultural Holdings Act of 18S3(/) has considerably ex- tended the rights of agricultural tenants to remove fixtures. The 34th section of that Act is as follows : — ' ' Where after the commencement of this Act a tenant affixes to his holding any engine, machinery, fencing, or other fixture, or erects any building for which he is not under this Act or otherwise entitled to compensation, and which is not so affixed or erected in pursuance of some obligation in that behalf or instead of some fix- (e) See Hughes v. Smallwood Q. B. 503. (1890), 25 Q. B. D. 30G ; 59 L. J. (/) 45 & 17 Vict. c. 01. AGRICULTURAL FIXTURES, ETC. 277 ture or building belonging to the landlord, then such fixture or building shall be the property of and be removable by the tenant before or within a reasonable time after the termination of the tenancy. ' ' Provided as follows : — " (1.) Before the removal of any fixture or building the tenant shall pay all rent owing by him, and shall perform or satisfy all other his obligations to tho landlord in respect to the holding. " (2.) In the removal of any fixture or building, the tenant shall not do any avoidable damage to any other building or other part of the holding. " (3.) Immediately after the removal of any fixture or building the tenant shall make good all damage occasioned to any other building or other part of the holding by the removal. " (4.) The tenant shall not remove any fixture or building with- out giving one month's previous notice in writing to the landlord of the intention of the tenant to remove it. " (5.) At any time before the exjnration of the notice of removal the landlord, by notice in writing given by him to the tenant, may elect to purchase any fixture or building comprised in the notice of removal, and any fixture or building thus elected to be purchased shall be left by the tenant, and shall become the property of the landlord, who shall pay the tenant the fair value thereof to an in- coming tenant of the holding ; and any difference as to the value shall be settled by a reference under this Act, as in case of com- pensation (but without appeal)." Fixtures erected for pui'poses of trade, ornament, or domestic use Trade, may, as a rule, be freely removed by the tenant. But in Buckland ™^T„i v. Butterfield (g) (which may be considered the leading case on domestic ornamental and domestic fixtures) it was held that a tenant was nxtmes . ma y gene- not entitled to remove a conservatory. As Dallas, C. J., said in rally be that case, the right of the tenant to remove an ornamental fixture removecl - " must depend on the particular case." As to shrubs, box borders, r b utter - &c, an ordinary tenant cannot remove such things, but a nursery- field. man may (/*). On the whole, then, as between landlord and tenant, the maxim Fixtures " quicquid plantatur solo, solo cedit" has lost much of its pristine ^ ®, force and application. But the tenant must take care to remove during his fixtures during the tenancy (/), even though the lease determines tenauc y- by forfeiture and not by effluxion of time (/.) ; otherwise, the law {ff) (1820), 2 Bro. & Bing. 54 ; 4 88 ; 4 Esp. 33. Moore, 440. (i) Lyde v. Eussell (1830), 1 B. (A) Empson v. Soden (1833), 4 & Ad. 394. B. & Ad. 655; 1 N. & M. 720; (k) Pugh v. Arton (1869), L. K. Penton v. Eobart (1801), 2 East, 8 Eq. 626 ; 38 L. J. Oh. 019. 278 AGRICULTURAL FIXTURES, ETC. Heir and executor. Vendor and vendee. Outgoing and incoming tenant. What is a fixture. Construc- tive annex- ation. will presume that lio 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 stripped of fixtures which add materially to its enjoyment. But exceptions to the rule are said to exist in the case of trade fixtures (/), and generally of those fixtures put up for ornament or convenience which can be removed without disfiguring the house (in). As between vendor and vendee, a sale of the freehold carries with it the fixtures, unless there is an express provision to the con- trary (//). As between outgoing and incoming tenant, there is generally an agreement by the latter (which need not be in writing) (o) to take the fixtures at a valuation. To this agreement it is desirable that the landlord should be a party ; otherwise he might say that tho outgoing tenant had forfeited them to him by not removing them, and so the incoming tenant would not be able to remove them at the end of his term. As to the tenant's rights to remove fixtures where the demised premises are mortgaged, see ante, page 74. The following definition of a fixture had the approval of tho Queen's Bench in a case (p) where tho question was whether certain colliery railways were exempt from distress as being fixtures : — " It is necessary, in order to constitute a fixture, that the articlo in question should be let into or united to the land, or to some sub- stance 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 disjdaced 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 remarked, however, that there can be a " constructive annexation." Keys, heirlooms, charters, deeds, fish, &c, are con- sidered for most purposes to bo annexed to the freehold. By way of further illustration of this subject, reference may be made to the case of Wake v. Hall (a), where the right of a miner (I) See Lawton v. Lawton (1743), 3 Atk. 14 ; Trappes v. Harter (1833), 2 C. & M. 153 ; 3 Tyr. 604. (m) Beck v. Rebow (1706), 1 P. Wms. 94 ; but see Cave v. Cave (1705), 2 Vern. 508. in) Colegrave v. Dios Santos (1823), 2 B. & C. 76; 3 D. & R. 255. (o) Hallen v. Bunder (1834), 1 C. M. & R. 266 ; 3 Tyr. 959 ; Lee v. Gaskell (1876). 1 Q. B. D. 700; 45 L. J. Q. B. 540. (p) Turner v. Cameron (1870), L. R. 5 Q. B. 306 ; 39 L. J. Q. B. 125. (/) See Hylton v. Hylton (1754), 2 Ves. 549 ; Hatch v. Hatch (1804), 9 Ves. 292. \z) Wheeler v. Sargeant (1893), 69 L. T. 181 ; 3 R. 663. GIFTS. 281 with great suspicion. So, as the leading case (a) on the subject shows us, silly women require to be protected against designing clergymen. " Perhaps no general rule can well be laid down as to what amounts to undue influence : that will be a question for the judge to decide upon the circumstances of each particular case, and such circumstances as the non-intervention of a disinterested person, or professional adviser, on the behalf of the donor, — especially if the donor is, from age or weakness of disposition, likely to be imposed upon — the statement of a consideration where there was actually none, the absence of a power of revocation, the improvidence of the transaction, furnish a probable, though not always a certain, test of undue influence or fraud " (b). The two recent cases of Mitchell v. Homfray (c), and Taylor v. Johnston (rf), may be mentioned here. The action in the former case was by the executors of a Mrs. Gel- The dard to recover a sum of 800?. from the defendant, who had acted ? oe * or s as her medical attendant. The 800/. had been given by Mrs. customer. Geldard to the defendant while she was his patient, and without her having any independent advice ; but the doctor had not been guilty of any undue influence ; and, after the relation of physician and patient had ceased, Mrs. Geldard elected to abide by the gift, and did, in fact, abide by it during the remaining three or four years of her life. Under these circumstances it was held that the gift could not be impeached after Mrs. Geldard's death, notwith- standing that it was not proved that the donor was aware that the gift was voidable at her election. "In Ehodes v. Bate "(e), said Lord Selborne, L. C, "it was laid down in clear terms that, in order to uphold a gift made to a person standing in a confidential relation, the donor must have had competent and independent advice in conferring it. This is undoubtedly the rule so long as the confidential relation exists; but it is not laid down in Ehodes v. Eate that advice of that kind is necessary when the confidential relation has come to an end, and the donor is no longer subject to its influence." " If the transaction," said Baggallay, L. J., " was not formally ratified, it was at aU events adopted ; and, for three years before her death, the testatrix kept to her determination not to impeach it." (a) Huguenin v. Baseley (1807), L. J. Q. B. 4G0. UVes. 273. [>/) (1882), 19 Ch. Div. 603; 51 (J) 2 Wh. & T.Eq. L. C. 584 ; and L. J. Ch. 879 ; and see In re Parker, see the recent case of Morley v. Barker v. Barker (18S0), 1G Ch. D. Louirhnan, [1893] 1 Ch. 73G ; G2 11. L. f. Ch. 515. (e) (1866), L. R. 1 Ch. 252; 35 - (c) (1881), 8 Q. B. D. 587 ; 50 L. J. Ch. 267. 282 GIFTS. A strong- minded, young lady. Morley v. Lough- Donationcs mortis causa. Attitude of donor. Recovery or revoca- tion. Actual delivery necessary. In Taylor v. Johnston (/), the action was by personal representa- tives for much the samo purpose as in the case last referred to, and it was held that, in the absence of proof of the exercise of control or influence on the part of the donee, or of the existence of the relation of guardian and ward between the donee and the donor, a gift of her property within a month hefore her death by an infant of twenty of business habits, firm will, and fully capable of managing her own affairs to a relative with whom she had been living from the time of her father's death five months before, is not invalid. " She was at this time," said the court, " in a moribund state, as nobody can doubt. The doctor who spoke to the state of her health speaks of it as ivasting, of her death as certain, but of her mind as perfectly clear, her actions wholly uncontrolled. Under these circumstances it is that she made the donation in question. Now, in my opinion, it is perfectly lawful, under such circum- stances, for an infant to make a donation. If the relationship of guardian and ward had subsisted, — ," that would have been a very different thing. When a gift is void as having been obtained by undue influence, the property can be recovered not only from the donee but also from other persons who may have innocently received it from the donee (? rtls ■ no ■ / t n- 1 causa It differs from a gift inter vivos (such as Irons v. Smallpiece has to differsfrom (0) Blount v. Burrow (1792), 4 (x) Duffield v. Hicks (1S27), 1 Bro. C. C. 72 ; Hills v. Hills (1841), Bligh, N. S. 497 ; 1 D. & C. 1. 8 M. &. W. 401 ; 5 Jur. 1185 ; In (y) Witt v. Amiss (1861), 1 B. & re Richards (1887), 36 Ch. D. 541 ; S. 109 ; 30 L. J. Q. B. 318. 56 L. J. Ch. 923. (z) Veal v. Veal (1859), 27 Beav. (/>) Farquharson v. Cave (1846), 303 ; 29 L. J. Ch. 321 ; In re Mead 2 Coll. 356. (1880), 15 Ch. D. 651; 50 L. J. (?) Jones v. Selby (1710), Prec. Ch. 30; In re Whitaker (1889), 42 Chanc. 300; Smith 0. Smith (1735), Ch. D. 119; 58 L. J. Ch. 487; 2 Stra. 955 ; Bunn v. Markham In re Dillon (1890), 44 Ch. D. 76 ; (1816), 7 Taunt. 224 ; Holt. 352. 59 L. J. Ch. 420. (r) Ward v. Turner (1752), 2 (a) Hewitt v. Kaye (1868), L. R. Ves. 431. See also In re Hughes 6 Eq. 198 ; 37 L. J. Ch. 633. (1888), 59 L. T. 586; 36 W. R. {b) Moore v. Moore (1874), L. R. 821. 18 Eq. 474; 43 L. J. Ch. 617. («) See Wms. Exors. (8th ed.), (c) Beak v. Beak (1872), L. R. p. 786. 13 Eq. 489 ; 41 L. J. Ch. 470. (t) Snelgrove v. Bailey (1744), (d) Thompsons. Hodgson (1727), 3 Atk. 214 ; In re Taylor (1887), 2 Stra. 777 ; Rigden v. Vallier 56 L. J. Ch. 597. (1751), 2 Ves. sen. '_'.V2. («) Miller v. Miller (1735), 3 P. (e) Tate v. Hilbert (1785), 2 Wms. 356. Ves. jun. 111. 284 GIFTS. legacy and from gift inter vivos. Unsuc- cessful efforts. Gift to husband aud wife. Married Women's Projierty Act, 1882. Donatio mortis causa. Inter vivos. do with) in the three points that (1) it is royocahlo, (2) it is liahle to legacy duty (/), and (3) to debts (g). An attempt to mako an irrevocable gift inter vivos cannot be supported as a donatio mortis causa (h) ; nor can an invalid testa- mentary gift be vivified in this way (?'). The old and familiar rule of law that husband and wife are for most purjDoses considered as but one person, so that under a gift by will to a husband and wife and a third person, the husband and wife take one moiety between them, the third person taking the other moiety, is still applicable, and has not been displaced by the Married Women's Property Act, 1882 (k). In Standing v. Bowring (I), the plaintiff, a widow, in the year 18S0, caused a sum of £6,000 Consols to be transferred into the joint names of herself and the defendant, who was her godson, and in whose welfare she took great interest. This transfer was not made known to the defendant. In 1882, the plaintiff, then eighty-eight years old, married a second husband, and soon afterwards applied to the defendant to re-transfer the stock into her name alone. It was decided that the transfer was originally mado with the deliberate intention of benefiting the defendant, and not with a view to tho creation of a trust. The Court would not, therefore, compel the defendant to re-transfer the stock. A cheque payable to the donor or order, and without having been endorsed by him, given by the donor during his last illness to his son, stands on the same footing as a promissory note or bill of exchange payable to the donor or order, and following Veal v. Veal (27 Beav. 303), will pass to the son by way of donatio mortis causa (m). A clear intention on the part of the donor to give, acted upon by the donee, does not probably constitute a valid gift inter vivos, without actual delivery (n). In 1866, A., soon after the birth of his son, T., purchased a pipe of wine for his son, and had it bottled and laid down in his cellar, and from that time it remained (/) 36 Geo. 3, c. 52, s. 7 ; 8 & 9 Vict. c. 76 s. 4. (ff) Smith v. Drury (1717), 1 P. Wms. 404. (/*) Edwards v. Jones (1836), 1 My. & Cr. 226. (») Mitchell v. Smith (1864), 12 W. E. 941 ; 4 De G. J. & S. 422. (k) In re March, Mander v. Harris (1884), 27 Ch.D. 166; 54 L.J. Ch. 143 ; In re Jupp, Jupp v. Buckwell (1888), 39 Ch. D. 148 ; 57 L. J. Ch. 774; Butler v. Butler (1885), 14 Q. B. D. 831; per Wills, J., affirmed by C. A., 16 Q. B. D. 374; 54 L. T. 591. (/) (1885), 31 Ch. D. 282 ; 55 L. J. Ch. 218. (m) Clement v. Cheeseman (1884), 27 Ch. D. 631 ; 33 W. R. 40 ; and see In re Shield, Pechy Pudge v. Burrow (1885), 53 L. T. 5. (») See Cochrane v. Moore, supra, dissenting from In re Harcourt, Danby v. Tucker (1883), 31 W. R. 578 ; dictum of Parke, B. , in Ward v. Audiand (1847), 16 M. & W. 862. BILLS OF SALE, ETC. 285 intact in the cellar, and was known in the family and amongst their friends as T.'s wine. In 1885, A. became bankrupt. It was decided that there was not sufficient evidence of an intention to make an immediate present gift of the wine to T., and that it passed to the trustee in bankruptcy (o). As to gifts defrauding creditors, see post, p. 286. Bills of Sale, &c. — ♦ — TWYNE'S CASE. (1585) [87.] [3 Eep. 80.] 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 conveyance to him of everything he had. In spite of this deed, how- ever, — in pursuance of the nefarious arrangement 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 absolute owner, and Twyne had nothing to do with it. Meanwhile Grasper went on 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 inte- (o) In re Ridgway (1885), 1.1 Q. B. D. 117 ; 54 L. J. Q. B. 570. But see Cochrane v. Moore, supra. 2S6 BILLS OF SALE, ETC. rest, whatever he might chance to find there. This pro- ceeding Twyne, who suddenly appeared on the scene, strongly objected to, for, said he, — " Everything 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 his 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 was not 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. (6.) The deed alleged that the gift was made " honestly, truly, and bond fide" and that was a very suspicious circumstance in itself. Gifts de- It is declared by 13 Eliz. c. o, that all gifts and conveyances, fraudmg whether of lands or chattels, made for the purpose of delaying or creditors. . defrauding creditors, shall be null and void as against such credi- tors. There is, however, a proviso excepting from the operation of this enactment gifts and conveyances made upon valuable considc— BILLS OF SALE, ETC. 287 ration and bond fide to persons having no notice of the fraud. Now, it is clear that Farmer Pierce's gift was for valuable consideration. Why, then, did it not fall within the proviso ? The answer obviously is, because it was not bond fide. It was merely the creation of a trust for the benefit of Pierce himself. In order that a mere voluntary settlement may be void within Fraud the statute, it is not necessary to prove that an actual intention to sometun j± 3 delay or defraud his creditors was present to the mind of the settlor at the time when the deed was executed. It is sufficient to set aside such a gift as fraudulent if the necessary consequence of it is so to delay or defraud the creditors (p). In such case the fraudulent intention will be presumed to exist. Thus, a man who contem- plates entering upon a hazardous business cannot, on the eve of doing so, take the bulk of his property out of the reach of those who may become his creditors in his trading operations by settling it upon his wife and children (7). Sect. 5 of 13 Eliz. c. 5, however, protects a purchaser for value of any interest, legal or equitable, derived under a settlement which is fraudulent and void under the statute as against creditors, provided such purchaser had no notice of its fraudulent nature (r). It may, too, be noticed that provision is made by the Bankruptcy Act, 1883, s. 47, for the avoidance, in most cases, of voluntary settlements made by a trader within two years of his bankruptcy, or, indeed, within ten years, "unless the parties claiming under such settlement can prove that the settlor was, at the time of making the settlement, able to pay all his debts without the aid of the property comprised in such settle- ment "(s). It is extremely important that it should be understood that a deed Fraudulent is not necessarily void because it amounts to an assignment of all ^ re ereuce- the grantor's property for the benefit of a particular creditor or of particular creditors. There is nothing at common law to prevent a debtor preferring one creditor to another, and the Statute of Eliza- beth does not touch the question of equal distribution of assets. "If the deed is bond fide — that is, if it is not a mere cloak for retaining a benefit to the grantor — it is a good deed under tho (p) Freeman v. Pope (1870), (>•) Halifax Banking Co. v. Gled- L. R. 5 Ch. 538 ; 30 L. J. Ch. 689. hill, [1891] 1 Ch. 31 ; CO L. J. Ch. (q) Mackay v. Douglas (1872), 181. L. R. 14 Eq. 106 ; 41 L. J. Ch. (*) See In re Vansittarfc (No. 1), 539 ; Ex parte Russell, In re Butter- [1893] 1 Q. B. 181 ; 62 L. J. Q. B. worth (1882), 19 Ch. D. 588; 51 277; (No. 2), [1893] 2 Q. B. 377 ; L. J. Ch. 521 ; In re Trough tou 62 L. J. Q. B. 279 ; In re Brail, (1891), 71 L. T. 427. But see In re [1893] 2 Q. B. 381 ; 62 L. J. Q. B. Cranston (1892), 9 M. B. R. ICO. 157 ; In re Navlor (1893), 63 L. J. Q. B. 460 ; 69 L. T. 355. 288 BILLS OF SALE, ETC. Boldero's case. Spencer { Slater. Bills of sale. Statute of Elizabeth " (t). Such a deed may, it is true, operate as an act of bankruptcy, or it may be void as amounting to a fraudu- lent preference within the meaning of the bankruptcy laws (u) ; but, if the time be past within which the execution of the deed is an act of bankruptcy available for adj udication against the grantor, or within which the deed can be set aside as a fraudulent prefer- ence, it cannot be treated as void within the policy of the bank- ruptcy laws (as). It has been recently decided that a deed, by which insolvent debtors conveyed all their estate to trustees on trust for sale and division of the proceeds amongst the creditors parties to the deed, was not void under the Statute of Elizabeth, although it contained a clause leaving it in the discretion of the trustees not to pay any dividend to creditors who had neglected or refused to execute the deed (y). The Court distinguished the case from the somewhat similar one of Spencer v. Slater (z), where the deed was held to be void, on the ground that in the latter case the primary object was to carry on, not to sell, the business ; and there was, moreover, in Spencer v. Slater a peculiar resulting trust under which, at the ex- piration of twelve months, the debtor might apply to the trustees to be paid the dividends of creditors who neglected or refused to assent to or execute the deed, and then, if the creditors did not within seven days assent or execute, the money was to be paid to the debtor. The present subject derives great interest and importance from its connection with bills of sale, which are regulated by special and elaborate statutory provisions (a). 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. Prior to the legislation of modern times, the con- tinuance in possession by the grantor was viewed as a badge of fraud, and hence as a circumstance serving to avoid the transaction under the Statute of Elizabeth. Now, it was clearly beneficial that the owner of personal property should be able to make such a transfer without any actual change of possession, and yet, that publicity should be given to the transaction. This residt was (t) Per Giffard, L. J., Alton v. Harrison (1869), L. R. 4 Ch. at p. 626 ; 38 L. J. Ch. 669. (h) See 46 & 47 Vict. c. 52. (.r) Ex parte Games, In re Bam- ford (1879), 12 Ch. D. 314. (y) Boldero v. London and West- minster Loan Co. (1879), 5 Ex. D. 47; 12 L. T. 56. (;) (1878), 4 Q. B. D. 13; 48 L. J. Q. B. 204 ; and see Golden v. Gillam (18S2), 51 L. J. Ch. 154, 503 ; 46 L. T. 222 ; In re Ridler (1883), 22 Ch. D. 74 ; 52 L. J. Ch. 343. («) 17 & 18 Vict. c. 36 ; 41 & 42 Vict. c. 31 ; 45 & 46 Vict. c. 43. BILLS OF SALE, ETC. 289 accomplished by enacting that a bill of sale, if duly made and duly registered in the manner prescribed, should be valid whether the grantor continued in possession or not, and that even as against his trustee in bankruptcy. Under the Act of 1878, the registration is to take place within seven days, instead of twenty-one, as formerly; the consideration is to be set forth in the bill of sale, and the necessity of attestation is introduced. The Act of 1882 (6), which is Art of to be construed together with the 1S78 Act, renders entirely void every bill of sale given in consideration of any sum under 30?., or which is not duly attested and registered, or which does not truly set forth the consideration for which it was given. The Act also supplies a form in accordance with which the bill of sale must be drawn, and provides that it shall have attached a schedule contain- ing an inventory of the property comprised therein. For further information reference should be made to the statutes and treatises bearing on the subject. It may, perhaps, be convenient here to mention the existence 27 Eliz. of 27 Eliz. c. 4. That statute, which is confined exclusively to real c * *• property, is in favour of purchasers, and makes void, as against subsequent purchasers of the same land, all gifts and conveyances made with the intention of defeating them, or containing a power of revocation. And it was settled by numerous decisions (c) that every voluntary conveyance was, by the statute, made void as against a subsequent bond fide purchaser for value (d). This, how- ever, has recently been altered by the Voluntary Conveyances Act, Voluntary 1893 (56 & 57 Vict. c. 21), which provides that voluntary conveyances, a °^ e Xct if in fact made bond fide and without any fraudulent intent, are not 1893. to be avoided under 27 Eliz. c. 4. This does not apply to trans- actions completed before the passing of the Act. Voluntary gifts for charitable purposes have recently been held (e) not to come within the meaning of 27 Eliz. c. 4, and so are not avoided by a subsequent conveyance for value. (b) 45 & 46 Vict. c. 43. recent case of De Mestre v. West, (c) Doe v. Manning (1807), 9 [1891] A. C. 264 ; 60 L. J. P. C. East, 59. 66. (d) As to who are volunteers (e) Ramsay v. Gilchrist, [1892] -\rithin the meaning of this Act, A. C. 412 ; 61 L. J. P. C. 72. And reference may be made to the see 43 Eliz. c. 4. 8. — C. U 290 WAIVER OF FORFEITURE, ETC. Waiver of Forfeiture, &c. — ♦ — [88.] DUMPOR v. SYMMS. (1603) {Sometimes called Dumpor'a Case.) [4 Coke, 119.] In the tenth year of Elizabeth's reign the 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 permission and assigned the term to one Tubb. Tubb, after a brief enjoyment of this world's goods, made his will, devising 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 College of Corpus Christi was kindled. Bolde had cove- nanted with them not to assign without leave, and such a covenant, they said, should have been observed by who- ever held the lands. Therefore they entered for the broken condition, and leased to Dumpor for twenty-one years. Dumpor entered, but Symms re-entered, and for doing so Dumpor now brought this action of trespass against him. 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." Useless- " Dumpor's case always struck me as extraordinary," said a 1807 (/). " The profession have always w (/) Brammell v. Macpherson (1807), 14 Ves. 173. nessof ^ judge in 1807 (/). "The profession have always wondered at case. WAIVER OF FORFEITURE, ETC. 291 Dumpor's case," said another in 1812 (g). Yet such is the vitality of error that Dumpor's case remained the law of the land till 1860, when the legislature enacted that " eveiy such licence should, unless otherwise expressed, extend only to the permission actually given" (h) ; and the next year another Act was passed prohibiting waivers in particular instances from being interpreted to mean general waivers (?). But though, therefore, Dumpor's case is now of merely anti- Waiver of quarian interest, it is supposed to " lead " to the rather important f° r f eiture ' subject of waiver of forfeiture. The courts lean against forfeiture; and therefore any positive act Leaning of the landlord from which it mav be inferred that he elected to courts J against overlook the breach of covenant, and to continue the tenancy, will forfeitures. be greedily snatched at (k). The most satisfactory of the acts which operate as a waiver of forfeiture is acceptance of rent which has Acceptance become due since the forfeiture ; and if such rent is accepted, it is of of reut " no consequence that the landlord took it under protest and declaring that he did not intend to waive the forfeiture (I). But the landlord would not avoid the forfeiture by taking rent due before the for- feiture (m). When the landlord has once definitely made his election either way, he cannot go back from it ; and so his receipt of rent after he has brought ejectment for a forfeiture comes too late to be a waiver (»), though there may be evidence of a new tenancy from year to year on the terms of the old lease (o). Moreover, the receipt of rent is no waiver of a continuing breach, e.g., where the covenant is to keep the demised premises in repair during the term(p), or not to use certain rooms in a particular manner ((/). There cannot be a waiver without knowledge of the forfeiture ; and so a son who collected his father's rents was held not to have authority to waive a forfeiture which the old man did not know had occurred (r). [g) Doe v. Bliss (1812), 4 Taunt. («) Doe d. Moorecraft v. Meux 736. (1825), 4B. & C. 606; 1 C. & P. (h) 22 & 23 Vict. c. 35, s. 1. 346 ; Jones v. Carter (1846), 15 M. (i) 23 & 24 Vict. c. 38, s. 6. & W. 718 ; Grimwood v. Moss \k) Ward v. Day (1864), 5 B. & S. (1872), L. R. 7 C. P. 360 ; 41 L. J. 359 ; 33 L. J. Q. B. 254. C. P. 239. (/) Davenport v. The Queen (o) Evans v. Wyatt (1880), 43 (1877), 3 App. Ca. 115 ; 47 L. J. L. T. 176 ; 44 J. P. 767. P. C. 8 ; and see Croft v. Lumley (p) Doe d. Baker v. Jones (1850), (1855), 5 E. & B. 648 ; 25 L. J. 5 Ex. 498 ; 19 L. J. Ex. 405. Q. B. 223. () Doe d. Nash v. Birch (1836), 1 M. & W. 402. u2 292 WAIVER OF FORFEITURE, ETC. Covenant by tenant not to assign ■without consent. Consent "not to be arbitrarily withheld.'" Eelief against forfeitures. It is a very common condition in a lease that the tenant shall not assign without his landlord's consent. It has heen held that this condition is not broken by a compulsory assignment by law ; under the bankruptcy laws, for instance, or under a railway company's Act (s). But by inserting express words to that effect in the lease the lessor may make a compulsory assignment a ground of for- feiture ; and a deed of assignment in trust for creditors registered under the Bankruptcy Act, 1861, s. 194, was held to work a for- feiture (t). Marriage has been held not to be a breach of the condition against alienation (u) ; nor (probably) is a bequest of the term (.»:). Letting lodgings has been held not to be a breach of a covenant not to underlet {y). Sometimes the covenant a tenant enters into is that he will not assign without his landlord's consent, " such co7isent not being arbi- trarily 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 refuses his consent arbitrarily, to assign without any breach of covenant (z). Forfeiture for wrongful assignment cannot be relieved against under the Conveyancing Act, 1881 (44 & 45 Vict. c. 41), s. 14 (a). That section, however, considerably extends the power of the Court to relieve against forfeitures (6) ; but application for relief must be made before the lessor has re-entered (c). Reference should also be made to the Conveyancing Act, 1892 (55 & 56 Vict. c. 13), which enables the Court to protect under- lessees on the forfeiture of superior leases ; and this provision extends to cases in which the Court would have no power to grant relief to the lessee himself (d). (s) Doe d. Mitchinson v. Carter (1798), 8 T. R. 57 ; Slipper v. Tottenham Ry. Co. (1867), L. R. 4 Eq. 112 ; 36 L. J. Ch. 841. (t) Holland v. Cole (1867), 1 H. &C. 67; 31 L. J. Ex. 481. (>i) Anon., Moor, 21. \z) Fox v. Swann (1655), Style, 483 ; Doe v. Bevan (1815), 3 M. & S. 353. (y) Doed. Pitt v. Laming (1814), 4 Camp. 77. (z) Treloar v. Bigge (1874), L. R. 9 Ex. 151 ; 43 L. J. Ex. 95 ; Sear v. House Property Co. (1880), 16 Ch. D. 387 ; 50 L. J. Ch. 77. (a) See Barrow v. Isaacs, [1891] 1 Q B. 417 ; 60 L. J. Q. B. 179 ; and 55 & 56 Vict. c. 13, s. 2, sub- ss. (2) and (3). (b) See Quilter v. Mapleson (1882), 9 Q. B. D. 672 ; 52 L. J. Q. B. 44 ; Lock v. Pearce, [1893] 2 Ch. 271 ; 62 L. J. Ch. 582. (c) Rogers v. Pice, [1892] 2 Ch. 170; 61 L. J. Ch. 573. {d) High gate or Cholmeley School v. Sewell, [1894] 2 Q. B. 906 ; 63 L. J. Q. B. 820. And see Nind v. Nineteenth Century Building Society, [1894] 2 Q. B. 226 ; 63 L. J. Q. B. 636. ASSIGNMENT OF CHOSES IN ACTION. 293 Assignment of Choses in Action. — ♦ — BRICE v. BANNISTER. (1878) [89.] [3 Q. B. D. 569 ; 47 L. J. Q. B. 722.] Mr. Gough, ship-builder, agreed to build a ship for Mr. Bannister, ship-owner, for 1,375/. After this agreement had been entered into, Mr. Gough gave one of his credi- tors, Mr. Brice, solicitor, of Bridgwater, the following order, addressed to Mr. Bannister : — " / 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." Directly Brice received this order, he gave notice of it to Bannister in the following terms : — " / hereby give you notice that by a memorandum in writ- ing dated the 27th of October, 1876, John Gough, of this place, authorised 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 discharge." 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 is reasonable and 234 ASSIGNMENT OF Oil OSES IN ACTION. Chose in action not assignable at common law. Judicature Act, 1873. Assignor reserving rights. just he should do for his own good. But the law seems to be so : and any one ivho 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" Previously to 1873 — with exceptions, however, in favour of bills of exchange, and life or marine policies (e), — a chose in action could not be effectively assigned at law, though it could in equity. But the Judicature Act, 1873, provides (/) that — Any absolute assignment, by writing under the hand of the assignor {not purporting to he by ivay of charge only), of any debt or other legal chose in action, of which express notice in ivriting 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 passed) to pass and transfer the legal right to sucti debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the poiver to give a good discharge for the same, without the concurrence of the assignor : Pro- vided always, that if the debtor, trustee, or other person liable in respect of such debt or chose in action shall have had notice that such assignment is disputed by the assignor or any one claiming under him, or of any other opposing or conflicting claims to such debt or chose in action, he shall be entitled, if he think fit, to call upon the several persons making claim thereto to interplead concerning the same, or he may, if he think fit, pay the same into the High Court of Justice under and in conformity ivith the provisions of the Acts for the relief of trustees. It has recently been held, by Chitty, J., that this provision is retrospective, and applies to assignments of choses in action made before that Act came into operation (g). In the recent case of National Provincial Bank v. Harle (/;), where the mortgagee of some premises had assigned to his bankers, as security for the balance of his banking account, the sum due on the mortgage deed, subject to his right to have an account and for the reconveyance of the premises on certain conditions, it was held that the assignment was not absolute but only " by way of charge." This case, however, was disapproved in the more recent case of Tancred (e) See 30 & 31 Vict. c. 144, and ( g ) Dibb v. Walker, [18931 2 Ch. 31 & 32 Vict. c. 86 ; 3 & 4 Anne, 429 ; G8 L. T. 610. c 9. (h) (1881), 6 Q. B. D. 626; 50 (/) Sect. 25, sub-s. (6). L. J. Q. B. 437. ASSIGNMENT OF CHOSES IN ACTION. 295 v. Delagoa Bay Co. (/), where it was held that a mortgage of debts due to the mortgagor, made in the ordinary form with a proviso for redemption and reconveyance upon repayment to the mortgagee, was " an absolute assignment (not purporting to be by way of charge only) " within the above section of the Judicature Act. In another case (k) the plaintiffs had sub-let a portion of pre- Assign- mises in Baker Street, of which they had a lease, to the defendant, ment °{ mi n, ....... rent not ±ney afterwards assigned then- interest m the premises to a person yet due. named Burrows, agreeing with him in writing that, notwithstand- ing the assignment, they should receive the rent due from the defendant for the remainder of her lease ; and notice of this agree- ment was given to the defendant. The defendant afterwards sur- rendered her lease to Burrows, and in an action for rent claimed as accruing after the surrender it was held that, even if there was a valid assignment of a chose in action, still that the plaintiffs could not recover, for that the assignment was of rent to become due, whereas no rent had accrued due after the surrender, and the defen- dant could not be prevented by the agreement between the plain- tiffs and Burrows from surrendering her lease to Burrows. It seems to be doubtful, however, whether there was in this case any valid assignment within the sub-section. In Burlinson v. Hall (?) debts had been assigned by deed to the plaintiff upon trust that he should receive them, and out of them pay himself a sum due to him. from the assignor, and pay the surplus to the assignor. It was held that this was an "absolute assignment (not purporting to be by way of charge only)," and that the plaintiff might sue in his own name for the debts. Bef erence may also be made to the recent case of "Western Wagon "Western Co. v. Westfm). There P. mortgaged freehold property to the ^£ on . Co - defendants, to secure £7,500, and further advances up to £10,000, which the defendants contracted to make. P. made a second mort- gage of the same property to the plaintiffs to secure £1,000, and further advances up to £2,500, and assigned to them his right, under the contract in the first mortgage, to call for and require payment from the defendants of the further advances therein men- tioned, and the full benefit of the contract. The plaintiffs gave notice of this assignment to the defendants, but, notwithstanding (i) (1889), 23 Q. B. D. 239; 58 (0 (1884), 12 Q. B. D. 347; 53 L. J. Q. B. 459. And see Comfort L. J. Q. B. 222. But seethe recent v. Betts, [1891] 1 Q. B. 737; 60 case of Tancred v. Delagoa Bay Co. L. J. Q. B. 656. (1889), supra. (A-) Southwell v. Scotter (1880), (m) [1892] 1 Ch. 271; 61 L. J. 49 L. J. Ex. 356; 44 J. P. 376. Ch. 244. And see May v. Lano (1894), 64 L. J. Q. B. 236. 296 ASSIGNMENT OF CHOSE S IN ACTION. Other cases. Mortgages. Novation. the notice, the defendants subsequently made a further advance of £500 to P. The plaintiffs thereupon brought an action to recover from the defendants personally the sum of £500 so paid by them to P., or damages for breach of contract. But it was held that no money or fund was bound by the contract to make further advances which created no debt, and that, on this ground, Brico v. Bannister was distinguishable and did not apply. It was also held that, whether the assignment did or did not fall within sect. 25, sub-s. (6), of the Judicature Act, 1S73, the plaintiffs could not sue for damages in their own right, but only in the right of their assignor P. who, on the facts, had sustained no damage, and that on this point also the plaintiffs' claim failed. Other cases on the subject that may usefully be referred to are Buck v. Bobson (1878), 3 Q. B. D. 686; 48 L. J. Q. B. 250; Young v. Kitchen, 3 Ex. D. 127 ; 47 L. J. Ex. 579 ; Re Sutton's Trusts (1879), 12 Ch. D. 175; Schrcoder v. Cent. Bank of London (1876), 34 L. T. 735; 24 W. E. 710; British Waggon Co. v. Lea (1880), 5 Q. B. D. 149 ; 49 L. J. Q. B. 321 ; Re Tritton, Ex parte Singleton (1889), 61 L. T. 301 ; 6 M. B. R. 250; Colonial Bank v. Whinney (1886), 11 App. Cas. 426; 56 L. J. Ch. 43; Gason v. Bich (1887), 19 L. B. Ir. 391. It seems that under the Conveyancing Act, 1881, the transferee of a statutory mortgage may sue on it in his own name (»). Novation may be just mentioned here. It occurs where a third party undertakes the liability of the contract, and is accepted by the creditor in substitution for the original contractor (o). This mode of discharge receives its commonest illustration in the acceptance by policy holders of the transfer of their policies, and in changes in firms of partners. (») 44 & 45 Vict. c. 41, s. 27. (o) ' ' Praeterea novatione tollitur obligatio. Veluti si id quod tu Seio debeas, a Titio dari stipulatus sit. Nam interventu novre personam nova nascitur obligatio, et prima tollitur trauslata iu posteriorem." Just. Inst. 3, 29, 3. COVENANTS RUNNING WITH THE LAND. 297 Covenants Running with the Land. SPENCER v. CLARK. (1583) [00.] (Sometimes called Spencer's Case.) [oEep. 61.] Spencer let a house and grounds to Smith, for twenty- one years, and Smith covenanted to build a brick wall on the lands let to him. Smith assigned the demised pre- mises to Jones, without having made the least attempt at building the brick wall. But Jones could not live there either, and he in his turn passed on the place to Clark. Meanwhile nobody had built the wall, and Spencer called on Clark to do it, saying that as the assignee he was bound by Smith's covenant. It was decided, however, 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 is said to run with the land when either the liability Running to perform it, or the right to take advantage of it, passes to the Wltb land- assignee of that land. A covenant is said to run with the reversion when either the Kunning liability to perform it, or the right to take advantage of it, passes ^ rever- to the assignee of that reversion. At common law covenants run with the land, but not with the reversion. 32 Hen. VIII. c. 34, however, corrected that anomaly (p). The law on the subject of covenants runniug with the land may bo summed up as follows : — (1.) Suppose the lessee who makes the covenant omits all mention (1.) As- of his assigns, and thinks only of himself. signs not (a) If the covenant has to do with something not in existence at the time the lease is made, the assignee is not bound (q). This is pre- cisely the case of Spencer v. Clark. The brick wall was not in (p) See also 44 & 45 Vict. c. 41, (?) Doughty v. Bowman (1848), 88. 10, 11, 12. 11 Q. B. 441 ; 17 L. J. Q. B. 111. 293 COVENANTS RUNNING WITH THE LAND. existenco at the time the lease was made, and indeed history does not record that it had any subsequent existence. Minshull v. In Minshull v. Oakes (r), however, the Court expressed their Oakes, bad op^f^ that it was not consistent with reason that the naming of the assigns in a covenant should vary the liability. (b) " When the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is in a manner annexed and appurtenant to the thing demised, and shall run with the land, and shall bind the assignee, although he be not bound by express words " (s). Particular "The following covenants seem to run with the land, so as to held to run bind ^ ne assignee, whether of the reversion or the term, although with land, not named : — A covenant to pay rent or taxes, or to repair, or to leave in repair ; to maintain a sea wall in esse (t) ; to repair, renew, and replace tenants' fixtures and machinery fixed to the pre- mises ( u) ; not to plough ; to use the land in a husbandlike manner ; to lay dung on the demised land annually ; to reside on the demised premises during the term ; to permit the lessor to have access to two rooms excepted from the demise ; to carry all the corn produced on the demised land to the lessor's mill to be ground (x) ; to leave the land as well stocked with game at the end of the term as it was found to be at the beginning of it (y) ; to supply demised houses with good water ; to repair, and pay ground rent ; for quiet enjoy- ment ; to produce title-deeds ; to make further assurance ; to renew the lease ; to endeavour to procure a renewal of the lease for another life (in an underlease by lessee for Lives) ; and to build a new smelting mill in lieu of an old one in a lease of mines (z). There is also authority that the covenant to insure («), the covenant not to assign or sub-let without licence (b), and the covenant not to carry on a particular trade (c), run with the land" (d). Moreover all implied covenants run with the land. (2.) As- (2.) Suppose, however, that the lessee covenants for his assigns as signs men- u f himself, tioned. . . (a) The assignee is, of course, liable m case (b) of (1). (b) But he is also bound in case (a) of (1), provided that what is to be done is to be done on the demised premises (e). (r) (1858), 2 H. & N. 793 ; 27 2 Q. B. 200 ; 36 L. J. Q. B. 79. L J. Ex. 194. (~) Sampson v. Easterby (1829), (s) Per cur. in Bally V. Wells 9 B. & C. 505 ; 4 M. & R. 422. (1769), 3 Wils. 25. (a) Vernon v. Smith (1821), 5 B. (0 Morland v. Cook (1868), L.R. & Ad. 1. 6 Eq. 252 ; 37 L. J. Ch. 825. (/;) Williams v. Earle, supra. («) Williams r.Earle (1868), L.R. (c) Congleton v. Pattison (1808), 3 Q. B. 739 ; 37 L. J. Q, B. 231. 10 East, 130. (x) Vyvyan v. Arthur (1823), 1 (d) Woodf. Land. & Ten. (14th B. & C. 410 ; 2 D. & R. 670. ed.), p. 168. (ij) Hooper v. Clark (1867), L. R. (e) Bally v. Wells, supra. COVENANTS RUNNING WITH THE LAND. 2C9 Clark, for instance, would have had to build the wall if Smith had covenanted for his assigns. (c) The assignee though expressly named, is not bound by a covenant which is merely personal or collateral to the demised premises. " The following covenants seem to be personal covenants, so as Personal not to bind the assignee : — A covenant by a lessor to pay on a covenants, valuation for all trees planted, or all improvements made, by the lessee during the term ; to give the lessee the option of pre-emption of a piece of ground adjoining the demised premises ; a covenant by lessee to pay, in addition to rent reserved, ten per cent, on the outlay which the lessor should make in improving the buildings ; not to keep a beer shop within a certain distance of the demised premises (/) ; a covenant to pay rent and repair, made with a mort- gagor and his assigns, in a lease granted by himself together with the mortgagee ; a covenant in an underlease whereby the lessor covenanted to observe, and indemnify the lessee against, the cove- nants in the superior lease, one of which was to build several houses on the land (t, perhaps, where the covenantee has some interest in the land independently of the covenant) do not run with the land. If they did, a purchaser might find himself saddled with obligations of which he was ignorant, and which would have deterred him from buying, had he known of them ; and the law looks with disfavour on impediments to the free circulation of pro- perty (J). If, however, a person takes premises with full knowledge of the existence of such a covenant, he may be bound by it (to) ; and, indeed, it is his duty to inquire into the title of his vendor or lessor (»). Thus, in the case of Patman v. Harland(o), it appeared that in 1876 a conveyance in fee of building land at Wimbledon had been made to a purchaser subject to a covenant against erect- ing on the land anything except a private house. The land was afterwards leased, and the lessee put up a corrugated iron building as an art studio for ladies. In an action by the original vendor against the lessee it was held that any representations by the lessor to the lessee that there was no restrictive covenant did not protect the lessee from being affected with constructive notice of the lessor's title, and that a purchaser who has notice of a deed necessarily affecting the vendor's title has notice of the contents of the deed. It was also held that the doctrine that a lessee has constructive notice of his lessor's title is not altered by the Vendor and Pur- chaser Act, 1874 (p), but a lessee who is within that Act is in the same position as if he had contracted not to look into his lessor's title. The recent case of Haywood v. The Brunswick Permanent Benefit Building Society (q), however, shows that these doctrines (£) Kingdon v. Nottle (1815), 4 M. & S. 53 ; and see Sharp v. Waterhouse (1857), 7 E. & B. 816 ; 3 Jur. N. S. 1022. (/) Keppel v. Bailey (1834), 2 My. & K. 517. (■;«) Tulk v. Moxhay (1848) (the Leicester Square case), 2 Ph. 774 ; Luker v. Dennis (1877), 7 Ch. Div. 227 ; 47 L. J. Ch. 174 ; Spencer v. Bailey (1893), 69 L. T. 179. («) Wilson v. Hart (1866), L. R. 1 Ch. 463 ; 35 L. J. Ch. 569 ; and see Thome well v. Johnson (1881), 50 L. J. Ch. 641 ; 44 L. T. 768 ; Nottingham Patent Brick and Tile Co. v. Butler (1886), 16 Q. B. D. 778; 55 L. J. Q. B. 280; In re Birmingham and District Land Co. andAllday,[1893]lCh.342; 62 L.J. Ch. 90 ; Davis v. Leicester Corpora- tion, [1894] 2 Ch. 208; 63 L. J. Ch. 440 ; Groves v. Loomes (1885), 55 L. J. Ch. 52; 53 L. T. 592; Brown v. Inskip(1884), 1 C. &E. 231. (o) (1881), 17 Ch. D. 353 ; 50 L. J. Ch. 642. (p) 37 & 38 Vict. c. 78, s. 2. (?) (1882), 8 Q. B. D. 403; 51 L. J. Q. B. 73. COVENANTS RUNNING WITH THE LAND. 301 are not to be pushed too far. A plot of ground was conveyed subject to a rent-charge, the grantee for himself, his heirs, exe- cutors, and assigns, covenanting with the grantor, his heirs and assigns, that he, the grantee, his heirs or assigns, " will erect, within two years from the date of these presents, and at all times thereafter keep in good and tenantable repair and condition, and from time to time, when necessary, will rebuild upon the said plot of land such good and substantial messuages or other buildings as shall be of the annual letting value of at least double the amount of rent-charge limitei in respect of such plot." In an action by the assignee of the grantor against mortgagees in possession to an assignee of the grantee for breach of this covenant, it was held that the covenant did not run with the land so as to make the defendants liable at common law, and that it was not a covenant which could be enforced in equity against assignees with notice. " It strikes me," said Lindley, L. J., " that this is an attempt to extend the doctrine of Tulk v. Moxhay too far." See, however, the recent cases of Collins v. Castle (1887), 36 Ch. D. 243 ; 57 L. J. Ch. 76; Tucker v. Vowles, [1893] 1 Ch. 195; 62 L. J. Ch. 172; Tindall v. Castle (1893), 62 L. J. Ch. 555; 3 B. 418; Meredith r. Wilson (1893), 69 L. T. 336. The following cases on this subject may be referred to : — Sayers v. Collyer (1884), 28 Ch. D. 103 ; 54 L. J." Ch. 1 ; L. C. & D. Ey. Co. v. Bull (1882), 47 L. T. 413; Austerberry v. Corporation of Oldham (1885), 29 Ch. D. 750; 55 L. J. Ch. 633; Fleetwood v. Hull (1890), 23 Q. B. D. 35 ; 58 L. J. Q. B. 341 ; Clegg v. Hands (1890), 44 Ch. D. 503 ; 59 L. J. Ch. 477 ; Everett v. Eemington, [1892] 3 Ch. 148; 61 L. J. Ch. 574. As to how far a restrictive covenant justifies a vendee in claim- Restrictive ing a declaration that the vendor has not shown a good title, the covenants- case of In re Higgins and Hitchman's Contract (1882), 21 Ch. D. 95 ; 51 L. J. Ch. 772, may be consulted. There, on the sale of a villa at St. Leonards, the vendor agreeing to deduce a good title, it appeared that the vendor's predecessor in title had covenanted not to use the pi-emises as gas-works or a public-house. It was held that this covenant constituted a fatal objection to the title, although the respectability of the neighbourhood made it extremely unlikely that anybody would ever want to convert the villa into gas-works or a public-house. An action may be maintained by one tenant in common of a reversion for breach of a covenant running with the land, without joinder of his co-tenants in common as plaintiffs, where the severance of the reversion takes placo after the demise. Eoberts v. Holland, [1893] 1 Q. B. 665 ; 62 L. J. Q. B. 621. 302 ACCORD AND SATISFACTION. DISCHARGE. Accord and Satis/action , [91.] Principle of leading case. Different kinds. CUMBER v. WANE. (1719) [1 Strange, 426.] 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 51. 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 51. in full satisfaction for the debt of 15/., and that he had paid the 51. Though perfectly true, this was not considered a satisfactory plea, and 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 ; but 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. Therefore — (1.) The payment of something of a different nature, though of less yalue, e.g., an old arm-chair (which may have a fancy value quite apart from its intrinsic usefulness), may be pleaded in satis- faction of a debt of 10,000?. So a negotiable instrument — by the way, it must be taken that in Cumber v. "Wane the note was not negotiable — for 5/. might very successfully be pleaded in satisfac- ACCORD AND SATISFACTION. 303 tion of a debt of 15?. (a). In the case of Goddard v. O'Brien (b) this point, which had formerly been regarded as doubtful, was established beyond question. (2.) So may a payment, smaller indeed, but earlier than origin- Payment ally stipulated for, or made at a different place. Bis dot qui cito ^different dat (c). place. (3.) So when there is a dispute as to the exact sum due (d). Dispute. (4.) The doctrine does not apply to unliquidated damages, for it is Unliqui- not known what is really due to the plaintiff. Eailway companies damages 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 (e). (5.) Under the Bankruptcy Act, 1890, a debtor may be dis- Composi- charged from obligations by his creditors accepting a composi- creditors tion(/). It is to be observed that a smaller sum may be pleaded in satis- Receipt faction of a greater if there is a receipt under seal (g). Moreover, under sea1, payment of part may sometimes be evidence of a gift of the remainder ; or, again, there may be a remedy by way of set-off or counter-claim. To be a good discharge, an accord must he executed (h), unless, indeed, the jury find that what the plaintiff accepted in satisfaction was not the performance, but the promise (*'). In the recent case of Day v. McLea (k), the plaintiffs claimed a sum of money for damages for breach of contract, and the defen- dants sent a cheque for a less amount, with a form of receipt ' ' in full of all demand." The plaintiffs kept the cheque and sent a receipt on account, and sued for the balance of their claim. The Court of Appeal held that keeping the cheque was not, as a matter of law, conclusive that there was an accord and satisfaction of the claim, but that it was a question of fact on what terms the cheque was kept. Accord and satisfaction made by a stranger on behalf of tho defendant, and adopted by the plaintiff, is a good defence (I). (a) Sibree v. Tripp (1846), 15 M. (/) 53 & 54 Vict. c. 71, s. 3. &W. 23; 15 L. J. Ex. 318. {(/) Fitch v. Sutton (1804), 5 East, (£) (1882), 9 Q. B. D. 37 ; 46 230. L. T. 306. (ft) Edwards v. Chapman (1836), (c) Pinnell's case (1602), 5 Co. 1 M. & W. 231 ; 4 D. C. P. 732. 1 1 7 (i) Hall v. Elockton (1851), 16 Q. (d) Cooper v. Parker (1855), 15 B. 1039 ; 20 L. J. Q. B. 201 ; and C. B 822 ; 24 L. J. C. P. 68. Evans v. Powis (1847), 1 Ex. 601 ; WRidr-iil/-. (.:.W.Ry.Co.(185!i), 11 Jur. 1043. 1 F. &F. 706 : and see Lee v. Lane. (/,) (1889), 22 Q. B. D. 610 ; 58 & Yorks. By. Co. (1871), L. R. 6 L. J. Q. B. 293. Ch. 527 ; 25 L. T. 77. (0 Jones v. Broadhurst (1850), 3 304 ACCORD AND SATISFACTION. Beer v. Foakes. Second point of leading case. To an action by several joint creditors accord and satisfaction with any one of them, without the necessity of showing that he had authority from the rest to settle, is an answer (m). And so accord and satisfaction made by one of several parties jointly liable dis- charges all(»). In Beer v. Foakes (o), the principle of Pinnel's case and Cumber v. Wane was discussed. Judgment for a specific sum having been obtained by the plaintiff in an action, an agreement in writing was made between the plaintiff and the defendant whereby, in conside- ration that the defendant would pay part of the sum on the signing of the agreement, and the remainder to the plaintiff or her nominee by equal half-yearly instalments, the plaintiff undertook not to take any proceedings on the judgment. The defendant duly per- formed all the terms of the agreement on his part, but it was held that the agreement was not binding on the plaintiff, there being no consideration for it, and that therefore the plaintiff was entitled to issue execution for interest on the j udgment debt. At common law accord and satisfaction could not be pleaded in answer to an action on specialty, but this was not the rule at equity, and now, the latter view prevailing, accord and satisfaction is a good defence to an action on a deed (p). A point of practice decided in the leading case was that if one party die during a curia advisari vult, judgment may be entered nunc pro tunc. This is on the principle, Actus curiae nemini facit in- juriam(q). See also Ackroyd v. Smithies (1885), 54 L. T. 130; 50 J. P. 358. C. B. 173 ; Randall t). Moon (1852), 12 C. B. 261 ; 21 L. J. C. P. 226. See also Cook v. Lister (1863), 13 C. B. N. S. 543; 32 L. J. C. P. 121. (m) Wallace v. Kelsall (1840), 7 M. & W. 264 ; 4 Jur. 1064. See the recent case of Steeds v. Steeds (1889), 22 Q. B. D. 537 ; 58 L. J. Q. B. 302. (n) Nicholson v. Revill (1836), 4 A. & E. 675; 6 N. & M. 192. (o) (1884), 9 App. Ca. 605 ; 54 L. J. Q. B. 130. This case was distinguished in Bidder v. Bridges (1887), 37 Ch. D. 406 ; 57 L. J. Ch. 300 ; and followed in Underwood v. Underwood, [1894] P. 204 ; 63 L. J. P. 109 ; where a promise to release arrears and future payments of alimony was held not to be sup- ported by a consideration of a sum less than the arrears. ( p) See Steeds v. Steeds, supra. \q) See Turner v. L. & S. W. Ry. Co. (1874), L. R. 17 Eq. 561 ; 43 L. J. Ch. 430. TENDER. 305 Tender. — ♦ — FINCH v. BROOK. (1834) [92.] [1 Bing. N. 0. 253; 2 Soott, 511.] 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 the 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 pro- ducing the money. The question was whether this con- stituted a valid tender, and it was held that it did not, for there was neither production of the money nor dispensation icith production (r). The reason why the law attaches so much importance to the production of the money is that "the sight of it may tempt the creditor to yield." A tender, however, is valid, though there is no Production production, if the creditor dispenses with it ; as, for instance, where dispensed a debtor called on his creditor and said he had 81. 18s. 6d. in his pocket to pay the debt with, whereupon the creditor exclaimed, " You needn't give yourself the trouble of offering it, for Vm not going to take it" (s). But Lord Tenterden, C. J., thought there was not a sufficient tender where the production of the money was prevented by the creditor leaving the room after the debtor had offered to pay it, and whilst he was in the act of taking it from his pocket (t). A valid tender must be unconditional. " If you will give me. a Uncondi- starnped receipt, I will pay you the money" said a debtor once, and tl0ual - he pulled out the money as he spoke. But the tender was held bad (»-) The Court, however, seems to (.«) Douglas v. Patrick (1790), 3 have thought that, if the jury had T. R. 638. chosen to do so, they mi^lit very I Li-.-itln nl-ilc v. Swcpstone well have inferred dispensation. (1828), 3 C. & P. 342. S. C. X 306 TENDER. To or by agent. Whole debt. Current coin. Debt not extin- guished. for the condition (u). A tender made " under protest," is not a con- ditional tender (x). The tender need not be made to the creditor himself. It may be made to an agent authorized to receive payment of the debt (y). Conversely, the tender may be made by an agent of the debtor (z). And so tender to one of several joint creditors, or by one of several joint debtors, is good. The tender must be of the whole debt. But if the creditor's claim consists of a number of distinct items, the debtor may make a good tender of payment of any one of them, provided that he carefully specifies the particular item he wishes to dispose of (a). A tender may, of course, be made of a larger sum of money than the amount of the debt (&), but the debtor must not demand change (c) ; if, however, the creditor does not object to the tender on that account, but for some collateral reason, such as a demand for a larger sum, the tender will be good (d). The tender must be in the current coin of the realm. Gold is good to any amount; but silver is not beyond 40s., nor copper beyond a shilling (e). A Bank of England note payable to bearer is a legal tender for all sums above 51. (/). A tender in country notes or by cheque is good if the only reason given by the creditor at the time for not accepting it is that the amount of the debt is larger (//). It is scarcely necessary to say that the effect of a valid tender is not to extinguish the debt. On the contrary, it is an admission of the contract. But what it does is to put the plaintiff in the wrong so far as his action is concerned. He is exposed as the litigious oppressor, while the defendant stands forth as the virtuous citizen who has all along been ready and anxious to discharge his lia- bilities (h). Accordingly, a valid tender stops the further accrual of interest (i). But the plea of tender must be accompanied by payment into Court of the money tendered (k). {u) Laing v. Meader (1824), 1 C. & P. 257. See, however, Richard- son v. Jackson (1841), 8 M. & W. 298; 9D. P. C. 715. (x) Scott v. Uxbridge and Rick- mansworth Ry. Co. (1866), L. R. 1 C. P. 596 ; 3 L. J. C. P. 293 ; Greenwood v. Sutcliffe, [1892] 1 Ch. 1 ; 61 L. J. Ch. 59. (y) Moffatt v. Parsons (1814), 5 Taunt. 307 ; and see Pinch v. Boning (1879), 4 C. P. D. 143 ; 40 L. T. 481. (s) Read v. Goldring (1813), 2 M. & S. 86. (a) Strong V. Harvey (1825), 3 Bing. 304; 11 Moore, 72; and Hardingham v. Allen (1848), 5 C. B. 793 ; 17 L. J. C. P. 198. (b) Dean v. James (1833), 4 B. & Ad. 546 ; 1 N. & M. 303. (c) Betterbee v. Davis (1811), 3 Camp. 70. (d) Per Lord Abinger, C. B., in Bevans v. Rees (1839), 5 M. & W. 306 ; 3 Jur. 608. (e) 33 Vict. c. 10, s. 4. (/) 3 & 4 Will. IV. c. 98, s. 6. Q) Polglass v. Oliver (1831), 2 C. & J. 15 ; 2 Tyr. 89. (h) Per cur. in Dixon v. Clarke (1848), 5 C. B. 365 ; 16 L. J. C. P. 237. (*) Dentt-. Dunn (1812), 3 Camp. 296. (A) R. S. C, Ord. 22, r. 3 ; ALTERATION OF TERMS RELEASES SURETY. 307 Alteration of Terms between Creditor and Debtor releases Surety. WHITCHER v. HALL. (1826) [93.] [5 B. & C. 269 ; 8 D. & E. 22.] Whitcher agreed to let Joseph Hall have thirty cows for milking at 71. 10s. each per annum, and James Hall became surety for the due payment of the money. By- and-by some of the cows died, and the terms of the letting were changed so that Joseph was to have the milking of twenty-eight cows during one part of the year and of thirty-two during the other. James was not consulted on the subject ; and, indeed, it is difficult to see that the alteration in any way prejudiced him. Bixt although there was thus no substantial alteration of the original terms, yet the Court considered that an alteration was an altera- tion, and that James Hall was thereby released from his suretyship. 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 as to be not worth considering. The man who is kind enough to become surety for a friend undertakes a very thankless office ; and the law is jealously anxious to shield him against fraud and imposition. Whitcher 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 (I). County Court Rules, Ord. 10, r. 20. (1) Kearsley v. Cole (1846), 16 See Griffiths v. School Board of M. & W. 128; 16 L. J. Ex. 115; Ystradyfodwg (1890), 24 Q. B. D. Trice v. Barker (1855), 24 L. J. 307 ; 59 L. J. Q. B. 110. Q B. 130 ; 4 E. & B. 700. X2 308 ALTERATION OF TERMS RELEASES SURETY. True rule stated by Cotton, L.J. Misrepre- sentation or conceal- ment. The law on the subject was lately summed up by Cotton, L. J., as follows : — " The true rule, in my opinion, is that it" there is any agreement between the jjiincipals with reference to the contract guaranteed, the surety ought to be consulted, and that if he has not consented to the alteration, although in cases where it is without 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 whether or not he will consent to remain liable notwithstanding the alteration, and that if he has not so consented he will be discharged (m). But an alteration in the position of a surety brought about by the act of an employer does not discharge the surety, if the act of the employer has been caused by the fraud of a contractor whose honesty the surety has guaranteed (h). Altering the terms is not the only way in which the surety becomes a free man once more. He is always discharged in the following cases : — ■ (1.) If there has been a fraudulent misrepresentation to, or conceal- ment from, him(p). But the creditor is not bound to communicate every circumstance calculated to influence the discretion of the surety in entering into the contract ; what he must disclose is simply any arrangement between himself and the debtor which would make the surety's position different from what he would reasonably expect (p). "The plaintiff and defendant," said Holroyd, J., in the case last referred to, " ivere not on equal terms. The former with the knowledge of a fact which necessarily must have the effect of increasing the re- sponsibility of the surety, without communicating that fact to him, (m) Holme v. Brunskill (1877), 3 Q. B. D. 495 ; 47 L. J. Q. B. 610. See also Taylor v. Bank of New South Wales (1886), 11 App. Cas. 596 ; 55 L. J. P. C. 47. («) See Kingston-upon-Hull Cor- poration v. Harding-, [1892] 2 Q. B. 494 ; 62 L. J. Q. B. 55. (o) Lee v. Jones (1864), 17 C. B. N. S. 482 ; 34 L. J. C. P. 131 ; Phillips v. Foxall (1872), L. R. 7 Q. B. 666 ; 41 L. J. Q. B. 293. (p) Hamilton v. Watson (1815), 12 CI. & Pin. 109 ; Pidcock v. Bishop (1825) , 3 B. & C. 605 ; 5 D. & R. 505 ; and see Byrne r. Muzio (1882), 8 L. R, Ir. 396. ALTERATION OF TERMS RELEASES SURETY. 309 suffers him to give the guarantee. That was a fraud upon the defendant, and vitiates the contract." Moreover, as was said hy the Lord Chancellor, in Owen v. Homan (q) (where the surety was an infirm old married woman, living apart from her husband, and the aunt of the debtor), "without saying that in every case a creditor is bound to inquire under what circumstances his debtor has obtained the concurrence of a surety, it may safely be stated that if the deal- ings are such as fairly to lead a reasonable man to believe that fraud must have been used in order to obtain such concurrence, he is bound to make inquiry, and cannot shelter himself under the plea that he was not called on to ask, and did not ask, any questions on the subject." (2.) If the creditor enters into a binding agreement with the debtor Giving to give him time, unless by such agreement the creditor reserves his rights uae ' against the surety (r). The reason why the surety is discharged in this case is that the creditor by giving time to the debtor has, for the time at least, put it out of the power of the surety to consider whether he will have recourse to his remedy against the principal debtor or not, and because the surety cannot in fact have the same remedy against the principal as he would have had under the original contract. Mere forbearance or laches, however, will not discharge the surety (s). Nor will a contract with a stranger to give time to the principal debtor affect the right against the surety (t). ' ' Where two or more sureties contract severally, the creditor does not break the contract with one of them by releasing the other. The contract remaining entire, the surety in order to escape liability must show an existing right to contribution from his co-surety which has been taken away or inj uriously affected by his release " ( u). (3.) If the -principal debt is released or satisfied. Debt "It may be taken as settled law," said Lord Morris in a recent case (x) in the Privy Council, ' ' that where there is an absolute (rj) (1853), 4 H. L. C. 997; 20 v. Bradford Banking Co., [1894] L. J. Ch. 314. A. C. 586 ; 63 L. J. Ch. 890. (>•) Bees v. Berrington (1795), 2 (t) Lyon v. Holt (1839). 5 M. & Ves. jun. 540 ; Croydon Gas Co. v. W. 250 ; 2 H. & H. 41 ; Fraser v. Dickinson (1876), 2 C. P. D. 46 ; 46 Jordan (1858), 8 E. & B. 303 ; 26 L. J. C. P. 157 ; but see York L. J. Q. B. 288 ; Clarke v. Birley Banking Co. v. Bainbridge (1880), (1889), 41 Ch. D. 422; 60 L. T. 43 L. T. 732; Yates v. Evans (1892), 948. 61 L. J. Q. B. 446 ; 66 L. T. 532. («) Ward v. National Bank of (*) Orme v. Young (1815), 1 New Zealand (1883), 8 App. Ca. Holt, 84 ; Goring v . Edmunds 755 ; 52 L. J. P. C. Go. (1829), 6 Bing. 94 ; 3 M. & P. (x) Commercial Bank of Tas- 259 ; Oriental Financial Corpora- mania v. Jones, [1893] A. C. 313 ; tion v. Overend k Co. (1871), L. R. 62 L. J. P. C. 104. 7 Ch. 142 ; 41 L. J. Ch. 332 ; Rouse 310 ALTERATION OF TERMS RELEASES SURETY. Conside- ration not performed. Surety's interest prejudiced. Continuing guaranties. Heffield v. Meadows. release of the principal debtor, the remedy against the surety is gone because the debt is extinguished, and where such actual release is given no right can be reserved because the debt is satisfied, and no right of recourse remains when the debt is gone. Language importing an absolute release may be construed as a covenant by the creditor not to sue the principal debtor, when that intention appears, leaving such debtor open to any claims of relief at the instance of his sureties. But a covenant not to sue the principal debtor is a partial discharge only, and, although expressly stipu- lated, is ineffectual, if the discharge given is in reality absolute." But it may be mentioned here that when several persons join together in a bond of suretyship, e.g., in the sum of 50?. each for the honesty of a clerk, they are separately liable, so that the pay- ment of 501. by one of them is no answer to an action on the bond against one of the others (y). (4.) If the creditor omits to do something which was the surety's con- sideration for entering on the responsibility. (5.) If the person guaranteed does something distinctly injurious to the interest of the surety ; e.g., if I am surety for the honest services of a clerk, and his master systematically throws temptations in his way (z). But the master's mere passive inactivity will not discharge the surety. If, however, he finds out that the servant has been guilty of dishonesty, he must inform the surety, who may withdraw (a). It often becomes an important and difficult question whether a particular guaranty 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 cir- cumstances, and getting as near as possible to the intention of the parties, the presumption being that it is a continuing guaranty, because " if a party meant to confine his liability to a single dealing, he should take care to say so " (b). A man who had a nephew set- ting up as a butcher gave a cattle-dealer this undertaking : — " 1, John Meadows, of Bariuick, in the county of Northampton, ivill be ansvoerable for 501. sterling that William York, of Stamford, butcher, may buy of Mr. John Heffield, of Donington." The young butcher made payments at various times to Mr. Heffield, amounting to over 90/., but he afterwards failed to meet (»/) Armstrong v. Cahill (1880), 6 L. R. Ir. 440. (z) Smith v. Bank of Scotland (1813), 1 Dow, 272. (a) Burgess v. Eve (1872), L. R. 13 Eq. 450 ; 41 L. J. Ch. 515 ; and see Guardians of Mansfield Union v. Wright (1882), 9 Q. B. D. 683 ; 46 J. B. 200; In re Wolmershausen (1*90), 62 L. T. 541 ; 38 W. R. 537. (b) Ber Lord Ellenborough in Merle v. Wells (1810), 2 Camp. 413. ALTERATION OF TERMS RELEASES SURETY. 3H his engagements ; and the question was whether anything could he 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 amount for which he had undertaken to be liable — the guaranty was at an end. But it was held that, as the object of the guaranty plainly was to keep the young man going as a butcher, it was a continuing guaranty, and Meadows must pay (c). The cases, however, run pretty close, as may be imagined when it is said that the following was held not to be a continuing guaranty : — "I hereby agree to be answerable for the payment of 501. for T. Lerigo, in case T. Lerigo does not pay for the gin he receives from you " (d). A guaranty given to, or for, a firm only continues binding after Guaranties a change in its constitution, when it appears to have been the clear g^ m r or intention that it should so continue (e). The death of the surety does not per se operate as a revocation of Death of a continuing guaranty, but notice to the creditor determines it as sure ^' to future advances (/). But a guaranty, the consideration of which is given once for all (e. g., admission as an underwriting member at Lloyd's), cannot be determined by the guarantor, and does not cease at his death (•). Contribu- A surety is also entitled to call on his co-sureties (whether bound tion. ^ £ ne same instrument or not (/) ) for contribution ; and if there are three co-sureties, of whom one has become insolvent, the surety who has been compelled to pay the debt may come upon the remain- ing solvent surety not merely for an aliquot proportion of the money paid, but for a moiety (to). Besides being entitled to con- tributions from each other, sureties are also entitled to the benefit of all securities which any one of them may have taken (n). And when one of several co-sureties has had judgment against him for the whole of the principal debt, though he cannot obtain contribu- tion against the others until he has actually paid more than his own share (o), he is entitled to a declaration of his right to contri- bution, and to a prospective order that on paying his own share he be indemnified by his co-sureties against further Hability (p). See also the recent cases of Lawes v. Maughan (1884), 1 C. & E. 340; Carter v. White (1883), 25 Ch. D. 666; 54 L. J. Ch. 138; Ashby v. Day (1885), 54 L. J. Ch. 935 ; 54 L. T. 408 ; Oddy v. Hallett (18S5), 1 C. & E. 532 ; and The Mayor of Durham v. Fowler (1889), 22 Q. B. D. 394; 58 L. J. Q. B. 246; Bolton v. Salmon, [1891] 2 Ch. 48 ; 60 L. J. Ch. 239 ; Barber v. Mackrell (1893), 68 L. T. 29; 41 W. E. 341. (k) In re Parker, Morgan v. (m) 36 & 37 Vict. c. 66, s. 25, Hill, [1894] 3 Ch. 400; 64 L. J. sub-s. (11). Ch. 6. But whether the result (») Steel v. Dixon (1881), 17 Ch. would be the same if the creditor D. 825; 50 L.J. Ch. 591 ; Berridge had never proved, and the surety, v. Berridge (1890), 44 Ch. D. 168 ; who had paid the debt, had, in the 59 L. J. Ch. 533. first instance, claimed against his (o) In re Snowden (1881), 17 Ch. co-surety, qucere, see per Davey, D. 44 ; 50 L. J. Ch. 540 ; and see L.J. Davies v. Humphreys (1840), 6 M. (I) Dering v. Winchelsea (1787), & W. 153 ; 4 Jur. 250 ; In re Mac- 1 Cox, 318 ; and see Ramskill v. donald (1888), W. N. 130. Edwards (1885), 31 Ch. Div. 100; (p) Wolmershausen v. Gullick, 55 L. J. Ch. 81. [1893] 2 Ch. 514; 62 L. J. Ch. 773. MATERIAL ALTERATION. 313 Material Alteration Vitiates Written Instrument. MASTER v. MILLER. (1791) [94.] [2 H. Bl. 141 ; 5 T. E. 637.] On March 26th, 1788, Peel and Co., of Manchester, drew a bill for 1,000/. on Miller, payable three months after date to Wilkinson and Cooke. 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 made one or two little alterations with the object of improving the document. March 26th they changed into March 20th; and they inserted June 23rd 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. ALDOUS v. CORNWELL. (1868) [95.] [L. E. 3 Q. B. 573 ; 37 L. J. Q. B. 201.] 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 314 MATERIAL ALTERATION. notes which express no time for payment being payable " on demand." Effect of alteration. Pigot's case. Material alteration vitiates. Suffell V. Bank of England. "Warring- ton v. Early. Vance v. Lowther. Mistake or accident. The law looks with great disfavour on the alteration of written instruments. Even when the alteration is made with the consent of both parties (unless it be merely to correct a mistake and render the document what it has all along been intended to bo), there must be a new stamp just as if it were a new contract (' mu ?* whole debt claimed (c). A refusal to pay (for instance, where the f beino- debtor said, " / know that I owe the money ; hut the bill 1 give is on implied. a threepenny receipt stamp, and I will never pay it") is not good enough (r?) ; and when there is a conditional promise, the creditor must prove the performance of the condition (e). In Green v. Humphreys (/) the letter relied on as taking the debt out of the statute contained the following passage :— ' ' I thank you for your very kind intention to give up the rent of Tyn-y-Burwydd next Christmas, but I am happy to say at that time both principal and interest will have been paid in full." It was held that this would not do for the purpose. " It seems to me," said Bowen, L. J., "that, although there is here an acknowledgment of a debt in a sense, there is not a clear acknowledgment of a debt in such a way as to raise the implication of a promise to pay, but, on the contrary, only in such a way as to exclude the idea of a promise to pay, and to imply that the writer did not undertake to pay." "I think," said Fry, L. J., "that the words of the letter which have been referred to may be fairly paraphrased in this way, 1 1 thank you for your very kind intention to let my wife receive the rents of her estate after next Christmas, but your kindness is apparent and not real, for by next Christmas the debt to satisfy which you have been stopping her rents will have been fully satisfied in some manner or another.' That appears to me to be the best paraphrase which I can give to the sentence in question when I regard the surrounding circumstances of the case, and in that I find no acknowledgment that a debt is due from the writer." The mere sending of an account to a debtor appropriating money j^on- of the debtor, over which the creditor has control, to his debt, and dissent not from which appropriation the debtor does not dissent, does not to acknow- amount to an "acknowledgment" by the debtor within the meaning ledgment. of the statute (y). An " acknowledgment" or promise to pay, if contained in a letter written " without prejudice," does not avail to take the case out of the statute (/*). (c) Smith v. Thome (1852), 18 4 C. P. D. 63 ; 48 L. J. C. P. 43 ; Q. B. 134; 21 L. J. Q. B. 199; Nichols v. Regent's Canal Co. Skeet v. Lindsay (1877), 2 Ex. D. (1894), 63 L. J. Q. B. 641 ; 71 L. T. 314 ; 46 L. J. Ex. 249 ; Quineeyt-. 249, 836. Sharp (1876), 1 Ex. D. 72; 46 L. (/) (1884), 26 Ch. D. 474; 53 J. Ex. 347. L. J. Ch. 625. (d) A'Court v. Cross (1825), 3 (y) In re McHenry, [1891] 3 Ch. Ping. 328 ; 11 Moore, 198 ; and see 290 ; 71 L. T. 146. Humphreys v. Jones (1845), 14 M. (h) lit re River Steamboat Co. & W. 1 ; 11 L. J. Ex. 254. (1871), L. R. 6 Ch. 822; 25 L. T. (e) Moyerhotf r. Froeblich(1878), 319. 318 STATUTE OF LIMITATIONS. When statute begins to run. Sale on credit. Promissory note pay- able on demand. Principal, surety, and co- sureties. An acknowledgment since action brouyht is not sufficient (/) ; nor is an acknowledgment to a stranger, for it must be to the creditor or his agent, to some one who is entitled to receive payment of the debt (A-). Thus, in an action by the indorsees against the maker of a promissory note, after the indorsement and within six years of the commencement of the action, the defendant had made a pay- ment on account of the note to the payee, who had no authority to receive the money on behalf of the plaintiffs ; it was hold that such payment was not sufficient to take the case out of the statute (I). The statute commences to run from the time when the cause of action first accrues (m). Thus, when goods are sold on credit, the six years are counted, not from the date of the sale, but from the time when the credit expires (to). In the case, however, of a promissory note payable on demand, the statute begins to run at once (o). AVhere a sum of money is payable by instalments, and there is an agreement between the debtor and the creditor that, on non-payment of any one of such instalments, the whole shall become due, the statute begins to run from the first default (p). The statute does not commence to run in favour of a person whilst he is beyond seas, notwithstanding that the action is one in which leave to serve the writ out of the jurisdiction could have been obtained under Order XI. of the E. S. C. 1883 (q). In cases between principal and surety, the statute begins to run against the latter from the time of his first payment in ease of the principal. But, as between one co-surety and another, the statute does not begin to run against the surety until he has paid more than (i) Bateman v. Pinder (1812), 3 Q. B. 571 ; 2 G. & D. 790; over- ruling Yea v. Fouraker (1760), 2 Bun. 1099 ; Thornton v. Illing- worth (1821), 2 B. & C. 821 ; 1 D. 6 R. 525. (k) See Grenfell v. Girdlestone (1837), 2 Y. & C. 662 ; Howcutt v. Bonser (1849), 3 Ex. 491 ; 18 L. J. Ex.262; Haydonr. Williams (1830), 7 Bing. 163 ; 4 M. & P. 811 ; God- win v. Culley (1859), 1 H. & N. 373 ; Stamford Banking Co. v. Smith, [1892] 1 Q. B. 765; 61 L. J. Q. B. 105. (/) Stamford Banking Co. v. Smith, supra. (m) Hemp v. Garland (1843), 1 Q. B. 519; 12 L. J. Q. B. 131; Wilkinson v. Verity (1871), L. R. 6 C. P. 206 ; 40 L. J. C. P. 141 ; and Miller v. Dell, [1891] 1 Q. B. 168 ; 60 L. J. Q. B. 104. («) Helps v. Winterbottom(1831), 2 B. & Ad. 131. (o) Norton v. Ellam (1837), 2 M. & W. 161 ; 1 Jur. 133. (p) Hemp v. Garland, supra, followed in Reeves v. Butcher, [1891] 2 Q. B. 509 ; 60 L. J. Q. B. 619. (q) Musurus Bey v. Gadban, [1894] 2 Q. B. 352 ; 63 L. J. Q. B. 621 ; where it was held that the statute does not commence to run in favour of the ambassador of a foreign state whilst he is accredited to this country or during such time after his recall as is reasonably occupied by him in winding up the affairs of his embassy and leaving the country. See, also, 1 & 5 Anne, c. 3, s. 19 (Ruffhead, 1 Anne, c. 16) ; 7 Anne, c. 12, s. 3 ; and Magdalena Steam Navi- gation Co. v. Martin (1859), 2 E. & E. 91. STATUTE OF LIMITATIONS. 319 his proportion of the debt for which he and his co-surety are jointly liable (r). In the case of a contract of indemnity, the statute does not begin Indemnity, to run until the lapse of six years from the actual damnification (s). And, accordingly, where the defendant had obtained from the plaintiff the loan of his acceptance for 40?. payable forty days after date, it was held that the statute began to run from the time the bill was paid by the plaintiff, and not from the time it became due (*). In the recent case of Beck v. Pierce (k), it was held that the Beck v. Statute of Limitations runs in favour of a husband who is sued for the ante-nuptial debts of his wife from the time when such debts accrued against her, and not from the date of the marriage. "Where work is done under a general contract, the cause of action Work accrues, and the statute begins to run so soon as the work is done (as). But where work is done on the terras that it is to be paid for out of a particular fund, the statute does not begin to run until the fund in question has come to the hands of the defendant (y). Notice by a creditor of his claim in answer to advertisements by an executor under 22 & 23 Vict. c. 35, s. 29, does not prevent the Statute of Limitations from running (z). Where money is deposited with a person for safe custody, and not Deposit or by way of loan, as no right of action arises until demand for its return is made, the statute does not begin to run until such demand (a). Persons under the disability of infancy, coverture (b), insanity, or Disabili- ty 6ie//) Re Kensington Station Act (e) Homfray v. Scroope (1849), (1875), L. R. 20 Eq. 197; 32 L. T. 13 Q. B. 509; and Rhodes v. 183. Smethuret (1840), 6 M. & W. 351 ; 1 H. & H. 237. loan. ties. 320 STATUTE OF LIMITATIONS. Deeds. Indian bond sued on in England. Recovery of land. Trustees. When the contract is under seal, the time within which the action rnust be brought is not six but twenty years (/). Specialty debts in India have no higher legal value than simple contract debts, the same period of limitation, viz., three years, barring the remedy for both. But it has been held that, if an action is brought in England on a bond executed in India, the EngHsh Statutes of Limitation apply, and the remedy is not barred till after the lapse of the twenty years (g). A recent statute provides that ' ' no person shall make an entry or distress, or bring an action or suit, to recover any land or rent but within twelve years next after the time at which the right to make such entry or distress, or to bring such action or suit, shall have first accrued to some person through whom he claims ; or if such right shall not have accrued to any person through whom he claims, then within twelve years next after the time at which the right to make such entry or distress or to bring such action or suit, shall have first accrued to the person making or bringing the same"(/i). The usual disabilities are privileged, but thirty years is the utmost limit allowed , notwithstanding the existence of one of them during the whole period. By sect. 7 of the same Act a mort- gagor is barred at the end of twelve years from the time when the mortgagee took possession, or from the last written acknowledg- ment. See also 3 & 4 Will. IV. c. 27. As to how far trustees are affected by the Statute of Limitations, see sect. 8 of the Trustee Act, 1888 (51 & 52 Vict. c. 59) ; and In re Page, Jones v. Morgan, [1893] 1 Ch. 304 ; 62 L. J. Ch. 592 ; In re Gurney, Mason v. Mercer, [1893] 1 Ch. 590 ; 68 L. T. 289 ; Thorne v. Heard, [1893] 3 Ch. 530; 62 L. J. Ch. 1010; Soar v. Ashwell, [1S93] 2 U. B. 390; 69 L. T. 585. (/) 3 & 4 Will. IV. c. 42, s. 3. (/;) Alliance Bank of Simla v. Carey (1880), 5 C. P. D. 429 ; 49 L. J. C. P. 781. (h) 37 & 38 Vict. c. 57, s. 1. See Lyell v. Kennedy (1889), 14 App. Cas. 437 ; 59 L. J. Q. B. 268 ; In re Davis, Evans v. Moore, [1891] 3Ch. 119; 61 L.J. Ch. 85; Warren v. Murray, [1894] 2 Q. B. 648; 64 L.J. Q.'B. 42. ACKNOWLEDGMENT BY JOINT CONTRACTOR. 321 Acknowledgment by Joint Contractor, &c. WHITCOMB v. WHITING. (1781) [97.] [2 Dotjgl. 652.] 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 fine, Mr. Whiting," replied the holder, " but 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 that takes it out of the statute as against you as well as against Mm." 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 there- fore must be bound by it." By 9 Geo. IV. c. 14, partly, and by 19 & 20 Vict. c. 97, s. 14, com- pletely, tlie doctrine of this case was altered ; and a Mr. "Whiting of 1895 would not be prejudiced by the payment or other acknow- ledgment of a joint contractor, but would be able to shelter himself behind the Statute of Limitations. In a recent case (<*), in which the question was whether one of two Godwin r. partners must be presumed, in the absence of proof to the contrary, " arton> to have authority to make a payment on account of a debt duo by the firm, so as to take the debt out of the Statute of Limitations as (0 Godwin v. Parton (1830), 41 Bnausen (1S90), G2 L. T. 541; 33 L. T. 91. See also In re Wolmcr- W. R. 537. S. — C. V 322 DISCHARGE OF SERVANTS. against the other, — held, that he must — Lush, J., said : "The cases 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, though not in fact sufficient to cover the demand, was made on the supposition that it was sufficient, or which was accompanied with expressions or cir- cumstances 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 must, with the assent of the debtor, have been appropriated to the debt sought to be recovered. " Thirdly, since the Mercantile Amendment Act (19 & 20 Vict. c. 97), payment by one of two joint debtors, though 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." In Watson v. Woodman (k), it was held that a payment by one of a firm of partners will renew the liability of all the others, by reason of the agency of a partner to act for the firm : but that a dissolution revokes the agency, and a subsequent payment is in- operative to charge a former partner. Discharge of Servants. [98.] TURNER v. MASON. (1845) [14 M. & W. 112.] Turner was housemaid in the defendant's service. Her mother became ill and likely to die, and Turner asked her master's permission to go and see her. Mason refused it ; so the girl went without it. For this disobedience Mason (k) (1875), L. R. 20 Eq. 721 ; 45 Tucker, [1894] 3 Oh. 429 ; G3 L. J. L. J. Ch. 57. See, however, In re Ch. 737. DISCHARGE OF SERVANTS. 323 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 disobedience, for which her master had a right to dismiss her. Similarly, a master lias been held to be justified in dismissing a Dis- servant where a farm servant refused to -work at dinner time (I), or obedience, refused to work during harvest without beer (m) ; where a sailor refused to work the ship except to an English port (») ; and where the messman of a regiment refused to send up dinner (o). On the other hand, a servant is entitled to disobey unlawful commands. " If the plaintiff's wife," said Parke, B., in one case(p), "had been requested to work during church time [at the trade of a dyer], and had obstinately refused, that would have been to her credit." And occasioned disobedience in matters of trifling importance, such as not answering a bell, or stopping at one hotel when told to stop at another, will not warrant a master in dismissing without notice (7), though, of course, he will take the earliest opportunity of termi- nating so unsatisfactory a connection. In addition to the case of wilful disobedience, a servant may be discharged without wages or notice in the following cases : — (1.) "When he has been guilty of gross moral misconduct. Mis- Of course, morality is matter of degree and opinion ; what a man conduct, of the world would treat lightly, an old maid might consider very wicked. But about some things everybody would agree. Thus, if a servant is in the habit of getting drunk (r), or robs his master (.s), or tries to ravish the cook (t), he can be turned out of the house at once. "Whether a maid-servant can be discharged for pregnancy («), or a man-servant for becoming' the father of a bastard (x), is more doubtful. It is not any excuse that the irnraorality was not in any way connected with the master's business, and could not prejudice (0 Spain v. Arnott (1817), 2 C. & P. 518. Stark. 256. (/') Wise v. "Wilson (1845), 1 C. (»i) Lilley v. Elwin (1818), 1 & K. 6G2. Q. B. 742 ; 17 L. J. Q. B. 132. (*) Baillie v. Kell (1838), 4 Bing. («) Renno v. Bennett (1842), 3 N. C. 638 ; 6 Scott, 379. Q. B. 768. (0 Atkin v. Acton (1830), 4 C. (0) Churchward v. Chambers & P. 208. , 2 F. .V ]'. 229. (") Connors v. Justice (1862), 13 Jacquot v. Bourra (1839), 7 Ir. 0. L. R. 451. Dowl.348; 3 Jur. 776. [x] R. v. Welford (1778), Cald. («/) Callo v. Brouncker (1831), 4 57. v 2 324 DISCHARGE OF SERVANTS. it. But the discovery of a servant's dishonesty in a previous situation is not alone sufficient ground of dismissal (y). The recent case of Pearce v. Foster (z) was an action for wrongful dismissal. The defendants were general merchants and commis- sion agents, and the plaintiff had been their confidential clerk. They dismissed him because they found that he was speculating in a wild sort of way on the Stock Exchange, and, although he had continued to discharge his duties in a thoroughly efficient manner, they did not feel that they could repose further confidence in him. It was held that the defendants were perfectly j ustified in having dismissed him. " If a man," said Grove, J., "goes to literary meetings, or does anything which he fairly may do in his leisure hours, that would not be anything like ground for dismissal ; but a man dealing beyond his means, speculating, as it has been proved, to such an enormous extent, and employing his time in constantly finding out how he may make gains by these speculations in differences, appears to me to be a man who is totally unfit for such an employment as he undertook to carry on, and I have not the slightest doubt that a reasonable and prudent man would never have thought of employing a man in that position. . . . His conduct with regard to the matter and his secrecy — for I am of opinion that it was kept from his employers — was wholly incon- sistent with the nature of the service which he was to perform, and, therefore, if it is necessary to go within the literal words used by learned judges in these cases, I think he was thereby guilty of such moral misconduct as is a good ground of discharge. I am of opinion that it was a breach of moral duty to engage himself in such speculations at such a risk, and that it was incompatible and inconsistent with his employment, and that no employer ought to be expected to keep a servant who so conducted himself. There is no evidence of it, but it would also, in my judgment, tend, and tend very much, to bring the employers' character and business into disrepute, because, if it were known that a clerk in a respect- able firm, doing a large and important business, was perpetually on the Stock Exchange speculating in differences and dealing in this way, it appears to me it was calculated to bring the business into disrepute, and to seriously injure the status of his employers and their business. I have taken time to consider the case, because it appears to me to be quite a new case. There is no case which is directly in point on the subject, and therefore this is a case to some extent primce impressionist (v) Andrews v. Garstin (1861), (z) (183G), 17 Q. B. D. 537; 55 31 L. J. C. P. 15 ; 4 L. T. 580. L. J. Q. B. 306. DISCHARGE OF SERVANTS. 325 It is a good defence to an action for breach of a covenant in an apprenticeship deed by the master to keep, teach, and maintain his apprentice, that the apprentice, while in the master's service, was an habitual thief (a). (2. ) When he does not give proper attention to his master's business. Inatten- If , for instance, a .servant is never found when wanted, and often n " sleeps out without leave, he may be discharged [}>) ; but not for a mere ^ temporary absence producing no serious inconvenience to the master; e.g., if the French teacher returns to school after the holidays a day or two after the time of reassembling, the school business not having been thereby suspended or impeded (c). ' ' It is a question of fact," said Vaughan, J., in a case (d) where the acting manager of Covent Garden theatre brought an action for wrongful dismissal, ' ' whether the plaintiff was so conducting him- self as that it would have been injurious to the interests of the theatre to hare kept him. If he was, I should have no difficulty in saying that it would be good ground of dismissal." (3.) When he is not up to his work. Incom- " The public profession of an art," said Willes, J., in Harmer v. P etence « Cornelius (e), where a man had been engaged as a scene-painter, " is a representation and undertaking to all the world that the pro- fessor possesses the requisite ability and skill. An express promise or express representation in the particular case is not necessary. It may be, that if there is no general and no particular representa- tion of ability and skill, the workman undertakes no responsibility. If a gentleman, for example, should employ a man that is known never to have done anything but sweep a crossing to clean or mend his watch, the employer probably would be held to have incurred all risk himself." So a clerk could not be discharged because he could not drive ; he might fairly reply " non hsec in fcedera veni." Illness, if permanent, is ground for dismissal ; but not if merely temporary (/). (4.) When he claims to be a partner. Claim to The common sense of this ground of dismissal is obvious. By " e P £Lrtner - claiming to be a partner the servant has put himself in a position inconsistent with that in respect of which he claims wages (g). (a) Learoyd v. Brook, [1891] 1 (d) Lacy v. Osbaldiston (1837), Q. B. 4151 ; 60 L. J. Q. B. 373. 8 C. & P. 80. {b) Robinson v. Hindman (1800), (e) (1858), 5 C. B. N. S. 236 ; 28 3 Esp. 235. See also Boston Deep L. J. 0. P. 85. Sea Co. v. Ansell (1888), 39 Ch. D. (/) Cuckson v. Stones (1859), 1 339 ; 59 L. T. 3-15. E. & E. 248 ; 28 L. J. Q. B. 25. (c) Fillieul v. Armstrong (1837), (ff) Amor v. Fearon (1839), 9 A. 7 A. & E. 557 ; 2 N. & P. 400. ' & E. 548 ; 1 P. & D. 398. 326 DISCHARGE OF SERVANTS. Discharged servant's right to wages. Notice. So, too, a servant may be dismissed for trying to dissuade his master's customers or clients from dealing with him (//). Although the master may not have assigned any one of theso reasons at the time of the dismissal, and may not even have known that such reason existed, he is not thereby precluded from relying on one of them when the servant brings his action for wrongful dismissal (/). But if a master condones an act of misconduct which would have justified him in discharging his servant, he cannot afterwards discharge him for the same act (/«•). A servant discharged for an act of misconduct does not forfeit his title to ivages already accrued due. If a man, for instance, is engaged at a salary of 50/. a month, there is a vested right, which cannot be affected by subsequent misconduct, to the 50/. at the end of each month (/). The terms of the hiring, however, may have disturbed this right (m). As to wages accruing but not yet accrued due, a servant discharged for misconduct cannot recover anything for the portion of the term he has served. A word may be said as to the notice which servants are entitled to. If the hiring is a general one, it is presumed to be for a year, and the servant cannot be dismissed (except, of course, for miscon- duct) till the year has expired (n). Custom and special circum- stances, however, may rebut this presumption. Thus, if the wages are payable weekly, it may be found a weekly hiring, and a week's notice is sufficient (o). A clerk can be discharged with three months' notice, and a menial servant with one. The term ' ' menial servant " has been held to include a head gardener residing in a detached house in his master's grounds (/»), and a huntsman (q) ; but not a governess (?•). In the case of an advertising agent, a month's notice was found to be sufficient (s). In Tibert v. Eastern Telegraph Co. (t), the plaintiff was a stationery clerk in a telegraph office at a salary of 135/., payable fortnightly. On its being left to the jury to say what was a reasonable notice to a person in his (/;) Mercer v. Whall (1845), 5 Q. B. 447; 14 L. J. Q. B. 267. (i) Bidgway v. Hungerford Market Co. (1835), 3 A. & E. 171 ; 4 N. & M. 797. (k) Per Blackburn, J., in Phillips v. Eoxall (1872), L. E, 7 Q. B. 666; 41 L. J. Q. B. 293. (/) Button v. Thompson (1869), L. R. 4 C. P. 330 ; 38 L. J. C. P. ■>••>--, (in) See Walsh v. Waller (1874), L. R. 9 Q. B. 367 ; 43 L. J. Q. B. 102. (>/) Buckingham v. Surrey Canal Co., YV. N. (f882), p. 104. (o) Baxter v. Nurse (1844), 6 M. & G. 935 ; 13 L. J. C. P. 82. (p) Nowlan v. Ablett (1835), 2 C. M. & R. 54 ; 5 Tyr. 709. (?) Nicholl v. Greaves (1864), 17 C. B. N. S. 27 ; 33 L. J. C. P. 259. (/•) Todd v. Kerrich (1852), 8 Ex. 151 ; 22 L. J. Ex. 1. (s) Hiscox v. Batchellor (1867), 15 L. T. 543. (t) (1S83), 1 C. &E. 17. CONTRACT TO MARRY. 327 position, they found that a month was. An indefinite hiring by piece-work cannot be considered a yearly hiring (m). It is to be observed that a servant wrongfully dismissed is not to Must try to receive as a matter of course his full wages for the unexpired term. f m pi ov . The amount is to be cut down by his chances of getting other merit, employment, and he is expected to do his best to get such other employment (x). As to the measure of damages recoverable by a servant who has been wrongfully dismissed, the recent case of Maw v. Jones (1890), 25 Q. B. D. 107 ; 59 L. J. Q. B. 542, should be referred to. Tn Gordon v. Potter {y), it was held that a domestic servant (a cook accused of drunkenness) discharged without reason was entitled to the wages accruing up to the time of her discharge, and to a calendar month's wages in addition, but not to board wages for the month. As to the master's right to bring an action against his servant Wrongful for improperly quitting the service, see Lees v. Whitcomb (1828), f S ™ a S s S ^ r . 5 Bing. 34 ; 3 C. & P. 289 ; Messiter v. Bose (1853), 13 0. B. 162 ; 22 L. J. C. P. 78 ; and Holmes v. Onion (1857), 2 0. B. N. S. 790; 26 L. J. C. P. 261. As to his right to sue a third person who Seduction interrupts the relation, see Terry v. Hutchinson, post, p. 425 ; ° servan • and Lumley v. Gye, post, p. 491. Contract to Marry. ATCHINSON v. BAKER. (1797) [99.] [Pease, Add. Ca. 103.] Mrs. Baker yielded to the persuasions of Mr. Atchinson, and promised to marry him. When the promise was made the plaintiff was apparently in good health, but the defendant afterwards discovered that he was suffering from an ahscess, and refused to marry him. Mr. Atchin- M H v. Woodhurst (1818), 1 and see Eeid v. Explosives Co. B & Aid 325. (1887), 19 Q. B. D. 264 ; 50 L. J. (x) Hartland V. General Ex- Q. B. 68, 388. change Bank (1806), 14 L. T. 863 ; (y) (1859; , 1 F. & F. 644. 328 CONTRACT TO MARRY. son 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." In spite of the dictum just quoted, it is doubtful if a defendant can ever get out of his promise to marry by disparaging himself. Hall r. l n Hall v. Wright (z) the defendant 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 totally unfit for marriage. But the judges festively told him that perhaps the lady might like to be his widow, and that his plea was no answer to the action. To get out of his promise the defendant should level his abuse, not at himself, but Defences to at the plaintiff. If, for example, after he has given his promise he action. discovers (and evidence of general reputation is admissible) (a) that the plaintiff is a person of poor morality (b), or if the promise was induced by the plaintiff's material misrepresentations as to her family, position, or previous life (c), he has a good defence. But it will not be a defence to show that at the time he promised to marry the plaintiff he did not know that she had been in an asylum (cZ), or engaged to another man (e). Most of the defences which are open to men, are open to women too ; but, of course, it would be necessary for a woman defendant to fix the plaintiff with much more than mere sexual immorality before she would be entitled to disregard her promise. It will be a good defence, also, to an action against a woman that, after she had made the promise, (z) (1858), E. B. & E. 746 ; 29 (c) Wharton v. Lewis (1824), 1 L. J. Q. B. 43. C & P. 529. (a) Eoulkes v. Sellway (1800), 3 (d) Baker v. Cartwright (1861), Esp. 236. 10 C. B. N. S. 124 ; 30 L. J. C. P. (b) Irving v. Greenwood (1824), 364. 1 C. & P. 350. (e) Beachey v. Brown (1860), E. B. & E. 796 ; 29 L. J. Q. B. 105. CONTRACT TO MARRY. 329 the plaintiff manifested a violent temper, and threatened to ill-use her(/). Another defence to an action for breach of promise is that the Exonera- ting was off. This exoneration from the promise may be implied 10n ' from the conduct of the parties ; if, for instance, there has been neither intercourse nor correspondence for a year or two, the jury would naturally draw the inference that there was an end of the engagement, even though the amorous letters were not returned (g). A promise to marry need not be in writing (/;), but the plaintiff's testimony must be corroborated by some other material evidence (*'). Not long ago a woman overheard a conversation between her sister Corrobora- and a man, in the course -of which the sister exclaimed, " You always promised to marry me, but you never keep your ivord." Instead of indignantly denying that he had ever made such a promise, the man remained silent. This eavesdropper's evidence was held suffi- ciently " corroborative " in the action which her sister soon after- wards brought (A 1 ). But the mere fact that the defendant did not answer letters written to him by the plaintiff, in which she stated that he had promised to marry her, is no evidence corroborating the plaintiff's testimony in support of such promise, within the meaning of 32 & 33 Vict, c. 68, s. 2 (J). A married man may be sued on a promise to marry, if the woman Promise by did not know he was married (m). married v ' . man An infant may sue, but cannot be sued for breach of a promise actionable. to marry. In order to bind an infant after attaining majority, Infants, there must be a new promise as distinguished from a mere ratifica- tion of the promise made during infancy (n). An action for breach of promise of marriage will lie by or against the personal representatives of the party to or by whom the pro- mise was made, provided special damage to the plaintiff's estate, contemplated by both parties at the time of the promise, is proved (o). (/) Leeds v. Cook (1803), 4 Esp. («) See the Infants' Relief Act, 258. 1874 ; Coxhead v. Mullis (1878), 3 (a) Davis v. Bomford (I860), G C. P. D. 439 ; 47 L. J. C. P. 761 ; II. & ST. 245 ; 30 L. J. Ex. 139. Northcoto v. Doughty (1879), 4 (h) Harrison v. Page (1G99), Ld. C. P. D. 385 ; Ditcham v. Worrall Kaym. 387. (1880), 5 C. P. D. 410 ; 49 L. J. (i) 32 & 33 Vict. c. 68, s. 2. C. P. 688; Holmes v. Brierley (/;) Bessela v. Stern (1877), 2 C. (1888), 36 W. R. 795. P. D. 2G5 ; 40 L. J. Ch. 407. (o) Chamberlain v. Williamson (A Wiedemann fl.Walpole, [1891] (ISM), 2 M. \- S. ins ; Finlay r. 2 Q. B. 534 ; 60 L. J. Q. B. 702. Chirney (1888), 20 Q. B. D. 494 ; (>») Wild v. Harris (1849), 7 C. B. 57 L. J. Q. B. 247. 999 ; 18 L. J. C. P. 297. 330 SUING BEFORE THE DAY OF PERFORMANCE. Damages. Fancy damages may bo given in an action for breach of promise ; e.(j., the defendant's pecuniary position, and the girl's wounded feelings, may be taken into account (p). In fact, the measure of damages is rather as if the action were in tort than in contract. The Foreign Marriage Act, 1892 (oo & 56 Vict. c. 23), consoli- dates the enactments relating to the marriage of British subjects outside the United Kingdom. Suing before the Day of Performance. [100.] HOCHSTERr. DE LA TOUR. (1853) [2 E. & B. 678 ; 22 L. J. Q. B. 455.] Mr. De la Tour, meditating a visit to the Continent, 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 Hochster he did 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 con- tract 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 contract can be brought till the day of performance arrives. But if one of the parties puts it out of his power to perform it, or ex- pressly renounces the contract, the day of performance need not be waited for (q). {p) Smith v. Woodfine (1857), 1 331 ; 35 L. J. C. P. 191. C. B. N. S. 660; and Berry v. (•), where goods were to be delivered by the defendant to the plaintiff in twelve equal monthly parcels, it was held that the refusal, only, of (>•) Short v. Stone (1846), 1 Q. B. anticipatory breach of contract ap- 371 ; 15 L. J. Q. B. 143. plies to a covenant in a lease con- (*) Frost v. Knight (1872), L. R. taming many covenants, or to any 7 Ex. Ill ; 41 L. J. Ex. 7/ .//'/'. p. 253. quence being that a bill discounter (A) (is;:; , I,. R. 7 C. V. 583 ; 8 refused to deal any longer with the C. P. 131 ; 42 L. .J. C. 1'. 59 ; and plaintiff's firm. see Morris v. Loud. & West. Bank 336 MEASURE OF DAMAGES IN CONTRACT. Cory v. Thames Ironworks Company. Special circum- stances known to party breaking and damage flowing naturally from breach. Qualifica- tion of third rule. the day on which they were received, and it was held that, under the circumstances, the defendants were not liable for the special loss which had arisen. In another case(r), this rule came under consideration in a some- what anomalous state of circumstances, the parties not having in contemplation the same use for the article to be supplied, which was of a novel character. The defendants agreed to sell to the plaintiff the hull of a floating boom derrick and deliver it at a time fixed. They believed that the plaintiff wanted it as a coal- store, but, as a matter of fact, he intended to use it for the purpose of transhipping coals from colliers into barges. The former was the most obvious use to which such a vessel would be applied, and the defendants had no notice or knowledge of the special object for which it was purchased. The defendants being late in their delivery of the derrick to the plaintiff, were held liable for the loss of such profits as would have been made during the period of delay by the use of the vessel as a coal-store, but not for any further loss or damage that had occurred. (3.) Where the special circumstances are known to the person who breaks the contract, and the damage complained of flows naturally from the breach under those special circumstances, such special damage is recoverable. But this rule cannot, it seems, be received without the important qualification that (k) "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 condition attached to it." And this expression of opinion was subsequently confirmed byWilles, J., in the case of Home v. Midland Railway Co. (/), just referred to, and also by the observations of Blackburn, J., when giving judg- ment in the same case. That learned judge remarked, " In Hadley v. Baxendale it is said that, if special notice be given, the damage is recoverable, though 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 (i) Cory v. Thames Ironworks Co. (1868), L. R. 3 Q. B. 1S1 ; 37 L. J. Q. B. 68. (/,) Per Willes, J., in British CJumbia Saw Mill Co. v. Nettle- ship (1868), L. R. 3 C. P. 499 ; 37 L. J. C. P. 23o ; and see Hawes r. S. E. Ry. Co. (188 I), 54 L. J. Q. B. 179 ; 52 L. T. oil. (/) Supra. MEASURE OF DAMAGES IX CONTRACT. 337 information 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, though I confess that at present I think it a mistake." Take the case of a defendant who has no option of refusing the contract, and is not at liberty to require a higher rate of remunera- tion ; can it be contended that the mere fact that he proceeded in the contract with knowledge of the special circumstances in itself gives rise to an undertaking to incur a liability for special damages ? As, for example, where a railway passenger, on buying his ticket, informs the clerk of some particular loss that would arise on his being late. Under the circumstances last supposed the learned author of Mayne on Damages says (m) that ' ' Even if there were an express contract by the defendant to pay for special damages, it might bo questioned whether such a contract would not be void for want of consideration." There is, however, a case («) which deserves careful attention, and which at first sight appears to militate against the views that have just been expressed. An action was brought by a cattle-spice Spice manufacturer against a railway company for not delivering spice ^ocTlate samples, &c. , which the plaintiff had been exhibiting at a cattle- for show, show at Bedford, in time for another show at Newcastle-on-Tyne. The plaintiff had not distinctly informed the defendants that the samples were intended for exhibition at the Newcastle show, but he had addressed them, " The Show Ground, Newcastle-on-Tyne," and had stated that they must be there on Monday certain, and there could really have been no doubt as to what the man's purpose was. The plaintiff was held entitled to recover damages for the loss which he had sustained by reason of the delay. The learned author to whom reference has just been made observes on this case (o) : "Notwithstanding some expressions in the judgment, it appears that the case really came under the first rule in Hadley v. Baxen- dale, and not under the third. Goods are consigned with a contract that they are to be delivered at a particular place on a particular day. The contract is broken. What are the damages ? They aro the damages naturally arising from the non-arrival of the particular (m) 5th ed. p. 41. G. E. Ry. Co. (1887), 19 Q. B. D. (») Simpson v. L. & N. W. Ry. 30 ; 56 L. J. Q. B. 1 V2. Co. (1876), 1 Q. B. D. 274 ; 45 L. (o) Maync on Damages, 5th ed. J. Q. B. 182. See also Schulze v. pp. 37, 38. S. — C. / 338 MEASURE OF DAMAGES IN CONTRACT. Landlord and tenant. Interest. sort of goods. The evidence as to knowledge simply went to show that the defendants knew what sort of goods they were. A carrier will be liable to different damages according as he delays a basket of fish or a basket of coals, for the simple reason that delay frustrates the object of sending the fish, but not that of sending the coals. Here the plaintiff claimed no special damages, but merely general damages for the failure of his object in sending tho goods." Where a lessee has covenanted to leave the premises in repair at the end of the term, the rule as to the measure of damages, on breach of the covenant, is that the damages are such a sum as it will cost to put the premises into the state of repair in which the lessee was bound to leave them (p). Under a covenant to keep a house in "good tenantable repair," the tenant's obligation is to keep the premises in such repair as, having regard to the age, character, and locality of the house, would make it reasonably fit for the occupation of a tenant of the class who would be likely to take it (q). At common law, the creditor, as a general rule, is not entitled to interest. " It is now established, as a general principle, that interest is allowed by law only upon mercantile securities, or in those cases where there has been an express promise to pay interest, or where such promise is to be implied from the usage of trade, or other cir- cumstances " (?-). There is no implied promise to pay interest on a sale of goods simpliciter, and it makes no difference that the sale is on credit, or that a particular date is fixed for payment (s). But a contract to pay interest on the price will be implied when the goods are to be paid for by bill, which is not given, and from the date when the bill would have matured (t). By statute, interest is recoverable in certain cases. It is enacted by 3 & 4 Will. IV. c. 42, s. 28, "that upon all debts or sums certain, payable at a certain time or otherwise, the jury, on the trial of any issue, or on any inquisition of damages, may, if they (p) See Joyner v. Weeks, [1891] 2 Q. B. 31 ; 60 L. J. Q. B. 510, where it was held that this rule is not affected hy the fact that before the expiration of the term the lessor has relet the premises on the expiration of the term to a third person who has covenanted to alter and rebuild the premises. And see Henderson v. Thome, [1893] 2 Q. B. 164 ; 62 L. J. Q. B. 586. (.?) See Proudfoot v. Hart (1890), 25 Q. B. D. 42; 59 L. J. Q. B. 389. (>•) Per Abbott, C.J., in Higgins v. Sargent (1823), 2 B. & C. 348. And see per Hall, V.-C, in Hill v. South Staffordshire By. Co. (1874), L. R. 18 Eq. 167 ; 43 L. J. Ch. 556 ; and per Lindley, L. J., in L. C. & D. By. Co. v. S. E. By. Co., [1892] 1 Ch. 140; 61 L. J. Ch. 294. (s) Gordon r. Swan (1810), 2 Camp. 429; 12 East, 419; Calton v. Bragg (1812), 15 East, 223. {t) Marshall v. Poole (1810), 13 East, 98 ; Farr v. Ward (1837), 3 M. & W. 25. MEASURE OF DAMAGES IN CONTRACT. 339 shall think fit, allow interest to the creditor, at a rate not exceeding the current rate of interest, from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time, or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the term of payment (u). Provided that interest shall be payable in all cases in which it is now payable by law." And sect. 29 provides that " The jury, on the trial of any issue, or on any inquisition of damages, may, if they shall think fit, give damages in the nature of interest over and above the value of the goods at the time of the conversion or seizure, in all actions of trover or trespass de bonis asportatis, and over and above all money recoverable in all actions on poHeies of insurance made after the passing of this Act " (x). Other cases on "measure of damages" which may be consulted Other are Hammond v. Bussey (1887), 20 Q. B. D. 79 ; 57 L. J. Q, B. 58 ; cases - Wigsell v. School for Indigent Blind (1882), 8 Q. B. D. 357; 51 L. J. Q. B. 330 ; Thol v. Henderson (1881), 8 Q. B. D. 457 ; Lilley v. Doubleday (1881), 7 Q. B. D. 510; 51 L. J. Q. B. 310 ; Ashdown v. Ingamells (1880), 5 Ex. D. 280 ; 43 L. T. 424 ; Jenkins v. Jones (1882), 9 Q. B. D. 128; 51 L. J. Q. B. 438 ; Baldwin v. L. C. & D. By. Co. (1882), 9 Q. B. D. 582; Cassaboglou v. Gibb (1883), 11 Q. B. D. 797 ; 52 L. J. Q. B. 538 ; Meek v. Wendt (1888), 21 Q. B. D. 126; 59 L. T. 558; Grebert-Bognis v. Nugent (1885), 15 Q. B. D. 85 ; 54 L. J. Q. B. 511 ; The Notting Hill (1884), 9 P. D. 105 ; 53 L. J. P. 56 ; Skinner v. City of London Marine Insurance Corporation (1885), 14 Q. B. D. 882 ; 54 L. J. Q. B. 437 ; Whitham v. Kershaw (1885), 16 Q. B. D. 613; 54 L. T. 124; Kiddle v. Lovett (1885), 16 Q. B. D. 605 ; 34 W. B. 518 ; and Tredegar Iron and Coal Co. v. Gielgud (1883), 1 C. & E. 27. (u) See Harper t>. Williams (1843), and Rhymney Ry. Co. v. Rhymney 4 Q. B. 219, 224; 12 L. J. Q. B. Iron Co. (1890), 25 Q. B. D. 146; 227 ; Edwards v. G. W. Ry. Co. 59 L. J. Q. B. 414, a.s to what is a (1851), 11 C. B. 588; 21 L. J. C. sufficient "demand." P. 72 ; Hill v. South Staffordshire (%) This statute was said hy Ry. Co. (1874), 18 Eq. 154 ; 43 L. Thesiger, L. J., in Webster v. J. Ch. 556 ; and L. C. & D. Ry. British Empire Assurance Co. Co. v. S. E. Ry. Co., [1892] 1 Ch. (1880), 15 Ch. D. at p. 178; 49 120; 61 L. J."Ch. 294, as to the L. J. Ch. 769, to bo merely meaning of the word "certain." declaratory of the common law. And see Harper fl. Williams, supra; See generally on the question of Mowatt v. Londesborough (1854), interest, Mayne on Damages, 5th 4 E. & B. 1 ; 23 L. J. Q. B. 38 ; ed., Chap. IV. pp. 156 et scq. z2 3 10 PENA I. TIES A ND LIQUIDA TED DAM Ad EH. Penalties and Liquidated Damages. — ♦ — [102.] KEMBLE r. FARREN. (1829) [6 Bing. 141 ; 3 M. & P. 425.] Sometliing more than half a century ago an actor and a manager entered into 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 agree- ment 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 1,000/., to which sum it was thereby agreed that the damages sustained 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 1,000/. mentioned in the agreement, although he was quite pre- pared 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 1,000/. should instantly become payable on the happening of any breach, however trifling (y) . Question It is not always, however, that a Court will interfere in this way of mten- an( j p ronounce what the parties — who ought to know hest— call (,?/) See 8 & !) Will. III. e. 11, s. 8. PENALTIES AND LIQUIDATED DAMAGES. Mi liquidated damages to be really only a penalty. If the agreement, for instance, were not, as it was in Kenible v. Farren, one contain- ing various stipulations of various degrees of importance, but if tbere were only one event upon wbicb tbe money was to become payable, Only one or if there were several events, but tin: damages impossible accurately to eveut - measure, then no attempt to turn liquidated damages into a mere ^f^sSble penalty would be successful ; and in such cases it would be of no to measure, consequence whether in the contract the sum to be paid in the event Name im- of breach was called "a penalty" or "liquidated damages," because ma ena ' the Court will look to the meaning and effect of the contract itself as disclosing the intention of the parties, and, having satisfied itself on that point, does not care much for the term they happen to have selected from Johnson's Dictionary (z). Illustrations of the unim- portance of the language used may be found in the recent cases of Catton v. Bennett (1884), 51 L. T. 70; and Elphinstone v. Monk- land Iron Co. (1886), 11 App. Cas. 332 ; 35 W. E. 17. About forty years ago, two London solicitors dissolved partner- Gals- ship, one of them covenanting not to practise during the next seven S°. rt i?' l '" years within fifty miles of Ely Place, nor interfere with or influence any of the clients of the late co-partnership ; if he in any way infringed the covenant, he was to pay 1,0007. " as and for liquidated damages, and not byway of penalty." On breach of this covenant, it was held that, no matter how slight the damage was, the whole 1,000?. had to be paid (a). " Parties," said Parke, B., " are bound by their contracts, if those contracts be clearly made. It is clear that the defendant stipvdated to pay 1,000/. for the breach of any one of the conditions mentioned ; and they are such that the damage arising from the violation of any of than cannot be exactly estimated beforehand." In Sainter v. Ferguson (b) the facts were very similar, but the Sainter v. word "penalty" was used in specifying the sum to be paid, and Ferguson. there was only one event on which the money was to become pay- able. " We can only give effect," said the Court " to the contract of the parties by holding the 500/. to be liquidated damages, and not a mere penalty." In the recent case of Barton v. Capewell Co. (c), under an agree- Barton v. ment for the sale of a patent, the sum of 1,400/. had been paid as Capewell (z) Per Chambre, J., in Astli v (a) Galsworthy v. Strutt (1848), v. Weldon (1801), 2 B. & P. 354 ; 1 Ex. 6,59 ; 17 L. J. Ex. 226. and see Sparrow v. Paria (1862 , 7 (6) (1849), 7 G. B. 716 ; 18 L. J. H. & N. 594 ; 31 L. J. Ex. 137 ; C. P. 217. and Law !•. lteddit.h Loral Moanl, (c) (1893), 68 L. T. 857; 5 K. [1892] 1 Q. B. 127 ; 61 L.J. Q. B. 374. 172. 342 PENALTIES AND LIQUIDATED DAMAGES, Election on breach. Equitable relief. Protector Loan Co. r. Grice. part of the purchase-money ; the balance was to be paid in three equal instalments at certain specified times, and in case of default by the purchaser in paying any of the instalments, ' ' all payments made shall be absolutely forfeitod to the vendor as and by way of liquidated damages." Default having been made in paying the first instalment, the Court held that the vendor could not retain the 1,400/., as that sum was in reality a penalty and not liquidated damages. It is to be observed that when a covenant is secured by a penalty, the obligee on breach has an election. Either he may go for the penalty and be satisfied with that, or he may sue on the covenant and recover more or less according to his merits. In the former case, the contract is rescinded, and the penalty becomes the debt in law (d). On the subject of equitable relief against penalties, the reader is referred to Peachy v. Somerset (e), Sloman v. "Walter (/), and the recent case of the Protector Loan Co. v. Grice () And sec IVndarves v. Monro, Ch. 426, where it was held that an [1892] 1 Ch. 611 ; 61 L. J. Ch. 19 1. easement of ancient lights will not (k) Mooro v. Rawson (1824), 3 necessarily be treated as abandoned B. & C. 332; 5 D. & R. 234; Stokoo because the old building lias been v. Singers (1857), 8 E. & B. 31 ; 26 pulled down and another sub- L. J. Q. B. 257. Btituted. See also Bullers v. [I] Ladyman v. Grave (1871), Dickinson (1885), 29 Ch. L>. 155; L. R. 6 Ch. 703 ; 25 L. T. 52. S. — C. A A from grant. 354 ANCIENT LIGHTS. " There can be no doubt that the law as laid down by Palmer v. Fletcher (m) is the law of the present day ; that is, that -where a man grants a house in which there are windows, neither he nor anybody claiming under him can stop up the windows or destroy the lights. That is based on the principle that a man shall not derogate from his own grant ; and it makes no difference whether he grants the house simply as a house, or whether he grants the house ivith the windoius or the lights thereto belonging. In both cases he grants with the apparent easements or quasi easements. All that is now, I take it, settled law. " I take it also that it is equally settled law that if a man who has a house and land grants the land first, reserving the house, the purchaser of the land can block up the windows of the house. "Then there comes a third case. Supposing the owner of the land and the house sells the house and the land at the same moment, and supposing he expressly sells the house with the lights, can it be said that the purchaser of the land is entitled to block up the lights, the vendor being the same in each case, and both pur- chasers being aware of the simultaneous conveyances ? Certainly not " (w). The maxim that a grantor shall not derogate from his grant received an important limitation in the recent case of Birmingham Banking Co. v. Boss (o), where it was held that a grantee of a house was not entitled to claim an easement of light to an extent inconsistent with the intention to be implied from the circumstances existing at the time of the grant and known to the grantee (_»). Air. Though the two subjects are often incorrectly treated as if they rested on the same principles, a right to air is quite distinct from a right to light. In Webb v. Bird (q) it was held that the owner of a windmill could not, under sect. 2 of the Prescription Act, prevent the owner of adjoining land from building so as to interrupt the (m) (1675), 1 Sid. 167, 227. The v. Edwards, [1893] 2 Ch. 146 ; 62 principle of this case is applicable L. J. Ch. 378. not only to conveyances for valuable (o) (1888), 38 Ch. D. 295; 57 consideration, but also to devises L. J. Ch. 601. and voluntary conveyances : see (p) See also Myers v. Catterson Pbillips v. Low, [1892] 1 Ch. 47; (1889), 43 Ch. D. 470; 62 L. T. 61 L. J. Ch. 44. 205 ; Wilson v. Queen's Club ()/) Per Jessel, M. R., in Allen v. [1891] 3 Ch. 522 ; 60 L. J. Ch. 698 Taylor (1880), 16 Ch. D. 355; 50 Corbett v. Jonas, [1892] 3 Ch. 137 L. J. Ch. 178 ; and see Swans- 62 L. J. Ch. 43. An instructive borough v. Coventry (1832), 9 Bing. article on "Quasi Grant of Ease- 305; 2 M. & S. 362; Compton ments" in the "Law Quarterly r. Richards (1814), 1 Price, 27; Review" (1894), page 323, may be "VVheeldon v. Burrows (1879), 12 referred to on this subject. Ch. D. 31; 48 L. J. Ch. 853; (l L. J. Ch. 154. of the person creating it renders 358 SIG UTERE TUG UT ALIEN UM NGN LJSDAS. The mound. The cow that swallowed the wire. Yew trees. Thistles. Tigers as pets. well on his own land, the plaintiff's land being at a lower level than the defendant's. The defendant turned sewage from his house into his well, and so polluted the water that percolated underground from the defendant's to the plaintiff's land, and consequently the water which came into the plaintiff's well from such percolating water when he used his well by pumping, came adulterated with the sewage from the defendant's well. It was held that the plain- tiff had a right of action against the defendant for so polluting the source of supply, although, until the plaintiff had appropriated it, he had no property in the percolating water under his land, and although he appropriated such water by the artificial means of pumping. In Hurdman v. The North Eastern Eailway Company (c), the defendants were held responsible for having on their own land built an artificial mound so close to the plaintiff's house as to render it datnp and unhealthy by the rain oozing through. Firth v. The Bowling Iron Co. (d), where the plaintiff's cow had swallowed a bit of decayed wire which had fallen from the defendants' fence and been poisoned by it, is to the same effect ; and so is Crowhurst v. The Amersham Burial Board (e), where the plaintiff's horse had been poisoned by eating of a yew tree which the defendants had planted so near their boundary that it projected into the adjoining meadow of the plaintiff. But in Wilson v. Newberry (/), it was held that a man is not liable to an action merely because by some unexplained means, the leaves from a yew tree growing on his land get on to his neighbour's land, and are there eaten by, and poison, his cattle. Nor is a man, having a yew tree upon his land, but being under no obligation to fence against his neighbour's cattle, liable for damages caused to such cattle by eating of the yew tree ivhen trespassing on his land (g). In the recent case of Giles v. Walker (h), an occupier of land neglected to cut thistles growing naturally on his land, with the result that the seeds were blown on to his neighbour's land and caused damage ; and it was held that he was not liable, on the ground that he was under no duty towards his neighbour to cut down the thistles, as they were the natural growth of his land. 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 anyone, it is not necessary for the (c) (1878), 3 C. P. D. 168 ; 47 L. J. C. P. 368. (d) (187S), 3 C. P. D. 254; 47 L. J. C. P. 358. (*) (1878), 4 Ex. D. 5 ; 48 L. J. Ex. 109. (/) (1871), L. R. 7 Q. B.31; 41 L. J. Q. B. 31. ( precaution being really necessary to his safety. By 28 & 29 Vict. c. 60, s. 1, it is enacted that "the owner of Dog not every dog shall be liable in damages for inj ury done to any cattle even to one or sheep by his dog ; and it shall not be necessary for the party worry, seeking such damages to show a previous mischievous propensity in such dog, or the owner's knowledge of such previous propensity, or that the injury was attributable to neglect on the part of such owner." Horses are " cattle " within the section (s). Generally, no action will lie against the owner of a dog which (i) (1846), 9 Q. B. 101 ; 16 L. J. (o) Worth v. Gilling (1866), L. R. Q. B. 64. 2 C. P. 1. (k) Filburnf. People's Palace Co. (p) Beck i\ Dyson (1815), 4 Camp. (1890), 25 Q. B. D. 258 ; 59 L. J. 198. Q. B. 471. (. Lea (1874), L. R. L. J. Q. B. 285. 362 PROXIMATE CAUSE. Proximate Cause. [108.] SCOTT v. SHEPHERD. (1773) [2 W. Bl. 892.] 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 ginger- bread seller, who passed it on in precisely the same way ; till at last it burst in the plaintiff's face and put his 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 though 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. [10 9.] SHARP v. POWELL. (1872) [L. E. 7 C. B. 253; 41 L. J. C. P. 95.] 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. In warm weather no harm would have come of this PROXIMATE CAUSE. 363 improper proceeding ; the water would have found its way down a gutter and through a grating. But it happened to be very frosty, and (though the law-breaking servant did not know it) the grating was frozen over. The con- sequence was that the water, finding no escape, flowed about 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 rernernbering as an authority on questions of consequential damage. The rule is that damage to be actionable must be the ordinary Ordinary and probable consequence of the act complained of ; in other words, ? n {M 3r0 " the act must be the proximate cause of the damage. If a candidate sequence, for parliamentary honours makes a stump oration inveighing at his opponents generally, and waives 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 contemplate all the consequences of his acts, and is responsible for them. A railway company negligently sent some Sneesby's empty trucks down an incline into a siding. The consequence was case - 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 on quite another part of the company's line. The company were held responsible to tho owner of the cattle (k). In a recent case (/) the following facts appeared. The ciark v. Chambers. (i) Peacock i'. Young (1869), 18 42; 45 L. J. Q. B. 1. Ami see "W. R. 134 ; 21 L. T. 527. The Gertor (1894), 70 L. T. 703. (k) Sneesbyp. Lancashire & York- (I) Clark v. Chambers (1878 , 3 shire Ry. Co. (1875), 1 Q. 15. D. Q. B. D. 327 ; 47 L. J. Q. B. 427. 364 PROXIMATE CAUSE. Harris V. Mobbs. The mare in the cricket field. Victorian Ry. Corns. v. Coultas. occupier of a field used for athletic sports put a barrier with iron spikes across the adjoining road, in order that the British public might not see the sports without 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 contact with one of the spikes. It was held that the occupier of the field, who had taken liberties with the road which he had no business to take, was liable notwithstanding the inter- vention of a third party. To take another recent case (m), the pro- prietor of a van and 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, though 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 the van-proprietor was liable (m). " Though the imme- diate 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 most recent decision on this subject is in the case of Halestrap v. Gregory (»). There the defendant owned a field in which he took horses in for agistment. This field was separated from another, let to a cricket club, by a wire fence, and there was a gate between the two fields. The plaintiff delivered a mare to the defendant for agistment. The defendant's servant negligently left the gate open, and the mare strayed into the cricket field. The cricketers tried to drive her back through the gate, using proper care and precaution, but she ran against the wire fence and sustained injuries. It was held that the defendant was liable ; the natural consequence of the gate being left open was injury to the mare. " It is," said Wills, J. (with evident recollections of Pickwick), " the nature of an animal which has escaped from its own proper inclosure to resist either attempts to catch it or any well-meant endeavours to send it back again. It is a difficult thing to catch a stray horse which does not want to be caught and taken back to his proper inclosure ; and it is by no means unnatural that a horse when driven back, even carefully as this mare was, should make a bolt of it. If there be wire fencing, it would be very likely to injure itself." An important (but not very satisfactory) decision on remoteness of damage was recently given by the Privy Council in the case of (m) Harris v. Mobbs (1878), 3 Ex. D. 268 ; 39 L. T. 164 ; and see Wilkins v. Day (1883), 12 Q. B. D. 110; 49 L. T. 399. («) [1895] 1 Q. B. 561; 64 L. J. Q. B. 415. PROXIMATE CAUSE. 365 Victorian Railway Commissioners v. Coultas (o). A husband and wife were driving in a buggy across a level railway crossing, when, owing to the negligence of the gatekeeper, the buggy was nearly but not quite run down by a passing train. The wife fainted and received a severe nervous shock from the fright, and in consequence afterwards suffered a severe illness. It was held, however, that the damage was too remote to be recovered. The following passage from Sir F. Pollock's valuable treatise on the Law of Torts (4th ed. p. 47), contains, it is submitted, a more accurate view of the law on this point. ' ' The true question would seem to be whether the fear in which the plaintiff was put by the defendant's wrongful or negligent conduct was such as, in the circumstances, would naturally be suffered by a person of ordinary courage and temper, and such as might thereupon naturally and probably lead, in the plaintiff's case, to the physical effects complained of." The principle of Scott v. Shepherd has been applied in a curious Some American case, where the defendant (with a certain amount of Amencan v cases. 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 w T as held that the defendant must pay for the good liquor lost (p). " There is nearly as much reason," said the Court, " for holding him liable for driving the boy against the wine cask, and thus destroying the plaintiff's property, as there would have been if he had produced the same result by throwing the boy upon the cask, in which case his liability could not have been ques- tioned." So in the American leading case of Fent v. The Toledo Railway Company, 59 111. 349, it was held that a railway company might be responsible to any extent to which a fire wrongfully caused by a spark from one of their engines might spread. ' ' If loss has been caused by the Act," said Lawrence, C.J., " and it was under the circumstances a natural consequence which any reason- able person could have anticipated, then the act is a proximate cause whether the house burned was the first or the tenth, — the latter being so situated that its destruction is a consequence reason- ably to be anticipated from setting the first on fire " (id foresight) to carry the passenger safely, and is not a warranty that the carriage in which he travels shall he in all respects fit for its 2)urpose.'" In the recent case of Hyman v. Nye (z) (where the plaintiff had hired from the defendant, a jobmaster, for a drive from Brighton to Shoreharn and back, a carriage, a pair of horses, and a driver, and an accident had occurred), it was held that the duty of a jobmaster who lets out carriages, &c, is to supply a carriage as fit for the purpose for which it is hired as care and skill can make it, " and if, whilst the carriage is being properly used for such purpose, it breaks down, it becomes incumbent on the person who has let it out to show that the breakdown was in the proper sense of the word an accident not preventible by any care or skill. If he can prove this, as the defendant did in Christie v. Griggs (2 Camp. 80), and as the railway comjDany did in Beadhead v. Midland By. Co., he will not be liable ; but no proof short of this will exonerato him" («■). In an action for personal injuries the great obstacle to the plain- tiff's success generally is to prove that the act complained of was either wilful or negligent. The defendant cannot be made respon- sible for a mere accident. In Holmes v. Mather (b), a gentleman at North Shields had tried some horses for the first time in doublo harness. The horses did not take kindly to it, and the plaintiff got knocked down. " The driver," said Bramwell, B., "is absolutely free from all blame in the matter ; not only does he not do any- thing 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 bai'king 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 ordinary 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 (y) See Cobb v. G. W. By. Co., [1894] A. C. 419 ; 63 L. J. Q. B. 629, where the defendants were held not liable to a passenger who had been robbed while travelling in a railway carriage which was over- crowded owing to the negligence of their servants. See also Pounder v. N. E. By. Co., [1892] 1 Q. B. 385; 61 L. J. Q. B. 136. (z) (1881), 6 Q. B. D. 685; 44 L. T. 919 ; and see Gilbert v. North London By. Co. (1883), 1 C. & E. 31. (a) Per Lindley, J. {b) (1875), L. B. 10 Ex. 261 ; 44 L. J. Ex. 176. NEGLIGENCE. 359 the part of others cannot avoid." In another well-known case (c), a coachman drove his coach against 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 was an accident for which no one could be made responsible. So, in the recent case of Manzoni v. Manzoni Douglas (d), where a horse drawing a brougham in a London street "' Dou S las ' had suddenly and without apparent reason bolted and knocked the plaintiff down, it was held that an action could not be maintained. " To hold," said Lindley, J., "that the mere fact of a horse bolting is per se evidence of negligence would be mere reckless guesswork." The American case of Brown v. Kendall (e), also illustrates this point. The dogs of plaintiff and defendant got fighting, and the defendant, in trying to separate them with a long stick, un- fortunately knocked out the eye of the plaintiff, who was standing behind him. It was held that the defendant was not liable for this mischief. "If," said Shaw, C. J., "in the prosecution of a lawful act, a casualty, purely accidental, arises, no action can be supported for an injury arising therefrom." In an action for personal injuries by negligence, it is the pro- Respective vince of the judqe to say whether there is evidence from which Provinces negligence may be reasonably inferred, and of the jury (if the evi- and jury, dence is left to them) to say whether it ought to be inferred (/). Sometimes, however, res ipsa loquitur; the mere happening of a Res ipsa disaster may be sufficient to raise a presumption of negligence, lo 1 intur - which the defendant must rebut if he can. This is so, for instance, where the thing that caused the mischief was so exclusively under the defendant's control, that it is hardly credible that any harm could have come from it without his default. A gentleman was once guilelessly walking down a Liverpool street when suddenly a barrel of flour came down on his head from the upper window of a flour dealer's shop, and the subsequent proceedings for some time to come did not greatly interest him. In an action against the flour dealer, it was held that the inert- unrxjilaiuul fact of the accident happening at all was evidence of negligence (. Metr. Ry. Co. (1873), L. R. 8 Q. B. 161 ; 42 L. J. Q. B. 105. (I) Adams v. Lane. & Y. Ry. Co. (1869), L. R. 4 C. P. 739 ; 38 L. J. C. P. 277. (;«) See Stapley v. L. B. & S. C. Ry. Co. (1865), L. R. 1 Ex. 21 ; 35 L. J. Ex. 7 ; Wanless v. N. E. Ry. Co. (1874), L. R. 7 H. L. 12 ; 43 L. J. Q. B. 185 ; "Wright v. G. N. By. Co. (1881), L. R. (Ir.) 8, 257 ; Wakelin v. L. & S. W. Ry. Co. (1886), 12 App. Ca. 41 ; 56 L. J. Q. B. 229 ; Eenna v. Clare, [1895] 1 Q. B. 199 ; 64 L. J. Q. B. 238. NEGLIGENCE. 37I the omission to guard against extraordinary accidents is not negli- gence (n) : nor is the omission of a merely voluntary precaution (0). Voluntary Each case, however, depends on its own circumstances. In Shep- precaution herd v. Midi. Ey. Co. (p), the action was by a Bedfordshire attorney j ° PPG ' who, while smoking a cigar on the platform of the Ampthill Station, railway and waiting for his train, one frosty day in 1870, "felt his legs P latform - suddenly go from under him, and fell heavily on the platform, where he lay until assistance was procured to enable him to rise." The cause of this accident was a strip of ice ; and the plaintiff con- sidered he was entitled to damages out of the railway company. In this view he was confirmed by the judges. "It strikes me," said Martin, B., "that the railway servants ought to be on the alert during such weather to see that there is no ice upon the platform, and to remove it, or render it harmless, if there." In the recent case of Simkin v. L. & N. W. By. Co. (•) M'Cawley v. FurnesH Ey. Co. (1888), 21 Q. B. D. 524; 57 Co. (1872), L. E. 8 Q. B. 57 ; 42 L. J. Q. B. 597. L. J. Q. B. 4 ; Gallin v. L. & N. 15 15 2 NEGLIGENCE. The cow and the statue. Randall V. Newson. Greenland v. Chaplin. But if cattle stray into a field adjoining the line, and thence get on to the line and are killed, the company 'will not be responsible (?/). Market owners who take toll from persons attending the market with their cattle are bound to keep the market in a reasonably safe condition, and on this ground the mayor, aldermen, and burgesses of the borough of Darlington were held liable for the loss of a cow which was so irreverent, and, as it turned out, so indiscreet as to try to jump over a spiked fence surrounding the statue of a local hero (2). So, in the case of Francis v. Cockrell («), it was held that " where money is paid by spectators at races or other public exhibitions for the use of temporary stands or platforms, there is an implied warranty on the part of the person receiving the money that due care has been used in the construction of the stand by those whom he has employed as independent contractors to do the work as well as by himself." The limitation of the leading case as to latent defects does not apply to the sale of a chattel where there is an implied warranty. In Eandall v. Newson (6), a man bought of a coach-builder a pole for his carriage. Though the coach-builder was guilty of no negli- gence in the matter, the pole turned out defective and broke, frightening and injuring the horses. It was held that the coach- builder was liable. For Lord Campbell's Act (9 & 10 Vict. c. 93), see post, p. 493. As to the liability of a person for the consequences of his negli- gence, the following remark of Pollock, C. B., in the well-known contributory negligence case of Greenland v. ChapUn (c) (where an anchor fell on a steam-boat passenger) may be quoted : — " I enter- tain considerable doubt whether a person who has been guilty of negligence is responsible for all the consequences which may under any circumstances arise, and in respect of mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated. I am inclined to consider the rule of law to be this : that a person is expected to anticipate and guard against all reasonable consequences, but that he is not by the law of England expected to anticipate and guard against that which no reasonable man would expect to occur." See also Hurst v. (>/) Ricketts v. East, &c., Docks and Ry. Co. (1852), 12 C. B. 160 ; 21 L. J. C. P. 201 ; and see Man- chester, &c, Ry. Co. v. Wallis (1854), 14 C. B. 213 ; 23 L. J. C. P. 85 ; Buxton v. N. E. Ry. Co. (1868), L. R. 3 Q. B. 549; 37 L. J. Q. B. 258. (z) Lax v. Darlington (1879), 5 Ex. Div. 28 ; 49 L. J. Ex. 105. (a) (1870), L. R. 5 Q. B. 501 ; 39 L. J. Q. B. 291. (b) (1877), 2 Q. B. D. 102; 46 L. J. Q. B. 257. (c) (1850), 5 Exch. 243 ; 19 L. J. Ex. 293 ; and see Scott v. Shep- herd, ante, p. 362. CONTRIBUTORY NEGLIGENCE. 373 Taylor (d) with regard to the duty of fencing a footpath in case of diversion. Contributory Negligence. BUTTERFIELD v. FORRESTER. (1809) [ill.] [11 East, 60.] Mr. Forrester, a citizen of Derby, was engaged in the enterprise of enlarging and improving his house. This was all very well ; but in carrying out his repairs he was guilty of the high-handed and unwarrantable act of put- ting poles across the king's highway. Just about dusk, one August evening, while things were in this improper state, Mr. Butterfield was riding home. With reckless disregard for his own and the lieges' safety, he went galloping through the streets " as fast as his horse could go " ; and the reader will scarcely be surprised to hear that he rode plump up against Mr. Forrester's obstruction and had a nasty fall. He brought this action for damages ; but his own careless riding was held to be as complete an obstacle to his success as Mr. Forrester's pole had been to his horse. " A party," said Lord Ellenborough, C. J., " is not to cast himself upon an obstruction which has been made by the fault of another and avail himself of it if he do not himself use common and ordinary caution to be in the right. . . . One person being in fault will not dispense with another's using ordinary care for himself." (d) (1885), 14 Q. B. D. 918; 54 L.J. C. P. 195; Hawker v. Shearer L. J. Q. B. 310 ; and see Barnes (1887), 56 L. J. Q. B. 284. v. Ward (1850), 9 C. B. 392 ; 19 374 GONTRIB UTOR Y NEGL IGENCE. [112.] Volenti nonfit injuria. When plaintiff may re- cover in DAVIES t». MANN. (1842) [10 M. & W. 546; 12 L. J. Ex. 10.] The owner of a donkey fettered his forefeet, and in that helpless condition turned it into a narrow lane. The animal had not disported itself there very long when a heavy waggon belonging to the defendant came rumbling along. It was going a great deal too fast, and was not being properly looked after by its driver ; the consequence was that it caught the poor beast, which could not get out of the way, and killed it. The owner of the donkey now brought an action against the owner of the waggon, and, in spite of his own stupidity, was allowed foTrecover, on the ground that if the driver of the waggon had been decent/// careful the consequences of the plaintiffs negligence would hare been averted. " Although," said Parke, B., " the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road." The doctrine of contributory negligence is based on the maxim volenti non Jit injuria. The man who is the author of his own wrong merits nobody's sympathy ; he does not come into Court with clean hands. " If," says Domat, " one goes across a public cricket-ground whilst they are playing there, and the ball being struck chances to hurt him, the person to blame is not the innocent striker of the ball, but he who imprudently sought out the danger." The most recent cases on this subject are Thrussell v. Handy side (1888), 20 Q. B. D. 359 ; 57 L. J. Q. B. 347 ; Osborne v. London and North Western By. Co. (1888), 21 Q. B. D. 220 ; 57 L. J. Q. B. 618; and Membery v. Great Western By. Co. (1889), 14 App. Ca. 179 ; 58 L. J. Q. B. 563. But Davies v. Mann engrafts an important qualification on the rule that the negligence of the plaintiff himself disentitles him to complain of the defendant's negligence. If the defendant by being CO NT RIB UTOR Y NEG L TGENCE. 375 ordinarily careful would have averted the consequences of the plaintiff' 8 spite of his negligence — in other words, if the regrettable accident would never ne ^ 1 « ence> have happened if the defendant had behaved as he ought to have done — then the plaintiff is entitled to recover in spite of his negli- gence. A penny steamer negligently ran down a barge on the Thames. The barge had not ported, and no look-out was kept on board. But this undoubted negligence of the barge was held not such as to prevent her owners from obtaining compensation from the steam-boat people (e). In the river Colne, in Essex, an oyster bed was so placed as to be a public nuisance, yet its proprietors successfully went to law against a person who ran his vessel against it when he might have managed better (/). In a third and more Radley's recent case some colliery proprietors had a siding from the London case ' and North Western Railway Company's line, and over the siding a bridge with a headway of eight feet. The London and North Western Railway Company negligently pushed a loaded truck eleven feet high against the bridge and broke it down. The jury found that the colliery proprietors as well as the railway company had been negligent in the matter, for they ought to have foreseen what was going to happen, as the loaded truck had been standing about some time ; but in spite of this negligence they were held entitled to recover against the railway company for the damage done to the bridge, as the defendants, by the exercise of ordinary care, might have averted the mischief (. L. 199; 64 L. J. 380 CONTRIBUTORY NEGLIGENCE OF CHILDREN. Playing with crushing oil -cake machine. Single- ton's case. Contri- butory- negligence of parents. a wall. It was held that he could not recover. In. Mangan v. Atterton a Sheffield whitesmith left a machine for crushing oil-cake standing about in the street, without fastening up the handle or taking any other precaution. Forth there came bounding from the school just then the plaintiff, a little boy of four, his brother, aged seven, and some other boys. They instantly collected round the Sheffield gentleman's machine ; one of them turned the handle ; and then, by the direction of his brother, the plaintiff put his fingers in the cogs. The result of this scientific experiment was an action against the owner of the machine. But judgment was given for the defendant, on the double ground that he had not been negligent, and that the little boy had been (a). In the third case a little girl of three was trespassing on a railway. She was sitting on the parapet of a small wooden bridge when a train came up and cut off one or two of her legs. The driver had seen the child, but made no attempt to stop the engine, contenting himself with whistling. It was held that the child could not recover damages against the company, — rather, however, because they had not been negligent at all, than because the plaintiff had been guilty of such contributory negligence as prevented her from availing herself of the defendants' negligence. In the American leading case of Hartfield v. Roper (1839), 21 "Wend. 615, the defendant, driving a sleigh without bells, had negligently run down a child of two playing about in a street by itself. In an action by the child it was held that the negligence of its parents in allowing it to wander unattended in a public road was an answer. But the rule which visits the negligence of the fathers on the children in this way is denied in some of the States of the Union, and has not yet been adopted by the English Courts (b). (a) This case, however, will he found severely criticised by Cock- burn, C.J., in Clark r. Chambers (1878), 3 Q. B. D. 339; 47 L. J. Q. B. 427. (!>) See, however, the Scotch cases of Davidson v. Monkland Ry. Co., 27 Jur. 541 ; Lumsden v. Russell, 28 Jur. 181 ; Balfour v. Baird, 30 Jur. 124. TBESPASSERS AND LICENSEES. 381 Position of Plaintiff in regard to Defendant'' 's Negligence. INDERMAUR v. DAMES. (1867) [115.1 [L. E. 2 C. P. 311 ; 36 L. J. C. P. 181.] Mr. Dames was the owner of a sugar refinery, and employed one Duckhani, a gas engineer, to improve his gas-meter. Duckham got his work done by a certain Saturday evening ; but it was arranged that he or one of his workmen should come on the following Tuesday to see if the improvement was working satisfactorily. Accord- ingly on the Tuesday the plaintiff, Indermaur, presented himself as Duckham's representative to look at the gas- meter. Now it happened that on the premises, and level with the floor, there was an unfenced shaft used for the purpose of hauling up bales of sugar. When the shaft was being used for that purpose it was usual and necessary that it should be unfenced ; but when not being used there was no particular reason why it should not be fenced. Indermaur fell through this shaft, and brought an action for personal injuries. The sugar people denied their liability to him, contending that he was a mere licensee, and that they were under no particular duty towards him. It was held, however, that he was not a mere licensee, as he had come on lawful business, and that as the hole was from its nature unreasonably dangerous to persons not usually employed on the pre- mises, they were liable. When a person is injured on somebody else's land, and by that somebody's negligence, the question is a very material one — What was he doing there ? 1. He may have bi'ii a trespasser. If so, he cannot, as a rule, Trcs- recover damages. But there are exceptions. For instance, though P asBera ' 382 TRESPASSERS AND LICENSEES. Dangerous pit. Spring- gun. Bird v. Holbrook. Murley v. Grove. Licensees. Going out to dinner. a man has a right, as against trespassers, to have a dangerous pit in the middle of his field, he has no right to have one within twenty-five yards of the road(c). See also the Quarry (Fencing) Act, 1887 (50 & 51 Vict. c. 19), which declares an insufficiently fenced quarry, within fifty yards of a highway or place of public resort, to be a nuisance liable to be dealt with summarily in manner provided by the Public Health Act, 1875. Bird v. Holbrook (c?) is a well-known authority on this subject. There the defendant, having had some valuable flowers and roots stolen from his garden, which was at some distance from his house, had set a spring-gun. The plaintiff climbed a wall, during the day- time, in pursuit of the stray fowl of a friend, and got shot. In spite of the plaintiff being thus a trespasser, it was held that the defendant was liable in damages. "There is no act," said Best, 0. J., " which Christianity forbids, that the law will not reach : if it were otherwise, Christianity would not be, as it has always been hold to be, part of the law of England. I am, therefore, clearly of opinion, that he who sets spring-guns, without giving notice, is guilty of an inhuman act, and that, if injurious consequences ensue, he is liable to yield redress to the sufferer." 24 & 25 Vict. c. 100, s. 31 (re-enacting 7 & 8 Geo. IV. c. 18), makes it a misdemeanour to set spring-guns or man-traps, unless it be for the purpose of protecting one's house at night, or of destroying vermin. But in the recent case of Murley v. Grove (e), the defendant, while erecting houses upon land adjoining a new road which had not been dedicated to the public, had dug a trench across the road for the purpose of making drains. The plaintiff's servant, while driving the plaintiff's horses along the road after dark, drove into the trench, there being no lights. It was held that the plaintiff could not recover damages, there being no duty cast on the defen- dant to protect anyone using the road without i^ermission. 2. The plaintiff may have been a licensee. In this position are guests. Whenever you go out to dinner, or are stopping with a friend, you are a licensee ; and, in respect of the ability to bring an action against your host for his negligence, you are little better than a trespasser. " A lady with a valuable (c) 5 & 6 Will. IV. c. 50, s. 70 ; and see Barnes v. Ward (1850), 9 C. B. 392; 19 L. J. C. P. 195; Hounsell v. Smith (1860), 7 C. B. N. S. 731 ; 29 L. J. C. P. 203. (d) (1828), 4 Bing. 628 ; 1 M. & P. 607 ; and see Ilott v. Wilkes (1820), 3 B. & Aid. 304 ; Jordin v. Crump (1841), 8 M. & W. 782 ; 5 Jur. 1113. (e) (1882), 46 J. P. 360. " As to the dictum in Gallagher v. Hum- phrey" said Cave, J., " I cannot think that Crompton, J., can have been correctly reported.'''' TRESPASSERS AND LICENSEES. 383 dress gees out to dinner, and the servant, in handing the soup, negligt ntly spoils In r dress : will an action lie against the master . 2 " (/). A licensee can only maintain an action against his licensor Concealed when the danger through, which he has sustained hurt was of an ° er - a latent character, which the licensor knew of and the licensee did not. A gentleman was once leaving a Mend's house after paying a call when a loose pane of glass fell from the door as he was push- ing it open, and cut him badly ; but it was held that he could not recover damages (/) Southcote v. Stanley, supra. and omission is not beyond quest ion. The plaintiff' appears really to have See Smith on Negligence, p. ;jl. been staying at the defendant's (t) (1880), 50 L. J. C. P. 101. hotel as a customer ; but if so, that (k) (1882), 9 Q. B. D. 80. fact was not brought out by the 384 TRESPASSERS A XI) LICENSEES. Batchelor v. Fortescue. Other cases. On lawful business. Thames waterman. Guest at inn. Elliott r. Hall. So in Batchelor v. Fortescue (/), a plaintiff suing under Lord Campbell's Act, was b-eld to be disentitled to complain of the defendant's negligence (even if she could show it, which she could not), because her husband was only a bare licensee at the most when he met with his death. He had been employed to guard some unfinished buildings, and wandered needlessly to a place where the defendant's workmen were carrying out some excavations, when a chain broke, and he was killed. " There was no evidence," said Brett, M.B., "to show that the defendant's workmen had reason to expect the deceased to be at the spot where he met with his death. There was no contract between the defendant and the deceased ; the defendant did not undertake with the deceased that his servants should not be guilty of negligence ; no duty was cast upon the defendant to take care that the deceased should not go to a dangerous place." The cases of Corby v. Hill (1858), 4 C. B. N. S. 556; 27 L. J. C. P. 318 ; Gautret v. Egerton (1867), L. B. 2 C. P. 371 ; 36 L. J. C. P. 191 ; Bolch v. Smith (1862), 7 H. & N. 736 ; 31 L. J. Ex. 201 ; Moffatt v. Bateman (1S69), L. B, 3 P. C. 115; 22 L. T. 140; and Wilkinson v. Fairrie (1862), 32 L. J. Ex. 173 ; 1 H. & C. 633 ; may also be referred to on the question as to when a licensee can suc- cessfully sue. 3. The plaintiff may have been on lawful business. And this is the best position of all to be in, the rule being that where a person is upon premises by the invitation or permission of the occupier, on lawful business in which both he and the occupier have an interest, there is a duty towards such person cast upon the occupier to keep the premises in a reasonably secure condition. Our friend Indermaur was considered to be in this position ; and so, in later cases, where a licensed waterman, who went on board a barge on the Thames to complain of its illegal navigation and get employment if he could (m), and a customer at an inn on whom the ceiling of one of the rooms fell («). In Elliott v. Hall (o), the defendant, a colliery owner, had con- signed coals sold by him to the buyers by rail in a truck rented by him from a waggon company for the purposes of the colliery. Through the negligence of the defendant's servants the truck was allowed to leave the colliery in a defective state, and the consequence was that injury was occasioned to the plaintiff, one of the buyer's servants, who was employed in unloading the coals, and had got (t) (1883), 11 Q. B. D. 474; 49 L. T. 644. (m) White v. France (1877), 2 C. P. D. 308 ; 46 L. J. C. P. 823. {») Sandys v. Florence (1878), 47 L. J. C. P. 598. But see Walker v. Midland ~Ry. Co. (1886), 55 L. T. 489; 51 J. P. 116. (o) (1885), 15 Q. B. D. 315; 54 L.J. Q. B. 518. SURVEYORS OF HIGHWAYS. 385 into the truck for that purpose. It was held that there was a duty on the part of the defendant towards the plaintiff to exercise reasonable care with regard to the condition of the truck, and that he was liable. "This seems to me," said Grove, J., "a much stronger case than Heaven v. Pender (p), where it was held that the defendant was liable. Indermaur v. Dames, also, does not seem to me so strong a case as this. This is not the mere case of a person lawfully coming into premises for the purposes of business, but the defendant must have known that the plaintiff must neces- sarily get into the truck for the purpose of unloading the coal. The only case that seems somewhat in the defendant's favour is the case of Collis v. Selden (7), where it was alleged that the defendant improperly and negligently hung a chandelier in a public-house. .... But I do not think that that case is really an authority which bears upon the circumstances of the present case." The reader should also refer, on this branch of the subject, to Other Smith v. London and St. Katharine Docks Co. (1868), L. E. 3 C. P. cases - 326; 37 L. J. C. P. 217; O'Neil v. Everest (1892), 61 L. J. Q. B. 453 ; 66 L. T. 396 ; Chapman v. EothweU (1858), E. B. & E. 168 ; 27 L. J. Q. B. 315; Nicholson v. Lane, and Yorkshire Ey. Co. (1865), 34 L. J. Ex. 84 ; 3 H. & C. 534 ; Holmes v. N. E. Ey. Co. (1871), L. E. 6 Ex. 123 ; 40 L. J. Ex. 121 ; Martin v. G. X. Ey. Co. (1855), 24 L. J. C. P. 209; 16 C. B. 179; Burgess v. G. W. Ey. Co. (1875), 32 L. T. 76; Wright v. L. & N. W. Ey. Co. (1875), 1 Q. B. D. 252 ; 45 L. J. Q. B. 570 ; Jewson v. Gatti (1885), 1 C. & E. 564; Sandford v. Clarke (1888), 21 Q. B. D. 398; 57 L. J. Q. B. 507; and Miller v. Hancock, [1893] 2 Q. B. 177; 69 L. T. 214. Actions against Surveyors of Highways, &c. McKINNON v. PENSON. (1854) |U6.] [9 Excn. 609; 23 L. J. M. C. 97.] This was an action against the surveyor of county bridges for the county of Cardigan. One of his bridges was so much out of repair that the plaint ill's carriage was (p) (1883), 11 Q. B. D. 503 ; 52 (7) (1868), L. R. 3 C. P. 1 15 ; 37 L. J. Q. 1). Tit-'. L. J. C. P s — f • I I 386 SURVEYORS OF HIGHWAYS. 43 Geo. III. c. 59. The Men of Devon. Young r. Davis. Distinc- tion be- tween mis- feasance and non- feasance. Waterers as well as surveyors. pitched into the river. In suing for the damage thus done, the plaintiff practically admitted that the action could not be maintained at common law, but he relied on a certain Act of Parliament passed rather late in George the Third's reign, which, in his view, gave him a right of action. It was held, however, that the statute did not alter the common law in this respect, and that the action, therefore, could not be maintained. In 17S8, in the case of Eussell v. The Men of Devon (r), it had been held that no action would lie by an individual against the inhabitants of a county for an inj ury sustained in consequence of a bridge being out of repair. " It is better," said Ashhurst, J., "that an individual should sustain an injury than that the public should suffer an inconvenience." The leading case was followed a few years later in Young v. Davis (s), which was an action by a foot passenger against some Oxfordshire surveyors of highways for allowing a highway to be out of repair, whereby the plaintiff fell into a hole. " It appears to mo," said Pollock, C. B., in that case, "if the plaintiff is to succeed, that it would be enlarging the sphere of legislation very much, and rendering it impossible to get anybody to discharge the duties of surveyor of highways ; because we all know what will be the practical result. A surveyor of highways will become a sort of insurer of everyone travelling along the road, and not a single accident will happen without an action being brought." But although a surveyor is not liable for nonfeasance, he is for on is -feasance. Two or three years ago a vestry ordered their surveyor to get the level of a road raised. The surveyor, accord- ingly, employed a contractor for the labour part of the job, but made no agreement with him as to fencing or lighting, and reserved to himself the superintendence. The plaintiff driving along the road one night in his dog- cart was upset through not seeing the obstruction, and it was held that the surveyor was liable to him(<). Moreover, surveyors of highways may be liable as having acted in some other capacity. In a recent case («), the plaintiff, whilst (r) (1788), 2 T. E. 6C7. (s) (1863), 2 H. & C. 197; 9 L. T. 145. (t) Pendlebury v. Greenhalgh (1875), 1 Q. B. D. 3G ; 45 L. J. Q. B. 3; and see Foreman v. Mayor of Canterbury (1871), L. E. 6 Q. B. 214 ; 40 L. J. Q. B. 138 ; Hard- castle v. Bielby, [1892] 1 Q. B. 709 ; 61 L. J. M. 0. 101. {it) Blackmore v. Vestry of Mile End Old Town (1882), 9 Q. B. D. SURVEYORS OF HIGHWAYS. 387 walking in Charles Street, Stepney, fell over the iron-flap cover to a water-meter box which was imbedded in the pavement, and had worn smooth by traffic, and broke his leg. " The question to be considered," said Cotton, L. J., "is whether the iron flap was laid down by the defendants as surveyors of highways or in a different capacity and under a different authority, so as to make them liable. It is clear that it was put down by the defendants as waterers of the highway," i.e., under sect. 116 of the Metropolitan Local Manage- ment Act, 1855 [x). The fact that a local authority has the control of the sewers as Sewer as well as of the highways does not render such local authority Hable ^ e11 as for an accident which is attributable solely to the non-repair of the thorities." highway. Thus, in the recent case of Thompson v. Mayor, &c. of Brighton(y), the plaintiff was riding along a public road in Brighton, when his horse's foot struck the cover of a man-hole in the middle of the road, which projected about one and a half inches above the surface of the road, and the horse was thrown down and seriously injured. The man-hole had been inserted in the road by the corporation of Brighton as the sewer authority. It was a proper cover, and there was no fault in its construction, nor was it at all out of repair. The accident arose from the road not having been kej^t up to its level by the corporation, who were the road authority. Under these circumstances the Brighton corporation were held not liable, as the only breach of duty which could be imputed to them was their omission to repair the road. In Burgess v. The Xorthwich Local Board (z) the action was by A sinkin°- some owners of houses abutting on a highway which was vested in town, the defendants, a local board acting under 38 & 39 Vict. c. 55 (the Public Health Act, 1875), and having the powers and liabilities of surveyors of highways. The abstraction of salt had caused a sub- sidence of the ground, and the defendants found it necessary to raise the road. To meet the new level of the road, the plaintiffs raised their houses : and now claimed compensation under sect. 308 of the Act. It was held, however, that as the highway was vested 451 ; 51 L. J. Q. B. 49G ; follow- L. J. Q. B. 65 ; Pictou Munici- ing White v. Hindley Local Board pality v. Geldert, [1893] A. C. 62 I ; (1875), L. R. 10 Q. B. 219; 44 63 L. J. P. C. 37; and Sydney L. J. Q.B.I 18. Municipality v. Bourkc, [1895] (x) 18 & 19 Vict. c. 120. A. C. 433 ; 11 T. L. R. 403, over- (1/) [1894] 1 Q. B. 332; G3 L. J. ruling Hartnall v. Ryde Cominis- Q. B. 181 ; sec, too, Oliver v. Hor- sioners (1863), 4 B. & S. 361 ; 33 sham Local Board, ibid. ; overrul- L. J. Q. B. 39, and explaining ing Kent v. Worthing Local Board Bathursl v. Macpherson IS79), 4 (l.v^.,,10Q.B.D.lly; 52L.J.Q.B. App. Cas. 256 ; 48 L. J. P. 0.61. 77. See also Cowley 0. Newmarket (s) (1880), 6 Q. B. D. 264; 50 Local Board, [1892] A. O. 345 ; 62 L. J. Q B. 219. c c 2 388 SURVEYORS OF HIGHWAYS. Liability of surveyor for materials supplied. Liability of public bodies generally. Otber cases. in the defendants, no action of trespass could have been maintained by the plaintiffs even if more materials had been placed on the road than a surveyor of highways could justify, and that the plaintiffs had no right to have the road maintained at the level to which it had accidentally and recently sunk ; and that the works of the defendants were not done "in exercise of any of the powers " of the Act within section 308, but were done, if not strictly in pursu- ance of their duty as surveyors of highways, at all events in exercise of such powers as surveyors of highways have ; and consequently, that the plaintiffs were not entitled to compensa- tion. A surveyor of highways who, in accordance with the provisions of the Highway Act, 1835 (5 & G Will. IV. c. 50), contracts for the purchase of materials to be used in the repair of the parish roads, and raises the necessary sum by the levy of a highway rate, is personally and solely liable for payment ; and, consequently, his successor in office is not liable therefor, although such materials were, in fact, used in repairing the roads (a). As to the liability of public officers other than surveyors of highways, the following rule from Addison on Torts (b) may be quoted: — "Whenever an Act of Parliament imposes upon com- missioners, or upon any public body, the duty of maintaining or rejDairing any public work, and special damage is sustained by a particular individual from the neglect of the public duty, an action for damages is maintainable against such commissioners or public body, unless there are provisions in the statutes.creating them for Limiting their- liability, or the duty of repairing is not absolute ; the rule being that, in the absence of something to show a contrary intention, the Legislature intends that the body, the creation of the statute, shall have the same duties, and that its funds shall be rendered subject to the same liabilities, as the general law would impose on a private person doing the same things ; and this whether they have or have not funds at their disposal for effecting the repairs ; though, if there are no funds, there may be a difficulty in the way of the plaintiff's getting his damages." The reader is also recommended to refer to the following cases: — Ohrby v. Eyde Commissioners (1864), 5 B. & S. 743 ; 33 L. J. Q. B. 296 ; Forbes v. Lee Conservancy Board (1879), 4 Ex. D. 116 ; 48 L. J. Ex. 402; Gibson v. Mayor of Preston (1870), L. E. 5 Q. B. 218 ; 39 L. J. Q. B. 131 ; Parsons v. St. Matthew (1867), L. E. 3 C. P. 56 ; 37 L. J. C. P. 62 ; Mersey Docks Trustees v. Gibbs (1866), L. E. 1 H. L. 93 ; 35 L. J. Ex. 225 ; Parnaby v. Lancaster Canal (rt) Frodingham Iron Co. r. Bowser, [1894] 2 Q. B. 791 ; 01 L. J. Q. B. 12. (J) 6th eJ. p. 720. ACTION AGAINST MASTERS. 389 Co. (1839), 11 A. & E. 223 ; Howitt v. Nottingham Tramways Co. (18S3), 12 Q. B. D. 16; Barliam v. Ipswich Docks Commissioners (1885), 54 L. T. 23. A word may be said about the liability of the Hundred or other Damage by- area to make compensation for damage done by rioters. The statute noters - to be consulted is the Biot (Damages) Act, 1886 (49 & 50 Vict. Riot Act, c. 38), which repealed 7 & 8 Geo. IV. c. 31, and 2 & 3 Will. IV. 1886 - c. 72, and gave a right to compensation to persons whose buildings are injured or destroyed, or property therein injured, stolen, or destroyed in a riot. In fixing the amount of compensation (which is paid out of the district police rate) regard is had to the conduct of the claimant, whether as respects the precautions taken by him, or as respects his being a party or accessory to the riotous or tumultuous assembly, or as regards any provocation offered to the persons assembled or otherwise. It may be noted that churches, chapels, schools, hospitals, public institutions, and public buildings, are within the provisions of the Act. In the case of churches or chapels, the persons to recover the compensation are the church- wardens or chapel-wardens, if any, or, if there are none, the persons having the management of the church or chapel, or the persons in whom the legal estate in the same is vested ; and in the case of schools, hospitals, or other public institutions, then the person in whom the legal estate in the same is vested (c). Servant Suing Master for Injury during Service. PRIESTLEY v. FOWLER. (1837) [117.] [3 M. & W. 1 ; M. & II. 305.] Fowler was a butcher, and Priestley was bis man. It was Priestley's duty to take meat round in a van to the various customers. These seem to have been pretty numerous, for one day such a quantity of shoulders of mutton and rounds of beef were put on board that the van broke down, and Priestley's thigh was fractured. The unfortunate butcher-boy now brought an action against his {<■) Sect. 7. 390 ACTION AGAINST .MASTERS. master, but it was held that the action did not lie. " The servant," said the Court, " is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself ; and in most of the cases in which danger may be incurred, if not in all, he is just as likely to be accmainted with the probability and extent of it as the master." [118.] Common employ- ment. General rule. Excep- tions. MELLORS v. SHAW. (1861) [30 L. J. Q. B. 333 ; 1 B. & S. 437.] This was an action by a miner against his masters, the proprietors of the mine. The sides of the shaft had been left in an unsafe condition, and in consequence some of the " bind " fell on the man's head and injured him severely. The plaintiff was ignorant of the danger under which he was working, but one of the defendants, being the super- intendent of the mine, was of course aware of it. On these facts it was held that the action could be maintained. As a rule, a servant cannot bring an action against his master for an injury sustained in the course of the service. All the ordinary risks of the service, including the risk of one of his fellow- servants engaged in a common employment negligently causing him an injury, ho is taken to have contemplated at the time of the contract, and to have made allowance for in his wages (d). Until 1880 there were not many exceptions to this rule. But it was the master's duty to take reasonable precautions to insure the safety of his servants. Thus, if he had omitted to provide competent fellow-servants, or safe and efficient machinery, or if his (d) See Wigmore r. Jay (1850), 5 Ex. 354 ; 19 L. J. Ex. 300; Charles v. Tavlor (1878), 3 C. P. D. 492 ; 38 L. T. 773 ; "Wilson v. Merry (1868), L. R. 1 Sc. App. 326 ; 19 L. T. 30 ; Swainson v. N. E. Ry. Co. (1878), 3 Ex. D. 341 ; 47 L. J. Ex. 372 ; Morgan v. Yale of Xeath Ry. Co. (1865), L. R. 1 Q. B. 149 ; 35 L. J. Q. B. 23 ; Johnson v. Lindsay, [1891] A. C. 371 ; 65 L. T. 97; Cameron r.Nystrom, [1893] A. C.308; 62 L. J. P. C. 85; Medleys. Pinkney Steamship Co., [1894] A. C. 222 ; 63 L. J. Q. B. 419. ACTION AGAINST MASTERS. 391 own personal negligence — or even that of a person who might be regarded as a deputy master — had brought about the accident, he was not exempt from liability ; unless indeed where, as in the case of a servant being very well aware of the dangerous machinery he was working with, the maxim volenti non fit injuria had applica- tion (c). Though the doctrine of common employment has not by any Employers' means been abolished yet, — whether such a consummation is to t 1c 'i VqIq be wished or not, — the Employers' Liability Act, 1880 (43 cc 44 Yict. c. 42), gives "workmen" increased rights of action against their masters for personal injuries sustained during the service. "As Historical far back," says Mr. Justice Cave, in his very clear judgment in ^^ justice Griffiths v. The Earl of Dudley (/), " as the date of the decision in Cave. Priestley v. Fowler, the law was that the workman could not recover for injuries sustained by him through the negligence of a fellow- servant. In Priestley v. Fowler this rule was said to be founded upon an implied contract between master and workman that the master should not be liable. The Courts of common law have always felt hesitation in holding that there could be any right of action otherwise than arising out of contract or tort. They there- fore applied the doctrine of implied contract, the effect of which, so far as a man's legal liability was concerned, was much the same as if there had been an express contract. The doctrine was ex- tended by Wilson v. Merry (g) to injuries caused to a workman by a foreman or person occupying a position of superintendence in the same employment. The Employers' Liability Act was passed to remove the difficulty arising from the decision in Wilson v. Merry. The effect of it is that the workman may bring his action in five ified cases, and the employer shall not be able to say in answer that the plaintiff occupied the position of workman in his service, and must therefore be taken to have impliedly contracted not to hold the employer liable. In other words, the legal result of the plaintiff being a workman shall not be that he has impliedly con- tracted to bear the risks of the employment." Let us proceed to consider the cases in which this new Act gives Eights of a workman the right to sue his employer. underlet of 1880. (e) See Murphy v. Smith (1865), L. J. Ex. 521 ; Senior v. Ward 19 C. B. N. S. 301 ; 12 L. T. 605 ; (1859), 1 E. & E. 385 ; 28 L. J. Ashworth v. Stanwix (1861), 30 Q. B. 139. I. J. Q. B. 183; Webb*. Tarrant (/) (1882), 9 Q. B. D. 357 ; 53 (1856), 18 C. B. 797 ; Allen v. Now L. J. Q. B. 543. Co. (1876), 1 Ex. D. 251 ; 15 (?) (186s), L. R. 1 H.L. Sc. 326; L. J. Ex. 668 ; Woodley v. Met. 19 L. T. 30. By. Co. (1877), 2 Ex. 1). 384 ; 46 man. 392 ACTION AGAINST MASTERS. The first question is, Who is a "workman"? The 8th section of the Act says — "Work- "The expression 'workman' means a railway servant and any person to whom the Employers and Workmen Act, 1875 (h), applies." The guard of a goods train, however, has very recently been held not to be a " workman " within the meaning of the Act (i). Turning to the Act referred to, we find that "The expression 'workman' does not include a domestic or menial servant (k), but, save as aforesaid, means any person who, being a labourer, servant in husbandry, journeyman, artificer, handicraftsman, miner, or otherwise engaged in manual labour, whether under the age of twenty-one years or above that age, has entered into or works under a contract with an employer, whether the contract be made before or after the passing of this Act, bo express or implied, oral or in writing, and be a contract of service or a contract personally to execute any work or labour." Sect. 13 provides that the Act " shall not apply to seamen, or to apprentices to the sea service." The term "workman," as above defined, includes one who has con- tracted personally to execute manual work, although he is assisted by others whom he selects and pays (/). But in Morgan v. London General Omnibus Co. (m), it was held that the conductor of an omnibus was not entitled to the benefit of the Employers' Liability Act. "I cannot think," said Brett, M.B., "that he falls within any of the classes enumerated ; he is not ' engaged in manual labour,' he does not lift the passengers into and out of the omnibus; it is true that he may help to change the horses, but his real and substantial business is to invite persons to enter the omnibus and to take and keep for his employers the money paid by the passengers as their fares ; in fact, he earns the wages becoming due to him through the confidence reposed in his honesty." The driver of a tram car, too, has been held not to be entitled to the benefit of the Act(«); but the driver of a cart, which he helped to load and unload, in the employment of a wharfinger who, for the purposes (//) 38 & 39 Vict. c. 90. 182 ; 50 L. J. M. C. 48. (i) Hunt v. G.N. Ry. Co., [1891] (w) (1884), 13 Q. B. D. 832 ; 53 1 Q. B. 601 ; 60 L. J. Q. B. 216. L. J. Q. B. 352 ; and see Jackson (k) A potman in a public-house v. Hill (1884), 13 Q. B. D. 618; is not a " workman," as his duties 49 J. P. 118 ; Brown v. Butterley are substantially of a menial or Coal Co. (1885), 53 L. T. 964 ; 50 domestic nature ; Pearce v. Lans- J. P. 230. downe (1893), 62 L. J. Q. B. 441 ; («) Cook v. North Metropolitan 69 L. T. 316. Tramways Co. (1887), 18 Q. B. D. (I) Grainier v. Aynsley, and 683 ; 56 L. J. Q. B. 309. Bromley v. Tarns (1880), 6 Q. B. D. ACTION AGAINST MASTERS. 393 of his business, is the owner of carts and horses, is a " -workman " within the Act (o). In the recent case of Bound v. Lawrence, Grantham, J., and Smith, J., differed as to whether a grocer's shop assistant was a "workman"; his duties comprised serving customers in the shop from behind the counter, writing down their orders, making up parcels of goods, carrying parcels up to eighty- four pounds weight to the cart at the door from the shop, occa- sionally carrying sides of bacon from the shop door, where hanging, into the shop, each Monday bringing from the cellar bags of sugar, boxes of soap, and sides of bacon, occasionally assisting at the pulley in getting up goods from the cellar, and occasionally wheeling goods in a truck from the warehouse to the shop. But the Court of Appeal held that he was not a " workman " within the meaning of the Act, as the manual labour was only incidental and accessory to his real and substantial employment, which was that of a salesman ( If the workman has been hurt through a preventible defect in the condition of the ways, works, machinery, or plant used in his master's business {rj) ; or through the negligence of a superinten- dent(r); or of any fellow-servant whose orders he had to obey, and (o) Yarmouth v. France (18S7), 19 Q. B. D. 647 ; 57 L. J. Q. B. 7. (p) [1892] 1 Q. B. 220 ; 61 L. J. M. C. 21. (q) The Act applies to the case of plant being unfit for the purpose for which it is used, though no part of it is shown to be unsound. See Smith v. Baker, [1891] A. C. 325 ; 60 L. J. Q. B. 683. In Cripps v. Judge (1S84), 13 Q. B. D. .383 ; 53 L. J. Q. B. 517, the plaintiff had been injured by the breaking of a ladder, "which may have been good enough for ordinary purposes, but -which was insufficient for the particular purpose for which it was being used, and he was held en- titled to recover, Heske v. Samuel- son (1883), 12 Q. B. D. 30 ; 53 L. J. Q. B. 45, being approved and fol- lowed. See also Corcoran v. East Surrey Ironworks Co. (1888), 58 Xi. J. Q. B. 145; Moore v. Gimson (1889), 58 L. J. Q.B. 169; Morgan v. Hutchins (1890), 59 L. J. Q. B. 197; 38 W. R. 412; Branni Robinson, [1892] 1 Q. B. 344; 61 L. J. Q. b. 202. But in McGiffin v. Palmer's Shipbuilding Co. (1882), 10 Q. B. D. 5 ; 52 L. J. Q. B. 25, it was held that ' ' any defect in the condition of the ways ' ' meant a defect of a permanent or quasi- permanent nature, so that an action could not be brought for an injury caused by a piece of iron having been negligently left projecting into the roadway. See also Paley v. Garnett (1885), 16 Q. B. D. 52 ; 34 V\~. R. 295 ; Howe r. Finch (1886), 17 Q. B. D. 187 ; 34 Yv. R. 593; Pegram v. Dixon (1886), 55 L. J. Q. B. 447; 51 J. P. 198; Walsh v. AYhfteley (1888), 21 Q. B. D. 371 ; 57 L. J. Q. B. 580 ; Wilk-tts r. Watt, [1892] 2 Q. B. 92; 61 L. J. Q. B. 540. Defect in the condition of machinery in- cludes the absence of proper means to secure safety in the operation for which the machinery is used : Stanton v. Scrutton (1893), 62 L. J. Q. B. 405; 5 R. 24 1. (r) In Osborne v. Jackson (1883), 11 Q. B. D. 619; 48 L. T. 642, it was held that a man might be "in the exercise of superintendence," though at thr timo voluntarily agisting in manual labour; and Shaffers v. General Steam Naviga- tion Co. (1883), 10 Q. B. D. 356; 52 394 ACTION AGAINST MASTERS. was obeying, at the time of the accident (s) ; or through a fellow - servant's obedience to stupid rules or instructions of his master (t); or through the negligence of a fellow-servant having the charge or control of airy signal, points, locomotive engines, or train upon a railway (u); in all these cases, the workman (or, if he dies, his representatives) may sue his employer for compensation (a;). If, however, he was previously aware of the defect or negligence which caused the injury, he must have told his master about it, or he will be out of Court altogether (*/). The defence based upon the maxim L. J. Q. B. 260, was distinguished on the ground that " the negligent person there had two duties, and was not negligent in his duty of superintendence so as to cause the accident." (s) See Millward v. Midland Railway Co. (1884), 14 Q. B. D. 68 ; 51 L. J. Q. B. 202, where the plaintiff, a boy of 11, employed by a railway company as a van guard, had met with an accident (iron window frames falling on him) through obeying the directions of the driver, and was allowed to re- cover. But see also Bunker v. the same railway company (1882), where another boy who had done what his foreman told him to do was less fortunate in his litigation. " In this particular instance," said the Court, "the plaintiff, being under the age of 15, knew that by the rules of the defendant company he was not allowed to drive ; he therefore was not bound to obey this order, as the foreman was not a person to compel his obedience to it." (47 L. T. 476 ; 31 W. R. 231.) See also Kellard r. Rooke (18S8), 21 Q. B. D. 367 ; 57 L. J. U. B. 599; Bay v. Wallis (1887), 51 J. P. 519; Howard v. Bennett (1888), 58 L. J. Q. B. 129; 60 Li. T. 152 ; Snowden v. Baynes (1890), 25 Q. B. D. 193 ; 59 L. J. Q. B. 325 ; and Wild v. Waygood, [1892] 1 Q. B. 783; 61 L. J. Q. B. 391 ; where it was held that in order to establish liability under sect. 1, sub-sect. 3 of the Act, it is not necessary that conformity to the order should be the causa causans of the injury, though there must be an intimate connection between the negligence, the injury, and the conformity to the order. (t) Rules or bye-laws having the sanction of a government department cannot be objected to as improper or defective. — Sect. 2, sub-s. 2. And see "Whatley v. Halloway (1S90), 62 L. T. 639; 54 J. P. 615; Baddeley v. Granville (1SS7-, 19 Q. B. D. 423 ; 56 L. J. Q. B. 501. [a) The term ' ' railway ' ' applies to a temporary railway laid down by a contractor for the purposes of the construction of works : Doughty r. Firbank (1883), 10 Q. b7 D. 358 ; 52 L. J. Q. B. 480. But a steam crane, fixed on a trolly and propelled by steam along a set of rails, is not "a locomotive engine " within the section : Murphy v. Wilson (1SS3), 52 L. J. Q. B. 524 ; 4S L. T. 788. Trucks upon a siding in a goods yard are " upon a railway," for the sidings form a part of the line : Cox v. G. W. Ry. Co. (1882), 9 Q. B. D. 106 ; 30 W. R. 816. In Gibbs v. G. W. Ry. Co. (1881), 12 Q. B. D. 208 ; 53 L. J. Q. B. 513, it was held that a person who was employed by a railway company to clean, oil, and adjust the points was not a " person having the charge or control" of them. (.') Sect. 1 ; and see Robins v. Cubitt (1881), 46 L. T. 535. (i/) Sect. 2, sub-s. 3 ; and see Stuart v. Evans (1883), 31 W. R. 706 ; 49 L. T. 138 ; Weblin v. Ballard (1886), 17 Q. B. D. 122; 21 W. R. 455 ; Griffiths v. London and St. Katharine Docks Co. (1884), 13 Q. B. D. 259 ; Martin v. Con- nah's Quay Alkali Co. (1885), 33 W. R. 216. In the last-mentioned case a waggon was in a defective state, of which the plaintiff was ACTIONS AOAIXST MASTERS. 595 " vt h nti non fit ■injuria " is not affected by the Employers' Liability Act, 1880 (z). Written (a) notice (which, however, may be excused on good Conditions grounds in case of death), giving the name and address of the person ^jJb^fut injured, and stating in ordinary language the em's, and date of the of 1880. injury, must be served (b) on the employer within six weeks, and the action must be commenced (in the county court, unless re- moved (c) on the application of either party) within six months of the accident. In the case of death, the action may be commenced any time within twelve months from the time of death {: L. J. Q. B. 7 ; Thrassell v. Handyside (18S8), 20 Q. B. D. 359 ; 57 L. J. Q. B. 317 ; Memberv v. Great Western Rv. Co. (1889), 14 App. Cas. 179 ; 58 L. J. Q. B. 563; and Smith v. Baker, [1891] A. C. 325 ; CO L. J. Q. B. 683. (a) Movie r. Jenkins (1881), 8 Q. B. D. 116; 51 L. J. Q. B. L12; and see Keen v. MillwaH I lock Co. (1882), 8 Q. B. D. 482: 51 L. J. Q. B. 277. The notice may prob- ably be contained in several (b) As to mode of service. Bee Adams v. Nightingale (1882), 72 L. T. 424. (c) An action may he removed into the Superior Court (1) by cer- tiorari, (2) by order of the High Court, or (3) by order of the county court where it turns out that the amount is beyond the jurisdiction of the countycourt. See the recent case of Munday v. Thames Iron- works. &c. Co. (1882), 10 Q. B. D. 59; 47 L. T. 351. (d) Sects. 4 and 7. (/■) Sect. 7. In Carter v. Drys- dalo (1883), 12 Q. B. D. 91 ; 32 W. R. 171, the plaintiff's notice did not give the date of the injury, but the omission was held to be of no consequence. See also Beckett v. Manchester Corporation (1888), 52 J. P. 346; Previdi v. Gatti (188S), 58 L. T. 702; 36 W. R. 670. ( f) Per Cave, J., in Stone v. Hyde I 882 , 9 Q. B. D. 76 ; 51 L. J. Q. B. 452; and see Clarkson v. Musgrave (1882), 9 Q. B. D. 386 ; •'■I L. J. Q. B. '>-■'>. Sec also post, p. 179. 396 ACTIONS AGAINST MASTERS. Amount recover- able under Act of 1880. Contract- ing out of Act. Probable Amend- ment Act. Volun- teers. Servant lent to third party. The Petrel. The plaintiff in an action under the Employers' Liability Act, 1S80, cannot recover more than " such sum as may be found to be equivalent to the estimated earnings, during the three years preceding the injury, of a person in the same grade employed during those years in" a similar employment and the same dis- trict ((/). In Borlick v. Head (//) it was held that a plaintiff might give evidence, not only of the wages which he had been earning with the defendants, but also of what he had been getting for over- time with another employer. " Section 3 of the Employers' Liability Act, 1880," said Cave, J., "does not give a measure of damages, but the limit of the maximum damages which may be awarded under that Act." A contract by a workman not to claim compensation for personal injuries under the Act is valid ; and, if the injury results in death, destroys the surviving relatives' right of action under Lord Camp- bell's Act (t). It is proposed by many persons to amend the Employers' Liability Act by preventing persons from contracting out of it, by checking the removal of cases into superior Coru'ts, by abolishing the neces- sity for notice, by raising the limit of compensation recoverable, by extending the benefits of the Act to seamen, and in other ways. A person who volunteers to assist servants engaged in their work becomes their fellow- servant so far as an action for personal in- juries against the employer is concerned (k). But the consignee of goods who, with the employer's assent, assists the employer's ser- vants to unload is not a volunteer (?). If a person lends his servant to another for a particidar employ- ment, the servant, for anything done in that particular employment, must be considered as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him (m). It may be here mentioned that it has been recently decided that where two vessels came into collision with each other, belonging to the same owners and the same line, and frequenting the same port (ff) Sect. 3. (>/) (1886), 34 W. R. 102; 53 L. T. 909. (i) Griffiths v. Dudley (1882), 9 Q. B. D. 357; 51 L. J. Q. B. 543. (/.-) Degg v. Midland Ry. Co. (1857), 1 H. & N. 773; 26 L. J. Ex. 171 ; and see Abraham v. Rev- nolds (1860), 5 H. & N. 143 ; 8 W. R. 181 ; Potter v. Faulkner (1861), 1 B. & S. 800; 31 L. J. Q. B. 30. (!) Wright v. L. & 1ST. W. Ry. Co. (1876), 1 Q. B. D. 252 ; 45 L. J. Q. B. 570 ; and see Holmes v. N. E. Ry. Co. (1871), L. R. 6 Ex. 123; 40 L. J. Ex. 121. (m) Donovan v. Laing, [1893] 1 Q. B. 629 ; 63 L. J. Q. B. 25 ; following Rourke v. White Moss Colliery Co. (1877), 2 C. P. D. 205; 40 L. J. C. P. 283. And see Union Steamship Co. v. Claridge, [1894] A. C. 185 ; 63 L. J. P. C. 56. NEGLIGENCE OF RAILWAY COMPANIES. 397 and riyer in which the collision occurred, the master and crew of one vessel are not in a common employment with the master and crew of the other vessel (n). Liability of Contracting Company for Negligence of a Second Company. THOMAS v. RHYMNEY RAILWAY CO. (1871) [H9-J [L. E. 6 Q. B. 2G6 ; 40 L. J. Q. B. 89.] 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 Yale 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 con- tract 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 Yale 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 Yale Company, carrying no tail light, though the night was very dark, had started on the same line of rails. The consequence was that Mr. Thomas's («) The Petrel, [1893], P. 230 ; 62 L. J. P. 92. 398 NEGLIGENCE OF RAILWAY COMPANIES. train ran into the engine and tender, and Mr. Thomas, with other passengers, was much hurt. The question was whether the Rhyrnney 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. Blake's case. Mr. John cm board the steamer. Contract- ing com- pany not respon- sible for collateral operations. In deciding Thomas v. The Ehymnoy By. Co., the judges fol- lowed a case of Great "Western By. Co. v. Blake (o), 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 con- ferred on them by Act of Parliament or by arrangement. The principle is not confined to railway companies. A Mr. John wished to go by the defendant's steamboat from Milford Haven to Liverpool. Passengers embarking 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 negbgence (presumably) of Mr. Williams, a certain hatchway on board this hulk was left unprotected, and Mr. John after taking his ticket fell down it(p). For this disaster the steamboat proprietor was held responsible on the Blake and Bhymney principles, namely, that he must be taken 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. In a case some years ago a gentleman took a ticket from the Midland Bailway Company to be carried by them on their line from Leeds to Sheffield. The London and North Western Bailway Company had running powers over a portion of the line, and through the driver 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 con- nect 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 (o) (1862), 7 II. & N. 9S; L. J. Ex. 346. 31 (/;) John v. Bacon (1870), L. It. 5 C. P. 437 ; 33 L. J. C. P. 365. NEGLIGENCE OF RAILWAY COMPANIES. 399 whom they have no control whatever, and of whose services they do not make use " (7). A railway company may protect itself by an unsigned condition Effect of from liability for the loss of goods beyond its own line, the Eailway ao - auis t and Canal Traffic Act only having reference to a company's own liability. line. The chief authority for this is a case where a person, having taken a ticket from the South Eastern Eailway Company to go from London to Paris, lost his portmanteau between Calais and Paris on the Great Northern of France Eailway (/■). In a recent case it appeared that a Mr. Burke had taken from the South Eastern Eailway Company a return ticket to Paris. On the ticket was a 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 Eailway. But it was held that the condition, though they had not taken any sufficient steps to bring it to the plaintiff's notice, absolved them from responsibility (s). As to when the injured traveller can sue the company that has Suing the been negligent, instead of the company that has given him a ticket, conirmnv the recent cases of Foulkes v. Metropolitan By. Co. (/) and Hooper v. L. & X. AY. By. Co. (») may be consulted. Other cases that may be referred to on the subject-matter of this Other note are Daniel v. Met. Ey. Co. (1871), L. E. 5 H. L. 45; 40 L. J. cases " C. P. 121 ; Birkett v. Whitehaven Junction Ey. Co. (1859), 4 H. & N. 730; 28 L. J. Ex. 348 ; Buxton v. N. E. Ey. Co. (1868), L. E, 3 Q. B. 549 ; 37 L. J. Q. B. 258 ; Muschamp v. Lancaster and Preston Ey. Co. (1841), 8 M. & W. 421; 5 Jur. 656; Coxon v. Or. W. Ey. Co. (1860), 5 H. & X. 274; 29 L. J. Ex. 165; Welby v. West Cornwall By. Co. (1858), 2 II. & X. 703; 27 L. J. Ex. 181 ; Collins v. Brist. & Ex. Ey. Co. (1860), 29 L. J. Ex. 41. (?) Wright v. Midland Ey. Co. 10 Q. B. D. 178 ; 52 L. J. Q. B. (1873), L. It. 8 Ex. 137 ; 42 L. J. 121; Richardson v. Bowntree, Ex. 89. [1894] A. C. 217 ; 63 L. J. Q. B. (r) Zunz v. S. E. By. Co. (1869), 283. See also ante, p. 250. L. R. 4 Q. B. 539 ; 38 L. J. Q. B. (fl (18S0), 5 C. P. D. 157 ; 49 209. L. J. C. P. 361. (*) Burke v. S. E. Ey. Co. (1879), (w) (1880), 43 L. T. 570; 50 L.J. 5 C. P. D. 1 ; 49 L. J. C. P. 107 ; Q. B. 103. and see Watkins r. Bymill (1883), 400 EMPLOYERS OF CONTRACTORS. Person Employing Contractor not Generally Responsible. [120.] QUARMAN v. BURNETT. (1840) [0 M. & W. 499; 4 Jot. 969.] The defendants were a couple of elderly ladies residing in Moore Place, Lambeth. They kept a carriage of their own, hut neither horses nor coachman, and they were in the habit of hiring both from a job-mistress named Mort- lock. They generally had the same horses, and always the same coachman, a steady respectable 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. 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. His confidence, however, was misplaced. The horses got frightened at something, and bolted, finally upsetting the plaintiff and severely injuring him. The question now was whether Kemp was the servant of the 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 similar circumstances tending to show that the defendants were the domincB pro tempore; but in the end it was held that they were not liable (x). (.<•) The same poiut lias been pre- cussed, but through an equal divi- vidusly (in Laugher v. Pointer sion left undecided. (1826), 5 B. & C. 547) fully dis- EMPLOYERS OF CONTRACTORS. 401 REEDIE v. LONDON & NORTH WESTERN [121.] RAILWAY CO. (1849) [4 Exch. 244 ; 20 L. J. Ex. 65.] About forty 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 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 contractor's work- men a big stone fell from above and killed him. This action was brought by the widow under Lord Campbell's Act ; but she was unsuccessful, as the work- man whose negligence had caused Mr. Reedie's death was considered not to be a servant of the railway company, notwithstanding their power to dismiss him for incom- petence. To make one person responsible for the negligence of another, it Person must be shown that the relation of master and servant subsisted ^tractor between them. not gene- " I apprehend it to be a clear rule," said Wffles, J., in 1870, " in gj^jj? 16 ascertaining who is liable for the act of a wrong-doer, that you tractor's must look to the wrong-doer himself or to the first person in the ncyl'S 01100 - 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 " (//). (y) Murray v. Carrie (1870), L. R. G C. P. 24 ; 40 L. J. C. P. 26. S. — C. l> 1) 402 EMPLOYERS OF CONTRACTORS. Jones v. Liverpool Corpora- tion. Excep- tions. Inter- ference. Illegality. Quarman v. Burnett was followed in the recent case of Jones v. the Liverpool Corporation (z), where a person named Dean had contracted with the corporation, as urban sanitary authority, to supply by the day a driver and horse for their watering-cart. In an action to recover damages for injuries caused by the negligent conduct of the driver whilst in charge of the cart it was held that the defendants were not liable. A contractor exercising an independent employment is not the servant of the person who engages his services, and does not make such person liable for any torts he or his servant may commit («). Nor, again, is a sub-contractor the servant of the contractor who has employed him. A railway company entered into a contract with A. to make part 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 (6). There are, however, some exceptional cases in which a person employing a contractor is liable for the contractor's wrongful acts : — 1. Where 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 roadside. 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, and a person driving home was upset and injured. In an action by this person against the proprietor, Quarman v. Bur- nett 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 the gravel, and the proprietor had busied himself about it(c). 2. Where the thing 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 («) (1885), 14 Q. B. D. 890; 54 L. J. Q. B. 345. This case was discussed in Donovan v. Laing, [1893] 1 Q. B. 629 ; 63 L. J. Q. B. 25. (a) Milligan v. Wedge (1840), 12 Ad. &E. 737; 1 Q. B. 714. (b) Knight v. Fox (1850), 5 Ex. 721; 20 L. J. Ex. 9. (e) Burgess v. Gray (1845), 1 C. B. 578"; 14 L. J. C. P. 184. EM PLOVERS OF CONTRACTORS. 403 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 to do something lawful and to do something unlawful (d). 3. Where tJte thing contracted to he done is perfectly lawful in itself, Injurious but injurious consequences must in the natural course of things arise, aue Q C " es unless effectual means to pn vent them are adopted. not The defendant wishing to rebuild his house, employed a contractor | IJ^Jj. to pull it down and erect a new one. The contractor undertook the Bower v. risk of supporting the plaintiff's house during the work, and to make Peate. good any damage and satisfy any claims arising thereon, but the defendant was held liable for injury to the plaintiff's house, caused by the insufficiency of the means taken by the contractor to support it («)■ The same thing was held in Hughes v. Percival (/), which was Hughes v. also a case of dangerous building operations. And this principle P erciTa l' was again approved and applied in the recent case of Black v, q^ t-' Christchurch Finance Co. (g). church 4. Where an employer is bound by statute to do a thing efficiently. p 111 ™ 06 A railway company were authorized by Act of Parliament to make an opening bridge over a navigable river. They employed a obligation contractor, and that gentleman ingeniouslv made them a bridge to do thing . properly, which woidd not open. The plaintiff's vessel was in consequence prevented from navigating the river, and the company were held responsible to him (/;). The following cases may also be referred to on the subject-matter Other of this note :— Gray v. Pullcn (1864), 5 B. & S. 970; 34 L. J. Q. B. cases - 265 ; Glover v. East Lond. Waterworks Co. (1868), 17 L. T. 475 ; 16 W. E. 310 ; Blake v. Thirst (1863), 2 LL & C. 20; 32 L. J. Ex. 188; Bush v. Steinman (1799), 1 B. & P. 404; Angus v. Dalton (1881), 6 App. Ca. 740 ; 50 L. J. Q. B. 689. (d) Ellis v. Sheffield Gas Con- L. J. Q. B. 719. sumers' Co. (1853), 23 L. J. Q. B. ( rn ral scope of his authority to conduct the horse and cart during the / (/). But if the enterprise is entire/// the servant's — if, for instance, he Total takes his master's carriage without leave for purposes entirely his deviation, 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 tho (i) Whatman v. Pearson (18G8), L. R. 3 C. P. 422. 40G RESPONDEAT SUPERIOR. The clerk who left the water running. Duty to take care. The violin case. homeward journey, after crossing London Bridge, they should hare tun, i, I in tlie riyhf ; insfi-ad of that tiny turned to the left, and went in the ii/>jiosite direction on some private matter of the clerics. While thus going quite against their orders, they ran over a child. It was held that the city wine-merchant was not responsible (A-). It is obvious, however, that the distinction between these two cases is somewhat fine. A case on this subject is Stevens v. Woodward (/). The plain- tiffs were the well-known law publishers carrying on business at 119, Chancery Lane, and the defendants were some solicitors occupying premises over their shop. In the private room of one of the defendants was a lavatory, which the clerks had clear in- structions never to use. One afternoon, however, after this gentle- man had left, a disobedient clerk, thinking no one would ever know, went into the room to wash his hands. " / turned the tap," the young man afterwards said in evidence, " and the water did not flow ; and then I went out.'" But after the youth had gone out, the water did flow, and flowed so abundantly that a large number of treatises of Messrs. Stevens and Sons down below were spoilt. In an action against the solicitors for the mischief thus inflicted, it was held that the act of the clerk was not within the scope of his authority, or incident to the ordinary duties of his employment, and therefore his masters were not liable. ' ' The clerk," said Lindley, J. , " was a trespasser after his master had left" A master, however, is not liable for the negligence of his servant, though committed in the course of his regular employment, unless there is a breach of a duty to take care. An illustration of this is to be found in the recent case of Neuwith v. Over-Darwen Society (m). There a committee hired the defendants' concert-hall for an evening concert. The memorandum of letting contained no mention of a rehearsal, but a rehearsal was held on the same afternoon without objection. When it had ended, the plaintiff, without request or notice to the hall-keeper, placed his double-bass violin safely in a small room attached to the concert-hall, but in the way of a gas- bracket. The hall-keeper was the defendants' servant, and his (/.) Storey v. Ashton (1S69), L. R. 4 Q. B. 476 ; 38 L. J. Q. B. 223 ; and see "Wilson v. Owens (1885), 16 L. R. Ir. 225. The principle of the Coupe Co. v. Maddick, [1891] 2 Q. B. 413; 60 L. J. Q. B. 67G ; has no analogy, of course, to the subject now under discussion ; the point decided in that case being' that the bailee for hire of a chattel is responsible to the bailor for damage done to the chattel through negligence of the bailee's servant, though not done in the course of his employment. (0 (1881), 6 Q. B. D. 318; 50 L. J. Q. B. 231. But see this case distinguished in Ruddiman v. Smith (1889), 60 L. T. 708 ; 37 W. R. 528. (*») (1894), 63 L. J. Q. B. 290 ; 70 L. T. 374. RESPONDEAT SUPERIOR. 407 duties were to prepare and clean the rooms, open and shut the doors, and attend to the gas. In order to light the gas in the small room the hall-keeper moved the violin in such a way that it fell and was broken. It was held that there had been no such negligence on the part of the hall-keeper in the discharge of his duty towards the defendants as to render them liable to the plaintiff for the damage to his violin. "I am clearly of opinion," said Collins, J., "that there was no duty cast on the defendants. The case is extremely analogous to that of Lethbridge v. Phillips (h), where A. lent a picture to B., who wished to show it to C, and B., unknown to C, sent it to C.'s house, where it was accidentally injured. It was there held that C. was not responsible for not keeping the picture safely. He was under no contract, and therefore not liable." The point, of course, is often taken for the defence in cases of Was he this kind that the person causing the mischief was not the defen- serYan dant's servant so as to make him liable. An important class of such cases are those in which it is sought to make the proprietor of a cab liable for the negligence of the driver. Strictly, where the Cabby, driver has hired the cab from its owner for a fixed sum, the relation between the parties is that of bailor and bailee ; but it has been held that the effect of the Acts of Parliament regulating cabs is, in the interests of the public, to render the proprietor responsible for the torts of the driver. Thus, in the case of a cab proprietor who let out a cab and horses by the day, the amount paid for hue being independent of the cabman's earnings, where through the negli- gence of the latter his fare found himself minus his luggage, the proprietor was held responsible (o). And in the later case of Yenables v. Smith (p), the arrangement between the parties being the same as in Powles v. Hider, it was held that the proprietor of the cab was responsible to the plaintiff for a drunken driver's running him down. But in a more recent case than either of the above it has been held that where the driver hired a cab, and himself pro- vided the horse and harness, the owner of the cab was not answer- able for the consequences of the driver's negligence {e[). The legis- Traction lation regulating locomotives on highways is, in this respect, not en § ines- analogous to that dealing with hackney carriages (?•). In Steel Master of v. Lester (s) the action was brought by the owner of a wharf at share of (>/) (1819), Stark. .511. Q. B. D. 281 ; 58 L. J. Q. B. -156. (o) Powles v. Hider (1856), 6 El. [g) King v. Spun- (1881), 8 6 Bl. 207 ; 25 L. J. Q. B. 331 ; Q. B. D. 104; 51 L. J. Q. B. 105. and see Fowler t>. Lock (1872), L.R. (>) See Smith v. Bailey, [1891] 7 C. P. 272 ; 9 C. P. 751. 2 Q. B. 403 ; 60 L. J. Q. B. 779. (p) (1877), 2Q. B. D. 279; 46 L877), 3 C. P. D. 121 ; 47 L. J. Q. B. 470; approved in the L.J.C. P. 43. And see The Apollo, recent case of King v. London Little v. Port Talbot Co., [1891] Improved Cab Co. (1889), 23 A. C. 499 ; 61 L. J. P. 25 ; where profits. 408 RESPONDEAT SUPERIOR. Noisy church- men. Lending servants. Wilful and malicious acts of servants. 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 them by which Lilee not only had complete control over the vessel, but was entitled to two-thirds of the net profits. In spite of this agree- ment it was held that Mr. Lester must pay for the mending of Mr. Steel's wharf. In Lucas v. Mason (t), decided rather earlier than the two cases just referred to, the action was by a man who had been turned 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 la- has /'-id to another, committed while in the service of that other. This was held in a case in which some colliery proprietors had agreed with a Mr. Eoger Whittle that he should do some sinking 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, though the engineer remained their general servant, yet he was acting as Whittle's servant at the time of the accident («). A master is never responsible for the wilful and malicious act of his servant, even wbile acting in his employment. If, for example, a driver were to lose his temper, and, out of angry feeling, were to 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 without having in view his master's orders pursues that which his a dock company were held liable for damages to a ship resulting from the representations and negli- gence of the harbour-master. But see Wright v. Lethbridge (1891), 63 L. T. 572 ; 6 Asp. M. C. 558. (t) (1875). L. R. 10 Ex. 251 ; 44 L. J. Ex. 145. {//) Rourke v. White Moss Col- liery Co. (1877), 2 C. P. D. 205 ; 46 L. J. C. P. 283 ; and see Jones r. Corporation of Liverpool (1885), 14 Q. B. D. 890; 54 L. J. Q. B. 345 ; Johnson v. Lindsay, [1891] A. C. 371 ; 61 L. J. Q. B. 90 ; Cameron v. Nystrom, [1893] A. C. 308; 62 L. J. P. C. 85; Donovan v. Laing, [1893] 1 Q. B. 629; 63 L. J. Q. B. 25. RESPONDEAT SUPERIOR. 409 own malice suggests, he no longer acts in pursuance of the autho- rity eiven him, and his master will not be liable for such act" (x). It is scarcely necessary to say that a man is not liable criminally Crime of for the acts of his servants (y). But a master is civilly responsible > servan ■ for the tortious act of his servant committed in the course of his employment and for the master's benefit, notwithstanding that the act of the servant is a criminal act. And the master is not released from liability by reason that the servant, having been convicted of the offence, is, by virtue of sect. 45 of 24 & 25 Vict. c. 100, released from all further or other proceedings, civil or criminal, for the same cause (z). A person who puts another in his place to do a class of acts in his absence necessarily leaves him to determine, according to the circumstances which arise, when an act of that class is to be done, and trusts him for the manner in which it is done. Thus, in an action for assault, a railway company was held liable for the violence of a porter who roughly pulled a passenger out of a carriage because he thought that it was the wrong compart- ment («). And where the superintendent at a railway station with- out reasonable cause gave a passenger into custody for travelling without a ticket, and an Act of Parliament authorized this to be done in the case of passengers travelling without having paid their fare, the company was held liable (b). But it is not within the ordinary scope of a bank manager's authority to order the arrest or prosecution of offenders (c), nor has the booking-clerk of a railway company authority to give into custody a person whom he suspects of attempting to rob the till, after the attempt has ceased (d). Similarly a railway porter left in charge of a station does not [x Macmanus v. Crickett (1800), H. & N. 355; 30 L. J. Ex. 327; 1 East, 106. and Dyer v. Munday, supra. -/ Reg. v. Holbrook (1878), 4 (//) Goff v. Great Northern Ry. Q. B. D. 42 ; 4S L. J. Q. B. 113 ; Co. (1861), 3 E. & E. 672; 30 L. J. Chisholm v. Doulton (1889), 22 Q. B. 148; see also Moore v. (,». 15. D. 736 ; 58 L. J. Q. B. 133 ; Metropolitan By. Co. (1872), L. R. Roberts v. Woodward (1890), 25 8 Q. B. 36; 42 L. J. Q. B. 23; Q. B. D. 412 ; 59 L. J. M. C. 129. Edwards r. Midland Ry. Co. (1880), But see Niven v. Greaves (1890), 6 Q. B. D. 287 ; 50 L. J. Q. B. 54 J. P. 548, a case decided under 281 ; Lowe v. Great Northern Ry. . 96 of tlio PuLlic Health Act, Co. (1893), 62 L. J. Q. B. 524 ; 5 1875 ; and St. Helens Tramways R. 535. Co. v. Wood (1892), 60 L. J. M. C. (c) Bank of New South Wales v. Ill: 56 J. P. 70. Owston (1879), 4 App. Ca. 270; (z) Dyer v. Mnnday, [1895] 1 48 L. J. P. C. 25. Q. B. 712 : 61 L. J. Q. B. {d) Allen v. London and South (a) Bayley v. Manchester, Shef- Western Ry. Co. (1870), L. R. 6 field and Lincolnshire Ry. Co. Q. B. 65 ; 40 L. J. Q. B. 55 ; and (1873), L. R. 7 C. P. 415 ; 8 C. P. see the recent case of Abrahams v. MS; 42 L. J. C. P. 78; see also Deakin, [1891] 1 Q. B. 516; 60 Seymour v. Greenwood (1861), 7 L. J. Q. B. 238. 410 RUINOUS PREMISES. render the company liable in an action for false imprisonment when he gives an innocent person into custody on the charge of stealing the company's property (e). " There seems no ground for saying," remarked Keating, J., "that what was done was in the ordinary course of the business of the company, nor that it was for their benefit, except in so far as it is for the benefit of all the Queen's subjects that a criminal should be convicted." In the recent case of Eichards v. The AYest Middlesex Waterworks Co.(/), it was held that a bailiff who committed an unnecessary assault in levying a distress was not acting within the scope of his authority, and did not make his employers responsible. See also Furlong v. South London Tramways Co. (1884), 1 C. & E. 316; 48 J. P. 329. Ruinous Premises. 1124.] TODD r. FLIGHT. (1860) [9 C. B. N. S. 377 ; 30 L. J. C. P. 21.] Flight bought a shaky old house next door to the plain- tiff's chapel, and let it to a tenant. By-and-by 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 dangerous 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. Occupier The general rule is that the occupier, not the landlord, is respon- pnerally g^ig f or any injury happening to a third person through premises being out of repair. Thus, in Tarry v. Ashton (g), it was held that an occupier in the Strand who had a lamp projecting several feet (e) Edwards v. London and (/") (1885\ 15 Q. B. D. 660 ; 54 North Western By. Co. (1870), L. J. Q. B. 551. L. R. 5 C. P. 445 ; 39 L. J. C. P. (?) (1876), 1 Q. B. D. 314 ; 45 241. L. J. Q. B. 260. RUINOUS PREMISES. 411 across the pavement was bound to keep it in repair so as not to be The rotten dangerous to persons passing along the street, and was liable for g^iicf damage done to an old woman on whom it fell through want of repair, notwithstanding that he had employed a competent con- tractor to put it right. " There are only two ways," said the Court Landlord in a recent case(/<), where an insufficiently fastened chimney-pot Jaiy^^j got dislodged by a high wind and injured somebody, "in which cases, 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 tenant, the occupier, and the occupier alone, being prima facie liable: first, in the case of a contract by the landlord to do the repairs, where the tenant can sue him for not repairing; secondly, in the case of a misfeasance by the landlord, as, for instance, where he lets premises in a ruinous condition." Reference may be made to the recent case of Aliller v. Hancock(/). Miller v. The defendant was the owner of a building in the City, the different Haucock - floors of which were let by him separately as chambers or offices, the staircase, by which access to them was obtained, remaining in the possession and control of the defendant. The plaintiff, who had in the course of business called on the tenants of one of the floors, fell, while coming down the staircase, through the worn and defec- tive condition of one of the stairs, and sustained personal injuries. Upon these facts the Court of Appeal held, that there was by neces- sary implication an agreement by the defendant with his tenants to keep the staircase in repair, and, inasmuch as the defendant must have known and contemplated that it would be used by persons having business with them, there was a duty on his part towards such persons to keep it in a reasonably safe condition. But a landlord is liable who lets land with a continuous nuisance Letting upon it Avhich he takes no steps to remove : e.g.. with an obstructive . 1 . l . . nuisance. wall (k), or a stinking privy (/). lie is not liable, however, for a jr u i sance nuisance occasioned by the particular use to which the occupiers created by choose to put the premises (m), unless, indeed, the nuisance arises occu P ier - naturally and of necessity from the use of the premises as contem- plated by the demise (■«). Even where a nuisance arising from a defect in the premises does not exist at the commencement of a tenancy, a landlord may become liable for its continuance by (/<) Nelson v. Liverpool Brewery (/r) Eosewell v. Prior (1701), 2 Co. (1877), 2 C. P. D. 311; 46 Salk. 439 ; 12 Mod. 635. L. J.' 0. P. 675. (0 P- v. Pedly (1834), 1 A. & E. (i) [1893] 2 Q. B. 177 ; 09 L. T. 822 ; 3 N. & M. 027. 214. And see Smith v. London (»i) Rich v. Basterfield (1847), 4 and St. Katharine Docks Co. C. B. 783 ; 16 L. J. C. P. 273. L. R. 3 C. P. 320 ; 37 L. J. 0. P. (») Harris v. Jam< B L876), 35 217. L. T. 240; 45 L. J. Q. B. 545. 412 RUINOUS PREMISES. Bowen r. Anderson. Sandford v. Clarke. G-andy v. Jubber. allowing the tenant to continue in possession beyond the original term. In the recent case of Bowen v. Anderson (o), the plaintiff was injured through a defect in the condition of a coal-plate in the pavement in front of a house let by the defendant on a weekly tenancy. The evidence showed that the defect had existed for some months before the accident, but was conflicting as to whether the accident was owing to the neglect of the tenant to secure the plate properly, or to the defective state of the flagstone, or to the pre- sence of clay, which prevented the plate from fitting. The county court judge directed a verdict for the plaintiff, the amount of damages being agreed. But on appeal a new trial was ordered, it being held that a weekly tenancy does not determine without notice at the end of each week, but some notice is required to determine such a tenancy, that the continuance of the tenant's occupation on the expiration of each week did not render the defendant liable for defects then existing, as if there had been a re-letting, and that it was a question for the jury whether the injury was caused by the negligence of the tenant, or by a structural defect existing at the date of the original letting, for which the defendant would be liable. In delivering judgment, Wills, J., said : " I think the decision in Sandford v. Clarke ( p) was right, but I think the grounds on which the judgment was based wei*e not right. It is my own decision, and therefore I feel the more free to criticise it. I think we were mistaken in holding that a weekly tenancy comes to an end at the end of each week. The attention of the Court was not called to the case of Jones v. Mills (q), and that decision was overlooked in giving judgment." In Gandy v. Jubber (r), the tenancy was from year to year, and the Court of Queen's Bench held that the landlord might have re-entered at the end of each year, and that he was therefore liable for the consequences resulting from an accident caused by a grating in front of the house having been for some years in a defec- tive state. In the Exchequer Chamber the decision was overruled, on the ground that it proceeded upon a misapprehension of the peculiar relations existing between the landlord and tenant in the case of a tenancy from year to year. Such a tenancy requires something to be done between the landlord and tenant in order to determine the tenancy. (o) [1894] 1 Q. B. 164 ; 42 W. "R. 236. {p) (1888), 21 Q. B. D. 398; 57 L. J. Q. B. 507. See Woodf all's Landlord and Tenant, 15th ed., p. 776; and Roscoe's Nisi Prius, 16th ed. p. 1009. (?) (1861), IOC. B. N. S. 788; 31 L. J. C. P. 56. (r) (1864), 5 B. & S. 78, 485 ; 33 L. J. Q. B. 151 ; and unde- livered judgment contra in Ex. Ch. 9B. & S. 15. NEGLIGENT KEEPING OF FIRE. 413 In the absence of special circumstances, it is the duty of the Liability of tenant, and not of the landlord, to see that fences are in repair, so affective 1 that cattle cannot stray on the land of others (s). fences. Where the servant of the defendant causes the nuisance in the Whiteley course of his employment, the defendant may be liable, though v ' Pe PP er - neither occupier nor landlord; e.g., where the carman of a coal merchant delivering coals at a customer's removed an iron plate in the footway without taking proper precautions against acci- dents (t). The following cases may also be consulted : — Pretty v. Bickmore Other (1873), L. E. 8 C. P. 401 ; 28 L. T. 704; Gwinnell v. Earner (1875), cases " E. B. 10 C. P. 658; 32 L. T. 835; Payne v. Eogers (1794), 2 H. Bl. 349; Eussell v. Shenton (1842), 3 Q. B. 449; 2 G. & D. 573; White v. Jameson (1874), L. E. 18 Eq. 303; 22 W. E. 761 ; Bishop v. Bedford Charity (1859), 1 E. & E. 697 ; 29 L. J. Q. B. 53. Damage from Sparks of Railway Engines. — ♦ — VAUGHAN v. TAFF VALE RAILWAY CO. (1860) [125] [5 H. & N. 679 ; 29 L. J. Ex. 247.] Mr. Yaughan was the proprietor of a plantation adjoin- ing the embankment of the Taff Yale Railway Company. The grass growing in the plantation was of a very com- bustible nature, and so were some dry branches. In 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 defen- dants' engines, but they contended, and it was decided, (*) Chcct.liamf. Hampson (1791), (/) Whiteley v. Pepper (1877 . 2 4 T. It. 318. Q. B. D. 270 ; 4G L. J. Q. B. 43G. 414 NEGLIGENT KEEPING OF FIRE. Train frighten- ing horses. The vibra- tion case. Truman's case. that they were not responsible, as they were authorized to ■use such engines, and had adopted every precaution that science could suggest to prevent injury. In the earlier case of B. v. Pease (it), it had been decided that a railway company authorized by statute to use locomotive engines are not indictable for a nuisance if their engines frighten the horses of persons travelling along a highway running parallel to the line. "The legislature," said the Court, "must be presumed to have known that the railroad would be adjacent for a mile to the public highway, and consequently that travellers upon the highway would be in all probability incommoded by the passage of locomotive engines along the railroad. That being j>resumed, there is nothing unreasonable or inconsistent in supposing that the legislature in- tended that the part of the public which should use the highway should sustain some inconvenience for the sake of the greater good to be obtained by other parts of the public in the more speedy travelling and conveyance of merchandise along the new railroad." The leading case and the one just referred to were both approved in the great case of the Hammersmith Railway Company v. Brand (x), where it was held that the Lands Clauses Consolidation Act, and the Railway Clauses Consolidation Act, do not contain any pro- visions under which a person, whose land has not been taken for the purposes of a railway, can recover statutory compensation from the railway company in respect of damage or annoyance arising from vibration occasioned (without negligence) by the passing of trains, after the railway is brought into use, even though the value of the property has been actually depreciated thereby. The case of The London, Brighton and South Coast Railway Company v. Truman (y), is to the same effect. The occupiers of houses near the East Croydon Station were very much annoyed by the noise made by cattle and drovers brought on to the land of the railway company, but it was held that the company were protected by their Act against legal proceedings for a nuisance. The Yaughan, Pease, and Brand cases were followed, and the Hill case was distinguished. ' ' I think it is enough," said Lord Halsbury, («) (1832), 4 B. & Ad. 30 ; IN. & M. 690 ; and see Lea Conser- vancy Board v. Mayor of Hertford and others (1884), 1 C. & E. 299; 48 J. P. 628. (.<■) (1869), L. R. 4 H. L. 171; 38 L. J. Q. B. 265. See also the recent case of Harrison '•. S mth- Avark and Vauxhall Water Co., [1891] 2 Ch. 409; 60 L. J. Ch. 630. (?/) (1885), 11 App. Ca. 45; 55 L. J. Ch. 354 ; National Telephone Co. v. Baker, [1893] 2Ch. 186 ; 62 L. J. Ch. 699. But see R. v. Essex (1889), 14 App. Ca. 153 ; 58 L. J. Q. B. 594 ; Gas Light Co. v. St. Mn.ry Abbotts (1885), 15 Q. B. D. 1 ; 51 L. J. Q. B. 414. NEGLIGENT KEEPING OF FIRE. 415 L. C, referring to the last-mentioned case, "in discussing that case to say that the ground of the decision was one which distin- guished it from the present by reason of the very nature of the enactment which was then under discussion. The Eailway Acts, treated as a well-known and recognized class of legislation, were expressly and carefully distinguished from the permissive character of the legislation which your Lordships were then construing. Broadly stated, the distinction taken amounted to this, that a small-pox hospital might be built and maintained if it could be done without creating a nuisance ; whereas the Eailway Acts were assumed to establish the proposition that the railway might be made and used whether a nuisance were created or not." On the other hand, if a company have been guilty of negligence Negli- — indeed, if they have not adopted the latest appliances to prevent § ence - danger — their statutory authority will not help them (z). An im- portant case on this point is Smith v. The L. & S. TV. By. Co. (a). 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 lying about in heaps, instead of carting them all away. After the heaps had been there a fort- night, they were one 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 Smith, two hundred yards off. It was held that the defendants, though their engines were of the best possible construction, were responsible for the damage thus done. So it has been held to be actionable negligence to blow off steam at a level crossing (5). Moreover, if persons are not authorized by statute to run loco- No motive engines, and yet do so, they are liable for injuries resulting, statutory though negligence is expressly negatived (c). This is on the prin- ' U n y ' ciple of Fletcher v. Rylands(d), viz., that when a man brings or uses a thing of a dangerous nature on his own land, he must keep it in at his own peril. Further, where by statute a thing is permitted, not directed, to be Statutory done, it is not in general to be inferred that the light of action is authority, taken away for a nuisance caused by the doing of such thing, even m0 n law" rights reserved. (z) Fremantle v. L. & N". W. Ry. (b) Manchester South Junction Co. (1861), IOC. B. N. S. 89; 31 Ry. Co. v. Fullarton (1863), 11 L. J. C. F. 12 ; and see Geddis v. C. B. N. S. 54 ; 11 W. R. 754. Bann Reservoir (1878), 3 App. Ca. (V) Jones v. Festiniog Ry. Co. 130; Brine v. <-. W. Ry. Co. (1868), L. R. 3 Q. B. 733; 37 L.J. . 31 L. J. Q. B. 1D1 ; 2 B. & <>. B. 212. S. t02. [d) See ante, p. 356. («) (1870), L. R. GC.r. 11. 416 NEGLIGENT KEEPING OF FIRE. Small -pox hospitals. Traction engines. Rapier v. London Tramways Co. Other cases. if such nuisance is not due to any negligence in the manner of trie doing it. In virtue of this principle, some property owners at Ilampstead a few years ago managed to get rid of a srnall-pox hospital from their neighbourhood (c) ; and a farmer down in Wilt- shire got damages out of the owner of a traction engine, the sparks from which had in some unaccountable way sot on fire one of his stacks. "It is hardly contended," said Baggallay, L. J., "that the defendant is not liable at common law; but section 5 of the Locomotive Act, 1865, is relied upon as affording a defence. But I think it quite clear that the right at common law is preserved by section 12 " (/). Another good illustration of this principle is the recent case of Rapier v. London Tramways Co. () McKenzie v. McLeod (1834), (Z) (1865), 3 H. & C. 602 ; 33 10 Bing. 385 ; 4 M. & Scott, 249. S. — C. E E 418 SUPPORT FROM NEIGHBOURING LAND. Support from Neighbouring Land. [126.] SMITH v. THACKERAH. (1866) [L. K. 1 C. P. 564 ; 35 L. J. C. P. 276.] 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. 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 building on Smith's land, he would have suffered no appreciable damage by Thackerah's proceedings, it was held that he had no right of action. Sic utere Every man must so use his own property as not to injure his tuo. neighbour's. In virtue of this principle an owner of land is en- titled to require that his neighbour, whether he be the owner of tho 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 Un- its natural state. The most obvious common sense dictates that a ™n Me person has no business to load his own soil with buildings in such ings. 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 pre- I scription. This grant may be implied. For example, when one man sells 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 dangerously near to them (?/). And, even if there is no such easement by grant or prescription, yet, if the damage done to the dominant land is so considerable as to be actionable, damages may be recovered for Brown v. injury sustained by recently erected buildings. " The moment the Eobins. j ul ,y f oun d," said Pollock, C. B., in Brown v. Eobins(o), "that the subsidence of the land was not caused by the weight of the super- fa) Elliot v. N. E. Ey. Co. (o) (1859), 4 H. & N. 186 ; '28 (1863), 10 H. L. C. 333 ; 32 L. J. L. J. Ex. 250. And see Attorney- Ch. 402 ; and see Siddons v. Short General v. Conduit Colliery Co., (1877), 2 C. P. D. 572 ; 46 L. J. [1895] 1 Q. B. 301 ; 64 L. J. Q. B. C. P. 795. 207. SUPPORT FROM NEIGHBOURING LAND. 419 incumbent buildings, the existence of tbe bouse became un- important in considering tbe question of tbe defendant's liability. It is as if a mere model stood there, tbe weight of wbicb bore so small a proportion to tbat of tbe soil as practically to add notbing to it." Tbus, if in Smitb v. Thackerah it bad appeared tbat Smitb's land in its natural state would bave suffered appreciable damage by Tbackerab's well, Srnitb would bave been entitled to claim com- pensation for tbe injury occasioned to bis wall. Tbe case of Angus v. Dalton (p) is very important on tbis brancb Angus v. of tbe law. Tbe action was brougbt for damages in respect of Dalton - injuries to tbe plaintiff's coacb factory by pulling down tbe ad- joining bouse. After a dreadful amount of litigation, tbe plaintiff was successful ; it being beld tbat a rigbt to lateral support from adjoining land may be acquired by twenty years' uninterrupted enjoyment for a building proved to bave been newly built, or altered so as to increase tbe lateral pressure, at tbe beginning of tbat time, and tbat it is so acquired if tbe enjoyment is peaceable and without deception or concealment, and so open tbat it must be known tbat some support is being enjoyed by tbe building. But, as between adjoining bouses, tbe general rule is tbat tbere Adjoining is no obligation toivards a neighbour cast by law on the oivner of a nouses- house, merely as such, to keep it standing and in repair : all be is bound to do is to prevent its becoming a nuisance and falling on to bis neighbour's bouse (q). But a rigbt to support of tbe kind may be gained by grant, express or implied. Where, for instance, two houses are built by tbe same man, and depend on one another's support, there remains a muttial rigbt to support after they have passed into the hands of different owners (r). It is to be observed that the right to support which a man may Negli- have in favour of his land or buildings is qiute independent of the S ence * question of negligence. A man, of course, is always responsible to his neighbour for carrying out works on his own land in a negligent and improper way. In the important case of Bonomi v. Backhouse (s), the question Bonomi arose as to the time at which an actionable injury arises, and in tbe v' £ '" end it was held that it dates, not from the time of the commence- ment of tbe wrong- doing — the digging, for instance — but from the time of the plaintiff's first sustaining actual injury ; the effect of (j») (1881), 6 App. Ca. 740 ; 50 & K. 250 ; Solomon v. Vintners L. J. Q. B. 689. Co. (1859), 4 H. & N. 585; 28 L. (q) Chauntler v. Robinson (1849), J. Ex. 370; Latimer v. Official Co- 4 Ex. 163 ; 19 L. J. Ex. 170. operative Society (1885), 16 L. R. (r) Richards v. Rose (1853), 9 Ir. 305. Ex. 218; 23 L. J. Ex. 3 ; and see (*) (1861), 9 H. L. C. 503 ; 34 Hide v. Thornborough (1846), 2 C. L. J. Q. B. 181. be2 420 SUPPORT FROM NEIGHBOURING LAND. Darley Main Col- liery case. Land supported, by water. Highway supported by wall. Other cases. which, is, that ho will not necessarily bo barred by the Statute of Limitations from bringing his action seven or eight years after the defendant's commencing to do that which ultimately resulted in injury to the plaintiff. The recent case of Mitchell v. The Darley Main Colliery Com- pany (t), should be carefully studied. The plaintiff was the owner of some land at Darfield, near Doncaster, and in 1867 and 1868, but not afterwards, the defendants worked a seam of coal lying under and near to his land, which subsided in consequence of their exca- vations. Some cottages of the plaintiff standing on his land were damaged by the subsidence, and were repaired by the defendants. In 1882, a second subsidence of the plaintiff's land occurred, owing to the defendants' workings in 1867 and 1868, and the plaintiff's cottages were again damaged. In an action it was held (finally by the House of Lords) that the plaintiff's right to sue for the damage done to his cottages in 1882 was not barred by the Statute of Limitations («). An owner of land has no right at common law to the support of subterranean water. There is nothing, therefore, apart from con- tract, to prevent an adjoining landowner from draining his soil if for any reason it becomes necessary or convenient for him to do so (cc). Tn the case of the Highway Board of Macclesfield v. Grant (y), the action was brought to recover some money the plaintiffs had spent in repairing a wall supporting their highway. The wall belonged to the defendant, and the plaintiffs thought that, as the defendant and his predecessors had occasionally repaired it, he and his successors ought to go on doing so for ever. The defen- dant refused, and his objection was supported by Mr. Justice Loj>es, who considered that " any repairs done by the defendant or his predecessors in title were done for their own convenience, and not in consequence of any obligation." The following cases on the subject-matter of this note should also be consulted :— Eowbotham v. Wilson (1860), 8 H. L. C. 348 ; 30 (t) (1885), 11 App. Ca. 127 ; 55 L. J. Q. B. 529 ; overruling Lamb r. Walker (1878), 3 Q. B. D. 389; 47 L. J. Q. B. 451. (m) In connection with this case, see the case of Brunsden v. Hum- frey (1884), 14 Q. B. D. 141 ; 53 L. J. Q. B. 476, where it was held by the Court of Appeal (dissentiente, Lord Coleridge, C.J.) that a plain- tiff, who had recovered damages in the county court for injuries to his cab, could afterwards sue for per- sonal injuries arising out of the same act of negligence but which did not develop till after the earlier action had been brought, and the very recent case of Crumbie v. Wallsend Local Board, [1891] 1 Q. B. 503; 60 L. J. Q. B. 392. (x) Popplewell v. Hodkinson (1869), L. E. 4 Ex. 248 ; 38 L. J. Ex. 126. {;/) (1882), 51 L. J. Q. B. 357. NUISAXCES. 421 L. J. Q. B. 49 ; Partridge v. Scott (1838), 3 M. & W. 220 ; 1 H. & H. 31 ; Mundy v. Duke of Eutland (18S3), 23 Ch. D. 81 ; 31 W. B. 510; Humphries v. Brogden (1850), 12 Q. B. 739; 20 L. J. Q. B. 10; Corporation of Birmingham v. Allen (1877), 6 Ch. D. 284; 46 L. J. Ch. 673; Aspden v. Seddon (1876), 1 Ex. D. 496; 46 L. J. Ex. 353 ; Davis v. Treharne (1881), 6 App. Ca. 460 ; 50 L. J. Q. B. 665 ; Lemaitre v. Davis (1881), 19 Ch. D. 281 ; 46 L. T. 407 ; Bigby v. Bennett (1882), 21 Ch. D. 559; 40 L. T. 47; Normanton Gas Co. v. Pope and Pearson (1883), 52 L. J. Q. B. 629 ; 32 W. E. 134 ; Love v. Bell (1884), 9 App. Ca. 286 ; 53 L. J. Q. B. 257 ; Chapman v. Day (1883), 47 L. T. 705 ; and Dixon v. White (1883), 8 App. Ca. 833. Nuisances. SOLTAU v. DE HELD. (1851) [127.] [2 Sim. N. S. 133 ; 21 L. J. Ch. 153.] Mr. Soltau was a family man residing in a semi-detached house at Clapham. The adjoining house was, from 1817 to 1848, occupied as a private house, hut in the latter year it was hought by a religious order of Roman Catholics, calling themselves " The Redemptionist Fathers," and those gentlemen converted the house into a chapel, and appointed De Held, a Roman Catholic priest, to officiate therein. One of the first acts of Mr. De Held, on entering on the scene of his ministrations, was to set up a harsh and discordant bell, and to ring it at the most unnecessary times. As Soltau, speaking for himself and the neigh- bours generally, said plainly — " The practice we complain of is offensive alike to our ears and feelings ; disturbs the quiet and comfort of our houses ; molests us in our engagements, whether of business, amusement, or devo- tion ; and is peculiarly injurious and distressing when 422 NUISANCER. Public nuisance, when actionable. Iveson v. Moore. Benjamin v. Storr. Winter- bottom v. Derby. members of our household happen to be invalids ; it tends also to depreciate the value of our dwelling-houses." This was a complaint emanating, not from the general body of Claphamites, who, being at a greater distance, were more or less indifferent to the matter, but from those who were the greatest sufferers, the immediate neighbours, and it was on this ground of special annoyance that Mr. Soltau was considered entitled to relief. Nuisances are divided into two classes, public and private, and the rule is, that it is only in respect of the latter that an action can be brought. A public nuisance is suppressed by indictment or infor- mation ; it is the public that is supposed to be aggrieved by what the defendant has done, and individuals, as individuals, have nothing to do with it. To this rule Soltau v. De Held offers an exception, viz., that when the public nuisance is particularly obnoxious to an individual, it is considered, as far as he is concerned, to be also a private nuisance, and he may bring his action or apply for an injunction. To take a venerable illustration, "If A. dig a trench across the highway, this is the subject of an indictment ; but if B. fall into it, the particular damage thus sus- tained by him will support an action." The bell-ringing, in so far as it was a nuisance to all Clapham, was a public nuisance ; and the proper way to put it down was by indictment or information ; but, in so far as it was a nuisance to Mr. Soltau personally, it was a private nuisance, and an action lay. So in Iveson v. Moore (z) the obstruction of a highway, so as to prevent customers from coming to a colliery, was held to be an actionable nuisance ; and in Benjamin v. Storr (a) a coffee-house keeper in a narrow street near Covent Garden successfully went to law with some auctioneers who made an unreasonable use of the highway by their vans blocking up the approaches to his premises and intercepting the light, and by the offensive smells arising from the staleing of their horses. But mere delay caused by an obstruction of the highway, or the trouble and expense of removing it, being common to all, will not support an action (b). {z) (1700), 1 Ld. Raym. 486 ; and see Fritz v. Hobson (18S0), 14 Ch. D. 542; 49 L. J. Ch. 321. (n) (1874), L. R. 9 C. P. 400 ; 43 L. J. C. P. 162; and see Rose v. Miles (1815), 4 M. & S. 101 ; Hubert v. Groves (1794), 1 Esp. 148 ; and Rapier v. London Tram- ways Co., [1893] 2 Ch. 588 ; 63 L. J. Ch. 36. (b) Winterbottom ». Derby (1862), L. R. 2 Ex. 316 ; 36 L. J. Ex. 194 ; and see Ricket v. Metr. Ry. Co. (1867), L. R. 2 H. L. 175 ; 36 L. J. Q. B. 205. NUISANCES. 423 There is another important practical division of nuisances to People which attention is requested, viz., into those which cause damage P 11 ?* not , , . ° be too to property, and those which merely cause personal discomfort, fastidious. When a nuisance causes substantial damage to a man's property, he can always get compensation for it ; but he must put up with a good deal — there must be a real interference with the comfort of human existence — before he can successfully go to law for an annoyance of the other kind (c). A great deal, too, depends on the locality and circumstances. Import- What is a nuisance in one place may not be in another (<1). ance of . . v ' particular It is no answer to an action for a nuisance that the plaintiff knew circum- that there was a nuisance, and yet went voluntarily and pitched his stances - tent near it fe). Coming to s ' , a nuisau.ee. A man may be responsible for a nuisance, if it were the probable i nnocen t consequence of Iris act, although his intentions were not only innocent intention but praiseworthy ; as, for instance, where a publican erected an n0 escuse - urinal, but arranged the premises in such a way that a space left was habitually used for improper purposes (/). The acts of two or more persons may, taken together, constitute Two rights such a nuisance that the Court will restrain all from doing the acts son j_ etimes constituting the nuisance, although the annoyance occasioned by wrong, the act of any one of them if taken alone would not amount to a nuisance. The recent case of Lambton v. Mellish (g) affords a good illustration of this principle. The defendants were rival refresh- ment contractors at Ashstead Common in Surrey, who, with the view of attracting visitors to their respective merry-go-rounds and refreshment houses, made use of powerful organs. The noise occasioned by these organs was objected to by the plaintiff, a resi- dent in the vicinity, and the Court granted him an injunction restraining both defendants from creating the objectionable noise. " It was said for the defendant," said Chitty, J., "that two rights cannot make a wrong — by that it was meant that if one man makes (c) St. Helens Smelting Co. v. B. & S. 66; 31 L. J. Q. B. 286. Tipping (1865), 11 H. L. C. 642 ; See also Broder v. Saillard (1876), 35 L. J. Q. B. 66 ; and see Crump 2 Ch. D. 692 ; 45 L. J. Ch. 414 ; v. Lambert (1867), L. R. 3 Eq 409 : affirmed 17 L. T. 1 33 ; Walter v. Selfe (1851), 4 De G. & Sm. 315 20 L. J. Ch. 433 ; Salvin v. N Brancepeth Coal Co. (1874), L. R 9 Ch. 705 ; 44 L. J. Ch. 149 , Shotts Iron Co. v. Inglis (1882), 7 Robinson v. Kilvert (1889), 41 Ch. D. 88 ; 58 L. J. Ch. 392 ; Reinhardt v. Mentasti (1889), 42 Ch. D. 685; 58 L. J. Ch. 787. (c) Per Byles, J., in Hole v. Barlow (1858), 27 L. J. C. P. 208 ; 4 C. B. N. S. 334. App. Ca. 518 ; Walker v. Brew- (/) Chibnall v. Paul (1881), 29 ster (1867), L. R. 5 Eq. 25 ; 37 W. R. 536. As to a nuisance L. J. Ch. 33 ; Christie v. Davey, caused by the collecting of crowds, [1893] 1 Ch. 316; 02 L. J. Ch. see ante, p. 366. 439. iff) [1894] 3 Ch. 163 ; 63 L. J. (d) Bamford v. Turnley (1802), 3 Ch. 929. 424 NUISANCE*. Statutory- right to be a nuisance. Easement. Continuing nuisance. Rever- sioner suing for nuisance. The Attorney- General. Quia timet action. a noise not of a kind, duration, or degree sufficient to constitute a nuisance, and another man, not acting in concert with the first, makes a similar noise at the same time, each is responsible only for the noise made by himself, and not also for that made by the other. .... In my opinion each is separately liable I think the point falls within the principle laid down by Lord Justice James in Thorpe v. Brumfitt(/i). That was a case of obstructing a right of way, but such obstruction was a nuisance in the old phraseology of the law. He says : ' ' Suppose one person leaves a wheelbarrow standing on a way, that may cause no appreciable inconvenience ; but if a hundred do so, that may cause a serious inconvenience, which a person entitled to the use of the way has a right to prevent; and it is no defence to any one person among the hundred to say that what he does causes of itself no damage to the complainant. There is, in my opinion, no distinction in these respects between the case of a right of way and the case, such as this is, of a nuisance by noise. If the acts of two persons, each being aware of what the other is doing, amount in the aggregate to what is an actionable wrong, each is amenable to the remedy against the aggregate cause of complaint." It is a good defence, however, to an action for a nuisance to show that the act complained of was expressly authorized by statute (i) ; and sometimes the defendant may claim an easement which entitles him to annoy the plaintiff. But user which is neither physically preventible by the owner of the servient tenement, nor actionable, cannot found an easement (A'). Where the nuisance is of a continuing kind, so that successive actions may be brought, the jury cannot give damages for anything after the date of the commencement of the action [I). It is to be observed that when a nuisance is of a permanent nature, or injurious to the reversion, not only the tenant in posses- sion, but the reversioner also, may sue (m). In a modern case (n) it has been held that the Attorney- General may sue to restrain acts of interference with the public ways without proof of public injury. In Fletcher v. Bealey (o), it was held that, in order to maintain a (J,) (1873), L. R. 8 Ch. 650. (i) See Vaughan v. Taff Vale Ry. Co., ante, p. 413. (/?) Sturges v. Bridgman (1879), 11 Ch. D. 852 ; 48 L. J. Ch. 875. (I) Battishill v. Reed (1856), 18 C. B. 696 ; 25 L. J. C. P. 290. (w) Bedingfieldr. Onslow (1685), 3 Lev. 209 ; and see Kidgill v. Moot (1850), 9 C. B. 364 ; 19 L. J. C.P. 177; Young v. Spencer (1829), 10 B. & C. 145 ; 5 M. & R. 47 ; Cooper v. Crabtree (1882), 20 Ch. D. 589 ; 51 L. J. Ch. 544. (n) The Att.-Gen. v. Shrewsbury Bridge Co. (1882), 21 Ch. D. 752 ; 51 L. J. Ch. 746. (o) (1885), 28 Ch. D. 688; 54 L. J. Ch. 424 ; and see Ripon v. Hobart (1834), 3 My. & K. 169 ; Att.-Gen. v. Kingston (1865), 13 W. R. 888; 34 L. J. Ch. 481; SEDUCTION. 425 1 1 a in timet action to restrain an apprehended injury, the plaintiff must prove imminent danger of a substantial kind, or that the apprehended injury, if it does come, will be irreparable. The idaintiff was a paper manufacturer on the Jrwell near Manchester, and was terribly afraid of a large heap of refuse which the defen- dants, who were alkali manufacturers, were depositing on some land a mile or two higher up the river. Though there was a consider- able prospect of damage ultimately resulting, it was held that the plaintiff was premature in bringing his action, and an injunction was refused him. Seduction. TERRY v. HUTCHINSON. (1868) [128.] [L. E. 3 Q. B. 599; 37 L. J. Q. B. 257.] This case illustrates the law with reference to seduction. The plaintiff's daughter had been seduced by the defen- dant, and the question to be decided was in whose service was the girl at the time the seduction took place, the defendant denying that the daughter was in the service of her father, the plaintiff, at that time. The facts were as follows : the plaintiff's daughter, aged nineteen, was in the service of a draper at Deal. For misconduct in connection with a concert at Deal, her master dismissed her summarily, and she was on her way to her father's house at Canterbury when she was seduced in the railway carriage by the de- fendant. The Court, upon these facts, held that there was sufficient evidence that the girl at the time of her seduction was in the service of her father, the plaintiff, inasmuch as she was on her way to resume her former position as a Salvia r. North Brancepeth Coal 57 L. T. 849; and Att.-Gen. v. Co. (1874), L. R. '■) Ch. 70.") ; 14 Manchester Corporation, [1893] L. J. Ch.14'.) ; IVii.l.'l.Av r. Wort- 2 Ch. 87 ; 02 L. .J. Ch. 459 ley Union (1887), 57 L. J. Ch. 702 ; 426 SEDUCTION. A legal fiction. Proof of service. Daughter head of separate establish- ment. Governess on a visit home. Serving two masters. member of her father's family. " The girl," said the Court, "is under twenty-one, and is therefore prima facie under the dominion of her natural guardian ; and as soon as a girl under age ceases to be under the control of a real master and intends to return to her father's house, he has a right to her services, and therefore there was a construc- tive service in the present case." The action for seduction is based upon a fiction. The plaintiff is supposed to be the master of the girl seduced, and to have lost the benefit of her services by what the defendant has done to her. It is not necessary, however, for the plaintiff to prove any express con- tract of service. If he is the father, and his child is under age and not in actual service with someone else, service will be presumed ( p) ; and if he is not the father, or the girl is not under age, service will, if she was Hving under his roof, be presumed from such slight acts of household duty as making tea or milking cows (q). On the other hand, if the plaintiff's daughter was, at the time of the seduction, in the service of another man — though that other were himself the seducer — no action would lie (r). In Manley v. Field (s), the woman seduced rented a house and carried on the business of a milliner, her mother and the younger members of her father's family residing with her, and receiving part of their support from the proceeds of her business. The furniture in the house belonged to the father, who occasionally visited his family there, and contributed something to their support. It was held on those facts that there ivas no evidence of service. In Hedges v. Tagg (t), the plaintiff's daughter was in service as a governess, and was seduced by the defendant whilst on a three days' visit, with her employer's permission, to the plaintiff, her mother, for the purpose of attending some races at Oxford. During her visit she gave some assistance in household duties. In spite, however, of this fact, it was held she was not in her mother's service, and the action could not be maintained. Moreover, it would appear that where the girl is in the service of one man at the time of the seduction, and of another at the time of the pregnancy and illness, no action lies. The first master could (p) Evans v. Walton (1867), L. R. 2 C. P. 615 ; 36 L. J. C. P. 307. (q) Bennett v. Alcott (1787), 2 T. R. 166 ; Eist v. Faux (1863), 4 B. & S. 409 ; 32 L. J. Q. B. 386. (r) Dean v. Peel (1804), 5 East, 45 ; Grinnell v. Wells (1844), 7 M. & G. 1033 ; 14 L. J. C. P. 19. (,y) (1859), 7 C. B. N. S. 96 ; 29 L. J. 0. P. 79. {() (1872), L. R. 7 Ex. 283; 41 L. J. Ex. 169. SEDUCTION. 427 not sue, because there was no illness and loss of service while she was with him ; and the second could not, because the woman was not seduced while in his service (it). An action for seduction cannot be successfully brought against a Seducer, man who, though the seducer, was not the father of the child whose £ -Iv, * birth occasioned the loss of service (a;). the child. A married woman, separated from her husband and living with Married her father, may be the hitter's servant, so that he can maintain an womau - action for seduction (y). Although a master may, as a rule, seduce his servant with impu- Pretended nity, it is a question for the jury whether the hiring was bond fide, im-m S- or for the express purpose of seduction, as in Speight v. Oliviera (z), where the wealthy defendant kept an empty house for the express purpose of engaging a pretty girl to look after it. Although the action for seduction purports to be only an action The for loss of services, that is not the scale on which the damages are clama » es - calculated. " In point of form," said Lord Eldon, in a seduction case, "the action only purports to give a recompense for loss of service ; but we cannot shut our eyes to the fact that this is an action brought by a parent for an injury to her child ; in such case I am of opinion that the jury may take into their consideration all that she can feel from the nature of the loss. They may look upon her as a parent losing the comfort as well as the service of her daughter, in whose virtue she can feel no consolation, and as the parent of other children whose morals may be corrupted by her example "(o). The plaintiff may show that the defendant was addressing his daughter as an honourable suitor (i), and may show his situation in life (c), but not his pecuniary position (d). He is not allowed to give evidence of his daughter's good character till the other side try to shake it (e). In mitigation of damages, evidence of the girl's immodest character Girl's or conduct may be given (/). The defendant may also show that character, by encouraging profligate acquaintanceships, the plaintiff is really the author of her own wrong (/) Harper v. Luffkin (1827), 7 Camp. 460. B. & C. 387 ; 1 M. & It. 166. (/) Verryp. Watkins (1836), 70. (z) (1819), 2 Sfcarkie, 19 I. k P. 308. (a) Bedford v. McKowl (1800), 3 (y) Keddie v. Scoolt (1795), 1 Esp. 119. Peake, 316. 428 ACTION FOR DECEIT. When death is caused by seduction probably no action can be maintained (/(). Particu- It was decided recently in an action for seduction, that the lars- plaintiff will not be ordered to give particulars of the times and places when the seduction took place, until the defendant has made an affidavit denying the seduction (/). Action for Deceit. — ♦ — [129.] PASLEY v. FREEMAN. (1789) [3 T. R. 51.] This case illustrates the law with reference to represen- tations as to the character, ability, and credit of third parties, and also comprehends all instances where a person has been deceived by the wilful or thoughtless statements of another by trusting to the accuracy of which he has been damnified. The facts were as follows. Pasley, the plaintiff, was a person who dealt in cochineal, and at the time when the cause of action arose had a large stock on hand of which he was anxious to dispose. Freeman, the defendant, hearing of this told Pasley that he knew a Mr. Falch who would purchase the cochineal. Pasley said, " Is lie a respectable and substantial person ? " " Certainly he is," answered Freeman, well knowing he was nothing of the sort. On the faith of this representation Pasley let Falch have sixteen bags of cochineal, of the value of nearly 3,000/. on credit. Upon the bill becoming due it turned out that Falch was insolvent, and being unable to recover his money from Falch, Pasley sued Freeman for making to him a false representation whereby he was (h) Osbornt>.Gillett(1873),L.R. (i) Thompson v. Birkley (1883), 8 Ex. 88 ; 24 L. J. Ex. 53. 47 L. T. 700 ; 31 W. R. 230. ACTION FOR DECEIT. 429 damnified, and it was held that Freeman was liable to Pasley to the extent that he had suffered in consequence of Freeman's false statement as to the credit and character of Falch. By the 4th section of the Statute of Frauds, ' ' no action shall be Statute of brought upon any promise to answer for the debt, default, or mis- J ra "^ s > » ni ■, ... . . fourth carriage of another, unless such promise is in writing and signed section. by the party chargeable." Freeman's representation was not in writing, why therefore was he held liable ? The reason is this, that section refers only to contracts, and Pasley sued Freeman in tort, and it is a well-known principle of law, " that wherever deceit or falsehood is practised to the detriment of another, there the laiu will give redress." Pasley v. Freeman was however a substantial viola- tion of the Statute of Frauds, and it gave birth to a progeny of similar cases ; till at length Lord Tenterden passed an Act in the Lord Ten- ninth year of George the Fourth, which provided that no one who terden's had made any representation as to the " conduct, character, credit, 9 Geo. IV. ability," &c, of another in order to induce people to trust him, should c - 14 - be liable to an action for false representation unless his statement were in writing and signed by him. The point cannot be said to be quite settled, but it is probable that to represent a particular pro- perty, on the security of which a person was thinking of lending money, to be sound and safe (e.g., to say that a person's life interest in certain trust funds was charged only with three annuities) would be held to be precisely the same thing as representing the man him- self to be solvent, for a man's " ability " consists in the things that he has (k). It was held in Pasley v. Freeman that it is no defence to an Person re- action of the kind that the defendant had no interest in and was to presenting, gain nothing from telling his untruth. in ° Thus in the case of Leddell v. McDougal (I), where the defen- dant in answer to the plaintiff's letter asking him if he could recommend a man named Thornton as a safe and responsible tenant, had had " much pleasure in replying affirmatively " though he knew Thornton to be a man of no resources, and that he had more than once failed in business similar to the one he now wished to enter into, it was held that it was of no consequence that what the defen- dant had said he had said out of mere kindness and had no idea of (k) Lyde v. Barnard (183G), 1 M. 255 ; 52 L. J. Q. B. 609. & W. 101; 1 Gale, 388; and see (/) (1881), 29 W. R. 403; and Swann v. Phillips (1838), 8 Ad. & see Eaycraft v. Creasy (1801) 2 E. 457 ; 3 N. Ac P. 447 ; and also East, 92. Joliffe v. Baker (1883), 1 1 Q. B. D. 430 ACTION FOR DECEIT. Represen- tation need not be direct. What plaintiff must show. Interest of third parties. Simplex commen- datio. making a halfpenny out of it, or even of deliberately deceiving the plaintiff. In Pearson v. Selignian (m), it was held that it was no defence to prove that the false representation was made for the benefit of the person making it and not for the benefit of the person praised. To ground an action for deceit it is not necessary that the false representation should be made directly to the plaintiff. It is enough that the defendant intended that the plaintiff should act upon it. If bank directors, for instance, circulate a false report formally addressed to their shareholders, but really intended to catch widows and clergymen with money to invest, a widow or clergyman who has thereby been inveigled into buying shares may sue for the loss she or he has sustained (■«). But if the plaintiff did not rely on the false statement complained of, he cannot maintain an action for deceit (o). In an action for deceit the plaintiff must show first, that the false statements made to him were fraudulent : secondly, that they were a cause inducing him to act to his prejudice (p). In another case a man for the purpose of enabling a company to have a fictitious credit in case of inquiries at their bankers, placed money to their credit which they were told to hold in trust for him. Some of the money having been drawn out with his consent, and the company having been ordered to be wound up while a balance remained : it was held that he could not claim to have the balance paid to him (q). In the case of Smith v. Land and House Property Corporation (r), the plaintiffs advertised for sale by auction an hotel stated in the particulars to be held by a "most desirable tenant." The defendants sent their secretary down to inspect the property and report thereon. The secretary reported very unfavourably, stating that the tenant (m) (1883), 31 W. R. 730; 48 L. T. 842. («) Scott v. Dixon (1860), 29 L. J. Ex. 62, n. ; and see Peek v. Gur- ney (1873), L. R. 6 H. L. 377 ; 43 L. J. Ch. 19 ; Barry v. Crosskey (1861), 2 J. & H. 1 ; Gerhard v. Bates (1853), 2 E. & B. 476; 22 L. J. Q. B. 364 ; Richardson v. Silvester (1873), L. R. 9 Q. B. 34 ; 43 L. J. Q. B. 1 ; Carlill v. Carbolic Smoke Ball Co., [1893] 1 Q.B. 256 ; 62 L. J. Q. B. 257. (o) Smith v. Chadwick, post. \p) Taylor v. Ashton (1843), 11 M. & W. 401 ; 12 L. J. Ex. 363 ; Smith v. Chadwick (1884), 9 App. Ca. 187 ; 53 L. J. Ch. 873 ; Edg- ington v. Fitzmauriee (1885), 29 Ch. D. 459; 55 L. J. Ch. 650; Derry v. Peek (1889), 14 App. Ca. 337 ; 58 L. J. Ch. 864. (q) In re Great Berlin Steamboat Co. (1884), 26 Ch.D. 616; 54 L. J. Ch. 68; Hart v. Swain (1877), 7 Ch. D. 42 ; 47 L. J. Ch. 5 ; Evans v. Edmonds (1853), 13 C. B. 777 ; 22 L. J. C. P. 211 ; Arkwright v. Newbold (1881), 17 Ch. D. 301 ; 44 L. T. 393. [r) (1884), 28 Ch. D. 7; 51L.T. 718. ACT R>X FOB DECEIT. 431 could scarcely pay the rent (400?.), rates, and taxes. The defendants, relying on the statements in the particulars, authorized the secretary to attend the sale and to bid up to 5,000?. The property was bought in at the sale and the secretary purchased it by private contract for 4,700?. It appeared subsequently that the quarter's rent previous to the sale had not been paid ; the previous quarter had been paid by instalments, and six weeks after the sale the tenant filed his petition. It appeared, however, that the hotel business was as good during the last year as previously, and that the month of the tenant's failure was the best he had had. The plaintiffs brought an action for specific performance, relying in answer to the defence and counterclaim for rescission (on the ground of misrepresentation) on the fact that the defendants had made their own inquiries. It was held that the statement that the property was held by a " most desirable tenant" could not be treated as ''simplex commendatio," and that the defendants, having relied thereon, were entitled to rescission of the contract on the authority of Redgrave v. Hurd (1881), 20 Ch. D. 1; 51 L. J. Ch. 113. The directors of a company issued a prospectus inviting subscrip- Omission tions for debentures stating that the property of the company was j^^us subject to a mortgage of 21,500/., but omitting to state a second mortgage of 5,000/. The prospectus further stated that the objects of the issue of debentures were ( 1 ) to purchase horses and vans ; (2) to complete alterations and additions; (3) to supply cheap fish. The true object was to get rid of pressing liabilities. The plaintiff advanced 1,500/. upon debentures under the erroneous belief that the prospectus offered him a charge and would not have advanced his money but for such belief, but he also relied upon the false statements contained in the prospectus as to the financial condition of the company. The Court held that the mis-statement of the obj ects for which the debentures were issued was a material mis- statement of fact, influencing the conduct of the plaintiff and rendered the directors liable to an action for deceit, although the plaintiff was also influenced by his own mistake (s). It is not enough to show that the statement in a prospectus is Fraud untrue, it may have been merely expressive of sanguine confidence ; ^owi/ fraudulent misrepresentation must be shown (/). It has recently Deny v. been decided in the House of Lords in Derry v. Peek (u) that a false Peek. (*) Edgingion v. Fitzmaurice L. J. Ch. 864. A criticism of this (1S85), 29 Ch. D. 459; 53 L. T. decision by Sir F. Pollock appeared in the Law Quarterly Review (t) Bellairs v. Tucker (1884), 13 (1889), p. 410; the case is, on the Q. B. D. 562; see also Roots v. other hand, supported by Sir W. Snelling (1883), 48 L. T. 216. Anson in the same Review 1890), («) (1889), 14 App. Ca. 337; 58 p. 72. See also Glasier p. Rolls 432 A CTION FOR DECEIT. statement, made through carelessness and without reasonahlo ground for believing it to be true, may be evidence of fraud, but does not necessarily amount to fraud. Such a statemont, if made in the honest belief that it is true, is not fraudulent and does not render the person making it liable to an action of deceit. The facts in this case were very simple. A special Act incorporating a tramway company provided that the carriages might be moved by animal power, and, with the consent of the Board of Trade, by steam power. The directors issued a prospectus containing a statement that by their special Act the company had the right to use steam power instead of horses. The Board of Trade afterwards refused their consent to the \ise of steam power and the company was wound up. The plaintiff having taken shares on the faith of this statement, brought an action of deceit against the directors, but failed on the ground that the statement as to steam power was made in the honest belief of its truth. In the learned and exhaustive judgment delivered by Lord Herschell will be found a full discussion of the authorities in actions of deceit, and it will well repay a careful perusal. Fraud sufficient to support an action of deceit is proved if it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false. Le Lievre Beference should be made to the recent case of Le Lievre v. v. Gould. G- ou ld (a:). Mortgagees advanced money to a builder upon the faith of certain certificates given by a surveyor. The certificates contained untrue statements, the result of the negligence of the surveyor, but there was no fraud on his part, and no contractual relation between him and the mortgagees. It was held, that the surveyor owed no duty to the mortgagees to exercise care in giving the certificates, and that consequently he was under no liability to them. "No doubt," said Lord Esher, M. B., " the defendant did give untrue certificates ; it was negligent on his part to do so, and it may even be called gross negligence. But can the plaintiffs rely upon negligence in the absence of fraud ? The question of liability for negligence cannot arise at all until it is estabbshed that the man who has been negligent owed some duty to the person who seeks to make him liable for his negligence. "What duty is there when there is no relation between the parties by contract ? A man is entitled to he as negligent as he pleases towards the ivhole world if he owes no duty to them. The case of Heaven v. Pender (y) has no (1889), 42 Ch. D. 436 ; 58 L. J. 60 L. J. Ch. 594. Ch. 820 ; Knox v. Hayman (1892), (x) [1893] 1 Q. B. 491 ; 62 L. J. 67 L. T. 137; Angus v. Clifford, Q. B. 353. [1891] 2 Ch. 449; 60 L. J. Ch.443; {>/) (1883), 11 Q. B. D. 503 ; 52 Low v. Bouverie, [1891] 3 Ch. 82 ; L. J. Q. B. 702. ACTION FOR DECEIT. 433 bearing upon the present question. No doubt, if Cann v. Will- son (2) stood as good law, it would cover the present case. But I do not hesitate to say that Cann v. Willson is not now laiu. A man must be said to have a fraudulent mind if he recklessly makes a statement intending it to be acted upon, and not caring whether it be true or false. ... A man who thus acts must hare a wicked mind. But negligence, however great, does not of itself con- stitute f 'raw /." Of course, a misrepresentation, though not sufficient to support an action of deceit, may be enough to create the right to rescind a contract based upon it (a). In Maddison v. Alderson (b) the plaintiff was induced to serve a Maddison man as his housekeeper for many years and to give up other .„ r ; prospects of advancement in life, by a verbal promise made by him to leave her a farm for her life. He signed a will leaving the farm in accordance with his promise ; but the will was not duly witnessed. The Lord Chancellor Selborne held that assiuning a contract in fact between A. and the appellant, there was no part performance unequivocally referable to a contract so as to exclude the operation of the Statute of Frauds ; and that the appellant could not recover the farm from the man's heir. The fraudulent purpose must be proved by the plaintiff. The Conceal- active concealment of a material fact, e. g., where the vendor of a material house plasters over a defect in the wall, may operate as a misrepre- fact, sentation (c), but no mere non-disclosure where there is no duty to disclose, as in the diseased pigs case, where the seller declined to give any kind of warranty or representation as to them, but left the purchaser to go entirely by their appearance (d). As to the re- scinding of contracts on grounds of fraud, the equity leading cases of Shirley v. Stratton(e), Attwood v. Small (/), and Eedgrave v. Hurd (g) should be referred to. In Abouloff v. Oppenheimer and Co., it was decided that a foreign Fraud a judgment obtained by the fraud of a party to the suit in the foreign a e fo^tn° Court cannot be afterwards enforced by him in an action brought judgment, in an English Court, even although the question whether the fraud (z) (1888), 39 Ch. D. 39 ; 57 L. {(I) Ward v. Hobbs (1878), 4 J. Ch. 1034. App. Ca. 13 ; 48 L. J. Q. B. 281 ; (a) See Adam r. Xewbigging 1 and see Fletcher v. Krell (1872), 42 (1888), 13 App. Ca. 308 ; 57 L. J. L. J. Q. B. 55 ; 28 L. T. 105. Ch. 1066. (e) 1 B. R. C. C. 440. (b) (1883), 8 App. Ca. 467 ; 52 (/) (1838), 6 C. & F. 232. L. J. Q. B. 737. iff) (1881), 20 Ch. D. 1 ; 51 L. J. (c) Schneider v. Heath (1813), 3 Ch. 113. Camp. 506. S. — C. F F 434 ACTION FOR DECEIT. had been perpetrated was investigated in the foreign Court, and it was there decided that the fraud had not been committed (Ji). Omission A dwelling-house and offices were put up for sale by public larFof sale auc tion, under a printed condition in a common form, that the lot at auction, was sold subject to any existing rights and easements of whatever nature — and the printed particulars made no mention of any ease- ment, or of any claim to an easement. As the result of evidence it appeared that the house was subject to an easement belonging to the owner of a neighbouring tenement to use the kitchen for par- ticular purposes, and that the vendor's solicitor knew of the rumoured existence of some such easement, but forbore to make inquiries. No grant of an easement appeared from the abstract, and its existence was, in fact, disputed on the pleadings. In the auction room the plaintiff's solicitor said ho had heard of some such claim, but had no definite information about it, and the auctioneer, in hearing of the plaintiff's solicitor, on being questioned, told the audience that they might dismiss the subject of the rumoured claims from their minds, as nobody would probably ever hear of them again. Held, that the conditions were misleading and the statements in the auction room insufficient, and specific performance of the contract refused (/). Marriage In an action to set aside a marriage settlement, the plaintiff settlement. a ii e g e( i as the ground of his action that, previous to the execution of the settlement made upon the marriage between himself and J. S., the latter stated to him that her first husband had been divorced from her at her suit, by reason of his cruelty and adultery, and that she had not herself been guilty of adidtery ; that such statements were made to induce him to execute the settlement and contract the marriage ; that in reliance on the representations he executed the settlement and married J. S. ; that he subsequently discovered that the representations were false to the knowledge of J. S., that she herself had been divorced from her husband at his suit and by reason of her adultery. Held, on motion by the defen- dant, that the plaintiff's statement of claim must be struck out under Ord. XXV. r. 4, as disclosing no reasonable ground of action (A;). Conceal- In an action to recover by way of damages money lost by the ment of fraudulent representations of the defendant, a reply to a defence of Statutes ^ ne Statute of Limitations that the plaintiff did not discover and of Limita- had not reasonable means of discovering the fraud within six years , . o ■J before action, and that the existence of such fraud was fraudulently (h) (1882), 10 Q. B. D. 295; 52 25 Ch. D. 357 ; 53 L. J. Ch. 492. L. J. Q. B. 1. (k) Johnston v. Johnston (1884), (i) Heywood v. Mallalieu (1883), 53 L. J. Ch. 1014 ; 51 L. T. 537. ACTION FOR DECEIT. 435 Concealed by the defendant until within such six years was held good by the Court of Appeal (/). The plaintiff may recover damages for any injury which is the Damages, direct and natural consequence of his acting on the faith of the defendant's fraudulent representations (m). In Twycross v. Grant (n), where the plaintiff had been induced by the fraud of the defendant to take up shares which were really worthless, he was held entitled to recover the full amount he had paid for them, although they had a market value at the time he took them. In the recent case of Clarke v. Yorke (o) the question arose whether a plaintiff who had already obtained damages in the county court for false and fraudulent representations could bring an action in the High Court for further damages accrued since judgment in the county court. It was held, by Pearson, J., that he could not do this, as the cause of action was not continuing and his right of action was exhausted. The common law action to recover damages for the infringement Trade of a trade mark was based upon the ground of fraud (p). copyright. But it is not now necessary — nor was it ever in equity — to prove ;p raU( j no t fraud against a defendant in such a case (q). essential. At common law there was no copyright in literary productions At com- after publication, but there was before (r). For the present law upon the subject of copyright, see for copy- By statute, right in books 5 & 6 Vict. c. 45. Copyright in designs 46 & 47 Vict. c. 57, s. 113. Copyright in dramatic productions 3 & 4 Will. IV. (0 Gibbs v. Guild (1882), 9 Q. Ormrod v. Huth (1845), 14 M. & B. D. 59 ; 51 L. J. Q. B. 313 ; see "W. 651 ; 14 L. J. Ex. 366 ; Sulli- also Ecclesiastical Commissioners van v. Mitcalfe (1880), 5 C. P. D. for England v. North Eastern 455 ; 49 L. J. C. P. 815 ; Eagle- Railway Co. (1877), 4 Ch. D. 845 ; field v. Londonderry (1876), 4 Ch. 47 L. J. Ch. 20 ; observed upon, D. 693 ; and on appeal, 38 L. T. Barber v. Houston (1884), 14 L. R. 303 ; Gover's case (1875), 1 Ch. D. Ir. 273; and see Betjemann v. Betje- 182; 45 L. J. Ch. 83 ; Cornell v. mann, [1895] 2 Ch. 474 ; 64 L. J. Hay (1873), L. R. 8 C. P. 328 ; 42 Ch. 641. L. J. C. P. 136 ; Brett v. Clowser (m) Mullett v. Mason (1866), L. (1880), 5 C. P. D. 376; Jury v. R. 1 C. P. 559; 35 L. J. C. P. Stoker (1882), L. R. Ir. 9 Ch. D. 299. 385. («) (1877), 2 C. P. D. 469; 46 (p) Rogers v. Nowill (1847), 5 L. J. C. P. 636. C. B. 109 ; 17 L. J. C. P. 52; (o) (1882), 47 L. T. 381 ; 31 W. Singer Co. v. Wilson (1876), 2 Ch. R. 62 ; see also Evans v. Collins D. 434 ; 45 L. J. Ch. 490. (1844), 5 Q. B. 820 ; 12 L. J. (?) 38 & 39 Vict. c. 91 ; 39 & 40 Q. B. 339; Pontifex v. Bignold Vict. c. 33; 40 & 41 Vict. c. 37 (Tho (1841), 3 M. & G. 63 ; 3 Scott, N. Trade Marks Acts, 1875—1877). R. 390 ; Cornfootv. Eowke( 1840), (r) Albert, Prince v. Strange 6 M. & W. 358 ; 4 Jar. 919; Lang- (1849), 1 Mac. & G. 25 ; 18 L. J. ridge v. Levy (1837), 2 M. & W. Ch. 120; Reade v. Conquest (1 80 1), 519 ; Behn v. Buraess (1803), 3 B. 9 C. B. N. S. 755 ; 30 L. J. C. P. & S. 751 ; 32 L. J. Q. B. 204 ; 269. F F2 436 ACTION FOR DECEIT. Books. What is a book ? First publisher. Copyright in title of book. c. 15, s. 1 ; 5 & 6 Vict. c. 45, ss. 2, 20, 22. Copyright in musical compositions 45 & 46 Vict. c. 40. Copyright in newspapers 44 & 45 Vict. c. 60. Copyright in pictures 25 & 26 Vict. c. 68. See also the International Copyright Act, 1886 (49 & 50 Vict. c. 33); and the Merchandise Marks Act, 1887 (50 & 51 Vict. c. 28). The Court will not define in general terms what amounts to a literary composition which can be protected under the Copyright Acts (s). The plaintiffs, who were upholsterers, published an illustrated catalogue of articles of furniture, which was duly registered under the Copyright Act as a book. The illustrations were engraved from original drawings made by artists employed by the plaintiffs, but the book contained no letterpress of such a description as to be the subject of copyright, and it was not published for sale, but was used by the plaintiffs as an advertisement. The defendants pub- lished an illustrated catalogue, many of the illustrations in which were copied from those in the plaintiffs' book. It was held that the plaintiffs were entitled to an injunction restraining the defen- dants from publishing any catalogue containing illustrations copied from the plaintiffs' book. A collection of prints published together in a volume is a book within the meaning of the Copyright Acts and the proper subject of copyright, though it contains no such letterpress as could be the subject of copyright, and it makes no difference that the book is not published for sale, but only used as an advertisement [Cobbett v. Woodward (L. E. 14 Eq. 407) overruled] (t). In the case of Coote v. Judd (m) it was decided that registration of copyright is bad if the name entered as that of " the publisher " is not that of the first publisher. In an action for infringement of copyright, where objections to the registration are not delivered within the prescribed time, the action may nevertheless be dismissed if a defect in the registration is brought out from the plaintiff's evidence. As to the law relating to copyright in the title of a book the case of Dicks v. Yates (.r) should be referred to. (s) Chilton v. Progress Printing Co., [1895] 2 Ch. 29 ; 64 L. J. Ch. 510. (t) Maple & Co. v. Junior Army and Navy Stores (1882), 21 Ch. D. 369 ; 52 L. J. Ch. 67. See also Lamb v. Evans, [1893] 1 Ch. 218 ; 62 L. J. Ch. 404, where it was held that the headings of a trade direc- tory under which trade advertise- ments are classified are the subject of copyright ; and that the colloca- tion and arrangement of the adver- tisements generally was, though each single advertisement was not, the subject of copyright. As to railway guides, see Leslie v. Young, [1894] A. C. 335; 6 R. 211. (w) (1883), 23 Ch. D. 727; 53 L. J. Ch. 36. {x) (1881), 18Ch.D. 76; 50 L. J. Ch. 809. ACTION FOR DECEIT. 437 The plaintiff, in Ager v. Peninsular and Oriental Steam Navigation Copyright Co. (y), published " The Standard Telegram Code," a book of words to " code -" selected from eight languages, for use in telegraphic transmissions of messages, and it was accompanied by figure cyphers for refer- ence or private interpretation. The book was registered under the Copyright Act, 5 & 6 Vict. c. 45. The defendants bought a copy of the book, and compiled for their own use with its aid a new and independent work, as alleged, which was their own private telegraph code, and they distributed copies of their book amongst their agents at home and abroad, but they had not printed their book for sale or exportation. It was decided that the defendants had infringed the copyright of the plaintiff, and that a perpetual injunction must be granted. An author and a lecturer upon various scientific subjects, delivered Public from memory, though it was in manuscript, a lecture at the Work- 1 ? c *" r J e ) no richt to ing Men's College, upon " The Dog as the Friend of Man." The verbatim audience were admitted to the room by tickets issued gratuitously P ubuca - by the committee of the college. P., the author of a system of shorthand writing, and the publisher of works intended for instruction in the art of shorthand writing, attended the lecture and took notes, nearly verbatim, in shorthand, of it, and after- wards published the lecture in his monthly periodical ' ' The Phonographic Lecturer." The Court, on motion for an injunction to restrain the publication, decided that where a lecture of this kind is delivered to an audience limited and admitted by tickets, the understanding between the lecturer and the audience is that, whether the lecture has been committed to writing beforehand or not, the audience are quite at liberty to take the fullest notes for their own personal purposes, but they are not at liberty to use them afterwards for the purpose of publishing the lecture for profit ; and the publication of the lecture in shorthand characters is not regarded as being different in any material sense from any other ; and an injunction was accordingly granted (z). Where a person shall deem himself aggrieved by any entry in Person the register of copyright, the Court will make an order varying: aggrieved , , , , J & by entry, such entry (a). In Davis v. Comitti(^), it was held that the face of a barometer Face of (y) (1884), 26 Ch. D. 637 ; 53 L. 12 App. Ca. 326 ; 57 L. J. P. C. J. Ch. 589 ; and see Cable v. Marks 2 ; Merryweather v. Moore, [1892] (1882), 52 L. J. Ch. 107 ; 47 L. T. 2 Ch. 518 ; 61 L. J. Ch. 505. 432. («) Ex parte Poulton (1884), 53 (z) Nicols v. Pitman (1884), 26 L. J. Q. B. 320 ; and seo In re Ch. D. 374; 53 L. J. Ch. 552; Riviere & Co.'s Trade Mark (1884), and see Abcrnethy v. Hutchinson 53 L. J. Ch. 578 ; 49 L. T. 504. (1825), 3 L. J. Ch. (0. S.) 209 ; 1 (b) (1885), 54 L. J. Ch. 419. H. & T. 28 ; Caird v. Sime (1887), 438 ACTION FOR DECEIT. barometer not a book. Designs. Sculpture. Dramatic produc- tions aud musical compo- sitions. displaying special letterpress was not capablo of registration under the Copyright Act, 1842, as not being, within sect. 2, "« book sepa- ratilji "published." The law upon copyright in designs, as has been pointed out, is governed entirely by the Patents, Designs, and Trade Marks Act, 1883 (c), and the reader is referred to this extensive statute for information upon this important branch of the law of copyright. In Fielding v. Hawley (d) a butter dish, consisting of a dish and cover, is one "article of manufacture'''' within the Copyright (De- signs) Act, 1842, and it is a sufficient compliance with the Act to stamp the registration mark upon the dish alone, though the cover was separate from and not in any way attached to the dish, and though the entire design was upon the cover, and protection is not denied even though in the process of manufacture the mark becomes illegible. It is provided by 54 Geo. III. c. 56, s. 1, that every person who makes or causes to be made any new and original sculpture, model, copy, or cast of the human figure, or of any animal, or of any animal combined with the human figure, or of any subject being matter of invention in sculpture, is to have the sole right and pro- perty in such sculpture, model, copy, or cast for a term of fourteen years. It has been held (e), that new and original casts of fruit and leaves are within this section. The publication in this country of a dramatic piece as a book before it has been publicly represented or performed does not de- prive the author of such dramatic piece or musical composition, or his assignee, of the exclusive right of representing or performing it ( f). In another dramatic case the Court of Appeal decided that the person whose right under sect. 20 of 5 & 6 Vict. c. 45, to such solo liberty of representing a musical composition has been infringed is entitled to recover the penalty of 40s. given by sect. 2 of 3 & 4 Will. IV. c. 15, although such musical composition has not been represented at a place of dramatic entertainment (•. .Ma it land (1881), (1885), 54 L. J. Q. B. 331 ; 52 L. 17 Oh. D. 174 ; 50 L. J. Ch. 401. T. 516. 444 ACTIONS AGAINST SHERIFFS. Actions against Sheriffs, &c. [131.] SEMAYNE v. GRESHAM. (1605) {Sometimes called Semayne's Case.) [5 Coke, 91.] Berisford and Grresham. 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 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 Mr. Semayne, to whom he " acknowledged a recognizance in the nature of a statute staple." 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 Grresham. 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, Grresham 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, he did not succeed, for the judges said Grresham had done nothing wrong in locking the front door, and that, even when the king is a party, the ACTIONS AGAINST SHERIFFS. 445 householder must be requested to open the door before the sheriff can break his way in. Semayne's case is the chief authority for the popular legal maxim Houses as which says that every Englishman's house is his castle— dvmus sua castles. est cuique tutissimum refugium — a maxim which, in the lawless times from which our common law comes, was of the utmost im- portance, for what the law cannot do in that it is weak, a man must do for himself. This maxim, however, in common with almost every legal maxim, Process in must be received with very considerable qualifications. Thus, a c * v ^ su *** sheriff or other officer of the law empowered to execute process in a civil suit may, in pursuance of his duty, enter a man's private dwelling-house, although he would not be justified in breaking any outer door or window in order to effect an entrance into the house ; and " when the king is a party," as, e.g., in the case of the appre- Capturing hension of a felon, the officer may enter the house as best he may f e l° ns - by breaking the door or otherwise. It must, however, be carefully noted that no such breaking becomes justifiable untd the officer, having given due notice of his business, and having demanded admission, has been refused to bo allowed to enter the house. Again, a landlord may enter upon the premises of a tenant who Distress has not paid his rent, for the purpose of distraining the tenant's * or rent * goods. This is, however, subject to certain restrictions, as, for instance, that the distress must take place after sunrise and before sunset. And so, too, although a barn, or outhouse, not connected with the dwelling-house, may be broken open in order to levy an execution, yet it cannot be so broken in order to make a distress for rent(^). The distinction 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 and for his own purposes." And, as will perhaps be readily supposed, when a house has been Eecovery recovered by an action of ejectment, the sheriff may break the houso °^ ^ an(1 - and deliver possession to the plaintiff. For, after judgment, the defendant has no longer any right to retain possession of the house. Moreover, the rule that " every man's house is his castle" does Sheltering not apply to protect it from invasion in case his friend, ujion a frien ds- pursuit, takes refuge there or removes his goods thither in order to avoid an execution. After demand of admission and refusal, the Sheriff sheriff may break open the doors of the house for the purpose of *"' eakl,1 S executing the process of the law, but ho does so at his peril, and, if {p) Brown v. Glenn (18. r )l), 1G Q. B. 254 ; 20 L. J. Q. B. 205. 446 ACTIONS AGAINST SHERIFFS. What is a breaking. Execution good, though sheriff trespasser. it should turn out that his suspicions were not "well founded, the act of breaking amounts to a trespass on his part (7). Indeed, it has been said that if the sheriff enters the house of a stranger, even through an open door, he does so at his peril, and, if the goods of which he is in search are not found there, he is a trespasser (r). It appears, then, that, although the sheriff cannot break the doors of one's house in the execution of a civil process against one's own goods, he may yet justify a breach for the purpose of seizing the goods of a stranger whose ordinary residence is elsewhere. A house, however, in which a man habitually resides would seem, on principle and on authority, to be on the same footing as his own house so far as executions are concerned, for it is there that one would naturally expect to find him and his goods. The sheriff, therefore, could not break the outer door of such a house to execute any process against the man's goods. As to what is to be considered a breaking of the house, as distin- guished from a mere entry, the cases are not altogether reconcilable. There are dicta and decisions which would lead to the conclusion that the opening of a door which is simply latched constitutes a breaking on the part of the sheriff ; and so, too, if a window be shut, but not fastened, it may not be opened for the purpose of distraining (s). "Where a pane in a window of the house happened to be broken, it was held that the officer might lawfully put his hand through the aperture in order to make the arrest (t). If the sheriff in executing a writ break the house, without ' authority of law for so doing, and thereby becomes a trespasser, it seems that the execution, nevertheless, is good, and that the injured party has no remedy save an action for trespass against the sheriff. This, at any rate, appears true in respect of an execution against goods. The execution creditor has done no wrong, and, therefore, so much of the sheriff's proceedings as was for his benefit should be considered valid, the rest illegal. An arrest of the person by means of an unlawful breaking has, however, been deemed to be altogether void (u), and there is authority for stating that, even in the case of an execution against goods, the Court may, in the exercise of its summary jurisdiction, and in order to prevent an abuse of its process, undo the whole of the proceedings (») and set the execution aside. (q) Cooke v. Birt (1814), 5 Taunt. 765 ; 1 Marsh. 333. (r) Per Dallas, J., in Cooke v. Birt, supra. (s) Nash v. Lucas (1867), L. R. 2 Q. B. 590; 8 B. & S. 531. See Long v. Clarke, [1894] 1 Q. B. 119 ; 63 L. J. Q. B. 108. (t) Sandon v. Jervis (1858), E. B. & E. 935, 942 ; 28 L. J. Q. B. 156. {u) Kerbey v. Denbey (1836), 1 M. & W. 336 ; 2 Gale, 31. (x) See Smith's L. C, vol. i., p. 119. ACTIONS AGAINST SHERIFFS. 447 Tlie reader is referred to the following cases having reference to sheriffs, they are too numerous to be dealt with at large in a book so limited as the present volume :— Smiths. Keal (1882), 9 Q. B. D. 340; 47 L. T. 142. Liability of execution creditor for wrongful seizure under ft. fa. — Implied authority of solicitor — Direction to levy upon particular goods. Eoyle v. Busby (18S0), 6 Q. B. D. 171; 50 L. J. Q. B. 19G. Sheriff's officer — Abortive execution — Possession money — "Who liable to pay. Hilliard v. Hanson (1882), 21 Ch. D. 69 ; 47 L. T. 342. Wrong- ful seizure — Ft. fa. — Injunction — Costs. Ex parte Webster, In re Morris (1882), 22 Ch. D. 136 ; 52 L. J. Ch. 375. Costs on appeal from an interpleader order. Aylwin v. Evans (1882), 52 L. J. Ch. 105; 47 L. T. 56S. Ee- straining sale undei\/?. fa. Smith v. Darlow (1884), 26 Ch. D. 605 ; 53 L. J. Ch. 696. Inter- pleader — Possession money — Eight of appeal. In re Ludmore (1884), 13 Q. B. D. 415; 53 L. J. Q. B. 418. Poundage — Costs of execution. Scarlett v. Hanson (1883), 12 Q. B. D. 213; 53 L. J. Q. B. 62. Seizure in execution — Equity of redemption — Duty of sheriff — Common Law Procedure Act, 1860, s. 13. Harvey v. Harvey (1884), 26 Ch. D. 644 ; 51 L. T. 508. Duty in executing writ of attachment. Crabtree v. Eobinson (1885), 15 Q. B. D. 312 ; 33 W. E. 936. Entry by window. Ex parte Crosthwaite, In re Pearce (1885), 14 Q. B. D. 966 ; 54 L. J. Q. B. 316. Duties of sheriffs as to goods taken in execution. Willis v. Combe (1884), 1 C. & E. 353. A sheriff is not liable for damage to goods, which he has seized under a ft. fa. , caused by a mob breaking in and injuring the goods, if he has used reasonable care and diligence respecting them. In re Purcell (1884), 13 L. E. Ir. 489. Sheriff only entitled to retain fees on amount actually levied. Hunt v. Fenshawe (1883), 12 Q. B. D. 162; 32 W. E. 316. Court may order private sale of goods instead of public auction. Kelly v. Browne (1883), 12 L. E. Ir. 348. False return— Levy — Cheques from debtor — Performance of condition. Martin v. Tritton (1884), 1 C. & E. 226. Liability for seizure- Interpleader order rescinded. Morris v. Salberg (1889), 22 Q. B. D. 614; 58 L. J. Q. B. 275. ] mection to sheriff to levy on particular goods — Liability of execu- tion creditor for wrongful seizure by sheriff. Mitchell v. Simpson (1889), 23 Q. B. D. 373 ; 58 L. J. Q. B. 425, Sheriffs Act, 1887 — Duty on commitment of debtor. 448 TROVER. In re Priestley (1889), 23 L. E. Ir. 53G. Notice of act of bank- ruptcy — Sale — Deduction of fees and expenses. Ex parte Essex, In re Levy (1890), 63 L. T. 291 ; 38 W. E. 784. Eight to possession money — Eeceiving order made before sale — Delay of sale. Hogarth v. Jennings, [1892] 1 Q. B. 907; 61 L. J. Q. B. 001. Secretary of company not entitled to act as bailiff for the company. Bagge v. Whitehead, [1892J 2 Q. B. 355 ; 61 L. J. Q. B. 778. Liability of sheriff for wrongful act of bailiff. American Concentrated Must Co. v. Hendrey (1893), 62 L. J. Q. B. 388 ; 68 L. T. 742. Illegal distress— Breaking of outer door — What is peaceable entry. Hodder v. WiUiams, [1895] 2 Q. B. 663. Sheriff executing writ of fieri facias — Breaking outer door of building not a dwelling-house. Trover, &c. — ♦ — [132.] ARMORY v. DELAMIRIE. (1722) [1 Stk. 504.] A youthful chimney sweeper was fortunate enough to find a very valuable jewel, 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 worthless, and offered him three halfpence for it, which the lad declined, and demanded his prize back. The jeweller refusing to return it, the boy went to law with him, and elicited from the judges a favourable decision. " You have fairly found this jewel," they said, " and nobody 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." Finding There is very little truth in the time-honoured tradition that not keep- finding is keeping. The duty of the finder of a jewel, or other article, is to discover, if he can, the person who has lost it ; and if he keeps it, knowing perfectly well who that person is, he commits a criminal offence. TROVER. 449 This note, however, is concerned with the case where the real Who may owner of the thing found is not ascertainable, and the chief point ^f^tion on which Armory v. Delamirie is an authority is as to what is for trover, sufficient to enable a person to maintain an action for trover. On this point the recent case of Barker v. Furlong (y) should be con- sidered. It was there held that trustees having a title to chattels with an immediate right of possession can sue in trover for the chattels, although they may never have taken actual possession, but have allowed the goods to remain iu the possession of their cestui que trust; and although the title maybe liable to be defeated by the claim of some third party, yet the wrongdoer cannot set up the title of that third party as a defence to an action against himself for the recovery of the goods. 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 continued in the person who had lost the jewel. All Armory had was the right of possession ;, but it I was considered that that was quite a sufficient foundation for an action of trover as against a mere wrongdoer. And it may be stated generally that persons entitled to only a special property in goods, or to only a right of possession of the goods, may maintain an action of trover ; such as a carrier, or a workman to whom goods have been sent to be repaired or worked upon, or a warehouse- keeper, who has them for safe custody, or an auctioneer or shop- keeper, to whom they have been sent to sell, and many others, to whom goods have been deHvered for a special purpose (2). Byway of illustration, the recent case of Nyberg v. Handelaar (a) may be mentioned. There, the plaintiff was owner of a gold enamel box, and agreed with one Frankenheim that the latter should become owner of one-half of the box, but that the plaintiff should retain possession and have the selling of it. The box having remained some time in the hands of the plaintiff, he determined to sell it at Christie's Auction Booms, and for that purpose handed it to Franken- heim, who, in turn, handed it to the defendant as security for money owing. The question was whether, under these circumstances, the plaintiff could maintain an action of detinue for the box. In giving judgment for the plaintiff, Fry, L.J., said : "I adhere to the state- ment made in the old books of practice that detinue can be main- tained by any person who has the immediate right to possession of (tj) [1891] 2 Ch. 172; 60 L. J. subject is fully dealt with in Addi- Ch. 368. son's Law of Torts, 7th ed., pp. 498 (z) Williams v. Millington f 1788), et seq. 1 H. Bl. 81; Colwell v. Reeves (a) [1892] 2 Q. B. 202 ; 61 L. J. (1810), 2 Camp. 570 ; Martini v. Q. B. 709. Coles (1813), 1 M. & 8. 140. Thia S. — C. G G 450 TROVER. Possession nine- teriths of the law. Command can be denied. Jus tertii. Spoilers. Respondeat superior. personal chattels -which are wrongfully detained from him, -whether that right arises out of an ahsolute or a special property." On the same principle (viz., that mere possession is sufficient as against a -wrongdoer) rests a well-known rule in actions of ejectment, namely, that the plaintiff must recover hy the strength of his own title, and not hy the weakness of his opponent's. Possession, as the popular adage has it, is nine-tenths of the law. It is on the same principle that the rule in pleading that a command can be denied rests. The position the person so pleading takes up 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" (6). So a defendant in possession may set up a, jus tertii — that is, the right of a third person — to the lands, to disprove the claimant's alleged right. Armory v. Delamirie also illustrates an important maxim of the law, — omnia prcesumuntur contra spoliatorem; that is to say, every presumption shall be made to the disadvantage of a wrongdoer (c). Delamirie refused to produce the stone when he gave back the 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 agree- ment under which he is chargeable, it is presumed as against him to have been properly stamped (d). A person once claimed a debt from another, the proof of which was to be foimd in certain docu- ments which were sealed up and in his keeping. Without having any business to do 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, 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 could give no satisfactory account of how it came into his possession, it was held that the whole necklace might be presumed to have come into his hands so that he must pay the full value (e). A third point was decided in the leading case, viz., that " a master is answerable for the loss of a customer's property entrusted to his servant in the course of his business as a tradesman." The respon- sibility of a master for the torts of his servant will be found (b) Chambers v. Donaldson (1S09), 11 East, 65 ; Dcbree v. Napier (1836), 2 Bing. N. C. 781 ; 3 Scott, 201. (r) Carter v. Bernard (1849), 13 Q. B. 945. (d) Crisp v. Anderson (1815), 1 Stark. 35. (e) Mortimer v. Cradock (1843), 12 L.J. C. P. 166; 7 Jur. 45. TROVER. 451 treated of under the leading case, Limpus v. General Omnibus Co., ante, p. 404. The case of a sale in market overt may be dealt with here. It Sale in forms an exception to the rule that no one can acquire a title to a ^^. t e chattel personal from a person who has himself no title to it. A purchaser of chattels (not being a horse) in market overt acquires an indefeasible title to the chattels so purchased, provided he buys in good faith and without knowledge of any defect in the vendor's title (/); he may, accordingly, keep stolen goods so purchased. If, however, the thief is prosecuted to conviction, the tables are turned, an Act of Parliament (g) expressly providing that in that case the owner shall have his goods restored to him, notwithstand- ing any intermediate dealing with them ; and, indeed, he may then maintain trover for them without waiting for any writ of restitu- tion (h). But where goods have been obtained by fraud or other wrongful means not amounting to larceny, the property in such goods does not revest in the person who was the owner of the goods by reason only of the conviction of the offender (/). No action lies against an innocent purchaser of stolen goods in market overt who disposes of the goods before conviction of the thief (k). The innocent j>urchaser, it has been held, cannot, in answer to a claim for the goods by the owner after the thief has been duly convicted, counterclaim for the cost of their keep while in his possession (/). But by 30 & 31 Vict. c. 35, s. 9, the Court which tries the thief may, on his conviction, direct that money found on him shall be paid to the innocent buyer in compensation for his having to give uj> the property. In the country the privilege of market overt applies only to those particular clays and places which may happen to be specified by charter or prescription. But in London [i.e., the city) it applies to every week day (between sunrise and sunset), and every shop, but (/) Sale of Goods Act, 1893 Larceny and Summary Jurisdiction (56 & 57 Vict. c. 71), sect. 22. Acts, so far as they are inconsistent. (c/) 24 & 25 Vict. c. 96, s. 100; See also Lindsay v. Cundy (1878), and 56 & 57 Vict. c. 71, s. 24 (1). 3 App. Cas. 459 ; 47 L. J. Q. B. (h) Scattergood v. Sylvester 481 ; Babcock v. Lawson (1880), 5 (1850), 15 Q. B. 506 ; 19 L. J. Q. Q. B. D. 284 ; 49 L. J. Q. B. 408 ; B. 447 ; and R. v. London (1869), Beg. v. JJ. of Central Criminal L. R. 4 Q. B. 371 ; 10 B. &S.341. Court (1886), 18 Q. B. D. 314 ; 16 See also Delaney v. Wallis (18S4), Cox, C. C. 196; and Chichester v. 15 Cox, 525 ; 14 L. R. Ir. 31. Hill (1882), 48 L. T. 364 ; 15 Cox, (i) 56 & 57 Vict. c. 71, 8. 24 (2) ; C. C. 258. overruling Bentley v. Vilmont (k) Horwood v. Smith (1788), 2 (1887), 12 App. Cas. 171 ; 57 L. J. T. R. 750 ; 2 Leach, C. C. 586. Q. B. 18; and semble restoring the (I) Walker v. Matthews (1881), law of Moyce v. Newington (1878), 8 Q. B. D. 109; 51 L. J. Q. B. 4 Q. B.D. 32; 18 L.J. Q. B. 125; 243. mi 1 in con egui ace n p laling tho c; c; 2 452 TROVER. not to a wharf (m), nor a showroom over the shop to which customers are only admitted on special invitation («). The sale, however, must be of such articles as are usually dealt in at the shop. Everything, too, must be open and above board ; any attempt at concealment {e.g., by the shutters being up, or by the sale taking place at the back of the shop) vitiating the privilege. Nor is the purchaser protected if it is Crown property that ho buys, or if he is aware of the defect of title, or, in short, if he is guilty of any fraud in the transaction. The privilege of market overt covers only the sale from shopkeeper to stranger, and does not apply to a sale by a stranger to the shopkeeper (o). Horses. The property in a horse, even though sold in market overt, does not pass to the buyer unless certain formalities prescribed by some ancient statutes (p) have been complied with. To entitle the buyer to anything approaching security, the horse must have been exposed in the open market for a whole hour between 10 a.m. and sunset. Then buyer, seller, and horse must all go together before the book-keeper of the market, who will enter in his note- book every kind of particular about all three. But even when the buyer has undergone this ordeal and paid the money, he can hardly call himself the owner of the horse ; because any time within six months of its being stolen, the owner of a horse may put in his claim before a magistrate in the district where it is found, and if he can within forty days get two witnesses to come and swear it is his, may have it back again on tendering to the person in j)ossession of it the sum he paid in market overt. It is to be observed that goods stolen and sold out of market overt may be retaken wherever found, though no step has been taken, or is intended to be taken, to prosecute the thief (q). So also if goods stolen are pawned, the owner may maintain trover against the pawnbroker (?-). Eecent cases on the subject of trover are: — ■ Johnson v. Hook (1883), 31 W. E. 812 ; 1 0. & E. 89. Measure of damages. Delaney v. Wallis (1884), 14 L. E. Ir. 31, C. A. ; 15 Cox, C. C. 525. Sale of stolen goods in market overt. (m) Wilkinson v. King (1806), 2 supra. Camp. 335. ( p) 2 & 3 P. & M. c. 7, and 31 («) Hargreave v. Spink, [1892] Eliz. c. 12. 1 Q. B. 25 ; 61 L. J. Q. B. 318. (?) Peer v. Humphrey (1835), 2 (o) See Taylor v. Chambers (1605), A. & E. 495 ; 4 N. & M. 430. Cro. Jac. 68; Lyons v. De Pass (;■) Packer v. Gillies (1806), 2 (1840), 11 A. & E. 326; 9 C. & P. Camp. 336, n. ; and see 35 & 36 68 ; Crane v. London Dock Co. Vict. c. 93 (Pawnbrokers Act, (1864), 5 B. &S. 313; lOJur. N. S. 1872), sect. 36. 984 ; and Hargreave v. Spink, CONVERSION. 453 Tyler v. L. & S. W. Ey. Co. (1884), 1 0. & E. 285. Goods in custody of police. Comite des Assureurs Maritimes v. Standard Bank of South Africa (1883), 1 C. & E. 87. Eight of owner to follow proceeds of sale. Glyn, Mills, Currie & Co. v. East & West India Dock Co. (1882), 7 App. Cas. 591 ; 52 L. J. Q. B. 146. Liability of warehouseman to holders of bills of lading. London and County Bank v. London & Eiver Plate Bank (1888), 21 Q. B. D. 535 ; 57 L. J. Q. B. 601. Negotiable securities— holder for value. Kleinwort v. Comptoir National D'Escompte de Paris, [1894] 2 Q. B. 157 ; 63 L. J. Q. B. 674. Dealing with crossed cheque wrongfully converted. Henderson v. Williams, [1895] 1 Q. B. 521 ; 64 L. J. Q. B. 308. Liability of Warehousemen. Estoppel of bailor. Conversion. HILBERY v. HATTON. (1864) [133 j [2 H. & C. 822 ; 33 L. J. Ex. 190.] Mr. Hilbeiy, 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 stranded there. The consignee of the cargo took possession 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 princi- pals, without knowing that the consignee had no business to sell her. The defendants, on being apprised by Thomp- son of what he had done, wrote back to him — " You do not say j'rom whom you bought Iter, nor whether you have the register with her. You had better for the present make a 401 CONVERSION. What constitutes conversion. Examples. hulk of her." In an action by Hilber}-, it was held that there was evidence of a conversion by the defendants, in spite of their circumspection. This case is selected as illustrating the severity with which the Jaw views the intermeddling with another man's property. The case of Kirk v. Gregory (s), where the defendant had removed some jewellery from the room of a dying man under the reasonable fear of its being stolen, may also be referred to. Hiort v. Eott (t) is also a good illustrative case. An ingenious scoundrel, named Grimmett, persuaded the defendant to indorse to him a delivery order for some barley, which he said had been sent to the defen- dant by mistake. In spite of his good intentions, which were simply to correct what he believed to be an error, the defendant was held liable. Since the Judicature Acts abolished the old forms of action, the distinction between "conversion" and " trespass " has become of little or no practical importance. Formerly there must have existed a right to immediate possession in order to found an action for trover ; and an owner not entitled to immediate possession had to make use of a special action on the case for any injury to his interest in a chattel, and this means of redress was available, although the act complained of might also be a trespass, conver- sion, or breach of contract as against the person entitled to the immediate possession. " Conversion " has been defined (») as " an unauthorised act which deprives another of his property permanently or for an indefinite time." The grievance is the un- authorised assumption of the powers and dominion of the true owner. Thus, if a man, who has no right to meddle with goods at all, removes them from one place to another, an action may be maintained against him for a trespass ; but he is not guilty of a conversion of them, unless he removed the goods for the purpose of taking them away from the person entitled to them, or of exercising some control over them for the benefit of himself or of some other person {x). The following are instances of conversion : If a man has pos- session of my chattel and refuses to deliver it up, knowing or having the means of knowing that I am the owner of it (y) ; if a (s) (1876), 1 Ex. D. 55 ; 45 L. J. Ex. 186. (t) (1874), L. E. 9 Ex. 86; 43 L. J. Ex. 81. (u) Per Bramwell, B., in Hiort v. Bott, supra. (.r) See Falke v. Fletcher (1865), 18 C. B. N. S. 403 ; 34 L. J. C. P. 116. (//) Baldwin v. Cole (1705), 6 Mod. 212 ; Burroughes v. Bayne (1860), 5 H. & N. 296; 29 L. J. Ex. 185. CONVERSION. 455 man, who is entrusted with the goods of another, puts them into the hands of a third person contrary to orders ; if the pawnee of goods, with a power of sale, sells them before the day stipulated for the exercise of the power of sale has arrived (z) ; if a person, with- out my permission, takes my horse to ride, and leaves it at an inn (a) ; if a vendor who has sold goods on credit re-sells the goods before the day of payment has arrived (b) ; if a man takes the pro- perty of another without his consent, by abuse of the process of the law (c) ; or if a sheriff sells more goods than are sufficient to satisfy an execution, he is liable for a conversion in respect of the ex- cess ((/). So, too, the wilful and wrongful destruction of a chattel, or Wrongful wilful and wrongful damage to it, whereby the owner is deprived ". estruc " of the use of it in its original state, is a conversion of it, if done by the wrongdoer with the intention of taking to himself the pro- perty in the chattel, or deriving some benefit from it, or with the intention of depriving the owner of the possession or use of it (e). Every one who takes part in the wrongful conversion of another Servant man's property is responsible, even though he is only a servant keying obeying his master's orders (/). " The only question is," said Lord Ellenborough in the case last referred to, "whether this is a con- version in the clerk which undoubtedly was so in the master. The clerk acted under an unavoidable ignorance and for his master's benefit when he sent the goods to his master ; but, nevertheless, his acts may 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." The liability of auctioneers and of agents gene- rally in respect of the wrongful conversion of goods depends upon whether they deal with the goods with the view of passing the property in them, or whether they merely settle the price or other- wise act as mere intermediaries between the supposed owner and the purchaser ; in the former case they are liable, in the latter case (z) Johnson v. Stear (1864), 15 (c) Grainger v. Hill (1838), 4 C. B. N. S. 330 ; 33 L. J. 0. P. 130 ; Bing. N. C. 212 ; 5 Scott, 561. Pigot v. Cubley (1861), 15 C. B. (d) Aldred v. Constable (1814), 6 N. S. 701 ; 33 L. J. C. P. 134. Q. B. 370 ; 8 Jur. 956. («) Syeds v. Hay (1791), 4 T. R. {e) See Richardson v. Atkinson 264; 3 Burr. 1264. (1724), 1 Str. 574; Simmons v. (b) Chinery v. Viall (1860), 5 H. Lillystone (1853), 8 Exch. 431 ; 22 & N. 203; 29 L. J. Ex. 180; L. J. Ex. 217. Martindale v. Smith (1841), 1 Q. B. (/) Stephens v. Elwall (1815), 4 389; lti.&D. 1. M. &S. 259. 456 CONVERSION. Responsi- bility of auctioneer. Conversion proved by demand and refusal. Who may sue. What may be sued for. The damages. Other cases. they are not liable (g). Thus, in Cochrane v. Eymill [h), the owner of some cabs let them to a Mr. Peggs, cab-master, under a certain agreement. Mr. Peggs fraudulently got the defendant, an auc- tioneer, to sell them by auction. Though 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 liablo in conversion to the true owner. " The defendant," said the Court, ' ' had possession of these goods ; he advertised them for sale ; he sold them, and transferred the property in them, and, therefore, from beginning to end he had control over the property ; and unless we are prepared to hold contrary to all the definitions of conversion which have been laid down, we must hold that such acts amount to conversion. But the auctioneer will not be held guilty of conver- sion if he has not claimed to transfer the title nor purported to sell, but has simply re-delivered the chattels to the person to whom the man from whom he received them told him to deliver them." Where the conversion cannot be proved by any positive act, it may be inferred from proof of a demand of the goods by the plaintiff, and a refusal to deliver them by the defendant, he having the control over them at the time (i). The owner of goods let to another for a term still continuing cannot maintain an action for conversion (k) ; but any special or temporary oiunership with immediate jwssessi on is sufficient (/). The action lies only in respect of specific personal property ; there- fore not for money unless identified in specie (in). The measure of damages is, in general, the value of the goods. But this is not necessarily so, the damages being compensation for the loss actually sustained by the wrongful act (»). The following cases on this subject may be consulted : — Spack- (ff) Hollins v. Fowler (1875), L. R. 7 H. L. 757 ; 44 L. J. Q. B. 169; Barker v. Furlong, [1891] 2 Ch. 172; 60 L. J. Ch. 368; Con- solidated Co. v. Curtis, [1892] 1 Q. B. 495 ; 61 L. J. Q. B. 325, in which Turner v. Hockey (1887), 56 L. J. Q. B. 301, was commented on. (/i) (1879), 27 W. R. 777; S. C. 40 IJ. T. 744. Compare with this case, National Mercantile Bank v. Bymill (1881), 44 L. T. 767. (i) France v. Gaudet (1871), L. R. 6 Q. B. 199; 40 L. J. Q. B. 121 ; Philpott v. Kelley (1835), 3 A. &E. 106; 4N.&M. 611. (/v) Gordon v. Harper (1796), 7 T. R. 9 ; 2 Esp. 465 ; and see Milgate v. Kebble (1841), 3 M. & G. 100 ; 3 Scott, N. R. 358. {1) Legg v. Evans (1S40), 6 M. & W. 36 ; 8 D. C. P. 177 ; Brierly v. Kendall (1852), 17 Q. B. 937; 21 L. J. Q. B. 161. (m) Orton v. Butler (1822), 5 B. & Aid. 652 ; and see Foster v. Green (1862), 31 L. J. Ex. 158. («) Hiort v. L. & N. W. Ry. Co. (1879), 4 Ex. D. 188 ; 48 L. J. Ex. 545 ; Chinery v. Viall (1860), 5 H. & N. 288 ; 29 L. J. Ex. 180 ; Livingstone v. Rawyards Coal Co. (1880), 5 App. Cas. 25; 42 L. T. 334 ; and see Spackman v. Foster (1883), 11 Q. B. D. 99; 52 L. J. Q. B. 418. DEFAMATION. 457 man v. Foster, where title deeds of the plaintiffs were fraudulently taken from them and deposited by a third person, without their knowledge, with the defendant in 1859, who held them, without knowledge of the fraud, to secure the repayment of a loan. The plaintiffs on discovering the loss of the deeds in 1882, demanded them of the defendant, and upon his refusal to give them up brought an action to recover them, to which the defendant pleaded the Statute of Limitations. The Court held that, until demand and refusal to give up the deeds to the real owners, they had no right of action against which the statute would run (o). And see Hard- man v. Booth (1863), 1 H. & C. 803; 32 L. J. Ex. 105; Cooper v. Chitty (1756), 1 Burr. 20; 1 Wm. Bl. 65; Mulliner v. Florence (1878), 3 Q. B. D. -±84; 47 L. J. Q. B. 700; Jones v. Hough (1880), 5 Ex. D. 115; 49 L. J. Ex. 211 ; Fouldes v. Willoughby (1841), 8 M. & W. 540; 1 D. N. S. 86; Glyn v. E. & W. India Dock Co. (1882), 7 App. Cas. 591 ; 52 L. J. Q. B. 146; Lord v. Price (1874), L. R. 9 Ex. 54 ; 43 L. J. Ex. 49 ; Mathiessen v. London and County Bank (1879), 5 C. P. D. 7 ; 48 L. J. C. P. 529. Defamation. CAPITAL AND COUNTIES BANK v. HENTY. [134.] (1882) [7 App. Cas. 741 ; 52 L. J. Q. B. 232.] " Messrs. Henty and Sons hereby give notice that they will not receive in payment cheques drawn on any of the tranches of the Capital and Counties Bank." The pub- lication of a circular to this effect by some Chichester brewers caused a run on the bank, and an action for libel. But it was held that the circular was not libellous. " It seems to me unreasonable," said Brett, L.J., " that where there are a number of good interpretations, the only bad (o) See last note. 458 DEFAMATION. Definition. Libel. Slander. Special damage. Slander on holders of public offices. one should be seized upon to give a defamatory sense to the document." A libel may be defined as the malicious publication of untrue defamatory matter by writing, printing, or the like signs, without just cause or excuse. Slander consists of defamatory matter merely spoken. An action for libel may always be brought when the words pub- lished expose the plaintiff to hatred, ridicule, or contempt, or are calculated to injivxe him in his business. But, except in four cases, the plaintiff in an action for slander must prove special damage. The four exceptional cases are : — (1.) Where the words charge the plaintiff with having committed some criminal offence. (2.) Where they impute to him a contagious or infectious disease. (3.) Where they are spoken of him as a professional or business man. (4.) Where they impute unchastity or adultery to a woman or girl (o). In Riding v. Smith (p), it was held that a grocer and draper, whose wife helped him in the shop, could recover damages for .slander charging her with having committed adultery on the pre- mises, there being evidence of loss of custom not accounted for except by the slander. In Webb v. Beavan (q), it was held that words imputing that a person has been guilty of a criminal offence will support an action for slander, without special damage, even though the criminal offence imputed is not indictable. Words imputing want of integrity, dishonesty, or malversation to anyone holding a public office of confidence or trust", whether an office of profit or not, are actionable per se (r). On the other hand, when the words merely impute unsuitableness for the office, in- competency for want of ability, without ascribing any misconduct touching the office, then no action lies, when the office is honorary, without proof of special damage (s). (o) See the Slander of Women Act, 1891 (54 & 55 Vict. c. 51), which also provides that ' ' in any action for words spoken and made actionable by this Act, a plaintilf shall not recover more costs than damages, unless the judge shall certify that there was reasonable ground for bringing the action." {p) (1876), 1 Ex. D. 91 ; 45 L. J. Ex. 281. («/) (1883), 11 Q. B. D. 609; 52 L. J. Q. B. 544 ; and see Societe Erancaise des Asphaltes v. Earrell (18S5), 1 C. & E. 563 ; Simmons v. Mitchell (1880), 6 App. Cas. 156; 50 L. J. P. C. 11 ; Weldon v. De Bathe (1S84), 14 Q. B. D. 339 ; 54 L. J. Q. B. 113. (>•) Booth v. Arnold, [1895] 1 Q. B. 571; 64 L. J. Q. B. 443. (*) Alexander v. Jenkins, [1892] 1 Q. B. 797 ; 61 L. J. Oh. 634. DEFAMATION. 459 Malice is not really necessary to the plaintiff's case (t). Malice. To repeat a slander is as actionable as to start it («). Repetition When the words used are not actionable in themselves, but by slander, reason of their intended meaning (e.g., if used ironically), an limuen °- innuendo must be laid, the questions whether the words are capable of the meaning alleged, and whether such meaning is actionable, being for the Court, and the question whether the words were used with the alleged meaning for the jury (r). Publication to a third party must be proved. The mere sending Publica- a man an abusive letter contained in a fastened-up envelope is not lon ' actionable (.»:). It is the duty, however, of a person sending a letter which may be libellous to write it hhnself and mark it private, and if a copy be necessaiy to copy it himself, otherwise there is publi- cation both to the clerks of the sender and the receiver (?/). Depreciatory criticisms, not being false and malicious, by one Criticisms. tradesman on the goods of another are not actionable (z). Truth is a complete answer to a claim for damages for slander or Truth. libel. A corporation may sue for a Hbel or slander affecting their pro- Corpora- perty, but not for one merely affecting their personal reputation (a), but they may (probably) be sued in the same way as an individual. As to restraining libels by injunction, see Hill v. Hart-Davis (b), Injunc- and Quartz, &c. Co. v. Beall (c). (() Bromage v. Prosser (182.5), 4 discharge of his duty to his client. B. & C. 247 ; 1 C. & P. 475. And see Baker v. Carrick. [1894] 1 (m) Watkin v. Hall (1868), L. R. Q. B. 838 ; 63 L. J. Q. B. 399 ; and 3 Q. B. 396 ; 37 L. J. Q. B. 12.5. Pedley v. Morris (1891), 61 L. J. (*•) Ruel v. Tatnell (1880), 43 Q. B. 21 ; 65 L. T. 526, where it L. T. 507 ; 29 W. R. 172 ; Sim- was held that no action will lie mons v. Mitchell, ubi supra ; Wil- against a solicitor for defamatory liams v. Smith (18S8), 22 Q. B. D. words contained in written objec- 134 ; 58 L. J. Q. B. 21 ; discussed tions lodged by him upon taxation in Searles v. Scarlett, [1892] 2 Q. of another solicitor's bill of costs. B. 56 ; 61 L. .T. Q. B. 573 ; and (z) Young v. Macrae (1862 , 3 B. see Nevill v. Fine Arts Insurance & S. 264; 32 L. J. Q. B.6; II Co., [1895] 2 Q. B. 156; 72 L. T. v. Delaney(1718), 2 Str. 893; Evans 525 ; and the leading case. v. Harlow (1844), 5 Q. B. 624 ; 13 (./) Phillips v. Jansen, 2 Esp. L. J. Q. B. 130; W. Counties 624; Peacock v. Reynal (1612), 2 Manure Co. r. Lanes, &c. Co. (1874), Brown & Gould, 151 ; 16 M. kW. L. R. 9 Ex. 218 ; 43 L. J. Ex. 171 ; 825, n.; Wenhakr. Morgan (1S88), and "White v. Mellin, [1895] A. C. 20 Q. B. D. 635; 57 L. J. Q. B. 154 ; 64 L. J. Ch. 308. 241 ; but see Delacroix v. Therenot («) Mayor, &c. of Manche-ter v. (1817), 2 Stark. 63. Williams, [1891] 1 Q. B. 94 ; 60 (y) Pullman v. Hill, [1891] 1 Q. L. J. Q. B. 23 ; South Hetton Coal B. 524 ; 60 L. J. Q. B. 299. This Co. v. North Eastern News Associa- case was distinguished in Boxsius tion, [1894] 1 Q. B. 133 ; 63 L. J. v. Goblet, [1894] 1 Q. B. 842 ; 63 Q. B. 293. Special damage need L. J. Q. B. 101, where the occa- not be proved. si'. ii wa-. held to be privileged as (/>) (1882), 21 Ch. D. 798; 51 being a communication made by L. J. Ch. 845. a solicitor to a third party in the [c) (1882), 20 Ch. D. 501 ; 51 tions. tion. 400 DEFAMATION. Evidence. Slander of title. News- papers. In an action for libel, evidence of the existence of rumours to the same effect as allegations in the libel is not admissible; nor is evidence of particular acts of misconduct on the part of the plain- tiff ; but general evidence of his reputation may probably bo given in mitigation of damages (<1). The action for slander of title, it may be mentioned here, is not strictly an action for defamation, but an action for special damage to the plaintiff by a false and malicious statement affecting his title to property, and it does not matter whether the words are written or spoken (e). In this connection the important judgment of the Court of Appeal, delivered by Bowen, L. J., in the recent case of Ratclifi'e v. Evans (/), should be considered. " That an action will lie," said that learned judge, "for written or oral falsehoods, not actionable fer se nor even defamatory when they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage, is estab- lished law. Such an action is not one of libel or of slander, but an action on the case for damage wilfully and intentionally done with- out just occasion or excuse, analogous to an action for slander of title. To support it, actual damage must be shown, for it is an action which only lies in respect of such damage as has actually occurred. . . . The character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and par- ticularity with which the damage done ought to be stated and proved." For the law of libel relative to newspapers, see the Newspaper Libel and Registration Act, 1881, and the Law of Libel Amendment Act, 1888 ((/). In Chamberlain v. Boyd (A), the plaintiff was a candidate for membership of the Reform Club, but upon a ballot of the members was not elected. A meeting of the members was called to consider an alteration of the rules regulating the election of members. The L. J. Ch. 874 ; and see Liverpool Household Stores Association v. Smith (1887), 37 Ch. P. 170; 57 L. J. Ch. 85 ; Bonnard v. Perry- man, [1891] 2 Ch. 269; 60 L. J. Ch. 617 ; Salomons v. Knight, [1891] 2 Ch. 294; 60 L. J. Ch. 743; Collard v. Marshall, [1892] 1 Ch. 571 ; 61 L. J. Ch. 268 : and Mon- son v. Tussaud, [1894] 1 Q. B. 671 ; 63 L. J. Q. B. 454. (d) Scott v. Sampson (1882), 8 Q. B. D. 491 ; 51 L. J. Q. B. 380; and see Wood v. Durham (1888), 21 Q. B. D. 501 ; 57 L. J. Q. B. 547. {e) Malachy v. Soper (1836), 3 Bing. N. C. 371 ; 3 Scott, 723 ; Brook v. Rawl (1849), 4 Ex. 521 ; 19 L. J. Ex. 114 ; Wren v. Weild (1869), L. R. 4 Q. B. 730; 20 L. T. 277. ( /') [1892] 2 Q. B. 524 ; 61 L. J. Q. B. 535. (g) 44 & 45 Vict. c. 60; 51 & 52 Vict. c. 64. (A) (1883), 11 Q. B. D. 407; 52 L. J. Q. B. 277 ; and see Jacobs v. Schmaltz (1890), 62 L. T. 121. DEFAMATION. 461 defendant falsely and maliciously spoke and published of the plain - tiff as follows : — " The conduct of the " plaintiff " was so bad at a club in Melbourne, that a round robin was signed, urging the com- mittee to expel" him; " as, however," he was " there only for a sbort time the committee did not proceed further; " whereby the defendant induced a majority of the members of the club to retain the regulations under which the plaintiff had been rejected, and thereby prevented the plaintiff from again seeking to be elected to the club. It was decided upon demurrer that the claim disclosed no cause of action, for the words complained of, not being actionable in themselves, must be supported by special damage in order to enable the plaintiff to sue ; and the damage alleged was not pecuniary or capable of being estimated in money, and was not the natural and probable consequence of the defendant's words. In assessing damages the jury are entitled to take into considera- Damages, tion the whole conduct of the defendant in the matter from the time the libel was published down to the time their verdict is given (/). The Court has power to restrain a person from making slanderous statements, whether oral or written, calculated to injure the busi- ness of another (A - ). The vendor of a newspaper in the ordinary course of his business, Xews- though he is prima facie liable for a libel contained in it, is not ven( ^ ors * liable if he can prove that he did not know that it contained a libel ; that his ignorance was not due to any negligence on his own part ; and that he did not know, and had no ground for supposing that the newspaper was likely to contain libellous matter. If he can prove these facts he is not a publisher of the libel (I). As to the question of admitting as evidence other parts of a newspaper to show in what sense the words constituting the alleged libel were used, see Bolton v. O'Brien (m). For the law upon criminal in for- Criminal mations for libel, see Reg. v. Yates («). As to particulars, see informa- Bradbury v. Cooper (o). tion. (i) Praed v. Graham (1889), 24 15 Cox, C. C. 231 ; 48 L. T. 733; Q. B. D. 53 ; 59 L. J. Q. B. 230. Reg. v. Labouchere (1884), 12 Q.' (k) Hermann Loog v. Bean B. D. 320 ; 53 L. J. Q. B. 362 ; (1884), 26 Ch. D. 306 ; 53 L. J. Reg. V.London (1886), 16 Q. B L>' Ch. 1128. 772 ; 16 Cox, C. C. 81 ; Boaler v. {/,) Emmens v. Pottle (1885), 16 Reg. (1888), 21 Q. B. D. 284- 16 Q. B. D. 354; 55 L. J. Q. B. 51. Cox, C. C. 488; Reg. v. Adams {m) (1885), 16 L. R. Ir. 97. (1888), 22 Q. B. D. 66; 16 Cox, (n) (1885), 14 Q. B. D. 648 ; 54 C. C. 5 11. L. J. Q. B. 258. The following (o) (1883), 12 Q. B. D. 94 ; 53 recent casts may also be referred L. J. Q. B. 558. to, namely : Reg. v. Ramsey (1883), 462 PRIVILEGED COMMUNICATIONS. Privileged Communications. [135.] Absolute or condi- tional. HARRISON v. BUSH. (1855) [5 E. & B. 314 ; 25 L. J. Q. B. 25.] At Frome, in Somersetshire, there was a contested elec- tion, with the usual amount of excitement and party feeling. After it was over, Mr. Bush, an elector of Frome, wrote a letter to Lord Palmerston, who was then Home Secretary, 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, tlie best intentions and in the discharge of what he considered to be a public duty, he was not successful. A man must always discharge his duty to society and himself, notwithstanding that it may involve the employment of harsh speech or writing concerning his neighbours ; and therefore such speech or writing, even though it happens not to be true, is privi- leged. The privilege may be absolute or conditional. Speeches in Parliament (p), or in a law Court (q), communica- tions relating to state matters made by one officer of state to another in the course of his official duty (r), are absolutely privileged. So, too, are the statements of witnesses, however irrelevant (s). {p) R. v. Abingdon (1794), 1 Esp. 227 ; Davison v. Duncan (1857), 7 E. & B. 229; 26 L. J. Q. B. 104; Goffin v. Donnelly (1891), G Q. B. D. 307; 50 L. J. Q. B. 303 ; Davis v. Shepstone (1886), 11 App. Cas. 187; 55 L. J. P. C. 51. (q) Scott v. Stansfield (1868), L. P. 3 Ex. 220; 37 L. J. Ex. 155; Mackay v. Ford (I860), 5 H. & N. 792; 29 L. J. Ex. 404; Munster r. Lamb (1883), 11 Q. B. J). 5 8 : 52 L. J. Q. B. 726 ; dissenting from Kendillon v. Maltby (1842), C. & M. 402 ; 2 M. & R. 438 ; and Anderson v. Goriie, [1895] 1 Q. B. 668, where it was held that no action lies against a judge of a Court of Record in respect of any act done by him in his judicial capacity, even though he acted oppressively and maliciously, to the prejudice of the plaintiff and to the per- version of justice. (»•) Chatterton v. Secretary of State for India in Council, [1895] 2 Q. B. 189; 11 T. L. R. 462. (s) Seaman v. Netherclift (1876), 2 C. P. D. 53 ; 46 L. J. C. P. 128 ; PRIVILEGED COMMUNICATIONS. 463 Ordinary conmrunications, however, are not privileged absolutely, but only prima facie ; and the rule is that wherever one person having Duty or an interest to protect, or a legal or moral duty to perform, makes a com- mterest - munication to another, such other having a corresponding interest or duty, this communication is prima facie privileged (t). If, for ex- ample, a person of indifferent character were to try to get elected into a respectable club, a member who knew something of his antecedents would be justified in making to the committee, or to another member, such a communication as would insure his being duly pilled. So, too, a master who parts with a servant is justified in telling a person who, with a view to employing the man, inquires about his character, that he is a thief or a drunkard (»). In the recent case of Hunt v. Gr. N. By. Co. (.r), the defendants Hunt v. dismissed a servant for alleged negligence, and published his name, p ' ?' offence, and dismissal in a monthly list of punishments for serious offences, which was exhibited in the rooms occupied by their staff throughout their system. In an action by the dismissed servant against the company to recover damages for libel, it was held that, as the company had an interest in informing their servants, and the servants a corresponding interest in learning, that negligence would be followed by dismissal, the occasion of the publication was privileged. In Waller v. Loch (y), the plaintiff was the daughter of a Waller v. deceased officer in the army, and was in distressed circumstances. ^ ocil - A subscription list was started for her, and she would have made a good hatful out of it, if somebody, a friend of one of the intending subscribers, had not written to the Charity Organisation Society, of which the defendant was the secretary, for information about her. The society's report was unfavourable,- — the lady was an impostor, it said, and a begging-letter writer who lived extravagantly while she was appealing for charity. This report was held to be a privi- leged communication. "A duty of inij)erfect obligation," said Cotton, L. J., " attaches on everyone to do what is for the good of Dawkins v. Rokeby (1875), L. R. fact. 7 H. L. 744 ; 45 L. J. Q. B. 8 ; («) See Davies v. Snead (1870), Goffin v. Donnelly, ubi sup. L. R. 5 Q. B. 608 ; 39 L. J. Q. B. {t) See Hebditeh v. Macllwaine, 202 ; Webb v. East (1880), 5 Ex. [1894] 2 Q. B. 54 ; 63 L. J. Q. B. D. 108 ; 49 L. J. Ex. 250. 587, where it was held that it is (./■) [1891] 2 Q. B. 189; 60 L. J. not sufficient to make the occasion Q. B. 498. privileged for the utterer of the (y) (1881), 7 Q. B. D. 619; 51 defamatory Btatemeni honestly to L. J. Q. B. 274; Stuart v. Bell, believe thai i 1 p. person to whom he | L891] 2 Q. B. 341 ; 60 L.J. Q. B. utters it In- i he ae& ssary in,t< n st 577. or duty if such is not really the 464 PRIVILEGED COMMUNICA TIONS. County councillor. Don't tell everybody. Express malice destroys privilege. society. In that sense it is the duty of those who have knowledge as to persons seeking charitable relief to communicate it when asked by persons who wish to know whether the applicants are deserving objects." A county councillor making a defamatory statement at a meeting of the council held for the purpose of hearing applications for music and dancing licences with regard to a person applying for a licence, is not entitled to absolute immunity from liability, but only to the ordinary privilege which applies to a communication made without express malice on a privileged occasion. And this privilege may be rebutted by showing that, from some indirect motive, such as anger or gross and unreasoning prejudice with regard to a parti- cular subject-matter, the defendant stated what he did not know to be true, reckless whether it was true or false (z). Where an action of libel is brought in respect of a comment on a matter of public interest, the case is not one of privilege, properly so called, and actual malice need not be proved ; the question is whether the comment does or does not go beyond the limits of fair criticism (a). But even in those cases where a man has a right to make a com- munication affecting another's character, he must take care to make it to the proper person. He will not be protected against the un- pleasant consequences of an action for slander if, as a worthy draper in the Harrow Road did, he goes about telling everybody he meets that So-and-so has been robbing him (b). Privilege, moreover, is not more than a presumption. It is open to the plaintiff to give proof of express malice, and show that the defendant's professed zeal for the public, or the urgent necessity of protecting his interests, is all pretence, and that he really has no other object than to injure the plaintiff (c). ci 20 As (z) See Royal Aquarium Parkinson, [1892] 1 Q. B. 431 L. J. Q. B. 409. (a) Merivale v. Carson (1887 Q. B. D. 275; 58 L. T. 331. to what is a " matter of public interest," see South Hetton Coal Co. v. North Eastern News Associa- tion, [1894] 1 Q. B. 133 ; 63 L. J. Q. B. 293. (h) Harrison v. Eraser (1881), 29 'W. R. 652 ; and see Toogood v. Spyring (1834), 1 C. M. & R. 181 ; 4 Tyr. 582 : Tompson v. Dashwood (1883), 11 Q. B. D. 43; 52 L. J. Q. B. 425, where the letter was sent to the wrong per- son, but was held privileged, as it would have been had it been cor- rectly forwarded ; Reg. v. Perry (1883), 15 Cox, C. C. 169 ; Hay- ward v. Hayward (1886), 34 Ch. D. 198; 56 L. J. Ch. 287. (c) Clark v. Molyneux (1877), 3 Q. B. D. 237 ; 47 L. J. Q. B. 230 ; approved in Jenoure v. Delmege, [1891] A. C. 73; 60 L. J. P. C. 11, which also decided that no distinction can be drawn between one class of privileged communica- tions and another ; they all imply that the occasion rebuts the inference that the defendant is actuated by mala fides, and casts the burden of proving malice on the plaintiff. PRIVILEGED COMMUNICATIONS. 465 Privilege or not, is a question for the judge; but express malice Judge and or not, is for the jury (d). J ur y* An interesting case on privilege recently came before tbe Coivrt Searles r. of Appeal in Searles v. Scarlett (e). The defendant published in a Scarlett - trade journal, under the heading " Extracts from the Eegister of County Courts Judgments," a statement that a county court judg- ment had been obtained against the plaintiff for a certain amount on a certain day, but immediately under the heading was appended a note to the effect that judgments contained in the list might have been satisfied. The judgment had. in fact, been obtained against the plaintiff, who had satisfied it by payment a few days subse- quently, but such satisfaction had not been entered ujtoii the register. In an action for libel, the plaintiff was non-suited, the Court holding that the statement was published on a privileged occasion, and that there was an absence of evidence of express malice on the part of the defendant. Another case which may be referred to is that of Botterill v. Church Whytehead (/). It having been determined to restore Skirlough ar c ni t ec - Church, an ancient Gothic edifice near Hull, the committee were thinking of putting the work in the hands of Botterill & Co., some Hull architects, when they received a memorial from the defendant, a clergyman, a resident in the neighbourhood, and a member of the Society for the Protection of Ancient Buildings and Monuments, re- commending 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 j ury had given them. The fair reports of newspapers are privileged. But in Stevens v. News- Sampson (. 1 ; 59 L. J. <>. B. [1892] 1 Q. B. 86 ; 61 L. J. M. C. 517. 91. S. — C. II II 466 PRIVILEGED COMMUNIVA TIONS. ings m Court privileged. Newspaper reports of proceed- ings of public rueetir.gs and of certain bodies and persons privileged. Power to defendant to give certain evidence in mitiga- tion of damages. before any Court exercising judicial authority shall, if published contemporaneously with such proceedings, be privileged : Provided that nothing in this section shall authorize the publication of any blasphemous or indecent matter." (Sect. 3.) (?'). A fair and accurate report published in any newspaper of the proceedings of a public meeting, or (except where neither the public nor any newspaper reporter is admitted) of any meeting of a vestry, town council, school board, board of guardians, board or local authority formed or constituted under the provisions of any Act of Parliament, or of an} 7 committee appointed by any of the above- mentioned bodies, or of any meeting of any commissioners authorized to act by letters patent, Act of Parliament, warrant under the Royal Sign Manual, or other lawful warrant or authority, select committees of either House of Parliament, justices of the peace in quarter sessions assembled for administrative or deliberative purposes, and the pubHcation at the request of any Government office or depart- ment, officer of state, commissioner of police, or chief constable of any notice or report issued by them for the information of the public, shall be privileged, unless it shall be proved that such report or publication was published or made maliciously : Provided that nothing in this section shall authorize the publication of any blasphemous or indecent matter : Provided also, that the protection intended to be afforded by this section shall not be available as a defence in any proceedings if it shall be proved that the defendant has been requested to insert in the newspaper in which the report or other publication complained of appeared a reasonable letter or statement by way of contradiction or explanation of such report or other publication, and has refused or neglected to insert the same : Provided further, that nothing in this section contained shall be deemed or construed to limit or abridge any privilege now by law existing, or to protect the publication of any matter not of public concern and the publication of which is not for the public benefit. For the purposes of this section "public meeting" shall mean any meeting bond fide and lawfully held for a lawful purpose, and for the furtherance or discussion of any matter of public concern, whether the admission thereto be general or restricted. (Sect. 4.) At the trial of an action for a libel contained in any newspaper the defendant shall be at liberty to give in evidence in mitigation of damages that the plaintiff has already recovered (or has brought actions for) damages, or has received or agreed to receive compen- sation in respect of a libel or libels to the same purport or effect as the libel for which such action has been brought. (Sect. 6.) (j) Kimber v. Press Association, [1893] 1 Q. B. G5 ; G2 L. J. Q. B. 152. TORTS AND FELONIES. 467 Every person charged with the offence of libel before any Court Person of criminal jurisdiction, and the husband or wife of the person so P^o^eded charged, shall be competent, but not compellable, witnesses on criminally every hearing at every stage of such charge. (Sect. 9.) a< t° m t It may be remarked that, even when a communication is privileged, witness, it must be made temperately and judiciously. It is one thing, for Privilege instance, to make your communication in a sealed envelope, and c ^ se ^ wTS" another to make it unnecessarily by a telegram, which in the course judgment, of its transmission must of course be read and giggled over by a number of clerks (k). In a case (/) in Ireland it appeared that the defendants, some seed merchants, had applied to a customer for payment with a post-card, on which was written — " Sir, — Your plea of illness for not paying this trifle is mere moon- shine. We will place the matter in our solicitor' 8 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, though the communication might be prima facie privileged, had gone beyond their rights in making it by post-card. "It is difficult,'''' said Palles, C.B., "to conceive any case in which there can he a necessity to substitute a post-card for a closed letter." Where a person courts the alleged slander by a question, the occasion is privileged (Palmer v. Hummerston (1883), 1 C. & E. 36; and see Jones v. Thomas (1885), 34 W. P. 104; 53 L. T. 678; Proctor v. Webster (1885), 16 Q. B. D. 112 ; 55 L. J. Q. B. 150). Torts which arc a/so Crimes. WELLS v. ABRAHAMS. (1872) [136.] [L. P. 7 Q. B. ool ; 41 L. J. Q. B. 306.] Mr. Wells, becoming impecunious, decided to try and borrow some money. He instructed bis wife to take a quantity of jewellery, including a magnificent broocb, to (/,-) Williamson v. Freer (1874), 219. L. R. 'J C. P. 393 ; 43 L. J. C. P. (/) Robinson v. Jones (1879), L. 161 ; and seo Pittard v. Oliver, R. Ir. 4 C. L. 391. [1891] 1 Q. B. 47! ; GO L.J. Q. B. H II 2 468 TOUTS AND FELONIES. The sup- posed rule and its en- forcement. Rapes* and assaults. Wrong to nonsuit. Ball's case. View of Bramwell, L.J. the sliop 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 the packet came to be opened, there was no brooch inside, and Mrs. Wells charged Abrahams with having stolen it. Instead, however, of a prosecution for felony, this action of trover was brought against him, and a verdict was found for the plaintiff for 150/. The question now was whether the judge ought to have non- suited the plaintiff, on the ground that the facts showed a felonious taking of the brooch, and Wellock v. Constan- tine (m) was cited. It was held, however, that the judge was quite right in not having non-suited, for he was bound to try the issues on the record. " It is undoubtedly laid down in the text-books," says Lush, J., in the leading case, ' ' 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 satisfied that requirement ; but by ivhat means that duty is to be enforced we are nowhere informed." Wellock v. Constantino was an action by a young woman against her master for an assault ; but when she came into the witness-box her case turned out to be that she had been raped, and so the judge non-suited, telling her to go and prosecute her master criminally before she asked a civil court to give her damages. Wells v. Abrahams, however, shows that a non-suit under such circumstances is wrong; and what is the proper course, no one knows. . A perusal of the judgments in the recent case of Ex parte Ball(») will show how doubtful and unsatisfactory is the present state of the law. The following remarks of Bramwell, L.J. (in which James, L.J., said that he entirely concurred), though rather long, are quite worth transplanting from the Reports into a text- book : — " In this case the debt which is sought to be proved arose from the felonious act of the bankrupt in embezzling the moneys of his employers. The question is, whether, that being so, and no more having been done than has been done towards prosecuting the bankrupt, the trustee in the liquidation of Messrs. Willis & Co., the {m) (1863), 32 L. J. Ex. 285; 2 H. & C. HO. (») (1870), 10 Ch. Div. GG7 L. J. Bk. 57. 48 TORTS AND FELONIES. 469 employers, can prove the debt in the bankruptcy. The law on this subject is in a remarkable state. For 300 years it has been said in various ways by judges, many of the greatest eminence, without intimating a doubt, except in one instance, that there is some im- pediment to the maintenance of an action for a debt arising in this way. The doubt is that which was not so much expressed by Mi'. Justice Blackburn, in Wells v. Abrahams (o), as to be inferred from what he said. But though such an opinion has been enter- tained and expressed for all this time, there are but two cases in which it has operated to prevent the debt being enforced. These two cases are Wellock v. Constantine (p) and Ex parte Elliott (q). AVel- lock v. Constantine has been said to be no authority. If I may speak of myself, I have no doubt I concurred in the judgment, or the statement tbat I did so would have been set right ; but I am sure I must have done so in the faintest way, not only from what I think now, but from what I am reported to have said then, and from there being no reason given for the judgment which I should have desired to give if I had thought there were any good ones to support it. But, at all events, there are the opinions of Chief Baron Pollock and Mr. Justice "Willes — opinions which no one who knew those judges will undervalue. Then there is tbe judgment in Ex parte Elliott, besides the expressed opinion for centuries that the felonious origin of a debt is in some way an impediment to its enforcement. But in what way ? I can think of only four pos- sible ways :— 1. That no cause of action arises at all out of a felony ; 2. That it does not arise till prosecution ; 3. That it arises on the act, but is suspended till prosecution ; 4. That there is neither defence to nor suspension of the claim by or at the instance of the felon debtor, but that the Court of its own motion, or on the suggestion of the Crown, should stay proceedings till pubHc justice is satisfied. It must be admitted that there are great difficulties in the way of each of these theories. That the first is not true is shown by Marsh v. Keating (r), where it was held that prosecution being impossible, a felony gave rise to a recoverable debt. It is difficult to suppose that the second supposed solution of the problem is correct. That would be to make the cause of action the act of a felon 2>lus a prosecution. The cause of action would not arise till after both. Till then the Statute of Limitations would not run. In such a case as the present, or where the felon had died, it would be impossible. And it is to be observed that it is never suggested (o) Ubi sup. (?) (1837), 3 Mont. & A. 110 ; 2 \p) (1863), 2 H. & C. 116; 32 Deac. 172. L. J. Ex. 285. (r) (1834), 1 Bing. N. C. 198 ; 1 Scott, 5. 470 TOUTS AND FELONIES. that the cause of action is the debt and the prosecution. The suspension of a cause of action is a thing nearly unknown to the law. It exists where a negotiable instrument is given for a debt, and in cases of compositions with creditors, and these were not held till after much doubt and contest. There may be other instances. And what is to happen ? Is the Statute of Limitations to run ? Suppose the debtor or his representative sue the creditors, is his set-off suspended ? Then how is the defence of impediment to be set up ? By plea ? That would be contrary to the rule nemo allegans sitam turpitvdiinem est audiendus. Besides, it would be absurd to suppose that the debtor himself ever would so plead and face the consequences. Then is the fourth solution right ? No- body ever heard of such a thing ; nobody in any case or book ever suggested it till Mr. Justice Blackburn did as a possibility. Is it left to the Court to find it out on the pleading ? If it appears on the trial is the judge to discharge the jury ? How is the Crown to know of it ? There are difficulties, then, in all the possible ways in which one can suppose this impediment to be set up to the prose- cution of an action. But, again, suppose it can be, what is the result ? It has been held that when the felon is executed for another felony the claim may be maintained. What is to happen when he dies a natural death, when he goes beyond the jurisdic- tion, when there is a prosecution and an acquittal from collusion or carelessness by some prosecutor other than the party injured ? All these cases create great difficulties to my mind in the applica- tion of this alleged law, and go a long way to justify Mr. Justice Blackburn's doubt. Still, after the continued expression of opinion, and the cases of Ex parte Elliott (s) and Wellock v. Constantine (/), I should hesitate to say that there is no practical law as alleged by the respondent." Leslie's The more recent case of Ex parte Leslie («) in itself hardly case. touches the point. Some bankers allowed a customer to overdraw, on his depositing some acceptances which turned out to be forgeries, and the question was whether they could prove in his subsequent bankruptcy without having prosecuted. " We have been referred," said Jessel, M. E., with whom the rest of the Court agreed, " to a line of authorities which seem to show that when a claim arises out (s) Vbi sup. that it shows the cause of action (I) Ubi sup. to be a felony. See also Wiekham (u) (18S2), 20 Ch. Div. 131 ; 51 r. Gatrill (1854), 2 Sm. & G. 353; L. J. Ch. 689 ; and see Eoope v. 23 L. J. Ch. 783 ; Chowne v. D'Avigdor (1883), 10 Q. B. D. Baylis (1862), 31 Beav. 351 ; 31 412 ; 48 L. T. 761, -where it was L. J. Ch. 757 ; S. v. S. or A. v. B. decided that a statement of claim (1889), 16 Cox, C. C. 566; 24 L. R. is not demurrable on the ground Ir. 235. TOUTS AND FELONIES. 471 of a felony, you cannot sue for it until you have prosecuted the felon, or someone else has prosecuted him, or a prosecution has become impossible. That may or may not be so ; I do not wish to Doubt discuss that question on the present occasion. But, assuming that it is suggested so, the rule has no application to the present case, in which the M. R.,as'to claim is founded on an independent contract antecedent to the existence . of rule, corrupt bargain. If criminal proceedings have been taken, it is immaterial at whose instance, or with what result they have been conducted (aj). It is to be observed that the rule only applies when the action is Action against the person guilty of the felony. It does not prevent anyone agamst from suing an innocent third party. If somebody has stolen my party, books and sold them to a bookseller, I may bring an action of trover against the bookseller, though I have not made the faintest attempt at prosecuting the thief {y). So a master may be held civilly responsible for a criminal tort of his servant (z). It is also to be observed that the rule applies only to felonies. Rule does For a misdemeanour, such as assault or libel, the aggrieved person " &PP lv ma v bring an action, quite regardless of the fact that the defendant meanour. is really a criminal (a). Moreover, an action under Lord Campbell's Act may be brought, Campbell's "although the death shall have been caused under such circum- Act. stances as amount in law to felony " (6). There are other cases in which the right of bringing an action is Public restrained on grounds of public policy. No action, for instance, P onc y lies against a commanding officer for acts done in the ordinary course of military discipline (c). " The salvation of tin's country" said the Court in Johnstone v. Sutton (d), "depends upon the dis- (.r) Dudley v. West Bromwich (a) Reg. v. Hardey (1850), 14 Banking Co. (1860), 1 J. & H. 14 ; Q. B. 529 ; 19 L. J. Q. B. 196. 2 L. T. 47. (b) 9 & 10 Vict. c. 93, s. 1. (>/) White v. Spettigue (1845), (c) Johnstone v. Sutton (1787), 1 13 M. & W. 603 ; 14 L. J. Ex. 99; T. R. 493, 784 ; 1 Bro. P. C. 76 ; and see Osborn v. G-iJlett (1873), and see Dawkins v. Rokeby (1866), L. R. 8 Ex. 88 ; 42 L. J. Ex. 53 ; 4 F. lV: F. 806 ; Dawkins v. Paulet Lee v. Bayes (1856), 18 C. B. 599 ; (1869), L. R. 5 Q. B. 94 ; 39 L. J. 25 L. J. C. P. 249 ; Stone r. Marsh Q. B. 53 : Freer v. Marshall (1865), (1827), 6 B. & C. 551 ; R. & M. 4 F. & F. 485; and see The Mid- 364; Gimsou v. Woodfall (1825), land Insurance Co. v. Smith (1881), 2 C. & P. 41 ; Quinlan v. Barber 6 Q. B. D. 561 ; 50 L. J. Q. B. (1825), Batty's [rish Rep. 47; 329, a fh-e insurance ruse, where Crosby v. Long (1810), 12 East, it was decided that the action was 409; 1 Hale, P. C. 546; Hayes v. maintainable in spite of a felony Smith L825), Smith & Batty's having been the cause of action Irish Rep. and the felon had not been prose- ( See Dyer v. Muuday, [1895] cuted. 1 Q. B. 742; 04 L. J. Q. B. {d) Supra. 148. 472 PRIVITY. cipUne of the fleet. . . . If tliis action is admitted, every acquittal before a court-martial will produce one." In the recent case of Appleby v. Franklin (J), a paragraph in a statement of claim, which alleged that the defendant after seducing the plaintiff administered to her certain noxious drugs for the pur- pose of procuring abortion, was lately reinstated, when a Master had struck it out on the ground that it disclosed a felony for which the defendant should have been criminally prosecuted. Privity. — ♦— [137.] LANGRIDGE v. LEVY. (1838) [4 M. & W. 337.] Mr. Langridge, senior, walking one day down the streets of Bristol, noticed a gun in a shop window with the fol- lowing 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. This warranty was false and fraudulent to the defen- dant'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 (d) (1885), 17 Q. B. D. 93; 55 L. J. Q. B. 129. PRIVITY. 473 on by the defendant's counsel was that, if anyone 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. The decision in this case depended so much upon the special cir- False cumstances that there can be deduced from it no wider principle represeu- than this, that he who knowingly makes a false statement, intend- when ' ing others to act upon it, is liable for any damage resulting to any- actionable, one to whom it may have been intended to be communicated, and who has in fact acted upon it (e). The decision proceeded upon the ground of the knoiuledge and fraud of defendant (/). A particular transaction may sometimes be looked at as affording Privity not the right to bring an action either for the breach of contract or in alwavs tort. Take, for instance, the too familiar case of a railway disaster to support caused by the company's negligence : the company are liable to the an actioi i passenger, in contract, because they gave him a ticket, and in tort, 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 contract was made, and with whom alone there was privity, was the father, and yet the son was allowed to bring an action and recover damages. The reason of this is that Levy had been guilty of a tort in making a false representation. If he had made no false repre- sentation , he would have only been liable to the father for 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 the gun. 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(/i), where a chemist sold Poisonous some poisonous hair-wash for the use of a customer's wife, is a nau- -wash. (e) See Pasley v. Freeman, ante, (g) Parry v. Smith (1879), 4 C p. 428. P. D. 325; 48 L. J. C. P. 731; but (/) Wintcrbottom v. "Wright set; Collis /•. Selden (1868), L R (1842), ID M. & W. 109 ; and nee 3 C. P. 495 ; 37 L. J. C. P. 233. Haigh v. Royal Mail Steam Packet (//) (1869), L. R. 5 Ex 1- 39 Co. (1883), 52 L. J. Q. B. 395, L. J. Ex. 8. 640 ; 5 Asp. M. 0. 47. 474 PRIVITY. subsequent case analogous to Langridge v. Levy, with the substitu- tion (per Cleasby, B.) of negligence for fraud. In Blakemore v. Bristol and Exeter Railway Co. (i), the Court declared that it had always been considered that Langridge v. Levy was not to be extended in its application. A danger- The cases of Langridge v. Levy and George v. Skivington must ous lamp, kg distinguished from Longmeid v. Holliday (k), whore a tradesman, in all honesty, 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 contract, 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. Contract The breach of a duty to use reasonable care may always be or tort ? treated as a tort, whether or not it is also a breach of contract, and whether the negligence complained of consisted in a positive mis- feasance or in an omission (I). If a railway company contract with a master to carry his servant, and in doing so are guilty of negli- gence, which causes bodily hurt to the servant, and consequent damage by loss of service to the master, the company may be sued in contract by the master, and in tort by the servant (to). The Pure tort, case of Berringer v. Great Eastern Railway Co. («) deserves atten- tion. It was an action by a father, a butcher, for loss of the services of his son, who had helped him in the shop. The boy had taken a ticket from the London, Tilbury, and Southend Railway Co., and was injured 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 defendants. But the Court held that 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 (i) (1858), 8 E. & B. 1035 ; 27 Kelly v. Metropolitan Rv. Co., L. J. Q, B. 167. [1895] 1 Q. B. 944 ; 72 L. T. 551 ; (/>•) (1851), 6 Exch. 761 ; 20 L. J. and Meux v. G. E. Ry. Co., [1895] Ex. 430 ; and see also the import- 2 Q. B. 387 ; 73 L. T. 247 ; which, ant case of Heaven v. Pender (18S3), it is submitted, overrule Alton v. 11 Q. B. D. 503 ; 52 L. J. Q. B. M. Ry. Co. (1865), 34 L. J. C. P. 702 ; reversing 9 Q. B. D. 302 ; 51 292 ; 19 C. B. N. S. 213. L. J. Q. B. 465 ; and as to liability (tit) Marshall v. York, &c. Ry. for representations, see Barry v. Co. (1851), 11 C. B. 655; 21 L. J. Crosskey (1861), 2 J. & H. 1; C. P. 34; and see also the case of Peek v. Gurney (1873), L. R. 6 H. Becher v. Great Eastern Ry. Co. L. 377; 43 L. J. Ch. 19. (1870), L. R. 5 Q. B. 241; 39 (I) See the recentcases of Taylor L. J. Q. B. 122. v. M. S. & L. Ry. Co., [1895] 1 («) (1879), 4 C. P. D. 163; 48 Q B. 134 : 64 L. J. Q. B. 6 ; L. J. C. P. 400. ACTIONS AGAINST MAGISTRATES. 475 were wrongfully driven against, or across the path of, another vehicle, whereby a servant therein was hurt and his master lost his services." See also the note to Thomas v. Ehymney Bailway Co., ante, p. 397; and read the case of Heaven v. Pender, cited ante; and see Elliott v. Hall (1885), 15 Q. B. D. 315 ; 51 L. J. Q. B. 518, injury to servant of vendee : and Jewson v. Gatti (1885), 1 C. & E. 564, occupier of premises and strangers ; and Norris v. Catmur (1885), 1 C. & E. 576, landlord and sub-tenant. Actions against Afagist 'rates. CREPPS v. DURDEN. (1777) [138.] [Oowp. 640.] It was very wrong, of course, of Peter Crepps to be selling hot rolls on a Sunday morning instead of being at church, and as it could not well be called a "work of necessity and charity," it was no doubt a violation of the Act of Charles II., of pious memory. But the Act pro- vides 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 incurred 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." The principle of Crepps v. Durden was approved and applied in the recent case of The Apothecaries' Co. v. Jones (u), which aroso under sect. 20 of the Apothecaries Act, 1815 (55 Geo. III. c. 194), (o) [1893] 1 Q. B. 89 ; G7 L. T. 077. V. Bale. 476 ACTIONS AGAINST MAGISTRATES. which provides that, ii any person " shall act or practise as an apothecary" without having obtained the requisite certificate, "every person so offending shall for every such offence forfeit £20." The defendant had given advice and had prescribed and supplied medicine to three separate persons on different occasions on the same day, without a certificate, and was sued for three separate penalties. It was, however, held that only one offence had been committed, and that only one penalty was therefore recoverable, for the statute contemplated an habitual course of conduct, and not an isolated act. Milnes But in Milnes v. Bale ( p) it was held that, where a person has been guilty of several acts of bribery at a municipal election, he is liable to a penalty in respect of each such act of bribery. ' ' Various decisions," said Brett, J., "were cited as authorities in favour of the contention that there can be only one penalty. If I understand the effect of these cases rightly, in every case where it was held that there could only be one penalty in respect of several acts, it was because all the acts only constituted one offence against which the penalty was enacted. The test, as it appears to me, is whether, having charged the offence against which the penalty is enacted, you can prove it by giving in evidence several distinct acts com- mitted by the person charged. It is not strictly accurate to speak of the penalties as cumulative in such a case as the present. The question is, whether there is one or more offences, and if the offences are distinct, there is only one penalty for each offence. I cannot find that in any case in which each act done was a complete offence in itself, and in which it would have been inadmissible to give other acts in proof of the committal of the same offence, it was held that several penalties could not be inflicted. In the case of Reg. v. Scott (q), the effect of the decision seems to me to be this : where several oaths are made use of on one occasion it is but one swearing, and consequently there is only one offence, and only one penalty is incurred, though such penalty is cumulative, being at the rate of two shillings for each oath ; but if the same set of oaths were used on distinct occasions, though they all occurred on the same day, there would be several offences, and a penalty would be incurred for each distinct swearing. There is no decision that if a man swore at one person at one time of the day, and at another person another time, he would not be liable to two penalties. It seems to me that in such a case he would be liable to two penalties, because there would be two offences. In Garrett v. Messenger (r) (p) (1875), L. R. 10 C. P. 591 ; L. J. M. C. 15. 44 L. J. C. P. 336. (>•) (1867), L. R. 2 C. P. 583 ; {q) (1863), 4 B. & S. 368 ; 33 36 L. J. C. P. 337. ACTIONS AGAINST MAGISTRATES. 477 the offence charged was keeping open an unlicensed house. It is not keeping it open for an hour that is the offence ; the offence is the keeping a house to be used as a house of entertainment without a licence, which is a comprehensive offence, to be proved by many acts. According to the case of Marks v. Benjamin (s), it is neces- sary in the case of a charge of this sort to give evidence of more than having the house open for a short period, or in a particular instance. In such a case a penalty cannot be imposed for each act, because each act is not a separate offence. So in Pilcher v. Stafford (t) the ground of the decision was that there was only one offence, viz., leaving a child unvaccinated for a certain period, and consequently there could only bo one penalty. Again, in Crepps v. Diuden, the offence contemplated was exercising the party's ordi- nary calling on Sunday. It was not the doing of one isolated act that would be evidence of the committal of the offence, but several acts might be given in evidence to prove one offence. All these decisions are inapplicable to the present case, because each act of bribery is a complete offence in itself." As to actions against magistrates, the reader is referred to 11 & 12 Actions Yict. c. 44, "An Act to protect justices of the peace from vexatious against . iustiCGS. 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 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 justices at petty claim of sessions is generally ousted if a bond fide claim of right is put for- right, ward by the defendant. This subject, however, is not sufficiently connected with nisi prim to merit discussion at any length here ; and the reader is referred to the following cases : — Hargreaves v. Diddams (1875), L. E. 10 Q. B. 582 ; 44 L. J. M. C. 178 ; Eeg. v. Pearson (1870), L. E. 5 Q. B. 237 ; 39 L. J. M. C. 7G ; White v. Pox (1880), 49 L. J. M. C. 60 ; 44 J. P. 618 ; White v. Pcast (1872), L. 11. 7 Q. B. 353; 41 L. J. M. C 81 ; Denny v. Thwaites (1876), (») i'1839\ 5 M. & W. 565; 3 {t) (1SGI), 4 B. & S. 775; 33 Jur. 1194. L. J. M. C. 113. 478 NOTICE OF ACTION. 2 Ex. D. 21 ; 46 L. J. M. C. 141 ; Beece v. Miller (1882), 8 Q. B. D. 626; 51 L. J. M. C. 64 ; and Pearce v. Scotcher (1882), 9 Q. B. D. 162 ; 46 L. T. 342; B. v. Young, Ex parte White (1883), 52 L. J. M. 0. 55 ; 47 J. P. 519. Notice of Action. [139.] ROBERTS v. ORCHARD. (1864) [2 H. & C. 769 ; 33 L. J. Ex. 65.] Mr. Orchard was a draper in Argyle Street, London, and the plaintiff 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 "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 dislioncdhj 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 filling public offices or discharging public duties, require that a NOTICE OF ACTION. 479 month's notice shall be given before an action can be commenced against them. As to the form of the notice, the statute requiring it should in Form of each instance be consulted. Speaking generally, however, it may notlce - be said that it is sufficient if it conveys to the mind of the defen- dant reasonable information of what the complaint is. In a recent case a man went to law with a Lancashire Local Board for an injury to his horse, caused by part of the road over which it was being driven suddenly giving way (u). In the notice of action which, by the Public Health Act, 1848 (11 & 12 Yict. c. 63), he was bound to give, the plaintiff only complained of the defendants' //"/(-feasance, whereas he was really suing them for wm-feasance. But it was held that the notice was sufficient in spite of the omis- sion. " The object of a notice of action," said the Coxu-t, " is to enable a party to tender amends ; and therefore it is sufficient if it states substantially the nature of the complaint." In the case Inaccurate of Green v. Hutt (;c) an inaccuracy as to the date of arrest in a date. notice under 24 & 25 Yict. c. 96, s. 113, was held to be pardonable, and the judge who had nonsuited in consequence to be wrong. In the absence of agreement as to the amount and mode of pay- Solicitor ment (?/), a solicitor cannot begin an action for his fees till a suin g f° r . costs, calendar month after he has sent in a signed bill of costs (2). The client, however, to whom an unsigned bill is delivered may waive the want of signature and adopt it («). In Stone v. Hyde it was decided that the notice of action under Employers' sect. 7 of the Employers' Liability Act, 1880 (43 & 44 Yict. c. 42), Liability need not be expressed in strictly technical language ; it is enough if it substantially conveys to the mind of the person to whom it is given the name and address of the person injured and the cause and the date of the injury. A letter from the plaintiff's solicitor gave only the date of the injury, and stated that the plaintiff was and had, for some time past, been under treatment at a hospital "for injury to It is ley." This defect in the notice did not render it invalid (b). In Foat v. Mayor, &c, of Margate, it was laid down that in an Public action for the recovers* of land one month's notice need not be given -? eal l h ;_- J ° Act, I81O. (m) Smith r. West Derby Local L. J. Ex. 265 ; and see Ingle v. Board (1878), 3 C. P. D. 423; 47 McCutchan (1884), 12 Q. B. D. L. J. C. P. 607. 518 ; 53 L. J. Q. B. 311 ; Penley (x) (1882), 51 L. J. Q. B. 640; v. Anstruther (1883), 52 L. J. Ch. 46 L. T. 888. 367 ; 48 L. T. 664. (y) See 33 & 34 Vict. c. 28, 8. 15. (A) (1882), 9 Q. B. D. 76; 51 (z) 6 & 7 Vict. c. 73, 8. 37. L. J. Q. B. 452 ; C'larkson v. I '■■ ' ,11 Bear. Musgrave L882), 9 Q. B. D. 380 ; 20 L. -I. Ch. 110; ;iud Billing 51 L. J. Q. B. .025. And see ante, r. Coppock (1847), 1 Ex. 15; 16 p. 395. 480 NOTICE OF ACTION. to the local authority, as is the statutory rule in other cases; it being decided that sect. 264 of the Public Health Act, 1875, does not apply to actions for the recovery of land (c). A constable acting under the Contagious Diseases (Animals) Act is not entitled to notice of action, as 1 & 2 Will. IV. c. 41 applies only to cases where the authority by which a constable acted was given by the common law or by some statute existing when 1 & 2 Will. IV. c. 41 was passed (/) .See Johnson v. Emerson Co. v. Eyre (1883), 11 Q. B. D (1871), L. R. G Ex. 329 ; 40 L. J. 074 ; 52 L. J. Q. B. 488. Ex. 201 ; Earley v. Hanks (1855), (b) Hicks v. Faulkner, ubi sup. 486 MALICIOUS PROSECUTION, ETC. Talse imprison- ment. issues arising therein lies upon the plaintiff; and, although tho plaintiff proves that he was innocent of the charge laid against him, and although tho judge, in order to enable himself to determine the issue of reasonable and probable cause, leaves subsidiary questions of fact to the jury, nevertheless the onus of proving the existence of such facts as tend to establish the want of reasonable and probable cause on the part of the defendant, rests upon the plaintiff. The plaintiff, a surgeon, had attended one M., for bodily injuries alleged to have been sustained in a collision upon the defendants' railway. M. brought an action against the defendants, which was compromised by the defendants paying a large sum for damages and costs. Subsequently, the directors of the defendants' company, having received certain information, caused the statements of certain persons to be taken by a solicitor ; these statements tended to show that tho in j uries of which M. complained were not caused at the collision, but were produced wilfully by the plaintiff, with the con- sent of M., for the purpose of defrauding the defendants. These statements were laid before counsel, who advised that there was good ground for prosecuting the plaintiff and M. for conspiracy. The defendants accordingly prosecuted the plaintiff, but he was acquitted. In an action for malicious prosecution, the judge directed the jury to find whether the defendants had taken reason- able care to inform themselves of the true state of the case, and whether they honestly believed the case which they laid before the magistrates ; the jury having answered these questions in the affir- mative, the judge entered the judgment for the defendants, and it was held by the House of Lords and the Court of Appeal, reversing the decision of the Divisional Court, that the judge had rightly entered the judgment for the defendants (c). False imprisonment has been defined as " a trespass committed by one man against the person of another by unlawfully arresting him, and detaining him without any legal authority " {d). The imprisonment need not be by actual touch ; any show of authority or force submitted to is sufficient, provided there is no reasonable means of escape open to him (e). But the restraint must be total ; it is not imprisoning a man to prevent his going in a particular direction (/). If a prisoner is unlawfully detained after he has gained a right to be discharged, it becomes a fresh imprisonment, (c) (1883), 11 Q. B. D. 440; 52 L. J. Q. B. 620. Reversing 11 Q. B. D. 79; 52 L. J. Q. B. 352; see also (1886), 11 App. Ca. 247; 55 L. J. Q. B. 457. (d) Addison on Torts, 7th ed., p. 146 ; see also Henderson v. Preston (1888), 21 Q. B. D. 362 ; 57 L. J. Q. B. 607. (,) [1892] A. C. 75; 61 L. J. W. R. 837; Praed v. Graham P.C.I. ■'i-.-'j. j I ii. I:, h. .v;; .v.i L. J. ( ) (1879). 5 C. P. D. 280. Q. B. 230 ; Roberts v. Owen (p) Phillips v. L. & S. W. Ry (1889), 53 J. P. 502. Co. (1879), 5 Q. B. D. 78 ; 49 L. J. (>») Merest v. Harvey (1814), 5 Q. B. 233; 494 MEASURE OF DAMAGES IN TORT. Wives, husbands, parents, and children. Within 12 months. Pecuniary loss only to he compen- sated for. Superior education. Funeral expenses. Only one action. Policy of himself might have brought an action for personal injuries) from the person whose "wrongful act, neglect, or default" has caused the death. " Every such action," the Act provides, " shall be for the benefit of the wife, husband, parent (q), and child (r) of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator." If, how- ever, there is no executor or administrator, or if he does not commence the action within six months of the death, it may be brought by those really interested (s). But, in either case, it must be commenced within twelve months of the death. In estimating the damages under this Act, the jury must compensate for pecuniary loss alone ; they cannot consider the grief of those who have lost a dear relative (t). But a reasonable expectation of pecuniary benefit from the continuance of the life may be taken into account. The jury, for instance, may give compensation for the loss of the benefit of a superior education which the chddren would have received if their father had lived (u). Funeral expenses are not recoverable (x). The amount given is to be divided among the beneficiaries in such shares as the jury shall direct (y). If the deceased in his lifetime recovered damages for the injury done him, his relatives cannot bring another action after he is dead (2). But if a man has been fraudulently induced to accept a sum of money and sign a release by deed — by being told, for instance, that his injuries are of a very trifling nature, and that, if he got worse, he could claim fresh damages — in that case he (or, if he died, his representatives) could maintain a subsequent action (a). A policy of insurance which a person injured may have effected is (q) See Hetherington v. N. E. Ry. Co. (1882), 9 Q. B. D. 160; 51 L. J. Q. B. 495. (»■) ' ' Child ' ' includes a child en ventre sa mere, but not an illegiti- mate child. But see Walker v. G. N. Ry. Co. (1891), 28 L. R. Ir. 69. (s) 27 & 28 Vict. c. 95, s. 1. \t) Blake v. Midland Ry. Co. (1852), 18 Q. B. 93 ; 21 L. J. Q. B. 233 ; and see Grand Trunk Ry. of Canada v. Jennings (1888), 13 App. Ca. 800 ; 58 L. J. P. C. 1 ; Stimp- son v. Wood (1888), 57 L. J. Q. B. 484 ; 59 L. T. 218. (u) Pym v. G. N. Ry. Co. (1863), 4 B. & S. 396 ; 31 L. J. Q. B. 377 ; but see Harrison v. L. & N. W. Ry. Co. (1885), 1 C. & E. 540. (*) Dalton v. S. E. Ry. Co. (1858), 27 L. J. C. P. 227 ; 4 C. B. N. S. 296. (y) Sect. 2 ; and see Springett v. Balls (1866), 7 B. & S. 477. (s) Read v. G. E. Ry. Co. (1868), L. R. 3 Q. B. 555; 18 L. T. 82. The statute gives to the personal representatives of a person killed by the wrongful act of another, not an independent cause of action, but a right of action where there was a subsist- ing cause of action at the time of the death ; see 9 B. & S. 714 ; 37 L. J. Q. B. 278 ; and Haigh v. Royal Mail Steam Packet Co. (1883), 52 L. J. Q. B. 640; 49 L. T. 802. («) Hirschfield v. L. B. & S. C. Ry. Co. (1876), 2Q.B.D.1; 46 L. J. Q. B. 94. MEASURE OF DAMAGES IN TORT. 495 not to be taken into account against him in settling the damages (b) ; insurance but if the insurance money covers the whole consequences of the coun (; e( } injury, he is a trustee for the insurers of the money he receives from the defendants (c). In Bradshaw v. The Lancashire and Yorkshire Railway Com- Damage to pany(d), it was held that where a passenger on a railway was gst^t^ injured, and after an interval died in consequence, his executrix might recover in an action for breach of contract agaiust the defen- dants the damage to his personal estate arising in his lifetime from medical expenses and loss occasioned by his inability to attend to business. But if the action were in tort (as where the deceased was run over at a level crossing) such a claim could not be supported (e). The 25th section of the Regulation of Railways Act, 1868 (/), Arbitra- provides for the reference to arbitration of any claim for damages in respect of injuries or death, if the parties are agreed. On joint aj>plication in writing to the Board of Trade, an arbitrator will be appointed, with power to determine the compensation, if any, to be paid. (b) Bradburn v. G. W. Ry. Co. (d) (1875), L. R. 10 C. P. 189 ; (1874), L. R. 10 Ex. 1 ; 44 L. J. 44 L. J. C. P. 148; and see Leg- Ex. 9. gott v. G. N. Ry. Co. (1876), 1 Q. (c) See Randal v. Cockran (1748), B. D. 599; 45 L. J. Q. B. 557; 1 Ves. sen. 97 ; Simpson v. Thomp- Potter v. Met. Dist. By. Co. (1874), son (1877), 3 App. Ca. 279 ; 38 30 L. T. 765. L. T. 1 ; Clark v. Blything (1S23), (e) Pulling v. G. E. By. Co. 2 B. & C. 254; 3 D. & R. 489; (1882), 9 Q. B. D. 110; 51 L. J. and see Buhner v. Bulmer (1883), Q. B. 453. 25 Ch. D. 409 ; 53 L. J. Cb. 402. (/) 31 & 32 Vict. c. 119. MISCELLANEOUS CASES. 8. C. K K HEARSAY EVIDENCE. 499 Evidence : Hearsay, DOE rf. DIDSBURY r. THOMAS. (1811) [143.] [14 East, 323.] In this case Ann Didsbury brought an action of eject- ment for the Meadow Farm at Tideswell in Derbyshire. She claimed it under the will of a Mr. Samuel White, who had died some time before. The will was dated November 26th, 1754, and the chief obstacle to the plain- tiff's success was to prove that the lands were the testator's at that time. In support of her case she called a witness who swore that the farm in question, together with another farm called Foxlow's Croft, were reputed to have been Sir John Statham's, and to have been purchased at the same time with it by Samuel White from Sir John. That of course alone did not fix any particular date. But to supplement this evidence, and make it serve the plain- tiff's cause, a deed was produced dated March 25th, 1752, whereby in consideration of natural love and affection, Samuel White bargained and enfeoffed his son Edward of Foxlow's Croft, "all which said farm, &c, have been lately purchased amongst other lands and hereditaments by the said Samuel White of and from Sir John Statham." It was clearly proved that Richard, the testator's eldest son, had taken possession of and occupied the Meadow Farm at the same time that his younger brother Edward had begun to occupy Foxlow's Croft ; and also that the person immediately preceding Richard in the occupation of the Meadow Farm was tenant to Sir John : and tho K K 2 500 HEARS A Y EVIDENCE. Ante litem motam. Particular facts not admissible. plaintiff's counsel argued that under the circumstances the evidence of reputation could be received. It was held, however, that the evidence could not he received, as reputation is not admissible in questions of private right. The reasons general! y given why what another man said is not evidence are that he was not on his oath when he said it, and that he cannot be cross-examined. But the real principle of the exclu- sion would seem to be, that "all second-hand evidence, whether of the contents of a document or of the language of a third person, which is not connected by responsible testimony with the party against whom it is offered, is to be rejected " [a). The chief exceptions to the rule that " hearsay is not evidence" are the following : — 1. Hearsay is admissible respecting matters of public and general interest, such as the boundaries of counties or parishes, claims of highway, &c. The reason for the exception in this case is that the origin of such rights is generally obscure and incapable of better proof, that people living in the district are naturally interested in local matters and likely to know about them, and that reputation cannot well exist without the concurrence of many persons who are strangers to one another, and yet equally interested. Such declarations, however, to be evidence must have been made ante litem motam, that is, before any dispute on the subject has arisen ; although they do not become inadmissible because they were made with a view of preventing the dispute from arising {b). They must also be confined to general matters, and not touch the particular facts from which the general right or interest is to be inferred. ' ' Thus, if the question be whether a road be public or private, declarations by old persons, since dead, that they have seen repairs done upon it will not be admissible ; neither can evidence be received that a deceased person planted a tree near the road, and stated at the time of planting it that his object was to show where the boundary of the road was when he was a boy(c). So, proof of old persons having been heard to say that a stone ivas erected, or boys ivMpped, or cakes distributed, at a particular place, will not be admissible evidence of boundary ; and where the question was whether a turnpike stood within the limits of a town, though evidence of reputation was received to show that the town extended to a certain point, yet declarations by old people, since dead, that (a) Best on Evidence, p. 629. (b) Berkeley Peerage case (1 SG 1 ) 8 H. L. Ca. 21. (r) R, v. Bliss (1837), 7 A. & E. 550 ; 2 N. & P. 461. HE A ItS A 7 E VIDENCE. 501 formerly houses stood where none any longer remained were re- jected, on the ground that these statements were evidence of a particular fact " (<1). As the leading case shows, evidence of this kind is not admissible Questions on questions of private right. In a case in which the question was rio-hl^ & who had the right to appoint to the head-mastership of Skipton-in- Craven grammar school, an old man of eighty years was produced to prove the tradition he had received from his ancestors as to the mode of election in their time, but the evidence was rejected on the ground that the question in dispute was one of private right (e). Similar evidence was rejected in a case(/) where the question was whether the sheriff of a county (Cheshire) or the corporation of the county town were charged with the duty of executing criminals. An ex officio information was filed by the Attorney-General against the High Sheriff for not having executed some murderers ; and the chief witness for the Crown was the Clerk of Assize. In cross- examination he was asked whether he had not heard it reported amongst old persons in Chester that the corporation were bound to execute. But the clerk's evidence on this point was not allowed to be given. "This," said Littledale, J., "is a private question whether the sheriffs of the county or the city are to perform a duty. The citizens of Chester may, perhaps, have a particular interest ; and how do we know that there may not be a grant of felons' goods to them ? However this matter may be, the question is immaterial to the public." It seems to be a doubtful point whether evidence of reputation can be given to prove or disprove a private prescriptive right or liability in which the public is interested. Such evidence, however, was admitted in a case in which the inhabitants of a county, being indicted for non-repair of a public bridge, pleaded that certain specified persons were bound ratiom t< nura. to repair it (g). It is, too, a well established rule of law that public documents are Public admissible for certain purposes, where they have been made after c l° cu - public inquiry by a public officer. The word "public" is not to be taken in the sense of meaning the whole world. " I think," says Lord Blackburn (/<), "an entry in the books of a manor is public in the sense that it concerns all the people interested in the manor. And an entry probably in a corporation book concerning a corporate matter, or something in which all the corporation is concerned, (d) Taylor on Evidence, vol. i., (y) R. v. Bedfordshire (1855), 4 p. 5'ic. E. & B. 535 ; 24 L. J. Q. B. 81. (e) Withnell V. Gartham (1795), {/<) Sturla v. JFreccia (1880), 5 1 j;>p. 322 ; G T. Ii. 388. App. Ca. at p. G43 ; 50 L. J, (/) R. v. Antrobus (1835), 2 A. Ch. 86. & E. 788 ; G C. & P. 784. 502 HEARSAY EVIDENCE. would bo ' public ' within tbat sense. But it must be a public document, and it must be made by a public officer. I understand a public document to mean a document that is made for tbe purpose of the public making use of it, and being able to refer to it. It is meant to be where there is a judicial, or quasi-judicial, duty to inquire." And it has recently been held (*) in an action for trespass to a several fishery, that entries of the names of tenants in parish rate-books were admissible in proof of ownersbip of the fishery by the plaintiff's predecessors in title. But, on the other hand, it was held in the recent case of Beg. v. Berger(A) that a map attached to an old inclosure award showing a highway existent at the date of the award, was not admissible as evidence of reputation to prove the boundaries of the highway at that date against a person whose property adjoined the highway, but over which the Inclosure Com- missioners had no jurisdiction. Matters Tbe Ecclesiastical Courts may consult ancient authors, historical ecclesias- anc i theological works, pictures, engravings, and other ancient documents, with respect to the practice of the primitive church, the ritual of the Eastern and "Western Churches, the position of the Lord's table, the position of the celebrant at the table, and like questions, which are beyond the reach of living memory (I). redigree. 2. Hearsay is admissible in matters of pedigree, where the pedi- gree to which the declarations relate is directly in issue. "The question is, which of three sons (Fortunatus, Stephanus, and Achaicus) born at a birth is the eldest. ' ' The fact "that the father said that Achaicus was the youngest, and he took their names from St. Paul's Epistles (see 1 Cor. xvi. IT), and the fact that a relation present at the birth said that she tied a string round the second child's arm to distinguish it, are relevant " (m). Such declarations, together with inscriptions on tombstones, entries in family bibles, and the like, are admissible on the prin- ciple that they are the natural effusions of a person who must know the truth, and has no motive for misrepresenting it. As in the last case, the declarations must have been made aide litem motam ; and it is now settled that the persons making them must have been, not merely servants, friends, or neighbours, but mem- bers of the family (n). (i) Smith v. Andrews, [1891] 2 (m) Stephen on Evidence, 5th ed. Ch. 678 ; 65 L. T. 175. p. 43 ; and see Haines v. Guthrie (k) [1894] 1 Q. B. 823 ; 63 L. J. (1884), 13 Q. B. D. 818 ; 53 L. J. Q. B. 529. Q. B. 521 ; In »•* Thompson (1887), {I) Bead v. Lincoln (Bishop), 12 P. D. 100 ; 56 L. J. P. 46. [1892] A. 0. 644 ; 62 L. J. P. G. 1. (») Shrewsbury Peerage case (1858), 7 H. L. Ca. 1. HEARSAY EVIDENCE. 503 And such statements by deceased members of the family may be proved, not only by showing that they actually made the state- ments, but by showing that they acted upon them, or assented to them, or did anything that amounted to showing that they recog- nised them (o). 3. Hearsay is admissible in favour of ancient documents when Ancient , i j • ~ . , . documents, tendered in support ot ancient possession. " The proof of ancient possession," said "Willes, J., in a disputed fishery case (_p), " is always attended with difficulty. Time has removed the witnesses who could prove acts of ownership of their personal knowledge, and resort must necessarily be had to written evidence. In some cases written statements of title are admitted even when they amount to mere assertion, as in the case of a right affecting the public generally ; but the entry now under considera- tion is admissible according to a rule equally applicable to a fishery in a private pond as to one in a public navigable river. That rule is, that ancient documents coming out of proper custody, and purporting upon the face of them to show exercise of ownership, such as a lease or a licence, may be given in evidence without proof of possession or payment of rent under them as being in themselves acts of ownership and proof of possession. This rule is sometimes stated with the qualification, provided that possession is proved to have followed similar documents, or that there is some proof of actual enjoyment in accordance with the title to which the documents relate. And certainly in the case of property allowing of continuous enjoyment, without proof of actual exercise of the right, any number of mere pieces of paper or parchment purport- ing to be leases or licences ought to be of no avail. It may be a question whether the absence of proof of enjoyment consistent with such documents goes to the admissibility or only to the -weight of the evidence ; probably the latter." Sir James Fitzjames Stephen in his "Digest" does not place this class of evidence as an exception to the rule excluding hearsay, but gives the effect of it separately, thus : " Where the existence of any right of property, or of any right over property, is in question, every fact which constitutes the title of the person claiming the right, or which shows that he, or any person through whom he claims, was in possession of the property, and every fact which constitutes an exercise of the right, or which shows that its exercise was disputed, or which is inconsistent with its existence, or renders its existence improbable, is relevant. "Illustrations. — (a.) The question is whether A. has a right of (o) Per Blackburn, L. J., in (p) Malcolmson v. O'Dea (1863), Sturla v. Frecciu. supra, at p. (HI. 10 II. L. Ca. 593; 9 L. T. 93. 504 HEARSAY EVIDENCE. Entries against interest. Entries in course of business. Dying leclara- tions. Character. Sheen v. Bump- stead. 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 deemed to be relevant (•) Doe d. Egremont v. Pulman (1842), 3 Q. B. 622. (*) Sheen v. Bumpstead (1863), 2 H. & C. 193 ; 10 Jur. N. S. 242. DECLARATIONS OF DECEASED PERSONS. 505 tomer, and the cheese-factor went to law with Bunipstead for a fraudulent misrepresentation. In defence, Bunipstead called a witness who was asked by the defendant's counsel, " Was Watson on the 24th of October, 18G0, trustworthy to your belief?" The question was held admissible, as tending to show that Bumpstead made the representation in good faith. Bramwell, B., however, dissented on the ground that the question was one as to the witness's belief, and not as to Watson's reputation ; and see the recent case of Scott v. Sampson (1882), 8 Q. B. D. 491 ; 51 L. J. Q. B. 3S0. 8. Spoken words may, too, sometimes become admissible as forming part of the transaction, or, as it is technically called, as part of the res gestce. 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 complained. This woman can be asked, "Did she make a com- plaint 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 gestae. Evidence : Declarations by Persons since deceased. PRICE v. TORRINGTON. (1703) [144.] [1 Salk. 285.] 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 went home. The parti- cular 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 hy a disinterested person in the ordinary course of his Ijasinrss. >0G DECLARATIONS OF DECEASED PERSONS. [145.] HIGHAM v. RIDGWAY. (1808) [10 East, 109.] When was William Fowden born ? On the answer to this question depended large 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 suffering recoveries and barring remainders. 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 in 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 6.s. 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 put himself down as paid when he had not been. These two cases establish that statements made by deceased persons are admissible in evidence when they were made in the usual course and routine of business, or when they were made DECLARATIONS OF DECEASED PERSONS. 507 against the interest of the declarant. In order that a statement may be admissible as falling within the first of these two classes, it must satisfy four conditions (t) : "(1.) That it is an entry of a Four con- transaction effected or done by the person who makes the entry, ' lons- (2.) that it is an entry made at the time of such transaction or near to it, (3.) that it is made in the usual course and routine of business by that person, and (4.) that he was at that time a person who had no interest to mis-state what had occurred." Moreover, the reader must carefully notice that when the entry is admissible as having been made in the ordinary course of the deceased person's business, only so mucli of the entry as it teas the man's duty to make is admis- sible ; any other fact which haj)pens to be stated in the entry, no Extra in- matter how naturally it occurs, is excluded. Thus, in one well- iormatlon - known case (■»■) it became necessary to show that a person had been arrested in South Molton Street. The officer who arrested him had Place of died since the arrest, but it was proposed to put in evidence a aiies ' certificate made by him at the time of the arrest, which sj>ecified, with other circumstances, the place of the arrest. It was held, however, that although the certificate would have been admissible to establish the fact of the arrest, it could not be accepted in evidence to show where the arrest had taken place, inasmuch as the duty of the officer was to annex to the writ a certificate stating merely the fact of the arrest, and not the particulars attending it. A different rule, however, prevails as to entries admissible by reason of being contrary to interest. Not only is the entry allowed to prove the particular fact which is against the writer's interest (e. erformed under circumstances which would have rendered the officiating clergyman liable to a criminal prosecution. Provided, (t) Per Brett, L. J., in Polini r. 531. Gray (1879), 12 Cli. D. 438 ; 49 L. \z) Sussex Peerage case (LSI 1), J. Ch. at p. 49. 11 (J. & F. 85, at p. 108; 8 Jur. (u) Cliamlifi-s v. Bernasconi 793. (1834), 1 C. M. & R. 317; 4 Tyr. 508 DECLARATIONS OF DECEASED PERSONS. Massey v. Allen. Admissions by persons in posses- sion of land. Verbal declara- tions. however, that a pecuniary interest in fact exists, the Courts are not critical in weighing the amount of it. In an action (//) for indemnity in respect of certain shares purchased in the name of the plaintiff as trustee, the plaintiff sought to prove that the shares were purchased for one of tho defendants by his stockbroker. To establish this the plaintiff tendered in evidence an entry made by the stockbroker, who had died before the trial, in his day-book. The entry was, however, ruled to be inadmissible, because it might, according to the turn of the market, have proved available for the advantage of the stockbroker as well as against him. Nor was the entry allowed to be received on the ground that it had been made in the ordinary course of business, and for this reason : the entry was not made by the broker in the discharge of any duty by him. The day-book in which the entry was made was kept by the broker simply for his own convenience. It appears to be a moot point whether a declaration is admissible as contrary to interest when it is the only evidence of the charge of which it shows the subsequent payment (2). 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 owners who have a limited interest in the property will not avail against reversioners or remaindermen (a). The reader will understand that not only are the written entries of a deceased person admissible, but also his verbal declarations, when made under circumstances which satisfy the requisite con- ditions. As the late Lord Justice Thesiger observed (b), "The principle upon which written entries of a deceased person are ad- missible in evidence is this, that, in the interests of justice, where a person who might have proved important material facts in an action is dead, his statements before death — I pass over for the moment whether in writing or verbal — relating to that fact are admissible, provided there is a sufficient guarantee that the state- ments made by him were true. It is considered, and properly considered, that where the statements made by a person were statements against his interest, those statements, at all events in the general run of cases, would probably be true. Now, is there any reason in principle why there should be a distinction made between the written entries of such a deceased person under such (1/) Massey v. Allen (1879), 13 Ch. D. 558 ; 49 L. J. Ch. 76. (z) Doe d. Gallop v. Vowles (1833), 1 Mo. & Eob. 261 ; R. v. Heyford, 2 S. L. C. (a) R. v. Exeter (1869), L. R. 4 Q. B. 341 ; 38 L. J. M. C. 126; Crease v. Barrett (1835), 1 C. M. & R. 917; 5 Tyr. 458. (b) Bewley v. Atkinson (1879), 13 Ch. D. 283 ; 49 L. J. Ch. at p. 160. DECLARATIONS OF DECEASED PERSONS. 509 circumstances and his verbal declarations ? I can see no reason. "When the statements are merely verbal, there is every reason for watching more carefully the evidence by which those declarations are proved ; but provided you are satisfied the declarations were in fact made, there is no reason whatever why there should be any distinction between the admissibility of the verbal declarations and the admissibility of the written entries." It was the practice that the proceedings of the Provost and Fellows of King's College, Cambridge, should be entered in a book, and that the entries should be signed by the registrar of the college, who was a notary public, and who signed the entries in that character. One or two of the entries were not so signed. It was decided that an unsigned entry was not admissible in evidence, notwithstanding that it was proved to be in the handwriting of the person who usually made the entries at the time when it was made (c). F. was tenant to C. with a promise of a lease for twenty-one years from September, 1851, to September, 1872, at the rent of 84?. 16s. Afterwards C. entered F.'s name in his rent book as the tenant of 128 acres at 16s. an acre, at yearly rent of 102/. 8s., less il. for county cess 98?. 8s. " Tenure thirty-one years from Septem- ber, 1872, at rent of 16s. per acre, allowed 4?. for county cess." The entry was in C.'s handwriting. Held that it was admissible in evidence as a statement against the proprietary and pecuniary interest of C. (d). Neither proof of an entry made by a deceased person in the ordinary course of business in a postage book of a letter to be posted, nor proof of possession by the deceased person for the pur- pose of posting, is sufficient evidence of posting (e). And consult the recent cases of Newbould v. Smith (18S6), 33 Ch. Div. 127'; 55 L. J. Ch. 788 ; affirmed on different grounds, 14 App. Ca. 423 ; 61 L. T. 814; Ex parte Edwards, In re ToUemache (18S4), 14 Q. B. D. 415 ; Ex parte Eevell, In re ToUemache (1884), 13 Q. B. D. 720 ; 54 L. J. Q. B. 89 ; In re Turner, Glenister v. Harding (1885), 29 Ch. D. 985 ; 53 L. T. 528. The Lovat Peerage Case (1885), 10 App. Ca. 763. (c) Fox v. Bearblock (1881), 17 11 L. E. Ir. 10G. Ch. D. 429; 50 L. J. Ch. 487; (e) Rowlands v. DeVcechi (1882), and see Dysart Peerage case (1881), 1 C. & E. 10; and see Dodd.s v. 6 App. Ca. 489. Tuke (1884), 25 Ch. D. 617 ; 53 (ft) Conner v. Fitzgerald (1883), L. J. Ch. 598. 510 HIGHWAYS. Highways. [146.] What is a highway ? Easement. Pheasant shooting in the highway. Presump- tion of ownership. DOVASTON v. PAYNE. (1795) [2 II. Bl. 527.] This was an action for wrongfully taking and impound- ing cattle, and the legal gentleman who drew the pleadings for the plaintiff ruined his case by saying that the cattle were " in " the highway, when he ought to have been careful to say that they were "passing along " it. A highway niay 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. So, too, a cul de sac may be a highway just as much as a through thorough- fare(/). 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. The public have a right to use it for all the purposes of a highway ; but, subj ect to the public easement, the light of property remains in the owner of the soil. Thus, in E. v. Pratt (g), the appellant, whilst on a highway, carry- ing a gun, had sent a dog into a covert on one side of the highway. Immediately afterwards a pheasant flew across the highway, at which he fired. Under these circumstances, the appellant was held rightly convicted of trespass on the highway under the Day Poaching Act. Lord Campbell observed : " No doubt the appellant was a trespasser when he went upon the highway as he did for the purpose of searching for game, and for that purpose only, and I think he must be considered as being in search of game there." In the absence of any express evidence to the contrary, the ordi- nary presumption is that the landowners on either side of the high- way are entitled to the soil of the road which bounds their land tisque ad medium filum vice. This presumption is doubtless founded (/) Vernon v. Vestry of St. James, Westminster (1880), 16 Ch. D. 449; 50 L. J. Ch. 81. See also Bourke v. Davis (1889), 44 Ch. D. 110; 62L. T. 34. {ff) (1855), 4 El. & B. 860; 24 L. J. M. C. 113. This case was recently approved by the Court of Appeal in Harrison v. Rutland (Duke), [1893] 1 Q. B. 142; 62 L.J. Q. B. 117. of high- way. HIGHWAYS. 511 on the assumption " that in making a road for public convenience, the owners of tho adjoining land have sacrificed a portion of their property in order to devote it to public purposes " (h). And where the presumption arises, as will readily be supposed, the rule is that the sale of an estate bounded by roads operates to pass to the pur- chaser the property in the soil of those roads usque ad medium filum vice. It must not, however, be forgotten that this presump- tion is capable of being easily rebutted, as, for example, by showing that the road was originally set out under an Inclosure Act ; and, indeed, in all districts in which the Public Health Act, 1875, is in force, the soil of the highway is vested in the local authority, but only to such a depth as is usually required for the ordinary work which the authority would need to execute in and upon the highway (/). It may, too, be added that the presumption as to the ownership of the soil of waste land adjoining a road is that it belongs to the owner of the adjoining "enclosed land, and not to the lord of the manor (k). The dedication of a highway to the public is a question of Dedication intention, such intention, however, being capable of being inferred from long user. " If the owner of the soil throws open a passage, and neither marks by any visible distinction that he means to pre- serve all his rights over it, nor excludes persons from passing through it by positive prohibition, he shall be presumed to have dedicated it to tho public. Although the passage in question was originally intended only for private convenience, the public are not now to be excluded from it, after being allowed to use it so long without any interruption " (/). But the user by the public is merely evidence of the intention to dedicate, and a single act of interrup- tion by the owner is of much more weight upon a question of intention than many acts of enjoyment (m). Of course, if the act (/*) Per Cockburn, C. J., in Leigh (/) Per Ellenborough, C. J., in v. Jack (1879), 5 Ex. D. 2G4 ; 49 King v. Lloyd (1808), 1 Camp. L. J. Ex. 222 ; and see Merrett v. 2G0. But see Wood v. Veal (1822), Bridges (1883), 47 J. P. 775; P. v. 5 B. & Aid. 454 ; Hall v. Corpora- Dover (1884), 32 W. R. 876; 49 tion of Bootle (1881), 44 L. T. 873; J. P. 86 ; P. v . Local Government 29 W. R. 862. See also Grand Board (1885), 15 Q. B. D. 70 ; 54 Junction Canal Co. v. Potty (1888), L. J. M. C. 104 ; Marshall v. 21 Q. B. D. 273 ; 57 L. J. Q. B. Taylor, [1895] 1 Ch. 641 ; 64 L. J. 572 ; Eyre v. New Forest Highway Ch. 416. Board (1892), 56 J. P. 517 ; Pobin- (i) Coverdale v. Charlton (1878), son v. Cowpcn Local Board (1893), 4 Q. B. D. 104 ; 48 L. J. Q. B. 63 L. J. Q. B. 235 ; 9 P. 858. 128. (in) Per Parke, B., in Poole v. (/) Doe d. Pring v. Pearsley Huskinson (1843), 11 M. & W. (1827), 7 B. & C. 304; 9 D. & P. 827. 908. 512 HIGHWAYS. Limited dedication. Take it as you find it. Can a lessee dedicate ; Mending the roads. of dedication be unequivocal, tho dedication may take place immediately. It is, moreover, worthy of remark that the dedication of the highway may be limited as to purpose, e.g., it may be for all purposes except that of carrying coal(«), or as in tho case of a bridge which is to be used only when the river is so swollen that persons attempting to ford it would be drowned, or of a footway which is liable to be ploughed up occasionally. But the dedication must be general to the public, and not merely to a limited part of the public, as a particular parish (o) ; such a partial dedication is simply void, and will not operate in law as a dedication to the whole 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 (jw). In a recent case (. Bathurst (1880), 49 L. J. Ch. 294 ; 42 L. T. 123. (s) Of the immense numher of cases as to the repair of highways, the following are the most recent : Tunbridge Highway Board v. Sevenoaks Highway Board (1885), 33 W. P. 306; 49 J. P. 340; Lapthorn v. Harvey (1885), 49 J. P. 709 ; Lancaster Justices v. Newton Improvement Commis- sioners (1886), 11 App. Ca. 416; 56 L. J. M. C. 17 ; Leek Improve- ment Commissioners v. Stafford- shire Justices (1888), 20 Q. B. D. 794 ; 57 L. J. M. C. 102 ; Sheppey Union v. Elmley Overseers (1886), 17 Q. B. D. 364; 55 L. J. M. C. 176; In re "Warminster Local Board (1890), 25 Q. B. D. 450; 59 L. J. Q. B. 434; Keg. v. Barker (1S90), 25 Q. B. D. 450 ; 59 L. J. M. C 105. HIGHWAYS. 513 a road was dedicated to the public, at common law the consequence followed that it became repairable by the inhabitants of the parish or district. But now, under the provisions of the General Highway Act, 1835, the inhabitants cannot be compelled to repair a road so dedicated as a highway unless certain things are done — amongst others, unless the road be made in a substantial manner and to the satisfaction of the highway authorities (t). Sometimes, too, the burden of repairing falls on a private person Private by prescription, or ratione tenurce, i.e., by reason of the tenure of P ers . on lands. But to constitute such liability it must have existed from do it. time immemorial. So, also, a man may be bound to repair ratione clausurce, i.e., as the occupier of lands adjoining the highway which he has enclosed, and over which the public had a right to go in case the road became incommodious or impassable. " Once a highway, always a highway," is a familiar common law Stopping maxim; but power is now given to justices of the peace, under U P high- certain circumstances, to divert or extinguish highways ; and it has been held in a recent case(«) that when access to a highway has become impossible, in consequence of the ways leading to it having been legally stopped up, it ceases to be a highway. "The great difficulty here," said Denman, J., in the case referred to, "seems to arise from the familiar dictum, ' once a highway, always a highway,' 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, though it has not been stopped by a 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 bave access, loses its character of a highway." In Kent v. Worthing Local Board of Health it was decided that Duties of it was the duty of the defendants to make such arrangements that jj 0ar( j works under their care should not become a nuisance to the high- way, and the plaintiff recovered damages from the defendants for injuries to his horse caused by a valve cover in the road being exposed by the ordinary wear of the traffic, and causing the horse to fall (33). But this case has now been overruled (y), and it is now Cowley v. New- {t) See per Blackburn, J., in 610; 53 L.J. M. C. 136. As to R. v. Dukmfield (1863), 4 B. & S. thenotices necessary to be given, see 158 ; 32 L. J. M. C. 235. And Reg. v. Surrey JJ., [1892] 1 Q. B. see Amesbury Guardians v. The 867; 61 L. J. M. C. 153. Justices of Wilts (1883), 10 Q. B. {.>■) (1882), 10 Q. B. D. 118 ; 52 D. 480 ; 52 L. J. M. C. 64, as to L. J. Q. B. 77 ; and see White v. the liability for the expense of re- Hiudley Local Board (1875), L. R. moving snow. 10 Q. B. 219 ; 44 L. J. Q. B. 114 ; («) Bailey v. Jamieson (1876), 1 Blackmore v. Vestry of Mile End C. P. D. 329 ; 34 L. T. 62 ; and Old Town (1882), 9 Q. B. I>. 451 ; see United Laud Co. v. Tottenham 51 L. J. Q. B. 496. Boardof Health (1884), 13 Q. B.D. (y) See Cowley v. New.narket 8. — C. L L 514 HIGHWAYS. market Local Board. Dedica- tion. Indict- ment for obstruc- tion. What's the highway ? clearly established that a local hoard, being the highway authority of the district, are not liable for damages caused to a person in con- sequence of the highway being out of repair, when such non-repair is a mere nonfeasance. A court which was not a thoroughfare had, for seventy or eighty years, been, at all hours, open to the public, and had been paved, lighted, and cleansed by the parish vestry, and the owners of the soil were not shown to have, during that time, exercised any right of ownership over the soil of the court. It was decided by Vice- Chancellor Malins that the court had been dedicated to the public so as to bring it under the vestry according to the Local Manage- ment Act of the Metropolis (2). Upon the trial of an indictment for obstructing a highway, the defendant was acquitted. It was decided that a new trial on the ground of misreception of evidence, misdirection, and that the verdict was against evidence, could not be granted (a). As to in- dictments for non-repair of highways, reference should be made to the recent cases of Reg. v. Lordsmere Inhabitants (18SG), 54 L. T. 766; 16 Cox, C. 0. 65; Eeg. v. Southampton (1887), 19 Q. B. D. 590 ; 56 L. J. M. C. 112 ; Eeg. v. Poole (Mayor) (1887), 19 Q. B. D. 602, 683; 56 L. J. M. C. 131; Eeg. v. Wakefield (Mayor) (1888), 20 Q. B. D. 810; 57 L. J. M. C. 52. The defendant left an agricultural roller between the hedge and the metalled part of the road, having removed it from a field on the opposite side of the road for his own convenience. A pony drawing a carriage in which plaintiff's wife was riding, shied at the roller, upset the carriage, and the plaintiff's wife was killed. It was decided that the roller was an obstruction to the highway ; that it was an unreasonable user of the highway by the defendant, and that the plaintiff was entitled to recover damages for the death of his wife under Lord Campbell's Act (b). The right of the public to use a highway extends to the whole road and not merely to the part used as via trita. Therefore ditches fifteen inches wide and ten inches deep, cut completely across the strips of grass land at the sides of roads, so as to amount to a danger Local Board, [1892] A. C. 345 ; 62 L. J. Q. B. 65 ; and Sydney Muni- cipal Council v. Bourke, [1895] A. C. 433 ; 11 T. L. P. 403. (z) Vernon v. Vestry of St. James, Westminster, ubi sup. (a) Beg. v. Duncan (1881), 7 Q. B. D. 198 ; 50 L. J. M. C. 95. The most recent cases of obstruc- tion of highways are : Horner v. Cadman (1886), 55 L. J. M. C. 110 ; 54 L. T. 421 ; Hill v. Somer- set (1887), 51 J. P. 742 ; Back v. Holmes (1887), 57 L. J. M. C. 37 ; 56 L. T. 713 ; Eeg. v. Justices of London (1890), 25 Q. B. D. 357 ; 59 L. J. M. C. 146. (b) Wilkins v. Day (1883), 12 Q. B. D. 110 ; 49 L. T. 399 ; and see Gully v. Smith (1883), 12 Q. B. D. 121 ; 53 L. J. M. C. 35. HIGHWAYS. 515 to persons walking along the strips, amount to a nuisance and obstruction (c). The promoters of an intended road by deed declared that the road Keserved should not only be enjoyed by them for their individual purposes, tolls - but " should be open to the use of the public at large for all manner of purposes in all respects as a common turnpike road" but subject to the payment of tolls by the persons using it. It was decided that this was not a dedication of the road to the public, and that the road was not a highway repairable by the inhabitants at large under sect. 150 of the Public Health Act, 1875. It seems that, without legislative authority, an individual cannot dedicate a road to the public if he reserves a right to tolls for the user (d). Persons using a traction engine and trucks on a highway may be Traction indicted as a nuisance, e.g., if they create a substantial obstruction en S me ' and occasion delay and inconvenience to the public substantially greater than such as would arise from the use of carts and horses (e). The reader would do well to refer to the following cases : — -Finch Other v. G. W. Ey. Co. (1879), 5 Ex. D. 254; 41 L. T. 731; Mayor of cases - London v. Eiggs (1880), 49 L. J. Ch. 297; TiUett v. Ward (1882), 10 Q. B. D. 17; 52 L. J. Q. B. 61 ; Normanton Gas Co. v. Pope and Pearson (1S83), 52 L. J. Q. B. 629 ; 32 W. E. 134; The Queen v. Justices of Essex (1883), 11 Q. B. D. 704 ; 49 L. T. 394 ; Parkyns v. Preist (1881), 7 Q. B. D. 313; 50 L. J. M. C. 148 ; Corporation of Bochdale v. Justices of Lancashire (1883), 8 App. Ca. 494; 53 L. J. M. C. 5 ; Justices of West Eiding of York v. The Queen (1883), 8 App. Cas. 781; 53 L. J. M. C. 41; WaUington v. Hos- kins (1880), 6 Q. B. D. 206; 50 L. J. M. C. 19; Pickering Lythe East Highway Board v. Barry (1881), 8 Q. B. D. 59; 51 L. J. M. C. 17 ; The Queen v. Ellis (1882), 8 Q. B. D. 466 ; Alresford Rural Sanitary Authority v. Scott (1881), 7 Q. B. D. 210; 50 L. J. M. C. 103; Eamsden v. Yeates (1881), 6 Q. B. D. 583; 50 L. J. M. C. 135 ; Oxenhope District Local Board v. Bradford (Mayor) (1882), 47 L. T. 344; 31 W. E. 322; Dyson v. Greetland Local Board (1884), 13 Q. B. D. 946; 53 L. J. M. C. 106; Burton v. Salford Corporation (1883), 11 Q. B. D. 286; 52 L. J. Q. B. 668; followed in Graham v. Newcastle-upon-Tyne (Mayor), [1893] 1 Q. B. 643 ; 62 L. J. Q. B. 315 ; Newton Improvement Commissioners v. Justices of (' Nicol v. Beaumont (1883), 53 to obstructions by stage coaches, L. J. Ch. 853 ; 50 L. T. 112. see R. v. Cross (1812), 3 Camp. 224 ; (d) Auflterberry v. Oldham Cor- as to the negligent management of poration (1885), 29 Ch. D. 750 ; 55 a traction engine upon a highway, L. J. Ch. 633. sec Smith v. Bailey, [1891] 2 Q. B. (e) Reg. v. Chittenden (1885), 49 403 ; GO L. J. Q. B. 779. J. P. 503; 15 Cox. C. C. 720; as L 1.2 516 CONTRACTS MADE AND TOUTS COMMITTED ABROAD. Lancashire (1884), 13 Q. B. D. 623; 48 J. P. 406; affirmed 54 L. J. M. C. 1 ; Over-Darwen (Mayor) v. Lancaster (Justices) (1884), 15 Q. B. D. 20; 54 L. J. M. C. 51 ; Middlesbrough Over- seers V.Yorkshire (N. B.) Justices (1884), 12 Q. B. D. 239; 32 W. B. 671 ; Beg. v. Cheshire Justices (1884), 50 L. T. 483 ; 48 J. P. 262 ; Illingworth v. Bulmer East Highway Board (1884), 53 L. J. M. C. 60 ; 32 W. B. 450. By 47 & 48 Vict. c. 52, certain Turnpike Acts are continued and certain others repealed. Loughborough Highway Board v. Curzon (1886), 17 Q. B. D. 344; 55 L. J. M. C. 122; Ellis v. Hulse (1889), 23 Q. B. D. 24 ; 58 L. J. M. 0. 91. Contracts made and Torts committed Abroad, &c. [147.] FABRIGAS v. MOSTYN. (1775) [Cowp. 161.] In 1770 the Governor of Minorca was a gentleman named Mostyn, who apparently was of opinion that he was entitled to play the part of an absolute and irrespon- sible despot on his small stage. One of his subjects, how- ever, a Mr. Fabrigas, did not coincide with him in this view, and he rendered himself so obnoxious that the governor, after keeping him imprisoned for a week, ban- ished 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 be 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 3,000/. damages (/). ( f) See Musgrave v. Pulido P. C. 20, as to actions against the (1879), 5 App. Cas. 102 ; 49 L. J. Governor of a British colony. CONTRACTS MADE AND TORTS COMMITTED ABROAD. 517 Actions were formerly divided into local and transitory : local, Local and such as could be tried only in the county in which the cause of tran3ltor y- 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 leading case has lost much of its old importance. The rides of procedure under the Judicature Acts with regard to local venue (Order XXXYI. r. 1) did not, however, confer any new juris- diction. On this subject the recent decision of the House of Lords in the case of British South Africa Co. v. Companhia de Mozam- bique (g) should be consulted. It was there held (reversing the decision of the Court of Appeal) that the Supreme Court of Judica- ture has no jurisdiction to entertain an action to recover damages for a trespass to land situate abroad. The learned judgment delivered by Lord Herschell is well worthy of careful study. The leading case maybe still, however, taken to " lead" as to the Contracts law relating to contracts entered into abroad and sought to be enforced n } ade 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 (ft). For example, if by the French law(/) the property in a bill of exchange payable to order is not passed without a special indorsement, the holder of a bill drawn in France and there in- dorsed to him in blank, cannot sue on it here, although in the case of an English bill a blank indorsement would have sufficed. But this rule admits of an exception in the case where the parties in- tended the contract to be executed in a country other than that in which it was entered into. Where a contract is entered into between parties residing under different systems of law, the Court is not bound as a matter of law to apply either the lex loci solutionis or the lex loci contractus. The question is what law the parties intended to govern the contract, as to which both these circum- stances are, of course, important (k). Contracts which are illegal according to English law, though legal according to the law of the country where made, cannot be enforced in England (/). " When (g) [1893] A. C. 602 ; G3 L. J. Bradlaugh v. De Rin (1870), L. R. Q. B. 70. " 5 C. P. 473 ; 39 L. J. C. P. 2.54 ; (h) Jacobs v. Credit Lyonnais and see Home v. Rouquotte (1878), (1884), 12 Q. B. D. 589 ; 53 L. J. 3 Q. B. D. 514 ; 39 L. T. 219 ; and Q. B. 156 ; Lee v. Abdy (1886), 17 Alcock v. Smith, [1892] 1 Ch. 238 ; Q. B. D. 309 ; 55 L. T. 297 ; E.c 61 L. J. Ch. 161. partt Dever (1887), 18 Q. B. D. (/.) Hamlyn v. Talieker Distil- 660 ; 56 L. J. Q. B. 552. lery, [1894] A. C. 202 ; 71 L. T. I . (i) Trimbey v. Vignier (1834), I {I) Santos v. Olidge (1860), 8 Bing. N. 0. 151 ; 6 C. & P. 25 ; C. B. N. S. 861 ; 29 L. J. C. P. 348. 518 CONTRACTS MADE AND TORTS COMMITTED ABROAD. Powers of attorney. Marriage liabilities. a Court of justice in one country is called on to enforce a contract entered into in another country, the question is not only whether or not the contract is valid according to the law of the country in which it is entered into, hut whether or not it is consistent 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 ho called on to enforce it" (hi). Thus, the rule that a contract in restraint of trade is void, unless confined within what is reasonably necessary for the protection of the contractee, is a rule applicable to contracts made abroad and between aliens (??). And although a contract is to be expounded according to the law of the place where made, proceedings to enforce it are governed by the law of the place where the action is brought — the lex loci fori. For example, if an agreement be one of that class which the 4th section of the Statute of Frauds requires to be in writing, a verbal agreement made in a foreign country where it would have been perfectly valid cannot be enforced in England (o). 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 Limitations (/>). The title to certificates of American railroad shares, those certi- ficates being in England, and the title to them depending on deal- ings in England, must be decided by English law; but the conse- quences of the title to the certificates, with regard to the title to the shares, must be decided by American law (q). So, where a power of attorney is executed in a foreign country in the language of that country, the intention of the writer is to be ascertained by evidence of competent translators and experts, including, if necessary, lawyers of the country, as to the meaning of the language used; and if, according to such evidence, the intention appears to be that the authority shall be acted upon in other countries, the extent of the authority in any country in which the authority is acted upon must be determined by the law of that country (r). By the law of Jersey, a husband is still liable for the ante-nuptial debts of his wife. In England, if the marriage has taken place since July 30, 1874, he is liable only to the extent of certain svjeci- (»>) Per Turner, L. J., in Hope v. Hope (1857), 8 D. M. & G. 731 ; 26 L. J. Ch. 417. (>/) Rousillon v. Pousillon (1880), 14 Ch. D. 351 ; 49 L. J. Ch. 338. (o) Leroux v. Brown (1852), 12 C. B. 801; 22 L. J. C. P. 1. (;/) British Linen Co. v. Drum- mond (1830), 10 B. & C. 903; Alliance Bank of Simla v. Carey (1880), 5 C. P. D. 429 ; 49 L. J. C. P. 781. (q) Colonial Bank v. Cady (1890), 15 App. Cas. 267 ; 60 L. J. Ch. 131. (r) Chatenay v. Brazilian Tele- graph Co., [1891] 1 Q. B. 79; CO L. J. Q. B. 295. CONTRACTS MADE AND TORTS COMMITTED ABROAD. 519 fied assets. A Jersey girl contracted debts in Jersey, and then came to 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 having taken place in England, the Jersey law did not apply (s). It may be 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 have 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. The Courts of this country will not recognize a state of disability French which is unknown to our laws. They will not, for instance, take "proch- notice of a personal disqualification caused by a change of status, sue here. not arising from the law of nature, but from the principles of the customary or positive law of a foreign country (t). A union formed between a man and a woman in a foreign country, Marriage, although it may there bear the name of marriage, and the parties to it may there be designated husband and wife, is not a valid marriage according to the law of England unless it be formed on the same basis as marriages throughout Christendom, and be in its essence ' ' the voluntary union for life of one man and one woman, to the exclusion of all others " («). The validity of a marriage contracted in England, though the domicile of one of the parties may be foreign, is decided according to the law of England (x) : but it has been decided that the question of divorce is not an incident of the marriage contract to be governed by the lex loci contractus. The power of dissolving the marriage tie Divorce, is an incident of status to be regulated by the law of the domicile of the parties — that is, of the husband, for immediately upon marriage the Wife's domicile becomes that of her husband. Thus (//) an English Court will recognize as valid the decree of a Scotch Court dissolving the marriage of a domiciled Scotchman and an Englishwoman, although the marriage was solemnized in England, Is) De Greuchy v. Wills (1879), the tribe, among whom polygamy 4 C. P. D. 362 ; 48 L. J. C. P. 726. is allowed. (f) Worms v. De Valdor (1880), (x) Sottomayer v. De Barros 49 L. J. Ch. 201 ; 41 L. T. 791. (1879), 5 P. D. 94 ; 49 L. J. P. 1 ; (u) In re Bethell, Bethell v. In re Cooke's Trusts (1887), 56 Hildyard (1888), 38 Ch. D. 220; L. J. Ch. G37 ; 56 L. T. 737. 57 L. J. Ch. 487, a case where (y) Harvey v. Farnie (1882), 8 an Englishman went through the App. Cas. 43; 52 L. J. P. 33. ceremony of marriage with a woman And see Green v. Green, [1893] of the Baralong tribe in Bechuana- I'. 89; 62 L. J. P. 112. land according to the customs of 520 CONTRACTS MADE AND TOUTS COMMITTED ABROAD. Torts committed abroad. Foreign law, how proved. and was dissolved upon a ground for which by English law no divorce could have been granted. A party to a contract made and to be performed in England is not discharged from liability under such contract by a discharge in bankruptcy or liquidation under the law of a foreign country in which he is domiciled (2). 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 country where the tort was committed. The case of Phillips v. Eyre (a) shows how necessary it is that both of these conditions should be fulfilled. It was an action for assault and false im- prisonment against the ex-governor of Jamaica, the trespass com- plained of having been committed during a rebellion in that island. The defendant successfully relied on an Act of Indemnity which the Jamacia Legislature had passed, and said that legislation, though ex 1 oost facto, cured the wrongfulness of his acts, and prevented the plaintiff from recovering. The case of The Halley (6) is another authority on the subject. By the negligence of a pilot, compul- sorily 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 circumstances, no action lay against her in England. " It is," the Court said, " in their lordships' opinion, alike contrary to principle and to autho- rity to hold that an English Covu - t 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 waste committed by a tenant in tail is not regarded as a tort, but as a breach of an obligation in the nature of an implied con- tract (c). But, on the other hand, it is no defence to an action for a tort committed in a foreign country that by the laws of that country no action lies till the defendant has been dealt with criminally, for that is a mere matter of procedure (d). The Courts do not take judicial notice of the laws of foreign states. Such laws are proved by the oral evidence of persons having a practical acquaintance with them, and whether any (2) Gibbs v. Societe des Metaux (1890), 25 Q. B. D. 399 ; 59 L. J. Q. B. 510. (a) (1870), L. E. 6Q.B.1; 40 L. J. Q. B. 28. {b) (1868), L. R. 2 P. C. 193; 37 L. J. Adm. 33. (c) Batthyany v. Walford (1887), 36 Ch. D. 269; 56 L. J. Ch. 881. (d) Scott v. Seymour (1862), 1 H. & C. 219; 32 E. J. Ex. 61. CONTRACTS MADE AND T0R1S COMMITTED ABROAD. 521 particular person tendered as a witness is duly competent is a question for the Court. In a case (e) in which the question was whether a London hotel-keeper, but a 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 London 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." If witnesses called to prove foreign law refer to any passages in the code of their country, as containing the law applicable to the case, the Court is at liberty to look at those passages and consider what is their proper meaning (/). The judgment of a foreign Court in any proceeding in personam, if final and conclusive where made, and if not plainly contrary to natural justice, is () The Gaetano and Maria P. C. 10. (1882), 7 P. D. 1, 137 ; 51 L. J. P. (/) Concha v. Murrieta (1889), 67 ; Chartered Mercantile Bank of 40 Ch. D. 543 ; 00 L. T. 798. India v. Netherlands India Steam (g) Richardo v. Garcias (1845), Navigation Co. (1883), 10 Q. B. D. 12 CI. & Fin. 368 ; Grant v. Easton 521 ; 52 L. J. Q. B. 220 ; In re (1883), 13 Q. B. D. 302 ; 53 L. J. Missouri Stram.-hip Co. fiss'.i . 12 Q. B. 68; Nouvion v. Freeman Ch. D. 321; 58 L. J. Ch. 721; (1889), 15 App. Ca. 1; 59 L. J. The August, [1891] P. 328; 00 Ch. 337. L.J. P. 57 ; The [ndustrie, [1894] (A) Vadala v. Lawes (1890), 25 P. 58 ; 63 L. J. P. 84. the fla£ 522 CONTRACTS MADE AND TOUTS COMMITTED ABROAD. Unsealed lease. Negli- gence. Colonial law. Proof of Persian law. dominions, simply becauso the plaintiff and defendant are in this country (/»'). By Scotch law an instrument under seal is not necessary for the conveyance of a sporting right, and therefore the stipulations of an unsealed lease made between Englishmen in England of a sporting right over land in Scotland may be enforced by action in tho EngHsh Courts, as the provision of the law of England that an instrument under seal is necessary for the conveyance of a right to an incorporeal hereditament is not part of the lex fori {I). In an action in personam, brought by the owners of a British vessel against the owners of a Spanish vessel to recover damages caused to the British vessel by collision with the Spanish vessel on the high seas, the defendants pleaded that they were Spanish subjects, and that if there was any negligence on the part of those in charge of the Spanish vessel, it was negligence for which the master and crew alone, and not the defendants, were liable accord- ing to the law of Spain. It was decided that such a defence was bad upon demurrer (m). In Bateman v. Service it was held that the "Western Australian Joint Stock Companies Ordinance Act, 1858, does not apply to foreign corporations or to companies incorporated out of Western Australia, and properly and lawfully carrying on business as such. Consequently, a limited company incorporated elsewhere, not having complied with its provisions, can nevertheless carry on business and make contracts in Western Australia by its agent without its members being liable individually for its debts and engagements, and that a company duly registered and incorporated in Victoria, could not be again registered as a company in Western Australia (n). D. M. K., a Persian subject, was by a decree of a Persian Court declared entitled to certain property in this country. The decree, though founded partly upon a will, made no mention of it, and tho Court which had custody of the will refused to give a copy of it. The Court of Probate granted letters of administration Hmited to the property mentioned in a duly authenticated copy of the decree. The Court allowed the law applicable to the case to be proved by a Persian ambassador (o). (k) In re Hawthorne, Graham v. Massey (1883), 23 Ch. D. 743 ; 52 L. J. Ch. 750. {I) Adams v. Clutterbuck (1883), 10 Q. B. D. 403 ; 52 L. J. Q. B. 607. (»j) The Leon (1881), G P. D. 148; 50 L. J. P. 59. («) Bateman v. Service (1881), 6 App. Ca. 386 ; Bulkeley v. Schutz (1871), L. R. 3 P. C. 764; 8 Moore, P. C. C. N. S. 170. (u) In the Goods of Dost Aly Khan (1880), 6 P. D. 6 ; 49 L. J. P. 78. CONTRACTS MADE AND TORTS COMMITTED ABROAD. 523 A bequest of personalty in an English will to the children of a Legiti- foreigner must bo construed to mean to his legitimate children, and vaa,Q! ^' by international law as recognised in this country, those children are legitimate whose legitimacy is established by the law of their father's domicil (j>). The domicil of a person is that place or country in which his habita- Domicil. tion is fixed without any present intention of removing therefrom [q). The original domicil of a legitimate child is that of its father at the time of its birth, but an illegitimate child takes the domicil of its mother (r), and throughout infancy the child's domicil generally, but not necessarily (s), follows that of its parent through any changes that may occur. The domicil of a child who has never been of sound mind since attaining majority continues to follow the changes of its father's domicil ; the incapacity of lunacy is in this case a mere prolongation of the incapacity of minority. The domicil of a wife is that of her husband. A person may change his domicil by establishing in a new country a permanent residence ; the actual duration of the residence is only important as evidence of intention, which must be quatenus in illo exuere patriam(t). It should be observed that domicil is established by conduct, and not by assertion (»). A change of domicil must be a residence sine an imo revertendi. A temporary residence for the purposes of health, travel, or business does not change the domicil. Eveiy presump- tion is to be made in favour of the original domicil, and no change can occur without an actual residence in a new country, and a clear intention of abandoning the old (x). The following recent cases on domicil may be referred to :— Abd-ul-Messih v. Farra (1888), 13 App. Ca. 431 ; 57 L. J. P. C. 88 ; In re Tootall's Trusts (1882), 23 Ch. D. 532 ; 52 L. J. Ch. 664 ; Bloxam v. Favre (1S84), 9 P. D. 130 ; 53 L. J. P. 26 ; Ex parte Cunningham (1884), 13 Q. B. D. 418; 53 L. J. Ch. 1067; Bradford v. Young (1885), 29 Ch. D. 617; 53 L. T. 407; In re Patience (1885), 29 Ch. D. 976; 54 L. J. Ch. 897; In re Macreight (1885), 30 Ch. D. 165; 55 L. J. Ch. 28; In re Marrett, Chalmers v. Wingfield(lSS7), 36 Ch. D. 400 ; 57 L. T. 896; (p) In re Andros, Andros v. (t) Per Lord Cramvorth in Moor- Andros (18S3), 24 Ch. D. 637 ; 52 house v. Lord (1863), 10 H. L. L. J. Ch. 793 ; and see In re Grey, Ca. 272. Grey v. Stamford, [1892] 3 Ch. 88 ; (>t) McMullen v. Wadsworth 61 L. J. Ch. 622. (1889), 14 App. Ca. 631 ; 59 L. J. (?) Craigiiish v. Hewitt, [1892] P. C. 7. 3 Ch. 180; 07 L. T. 689. {x) Lauderdale Peerage case (r) UrquharU\Biitterneld(1887), (1885), 10 App. Ca. 692. For a 37 Ch. D. 357 ; 57 L. J. Ch. 521. fulldiscu ion of the law of domicil, (*) See In re Beaumont, [1893] see W iterna- 3 I h. 190; <;2 L. J. Ch. 923. ti >nal Law, 3rd ed., p. 284, and Dicoy on thi Law of D imicil. 521 CONTRACTS MADE AND TORTS COMMITTED ABROAD. Appear- ance without protest. Foreign personal assets. Crime. In re Grove, Vaucher v. Solicitor to the Treasury (1888), 40 Ch. D. 216; 58 L. J. Ch. 57 ; Turner v. Thompson (1888), 13 P. D. 37 ; 57 L. J. P. 40; D'Etchegoyen v. D'Etchegoyen (1888), 13 P. D. 132 ; 57 L. J. P. 101 ; In re Hernando, Hernando v. Sawtell (1884), 27 Ch. D. 284 ; 53 L. J. Ch. 8G5 ; Hurley v. Hurley (1892), 67 L. T. 384; Goulder v. Goulder, [1892] P. 240; 61 L. J. P. 117. A testator, who was domiciled and resident in Scotland, and whose will was in Scotch form, appointed six executors, two of whom were resident in England ; another, being a Scotch member of Parliament, resided in England during the session ; and the other three resided in Scotland. The value of the estate was about £500,000, and it was all in Scotland with the exception of about £25,000, which was in England. The executors proved the will in Scotland, and constituted themselves legal personal representatives in England, and removed all the English personalty to Scotland. An action was then commenced in England by a plaintiff resident there, who was entitled to a share of a legacy, and also of the residue, for the administration of the estate. Three of the trustees were served in England and the other three in Scotland, and they entered an appearance without any protest, and took no steps to discharge the order. No action was pending in Scotland for the administration of the estate there. It was decided that the Court at the trial has no discretion, and that the plaintiff was entitled to the ordinary decree for the administration of the whole estate. But if the executors had appeared conditionally, and applied to discharge the order for service in Scotland, the Court would have considered the question as to whether it was convenient to have the estate administered in England (y). Foreign personal assets are governed by the lex domicilii of the deceased owner for the purpose of succession and enjoyment. For the purpose of legal representation, of collection, and of adminis- tration as distinguished from distribution among the successors, they are governed by the lex loci (z). In the recent case of Duncan v. Lawson (a), it was held that leaseholds in England, belonging to a domiciled Scotchman, devolve, in case of his intestacy, upon the persons entitled according to the English Statute of Distribu- tions. All crime is local. The jurisdiction over crime belongs to the country where the crime is committed, and except over her own (?/) In re Orr-Ewing, Orr-Ewing v. Orr-Ewing (1883), 9 App. Ca. 34 ; 53 L. J. Ch. 435 ; and see 10 App. Ca. 453; 53 L. T. 826. (-) Blackwood v. Reg. (1882), 8 App. Ca. 82 ; 52 L. J. P. C. 10. See In re Trufort, Trafford v. Blanc (1887), 36 Ch. D. 600 ; 57 L. J. Ch. 135. (a) (1889), 41 Ch. D. 394; 58 L. J. Ch. 502. PRESUMPTION OF DEATH. 525 subjects, her Majesty and the Imperial Legislature have no power ■whatever (b). The following cases may also be referred to : — Greer v. Poole Other (1880), 5 Q. B. D. 272, how far foreign law is applicable to an cascs - English policy of marine insurance effected upon goods shipped in a foreign ship; In re Marseilles, &c. Eailway Co. (1885), 30 Ch. D. 598 ; 55 L. J. Ch. 116, bills of exchange were drawn in France by a domiciled Frenchman, in the French language, in English form, on an English company, who duly accepted them. The drawer having indorsed the bills, and sent them to an Englishman in England, it was held that the acceptor could not dispute the nego- tiability of the bills by reason of the indorsements being invalid according to French law; In re Matheson (1884), 27 Ch. D. 225; 51 L. T. Ill, jurisdiction to wind up a foreign company with branch office, assets, and liabilities in England ; In re Kloebe, Kannreuther v. Geiselbrecht (1884), 28 Ch. D. 175; 54 L. J. Ch. 297, in the administration of the English estate of a deceased domiciled abroad, foreign creditors are entitled to dividends " pari passu " with English creditors. Presumption of Death after Seven Years Absence. NEPEAN v. DOE. (1837) [148.] [2 M. & W. 894 ; 5 B. & Ad. 86.] 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 he dead, unless the circumstances of the case are such as to account for his not heing 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, occasionally arise where Case of whole families have perished by the same calamity. One well- sev ? r , a J . pBnsiuu&r known case on the subject is Wing v. Angravc (c), where a bus- by same band, wife, and children were all washed away by the same wave, calamity. (b) See Maoleod v. Att.-Gen., (r) (1RG0), 8 17. L. 0. 183; 30 [1891] A. (J. 455; GO L. J. P. C. L. J. Ch. 65 And see In re Alston , 55. [1892] P. 142; 61 J,. .J. P. 92. 526 PRESUMPTION OF DEATH. Roman law. No pre- sumption in English law. Meaning of " not being heard of." Case of Pruden- tial Assur- ance Co. v Edmonds. No pre- sumption as to time of death. 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 age of puberty, but if he was over that age that the father died first; the principle being that the father woidd probably bo 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 we call on a claimant, by survivorship, to give affirmative proof of what he asserts. In Elliott v. Smith (d), a testator left legacies to three persons, and if any of them died in the testator's lifetime, his share was to go to the others. One of the legatees and the testator died at the same instant. It was held that the legacy of the legatee so dying became part of the residue. The meaning of "not being heard of for seven years" was much discussed in the case of the Prudential Assurance Company v. Edmonds (e) ; and although there was considerable difference of opinion on the special circumstances of that case, it may be taken as clear that there is no absolute and positive rule of law that a mere physical hearing would put an end to the presumption of death. "Not biing heard of" means this: that enquiry has been made, and that no member of the family has heard anything about the missing man which might raise a reasonable doubt in their minds whether he must have been no more. This, however, is not a complete and comprehensive explanation, because, even if a statement creating a reasonable doubt has been made to the family, and the foundation of such statement is subsequently disproved, then of course it will go for nothing, and the presumption of death will, in the absence of further evidence, arise. Thus, in the case last mentioned, a member of the family stated that on one occasion during the seven years, she saw a man whom she believed to be the missing one, but before she could speak to him he was lost in the passing crowd. This circumstance she at once communicated to her relatives ; but it was held that the pre- sumption of death would not thereby be rebutted, unless the jury found as a fact that she was not mistaken in her identification. A person will not be presumed to be dead from the fact of his not having been heard of for seven years, if the other circumstances of the case render it probable that he would not be heard of though alive (/). The question at what time within the period of seven years the lost man died is not a matter of presumption, but of evidence, and (d) (1882), 22 Ch. D. 23G ; 52 L. J. Ch. 222. (e) (1877), 2 App. Cas. 437. (f) Watson v. England (1844), 14 Sim. 28 ; 8 Jur. 1062 ; Bowden v. Henderson (1854), 2 Sin. & G. 360. PRESUMPTION OF DEATH. o2"i the onus of proving that the death took place at any particular time lies upon the person who claims a right to the establishment of which that fact is essential. Thus, in a well-known case(>) Low v. Bouverie, [1891] 3 (1885), 10 App. Oas. 219 ; 55 L. J. Ch. 82 ; 60 L. J. Ch. 594. 540 ESTOPPEL. Hartcup V, BeU. In re Horton. Reg. v. Eardley. Gandy v. Gandy. Carlton v. Bowcock. upon a cause of action by way of counter-claim, upon which he has obtained a verdict for an amount beyond the jurisdiction of the County Court, and judgment has been entered for the defendant, but no relief has been given in respect of the balance in excess of the plaintiff's claim, the defendant is not estopped from afterwards bringing an action in the High Court upon the same cause of action (c). The estoppel which enables a landlord who is mortgagor without the legal estate to sue for rent is mutual, and renders him. liable on the covenants in the lease (d). A marriage settlement contained a recital that B. was " seised of or otherwise well entitled to" certain messuages, the whole deed showing the meaning to be that B. was entitled in one shape or other to the fee simple of all the property therein conveyed. The Court held this a sufficient estoppel as to the part of the property in which at the date of the settlement B. had no interest whatever, but to which her interest accrued subsequently (e). Where a divisional Court has decided against an applicant on one application, a divisional Court consisting of other judges will not overrule or review that decision on a second application by him, which, though technically different from the first, raises the iden- tical point again (/). Where a litigant has obtained the decision of the Court on the construction of a deed in his favour, he cannot ask the Court in a subsequent action to put an opposite construction on the same deed (assenger as aforesaid, the value and nature of such article or articles of property shall have been declared by the person or persons sending or delivering the same, and such increased charge as hereinafter mentioned, or an engagement to pay the same, be accepted by the person receiving such parcel or package. 2. "When any parcel or package containing any of the APPENDIX A. 549 articles above specified shall be so delivered, and its value and contents declared as aforesaid, and such value shall exceed the sum of ten pounds, it shall be lawful for such mail contractors, stage-coach proprietors, and other common car- riers, to demand and receive an increased rate of charge to be notified by some notice affixed in legible characters in some public and conspicuous part of the office, warehouse, or other receiving house where such parcels or packages are received by them for the purpose of conveyance, stating the increased rates of charge required to be paid over and above the ordi- nary rate of carriage as a compensation for the greater risk and care to be taken for the safe conveyance of such valuable articles ; and all persons sending or delivering parcels or packages containing such valuable articles as aforesaid at such office shall be bound by such notice without further proof of the same having come to their knowledge. 4. No public notice or declaration heretofore made, or here- after to be made, shall be deemed or construed to limit or in anywise affect the liability at common law of any such mail contractors, stage-coach proprietors, or other public common carriers as aforesaid, for or in respect of any articles or goods to be carried and conveyed by them ; but all and every such mail contractors, stage-coach proprietors, and other common carriers as aforesaid, shall ... be liable, as at the common law, to answer for the loss of or any injury to any articles and goods in respect whereof they may not be entitled to the benefit of this Act, any public notice or declaration by them made and given contrary thereto, or in anywise limiting such liability, notwithstanding. 6. Nothing in this Act contained shall extend, or be con- strued, to annul, or in anywise affect, any special contract between such mail contractor, stage-coach proprietor, or com- mon carrier, and any other parties for the conveyance of goods and merchandises. 8. Nothing in this Act shall be deemed to protect any mail contractor, stage-coach proprietor, or other common carrier for hire, from liability to answer for loss or injury to any goods or articles whatsoever, arising from the felonious acts of any coachman, guard, book-keeper, porter, or other ser- vant in his or their employ, nor to protect any such coach- man, guard, book-keeper, or other servant from liability for 550 APPENDIX A. any loss or injury occasioned by his or their own personal neglect or misconduct. 2 & 3 Will. IV. c. 71 (1832). An Act for shortening the Time of Prescription in certain cases. Whereas the expression ' ' time immemorial, or time whereof the memory of man runneth not to the contrary," is now by the law of England in many cases considered to include and denote the whole period of time from the reign of King Richard the First, whereby the title to matters that have been long enjoyed is sometimes defeated by showing the commencement of such enjoyment, which is in many cases productive of inconveni- ence and injustice; for remedy thereof be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parbament assembled, and by the authority of the same, that no claim which may be lawfully made at the common law, by custom, prescription, or grant, to any right of common or other profit or benefit to be taken and enjoyed from or upon any land of our Sovereign Lord the King, his heirs or successors, or any land being parcel of the Duchy of Lancaster or of the Duchy of Cornwall, or of any ecclesias- tical or lay person, or body corporate, except such matters and things as are herein specially provided for, and except tithes, rent, and services, shall, where such right, profit, or benefit shall have been actually taken and enjoyed by any person claiming right thereto without interruption for the full period of thirty years, be defeated or destroyed by shewing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of thirty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated ; and when such right, profit, or benefit shall have been so taken and enjoyed as aforesaid for the full period of sixty years, the right thereto shall be deemed absolute and indefeasible, unless it shall APPENDIX A. 551 appear that the same was taken and enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing. 2. And be it further enacted, that no claim which may be lawfully made at the common law, by custom, prescription, or grant, to any way or other easement, or to any watercourse, or the use of any water, to be enjoyed or derived upon, over, or from any land or water of our said Lord the King, his heirs or successors, or being parcel of the Duchy of Lancaster or of the Duchy of Cornwall, or being the property of any eccle- siastical or lay person, or body corporate, when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto with- out interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated ; and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed abso- lute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing. 3. And be it further enacted, that when the access and use of light to and for any dwelling-house, workshop, or other building shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing. 4. And be it further enacted, that each of the respective periods of years hereinbefore mentioned shall be deemed and taken to be the period next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question, and that no act or other matter shall be deemed to bo an interruption, within the meaning of this statute, unless the same shall have been or shall be submitted to or accpuiesced in for one year after 552 APPENDIX A. the party interrupted shall have had or shall have notice thereof, and of the person making or authorising the same to be made. 6. And be it further enacted, that in the several cases men- tioned in and provided for by this Act, no presumption shall be allowed or made in favour or support of any claim, upon proof of the exercise or enjoyment of the right or matter claimed for any less period of time or number of years than for such period or number mentioned in this Act as may be applicable to the case and to the nature of the claim. 7. Provided also, that the time during which any person otherwise capable of resisting any claim to any of the matters before-mentioned shall have been or shall be an infant, idiot, non compos mentis, feme covert, or tenant for life, or during which any action or suit shall have been pending, and which shall have been diligently prosecuted, until abated by the death of any party or parties thereto, shall be excluded in the computation of the periods hereinbefore mentioned, except only in cases where the right or claim is hereby declared to be absolute and indefeasible. 8. Provided always, and be it further enacted, that when any land or water upon, over, or from which any such way or other convenient watercourse or use of water shall have been or shall be enjoyed or derived hath been or shall be held under or by virtue of any term of life, or any term of years exceeding three years from the granting thereof, the time of the enjoyment of any such way or other matter as herein last before mentioned, during the continuance of such term, shall be excluded in the computation of the said period of forty years, in case the claim shall within three years next after the end or sooner determination of such term be resisted by any person entitled to any reversion expectant on the determina- tion thereof. APPENDIX A. 553 17 & 18 Yict. c. 31 (1854). An Act for the better Regulation of the Traffic on Railways and Canals. 2. Every railway company, canal company, and railway and canal company shall, according to their respective powers, afford all reasonable facilities for the receiving and forward- ing and delivering of traffic upon and from the several railways and canals belonging to or worked by such companies respec- tively, and for the return of carriages, trucks, boats, and other vehicles, and no such company shall make or give any undue or unreasonable preference or advantage to or in favour of any particular person or company, or any particular descrip- tion of traffic in any respect whatsoever, nor shall any such company subject any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever ; $'c. 7. Every such company as aforesaid shall be liable for the loss of, or for any injury done to, any horses, cattle, or other animals, or to any articles, goods, or things, in the receiving, forwarding, or delivering thereof, occasioned by the neglect or default of such company or its servants, notwithstanding any notice, condition, or declaration made and given by such com- pany contrary thereto, or in anywise limiting such liability : every such notice, condition, or declaration being hereby declared to be null and void : Provided always, that nothing herein contained shall be construed to prevent the said com- panies from making such conditions with respect to the re- ceiving, forwarding, and delivering of any of the said animals, articles, goods, or things as shall be adjudged by the court or judge before whom any question relating thereto shall be tried to be just and reasonable : Provided always, that no greater damages shall be recovered for the loss of or for any injury done to any of such animals beyond the sums herein- after mentioned ; that is to say, for any horse, fifty pounds ; for any neat cattle, per head, fifteen pounds ; for any sheep or pigs, per head, two pounds ; unless the person sending or delivering the same to such company shall, at the time of such delivery, have declared thorn to be respectively of higher value than as above mentioned; in which case it shall bo 554 APPENDIX A. lawful for such, company to demand and receive, by way of compensation for the increased risk and care thereby occa- sioned, a reasonable percentage upon the excess of the value so declared above the respective sums so limited as aforesaid, and which shall be paid in addition to the ordinary rate of charge ; and such percentage or increased rate of charge shall be notified in the manner prescribed in the statute 1 1 Geo. IV. & 1 Will. IV. c. 68, and shall be binding upon such company in the manner therein mentioned : Provided also, that the proof of the value of such animals, articles, goods, and things, and the amount of the injury done thereto, shall in all cases lie upon the person claiming compensation for such loss or injury: Provided also, that no special contract between such company and any other parties respecting the receiving, for- warding, or delivering of any animals, articles, goods, or things as aforesaid, shall be binding upon or affect any such party unless the same be signed by him, or by the person delivering such animals, articles, goods, or things respectively for carriage : Provided also, that nothing herein contained shall alter or affect the rights, privileges, or liabilities of any such company under the said Act of the 11 Geo. IV. & 1 Will. IV. c. 68, with respect to articles of the descriptions mentioned in the said Act. Mei'oan- tile Law- Amend - ment Act. 19 & 20 Vict. c. 97 (1856). An Act to amend the Laics of England and Ireland affecting Trade and Commerce. 3. No special promise to be made by any person after the passing of this Act to answer for the debt, default, or mis- carriage of another person, being in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized, shall be deemed invalid to support an action, suit, or other proceeding to charge the person by whom such promise shall have been made, by reason only that the consideration for such promise does not appear APPENDIX A. 555 iii writing, or by necessary inference from a written docu- ment («). 4. No promise to answer for the debt, default, or miscarriage of another made to a firm consisting of two or more persons, or to a single person trading under the name of a firm, and no promise to answer for the debt, default, or miscarriage of a firm consisting of two or more persons, or of a single person trading under the name of a firm, shall be binding on the person making such promise in respect of anything done or omitted to be done after a change shall have taken place in any one or more of the persons constituting the firm, or in the person trading under the name of the firm, unless the intention of the parties, that such promise shall continue to be binding notwithstanding such change, shall appear either by express stipulation or by necessary irujdication from the nature of the firm or otherwise (a). 5. Every person who, being surety for the debt or duty of another, or being liable with another for any debt or duty, shall pay such debt or perform such duty, shall be entitled to have assigned to him, or to a trustee for him, every judgmeut, specialty, or other security which shall be held by the creditor in respect of such debt or duty, whether such judgment, specialty, or other security shall or shall not be deemed at law to have been satisfied by the payment of the debt or performance of the duty, and such person shall be entitled to stand in the place of the creditor, and to use all the remedies, and, if need be, and upon a proper indemnity, to use the name of the creditor, in any action or other proceeding, at law or in equity, in order to obtain from the principal debtor, or any co-surety, co-contractor, or co-debtor, as the case may be, indemnification for the advances made and loss sustained by the person who shall have so paid such debt or performed such duty, and such payment or performance so made by such surety shall not be pleadable in bar of any such action or other proceeding by him : Provided always, that no co-surety, co-contractor, or co-debtor shall be entitled to recover from any other co-surety, co-contractor, or co-debtor, by the means aforesaid, more than the just proportion to which, as between (a) Thin section was repealed by the Sale of Goods Act, 18D3 (56 & 57 Vict. c. 71). 556 APPENDIX A. those parties themselves, such last mentioned person shall be justly liable («). 13. [In reference to the provisions of 9 Geo. IV. c. 14, and 16 & 17 Yict. c. 113], an acknowledgment or promise made or contained by or in a writing signed by an agent of the party chargeable thereby, duly authorized to make such acknow- ledgment or promise, shall have the same effect as if such writing had been signed by such party himself. 14. [In reference to the provisions of 21 Jac. I. c. 16, &c], when there shall be two or more co-contractors or co-debtors, whether bound or liable jointly only, or jointly and severally, or executors or administrators of any contractor, no such co- contractor or co-debtor, executor or administrator, shall lose the benefit of the said enactments, or any of them, so as to be chargeable in respect or by reason only of payment of any principal, interest, or other money by any other or others of such co-contractors or co-debtors, executors or administrators. 26 & 27 Vict. c. 41 (1863). An Act to amend the Law respecting the Liability of Lnn- kccjjcrs, and to prevent Certain Frauds upon them. 1 . No innkeeper shall be liable to make good to any guest of such innkeeper any loss of or injury to goods or property brought to his inn, not being a horse or other live animal, or any gear appertaining thereto, or any carriage, to a greater amount than £30, except — (1.) Where such goods or property shall have been stolen, lost, or injured through the wilful act, default, or neglect of such innkeeper or his servant. (*7.) This section was repealed by the Sale of Goods Act, 1893 (56 & 57 Vict. c. 71). APPENDIX A. 557 (2.) Where the same shall have been deposited expressly for safe custody with such innkeeper. Provided, that, in case of such deposit, the innkeeper may require as a condition of his liability, that such goods or property shall be deposited in a box or other receptacle, fastened and sealed by the person depositing the same. 2. If any innkeeper shall refuse to receive for safe custody any goods or property of his guest, or if such guest shall through any default of such innkeeper be unable to deposit the same, such innkeeper shall not be entitled to the benefit of this Act in respect of the same. 3. Every innkeeper shall cause at least one copy of sect. 1 printed in plain type to be exhibited in a conspicuous part of the hall or entrance to his inn, and shall be entitled to the benefit of this Act in respect of such goods or property only as shall be brought to his inn while such copy shall be so exhibited. 34 & 35 Yict. c. 79 (1871). Lodgers' Goods Protection Act. 1. If any superior landlord shall levy, or authorize to be levied, a distress on any furniture, goods, or chattels of any lodger for arrears of rent due to such superior landlord by his immediate tenant, such lodger may serve such superior landlord, or the bailiff or other person employed by him to levy such distress, with a declaration in writing made by such lodger, setting forth that such immediate tenant has no right of property or beneficial interest in the furniture, goods, or chattels so distrained or threatened to be distrained upon, and that such furniture, goods, or chattels are the property, or in the lawful possession of, such lodger, and also setting forth whether any and what rent is due, and for what period, from such lodger to his immediate landlord ; and such lodger may pay to the superior landloz-d, or to the bailiff or other person employed by him as aforesaid, the rent, if any, so due as last 558 APPENDIX A. aforesaid, or so much thereof as shall be sufficient to dis- charge the claim, of such superior landlord. And to such declaration shall be annexed a correct inventory, subscribed by the lodger, of the furniture, goods and chattels referred to in the declaration. 2. If any superior landlord, or any bailiff, or other person employed by him, shall, after being served with the before- mentioned declaration and inventory, and after the lodger shall have paid or tendered to such superior landlord, bailiff, or other person, the rent, if any, which by the last preceding section such lodger is authorized to pay, shall levy or proceed with a distress on the furniture, goods, or chattels of the lodger, such superior landlord, bailiff, or other person, shall be deemed guilty of an illegal distress, and the lodger may apply to a justice of the peace for an order for the restoration to him of such goods ; and the superior landlord shall also be liable to an action at law at the suit of the lodger. 38 & 39 Yict. c. 92 (1875). An Act for amending the Law relating to Agricultural Holdings in England. 51. Where a half-year's notice, expiring with a year of tenancy, is by law necessary and sufficient for determination of a tenancy from year to year, a year's notice so expiring shall by virtue of this Act be necessary and sufficient for the same ; but nothing in this section shall extend to a case where the tenant is adjudged bankrupt, or has filed a petition for a composition or arrangement with his creditors. 53. Where after the commencement of this Act a tenant affixes to his holding any engine, machinery, or other fixture for which he is not under this Act or otherwise entitled to compensation, and which is not so affixed in pursuance of some obligation in that behalf or instead of some fixture belonging to the landlord, then such fixture shall be the property of and be removable by the tenant. APPENDIX A. 559 Provided as follows : — (1.) Before the removal of any fixture the tenant shall pay all rent owing by him, and shall perform or satisfy all other his obligations to the landlord in respect of the holding : (2.) In the removal of any fixture the tenant shall not do any avoidable damage to any building or other part of the holding : (3.) Immediately after the removal of any fixture the tenant shall make good all damage occasioned to any building or other part of the holding by the removal : (4.) The tenant shall not remove any fixture without giving one month's previous notice in writing to the landlord of the intention of the tenant to remove it : (5.) At any time before the expiration of the notice of re- moval, the landlord, by notice in writing given by him to the tenant, may elect to purchase any fixture com- prised in the notice of removal, and any fixture thus elected to be purchased shall be left by the tenant, and shall become the property of the landlord, who shall pay the tenant the fair value thereof to an incoming tenant of the holding ; and any difference as to the value shall be settled by a reference under this Act, as in case of compensation (but without appeal) : But nothing in this section shall apply to a steam engine orected by the tenant if, before erecting it, the tenant has not given to the landlord notice in writing of his intention to do so, or if the landlord, by notice in writing given to the tenant, has objected to the erection thereof. 54. Nothing in this Act shall prevent a landlord and tenant, or intending landlord and tenant, from entering into and carrying into effect any such agreement as they think fit, or shall interfere with the operation thereof. 58. Nothing in this Act shall apply to a holding that is not either wholly agricultural or wholly pastoral, or in part agri- cultural and as to the residue pastoral, or that is of less extent than two acres. 560 APPENDIX A. 41 & 42 Vict. c. 31 (1878). An Act to consolidate and amend the Law for preventing Frauds upon Creditors by Secret Bills of Sale of Per- sonal Chattels. 11. The registration of a bill of sale, whether executed before or after the commencement of this Act, must be renewed once at least every five years, and if a period of five years elapses from the registration or renewed registration of a bill of sale without a renewal or further renewal (as the case may be), the registration shall become void. The re- newal of a registration shall be effected by filing with the registrar an affidavit stating the date of the bill of sale and of the last registration thereof, and the names, residences, and occupations of the parties thereto as therein stated, and that the bill of sale is still a subsisting security. ... A renewal of registration shall not become necessary by reason only of a transfer or assignment of a bill of sale. 43 & 44 Vict. c. 42 (1880). An Act to extend and regulate the Liability of Employers to make Compensation for personal Injuries suffered by Workmen in their service. 1 . Where after the commencement of this Act personal in- jury is caused to a workman — (1.) By reason of any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the employer ; or (2.) By reason of the negbgence of any person in the service of the employer who has any superintendence entrusted to him whilst in the exercise of such superin- tendence ; or (3.) By reason of the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury was bound to APPENDIX A. 5G1 conform, and did conform, where such, injury resulted from his having so conformed ; or (4.) By reason of the act or omission of any person in the service of the employer done or made in ohedience to the rules or bye-laws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf ; or (5.) By reason of the negligence of any person in the service of the employer who has the charge or control of any signal, points, locomotive engine, or train upon a railway, the workman, or in case the injury results in death the legal personal representatives of the workman, and any persons entitled in case of death, shall have the same right of compensation and reme- dies against the employer as if the workman had not been a workman of nor in the service of the employer, nor engaged in his work. 2. A workman shall not be entitled under this Act to any right of compensation or remedy against the employer in any of the following cases ; that is to say, (1.) Under sub- section one of section one, unless the defect therein mentioned arose from, or had not been dis- covered or remedied owing to the negligence of the employer, or of some person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition. (2.) Under sub-section four of section one, unless the injury resulted from some impropriety or defect in the rides, bye-laws, or instructions therein mentioned ; provided that where a rule or bye-law has been approved or has been accepted as a proper rule or bye-law by one of her Majesty's principal Secretaries of State, or by the Board of Trade, or any other department of the Government, under or by virtue of any Act of Parlia- ment, it shall not be deemed for the purposes of this Act to be an improper or defective rule or bye-law. (3.) In any case where the workman knew of the defect or negligence which caused his injury, and failed within a reasonable time to give, or causo to be given, in- formation thereof to the employer or some person 8. — C. O O 562 APPENDIX A. superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence. 4. An action for the recovery under this Act of compensa- tion for an injury shall not be maintainable unless notice that injury has been sustained is given within six weeks, and the action is commenced within six months from the occurrence of the accident causing the injury, or, in case of death, within twelve months from the time of death : Provided always, that in case of death the want of such notice shall be no bar to the maintenance of such action if the judge shall be of opinion that there was reasonable excuse for such want of notice. 6. — (1.) Every action for recovery of compensation under this Act shall be brought in a county court, but may, upon the application of either plaintiff or defendant, be removed into a superior court in like manner and upon the same conditions as an action commenced in a county court may by law be removed. 44 & 45 Yict. c. 41 (1881). An Act for simplifying and improving the practice of Convey- ancing ; and for vesting in Trustees, Mortgagees, and others, various powers commonly conferred by provisions inserted in Settlements, Mortgages, Wills, and other Instruments; and for amending in various particulars the Law of Property ; and for other pioposes. 10. — (1.) Rent reserved by a lease, and the benefit of every covenant or provision therein contained, having reference to the subject-matter thereof, and on the lessee's part to be observed or performed, and every condition of re-entry and other condition therein contained, shall be annexed and incident to and shall go with the reversionary estate in the land, or in any part thereof, immediately expectant on the term granted by the lease, notwithstanding severance of that reversionary estate, and shall be capable of being recovered, APPENDIX A. received, enforced, and taken advantage of by the person from time to time entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased. (2.) This section applies only to leases made after the com- mencement of this Act. 11. — (1.) The obligation of a covenant entered into by a lessor with reference to the subject-matter of the lease shall, if and as far as the lessor has power to bind the reversionary estate immediately expectant on the term granted by the lease, be annexed and incident to and shall go with that reversionary estate, or the several parts thereof, notwithstanding severance of that reversionary estate, and may be taken advantage of and enforced by the person in whom the term is from time to time vested by conveyance, devolution in law, or otherwise ; and, if and as far as the lessor has power to bind the person from time to time entitled to that reversionary estate, the obligation aforesaid may be taken advantage of and enforced against any person so entitled. (2.) This section applies only to leases made after the com- mencement of this Act. 14. — (1.) A right of re-entry or forfeiture under any proviso or stipulation in a lease, for a breach of any covenant or con- dition in the lease, shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice specifying the particular breach complained of, and, if the breach is capable of remedy, requiring the lessee to remedy the breach, and, in any case, requiring the lessee to make compensation in money for the breach, and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach. (2.) Where a lessor is proceeding, by action or otherwise, to enforce such a right of re-entry or forfeiture, the lessee may, in the lessor's action, if any, or in any action brought by himself, apply to the court for relief ; and the court may grant or refuse relief as the court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and to all the other circumstances, thinks fit ; and in case of relief may grant it on such terms, if any, as to costs, expenses, damages, compensation, penalty, or otherwise, in- o o 2 563 564 APPENDIX A. eluding the granting of an injunction to restrain any like breach in the future, as the court, in the circumstances of each case, thinks fit. (3.) For the purposes of this section a lease includes an original or derivative under-lease, also a grant at a fee farm rent, or securing a rent by condition ; and a lessee includes an original or derivative under-lessee, and the heirs, executors, administrators, and assigns of a lessee, also a grantee under such a grant as aforesaid, his heirs and assigns ; and a lessor includes an original or derivative under-lessor, and the heirs, executors, administrators, and assigns of a lessor ; also a grantor as aforesaid, and his heirs and assigns. (4.) This section applies although the proviso or stipula- tion under which the right of re-entry or forfeiture accrues is inserted in the lease in pursuance of the directions of any Act of Parliament. (5.) For the purposes of this section a lease limited to con- tinue as long only as the lessee abstains from committing a breach of covenant shall be and take effect as a lease to continue for any longer term for which it could subsist, but determinable by a proviso for re-entry on such a breach. (6.) This section does not extend — (i.) To a covenant or condition against the assigning, under- letting, parting with the possession, or disposing of the land leased ; or to a condition for forfeiture on the bankruptcy of the lessee, or on the taking in execution of the lessee's interest ; or (ii.) In case of a mining lease, to a covenant or condition for allowing the lessor to have access to or inspect books, accounts, records, weighing machines or other things, or to enter or inspect the mine or the workings thereof. (7.) The enactments described in Part I. of the Second Schedule to this Act are hereby repealed. (8.) This section shall not affect the law relating to re-entry or forfeiture or relief in case of non-payment of rent. (9.) This section applies to leases made either before or after the commencement of this Act, and shall have effect notwithstanding any stipulation to the contrary. APPENDIX A. 565 45 & 46 Yict. c. 43 (1882). An Act to amend the Bills of Sale Act, 1878. 4. Every bill of sale shall have annexed thereto or written thereon a schedule containing an inventory of the personal chattels comprised in the bill of sale ; and such bill of sale, save as hereinafter mentioned, shall have effect only in respect of the personal chattels specifically described in the said schedule ; and shall be void, except as against the grantor, in respect of any personal chattels not so specifically described. 5. Save as hereinafter mentioned, a bill of sale shall be void, except as against the grantor, in respect of any personal chattels specifically described in the schedule thereto of which the grantor was not the true owner at the time of the execu- tion of the bill of sale. 6. Nothing contained in the foregoing sections of this Act shall render a bill of sale void in respect of any of the follow- ing things ; (that is to say,) (1.) Any growing crops separately assigned or charged where such crops were actually growing at the time when the bill of sale was executed. (2.) Any fixtures separately assigned or charged, and any plant, or trade machinery where such fixtures, plant, or trade machinery are used in, attached to, or brought upon any land, farm, factory, workshop, shop, house, warehouse, or other place in substitution for any of the like fixtures, plant, or trade machinery specifically described in the schedule to such bill of sale. 7. Personal chattels assigned under a bill of sale shall not be liable to be seized or taken possession of by the grantee for any other than the following causes : — (1.) If the grantor shall make default in payment of the sum or sums of money thereby secured at the time therein provided for payment, or in the performance of any covenant or agreement contained in the bill of sale and necessary for maintaining the security ; (2.) If the grantor shall become a bankrupt, or suffer the said goods or any of them to be distrained for rent, rates, or taxes ; (3.) If the grantor shall fraudulently either remove or suffer 566 APPENDIX A. the said goods, or any of them, to be removed from the premises ; (4.) If the grantor shall not, without reasonable excuse, upon demand in writing by the grantee, produce to him his last receipts for rent, rates, and taxes ; (5.) If execution shall have been levied against the goods of the grantor under any judgment at law : Provided that the grantor may, within five days from the seizure or taking possession of any chattels on account of any of the above-mentioned causes, apply to the High Court, or to a judge thereof in chambers, and such court or judge, if satisfied that by payment of money or otherwise the said cause of seizure no longer exists, may restrain the grantee from removing or selling the said chattels, or may make such other order as may seem just. 8. Every bill of sale shall be duly attested, and shall be registered under the principal Act within seven clear days after the execution thereof, or, if it is executed in any place out of England, then within seven clear days after the time at which it would in the ordinary course of post arrive in England if posted immediately after the execution thereof ; and shall truly set forth the consideration for which it was given ; otherwise such bill of sale shall be void in respect of the personal chattels comprised therein. 9. A bill of sale made or given by way of security for the payment of money by the grantor thereof shall be void unless made in accordance with the form in the schedule to this Act annexed. 10. The execution of every bill of sale by the grantor shall be attested by one or more credible witness or witnesses not being a party or parties thereto. So much of section ten of the principal Act as requires that the execution of every bill of sale shall be attested by a solicitor of the Supreme Court, and that the attestation shall state that before the execution of the bill of sale the effect thereof has been explained to the grantor by the attesting witness, is hereby repealed. 12. Every bill of sale made or given in consideration of any sum under thirty pounds shall be void. 13. All personal chattels seized, or of which possession is taken after the commencement of this Act, under or by virtue of any bill of sale (whether registered before or after the APPENDIX A. 567 commencement of this Act), shall remain on the premises where they were so seized or so taken possession of, and shall not be removed or sold until after the expiration of five clear days from the day they were so seized or so taken possession of. 14. A bill of sale to which this Act applies shall be no pro- tection in respect of personal chattels included in such bill of sale, which, but for such bill of sale, would have been liable to distress under a warrant for the recovery of taxes and poor and other parochial rates. 45 & 46 Vict. c. 61 (1882). An Act to codify the law relating to Bills of Exchange, Cheques, and Promissory Notes. 22. — (1.) Capacity to incur liability as a party to a bill is co-extensive with capacity to contract. Provided that nothing in this section shall enable a cor- poration to make itself liable as drawer, acceptor, or indorser of a bill unless it is competent to it so to do under the law for the time being in force relating to corporations. (2.) Where a bill is drawn or indorsed by an infant, minor, or corporation having no capacity or power to incur liability on a bill, the drawing or endorsement entitles the holder to receive payment of the bill, and to enforce it against any other party thereto. 23. No person is liable as drawer, indorser, or acceptor of a bill who has not signed it as such : Provided that — (1.) Where a person signs a bill in a trade or assumed name, he is liable thereon as if he had signed it in his own name : (2.) The signature of the name of a firm is equivalent to the signature by the person so signing of the names of all persons liable as partners in that firm. 24. Subject to the provisions of this Act, where a signature on a bill is forged or placed thereon without the authority of the person whose signature it purports to be, tho forged or unauthorized signature is wholly inoperative, and no right to 568 APPENDIX A. retain the bill or to give a discharge therefor or to enforce payment thereof against any party thereto can be acquired through or under that signature, unless the party against whom it is sought to retain or enforce payment of the bill is precluded from setting up the forgery or want of authority. Provided that nothing in this section shall affect the rati- fication of an unauthorized signature not amounting to a forgery. 25. A signature by procuration operates as notice that the agent has but a limited authority to sign, and the principal is only bound by such signature if the agent in so signing was acting within the actual limits of his authority. 26. — (1.) Where a person signs a bill as drawer, indorser, or acceptor, and adds words to his signature, indicating that he signs for or on behalf of a principal, or in a representative character, he is not personally liable thereon ; but the mere addition to his signature of words describing him as an agent, or as filling a representative character, does not exempt him from personal liability. (2.) In determining whether a signature on a bill is that of the principal or that of the agent by whose hand it is written, the construction most favourable to the validity of the instru- ment shall be adopted. 53. — (1.) A bill of itself does not operate as an assignment of funds in the hands of the drawee available for the payment thereof, and the drawee of a bill who does not accept as re- quired by this Act is not liable on the instrument. This sub- section shall not extend to Scotland. (2.) In Scotland, where the drawee of a bill has in his hands funds available for the payment thereof, the bill operates as an assignment of the sum for which it is drawn in favour of the holder, from the time when the bill is pre- sented to the drawee. 54. The acceptor of a bill, by accepting it — (1.) Engages that he will pay it according to the tenor of his acceptance : (2.) Is precluded from denying to a holder in due course : (a.) The existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the bill ; (b.) In the case of a bill payable to drawer's order, the APPENDIX A. 569 then capacity of the drawer to indorse, but not the genuineness or validity of his indorsement ; (c.) In case of a bill payable to the order of a third person, the existence of the payee and his then capacity to indorse, but not the genuineness or validity of his indorsement. 55. — (1.) The drawer of a bill, by drawing it — (a.) Engages that on due presentment it shall be ac- cepted and paid according to its tenor, and that if it be dishonoured he will compensate the holder or any indorser who is compelled to pay it, provided that the requisite proceedings on dishonour be duly taken ; (b.) Is precluded from denying to a holder in due course the existence of the payee and his then capacity to indorse. (2.) The indorser of a bill, by indorsing it — («.) Engages that on due presentment it shall be ac- cepted and paid according to its tenor, and that if it be dishonoured he will compensate the holder or a subsequent indorser who is compelled to pay it, pro- vided that the requisite proceedings on dishonour be duly taken ; (b.) Is precluded from denying to a holder in due course the genuineness and regularity in all respects of the drawer's signature and all previous indorse- ments ; (c.) Is precluded from denying to his immediate or a subsequent indorsee that the bill was at the time of his indorsement a valid and subsisting bill, and that he had then a good title thereto. 56. Where a person signs a bill otherwise than as drawer or acceptor he thereby incurs the liabilities of an indorser to a holder in due course. 57. "Where a bill is dishonoured, the measure of damages, which shall be deemed to be liquidated damages, shall be as follows : — (1.) The holder may recover from any party liable on the bill, and the drawer who has been compelled to pay the bill may recover from the accejitor, and an indorser who has been compelled to pay tho bill may recover 570 APPENDIX A. from the acceptor or from the drawer, or from a prior indorser — («.) The amount of the bill ; (b.) Interest thereon from the time of presentment for payment if the bill is payable on demand, and from the maturity of the bill in any other case ; (c.) The expenses of noting, or, when protest is neces- sary, and the protest has been extended, the expenses of protest. (2.) In the case of a bill which has been dishonoured abroad, in lieu of the above damages the holder may recover from the drawer or an indorser, and the drawer or an indorser who has been compelled to pay the bill may recover from any party liable to him, the amount of the re-exchange with interest thereon until the time of payment. (3.) Where by this Act interest may be recovered as damages, such interest may, if justice require it, be withheld wholly or in part, and where a bill is ex- pressed to be payable with interest at a given rate, interest as damages may or may not be given at the same rate as interest proper. (For other sections of this Act, see pp. 112 — 115, 120, and 315.) 45 & 46 Vict. c. 75 (1882). An Act to consolidate and amend the Acts relating to the Property of Married Women. 1. — (1.) A married woman shall, in accordance with the provisions of this Act, be capable of acquiring, holding, and disposing by will or otherwise, of any real or personal pro- perty as her separate property, in the same manner as if she were a, feme sole, without the intervention of any trustee. (2.) A married woman shall be capable of entering into and rendering herself liable in respect of and to the extent of her separate property on any contract, and of suing and being sued, either in contract or in tort, or otherwise, in all respects as if APPENDIX A. 571 she were a feme sole, and her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or other legal proceeding brought by or taken against her ; and any damages or custs recovered by her in any such action or proceeding shall be her separate property ; and any damages or costs recovered against her in any such action or proceed- ing shall be payable out of her separate property, and not otherwise. (3.) Every contract entered into by a married woman shall be deemed to be a contract entered into by her with respect to and to bind her separate property, unless the contrary be shown (a). (4.) Every contract entered into by a married woman with respect to and to bind her separate property shall bind not only the separate property which she is possessed of or entitled to at the date of the contract, but also all separate property which she may thereafter acquire (a). (5.) Every married woman carrying on a trade separately from her husband shall, in respect of her separate property, be subject to the bankruptcy laws in the same way as if she were a feme sole. 2. Every woman who marries after the commencement of this Act shall be entitled to have and to hold as her separate property and to dispose of in manner aforesaid all real and personal property which shall belong to her at the time of marriage, or shall be acquired by or devolve upon her after marriage, including any wages, earnings, money, and property gained or acquired by her in any employment, trade, or occupation in which she is engaged, or which she carries on separately from her husband, or by the exercise of any literary, artistic, or scientific skill. 5. Every woman married before the commencement of this Act shall be entitled to have and to hold and to dispose of in manner aforesaid as her separate property all real and personal property, her title to which, whether vested or con- tingent, and whether in possession, reversion or remainder, shall accrue after the commencement of this Act, including any wages, earnings, money, and property so gainod or acquired by her as aforesaid. (a) This sub-section was repealed by 50 & 57 Vict. c. C3 (Married Women's Property Act, IS'.):; , see />oJ, p. 5S0. 572 APPENDIX A. 1 1 . A married woman may by virtue of the power of making contracts hereinbefore contained effect a policy upon her own life or the life of her husband for her separate use ; and the same and all benefit thereof shall enure accordingly. A policy of assurance effected by any man on his own life, and expressed to be for the benefit of his wife, or of his children, or of his wife and children, or any of them, or by any woman on her own life, and expressed to be for the benefit of her husband, or of her children, or of her husband and children, or any of them, shall create a trust in favour of the objects therein named, and the moneys payable under any such policy shall not, so long as any object of the trust remains unperformed, form part of the estate of the insured, or be subject to his or her debts : Provided that if it shall be proved that the policy was effected and the premiums paid with intent to defraud the creditors of the insured, they shall be entitled to receive, out of the moneys payable under the policy, a sum equal to the premiums so paid. The insured may by the policy, or by any memorandum under his or her hand, appoint a trustee or trustees of the moneys payable under the policy, and from time to time appoint a new trustee or new trustees thereof, and may make provision for the appointment of a new trustee or new trustees thereof, and for the investment of the moneys payable under any such policy. In default of any such appointment of a trustee, such policy, immediately on its being effected, shall vest in the insured and his or her legal personal representatives, in trust for the purposes afore- said. If, at the time of the death of the insured, or at any time afterwards, there shall be no trustee, or it shall be ex- pedient to appoint a new trustee or new trustees, a trustee or trustees or a new trustee or new trustees may be appointed by any Court having jurisdiction under the provisions of the Trustee Act, 1850, or the Acts amending and extending the same. The receipt of a trustee or trustees duly appointed, or, in default of any such appointment, or in default of notice to the insurance office, the receipt of the legal personal repre- sentative of the insured shall be a discharge to the office for the sum secured by the policy, or for the value thereof, in whole or in part. 12. Every woman, whether married before or after this Act, shall have in her own name against all persons whomsoever, APPENDIX A. 573 including- her husband, the same civil remedies, and also (subject, as regards her husband, to the proviso hereinafter contained) the same remedies and redress by way of criminal proceedings, for the protection and security of her own sepa- rate property, as if such property belonged to her as a, feme sole ; but, except as aforesaid, no husband or wife shall be entitled to sue the other for a tort. In any indictment or other proceeding under this section it shall be sufficient to allege such property to be her property ; and in any proceed- ing under this section a husband or wife shall be competent to give evidence against each other, any statute or rule of law to the contrary notwithstanding : Provided always, that no criminal proceeding shall be taken by any wife against her husband by virtue of this Act while they are living together, as to or concerning any property claimed by her, nor while they are living apart, as to or concerning any act done by the husband while they were living together, concerning property claimed by the wife, unless such property shall have been wrongfully taken by the husband when leaving or deserting, or about to leave or desert, his wife. 13. A woman after her marriage shall continue to be liable in respect and to the extent of her separate property for all debts contracted, and all contracts entered into or wrongs committed by her before her marriage, including any sums for which she may be liable as a contributory, either before or after she has been placed on the list of contributories, under and by virtue of the Acts relating to joint stock companies ; and she may be sued for any such debt and for any liability in damages or otherwise under any such contract, or in respect of any such wrong ; and all sums recovered against her in respect thereof, or for any costs relating thereto, shall be payable out of her separate property ; and, as between her and her husband, unless there be any contract between them to the contrary, her separate property shall be deemed to be primarily liable for all such debts, contracts, or wrongs, and for all damages or costs recovered in respect thereof : Provided always, that nothing in this Act shall operate to increase or diminish the liability of any woman married before the commencement of this Act for any such debt, contract, or wrong, as aforesaid, except as to any separate property to which she may become entitled by virtue 574 APPENDIX A. of this Act, and to which, she would not have been entitled for her separate use under the Acts hereby repealed or other- wise, if this Act had not passed. 14. A husband shall be liable for the debts of his wife contracted, and for all contracts entered into and wrongs committed by her, before marriage, including any liabilities to which she may be so subject under the Acts relating to joint stock companies as aforesaid, to the extent of all pro- perty whatsoever belonging to his wife which he shall have acquired or become entitled to from or through his wife, after deducting therefrom any payments made by him, and any sums for which judgment may have been bond fide recovered against him in any proceeding at law, in respect of any such debts, contracts, or wrongs for or in respect of which his wife was liable before her marriage as aforesaid ; but he shall not be liable for the same any further or otherwise ; and any Court in which a husband shall be sued for any such debt shall have power to direct any inquiry or proceedings which it may think proper for the purpose of ascertaining the nature, amount, or value of such property : Provided always, that nothing in this Act contained shall operate to increase or diminish the liability of any husband married before the commencement of this Act for or in respect of any such debt or other liability of his wife as aforesaid. 15. A husband and wife may be jointly sued in respect of any such debt or other liability (whether by contract or for any wrong) contracted or incurred by the wife before marriage as aforesaid, if the plaintiff in the action shall seek to establish his claim, either wholly or in part, against both of them ; and if in any such action, or in any action brought in respect of any such debt or liability against the husband alone, it is not found that the husband is liable in respect of any property of the wife so acquired by him or to which he shall have become so entitled as aforesaid, he shall have judgment for his costs of defence, whatever may be the result of the action against the wife if jointly sued with him ; and in any such action against husband and wife jointly, if it appears that the husband is liable for the debt or damages recovered, or any part thereof, the judgment to the extent of the amount for which the husband is liable shall be a joint judgment against the husband personally and against APPENDIX A. 575 the wife as to her separate property ; and as to the residue, if any, of such debt and damages, the judgment shall be a separate judgment against the wife as to her separate pro- perty only. 16. A wife doing any act with respect to any property of her husband, which, if done by the husband with respect to properly of the wife, would make the husband liable to criminal proceedings by the wife under this Act, shall in like manner be liable to criminal proceedings by her husband. 22. The Married "Women's Property Act, 1870, and the Married Women's Property Act, 1870, Amendment Act, 1874, are hereby repealed : Provided, that such repeal shall not affect any act done or right acquired while either of such Acts was in force, or any right or liability of any husband or wife, married before the commencement of this Act, to sue, or be sued under the provisions of the said repealed Acts or either of them, for or in respect of any debt, contract, wrong, or other matter or thing whatsoever, for or in respect of which any such right or liability shall have accrued to or against such husband or wife before the commencement of this Act. 46 & 47 Yict. c. 61 (1883). An Act for amending the Law relating to Agricultural Holdings in England. I. Subject as in this Act mentioned, where a tenant has made on his holding any improvement comprised in the First Schedule hereto, he shall, on and after the commencement of this Act, be entitled, on quitting his holding at the determina- tion of a tenancy, to obtain from the landlord as compensation under this Act for such improvement such sum as fairly repre- sents the value of the improvement to an incoming tenant : Provided always, that in estimating the value of any improve- ment in the First Schedule hereto there shall not be taken into account as part of the improvement made by the tenant what is justly due to the inherent capabilities of the soil. 7. A tenant claiming compensation under this Act shall, two months at least before the determination of the tenancy, 576 APPENDIX A. give notice in writing to the landlord of Lis intention to mate such claim. "Where a tenant gives such notice, the landlord may, before the determination of the tenancy, or within fourteen days thereafter, give a counter-notice in writing to the tenant of his intention to make a claim in respect of any waste or any breach of covenant or other agreement. Every such notice and counter-notice shall state, as far as reasonably may be, the particulars and amount of the intended claim. 33. Where a half-year's notice, expiring with a year of tenancy, is by law necessary and sufficient for determination of a tenancy from year to year, in the case of any such tenancy under a contract of tenancy made either before or after the commencement of this Act, a year's notice so expiring shall by virtue of this Act be necessary and sufficient for the same, unless the landlord and tenant of the holding, by writing under their hands, agree that this section shall not apply, in which case a half-year's notice shall continue to be sufficient ; but nothing in this section shall extend to a case where the tenant is adjudged bankrupt, or has filed a petition for a composition or arrangement with his creditors. 34. Where after the commencement of this Act a tenant affixes to his holding any engine, machinery, fencing, or other fixture, or erects any building for which he is not under this Act or otherwise entitled to compensation, and which is not so affixed or erected in pursuance of some obligation in that behalf or instead of some fixture or building belonging to the landlord, then such fixture or building shall be the property of and be removable by the tenant before or within a reason- able time after the termination of the tenancy. Provided as follows : — (1.) Before the removal of any fixture or building the tenant shall pay all rent owing by him, and shall perform or satisfy all other his obligations to the landlord in respect to the holding : (2.) In the removal of any fixture or building the tenant shall not do any avoidable damage to any other building or other part of the holding : (3.) Immediately after the removal of any fixture or building the tenant shall make good all damage APPENDIX A. 577 occasioned to any other building or other part of the holding by the removal : (4.) The tenant shall not remove any fixture or building without giving one month's previous notice in writing to the landlord of the intention of the tenant to remove it : (5.) At any time before the expiration of the notice of removal the landlord, by notice in writing given by him to the tenant, may elect to purchase any fixture or building comprised in the notice of removal, and any fixture or building thus elected to be purchased shall be left by the tenant, and shall become the property of the landlord, who shall pay the tenant the fair value thereof to an incoming tenant of the holding ; and any difference as to the value shall be settled by a reference under this Act, as in case of compensation (but without appeal). 44. After the commencement of this Act it shall not be lawful for any landlord entitled to the rent of any holding to which this Act applies to distrain for rent, which became due in respect of such holding, more than one year before the making of such distress, except in the case of arrears of rent in respect of a holding to which this Act applies existing at the time of the passing of this Act, which arrears shall be recoverable by distress up to the first day of January, one thousand eight hundred and eighty-five, to the same extent as if this Act had not passed. Provided that where it appears that according to the ordinary course of dealing between the landlord and tenant of a holding the payment of the rent of such holding has been allowed to be deferred until the expiration of a quarter of a year or half a year after the date at which such rent legally became due, then for the purpose of this section the rent of such holding shall be deemed to have become due at the expiration of such quarter or half year as aforesaid, as the case may be, and not at the date at which it legally became due. 45. Where live stock belonging to another person has been taken in by the tenant of a holding to which this Act applies to be fed at a fair price agreed to be paid for such feeding by the owner of such stock to the tenant, such stock shall not bo s. — c. >• i' 578 APPENDIX A. distrained by the landlord for rent where there is other suffi- cient distress to be found, and if so distrained by reason of other sufficient distress not being found, there shall not be recovered by such distress a sum exceeding the amount of the price so agreed to be paid for the feeding, or if any part of such price has been paid exceeding the amount remaining unpaid, and it shall be lawful for the owner of such stock, at any time before it is sold, to redeem such stock by paying to the distrainer a sum equal to such price as aforesaid, and any payment so made to the distrainer shall be in full dis- charge as against the tenant of any sum of the like amount which would be otherwise due from the owner of the stock to the tenant in respect of the price of feeding : Provided always, that so long as any portion of such live stock shall remain on the said holding the right to distrain such portion shall con- tinue to the full extent of the price originally agreed to be paid for the feeding of the whole of such live stock, or if part of such price has been bond fide paid to the tenant under the agreement, then to the full extent of the price then remaining unpaid. Agricultural or other machinery which is the bond fide pro- perty of a person other than the tenant, and is on the premises of the tenant under a bond fide agreement with him for the hire or use thereof in the conduct of his business, and live stock of all kinds which is the bond fide property of a person other than the tenant, and is on the premises of the tenant solely for breeding purposes, shall not be distrained for rent in arrear. 46. "Where any dispute arises — (a) In respect of any distress having been levied contrary to the provisions of this Act ; or (b) As to the ownership of any live stock distrained, or as to the price to be paid for the feeding of such stock; or (c) As to any other matter or thing relating to a distress on a holding to which this Act applies : such dispute may be heard and determined by the County Court or by a Court of summary jurisdiction, and any such County Court or Court of summary jurisdiction may make an order for restoration of any live stock or things unlawfully distrained, or may declare the price agreed to be paid in the APPENDIX A. 579 case where the price of the feeding is required to be ascer- tained, or may make any other order which justice requires ; any such dispute as mentioned in this section shall be deemed to be a matter in which a Court of summary jurisdiction has authority by law to make an order on complaint in pursuance of the Summary Jurisdiction Acts ; but any person aggrieved by any decision of such Court of summary jurisdiction under this section may, on giving such security to the other party as the Court may think just, appeal to a Court of general or quarter sessions. 54. Nothing in this Act shall apply to a holding that is not either wholly agricultural or wholly pastoral, or in part agri- cultural and as to the residue pastoral, or in whole or in part cultivated as a market garden, or to any holding let to the tenant during his continuance in any office, appointment, or employment held under the landlord. 55. Any contract, agreement, or covenant made by a tenant, by virtue of which he is deprived of his right to claim com- pensation under this Act in respect of any improvement men- tioned in the First Schedule hereto (except an agreement providing such compensation as is by this Act permitted to be substituted for compensation under this Act), shall, so far as it deprives him of such right, be void both at law and in equity. 56. "Where an incoming tenant has, with the consent in writing of his landlord, paid to an outgoing tenant any com- pensation payable under or in pursuance of this Act in respect of the whole or part of any improvement, such incoming tenant shall be entitled on quitting the holding to claim com- pensation in respect of such improvement or part in like manner, if at all, as the outgoing tenant would have been entitled if he had remained tenant of the holding, and quitted the holding at the time at which the incoming tenant quits the same. pp2 580 APPENDIX A. 56 & 57 Vict. c. 21 (1893). The Voluntary Conveyances Act, 1893. 2. Subject as hereinafter mentioned, no voluntary convey- ance of any lands, tenements, or hereditaments, whether made before or after the passing of this Act, if in fact made bond fide and without any fraudulent intent, shall hereafter be deemed fraudulent or covinous within the meaning of the Act twenty-seven Elizabeth, chapter four, by reason of any subse- quent purchase for value, or be defeated under any of the provisions of the said Act by a conveyance made upon any such purchase, any rule of law notwithstanding. 3. This Act does not apply in any case in which the author of a voluntary conveyance of any lands, tenements, or here- ditaments has subsequently, but before the passing of this Act, disposed of or dealt with the same lands, tenements, or hereditaments to or in favour of a purchaser for value. 4. The expression "conveyance" includes every mode of disposition mentioned or referred to in the said Act of Eliza- beth. 56 & 57 Vict. c. 63 (1893). The Married Women's Property Act, 1893. 1. Every contract hereafter entered into by a married woman, otherwise than as agent, (a.) shall be deemed to be a contract entered into by her with respect to and to bind her separate property whether she is or is not in fact possessed of or entitled to any separate property at the time when she enters into such contract ; (b.) shall bind all separate property which she may at that time or thereafter be possessed of or entitled to ; and (c.) shall also be enforceable by process of law against all property which she may thereafter while discovert be possessed of or entitled to ; Provided that nothing in this section contained shall render APPENDIX A. 581 available to satisfy any liability or obligation arising out of such contract any separate property which, at that time or thereafter she is restrained from anticipating. 2. In any action or proceeding now or hereafter instituted by a woman or by a next friend on her behalf, the Court before which such action or proceeding is pending shall have jurisdiction, by judgment or order, from time to time, to order payment of the costs of the opposite party out of property which is subject to a restraint on anticipation, and may enforce such payment by the appointment of a receiver and the sale of the property or otherwise as may be just. 3. Sect. 24 of the Wills Act, 1837, shall apply to the will of a married woman made during coverture, whether she is or is not possessed of or entitled to any separate property at the time of making it, and such will shall not require to be re- executed or republished after the death of her husband. 4. Sub-sects. (3) and (4) of sect. 1 of the Married Women's Property Act, 1882, are hereby repealed. 582 APPENDIX B. PRINCIPAL LEGAL MAXIMS. (1.) Accessoriuni non ducit, sed sequitur, suum principale. ( The accessory does not lead, but follows, its principal.) (2.) Acta exteriora indicant interiora secreta. {Overt acts proclaim a ma?i , s intentions and motives.) (3.) Actio personalis moritur cum persona. {A personal right of action ceases at death.) (4.) Actus Dei nemini facit injuriam. ( The act of God does injury to no man.) (5.) Benigne faciendee sunt interpretationes propter simplici- tatem laicorum, ut res magis valeat quam pereat. {Instruments ought to be construed leniently, with allowance made for the ignorance of people who are not lawyers, so that the transaction may be supported, and not rendered nugatory.) (6.) Caveat emptor. {The buyer must hole after himself.) (7.) Cessante ratione, cessat lex. ( When the reason for a law ceases to exist, so also does the law itself.) (8.) Contemporanea expositio est optima et fortissima in lege. ( The best way of getting at the meaning of an instrument is to ascertain ichen and under what circumstances it teas made.) (9.) Cuilibet in sua. arte perito eredendum est. {Every man is an expert in the particular branch of business he is familiar with.) [10. [11. 12. [13, [14. 15. [16. [17. [18, [19. [20. (21. [22. [23. '24 APPENDIX B. 533 Delegatus non potest delegare. (A person having merely delegated authority cannot himself delegate that authority to another.) De minimis non curat lex. [The law does not trouble itself about trifles.) Domus sua est cuique tutissimum refugium. (A mail's house is his safest retreat.) Ex nudo pacto non oritur actio. {In order to ground an action, an agreement must have a consideration.) Expedit reipublicee ne quis sua re male utatur. (The good of the State requires a man not to injure his own property.) Expressum facit cessare taciturn. {When all the terms are expressed, nothing can be implied.) Ex turpi causa, non oritur actio. (Immorality will not ground an action.) Id certum est quod certum reddi potest. (What can be reduced to a certainty is already a certainty.) Ignorantia facti excusat, ignorantia juris non excusat. (A man may be pardoned for mistaking facts, but not for mistaking the law.) In contractis tacite insunt quae sunt moris et consue- tudinis. (Persons are presumed to contract with reference to habits and customs.) In jure non remota sed proxima causa spectatur. (It is not the remote but the immediate cause that the law looks at.) Interest reipublicse ut sit finis litium. (It is the interest of the State that litigation should cease.) Judicis est jus dicere, non dare. (A judge should administer the laic as he finds it, not make it.) Lex non cogit ad impossibilia. (The law never urges to impossibilities.) Lex semper intendit quod convenit rationi. (The law must be taken to intend what is reasonable.) 584 APPENDIX B. (25.) Lex spectat naturae ordinem. {The law takes into account the natural sitcccssion of tilings.) (26.) Modus et eonventio vincunt legera. {Persons may contract themselves out of their legal liabilities.) (27.) Non dat qui non habet. {A man cannot give what he has not got.) (28.) Non omnium quae a majoribus constituta sunt ratio reddi potest. {A reason cannot be given for everything that our ancestors were pleased to ordain.) (29.) Nullum simile est idem nisi quatuor pedibus currit. {Similarity is not analogy unless it runs on all fours.) (30.) Omne majus continet in se minus. {The greater includes the less.) (31.) Omnia praesuniuntur contra spoliatorem. {Every presumption is made against one loho spoils.) (32.) Omnia praesumuntur rite et sollenniter esse acta. {It is presumed that all the usual formalities have been complied with.) (33.) Omnis ratihabitio retrotrahitur et mandato priori cequi- paratur. {A ratification is taken back and made equivalent to a pirevious command.) (34.) Optima est lex qua? minimum relinquit arbitrio judicis, optimus judex qui minimum sibi. {The best system of law is that which leaves the least to the discretion of the judge ; the best judge is he who leaves the least to his own discretion.) (35.) Optimus legis interpres est consuetude {Custom is the best interpreter of law.) (36.) Potior est conditio possidentis. {There is a great advantage in being in possession.) (37.) Qui facit per alium, facit per se. {He who does a thing by another does it himself.) (38.) Qui hajret in litera heeret in cortice. {He who harps on the mere letter of a written instrument does not get at the pith of the matter.) APPENDIX B. 585 (39.) Qui non iniprobat, approbat. {Not blaming is equivalent to praising.) (40.) Qui prior est tempore, potior est jure. {The law favours the earlier in point of time.) (41.) Qui sentit cormnoduru, sentire debet et onus. {Benefit and burden ought to go hand in hand.) (42.) Quicquid plautatur solo, solo cedit. ( Whatever is planted in the ground becomes part of the ground.) (43.) Quilibet potest renunciare juri pro se introducto. {A man mag waive a right established for his own benefit.) (44.) Quod ab initio non valet, in tractu teniporis non con- valescit. {Time will not cure what is wrong from the beginning.) (45.) Quod fieri non debet factum valet. ( What ought never to have been done at all, if it has been done, mag be valid.) (46.) Quod subintelligitur, non deest. ( What is to be understood, is as good as if it ivere there.) (47.) 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.) (48.) Res inter alios acta alteri nocere non debet. {A man ought not to be prejudiced by what has taken place between others.) (49.) Ees judicata pro veritate accipitur. {The decision of a court of justice is assumed to be correct.) (50.) Respondeat superior. {A man must answer for his dependents.) (51.) Salus populi suprema lex. {The welfare of the State is the highest law.) (52.) Sic utere tuo ut alienum non laidas. {Make such a use of your own properly as not to injure your neighbour's.) (53.) Simplex commendatio non obligat. {A man is not obliged to cry stinking fish.) 586 APPENDIX B. (54.) Solvitur secundum modum solventis. (Payment is to be made as the payer pleases.} (55.) Spondes peritiam artis. (If your position implies skill, you must use it.) (56.) Ubi jus, ibi remedium. ( Where there is a right, there is a remedy.) (57.) Verba chartarum fortius accipiuntur contra proferentem. (The language of an instrument is to be taken strongly against the person ivhose language it is.) (58.) Verba generaHa restringuntur ad habilitatem rei vel persons. (General words are to be tied down and interpreted accord- ing to their context.) (59.) Vigilantibus non dormientibus jura subveniunt. (To get the laiv's help a man must not go to sleep over his own interests.) (60.) Volenti non fit injuria. (The man who is the author of his own hurt has no right to complain.) INDEX ABANDONMENT TO UNDERWRITERS, 210 et seq. ABROAD, contracts made or torts committed, 516 et seq. ABUSE OF LEGAL PROCESS, 131. ACCEPTANCE, proposal not binding till, 4 et seq. must be unqualified, 6. within 17th section of Statute of Frauds, 100 et seq. of rent effects waiver of forfeiture, 291. ACCIDENT, alteration of written contract by, 314. if inevitable, not actionable, 368. when occurrence of, primd facie evidence of negligence, 369. insurance against death by, 202. to servant, liability of master, 389 et seq. ACCORD AND SATISFACTION, 302. ACCOUNTABILITY, of partners inter se, 71. ACKNOWLEDGMENTS SAVING STATUTE OF LIMITATIONS, 316 et seq. ADMINISTRATION OF JUSTICE, contracts impeding, are void, 138, 143. ADMIRALTY, jurisdiction of Court of, as to salvage claims, 215. ADMISSIONS, 508. ADVERTISEMENT, contract by, 6. railway time-tables, 251 et seq. AFFIRMATIONS, by witnesses, when allowed, 158. may amount to warranties, 184. AFFIXING MOVEABLES TO FREEHOLD, 105. AGENTS. See Peincipal and Agent. 588 INDEX. AGISTER, rights and duties of, 232. AGRICULTURAL HOLDINGS ACT, 1883, provisions of, as to fixtures, 270. provisions of, as to notice to quit, 81. provisions of, as to goods privileged from distress, 271, 274. AIR, action for interference with, 354. ALTERATION OF TERMS between creditor and debtor releases surety, 307 et seq. ALTERATION OF WRITTEN CONTRACT, what, fatal to validity, 313 et seq. AMBASSADORS, goods of, cannot be distrained, 272. when Statute of Limitations runs in favour of, 318. AMBIGUITY, latent and patent, 176. ANCIENT DOCUMENTS, 503. ANCIENT LIGHTS, Prescription Act (2 & 3 Will. IV. c. 71), 351. open spaces, 352. different apphcation of premises, ib. enlargement, ib. abandonment, 353. suspension, ib. ANIMALS, ferce natures cannot be distrained, 272. dogs, ib. liability of owner for trespass of, 35S. " proper vice," 237. ANTE-NUPTIAL CONTRACTS, of wife, 38. ANTICIPATION, restraint on, 28. APPRENTICE, return of premium, 122, 213. APPROPRIATION, of chattels sold, 259, 262. of lost goods may amount to larceny, 448. APPROVAL, sale of goods on, 261. AQUARIUM, must not go to, on Sunday, 162. ARBITRATION, contract to refer to, 143 et seq. rights against barrister acting as arbitrator, 126. INDEX. 589 ARTIFICIAL WATERCOURSES, rights in, 350. ASSAULT, master responsible for, if committed by servant within general scope of authority, 409. in defence of, or to regain, freehold premises, 445. ASSIGNMENT, of insurance policy, 202. of chose in action, 293 et seq. of lease, 292. of bill of lading, 268. of salaries, 135. ATHEISM, 155 et seq. ATTORNEY, powers of, 518 ATTORNMENT CLAUSE IN MORTGAGE, 75. AUCTIONEER, cannot sue on contract he has signed as agent, 92. bidding revocable before hammer falls, 4. liable for conversion, 456. lots at auction knocked down to same person, 98. unauthorized statements of, 41. when seller has the right to bid, 5. AVERAGE, general, 218. particular, 219. AVOIDANCE OF CONTRACT, by reason of impossibility of performance, 170 et seq. BACCARAT, is unlawful, 169. BAILIFFS, who may act as, 275. BAILMENTS, 225 et seq. BANKER, bound to honour customer's cheque, 348. mistake as to customer's account, 129. lien of, 162. BANKRUPT, contract by, on new consideration, to pay old debt, 126. infant cannot be made, 17. BARRISTER, when, may sue for fee, 43, 126. speeches of, privileged, 462. not liable for negligence, 43. BETTING, 163 et seq. BETTING AND LOANS (INFANTS) ACT, 1892.. 16. 590 INDEX. BILLS OF EXCHANGE, consideration of, 120. taking overdue, 113. notice of dishonour, 114. alteration of, 315. definition of, 111. BILLS OF LADING, 269. BILLS OF SALE, cannot be given for sum under 307., 285 et seq. must be attested and registered, ib. consideration must be truly set forth, ib. must be in accordance with prescribed form, ib. must have schedule containing inventory attached, ib. BLASPHEMY, 156. BOARD AND LODGING, not an " interest in land," 95. BOARDING HOUSE, is not an inn, 236. BORROWING, 228. BOUGHT AND SOLD NOTES, 92. BREACH OF PROMISE TO MARRY, promise need not be in writing, 329. corroboration of plaintiff's evidence necessary, ib. defences, 328. damages, 330. married man may be sued for, 329. infant not liable for, ib. BRIBERY, agent accountable to principal for bribes, 45. BROKER, may bind parties within Statute of Frauds, 9 1 . may be liable as principal, 59. person buying from, not allowed to set off against principal, 55. transactions on Stock Exchange, 167. right of, to recover differences, 45. right of, to commission, 137. BUILDING. See Ancient Lights. BUILDING CONTRACTS, 222. BUILDING SOCIETIES, compulsory reference in the case of, 146. CAB OWNER, liability for negligence of driver, 407. CALLS ON SHARES, liability of infant to pay, 17. CAMPBELL'S (LORD) ACT, 493. INDEX. 591 CANCELLATION OF BILLS OF EXCHANGE, 315. CANDIDATE, agreement to appoint, by subscribers to charity, 134. CARELESSNESS OF BAILEE, 226. loss of money through, 129. CARRIAGE, accident owing to defective, 367. master's liability for driver's negligence, 405. CARRIERS, common, are insurers, 238. Land Carriers Act (11 Geo. IV. & 1 Will. IV. c. 68), 240, 243. Railway and Canal Traffic Act (17 & 18 Vict. c. 31), 240. of passengers, liability of, 251. Sec also Railway Company. as agents of vendees, 103. hen of common, 162. CHAMPERTY, 135. CHARACTER, of servant may be privileged communication, 463. evidence of, though hearsay, 504. impeaching, of girl in seduction case, 427. CHARITY, agreement as to voting by subscribers to, 134. gifts to, not within 27 Elk. c. 4. .289. CHEMISTS, law regulating, 127. CHEQUE, refusal of banker to honour, 348. alteration of, 313. cashing of, by banker through mistake, 129. CHILDREN, parent's liability to support, 126. contributory negligence of, 378. contracts of infants, 10 et seq. CHOSE IN ACTION, assignment of, 293 et seq. CHRISTIANITY, part of the law of England, 155 et seq. immorality, 141. Sunday contracts, 160 et seq. cremation, 158. Jews in Parliament, ib. CLAIM OF RIGHT, 477. CLERGYMAN. See Atheism and Simony. CLERK. See Master and Seevant. CLIENT, rights of, against legal adviser, 120. lien of solicitor on papers of, 162. 592 INDEX. CLOAK-ROOM, liability of railway company for articles deposited at, 249. CLUBS, liability of members on contracts, 43. betting by members of, 168. COHABITATION, past, no consideration, 126. future, illegal consideration, ib. liability of man for contracts of kept woman, 37- COLLISIONS AT SEA, 376. COMBINATIONS in restraint of trade, 150. COMMERCIAL TRAVELLER, lien of innkeeper on goods of, 235. COMMOBATUM, 228. COMMON EMPLOYMENT, doctrine of, 390. Employers' Liability Act, 1880.. 391. volunteers, 396. COMPANY. See Coepoeations. COMPENSATION, covenant to pay, 145. for damage by rioters, 389. COMPROMISE OF CLAIM, is a valid consideration, 119. COMPULSION, agreement made under, 216. payment made under, 123. references under, 145. CONCEALMENT, of defects in contracts of sale, 433. from insurers, 208 et seq. CONDITIONS PRECEDENT, 143, 195. CONDUCT, estoppel by, 533. CONSENT, reality of, 128—132. CONSIDERATION, when necessary, and what is sufficient, 118. money recoverable for failure of, 122. moral, 125 ct seq. past, 123 et seq. illegal, 136. continuing, 125. necessary to bond in restraint of trade, 147. of guaranties, 89. of bills and notes, 120. of bills of sale, 285. INDEX. 593 CONSTRUCTION OF WRITTEN CONTRACTS, 181 etseq. CONSTRUCTIVE TOTAL LOSS, 211. CONTRACT OF SALE, operation of, 257 et seq. CONTRACTOR, employer of, not generally responsible for negligence of, 400 et seq. CONTRIBUTION, between co-sureties, 312. no, between "wrong -doers, 488. CONTRIBUTORY NEGLIGENCE, founded on volenti nonjit injuria, 374. "wben plaintiff may recover in spite of, ib. doctrine of identification, 377. of cbildren, 378. of parents, 380. of guest staying at inn, 234. CONVERSION, what amounts to, 454. innocence of defendant no excuse, ib. COPYRIGHT, 435. CORPORATION, must generally contract by seal, 22 et seq. exceptions to rule, ib. Public Healtb Act, 1875, ib. not a " person," ib. contracts ultra vires, 139. liable for malicious prosecution, 488. projected liability of members of, 68. CORROBORATION, necessary of promise to marry, 329. COUNSEL. See Baebisteb. COUNTY COUNCILLOR, slander by, 464. COVENANTS, running -with land, 297 et seq. waiver of breach of, 290 et seq. to repair, 199. collateral, 144. COVERTURE, affects women's rights to contract, 28. CREDIT, effect of sale of goods on, 318. given to married woman, 36. agent, 48. CREDITORS, GIFTS DEFRAUDING, 286. CREMATION, 158. S. — C. Q Q 594 INDEX. CROPS, contracts for sale of, when within 4th section of Statute of Frauds, 93. distraining, 270. CROWDS, responsibility for collecting, 366. CUMULATIVE PENALTIES, 475. CUSTOM, evidence of, to explain or add incidents to written contracts, 178 et seq. conditions of, valid, 180. DAMAGE, caused by rioters, 389. consequential, 362 et seq. remoteness of, ib. DAMAGES, measure of, in contract, 333 et seq. measure of, in tort, 491 et seq. for breach of promise of marriage, 330. DAMNUM SINE INJURIA, 347. DANGEROUS PREMISES, 381 et seq. DANGEROUS SUBSTANCES, carriers need not receive, 238. brought on land, responsibility for, 356 et seq. DEATH, of tort-feasor, rights against his representatives, 351. of principal revokes agent's authority, 35. presumption of, 525 et seq. DEBENTURES, when an " interest in land," 95. DEBT, assignment of, 293 et seq. relincpoishment of, not payment within Statute of Frauds, 103. interest on, when chargeable, 338. "DEBT, DEFAULT, OR MISCARRIAGE," 83 et seq. DECEASED PERSONS, declarations of, when evidence, 505 et seq. DECEIT, action for, 428 et seq. DECREE NISI, 30. DEDICATION OF WAT TO PUBLIC, 511. DEED, acknowledged by married woman, 29. consideration not necessary, 118. illegality vitiates, 137 et seq. defrauding creditors, 285 et seq. estoppel by, 532. solicitor's lien on, 162. INDEX. 595 DEFAMATION, slander and libel, 457 et seq. privileged communications, 462 et seq. publication to third party, 459. Acts of 1881 and 1888 as to libels in newspapers, 460. DEFECT, latent, 367, 383. general warranty does not extend to an obvious, 185. BEL CREDERE AG-ENT, his undertaking not within Statute of Frauds, 86. DELEGATION of agent's authority, 41. DELIVERY, within the Statute of Frauds, 100 et seq. DELUSIONS, contracts by persons subject to, 20. DENTISTS, law regulating, 127. BEPOSITUM, 226. DEROGATION, from grant, 353. DESCRIPTION, warranty on sale of goods by, 193. when property passes on sale of goods by, 262. DEVIATION, in building contracts, 222. of ship, 213. of servant in respondeat superior case, 405. DIFFERENCES ON STOCK EXCHANGE, broker's right to recover from principal, 45. DIRECTORS, liability of, for secret profits, 46. DISCHARGE OF CONTRACTS, accord and satisfaction, 302. tender, 305. DISCHARGE OF SERVANTS, 322 et seq. DISEASE, communication of venereal, 141. DISHONOUR, NOTICE OF, when excused, 114 et seq. DISHONOURED BILL, negotiation of, 113. DISMISSAL, WRONGFUL, action for, 322 et seq. Q Q 2 596 INDEX. DISTRESS, things privileged, 2G9 et seq. trespass ab initio, 274, 440 et seq. mortgagee's power of, 75. removal of goods to avoid, 275. Act of 1888 (51 & 52 Vict. c. 21), 275, 441. DIVERTING STREAM, 349. DIVISIBLE CONTRACTS, 221. DIVORCE, restores woman to position of feme sole, 29. right of, governed by domicile, 519. DOCUMENTS OF TITLE, what are, within Factors Act, 1889. .55. DOGS, may be distrained, 272. bites of, responsibility of owners for, 359. alleged right to keep ferocious dog, ib. DOMICIL, 523. BONATIONES, inter vivos, 279. mortis causa, 284. DORMANT PARTNERS, 64. DOUBLE VALUE, action for, 83. DRAINAGE, defective, on lease of house, 198. DRUGGISTS, law regulating, 127. DRUNKARDS, contracts of, 21. DURESS, contract obtained by, 21. DUTY, of partner to firm, 71. EARNEST, 103. ECCLESIASTICAL MATTERS, evidence admissible in, 502. EDUCATION, of infant, 12. ELECTION, by subscribers to charity, 134. ELECTRICITY, liability for damage caused by, 357. INDEX. 597 EMERGENCY, when agent can employ sub -agent in case of, 41. EMPLOYERS' LIABILITY ACT, 1880. .391 et seq. ENGINES, damage from sparks of, 413. ENTRIES, by persons since deceased, when evidence, 505 et seq. ESTOPPEL, by record, 529 et seq. by deed, 532. by conduct, 49, 533. by negligence, 535. of partners, 67. EVIDENCE, hearsay, 499 et seq. declarations by persons since deceased, 505 et seq. presumptions of death, 525 et seq. oral, to explain or vary written contracts, 174 et seq. of custom, 178 et seq. separate documents containing contract cannot be connected by oral evidence, 106 et seq. of plaintiff in breach of promise case must be corroborated, 329. EXECUTED CONSIDERATION, when it will support a promise, 123 et seq. EXECUTION, 445. EXPULSION, of partner, 70. EXTORTION. See Dubess. EXTRAS, in building contracts, 222. FACTORS, set- off against principal, 52. FACTORS ACTS (6 & 7 Geo. TV. c. 94 ; 5 & 6 Vict. c. 39 ; 40 & 41 Vict. c. 39 ; and 52 & 53 Vict. c. 45), 55. FAILURE OF CONSIDERATION, 122. FALSE IMPRISONMENT, action for, 481 et seq. FALSE REPRESENTATION. See Feaud. FEAR. See Dtjbess. FEES, right to sue for, 126. 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" Complete, accurate, and easy of reference." — Solicitors' Journal. " Clear, concise, accurate, and exhaustive." — Law Times. " Leake treats the subject from every point of view in which it can interest the litigant." — Sir Wm. Anson. Pollock's Principles of Contract. — Being a Treatise on the General Principles relating- to the Validity of Agreements in the Law of England. Sixth Edition. By Sir Frederick Pollock, Bart., Bar- rister-at-Law, Author of "The Law of Torts," "Digest of the Law of Partnership," &c. DemySvo. 1894. 28s. Smith's Law of Contracts.— Eighth Edition. By V. T. Thompson, E3q., Barrister-at-Law. Demy 8vo. 1885. 1/. Is. %* All standard Law Works are kept in Stock, in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. 7 CONVEYANCI NG.— Dart. — Vide " Vendors and Purchasers." Greenwood's Manual of Conveyancing. — A Manual of the Practice of Conveyancing, showing the present Practice relating to the daily routine of Conveyancing in Solicitors' Offices. Eighth Edition. Edited by Harry Greenwood, M.A., LL.D., Esq., Bar- rister-at-Law. Demy 8vo. 1891. 16*. "A complete guide to Conveyancing Where and how the author ohtained his information is a perfect puzzle to us, and no conceivable state of affairs seems to have been left unprovided for." — Law Gazette. " We should like to see it placed by his principal in the hands of every articled clerk. One of the most useful practical works we have ever seen."— La w Students' Journal. Morris's Patents Conveyancing. — Being a Collection of Precedents in Conveyancing in relation to Letters Patent for Inventions. With Dissertations and Copious Notes on the Law and Practice. By Robert Morris, Esq., Barrister-at-Law. Royal 8vo. 1887. 11. os. "Well selected, well arranged, and thoroughly practical." — Law Times. Palmer's Company Precedents. — Eor use in relation to Companies subject to the Companies Acts, 1862 to 1890. Parti. Arranged as follows: — Promoters, Prospectus, Agreements, Underwriting, Memo- randa and Articles of Association, Private Companies, Employes' Benefits, Resolutions, Notices, Certificates, Powers of Attorney, Debentures and Debenture Stock, Banking and Advance Securities, Petitions, Writs, Pleadings, Judgments and Orders, Reconstruction, Amalgamation, Special Acts. With Copious Notes and an Appendix containing the Acts and Rules. Sixth Edit. By Francis Beaufort Palmer, assisted by Charles Macnaghten and Arthur John Chitty, Esqrs., Barristers-at-Law. Royal 8vo. 1895. 1^. 16*. Part II. Winding-Up and Arrangements. With Copious Notes, and an Appendix of Acts and Rules. Sixth Edition. By F. B. Palmer, assisted by Frank Evans, Esqrs., Bar- risters-at-Law. Royal Svo. 1896. [Nearly ready.) " No company lawyer can afford to be without it." — Law Journal. " The new edition of iJr. Palmer's work is a distinct improvement even upon its excellent and unrivalled predecessors, and we can confidently recommend it to the profession, and to all others interested in company law."— Law Times, Oct. 19, 1895. . Prideaux's Precedents in Conveyancing— With Dissertations on its Law and Practice. 1 6th Edit. By John Whitcombe and Bethune Horsbrugh, Esqrs., Barristers-at-Law. 2vols. RoyalSvo. 1895. 3/. 10s. " We adhere to the statement made when reviewing a previous edition, that ' Trideaux ' is the best work on Conveyancing. The manner in which it is kept up to date will make it more than ever a favourite with conveyancers."— Law Journal, April 27, 1895. , , «. ,,_ .. '■ A clerk who has but small legal knowledge can frame a draft correctly, it indeed the draft is to follow closely any of the precedents contained m tins book, with only a moderate amount of supervision from his principal."— Law Quartt rly I;. . . ui, July, 1895. . , . " Accurate, concise, clear, and comprehensive in scope, and we know ol no treatise upon Conveyancing which is so generally useful to the practitioner. — Law Times. , . „ Turners Duties of Solicitor to Client as to Partnership Agree- ments, Leases, Settlements, and Wills. — By Edward F. Turner, Solicitor. Demy Svo. 1884. 10s. Gd. COPYHOLD.— The Copyhold Act, 1 894. —With a short Introduc- tion, Notes, and Index.— By W. A. Pkck, Esq., Barrister-at-Law. Royal Svo. 1894. Ncl , ls - Gd - CORONERS.— Jervis on the Office and Duties of Coroners.— With Forms and Precedents. By R. E. Melsheimeb, Esq., Barrister- at-Law. Fifth Lilili'.n. I'ustsvo. isss. 10*. Gd. "The standard work on the subject."— Law Times. * * All standard Law Works are kept in Stock, in law calf d. CRIMINAL LAW.— Archbold's Pleading and Evidence in Criminal Cases, — With the Statutes, Precedents of Indictments, &c, and the Evidence necessary to support them. Twenty-first Edition. By William Bruce, Esq., Stipendiary Magistrate for the Borough of Leeds. Royal 12mo. 1893. 1/. lis. 6d. Chitty's Collection of Statutes relating to Criminal Law, — ^Re- printed from "Chitty's Statutes.") With an Introduction and Index. By W. F. Craies, Esq., Barrister-at-Law. Royal Svo. 1894. 10s. Disney and Gundry's Criminal Law, — A Sketch of its Principles and Practice. By Henry W. Disney and Harold Gundry, Esqrs., Barristers -at -Law. Demy Svo. 1895. 7s. 6d. "We think we have here just what students want. The work is based upon a perfect knowledge of the statute law, and is compiled from the best and most recent authorities."— Lam Tim s, Aug. 3, 1895. " The book is well written and arranged, and will be found useful by students, and by persons who desire to gain a general acquaintance with the criminal law." —Solicitors' Journal, Oct. 5. 1895. Roscoe's Digest of the Law of Evidence in Criminal Cases. — Eleventh Edition. By Horace Smith and Gilbert George Ken- nedy, Esqrs., Metropolitan Magistrates. Demy Svo. 1890. ll.lls.6d. "To the criminal lawyer it is his guide, philosopher and friend. What Roscoe says most judges will accept without question." — Law Times. Russell's Treatise on Crimes and Misdemeanors. — Sixth Edit. By Horace Smith, Esq., Metropolitan Police Magistrate, and A. P. Perceval Keep, Esq., Barrister-at-Law. 3vols. Roy. 8vo. 1896. (Nearly ready.) hi. 15s. 6d. Shirley's Sketch of the Criminal Law, — By W. S. Shirley, Esq., Barrister-at-Law. Second Edition. By Charles Stephen Hunter, Esq., Barrister-at-Law. Demy Svo. 1889. 7s. 6d. Warburton. — Vide "Leading Cases." Thring, — Vide "Navy." DEATH DUTIES— Freeth's Guide to the New Death Duty charge- able under Part I. of the Finance Act, 1894. with an Introduction and an Appendix containing the Act and the Forms issued for use under it. Re-issue with Revised Forms. By Evelyn Freeth, Deputy- Controller of Legacy and Succession Duties. Demy Svo. 1895. 7s. 6d. " The official position of the Author renders his opinion on questions of proce- dure of great value, and we think that this book will be found very useful to solicitors who have to prepare accounts for duty." — Solicitors' Jour. * # * All standard Law Works are kept in Stock, in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. 9 DEATH DUTIES— continued. Harman's Finance Act, 1894. so far as it relates to the Death Duties, and more especially the New Estate Duty. With an Introduction and Notes, and an Appendix of Forms. By John Eustace Har- mas, Esq.. Barrister-at-Law. Royal 12mo. 1894. 5a. " This book gives a very concise account of the old death duties, followed by a short account of the new estate duty, as an introduction to the Finance Act, 1894. . . . with explanatory notes." — Solicitor.?' Journal. Lely and Craies' Finance Act, 1894 (57 & 58 Vict, c, 30),— With Notes and Index, and an Introduction specially directed to the Death Duties as affected by the Act. By J. M. Lely and W. F. Craies, Esqrs., Barristers-at-Law. Royal 8vo. 1894. Net Is. DECISIONS OF SIR GEORGE JESSEL— Peter's Analysis and Digest of the Decisions of Sir George Jessel ; with Notes, &c. By Apsley Petre Peter, Solicitor. Demy 8vo. 1883. 16s. DIARY,— Lawyers' Companion (The) and Diary, and London and Provincial Law Directory for 1896, — Eor the use of the Legal Profession, Public Companies, Justices, Merchants, Estate Agents, Auctioneers, &c, &c. Edited by Edwin Layman, Esq., Barrister-at- Law ; and contains Tables of Costs in the High Court of Judicature and County Court, &c. ; Monthly Diary of County, Local Government, and Parish Business : Oaths in Supreme Court ; Summary of Sta- tutes of 1895 ; Alphabetical Index to the Practical Statutes since 1820; Schedule of Stamp Duties; Legal Time, Interest, Discount, Income, Wages and other Tables ; the New Death Duties ; and a variety of matters of practical utility : together with a complete List of the English Bar, and London and Country Solicitors, with date of admission and appointments. Published Annually. Fiftieth Issue. Issued in the following forms, octavo size, strongly bound in cloth : — 1. Two days on a page, plain ....... os.Od. 2. The above, interleaved for Attendances . . . .70 3. Two days on a page, ruled, with or without money columns . 5 6 4. The above, with money columns, interleaved for Attendances . 8 5. Whole page for each day, plain . . . . . .76 6. The above, interleaved for Attendances . . . .96 7. Whole page for each day, ruled, with or without money columns 8 6 8. The above, interleaved for Attendances . . . 10 6 9. Three days on a page, ruled blue lines, wdthout money columns . 5 The Diary contains memoranda of Legal Business throughout the Y< ar. " Combines everything required for reference in the lawyer's office." — Law Times. "The amount of information packed within the covers of this well-known book of reference is almost incredible. In addition to the Diary, it contains nearly 800 pages of closely print < -d matter, none of which could be omitted without, perhaps, detracting from the usefulness of the book. The publishers Beem to have made it their aim to include in the Compani ation •which the most exacting lawyer could reasonably expect to find in it- | and it may safely be said thai no p eedthe luxury of having it at his elbow, will ever be likely to try to do without it."— Law Journal. DICTIONARY,— The Pocket Law Lexicon.— Explaining Technical Words, Phrases and Maxims of the English, Scotch and Roman Law, to which is added a complete Lisl of Law Reports, with their Ab viations. Third Edit. By Hbnby G. Rawson ai i \nt, Esqrs., Barristers-at-Law. Fcap. 8vo. "A wonderful little legal Dictionarj ." *»* All standard Law Worksart kept in Stock, i« km ealj and other bii 10 STEVENS AND SONS, LIMITED, DICTIONARY— continued. Wharton's Law Lexicon. — Forming an Epitome of the Law of Eng- land, and containing full Explanations of the Technical Terms and Phrases thereof, both Ancient and Modern ; including the various Legal Terms used in Commercial Business. Together with a Trans- lation of the Latin Law Maxims and selected Titles from the Civil, Scotch and Indian Law. Ninth Edition. By J. M. Lely, Esq., Barrister-at-Law. Super-royal 8vo. 1892. 1/. 18s. " On almost every point both student and practitioner can gather information from this invaluable book, ■which ought to be in every lawyer's office." — Gibson's Law Notes. " One of the first books ■which every articled clerk and bar student should pro- cure." — Law Students' Journal. DIGESTS. — Campbell's Ruling Cases. — Arranged, Annotated, and Edited by Robert Campbell, Esq., Barrister- at- Law, Advocate of the Scotch Bar, assisted by other Members of the Bar. With American Notes by Irving Browne, formerly Editor of the American Reports. Vols. I. to V. Abandonment — Conflict of Laws. Royal 8vo. 1S94-1895. Half vellum, net, each 25s. Vol. VI. — Contracts. {Nearly ready.) Igg* Subscription for Five Volumes, paid in advance, £1 per Volume. Plan of the Work. It is intended in this Work to collect and arrange in alphabetical order of subjects all the useful authorities of English Case Law from the earliest period to the present time on points of general application. The matter under each alphabetical heading is arranged in sections, in an order indicated at the commencement of the heading. The more im- portant and Ruling Cases are set forth at length, subject only to abridg- ment where the original report is unnecessarily diffuse. The effect of the less important or subordinate cases is stated briefly in the Notes. The aim of the Work is to furnish the practitioner with English Case Law in such a form that he will readily find the information he requires for ordinary purposes. The Ruling Case will inform him, or refresh his memory, as to the principles ; and the Notes will show in detail how the principles have been applied or modified in other cases. The American Notes, by Mr. Irving Browne, are intended primarily for American use ; but it is also considered that, particularly on some points which have been much discussed in American cases, they may be of considerable value to practitioners here and in the Colonies. Each volume of the Work will contain an Alphabetical Table of Cases. It is estimated that the Work will be completed in about 25 Volumes. !gU° An Annual Addendum will be issued, containing , under the appropriate title and rule, Xotes of Cases published since the issue of Volume I., thus bringing all the Volumes then published up to date, and a general Index will be issued on publication of the first 10 Volumes. "Vol. V. of Ruling Cases is by far the most important yet issued. This will be apparent to the most casual reader when we say it extends from Bills of Sale to Conflict of Laws, and includes both, necessarily therefore embracing such headings as Bond, Carrier, Certiorari, Charitable Trust, Charter-party, and Church. The rapidity and fulness which mark this compilation are remarkable. As the work grows it is seen to be a perfect storehouse of the principles estab- lished and illustrated by our case lawandthatof the United States." — Law T m , Nov. 23, 1895. " The general scheme appears to be excellent, and its execution reflects the greatest credit on everybody concerned. It may, indeed, be said to constitute, for the present, the high-water mark of the science of book-making." — Saturday Review, July 21, 1894. " By this time this series has become so widely known, and doubtless appre- ciated, that it becomes unnecessary to do much more than chronicle the appear- ance of the new volume, to state the contents, and to say that its workmanship is quite up to the former level." — Law Journal, July 13, 1895. %* All standard Law Works are kept in Stock, in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. 11 . DIGESTS — continued. O Chittys Index to all the Reported Cases decided in the (jH several Courts of Eqiuty in England, the Privy Council, and the 4J House of Lords, with a selection of Irish Cases. Fourth Edition. A By Henry Edwarb Hiest, Esq., Barrister-at-Law. 9 vols. Roy. 8vo. 1883-89. (Published at VII. 12s.) Reduced to net, 51. 5s. © *,* The volumes sold separately. Each net, 15s. 3 "A work indispensable to every bookcase in Lincoln's Inn." — Law Quar. Rev. & " The practitioner can hardly afford to do ■without such a weapon as Mr. Hirst O supplies, because if he does not use it probably his opponent will." — Law Journal. Dale and Lehmann's Digest of Cases, Overruled, Not Followed, 2 Disapproved, Approved, Distinguished, Commented on and u specially considered in the English Courts from the Year 2 1756tol886 inclusive, and a complete Index of the Cases, in which ■g are included all Cases reversed from the year 1856. By Chas. Wm. to Mitcaxfe Dale, and Rudolf Chambers Lehmann, assisted by Chas. ■2 H. L. Neish, and Herbert H. Chilb, Esqrs., Barristers-at-Law. ro - Royal 8vo. 1887. (Published at 21. 10s.) Reduced to net, 25s. -£ " One of the best works of reference to be found in any library."— Law Times. (D "The book is divided into two parts, the first consisting of an alphabetical index .5j) of the cases containedin the Digest presented in a tabular form, showing at a glance p how, where, and by what judges they have been considered. The second portion of the book comprises the Digest itself, and bears marks of the great labour and ® research bestowed upon it by the compilers." — Law Journal. j5 Fisher's Digest of the Reported Decisions of the Courts of *» Common Law, Bankruptcy, Probate, Admiralty, and Divorce, "g together with a Selection from those of the Court of Chancery and Irish Courts from 1756 to 1883 inclusive. By J. Mews, assisted •| by C. M. Chapman, H. H. W. Sparham, and A. H. Tobb, Esqrs. A 7 vols. Roy. 8vo. 1884. (Published at 12/. 12s.) Reduced to net, 51. 5s. £ "Tothecommon lawyer it is the most useful work he can possess." — LawTimes. ® Mews' Consolidated Digest of all the Reports in all the Courts. IH for the Years 1884-88 inclusive.— By J. Mews, Esq., Barrister - at-Law. Royal Svo. 1889. (Published at 31s. 6^.) Reduced 'to net, 15s. The Annual Digest for 1894. By John Mews, Esq., Barrister-at- Law. Royal 8vo. 15s. The Law Journal Quarterly Digest. — A Concise Alphabetical Digest of all the Cases Reported in the Law Journal Reports and Notes of Cases, the Law Reports and Weekly Notes, the Law Times Reports and Law Times Newspaper, the Weekly Reporter and Solicitors' Journal, and the Times Law Reports ; with numerous Cross-Refer- ences and a Complete Table of Cases. Parts I., II. and 11 1 . 1895. *#*" Subscription per annum, post free, 7 each 2s. 6d. " Here we have a complete and compendious summary of current case law, enabling the practitioner to discover at a glance whether in all the multifarious literature of reported cases from the Times' Law Reports or tin' Law Times note to the finished product of the reporter in the] Reports, there is anything 'which concerns him." — Law Q », July, 1895. Talbot and Fort's Index of Cases Judicially noticed (1865—1890); being a List of all Cases cited in Judgments reported from Michael- mas Term, 1865 to the end of 1890, with the places where they are so cited. — By George John Talbot and Hugh Port, Esqrs., Barristers-at-Law. Royal Svo. 1891. 25s. " This is an invaluable tool for the worker among cases."— Solicitors' Journal. DISCOVERY— Sichel and Chance's Discovery.— The Law- relating to Interrogatories, Production, Inspection of Documents, and Dis- covery, be Superior as in the Inferior Courts, together with an Appendix of Hie Acts, Formi and Orders. By Wai/eerS. SioheIi. and Wji.mam< ii ■ ■■ E,E ^i s., Hun i>',( rs-Hf-Ln\v. D» law calf and other Undings. 12 STEVENS AND SONS, LIMITED, DISTRESS.— Oldham and Foster on the Law of Distress. — A Treatise on the Law of Distress, with an Appendix of Forms, Table of Statutes, &c. Second Edition. By Arthur Oldham and A. La Trobe Foster, Esqrs., Barristers-at-Law. Demy 8vo. 1889. 18s. "'this is a useful book, because it embraces the whole range of the remedy by distress, not merely distress for rent, but also for damage feasant, tithes, poor and highway rates and taxes, and many other matters." — Solicitors' Journal. DISTRICT COUNCILS.— Chambers' Digest of the Law relating to District Councils, so far as regards the Constitution, Powers and Duties of such Councils (including Municipal Corporations) in the matter of Public Health and Local Government. Ninth Edition. — By George F. Chambers, Esq., Author of "A Digest of the Law relating to Public Libraries," "Local Rates," "A Handbook for Public Meetings," and other Works. Royal 8vo. 1895. 10.?. DIVORCE. — Browne and Powles' Law and Practice in Divorce and Matrimonial Causes. Fifth Edition. By L. D. Powles, Esq., Barrister-at-Law. Demy 8vo. 1889. 1/. 6s. "The practitioner's standard work on divorce practice." — Law Quarterly Review. Kelly's French Law. — Vide "Marriage." DOGS. — Lupton's Law relating to Dogs. — By Frederick Ltjpton, Solicitor. Royal 12mo. 1888. 5s. EASEMENTS. — Goddard's Treatise on the Law of Easements. — By John Leybourn Goddard, Esq., Barrister-at-Law. Fourth Edition. Demy 8vo. 1891. 11. Is. "Nowhere has the subject been treated so exhaustively, and, we may add, so scientifically, as by Mr. Goddard. We recommend it to the most careful study of the law student, as well as to the library of the practitioner." — Law Times. Innes' Digest of the Law of Easements, Fifth Edition. By L. C. Innes, lately one of the Judges of Her Majesty's High Court of Judicature, Madras. Royal 12mo. 1895. 7s. 6d. " Constructed with considerable care and pains." — Law Journal. "A useful companion to the fuller treatises on the law of easements."— Solicitors' Journal, Oct. 5, 1S95. "Very useful for those specially studying the law of Easements." — Law Students' Journal, July, 1895. ' • W( i have only the pleasing duty remaining of recommending the book to those in search of a concise treatise on the law of Easements." — Law Notes, July, 1895. ECCLESIASTICAL LAW— Phillimore's Ecclesiastical Law of the Church of England. By the late Sir Robert Phillimore, Bart., D.C.L. Second Edition, by his son Sir Walter George Frank Phillimore, Bart., D.C.L., assisted by C. F. Jemmett, B.C.L., LL.M., Barristers-at-Law. 2 vols. Royal 8vo. 1895. SI. 3s. Whitehead. — Vide " Church Law." ELECTION IN EQUITY.— Sen-ell's Equitable Doctrine of Election. By George Serrell, M.A., LL.D., Esq., Barrister-at- Law. Royal 12mo. 1891. 7s. 6d. ELECTIONS.— Day's Election Cases in 1892 and 1893.— Being a Collection of the Points of Law and Practice arising out of the Parliamentary Election Petitions in those Years, together with Reports of the Judgments. By S. H. Day, Esq., Barrister-at- Law, Editor of "Rogers on Elections." Royal 12mo. 1894. 7s. Gd. Hedderwick's Parliamentary Election Manual : A Practical Handbook on the Law and Conduct of Parliamentary Elections in Great Britain and Ireland, designed for the Instruction and Guidance of Candidates, Election Agents, Sub- Agents, Polling and Counting Agents, Canvassers, Volunteer Assistants, and Members of Political Clubs and Associations. By T. C. H. Hedderwick, Esq., Barrister-at-Law. Demy 12mo. 1892. 7s. 6d. " Clear and well arranged." — Law Quarterly Review. *** All standard Law Works are kept in Stock, in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. 13 ELECTIONS— continued. Rogers' Law and Practice of Elections. — Vol. I. Registration, including the Practice in Registration Appeals; Parliamentary, Municipal, and Local Government; with Appendices of Statutes, Orders in Council, and Forms. Fifteenth Edition. With Addenda of Statutes to 1894. By Maurice Powell, Esq., Barrister-at-Law. Royal 12mo. 1?. 1*. " The practitioner will find within these covers everything which he can be expected to know, well arranged and carefully stated." — Law Times. Vol. II. Paeliamentaey Elections and Petitions ; with Appen- dices of Statutes, Rules and Forms. Seventeenth Edition. By S. H. Day, Esq., Barrister-at-Law. Royal 12mo. 1895. 11. Is. Vol. III. Municipal and othee Elections and Petitions, with Appendices of Statutes, Rules, and Forms. Seventeenth Edit. By Samuel H. Day, Esq., Barrister-at-Law. Royal 12mo. 1894. 1/. Is. This Volume treats of Elections to Municipal Councils [in luding the City of London), C lis, Parish Councils, Rural and Urban District Councils, Boards of Guardians [within and without London), Metropolitan Vestries, School Bow, "The leading book on the difficult subjects of elections and election peti- tions." — /. " A very satisfactory treatise on election law . . . ." — Solicitors' Journal. ENGLISH LAW.— Pollock and Maitland's History of English Law before the time of Edward I. — By Sir Feedeeick Pollock, Bart., and Feed. W. Maitland, Barristers-at-Law. 2 vols.roy.8vo. 1895. 2/. EQUITY, and Vide CHANCERY. Chitty's Index. — Vide "Digests." Kerly's Historical Sketch of the Equitable Jurisdiction of the Court of Chancery. — Being the Yorke Prize Essav for 1889. By D. M. Ejeely, M.A., St. John's College. Demy 8vo. "lSSO. 12*. 6d. Seton's Forms of Judgments and Orders in the High Court of Justice and in the Court of Appeal, having especial reference to the Chancery Division, with Practical Notes. Fifth Edition. By Cecil C. M. Dale, Esq., Barrister-at-Law, and W. Clowes, Ekj., a Registrar of the Supreme Court. In 3 vols. Boyal 8vo. 1891-3. 61. * # * The Volumes sold separately, 2/. each. "A monument of learned and laborious accuracy." — Law " Seton in its new guise is well up to the character which it has for so many years sustained of being the best book of forms of judgment." — Law! Smith's Manual of Equity Jurisprudence. — A Manual of Equity Jurisprudence for Practitioners and Students, founded on the Works of Story, Spence, and other writers, comprising the Fundamental Principles and the points of Equity usually occurring in General Practice. By Josiaii W. Smith, Q.C. Fourteenth Edition. By J. Teusteam, L'L.M., Esq., Barrister-at-Law. 12mo. 1889. 12*. 6d. Smith's Practical Exposition of the Principles of Equity, illus- trated by the Leading Decisions thereon. For the use of Students and Practitioners. Second Edition. By H. Arthur Smith, M.A., LL.B., Esq., Barrister-at-Law. Demy 8vo. 1888. 21*. "This excellent pn I 'ion of the principles of equity is a work one can well recommend to students either for the bar or the examinations of the Society. It will ah qually valuable to the busy prac- titioner, [t CO of information well arranged, and is i 11 u I by all the leading decisions." — J ESTOPPEL.— Everest and Strode's Law of Estoppel. By Lancelot Fiej.mno Evebest, and Edmund Strode, Esqrs., Barristcrs-at-Law. Demy 8vo. 1884. 18s. %* All standard Law Works are kept in Stock, in law calf and other bindings. 14 STEVENS AND SONS, LIMITED, EVIDENCE. — Wills' Theory and Practice of the Law of Evidence. — ByWtt.WiLLS, Esq., Barrister-at-Law. Demy8vo. 1894. I0s.6d. "It contains a large amount of valuable information, very tersely and accurately conveyed." — Law Times. " We consider that Mr. Wills has given the profession a useful book on a difficult subject." — Laiu Nbti s. EVIDENCE ON COMMISSION.— Hume-Williams and Macklin's Taking of Evidence on Commission: including- therein Special Examinations, Letters of Request, Mandamus and Examinations before an Examiner of the Court. By W. E. Hume-Williams and A. Romeb Macklin, Barristers-at-Law. Demy 8vo. 189.3. 12s. Gd. EXAMINATION GUIDES.— Bar Examination Guide. By H. D. Woodcock, andG. H. B. Keneick, Esqrs., Barristers-at-Law. Pub- lished after each Examination. Net 'Is. Gd. Bedford's Digest of the Preliminary Examination Questions, ■with the Answers. 2nd Ed. Svo. 1882. 18s. Haynes and Nelham's Honours Examination Digest, By John E. Haynes, LL.D., and Thomas A. Nelham, Solicitor. Demy 8vo. 1883. 15s. Napier & Stephenson's Digest of the Subjects of Probate, Divorce, Bankruptcy, Admiralty, Ecclesiastical and Criminal Law necessary to be known for the Final Examination, done into Questions and Answers. By T. Bateman Napiee and Richaed M. Stephenson, Esqrs., Barristers-at-Law. Demy Svo. 1888. 12s. Napier & Stephenson's Digest of the Leading Points in the Sub- ject of Criminal Law. Done into Questions and Answers. By T. Bateman Napiee and Richaed M. Stephenson, Esqrs., Barristers- at-Law. Demy 8vo. 1888. 5s. Shearwood's Guide for Candidates for the Professions of Barrister and Solicitor, — Second Edition. By Joseph A. Sheae- wood, Esq., Barrister-at-Law. Demy 8vo. 1887. 6s. Uttley's How to Become a Solicitor; or, Hints for Articled Clerks, — Showing- the necessary steps for getting- Articled, passing the Examinations, obtaining Admission, taking out Certificate to Practise ; Hints on Reading, Tables of Cases, Statutes and Books ; Articled Clerks in the Law Courts : Notes of recent Cases affecting them ; with Appendix, comprising many useful Eorms and all the Questions set at all the Examinations of 1893. By T. E. TJttley, Solicitor. Royal 12mo. 1894. 5s. EXECUTIONS. — Edwards' Law of Execution upon Judgments and Orders of the Chancery and Queen's Bench Divisions of the High Court of Justice. — By C. Johnston Edwaeds, Esq., Barrister-at-Law. Demy Svo. 188S. lGs. EXECUTORS. — Macaskie's Treatise on the Law of Executors and Administrators, and of the Administration of the Estates of Deceased Persons. With an Appendix of Statutes and Forms. By S. C. Macase^e, Esq., Barrister-at-Law. Svo. 1881. 10s. 6d. Williams' Law of Executors and Administrators. — Ninth Edition. By the Hon. Sir Roland Vattghan Williams, a Justice of the High Court. 2 vols. Roy. Svo. 1893. SI. 16s. "We can conscientiously say that the present edition -will not only sustain, but enhance the high reputation which the book has always enjoyed The want of a new edition has been distinctly felt for some time, and in this work, and in this work only, will the practitioner now find the entire law relating to executors and administrators treated in an exhaustive and authoritative fashion, and thoroughly brought down to the present date." — Law Journal. %* All standard Law Works are kept in Stock, in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C 15 EXTRADITION.— Kirch ner's L'Extradition — Recueil Renfermant in Extenso tous les Traites conclus jusqu'au ler Janvier, 1883, entre les Nations civilisees, et donnant la solution precise des difficultes qui peuvent surgir dans leur application. Avec une Preface de M e Georges Lachaud, Avocat a la Com* d'Appel de Paris. Publie sous les auspices de M. C. E. Howard Vincent, Directeur des Affaires Criminelles de la Police Metropolitaine de Londres. Par E. J. Kirchner, Attache a la Direction des Affaires Criminelles. In 1 vol. (1150 pp.). Royal 8 vo. 1883. 21. 2s. FARM, LAW OF. — Dixon's Law of the Farm: including- the Cases and Statutes relating to the subject ; and the Agricultural Customs of England and Wales. Eifth Edition. By Aubrey J. Spencer, Esq., Barrister-at-Law. Demy 8vo. 1892. 26s. " The book is well and carefully edited." — Law Journal. " A complete modern compendium on agricultural matters." — Law Times. FINANCE ACT.— Vide "Death Duties." FIXTURES. — Amos and Ferard on the Law of Fixtures and other Property partaking both of a Real and Personal Nature. Third Edition. By C. A. Eeeard and W. Howland Roberts, Esqrs., Bar- risters-at-Law. Demy 8vo. 1883. 18s. " An accurate and well written work." — Saturday Review. FORMS.— Archibald.— Vide " Chamber Practice." Bullen and Leake. — Vide " Pleading." 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INLAND REVENUE CASES.— Highmore's Summary Proceed- ings in Inland Revenue Cases in England and Wales.— Second Edition. By N. J. Highmore, Esq., Barrister-at-Law, and of the Solicitors' Department, Inland Revenue. Roy. 12mo. 1887. 7s. Gd. INSURANCE. — Arnould on the Law of Marine Insurance.— Sixth Edition. By David Maclachlan, Esq., Barrister-at-Law. 2 vols. Royal 8vo. 1887. 2,1. " As a text book, 'Arnould' is now all the practitioner can want." — Law Times. Lowndes' Practical Treatise on the Law of Marine Insurance. — By Richard Lowndes. Author of "The Law of General Average," &c. Third Edition. By Walter Lowndes. {In preparation.) McArthur on the Contract of Marine Insurance. — Second Edition. By Charles McArthur, Average Adjuster. Demy 8vo. 1890. 16*. " The work is carefully executed and brought down to date." — Law Journal. Tyser's Law relating to Losses under a Policy of Marine Insur- ance. — By Charles Robert Tyser, Esq., Barrister-at-Law. Demy 8vo. 1894. 10s. Gd. 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Emery's Complete Guide to the Parish and District Councils Act (Local Government Act, 1 894) ; with Rules for Elections and Polls, the Official Copy of the Act, and a very full Index. — By G. F. Emery, Esq., Barrister-at-Law, Author of a "People's Guide to the Parish Councils Act." Royal 8 vo. 1894. 4s. Humphreys' Parish Councils. — The Law relating to Parish Coun- cils, being the Local Government Act, 1894 ; with an Appendix of Statutes, together with an Introduction, Notes, and a Copious Index. Second Edition. By George Humphreys, Esq., Barrister- at-Law, Author of "The Law relating to County Councils," &c. Royal 8vo. 1895. 10s. " Mr. Humphreys may he said to have puhlished an edition tie, luxe, of the Act, which in form, paper, and print, surpasses the others which we have seen. His Introduction and Notes also are done fully and with great care, and the essential work of adequate cross referencing' and indexing has been done well." — Law Jour. Steer's Parish Law. Sixth Edition. By W. H. Macnamara, Esq., Barrister-at-Law. Demy 8vo. [In preparation.) PARTNERSHIP.— Pollock's Digest of the Law of Partnership; incorporating the Partnership Act, 1890. Sixth Edition. By Sir Frederick Pollock, Bart., Barrister-at-Law. Author of "Principles of Contract," "The Law of Torts," &c. Demy 8vo. 1895. 8s. 6^. " What Sir Frederick Pollock has done he has done well, and we are confident this book will be most popular as well as extremely useful." — Law Times. Turner. — Vide "Conveyancing." PATENTS. — Edmunds on Patents. — The Law and Practice of Letters Patent for Inventions ; with the Patents Acts and Rules annotated, and the International Convention, a full collection of Statutes, Forms, and Precedents, and an Outline of Foreign and Colonial Patent Laws, &c. By Lewis Edmunds, Q.C., Esq., assisted by A. Wood Renton, Esq., Barrist.-at-Law. Roy. 8vo. (992 pp.) 1890. U. 12s. " "We have nothing but commendation for the book." — Solicitors' Journal. " It would be difficult to make it more complete." — Law Times. Edmunds' Patents, Designs and Trade Marks Acts, 1883 to 1888, Consolidated with an Index. Second Edition. By Lewis Edmunds, Q.C., D.Sc, LL.B. Imp.Svo. 1895. Net 2s. 6d. Johnson's Patentees' Manual. — A Treatise on the Law and Practice of Patents for Inventions. Sixth Edition. By James John- son, Esq., Barrister-at-Law ; and J. Henry Johnson, Solicitor and Patent Agent. Demy8vo. 1890. 10s. Qd. Morris. — Vide " Conveyancing." Thompson's Handbook of Patent Law of all Countries. — By Wm. P. Thompson. Tenth Edition. 12mo. 1896. Net, 2s. 6d. PERPETUITIES. — Marsden's Rule against Perpetuities. — A Treatise on Remoteness in Limitation. By Reginald G. Marsden, Esq., Barrister-at Law. Demy 8vo. 1883. 16s. PERSONAL PROPERTY.— Smith.— Vide " Real Property." %* All standard Law Works are kept in Slock, in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. 23 PLEADING. — Bullen and Leake's Precedents of Pleadings, with Notes and Rules relating to Pleading-. Fourth Edition. By Thomas J. Bullen, Esq., Special Pleader, and Cyril Dodd, Esq., Barrister-at- Law. Part I. Statements of Claim. Royal 12mo. 1882. 11. 4s. Part II. Statements of Defence. By Thomas J. Bullen and C.W.Clifford, Esqrs., Barristers-at-Law. Royall2mo. 1888. HAs. Odgers' Principles of Pleading in Civil Actions, with observations on Indorsements on Writs, Trial without Pleadings, and other business Preliminary to Trial. — Second Edition. By W. Blake Odgers, LL.D., Q.C., Author of "A Digest of the Law of Libel and Slander." Demy 8vo. 1894. 10s. Qd. " The student or practitioner who desires instruction and practical guidance in our modem system of pleading cannot do better than possess himself of Mr. Odgers' book." — Law Journal. POISONS. — Reports of Trials for Murder by Poisoning. — With Chemical Introductions and Notes. By G. Latham Browne, Esq., Barrister- at-Law, andC. G. Stewart, Senior Assistant in the Labo- ratory of St. Thomas's Hospital, &c. Demy Svo. 1883. 12s. Qd. POWERS, — Farwell on Powers. — A Concise Treatise on Powers. Second Edition. By George Farwell, Esq., Q.C., assisted by W. R. Sheldon, Esq., Barrister-at-Law. Royal Svo. 1893. 11. bs. "We have looked through the volume with some care, and "we believe that the practitioner and the judge 'will find it comprehensive and complete." — Law Times. PRESCRIPTION.— Herbert's History of the Law of Prescription in England. — By T. A. Herbert, Esq., Barrister-at-Law. Demy 8vo. 1891. 10s PRINCIPAL AND AGENT.— Wright's Law of Principal and Agent. By E. B. Wright, Esq., Barrister-at-Law. Demy Svo. 1894. 18s. "Clearly arranged and clearly written. Completely up to date." — Law Times. " The work is remarkably complete." — Law Journal. " May with confidence be recommended to all legal practitioners as an accu- rate and handy text book on the subjects comprised in it." — Solicitors' Journal. PRINTERS, PUBLISHERS, &c— Powell's Laws specially affect- ing Printers, Publishers and Newspaper Proprietors. By Arthur Powell, Esq., Barrister-at-Law. Demy Svo. 1889. 4s. PRIVY COUNCIL LAW.— Wheeler's Privy Council Law: A Synop- sis of all the Appeals decided by the Judicial Committee (including Indian Appeals) from 1876 to 1891. Together with a precis of the Cases from tbe Supreme Court of Canada. By George Wheeler, Esq., Barrister-at-Law, and of the Judicial Department of the Privy Council. Royal Svo. 1893. 31s. Qd. "The cases are summarised with brevity and with the skill of a practised lawyer in seizing upon essential facts and legal points embodied in each case, and in distinguishing law and practice." PROBATE. — Powles and Oakley's Law and Practice relating to Probate and Administration. By L. D. Powles, Barrister-at- Law, and T. W. H. Oakley, of the Probate Registry, (Being a Third Edition of " Browne on Probate.") Demy 8vo. 1892. 11. 10s. PRO PE RTY— See also " Real Property." Raleigh's Outline of the Law of Property. — Demy3vo. 1890. 7s. Qd. Strahan's General View of the Law of Property. — Intended as a first book for Students. By J. A. Steahan, assisted by J. Sinclair Baxter, Esqrs., Barristers- at-Law. Demy Svo. 189.3. 12s. Qd. " A well written and useful work." — Law NoU <. "I here is no work that we know which we should more confidently place in the hands of one beginning the study of the law." — Law I %* All standard Law Works are kept in Stock, in law calf and other bindings. 24 STEVENS AND SONS, LIMITED, PUBLIC HEALTH.— Bazalgette and Humphreys.— Vide "Local and Municipal Government." Smiths Public Health Acts Amendment Act, 1890.— With Intro- duction and Notes. By Bovill Smith, M.A., Barrister-at-Law. Royal 12mo. 1891. 6s. PUBLIC MEETINGS.— Chambers' Handbook for Public Meet- ings, including - Hints as to the Summoning and Management of them. Second Edition. By George F. Chambers, Esq., Barrister- at-Law. Demy 8vo. 1886. Net, 2s. 6rf. QUARTER SESSIONS.— Archbold.— r«fe " Criminal Law." RAILWAY RATES.— Darlington's Railway Rates and the Carriage of Merchandise by Railway ; including 1 the Provisional Orders of the Board of Trade as sanctioned by Parliament, containing the Classification of Traffic and Schedule of Maximum Rates and Charges applicable to the Railways of Great Britain and Ireland. By H. R. Darlington, Esq., Barrister-at-Law. Demy 8vo. 1893. 11. 5s. RAILWAYS.— Browne and Theobald's Law of Railway Com- panies. — Being a Collection of the Acts and Orders relating to Railway Companies in England and Ireland, with Notes of all the Cases decided thereon, and Appendix of Bye-Laws and Standing Orders of the House of Commons. Second Edition. By J. H. Balfour Browne, Esq., one of Her Majesty's Counsel, and H. S. Theobald, Esq., Barrister-at-Law. Royal 8vo. 1888. 11. 15s. " Contains in a very concise form the whole law of railways." — The Times. RATES AND RATI NG.— Castle's Law and Practice of Rating.— Third Edition. By Edward James Castle, Esq., one of Her Majesty's Counsel. Demy Svo. 1895. 25s. " A sure and. safe guide, avoiding all speculation as to what the law might be."— Law Mag urine, May, 1895. " Mr. Castle's book has hitherto held a very high place, and the success that has attended it seems assured to the new edition." — Law Journal, May 18. 1895. " A compendious treatise, which has earned the goodwill of the Profession on account of its conciseness, its lucidity, and its accuracy."— Law Times, May 11, 1895. Chambers' Law relating to Local Rates; with especial reference to the Powers and Duties of Rate-levying Local Authorities, and their Officers; comprising the Statutes in full and a Digest of 718 Cases. Second Edition. By G. F. Chambers, Esq., Barrister-at- Law. Royal Svo. 1889. 10s. Qd. "A complete repertory of the statutes and case law of the subject." — Law Journal. REAL PROPERTY.— Digby's History of the Law of Real Pro- perty.— Fourth Edition. Demy 8vo. 1892. 12s. M. Leake's Elementary Digest of the Law of Property in Land, — Containing : Introduction. Part I. The Sources of the Law. — Part II. Estates in Land. By Stephen Martin Leake, Barrister- at-Law. Demy 8vo. 1874. Net, 15s. Leake's Digest of the Law of Property in Land, — Part III. The Law of Uses and Profits of Land. By Stephen Martin Leake, Barrister-at-Law. Demy Svo. 1888. Net, lbs. Or the above 2 vols, together. Net, 11. 5s. Lightwood's Treatise on Possession of Land : with a chapter on the Real Property Limitation Acts, 1833 and 1874. — By John M. Lightwood, Esq., Barrister-at-Law. Demy Svo. 1894. Ids. * # * All standard Law Works are kept in Stock, in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. REAL PROPERTY— continued. Shearwood's Real Property. — A Concise Abridgment of the Law of Real Property and an Introduction to Conveyancing. Designed to facilitate the subject for Students preparing for examination. By Joseph A. Shearwood, Esq., Barrister-at-Law. Third Edition. Demy 8vo. 1885. 8*. Qd. Shelford's Real Property Statutes. — Comprising the principal Statutes relating to Real Property passed in the reigns of King William IV. and Queen Victoria, with Notes of Decided Cases. Ninth Edition. By Thomas H. Carson, assisted by Haeold B. Bompas, Esqrs., Barristers-at-Law. Royal 8vo. 1893. 30s. " Absolutely indispensable to conveyancing 1 and equity lawyers." Smith's Real and Personal Property. — A Compendium of the Law of Real and Personal Property, primarily connected with Con- veyancing. Designed as a Second Book for Students, and as a Digest of the most useful learning for Practitioners. By Josiah W. Smith, B.C.L., Q.C. Sixth Edition. By the Author and J. Tetts- tram, LL.M., Barrister-at-Law. 2 vols. Demy 8vo. 1884. 11. 2s. " A book which he (the student) may read over and over again with profit and pleasure." — Law Times. " Will be found of very great service to the practitioner." — Solicitors' Journal. " A really useful and valuable work on our system of Conveyancing." — Lav Students' Journal. Strahan. — Vide "Property." REGISTRATION.— Rogers.— Tide "Elections." Coltman's Registration Cases.— Vol. I. (1879—1885). Royal 8vo. Calf. Net, 21. 8s. Fox's Registration Cases.— Vol. I., Part I. (18S6), net, 4s. Part II. (1887), net, 6s. 6d. Part III. (1888), net, 4s. Part IV. (1889), net, 4s. Part V. (1890), net, 5s. Qd. (In continuation of Coltman.) Smith's (C, Lacey) Registration Cases. (In continuation of Eox.) Vol. I., Part VI. (1891), net, 4s. Qd. Part VII. (1892-3), net, 4s. Part VIII. (1893-4), net, 5s. Part IX. (1894-5) Net 7s. Qd. %* Eos and Smith's Registration Cases, 1886 — 1895. Complete with Index, &c, in one volume. Calf, net, 21. 10s. Lawson's Notes of Decisions under the Representation of the People Acts and the Registration Acts, 1885 — 1893, inclu- sive. — By Wm. La wson, Barrister-at-Law. Demy 8vo. 1894. 24s. ROMAN LAW.— Abdy and Walker's Institutes of Justinian, Trans- lated, with Notes, by J. T. Abdy, LL.D., and the late Bryan Walker, M.A., LL.D. Crown 8vo. 1876. 16s. Abdy and Walker's Commentaries of Gaius and Rules of Ulpian. With a Translation and Notes, by J. T. Abdy, LL.D., late Regius Professor of Laws in the University of Cambridge, and the late Beyan Walkee, M.A., LL.D. New Edition by Beyan Walker. Crown 8vo. 1885. 16s. Buckler's Origin and History of Contract in Roman Law down to the end of the Republican Period, By W. H. Btjcklkr, B.A., LL.B. Post8vo. 1895. 3s. 6d. Goodwin's XII. Tables. —By Frederick Goodwin, LL.D. London. Royal 12mo. 1886. 3s. Qd. Greene's Outlines of Roman Law. — Consisting chiefly of an Analysis and Summary of the Institutes. For the use of Students. By T. Whitcombe Geeene, Barrister-at-law. Fourth Edition. Foolscap 8vo. 1884. 7s. Qd. *,* All standard Law Works are kept in Stock, in law calf and other bindings. 26 STEVENS AND SONS, LIMITED, ROMAN LAW— continued. Grueber's Lex Aquilia, — The Roman Law of Damage to Property : being a Commentary ou the Title of the Digest " Ad Legem Aqui- liam" (ix. 2). With an Introduction to the Study of the Corpus Iuris Civilis. By Erwin Grueber, Dr. Jur., M.A. 8vo. 1886. 10s. 6c?. Holland's Institutes of Justinian. — Second Edition. Extra fcap. Svo. 1881. 5*. Holland and Shadwell's Select Titles from the Digest of Jus- tinian. — Demy Svo. 1881. 14.?. Holland's Gentilis, Alberici, I. CD., I.C.P.R., de lure Belli Libri Tres. — EdiditT. E. Holland, LCD. Small 4to., half-morocco. 21*. Monro's Digest XIX. 2, Locati Conducti. Translated, with Notes, by C H. Monro, M.A., Fellow of Gonville and Caius College. Crown Svo. 1891. 5*. Monro's Digest XLVII, 2, De Furtis. Translated, with Notes, by 0. H. Monro, M.A., Fellow and Lecturer of Gonville and Caius College. Crown 8vo. 1893. 5s. Moyle's Imperatoris Justiniani Institutiones, — Second Edition. 2 vols. Demy Svo. 18S9 — 1890. 11. 2s. Poste's Elements of Roman Law. — By Gaius. With a Translation and Commentary. Third Edition. By Edward Poste, Esq., Barrister- at-Law. Demy 8vo. 1890. 18s. Roby's Introduction to the Study of Justinian's Digest, con- taining an account of its composition and of the Jurists used or referred to therein. By H. J. Roby, M.A. Demy Svo. 1886. 9s. Roby's Justinian's Digest, — Lib. VII., Tit. I. De Usufructu, with a Legal and Philological Commentary. By H. J. Roby, M.A. Demy Svo. 1886. 9s. Or the Two Parts complete in One Volume. Demy Svo. 18s. Sohm's Institutes of Roman Law. — By Rudolph Sohm, Professor in the University of Leipzig. Translated (from the Fourth Edition of the German) by J. C Ledlie, B.C.L., M.A. With an Introductory Essay by Erwin Grueber, Dr. Jur., M.A. 8vo. 1892. 18s. Walker's Selected Titles from Justinian's Digest. — Annotated by the late Bryan Walker, M.A., LL.D. Part I. Mandati vel Contra. Digest xvii. i. Crown Svo. 1879. 5s. Part II. De Adquirendo rerum dominio, and De Adquirenda vel amittenda possessione. Digest xli. 1, 2. Crown Svo. 1880. 6s. Part III. De Condiotinmbus. Digest xh. 1 and 4 — 7, and Digest xiii. 1—3. Crown 8vo. 1881. 6s. Walker's Fragments of the Perpetual Edict of Salvius Julianus. Collected, arranged, and annotated by Bryan Walker, M.A., LL.D., late Fellow of Corpus Christi College, Cambridge. Cr. 8vo. 1877. 6s. Whewell's Grotius de Jure Belli et Pacis, with the Notes of Bar- beyrac and others ; accompanied by an abridged Translation of the Text, by W. Whewell, D.D. 3 vols. Demy 8vo. 1853. 12s. The Translation separate. 6s„ RULING CASES— Campbell.— Vide "Digests." SALE OF GOODS— Lely and Craies' Sale of Goods Act, 1893. — W r ith Introduction, Notes, and Index. By J. M. Lely and W. F. Craies, Esqrs., Barristers-at-Law. Royal 8vo. 1894. Net Is. * m * All standard Law Works are kept in Stock, in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. 27 SALES. — Blackburn on Sales. A Treatise on the Effect of the Con- tract of Sale on the Legal Rights of Property and Possession in Goods, Wares, and Merchandise. By Lord Blackburn. 2nd Edit. By J. C. Graham, Esq., Barrister-at-Law. Royal 8 vo 1885. II. Is. " "We have no hesitation in saying that the work has been edited with re- markable ability and success." — Law Quarterly Review. SALES OF LAND.— Clerke and Humphry's Concise Treatise on the Law relating to Sales of Land. By Aubrey St. John Clerke, and Hugh M. Humphry, Esqrs., Barristers-at-Law. Royal 8vo. 1885. U. 5s. SALVAGE. — Kennedy's Treatise on the Law of Civil Salvage.— By the Hon. Sir William: R. Kennedy, a Justice of the High Court. Royal Svo. 1S91. 12s. '• A learned and scholarly exposition of an important branch of maritime law." — Solicitors' J our mil. "The best work on the law of salvage. It is a complete exposition of the subject, and as such is accurate and exhaustive." — Law Times. SHERIFF LAW. — Mather's Compendium of Sheriff Law. espe- cially in relation to Writs of Execution. — By Philip E. Mather, Solicitor and Notary, formerly Under Sheriff of Newcastle-on-Tvne. Royal 8vo. 1894. ' 25s. "We think that this book will be of very great assistance to any persons who may fill the positions of high sheriff and under-sheriff from this time forth. "We go further, for we are prepared to state our belief that the whole of the legal profession will derive great advantage from having this volume to consult." — Law Times. SHIPOWNERS. — Holman's Handybook for Shipowners and Masters. Third Edition. By H. Holman, Esq., Barrister-at-Law. Royal Svo. 1892. 5s. " The work is well arranged and well written." — Law Journal. SHIPPING.— Pulling's Merchant Shipping Act, 1894.— With Intro- duction, Notes, and Index. By Alexander Pulling, Esq., Barris- ter-at-Law. Royal Svo. 1894. Net 6s. Pulling's Shipping Code ; being the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60) ; With Introduction, Notes. Tables, Rules, Orders, Forms, and a Full Index. — By Alexander Pulling, Esq., Barrister-at-Law. Royal 8vo. 1894. Net Is. 6d. Interleaved and bound in blue leather, net lis. Temper-ley's Merchant Shipping Act, 1894 (57 & 58 Vict, c. 60;. With an Introduction ; Notes, including all Cases decided under the former enactme?its consolidated in this Act ; a Comparative Table of Sections of the Former and Present Acts ; an Appendix of Rules, Regulations, Forms, etc., and a Copious Index. — By Robert Temperley, Esq., Barrister-at-Law. Royal 8vo. 1895. 25s. " There is evidence of unusual care and industry in Mr. Temperley's elaborate work, by far the most comprehensive which has yet appeared on this lengthy and important consolidating measure." — Law Times. "A full, complete, and most satisfactory work." — Law Q , to, July, 1895. " The book is a monument of well-directed industry and knowledge directed to the elucidation of the most comprehensive and complicated Act of recent year-." — Law Journal. SLANDER.— Odgers.— Vide "Libel and Slander." SOLICITORS.— Cordery's Law relating to Solicitors of the Supreme Court of Judicature. With an Appendix of Statutes and Rules, and Notes mi Appointments open to Solicitors, and the Right to Admission to the Colonies. Second Edition. By A. Cordery, Esq., Barrister-at-Law. Demy Svo. 1888. lGs. Turner. — Vide "Conveyancing" and " Vendors and Purchasers." •»• All standard Law Works are kept in Stock, in law calf and other bindings. 28 STEVENS AND SONS, LIMITED, SPECIFIC PERFORMANCE.— Fry's Treatise on the Specific Performance of Contracts. By the Bight Hon. Sir Edward Fry. Third Edition. By the Author and E. Portsmouth Fry, Esq., Barrister- at-Law. Royal Svo. 1892. II. 16*. " The standard work on Specific Performance." — Lata Gazette. STAMP ACTS.— Highmore's Stamp Act, 1891, and the Stamp Duties Management Act, 1891, With an Introduction and Notes, and a copious Index. By Nathaniel Joseph Highmore, Esq., Barrister- at-Law, Assistant -Solicitor of the Inland Revenue. Demy Svo. 1891. 5s. "A useful guide to those who desire to understand the present state of the stamp laws." — Law Journal. STATUTE LAW.— Wilberforce on Statute Law. The Principles which govern the Construction and Operation of Statutes. By E. Wilberforce, Esq., Barrister-at-Law. 1881. 18s. STATUTES, and vide " Acts of Parliament." Chitty's Statutes. — New Edition. — The Statutes of Practical Utility, from the earliest times to 1894 inclusive. Arranged in Alpha- betical and Chronological Order ; with Notes and Indexes. Fifth Edition. By J. M. Lely, Esq., Barrister-at-Law. Royal 8vo. Complete with Index. In 13 Volumes. 1894-1895. 13/. 13*. Annual Supplement for 1895. By J. M. Lely, Esq. 5s. " It is needless to enlarge on the value of ' Chitty's Statutes ' to both the Bar and to Solicitors, for it is attested by the experience of many years. "—The Times. " We have examined, with some care and much interest, each volume as it has come with rapidity and accuracy from the press, and we must confess to some amazement at the remarkable skill and expedition with which the compilation has progressed. Not only to lawyers, but to all concerned with the laws of Eng- land, Chitty's Statutes ot Practical Utility are of essential importance, whilst to the practising lawyer they are an absolute necessity." — Law Times, Oct. 19, 1895. " ANNOTATED ACTS."— An Edition of the Leading Statutes. With Explanatory Introduction, Notes, and full Index. Already Published: — The Sale of Goods Act, 1893 (56 & 57 Vict. c. 71), with Introduc- tion, Notes, and Index. — By J. M. Lely and W. F. Craies. Net Is. The Finance Act, 1894 (57 & 58 Vict. c. 30) ; with Notes and Index, and an Introduction specially directed to the Death Duties as affected by the Act. — By J. M. Lely and W. F. Craies. Net Is. The Copyhold Act, 1894 (57 & 58 Vict. c. 46) ; with a short Intro- duction, Notes, and Index. — By W. A. Peck, Esq., Barrister-at- Law. Net Is. 6d. The Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60); with Introduction, Notes, and Index. — By Alexander Pulling, Esq., Barrister-at-Law. Net 6s. The Building Societies Act, 1894 (57 & 58 Vict. c. 47); with Intro- duction and Index. — By W. F. Craies, Esq., Barrister-at-Law. Net Is. The London Building Act, 1894 (57 & 58 Vict. c. ccxiii) ; with Introduction, Notes and Index. By W. F. Craies, Esq., Barrister- at-Law. Net 3s. %* All standard Law Works are kept in Stock, in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. 29 SUMMARY CONVICTIONS.— Paley's Law and Practice of Sum- mary Convictions under the Summary Jurisdiction Acts, 1848 — 1884; including Proceedings Preliminary and Subse- quent to Convictions, and the Responsibility of Convicting Magistrates and their Officers, with the Summary Jurisdic- tion Rules, 1886. and Forms.— Seventh Edition. By W. H. Macnajhara, Esq., Barrister-at-Law. Demy 8vo. 1892. 24s. Wigram. — Vide "Justice of the Peace." TAXPAYERS' GUIDES.— Vide "House," "Income," & "Land Tax." THEATRES AND MUSIC HALLS.— Geary's Law of Theatres and Music Halls, including Contracts and Precedents of Contracts. — By W. X. M. G-eaey, J. P. With Historical Introduc- tion. By Jaues Williams, Esqrs., Barristers -at -Law. Svo. 1885. os. TITH ES. — Easterby's History of the Law of Tithes in England. — By W. Easterby, of the Middle Temple. Demy Svo. 1888. 7*. Qd. Studd's Law of Tithes and Tithe Rent-Charge. — Being a Treatise on the Law of Tithe Rent-Charge, "with a sketch of the History and Law of Tithes prior to the Commutation Acts, and including the Tithe Act of 1891, with the Rules thereunder. Second Edition. By Edward Fairfax Studd, Esq., Barrister-at-Law. Royal 12mo. 1891. 6s. " This work is thoroughly reliable." — Solicitors' Journal. TORTS. — Addison on Torts. — A Treatise on the Law of Torts; or Wrongs and their Remedies. Seventh Edition. By Horace Surra, Esq., Bencher of the Inner Temple, Metropolitan Magis- trate, Editor of "Addison on Contracts," &c, and A. P. Perceval Keep, Esq.. Barrister-at-Law. Royal 8vo. 1893. 1/. 18s. " As an exhaustive digest of all the eases -which are likely to be cited in practice it stands without a rival." — Law Journal. " As now presented, this valuable treatise must prove highly acceptable to judges and the prof ession." — Law Times. " An indispensable addition to every lawyer's library." — Law Magazine. Ball's Leading Cases on the Law of Torts, with Notes. Edited by W. E. Ball, LL.D., Esq., Barrister-at-Law, Author of "Prin- ciples of Torts and Contracts." Royal Svo. 1884. 11. Is. Bigelow's Elements of the Law of Torts. — A Text-Book for Students. By Melville M. Bigelow, Ph.D., Lecturer in the Law School of the University of Boston, U.S.A. Crown Svo. 1889. 10s. 6d. Innes' Principles of the Law of Torts. — By L. C. Innes, lately one of the Judges of the High Court, Madras, Author of "A Digest of the Law of Easements." Demy Svo. 1891. 10s. Gd. "A useful addition to any law library." — Law Quarterly Beview. "... A welcome addition to the library of the student and the practitioner." — Law Times. Pollock's Law of Torts: a Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law. Eourth Edition. By Sir Frederick Pollock, Bart., Barrister-at-Law. Author of "Principles of Contract," " A Digest of the Law of Partnership," &c. Demy 8vo. 1895. 21s. " Concise, logically arranged, and accurate." — Law i "A book which is well worthy to stand beside the companion volume on 'Contracts.' Unlike so many law-books, especially on this subject, it is no mere digest ol cases, but bears the impress of the mind of the writer from beginning to end." — Law Joui %* All standard Law Works are kept in Stuck, in laic calf and other bindings. 30 STEVENS AND SONS, LIMITED, TORTS — continued. Shearwood's Sketch of the Law of Tort for the Bar and Solicitors' Final Examinations. By Joseph A. Sheabwood, Esq., Barrister-at- Law. Royal l'imo. 1886. 3*. TRADE MARKS.— Aston.— Vide "Patents." Sebastian on the Law of Trade Marks and their Registration, and matters connected therewith, including a chapter on Goodwill ; together with the Patents, Designs and Trade Marks Acts, 1SS3-8, and the Trade Marks Rules and Instructions thereunder ; Forms and Precedents; the Merchandize Marks Act, 1887, and other Statutory Enactments; the United States Statutes, 1870-81, and the Rules and Forms thereunder ; and the Treaty with the United States, 1877. Third Edition. By Lewis Boyd Sebastian, Esq., Barrister-at- Law. Demy8vo. 1890. 11. 5s. " Stands alone as an authority upon the law of trade-marks and their regis- tration." — Law Journal. "It is rarely we come across a lawbook which embodies the results of years of careful investigation and practical experience in a branch of law, or that can be unhesitatingly appealed to as a standard authority. This is what can be said of Mr. Sebastian's book." — Solicitors' Journal. Sebastian's Digest of Cases of Trade Mark, Trade Name, Trade Secret, Goodwill, &c, decided in the Courts of the United Kingdom, India, the Colonies, and the United States of America. By Lewis Boyd Sebastian, Esq., Barrister-at-Law. 8vo. 1879. 11. Is. " "Will be of very great value to all practitioners who have to advise on matters connected with trade marks." — Solicitors' Journal. TRAMWAYS.— Sutton's Tramway Acts of the United Kingdom; with Notes on the Law and Practice, an Introduction, including the Proceedings before the Committees, Decisions of the Referees with respect to Locus Standi, and a Summary of the Principles of Tramway Rating, and an Appendix containing the Standing Orders of Par- liament. Rules of the Board of Trade relating to Tramways, &c. Second Edition. By Henby Sutton, assisted by Robebt A. Ben- nett, Barristers-at-Law. Demy 8vo. 1883. 15*. TRUST FUNDS. — Geare's Investment of Trust Funds, — Incorpo- rating the Trustee Act, 1888. Second Edition. Including the Trusts Investment Act, 1889. By Edwabd Aetjndel Geaee, Esq., Banister- at-Law. Royal 12mo. 1889. 7s. dd. TRUSTS AND TRUSTEES. — Ellis' Trustee Act, 1893, including a Guide for Trustees to Investments. By Abthur Lee Ellis, Esq., Barrister-at-Law. Fifth Edit. Roy. 12mo. 1894. 6s. " The entire Act is annotated, and the way in which this is done is satis- factory." — Law Journal. " Mr. Arthur Lee Ellis gives many valuable hints to trustees, not only with regard to the interpretation of the measure, but also with regard to invest- ments." Godefroi's Law Relating to Trusts and Trustees. — Second Edit. By Henby Godefeoi, of Lincoln's Inn, Esq., Barrister-at-Law. Royal 8vo. 1891. 11. 12s. "The second edition of this work which lies before us is a model of what a legal text-book ought to be. It is clear in style and clear in arrangement." — Law Times. * # * All standard Law Works are kept in Stock, in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. 31 VENDORS AND PU RCHASERS. — Dart's Vendors and Pur- chasers. — A Treatise on the Law and Practice relating to Vendors and Purchasers of Real Estate. By the late J. Henry Dart, Esq., one of the Six Conveyancing Counsel of the High Court of Justice, Chancery Division. Sixth Edition. By William Barber, Esq. , Q.C., Richard Burdon Haldane, and William Robert Sheldon, Esqrs., Barristers-at-Law. 2 vols. Royal 8vo. 1888 3/. 15*. Turner's Duties of Solicitor to Client as to Sales, Purchases, and Mortgages of Land. — Second Edition. By W. L. Hacon, Esq., Barrister-at-Law. Demy 8vo. 1893. 10*. 6d. " The most skilled in practical conveyancing would gain many useful hints from a perusal of the book, and we recommend it in all confidence." — Law Notes. See also Conveyancing. — " Turner," Webster's Law Relating to Particulars and Conditions of Sale on a Sale of Land. — Second Edition. By William Frederick Webster, Esq., Barrister-at-Law. (In the press.) WAR, DECLARATION OF.— Owen's Declaration of War,— A Survey of the Position of Belligerents and Neutrals, with relative considerations of Shipping and Marine Insurance during War. By Douglas Owen, Esq., Barrister-at-Law. Demy 8vo. 1889. 21*. WILLS. — Theobald's Concise Treatise on the Law of Wills. — Fourth Edition. By H. S. Theobald, Esq., Barrister-at-Law. Royal 8vo. 1895. 30*. " A concise and convenient work of reference. ... A condensed and trust- worthy digest." — Law Quarterly Review, July, 1S95. " Comprehensive though easy to use, and we advise all conveyancers to get a copy of it without loss of time." — Law Journal, June 8, 1895. " Of great ability and value. It bears on every page traces of care and sound judgment." — Solicitors' Journal. '• The work is, in our opinion, an excellent r ne, and of very great vilue, not only as a work of reference, out also lor those who can afford t > give special time to the study of the subject with which it deals." — Law Student's Journal, July, 1895. Weaver's Precedents of Wills. — A Collection of Concise Precedents of Wills, with Introduction, Notes, and an Appendix of Statutes. By Charles Weaver, B.A. Post 8vo. 1882. 5*. WINDING UP. — Palmer's Company Precedents.— For use in rela- tion to Companies, subject to the Companies Acts, 1862 — 1890. Part II. Winding-up and Arrangements, with copious Notes, and an Appendix of Acts and Rules. Sixth Edition. By Francis Beau- fort Palmer, assisted by Frank Evans, Esqrs., Barristers-at-Law. Royal 8 vo. 1896. (Nearly ready .) " Simply invaluable, not only to company lawyers, but to everybody con- nected with companies." — Financial News. WRECK INQUIRIES.— Murton's Law and Practice relating to Formal Investigations in the United Kingdom, British Posses- sions and before Naval Courts into Shipping Casualties and the Incompetency and Misconduct of Ships' Officers. With an Introduction. By Walter Murton, Solicitor to the Board of Trade. Demy 8vo. 1884. 1/. 4*. WRONGS.— Addison, Ball, Pollock, Shearwood.— Fuk "Torts." STEVENS AND SONS, Ld., 119 & 120, CHANCERY LANE, LONDON. NEW WORKS AND NEW EDITIONS PREPARING FOR PUBLICATION. Annual County Court Practice, 1896. — By His Honour Judge Shyly, Q.C. [Ready in January.) Annual Digest, 1 895. —By John Mews, assisted by A. H. Todd, Esqrs., Barristers-at-Law. (In preparation ) Campbell's Ruling Cases. — Arranged, Annotated and Edited by Robert Campbell, Esq., Barrister-at-Law ; with American Notes by Irving Browne, Esq. Vol. VI., " Contracts." (Nearly ready.) Vol. VII. Conversion — Criminal Law. (In the press.) To be completed in about 25 Volumes. Prospectus on application. d'Eyncourt's Employers' Liability. — Position of Workmen and Pro- cedure in Actions. By E. Tennyson d'EYNCouET, Esq., Barrister-at- Law. (/// preparation.) Dicey's Digest of the Law of England with reference to the Conflict of Laws.— By A. V. Dicey, Esq., Q.C, B.C.L. With American Notes, by Professor Moore. (In the press.) Goddard's Treatise on the Law of Easements. — By John Ley- bourn Goddard, Esq., Barrister-at-Law. Fifth Edit. (In the press.) Lowndes' Practical Treatise on the Law of Marine Insurance. — Third Edition. By Walter Lowndes, Esq. (In preparation.) Lush's Law of Husband and Wife. — Second Edition. By C. Mon- tague Lush, Esq., Barrister-at-Law. (Nearly ready.) Macdonell's Law of Master and Servant. — SecondEd. By John Mac- donell, LL.D.,Esq., a Master of the Supreme Court. (In preparation.) Odgers' Digest of the Law of Libel and Slander. — Third Edition. By W. Blake Odgers, Esq., LL.D., Q.C. (Nearly ready.) Palmer's Company Precedents. — Sixth Edition. Part II. : Winding - LJp. By Erancis Beaufort Palmer, Esq., Barrister-at-Law. (Nearly ready.) Robbins' Treatise on the Law of Mortgage. — By L. G-. Gordon Bobbins, Esq., Barrister-at-Law. (Founded on Coote's "Law of Mortgage.") (In preparation.) Roscoe's Admiralty Practice. — Third Edition. By E. S. Roscoe, Assistant Registrar, Admiralty Court, and T. Lambert Mears, Esqrs., Barrister-at-Law. (In preparation.) Russell on Crimes and Misdemeanors, — Sixth Edition . By Horace Smith, Esq., Metropolitan Magistrate, and A. P. Perceval Keep, Esq., Barrister-at-Law. 3 Volumes. (Nearly ready.) Shirley's Selection of Leading Cases in the Common Law. With Notes. By W. S. Shirley, Esq., Barrister-at-Law. Fifth Edition. By Richard Watson, Esq., Barrister-at-Law. (Nearly ready.) Steer's Parish Law,— Sixth Edition. By W. H. Macnamara, Esq., Barrister-at-Law. (In preparation.) Talbot's Law of Licensing. — Being a Digest of the Law regulating the Sale by Retail of Intoxicating Liquor. With a full Appendix of Statutes and Forms. By George John Talbot, Esq., Barrister- at-Law. (In the press.) Webster's Law Relating to Particulars and Conditions of Sale on a Sale of Land, — Second Edition. By William Frederick Webster, Esq., Barrister-at-Law. (In the press.) STEVENS AND SONS, Ld., 119 & 120, CHANCERY LANE, LONDON. i %ss. STEVENS AND SONS, LIMITED, 119 & T20, CHANCERY LANE, LONDON. <**' [75th YEAR OF ISSUE. Law Journal Reports. THE CHEAPEST, BEST, MOST ACCURATE, AND OLD EST - ESTABLISHED REPORTS. »>£«- STEVENS AND SONS, LIMITED, being now the Proprietors of these old-established Eeports, beg to announce that in addition to the many improvements they have been able to introduce, they have now made arrangements for publishing a Quarterly Digest or Summary of every Case of whatever import;: The Statutes will be, as hitherto, specially printed by the Queen's Printers, and supplied with the Reports or not as desired. The Annual Digest of all the Reported Decisions of the Superior Courts will be supplied to all Subscribers desirous of taking it at a reduced rate. Subscribers to the LAW JOURNAL REPORTS wilt find the following advantages : — 1. Conciseness and Accuracy. On the questio n of accuracy the Law Journal Reports have never heen impeached. 2. Speedy Publication o! the Cases. 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New Orders and Rules of Court, Cause Lists, Articles by Emm©P Specialists, Personal Information, Notices of all new Law Books, &c. *"•» %* A Catalogue of New Law Works gratis on applied foo, ^ E ^r,,^Au FOSNU * :'.'"■ STEVENS AND SONS, LIMITED, 119 & 120 UC SOUTHERN REGIONAL LIBRARY FACILITY NOW READY, Vois.g.TO V.; Abahdl...-* a °°° !g, 58 1 55 _ „ 5 Royal 8ro., bound m half 'vellum, Price 25s. per Vol, vet. AEEANGED, ANNOTATED, AND EDITED BY ROBERT CAMPBELL, M.A., Of Lincoln's Inn, Barrister-at-Laiv, Advocatt of tin- Scotch Bar. ASSISTED BY OTHER MEMBERS OF THE BAR. w H ES AMERICAN NO By IEYING BEOWNE, Former!)/ Editor of the "American Reports" §c. £3= Subscribers for Five Volumes in advance will be entitled to them at £1 per Volume. V Vol. VI.: "CONTRACTS." Nearly Ready. OPINIONS OF THE PRESS. " Vol. V. of Ruling Cases is by far the most important yet issue!. This will be apparent to the most casual reader when we say it extends from Bills of Sale to Conflict of Laws, and includes both, necessarily therefore embracin g such headings as Bond, Carrier, Certiorari, Charitable Trust, Charter-party, and Church. The rapidity and fulness which mark this compilation are remarkable. As the work grows it is seen to be a perfect storehouse of the principles established and illustrated by our case law and that of the United States." — Law Times, Nov. 23, 1895. " By this time this series has become so widely known, and doubtless appre- ciated, that it becomes unnecessary to do much more than chronicle the appearance of the new volume, to state the contents, and to say that its workmanship is quite up to the former level." — La-r Jgurnal, July 13, 1895. " A work of unusual value and interest. . . . Each leading case or group of cases is preceded by a statement in bold type of the rule which they are quoted as establishing. The work is happy in conception, and this first volume shows that it will be adequately and successfully carried out." — Solicitors' Journal. "The English Ruling Cases seem generally to Lave been well and carefully chosen, and a great amount of work has been expended. . . . Great accuracy and care are shown in the preparation of the Notes." — Law Quarterly R< vu w. "The general scheme appears to be excellent, and its execution reflects the greatest credit on everybody concern d. It may, indeed, he said In constitute, foi the present, the high-watermarkof the science of book- making." /,'• vu w. "It promises to save the practitioner much time." — Pall Mall 6 " The enterprise is an ambitious ami absorbing one." — Daily V legraph. Each volume of tho "Work will contain an Alphabetical Table of Cases reported or referred to; and there will bo a General Index of Subjects as well as ii Table of Cases publish d bri the completion of the firsl 10 Volumes. It is estimated that the Work will be c arr ied out in ab out 25 Volumes. * # * Prospectus gratis on application. *.* AH Standard Law II oris arc kept in stock, in law ealj and other bindings.